text:
    No. 143.
    J. R. Hyams, Adm’r, vs. E. B. Herndon et al.
    The mere relation of attorney and client does not, of itself, disable the attorney of a judgment creditor from buying on his own account at a sale in execution of the judgment, provided he act with perfect fairness and good faith, and in no manner in opposition to the interests of his client.
    When the attorney has so acted; when his client, though advised of the sale, has given no authority to buy; when the bid of the attorney was to the advantage of the client, because, but for it, the land would have been sold at a less price; and especially when, as in this case, the client having been offered the option of talcing the land or the price, preferred and received the latter, he cannot, long afterwards, be permitted to assail the title of the attorney and demand to be substituted as owner under said title.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Young & Shepherd for Plaintiff and Appellee.

      Alexander & Blanchard for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The substantial facts in this case are the following:

The succession of H. M. Hyams had a judgment against M. Baer for the sum of $12,000, which recognized a special mortgage and vendor’s privilege upon certain lands in Bossier parish. This judgment was rendered in 1876, and in the same year the lands were sold for taxes to one Bodenheimer, whose title was afterwards confirmed by the Auditor.

Subsequently, Isaac S. Hyams, then administrator of the succession of H. M. Iiyams, and I. R. Hyams one of the heirs, entered into a written agreement with Nutt and Wise and Herndon, attorneys at law, the substance of which is as follows: After reciting the judgment and tax sale above mentioned, tlie desire of the heirs to provoke the annulment of said sale and their inability to pay the costs and expense of such a suit, the agreement provides that said attorneys agree to sue for the rescission of the sale and for the enforcement of the judgment on the lands, and furnish the money necessary to pay costs of such proceedings and redeem the lands.

It was further stipulated that, in case they should succeed in annulling the tax sale and in subjecting the lands to sale under the judgment, they were to have for their services “fifty per eentmn of the sum bid at the sale thereof; or if bid in by plaintiffs or for them, then fifty jper oenVmn of the value of said lands or an undivided half interest therein.”

Under this agreement the attorneys proceeded to institute the suit to annul the tax sale, in which they recovered judgment.

M. fa. was then issued on the judgment of Hyams vs. Baer, and the lands were seized and advertised for sale.

The evidence shows that the administrator was advised of the progress made; that during the pendency of the advertisement the attorneys made efforts to interest persons in the sale and to get them to attend and bid thereat; that they had no authority from the administrator to bid in the lands for the succession; and that to prevent a sacrifice of the property and for the protection of their own interests, they determined not to permit the land to go for less than two thousand dollars and instructed Col. Snider, of Bossier parish, if it brought a less price, to bid in the land and have it adjudicated to S. B. McCutehen, whom they had selected as their common agent to receive and hold title to the land for them, in order to avoid passing it into the names of a number of persons and to facilitate the transfer in accordance with settlement of interests.

The proceedings attending' the sale were all regular, and not a suspicion of fraud is raised as to any of them. ’ Appraisers were appointed, who appraised the land at $1200. There was open competition at the sale, the bids were run up beyond the appraisement and the land was finally bid in by Col. Snider at the price of $1600, and adjudicated to McCutehen according to instructions.

After the sale, the administrator of Hyams was advised of it and of the price at which the land had been adjudicated, and was given the option of taking one undivided half of the land or one-half of the price, whichever he preferred. The administrator replied that he wanted the money and not land. Thereupon the sum of eight hundred dollars was remitted to him by check to his order as administrator, dated April 5, 1881, which was duly paid; and there was an end of the matter until after the death of the then administrator. In September, 1883, the present administrator of Hyams was qualified, and in April, 1884, this suit was filed.

In the meantime, by settlements with Wise & Nutt, the title of the entire land had passed to E. B. Herndon, with the exception of one-sixth which McCutehen had been allowed to retain for a cash consideration.

The gist of the action is, that McCutehen was a merely interposed party and that the attorneys of the succession of Hyams were the real purchasers, which facts are not disputed; that the land sold for less than its value; that it was clearly to the interest of the succession to buy-in the land; that, therefore, the bid of the attorneys should be considered as the bid of the succession and that the resulting title should be considered as the title of the succession; that papers of the succession show no receipt of any portion of the price for which the land was sold; and if any snch payment was received, or settlement had, it was made in error as to the value of the land and as to the fact that the attorneys were the real purchasers. The prayer is that, “on final hearing tlie land named in the petition be decreed to belong to the succession which petitioner represents, and if any settlement with the former administrator be alleged or set up by defendants, that the same be declared null and void, and set aside as made in error and without authority.”

The defense rests upon the facts of the case which we have fully stated. We have studied tho record with great care and have reflected upon all features of the case without being able to discover any principle from which the plaintiff’s case can derive the slightest support.

Much was said in argument, and in the opinion of the judge a quo, about tiie contract between the administrator and the attorneys, which is attacked as illegal and oontmbonos mores and as a forbidden purchase of a litigious right. But what have we to do with that contract? Who attacks it? What relief is sought against it? The only question in this case is the validity of defendant’s title to the land, and whether or not it enures to the benefit of the holders or of the plaintiff succession. This question is wholly independent of the contract under which the suits were prosecuted and depends entirely upon the validity and nature of the title conveyed by the adjudication. If, under the relations of the parties and the facts of the case, defendants had the right to bid and buy at the sale for their own account, their title is valid and cannot be assailed. If, on the contrary, their relations and the facts were such that the bid and purchase could only be made for the benefit of their client, then the plaintiff’s case must succeed, unless that benefit has been waived. These questions are entirely independent of the contract for services.

Now, what prevented defendants from bidding and buying at the sale?

It was long since settled in this State that the mere relation of attorney and client does not, of itself, disable the attorney of a judgment creditor from buying for his own account at a sale in execution, provided he act in perfect fairness and good faith, and in no manner in opposition to the interest of his client. Relf vs. Ives, 10 La. 509.

We may certainly say of the defendant in this case, under the statement of facts we have given, what was said of the attorney in the case just quoted: “ Throughout the whole business the defendant appears to us to have acted with strict regard to his professional duties, and with even an anxious solicitude for the interests of plaintiff.”

It is said that the land sold for less than its value. Under the evidence here presented, that is probably true. Yet it is to be remembered that most of the lands belong to the class of swamp lands subject to overflows, and that their value is purely speculative, difficult to fix, and fluctuating according to the opinion and views of those who estimate them. Moreover, the land was regularly appraised, advertised and sold at public outcry, with free competition, and no one was found to offer more than the price at which it was adjudicated. Could the title of any competent purchaser be assailed on such a ground ?

It is said that it was to the interest of the succession to bid in the land. Suppose it was. Had the attorneys the right to bind the client by such a bid without his authority or instructions ? The administrator was advised of the sale by sending him copy of the paper containing the advertisement, and no such instructions or authority were given to the attorney.

It is clear he intended no such authorization, as his subsequent conduct shows.

■What harm, then, has befallen the succession? If defendants had not bid, the land must have passed to another purchaser at a less price, whose title would have been unquestionable.

But when we consider that, even after the purchase, the administrator was offered the option of taking half the land or half the price, and accepted the latter, it does seem that all controversy should end. This was a settlement surely within the authority of the administrator, at least so far as the title is concerned. We fail to find any error material to the question. It is said he was not advised as to the fact that the attorneys were the real purchasers. This is itself doubtful; but, if true, it does not seem to affect the case. The only question was, whether he preferred the land or the money. If he should prefer the latter when supposing the land had been bought by Mr. McCutchen, why should he reach a different conclusion if informed that defendants were purchasers.

The next claim is that he was ignorant of the true value of the land. There is nothing to show that his information was not as full as that of defendants. He knew what the land had brought at public outcry. Defendant did nothing to mislead him. He should have made inquiry.

An effort is made to show that, with or without authority, the bid and adjudication to McCutchen was actually made for the account of all parties to the contract, including the succession for one-half, and that the administrator had certainly no right to divest the succession of this vested property by any extra-judicial settlement.

An attentive study of the evidence convinces us, as it did the district judge, that McCutchen’s bid and title were in the interest of defendants only, though they offered plaintiff the option of taking the benefit to extent of one-half, which he declined.

•The district judge, while denying the relief specifically sought by plaintiff, found reason to grant a judgment annulling the judicial sale itself and all subsequent transfers. It seems needless to say that, under the prayer of the petition, which, far from attacking, claims the benefit of that sale, and especially in the absence of Baer, the defendant in the judgment executed, this relief is untenable.

We think plaintiff’s demand must be rejected.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of defendants and rejecting plaintiff’s demand at his cost in both courts.

Judgment reversed.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 139.
    Laura A. Wall et al. vs. W. B. Colbert, Executor.
    Mandate or tbe contract of agency is provable by parol testimony.
    Ten years is tbe prescription period for an action of mandate, or an action to compel an agent to account.
    This prescription begins to run when a settlement has been demanded and refused, or in other 'words when the agency has terminated.
    APPEAL' from the Second District Court, Parish of Bienville. Dreiv, J.

