text:
    No.-
    First Circuit
    BATON ROUGE SASH AND DOOR WORKS, INC., v. BURKES AND HALEY, ET ALS.
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Laws—Rar. 56, 84,85, 92.
    The law does not favor repeals by implication. The general rule .is that statutes should be construed together, and if possible, their differences reconciled.
    2. Louisiana Digest — Laws—Par. 84, 85, 92; Attorneys — Par. 59.
    Act 225 of 1918 providing for attorney’s fees to be paid plaintiff where suit is brought on a bond against the surety applies to building contract bonds, and Act 298 of 1926 regarding building contracts does not repeal this Act either expressly or by implication.
    Appeal from the Parish of East Baton Rouge. Hon. Geo. T. Favrot, Judge.
    Action by Baton Rouge Sash and Door Works, Inc., against Burkes and Haley, et als.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret and Brooks, of Baton Rouge, attorneys for defendants, appellants.
   MOUTON, J.

Burkes and Haley entered into a contract with the Female Orphan Association of Baton Rouge to construct a building on a lot in the City of Baton Rouge. They furnished a bond as contractors with the Globe Indemnity Company, as surety. Suit was instituted by the Baton Rouge Sash and Door Works, plaintiff, against Burkes and Haley to recover a balance of account for materials furnished, with interest and attorney’s fees.

The only point at issue is whether or not plaintiff is entitled to recover the sum of $294.00 as attorney’s fees against the Globe Indemnity Company, surety on the contractors’ bond.

The attorney’s fees are demanded under the provisions of Act 225, p. 408 of 1918. It is not disputed that plaintiff is entitled to recover under the act if it has not been repealed by Act 298. p. 408 of 1926. The District Court found that it was not, 'and rendered judgment in favor of plaintiff for the amount claimed. Defendant company-appeals.

There is certainly no express repeal of Act 225 of 1918 by Act 298 of 1926. The sole question «for determination, therefore, is whether the former act was repealed by implication or was superseded by the later act. The provisions of Act 298 of 1926 have particular reference to building contracts, and to the creation or preservation of liens or privileges in connection therewith, for the protection of contractors, subcontractors, architects, laborers, furnishers of materials, etc.; also to the method of procedure to enforce liens and privileges created under that act.

The foregoing are the general purposes of the act which are stated more specifically, and at the same time with more amplitude in the body of the act. Section 16 of the act indicates with more precision what is the real object of the act. This section says:

“The manner and method of creating and preserving liens and privileges created and specified in this act shall be exclusive, and all laws and parts of laws inconsistent with the provisions of this act as well as laws or parts of laws on the same subject matter, including provisions of the Civil Code of Louisiana inconsistent herewith are hereby repealed.”

The act then proceeds to repeal expressly Acts 139 of 1922; 262 of 1916; Act 229 of 1916, and Act 230 of 1924. The acts which are thus specifically repealed relate to building contracts and the preservation of privileges in connection therewith for the protection of contractors, subcontractors, architects, laborers, etc. This express repealing clause, and the language used in Section 16 which precedes this repeal, indicate quite clearly that in enacting Act 298 of 1926 the Legislature intended to deal with building contracts, and liens or privileges created and preserved thereunder and with all laws that might be inconsistent with that character of legislation.

Act 225 of 1918 is altogether different in its purpose and general provisions. That act makes no particular reference to building contracts and to the liens which are usually created, recognized and enforced under such contracts. The very title of Act 225 of 1918 refers to “a surety on any bond, whether in a judicial proceeding, building contract or otherwise.” Its purpose is not to create or recognize privileges in building contracts or to provide any procedure for their enforcement. The real purpose of that act is to make it imperative on the surety, whether in a judicial proceeding, building contract, or otherwise, to promptly pay its obligation under the bond furnished, when the principal therein fails to discharge his or its obligation. When the principal fails to pay as per the terms of his contract, and the surety defaults on his bond, the claimant is entitled to recover ten per cent on the amount recovered against the surety, as attorney’s fees.

Section 10 of Act 298 of 1926, it is true, makes provision for the payment of attorney’s fees when a concursus proceeding has been invoked under its provisions. The fee as provided for in that section, is to be recovered against the fund deposited or against the surety but it is not to be paid in preference to the claims of subcontractors, journeymen, laborers, etc. Evidently there is no conflict or antagonism between this provision of the act and the right of action given under Act 225 of 1918 to the claimant for attorneys’ fees against the surety for his failure to meet the obligations of his bond. Section 14 of Act 298 of 1926 says:

“Nothing in this act shall so be construed as to¡ deprive any claimant of his right of action against the surety signing any bond furnished in connection with any building contract or such contract, or against the principal obligor thereunder, etc.”

Obviously there is nothing inconsistent here with the right of action conferred by Act 22’5 of 1918 on the claimant for the recovery of his attorney’s fees against a surety. After the word “thereunder” quoted in the foregoing clause of Act 298 of 1926, the act proceeds to say: that this right of action .therein mentioned, shall accrue at any time after the maturity of the claim of such claimant, and that the claimant must record his claim and serve a copy thereof on the owner and surety thirty days prior to the institution of his suit. The claim, as required by Section 14 of said act must be recorded as provided in Section 2 of that act.

This requirement is demanded for the preservation of the lien of such claimant. This section 14 of the act, as we read it, has no reference whatsoever to the claimant for attorney’s fees under Act 225 of 1918. Its purpose was to require recordation of claims for the preservation of liens or privileges, which was the real purpose that prompted the enactment of Act 298 of 1926. There is nothing inconsistent or conflicting between the two acts which could be construed as destructive of the rights of plaintiff to demand attorney’s fees in the present suit.

In Broussard vs. Henderson, 120 La. 542, 45 So. 430, the Court said:

“It is equally well settled that in determining whether one law conflicts with another it is necessary to consider the purposes of both acts, and if it appears that the law last mentioned is to cover the whole subject matter dealt with and to modify and supersede those previously enacted, then the modification or supersession results and must be declared.”

The purposes of the two acts as hereinabove commented upon, are different and their provisions are not inconsistent or conflicting. There is nothing in the Act of 1926, the last law enacted, showing that its provisions were intended to cover the subject matter of the earlier statute whose sole object was to force a prompt payment by the surety on his bond upon the failure of his principal to discharge his obligation, and to impose upon the surety ten per cent attorney’s fees on the amount recovered after the expiration of thirty days from the service of notice of the demand by the claimant on the principal and his surety. These provisions of Act 225 of 1918 are not modified or superseded by the provisions of Act 298 of 1926, and therefore no modification or supersession resulted from the later enactment so as to bring this case under the ruling announced in Broussard vs. Henderson.

It iis axiomatic that the law does not favor repeals by implication. The general rule is that statutes should be construed together, and if possible, their differences reconciled. In the instant case there is no repugnancy between the two acts, and no reason calling ^for a repeal of the earlier act by implication or otherwise.

The judgment rendered in favor of the plaintiff for the attorney’s fees claimed, is therefore affirmed, with cost.


source: Caselaw Access Project

author: ELLIOTT, J. ELLIOTT, J.

license: Public Domain

text:
    No.-
    First Circuit
    WOLF v. LOUISIANA MILK PRODUCTS CO., INC.
    (April 11, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 160(a).
    The refusal of injured employee to undergo a general anaesthetic for the purpose of relieving the condition of his knee hy an operation fraught with danger will not affect his right to recover compensation under the Workmen’s Compensation Act No. 20 of 1914, as amended.
    2. Louisiana Digest — Master and Servant —Par. 159, 160(j).
    Where the evidence denotes a reasonable certainty that injured employee is permanently disabled to do work of any reasonable character due to an injury to his knee he will be given compensation under the Workmen’s Compensation Act No. 20 of 1914 as amended, for sixty-five per cent of his wages for four hundred weeks not to exceed the period of disability.
    3. Louisiana Digest — Master and Servant —Par. 154, 159.
    Where injury to employee’s knee renders the leg so useless that he is apparently permanently disabled he is entitled to compensation under Sec. 8, Subsection (b), of the Workmen’s Compensation Act No. 20 of 1914 as amended; Sec. 8, Subsection (d), stating that “The permanent total loss of the use of a member shall be equivalent to the amputation of a member” having no application to this case.
    Appeal from the District Court, Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by Lewis Wolf against Louisiana Milk Products Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Sachse and Darsey, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret and Brooks, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Lewis Wolf, an employee of Louisiana Milk Products Co., Inc., on the 10th of July, 1926, while engaged in doing the work he was employed to do, fell on the floor of the ice cream vault and injured his right knee.

