author: ODOM, J.

text:
    No. 3027
    Second Circuit
    BURROWS v. ARIZOLA PETROLEUM COMPANY
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 160 j.
    The burden of proof in Workmen’s Compensation cases, under Act 20 of 1914, as amended, is on the plaintiff to prove injuries and disability complained of and that they were caused by the accident.
    2. Louisiana Digest — Master and Servant Par. 159, 159 a.
    Under paragraph (e) -of Subsection 1 of Section 8 of Act 20 of 1914, as amended by Act 216 of 1924, the Workmen’s Compensation Act, where the hearing of an employee is permanently impaired as result of the accident but he is not totally disabled thereby, compensation allowed at the rate of $10.00 per week for 100 weeks, each payment bearing 5% interest from date due.
    3. Louisiana Digest — Master and Servant Par. 160 d, 160 j.
    Medical expenses under Act 20 of 1914, as amended, the Workmen’s Compensation Act, must be proven before they can be allowed by the court.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. P. E. Jones, Judge.
    Action by Prank A. Burrows against Arizola Petroleum Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    Hawthorn & Stafford, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Compensation Act. Plaintiff alleges that he was employed as a common laborer for the defendant company at a daily wage of $5.40, working full time, and that on July 14, 1926, he was injured by a boiler explosion, as a result of which he is now totally and permanently disabled to do work of a reasonable character; and he asks compensation at $20.00 per week for 400 weeks.

Defendant, in answer, admitted the employment, admitted that plaintiff was injured to some extent by the explosion, but denied that he was totally disabled, and alleged that he is now able to work, and in the alternative alleged that if the court should find and hold that plaintiff did receive injuries to his ears, as alleged, his compensation should be fixed under paragraph (e) of Subsection 1 of Section 8 of the Act, not to exceed 100 weeks.

The lower court found that plaintiff’s earning capacity had been reduced to one-third of what it was before the accident, and, as he was earning $35.00 per week, the court gave him compensation at $10.00 per week for not to exceed 300 weeks.

Defendant appealed, and plaintiff moved to amend the judgment by increasing the amount to $20.00 per week for 400 weeks as prayed for.

OPINION.

While plaintiff was at work a “pop valve” on one of the boilers got out of fix and, while he was trying to repair it, it blew- out, causing an explosion which knocked him to the ground. The explosion was near his head and was so great that plaintiff was considerably shocked, his ears were injured, and as a result his hearing is impaired.

He alleged and testified that his whole nervous system was wrecked, that his side is partially paralyzed, and that he is now permanently disabled. But he failed to prove his disability to labor. His testimony on that point is not supported by that of any witness but, on the contrary, is disproved by circumstances and by the testimony of two physicians who examined him in January after he was injured in July. These physicians testified that they found his hearing somewhat impaired but that in their opinion he was able to carry on his work. They found that he was suffering from hernia but said that was not brought on by the accident.

As stated, plaintiff was injured on July 14, 1926. He consulted attorneys on October 4th following, on which date it seems -the petition was drawn and his affidavit attached.

The suit was filed on October 30th and was set for trial on November 23rd. After answer filed on that date, plaintiff amended his petition, alleging that in addition to the injuries alleged in his original petition he was then suffering from double hernia which had been caused by the accident. This, it seems, was the first intimation any one had that he was complaining of hernia. In his original petition there was no mention of a hernia and it is admitted that when he consulted his attorneys about bringing the suit he said nothing to them about hernia. If he ever complained to any one about the hernia being brought on by the accident, the record fails to disclose it. Immediately after the accident he consulted Dr. Patterson who, presumably, lives in LaSalle parish, where the accident occurred. Dr. Patterson sent him to Dr. Wolf at Haynesville. Dr. Wolf sent him to Shreveport, where he was examined and treated by Dr. Oden, Dr. Kerlin, and one other physician.

In all, five physicians examined him immediately after the accident and all prior to the date on which he filed his original petition. Dr. Oden specializes in diseases and disorders of the ear. Dr. Wolf, of Haynesville, sent plaintiff to Dr. Oden to be treated for his ear trouble. Dr. Oden sent him to-Dr. Young, who was not in the city at the time. But he was examined and treated by Dr. Kerlin and another physician whose name plaintiff could not call.

Notwithstanding these five physicians examined and treated plaintiff, he did not call any of them to testify as to what they found as to his physical condition following the accident. From the fact that Dr. Oden specialized in diseases of the ear, the presumption is that Dr. Wolf thought plaintiff’s injury was to the ears, and the fact that Dr. Oden sent him to Dr. Young, who is a nerve specialist, indicates that Dr. Oden thought his nerves were disordered. None of these physicians are surgeons and none of them, so far as the testimony shows or indicates, treat hernia cases.

The burden in cases of this kind is on plaintiff to make out his ease.

If plaintiff’s hernia was brought on by the accident, the burden was upon him to show that. Traumatic hernia, according to physicians, is exceedingly painful and produces immediate disability. If plaintiff was so injured by the accident as to produce immediate hernia, or if his abdominal walls were so injured or weakened as to cause hernia to develop gradually, there would have been indications of that fact from the moment of the accident; as, to say the least, there would have been indications of the hernia or of its gradual development prior to the date on which he consulted counsel three months later and during the time he was consulting physicians. But he said nothing to his attorney about it, nor, so far as the testimony shows, did he mention the hernia to the physicians or to anyone else prior to November 23rd, the day on which the case was to be tried. If he had mentioned an injury to his side or groin to the physicians, that fact was within his knowledge and the proof of it was at hand. The fact that he made no such proof indicates that he was unable to do so. The physicians could have been called or their testimony could have been taken out of court as is the practice in cases of this kind.

When the case was called for trial, plaintiff offered only his own testimony. Leave was granted defendant to take testimony out of court to show plaintiff’s condition. In January following plaintiff was examined by Dr. McBride and Dr. Peters in Alexandria. They found that he had hernia, but gave it as their opinion that it was not produced by the trauma but was congenital, and further testified that if it had been produced or brought on by the accident the effect would have been immediate disability and intense pain.

Plaintiff testified that he continued to work for at least a part of two days after the accident. He further admitted that some time after the accident he wrote defendant asking that he be allowed to go back to work, which indicates that he thought he was able to work, and Dr. McBride and Dr. Peters, the only physicians called, say he is able to work.

Under the testimony adduced and under all the circumstances we must reject pi tiff’s theory that the hernia was produced by the accident; and from the testimony, that is the only condition which would produce disability.

Plaintiff’s hearing is impaired, and that condition was produced by the accident; but, according to the physicians, that impairment is not sufficient to produce disability to do work of a reasonable character.

They say he can hear and understand ordinary conversation across a room. Plaintiff testified that if one person at a time talked to him he could understand, but if more than one talked, he got confused. There is no indication that he experienced any difficulty in hearing questions propounded to him in court.

Our conclusion, therefore, is that the testimony fails to show that plaintiff has suffered any disability to do work of a reasonable character.

But it does show, and in fact defendant admits, that his ears were injured by the accident and as a result his hearing is impaired.

Under paragraph (e) of Subsection 1 of Section 8 of the act where the usefulness of a member or any physical function is seriously, permanently impaired, the court may allow such compensation as is reasonable, not exceeding 65% of wages for a period of 100 weeks. In view of the compensation allowed by the act in casds of specific injuries mentioned and in proportion thereto, we think an allowance of $10.00 per week for 100 weeks will do justice to both parties.

Under the act an injured employee is entitled to medical and surgical expenses not exceeding $250.00. But unless he spends or becomes obligated for that much he cannot recover that amount. In any event, he cannot recover more than he proves.

The testimony shows that defendant’s manager told plaintiff to get the best physicians he could find to treat him and that defendant would pay the bills. He did get treatment but he had not paid them, did not know the amount of their charges. They did not render any bills to him. As they made no claims, the presumption, is that defendant paid the bills.

But plaintiff did prove that he incurred certain expenses in going to the physicians which he paid. He is entitled to recover these expenses, amounting to $36.00.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to allow plaintiff compensation at $10.00 per week for a period of 100 weeks under paragraph (e) of Subsection 1 of Section 8 of Act No. 20 of 1914, as finally amended by Act No. 216 of 1924, the payments to begin on July 21, 1926, one week after the accident, each payment to bear interest at 5% per annum after the due date. And further ordered that defendant pay plaintiff $36.00 for expenses incurred, and all costs. And, as thus amended, the judgment is affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3207
    Second Circuit
    WIMBISH v. LOWERY
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles — Par. 4b, 4d.
    Where defendant’s car failed to observe a city ordinance by stopping before crossing a right-of-way street and came upon an intersection in such a manner that it was impossible for the driver of a car on the right-of-way street to avoid the collision, negligence of the defendant is shown and plaintiff can recover.
    Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    Action by W. L. Wimbish against Joe Lowery.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edward Barnette, of Shreveport, attorney for plaintiff, appellee.
    Dimick & Hamilton, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This suit arises from a collision between automobiles at a street intersection in the city of Shreveport, and each of the drivers claims that the other was negligent and each of the owners of the cars claims damages of the other, and defendant appeals from a judgment in favor of the plaintiff.

