author: WEBB, J.

text:
    No. 2290
    Second Circuit
    REID v. MISSOURI PACIFIC R. R. CO.
    (November 6, 1926. Opinion and Decree.)
    (January 3, 1927. Writs of Certiorari and Review Denied by Supreme Court.)
    (This case previously reported in 3 La. App. 608.)

      (Syllabus by the Editor)

    REVERSED ON REHEARING
    1. Louisiana Digest — Automobiles—Par. 6; Railroads — Par. 58.
    A co-laborer riding on a truck with the-driver is not bound to anticipate lack of precaution, of the driver in driving upon a railroad track where the situation shows that an ordinarily prudent person would not have been alert enough to apprehend the default of the driver and warn him in time to avoid the accident.
    2. Louisiana Digest — Damages—Par. 104, 105.
    $4000.00 is considered sufficient quantum of damages for being temporarily rendered unconscious and sustaining cuts and bruises, one of which left a permanent scar on the jaw and another broke the fibula of his left leg and sprained the ankle, the accident confining him to his bed for four weeks and disabling him three months.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides.
    Action by Dempsey C. Reid against Missouri Pacific Railroad Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed on rehearing.
    Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

This cause was consolidated, for the purposes of trial, with the case of Sidney A. Townsend versus Missouri Pacific Railroad Company, this day decided, and the facts, as stated in the opinion rendered in that case and in the original opinion rendered herein, control the decision in this case.

It is conceded that the negligence of Townsend, who was driving the car at the time of the accident, cannot be imputed to Reid, the plaintiff here, but it is contended that Reid was himself guilty of negligence, and this view was taken in the original opinion.

It has been said that the guest of the driver of an automobile is not required to keep a lookout for danger but can rely upon the discharge of that duty by the driver, who is responsible for the operation of the automobile; (Churchill vs. Texas & Pacific Railway Co., 151 La. 726, 92 South. 314); and it appearing from the evidence that Townsend was more familiar with the situation of the crossing and in control of the operation of the car, we are of the opinion that the rule is at least applicable to Reid to the extent that he was not bound to anticipate any lack of precaution on the part of Townsend, and that the failure of Townsend to exercise due care before driving upon tjhe crossing cannot be held to have established negligence on the part of Reid, unless it appears that the omission of Townsend was known to tbe plaintiff in sufficient time for him to have warned Townsend of the danger of the situation, or the danger of the situation was presented to plaintiff’s mind in sufficient time for him to have prevented Townsend from placing the truck upon the crossing.

- When the truck was momentarily stopped by the driver at the abutment to the 'crossing and the plaintiff observed the track, there was no impending peril or train in sight, and conceding that the observation made by him at that time was sufficient to have apprised him of the danger of placing the truck upon the crossing without taking further precaution, we do not think the evidence establishes the situation to have been such that an ordinarily prudent person would have been alert enough to have apprehended the default of the driver, ■ and to have had time to warn him against his omission.

The perilous situation having been created by the driver, Townsend, in driving upon the track without having taken due precaution, the question as to what might have been the result had Reid continued to observe the track while the truck was being driven over the crossing is, in our opinion, too conjectural to serve as the basis of a judgment declaring such lack of vigilance on the part of plaintiff to have contributed to his injury.

The plaintiff, a young man of twenty-four years of age, was earning a salary of seventy-five dollars per month at the time of the injury; he was Tenderer unconscious by the collision and sustained cuts and bruises, one of which has left a permanent scar on his jaw which causes a very noticeable disfigurement; the fibula of his left leg was broken a few inches above the ankle and his ankle was sprained and was in a weakened condition at the time of the trial; he was confined to his bed for about four weeks and disabled for about three months.

The verdict of the jury was in favor of plaintiff for five thousand dollars, and defendant urges that the amount is excessive, citing many cases in which a less amount was allowed' for similar injuries not producing serious loss of earning capacity.

While it is impossible to make exact comparison of the damages which may result to different persons even from identical injuries, there is some uniform approximation, and we are of the opinion that an award of four thousand dollars would be sufficient under the jurisprudence of this state for the injuries sustained.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered be set aside, and that the judgment appealed from be amended so as to allow the plaintiff to recover the sum of four thousand dollars, with interest as fixed in the judgment, and that as thus amended the judgment appealed from be affirmed, plaintiff to pay the costs of the appeal.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2280
    Second Circuit
    AMERICAN LAW BOOK CO. v. JONES, JR.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Action—Par. 1, 2; Pleading — Par. 62.
    An allegation in a petition that books were “sold and furnished” is equivalent to an allegation that books had been “sold and delivered” and states a cause of action.
    2. Louisiana Digest — Action—Par. 1, 2; Pleading — Par. 62.
    A petition in a suit on promissory notes, signed by defendant, correctly describing them states a cause of action.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. E. S. Prudhomme, Special Judge.
    Action by American Law Book Company against J. W. Jones, Jr.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded for trial.
    Rusea & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    J. W. Jones, Jr., of Natchitoches, attorney for defendant, appellee.
   WEBB, J.

The plaintiff sued to recover judgment against defendant in the sum of one hundred and fifty-eight and 25-100 dollars, alleging that said amount is due and owing for books sold and furnished to defendant, as shown by twelve notes and an itemized account annexed to the petition.

The defendant excepted that the petition failed to state a cause of action, which was sustained, and plaintiff appealed.

OPINION

Article 2 of the plaintiff’s petition is as follows:

“That said amount is due and owing for law books sold and furnished the said Jas. W. Jones, Jr., as shown by photographic copy of original contract between petitioner and the said Jas. W. Jones, Jr., and twelve (12) notes in favor of petitioner for- $10.00 each, made and signed by said Jones, and attached itemized account, and affidavit as to the correctness of same, all of which, the contract, the twelve (12) notes, the itemized statement, and the affidavit is attached.”

The notes attached were all past due arid were drawn in the usual manner.

We are informed that the exception is based upon the failure of the plaintiff to allege that the books had been delivered.

We are of the opinion that the allegation that the ' claim was for books sold and furnished was equivalent to an allegation that the books had been delivered.

However, if this be not true, the petition states a right of action on the notes, and if the petition states a cause of action on any ground the exception cannot be sustained.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the exception of “no cause of action” be overruled, and the cause ' remanded for trial; defendant to pay all costs of appeal.


text:
    No. 2907
    Second Circuit
    CAMPBELL v. WISE
    (February 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    (ON MOTION TO DISMISS APPEAL)
    1. Louisiana Digest — Intervention—Far. 13; Courts — Par. 128.
    Where an intervention is clearly a distinct proceeding to obtain a payment of $3000.00, the Court of Appeal lacking jurisdiction, the case will be transferred to the Supreme Court under Act No. 19 of 1912.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by W. O. Campbell against W. H. Wise.
    There was judgment for plaintiff and intervenors appealed.
    Case transferred to the Supreme Court.
    J. Rush Wimberly, of Arcadia, George M. Wallace, of Shreveport, attorneys for plaintiff, appellee.
    Goff & Barnette, of Arcadia, attorneys for intervenors, appellants.
   WEBB, J.

W. 0 Campbell, the holder and owner of a note drawn by W. H. Wise, representing a part of the purchase price of lands purchased by Wise and secured by mortgage and vendor’s privilege on the property purchased, proceed via executiva to enforce payment.

Following the seizure of the property and just prior to the sale, Mrs. Ida Snider Wilson and others filed a petition, which was given the same number as the proceeding via executiva, alleging that they were the children of Mrs. W. H. Wise by a former marriage and that their mother had been recognized and qualified as their natural tutrix, and that following her marriage to W. H. Wise she had been retained as tutrix and W. H. Wise had been recognized as co-tutor; that each had taken the oath but had failed to inscribe on the mortgage records any extract of inventory or to give bond, and that petitioners had a claim against Mrs. W. H. Wise and W. H. Wise resulting from the tutorship and a mortgage on the property seized under ex-ecutory process next in rank to that of W. O. Campbell to secure the indebtedness due them by their mother, tutrix, and co-tutor W. H. Wise.

They further alleged that there was an action pending between their mother and W. H. Wise for separation from bed and board and that W. H. Wise was insolvent, and that on settlement of the tutorship their mother and W. H. Wise will be found to be indebted to them in the sum of three thousand dollars.

They prayed for service on J. E. Currie, sheriff; W. O. Campbell, the seizing creditor; W. H. Wise and Mrs. W. H. Wise, and after due proceedings for judgment ordering W. H. Wise and Mrs. W. H. Wise to file an account in the tutorship proceedings and for judgment against Mr. and Mrs. W. H. Wise in solido in the sum of three thousand dollars and with recognition of their legal mortgage on the property seized and the proceeds of the sale.

They further prayed for an order directing the sheriff to hold the proceeds of the sale to be made under the proceeding via executiva, less the amount due Campbell, together with interest and costs, and subject to the further orders of the court, and for all orders and decrees necessary and for general relief.

An order was issued to the sheriff in. accordance with the prayer of the petition, and following this order W. H. Wise filed a petition in which he set forth that the property seized had been sold and that the sheriff was holding the proceeds of the sale, less the amount due Campbell, together with interest and costs, under the order of the court, and prayed that he he allowed to bond the proceeds, and obtained an order permitting him to bond; whereupon Mrs. Snider and her co-plaintiffs applied for and obtained a suspensive appeal from the order permitting W. H. Wise to bond the proceeds of the sale, less the amount due the plaintiff, W. O. Campbell, and W. H. Wise moves to dismiss the appeal, urging here that the order granting him the right to bond was an interlocutory-decree from which an appeal could not be taken.

