text:
    No. 2751
    Second Circuit
    FUQUA v. COUVILLION, AS SHERIFF, ET AL.
    (January 28, 1927. Opinion and Decree.)

      (Syllabus Tyy the Court)

    1. Louisiana Digest — Estoppel—Par. 1, 2.
    A defendant is entitled tq the full benefit of the plaintiff’s judicial allegations of fact; and in the absence of allegations and proof of error in making them the plaintiff is estopped to deny them.
    2. Louisiana Digest — Continuance—Par. 1; Appeal — Par. 105.
    An application for a continuance of a trial in a civil case is addressed to the sound discretion of the trial judge, and his action thereon will not be disturbed on appeal unless it manifestly appears he has abused his discretion.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.

      Action by John E. Fuqua against C. P. Couvillion, as sheriff, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Bordelon & Norman, of Marksville, attorneys for plaintiff, appellant.
    W. B. Couvillion, of Marksville, attorney for defendants, appellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

Defendant, Samuel Moreau, as transferee of a judgment obtained by Mrs. Florence A. Zimmer against Robert Laborde, caused a fi. fa. to issue thereon under which the sheriff, C. P. Couvillion seized a certain automobile as the property of the judgment debtor.

The judgment debtor executed a forthcoming bond and the automobile was released from the seizure.

Thereafter plaintiff, John E. Fuqua, brought this suit to have himself decreed to be the owner of the automobile and to restrain the sheriff from selling it under the fi. fa.

He alleged that *he had sold the automobile to Robert Laborde in the state of California on June 19, 1925, for $800.00, of which $50.00 was paid and the balance of $750.00 was to be paid in fifteen equal installments, and that the balance of the purchase was due and unpaid.

He further alleged that the contract of sale provided that the title to and property in the automobile should not pass to the purchaser until the price was paid; that under the laws of the state of California such a contract was valid, and that consequently he and not the judgment debtor was the owner of the seized automobile.

A temporary restraining order was granted and the sheriff and seizing creditor ruled to show cause why it should not be continued pendente lite.

Thereafter plaintiff filed a supplemental and amended complaint wherein he alleged that the allegation in his petition that he had sold the automobile to Robert Laborde was inadvertent; that it was sold to Robert Laborde by Paul G. Hoffman Company, Inc., of Los Angeles, California, on a credit and under a contract whereby the title thereto was to remain in that company until payment of the price, and that the company had sold and transferred its contract to him, plaintiff.

And thereafter he filed a second and supplemental and amended petition in which he practically repeated the allegations of his first amended and supplemental petition.

'Defendants answered, denying that any part of the price of the automobile remained unpaid or that the laws of the state of California permitted a sale' with reservation of title in the vendor, and alleged, in the alternative, that if any part of the price remained unpaid and if the vendor had retained title to the automobile and the laws of the state of California permitted such a contract, that plaintiff had permitted Robert Laborde to remove the automobile out of the state of California and into the state of Louisiana and thereby subjected it to the effect of the laws of the state of Louisiana, and that plaintiff’s only right, if he had any, was to assert a vendor’s privilege and the right to be paid out of the proceeds of the sale of the automobile under the fi. fa. in preference to the seizing creditor.

Defendants also filed a motion to dissolve the injunction on the ground that plaintiff’s amended and supplemental petitions had changed the issues and set forth a new cause of action that plaintiff’s right t<5" the preliminary injunction must be determined by the allegations and cause of action set up in the original petition, and that these having been abandoned, his right to the preliminary injunction ceased with it.

The question of continuing the temporary injunction pendente lite, or dissolving it on defendant’s motion, came up for trial, and plaintiff moved for a continuance on the ground that in the short time that elapsed between the filing of his suit and the hearing on the motion he had been unable to get his case ready for trial.

The application for a continuance ' was denied and a trial was had and judgment was rendered dissolving the preliminary injunction.

Plaintiff asked for orders of appeal, both suspensive and devolutive, from this judg ment. A suspensive appeal was refused him but a devolutive appeal was granted.

Whereupon plaintiff applied to this court for a writ of mandamus, and a writ of prohibition directed to the district judge, the seizing creditor and the sheriff, commanding the district judge to show cause why he should not be required to grant plaintiff a suspensive appeal and prohibiting the seizing creditor and the sheriff from selling the automobile until the further order of this court.

Alternative writs of mandamus and prohibition were granted as prayed for.

The defendant sheriff and the seizing creditor answered that the granting or refusing of a continuance lies solely within the discretion of the trial judge and that his action cannot be controlled by mandamus, and that, under the provisions of Section 5 of Act 29 of 1924 no appeal is allowed from a judgment dissolving a restraining order, and that, hence, plaintiff was not entitled to the suspensive appeal prayed for.

Plaintiff perfected his devolutive appeal from the judgment dissolving the preliminary injunction, and on hearing of that appeal this court reversed the judgment of the District Court and remanded the case to the District Court with instructions to allow the plaintiff fifteen days’ time after return of the record to the lower court in which to get ready for trial.

The alternative writ of mandamus, having served the purpose of staying proceedings under the fi. fa. until plaintiff’s appeal could be heard, no action was taken by this court in that proceeding thereafter.

On November 17, 1925, the case was ses down for trial on its merits for December 16, 1925.

On December 16, 1925, the trial was reset for December 21, 1925.

On December 19, 1925, on motion of plaintiff the setting for December 21, 1925, was set aside and the trial refixed for December 30, 1925.

On January 11, 1926, ,the trial was reset for January 13, 1926.

On January 13, 1926, the trial was re-fixed for January 20, 1926.

On January 21, 1926, the trial was reset for January 28, 1926.

On January 28, 1926, the trial was reset for February 9, 1926.

Thereafter the trial was continued several times more until March 10, 1926, on which day it was taken up and tried and taken under consideration by the court.

On April 29, 1926, on motion of plaintiff, trial of the case on the question of continuing the preliminary injunction pendente lite, or dissolving it on defendant’s motion, was set for hearing for May 27, 1926. On that day plaintiff moved for a continuance. Defendant objected to any hearing then or later on the question. on the ground that all the issues involved were included in the merits and, inasmuch as the case had been tried and submitted on the merits, there was nothing further to be tried. The court sustained the defendant’s objection.

On June 5, 1926, the court rendered judgment on the merits, rejecting plaintiff’s demand and dismissing his suit at his cost.

From this judgment plaintiff' appealed devolutively.

This agreement is endorsed on the contract of sale from Paul G. Hoffman Company, Inc., to Robert Laborde.

And at some time, not given, by endorsement on the same contract, plaintiff, J. E. Fuqua, and Robert Laborde entered into the following agreement:

“This agreement between Mr. Robert Laborde and J. E. Fuqua, $800.00, is to pay the car off in payments of $50.00 per month with interest:

July 19, 1925 ____________________________________$ 50.00

August 19, 1925 ________________________________ 50.00

September __________________________________________ 50.00

October ________________________________________________ 50.00

November __________________________________________ 50.00

December __________________________________________ 50.00

January, 1926 ____________________________________ 50.00

February -------------------------------------------- 50.00

March __________________________________________________ 50.00

April ____________________________________________________ 50.00

May ___________________________________________ 50.00

June ____________________________________________ 50.00

July ---------------------------------------------------- 50.00

August ----------------------------------------------- 50.00

September __________________________________________ 50.00

October ------------------------------------------------ 50.00

$800.00

(Signed) “ROBERT LABORDE.”

The real question at issue is whether or not the last quoted agreement constituted a sale by John E. Fuqua to Robert Laborde.

Article 2439 of the Civil Code provides:

“The contract of sale is an agrément by Which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.”

The contract between J. E. Fuqua and Robert Laborde contains all the requisites of a contract of sale as defined in this article. There is the thing (an automobile), the price, $800.00, and the assent of the parties.

Plaintiff judicially alleged that he had sold the automobile to Robert Laborde. Paragraph 3 of his original petition reads as follows:

“Your petitioner alleges that on the 19th day of June, 1925, he sold said Robert Laborde, seized debtor herein, the said 1924 model Studebaker touring automobile, engine number 187958; hereinabove fully described, and so seized and advertised to be sold at sheriff’s sale on October 17th, 1925, as aforesaid, for the sum of eight hundred ($800.00) and 00-100 dollars, of which the sum of fifty ($50.00) and 00-100 dollars, being paid cash, and the balance of seven hundred and fifty ($750.00) dollars in fifteen equal installments, with the provision and stipulation that the title to and ownership of said automobile to remain in your petitioner until final payment, as will all more fully appear by reference to certified copy of contract of sale annexed hereto and made part hereof.”

In Paragraph 2 of his amended and supplemental petition plaintiff alleged:

“Petitioner represents that said allegation in part was inadvertently stated, and that the true facts of said automobile is as follows, to-wit:

“That said automobile was sold to said Robert Laborde by Paul G. Hoffman Company, Incorporated, whose domicile is in the city of Los Angeles, and state of California, and that on June 16th, 1925, petitioner was sold, transferred and assigned the contract of sale and interest therein by said company; and that on said June 16th, 1925, petitioner entered into an agreement with said Robert Laborde wherein and whereby the said Laborde promised and bound himself to pay petitioner the sum of $800.00 as the- purchase price of the said automobile, of which the sum of forty dollars has been paid petitioner, and leaving a balance of $760.00 still due and owing petitioner; that otherwise the said Laborde’s contract with said Paul G. Hoffman Company, Inc., was to remain and continue to be the contract between the said Laborde and petitioner.”

Plaintiff testified (deposition, page 3):

“There was a subsequent agreement between Laborde and myself as to the terms of payment on said automobile for balance due on same as represented in the said contract.”

The agreement he refers to is that of unmentioned date, copied above, wherein Laborde agrees to pay $800.00 for the automobile, $50.00 cash and the balance in monthly installments of $50.00 each. But there is no proof that the sale from plaintiff to Laborde 'was a conditional one.