The plaintiff’s car was being driven by his wife and was proceeding south along Southern Avenue which, under the traffic ordinances, is a right-of-way street, and defendant’s' car was being driven, by his minor son west along Kings Highway, which intersects Southern Avenue at right angles, and the collision occurred to the southeast of the center of the intersection.

The evidence is conflicting; however, it is conclusively established that the driver of defendant’s car did not stop the car driven by him before driving onto the intersection, as required by the ordinance, and although he and the young man who was in the car with him state that he reduced the speed of the ear before driving onto the intersection, and that the car driven by plaintiff’s wife was at that time a sufficient distance away to have enabled him to have cleared the intersection had plaintiff’s wife exercised ordinary care, we find that the evidence shows that the interval between the time defendant’s son drove onto the intersection and the collision was so short that the collision would not have occurred had the driver of defendant’s car complied with the law and brought his car to a stop.

Certainly, then, the violation of the ordinance was at least a contributing cause to the accident, and defendant could not recover, and while plaintiff should not recover if the negligence of the driver of his car contributed to the accident, and the fact of his driver being on a right-of-way street did not absolve her of exercising ordinary care, but the evidence showing that the driver of defendant’s car had violated an ordinance, and that the collision would not have occurred had he observed it, we think the plaintiff should recover unless it clearly appears that the driver of his car was also guilty of negligence contributing to the collision (Bianchi vs. Mussachi, 1 La. App. 291; Tolliver vs. Yellow Cab Co., 3 La. App. 278; Young vs. Smythe, 6 La. App. 52; Liddel vs. Post, 6 La. App. 72).

The only evidence tending to show negligence on the part of the driver of plaintiff’s car was that relative to the distance at which plaintiff’s car was from the intersection at the time defendant’s car was driven thereon, but the evidence does not show at what distance the ear could have been brought to a stop or under such control as to avoid the collision, and we cannot infer that she was driving at an unlawful rate of speed or that she was not maintaining a lookout in the face of her testimony to the contrary; and besides she testified that defendant’s car came upon the intersection in such close proximity to her car that it was impossible to avoid the collision, and we find that the evidence fails to establish any negligence on the part of the driver of plaintiff’s car, and the judgment appealed from is affirmed.


text:
    No. 3136
    Second Circuit
    BLAUSHILD v. ROCKHOLD, ET ALS.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 86, 87, 100; Builders and Building — Par. 30.
    Where a suspensive condition is not expressed in the written instrument but is implied from the nature of the contract and the presumed intent of the parties, it should be interpreted as a contract with suspensive condition.
    2. Louisiana Digest — Obligations—Par. 90; Evidence — Par. 242.
    Parol proof may properly be admitted to show that a written instrument was delivered on a suspensive condition under Articles 2021, 2027, 2037 and 2043 of the Civil Code.
    3. Louisiana Digest — Obligations—Par. 97, 100.
    Under Civil Code, Article 2043, an obligation contracted on a suspensive condition cannot be executed until after the event.
    4. Louisiana Digest — Pleading—Par. 12, 14.

      Where fraud and a plea that defendants were only conditionally bound were both contained in defendant’s answer, the pleader is entitled to have his plea considered and passed upon as a whole. If one plea fails, he may rely on the other.
    5. Louisiana Digest — Builders and Buildings — Par. 3, 10.
    Where, under the terms of the agreement between contractor and sub-contractor, the sub-contractor was to notify the architect and obtain his approval as soon as practicable after signing, the sub-contractor was not bound by the contract until approval of the architect was obtained.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Sam Blaushild against S. J. Rockhold, et als.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. L. Walker, of Ruston, attorney.
    Barksdale, Warren & McBride, of Ruston, attorneys for plaintiff, appellant.
    William J. Hammon, of Jonesboro, attorney for defendant, appellee.
   ODOM, J.

The defendants are general contractors and, on December 14, 1926, entered into a contract with the Jackson Parish School Board to erect a. public school building at Jonesboro in that parish according to plans and specifications made by J. W. ¡Smith, architect, of Monroe, Louisiana.

They subsequently entered into a contract with the plaintiff, Blaushild, to furnish all material and install the heating and plumbing system in said school building at the stipulated price of $7700.00.

The contract between plaintiff and defendants is in writing 'and is attached to and made part of the petition. It provides that plaintiff shall

“furnish all material of every kind and nature whatsoever, and all labor, and to erect and install, and complete all of the heating and plumbing system to be erected and installed in the new brick school building now under construction by the general contractor by and under contract with Jackson Parish School Board, all in accordance with the drawing, plans and specifications of J. W. Smith, architect, of Monroe, Louisiana, a copy of which is now on file in the recorder’s office of Jackson parish, Louisiana, and which copy is made a part hereof, * *

Alleging that defendants breached the contract and refused to permit him to do the work and that he would have made a net profit of $1700.00 if he had been allowed to do the work under the contract, he brought this suit against defendant for that amount.

Defendant, in - answer, admitted the execution of the document alleged to be the contract between them and plaintiff but plead, in substance, that it was signed and delivered with the distinct agreement and understanding that it should have no effect and should not be binding on them unless and until approved by the architect, J. W. Smith; that under the specifications, made a part of the contract, no sub-contractors could be employed without the approval and sanction of the architect, all of which was within the knowledge of plaintiff who was familiar with said specifications; and defendants further alleged that plaintiff made false and fraudulent representations as to his standing as a contractor with said architect which induced them to sign the instrument.

The lower court rejected plaintiff’s demands and he has appealed.

OPINION

The substance of the defense is that the contract with plaintiff was only a conditional obligation or one entered into with a suspensive condition, to-wit: that J. W. Smith, the architect, would approve the contract; that the condition upon which the contract depended to make it valid and binding failed because the architect refused to approve it, and that therefore defendant is not bound.

We have no difficulty in reaching the conclusion that the contract was entered into with a suspensive condition, and while that condition is not expressed in the written instrument itself, it is implied from the nature of the contract and the presumed intent of the parties.

The parties to the contract well knew that the principal contractor could not sublet any of the work on the building to anyone who was not satisfactory to the architect.

Plaintiff was familiar with the general rule that the architect must approve all subcontracts. Besides this, the contract was entered into with special reference to the specifications, which were made a part of it.

These specifications provided in specific terms that the contractor should not employ any sub-contractor—

“that the architect may within a reasonable time object to as incompetent or unfit”.

Blaushild was familiar with these specifications. He had a copy of them and said he had read them before the contract was signed. He knew that he could not do the work without the sanction of the architect and he knew that the contract entered into could not ripen into a valid and binding obligation except upon condition that the architect would approve it.

He was not only informed by the specifications but he knew from general custom and the nature of the contract that the approval of the architect was a condition precedent to his doing the work. His knowledge of that fact is doubly manifest by his conduct. After the document was signed he sought and obtained prices o: material and labor for installing the plant. After doing so he was informed by defendant that Smith, the architect, had notified defendant, the Parish School Board and the building committee, that he was not acceptable as a sub-contractor. He at once, it. seems, sought advice of counsel, who told him to see the architect. He went to Monroe and saw Smith and sought his approval; to no avail. In the meantime, as stated, he had obtained prices on material and labor to install the plant.

The material man on numerous occasions urged him to place the order for the material, which he refused to do notwithstanding he was told that the price of material fluctuated and that it was necessary that the order be placed so that the material man might order the goods out at the current price. His asserted reason for not doing so was that he did not need them at that time. We are not impressed by his testimony on that point. We think his conduct in consulting counsel as to his rights and his refusal to place the order for the material indicate that he had in mind all the while that he had no contract which he could enforce, it not having been approved by the architect, and we think his counsel was probably of the same opinion for he advised a consultation with Smith, the architect. If he liad thought and his counsel had advised him that he had a binding contract he would have stood upon it without further ado.

In addition to this, S. J. Roekhold, one of the defendants, testified that plaintiff went to see him at Jonesboro and sought the contract to install the plumbing and heating plant in the building and submitted a price, that he told Blaushild that Smith, the architect, would have to be consulted concerning all sub-contracts, and that the plaintiff then informed him that—

“he would be perfectly satisfactory to Mr. Smith and I told Mr. Blaushild that under those conditions, under the condition that he would see Mr. Smith and get his ‘O.K.’ on the contract, we would draw up the contract that day.”

On page 59 of the testimony he said:

“My agreement with Mr. Blaushild was this, we were drawing the contract that day with the understanding that he would see Mr. Smith before it went on file and get his ‘O.K.’ on it and put it on record and go ahead with the work.”'

On being asked what was done at the time, and if ^he signed the contract, and whether the whole transaction took but a few minutes, he said:

“I did with the statement from Mr. Blaushild that he would see Mr. Smith immediately and get his ‘O.K.’ on the contract and then would have it .recorded, and then it would, be valid.”

