text:
    No. 4094
    Second Circuit
    NORTON v. LOUISIANA ICE AND UTILITIES, INC.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    J. B. Nachman, of Alexandria, attorney for plaintiff, appellee.
    Overton & Hunter; of Alexandria, and A.R. Christovich, of New Orleans, attorneys-for defendant, appellant.
   DREW, J.

Plaintiff sued for $5,000 for injuries to his eyes, caused by the explosion 'of a bottle ' containing a strong solution of ammonia water. He alleged that defendant was engaged in the refrigerating business and, together with other things, that it installed and maintained ice cream cabinets with Frigidaire equipment in drug' stores, restaurants, etc., using its frozen products; that defendant had installed such an ice cream cabinet in the establishment conducted by Maxie Bohrer in Alexandria, La., known as Midway Station; that Maxie Bohrer conducted a hamburger and sandwich shop, in which he also sold ice cream made by defendant; that that certain cabinet was the property of defendant, and was kept in repair by it; that on June 24, 1930, in the afternoon, the agent of defendant went to the Midway Station to repair the cabinet aforesaid; that, in making the repair, the strong solution of ammonia water was. used; that this solution is intrinsically dangerous and volatile, and, when subjected to warm temperature, gives off a gas that is subject to explosion; that the said agent carried to the Midway Station a bottle of said solution and placed same on the counter where the customers, usually ate; that before he had completed his repairing the agent was called away on other business of defendant company, ■ and, in leaving, failed to remove the bottle of ammonia water; that later in the afternoon plaintiff came into the sandwich shop to secure something to eat. He took a seat at the second stool from the end of the counter. Seeing the bottle directly in front of him, he attempted to move it to one side when .the explosion occurred, throwing the solution into his eyes and face; that the bottle was not labeled, and he did not know its contents. He alleged gross negligence on part of defendant through its agent in leaving a dangerous solution on the counter without label or warning to any one of what the bottle contained; alleged the injury to his eyes, the damage caused him thereby, and prayed for judgment accordingly.

Defendant answered, admitting that the employee who was repairing the cabinet was its agent and the cabinet its property, and, if the agent was negligent, admits its liability. It denies that its agent was guilty of any negligence, and alleged that when he left the Midway Station he left the bottle of ammonia water at the bottom of the counter on the floor in a perfectly safe place, and pushed so far back as not to interfere with persons, walking behind the counter; that unknown to its agent, some one placed the ammonia on the counter. It further plead contributory negligence in that plaintiff took up the bottle, unloosed the cork, and attempted to smell the contents when the fumes got in his .eyes.

There was judgment in the lower court for plaintiff in the sum of $250 for pain and suffering, and in the sum of $1,000 for injury to his eyes. Defendant has appealed, and plaintiff has answered the appeal, praying that the judgment be increased to $5,000.

That the bottle on the counter contained 28% solution of ammonia water is admitted by defendant, and that its agent carried it to the Midway Station to be used in repairing the frigidaire in the ice cream cabinet is also admitted. It is also admitted that the injury to plaintiff was caused by the cork either blowing out or being removed by plaintiff. Although defendant denied in answer that the solution is inherently dangerous and volatile for the reason that it is subject to explosion without the aid of an outside agency, it is not seriously contended in this court. The oral testimony in the record of the pharmacist is. convincing that it is inherently dangerous and volatile. There was also offered in evidence extracts from the United States Dispensatory, proved to be recognized authority by the pharmacists who were witnesses. From these extracts-, we find the following:

“Stronger Ammonia Water, aqi. Ammon. Fort.
“An aqeous solution of ammonia (NH317.03) containing not less than 27 per cent nor more than 29 per cent by weight, of NH3. Preserve it in a cool place in partially filled, strong, glass-stoppered bottles made of hard glass free from lead. Great caution should be used in handling this liquid.
“Great care should be exercised in opening bottles containing stronger ammonia water. It is safer if the ammonia has been kept in a warm room to cool it with ice before attempting to withdraw the stopper as the liberated gas, when warm frequently is forced out with extreme violence and accidents, which have resulted in injury to the sight of the operator are recorded.”

We therefore conclude tht the ammonia solution was a volatile gas-forming liquid, liable to explode when left in a warm place, and that defendant’s agent was charged with this knowledge, and his duty was to exercise a degree of care in handling this dangerous article that was commensurate with the dangerous character of the article, and in such a manner as not to endanger persons who might come in contact with it.

The preponderance of the testimony, as found by the lower court on questions of fact, is with the plaintiff. The bottle of ammonia was placed on the counter by defendant’s agent and left there for possibly two hours. There was no label on the bottle, and no one was warned of its contents. Plaintiff did not know it contained a dangerous solution. The sandwich shop was hot, there being in it at the time three different stoves or griddles burning, and, when defendant’s agent began work on the Frigidaire, it was necessary to cut off all the fans, they being connected on the same switch. It is shown that June 24, 1930, the day of the accident, was very hot, and, with three fires burning, and no fans to drive the hot air out of this small place, it is- easy to imagine that the shop was very warm, and certainly not a place to leave a 28% solution of ammonia water for a period of time of two hours, and defendant’s agent was grossly negligent in leaving it on the counter where the unsuspecting customers of the sandwich shop would likely come in contact with it. Plaintiff came into the shop between 4:30 and 5 o’clock, ordered something to eat, and took his seat at the counter. Noticing the bottle in front of him, he did the natural thing in attempting to move it to one side, at which time the stopper blew out and the contents of the bottle went into his face and eyes. The negligence of the agent of the defendant in placing the bottle on the counter and going away and leaving it there was the sole proximate cause of the accident, and the defendant is liable for the damages to plaintiff caused by the accident.

The evidence does not justify the court in finding that plaintiff took the bottle in his hand, removed the cork, and attempted to smell the contents. This is the plea of contributory negligence alleged by defendant, and the burden is on it to establish the negligence of plaintiff under its pleading. In this- it has failed.

Plaintiff was burned particularly on the left cheek and eyebrow, and over the top angle of the nose and on the left side. The left eye was burned, as well as the cheek and face and the right eye, and some scattered places on the right cheek were also burned. The right eyelid was not burned as badly as the left. He was confined to his bed in the hospital and at home from June 24th to July 12th, and treated by Dr. McGill until July 22d, when he was put in charge oi Dr. Littell, an eye specialist. He suffered great pain during that time, and could not see out of right eye for four or five days, and out of left eye for ten days or two weeks. Dr. Littell found a slight ulcer in. the right eye and a large ulcer in the left eye, practically covering the entire pupil. In August, following, he was. fitted with glasés, and, when using them, could see normally, and in February following his eyes had grown much worse. He had at the time of trial a vision of 21/100 in the left eye and 20/70 in the right eye, and the specialist 'holds little hope for further recovery of vision.

Plaintiff has been an officer of the law for the past ten years, and was a traffic policeman at the time of the injury. He has held his job since the accident, ho doubt due to the big-heartedness of his superior officer. He certainly would not be selected in a competitive test with his defective vision. The award for pain and suffering we will not disturb, but think the award for partial impairment of vision of $1,000 is inadequate and not in line with the jurisprudance of this, state, and that same should be increased. The average amount allowed for the loss of one eye by the courts of this state is approximately $6,000, and in the case of Thompson v. Y. & M. V. R. Co., 47 La. Ann. 1107, 17 So. 503, the court allowed the sum of $2,500 for the partial impairment of one eye. Under all the circumstances and conditions of this case, we think a proper judgment for the partial impairment of the vision of plaintiff would be $2,500.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by increasing the judgment in favor of plaintiff from $1,250 to $2,750, and, as so amended, the judgment be affirmed.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3982
    Second Circuit (Second Division)
    CRICHTON CO., LTD., v. SMITH
    (November 18, 1931. Opinion and Decree.)

      Drew & Richardson, of Minden, attorneys for plaintiff, appellee.
    Stewart & Stewart, of Minden, attorneys for defendant, appellant.
   CULPEPPER, J.

On September 8, 1919, the plaintiff, Crichton Company, Ltd., sold and conveyed to J. H. Long, partly for cash and partly on terms of credit, represented by vendor’s lien and mortgage, a tract of several hundred acres of land lying in the parish of Webster. Plaintiff reserved one-half of all oil, gas and other minerals in and under the land, with right of egress and ingress for purposes of exploring, mining and drilling for and removing same. Purchaser, in turn, sold the land to L. M. Grigsby and W. J. Monzingo on the same day- he bought it, for the same price and bn the same terms on which he had purchased it, except as to cash payment, the purchasers assuming the payment of the notes given by Long to plaintiff. At the close of the description in this deed is shown the following clause: “* * * less one-half of the minerals which were reserved by Crichton Co., Ltd., in deed to vendor herein.”

Under these conveyances, title to the minerals in and under these lands became vested, one-half in the plaintiff and one-half in Grigsby and Monzingo.

On June 16, 1924, said plaintiff, Grigsby and Monzingo for a cash consideration of $880 leased to W. B. Smith, the defendant the oil and gas in and under 91 acres of the lands conveyed by plaintiff to Long. While the' mineral lease is not in the record, its execution and existence was alleged by plaintiff and admitted by defendant. The record does not show for what period of time the lease was given. On the 19th of June, 1924, W. B. Smith, lessee, executed to the lessors, the following obligation:

“Whereas, Crichton Co., Ltd., L. M. Grigsby and W. J. Monzingo did on June 16th, 1924, execute an oil and gas lease in favor of W. B. Smith, covering the following described property, to-wit:
(Here follows description of the 91 acres) “* * * for the consideration- of three-hundred eighty dollars, cash, the receipt of which is hereby acknowledged, and
“Whereas, this 91 acres is contiguous to and forms a part of the block of acreage generally known as the Stack & Egger Block, it is agreed by the vendee of the lease, W. B. Smith (who is now the owner of the Stack & Egger block of leases), that in the event he, the said W. B. Smith, or his heirs, successors and assigns, shall fail to complete a well producing oil in commercial quantities * * * or a gas well producing gas in commercial quantities, on some part of said block of leases herein referred to as the Stack & Egger block of leases, before the expiration of said leases, that he, the said W. B. Smith, his heirs, successors and assigns, shall and will pay unto the said Crichton Co., Ltd., W. J. Monzingo and L. M. Grigsby, an additional sum of Five Hundred Thirty Dollars ($530.00). * * *
“(Signed) W. B. Smith.
“Attest:
“C. S. Allen
“L. F. Stephens.”