      J. W. Holbert, J. F. Taylor and Alexander & Blanchard for Plaintiffs and Appellees.

      J. D. & J. T. Watkins for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant is the executor of William S. Parham who died in April 1882. The suit is for the recovery of certain moneys belonging to the plaintiffs, received by Parham as their agent, or for so much thereof as he could not account for.

The plaintiffs owned a plantation that Parham sold for them in 1869 for ten thousand dollars, which he received. He was half-brother to Wall, the deceased husband of the plaintiff Laura. The other plaintiffs are Wall’s children. He managed the business of his widowed sister and of her children, and his control of it was as complete and unrestrained as their confidence in him was perfect and unlimited. There can be no question about the facts. The proof of them is abundant. But there is a question whether the evidence exhibiting the facts was admissible.

The defendant interposes as an absolute bar to recovery the prohibition of receiving parol evidence to prove any acknowledgment or promise of a deceased party to pay any debt for the purpose of taking such debt out of prescription. Rev. Civ. Code, art. 2278.

There was no attempt or offer to prove any promise or acknowledgment whatever of Parham to avoid prescription, nor any promise or acknowledgment of his for any other purpose. The parol testimony in question was offered to prove Parham’s agency — his receipt of this money and the disposition he made of it — his lending it to others for Mrs. Wall, and his collections of the sums thus lent — and whatever else established his agency.

It is incontrovertible that agency is provable by parol. Brewster v. Saul, 8 La. 297; Laville v. Rightor, 17 La. 310.

During the interval between the receipt of this money by Parham (1869) and the institution of this suit (1882), more than ten years elapsed. The defendant pleads prescription, and since ten years is the prescriptible period for actions such as this, Prudhomme v. Plauché, 27 Ann. 132, the plea would be good if the term began when the money was received. But it is otherwise. Prescription begins when a settlement has been demanded and refused, or at the termination of the agency. Ins. Co. v. Pike, 30 Ann. 488; Idem, 34 Ann. 825.

The only proof of the time when demand was made for the settlement of the agency is the testimony of the plaintiffs, and that fixes it in 1874. It is true Mrs. Wall says the first demand she made of Parham for a settlement was in 1872, and the defendant’s counsel insists the first demand fixes the date when prescription begins. But it is apparent from the evidence that whatever date be correct of the demand, the agency did not terminate then. Parham’s reply to Mrs. Wall’s demand was an exclamation, of surprise and an assurance of ultimate satisfaction; — “good God Laura, what are you talking about! You know when I die, you and the children will get.it all. What I have gob is yours at my death.” And the agency went on. He continued to do with the plaintiffs’ business just what he had done before. Receipts signed by him as the agent of Mrs. Wall hear date through the years 1875 and 1876, and the continuance of the agency is thei efore shewn up to a time within ten years previous to the institution of this suit.

The court below gave judgment for ten thousand dollars with interest, subject to certain credits that aggregate $6,519.78. An item of $750 among the credits is an error, because it is included in another credit of $1487, and was inadvertently thus twice allowed. The plaintiffs contest other credits, but not to our satisfaction. As well as we can inform ourselves by a transcript that is a mass of confusion and irregularity, the defendant is entitled to all the other credits allowed below.

It is therefore ordered and decreed that the judgment be amended by striking $750 from the list of credits allowed, and that as thus amended that it be affirmed, the defendant paying costs of appeal.


author: Bermudez, C. J.

text:
    No. 9241.
    The State of Louisiana ex rel. Mrs. Jessie K. Bell vs. W. T. Houston, Judge, etc.
    The dissolution of an injunction on "bond amounts to authority to perform tlie prohibited act.
    The execution of an interlocutory decree allowing the commission of an act which, if done, would occasion an irreparable injury — being susceptible of inflicting such irremediable wrong — can be suspended by appeal.
    The determination of the right to such relief unavoidably involves an inquiry into the correctness of the decree. Recognition of the right to such appeal implies an erroneous ruling by the lower court.
    A mcmdamus lies to compel the granting of a suspensive appeal from a dissolving order on bond, where the doing of the act might imperil the home, the health and the lives of the complainants.

      PPLICATION for Mandamus.
    8am’Z L. Gilmore for the Relatrix.

      Branch K. Miller for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mcmdmvus to compel the granting of a suspensive appeal from an order dissolving an injunction on bond.

The motion for the appeal was declined by the district judge, on the ground that the apprehended act, if committed, would not work an irreparable injury.

Tn answer to the application here, he returns that no appeal lies from such an interlocutory decree which can cause no irremediable wrong.

The writ of injunction was obtained to restrain the defendants in the case, who are cistern makers, from erecting on their lot, on which are combustible substauces, a steam engine and appurtenances.

The ground on which the relief was sought is, that there are on defendants’ premises, at all times, large quantities of seasoned cypress and pine lumber and heaps of shavings, highly inflammable in their nature, and that the erection of a steam engine, etc., upon the premises, in the midst of the lumber and shavings, would be in violation of municipal prohibitory ordinances, and place petitioner’s property and the lives of herself, children and servants in constant imminent danger; and that the noise, smoke and escaping steam will injure petitioner’s property and her own and her family’s health.

For the purpose of the rule to bond, the allegations of the petition were taken as true.

The averments set forth material facts: The existence of prohibitory municipal ordinances; the presence, on the premises, of highly inflammable matters; and the intention of defendants to erect the objectionable engine thereon.

The distinct allegation is also made that, iñ case of ignition of those matters, the fire may destroy not only the petitioner’s property, but take away her own life and that of her children and servants.

It is palpable that if the apprehended accidents — which are something more than mere possibilities — happen, they would occasion injury which would unquestionably be irreparable.

No doubt the restoration or value of the property destroyed may be provided for; but bow can this be done where the health, the lives of individuals are impaired or lost?

In 32 Ann. 1194, this Court, after due consideration, said:

The maintenance of the writ is required to preserve to us our homes and to establish us in a state or condition which, lost for the moment, can never be recovered nor the loss atoned for by money.”

The determination of the right of the relatrix in the present case to a suspensive appeal has unavoidably provoked inquiry into the correctness of the dissolving decree.

As that decree amounts to authority to do the enjoined act and as the commission of that act might inflict irreparable injury, it necessarily follows that the execution of the decree may occasion such wrong and can be suspended by appeal, and that the judge erred in his refusal.

It is therefore ordered that the alternative mandamus be made peremptory and that the restraining order herein issued remain undisturbed.


author: Poché, J.

text:
    No. 8654.
    Jesse W. Ross vs. James E. Zuntz.
    The lessee of a sugar plantation has the right to remove all the improvements and additions "which he has made thereon, provided he leaves it in the state in which he received it.
    If the lessee agrees in the contract of lease that all machinery and fixtures put on the property by him shall remain thereon at the expiration of the lease, he loses his right to remove such improvements, but he does not thereby waive his right to claim compensation therefor. Such compensation is the actual cost of the machinery and fixtures.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. S. Benedict and Chas. B. Schmidt for Plaintiff and Appellant.

      Rouse & Grant and Kennard, Howe & Prentiss for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff’s object in this suit is to recover the sum of $46,990, in reimbursement and as the value of improvements which he had placed on a sugar plantation owned by the defendant, and which plaintiff had leased from him for a term of seven years.

The defense is a general denial and the averment that plaintiff’s claim, if any he ever had for such improvements, had been included in, and covered by, a settlement of accounts between the parties, in which plaintiff was shown to be in defendant’s debt in the sum of $18,276.62, for which the former executed his note at the date of said settlement, on January 20, 1879. Defendant also pleaded the prescription of one and three years.

The original lease, made in writing on the the 18th of January, 1874, was for a term of two years, to commence on the first of that month. The rental was for the sum of $6000 per annum and the payment by the lessee of all taxes, State and parish. The lease contained the usual stipulation, binding the lessee to keep the property in good order and repair, and to return therewith at the expiration of the lease the same number of mules, carts and other implements of agriculture. It was also stipulated in the contract that the plantation was to be under the superintendence, supervision and administration of William Stack-house, and that the right of general supervision was reserved to the lessor.

At the time that the lease was executed, the lessor was not yet the owner of the plantation, which was then under seizure at his instance for the enforcement of a special mortgage which he held against William Stackhouse and Hey wood Stackhouse, who were then the owners of the place.

Hence, the defendant Zuntz bound himself in the act to bid at the sheriff’s sale as high as the sum of $50,000 for the plantation, and if adjudicated to him at that price the property became affected with the lease.

But it was specified that in case of a bid by any other party in excess of $50,000, defendant would not purchase and the contract of lease would become null and void. At the sale, Zuntz became the purchaser for $33,000 and the lease went into effect.

