author: McGREGOR, J. PALMER, J.

text:
    No. 3869
    Second Circuit
    AGURS v. PUTTER
    (November 18, 1931. Opinion and Decree.)
    (April 5, 1932. Opinion and Decree on Rehearing. )

      Arthur A. LeRosen, of Shreveport, attorney for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   McGREGOR, J.

On or prior to November 9, 1897, Allec Putter, the defendant herein, borrowed from the plaintiff, W. C. Agurs, the sum of $30. To secure the payment of this sum Allec Putter executed an act of sale wherein he conveyed to the plaintiff, W. O. Agurs, lot 42 of ten-acre lot 14- of the city of Shreveport, and the consideration was stated to be $30 cash in hand paid, the receipt of which was acknowledged. Written in the deed was the following special clause:

“It is agreed that the said Putter shall have the right to redeem said property at any time within three months from date by paying to said Agurs in cash the sum of $30.00.”

Putter remained in possession of the property and it is admitted that the object of the so-called act of sale was to secure the payment of the money loaned. The sum loaned was not sufficient to have been considered a serious consideration for the property.

Fifteen years later, on January .6, 1912, while Putter was still in possession of the property and without his knowledge or consent, Agurs conveyed it to the Douglas Island Land & Improvement Company, Ltd., a corporation of which he was the principal stockholder,- manager and president. The purported consideration was $300 cash, but as a matter of fact nothing was paid by the company.

Then ten years still later, on May 6, 1922', W. C. Agurs, acting in his capacity as president of the Douglas Island Land & Improvement Company, Ltd., reconveyed the property to Allec Putter. In the act of sale, which was in the form of a credit deed retaining a vendor’s lien and special mortgage, the purported consideration, was stated to he $500, with $50 ofl this paid in cash at the time. A note of even date with the sale was written up for $450, due one year after date, on May 6, 1923, with Allec Putter’s name signed on it both as maker and endorser in blank. The act of sale and mortgage also purports to have been signed by Allec Putter as vendee and mortgagor. In every case Putter’s name was written by W. C. Agurs and purports to have been signed by “his mark.” On the back of this note two alleged credits are made in the handwriting of W. C. Agurs, namely: July 18, 1923, $50; September 22, 1925, $41. On May 5, 1928, this suit was filed, and on May 8, 1928, it was personally served on Putter. It is a suit to foreclose a mortgage via ordinaria, based on the above named $450 note. In his original petition the plaintiff, W. C. Agurs, alleges that he is owner of the note sued on “for valuable consideration before maturity.” (Bold type ours.) In an amendment to his original petition he alleges that:

“Plaintiff shows that the payments credited on the said note herein sued on, were made to plaintiff by said Allec Putter, defendant herein; plaintiff shows that at said time, plaintiff was acting as agent for Mrs. M. D. Agurs, since deceased, then holder and owner of the said notes for value in due course.” (Bold type ours.)

The prayer of plaintiff is for judgment on the balance alleged to be due on the note said to be $439.40, with 8 per cent interest from July 26, 1924, and 10 per cent attorney’s fees and for recognition of the vendor’s lien and privilege and special mortgage on the property described above.

Before answering plaintiff’s original and amended petition the defendant filed a plea of five years’ prescription, which was referred to and tried with the merits of the case. In his answer he denied the validity and genuineness of the note and on trial denied all knowledge of it. He alleged the origin of his title to the property in. question and explained how the record title was conveyed from him to the plaintiff on November 9, 1897, stating that on that date he was indebted to the plaintiff in the sum of $30, and that he executed, an instrument which he thought was for the purpose of securing the payment of said amount; that he always remained in possession of the property; and later learned that the instrument was in the form of a sale with the. right of redemption reserved. He alleged further that the purported transfer of the property by the plaintiff to the Douglas Island Land & Improvement Company, Ltd., was invalid for the reason that the plaintiff had no right or interest in the said property, and that the said company, of which the plaintiff was the president, owner and manager, acquired no rights in the said property, and that the alleged transfer was simply a transaction by the plaintiff with himself and that no consideration Was passed or title conveyed and that, therefore, the entire transaction was fraudulent. With reference to the transfer to him by the Douglas Island Land & Improvement Company, Ltd., in connection with which the note sued on was identified, he alleges that he cannot read or write, and that he did not intend to execute a vendor’s lien or mortgage on his property; that he was never indebted to the plaintiff in any sum except the original $30, to secure which he gave a deed to his property, which amount had long since been paid.

On trial in the lower court the defendant’s plea of prescription was overruled, and judgment was rendered in favor of the plaintiff as prayed for. From that judgment the defendant has appealed, suspensively.

ON THE PLEA OF FIVE YEARS’ PRESCRIPTION

The due date of the note sued on is May 6, 1923. This suit was filed and citation issued on May 5, 1928, and the defendant was personally served on May 8, 1928. Counsel for plaintiff, in opposing the allowance of this plea of prescription, contends that since the suit was filed on May 5, 1928, five years’ prescription had not accrued from the alleged maturity of the note, May 6, 1923; that it is the date and act of filing the suit that interrupts prescription and not the date and act of service of the citation by the sheriff on the defendant. In his brief he says.

“While the general understanding is that citations must be served before an interruption of prescription occurs, as far as we have been able to find there is no positive holding to that effect by the appellate courts.”

The answer to that statement is found in article 3518 of the Revised Civil Code, which reads as follows:

“A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the ownership or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdictiqn or not.” Art. 3518 (3484) Revised Civil Code.

Under the plain letter of this provision of the law and of the decisions of our courts interpreting it the irresistible conclusion is that the simple filing of a suit and the issuance of a citation and its delivery to the proper officer will not constitute a “legal interruption” of prescription. This does not take place until the citation has been “served.” Counsel is confused by a line of decisions to the effect that even though this citation is defective in some ways, it still may be sufficient to interrupt prescription. But there must always' be a service, and if the service is after the expiration of the prescriptive period it is ineffective even though the suit may have been filed and the citation issued and delivered to the proper officer before its expiration. So that, in this case unless prescription was interrupted in some other way than by the filing of the suit, the plea will have to be sustained.

But plaintiff alleges that prescription was interrupted by two payments shown to have been made in the sums of $50 and $41 on July 18, 1923, and September 22, 1925, respectively. On the trial of the case defendant denies all knowledge of the note or its existence. He positively denies having made the payment of $50 at the time that the alleged note is said to have been given. He positively denies having made either of the payments referred to. The plaintiff, of course, is just as positive that the payments were made. Unless there is some corroboration of plaintiff’s testimony it must be held that he has not established his position with that degree of legal certainty that is required by law. To corroborate his statement with reference to these two payments, two former bookkeepers of the plaintiff were produced as witnesses. The most that they could say was that they remembered that at some time during the period of their employment by the plaintiff the defendant came to the plaintiff’s office and had some kind of financial transactions with him. This testimony is too vague and indefinite. Besides, plaintiff’s own testimony is rather in conflict with the pleadings, and one of the notations on the back of the note. In plaintiff’s petition he alleges that at the time of the two payments shown on the note, it was the property of Mrs. M. D. Agurs, whereas in his direct examination by his own counsel he states that the note was his property at the time the alleged payments were made. He also stated that the second payment was made him personally, hut on the back of the note, in the plaintiff’s handwriting, it is stated that the second payment was made to Mrs. M. D. Agurs. In view of this state of the testimony we cannot hold that the plaintiff has established the two payments alleged to have been made by the defendant on the note, and therefore, the plea of prescription filed by the defendant is sustained.

In view of the fact that we have sustained the plea of prescription filed by the defendant, it becomes unnecessary to consider the case further on its merits.

For the reasons assigned the judgment appealed from is hereby annulled, reversed and set aside, and the demand of the plaintiff dismissed at his cost.

ON REHEARING

PALMER, J.

Alleging himself the holder and owner of the notes sued on, plaintiff brings this action for the recovery of a balance of $439.40, claimed to be due thereon. In connection with the suit, he asks for recognition and enforcement of a mortgage and vendor’s lien against certain property given and retained to secure the payment of said note.

In substance, he alleged that on May 6, 1922, defendant purchased the property in question from the Douglas Island Land & Improvement Company for a consideration of $500, paying $50 cash and executing his promissory note for $450, due one year after date, payable to himself and by him endorsed in blank, covering the balance of the purchase price, the vendor retaining a special mortgage and vendor’s lien on the property conveyed to secure the payment of the said note; and that defendant, as shown by the credits on the reverse of the said note, made payments thereon as follows: On July 18, 1923, paid $6.40 on the principal and $43.60 on the interest; and on September 22, 1925, paid $5 on the principal and $36 as interest.

Plaintiff amended his petition, alleging that while the payments were made to him, he was acting for Mrs. M. D. Agurs, who was then the holder and owner of the note.

Defendant filed an exception of nq cause er right of action, which was overruled. He then filed a plea of prescription of five years, which was, by consent of counsel, referred to the merits.

The defendant, in effect, entered a general denial and in addition, alleged that he is the owner of the' property in controversy, but under a chain of title not including the alleged transfer from the Douglas Island Land & Improvement Company. He avers that on November 9, 1897, he borrowed $30 from plaintiff on this property and secured the loan by an instrument which he later found out was a' redemption deed, although he continued in possession of the property and that the loan was repaid on or before the year 1908.

He further alleges that plaintiff, without any interest in or title to said property, on July 6, 1912, attempted to transfer it to the Douglas Island Land & Improvement Company, a corporation of which plaintiff was president and sole manager, invested with full authority to represent the corporation, but that the transfer was without consideration and passed no title and constituted a fraud upon defendant.

He further alleged that on May 6, 1922, plaintiff, acting under the name of the said corporation, represented to defendant that he desired to reconvey the property to him, and accordingly recorded the deed from the corporation to defendant, with which the note sued on is identified; that he could not read or write and did not intend to execute a vendor’s lien and mortgage on said property or to acquire title thereto from said corporation; that all the indebtedness he ever owed plaintiff was the said $30 borrowed in 1897; that he was never indebted to said corporation, but if the instruments in which plaintiff and the said corporation figure are held to be genuine, then they were brought about by the misrepresentations qf plaintiff to defendant and therefore have no validity as transfers of property.