The instrument is not signed by the obligees named in it. It was authenticated by affidavit of one of the witnesses, and recorded in February, 1926, in the conveyance records of Webster Parish.

On February 4, 1926, plaintiff brought foreclosure suit against Grigsby and Monzingo upon certain of the unpaid series of notes they had assumed at the time they purchased from J. H. Long, and, after a judgment was had ordering the lands mortgaged to be sold in settlement, the lands purchased (which embraced the 91 acres covered by the gas and oil lease) were sold at public auction June 25, 1927, to T. A. Glass.

On March 22, 1928, W. J. Monzingo and L. M. Grigsby for $50 cash executed a formal written release to W. B. Smith releasing him from any obligations to them arising out of the obligation of June 19, 1924, hereinabove shown, and authorized the clerk of court of Webster parish to cancel and erase said agreement or bond in so far as their interests were concerned.

Plaintiff brought this suit on April 15, 1930, against W. B. Smith to enforce collection of the full amount named in the instrument of June 19, 1924, viz.: $530, with' the alternative plea and prayer that in event the court should not' give plaintiff judgment for the full $530, then for one-half the amount, or $265, with legal interest from judicial demand.

There was judgment in favor of plaintiff for $265 with interest, and defendant appealed. Plaintiff has not answered the appeal.

Plaintiff alleges and defendant admits that defendant failed to bring in a well producing oil or gas in commercial quantities on any of the lands embraced in the Stack & Egger block of leases during the life of the leases thereon. Because of this failure on the part qf Smith, and because the leases had expired, plaintiff alleged Smith is indebted to plaintiff under the June 19, 1924, obligation, in the sum prayed for in the petition.

Defendant admits the execution of the document, and in his testimony on witness stand admitted he had failed to bring in a well on any of Stack & Egger block as alleged, but denies that he is in any way obligated tq plaintiff thereby. Previous to filing answer, defendant filed an exception of no right or cause of action, which was referred to the merits. Defendant still contends that the exception is good and should have been sustained by the lower court, because the document sued on was executed by defendant without consideration, and hence is a nudum pactum.

There was no evidence either oral dr documentary offered, by either plaintiff or defendant to explain why defendant executed the document sued on. Plaintiff did not allege,, nor did it prove that defendant reaped any gain or advantage by executing the document. No evidence was offered to show that. plaintiff gave defendant anything, tangible or intangible. No right, privilege or advantage, which defendant did not already have under the lease which plaintiff, Monzingo and Grigsby had given him only three days before, was disclosed. Plaintiff and his co-lessors did not sign the document. The document, however, refers to the lease and stipulates that W. B. Smith or his successors or assigns (not of the lease plaintiff and his co-lessors had just executed to defendant, hut of the block of other leases referred to) shall pay to plaintiff and his co-lessors “an additional sum of Five Hundred Thirty Dollars.” The document sued on evidently grew out of something in connection with the lease of June 16th and was evidently related in some way to the prospect of obtaining oil on the adjoining leases, which would operate advantageously to the defendant. While the testimony is silent as to what this advantage was, the legal presumption is that it existed.

Plaintiff made no pretension that any extension of time was intended to be given or was given on the lease, nor that any advantage would accrue or did accrue to defendant as a result of the execution of the obligation. Nor has defendant shown that no advantage or additional rights accrued to him by his signing such a document.

Neither counsel for plaintiff nor defendant have sought to explain the reason for the execution of the document. Counsel for defendant, however, contends that the document on its face fails to show any consideration; that the $380 paid for the lease already executed was in full consideration for all the rights and privileges expressed or given the lessee therein. We dp not have a copy of this lease before us, hence are unable to say just what is therein recited. While an obligation without a cause, or with a false or an unlawful cause, can have no effect (C. C., art. 1893), one is none the less valid, though the cause be not expressed (C. C., art. 1894). The true consideration, if not expressed, can always be shown. Moore v. Pitre, 149 La. 910, 90 So. 252. It is likewise true that the want of consideration can always be shown. The same rule works both ways, depending upon the party whose interest it is to show its existence or non-existence. . Furthermore, a just consideration or cause is always presumed and understood unless the contrary be proved. Read v. Hewitt, 120 La. 290, 45 So. 143. And the burden of proof to show want of cause or consideration is as in this case, upon the defendant. Pack v. Chapman, 16 La. Ann. 366; Martin v. McClosky, 155 La. 604, 99 So. 477.

Defendant must have had some interest to conserve in connection with the lease he had obtained from plaintiff, Monzingo and Grigsby, otherwise the presumption is that he would not have signed this obligation. It is not shown in the document what that interest was. Nevertheless, that fact did not of itself make the obligation invalid. If, however, it be a fact that Smith did not have some object or interest to conserve, the burden was upon him not only to allege it, but to prove -it* Ete alleged lack of consideration in his. answer, and therefore admits it to be a necessary defense, but he has failed to prove it. The document itself, which was filed in evidence by plaintiff and relied on by plaintiff, does not, in our opinion, evidence a lack of consideration. It merely fails to show affirmatively its existence. Under the law a just and true consideration is presumed until it be shown by defendant that none existed.

“A valuable consideration may, in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility of act, or labor or service on the other side; and if either of these exist, it will furnish a sufficient valuable consideration to sustain the making or endorsing of a promissory note in favor of the payee or other holder.”

Benner v. Van Norden, 27 La. Ann. 473; Story on Promissory Notes, sec. 186.

The document executed by defendant Smith as shown by its preamble, indicates, if it does not express, that defendant had some interest to conserve in undertaking this obligation, and if he did not have, he should have shown it. This he failed to do and therefore a cause of action is shown, hence the presumption that a consideration actually existed still stands.

As to who is entitled to enforce the obligation sued on, and for what amount, we have this to say — that plaintiff is one of three obligees named in the instrument sued on. In the absence of assignment, it is presumed to be the lawful owner of this undivided one-half interest. The evidence shows that plaintiff owned a one-half interest in the minerals at the time the lease was executed, hence the interest conveyed by it in the lease is shown to have been a one-half. Therefore, in the absence of proof to the contrary, plaintiff would be entitled to a like proportion of the consideration for which the lease was given. Monzingo and Grigsby, it is true, released defendant from the payment of their interest in the obligation, but this could not have the effect of releasing defendant from the obligation flowing to plaintiff. Crichton Co., Ltd., owned one-half of the mineral rights and the other two lessors the other half. If the other two saw fit to release their interest in the obligation it certainly would not follow that such release operated to extinguish the rights of plaintiff.

The court is of the opinion, for the reasons assigned, that the judgment of the lower court is correct, and it is therefore affirmed.

DREW, J., recused.


author: JANVIER, J.

text:
    Orleans
    No. 13,847
    LEON v. KLEIN
    (January 11, 1932. Opinion and Decree.)
    Matthew A. Grace, of New Orleans, attorney for plaintiff, appellee.
    Elias Bowsky, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Leon sues for $300 which he alleges is the value of certain articles which he left with Klein for safekeeping in November, 1928. The articles consisted of an automobile battery recharger, certain shop equipment and four very old automobiles.

Klein admits that he received the articles enumerated but maintains that the battery recharger was sold by him, with plaintiff’s authorization, for the sum of $100, and that the four 'automobiles were removed by employees of plaintiff about a month after they were left with him. He also asserts that all of the property over which this, suit results, had very little value.

Defendant contends that when the battery recharger was sold, plaintiff knew that it brought only $100; that only $50 of the said amount was paid in cash, and that the said $50 was paid over to plaintiff by check, which check bore on its face a statement to the effect that it was to be received in full settlement for the battery recharger.

There was introduced in evidence the check referred to and it is for the sum of $50 and it bears on its. face the words “in full settlement of recharger.” This check was endorsed and cashed by plaintiff but he testified that when he cashed it the words above quoted were not on it.

There is evidence, which was apparently believed by the trial judge, and which is corroborative of plaintiff’s testimony, and we cannot say that the judgment based on this evidence is manifestly erroneous. In fact, we, ourselves, are still convinced from the evidence that the words which we have quoted and which now appear on the check we’re not there when the check was presented to plaintiff.

The value of the property is doubtful but since it was fixed by his honor below we feel that the ends of justice will be best served by not interfering on a question of amount where the amount as fixed by the trial court is not manifestly erroneous.

Only questions of fact are involved and, since the judgment appealed from is not patently incorrect, it is affirmed.


author: HIGGINS, J.

text:
    Orleans
    No. 13,858
    GERDE NEWMAN & CO. v. CURCURU
    (January 11, 1932. Opinion and Decree.)
    Ridgely Moise, of New Orleans, attorney for plaintiff, appellee.
    John A. Smith, Jr., of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by a wholesale grocery and produce company against a retail grocer to recover the purchase price of eggs sold by plaintiff to defendant, for future delivery, on April 25, 1930.

The defenses are, first, that the contract was a gambling transaction and, therefore, not enforcible at law, and, second, in the alternative, that the contract was dependent upon a condition subsequent, i. e., that the market would go above 35 cents per dozen for eggs in storage and that, as the condition was never fulfilled, the contract was unenforcible.

