text:
    No. 2574
    Second Circuit
    L. R. & N. CO. v. J. L. MULLEN SAW MILL CO., INC., ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus 6y the Court)

    1. Louisiana Digest — Appeal—Par. 625; Evidence — Par. 52, 53.
    The burden is on the plaintiff to make out its case with reasonable certainty, and the finding of the trial court that it has failed to do so will not be disturbed on appeal unless manifestly erroneous.
    Appeal from the - First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Louisiana Railway and Navigation Company against J. L. Mullen Saw Mill Company, Inc., et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark and Van Hook, of Shreveport, attorneys for defendants, appellees.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, an operator of a railway, sues defendant, an operator of a sawmill, for $1324.27 with legal interest thereon from December 21, 1921.

It alleges that it and defendant entered into a contract in writing whereby defendant agreed, in consideration of plaintiff hauling logs to defendant’s mill at special rates, defendant would ship out over plaintiff’s railway at the regular rates the finished product of such logs or pay plaintiff the difference between the special rate and the regular rate on the finished product of such logs not so shipped out.

And plaintiff alleges that defendant failed to ship out over its railway the finished product of the logs so shipped in and owed plaintiff the sum demanded under the contract.

The United States Fidelity & Guaranty Company of Maryland, as surety for the faithful performance of the contract by the J. L. Mullen Saw Mill Company, Inc., is made a co-defendant and judgment against it and J. L. Mullen Saw Mill Company, in solido, is asked.

Defendants filed exceptions of no right and no cause of action which were referred to the merits.

Thereupon defendants answered denying liability and alleging that the J. L. Mullen Saw Mill Company, Inc., had shipped out over plaintiff’s railway 2,704,505 pounds of finished product and that this was greatly in excess of the percentage of logs shipped in to its mill that it was required to ship out over plaintiff’s railway.

And defendants pleaded the prescription of two years under Act No. 223 of 1914 of the legislature of the state of Louisiana, and the prescription of three years of section 424 of the Act of Congress of February 28, 1920, as amended by Act of June 5, 1920. And assuming the character of plaintiff in reconvention defendants alleged:

“That, on or about the 1st of May, 1921, the plaintiff company, whose records are thoroughly erroneous and incompetent, made demand on defendant J. L. Mullen Saw Mill Company, Inc., for additional freight charges, as alleged in plaintiff’s petition, and that, without checking the records, defendant J. L. Mullen Saw Mill Company, Inc., at that time agreed, as a compromise settlement, to pay plaintiff two hundred ninety-one and 08-100 ($291.08) dollars, which amount was subsequently paid, as shown by statement attached to plaintiff’s petition, with the understanding and agreement on the part of the plaintiff company that the remainder of the claims and demands herein sued for should be remitted and released. That said payments, aggregating $291.08, were made through error, based on the misrepresentations and erroneous records of plaintiff company, and that defendant J. L. Mullen Saw Mill Company, Inc., is entitled to demand and recover the same in reconvention.”

And defendants prayed that plaintiff’s demands be rejected and its suit dismissed and for judgment in reconvention in favor of the J. L. Mullen Saw Mill Company, Inc., and against the plaintiff in the sum of $291.08 with legal interest thereon from the date of payment of the different items making up said amount.

On these issues the case was tried and there was judgment in favor of the defendants and against the plaintiff rejecting the demands of plaintiff and dismissing its suit at its cost; and there was judgment in favor of plaintiff and against the defendant J. L. Mullen Saw Mill Company, Inc., rejecting its reconventional demand.

The plaintiff appealed, and the defendant, J. L. Mullen Saw Mill Company, Inc., has answered the appeal and prays for judgment in reconvention against the plaintiff as set forth in its reconventional demand.

OPINION.

Plaintiff’s demand presents only a question of fact, namely, did defendant, J. L. Mullen Saw Mill Company, Inc., ship out over plaintiff’s railway the finished product ' of all logs, shipped into its sawmill over plaintiff’s railway.

Defendant, J. L. Mullen Saw Mill Company, Inc., had paid all freight hills presented to it by the plaintiff on account of haulage of logs shipped into and finished product shipped out of its mill over plaintiff’s railway and supposed it owed plaintiff nothing on that account when plaintiff made demand on it for payment of further charges and defendant, J. L. Mullen Saw Mill Company, Inc., paid to it $291.08 “with the understanding and agreement,” as alleged by defendant J. L. Mullen Saw Mill Company, Inc., “on the part of the plaintiff company that the remainder of the claims and demands herein sued for should be remitted and released.”

Still later the plaintiff demanded of defendant J. L. Mullen Saw Mill Company, Infc., further freight charges alleged to be due in the amount of $1324.27, which it refused to pay and this suit followed.

On trial plaintiff’s own witnesses virtually admitted that the charges made the basis of plaintiff’s demand are erroneous.

One of plaintiff’s witnesses, J. J. Tippin, testified:

“Q. Is that statement correct?
“A. Yes, sir, our statement is correct, with one exception. On statement ‘C’—
“Q. I am not talking about statement ‘B’; I am talking about statement ‘A’; is that correct?
“A. Well, statement ‘A’ has six cars included in it that are included in statement ‘C.’ It is correct, with that exception.
“Q. How did that arise?
“A. The Western Weighing and Inspection Bureau—
“Q. Was it their error?
“A. It was their error.
“Q. The document marked ‘C,’ have you got that before you?
“A. Yes.
“Q. What have you to say as to the correctness of that?
“A. It is correct, with the exception of six cars which are included in document ‘C’ and also included in document ‘A’.
“Q. Leaving them in document ‘A’ then, that would be — they should be deducted from ‘C’ ?
“A. Yes, sir.
“Q. Have yo.u figured what that deduction would amount to?
“A. That deduction would amount to a net credit of one forty-nine naught three.
“Q. Did you discover that difference since the case was called?
“A. We discovered this error on November 12th.
"Q. Mr. Tippin, do you know anything about how much lumber was shipped out over your road by the defendant company during the time from October 1, 1919, to October 1, 1920?
“A. I don’t know how much was shipped out over our line.
“Q. Do you know how much rough logs, rough material was shipped in to the defendant company over your line between October 1, 1919, an.d October 1, 1920?
“A. I do not.
* * *
“Q. When did you first check over these statements attached to the petition, Mr. Tippin?
“A. We prepared the statement marked exhibit ‘C’ on August 20, 1921; the total amount of that statement was five hundred and twelve dollars and sixteen cents. The Mullen Saw Mill Company acknowledged this statement—
“Q. Now I am not asking you about that. Just answer my question. I asked you when you first checked over this statement which you stated was correct?
“A. I checked that statement along in June — I believe it was August 20, 1921.
“Q. And you didn’t catch that error?
“A. And statement marked ‘C’ was made and the statement marked ‘A’ was made later.
“Q. Answer my question, please, sir; when did you discover this error?
“A. I discovered this error on November the 12th, 1923.
“Q. That was yesterday?
“A. Yes, sir.
* * *
“Q. Who made that error?
“A. This error was made by four or five of us. The. Bureau made it first and I made it second. I made it by not checking the statement back.
“Q.’ And this is the Bureau you pay to keep your records straight?
“A. That is the Bureau, yes, sir.
“Q. Why was it that you didn’t catch the. duplication of these cars the first time you checked it?
“A. I can’t tell you that.
“Q. If you checked it over carefully you would have caught that duplication, would you not? You would have caught a duplicate check on these cars, you made the statement?
“A. The statement was prepared under my instructions.
“Q. Well, you swore it was correct except for that error?
“A. It was prepared and I simply issued instructions to check this statement and give me a list of way bill references covering it.
“Q. Then you have never checked it yourself at all?
“A. No, sir, not personally; but it was checked under my instructions.
“Q. Well, then, you didn’t discover the error yourself?
“A. I discovered it personally. I checked it yesterday, the'car numbers in one statement against the other.
“Q. You handled this settlement that you have been talking about, for the railroad?
“A. That was handled through the Bureau. I approved the collection arrangement of fifty dollars a month. The Bureau made the arrangements for the payments.
“Q. Do you deny that the settlement that you had with Mr. Mullen had reference to the material or the shipments to Kelly-Mullen Lumber Company?
“A. Well, I don’t know what they had reference to.
“Q. Look at this statement I hand you with pages one and two attached, does that show the result?
“A. That shows the number of cars that were inbound without outbound shipment to apply against them. It shows the charges on the basis of the net rate or the amount paid and it shows the charges that should have been paid on the basis of the regular rate. The total amount being seven hundred and eighty-three dollars and fifty-eight cents.. It also shows a credit of two hundred and ninety-one dollars and eight cents. That has already been paid by Mr. Mullen, leaving a balance of four hundred and ninety-two dollars and fifty cents, the amount of the claim as we figured it since checking o.ver the yellow sheets.
“Q. How much less is that than you claimed the first time?
“A. The original claim was for one thousand three hundred and twenty-four dollars and thirty-seven cents, and the amount claimed is four hundred and ninety-two dollars and fifty cents.
“Q. As the result of what?
“A. Checking these yellow sheets and correcting the milling-in-transit record and preparing our statements accordingly.
“Q. So the Mullen Company is the gainer by your recheek by four hundred and eighty-one dollars and fifty cents, the difference ?
“A. They are the gainer by the difference between one thousand three hundred and twenty-four dollars and thirty-seven cents and four hundred and ninety-two dollars and fifty cents.”

The witness, Tippin, was the auditor of the plaintiff, Louisiana Railway & Navigation Company.