Sam Nomey, one of the defendants, testified that he was present when the document was signed and heard what was said and heard S. J. Rockhold tell Blaushild that if Smith failed to approve it, it would not be binding upon anybody, and that Blaushild said:

“If Smith don’t ‘O.K.’ it, it will be all right, it won’t be binding on either one.”

Henry Rockhold, son and employee of defendant, S. J. Rockhold, testified that plaintiff appeared at Jonesboro, where the building was being erected, and asked to be allowed to bid on the heating and plumbing, that he was shown the plans and specifications and after about three hours submitted his bid, and that his father, S. J. Rockhold, told him that he could make no contract without the approval of the architect, and that plaintiff said that would be all right, that Smith would approve it as he had worked under Smith and that his work was satisfactory, that plaintiff was in a hurry to get the contract signed so that he could order his material.

Blaushild testified that the question of Smith’s approval was brought up, but he denied that he agreed that the contract would have no binding effect without the architect’s approval. However, the preponderance of the evidence shows that he did.

Henry Rockhold testified that when the contract was signed he notified Smith, the architect, and that Smith at once registered his objection upon the ground that plaintiff was incompetent, and that later plaintiff was notified of Smith’s disapproval.

Smith, as a witness, said that he had refused to approve the contract, and that plaintiff was incompetent, and not acceptable to him.

Counsel for plaintiff objected to the introduction of parol evidence on the ground that such evidence is not admissible to alter, contradict or vary the terms of a written instrument.

That rule, so well established, is not applicable in this case. The testimony was not offered to vary or contradict the written contract, but to show a distinct contemporaneous collateral agreement between the parties at the time the instrument was signed that it should not be binding unless approved by the architect— in other words, to show that it was executed under a suspensive condition.

“It has become the settled rule in a majority of states that a written contract, whether under seal or not, may, by parol, be proved to have been delivered to the obligee upon a parol condition that it was not to become binding until the happening of a future event, and may be avoided upon the further proof that such event has not occurred. Accordingly it may be shown by parol evidence that a note, unconditional in terms, was conditionally delivered, and placed in the hands of the payee with the distinct understanding that it was not to be operative, or become a binding obligation, until the happening of some event.”

10 R. C. L. 1055.

Also:

“Parol evidence is admissible to show that a writing, in the form of a contract, never became operative as a contract. In other words, a separate agreement, constituting a condition precedent to the attaching of any obligation under the writing, may be shown by parol evidence.”

10 R. C. L., Section 249, page 1053.

See Section 244, page 1051, same volume. Whittaker et al. vs. Lane, 104 S. E. 252; 11 A. L. R. 1157.

In a note following the cited case in 11 A. L. R., at page 1174, it is stated:

“It is a view generally accepted that the rule which excludes parol evidence to modify a written contract does not, at least as regards contracts not under seal, prevent its introduction to show that a written instrument was delivered on condition.”

We think the testimony was properly admitted for the purpose offered.

The defendants having agreed to employ plaintiff on condition that the architect would approve such employment and the architect having refused to approve the contract, defendants are not bound.

“Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; * * *.”

C. C. 2021.

“Suspensive conditions are either express or implied. * * *; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.”

C. C. 2027.

“Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.”

C. C. 2037.

An obligation contracted on a suspensive condition cannot be executed until after the event.

C. C. 2043.

A policy of insurance containing a' clause that it should not become binding on the company unless countersigned and approved by a certain agent is not binding if not countersigned.

Hardie vs. Insurance Co., 29 La. Ann. 242.

“A promise may be conditional, that is, the performance may be due, not immediately, but only after the lapse of time or the happening of a future event. In such cases as a rule the condition precedent must be exactly performed or fulfilled before the promise can be enforced.”

9 Cyc. 615.

“A promise may be conditional upon the act or will of a third person. A frequent example of such promises occurs in the case of building contracts where the approval of the architect or some third person is required before payment is due.”

9 Cyc. 617.

6 R. C. L. 692 (12).

Counsel for plaintiff insist that the defense is based solely upon the allegation of fraud.

Defendants allege that plaintiff practiced fraud upon them in order to get the contract signed.

Plaintiff’s counsel contend that fraud was not proved and that therefore the defense falls.

But defendants did not rest their case upon the allegation of fraud alone. The substance of the answer is that defendants were only conditionally bound, and that their liability was made to .depend upon the approval of Smith, the architect, and that his approval was never obtained but specifically declined.

A pleader ¿s entitled to have his plea considered and passed upon as a whole.

Davies vs. Bierce, 114 La. 663, 38 So. 488.

Counsel further contend that it was defendants’ duty to notify the architect and get his consent before contracting with plaintiff, and that not having obtained such approval before the contract was signed they are bound.

The specifications, Article 36, provide that the contractor — ■

“as soon as practicable after the signature of the contract, shall notify the architect in writing of the names of sub-contractors proposed for the principal parts of the work and for such others as the architect may direct and shall not employ any that the architect may within a reasonable time object to as incompetent or unfit.”

In this case, they did precisely what this specification says they should do. After reaching an agreement with plaintiff, they notified Smith. It was not “practicable” to notify the architect of a “proposed” subcontractor until after an agreement had been reached with such sub-contractor. Until such agreement with a sub-contractor, the acceptance of his bid, etc., there was nothing to submit. The article contemplates that an agreement should be reached between the contractor and the subcontractor and that the name of the subcontractor should he submitted to the architect. The fact that the agreement between plaintiff and defendants was reduced to writing previous to the submission of plaintiff’s name to the architect, does not cut defendants off.

The written instrument is not the contract. A contract is an agreement by which one person obligates himself to another, etc. C. C. 1761; and—

“the contract must not he confounded with the instrument in writing by which it. is witnessed.”

C. C., 1762.

Counsel also complain that the architect was not promptly notified.

The testimony does not make it clear as to when defendant notified Smith that he proposed plaintiff as a sub-contractor, but we infer that there was some delay. But granting that there' was a delay, that is not a matter which concerns plaintiff, for the reason that he was in no way injured by such delay. He did not execute the contract. He did not contract for labor and did not order any material. The cancellation of the contract left him precisely where he was before it was entered into. The only claim which he makes is for the profits he alleges he would have made had he been permitted to do the work.

In conclusion we may say that an enforcement of the contract would be wholly inequitable. It was through no fault of defendants that they did not live up to the agreement with plaintiff. Due to the very nature of the situation it was impossible for them to carry out the agreement with plaintiff. It is conceded that without Smith’s approval plaintiff could not do the work. The testimony shows that defendants lost from $800.00 to $1000.00 by virtue of having to get another sub-contractor. They reconvened for this amount, but neither the law nor the evidence supports their claim.

For the reasons assigned, the judgment is affirmed with costs.


text:
    No. 3099
    Second Circuit
    LANGLEY v. WIDOW AND HEIRS OF McDONALD, ET AL.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    Although the Workmen’s Compensation Act No. 20 of 1914 as amended should be liberally construed in favor of an employee, nevertheless where employee is engaged in a hazardous, occupation which is incidental to the consummation by his employer of a contract of sale of raw material to a mill, the relation of principal and contractor not being existent, the employee cannot recover compensation from the mill. (Refer to Section 3, Subsection 8, of Act No. 85 of 1926.)
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by .Pirdy Langley against Widow and Heirs of E. N. McDonald et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    J. Rush Wimberly; George M. Wallace, of Arcadia, attorneys for plaintiff, appellee.
    J. W. Elder, of Ruston; Charles B. Roberts, of Minden, attorneys for defendants, appellants.
   WEBB, J.

This suit was brought against Adams Brothers, a partnership composed of J. T. Adams and J. E. Adams, and the heirs of E. N. McDonald to recover judgment against them in solido for compensation under the Employers’ Liability Act. It was abandoned as against the heirs of E. N. McDonald and prosecuted only as against Adams Brothers and the individual members of the partnership, against whom-judgment was rendered in favor of the plaintiff, from which defendants appeal, and plaintiff has answered the appeal, praying that the judgment be amended in his favor.

The evidence shows that McDonald was engaged in the business of “logging” and plaintiff was employed by him and was injured by an accident ’ arising out of and in the course of his employment, and as between plaintiff and McDonald it appears plaintiff would have had the right to recover.

There was not any evidence introduced to show the relation between the operations of McDonald and Adams Brothers further than a written contract entered into by and between J. E. and J. T. Adams and McDonald and Goodwin, under which Adams Brothers, in their answer, allege that the logging operations of McDonald were conducted.