On page 5 of his deposition he further testifies:

“* * * >and then I wrote my name over on the right-hand corner, it being the intention of us both that we were signing our names to bind the agreement set out in typewriting above in regard to payments.”

Plaintiff, having obtained the preliminary injunction on the sworn allegation that he had sold the automobile to Laborde on credit and retained the title in himself until the price should be paid, could not shift his ground and maintain his action on an allegation that another person had sold Laborde the automobile on a credit and reserved the title in itself until the price should be paid, and that he had purchased the contract from such other person and thereby became the owner of the automobile.

Paragraph 3 of plaintiff’s original petition and his testimony above quoted show that the contract between Laborde and Paul G. Hoffman Company, Inc., was extinguished by agreement between all three of them and that he thereafter sold the car to Laborde for the price of $800.00, of which $50.00 was paid in cash and the balance was to be paid in monthly installments of like amount.

Plaintiff’s contract with Laborde, copied hereinabove, does not stipulate that the title to the automobile is not to pass from plaintiff to Laborde until the price is paid.

Plaintiff, having become the owner of the automobile in virtue of the agreement between himself, Laborde and the Paul G. Hoffman Company, Inc., and having thereafter sold and delivered it to Laborde without stipulating that the title should not pass to him until the price was paid, the title to and property in the automobile passed to Laborde, and it became subject to seizure and sale under fi. fa. against him.

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


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2849
    Second Circuit
    VIDRINE v. TEXAS & PACIFIC RAILROAD CO.
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Laws — Par. 70; Railroads — Par. 87, 88.
    The public policy of Act 70 of 1886 is that railroad companies shall pay for live stock killed in the operation of their . trains unless they shall allege and prove that the killing was without negligence on their part.
    State vs. Foster, 106 La. 425, 31 South. 57.
    2. Louisiana Digest — Railroads—Par. 87, 88.
    Prior to the passage of Act 70 of 1886 the burden was on the plaintiff, in an action against a railroad company for the value of live stock killed in the operation of its train, to allege and prove that the killing was the result of negligence on the part of the defendant.
    Mire vs. Y. & M. V. R. R. Co., 105 La. 462, 29 South. 935. .
    3. Louisiana Digest — Railroads—Par. 88, 89; Evidence — Par. 58, 337. '
    Where two witnesses for the plaintiff testify to the existence of certain facts and two witnesses for the defendant testify to the existence of opposite facts and both sets of witnesses are of equal credibility and intelligence and had equal opportunities of learning the facts, nothing is proved; and where, as in this case, the burden was on the defendant to prove its special defense that the killing of the live stock was unavoidable, it has failed to discharge that burden.
    4. Louisiana Digest — Railroads—Par. 85.
    Since the passage of Act 70 of 1886 it is not negligence on the part of the owner of live stock not to fence them away from railroad tracks.
    5. Louisiana Digest — Railroads—Par. 89; Evidence — Par. 58.
    In this case, the burden of proof being upon the defendant, two witnesses for the plaintiff having testified to the existence of facts diametrically opposite to those testified to by two witnesses for the defendant, and the trial court having accepted the version of the plaintiff’s witnesses, we cannot say that it erred.
    6. Louisiana Digest — Railroads—Par. 88, 89.
    In this case the burden was on the defendant to prove that the killing of the live stock was unavoidable. Two of its witnesses testified that at the time the trains struck and killed the live stock a heavy fog prevailed, rendering it impossible for the trains to be stopped before striking them after they were discovered on the track. Two of plaintiff’s witnesses testified that there was no fog, at the time and place the animals were killed. Both sets of witnesses were of equal credibility and intelligence and had equal opportunities for learning the facts. Therefore, the defendant failed to discharge the burden of proof resting upon it.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. R. C. Culpepper, Judge.
    Action by Collins F. Vidrine against Texas and Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    "Wade J. Broussard, of Marksville, attorney for plaintiff, appellee.

      Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This suit is to recover $375.00, the alleged value of three Jersey cows killed by defendant’s trains. Both animals were killed on the same day and at the same place and almost at the same time, two of them being killed by a southbound train at approximately 3 o’clock A. M., and the other being killed at approximately 3:15 o’clock A. M. by a northbound train.

Defendant denied liability and alleged that plaintiff was barred from recovering because he had been guilty of contributory negligence in permitting his cows to go upon its track. It also alleged that a dense fog, existing at the time and place the animals were killed, rendered it impossible for the engineers in charge of the locomotives to stop their trains after discovering the live stock on the track and before striking them.

On these issues the case was tried and there was judgment in favor of the plaintiff for the amount claimed, and the defendant appealed.

OPINION

Defendant’s contention 'that plaintiff was negligent in not keeping his cows off of its track, and for that reason cannot recover, is not, in our opinion, sound, for the reason that Act 70 of 1886 makes railroad companies responsible for the value of live stock killed in the operation of their trains:

“* * * unless it be shown by the defendant company that the killing or injury was not the result of fault or carelessness on their part or the negligent or indifferent running or management of their locomotive or train.”

The defendant introduced testimony tending to prove that there was a heavy fog existing at the time and place the cows were killed which prevented the engineers in charge of the locomotives from seeing the animals soon enough to enable them to stop the trains before striking them.

The railroad track is straight at the place where the cows were killed, and the sole question for determination is one of fact, namely, were the engineers in charge of the locomotives prevented from seeing the animals, in time to stop their trains before striking them, by fog.

Defendant introduced three witnesses, namely, R. Engler and Henry Dezavalla, the engineers in charge of the locomotives, and L. E. Robert, the fireman on one of the locomotives.

Both Engler and Dezavalla testified that there was a heavy fog at the time and place the live stock were killed.

Roberts, the fireman, did not ' see the killing of the cows and, hence, could give no intelligent account of it.

The fireman on the other locomotive, Frank Gomez, was dead at the time of the trial.

So that the only witnesses testifying as to the fog on behalf of the defendant were the two engineers.

The testimony of Engler and Dezavalla on this point is fully contradicted by that of W. J. Smith, a witness for the plaintiff, and that of the plaintiff himself.

The testimony of the two witnesses tor the defendant, as well as that of the two witnesses for the plaintiff, is direct and positive; none of the witnesses was impeached; and as their testimony was of equal weight, that of the defendant’s witnesses is offset by that of tbe plaintiff’s witnesses, nothing was proved; and the burden being on the defendant, under Act 70 of 1886, to prove its special defense that the killing was unavoidable, it failed to discharge that burden.

Besides this, the district judge, who heard the two witnesses for the plaintiff and the two witnesses for the defendant testify and observed their demeanor on the witness stand, gave effect to the testimony of the plaintiff’s witnesses. He was in a better position to judge as to the proper weight to be given to their respective testimony, and we see so reason for dis agreeing with his conclusion.

Learned counsel for the defendant urges with much force and earnestness that no weight should be given to the testimony of the plaintiff’s witnesses as to the fog for the reason that they were not actually present at the time and place where the stock were killed and defendant’s witnesses were.

W. J. Smith testified that he saw the killing of the cow by the northbound train and that he heard the southbound train that killed the two cows pass. He testified, in regard to the fog:

“Q. I will ask you this question now: Was there a heavy fog, or any kind of a fog, that morning?

“A. Not to my recollection.

“Q. Are you willing to swear positively that there was no fog?

“A. There was no fog, because I could see a cow for a couple of hundred yards, and if it had been foggy I could not have done it.”

The killing of one cow by the northbound train and of the two cows by the southbound train happened within fifteen minutes of each other, and, in our opinion, the density of the fog could not have materially changed between the happening of the two events, and the witness Smith, who was present at 3:15 o’clock A. M., when the northbound train killed the one cow, was in position to know and testify as to the condition of the fog at the same place fifteen minutes earlier when the southbound train killed the two cows.

The plaintiff, Collins F. Vidrine, testified, page 58:

“Q. I will ask you whether or not there was any fog, dense or otherwise, that morning?

“A. Fog?

“Q. Yes.

“A. Why, ot to hurt — you could see.

“Q. Was it any unusual fog?

“A. No, sir.”

Defendant’s counsel, in oral argument and in brief, insist that this testimony carries no probative force, but the district judge, who heard the witnesses testify, thought otherwise, and we are not prepared to disagree with the trial court as to the weight the testimony is entitled to.

The testimony of defendant’s witnesses, Engler and Dexavalla, is not entirely harmonious on the subject of the fog. One of them testified that the fog was so dense he could not see the animals on the track until he _ got within 200 feet of them; while the other testified the fog was so dense he could not see the cow his locomotive struck until he got within fifty feet of it.

Dezavalla testified, pages 43 and 44:

“Q. Where it is not foggy, how far ahead of you can you see, approximately, with your headlight? •

“A. I judge just about a hundred and sixty feet.”

Engler testified, page 34:

“Q. How far ahead does your headlight show?

"A. Well, in real fog, the headlight is practically useless, it is perfectly useless.

“Q. Well, if it is not foggy?

“A. I guess a quarter of a mile.”

One of the engineers testified that he saw the cows that his locomotive killed when they were 200 feet away, and the other engineer testified that he did not see the cow that his locomotive killed until he was within fifty feet of it. Both engineers testified that at the time they first saw the' cows on the track their trains were running at from 40 to 45 miles an hour,- and that trains such as those that killed the cattle while traveling at that speed could not be stopped within from 800 to 1000 feet. And yet the engineer in charge of the locomotive that killed the two cows testified that his train was traveling at a speed of 45 miles an hour, and that by the time he struck the cows he had reduced its speed to ten miles an hour. It does not look reasonable to us that if he could reduce the speed of his train from 45 to 10 miles an hour in a space of 200 feet it would require' from 600 to 800 feet additional to bring the train from a speed of 10 miles an hour to a standstill.

However, it is useless to discuss what to us appears to be inconsistency.