A short time before the expiration of the lease, it was renewed between the parties, as shown by the following writing, which was added to the former contract:

“Whereas, the foregoing lease will expire by limitation on the first of January, 1876, now the said parties, lessor and lessee, do hereby extend the said lease for five (5) years from the said date of 1st of January, 1876, for the same price and on the same terms and conditions stipulated in said lease, with the following modifications only: that at the expiration of said lease (1st of January, 1881), the lessee will return to the said lessor the same number of carts and mules, in the same condition and of the same value as when they were received by the lessee, and all machinery and fixtures put on property by the lessee to remain thereon at the expiration of the lease; and lessee will, also, at the expiration of the lease, leave on the property sufficient seed cane to plant one hundred and fifty (150) acres.
(Signed) “JAMES E. ZUNTS,
“J. W. ROSS.”
“Witness (signed): J. II. Ilsley.”

The trial below resulted in a judgment in favor of defendant, and plaintiff appeals.

The main contention in the case involves the proper construction of that clause in the renewal of the lease under which plaintiff agrees that all machinery and fixtures put on the property by him shall remain thereon at the expiration of the lease.

Adopting the construction urged by defendant’s counsel, the district court held that the agreement to leave such machinery and fixtures by the lessee was a part of the consideration of the rental of the property; that such a stipulation became a law to the parties, and that therefore the lessee had debarred himself of the right of claiming compensation for such improvements.

Before expressing our views on this point, we must premise that, under our understanding of plaintiff’s demand, his cause of action discloses two separate and distinct claims which should not be, but have unfortunately been, confounded with each other throughout the whole trial in the district court:

1. We have to deal with his claim for the value of the machinery and fixtures, alleged to have been placed by him and left on the plantation, and for which he claims compensation under the stipulation herein above referred to.

2. In the next place, we must dispose of his claim for other improvements, such as the erection oi new buildings, repairs of old buildings and general repairs for which he claims compensation under special verbal agreements with the lessor, whom he alleges to have consulted as to the erection of the new buildings and whose consent he avers to have obtained before making the other improvements and repairs; as the same became useful and necessary, and for the payment of which the defendant Zuntz had bound himself according to law.

The record contains ample proof of great outlays of money by the lessee in making numerous and valuable improvements on the plantation during the term of his lease and of the actual cost of the same.

In his testimony, the defendant strenuously denies that his plantation was in the least improved, or its value enhanced, by the radical changes made in the sugar-house and the extensive additions made to it and to other buildings on the place by the. lessee. He contends, on the contrary, that the property was in a better condition and more valuable at the beginning than at the termination of the lease. But in that bold assertion he is not borne out by the record, and much less by his own acts as shown by the evidence and viewed in the light of reason and of human experience.

The value of the plantation at the time of his purchase was, in his own opinion, not more than $50,000. To that amount he restricted his obligation to bid at the sale provoked by himself for the payment of his mortgage claim, which was double that amount. At the termination of his lease, he stated to several persons that the property was worth $100,000 and that he would not consent to a sale at that price. He reiterates that statement in his testimony. From the record, it appears that from the year 1874 to 1881, the prices of sugar and molasses were steadily declining on the market, and that plantation property had not improved in the sugar section of the State. Hence, it is not correct to assert that under the lessee’s management the property had depreciated in its intrinsic value.

But these considerations leave open the question of plaintiff’s right of recovery for the value of his improvements under the terms of his lease.

The first objection in order is the effect of his settlement of accounts with defendant in 1879. It is contended that, having made a settlement with his lessor without including or even referring to his claim for improvements, the lessee in this case must be presumed to have then considered that he had no such claim; or otherwise, that he had abandoned or waived the same.

In this connection, the record shows that the relations between the parties were closer than usual between lessor and lessee. The lessor had reserved the right of general supervision over the plantation; and he exercised that right with great watchfulness, but with commendable indulgence and even with benevolent friendship for his lessee. As he had unlimited credit and considerable available means, he frequently endorsed his lessee’s paper, and at other times advanced him money for immediate and unforeseen wants during the cultivation of the crops. At their annual settlement, if the lessee’s means were short the lessor would remain the lessee’s creditor for part of the rent, and sometimes on account of advances and endorsements. Hence, it appears that the settlement of January 20, 1879, included a pre-existing note of $12,-049 80, another similar note of $1505 13, several instalments of the rent of the year 1878, and some advances of money. Of course no mention was, or could reasonably have been, made of a claim which, under the terms of the contract, could have no existence before the expiration of the lease, which had yet two years to run. The lessee had no more right to then claim compensation for Ms improvements than the lessor could at that time have insisted upon the seed cane necessary to plant 150 acres, or payment for the rent of the years 1879 and 1880. These were also important stipulations in the contract of lease, but the performance of neither could be exacted in advance of the terms of the contract.

That settlement cannot, therefore, operate as an estoppel against plaintiff’s present demand, and hence it is no bar to his right of recovery for the value of his improvements.

1. We shall now consider the claim in so far as it covet'» the improvements, other than machinery and fixtures, put on the property by the lessee. A reference to the detailed statement attached to this ijetition shows that this class of improvements consists mainly of the rebuilding of the sugar-house, which was increased in size, of a bone black house, and of a syrup room, together with necessary attachments and appurtenances. It also embraces repairs to the draining machine and to several other buildings on the plantation.

The record shows that those improvements were for the greater part of brick and cement, and that they were not additions in the legal sense of the term. Hence, the right to recover on account of those improvements, which are properly speaking repairs, must be tested under the provisions of Article 2694 of our Code, which provides that if the lessor refuses or neglects to make the necessary repairs, the lessee may cause them to be made and deduct the price from the rent due, on proving that the repairs were indispensable, etc.

From the preponderance of the evidence it appears that the reconstruction of the bone-black house, and of the sugar-house and syrup room, can safely be treated as necessary repairs, and that the sum of $22,000, which is claimed in compensation for the same, is reasonable.

In order to bring that branch of his case within the requirement of the law just referred to, plaintiff alleges that these repairs and alterations, shown as herein before stated to be actually necessary, were made and erected with the express consent of the lessor, who agreed to pay for the same at the expiration of the lease. These allegations are sworn to with great precision by plaintiff in his testimony, but are denied with perhaps greater emphasis by the defendant, who swears that the repairs were not necessary, and that they were made by plaintiff at his whim and caprice, to suit his own taste or convenience, and that they imposed no obligation to pay for the same on the lessor. . It is true that the denial of the defendant is not actually borne out by the record. It is shown, and he admits, that he furnished some of the bricks and lime and other materials used in the reconstruction of the sugar-house and bone-black house. Hence he must have consented to such repairs, reconstructions and alterations. But on the crucial test involving his agreement to pay for those improvements, the evidence is not satisfactory. On that point plaintiff has only succeeded to make his case probable, but he has not established his allegations with legal certainty.

We shall, therefore, reject that part of his claim, but in our decree we shall reserve his rights to make proper demand, as in case of non-suit.

2. His right to recover the value of the machinery and fixtures, as contradistinguished from other improvements and repairs, hinges upon the construction of his agreement in the contract of renewal, to leave on the plantation all machinery and fixtures put on the property by him during the existence of his lease. Defendant’s contention is that this agreement was part of the consideration of the price of the lease, and in consideration of the very low price of the rent.

It is elementary in jurisprudence that stipulations in a contract must be construed with reference to the laws which govern the main contract and the subject matter embraced therein. Hence the parties must be presumed to have contracted with full knowledge of, and with special reference to, our laws treating of, and providing for, the contract of lease which is such an important feature in the relations and in the daily commerce of life.

In the first contract, no reference whatever had been made to the subject of improvements and repairs. The sole reference to the condition of the leased premises, was the one concerning the obligation on the part of the lessee to keep the property in the same condition in which he received it, ordinary wear and tear excepted, and to return the same quantity of agricultural implements and working animals.

The record shows that during the first two years the lessee had found it neeessary to make great improvements and extensive repairs on the plantation, and when the parties proceeded to renew the lease for a term of five years, their attention was by their past experience, drawn to the question of improvements. They weye both aware of the provisions of article 2726, Civil Code, which confers the right on the lessee to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.”

The defendant therefore knew that unless otherwise provided for, his lessee could and doubtless would remove many x>ieces of valuable machinery which he had already placed, and others which he contemplated to put, on the plantation and which would become indispensable to a proper and profitable cultivation of the place. Hence he thought it well and prudent to guard against such an emergency — and with his lessee’s consent, he stipulated and secured the right of retaining such improvements at the termination of the lease. These were improvements which the lessor had not the option to retain by paying for them as in the case with additions made with brick and cement. They were improvements which the lessee had the legal right to remove at the end of his lease, in the absence of stipulation to the contrary.