The injury was a bad one. Plaintiff alleges in his petition that he has not been able to walk since, except on crutches, a period of about nine months, counting from the time of the injury to that of the trial. That because of his injury he is totally incapacitated to do work of any reasonable character. That his injury is incurable and produces in him a permanent disability. That he was receiving as wages at the time of the injury $125.00 a month. He claims compensation at sixty-five per cent of his weekly wages, or $18.74 a week for a period of four hundred (400) weeks.

Defendant denies liability and alleges that plaintiff is a malingerer, and alternatively, if it is liable for any amount, that it is only for sixty-five per cent of his weekly wages for two hundred weeks.

There was judgment in favor of the plaintiff for sixty-five per cent of his weekly wages, or $18.74 a week, for the period of his disability, not to exceed four hundred (400) weeks, subject to twenty-six weeks already paid.

Defendant appeals.

The main dispute is as to the gravity of the injury, and whether ¡plaintiff is permanently disabled, as he contends.

The case was tried in the lower court on June 9, 1927, about eleven months after the injury. Plaintiff testified that his knee still hurt him sometimes at night to the extent that he was unable to rest.

That following his' injury he was confined to his bed at home for about eighteen days. That he then, on the instruction of the physician employed by defendant to treat him, went to the Hospital of Our Lady of the Lake, for an operation on his knee, and was in bed there for a couple of days. That he then, on the instruction of said physician, returned home and stayed in bed for about thirty days under treatment of the physician employed to treat him by defendant. That he can not use his right leg at all, can not bend his knee, and that it can not be bent except by force, which causes him great pain. That he had accepted and followed the treatment and instructions given him by each of the physicians employed to treat him. That the use of his leg has been entirely lost; that he is unwilling to submit to an anaesthetic because he fears to do so.

The evidence shows that defendant employed a physician to treat plaintiff at the time he Was first injured. That this physician had plaintiff’s case in charge for two months or more, and that no other physician examined him until after he had reported him to defendant as a permanent disability.

This physician testified that on calling at plaintiff’s home a couple of days after the injury he found his knee enormously swollen. That as the swelling continued he had plaintiff removed to the Hospital of Our Lady of the Lake, in Baton Rouge, and obtained several 30 cc. syringes full of a pinkish, straw colored fluid from his knee joint by aspiration, which he believes resulted from rupture of the knee capsule and the flow of the fluid into the tissues around the joint. That the removal of this fluid did not relieve plaintiff; his condition, however, slowly improved, the knee joint remaining very tender and painful. That his knee finally lapsed into a chronic condition which he treated for several months by every means he knew of, without success. He finally referred plaintiff to another physician for another kind of treatment which was also without effect. That the muscles of plaintiff’s leg had apparently atrophied somewhat from disuse of the thigh and calf. That there is no injury to the bone. That plaintiff’s leg stiffened gradually, finally becoming inflexible, which condition he saw coming on, and informed plaintiff that such would be the result. That the pain of which plaintiff complained is real and not assumed. That plaintiff suffered from chronic arthritis of the right knee, due to his injury, and will not, in his opinion, substantially improve, but will be a cripple for the rest of his life, suffering some pain at Intervals. That plaintiff may get so he can walk and may not. That fixation of his knee by force may be the means of stirring up infection, if any is present at the time, and cause serious trouble. That having treated plaintiff so long and studied his case so closely it was not necessary for plaintiff to submit to an anaesthetic in order for him to properly classify his condition, and he had so informed plaintiff. That he had reported plaintiff’s condition correctly to the defendant. His report to the defendant that plaintiff’s injury was permanent is in the record dated July 10, 1926.

A witness testified that plaintiff had been a steady worker and was industriously disposed.

The Court, on motion of the defendant, about two weeks after the suit was filed, appointed a bone specialist to examine plaintiff’s knee. This physician made an examination and reported to the Court that he found no injury to the bone. His report, received without objection, states that plaintiff held his knee at the time, at an angle of about 175 degrees, with the pattella apparently fixed. That by diverting plaintiff’s mind he was able to flex the knee to an angle of about 160 degrees and that when plaintiff was not thinking about it the pattella was perfectly free. That plaintiff was at the time incapacitated for doing any work which necessitated walking or standing. That most of the stiffness in plaintiff’s knee, was, in his opinion, due to voluntary muscular spasm, and was not permanent but would subside under treatment.

He was not sure of the above, because in .order to be sure, he says, he would have to examine plaintiff’s knee under an an-aesthetic. He gave it as his belief that if plaintiff would not submit to an anaesthetic for the purpose, that his condition was seventy-five per cent voluntary.

This report is prima facie of the fact therein stated. Act 20 of 1914, Section 9, amd. Act. 38 of 1918.

Two other physicians in the employ of the defendant examined plaintiff; one during the month of October and the other during November, 1916. These examinations were approximately three and four months after the injury. One of the physicians testified that he had obtained about thirty degrees of flexion of the knee under pressure, the. plaintiff complaining of pain under the pressure. That at the time of his examination he noticed mark spasm of the muscles of plaintiff’s thigh. He did not consider plaintiff a permanent disability at the time, and told him to throw his crutch away and get a stick, and to get a little confidence in himself.

At the time of the trial he saw plaintiff’s leg examined by other physicians and his former opinion was not changed.

The other physician examined plaintiff and treated him about three months. The treatment did not terminate until five months before the trial. This physician testified that on his first examination he obtained a knee flexion of about twenty or twenty-five degrees, the plaintiff holding his leg rigid and complaining that the flexion caused him pain. He was satisfied that plaintiff did not try to use his knee as he was directed to do, and in that way did not co-operate with him.

He wanted plaintiff to submit to an anaesthetic at the time he was treating him in order that he might satisfy himself whether his knee was really inflexible, and if found to be so from disuse, to flex and commence a movement, but plaintiff refused. It was his opinion that plaintiff was not the permanent disability that he pretended to be.

Both these physicians gave it as their opinion that an anaesthetic was the best and surest way to determine whether plaintiff’s leg was really inflexible, and if found to be so from disuse, to flex and commence movement.

A witness testified that some months after the injury he saw plaintiff walking on the streets of Baton Rouge without limping and without any aid except a walking stick, but it appeared as if his leg was a little stiff. He believed that he had seen him doing this more than once.

The physicians, with some divergence as to the degree of risk, agree, that an anaesthetic sufficient to bring about involuntarily a complete relaxation of plaintiff’s muscles, would be attended by appreciable risk to his life. That even if the risk to life be safely passed, there would still remain some uncertainty as to consequences. The knee might be in fact inflexible and remain in that condition. Then again, if the stiffness was found to be due to disuse, the flexion by force might result in injurious consequences of a permanent nature, the result of which might be beyond the ability of the physicians to control.

In such a situation it has been held in a number of cases, that the refusal of an injured party to undergo a general an-aesthetic for the purpose of relieving his condition by an operation, was not unreasonable. That under the law an injured party can not be compelled to submit to it as a pre-requisite to the award of compensation. See Bronson vs. Harris Ice Cream Co., Inc., 150 La. 455, 90 So. 759; Addison vs. Powell Lumber Co., 1 La. App. 211; Reeves vs. Deitz, 1 La. App. 501; O’Donnell vs. Fortuna Oil Co., 2 La. App. 462; Bossier vs. Louisiana Oil Refining Co., 3 La. App. 205; Hilliard vs. Merkel Construction Co., 4 La. App. 40; Martin vs. Wyatt Lumber Co., 4 La. App. 157; and J. A. Rodriguez vs. Standard Oil Co. of Louisiana, this day decided.

It is therefore necessary for us to determine the question of liability as best we can from the evidence found in the record, without the aid of an examination of the plaintiff under an anaesthetic.

Looking at this question, it appears to us that the physician who first treated plaintiff and had sole charge of his case for two months or more immediately after his injury, is in a better position to judge of the gravity of plaintiff’s condition than anybody else.

During the trial plaintiff removed hi3 clothing and showed his leg to the attending physicians and to the Court. The Couit saw his leg and knee and saw the examinations conducted by some of the physicians. Upon the whole the evidence in the case leaves a reasonable certainty of conviction that plaintiff is a permanent disability as to work of any reasonable character, and is unable to get about without the use of a crutch, and will be so, possibly for the balance of his life.

Defendant contends that even if ¡plaintiff has lost the use of his leg, he is not on that account entitled to recover but sixty-five per cent of his wages for 175 weeks, on the ground that “a permanent total loss of the use of a member is equivalent to the amputation of a member.''

