author: ELLIOTT, J.

text:
    No. -
    First Circuit
    DiSALVO v. NICOLOSI
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 8.
    The burden of proof is up to the plaintiffs to show fault and negligence of the defendants in causing the wreck of an automobile.
    2. Louisiana Digest — Automobiles — Par. 4, 7.
    Where the evidence clearly shows that the wreck of an automobile was due to excessive speed of the driver and not to any negligence of the defendant driver of another automobile which he was passing, there can be no recovery of damages.
    Appeal from the Thirteenth Judicial District Court of the Parish of Evangeline. Hon. H. Pavy,, Judge.
    Action by Mrs. Anna DiSalvo, for herself and minor children, against Paul Nicolosi.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Rownd & Warner, of Springfield, attorneys for plaintiff, appellant.
    Reid & Blache, of Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit for damages on account of the death of plaintiff’s husband and father of her minor children, due to the automobile in which he was riding striking a telephone pole, the petition alleging that it was due to the fault and reckless conduct of defendant’s minor son.

The plaintiff, acting for herself as-widow in community of Tony DiSalvo and as mother of his minor children, alleges the death of her husband, the father of her children, brought about by the reckless conduct of Pino Nicolosi, minor son of defendant, in driving an automobile belonging to defendant. Defendant denies that his son was negligent in the matter and alleges that the death of plaintiff’s husband was due to the fault, careless and reckless conduct of Louis DiSalvo, minor son of the plaintiff and of Tony DiSalvo, deceased, in driving an automobile belonging to the deceased.

The district judge decided in favor of the defendant. The plaintiff appealed.

The evidence shows that a concourse of friends, relatives and connections had assembled at the residence of Charlie Danna. After a while spent at the residence of Charlie Danna, they decided to visit Tony Danna. For the purpose of getting to Tony Danna’s they divided into two parties, one party going and starting first in an automobile belonging to Paul Nicolosi and driven by his minor son, Pino Nicolosi. The balance of the party followed soon afterwards in an automobile belonging to Tony DiSalvo, driven by his minor son, Louis DiSalvo, in which Tony DiSalvo was also riding, sitting on the front seat with Louis DiSalvo. The DiSalvo car was a much faster and more powerful car than the Nicolosi car. In order to reach the residence of Tony Danna, it was necessary when about opposite and perhaps a little. east of the Florida Parish Fair Grounds Association on the Baton Rouge and Hammond Highway, to turn out of the highway into another road. There is a culvert crossing on the side of the highway a few yards west of the place where it was necessary to leave the highway, in going to Tony Danna’s, consisting of a pipe laid in the shallow ditch and through which the drain runs; the height of the culvert or pipe does not appear. Louis DiSalvo testifies that as he came up behind the Nicolosi car that Pino Nicolosi signaled to him with his hand to pass. That upon getting the signal he speeded up for the purpose, but when he got up close, and too close to check his car, that the Nicolosi car was suddenly swerved out into the road immediately in front of him in such a way that in order to keep from running over the car in front of him he was compelled to turn his car down into the ditch on the side of the road, that he did not notice the culvert in the ditch, that his car struck the end of the culvert and mounted it, but the bound and jerk was so great that his car could not be controlled and ran on without guidance until it struck a telephone pole on the side of the road, the impact demolishing the car and precipitating from it all who were in it; that his father, T'ony DiSalvo, was so badly injured in the wreck that he died as a result of his injuries. That his action in going down into the ditch was compelled by the fault of Pino Nicolosi. His testimony is corroborated by that of two boys, both of whom say that they-saw the wreck from the side of the road nearby, that the driver of the car ahead signaled to the driver of the car coming up behind to pass, but that when the car behind attempted to pass, the car in front sheered out in front of the car behind in such a way that it was compelled to either run over the car in front or take the ditch. That the car behind took the ditch, struck the pipe culvert, bounded up over it and continued on until it struck a telephone pole against which it was wrecked, etc. Pino Nicolosi and all of the occupants of the car he was driving, some four or five besides himself, as well as four occupants of the DiSalvo car contradict this testimony of Louis DiSalvo and the two boys. The occupants of the Nicolosi car admit that they knew the DiSalvo car was due behind them, as they were all going to Tony Danna’s; but they declare that they did not know that it was close behind them, that they did not hear or see it, that Pino Nicolosi did not give any signal to. pass, but that as he approached the place where he was to turn out of the highway and take the road to Tony Danna’s that he held out his left hand from the side of the car as a signal to anybody who might be behind that he was about to swerve for the purpose of turning out; that he did this and turned out into the road to Tony Danna’s, but about the time he did so they heard a noise behind them. That Pino Nicolosi stopped and they looked back and saw what had happened. They all absolve Pino Nicolosi from fault. One man and two women riding in the DiSalvo car stated as witness that when Louis DiSalvo got into the straight stretch of road leading by the Fair Grounds, he saw the Nicolosi car about a half a mile ahead and speeded up, so he said, for. the purpose of overtaking and passing it before they reached the place to turn out of the highway in order to go to Tony Danna’s. That his speed became so great that they urged him to desist; but he persisted, and the first thing they knew the car struck the pipe culvert in the ditch, made a terrific bound and struck the telephone pole on the side of the road. Another party riding in the DiSalvo car says that Tony DiSalvo, who was sitting on the front seat by his son, seeing the Nicolosi car ahead, told his son to drive up and pass it before it reached the place to turn out; that the son speeded up to the pitch stated at the. suggestion of the father. Louis DiSalvo denies that any of the occupants of his ear expressed alarm at his speed and requested him to desist, and denies that his father told him to drive fast and pass the car ahead; but he stands alone in doing so; not one of the other occupants of the car he was driving and in which they were riding as his father’s guests took the stand to support his denials, etc. It is argued that the two boys who saw the wreck are more reliable guides as to the facts than the occupants of the two cars, but we do not think so. In fact, the physical results of the impact of the DiSalvo car with the telephone pole supports the occupants of the DiSalvo car that it was running so fast that it was beyond control and could not be checked when it came up behind the Nicolosi car and that car sheered out in the road for the purpose of turning into the road to T'ony Danna’s. The mechanic who examined the DiSalvo car .after the wreck found that the six-cylinder engine had been driven back from its base about 7 or 8 inches. Our conclusion is that the DiSalvo ear at the time it was wrecked was being driven so fast that it could not be checked when it became necessary to do so on account of coming up behind a car thát swerved out in the road for the purpose of turning into another road, but due to high speed had to turn aside to keep from running over the car in front and in turning into the shallow ditch under high speed for the purpose of passing the car in front and getting into the road- ahead of it; the pipe culvert caused the car to bound up and before guidance of it could be resumed it struck the telephone pole on the side of the road. The burden of proof is upon the plaintiffs to show fault and neglect causing the wreck in the defendant. The evidence does not establish that the wreck was due to the fault of the driver of defendant’s car. The finding of the district judge is correct.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,418
    Orleans
    LAMANA AND COMPANY v. COMMUNITY BURIAL SERVICE CORP.
    (April 26, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 694.
    When the appellant fails to appear by argument or brief, and this court sees no error in the judgment it will be affirmed.
    Appeal from the First City Court, Hon. Val J. Stentz, Judge.
    Action by Lamana and Company against Community Burial Service Corporation. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gaspar Bossetta, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for services rendered and for the return of a deposit of money.

Plaintiff alleged that on June 17, 1925, it made a contract with the defendant' by which the latter agreed to employ the funeral services of plaintiff for the sum of $108 for each funeral service and for which plaintiff deposited with the defendant $108; that in accordance with said agreement the defendant placed with the plaintiff on August 29, 1925, the burial of one Couvillon for which they failed to pay $108; that thereupon plaintiff notified the defendant on December 30, 1925, that they would not handle their business in the future and requesting the return of their deposit. They pray for judgment for $216.

Judgment by . default was rendered against the defendant. The defendant appealed.

Due proof was made of plaintiff’s claim.

In this court defendant has failed to appear either by argument or by brief.

We see no error in the judgment which is therefore affirmed.


author: WESTERPIELD, J.

text:
    No. 10,174
    Orleans
    TERESE v. HOUMA MERCANTILE COMPANY, INC.
    (April 26, 1926, Opinion and Decree)
    (May 10, 1926, Rehearing Refused)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 7 (e), 8.
    Where the evidence tending to establish negligence on the part of the drivers of colliding automobile trucks is otherwise in balance, and, it appears that one of them jumped from his truck prior to the accident, and the other did not, the fault will be imputed to the jumping driver because it is probable that his truck was in control when there existed a last chance of avoiding the accident.
    Appeal from the Twenty-fourth Judicial District Court for the Parish of St. Charles, Hon. L. Robert Rivarde, Judge.
    Action by Joseph Terese against the Houma Mercantile Company, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case remanded.
    Prowell and McBride, of New Orleans, attorneys for plaintiff, appellee.
    Spearing, Miller and Mabry, of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

This suit results from a collision between two “Reo Speed Wagons” one belonging to plaintiff and the other to defendant..

