text:
    No. 11,244
    Orleans
    BAILEY v. FISHER
    (June 24, 1929. Opinion and Decree.)

      Wm. Winans Wall, of New Orleans, attorney for plaintiff appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, while standing on the sidewalk at the corner of Carondelet street and Jackson avenue, at about 10 o’clock in the morning, was run into, and knocked against an iron fence, by an automobile driven by defendant. The automobile skidded, mounted the sidewalk, and struck defendant when he was near the (property line. He brings this action in an effort to recover reimbursement for his personal injuries, for which he claims $5,663, and for the value of his trousers, which were ruined, and the loss of an umbrella, which was destroyed. For these last mentioned items he claims $13.50. His total claim, therefore, is for $5,676.50.

Defendant, in his answer, admitted the occurrence, but denied responsibility therefor, contending that The path of his automobile, while he was entirely free from fault or negligence, was suddenly crossed by a truck, and that the necessary and proper application of his brakes caused his car to skid and swerve and mount the sidewalk, on which plaintiff was standing.

Prior to the trial in the court below, defendant caused his physician to call on plaintiff for the purpose of making a physical examination to determine the extent of the injuries. Plaintiff, apparently through misunderstanding, refused to allow the physical examination to be made.

At the trial, defendant’s counsel objected to the introduction of any medical testimony by plaintiff’s physicians, contending that, under the doctrine announced by our Supreme Court in Grant vs. N. O. Ry. & Light Co., 129 La. 811, 56 So. 897, and in Kennedy vs. N. O. Ry. & Light Co., 142 La. 879, 77 So. 777, such testimony, in view of plaintiff’s refusal to submit to an examination by defendant’s physician would have been ex parte, and therefore inadmissible.

The trial judge, following the pronouncements in the two cases referred to, maintained the objection and excluded the testimony. Accordingly there is in the record no testimony or evidence as the extent of plaintiff’s physical injuries. That this ruling of the trial judge is correct and in accordance with the doctrine announced in the cases referred to is manifest. In the Kennedy case the court said:

“We find no fault with the ruling of the trial judge to the effect that he was without authority to require plaintiff to permit an examination of her person; but, on the other hand, we do not see how the jury and the judge could reach a legal verdict and judgment against the defendant upon an ‘ex parte’ version of physical injuries, of the nature and character of which plaintiff permitted only the witnesses selected by herself to become informed; for, if defendants in such cases can he condemned upon that basis, they will always be at the mercy of plaintiffs, who have only to complain of injuries not visible outside of their clothing, produce themselves and their own selected witnesses to testify to them, and sit tight, with no fear of possible contradiction. Such a proceeding, however fails to furnish the principal element required in due process of law, to-wit, a hearing, and ordinarily would be dismissed, since a court cannot well place a value upon ‘ex parte’ testimony.”

As there was before the trial court no evidence as to physical injuries, judgment as in case of non-suit was rendered. From that judgment of non-suit defendant has appealed.

Plaintiff, seemingly realizing that the exclusion by the trial judge of the ‘‘ex parte” medical testimony was correct, has not answered the appeal, but instead has, we are told, tendered himself to defendant for examination by his physician, and has filed a new suit.

Defendant’s counsel admits in oral argument that, under the facts such as appear here, so far as liability is concerned the doctrine of “res ipsa loquitur” is applicable, and that, as a result of that doctrine the burden of disproving negligence is upon defendant, and that he has not attempted to sustain that burden. It is quite evident that an automobile has no place on a city sidewalk. Therefore a pedestrian who is walking or standing on a sidewalk is under no obligation to take precautions against automobiles, and, in a suit for damages under such circumstances as are presented here, need do no more than show that the automobile struck him while he was standing or walking in a safe position upon the sidewalk. Defendant, who seeks to avoid liability, must then show affirmatively that the fault was in some one else, and not in him. This defendant has failed to do. It follows that he is responsible for such losses as have been proven.

Since the loss of the umbrella and the damage to the trousers have been proven, it is manifest that defendant is not entitled to a definitive judgment dismissing the suit. Defendant’s attorney concedes this, but argues that he is entitled to a judgment against him for $13.50, the value of the articles mentioned.

Defendant is thus in the attitude of asking, on appeal, for a more onerous judgment against himself than was rendered against him below.

It is manifest that the items mentioned are inconsequential and trivial, and that the real purpose of the suit was to recover for the physical injuries. Since there is no evidence in the record proving any loss on that portion of the claim, which forms the real basis of the suit, we would not be justified in holding that, because a trifle has been proven, an affirmative judgment dismissing the suit as to the balance of the claim should be rendered; nor do we think it equitable to allow a party, on appeal by him, to obtain a more burdensome judgment against himself in order that he may use that judgment on which to base a plea of res adjudícala in another suit. See World’s Industrial & Cotton Centennial Exposition vs. North Central & South American Exposition, 39 La. Ann. page 1, 1 So. 358.

It is therefore ordered, adjudged and decreed that the judgment appealed from be, and it is, affirmed.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 464
    First Circuit
    SARRETT v. GLOBE INDEMNITY CO.
    (June 10, 1929. Opinion and Decree.)
    See, also, Sarrett vs. Globe Indemnity Co., 8 La. App. 324.
    Taylor & Parker and Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

This is the third suit that plaintiff has filed in order to obtain a judgment against defendant for the hire of her mule teams used in constructing a public highway in the parish of East Baton Rouge. In the first suit she sued jointly with her husband, who also had a claim against defendant for personal services rendered to the contractor who constructed the highway. The contractor failed in the performance of the work, and defendant, in compliance with its obligation as surety for the contractor, completed the work and became responsible in lieu of the contractor.

In the first suit, plaintiff’s demand was rejected and ‘‘her right reserved to prosecute any claim she might have against defendant in such proceeding's hereafter as she may deem proper.” See decree of district court in case No. 903 of the district court docket, dated February 4, 1926.

Her second suit was also unsuccessful. Her demand was dismissed as in case of nonsuit. See decree of this court in Sarrett vs. Globe Indemnity Co., 8 La. App. 324.

Her present suit was tried on its merits, and she obtained a judgment for $1,745.64 on January 30, 1929, and from the judgment defendant has taken the present appeal.

The first defense is that Sarrett, plaintiff’s husband, was in partnership with G. R. White, the defaulting road contractor, and that, as surety for said contractor, defendant cannot be liable for any claim in favor of the silent partner of said contractor. That defense, whether pleadable or not against Mrs. Sarrett, was disposed of in the first suit of Sarrett vs. Globe Indemnity Co., where the evidence was reviewed upon that subject, and wherein we came to the conclusion that there was no partnership between Sarrett and Whita. We still adhere to that finding, notwithstanding the testimony of White to the contrary, which testimony was only taken on the trial of the present case. There was some attempt made to show that Mrs. Sarrett also was a partner, but that allegation rests upon even a weaker foundation than that by which it was claimed that her husband was a partner.

Other defenses are that the mules and scrapers were community property, and that, even if the mules and scrapers bélonged to Mrs. Sarrett, they were administered by her husband, and that the revenues derived from their employment fell in the community of acquets and gains between Mr. and Mrs. Sarrett, and that Mrs. Sarrett has no right to recover the same.

It is very evident that defendant has no interest in making these defenses, for it appears that Mr. Sarrett was joined, and that he authorized his wife in suing upon her claim against defendant, and a payment of the claim made to Mrs. Sarrett would undoubtedly be binding upon her husband. A judgment under these pleadings would certainly be res adjudicata against Sarrett.

There is no doubt that work was done in the performance of the highway contract with plaintiff’s teams and implements, and the question in which defendant is vitally interested is, How much of such work was done, and what is a fair compensation for the same?

The district judge found that the proof justified him in awarding plaintiff $1,-745.64 for the use and hire of her teams and scrapers. The evidence, in our opinion, justifies this finding, and it is not seriously disputed in this court.

For these reasons, the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 493
    First Circuit
    PLANTIAGO v. SNELL
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    B. M. Harvard, of Hammond, attorney for plaintiff, appellee.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

Joe Plantiago claims of O. C. Snell damages amounting in the aggregate to $1,225, growing out of and caused by the act of said Snell in closing a road to the free use of which Plantiago was entitled. The right of Plantiago to the road was recognized by the judgment of the dis-. trict court.

In the judgment of the district court it was held that said Snell had no right to close the road or restrict the use of it against said Plantiago as he had done, and which the evidence shows he maintained against him for more than a year.

The defendant admits closing the road and keeping it closed for the time mentioned, but contends that he had the right to do it, under certain judgments of the district court. He admits that the district judge has since decided that, he had no such right. He denies that plaintiff was damaged to the extent claimed. He urges other defenses, but the only question in the case is the amount of damage that the plaintiff has sustained by the act of the defendant.

The district judge allowed the plaintiff $200.

The defendant has appealed.

The plaintiff, in answering the appeal, prays that the amount be increased to $1,225 as claimed in his petition.

The evidence shows that plaintiff has been seriously damaged in various ways. We do not see how defendant, in view of the title from C. E. Cate, under which he claims, plainly reserving this right of passage for a road, could have believed that he had the right to close it and keep it closed against the plaintiff as he did.