Under the law, subsection (b) of Sec. 8 of Act 20 of 1914 (amd. Act 216 of 1924 and Act 85. of 1926) is not controlled by subsection (d), when under the facts an injured knee renders the leg so useless and cumbersome that it is necessary for the injured party to use a crutch in order to get about.

In O’Donnell vs. Fortuna Oil Co., 2 La. App. 462, the Court, on page 465 illustrating, said:

“If a laborer gets his foot cut off he would be entitled to receive compensation under the statute equal to sixty-five per cent of his wages for one hundred and twenty-five weeks; whereas if he gets his foot crushed it may remain sore and painful during the balance of his life, a'nd render him unable to work, except on crutches, thereby totally disabling him to do manual labor of any kind. In such case he would receive compensation during his disability.
“There is no injustice or inequality in that. If the foot is cut off, it is out of the patient’s way and he is left free from pain and in a position to use a substitute, as many men do.
“It is infinitely better for a man to have his leg or arm removed entirely from his body than for it to be paralyzed or injured and have to remain attached to the body as a constant perpetual hamper and menace to his activities. True, the surgeon’s knife might relieve the patient of his burden, but who has the right to say to him that he must undergo an operation, fraught as operations always are with more or less danger.”

The statute on the subject of compensation provides that compensation obtained by means of a false statement wilfully made, ceases upon conviction for having done so. It also provides that the employer condemned to pay compensation may, upon a proper showing, have the judgment modified after the lapse of time thereby prescribed. See Sections 20 and 37, Act 2'0 of 1914 (amd. Act 85 of 1926).

It is our conclusion that the evidence does not warrant us in holding that the judgment appealed from is erroneous.

Judgment affirmed, defendant and appellant to pay the costs in both courts.

ON REHEARING

ELLIOTT, J.

Plaintiff’s injury is limited to the use of his leg. In James vs. Spence & Goldstein, 161 La. 1108, 109 So. 917, the Supreme Court held that where only one member is involved in an injury, that Act 20 of 1914, Section 8, Subsection (d) (amd. Act 43 of 1922), to the effect that “the permanent total loss of the 'use of a member shall be equivalent to the amputation of a member” does not permit of the award of a greater compensation than that fixed by the law when amputation has taken place. And it seems from the language used in the opinion that a greater compensation than that fixed for the loss of the use of a member is not permissible under the law as it stands, even though there may exist a disability greater than would have been the case had amputation taken place. In this case the judgment appealed from classes plaintiff as a permanent total disability and fixes his compensation at 65 per cent of his weekly wages during the period of disability, not to exceed four hundred weeks. We hold that the evidence in the case leaves a reasonable certainty of conviction that the plaintiff is a permanent disability as to work of any reasonable character, unable to get about without the use of a crutch, and possibly would be for tho balance of his life, and we accordingly affirmed the judgment appealed from.

The decision was in harmony with the previous jurisprudence which prevailed in the Courts of Appeal, First and Second Circuits, to the effect that it was not the intention of the Legislature by the enactment mentioned, to deny to an injured party the compensation proper to the situation in which the injury received had left him. See Bryant vs. Texas Pipe Line Co., 1 La. App. 42; Wilson vs. Dubach Mills Co., 2 La. App. 249; O’Donnell vs. Fortuna Oil Co., 2 La. App. 462; Davis vs. Gillis, 2 La. App. 567; Franklin vs. Ernest Roger Co., 2 La. App. 764; Chandler vs. Oil Fields Co., 2 La. App. 778, etc.

Defendant contends that as plaintiff’s injury involves the loss of the use of but one member, his leg, that he can not under the language quoted from sub-section (d), be allowed a longer compensation than is provided for, had his leg been amputated, and that the allowance of compensation for the period provided for under subsection (b), is not in harmony with the decision, of the Supreme Court in the case 'above cited. We find that 'a lack of harmony does exist between the decisions of this Court and that of the Supreme Court, as to the period of compensation to which the plaintiff is entitled and we, therefore, place our decision in line with that of the Supreme Court. The compensation to which plaintiff is entitled under the law is that fixed by Act 216 of 1924.

Our former opinion and decree, and the judgment appealed from, are therefore amended and corrected, and plaintiff’s compensation is now fixed at 65 per cent of his weekly wage of $18.74 for a period of two hundred weeks instead of as originally ordered. The period of payment to commence July 10, 1926, and be credited with twenty-six weeks following said time of commencement, and as thus amended and corrected our original opinion and decree herein is reinstated and made the final judgment of this Court.


author: LECHE, J. ELLIOTT, J.

text:
    No.-
    First Circuit
    AMITE HARDWARE COMPANY v. PIERCE
    (February 15, 1928. Opinion and Decree.)
    (June 12, 1928. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 597.
    Where an audit of books would be necessary to determine the value of stock, and there is nothing in the evidence to show the value of the stock, the judgment appealed from is presumed correct and will be affirmed.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Amite Hardware Company against C. B. Pierce.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. S. Burns, of Ponchatoula, attorney for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   LECHE, J.

The present suit is for the recovery of a claim founded upon an open account. There is little if any difference between the parties as to the correctness of the account. Both parties admit that plaintiff corporation was to accept in part payment, a share of its stock held by defendant and the controversy between the parties mainly involves the amount of credit due defendant for that share of stock. It was understood between the parties that defendant upon delivering and transferring the share of stock to plaintiff, was to receive credit in a sum equal to the value of the stock, but the parties could not agree upon such value, and on trial of the case the District Court held that it was worth three hundred twenty-five dollars.

Defendant has appealed.

We have searched the record in vain for a note of evidence and therefore cannot say whether the finding of the. District Court on that subject is in our opinion, erroneous. Under these circumstances we can only affirm the judgment.

A judgment appealed from, in so far as founded on facts cannot be reviewed by this Court in the absence of the facts, and can only be affirmed as presumably ccrreet. Durke & Broussard vs. Crane, 112 La. 157, 36 So. 306. See also Wilson et al. vs. Ivy Lodge, 116 La. 537, 40 So. 864; Boyd vs. Bradley, 134 La. 223, 63 So. 883; Manning vs. Shaw, 154 La. 717, 38 So. 163; Stout vs. Henderson, 157 La. 169, 102 So. 193.

It is therefore ordered that the judgment appealed from he affirmed.

ELLIOTT, J.

Amite Hardware Company, Ltd., brought suit against Charles B. Pierce for $766.32 on account. The defendant 'for answer alleged that the account sued should be for $659.42, instead of the amount alleged by the plaintiff, and that same had been settled to the extent of $571.33 by an agreement between him and W. M. Schilling, president of the plaintiff, whereby said Schilling agreed to take a share of stock with .defendant held by plaintiff, at its book value, which was $571.33, the difference to be paid in cash. That the amount he owed, credited as above stated, left a balance of $167.09, and in payment of the same, he tendered in court the sum of $200.00 to cover the amount and the cost.

The Court rendered .judgment in favor of the plaintiff on account as prayed for, and subject to certain reservations, directed that defendant have credit for $325.00 on account of his stock. The defendant appealed.

The amount claimed by plaintiff on account was not disputed by defendant on the trial as a witness. The lower court rendered judgment in plaintiff’s favor and the evidence does not justify changing the amount.

The serious dispute between the parties on the trial was in regard to the amount of credit which defendant should have on account of his stock.

At the time of plaintiff’s organization, about twenty years ago, its capital consisted of sixty-one shares of paid-up stock at one hundred dollars per share. W. M. Schilling took and held all the stock except three shares, one of the three belonging to said Pierce. Mr. Pierce was also plaintiff’s secretary and general manager, and also its bookkeeper for many years following its organization, but for the last several years another party was employed as bookkeeper.

At the time defendant retired from his connections with plaintiff, Mr. Schilling agreed to take his share of stock and the price was to be credited against his account, but Schilling denies that he agreed to take it at the book value which defendant alleges and contends the agreement •was, that it was to be credited on defendant’s account at its actual worth and that it was not worth the amount claimed by defendant.

The defendant, who sets up an agreement, in exoneration of a liability, carries the burden of proof as to the fact of his exoneration. Civil Code, Art. 2232.

The defendant produced a statement of plaintiff’s assets and liabilities which purports to show that on March 16, 1926, on which day he retired from the business,, his share of stock was worth $571.33 1/3.