Plaintiff claims $2117.60 and defendant reconvenes, asking $1080.98, as damages, alleged to have been caused by the accident. There was judgment for plaintiff for $1802.60 dismissing the reconventional demand. Defendant has appealed.

The accident occurred on the public road in the Parish of St. Charles about 20 miles from the City of New Orleans. Plaintiffs’ truck was laden with fruit and vegetables and operated as a peddler’s’ wagon in partnership with one Peter Hammond, who was driving at the time of the accident in the direction of Houma, La. Defendant’s truck was loaded with dried shrimp in barrels and was in charge of one Wilsey J. Martin as chauffeur. There were only four witnesses to the accident, two- on each- truck and each witness testified in a spirit of loyalty to the truck on ■ ■ which he was riding. Consequently, we-■have two witnesses supporting the conten-tion that plaintiff’s truck was on the right or proper side of the road and defendant’s truck on the same side or its left and improper side , and- we - also have two wit-; .nesses supporting exactly the opposite and contrary. We- are therefore unable to determine where- the trucks were just before colliding as the only thing in this connection that, is agreed upon, is that both were on the road. Nor can we get much light from the position of the trucks after the accident notwithstanding counsel’s strenuous insistence upon the illuminating character of the evidence in this respect.

In the first place it is at least doubtful whether there is any testimony showing the relative position of the trucks as they came to rest immediately after the impact.

We are referred to_ evidence of two witnesses, Messrs. Delong and Dufriend who claim to have, arrived fifteen minutes after the accident though how they determined that fact is not easy to surmise and is not explained. -These witnesses think the trucks had not been disturbed since the accident and they are in accord as to the position of the trucks when they reached the scene. But it is quite likely that the trucks had been moved for the passenger on plaintiff’s truck, Albert Stetienne,. testified that the trucks were pushed back just after the accident and John Prejean, the passenger on defendant’s truck, said they were pulled apart by a “White truck”, which appeared just after the collision and disappeared without either party being able to locate the truck or driver thereafter. Since Delong and Dufriend also claim that the trucks were moved in their presence we find nothing very satisfactory in ■ the • evidence. Besides their statement that the cars were each diagonally across the road so situated that a line drawn, parallel with-their sides would if extended.form an. acute angle with, the radiator of each facing the apex, is not .very convincing evidence of negligence upon the part of either driver, for both testify that just prior to the accident, in a last effort to avoid contact they steered their trucks in a manner calculated to affect this juxtaposition after the impact. Perhaps we should say it is suggestive - of negligence on the part of both and our first impression of this case was that the negligence -of each driver contributed to the accident. But upon further reflection and after careful reading of the record -was are of a different opinion.

We have said that' 'the testimony from which negligence might be established on the part of either driver in relation to his position on the road was in balance and nothing else' can be said of it. We have yet to consider other aspects of the case as presented by the record. Plaintiff’s driver says he was running about 16 miles per hour and seeing the defendant’s truck did not turn out of his path he endeavored to stop and had checked his speed to 6 miles per hour when the trucks collided. He says he saw the defendant’s truck coming towards him when about three-quarters of a city block distant though it seems he is of the impression that a city block is only 100 feet long. Defendant’s truck he claims was coming at great speed, 40 miles per hour, and when about 25 feet away, the driver of defendant’s truck jumped off to the left and his companion jumped to the right leaving the truck without a driver or passenger.

The driver of defendant’s truck claims to have seen the plaintiff’s truck when only 40 feet away and it has been figured by a witness in the case that if both cars were travelling toward each other at the rate of fifteen miles which defendant’s driver says was the case that the gap would be closed in nine-tenths of a second. He says his vision was somewhat affected by the fog which prevailed at the time but does not claim to have made any effort to stop his truck though he says that at fifteen miles per hour he could have stopped in seventeen feet. He makes no denial of plaintiff’s driver’s statement about jumping off though he does say in a casual manner and when asked “After you met what happened?” “I was thrown out on my left hand side.” John Prejean who was riding with defendant’s driver first stated in speaking of Martin the driver of defendant’s truck “He jumped to the left when the two trucks met. I fell out on one side and him on the other. He must have evidently been thrown out, too, afterwards.” This statement is afterwards qualified if not retracted.

We agree with the trial judge in his conclusion that the driver of the defendant’s truck jumped before the impact. Both of plaintiff’s witnesses are positive in this regard and defendant’s driver himself can hardly be said to deny it. The other person on the defendant’s truck if he does not support the proposition at least detracts nothing from it. We also agree with our brother below in holding the defendant alone as responsible for the accident for however instinctive the idea of self preservation may be, and without any criticism of the driver who jumped in obedience to its promptings, it is nevertheless self-evident that a driverless truck is less subject to control than one with a driver. If he jumped when twenty-five féet away as the other driver claimed which according to the calculations in the record would be about half a second before the impact he must have taken the pressure off the brakes, assuming he was doing what he should have done, trying to stop the car and even that short time might have been a factor. It is more probable that he jumped sooner for half a second is a little too close a margin of safety. At all events he jumped and, though it was perhaps the prudent thing to do, we must conclude that it was negligence in this instance particularly when called upon to determine the responsibility for the collision between a jumping and a non-jumping driver.

As • to the quantum of damages, we find the record most unsatisfactory. Plaintiff claimed and was allowed the full value of his truck upon the theory as alleged that it could not be repaired. On the trial of the case his counsel announced that since the filing of suit contrary to plaintiff’s information upon which he based his claim the truck had been repaired and he offered to prove the cost thereof. Upon objection the evidence was excluded upon the ground that it tended to vary the pleadings. We think the evidence should have been received. Its effect was to reduce plaintiff’s claim and amounted to a waiver, pro tanto, of it. We see no reason why this cannot be done particularly in view of the explanation accompanying the offer of proof. The other items allowed by the trial court seem to us in order but the case must be remanded for further evidence as to the cost of the repairs made necessary to plaintiff’s truck by the accident.

For the reasons asisgned the judgment appealed from is reversed and this cause remanded for further proceedings not inconsistent with this opinion and according to law.


author: CLAIBORNE,

text:
    No. 9313
    Orleans
    THIRD DISTRICT LAND COMPANY v. SMITH
    (June 7, 1926, Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest — Taxation—Par. 281.
    Notice to the owner of the property in the manner provided by law is of the essence of the validity of a tax sale.
    2. Louisiana Digest — Taxation—Par. 283.
    This notice, must be delivered to the taxpayer in person, or at his residence or place of business; failing in these, if the property is improved, the tax collector must inquire of those in possession for information to enable him to deliver a legal notice.
    3. Louisiana Digest — Taxation—Par. 281.
    Notice by advertisement addressed to unknown owners will not operate as a valid notice when by ordinary diligence the tax collector might have served the notice in the other modes provided by law.
    4. Louisiana Digest — Taxation—Par. 388, 390, 391.
    No judgment annulling a tax sale shall have effect until the price and all taxes and costs paid by the purchaser with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments be previously paid to the purchaser.
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    Action by Third District Land Company against Wade Smith. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    i Fred G. Yeith, of New Orleans, attorney for plaintiff, appellant.
    Carbajal and Gaudin, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE,

J. This is a petitory action.

The plaintiff alleged that it is the owner of the following described property:

A portion of ground in the Third District of this City designated as lot 22 of square 118 bounded by Forstall, Lizardi, Chartres, and Royal Streets and measuring 25 feet front on Forstall Street by 118 feet deep bearing No. 627 Forstall Street; that it purchased said property by act of John P. Sullivan, notary, dated August 14, 1918, from John Fitzpatrick, State Tax Collector, for the State taxes of 1917 assessed in the name of “Era Realty Company” registered in the conveyance office in book 305, p. 49; that Wade Smith is in possession of said portion of ground without any title thereto.

Plaintiff prays to be recognized as owner of said property and. for the rent of same from the date of his purchase.

The ’ defendant denied the allegations of the petition.

Rosaline Lewis, widow John Scott and Charlotte Lewis, ^wife of Philip Ware, intervened and alleged that they were the owners of the property described in plaintiff’s petition.

That they are the sole heirs of Alexander Lewis as appears by the proceedings in his succession No. 90,103, Civil District Court; that their father, Alexander Lewis, purchased said property from Douglas by Act of A. Barnett dated September 20, 1877, Reg. C. O., 110 p. 248.

That their father died January 2, 1905; that he occupied said property with his wife, whose maiden name was Amelie Madison, and with petitioners up to the time of his death; that after his death petitioners and their mother have occupied said property as owners up to the present time.

That some .time after their father’s death, by act of Fred Zengle, notary, dated June 30, 1908, the- above property was sold for the taxes of 1907 to the Star Land Company and. registered in its name; but was redeemed on August 10, 1908, although no act of redemption was ever passed.

That by act of G. Fernandez, dated February 19, 1914, Reg. C. P., b. 266, p. 185, the Star Land Company sold said property to the Era Realty Company; that on March 17, 1914, the Era Realty Company was dissolved.