The plaintiff is a strawberry grower and farmer, and the road in question is the only cutlet from his dwelling and farm to the public road. Several months of the time during which -defendant kept the road closed, and before the plaintiff was able to acquire a temporary right of passage from another party, he was put to great inconvenience and annoyance. He had to carry on his back for some distance the provisions for his family. He was forced to carry strawberry plants on his back, necessary in his farming operations, for some distance across the fields of others. There was no way to get to his residence and farm for several months except by walking and going through the yards and fields of other people. He finally secured a right of .way from others at a cost of $80, but the use of it required him to open and close three or four gates going and coming each time he used it.

We do not think that $200 allowed by the district court is sufficient.

The evidence shows that plaintiff sustained a loss on account of being unable to reach his farm with a wagon, of at least $200 in shortage of crops. He was compelled to pay $80 to another person for the right to pass through his fields and yard with his wagon, in order to carry heavy articles back and forth from his dwelling and farm to market.

The defendant destroyed a bridge which the plaintiff had built on the road, and the bridge will have to be replaced before the road can be again used. He suffered great inconvenience and physical hardship on account of defendant’s conduct, and on that account, and to restore the bridge, we think $200 a very reasonable recompense. We have decided to increase the amount allowed by the lower court to $480, and, as thus amended and corrected, the judgment appealed from will be affirmed.

It is therefore ordered, adjudged, and decreed that the $200 allowed by the judgment of the lower court be increased to $480, and, as thus' amended, the judgment appealed from is affirmed.

'Defendant and appellant to pay the cost in both courts.


author: ODOM, J.

text:
    No. 3419
    Second Circuit
    MITCHELL ET AL. v. WILLIAMS
    (July 1, 1929. Opinion and Decree.)
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiffs, appellees.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

The defendants, who own a certain commercial building in the city of Shreveport, employed plaintiffs, who are architects, to prepare plans and specifications for the reconstruction or remodeling of the said property, and to supervise the work of construction. It is plaintiffs’ contention that they prepared and completed plans and specifications for said work, for which they now claim compensation. Inasmuch as the contemplated construction of the building was not carried out, plaintiffs do not claim the full amount of the fee which would have been due them if the reconstruction had been done and they had supervised the work.

It is not denied by defendants that, if plaintiffs had completed the plans and specifications for the work, they would be entitled to the amount which was awarded them by the district judge, so that the only dispute between the parties is whether plaintiffs did in fact complete the plans and specifications or whether they had done no more than to make pencil drawings up to the time it was decided by defendants and Mr. Mulcare, the prospective tenant, that the building should not be reconstructed.

The contract for the preparation of the plans and specifications, etc., was originally entered into by the architect, Mitchell, who, before any work was done, moved to the state- of Florida; but, before going, he informed defendants of the fact that he would soon leave the city, and it was then decided between him and defendants that Mr. Schwarz, another architect of the city, should become associated with Mitchell and carry on the work.

Mr. Schwarz testified positively that the work of preparing the plans, drawings, and specifications had been fully completed at the time he was ordered to go no further, and there is no positive testimony to the contrary. Neither Drs. Pirkle and Williams, the defendants, nor Mr. Mulcare, the prospective tenant, who was consulted during the whole time, could say definitely that the plans and specifications had not been completed. Dr. Pirkle and Dr. Williams seem to feel sure that they were not, and give as their reasons principally that Mr. Schwarz did not begin his work until the latter part of October, and that he was ordered to cease about the 5th of November; and that the time was entirely too short to enable him to complete them.

Our conclusion, after reading all the testimony, is that Schwarz was at work on the plans and specifications for a considerably longer time than defendants think he was. Defendants testified that the contract was entered into with Mitchell in the latter part of October. We think they are mistaken. Mr. Mitchell testified that his first discussion with defendants with reference to the matter took place in the spring of 1925, and that the contract was finally entered into in the month of July, before he left for the state of Florida. Mr. Mulcare is not very definite as to the time that Mr. Schwarz was working on the plans, but, taking his testimony as a whole, we are convinced that it must have been in the early part of October, at least. He said that he had conferences with the defendants and with Mr. Schwarz, the architect, with reference to the construction of the building, and that he was familiar with the work as it progressed. He testified that at some -time in the month of October he underwent an operation which confined him to his home for a considerable length of time, and, from his testimony as a whole, we conclude that some of his conferences with the architect must have been previous to the date of his illness. He is not very definite as to the exact date on which he went back to work, but, as we gather, it was around the 1st of November, and he finally stated that he definitely decided not to lease the building about two weeks after he returned to his work, which would be about the middle of November. As to what stage the architect’s work had progressed, Mr. Mulcare stated that he was not sure that the plans and specifications had been completed, but that he thought the plans for the first floor and the basement, which he was to occupy, had been finished, as he saw them, but that he paid no attention to any other part of the building.

Another reason why Dr. Williams thinks the plans and specifications had not been completed at the time the contract was called off is that, at a conference between himself and the architect, the latter exhibited to him only pencil drawings, and made no mention to him of the fact that he had completed the plans. He thinks that, if the architect had completed them, he would have said so. That is not necessarily true. As already stated, neither Dr. Williams nor any of the others could say definitely that the plans were not completed, while, on the contrary, plaintiffs testified positively that they were.

During the process of the work, Mulcare, the prospective tenant, suggested several changes in the plans, which were made, and it was agreed, it seems, that he should pay for this extra work. He finally paid plaintiffs $175, for which amount the district judge allowed credit.

There is no satisfactory reason suggested why this court should disturb the ruling of the district court on this question, and we think the judgment in favor of plaintiffs was correct; and it is therefore accordingly affirmed, with costs in both courts.


text:
    No. 498
    First Circuit
    LOUISIANA POWER & LIGHT CO. v. BECKER
    (June 28, 1929. Opinion and Decree.)
    Purser & Magruder, of Amite, attorneys for plaintiff, appellee. '
    Wm. A. Houghton, of Independence, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sued defendant to recover $28, with interest and costs.

Defendant reconvened for $1,167. The district court rendered judgment in favor of plaintiff, as prayed for, and rejected defendant’s reconventional demand.

The judgment was read and signed on January 9, 1929, A writ of fieri facias was issued in execution of the judgment on February 12, 1929, and was satisfied by defendant’s check on the same day, February 12, 1929. On the check, the following words were written: “Paid under protest, expect to appeal.”

Defendant, on February 18, 1929, obtained an order for, and perfected, a devolutive appeal to this court. Plaintiff moves to dismiss the appeal on the ground of acquiescence.

It is evident from a recital of the facts that there was no acquiescence, and that defendant did not voluntarily comply with the judgment, but paid under compulsion to the sheriff, who held the writ of fieri facias. Such payment does not debar defendant from obtaining and prosecuting a devolutive appeal. Louisiana Land & Immigration Co. vs. Murff, 139 La. 808, 72 So. 284.

On the merits of the case, we have no alternative but to affirm the judgment of the district court. The record contains no note of evidence, no statement of facts, and no evidence.

The presumption is that the trial judge acted on proper and sufficient evidence.

The judgment appealed from is affirmed.


text:
    No. 482
    First Circuit
    TERRY & JUDEN CO., LTD., v. PIERCE
    (June 28, 1929. Opinion and Decree.)
    Harvey E. Ellis, of Covington, and Robt. D. Jones, of Franklinton, attorneys for plaintiff, appellee.
    Morgan & Simmons, of Covington, attorneys for defendant, appellant.
   ELLIOTT, J.

Terry & Juden Company, Limited, claims of J. E. Pierce $281.38 as the balance due on account. The account is for haberdashery, and is annexed to and. made part of the petition.

The defendant denies owing the indebtedness claimed. He contends: That the articles ordered by and charged to him were intended to be of the highest grade, tailor made, and fitted to exactness. That some of the garments, when tried, on, did not fit. That some of the prices charged were overcharged. He further claims: That pure white silk shirts were guaranteed not to fade from a puré white to a cream color, and that they did fade. That, properly charged and given proper credits, he had overpaid the account 'to the extent of $104.69.

He prays that plaintiff’s demand be rejected, and that he have judgment against plaintiff in reconvention for $104.69.

There was judgment in favor of the plaintiff as prayed for. The defendant has appealed.

The question at issue is one of fact only. The only serious conflict in the testimony is as to the alleged guaranty.

The lower court heard the witnesses; they all appeared before him, and he was in a better position than we are to judge of their credibility.

The record contains a large amount of correspondence showing that the defendant, after receiving certain articles, would send them back for slight alterations, so slight that we cannot appreciate their importance.

The plaintiff expressed a desire to satisfy the defendant, and did. seemingly comply as near as it was possible to do it.

We have given consideration to all the evidence, taken various facts and circumstances into account, and our appreciation of the matter is that the lower court decided the case correctly. We cannot say that the court erred.

Judgment affirmed.