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

The record shows that the salesman of the plaintiff called upon defendant for the purpose of soliciting orders for cold storage eggs for delivery in the future; that the defendant gave an order for 25 cases of eggs at 35 cents per dozen, amounting to $262.50; that the defendant was to have free cold storage to December 31, 1930, and the privilege of accepting delivery at such times as he might wish; that the' defendant deposited the sum of $25, or a dollar a case, on account of the contract price; that the defendant, although repeatedly called upon to accept delivery of the goods, refused to do so, and that the plaintiff sold the eggs for the defendant’s account at a loss of $105; for which amount this suit is brought.

Taking up the defense in the above order, the record shows clearly that the contract was for 25 cases of eggs at 35 cents per dozen. There is no element of a gambling transaction in the contract because the price is for a definite and stated amount. In short it is a contract for future delivery and, if there is any element of speculation in the transaction, it is. on the part of defendant, who felt, because of advice he had received, that the market would advance. The market did not rise, but fell, and, being disappointed in this respect, he declined to accept delivery of the goods. The first defense is without merit.

On the second point the defendant contends that • it was agreed between himself and the salesman that, if the market advanced above 35 cents, he was to accept delivery of the eggs, but, if the market declined, he would not be bound by the contract. The salesman denies any such agreement, pointing out that, under those circumstances, the plaintiff would be permitting defendant to speculate at its expense. It is difficult for us to believe that a wholesale business house would enter into a transaction, where it had everything to lose and nothing to gain, and would be put in the position of financing a customer’s speculation. We conclude that the defense that the agreement was predicated upon a condition subsequent is not sustained by the evidence.

For the reasons assigned the judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    Orleans
    No. 13,849
    LAGARDE ET UX. v. LIBERTY SHOP, LTD., INC.
    (January 11, 1932. Opinion and Decree.)

      F. W. Gaudlin, M. R. DeReyna and E. K. Gaudet, of New Orleans, attorneys for plaintiffs, appellants.
    Eraste Vidrine, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This case results from an intersectional collision between a motor truck and an automobile.

The trial court, in dismissing the main and reconventional demands, evidentlv concluded that both drivers were at fault, and so it seems to us. Both drivers failed to stop, or slacken their speed, before entering the intersection and neither saw the other until just before the impact. Both, were guilty of negligence in failing to keep a proper lookout and in failing to stop, or slow down. The fact that -the corner where the accident occurred, Chestnut and Josephine streets, is what is known as a “blind crossing,’’ where it is difficult for drivers approaching the intersection at right angles to see each other, necessitates the exercise of care commensurate with the danger involved.

For the reasons assigned the judgment appealed from is affirmed.


text:
    Orleans
    No. 13,793
    JOHNSON v. SOUTHERN LIFE & HEALTH INS. CO.
    (January 25, 1932. Opinion and Decree.)
    Edward S. Spiro, of New Orleans, attorney for plaintiff, appellee.
    Solomon S. Goldman, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by a widow, as beneficiary, to recover the sum of $108, the face value of an industrial life insurance policy issued by the defendant on the life of her husband on August 8, 1927.

The defendant admits that it is a corporation organized and existing under the laws of the state of Alabama and that it is engaged in the industrial life insurance business in the state of Louisiana; that it issued the policy in question, but denies liability on the ground that the policy had lapsed for non-payment of several weekly premiums due prior to June 2, 1930; that on that date the insured applied to the company to have the policy reinstated and deposited the sum of $1.40, covering four weekly premiums, which was to be held as a deposit pending the company’s action on the question of reinstatement of the policy; that before the application could be sent to the home office in Birmingham, Alabama, the assured died on June 10, 1930, and therefore the beneficiary was not entitled to recover, as the policy had lapsed. Defendant also specially pleaded the following clause:

“This policy, having lapsed as herein provided, may, upon written application of the insured, accompanied by proof of good health and payment in full of arrears, be reinstated by the Company at its option, but only by endorsement of such reinstatement on the Policy itself, provided that no liability will be assumed by the Company prior to such endorsement on the policy, and provided further the Company will not be liable by reason of such reinstatement for any benefits for sickness commencing or accident occurring during the period of arrears, or for death caused by or resulting from any such sickness or accident.”

There was judgment in favor of the plaintiff in the sum of $108 and defendant has appealed.

Plaintiff makes the following contentions :

First, that on June 2, 1930, when the agent and the assistant manager and the inspector of the company called upon her husband at his home they stated that the policy would be immediately reinstated upon the payment of $1.40, representing four weekly premiums.

Second, that the defendant is estopped from invoking the clauses in question of the policy as a defense, because these provisions were waived by the defendant’s previous conduct in accepting premiums when the policy had lapsed, without requiring that these clauses of the policy be complied with.

Third, that the approval by the New Orleans office of the application for reinstatement and the retention of the insured’s deposit of $1.40 for eight days by the company should be construed as an affirmative acceptance of the money to cover the premiums due on the policy and that the company, through its officers, was guilty of laches, which estops it from denying the reinstatement of the policy.

Taking up these issues in the reverse order, we find that the record shows that the policy had lapsed for several months on account of the non-payment of premiums. The company had given its officers and agents the privilege of reviving policies which had lapsed upon the payment of four weekly premiums, if the insured was in good health at the time. Mr. Simpson, the agent who collected the premiums, requested Mr. Monvoisin, the assistant manager and inspector of the company, to accompany him to the home of the insured for the purpose of soliciting an application for the revival of the policy. The insured and his wife at first objected to considering the offer of reviving the policy, but finally, acting upon the advice of the company’s representatives, deposited $1.40 with them, for which the following receipt was issued:

“This deposit is made and this receipt issued subject to all the terms, of the policy and contingent upon all applicants being in sound health. If applicants are accepted and policies . issued or revived, as the case may be, and delivered to the insured, this deposit will be applied towards payment of premiums and/or arrears thereon.. .If application is rejected or revival refused, the said deposit will be returned.”

The two representatives, of the company testified that, after observing the deceased and believing him to be in sound health, they sought to have him apply for the revival of the policy; that no further medical examination was contemplated, or was necessary under the company’s express ' in- . structions; that it .was unnecessary to surrender the policy in order to have the approval of the company stamped upon it, the company having waived that require- . ment; that neither Mr. Simpson, nor Mr. Monvoisin, nor any other officer of the company had sent the application for reinstatement of the policy to his home office from the time the application was filed on June -2, 1930, until the date of -the .insured’s death, June 10, 1930; that the application had been accepted' and. -approved by the New Orleans - office, and that noth-' ing further was necessary to revive the policy, except the pro forma approval of the home office; that from the time they solicit-ed the application- for .the revival of the policy and the deposit of $1;40 from the insured,' no further communications were sent to either the insured or the beneficiary as to whether the home office had accepted or rejected the application ■ for . revival.

Now, since the defendant’s witnesses admit that the deposit was retained by the company and -the application remained in the New Orleans office for eight days, after its acceptance and approval by the representatives in New Orleans, and that the only thing lacking for the final consummation of reinstatement was the formal approval of the company, the narrow issue is whether or not eight days was a sufficient period of time within which to have forwarded the application to the home office and to have received its reply.

As the receipt does not specify within what period .of time the company would have accepted or rejected the application, the law implies that- such action on its part would be taken within a reasonable time. The.two representatives of the company testified that it was customary to hold- these applications until the end of the week and to forward all of them at one time and- that it required a period of eighteen or twenty .days in order to send these papers to the home office and receive its reply. - We are. not impressed with this- explanation and feel that the eight-day period was-more than' adequate within which to mail the application for reinstatement to Birmingham, Alabama, and receive the home office’s reply,' particularly since there was no. medical examination required and there was nothing further to be done except the ■ formal approval of the application by the home office. Under these circumstances we believe that the company was guilty of laches, which will be construed as an affirmative acceptance of the deposit to cover the premiums due on the policy and - the reinstatement of the policy by the company.

In view' of our conclusion on this issue it is unnecessary to consider the other points raised.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,863
    Orleans
    MATASSA v. CORTESE ET AL.
    (January 11, 1932. Opinion and Decree.)
    See, also, 15 La. App. 495, 132 So. 139.
    John R. Upton, of New Orleans, attorney for plaintiff, appellee.
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for defendants; appellants.
   JANVIER, J.

On' March 8, 1923, by notarial act, Vincent Matassa purchased from Mr. and Mrs. Joseph Tusa certain real estate in the city of New Orleans.

The act of sale contained a recital reading, “The purchaser herein binds and obligates himself to pay for the presently existing paving' and cancellation of the lien and privilege resulting therefrom.”

Attached to the said act of sale were the usual certificates from which it appears that there were not recorded against the property any liehs or privileges for past-due taxes or paving installments.

As, a matter of fact, however, though neither the, vendors nor -the purchaser knew of it, the paving installment for the year 1921 had never been paid and was past due.

This condition was not discovered until 1928, when Matassa received from the city of New Orleans a notice under which he was called upon to pay the said installment for 1921.

Matassa, according to the allegations -pf his petition,: th.ereuppn called upon his vendors, Mr. and Mrs. Tusa, to pay the saici; -,installment.

Th'ey deny that he called upon them to do so; but, at any rate,' whether they 'received Matassa’s notice or not, they did nothing, and shortly- thereafter Matassa paid the installment and brought suit to recover from his vendors the amount of the said payment.

In his petition, Matassa averred that if the above-quoted recital of the act of sale be interpreted as placing upon him the assumption of liability for paving installments which, at the time of the passing of the act of sale, had already matured, then the said recital was made in error, and did not represent the true intention of the parties, and, consequently, he prayed that the said act of sale be reformed so as to set forth the true agreement, and he prayed for judgment in accordance with the agreement or contract as so reformed.