A. W. Hicks, travelling agent for the Western Weighing and Inspection Bureau, another witness for plaintiff, testified:

“Q. How do you get that application? Is it part of any written contract or agreement that you would not apply outbound shipments to subsequent inbound shipments? Is that included in any contract?
“A. I don’t now that that is in the contract, but it is. accepted by everybody as the correct practice. It is accepted by the Interstate Commerce Commission that a credit cannot be -given for a car in advance of the outbound movement.
* * *
“Q. If there was shipped out over the line of the L. R. & N. company more lumber, in feet, than there were logs, in feet, which came in, there cannot be any question that all of the inbound stuff was reshipped or that an equal amount of other stuff .was substituted for it, can there?
“A. Well, there can be in a certain way, yes, sir, that is, in a legal way.
“Q. Now, have you checked the weight in and the weight out, or the weight in with the weight out, to show or find out what percentage in terms of weight were shipped out as compared with what was received in during the whole time?
“A. I did not, no, sir.
“Q. Have you checked the weight in with the weight out to find out the percentage of reshipments in proportion to the shipments of rough material in for the month in which you claim we are delinquent?
“A. No, sir.
“Q. Then you don’t know nor don’t pretend to know how far the Mullen Saw Mill Company falls short of having shipped out all of the inbound or the products of the inbound rough material during the time for which you sue, do you?
"A. I can only say I know that they were short in their reshipment for the individual cars on check that was made in order not to allow them to ship before the rough material came in.
“Q. Do — you don’t now claim that they were short of total aggregate shipments, for the total aggregate time?
“A. Yes, they were.
“Q. How much?
“A. I couldn’t say.
* * *
“Q. Did your tariff give the shipper the right to substitute other lumber when it otherwise disposed of the lumber coming in?
“A. No, sir; no tariff gives that.
“Q. Have you ever read this tariff?
“A. I have, yes, but I don’t recall that in there.
“Q. Please read into this record at this time this point that I indicate to you, first and second lines.
“A. ‘In the event the manufactured product is less than the required percentage there should be added sufficient outbound — ’ ”

Against this testimony offered on behalf of plaintiff Mr. Y. M. Marr testified on behalf of defendants:

“Q. State what check you made, if any, of the inbound and outbond shipments in your capacity as traffic manager for this company.
“A. Why I checked up that inbound and outbound from the time they commenced operation until they closed.
“Q. What have you to say with reference to the comparative amount reckoned in terms of logs shipped into this Mullen mill and the lumber shipped out from the Mullen sawmill over the L. R. & N. Company between the 8th day of December, 1919, and the 16th day of April, 1921?
“A. Well, we shipped out a few thousand feet more than we got in.
* * *
“Q. Did you make any condition with Mr. Hicks, at the time you were making this joint investigation, to settle this matter, -did you make any contention with him that he was claiming too much for the railroad?
“A. I did.
“Q. As a matter of fact, don’t you know that the investigation was made according to these pages here, and settlement or partial settlement was made * * * didn’t you tell Mr. Hicks you were going to say to Mr. Mullen that the railroad company’s claim for this amount was correct?
“A. That is, on the settlement of fifty dollars a month?
“Q. Yes.
‘‘A. At that time that was supposed to have settled it.
“Q. But didn’t you say that?
“A. It was settled then at that time.
“Q. Yes, settled by you. Now then, all of these demands or claims were worked up after you and Mr. Hicks had separated, were they not?
“A. After we had settled, yes.”

J. M. Mullen, president of the defendant sawmill company, testified:

“Q. To whom did you make that payment of $291.08 alleged to have been made?
“A. Well, I was told—
“Q. To whom, on behalf of the L. R. & N?
“A. I was told that that was a balance I owed.
“Q. To whom did you pay it?
“A. The railroad company.
“Q. ' Why was there not more finished product resulting from the manufacture of these iogs that you got over the L. R. & N?
“A. Well, the worms had eaten them up and we couldn’t get enough out of them to pay for putting them through the mill.
“Q. What did you do in the way of substituting other finished products in the place of these logs that were ruined and shipping it out over the L. R. & N?
“A. Well, we shipped out the logs that came in over the K. C. and the T. & P.; we shipped them out over the L. R. & N.
“Q. Did you not ship out over the L. R. & N. all of the merchantable manufactured products from the logs that came in over the L. R. & N?
“A. Yes, sir.
“Q. And more besides?
“A. And more besides.
“Q. Well, you are positive that you shipped out everything that you promised to ship out over the L. R. & N.; you are positive of that?
“A. Yes, sir; the traffic manager, Mr. Marr, handled that, though.”

The testimony of plaintiff’s witnesses and that of defendants’ witnesses is conflicting, but the District Judge who heard them testify and observed their demeanor on the witness stand gave judgment in favor of the contention of the defendants, and we are unable to say that his finding is incorrect.

Defendant J. L. Mullen Saw Mill Company, Inc., claims in reconvention $291.08 paid by it to plaintiff, and alleged to have been paid by it in error. But defendants specifically allege that the payment was made “as a compromise settlement” of a larger amount claimed by plaintiff and for which defendants denied liability.

“* * * with the understanding and agreement on the part of the plaintiff company that the remainder of the claims and demands herein sued for should be remitted and released.”

The District Judge disallowed the reconventional demand and under the evidence we are unable to say that the payment was made in error.

Finding no error in the judgment appealed from, it is ordered, adjudged and decreed that it be affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2545
    Second Circuit
    POPE HARTWELL HOLMES v. LONGSTREET STATE BANK
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Deposit—Par. 7, 8; Banks and Banking — Par. 46.
    A bank receiving bonds of the United States on deposit for safe keeping without remuneration will be required to return them or their value to the owner in the absence of legal excuse for failure to return them other than that it has lost or mislaid the bonds.
    Duvis vs. Ciaccio, 12 Orl. App. 341.
    Boyd vs. Estis, 11 La. Ann. 704.
    Dun vs. Branner, 13 La. Ann. 452.
    Appeal from • the Eleventh Judicial District Court, Parish of DeSoto. Hon. Hal Burgess, Judge.

      Action by Pope Hartwell Holmes against Longstreet State Bank.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lee and Williams, of Mansfield, attorneys for plaintiff, appellee.
    Parson and Colvin, of Mansfield, attorneys for defendánt, appellant.
   REYNOLDS, J.

Plaintiff sues defendant for $165.00 as the value of two United States bonds, one for $50.00 and the other for $100.00, with interest coupons attached for $15.00, with legal interest from judicial demand. He alleges that he deposited the bonds with defendant for safe keeping and that defendant had refused to return them notwithstanding demand.

Defendant prayed oyer of the receipt alleged to have been given by it to plaintiff and filed an exception of no cause of action. ' Both motions were disposed of by the court.

Defendant then filed an answer denying liability and alleged that it was not liable for the reason that it was a gratuitous depository of the bonds under a receipt reading as follows: “These bonds left for safe keeping in vault only at owner’s risk.”

On these issues the case was tried and there was judgment in favor of plaintiff as ■prayed for. Defendant moved for a new trial and the motion was overruled. Defendant appealed.

OPINION.

The prayer for oyer was properly disposed of by the trial court and the receipt oyer of which was asked is in the record.

The exception of no cause of action was properly overruled. Plaintiff alleged that defendant had received the bonds on deposit for safe keeping and failed to return them to him on demand. Plaintiff was entitled to the bonds or their value in the absence of a legal excuse for not returning them.

Short vs. Lapeyrouse, 24 La. Ann. 45.

The motion for new trial was properly overruled. The alleged newly discovered evidence was merely cumulative of that introduced in paragraph 11 of defendant’s answer—

“That about the same time respondent received under the same conditions, a number of Liberty Bonds from Ewell Holmes, the father of the plaintiff, and from Miss - Holmes, a sister of the plaintiff, and that your respondent believes, and so believing, avers that when it returned said bonds to the said Ewell Holmes and said Miss Holmes, that through error and inadvertence your respondent’s cashier, D. B. Pullen, at the same time delivered the bonds of the plaintiff to the said sister or father of the plaintiff, who received the same for and with the consent of the plaintiff.”

ON THE MERITS.

It is not disputed that defendant received from plaintiff on deposit to be returned on demand two United States Government bonds of the denomination of $50.00 and $100.00, respectively, with interest coupons attached to the amount of $15.00, and that defendant failed to return the bonds to plaintiff on demand.

Under the law the defendant was under obligation to restore the bonds to plaintiff or pay him their value or give a, legal excuse for its failure to return them.

The only excuse offered by defendant for its failure to return the bonds is that it has lost or mislaid them. This is not a legal excuse.

The judgment appealed from is correct and is affirmed.


text:
    No. 2541
    Second Circuit
    WHELESS AUTO SUPPLY CO., INC., v. HEROLD
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Quasi Contracts — Par. 5.
    An automobile mechanic making repairs to an automobile without the authorization and against the will of the owner is not entitled to remuneration therefor and has not the right of a negotiorum gestor.
    Mulligan vs. Kenny, 34 La. Ann. 50.
    Appeal from the City Court of the City of Shreveport, Parish of Caddo. Hon. David B. Samuel, Judge.
    Action by Wheless Auto Supply Company, Inc., against A. A. Herold.
    There was judgment for defendant and ¡plaintiff appealed.
    Judgment affirmed.
    Melvin F. Johnson; D. C. Scarborough, Jr., of Shreveport, attorneys for plaintiff, appellant.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sues defendant for $291.48, balance alleged to be owing for material furnished and labor performed by plaintiff for defendant in repairing an automobile.

Defendant denied liability and alleged that the amount sued for represented labor performed and material furnished in excess of that authorized by him and over his objection.

He further alleged that he had paid, under protest, for more labor performed and material furnished in repairing the automobile than had been authorized by him.

On these issues the case was tried and there was judgment for defendant and plaintiff appealed.

OPINION.

The case presents for our decision only a question of fact, namely,, whether the labor and material, the price of which is sued for, were contracted for by defendant or whether they were furnished without his authorization and over his objection.