Defendant and appellant to pay the cost in both courts.


author: JANVIER, J.

text:
    No. 10,919
    Orleans
    FRENCH v. ZBORNITZY
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    James Barkley Rosser, Jr., of New Orleans, attorney for plaintiff, appellant.
    Wm. Winans Wall, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, Mrs. Grace French, wife of Randall Moore, had for many years owned and resided on a tract, of land described as follows:

“A certain tract of land, situated in the Third District of this City, on the South Side of Gentilly Road, measuring one arpent front on Bayou Sauvage by a depth of fourteen arpents or about eleven and one half arpents between parallel lines, designated by the letter ‘A’ on a certificate of survey made by P. A. D’Hemecourtt, deputy city surveyor, on July 28, 1888, and attached to the purchaser’s act of purchase aforesaid; said lot ‘A’ being composed of one third of the original lot 174 and two thirds of the original Lot No. 172, both figured on a plan made by J. A. D’Hemecourtt, Surveyor, and attached to an act before Abel Dreyfous, Notary, dated January 2nd, 1866.”

Upon her failure to pay the city taxes due on the property for the year 1918, by tax deed dated April 6, 1921, it was transferred to Mrs. Cecile Z. Zbornitzy, wife of Abraham Levinberg.

Thereafter plaintiff brought suit (No. 163670 of the Docket of the Civil District Court) seeking to have the tax sale declared null and void because of improper description in assessment and improper notice. .

Defendant reconvened, praying that judgment be rendered declaring the tax deed to be valid and recognizing defendant as the owner of the property.

When that suit was called for trial, plaintiff therein did not appear either in person or by counsel; whereupon, defendant, plaintiff in reconvention, obtained judgment recognizing the validity of the tax sale and deed and declaring her to be the owner of the property. No appeal has ever been taken from that judgment.

After the above-mentioned judgment was rendered, plaintiff communicated with defendant in an effort to buy back the property, and an agreement was entered into whereby it was stipulated that defendant would sell the property to plaintiff for $1,000, $200 of which was to be paid in cash, the balance to be represented by a .mortgage note. The cash payment was made, but the deed was not executed, because, instead of taking title in accordance with the agreement, plaintiff filed this suit, which has as its object the annulment of the tax title of defendant.

An analysis of the rather lengthy petition shows that plaintiff seeks, primarily, the annulment of the judgment rendered in the first suit (163670) and that as a result she be declared the owner of the property. In the alternative she asks that specific enforcement of the contract of sale be ordered and that defendant be required to transfer the property over to her upon her paying the balance of the purchase price.

Defendant contends that so far as the primary demand for annulment of the first judgment is concerned, that question is res adjudicata and cannot be reopened.

We have read the petition carefully and find no allegations therein and no proof in the record which would justify us in •annulling the first judgment. The principal ground of complaint seems to be that plaintiff was not present at the first trial.

As to the alternative prayer for specific performance, defendant contends that plaintiff has lost her rights under the agreement, because, when put in default, she failed to perform her part of the contract. Defendant also contends that by filing suit to annul the title to the property, plaintiff has judicially averred that defendant has no interest in the property, and therefore cannot in the same breath say that such interest as defendant has should be transferred to plaintiff.

The evidence as to the default shows conclusively that defendant complied strictly with the provisions of articles 410 and 411 of the Code of Practice.

A notary public was employed, who testified that he gave notice to plaintiff of the time and place at which the act of sale and mortgage would be passed. He further testified that at that time and place he himself, as well as the defendant and witnesses, and the act and the note were all in readiness, but that plaintiff did not appear. We cannot see what more defendant could have done.

It is quite true that the Supreme Court of Louisiana said, in Watson vs. Feibel, 139 La. 375, 71 So. 585:

“Under Civil Code, art. 1911, stating how the debtor may be put in default, the act of putting in default is a simple demand for performance, but does not cut off the right to perform.”

This language merely means that if the debtor desires to perform, he may appear at the time and place appointed and offer to perform, but it does not mean that he may remain absent, and by so doing retain unto himself the right, at some future time convenient to him, to carry out his agreement. He has been given his time and opportunity and has not availed himself of it. In such a situation the other party may sue for the specific performance of the contract, or he may, at his option, treat it as abandoned. Defendant here has chosen the latter course.

This view of the matter makes it unnecessary that we consider the question of whether or not plaintiff’s alternative contention is inconsistent with his primary demand.

Of course, since defendant chose to consider the contract of sale as abandoned, she must return the amount paid thereunder, and this she has done by depositing it in court. Had this amount been tendered prior to the suit and deposited in the registry of the court before the suit, the costs of the trial court would have been cast against plaintiff; but, since defendant did not choose to do this and did not make the deposit until after the judgment was rendered, the costs of the trial ■ court should be paid by her, as the judgment in favor of plaintiff for $200 was manifestly correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, costs of this court to be paid by appellant.


text:
    No. 10,881
    Orleans
    GODCHAUX & MAYER, LTD., v. RICHARDSON
    (May 27, 1929. Opinion and Decree.)
    (June 4, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Denied by Supreme Court.)
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellee.
    E. E. Talbot and F. Rivers Richardson, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, alleging its corporate existence, sues for premiums claimed to be due on insurance policies on a certain automobile. A large number of exceptions were filed, but we do not deem it necessary to discuss any of them except that one through which the corporate existence of plaintiff is challenged; in other words, the exception of “nul tiel corporation.”

After the overruling of this and the other exceptions, defendant filed answer. Payment is resisted on the ground that defendant is a married woman, and therefore cannot be held for a community debt. She also contends that the policies in question had been presented to her husband by the president of plaintiff corporation as a gift and as a token of appreciation for certain favors.

As to the question of the corporate existence of plaintiff, we find the record in several places contains statements which show a full recognition by defendant of the corporate status of plaintiff. For instance, in articles 7, 8 and 9 of her answer, defendant refers to plaintiff as a corporation, and in the testimony of her husband we find that he refers to the late Mr. Godchaux as the president of the company. Defendant’s husband is a lawyer of recognized ability, and he is charged with knowledge of the meaning of his testimony:

“I- knew that Mr. Godchaux was the president of Godchaux & Mayer Company.”

We think that, in view of the state of the record on this point, defendant’s exception, “nul tiel corporation,” should not be sustained.

As to the defense that a wife cannot ■be sued for a community debt, we find many admissions to the effect that the automobile in question was owned by the wife and not by the community. For instance, in article 3 of the petition it is charged:

“That the said Mrs. Iona D. Richardson, on October 19, 1923, was an owner of a 1919 model Marmon touring car, motor No. 718168.”

The truth of this allegation is admitted by defendant. There also appears in the testimony of defendant’s husband the following:

“Mr. Godchaux at that time inquired of me if I did not have a Marmon car. I said my wife had.”

It is manifest, then, that the car in question was the property of the wife and not of the community. Therefore the wife is liable for debts contracted for the benefit thereof, because, since the passage of Act No. 219 of 1920, a married woman may be bound with reference to her separate and paraphernal property and may sue and be sued.

The last defense is based on the contention that the policies had been donated by the president of plaintiff company to defendant’s husband. It is quite well settled that an officer of a corporation may not give away property of the corporation, particularly in a case like the one before us, where the favors which defendant’s husband claims he performed were personal to the officer of the corporation. The principal favor which, it is alleged, was performed in this, case, was the lending of money to the president of the corporation. Surely this was a personal favor and, even assuming that under some circumstances a corporation’s property may be given away, it certainly cannot be so given away in exchange for personal favors rendered an officer.

It is true that defendant’s husband claims that he also did favors for the corporation in that he directed business to it; in other words, that in exchange for insurance business which he sent or directed to plaintiff company he was given his own insurance without cost. We cannot believe that this is what he really intended, because surely, being a lawyer, he must realize that such a practice would be directly violative of section 3590 of the Revised Statutes, found on page 1236 of Marr’s Annotated Revised Statutes of Louisiana.

Judgment was rendered in favor of plaintiff as prayed for, and we believe that this judgment was correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


author: WEBB, J.

text:
    No. 3479
    Second Circuit
    GANEY v. COCKERHAM (COCKERHAM, INTERVENER)
    (July 1, 1929. Opinion and Decree.)
    A. D. Flowers, of Jena, attorney for plaintiff, appellee.
    Moss & Moss, of Winnfield, attorneys for intervener, appellant.
   WEBB, J.

In this suit, plaintiff, R. E. Ganey, asserting that defendant, Oran Cockerham, was indebted to him, and that he had a pledge on an automobile to secure the payment of the indebtedness, sought to obtain judgment • against defendant, with recognition of a privilege on the automobile, which was seized under a writ of attachment.

Defendant denied that he was indebted to plaintiff, or that he had given the automobile in pledge, and H. J. Cockerham, father of plaintiff, intervened in the suit, asserting that the automobile had been purchased by him and his son, and that the latter had transferred to him all his right, title, and interest in the automobile, and, joining the defendant, he alleged that the automobile had not been pledged to plaintiff, and that, if the automobile had been given in pledge to plaintiff, it was invalid, for the reason that defendant was not the sole owner of the property, and, further that the pledge was not in writing, and was without effect as to intervener, and he prayed that he be recognized as the owner of the automobile.

In answer to the intervention, plaintiff denied that intervener was the owner of the property, and alleged that the transfer from defendant to intervener was a fraudulent simulation, and made for the purpose of defeating plaintiff’s pledge on the property.

On trial, judgment was rendered in favor of plaintiff against defendant for the amount claimed, with recognition of a privilege on the automobile, and rejecting intervener’s demands, and defendant and intervener appeal.

