text:
    No. 2186
    Second Circuit Appeal
    H. P. GUNTER v. D. T. PHILLIPS ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Bills and Notes— Par. 111.
    Where one not a party to a promissory note writes his name across the back of it he . becomes a surety for the maker and not an endorser in the sense of the law-merchant.
    2. Louisiana Digest — Suretyship—Par. 40.
    From the evidence there was not such an extension of time granted the debtor on a note which would have prevented the surety from paying the note and proceeding legally at once to collect. Consequently the surety is liable for the face value of the note.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of Richland, Hon.' John R. McIntosh, Judae.
    This is a suit to collect the face value of a promissory note from surety.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. R. Hodge, of Rayville, attorney for plaintiff, appellee.
    Ellis & Ellis, of Rayville, attorneys for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit on a promissory note signed by D. T. Phillips in favor of H. P. Gunter.

R. E. Phillips wrote his name across the back of said note without being an original party to the note.

Plaintiff seeks to hold R. E. Phillips as a surety on said note, and R. E. Phillips denies liability on the ground that H. P. Gunter extended the time for the payment of said note for twelve months without his knowledge or consent and to his detriment and injury.

There was judgment for plaintiff, holding R. E. Phillips as .surety and he has appealed.

The question to be decided is whether or not an extension of time by the payee of a note to the payor without consideration and without the knowledge or consent of the surety who, though not a party to the note had written his name across the back of it, relieves said party, signing on the back of the note, from his obligation as surety.

OPINION

When one not a party to a promissory note writes his name across the back of it he becomes a surety for the maker, and not an endorser in the sense of the law-merchant.

Story on Promissory Notes, sections 133, 134, 1888.

Randolph on Negotiable Instruments, 829, 831,834. McCausland vs. Lyons, 4 La. Ann. 273; Metropolitan Bank vs. Muller, 50 La. Ann. 1278, 24 South. 295.

The obligation of the surety towards the creditor is to pay him in case the debtor •should not himself satisfy the debt. C. C. 3045.

An extension of time granted by the payee of a promissory note to the payor that does not deprive the surety 'from paying the note and thereby becomiing subbrogated to the rights of the payee and at once proceed against the payor, does not discharge the surety from his liability.

John M. Parker & Co. vs. Guillot, 118 La. 223, 42 South. 782.

The surety, if he think the creditor not sufficiently energetic, may pay the debt and, becoming subrogated to his rights, manage the claim to his own satisfaction.

It is only when the creditor, by giving time to the debtor, deprives the surety of the means of insisting on immediate reimbursement, in case he pay the debt and become subrogated to the creditor’s right, that the surety is discharged.

Louisiana Digest, vol. YI, section 40, title, Suretyship, and authorities there quoted.

The evidence that the surety, R. E. Phillips, claims shows such an extension of time as to relieve him from' his obligation of suretyship, is as follows:

D. T. Phillips, the defendant, pages 2, 3, and 4.

“Q. Now on or about December 1st, 1920, did you secure from Mr. Gunter an extension for the payment of this note?
“A. I did.
“Q. Where were, you?
“A. I was in Delhi.
“Q. But at what place did you talk to Mr. Gunter about it?
“A. I was at the pool room.
“Q. Who, if any one was present?
“A. Why I don’t think there was any one right at the time we were first talking about it, but I think Mr. Wyatt came In about the time we finished talking about it.
“Q. Did you ask Mr. Gunter for an extension on the note?
“A. Yes, sir; I told him I did not have the money to pay it. He gave me another year on it, thought probably things would change; thought maybe I could pay it.
“Q. Did he agree to extend the payment for another year?
“A. Yes, sir.
“Q. What time did Mr. Gunter make that agreement with you,, when was it?
“A. I don’t remember the exact date, Mr. Hodge, but it was somewhere along between the 1st and 15th of December, 1920.
“Q. The note was past due when you asked him for the extension, was it?
“A. The note was past due and he came down to see me about it.
“Q. Now the time you asked for, and he agreed to extend the payment of it, did you pay him anything?
“A. I did not.
“Q. You did not pay him'anything at all for the extension?
“A. No sir, I did not.

Walter Wyatt, a witness for defendant, page .4.

“Q. Mr. Wyatt were you present in Delhi at Mr. D. T. Phillips’ pool room on or about the 1st of December, 1920, during a conversation between Mr. D. T. Phillips and Mr. H. P. Gunter?
“A. I came in about the time, yes sir.
“Q. What did they appear to be discussing?
“A. I never heard what they were discussing. The only thing that I heard was that Mr. Gunter said: "I will let you down easy.”

D. T. Gunter, page 8.

“Q. You have heard Mr. Phillips testify that you agreed to extend the due date of this note for twelve months, is that so?
“A. I have no recollection of the extension. I went there several times and he would always tell me that he was unable to pay it from the last time.

From this evidence as a whole we do not think there was such an extension of time as would have prevented R. E. Phillips from paying the note and then proceeding at once by any legal proceedings against D. T. Phillips, the maker of the note.

Article 1815 of the Civil Code provides:

“A positive promise, that from the manner in which it is made, shows that there was no serious intent to contract, creates no obligation.”

The conversation relied on by the surety as granting an extension of time for pay-' ment took place at a pool room, a place where, as a rule, serious business transactions are not discussed; and was no consideration for the alleged extension.

The District Judge, who heard the witnesses, so construed their testimony, and we think his finding was correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at defendant’s costs.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2196
    Second Circuit Appeal
    MRS. ELLA GREGORY ET AL. v. LOUISIANA CENTRAL LUMBER CO.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— .Par. 154.
    Where, under Act No. 251 of 1920, a mother appointed guardian in Mississippi filed in evidence her appointment containing special authority to sue for minors, she has complied with the law.
    2. Louisiana Digest — Appeal—Par. 625.
    In a suit under the Employers’ Liability Act No. 20 of 1914, the question of fact as to whether injured employee’s fall was caused by intoxication, decided by the trial judge, will not be disturbed, it being clearly correct.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit to recover compensation under Act No. 20 of 1914 for the death of a son and a brother.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this ease Mrs, Ella Gregory and her three minor children file suit against Louisiana Central Lumber Company under the workmen’s compensation law of Louisiana for the death of Pinkney Gregory son of Mrs. Gregory and brother of the three minors — Flossie, Iva and T. J. Gregory — named as co-plaintiff with their mother.

Petitioners claim that Pinkney Gregory came to his death from an injury caused hy a fall which he received while in the discharge of his duties as an employee of defendant as a brakeman on a train of the Louisiana Central Lumber Company.

Defendant denied liability and claimed that deceased was not severely injured hy the fall he received and did not die from the effects of said fall; and in the alternative claimed that said fall» was the direct result of and due to and caused by his intoxication.

Defendant filed an exception to the right of the minors to appear in court through their mother, Mrs. Ella Gregory.

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

Defendant in its brief stresses its exception to the right of minors Flossie, Iva and T. J. Gregory to file this suit.

Plaintiff, Mrs. Gregory, mother of the minors, filed in evidence her appointment in Mississippi as the guardian of these minors containing special authority for her to sue for said minors.

Act No. 251 of 1920 provides that any person who has been or shall be appointed Tutor or Guardian of any minor residing out of the State of Louisiana and who has qualified as such in conformity with the laws of the state or country where the appointment was made, upon his producing satisfactory evidence of his appointment as aforesaid he shall be entitled to sue for and recover any property, rights and credits belonging to the minor in this state.

Under this law, the exception could not properly be sustained.

ON THE MERITS

The first question to be decided is whether or not the defendant died from the effect of injuries received in the fall.

The only testimony on that point is that of Doctors Joyner, Gardner and Kennedy.

Dr. A. J. Joyner, camp physician of the defendant company, testified as to the cause of defendant’s death (page 44):

“Q. Did you make an examination of his body where he complained of the pain?
“A. Yes, sir, but I could not find any external evidence of an injury at that time.
“Q. How many examinations did you make?
“A. Two.
“Q. When did you make the next examination?
“A. After he died.
“Q. In connection with who else did you make the examination?
“A. Dr. Gardner.
“Q. Did you at that time find any evidence of external injury?
“A. On his right hand and right arm.
“Q. What kind of evidence did you find on his right hand and right arm?
“A. A very slight bruise.
“Q. Did you find any evidence of a bruise on his side?
“A. No, sir.”

Dr. E. D. Gardner, head physician and surgeon of defendant company, testified (page 50).