OPINION

The pleadings clearly show that W. O. Campbell has received the amount due him, and that he has not any further interest in the matter, and the proceeding via executiva insofar as Campbell and Wise are concerned has been concluded, and although Mrs. Ida Snider Wilson, et als., style themselves intervenors and third opponents and (their action took the same number as the proceeding via executiva, their action is clearly distinct from such proceeding and is in fact simply an action against Mr. and Mrs. W. H. Wise to obtain a settlement of the amount due by them as tutrix and co-tutor which is alleged to be three thousand dollars, and the order granting W. H. Wise the right to bond was taken in that action, of which this court is without jurisdiction.

It is therefore ordered, under the provisions of Act No. 19 of 1912, that the case be transferred to the Supreme Court.


text:
    No. 2290
    Second Circuit
    TOWNSEND v. MISSOURI PACIFIC R. R. CO.
    (November 6, 1926. Opinion and Decree.)
    (April 25, 1927. Judgment of Court of Appeal Reversed by Supreme Court on Writs of Certiorari and Review.)
    (This case previously reported in 3 La. App. 598.)

      (Syllabus by the Editor.)

    AFFIRMED ON REHEARING
    1. Louisiana Digest — Automobiles—Par. 5; Railroads — Par. 59, 63, 64.
    While there are situations where it is not necessary for one to stop, look and listen before crossing a railroad track, nevertheless, the knowledge of the driver of a house obstructing the view of the track at the point where he stopped was sufficient to make him negligent in attempting to cross the track without having listened for the approach of cars.
    2. Louisiana Digest — Railroads—Par. 59, 60, 61, 62, 63; Negligence — Par. 25.
    While it is negligence of the employees of a railroad to operate its train over a public crossing of. a road that was used very little without the precautions usually required, nevertheless, the contributory negligence of the driver of the automobile defeats his recovery of damages.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. John A. Williams, Judge.
    Action by Sidney A. Townsend against Missouri Pacific Railroad Company.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed on rehearing.
    Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

The facts found to have been established are stated in the original opinion, and insofar as it is material for the consideration of the case on rehearing, we repeat that the evidence shows that when plaintiff stopped the truck with its rear wheels against the plank approach to the crossing, the motor was not “shut off”, and was making such a noise that it was impossible for plaintiff to have heard the train of cars which was approaching the crossing.

In the original opinion it was held that the defendant was negligent in its operation of the train of cars, and we have nothing to add to that conclusion, and the only questions which we shall consider relate to the alleged- contributory negligence of the plaintiff under the facts stated.

It is urged that the court erred in finding the plaintiff negligent, and, in - any event, in allowing the defendant to take advantage of plaintiff’s negligence under the facts established, the plaintiff contending that he had exercised due care when he had momentarily brou'ght the truck to a stop at the plank abutment and had observed the track and not seeing any train approaching on the track had started to negotiate the crossing, and in any event that the action of the defendant in throwing the cars over the' crossing was such gross and wanton negligence as to debar it from being relieved from' liability under the plea of contributory negligence.

Considering the question of the negligence of the plaintiff under the facts established, it appears that while he did bring the truck to a momentary stop at a point which was as near the track as it was, in the opinion of the writer, practical for him to get before taking the crossing, yet from this point the plaintiff’s view of the track to the north, with the exception of a short distance of approximately eighty feet,' was obstructed by a house situated near the track, and that he did not listen, or if he did listen, he could not have heard the approaching cars, due to the noise made by the motor.

The jurisprudence of this state is well settled as to the duty of a traveler on the highway to stop, look and listen before going upon a railroad crossing, and while there aré situations in which it has been held that one may be absolved of the duty to come to a position of immobility when their senses of sight and hearing may he exercised without so doing, we do not think that the plaintiff, having knowledge of the obstruction of the view at the point where he stopped the truck, was in the exercise of ordinary care in attempting to pass over the crossing without having listened for the approach of the cars.

“The traveler * * * is rigidly required to do all that care and prudence would dictate to avoid injury, and the greater the danger, the greater the care that must be exercised to avoid it; and where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, building or other obstructions and hindrances, it is more than usually difficult to see or hear, greater ■ precaution . must; be taken to avoid injury than would 'otherwise be necessary.”,

7 Am. & Eng. Ency. Law, page 435.

Vincent vs. M. L. & T. R. R. & S. S. Co., 48 La. Ann. 935, 20 South. 207.

Considering the question as to whether or not the negligence of, the defendant was of such nature as would bar it from pleading contributory negligence and of taking advantage of the' negligence of the plaintiff, this doctrine, insofar as it relates to the negligence of the operators of trains at crossings, is confined to the situation of the place, as where the crossing is in a city or other populous district which the operators of the trains are presumed to know is being constantly used by the public; in ' such cases the operators of trains may well be presumed to be conscious of the probable consequences of the omission of proper precautions and in this manner held to have been wanton or reckless; but in the present instance, the crossing was not in a city or populous district; .it was not a “public crossing” in the sense that it was a part of the public road, and the evidence shows that it was seldom used and then only by the employees of the Lee Lumber Company, and we are of the opinion that the defendant, although it did not exercise due precautions and was guilty of negligence in operating its train over the crossing, the situation of the place was not such as to render its omissions wanton or reckless, and to' bar it from taking advantage of the contributory negligence of the plaintiff..

For the reasons assigned, it is therefore ordered, adjudged' and decreed that the' former opinion and judgment rendered ’ herein be reinstated and made the judg^ ment of this court, and that plaintiff’s demands be rejected at his cost.


author: ODOM, J.

text:
    No. 2951
    Second Circuit
    WELLS v. CAGLE ALBRECHT & COMPANY, Intervenor
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Agriculture—Par. 22; Estoppel — Par. 33, 45.
    The owner of a privilege on cotton under Article 3217 of the Civil Code for advances made to a tenant is equitably estopped against asserting his right to the privilege on the cotton in the hands of an innocent purchaser whom he misled by his conduct in permitting the tenant to sell other portions of the same crop to the. same purchaser without demanding the proceeds.
    Appeal from the Fifth Judicial District Court of Louisiana, ■ Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by. Edgar L. Wells against S. J. Cagle. S. Albrecht, intervenor.
    There was judgment-for plaintiff in intervention and defendant in intervention appealed. - . . .
    Judgment kffirm'ed.

      Warren, Hunt, qf Rayville, attorney for plaintiff in intervention, appellee.
    Ellis & Ellis, of 'Rayville, attorneys for defendant in intervention, appellant.
   ODOM, J.

Several issues are raised in the pleadings in this case, but they have ajl been eliminated, except one. It is not necessary to state any of them, except the one before the court.

That qne is as follows:

The plaintiff, Wells, owns a plantation in Richland parish, which he leased to the defendant, Cagle, for the year 1926.

Cagle being without means to operate the plantation, in 1926, sought and obtained from Wells a loan of $1500.00 with which to make his crop.

The money advanced by Wells was used by Cagle in making the crop. Wells, therefore, had a privilege on the proceeds of the farm that year under Article 3217 of the Civil Code. Late in the fall of that year Cagle sold to Albrecht, the intervenor, six bales of cotton of the crop of that year. Subsequent to the date of the sale of the cotton by Cagle to Albrecht, Wells brought this, suit against Cagle to collect the sum advanced to make the crop, alleging that he had a privilege on the crop for his advances and caused Cagle’s crop to be seized; along with other property, the six bales of cotton .sold by Cagle to Albrecht were seized.

Albrecht intervened, claiming the ownership of the cotton, setting up that he had purchased it in open market from Cagle in good faith without notice that Wells had or claimed any privilege thereon, and , pleads that Wells is estopped from claiming a privilege on the cotton, the grounds ’ of'estoppel being- that Wells had stood by silently and permitted Cagle to sell the crop without asserting any claim or privilege thereon and without giving notice to that effect.

The district judge rendered judgment in favor of Albrecht & Company, the intervenor, declaring it to be the owner of the cotton in controversy.

As stated, all issues and controversies between Wells and Cagle have been eliminated from the case. The sole issue before us is between Wells and the intervenor, Albrecht & Company, and is whether Wells can, under the circumstances disclosed, enforce his privilege against the six bales of cotton.

Counsel on both sides seem to concede that Wells’ privilege as furnisher of. money to make the crop followed the cotton into the hands of Albrecht & Company. Admittedly Albrecht & Company purchased the cotton in open market from Cagle, the owner, at Delhi, Louisiana, (paying therefor the market price, without notice or knowledge that Wells had or ■claimed any privilege thereon, Wells having no recorded crop pledge.

Apparently this question was not raised in the District Court. The only issue there raised was that of estoppel. As that issue was not raised and passed on by the district judge we shall not pass upon it but consider the case as though Wells’ privilege followed the cotton into-the hands of Albrecht & Company. However, our decision is not to be construed to mean that we concede that point.

Wells unquestionably had a privilege on the cotton and other products of the farm grown and produced by Cagle, under Article 3217 of the Civil Code; but under the circumstances disclosed we think he is equitably estopped from asserting that privilege on the cotton in the hands of Albrecht & Company, the intervenor.

In the year 1926, the year in which the cotton was grown, Cagle had lived upon and cultivated Wells’ plantation. He had full charge of it, managed and cultivated it, sold the cotton without let or hindrance from Wells, collected and handled the proceeds as he saw fit.