We are satisfied that the witnesses testified to the facts as they saw and understood them; hut in the last analysis the trial court was in better position to properly weigh the evidence than we are.

For these reasons it is ordered, adjudged and decreed that the judgment appealed from he affirmed.


author: ODOM, J.

text:
    No. 2704
    Second Circuit
    TRADERS’ SECURITIES CO. v. SOLOMAN
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 42, 46.
    A purchase of jewelry evidenced by trade acceptances is binding upon the purchaser of the jewelry in the absence of fraud or misrepresentation and cannot be cancelled merely because the purchaser does not want it.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Grant.
    Action by Traders’ Securities Company against M. Soloman.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    John A. Williams and R. B. Williams, of Colfax, attorneys for defendant, appellant.
   ODOM, J.

On August 19, 1924, a representative of the Arch Manufacturing Company sold to defendant, M. Soloman, who is a-merchant, a bill of goods to be delivered in due course. The goods were to be paid for in three installments of $59.60 each, due in three, five and seven months from the date of sale. Evidencing these installments, the Arch Manufacturing Company drew three drafts or “trade acceptances”, all alike except as to the date of. payment, as follows:

“$59.60. St. Louis, Mo., Aug. 19th, 1924.

“Three months (the other two are for five and seven months, respectively) after date, pay to the( order of OURSELVES at our office at St. Louis, Mo., fifty-nine and 60-100 dollars. The obligation of the acceptor hereof arises out of the purchase of goods from the drawer.

(Signed) “ARCH MANUFACTURING CO. “To M. Soloman,

“Selma, La.”

Across the face of these instruments is printed in red ink the word, “Accepted”, and underneath that word is a horizontal line on which M. Soloman signed his name.

These instruments, which are filed in evidence, are endorsed on the back as follows:

“Pay to the order of—

“Traders Securities Co.

“Arch Manufacturing Co.

“Per W. A. Blackstad,

“President.”

The Traders Securities Company, alleging that it is the holder and owner in due course an,d for a valuable consideration of said acceptances, brought suit against M. Soloman to recover the amount thereof, Soloman having refused to pay them.

The defense is that the acceptances were obtained through fraud and that plaintiff is not the owner in good faith of the instruments sued on but' that it obtained them from the Arch Manufacturing Company without consideration, and that there was collusion between the plaintiff and said Arch Manufacturing Company in the transfer.

The lower court gave plaintiff judgment as prayed for with costs, and defendant appealed.

OPINION

Counsel for defendant say in brief:

“If the facts alleged were true as to purchase without notice, there would be no controversy about the matter, for evidently the defendant would have no defense.”

The law applicable being thus conceded, we need discuss only the facts concerning the transaction.

These acceptances are all dated August 19, 1924.

The testimony of Frank Coffman, secretary and treasurer of the plaintiff company, was taken by commission. He testified that these instruments were carried to the office of the plaintiff in St. Louis in the month of September, 1924, by a representative of the Arch Manufacturing Company and offered for sale at their face value, less ten per cent; that his company then and there purchased them and paid for them in cash; whereupon they were delivered; and that plaintiff has held them ever since. He further testified that plaintiff bought them before maturity in good faith without any knowledge whatever of any controversy between Soloman and the Arch Manufacturing Company, and that he thought the acceptances were perfectly good, otherwise his company would not have purchased them.

Mr. Coffman’s testimony to this effect is uncontradicted.

Therefore, under counsel’s statement of the law, further discussion of the facts is unnecessary.

However, we have examined the record further and have found no evidence of fraud practiced by the Arch Manufacturing Company upon the defendant.

Soloman testified that he purchased the goods and signed the acceptances, but that within the course of an hour or two his wife suggested to him that he had made a bad trade; whereupon he sought the salesman and demanded a duplicate of the order, which was not furnished him, and that the salesman promised to mail it, which he failed to do.

Counsel in brief say that Soloman demanded a return of the acceptances which he had signed; but- they are mistaken in that statement.

Soloman says he demanded a duplicate of the order, but says, specifically, that he did not demand a return of the acceptances. He does say, however, that the salesman told him that if he did not want the goods he did not have to take them.

But we are not prepared to believe that Soloman thought the order was cancelled, for two reasons:

First, he did not demand a return of the acceptances; and,

Second, he waited two days, and then wrote the following letter:

“Arch Manufacturing Co.:

“I bought a $298.00 shipment from your salesman and have decided I don’t want the jewelry, so just cancel the order.

(Signed) “S. SOLOMAN.”

If he had understood that the salesman agreed to cancel the order we think he would have asked for a return of the acceptances and would not have written the letter above quoted.

The company refused to cancel the order and shipped the goods. Soloman refused to accept them because, he said, he did not want them. He does- not say that the goods were not of the character, kind and quality represented. He says he did not want them. He does not charge that the salesman made any misrepresentation to him. Therefore, the sale was binding upon him and those instruments evidence a valid and binding obligation upon him to pay for the goods.

But these acceptances were negotiable and went into the hands of an innocent third person, who paid value for them before maturity; so that Soloman is in no position to plead fraud as against the plaintiff, -even if any had been practiced upon him by the salesman.

The judgment appealed from is correct and is accordingly affirmed at appellant’s cost.


author: WEBB, J.

text:
    No. 2792
    Second Circuit
    COOPER v. STEPTOE
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4, 4 (a), 4 (d).
    The act of driving an automobile on the left side of the road at night without lights is gross negligence and makes the driver liable in damages for the resulting collision with another automobile.
    (Civil Code, Art. 2315. — Editor’s note.)
    2. Louisiana Digest — Automobiles — Par. 7.
    Where one, a minor, eighteen years of age, driving an auto at night on the right-hand side of the road with his headlights burning, is confronted with another auto driving on the wrong side of the road without his headlights burning, the action of the driver of the first car in turning to the left in order to avoid a collision, after he saw the other car, is not contributory negligence, because he had not created nor contributed to the creation of the hazardous situation.
    3. Louisiana Digest — Appeal—Par. 625.
    Finding of the trial court on matters, being clearly correct, is affirmed.
    Appeal from the Fourth Judicial District of Louisiana, Parish of Morehouse.
    Action by D. W. Cooper against R. G. Steptoe.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Alexandria, attorneys for plaintiff, appellee.
    Shotwell & Brown, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment rendered against him for fifteen hundred dollars, the amount of the damages found to have been sustained by plaintiff, which resulted from a collision between an automobile owned by plaintiff and. in which he was riding at the time of the accident, with an automobile owned by defendant.

Plaintiff answered the appeal, praying that the judgment be amended and the amount increased to twenty-seven hundred and fifty dollars, as originally claimed.

OPINION

The defendant urges that the evidence failed to establish negligence on the part of the driver of defendant’s car and that it shows the driver of plaintiff’s car to have been negligent and his negligence to have contributed to the accident.

It is conceded the collision occurred in the night on the public highway between Bastrop and Monroe at a point where there is a slight curve in the roadway and that at the time of the accident plaintiff’s car was being driven towards Monroe and defendant’s car was' being driven toward Bastrop.

Plaintiff, and his minor son, who was about eighteen years of age, and who was at the time of the accident driving plaintiff’s car, state that plaintiff's car was equipped with headlights which were burning, and that it was being driven on their right-hand side of the roadway at a speed of twenty or twenty-five miles an hour, and that as they came into the slight curve the headlights of their car fell upon the lenses in the headlights (which were not lighted) of a ear on their right-hand side of the roadway, and that plaintiff’s son first turned their car further to their right-hand side of the roadway and then to their left, and that their car had reached a point about the center of the roadway when the collision occurred.

On the other hand, the driver of defendant’s car and defendant’s wife, who was at the time in the car, state that the headlights on defendant’s car were burning and hat the car was being driven on their right-hand side of the roadway at a speed of two or three miles an hour when they noted plaintiff’s car approaching on their right-hand side of the roadway, and that the driver of plaintiff’s car suddenly attempted to pass in front of defendant’s car to the other side of the roadway with the resulting collision.

Immediately after the collision other persons arrived at the scene of the accident and noted that there were no lights on defendant’s car, and also noted the courses of the cars just prior to and at the time of the accident, and the physical facts established by their testimony established that defendant’s car was on the edge of the roadway on plaintiff’s right-hand side.

The traffic ordinances of the parish of Ouachita, which were filed in evidence, like the statute (Act No. 120 of 1921), requires that automobiles when driven on the highway after dark shall have two lights on the front of the car, and that the drivers of vehicles, when approaching and passing another from the opposite direction, shall keep to their right of the roadway.

The driver of defendant’s car was violating the law in driving at night without headlights and in driving on his left-hand side of the roadway. He was guilty of gross negligence and we are of opinion that his negligence was the proximate cause "f the accident. By driving on the public highway at night without headlights and on his left-hand side of the roadway he created a hazardous situation and whereby plaintiff was, without fault on his own part, placed in a position of danger. On being confronted with this danger plaintiff’s son attempted first to drive his car further to his right-hand side of the roadway to avoid colliding with defendant’s car, and finding that there was not sufficient room for his car to pass between defendant’s car and the ditch without driving his own car into the ditch, he then attempted to avoid a collision by turning his car to the left of defendant’s car, which he thought was not moving. In doing this plaintiff’s son was not guilty of contributory negligence for the reason that he had not created nor contributed to the creation of the hazardous situation and exercised his best judgment in seeking to escape from the impending danger.

After reading all of the evidence, we are convinced that the judgment of the District Court is amply supported thereby.

The amount of damages allowed by_ the trial court seems to us to be reasonable and proper.

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


text:
    No. 2720
    Second Circuit
    MRS. MINA SIESS, WIDOW, ETC., v. COUVILLION, SHERIFF, ET AL.
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

      1. Louisiana Digest — Execution—Par. 74, 114, 145, 174.
    In view of Article 642, par. 6, of the Code of Practice, when the sheriff seizes property under writs of fi. fa. within seventy days after the date of their issuance, or previous to their expiration, he was authorized to sell the property after the seventy days under the original. writs.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Mrs. Mina Siess, widow, etc., against C. P, Couvillion, sheriff, et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.