“Q, Did you find any bruises or signs of injury on his body?
“A. I found nothing that I would call bruises, simply dark ■ spots on the right side of the body.
“Q. Did you find the dark spots on the right side of the body?
"A. Yes, sir.
“Q. Doctor, to refresh your memory, I have a report here from yourself'and Dr. Joyner. I will ask you to examine that and state if you saw any dark spots on the body and if so where? •
“A. I found these on the right side of the body, arm, leg and shoulder as well as I remember.
“Q. You didn’t make any notes on it?
“A. No, sir.
“Q. Did you examine him for the purpose of trying to find out what caused his death?
“A. I examined him for the purpose of trying to find out whether he received •any injury.”

Dr. A. E. Kennedy, a physician of McGee, Mississippi, the place, to which the remains of deceased were shipped, testified (page 37):

“Q. When did you last see Pinkie Gregory, the deceased?
“A. He was brought into McGee on April 12th last year — his remains were, and there were some parties thereon to take the body out, and they wanted me to examine the body and I told them to carry him around to the house, and so I took him out of the casket and undressed him and I examined the body there that afternoon— that was the last time I saw him.
“Q. What did you .find in that examination?
“A. I found a considerable bruise on the right side of the body with a small bruise on the leg. It was this bruise on the body that they wanted to know something about. I took my knife and cut down through the flesh to see if the flesh was injured through the body. Well it was an easy matter to see that the bruise reached clear through the flesh.
“Q. You cut into this bruised place?
“A. Yes, sir.
“Q. How did that bruise appear on the surface?
“A. It had more of a greenish appearance than anything else I could compare it to.
“Q. What would you say of the wound you examined in that region of its likelihood of producing death?
“A. It was my opinion that the man died from the injury of the wound over the liver there, which produced a slight break in the liver substance that caused him to bleed to death internally or he died from shock caused by wound over the liver. That word ‘shock’ is one you hear often among surgeohs and know little about — generally result from some unknown cause.
“Q. From the examination thus made of the injury, its location in the body over the liver and gall bladder, what would you say as to its likelihood of causing death?
“A. I would say he died from shock from the injury to the liver.
”Q. Is that considered by you as an expert, as a fatal accident?
“A. Yes, sir. The liver is supplied by the vagarious nerves, incidentally the stomach and supplies a small portion of the kidneys and also the small bowels, and an injury over the liver would give you a reflexion that would put the heart out of business, and the application of the heart to blood supply would be another direct shock to the heart.
“Q. Tell the court what in your judgment produced death?
“A. Shock from injury to the liver from my examination and things I saw and observed in making the examination.”

Crawford Black, L. Z. Fitzgerald, H. M. May, L. E. Estess each testified that the deceased, from the time of the accident to the time of his death continually complained of pain in his right side.

From this testimony we feel certain that deceased died from the effects of the injury received in his right side when he fell at or near the switch which he was attempting to throw.

Defendant insists that deceased’s fall was caused by his intoxication.

On this point Crawford Black, the conductor of the train, testified (pages 3, 6, 7, 12, 14):

“Q. Tell the court how that injury occurred?
“A. Well, we came out with a load of logs and he got off there at the switch to throw the switch he fell — when he stepped off the sway-bar of the train and the train was moving, the sway-bar is three or four feet from the ground and when he stepped off he fell and fell over the head-block of the switch-block.
“Q. What was the nature of the weather that day — good or bad?
“A. It was raining that day.
“Q. Did you, as conductor, order him to throw the switch?
“A. I told him to get off and throw the switch.
“Q. When Mr. Gregory fell, what happened?
“A. When he fell he got up and threw the switch and come walking on back to where I was at I guess thirty or forty yards — may be fifty yeards. Some one said that he fell again, but I didn’t see him because I went in to make the coupling, and when I saw him he was lying on the ground. I asked him what was the matter and he said that when he got off he fell and hurt his side.
“Q. At the time you discovered that Gregory was hurt?
“A. He told me that he was hurt and said that he was hurt in the side. I pulled his shirt open and there was a bruised place on his side.
“Q. Did you see the bruised place on his side?
“A. Yes, I saw it and he told me that when he fell over the head block he hurt it.
“Q. Mr. Black, as conductor on that train did you consider Mr. Gregory able on that day to perform his duties as a brakeman?
“A. Yes, sir.
“Q. Mr. Black,' what was the condition of Gregory at the time he was injured on your train — what was his physical condition?
“A. Mr. Gregory was drinking but he had only taken two drinks of whiskey and I don’t think he was drunk.
“Q. Did he show any signs of drunkenness.
“A. He did not.
“Q. What about his movements?
“A. He did not show any signs of having drunk any whiskey.
“Q. What was his condition as compared to any other time when he was not drinking?
“A. He semed to me that he was as himself — he got on the train with me.
» “Q. Isn’t it a fact that he was vomiting when you carried him to the sand house and that the stuff that he vomited had a very bad whiskey odor?
“A. No, sir, he was not.
“Q. Did Mr. Gregory take drinks oceassionally or not?
“A. No, sir, he hardly ever drank.
“Q. He was not drunk was he — was he or not drunk at the time he fell?
“A. No, sir, he was not.
“Q. Please tell the court how this accident happened, where the deceased got off the train, and everything about it?
“A. He got off the train at the rear end' of the train. We had ten cars of logs and he and I were- riding on the load of logs. I got off to make the coupling and he went on and got off at the switch and when he got off — stepped off the sway-bar, which was three or four feet from the ground, he fell over the head block of the switch block.
“Q. Did he lie there?
“A. He got up and threw the switch and came back towards where I was, and when I came out from coupling the cars he was lying on the ground, and I asked him what was the matter and he said that he fell and hurt himself.”

L. E. Fitzgerald, fireman on the locomotive, testified:

(Page 24):

“Q. He was on the rear end of the train?
“A. Yes, sir.
“Q. What was he doing the last time you saw him before you saw him on the ground?
“A. He was on the load of logs.
“Q. Then the next time you saw him he was lying on the ground?
“A. Yes, sir.
“Q. After you saw him on the ground you didn’t see him walk any more?
“A. After he run the switch I saw him walking up towards the conductor and then I saw him lying down.

(Page 18):

"Q. Tell the court what he said?
. “A. He said he was hurt in the side where he fell across the head block.

(Page 19): •

“Q. Now it has been charged here by the defendant that he was drunk at the time which caused him to fall. Tell the court in your own way whether that was true or not?
“A. He wasn't drunk then.
“Q. Do' you know whether he was drunk at the time he, fell' or not?
“A. No, sir,’ he wasn’t drunk.

(Page 20):

“Q. When you first saw that bottle containing the whiskey, was it full?
“A. Yes, sir.
“Q. There hadn’t been any drunk put of it at that time?
“Á. No, sir.
“Q. Now tell the court plainly, yes or no, was Mr. Gregory drunk at the time he fell and got hurt?
“A. No, sir.
“Q. He was not?
“A. No, sir.
“Q. You were with him assisted with him and had observed him and everything?
“A. Yes, sir:
“Q. Was there anything different to lessen his capacity at this particular time than any other time you observed him on that work?
“A. No, sir.
“Q. During the drinking there did you observe who took the biggest drinks?
“A. I expect I took more than any of them.
"Q. Did it make you drunk?
“A. No, sir.
“Q. Who else drunk out of the bottle besides you and Gregory?
“A. A couple of more fellows drimk out of it.
“Q. How did their drinking in quantity compare with the amount Gregory drunk?
“A. More.
“Q. Neither Mr. Gregory or any of the people drinking with him were intoxicated?
“A. Not that I could tell.
“Q. You know a drunk man when you see him?
“A. Yes, sir.
“Q. If Gregory or either of those men had been drunk you would have known it?
“A. Yes, sir.
“Q. Did their drinking in any way lessen their capacity to discharge .their duties?
“A. No, sir.
“Q. They took two little drinks apiece and went on with their work.
“A. Yes, sir.
“Q. What was the condition of the track at that time, as to whether it was slick, dry or how?
“A. It was wet.

(Page 22):

“Q. Then what was done with him after he went from the sand house?
“A. We carried him to his bed over to the boarding house.
“Q. Who carried him?
“A. I carried him and Red Estess carried him part of the way.
“Q. What was his condition then with reference to being drunk or sober?
“A. He was sober.
“Q. Was he or not suffering?
“A. He was suffering.
“Q. Where did he complain of suffering?
“A. In his side.”

H. M. May, a member of the train crew, testified, page 27.

“Q. Tell the court what his condition was as to sobriety or drunkenness?
“A. He was just complaining of his side.
“Q. Can you tell the way a man talks and the way a man looks whether he is drunk or not?
“A. I don’t think he was drunk. .