He. also averred that if, the mistake was not mutual, and if the vendors knew that the. 1921 installment had not been paid, they should have so stated prior to the passing of the act of sale. •

An .exception of no cause of action was filed, • exceptors. contending in support of it that plaintiff was, attempting to vary, by parole, a written contract. The trial court having maintained this exception, an appeal was taken to this court, and we reversed' the judgment of dismissal "and remanded the matter because we were of the opinion that “the parole evidence rule is not applicable here. No attempt is made to vary or .contradict the terms of the act of sale but to reform a certain clause in order that it may properly represent the agreement of the parties. The plaintiff acquired the property mentioned in the petition in 1923, and it is alleged that he intended to assume the existing and subsequent paving obligations and no others, and that, by a mutual mistake or by deception of the vendors, the act as written obligates him to pay for previous installments. It seems to us that a proper showing is made for the exercise of the equity powers of the court.” See Matassa v. Cortese et al., 15 La. App. 495, 132 So. 139, 140.

The Supreme Court refused to grant the writ of certiorari requested by Mr. and Mrs. Tusa with the statement, “Judgment is correct.”

The matter was then tried below and evidence adduced for the purpose of showing what was the true agreement between the parties with reference to paving installments which had matured prior to the passing of the act of sale.

On -this point, Tusa, one of the defendants, he having represented both in the transaction, stated that he had told Matassa that everything due on the'property had been paid.

“Q. Didn’t you tell Mr. Matassa that everything was paid up to the date of the act of sale, that was due the City for paving?

“A. Yes, sir, I told him that.”

Surely then he, one of the vendors, did not intend -that Matassa should assume any overdue installments because, according to his testimony, there was no such overdue installment.

Matassa stated that Tusa toid him that this particular installment had been paid.

“Q. What did Mr. Tusa tell you about the paving on that property?

“A. He said he paid 1921 and 1922.”

The true intent of the parties thus seems to have been that Matassa was to assume only -those installments which had not, at that time, matured, and the contract should thus be reformed so as to express that intent.

Defendants, as an alternative defense, plead the prescription of three years. They assert that Matassa should have brought this action within three years of the date of the act of sale. Matassa answers this plea of prescription by showing that he had no knowledge of the fact that the installment was due until he received the notice in 1928, and that therefore he could not have acted sooner than he did.

Defendants counter with the charge that Matassa should have known that the installment was. unpaid and that he had, at least, constructive notice of it, because a search of the public records, if it had been made some time after the sale was consummated, would have so disclosed.

We are not told what record would have shown it, but it is conceded that, when the act of sale was passed, it did riot appear on any of the records accessible to Matassa, and we do not think that Matassa was at fault in failing to again search the records to ascertain whether his title was clear.

There is some dispute over the allegation made by plaintiff that before he paid the installment he called upon Mr. and Mrs. Tusa to do so. The latter admit that it was necessary to pay the installment in order to clear the title, and they do not charge that they could have defeated the claim of the city had they known of it, but, on the contrary, admit that they could have done nothing about it even had they known about it before Matassa paid it. Consequently, we deem it unnecessary to determine if Matassa called upon them as he says he did.

The trial judge having rendered judgment in favor of plaintiff as prayed for, the judgment appealed from is affirmed.


text:
    No. 13,882
    Orleans
    MAYER GODCHAUX CO., INC., v. REGAN
    (November 16, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)

      Pomes & McCabe, of. N.ew Orleans, attorneys for plaintiff, appellee.
    Frymire & Ramos, R. R. Hagen and C. L. Stiffen, of New Orleans, attorneys for defendant, appellant. ....
   HIGGINS, J.

This is a suit on a written contract to recover the sum of $641.02 for furnishing, installing, and servicing certain equipment in connection with the heating system in defendant’s premises. The contract and itemized statements are annexed to and made part of the petition. The defenses are:

(1) That the original boiler, which was furnished and installed by 'the plaintiff, exploded on account of incompetent .and inefficient services in examining the heating system, and incorrect and poor workmanship in repairing it, and therefore the plaintiff was legally bound to furnish another boiler and repair the damage without cost to defendant.

(2) In the alternative, that the new boiler furnished By the plaintiff is inadequate to heat the apartment, having only one-half of the heating capacity of the original one.

(3) Further in the alternative, that the installation of the new boiler and repairs to the heating system were so defective that repairs and replacements by other mechanics became necessary, and, hence, defendant is entitled to an allowance for these expenses.

(4) Finally in the alternative, that the plaintiff is not entitled to recover for the service charges, because these items were the .result of their own faulty workmanship originally.

There was judgment for the plaintiff as prayed for, and the defendant has appealed.

The record shows that the defendant is a femme sole and owned an apartment building consisting of ten apartments. On July 28, 1926, she entered into a written contract with the plaintiff, which is engaged in furnishing and installing heating equipment, for the installation of a complete automatically operated heating system. This system was installed in accordance with the plans and specifications prepared by M. A. Cooper, a practical engineer, who drew the plans and specifications for the defendant. In connection with the 'heating system, there was installed a Utica super smokeless boiler, size S-337, containing eight sections. Under the written contract, the plaintiff guaranteed the materials and workmanship for a period of one year. The heating system operated properly and without complaint until November, 1928, when the defendant requested the plaintiff to service and inspect the system, which was done at a cost of $28.30. Some time between December 10, and 15, 1928, the defendant complained to plaintiff that the system was not working properly, and it was again inspected and placed in working order. In the evening of December 19, 1928, a fuse, or soft plug, placed in the boiler for the purpose of preventing the cracking or exploding of the boiler, melted and caused the apparatus to cease functioning. On the morning of December 20, 1928, defendant notified the plaintiff, which sent its mechanic, who placed a new fuse plug in the boiler and pronounced it in good working order at 3:30 p. m. the same day. About 9:00 o’clock the same evening, the defendant and her brother noticed that the radiators were making noise, as if some one were hammering on them, and, upon telephoning plaintiff, they were requested to release the pet cock to get the air out of the pipes. The next morning, December 21, 1928, defendant arose early and turned on the thermostat, which caused the heating system to operate, and, after functioning all right for over an hour, at about 7 o’clock there was an explosion, which caused four of the eight sections of the boiler to crack. The plaintiff was again called in, and its mechanics commenced dismantling the boiler. On the same day, plaintiff submitted, in writing, an estimate of the cost of either replacing the cracked sections of the hoiler, or furnishing a new one, and the defendant, having decided on the installation of a new boiler, plaintiff’s workmen proceeded with the dismantling and taking out of the old boiler. On Saturday afternoon, December 22, 1928, about 3 o’clock, another written estimate was submitted to the defendant, which contained the following stipulation:

"If the above is acceptable to you, it is understood that payment is to he made on our regular basis, cash upon completion, and in this connection, we are released of all responsibility relative to the damage done to your former system.”

Defendant also signed this agreement. The work was completed, and the heating system placed in working, order again by Sunday afternoon, December 23, 1928. It appears that thereafter the defendant again called upon the plaintiff for services in connection with the heating apparatus, and also upon other mechanics for the relining of the fire box with bricks, and the repairing of certain electrical connections and the condensation pump. The defendant refused to pay the plaintiff the bills in question, claiming that the new work was necessary because of the negligence and carelessness of its employees in improperly repairing and inspecting the boiler and heating system prior to the explosion.

Taking up the defenses in the above order, we observe that the plaintiff offered evidence tending to prove that the original boiler and system were properly installed and functioned efficiently and effectively for two years, except for minor adjustments and repairs; that the inspection and repairs during November and December, 1928, were competently carried out, ' and that the heating system was in good order and giving satisfactory service, as no complaints were made.

The defendant then offered evidence tending to show that the mechanic who repaired the condensation pump had put a nail in the shaft connection, instead of a cotter pin, and that, on account of vibration, the nail became dislodged, causing the connection to be severed and the pump to stop; that, as a result of the condensation pump stopping, the water was not pumped back into the boiler, which caused it to become overheated and resulted in the fuse or soft plug blowing out, or melting, thereby causing the entire system to stop functioning; that, upon the furnishing and installing of a new fuse plug, the system was again pronounced in working order by the plaintiff’s mechanics, and that there was not any interference on the part of defendant, or any one in the apartment, with the operation of the heating system, until the explosion, when the janitor simply turned off the electric switch in order to prevent further damage.

The plaintiff then offered the testimony of its office manager and of its mechanic who installed the boiler, both of whom testified that the defendant, on December 21, 1928, stated to them that the sections of the boilers were cracked, because the negro janitor introduced cold water into the boiler, while it was overheated. The defendant and the janitor both deny the allegéd conversation, and also that any cold water was put into the boiler. The defendant’s version of the cause of the explosion is that the condensation pump did not function, resulting in the water being eliminated from the boiler, and thereby causing the explosion.

The experts of both the plaintiff and the defendant are in agreement that the fuse, or soft plug, is a safety device for the purpose of preventing a boiler from exploding, as the plug would melt and cause the fire to go out and the heating- system to stop functioning. They are also in agreement that the failure of the condensation pump to function would not cause the boiler to explode or crack, but would simply cause it to become overheated. The expert for the defendant stated that the introduction of either hot or cold water would cause the boiler to crack while in such a condition, and the experts for the plaintiff testified that only the placing of cold water in the boiler under the circumstances would cause it to crack or explode. It is therefore clear that the cause of the explosion could not have been the failure of the condensation pump to properly function, as this is agreed to by the experts on both sides.

It further appears to us that the preponderance of the evidence, on the issue of whether or not the janitor put cold water in the boiler by opening the valve, is with the plaintiff, because two witnesses for the plaintiff stated that the defendant assigned this as the reason for the explosion, and they are corroborated by the fact that the defendant signed two written agreements with the plaintiff to pay for the installation of the new boiler, and, in the second one, specifically released the plaintiff of- all responsibility for damages caused by the original boiler exploding.