The evidence discloses that defendant delivered to plaintiff his automobile to tighten up the parts, clean out carbon and adjust the tappets, which should not have taken over three hours’ labor of one mechanic and should have been done for a nominal cost, and that defendant subsequently authorized plaintiff to rebore the cylinder block for the agreed price of $36.00, and instructed plaintiff not to do any other work or furnish any other material on the automobile.

Notwithstanding defendant’s instructions plaintiff performed work or furnished material in the repair of the automobile for which he rendered defendant a bill amounting to $441.48.

Defendant paid plaintiff $150.00 on the bill, alleging at the time that this was more than the value of the repairs he had authorized and denied liability for the balance of the amount claimed and refused to pay it. Whereupon plaintiff brought this suit.

As to the claim sued for herein, defendant testified:

“Q. Doctor, did you authorize anything to be done about your car other than the tightening of the parts, the cleaning out of the carbon, the adjusting of the tappets, and the reboring of these cylinder blocks?
“A. Nothing else was authorized.
“Q. Did you tell them that nothing must be done other than that, without first getting your consent?
“A. I did, and, I insisted upon it.
“Q. I will ask you this: did you tell them specifically not to do it, and that you would not pay for it?
“A. Not to do anything without first consulting me.
“Q. Was this done without consulting you?
“A. Yes, sir; a large part of it.
“Q. Was anything other than tightening up the parts, cleaning out the carbon, adjusting the tappets and reboring of the cylinders or cylinder blocks authorized by you in connection with this work?
“A. No, sir; but I realized when they took it down to rebore the cylinders that it necessarily would be expert work, that is why I paid them as much as $150.00.
“Q. When you first sent your car there it was to be a three-hour job?
“A. Yes, sir.
“Q. Then, afterwards, they called you up and wanted to rebore the cylinders?
“A. Yes, sir.
“Q. And you had a distinct understanding with them as to that?
“A. Yes, sir.
“Q. And you told them at the time not to do anything else?
“A. Yes, sir; not without letting me know.
“Q. When you came back you found that they had done something else without letting you know?
“A. Yes, sir; they had all of these parts laid out.
“Q. At the time that you found your car with all of the parts out, had you given any such instructions to the Wheless Auto Supply Company?
‘A. No; I had no idea that they had to buy all of .those parts.
•‘Q. That is not the question. Had you instructed them to do any such work as would call for those parts?
■ “A.. No, sir.
“Q. I will ask you, then, this question: had you told them prior to that, not to do anything without first taking it up with you?
“A. I did.
“Q. When you found all of these parts that were there, you found them doing something that you had not instructed them to do?
“A. Yes, sir.
••Q. And you asked on whose instructions they were doing the work without first getting your consent?
•‘A. Yes, sir.
“Q. Now, doctor, I will ask you this pointed question: I would like for you to state positively one way or the other: did you at that time make the statement that counsel has cross-examined you about, namely, that you would not pay any two or three hundred dollar bill.
“A. Yes, sir.”

This testimony was accepted by the trial court as true and we also accept it as true, and under the evidence we are convinced that the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 3074
    Second Circuit
    TRADERS SECURITIES CO. v. HEART-FIELD ALLEN DRUG CO., INC., ET AL.
    (March 27, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 544, 598, 694.
    'Where a case is submitted without argument and without brief and the record apparently sustains the judgment appealed from, the judgment will be affirmed.
    Cayton vs. Redman, 4 La. App. 451.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by Traders Securities Company against Heartfield Allen Drug Company, Inc., and C. C. Allen.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    William H. Cook, of Shreveport, attorney for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this action plaintiff seeks to recover judgment against the defendants in solido for the sum of $596.00 with interest at the rate of 5% per annum on $119.30 thereof from October 31, 1924, and like interest on a like amount from December 31, 1924, and like interest on a like amount from February 28, 1925, and like interest on a like amount from April 30, 1925, and like interest' on a like amount from July 31, 1925, until paid, on ten trade acceptances for the sum of $59.60 each, all dated July 31, 1924, all drawn by Blackstad, Inc., on “Allen’s Pharmacy” and accepted by it, drawn payable to drawer’s order, two in three months, two in five months, two in seven months, two in nine months, and two in twelve months after their date, and acquired by plaintiff for value and in due course before maturity.

Defendants admitted execution of the acceptances and alleged that they were obtained by fraud and misrepresentation and that Blackstad, Inc., and Traders Securities Company though separate legal entities were for all practical purposes one and the same institution for the reason that the shares of stock in the latter were owned by the stockholders in the former corporation.

On these issues the case was tried and there was judgment in favor of the plain'tiff Traders Securities Company, and against Heartfield-AUen Drug Company, Inc., for $596.00 with legal interest from March 1, 1925, until paid, and all costs, and the defendant Heartfield-Allen Drug Company, Inc., has appealed.

OPINION.

The pleadings and evidence make out a case for plaintiff. The evidence introduced by defendant does not show that the acceptances were obtained by fraud or misrepresentation or that plaintiff and Blackstad, Inc., are one and the same entity.

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


text:
    No. 2796
    Second Circuit
    ARIAN v. WENZEL
    (March 27, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Evidence—Par. 58, 59; Bills and Notes — Par. 222.
    Where the defense to a suit on a promissory note is that the payee agreed that it only should he paid out of the revenues derived from an oil well drilled or to be drilled, the burden is on the defendant to establish the defense.
    Wade vs. Henry, 3 La. App. 190.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by John B. Arian against Victor Wenzel.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Arthur A. LeRosen, of Shreveport, attorney for - plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit on two promissory notes signed by defendant, both dated March 28, 1922, both drawn payable to the order of plaintiff, one for $1000.00, due six months after its date, and the other for $100.00 due six months after its date, both bearing interest at the rate of 8% per annum, the former from September 27, 1921, and the latter from December 5, 1921.

Defendant denied liability, and alleged that defendant was engaged in drilling a well for oil on property in which plaintiff owned an undivided interest and that it was agreed between him and plaintiff that in case the well should turn out to be a producing well the notes should be paid, otherwise they should be returned to him, defendant.

On these issues the case was tried and there was judgment for plaintiff as prayed for and defendant appealed.

OPINION.

Defendant having admitted the execution and delivery of the notes and the notes heing filed in evidence, plaintiff’s case was made out and to defeat recovery it devolved upon defendant to prove his defense.

Defendant testified that it was agreed between himself and plaintiff that in event a well that he was then drilling on land in which plaintiff was interested should not produce oil in paying quantities he should not be required to pay the notes and that they would be returned to him, and that the well did not produce oil in paying quantities.

Plaintiff testified that there was not any such agreements and that the notes were given by defendant unconditionally. In this plaintiff is corroborated by the testimony of Theo. Mix, Otto Hauser, and Ed. Beier.

The burden was on defendant to establish his defense by a preponderance of the evidence. He has failed to discharge that burden.

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


text:
    No. 2563
    Second Circuit
    McBRIDE v. ELAM
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1'. Louisiana Digest — Sales—Par. 54, 55.
    A sale of “all that portion of the following described tract of land that lies west of the Mansfield-Logansport dirt road, said entire tract having been purchased by T. R. Patrick from Mrs. M. F. Williams and by him sold to Joseph B. Elam; said entire tract described as commencing 20.00 chains south and 26.00 chains west of the northeast corner of 19 Township 12 North Range 13 West and running thence north 10.22 chains, to right of , way of Texas & Pacific Railway; thence northwest with railway to point 16.60 chains north of the southwest corner of the NW14 of the NE%. of said section 19; thence south 16.60 chains; thence east 14.00 chains to beginning; nineteen acres, more or less. The part of said tract hereby sold being that part lying west of said dirt road, containing 7.50 acres, more or less” is by the acre and not per aversionem.
    Civil Code, Article 2492.
    Boyce vs. Cage, 7 La. Ann. 672.
    2. Louisiana Digest — Fraud—Par. 3, 10; Evidence — Par. 58, 59.
    He who alleges error or fraud in the confection of a sale carries the burden of proving it, and in the absence of proof of either parol evidence is inadmissible to vary clear and unambiguous terms of a deed.
    Charrotte vs. Louisiana College, 1 La. App. 438.
    Appeal from the Eleventh Judicial District Court, Parish of DeSoto. Hon. Hal A. Burgess, Judge.
    Action by Mrs. Fairy C. McBride against Joseph B. Elam.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Craig, Bolin and Magee, of Mansfield, attorneys for plaintiff, appellee.
    Lee and Bell, of Mansfield, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues defendant for $231.00 with legal interest from judicial demand. She alleges that he sold her seven and one-half acres of land, more or less, for the price of $1,021.22 and only delivered to her 5.68 acres. The act of sale from defendant to plaintiff described the land sold as follows, to-wit:

“All that portion of the following described tract of land that lies west of the Mansfield-Logansport dirt road, said entire tract having been purchased by T. R. Patrick from Mrs. M. F. Williams and by him sold to Joseph B. Elam; said entire tract described as commencing 20.00 chains south and 26.00 chains west of the northeast corner of Section 19 Township 12 North Range 13 West, and running thence north 10.22 chains to right of way of the Texas & Pacific Railway; thence northwest with railway to point 16.60 chains north of the southwest corner of the N¥)4 of the NE% of said section 19; thence south 16.60 chains; thence east 14.00 chains to beginning, nineteen acres, more or less. The part of said tract hereby sold being that part lying west of said dirt road, containing 7.50 acres, more or less.”

The price expressed in the deed is $1021.22, of which $721.22 is recited to have been paid in cash and the remainder of $300.00 by a promissory note dated with the act, due one year after its date, bearing interest at 8 per cent from its date until paid, signed by the plaintiff and drawn payable to her own order and by her endorsed in blank and the payment of which was secured by a vendor’s privilege retained on the land.