We are asked to decide with the district judge that the lessee thus bound himself to leave machinery and fixtures which, under the law, were his lawful property, without any compensation for the same. We cannot assent to such a proposition. What legal right did the lessee waive by his consent to that stipulation H The Code answers that he waived the right of removing his machinery and fixtures to be found as attached by him to the leased plantation. Evidently he did not in terms waive Ms right of ownership of the same during the lease — and manifestly such a waiver was not expected of him by the lessor. Had such been the intention of the parties, words to convey that meaning would have been used. In that case the stipulation would have been composed in terms like the following: “all machinery and fixtures put on the propertjr by the lessee, to become the property of the lessor, and to remain thereon at the expiration of the lease ” — or in this way : “all machinery and fixtures, etc., to remain thereon free of charge to the lessor.” But it is too obvious for argument that courts will not add words to a contract for the purpose of ascertaining the true intent of the parties.

We hold that this stipulation, read in connection with the original contract and in the light of the textual provisions of our Code, is not even ambiguous, and that its plain meaning was simply to debar the lessee of the right of removing his machinery and fixtures put on the leased premises by him, at the expiration of his lease. Beyond that, the law determines his rights, which are a reasonable compensation for property which he thus transfers to his lessor, but which the law does not presume that he intended to give.

The intent of the parties is to he determined by the words of the contract which are to be understood like those of a law, when they are clear and explicit and lead to no absurd consequence. C. C. 1945, 1946.

To construe this stipulation as meaning that the machinery and fixtures put on the property by the lessee were to remain thereon free of charge to the lessor, would lead to the conclusion, absurd in our opinion, that the lessee, a man of limited means, would have contracted to pay an annual rental of $6000, and pay the taxes shown to average $1000 a year, on a plantation not exceeding $50,000 in value, and to leave on the property, as an additional consideration, machinery and fixtures shown to have cost him more than $20,000. Had he thus bound himself in clear terms, the courts could give him no relief, but we are as powerless to construe him into an obligation which he did not undertake, and to which the terms of Ms contract did not bind him.

We note defendant’s argument that the agreement by the lessee to transfer, free of charge, to the lessor, his valuable machinery and fixtures, had a valid consideration in the low figure of the rental. If such was the case it should have been so stated in the act. But in point of fact, the price of the rent was neither low nor disproportionate to the value of the thing let. A rental of $6000 and the indemnity from taxes amounting to $1000 a year, on a plantation avowedly worth but $50,000 is a very handsome compensation- it represents an annual net income of twelve per cent on an investment of $50,000.

The foregoing considerations are in perfect harmony with our established jurisprudence.

In the case of Miller vs. Michoud, 11 Rob. 225, the lessee had bound himself to leave his improvements without claiming compensation therefor, and the court properly held him to that feature of his contract. A similar stipulation was enforced in the case of Talley vs. Allexander, 10 Ann. 627. A like agreement was found in the case of Larquier vs. White, 29 Ann. 157—and the lessee was denied the right of recovery for the value of a boiler which he had attached to a leased sugar-house.

In recognition of the principle which we have herein announced the Court said in that case: Under the law, and without a stipulation to the contrary, defendant (the lessee) would have been entitled to either the boilers or their value; under the contract he is not.” D’Armand vs. Pullin, 16 Ann. 243; Pecoul vs. Augé, 18 Ann. 614.

In the latter case the Court held that the lessee had the absolute right to remove his improvements; that he, was not obliged to take their equivalent in money, and that the lessor was not bound to keep and pay for them, but that if he elected to keep, he was bound to pay for, them.

In our case the lessee liad agreed to leave, and the lessor had by his subsequent acts agreed to keep, the machinery and fixtures in question. We must hold that, without a stipulation to the contrary, ho is bound in law bo pay for them.

In the case of Penn vs. Citizens’ Bank, 32 Ann. 195, the Court recognized in the lessee the right to claim a boiler which ho had attached to the leased promises, and as it appeared that the lessor had elected to keep the boiler, the cause was remanded for the purpose of ascertaining the value and cost of the boiler. 32 Ann. 371, in the matter of the Morgan R. R. Co. praying, etc.

^or the reasons given on the plea of estoppel, the ploa of prescription is untenable and is therefore overruled. The claim became due on December the 31st, 1880, and the action to enforce ifc was brought on January 3, 1881.

Having thus reached the conclusion to hold the defendant liable for the payment of the machinery and fixtures in question, we have nothing left but the task of ascertaining what items charged in his statement of improvements, annexed to his petition, properly fall within that category, and the value of the same.

Under our interpretation of the contract and of the agreement touching these articles, the parties should be governed as to the value of the same by the provisions of article 508 of our Code, and hence the lessor who has elected to keep those improvements is only bound for the cost of the materials and the price of workmanship, and not for the enhanced value of the property. 33 Ann. 188, Graf vs. Friedlander; Kibbs vs. Campbell, 34 Ann. 1163; 32 Ann. 203.

The cost of these improvements is shown by the testimony of plaintiff, corroborated by that of other witnesses with whom he dealt or whom he employed, and is supported by receipts and other vouchers duly proven as genuine.

Wo note in this connection defendant’s reiterated complaint that those statements show that he is charged with the costs of farming implements of a perishable character, with lime and bone-black and other articles consumed by use. Such articles do figure in the bill which plaintiff procured from his dealers ; but they form no part of the prices charged in the statement of the cost of the machinery and fixtures for which he claims and we allow compensation.

After a thorough examination of the account we have allowed compensation as claimed on the following items of machinery and fixtures :

The allowance for railroad ties, for labor in building new stables, erected by the lessor himself, and the labor for a wire fence, results from proof of agreement between the parties. These improvements were made by the lessor, and the amounts charged are for labor furnished by the lessee.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed. It is now ordered and decreed that plaintiff, Jesse W. Ross, do have and recover judgment of the defendant, James E. Zuntz, in the sum of twenty-one thousand one hundred and ten dollars, with privilege on the property herein described, and for costs in both courts. And that his claim for the balance of his account sued on and annexed to his petition be rejected and his action thereon dismissed as in case of non-suit.

Rehearing refused.


author: Todd, J.

text:
    No. 8667.
    John Hepting et al. vs. New Orleans Pacific Railway Company.
    A legislative charter may confer upon a railroad company the right of way upon any street, highway or turnpike in the State, and the right to construct thereon its road
    Under such grant the company is authorized to lay the track of the road upon ;.nd through the street of an unincorporated town along its route without farther permission or authority. The company cannot, however, so exercise the right and construct the road through a street as unnecessarily impair the right of the public to the free use of such street, and indict serious and unequal damage upon private property contiguous to said street; and property owners so injured may domand by suit the reconstruction of the track, and under conditions its ultimate removal.
    APPEAL from tbe Civil District Court for the Parish of Orleans. Bigldor, J.

      J. S. & J. T. Whitaker and H. H. Taylor for Plaintiffs and Appellants.

      Kennard, Howe & Prentiss for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, owners of property fronting on and contiguous to Third street, in the villages of Gretna and Mechanicscham, in the parish of Jefferson, complain and charge that the N. 0. Pacific Railroad Company has laid its track through said street in such manner as to obstruct the street and impeded or destroyed the free use of it, to the great injury of plaintiffs and damage to their property. They further allege that said track was laid without any legal authority therefor.

They pray that the defendant company be condemned to remove its track and pay damages from judicial demand until the removal of the . same.

On an exception, substantially of no cause of action, the lower court dismissed the demand for damages and overruled the exception in other respects. And here we will remark that in the absence of any demand of the plaintiffs before this Court to remand the case for the purpose of taking evidence touching the damages, and the claim for damages not being pressed before this Court, and there being no evidence in the record to base an estimate upon, we shall consider the question of damages eliminated from the case, as now presented, and shall confine our attention to the other relief asked for — the removal of the alleged obstructions.

The defendant pleads the general issue, and claims to have exercised the right disputed by virtue of the company’s charter — being act 14 of 1876 of the General Assembly of this State, the sixth section of which reads as follows:

“ To construct and maintain its said railroads, Or any part of the same, and to have the right of way therefor across or along or up on any waters, water courses, river, bay, lake, inlet, street, highway, timypilce or canal within the State of Louisiana, which the course of said railways may intersect, touch or cross; provided the said company shall preserve any water course, street, highway, turnpike or canal which its said railways may so pass upon, along or intersect, touch or cross, so as not to impair its usefulness to the public wnneeesscm-ily, or if temporarily impaired in and during the construction of the said railroads, the company shall restore the same to its former state, or to such a state that its usefulness and convenience to the public shall not be immeeesscvrily impaired or injured.”

And it is further alleged that the right thus granted is confirmed by an ordinance of the Police Jury of the parish of Jefferson — the villages in question being unincorporated. . .

Prom a judgmenc dismissing the suit the plaintiffs have appealed.

The plaintiffs deny the power either of the' State or of the Police Jury to grant or confer the right claimed by the company, upon which it justifies its action in laying the track upon and along the street mentioned.

While we fail to discover any authority in the Police Jury, under the general and special powers delegated by statute to such bodies, to make or confirm the grant in question, yet that the State has such power seems to have passed beyond the domain of controversy, and has been expressly recognized by this Court in the case of Harrison vs. N. O. Pacific Railroad, 34 Ann., and is amply and unquestionably sustained by the authorities therein cited.