Albrecht & Company is a cotton buyer and was represented in that territory by Higginbotham. For a period of some five or six years, including 1926, Higginbotham had each season purchased cotton from Cagle. He had always dealt with Cagle, purchased cotton frqm him and paid him for it. In the fqll of 1926 Wells was on this plantation, living a portion of the time in the house of Cagle. In October Higginbotham purchased from Cagle a lot of some thirty bales of cotton of the crop of that year. At the time that lot of cotton was purchased, Wells was present and witnessed the transaction. Cagle negotiated the sale. When the deal was closed, Wells being present, Higginbotham knowing that the cotton was produced on Wells’ place, asked to whom payment was to be made, and Wells instructed him to pay Cagle, whereupon Higginbotham drew a draft in favor of Cagle, who collected it. Wells remained on the plantation or in that vicinity and must have been in close touch with Cagle’s operations.

Cagle gathered and ginned more cotton, including the six bales in question. When the cotton was ready for market he carried it to Delhi and sold it, not all at one time, to Higginbotham, who drew on Albrecht & Company for the price, the draft being in favor of Cagle.

These sales were made precisely as the one of thirty bales, except that Wells was not present and gave no specific assent thereto. Wells, as stated, was on the plantation or in the community and knew what Cagle was doing and knew the customary course of dealings between Higginbotham and Cagle, and must have known that Cagle was removing the cotton from the place and selling it, yet he in no way intimated to Higginbotham or anyone else, so far as the record discloses, that he had or claimed any privilege on the cotton or that he was dissatisfied with Cagle’s conduct in disposing of the crop and collecting and appropriating the proceeds. If he expected to assert his privilege on the cotton he should not have remained silent. It was his duty to speak. Not only that, he was present when Cagle sold thirty bales of the crop to Higginbotham and expressly sanctioned that sale. He has, therefore, by his conduct, led Albrecht & Company, through its agent, Higginbotham, to deal with Cagle as though he had full' authority to sell the crop and collect the proceeds. He cannot thus mislead a third party to the latter’s injury. If he is now permitted to assert his privilege on the cotton, Albrecht & Company is an innocent sufferer.

The doctrine sanctioned by universal jurisprudence is to the effect:

“That an equitable estoppel arises when a party to an action has, by his fault or negligent conduct, induced his adversary either to do or omit some act or acts by means of -which, the loss .which is claimed against him might havq been averted.”

Wilson Sewing Machine Co. vs. Express Co., 42 La. Ann. 593 (599), 7 South. 710.

This doctrine would not apply, of course, if Albrecht & Company had not been an innocent purchaser.

Rabb vs. Louis Pilot, Sr., 52 La. Ann. 1534, 28 South. 120.

“Where a person with actual or constructive knowledge of the facts induces another, by his words or conduct, to believe that he acquiesces in or ratifies a transaction, as that he will offer no opposition thereto, and that the other, in reliance on such belief, alters his position, such person is estopped from repudiating such transaction to the other’s prejudice.”

16 Cyc. 791.

“To make the silence of the party operate as an estoppel, the circumstances must have been such as to render it his duty to speak. It is essential that he should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth and have been misled into doing that which he would not have done but for such silence.”

16 Cyc. 759.

The judgment appealed from is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    OPELOUSAS FINANCE CO. v. WALKER OPELOUSAS MOTOR CAR CO. CALLED IN WARRANTY
    (May 3, 1927. Opinion and Decree.)

      (Syllabus Toy the Editor)

    ■1. Louisiana Digest — Guaranty—Par. 1, 10. The purchaser of an automobile cannot, under Code of Practice, Article 379, call in personal warranty the seller - when . sued by-. the purchaser of the chattel mortgage notes, there being a lack of privity of contract to authorize ' the call in warranty.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, District Judge.
    Action by Opelousas Finance Co., Inc., against R. W, Walker; Opelousas Motor Car Company called in warranty.
    There was judgment for Opelousas Motor Car Company, called in warranty, and defendant appealed.
    Judgment affirmed.
    S. W. Gardiner, of Ville Platte, attorney for defendant, appellant.
    A. V. Pavy, of Opelousas, attorney for Opelousas Motor Car Company, called in warranty, appellee.
   MOUTON, J.

Defendant bought an automobile from the Opelousas Motor Car Company for $750.00, paid $250.00 in cash and executed eleven promissory notes for the balance of the purchase price, with interest and 10 per cent attorney’s fees in case of collection. Plaintiff, the Opelousas Finance Company, as holder of these notes, brings this suit for enforcement of the vendor’s privilege against the auto, and payment of the notes in principal, interest and attorney’s fees. The title to the auto is not questioned and no defense is urged against the notes or the amount claimed. In his answer defendant asked that the Opelousas Motor Car Company, from whom he had bought the auto, be called in warranty, that the sale thereof to him be annulled for redhibitory defects, and that the same judgment be rendered in his favor against the Opelousas Motor Car Company that might he decreed against him for plaintiff company.

The Opelousas Motor Car Company filed an exception of no cause of action to this call in warranty. Judgment was rendered for plaintiff on the main demand and sustained the exception.

The sole question here is as to whether the defendant had the right to the call in warranty.

•There are two kinds of warranty under our laws, real and personal. C. P. 379. There is no real warranty involved in this case; hence, the question is as to whether defendant has any claim to a personal warranty which the article above cited says: “Arises from the obligations where one has contracted to pay the whole or a part of a debt due by another to a third person.”

In the case of Anselm vs. Wilson, 8 La. 37, suit was brought on a promissory note signed by defendant, who admitted her signature thereto but averred she had paid Erwin the amount before the note was given, and that he had promised to save her harmless against the note, and became her warrantor. The court said:

“There does not appear to have existed any privity between the plaintiff and Joseph Erwin, who was a stranger to the contract sought to be enforced.”

The court held that it was not a case of simple or personal warranty, within the meaning of that part of the Code which authorizes delay for calling in the warrantor. See also Brown’s Executors vs. Copley & Jessup, 19 La. 474; Muntz vs. Algiers & G. Ry. Co., 114 La. 437, 38 South. 410, to the same effect. There is likewise here the lack of privity of contract 'to authorize the call in warranty.

Counsel for defendant refers us to Articles 1764, 2501 C. C., which say that warranty is implied or presumed in every sale. This warranty, it is true, also authorizes the avoidance of the sale on account of some vice or defect in the thing sold. C. C. 2520. Under the provisions of that article, defendant may be entitled to obtain the annulment of the sale to him by the Opelousas Motor Car Company, because the auto was defective or valueless, but this does not give him the right to a call on a simple or personal warranty under Article C. P. 379, and to a delay for the trial of the issue involving the alleged redhibitory defects urged by him.

The lower court correctly denied the demand in warranty.


text:
    No. 2974
    Second Circuit
    DANCIGER v. REID
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Fraud—Par. 10; Evidence — Par. 53.
    The burden of proof is on the plaintiff alleging fraud in a damage suit to establish that fraud and deceit.
    2. Louisiana Digest — Fraud—Par.. 5, 10.
    Where the proof clearly shows that the plaintiff did not show that he was defrauded or misled by a mineral lease contract with the defendant by reason of the fact that another lease w.as on record at the time lease was made, the defendant is not liable in damages.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Joseph Danciger against Shelly Wills Reid, et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed reserving plaintiff’s right to bring an action in warranty.
    J. W. Elder, of Farmerville, attorney for plaintiff, appellant.
    S. L. Digby, of Farmerville, attorney for defendants, appellees.
   ODOM, J.

On February 29, 1924, Lewis W. Reid granted a mineral lease in favor of plaintiff on 160 acres of land owned by him in Union parish, Louisiana, the consideration stipulated in the act being $800.00 cash, and at the same time, by separate act, he sold to J. J. Meyers, agent of plaintiff, one-half of the gas, oil and other minerals in and under the same property for $1000.00 cash. Meyers subsequently transferred his rights under this act of sale to plaintiff.

While these two acts recite that the consideration was paid in cash at the time of the lease and sale, yet it is admitted that nothing was paid to Reid at that time.

Plaintiff contends, and there is nothing shown to the contrary, that it was understood that he should have thirty days in which to examine the title to the land.

The lease contract and the deed were delivered to Meyers, plaintiff’s agent, who kept them until March 28 following, when they were formally accepted by Meyers for his principal, and the acts were both placed on record on that date.

However, plaintiff failed to pay Reid the consideration stipulated in the acts.

On March 26, 1924, subsequent to. the date on which these acts were passed and while plaintiff’s agent, Meyers, had possession of them and was deliberating apparently whether he would accept them, and before Lewis W. Reid, the owner of the land, had been notified of their acceptance, said Reid granted another mineral lease on 120 acres of the land to W. C. Feazel, who recorded his lease on March 26 — -two days prior .to the date on which plaintiff’s lease was recorded.

On April 21 following Meyers and Fred A. Green, both of whom, it seems, represented plaintiff, went to the home of Reid, taking with them a notary public. They found Reid, who was a very old colored man, in bed sick. They were at first denied an interview with Reid by his wife, who locked the door, on the ground that he was too feeble in body and mind to attend to business. But Reid finally prevailed on his wife to let them into his room. Just what transpired at that meeting is disclosed in a notarial act signed by Reid in which he declared and acknowledged that whereas he did, on March'29, lease to plaintiff 160 acres of land and said one-half of the mineral rights in the same land, while in fact he owned the minerals under only 120 acres.

A compromise agreement was reached between the parties and Meyers and Green, representing plaintiff, then and there paid Reid the sum of $1050.00 in cash, the notarial act reciting in full payment for said oil and gas lease covering and affecting said hereinabove first described lands * * * andi in full payment of said one-half of said oil and gas deed and said other minerals under said hereinbefore first described lands.

