text:
    No. 8748.
    Orleans Appeal.
    W. E. ROBINSON & Co., Appellant, v. LOUISIANA BOX CO.
    (December 15, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)
    (Bell, J., dissents.)

      (Byllahus I>y the Court.)

    1. Louisiana Digest, Sales, Par. 121.
    In a contract of sale of “box shooks” to be delivered “as ordered out”, the vendee is obliged to give shipping instructions within a reasonable time.
    2. Louisiana Digest, Sales, Par. 120, 121, 122.
    The failure of the vendee to answer a letter of the vendor asking for shipping instructions and his silence for three months is unreasonable and the vendee will be considered to have abandoned the contract.
    (Civil Code, Art. 2555 — Editor’s Note.)
    Appeal from the Twenty-eighth Judicial Court, Parish of Jefferson, Hon. P. E. Edrington, Judge.
    This is a suit for damages ex contractu
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Merrick, Schwarz & Morris B. Redmond, attorneys for plaintiff and appellee.
    Chas. J. Larkin, attorney for defendant and appellant.
   WESTERFIELD, J.

This suit is for damages caused by the alleged breach by the vendor, the defendant, of a contract of sale of 50,000 “Box Shooks”.

The defense is

■ First: The contract sued on was never assented to by defendant and that consequently there was no contract between the parties.

Second: In the alternative, plaintiff delayed an unreasonable time in giving shipping instructions and consequently abandoned the contract.

The District Court awarded plaintiff a judgment in a sum much less than was claimed and both parties seek a revision of this judgment on appeal.

The defendant, a Louisiana corporation, is a manufacturer of wooden boxes, or “Box Shooks” as the cut and unassembled parts of boxes are called. The plaintiff is a dealer or broker in boxes of the sort manufactured by the defendant and located in Maryland.

Plaintiff entered into negotiations with the defendant for the purchase of a quantity of box shooks. The usual correspondence between prospective buyer and seller ensued and on March 2, 1918, this letter was sent by plaintiff to defendant:

“Gentlemen:
We have yours of the 25th, and enclose herewith contract for 50,000 No. 2 gum Box Shooks, at $10.10 per 100, net cash, 30 days, delivered Baltimore, Md., shipment as ordered out.
Please await shipping instructions.”

The contract referred to in the letter read as follows:

“W. E. ROBINSON & CO.
Brokers and Dealers in
Canners’ Supplies
Bel Air, Md., March 2, 1918.
Sold to W. E. Robinson & Co., Bel Air, Md., For account of Louisiana Box Co., Kenner, La.,
50,000 No. 2- Gum Box Shooks, at $10.10 per 100..
Terms, Net Cash, 30 days.
Delivered Baltimore, Md.
Shipment as ordered out.
Remarks:
APR/EH
Await shipping instructions.
This contract contingent upon strikes, fires, floods, droughts or other providential hindrances beyond the control of the manufacturer or producer of the above described merchandise with whom this contract is placed.
Accepted Buyer___________________________________________________
No acceptance necessary.
Accepted Seller------------------------------------------------------
W. E,. ROBINSON & CO.,
Brokers.
U. S. Food Administration License No. G.03977.
No. A1095
“B” (Buyer’s Copy)

In answer the defendant wrote plaintiff as follows under date of March 7, 1918:

“Gentlemen:
We acknowledge receipt of your esteemed order for fifty thousand (50,000) No. 2 gum box shooks, for which please accept our thanks. The shipment of same will have our prompt attention as soon as wé receive the necessary instructions from you.”

The defendant contends that because of the fact that the form of contract enclosed contained the phrase “no acceptance necessary” and no acceptance was in fact made fey defendant on the face of the formal contract, that defendant cannot be said to have consented to plaintiff’s proposal and no contract can be said to have resulted. But it was not necessary for defendant to have signed the form enclosed by plaintiff in the letter of March 2nd, for its acceptance is sufficiently manifest by its reply of March 7th which must be considered as an assent to the terms of the contract enclosed, particularly, since defendant admits that the contract referred to as having been enclosed in plaintiff’s letter of March 2nd was in fact received by it.

On March 14, 1918, defendant, wrote plaintiff asking for shipping instructions. No answer was received by defendant to this letter and nothing was heard from the plaintiff until some three months later (June 6th) when demand was made that the shooks be shipped in accordance with shipping directions then given. The defendant replied that not having heard from plaintiff in answer to its letter of March 14th, it had cancelled the order.

.It will be observed that the time of delivery mentioned in the contract was “as ordered out”. This phrase has been held to mean that the buyer must give shipping instructions Within a reasonable time. We find the following authorities in plaintiff’s brief:

.“The contention, of defendant’s counsel that the clause requiring i shipments to be made according to' shipping instructions to be given from time to time by the buyers renders the contract void for uncertainty, or enforceable only at the option of the buyer is not sound.” Kinckley vs. Pitts-burg Steel Co., 121 U..S. 264; Cold Blast Transportation Co. vs. Kansas City Boat Co., 114 Fed. 77; Deker vs. Hess, 138 Fed. 647; Boyngton vs. Sweeney, 77 Wis. 55; Ault vs. Dustin, 100 Ténn. 366.
“The contract bound the buyers to give shipping instructions within a reasonable time, and required the seller, within a like reasonable time, to make shipments according to the instructions.” Salmon vs. Helena Box Co., 147 Fed. (C. C. A.), 408.

But counsel says “there is no allegation in the answer that the delay in giving shipping instructions was an unreasonable one, and we submit, therefore, that such a defense, not having been availed of in the answer is no longer open to the defendant”. It is a fact that this defense is not emphasized but we think the situation is saved in this respect by the following language appearing in the seventh and last paragraph of the answer “the plaintiff delayed sending said instructions until June 6, 1918, almost three months after the agreement of sale had been completed and said delay breached the terms of said agreement of salé.”

Was a delay of three months in giving shipping instructions unreasonable . under the circumstances of this case is the final question for our consideration.

“Where the goods are to be delivered when the buyer gives notice of his readiness to receive them, or gives shipping directions, the buyer is bound to act within a reasonable time and his failure to do so will exonerate the seller from the necessity of doing that, e. g., shipping the goods, which was to be done when the buyer had so acted.” Mechem on Sales, Vol. 2, p. 974.
“What is a reasonable time in these cases is usually a question of fact to be determined by the jury in view of all the circumstances of the case; but where the facts are not in dispute, or the matter can be ascertained from the language of the contract, it may be determined by the court as a matter of law.” Supra, p. 974a.

Defendant’s letter of March 14th requesting shipping instructions was an offer to perform its part of the agreement upon being advised as to how and where delivery could be made. No explanation whatever is made of plaintiff’s failure to answer that letter. It certainly required an answer from consideration of business courtesy at least. A silence of three months during which the shooks are proven to have advanced in price, a fact which plaintiff suggests as influencing defendant’s conduct, might as well be said to have influenced defendant to break the long silence, is unreasonable. We think defendant, under the circumstances, was justified in concluding that plaintiff had abandoned the contract.

Por' the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant and against plaintiff dismissing plaintiff’s suit at his cost.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9646.
    Orleans Appeal.
    KATHLEEN HEIDEMAN v. N. O. PUBLIC SERVICE INC., Appellant.
    (December 15, 1924, Opinion and Decree.)
    (January 19, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Street and Interurban Railroads, Par. 27, 28.
    In the interest of the public circulation, street cars have the right of way over ordinary vehicles.,
    2. Louisiana Digest, Automobiles, Par, 4,5.
    The attempt to drive a vehicle across a street railway track in front of an approaching car, which could and should have been seen with ordinary care and prudence, is such negligence as must prevent recovery of damages for injuries resulting from a collision with the car.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon. Henry Renshaw, Judge. *
    This is a damage ' suit on the allegation that one of defendant’s cars ran into plaintiff’s automobile and damaged it.' There was judgment for plaintiff for $142 and rejecting her claim for loss of use of her auto. Defendant appealed.
    Judgment reversed.
    John Dymond, Jr., A. G. Levy, R. J. Weinmann, attorneys for plaintiff, and appellee.
    Benj. W. Kernan, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a damage suit on the allegation that one of defendant’scars ran into plaintiff’s automobile and damaged it.

Plaintiff alleged that on May 14, 1923, at 5:15 p. m., she was driving her auto down Burgundy Street in the direction of Iberville Street, when a car of defendant company ran into her auto from the rear and damaged it to the extent of $137; that she .paid $5 to tow her auto to - her garage; that she was deprived of the use of her car for 54 days during the repairs to it; that she is a stenographer and she used her auto to go to her work daily and the deprivation caused her a daily damage of $2, or $108; that she was informed by the motorman in charge of the car that the brakes would not work. She claims $250.