The defendant urged that she signed both of the contracts under duress, because the plaintiff had the plans and specifications by which the heating system was installed in the apartment; that the weather was very cold at the time, being below 50 degrees Fahrenheit; that her tenants in the apartment were complaining of coldness and threatened to move, unless adequate heat was immediately furnished, and that the plaintiff was the only heating contractor in the city which could immediately make the necessary repairs.

We think it sufficient to dispose of this argument by saying that the experts for both parties litigant again were in agreement; that there were several other establishments in New Orleans in this line of business, which could have furnished the required services and equipment to restore the heating system to mechanical order. Furthermore, the defendant testified that, at the time she signed these -two agreements, the representative of the plaintiff told her that she could get some one else to do the work, if she so desired, and that no attempt was made by the plaintiff’s representative to force their services on her. We conclude that the first defense must fall.

As to the second defense, that the new boiler did not produce sufficient heat to make the apartment comfortable, we have the testimony of the president of the plaintiff company, who testified that the new boiler was furnished by the International Heater Company, which had been in business for 88 years, and that after the installation they had received no complaints from the defendant that the boiler was not producing sufficient heat. He ' is corroborated by two members of his office force, who testified that no complaints were received from the defendant on this score. Three engineers connected with the International Heater Company, which manufactured the new boiler, were qualified as experts of proper technical training and experience, and testified that the boiler was guaranteed. by the manufacturer to have radiation of 1,710 square feet, which guarantee was still effective in favor of both the plaintiff and the defendant, in the event that the boiler fails to produce that amount of heat. The testimony of two of these experts was taken by deposition, but the third was produced in court, and he stated that, at the request of the plaintiff, he had examined the premises in question and that the boiler was adequate to produce sufficient heat in the premises.

On this defense, the defendant offered the testimony of two experts, the first of whom said that, the calculation of two of the experts in the research department of the manufacturer of the boiler having been based upon engineering data, he would not take issue with them. The other expert stated that he was not a graduate, but a practical engineer, and that, in his opinion, the boiler in question was not sufficient to heat the apartments. However, he was questioned on cross-examination with reference to the accuracy of the engineering information and data given by the plaintiff’s experts, and only took issue with them by making the general statement that the boiler was inadequate to heat the premises. He admitted that the apartments for heating purposes required 1,321 square feet. Therefore, since the preponderance of the evidence shows that the boiler had a guaranteed capacity of 1,710 square feet of radiation, it would appear to us that the plaintiff has shown that it had the- capacity to properly heat the apartments, which required only 1,321 square feet of radiation.

We may say, in passing, that the defendant did not produce any tenants, who lived in the apartments to say that, after the installation of the new boiler, the apartments were cold, and even her own brother, who lives in one of the apartments, did not corroborate her in her statement that the apartments were untenantable because of the lack of heat. We conclude that the second defense is without merit. Hooper v. Dry Hand Mop Co., Inc., 1 La. App. 621; George v. Shreveport Cotton Oil Co., 114 La. 503, 38 So. 432; Pere v. Dalgarn, 3 La. App. 775; Max Barnett Furniture Co. v. Guy, 3 La. App. 239; McCarroll Lumber Co. v. Patenotte, 162 La. 99, 110 So. 102; 35 Cyc., page 436, verbo “Sales.”

With reference to the defendant’s claim that she should be allowed to deduct the amount that she spent for repairs on account of the alleged defective workmanship and máterial furnished in connection with the installation of the new boiler, we note that she has failed to plead set-off or to make any claim in reconvention, being content to reserve her right to claim any damages she might have suffered as a result of defective parts and the carelessness of the plaintiff’s workmen in installing the new boiler. We do hot believe it is necessary for us to pass upon the merit of this claim, because, even if we reached the conclusion that it was meritorious, we would be unable to grant her the relief sought, because the proper pleadings, are lacking; but, since she has reserved the right to sue for damages, we believe it only fair to grant that request.

Passing to the final contention of the .defendant, to the effect that the evidence shows that plaintiff is not entitled to recover for certain service charges claimed in its petition, because these services were made necessary by defective parts and poor workmanship, it appears that the mechanic who installed and serviced the condensation pump admitted that he put a nail in the connection between the shaft and the pump, instead of a cotter pin. The defendant, her brother, and the janitor, all testified that the pump ceased operation on several occasions due to the fact that this nail worked out of its position, causing the connection to be severed and the pump to cease operation, which, in turn, caused the heating system to become out of order. While the mechanic states that the nail was stronger than a cotter pin, we do not believe that it is a question of tensile strength as between a cotter pin and a nail, but an issue of whether a cotter pin would be more effective in maintaining a stationary position on machinery where there is vibration. One of the experts testified that he considered it improper workmanship to put a nail in such a connection instead of a cotter pin, which is especially designed to be bent, or turned at the ends, in order to prevent it from becoming dislodged. It would appear to us that it was carelessness on the part of the mechanic to put a nail in this connection, not only originally, hut on the several occasions that he serviced the pump. The nail was permitted to remain there until the time the new boiler was installed, when the mechanic properly repaired the connection by placing a steel rivet in it. Therefore, any charges made for services resulting from the connection becoming severed, as a result of the nail falling out of position, should be borne by the plaintiff, as it resulted from the furnishing of an improper part and poor workmanship, which amounted to carelessness on plaintiff’s part. These items amount to $23.96, and therefore are disallowed.

For the reasons assigned, the judgment appealed from is amended by reducing the amount thereof from the sum of $641.02 to the sum of $617.06, and reserving defendant’s right to sue for the alleged amounts which she claims to have spent on account of defective parts and workmanship. As thus amended, the judgment is affirmed; costs of this appeal to be borne by appellee.


author: PER CURIAM.

text:
    No. 14,034
    Orleans
    HEYMANN (doing business under the name of Home Finance Service) v. MASCHECK
    (January 11, 1932. Opinion and Decree.)
    Jos. A. Casey, of New Orleans, attorney for plaintiff, appellee.
    John D. Nix, of New Orleans, attorney for defendant, appellant.
   PER CURIAM.

This matter is before us on motion to dismiss the appeal. Judgment in the court below was rendered in favor of plaintiff. Defendant obtained an order for a suspensive and devolutive appeal upon furnishing bond as required by law. He thereupon furnished bond in the sum of $200.

On a rule filed in the court below judgment was rendered dismissing the appeal apparently on the ground that the surety was insufficient. No new appeal bond was furnished in accordance with Act 112 of 1916.

It is therefore ordered, adjudged, and decreed that the motion to dismiss the appeal be and it is sustained and accordingly the appeal is dismissed.


text:
    No. 14,036.
    Orleans
    ALEXANDER v. CAMPBELL
    (January 11, 1932. Opinion and Decree.)
    W. W. Wright, of New Orleans, attorney for plaintiff, appellant.
    Prowell, McBride & Ray and W. P. Mouton, of New Orleans, attorneys for defendant, appellee.
   PER CURIAM.

This matter is before us on motion to dismiss the appeal.

Judgment having been rendered in the court below in favor of defendant, plaintiff obtained an order for a suspensive appeal uppn the furnishing of bond in the sum of $25. Thereafter a document purporting to be a bond was filed. The said document was not signed by a surety and on motion, made in the court below, a judgment was rendered after hearing, in which judgment it was ordered, adjudged, and decreed “that the appeal bond * * * be and the same is hereby dismissed.”

The proceedings as a result of which the trial court set aside the order of appeal, which had been theretofore granted, appear to have been taken in strict conformity with the provisions of Act 112 of 1916. When the document purporting to be a bond was discovered to be defective appellant was given proper opportunity to furnish a correct and sufficient bond but did not do so.

It is therefore ordered, adjudged, and decreed that the motion to dismiss this appeal be sustained and accordingly the appeal is dismissed.


author: TALIAFERRO, J.

text:
    No. 3965
    Second Circuit (Second Division)
    D. T. & A. T. LEE v. FIRST NATL. BANK OF MINDEN
    (January 14, 1932. Opinion and Decree.)
    John T. Campbell, of Minden, attorney for plaintiff, appellee.
    A. S. Drew, of Minden, attorney for defendant, appellant.
   TALIAFERRO, J.

D. T. & A. T. Lee, alleging itself to be a commercial co-partnership, composed of Dawson T. Lee and Allen T. Lee, residents of Webster parish, La., instituted this suit against defendant, First National Bank of Minden, La., to recover $394.91, which was to the credit of the checking account of D. T. Lee on December 18, 1929, and which was on that date, it is alleged, illegally, and without authority of said partnership or of either of its members, applied by said bank as a credit on a note of another person held by it, on which said D. T. Lee was an indorser, thereby balancing and closing said checking account.

It is further alleged that while said checking account was in the name of D. T. Lee, yet it' was in reality the account of said partnership and the deposits credited thereon were derived from its mercantile business and belonged to it. It is also alleged that demand had been made on defendant to restore to said account the amount charged out, herein sued for, but this was. declined.

Defendant filed an exception of no cause of action which was overruled. It is not urged in this court.

In its answer, defendant denies the existence of the alleged partnership between the two Lees and denies notice or knowledge that the account on its books in name of D. T. Lee belonged to said partnership, if it did exist. Defendant admits, charging out the balance to the credit of the D. T. Lee checking account on December 18, 1929, and crediting same on a note ol one of its customers whereon D. T. Lee was indorser and bound in solido, but avers that it had the legal right to do so as said note was long past due; that if said account belonged to plaintiff partnership, which is denied, it is- estopped to claim ownership thereof as against defendant.