Plaintiff’s bookkeeper at the time testifies that in making up this statement all bad debts and doubtful book assets were left out and not included. Mr. Pierce, however, when all he says on -the subject is considered, does not take the position that there had been a definite agreement between him and Mr. Schilling as to the' value of his stock; his testimony is rather to the effect that no definite agreement was ever reached on that subject.

Plaintiff’s bookkeeper at the time defendant retired from his business, called as a witness and questioned in regard to a conversation which he had with Schilling about his agreement with defendant, says, in repeating what he said to Mr. Schilling, that Mr. Pierce wanted Mr. Schilling to take his share of stock at its face value; Schilling testifies that the agreement was that he was to take it at its actual value. He is corroborated to some extent by plaintiff’s present bookkeeper, and by his attorney. They state, in effect, that Mr. Pierce, in a conversation with them did not claim that Schilling had agreed to credit his account with the value which the books under his management showed his stock to ‘have. Another corroborating circumstance is the fact that when Pierce retired from the business, his share of stock was at the Security Bank, and he has not seen it since. It was never transferred to nor delivered to Schilling. Defendant says that Schilling never asked for it, and he was not sure that Schilling knew- where it was. He was not asked to, and therefore did not explain why the stock had been left at the bank.

The defendant has not established his contention, but he is entitled to credit subject to the reservation stated in the judgment appealed from, for the actual value of the stock at the time he left the business. Its actual value at that time is left by the evidence in uncertainty. The business had run down, its credit was impaired, and its assets reduced. It owned unencumbered real estate, but the actual value thereof is in doubt.

The District Judgé in acting on the matter, fixed the value of defendant’s share of stock at $325.00.

An audit of plaintiff’s books and an appraisement of all its property and 'effects by competent disinterested parties, 'the values relating back to March 16, 1528, would be necessary to enable us to intelligently review the judgment appealed from on that question.

It is our belief that the judgment appealed from does substantial justice to the parties on all the issues in the case, and therefore' the same should not be interfered with.

Judgment affirmed, defendant and appellant to pay the costs in both courts.


author: LECHE, J.

text:
    No.-'
    First Circuit
    HIBERNIA BANK AND TRUST CO. v. CHAMPAGNE, ET ALS.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes — Par. 218.
    The burden of proving want of consideration rests upon the defendant, maker of the note, who offers the plea as a defense.
    2. Louisiana Digest — Bills and Notes — Par. 125.
    The possession of a note held as collateral security, acquired before its maturity, vests in the holder, s.o far as the maker is concerned, the same rights that can be exercised by an absolute owner.

      Appeal from the Parish of Terrebonne. Hon. Robert B. Butler, Judge.
    Action by Hibernia Bank and Trust Co. against James J. Champagne, et als.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    J. K. Wright and H. M. Wallis, of Houma, attorneys for plaintiff, appellee.
    Wurzlow and Watkins, of Houma, attorneys for defendants, appellants.
   LECHE, J.

Plaintiff as holder in due course, sues uipon a note of Charles J. Champagne for the sum of fifteen hundred dollars, of date December 13, 1926, due six months after date to the order of Peoples Bank & Trust Company, endorsed in blank by said Bank, and payable at its office in Houma, Louisiana.

Charles J. Champagne maker of the note has since died and his heirs have been made defendants in the suit.

The defendants offer as special defenses: 1, want of consideration; 2, that if any consideration was given that the said Peoples Bank & Trust Co. is a creditor of defendants in a large amount and that said note was extinguished by compensation; 3, in the alternative, that if plaintiff herein is the holder of said note, it holds the same as collateral security, that plaintiff has other collateral security pledged for its claim against the Peoples Bank & Trust Company, and that such other collateral security should first be. exhausted before plaintiff can sue defendants and recover from them and 4, in the alternative, that if plaintiff is a holder in due course, respondents are entitled to a postponement of the collection of said note until the other collateral in the hands of said bank, have been exhausted.

After hearing evidence and argument, the trial judge rendered judgment in. favor of plaintiff, and defendants have appealed.

Taking these special defenses in the order in which they are pleaded (1) the burden of proving want of consideration rests upon the defendant, maker of the note, who offers the plea as a defense. Yowell & Williams vs. Walker, 118 La. 28, 42 So. 635. There is no evidence of any kind to support this defense. (2) It affirmatively appears that plaintiff acquired the note in due course, for a valuable consideration, and before maturity, as collateral security for loans made by it to the Peoples Bank & Trust Company, and therefore is free from any defense based upon equities between the maker and payee; (3) that this defense is based upon aq erroneous conclusion of law; and (4) that this defense is also based upon an erroneous conclusion of law.

The answer of defendants denies the truth of each of the five paragraphs or articles, which constitute all the allegations in plaintiff’s petition. Defendants have thereby virtually filed a general denial of all the allegations in plaintiff’s petition, and they have done this without reserving the right to qualify such general denial by the admissions which necessarily flow from the 'four special defenses which they subsequently plead, and which are above set forth in sqbstance, in this opinion. This system of pleading was abolished by the pleadings Acts No. 12'6, p. 225 of 1912, No. 300, p. 611 of 1914, and No. 228, p. 443 of 1912. The (purpose of these statutes is to compel the litigants to confine themselves solely to the trial of the real differences between then*, and to limit the taking of evidence, to the facts in dispute. Defendants’ general denial is inconsistent with their special defenses, and even their special defenses are inconsistent with one another.

Judging from the evidence admitted on the trial of the case and defendants’ argument in brief, we assume that their real defense is that they believe themselves entitled to compensation or offset on some claim which they hold against the Peoples Bank & Trust Company by the amount represented by the note upon which they are being sued, or vice versa. But this they cannot do, and they could not do even if the note was owned by the Peoples Bank & Trust Company, and was sued upon by the liquidator of the bank. See Peoples Bank vs. Mississippi & Lafourche Drainage District, 141 La. 1009, 76 So. 179. The principles upon which that decision rests are, that in law, the debts are not equally exigible and demandable and that in equity, an ordinary creditor of a bank which is insolvent, has no right of ' priority over the other creditors, to the assets of the bank.

Defendants also ask that in case plaintiff is recognized as holder in due course, plaintiff’s right to recover be held in abeyance until it first exhausts other collaterals which it holds as security for its claim against the Peoples Bank & Trust Company. This demand is not shown to be sanctioned by any principles of law or equity. It presupposes a right to compensation or offset, which does not exist, and it therefore need not be discussed.

The possession of a note held as collateral security, acquired before its maturity, vests in the holder, so far as the maker is concerned, the same rights that can be exercised by an absolute owner.

We believe that the trial judge has correctly decided the case and that the judgment which he has rendered should be affirmed.

It is accordingly ordered that the judgment appealed from be affirmed.


author: REYNOLDS, J.

text:
    No. 3270
    Second Circuit
    DAUTERIVE LUMBER CO., INC., v. BURNAMAN
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 340, 344, 347, 351.
    As against the positive testimony of the defendant “in the mouth of two or three witnesses shall every word be established.”
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Dauterive Lumber Company, Inc., against Alonzo B. Burnaman.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    B. T. Dawkins; W. C. Roberts, of Alexandria, attorneys for plaintiff, appellee.
    G. P. Whittington; Lee J. Nove, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit to recover $191.67 with legal interest thereon from January 22, 1927, on open account as the price of merchandise sold and delivered to defendant by plaintiff.

Defendant denied that he purchased the goods from plaintiff and alleged that he contracted with one Edgar Laborde to build a residence for him and that Laborde was to provide all the labor and material therefor; that the building contract was duly recorded as required by law; that the building was constructed by the contractor and accepted by him and his acceptance spread upon the records of Rapides Parish and published as required by law; and that if the material the price of which is sued for was used by Laborde in the construction of the residence he, defendant, is not liable therefor.

On these issues the case was tried and there was judgment in favor of the plaintiff as prayed for and defendant appealed.

OPINION

The record presents for our decision only a question of fact, namely: whether or not defendant purchased from plaintiff the goods • whose price is sued for.

The defense set up by defendant, that the building on which the material the price of which is sued for was used was erected by Edgar Laborde under contract between him and defendant has no application here for the reason that plaintiff is not seeking to hold defendant for the price of goods sold by it to Laborde, but for the price of goods sold by it to defendant himself, and with the purchase of which Laborde was in no way connected. •

S. J. Dauterive testified:

“Q. Mr. Dauterive, what position do you occupy with the plaintiff company?
“A. I am president and manager.
“Q. Are you familiar with the accounts of that concern?
“A. I am.
“Q. I hand you account against L. B. Burnaman showing a balance due of $191.67, and ask you if this balance is true and correct?
“A. Yes, sir, it is.
“Q. Is the amount shown on this account still due and unpaid, Mr. Dauterive?
“A. It is.”

