author: WESTERFIELD, J. JONES, J. CLAIBORNE, J.

text:
    No. 9961
    Orleans
    TAFT MERCANTILE CO. v. BLOUIN CO., LTD.
    (April 27, 1925. Motion to Dismiss Denied.)
    (May 9, 1927. Opinion and Decree.)
    (October 3, 1927. Opinion and Decree on Rehearing.)

      (Syllabus by the Court)

    ON MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Appeal—Par. 222, 224, 361.
    Where the interest of plaintiff has been divested by seizure or other means, a party appealing from a judgment on a rule taken in the same proceeding to which rule plaintiff was not a party need not cause citation of appeal to be served on plaintiff.
    2. Louisiana Digest — Appeal—Par. 320, 326.
    Where no appeal was taken from a judgment refusing to dismiss an appeal upon motion filed in the trial court upon the ground that the bond was deficient, the question of the sufficiency of the bond will not be considered by the appellate court.
    ON THE MERITS
    3. Louisiana Digest — Attorneys—Par. 64.
    Where litigation, which lasted over five years, was involved and difficult, and where the defendant had contracted to pay fifty per cent of the judgment (amounting at present to twenty-six hundred [$2600.00] dollars) as attorney’s fees, the contract will be enforced and the equivalent of that amount will be fixed as a reasonable fee.
    Appeal from the Twenty-fourth Judicial District Court, Parish of St. Charles. Hon. L. Robert Rivarde, Judge.

      Action by Taft Mercantile Company against L. A. Blouin Co., Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Robert J. Perkins, of New Orleans, attorney for plaintiff, appellee.
    C. A. Buchler, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The motion to dismiss the appeal is based upon the contention that the Taft Mercantile Co. was not served with citation of appeal and upon the further ground that the amount of the bond was insufficient. The appeal was taken by. petition and if the Taft Mercantile Company was interested in maintaining the judgment appealed from it should have been cited. But the appeal is taken from a judgment on a rule to which the Taft Mercantile Company was not a party, though the original plaintiff in these proceedings. The plaintiff in rule, an attorney-at-law, Mr. Robert J. Perkins, filed a motion herein in his own name in which the court was asked to order- the clerk of court to pay to mover a certain amount of money alleged to be due him out of certain funds then in the possession of the clerk. How the funds originated and why the plaintiff in the original proceedings was not made a party to the rule involve useless discussion of complicated litigation. We shall only observe that the interest of plaintiff in this ' suit had been seized and sold by creditors under writs of fieri facias and completely divested at the time this rule was taken and judgment thereon rendered.

Consequently, the Taft Mercantile Company was without interest in the judgmept on the rule from which this appeal was taken and there was no necessity to serve it with citation of appeal. Katz & Barnett vs. Sorsby, 34 La. Ann. 590.

As to the second ground urged for dismissal, the insufficiency of the appeal bond, this contention formed the basis of a motion to dismiss filed in the lower court and no appeal has been taken from the judgment denying the motion to dismiss. Under the circumstances, we will not review the judgment.

Our conclusion is that the motion to dismiss must be and it is denied.

Motion to dismiss appeal denied.

ON THE MERITS

JONES, J.

This case was consolidated in this court for purposes of argument with Milliken & Farwell vs. Taft Mercantile Company, No. 9998 of this docket, as the issues in the two cases are closely related and the parties litigant practically the same.

The question involved here is the amount of the fee to be allowed R. J. Perkins as attorney for the Taft Mercantile Company in this case.

Perkins alleges that he had obtained judgment for one thousand nine hundred forty-four and 88-100 ($1944.88) dollars with five per cent interest from November 18, 1918, and all costs, and that he had a contract for fifty per cent of the judgment as attorney’s fee and that said contract had been recorded in St. Charles parish; that the Southern Surety Company had signed a bond for two thousand ($2000.00) dollars to release the sequestration; that execution had issued against L. A. Blouin & Company without result; that the entire judgment had been seized by the Henry Lochte Company and all the judgment but the attorney’s fee had been seized by Milliken & Farwell.

He prayed that the surety company be ordered to show cause why that part of the judgment belonging to him should not be paid to him. The surety company filed an exception of prematurity. L. A. Blouin excepted on the ground that they had not been made parties and had not been served.

On October 29, 1924, Judge Edrington gave judgment as prayed for.

On October 31, 1924, a motion for a new trial was granted and by consent of all parties the surety ° company deposited in the registry of the court the sum of fifteen hundred ($1500.00) dollars.

On December 23, the Blouin Company answered, denying the validity of the fifty per cent contract and asking that a reasonable fee be fixed on a quantum meruit.

On December 30, 1924, Judge Rivarde gave judgment for a fee of nine hundred ($900.00) dollars in addition to the amount already received of approximately one hundred ($100.00) dollars, and the clerk of the court was ordered to pay that amount out of the funds in his hands.

Prom that judgment Blouin & Company took a suspensive appeal and the Taft Company and Perkins have answered the appeal, asking for the equivalent of fifty per cent of the judgments, say one thousand and three hundred ($1300.00) dollars, less the hundred dollars already paid.

In the judgment handed down this day in the case of Milliken & Farwell vs. Taft Mercantile Company, No. 9998 of this court, it has been decided that appellant, L. Blouin & Company had no privilege on the proceeds of the sale of the judgment in this case. That decision necessarily deprives appellants of all interest in the question involved here because, if it has no interest in the judgment, necessarily it can have no interest in the amount due out of that judgment for attorney’s fees.

As the record shows that Perkins had a contract with the Taft Mercantile Company for fifty per cent of the judgment as his fee and as the record also shows that the litigation, which was carried on for over five years, was involved and difficult, we think the amount claimed is reasonable.

Por the above reasons the judgment appealed from is amended, and it is now ordered, adjudged and decreed that the fee of Robert J. Perkins, attorney for plaintiff in this case, be fixed at twelve hundred ($1200.00) dollars, and the clerk of the court of St. Charles parish is hereby ordered to pay the said amount out of the money in his possession to Robert J. Perkins.

It is further ordered that the defendant pay all costs of these proceedings.

ON REHEARING

CLAIBORNE, J.

As attorney for plaintiff in this suit, on April 30, 1924, Robert J. Perkins, after a laborious trial, obtained a judgment against L. A. Blouin Co., Ltd., for $1944.88 with five per cent per annum interest from November 16, 1918, till paid.

The petition in that case was attested by George Lorio, president of the Taft Mercantile Co., who swore that he was authorized to bring the suit.

The suit was accompanied by a sequestration which was released on a bond of $2000 signed by the Southern Surety Co.

On October 2, 1924, Attorney Robert J. Perkins took a rule on the Southern Surety Co., on Henry Lochte, and on Milliken & Parwell in which he alleged that he was the owner of fifty per cent of the above judgment under a contract for attorney’s fees with the Taft Mercantile Co.; that the defendant, Blouin, owned no property; that Lochte & Co. and Milliken & Farwell had seized the judgment; and he prayed to he paid that portion of the judgment belonging to him, with privilege according to Act 124 of 1906, p. 210.

By judgment rendered October 29, 1924, the rule was made absolute.

On December 23, 1924, by consent of all parties, Robert J. Perkins withdrew his rule, and it was agreed that the surety, the Southern Surety Company, should deposit in court fifteen hundred dollars, said sum to remain in the registry of the court until it was finally adjudged who was entitled thereto, said deposit to release the surety company from all further liability.

On July 8, 1924, George Lorio, president, and Robert J. Perkins joined in the following statement of the agreement between them as to the ' attorney’s fees. They stated that an amount of about $12,000 was claimed by the Taft Co. from the Blouin Co. for cane sold and delivered; that the Blouin Co. denied owing a part of said amount; that George Lorio, president and manager of the Taft Co., employed Robert J. Perkins to collect said claim as he was authorized to do by the by-laws of the company; that through the efforts of said Perkins the Blouin Co. paid an amount exceeding $10,000, leaving an amount contested by Blouin of $1944.88; that no agreement had been made concerning the fee to be paid to Perkins for his services; but it was understood that the said Perkins would retain his fee for the whole claim out of the amount recovered from the amount contested and sued for, “and it was agreed that said Perkins have and recover as his fee for the whole claim one-half of whatever amount is recovered, or for Whatever amount judgment is obtained against said Blouin Co. as his fee for professional services in said claims, and that he is authorized to retain one-half of any amount or amounts collected as a. result of his said professional services”.

L. A. Blouin answered said rule, admitting the judgment in favor of Taft Co. for $1994.88 admitting the bond and the deposit of $1500 by the surety company, admitting the sale of the Lochte judgment to Blouin & Co., and the sale of the Taft judgment to Blouin. Blouin denied all the other allegations of the rule and specially denied that Perkins was entitled to more than a quantum meruit for the reason that Lorio, had no right to make the contract alleged for attorney’s fees in the name of the Taft Company.

There was judgment in favor of Perkins for $900 in addition to the $100 already received by him from the Canal Bank and ordering the clerk to pay said sum to him out of the money deposited. From this judgment the Blouin Co. has appealed.

Perkins has answered the appeal by praying for judgment “for the equivalent of fifty per cent of the amount of the judgment, say one thousand three hundred dollars, less $100 received from the Canal Bank”.