The defendant denied all the allegations of plaintiff’s petition and averred that “an automobile said to belong to and driven by Miss Kathleen Heiderman was suddenly and without warning driven from the side of Burgundy Street, between Canal and Iberville Streets, towards and on the track on which respondent’s Paris Avenue cars are operated at a time when one of said cars was being prudently operated on a trip down Burgundy Street and was then so close to the automobile that the motorman in charge of the car could not stop it or check its speed in time to avoid a collision with it, although he made -every effort so. to do”.

There was judgment for plaintiff for $142 and rejecting her claim for loss of use of her auto.

The defendant has appealed.

The facts are that the plaintiff was parked along Burgundy Street between Canal and Iberville Streets. An auto’s length ahead of her was another auto parked: the plaintiff 'drove out of her parking place to get into the track; while she was partly across the track, while her front wheels were upon the track and her hind wheels were near to or upon the river side track and her auto was in a diagonal position, and before she had straightened out upon the track, the defendant’s car struck her auto upon the left rear wheel shoving her . against the auto ahead of her, smashing her right front wheel and fender and her rear left wheel.

She testifies:

“When I got in the car to drive out, the engine was started and I held my hand out, and the Paris Avenue car was just turning Canal Street about three-quarters of a block away, easily 75 feet.”

The plaintiff is evidently mistaken. Three-quarters of a city block are not 75 feet but about 225 feet, and the evidence is that the accident occurred nearer to Iberville than to Canal Street. If the “car was just turning Canal Street” when she moved from her parking place, she would have had ample time to get upon the track and straighten out before the car struck her. Burgundy Street is a narrow street, and the distance from the car track to a car parked along the curb of the sidewalk is only a few feet.

The fact that plaintiff’s auto was struck upon the left rear side in a diagonal ’ position proves she moved from her parking place just a little before the car approached her, and that they both reached the point of collision at about the same time. It was not enough for the plaintiff to have extended her hand; she should have looked. If she had looked, she could not have avoided seeing the car so near to her. '

In the interest of public circulation, street cars have the right of way over all other vehicles. Walker vs. Rodriguez, 139 La. 251, 71 So. 499; 185 Court of Appeal Nos. 7405, 7988, 8127, 8595; Tessier Digest, p. 158.

'Sec. 9, page 9, of the Traffic Ordinance:

“On approaching the tracks of an electric street railway, with intention of going upon them, a person driving a vehicle must look and listen for an approaching car; his failure to see or hear a car when he might have done so if he had exercised his senses in an effective manner, is contributory negligence on his part, which precludes him from recovering damages, unless he proves that the motorman might have avoided the damage by the exercise of ordinary care.” No. 7405, Ct. App., Dr. Gelbke vs. R. R., Orl. App.; Hurdy, p. 397, § 336.
“To attempt to drive a vehicle across a street railway track in front of an approaching car, which could and should have been seen with ordinary care and prudence, is such negligence as must prevent the recovery of damages for injuries resulting from a collision with the car.” No. 8595, Ct. App., Maxwell vs. R. R.

We see no negligence upon the part of the motorman. The plaintiff drove her auto suddenly across his path, and although he applied the brakes he could not stop his car in time to avoid the collision.

The plaintiff relies upon an alleged statement of the motorman to her after the accident that his brakes were in bad order before the accident. She testifies to it and also does a disinterested witness. The motorman denies that he made the statement. A prior motorman who used the car on a run just before, testifies, and a passenger upon the car on the fatal trip, both swear that the brakes were in good order. The testimony of the plaintiff and of her witness may have resulted from a misunderstanding. The facts are that in the collision the brakes upon defendant’s car were crushed and mashed against the wheels of the car, so that the brake would not work, and that it was necessary to send a workman under the car to loosen the brakes. This condition may have given rise to the statement that the brakes were injured and out of order before the collision.

At any rate the explanation so weakens the testimony of the plaintiff as to deprive it of sufficient probative value to rest a judgment upon it, or to overcome the other testimony that thp brakes were in good order.

It is therefore ordered that the judgment appealed from be reversed and set aside; and it is now ordered that there be judgment in favor of defendant rejecting plaintiff’s demand at her cost in both courts.


author: BELL, J.

text:
    No. 9664.
    Orleans Appeal.
    GASPAR R. BOSETTA v. S. L. JACOBS.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Laws, Par. 72.
    A verbal contract by which “A”, a licensed real estate broker, agrees with “B”— not such a broker — that he will share part of his commission with “B”, if the latter secures for “A” a purchaser of property listed by “A”, is not a contract prohibited by Act 236 of 1920. Such a contract will be enforced, where “B’s” services are shown to have been successfully rendered.
    2. Louisiana Digest, Appeal, Par. 625.
    Where the broker admits the agreement, but contends that compensation less than that claimed was agreed upon, the conclusions of the trial judge as to the amount actually agreed up.on, will not be disturbed.
    Appeal from First City Court for the City of New Orleans, Section “A”, Hon. Leon L. Labatt, Judge.
    This is a suit to recover a commission for selling property.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. S. Hebert, attorney for plaintiff and appellee.
    Scott E. Beer, attorney for defendant and appellant.
   BELL, J.

Elaintiff sues defendant for $180.25, or five per cent, of the selling price of certain property sold by defendant, a licensed real estate broker.

The evidence substantially supports the allegations of the petition, to the effect that plaintiff informed defendant by telephone, in the month of February, 1924, that he had a “real live prospect”, who desired to purchase a rooming-house, and that plaintiff would negotiate the purchase thereof through defendant if the latter would pay him five per cent, of the amount of the purchase price for which the property might be sold; that. defendant consented to this proposition; that plaintiff introduced defendant to the prospect, who ultimately bought the property through defendant, a licensed real estate broker, for the price of $3,650.00.

The answer is, in effect, a general denial, containing, however, an admission that the defendant was introduced to the purchaser by plaintiff. Defendant also admits in his testimony that he wrote out a check in favor of plaintiff for eighty dollars, in payment of plaintiff’s share of the commission, but that plaintiff declined said check, saying he would hold defendant to his agreement.

Though no specific defense by way of • pleading was made as to the legality of the agreement sought to be enforced, it was urged by counsel' for defendant in the trial court and ,on appeal, that plaintiff could not recover because the amount sued for was a fee, claim or charge for brokerage by a person not a licensed real estate broker within the terms of Sections 1, 2 and 19 of Act 236 of 1920. Considering the relevant portions of the Act, we find them to provide, in part, as follows:

“Sec. 1.- — That it shall be unlawful for any person * * * whether operating under a firm name or otherwise, from and after January 1, 1920, to engage in the business or capacity, either directly or indirectly, of a real estate broker, real estate salesman, a business chance broker or curb broker, within this State, without first obtaining a license under the provisions of this Act.”
“Sec. 2. — That a real estate broker within the meaning of this Act is any person
* * * who, for compensation * * * sells or offers for sale * * * or negotiates the purchase or sale * * * of real estate * * * as a whole or partial vocation.
“The provisions of this Act shall not apply to any person * * * who, as owner or lessor, shall, either as an individual or through an employee or representative not otherwise engaged in the real estate business, perform any of the acts aforesaid with reference to property owned by them * * *. Nor shall this Act be construed to include in any way services rendered by an attorney at law in the service of his client * * *. A business chance broker or curb broker within the meaning of this Act is any person, firm * * * OTHER than as herein excepted, who, for a compensation or valuable consideration, sells or offers for sale * * * or negotiates the purchase or sale * * * of a business, business opportunity or the good will of an existing business for others, as a whole or partial vocation.”
“Sec. 19. — Be it further enaced, etc., that any person * * * who has not been licensed in accordance with the provisions of this Act, shall not be allowed to recover for any fee, claim or charge for brokerage in the courts of this State.”

It is contended by defendant that, though plaintiff- was a lawyer at the time of the institution of this suit, he was not such at the date of the alleged agreement or at the time of the sale; that, in fact, he was, at the time of the agreement and of the sale, a business chance broker, within the terms of the Act, and, therefore, under the provisions of Sec. 19, as above quoted, he cannot recover the commissions sued for.

