author: HIGGINS, J.

text:
    No. 10,202
    Orleans
    AMOR v. DIAZ
    (April 5, 1930. Opinion and Decree.)
    Quintero & Ritter, of New Orleans, attorneys for plaintiff, appellant.
    Prowell, McBride & Ray, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff sues defendant for possession of a police dog, which he alleges belongs to him. The dog was seized under a writ of sequestration by the sheriff, and the defendant bonded the writ by furnishing a forthcoming bond for the sum of $500. The plaintiff then filed a supplemental petition reiterating his original demand that he be declared the owner of the dog, and, in the alternative, that he have a money judgment against the defendant for the sum of $700, which he alleges to be the value of the dog. The defendant filed a general denial.

On the trial of the merits, the court below dismissed the suit and plaintiff has appealed.

The record shows that some time about the middle of August, 1924, the plaintiff purchased a German police dog from a Mr. Baker in Chicago, 111., for the sum of $160. The plaintiff was renting an apartment on Prytania street, and, due to the fact that his housekeeper refused to attend to the dog, and the further fact that he did not have a proper place to keep it, he decided to sell the dog to the' defendant for the sum of $160, plus $40 express charges and maintenance of the dog, making a total of $200. On September 3, 1924, a written agreement was signed by the plaintiff and defendant whereby the plaintiff agreed to sell and deliver the police dog to the defendant for the sum of $200, $100 cash, the balance represented by a promissory noté for the sum of $100, payable on September 30, 1924.

Somewhere between the dates of September 7 and 10, 1924, plaintiff contends that he and the defendant verbally agreed to rescind the contract of sale and, accordingly, he returned the defendant the sum of $100, represented by his check for that sum, and also the note and contract of sale.

Defendant denies that there was any rescission of the contract of sale, and contends that the plaintiff insisted upon the defendant returning the dog, and, upon refusal of the defendant to do so, the plaintiff, in a fit of rage, threw the papers on a table in defendant’s home.

The case presents only a question of fact. The evidence is conflicting on this issue. Plaintiff and his employee testify that the defendant agreed to rescind the contract. Defendant and his wife testified that there never was any agreement effected to rescind the contract. Plaintiff produced one disinterested witness, Mr. Trelles, who testified that defendant stated to him that he was willing to return the dog provided the plaintiff would pay the original price of $200, plus certain other expenses incurred in connection with the dog. He further testified that defendant, while signifying a willingness to return the animal, never stated how much he wanted for it. However, plaintiff in his testimony insists that the agreement to rescind was for a consideration of $200, represented hy his check for $100 and the return of defendant’s note.

The burden of proving by a preponder anee of evidence that there was a meeting of the minds of the parties, resulting in a contract of rescission, was upon the plaintiff. The judge, a quo, rendered judgment in favor of the defendant on the theory that plaintiff had failed to bear the burden of proving his case with that certainty req,uired hy law. We find that the evidence preponderates in favor of the defendant.

The judgment appealed from will he affirmed, appellant to pay all costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 12,077
    Orleans
    WHITE v. SENS
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)

      M. C. Scharff, of New Orleans, attorney for plaintiff, appellee.
    Geo. Montgomery, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Defendant appeals from a judgment condemning him to pay to plaintiff the sum of $318 as damages for injuries sustained by plaintiff as a result of being bitten by a dog belonging to or in the possession of the defendant.

There is some dispute as to the ownership of the dog, but no question of its having been in the possession and control of the defendant. So far as the liability of the defendant is concerned, it is immaterial. Reneau vs. Brown et al., 9 La. App. 375, 119 So. 445.

The rule in this state is to the effect that the owner of a domestic animal is not in general liable for an injury committed by it unless it be shown that it has knowledge of its vicious propensity. Gillespie vs. Blaise, 3 La. App. 59. However, the slightest fault or negligence on the part of the owner of the animal is sufficient to impose liability for its misconduct. De Lisle vs. Bourriague, 105 La. 77, 29 So. 731, 54 L. R. A. 420.

The dog involved in this ease was of the species known as police dog which, according to some of the testimony in the record, is usually bad tempered and, at the par-, ticular time that the plaintiff was bitten, was nursing a litter of pups, a circumstance which is said to have aggravated its unpleasant disposition.

Defendant kept a small store and soft drink stand, and plaintiff, a customer, was bitten in the storeroom or the dining room of defendant which adjoined the store. The dog and puppies were kept in the dining room under the dinner table, and it is defendant’s contention that plaintiff was bitten in the dining room where she had no right to be. The evidence on this point is conflicting, but it is certain that the dog had access to the storeroom, and we are inclined to believe that the plaintiff was bitten in the store, as she had no occasion to go in the dining room.

One of plaintiff’s witnesses testified that she had been bitten by the dog prior to the biting of plaintiff. Defendant denies this and disclaims any knowledge of the vicious tendencies of the dog. He attributes plaintiff’s injury solely to the recent parentage of the dog and its mistaken belief that some danger threatened its offspring. This explanation of defendant involves an admission that the dog was unusually irritable at the time plaintiff was bitten, and convicts him of negligence in permitting the dog to roam about his store exposing prospective purchasers to the danger of being bitten.

Our conclusion is that the defendant is liable.

On the question of quantum the lower court allowed $318; $18 of this amount was for medical expenses, $200 for pain, shock, fright, etc., and $100 for loss of wages. We believe this award to be excessive. It does not appear that any serious injury resulted from the bite, and plaintiff was unemployed at the time. We think $218 sufficient.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by reducing the amount allowed plaintiff to $218, and as thus amended is affirmed.


text:
    No. 11,795
    Orleans
    LIVAUDAIS v. BLACK
    (March 24, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiffs, appellants.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit by the father and mother for the benefit of their minor daughter, age 18 years, to recover damages for personal injuries which she is alleged to have suffered while a passenger in the automobile of defendant on July 30, 1927. Defendant denied liability and pleaded contributory negligence. The jury rendered a verdict in favor of defendant, and judgment was entered dismissing the suit. Plaintiffs have appealed.

The petition alleges that on July 30, 1927, plaintiffs’ minor daughter was a passenger in the defendant’s automobile, and while proceeding up St. Charles avenue at 10:15 p. m. at a point between Philip and First streets, the automobile ran upon the neutral ground and struck a tree with great force causing serious and permanent injuries to the young lady. The general charge of negligence is that the defendant failed to keep a proper lookout and to carefully look where he was driving.

Defendant denied that he was guilty of negligence in failing to keep a proper lookout and watch where he was driving and alleged that from time to time he has suffered spells which have caused him to lose his sight temporarily, and that just before the accident he suddenly went blind, and therefore the accident was unavoidable. Defendant further pleaded contributory negligence on the following grounds:

First. That plaintiffs’ daughter had been informed by defendant that he was subject to blind spells, and that she was guilty of negligence in riding alone with him under the circumstances, and

Second. That plaintiffs’ daughter also knew that defendant had been drinking alcoholic liquor and did not protest against him drinking the liquor or driving the car, but was riding alone with the defendant with full knowledge of his condition at the time of the accident, and therefore was guilty of contributory negligence.

It is the contention of plaintiffs that this case falls in the category of the doctrine of res ipsa loquitur, and, plaintiffs having established the fact that their daughter was a passenger in the car, and that the accident occurred, that the burden of proving himself free from negligence was upon the defendant, and that defendant also bore the burden of proving by a preponderance of the evidence that plaintiffs’ daughter was guilty of contributory negligence. Plaintiffs further contend that, even if defendant did suddenly become blind, the record shows that he was at fault in contributing to and in bringing on this condition by indulging in drinking alcoholic liquor excessively; and that, in order to bar recovery on the ground of vis major, defendant must show that he was free from fault and negligence, and that the accident resulted entirely from means beyond his control.

Defendant admits that he would be liable even for a fortuitous event or an act of God if he were guilty of negligence which would be the proximate cause of the damage or injury; and further admits that the burden of proof is upon himself to prove himself free from fault and negligence, and that the ¡plaintiffs’ daughter was guilty of contributory negligence, but contends that the evidence establishes both of these defenses successfully; and that, as there is only a question of fact involved the verdict of the jury should not be disturbed unless manifestly erroneous.

The following authorities clearly show that this case falls within the doctrine qf res ipsa loquitur.

Lykiardopoulo vs. Railway Company, 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976;

Dotson vs. Louisiana Central Lumber Co., 144 La. 85, 80 So. 205, where plaintiff’s husband lost his life through a fire in defendant’s saw mill;

White vs. Maison Blanche Co., 142 La. 265, 76 So. 708;

Weikel vs. Caddo Transfer Co., 5 La. App. 146, where an automobile left the road and struck a telephone pole;

Stokes vs. Saltonstall, 13 Pet. 181, 10 L. Ed. 115, where a stage coach left the road and turned over and injured plaintiff, and quoted with approval in Sweeney vs. Erving, 228 U. S. 233, 33 S. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905, where plaintiff’s husband lost his life through a fire in defendant’s saw mill;

Rowland vs. Caddo Transfer Co., 5 La. App. 157, where an automobile left the road and struck a telephone pole.