H. F. Cariker testified:

“Q. Mr. Cariker, were you employed by the Dauterive Lumber Company, Inc., during the months of January, February and March, 1927?
“A. I was.
“Q. What position do you occupy with the Dauterive Lumber Company, Inc.?
“A. Salesman.
“Q. Do you know the defendant, A. B. Burnaman?
“A. I do.
“Q. During the months just stated, that is, January, February and March, do you recall any transaction or whether called on by Mr. Burnaman for your concern?
“A. I personally sold Mr. Burnaman the roof for this house being erected by Mr. Laborde out on Monroe street during that time.
“Q. Did you complete the transaction entirely and solely with Mr. Burnaman?
“A. I did.
“Q. Then Mr. Burnaman himself ordered the roof and materials?
“A. He did.”

Edgar Laborde testified:

“Q. Well, if the contract called for a roof to be furnished by Carroll, how is it you accepted a roof from the Dauterive Lumber Company?
“A. Because he bought it and I wanted to put on what he bought.
“Q. Then you were supposed to have agreed to that kind of roof?
“A. No, it was all paid, the difference. I told him he would have to pay the difference if he wanted to get the red.
$ ‡ ‡ $
“Q. You talked to Mr. Burnaman about this roof in Mr. Cariker’s presence?
“A. No, I don’t believe I did; Mr. Burnaman and myself talked about the roof before they came, and when those gentlemen came I went to work and left them talking together, and the next thing I knew the roof was coming, and he told me to put on the Johns-Manville roof. And it was there.
* # * *
“Q. You don’t know who ordered the roof, since you say you didn’t order it; you don’t know who ordered it from the Dauterive Lumber Company, Inc.?
“A. Mr. Burnaman told me he did.”

The evidence makes it clear to us that defendant purchased from the plaintiff the merchandise described on the account sued on, that the account is correct and that the amount has not been paid. The District Judge evidently took the same view of the case, as he gave plaintiff judgment; for the amount sued for. .

We find no error in the judgment appealed from and accordingly it is affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    LANDRY v. CITY OF BATON ROUGE
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625, 626; Automobiles — Par. 8.
    The finding of the trial court as to credibility of witnesses in an automobile accident case where clearly correct is affirmed.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by Alcide Landry against City of Baton Rouge.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

R. C. Cox, police officer, was driving a wrecker which was pulling a Ford roadster going eastward through North Boulevard in the City of Baton Rouge, and as the cars turned into St. Ferdinand Street, a collision occurred with Judge Alcide Landry, plaintiff, inflicting upon him severe personal injuries for which he has instituted this suit in damages against defendant city. His demand was dismissed, and he appeals.

The roadster was being pulled by means of a chain sixteen feet in length, and in thickness about two inches, which was tied to the wrecker. The roadster had no power of its own; it was a dead car. The chain between the wrecker and roadster was slack and touched the surface of the street, or nearly touched it, about twelve feet of its length'. The .wrecker was traveling at approximately eight miles an hour, and naturally the roadster was following at no faster rate of speed.

Plaintiff testified he was on the west corner of St. Ferdinand Street and proceeded to walk eastward across that street. His version of the occurrence is that in going across he walked in front of the wrecker and as he approached to about ten feet or more towards the eastern curb of St. Ferdinand Street, he was cut off by a car which he afterwards learned was this roadster; that as he was being blocked by that car, he started to retreat, was caught or pulled by the chain and was knocked by the fender of the car across the chain. Suarez, a witness for plaintiff who saw the accident, also says that plaintiff, as he was crossing the street, passed in front of the wrecker, and so testifies Baker, another witness for plaintiff who was standing on the north side of North Boulevard at some distance from the spot where the collision occurred. At the time this accident happened the sun was shining and the weather was clear, still as often occurs in such cases, we have a quite different version of the occurrence hy other witnesses who testified in the case.

R. C. Cox who was driving the wrecker, says plaintiff made a motion to step off the banquette into the street until he “got by,” and stood there; that as his car “went” by him he felt a jerk on the chain, applied the brakes, stopped, looked back, and that plaintiff was laying with his head toward the west side of St. Ferdinand Street, close to the chain with which the other car was being towed. This witness says he did not see when the Judge “was hit.” It appears, however, from the narrative he gives of the accident that the wrecker had passed ahead of Judge Landry when he was struck, and that he must have been between the two cars as it is clearly shown that he was caught or pulled by the chain which was pulling the roadster.

J. P. Baron, the driver of the roadster, is more specific in his testimony, and we believe was in a better position than was the driver of the wrecker to see what really occurred in this unfortunate accident. He says when he saw Judge Landry he was behind the wrecker and “tried to pass in between the two cars;” that his car was directly behind the wrecker, and that when he saw the Judge, he swerved his car a “little bit” out of the way to pass him, applied the brakes, the chain was tightened, Judge Landry fell, and that he stopped his car. He says plaintiff walked into the chain.

N. J. Bergeron, witness for defendant, office boy in the mailing office of the Standard Oil Company at Baton Rouge, says he was walking up on St. Ferdinand Street, April 23, 1927, was going to his work, and saw the accident. He says he saw the wrecker as it turned the corner and came into St. Ferdinand Street. His testimony is that “wrecker had passed North Boulevard, and just as it passed Judge Landry walked into the chain.” He further says that the driver of the wrecker put on the brakes which tightened the chain that struck plaintiff against his stomach, throwing him on the front wheel of the roadster. The cross-questioning of this witness shows he had no interest whatever in the outcome of the suit, and we are satisfied that he testified honestly to what he saw of the occurrence. His testimony shows that' plaintiff passed behind the wrecker as was testified to by Baron, the driver of the roadster, and as appears from the evidence of Cox, driver of the wrecker.

Plaintiff it is shown was knocked into unconsciousness by the car or chain, and was, a while after, taken to the Lady of the Lake Sanitarium. Baron, driver of the roadster, says he saw him there later on the same day; that plaintiff stated he could not blame anybody for the accident and said: “The chain threw me.” Baron says Captain Comeau and Bill Sevario were present when this statement was made at the Sanitarium by plaintiff. Sevario testifies that Captain Comeau asked plaintiff how the accident had happened and that plaintiff said: One car passed him and he started to cross the street, that he didn’t see the other car behind it, and he stumbled and fell on a. chain up against the curb. Plaintiff testified that he had no recollection of having ever made such a statement, but was positive that he had never said to anybody that he passed behind the wrecker.

The version of the occurrence as given by plaintiff would lead to the conclusion that he had passed ahead of the wrecker, but about ten feet before he had reached the eastern side of St. Ferdinand Street, the roadster had swung around in a semicircle, and had actually blocked his way, forcing him to retreat, thus entangling him in the chain that was pulling the roadster.

It is shown, and unquestionably so, that the cars were moving at about eight miles an hour, a moderate speed, when the collision happened. It is hard to believe that at such a speed the rear car could have suddenly swung around the front car, and thus intercept and force plaintiff to step backward as testified to by him. This might be possible but is not probable. From the situation of the parties, and the conditions existing at the time, it is more rational to believe that plaintiff was for a moment, as it sometimes happens, oblivious of his surroundings and unconsciously walked between the cars into the chain and suffered the injuries of which he complains.