The “first hereinabove described lands” refers to the 160 acres included in the lease and sale.

The lease contract and the sale of the minerals entered into on March 29 was, therefore, not finally closed until April 21. That point is apparently conceded by counsel for plaintiff.

As already observed, Reid had on March 26 leased to Feazel who had recorded his contract.

Reid died on May 17 following, leaving these defendants as his widow and heirs, against whom this suit is prosecuted.

Plaintiff, in his petition, sets up substantially the above facts, and alleges that, on March 26, 1924—

“the said L. W. Reid fraudulently sold to W. C. Feazel an oil and gas lease” on said land, and that on April 21, 1924—

“as a compromise petitioner agreed to and did pay then and there, as acknowledged by the said L. W. Reid, the sum of one thousand and fifty dollars for a one-half interest in and to the mineral rights and an oil and gas lease covering the S% of SW% and NE14 of SW^, Section 12, Twp. 20 N„ R. 3 East.
“That at the time of making this payment petitioner was not aware that on March 26, prior thereto, that the said Reid had sold to W. C. Feazel an oil and gas lease on the said 120 acres of land and that the said lease was recorded prior to his own, and that this fact was concealed from him by the said Reid.
“That during the summer of 1924 petitioner could have sold the said lease for a profit of ten dollars per acre and that by reason of the fraudulent action of the said Reid he was unable to deliver title thereto, and that the said fraudulent action of the said Reid damaged petitioner, in addition to the five hundred and fifty dollars, in the sum of twelve hundred dollars, and for which he is entitled to recover judgment.”

This is therefore a suit to recover damages based upon an alleged tort, plaintiff claiming that he has been damaged by the alleged fraudulent, deceitful conduct of Reid in selling to him said lease and mineral rights when he had already granted a lease to another party.

This being a damage suit grounded upon fraud but for which plaintiff would have suffered no loss, it follows necessarily that the burden was upon plaintiff to establish fraud and deceit on Reid’s part and that without such proof plaintiff’s action must, fall.

Plaintiff has utterly failed in his proof.

Admittedly the transaction between Reid and plaintiff was finally closed on April 21; but Meyers and Green, plaintiff’s authorized agents, admitted on the witness stand that on April 21, when the deal was finally closed and the $1050.00 paid to Reid, they knew that Reid had on May 26 leased the property to Feazel and that his contract was duly recorded.

There is not one syllable of testimony in the record showing that plaintiff was misled or deceived by Reid. The fact that Reid had leased to Feazel was not mentioned between the parties on April 21. Indeed; there was. no reason why it should have been mentioned, because Meyers and Green were, both aware. of that fact.

Meyers, as a witness, stated that the reason he finally accepted the lease and paid the consideration on April 21 was that he had been advised by his attorney that the contract which he had taken on February 29 and recorded on March 28 would rank Feazel’s lease by reason of the fact that it bore an anterior date. There was therefore no fraud or deception. Plaintiff’s agents acted with full knowledge of all the facts.

It seems to be conceded on both sides that plaintiff’s title to the mineral rights which he purchased from Reid is good. As that point is not before us, we pass it without comment. The burden of plaintiff’s complaint in this suit is that Reid fraudulently sold .him a mineral lease on land which he had previously leased to another and thereby caused him loss and damage.

If plaintiff had brought suit to recover the price paid for the lease under iteid’s warranty of the title, another question entirely would have been presented. Whether plaintiff can recover on that ground or not, under the circumstances disclosed, is a question 'not before us, and we pass it also without comment, or the expression of an opinion. We think, however, we should reserve his rights to bring siich an action if he sees fit to do so.

The judgment of the District Court, which- rejected plaintiff’s - demands, is affirmed, -reserving, however, his right to bring an action in warranty. Costs to be paid- by plaintiff.


text:
    No. 2779
    Second Circuit
    SLACK v. COFFEY
    (February 24, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Possession—Par. 6, 7; Petitory and Possessory Action— Par. 59; Reconvention — Par. 17.
    The filing of a reconventional demand showing that the defendant, the plaintiff in reconvention, had possession of a strip of land but was disturbed in that possession less than a year previous is, in effect, a possessory' action and constitutes notice to the plaintiff that defendant’s possession was not lost but disturbed.
    2. Louisiana Digest — Possession—Par. 6, 8.
    Possession obtained in contravention of a prohibitory law, namely Article 838 of the Civil Code, providing the method of fixing boundaries, produces no effect as against the adjoining land owner.
    3. Louisiana Digest — Injunction—Par. 18, 22.
    Under Article 298, Clause 5, of the Code, of Practice, where plaintiff’s legal possession of real estate has been disturbed but not lost,' an injunction will properly issue.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Mrs. Elve M. Slack against Dr. E. W. Coffey.
    There was judgment for plaintiff and defendant appealed.

      Judgment affirmed.
    Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellee.
    Looney & Logan, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This is an injunction suit in which plaintiff seeks to restrain defendant from removing a fence between adjacent lots owned by them respectively and taking possession of a strip of ground, the ownership of which is in dispute.

There was judgment in the District Court in favor of plaintiff and defendant appealed.

OPINION

Plaintiff and defendant own adjoining lots in the city of Shreveport. The tract of land of which these lots are a part was formerly owned by the late Judge Jack and Mr. Galloway. They platted the property, laid it off into city lots and sold the lots. This was done, we gather ' from the record, more than twenty years ago.

Soon after the property was subdivided into lots, there was erected a fence on what was understood to be the line between the lot now owned by Mrs. Slack, the plaintiff, and the lot owned by the defendant, Dr. Coffey.

The respective properties now owned by plaintiff and defendant changed hands a number of times, but. the fenc.e originally erected stood and was accepted by the adjacent proprietors as the dividing line between the two lots until July 1, 1924, more than twenty years. On that - date, Dr. Coffey, defendant, not being- satisfied with the. location of the line as marked" by the fence, without obtaining the consent . of his. adjacent próprietor, Mrs. Slack, and without having the line established as the Code provides, demolished the old fence and erected a new one on what he conceived to be the correct line.

There -is some dispute as to whether he merely removed the old fence or whether he erected a new one, but we think that does not matter. The line which he established and on which he rebuilt the fence is from eighteen inches to two and one-half feet from the line where the old fence stood and is over on the property owned by plaintiff, if the line on which the old fence stood is the correct one, as claimed by plaintiff.

In other words, Dr. Coffey, the defendant, by establishing a new line and building a fence thereon added to his lot and took possession of a strip of ground extending from the front to the rear of the property, which strip of ground plaintiff claims belongs to her and which does belong to her if the old fence marked the correct boundary line.

The fence was removed by Dr. Coffey on July 1, 1924.

In the month of January, 1925, there being a dispute and more or less disturbance over the location of the line, Dr. Coffey brought suit against- the adjacent proprietor in which he alleged that the boundary line between the lots had never theretofore been judicially established or fixed and that there were no ancient or other reliable signs, posts, stobs or other boundary marks to fix or indicate the same, and he prayed that experts be appointed in due course to fix the boundary line and report their findings to the court and that after all legal delays and due proceedings had there he judgment fixing and establishing the proper boundary.

That suit was promptly answered by Mrs. Slack, the defendant (plaintiff in this suit), and by her warrantors, in which answer they set up that Dr. Coffey had arbitrarily removed the old fence which was erected on the line established by mutual understanding and agreement by the original proprietors, and that in doing so he had trespassed upon and had unlawfully taken possession of their property, and they prayed that the plaintiff be required to remove the fence back to the original line which, they alleged, is the true one, and that Mrs. Slack be restored to possession of her property.

The suit, while filed in January, 1925, was not called for trial until March, 1925, and then, according to a statement in counsel’s brief, upon motion of defendant.

The trial of that suit resulted in its dismissal as in case of non-suit on May 5, 1926. No appeal was taken by Dr. Coffey, the plaintiff.

Immediately following the dismissal of that suit, Mrs. Slack, the defendant there, plaintiff here, proceeded, over Dr. Coffey’s objection, to remove the fence back to the original line; whereupon Dr. Coffey threatened and was about to begin tearing the fence down and removing it back to where he had put it on July 1, 1924.

Mrs. Slack then brought the present suit to restrain Dr. Coffey from again removing the fence and repossessing the striip of ground which she claims belongs to her.

A temporary restraining order was issued by the court and, upon hearing, was perpetuated. Dr. Coffey, the defendant, appealed.

The suit is defended by Dr. Coffey upon the sole ground that he had been in possession of the fence and ground for more than a year prior to the institution of this suit; and he urges that if plaintiff prevails in her suit the effect of the judgment will be to oust him of that possession by means of an injunction, which course is not sanctioned by the law.

While the removal of the fence has been much spoken of in connection with the suit, the real controversy between the parties is over the possession of the strip of ground above described.

Article 298 of the Code of Practice (provides that an injunction may be granted (Clause 5):

"When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment.”

Unless, therefore, the plaintiff in tlrs suit has been in possession of the strip of land in controversy for more than one year, she cannot maintain her action.

She claims fhat she has had such possession, and defendant contends that she has not but that, on the contrary, he, himself, has possession thereof, which possession dates back to July 1, 1924, when he removed the fence, or more than a year.

So that the case hinges on the question as to who had possession of the land when this suit was filed.