Defendant pleads in the alternative that, if it be held plaintiff is the holder of a mortgage upon the said property, he is the head of a family, occupying said premises with his family as a homestead and has so occupied it since he acquired it in 1892, and that the property is worth less than $2,000.

On these issues the case went to trial in the lower court, resulting in a judgment for plaintiff, as prayed for. From that judgment, defendant has appealed.

After the judgment of the district court was signed, the defendant died. The administrator of his succession was substituted as defendant.

PLEA OF PRESCRIPTION

The defendant has pleaded the prescription of five years as a bar to plaintiff’s demands. That plea is based upon the following facts revealed by the record: The note is dated May 6, 1922, and matured one year after date, or on May 6, 1923. The service in this case Was made on May 8, 1928. It is apparent, therefore, that more than five years elapsed between the due date of the note and the service in this suit, so prescription has run, unless there were some intervening causes that prevented it.

Plaintiff resists the plea on the following grounds:

First, that the due date of the note (May 6, 1923) fell on Sunday, which extended the date of payment to the following day (May 7, 1923), and that prescription did not begin to run until the cause of action accrued, which was May 8th, contending that the five years did not expire until May 8, 1928, the date on which the citation was served; and second, that prescription was interrupted by two payments made on the note by defendant, one on July 18, 1923, and another on September 22, 1925.

There was no testimony introduced to show that May .6, 1923, was Sunday. Counsel meets that situation with the argument that the court must take judicial notice of the fact that a particular date is a dies non.

It is a fact that when a promissory note falls. due upon Sunday, or a holiday, the next succeeding business day is the date of maturity (Act No. 64, section 85, of the Legislature of Louisiana for the year 1904). It is clear, therefore, that a cause of action on a promissory note does not accrue, when the note falls due on Sunday, or a holiday, until after the “next succeeding business day,” and hence prescription does not begin to run until after the expiration of the extended maturity date. Kimball & Singer v. Fuller & Miller, 13 La. Ann. 602; Wardwell v. Sterne, 22 La. Ann. 28; Breaux v. Broussard, 116 La. 215, 40 So. 639. So in this case, if May 6, 1923, the stipulated due date, fell on Sunday, the note did not become payable until the following day (May 7th), and did not then, unless that day was a “business day.” If May 7th became the due date, then the cause of action did not accrue until after the due date expired, or until May 8th.

It is a rule of law that the court will take official notice qf the fact that a particular day is a dies non. Huie v. Breazeale, 19 La. Ann. 457; Whaley v. Houston, 12 La. Ann. 585. But this rule will not be extended so as to cover an unreasonable time. It is easy for the court to consult the calendar when a date is involved touching upon what may be classed as current matters to determine the day of a given date, but in this case, it has been almost nine years since tiie note sued on became due. It would entail an unreasonable hardship upon the court to have to determine if May 6, 1923, fell on Sunday. This rule will not be extended to cover such a long period of time. In cases involving a holiday reaching back over a period of years, a party to a suit whose rights are affected thereby, should introduce evidence to establish the fact. The court in such cases will not ex proprio motu take notice of its existence.

In this case, however, even if the facts are as claimed by plaintiff, it would avail him nothing. He says May 6, 1923, was Sunday, thus extending the due date of the note to Monday, May 7th, and that the cause of action did not accrue until May 8th. Even so, the prescriptible period began with May 8, 1923, and ended with May 7, 1928. The service was not made until May 8, 192'8, so five years had fully expired at that time.

It is clear, therefore, that the note is prescribed unless the payments as credited on the note were actually made by defendant, because even payments of interest interrupt prescription. Marcelin v. Creditors, 21 La. Ann. 423; Canal Bank, etc., v. Ascension Bank, 140 La. 465, 73 So. 269.

As will be readily observed, a decision of that point turns entirely upon a question of facts. The burden of that undertaking rests upon plaintiff.

As a review of the evidence will show, plaintiff testified that the payments 'were truly made as shown by the credits on the back of the note. He is corroborated by C. F. Rushing, who worked for plaintiff for three or four years, beginning in 1921. He said during that time he saw defendant in the office of plaintiff make payments to plaintiff. Robert McElroy, who also worked for plaintiff from 1924 to 1926, saw defendant during that time come to the office of plaintiff on several occasions, to transact some kind of business.

The defendant not only denied the payments credited on the note, but also denied the execution of the note itself, notwithstanding the note was paraphed by the notary to identify it With the mortgage. In considering this plea, the lower court evidently gave due consideration to the facts on which the interruption hinges, and overruled the plea. We find no error in that ruling.

THE MERITS

The record shows that on November 9, 1897, Allec Putter conveyed to W. C. Agurs lot 42 of ten-acre lot 14, with improvements, situated in the city of Shreveport, for a consideration of $30. The deed contains this stipulation: “It is agreed that said Putter shall have the right to redeem said property at any time within three months from date by paying to the said Agurs in cash the sum of $30. Agurs never reconveyed the property to Putter nor did h,e ever issue any writing evidencing the fact that Putter, within the time specified or within any other period of time, repaid the $30. Agurs, however, did not take possession of the property, so, as between plaintiff and defendant, the contract was deprived of the essential characteristic of a redeemable sale. Collins v. Pellerin, 5 La. Ann. 99. However, there was no dispute over this question, because Agurs for about fifteen years after the time limit for redeeming the property expired, continued to treat the instrument as one of security only.

On January 6, 1912, Agurs, for a stated ■consideration of $300 cash, conveyed by warranty deed this property to Douglas Island Land & Improvement Company, Ltd. The title thus stood in the name of said corporation until May 6, 1922, on which date it executed unto the defendant a warranty deed conveying this property for a stated consideration of $500, of which $50 is stated to have been paid in cash, and the balance of $450 is said to be represented by the promissory note of defendant, due cne year after date and which is the note sued on in this case.

Some of the facts incidental to, connected with or growing out of the record transactions referred to above, are in serious dispute between plaintiff and defendant. For instance, the defendant claims the only money he ever borrowed or received from plaintiff was the $30 he borrowed on November 9, 1897. He also claims that during the intervening years he paid all taxes assessed against said property. On the other hand, plaintiff claims to have advanced cash to defendant during the years 1901 to 1912, inclusive, amounting to about $237, which included the amount of taxes he says he paid for defendant on this property during that period, and that during the same time defendant made payments to him on these advances, aggregating $68.

On the question of the genuineness of the deed from the Douglas Island Land & Improvement Company to defendant, conveying this property, and the note alleged to have been executed by defendant, covering the larger portion of the purchase price, defendant denies the transfer and denies the execution of the note. On the other hand, in addition to the fact that the deed containing the special mortgage and vendor’s lien, including the note identified therewith, is a notarial act, plaintiff testified that defendant sought to repurchase the property, and that for the consideration and upon the terms stated in the act of conveyance, the said corporation transferred the property to him.

On the question of the genuineness of the payments credited on the note, defendant denied that he made such payments. On the other hand, plaintiff testified that the payments were made by defendant at the time and in the amounts as shown on the reverse of the note, and he was corroborated in his testimony to some extent by two employees who formerly worked for him. One of them, C. F. Rushing, testified that he was employed by plaintiff in 1921, and worked for him for three or four years and that during that time, he saw defendant in the office and saw him make payments to plaintiff. The other employee, McElroy, testified that he worked for plaintiff from 1924 to 1926, and that during that time he saw the defendant on several occasions in the office of plaintiff.

It might be reasoned with some force that the deed from defendant to plaintiff on November 9, 1897, containing the redemption clause, was only an act of security and that the amount required for the redemption was timely paid, or if nqt paid, that the act as a mortgage, not having been reinscribed, prescribed long before plaintiff asserted any ownership of the property. But such reasoning would avail defendant nothing if indeed he purchased the property from the Douglas Island Land & Improvement Company on May .6, 1922, on the terms and for the consideration as written in that act of conveyance. If he dealt with the said corporation as owner of the property and sought and received a title from it, and executed his note as evidence of the credit portion of the purchase price, he is estopped to dispute his author’s title or the genuineness of the title he thus sought and accepted, as well as the note he gave to represent the balance due on the purchase price. A. plea of estoppel, based upon this ground, was filed by plaintiff after the answer was filed.

The deed from the Douglas Island Land & Improvement Company to defendant is a notarial act, regular in form, passed before J. E. Croom, deputy clerk of court and ex-officio notary public, in the presence of two attesting witnesses, and apparently signed by the vendor and the vendee. The law as to the force and effect of authentic acts is contained in Civil Code, article 2236, as follows:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

Therefore, the presumption is that this deed is genuine and it must be so accepted, “unless it be declared and proved a forgery.” Fontini v. Land Company, 167 La. 138, 118 So. 865.

Defendant does not allege that the deed is a forgery. His allegations are in substance that plaintiff, acting in' the name of Douglas Island Land & Improvement Company, stated that he desired to place the property back in his name and accordingly recorded the deed in question, and that defendant did not pay the cash consideration recited in the deed; that he cannot read or write and that he did not intend to acquire the property from the said corporation nor to give a mortgage or vendor’s lien thereon.

It will readily be seen that neither forgery nor fraud is alleged by the defendant in regard to this transaction. Under a liberal construction placed upon his pleadings, it may be held that the defendant has alleged that he signed the deed in question through error and, therefore, had the right to prove by parol evidence the error alleged. But when we come to cons'ider his testimony, we find that he does not even attempt to prove any error. He made no claim in his testimony that plaintiff or the Douglas Island Land & Improvement Company deeded or was due to deed him this property, and that in discharging that obligation, they, through error, specitied a cash payment, which he did not make, and a note for the balance of the consideration, which he did not execute. If he had given such testimony, he possibly would have been within his pleadings, but his evidence tends to prove forgery and not error. As already stated, he did not allege forgery, however, since no objection was made to his testimony on the ground of irrelevancy, the pleadings may be considered as amended so as to admit proof of, forgery.