The law is likewise clear to the effect that, although one is not responsible when damage is caused by an unforeseen accident, or an accident which he could not guard against, as when it arises from a vis major, he is responsible when he is chargeable with negligence and fault which is the proximate cause of the injury or damage. Fleischman Co. vs. Seeling, 9 La. App. 391, 119 So. 287; Patton vs. Pickles, 50 La. Ann. 857, 24 So. 290; Delisle vs. Bourriague, 105 La. 77, 29 So. 731, 54 L. R. A. 420; Hebert vs. Lake Charles Ice, Light & Waterworks Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; National Rice Milling Co. vs. New Orleans & N. E. R. Co. et al., 132 La. 615, 61 So. 708, Ann. Cas. 1914D, 1099; and Slater vs. Railway, 29 S. C. 96, 6 S. E. 936.

This court in the case of Holden vs. Toye Bros., 1 La. App. 521, in the syllabus said:

“A fortuitous event or act of God, the consequences of which could reasonably have been anticipated and averted by ordinary care and prudence will not relieve defendant from responsibility for the result of his negligence. Brannon v. Yazoo & Mississippi Valley Railroad Co., 129 La. 916, 57 So. 172.”

The law is also clear that, where the defendant pleads contributory negligence, the burden of establishing this special defense is upon the defendant. Cusimano vs. New Orleans Public Service, Inc. (La. Sup.) 126 So........., decided March 5, 1930. See, also, Le Blanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Spurlock vs. Traction Co., 118 La. 1, 42 So. 575; Hopkins vs. New Orleans Railway & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362.

Now it is clear, if the accident occurred solely as a result of the defendant suddenly going blind, due to defective vision brought on by systemic infection or organic disorder, without the alcoholic liquor, which the defendant had drunk in any way contributing to this condition, the plaintiffs could not recover, as the case would fall fairly in the category of vis major. If the accident resulted solely from the negligence and carelessness of the defendant in not keeping a proper lookout and observing where he was driving, whether he was drunk or sober would make no difference, and the plaintiffs would be entitled to recover, provided plaintiffs’ daughter was not guilty of contributory negligence. If the accident resulted from the defendant suddenly becoming blind as a result of drinking alcoholic liquor, which, he was advised by his doctors, would tend to produce such a condition, then the defendant would be at fault, and plaintiffs would be entitled to recover, provided their daughter was not guilty of contributory negligence in riding with the defendant when she knew or ought to have known ' that he had drunk enough intoxicating liquor to interfere with his prudent and careful driving of the automobile, or if she knew or should have known that the defendant was subject to blind spells which might be brought on as a result of drinking alcoholic stimulants.

The record shows that the defendant, a young man of twenty-five years of age, had been calling upon plaintiffs’ daughter, age 18 years, and had frequently taken her out for a period of about three months before the accident. She admits that she knew that defendant had suffered spells of blindness or blurred vision during the year 1924 and had read to him on several occasions when he called at her home because his eyes were weak, but both defendant and the young lady were of the opinion that he had been cured of these spells of temporary blindness.

On the evening in question three couples, including defendant and the daughter of plaintiffs, met at the home of a mutual friend where the defendant drank some cocktails and also drank apricot brandy which he had brought in a pint bottle with him. The party was then arranged, and at the suggestion of defendant they stopped at a road house on Jackson avenue in the city of New Orleans. This place consisted of two rooms 'which were separated by a curtain, one room being used as a restaurant and the other room as a saloon or soft drink stand. Each member of the party was served with two bottles . of beer, except Miss West, who did not drink any beer, and plaintiffs’ daughter, who drank only a half bottle of beer. It appears that the defendant drank two bottles of beer and frequently left the restaurant proper and went into the saloon. He also produced a drink of whisky which was offered to one of the young ladies which she refused to drink. All of the party then went out of the road house to the sidewalk, but defendant returned on the pretense of getting some cigarettes. He remained in the place so long that the other parties became impatient and sent one of the young men to bring him out. This young man found the defendant in the saloon proper and requested him to come out as the other parties were waiting for him. Defendant said all right that he would come out, but he did not do so. After waiting a while the plaintiffs’ daughter suggested that she would drive defendant’s car around the block, and that, if he were told that she was driving his car, he would come out, because he did not want anyone to drive his machine. Another young man in the party then went in after the defendant and found him in the saloon proper and told him about the young lady driving his car, and it was then that the defendant came out. Defendant then entered his car and drove it out Jackson avenue to St. Charles avenue, and thence up the avenue to the point where the accident occurred. Plaintiffs’ daughter was driving alone with the defendant, and the other couples were in another car. It appears that defendant was operating his car at a lawful rate of speed, but suddenly, at about the point where the accident occurred, the automobile left the roadway, ran upon the neutral ground, and struck 'a tree with great force, causing serious injuries to both defendant and plaintiffs’ daughter, who were immediately removed by the other couples in the other automobile to the Touro In-' firmary on Prytania street. Both the defendant and plaintiffs’ daughter were rendered unconscious by the impact and injuries they sustained, but defendant was revived just before he reached the hospital. He objected to going into the hospital, insisting that he was all right, and when in the hospital he cursed and abused the doctors who tried to administer to his injuries, insisting that he was not hurt and did not need any attention. He also talked in such a loud and boisterous manner that the doctors refused to permit defendant’s sister to go into the room where he was being treated.

Defendant introduced considerable evidence to show ’ that he had suffered from blind spells and blurred vision on three occasions during the year of 1924 for which he consulted doctors, and a slight blurred spell during the year of 1926, but for which he did not consult a physician. He thought that he had been cured of these spells, and obtained a driver’s license in accordance with the ordinance of the city of New Orleans, stating that his vision was not defective. In the final analysis to say whether or not the defendant went temporarily blind just before the accident, and that his blindness was the proximate cause of the accident, would require us to accept only the statement of the defendant that he suffered such a spell. But, conceding that the accident was not caused solely and only by defendant suddenly becoming blind through no fault of his own, and that the accident resulted either from the defendant suddenly becoming blind as a result of overindulgence in intoxicating liquor when he knew that taking such stimulants would cause or tend to cause the return of these spells, or that the accident occurred as a result of the negligence and carelessness of the defendant due to the fact that he operated the ear in a reckless and careless manner from too freely indulging in alcoholic liquor, we pass to a consideration of the defenses raised by the plea of contributory negligence.

The evidence shows that plaintiffs’ daughter is an intelligent and well-educated young lady of eighteen years of age. She had had enough experience in life to discern when one was sober or under the influence of liquor. She was old enough to fully appreciate the danger and risk of driving alone with a young man who had overindulged in intoxicating liquor. She admits that she had been told by the defendant that he had had these spells during the year of 1924, and that he had to be careful not to overstrain his eyes because she had read to him on several occasions when he called at her home. As a reasonably prudent person she knew or should have known that indulging in excessive drinking would tend to interfere with the defendant’s vision and might tend to cause the return of the blind or blurred spells. In any event, she knew or ought to have known that the defendant’s excessive drinking would at least make him negligent and careless in operating his automobile, and that he would not operate it as a prudent, careful, and sober person would do.

But counsel for plaintiffs contend that, at the time the young lady entered the automobile with the defendant, he did not appear to be intoxicated or under the influence of liquor to such an extent that it might tend to interfere with him in the proper and careful operation of his car. We are unable to agree with the learned counsel, because it appears that defendant had been drinking in the early afternoon; that he had gone home and went to bed; that he joined the party about . 9 o’clock and brought a pint bottle containing apricot brandy with him. In addition to this he drank some cocktails at the home of the mutual friend from where the party started; that when he went to the saloon or road house that he drank two bottles of beer and some whisky. His action in leaving the party in the restaurant and frequently going into the saloon proper and his conduct in leaving the party on the sidewalk and going back into the saloon and in having the two young men at separate times go into the saloon to get him, but only being successful after they used the ruse of having the plaintiffs’ daughter drive his car, was sufficient in our opinion to have placed her on her guard that the defendant was not sober. His actions appear to us to have been sufficient to indicate to any prudent person that the alcoholic stimulants that he had imbibed were having their effect upon him, otherwise he would not have been guilty of such strange conduct. He appears to have been a young man of education and refinement, and certainly he would not have done such an eccentric, discourteous, or unusual thing had he been entirely sober. It also seems clear that the plaintiffs’ daughter had a full and sufficient opportunity of observing the young man’s conduct, and had sufficient opportunity or chance to have been placed on her guard. After they were in the automobile defendant drove the car several blocks before the accident occurred, and she must have engaged defendant in conversation from the time they left the saloon until the time they reached St. Charles avenue. She testified that she did not protest against defendant driving the car or ask him to let her out of it. She, therefore, was guilty of contributory negligence in riding in an automobile alone with a driver whose conduct clearly indicated that he was under the influence of liquor before she entered his car. Jones v. Pacific Gas & Electric Co. (Cal. App.) 285 P. 709. We are further corroborated in this belief because of the unusual conduct of the defendant in refusing to go into the hospital where he was taken immediately after the accident and in abusing and cursing the doctors and refusing to permit them to administer treatment to him.

The plaintiffs in this case have had the benefit, and this court the assistance, of very able counsel. Their cause has been most skillfully and thoroughly presented in oral argument and in brief with the result that in determining the issue adversely to them we have the satisfaction of realizing that they have had their case presented to us in its most favorable aspect.

However, the evidence convinces us that the plaintiffs’ daughter was guilty of contributory negligence which bars plaintiffs’ recovery.