The defense is that prior to the sale he had contracted in writing to sell the plaintiff the same tract of land for the price of $937.50, of which $150.00 was paid in cash and the remainder was to be paid in monthly installments of not less than $25.00 each with 8 per cent per annum interest from date of the contract until paid, and that on August 27, 1923, she having paid him the price the act of sale in question was executed. That the representation therein that a note for $300.00 had been given by her to him to represent a part of the price was untrue and that the note was retained by plaintiff for the purpose of borrowing money thereon for her own account and that the arrangement was entered into solely for the convenience and benefit of the plaintiff.

That prior to entering into the contract of sale with plaintiff he or his agent went with her to the land and pointed out to her the tract of land described in the act of sale as seven and a half acres, more or less, and that thereupon she agreed to buy and he to sell her that particular tract of land without regard to its area for the price of $937.50. That prior to entering into the contract of sale he informed- plaintiff that, in his opinion, the area of the tract was only five and a fraction acres. That when the act of sale was being prepared plaintiff contended that the area was seven and a half acres, more or less, and insisted that the act of sale so recite and accordingly it was made to do so. That her demand was predicated upon measurements of the tract made - by her prior to the contract of sale whereby she had calculated that the tract contained seven and a half acres, more or less.

That the insertion in the act of the declaration in respect to the tract of land “containing 7.50 acres, more or less” was an inadvertence and done to oblige plaintiff; that the sale was por aversionem and not by the acre; and if the declaration “containing 7.50 acres, more or less” was allowed to operate to the benefit of the plaintiff it would have the effect of enabling the plaintiff to perpetrate a legal fraud on defendant.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant as prayed for by plaintiff and defendant appealed.

OPINION

The only question presented for our determination is whether the act of sale from defendant to plaintiff imports a sale per aversionem or by the acre.

Tne act is clear and unambiguous .and translates the title to a tract of land having definite boundaries and declares it to contain seven and a half acres, more or less.

Therefore the sale was one by the acre and not per aversionem, and unless the “containing 7.50 acres, more or less” were inserted in the act through fraud on the part of plaintiff, defendant must suffer a diminution of the price received proportionate to the discrepancy between the area sold and that delivered, or 7.84 acres.

Conceding that plaintiff, as alleged by defendant, asserted that the area of the tract was 7.50 acres and insisted on that area being declared in ■ the act, she was net guilty of any fraud, for she had been informed by defendant's agent, Thomas R. Patrick, that that was the area of the tract. Patrick’s testimony was taken under commission on behalf of the defendant, and he .was asked:

“If you state that you carried on negotiations with Mrs. McBride for the sale of the property to her, then did you state to her at any time what, in your opinion, was ■ the contents of acreage in the tract which she wanted to buy?”

To which he answered:

“Yes, I told her there was approximately seven and one-half acres, and that for her satisfaction she could have • it surveyed and figured out, but she and Mr. Cook did the measuring and bought the land, knowing all the boundary lines.”

And again:

“Did you, in any negotiations with Mrs. McBride, tell her that the tract which she wanted to buy contained seven and one-half acres, and was the price made to her based upon the acre or was the price a lump sum made for the whole of the tract which she desired to buy?”

And he answered:

“No, I never told her at any time that there was seven and a half acres in the tract, but that there was approximately that, and the price made her was for the tract of land and not per acre. It was a lump sum for the whole tract which she desired to buy.”

This- witness was the agent of the defendant in negotiating the sale from him to plaintiff. Upon these representations of his she was warranted in declaring at the time the act of sale was drawn that the tract contained seven and a half acres, as defendant says she did, and in insisting that the act specifically declare that area.

The evidence relied on by defendant to prove his contention that a fraud was practiced on him in making the act declare “containing 7.50 acres, more or less” is insufficient for the purpose, and in the absence of adequate proof the act must stand as written.

The judgment appealed from is correct and is therefore affirmed.


text:
    No. 3108
    Second Circuit
    KARAM JOHN, ET AL., v. LIBERTY GROCERY CO., ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625, 636.
    Where the evidence is conflicting as to whether rent claimed to be due on open account has been paid, the finding of the trial court will not be disturbed unless manifestly erroneous.
    The Item Co., Ltd., vs. Hereford, Inc., 1 La. App. 288.
    2. Louisiana Digest — Evidence—Par. 58, 59, 351; Landlord and Tenant — Par. 92.
    The burden is on a lessee to prove by a preponderance of the evidence that rent claimed by his lessor has been paid.
    Valdoz vs. O’Keefe, 2 La. App. 362.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. Robert Roberts, Judge.

      Action by Karam. John, et al., against Liberty Grocery Company, et al.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed.
    W. H. Scheen, of Shreveport, attorney for plaintiffs, appellees.
    Dimick and Hamilton, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiffs, Karam John and Joe Maroun, being the owners in indivisión of the premises 127 Texas street in the City of Shreveport, Louisiana, each of them leased his undivided interest in the premises to .Liberty Grocery Company, a commercial partnership composed of Soleyman Gabriel Soleyman and Elias Thomas, for the year 1926 at a monthly rental of $100.00 for the interests of both or $50.00 a month for the interest of each, each of them collecting the rent for his share of the property.

And by one act of lease each of the co-owners also leased his undivided half of the premises to the same defendant for three years, beginning January 1, 1927, at $150.00 per month for the interest of both of them or $75.00 per month for the interest of each, taking therefor seventy-two notes for $75.00 each, thirty-six payable to the order of Karam John and an equal number payable to the order of Joe Maroun, one of each set maturing February 1, 1927, and one of each set on the' first day of each of the next succeeding thirty-five months.

The lease stipulates for payment of interest on the rent at the rate of 8% per annum from its maturity until paid and for 10% attorneys’ fees in event of the employment of an attorney to collect the notes. It further provides that failure to pay the rent for three months shall have the effect of maturing all unmatured notes.

Plaintiff, Karam John, in this action seeks to recover judgment against the defendants in solido for $180.00, balance of rent alleged to be due him by them on his undivided half of the premises for the year 1926, and both he and his co-plaintiff, Joe Maroun, seek judgment against the same defendants in solido for $5325.00, being the amount of seventy-one promissory notes, one of each series, maturing March 1, 1927, and one of each series maturing on the first day of the next succeeding thirty-five months.

Plaintiffs also procured a writ of provisional seizure to be issued under which a stock of merchandise and store fixtures situated in the leased premises were seized.

They further alleged that the stock of merchandise and store fixtures had been seized by the sheriff under a fi. fa. issued upon a judgment recovered by the Fowler Commission Company against the defendants and that by reason of their lessor’s privilege they were entitled to be paid out of the proceeds of the sale of the seized property in preference to the Fowler Commission Company.

And they prayed that the Fowler Commission Company be made a party defendant and duly served and cited and for judgment against the Liberty Grocery Company and the individual members thereof in solido for the debt sued for with recognition of their lessor’s privilege on the property seized and that the writ of provisional seizure be sustained and that they be decreed entitled to be paid out of- the proceeds of the sale of the seized property in preference and priority to the Fowler Commission Company.

Defendants Soleyman and Thomas denied that they were indebted to plaintiff, Karam John, in the sum of $180.00 as balance of rent for the year 1926, and alleged that they were indebted to him on that account only in. the sum of $75.00; and they denied that they were indebted to either of the plaintiffs in any sum on account of rent for the year 1927 at the time the suit was brought, and alleged that nothing would be due Karam John on that account until March 1, 1927, and that plaintiff, Joe Maroun, had been paid rent for the year 1927 for the months of January, February, March and April, or a total of $300.00, and also the further sum of $80.00.

And assuming the character of plaintiffs in reconvention they alleged that the provisional seizure was illegal and that in consequence plaintiffs had evicted them from the leased premises and they prayed that the lease be dissolved.

The defendant, Fowler Commission Company, Inc., answered alleging that all that was due plaintiffs at the time of the filing of the suit was $180.00, that plaintiffs had illegally ousted defendants from possession of the leased premises and thereby dissolved the lease, and that it was entitled to the proceeds of the sale of the seized property in preference to plaintiffs after satisfaction of 'plaintiffs’ claim to the extent of $180.00.

On these issues the case was tried and there was judgment in favor of the plaintiff, Karam John, and against the defendants, Liberty Grocery Company, Elias Thomas and Soleyman G. Soleyman, in solido, for the sum of $180.00, for balance of rent for the year 1926, and for the further sum of $64.29, balance of rent for the month of February, 1927, with 8% per annum interest thereon from February 24, 1927, and 10% additional as attorney’s-fees, and sustaining the writ of provisional seizure; and there was judgment in favor of the plaintiff, Joe Maroun, sustaining the writ of provisional seizure but rejecting his demand for rent; and there was judgment in favor of the defendants and against the plaintiffs cancelling the lease as of date February 24, 1927; and there was judgment in favor of the plaintiff, Karam John, and against the defendant, Fowler Commission Company, Inc., decreeing the privilege of the former on the proceeds of the sale to be superior to the privilege of the latter thereon and ordering the sheriff to pay the judgment of Karam John out of such proceeds by preference over the judgment of Fowler Commission Company, Inc.

The defendants were taxed with the costs.

The Fowler Commission Company, Inc., appealed.

The other defendants did not appeal.

In its petition for an order of appeal the Fowler Commission Company, Inc., says:

“That it is entitled and desires to appeal from said judgment, inasmuch as same allows plaintiff, K. John, preference for the sum of $180.00 in the payment of the proceeds derived from the sale of defendants’ cause (property).”

Plaintiffs have moved in this court to dismiss the appeal on the ground' that both the motion for the appeal and the filing of the appeal bond were too late and for the further reason that the fund in the hands of the sheriff had been distributed.

OPINION.