The question to be decided here is: The deed under consideration being an authentic act, and hence full proof of the agreement contained in it, has defendant destroyed its force and effect by the parol evidence he adduced, since he depends entirely upon such character of proof?

From a careful study of the defendant’s testimony, we fail to find any dependable proof that the deed and note in question were forgeries, or even that they contained stipulations fraudulently or erroneously inserted. Counsel for plaintiff repeatedly tried to get him to say whether or not he came before a deputy clerk of court and signed the act of sale now under consideration, hut he invariably refused to answer the question, telling counsel to ask his counsel whom he had employed to do his talking. He simply refused to make a statement on that point. It will he borne in mind that by agreement defendant’s testimony was taken out of court, so plaintiff was without the aid of the court to force him to answer the questions. He did finally deny that he signed the note sued on.

Defendant’s testimony is not of that high character necessary to overcome the legal presumption in favor of the verity of this authentic act and note. He offered no other proof to corroborate him. Not only is the authentic act presumed to be full proof of what it contains, hut plaintiff testified that defendant sought to repurchase this property, and that the said act of conveyance and the said note are genuine in all particulars.

Defendant carried the burden of proving the grounds of his attack and failed to discharge it.

The judgment of the lower court is affirmed, defendant, appellant, to pay all costs of appeal.

The right to apply for a rehearing is reserved to defendant, inasmuch as the judgment of this court on a former hearing in which the plea of prescription was sustained did not pass upon the merits of the case.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,988
    Orleans
    SUCCESSION OF PRISCILLA WILSON, Widow of William Lewis, v. DAVID LEWIS
    (March 21, 1932. Opinion and Decree.)

      Andrew H. Thalheim, of Gretna, attorney for plaintiff, appellant.
    Henry C. Huckabee, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

The Gretna Trust & Savings Bank, as dative testamentary executor of the succession of Priscilla Lewis, brought this action to recover from David Lewis the sum of $505.58, alleged to have been illegally withdrawn from the deceased’s banking account after her death. There is also a claim that defendant owes the estate rent for occupying a house belonging to the succession.

Article 2 of the petition alleges:

“That after the death of Priscilla Lewis, which occurred on August 4th, 1929, David Lewis, who had custody of a bank book issued by the Gretna Trust and Savings Bank of Gretna, La. in favor of Priscilla Lewis withdrew from said book a total of Five Hundred five and 58/100 ($505.58) Dollars, on the following dates, August 5th, 1929 and September 16th, 1929.”

Defendant denied liability, but admitted the allegations of article 2 of the petition and then averred that he had a right to withdraw the funds because he had loaned his mother various sums of money between January 1, 1926, and December 81, 1928, amounting to $936, and that his mother had agreed to place the necessary funds in the Gretna Trust & Savings Bank for the purpose of liquidating the indebtedness; that he took the money because his mother had said, before she died, that the funds belonged to him. He denied that he had occupied the premises in question and that he owed any rent.

There was judgment dismissing the suit and the plaintiff has appealed.

The record shows that Priscilla Lewis died on August 4, 1929, leaving three sons, including the defendant, and a last will and testament in nuncupative form by public act in which she named her son, David Lewis, as testamentary executor, with seizin and without bond. He qualified as executor, but was removed by the court upon a rule taken by George and -Willie Lewis, his brothers, in which it was shown that he had failed to take an inventory, as ordered by the court, and had failed to place in the bank certain funds which he had collected belonging to the estate. Willie Lewis was then appointed as dative executor and he,' likewise, was later discharged by the court for having failed to perform his duties as executor. The court then appointed the Gretna Trust & Savings Bank as dative testamentary executor.

David Lewis in his testimony first stated that the account from which he withdrew the funds was in his name, but, while still on direct examination, admitted twice that the account was in his mother’s name. He and Willie Lewis both testified that David had advanced his mother certain money, but, while David averred in his answer it amounted to $936, in his testimony he stated it was something in excess of $600.

We experience no difficulty in reaching the conclusion that the money was deposited in the bank to the credit of the mother and was withdrawn after her death. Under our law the executor is charged with the duty of collecting all of the assets of the succession. From David Lewis’ testimony and his admissions in his answer, it appears that he was nothing more than a creditor of his mother’s estate, and a creditor cannot satisfy his own claim by taking the assets of the succession. Whatever claim David Lewis has against the estate of his mother must be asserted at the time the account is filed, where all claims will be listed according to their respective ranking, preference and priority.

We conclude that the withdrawal of the funds was illegal and that the Gretna Trust & Savings Bank, as dative testamentary executor, has the right to possession of the funds, and whatever rights David Lewis has as a creditor may be asserted against the succession and proved in the regular formal way when the account is filed.

There was also a claim for rent by the executor against David Lewis, but we do not feel that the executor successfully proved that item.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the Gretna Trust & Savings Bank, dative testamentary executor of the succession of Priscilla Lewis, and against the defendant, David Lewis, in the sum of $505.58, with legal interest from October 20, 1930, until paid, defendant to pay all costs of court.


author: JANVIER, J.

text:
    No. 14,012
    Orleans
    AYO v. HOLZENTHAL
    (April 18, 1932. Opinion and Decree.)

      Edward S. Spiro, of New Orleans, attorney for plaintiff, appellee.
    William A. Green and L. Walter Cock-field, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

On or about November 22, 1930, while plaintiff, a tenant of defendant, was engaged in scrubbing one of the floors in the rented premises, a piece-of plaster fell from the ceiling, striking her on the back. She was rendered unconscious and was taken to the Charity Hospital. She refused to remain at the hospital and returned home that day. Two days later, finding that she was still suffering pain, she returned to the hospital and remained there until December 12th, at which time she was discharged.

In her petition plaintiff claims that she sustained not only a lumbo sacral strain, but also that a miscarriage resulted. She says that at the time she had been pregnant for a period of approximately two months.

For such injuries as plaintiff actually sustained defendant is liable.

In Plescia v. Le Roy, 148 La. 316, 86 So. 824, the facts were as follows:

“* * * The wi£e of defendant’s tenant * * * was injured by plaster falling from the ceiling of the premises so occupied.”

The court, in holding the defendant landlord liable, said:

“The owner of a building is liable in damages for injuries caused to his tenant by failure to make the necessary repairs, due to the decay of his building, and of which he has knowledge. C. C. arts. 2693, 2695, 2715, 2716, 2717; C. C. art. 2322; Ciaccio v. Carbajal, 145 La. 869, 83 So. 73; Badie v. Columbia Brewing Co., 142 La. 853, 77 So. 768; Allain v. Frigola, 140 La. 982, 74 So. 404; Wise v. Lavigne, 138 La. 218, 70 So. 103; Schoppel v. Daly, 112 La. 201, 36 So. 322.”

We are concerned only with determining the extent of those injuries.

The district court rendered judgment for $750 and, as we are convinced that the injuries, except the alleged miscarriage, were of a comparatively minor nature, we feel that our brother below must have come to the conclusion that a miscarriage actually was sustained. Whether he was correct in this is practically the only question now presented.

As proof of this particular item of damage, plaintiff introduced in evidence the records of the Charity Hospital of New Orleans, in which institution she had been confined for a period slightly in excess of two weeks, but, in addition to these records of the hospital, she offered no evidence except the testimony of one physician, who examined her some time after -she returned home and who stated that, in his opinion, which was based on the records of the ¡ hospital, the miscarriage actually had occurred. Another physician, testifying on behalf of defendant, was of the contrary opinion, basing his views on the same reports.

Since the two doctors, in interpreting the reports of the Charity Hospital, came to different conclusions as to whether there had been a miscarriage, we have carefully examined those reports, and, while we feel incompetent to discuss in detail the various symptoms which seem to be indicated thereby, we have reached the conclusion, after carefully examining the various entries, that the reports nqt only do not indicate a miscarriage, but, rather, prove the contrary; for, although it is true that in several places in the reports it is stated that a miscarriage was apparently threatened, nowhere do we find any mention of any such occurrence, and, in view of the minuteness of detail with which the reports were prepared, we cannot believe that, had such an event taken place, no mention would have been made thereof on the said reports.

In the argument before us there was raised the question of the admissibility in evidence of the Charity Hospital reports in the absence of any physician to identify them, or to testify as to the correctness of the entries made therein. It appears that these records were offered in evidence by plaintiff herself and no objection was made thereto. While it is true that Charity Hospital records constitute hearsay evidence, we do not feel that they should be excluded by the appellate court when they have been admitted without objection in the court below, particularly where they are detrimental to the interests of the party who introduced them.

In Dolan v. Metropolitan Life Insurance Co., 11 La. App. 276, 123 So. 379, we reached the conclusion that similar records are nothing more than hearsay evidence and should be excluded, if objected to. Here, as we have said, no objection was made. In Abelleira v. Johnson Iron Works Co., 1La. App. 310, 137 So. 908, we held that such records, if not objected to, are admissible in evidence. In Wigmore on Evidence, Vol. 1, page 173, sec. 18, we find that:

“The initiative in excluding improper evidence is left entirely to the opponent — so far at least as concerns his right to appeal on that ground to another tribunal. The judge may of his own motion deal with offered evidence; but for all subsequent purposes it must appear that the opponent invoked some rule of evidence. A rule of evidence not invoked is waived.”