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


author: LeBLANC, J.

text:
    No. 554
    First Circuit
    RONALDSON v. MOSS & WATKINS, INC.
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)

      Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellant.
    McCoy, Moss & King, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

In this suit, the plaintiff seeks to recover fees for services rendered to the defendant as a certified public accountant. He presents two claims, the larger for $1,000 under an alleged contract by the terms of which he claims the defendant obligated itself to pay him such fee if it should be determined by arbitration that he had found substantial error in the audit of a firm of certified public accountants who had previously audited its books, and the smaller for the sum of $200, being on a quantum meruit for services performed in making a balance sheet audit of defendant’s books for the quarterly period ending December 31, 1926.

The defendant denies liability on both claims on the ground that the plaintiff is a certified public accountant residing in Beaumont, Tex., and not being registered as such in Louisiana as required under the provisions of Act 136 of 1924, he cannot recover for any service rendered here in the practice of his profession. Liability is further denied on the $200 claim for the reason that work for which that amount is claimed was not properly done. The defendant then reconvenes in a larger claim for damages and for the return of money paid to plaintiff for erroneous and worthless audits made by him of its business covering the years 1925 and 1926.

The district judge rendered judgment rejecting plaintiff’s claims on the ground that he was not licensed to practice his profession in Louisiana, and therefore could not recover for service performed under an agreement entered into in this state, and also rejecting defendant’s re-conventional demands holding that “no culpable malpractice” had been established and there was no evidence of damages in any measurable degree.

The plaintiff appealed from the judgment, and the defendant has answered the appeal asking that its demands in reconvention be allowed.

In 1908 the Legislature passed the first law regulating the practice of public accounting in this state. Act 125 of 1908. That law was entirely amended and reenacted by Act 136 of 1924, which placed the practice on a still higher plane of professional dignity and exacted still more rigid qualifications on the part of those desiring to enter it.

Among its various provisions, we find the following under section 5:

“The State Board of Certified Public Accountants of Louisiana, may, in its discretion, register the certificate of any Certified Public Accountant who is the lawful holder of a Certified Public Accountant’s certificate issued under the law of another State, and may issue to such Certified Public Accountant a certificate which shall entitle the holder to practice as such Certified Public Accountant and to use the abbreviation ‘C. P. A.’ in this State, provided that the State issuing the original certificate grants similar privileges to the Certified Public Accountants of this State.”
“It shall be unlawful for any holder of a certificate from another State to use the abbreviation ‘C. P. A.’ with or without any qualifying words or letters, unless he has his certificate registered in the manner herein provided. The fee for such registration shall not exceed Twenty-five ($25.00) dollars.”

Section 8 of the act makes it a misdemeanor for any person to represent himself to the public as having received the certificate required, or to assume the practice of public accounting or use the abbreviation “C. P. A.,” or any similar words or letters, without first having received the certificate of registration, and prescribes the penalty in case of conviction.

The record in this case, a rather voluminous one, is replete with expert testimony, much of it of a highly technical nature, which, if it served no other purpose, vindicates the judgment and wisdom of the Legislature in having recognized the practice of public accounting as a profession of skill and science and in having placed around it proper safeguards to maintain its dignity.

The Supreme Court of the state, in the case of State vs. De Verges, 153 La. 349, 95 So. 805, 806, 27 A. L. R. 1526, has given it this same recognition, when in passing on the constitutionality of the act of 1908 it uses these words:

“We think, therefore, that the Legislature, in the public interest and for the general welfare, unquestionably had and has the power to regulate the highly skilled and technical profession of public accounting in the measure which it did.”

The Legislature had before it a question of public interest, and in adopting this legislation declared what the policy of the state was in regard thereto.

In maintaining its rights to act on the question, the Supreme Court in the De Verges case, cited supra, makes this comment:

“It is true that neither morals, health, nor safety of any one is jeopardized by the practicing of this profession, however incompetent a person may be, but the power of the state in matters of this sort is not confined to professions involving such consequences. It may also act whenever the general welfare requires to protect the public in the skilled trades and professions against ignorance, incompetence, and fraud.”

With this law before us we come now to the paramount question presented in this case: Can a contract entered into by a certified public accountant not qualified under the provisions of the act be enforced in a civil action?

In approaching this question it might be stated that the bulk of the testimony has no bearing on it. The salient facts pertinent to that issue do not seem to be seriously disputed. The plaintiff is a resident of the state of Texas, and a registered certified public accountant in his state, and has never procured a certificate as such in this state. The contract he entered into with the defendant is a Louisiana contract, and he performed duties thereunder at Lake Charles in this state. Moreover, it appears that his service under this contract was not the only occasion on which he had practiced his profession in Louisiana. In his brief his counsel attempts to escape the force of the judicial declarations in his petition in which he styles himself as a certified public accountant and the services rendered as that of a certified public accountant, by contending that his actual work was as an accountant or auditor, and therefore he is not amenable to the harsh provisions of the statute. In that we cannot agree with the learned counsel, as his pleadings and the evidence make it plain that he assumed the role of a certified public accountant and in his correspondence and all his reports signed himself as “Certified Public Accountant,” or else used the abbreviated form “C. P. A.”

Those being the facts, it would seem there was a violation of the statute to the extent that plaintiff has incurred the criminal penalty. Has he, in addition, forfeited his right to recover because of having entered into an unlawful contract?

In considering the object and nature of contracts, the Civil Code prescribes:

“Art. 1891. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it.”
“Art. 1892. That is considered as morally impossible, which is forbidden by law. or contrary to morals. All contracts having such an object are void.”

In the following section, in considering the cause or consideration of contracts, we find article 1893 which provides that:

“An obligation without a cause, or with a false or unlawful cause, can have no effect.”
“Art. 1895. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order.”

The provisions of our Civil Code of themselves would seem to greatly affect the rights of the plaintiff under his contract.

The law of this state forbids him as a resident of another state to assume the very position he took and had to take to carry out his agreement with the defendant. Under a strict interpretation of article 1892, therefore, the agreement would be void.

Moreover, it will be recalled that the Supreme Court in the De Verges case, supra, intimated that in enacting the certified public accountant law, whilst not legislating in the interest of public morals, the Legislature was exercising its right to act for the general welfare, in.protecting the public against ignorance, incompetence, and fraud. In other words, it was acting in the interest of public order. An agreement in violation of the statute, entered into by the plaintiff, was in contravention of the public order, and therefore, under a strict interpretation of articles 1893 and 1895, its cause was unlawful and it could have no effect.

Aside from these provisions of our Civil Code, the principle of law here involved seems to have been well settled by the jurisprudence of the country.

Of course, where a statute by its terms renders void a contract entered into by one not qualified under its provisions, there can be no ground for discussion. An example of such statute in Louisiana is to be found in Act 236 of 1920, which regulates real estate brokerage. That law not only forbids the practice without having first obtained a license, but it specifically prohibits the collection of fees by those who have not complied with its provisions.

Where the law does not contain the prohibition but imposes a penalty for its violation, it seems to be generally held that the penalty implies the prohibition. The decisions to that effect are based on the well-known principle that “the law will not lend its support to a claim founded upon its violation.”

It would seem to be somewhat anomalous to have a court exercising criminal jurisdiction pronounce a man a criminal and inflict the penalty of the law on him, and then turn around and, sitting as a civil court, let that same man reap the benefit of the sa,me act for which it had just punished him.

In 13 Corpus Juris, p. 421, sec. 352, we read:

“Frequently a statute imposes a penalty on the doing of an act without either prohibiting it or expressly declaring it illegal or void. In cases of this kind the decisions of the Court are not in harmony. The generally announced rule is that an agreement founded on or for the doing of such penalized act is void. In accordance with the view of Lord Holt in an old case: Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, tho’ the statute itself does not mention that it shall be so, but only inflict a penalty on the offender, because a penalty implies a prohibition, tho’ there are no prohibitory words in the statute. * * *»

In Ruling Case Law we find that even the imposition of a penalty is not essential in order that there may be an implied prohibition.

“In other words, it is not necessary that a statute should impose a penalty for doing or omitting to do something in order to make void a contract which is opposed to its operation. The obverse of this proposition is however, the basis of a well established rule, which dates at least from the time of Lord Holt. * * * Although it might perhaps not warrant the conclusion that a penalty implies a prohibition for the purpose of making the offense punishable by indictment in case the law had prescribed another and a specific punishment for the offense, Lord Holt’s remark is authority for the proposition that a contract made in direct violation of a statute providing a penalty for the violation thereof is illegal though the contract is not in express terms prohibited or pronounced void.” Ruling Case Law, vol. 6, p. 702, sec. 108.

Cases in large numbers are cited under these authorities, older ones from' which the rule announced was formulated and the more recent ones in support of the rule.

The only departure from the rule is to be found in those cases where the court was considering a statute in which the penalty was imposed as revenue bearing measure. But such was not the purpose and intention of the Legislature in enacting the law regulating the practice of public accounting, as has already been noted. The fee of $25 exacted from the applicant for registration is not a license in the sense that it is meant as a revenue producer, but merely a payment he makes for the certificate he receives after having been found competent by an official board of the state, which holds him out to the business world as worthy of its trust and confidence in the practice of his chosen profession. About all the fee can be used for is to help defray the expense of this board in its work incidental to the granting of his certificate.

With regard to this particular kind of statute, Corpus Juris, volume 13, p. 423, sec. 353, has this to say:

“Where a license or certificate is required by statute as a requisite for one practicing a particular profession, an agreement of a professional character without such license or certificate is ordinarily held illegal and void. This is true, for example, of an agreement made by an unlicensed or uncertified physician, an attorney at law, a conveyancer, an engineer, or a school teacher. The authorities are in accord on this point, where the license is required for public protection and to prevent improper persons from acting in a particular capacity and not for revenue purposes only. * * *”

Whilst there are no Louisiana cases we have been able to find or to which we have been referred bearing on this particular point, the principle seems to be so well imbedded in the jurisprudence of the country, and it seems so reasonable and just, that we can very well subscribe to it.