That by act of John P. Sullivan dated August 14, 1918,' mentioned in plaintiff’s petition, John Fitzpartick, State Tax Collector, sold said property assessed in the name of the “Era Realty Company” for the year 1917 to plaintiff, the Third District Land Company, Reg. C. O., bk. 305, p. 49.

That the above tax sale by act of John P. Sullivan is null and void “for the reason that no valid and legal notice was given intervenors who at the time resided on said property where they cpuld easily have been found for the purposes of service”.

That the notice given was one by publication three times in 20 days addressed to unknown owners.

That the Era Realty Company was not an unknown owner, as it had a place of residence at No. 2031 Elysian . Fields Avenue contained in the City Directory for the years 1917, 1918,' 1919 and 1920.

That Wade Smith is their mother’s second husband; that intervenors have never ceased to be in the undisputed ownership and-possession'of said property.

They pray for judgment rejecting plaintiff’s demand and for judgment in their favor recognizing them as the owners of said property.

There was judgment rejecting plaintiff’s demand, reserving its right to claim from intervenors the amount paid by it at tax sale and all taxes; and recognizing intervenors as owners of the property.

From this judgment the plaintiff has appealed.

The evidence of the Deputy Tax Collector establishes that there was no notice served . other than that the property was advertised as that of “unknown owner”, two or twice, in 20 days.

The property was assessed for the year 1917 in the name of “Era Realty Company”.

It is in evidence that the city directory for the years 1917, 1918, 1919, 1920 contained the following entries:

“Era Realty Company, James E. Water-house, Manager, 2031 Elysian Fields Avenue.”

It is also proven that the intervenors lived on the property assessed No. 627 Forstall Street during those years.

There is no evidence that any other notice was served at 2031 Elysian Fields Street, the office of the Era Realty Company, or at 627 Forstall Street, the resi- ‘ dence of the intervenors' and the location of the property assessed.

! .The Constitution of 1879, Article 210, ! provides “for notice to the. delinquent in the manner to be provided by law, which 'shall not be by publication except in case of unknown owner, etc.”

The Constitution of Í898, Article 233, contains the same provision, ■ only omitting the words “which' shall not he by publication except in case^ of unknown owner”.

Sec. 50 of Act 170 of 1898, p. 370, provides “that the tax collector shall address to each .tax payer a written or printed notice that his taxes must be paid”.

Sec. 51 of the same Act provides:

“That the tax collector or sheriff shall either deliver to ehch tax payer, in person, or shall leave at his residence or place of business in the Parish of Orleans one of said notices and a return, or statement in writing of the mode of such service shall be made by the officer serving the same and be filed in the office of the tax collector or sheriff and shall be received by the courts as prima facie evidence of notice.” 105 La. 357.

In the case of Webre vs. Lutcher, 45 La. Ann. 574, 12 South. 834, the court said:

“An unknown owner of assessed immovable property is one who has no agent to represent him, and whose place of business, residence and post office address are not known' to the tax collector.” Williams vs. Chaplain, 112 La. 1075, 36 South. 859.

In the same case on rehearing the court said on p. 579:

“Our decision is not intended to give a license to tax collectors to dispense with notice to absent owners whose names are known, but whose residence is unknown, without exhausting the means provided by law for ascertaining the latter. If plaintiffs’ title had been of record, or if the land had been in possession of any one, resort to the records or to the possessor might have suggested means of tracing his residence.”

In the- case -before us the record does not show what efforts if any, were made by the tax collector to serve a notice of sale. There is no satisfactory evidence that he called at the office of the Era Realty. Company; 2031 Elysian Fields Avenue, or at-the -propferty. assessed which- was occupied by the owners.

In either case he would have ascertained the owners of the property and could have served them with notice. .

In the case of Land Devfelopment Co. praying for possession, 12 Orl. App. 147, the syllabus is as follows:

“The notice required by the Constitution must be served upon the delinquent tax debtor in the manner required'by law as an essential condition to the validity of a tax sale.”

And in the body of the opinion we read:

“It does not appear that said notice was served upon any one. The presumption arises that it was not served, since the property' was classed among the unknown, and notice given by publication in the manner provided for unknown owners. Nor was any return of any kind made stating either that any attempt had been made to serve the notice in any of the modes provided hy law, nor why it was not served, unless we assume that the word ‘unknown’ indicated that the owners could not be found.”

And on page 152:

“We are of the opinion that the notice should have been served at ‘the place of business’ of Wm. J. Irwin, No. 2422 or 2424 Washington Avenue, where he had a personal representative, where he received his mail and where the business he did in this city, however small, was conducted. An inquiry of Stiehl, his representative who had his office on the premises, or of the tenants who occupied the premises- and paid their rent to Stiehl, would have informed the tax cpllector where' and upon whom to make his service.” Webre vs. Lutcher, 45 La. Ann. 574, 12 South. 834; Myrick vs. Succession of, 43 La. Ann. 884, 9 South. 498.

In Genella vs. Vincent, 50 La. Ann. 956, 24 South. 690, the court said on p. 966:

“That Art. 210 of the Constitution, in requiring that notice should be given to the tax payer evidently contemplated that reasonably diligent steps should be taken to make the notice effective. The same views were expressed in the Successon of Lacroix vs. Lumber Co., 49 La. Ann. 1445, __________________and Hodding vs. City, 48 La. Ann. 982, 20 South. 199; and Walsh vs. Harand, 48 La. Ann. 989, 20 South. 202. The property in this case has been in possession of a tenant .from whom the tax collector could have easily obtained the information needed to enable him to perform properly his duty.”

Notice has always been decided to be of the essence of the validity of a tax sale. Without it the tax sale is a nullity. Breaux vs. Negnotto, 43 La. Ann. 426, 9 South. 502; Tutor vs. Hays, 44 La. Ann. 907, 11 South. 462; Lambert vs. Craig, 45 La. Ann. 1109, 13 South. 701; Montgomery vs. Marydale Land & Lbr. Co., 46 La. Ann. 403, 15 South. 63; Hodding vs. City of New Orleans, 48 La. Ann. 982, 20 South. 199; Genella vs. Vincent, 50 La. Ann. 956, 24 South. 690; Tensas Delta Land Co. vs. Sholars, 105 La. 357, 29 South. 908; Succession of Williams vs. Chaplain, 112 La. 1075, 36 South. 859; In re Lafferranderie, 114 La. 6, 37 South. 990; In re Sheehy, 119 La. 608, 44 South. 315; Eames vs. Woodson, 120 La. 1031, 46 South. 13; Flanagan vs. Land Development Co., 145 La. 843, 83 South. 39.

It is therefore ordered that the judgment herein be affirmed with this provision, that said judgment and this judgment shall have no effect until the price and all taxes and costs paid by the plaintiff herein, with ten per cent per annum interest on the amount of the price and taxes paid by it from date of respective payments be previously paid to said plaintiff. Flanagan vs. Land Development Co., 145 La. 843, 83 South. 39.

The plaintiff,to pay costs in both courts.


author: WESTERFIELD, J.

text:
    No. 10,002
    Orleans
    ROSENTHAL v. MENDEZ
    (May 24, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Action—Par. 10.
    In actions for damages under Article 2315, R.C.C., no default is necessary, whether the damages result from physical injuries or from injuries to property.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Jonas W. Rosenthal against Eduardo R. Mendez.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Merrick & Schwarz and H. L. Barnett, of New Orleans, attorneys for. plaintiff, appellee.
    Guión & Upton and W. W. Ogden, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff’s automobile was damaged in a collision with defendant’s automobile under circumstances which provoked an admission of liability on defendant’s part. This suit results from a failure to agree upon the quantum of damages.

Counsel for defendant quotes the language of Article 2315, .R.C.C., to the effect that “every act whatever of man which causes injury to another obliges him by whose fault it happened to repair it”, and he argues that the obligation thus imposed by law is not different, in principle, from that which results from the breach of ,a conventional obligation, and that in both instances it is an obligation to do, requiring a putting in mora as an essential preliminary to an action in damages. In other words, defendant should have been called upon to repair the damages to plaintiff’s automobile and allowed to make the repairs, which he claims could have been made for about two hundred dollars less than actually paid out for that purpose by plaintiff. He does not, however, ask the dismissal of plaintiff’s suit, as it would seem he should consistently do, but only that his demand be reduced to the amount which defendant claims he could have had the automobile repaired for.

The extension of this principle to physical injuries, the usual form of action under Article 2315 would lead to embarrassing consequences, for we apprehend that there would be as much difference in estimates of the cost of repairing the human machine as in the case of artificial mechanism, and the right to repair one’s own body, with such agencies and instrumentalities as we deem necessary or advisable is most too personal to be lightly abandoned to another —to say nothing of damages suffered when “pain and anguish rack the brow”.

Counsel recognizes this difficulty but contends that it offers no objection to the limitation of the doctrine he advocates to such actions under Article 2315 as relate to material things such as mechanical devices, etc. The argument is at least rioyel, but no authority is given in support of it, and we are aware of none. As a matter of first impression we are unresponsive.