(Page 28):

“Q. Did he talk like a sober man?
“A. Yes, sir.

(Page 29):

“Q. Did that stuff that he vomited have a pretty had odor?
“A. It smelled of medicine.”

L. E. Estess, the regular conductor of the log train, but not in charge on the day of the accident, testified, page 31.

“Q. What caused his suffering, if you know?
“A. I don’t know, only what he told me, he told me that he fell and got hurt.
“Q. Did you know on what part of his body he was suffering?
“A. He said it was in his side.

(Page 34):

“Q. When did you next see Gregory?
“A. I saw him the next morning about six o’clock.
“Q. What was his condition when you saw him then?
“A. He said T feel a little better but I am awful sore’.

(Page 35):

“Q. You did carry him part of the way from the sand house over to the boarding house?
“A. Yes, sir; he seemed to be suffering so much that we did not ask him to walk.

(Page 36) :

“Q. Now as a matter of fact you know that he had the appearance of being a drunk man?
“A. No, sir.”

The only testimony in support of defendant’s contention that the deceased was drunk at the time of the accident is the testimony of Dr. J. A. Joyner who gives it as his expert opinion that the deceased was drunk. But Doctor Joyner did not see the deceased until after he was hurt, and bases his opinion on the evidence that appealed to him as an expert.

He testifies, (page 44):

“Q. Could you state whether he was drunk or intoxicated?
“A. I would say that he was under the influence of whiskey.

(Page 46):

“Q. Did you or did- you not smell the odor of ammonia?
“A. Certainly I did.

(Page 47):

“Q. Now you have testified that in your opinion this man was killed by alcoholic poisoning. What is the symptoms of alcoholic poisoning?
“A. Vomiting, weakness of the heart, difficult breathing.
“Q. Did you ever see anybody vomit, doctor, who did not have alcoholic poisoning?
“A. Yes, sir.
“Q. Vomiting is not a sure test then of alcoholic poison?
“A. No, sir.
“Q. You have seen people vomit who never touched liquor? .
“A. Yes, sir.
“Q. That is not an infallible sign of alcoholic poisoning then?
“A. No, sir.
“Q. ■ Neither is nervousness an infallible sign?
“A. No, sir.
“Q. If a man who has had a severe fall or a bruise caused by a piece of timber striking him in the side over and in the region of the liver and gall bladder and the circulation of the heart, would not that make a man sick at the stomach?
“A. Certainly would.
“Q. If these facts be true then the symptoms would be natural under the circumstances of that kind of a hurt?
“A. Yes, sir.
“Q. Isn’t it also a fact, doctor, that in certain injuries affecting the natural vitals it makes a man sick and nervous, even disqualifying him from locomotion even though his legs are sound?
“A. Yes, sir.
“Q. If this man received a severe fall on a piece of timber on which he fell that bruised him through to the abdominal region over the liver, heart and gall bladder, isn’t it a physiological certainty that the man will become very nervous and sick at the stomach?
“A. Yes, sir.”

From all of the above testimony we are unable to say that the judge of the lower court, who knew the witnesses and heard them testify, erred in holding that there was not sufficient evidence to warrant the court in finding that the fall of the deceased was caused by his intoxication.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: ODOM, J.

text:
    No. 2212.
    Second Circuit Appeal.
    JOHN O. CULP v. B. C. BERRY.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact, not being manifestly erroneous, is affirmed.
    Appeal from Tenth Judicial District Court of Louisiana, Parish of Concordia. Hon. N. M. Calhoun, Judge.
    This is a suit to recover a balance on a salary and contract.
    There was a reconventional demand. Judgment for defendant and on reconventional demand. Plaintiff appealed.
    Judgment affirmed.
    Hugh Tullís, of Yidalia, attorney for plaintiff,- appellant.
    Dale, Young & Dale, of Vidalia, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff was employed by defendant in May, 1923, to manage a saw mill owned by defendant and remained in his employ until December of the year. He was to receive as compensation for his services $275.00 per month and his expenses and, in addition, was to receive, according to plaintiff’s interpretation of the contract, a bonus of $1 per thousand feet on all the lumber manufactured, provided there was shown to be a profit of $10 or more per thousand feet.

Plaintiff alleges that during the operation of the mill there was manufactured 1,600,000 feet of lumber on which a profit of more than $10 per thousand feet was made and that therefore defendant is due him $1600.00 on that account, and that he is- due him a balance on salary of $196.00. He brings this suit to recover the aggregate of these amounts.

■ Defendant in answer ' admits that he employed plaintiff at a salary of $275.00 per month and all expenses, but denies that he is now due him anything.

He alleges, with reference to the amount to be paid by him to plaintiff as a bonus in case the operation showed a profit, that he—

“agreed to pay plaintiff the first $1.00 per thousand feet lumber measure in excess of $10.00 profit per thousand feet lumber measure, net to defendant, on this entire operation”.

Defendant alleges that he has some lumber on hand not sold and for that reason does not know just what profit has been made. However, he sets up that the profit is less than $10.00 per thousand feet.

In reconvention, defendant alleges that plaintiff is due him $823.55 for certain advances, for which amount he asks judgment.

There was judgment in the district court rejecting plaintiff’s demand and judgment in reconvention for the defendant for $77.55, from which plaintiff appealed.

We quote the following from the very able and well considered opinion of our brother of the district bench, to wit:

“There is but little difference between the contract as stated by the plaintiff and that as stated by the defendant, except, that the defendant alleges that the bonus of one dollar per thousand feet was to be paid to the plaintiff in the event the net profit per thousand feet sho'uld exceed ten dollars per thonsand feet on the lumber when sold.
“The defendant denies owing the plaintiff anything either on account of the straight salary, or the bonus, and reconvenes for a balance of eight hundred and twenty-three dollars and fifty-five cents as shown by the account sued on annexed to the answer and made a part thereof, denying, of course, that the net profit realized from the lumber sold, which he estimates as sixteen hundred thousand feet, equalled or exceeded ten dollars per thousand feet.
“The chief, if not the only serious dispute between the parties, is as to whether or not a profit of ten dollars, or more per thousand feet, was realized for the lumber, the claim being made for that sold and unsold.
"The defendant testified in support of his reconventional demand and offered in evidence seventy-four invoices, or account sales, showing the grades and quantities of the lumber sold, and the gross receipts for the same, and also offered in evidence the accounts, which were taken from defendant’s books, kept by the plaintiff, the accounts showing the expenses of the saw mill operations in the production, stacking, hauling, shipping, and sale of the lumber, which included all other expenses, such as interest, discount, commissions, taxes, rent on saw mill site, lumber inspection, scaling, & etc.
“The defendant testified that there had been shipped and sold 1,180,000 feet; and that there were still unsold on the mill yards and at the railroad station at Progmore, 359,260 feet.
“Taking the gross receipts for the 1,180,-000 feet sold as a basis for calculation, and deducting therefrom the total expense incurred on that amount of lumber, and by dividing the total net receipts by the 1,180,000 feet, the defendant arrived at a net profit of less than ten dollars per thousand feet for the lumber which had been sold.
"Mr. Mulvihill, an expert accountant, who testified for the plaintiff, basing his calculations on the 1,180,000 feet which the defendant testified had been sold, and by similar mathematical processes as those employed by the defendant, arrived at a net profit per thousand feet for the lumber which had been sold of more than fifteen dollars per thousand feet.
“Both the defendant and Mr. Mulvihill are in error as to their estimate of the lumber sold. This arises from error ■ in adding the different amounts of the lumber sold as shown on the account sales.
“They each made other errors in their calculations, as was discovered by the court. Although the defendant testified that there had been 1,180,000 feet sold, the court is satisfied there was no intention on the part of either defendant or Mr. Mulvihill to wilfully misstate the facts, but the mistake of both was due entirely to error in addition.
“It would serve no useful purpose to go into detail as to the calculations made by the defendant and Mr. Mulvihill.
“The court after going over the matter most carefully some three or four different times, found that the total amount of the lumber sold was 1,122,230 feet, and that the gross proceeds of this amount of lumber were $54,061.52. The court found by calculations carefully made and gone over several times to verify their correctness that the total gross expense incurred on account of this 1,122,230 feet was $45,-781.10, which the court ■ deducted from the total gross receipts of the 1,122,230 feet sold,, finding the total net receipts from the lumber sold to be $8,280.42, which divided by 1,122,230, the amount sold, gave as a quotient the net profits per thousand feet to be $7.37.
“Hence, the court finds, that there is nothing due the plaintiff on account of the bonus or. commissions claimed by him.
“The account serving as a basis for the reconventional demand shows a balance of $823.55 in favor of the defendant, but this should be credited by one month’s salary of $275.00 which does not appear as a credit on the account, which the defendant admits was omitted through mistake. There should also be deducted from the above balance the following debit items which have now been abandoned by the defendant: Purchase price of Ford car, $205.00; July payment on Chevrolet car, $36.00; Aug., Sept., Oct., Nov., and Dec. payments on Chevrolet car, of $46.00 each. This will give the total amount to be deducted from the above debit balance of $823.55 to be $746.00, leaving a balance due the defendant by the plaintiff of $77.55.”