The learned district judge was therefore correct' in holding that the contract under which plaintiff sued was unlawful and void and could not be enforced.

Defendant’s first claim in reconvention is for the recovery of the money it paid plaintiff for erroneous and worthless audits. The gist of its complaint is that the plaintiff did not make a detailed audit, but only what is known as a “balance sheet audit” of its business. A very great part of the testimony is devoted to an explanation of what is meant by a “balance sheet audit” and how it differs from a detailed or complete audit. From the mass of expert testimony and the authorities cited we think it is safe to say this much about it: That in making a “balance sheet audit” all the accountant is expected to do is to strike a general balance of the assets and liabilities of the business as reflected from the inventories, the books, bank and other accounts kept by the regular officers and employees of that business all of which he assumes to be correct. It differs from the detailed audit in this: That the latter requires him to make his own independent investigation into the physical property and assets as well as all papers, books, accounts, etc., of the business. In making a detailed audit, the auditor takes nothing for granted. It is needless to say that such audit involves much more research and entails far greater labor on the part of the auditor. It is but reasonable also that it should be much more expensive. Our appreciation of the testimony is that only a balance sheet audit was contemplated by the parties in this case, and that the errors which appeared came from the fact that the audit- or accepted as true and correct the inventories furnished by the defendant which in reality were not so. The demand was properly rejected.

As ■ to the reconventional demand for damages to its business, we agree with the trial judge in his statement that “there is no evidence of their infliction to any measurable extent.”

The judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 11,813
    Orleans
    BAUMAN v. CHAS. A. KAUFMAN CO., LTD.
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Miss Bauman, who prior to the accident out of which this suit grows was a boarding house keeper, received injuries in the store operated by defendant and into which she had gone for the purpose of matching a piece of goods. She was told by one of the clerks near the entrance that the goods could not be matched, and she thereupon determined to pass through the store and go out by another exit on a side street. She alleges that, as she passed through one of the aisles, a small stand with certain silk goods draped on it fell off of one of the counters and struck her on the head causing her serious injuries.

Defendant contends that the stand would not have turned over, if in fact it did so at all, except for the fact that it was either pushed or knocked over by Miss Bauman herself, either in brushing against it or in attempting to examine the goods which were draped upon it.

The district judge rendered judgment in favor of defendant, stating in his reasons for judgment “there is not sufficient evidence to show that there was negligence on the part of defendant’s employees and that it was caused by defendant’s employees.”

The record is very confusing and it is indeed difficult to determine from it just what occurred, but, from the testimony of plaintiff herself, we find it hard to believe that her injuries resulted from negligence on the ipart of defendant’s employees. In a statement signed by Miss Bauman shortly after the accident, she declared that “the silk ' stand which was setting on some bolts of goods fell over and struck me.” In her testimony, she attempted to create the impression, though she did not directly so charge, that one of defendant’s employees had knocked the stand over upon her. It is very evident that she would have realized that if the employee had done as she stated in her testimony that fact would have been the strongest evidence in her favor, and yet she failed to allege any such act of negligence in her petition. All of the employees denied having been near the stand at the time it fell, and we feel that plaintiff’s very uncertain, hesitating, contradictory testimony on this point is overwhelmingly disproved by the statements of the employees. In fact, on page four of her testimony, plaintiff makes two diametrically opposed statements, one immediately after the other, “This thing tipped over, they threw that thing over in some way.”

While it has no bearing on the question of whether or not defendant was at fault,, we cannot overlook the apparently absurd exaggeration by plaintiff of her injuries. The stand which struck her was very light. If her own allegations are true, the smaller end which struck her could not have fallen more than a few inches and yet she claims to have received permanent, serious injuries.

As we have stated, the evidence is to some extent conflicting, but we are well convinced that the cause of the accident was not negligence on the part of the employees of defendant. This appears to us to be a case for tbe application of tbe doctrine that the finding of the district judge will not be reversed unless manifestly erroneous.

The judgment .appealed from is, therefore, affirmed.


text:
    No. 11,916
    Orleans
    PAILET v. YVETTE CO., INC., ET AL.
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    Rudolph O. Vorbusch, of New Orleans, attorney for plaintiff, appellant.
    Spearing & Mabry and Wm. H. McClendon, of New Orleans, attorneys for defendants, appellees.
   HIGGINS, J.

Plaintiff sues defendants in solido for damages for personal injuries alleged to have been suffered by her as a result of the defendants’ employee unskillfully, incompetently, and negligently cutting the flesh on the third finger of the left hand of plaintiff, while she was having her finger nails manicured at defendants’ beauty parlor. The petition also alleges that the instruments used by defendants’ employee in manicuring the plaintiff’s nails were not properly sterilized, and that they were contaminated by bacteria and germs, causing an infection to the finger at the place where the flesh was cut. Defendants, in their answer, admitted that plaintiff had her nails manicured as alleged, but denied liability, averring that the operator who manicured the plaintiff’s finger nails was a skilled and experienced one and that the instruments were in a proper state of sanitation, having been properly sterilized.

There was judgment in favor of the defendants dismissing the suit, and plaintiff has appealed.

The record shows that the plaintiff visited the beauty parlor of the defendants on July 14, 1927, and had her finger nails manicured. She had a paronychia, commonly known as a hang nail, on the third finger of the left hand, and the operator clipped it close to the flesh in order that there would not be any protruding part which might catch on anything so that it might heal up. A drop of blood was drawn in removing the hang nail and mercurochrome was applied. The evidence also shows that at the time the plaintiff had her finger nails manicured they were in a neglected condition and were not clean and were stained from black hair dye. This was removed with peroxide. At the time the hang nail was removed she did not complain of any pain or give any outcry. A week later she returned to the defendants’ ' place of business and complained of an infected finger. The manager brought her to Dr. Bloch, defendants’ physician, who removed the part of the finger nail where the infection was and made provision for proper drainage of the affected part.

The plaintiff is a very highly nervous lady, and when the finger did not respond to the treatment of Dr. Bloch as quickly as she desired, she complained and was directed by him to go to Dr. Landry’s office in order that he might look at the finger. She did not go to Dr. Landry, but went to her own physician, Dr. Davidson, who treated the finger for some three months. Plaintiff claims that she suffered excruciating pain and that the finger is permanently disfigured.

The only evidence offered by the plaintiff was her testimony and Dr. Davidson’s. There is nothing in the plaintiff’s testimony which would indicate that the operator was guilty of negligence, carelessness, lack of skill, or incompetency. Dr. Davidson’s testimony is limited strictly to the treatment of the infected finger. Plaintiff did not attempt to prove that the instruments used by the operator in manicuring her nails were contaminated with bacteria and germs and were in an unsanitary condition.

The defendants’ evidence clearly shows that the operator who manicured the plaintiff’s finger nails was a trained, skilled, and experienced manicurist, and that the instruments used were properly sterilized in lysol solution, which is the customary sterilization process used by beauty parlors for that purpose. The defendants’ evidence further shows that the plaintiff’s hang nail was properly removed in the customary manner, it being necessary to clip the hang nail close to the flesh in order that there would not be any protruding part to catch in anything, causing the hang nail to become deeper. Defendants’ evidence further shows that the plaintiff used hair dye and that her finger nails were stained from the dye both on the occasion of her visit the first time and thereafter at the doctor’s office.

A careful reading of the record convinces us that the judgment is correct.

For the reasons assigned, it will therefore be affirmed.


text:
    No. 11,906
    Orleans
    DYSON v. GANO
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)

      Spearing & Mabry and Wm. H. McClendon, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Woodvi'lle & Woodville, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for compensation.

Defendant, Gano, makes no defense to plaintiff’s suit, but attempts to call United States Fidelity & Guaranty Company in warranty, alleging that that company had issued a policy of workmen’s compensation insurance to one A. H. Alvis, and that, when Gano bought from Alvis the gravel pit in which plaintiff was injured, he (Gano) intended to -buy, and thought he had bought, Alvis’ interest in the policy in question, and that, therefore, the company should indemnify him against such loss as he may sustain as a result of this suit.

We see no allegation in the petitioh which, even if proven, would justify a judgment against defendant in warranty, and therefore feel that the judgment maintaining the exception was correct.