The contract, which was annexed to defendants’ answer, and offered in evidence, reads in part as follows:

“Be it remembered that on this the 30th day of January, 1926, that the following contract and agreement is made and entered into by and between J. E. Adams, a resident of Webster parish, and J. T. Adams, a resident of Bienville parish, hereinafter referred to as the parties of the first part, and E. N. McDonald and Glenn Goodwin, both residents of Lincoln parish, and hereinafter referred to as the parties of the second part, witnesseth:
“That, whereas the parties of the second part are the owners of from ten to twelve million feet of merchantable pine, oak and gum timber now standing, growing and being, surrounding and within a logging distance of saw and planer mill some six miles west of Vienna, Louisiana, now, therefore, the said parties, for the considerations hereinafter set out, have agreed to lease to the said parties of the first part, their heirs and assigns, the said saw mill, planer mill and equipment for both, such as tramways, kilns, dolleys, and saw and planer mill equipment, necessary for the sawing of logs and planing thereof and as now constituted, together with twelve houses for labor.
“That as a consideration of the above, the parties of the first part agree to purchase from the parties of the second part, or their assigns, all of the pine, oak and gum logs delivered to them (as hereinafter stipulated) and to pay therefor the sum of twelve dollars per thousand feet log measure (by legal scale). The said logs are to be paid for as scaled on skidway on the fifth and twentieth of each month.
“It is agreed that the gum timber is to be fourteen inches and up, the oak to be twelve inches and up, and the pine to be eight inches and up. That all logs are to be cut under orders of parties of the first part insofar as lengths are concerned, insofar as practicable as to the timber being then cut.
“It is agreed that the parties of the second part will deliver on an average four hundred thousand feet, log scale, per month during the term of this contract. It is agreed that parties of the second part will deliver to parties of first part hereunder and parties of the first part will accept twelve million feet of timber as now owned by parties of second part and that parties of first part will accept additional timber that may be hereafter purchased by parties of second part during the life of this contract and within two miles of the mill seat and not over twenty-five per cent, 'old field’ timber and that they will accept all other timber within five' miles of mill seat that is agreeable to them.”

The contract between J. E. & J. T. Adams and McDonald & Goodwin does not show the connection between the operations of McDonald and the obligations assumed by McDonald & Goodwin; however, it appears to be conceded that McDonald was acting for himself and Goodwin in that counsel • present the case from that point of view, and there was not any evidence offered tending to show to the contrary except that it was- shown that McDonald had in his operations hauled some logs on his own account from which he had made crossties, but it does not appear that plaintiff hauled any of such logs, and he testifies that his employment was confined to hauling logs to the mill operated by J. E. & J. T. Adams under the name of Adams Brothers, and we shall consider the cause from the point of view of counsel, assuming that McDonald, in his operations, was acting for himself and Goodwin.

From this view, plaintiff contends that the Adamses were the principals of McDonald within the meaning of Section 6 of the statute which reads in part as follows:

“That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation, ot which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.”

And he also argues that there was an executory agreement to form a partnership between J. E. Adams and J. T. Adams and McDonald & Goodwin to operate a sawmill which was consummated by the parties acting under the agreement; while the defendants contend that the operations of McDonald were merely incidental to the obligation of McDonald & Goodwin, as sellers or vendors of movable property, but if it should be held that the operations of McDonald had any legal relation, within the meaning of the statute, to the operations of the sawmill by Adams Brothers, that McDonald was an independent contractor as defined by Clause 8, Section 3, which reads:

“A person rendering service for another in any of the trades, businesses or occupations covered by this act (other than as independent contractor, which is expressly excluded hereunder) is presumed to be an employee under this act. The term 'independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service for a specified result, either as a unit or a whole, under the control of his principal as to the results of his work only, and not as to the means by which such result is accomplished.”

Considering the argument that Adams Brothers or J. E. & J. T. Adams, entered into a contract with McDonald & Goodwin to form a partnership to operate a sawmill, the contract does not provide that the parties should share in the profits or losses; neither does it provide for any community property or joint control, and conceding that they proceeded in accordance with the contract we do not think there was any partnership between Adams Brothers or J. E. & J. T. Adams, and the Adamses could not be held liable as partners of McDonald & Goodwin for the obligations of the latter.

Relative to the contention that McDonald was a contractor, and the Adamses were his principals, the reply suggested by defendants that the rights and obligations of the parties (Adamses and McDonald & Goodwin) would jhave to be determined either under the law relative to “Leases of Things” or “Sales” as provided by the Civil Code, and that the law relative to contracts of hire or “Leases of Labor or Industry” where the terms “principal” and “contractor” have a special significance could not have any special application, may have been sufficient, if the terms “principal” and “contractor” used in the Employers’ Liability Act are considered in their usual relation.

The plaintiff’s contention, however, appears to be that the terms “principal” and “contractor” as used in the statute .(Section 6) have a broader significance than when used to designate the parties to a contract of “Lease of Labor or Industry”, and considering that the statute should be liberally construed in favor of the employee, and looking beyond the law which would govern as between the parties, he contends that the Adamses, having leased the mill and thereby bound themselves to operate it and manufacture lumber, and that logs being necessary in the manufacture, and the lessees having bound themselves to purchase logs from McDonald & Goodwin only, thereby contracted with McDonald & Goodwin to log the mill and were the principals of McDonald & Goodwin.

We do not understand plaintiff to contend that the terms “principal” and “contractor” as used in the statute should be considered as synonymous with “obligee” and “obligor” or “contractee” and “contractor” as commonly used, nor to contend that the person who undertakes to conduct a hazardous business is to be considered as a “principal” with relation to the employees who may he employed by the person from whom material, fuel or other articles of merchandise necessary in conducting the hazardous business are obtained.

However, the plaintiff’s position is stated in a very general way, and as we do not know whether he contends that the work “logging” being done by McDonald was necessarily an incident of the hazardous business of sawmilling, and the Adamses should he held as “principals” from that point of view, or whether he contends that the Adamses had contracted with McDonald & Goodwin to log the mill, and should be held as the principals of McDonald & Goodwin (for whom McDonald is assumed to have been acting) in the hazardous business of “logging”, and we shall consider the contract from both points of view.

While it is not so stated, we assume it will be conceded that a person operating a sawmill could contract for and purchase logs to be delivered at the mill, without subjecting himself to liability to the employees of the seller who may be injured while employed by the latter and engaged in hauling the logs or other work necessary or incidental to the delivery of the object sold (Morrison vs. Weber-King Mfg. Co., 6 La. App. 388), and that the legal relation would be the same even though the person operating the mill contracted for and purchased all of the logs used by him from one person or many or exclusively from one, or that the legal situation would be changed if he bound himself to purchase from one person exclusively, and considering the contract and the contention of the plaintiff that the Adamses had let or contracted with McDonald & Goodwin exclusively to furnish logs to the mill, at a price agreed upon for the logs delivered at the mill, we do not think it can be said the Adamses became bound as the “principals” of McDonald & Goodwin.

Neither do we think that the Adams were the principals of McDonald & Goodwin in the logging operations of the latter. The timber which was cut and hauled belonged to McDonald & Goodwin, and although it may be assumed that the price which was agreed to be paid to McDonald & Goodwin for the logs included something for the lease of the mill, it cannot be said (as argued by plaintiff) to have included anything for the expenses of McDonald & Goodwin for “logging” their own timber.

While the statute should be liberally construed in favor of an employee, yet where an employee claims compensation from another than his immediate employer we do not think he is entitled to recover although it appears that the person from whom compensation is claimed was engaged in a hazardous business and that the employee’s immediate employer was employed in the business of supplying raw materials, etc., necessary in conducting the hazardous business, in which employment the claimant was engaged, where it appears that the work in which the claimant was engaged was merely incidental to the consummation by his employer of a contract of sale.

From this point of view we do not deem it necessary to discuss the question of independent contractor, or the effect of the addition of Clause 8, Section 3, by the amendment of 1926!

The judgment appealed from is therefore avoided and reversed, and it is now ordered that plaintiff’s demands be rejected at his cost.


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    No. 3265
    Second Circuit
    McNEELY v. SPEIGHT
    (March 16, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Elections by the People — Par. 80; Pleading — Par. 62.
    Petition of plaintiff in election contest brought under Section 6, Act VIII, the Constitution of 1921, on account of permitting those convicted of a crime to vote, must contain sufficient allegations to show not only that person voting has been convicted of a crime but also that he had not' been pardoned. Failure of petition to contain these allegations is sufficient for the court to maintain an exception no cause of action.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal. A. Burgess, Judge.
    Action by H. F. McNeely against S. J. Speight, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and exception no cause of action maintained.
    E. M. Fraser, R. A. Fraser, of Many, attorneys for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, H. F. McNeely, seeks to have himself declared the nominee for police juror for ward two of Sabine parish, of the Democratic party under an election held in that ward on February 28, 1928.

There were two primary elections held in which the present parties, H. F. Mc-Neely, plaintiff, and S. J. Speight, defendant, were opposing candidates for police juror and at the first primary election each having received an equal number of votes, a second primary election was ordered by the Parish Democratic Committee, and the parties admit that on the face of the returns as made by the commissioners each of them have received an equal number of votes at the second pri.mary, although it is conceded that the Parish Democratic Committee had not canvassed the returns or promulgated the result ¡prior to the present' suit.