Our original decree amended the judgment of the District Court by increasing it to $1200.

From this judgment Blouin & Co. asked for a rehearing and charge the following errors in the opinion:

1st. That there was no contract for a fifty per cent attorney’s fee.

The agreement to that effect is in the record and copied in part hereinabove, Robert J. Perkins swears to it. But Blouin contends that Lorio, the president of the Taft Co., had no right to make that contract.

Lorio had the right to employ an attorney; that cannot be denied, as the validity of the Taft judgment depends upon that authority, and Blouin & Co. have asserted it by buying the judgment. If Lorio had authority to employ an attorney he had authority to fix his fee. 1 L. D. 71, No. 20; Clay vs. Ballard, 9 Rob. 308; Buck & Beauchamp vs. Blair & Buck, 36 La. Ann. 21.

2nd. That this court is in error in holding that a fee of $1300 is a reasonable fee on an original claim of $1944, said fee being clearly excessive.

We do not understand this proposition as stating the case correctly. We understand that the claim originally put in the hands of Perkins was some $12,000, that the Blouin Co. admitted $10,000, which they paid after demand made by Perkins; that they denied the claim of $1944 for which Perkins subsequently obtained judgment after a long trial. Upon this judgment the surety company had paid $1500 after suit by Perkins and the Blouin Co. themselves have purchased it for $1005, and the Canal Bank has paid $130, making a total of $2635.

The judgment of $1944 bears five per cent per annum interest from November 16, 1918; our judgment was rendered May 9, 1927, making more than eight years’ interest. If Perkins is entitled to a fee, and if his fee has been fixed at fifty per cent, as the evidence shows it has been, then the original judgment on the date of our decree bore forty-two per cent interest, or $816, making a total of $2760, one-half of which is $1330, a sum larger than that allowed by us.

We are not of the opinion that a fee of $1300 under the conditions explained above was excessive, especially if we consider that it was to be due only after judgment and collection.

It is therefore ordered that our original decree remain undisturbed.


source: Caselaw Access Project

author: JONES, J. CHARLES F. CLAIBORNE

license: Public Domain

text:
    No. 9513
    Orleans
    PAUL v. ARNOULT
    (February 28, 1927. Opinion and Decree.)
    (March 28, 1927. Rehearing Refused.)
    (May 23, 1928. Writ to Supreme Court Granted.)
    (November 29, 1927. Opinion and Decree of Supreme Court on Writ of Certiorari and Review; Reversed.
    See 164 La. —, 114 So. 706.)

      {Syllabus by the Court)
    1. Louisiana Digest — Marriage—Par. 265, 268.
    All actions for revenue falling in the community must be prosecuted by husband as head of the community.
    (Refer to Louisiana Digest, Bills and Notes, Par. 184. — Editor’s note.)
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Mrs. Albert L. Paul against' John B. G. Arnoult.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Claude L. Johnson, of New Orleans, attorney for plaintiff and appellant.
    Joseph Rosenberg, of New Orleans, attorney for defendant and appellee.
    CLAIBORNE, J., dissents.
   OPINION

JONES, J.

This is a suit for three hun dred and fifty dollars ($350.00) rent, by Mrs. Albert' L. Paul, aided and authorized by her husband. When the suit was filed, the judge ordered writ of provisional seizure to issue and the civil sheriff seized the contents of the house.

Attached to the petition was a printed lease, containing the usual stipulation, signed by the defendant and by Albert Paul, Agent, also seven rent notes, each signed and endorsed by the defendant, each made payable to the order of “myself”.

To this petition, defendant filed exceptions as follows:

1. That the plaintiff has no right to file this suit or stand in judgment herein, as it should have been filed by the husband, the head and master of the community; that the lease purports to have been signed by the husband as lessor and not by the wife, plaintiff herein.

2. No cause of action.

These exceptions were overruled and defendant, reserving benefit of exceptions, then answered, denying all the allegations of the petition and averring that he had contracted with Albert Paul, individually and attaching his copy of the lease to his answer.

On direct examination Albert Paul, the husband of plaintiff, testified that the defendant had drawn up the lease, knowing that the property belonged to Ms wife, that he had signed the lease and given defendant a copy and later had written the word agent after his name in the lease after his signature.

When it came out on cross-examination that he had never notified defendant of this change and when this fact was confirmed by the absence of the word “agent” from defendant’s copy of the lease, as alleged in the answer, the judge at once dismissed the suit of plaintiff and dissolved the writ of provisional seizure on the ground that plaintiff had sued on one contract and the proof showed no such contract existed.

In his brief in this court plaintiff’s able attorney seeks to overcome this apparently fatal variance between the “probata and allegata” by arguing that the unopposed statement of the husband on the stand that the defendant knew he was renting from the wife cured the defect, because “evidence, unobjected to, enlarges the pleading”. Although this eminently wise and equitable principle has been repeatedly applied by our appellate courts to remedy the omission of necessary allegations, we can find no case in which it has been carried to the extent herein sought for.

To stretch this salutary doctrine to cover this variance would be not to enlarge the pleadings but to contradict the allegation that plaintiff leased the property to defendant, for the proof shows that she did not lease it, but her husband did. We are thus asked to change the parties to a suit because the testimony shows that the suit should have been brought by the husband instead of the wife.

To justify this change of parties, plaintiff argues that the revenue of the separate property of the wife administered by her belongs to her and that payment to the wife will protect the husband in this case, as the husband here was acting as agent for his wife in signing the lease.

In attempting to sustain this position, plaintiff quotes Articles 2384 and 2387 of the Civil Code to the effect that the wife has the right to administer personally her paraphernal property without the assistance of her husband, and may withdraw this power, if she has given it to him, and also the decision of the Supreme Court in Miller vs. Handy, 33 La. Ann. 164.

We do not deny the law as quoted by plaintiff, but we hold that the articles and the decision quoted a're not applicable to the facts in the case. Here the husband signed the lease as principal, which shows that he was administering the property at that time and there is absolutely no proof that the wife ever withdrew the administration from him.

The statement of the husband that the defendant knew that the leased property belonged to his wife certainly does not show that the wife was administering the property. On the contrary, even if we admit for the purpose of argument that defendant did have the knowledge attributed to him, we must also admit that he never knew that the husband was signing the lease as agent for the wife, for the husband also swears he never made this fact known to the lessee.

Under these circumstances defendant must have concluded that the property was under the management of the husband and such a conclusion was amply justified by Arts. 2385 and 2386 of the Civil Code, which read as follows:

“The paraphernal property, which is not administered by the wife separately and alone, is considered to be under the management of the husband.” (Art. 2385.)
“When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, belong to the conjugal partnership, if there exists a community of gains. If they do not, each party enjoys, as he chooses, that which comes to his hands; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.” (Art. 2386.)

As far as this record shows the only act, done by the wife, which even tends to show that this property was ever administered to any extent by her is the filing of this suit in her name. As she does this authorized and assisted by her husband, she can hardly be said to have been acting separately and alone as required by Art. 2385 C. C.

In the decision in Miller vs. Handy, 33 La. Ann. 160, on page 163, Judge Fenner, the organ of the court, uses the following language:

“The evidence conclusively shows that Mrs. Jackson administered the plantation in her own name, her husband acting as her agent by virtue of procurations, which she was careful always to prepare and deposit with her merchants, who are shown to have recognized her authority as principal in all transactions and the authority of her husband solely as her mandatory. The accounts with the successive merchants were always kept in her name; she was credited with all its revenues and charged with all its expenses. Her husband, who conducted other plantations for his own account, kept his own accounts with' the same merchants entirely separate from the wife’s plantation accounts.” (Miller vs. Handy, 33 La. Ann. 163.)
“So long as the acts of the spouses make it clear and certain that the wife intends to reserve the administration to herself and for her own benefit and to permit no acts to be done in reference thereto, except by herself, either personally or through properly constituted agents, and that the husband does not assume to interfere in the administration, except as the express and open agent of the wife, we can see nothing to prevent the administration from being considered as that of the wife ‘separately and alone’ in the sense of the law.” (Miller vs. Handy, 33 La. Ann. 164.)

Although we have given this case the most careful attention and have carefully considered both the original and supplemental briefs of plaintiff’s attorney, because we wish as far as possible to do away with mere legal technicalities, we have been forced to the conclusion here that the revenues of this property fall into the community of acquets and gains and that the husband as the head and master of the community should have filed the suit. .Even if we had reached a different conclusion, we are bound by the decision of the Supreme Court in the recent case of Mitchell vs. Dixie Ice Company, 157 La. 383, 102 So. 497, where the suit of the wife, authorized by husband, for damages to community property purchased in her name was dismissed on the ground that “all actions for damages for an injury done to community property or community business must be prosecuted by the husband as the head of the community”.

For the above reasons the judgment appealed from is affirmed.

DISSENTING OPINION BY HIS HONOR

CHARLES F. CLAIBORNE

The fundamental error, I believe, of the majority opinion is in assuming that the notes sued on are community assets. The notes were given for the rent of a house and the house was the separate property of the wife. This makes the notes the separate property of the wife. C. C. 499. When and if, the notes are collected by the husband, the proceeds will then only fall into the community. But the wife has at any time the right to resume the administration of her notes and to sue upon them.