In Diaz v. United States, 223 U. S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500, Ann. Cas. 1913C, 1138, the Supreme Court of the United States considered an objection made in the appellate court to evidence which, in the trial court, had been offered by the party who later objected to its admissibility. The objection was made on the ground that it constituted hearsay. The court, in discussing such evidence, said:

“But it was not admitted without his consent, but at his request, for it was he who offered it in evidence. So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objection, it is to be considered and given its natural probative effect as if it were in law admissible. Damon v. Carrol, 163 Mass. 404, 408, 40 N. E. 185; Sherwood v. Sissa, 5 Nev. 349, 355; United States v. McCoy, 193 U. S. 593, 598, 24 S. Ct. 528, 48 L. Ed. 805, 807; Schlemmer v. Buffalo, etc., Ry. Co., 205 U. S. 1, 9, 27 S. Ct. 407, 51 L. Ed. 681, 685; Neal v. Delaware, 103 U. S. 370, 396, 26 L. Ed. 567, 573; Foster v. United States, 101 C. C. A. 405, 178 F. 165, 176.”

If, then, the evidence was admitted without objection, and, furthermore, was offered by the party against whose interests it now appears to be, although it may have been hearsay, nevertheless it is in the record and must be considered.

The physician who testified for the defendant was very convincing in his testimony to the effect that, as a matter of fact, no actual pregnancy had been shown to exist. He gave it as his opinion that the passing of one menstrual period did not conclusively show pregnancy, particuIarly where, as in the instant case, the patient was a victim of a chronic condition described here as “P. I. D., or pelvic inflammatory disease,” which condition sometimes causes the passing of periods and later the discharge of blood, which would somewhat resemble an abortion, or miscarriage, in the earlier stages of pregnancy.

The testimony of plaintiff herself on this question is not at all convincing. The allegations of her petition as to the day on which the abortion had taken place were shown to have been entirely in error and, after an amendment in which she alleged that December 12, 1930, was the correct date, the records of the hospital were examined, and it appeared from them that on that very day she had been discharged. Her contention was that the abortion had taken place in the hospital, and it cannot he believed that if, for nearly two weeks, she had remained in the hospital primarily because of a threatened abortion, she would have been discharged from the hospital on the same day on which she alleges the abortion finally took place.

In view of the fact that we have reached the conclusion that the miscarriage, which forms the gravamen of plaintiff’s complaint, was not actually suffered, we feel that the amount awarded below must be'reduced.

While it is true that in no one damage suit can a standard of payment for injuries be set which will be applicable in any other, nevertheless we must, to some extent, he guided by what has been awarded in other cases for similar injuries and, bearing this in mind, we have examined with interest the awards made in two cases cited by counsel for defendant. In Favalora v. N. O. Ry. & Light Co., 143 La. 572, 78 So. 944, an award of $200 was increased by the Supreme Court to $300. The court said:

“The evidence shows that plaintiff was in a very nervous condition, and that symp- . toms of abortion manifested themselves. But the proof does not convince us that there actually was an abortion, and it would serve no useful purpose to detail in this opinion the facts bearing upon that issue. Suffice it to say that our appreciation of the evidence is that plaintiff did suffer a nervous shock, underwent some physical discomfort, but that the abortion upon which she largely bases her claim for damages is not established by a preponderance of evidence.”

In Plescia v. Le Roy, supra, in which the injuries, except for the threatened abortion, were somewhat similar to those which we find here, the Supreme Court affirmed an award of $350. In that case we find that:

“Plaintiff was down on her knees scrubbing the floor, and a large section of the plastering fell and struck her on the middle and lower portion of her back, bruising and lacerating the flesh to the extent that she had to be carried to her bed, where she remained about three weeks. Her hack had to be strapped with adhesive plaster, and ishe was under the care of a physician for some two months. She paid $10.55 for drugs and $50 doctor’s bill on account of her injuries.”

There is no doubt that plaintiff suffered considerable pain; that she was greatly inconvenienced and required to spend, as we have said, more than two weeks in the hospital. Nevertheless, we believe that $350 would be adequate compensation for such losses and physical injuries as have been caused her, and we will therefore reduce the amount of the judgment to that figure.

It is therefore ordered, adjudged, and decreed that the judgment appealed from he, and it is, amended by reducing the amount thereof to $350, and, as thus amended, affirmed; defendant to pay all costs.


text:
    No. 14,098
    Orleans
    WINBERRY v. THIBERGE
    (May 2, 1932. Opinion, and Decree.)
    Felix W. Gaudin, Milton R. DeReyna and Edna K. Gaudet, of New Orleans, attorneys for plaintiff, appellee.
    Harry M. Mayo, Jr., of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Winberry seeks to recover for personal injuries sustained by him and for the damage caused to his Ford automobile when it was in collision at the corner of Poydras and Dryades streets with a Pontiac car owned and driven by Mrs. Thiberge.

He alleges that he was driving up Dryades street and that, on reaching the lower side of Poydras street, he stopped momentarily because the traffic signal light facing him showed red, which fact, under the traffic ordinance, C. C. S. 7490, indicated that vehicles, the drivers of which intended to cross the roadway ahead of him, were entitled to proceed. According to his petition and to his testimony, when the light, after changing to amber, turned to green, he applied the power to his car and proceeded to cross the intersection, but he avers that, when he had almost completed the crossing, the Pontiac car of Mrs. Thiberge crashed into the rear portion of the left side of his Ford and caused it to turn over on its side.

Mrs. Thiberge denies that the light facing her car was red as she attempted to negotiate the crossing, contending, on the contrary, that it was green and that she had proceeded several feet into the intersection when, suddenly and at high speed, Winberry’s Ford dashed in front of her when it was too late for her to stop.

In the court below judgment was rendered for Winberry in the sum of $212.95. Of this sum it is evident that $145.95 was awarded for the damage sustained by his automobile and the remainder for personal injuries, medical expenses and loss of earnings and, at this point, we deem it convenient to state that we find no error in the quantum awarded.

We cannot see that any useful purpose would be served by our entering upon a detailed discussion of the evidence. No question of law is involved and we feel that we should apply the familiar rule that where only questions of fact are involved the findings of the court, a qua, will not be disturbed unless manifestly erroneous.

Furthermore, the physical facts tend to corroborate plaintiff’s testimony. His Ford had almost crossed the street when it was struck on the rear fender.

It is entirely possible that the failure of the yellow caution light facing Mrs. Thiberge to work properly may have accounted for her error in believing that the right of way was hers. At any rate no reversal of the judgment appealed from is possible on the record as we see it.

The judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 14,132
    Orleans
    CHAPMAN v. MOORE
    (May 2, 1932. Opinion and Decree.)
    M. C. Scharff and Frank Macheca, of JSTew Orleans, attorneys for plaintiff, appellee.
    Hubert M. Ansley, ‘ of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff brings this suit against Thomas F. Moore for damages for personal injuries alleged to have re-suited from a fall through the second floor gallery of the premises No. 1601 Chippewa street, owned by the defendant Moore.

There was judgment below in plaintiff’s favor in the sum of $1,144 and defendant has appealed.

On the question of liability, the defendant seems to rely entirely upon the contention that the accident did not happen and, his argument in this regard is based largely upon the ground that there was| immediately under the hole ii^ the gallery, through which plaintiff alleges she fell, anj^ ice box upon which there rested a bowl of starch measuring about twelve inches. in diameter and that the bowl of starch was undisturbed by her fall. In other words, the defendant claims that the fall could not have happened without upsetting the starch which was directly under the aperture in the gallery. Whatever may have been the situation with respect to the starch and the ice box, the evidence in the record is overwhelmingly to the effect that plaintiff did fall in the manner which she claims. She was a sub-tenant of the defendant and occupied a room on the second floor which Was approached by means of a small gallery, through which she fell. The hole in the gallery was caused by loose planking which was dislodged by the weight of plaintiff’s body as she stepped upon it, although the planks themselves, which have been offered in evidence, seem strong enough to have supported many times plaintiff’s weight. The trouble seems to have been that they were not secured. At any rate, at least two witnesses testified to seeing the hole in the gallery and plaintiff reclining upon the brick pavement below. She was transported to the Charity Hospital in an ambulance where she re-, mained some 46 days.

We, like the trial court, are convinced that the accident happened in the manner claimed, and, since there is no other defense we find the defendant liable.

Plaintiff’s injuries consisted of a fracture of the surgical neck of the right humerus and contusions and brush burns. Her physician, testifying some eight months after the accident, stated that there was a decided impairment in the muscular function of her right arm which he estimated to be about 25 per cent of normal. He also stated that in the course of time this condition would right itself. Plaintiff’s expenses, because of the, accident, amounted to the sum of $160. She was a woman 48 years of age. It seems to us that the amount allowed by our brother below was correct.

For the reasons assigned the judgment appealed from will be affirmed.


author: TALIAFERRO, J.

text:
    No. 3650
    Second Circuit (Second Division)
    COLLIER v. BROWN ET AL.
    (May 4, 1932. Opinion and Decree.)

      Argued before STEPHENS, TALIAFERRO and CULPEPPER, JJ.
    J. W. Jones, of Natchitoches, attorney for plaintiff, appellee.
    Gunter & McClung, of Natchitoches, attorneys for defendants, appellants.
   TALIAFERRO, J.

Plaintiff instituted this suit against defendants to recover a balance due him on an open account. He alleges that the account arose in 1929, while defendants were engaged in the operation of a small sawmill, and while not aware of the nature of the agreement between the defendants with regard to the said sawmill, the goods, gas, oil, etc., charged on the account sued on, were sold at the solicitation of each of the defendants and the account has been acknowledged by them and a payment thereon made by defendant Brown.

Defendant Willard did not answer suit. Brown did. He denies any liability to plaintiff and denies that he purchased any of the goods charged on the account, and denies that he and Willard were partners in the operation of the sawmill.

The lower court gave judgment against both defendants. Brown has appealed.

There is very little dispute over the facts in the case. Plaintiff is engaged in retail mercantile business in the village of Campti, Louisiana. The defendant Willard was in possession of a portable sawmill and moved it on the lands of defendant Brown for the purpose of manufacturing Brow'n’s timber, and other timber thereabout, into ties. Brown sold his timber to Willard and purchased the output of the mill. Beyond this, Brown appears to have had no interest in the activities of Willard or of the mill. About the time the mill began operations, Brown accompanied Willard to plaintiff’s place of business and made them acquainted and informed Collier that Willard purposed to start the sawmill to running and then and there arrangements were made for Willard to open an account with plaintiff. The following testimony of plaintiff reflects his understanding of what was said and done at the time, namely:

“Mr. Brown brought Mr. Willard around and made him acquainted with me, and told me he was going to operate a little mill around there and let him have what he needed and he would see that it was paid.”