O'N THE ’ MOTION TO DISMISS.

The motion to dismiss the appeal must be denied.

The order granting the appeal fixed the devolutive appeal bond at $200.00 and the suspensive appeal bond “according to law.” The bond given is in the penalty of $600.00, and while it came too late as a suspensive appeal bond it was ample both as to amount and time of filing to serve as a devolutive appeal bond.

ON THE MERITS.

The only question presented for our consideration by the record is the correctness of the judgment in allowing Karam John $180.00 as balance of rent for the year 1926 and $64.29 on account of rent for the month of February, 1927, and ordering the amounts paid out of the proceeds of the sale of defendants’ property in preference to the judgment of Fowler Commission Company, Inc.

The evidence on the question of indebtedness of defendants to plaintiff Karam John is conflicting and was given in broken English. The defendants contended that they had paid the rent and the burden was on them to show by a preponderance of the evidence that they had. Both plaintiffs swore positively that the $180.00 balance of rent for the year 1926 was unpaid and both defendants swore positively that it had been paid.

Karam John testified:

“Q. Did he pay you all rent for 1926?
“A. No; left $180.00.
* * *
“Q. How much does he owe you for 1926?
“A. He owed me $700.00 and he owed me he transfer to me, he owes me $180¡00 being left, you got it on your list there; he transfer $80.00 to T. R. Cohn and four hundred forty L. A. Fields and leave me one hundred and eighty dollars balance 1926.”

Elias, Thomas, one of the defendants, testified:

“Q. Now did you or Mr. Soleyman owe K. John any rent for 1926?
“A. I don’t believe so; asked one time, did we owe any, he says, don’t owe anything.
“Q. You didn’t have any notes on your former lease?
“A. No.
“Q. Keep any receipts?
“A. No, sir; never had no receipts.
“Q. You just paid the rent, is that it?
“A. Yes, sir.
* * *
“Q. Thomas, you didn’t keep up with the books ?
“A. No, sir.
“Q. You don’t know whether you owed anything or not?
“A. I asked if owed him nothing when went to make the lease we don’t owe a penny for last year at all.”

The burden was on defendants to prove payment. The District Judge who heard and observed the witnesses testify and doubtless could better understand their broken English than we can was of opinion that the $180.00 balance of rent for the year 1926 claimed by plaintiff, K. John, was not paid, and we are unable to say that he erred.

As to the $64.29, rent for the year 1927, allowed by the court, there is no dispute.

But appellant, Fowler Commission Company,- Inc., contends that no privilege existed on the property seized for the rent of the year 1926 for the reason that that rent was owing, if at all, for two buildings, namely, 127 and 129 Texas street, whereas only one building, namely, 127 Texas street was leased for 1927 and all of the goods seized were found on the premises 127 Texas street.

As the property when seized was still on part of the premises leased by Karam John to defendants for the year 1926 and for which the rent claimed was due the lessor’s privilege bore on the property as effectively as if part of it had been found in one store and the remainder in the other.

The judgment appealed from is correct and accordingly it is affirmed.


author: CLAIBORNE, J.

text:
    No. 11,323
    Orleans
    THERMO ELECTRIC CO. v. DAUTERIVE
    (June 18, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Evidence—Par. 340, 351.
    The testimony of two unimpeached witnesses will prevail over that of one witness of like character.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Thermo Electric Co. against A. B. Dauterive.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Elias Bowsky, of New Orleans, attorney for plaintiff, appellee.
    Thos. E. Furlow, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for the price of incubators and brooders which the plaintiff sold and delivered to the defendant.

The plaintiff alleged that on March 12, 1927, and on April 4, 1927, it sold to the defendant 15 incubators and 13 brooders for the price of $359.60, upon which defendant paid $89.90, leaving a balance due of $269.70, which defendant fails to pay and for which plaintiff claims judgment.

The defendant admitted' that he purchased and received from plaintiff three incubators for the price of $318 and two 500-chick hovers for the price of $20.80 each, on account of which he paid $89.90, leaving a balance of $269.90 which, however, he does not owe for the following reasons:

I. That the incubators and hovers were guaranteed to serve the purposes for which they were sold, and

II. That the plaintiff agreed, that if at any time defendant desired to return the incubators and hovers plaintiff would take them back and refund to defendant the portion of the price paid by him;

III. That defendant attempted to use said incubators and hovers, and it was found that in one of them there was a short circuit which rendered it unfit for use and dangerous.

IV. That he is unable to state that the remaining two incubators or hovers, which appear to be in good condition, are serviceable because there was irregular and uncertain voltage of electricity furnished by the Public Service Company.

V. That he knows that one incubator and hover is inefficient and dangerous, but does not know whether the other two are the same, and that he should not be made to pay until their efficiency is established.

VI. That he is entitled to he refunded the $89.90 paid by him.

In a supplemental answer defendant alleged that Mrs. Bendler, the representative of plaintiff, stated to him “that in the event he could not get satisfactory and efficient electrical service the plaintiff would take them back and would refund the amount paid by him; and that at no time was he able to get such service.

There was judgment in favor of plaintiff for the amount claimed, $269.70, from which the defendant has appealed.

The first and most important question in this case is the extent of the “guarantee” or promise made by the plaintiff to the defendant prior to the sale.

The defendant, A. B. Dauterive, testifies as follows:

“I .purchased them and before getting them I went back to her (Mrs. Bendler) and told her I was afraid of the incubators on account of the electric service; she said in case we do not get it, they would take them back and refund the money. She guaranteed the incubators to give as good a hatch as any on the market, and if we were not satisfied and could not get electricity she would take back the machines and refund what we paid. She assured me she would take them back if I could not get the service. * * * If the incubators were not satisfactory in any way, or if we could not get proper service from the electric company she would take back the incubators and refund me the deposit which she failed to do when I would not risk any more eggs in there. The guarantee was that she would let me return the incubators.”

P. B. Dauterive, a brother of A. Dauterive, testified as follows:

“My two brothers, this one and the other, we called at the office of Mrs. Bendler in regard to taking incubators. We were together in the chicken business and Mrs. Bendler stated that these incubators were mostly on trial, that is, if we purchased them, because we were all so afraid of the electric incubators on account of the juice, so Mrs. Bendler then stated that if the incubators did not prove absolutely satisfactory and if we did not get the proper service from the lights we were not supposed to take the incubators and she would refund the money * * * She stated if we did not get the proper service we were not supposed to keep the incubators and we told her we did not care to have them because we were afraid of the service. She stated if we did not get the proper service she would take them back.”

Mrs. Bendler was the secretary-treasurer and manager of the plaintiff company.

The testimony is abundant that the electric service was deficient.

Mrs. Bendler denies that she gave any such guarantee or made such a promise. But according to rules of evidence and according to probabilities the court is bound to conclude that Mrs. Bendler did make such a .guarantee. Therefore it is immaterial if the defendant fails in his other defenses. Defendant’s testimony is fortified by the fact that he is an engineer and that his former occupation was that of a “chemist and operating sugar factory entirely operated by electricity.” It is not probable that the incubators did not work for any fault of his.

It is therefore ordered that the judgment herein be reversed and set aside and it is now ordered that there be judgment in favor of the defendant rejecting plaintiff’s demand at his cost in both courts. It is further ordered that there be judgment condemning the plaintiff the Thermo Electric Company, Inc., to pay to the defendant, Alfred B. Dauterive, eighty-nine and 90-100 dollars with five per cent per annum interest from October 13, 1927, until paid and all costs of suit.


text:
    No. 2534
    Second Circuit
    LAKE END LUMBER CO. v. WASHINGTON
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Timber—Par. 1, 3, 6.
    Where a deed to standing timber failed to fix a time for its removal, the right to remove the timber remains in the grantee indefinitely, until a reasonable time has been fixed by agreement between the owner of the land and the owner of the timber or by judgment of the court.
    Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 971, 90 So. 275.
    Appeal from the^Tenth Judicial District Court, Parish pf Natchitoches. Hon. John F. Stephens, Judge.
    Action by Lake End Lumber Company against A. L. Washington.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    James W. Jones, Jr., of Natchitoches, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

The Lake End Lumber Company, a partnership composed of J. B. Hutchinson and C. M. Hutchinson, alleging themselves to be the owners and in possession of all of the cypress timber lying, standing and being on NE1^ of NE%, E% of SE% of NE%; W% of SE% of NEJ4; WV2 of NE%; of NW%; NE14 of SW14; and NWJA of SE% of Section 24 Township 10 North Range 10 West, situated in, Natchitoches Parish, Louisiana, by purchase in good faith from William M. Cady by act dated February 14, 1922, recorded in Bock 150 at page .416 of the conveyance records of Natchitoches Parish, Louisiana, and that A. L. Washington was cutting and removing the .timber and had refused to desist therefrom notwithstanding repeated requests from them, brought this suit to obtain a judgment perpetually enjoining him from cutting or removing and from attempting to cut or remove any more of said timber; and upon making affidavit and giving bond a temporary restraining order was issued.

The defendant answered the suit, admitting the alleged cutting and removal of timber as alleged and asserting that he owned the timber and had a legal right to do so. And he alleged—

“Further answering, your defendant shows that William Washington, the father of your defendant, and from whom your defendant inherits together with his co-defendants and the surviving spouse of the said William Washington * * * did sell to the Caldweil-Norton Lumber Company, as per act of sale recorded in book 124, folio 111 of the records of the parish of Natchitoches, the timber described as the cypress timber on the lands described in plaintiff’s petition. That no stipulation of time was designated for the cutting of said cypress timber and that more than sixteen years have elapsed since the execution of the said sale of said timber, and more than a reasonable time having elapsed since the date of said sale for the removal of said timber, that said timber now reverts to your petitioner and the heirs of William Washington.”