But assuming that the notes are community assets. When the husband authorizes his wife to sue for a community debt, or when he testifies in her favor in her suit for a community debt, the judgment in favor of the wife is valid and binds the husband. Under these conditions the defendant is without • interest to contest the right of the wife to sue in her name. Cade vs. Reddit, 15 La. Ann. 492; Chapman vs. N. Q. J. & G. N. Ry., 21 La. Ann. 224; Stewart vs. Boyle, Wife of Robinson, 23 La. Ann. 83; Holzab vs. N. O. & C. Ry. Co., 38 La. Ann. 188; Lewis vs. Holmes, 109 La. 1035, 34 So. 66; Badie vs. Columbia Brewing Co., 142 La. 856, 77 So. 768; specially Malmore vs. Martinez, 144 La. 95, 80 So. 212, Orl. App. Nos. 7997 O. B. 57 No. 8603 O. B. 64.

A fortiori is the . above correct when suit is brought upon a- negotiable promissory note. C. C. 2145, Negotiable Inst. Act 1904 No. 64, Sec. 51, p. 155; Shaw vs. Thompson, 3 Mart. N. S. 392; Franek vs. Brewster, 141 La. 1032, 1045, 76 So. 187, 1 La. Dig., p. 972; S. 184; 8 C. J. 593; 33 Dalloz Rep. Leg., p. 380, S. 1733.

When a wife, as plaintiff, alleges 'that she is authorized by her husband and the answer does not' deny it specially, the presumption is that the allegation is true. 2 H. D. 1152 No. 9; Durham vs. Heirs of Daugherty, 30 La. Ann. 1256, Orl. App. No. 8603 O. B. 57.

To defeat an honest claim by this technicality, seems to me a denial of justice.

For the above reasons I respectfully dissent.

(Signed) CHAS. F. CLAIBORNE, Judge.


author: JONES, J.

text:
    No. 9824
    Orleans
    WHITNEY-CENTRAL NATIONAL BANK v. CUNEO AND FIDELITY & DEPOSIT COMPANY OF MD.
    (July 5, 1927. Opinion and Decree.)
    (October 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Notaries—Par. 8.
    When a notary public executes a chattel mortgage on one side and a real estate mortgage on the other side of the.sainé sheet of paper, it is his duty to call the , attention of the Recorder of Mortgages specifically to the two Acts and to pay fqr filing both Acts the legal fees.
    2. Louisiana Digest — Notaries—Par. 12, 13.
    ■Where the notary fails in above duties and the Recorder of Mortgages does not inscribe the real estate mortgage on his records and an innocent third party is damaged thereby, the notary and his surety are liable.
    3. Louisiana Digest — Mortgages—Par. 73.
    The purpose of Act 215 of 1910 was to give mortgages rank according to the date of their filing. The Act contemplates that actual inscription shall follow the filing and when timely inscribed, they take effect from the time of filing.
    4. Louisiana Digest — Laws—Par. 14.
    If this Act, No. 215 of 1910, is to be construed so that mortgages shall affect the property of third persons before they are recorded in the parish where the property is situated, then the Act is unconstitutional.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Whitney-Central National Bank against Alphonse J. Cuneo and Fidelity & Deposit Co. of Maryland.
    There was judgment for defendant, and plaintiff appealed.
    Judgment reversed.
    Milling, Godchaux, Saal & Milling and Eugene Saunders, of New Orleans, attorneys for plaintiff, appellant.
    Jas. B. Rosser, Jr., of New Orleans, attorney for appellee.
   JONES, J.

Plaintiff, as the holder of certain mortgage notes, sues the surety and the notary before whom was executed a mortgage securing the payment of the notes.

The basis of liability is that the defendant in ciolation of his duty failed to cause the mortgage to be recorded until a year and a half after its execution and as a result of- his failure in this respect the mortgaged property was sold by the mortgagor to a third person and petitioner was thereby deprived of its security.

The defense is that the act of mortgage was promptly filed in the mortgage office and the notary did all that was required of him. The Recorder of Mortgages was originally called in warranty but was after-wards dismissed from the suit.

There was judgment for defendant and plaintiff has appealed.

The evidence shows that plaintiff is the holder in due course for value of five notes in the amount of fifty dollars each, executed by one Emmet O’Neill on April 27, 1922. To secure the payment of these notes O’Neill executed a chattel mortgage before the defendant, Alphonse J. Cuneo, a notary public for the Parish of Orleans.

As -additional security for the payment of the notes, one A. L. Cummings executed before the defendant on the same day, April 27, 1922, a mortgage on certain real property.

The record contains a certified copy of this mortgage, which shows that the chattel mortgage was executed on a printed form on one side of a single sheet of paper and on the reverse of this printed sheet, but as an entirely separate act, was executed the mortgage of the real estate. In other words, both acts were written on a single sheet of paper; on one side was the chattel mortgage, on the other side, the mortgage of real estate. At the bottom of the side on which appeared the chattel mortgage were written the words “READ OVER”.

Oil May 1, 1922, this single sheet was deposited with the Recorder of Mortgages for the Parish of Orleans, and the sum of fifty cents was paid the recorder to cover the cost of recordation. The chattel mortgage was recorded on May 1, 1922, in Book 1271, at page 76, hut the mortgage of real estate was not then inscribed in the records.

On October 13, 1923, the document was again deposited and the sum of one dollar and fifty cents was paid to cover the cost of recordation. The mortgage of real estate was then duly recorded as of date October 13, 1923, in Book 1280, at page 205.

On the back of the chattel mortgage, under the real estate mortgage, are found the following endorsement on the original:

“Recorded May 1st, 1922, Mortgages 50c, A. C. W. 9:15 A. M.
“Recorded in Mortgage Office Book 1271, fo. 76, New Orleans, La., 5/1/1922'. Signed, Robt. Scott, D. R.
“Recorded, Oct. 13, 1923, Mortgages $1.50. 11:15 A. M.
“Recorded in Mortgage Office Book 1280, fo. 205, New Orleans, 10/13/1922. Signed, Robt. Scott, D. R.”

Between May 1, 1922, the date on which the chattel mortgage was recorded, and October 13, 1923, the date on which the real estate mortgage was recorded, A. L. Cummings, the mortgagor, sold the mortgaged property without declaring the existence of the unrecorded mortgage above described.

Defendant’s clerk testified that he called the attention of the cashier of the Mortgage Office to the writing on the back of the document when he carried it to the Mortgage Office on May 1, 1922, and asked him the charge and thereupon paid the amount demanded, namely fifty cents, and left it with the cashier.

The notary, who had been acting as such jn this city for seventeen years, testified that the Recorder of Mortgages had a file or box in his office for every notary in New Orleans and that it was the custom of the Recorder to place, whenever the document left for recordation contained any error, the document without recording it, in the notary’s box with a note attached calling attention to the error and asking the notary to explain; that in this case no such step had been taken and he believed the recordation O. K., until his attention was called to the error by plaintiff’s attorney on October 13, 1923, when he paid $1.50 additional and had the real estate mortgage recorded; that he had written the words “Read Over” at the bottom of the original chattel mortgage, and had told his clerk to call the attention of the cashier to these words.

On cross-examination he said that he knew the charge for filing a chattel mortgage was fifty cents and the charge for filing a real estate mortgage $1.50; that he did not recall the exact amount of money given the clerk that morning to file these two mortgages, but gave him sufficient money to pay for these and other acts and other certificates. The clerk, though he had been filing papers for the notary for ten years, said on rebuttal, that he did not know the cost of filing any document, that he always asked and paid the amount demanded.

The deputy cashier testified that he did not recollect the filing of the document.

Upon maturity of the notes plairatiff filed suit against the maker and endorsers and secured a judgment for the amount of the notes, interest and costs and twenty per cent attorney’s fees, with recognition of the real estate mortgage and the chattel mortgage. When he tried to execute this judgment plaintiff discovered that the automobile was held by a garageman in Hammond, La., as security for a storage and ¡repair' bill in excess , of tbe value of tbe .car, and that tbe real estate bad been sold ;,to 'tbe prejudice of plaintiff’s mortgage and •tbis suit was brought to recover from defendant tbe amount which- plaintiff could .have realized from tbe property bad tbe .mortgage been timely recorded.

Although Article 3370 of tbe Civil Code makes it the duty of all notaries to cause to be recorded without delay all mortgages executed by them, it is contended that a mortgage is in contemplation of law recorded when it is deposited with tbe recorder of mortgages and that defendant, therefore, complied with bis duty when be paid fifty cents and deposited tbe above-described paper with tbe Recorder of Mortgages on May 1, 1922, and that tbe mortgage of real estate was effective from that date notwithstanding tbe fact that it was ■not actually inscribed in tbe mortgage records.

Prior to 1910 a mortgage was not effective as against third persons until it bad been actually recorded; that is, copied into tbe mortgage book, but tbe argument is made that under tbe provisions of Afct 215 of 1910 a mortgage was made effective against third persons from tbe date of its deposit, even though it was never actually recorded.