There is manifestly no error in the judgment in favor of plaintiff and against the main defendant.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.


author: JANVIER, J. PER CURIAM.

text:
    No. 13,168
    Orleans
    STEWART v. SEGAL ET AL.
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Louis E. Jung, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This matter, presenting only a question of law, was submitted on an agreed statement of fact. We know of no better way to state the facts than to set forth in full the stipulation agreed to by the parties:

“It is agreed by and between Louis E. Jung, attorney for Samuel B. Stewart, and Lemle, Moreno & Lemle, attorneys for Federal Surety Company, that this case shall be submitted on the following statement of facts, which are agreed to by and between the said attorneys:
“On or about May 3rd, 1928, Federal Surety Company became the surety on a certain building contract bond for Twelve Thousand ($12,000.00) Dollars, whereon Bernard Segal, the contractor, was principal, running to Mrs. Etta Greenwald, covering the construction work about to be undertaken in the premises 2834-36 Napoleon Avenue.
“On or about the 9th day of May, 1928, Samuel B. Stewart entered into a written contract with Bernard Segal for the sale and installation of two (2) No. 5 D Estate Heatrolas for the price and sum of One Hundred Seventy ($170.00) Dollars, the said Bernard Segal being at that time and subsequently engaged as contractor for the construction and/or erection of the building known as 2834-36 Napoleon Avenue, hounded by Willow, Clara and Jena Streets, the said building belonging to Mrs. Etta Greenwald, which said contract stipulated that the amount thereof, $170.00, should be paid Samuel Stewart ten days after the installation of said heatrolas, and that interest at the rate of eight (8%) per cent would be charged from maturity of said contract, until paid, together with twenty (20%) per cent attorney’s fees additionally, all as will more fully appear by reference to said contract, annexed to plaintiff’s petition and marked Exhibit ‘P-1.’
' “On or about September 5th, 1928, the said heatrolas were installed in the premises 2834-36 Napoleon Avenue then being constructed and/or erected by the said Bernard- Segal.
“That the said heatrolas were not paid for within ten days after their installation and have not yet been paid for, notwithstanding amicable demand on the said Bernard Segal.
“That Samuel B. Stewart executed an attested account before Joseph Rosenburg, Notary Public, on the 14th day of February, 1929, recorded a copy thereof in the Mortgage Office for the Parish of Orleans in Book 78, Folio 304, and served a copy | thereof on the Federal Surety Company.
“The Federal Surety Company offered to pay to Samuel B. Stewart the sum of One Hundred Seventy ($170.00) Dollars, the amount of the labor and material furnished in the building, 2834-36 Napoleon Avenue, together with One and 50/100 ($1.50) Dollars, the cost of recording the lien of the said Samuel B. Stewart in the Mortgage Office for the Parish of Orleans, and on May 4th, 1929, sent to Louis E. Jung, attorney for Samuel B. Stewart, its check for $170.00, and the check of Lemle, Moreno & Lemle for $1.50, together with a document to secure the cancellation of the lien recorded by Samuel B. Stewart in the Mortgage Office for the Parish of Orleans in Book 78, Folio 304, but the said two checks were returned to Lemle, Moreno & Lemle, attorneys for Federal Surety Company, with the advice that Mr. Stewart would not accept less than the amount that his contract called for, which included interest at 8%, running from a period of ten days after the installation of the heatrolas, and 20% attorney’s fees, which amount the Federal Surety Company has refused to pay.
“The issue presented to the court for determination is whether or not the Federal Surety Company is obligated to pay and the plaintiff herein, S. B. Stewart, is entitled to collect from Federal Surety Company the said 8% interest and 20% attorney’s fees.”

The obligation of the surety on a building contractor’s bond is to pay all subcontractors, laborers, and furnishers of material and supplies necessarily called for by' the contract.

The two heaters were called for by the building contract, and of course there can be no question as to the liability of the surety therefor, and this liability has been admitted, and there has been deposited in the registry of the court a sum sufficient to discharge this obligation.

But is the surety liable for such unusual, incidental obligations as the principal may have been willing to assume, if those incidental obligations are neither specified in the main contract nor customary in the furnishing of material and supplies?

We do not find that the attorney’s fees on subcontracts are specified in the main contract, nor do we believe that it is customary, in the furnishing of material such as heaters, to require that a 20 per cent attorney’s fee shall be paid if the main debt is not discharged in ten days.

As to the interest, we believe that it can be said to have been within the contemplation of the surety that the furnisher of supplies should be entitled to interest on his debt. Eight per cent per annum is a lawful rate of interest, and therefore it appears to us to be not unreasonable to say that the creditor was within his reasonable rights in stipulating for 8 per cent interest, instead of accepting 5 per cent, which would have been allowed in the absence of a stipulation.

But the 20 per cent attorney’s fee which was stipulated for in the event of nonpayment of the debt within ten days appears to us to be unreasonable, not according to custom, and not within the contemplation of the surety. If the creditor could, by such a stipulation, made without the knowledge or consent of the surety, bind the surety, he could make any contract, no matter how unreasonable, and the surety would be bound therefor. To enforce the contract would result in the penalizing of the surety beyond the limits contemplated in the main contract.

The surety was therefore within its rights in refusing to pay the attorney’s fees called for, but was not justified in refusing to pay the interest at 8 per cent.

Since the deposit made was insufficient in view of the fact that it did not include interest at 8 per cent, the surety should pay the costs of the trial court. But, since the judgment of the lower court was erroneous, in that it included attorney’s fees at 20 per cent, the appellee should pay the costs of appeal.

No penalty is due under Act 225 of 1918 since the plaintiff was not willing to accept payment unless that payment included attorney’s fees, and since we do not believe that the attorney’s fees were due by the surety.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended so as to reduce the amount thereof to $171.50, with interest at 8 per cent per annum from September 15, 1928, subject to a credit of $171.50, costs of the city court to be paid by defendant and appellant, and costs of this court to be paid by plaintiff and appellee, and, as thus amended, the judgment is affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

The decree rendered by this court on March 10, 1930, is amended so as to read as follows:

“It is ordered, adjudged and decreed that the judgment appealed from be and it is amended so as to reduce the amount thereof to $171.50, with interest at 8 per cent per annum from September 15, 1928, to May 17, 1929, subject to a credit of $171.50, costs of the city court to be paid by defendant and appellant, and costs of this court to be paid by plaintiff and appellee, and as thus amended the judgment is affirmed.”

The application for rehearing is refused.


text:
    No. 11,774
    Orleans
    CHANCE v. GRAND LODGE, KNIGHTS OF PYTHIAS, STATE OF LOUISIANA, OF NORTH AMERICA, SOUTH AMERICA, EUROPE, ASIA, AFRICA AND AUSTRALIA
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Johnston Armstrong, of New Orleans, attorney for plaintiff, appellant.
    P. B. Smith, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff, alleging that she is the beneficiary and widow of the deceased, entered suit against defendant, a fraternal organization, on an endowment insurance policy issued to deceased as one of its members. Defendant denied liability, and alleged that the proceeds of the policy, $500, was paid to the three children of the deceased, designated as beneficiaries in the policy by him, and that the payment was made in accordance with the constitution and by-laws of the association. There was judgment in favor of the defendant dismissing plaintiff’s suit, and plaintiff has appealed.

The record shows that the deceased, George Watson, was married to Carolina Chance on June 2, 1894, at Napoleonville, Assumption parish, this state. Watson became a member of one of the defendant’s lodges on October 12, 1903, and designated his sister, Susan Hanna Hagan, as beneficiary. On April 14, 1919, Watson requested that the beneficiary be changed from his sister to his mother, Fanny Frazier. Fanny Frazier died on July 2, 1923, and on February 8, 1926, Watson changed the beneficiary to Angelina, Marion, and Julia Watson, his daughters. Watson died on October 2, 1927, and Julia Watson, apparently his common-law wife, as widow of George Watson, qualified as natural tutrix of Angelina, Marion, and Julia Watson in proceeding No. 171809 of the civil district court for the parish of Orleans, and upon due application made by the natural tutrix, the proceeds of the policy, amounting to $500, was paid to the designated beneficiaries through their natural tutrix. It appears that prior to the payment plaintiff had informed the Grand Chancellor of the defendant that she was the lawful widow of the deceased and expected the proceeds of the policy to be paid to her. While the petition alleges that the plaintiff was originally designated beneficiary under the policy, the proof conclusively shows that she was never, at any time, designated as the beneficiary of the policy by the deceased, Watson.

Plaintiff contends that • Angelina, Marion, and Julia Watson are the illegitimate daughters of the deceased, and, since they are ineligible both by the constitution and by-laws of the association and the law of the state of Louisiana, that the money should have been paid to plaintiff as the lawful widow of the deceased.

Defendant contends that plaintiff is without any legal right to institute this suit and question the payment of the proceeds of the policy to the designated beneficiaries, as she is without any vested right or interest in the policy, and, second, that the payment of the proceeds to the designated beneficiaries was lawfully made.

The law of Louisiana on this subject-matter is found in Act 256 of 1912, which provides for the organization and regulation of associations transacting the business of life insurance on the fraternal plan in this state. Section 6 of the act reads as follows:

“That the payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member. * * *”

Section 5, article 2, of the endowment laws of defendant provides that:

“A member of the order of Knights of Pythias may change the name of the beneficiary on his policy in accordance with the laws of the State of Louisiana without obtaining the consent of the beneficiary or beneficiaries named on the policy previously issued.”

And section 2 of article 1 of the endowment laws of defendant contains this provision:

“The said benefits shall be confined to wife, relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption or to a person or persons dependent upon the members for support.”

Counsel for plaintiff says that, as the daughters of the deceased were illegitimate children, they were ineligible to be designated as beneficiaries of the policy, and as she is the lawful widow of the deceased and the first party designated in the statute and in the constitution and by-laws of-the association as an eligible beneficiary, that the money should be paid to her.

As we view the case, the first inquiry is whether or not the plaintiff has any right to bring this suit, for, if she is without any right or interest in the policy, the matter of the payment of the proceeds of the policy cannot be questioned by her.