On. these issues the ease was tried and there was judgment perpetuating the temporary restraining order and forever prohibiting the defendant from further cutting or removing any cypress timber standing, lying or being on the lands described in the petition and reserving to the plaintiff the right to sue defendant for the value of such timber as he had cut of removed.

The defendant appealed.

OPINION

Plaintiff’s author in title purchased the cypress timber on the land described in the petition from defendant’s father, William Washington, who owned both the land and the timber, by a deed which failed to fix a time for its removal, and plaintiff not having removed the timber and defendant conceiving that a reasonable time for its removal had expired proceeded to cut and remove it himself on the theory that plaintiff’s right to do so had terminated by mere lapse of time.

The fact that no period was fixed by the deed within which the timber should be removed in no manner affected its validity. The omission might have been supplied on application to the proper court, or by agreement between the owner of the land and the owner of the timber. Until a period is fixed by agreement of the parties or by the proper court upon application to it, the right to remove the timber remains in the grantee indefinitely. And until a time limit has been fixed, and has expired, the owner of the land on which the timber stands has no cause of action to have the timber declared forfeited to him, or that the vendee’s title to the timber has expired.

Simmons vs. Tremont Lumber Co., 144 La. 719, 81 So. 263; Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 971, 90 So. 275.

As the deed under which the plaintiff acquired title to. the timber fixed no time limit within which it should be cut and removed and as no limit was fixed by agreement of the parties or judgment of the proper court the title to the timber is still in plaintiff and its right to cut and remove the same still subsists and defendant had no title to nor right to cut or remove any of it.

The judgment appealed from is correct and accordingly- it is affirmed.


text:
    No. 2586
    Second Circuit
    McDADE v. FULBRIGHT
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles — Par. 6(a); Master and Servant — Par. 164,-166; Mandate — Par. 80.
    The owner of an automobile is not liable in damages for injuries caused by its being negligently operated by one not shown to have been at the time of the injury his employee or agent and acting within the scope of his employment or agency.
    Tinker vs. Hirst, 162 La. 209, 110 So. 324.
    Bardt vs. Champon, 6 La. App. 763.

      Appeal from the Second Judicial District Court, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by Wilkins McDade against W. Clyde Fulbright.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    R. L. Langston, of Minden, attorney for plaintiff, appellant,
    J. P. Mclnnis, of Minden, attorney for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit to recover $214.92 with legal interest thereon for damage alleged to have been done to an automobile belonging to plaintiff in a collision between it and an automobile belonging to defendant and operated by one Ployd Maxey, who, it is alleged, was an employee of defendant, and acting within the scope of his employment at the time of the collision.

Defendant denied liability and denied that at the time of the collision Ployd Maxey was engaged in the performance of any duty within the scope of his employment by him.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing his suit and he has appealed.

OPINION

Ployd Maxey was employed by plaintiff as a night dishwasher in a hotel operated by him in the town of Minden, Louisiana, and plaintiff handed him the key to the lock on his automobile and instructed him to carry it to one Nolan Clark and to tell him to drive the automobile to the front of the hotel. There was no reason why Ployd Maxey should not have obeyed the instructions, but instead of doing so he went to the automobile and got into it and undertook himself to drive it to the front of the hotel, and being an inexperienced driver, he ran the automobile into one belonging to plaintiff and damaged it.

And the only question presented for our determination is whether defendant is responsible for the damage caused by the tortious act of Floyd Maxey.

Not only does the testimony not show that Ployd Maxey, at the time of the collision, was acting within the scope of his employment or agency, but affirmatively shows that he had undertaken to operate defendant’s car without his knowledge or consent and in violation of defendant’s instructions to hand the key to it to Nolan Clark and tell him to drive it to the hotel.

In the case of Bardt vs. Champon, 6 La. App. 763, the Court said:

“To hold the owner liable for the damage done by an automobile in motion, it must be shown that it was operated at the time of the damage by the owner himself, or by some one under his control, or by his employee acting within the scope of his employment and for the benefit of the owner.”

At the time of the collision Ployd Maxey was not under defendant’s control nor acting within the scope of his employment and under the law defendant is not responsible for the damage resulting from his wrongful act.

The judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 11,299
    Orleans
    GRISTINA v. NUNEZ
    (April 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Brokers—Par. 17.
    The broker employed to procure a purchaser is entitled to his commission when he has procured a purchaser on the terms specified in the offer.
    2. Louisiana Digest — Brokers—Par. 17, 18.
    If on the day of sale the vendor signs an act of sale on terms different from the offer, he is still bound to pay the agreed commission.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Anthony Gristina against Mrs. Eloise Nunez, widow Jacob Fallo.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Prowell, McBride and Ray, of New Orleans, attorneys for plaintiff, appellee.
    H. L. Hammett, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for broker’s commission.

The' plaintiff sues upon the following document:

“Contract to Purchase.
“May 14th, 1927.
“I hereby offer and agree to purchase through you, Anthony Gristina, for the price and sum of $15,000 the property No. 1824 South Dupre Street.
“Terms: cash, subject to Homestead loan of $11,000; provided the seller of this property agrees to purchase my property known as 2241-2247 North Galvez for the price and sum of $9,500. In the event of the acceptance of this offer and my failure to comply with its terms and conditions, I obligate myself to pay on demand your commission of $980 on the entire transaction.
(Signed) “A. E. Schiro.”
“May, 1927.
“Anthony Gristina:
“I accept the above offer, also terms and conditions, and agree to pay you for services rendered a commission of four per cent on $15,000 amounting to $600 on the sale of my property, same being earned and payable when agreement to purchase is signed and the offer accepted.
“Remarks: The commissions involved to be equally divided between the offices of A. Gristina and Falsho Realty Co., Inc.
(Signed) “Eloise Nunez Fallo.”

The plaintiff further alleged that the exchange was consummated and the titles to the two properties transferred in accordance with the above agreement, which entitled plaintiff to receive four per cent commission on the total purchase price of both properties or $980; that A. E. Schiro has paid him $380, and Eloise Nunez, widow Jacob Fallo, owes him one-half or $300, for which he prays for judgment.

The defendant admitted negotiating the sale with Schiro, but she denied that the plaintiff was entitled to any part of the commission claimed by him “for the reason that he improperly and unskillfully performed the services mentioned in plaintiff’s petition, did not carry out defendant’s instructions, and forced defendant to conclude the sale at disadvantageous terms and for a loss to defendant in excess of the amount claimed by said plaintiff.”

There was judgment for plaintiff and defendant has appealed.

The defense is, that while the defendant had employed the plaintiff to procure a purchaser for her property for the price of $15,000, subject to a Homestead loan of $11,000, $4,000 cash, the purchaser, Schiro, did make an offer for that price and upon those terms, but on the day of sale, receded from his offer and forced her to accept from him $2300 cash and for the balance his note for $1474.35, the note being practically a second mortgage after the assumption of $11,000.

She was forced, as she avers, because if she had refused, the holders of the $11,000 mortgage would have foreclosed, and thus sacrificed her property.

We are of the opinion that the defense is not well founded. The plaintiff had procured a purchaser on her terms who. signed an offer to that effect. There is nothing to show that she could- not have compelled him to comply with his offer.

The danger that she anticipated of a foreclosure by the $11,000 creditor was of too remote a character to render the plaintiff liable in damages. That danger was not contemplated by the parties at the time of the contract, nor is it shown that the plaintiff was aware of it, C. C. 1934.

But if not satisfied with the change in the contract, the defendant could have refused it. She is presumed to have weighed the advantage of accepting it and the loss if she refused. After having accepted and profited by the services of the plaintiff, it would be against the law to refuse to pay for their agreed value. 9 C. J. 605; 4 R. C. L. 322; C: G. 1965.


author: ODOM, J.

text:
    No. 2578
    Second Circuit
    NOEL v. HOWCOTT, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 215, 277, 338.
    A tax sale of land on which the owner had previously paid the taxes is null and void in toto even though the deed conveyed more land than the taxpayer owned.
    2. Louisiana Digest — Taxation—Par. 220, 390.
    Taxes erroneously paid by another can be returned by the owner of the property without interest as Sec. 65 of Act 170 of 1898 has no application to this ease.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by R. E. Noel against H. A. W. Howcott, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Breazeale and Breazeale, of Natchitoches, attorneys for plaintiff, appellee.
    Rusca and, Cunningham, of Natchitoches, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff is the owner of an undivided one-fifth interest in N% of SE% and SE% of SE% of Section 27, SW)4 of Section 34, and lots 3, 4, 5, 6 and 7 of Section 33, Township 11 North Range 6 West, containing 465 acres, more or less, situated in Natchitoches parish, Louisiana.

On August 28, 1922, the tax collector of that parish, after due advertisement, sold plaintiff’s interest in said property to these defendants, the deed reciting that the salé was made for the due and unpaid taxes of R. E. Noel for the year 1921, the property having been assessed in the name of R. E. Noel.

Plaintiff, by this suit, seeks to have said tax deed decreed null and void and can-celled from the records, on the ground that he had previously paid the taxes for 1921.

There was judgment for plaintiff as prayed for, and defendants appealed.

OPINION

Plaintiff paid all parish and state taxes due on this land for the year 1921, the payment having been made on May 9, 1922, as evidenced by the tax collector’s receipt filed in evidence.

The taxes for which the property was sold having been previously paid by the owner, the tax sale was a nullity, and the deed executed by the tax collector to these defendants should be cancelled and erased from the records.

Plaintiff owned an undivided, one-fifth interest in the land, amounting to 90.53 acres. The land was assessed to him as

“90.53 acres, being a 3/5 interest in the following lands.”

(Then follows the description.)

The land sold, as described in the tax deed, is as follows:

“53 acres, being 3/5 interest in N% of SE% and SE% of SE& Sec. 27, SW!i of Sec. 34, and lots 3, 4, 5, 6, and 7, Sec. 33.”