The testimony of defendant’s witnesses and the statement of plaintiff at the Sanitarium support the foregoing conclusion of fact, and this clearly entitles defendant city to an affirmance of the judgment. If we were to discard this conclusion, as a secondary finding, we would be forced to hold that the record shows that the testimony is, at least, very contradictory and conflicting, thus relegating the solution of the issue to the veracity of the witnesses who have testified in the case. A question involving the credibility of witnesses, it is well settled, falls peculiarly within the province of the trial judge, and in such cases where the testimony is conflicting or irreconcilable, an appellate court will not interfere in the finding of fact arrived at below, and will affirm the judgment appealed from, which, for the foregoing reasons is hereby affirmed in the instant case with cost.


text:
    No.-
    First Circuit
    KAYS KASH STORE v. HILDERBRANDT
    (May 8, 1928. Opinion and Decree.)
    (June 12, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 626. The finding of the trial court as to the credibility of witnesses and matters of fact being clearly correct is affirmed.
    Appeal from the Parish of Calcasieu. Hon. Thos. E. Porter, Judge.
    Action by Kays Kash Store against Jack C. Hilderbrandt.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Robert R. Stone, of Lake Charles, attorney for plaintiff, appellee.
    W. C. Braden, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

In this case, which is one of fact, the District Judge rendered judgment for plaintiff in the following opinion:

“The plaintiff, Kay’s Kash Store, alleged that they purchased a ‘Superior’ refrigerating machine from the defendant, Jack C. Hilderbrandt, for $465.67, paying therefor in cash $124.50, and giving his note for the balance $331.17. The plaintiff further alleged that the machine iproved unsatisfactory, and that it was taken by the vendor, who agreed to refund the cash part of the purchase, price, and who cancelled and surrendered the note for the unpaid part of the purchase price.
“Upon the defendant’s refusal to return the .cash installmem, the plaintiff brings this suit to recover same. The defendant. in his answer sets up an agreement whereby the machine he had sold the plaintiff was to be. removed, and another installed in its place, and the money which the plaintiff had paid on the old machine was to be applied on the purchase price of the new one.
“The case turns altogether on the question of the veracity of the witnesses. The plaintiff testified positively that he entered into no agreement whereby the defendant was to install a second machine. On the. contrary, he testified that the defendant promised to return him the money he had paid on the first machine, and that Mr. T. G. Trotti, who held the plaintiff’s notes, turned them over to him marked ‘cancelled,’ and that Mr. Trotti told him that there had been a settlement with the people who had sold Mr. Hilderbrandt the machine he had taken back from Kay’s Kash Store. Mr. T. G. Trotti, who discounted the notes of Kay’s Kash Store for the unpaid part of the price of the first machine, testified that while he had no personal knowledge of the transaction, and while' his records showed no authority for his returning the notes to Kay’s Kash Store, he felt certain that he had such authority, or he would not have surrendered the notes. At any rate, the surrender of the notes thus given for the unpaid part of the purchase price of the first machine, which was unsatisfactory, was approved by Mr. Hilderbrandt, for he and Mr. Trotti had a settlement as to the surrender.
“Mr. Hilderbrandt testified as to the subsequent contract between him and the plaintiff, whereby he was to furnish another machine to take the place of the one which would not satisfactorily refrigerate the plaintiff’s counter. Mr. Hilderbrandt denied positively any agreement to return any money paid him by the plaintiff. Mr. Hilderbrandt, in paragraph 10 of his answer, which was duly s.worn to by him, admitted that he returned to the plaintiff the notes executed by the plaintiff in part payment of the first machine. In Mr. Hilderbrandt’s testimony he denied authorizing, or having anything to do with the return of these notes to the plaintiff, and testified that he would not have permitted their return had he known that Mr. Trotti was about to do so.
“The fact that the defendant’s testimony on this material point is in direct conflict with the sworn admission in his answer, seriously affects the weight that would be given his testimony.
“Mr. Sullivan, the brother-in-law of Mr. Hilderbrandt, testified that there was an agreement between the parties whereby the first machine was to be taken out and another machine installed instead. When asked what kind of a machine the defendant was to install for the plaintiff, the witness replied: T guess he told him, I didn’t hear it.’ This witness testified that at that time Mr. Hilderbrandt was handling only ‘Superior’ machines, which was the kijid of machine that had been furnished to plaintiff in the first instance, and which had been unsatisfactory.

Mr. Berrian testified in substance as did Mr. Sullivan.

“Mr. Hilderbrandt, the defendant, admitted that when the first machine, a ‘Superior’ was taken out, the plaintiff refused to. permit another machine of that | same make to be installed, and at that time, according to the testimony of Mr. Sullivan, the defendant was handling no machine other than the ‘Superior’ although later the defendant handled ‘Copeland’ machine, and it was this kind that he tendered the plaintiff.
“All three of the defendant’s witnesses agreed that after the first machine had proven to be lacking in refrigerating ability and had been removed, the plaintiff refused to permit any machine to be installed until he had tried out the counter with ice. The plaintiff’s explanation of this statement is that he didn’t want any machine at all until he had tried the refrigerator counter with ice.
“I believe that the reason for testing the counter with ice was to see if it could be refrigerated with ice, and if it could be properly cooled with ice, the plaintiff did not want any machine at all after the machine that he first purchased had failed to properly cool the counter. Even at this time plaintiff still refrigerates his counter with ice. The defendant testified that at the time of the alleged agreement to put in a second machine he was in a position to put in either a ‘Copeland’ or a ‘Superior.’ Although the defendant depended on the alleged subsequent contract above set forth, he tried to and succeeded in getting in some evidence from himself to the effect that the original contract gave him the right to install any kind of machine he wanted to, so long as it refrigerated the counter. This is denied by the plaintiff, who claims to have purchased a ‘Superior’ machine.
“I believe that the record shows that plaintiff is right in his contention. It would be most unusual for a man to make the contract claimed by defendant, and certainly it would be most unusual for two parties to agree on a sale of a “Superior” machine, with the right to furnish any other machine in case that one proved unsatisfactory, especially when defendant’s own witness, Sullivan, testified that the defendant at the time handled only the ‘Superior’ machine.
’’The plaintiff testified to the effect that the sale of the first machine was can-celled, and the cash payment was agreed to be refunded him. This evidence ■ is strongly corroborated by the fact that the notes given for the unpaid part of the purchase price of the first machine were returned to the plaintiff at the instance of the defendant.
“The effect of defendant’s testimony is materially weakened by the fact that he attempted to change his sworn admission in his answer on this point. That leaves the testimony of the defendant’s brother-in-law and that of his former employee, as opposed to that of Mr. Kay who is supported by the presumptions of fact already recalled, the burden of proof being upon the defendant, to establish by a fair preponderance of the evidence the subsequent agreement.
“Carefully considering the evidence of all the witnesses, and my knowledge of them, and the presumptions of the inferences of fact detailed, I have reached the conclusion that there was no. subsequent agreement whereby the plaintiff agreed to purchase any machine, but on the contrary, the first sale was cancelled and annulled with an agreement to refund the cash purchase price of same.”

The controverted questions between the parties to this litigation are clearly stated in the opinion, and after a careful examination of the record, we find that the Court has made an extensive and judicious analysis of the evidence, and has correctly solved the issues presented herein.

In the first opinion the Court rendered judgment for defendant, and on rehearing reversed its original finding by decreeing judgment in favor of the plaintiff. Counsel for defendant, in a very able presentation of his contentions, claims as the contract is restricted to one of fact, the Court of necessity gave evidence to the witnesses for the defendant, which cannot be affected, he contends, by the subsequent opinion of the Court, in which he makes reference to the veracity of the witnesses in reaching his final conclusion. The first part of the opinion, taken independently of the comprehensive views that follow, would seem to support the assertion of counsel in that respect. Further on, however, in the opinion, it will be noted that the Court, in arriving at the conclusion, was not guided solely by his knowledge of the witnesses, but was also led in that direction by the “presumptions of the inferences of fact detailed” in the evidence. We have indulged in this allusion to this particular feature of the case, because counsel for defendant in his well prepared brief, stated that he would not prosecute this appeal if the case for its proper solution depended exclusively on the question involving the veracity of the witnesses, on which he concludes the Court altogether based it opinion. This is not however, the case, as the findings below are not grounded exclusively on the credibility of the witnesses, but actually find a larger basis in the inferences of facts and circumstances which guided the Court in fixing liability on defendant. We have reached the same conclusion after a careful reading of the record, and as' we think, a proper appreciation of the evidence.

Even if we were to conclude that the reversal by the Court of its first finding left the veracity of defendant’s witnesses unaffected by the second opinion, still we find there remains, taking into consideration the testimony of Berrian a witness for defendant, a preponderance of the evidence showing .that if plaintiff had really agreed to accept another machine, this agreement would be effective only in case plaintiff after testing the counter with ice, found that it would respond to mechanical refrigeration. In this regard we are considering the case of defendant in its most favorable aspect, but we cannot, however, be dislodged from the conviction that this issue has been correctly determined adversely to his contentions.

The defendant pleads, and admits, that the notes that had been given by plaintiff for the credit portion of the price of the machine had been returned to plaintiff and cancelled. These notes were in the hands of Trotti, and no doubt were returned at the direction or with the consent of defendant, who claims however, that the machine he originally sold was, as per agreement with plaintiff, to be substituted by a new machine. If such had been the contract it cannot be believed that the notes would not have been retained to secure the credit portion on this new machine which defendant says, would, under the agreement, have been substituted for the identical price that had been fixed for the first refrigerator. In his answer defendant says he stated to plaintiff that the cash payment he had received on the price of the first machine he would'allow as a credit on the new machine. This (part of the answer makes it quite evident, that if such had been the agreement, the notes would not have been returned, nor the original contract cancelled, but would have been retained to prevent the deferred payments on the substituted machine. These considerations, grounded as they are on the pleadings of the defendant, and the facts qf record, have reinforced us in our conviction that the findings below are legal and just.