Act 215 of 1910 provides:

“That all acts or instruments of writing wbicb import mortgage or privilege shall, when deposited with tbe Recorder of Mortgages for record, be immediately indorsed by him with the date, hour and minute of filing; wbicb indorsement shall be recorded with tbe registry of such instrument.
“* * * All such instruments shall be effective against all persons from tbe time of their filing.”

By Act 136 of 1880 tbe Recorder of Mortgages is required to exact a charge of one dollar and fifty cents ($1.50) for recording a mortgage of real estate, and under Act 198 of 1918 tbe fee for recording a chattel mortgage is fixed at fifty cents. When tbe document herein under consideration was deposited in tbe Mortgage Office the sum of fifty cents was paid to cover .the cost of filing. Tibe law fixed the charges for recording these acts; defendant was charged with knowledge of these laws; and neither defendant nor tbe Recorder of Mortgages bad the authority to dispense with tbe payment of these legally imposed charges.

If tbe attention of tbe cashier bad been called specifically to tbe fact that two separate acts bad been written on one piece of paper, a very -unusual and a very careless method of preparing notarial acts, and if tbe Recorder bad exacted tbe payment of tbe fees fixed by law for tbe recording of two acts, but bad failed to actually inscribe both acts in tbe record, there would possibly be reason for bolding that the Recorder bad been careless, but inasmuch as the Recorder treated tbe document at all times as being nothing more than a chattel mortgage, it seems apparent that be riever realized that defendant was attempting to file a mortgage of real estate with him.

Tbe document was certainly one wbicb would tend to confuse tbe Recorder and defendant, knowing tbis fact, should have made a special effort to see that tbe Recorder was not misled.

Tbe law requires tbe Recorder of Mortgages to keep a separate book for tbe inscription of chattel mortgages. When tbis document was returned to the defendant it contained tbe certificate of tbe Recorder of Mortgages to tbe effect that but one inscription bad been made and one charge paid. Tbis was notice to tbe defendant that both mortgages bad not been recorded and then be should have caused the mortgage to be recorded.

■ Furthermore, defendant only paid fifty cents to record this entire document and he must have known that he had not paid to record the real estate mortgage, as he swears he knew that the Recorder always Gharged $1.50 for a real' estate mortgage.

The Recorder of Mortgages is an agent of the State to ¡perform the duties imposed upon him, upon receiving the fees stipulated by law. The fees do not redound to his benefit but to the benefit of the State. Under these circumstances the Recorder of Mortgages is vested with no discretion as to whether or not he will charge the fees imposed by law, it being his mandatory duty to exact payment of the legal charges; and he has no authority to perform his duties without exacting payment of the legal charges therefor.- If the Recorder of Mortgages received the fees fixed by the law, it might well be said that he had discretion as to extending credit or serving without compensation, but inasmuch as he is not the beneficiary of these funds, he is vested with no discretion whatever.

As to the fact that the payment of the fee fixed by law is a necessary prerequisite to the filing of a document, the Supreme Court of Indiana in the case of State vs. Chicago & E. I. R. Company, 43 N. E. 226, used the following language:

“The rule may be asserted that, where the statute provides that the filing fee shall be paid in advance of the filing of the document, and where the money therefor does not, under the law, go to the officer with whom the same is required to be filed, as his o.wn remuneration, but goes into the public treasury for the benefit of the State, as it does in accordance with the requirements of the statute in question, the. officer must be considered (at xeast, in discharge of the duty enjoined upon him) to collect the fee in advance for the services rendered by the State through him, as the agent of the latter; and, as such, he is not authorized to file the papers er articles presented and required to be filed, although they may be left at his office or in his custody for such purpose, until the fee is first paid; and in consideration of law, they cannot be held or deemed to be filed until there is a compliance with this requisite condition. Under such circumstances the law is the letter of the officer’s agency, and he has no warrant to waive the advance payment of the fee.”

And to the same effect is the decision of the Court of last resort in California in the case of City St. Imp. Co. vs. Babcock, 68 Pac. 584, wherein the court said:

“Originally the filing of a paper consisted in having the proper officer put it uipon the stringfilum — on which the other papers in the proceeding were placed. In modern days it is usually held that a paper is filed on the part of the party who is required to file it when he has presented it at the proper office and left it with the person in charge thereof (Tregambo vs. Mining Co., 57 Cal., 501), and paid the fees for filing if any are required (Boyd vs. Burrell, 60 Cal. 280). The subsequent omission of the officer to make any indorsement thereon will not prejudice his rights.”

If the deposit of a paper constitutes the filing of everything thereon the Recorder of Mortgages must determine at his peril whether or not any writing appearing on the paper filed with him, not contained within the act which he has been paid to record, should be recorded. The Recorder could not refuse to accept a paper containing an act of mortgage or chattel mortgage because it also contained other writing and it would impose a great burden upon the Recorder of Mortgages to require him to examine every document coming into his office to determine whether or not anything beyond the particular document, which he has been paid to record should also be recorded in his records.

C. C. Art. 3342 provides that mortgages are only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose.

We, therefore, conclude that the real estate mortgage was not, in contemplation of law, filed with the Recorder of Mortgages on May 1, 1922, and that this being the case, it had no effect even if Act 215 of 1910 be construed as otherwise applicable to the facts of this case.

However, we do not believe defendants’ construction of that act is correct for the following reasons:

The obligation of the notary is set forth in Article 3370 of the Revised Civil Code in the following language:

“It shall be the duty of notaries, and other public officers acting as such, to cause to be recorded without delay, all acts creating mortgages, which shall be executed by them, whether such mortgages be conventional or legal.”

The language of this article is practically the same as that of Article 3329, R. C. C., which provides that mortgages shall have effect among creditors only from the time of recording, and in construing this latter article, the courts have consistently held that that the word “recorded” meant actually inscribed in the mortgage book, the mere filing, unlike conveyances, being insufficient. The leading case on that point is State Ex Rel. Slocumb vs. Sheriff, et al., 30 La. Ann. 833, in which case the court said:

“The real and, only question at issue here is whether or not the filing of the act of mortgage in the Recorder’s Office has the same effect as the transcribing or recording of the act in the book of mortgages. We have been referred to the case of Payne vs. Pavey, 29 La. Ann. 116, decided by us at the last term in New Orleans, as conclusive of the question. That case only determined the effect of the filing of a conveyance of lands in the office of registry, and it was correctly held under the positive and unequivocal provisions of the Civil Code that the conveyance took effect as to third persons from the date of filing in the proper office, although not actually recorded or transcribed in the books until long afterwards, and we expressly declined in that case to express any opinion as to whether the same rule prevailed in regard to mortgages. It may be, and indeed is, argued that there is nó good reason for a distinction, and that the same rule should apply to both. In the Pavey case we said what we have not occasion to repeat, that ‘the laws of registry are arbitrary,’ and that in many cases this Court has considered itself bound to refuse relief, because ‘ita lex scripta est’. However arbitrary the distinction may seem, and in fact is, the provisions of the law in regard to the time from which sales and mortgages shall take effect against third persons are essentially different. As we held in the Pavey case, conveyances take effect against third persons by the positive and express terms of the law from the time they are deposited and filed for registry in the proper office. In regard to mortgages which are stricti juris on the other hand, the Civil Code, Art. 3329, provides in express terms that ‘among creditors the mortgage whether conventional, legal, or judicial, has force only from the time of recording it in the manner hereafter directed’; Article 3342, ‘that these mortgages are only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose, and in the manner hereafter directed’; Article 3345, that ‘all mortgages, whether conventional, legal, or judicial, are required to be recorded in the manner hereafter provided’; and Article 3348, that ‘any person entitled to a mortgage or privilege on the property of another person must cause the evidence of such mortgage or privilege to be recorded in the mortgage book of the parish where the property is situated’. We here find not that mortgages like conveyances take effect from the time they are deposited or filed in the proper office, but only from ‘the time they are’ actually ‘inscribed’ ‘on records kept for that purpose,’ and that the recording must be in the mortgage book of the parish where the property is situated; and so it has often been held that the registry of a mortgage in the book qf conveyances though in the proper office is insufficient and without effect as to third persons, the only exception being where it appears that only one book of record is kept, ip which both sales and mortgages are registered indifferently. See Robertson vs. Brown, 5 La. Ann. 154; Carpenter vs. Allen, 16 La. Ann. 435; Verges vs. Prejean, 24 La. Ann. 78, and authorities cited.”

Until Act 215 of 1910 was passed the law was apparently well settled that the use of the word “record” in a statute meant actual inscription, and, under this jurisprudence, Article 3370, R. C. C., could only be construed to require a notary to cause a mortgage to be actually inscribed in the mortgage records. The only doubt that could possibly arise on this point would result from the effect to be given Act 215 of 1910. It should be noted, however, that Act 215 of 1910 does not, either expressly or impliedly, purport to affect the provisions of Art. 3370 of the Civil Code with reference to the duties of notaries public. It deals only with the legal effect to be given the filing of acts of mortgage for recordation and does not even attempt to make filing equivalent to or synonymous with recordation. The meaning of the words remain the same and, hence, the obligation of notaries was not affected by that law.