      J. C. Carppel; Porterie & Bordelon, of Marksville, attorneys for plaintiffs, appellant.
    W. E. Couvillion; J. W. Joffrion; A. V. & Phio Coco, of Marksville, attorneys for defendants, appellees.
   ODOM, J.

On January 28, 1926, the judgment creditors of Mrs. Mina Siess, widow of Abe Rich, caused to be issued writs of fi. fa. under which the sheriff of Avoyelles parish seized her real estate.

The seizure was made within seventy days after the date of the issuance of the writs, and it seems that the property was advertised for sale, the sale to take place in the month of March; but due to the fact that no notice of the seizure was made upon the judgment debtor, the property was readvertised for sale under the original seizure, the sale to take place on May 1, 1926.

More than seventy days, therefore, elapsed between January 28, 1926, the date on which the writs issued, and May 1, 1926, the date on which the sale was advertised to take place.

The sheriff held the property all the while under the original writs and seizure. Presumably, the writs were made returnable in not less than thirty nor more than seventy days, as provided by Article 642 of the Code of Practice. But the sheriff did not “make due return of such writs”, nor did he “majke and retain a copy of the writ duly certified by himself” within seventy days.

He proceeded under the original writ and not under a certified copy as required by paragraph 6 of said Article 642 of the Code.

On April 30, 1926, the day before the sale was to take place, Mrs. Siess, the judgment debtor, filed suit to enjoin the sheriff and the judgment creditors from proceeding with the sale on the ground that the writ had expired;- that the sheriff, not having made return of the writ and not having made and retained a certified copy thereof within seventy days, was without authority to hold and sell the property; that- his detention of the property under the original writ after the expiration of seventy days was without warrant and therefore illegal; and being without warrant or authority to hold he was likewise without authority to sell her property.

T'he court issued a temporary restraining order and ordered the sheriff and the seizing creditors to show cause why an injunction should not issue.

Without answering, the sheriff and the seizing creditors tendered exceptions of no cause of action and moved that the restraining order be set aside.

Upon trial the exceptions of no cause of action were sustained, the temporary restraining order was set aside, and plaintiff’s suit dismissed. From which judgment the plaintiff appealed.

OPINION.

The only question presented for our decision is whether a sheriff who seizes real estate under a writ of fi. fa. within . seventy days after the dats of its issuance, may hold and sell the same after the expiration of seventy days without making return of the original writ and without re- • taining a certified copy thereof within that time.

The facts are’ not disputed. The sheriff .seized the property within seventy days after the issuance of the writs but he made no return of the writs, nor did he make a copy thereof within seventy days. He held the property and was about to make a sale thereof under the original writs after the expiration of seventy days.

Article' 642 of the Code of Practice provides that writs of fieri facias shall be made returnable in not less than thirty, nor more than seventy days:

Paragraph 6 of that article of the Code reads as follows:

“And in all cases, except in the parish of Orleans, where a seizure of property shall have been made under a writ of fieri facia, and the officer making such seizure shall not be able to sell such property before the return day of the writ, such officer shall, nevertheless, make due return of such writ; but, at the time of making such return, he shall make and retain a copy of the writ, duly certified by himself; and it shall be his duty to proceed under such certified copy, in the same manner as though the original writ was in his hands, and to 'make due return thereon.”

Under this provision of the Code, plaintiff contends, that even when property is seized under the writ within seventy days, the sheriff must make return of the writ before the expiration of that time, make a certified copy thereof and proceed under the copy and make return thereon; otherwise no sale can be made.

But the settled jurisprudence is the other way.

In the case of Latham vs. Glasscock, 160 La. 1090, 108 South. 100, the court said:

“It is well settled that, where property has been seized under a writ of fieri facias before the return day, the sheriff may retain the writ and sell the property after the time fixed for its return.”

Citing—

Labiche vs. Lewis, 12 Rob. 8.

Aubert vs. Buhler, 3 Mar. (N. S.) 89.

Dugat vs. Babin, 8 Mar. (N. S.) 391.

Rothschild vs. Ramsay, 2 La. 277.

Black vs. Catlett, 1 Rob. 540.

Byrne vs. Taylor, 2 Rob. 341.

In the case at bar, the sheriff seized the property within seventy days. He unquestionably had the right to retain the writ and sell the property after the time fixed for its return.

It is well settled that if no seizure is made by the sheriff within seventy days from the date of the issuance of the writ, the sheriff is without power or authority to seize and sell the debtor’s property under the original writ; but that is not the case here.

It would serve no useful purpose to cite and review the jurisprudence on the subject.

In the case of Latham vs. Glasscock, supra, the leading cases are cited.

Our holding is that inasmuch as the sheriff seized the property under the writs within seventy days after the date of their issuance, or previous to their expiration, he was authorized to sell the property after the seventy days under the original writs.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 2709
    Second Circuit
    BUCKLEY v. LINDSEY MERCANTILE CO., INC.
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Pleading—Par. 23; Judgment — Par. 10.
    A prayer in a petition for all general and necessary decrees will be sufficient to warrant judgment decreeing plaintiff to be owner of the property where the petition asks for an order restraining the sale of the property and, if sold, the price paid by them for the property out of the proceeds of the sale.
    2. Louisiana Digest — Things—Par. 5, 7.
    In order for a movable to be immobilized by destination upon being attached to an immovable, it is essential that the ownership of the movable and immovable, must be in the same person.
    3. Louisiana Digest — Things—Par. 11; Evidence — Par. 53, 58, ■ 59.
    The burden of proof is on the defendant who alleges that a movable property cannot be detached from an immovable without injury.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by James E. Buckley, et al., against Lindsey Mercantile Co., Inc.
    There was judgment for plaintiffs, and defendant appealed.
    Judgment affirmed.
    H. E.. Dawkins', of Parmerville, attorney for plaintiffs, appellees.
    S. L. Digby, of Parmerville, attorney for defendant, appellant.
   WEBB, J.

J. S..Cole was indebted unto the Lindsey Mercantile Company, Inc., the indebtedness being evidenced by promissory notes secured by mortgages on the property of the debtor, and amongst these notes was one for eighteen hundred and fifty-seven and 20-100 dollars of date January 20, 1922, due at one year from date, and secured by a mortgage of the same date on property which is specifically described as follows:

The NW% of the SE% and the W% of the SE% of Section 18, and the N% of the N% of Section 19, Township 21 North of Range two (2) West in Union parish, Louisiana, less and except 40 acres sold to J. R. Bevans; containing 200 acres, more or less. And

“One gin house and lot, one engine and boiler, one double press, two gin stands, and feeders, pulleys, belts, shafting, etc., •attached- to and being a part of said gin outfit complete; said lot and outfit mentioned is located in Shiloh, Union parish, Louisiana.”

The Lindsey Mercantile Company, Inc., filed suit against Cole for the various amounts alleged to be due it, praying for judgment with recognition of the various mortgages securing the indebtedness, and, on September 24, 1925, judgment was rendered against Cole by default with recognition of the mortgage above described, following which a fi. fa. was issued on the judgment and the sheriff seized the prop■erty- of the defendant; his return showing, amongst other property, that described above, and was proceeding to advertise the same for sale when the plaintiff here, J. E. Buckley and J. M. Moore, filed' the present action, alleging that the sheriff had seized—

“One Murray Cotton Press;

“Two Gullett Gin Stands and' Feeders;

“Five pulleys;

“One Lubricator;

“One fan belt;

“One gasoline engine;

"One pump and belt;

“800 feet of one-inch pipe;” property of the plaintiffs, and obtained an order under which the sheriff held the property alleged to be owned by plaintiffs during the pendency of the suit and in obeyance to the further orders of the court.

The Lindsey Mercantile Company, after filing an exception to the jurisdiction ratione personae, (which is not pressed here), answered, denying that plaintiffs were the owners of the property, and further alleged that' if they were the owners the property had been attached to the mortgaged premises and was subject to the mortgage and judgment of the Lindsey Mercantile Company, Inc., against Cole.

Trial was had and judgment rendered decreeing the plaintiffs, J. E. Buckley and J. M. Moore, to be the owners and entitled to the possession of one Murray cotton press, two Gullett gin stands and feeders, five pulleys, one lubricator, one fan belt; and further decreeing that the gasoline engine, pump and belt, and eight hundred feet of one-inch pipe, were not seized by the sheriff and were therefore not' involved in the suit.

The Lindsey. Mercantile Company, Inc., appealed, and it urges that the judgment should be reversed for the following reasons:

First: That the judgment recognizing plaintiffs as the owners of the property was not authorized by the prayer of plaintiffs’ petition.

Second: That the evidence does not establish plaintiffs’ ownership of the property, and if so, it shows the property to have been so attached to the property of Cole which was covered by the mortgage and seized by the sheriff as to have lost its identity.

On the trial in the district court the parties presented their claims without tegard to defenses, which might be considered technical, and we confine our discussion solely to the questions raised by the appellant, Lindsey Mercantile Company, Inc.

I.

The plaintiffs alleged that they were the owners of the property described, and asked for an order restraining the sale of the property, and they prayed for the issuance of the order and that it be maintained on final hearing, and in the event the court should determine that any part of the property was subject to the judgment of the Lindsey Mercantile Company, Inc., that plaintiffs have judgment for the price paid by them for the property to be paid out of the proceeds of sale; and further prayed for all general and necessary decrees.

The defendant denied plaintiffs’ alleged ownership, and defendant, of course, could not have been surprised by the evidence introduced on that question; and we are of the opinion that the prayer for all general and necessary decrees, when considered with the allegations of the petition, was sufficient to warrant the judgment decreeing the plaintiffs to be the owners of the property, the decree not being in conflict with the relief specifically prayed for.