The specific allegations on which the plaintiff claims that he should be declared the nominee are as follows:

“Petitioner shows that on the day of the second primary at a voting precinct in ward two of Sabine parish, Louisiana, known as Palmer’s Store Precinct No. 1, one of the two precincts of said ward, that one (A) presented himself and demanded a right to vote; that (B), a commissioner of said election in said ward of said parish and state, protested the ballot of the said (A) on the grounds that he was convicted of a felony in the parish of Sabine, State of Louisiana, on tbe 29th day of October, in the year 1919, and sentenced to the penitentiary of this state at' hard labor for a period of from ten to twelve years; that the said (B), commissioner of said election attached to the ballot cast by the said (A) the necessary memorandum setting forth the grounds of protest as the law directs; and that the said (A) in casting his ballot voted for the defendant S. J. Speight.”
“Petitioner further shows that the returns of the second primary election show that from the two precincts of ward two your petitioner received one hundred and eight votes; that the defendant, S. J. Speight, by counting the protested ballot, received a like number; that if the protested ballot is adjudged null and void, as according to law and equity it should be, that your petitioner, H. F. McNeely.^will be declared the Democratic nominee for police juror for ward two of Sabine parish, Louisiana.”

The defendant excepted that the (petition failed to state a cause of action, which being overruled, he answered pleading, in effect, a general denial, and further alleged that certain persons (seven in number) voting for plaintiff were not qualified voters and that their ballots should not be counted, thus leaving him a majority of the ballots, and praying that plaintiff’s demands be rejected and that he be declared the nominee.

On trial, judgment was rendered in favor of plaintiff and defendant appealed.

The right to bring this action is apparently based upon the Constitutional provision (section 6, Article VIII) which declares :

“The following persons shall not be permitted to register, vote, or hold office * * * to-wit: Those who have been convicted of any crime which may be punishable by imprisonment in the penitentiary, and not afterward pardoned with express restoration of franchise * *

And the exception of no cause of action was based upon the failure of plaintiff to allege that the person casting the protested ballot had not been pardoned with restoration of his right of franchise, and on certain provisions of the statute which we do not deem it necessary to consider.

Counsel for plaintiff cite some cases which state the general rule to be that one does not have to • allege and prove a negative, and it is urged that plaintiff was not bound to allege that the person casting the protested ballot had not been pardoned and his right of franchise restored.

There is possibly some conflict as to the weight qr the sufficiency of evidence to show that a iperson voting at an election is an illegal voter, but it must be conceded that the burden of proof would have been upon plaintiff to show that the challenged voter was an illegal voter (Jones, Ev., No. 180), and considering without deciding that the allegations made were equivalent to charging the challenged voter with having been convicted* and sentenced to serve a term in the state penitentiary, we think it was incumbent on plaintiff to allege the facts showing he was an illegal voter.

The fact of the person having cast the protested ballot having been convicted of a felony and having been sentenced to the penitentiary, does not necessarily show that he was an illegal voter and the sole ground upon which the plaintiff claims the right to be declared the nominee being that the person casting the protested ballot was an illegal voter, we are of the opinion that he should have set forth the facts which, if true, would show that the person casting the ballot was an illegal voter, though it was necessary to allege facts of a negative character. (Cross, Pleading, page 93, No. 78.)

“Whatever facts must be proven to maintain a suit upon its merits must be alleged to set forth a cause of action, even though the allegations be of a negative character.” (Lurie vs. Titcomb, 139 La. 9, 71 South. 200.)

We therefore are of the opinion that the exception of no cause of action should have been sustained.

As stated above, it was conceded by the parties and is indicated by the record that the Parish Democratic Committe had not canvassed the returns of the election as provided by the statute (Act No. 97 of 1922) prior to the present action being initiated, and in considering the case we do not express any opinion on the question of the right of the parties to have initiated the action prior to the returns having been tabulated and compiled by the Parish Democratic Committee or prior to the committee having promulgated the returns or declared any one to be the nominee of the party. (See sections. 26-27, Act No. 97 of 1922.)

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the exception of no cause of action filed by defendant be sustained and plaintiff’s suit dismissed at his cost.


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    No. 3058
    Second Circuit
    LeBLANC v. THE OHIO OIL COMPANY
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (April 9, 1928. Certiorari Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158.
    Where employee was injured on a highway by being hit by an automobile while he was in front of employer’s property on his way to work, the accident being directly attributable to the risk due to his employment, the highway being the only practical way of immediate ingress and egress to and from the premises, he was injured in the course of his employment within the meaning of the Workman’^. Compensation Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 159.
    Where the evidence does not indicate that the injury resulted or will result in employee’s limb being an impediment to his ability to work, the sole cause of. his disability being due to the limb, period of compensation will be allowed not longer than for loss of limb or 200 weeks, under Workmen’s Compensation Act No. 20 of 1914.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by T. L. LeBlane against the Ohio Oil Co. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Fern M. Wood, A. D. Flowers, of Lees-ville, attorneys for plaintiff, appellant.
    R. L. Benoit, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, T. L. LeBlane, an employee of the defendant, The Ohio Oil Company, brought this action to recover compensation under the Employers’ Liability Statute for injuries alleged to have been sustained in an accident arising in the course and out of his employment, resulting in permanently disabling him to do work of a reasonable character.

The defendant denied liability, urging that the accident had not arisen in the course or out of the employment, or, if liable, that plaintiff had not been permanently totally disabled, and plaintiff appeals from a judgment rejecting his demands.

The evidence establishes that plaintiff was employed as a general workman on an oil lease operated by defendant at a daily wage of four and 50-100 dollars, and that plaintifi began work by reporting at 7 o’clock a. m. at a toolhouse situated on the leased premises.

The lease covered eighty acres, a part of which had been developed, which part was bisected by the public highway; .on one side of which there were oil wells and on the other a treating plant and tool house, and in the course of plaintiff’s work it was necessary for him to pass over the highway in going from one part of the premises to the other.

The plaintiff resided at a boarding-house with which defendant was not connected, situated on or near the highway about a mile from the lease, and plaintiff had been accustomed to using the highway in going to and from his work, sometimes walking and at other times riding, in vehicles belonging to third persons, and on the day of the accident plaintiff left his boardinghouse at about half past six o’clock in the morning and had been allowed to ride in an automobile owned and driven by a third person to the lease, arriving there sometime between half past six and seven o’clock, that the automobile was stopped at a point on the highway opposite the tool house, where plaintiff alighted, and while passing over the roadway from the place where he alighted from the automobile towards the tool house, he was struck by an automobile which was being driven along the highway by some one who was not connected with defendant.

While plaintiff recognizes the general rule that an injury to an employee on the public highway in going to or returning from the place of his employment does not arise in the course or out of the employment, he urges that the facts bring this case within equally as well recognized exceptions to the general rule, citing Cudahy Packing Co. vs. Parramore, 263 U. S. 418, 68 Law Ed. 366; Jones vs. Louisiana Central Lumber Co., 2 La. App. 260, and Prevost vs. Gheens, 151 La. 508, 92 South. 38.

The cases cited, with the exception of Cudahy Packing Co. vs. Parramore, did not deal with accidents which occurred on the public highway, but we think they are authority for the plaintiff’s contention that the fact of plaintiff having arrived at the place of his employment a short time before he was to report for work would not affect his right to recover insofar as. it relates to the question of whether or not he should be considered in the course of his employment, as the evidence showing that plaintiff resided about a mile from his place of employment, it cannot be said that his leaving his residence at half past six o’clock so as to report for work at seven o’clock as unreasonable, or that the interval between the time of his arrival and the time he was to report for work was an unreasonable time, but the question does not relate so much to the time of the accident as to the place of the accident, and as to whether the risk resulting in the accident was incidental to the employment.

While the place of the accident was upon the public highway, and the accident was directly attributable to a risk which was common to all persons using the highway, these facts do not necessarily preclude recovery, provided it can be said that the employment resulted in exposing plaintiff to the risk beyond that to which the public was subjected (Cudahy Packing Co. vs. Parramore, supra; Katz vs. Kadaus & Co., 232 N. Y. 420; 423 A. L. R. 401) or that it can be said the accident occurred on the employer’s own premises (Cudahy Packing Co. vs. Parramore; Jones vs. Louisiana Central Lumber Co., and Prevost vs. Gheens, supra).

The evidence, as stated, shows that the premises where plaintiff was employed were bisected by the highway and that plaintiff, in the course of his employment had, from time to time, to cross the highway in performing his work, and had the accident occurred while he was so engaged there could not be any doubt as to his right to have recovered; but conceding that the fact of one being exposed to the risk of the street or highway while actually performing his work would not necessarily entitle him to recover for injuries resulting from such risk when he was not engaged in the work of his employment, unless it could be said that the (place of the accident was on the premises of the employer, we do not think the latter question is to be determined solely by reference to the fact of the accident having occurred on the highway, but rather with regard to the relation which the place of the accident bears to the premises where the person is employed.

In Cudahy Packing Co. vs. Parramore, where the accident had occurred on the highway at a railroad crossing which was about one hundred feet from the employer’s premises, it' was said:

“Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore, could not at the place of the accident, select his way. He had no other choice than to go over the railroad tracks in order to get to his work, and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risks beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.” (Italics ours.)