It is undisputed that plaintiff and her authors in title were in possession of the ground on July 1, 1924, and had heen in possession thereof for something like twenty years, and that their right of possession had never been questioned u,p to that time. On the contrary, neither Dr. Coffey nor his authors in title ever had possession until July 1, 1924. In obtaining such possession as he now claims, Dr. Coffey, without authority and without legal sanction, tore down and removed the old fence, which was a landmark designating the boundary between his property and that of plaintiff, and took possession of the strip of ground in controversy. His possession was obtained in contravention of a prohibitory law, for Article 836 of the Civil Code reads:

“It is forbidden to every owner of lands to fix the limits between him and his adjoining neighbors, without giving them notice to be-present; and, without this formality, every such proceeding is null, and will produce no effect against his neighbors, who, besides, have their action for damages against him, if they have suffered any injury thereby.”

The removal of the fence by Dr. Coffey in 1924 in the manner which it Was done produced no effect as against the plaintiff.

But it is claimed on behalf of Dr. Coffey that in removing the fence he took possession not only of the fence but of the strip of ground as well, that he held possession for more than a year previous to the bringing of this suit, and that whether his possession was in good or bad faith it was such as to entitle him to his, defense in this suit.

But let us see if Dr. Coffey had possession for more than a year previous to the date on which the present suit was brought. If he had possession for that length of time it was because plaintiff lost it for that time, for plaintiff was unquestionably in possession up to July 1, 1924. On that date Dr. Coffey took physical possession of the property, thereby disturbing plaintiff. Under the law he was a usurper and a possessor in bad faith. He doubted the validity of his title, as is shown by the fact that he brought suit in January following to have the boundary line judicially established. But, whether a possessor in good or bad faith, the fa,ct is that he did take possession.

But Mrs. Slack did not lose possession on account of Dr. Coffey’s illegal act. She was only disturbed in her possession. To be disturbed in possession is one thing; tq lose it is quite another matter. One loses possession of real estate—

“if he leaves the person evicting him in possession for one year, Without complaint.”

Civil Code, Article 3456.

We find that Mrs. Slack registered most emphatically in less than one year a complaint against Dr. Coffey’s disturbance of her possession. When he filed his suit to have the boundary between the properties judicially established, she promptly answered the suit, setting out specifically that Dr. Coffey had arbitrarily taken possession of her property without warrant, that he was a trespasser, and she asked that he be ordered to restore her possession. Her answer was filed on February 7, 1925, or seven months and seven days from the date on which Dr. Coffey disturbed her. That complaint, registered in a judicial proceeding in which Dr. Coffey had made her a party defendant, was sufficient to prevent a loss of possession by Mrs. Slack. He had specific notice that she was 'protesting his right of possession.

Having been disturbed in her possession, Mrs. Slack could, within one year from the date of the disturbance, ha,ve brought a possessory action in order to be maintained in or restored to the possession.

Code of Practice, Articles 46 and 49.

If she had brought such a suit, whatever rights Dr. Coffey had to possess the property would have been suspended from the date on which the suit was served until the litigation terminated. If that were not the law, a defendant in a possessory action could hold possession during the pendency of the. suit until the expiration of one year from the date of the disturbance and then defend on the ground that he had possessed for more than a year and thereby defeat plaintiff’s action!

Mrs. Slack did not bring a possessory action against Dr. Coffey; but when he brought a • suit against her involving this property, she answered, challenging his right of possession, and reconvened asking for judgment against him ordering him to restore to her the 'possession which she had. Her right to reconvene and make such demand in' that case was not questioned by Dr. Coffey. Her reconventional demand was to all intents and purposes a possessory action. She alleged, in substance at least, in her answer and reconventional demand, that she had actual possession of the property at the time of the disturbance, that she had possessed quietly, and without interruption for more than ten. years,: that she had suffered ' a real disturbance, and that the disturbance took place on July 1, 1924, less than one year previous to the date on which she made the demand in reconvention. Her reconventional demand was not served, it is true, but she did not have to make service upon him to bring him into court; he was already there. The filing of the answer and demand was sufficient notice to him.

Driggs vs. Morgan, 10 Rob. 119.

Plaintiff in this suit has not lost possession of the property in controversy. She has only been disturbed.

Defendant relies solely upon the proposition that he had possessed the property for more than a year previous to the bringing of this action. His defense is without merit.

For the reasons assigned, the judgment of the District Court is affirmed, with costs.


text:
    No. 2221
    Second Circuit
    ACHEE v. WILLIAMS
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1: Louisiana Digest — Bills and Notes— Par. 198. •
    Where suit is brought against the maker of a promissory note to enforce its payment, the defendant has no interest to contest plaintiff’s ownership or his right .to sue thereon unless it is attempted by fictitious endorsement or assignment to deprive him of some substantial ground of defense against the original or true owner thereof.
    2. Louisiana Digest — Bills and Notes— Par. 127.
    ‘A note made payable to. the maker’s own order is not complete as a negotiable instrument until endorsed by the maker, but where such note is delivered by the maker to his creditor as evidencing a valid and binding obligation and is by the creditor endorsed and transferred to a third person for value, such third holder may enforce the payment of the note against the maker.
    ■3. Louisiana Digest — Mortgages—Par. 51; Vide Chattel Mortgages.
    Where a chattel mortgage is given to secure a note, the mortgage and the note must be read and construed together.
    4. Louisiana Digest — Mortgages—Par. 52; Bills and Notes — Par. 95, 128.
    The note was payable to the maker’s own order, not endorsed by him, but delivered to his creditor as per agreement, and the chattel mortgage given to Secure the same recited that the note was endorsed; held, that the failure of the maker to endorse the note under all the circumstances disclosed was an oversight.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by B. B. Achee against W. B. ■ Williams.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. P. Garrott, Alex F. Smith, of Shreveport, attorneys for plaintiff, appellee.. .
    Wallace, Lyons & Wallace, of' Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note given by defendant in part payment of the purchase price of a Nash automobile; the note being secured by chattel mortgage on the car.

Plaintiff alleges that he is the holder and owner of the note in due course and before maturity; that said note is made payable to the order of the maker, Williams, and was intended to be endorsed in blank by him, as is stipulated in the act of chattel mortgage, but that through error said note was delivered to the Commerce Motor Company, Inc., from which the car was purchased, without being endorsed, but' was delivered by the maker with intent on his part that he should be bound to any future holder or owner of the note.

In answer, defendant admitted the execution of the note and mortgage, as alleged by plaintiff, but denied that he is indebted to plaintiff in any sum, and sets up the following defenses:

First, that plaintiff is not the holder and owner of the note.

Second, that said note is .null .and void in the hands of plaintiff, for the reason that the same was made payable to his order and was not endorsed by him, and that the note sued on is not complete.

Third, that said note was not and was never intended to be a negotiable ' instrument.

Fourth, that plaintiff cannot recover under his suit, because there is no allegation that the note was endorsed.

Fifth, that he had an agreement with the Commerce Motor Company, Inc., from which he purchased the car, that he was to pay said note with fees earned as notary for said company and was not to be called on to make any payments beyond the fees so earned.

The trial of the case resulted in a judgment in favor of the plaintiff for the full amount of the note, interest and attorney’s fees, less a credit of $247.00, amount of notarial fees actually earned by defendant, and a credit of $79.10, which represents an account due by the Commerce Motor Company, Inc., to Dickson & Denny, which was assigned by the latter to defendant.

The defendant appealed.

OPINION

The record in this case is not complete. The note and. the chattel mortgage alleged upon and the interrogatories propounded to Mr. Barre are all missing. However, as neither side has urged any objection on that score, we shall decide the case upon the record before us, such as it is.

The undisputed facts are that about May 10, 1923, the Commerce Motor Company, Inc., sqld to defendant, Williams, a new Nash automobile at an agreed price of $1642.00 and took, as part payment, a Buick car, then owned by defendant, at the price qf $550.00, leaving a balance due of $1092.00, for which defendant executed the promissory note sued on, payable in monthly installments of $91.00, said note being made payable to maker’s order; that in order to secure the payment of said note the defendant executed a chattel mortgage on the Nash car with the stipulation (copied from plaintiff’s brief):

“For the balance, to-w'it: the sum of $1092.00, the purchaser has made and subscribed said purchaser’s one certain promissory note dated with this act, payable at the office of the Commercial Investment Trust Company, Inc., to the purchaser’s own order and by the purchaser endorsed in blank, said note having been paraphed ‘Ne Varietur’ by me, Notary, to identify same herewith and delivery to the vendo” who acknowledges receipt thereof.”

And further admitted that while the note was made payable to maker’s order it was never endorsed by him; and the defendant further admits that the noté has not been paid in full.

Taking up the defenses in the order named above, we find that the first is without merit. The note was delivered to the Commerce Motor Company, Inc., the concern from which he purchased the car. It was endorsed by that company and in turn delivered to the Commercial Investment Trust Company, Inc., and by that company to the Employers’ Liability Assurance Corporation, Limited, which owned the note sued on. The owner of the note delivered it to B. E. Achee, its employee, with instructions to bring suit. The said company filed an intervention in this suit and made itself a party for the purpose of being bound by any judgment the court might render.

The defendant has no interest to contest plaintiff’s ownership of or his right to sue on the note, unless it be attempted, by fictitious endorsement or assignment, to deprive him of some substantial ground of defense which he may have against the true owner.

See authorities cited in Louisiana Digest, Volume 1, under the heading of “Bills and Notes”, Sections 198 and 202, pages 981 and 983.

This special defense was no doubt set up in order that defendant might offer evidence to the effect that it was agreed at the time the note was signed and delivered to the vendor of the car that no payment was ever to be made on the note except the amounts which he earned as notary for the Commerce Motor Company, Inc. The district judge permitted him to testify as to that agreement and held, we think correctly, that defendant under the circumstances was entitled to plead all defenses against the plaintiff that he would have been entitled to plead against the original holder and owner of the note; for the testimony shows that the plaintiff acquired the note sued on after maturity.