The lower court gave judgment for plaintiff. Defendant has appealed.

In oral argument, counsel for defendant conceded that defendant was without legal right, in the absence of express authority from D. T. Lee, to charge the account in his name with balance thereon, and credit same on a note on which he was indorser. It is also conceded that no such authority was given defendant. In the absence of express definite mandate to that effect, a bank is without power to arbitrarily compensate, as against a note held by it, the amount due a depositor (maker or indorser of said note) on checking account. This principle has been repeatedly announced by the courts. Hancock v. Citizens’ Bank, 32 La. Ann. 590; Succession of Gragard v. Metropolitan Bank, 106 La. 298, 30 So. 885; Merchants’ & Farmers’ Bank & Trust Co. v. Hammond Motors Co., 164 La. 57, 113 So. 763; Thomas v. Marine Bank & Trust Co., 156 La. 941, 101 So. 315.

Two questions remain for decision: Was there a partnership between, and composed of, the two Lees; and, if so, did the account carried in name of D. T. Lee with defendant bank belong to, and was it in fact the account of, the alleged co-partnership, and recoverable by it?

The evidence leaves little or no doubt in our minds that there was a commercial co-partnership between the -two Lees, which had existed for over three years. They erected a store building and carried a stock of groceries therein, together with gasoline and car parts, and retailed these' commodities to the purchasing public. They were equal owners in the business and adopted the -trade-name and firm style “D. T. & A. T. Lee.” Article 2825, Civ. Code. It is quite certain creditors of this firm would have experienced no difficulty in holding the individual members responsible as. commercial partners. They held themselves out to the. world as a partnership, and therefore could not be heard to gainsay that a partnership between them existed.

It appears that these two brothers had been closely associated since youth, and that they regarded each other with a fondness and attachment rarely exhibited by brothers. What belonged to one belonged to both. They worked together and pooled the fruit of their joint industry. However, their relation as commercial partners did not arise until they engaged in the mercantile business some three or four years before this suit was filed.

It also appears that A. T. Lee carried an account with defendant until April, 1925; from which time it was practically closed; there remaining only a few cents balance to his credit. This was before the formation of the partnership by the Lees. It also appears that D. T. Lee opened an account with defendant in October, 1917, which continued until .December, 1929. After the partnership came into existence, any funds acquired by either of the Lees, individually, and by the co-partnership, were invariably deposited to the credit of the D. T. Lee account. This account was subject to the check of both Lees and of the partnership. However, it does not appear that A. T. Lee checked against it individually, but all of.-the checks issued by the partnership were drawn by him. The record contains a multitude of canceled checks drawn and signed, viz., “D. T. & A. T. Lee by A. T. Lee,” which were honored by defendant and charged against the D. T. Lee account. This course of business extended back for a considerable length of time; possibly over the entire period of the partnership’s existence.

Mr. Wylie, defendant’s cashier, testified in the case, but no other officer or employee of the bank did so. He' stated that he had no knowledge of the existence of a partnership between the Lees, but admitted he had been to their store and saw them both working in it; that they used a rubber stamp in signing the firm name on checks, drawing and indorsing; that A. T. Lee made most of the deposits to the credit of the D. T. Lee account, the last two of which were made in December, 1929, and amounted to $412.41. A deposit of $307.84 was made- to the credit of this account on December 14, 1929, the deposit slip containing these words: “List...... $307.84.” A deposit of $104.57 made December 17, 1929, reads the same way. The word “list” on these slips refers to a number of checks making up the total of each deposit, as no eurrency, gold, or silver entered into the aggregates. These deposits were made by A. T. Lee.

The Lees testified that they had requested the bank officers or employees to change the D. T. Lee account to the partnership name, but this had not been done. Mr. Wylie denies having been requested to do this. Both the Lees testified that the deposits made on the account consisted of partnership funds, and the evidence as a whole convinces us that this is true. The fact that -these brothers were generally known to be closely associated in business for many years, and had erected a store building, bought and sold groceries, gasoline, car parts, etc., in and about this building, that they both worked therein and used a firm name on their checks and otherwise, should have been convincing evidence to those with whom they dealt that the partnership did exist, and should have convinced the bank that the funds deposited with it in the D. T. Lee account were partnership funds.

In a letter dated December 21, 1929, signed by D. T. Lee and addressed to the defendant, demand is made that the amount charged out of the D. T. Lee account be reinstated to that account. In this letter, the account is referred to as belonging to the writer of the letter. Counsel of defendant argues that this is proof that this account belonged to D. T. Lee and that the partnership, if any existed, had no interest in it and cannot now be heard to assert title to it. Under the circumstances existing at the -time, we can readily understand why this letter was couched in the language contained in it. But, if this account was in reality the account of the partnership, and defendant should have known -that it was, the partnership, as a legal entity, was not estopped to assert ownership of it, regardless of any commitment made by either partner indicative of the contrary.

After defendant had closed the D. T. Lee account by charging out the balance therein, as herein mentioned, it filed suit against D. T. Lee and others on the note indorsed by him, and which had been credited with the $394.91 herein involved. Judgment was rendered in that suit on January 24, 1930, while the present suit was filed January 7th, prior. It can readily be seen that if defendant should succeed in the case at bar the entire amount charged out of the Lee account will continue as a credit on the obligation he indorsed; but if this account is decreed to belong to the partnership, only one-half of the amount may be so applied.

There is abundant authority sustaining the doctrine that cash money, or its representatives, belonging to one person, does not entirely lose its character by being deposited in bank to the credit of another; and the equitable owner may invoke the court’s aid to have himself decreed the legal owner of the deposit and have it restored to him. Especially is this true where such a transaction is not tainted with fraudulent motives or purposes, and is in good faith, and where no one has been Induced thereby to part with anything of value, or act to his detriment on that account.

In Union Stock Yards Nat. Bank v. Gillespie, 137 U. S. 411, 11 S. Ct. 118, 34 L. Ed. 724, it was held:

“Where the title to moneys deposited in a bank is .equitable rather than legal, the owner of the equitable title may maintain a suit in equity against the bank to enforce his equitable right to the moneys; his remedy is not one at law.”

And in Central National Bank v. Royal Insurance Co., 103 U. S. 783, 26 L. Ed. 459, it was held that if the money deposited belonged to a third person, and was held by the depositor in a fiduciary capacity, its character is not changed by being placed to his credit in his bank account.

Since this appeal was lodged, A. T. Lee died. His widow, Mrs. Edith Shaw Lee, individually and in her capacity as natural tutrix of her minor children, issue of her marriage to the deceased, was made a party to the suit by motion filed. The interest of the deceased in the judgment appealed from devolved upon his widow and heirs at his death.

It it. therefore, for the reasons herein assigned, ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs.

DREW, J., recused.


author: McGREGOR, J.

text:
    No. 4106
    Second Circuit
    ODOM v. THE PEOPLE’S GIN CO., INC., ET AL.
    (January 14, 1932. Opinion and Decree.)

      J. W. Elder, of Ruston, attorney for plaintiff, appellee.
    Harvey G. Fields, of Farmerville, attorney for defendant, appellant.
   McGREGOR, J.

This is a case involving the liability of a warehouseman for the loss of cotton by fire. There was. judgment in the lower court in favor of the plaintiff, and the defendant has appealed devolutively. The court found from the evidence that the defendant was guilty of negligence in not providing sufficient safeguards and protection for the cotton stored with him. This is purely a question of fact. Counsel for appellant has not appeared before us, nor has he favored us with a brief supporting the appeal. Under the circumstances and in accordance with our custom, we are justified in presuming that the appeal has been abandoned. Furthermore, after a careful reading of the record in the case, we find no manifest error in. the judgment appealed from and it is, therefore, affirmed, with all costs. i I


text:
    No. 4172
    Second Circuit (Second Division)
    PELICAN WELL, TOOL & SUPPLY CO. v. SABINE STATE BANK & TRUST CO.
    (December 9, 1931. Opinion and Decree.)

      Charles B.. Emery, of Shreveport,. attorney for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendant, appellee.
   CULPEPPER, J.

In this action plaintiff seeks to have restored to its deposit, account with defendant bank the sum of $155, being the aggregate of two checks which plaintiff alleges were drawn against said account without authority by a sales manager of plaintiff’s branch store at Zwolle, Sabine parish, and honored by defendant without authority from plaintiff. From a judgment rejecting plaintiff’s demands, it has appealed.

The, plaintiff corporation, domiciled in the city of Shreveport, Caddo parish, engaged in sale of oil well supplies, opened a branch store in Zwolle, Sabine parish, some time in March, 1930. Its secretary-treasurer, T. D. Sedbury, together with one J. E. Webb, whom plaintiff had employed as sales manager of the branch store, went to the defendant bank in Zwolle, and opened up an account for the deposit of funds derived from its business. Sedbury testified that on that occasion he made arrangements with the bank to accept checks for deposit as a convenience to his business, but left no authority with the bank to any one to withdraw the funds; that he gave no authority to Webb, his sales manager, to withdraw any of the funds, but did authorize him to, receive checks in the conduct of the business, and to indorse same for deposit to plaintiff’s account at the bank. He testified that he did not inform the bank or instruct it as to who would or would not have authority, to withdraw the funds; that no mention was made to the bank regarding withdrawals of funds. The testimony does not show who the person in charge of the bank was at the time the account was opened, nor with what bank official Mr. Sedbury made his arrangements. He merely say's he made the arrangements “with the bank.” It is shown by the testimony that the official in charge of the bank at the time was not the one who was in charge at the .time of the trial, and who testified for the bank. Whoever the official . was in charge when the account was opened did not appear to testify, and his name was not disclosed.

The account as carried on the defendant bank’s ledger was “Pellican Well Tool Company, by J. E. Webb,” and the monthly statements mailed out to plaintiff were headed, “Pellican Well & Tool Supply Co., J. E. Webb, Mgr.”