He is corroborated by the testimony of other witnesses. This evidence was objected to as being inadmissible on the ground that parol testimony could not be received to prove a promise to pay the debt of a third person. (Article 2278, Civil Code.) The objection was overruled and the testimony admitted. We think the ruling correct.

Defendants are sued as principals. There is no allegation whatever in the petition that defendant Brown stood good for the account of Willard or became surety therefor. If there had been such allegation, the objection would have been good.

Defendant Brown admits he was instrumental in inducing plaintiff to extend credit to Willard, but contends that he only stood good for purchases of gas and oil to operate the mill. The weight of the evidence makes it certain that he is in error as to restrictions being imposed by him on plaintiff’s sales to Willard. He says that the last payment of $75 made by him on the account did actually pay for the oil and gas charged thereon. However, in making prior payments for Willard, he does not appear to have given this phase of the account special attention. The merchandise purchased by Willard was first entered on small charge slips showing his name, with itemized list of articles purchased and price of each item. Thereafter, the record of the purchases was transferred to the ledger and carried into an account against Brown. He kept in touch with the account from time to time and, as Willard desired him to do so, made payments thereon, giving check or cash to Willard for that purpose. Payments thus made were charged to Willard by Brown. This mode of business continued until Brown notified plaintiff to discontinue Willard’s account, and thereafter nothing was sold him on credit. The balance due on the account, $108.45, is being sued for.

It is certain plaintiff would not have extended credit to Willard, a total stranger to him, but for Brown’s voluntary agreement to see that the account would be paid. By introducing Willard, under the circumstances, and recommending him to plaintiff for credit, Brown impliedly vouched for his honesty, and evinced an interest in Willard because of the fact that he was preparing to manufacture Brown’s timber intq ties and Brown expected to profit by purchasing the output of the mill.

Viewed in the light of all the circumstances, Brown’s meaning and intent with regard to Willard’s account, cannot be misunderstood. It is equally clear as to whom the credit was really given. If there had been any doubt on these two propositions, Brown has removed same by his own construction of his relationship to plaintiff. He kept in touch with Willard's dealing with plaintiff, made payments on the account for him, and when Willard’s business was in such condition as to cause apprehension as to his ability to pay his debts, Brown notified plaintiff to discontinue the account.

It is our opinion the prohibition of subdivision 3, article 2278, of the Civil Code, does not apply in this case. Brown did not become the surety for Willard, nor the guarantor of his account, but became bound as principal with him for the payment of the account. Two persons may be bound as principals for the same debt, when, as between them, only one in reality should pay it. Watson Bros. v. Jones, 125 La. 249, 51 So. 187.

In the recent case of Wallenburg v. Kerry, 16 La. App. 221, 133 So. 823, we had occasion to review the authorities to a considerable extent, applicable to the principles involved in this case, and that case, in some respects, is pertinent to the instant one. It was there held that for business or pecuniary reasons a person may bind himself for payment of the debt of another — make his own obligation the primary, not collateral, obligation, and thereby take the case out of the prohibition laid down in article 2278 of the Civil Code.

The syllabus in Braud, Inc., v. Beardslee, 1 La. App. 623, is pertinent to the issues here discussed. It reads as follows:

“Parol evidence cannot be admitted and if admitted, cannot be considered to prove the obligation to pay the debt of a third person, but the fact that A and B agreed to pay for merchandise delivered to B can be proven by parol evidence and when established, both A and B will be liable as principals, for two persons may obligate themselves to pay the same debt.”
“Where suit is brought against one for goods delivered to another, and the statute of frauds is pleaded as a defense, the decisive question is: To whom was the credit given?” Day v. Adcock, 11 Ala. App. 471, 66 So. 911.
“A promise, T will see it paid,’ held not necessarily to import a collateral as distinguished from an original promise.” Id.

We quote from syllabi in the following cases from other jurisdictions in support of our views:

“A direct and unconditional promise by one to pay for goods furnished to a third party, made prior to the delivery of the goods, and upon the faith of which the goods were delivered to such third party, is an original undertaking, which is not within the statute of frauds.” Clark v. Jones, 87 Ala. 474, 6 So. 362.
“Where goods are sold and delivered to contractor for construction of owner’s house, any promise of payment made by owner would be collateral and within statute, but where credit was given to owner of house, contract was not within statute.” Shepherd v. Butcher Tool & Hdw. Co., 198 Ala. 275, 73 So. 498.
“A person held chargeable on an oral agreement to pay for goods sold to a third person.” Cameron v. Haas Bros. Packing Co., 3 Ala. App. 520, 57 So. 388.
“A parol promise to pay for goods furnished another, if creating an original liability of the promisor to whom credit is solely extended, is not within the statute of frauds.” Brewer v. Home Supply Co., 17 Ala. App. 273, 84 So. 560.
“Contract whereby seller delivers goods to one party on credit extended to other party is not within the clause of the statute relating to promises to answer for the debt of another.” Morgan v. King, 128 Miss. 401, 91 So. 30.

The lower court held that defendants were bound as principals for the payment of plaintiff’s account, and we think this holding correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed.


text:
    No. 4072
    Second Circuit (Second Division)
    PERRITT & LAWHON v. BUTLER (WERNER, Intervener)
    (May 4, 1932. Opinion and Decree.)

      Argued before STEPHENS, CULPEPPER and TALIAFERRO, JJ.
    John T. Campbell and Coleman Lindsey, of Minden, attorneys for plaintiff, appellee.
    R. F. Langston, of Minden, attorney for intervener, appellant.
   TALIAFERRO, J.

Plaintiff brought suit against defendant to recover $80.39 on open account and tq enforce lien and privilege as furnisher of supplies and money on some 24 cords of pulp-wood, which was sequestered. *

Alex Werner intervened in the suit and asserted ownership of the sequestered wood. He alleged that some time prior to the seizure defendant sold and delivered said wood to him, and that it was in his possession when seized. He claims damages of $35 for attorney’s fees and $15 for loss of time, etc., expended in protecting his rights.

Defendant, a colored man, did not answ'er either the main suit or intervention. The controversy is limited to plaintiff and intervener.

The lower court gave plaintiff judgment for the amount sued for, but set aside the sequestration, and condemned defendant for costs, excepting that incurred in taking down and transcribing the evidence.

Intervener was recognized as the owner of the sequestered pulp-wood, but was condemned to pay the fee of $40 for taking down and transcribing the testimony. His claim for damages was rejected. He has appealed.

In this court plaintiff has filed motion to dismiss the appeal on the ground that less than one hundred dollars is involved. Mover overlooks the fact that not only the value of the property in dispute but also the amount of damages sought is to be considered in determining the question of jurisdiction. The pulp-wood is shown to be worth over $75 and if we add to this the two items of alleged damages the total exceeds one hundred dollars. Hodge v. Mercantile Co., 105 La. 669, 30 So. 142.

Attorney’s fee incurred by an intervener to have his property unlawfully seized restored to him is a proper element of damages on dissolution of a writ.

Dyke v. Walker, 5 La. Ann. 519; Gilkerson-Sloss Com. Co. v. Yale, 47 La. Ann. 690, 17 So. 244; Gilkerson-Sloss Com. Co. v. Baldwin, 47 La. Ann. 696, 17 So. 246; Chatman v. Wren & Turner, Inc., 11 La. App. 224, 123 So. 483.

If such fees are proper elements of damages in a contest involving illegal issuance of writs, it follows that the quantum of such fees is a part of the amount in dispute and properly finds place in any consideration of the court’s jurisdiction ratione materiae.

The motion to dismiss is denied.

MERITS

The lower court held that plaintiff had no lien and privilege on the pulp-wood seized, as the law granting such privileges to furnishers of supplies and money did not include pulp-wood. Plaintiff has not appealed and has not asked for any amendment of the lower court’s judgment, hut on the contrary, in brief, prays that should the appeal not be dismissed that the judgment be affirmed. No complaint is made of the trial judge’s findings on the facts.

With regard to the amount of attorney’s fees claimed by intervener and loss sustained by him on account of time and attention given this case, the record is not convincing. As to the latter item no figures whatever are given and therefore nothing should be allowed. He states that his counsel fee in the intervention was $35. His evidence is not supported by other testimony as to whether such fee is reasonable in view of the small amount involved and the nature of the services rendered. However, the services of an attorney to protect his rights were necessary and some amount should be awarded to indemnify him on that account. The court has the right to apply its own knowledge of such matters in a given case and fix the fee deemed by it as reasonable. We think $20 sufficient.

In view of plaintiff’s position there is left but one other question for us to consider and that is the fixing of the costs for taking down' and transcribing the testimony introduced at trial of the case.

The trial judge has this to say in justification of his ruling that intervener should pay this cost from proceeds of sale of the pulpwood, viz.:

“At the time of the trial of this case the question of haying the testimony taken down by the court reporter came up, and counsel for intervener insisted that over $100.00 was involved and ordered the testimony taken and transcribed. I am still of the opinion that less than $100.00 is involved in the case. * * * It seems to me it would be unfair to force either plaintiff or defendant to pay 'for this testimony, The negro was in no way to blame arid plaintiff did not want it taken down.”

This reasoning would be sound if the appeal should be dismissed for lack of jurisdiction, but since the appeal has been sustained it follows that the fixing of responsibility for costs should take its normal course.