So that defendant has not been deprived of any of his defenses and can suffer no injury. The judgment rendered will be res judicata as between him and all parties through whose hands the note went.

The second, third and fourth defenses are likewise without merit.

It is true that the note was made payable to the maker’s order but not endorsed by him.

But admittedly there was a valuable consideration given for thj. note. In consideration of the said note and a used car defendant received a new Nash car worth $1642.00, which he now has. He admits that he has. not paid, except in part, the amount evidenced by the note.

There was also a delivery of the note by the defendant to his creditor and by said creditor to plaintiff.

But defendant failed to endorse the note, and for that reason alone he says it is null and void in the hands of plaintiff.

Section 184 of the Negotiable Instruments Law (Act 64 of 1904) provides that:

“Where a note is drawn to the maker’s own order, it is not complete until endorsed by him.”

It was so held in Continental Bank & Trust Co. vs. Baker, 132 La. 544, 61 South. 575, and Hibernia Bank & Trust Co. vs. Dresser, 132 La. 532, 61 South. 561.

While it is true that a note made payable to the maker’s order is not complete as a negotiable instrument in .the hands of a third person without the maker’s endorsement, such a note is not a nullity but is good in equiity against the maker where it is shown that the note was given for a valuable consideration and was delivered by the maker to his creditor in accordance with the terms of the contract in connection with which the note was executed.

Such a note is not a negotiable instrument until endorsed by the maker, but the maker may transfer it in such manner as to make it enforceable against him i-n the hands of a transferee for value.

A person may become the owner of a promissory note otherwise than by endorsement. t

The defendant in this case executed the note for the unpaid part of the price of the car and the vendor accepted the. note as evidence of the debt. It became the owner of the note upon its delivery by the maker. It then endorsed the note and transferred it to the plaintiff for value. Whatever title it had to the note passed to the present holder. The obligation of the defendant to pay the note sued on is' not disputed. Nor- does the defendant deny that the Commerce Motor Company, Inc., from which he purchased the car, owned the note.

Not only that, but defendant knew that the vendor of the car intended to. transfer the note to the present holder, as is shown by the fact that the first note executed was sent by the vendor of the car to a finance Corporation in New Orleans and was re-' turned for the reason that said corporation did not handle notes given in payment for any except light cars. When the note was returned, defendant was informed of that fact and was asked to execute another note and mortgage on forms required by the present holder of the note. He readily consented and executed the present note and mortgage securing it, delivered the note and mortgage to the vendor of the car, and the first note was returned to him.

While the note was never endorsed by defendant, we are satisfied that his failure to endorse it was an oversight; Contemporaneously with the execution of the note the defendant executed and signed before a notary an act mortgaging the car to secure the payment of the note, which act of mortgage recites that the note described therein is 'made payable to the maker’s own order -and by him • endorsed in blank. -

The note is tied to the- mortgage by the paraph of the notary. The note and mortgage are to be read and construed together . as one act. '

In the case of Pineland Realty Co. vs. Clements, 149 La. 274, 88 South. 818, the court quoted approvingly from 8 Corpus Juris, page 196, Section 327, as follows:

“It is elemental that when separate writings are executed between the same parties, at the same time, in the course and as parts of the same transaction, and intended to accomplish the same general object, they are to be construed as one and the same instrument. In accordance with this principal, notes and contemporaneous written agreements, -executed as part of the same transaction, will be construed together as forming one contract in a controversy between the original parties to the instrument, or persons standing in their situations or chargeable with notice of the contemporary instruments.’’

The holding of the court in the cited case is conclusive on the point at issue in this case.

We quote from the body of the opinion as follows, to-wit:

“Another sufficient reason why the exception should have been overruled is that plaintiff, having alleged that it is the holder and owner of the notes sued on, may sustain that allegation by proof, if allowed the opportunity, notwithstanding that the notes are made payable to the order of plaintiff and are not by him en-' dorsed, for one may become the holder and owner of a note in that condition otherwise than by endorsement. Thus' if’ one is given a' note so drawn by the maker and payee, and gives value in return, the fact that the maker, a,s payee, had ■ failed to endorse it would be no defense against a suit thereon, for -the law-will sometimes presume that to have, been done which should have been done; and in this instance there is a ■ contemperaneous written contract from which, it appears that plaintiff acquired the notes in question .as part of the purchase price of certain stock, and that they are described therein as drawn by him (Alfred H. Clement) to his own order, and ‘by him endorsed’. For the purpose of the exception, therefore, the situation is the same as though the notes were endorsed as the contract declares them to have been.”

The fifth and last contention of defendant is that he was not to pay anything on the note except what he earned as notary in passing acts of chattel mortgage for the Commerce Motor Company, Inc.

Without discussing the testimony on that point in detail, our conclusion is that this defense falls for lack of proof.

He earned while acting as notary up to the date the Commerce Motor Company, Inc., the vendor of the car, became insolvent, the sum of $247.00, which the District Court allowed as a credit on the note. The court also allowed a credit of $79.10 for a claim which defendant had acquired from Dickson & Denny. These were just claims against the original owner of the note and were properly allowed by the District Court.

Counsel for plaintiff complains at. the ruling of the court ih that respect.

More than one reason might be assigned for our refusal to grant plaintiff relief from the court’s ruling on that point, but one is sufficient. Plaintiff did not appeal from the judgment rendered nor has he moved in this court for an amendment thereof.

For the reasons assigned, the judgment appealed from is affirmed with costs.


text:
    No. 2731
    Second Circuit
    DUPUY v. ADAMS
    (February 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, namely, negligence and the quantum of damages, being clearly correct, is affirmed.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. D. B. Samuel, Judge. •
    Action by Joe D. Dupuy against G. M. Adams.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This suit grows out of an automobile collision which took place at the intersection of Gilbert and Columbia streets in the city of Shreveport. Both cars were damaged.

Alleging that the driver of defendant’s car was grossly negligent, plaintiff claims $300.00 damages.

Defendant, alleging gross negligence on the part of plaintiff in the operation of his car, denied liability and reconvened for $300.00; $125.00 damage to his car and $175.00 injury to his minor daughter who was driving the car.

The lower court decided for plaintiff and awarded 'him $163.25.

Defendant appealed.

OPINION

Only questions of fact are involved.

Plaintiff alleged and swore that he was driving at a moderate rate of speed — about fifteen miles per hour — going east on Columbia street; that upqn his entering into the intersection of Columbia with Gilbert street he saw defendant’s car, driven by defendant’s daughter, approaching rapidly from the north down Gilbert street; that he Was on the right-hand side of the street; that he entered the intersection first; and that after he passed the center line of the intersection about six feet, Miss Adams, driver of defendant’s car, veered to the left and struck his car, knocking it some twenty feet over on the curb on the southeast corner of the intersection.

His testimony as to the speed at which he was driving is corroborated by that of Mr. Logan, who was riding on the seat with him, although Mr. Logan could not say positively as to the exact speed.

His testimony as to where and how defendant’s car hit his is corroborated by that of Mr. Logan and other witnesses.

According to defendant’s theory, plaint'ff was driving at , a very rapid rate— twenty to thirty miles an hour — was on the wrong side of the street and was intoxicated. The testimony as a whole does not support either point. The physical facts show that plaintiff was driving on the proper side of the street. Mr. Todd and Mr. O’Neal testify that they smelled liquor on, defendant’s breath and that he acted as though he was intoxicated. Other witnesses, among them Mr. Logan, who was a passenger for hire on plaintiff’s car and who sat on 'the seat with him, and one witness who said he would not agree to be a witness for plaintiff until plaintiff convinced him he was sober, and others, said plaintiff was nqt drunk.

So far as the testimony discloses, there is no ordinance making either street at that point a “right-of-way street”.

Plaintiff, according to a (preponderance of the evidence, entered the intersection first, and, therefore, had the right of way.

Johnston vs. Worley, 3 La. App. 675.

Spainhour vs. Dulaney, 5 La. App. 429.

There is evidence that Miss Adams was running at a rapid rate of speed, and that is borne out by the fact that her car ran against that o'f plaintiff and shoved it some twenty feet and landed it over on the curb.

While the testimony is conflicting and in many respects not very clear, there is ample' testimony to support the finding of the lower court, both as to the question of negligence and as to the quantum of damages.

We cannot say that the judgment is manifestly erroneous. It is therefore affirmed, with costs.


text:
    No. 2189
    Second Circuit
    ROBERTS v. COFFEE
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — -Evidence—Par. 53 60, 344, 351.
    Where the testimony of plaintiff on the one material point at issue is uncorroborated and is contradicted throughout 'by 'defendant, and where the veracity of neither is challenged, pla’ - tiff’s demand will be rejectee! under the rule that the burden is upon him to make out his case by a fair preponderance of evidence.
    2. Louisiana Digest — Evidence—Par. 340 . 344.
    Where the testimony of plaintiff, who testifies positively as to certain facts but is uncorroborated and the testimony of defendant is to the contrary but is corroborated by circumstances, plaintiff cannot recover.
    3. Louisiana Digest — Appeal—Par. 625,630.
    While the opinion of the trial court on questions of fact has great weight with an appellate court, it will be reversed when manifestly erroneous.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. Robert Roberts, Jr., Judge.
    Action by A. D. Roberts against A. L. Coffee.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and suit dismissed'.
    Drew & Drew, of Minden, attorneys for ■plaintiff, appellee.
    Stewart & Stewart, of Minden, attorneys for defendant, appellant.
   ODOM, J.