There was not any contest as to the indebtedness claimed by plaintiff against defendant, and, while the evidence is not definite as to what was said at the time the automobile is claimed to have been pledged by defendant to plaintiff, it was shown that defendant had been charged with committing a misdemeanor, and tried, found guilty, and sentenced to pay a fine and to serve a period of 30 days in jail, and that the indebtedness due plaintiff was for a loan made to defendant to enable him to pay the fine, and that, at the time the loan was made, defendant offered to give plaintiff a mortgage on the automobile to secure the payment of the loan. Plaintiff testified that thereafter the automobile had been pledged to him and possession of the property delivered to him, and, while defendant claimed that there had not been any agreement of pledge, and that possession of the property had not been given plaintiff, the evidence shows that the automobile had been left on plaintiff’s premises, and that it had been used by plaintiff and his family, and, the trial court before whom the parties appeared having found that defendant had pledged the automobile to plaintiff, we cannot say that the finding was manifestly erroneous; and as between defendant and plaintiff, the latter had a- privilege on the property to secure the payment of the indebtedness, although the agreement of pledge was not in writing (Matthews, Finley & Co. vs. Rutherford, 7 La. Ann. 225), and we consider the question as to whether or not the privilege was effective as to the intervener.

Intervener contends that it was not effective, for the reason that defendant was not the sole owner of the property, and was without right to give it in pledge to plaintiff, and, further, that, if defendant was the owner of the property at the time of the pledge, plaintiff had permitted defendant to have possession of the property, and that defendant had transferred it to him.

The evidence shows that the automobile was purchased by defendant from the Welch Motor Company, a part of the price being paid at the time, and that defendant gave a note for the balance, and granted a mortgage on the automobile to secure the payment of the note; and, although defendant and intervener state that intervener furnished the greater part of the funds used in making the down payment, and that he also furnished the funds with which the note was paid, such circumstances did not have the legal effect of vesting any right of ownership in intervener, and, in the absence of any evidence of any agreement between defendant and intervener recognizing the latter as having any right of ownership in the automobile prior to the date of the pledge, we are of the opinion that defendant was the owner of the automobile at the time of the pledge, and had the right to pledge the property to plaintiff; and the remaining question is as to the effect of the subsequent act of transfer of the property made by defendant to intervener.

The evidence established that, subsequent to the date of the pledge, defendant had signed a written act of transfer of the property to intervener. It is admitted, however, that intervener did not pay defendant any money at the time the act of transfer was passed; it being stated that the consideration expressed in the act was for an indebtedness due by defendant to intervener. The evidence further shows that defendant was unwilling to serve the sentence of 30 days, and, in order to avoid serving the sentence, he fled, taking the automobile with him, over the protest of plaintiff, who immediately took action to protect himself by filing the present suit; that, soon after defendant left, intervener, who lived with defendant and his family, was informed that the sheriff was trying to locate defendant and the automobile, and that intervener followed defendant to the place to which defendant had fled, where the act of transfer was passed, and shortly thereafter defendant and intervener returned to their home, where the automobile was seized by the sheriff.

It is difficult, if not impossible, to establish' by direct evidence that a transfer which may have had a valid cause was a simulation, or that it was made with the object of defeating the rights of the transferor’s creditors, and resort must usually be had to the circumstances, that is, the relationship of the parties, the transferee’s knowledge of the transferor's affairs, the conditions preceding and surrounding the transaction, and the consideration received by the transferee; and in the present instance every circumstance is unfavorable to the intervener, and we are of the opinion that the circumstances established that the transaction was a fraudulent simulation, and did not vest any right in intervener to question the form or effect of the pledge made by defendant to plaintiff.

The judgment is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,854
    Orleans
    GEORGE J. GLOVER CO., INC., v. BARNES ET AL.
    (June 24, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)

      W. A. Porteous, Jr., of New' Orleans, attorney for plaintiff, appellee.
    E. R. Mabry, of New Orleans, attorney for defendant Fidelity & Guaranty Co., appellant.
    Luther E. Hall, of New Orleans, attorney for defendant Barnes, appellant.
   WESTERFIELD, J.

This is a petition in interpleader, whereby the plaintiff, George J. Glover Company, Inc., deposited in the registry of the Civil District Court $509.97, and impleads O. M. Barnes and the United States Fidelity & Guaranty Company, rival claimants for the amount deposited.

The George J. Glover Company, Inc., were the general contractors which, under a written contract with the St. Charles Hotel Company of New Orleans, undertook certain alterations, additions and improvéments to the St. Charles Hotel. The Glover Company entered into a subcontract with O. M. Barnes, whereby Barnes agreed, for a consideration of $1,630 to do certain things. In the language of the •'ontract:

“Article 1. The Sub-Contractor hereby agrees to provide all the materials and perform all the work to erect all structural steel including the taking down of the existing steel and iron and lowering and removal of the existing steel and iron to street or sidewalk, refitting and re-erecting any existing old steel work that may be designated to be used again, unloading, handling and erecting all new structural steel; drilling all necessary holes; cleaning and painting all new and old structural steel work; including the furnishing of all paint; and in fact everything necessary and incidental thereto to make a complete job of erecting, removal and painting of the above mentioned work.
“It is further understood and agreed that the sub-contractor will be paid by the contractor the price and sum of fifteen dollars ($15.00) per ton for all old steel and iron lowered and placed on the sidewalk or street, at site of building by the sub-contractor in addition to the amount named in Article XXIV of this agreement; and, the whole in strict conformity with the General Conditions of the Contract and as shown on said plans and drawings and-described in said specifications and addenda specifications, if any, the said Subcontractor hereby, for the purpose of the work included in this contract, substituting himself in the place and stead of said Contractor, assumes all the obligations upon said Contractor in so far as the work herein stipulated to be performed is concerned.”

It was stipulated:

"That the work required hereunder may be added to, deducted from, changed or altered to the wishes of the Owner and said Contractor.”

Barnes assigned to the United States Fidelity & Guaranty Company:

“The payments due and to become due to him under a certain contract with George J. Glover Company, Inc., dated April 11th, 1925, for the erection of all constructural steel including the taking down of the existing steel and iron and lowering and removing existing steel and iron' in alterations, additions and improvements to the St. Charles Hotel, New Orleans, and the said George J. Glover Company, Inc., is hereby authorized and directed to make the said payments as they become due to the United States Fidelity & Guaranty Company.”

Subsequent to the execution of this written contract between the Glover Company and Barnes, a verbal contract between the same parties was made for certain extra work not mentioned in the general contract between the Glover Company and the St. Charles Hotel, nor in the subcontract between the Glover Company and Barnes, but considered necessary in connection with the general purpose of remodeling the St. Charles Hotel, the object of the general contract; the consideration of the verbal contract being the sum in dispute here, or $509.97.

The basis of the claim of the United States Fidelity & Guaranty Company is the provision in the subcontract, quoted supra, to the effect that “the work required under that contract may be added to, deducted from, changed or altered to the wishes of the owner or the said contractor.” This provision, it is contended, is broad enough to include any work which Barnes might have undertaken to do in connection with the remodeling of the St. Charles Hotel, which had been undertaken by the Glover Company. With this view, we, like the judge of the lower court, are not in accord.

The subcontract is quite explicit as to Barnes’ undertaking thereunder, and the assignment of Barnes’ interest in that contract is limited to such moneys as may be coming to him under it. The clause in the contract relied upon by the surety company would apply to changes and additions in the work specified in the contract. It does not apply to extra work, the subject of a different contract, whether the work be connected with the purpose as expressed in the general contract or not.

It is admitted that the extra work, 'for which the sum of $509.97 is due, does not come within the terms of his original subcontract unless the section of the contract relied upon by defendant is susceptible of the interpretation put upon it by counsel. At the time the assignment was made to the United States Fidelity & Guaranty Company (May 19, 1925), the verbal contract for extra work had not been entered into or executed; consequently Barnes could not have contemplated and did not assign the moneys due him under this verbal contract.

The trial judge, in a lengthy opinion, which we adopt without reproduction here, reached the same conclusion.

We are of the opinion that his judgment is correct; consequently, for the reasons assigned, the judgment appealed from is affirmed,


text:
    No. -
    First Circuit
    HEBERT ET AL. v. CRUSEL
    (June 28, 1929. Opinion and Decree.)
   ON REHEARING

For original opinion see 11 La. App. 82; 120 So. 221.

ELLIOTT, J.

A rehearing was granted in order that we might further consider whether the amount of damages which the defendant was required to pay, by the judgment appealed from, should not be increased.

Defendant by his counsel admits that, due to the accidental failure of the instrument used by the shorthand reporter to record, when it was thought to have been working, the testimony of J. G. Anderson and some other' witnesses, as reproduced, was not as they had actually testified, and the substance and effect of what was testified was agreed to.

It now appears that all the timber except the cypress and túpelo gum on the southwest quarter of section 33, Tp. 8, S., R. 4 E., is all that the witness Anderson estimated. According to his estimate, Mr. Crusel cut and removed 29,565 feet of oak, 27,680 feet of magnolia, and 514 feet of ash — a total of 57,759 feet which he had no right to remove.