On July 9, 1930, J. E. Webb drew a check upon defendant bank payable to cash for $50 signed it, “Pellican Well & Tool S. Co., J. E. Webb,” presented same to the bank for payment, and received the cash on it. On the following day, July 10th, he drew another check, similarly signed, for $105, presented it to the bank, and received the cash. The bank charged these two amounts to the account of plaintiff. Webb evidently appropriated this money to his own use, as no part of same was used for the benefit of plaintiff’s business. Webb was discharged by plaintiff on July 15th following, and left and went to Texas, where he was still supposed to be residing at the time of the trial.

On July 15th, following the honoring of the two checks, defendant bank prepared and mailed to plaintiff a statement covering the period from July 1st to the 15th, inclosing the two canceled checks. No other or additional withdrawals of the funds are shown on the statement.

Mr. Sedbury testified that these two checks were the only withdrawals Webb had ever made from plaintiff’s funds in the bank. Mr. Horace Thompkins, manager in charge of defendant bank since May 15, 1930, testifying from defendant’s ledger sheet filed in evidence showing plaintiff’s account from its inception, stated that three debit items, one on June 20, 1930, for $75, and the other two representing the two checks in question, were withdrawals by Webb.

Both Sedbury and Thompkins, however, upon cross-examination, testified that they could be mistaken, and were not sure whether this $75 was withdrawn by Webb or not. Mr. Thompkins testified that Webb on many occasions indorsed the Pelican Well, Tool & Supply Company’s name, per J. E. Webb,, on checks and got cash on them, but could not remember or say that they were checks drawn against plaintiff’s account, as they might have been checks given by customers on other banks and payable to plaintiff. Mr. Thompkins also testified that Webb held himself out as manager, and was in fact, so witness understood, the manager of plaintiff’s branch store at Zwolle. Thompkins admits that the bank had no written or other special authority to cash checks issued by Webb against the account of plaintiff.

The pertinent facts, as shown by the testimony are, that plaintiff’s account was opened with defendant bank primarily as a depositary of plaintiff’s receipts of moneys and checks from its branch business at Zwolle. No written authority or special instructions of any kind were given to the bank as to who would check out or withdraw any of the funds. When the deposits reached as much as $1,000, Sedbury says he would withdraw same himself. The business carried on by plaintiff at this place was not one that required paying out by the manager of the funds, except to a very limited extent. The paying of the clerk’s hire, rents, taxes, etc., was doubtless done by. plaintiff from its main office in Shreveport. Plaintiff’s testimony, therefore, that Webb was given authority to indorse checks for deposit only, is not inconsistent with what would naturally be expected under the circumstances.

We cannot conceive of a bank’s accepting and opening up an account, and receiving deposits, and not providing itself with some written or other special authority from the depositor as to who, if any one, should withdraw the funds other than- the depositor himself. Yet that is what was done in this case. Because Webb came and deposited plaintiff’s funds in the defendant bank and indorsed his employer’s name upon checks taken in trade in order to clear them through the bank did not signify that he had authority from his superior to' check out or withdraw the funds, even though he was the • manager of the business. Webb must have had express and special authority from his employer, and. such communicated to the bank with instructions to be governed thereby. Civ. Code, arts. 2996, 2997.

The burden was upon defendant to show such authority in Webb and that defendant had been authorized and instructed to act upon it. McCarty v. Straus & Baer, 21 La. Ann. 592; Spies v. Caruso, 1 La. App. 544; Barriere & Co. v. Fortier, 23 La. Ann. 274.

Webb, was nothing more than plaintiff’s employee, and plaintiff cannot be bound by the issuance of checks and withdrawals of its funds from defendant bank by its employee without express authority, either written or unequivocally given by plaintiff. Lafourche Transportation Co. v. Pugh, 52 La. Ann. 1517, 27 So. 958.

Defendant bank could not infer that Webb had the authority to withdraw the funds of plaintiff just because he made the deposits for plaintiff. Morse on Banks & Banking, sec. 433.

The fact that defendant was dealing with plaintiff’s agent was sufficient to put defendant on its guard and convey to it knowledge that some definite and express understanding should be had with plaintiff for Webb to withdraw these funds. Chaffe v. Stubbs, 37 La. Ann. 656; 2 C. J., Agency, secs. 204, 210.

Immediately upon receipt by plaintiff of a statement from defendant with the canceled checks, plaintiff wrote defendant repudiating the acts of Webb and demanding reinstatements of the amounts withdrawn to plaintiff’s account. Plaintiff, we think, was not estopped from claiming restitution. It is not shown that any previous withdrawals had been made by Webb of any of these funds. An attempt was made to show a previous withdrawal of $75, but failed. Even if such had been the case, we seriously doubt that it would estop plaintiff from now claiming restitution of the withdrawals here involved, especially since it has been shown that Webb never had any authority to make withdrawals. Graham v. Southington Bank & Trust Co., 99 Conn. 494, 121 A. 812; 2 C. J., 1129, par. 131; National Dredging Co. v. Farmer’s Bank, 6 Pennewill (Del.) 580, 69 A. 607, 16 L. R. A. (N. S.) 593, 130 Am. St. Rep. 158.

The relationship of a bank and a depositor is that of debtor and creditor, when the deposit is money or things consumable. Civ. Code, art. 2941. The bank has the right to use the deposit, and, in consideration thereof, covenants to pay it out only as directed by the depositor. It imposes the duty upon the depositor to deal with the bank direct and truthful. The violation of this duty in creating a state of things which ' would not have existed but for his indiscretion will alone defeat him. Smith v. Mechanics’ & Traders’ Bank, 6 La. Ann. 610. We fail to see wherein plaintiff has violated any duty it owed to defendant. If plaintiff had in mind keeping its funds on deposit until some future time when it should withdraw them itself, we see no reason why it should have to so advise defendant and instruct defendant not to permit J. E. Webb, or any one else, to withdraw them. It was defendant’s duty to hold these funds until such time as plaintiff should authorize defendant to permit Webb to withdraw same, regardless of whether Webb was the manager of plaintiff’s business or was a total stranger:

In Vanbibber & Co. v. Bank of Louisiana, 14 La. Ann. 481, 74 Am. Dec. 442, plaintiff’s collector received a check on a collection from a debtor of plaintiff’s, forged plaintiff’s indorsement thereon, and cashed it. at defendant bank. Plaintiff sued to recover the amount. The court, in discussing the rights of a depositor, said:

“A depositor in a bank has the right to suppose that the bank will only pay out his money upon his own signature or that of his agent, and upon the conditions specified in the check.’’

Likewise:

“The party receiving a check drawn by a depositor is actuated by this confidence and belief, and takes a check with the understanding that it shall be paid only to his- order, or as specified in the check.’’

As in the above case, no negligence was shown on the part of plaintiff, but -that the defendant bank was held to havé been negligent, and so it is in the present case. The court there cites article 2966 of the Code (now article 2997) to the point that the power to indorse bills of exchange on promissory notes must be express and special. In that case defendant contended that a check is not a bill of exchange. The court said:

“It is true that bills of exchange differ, in many important particulars, from checks; yet, even without this Article, the collector would not have been empowered to have endorsed the check for plaintiffs, without showing that it was within the scope of his agency as collector; otherwise, no one would be safe from ruin.’’

We think the same reasoning applies to the present case. To allow a manager or some other employee of the many mercantile and other business establishments in the country to withdraw its funds from the bank in which they are deposited, merely because such person might be the manager and -the person who made the deposits, could, we think, easily result in serious loss to such a business.

A bank’s interest and concern regarding withdrawals of deposits made in the name of a corporation or a partnership is not so much as to who does not have authority as it is to who does have authority to issue checks agains-t the account. In other words, the authority and right to sign checks for another must have been affirmatively proven to the bank before it would be justified in honoring such checks.

For the foregoing reasons, the judgment of the lower court is reversed and set aside, and it is now decreed that -there be judgment in favor of the plaintiff, Pelican Well, Tool & Supply Company, Inc., and against the defendant, Sabine State Bank & Trust Company, in the sum of $155, as prayed for, with legal interest thereon from July 10, 1930, until paid; defendant to pay all costs.


author: MOUTON, J. PER CURIAM.

text:
    Nos. 775, 874
    First Circuit
    ITEM CO., LTD., v. POLAZZO ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Granted.)
    (December 8, 1931. Opinion and Decree on Rehearing.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Borron, Hebert & Owen, of Plaquemine, and Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    Dupont & Dupont, of Plaquemine, attorneys for defendants, appellees.
   MOUTON, J.

This, suit is brought for $249.68, balance on account on a written contract, in solido, against Carlo Polazzo, principal, and Mrs. Parguilla Cerami and Peter Panepinto, as sureties thereon.

Judgment was rendered in favor of plaintiff company against Polazzo, the principal, and in favor of Mrs. Cerami and Pane-pinto, rejecting the demand against them.

Plaintiff company appeals, and is the only appellant.

This opinion will therefore be restricted to the issues, in reference to the controverted questions between plaintiff and the two sureties.

Plaintiff company, through C. Hayler, its representative, entered into a written contract with Carlo Polazzo to furnish him, at certain specified prices, copies of the New Orleans Item, Morning Tribune, and Sunday Item-Tribune during a period of not less than three months.

This contract was signed, as bondsmen, by Mrs. Cerami and Panepinto.

The clause of the contract pertinent to the issue presented for decision reads as follows:

“You may furnish (referring to plaintiff company) to Carlo Polazzo of Plaquemine, La., ‘Party of the Second part’ such copies of the New Orleans Item, The Morning Tribune and the Sunday Item-Tribune as he may order, and we, the undersigned guarantee the payment to you of his bills at their several maturities, all bills being due and exigible on the semi of each monthly following in which the indebtedness shall have been incurred by the said party of the second part, and, in the event of the failure on the part of the party of the second part to meet his bills promptly, we promise, severally and collectively to pay you on demand, the full amount due not to exceed Three Hundred Dollars ($300.00).”