That Act 215 of 1910 was never intended to apply to. a situation such as is herein presented was recognized by the Court of Appeal for the Second Circuit in the case of Lederman vs. McCallum, 1 La. App. 552. In that case a judgment had been filed for record on June 28, 1919, but not recorded until March 23, 1920. The judgment was not recorded in June, 1919, for the reason that a rehearing had been timely applied for and most of the case is taken up with a consideration of the effect of Act 190 of 1918, but, in dealing with Act 215 of 1910, the court used the following language:

“Counsel for plaintiff, appellee, contends that Act 215 of 1910 governs in this case. We do not think so. That act is to ‘require the Recorder of Mortgages to endorse on all acts importing mortgages or privileges the date, the hour, and the minute of filing, and to make such instruments effectual against third persons from the date of their filing.
“The purpose of this act was not to give effect to acts importing mortgages but to give them rank according to the date of their filing. The act contemplates that actual registry shall follow the filing and when timely registered they take effect from the time of the filing.”
$ $ $ *
“All that Act 215 of 1910 was intended to do and all that it did was to make it certain that such acts take effect from the very hour and minute of the day on. which they are filed; that is, to rank the claims of creditors who file such acts on the same day.”

This same court in the case of Charrier vs. Greenlaw Truck & Tractor Company, 2 La. App. 622, again construed Act 215 of 1910 as not, under all conditions and circumstances, making the filing of a document the equivalent of recording it. In that case a chattel mortgage was filed for record, but, through error of the clerk, the name of the notary was inserted as mortgagor instead of the name of the true mortgagor and, hence, as recorder, the mortgage did not constitute notice. of a mortgage against the mortgagor. The property subject to the chattel mortgage was sold and the person in whose favor the chattel mortgage had been granted attempted to enforce the chattel mortgage against the property in the hands of the purchaser, and in support of his right to do so. contended that the filing of the chattel mortgage under Act 215 of 1910 made it effective against third persons without regard to whether or not it was subsequently recorded correctly. The court held that Act 215 of 1910 should not be so construed.

“In our opinion Act 215 of 1910 is one of a system of laws, the purpose of which is to provide a means whereby anyone interested in a particular piece of property subject to the system can and should show its title and mortgage condition on the public records and whereby anyone intending to become interested in it can ascertain that condition from the records; whether this latter consults it or not, he is bound by it on the one hand and can rely on it on the other.
“In view of this purpose, can we say that a mortgagee is under no obligation to do more than deposit his mortgage with the (proper officer, and that by merely doing so he preserves his right, although that officer may fail to record it or may record it in such a way as to give false and misleading information instead of true information?
“It is true the law declares that the act shall take effect from the time it is filed, but it says this in contemplation of obedience to its direction that the act shall be recorded, of course, meaning that it shall be recorded correctly.
Si Si s, *
“Article 186 of the Constitution of 1898 was substantially the same. It provides:
“ ‘No mortgage or privilege on immovable property shall affect third persons, unless recorded or registered in the parish where the property is situated, in the manner and within the time as is now or may be prescribed by law.’
“In. view of this constitutional provision, the one in effect when Act 215 of 1910 was passed, it is questionable whether the Legislature could validly make mortgages on immovable property effective against third persons merely because filed though not recorded or improperly recorded.
“We express no opinion as to this, because the question of constitutionality is not raised and the case does not involve immovable property. We merely advert to it to remark that if possible Act 215 of 1910 should be so construed as not to violate the constitutional provision.”

The court expressed quite convincingly the reasons why, in its opinion, the Legislature never intended that Act 215 should receive the construction contended for therein, saying:

“To hold otherwise would be to violate the equitable maxim that where one of two innocent parties must suffer the loss should rather fall on him by whose fault or negligence it happened.
“It- would be also to defeat instead of effectuate the purpose of the registry laws, thus violating what the Civil Code declares is the most effectual way of discovering the true meaning of a law, arid would corivert what the lawmaker designed to be a reliable guide for the most important transactions into a trap not only for the unwary but even for the most prudent and diligent.”

If Act 215 of 1910 declares that mortgages shall be effective from the date of filing, irrespective of whether or not they are subsequently recorded, we hold that this act is unconstitutional as being violative of the Constitutions of the State of Louisiana.

At the time this Act was adopted, the Constitution of 1898 was in effect and this Constitution contains the provision quoted above.

The Constitution of 1913 contains the same provision under the same article number.

The Constitution of 1921 provides, Article 19, Section 19:

“No mortgage or privilege on immovable property, or debt for which preference may be granted by law, shall affect third persons unless recorded or registered in the parish where the property . is situated, in the manner and within the time prescribed by law ****.”

At the time these provisions were inserted in the various Constitutions the law of Louisiana, as we have already pointed out, was apparently well settled that the word “recordation” means the actual inscription in the mortgage records. It must be assumed,' therefore, that the framers of the Constitution used that word in the sense in which its meaning had become well understood and established. The language in the Constitutions is practically. the same as the language of the Civil Code which, as above stated, had been construed as requiring the actual recordation of a mortgage. Inasmuch, therefore, as the Constitutions of 1898, 1913 and 1921 require, that a mortgage in order to affect third persons be actually inscribed in the mortgage records, we conclude that an act of the Legislature making mortgages effective from the date of filing without regard to whether or not they were actually recorded is violative of these constitutional provisions, and, hence, unconstitutional.

For above reasons, the judgment is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, the Whitney-Central National Bank, and agains* defendants, A. J. Cuneo and the Fidelity & Deposit Company of Maryland in solido in the sum of Three hundred thirty-three and 10/100 ($333.10) Dollars with eight per cent interest on Two hundred fifty ($250.00) Dollars from April 27th, 1922, until paid and legal interest on the balance from March 19ch, 1923, until paid.


author: LECHE, J.

text:
    No. -
    First Circuit
    BRAND v. EVANS
    (December 6, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Aleatory Contracts— Par. 1; Obligations — Par. 54.
    Payment of money loaned to another to pay a gambling debt to a third party can be forced by law, as it is not an immoral contract.
    • Appeal from the Parish of East Baton Rouge. Hon. Carruth Jones, Judge.
    • Action by W. A. Brand against Chas. F. Evans.
    • There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. B. Smulling, of Baton Rouge, attorney for plaintiff, appellee.
    ' Sachse & Darsey, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The claim in this suit is for one hundred and twenty-five dollars, represented by a check drawn by defendant in the State of Mississippi on a bank in Baton Rouge. Plaintiff lives in Mississippi and in due course caused the check to be presented for payment. The drawee bank, upon instructions of defendant, refused payment, and plaintiff then brought the present action.

The defense in substance is that the suit is to enforce the execution of an immoral contract, that plaintiff, with defendant and others, was engaged in a dice game, known as “craps,” in the town of Okolona, Mississippi, that the amount called for by the check represents a part of the losses of plaintiff in the game, and that such a claim is not actionable under the laws of Louisiana. ■ -

From a judgment in favor of plaintiff, defendant has taken the present appeal.

The evidence is that the plaintiff and one Pressly engaged in a game of “craps” in a room over a garage, occupied by John B.ean; that although plaintiff, who is a relative of defendant, and others were present, plaintiff took no part in the game. That the premises did not belong to plaintiff and were not under his control; that plaintiff at the reguest of the defendant, who wished to pay his losses to Pressly, loaned him this amount of money in cash, and that defendant made out the check in suit, in favor of plaintiff in order to reimburse him the amount thus loaned. Clearly there was nothing immoral in the contract between the plaintiff and defendant and the defense is therefore not proven.

The judgment appealed from is correct and should be affirmed, and

It is so ordered.


text:
    No. -
    First Circuit
    VICKERS v. COBURN
    (December 6, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 208.
    Where allegation is made that signature is a forgery, the trial judge, under Civil Code Article 2245 and Code of Practice Article 325, has the right to make comparison of handwritings and draw his own conclusions therefrom.
    2. Louisiana Digest — Evidence — Par. 59, 208.
    Where defendant denies signature the burden of proof is on plaintiff to prove signature’s genuineness.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by Wiley Vickers against W. J. Coburn.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles A. Holcombe, of Baton Rouge, attorney for plaintiff, appellee.
    H. K. Strickland, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

T¿is suit is upon a written instrument in the following words and figures:

“Denham Springs, La.,' Jan. 2, ’22.
Due Wiley Vickers $1000.00 One Thousand & No/100 dollars. Due on demand.
W. J. Coburn.”

The answer alleges that defendant’s signature is a forgery.

Plaintiff’s sister is the wife of defendant and the parties are therefore brothers-in-law.

At the time the instrument purports to have been drawn, thereafter and within some time previous to the filing of this suit, October 22, 1925, the relations between (plaintiff and defendant were friendly and intimate. Plaintiff often visited defendant and on several occasions spent some time at the latter’s home. It was on one of these visits, that plaintiff says he loaned defendant the sum of One Thousand dollars and in order to evidence that fact, he further says that defendant wrote and signed the instrument in suit, on the dining table in his dining room. Both parties at that time lived in. the Parish of Livingston, but defendant later on, moved into the Parish of East Baton Rouge, where he presently resides.