The evidence shows that a fair average price for this class of timber when standing in the swamp is $3.50 per thousand.

The lower court gave judgment in favor of the plaintiff for $465.50. This is more than twice the average price.

Further reflection leads us to believe that the amount allowed in the lower court should not be disturbed.

For these reasons our former opinion and decree herein is now reinstated and made the final judgment of this court.


text:
    No. 2784
    Second Circuit
    CAREY SAFE CO. v. DAVIS
    (July 1, 1929. Opinion and Decree.)
    F. G. Thatcher, of Shreveport, attorney for plaintiff appellee.
    Chas. F. Crane, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note for $1500, on which $500 had been paid and credit therefor given.

Defendant, in answer, admitted the execution of the note as alleged, and set up no defense, except that the holder and owner of the note had agreed to extend the time for payment. A plea of prematurity was not filed in limine, but was made only in answer.

Upon the filing of defendant’s answer, plaintiff ruled him to show cause why judgment should not be rendered against him on the pleadings. This rule was tried and made absolute, and there was judgment for plaintiff as prayed for. Defendant appealed.

The judgment is correct. There was no defense offered, and, when the case was set for argument in this court, counsel for defendant did not appear, although he was duly notified; nor has he filed brief.

Appellee has answered the appeal, praying that the judgment be so amended as to allow 10 per cent damages as penalty for frivolous appeal. The judgment carries interest at 6 per cent, but no attorney’s fees. This appeal was evidently taken for delay only, and the rule is that, where such is the case, the judgment will be affirmed with damages. Code of Practice, art. 907; La. Dig. vol. 1, p. 530, sec. 512.

It is therefore ordered and decreed that the judgment appealed from be so amended as to allow 10 per cent damages as penalty for frivolous appeal; and, as thus amended, it be affirmed with costs in both courts.

WEBB, X, recused.


author: REYNOLDS, J.

text:
    No. 2674
    Second Circuit
    WOOLEY BROS. v. THARPE DRILLING COMPANY
    (July 1, 1929. Opinion and Decree.)
    Robertson and Gibbs, of Shreveport, attorneys for plaintiff, appellee.

      Fuller & Wilson, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sued defendant to recover judgment against him for $105.20 and interest thereon as the price of certain merchandise alleged to have been sold and delivered on open account.

Defendant denied owing plaintiff anything and alleged that plaintiff owed it $22'.40 as the price of certain property alleged to have been sold and delivered by it to plaintiff, and defendant reconvened against plaintiff for that amount.

On these issues the ease was tried and there was judgment in favor of plaintiff and against defendant for $90 with legal interest thereon from January 20, 1925. No disposition seems to have been made of the reconventional demand.

The defendant appealed.

Plaintiff has answered the appeal ana asks that the amount of the juagment be increased to $105.20 and that it have judgment against defendant tor an additional sum equal to 10 per cent of the amount sued for as for frivolous appeal.

L. C. Tharpe, who is the Tharpe Drilling Company, as witness in his own behalf, testified that he only owed plaintiff $90, claiming that certain work done for him by plaintiff was done under contract and at the agreed price of $90, and that in doing the work plaintiff had used certain lumber of his worth about $28 and for which plaintiff had refused to pay.

S. R. Wooley, one of the plaintiffs, testifying on behalf of ¡plaintiff, denied that the work was done on a contract basis or that there was any contract between plaintiff and defendant for the doing of the work and alleged that it was done on a quantum meruit basis and that it was reasonably worth $105.20.

The burden was on plaintiff' to establish the indebtedness of $105.20 claimed. The testimony of its witness Wooley that the work was done on a quantum meruit basis and that it was reasonably worth that amount is set off by the testimony of defendant’s witness Tharpe that the work was done under contract and for the price of $90. Therefore, the burden was not discharged beyond the amount admitted to be owing by defendant. Defendant’s reconventional demand was not established by any definite or positive evidence.

Under the law and the evidence the judgment appealed from is correct and is affirmed.


text:
    No. 2774
    Second Circuit
    TRIMBLE v. CHAVIS
    (July 1, 1929. Opinion and Decree.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    T. H. McGregor, of Rayville, attorney for defendant, appellant.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

Defendant appealed devolutively from an order of seizure and sale in executory proceedings, and plaintiff, appellee, moves to dismiss the appeal on the ground that the writ has long since been executed, the mortgaged property sold, and the writ is, therefore, functus officio.

The facts are that on September 15, 1925, plaintiff obtained an order of seizure and sale in an executory proceeding commanding the Sheriff to seize and sell certain property owned by defendant on which plaintiff held a mortgage. On November 12th, following, defendant sought to enjoin the sale of the property and a temporary restraining order was granted, but, upon trial of the rule to show cause, the order was recalled by the Court and relief was refused, and defendant’s suit was voluntarily dismissed- by her counsel on January 9, 1926.

On the same day defendant filed a second suit in which she sought injunctive relief from the order to sell her property. The case was tried on June 19th, when her demands were rejected.

Previous to the latter date, however, on May 29th, defendant applied for and was granted a devolutive appeal from the order of seizure and sale, dated September 25, 1925, and the appeal was lodged in this Court on July 26, 1926.

On July 3, 1926, after defendant’s demands under her second suit for injunction had been denied, the Sheriff sold the mortgaged property at public auction under the original writ to George B. Oliver and Jannie Bonner. The Sheriff executed a deed which was duly filed and recorded in the conveyance records of Caddo Parish, on July 6, 1926.

Inasmuch as the mortgage has already been foreclosed, the writ executed, and the property sold, this devolutive appeal can avail appellant nothing. She is without interest to prosecute it further. If this Court should reverse the judgment appealed from, it would not have the effect of undoing that which has been done — that is, of annulling the sale of the mortgaged property already made.

Ouachita Nat. Bank vs. Shell Beach Construction Co., 154 La. 709, 98 So. 160.

Gouaux vs. Lockport Central Sugar Ref. Co., Ltd., 156 La. 889, 101 So. 255.

Jones et ux vs. Bouanchaud, Sheriff, et al., 158 La. 27, 103 So. 393.

There are only two methods by which a defendant in executory proceedings can stay the execution of a writ; one is to appeal suspensively and give bond; and the other is to enjoin the sale, setting up the grounds for relief. Defendant did not take a suspensive appeal, but asked for and was granted a devolutive appeal. Defendant did, twice it seems, attempt to enjoin the sale, but her demands were rejected, and those cases are not before us on appeal.

For 'the reasons assigned, this appeal is dismissed, at appellant’s cost.


text:
    No. 3236
    Second Circuit
    KIDD-RUSS TRUNK & BAG CO., INC., v. MEYER
    (July 1, 1929. Opinion and Decree.)
    Mabry & Carstarphen, of Shreveport, attorneys for plaintiff, appellee.
    Dimick & Hamilton, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is an action on open account for merchandise alleged to have been sold by plaintiff to defendant, in which the defense interposed was that a portion of the merchandise was purchased for the use of a corporation with which defendant was associated, and defendant appeals from a judgment against him for the full amount claimed.

The purchases were made by defendant, who did not disclose that he was acting as the agent of the corporation, or that any part of the merchandise was for the use of the corporation; and it further appearing that the merchandise was charged to defendant, who received statements showing same, and did not protest until demand was made prior to suit, and plaintiff’s representative testifying that credit was extended to defendant, and that he did not know of the existence of the corporation for which defendant was acting, we are of the opinion that under the evidence the court properly applied the general rule that one acting as agent for another is (personally answerable if he fails to disclose his principal (R. C. L., Principal and Agent, vol. 21, page 895; article 3012, Civil Code).

The judgment is affirmed.


text:
    No. 3481
    Second Circuit
    GERMALENE CHEMICAL CO., INC., v. POLICE JURY OF GRANT PARISH
    (July 1, 1929. Opinion and Decree.)
    John A. and R. B. Williams, of Colfax, attorneys for plaintiff, appellant.
    Harry Puller, of Winnfield, and Cleveland Dear, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, Germalene Chemical Company, Incorporated, brought this action against the Police Jury of Grant Parish to recover judgment for the price of merchandise alleged to have been sold and delivered to defendant through its representative, the sheriff of Grant Parish, and plaintiff appeals from a judgment rejecting its demands.

On trial it was shown that, prior to the date the purchases were made, plaintiff received a letter from the treasurer of Grant Parish in which plaintiff was advised that defendant had passed a resolution prohibiting anyone from making purchases for its account, and that it would not be responsible for any purchases made without its consent, and requesting plaintiff to observe such resolutions in the future.

Plaintiff does not, of course, question the power of the principal to revoke the authority of its agent, or the effect of the revocation as to parties having knowledge of it; but it is contended that the resolution was not a revocation of the authority of the sheriff, or if so, that the notice given by the treasurer of the parish was not sufficient; and it is further urged that the merchandise, chemicals, etc., having been used by the sheriff in keeping the parish property, prison and court house, in a sanitary condition, had enured to the benefit of the parish, and defendant, as the representative and fiscal agent of the parish, should be responsible, .at least to the extent of the benefit received.