As will be seen by reference to the above opinion of the district judge, who went very thoroughly into the facts of the case, both on the main and on the reconventional demand, as is stated by him the serious and about the only dispute between these litigants is whether a profit of $10.00 or more per thousand feet was made on the lumber manufactured, and to determine that question all of the bills, invoices, figures and estimates submitted by both sides must be gone over.

The district judge says he went over them most carefully three or four times, and he states clearly his findings. We have been furnished pencil memoranda showing his figures and notes covering several pages which show how careful and painstaking he was and the vast amount of time and labor he must have spent in arriving at his conclusion.

If it were not for the fact that counsel for plaintiff insisted in oral argument before the court and in briefs filed, that the district judge in his calculation of the profit made failed to take into account the lumber on hand and unsold we would be disposed to adopt the opinion of the district judge and make it our own without further comment; but in view of learned counsel’s insistence that the judge of the lower court made the mistake of leaving out of his calculatiofi any consideration whatever of the unsold lumber, we have gone over the invoices showing the amount of' lumber sold and the price thereof, the testimony of all the witnesses as to the costs of manufacturing and marketing the lumber, the testimony of Mr. Elliott, showing the amount of lumber in the yard and on the railroad unsold; and in fact all the testimony in the case, and we are thoroughly convinced that the profit on the lumber did not amount to $10 per thousand. We are further convinced that counsel is in error when he states that the district judge failed to take into consideration the unsold lumber.

Counsel for plaintiff says in brief:

“But, the judge made a very serious error himself in his figures. He entirely failed to take into account anything but the lumber sold, whereas that unsold must necessarily be calculated in arriving at the profit made on all the lumber manufactured which is the basis of plaintiff’s claim.”

He then takes the figures found by the court and attempts to show that according to those figures there was a profit of $14.91 per thousand made on the operation, the figures which he uses being as follows :

The amount of lumber sold was 1,122,230 feet.

The gross proceeds of the sale were $54,061.52.

Dividing the gross proceeds by the amount of lumber sold shows an average price of lumber sold of $48.25 per thousand.

The amount of lumber unsold is 359,260 feet.

Figuring that the unsold lumber is worth as much as that which was sold and would bring the same price if placed upon the market, he multiplies the number of feet unsold by $48.25 and gets gross proceeds amounting to $17,334.29, the value of the unsold lumber.

He deducts from this amount the cost of hauling, and marketing this lumber, amounting to $3,524.00, leaving a net balance of $13,810.25. This, he says, is the net value of the unsold lumber.

The court found that the net profit on the lumber sold was $8,280.42, which amount counsel adds to what he says is the net value of the unsold lumber, making a total of $22,090.71, which he concludes is the net profit on all the lumber manufactured, both sold and unsold.

Counsel takes the figures of the court showing that there had been manufactured altogether 1,481,490 feet of lumber. Dividing the net profit of $22,090.71 by the number of feet of lumber manufactured gets a Quotient of $14.91, which, counsel says, represents the net profits realized on all the lumber manufactured.

But counsel has made a glaring error in his figuring. He figures correctly that the average price of the lumber sold was $48.25 per thousand and that the unsold lumber at that’price is worth $17,334.29; he deducts the cost of hauling and marketing the unsold lumber, amounting to $3,524.00, leaving the net value of the unsold lumber $13,810.29; but he fails to deduct the cost of manufacturing this lumber, and therein is his error.

In order to arrive at the profit made the cost of the manufacture must, of course, be deducted from the gross price. Counsel fails to take into consideration the cost of manufacturing this unsold lumber, and it will therefore be seen that his figures showing a net profit of $14.92 per thousand are erroneous.

We quote from counsel’s brief as follows:

“Net proceeds of lumber unsold $13,810.29
“And net proceeds of lumber “sold ________________________________________________ 8,280.42
“Net proceeds of lumber sold and “unsold ____________________________________________$22,090.71”

Taking these figures as correct, it would appear that more profit was made on the 359,260 feet of lumber unsold than there was made on the 1,122,230 feet sold.

These figures clearly show the error into which learned counsel for plaintiff has fallen.

With reference to the cost of manufacturing the lumber, we note that Mr. Culp, the plaintiff, says as a witness that it cost about $21.00 per thousand feet to manufacture this lumber, which did not include, he said, all the expense of operation, and he enumerated certain expenses which were not included in those figures. He also says that he and Mr. Berry in figuring in a general way as to the cost of manufacturing the lumber concluded that it would be about $30.00 per thousand. However, this was only their estimate.

The district judge found that the expense of manufacturing the lumber, that which was sold and that unsold, was $21.92 per thousand, and in view of plaintiff’s testimony that his estimate of $21.00 per thousand did not include all the expenses, the court was probably correct in its figures. At $21.92 per thousand it would cost $7,874.97 to manufacture 359,260 feet of lumber. The gross value of the 359,-260 feet of unsold lumber figured at $48.25 per thousand is $17,334.29.

In order to arrive at the net value of this lumber there must be deducted the sum of $3,524.00, the expense of hauling the lumber to the railroad and of putting it on the market, and also $7,874.97, the cost of manufacturing it.

These two amounts deducted from its gross value leaves a balance of $5,935.32, the net value of the lumber unsold.

The court found that the net proceeds of the lumber sold was $8,280.42. These two added, make a net profit on the lumber sold and unsold" of $14,215.74.

According to the figures, there was lumber sold and unsold amounting to 1,479,494 feet.

From these figures showing the gross amount of lumber manufactured and the net ■ amount of profit, it will be readily seen that the net profit on the lumber amounted to less than $10.00 per thousand.

We do not submit the last named figures as showing the exact profit which was made on the lumber manufactured during the time that Mr. Culp was superintending the mill. Those figures were used rather to show the error into which counsel for plaintiff has fallen in his calculation. As stated already, we have carefully gone over all the testimony in the case. We have ascertained the amount of lumber sold from the invoices submitted by Mr. Berry and we have ascertained the price of the same from said invoices. We took the testimony of Mr. Elliott as to the amount of lumber on hand unsold. We have gone over the figures of all the witnesses showing the cost of manufacturing the lumber, the commissions which were to be paid on the sale .of it and, in fact, every item of expense which we think properly chargeable as an item of expense in the manufacture of this lumber, and have reached the conclusion, independently of the district judge’s opinion, that there was a profit of less than $10.00 per thousand made on this lumber. Therefore, the plaintiff can recover nothing from that source.

We have also carefully considered the testimony with reference to defendant’s reconventional demand and are satisfied that the the judge of the district court made no error in his finding.

For the reasons assigned, the judgment of the district court is affirmed with costs.


author: CARVER, J.

text:
    No. 2217
    Second Circuit Appeal
    J. G. SANDERS v. FRANK VARINO
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Municipalities—Par. 225. Automobiles — Par. 4.
    In a collision between a truck and an auto, where the truck was speeding and collided with the auto at a street intersection, the truck driver was negligent and responsible for the damages, the driver of the auto not being contibutorily negligent.
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred. M. Odom, Judge.
    This is a suit for damages to an automobile due to a collision with a truck.
    Stubbs, Theus, Grisham & Thompson, and A. Wolf, of Monroe, attorneys for defendant, appellant.
    There was judgment for plaintiff and d& fendant appealed.
    Judgment affirmed.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintifff, appellee.
   CARVER, J.

Defendant appealed from a judgment awarding plaintiff $1200.00 damages for injuries to his Dodge sedan automobile, which was struck by a Ford delivery truck belonging to defendant and driven by his son, and employee, Tony Varino.

The accident occurred on a bright, dry, day in August, 1922, at about 4:30 o’clock, p. m. at the intersection of Pine and Third streets in Monroe.

Neither of these streets was then a “right-of-way” street, wherefore the rights of all automobile drivers thereon were equal.

A city ordinance limited the speed of automobiles in the fire district to ten miles an hour and outside the fire district to fifteen miles an hour. The proof does not show whether the intersection of Pine and Third streets is within or without the fire district.