The counsel for the appellants, however, deny that the charter of the company confers any such right with respect to this particular street in the absence of special mention and designation of the street in the body of the act. We do not conceive that any such special designation was necessary. The section granted above expressly gives the right of way along or upon “ any street, highway or turnpike in the State of Louisiana;” and this is comprehensive enough.

It is to be observed, however, that it is only the right of way that is given,-and a fair construction of the law and the' terms of the grant plainly implies that this right of way does not confer on the company the exclusive use or possession of a street, highway or turnpike, as the case may be; but, on the contrary, that the privilege or concession conferred is to be exercised with strict regard to the rights of others, both public and private.

The grant confers no power on the company, and could confer none to deprive others of their rights with respect to this street, except under the exceptional conditions provided by law and after due compensation. Public places of this kind can only be appropriated to the use of private corporations for railway or other purposes, upon the hypothesis that they can be thus applied without serious damage to any one; and this is the more evident in this State when viewed in the light of a positive constitutional prohibition contained in article 156 of the present Constitution, “that private property shall not be damaged for public purposes without compensation,” which is but the explicit enunciation of a principle that pervades every enlightened system of jurisprudence. Hence it would follow that, if the laying down the track, owing to the grade established or from its proximity to the dwellings or houses, obstructed free access to or egress therefrom, or from other cause inflicted essential damage, it would afford just ground of complaint. Redfield on Railways, Vol. 1, 324; Dawson vs. Delawne, 7 Ohio (N. S.) 459; Avenue R. R. Co. vs. Cumminsville, 14 Ohio, 523; 37 Barb. 357; 39 lb. 494.

or, in our opinion, is this principle dependent upon the question discussed by the counsel in this case, and upon which the decisions of this Court are not entirely harmonious — that is, whether the fee of the land over which the street or highway passes lies in the contiguous proprietors or belongs to the public. Renthorp vs. Bourg, 4 M. 136; Mayor vs. Hopkins, 13 L. 326; Hatch vs. Arnoult, 3 Ann. 482. For apart from any consideration as to where or in whom the fee of the land lies, and apart from the kind of right in property that the public has in a street or highway, there is a private right which belongs to the proprietor of a lot or building fronting on the street, and is au appurtenant to it — that is, as much property, as the lot or building itself being tbe right to the free use of the street in front of his premises affording access to his house for persons, animals or vehicles, as his wants or convenience may require. This right is as much subject to the protection of legal and constitutional guarantee as any other species of property. Haynes vs. Thomas, 7 (Porter) Ind. R. 38; Ib. 479; Thompson vs. West Somerset R.R., 29 Law Times, 7; 56 B. (N. S.) 174; S. C. 5 Jar. (N. S.) 70; 9 Ind. 467, 433.

When we apply these principles to the case before us under the evidence in the record, and after a thorough examination of the same, we are satisfied that the plaintiffs in this case had ample ground of complaint against the defendant company for the manner in which its track was laid and constructed through and upon the street in question.

The grievance was more palpable and the injury more apparent at the commencement of the suit than it was at its termination in. the court below, for the reason that either the complaint made or a sense of justice had caused some amelioration of the obstructions made by the track of the road, by work done after the filing of the suit.

But whether we consider the condition of the street, caused by laying of the track, at the inception of the suit or its subsequent condition, we have no doubt that the plaintiffs still have just cause of complaint and suffer serious injury.

The maps and other evidence submitted show that the street in question is forty feet wide; that the banquets on either side occupy seven feet, making fourteen feet for both sides. That the street is not entirely straight, and that the track of the road does not conform to the direction or curves of the street and does not occupy the centre of it, but crosses from side to side, in some places actually impinging on the banquets, and in others approaching the buildings so closely that no room is left for the passage of vehicles, and, in the language of the witnesses, not even room for the running of wheel-barrows.

The consequence of this is, as described by the testimony, that in some instances the proprietors or occupants of the houses fronting on or contiguous to the street are denied access to their premises with carts carrying wood, coal or other necessaries, and these have to be unloaded and their contents carried by hand some distance to their destination. Such inconveniences, in addition to the absolute danger to property and persons consequent upon the near approach of the locomotives and trains to the buildings, make the grievance severe, if not intolerable.

It must also be taken into consideration that the track of the road is raised above the level of the street and the banquet, making it difficult, if. not impossible, ior vehicles to cross the same at any other points than the crossings at the intersections of the streets; and although this difficulty was to some extent removed by the work done after the institution of the suit, .yet even after such work, and in the present condition of the street, there is just cause of complaint.'

In short, the course of the track through the street, as we have described it, and its elevation above the street and the banquet, admits, necessarily, of no positive or satisfactory amelioration, except by an absolute and complete reconstruction of the work, both as to the direction or course of the track and its relative height with respect to the street and banquet. The company under the legislative grant have the right to the use of the street, but they must exercise that right so as not to inflict unequal damage and damage that may be avoided, upon the proprietors or occupants of houses along the line of tire street. Their franchise does not entitle them to infringe unnecessarily and unequally upon public or private property.

The principle of “sie uiere tuo ut alienum non laedasn is still a living principle, unimpaired and unaffected by the extraordinary developments of modern progress; and when it is plainly and unexcusably violated, courts should, as far as practicable, supply the remedy and not be moved therefrom by the codensiration that seems to have determined the court of the first instance, that the repairing of the injury done or the damage threatened m this instance wa's a subject exclusively for legislative or municipal direction and control.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; and it is now or-déred, adjudged and decreed that the defendant, the N. 0. Pacific Railroad Company be and it is hereby required to reconstruct the track of its road through Third street in the villages of Gretna and Mechanics-ham, in the parish of Jefferson, in such manner that the line of the track shall be parallel with the buildings fronting on said street and as near the centre of said street as practicable and on a level with said street, or at so slight an elevation above the same as to admit at all places the easy and convenient crossing of the track of the road by vehicles.

It is further ordered and decreed that such reconstruction of the track of said road through said street in the manner above set forth shall be completed, or the track entirely removed therefrom, within three months following the rendition of this judgment, and that in default of such reconstruction or removal the defendant company be prohibited from using said track, reserving to the plaintiffs in the event of a noncompliance with, this judgment to have the track removed by the lower court through the sheriff, at the expense of the defendant.

It is further ordered that the defendant pay costs in both courts.

Rehearing refused.


text:
    No. 9242.
    The State ex rel. Henrietta Page vs. T. J. Ford, Recorder.
    Where a police regulation specifically empowers the mayor of the city to order the summary removal of an occupant from a house for certain causes, and. subjects such occupant to penalties for disobedience, and it does not appear that the mayor has ever ordered her removal, she has not committed the act of disobedience that brings her within the jurisdiction of the police court.

      J. H. Ferguson for the Relatrix.

      W. H. Rogers, City Attorney, for the Respondent.
   The opinion of the Court was delivered by

Manning, J.

An affidavit was made last August before the respondent Recorder by a seijeant of police that he had served a notice on the relatrix, commanding her to remove from No. 10 Rampart street within ñve days and that she had not obeyed it, and had thereby violated a police regulation contained in Jewell’s Digest. What that regulation is the affidavit did not mention but art. 126, the regulation referred to, empowers the mayor of the city to order the occupant of any house of prostitution or assignation that may have become dangerous to public morals to remove therefrom in five days.

Thereupon the relatrix obtained a prohibition of further proceeding against her until the complaint could be heard here,'and a writ of cer-tiorari to bring it up, alleging that she is occupying the house under a lease that does not expire until October 15th. following, denying that she is keeping a house of prostitution or assignation, and setting forth sundry objections to the jurisdiction of the Recorder.

It does not appear that the mayor has ever ordered her removal, and since to-him is specifically delegated the power to order removal thus summarily, until he has ordered it and she has disobeyed, she has not violated the ordinance and brought herself within the jurisdiction of the Recorder.

The parties seem to have lost all interest in the matter. Neither had filed a brief. The respondent came in with one at the last hour.

On the face of the papers no course is left for us but to perpetuate the writ of prohibition, and it is so ordered.


author: Fenner, J.

text:
    No. 9298.
    Fanny K. Phillips vs. Her Creditors.
    In respite proceedings, creditors domiciliated out of the State, though not summoned, have the right to appear and vote in the meeting of creditors.
    Creditors are not hound to appear at the meeting in person, hut may do so through properly appointed proxies or attorneys in fact.
    The oath to their debts, of creditors who appear by proxy, may he made either by the creditors themselves before any proper officer, or by their proxies before the notary holding the meeting, provided the proxies swear of their own knowledge and not merely of belief 01 of derivativo information.
    Creditors who have voted at the meeting have no right to withdraw or change their votes, without legal cause assigned, after the procés verbal of the meeting has been returned into court and during the pendency of proceedings for its homologation.
    Under the terms of the Code, the filing of a proper schedule of assets is a condition precedent to the binding effect of the respite upon creditors.
    When such schedule has not been filed, the defect may be urged as ground of opposition to the granting of the respite. When the respite has not been refused by the creditors, but has been refused by the court on the ground of defect in the proceedings, the cession of property does not follow under the terms of the Code, but the relief sought by the applicant is simply denied and the case terminates.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Clegg, J.