And the ruling in Jones vs. Louisiana Central Lumber Co. was based upon that decision, from which the excerpt above is taken.

In addition to the facts previously stated, the evidence, we find, shows that the highway was the only practical way of immediate ingress and egress to and from the premises, and it appearing that the employment of plaintiff required the use of the highway at the point where the accident occurred in the performance of his work, we are of the opinion that the place of the accident should be considered as on the premises of the employer and the accident to have arisen in the course and out of the employment, and the defendant held liable under the statute.

The plaintiff’s leg was broken, and while the evidence does not show that the fracture was of such nature as to cause the permanent loss of the use of the limb, but rather indicates that he will recover and that he should have recovered in seven months from the date of the accident, which occurred on the 12th of July, 1926, yet plaintiff being still disabled on the date of the trial, March 1, 1927, he contends that the period of compensation should be for permanent total disability, under the ruling that where the injury was serious and had caused total disability which had continued for a comparatively long period and still existed at the date of the trial, the period of compensation would be fixed as for permanent total disability.

However,. in the present case, the evidence does not indicate the injury has resulted or will result in plaintiff’s limb being an impediment to his ability to- work or that he will not recover the full use of his limb, and it appearing that the sole cause of his disability is the injury to his limb, the period of compensation should not be longer than would be allowed for loss of the limb, or two hundred weeks (James vs. Spence & Goldstein, Inc., 161 La. 1108, 109 South. 917; Hunter vs. Louisiana Ice & Utilities Co., 6 La. App. 849), and we shall fix the compensation for that period.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff, T. L. LeBlanc, have and recover judgment against defendant, The Ohio Oil Company, for compensation at the rate of sixty-five percent of twenty-seven dollars, or seventeen and 55-100 dollars per week, beginning on July 12, 1926, and weekly thereafter for the period of his disability, not to exceed two hundred weeks, with legal interest on all payments from maturity until ipaid, and all costs of suit'.


text:
    No. 3019
    Second Circuit
    MARLER v. EICHER-WOODLAND LUMBER CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact where clearly correct are affirmed.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Norris A. Marler against Eicher-Woodland Lumber Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    B. T. Dawkins; W. C. Roberts, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

The defendant prosecutes this appeal from a judgment, condemning it to pay plaintiff the sum of $316.65 for saw logs which it is alleged plaintiff furnished and for which defendant agreed to pay.

The amount involved is not disputed, it being conceded that plaintiff delivered the logs as alleged; but defendant denies liability on the ground that the logs and timber were sold and delivered to L. R. Baker who was operating a sawmill for one Mr. Parish, with which mill it' had no connection, and that it did not purchase the logs and did not agree to pay for them.

We find the facts to be that L. R. Baker was operating a sawmill in Rapides parish which, he says, was owned by his son-in-law, Parish, who seems to be a non-resident of the state and and whose domicile is not disclosed by the record.

It may - be, as alleged and contended by counsel for plaintiff, that Baker owned the mill and that it was purchased in the name of Parish because there were judgments against Baker; or it may be, as further suggested, that the mill was in fact owned by this defendant and only operated 'by Baker under some undisclosed arrangement. But' we think it unimportant for the purposes of this decision who owned the mill, for the case does not hinge on that point.

Regardless of who owned it, the facts are that Baker was in charge of and operating it.

The plaintiff, Marler, was in the logging business and was getting out and delivering saw logs to mills. He says that Baker applied to him to purchase logs. Baker says that' Marler applied to him to sell him logs. At any rate, Marler was not willing to sell logs to Baker, for the reason he was afraid that Baker, who was not financially responsible, would not pay for them.

When the negotiations came up between Marler and Baker over the sale of logs, Marler made it plain to Baker that he would not sell the logs to him and look to him for the price.

This fact is testified to by both Marler and Baker.

Baker was asked:

“When you were discussing the question with Mr. Marler, did Mr. Marler make any statement that he wouldn’t sell you ■ directly?”

And he answered:

“Yes. I owed him at that time some money, and he said he had to ¡pay for these logs and he had to know that he was going to get the money.”

Baker says that he then told Marler to see Mr. Eicher (president of the defendant company) and that Marler did go to see Eicher and came back and told him that he had made arrangements with Eicher, and that Marler began at once to deliver logs, which he had before refused to do.

That was some time in the month of June. Marler delivered logs at the mill until some time late in August.

The logs delivered were paid for by the defendant company, which issued its checks payable to Marler, one on July 3rd, one on July 10th, one on July 31st, and on August 7th, 14th, 21st, and 28th, and one on September 4th.

The defendant company therefore paid Marler direct for all the logs delivered up to September 4th.

Late in August or in early September there was in circulation a report that Baker was to give up the mill and that another party was to take charge. Marler, on hearing this report, it seems ceased to deliver logs. Baker, who had not at that time released his management of the mill, informed Eicher of that fact and told him that Marler would not deliver any more logs because he was afraid they would not be paid for. Baker says that he suggested to Eicher that he go out to the mill and see Marler about the logs and that Eicher said he could not go in person but would send Mr. Lewis in his stead. Lewis was an employee of defendant company. Eicher admits that he told Baker that and admits that he sent Lewis to see Marler. All the witnesses, including Lewis, say that Lewis did make a trip to see Marler about the logs and that Lewis and Marler met at Marler’s residence on a Sunday morning.

After Lewis’ visit to Marler and after their conversation about the logs, Marler delivered the logs which are in controversy in this suit and for which, admittedly, he has not been paid.

The authority of Lewis to bind the defendant company for the payment of such logs as Marler might subsequently deliver, can hardly be seriously questioned.

Baker says he told Eicher that Marler would deliver no logs to him, Baker, and that Eicher said he would send Lewis to see about it; and Eicher says he did send Lewis in his stead; so that if, as a matter of fact, Lewis, as the agent of the defendant, agreed that defendant would pay for the logs, defendant is bound.

The record establishes to our entire satisfaction that Lewis did assure Marler on that Sunday morning that the defendant would take and pay for the logs. There were present and heard the conversation between Lewis and Marler, the following persons: Baker, Howard Marler, son of plaintiff, and N. H. Harrington.

The plaintiff testified that Lewis came to his house and told him they wanted the timber and he told Lewis that he must have some definite understanding about his pay and that Lewis said:

“You needn’t worry about your money; we’ll pay you every day if necessary.”

Mr. Baker testified that after Eicher agreed to send Lewis to see Marler, he and Lewis went for the purpose of getting the logs, and, asked what Lewis said to Marler, he answered :

“He said, ‘if you want your money every night, get it every night’.”

Baker was asked:

“Did Mr. Lewis ask him (Marler) to let them have logs for the mill?”

And he answered:

“Yes, we went out for that purpose.”

And he reiterated that Lewis told Marler Ke could get his money every night.

Howard Marler said he heard the conversation and that Lewis told his father that they wanted all the timber they could get, and that his father raised the question of pay, and Lewis said:

“If you doubt your pay you can come in every night and get your money.”

And that his father said:

“That will be satisfactory to me.”

N. H. Harrington, a disinterested witness, said he heard the conversation, and testifies:

“Mr. Lewis and Mr. Baker came out there and Mr. Lewis told him (Marler) that he wanted his timber and he had been letting Mr. Ball have some of the timber and Mr. Lewis said ‘We want the timber,’ and says, ‘don’t worry about the pay, if you are afraid of it, every Saturday night you can get it if you want it’.”

J. D. Stracener, another disinterested witness, testified that he was at Marler’s log “ramp” early in September when Lewis and another man came out and interviewed Marler about logs; that Marler was about to ship his logs to Alexandria, and that Lewis told him not to do so as they .wanted them.

Lewis says that he did go to see Marler at the suggestion of Eicher, but says he went for the purpose of influencing Marler to sell the logs to Baker instead of to some one else; that his company had an order for some cypress lumber and wanted Baker to saw it; but he denies that he told Marler that the company would take and pay for the logs.

However, his testimony, on cross-examination, is not so strong on that point.

He was asked:

“Didn’t you, while out there, state to Marler in the presence of these other witnesses that he need not worry about his pay, that he could get his pay every night?
“A. I don’t recall that.
“Q. Do you deny that you made such a remark?
“A. I deny recalling it.”

Mr. Eicher said he gave Lewis no authority to bind his company to pay for the timber, and further stated that at no time had he told Marler his company would be responsible to him for any amount.

Marler, however, testified to the contrary on that point.

Marler’s testimony that Eicher agreed to pay him for the timber, is corroborated by every circumstance connected with their transactions. It is proved beyond question that Marler refused to sell and deliver logs to Baker on his own responsibility. This fact was communicated to Eicher by Baker and Eicher told Baker to send Marler to him. Marler did see Eicher and immediately after the interview Marler began to deliver the logs. Eicher admits the interview with Marler, but says he did not agree to pay him.