For the reasons herein assigned the judgment of the lower court is amended by decreeing plaintiff responsible for the costs incurred in taking down and transcribing the evidence introduced on trial of the intervention herein, and condemning plaintiff to pay intervener $20 as attorney’s fees for which amount there is judgment in favor of intervener with legal interest from date of this judgment, and, as thus amended, the judgment appealed from is affirmed. ”


text:
    No. 13,973
    Orleans
    DI MARCO v. VIKING PACKING CO.
    (April 4, 1932. Opinion and Decree.)
    Wm. J. O’Hara, of New Orleans, attorney for plaintiff, appellee.
    W. H. Sellers, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit results from a collision between two motortrucks, which occurred at about 4:15 a. m., December 13, 1930. Plaintiff’s truck, which was being used at the time for delivery of bread, was, just prior to the accident, proceeding along the roadway on the upper side of the New Basin Canal and approaching South Claiborne avenue with the intention of turning left at the intersection. The defendant’s truck, a meat delivery truck, was, just prior to the accident, traversing the bridge which spans the New Basin Canal at the intersection of South Claiborne avenue and the New Basin Canal roadway and traveling in the direction of Canal street. The meat truck struck the bread truck when the bread truck had almost succeeded in crossing its path, and damaged it in the rear. The front of the meat truck made contact with the rear of the bread truck, causing damage to its front axle, bumper and headlights.

Only two witnesses testified, the drivers of the two colliding vehicles. As. might be expected, their testimony is hopelessly in conflict. The negligence imputed by plaintiff to the driver of defendant’s truck is the failure to keep a proper lookout and excessive speed, and defendant charges plaintiff with negligence upon practically the same . grounds. The issue, therefore, depends upon the credibility of the witnesses.

The trial judge thought the testimony of plaintiff’s driver reliable, and rendered judgment accordingly. We cannot say that he was grossly in error. Moreover, the location of the colliding vehicles after the impact, when plaintiff’s truck was discovered to be jammed against the curbing of a small neutral ground located at a point nearly opposite the far or lake side of the New Basin bridge, and the fact that the bakery truck was struck in the rear, are circumstances which tend to corroborate the testimony of plaintiff’s driver. We conclude, therefore, that defendant’s driver was responsible for the accident.

The quantum allowed by the trial court, $168, is challenged upon two grounds. An item of $30 included in this amount is claimed as the price of hiring another truck during the time plaintiff’s truck was being repaired at the rate of $5 per day for six days. The remainder, $138, the cost of repairs to plaintiff’s truck, is disputed as excessive.

The truck, which was used by plaintiff during the time his truck was being repaired, belonged to his father, and we are not satisfied that there was any definite agreement to pay for the hiring of this truck; plaintiff’s, testimony on the subject being to the effect that he was to pay for it out of the money recovered in this suit. We believe this item should be disallowed because of the unsatisfactory proof in support of it.

As to the repairs, we are of opinion that they have been sufficiently established by the evidence to have been properly fixed at the figure claimed.

For the reasons, assigned, the judgment appealed from is amended by reducing the amount awarded plaintiff from $168 to $138, the costs of the lower court to be paid by defendant and appellant, and of this court by plaintiff and appellee. In all other respects, the judgment appealed from is affirmed.


author: LeBLANC, J.

text:
    No. 763
    First Circuit
    SUCCESSION OF DUCRE
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Hiddleston Kenner, of Lacombe, attorney for plaintiff, appellant.

      Harvey E. Ellis, of Covington, and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   LeBLANC, J.

On February 9, 1929, several parties, among them one Nicholas. Ducre, alleging that they were the children and sole heirs at law of their deceased father, Drauzin Ducre, filed a petition in the district court of St. Tammany parish, asking that an inventory of the property belonging to the estate of Drauzin Ducre and his deceased wife, Rosalie Or-done, be taken, and that in time they be recognized as their heirs and placed in possession thereof.

On April 18, 1929, Nicholas Ducre, appeared in the same proceeding, represented by different counsel, and produced a last will and testament in noncupative form by private act, dated March 13, 1928, under which he was appointed testamentary executor, with full seizin and without bond, of the estate of the testator, who is said to be Drauzin Ducre. He prayed that an inventory be taken, and that letters testamentary issue to him, and that he be authorized to qualify as executor. On the same day, the said will was probated before the cjerk of court of the parish of St. Tammany.

The will on its face shows special legacies aggregating the sum of $2,250.

In January, 1930, P. M. Milner, who had been party defendant in a certain proceeding brought against him by Drauzin Ducre, filed a petition in these proceedings, contending that the alleged will which had been offered for probate by Nicholas Ducre, was a forgery, and, because of his interest in the former suit, he had a right to have the proceedings thereunder conducted with the proper and legal representatives of Ducre’s estate. He alleged in paragraph 10 of his petition that he had a “direct pecuniary interest of over three thousand ($3,000.00) dollars in said litigation, and an interest to set aside and annul the alleged will of said Drauzin Ducre and the appointment of Nick Ducre as. executor.”

On the trial of this issue, the lower court rendered judgment decreeing the alleged will to be a forgery, and setting aside the probate thereof, as well as the appointment of Nicholas Ducre as testamentary executor. Ducre then appealed to this court.

No plea to the jurisdiction or motion to dismiss the appeal has. been filed, although counsel for Ducre, evidently anticipating that the question might be raised, discusses it at quite a great length in his brief. The fact that no motion or plea is presented, however, does not preclude us from considering the question of jurisdiction, as it is well established that it may be raised by the court ex proprio motu, and the appeal 'dismissed if it is found that we are without jurisdiction.

We take it that the only matter that is before us for consideration is that involved under record No.- 672 in the district court, entitled Succession of Drauzin Ducre. Whatever were the issues or the amounts or value involved in the other two suits, docketed under other numbers and titles, we are not at present concerned with, save as a matter of evidence, or of argument in this proceeding. That being so, we have to look to the amount or value of property involved in the succession of Drauzin Ducre, for the purpose of ascertaining whether or ijot this court has jurisdiction. As already stated, the special legacies under the alleged will of Drauzin Ducre amount to more than $2,000, and, as also observed, Mr. Milner alleges a direct pecuniary interest of over $3,000 in certain litigation with Drauzin Ducre’s estate. As a matter of fact, it is because of that interest that he claims the right to intervene in the succession proceedings. Pretermitting any question as to his right to do so, it seems to us that by this allegation of his pecuniary interest, which is the only allegation of value whatever that we find in the record, he has gone far in fixing the appellate jurisdiction in this matter, if, indeed, the special legacies mentioned in the will itself had not already fixed it. In answer to that allegation in Milner’s petition, Ducre denies that he (Milner) has any interest whatever, but that denial does not destroy the allegation of value as set out therein. If we are to rest the question of jurisdiction on the pleadings alone, it would seem then that the value or amount involved is beyond that fixed in the Constitution (Const. 1921, art. 7, sec. 29) for cases to be considered by the Court of Appeal, and we therefore have no jurisdiction.

If the pleadings show that the case is beyond the jurisdiction of our court, such jurisdiction cannot be fixed by consent. Counsel for Ducre appreciates the force of an inqiuiry into the question of jurisdiction, as appears from the fact that he states in his brief, that the only asset of the succession is a litigious claim, and that appellant has filed an affidavit fixing the value thereof at less than $2,000. We have searched the record for any such affidavit, but do not find it. Conceding that he has filed it, however, we do not see how it could control the jurisdiction of the Appellate Court over what is, contained in the pleadings, and is nowhere therein contradicted.

It is most significant, moreover, as appears in the transcript of the minutes of the court, that, before the order of appeal was taken, counsel for appellant was “warned by Counsel for Mr. P. M. Milner that this case was returnable to the Supreme Court of the State and not to the Court of Appeal, and the appeal was taken over their protest.”

We are convinced that, because of the amount involved herein, this case is beyond our jurisdiction and is properly appealable to the Supreme Court of the state.

For these reasons, it is therefore ordered, adjudged, and decreed that, in accordance with the provisions of Act No. 19 of 1912, the appeal in this case be transferred to ■the honorable the Supreme Court of the state of Louisiana, within sixty days from the date of the signing of this judgment.


author:
MOUTON, J. ELLIOTT, J.
      MO'CJTON, X ELLIOTT, X

text:
    Nos. 868-976
    First Circuit
    TRADERS’ SECURITIES CO. v. DUTSCH
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Granted.)
    (March 8, 1932. Opinion and Decree on Rehearing.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      A. J. Finney, of Covington, attorney for plaintiff, appellee.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for defendant, appellant.
   MOUTON, J.

An exception of no cause of action was maintained in this case by Judge Prentiss Carter which was overruled by t£is court, 14 La. App. 591, 130 So. 361, remanding the case for trial on the merits.

The following opinion was rendered on the merits by Judge Ott, the successor of Judge Carter on the district bench, quoting:

"It is also urged by defendant that, as the plaintiff sues in the name of the Traders’ Securities Co., Inc., a corporation organized under the laws of Missouri, and the copy of the charter filed in evidence shows that the correct name is, Traders Securities Company, that plaintiff has no right of action to recover on these acceptances. Article 432, Civil Code, provides that corporations must sue in their corporate names, but that a slight alteration is not material. See, also, Town ex rel. Thompson v. Andrus, 37 La. Ann. 699. As plaintiff shows that it is the holder of the obligations sued on, this slight variation in the name given in the petition and that shown by the charter is not material.
"Defendant in his testimony says that he thought he was .signing an order for the jewelry; that he did not read the documents which he signed, although it appears that he can read and write; that he imagined that the contract was attached to the drafts that he signed or accepted; that he paid the first draft because he had not then found out it was. all a fake; that later on he shipped the jewelry back to the Arch Mfg. Co. as it was no good.
“The testimony of Prank Coffman, was "taken for plaintiff by deposition. He_ is President and Treasurer of the corporation, and he testifies that he purchased these four trade acceptances on April 26th, 1928, together with one other, from the Arch Mfg. Co. as a matter of investment, with a discount of ten per cent, that the first acceptance was paid; that his company is the holder and owner of these acceptances for value and before maturity in good faith; that neither he nor his company had any knowledge 'when the purchase was made of any defect in these negotiable instruments; that the four acceptances sued on have not been paid; that he looked up the rating of defendant and found that his credit standing was good; that the acceptances were purchased without recourse on the Arch Mfg. Co. because of the liberal discount which he received. He annexed to his deposition the acceptances, a copy of the charter, and the original cancelled check which his company gave in payment of the acceptances.
“There is' nothing in the testimony to show that plaintiff is a holder in bad faitl* without value, other than mere suggestions in the answer and some slight suspicious circumstances connected with the appearance of the drafts indicating that they might have been detached from another paper by perforated lines, and the further fact that plaintiff purchased without recourse against the original holder. The cancelled check produced bv plaintiff and filed in the record shows that the plaintiff paid cash for the drafts on April 26th, 1928, the sum of $268.20. This is the exact amount of all five acceptances, less the 10% discount allowed plaintiff. It is therefore, clear that plaintiff is a holder for value. The mere fact that paper is purchased without recourse, does not make the holder in bad faith. Joyce, Defenses to Commercial Paper, Second Ed. Par. 647. The taking of commercial paper endorsed without recourse, does not in itself render the purchaser in bad faith nor deprive him of the rights of a holder in due course.
“The only' other circumstance is the claim that the drafts show on their face that they were detached from a contract or some other paper. The defendant signed his_ name at least five times, and admits that he did not know the nature of the documents signed, but thought he was signing an order for jewelry. He imagined that these drafts were attached to the contract, but cannot testify positively to that effect. He was clearly negligent in failing to read the document signed. However, inequitable as it may appear to shut out the defense which the defendant has as. against the vendors of the jewelry, the courts are powerless to give him relief against the plaintiff who appears to be the holder of the negotiable paper signed by defendant, in due course and for value, The plain terms of the negotiable instrument law will not permit it to be done. Sections 51 to 59, Act No. 64- of 1904.
“The case of Guaranty Finance Corp. v. Mire, 2 La. App. 794, presented many features as appear in this. case. The defendant in that ease refused to sign the trade acceptances annexed to or forming part of the contract of purchase, and a line was drawn across the face of the drafts to make them non-negotiable before defendant would sign. The Court of Appeals first held that the plaintiff was holder in due course, but on rehearing reversed the ruling, and held the plaintiff was not a holder in due course in good faith. The opinion on rehearing was based on the fact that the defendant proved in that case that the trade acceptances were part of the contract when signed and that they were detached for the purpose of placing plaintiff in the position of holder in due course of a negotiable instrument. In the present case, there is no proof of this in the record and no copy of the contract which defendant signed. In that case the evidence further showed that lines had been run through the drafts, which, the court held, was an indication of something wrong, and sufficient to take plaintiff out of the category of holder in due course. Besides in that case the original vendor-transferor of the drafts - had written defendant after the maturity of the drafts stating that all they wanted was their interest protected in the drafts, which they held. From this the court concluded that the plaintiff acquired after maturity. See, also, another pertinent case recently decided, Stevens v. Brown, 9 La. App. 463.“

In that opinion, Judge Ott has given a fair recital of the pertinent facts, and has correctly applied the law to the issues involved herein.

The trade acceptances, referred to in the opinion, were made payable to the Arch Manufacturing Company. They are indorsed to order of plaintiff, the Traders’ Securities Company, Arch Manufacturing Company, per W. A. Blackstad. The proof shows that Blackstad, Inc., was a Missouri corporation engaged in the wholesale jewelry business in 1928, when these trade acceptances were given by defendant. It also appears that the Arch Manufacturing Company was simply a trade-name used by the Blackstad Corporation. Counsel for defendant contends that the Arch Manufacturing Company had no existence, and could not have appeared in a court of this state to prosecute its claim against defendant.

In the case of Smith v. Williams, 152 La. 948, 94 So. 859, M. M. Smith sued under a trade-name. The court, in reviewing sections 2668 and 2669, Revised Statutes, also Act No. 64 of 1918, on this subject, said:

“A person may transact business and execute his contracts under any name he may choose to adopt, provided, of course, no fraud be committed.”

The exception was overruled, the court saying:

“Whether there was any fraud committed by plaintiff in entering into a contract under an assumed name is a matter of defense and does not arise on exception of no cause of action.”

It is therefore obvious that business, done under an assumed or trade-name is not for that reason stricken with nullity, so as to preclude any recovery in such a case. To the same effect, see Kent v. Mojonier, 36 La. Ann. 259; Wolfe v. Joubert, 45 La. Ann. 1104, 13 So. 806, 21 L. R. A. 772; In re Pelican Ins. Co., 47 La. Ann. 935, 17 So. 427.

Suit could therefore have been brought under the trade-name of Arch Manufac- | turing Company, subject, however, to the defense of fraud by defendant against recovery for the jewelry.

Plaintiff in this case is not the Arch Manufacturing Company, but appears as the purchaser of these trade acceptances before maturity and for value. It is shown that plaintiff company is a corporation distinct from the Arch Manufacturing Company or the Blackstad Corporation, with which it had no connection whatsoever and no business relations, except as the purchaser of these trade acceptances.

Prank Coffman, president and treasurer of plaintiff company, testifies that the Arch Manufacturing Company and Blackstad, Inc., are one and the same, the trade-name of Arch Manufacturing Company 'being used by Blackstad merely to carry out its business, operations. As before stated, the indorsements on these trade acceptances had been made by William A. Blackstad for the Blackstad Corporation. Coffman says, he saw the by-laws of his company which gave him the authority to make these indorsements, and, it may be appropriate to say here, that there is no evidence in the record to show that these statements of Coffman are not true. It seems to us, under the facts above related, that the transfer of these acceptances was properly authorized, and conveyed title. Coffman testifies that before making the purchase he consulted the rating book of the mercantile agencies, Bradstreet and Dun, where he found that defendant was rated by one of the agencies at from $10,000 to $20,000, with “first rate of credit”; that by the other he was rated from $3,000 to $5,000 “net worth with fair credit.” Basing himself on that rating, he says, he bought the paper of defendant believing that at a discount of 10 per cent he was making a good investment for his company. The proof is that he gave -the check of his company for the acceptances, less the discount.

It may be said that the discount appears small, but if, on the other hand, he had gotten a liberal discount, it might have been argued that he had obtained the transfer because the acceptances had no value, and were not collectible.

The policy of the law is favorable to the holder of a negotiable paper, and cogent evidence is required to convict him of bad faith. New Orleans Canal and Banking Company v. Samuel Templeton, 20 La. Ann. 141, 96 Am. Dec. 385.

Negotiable notes in the hands of a third person are presumed to have been acquired in good faith, until the contrary is made to appear. Hillard v. Taylor, 114 La. 883, 38 So. 594.

It is a well-recognized fundamental principle that good faith is presumed in all contracts, not only in those affecting negotiable instruments. Fraud is never presumed. Fraud, it is true, may be implied, when the evidence justifies such an inference.

The facts and circumstances, above related, at most, might create a suspicion, but cannot justify this court to imply that plaintiff is not entitled to recover because of the fraud and collusion urged by defendant as a defense, but which is not sustained.

The judgment in favor of plaintiff for the amount claimed with legal interest is therefore affirmed, with all cost of court against defendant.

ELLIOTT, J.

(dissenting). It is my ■conclusion that the judgment appealed from is erroneous, and should be reversed, and plaintiff’s demand rejected.

To my mind, it seems that the acceptances sued on have not been legally indorsed nor legally negotiated; that the negotiation claimed to have taken place is without effect. If my conclusion is correct, it follows that plaintiff has no more right to collect from the defendant Dutsch than Arch Manufacturing Company would have had.

The acceptances bear on their back what purports to be an indorsement, as follows:

“Without recourse, pay to the order of Traders Securities Company. (Signed) Arch Manufacturing Company, per W. A. Blackstad.”

The Negotiable Instrument Law, Act No. 64 of 1904, title 1, article 1, sec. 1, provides that an instrument in order to be negotiable “Must be payable to order or to bearer.” These acceptances were drawn payable to order.

Section 8 of the law provides:

“The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order.”

The law in providing that an instrumeat must be “payable to the order of a specified person or to him or his order,” means that the instrument must be drawn payable to some person, firm, or corporation having power to indorse, negotiate, enter into contracts, etc. Arch Manufacturing Company is neither. It is a mere trade-name used by Blackstad, Inc., for the purpose of their jewelry business.

Frank Coffman, president, treasurer of plaintiff, says:

“These bills of exchange were endorsed in my presence on behalf .of Arch Manufacturing Company by William A. Blackstad, and he had authority to make such endorsements.”

He further says:

“I know that William A. Blackstad had authority to endorse these bills of exchange on behalf of his company, for the reason that I asked for and saw the bylaws 'of his company which gave him such authority.”

But he says further on:

"Arch Manufacturing Company and Blackstad, Inc., are one and the same, Arch Manufacturing Company being merely a trade name used by them.”
“That Arch Manufacturing Company is in truth and in fact Blackstad, Inc., which is a Missouri corporation.”
“Arch Manufacturing Company is simply a trade name used by Blackstad, Inc.”

Arch Manufacturing Company, the nominal drawer and indorser of these acceptances, did not draw nor indorse them. It( has no existence, and cannot do anything.

Blackstad, Inc., cannot indorse them using Arch Manufacturing Company as a name in order to do it, because Blackstad, Inc., is a corporation, and must trade, indorse and contract in, its own name.

“A corporation must have a name. And it is in that name that it must sue or be sued and do all its legal acts; although a' slight alteration in the name is not important.”

See Civil Code, article 432, and other laws on the subject.

I therefore take the position that the purported indorsement of these acceptances is not a legal indorsement, such as the law requires in order to effectuate a negotiation.

An instrument that is payable to bearer does not need any indorsement in order to make it negotiable.

The law, section 9, provides:

“The instrument is payable .to bearer: * * * When it is payable to the ordey of a fictitious or non-existing person, and such fact was known to the person making it so payable. * * *”

According to Mr. Dutsch,' he did not know at the time he accepted these instruments that Arch Manufacturing Company was a mere trade-name. He supposed that he was dealing with a person, firm, or corporation. His acceptance having been made without knowledge that the purported drawer, whose , indorsement was necessary in order to make the instruments negotiable, was a mere trade-name, his acceptance does not, under the letter of the Taw, make these acceptances payable to bearer.