Counsel for defendant has made such an earnest appeal to this Court, that we have gone extensively into' this case even at the risk of burdening the record with an unnecessary lengthy decision.

There are no legal reasons that wé can finí} to justify a reversal, and the judgment appealed from is therefore affirmed with cost.


text:
    No.-
    First Circuit
    RILEY v. COWGILL
    (June 12, 1928. Opinion and Decree.)

      (.Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 160 (i).
    Petition for compensation for parents of deceased employee twenty years ol • must allege affirmatively the non-existence of either widow, child or children to their deceased son in order to state a cause of action under the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 216 of 1924.
    Appeal from the Parish of Washington. Hon. Prentiss Carter, Judge.
    Action by Joseph -Riley and Laura D. Riley against H. J. Cowgill, doing business as H. J. Cowgill Gravel Company.
    There was judgment for plaintiffs and defendant appealed.
    Judgment reversed.
    L. H. McGehee, of McComb City, Miss., and Morgan and Simmons, of Covington, attorneys for plaintiffs, appellees.
    Miller and Richardson, of Bogalusa, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiffs instituted this suit for compensation for the death of their son, Elton Ray Riley, which they allege occurred July 14, 1926, while he was in the service of defendant company as an employee.

The defendant company filed an exception of no cause or right of action, thereafter filed its answer, with full reservation of all the benefits or advantages that might accrue to it under the exception, and renews the exception by filing it in this Court.

According to the allegations of plaintiffs’ petition their son was killed on the 14th day of July, 1926. Their right of action, if any they have, must- therefore be determined under Act 216 of 1924, as Act 85 of 1926, the last amendatory law of the compensation statute, had not gone into effect at the time of the accident.

Under Section 8 of Act 216 of 1924, par. 2, sub-par. G, the father and mother of the deceased employee have the right to recover compensation when they are actually dependent on him for support: “If there be neither widow, widower or child.”

The right to recover for the death of a human, being was unknown to the Roman or Spanish system of laws. This right of ‘action was first granted by Act 270 of 1855, and has been enlarged by subsequent statutes, amendatory of Article 2315, C. C., but these laws have always been, strictly construed. See Sue. of Block, 137 La. 302, 68 So. 618, where this subject is ably, elaborately and exhaustively discussed by Chief Justice O’Neil. In the instant case the plaintiffs are claiming' compensation for the death of a human being under statute law and which must likewise be strictly construed in so far as the right of action of the claimants is concerned.

In cases of most every character, it has been usually held as a genéral proposition, that under our system of pleading and practice all the facts which are necessary to be proved in order to maintain an action must be alleged. Arthur vs. Alex. Lhr. Co., 143 La. 207, 78 So. 469; Whittington et ux vs. La. Sawmill Co., 142 La. 322, 76 So. 754; Gros et al. vs. Millers’ Indemnity Underwriters, 153 La. 257, 95 So. 709. In some cases it has been held that such averments are essential, even when a negative is involved. Winton Oil & Sulphur Co. vs. Gray, 135 La. 1050, 66 So. 357.

In the case of Blackburn vs. Louisiana Railway and Navigation Company, the mother was suing for damages in the right of her deceased son under Article, C. ‘C. 2315, as amended by Act 120 of 1908. In that case the Court held that the mother suing in the right of her deceased son, alleged to have come to his death through the fault of the defendant, should negative the existence of minor children and a widow of deceased. In the case of Gros et als. vs. Millers’ Indemnity Writers, 153 La. 257, 95 So. 709, the suit was brought for compensation under the Employers’ Liability Act. In that case plaintiffs had failed. to allege affirmatively the nonexistence of the other persons, who, under Section 8 of that Act, were entitled to a priority of action. For failure to make these allegations which the Court considered essential the Court maintained an exception of no cause of action, dismissing the case as in case of non-suit. It is true that the plaintiffs allege here that their son, Elton, when killed, was a minor, but the allegation is made that he was twenty at that time. Under Article C. C. 36, males are adults at fourteen and may enter into the contract of marriage at that age. C. C. 92. At the age of twenty, which Elton had attained at his death, he could well have been then married, and at his demise could have left a widow, a child or children. The allegation that he was a minor does not take away such possibilities as it is not uncommon for men at twenty to be married and to have children. The petition totally fails to allege that he left neither widow, child or children, and the evidence is equally silent on this question. Under the decisions hereinabove cited, plaintiffs were required to allege affirmatively the non-existence of either widow, child or children to their deceased son, to entitle them to compensation under the provisions of Act 216 of 1924. These allegations were essential to support a cause or right of action. It is true that defendant, after filing its exception of no cause of action, filed its answer, but in the answer, it must be noted, full reservation was made of the benefit which might flow from the exception, and such a reservation precludes the idea of a waiver of the exception. Even if -defendant had filed its answer after filing the exception and without making the reservation, the exception could not be treated as an answer, and no waiver of the exception could have resulted. Borrow vs. Grant’s Estate, 118 La. 956, 41 So. 220. However, that may be, the defendant had a right to plead the exception of no cause of action in this Court, as such an exception may be filed at any stage of the proceedings. Veasey vs. Peters et al., 142 La. 1012, 77 So. 948; Brown vs. Saul et al., 4 M. (N. S.) 434; La Casse vs. N. O. T. & M. R. Co., 135 La. 129, 64 So. 1012.

In passing over this issue we are not unmindful of the doctrine which demands that the compensation statute should be liberally construed in favor of the employee. This principle has been recognized in several decisions of our Supreme Court, but this principle cannot be made to apply to an issue involving the right of the claimant to sue, as this question strikes at the foundation of the demand, because if judgment Were to be rendered for a claimant not entitled to compensation, the real beneficiaries, by reason of priority or preference under the provisions of the statute, could not be cut off from their right to demand relief under the law against the defendant herein. The issue therefore involves a matter of allegation or at least of proof, that it is impossible for us to overlook, and which compels us to maintain the exception of no right or cause of action filed by defendant. This view of the case does away with the necessity of considering the other questions urged as a defense.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further decreed that the exception of no cause or right of action be maintained, and the action of the plaintiffs be dismissed as in case of non-suit at their cost in both courts.


text:
    No.--
    First Circuit
    LA. TIRE COMPANY, INC., v. TODD
    (June 12, 1928. Opinion and Decree.)

      (Syllabus 6y the Editor.)
    1. Louisiana Digest — Payment—Par. 19,24.
    Defendant’s plea of payment, is an admission that he did at one time owe plaintiff for goods and merchandise, and this plea opened the door for the admission of the evidence by plaintiff of just how much defendant owed him.
    2. Louisiana Digest — Payment—Par. 19, 21; Evidence — Par. 351.
    Where plaintiff proved his claim with certainty by a preponderance of evidence, considering that it is practically admitted by the plea of payment by defendant, and defendant has failed to sustain his defense of payment, there must be judgment for plaintiff.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    Action by Louisiana Tire Company, Inc., against A. G. Todd.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Lindsey McDougail, of Covington, attorney for defendant, appellee.
   LECHE, J.

The demand in this case is upon an open account for two hundred fifty-five and 11/100 dollars. Defendant denies liability and urges specially a plea of payment.

The demand is set forth in a petition in stereotype form, partly written and partly printed, and we mention this because it evidently accounts for an inaccurate allegation complained about by the defendant. The petition sets forth that defendant is indebted to petitioner by reason of the fact that petitioner sold to defendant, a certain lot of merchandise between the dates of April 17, 1926, and June 6, 1927, at various times, amounting to two hundred fifty-five and 11/100 dollars. The itemized statement alleged to be annexed to the petition and actually annexed to it, shows a balance of account due April 17, 1926, then a series of sales of merchandise amounting to several thousand dollars, on which many partial payments were made, and the statement finally shows a balance due by defendant on July 23, 1927, amounting to two hundred fifty-five and 11/100 dollars. There is also annexed to plaintiff’s petition an affidavit stating that the claim in suit is for a balance of account.