Plaintiff was on the north side, which was the proper side, ' of Pine street going west at a moderate rate of speed. On ■approaching Third street, at a distance of about twenty-five feet therefrom, plaintiff says he looked up and down Third street being able to see in the direction from which Varino was coming about half a block, and seeing no car near enough to menace him, proceeded to cross Third street; and that when about the middle of same he was run into by defendant’s truck which was being driven by Tony Varino, on Third street going north at a rapid and excessive rate of speed. The body of the car was demolished beyond possibility of repair and there were some other injuries inflicted on it.

The proof shows that a new body would cost $1200.00.

Plaintiff testifies that when he got about to the sidewalk of Third street on Pine he saw a black streak out of the corner of his eye — this being the Varino truck and that he was too close to Third street to escape a collision by stopping so he accelerated his speed in the hope of getting far enough across Third street to escape.

The proof shows that when Varino was something like 100 feet from the intersection he blew his horn. Varino applied his brakes when about 22 feet from the Sanders car but skidded that distance when he struck it and knocked or pushed it over and then skidded a few feet beyond.

Some effort was ma'de to prove that Varino’s car was only going about 15 or 18 miles an hour; but the testimony shows that a car driven at that speed, with efficient brakes, the street being dry, as was Third street on that day, could have been stopped in much less than 20 feet.

We are convinced, therefore, that he was driving at a much greater rate of speed than 15 miles an hour, and that this was the proximate cause o,f the collision. It was not sufficient for him to blow his horn as a warning, trusting to plaintiff, whose rights were equal to his own, to get out of his way.

The proof does not show, in our opinion, any negligence on the part of plaintiff. He was not obliged to stop before entering Third street, and did all that prudence demanded in looking up and down Third street and making sure that the crossing was clear before attempting to make it. When the danger became apparent, too, he seems to have done the prudent thing in speeding up his automobile, which seemed to afford the only chance of escape.

There is no dispute as to the cost of a new body or as to the necessity therefor.

An exception of no cause of action was filed by defendant and referred to the merits.

We are not informed as to the ground of this exception which, in our opinion, is without merit.

The petition states that the damage was done setting forth the amount' thereof, and that it was caused by the reckless driving and excessive speed of the Ford truck, and that plaintiff was careful and free from negligence.

This constitutes, we think, a cause of action.

The judgment of the lower court is therefore affirmed.

Odom, Judge recused.


text:
    No. 2218
    Second Circuit Appeal
    THRIFT OIL AND GAS COMPANY, INC., v. THERMATOMIC CARBON COMPANY
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 42, 52, 58.
    The meaning of the clause, “Thrift agrees to sell and hereby does sell to the Trustee, and the Trustee agrees to buy and hereby does buy from Thrift for a period of ten (10) years from March 1st, 1922,” in a contract is that Trustee is to begin' paying for gas delivered from March 1st, 1922. The construction placed on contract by the actions of plaintiff and defendant shows this correct.
    (Civil Code, Art. 1956. Editor’s note.)
    2. — Louisiana Digest — Act of God — Par. 1.
    Where defendant shut down the plant for the purpose of putting in new parts and changing other parts which were not suited for the work at hand, the shutdown was not an accident or cause beyond the control of the defendant.
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred. M. Odom, Judge.
    This is a suit to recover for gas contracted for by defendant.
    There was judgment for plaintiff and .defendant appealed.
    Judgment affirmed.
    George Gunby, of Monroe, attorney for plaintiff, appellee.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit by Thrift Oil & Gas Company, Inc., to recover judgment for $1860.00 against Thermatomic Carbon Company for gas contracted for by defendant from the gas wells of plaintiff for the months of July and August, 1923, under a contract reading, in part, as follows:

“This agreement made this 16th day of December, 1921, between Thrift Oil & Gas Company, Inc., a corporation organized under the laws of Louisiana, having its principal office in the City of Monroe, State of Louisiana, (hereinafter referred to as Thrift), party of the first part, and E. N. Gillespie, of Freeport, Pennsylvania, as Trustee (hereinafter referred to as the Trustee), party of the second part:
First: Thrift agrees to sell and hereby does sell to the Trustee and the Trustee agrees to buy and hereby does buy from Thrift for a period of ten (10) years from March 1st, 1922, all the gas which may be required for the operation of a carbon plant to be erected on or near the above mentioned Smith lease up to a monthly average of five million (5,000,000) cubic feet of gas per day, at and for the price of three (3)cents per thousand cubic feet, measured at eight (8) ounce pressure above atmosphere. The Trustee monthly shall pay for a daily average of one million (1,000,000) cubic feet of gas per day whether or not gas to that amount has been taken by the above mentioned plant, unless the plant is shut down on account of accidents or other causes beyond the control of its owners. (Exclusive of market conditions.) In such event the Trustee shall not be required to pay for any gas not used and if the shutdown should extend beyond a period of three months, Thrift 'shall have the right to sell gas to other parties until such time as the plant resumes operations.”

Defendant denied liability for the minimum of gas contract for the months of July and August, 1923, and asked, in re-convention, for $5520.00 paid plaintiff by defendant through error for the minimum of gas provided for in the contract during the months of March, April, May, June, July and August, 1922, during which time thé plant was being constructed and before the plant had begun to use the minimum of gas provided in the contract.

On these issues the case went to trial. There was judgment in the lower court for the plaintiff for the full amount sued for and rejecting defendant’s reconventional demand. Defendant appealed.

OPINION

In this case there are two questions presented for determination.

I.

Was the date at which defendant was to begin paying for the minimum if 1,000,000 cubic feet of gas per day under the contract to begin March 1, 1922, or to begin when the plant was completed and ready to begin operations?

The terms of the contract appear to us to be plain and subject to but one construction. It says:

“Thrift agrees to sell and hereby does sell to the Trustee and the Trustee agrees to buy and hereby does buy from Thrift for a period of ten (10) years from March 1st, 1922. * * * ”

From this language we are certain that the parties to the contract understood at the time they made it that defendant was to ' begin paying for the minimum of 1,000,000 cubic feet of gas per day on March 1, 1922, whether it used that amount of gas per day or not.

If there could be any doubt as to how the parties to the contract understood it, that doubt was removed by the construction the plaintiff and defendant placed on it immediately after the contract was entered into, for plaintiff began to pay defendant from March 1, 1922, for the minimum of gas provided for in the contract and paid monthly for said amount during the time its plant was being constructed.

Undoubtedly the parties to. the contract construed it to mean that the minimum of gas was to begin to be paid for from March 1st, 1922, and we concur in their construction of the contract.

Article 1956 of the Civil Code provides:

“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

II.

The second question to be decided is, was defendant’s carbon plant shut down during the month of July and August, 1923, on account of accident or other causes beyond the control of its owner.

The contract provides:

“The Trustee monthly shall pay for a daily average of one million (1,000.000) cubic feet of gas per day whether or not gas to that amount has been taken by the above mentioned plant,. unless the plant is shut down on account of accident or other causes beyond the control of its owners.”

In interpretating the exception in the clause of the contract above quoted, we must read the entire clause and interpret it as a whole.

In the case of American Bridge Company vs. Glenmore District Company, (Ky.) 107 S. W. 279, the court said:

“Under the familiar rule of ejusdem generis the general language following the specific enunciation of the causes- which prevented the appellant from being responsible for non-performance of its contract within the stipulated time must be limited to include causes similar to those set out; and, under this rule, we think it clear that the failure of the appellant to provide material with which to carry into effect its contract was not a circumstance beyond its reasonable control. None of the specified causes for non-responsibility could possibly be controlled by foresight on the part of appellant; but foresight would undoubtedly suggest, before making a contract so urgent in its nature as the one before us, that the material with which it was to be carried into effect should have been secured in advance, and therefore tlie failure to exercise these cannot be said to , be a cause for non-fulfillment beyond the reasonable control of the appellant.

In Michel vs. American Central Insurance Co., 44 N. Y. Supp. 832, the court said:

“In a statute or in a contract where general words follow specific words, the general words are not construed to mean things of different kinds from those described by the specific words, but denote things of the same kind.”

In Lehman vs. M. L. & T. R. Co., 115 La. 1, 4, 38 South. 873, the court said:

“The words ‘accidental or uncontrollable events’ known to the Civil Code Law of Louisiana, are equivalent of ‘cas fortuit ou force majeure’ of the French law and denote that which happens by a cause which we cannot resist, something which can neither be foreseen nor prevented.”

Under these authorities we must determine from the evidence whether or not the plant was shut down “on account of accident or other causes beyond the control of its owners”.