Counsel for defendants say that if the deed be cancelled it should be cancelled only as to Noel’s one-fifth interest in the land, for that is all he owned, and that he has no interest in having the deed can-celled insofar as it conveys an interest in the land in excess of the one-fifth owned by him.

The answer to that argument is that the deed conveyed no interest in the land except that owned by Noel. The land was sold as his property for taxes alleged to be due by him under an assessment to him. The sale affects Noel and no one else, and he has a right to have it cancelled.

The fact tha,t the assessor and the tax collector made errors' in the assessment and in the deed as to Noel’s interest in the land, is a matter of no moment so far as the issue involved in this case is concerned.

Noel paid the taxes due on his land for 1922 and 1923, and when he called at the tax collector’s office in 1925 to pay his taxes for 1924 he was informed by the tax collector that the same, amounting to $14.57, had been paid by defendant.

It was then that plaintiff found out that his property had been sold. He at once wrote to defendants offering to refund the amount paid by them, which they refused.

When this suit was filed, plaintiff deposited $14.43. (instead of $14.57) with the clerk of the District Court.

Defendants contend that he should -have added interest, and that the tender should have been made to the tax collector and not to the clerk, ás provided in section 65 of Act No. 170 of 1898.

That section of the statute has reference to a repayment of the taxes for which the property was sold. The' amount which plaintiff offered to return and which he deposited with his suit, is not the amount of taxes for which the property was sold, but an amount for the taxes of 1924.

The admitted tender by plaintiff was 14 cents less than the amount due, but we shall not amend the judgment.

The judgment appealed from is correct, and is accordingly affirmed with costs in both courts.


text:
    No. 10,248
    Orleans
    HANEMANN v. UHRY, ET AL.
    (May 7, 1928. Opinion and Decree.)
    (May 20, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 7, 8.
    An offer may be withdrawn before acceptance.
    2. Louisiana Digest — Brokers—Par. 8, 9, 12.
    A broker is the agent of him who employs him originally, and only becomes the agent of the other party when the contract is finally made.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Paul B. Hanemann against Pleyman Uhry and Edwin J. Filleul.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed."
    Habans and Coleman, of New Orleans, attorneys for plaintiff, appellant.
    Nat W. Bond, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims of defendant four months’ rent. The suit is based upon the following correspondence between the plaintiff and defendants, through Generes and Ganueheau, real estate agents:

“New Orleans, August 1st, 1924.
“Messrs. Generes and Ganueheau,
“Gentlemen:
“We hereby offer to rent the premises 829-31 Conti Street from not later than August 10th, 1924, up to September 30th, 1925, on a monthly rental of $115 a month payable in advance * * * . The title of our firm will be' ‘Auto Steam Laundry’ which will be owned by the undersigned Heyman Uhry and E. J. Filleul * * * .
This offer to remain in force and irrevocable thru Monday, August 4th, 1924.
Yours truly,
(Signed)
“H. Uhry,
“E. J. Filleul.”

The plaintiff answered this offer as follows:

“August 1st, 1924.
“Messrs. Generes and Ganueheau:
“Gentlemen:
“I hereby accept the offer you procured from the ‘Auto Steam Laundry’ for the rental of the premises 829-31 Conti Street from August 10th, 1924, up to September 30th, 1925, at the monthly rental of $115.00 a month payable in advance.
“I agree to pay 4% commission for your services. It is understood that in the event you should succeed in finding a purchaser for this property during the terms of above lease, the commission I am now paying for this lease is to be deducted from this commission on the sale.
Yours truly,
(Signed) “P. B. Hanemann.”

The plaintiff claims of defendant $460 for four months’ rent beginning August 10th, 1924, based upon the above offer. He avers that he accepted the offer in the manner above stated on August 1st, 1924, and that the real estate agents immediately notified the defendants herein of plaintiffs’ acceptance of the offer; but that the defendants stated that they had changed their mind and had decided to withdraw from the lease; that the plaintiff notified the defendants of his intention to hold them to their offer and demanded of them the rent which they failed to pay; that he tried to rent the property in order to minimize the loss, but failed so to do.

The defendant Uhry denied that the documents annexed to the petition constituted a lease between plaintiff and himself; that the “offer” was withdrawn prior to its aceptance, and if accepted prior to the withdrawal of said offer that no written lease was entered into as contemplated by the parties thereto, and that said offer and acceptance do not constitute a binding obligation between the plaintiff and defendants.

He admitted that Generes and Ganucheau were the agents of both petitioner and defendants, but that there being a conflict of interest between the plaintiff and defendants, Generes and Ganucheau, acting as agents of both parties, were without right in law to make a binding contract between them.

There was judgment in favor of defendant, Heyman Uhry, rejecting plaintiff’s demand against him.

The plaintiff has appealed.

The first defense is that the defendants had withdrawn their- offer before its acceptance.

Article 1800 (1794) of the Civil Code reads as follows:

“The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he who proposes should before that consent is given, change his intention on the subject the concurrence of the two wills is wanting and there is no contract.”
C. C. 1809 (1803): “The obligation of a contract not being complete until acceptance, or in cases, where it is implied b> law, until the circumstances which raise such implication are known to the party proposing, he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the circumstances of the case, he may be supposed to have intended to give the party to communicate his determination.”

These Articles are interpreted in Blanks vs. Sutcliffe, 122 La. 448, 47 So. 765. In that case the defendant, made the following offer to the plaintiff:

“April 12th, 1907.
“I hereby offer for your acceptance, on or before June 15th, 1907, to sell to you for $4500 cash, 60 shares of the Capital Stock of the M. and T. Bank represented by stock certificate No. - owned by me a’nd standing on the books of the bank in my name.
(Signed) “W. J. Sutcliffe.”

On or about April 22, 1907, and before plaintiff Blanks had accepted this offer, Sutcliffe withdrew the same. The Court held that he was entitled to do so, under the circumstances of that case. See also State ex rel. McEnery v. Nicholls, 42 La. Ann. 214, 7 So. 738; 5 La. Dig. 588.

In the case under consideration it is true that by a letter signed by the plaintiff and addressed to Generes and Ganucheau and dated August 1st, the same date as the offer, it appears that the plaintiff accepted the defendants’ offer. But it nowhere appears that such acceptance was communicated to the defendants. Nor are they bound by the acceptance addressed to Generes and Ganucheau as brokers. They were not the defendants’ agents. Art. C. C. 3016 (2985) reads as follows:

“The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatory of both.”

In Southern Cotton Oil Co. vs. Shreveport, 111 La. 394, the Court said:

“A broker is the agent of him who employs him originally, and only becomes the agent of the other party when the bargain between the principals is definitely settled.”

Generes and Ganucheau were originally employed by the plaintiff, Hanemann, to rent and to sell his property. This is made evident by the terms of his letter of acceptance.

In that letter Hanemann provides for the payment of the commission he owes to Generes and Ganucheau for the tenant he has procured and also for the possible sale he might make of the property. If he owed. Generes and Ganucheau a commission it is evident that he had employed them. Generes and Ganucheau never became defendants’ agents because the bargain was never “definitely settled.” There is no evidence anywhere that Hanemann’s offer had been communicated to the defendants, except after their change of mind. But there is evidence that the defendants had communicated their change of mind to the plaintiff before acceptance. Uhry, one of, the defendants, testified:

“I changed my mind about renting the place for certain reasons, and about one or two days afterwards I notified one of the employees, the young lady in the office of this real estate concern, that I did not want the place and would not sign the lease, long before I was ever notified that my offer was accepted.”

This testimony is not contradicted in any manner. Neither the “young lady” nor the brokers testified.

The letter of acceptance written by plaintiff and addressed to the brokers was not binding upon the defendants because the brokers were not their agents.

Uhry further testified:

“Q. Were you ever notified that Mr. Hanemann had accepted that offer?
“A. Well, I don’t remember the dates, but I think it was about two or three days after I notified the real estate agents that I did not want the place. I was notified after that, two or three days afterwards. The notice came to me that the offer had been accepted by Mr. Hanemann.”

Considering that the defendants had signified to the plaintiff their change of mind before the acceptance of their offer had been communicated to them, the defendants are entitled to have the judgment affirmed.


text:
    No. 2524
    Second Circuit
    CARROLL v. POWELL
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal — Par. 143; Judgment — Par. 54, 165.
    A judgment sustaining an exception of no cause of action is a final judgment and must be signed before the appellate court can acquire jurisdiction of an appeal from it.
    Nicholls vs. Maddox, 52 La. Ann. 497, 26 So. 994.

      River & Rails Terminals, Inc., vs. L. Ry. & N. Co., 157 La. 1086, 103 So. 331.
    Appeal from the Second Judicial District Court, Parish of Bossier. Hon. John S. Richardson, Judge.
    Action by Jake Carroll against Daniel L. Powell.
    There was judgment for defendant and plaintiff appealed.
    Suit dismissed for want of jurisdiction.
    W. C. Boone and Atkins & Meadors, of Homer, attorneys for .plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellee.
   REYNOLDS, J.

Plaintiff recovered judgment against defendant in the Second Judicial District Court in and for the parish of Claiborne for $206.06 with legal interest thereon from July 1, 1924, until paid, and costs of suit, upon which a writ of fi. fa. was issued, and, under proper averments in a supplemental petition in the action wherein The Planters Bank of Haynesville, Louisiana, was named as garnishee a writ of garnishment directed to that institution was duly issued and served. The petition for garnishment alleged that the garnishee had on deposit in the name of the defendant, Daniel L. Powell, or in the name of his wife, Mrs. Maggie L. Powell, that belonged to defendant Daniel L. Powell money sufficient to satisfy plaintiff’s judgment in principal and interest and costs.