When plaintiff offered proof of the correctness of its account, defendant objected on the ground that there was a variance between the allegation of the petition and the annexed account offered in evidence. We believe that the trial judge properly overruled this objection. The statement annexed to plaintiff’s petition does as a matter of fact, show an indebtedness by defendant of two hundred fifty-five and 11/100 dollars, and the affidavit also annexed to the petition, shows that this claim is for a balance of account. There was nothing here to take defendant by surprise, although the claim is alleged to be for merchandise sold from April 17, 1926, to June 6, 1927, when in point of fact the claim is only for a balance due on such merchandise.

We are familiar with the case of Abadie vs. Berges, 41 La. Ann. 281, 6 So. 529, which holds that a document annexed to a petition, does not inject into the petition an averment which is essential to support a plaintiff’s demand. The case of Davenport vs. Lemann, which was tried in the District Court, while the writer of this opinion was on that bench, and which was affirmed by the Supreme Court in Davenport Locomotive Works vs. Lemann Co., 118 La. 191, 42 So. 770, does not in our opinion, support the objection made by defendant. In that case the suit was upon a certain written contract and plaintiff attempted to prove another and a different contract.

Defendant’s plea of payment, is an admission that he did at one time owe plaintiff for goods and merchandise, and this plea opened the door for the admission of the evidence offered by the plaintiff.

We believe the plaintiff has proved its claim with certainty and by a preponderance of evidence, considering that it is practically admitted by the plea of payment, and that defendant has entirely failed to sustain his defense of payment, a burden which the law places upon him.

For these reasons the judgment appealed from is avoided and reversed and it is now ordered that plaintiff, the Louisiana Tire Company, Inc., have judgment against and recover of defendant A. G. Todd, the sum of two hundred fifty-five and 11/100 dollars, with legal interest thereon from judicial demand, as prayed for, and for all costs of court.


text:
    No. 3232
    Second Circuit
    SWANN v. SCALLAN CHARLES E. PRICE, Intervenor, Third Opponent
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sequestration—Par. 12; Courts — Par. 128.
    The value of the property seized, the title to which is in dispute, and the amount of damages demanded for the wrongful seizure thereof, constitute the amount in controversy and determine the jurisdiction of the appellate court.
    Ludeling vs. Garrett, 50 La. Ann. 118, 23 So. 94.
    2. Louisiana Digest — Sequestration—Par. 34; Attorneys — Par. 59.
    Where property belonging to a third person is illegally seized as the property of the plaintiff’s debtor, and the owner is compelled to employ an attorney at law to secure the release of his property from the seizure, he is entitled to recover as damages the reasonable fees of his attorney.
    White vs. Givens, 29 La. Ann. 573.
    Gilkerson-Schloss Com. Co. vs. Yale & Bowling, 47 La. Ann. 690, 17 So. 244.
    Soniat vs. Whitmer, 141 La. 235, 74 So. 916.
    Bailey vs. Williams, 158 La. 439, 104 So. 197.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C.. Culpepper, Judge.
    Action by Nicholas L. Swann against Albert Scallan. Charles E. Price, intervenor, third opponent.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. A. Carter; L. P. Whittington, of Alexandria, attorneys for plaintiff, appellant.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendant, appellee.
    Peterman, Dear and Peterman, of Alexandria, attorneys for intervenor, third opponent, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

The ¡plaintiff, Nicholas L. Swann, sued out a writ of sequestration against the defendant, Albert Scallan, and caused to be seized thereunder thirteen hogs of the property of intervenor, third opponent, Charles E. Price.

Price filed in the suit a rule, alleging that he was the owner of the hogs and praying that they be ordered released from seizure and that he be awarded attorney’s fees in the sum of $50.00 as damages.

Plaintiff, Nicholas L. Swann, without objecting to the manner in which intervenor third opponent came into the suit, filed an answer to the rule in which he denied that Price was the owner of the hogs.

The issues thus made up by the rule and the answer thereto were tried and there was judgment in favor of Price and against Swann ordering the thirteen hogs released from seizure and awarding Price damages in the sum of $50.00 as attorney’s fees. I

Prom this judgment Swann appealed.

Intervenor and third opponent Price has filed in this court a motion' to dismiss Swann’s appeal on the ground that the amount involved is less than the minimum jurisdiction of this court.

OPINION

ON MOTION TO DISMISS APPEAL

Both the value of the hogs seized and the damages claimed for illegal seizure must be considered in arriving at the amount involved. The value of the hogs was about $81.00 and the damages claimed was $50.00. Therefore the court has jurisdiction of the appeal and the motion to dismiss must be denied.

ON THE MERITS

The evidence shows that the thirteen head of hogs seized under the writ of sequestration issued against Albert Scallan belonged to intervenor, third opponent, Charles B. Price.

Price testified:

“Q. Mr. Price, this rule was brought for you, m which you claim that thirteen head of hogs were seized the first part of December in your possession. Is that right?
“A. Yes, sir.
“Q. Wasn’t Nicholas L. Swann present at thq time these hogs were seized?
“A. With the sheriff, yes, sir.
“Q. Were those your hogs?
“A. Yes, sir.
“Q. Where did you get them?
“A. Bought them from Mr. Wells.
“Q. How much did you pay him for the hogs?
“A. I paid him $107.00 and allowed him to take one of the hogs.
“Q. You paid him this for thirteen hogs, $107.00?
“A. Yes, sir.
“Q. Did you buy these hogs in good faith, thinking you were buying the hogs to be sold and delivered?
“A. Absolutely, yes, sir.
“Q. Out of the regular bunch you bought from Mr. Wells, did you sell any of them?
“A. Let Mr. Wells have one and two of the shoats — all about half starved. Bought them in good faith.”

Mr. Wells testified:

“Q. Mr. Wells, do you know Mr. Price who has just left the stand?
“A. Yes, sir.
“Q. He advised that he had thirteen head of hogs that were seized by the sheriff executing a writ of sequestration, and that he purchased these hogs from you. Did you sell him these hogs?
“A. Yes, sir.
‘‘Q. How much did he pay you for them?
“A. Well, I tell you, he came down home about ten o’clock one morning and wanted to buy some hogs I already had in the lot. I told him they were not for sale, but I would carry him down the road and sell him some hogs at Moreland. I took Mr. Price in the car with me and went to Moreland and there were eighteen head of them penned up. I said: ‘Price, I am going to give $107.00 for these hogs. I am going to take the boar out, and sell you just what I got, less the boar, $107.00.’
“Q. He paid you then $107.00 for the seventeen hogs?
“A. Yes, sir, eighteen in the bunch. He said he didn’t have the money, I said that’s all right, I’ll pay Scallan for the hogs and you pay me. later as you get the money. So he took the hogs and we came back to Willow Glen. He drove his truck and I put my negro .driver on my truck, and a couple of extra negroes, and we went down there and got the eighteen head of hogs about a quarter after twelve.
“Q. Well, I am asking you if you sold him those hogs delivered to him?
“A. Yes, sir.
“Q. He paid you $107.00 for seventeen head ?
“A. Yes, sir. •
“Q. Prom whom did you purchase them?
“A. Prom Mr. Scallan.
“Q. And you paid him $107.00 for eighteen head and kept one?
“A. Paid him that same day, that evening.”

This testimony is uncontradicted, except by that of plaintiff, Nicholas L. Swann, and he does not describe the hogs by mark or brand and his knowledge of the facts appears to be only general and not at all definite.

He testified:

“Q. Mr. Swann, are you the owner of the thirteen hogs found in the pasture of Mr. Price and seized by the Sheriff?
“A. Yes, sir.
“Q. Now, Mr. Swann, were those hogs removed from your place after you got out the writ of sequestration, after you filed suit?
“A. We filed suit after fifty-two were seized.
“Q. I am not talking about the fifty-two; I am talking about the hogs we are now in court on; thirteen old hogs?
“A. They were removed' before.
“Q. You mean the thirteen head of hogs were removed before you got out your sequestration?
“A. The hogs were gone then.”

The trial judge accepted as correct the testimony of Price and Wells as to the ownership of the thirteen hogs and we also accept their testimony as correct.

Price was compelled to employ an attorney to obtain the release of his property from seizure, and Mr. Lamar Polk, an attorney at law practicing at the Rapides (parish bar, testified that $50.00 is a reasonable charge for the services rendered by the attorneys for intervenor, third opponent, Charles E. Price, in the premises, and his testimony is not contradicted.

Intervenor, third opponent, Charles E. Price, is entitled to recover from plaintiff as damages the reasonable fees of his attorney in the premises.

Bailey vs. Williams, 158 La. 439, 104 So. 197.

We find no error in the judgment appealed from and it is accordingly affirmed.