E, N. Florsheim testified (pages 10 and 11) regarding discussions that took place at and before the time the contract was signed, as follows:

“Q. Was that not, to your knowledge, ' and experiment?
“A. No, sir.
“Q. Had there ever been any carbon plant in operation ■ on that process?
“A. Mr. Uhlinger told us in Pittsburg there was.
“Q. Was that not the experimental plant in order to see how it would work?
“A. No, he assured us if we put this gas in his line and after they were once running there would be no trouble.
“Q. Don’t you know as a matter of fact that there was no plant at Pittsburg?
“A. No I do not. Took his word for ik
“Q. You don’t mean to tell us he had a carbon plan in Pittsburg?
“A. No, but he told us to tie up our acreage, two gas wells, and when once the gas was turned in the line and once started —after he got the plant going, he would never stop as far as the plant was concerned.
. “Q. He assured you that the experiment had been worked out in laboratory form and would work out in practice?
' "A. He didn’t tell us about the laboratory; he said he had a small plant in Pittsburg hooked up and we would never be worried about the plant being shut down on account of its being an experiment.” ■

C. C. Boardman testified (pages 23, 26):

“Q. When did you become manager of the -Sterlington Plant?
“A. I came down the last of February, 1923, and took over the plant on the 15th of February.
“Q. Was that just after Mr. Hodges left?
“A. Yes, sir.
“Q. Are you an engineer, Mr. Boardman?
“A. Yes, sir.
“Q. These different pieces of machinery-pipes, conveyors, sifters, etc., which you testify' were replaced; last summer and fall, were they the original pieces of machinery and equipment that were placed in the plant when it was constructed — first constructed?
“A. Yes, substantially the original stuff. Some small fittings might have been renewed during that time. It was the original.
“Q. Was this machinery and the equipment that was replaced worn out?
“A. Not worn out; some of it had been twisted, due to not being strong enough.
“Q. Whether it was replaced because it was old and worn out or whether the reason for replacing it with other machinery and equipment was not rather because it had been found not to meet the requirements of the process that you were using?
“A. It didn’t meet the requirements of the process.
“Q. That is, that machinery and equipment which you replaced it with was all of a different design and larger in size and better met the requirements of your process than the machinery and equipment which was originally installed?
“A. That’s substantially it. The new sifters handled the work all right, the old one didn’t; the new conveyors handled the work all right, the old ones didn’t.
“Q. There was no break down of the plant or machinery in June, 1925, was there?
"A. Not that you would call a break down. On the 22nd we had to shut down break downs are constantly occurring and of course grow more aggravated as you go on. We had already decided to make this shut down and get new apparatus and get it in.
“Q. The work you did between the latter part of June and the middle of December, 1923, was not in the nature of repairs but was more of a complete overhauling and renewing and rebuilding of your plant was it?
“A. That’s essentially it, yes sir.
“Q. Because the old plant and old equipment could not properly manufacture carbon with the process that you were using?
“A. Well, it is a distinction there. The carbon is manufactured in the furnaces; that process is all right, nothing wrong there; its after the carbon is made, in the handling of it, the apparatus it is put in, the sifters to prepare it to be put in sacks that • was insufficient and couldn’t do the work. That’s the part of the plant we had to tear out.
“Q. How many binds did you replace?
“A. We did not replace the binds. We just changed the way the plates were put on top.
“Q. Would it not have been possible for you to have operated one or more units of your plant while the other units were being replaced?
“A. Only by shutting down for a week and making connections into a single' collector and carrying the carbon by hand. The collectors are eight in a row from a common conveyor. To operate a single one would, take a lot of temporary connections and handling of carbon by hand; sifting it by hand.
. “Q. I don’t recall — did you say all of the furnaces were relined?
“A. No, just one completely relined.
“Q. Had it not been for the changing of the conveyors and other carbon handling apparatus you would have continued to operate the rest of the furnaces while the one was being repaired?
“A. Yes. In normal operation any one furnace can be repaired without affecting the balance of the plant.
“Q. And the work done on the engines in the power house didn’t necessitate a shut down over this long period of time either?
“A. That’s just an ordinary maintenance job.
“Q. Probably take only a few days time?
“A. Yes. While we were down we had a master mechanic on that job to get it in good shape to run.
“Cj. Then the five and a half months shut down .was occasioned solely by the reconstrction, replacement and enlargement of the machinery for handling the carbon black after it came from the furnaces?
“A. Yes, sir.
“Q. And its replacement and enlargement was caused by reason of the fact that the old equipment which you had was not of the proper design for handling the product — design and size?
“A. It was not the right size and it was not the right design, except there was not any data to go on in designing that sort of equipment. We had to go through all the processes once to see what we did have to have.
“Q. I believe you testified that you operated from September, ■ of 1922, until June of 1923, without making any changes?
“A. Well, some of the equipment was not in operation. We were doing by hand what equipment was supposed to do all that time. The center conveyor had failed completely to function like it should, and so we handled that carbon by hand.
“Q. Some of the new equipment which was added was to take the place of any do away with manual labor that had formerly been employed by the plant?
“A. Yes.
“Q. And it was because of faults and defects in the plant as originally designed and constructed, that the changes were made?
“A. Well, that depends •• somewhat on conditions. At the time the plant was designed and erected we put in the best equipment recommended by makers of that equipment. After the company installed that sort of equipment they found out it would not work. ' They took the best they had. Now the equipment we have is larger — stuff we worked out ourselves.”

From this evidence we are convinced that the defendant after representing to the plaintiff that it had worked out a plant that was beyond the experimental stage and was entirely practicable, built its plant and placed therein certain parts that were not suitable and would not do the work for which said parts were intended, and that because of these parts not being suitable to do the work intended for them defendant found it necessary to shut down the plant for the purpose of putting in new parts and of changing other parts; and this it proceeded' to do without saying a word to plaintiff.

This work, in our opinion, was not an accident or cause beyond the control of the defendant.

Reverting to Civil Code, section 1956.

Defendant paid the minimum amount for gas provided in the contract from March 1, 1922, while the plant was being built, and as the defendant considered the contract to mean that he should pay the minimum amount provided for in the contract for gas during the time the plant was being built, for a like reason we think it must be held for the minimum amount of gas provided in the contract during the time the plant was shut down for the adjustment and rearrangement of certain parts that should have gone in when the plant was ¿being built.

For the above reasons, it is ordered, adjudged and decreed that the judgment of the trial court be affirmed.


text:
    No. 2219
    Second Circuit Appeal
    W. RILEY AGERTON v. CORNELIUS FUTCH
    (May 9, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 18, 23, 62.
    Where a petition states that a sum is due because petitioner was compelled to pay an amount for and on behalf of defendant on a judgment states a cause of action and the exception is overruled.
    2. Louisiana Digest — Sales—Par. 178, 259.
    Where A, in order to save land sold by B, is forced to pay a judgment due by B, A can recover the amount from B.

      3. Louisiana Digest — Appeal—Par. 625.
    Where the judgment of the trial court on matters of fact is clearly correct it is affirmed.
    Appeal from Fourth Judicial • District Court of Louisiana, Parish of Union. Hon.: S. L. Digby, Judge.
    This is a suit, coupled with an attachment, to collect money paid by Agerton in order to save the land sold him by Futch.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Elder & Everett, of Parmerville, attorneys for plaintiff, appellee.
    G. H. Holloway, of Parmerville, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit in which the plaintiff seeks to recover judgment for $481.00 against defendant for the amount paid by him on a judgment due by defendant in order to relieve land that defendant had sold plaintiff from a judgment due by defendant to Monroe Grocery Company,

Defendant filed an exception of no cause of action, which was overruled.

In answer, defendant pleaded that he had paid the plaintiff the amount claimed by him.

Hence, the questions presented are the exception of no cause of action, the right of plaintiff to the writ of attachment, and whether or not defendant has paid plaintiff . the amount claimed.

ON THE EXCEPTION OF NO CAUSE OF ACTION

Plaintiff alleges in his petition that defendant is due him the sum of $481.00; that said indebtedness arises by reason of petitioner being compelled to pay said amount for and on behalf of defendant Cornelius Futch, on a judgment rendered in a suit entitled Monroe Grocery Com- . pany vs. Cornelius Futch et al., and that = said amount is past due and unpaid notwithstanding amicable demand.

These allegations being taken for true for the purposes of the trial of the exception, the exception was properly overruled.

The evidence fully justified, we think, the issuance of the writ of attachment.

Defendant admits selling his real estate to his brother just after the attorney for the Monroe Grocery Company wrote him a letter relative to the Monroe Grocery Company’s claim and that the same property was by his brother resold to him after the judgment of Monroe Grocery Company was settled.