As to the sufficiency of the resolution, to revoke the authority of the sheriff to make purchases for account of defendant, the evidence shows that the sheriff had been accustomed to making purchases of merchandise, chemicals, etc., necessary to keep the prison in a sanitary condition, as well as other merchandise, which had been charged to and paid for by the Police Jury without protest, and that some of such purchases had been made from plaintiff; and while it is contended that the sheriff was thus impliedly authorized to make the purchases considered here, it is further urged that, the sheriff being the keeper of the prison, and having been permitted by the Police Jury to make purchases of merchandise necessary to keep the prison in a sanitary condition, the relations of the Police Jury and the sheriff were something more than those existing between a principal and his agent, and that the Police Jury could not revoke the authority of the sheriff to purchase merchandise necessary to keep the prison in a sanitary condition without at the same time designating an agent to make such purchases.

The petition indicates that the Police Jury is sought to be held responsible on a contract made by its agent, and the cause was apparently presented on that theory, and it is not, of course, contended that the principal may not revoke the authority of an agent without designating another, and the contention that the Police Jury could not revoke the authority of the sheriff to make purchases of merchandise necessary to keep the prison in a sanitary condition, without at the same time designating another person to make such purchases, appears to be an abandonment of the theory that the purchases were made by the sheriff under any authority emanating from the Police Jury and that such purchases were made under some authority vested in him as the keeper of the prison.

The statute making the sheriff the keeper of the prison does not declare that he shall have authority to purchase merchandise necessary to keep the prison in a sanitary condition, and to bind the parish or the Police Jury as the representative of the parish, for such purchases; and considering that the Police Jury is, under the law, the governing body of the parish, and its fiscal agent, we are of the opinion that the authority to make purchases for account of the parish was at all times vested in the Police Jury; and conceding, as the position of plaintiff implies, that there must be at all times authority vested in someone to purchase merchandise necessary to keep the prison in a sanitary condition, the authority was vested in the Police Jury, and if it had either expressly or by implication authorized the sheriff to make such purchases, it, as any other principal, had the power to revoke the authority and resume control of its affairs; and we are of the opinion that the resolution was sufficient to revoke any implied authority of the sheriff to make purchases for the Police Jury.

Relative to the sufficiency of the notice, we do not think it was necessary that plaintiff should have received notice of the action of the Police Jury through an officer of the Police Jury, but if so, it had before it a certified copy of the resolution, which purported to have been signed by the president of that body, with a request by the treasurer of the parish, also an officer of the Police Jury, that plaintiff observe the resolution; and it thus had notice from all of the officers of the Police Jury.

And as to the contention "that the parish received the benefit of the use of the merchandise and should be held responsible, as it is not suggested that the merchandise had enhanced the value of the parish property, we think any obligation of the parish or Police Jury which might have arisen from other benefits received from use of the merchandise by the sheriff, could be enforced by the sheriff alone and not by the plaintiff.

The judgment appealed from is therefore affirmed.


text:
    No. 3487
    Second Circuit
    SATTERTHWAIT v. DUNCAN BROS. & HERNDON
    (July 1, 1929. Opinion and Decree.)
    L. P. Whittington, Jr., and K. Hundley, of Alexandria, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

By this action, plaintiff, Willet Satterthwait, sought judgment against defendants, Duncan Brothers & Herndon, a commercial partnership composed of J. W. Duncan, Dock Duncan and A. H. Herndon, and the partners individually, for $582.80 with legal interest thereon from January 1, 1928, for this, to-wit: He alleges that he entered into an agreement with the defendants to sell them—

“a certain Huber traction engine, which, at the time of entering into said agreement, was situated near Bunkie, in Avoyelles parish, Louisiana.”

and that the agreement was that—

“he would make the necessary repairs to the engine and have the same loaded and shipped to Lewiston, at which place said partnership was to try out said engine, and if the same was satisfactory for the work for which said partnership desired to use it, then it would pay to your petitioner $500.00 and the loading and unloading charges.’"

and that—

" "If the same was not satisfactory, after trial, the said partnership was to pay the loading expenses at Bunkie, the freight to Lewiston, unloading expenses at Lewiston, and, in addition thereto, would deliver said engine to petitioner, free of charge, at Alexandria, Louisiana.”

and he further alleges—

"That, notwithstanding said engine was unloaded at Lewiston on the date above set' forth, and was turned over to said partnership, they have never used the same, and have never tried it, to determine its usefulness for the work for which they desired it.”

And he further alleges that the cost of loading the machine at Bunkie and unloading it at Lewiston was $82.80.

And he also asked for judgment recognizing his vendor’s privilege on the machine for the amount sued for.

Defendants answered that they had never inspected the machine prior to its ar'rival at Lewiston and knew nothing about' its condition before then, and that on its arrival there they inspected it and—

“found it to be absolutely worn out, and in such dilapidated condition that it was not at all satisfactory to the defendant and it refuses to accept same and offered to deliver it back to the plaintiff at Alexandria, Louisiana, but he refused to accept the return thereof, and demanded the purchase price * * * that the machine was not in first class condition and good running order, as represented by the plaintiff, and was not fit for the uses for which the defendant wanted said machine.”

They further allege that defendant advanced plaintiff $57.60 to pay the freight on the machine from Bunkie to Lewiston, and it reconvened against plaintiff for that amount.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendants in solido for the amount sued for with recognition of a vendor’s privilege on the machine, and the defendants appealed.

OPINION

The only question presented by the record for our decision is whether defendant purchased the machine from plaintiff. The petition and answer allege and the parties testified that plaintiff was to have the machine transported to Lewiston and defendant was to there inspect and test it and that “if the same was satisfactory for the work for which said partnership desired to use it, then it wouid pay to your petitioner $500 and the loading and unloading charges, and that notwithstanding said engine was unloaded at Lewiston, defendant has never used the same and has never tried it to determine its usefulness for the work for which defendant desired it.”

The plaintiff himself testified:

“Q. So, at the time you entered into this agreement, were they to inspect the tractor, operate it, and try it out, after it was delivered at Lewiston, before the deal was finally consummated?
“A. Yes, sir; it was to be shipped over there, and they were to try it out on the gravel pump, and if it proved satisfactory they were to pay me for it.
“Q. Mr. Satterthwait, has the machine been moved from where you unloaded it?
"A. No, sir; sitting right on the planks we put it on when unloaded.
“Q. Has the partnership ever fired up this engine or tried to use it?
“A. Not to my knowing.
“Q. Well, Mr. Whitman testified the governors were off of it.
“A. Yes, sir.
“Q. Why were they removed?
“A. I took the governors off to keep somebody from stealing them.
“Q. When did you take them off?
“A. I think the same day, or the next day, we unloaded.
“Q. Did any member of the partnership know you had taken the governors off and had them?
“A. I don’t know whether they did or not.
“Q. Well, after you unloaded it there, did any member of the partnership ever tell you anything at all about the engine, whether serviceable or not serviceable, or that they wanted it or didn’t want it?
“A. No, sir; they never said anything about it.
“Q. Now, you allege further, that the agreement was that if this machine was not satisfactory for the purpose for which they wanted it, after they had tried it out, they would pay the freight on it, and deliver it to you in Alexandria?
“A. Yes, sir; to deliver it, free of charge, back to Alexandria.
“Q. Have they ever offered to do that, even?
“A. Well, Mr. Herndon spoke about it, when I went after them once to know what they were going to do about the pay, and he said they would deliver it back to Alexandria; and I told him I could not accept that, on account they had never tried the boiler out.
“Q. And you admit that Mr. Herndon offered to return it, and you refused to accept it?
“A. I did refuse, on the ground that they never tried the engine out at all.”

Oreley Satterthwait, ’ plaintiff’s son, testified:

“Q. Your father represented to Mr. Herndon that the boiler and engine and everything was in good condition?
“A. Yes, sir.
“Q. And Mr. Herndon agreed to use it, if perfectly satisfactory when shipped up there?
“A. YeSj sir.
“Q. You didn’t say anything to Mr. Herndon and Mr. Duncan about taking these governors and things off the boiler?
‘•A. No, sir.
“Q. Your father is the one that had you take these off?
“A. Had me take them off and bring them in.
“Q. To Alexandria?
“A. Yes, sir.
“Q. How far is it from Alexandria to Lewiston?
“A. I don’t know how far — -must be about fifteen miles, I reckon — -something like that.
“P. And these governors and other things you took off the engine are still in Alexandria?
“A. Yes, sir; down at my father’s.”

It is quite clear from what has gone before that there never was a completed sale of the machine, for the reason that defendant never accepted it.

Three things are essential tc constitute a sale, namely: the thing, the price and consent of the purchaser. Civil Code, art. 2439.

Here the defendant never gave its consent to the sale. The agreement between plaintiff and it was that if after inspecting and testing the machine defendant was of the opinion it would answer the purpose for which it wanted the machine it would pay for it $500 and the cost of the loading at Bunkie and unloading at Lewiston; but tile defendant never inspected or tested the machine, and neither expressly nor by implication signified to plaintiff that it would do the work for which it was wanted or that it accepted the machine, and therefore the sale was never completed and defendant never became bound to pay plaintiff the $500 or the cost of loading or unloading.

“Things of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold, until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale.”

It may be that plaintiff has an action against defendant to recover damages for defendant’s failure to inspect and test the • fitness of the machine for the purposes for which it desired it, but this is not such an action.