Defendant denies having borrowed the one thousand dollars and he denies having written or signed the instrument. He admits, however, that on previous occasions, he once borrowed one hundred dollars and at another time three hundred dollars from the plaintiff, but says he repaid both of these loans. He further admits that the alleged forged signature could not have been written by plaintiff.

Fletcher, a witness for plaintiff, who had often seen defendant sign his name, was of the opinion that the instrument or due bill was really signed by defendant. The trial judge, who was able to examine the admitted signature of defendant to an act of sale, forming part of the archives of the Recorder’s office in Baton Rouge, after comparison, was also of the opinion that defendant’s signature on the due bill was real and genuine. Some question is raised in argument as to the right of the trial judge to make a comparison of handwritings and to draw ■ conclusions from his own examination of the writings, but such a proceeding is clearly sanctioned by Article C. C. 2245 and Art. C. P. 325. It would indeed be a strange anomaly if judges could not make comparisons of handwritings, but would have to depend solely upon so-called expert testimony, which, although generally helpful, is by no means infallible. Watts vs. Collier, 140 L. 99; 72 South. 822.

The evidence also shows that plaintiff was in the habit of lending money and that, therefore, he was not too impecunious to have made the loan of one thousand dollars to his brother-in-law. It is also unlikely that plaintiff could have procured the assistance of some one else to forge an instrument for such an amount, payable to himself and of no benefit or advantage to the real forger. Defendant’s signature to some of the pleadings in this Court, bears a striking similarity to that on the due bill. Another circumstance which throws doubt on the sincerity of defendant in his defense, is that a few days after the present suit was filed, he sold all his property to his son-in-law.

Of course, the burden of proof is on the plaintiff to prove the genuineness of the defendant’s signature, but we believe the evidence is sufficient to prove that fact.

We find no error in the trial judge’s ruling; his judgment should be affirmed; and it is accordingly so ordered.


text:
    No. -
    First Circuit
    ROBBINS v. THE MENGEL CO.
    (December 6, 1927. Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 154, 158, 160 j.
    The Workmen’s Compensation Act No. 20 of 1914, and amendments, should be liberally construed in favor of tbe injured employee, but in order to recover be must show with certainty that the pains complained of were caused by in'juries incurred while performing duties arising out of and in the course of his employment.
    ■ Appeal from the Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by A. J. Robins against the Mengei Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Moise Thibodeaux and S. S. Taylor, of Baton Rouge, attorneys for plaintiff,- appellant.
    H. P. Breazeale, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

The plaintiff alleges that he was injured while in the employ of defendant, about the latter part of June, 1924, that defendant provided him with necessary medical attention, that he was able to return tq his work about the beginning of July, 1924, and was again injured the latter part of July, 1924, while so engaged. That he, however, kept on doing light work for defendant until September, 1924, when he was summarily discharged. He further alleges that the injuries thus received by him, have, partially and permanently disabled him, and he demands compensation at the rate of Twenty dollars per week for a period not exceeding three hundred weeks, or Six thousand dollars.

The District Court rejected his demand and he has appealed.

Plaintiff’s testimony discloses the fact that at the time he received his first alleged injury, he was treated by physicians qf his own selection, that defendant paid all the expenses of the medical treatment and continued to pay his wages in full. That when he returned to work, his employers gave him lighter work and that he received a second injury the latter part of July, 1924. It is shown that plaintiff was discharged for causes not connected with these alleged injuries, about the fourth of September, 1924, and that all the wages earned by him up to the time of his discharge were paid promptly and in full.

Defendant on the other hand claims and shows that it received no notice of the second injury and therefore knows nothing of it.

The injury of which plaintiff complains is to the muscles and ligaments of his back, known in medical parlance as the “sacro-iliac ligaments”.

Plaintiff admits that previous to his employment by defendant, he had been injured while at work for the Natalbany Lumber Company, but this was of a minor character; that he had been injured by falling off a horse and that he had also been injured while enlisted in the United States Army at Pascagoula, Mississippi. Either of these last injuries might have caused the physical pain of which he complains. He admits that since his injury he had been out deer-hunting, and that for several months he was employed as driver of a yellow cab, an automobile without a self-starter, and propelled by an engine which may only be set in motion by a hand crank, a task which requires a normal and healthy back.

It is also shown that since receiving the injury of which he complains, plaintiff, as a member of a benevolent fraternal organization, made demand upon that organization for sick benefits and that he was turned down for making false statements as a basis for his demand.

Doctor Watson, who was first consulted by plaintiff for the alleged injury received by him the latter part of June, 1924, could not say whether the injury was serious or only of a minor character. Doctor Coyt Moore, an osteopath, found no fractures or dislocations. Doctor Walton, another osteopath, could not say that plaintiff was partially or permanently injured. Doctor Robert found no objective symptoms of pain or injury. Doctor Lorio, who is also of high standing in the medical profession in the City of Baton Rouge and who made a most thorough examination of plaintiff, did not believe that plaintiff was either partially or permanently injured or disabled.

Our conclusion, after weighing all the testimony in this case, is that the record fails to show with any degree of certainty that the pains of which plaintiff complains, are caused by an, injury which he received the latter part of June, 1924, while he was performing duties arising out of and during the course of his employment by defendant.

It is not sufficient to show that a claimant for compensation, under the Employers' Liability Act, suffers, and while conceding that the Act should be liberally construed in favor of the employee, ft must, as a matter of common justice, be shown that the suffering arises from an injury received while in the employment of the employer.

The District Judge refused plaintiff’s demand and the record shows no reversible error.

The judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    PITTMAN v. Y. & M. V. R. R. CO.
    (December 6, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Railroads—'Par. 67, 79; Pleadings — Par. 23, 27, 62.
    In' crossing accidents, failure to stop, look and listen before driving on to the crossing need not be alleged in the petition in order to state a cause of action, but is a matter of defense. Therefore, exception no cause of action is over-ruled.
    Appeal from the District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Enoch Pittman against Yazoo & Mississippi Valley Railroad Co.
    There was judgment for defendant on an exception no cause of action and plaintiff appealed.
    Judgment reversed and ease remanded.
    Shelby Taylor and A. B. Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Plaintiff, Enoch Pittman, alleges the destruction of his truck by the fault and negligence of defendant, Yazoo & Mississippi Valley Railroad Company.

The defendant excepted to the petition on the ground that it did not set forth a right or cause of action. The exception ■was sustained, and the suit dismissed.

The plaintiff goes into details, alleging that his automobile truck, while being operated on a public road, was struck and destroyed by defendant’s train at a public crossing, where the road crossed defendant’s track. The faults and neglects are enumerated, and if the allegations are true as stated, the plaintiff would have a right to recover.

The plaintiff does not allege that his driver stopped, looked and listened before entering, on the crossing, as provided for by Act 12' of 1924. The defendant urges that his failure is the principal reason why the petition does not set forth a right or cause of action.

We think the exception should have been over-ruled.

The failure to stop, look and listen before driving on the crossing, is a ■ matter of defense, which defendant must plead in order to urge it, and it may or may not be good. It depends on the .facts and circumstances of the case, Maher vs. Louisiana Railway & Navigation Co., 143 La. 386, 78 South. 602.

The judgment appealed, from is, therefore, annulled, avoided, reversed t and set aside, the exception in question over-ruled, and the case remanded to the lower Court to be further proceeded with as the law provides.

The cost of the. exception and of this appeal to be paid by appellee, all other costs to abide the final result of the case.


author: MOUTON, J.

text:
    No. -
    First Circuit
    WATSON v. HOLMES AND BARNES, LTD.
    (December 6, 1927. Opinion and Decree)

      {Syllabus by the Editor)
    • 1. Louisiana Digest — Master and Servant - — Par. 158.
    . The widow cannot recover under the Workmen’s Compensation Act No. 20 of 1914 and. amendments where employee was killed three hundred and seventy-three feet from, the premises of his employer while he was on a personal errand and riot in the course of his employment, and in disobedience to instructions given to him by his master.
    Appeal from the Parish of East Baton Rouge, Hon. Wm. Carruth Jones, Judge.
    ' Action by Mrs. Martha Pipes Watson against Holmes and Barnes, Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. P. Odom and C. C. Bird, of Baton Rouge, for plaintiff, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

Defendant company, Holmes and Barnes, has a wholesale grocery store and warehouse on a block of ground in the City of Baton Rouge, bounded north by Government Street, south by France street. east by St. Philip Street, and west by St. James Street.

Defendant had also a mule corral which was situated just across Prance Street, and south of defendant’s wholesale grocery store.

William W. Watson was employed by defendant to guard or watch over these premises during the night between the hours of six p. m. and six a. m.-

Between the hours of 9 and 10 o’clock of the night of March 4, 1925, Watson was run over by a truck and killed at the intersection of St. Philip and Europe Streets at a distance of 373 feet from defendant’s grocery store and warehouse.

Plaintiff, as surviving spouse of Watson, sues defendant company in damages under the Employers’ Liability Act. Her demand was rejected. She appeals-.

The case eomés upon an agreed statement of facts.