The rule, as we understand it, is that the owner of a damaged automobile is entitled to recover the value of the repairs necessary to restore his automobile to its condition before the accident. In this case plaintiff’s car was new and, consequently, there can be no question of the repairs having improved its condition, as it was before the accident, as is sometimes the case.

Was the cost of the repairs actually made to defendant’s car and paid for by plaintiff reasonable is the only question in this case.

Many witnesses, expert mechanics and others, whose testimony extends over two hundred typewritten pages of the record, devoted much time to that issue. The trial judge, with considerable difficulty, we apprehend, reached the conclusion that $402.25 was the proper award, and we are in no position to say that in this he was manifestly wrong. The rule with respect to findings of fact by a trial court has particular application here. The judgment appealed from is affirmed.


author: MOUTON,' 'j.

text:
    No. -
    First Circuit
    KOUEBBE v. SHERIDAN
    (June 26, 1926. Opinion and Decree.)

      (Syllabus 6y the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial court on matters of fact, unless clearly erroneous, are affirmed.
    Appeal from the Parish of Washington. Hon. Prentiss B. Carter, Judge.
    Action by Joseph H. Kouebbe against Daniel E. Sheridan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed1.

      Miller •'& ' Richardson,- of Bogalusa, attorneys'for-'’plaintiff, appellee.
    Ott & Rich,. of Bogalusa, attorneys for defendant,-appellant.
   MOUTON,' 'j.

Plaintiff sues defendant in damages for timber alleged to have been illegally cut on liis land.

Judgment was rendered in favor of plaintiff, from • which defendant prosecutes this appeal.

Only questions of fact are presented for solution.

It is clearly established by R. H. Bate-man, a timber estimator, who was familiar with the lines or boundaries of the land of plaintiff, that the timber was cut on the latter’s land. It is shown by Nellie Jones that defendant cut the timber on plaintiff’s land and' had it hauled from there. In a letter written by defendant to plaintiff he practically admits that the timber was cut on plaintiff’s land, but intimates that' it was due to an error committed by Stuart, who had perhaps gone over plaintiff’s lines. It is shown by two or three witnesses that defendant told them he had bought from plaintiff the land from which -he was cutting and taking this timber. Evidently the statement so made to these witnesses by defendant was intended as á justification for his taking the timber from plaintiff’s land. The proof shows defendant had tried to buy this timber land from plaintiff. He attempted to explain .'away the statement he had made to these witnesses by saying they had misunderstood him as he had told them he was trying to ' purchase the land, but had ‘ never- -said he had bought- it. It is possible one witness might have misunderstood him, but that two or three had failed to understand what he said, is not to -be accepted as probable. Such an explanation is not at all ■ satisfactory, and with the evidence above referred to' with many corroborating facts of record,r We" have no doubt -but that defendant' had cut the timber from plaintiff’s land and without the slightest authority.

Another contention of defendant is that he had sold the timber on the -land to Stuart who he says was to pay him from the proceeds of sale of the timber. He tried to show he had no connection with the cutting and hauling of the timber which he claims had been left to the management of Stewart, the pretended purchaser. The proof is that to some parties who were engaged - in hauling or cutting the timber and to others in the vicinity, defendant was known as the one who was conducting the operations, Stewart being known only as a foreman. The fact is that one of the witnesses says Stewart told him he was working for defendant. It appears that defendant saw in one or two instances to the making of arrangements for the payment of the board bill of employees who were working in that timber; also that defendant, and not Stewart, took money out of the bank fof the payroll of the employees working in the timber. With evidence of that character, and other circumstances in the record to which it is not necessary to refer, we have no hesitancy in concluding that defendant, and not Stewart, is responsible to plaintiff for the timber taken from the property. The amount and value of the timber taken is well established by the testimony of Bateman, an experienced timber estimator, who testified in' the case.

The trial judge rendered judgment for plaintiff in the sum of $797.90 for the damages suffered by him. The evidence sustains this finding.


text:
    No. 10,433
    Orleans
    UNITED FLOUR COMPANY v. LUIZZA BROTHERS
    (May 24, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    I. Louisiana Digest — Evidence—Par. 60, 351.
    Plaintiff failed to prove his case by a preponderance of the evidence. The judgment against him is therefore affirmed.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by United Flour Company against Luizza Brothers.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. Warren Woodville, of New Orleans, attorney for plaintiff, appellant.
    J. C. 'Henriques, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for $162.50, the price of fifty sacks of Velvet flour, which the plaintiff allege!! he sold and delivered to the defendants, who had not paid for them.

Defendants deny all the allegations of plaintiff’s petition.

They aver that on October 1, 1925, plaintiff, Peter Guarino, was operating under the name of the United Flour Co., and occupied the same office with C. J. Morrison; that Guarino was the agent for the Full-Strength flour, while Morrison represented the Walnut Creek Milling Company, selling the “Velvet Flour”;- -that on October 1 one of the defendants, Philip Luizza, went to the office occupied by Guarino and Morrison; that he purchased from Guarino 50 sacks of “Full-Strength Flour” for $165.00 and from Morrison 50 sacks of Velvet for $162.00; that the 100 sacks were delivered to him by dray tickets in the name of the United Flour Company; that they paid $165.00 for the 50 sacks of Full-Strength flour purchased from it, and they paid Morrison $162.50 for the 50 sacks purchased from it; they deny that they purchased frpm the plaintiff any more than the 50 sacks of Full-Strength which they paid in January, 1924.

There was judgment in favor of defendants and plaintiif has appealed.

The sole question is from whom did the defendants purchase the Velvet flour sued for, from plaintiff or from Morrison?

The evidence satisfies us that the plaintiff who was established in business in this city received in his office two Morrison brothers and extended to them facilities for carrying on the business of selling flour 'and particularly the “Velvet” brand, and that in a short time the Morrison brothers became involved in financial transactions with Guarino; that the defendants, in plaintiff’s office, did purchase from the plaintiff 50 sacks of Full-Strength flour, for which they paid him $165.00; that on the same day the defendants purchased also from the plaintiff 50 sacks of Velvet flour for $162.50, which they paid to the Morrison brothers; that all the flour, the 100 sacks, was delivered by the plaintiff to the defendants, and that the Velvet flour was the property of the Morrison brothers. The plaintiff contends that he bought the flour from the Morrison brothers; they deny it. The Morrison brothers represented the Walnut Creek Milling Company, who were the owners of the flour.

The learned trial judge solved the difficulties of the question in his concluding questions to Guarino as follows:

“Q. Where did you get the fifty sacks of flour (Velvet) ?
“A. Prom Morrison.
“Q. Who shipped it here?
“A. The Walnut Creek Milling Company.
’ “Q. Did you pay the Walnut ■ Creek Milling Company?
“A. No, sir.

By Mr. Woodville:

“Q. You bought it from Morrison?
“A. Yes.
“Q. Why did you not pay Morrison?
“A. Because they owed me money.”

Carl. L. Morrison swears that the flour “was not sold to Guarino; it was sold to Luizza”, and “that Luizza paid them for the flour, and that he did not owe Guarino a nickel”.

It seems to us that Guarino considered himself a creditor of the Morrisons; that after he got from them 5 sacks of Velvet flour which he sold to Luizza he conceived the idea of collecting a part of what they owed him 'by treating the 50 sacks as a part payment and collecting and appropriating the price for themselves. To this proceeding the Morrisons did not agree and they took prior steps to collect the price themselves from Luizza.

But we are not satisfied that the Morrisons gave this flour to Guarino in part payment of what they owed him or that Guarino ever bought or owned the flour. He admits himself that he did not pay for it. A judgment rejecting his claim will not do him any injury, as he will still have recourse against the Morrisons, if they are indebted to him. But a judgment against the Luizzas would certainly work a ■ hardship against them by making them pay twice.

We believe the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 10,407
    Orleans
    JOHNSON v. NATIONAL CASUALTY COMPANY
    (June 7, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Courts—Par. 19.
    In determining jurisdiction, as dependent on the amount in controversy, the amount, for which, in the aspect of the case most favorable to. plaintiff, judgment could be rendered controls.
    2. Louisiana Digest — Courts—Par. 89.
    The First City Court is without jurisdiction of monied demands in excess of $300.00, but plaintiff may amend his petition, and remit the excess, when the original petition claims more than the jurisdictional limit.
    Appeal from the First City Court, Section “C”. Hon. W. V. Seeber, Judge.
    Action by Americus Johnson against National Casualty Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    J. J. Wingrave, of New Orleans, attorney for plaintiff, appellee.
    M. C. Scharff, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a-suit on an insurance policy providing for the payment of a sick benefit in the sum of $60.00 per month.

Plaintiff .sued for $280.00 or for indemnity for an illness alleged to have extended over a period of four and two-thirds months, and, in addition, for the sum of $280.00 as double indemnity under Act — of -. ■ The prayer of the petition reads as follows:

“Wherefore, petitioner prays that a copy of this petition, together with citation, be served upon defendant, the National Casualty Company of Detroit, Mich., and after due legal delays and proceedings had, there be judgment in favor of petitioner, Americus Johnson, condemning defendant to pay petitioner the sum of Two Hundred and Eighty Dollars and double the amount of the policy No. 630029 due to said defendant refusing tp pay petitioner without reasonable grounds or provocation the weekly or monthly benefits under said policy and for attorney’s fees incurred. And for all costs and general and equitable relief.”