After careful examination of the entire Act and particularly those portions of the Act above noted, we can find no merit in-the contentions here urged. It is plain that the Act has no application whatever to the transaction sued upon, nor to such conditions or facts as those from which this suit has arisen. Plaintiff did not act as a “business chance broker or curb broker”; he did not sell or offer for sale the property in .question — he simply procured and introduced the prospective purchaser to defendant, who negotiated and consummated the sale between the purchaser and the owner of the property. It cannot be said that plaintiff’s actions in this matter constituted “a whole or partial vocation”, within the meaning of such words, found in the Act. Plaintiff was a law student. He is not claiming brokerage or any part of brokerage, nor is he making any claim or commission as brokerage for the- sale of the property, from either the owner or the real estate broker. His suit is only against defendant and solely for compensation for services rendered defendant in securing for him, by an independent agreement, a purchaser of property which defendant had listed and was authorized to sell for account of the owner.

The entire transaction was of the simplest nature, wherein services were rendered for a lawful consideration. Even had plaintiff been a hired employee or clerk in defendant’s office, and had be been offered by defendant as compensation above his salary, a percentage of defendant’s gross receipts from brokerage fees upon the condition that he would secure a designated number of prospects or purchasers within a year, surely it could not be urged in a suit for percentage over salary that plaintiff was a business chance broker or one acting directly or indirectly as an unlicensed real estate broker.. In such a case, a suit for the amount agreed upon in excess of the salary, would cary just as valid a consideration and would be just as en-forcible as a suit for recovery of his salary as clerk.

We find nothing in the contract sued upon to be in contravention of Act 236 of 1920. There is nothing in the Act which prohibits one not a licensed broker or salesman from soliciting or procuring either vendors or purchasers of real estate as clients or customers for a licensed broker, in consideration of a stipulated compensation; nor is there anything in the entire Act which justifies the broker in refusing to pay such compensation, on the ground that a contract for same, under such conditions, is illegal. The statute is at best a law restrictive in its nature and one in derogation of common right. It should, therefore, be strictly construed.

The trial court has awarded judgment in the amount prayed for. Elaintiff swears that defendant agreed to pay him five per cent, of the selling price. Defendant’s tender of the check for eighty dollars conclusively shows that there was a definite agreement, the validity of which he plainly recognized, and the services for which he is estopped to deny. There is evidence in the record that some other person or firm claimed participation in defendant’s total commissions, which commissions, he says, amounted to $350.00. Of this amount defendant claims to have paid the other party $87.50, and admits that had he not done so he • would undoubtedly have paid or tendered to plaintiff a larger sum than eighty dollars. To quote defendant’s attitude towards this transaction, he says; “I would have given him (plaintiff) about $150.00.” It is not to be presumed that in his contract with plaintiff, there was no price or basis of compensation agreed upon, nor is it reasonable to suppose from his statement just quoted that he could have contracted for 2%% commissions, as he claims to have done. Ón the other- hand, plaintiff is positive and certain in his testimony, even under cross-examination, that the definite amount agreed upon was five per cent, of the selling price. The testimony of plaintiff’s stenographer is corroborative of this fact. While her evidence, in its nature, is wholly hearsay evidence, same was admitted without objection, and supports other and more convincing evidence given by both the purchaser and a friend of the purchaser, as well as by another broker, all witnesses summoned on behalf of the plaintiff. From the testimony of these witnesses it is plain that plaintiff never agreed upon any compensation less than five per cent. The subsequent conduct of the defendant, as well as his own admissions, which we have just noted, convince. us that the trial judge was correct in the amount allowed by him.

It is, therefore, ordered that' the judgment appealed from be and the same is hereby affirmed, at defendant’s costs in both courts.


author: WESTERFIELD, J.

text:
    No. 9688.
    Orleans Appeal.
    RELIANCE HOMESTEAD ASSN. v. P. J. McMAHON & SONS UNDERTAKING CO., INC., Appellant.
    (December 15, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Corporations, Par. 133.
    The president and general manager of a corporation engaged in the livery and undertaking business has no authority, ex officio, to act for the corporation in applying for a loan of $12,000.00 in a homestead association. The doctrine of apparent or implied powers of corporate officers cannot be so extended.
    (Civil Code, Art. 439 — Editor’s Note.)
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit to recover expenses incurred because of refusal to make a loan.
    Judgment for plaintiff. • Defendant appealed.

      Judgment reversed.
    Theo, Roehl, attorney for plaintiff and appellee.
    McCaleb & McCaleb, attorneys for defendant. and appellant.
   WESTERFIELD, J.

Plaintiff, a homestead company, brings this suit against defendant, a corporation engaged in the undertaking and livery business, for $103.50, the amount of attorney’s fees and other expenses incurred by plaintiff in connection with a loan which it is alleged was applied for by the defendant and subsequently declined. The defendant denies that the loan 'was applied for by anyone with authority to act in its behalf and in the alternative avers that the loan was refused by plaintiff upon the advice of its attorney who objected to the title of defendant to certain property which whs to be mortgaged to secure the loan.

There was judgment below in plaintiff’s favor and defendant has appealed.

The application for the loan was made upon the customary form prepared by the homestead and was signed by the president of the defendant corporation for the corporation. , There is no contention that there is any provision of the defendant’s charter or any action by the Board of Directors of a general or special character conferring authority upon the president to borrow money or to act for the corporation in this particular transaction. Plaintiff relies upon the implied power of the president of the defendant corporation, as president and general manager.

We are referred to Bank vs. Plow Company, 45 Ann. 1214, 14 South. 139, from which plaintiff’s counsel quotes the following:

“The authority of an officer to bind a corporation in the management of its ordinary business may be fairly implied.” and to the following:
“Parties dealing with the president of a corporation in the usual manner and wjthin the scope of the powers which the president has been accustomed to exercise without the assent of the directors and not ultra vires of the' corporation would be entitled to assume that he had been actually invested with those powers.” Berlin vs. Cusachs, 114 La. 744, 38 South. 539.

Other citations are made by counsel but we select these as typical of all the cases relied upon by counsel on this point, none of which in our opinion are pertinent.

There is no pretention here that the signing of an application for a loan of $12,000 with a homestead company was “within the powers which the president had been accustomed to exercise”. It was a most unusual and extraordinary transaction. While it is conceivable that an undertaker and liveryman might have occasion to borrow money to purchase a business location, it is certainly not usual or customary to do so as' an incident to the transaction of the business engaged in. Even though the president of defendant corporation was also its general manager, thus extending his implied powers, the transaction we are considering is beyond the ordinary business of defendant and cannot be held to be within his apparent or implied powers.

“Apparent authority and powers as general manager, in general. The management of the entire business of a corporation may be intrusted to its president either by express resolution of the directors or by their acquiescence in a course of dealing. In fact, it is a very common custom for the president of a business corporation to be its active manager, and the president is often expressly appointed ‘general manager’ of the company by a resolution of the board of directors. The president may be given general authority to supervise and manage the business of the corporation or a particular part of it. In such a case, his authority extends impliedly to any contract or other act which is incident to the ordinary business of the corporation, or to that part with which he is intrusted, without special authority to make the particular contract or do the particular act; but it does not extend to contracts or other acts which are not incident to the ordinary business.” Fletcher Cyc. Corp., Vol. 3, n. 3202.

In Taylor vs. Vassburg, 128 La. 376, 54 South. 907, the Supreme Court says:

“The general rule upon the subject of the authority of the president of a corporation is stated as follows:
According to the decided weight of authority, whether he (the president of a corporation) has authority to do a particular act, depends upon the power conferred upon him, either by the charter or by the stockholders or directors.
The mere fact that he is president, without more, does not imply that he has any greater power than any other director.” Marshall .on Corporations; p. 953 (quoted as authority in Jackson Brewing Co. vs. Canton, 118 La. 823, 43 South. 454); Cook on Stock and Stockholders and Corporation Law (Ed. 1889), Sec. 716; Taylor on Private Corporation (2nd Ed.), page 197.

We conclude, therefore, that the action of the president of the defendant corporation in signing the application for the loan to be made by the plaintiff was unauthorized by any principle of implied powers of' corporate officers and that consequently the defendant corporation was not bound thereby and can not be held for the consequences of the breach of the obligation to accept the loan when and if tendered.

The judgment appealed from must be and it is hereby reversed and it is now ordered that there be judgment in favor of defendant and against plaintiff dismissing plaintiff’s suit at its cost.


text:
    No. 9762.
    Orleans Appeal.
    JOSEPH P. HENICAN, Appellant, v. P. L. WOODMAN AND JOHN H. BALDWIN.
    (December 15, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)
    (March 3, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by tjie Court.)