This is a suit to recover $665.20, alleged to be due plaintiff by defendant for twenty-six cords of “heading blocks” sold' and delivered on the Y. S. & P. Ry. Co.’s tracks at Willis Spur.

There was judgment in the lower court for plaintiff, and defendant appealed.

OPINION

Only questions of fact are involved.

For a number of years prior to December, 1920, plaintiff was engaged in .getting out timber and hauling it to the railroad to be sold. For a portion of the time at least the timber or “heading blocks” which plaintiff delivered on the railroad right-of-way was sold to the defendant, Coffee. Coffee contends that in all his dealings with plaintiff he was acting only as agent for the H. D. Alfrey Company, of Shreveport, which company furnished the money, and that he, Coffee, took up the timber or bolts and páid for them with his check drawn on the funds which had been furnished by Alfrey.

While there is considerable testimony on the point' whether Coffee bought as agent for Alfrey & Company or whether he purchased for himself, we think' that is not material, for the case hinges upon another point.

Whether Coffee was acting for himself or for another, unless the plaintiff established the contract on which he sues he cannot recover.

As we have reached the conclusion that plaintiff has failed to prove his contract, no other point need be considered.

The plaintiff, as stated, was engaged in putting “heading blocks” on the railroad, which blocks were usually sold either to Coffee for his own account, or to Alfrey & Company through Coffee as agent.

Bills of lading introduced in evidence show that plaintiff shipped to Alfrey at Shreveport eleven carloads of “heading blocks” in the months of August, September and October, 1920; but the testimony shows that in the month of October Coffee notified plaintiff that Alfrey could take no more of the blocks on account of financial embarrassment.

Plaintiff admits this, and admits that whatever arrangements he had had with Coffee individually or as agent theretofore were put to an end in October, 1920. All blocks delivered up to that time were paid for.

But Roberts, the plaintiff, contends that later, about December of that year, Mr. Coffee agreed to purchase the particular lot of blocks over which this controversy arose. In other words, that a new contract was made, and it is on this new contract which he sues.

The blocks were delivered on the railroad by plaintiff and are there yet if they were not moved after the trial of this suit in February, 1924.

Plaintiff testified positively and unequivocally that Coffee agreed to purchase the blocks. Coffee, on the contrary, swore just as positively and emphatically that he did not agree to purchase them. The testimony of these two witnesses, the parties to the suit, is as contradictory and conflicting as could (possibly be.

If there were no other testimony in the record, we might be in some doubt as to whether there was a, contract, in which event the doubt would have to be resolved against the plaintiff, for he carried the burden of making out his case at least by a preponderance of the testimony.

The testimony of the plaintiff as to the contract is unsupported. On the contrary, it is materially weakened by the fact that after these bolts were placed on the railroad and refused by the defendant, plaintiff tried to sell them to another concern. He was asked while on the witness stand if he did not go to Mr. Spivey and offer to sell them these “heading bolts” and he said;

“Mr. Coffee asked me to go to Horton — • they had a mill there. He said if I would go there I might get shut of it. In place of going to the mill, I saw Mr. Spivey and asked him to see about it.”

But he said he was doing that under Coffee’s instructions.

Coffee denies that.

It is not probable, we think, that plaintiff would have gone to another party to sell the bolts if he in fact had sold them to Coffee.

In this connection, Mr. Spivey testified that plaintiff went to him some time between January 1 and April 21 and asked him about buying the timber; and, asked what plaintiff said about it, Spivey said:

“Well, he just asked me if the Hope Heading Company could not handle it for him.”

Plaintiff did not tell Spivey that he had gotten the holts out for Coffee. Coffee testified that plaintiff spoke to him about getting out the bolts and that he told him that Alfrey & Company could not take them and that if he, plaintiff, put out any more they would be at his own risk.

Defendant’s testimony on that point is corroborated by that of Albert Owens who also sold bolts to Alfrey. He says that Coffee told him that Alfrey would take no more bolts, and that he had a conversation with plaintiff about the matter, and he was asked:

“Well, now, did not Mr. Roberts, tell you that he put this stuff out at his own risk,”

And he said he could not be positive as to just what Roberts told him, but stated:

“Now, we talked about putting out some stuff at our own risk.”

These circumstances weaken very materially the testimony of plaintiff and lend support to that of defendant. Then, too, the fact that all the bolts gotten out by plaintiff and others went to Alfrey and that Alfrey was in financial difficulties and could take no more, make it very improbable that Coffee, the defendant, would have purchased these from plaintiff when he had no use and no market for them.

Appellate courts attach weight to the findings of trial courts on questions of fact, and unless their judgment based upon facts are manifestly erroneous they are usually affirmed. But where, as in this case, the lower court manifestly errs, such judgments are reversed.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and that plaintiff’s suit he dismissed at his cost in both courts.


author: WEBB, J. Per curiam;

text:
    No. 2275
    Second Circuit
    HOUSTON v. HIGHLAND OIL CO.
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)
    (March 1, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Mineral Rights' — Par. 11, 12.
    An oil lease which does not .contain any provision for failure to operate is not ipso facto cancelled by such failure, and, therefore, the lessor cannot have it cancelled by suit after the condition of failure to operate has ceased to exist.
    2. Louisiana Digest — Mineral Rights — Par. 11, 12.
    Where the evidence shows two wells had been drilled under an oil lease and no wells were drilled or drilling on adjoining property, the lease cannot be cancelled for failure of lessee to develop the property.
    3. Louisiana Digest — Mineral Rights — Par. 11, 12.
    Where there was an initial payment of $8000.00 for an oil lease and the royalties from the well drilled on the property were small and not a sufficient consideration for a continuance of the lease, the lease will be cancelled by the court.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by J. D. Houston, et ah, against Highland Oil Company.
    There was judgment for defendant and plaintiffs appealed.
    Judgment reversed.
    John B. Files, of Shreveport, attorney for plaintiff, appellant.
    R. G. Pleasant, Harry V. Booth, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiffs, Houston, et al., bring this action against defendant, the Highland Oil Company, to annul a ■mineral lease which was acquired by defendant on December 1, 1920.

The petition was filed on May 16, 1924, and the plaintiffs’ preliminary narrative alleges that the lease is null and void for, the following reasons:

(1) That it has lapsed by failure of the defendant company to properly and continuously develop and operate said lease.
(2) That it is void for lack of mutuality and for failure of consideration.
(3) That whatever operations may have been carried on were a mere pretense in order to prevent forfeiture of the lease and was not a development and operation in contemplation of the parties under the terms and conditions of said contract.

The defendant pleaded a general denial, and on trial, June 17, 1924, judgment was rendered in favor of defendant, rejecting plaintiffs’ demands, and they appeal.

OPINION

The lease was given in consideration of an, initial or down payment of eight thousand dollars, and it contained the usual stipulations, as that the lessor, grantor, leased, etc., the premises for the sole and only purpose of mining and operating for oil and gas, and provided that the lease should remain in force and effect for a period of three years and so long thereafter as oil or gas or either of them is produced from the land by the lessee; and it further provided that if no well be commenced on the property on or before the 4th of September, 1921, the lease shall terminate as to both parties, unless, on or before ‘that date, the lessee shall pay, etc., to the lessor the sum of twelve hundred dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months, and that like payments may be made and like extensions granted for the term of the lease; that in event the first well be a dry hole, then and in 'that event if a second well be not commenced on said land within twelve months from the expiration of the last rental period, which rental has been paid, the lease shall terminate as to both parties, unless the lessee on' or before the expiration of said twelve months shall resume the payment of rentals in the same amount and in the same manner as hereinbefore provided, and the resumption of payment of rentals shall have the same effect as hereinbefore provided.

The lease also stipulated it may be assigned in whole or in part and that the lessee shall have the right to remove machinery, casing, etc.

The Highland Oil Company entered into some arrangement with the ButlerMcMurray Drilling Co., under which the latter drilled two wells on the property and also attempted to bring back to production the old well which was on the premises and included in the lease, hut failed.

The wells which were drilled on the property (which was in the spring of 1921) were equipped and Butler-McMurray Company began operating and producing oil from the wells in December, 1921, for the benefit of itself and defendant, and continued such operations until February of 1923, at which time the property was turned over to Fagan & Grant, who operated the wells and ran the oil produced therefrom until some time in July, 1923, when they quit running the oil hut continued to pump the wells until January, 1924, when the property was returned to plaintiff and the Butler-McMurray Company who delivered to D. T. Barr, who was operating the wells and running the oil therefrom at the date of the trial on May 31, 1924.

The defendant received the royalties from the oil during the time it was operated by Butler-McMurray and Fagan & Grant until July, 1923, hut did not receive any royalties after such latter period as Fagan & Grant did not run the oil, hut plaintiff refused to accept the royalties from D. T. Barr, having notified him before he took possession of the property that the lease was dead.

The plaintiffs contend here that the lease should he annulled on the grounds that the lessor failed to produce oil in paying quantities and that they failed to-develop the property and operate the wells, and hs there is evidence in thf record tending to support these positions, and as defendant apparently concedes that all of such were covered by the pleadings, we shall consider the grounds urged, which we paraphrase as follows:

(1) That the lease should be cancelled for failure to operate.

(2) That the lease should he cancelled for failure to develop.

(3) That the wells which were drilled on the property in the spring of 1921 did not produce oil in paying quantities, and that as the defendant did not drill other wells or pay the rental on the 21st of September, 1922, the lease terminated on that date, or when they notified the defendant through D. T. Barr that the lease was dead.