The record clearly shows that the plaintiff at no time was ever designated as beneficiary of the policy. If she had been, and later an ineligible beneficiary had been named, it might he argued that the change of beneficiary as against her would be ineffective. Plaintiff contends that as the statute and the constitution and by-laws of the association designate the wife first in listing the eligible beneficiaries, she is therefore to be considered as the beneficiary of the policy, because the deceased’s attempt to designate as beneficiaries his illegitimate children would be illegal and in violation of both the statute and the constitution and by-laws of the association. We are unable to follow counsel in this contention, because both the statute and constitution and by-laws merely name the persons, or class of persons, who are eligible to be designated as beneficiaries. The language does not in any way indicate that the beneficiaries named in the statute and constitution and by-laws shall be considered as beneficiaries in the order named, in default of the insured designating a beneficiary, or in the event he should designate an ineligible beneficiary. We are convinced that if it had been the intention of the Legislature, or the officers in charge of the defendant association, that the beneficiary should be taken in the order listed in the statute and the constitution and by-laws, language conveying such meaning would have been placed in the statute and constitution and by-laws.

The Legislature, in amending and re-enacting article 2315 of the Revised Civil Code, giving a right of action for death, specifically provides the beneficiaries in the order in which they are listed, and in default of the first-named beneficiary, the second one is to be considered the beneficiary, and so on through the entire list of persons or class of persons made eligible as beneficiaries under the article of the Code.

Corpus Juris, verbum Mutual Benefit Insurance, par. 189, page 245, volume 45:

“In case a member of a beneficiary society fails to designate a beneficiary, the henefits are to be distributed in tbe manner prescribed by the statute or the laws of the society or the certificate of membership, and a liberal construction- should be given to such provisions. In the absence of any provisions for such a case, the society is liable to no one; and, unless the society’s charter provides otherwise, it is competent for the society to enact by-laws providing that if the member fails to designate a beneficiary, and there are no persons living to whom the benefits are otherwise payable, no liability shall accrue on the contract, and the fund shall revert to the society. It amounts to a failure to designate a beneficiary within these rules where the certificate as issued is payable to the member’s devisees, or as he may direct by will, and he dies intestate; or where a member revokes a previous designation without making another, or where the designation is for any reason invalid or ineffective.”

As neither the statute, nor the constitution and by-laws of the defendant association, designates who shall be the beneficiary where the insured fails to designate a beneficiary, or designates an ineligible beneficiary, we do not feel that the plaintiff has any vested rjght or interest in the policy, and she is therefore without any right to question the payment made by the defendant association. Whether or not the payments made by defendant association are legal is of no moment, as the plaintiff is without any right to raise this issue. We do not deem it necessary to pass upon the question of whether or not the payment in this case was legal, as we find that the plaintiff, as lawful widow of the deceased, was without any right to bring this suit.

Counsel for plaintiff states that after an exhaustive search he was unable to find a Louisiana case in point, and cites several authorities of other states which we do not consider applicable here.

For the reasons assigned, the judgment is affirmed.


text:
    No. 11,691
    Orleans
    WILLIAM D. SEYMOUR CO., INC., v. CASTELL ET AL.
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      McCloskey & Benedict, of New Orleans, attorneys for H. H. Converse, plaintiff, appellee.
    Monroe & Lemann and Walter J. Suthon, Jr., of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This matter comes before the court on a rule which the plaintiff took against the surety on a suspensive appeal bond to show cause why the surety should not pay the amount of the judgment. There was judgment in favor of the plaintiff making the rule absolute against the surety, from which the surety prosecutes this appeal.

The record shows that the plaintiff sued William J. Castell and William H. Cowley, as solidary obligors on notes aggregating the sum of $1,872.30. A judgment by default was taken against Castell, who failed to make any defense. Cowley defended the suit on various grounds, but the Supreme Court affirmed the judgment of the district court against him for principal and interest, but rejected the attorney’s fees allowed the plaintiff by the judge a quo. See Seymour & Co. vs. Castell et al., 160 La. 371, 107 So. 143.

The Globe Indemnity Company, as surety, now defendant in rule in this proceeding, furnished Cowley with the suspensive appeal bond in the sum of $3,500. The present litigation is to enforce payment of the judgment against the surety on this bond.

• When the judgment of the Supreme Court became final, the plaintiff sold, assigned, and transferred its rights under the judgment against Castell and Cow'ley to one H. H. Converse, plaintiff in rule herein, who was recognized as the assignee and transferee of the plaintiff’s judgments by appropriate orders of court dated February 10, 1926.

Thereafter the substituted plaintiff made some efforts to collect the judgment against Cowley by execution and garnishment, which were followed by a rule against the surety on the appeal bond, filed March 17, 1927. On March 24, 1927, after argument on the rule, but before the court passed upon it, the plaintiff in rule discontinued it without prejudice. Further efforts to collect the judgment by execution and garnishment process followed, and a second rule against the surety on the appeal bond was filed on March 27, 1928. On July 19, 1928. this rule was discontinued without prejudice. A third rule was filed against the surety and tried on July 27, 1928, resulting in a judgment against the surety for the amount of the original judgment in principal, interest, and costs, subject to certain credits aggregating about $750. The credits resulted from a collection on the judgment by garnishment process against the Canal Bank, amounting to $96.89, an allowance to Cowley of the costs of appeal in the original suit where the attorney’s fee was rejected, and a realization of $636.-65 from a seizure under execution of certain real estate belonging to Cowley. This real estate was heavily incumbered, and upon the payment of this amount the seizure was released in this respect, with the approval and consent of the surety on the appeal bond.

In its return to the rule dictated in the record, the surety asks the court to dismiss the rule on two grounds, to-wit: First, the record shows that, under the executions issued against Cowley, a bank box belonging to him in the possession of the Canal Bank was seized, and this seizure was released when the writs were returned under instructions from the attorney for the plaintiff in rule to return the writ nulla bona; second, the record shows that the original plaintiff in this case held, as security for the notes of Castell and Cowley, .1,500 shares of stock in the Castell Land & Harbor Company, and no effort has been made to execute the judgment by seizing this stock. The surety contends that it is not bound to pay under its suspensive appeal bond, until all of the property, both real and personal, of the judgment debtor, is first exhausted.

We will now discuss these defenses in the above order. It appears that the bank box was seized three times, and on each occasion the civil sheriff was permitted to release the seizure without realizing anything of value therefrom. The reason why the bank box was released twice was because of some alleged irregularity in the execution of the fi. fa. or the return. But, in the rule filed against the surety on March 17, 1927, it is alleged that the fi. fa. was returned nulla bona, although the original fi. fa. is not in the record. However, there is a duplicate bearing the notation that due return was made on the original. On the second fi. fa., the Canal Bank answered the garnishment that it had in its custody a safety deposit box belonging to Cowley, but nothing further appears to have been done, and the return was made nulla bona on May 26, 1927. A third fi. fa. was issued on June 6, 1927, under which the cash credit of $96.89 was realized from garnishment process, and $636.65 from the seizure of the real estate, heréinabove explained. The contents of Cowley’s bank box at the Canal Bank was seized, and the bank was directed to deliver it to the sheriff, and the sheriff authorized to take possession of it, but nothing is shown in the return to the original writ, or the supplemental return to the writ, as to what was done or attempted to be done under the order of court, or as to what became of the contents of this bank box.

On the trial of the rule, counsel for plaintiff in rule took the stand in order to explain the release, with the consent of the surety, of the real estate seized under the writ of fi. fa. by the sheriff. Counsel for the surety company was present in court and made no effort to cross-examine or have the witness explain what the bank box contained, if anything. Cowley was also produced as a witness by defendant in rule, and testified, but was never asked what the bank box contained. It would seem to us that a very strong presumption that the bank box contained nothing of value would arise, as the very purpose of the seizure was to obtain something of value in order to satisfy the judgment. The record convinces us that the plaintiff in rule has made every reasonable and serious effort to find something of value the defendant Cowley owned, in order to execute the judgment, before proceeding against the surety. The record shows that the surety company itself was called upon to point out anything of value that Cowley might own in order that the sheriff might seize it. but the surety company was unable, or failed to do so. The surety has not shown that it suffered any loss or damage as a result of the release of the bank box, and we feel quite certain that, if there had been anything of value in the bank box, neither the plaintiff in rule nor the sheriff would have ever released it. The surety company had a full opportunity to ascertain from Cowley, the sheriff, and plaintiff in rule at the trial of the rule, if anything of value was contained in the bank box and failed to do so. As we feel confident that there was nothing of value contained in the bank box, we do not even deem it necessary to remand the case for further evidence on this point.

We next pass to a consideration of the second defense.

The evidence shows that William D. Seymour Company, Inc., loaned some money to William J. Castell, and that the notes evidencing same were secured by 1,500 shares of stock of the Castell Land & Harbor Company. These original notes were indorsed by William H. Cowley as an accommodation indorser. When the notes fell due, Cowley requested Seymour Company, Inc., to renew the loan for the balance, which it did, but the stock was not pledged as collateral security for the new notes, and, instead of Cowley signing as an accommodation indorser, he signed the notes as a joint maker. The stock was retained by Seymour Company, Inc., but appears to have been returned to Castell after this suit was filed, as the stock at that time was of no value. The stock is not mentioned in the judgments. It must be borne in mind that the stock was not pledged as collateral security on the new notes, which formed the basis of the present suit, and therefore Seymour Company, Inc., had the right to return this stock to Castell.