To this petition defendant filed an exception to the jurisdiction ratione materiae which was overruled and defendant permitted to file a supplemental petition, reducing her claim to $280.00. Whereupon defendant answered stating that plaintiff was suffering from a chronic disease and that, under the terms of its policy, its liability was limited, in such case, to sixty dollars. There was judgment for plaintiff, as prayed for, and defendant appealed.

The jurisdiction of the First City Court is limited to monied demands not in excess of $300.00. The case, as presented in the original petition involved a larger amount for on determining jurisdiction as defendant on amount in controversy, the amount for which in the aspect of the case most favorable to plaintiff judgment could be rendered controls. 15 C. J., Verbo “Courts”, page 753.

The court, therefore, had no jurisdiction of the suit as originally filed. Could it permit an amendment of the petition abandoning a part of the claim so as to confer jurisdiction?

We know of no Louisiana authority in point. Perhaps the case of Wolf vs. Witherall, 22 La. Ann. 25, has some bearing. In that case it was held that:

“The amount due at the time of the institution of the suit constitutes the matter in dispute.”

But the question there considered involved the appellate jurisdiction of the Supreme Court and the case is not analogous.

We turn to the common law jurisdictions and find the subject in much doubt. There is seemingly as much authority one way as the other.

“That parties can not, even by mutual consent, give to the court, as such, jurisdiction in a matter which is excluded by the laws of the land may be regarded as a settled axiom. All their powers are derived from this source. Hence the inevitable conclusion that one of the parties cannot give jurisdiction by his own act. And on this principle it has been held that plaintiff can not release or abandon a part of his demand and maintain an action in a summary jurisdiction for the balance.” Bent vs. Groves, 14 S. C. L. 280; Rotan Grocery Co. vs. Missouri, etc., R. Co. 142 S. W. 623, 15 C. J. 777.

There is, however, authority, perhaps the weight of authority, to the contrary.

“So a justice of the peace has power to allow an amendment of a writ returnable before trial reducing the ad damnum to a sum within his jurisdiction where he has jurisdiction over the parties and the subject matter.” Hart vs. Waitt, 3 Allen 532; Dix vs. Huntress, 3 Allen 534; Converse vs. Damariscotta Bank, 15 Me. 435, quoted in L. R. H., Vol. 28, p. 229.

In 7 R. C. L., p. 1056, the; rule is stated to be:

, “While a remission of a part of a claim is usually made by a voluntary credit before suit, or by bringing suit for a less amount than the whole, still it may be made during the pendency of the action as well as before its commencement.”

We have concluded to follow what we consider as the better opinion as expressed by the courts which uphold the right of a litigant to amend his petition by waiving the excess claimed. Under our system there is no doubt that plaintiff can waive the excess in his petition, in fact, will be held to have done so if he sues for less than is due him, in order to confer jurisdiction. We see no good reason to deny the right to amend after the filing of the suit particularly before issue joined.

On the merits the case is with plaintiff to the extent of sixty dollars admitted by defendants to be due and no more. The policy provides (Paragraph j): “Disability or illness resulting wholly or in part from tuberculosis, rheumatism, Bright’s disease, paralysis, lumbago, cancer, sciatica, neuritis, dementia or from any chronic disease, the limit of the company’s liability shall be one month as provided under Paragraph (g) and (h), anything herein to the contrary notwithstanding.” Paragraph (g) fixes the indemnity due for illness at sixty dollars per month and (h) need not be considered.

According to her physician plaintiff was a very sick woman. She had “an infection of the pleura”, “intercostal neuralgia”. She was also “pyogonie due to pus-forming bacteria”. She had “possible oedema of the lungs” and she certainly had oedema of the legs”, which the doctor is good enough. to explain as a condition in which “her legs become water-logged”. She was also troubled with acute neuritis- and threatened with- “some lesion of the kidney” and “it would not be long before tuberculosis-would develop”, and finally, in the words of the doctor.: “Every organ, in her body right now, even her brain”, was not working properly. It is small wonder that her doctor, after detailing all her illnesses, in esse an.d in posse, and describing her symptoms should admit her condition to be incurable. To our untutored minds, it would seem, without the doctor’s word for it, that medical science must “pale its ineffectual fires” before the lamentable figure of this sorely afflicted plaintiff.

The -judgment appealed from must be amended by reducing the amount awarded plaintiff to sixty dollars and it is so ordered.


text:
    No. 9281
    Orleans
    SANCHEZ v. HERZFELD
    (June 7, 1926. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Landlord and Tenant —Par. 108.
    Goods delivered on consignment by the owner to the lessee of a store to be sold by him become subject to the lessor’s privilege for rent.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by A. Sanchez against David Herzfeld.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.

      Henry J. Rhodes, of New Orleans, attorney for plaintiff, appellant.
    Weiss, Yarrut, Stich & J. A. Morales, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

The question in this case is whether the movable property of a third person contained in leased premises is subject to the lessor’s privilege.,

The plaintiff alleged that on November 1, 1922, he leased to defendant the lower portion of 1427 Orleans street for twenty-three months commencing on November 1, 1922, and ending on September 30, 1924, for the price of $18.00 per month; that the lessee failed to pay the rent for January, 1923; that this caused the maturity of all the other notes. He prayed for provisional seizure and for judgment for $378.00 with interest and costs.

The writ issued and the contents of the leased premises were seized.

J. Rabinowitz filed a third opposition and claimed to be owner, free from the lessor’s privilege, of all the property seized; he alleged that he had consigned on memorandum to the defendant herein all of said property which was to be accounted for to him as sold by the defendant and were subject to recall at will; that said property was transiently on the leased premises and was not subject to the lessor’s privilege; that the proceedings in this case are collusive. He prayed that the property seized be decreed to be his property and be delivered to him free of plaintiff’s privilege.

In answer to the third opposition the defendant, Herzfeld, denied that the third opponent consigned to. him the property seized, but alleged on the contrary that the property was delivered on various dates “under an outright sale” and was charged by third opponent against the open account of the defendant, who, in turn, gave third opponent credit-therefor to the- extent of $618.76. He prayed for the dismissal of the third opposition.

The plaintiff denied all the allegations of the petition of third opponent.

There was judgment in favor of the third opponent recognizing him as the owner of the property seized, free from plaintiff’s privilege and releasing the seizure.

The plaintiff has appealed.

The argument is that the third opponent, Rabinowitz, did not sell the things to the defendant but that he consigned them to him. Yet on the first page of his examination as a witness under the act he answers:

“Q. How much of these things did you sell to Mr. Herzfeld?
“A. Practically the line consists of that.
“Q. How is that?
“A. He bought practically the whole amount, the underwear, hosiery and dresses.
Mr. Weiss (his lawyer): “He didn’t understand.”

And then the witness proceeds;

“A. He didn’t purchase any of it, we consigned it to him.
“Q. What do you mean by consign?
“A. We simply consigned the stuff subject to our call.
“Q. You mean you consigned these goods and he was to sell them and pay you as he would sell them?
“A. Yes, sir.
“Q. And at any time, if you wanted to recall these things, you could recall them?
“A. Yes, sir.
“Q. Is that the way in which you generally make your sales?
“A. No, sir.”

In other parts of his testimony this opponent uses the words, sold, sale, buy, bought.

Then the third opponent proceeded to state that “the ledger page showing the account between the intervenor and Davis Herzfeld” had the words: “Subject to our call, consignment.” He did not write that himself; he instructed his bookkeeper to write it; he did not see him write it; he is no longer in his employ; he was not produced as a witness. He never had occasion to recall any of these sales to defendant; he has one or two other accounts like that one; he does not remember the names.

The original ledger sheet, a detachable sheet, is offered in evidence. The words, “subject to our call, consignment”, are written in red ink, and apparently in a different hand from the rest in black ink.

Below are conspicuous erasures. Then follow:

“Name: David Herzfeld.

“Address: 334 Baronne.

“Residence: 2326 Magazine St.

“Store: 1427 Orleans,

“1922 Items. Debits.

Aug. 14th R. 15 ------------------------------------ 26.05

“ 19 “ “ 21 33.20

“ 21“ “ 22 ___________________;________________ 37.50

“ 23 “ “ 24 43.00

“ 28 “ “ 29 20.00

“ 29 “ “ 30 22.50

$182.25

Continuing until the sum of the items makes up $2419.88 and upon the same ledger page are the following:

1922. Items. Credits.

August 21 __________________________________________________ 23.05

“ 19 3.00

“ 22 ::________________________________________________ 3.20

“ 23 43.00

“ 29 42.50

$182.25

Continuing until the amount of credits reached $1801.12; leaving the balance claimed of $618.76.