    1. Louisiana Digest, Insurance, Par. 162.
    The owner of an automobile which has been damaged may sue the wrongdoer in his own name, although he was insured and was paid his damage by the insurers.
    2. Louisiana Digest, Automobiles, Par. 4 a.
    It is the duty of the chauffeur driving behind an auto to so regulate his distance and his speed as not to collide with a car in front of him in case the latter comes to a stop.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon. Henry Renshaw, Judge.
    This is a damage suit following an automobile collision. There was judgment in favor of plaintiff, dismissing the plea of estoppel, but in favor of both defendants on the merits dismissing plaintiffs’ demand as in case of non-suit. The plaintiff appealed.
    ” Judgment reversed in part and affirmed in part.
    Gordon BosWell, Milo Williams, attorneys for plaintiff and appellant.
    J. C. Hollingsworth, R. W. Leche, W. A. Corteous, E. N. & P. N. Browne, S. J. Tennant, Jr., attorneys for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit following an automobile collision.

Plaintiff avers that on October 15, 1923, at 8:30 a. m„ his automobile was at a standstill on the driveway of St. Chárles Avenue; that the defendants were each driving an auto down the same street, Baldwin following Woodman, when one collided with the other, just in the rear of plaintiff’s auto, resulting in forcing Woodman’s auto against plaintiff’s auto, damaging it to the extent of $124.33; that both defendants were driving in a fast and reckless manner and did not .have their auto under proper control and were not maintaining a proper lookout and failed to give the prescribed signal. He prayed for judgment against both defendants.

The defendant Woodman answered that he was driving down St. Charles Avenue and that his auto was run into by an auto operated by John H. Baldwin, but denied all the other allegations of the petition.

The other defendant, Baldwin, admitted that he was driving down St. Charles Avenue and that while so driving his car came in contact with another auto in front of him driven by P. L. Woodman; he admitted the charge of negligence on the part of Woodman, but denied all the other allegations of the petition.

Woodman and Baldwin both pleaded as an estoppel that the plaintiff was without interest to prosecute this suit for the reason that he had been paid by an insurance company all the damages suffered by him in the collision and had subrogated it to all his right of action.

There was judgment in'favor of plaintiff, dismissing the plea of estoppel, but in favor of both defendants on the merits dismissing plaintiffs’ demand as in case of non-suit.

The plaintiff has appealed.

In the case of Hanton vs. N. O. Light and Power Co.; 124 La. 562, 50 South. 544 the court decided:

“Where the owner of property Which has been destroyed by fire through another’s negligence, has been paid part of his losses by an insurer who thereby becomes subrogated to the remedies of the assured, an action to recover from the wrong doer the value of the property destroyed is properly brought in the name of the assured, and the insurer is not a necessary party to such action.”

The facts are that there were, among others, four autos driving down St. Charles Avenue. In front, a Ford coupe driven by Bernard; behind him, a Peerless sedan, driven by plaintiff Henican; behind him, á Moon seven-passenger touring car driven by Woodman; and behind him another Ford coupe driven by Baldwin. When Bernard reached Melpomene Street the car in front of him came to. a very sudden stop and he had to stop, too. Henican’s car also came to a sudden stop, barely striking Bernard’s car in front. But Woodman’s car in the rear, did not come to a stop in time, but bumped into Henican’s car, causing the damage complained of. Henican’s chauffeur says that prior to stopping he extended his hand as a signal, and both swear that they had stopped when Woodman struck them. Woodman does not deny any of that testimony; he admits that he saw Henican slowing up in front of him, but that he struck him because he could not stop.

It is evident that he Should have kept at such a distance behind Henican, and that he should have been driving at such a slow speed, as would have permitted him to stop before colliding with the car in front when the latter stopped. If he failed to do so, it was negligence on his part, for the consequences of which he is liable, unless he proves that it was some extraneous power that moved him. . He does not say that Baldwin's car struck him; and were it not for the latter’s admission that he struck Woodman’s car, there would be no evidence on that subject. But Baldwin says that his car did not strike Woodman’s car with any force, and that the only damage to his car was two front headlights, the glass, and the lamps, amounting to six dollars. Besides, he was driving ,a Ford coupe while Woodman’s car was a Moon seven-passenger touring car; it is not likely that a Ford coupe coüld have had much influence on such a car. We therefore think, with the trial Judge, that the plaintiff has failed to “establish his demand” as far as Baldwin is concerned.

The plaintiff has annexed to his petition a detailed statement of the repairs made to his auto and of the mechanics’ time duly receipted by the United Motors Company, and he testifies that he paid it. There is nothing to contradict the correctness of the bill.

It is therefore ordered that the judgment herein in so far as Perley L. Woodman is concerned, be reversed and annulled; and it is now ordered that there be judgment condemning the defendant Perley L. Woodman; to pay to the plaintiff, Joseph P. Henican, the sum of One Hundred and Twenty-four 33-100 Dollars with five per cent, per annum interest from December 17, 1923, till paid, and all costs of suit.

It is further ordered that said judgment be:affirmed as far as John H. Baldwin is concerned.

Judgment reversed in part and affirmed in part.,


text:
    No. 9789.
    Orleans Appeal.
    JOHN CORLISS, Appellant, v. MR. AND MRS. JOSEPH SILVA.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Landlord’s Tenant, Par. 122, 102, 70.
    A landlord has no right to obtain possession of leased premises by ejecting the tenants without resorting to the means provided by law.
    2. Louisiana Digest, Damages, Par. 53.
    A plaintiff cannot recover his attorney’s fees.
    Exemplary damages cannot be allowed.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon. Henry Renshaw, Judge.
    This is a damage suit for illegal ejectment from rented premises and for loss of wearing apparel. There was judgment for defendants and plaintiff has appealed.
    Judgment reversed.
    Arthur Landry, attorney for plaintiff and appellant.
    Alfred J. Bonomo, attorney, for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit for illegal ejectment from rented premises and for loss of wearing apparel.

The plaintiff ' alleges that he leased two rooms and a kitchen at No. 1112 Frenchmen Street from the defendants for $8 a month and resided there with his wife and family for more than a year prior to March 4, 1922; that on February 11, 1922, his wife was taken sick and went to the Charity Hospital; that on March 4, 1922, he went to his rooms and found same locked and could not get access to them; that he was informed by the defendant, Joseph Silva, that he had locked said rooms and that he could not get into them and ordered him out of the yard; that he was the owner of two beds, a sewing machine, one armoir, one washstand, four chairs, and a rocking chair, and clothes for himself, his wife and daughter, all contained in said rooms; that defendants trespassed in said rooms and bundled up his bedding and .clothes and those of his wife and daughter; that he called at the residence of the defendants and made demand for the return of his property which was refused; that he then filed suit with sequestration against Joseph Silva for the recovery of said property and obtained judgment in his favor; that the illegal acts of the defendants have caused him damage in the following amounts:

Attorney’s fees for recovering his property ------------------------------------------------$ 50.00
For loss of the clothes of his wife , and daughter ________________________________________ 46.00
For his own clothes________________________________ 47.00
For physical and mental suffering_____^500.00
For exemplary damages________________________ 200.00
Total____________________________________________________$843.00
that in order to give the City Court juris-
diction and to obtain a speedy trial he reduces his claims to $300.

The defendant admitted that the plaintiff had leased the premises 1112 Frenchmen as stated by him, but denied that he had lived there more than one year, and denied all the other allegations of the petition; they specially denied that they had locked plaintiff’s doors or that they had entered plaintiff’s premises, except to render some charitable service to the plaintiff wife and to bring food to her.

There was judgment for defendants and plaintiff has appealed..

The testimony leaves no doubt that the plaintiff was the tenant of the defendants and that they closed the doors upon him and prevented him from having access to the premises leased by him or to his furniture and clothing contained on said premises, and that he had to resort to legal proceedings to sequester and recover the property.

The defendant husband testifies that he was not at home and that no demand was ever made to him. His wife testifies that she. never refused to allow the plaintiff to enter his premises. But the plaintiff swear.s that she did. He is corroborated in that statement by the testimony of a police officer who was called in by the plaintiff. They called together at -the premises 1112 Frenchmen Street, and the officer asked the defendant wife “why they wouldn’t let him in his house or give him his furniture and clothes” and she said: “I have to see my husband.” Plaintiff then filed suit with sequestration to obtain possession of his property. The constable testifies that he called at the premises on March 7th, and that Mrs. Silva refused to unlock the door to let him in; he then returned to Court, made an affidavit to that effect, and obtained from the Court an order authorizing him “to force the doors, locks or fastenings of' premises No. 1112 Frenchmen Street”, and that he executed the writ on March 8th. He also swears to the facts as a witness. It is also of record that the defendants filed no answer to the suit, and that a judgment by default was rendered against them on March 20th. The plaintiff was by defendants’ fault put to the expense of prosecuting the suit to final judgment instead of immediately confessing judgment, and kept plaintiff out of his property until his judgment became final, a period of over fifteen days; also ejected him from the leased premises without process of law.