We are convinced that the stock was not transferred by the original plaintiff to the plaintiff in rule at the time of the assignment, as nothing is said in the assignment concerning the stock. At the time of the trial of the rule, Cowley, who was offered as a witness by defendant in rule, testified that the stock belonged to Castell and not to himself, and that its value was “problematical.” William D. Seymour, of Seymour Company, Inc., the original plaintiff, testified that he did not remember what became of the stock, but was of the impression that it had been returned to Castell, whom he believed owned it. We feel sure that, if the stock had had any value, Seymour Company, Inc., as it retained possession of the stock after having obtained judgment, would have certainly seized it in order to satisfy the judgment. We also feel certain that the substituted plaintiff would likewise have seized the stock, if valuable or available, in order to satisfy the judgment as far as possible. Notwithstanding the fact that William D. Seymour and Cowley were witnesses in the trial of the rule, the surety made no attempt to show that it suffered any loss or damage as a result of the stock not being seized, or that it had any value.

Under the circumstances, we do not feel that it can be said that the plaintiff in rule has not seized all of the personal and real property of the judgment debtors. The record shows that diligent and persistent effort to seize anything of value belonging to the judgment debtors was made by the plaintiff in rule, and, having exhausted all means of securing anything further of value from the judgment debtors, he is now entitled to have the surety on the appeal bond pay the balance due under the judgment.

Counsel for the surety company has submitted numerous authorities to the effect that the surety is not bound to pay until all of the property, both personal and real, of the judgment debtor is first exhausted. This is unquestionably good law, but we fail to see where it helps the surety, because plaintiff in rule has exhausted all of the available personal and real property belonging to the judgment debtors before asking the surety to pay the judgment.

Furthermore, and in any event, the surety can only claim discharge or release to the extent of the injury proven.

In Provan vs. Percy et al., 11 La. Ann. 179, the Supreme Court said:

“The discharge of the surety, under Article 3030 (3061) of the Code, only takes place to the extent to which the acts of the creditor have prejudiced the recourse of the surety for reimbursement of what he may be obliged to pay under his contract of suretyship.”

In Hill & Co. vs. Bourcier et al., 29 La. Ann. 844, we find the following:

“Jurisprudence has settled the law that the surety is not discharged by the mere omission of the creditor to sue the principal, or to enforce his privilege. If by the act of the creditor, or his willful neglect or want of proper diligence any of the securities, rights, mortgages, and privileges by which the debt was secured, are lost, so that they can no longer be made available, the surety is discharged to the extent of their value.”

In Stewart vs. Lacoume, 30 La. Ann. 157, it was held:

“The surety on a forthcoming bond can only claim a release from his obligation, because the sheriff has made a return of the fi. fa. issued against the principal of the bond before the return day of the writ, by showing that he was injured thereby. And even then he can only claim a release to the extent of the injury proved.”

We are of opinion that the judgment of the district court is correct, and it is therefore affirmed.

JANVIER, J., takes no part.


text:
    No. 11,935
    Orleans
    SCHIRO v. FALLO
    (March 24, 1930. Opinion and Decree.)
    (April 21, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      J. D. Dresner, of New Orleans, attorney for ¡plaintiff, appellee.
    H. L. Hammett, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff herein, Andrew E. Schiro, on June 7, 1927, purchased certain real estate from the Greater New Orleans Homestead Association by act before J. D. Dresner, notary public, and executed in favor of the homestead association a vendor’s lien mortgage note for the sum of $6,700. . On the same date, before the same notary public, he resold the property to Mrs. Pallo, defendant herein, who assumed “the vendor’s lien mortgage in the sum of $6,700, granted by the petitioner to the Greater New Orleans Homestead Association, subject to all the terms and conditions contained in the petitioner’s act of purchase.” Mrs. Pallo failed to pay the homestead the monthly installments due on the property, and it was foreclosed. The expense of the foreclosure, sheriff’s commission, interest, attorney’s fees, taxes, etc., amounted to $1,647.64. Plaintiff brings this suit for that amount, alleging that he has incurred that expense. Defendant filed an exception of no cause of action, which was overruled, whereupon she defended upon the ground that she was induced to buy the property upon the faith of false representations amounting to fraud.

There was judgment below in favor of plaintiff as prayed for, and defendant has appealed.

We believe this judgment of our learned brother below to be erroneous.

The effect of Mrs. Pallo’s assumption was to make her a co-debtor of the homestead association with Andrew Schiro, the plaintiff herein. Both Schiro and Mrs. Pallo are bound in solido to the homestead for the entire amount of the homestead loan, whatever may be their rights inter sese. Simon . vs. McMeel, 167 La. 243, 119 So. 35.

There are no allegations in the petition, nor is there any proof in the record, that the plaintiff in this case has paid the homestead anything on account of the expense of foreclosure for which he is solidarily liable with the defendant. The homestead association is not a party to the suit, and has not intervened.

The creditor of a solidary obligation may sue any one of his debtors in solido, without the others having the right to plead the benefit of division. R. C. C. art. 2094.

The mere fact that Schiro has incurred the expense of foreclosure due to Mrs. Pallo’s failure to pay.the installments due the homestead does not give rise to a cause of action in his favor as against Mrs. Pallo, his co-debtor, whose obligation to the homestead would not be discharged by payment to Schiro. In Glauber Brass Manufacturing Co. vs. Ibos, 12 Orl. App. 316, it was held:

“The novation of the solidary debt of the former members of a dissolved partnership will not be presumed from the mere fact that the creditor, with knowledge of the partnership’s dissolution, takes the individual note of one of the former partners for the amount of the debt.”

It follows from what we have said that the exception of no cause of action should have been maintained and plaintiff’s suit dismissed.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the exception of no cause of action he maintained and plaintiff’s suit dismissed at his cost.


text:
    No. 12,177
    Orleans
    GAMBLE v. O’NEILL
    (May 5, 1930. Opinion and Decree.)
    Gamble & Gamble, of New Orleans, attorneys for plaintiff, appellee.
    St. Clair Adams, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

On May 18, 1928, Harry P. Gamble, plaintiff herein, resigned the office of attorney for the clerk of the Civil District Court for the Parish of Orleans, in the collection of inheritance taxes, an office to which he had been appointed and the functions of which he had discharged for some years prior thereto. He mailed his resignation to Governor Simpson, whose term of office was about to expire, with a request that it be handed to his successor, Governor Long, in the event that the resignation was not acted upon during his incumbency of the gubernatorial office. On May 22, 1928, Governor Long notified Mr. Gamble that his resignation had been accepted, but his successor, Earl K. Long, was not appointed until May 28, 1928, when he was confirmed by the Senate and inducted into office. During the interval between May 18th and May 28th, plaintiff continued to act and to discharge the functions of the office which he had resigned, having been advised, in response to an inquiry addressed to the Attorney General, that it was his duty so to do.

The office which Mr. Gamble occupied, was established by Act 127 of 1921 and provided for compensation upon a fee basis. Section 22 of that act reads in part as follows:

“* * * sai,j attorneys both in the Parish of Orleans, and other parishes of the state, shall receive for their services, except as provided in Section 12 and 13, a fee of four per cent on all taxes collected hereunder up to one hundred and fifty thousand dollars ($150,000) and two per cent on amounts in excess thereof.”

A controversy arose between Mr. Gamble and his successor concerning certain fees which had accrued, with the result that this suit was brought by Harry P. Gamble against John J. O’Neill, clerk of the Civil District Court, who, under the act referred to, was charged with the collection of the taxes and the payment of the fees due the attorney, and E. K. Long, Gamble's successor, for the purpose of establishing which of the two officials was entitled to a sum of money in the hands of the clerk aggregating $1,052.27, which represented fees which had accumulated during the interval between the resignation of Mr. Gamble and the qualification of Mr. Long, his successor.

On behalf of plaintiff, it is urged that, according to the provisions of section 6 of article 19 of the Constitution of 1921, it was his duty to remain in office and to discharge its functions until his successor had been inducted into office, and that, being required to do so by constitutional mandate, it follows necessarily that he is entitled to the emoluments of the office during his incumbency. The section referred to reads as follows:

“All officers, State, municipal and parochial, except in case of impeachment or suspension, ■ shall continue to discharge the duties of their offices until their successors shall have been inducted into office.”

Defendants contend “that the emoluments of an office follow the title thereto and. a de facto officer is not entitled to such emoluments,” and “that under the inheritance tax law, Act 127 of 1921, Section 22, the attorney who occupies the office of attorney for the inheritance tax collector de jure at the time the inheritance taxes are ‘collected,’ is entitled to the emoluments of the office.” This latter contention having reference to the fact that some of the fees claimed in this suit were not paid until after the qualification of Earl K. Long, though the legal service for which such fees were compensatory had been rendered prior thereto.

We cannot follow counsel in his distinction between a de facto and a de jure officer as affecting the right of plaintiff to recover in this case. At the time the services were rendered for which compensation is claimed, there was only one officer whose duty it was to represent the state in connection with the collection of inheritance taxes. Gamble was the de jure officer. Under the article of the Constitution which has been quoted, it was his duty to discharge the functions of that office, and no one else had any authority whatever to do so. Being compelled to render services, there is necessarily implied the right to collect the compensation provided by law for such services; consequently, as. to all fees which were collected prior to the qualification of his successor, it seems clear to us that Gamble is entitled to receive them.