The first item of merchandise was sold or delivered to defendant in August, 1922; this suit was filed in January, 1923. The different part payments made appear to be on a running account. There is nothing to show that the items of merchandise delivered to defendant in August were accounted for. If they had been received by defendant on consignment he would have been the opponent’s mandatary or agent, and ip that capacity he would have owed opponent regular returns. There is no evidence ■ that defendant ever made any return to opponent. The accounts between them are the ordinary open accounts of vendor and vendee, debtor and creditor, and the account is debited with purchases and credited with payments.

There is nothing to show the terms and conditions, or the duration of this consignment. ■

The Century Dictionary thus defines the word “consign”.

4. "In com., to transmit by carrier, in trust for sale or custody; usually implying agency in the consignee.” Consignment: The act of sending or committing in trust for sale or custody, usually implying conveyance by a carrier and agency in the part of the recipient.

But it seems that the defendant left suddenly for Chicago owing to his brother’s illness; he instructed hiS' attorney-at-law and in fact, J. A. Morales, practicing lawyer at this bar, to convoke a meeting of his creditors, to decide upon the distribution of the property he was leaving behind. This meeting was held at the office of ■Mr. Morales; the opponent, Rabinowitz, was present. Mr. Morales testified that he asked opponent if his account was correct, $618.00; “that the list furnished me by Mr. Herzfeld showed a balance due in their favor on his open account of six hundred and eighteen dollars and some cents and he then looked up the list he had with him and he said that was correct, and I said if the amount was still due him and he said yes. At that time he didn’t make any mention of having sent that there on consignment or memorandum or through any special manner by which it was held for him there. In fact, he didn’t make any mention of that at all.” There was some talk at that meeting of putting the defendant in bankruptcy, but the opponent and others said they would not care to go into any expense as what was there would not justify it.

The opponent testified that he went to the meeting with Mr. Welsh.

Asked whether, at that meeting, he said that the goods had been sent there by him on consignment, he answered:

“I didn’t say anything at all. They just stood around there talking. There was about twenty-five or thirty creditors in Morales’ office, and they were talking one thing and another.”

We do not think opponent has established a case of consignment. But if he has, the C. C. Art. 2707 provides that:

“This right of pledge affects not only the movables of the lessee and under-lessee, but also those belonging to third persons, when their goods are contained in the house or store by their own consent, express or implied.”

The exception to this general rule is contained in Art. 2708 C. C. in these words:

“Movables are not subject to this right, when they are only transiently or accidentally in the house, store or shop, such as the baggage of a traveler in an inn, merchandise sent to a workman to be made up or repaired, and effects lodged in the store of an auctioneer to be sold.”

The burdeh of proof is upon the opponent to show that he comes within the exception. We do not think he has done so. His goods were delivered to the defendant in August and they were seized in the leased premises in January, five months thereafter. It cannot be said that they were there “accidentally or transiently”. It seems to us that this case comes squarely within the rule laid down in Goodrich vs. Bodley, 35 A. 525, in which the court said:

“The goods of a third person found in a leased store, where they had been consigned by their owner to the lessee, to be sold by the latter at a price fixed by the owner, with the understanding and agreement that the lessee or consignee could keep as his compensation all that he could obtain above the inventoried prices, and that no rent or storage was due by the owner, will be affected by the lessor’s privilege and are liable to the latter’s seizure for unpaid rent due by the lessee.”

Twitty vs. Clarke, 14 La. Ann. 503.

Hynson vs. Cordukes, 21 La. Ann. 553.

Johnson vs. Tacneau, 23 La. Ann. 453.

Deslix vs. Jonc, 6 Rob. 292.

Bailey vs. Quick, 28 La. Ann. 432.

7 Orl. App. 287.

And in Louque vs. Baptist, 157 La. 124, 102 South. 91, the court said:

“Goods placed by an owner who is not an undertenant, in leased store of general dealer therein for sale at fixed price for owner’s account, are not transiently in dealer’s premises within Rev. C. C. 2708, and hence are subject to lessor’s pledge.”

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that there be judgment in favor of the plaintiff. Anastasie Sanchez, rejecting the demand of intervenor and third opponent, Jacob Rabinowitz, at his cost in both courts.


text:
    Nos. 241 and 242
    First Circuit
    JUMONVILLE v. POLICE JURY OF TANGIPAHOA PARISH
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Intervention—Par. 2.
    Under Article 390 of the Code of Practice it is necessary for an intervenor to allege a cause' of action of his own which will be subserved ■ by the intervention.
    2. Louisiana Digest — Parishes—Par. 23, 25, 26; Laws — Par. 81.
    Where the legislature provided that an officer or official body shall appoint an inferior officer or official body, and provided no restriction on the power of a motion, the appointing power has authority to remove the inferior officer at his discretion and without notice.
    Appeal from the Twenty-first Judicial District Court of the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    Action by James Jumonville against Police Jury of Tangipahoa Parish, Standard Highway Company, intervenor. R. D. Fellows against Police Jury of Tangipahoa, Standard Highway Company, Inc., intervenor, consolidated. There was judgment for plaintiffs and defendants appealed.
    Intervention dismissed and judgment reversed.
    Harry Gamble and S. S. Reid, of Amite, attorneys for plaintiffs, appellees.
    A. L. Ponder, Jr., and Sr., of Amite, attorneys, for defendants, appellants.
    Benton and Benton, of Baton Rouge, attorneys for intervenor.
   ELLIOTT, J.

On March 11, 1924, the ■ Police. Jury of Tangipahoa Parish appointed James Jumonville, R. D. Fellows and D. T. Evans, the Supervising Board of Consolidated Road District A.

This Board recommended to the Police Jury that the contract for building and gravelling a road in the district be awarded to one S. A. Gano and the Police Jury acting on their recommendation awarded the contract accordingly. It afterwards turned out that Standard Highway Company, Inc., had sent in to the supervisors a bid for the same work in amount some $17,000.00 less than the amount for which the work had been awarded to Ganó.

Standard Highway Co., Inc., contested the award to Gano and the contract was annulled and set aside by the courts. See Standard Highway Co. Inc., vs. Policy Jury, 158 La. 294.

The Police Jury at their meeting, following the decision of the Supreme Court by resolution duly adopted, removed' Jumonville and Fellows from office.

Jumonville and Fellow's then instituted this suit against the Police Jury contending that the resolution was null and void and of no effect. ■ That the Police Jury had no power or authority to discharge them.

That even if the authority existed it could not be exercised except on proper grounds and after petitioners had been given notice and opportunity to appear and be heard in defense. That the charges set out in the resolution were false and untrue and had been adopted without notice to them and without their knowledge.

They prayed for and obtained an injunction restraining the Police Jury from enforcing the resolution removing them, and from interfering with them in the exercise of their duties and for judgment of recognition as supervisors.

The Police Jury in their answer admitted the appointment of plaintiffs, but denied that they had accepted the appointment and discharged the duties incumbent upon them as supervisors. They admitted removing. plaintiffs without notice, and denied that their action was null and void and of no effect. They further alleged that the enumerated charges were true. That plaintiffs acting as the agents of the Police Jury had fooled them into accepting the Gano bid. That they presented the Police Jury with only one bid, that of said Gano, representing that it was the lowest bid, when such was not the case; and that they, acting on the faith of their recommendation, had awarded the contract to Gano and had thereby been placed in the attitude of violating the law. That plaintiffs created strife and confusion and inspired litigation to tie up the road work, which it was important to carry on in harmony and peace.

In an amended answer they urged that the Constitution, makes Police Juries the governing authority over road districts; and that Act 99 of 1922, to the extent that it confers interfering authority on supervisors, if such construction be placed on the act, is unconstitutional and therefore null and void.

Standard Highway Co., Inc., intervened in the suits and joined the Police Jury in resisting the demand of the plaintiffs. It alleges that plaintiffs obstruct and interfere with it in the exercise of its rights under its contract with the Police Jury to construct and gravel the roads in said district. 'That plaintiffs fomented and inspired suits against it, are biased and prejudiced against it, preventing co-operation between them with resultant loss to intervenor and the tax payers.

Intervenor prays for judgment against plaintiffs rejecting their demand.

The plaintiffs moved to strike the interventions out, on the ground that intervenor has no interest in the suit. '

The lower court rendered judginent in favor of plaintiffs and against intervenor, striking out its interventions, and in favor of the plaintiffs and against the Police Jury, holding that the ordinance removing plaintiffs was null and void and without effect, recognized plaintiffs as members of said Supervising Board and enjoined the Police Jury from interfering with them in exercise of their duties as prescribed by law.

The Police Jury and Standard Highway Co., Inc., appealed.

Standard Highway Co., Inc., insists that it has an interest which gives it the right' to intervene. C. P., Art. 390.

When the contract which had been entered into between the Police. Jury and Gano was set aside, the Police Jury awarded intervenor the contract for constructing and gravelling thei road, as the lowest bidder for the work.

Intervenor makes various charges against plaintiffs which it will serve no useful purpose to enumerate further than has been done.

It is necessary for an intervenor to allege a cause of action of his own, which will be subserved by the intervention. It is not permissable to intervene merely for the purpose of taking sides. Intervenor’s contract with the Police Jury is not involved in this suit. Intervenor’s petition does not allege any legal cause of action against plaintiffs. No legal reason for intervention appears. The judgment striking out the intervention is therefore affirmed.