Newton vs. Gray, 10 La. Ann. 67.

Espinola vs. Blasco, 15 La. Ann. 426.

Henry Lochte vs. Lefebre, 124 La. 244, 50 So. 26.

Kinder vs. Scharff, 125 La. 594, 51 So. 654.

Also—

Eagan vs. Brown, 14 La. Ann. 684.

Bloch & Co. vs. Menard 2 Orl. App. 436.

II.

The property claimed by plaintiffs was placed on the mortgaged premises subsequent to the date of the mortgage, and there is not any evidence in the record in conflict with the testimony of the plaintiff and J. T. Cole, who stated that the property had been purchased by plaintiffs and placed by them on the property with the consent of Cole and that it was not sold to Cole, but was placed on the property and attached to the gin plant merely for the purpose of enabling the plaintiffs and others to have their cotton ginned; and we are of the opinion that the ownership of the plaintiffs is conclusively established.

The evidence relative to the manner in which plaintiffs’ property was attached, we find, would have been sufficient to have immobilized it had it been the property of J. T. Cole, the owner of the immovable to which plaintiffs’ property was attached; but it must be conceded that in order for an object or thing which, from its nature, is movable, to be immobilized by destination on being attached to an immovable, it is essential that the ownership of the movable and immovable, must be in the same person.

Hibernia Bank vs. Planting Co., 107 La. 650, 31 So. 1031.

And it follows that plaintiffs’ property was not immobilized by being attached to the property of J. T. Cole, and from this point of view it cannot be said that plaintiffs’ property was covered by the mortgage given by Cole, or that the property' of the plaintiffs had become subject to the judgment rendered against Cole; and if the plaintiffs’ property became subject to the mortgage given by Cole, or to the payment of the judgment rendered against him, it must have been for another reason than its having been immobilized by destination.

It is not contended, of course, that the plaintiffs’ property has lost its physical identity, and the evidence shows that it may be detached without inury to the property to which it was attached; and while it may be that some of the property, pipe and lubricator, might have been used in repairing the machinery, the evidence does not establish that fact; and if it was so used and could not be detached, the burden of proof was on the defendant.

The judgment is affirmed.


text:
    No. 2732
    Second Circuit
    BANK OF WEST CARROLL IN LIQUIDATION v. BROWER
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Party Walls — Par. 3, 6.
    In view of Articles 678, 679, 681 and 682 of the Civil Code, every co-proprietor of a wall in common may be exonerated from contributing to the repairs and rebuilding by giving up his' right of common, provided no building belonging to him be supported by this wall.

      2. Louisiana Digest — Party Walls — Par. 3, 6, 8.
    An adjoining landowner who repairs a wall in common which was damaged by a fire cannot force his neighbor to contribute to this repair by filing a lien and privilege on the building for the repairs made because Articles 3262 and 3264 of the Civil Code do not apply; Article 679 of the Civil Code giving him no right to make his neighbor contribute.
    Appeal from the Seventh Judicial District Court of Louisiana, Parish of West Carrol. Hon. John R. McIntosh, Judge.
    ■ Action by Bank of West Carroll in Liquidation against D. M. Brower.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. L. Bagwell, of Rayville, attorney for plaintiff, appellee.
    George Wesley Smith, of Rayville, attorney for defendant, appellant.
   ODOM, J.

The plaintiff bank and defendant owned brick, buildings on adjoining lots in the town of Forest, West Carroll parish, Louisiana. The plaintiff’s lot is a small one, only twenty by forty feet, situated on the corner of a block. The north and west walls of plaintiff’s building were common or partition walls and were built up as high as the ceilings. They were built strong enough to support the ceiling and roofs of both buildings.

In December, Í922, while the plaintiff bank was in process of liquidation, the ceiling, roofs and all other woodwork of both buildings' were destroyed by fire, but the walls being of brick, were left standing.

' The' bank being in liquidation had no further use for a building there and for that reason did not wish to repair it. About two years later, however, on November 10, 1924, the defendant, Brower, let a contract for the repair and reconstruction of not only his own building but the bank building as well for $2270.00. The contract provided that the contractor was to repair—

“* * * the brick building in Forest, La., owned by party of the first (Brower) and Bank of West Carroll.”

Under this contract there was a new roof put over the bank building, the ceiling was repaired, the casings, window and doors were put in, and, in fact, everything was done to repair the damage done by the fire, except the replacing of certain railings inside the bank building.

The bank did not join in the contract for repairs, nor did it agree to have its building repaired.

But on November 12, 1924, two days after Brower let the contract, he addressed the following letter to W. L. Bagwell, liquidator of the bank;

“Please take notice that I am preparing to let contract to repair the fire damages done to my building and the building occupied by the Bank of West Carroll, which buildings we own jointly. It is impossible to repair one without repairing both. The contract for the joint repair will be $2279.00. The pro rata of this for the .Bank of West Carroll is estimated to be by the contractor, $850.00.

“Very respectfully,

“D. M. Brower.”

The bank refused to pay any part of the bill for repairs.

On January 27, 1925, Brower made affidavit before a notary public as follows:

“State of Louisiana,

“Parish of West Carroll.

“Before me, the undersigned authority, personally came and appeared D. M. Brower, who states on oath that the attached bill for lumber, roofing, doors and windows, and labor for work performed in doing repairs, is a true and correct bill of material and labor furnished in repairing the building known as the West Carroll Bank Building and situated on the southeast part of lot 6 block H of the town of Forest, Louisiana. That said bill, amounting to $900.00, is correct to the best of my information and belief; that none of said bill has been paid, and that said material and labor was used and furnished in repairing said above described bank building. That it was necessary to make repairs in the repairing of affiant’s brick building, the above described bank building being a part of affiant’s building, and that it was impossible to make repairs on affiant’s building without making said repairs on the bank building belonging to West Carroll Bank. The said West Carroll Bank refusing to make such repairs and affiant being compelled to make such repairs in order to preserve and protect his own property.”

He caused this affidavit to be inscribed in the mortgage records of West Carroll parish in order to preserve his lien and privilege on the building.

The plaintiff bank, through its liquidator, brought this suit to have the inscription of this lien erased from the record, alleging that it is not liable for the amount claimed.

It further alleged that the defendant was a trespasser upon its property and had nailed up the doors and windows of its building and had permitted to be removed from the building a time clock attached to the safe valued at $300.00, for which amount it asked judgment.

Defendant in answer admitted that plaintiff owned the brick building claimed by it and the lot of ground on which it was situated, and he alleged that after the fire the walls of plaintiff’s building were left standing exposed to the elements without protection with all woodwork, gone; that he made the repairs and expended said sum—

«* * * for the purpose of protecting and. preserving his own property and for the purpose of rendering the entire property subject to and fit for habitation.”

It is further alleged that plaintiff owned the outside walls of its building and only a half-interest in the inside walls, and that plaintiff’s property for two years stood unprotected, was rapidly deteriorating and falling into decay, and that it was his duty to have it repaired along with his own; that it was not practical to rgpair his own building without repairing-that of plaintiff at the same time.

He reconvened, asking for judgment against plaintiff for $900.00, plaintiff’s pro rata part of the cost of the repairs.

The district court rendered judgment for plaintiff, ordering whatever lien may have arisen from the inscription of dedefendant’s affidavit in the mortgage record of the parish cancelled and erased, but rejected its demand for $300.00 money judgment, and also rejected defendant’s demand in reconvention.

Defendant appealed.

OPINION.

The testimony" does not show, in fact it is not contended, that any one representing the plaintiff bank authorized defendant to make the repairs on its building. There was some conversation between defendant and Mr. Bagwell, liquidator of the bank, about the repairs, but no agreement was reached between them.

As already stated, the two buildings were on adjacent lots. The walls between the two buildings were common walls. otherwise neither party had any interest in the building of the other.

Defendant wanted to repair his building; plaintiff had no further use for its building, and therefore would not repair it.

We have been referred to no law and we know of none authorizing an adjoining property owner to repair his neighbor’s property and charge the expense to him in the absence of an agreement to that effect.

The fact that plaintiff’s property, that is, the brick walls, were left unprotected and exposed to the elements and in consequence would soon fall into decay and ruin was not a matter which should concern the defendant. If the plaintiff bank did not which to protect its property that was its own affair.

But we are convinced from all the testimony and from statements in the brief filed by defendant’s counsel that defendant made the repairs to the bank building not through any desire to benefit plaintiff but because it was to his advantage to do so.

Defendant testified that the two common walls, one on the side and the other on the rear of the bank building, were constructed of cheap, common brick; that the plaster was caused to fall off by the fire; that in the condition- in which they stood after the fire and at the time the repairs were made they were unsightly and absorbed water and were unsafe. It therefore follows that if these walls had been used by him it would have been necessary to strengthen and plaster them at some expense. He says that the outside walls of plaintiff’s building were constructed of hard brick which cost practically three times as much as these used in the inside walls. These outside walls of the bank building were in good condition and by repairing' the two buildings he would have the advantage of these outside walls and would be saved the expense of repairing the inside or common walls.

Besides, Mr. Hicks, who repaired the buildings, testified that if defendant’s building had been repaired without repairing the bank building, these inside or common walls would have to be raised about six feet at a cost of something like $300.00 and that in the condition they were then they would not support the roof; it would have been necessary to strengthen them.

Mr. Sims, another builder, testified that it would have been necessary to raise the inside walls eight feet and that they would not support the additional weight.

These inside or common walls it seems would have supported the weight of the ceiling but not of the roof. Therefore defendant constructed the roof over both buildings and used the outside walls of the bank building to support it. Defendant was therefore saved the expense of raising and strengthening the common walls which would have become the outside walls of his building if he had not made use of the outside walls of the plaintiff’s building.

The law in cases of this kind is clear.