The contention of the two sureties is that they obligated themselves under the foregoing terms of the contract to pay the orders of Carlo Polazzo, their principal, semimonthly if credit was extended to him on a semi-monthly basis; that plaintiff company, in violation of this stipulation in the agreement, sold the papers to Polazzo on terms of monthly credits instead of on a semi-monthly basis.

The court in its opinion said that the ambiguous words “on the semi of each monthly,’’ used in the agreement, were intended to mean, as he understood them, semi-monthly, but nevertheless admitted the introduction of parol evidence to show what was. the intent or meaning of the parties to the contract, over the objection of counsel for plaintiff company urged on the ground that there were no allegations of error, fraud, or ambiguity in the answer of defendants.

Under the provisions of article 2276, C. C., no parol evidence is permitted against or beyond what is contained in the written acts of the parties thereto. This is elementary, and the courts have invariably excluded such evidence to alter, vary, or contradict contracts in writing, without allegations, of fraiid or error. Counsel for defendants contend that the same rule applies where an ambiguity in a written agreement is sought to be cleared up by verbal proof.

In support of that contention counsel refer us to the case of Bank of Napoleonville v. Knobloch & Rainold, 144 La. 100, 80 So. 214, 216, where the court said the intentions of the parties could not be sought outside the four corners of the written instrument. The court said,, however, that when the terms, of the agreement are so ambiguous that they are not susceptible of intelligent construction, parol evidence may be admitted to make clear what is obscure and this is followed by the following significant remark, quoting:

“But it is certainly in direct contravention of article 2276, Civ. Code, to admit parol, not to explain, but to add to and contradict, a written agreement.”

The court in its ruling in that case draws a marked distinction between parol proof offered, for the purpose of explaining a written agreement by that kind of evidence, and when introduced not to explain but to add to or to contradict its terms. This ruling is in perfect harmony with article, C. C. art. 2276, which excludes evidence of that character when admitted against or beyond what is contained in the acts.

In the final ruling of the court in the case above cited, in referring to the evidence therein introduced for the purpose of adding to or contradicting the written agreement, it is stated that it should have been excluded, which clearly indicates that there were no averments of fraud or error in the pleadings, as otherwise it is obvious the admission of the evidence below would have been approved. The opinion also shows, according to the reasoning of the court, that if the parol evidence had been introduced solely for the purpose of “explaining” the contract or to make clear “that which was obscure,” the court would not have said that it should have been excluded. Hence, from our analysis of that opinion, we find that a latent ambiguity in a written instrument may be explained by parol without the necessity of pleading fraud, error or ambiguity .to support such evidence.

In the ease of Destrehan v. Lumber Co., 45 La. Ann. 921, 13 So. 230, 232, 40 Am. St. Rep. 265, the court, quoting from Best on Evidence, p. 231, says:

“That the written instrument fairly and fully represents the intent of the parties at the time of its execution, the duty of the court becomes merely one of interpretation and construction of the language employed. * * * That meaning, once ascertained, is incontrovertible by any parol evidence. No new words can be added. The court cannot, as is said, travel out , of the four corners of the paper. But the language to be interpreted is to be read in the light of all surrounding circumstances (as the phrase is), it being obviously impossible to tell what a man has said until it is ascertained what he has meant to say. Any relevant evidence, therefore, which fairly partakes of explanation, or is reasonably calculated to place the court in the situation of the parties at the time of the execution, will, in general, be received.”

When the language of the instrument is clear, the meaning of the contracting parties, it is well settled, must be sought within its four corners. Where there is a latent ambiguity and the intent of the parties is shrouded in obscurity, parol is admissible to make “clear what is obscure,” and to explain the intent of the parties at the time of the execution of the instrument. The purpose of such testimony is evidently not to alter, vary, add to, or contradict the contract, but simply to ascertain the intent of the parties, and to carry out its provisions according to their understanding at the time of its execution. Such has been the ruling of our courts on •this subject. Adeline Sugar Factory Co. v. Evangeline Oil Co., 121 La. 961, 46 So. 935; Mixon et al. v. St. Paul Fire & Marine Insurance Co., 147 La. 302, 84 So. 790; Tremont Lumber Co. v. Peavy, 162 La. 35, 110 So. 79.

In affirming this rule of evidence in Bagley v. Rose Hill Sugar Co., 111 La. 249, 35 So. 539, the court refers to the case of Bayley, Testamentary Executor, v. David Denny, 26 La. Ann. 255. That case directs us to Greenleaf on Evidence, chapter 15, par. 286. That author, in his usual lucid style, has the following to say on the subject:

“The duty of the Court in such cases is to ascertain not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of words they have used. It is merely a duty of interpretation, that is, to find out the true sense of the written words, as the parties used them; and of construction, that is, when the true sense is ascertained, to subject the instrument, in its operation, to the established rules of law.”

Now, proceeding .to exercise the true functions of the court, we shall, from the parol evidence introduced to explain the latent ambiguity in the written agreement in question, endeavor to ascertain the 'true sense of the written words, as the parties used them, and according to our finding, “subject the instrument in its operation, to the established rules of law.”

The district judge seems, from his written opinion, to have inclined to the conclusion that the payments required of Polazzo under the terms of the clause of the agreement, above referred to, were to be made semi-monthly or every fifteen days. We think that the meaning of the parties, as expressed therein, is rather uncertain or indefinite and that the resort to parol evidence to elucidate the ambiguity lurking therein will afford a better solution of the issue presented.

Polazzo, the principal, Mrs. Cerami and Panepinto, sureties, .testified on this subject, and also Marquette, circulating bookkeeper for plaintiff company.

Polazzo is certain that when the contract was executed it was understood that he was to make his payments, every fifteen days.

Mrs. Cerami testifies that when she signed the contract it was understood that fifteen days were to be the terms of credit given to Polazzo.

Panepinto says that the terms of payment for the papers were fixed for every two weeks.

Marquette, circulating bookkeeper, testifying for plaintiff company, explains that the sale of the papers to their dealers were on different terms of credit; some on a basis of thirty days, and others on a weekly, semi-monthly, or fifteen-day basis.

The preponderance of the evidence, we find, establishes the fact that the stipulations. of the contract provided for sales on fifteen-day terms of credit, and that the guarantee by the sureties was to secure prompt payments by the principal at the time designated.

The testimony of Polazzo is that the papers were sold him on the term of fifteen days’ credit. The account annexed to the petition, and the allegations in reference thereto, support the foregoing statement. Independently of these allegations and annexed account, the evidence, however, is sufficient to sustain that conclusion.

The court below found that the sending of the accounts every thirty days was . not a manifestation of a mere indulgence or forbearance on the part of plaintiff in the collection of its credits. The court correctly concluded that Polazzo was dealt with in such a way as “to completely change the maturities of his obligations as originally set out in the written contract to which the guarantors were parties.”

The case which was conducted on the foregoing lines shows that there was a prolongation of the terms granted to the principal debtor without the consent of the sureties, which operated a discharge of the latter. C. C. art. 3063.

ON REHEARING

PER CURIAM.

We granted a rehearing in this case, restricted to the question of extension of term of payment on the obligation, which would release the sureties, under the authorities referred to in the application therefor. After considering the case again, we desire to correct an oversight, and, at the same time, to explain and modify the last paragraph in our opinion; but in other respects our former opinion is to remain unchanged.

We now say, however, that there was no consideration received for an extension of the terms of the maturities of the obligation sued on from a semi-monthly to a monthly period of payment; that the plaintiff, the Item Company, sold and delivered the papers to Carlo Polazzo as dealer on monthly terms of credit instead of semimonthly terms of maturities, as stipulated in the obligation on which it is seeking to hold Mrs. Pasqualle Cerami and Peter Panepinto liable as sureties. The matter which we wish to correct is that our opinion, through oversight, says that Carlo Polazzo testified that the papers were sold to him on the term of 15 days’ credit. We should have said that he testified that the papers were sold to him on terms of 30 days’ credit. His testimony is that plaintiff sold him papers by the month, and sent him bills monthly on said account.

T. J. Marquette, plaintiff’s bookkeeper, testifies that plaintiff sent bills to Polazzo once a month, and that the papers were sold to him on 30 days’ credit. We quote plaintiff’s bookkeeper as follows:

“Q. But in the case of Mr. Polazzo, the Item Company dealt with him on an extension of 30 days’ credit?
“A. Yes, sir.”

The account sued on, annexed to and made part of plaintiff’s petition, shows daily sales for monthly periods of time, and indicates monthly periods of payment. The sureties, Mrs. Cerami and Mr. Pane-pinto, bound themselves on an obligation which stipulates for semi-monthly payments, and are sought to be held liable as sureties on a dealing based on monthly payments, to which they are not parties and did not consent.

The argument used and authorities cited in plaintiff’s brief are applicable to a case coming under the provisions of the Civil Code, art. 3063, hut the prolongation referred to has reference to the obligation for which the sureties bound themselves, not to a situation like the present in which the sureties are sought to be held on a contract to which they did not consent and are not parties. The situation, disclosed by the record is like that which existed in White Castle Lumber & Shingle Co. v. Le Blanc, 114 La. 425, 38 So. 407, in which the court said:

‘‘The signers of the document bound themselves with reference to one contract, and they are sought to be held upon another.”

It is upon this ground that we predicate our opinion and decree. Subject to the change and modification made, and as above stated, our former opinion and decree herein is deemed correct, and the same is now reinstated and made the final judgment of this court.