The Constitution, Sec. 1, Art. 19, provides that all officers, before entering upon the duties of their offices, shall take the oath which the Constitution prescribes. The record does not show that plaintiffs had qualified by taking the oath of an officer. Luikart vs. Yazoo & M. V. R. Company, 148 La. 349, 86 South. 894; State vs. Rini, 151 La. 163, 91 South. 664; State vs. Moreau, 153 La. 671, 96 South. 527.

The Police Jury denies that plaintiffs accepted the appointment and discharged the duties incumbent upon them as supervisors; but it is alleged and shown by the evidence, that plaintiffs acted as supervisors, without question, and that the Police Jury appointed two citizens of the road district as supervisors in their place. The plaintiffs were at least de facto officers. The new appointees are not parties to these suits and it does not appear that they have qualified by taking oath and are claiming the office of supervisors against the plaintiffs. These suits are consequently not intrusion into, or usurpation of office suits under the Revised Statutes, See. 2593, etc. Act No. 39 of 1873 and C. P., Art. 867, etc. It therefore seems that the decisions of the Supreme Court of this State on that subject have no application.

The Police Jury admits in their answer that plaintiffs were removed without notice or hearing, therefore ' the reasons which the Police Jury may have had for the amotion need not be discussed. The plaintiffs were appointed by the ’ Police Jury without request or suggestion on the part of the tax payers, and the only question for decision is, whether the Police Jury had the power of amotion without notice and opportunity to appear and show cause to the contrary.

The Constitution, Sec. 14 of Art. 14 (c) makes police juries the governing authority in all matters appertaining to the incurring of debts, issuance of bonds for the purpose of building and constructing public roads and of the work of constructing and gravelling roads.

Section 6, Act 118 of 1921, provides that:

“The governing authority of districts and sub-road districts created hereunder shall be: over road and sub-road districts composed of territory wholly within the parish: The Police Jury of the parish.”

Section 1 (amd Act 39 of 1922):

“The police jury may and shall, at the request of 50 per cent or more of the property tax payers, resident in any road district, appoint a supervising, board of three property tax payers residing in said district, and the, property tax payers thus requesting will have the right to suggest the names of the members of said supervising board, and in the event of a contest or failure to suggest, the police jury will exercise discretion of choice. The said supervising board shall have the power and authority if a road bond or tax is voted, to provide the specifications under the terms of this Act for road construction, and supervise the construction of said roads in said district. The supervisors shall be the agents of the police jury, in all matters pertaining to road construction in their respective districts.
“The supervisors of road districts shall elect a chairman and secretary from their own number who shall serve without pay. The supervisors shall meet each week during road construction; but only on call of chairman, after completion, of construction, when their authority will extend to the making of recommendations to the police jury for the proper maintenance and repair of roads in the district. Supervisors, during construction, shall, with the concurrence of the police jury, approve all estimates of work before it is paid for by the governing body. The police jury shall retain supervisory authority in all matters appertaining to road construction, location and maintenance.”

Sec. 8:

“The officers of the police jury of the parish in which the road district or sub-road district is located, shall be the officers of the road districts and ex-sub-road districts created thereunder.
“The police jury shall have power — To appoint all officers necessary to carry into execution the parish regulations, and to remove them from office.” Revised Statutes. Sec. 2743, No. 11 (amd Act 202 of 1902).

We are not aware of any law repealing or modifying this section of the Revised Statutes.

The Constitution, Sec. 14, of Art. 14 makes police juries the governing authority in all matters pertaining to the subject of incurring debts and voting bonds for road purposes, and in the construction and gravelling of public roads. The legislature cannot modify or restrict this authority.

The Act 99 of 1922, taking all of its provisions together, makes supervisors the agents of the police juries. They have no authority which they can exercise independent of, and which cannot be governed and controlled by the police jury.

Granting that the words of the Act “May and shall on request, etc.” make it a mandatary duty on the part of the police jury to appoint supervisors, yet that requirement is not different from the law which makes it their duty to appoint their clerks, secretaries and a parish treasurer, and under .Revised Statutes, Sec. 2743, No. 11, the police juries have the power to remove such officers at their discretion, and are not bound to assign reasons nor give notice to the appointee to show cause why they should not be removed.

The duty of supervisors under Act 99 of 1922 consists in advising and carrying out details and regulations concerning road construction and maintenance. Appointees with such duties are subject to removal. It is not possible to conclude that supervisors are not subject to removal by police juries. Their power is not restricted for cause only, and after notice and hearing. No statutory limitation of the right appearing, the power may be exercised at their discretion.

In Peters vs. Bell, 51 La. Ann. 1621, 26 South. 442, the city engineer of the City of New Orleans removed an assistant engineer who had been appointed by him under the law on the subject, without previous notice. The officer removed sued the city to compel payment of his salary, contending that the engineer could not remove him. The supreme court held that the city engineer, having appointed him, by virtue of the law on the subject and his appointment not being for any definite term, that the city engineer had the power to remove him without notice and without assigning any cause; there being no provision in the law to the contrary. The syllabus of the case reads in part:

“The power of appointment carries with it the power to remove, when the appointment is not made for a special term.”

On page 1925 of the opinion the court said:

“Although as relates to the naked question of discharge, we are convinced that there is somewhere the power of removal of an officer of a municipal corporation. It is one of the inherent powers, and from the reason of things, from the nature of corporations and for the sake of order and good government the power is incidental.”

Quoting Dillon on Municipal Corporations. According to this author, municipal corporations have the power of amotion at discretion when the appointment is during pleasure. In the same opinion, p. 1627, the court says:

“This brings us to the conclusion that the city engineer had the power to appoint his deputies, and that until the power was lodged elsewhere he had the right to remove them. When the officer is a deputy, whose tenure of office is not fixed, in the absence of any statutory prohibition, the power to remove him was incidental to the power of appointment.” Citihg authorities. Among the cases cited is In re Hennen, 13, pp. 230, 258, from which the Supreme Court quotes as follows:
“All offices, the terms of which are not fixed by the constitution, must be held either during good, behavior or. during the life of the incumbent, or must be held at the will and discretion of some department of the government subject to removal at pleasure.”

It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life; and if removable at pleasure, by whom is such removal to be made?

In the absence of all constitutional provision or statutory regulations to the contrary, it would seem a sound and necessary rule to consider the power of removal as incident to the power of appointment.” In re Hennen, 13 p. 230, p. 258.

In Eckloff vs. District of Columbia, 135 U. S. 240, it appears that the Commissioners of the District of Columbia had power and authority to create offices, reduce the number of employees, remove from office and make appointments authorized by law. Acting under this authority the Commissioners removed a police lieutenant without charge, notice or hearing. The removal was carried to court, and speaking of the law on the subject of. removal, the Supreme Court' said:

“If this were all the legislation, there would be no question for a general power of removal carries with it the right to remove at any time or in any manner deemed best, with or without notice.”

And on the next page:

“Pull authority is given to the Commission, and in the absence of rules and regulations dictating a different procedure, its acts of summary dismissal cannot be challenged.”

See also, Keim vs. U. S., 177 U. S. 290, pp. 293 and 294.

Regan vs. U. S., 183, U. S. 512.

Burnap vs. U. S., 252 U. S. 512.

In Ehret vs. Police Jury, 136 La. 391, 67 South. 176, the police jury removed its secretary. The secretary brought suit to recover his salary, contending that he had been employed for four years and was discharged after four months, without cause or- ground of complaint. It is evident from the report of the case that no previous notice had been given him.

The court quoting Revised Statutes, Sec. 2743, No. 11, holds that the police jury has the right to summarily remove any officer by them appointed.

The syllabus of the case reads:

“The power of removal conferred by law upon police juries enters 'as much into the employment of a secretary as it does the power of appointment, and a police jury has no capacity to avoid the law or abrogate its own functions with respect to either. If it were otherwise, an outgoing police jury might impose upon its successors a secretary unacceptable to the new police jury, and not in sympathy with the policy of the body;” and quotes from Richard vs. Rousseau, 35 A. 923, in which a parish treasurer had been removed as follows: “In conferring on police juries the right of appointment and removal the legislature intended to enable those bodies, in cases of expediency and urgency, to act promptly for the protection and preservation of the public interest.”

It is settled by authority that where the legislature provides that an officer or official body shall appoint an inferior officer or official body, and provided no restriction on the power of amotion, the appointing power has authority to remove the inferior officer at his discretion and without notice. Such being the case the -defendant Police Jury had the power and authority without notice and at their discretion, to remove the plaintiffs, Jumonville and Fellows, from the Supervising Board of Consolidated Road District A, and the courts have no right to interfere on account of the cause or merits of the matter.