Article 678 of the Civil Code provides that repairs to and building of walls in common are to be made at the expense of all who have a right to the same in proportion to their interest therein; and Article 679 reads as follows:

“Nevertheless every co-proprietor of a ■wall in common, may be exonerated from contributing to the repairs and rebuilding, by giving up his right of common; provided no building belonging to him be actually supported by the wall thus held in common.”

After the fire plaintiff abandonedt the use of the walls in common. No part of its building was supported by these walls. Therefore under the plain letter of the Code it cannot be charged with the repairs. i

As stated, in order for defendant to make further use of these walls it was necessary for him to raise and strengthen them.

This is also provided for in the Code, for Article 681 provides that—

“Every co-proprietor is at liberty to increase the height of the wall held in common, but he alone is to be at the expense of raising it * *

And Article 682 reads as follows:

“If the wall held in common cannot support the additional weight of raising it, he who wishes to have it made higher is bound to rebuild it anew entirely at his own expense, and the additional thickness must be taken from his own property.”

Defendant, of course, was at liberty to make use of these common walls, to raise them, to make them thicker and stronger; but the expense for doing so must be borne by him, and the plaintiff cannot be called upon for any part of the expense as long as it abandons and makes no use of them.

Counsel for defendant cites Articles 3262 and 3264 of the Code in support of his contention that the defendant is entitled to a privilege on the building for the repairs made; but these articles have no application in a- case like this.

The lower court rejected plaintiff’s demand for $300.00. Plaintiff did not appeal nor has it asked that the judgment be amended so as to allow that amount.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed; all costs to be paid by defendant. ■


text:
    No. 2766.
    Second Circuit
    TILLER v. CITY OF MONROE
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus liy the Editor.)

    1. Louisiana Digest — Evidence—Par. 1,10.
    It is not necessary for the plaintiff to allege that a city is a muñicipal corporation. The court takes judicial notice of that fact.
    2. Louisiana Digest — Municipalities—Par. 266, 267; Pleading — Par. 18, 26.
    Where one sues a city for damages it is not necessary to allege that the negligence charged against the municipality did not arise in the discharge of any governmental function in order to state a cause of action.
    3. Louisiana Digest — Municipalities—Par. 260, 266, 267; Pleading — Par. 18, 62.
    A damage suit against the municipality in which the plaintiff does not allege that she used ordinary care or that the city had notice of the obstruction which caused the accident will not cause the suit dismissed on exception no cause of action if she alleges sufficient to permit the introduction of evidence, to show ordinary care and that the city had implied notice of the obstruction.
    4. Louisiana Digest — Municipalities—Par. 258, 261, 263.
    One who is walking on a sidewalk without knowledge of a particular obstruction, had the right to assume that the way was safe, and not being bound to anticipate the obstruction, the fact that she did not do so, did not defeat her right of action for want of exercising-ordinary care; especially where the street was poorly lighted and the obstruction was small.

      5. Louisiana Digest — Municipalities—Par. 260.
    An obstruction to a sidewalk in the business district of a city that had existed for a month, although it could have been • easily removed, constituted implied notice to the city that the obstruction existed.
    6. Louisiana Digest — Municipalities—Par. 255.
    Keeping the sidewalk of a city clear of obstructions is an administrative function and not a governmental duty. •
    7. Louisiana Digest — Municipalities—Par. 255.
    It is negligence of a city and its agency to allow an obstruction to remain on a sidewalk in the heart of the business district for a period of a month.
    Appeal from the Fourth Judicial District Court of Louisana, Parish of Ouachita. Hon. Percy Sand el, Judge.
    Action by Mrs. S. C. Tiller against City of Monroe.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dawkins & Dawkins, of Monroe, attorneys for plaintiff, appellee.
    H. H.' Russell, of Monroe, attorney for defendant, appellant.
   WEBB, J.

The plaintiff brought this action to recover judgment for damages for injuries sustained by her through the alleged negligence of defendant.

She alleged that the city of Monroe, of which Arnold Bernstein is mayor and H. R. Speed and W. A. Atkinson are commissioners, is indebted to her in the sum of $5,000.00; that at about 9 o’clock on the night of February 10, 1924, while she was walking from her home, on the west side of Hart street in the city of Monroe, Louisiana, going up the west pavement on said street, towards DeSiard street, her foot came in contact with a parking sign post which was four or 'five feet in length and four by four inches in thickness, that had been erected by the city authorities' of Monroe near the west sidewalk of said Hart street' and which parking sign post had fallen or been knocked down and lay along the sidewalk and was lying across the sidewalk at the time of the accident, impeding and endangering the passage of pedestrians; that the night was dark and she did not see the post, and when her foot struck against the post she was thrown to the ground; that the post had been lying along the sidewalk for two or three weeks prior to the time of her injury, and that the city of Monroe, its officers and agents were grossly negligent in leaving said post in such position on the sidewalk where it might at any time be moved across the sidewalk and cause injury to any passerby; and that her said injury was due entirely to the gross fault, negligence and carelessness of the city of Monrone, its officers and agents, in permitting said parking sign post to remain on the sidewalk.

The city of Monroe filed an exception of no cause of action, which was overruled, and it answered, pleading in effect, a general denial,- but especially alleged that if the plaintiff was injured it was due to her own carelessness and negligence in that the obstruction, if such it was, was at a place in the heart of the business district, which was well lighted, and the obstacle should have been seen by plaintiff, if she was exercising ordinary care.

After the answer was filed, but before the case had been fixed for trial, plain-tiff was permitted, over the objection of defendant, to file an amended petition, in which it was alleged that the negligence of the city was in the exercise of its administrative functions and not in the exercise of its governmental duties.

On trial judgment was rendered in favor of plaintiff and against defendant for two thousand dollars, and defendant appealed.

The plaintiff answered the appeal, praying that the judgment be amended and that she be granted judgment for the amount claimed.

OPINION.

The defendant contends the judgment should be reversed, on the ground that the exception of no cause of action should be sustained and that the plaintiff failed to establish that she was in the exercise of ordinary care or that the city had notice of the obstruction in sufficient time to have removed it before the accident; while plaintiff contends the amount awarded her should be increased.

The exception of no cause of action is pressed on the following grounds:

1. That plaintiff does not allege defendant is a municipal corporation;

2. That she failed to allege the negligence charged did not arise in the discharge of a governmental function;

3. That she did not allege she was in the exercise of ordinary care; and,

4. That she did not allege the city had notice of the obstruction in sufficient time to have removed it before the accident.

I.

• While there is some conflict of authority as to the necessity of alleging the corporate existence of a private corporation when made defendant in a suit, we do not think it was essential to allege the corporate existence of defendant.

The defendant is designated by its proper name “City of Monroe” and the court should take judicial notice of its corporate existence; and this being the case, it was not necessary to allege that fact.

II.

The law requires municipal corporations to maintain their streets and sidewalks in a reasonably safe condition for use by persons exercising ordinary care, and the facts alleged by plaintiff clearly show that her action is based on, and that the charge of negligence is made against defendant for, failure to comply with such requirement; and while we do not think the petition was defectiye for failure to specifically allege that the negligence charged against defendant did not arise in the discharge of any governmental function, but, if it was defective in this respect, it was cured by the amendment, which was properly allowed. (National Park Bank vs. Concordia Land & Timber Co., 159 La. 86, 105 So. 234.)

III.-IV.

While plaintiff does not specifically allege she was exercising ordinary care or that defendant had notice of the obstruction in sufficient time to have removed it before the accident, she does allege that the night was dark and that she did not see the obstruction, and she also alleges the place and nature of the obstruction and that it had existed in the locality for about three,weeks; and althpugh her allegations are vague, we are of the opinion they are sufficient to permit the introduction of evidence to show that plaintiff was exercising' ordinary care, and that the city should be held to have had implied notice of the obstruction (James vs. City, 151 La. 480, 91 So. 846), and that she states a cause of action.

MERITS.

The evidence shows that while plaintiff was walking along the sidewalk on Hart street at about 9 o’clock at night, she tripped on a piece of timber, 3" by 3" square, and about 4' long, which was lying across the sidewalk at an approximate distance of fifty feet from the intersection of Hart and DeSiard streets, which was in the heart of the business district of the city.

That the piece of timber was originally used as a sign post to designate parking limits on Hart street, where it had been placed in an upright position on the sidewalk at approximately the location where the accident occurred; but some time before the accident (about a month) the post had fallen, and since that time had lain on the sidewalk on Hart street, next to and parallel with the wall of a brick building which fronted on DeSiard street, until the evening of the accident when it was in some manner removed from its posiiton next to and parallel with the wall and, at the time of the accident, was lying across the sidewalk. •

The plaintiff lived on Hart street to the rear of the building which fronted on DeSiard street, and from her home as well as when she had occasion to use the sidewalk, she had noticed the position of the timber as it lay next to the wall where it had remained for about a month and until a few hours prior to the accident, hut she did not know that the timber had been moved and of its position at the time of the accident.

There was an arc lamp at the intersection of Hart and DeSiard streets which, if lighted and brilliantly burning would have lighted the place of the accident; but plaintiff testifies it was dark at that place at the time of the accident, her testimony be'ing in part as follows:

“Q. Except for the lights on -DeSiard street at the corner, are there any lights between DeSiard street south of the next corner?

“A. No light in my street, no, sir.

“Q. Is the sidewalk paved at the point where you fell over the parking post?

“A. It was paved where I was walking, yes, sir. * * *

“Q. This post was a wooden post?

“A. Yes, sir.

“Q. Painted white?

“A. Yes, sir.

“Q. You spoke of a light. There was an arc light right at the corner of Hart and DeSiard streets, was it?

“A. I think there is one there.

“Q. You don’t recall?

“A. Where I fell it was dark.

“Q. Always been a lighted corner where you could see anybody coming or see anything if it amounted to anything?

“A. Next to the street.

“Q. Fifty feet away from the street?

“A. It was dark you know; no light there.