This statement shows it was a rule of defendant company that its night watchman should pot leave the square or block bounded by Government, St. Jame?, St. Philip and Prance Streets for any purpose whatsoever except to inspect and to punch the station clock in the mule corral immediately across Prance street which runs south of defendant’s store and warehouse; and also that Watson had been apprised of that rule and explicitly instructed by the officers of the company not to leave the square of Holmes and Barnes except to visit the mule corral which was situated across ' Prance Street, fifty-three and one-third feet wide.

There was a store at the corner of St. Philip and Europe Streets, which was located about-373 feet from the grocery store and warehouse of defendant company.; It is said in the statement of facts that about twice a week Watson.would send some one to the store -at the corner of St. Philip and Europe Streets to get milk and matches to be used by him on the premises he was employed to watch; that he hardly went to -the store himself, although occasionally he did go personally. It is, however, stated, that defendant.had no knowledge of Wat-son having left its premises while on duty as night watchman to go to the store, nor did it know he had left these premises on the night of the accident, or intended to leave.

As a matter of fact it is only supposed that Watson, on -the night he was killed, had gone, or was going to that store for the purpose stated, as there is no proof to that effect as appears from the statement of facts.

It is therefore apparent that if Watson, was going to the store for the purpose stated or was returning therefrom, he had not left the premises he was employed to watch, for the purpose of discharging any duty, devolving upon him as night watchman; that he was, therefore going or coming , from the store, on an errand or mission of his own, and as also appears from the statement of facts, in violation of the rule of the company, and the specific instructions he had received from its officers. He was, at the time he was: killed, 'a little over 373 feet from 'the premises he was employed to watch over and protect. He was there on a personal errand or mission, and as far as the record discloses, for his individual interest or convenience. It is impossible to' say under evidence of the character above referred to, that' deceased received the' injuries from which- he died, by “accident arising out of and in the course • of his ' employment”. In Piske vs. Brooklyn Cooperage Co., 143 La. 455, 78 South 734, the party killed had temporarily left the building in which he was required to be, and where it was shown his employment did not justify him in going, to to the place where he was injured. The Court held his widow was not entitled to recover. Here, it does not only appear that he had left the premises where he was required to remain, but had done so in disobedience to the orders he had received from the Company, and in violation of one of its rules of which he had been warned.

Counsel for plaintiff refers us to the case reported in Prevost vs. Gheens Realty Co., 151 La. 508, 92 South. 38. In that case, the employee when injured was going from his work to his lodging house on the employer’s premises, where he had the privilege of sleeping as a part of the compensation for his work. In the instant case, the deceased was hurt, not on his employer’s premises where it was clearly his duty to remain, and he was certainly not going where he was privileged to go under the terms of his employment, and which was-to be considered as a part of the compensation for his work. Nothing of that exists here, which shows the inapplicability of the case cited to the merits of the present contention.

Counsel for plaintiff relies, it seems, confidently on the ease of Craft vs. Gulf Lumber Company, 151 La. 281, 91 South. 736. That case was one in damages by the. parents for the killing of their minor son, the result of an automobile accident. It was shown there that the driver of the auto had been instructed to remain at his stand at the corner of Melpomene and Dryades Streets. He picked up a passenger and parked his car a few blocks from the stand which had been assigned to him. The Court found he had slightly departed from his instructions, but that “he had some discretion as to how to act, at that time, in order to best serve his employer”. If deceased in this case was vested with any such discretion, it is not revealed by the record. Counsel for defendant in support of his contention in the case above cited that the employee was acting within the scope of his employment, referred the Court to Brenner vs. Ford, 116 La. 550, 40 South. 894. In that case, the Court said the servant had acted contrary to his master’s instructions, that he was on a mission of his own, and that, therefore, the master was not liable. Counsel also referred to cases of other States, wherein the Court found that the servant or servants had acted without authority or in disobedience to the instructions of the master, which the Court held, had the effect of absolving him from liability. The distinctions drawn by the Court in the case of Craft vs. Gulf Lumber Co. make it quite clear that when the employee acts without authority, in violation of his manifest obligations, and in disobedience to instructions given him by his master, as clearly appear in the instant case, the claimant can not recover. The demand of plaintiffs was therefore correctly rejected.


text:
    No. -
    First Circuit
    CROSS v. CITY OF BATON ROUGE
    (December 6, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Municipalities — Par. 99.
    The City of Baton Rouge has the discretionary powef under Act No. 169 of 1898, as amended by Act No. 31 of 1904 and- Act No. 17 of 1924, to order sidewalks built according to grade specified by the city regardless of whether sidewalks had been built at another grade prior thereto.
    2. Louisiana Digpst — Mandamus—Par. 45, 50.
    The City of Baton Rouge, having the discretionary power to order sidewalks built according to grade specified, cannot be deprived of this right by writ of mandamus which can be invoked only where there is no element of discretion left in the performance of duty.
    Appeal from the Parish of East Baton Rouge. Hon. ffm. Carruth Jones, Judge.
    Action by State ex rel. T. Jones Cross against City of Baton Rouge.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. Jones Cross, of Baton Rouge, attorney for plaintiff, appellant.
    H. Payne Breazeale and C. C. Bird, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

This is a proceeding by mandamus to compel the defendant to construct a suitable pavement in front of relator’s property on St. Napoleon Street in the City of Baton Rouge. The demand for the writ is based on the alleged grievance that the sidewalk is twelve inches lower than the wall of the street curbing and the elevation of the center of the street, thus causing a depression in the sidewalk, where, after rains, water collects and which interferes with relator’s tenants in getting in and out of the premises.

Relator alleges that if the sidewalk is permitted to remain in the condition it is at present, he will suffer damages in the sum of $500.00 in the depreciation of his property and the reduction of its rental value. He does not, h'owever, ask any damages, but confines the relief sought by him, as shown by the prayer of his petition, to the issuance of a mandamus compelling the defendant city, through its agents and officers, to elevate the sidewalk in front of his property to a proper grade, and to lay thereon a suitable pavement.

The City of Baton Rouge was incorporated or given its charter by Act No. 169, 1898, page 329. The power to enact paving or banquetting ordinances was conferred on the city by Section 6 of Act No. 31 of 1904, page 38. Under Section 6 of the Act of 1904, amending Section 42 of the prior Act, the city was given the authority to fill, grade and pave, plank or otherwise improve its sidewalks. It was also given the power to assess against the estate abutting the sidewalk the cost incurred to pave or improve it. Act 169, 1898, incorporating the City of Baton Rouge was amended again by Act 17 of 1924, page 22, but there were no changes made by that Act to the provisions which existed in the previous Acts in reference to the powers conferred on the city to pave and improve its sidewalks. In Landry vs. City of Lake Charles, 125 La. 210, 51 South. 120, the Court held that the cost for the repair of a sidewalk could be imposed on the abutting real estate, but not for the construction of an entirely new sidewalk when the owner had previously furnished one. The contention of relator in this case is that he has already furnished a sidewalk in front of the premises in question at his own expense, and which he admits the city could compel him to repair at his cost, but he maintains that the city is attempting to force him to build an entirely new sidewalk at his expense, which he contends it cannot do under the doctrine announced in the decisions hereinabove cited.

Counsel for relator admits that cities or municipalities are vested with the discretionary power to repair or build sidewalks within their corporate limits, and accedes to the elementary proposition that the exercise of that discretion through its officers, cannot be controlled by mandamus proceedings. He contends, however, that there are exceptions or limitations to all general rules, and that his case falls within one of these exceptions.

In support of the position so taken by him, relator contends that the city, having adopted the lines, elevations and plans in reference to the sidewalk, and having notified him through its proper officers to build it in accordance therewith, that it has exercised its discretion, and is now committed on the point that the public interests require that this pavement should be erected. He contends that the sidewalk has been ordered to be built as designed and that the failure or refusal of the city to build it would be in disregard of a plain and obvious public duty, and that under such circumstances, mandamus will lie to force the hands of the municipal authorities.

Relator refers us to LeBaron & Son vs. Dupont, 11 La. Ann. 140, where a mandamus was maintained compelling the police jury of Carroll Parish to order the levee of a special tax for the construction of a court house under the provisions of Act No. 20, 1853. Under Section 6 of that Act, the Police Jury, of that parish was ordered to levy a special tax to build a court house. The Court held that its refusal to make an appropriation for the building was in direct violation of the sixth section of that statute, and maintained the mandamus; clearly, there was no discretion vested in the Police Jury that could have authorized it to- evade its plain duty imposed upon it by statutory authority.

In the instant case it cannot be said that the defendant city in ordering plaintiff to bring up the pavement to the requirements of the levels or plans was acting in violation of any direct command of any law or statute. If it was acting contrary to any obligation, it was only in opposition to the duty of the city to build the sidewalk which relator contends resulted from the exercise of its discretion in ordering the laying of .the pavement. If the duty to construct the sidewalk devolved on the city and became fixed as a legal obligation by the exercise of its discretion, the reaching of that conclusion could be obtained only by deduction from the facts of the case, which are rather conflicting as to whether the Order to raise the sidewalk to the proper level involved the repair thereof or the building of a new one. Such an issue cannot be assimulated to the contravention of a special statute, as was the issue presented in the 11th Annual, above referred to; and, certainly not to some ministerial or well defined duty usually controlled by the writ of mandamus.