The judgment appealed from is therefore annulled, avoided and set aside, and the demand of the plaintiffs, James Jumonville and R. D. Fellows against the Police Jury of the Parish of Tangipahoa, in their respective suits above mentioned, is rejected at their cost in both courts.


text:
    No. 9327
    Orleans
    CRESCENT FURNITURE AND MATTRESS COMPANY v. KLUMP & CO.
    (June 21, 1926, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages—Par. 69, 71, 77.
    The damages for the inexecution of a contract of sale are the difference between the contract price of the thing sold and its market price at the time and place at which it was to have been delivered and not at a time subsequent.
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    Action by Crescent Furniture and Mattress Company, Inc., against Wm. F. Klump and Company. There was judgment for defendant and plaintiff appealed.
    Judgment reversed, plaintiff’s demand dismissed as in case of non-suit.
    Dart, Kernan and Dart, of New Orleans, attorneys for plaintiff, appellant.
    Buck, Walshe and Buck, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit based upon the failure of the defendant to comply with an agreement of sale.

Plaintiff alleged that in the year 1921, it was incorporated under the name of “Crescent Felt Mattress Co.”; that on July 26, 1922, its charter was amended so as to change its name to “Crescent Furniture and Mattress Co., Inc.”

That on August 29, 1921, the defendant confirmed to plaintiff the sale of 100 bales of cotton linters as follows:

“New Orleans, La., August 29th, 1921.
“Crescent Felt Mattress Factory.
“Gentlemen:
“We confirm sale to you today of 100 bales linters like sample at' 2 1-8 cents per pound, your factory. Shipment immediate from interior. Terms cash upon delivery.
“Yours very truly,
“N. F. KLUMP AND CO.
“By J. S. K.
“Accepted.”

That defendant failed to deliver said linters to plaintiff notwithstanding demand; that on July 24, 1922, plaintiff purchased similar linters at the price of 4 y2 cents a pound; that the weight of the linters was 45,876 pounds; that the price of linters agreed upon in the above contract of August 29th would have been $974.86; that plaintiff paid on July 24, $2064.42 or an increase of $1,089.56 for which defendant is liable to it.

On an exception of no cause of action plaintiff amended its petition and' alleged that on various occasions between August 29, 1921, and July 24, 1922,' at the request of defendant, it extended the time for the delivery of the linters.

The defendant admitted signing the agreement of sale, but denied all the other allegations. He further alleged that in execution of the contract he shipped from Lafayette on September 1 and 6, 1921, 100' bales' of linters to plaintiff which it refused to' accept “because said bales were condemned by tbe United States Government or state officers as infected with boll weevil, or as coming from some section infected with boll weevil or other infection, concerning which restriction neither the plaintiff nor the defendant' knew or contemplated at the time of the making of the contract herein”; that it was the duty of the plaintiff to have gone at once upon the market and purchased linters; that .defendant always denied liability.

There was judgment for defendant and plaintiff has appealed.

The evidence makes it absolutely certain that the defendant delivered to the plaintiff’s factory a car load of linters, but that before it was unloaded the defendant, under instructions from government officials phoned the plaintiff to return the linters because they came from the boll weevil-infected parish of Lafayette.

The defendant again tendered to the plaintiff the same boll weevil linters but never offered to deliver any other linters or any lot other than that at first attempted to be delivered.

We shall not try to decide whether a tender of linters coming from a boll weevil condemned territory could constitute a legal tender. H. Stephen Kohl, cotton linters dealer, says that it could not be done for use in New Orleans.

But we are of the opinion that plaintiff cannot recover the amount claimed for the reason that it is based upon a market too far distant from the date of default. The contract of sale was dated August 29, 1921, for immediate shipment. The defendant failed in making delivery, and refused to make any other on September 6, 1921. The plaintiff bought linters on July 24, 1922, and from the price they paid on that date they would fix the measure of their Íqss. We think the plaintiff should have taken steps within a, reasonable time after defendant’s , default to purchase other linters, and from those purchases based their loss. The more so that from September 6, 1921, the plaintiff continued buying linters to carry on their business, and that the record does not inform us what they paid for them.

The defendant was entitled to the benefit of any price below that of July 24, 1922, if any.

The measure of damages for breach of a contract of sale of goods is the difference between the contract price and the market price at the date of the breach. C. C. 1934; Hofner Mfg. Co. vs. Lieber Lbr. & Shingle Co., 127 La. 349, 53 South. 646; Robinson Lbr. Co. vs. W. O. and S. G. Burton, 128 La. 120, 54 South. 582; State ex rel. Bourg vs. Marrero, 132 La. 109, 61 South. 136; Bonsor & Co. vs. Simon Rice Milling Company, 151 La. 1094, 92 South. 711.

In Bonsor vs. Simon Rice, 151 La. 1094, 92 South. 711, the Supreme Court said on p. 1099;

“Both justice and equity forbid that the quantum of damages due by defendants should be based upon the prices prevailing in a distant market, and at a time subsequent to that at Which delivery should have been made under the contract.”

And in the same case on p. 1100:

“It has uniformly been held by the court that damages for the inexecution of a contract of this kind, in the absence of bad .faith, are those which were in the contemplation of the parties whdn the contract was made, and that such damages represent the difference between the contract price of the thing sold and the . market price at the time and place at which it was to have been delivered.”

The plaintiffs do not testify that the defendant ever asked for time t'o execute his contract or that time was' granted to him. The defendant “absolutely denied all such assertions”.

But we think the judgment should have been one of non-suit.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s demand as in case of non-suit; the plaintiff to pay the costs of the district court and the defendant to pay the costs of appeal.

Judgment reversed; plaintiff's demand dismissed as in case of non-suit.


text:
    No. -
    First Circuit
    SAULS v. BRACY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Agriculture—Par. 12, 23.
    Act 66 of 1874 does not affect the privileges provided by Article 3217 of the Civil Code to the furnisher of supplies for crops, nor does it make it necessary for those privileges to be recorded to have effect.
    Appeal from the Twenty-first Judicial District, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by M. N. Sauls against M. L. Bracy. Onville Lumber Co., intervenor.
    There was judgment for intervenor and plaintiff appealed.
    Judgment affirmed.
    M. J. Allen, of Amite, attorney for plaintiff, appellant..
    Reid & Blache, of Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

A furnisher of supplies intervened in a seizure, claiming a privilege on the crop seized, which outranked that of the seizing creditor., The seizing creditor denied that intervenor ha.d furnished necessary supplies to make the crop. That if any were furnished they were paid for. That intervenor had no privilege under the law because it was not recorded. That the privilege of a “furnisher of supplies” must be recorded; otherwise there is no privilege.

Prom a judgment in favor of intervenor the plaintiff appeals.

M. N. Sauls, a judgment creditor of M. L. Bracy, seized Bracy’s share of a crop in the execution of a judgment against him. The crop was being gathered at the time. Onville Lumber Co., Inc., filed a third opposition and intervention, claiming to be a creditor of Bracy’s “for necessary supplies” advanced him to enable him to make the crop and that a privilege existed on the crop in its favor, to the extent of its advances, which entitled intervenor to have the proceeds of the crop by preference over the seizing creditor. The evidence shows that intervenor did make advances to Bracy to enable him to make the crop as alleged in its petition, but the trial court found that the privilege claimed by intervenor existed only to the extent of $101.25, and his finding is not questioned in that respect. The evidence shows that Bracy was an employee of Onville Lumber Co., Inc., working in its store as clerk and bookkeeper, appears to have been the practical manager of the store. • He charged himself with the goods advanced, made out the account sued on against himself, etc.The plaintiff thought the defendant and the intervenor was about one and the same party and there was' ground' for .suspicion, but the evidence satisfies us, as it did the District Court, that intervenor is justly a creditor of the defendant as alleged in its 'petition, and that it has not been paid. Plaintiff claims' that intervenor has no privilege as “furnisher of supplies” because its privilege was never recorded. The privilege of the furnisher of necessary supplies, etc., is created by the Civil Code Art. 3217, No. 1. This article starts out making the crop movable on which advances of the kind provided for by the article have been made. The article provides that:

“The privilege hereinabove granted * * * to the furnisher of supplies and the party advancing money necessary to carry on any farm * * * shall not be divested by any prior seizure and sale of the land while the crop is on it.”

Privileges exist on movables without registry until the law provides otherwise. Constitution, Art. 19, Sec. 19. There is no law that requires privileges of the kind provided for by the Civil Code, Art. 3217, to be recorded. The Act 66 of 1874 is independent legislation which requires registration when the provisions of that act are invoked. It does not make it necessary for the “furnisher of necessary supplies, etc.,” under the Civil Code, Article 3217, to have the privilege recorded which this article creates. See Flower & King vs. Skipwith, 45 La. Ann. 895, 13 South. 152; Hewitt vs. Williams, 47 La. Ann. 742, 17 South. 269; Weill vs. Kent, 52 La. Ann. 2139, 28 South. 295; Weill vs. Kent, 107 La. 322, 31 South. 761; National Bank of Commerce vs. Sullivan, 117 La. 163, 41 South. 480; Purity Feed Mills Co. vs. Moore, 152 La. 393, 93 South. 196.

The judgment appealed from is correct. Judgment affirmed, plaintiff and appellant to pay the cost of appeal. The cost in the lower court to be paid as directed in the lower court.