      C. S. Rice and M. E. Girard for Plaintiff and Appellant.

      Geo. H. Wells and C. A. Mouton for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

This is an application for a forced respite. It appears from the procés verbal of the notary public that at the meeting of creditors, the votes of thirteen creditors whose claims aggregated in amount the sum of $3351 42, were recorded in favor of the respite; and the votes of three creditors, whose claims amounted to $3071 30, are recorded against the respite.

Within ten days after the return of the procés verbal into court, several oppositions were filed to its homologation.

The case bristles with|controverted questions arising under the law of respite, on which subject our jurisprudence is singularly barren of decisions.

1. Several of the creditors voting on either side were domiciliated out of the State, and it is contended that such persons liad no right to participate in the proceedings.

We cannot approve of this proposition. Such creditors are not to be summoned according to the’law; but their interest in the proceedings is recognized by the provision requiring the appointment of an attorney to represent them and prescribing his duties to establish the debts of the absentees and to see that the proceedings are conducted legally. If they choose to appear and act in their own behalf at the meeting, we see no reason why any discrimination should be made between the rights accorded to them and those of resident creditors.

2. All of the creditors save one appeared and acted at the meeting through proxies; and the point is made that, under paragraph 5 of Art. 3087 C. C. no creditors can vote who do not appear in person and “make oath before the notary holding the meeting,” to their debts. We hold that this carries strictness of verbal construction beyond reasonable limits; and that, under the application of the maxim, qwi facit per oMum faoit per se, the creditor who acts through a properly constituted agent complies with the requirement and reasonable intendment of the law. It would be an intolerable oppression to require creators living in parts of the State remote from the place of meeting, to journey thither in person, under penalty, in case of failure, of losing their right to vote and being bound by a forced respite granted by attending creditors, however few in number.

3. In some instances the oath to the debt had been made by the absent creditor in due form before a competent officer of his domicile, and this affidavit was filed at the meeting by the agent, together with his power of attorney. We think this was a substantial compliance with the law, and its sufficiency results as a necessary corollary to the preceding proposition just discussed. The object of the law was to secure proof of the debt by proper affidavit, and the provision that it must be made before the notary holding the meeting could only apply to the contingency in which the creditor appeared at the meeting.

4. In other instances, the attorney himself made oath to the debt. In matters of insolvency, where creditors are allowed to act in meetings through proxies, the jurisprudence is clear that the proxy may make the required oath to the debt, provided he swear of Ms oion Imowledge, and not merely of his belief or of merely derivative knowledge or information. Planters’ Bank vs. Lanusse, 10 Mart. 690; Pandely vs. Creditors, 9 La. 387; Reed vs. Powell, 11 Rob. 98.

The same rule applies here.

5. It is claimed that Michael Levy, the proxy who made oath to debts of several creditors represented by him, had no knowledge whatever of the debts except such as was merely derivative. This charge may be true, but it is sustained by no evidence whatever. The oath of the proxy is direct, positive and unqualified. The only evidence touching his relation to the parties is that showing that he had been in the employment of the petitioning debtor. This fact, far from establishing that he could have no personal knowledge of the debts, tends rather in the contrary direction.'

6. It is claimed that Michael Levy, who acted as proxy for several of the creditors, had really no authority to vote for them. There is no dispute that the power of attorney filed by him was signed by the creditors whose names are attached thereto, and that said power did confer upon him an authority to vote for them in the respite proceedings in certain contingencies. If we were guided exclusively by our construction of the instrument, we should doubt whether the contingency upon which his authority to vote arose had occurred. But we have strictly examined the oppositions filed without finding, among the grounds thereof, any assignment of his want of authority except as to one of the creditors, Hornthall, Whitehead, Weissman & Co., and that avej^nent is supported by no evidence whatever. . Besides, the above named creditor, with others, have appeared in the proceedings for homologation, and, without challenging the authority of Levy to vote, have applied to the court for permission to'withdraw or change their votes. We quote the exact language used by that creditor. “Your appearer represents that at the' meeting of creditors held in above suit on February 1st, 1883, their vote was recorded for the respite. Your appearer further alleges that they now desire to be permitted to withdraw their vote given for the respite,' etc.

Language of similar purport was used in the applications of other creditors represented by Levy. There is no denial, but on the contrary an admission, that the vote cast by Levy for them was “ their vote.” They do not deny that they voted at the meeting through him — they only ask to withdraw or change their vote. This is an acknowledgment of his authority and a ratification of his action, which removes that question from controversy.

7. As above indicated, several of the creditors, who had voted for the respite through Levy, applied to the court for permission to withdraw or change their vote. This application was made long after the meeting had been closed, after the prods verbal thereof had been filed in court, after all the oppositions thereto had been filed, and, indeed, during the pendency of the trial. The court allowed the application and, the result of the vote being thereby changed, it rendered judgment refusing the respite.

In this course the j ndge was guided by a dictum of this Court in the case of Anderson vs. His Creditors, 33 Ann. 1158. The passage relied on is in these words: “In making the computation, we leave out of view the question whether the Citizens’ bank, which had at first voted against and which subsequently intervened praying to be permitted to vote for the respite, can be allowed to do so. It is clear that, if the bank could not change its vote, it could withdraw it before homologation. Even if it could not, the Vote against the respite would be that of nine creditors representing $17,106 against, and ten creditors representing $30,670 for the respite.”

It does not very clearly appear from the opinion whether the bank’s application might not have been made before the closing of the meeting and the return of the procés-verbal. But in any event the above extract shows how purely obiter was the dictum. It has no force as a precedent.

It is true that the Code speaks of even the forced respite as a contract, saying in article 3091: in order that the contract of respite may be effectual it must be homologated by the judge who ordered the meeting of creditors.”

It is argued that, as it is a contract and as it does not become finally concluded before the homologation, therefore the parties remain at liberty to withdraw from it at any time before it is finally concluded. Notwithstanding the expression of the Code, it is obvious that the forced respite is not, properly speaking, a contract, because a contract is only binding on those who consent to it; while the forced respite is binding equally on those who expressly refuse to consent. No mere contract coxdd have such an effect. The forced respite results, not from contract, but from the operation of law, and is the effect given by the law to the decree of a competent court, rendered in a judicial proceeding conducted according to the requirements prescribed by law.

One of the prerequisites to such a decree prescribed by law is that the judge shall order a meeting of creditors to be held before a proper officer, that due notices of said meeting shall be given, and that such creditors as desire to do so may appear at that meeting and, on complying with prescribed requirements, may vote for or against the respite.

As the term “ vote ” indicates, it is a kind of election, the time and place of holding which are fixed by law to be at the meeting of creditors. When that meeting terminates, the polls are closed. The proces-verbal returned into court is the equivalent of a return of the election. Its results cannot be altered by subsequent changes in the minds of the voters, nor can they be invalidated except upon proof of defects in the proceedings or of error, fraud or violence affecting the votes.

There is no more warrant for allowing' parties who have voted to change or withdraw their votes, of their mere volition and without legal cause assigned, than there would be to permit those who had omitted to vote to come into court after the meeting and record their votes. If such changes might be allowed, what would be the result 1 Parties interested might well say that the judgment of the court is not based upon the vote of the creditors at the meeting as provided in the law, but upon their action after the meeting. They might justly claim that, at least, a new meeting should be ordered; for they might say that they rested content with the result of the vote as recorded, and that, had it not shown a majority for the respite, there were other creditors whose attendance might have been secured, that would have voted for it.

But after the new meeting had been held, subsequent changes might annul its results; and thus the proceeding would rest in perpetual indecision subject to vacillations in the minds of creditors.

It seems clear to us that the only test of the question whether the respite has been granted or refused by a majority of the creditors, is the result of the vote cast at the meeting as shown by the procés-verbál returned into court, and that such result cannot be altered by any subsequent action of the creditors unless based on grounds legally invalidating the votes or the proceedings.

Therefore, the judge érred in allowing creditors either to withdraw or change their votes, without legal cause assigned.

It was necessary to decide the foregoing questions in order to determine whether or not the respite was granted or refused by the creditors, because although, on the remaining point, we refuse the respite, it is on grounds which lead to different results from those which would have followed, had the creditors refused the respite.

8. The last ground of opposition to be considered is that the schedule filed by the petitioning debtor did not contain a true and exact schedule of all his movable and immovable property, as well as his debts.” C. C. 3087.

The only statement of assets contained in the schedule filed, is in the following words:

“Merchandize, as per ledger and open accounts, horses, etc., $10,120.”