Defendant also admits drawing all of his money out of the Marion bank just after he received the letter referred to.

All of which, taken in connection with all the other evidence relative to defendant’s acts, was sufficient, we think, to sustain the writ of attachment.

This brings us to the plea of payment tendered by the defendant. Defendant swears that the amount due by him to plaintiff was paid in a settlement between plaintiff and defendant and that plaintiff agreed that if defendant would turn over to him $500.00 of the amount he was receiving on a loan from the Federal Land Bank and would make him a mineral deed to one-sixteenth royalty on certain land that the plaintiff would pay‘the balance of the Monroe Grocery Company’s judgment amounting to $481.00 and would accept the mineral deed in full settlement for the amount plaintiff was paying on the Monroe Grocery Company judgment due by defendant.

This contention of defendant is positively denied by plaintiff,’ and the fact that plaintiff had to pay on the Monroe Grocery Company’s judgment $481.00 and that the recital in the mineral deed re. cites $25.00 as the consideration, tends to corroborate the plaintiff.

Defendant seeks to bolster up his contention by the testimony of J. N. Mill-stead (pages 2 and 3):

“Q. What conversation, if any, did you have with Mr. Riley Agerton with reference to the indebtedness due him by Cornelius Futch and' which he is suing for in this suit?
. “A. Not much to amount to anything.
“Q. Pleas,e state what Mr. Agerton told you in this connection?
“A. Nothing much. He told me about the time he and Mr. Futch went into a settlement that him and Mr. Futch had settled, what it was I can’t say.”
* * * *

By the court:

‘‘Q. What did he say was settled?
“A. Just the trouble between them was settled.
* * * *
“Q. Didn’t he tell you that some time he expected to collect the rest of the money due him?
“A. I faintly recollect he did. I won’t be positive.”

Jewell Millstead testified, pages 11 and 12:

“Q. Will you state again what you heard Mr. Agerton say?
“A. I heard him say they had the trouble settled.
* * * *
“Q. Did you hear him say anything about whether he expected to collect the rest of the money Mr. Futch owed him or not?
“A. It seems that I, have, I won’t be positive.”

Mr. Perkins testified, pages 11 and 12:

“Q. What conversation, if any, did you ever have with Mr. Agerton, the plaintiff, with reference to an indebtedness due him by the defendant, Mr. Futch?
“A. Mr. Agerton told me that they had settled, that he had paid part of it and Mr. Futch paid the balance of it and that they had a settlement.
* * * *
“Q. He said he had to pay some of this himself, didn’t he?
“A. Yes, sir.
‘‘Q. Said it wasn’t his debt, didn’t he?
“A. He didn’t tell me whether it was his debt or not. He' said he had to pay off some of it and Mr. Futch paid part.”

John Ballard testified, pages 13 and 14:

“Q. What, if anything, did he say about accepting the $500 in cash in full settlement?
“A. He didn’t say anything.
* * * *
“Q. Please state whether or not Mr. Agerton ever instructed you to inform Mr. Futch that he would accept this proposition as full settlement for the debt?
“A. No, sir, only he was going to get his money somewhere.
* * * *
“Q. Did Mr. Agerton tell you that they were going to have their money?
“A. Yes, sir. We were sitting by the board pile.
* * * *
“Q. He insisted he was going to have his money?
“A. Yes, sir. He said he didn’t owe it and it wasn’t just.
* * * *
“Q. Mr. Agerton told you he wasn’t going to lose this money, didn’t he?
“A. He did. Mr. Futch agreed that Mr. Agerton didn’t owe it and that he was out $900.00.”

This testimony, taken as a whole, 'we think, rather corroborates the plaintiff’s contention that in order to save the land sold him by defendant he was forced to pay on a judgment due by defendant to Monroe Grocery Company $481.00 and that he was in some way at some time going to collect same from Futch.

It certainly cannot be held to mean tbat Agerton was intending to abandon any claim he had against Eutch for the recovery of the money he had to pay for him on the judgment of the Monroe Grocery Company.

The question of payment is one of fact and the learned judge who heard the evidence and observed the witnesses testify decided that the defendant had not proved his plea of payment, and we think the evidence in the case abundantly sustains the correctness of his judgment.

For these reasons the judgment appealed from is affirmed.


text:
    No. 2234.
    Second Circuit Appeal.
    DAN SENN v. LINDSEY MERCANTILE COMPANY, INCORPORATED, ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 41, 42.
    Where the plaintiff failed to prove that the damage caused by a fire was due to the negligence of the defendant or his agents, plaintiff cannot recover.
    (Civil Code, Articles 2315, 2317.)
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union. Hon. S. L. Digby, Judge.
    This is a suit for damages caused by burning woodland.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. E. Dawkins, of Farmerville, attorney for plaintiff, appellant.
    J. W. Elder, of Farmerville, attorney, for defendants, appellees.
   ODOM, J.

Plaintiff in this case alleges that just prior to July 24, 1923, the defendants, Lindsey Mercantile Company, Incorporated, and G. E. Lindsey, through their agents and employees, set fire to certain woodland belonging to him and burned the fence around said woodland and around other lands adjoining, destroying 87,000 rails, the timber in which rails he values at $174.00, and that he had to split and haul new rails to replace those burned, which labor is well worth $182.70, and that due to the burning of the fence around his pasture he lost the use thereof, which damaged him to the extent of $120.00. He alleges that the agents and employees of the defendants were careless and negligent in permitting his property to burn and that the fire and damage to him could have been prevented if the agents and employees of the defendant had used ordinary care and diligence.

An exception of no cause of action was filed to the petition and was referred to the merits by the court.

Defendants answered, admitting the corporate capacity of Lindsey Mercantile Company, Incorporated, and denied all the other allegations. There was judgment rejecting plaintiff’s demand and dismissing his suit, from which he appealed.

OPINION.

Counsel for plaintiff quotes the following from Corpus Juris:

“One who wilfully sets fire is civilly liable for damages for all the consequences which may directly or naturally result from it.”

Corpus Juris, vol. 26, page 584.

He might have gone further and stated that—

• “A person is liable to the penalty for permitting fire to escape from his own land although he does not do so wilfully.”

Same authority.

The law applicable to a case of this kind is found in Civil Code, 2315, which reads in part as follows:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

And article 2317'which reads in part as follows:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable.”

In order to establish liability in a case of this kind it is necessary to show that the fire was set by the defendant person or by someone for whom he is responsible and that the setting of the fire was either wilful or careless and negligent; or if set on defendant’s own premises and permitted to spread 'to plaintiff’s land, that it escaped through the fault, carelessness or negligence of defendant or those for whom he is responsible.

The weakness of plaintiff’s case arises from the fact that he failed to show that the fire which damaged him was set by defendant or any one for whom he was responsible; and even if it be conceded that the fire was set on defendant’s premises and spread to the property of the plaintiff, it is not shown that it was permitted to spread through the fault, carelessness, or negligence, of defendant’s employees.

Plaintiff owns a tract of land partly timbered, which was enclosed by a wire fence. Defendant owned cultivated land adjoining same on the south but separated from it by a public road. In the summer of 1923 or possibly in the spring of that year, defendant had laborers go on his land for the purpose of terracing it. During terracing defendant’s land plaintiff’s land was burned over. But there is no evidence whatever that defendant was in the vicinity of the land during the time the work was going on, nor is there any evidence that any of the laborers employed by defendant set fire to plaintiff’s woods. But it seems that during the time this work was going on a stump on defendant’s side of the road some twenty or thirty feet therefrom was seen burning; but there is no testimony that any of these laborers or the foreman in charge of the work set it afire. Nor is it shown that the fire from this stump set the fire over on plaintiff’s land. This stump was out in an open field and there is testimony in the record that the land between this stump and the road had been plowed and that there was no grass or other combustible substance on the ground and, therefore, if the fire which burned plaintiff’s property was set from this stump it was set by sparks.

However, on this point, plaintiff says there was grass between the stump and the road and that it burned up to the road.

Counsel cites the case of Lemann Co. vs. Texas & Pacific Ry. Co., 128 La. 1089, 55 South. 684, in which it was held that where the fire started immediately or very soon after the passing of a train, and there was no fire on the premises before, and there was no other apparent cause of the fire, the presumption is that the fire was set by sparks from the passing train; and he urges that the court should assume that the fire which burned his property spread from the stump or was set by sparks from it. But any such presumption is destroyed in this case by the fact that Mr. Rockett, a share tenant on defendant’s land, put out some fire southeast of and adjoining plaintiff’s land several days previous and there were stumps and trees still burning at the time the fire broke out on plaintiff’s land, and he says that the fire could easily have been set from those trees. No one was able to state just where the fire started on plaintiff’s land. The land just across the road from this burned stump was burned over. but no one • knows that the fire started there.