Concerning the fees which were paid after the qualification of plaintiff’s successor for services rendered, prior thereto, which amount to $830, making up more than half the amount sued for, we find ourselves in complete accord with the views expressed by the trial court in its able opinion, from which we quote:

“It is argued that, because the Act measures the amount of compensation to be paid by the amount collected, it was thereby intended to give the amount to the person filling the office at the time the collection was had. This argument, however, entirely overlooks the fact that the same section states specifically that the amount is received for the services, which can mean only for the services provided for by the Act.
"When it is considered that the Act provides a specific means whereby the court fixes by judgment the amount due, and gives the heir the right to have this done, and also provides that the tax itself shall not be payable or delinquent until six months after the death of the de cujus, it would appear reasonably clear that the services rendered intended by the Act were those rendered up to the time the tax was fixed, as the collection follows almost invariably as a matter of course, the executors and heirs being prohibited by the terms of the Act from going into (possession or delivering legacies without the payment of the tax.
“It is urged, however, that inasmuch as the approval of Mr. Long was had before the Clerk of Court accepted the payment of the taxes; that he has also rendered services, and the statute provides no method of segregating the services rendered by each. The answer thereto is that his approval was not at all necessary, and, if exacted by the Clerk, was done so purely for his own personal satisfaction. The judgment of the Court fixing the amount of tax due was a complete warrant to the Clerk to accept the tax, and nothing further was needed.
“The matter is not completely a new one in our jurisprudence, as the Supreme Court in the case of Hiestand v. Labatt, 11 La. Ann. page 30, in passing upon a very similar statute, said: ■
“ ‘Syllabus: The five per cent allowed by statute to the Assistant City Attorney on the amount of all fines and penalties collected, in full compensation for his services, has reference to his services anterior to the collection, and to the general understanding of the profession that an attorney has earned his fee when he has prosecuted or defended a case to judgment; so that the Assistant City Attorney who obtains the judgment is entitled to the commission, although the actual collection of the debt may be made by his successor.
“ ‘Opinion. Lea, X The question for the consideration of the court in this case is whether the former Assistant' City Attorney of the City of New Orleans is entitled to recover the five per cent commissions on tax bills, fines and penalties which remained uncollected at the time he went out of office. This question is not free from difficulty, but we think the statute which provides that a commission of five per cent on the amount of all fines and (penalties- collected, shall be allowed the Assistant City Attorney in full compensation for his services, has .reference to his services anterior to the collection and to the general understanding of the profession that an attorney has earned his fee when he has prosecuted or defended a case to judgment. This view of the case is presented with the greater force, when it is considered that the judgment itself includes the attorney’s commissions which the statute says shall be received by the said Assistant Attorney. It was not, we think, in the contemplation of the legislator, that a judgment should be rendered for a remuneration of services not yet performed by a person not yet in office, when the officer who himself obtains the judgment is to go unpaid.’
“In Morel v. City of New Orleans, 12 La. Ann. page 485, the Court said:
“ ‘An attorney at law is entitled to claim commissions upon judgments obtained through his agency, as well as upon moneys actually collected on executions and accounted for to his clients, although he be superseded by the appointment of another attorney.’
“In Hiestand v. New Orleans, 14 La. Ann. page 137, the Court said:
“ ‘Our attention is called to the ease of Hiestand v. Labatt, 11 La. Ann. 30, and the correctness of that decision is questioned. It was there admitted that the question decided in that case was not free from difficulty. But after due reflection, we are not satisfied that any principle more satisfactory can be adopted than the one upon which the decision is based.
“ ‘It is urged against that decision that it declares that the fee of the City Attorney is earned by the rendition of the judgment, and that his successor will not receive anything for collecting these judgments, and, therefore, will be negligent, because without interest, in their collection. He will have the same interest in the fees in the hands of his successor, and it will be in the power of the city, if sued for the fees of the Assistant City Attorney, to defend the suit on the ground tlmt 'he had been negligent in the discharge of his duties, if such be the fact.’
"See also Bright v. Hewes, 18 La. Ann. page 666, the syllabus of which reads as follows:
“ ‘Where the City attorney of New Orleans obtained judgment against delinquent tax payers for taxes, and before tbe judgments were paid and satisfied was removed from office, and his successor claimed for the City tbe percentage allowed tbe City Attorney for tbe collection of taxes:
“ ‘Pleld, that the City Attorney who obtained tbe judgments is entitled to tbe five per cent on tbe amount collected on said judgments, and bis successor in office has no authority to interfere and enjoin tbe sheriff from paying tbe percentage to tbe attorney who obtained tbe judgments.’ ”

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

HIGGINS, J., takes no part.


text:
    No. 13,099
    Orleans
    CLARKE GARAGE CO., INC., v. ROSENBERG
    (May 5, 1930. Opinion and Decree.)
    Merrick, Schwarz, Guste, Barnett & Redmann and E. E. Willis, of New Orleans, attorneys for plaintiff, appellee.
    Joseph A. Casey, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant to recover $300, alleged to be due for real estate broker’s commission, and 25 per cent, additional as attorney’s fees. The petition avers that on May 16, 1927, defendant entered into a written contract with B. C. Curren, Inc., a corporation duly licensed and authorized to dp business as a real estate broker in this city; that under the terms and provisions of tbe contract Curren, Inc., was appointed as defendant’s exclusive agent to sell a certain piece of property on Magazine street in this city; that in consideration of tbe services of tbe real estate broker, defendant agreed to pay 4 per cent, on tbe sale price of $7,500 as commission, and an additional 25 per cent, as .attorney’s fees; that while the contract was in full force and effect the defendant sold tbe property through another real estate agent, but defendant failed to pay Curren, Inc., the commission; that Curren, Inc., assigned its rights under the contract to plaintiff.

Defendant answered, admitting the contract of employment and that the property was sold by another real estate agent during the life of the contract, but denied liability on two grounds: First, that B. C. Curren, president of Curren, Inc., was not authorized to assign the claim for commission to the plaintiff; and, second, that B. C. Curren, president of Curren, Inc., before the sale of the property, agreed to waive claim fo_r commission.

There was judgment in favor of the plaintiff as prayed for, and the defendant has appealed.

The record shows that Curren, Inc., was a duly licensed and authorized real estate broker in the city of New Orleans and rented its offices from the plaintiff. Curren, Inc., became delinquent in the payment of its rent, and plaintiff sued the corporation and provisionally seized its office furniture and automobile. In consideration of the plaintiff releasing the seizure and withholding further action in the case, Mr. Curren, as president of Curren, Inc., assigned the claim for commission in question to the plaintiff, and specifically authorized plaintiff to file suit for the collection of the claim.

The record also shows that Mr. Curren as president, had exclusive and unrestricted control, supervision, and management of the affairs of the corporation; that he signed all contracts whereby clients turned over to the company property for sale; that he collected all commissions due the company; that the company bears his own name and, in his own words, he “attended to all the business of the company.”

In the case of Westchester Fire Insurance Co. vs. Shreveport Producing & Refg. Co., 10 La App. 186, 121 So. 331, the court held:

“A formal assignment and subrogation of the rights of the insured was within the ministerial authority of the president who was also the general manager of the insured and did not require any special authorization of the board of directors.”

Our Supreme Court, in the case of Haas v. S. Gumbel & Co., 155 La. 422, 99 So. 350, 352, said:

“It is suggested in the briefs filed by counsel for appellant that the future (cotton future) transactions complained of should have been authorized or ratified by a resolution of the board of directors of the Opelousas Mercantile Company, and that the authority and confirmation given by the president, for the company, was not sufficient. As we have said, Mr. Roos was not only the president of the Opelousas Mercantile Company. He was its general manager and transacted all of its business without obtaining special authority from the board of directors for any particular transaction. Under such circumstances, the defendant, dealing with the president of the corporation in the usual manner and course of business, not ultra vires of the corporation, had the right to assume that the president of the corporation was. actually invested with the authority which he was exercising. Cook on Corporations (6th Ed.) p. 2290; Blanc v. Germania National Bank, 114 La. 739, 38 So. 537; Berlin v. P. L. Cusachs, 114 La. 744, 38 So. 539; Robert Gair Co. v. Columbia Rice Packing Co., 124 La. 193, 50 So. 8.”

See, also, Thompson on Corporations (3d Ed.) vol. 3, pp. 39 and 56.

We are of the opinion that the president of Curren, Inc., had the power and authority to sign the contract of assignment in behalf of the corporation, the transaction being one in the usual course of the real estate business.

Counsel for defendant has referred us to Jackson Brewing Co. vs. Canton, 118 La. 825, 43 So. 454. In that case the president of a brewing company, who was about to leave for Europe, left instructions with his secretary “to buy some real estate if any opportunity presented itself.” The secretary referred the matter to a real estate broker, who negotiated with the defendant to buy a piece of property from her. The case is distinguishable from the present one because it appears that the president exercised authority which was not in the usual course of business, the objects and purposes of the corporation being the carrying on of a brewing business, and not the purchasing of and dealing in real estate.

The next question is one of fact. Defendant and his witness Neely testify that Curren waived the commission. Curren testified that he did not. After the time he is said to have agreed to waive the commission, Curren recorded the real estate brokerage contract of employment in the conveyance office on June 23, 1927, which would tend to show that he neither had any intention of waiving, nor did he waive, the claim for commission. This defense is a special one, and the burden of proving it by a preponderance of the evidence is upon defendant. The evidence on this issue is conflicting and irreconcilable.

The judge -of the trial court found for the plaintiff, and, after carefully reviewing the record, we have concluded that his judgment is correct.

For the reasons assigned the judgment appealed from is affirmed.