It therefore seems to me, that under the situation disclosed, these acceptances were not legally indorsed, negotiated, nor susceptible of such method of transfer, with the result heretofore stated. The cases Shipman v. Bank of New York, 126 N. Y. 318, 27 N. E. 371, 12 L. R. A. 791, 22 Am. St. Rep. pages 821-829; and Armstrong v. National Bank, 46 Ohio St. 512, 22 N. E. 866, 6 L. R. A. 625, 15 Am. St. Rep. pages 655-658, have strong bearing on the present case.

It further seems to me that the burden of proof is upon the plaintiff to show that it is a holder in due course, and that such fact does not appear in its favor.

Section 55 of the Negotiable Instrument-Law provides:

“The title of a person who negotiates an instrument is defective within the meaning of this act -when he obtained the instrument, or any signature thereto, by-fraud, duress, or force and fear, or other unlawful means, or for án illegal consid-, eration, or when he negotiates it in breach of faith, or under such circumstances as amount to a - fraud.”

Section 56:

“To constitute notice of an infirmity in the instrument or defect in the title of ; the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that , his action in taking the instrument amounted to bad faith.”

Section 59:

. "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some other person under whom he claims acquired the title as. holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”

The Supreme Court, in Lanfear v. Blossman, 1 La. Ann. 148, 156, 45 Am. Dec. 76, quoting from Story on Bills of Exchange, said:

“What circumstances will amount to actual or constructive notice of any defect or infirmity in the title to the bill, so as to let it in as a bar or defence against a holder for value, has been a matter of much discussion and of no small diversity of judicial opinion. It is agreed on all sides that express notice is not indispensable, but it will be sufficient if the circumstances are of such a strong and pointed character as necessarily to cast a shade on the transaction, and to put the holder on enquiry.”

In Louisiana State Bank v. Orleans Navigation Company, 3 La. Ann. 294, the court says:

“Express notice is not necessary to charge the holder with what the law considers to be notice of any defect or infirmity in a note or bill, so as to let in a defence against a holder for value; it is sufficient, if the attending circumstances are of such a positive and pointed character as to cast a shade on the transaction, and to put the holder on enquiry.”

In Hays v. Lapeyre & McCaleb, 48 La. Ann. 749, 19 So. 821, 823, 35 L. R. A. 647, the court says:

“Direct and express notice is not always indispensable, to take notes out of the pale of commercial law and cut off the equities. When the circumstances are such as to bring a particular case under the operation of that rule, the maker of the note is legally entitled to insist upon its application regardless of the question of actual knowledge on the part of the purchaser of the note.”

From Ruling Case Law, volume 3; subject, Bills and Notes, sec. 239:

“It has been said that good faith means payment of value for the instrument, but the payment of a valuable consideration is not alone sufficient to establish good (faith. Nor does the additional fact of acquisition before maturity establish a case of bona fides. It should appear also that the facts and circumstances attending the transfer were not such as to charge the transferee with notice of a defect or infirmity in the paper,” citing Vairin v. Hobson, 8 La. 50, 28 Am. Dec. 125.

It is obvious from the edges of the acceptances that they have been detached from some other paper by means of perforations.

\

The defendant cites, in that connection the case of Rochford v. Alick McGee, 16 S. D. 606, 94 N. W. 695, 61 L. R. A. pages 335, 102 Am. St. Rep. 719.

In the ease cited, it was established that a note had been cut out of a paper containing the contract of the party. In the present case, the perforations made may be due to the fact that these acceptances were detached from one another; but in connection with the testimony of Mr. Dutsch the perforated condition of the edges tends to support his contentions.

Mr. Coffman, plaintiff’s president, etc., says he annexes to his testimony a copy of plaintiff’s charter. It was not done; but he annexed a certificate' of its incorporation, which stated that it is organized for manufacturing business purposes, and that its capital stock is $10,000.

Each of these acceptances contain on their face a printed statement, as follows;

“The obligation of the acceptor hereof arises out of the purchase of goods from the drawer.”

The testimony shows that Coffman was well acquainted with the business of Blackstad, Inc., and it is a justifiable inference that he knew that the goods referred to on the face of the acceptances was jewelry, which had been sold to Dutsch on time, and was aware of the worthless character thereof. He saw on the face of the acceptances that they called for no interest, nor for the payment of attorney’s fees in case of suit. He testified that Traders’ Securities Company, Inc., paid $268.20 therefor, without recourse, giving Arch Manufacturing Company, Inc., a check for the amount. This check is contained in the record. It has cut on it the word “paid,” and bears some purported bank indorsement which establishes nothing, and has on its back, placed there with a rubber stamp, an indorsement by “Arch Mfg. Co.”; by whom placed there does not appear. The amount claimed to have been paid for these acceptances amounts to 90 per cent of the total sum called for by the acceptances on their face. A prudent conservative business concern, engaged in business for a profit, could not afford to pay such a cash price for paper, without recourse, in advance of the maturity of the paper. To make a profit, every acceptance would have to be paid, without suit, otherwise there would result loss without recourse. Plaintiff could not reasonably stay in business but a short time on its capital, paying such a price for such paper without recourse. Taking the entire record showing, it seems to me to be a reasonable conclusion that plaintiff’s business is collecting for Blackstad, Inc., and that Blackstad, Inc., is endeavoring to aecomPlish through Traders’ Securities Company, Inc., a collection that would not be attempted in its own name.

Our law has endeavored to protect our citizens from wrongs of this kind. Rev. St. 1870, sec. 2668; Act No. 119 of 1888; Act No. 64 of 1918 (sections 1 and 5, amended by Act No. 303 of 1926, sec. 2); Act No. 240 of 1918. The object of these enactments is to prevent fraud in matters like the present. It has been held by the Supreme Court in a number of cases, Halliday v. Bridewell, 36 La. Ann. 238; Kent v. Mojonier, 36 La. Ann. 259; Wolfe v. Joubert, 45 La. Ann. 1100, 13 So. 806, 21 L. R. A. 772; In re Pelican Ins. Co., 47 La. Ann. 935, 17 So. 427; Smith v. Williams, 152 La. 948, 94 So. 859; Toelke v. Toelke, 153 La. 697, 96 So. 536, that because a party does business in a firm name, when he is the only person interested in the business, is no reason why he cannot sue and compel the payment of a debt justly due him on account of said business; but in the cases cited, there was no effort to accomplish a fraud by collecting something not justly due.

In the present case, the record, to my mind, justifies the conclusion that the name Arch Manufacturing Company is used and put forward in this business with Dutsch by Blackstad, Inc., and Traders' Securities Company, Inc., for the purpose of compelling Dutsch to pay for jewelry that was worthless, and which the plaintiff does not pretend had any real value as such. In the case of Smith v. Williams, 152 La. 948, 94 So. 859, the court, construing Act No. 64 of 1918, had this to say:

“It is a general rule that, in the absence. of statute to the contrary, a person may transact business and execute his contracts under any name he may choose to adopt, provided, of course, no fraud be committed.’’

In this case, under the showing made, the plaintiff cannot recover from Dutsch, except as the result of a fraud committed by compelling him to pay for jewelry that was worthless and of no value.

I therefore dissent.

ON REHEARING

See, also, 14 La. App. 591, 130 So. 361.

MO'CJTON, X

Section 9 of the general act relating to negotiable instruments, Act No. 64 of 1904, page 147, says that the instrument is payable to bearer:

“1. When it is expressed to be so payable. * * *
“3. When it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable.”

In this- case it is contended that the person to whom the trade acceptance bill was made payable was a fictitious or non-existing person, and that this fact was not known to the acceptor. It is mainly on this contention that the application for the rehearing is grounded, and, though not expressed by this court, was the point upon -which the rehearing was granted. A re-examination of the case has led us to the consideration of section 62 of that act, which reads as follows:

“The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits, — '
“1. The existence of the drawer, the genuineness of his signature, and his capacity^ and authority to draw the instrument; and
“2. The existence of the payee and his then capacity to indorse.”

In commenting on that section of. the general act relating to negotiable instruments, Brannon in his annotated cases says:

“The acceptor of a bill by accepting it, (1) engages that he will pay it according to the tenor of his acceptance, (2) is precluded from denying to a holder in due course, the existence of the drawer, the genuineness of his signature, and his ca; pacity and authority to draw the bill.”

We found, as was stated in our original opinion, that the plaintiff had acquired the trade acceptance in due course, and, under section 62 of the Negotiable Instrument Law, we hold that defendant could not deny the existence of the drawer, the genuineness of his signature, and his capacity to draw the bill.

This disposes of the real point involved in the rehearing and confirms us in the correctness of the original opinion rendered by this court, which is therefore reinstated and made our final opinion herein. The relief sought in the rehearing is denied.

ELLIOTT, X

(dissenting). I have not access to the authority cited in connection with Act No. 64 of 1904, sec. 62, which provides that:

“The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits,—
“1. The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and
“2. The existence of the payee and his then capacity to indorse.”

But it seems to me that its meaning i^ substantially like that of the statute and has. reference to some real actual drawer, drawee, and indorser who may become obligated on the instrument and obligate himself thereon to others and not to some fictitious or non-existent person not having the capacity contemplated by the law.

I will take occasion to further say that a bill of exchange must have a drawer, drawee, and indorser, who may become responsible to an acceptor as a secondary debtor. In this, case the ostensible drawer, drawee, indorser is a trade-name, Blackstad, Inc., which a professed corporation is said to use for the purpose of its jewelry trade. A corporation, as heretofore stated, cannot, like an individual, trade in a fictitious name. It cannot bind itself, nor bind others, except when it trades in its own name. I' still dissent for the reasons heretofore stated, and to which I now add the reasons presently stated.