But the record discloses that the defendant did pay Marler for all the logs delivered up to September 4th. The cheeks are on file. Not only that, but Baker informed Eicher that Marler was uneasy about his pay, so that Eicher knew that the only hitch was Marler’s pay and he sent for Marler. Later, when Marler stopped delivery, Baker told Eicher and Eicher sent Lewis to see him. Eicher knew that Marler would not deliver any more logs because he wag afraid he would not be paid, and Lewis was sent to see him.

Now what was the purpose of sending Lewis to see Marler if not to satisfy him on that point? Marler was satisfied and began at once to deliver logs at the mill, which he had theretofore refused to do.

Asserting that the amount due for the logs was Baker’s debt, counsel for defendant objected to the introduction of parol testimony tending to show that defendant agreed to (pay for the logs, on the ground that such testimony was not admissible to prove the promise to pay the debt of a third person, and he cites article 2278 of the Civil Code and a long list of authorities in support of this contention.

The law cited is good, of course, but not in point.

The debt for the logs was not Baker’s debt. Marler had no contractual relations whatever with Baker. He and Baker both say so. Marler refused to sell Baker logs and upon such refusal Eicher, representing defendant, and Lewis, defendant’s agent, contracted with Marler to pay for them. So that the debt was defendant’s and not Baker’s.

Counsel for defendant, in brief, say that all the testimony shows that the logs were sold to Baker and that Baker so testified.

Counsel is in error.

At page 27 of the testimony, Mr. Baker was asked:

“Q. When you were discussing the question with Mr. Marler, did Mr. Marler make any statement that he wouldn’t sell to you directly?
“A. Yes. I owed him at that time some money, and he said he had to pay for these logs and he had to know that he was going 'to get the money.
“Q. You say that Mr. Marler told you that he couldn’t hold you responsible for this debt?
“A. I don’t know that he said exactly that. He just wanted to know that he was going to get his money.
“Q. Who did you tell him to see?
“A. I told him to see Mr. Eicher.”

He says, page 28, that Marler saw Eicher at once and the next day began to deliver logs.

Again, ¡page 31, Baker said he told Eicher he could not get the logs, and was asked:

“Q. Then after you told him that did you. suggest that he go out there with you?
“A. Yes, sir — I did.
“Q. And did he say “he would go?
“A. He sent Mr. Lewis.
“Q. Mr. Lewis went with you?
“A. Yes, sir.
“Q. And you all went to Mr. Marler’s house?
“A. Yes, sir.
“Q. Did Mr. Lewis ask him to let them have logs for the mill?
“A. Yes, we went out for that purpose.”

Baker then explains that Lewis told Marler he would get his money every day if he wanted it.

Again, at page 37, Baker was asked:

"Q. Did you tell Mr. Marler that you were buying the logs for the Eicher-Woodland Lumber Company or buying them for yourself?
“A. I don’t think that was ever mentioned, for myself or for Eicher-Woodland Lumber Company. I was buying — he was in for knowing he was going to get his money.”

Aside from the one expression “I was buying” above quoted, Baker no where said he purchased the logs as an independent deal, and that expression must he interpreted in the light of his other testimony given immediately before and after that statement was made; all off which is to the effect that Marler would not sell him the logs. Upon Marler’s refusal to sell the logs to Baker, defendant intervened and agreed to take and pay for them. It took over a contract which Baker tried but failed to make.

It may be well to state that defendant had an interest in securing the logs for the operation of the mill. It was financing the mill under an arrangement by which it was to handle the output on a commission basis, the commission being 10%. It is admitted that defendant was interested in seeing that the mill was operated —no lumber, no sales — no sales, no profit. Lewis explained that they had an order for cypress lumber and they wanted Baker to saw it- Marler had the logs — they were therefore interested in seeing that Baker got the logs to saw. This was a sufficient consideration for the contract which defendant made with plaintiff to pay him for the logs.

The District Judge was of the opinion that the facts justify a verdict for plaintiff. We are of the same opinion, and the judgment is affirmed, with costs.


text:
    No. 2632
    Second Circuit
    HOLLINGSWORTH v. GLEISSNER
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Injunction—Par. 93, 125.
    Under Act 304 of the Code of Practice, in case the injunction is dissolved, the judge has no discretion as to the amount of damages except that it shall not exceed 20% unless damages to a greater amount be proved.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Miss Lizzie Hollingsworth against H. P. & A. M. Gleissner.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Alpha & Fisher; Crow & Coleman, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

In the year 1924 or 1925, H. P. & A. M. Gleissner filed suit against Miss Lizzie Hollingsworth to recover $675.00 for rent due on an apartment house in the city of Shreveport.

Miss Hollingsworth answered that suit and coupled her answer with a reconventional demand for $9750.00 damages for the alleged violation of the rent contract.

Plaintiffs, through their attorneys, had the case set for trial, and on the day set neither Miss Hollingsworth nor her attorneys appeared.

Plaintiffs proved their case against Miss Hollingsworth, and the Court entered judgment against her for $675.00 This judgment is dated June 27, 1925.

When the judgment became final, plaintiffs attempted to execute it by having Miss Hollingsworth’s property seized under a fi. fa. whereupon she brought the present suit, the purpose of which was to have the judgment rendered against her on June 27, 1925, “annulled and set aside,” on the ground that neither she nor her attorneys were notified of the setting of the case for trial, and did not know it was set and therefore did not appear and defend the action. Coupled. with her action for the nullity of the judgment, she enjoined its execution.

Upon trial on the merits, the lower court rejected plaintiffs’ demands at her cost and dissolved the injunction and rendered judgment against her and her surety on the injunction bond for $135.00, this being 20% of the amount of the judgment enjoined.

Miss Hollingsworth and her surety have appealed.

OPINION.

Counsel for appellant, in their brief, say:

“We understand that since the transcript of appeal was filed in this court, the judgment, the execution of which was enjoined, in this cause, has been fully paid by the plaintiff, and it appears to us, therefore, that the only question before this court is a moot one. If the court desires for us to do so, we can procure the necessary certificate and affidavits showing the payment and cancellation of the judgment.”

There is, therefore, no necessity for our passing upon the merits of the case.

But counsel state that the court erred in condemning her and her surety on the injunction bond to pay $135.00 upon the dissolution of the injunction.

Article 304 of the Code of Practice provides that—

“* * *-in case the injunction be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of eight per cent per annum on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount he proved * *

The plaintiff in this case enjoined the execution of an ordinary judgment. Dp fendants in injunction asked that the injunction be dissolved, and specifically prayed that the statutory penalties be assessed uipon its dissolution.

The law directs the judge in such cases to assess the damages. He has no discretion except as to the amount, which, the code says, shall not exceed 20%.

The judge having exercised his discretion, as to the amount, and there being no suggestion that the amount is excessive (and we do not think it is) we shall not interfere.

The judgment appealed from is affirmed; appellant to pay all costs.


text:
    No. 2993
    Second Circuit
    TALLULAH COTTON OIL CO. v. McLEMORE BROTHERS
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 18, 22, 68.
    A written confirmation of sale marked “accepted” by the purchaser is a contract of sale not subject to cancellation.
    2. Louisiana Digest — Sales—Par. 44, 45, 130; Damages — Par. 71.
    A letter from purchaser to vendor authorizing him to sell the rest of the merchandise contracted for to- the best advantage does not operate a release of thq purchaser from the contract, hut makes him liable in damages for any loss sustained by the vendor as a result of purchaser’s breach of contract.

      3. Louisiana Digest — Damages—Par. 69.
    Where the buyer refused to accept goods to be delivered at a future date the quantum of damages is the difference between the price stipulated in the contract and that obtained for the goods provided they were sold to the best advantage at the time vendor was notified of the breach of contract by the buyer.
    Appeal from the Fifth Judicial District' Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Tallulah Cotton Oil Company against McLemore Brothers.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Smith & Hunt, of Rayville, attorneys for plaintiff, appellant.
    Tobin R. Hodge, of Rayville, attorney for defendant, appellee.
   ODOM, J.

On September 20, 1924, plaintiff sold to defendants ten car loads of cotton seed hulls and meal, at $42.50 per ton for the meal and $14.50 per ton for the hulls, to be delivered at Rayville, Louisiana, as ordered out by defendants up to December 31st, 1925; and on September 30th, 1924, it sold to defendants five cars to be delivered at Winnsboro, Louisiana; shipments and deliveries in each case to be made as ordered by. defendants.

The defendants ordered, received and paid for only a portion of the hulls and meal which they had purchased, leaving in the hands of plaintiff 112% tons of hulls and 37% tons of meal.

The market declined, and that portion of the hulls and meal not taken by defendants was sold by plaintiff, at $11.00 per ton for the hulls and $37.10 per ton for the meal, or a total of $688.13 less than the amount which plaintiff would have received if defendants had taken and paid for the hulls and meal at. the contract price.

Plaintiff brings this suit to recover that amount. Its demands were rejected by the lower court and it prosecutes this appeal.