The last two positions, we think, are based upon the assumption that oil was produced from the property in paying quantities-; and, necessarily, if it is held that oil was not produced in paying quantities the contentions that the lease was null for failure to develop or to- operate the wells would pass from the case; hut in view of these positions having been pressed by counsel we shall consider them.

I.

The evidence shows that the wells, were-not continuously operated in the sense; that they were continuously pumped after they were equipped, but it does not appear that the operations were at any time abandoned. One of the witnesses for plaintiff.' stated that the wells were not operated for more than three-fourths of the time, but it is not claimed by him that operations were abandoned; and it is shown that in the operation of oil wells it is often necessary to repair the machinery, which often causes delays; and, further, that in the operation of wells, producing small quantities of oil, it is not usual to continuously pump; and as it appears that the wells were continuously and properly operated after Barr was placed in charge and for three months before the suit was filed, we are of the opinion that the evidence does not show that the wells were not operated.

But conceding that the wells were not operated prior to the time Barr took charge, in the sense or in compliance with the implied obligation of the contract, and that plaintiff had complained prior to the time Barr took charge and that plaintiffs notified Barr that they would contest the validity of the lease, these circumstances would not give to the plaintiffs the right to demand the cancellation of the lease on the ground that the wells had not been operated when at the time of the suit the wells were being properly operated and had been so operated for several months prior to the suit.

The lease does not contain any provision for its forfeiture for failure to operate, and certainly it cannot be that the lease would be ipso facto cancelled, annulled or forfeited at the moment it was not properly operated. The right to claim a forfeiture on such grounds would, of course, .arise with condition; but the right would have to be exercised by suit, and if the plaintiff waited until the condition had ceased to exist, the plaintiff would have to rely on some other remedy than that of cancelling the lease; and hence we find that plaintiff has failed to establish the right to cancel the lease for failure to operate.

II.

We do not find any evidence in the record showing that there are any wells drilled or being drilled on adjoining properties which could drain the oil from the premises; neither is there any evidence which indicates the locations of the wells on the tract nor showing that the property has not been sufficiently developed by the two wells, and we cannot assume that such is not the casé; and, therefore, we find that plaintiffs have no right to cancel the lease for failure to develop.

III.

The evidence does not show what was the initial production of the wells, that is, when they were first pumped, nor what was the daily average production of the wells during the period from December, 1921, to January, 1924; but it does show that during this period the production did not pay the cost of operation and that the only time the production was in excess of the cost of operation prior to the suit was during the period the property was operated by Barr, at which time the wells were producing a daily average of ten or twelve barrels.

The evidence shows why Barr can operate the wells at a profit is the same as was the case in Caldwell vs. Alton Oil Co., 161 La. 139, 108 South. 314; and it also appears that the rental or royalties received by the plaintiff in the present case was about the same as in that case, and that the lease in the Caldwell case was practically identical with the lease presented here; and there is not, so far as we can see, any distinction which can be made between the case presented here and the Caldwell case which could be favorable to defendant, and we are of the opinion that under the ruling in the case cited the judgment should be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff have and recover judgment against defendant annulling and cancelling the lease given by J. C. Childs to the Highland Oil Company of date December 1, 1920, covering the S% of the SE^ of Section 34, Township 22 north, Range 15 west, in the parish of Caddo, State of Louisiana, as the same appears filed and recorded in the Recorder’s Office of Caddo parish, Louisiana.

It is further ordered, adjudged and decreed that defendant pay all costs of suit, and that defendant’s rights be reserved to remove machinery, etc., as provided under the lease.

ON APPLICATION FOR REHEARING

Per curiam;

Counsel for defendant, in -application for rehearing, contend that the court erred in ordering the cancellation of the lease involved after having held that there had been sufficient development by the lessee; and they strenuously urge that the case of Caldwell vs. Alton Oil Company, cited by this court as authority for its holding in the instant case, does not warrant the conclusion that the lease should be can-celled.

We ordered the lease in this case can-celled not because there had not been sufficient development but because the royalties received by the lessor from the well drilled on the property were not a sufficient consideration for a continuance of the lease.

The testimony shows that the lessor is receiving almost nothing, and in view of the fact that there was an initial or down payment of $8000.00 cash for the lease, we think the royalties which he has received are not a sufficient consideration for a continuance of the lease.

We think our holding is amply supported by the Caldwell vs. Alton case and by the cases therein cited.

Rehearing refused.


text:
    No. 2193
    Second Circuit
    DICKINSON MOTORS CO. v. SULLIVAN
    (April 8, 1927. Opinion and Decree.)

      (Syllabus t>y the Editor)

    1. Louisiana Digest — Marriage—Par. 172,' 173, 186, 249.
    The community property is liable for work done on an automobile belonging to the community at the instance of the wife with the full knowledge of the husband of her transaction to which he made no objection.
    2. Louisiana Digest — Marriage—Par. 204.
    After the dissolution of the community, debts contracted by the wife cannot bind the community property.
    3. Louisiana Digest — Marriage—Par. 177
    Work done on an automobile which was the separate property of the wife cannot be charged against the community property.
    Appeal from the City Court of Shreveport, Louisiana. Hon. David B. Samuels, Judge.
    Action by Dickinson Motors Company, Inc., against Mrs. J. J. Sullivan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Crain, Jackson & Johnston, of Shreveport, attorneys for plaintiff, appellee.
    Wallace, Lyons & Peters, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action the plaintiff, Dickinson Motors Company, Inc., a corporation which is engaged in the automobile business, proceeded by attachment to enforce an alleged indebtedness due by defendant, Mrs. J. J. Sullivan, an absentee, for repairs, accessories, etc., made and furnished defendant, and she appeals from a judgment rendered against her for the amount claimed and sustaining the attachment.

In the trial court defendant excepted that the petition failed to state a cause of action, and also moved to dissolve the attachment, and the exception and motion being overruled, she answered, denying any indebtedness and alleging that if any amount was due plaintiff for repairs it was due by her husband, G. W. Moody, to whom plaintiff was married when the repairs, etc., were made or furnished.

Defendant does not press either the exception or motion to dissolve in this court' but relies solely upon the defense set up in her answer.

The evidence shows that the defendant, Mrs. J. J. Sullivan, was formerly the wife of G. W. Moody and that they had their matrimonial domicile in the state during the time in- which the indebtedness was incurred; that Mrs. Moody was the owner of a Packard in her own right, and that during the time of her marriage to G. W. Moody and residence in this state she purchased a Cadillac car, and the bills presented relate to repairs, etc., presumably made and furnished for both the Packard and the Cadillac cars.

The evidence, does not show with any degree of certainty whether the repairs, etc., were at the instance of Mrs. Moody or her husband, G. W. Moody, but it appears that Mrs. Moody usually used the Packard car while her husband used the Cadillac car, and that during the course of the dealings between plaintiff and Mr. and Mrs. Moody, which had extended over a considerable period, that each of the latter parties had brought both of the cars to plaintiff’s place of business for repairs, etc., and that the bills were usually paid by Mrs. Moody.

The specific account sued upon is for one hundred and thirty-nine and 95-100 dollars, of which amount one hundred and twenty-five and 95-100 dollars was for repairs, etc., on. the Packard car, while the balance of fourteen dollars was for work, etc., on the Cadillac car, or services, accessories, etc., which is not shown to have been for either of the cars.

The evidence does not show what the financial circumstances of G. W. Moody or 'Mrs. Moody are, but it appears that soon afffer the account sued upon was made, Mr. and Mrs. Moody were divorced, and at the time of the present action Mrs. Moody was the wife of J. J. Sullivan, with whom she resided in the State of California.

The amount involved is small and the parties have not cited many authorities in support of their contentions but have rather considered the matter from general principles, and we shall discuss the question presented from a like point of view, and in thus considering the question' we will first consider the claim for work, etc., on the Cadillac car, and for other charges which do not affirmatively appear to have been for repairs, etc., on the Cadillac car.

From the statements of the evidence we think it clearly appears that the Cadillac car belonged to the community, and that the repairs, etc., on that car were for the benefit of the community, and that the husband, G. W. Moody, being the head and master of the community, was alone liable for the work, etc., on the Cadillac car, as well as for all other work, etc., (whether at his instance or of Mrs. Moody, it appearing he had full knowledge of her transactions and made no objection thereto), which may have been for the benefit of the community or were an incident of his obligation to support his wife, and in default of evidence to the contrary we presume that the work, etc., whether at the instance of the husband or wife inured to the benefit of the community, or were an incident to the affairs of the community and his obligations to his wife, and we thus eliminate the charges for those matters which amounted to fourteen dollars, for which' the wife was under the law as of the date of the account prohibited from binding herself to pay.

Passing to the balance of the claim, amounting to one hundred and twenty-five and 95-100 dollars, which was for work, etc., on the Packard car, which was the separate property of Mrs. Moody, we are of the opinion that the law did not prohibit her from binding herself to pay for the repairs, etc., on the Packard car, which was her separate property; (Dickinson, et al., vs. Reagan, 2 La. Ann. 440; Daily vs. Pierson, 5 La. Ann. 125; Patterson vs. Frazier, 8 La. Ann. 512; Succn. Penny, 14 La. Ann. 194); and that the course of her dealing with the plaintiff shows that she did so bind herself and that plaintiff looked to her for payment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce the amount allowed plaintiff to one hundred and twenty-five and 95-100 dollars, and, as thus amended, it is affirmed, plaintiff to pay the costs of the appeal.