Defendants say that in February they had notified the plaintiff to vacate for failure to pay rent. That did not justify the subsequent actions. Ever since the case of Thayer vs. Littlejohn, 1 Rob. 140, in the year 1842, the jurisprudence has been constant that a landlord has no right to move the property of his tenant and to obtain possession of leased premises by ejecting the tenants without resorting to the means provided by law. This decision has been affirmed repeatedly. Jones vs. Pereira, 13 La. Ann. 102; T. & C. Fitzgerald vs. Pierre Boulat, 13 La. Ann. 116; Byrne vs. Riddell, 3 La. Ann. 670; Edwards vs. Ricks, 30 La. Ann. 926; Wm. Van Wren vs. Hugh Flynn, 34 La. Ann. 1158; Boniel vs. Block, 44 La. Ann. 514, 10 So. 869; Parker vs. McGlin, 52 La. Ann. 1514, 27 So. 946; 10 Ct. App. 272-273; 13 Ct. App. 235.

. We will allow One Hundred and Fifty Dollars for physical and mental sufferings of the plaintiff.

Attorney’s fees in the sequestration suit cannot be allowed. Tessier Digest, p. 25 Ct. App. 9494.

Plaintiff is the only witness to prove loss of clothes. His testimony is not sufficient-to overcome the denial of defendants.

Exemplary damages have no longer any place in our jurisprudence. Tessier Digest, p. 61.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendants, Mr. and Mrs. Joseph Silva, be condemned in solido to pay to the plaintiffs the sum of One Hundred and Fifty Dollars with five per cent per annum interest from June 24, 1922, till paid,' and all costs of suit.


text:
    No. 9793.
    Orleans Appeal.
    SURETY CREDIT COMPANY, INC., v. LOUIS J. BAUER, ET AL.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Judgment, Par. 98, 103.
    “To entitle a party to maintain action to annul judgment, a case must be exhibited of matter which would make it against good conscience to execute the judgment, and of which the injured party could not, with due diligence, have availed himself in the former suit, or of which he was deprived by fraud or accident. If there has been laches or negligence on his part, he is not entitled to relief.” Swain vs. Sampson and Keen, 6 La. Ann. 799.
    2. Louisiana Digest, Judgment, Par. 39.
    “Where, in judicial proceedings there is no doubt as to the identity of the defendant intended to be cited, a slight error in his name is immaterial, and a suit to annul a judgment contained on such citation will be dismissed, especially ’ where notice of judgment is shown to have been served upon him in person.” C. C. Snider Cig. & Tob. Co. vs. Anselmo, 9376 Crt. App.
    (Code of Practice, Art. 607 — Editor’s Note.)
    Appeal from the First City Court for the City of New Orleans, See. “B”, Hon. Val J. Stentz, Judge.
    This is a suit to cancel and annul and to enjoin execution of a judgment. Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Marx & Levy, W. O. Hart, for Civil Sher-' iff, attorneys for plaintiff and appellee.
    Arthur Landry, attorney for defendant and appellant.
   BELL, J.

This is an action by one who alleges himself to be Francis T. Brown, to cancel and annul and to enjoin the execution of a certain judgment rendered by the First City Court of New Orleans, on the 19th day of May, 1924, in the case of Surety Credit Co., Inc. vs. Louis J. Bauer, et al., No. 118,990 of the docket of said court. The judgment now sought to be annulled, and the execution of which Francis T. Brown has attempted to enjoin, was a judgment rendered on a promissory note, the joint and solidary makers of which were Louis J. Bauer and one styled “Frank Brown”. Against both of these defendants a judgment in solido for $200.00 was rendered by default, and no appeal was taken from the judgment. Francis T. Brown (hereinafter referred to as. plaintiff in injunction) now cláims that his property has been unlawfully seized in execution of the above judgment against Bauer and Frank Brown, and he seeks to enjoin the execution and to annul the judgment upon the allegation that he is not Frank Brown, one of the judgment debtors, and also that the signature of Frank Brown on the note upon which the judgment was obtained is a “forgery and a fraud”. For this reason only it is alleged that the judgment should be annulled and its execution enjoined. There are no allegations whatever of any vices in form relative to the proceedings under which the judgment was obtained, nor are there any averments that the definitive judgment sought to be annulled was obtained through fraud or ill practices of the judgment creditor, in whose favor it was rendered, and who is now made defendant in these proceedings. (C. P., Art. 607.)

Answering the petition of plaintiff in injunction, defendant admits that it is the plaintiff in the original suit, and that execution upon the judgment in its favor has issued. Under these admissions, defendant alleges that the property seized is in fact the property of Frank Brown, who is, in truth, the same person now claiming to be Francis T. Brown; that plaintiff in injunction signed as “Frank Brown” the note upon which the judgment was obtained, and that, therefore, the signature on the note is not a forgery. It is further averred and charged that plaintiff in injunction was guilty of gross laches, and, therefore, cannot he granted the relief prayed for, because he was personally cited in 'the suit upon the note, to which he was a party; that he permitted judgment to be taken against him by default; that he wa,s duly served with notice of judgment and failed to appeal therefrom, and that long before the institution of this suit, he was frequently notified by defendant, as well as by defendant’s attorneys, of the claim held against him, and that he repeatedly promised that same would be paid.

From a judgment dissolving the injunction and dismissing the petition for annulment, plaintiff in injuncton has appealed.

The learned judge of the tral court found as a fact (the record clearly disclosing it that plaintiff in injunction, several months before the filing of the original suit, protested to the defendant against his liability on the note, claiming that the signature of Frank Brown thereon was not his signature and was, therefore, a forgery, and that he had never signed any note whatever for or with Louis J. Bauer, his brother-in-law and close neighbor.

Our examination of the record, particularly the admissions of plaintiff in injunction; leads us to the same conclusions as were reached by the trial judge, on this important fact. There can be no doubt that if it were a fact that the signature on the note was a forgery, plaintiff in injunction was well informed to this effect, long prior to the original suit. He has not proven that there- was anything which hindered or prevented him from pleading such a defense. Furthermore, his inexplicable, quiescence from the moment of personal service of citation in the original suit, until five days after the seizure of his property, furnishes abundant justification for the charges that he was guilty of gross laches.

Upon innumerable authority it has been repeatedly held that no action of nullity will lie to set aside a judgment against one shown to be guilty of gross laches, and where the grounds of a legal defense which would otherwise be available were known to him long before trial. This doctrine is tersely stated in Hennen’s Digest, Vol. 1, page 744, Sec. 17, as follows:

“Action of nullity is not limited to the cases specified by Art. 607 C. P.; hut plaintiff must show that' it would be against good conscience to execute the judgment, and that he could not have availed himself of the matter in former suit, or was prevented by fraud or accident. If by reasonable diligence he could have -known such matter, or if he had been guilty of laches, he cannot be relieved.”

(See also 4 La. Dig., page 168, par. 103.)

It has been held in the case of Swain vs. Sampson, 6 La. Ann. 799:

“Where a default on a note payable to James S., the latter, though wholly unconnected with the note, the indorsement being that of his brothel’, John S., is precluded by his laches in failing to appear and prevent the error of evidence, from an action of nullity.”

(See also Perry vs. Rue, 31 Ann. 287;

Globe Realty Co., Ltd., vs. Cotonio, 3 Court of Appeal, 270; Welfare Loan Co. vs. E. L. Landry, et al., 9063 Orl. App.)

It is urged, though not pleaded, that plaintiff in injunction could not have been legally made a party to the original suit and, therefore, could not be guilty of laches because the citation, though personally served upon him, was directed against “Frank”, not Francis T., Brown. We are convinced, as was the trial judge, that Frank and Francis T. Brown are one and the same person, but even if this were not a fact, such a defense cannot be here considered, because never pleaded. Even if this point were at issue, the jurisprudence is against such contention. In the case of C. C. Snider Cigar & Tobacco Co. vs. Mardo Anselmo, 9376 Orl. App., this question Was squarely presented. We held in that case, citing numerous authorities, that:

“Where in judicial proceedings there is no doubt as to the identity of the defendant intended to be cited, a slight error in the name is immaterial, and a suit by him to annul a judgment obtained on such citation will be dismissed, especially when notice of judgment shall be shown to have been served upon him in person.” (Bagneris vs. Oddo, 7471 Orl. App.; Tarver vs. Quinn et al., 149 La. 368.)