Defendant does not press its reeonventional demand and we therefore assume it is abandoned. If not, however, we do not think it entitled to recover the transportation charges in view of the fact that the machine was transported to Lewiston for the convenience of defendant in inspecting and testing it and that defendant never did inspect or test it.

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected and his suit dismissed at his cost. Reserving to- him, however, the right to bring any other action in the premises he may he advised to.


text:
    No. 2939
    Second Circuit
    BROWN ET AL. v. WARE ET AL.
    (July 1, 1929. Opinion and Decree.)
    John B. Files, of Shreveport, attorney for plaintiffs, appellants.
    Bryan E. Bush, of Shreveport, attorney for curator ad hoc for E. M. Blake, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for Hamilton Ivins, defendant, appellee.
   REYNOLDS, J.

Plaintiffs, H. B. Brown and Bettie Brown Wilkinson, sued T. H. Ware and E. M. Blake to annul a lease granted by them to the former of S.% of S.E.1^ of section 21 township 22 north, range 15 west in Caddo parish, Louisiana, dated March 16, 1920, and recorded in book 146 of the conveyance records of said parish at page 648, for exploitation for oil and gas, and for $1250 as damages alleged to have been sustained by them by reason of the defendants’ failure to comply with the terms of the lease.

They alleged that T. H. Ware had sold the lease and assigned to E. M. Blake, a non-resident of the state of Louisiana and resident of the state of Iowa, all his rights thereunder; and that on December 5, 1925, Blake had assigned to Hamilton Ivins all of his rights under the lease insofar as it affected the S. E. % of S. E. % of section 21 township 22 north, range 15 west.

It is alleged, in substance, that neither Ware nor Blake had complied with the obligations imposed on the lessee.

Bryan E. Bush was duly appointed curator ad hoc for the non-resident defendant, E. M. Blake.

The curator ad hoc filed a plea that Hamilton Ivins was a necessary party defendant and that plaintiffs be required to make him a party and bring him into court as such or that their petition be dismissed.

Plaintiffs filed an amended petition in which Hamilton Ivins was made a party defendant.

In the amended petition plaintiffs declared that T. H. Ware was not a necessary party to the action and that he was made a party defendant through error and prayed that he be dismissed from the suit.

The curator ad hoc on behalf of E. M. Blake and Hamilton Ivins filed a joint answer, in effect a general denial.

On these issues the case was tried and there was judgment rejecting the plaintiffs’ demands and dismissing their suit and they have appealed.

OPINION.

The defendant Hamilton Ivins has filed in this court a written and signed declaration “that he has no further interest in the subject matter of this litigation and now abandons the defense heretofore made.”

No appearance was made in this court on behalf of the curator ad hoc or the nonresident defendant E. M. Blake nor has any brief been filed on behalf of either.

The defendant T. H. Ware having been dismissed from the suit on motion of plaintiff before trial in the lower court is not now before this court.

The evidence shows that by act dated March 16, 1920, recorded in book 146 of the conveyance records of Caddo parish, Louisiana, at page 648, plaintiff leased to T. H. Ware the S. % of S. E. % of section 21 township 22 north, range 15 west, in Caddo parish, Louisiana, for exploitation for oil and gas under certain terms and conditions not necessary to be mentioned.

It is alleged that T. H. Ware assigned the lease to E. M. Blake, and presumably he did, though we find no evidence of it in the record, as the evidence shows that by act dated December 5, 1925, recorded in conveyance book 220 of said conveyance records at page 781, E. M. Blake’ assigned the lease to Hamilton Ivins insofar as it affected the S. E. % of S. E. % of section 21, township 22 north, range 15 west.

The evidence shows that after some effort at exploitation for oil and gas all claimants of any of the rights granted by the lease abandoned the land and in effect surrendered the lease.

Therefore plaintiffs were entitled to judgment annulling the lease for this reason.

In our opinion the evidence does not warrant our rendering, a judgment in favor of the plaintiffs against any of the defendants for damages.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiffs H. B. Brown and Bettie Brown Wilkinson and against the defendants E. M. Blake and Hamilton Ivins cancelling and annulling the lease of the S. % of S. E. Vi of section 21, township 22 north, range 15 west in Caddo parish, Louisiana, granted by H. B. Brown and Bettie Brown Wilkinson to T. H. Ware by act dated March 16, 1920, and recorded in book 146 at page 648 of the conveyance records of said parish.

It is further ordered, adjudged, and decreed that defendants pay the costs of suit.


text:
    No. 3356
    Second Circuit
    MODEL CLEANERS & DYERS, INC., ET AL. v. FALCONE
    (July 1, 1929. Opinion and Decree.)
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiffs, appellees.
    R. D. Fuller, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The defendant, Mrs. Charles Falcone, issued execution on a judgment which she obtained against Model Cleaners & Dyers, Inc., under which property in the hands of Excelsior Steam Laundry Company, Limited, was seized as the property of Model Cleaners & Dyers, Inc., and in the present action by Model Cleaners & Dyers, Inc., and Excelsior Steam Laundry Company, Limited, to annul the judgment and restrain the sale of the property judgment was rendered decreeing the judgment null and void and restraining the sale of the property, and defendant, Mrs. Falcone, appeals.

There was not any objection to the method of procedure in which the plaintiffs attacked the judgment ’ and obtained an injunction restraining the sale of the property, and the only question presented on the appeal is, whether or not the evidence established that the judgment in favor of Mrs. Falcone against Model Cleaners & Dyers, Inc., was valid, and whether the property seized was the property of Excelsior Steam Laundry Company, Limited.

The judgment was attacked on the ground that it had been rendered without citation, or any appearance on the part of Model Cleaners & Dyers, Inc., and the injunction was issued on the allegation that the property seized belonged to Excelsior Steam Laundry Company, Limited.

In the suit of Mrs. Falcone against Model Cleaners & Dyers, Inc., the return on the citation shows that process was served on C. P. Keese, Mgr., at the domicile of Model Cleaners & Dyers, Inc., and the testimony of Keese was that he was not in any manner connected with Model Cleaners & Dyers, Inc., at the time of service of process on him, and there is not any evidence in conflict with his statement, and the evidence further shows that there was not any appearance by Model Cleaners & Dyers, Inc., and also that the property seized was the property of Excelsior Steam Laundry Company, Limited. And under the evidence presented the judgment was correct and is affirmed.


text:
    No. 3511
    Second Circuit
    COCHRAN v. HOWARD ET AL.
    (July 1, 1929. Opinion and Decree.)
    Hakenyos, Provosty and Staples, of Alexandria, attorneys for plaintiff, appellant.
    Gus A. Yoltz, of Alexandria, attorney for defendants, appellees.
   ODOM, J.

James Howard borrowed $754 from J. Ferdinand Peterman and gave Peterman his three notes for said amount, secured by a mortgage on certain real estate in South Alexandria. J. Ferdinand Peterman immediately endorsed the notes in blank and turned them over to his two children, Theresa Peterman and Joseph Peterman, whose funds their father had used in making the loan, although he had taken the notes and the mortgage in his' own name. The notes and the mortgage were all dated September 20, 1922, the notes falling due respectively in one, two and three years from their date. Howard failed to pay the notes when due and the elder Peterman, who represented his children, pressed him for settlement without avail and threatened foreclosure proceedings. Howard, who is a colored man, was then employed hy Samuel D. Cochran, who, to accommodate his employee and to prevent his property from being sold from under him, purchased the notes on October 14, 1925, after they were all overdue. On the day the notes were delivered to Cochran, Theresa Peterman and Joseph Peterman wrote their names on the back of them. Howard failed to pay Cochran the amount of the notes and, in April, 1928, two years and five months after he had purchased them from the Petermans, he foreclosed the mortgage and had the property sold. The amount realized from the sale was insufficient to pay the notes, interest and costs, and by this suit Cochran is pursuing the Petermans, as endorsers on the notes, for the deficit. Their defense is that the notes were never presented to them for payment and that they had no notice of non-payment or dishonor until about the time of the filing of this suit, and that the failure to present them for payment and to give notice of dishonor completely discharged them as endorsers. Plaintiff’s demands were rejected by the lower court and he'has appealed.

These defendants, not being primarily liable for the payment of the notes, are sued as endorsers, and it is conceded by counsel for plaintiff that in order to hold endorsers of commercial paper, whether the endorsement be made prior or subsequent to maturity, the transferee must give the endorsers timely notice of nonpayment and dishonor, which was not done in this case, unless there is a waiver of such notice, express or implied. But they contend that there was a waiver of notice in this case and, upon that point, they rest their suit.

Whether defendants did in fact waive such notice is the question to determine.

The notes were made payable to J. Ferdinand Peterman and the mortgage was made out to him. On May 15, 1927, about one year and eight months after the notes were transferred to Cochran, the mortgage debtor, Howard went to Peterman and told him that he had paid the notes and that they had been lost and at the same time presented to him a written authorization to the recorder of mortgages to cancel and erase the mortgage from the records. The elder Peterman signed the authorization and the recorder cancelled the mortgage. As a matter of fact, the notes had not been paid by Howard, but were then alive and in the hands of Cochran. The court, at the instance of Cochran, annulled the cancellation and reinstated the mortgage.