The garnishee duly answered that it had on deposit to the credit of Mrs. Maggie Powell the sum of $432.86 and that it was without knowledge or information sufficient to form a belief as to whether or no't the defendant Daniel L. Powell owned or claimed to own all or any part of the amount.

The defendant Daniel L. Powell and his wife Mrs. Maggie Powell filed an exception of no cause of action to the petition in garnishment based on the ground that the plaintiff could not question the title of Mrs. Maggie Powell to the money on deposit by garnishment process.

On trial the court sustained the exception and dismissed the garnishment proceeding and plaintiff, Jake Carroll, appealed.

OPINION.

Our attention has been called to the fact the judgment sustaining the exception, of no cause of action was not signed, and an examination of the record fails to disclose such q, judgment. In the absence of a signed judgment this court is without jurisdiction of plaintiff’s appeal.

Article 545 of the Code of Practice provides that the judge must sign all final or definitive judgments, and it is well settled by numerous decisions of our courts that no appeal lies from an unsigned judgment.

Saloy vs. Collins, 30 La. Ann. 63.

And it is also well settled that a judgment dismissing a suit on the ground that the petition does not disclose a cause of action is a final or definitive judgment and that no appeal lies from it unless signed.

Nichols vs. Maddox, 52 La. Ann. 497, 26 So. 994.

Rivers & Rails Terminals, Inc., vs. La. Ry. & Nav. Co., 157 La. 1085, 103 So. 331.

The court being without jurisdiction of plaintiff’s appeal, the appeal must he dismissed, and accordingly it is so ordered.


text:
    No. 3183
    Second Circuit
    WILLHITE v. HARTFORD FIRE INS. CO.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 177.
    Parol evidence is admissible to prove that an answer to a question in an application for fire insurance written by an agent of the insurer was the reverse of that dictated to him by the assured.
    Parker vs. Citizens Fire Insurance Co., 4 La. App. 711.
    2. Louisiana Digest — Insurance—Par. 72.
    An insurer cannot avoid its policy of fire insurance because of a misstatement in the application for it, material to the risk, but due to mistake or negligence on the part of its agent and not to fraud or bad faith of the assured.
    Ibid.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by John W. Willhite against The Hartford Fire Insurance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    McHenry, Montgomery, Maling and Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    J. C. Hollingsworth, of New Orleans, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This suit is to recover $843.75, with legal interest thereon from judicial demand, and 12 per cent on the sum of $1,125.00 (or $135.00), and $250.00, as attorney’s fees, on a policy of fire insurance for $1,000.00 issued by defendant to plaintiff, covering a one-story frame shingle roof dwelling house, $650.00, household and kitchen furniture therein, $250.00, barn and sheds, $100.00.

Plaintiff alleges that the insured property was destroyed by fire on October 13, 1926, during the life of the policy, that it was worth $1,125.00, and that defendant is liable under the policy for three-fourths of that amount, or $843.75, legal interest thereon, 12 per cent on the $1,125.00, and $250.00 as attorney’s fees.

The defense is that the policy was void ab initio because plaintiff induced defendant to issue it by representing to defendant in writing over his signature in answer to the question put to him by it:

“Is any of your property, real or personal, under mortgage, lien or incumbrance? If so, state how, to what amount, and when due.”

that none of it was under mortgage, lien or incumbrance.

That the answer was a warranty and that relying thereon defendant issued the policy sued on and would not have done so but for plaintiff’s representation; and “your defendant shows 'that there were mortgages on the said property at the time of the application, and .continuously thereafter, to the time of the fire, and had plaintiff made known this fact to your defendant, that your defendant would not have issued its form of policy to this plaintiff, * * * ”

On these issues the case was tried apd there was judgment in favor of the plaintiff and against defendant as prayed for, and defendant appealed.

OPINION

The only question presented for our determination is whether or not plaintiff procured the issuance of the policy sued on to him by fraud or misrepresentation.

Plaintiff made written application to defendant for the policy and signed the application. Among others, the following question and answer appear in the application:

“Q. Is any of your property, real or personal, under mortgage, lien, or incumbrance? If so, state how, to what amount and when due?
“A. No.”

J. B. Thompson, defendant’s solicitor, who took plaintiff’s application for the policy, testified that he read plaintiff the question and that plaintiff gave the answer and that he wrote it down as given.

Plaintiff swears, on the contrary, that he did not make the answer “no” to the question and did not know it had been so written; that he told defendant’s solicitor that the property was under mortgage to the Federal Land Bank and that he signed the application in the belief that it so stated.

He testified:

“Q. Was anything discussed between you and Mr. Thompson relative to mortgages on your farm?
“A. Tes, sir; he asked me if I had any mortgage, while we were having that conversation — no, it was when he was filling out this blank — he asked me if I had any mortgages on my place, and I told him I had $450.00 in the Federal Land Bank.
“Q. 'Where did this conversation take place?
“A. On my front porch.
“Q. Was any one present besides you and Mr. Thompson?
“A. Yes, sir.
“Q. Who?
“A. Charley Whitehead and my wife and Mrs. Susie Aulds.
# !jC }»«
“Q. What did you tell him, with reference to mortgages on your property?
“A. I told him that the Federal Land Bank had a $450.00 mortgage against my property, my land. I said: T don’t know, I built this house two years later after I had taken out the mortgage, and I don’t know whether they have a mortgage on my house or not.’ I said: ‘You might know, but I don’t know whether they have or not. They have a $450.00 mortgage against my land and this house is on the land’; that’s just what I told him.”

Mrs. John W. Willhite testified:

“Q. Do you recall when Mr. Thompson came to your home?
“A. Yes, sir.
“Q. Were you present when Mr. Thompson discussed with your husband about taking out some insurance?
“A. Yes, sir.
“Q. State what your husband told Mr. Thompson with regard to the mortgages on his property?
“A. He told him that the Federal Land Bank had a four hundred dollar mortgage against the property.
“Q. Who else was present at the time your husband and Mr. Thompson were discussing the taking out of insurance?
“A. Mrs. Aulds and Mr. Whitehead.
* * *
“Q. All you can remember was that he talked about a four hundred dollar mortgage to the Federal Land Bank?
“A. Yes, sir; he absolutely told him that.”

Mrs. Susie Aulds testified:

“Q. Were you present at Mr. Willhite’s house on or about May 5, 1926, when Mr. Thompson and Mr. Willhite were discussing the matter of some insurance?
“A. Yes, sir, I was.
“Q. What was the conversation between Mr. Thompson, and Mr. Willhite relative to mortgages on the property of Mr. Willhite?
“A. Mr. Willhite told him that the Federal Land Bank had a mortgage against it.
“Q. Mr. Willhite told him that the Federal Land Bank had a mortgage against it?
“A. Yes, sir.
“Q. Who else were present during the conversation, Mrs. Aulds?
“A. There were myself, Mrs. Willhite, Mr. Whitehead, and Mr. Willhite.”

Charley Whitehead testified:

“Q. Were you present at the home of Mr. Willhite during the conversation between Mr. Willhite and Mr. Thompson, during the month of May, 1926?
“A. Yes.
“Q. Mr. Whitehead, please state what you know or what you heard during the conversation between Mr. Willhite and Mr. Thompson, relative to mortgages on Mr. Willhite’s place?
“A. He told him that he had a mortgage on the place.
“Q. Did he state in whose favor that mortgage was?
“A. He said the Federal Land Bank.”

Thus we have the positive testimony of four witnesses testifying on behalf of plaintiff that plaintiff did disclose to defendant’s agent the fact that the insured property was mortgaged against the equally positive testimony of one witness testifying on behalf of defendant that plaintiff did not.

The trial Judge, who saw and heard the witnesses testify, accepted as correct the testimony of plaintiff’s four witnesses. Defendant’s agent might well have been mistaken as to plaintiff’s answer to his question concerning mortgages on the property. It is altogether more probable that defendant’s agent was mistaken than that Mrs. Willhite, Mrs. Aulds, Mr. Whitehead and plaintiff himself were.

Defendant insists that the testimony of its witness, Thompson, is corroborated by the signed application of plaintiff. While plaintiff signed the application he did not write the answers in it. That was done by plaintiff’s agent. And we think the evidence shows that plaintiff had confidence in defendant’s agent and signed the appligation without reading it, believing that the agent had understood him and that his answers to the questions in the application had been written in as he gave them. The evidence shows that plaintiff was reluctant to buy the insurance and that he only consented to do so after' urgent solicitation by defendant’s agent. As plaintiff was not seeking the insurance but was being urged to apply for it, manifestly there was no occasion for him to misrepresent the facts as to mortgages on the property even if he had been disposed to do so.

There was apparently another mortgage on plaintiff's property given to secure the payment of a note for $500.00 signed by him dated January 7, 1919, but Mr. Oliver B. Morton, vice-president of the Ouachita National Bank, testified that -at the time of the giving of that mortgage he was connected with the Citizens National Bank ánd that the note was negotiated by plaintiff to that bank and that the note was paid by plaintiff on January 16, 1922, and that it remained in the custody of the bank until after the fire when plaintiff went and got it and had the mortgage securing its payment cancelled on the record.

Defendant insists that parol evidence was inadmissible to contradict the written answers contained in plaintiff’s signed application for the insurance, but we think it was admissible to show that the answer to the question about mortgages on the property as written was incorrect in view of the fact that the answer was not written by plaintiff himself but by defendant’s agent.

Parker vs. Citizens Fire Ins. Co., 4 La. App. 711.

The evidence convinces us that plaintiff did not misrepresent the facts to plaintiff’s agent and that the loss sustained by him was an honest one. Defendant cannot escape liability under the policy because of the error of its agent in writing in the application plaintiff’s answer to the question concerning mortgages.

Finding no error in the judgment appealed from it is accordingly affirmed.