How much merchandize and of what kind, how many open accounts and against what debtors, how many horses, whether two or a hundred, the schedule fails to indicate even by a hint. It would be a waste of words to emphasize the utter insufficiency of such a schedule, as a compliance with either the letter or spirit of the law. It is so grossly inadequate as not to admit of discussion.

Let it be well understood that we should not be hypercritical in criticizing the sufficiency of a schedule attacked at so late a stage of the proceedings, and would be disposed to sustain one which even approximated the requirements of the law; but it is impossible to pass over such defects as this schedule presents, because it is the entire equivalent of no schedule at all, or of one simply stating, “property, $10,120.”

Now, the Code provides that the respite granted by a majority of the creditors, when approved by the judge, “shall be binding on the other creditors who did not agree to it;” but it adds: “but in order that it may produce that effect, it is necessary that the debtor should deposit in the office of the clerk of the court to whom he presents his petition for calling his creditors, a true and exact schedule, sworn to by him, of all his movable and immovable property, as well as his debts.’ If this schedule has not been filed, it seems, from the terms of the law, that the respite, even if granted, would not be binding on creditors who did not agree to it; at least if they had not taken part in the proceedings. It is settled by this Court that such objection may be urged on opposition to the homologation of the proceedings of the meeting, even by a creditor who did not appear at the meeting.” Burdon vs. His Creditors, 20 Ann. 364.

If is urged here, both by creditors who appeared and by some who did not appear at the meeting. It would be unjust to grant a respite which would be binding on some and not on other creditors, restraining the former from acting while leaving the latter free to subject the property of their debtor to the payment of their claims.

For these reasons, we think that the judgment refusing the respite should be affirmed.

But the question remains whether the remaining portion of the judgment enforcing the cession of property and appointing a provisional syndic should he sustained.

The Code, art. 3098, provides: “When the creditors refuse a respite, the cession of property ensues and the proceedings continue as if the cession had been offered in the first instance.”

This is the only warrant for continuing the proceedings, as in case of cession. The law grants to a majority of creditors the option of either granting the cession, or of refusing it and thereby gaining the advantage of a cession of property. They liave not availed themselves of the last alternative. They have not refused the respite and, therefore, under the express terms of the law, the condition upon which the cession ensues has not arisen. The respite is denied by the court, not by reason of the refusal of the creditors to grant it, but by reason of defect in the proceeding having the effect to invalidate it. By ordering the matter to proceed as in case of cession, we should act without warrant of law; and, .moreover, the defective schedule would be as grave an obstacle to the validity of the proceeding as a voluntary surrender or cession as it is to the respite proceeding. Burdon vs. Creditors, 20 Ann., 364.

It is, therefore, ordered, adjudged and decreed that the .judgment appealed from, in so far as it refuses the respite, be affirmed, and that in other respects it be annulled, avoided and reversed; plaintiff and appellant to pay costs of lower court and ax>pellees to pay costs of this appeal.

The Chief Justice took no parr in this case.


text:
    No. 9228.
    The State ex rel. Charles Vial vs. The Judge of the Twenty-Sixth District Court, Parish of St. John the Baptist.
    Ill computing the amount of tlie l>ond to be furnished for a suspensive appeal from a judgment dissolving an injunction with costs, the proper expenses incurred by the sheriif, as consequences of the injunction for the preservation aud cultivation of a sugar plantation under seizure, may be taxed as costs occasioned by the injunction, and must be included in the amount of the bond furnished to be required for such appeal.
    "When the bond tendered does not cover them, a mandamus does not lie to compel the district judge to grant such appeal on such bond.
    A PPLICATION for Mandamus.

      James Legendre and F. B. Lee for the Relator.

      L. DePoorter for the Respondent.
   The opinion of. the Court was delivered by

Bermudez, C. J.

This is an application for a. mandamus. Its object is to compel the ..district judge to grant the relator a suspensive appeal from the judgment dissolving an injunctiou obtained by him, on his furnishing a bond for a stated amount, that ñxed by the judge being represented as excessive and unwarranted.

The amount of the bond tendered is $500, while that required by the judge is $3000.

The relator is the defendant in an executory proceeding. On the sworn averment that time had been allowed him, he obtained an injunction, without bond, which was subsequently dissolved, with costs.

There is no dispute touching the propriety or correctness of the amount of charges claimed by the sheriff for the administration of the sugar plantation seized.

In order to operate as suspensive, the appeal asked could have been granted only on the giving of a bond for a sum exceeding by one-lialf the amount for which the judgment was rendered. C.' P. 575.

This requirement was sanctioned in a case in which the judgment was one of non smt, dissolving an injunction with costs, the Court holding that the judgment having condemned the party to the payment of the costs, the amount of the bond -was properly fixed on that basis. State vs. Judge, 19 L. 171.

In a late case, in which prescription was pleaded to obtain an injunction, without bond, against executory process, after reviewing the jurisprudence the previous Court decided that, in a suspensive appeal from such a judgment, the amount of the appeal bond should exceed by one-half that of the costs which the appellant had been condemned to pay. State vs. Judge, 30 Ann. 314.

In a more recent case the present Court has said that, when an injunction has been dissolved without damages, the rule is that the party cast is required to furnish & bond for costs. Hall vs. Lazarus, 34 Ann. 1210; also 36 Ann. 190.

In neither of these cases was the character, propriety or amount of the costs disputed. The costs were not of the nature of those now under consideration.

The proposition is therefore undenied that, if at the date of the judgment dissolving the injunction with costs the amount of those costs included that of the expenses claimed by the sheriff, the judge was right in refusing the bond which was tendered.

Hence, the question was simply: Whether the expenses incurred by the sheriff for the keeping and administration of the sugar plantation seized do or not form part of the costs which relator was sentenced to pay by the judgment dissolving the injunction.

Costs are the expenses which are incurred in the'prosecution or defense of an action, or any legal process, accruing to court officers, and such disbursements as are allowejL by law, which follow the judgment and which, may be recovered from the losing party. Burrill, Bouvier, Abbott L. D. Vo. Costs; C. P. 551, 552, 661; 9 R. 17; 9 Anu. 310; 30 Ala. 489.

Article 661, C. P., reads:

“ Until the sale, the sheriff is authorized to make such disbursements as are necessary for their preservation, or even for their cultivation and clearing, if the things seized consist of lands and plantations.”

In commenting- upon this article, this Court once said, and it has since been guided accordingly: “There are expenses which the sheriff must necessarily pay himself, or become responsible for, in the exercise of his official duties, and which he has the right to charge for, among his costs. * * * Such are the necessary disbursements for the preservation and keeping of the property under seizure.” Haile vs. Rils, 9 R. 509; also 7 R. 82; 14 L. 62; 2 Ann. 157; 3 Ann. 276; 16 Ann. 233.

Now, if the judgment dissolving the injunction with costs be affirmed on appeal, such disbursements as were necessary and properly incurred by the sheriff having been occasioned by the injunction, will surely be recoverable from the defendant in writ, and should be protected by the bond demandable for a suspensive appeal.

The reason is that the expenses were necessitated by the injunction in the hypothesis wrongfully obtained. The relator cannot be permitted to throw the liability on the plaintiff in writ and endanger the rights of the sheriff by a protracted litigation. It is nothing but just that he should be made to protect both the plaintiff and the sheriff in the bond of appeal. Those expenses or costs appear to be nearly three times larger than the amount of the bond tendered, which the judge was right in declining to accept.

It is therefore decreed that the mandamus asked be refused, and that the restraining order made in limine be rescinded with costs.

Writ refused.


author: Poché, J. Manning, J.

text:
    No. 9290.
    Corporation of Minden vs. Silverstein & Dittmer.
    A legislative grant to a municipal corporation to “ pass all such, ordinances, rules and regulations as tliey may deem necessary for the police and government of the said town,” and “ to have exclusive control of the license and sale of spirituous or intoxicating liq-ours,” implies as a necessary incident thereto the power to pass and enforce an ordinance to prohibit the sale of liquors within corporate limits on Sunday, as a police regulation. The exercise of such power is not amenable to the constitutional inhibtion against the establishmeát of any religion by law, or to any other constitutional limitation to legislation.

      Tlie defense tlnit tlie liquor -was sold "by an employe of the defendant, who is not a clerk or bar-tender, but a mere porter or menial servant, who thus acted beyond the scope of his employment and in disodedieuce of the proprietors’ orders, is good.
    APPEAL from the Mayor’s Court, Town of Minden. Crawford, J.

      J. D. & J. T. Watkins for Plaintiff and Appellee.

      Jas. F. Taylor for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Defendants have taken-an appeal from a judgment inflicting on them a fine of fifteen dollars for the violation of an ordinance of the town .of Minden, which forbids “keepers of saloons or houses where wines or spirituous or malt liquors are kept on sale from selling or giving away the same within the corporate limits on the Sabbath, or between the hours of 12 m. on Saturday night and J2 m. on Sunday night.” “ * *

By way of exception they charged, and on appeal they contend, that the ordinance is illegal and null:

1. Because it is unauthorized by the town charter.

2. Because it conflicts with the Constitution of the State and of the United States.

3. Because the Legislature is powerless to enact any law, or to delegate the power to any municipal corporation, to prohibit the sale of alcoholic or spirituous liquors, the only power being that to regulate the sale of such liquors.