“Q. No light where you fell?

“A. You could see the reflection of it in the street.

“Q. No light where you fell?

“A. No, sir; no light where I fell.

“Q. Where Hart street comes into De-Siard is there not an arc light there?

“A. I think there is an arc light there, as well as I remember.

“Q. Fifty feet from where you fell?

“A. On DeSiard.

“Q. Right on DeSiard street, at the corner?

“A. Yes, sir.

. “Q. No trees or anything between the corner and where you fell — perfectly open?

“A. Yes, sir.

“Q. Were you walking alone when you fell?

“A. Yes, sir; I was alone. * * *

“Q. Walking pretty fast?

“A. Tolerably fast.

“Q. In a burry to get back?

“A. Yes, sir.”

The defendant did not call any witnesses to show that the arc lamp at the intersection of Hart apd DeSiard streets was burning with sufficient brilliancy to have lighted the place where the accident occurred, nor to prove that the city did not have notice of the obstruction in sufficient time to have removed it before the accident, but accepts the evidence introduced by plaintiff and contends it does not show that she was in the exercise of ordinary care and that the facts established showing the nature and duration of the existence of the obstruction are not sufficient to permit an inference of knowledge of the obstruction on the part of the city in sufficient time to have removed it, and contends that if there is any doubt as to the sufficiency of the evidence it should be resolved against plaintiff.

In it* contention, as we understand, the defendant takes the position that the law not requiring of it to maintain its sidewalks in an absolutely safe condition but only in a reasonably safe condition for use of persons in the exercise of ordinary care, and that the municipality cannot be held to have been guilty of negligence by reason of the existence of an obstruction on the sidewalk which appears to have been permitted rather than caused by it unless it had notice (express or implied) of the obstruction in sufficient time to have removed it before the acci-’ dent; while the plaintiff contends that the burden of pleading and proof is on defendant to show negligence on the part of plaintiff, and that the city did not have notice of the obstruction in sufficient time to have removed it before the accident, and where the evidence leaves any doubt as to such questions it should be resolved against defendant.

While the respective positions of the parties may be the subject of controversy, we are of the opinion that the burden of pleading and proof of negligence was upon the defendant where plaintiff had alleged and shown negligence on the part of the defendant (Baldwin vs. Consumers L. & P. Co., 2 La. App. 442 and authorities cited); and while there was an exception in the case of Weinhardt vs. City, 125 La. 351, 51 So. 286, which is cited as supporting the view that the burden of pleading and proof is on defendant to show want of notice, yet in that case it was said:

“There is no negligence for which she (City of New Orleans) can be held, unless it appears that she has been warned or notified either expressly or impliedly.”

And the great weight of authority seems to be that the burden of pleading and proof is on the plaintiff in actions such as the present, to show that the city had notice (James vs. City, 51 La. Ann. 480; Wiltz vs. City, 2 La. App. 444; “Highways”, R. C. L., vol. 13 No. 401).

Considering the facts stated and the evidence quoted as to whether or not the defendant was negligent and, if so, whether it appears that plaintiff was in the exercise of ordinary care, or that she was guilty of negligence.

The obstacle or piece of timber was, we think, where placed on the sidewalk, of such nature as to constitute an obstruction (Blume vs. City, 104 La. 345, 29 So. 106; Labarre vs. City, 106 La. 458, 30 So. 891); and although it may not have been as dangerous an obstruction as it lay along the sidewalk and parallel with the wall as when iü lay across the sidewalk, yet if it was in the original position for a sufficient length of time to permit an inference of knowledge of the situation, it follows that the city should be held to have had knowledge of the particular obstruction resulting from the timber lying across the sidewalk, as from the nature of the object and its position on the sidewalk parallel with and next to the wall the ■ city should have anticipated it might be' knocked from its position next to the wall and placed across the sidewalk. (Orser vs. New York, 111 N. Y. Supp. 670.)

The evidence shows that the obstruction was in the heart of the business district of the city and that it had existed for a period of one month, and we are of the opinion, considering that the object as it lay on the sidewalk constituted a patent obstruction which could have been quickly removed, and that the obstruction was in the héart of the city, that the city should be held to have had implied notice, although the obstruction had existed for only a short [period. (See, Lorenz vs. City, 114 La. 802, 38 So. 566; Brill vs. Buffalo, 35 N. Y. Supp. 359; Parsons vs. Manchester, 27 Atl. 88.)

Relative to the contention that the evidence does not show the plaintiff was in the exercise of ordinary care, she states that the place where the accident occurred was dark, and although it appears there was an arc light at an approximate distance of fifty feet from the place of the accident, we think her statement must be accepted (Weber vs. Union Dev. Co., 118 La. 77, 42 So. 652; Shidet vs. Dreyfus, 50 Ann. 281, 23 So. 837); and persons who use the sidewalks ordinarily having the right to assume the way to be reasonably safe, we do not think it could be said the plaintiff was not in the exercise of ordinary care, unless it be that she being aware of an obstruction in the same locality could not assume that the way was safe hut was bound to anticipate an obstruction in the locality, or that she, having knowledge of the obstruction in that locality, was negligent in using the sidewalk where it was so dark that she could not see the obstruction.

We do not think the evidence shows that it was “pitch” dark at the place where the accident occurred, or if it did, that plaintiff would have been guilty of negligence in using the sidewalk (Mosheurel vs. District of Columbia, 191 U. S. 258, 48 Law Ed. 174; Robertson vs. Jennings, 128 La. 795, 55 So. 375; Lemoine vs. City of Alexandria, 151 La. 562, 92 So. 58); and if the plaintiff was guilty of any negligence it could not have been by reason of her using the sidewalk, or that she was walking fast or hurriedly, but for failure to anticipate the presence of an obstruction in that locality.

The plaintiff did not say that she looked for the obstruction but she says it was dark at the place of the accident, although she says there was some reflection of the light in the street from the arc light at the intersection and that she was hurriedly walking at the time of the accident, and we think it only a fair inference from the evidence to say plaintiff could have seen the obstruction had she looked, but that the place was not sufficiently lighted for her to have noted the obstruction on a casual observation.

We have said that the city having knowl- • edge of the position of the piece of timber as it lay on the sidewalk next to and parallel with the wall, and of the obstruction at that point, should be held to have had knowledge of the particular obstruction where plaintiff tripped and fell, which was in the same locality and caused by the same object, for the reason that the object constituting the obstruction as it lay .next to and parallel with the wall, was of such nature that the city was bound to anticipate it might be moved at any time to another position on the sidewalk in the same locality, and it appearing that plaintiff also had knowledge of - the position of the piece of timber as it lay next to and parallel with the wall, it might be urged she should be held to have had knowledge of the particular obstruction where she tripped and fell.

However, we do not think this necessarily follows, as the city’s knowledge of the particular obstruction on which plaintiff tripped and fell is not primarily based upon the fact that the obstruction was in in the same locality and caused by the same object, but on the fact that the city knowing of the existence of a situation or condition which it should reasonably have anticipated would become dangerous, cannot be held to have been unaware of the situation anticipated; but this cannot be applicable to plaintiff, as it cannot be said that she, having knowledge of defendant’s negligence in one instance should anticipate its negligence in another.

The plaintiff being without knowledge of the particular obstruction, had the right to assume that the way was safe, and not being bound to have anticipated the obstruction, the fact that she did not do so cannot be said to show that she ¡vas not exercising ordinary care; and as it does not appear that the object constituting the obstruction was of such bulk, or the place of the accident so lighted, as to warrant an assumption that she should have seen the obstruction, plaintiff should recover.

The plaintiff contends that the amount awarded her should be increased, and cases where similar injuries were sustained are cited in which larger amounts were allowed; but the trial court saw the plaintiff and was in a position to note the effect of the injuries, and we do not find that on the face of the record the amount allowed was inadequate.

The judgment is affirmed.


text:
    No. 2714
    Second Circuit
    BROWN-ROBERTS HARDWARE & SUPPLY CO. v. MOUNGER
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 230, 241.
    In a redhibitory action by which the purchaser successfully resisted the payment of the purchase price because of the worthlessness of the engine sold, the seller has the right to take back the engine.
    2. Louisiana Digest — Obligations—Par. 1, 3.
    Under Civil Code, Article. 1893, an obligation without a couse can have no effect.
    3. Louisiana Digest — Sales—Par. 151, 152, 216, 218. ■
    Where there is a special warranty that an engine will be suited to the purposes for which it was bought, its failure to do so and that of the seller to remedy it, although he was notified in time, will be sufficient to enable the purchaser to resist the payment of the price.

      Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    Action by Brown-Roberts Hardware & Supply Company, Ltd., against Y. A. Mounger.
    There was. judgment for defendant and plaintiff appealed.
    Judgment affirmed in part but reserving right to plaintiff to further proceed in case it elects to equip the engine.
    Judgment appealed from set aside.
    White, Holloman & White, of Alexandria, attorneys for plaintiff, appellant.
    J. C. Capal, oí Marksville, attorney for defendant, appellee.
   ODOM, J.

The issues and the facts involved in this case are fully set forth in a written opinion by the district judge, which we find correct and which we adopt, as follows:

“Dr. Curry Cappel, being in need of a gasoline engine to operate a syrup mill, obtained the permission of Y. A. Mounger, the defendant, to buy one on his account from the plaintiff, Brown-Roberts Hardware & Supply Company, Limited. He, the said Cappel, in company with C. A. O’Brien, his overseer, accordingly went to plaintiff’s place in Alexandria and made known his want to the salesman in charge of the mill and supply department, J. C. Carrón, who showed Cappel and O’Brien an engine at a price of $256.32, less 10%. The purchase was not made at that time, but later through the telephone. The engine was shipped, received and installed at Cappel’s mill near Evergreen.

“The court is under the impression, although no note has been made to that effect, outside of an answer, that it is understood that Cappel is the man to whom the plaintiff looks for the - payment, and not Mounger.