It is manifest that Howard made false representations to Peterman in order tc get him to sign the order to cancel. It is also clear, and we believe conceded, that Peterman was guilty of no fraud in signing the order and that he did so in the belief that Howard had paid the notes, which belief was based upon what Howard told him. Counsel for plaintiff in brief say:

“Plaintiff testifies that he did not make demand on any one but James Howard, the maker, except prior to the suit. Nevertheless, plaintiff maintains that waiver of notice as to the defendant, J. Ferdinand Peterman, is implied, for the reason that in granting the cancellation of the mortgage with which the notes were identified, (this cancellation being either fraudulent or due to his carelessness or neglect) it put him on perpetual, constructive notice that the notes had not been paid, and further notice or demand was unnecessary.”

We cannot so hold. Howard told Peter-man that the notes had been paid and lost. Peterman says he believed that, and we think he did. Insofar as what Howard told Peterman about the notes may be considered as notice of any kind, it was notice that the notes had been paid — not that they had not been paid, as counsel argue. There is nothing about the transaction which indicates that the elder Peterman intended to waive notice of dishonor. Apparently, he knows but little about commercial transactions. He was born in Belgium, has no English education, although he can. write his name, was seventy-nine years old at the time of the trial, and, while thrifty probably in a small way, he depended upon a man named McDermott to advise him as to the making of loans and collections, although there is nothing to show that he consulted him about the sale of these notes. He signed the authorization to cancel without reading it or having it read. He says Howard told him that the notes were paid and lost, and that his authorization was necessary in order that the property might be cleared. He thought it was proper for him to sign and he did so.

Counsel for plaintiff in brief say: “Plaintiff relies upon the fact that this is not an ordinary commercial transaction,” citing the fact that the notes were endorsed and transferred to plaintiff after maturity and after the holders had threatened foreclosure proceedings. If that has any effect at all, it weakens plaintiff’s case. The testimony shows that Cochran, the plaintiff, knew that the Petermans were about to foreclose and that he took up the notes as an accommodation to his hired man, Howard, to save his property. Cochran testified:

“Peterman understood that I was simply buying these notes to help the negro out in order to save his property.”

He very evidently had no thought at the time he purchased the notes of looking to the endorsers for payment and that, we think, is the reason he did not give them the notice required by law. His long silence lulled them to sleep. If he had given them timely notice, they would probably have been able to protect themselves.

Under the law and the facts disclosed, plaintiff cannot recover. The judgment is correct and is therefore affirmed, with costs.


text:
    No. 3495
    Second Circuit
    BANK OF WINNFIELD v. HOLMES
    (July 1, 1929. Opinion and Decree.)

      R. W. Oglesby, of Winnfield, attorney for plaintiff, appellee.
    C. H. McCain, of Colfax, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff, Bank of Winnfield, sued defendant, J. L. Holmes, to obtain judgment against him for $1,000 with interest thereon at the rate of 8 per cent per annum from September 1, 1927, and 10 per cent on the amount • of principal and interest, as attorney’s fees, on a promissory note for $1,000, dated March 4, 1927, signed by E. C. Paulette, drawn payable to the order of ¡plaintiff on May 3, 1927, and bearing interest at the rate of 8 per cent per annum from its date until paid and stipulating payment of 10 per cent on the amount of principal and interest, as attorney’s fees, if placed in the hands of an attorney for collection, and endorsed by the defendant. Endorsements on the note show that the interest thereon was paid up to September 1, 1927.

The defense is that the note—

“was liquidated and paid by E. C. Paulette on the 28th day of March, 1927, wherein the said E. C. Paulette, in a transfer or sale of various oil and mineral contracts, and etc. for the sum of sixty five hundred dollars, to the Bank of Winnfield, a copy of said sale being hereto attached and made a part hereof. Although the consideration is expressed in cash, in fact no cash was paid, the real consideration of the said contract being the payment of the note sued on herein and other debts due by said Paulette to Bank of Winnfield.”

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

OPINION

Only one question, and that a question of fact, is presented by the record, and that whether the note sued on was paid.

And the burden of proving the fact was on the defendant.

Yaldoz vs. O’Keefe, 2 La. App. 362.

The defendant, J. L. Holmes, testified that about thirty days after the note was made he noticed that Paulette had made the transfer to the plaintiff and he mentioned the matter to him and that Paulette said the note was included and that he asked him where the note was and Paulette told him the defendant kept it so it could keep his business straight, and that—

“Mr. Paulette and I gets in my car and come to Winnfield right along about the first of April or a few days after and come in to the Bank of Winnfield and asked Mr. Bailey (president of the bank), and I said: ‘Mr. Bailey, Mr. Paulette said he transferred this stuff to you and I want to know if this thousand dollar note of mine was included in it’ and he said ‘yes’; and he agreed to give Mr. Paulette a letter showing what was included in the transfer.
“Q. He told you this note had been paid?
“A. Yes, sir; paid and taken care of in this transaction.
“Q. If Mr. Bailey told you that, on that occasion, you say about a month after the note was given, why didn’t you get that note?
“A. Mr. Bailey stated he was keeping all the notes there as a record, so that he could credit all the oil runs on the notes,
“Q. Do you know where that letter is?
"A. I have an idea where it is.
“Q. Where is it?
“A. I think Mr. Elder has it . in his files.”

In the transfer by Paulette to the Bank of Winnfield referred to Paulette assigns to the Bank of Winnfield for a recited consideration of $6500 in cash,

“all his right, title and interest in and to that certain oil, gas and mineral contract sold to the Gulf Refining Company of Louisiana on the 19th day of November, 1926, which, contract is signed by J. L. Holmes, E. C. Paulette, C. L. McCurry, J. W. Elder, S. L. Digby, Dhu Thompson, and C. B. Roberts and the Gulf Refining Company of Louisiana on a certain lease executed by L. C. Swope to C. L. McCurry, agent, March 17, 1925, on certain lands situated in the parishes of Grant and Winn, Louisiana, duly recorded in the cenveyance records of the said parishes, a copy of said contract being attached hereto and made a ipart of this assignment. And also his right, title and interest in and to one thirty-second overriding royalty of all oil that may be saved from that produced from each well on the premises described in the assignment, said contract having been entered into by the same parties above referred to on the 19th day of November, 1926.

Holmes was asked :

“Q. You know that the Bank of Winnfield foreclosed on all that stuff down there and sold it, don’t you?

And he answered:

"A. I know they foreclosed and sold it.”

E. C. Paulette, the maker of the note, testified:

“Q. Paulette, do you mean to tell the court that the Bank of Winnfield gave you that indebtedness for this property assignment?
“A. I mean to tell you that you drew the papers and know all about the transaction.
“Q. Don’t you know- that that was a matter of security to the Bank of Winn-. field?”

Gn objection of counsel for defendant the witness was not permitted to answer this question.

“Q. You have been talking about the letter, where is it?
“A. Judge Elder has it, I suppose; I turned it over to him.
“Q. Don’t you know that that letter you are talking about stated that when you paid this money back, that you borrowed from the Bank of Winnfield, that this stuff would be deeded back to you?
“A. I thought this was a mortgage and loan, which it was, and when it went on record I found out it was a straight sale of my right, title and interest — a straight sale for ,$6500; and Mr. Holmes and myself come back and got a letter that this stuff would be deeded back to me when this $6500 was paid.”

J. W. Elder testified that he represented Paulette in the transaction between him and the Bank of Winnfield wherein the assignment was given, and he was asked:

“Did you have a conversation with B. W. Bailey, president of the Bank of Winnfield, as to whether the note sued on, for $1,000, had been paid and included in a previous settlement?”

And he said:

“That was some time ago and my recollection is not clear about everything that happened.”

B. W. Bailey, the president of the plaintiff bank, testified that the assignment by Paulette to the Bank and claimed by him to be a sale was a mere security.

“Q. It says in it, the instrument, it is a sale?
“A. Perhaps so; but it was never treated as a sale. Besides, if we had regarded it as a sale, why did we foreclose on it, and sell it?”

He was asked if he had told Holmes in Paulette’s presence, as testified by the former, that the note had been liquidated and paid by the assignment, and he answered:

“I am very positive I never made any such statement.”

He was then asked if he had ever made any such statement to J. W. Elder, and he replied:

“No, sir; I did not.”

There is no contention on the part of defendant that the note was paid otherwise than by the assignment; and that instrument did not evidence a sale but a security. That Holmes only intended it as such appears from his surprise on reading it on the public records and his and Paulette’s going to Bailey and. demanding of and receiving from him a counter-letter acknowledging that it was only a security.

Bailey never contended that it was anything more than a security. As a matter of fact he brought suit on it and foreclosed Paulette’s rights in the pledged property by judgment and sale.

If Paulette had believed he was paying the note by the assignment he would have demanded and received it from the Bank and in that case Holmes would at least have insisted that his endorsement be cancelled. But Paulette did not ask that it be returned and Holmes did not ask that his endorsement be cancelled.

In the case of Allison-Langston Supply Co., Inc., vs. E. C. Paulette, 10 La. App. 484, 119 So. 709, we had under consideration the nature of the very same transfer, and we there held that the instrument was not a sale but a security.

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