Their exceptions having been overruled, they pleaded a general denial.

First — In support of its power to adopt and enforce the ordinance, plaintiff invokes the following power emanating from the Legislature in the act of incorporation and in an act amending the same :

“To pass all such ordinances, rules and regulations as they may deem necessary for the police and government of the said town.” (Act No. 58 of 1853.)
“Tlia,t the mayor and aldermen, or a majority of them, shall have the exclusive control of the license and sale of spirituous or intoxicating liquors within said corporation.” Act No. 10 of 1871.

\Ve think, and we therefore hold, that the power to regulate the sale of liquors clearly and necessarily implies the power to restrict such sales to certain hours of the day, or to certain days of the week. The exercise of such a power emanates from the police power of the State, and is one of tlie necessary incidents of the delegated power to pass all ordinances, rules and regulations which the town authorities may deem necessary for the police and government of the town. The power to regulate or restrict the inherent rights of a citizen to pursue a legal avocation must not be confounded with the power to prohibit the pursuit of such trade or calling. The distinction has always been recognized in jurisprudence, and has been particularly made in all cases involving the exercise of the very power now under consideration.

Second — The provision of the Constitution which is held by defendants as clashing with the ordinance is that portion of article 4 which declares that “ no law shall be passed respecting an establishment of religion or prohibiting the free exercise thereof.”

Preterinitting any expression of opinion as to the wisdom or expediency of such an ordinance, we see nothing in such a regulation which has the remotest tendency to establish any religion, or to interfere in any way with tíre free exercise of any religious belief.

While it may be that th& reason for selecting Sunday as the day cn which the liquor traffic is prohibited, rests on the universally admitted beliqf in the Christian world that that day is the Sabbath of the Lord, and that it is the day of rest, yet the regulation might well be supported on reasons having no connection with Sunday as a Sabbath,but only as a day on which, under existing habits of the people, largo numbers congregate in towns and pass the day in idleness, teuding to lead to disorder.

The prohibition complained of does not purport even to rest on any religious doctrine or tenet, and it has no pretension to impose any religious observance on any one. It is not more amenable to the prohibition contained in the article of the Constitution than the several provisions of our Code of Practice, which declare that Sunday is a dies non, and that Sunday must not be computed in certain legal delays granted for the performance of certain legal acts.

The argument that under the effect of such a regulation the inherent right of the Jew or of any other religious denomination, to observe his Sabbath, which is the last, instead of the first, day of the week, is impaired or abridged, is not tenable. He is left the absolute and unrestrained freedom of disposing of Saturday, his Sabbath, as he may deem proper, or to worship God according to the dictates of his own conscience. He is not thereby required to observe the Christian Sabbath, and he is not checked in his right to pursue other avocations, but he is merely restrained from pursuiug, on that day, a traffic which in its results may interfere with the absolute right and the undeniable privilege of others to observe that clay in their own manner, with peace and tranquillity, and without interference from anyone or from any source.

While the question is comparatively new in our jurisprudence, it has been the fruitful source of protracted litigation in several of our sister States, by whose courts of last resort, similar provisions, charged as clashing with constitutional restrictions and limitations entirely similar to ours, have been interpreted in the sense which we have herein adopted. In justice to the labors of the distinguished jurists whose opinions we have carefully studied in this connection, we must say that our conclusions in the present controversy have been superinduced by their reasoning, and by a laudable desire to harmonize the jurisprudence of this State with that of the several States of the Union on a question of such vast importance.

Among numerons cases which we have examined with great care, we refer to the following: Commonwealth vs McClanahan, 2 Met. Ky. 3; Frolickstein vs. Mayor of Mobile, 40 Ala. 725; Karnisch vs. Mayor of Atlanta, 44 Ga. 204; City Council vs. Benjamin, 2 Strob. South Carolina, 508; Specht vs. Commonwealth, 8 Pa. 312; Cincinnati vs. Rice, 15 Ohio, 225; State vs. Welch, 36 Conn. 215.

3. The argument in support of the third ground of resistance, which denies that the power to regulate, implies the right to prohibit, the sale of liquors, seems to rest on the provision of Art. 170 of our Constitution, which declares that the regulation of the sale of alcoholic or spirituous liquors is a police regulation. As was shown in our reasoning on the first point, the police power is the very foundation of support for the exercise of the power in question. Our consideration of that point virtually and practically disposes of this ground.

We, therefore, conclude that the ordinance under consideration finds ample support in legislative grant of power to the corporation as an incident of the police power of the State, and that its adoption and 'enforcement do not infringe on any constitutional provision, restriction or limitation.

We must now consider the defence on the facts of the case.

The feature of the cause which grants to this Court jurisdiction over the legal question involved, also vests it with jurisdiction over the facts. That element of jurisdiction, which was left in some doubt by the Constitution of 1868, has been materially elucidated by the provision on this subject in the present Constitution, which reads: “In such cases the appeal on the law and the fact shall be directly from the court in which the case originated to the Supreme Court.” State ex rel. Boutrone vs. Judge, 30 Ann. 415.

The evidence shows that the liquor was sold at the defendants’ store on a Sunday by one of their employees, who was not a clerk or a bartender, but merely a porter, whose duty was to do menial work in the store; that the liquor was sold out of the presence of either of the defendants, who haS. forbidden th eir employees to sell liquors on Sunday; and that the porter was discharged for the reason of his having sold the very glass of liquor which has given rise to this controversy.

As the porter acted in the premises beyond the functions of Ms employment and without the knowledge or consent of the defendants, and as the evidence does not show that they ratified or approved of his act, but as it appears on the contrary that they discharged him on that account, we cannot agree with the mayor in holding them as transgressors of the ordinance under the circumstances as shown by the record. In our opinion, the case is with them on the facts, and for those reasons we must reverse the judgment of the mayor.

The judgment appealed from is therefore reversed and set aside, and the demand of plaintiff is rejected at its costs in both courts.

CONCURRING Opinion.

Manning, J.

I rest my concurrence on the grounds sot forth in State v. Bott, 31 Ann. 663, i. e. that the town-ordinance is a police regulation that the municipal authorities can make for the preservation of public order on a day when its inhabitants are idle from not pursuing their usual vocations, as they might have made Saturday the day of cessation of liquor-selling because on that day country towns are usually flooded by a class that are apt to become disorderly. The same prohibition is often made for election-day and is justified for the same reason, viz that it is a police regulation in the interest of the prablic peace.

Still, there is force in the argument that the obvious reason whjr Sunday was selected as the day of prohibition is because the votaries of a particular religion attach a special sanctity to that day, and as that is the controlling motive of the selection, the prohibition is a regulation for the compulsory observance of a particular religion. Christians would have no difficulty or hesitancy in detecting the motive if the town authorities were Jews, and they had forbade the sale of liquor on Saturday and allowed it on Sunday.

To my mind there is no entirely satisfactory answer to that argument. It is always difficult and often impossible to explain or discover the distinction between a regulation made solely in virtue of the police power and for the preservation of public order alone, and one made for tbe observance of a particular day set apart by the followers of a particular religion for special religious purposes. Each case must therefore rest on its owu facts and circumstances, and these must clearly bring it within the scope of a police regulation or it ought not to be maintained. An oft-quoted writer on Constitutional law well says The laws against the desecration of the Christian Sabbath by labour and sports are not readily defensible by arguments the force of which all would admit. * * * The Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh, may plausibly urge that the law discriminates against his religion, and by compelling him to keep a second sabbath in each week unjustly though indirectly punishes him for his religious belief.” Cooley’s Const. Lim. 476.

Whenever the common-law courts sustain regulations such as this on the ground that Christianity is iu a sense however qualified a part of the common-law, they can have no weight with us. The common-law never prevailed here and the Civil law countenances no such pretension. Even in England where that doctrine originated the Lord Chief Justice lately emphatically said; — “ it is no longer possible to affirm that Christianity is'a part of the law of the land. * * * There was a time when that was so in a sense in which it lias now ceased to be, a time when heretics and misbelievers were punishable for their opinions, and when the most orthodox species of non-conformity excluded a man from public office.” Reg. v. Ramsay and Foote. Eeported in London Times. This overrules with one fell swoop the English decisions of a century and discredits the American decisions that followed them.

This is not a matter of sentiment or of feeling. They who laid the foundations of our government knew well the immense and overshadowing importance of guarding against that particular danger, for no provision of our civil polity requires to be more jealously guarded than that American Magna Charta which forever dissociates religion from the State, and erects an insuperable barrier to the punishment of any man for his religion or for the waut of it.

Bermudez, C. J. concurs in these views.