As stated already, no one knows but .those employed by defendant set fire to the stump. It is in the record and not disputed that at the time the fire was burning on plaintiff’s land Mr. Pickens, who seems to have been in charge Of the work for the defendant, and his hands were working a half-mile from the scene.

Holding, as we do, that the evidence does not show that the fire which destroyed plaintiff’s property was set by defendant or the employees for whom he is responsible, nothing need be said, of course, on any other branch of the case.

.The judgment of the lower court is affirmed with costs.


text:
    No. 2248
    Second Circuit Appeal
    NORMAN McDonald v. HARRIS GAS & OIL CO., INC., ET AL.
    (May 9, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Builders and Buildings — Par. 7.
    The- signer as surety on a building contract bond is liable even though he received no compensation.
    (C. C. Art. 3039. Editor’s note.)
    2. Louisiana Digest — Pleading—Par. 113.
    The defendant is not called upon to defend against matters not contained in the pleadings. Such evidence should be excluded as irrelevant.
    3. Louisiana Digest — Builders and Buildings — Par. 7.
    The surety on a bond should not be allowed to relieve himself of his attorney’s fees at the expense of those creditors for ' whose benefit the bond was given.
    4: Louisiana Digest — Courts—.Par. 128.
    In an appeal to the Court of Appeal of a concursus proceeding, the jurisdictional amount involved is the fund to be distributed and not the amount in dispute, under Constitution of Louisiana of 1921, ■Article VII, Section 29.
    5. Louisiana Digest — Builders and Buildings — Par. 7; Laws — Par. 72.
    Where the owner in a building contract does not require a 100% bond, Act 139 of 1922 does not apply but Act 229 of 1916 does.
    Appeal from Fourth Judicial District Court of Louisiana, Párish of Lincoln. Hon. S. L. Digby, Judge.
    This is a concursus proceeding under a building contract secured with bond.
    There was judgment distributing fund and plaintiff appealed.
    Judgment affirmed with minor correction.
    Dhu Thompson, of Ruston, attorney for Normand McDonald and North Louisiana Brick Co.
    W. E. McBride, of. Ruston, attorney for Harris Gas & Oil Co., Inc.
    Barksdale & Barksdale, of Ruston, attorneys for Ruston Oil Mill & Fertilizer Co.
    S. D. Pearce, attorney for Ruston Hard-, ware & Furniture Co. and Home Heating & Plumbing Co.
    Burt Lomax, attorney for G. M. Lomax Lumber Co.
   REYNOLDS, J.

This is a concursus proceeding.

E. C. Evans contracted to build a filling station for Harris Gas & Oil Co., Ipc., for $2350.00.

Normand McDonald signed E. C. Evans’ bond guaranteeing faithful performance of the contract.

The contract was completed and Harris Gas & Oil Co., Inc., filed acceptance of the work.

Within the time prescribed by law various furnishers of material, claiming special privileges on the land and improvements, filed claims aggregating $1891.27.

The plaintiff herein, as surety on the contractor’s bond for $1175.00, deposited that amount in the registry of the court in a concursus.

The privilege creditors filed and established in court their privilege -claims to the amount of $1891.27.

Defendant, Harris Gas & Oil Co., Inc., in its answer prays that plaintiff’s demand for attorney’s fees be rejected and that it be given judgment against plaintiff for ten per cent of the amount of the bond, as attorney’s fees, and for judgment against E. C. Evans for the amount of any excess that may be found due for labor and material over and above the amount of said bond.

On these issues the case was tried and there was judgment in favor of the plaintiff for all he claimed in his petition, except the $50.00 asked as attorney’s fees, and ordering that the $1175.00 deposited by the plaintiff with the clerk be paid out pro tanto on the privilege claims, which claims were allowed in the "sum of $1891.27.

There was judgment by default against E. C. Evans in favor of .plaintiff for $1175.00 and in favor of the defendant, Harris Gas and Oil Co., Inc., for $1891.27, less $1175.00.

From this judgment both plaintiff and defendant have appealed.

ON PLAINTIFF’S APPEAL

Plaintiff urges in his brief that there was no consideration paid to him as surety on the bond.

This question as to whether there is a difference between the obligation of one who signs a bond as surety without compensation and one who receives compensation for his signature as surety is fully discussed in the case of Wells vs. Fidelity & Deposit Co., 146 La. 185, 83 South. 448, where the court says:

“Civil Code, Article 3039, says: * * * “Suretyship cannot be presumed; it ought to be expressed, and it is to be restrained within the limits intended by the contract.
“The article is significant because exception, since the obligations of all contracts are presumably restrained within the limits thus mentioned. None of the articles distinguish between compensated and uncompensated sureties, and we find no authority vested in the courts for making such distinction. Moreover, during the seventy-five years which have elapsed since the original adoption of the present Code, a jurisprudence, interpretative of the articles mentioned, has been established by this court, and up to a very recent period there is not the slightest recognition of any such distinction.”

Hence, plaintiff’s contention that he received no compensation for signing the contractor's bond does not in any way relieve him from liability.

The second contention of the plaintiff is that the trial court did plaintiff a great damage ‘ by sustaining an objection to plaintiff's proving what part of the material went on to the ground on which the filling station was built after the contractor was paid fifty per cent of the contract price.

There was no allegation in plaintiff’s petition under which such testimony -was relevant, and we think the trial court ruled correctly in sustaining the objection to said testimony.

Plaintiff insists that in spite of the ruling of the ’ trial court excluding evidence as to when the material that went into the filling station was placed on the ground, it is shown by the dates of the various sworn-to bills for material that more than half of such material had not been placed on the ground at the time the defendant paid the contractor fifty per cent of the amount of the contract.

Be that as it may, the fact remains that the evidence referred to was immaterial under the pleadings, for plaintiff did not complain on that ground and he does not now claim that he was actually injured thereby.

The evidence shows that when fifty per cent of the contract price was paid by the defendant to the contractor, there had been placed on the ground brick, lumber, lime, cemqnt, sand, and that practically all of the cement work had been done all around the walls.

It is not contended by plaintiff that this fifty per cent of the contract price paid to the contractor was in any sense prejudicial to the plaintiff’s rights.

The defendant is not called upon to defend against matters not contained in the pleadings, and the court would not be justified in deciding the case against defendant upon issues not covered by plaintiff’s petition.

Plaintiff asks in his petition for $50.00 .attorney’s fees, but in his brief he does not cite us to any provision of the law ■allowing the same where the concursus is in a case where the bond furnished was only for fifty per cent of the contract price. To allow plaintiff his attorney’s fees would diminish the security of the privilege creditors for whose protection the bond was given, and clearly the surety on the bond should not be allowed to relieve hmself of his' attorney’s fees at the expense of those creditors for whose benefit the bond was given.

Dunlap vs. Whitmer, 137 La. 792, 69 South. 189.

The relief sought by plaintiff in his appeal must be denied.

ON DEFENDANT’S APPEAL

Defendant in its brief asks that the appeal be dismissed on the ground that there is only $50.00 in dispute, since plaintiff received judgment for all he asked except the attorney’s fees of $50.00.

Article VII, section 29, of the Constitution of 1921 gives this court jurisdiction wherever the amount involved exceeds $100.00.

The amount involved in this- case is the fund to be distributed, and hence this court has jurisdiction.

Defendant further claims that the Ruston Hardware & Furniture Co. and the W. S. Wilhite Lumber Co. and the Ruston Manufacturing Co. did not serve on the owner sworn itemized statements of the accounts they filed in the mortgage records, and that hence they failed to establish their privileges.

The owner did not require a 100% bond 'and hence Act 139 of 1922 does not apply. The privilege creditors for material furnished come under the provisions of Act 229 of 1916.

Defendant insists that there is an error of $32.00 in the amount allowed the Ruston Hardware & Furniture Company, and on page 90 it is so admitted. Mr. Payne says the bill now is $1051.91, less a credit of $32.00, which credit was not allowed in the judgment.

For the above reasons the judgment of the lower court is affirmed in all its parts, except insofar as the judgment in favor of the Ruston Hardware & Furniture Company is concerned, and that judgment .is amended so as to reduce the amount thereof from $1051.91 to $1019.91, and as thus amended it is affirmed. All costs in this case to be paid as provided in the original judgment, except the costs of this appeal, which are to be paid by the Ruston Hardware & Furniture Company.