OPINION

Plaintiff’s suit is grounded upon the proposition that it sold to defendants a certain quantity of cotton seed hulls and meal at a stipulated price per ton and that defendant failed to take and receive the entire quantity, and that upon defendants’ default upon the contract it sold in the open market and to the best advantage that portion of the hulls and meal refused by defendants, the sale being made for less than defendants had agreed to pay, and that it thereby sustained a loss of $688.13, for which amount it brings this suit.

It is undisputed that defendants paid for all the hulls and meal they received as per the contract.

Defendants admit that they signed the two orders or contracts for hulls and meal as alleged by plaintiff, and admit that they accepted and paid for several contracts thereof, but defend on the gfound that the contract was cancelled, insofar as the balance was concerned, on August 3, 1925, and that on that date, by specific agreement with plaintiff, they were relieved of the obligation to take any more hulls and meal.

According to our view, the case hinges on the question whether, as a matter of fact, the contract was cancelled on August 3, 1925, and the defendants relieved from their obligation to take the undelivered portion of the hulls and meal.

Counsel for defendants, in brief, makes some contention that they were never bound to take the full quantity of hulls and meal stipulated in the two instruments signed by them, for the reason that said instruments were no more than orders for the goods and were subject to cancellation by defendants at will.

Our conclusion, however, is that there was a sale of the goods.

The first instrument signed by defendants is styled “Confirmation of Sale”, is on a printed form with blanks to be filled in, is dated September 20, 1924, addressed to “Messrs. McLemore Brothers, Rayville, La.”, and reads, in part, as follows:

“Gentlemen: We confirm the following sale made this day to you: Quantity:”

The above is printed. Then, following, is inserted, with typewriter:

“10 — 20 ton cars. Product cotton seed meal and hulls sacked.
“Quality 8% ammonia meal. Price— $14.50 per ton hulls — $42.50 per ton meal • — delivered Rayville.
“Terms____________________Shipment up to December 31st.”

At the bottom of the instrument is printed the name: “J. Y. Wright, Lessee”; but he did not sign the instrument.

This instrument was sent to defendants who endorsed thereon, at the bottom:

“Accepted: McLemore Brothers. By H. E. McLemore.”

And returned it to plaintiff.

The second instrument, dated September 30, 1924, is identical with the first, except as to date and quantity ordered, and is likewise accepted by defendants.

In addition to the above, we find in the record the following letter:

“Rayville, La.,. September 29th, 1924.
“Mr. J. V. Wright, Tallulah, La.
“Dear Sir: In answer to yours of 27th inst. we wish to state that we will take the additional five cars on the terms stated, delivered to Winnsboro, La. Please fix us a contract and send over for our signature, using the same proportions of hulls and meal as in our other contract. We will send you the specifications for first car upon returning the contract.
“Yours very truly,
“McLemore Brothers, By C. McLemore.”

In response to the letter the instrument dated September 30th was made out and forwarded to defendants and accepted by them, as already stated. Both documents were made out and forwarded to defendants read, as stated:

“We confirm the following sale made this day to you:”

These instruments were not signed by Wright — his name was printed at the bottom thereof — and for that reason defendants contend that there was no completed contract.

We do not concur in this view.

It is undisputed that when Wright received the orders from defendants he at once made out and forwarded to them said instruments, which were accepted, and that following the accepted confirmations both parties treated the transactions as closed contracts of sale; for plaintiff shipped to defendants hulls and meal as« ordered and defendants received and paid for them as per the agreement.

Defendants in their letter of September 29th asked that a contract be sent over, which was done, and they accepted it as written, and stated in the letter,

“using the same proportions of hulls and meal as in our other contract”.

It is quite evident that both plaintiff and defendants considered that there was a contract of sale. Whether the written confirmation of the sale was signed by plaintiff or not makes no difference — the fact is that there was a contract.

Article 1762 of the Civil Code reads as follows:

“The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.”

The defendants having ordered the goods and their orders having been accepted by plaintiff, the sale was complete.

Furthermore the defendants’ answer, we think, clearly admits the validity, of the contract of sale.

They set up, as a special defense, that early in the year 1925 the wholesale business owned and operated by them was destroyed by fire and that on account of the loss thereby sustained by them they decided to discontinue said wholesale business and that—

“long before said fire your defendants ordered several car loads of meal and hulls from the plaintiff, the most of which had not been paid for, and that shortly after the fire above referred to, one Mr. Yeager representing J. Y. Wright, lessee, called upon defendants with reference to the contract attached to plaintiff’s petition as well as a balance due plaintiff for meal and hulls already delivered. That said Yeager insisted in payment and proposed to the defendant that if it would pay the account at once your defendant would have the right to cancel its order for meal and hulls, which defendant did, and according to instructions from Yeager wrote a letter to defendant (plaintiff) authorizing the plaintiff to sell said meal and hulls covered by the contract on the open market. The said Yeager said that the defendant (plaintiff) needed such a letter to complete its records.”

It will be noted that they refer to the contract which they had . with plaintiff and allege that they cancelled it. They unquestionably recognized up to that time that they were bound, for they allege that Yeager, representing plaintiff—

“proposed to defendant that if it would pay the account at once your defendant would have a right to cancel its order for meal and hulls which defendant did.”

So far as the record discloses, defendants had never contended that they were not bound under a contract to take the full amount of meal and hulls ordered, but they now contend that the order was can-celled at the suggestion of Yeager, and they refer to the letter which they wrote on August 3rd as evidence of the cancellation. That letter reads as follows:

“Rayville, La., August 3rd, 1925.
“J. V. Wright, Lessee,
“Tallulah, La.
“Dear Sir: This will authorize you to sell the rest of our contract with you on hulls and meal to the best advantage.
“Your very truly,
“McLEMORE BROTHERS,
“By C. McLemore.”

Instead of this letter showing a cancellation of the contract and a release by plaintiff, it shows to the contrary. Admittedly the market for hulls and meal had declined and was still declining. Defendants could not handle the undelivered portion of the order because its wholesale business had been discontinued on account of the loss by fire, and in order to minimize their loss defendants authorized plaintiff—

“to sell the rest of our contract with you on hulls and meal to the best advantage.”

Mr. Maxwell Yerger and Mr. George Yerger, both representing plaintiff, testified that they were both present when the letter was written and signed, that it was written by Mr. R. R. Dennis, who represented defendants, and signed by defendants, and that defendants agreed that plaintiff should sell the hulls and meal to the best advantage and that they would pay the loss, and authorized plaintiff to draw for the amount of the loss with invoice attached; and as authority for making the sale for defendants they obtained the above letter.

Mr. C. McLemore admitted that he signed the letter, but said it was the understanding that the order was to be cancelled and that he understood that the letter which Dennis had written and he had signed cancelled the order.

The positive and emphatic testimony of the Yeagers is that there was no agreement to cancel but an agreement that plaintiff would sell the remaining portion of the hulls and meal to the best advantage for account of defendants, who agreed to pay the loss.

The letter which defendants signed is in full' accord with this testimony and completely overthrows C. McLemore’s contention that the contract was cancelled and defendants released.

Our learned brother of the District Court assigned no written reasons for his judgment rejecting plaintiff’s demands and we are at a loss to know why he did so.

As to the quantum of damages which may be recovered in a ease of this kind, the law is specifically stated in the case of Mutual Rice Co. of Louisiana vs. Star Bottling Works, Limited, 163 La. 159 (111 South. 661), as follows:

“When a buyer breaches the contract of sale, the measure of damages which the seller is entitled to is the difference between the price stipulated in the contract and the market price at which the goods can be readily sold at the time and place of delivery; and it is the_ duty of the seller to minimize his loss by reselling the goods as soon as practicable after the buyer has refused to accept.”

In the case at bar, the buyer breached the contract and refused the goods. The seller sold the goods in open market at the best price obtainable. The difference between the price stipulated in the contract and that obtained for the goods was $688.13, the amount sued for. This is the amount of its damage.

But defendants’ counsel in brief contends that the goods were to be delivered by December 31st, 1925, and that the price which might have been obtained on that date should be considered in fixing the measure of damage.

That would be true if the buyer had breached the contract and had refused to accept the goods on that date. Such was not the case. The goods were to be shipped out as ordered by defendants. Plaintiff was obligated to deliver the entire order by December 31st provided defendants ordered the shipment by that time; but there is nothing to indicate that defendants’ failure to order out the goods by that time should constitute a breach of the contract. On the contrary, defendants were to pay 50 cents per ton extra for meal and 25 cents per ton extra for hulls for each month after December 31st, for storage in case plaintiff had to hold the goods.

The contract was not breached until August, 1925, and immediately thereafter plaintiff sold the goods left on its hands.

The amount of the loss is not disputed.

It is therefore ordered, adjudged and decreed that the judgment appealed from he reversed, and it is now ordered and decreed that the plaintiff, Tallulah Cotton Oil Company, have judgment against the commercial firm of McLemore Brothers and J. W. McLemore, Cage McLemore, E. M. McLemore, .and H. E. McLemore, the individual members of said firm, in solido, for the sum of six hundred eighty-eight and 13-100 dollars ($688.13) together with 5% per annum interest from judicial demand until paid and all costs.