These proceedings might have been well and properly disposed of upon the exception of no cause of 'action filed herein. The sole ground for relief is predicated upon the insufficient allegation that the signature on the note sued upon and alleged to be that of the plaintiff in injunction is forgery and a fraud. It was necessary, in order to support a cause of action, to have alleged that the judgment sought to be annulled was one obtained through fraud practiced by the party in whose favor the judgment was rendered, that is, by the Surety Credit Co., Inc. No such averment was made, nor does the petition in any manner set forth who, if anyone, was guilty of the alleged fraud. Art. 607 of the Code of Practice provides, in part, as follows:

“A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; * * * ”

We find no error in the judgment of the trial court.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from herein be affirmed at the costs of plaintiff in injunction in both courts.


author: CLAIBORNE, J. WESTERFIELD, J.

text:
    No. 9803.
    Orleans Appeal.
    REMEDIAL LOAN SOCIETY, Appellant, v. JAMES J. LE GARDEUR, ET AL.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Gourt.)

    I. Louisiana Digest — Appeal—Par. 715.
    A case will be remanded whenever in the opinion of the court the ends of justice will be served thereby.
    Appeal from First City Court, Hon. Val J. Stentz, Judge.
    Remanded for further evidence.
    WESTERFIELD, J., dissents.
    Legier, McEnerny & Waguespack, attorneys for plaintiff and appellant.
    Jas. J. LeGadeur, S. Fye Bass and R. J. Larue, attorneys for defendant and appellee.
   CLAIBORNE, J.

We are of opinion that this case should be remanded to afford an opportunity to plaintiff to prove that one or more of the defendants obligated them-serves as sureties of the note sued on in this case, therefore

It is ordered that this cause be remanded to the First City Court for further proceedings according to law and not inconsistent with this opinion.

WESTERFIELD, J.

I am of opinion that this case should not be remanded and consequently I respectfully dissent.


text:
    No. 9833.
    Orleans Appeal.
    THE ITEM COMPANY, LTD., v. HEREFORD, INC.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 625, 626.
    Conclusions of the trial judge upon issues which involve only the facts of a case and veracity of one witness as against another, will not be disturbed.
    Appeal from the First City Court for the City of New Orleans, Sec. “A”; Hon. Leon L. Labatt, Judge.
    This is a suit to recover the value of newspaper advertisements.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Jos. G. Schillin, attorney for plaintiff and appellee.
    Henry Mooney, attorney for defendant and appellant.
   BELL, J.

This case involves only issues of fact concerning verbal agreements made between the representatives of the respective párties to this suit.

Plaintiff sues defendant for the value of ' certain advertisements published by plaintiff in its daily newspaper. The claim is predicated upon a written contract signed by the parties on December 1, 1923, and which is admitted by the pleadings. Under this contract the plaintiff was 'to furnish during a period of one year, advertising space amounting to fifty-two hundred agate lines, at the price of 10 %0 per line, in daily and Sunday editions of the New Orleans Item. Defendant bound itself under the contract to pay for the advertisements on a monthly basis as the space therefor was used. There is nothing in the written contract which stipulates the amount of space to be used in any one advertisement, or the time, by days or months, when the publications shall be made or demanded. The plaintiff reserves the right to reject any copy deemed objectionable. From this reservation, it might be presumed, in the absence of proof as to custom, or to verbal agreements de hors the contract, that the advertiser, rather than the publisher, was to prepare and furnish all copy and determine all dates for publication.

The petition sets up the contract, and from documents annexed to the petition, it is made to appear that plaintiff inserted two publications, the first on December 2, 1923, for which, at the agreed rate, it claims the sum of $41.00, and the second of December 16, 1923, for $114.80, or a total claim of $155.80, the amount sued upon.

Defendant answers by admitting the written contract, but denies that the publication of the advertisements referred to in plaintiff’s petition was made pursuant to the contract. Admitting amicable demand, it denies that the amount claimed or any part thereof is due.

It has been admitted, however, by counsel for defendant, that the advertisement for December 2nd was made pursuant to the written contract, and that the charge therefor, to-wit, $41.00, is due.

There was judgment for plaintiff for the full amount claimed, from which judgment defendant has appealed.

Plaintiff’s only witness is its advertising agent, Mr. Caldwell, whose testimony is most positive and clear as to the verbal agreement made with defendant’s representative and as to just what was to be published and when. Cross-examination of this witness does not vary in any material manner, his direct evidence as to this agreement. He testifies that the first interview was on November 26, 1923, with defendant’s agent, Mr. Lambert, and with the president of the defendant company, Mr. Hereford; that nothing definite was determined at this conference, but that,two days later, on November 28th, he again conferred with these same parties and suggested a tentative plan for holiday advertisements to be run on December 2nd, 9th and 16th; that the written contract forming the basis of this agreement was then signed; that on December 3rd, while discussing with defendant’s representatives the changes in form of copy, to which objection had been made because of defendant’s desire to keep the expense within $250.00, that Mr. Lambert finally suggested a smaller copy, similar to the one to be run on the 9th, in the New Orleans States, and that witness, Caldwell, agreed to this, saying that he could procure such form from the States’ office, and that he would publish it in the Item on December 16th; that no publication whatever was made in the Item on the 9th. This witness, when asked on the stand, on cross-examination, why no advertisement was inserted on the 9th, swears that Mr. Lambert decided he didn’t want to run it on that date, and that he, Caldwell, asked Lambert if he desired the ad to be run on December 9th, and that Lambert said not to do so; that following Lambert’s instructions, he used the same copy of the 9th for publication in the Item on the 16th, without submitting such copy for approval.

The only testimony offered by defendant is that of Mr. Lambert, who simply denies that he authorized Mr. Caldwell to publish in the Item the identical advertisement that had been prepared by the States. This witness also testifies that he never approved nor received for approval any copy for .publication in the Item on the 16th.

There is nothing in the record to show that there was ever any publication of any sort in either the Item or the States on the 9th. Though Mr. Lambert admits in his examination that he was in court during the entire trial of the case, he was not asked to rebut, nor did he volunteer a denial of Mr. Caldwell’s positive testimony to the effect that he, Lambert, had instructed Caldwell not to run any advertisement in the Item on the 9th. This witness does not deny that from the very beginning of the negotiations with plaintiff concerning the contract sued upon it was always agreed and understood that there was to be some sort of advertisement in the Item on December 16th. Defendant’s sole attempt at justifying its refusal to pay the amount charged for the advertisement of December 16th, is found in a letter introduced in evidence by the plaintiff and reading as follows:

“February 2, 1924.
The New Orleans Item,
New Orleans, La.
Gentlemen:
We again return your bill dated December 31st for $155.80 and again state that insertion of December 16th was not ordered and that we do not propose to pay for same. It was ■ distinctly understood between your representative and ourselves that an ad was to be given to the Item on the 9th and the 16th, that your office was to make up copy for us for both dates. He fell down on the job on the 9th by not showing up and thought perhaps it would be easier for him and would not make any difference to us by picking up the copy that the States went to the trouble of making up 'for us. Please, therefore, mail us corrected invoice for the correct amount which we will be very glad to pass for payment. As far as witnesses to the order given by Mr. Lambert, this is the first time that a newspaper has sent anyone around to witness any transaction with us and we assure you that it will be the last.
Yours very truly,
HEREFORD, INC.,
(Signed) R. Hereford, Pres.
RSH/MML,”

The gravamen of defendant’s complaint, as we are able to gather it from the foregoing letter, is that some copy intended by it to be used in the States was also used without its authority in the Item’s ad of the 16th. There is proof in the record- that identical copy was used in both of these newspapers on that date, but defendant has not claimed, by way of pleading, nor has it proven by any evidence, that the Item copy of the 16th was contrary to any agreement between the parties, nor that the publication, either in size, composition or results, fell short of the purposes contemplated or agreed upon.

We are impressed by Mr. Lambert’s failure to deny that he discussed with Mr. Caldwell a form of copy made up largely from the States copy, some parts of which he is shown to have approved, and. some to have rejected. This uncontradicted evidence leads us to believe that there must have been some positive negotiations between the parties concerning the use, in some manner, of copy to be run in the States.

There is nothing in the record to show that defendant’s contract gave it the right to repudiate the whole contract because any one of the periodical publications might have been omitted or because the copy was not published as agreed upon. We have already noted that there is positive uncontradicted evidence to the effect that the publication originally contemplated for the 9th of December was withdrawn under specific instructions of defendant’s agent, Mr. Lambert. Defendant not' having rebutted this evidence, nor claimed any damages for breach of the contract in this respec^ the evidence as given must be taken as true.