Relator also cites -Henderson vs. Shreveport, not yet published • in our reports, ■where the Court said:

“It is the plain duty of the School Board to divest itself of any land which admittedly, according to the judgment of the board itself, was unnecessary or unsuitable for school purposes; and mandamus would certainly lie to compel the board to divest itself of land so held.”

■ It is clear from the language used in the foregoing excerpt that the land referred to had been discarded as being unnecessary-• or unsuitable for school purposes. The Court, in that case, we presume, reached the conclusion that the school board "had' exhausted its discretion in the premises, as it could not he possible for it thereafter to retain the land in spite of the declaration hereinabove reproduced. The issue submitted here is not covered by the. rule above referred to- It cannot be successfully contended that the city was bound to build the sidewalk exactly according to the grade, levels or plans it had adopted in the order by which relator was directed to construct it. The city had the unquestionable right at any time prior to the building of the. sidewalk by relator, to order any change or alteration of the levels or plan. The discretionary power to do so still remained in the city. It could not be cut off of this right by the writ of mandamus, which can be invoked only where the duties sought to be enforced are clear and specific, and no element of discretion is left in their performance.

State vs. Police Jury, 39 La. Ann, 2 South. 305.

State vs. Police Jury, 29 La. Ann. 146.

State vs. Board of Liquidation, 42 La. Ann. 647, 7 South. 706, 8 South. 577.

Relator has no right to compel the defendant city by mandamus to elevate, the sidewalk in question to a certain grade and to lay the pavement' as prayed for. He must obtain such relief as he may he entitled to by some other legal process.

The relator’s suit was properly dismissed.


text:
    No. -
    First Circuit
    PIPES v. IRVINE AND UNION INDEMNITY CO.
    (December 6, 1927. Opinion and Decree.)

      (Syllabus Tyy the Editor)

    1. Louisiana Digest — Roads, Bridges and Ferries — Par. 12, 13; Bonds — Par. 8.
    The contractor’s bond provided for by Act No. 224 of 1918 for building public road is purely statutory and, therefore, restricted to the provisions of the act.
    2. Louisiana Digest — Roads, Bridges and Ferries — Par. -12, 13; Bonds — Par. 8.
    The bondsman is not liable on a bond written in compliance with Act No. 224 of 1918 for supplies such as tires, tubes, parts, oil, gas and batteries used in repairing trucks while contractor was engaged in building a public road.
    (Sec. 3 of Act 224 of 1918 has been amended by Act 271 of 1926.- — Editor’s note.)
    Appeal from the Parish of East Baton Rouge. Hon. G. Pavrot, Judge.
    Action by David M. Pipes against John P. Irvine and Union Indemnity Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.

      Taylor, Porter, Loret & Brooks, of Baton Ronge, attorneys for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

John F. Irvine entered into a contract with the Louisiana Highway Commission to build a public road, and furnished a statutory bond with the Union Indemnity Company as surety. Suit was brought on an open account for $182.07 against Irvine and the Union Indemnity Company. Judgment was rendered against Irvine by default for the amount claimed; also, against the Indemnity Company for $21.85, from which it prosecutes this appeal. Irvine has not appealed.

The items which were furnished Irvine, principal on the bond, consisted in tires, tubes, parts, oil, gas and batteries that were used in repairing Irvine’s trucks, used in the construction of the road, but which were not, as it is obvious, incorporated in the work.

The issue presented must be solved under Act 224, 1918, except for $11.25, item for 3 sacks of oats, which falls under the provisions of Act No. 203, 1924, as will be hereafter explained.

The surety is, under the provisions of Act 224, 1918, responsible on his bond for “labor performed, or material furnished in the construction, erection, alteration or repair of such building, road, etc.” This court, in Court of Appeal Rep., Yol. 1, p. 731, held that a bondsman was not liable on a bond written in compliance with said act, for items of account such as tomatoes, soap, onions, potatoes, flour, etc., which had been furnished a contractor engaged in the building of a public road. The claim, in that case, was for supplies furnished for teams and laborers. We held that the claimant could recover for “material furnished in the construction” of the road or “used in said work” under Sections One, Two and Five of said Act. We held that superadded stipulations had no place in the bond; that if the word “supplies” was therein used, it had to be read out of the bond so as to make it conform to the requirements of Act 224, 1918, which limited the liability of the bondsman to materials furnished in the construction, alteration or repair of the road. We held if the Legislature had intended that claims for “supplies” for teams as being recoverable under the1 Act, we could not see why in Act 203, 1924, the right of recovery had been conferred on those advancing feed for mules or livestock used by a contractor in constructing or repairing a public road.

The items claimed herein, above referred to, were evidently used to repair the trucks Irvine, the contractor, was using in connection with his work to construct the road. It is evident from the character of the items that they were not and could not have been used in the building of that highway. In buying these supplies for his trucks, Irvine naturally incurred a personal debt therefor, but we cannot see how his bondsman can be held responsible for such items, under the provisions of Act 224, 1918. It will be seen by the provisions of Act 271 of 1926, that the Legislature amended Section 3 of. Act 224 of 1918, by specially providing that a claimant can recover on account of having furnished materials or supplies “for use in any machine used in the construction, erection, alteration, or repair of any public road, building, etc.” It will be noted in that amendment of the former statute that the word “supplies” is added to the word “material” which was exclusively used in the prior act; and which was also further broadened by providing for recovery of such material or supplies furnished “for use in any machine used in the construction, erection, repair, etc., of any public road, building, etc.”

The Act of 1926 would never have been enacted if the former statute of 1918 had ever been intended to confer the right of recovery for materials or supplies furnished to be “used in any machine used in the construction, repair, etc., of any building or public road” specifically covered by the subsequent statute; which, however, finds no application here as the supplies were furnished prior to the enactment of the Act of 1926. We refer to that Act merely to show the legislative purpose which led to the enactment of the later statute and which makes it quite obvious that plaintiff has no right to recover on the bond of the Indemnity Company for materials which were used to repair the trucks of Irvine for his individual benefit, and which were not used in the construction of the road in question.

Counsel for plaintiff place great reliance on the case of Miller vs. Bruner, 163 La. 331, 111 So. 776. That suit which included claims for materials or supplies was predicated on a bond which had been furnished by Bonner to the State of Louisiana under Act 49, 1910; and, on a bond which had been given by the plaintiff, a subcontractor, to Bonner. In the bond given by Bonner, the contractor, the highway department, had exacted a super-added condition that Bonner should pay for all materials and supplies, for wages of laborers, etc. This condition so incorporated in the bond, was, by the court, read out of the bond as mere surplusage. In the bond given by plaintiff, subcontractor, in favor of Bonner, he assumed the payment of the claim for materials, supplies, wages of laborers, etc., which the court eliminated from Bonner’s bond as not conforming to statutory requirements. In commenting on this feature of the case the court remarked that there was no provision in Act 49 of 1910 requiring a sub-contractor to give bond to a contractor. In connection with this observation, it was distinctly stated by the court that the bond of plaintiff, subcontractor, was not statutory, but was conventional, and necessarily constituted the law between the parties. It was on this basis, if we correctly understand the decision, that the amounts claimed as “supplies” for the repair of wagons, carts, road machines, treating of sick mules, etc., were held recoverable under the subcontractor’s bond. The bond in the instant case is purely statutory, and in no aspect can it be considered as conventional. Plaintiff is therefore confined and restricted in his right to the provisions of Act ‘224, 1918, which entitles a claimant to recover only for materials furnished in the construction, erection or repairing of the road or used in the work, but not for materials or supplies furnished for use in trucks used in connection with the building of a public road. The enforcement of such a claim could be obtained under the provisions of the Act of 1926, but not according to the provisions of Act 224, 1918, which we cannot enlarge to satisfy the relief sought herein.

Counsel for plaintiff refer us to the case of Thibodeaux & Harrison vs. Globe Indemnity Company of New York, Court of Appeal Rep., Vol. 6, No. 18, p. 380, in which we held that the bonding-company could make no defense not available to the contractor. In that -case, it clearly appeared. that the materials had been furnished to the contractor for the buildings for the construction of which they had been bought. They were of such a nature that they could not have been used except in the construction of those buildings. We held that the contractor, Watts, to whom they had been furnished could not possibly say he had not used the materials for that purpose, and we decreed that the bonding company could not interpose such a defense. The facts are so different here, where they show that from the very character of the materials furnished it would have been impossible for Irvine to have used them in the construction of the road in question.

The decision rendered by us in the case above cited has no application.

The court below rendered judgment against defendant for three items as follows: For 3 sacks of oats, $11.25; one plow, $10.00; 10 lbs. of nails, 60c. In this court defendant and appellee is asking to have the judgment amended as to the item of $10.00 for the plow, which it is evident did not go in the construction or repair of the work. This item must therefore be rejected. Appellee admits that the sum claimed for the oats for feed for the stock is recoverable under Act 203, 1924, to which we make reference in the beginning of this opinion. Defendant admits also the correctness of the trifle claimed for the nails.

It is therefore ordered and decreed that the amount of the judgment be reduced from the sum of $21.85 to the sum of $11.85, and, as thus amended, it be- affirmed, plaintiff to - pay cost of appeal, those of the lower court by defendant company.