“Payment was not made for the engine, and suit was filed, asking for a monied judgment for the price of the engine, namely, $256.32. For the purpose of the decision of this case, we will leave Mounger out, reserving to the plaintiff the right to further proceed against him if desirable, and direct the consideration to Cappel and the real debtor.

“Cappel refused payment, or denies liability, because of the alleged fact that the engine was guaranteed to run his cane mill by Carrón, plaintiff’s salesman, and that it failed to do so as guaranteed; that if it is made to effectively run the mill he will pay for it.

“The case was tried and, in the opinion of the court, the only question for determination is that of whether or not it was guaranteed to run that mill, and if so, did it do it.

“Carrón denies that he guaranteed that the engine would run the mill in question, but that he guaranteed it to run any 12-inch mill, or ‘that it was an eight-horsepower engine and would guarantee it to pull a mill that required an eight-horsepower engine to puli’. Further, ‘that any mill that required an eight-horsepower engine to pull it’. That he pointed to a 12-inch mill in the store and said that it' would run a mill like that. He testifies that he heard Cappel was having trouble with the engine and went with him to the mill, that the mill was larger than the one in the store, but that he did not measure Cappel’s mill, and was not positive that Cappel’s mill is a 12-inch mill. That he found nothing the trouble with the engine, that it was mechanically in good shape.

“Cappel testified that Carrón guaranteed the engine to pull his mill. That it' was described to him, the kind and size, that he bought it on Carron’s recommendation. That he did not pay because it did not do the work satisfactorily; that' if made to do the work as reqiured he will pay for it.

“O’Brien testified that he was with Cappel and Carrón in the store when the question Qf the engine was discussed; that it was particularly described to Carrón, and that Carrón ,guaranted that the engine would do the work. That it was installed but would not give the necessary power; that a new coil was sent and that did not relieve the situation. That Carrón recommended an eight-horsepower engine; that he, OBrien, did not do any figuring, but Carrón did, and it was on his recommendation that the engine was bought.

“Herbert Ducote, an expert mechanic, testified that the Cappel mill is a 12-inch mill. That the engine is an eight-horsepower engine. That it would operate the mill if it worked as supposed. That the engine is or was not equipped for that mill, on account of its being equipped with battery ignition. That it should have been equipped with high-tension magneto. That it was not possible to operate the mill with the engine as received and equipped. That that type of engine is not the type used for syrup mills. That he worked on all syrup mills there. That all 12-inch mills are supposed to require the same horsepower. That the size of the rollers govern the power of the engine.

“Gelsoe, another expert mechanic, testified on behalf of plaintiff that he went to see the engine and that, with the exception of a few minor adjustments, it was in perfect condition. That, in his opinion, the trouble is with the pulley, whose bore is %-inch larger than the shaft, and that it was wrongly bushed, that it was there a whole lot of power was lost. He did not know how much effect it would have on the engine; that it formed, as it were, an eccentric, causing the engine to jerk and decrease the power. That he did not notice if that engine was built for magneto or not. That he did not measure the mills, nor the pulleys; could not, under oath, tell the degree of power lost. That he did not know of any syrup mill run by such an engine with dry battery. That he did not know of any engine of that power where there was not a magneto; that a magneto is better on that engine — would operate longer and better. That Ducote should have been in better shape to judge of the trouble, having seen an actual demonstration of it under grinding. That it looked to him that it was an eight-horsepower engine, but did not test it.- That he did not see anything about the engine indicating that it had been jerked out of place by defective pulley. That he did not examine the engine inside; that it would not have to be injured outside. That it had been run on retarded spark, then that he thought it had been run on retarded spark.

“Carrón further testified that it was an old mill and whether or not the age of the mill had anything to do with the engine depended upon the condition in which it was; that he did not see the engine at work; that he did not attach it to the mill; that he did not make any detailed examination of the mill, did not know the size, was interested in the performance of the engine.

“Ducote was placed on the stand to rebut Kelsoe’s testimony relative to the defective pulley, and said that there was nothing to indicate that the engine or anything about it or the mill was out of line; that everything was in line; that even if the pulley was out of line or center it did not matter or reduce the power; that that was regulated by the belt and idler. That the belt and the idler would correct any little irregularity, whether it be in the plumbing, bushing, or whether it be out of line for any other cause.

“Now, the question: Was there any guarantee that it would run Cappel’s mill? The mill is positively testified to be a 12-inch mill. Carrón guaranteed the engine to run a 12-inch mill. Cappel and O'Brien testified that such a guarantee was made.

“Caippel needed an engine; went there to buy one, relied upon what Carrón told him after describing his mill; bought the engine, installed it, and it proved not to do the work.

“Ducote said that that engine would not operate the mill satisfactorily unless equipped with a high-tension magneto.

“Kelsoe said that the trouble was with tb|e pulley.

“Ducote said that' the pulley was not the trouble.

“Kelsoe did, not see the engine under demonstration. Ducote saw it.

“Ducote is positive throughout his testimony. Kelsoe is not positive.

“Cappell was at all times willing to pay for the engine if it was made to do the work. It was not made to do the work. It is true it was used for one grinding season, hut it was testified positively that it did not work satisfactorily.

“Therefore, there is a preponderance of evidence in favor of Cappel that the engine was guaranteed to pull his will, which was (particularly described. Ducote is positive in all his testimony, and having been on the ground and seen an actual demonstration of the engine during the grinding season, the court feels that it should accept his testimony.

“Consequently the court is of the opinion that the engine was not defective, properly speaking, but improperly equipped and not suitable to operate a syrup mill. That it was guaranteed to operate a 12-inch mill, which is the size of the Cappel mill. That it failed to operate same' as guaranteed; that plaintiff was notified of that fact and had time to remedy it.”

Counsel for plaintiff say, in brief, that if the engine had been defective defendant’s defense was a redhibitory action and that defendant should have brought suit to set aside the sale, in which event he should have tendered the engine back to the vendor.

But a reading of the pleadings disclose that the defense to the action brought by plaintiff is that the engine was sold under a special warranty by the seller that it was suitable for the purpose for which it was bought and that it was not suitable for that purpose and that, therefore, the cause or consideration of the contract failed.

He resists plaintiff’s demand for the price on that ground.

The district judge was of the opinion that the defendant made good that defense under the facts proved, and in that opinion we concur.

The cause or consideration which moved defendant to purchase the engine was that it would develop sufficient power to run his cane mill. He purchased it for that purpose and so informed plaintiff. After making known to plaintiff all the facts as to the kind and size of his mill and the further fact that it was a mill already set up and in use, plaintiff assured defendant that the engine would meet his requirements. It failed to do so and was, therefore, worthless to defendant.

Defendant had the right to resist plaintiff’s demand for the price on that ground.

The contract between plaintiff and defendant was, substantially, that plaintiff was to furnish an engine that would operate defendant’s mill. The engine, having failed to operate the mill, the plaintiff failed to fulfill the obligation of its contract. It, therefore,'follows that defendant is relieved of his obligation to pay the price.

See The National Water Purifying Co. vs. The N. O. Waterworks Company, 48 La. Ann. 773, 19 South. 865.

“It may be pleaded in defense of an action for the price that there has been an entire failure of consideration, as, for example, where the goods are worthless or worthless for the purpose for which sold.”

35 Cyc. 539.

See also 9 Cyc. 339.

An obligation without a cause can have no effect. Civil Code, Art. 1893.

Defendant kept the engine during a part at least of the grinding season of 1924 and used it, and counsel argue that he cannot now claim that it was defective and resist payment of the price on that account, and they cite the case of Hooper vs. Dry Hand Mop Co., Inc., 1 La. App. 621, in support' of their contention.

In that case the purchaser kept and used the goods and made partial payments on the price, and it is not stated in the opinion that any complaint was registered by the purchaser.

Counsel also cite the case of Dreyfus vs. Mrs. Wm. Lourd & Co., 111 La. 21.

In that case the court found that plaintiff had furnished articles of the kind and quality called for and that his warranty went no further.

In the case at bar there was a special warranty that the engine would do a certain thing.

The cases cited by plaintiff do not support its theory.

In the case at bar defendant notified plaintiff as soon as it was found that the engine was not satisfactory, and plaintiff sent a mechanic to look it over. Efforts were made to make the engine function properly, without avail. Defendant made timely and repeated protest's to plaintiff that the engine was not satisfactory. Under the circumstances disclosed, defendant has not forfeited his right to demand that he be relieved of his obligation to pay the price. Both parties made efforts to make the engine function properly, all without effect.

The District Court rejected plaintiff’s demand and ordered the suit dismissed. We approve and affirm the judgment to that extent.

But the court went further and ordered that the engine be held subject to the orders of plaintiff “or until such time as the plaintiff can make good the guarantee under which the said engine was Sold, reserving to the plaintiff the right to further proceed against the defendant in the event the plaintiff elects to so equip the said engine as to meet the requirements of the said guarantee under which it was sold, as indicated in the written opinion assigned by the court”.

We see no reason to further prolong the controversy. We may as well end it now. Plaintiff was called upon to make good its warranty and has failed to do so. It does not claim or demand the right to equip the engine so that it will meet the requirements. Plaintiff has enjoyed all along the right reserved to it by the court below. If the complaint of defendant had been asserted for the first time in his answer to the suit, the case would be different. Plaintiff was called upon repeatedly to make good its guarantee. It either could not or would not do so. Let the controversy be at an end. Of course, the plaintiff may repossess the property, or make such other disposition of it as it sees fit.

For the reasons assigned, it is therefore ordered and decreed that the judgment appealed from, insofar as it rejects plaintiff’s demand and dismisses its suit, is affirmed; and that, insofar as it reserves to plaintiff the right to further proceed against defendant, in case it elects to equip the engine, etc., the judgment appealed from is set aside.

All costs to be paid, by plaintiff, appellant.