We can find no justification in law or fact for defendant’s refusal to pay the claim as presented. The judgment appealed from is correct and should be affirmed.

It' is, therefore, ordered that the judgment appealed from be and the same is hereby affirmed, at defendant’s costs in both courts.


text:
    No. 9847.
    Orleans Appeal.
    BLACKNER ROTARY PUMP CO., Appellant, v. RANTZ ENGINEERING AND MACHINE WORKS, INC.
    (December 15, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 227.
    The manufacturer of a defective rotary pump is presumed to be aware of its defects.
    2. Louisiana Digest, Damages, Par. 74.
    A claim for damages of $140.00 alleged to have been expended in an effort to perfect a defective rotary pump costing $120.00 will be rejected as unreasonable and only such damages allowed as were necessarily incident to the discovery of the defect.
    (Civil Code, Art. 1764, Par. 2 — Editor’s Note.)
    Appeal from First City Court, Hon. Yal J. Stentz, Judge.
    This is a suit for the price of merchandise sold. Defendant reconvened. There was judgment for defendant and plaintiff appéalea.
    Judgment amended and affirmed.
    R. B. Montgomery, Wm. H. McClendon, attorneys for plaintiff and appellant.
    H. W. Robinson, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues for $120.45, the price of a rotary pump . sold defendant. Defendant answers admitting the purchase but avers that the pump was defective and useless for the purpose for which it was bought and claims $143.00 in reconvention as damages. From a judgment in favor of defendant on the main demand and for the full amount claimed in reconvention the plaintiff has appealed.

The evidence satisfies us that the pump was defective. It is shown that it was tested at plaintiff’s factory and plaintiff’s employees testify that it was in perfect order when, shipped to defendant but, nevertheless, it would not work when installed according to evidence which is unimpeached. Plaintiff, a partnership of Petosky, Michigan, where the pump wa's manufactured and shipped by them, assert that as appears by their catalogue, a copy of which Was sent to defendants, they do not guarantee their pumps unless installed under the direction of their engineers, and claim that the fault was not with the pump but with the manner of installation in the building in New Orleans due to improper connections or improper piping. It is not shown that any instructions were given defendant and it would be unreasonable to expect an engineer to be sent from Petosky, Michigan, to install a pump costing $120.00 in a building in New Orleans; moreover, it appears that a sketch of the installation was sent plaintiff and it does not appear that any complaint or criticism was made by them of the set-up of the pump.

Plaintiffs offered to send another pump to replace the defective one but subsequently declined to do so unless and until payment was made for the defective pump, which was an unreasonable requirement.

We think plaintiff’s claim for the purchase price was properly rejected.

In regard to the claim in reconvention, it is made up of two items, one of $35.00,. the cost of installing and removing the defective pump, and one of $108.00, the cost of a mechanic’s time at $1.00 per hour alleged to have been spent in an endeavor to make the pump work. The second item cannot be allowed. It should have been sufficiently manifest that the pump was defective when first installed and the expenditure of $140.00 in an effort to make a $120.00 pump perform its expected capacity is wholly unjustified. We quote the following from Mechem on Sales, Vol. 2, p. 1457:

“1826. Expenses incurred in preparing for what the seller is to do but fails to perform, or in doing that which the seller ought to have done, or in undoing that which he did improperly, fall clearly' within the doctrines of the preceding sections, and may be included within the damages to be recovered.
“For like reasons money expended in a reasonable endeavor to avoid or diminish the injury resulting from the breach of warranty, as for example, to cure an animal sold as sound, but found to be deseased, may be recovered. Expenses, however, in an unreasonable, hopeless or useless endeavor, or losses caused by continuous use after the defects were patent and evidently incurable, could not be recovered.”

For the reasons assigned the judgment appealed from is amended by reducing the amount allowed the defendant in reconvention to the sum of $35.00, the cost of this appeal to be borne by defendant, and in other respects it is affirmed.


text:
    No. 9855.
    Orleans Appeal.
    ALBERT BIANCHI, Appellant, v. ANTHONY MUSSACHI.
    (December 15, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)
    (March 3, 1925, Decree Supreme Court. Writ of Certiorari and Review Denied.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Municipalities, Par. 225; Automobiles, Par. 4 d.
    It is the duty of courts to rigidly enforce the traffic ordinances in order to secure public safety.
    Those who violate them must pay for the damage resulting from a collision.
    2. Louisiana Digest, Automobiles, Par. 4 a.
    Vehicles approaching from the right have the right of way.
    3. Louisiana Digest, Damages, Par. 1.
    It is not necessary that a plaintiff should have had the repairs made, or, being made, should have paid for them; the damage done to his auto constitutes his cause of action.

      4. Louisiana Digest, Damages, Par. 1.
    Nor does it matter that the auto was old and had cost but little less than the repairs.
    (C. C. Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon. Leon Labatt, Judge.
    Plaintiff sues the defendant for damaging his automobile in a collision. There was judgment for defendant, and plaintiff has appealed.
    Judgment reversed.
    Jos. Rosenberg, attorney for plaintiff and appellant.
    John C. Hollingsworth, Samuel J. Tennant, Jr., attorneys for defendant and appellee.
   CLAIBORNE, J.

Plaintiff sues the defendant for damaging his automobile in a collision.

He alleges that on July 9, 1924, he was driving an auto up Chartres Street; that upon arriving at Esplanade Street he 'came to a full stop; that he noticed defendant’s auto proceeding down Chartres Street, which stopped on the car tracks on the intersection of Esplanade and Chartres Street; that plaintiff then drove his auto into Esplanade Street in the direction of Royal Street; that defendant’s chauffeur negligently started his car, causing it to crash into petitioner’s auto with violence, causing- a damage of $148.85.

The defendant denied all the allegations of plaintiff’s petition, and further answering averred: That his agent was operating his auto “in and upon a neutral ground, car-tracked, right-of-way Avenue, to-wit, Esplanade Avenue”, and immediately prior to the collision "had come upon the intersection of the neutral ground between the two sides of said Avenue where she stopped and gave the usual signal”, and then proceeded from said- neutral ground on the neutral ground side of Esplanade Avenue “turning to the left and in close proximity to the neutral ground, as provided in the traffic ordinances, when plaintiff’s .automobile proceeding generally in • a westerly direction up Chartres Street from below Esplanade, without stopping, signalling, or due care and caution, swung wide around the Chartres intersection on the lower, side of Esplanade Ave., towards the neutral ground of Esplanade Avenue directly in front of and in close proximity to defendant’s automobile and so suddenly as to make it impossible for defendant and his agents to stop the said automobile before the impact”; that plaintiff’s acts above set forth constitute not only gross negligence, but also contributory negligence on the part of said plaintiff, and that plaintiff’s acts, his negligence and his contributory negligence, caused or gave rise to the damage to plaintiff’s automobile.”

There w’as judgment for defendant, and plaintiff has appealed.

The decision in this case is -more important to the public in defining the rights and duties of persons driving vehicles under similar conditions, than in deciding who is entitled to judgment between the plaintiff and the defendant.

As the traffic ordinance is the law of the case, and as the violation of that ordinance imposes liability, it is important to know what the .ordinance provides.

Ordinance 7490, Commission Council Series, adopted August 7, 1923, which is the latest expression of councilmanic will, provides as follows:

Page 2, Article I, Sec. 1. “A vehicle, except when passing a vehicle going in the same direction, shall keep- to the right hand curb as practicable.”
“In turning to the right at a street intersection, hug the right hand curb.”
“The turn to the left at street intersection must be made around the center of the intersection as illustrated above. (The illustration has a dotted íine along the right of the street, along which the vehicle is moving, along the right of the cepter of the street, then turning to the left, along the right hand curb of the side walk.)”
“The left turn illustrated above is a violation of the ordinance.” (The illustration has a dotted line along the right of the street, then before reaching the corner, crossing and as near the right hand curb as possible.)
Sec. 2. “On any Avenue, street or boulevard, divided longitudinally by a parkway or walk, vehicles shall keep to the right of such division. On streets so divided all vehicles, except when in the act of passing a vehicle ahead shall keep to the right of the center of the roadway so as to permit the passing of faster moving vehicles on the left. Driving against or near left hand curb on street so divided, except when passing another vehicle, is strictly prohibited.”
Sec. 4. “A vehicle turning into another street to the right shall turn corner as near the right diagonally to the left until it reaches near the side of the sidewalk on the right.”
Sec. C. “A vehicle when on a street divided by a neutral ground, desiring to turn to the left across the neutral ground shall turn to the left across the neutral ground corner as near the left hand curb as possible. A vehicle intending to turn across the neutral ground should move to the left hand side of the street when about fifty feet.from the corner and hug the curb until the intersection is reached, then turn as in the illustration.”

This section refers to vehicles driving along either side of the neutral side, but not to vehicles only crossing the neutral ground. Defendant’s attorney was in error when he stated in argument that his client was driving along Esplanade Avenue. The testimony of the witnesses for both the plaintiff and the defendant establishes with absolute certainty that the defendant’s car was running down Chartres Street from Canal to Esplanade Avenue. See pages 2-10 and 14 for plaintiff, and pages 8 and 18 for defendant.

Sec. 7 (d) p. 7. “On streets and Avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right of way to complete the crossing of the roadway of such street or avenue under the following conditions: Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of, or turning into, the roadway.”

We do not consider that the above section has any application to this ease.

It is for the benefit exclusively of vehicles crossing neutral grounds and against vehicles driving along either roadway of an avenue divided by a neutral ground.

But it is not against vehicles entering avenues with a neutral ground, from a cross street, counsel for defendant, in his brief, admits that construction to be correct.

He says on p. 4:

“The Court is also directed to the fact that if the car of the plaintiff stopped, as plaintiff says it was stopped, but as is denied by the' witnesses of the defendant, it was a car not in the roadway, and therefore no warning of any kind was due to it, as the warning was only to cars then in the roadway, that is, in Esplanade Avenue, and not a car stopped at the intersection of Chartres Street on the downtown side with Esplanade Avenue on the lower side.”
Sec. 8, p. 8. “Vehicles approaching from the right shall have the right of way as illustrated above.”

Only four witnesses testified as to the accident.

For the plaintiff, the plaintiff himself and a guest in his car at the time of the collision. For the defendant, his two daughters, aged 20 and 21, who were in the car, one of whom Was acting as chauffeur. The plaintiff’s witnesses testified that in turning to the right,' from Chartres Street into Esplanade Street, they hugged the right hand sidewalk. This was strictly in accordance with Sec. 4 of the ordinance quoted above.

The defendant’s witnesses on the other hand, both say that they turned to the left into Esplanade Avenue, keeping within a foot or three from the neutral ground. This was an erroneous appreciation of Sections 1, 2 and 4 of the ordinance, and a clear violation of it, as shown by the illustration at the bottom of p. 4 of the traffic ordinance booklet. The defendant should have driven down the right hand side of Chartres Street, crossed on the river side of the neutral ground, thence around the center of the intersection of the lower side of Esplanade and Chartres, thence along the downtown curbing of Esplanade Street; in other words, the very reverse of what the chauffeur said she did. If she had pursued that course, according to her own testimony, the collision would not have occurred. The decisions of this Court have been that it is necessary to enforce the traffic ordinances, and that the party who violates them must pay for the damage resulting from a collision. Ct. App. Nos. 7891, 8191, 8245, 8249, 8250, 8297, 8820, 8905, 9205; Jones vs. N. O. Ry. & Light Co., 123 La. 1060, 49 South. 706; Police Jury vs. Mayor of Morgan City, 145 La. 359, 82 South. 370; Manceaux vs. Hunter Canal Co., 148 La. 97, 86 South. 665.

Whatever discrepancy exists in the testimony, two facts stand out in bold relief. The first is that plaintiff’s car was on the right of defendant, and that under the last clause of Sec. F the former had the right of way. The second is that plaintiff’s car was the first to turn into Esplanade Avenue, and that defendant’s car ran into it and caused the damage.

The amount of the damage is established by the positive testimony of three witnesses: The plaintiff, the mechanic who made the repairs, and his partner in the business, who was also plaintiff’s guest on the occasion of the accident. The details of those repairs are given by the plaintiff himself. They are as follows: A new left rear wheel, a new rim, a new tire, á tail light, two new fenders, a new axle, a new inner tube, a second-hand gas tank. They are attested to be correct by the mechanic and by his partner who purchased the material and furnished them. These witnesses are contradicted only by the negative testimony of two witnesses, one of whom is an attorney at law representing the defendant herein, and the other is a claim adjuster for the Union Indemnity Company who was raised with the above-named attorney. We consider the testimony of plaintiff’s witnesses of stronger probative value.

The defendant resists payment on three other grounds:

1. That because plaintiff has not paid for the repairs, although they have been made, he has no cause of action; that there is no damage in law until the bill for th'e repairs has actually been paid. This is a novel proposition with which we cannot agree. The mere obligation to pay for the repairs is sufficient. Even if- no repairs had been made, defendant would be bound to pay for the damage committed by him.

2. That the fenders and other parts of the car damaged were old and dilapidated. The law makes no provision for deduction of old for new. The defendant’s obligation is to replace all the parts of the car he had damaged.

3. That plaintiff had paid only $265 for his car two years before, and that the allowance of $148.85 damages for repairs was out of all proportion, and that the car at the present date whs worth only $100. Defendant’s obligation was to put back plaintiff’s car in the same good running order in which it was prior to the accident. It is his misfortune if this has cost $148.85. The price plaintiff paid for it, is no concern of his. It often occurs that the cost of repairing a car will amount to more than its actual value, and sometimes to more than the price of a new car, on account of the labor of taking the damaged car apart and the cost of the new parts and the labor of assembling them.

It is therefore ordered that the judgment appealed from be reversed and set aside; and it is now ordered that the defendant, Anthony Mussachi, be condemned to pay to the plaintiff, Albert Bianchi, the sum of One Hundred and Forty-eight 85-100 Dollars with five per cent per annum interest from August 12, 1924, until paid, and all costs of suit.


text:
    No. 9863.
    Orleans Appeal.
    ZIMMERN BROTHERS v. B. MANHEIM
    (December 15, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 35, 36, 42.
    A contract, however onerous, for the sale and delivery of merchandise, is binding upon all parties thereto in the absence of allegations or proof that the vendor has been guilty of fraud or misrepre- ■ sentation.
    Appeal from First City Court for the Parish of Orleans, Div. “B”, Hon. Val J. Stentz, Judge.
    This is a suit under a written contract for the purchase price of goods.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Weiss, Yarrut and Stich, attorneys for plaintiff and appellee.
    Scott E. Beer, attorneys for defendant and appellant.
   BELL, J.

This is a suit under a written contract for goods, consisting of antique jewelry, sold by plaintiff to defendant, and totalling in amount the sum of $372.00. Fr.om a judgment in favor of plaintiff for the sum of $279.00, defendant has appealed, The sale and delivery occurred on the same date, December 22, 1923, in defendant’s store at New Orleans. The document showing the transaction has been offered by both parties, and consists of an itemized list of the jewelry and its prices. The terms of the sale are also stated in this exhibit as “Less 50% net 30 days.” The defendant admits to having signed the document under the words “Reed. & O. K.” The answer admits the purchase and receipt of the goods and the prices as itemized, but denies that anything is due unless it be a small balance of $13.00. Further answering, defendant avers:

“That by separate, independent, oral agreement, made with petitioner at the time, which said agreement was independent and totally disconnected with the receipt or slip made out by petitioner, and not intended to be covered by said written slip or receipt, petitioner agreed that defendant could return any of the goods found unsatisfactory or unsalable; that defendant found same unsalable and so wrote petitioner, and offered the said goods back (three lavelliers, at $80, billed at $160.)”

Only three witnesses have testified in this case. For the plaintiff, a member of the firm (also its salesman) has testified by deposition. The testimony-of the defendant himself is of no value whatever, for the reason that he is shown in the record, to have testified under oath to certain facts which the third witness, his own bookkeeper, proved to be absolutely untrue. The inconsistent statements of this bookkeeper also show that she was greatly prejudiced in favor of her employer. There is nothing in the record to support defendant’s contention that by verbal agreement, either contemporaneously with or subsequent to the sale, he was given the privilege of returning any of the listed jewelry. We find no merit in the argument of defendant’s, counsel that because of .the $93 payment made within thirty days and because of the attempted return of certain goods long after thirty days, the entire bill has been paid, with the exception of $13. The plain and unqualified terms of the contract, however onerous they may have been, were that the entire amount of the bill, to-wit, $372, was to be reduced to half that amount, if all— not a portion of it — should be paid within thirty days. This has not been done. The entire balance as sued for, therefore, is due, and a judgment for that amount is correct.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed at defendant’s costs in both courts.