text:
    No. 13,774
    Orleans
    HARTMANN v. EBEYER
    (January 11, 1932. Opinion and Decree.)
    Swords & Jung, of New Orleans, attorneys for plaintiff, appellant.
    F. B. Freeland, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

John F. Hartmann, a qualified and licensed certified public accountant, sued Paul Ebeyer for the sum of $233.13, claimed to be due for auditing services rendered.

Defendant filed exceptions of vagueness, no right or cause of action, and, reserving the benefit of the exceptions, which were referred to the merits, entered a general denial, the defense being that the services were rendered for account of Paul Ebeyer, Inc., and not for Paul Ebeyer, defendant, individually or personally.

There was judgment in favor of the defendant, dismissing the suit, and plaintiff has appealed.

The plaintiff testified that he went to the place of business of Paul Ebeyer, Inc., and began to audit certain books, at the request and on the instructions of Paul Ebeyer. On cross-examination the plaintiff testified as follows:

“Q. Now, two or three days afterwards, you discovered that the books were the books of the corporation?
“A. Yes, sir.
“Q. What, if anything, did you say to Mr. Ebeyer then?
“A. I told Mr. Ebeyer ‘Who is going to be responsible?’ and he said ‘It’s all right, I’ll try to get the corporation to pay the bill, but I’ll be personally responsible.’
“Q. He told you he would try to get the corporation to pay the bill and if the corporation didn’t pay it he would pay it?
“A. Yes, sir.
“By Mr. Freeland: At this time we renew our objection to all the testimony, and submit that on the testimony of the plaintiff himself, this, is a case of the promise •to pay the obligation of another and is not in writing and, therefore, he has no suit or standing in court.
“By the Court: In fairness to the witness, I’ll not dismiss the suit, but I’ll hear further evidence, in view of the fact that this statement on direct examination was, that credit was given directly to Mr. Ebeyer.’’

But, notwithstanding the fact that the court liberally allowed plaintiff to explain the agreement, as he understood it, he failed to convince the trial judge that the defendant had employed him to perform I he services for the defendant’s personal account. In fact, the plaintiff, on cross-examination, further admitted that he had sent several bills to Paul Ebeyer, Inc., for the purpose of collecting the fees in question, that, when the corporation was being liquidated, he filed a claim with the liquidator to be recognized as a preferred creditor, and that he was placed on the account in the liquidation proceedings of the corporation as Bf preferred creditor for the above claim. Such conduct on his part is wholly inconsistent with his present theory that the defendant is personally liable for ■ the services rendered in auditing the corporation’s, books.

We believe the case of Lawrason v. Banister, 13 La. App. 610, 128 So. 318, 319, is controlling and decisive of the issues presented. In that case we said:

“The testimony convinces us that defendant, Dr. Banister, did agree to pay Dr. O’Ferrall’s fee for services, to be rendered to his injured brother, In the event that his brother did not pay it. But as Dr. O’Ferrall’s testimony shows that it was his understanding of the agreement that if the defendant’s brother did not pay the bill for his medical services to be rendered, the defendant would, the obligation was not a primary or a direct one, but a secondary or collateral obligation, and therefore not subject to proof by parol evidence.
“Article 2278 of the Revised Civil Code provides, in part, as follows:
“ ‘Parol evidence shall not be received: * * * 3. To prove any promise to pay the debt of a third person.’ ”

See, also, Watson Bros. v. Jones, 125 La. 249, 51 So. 187.

Since the agreement between the plaintiff and the defendant was that, if the corporation did not pay the bill, the defendant would, and the agreement was not in writing, the case falls squarely under the article of the Code and above-cited decisions.

For the reasons assigned, the judgment is affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,802
    Orleans
    RICHARDSON v. AMERICAN NATL. INS. CO.
    (November 3, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)

      Weiss, Yarrut & Stieh, of New Orleans, attorneys for plaintiff, appellant.
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

The beneficiary of an accident and health insurance policy brings this action to recover its face value, certain accruals, attorney’s fees, and penalties.

Defendant filed exceptions of no right or cause of action on the ground that from the face of the record it appeared that the accidental injury and death of the insured occurred at 4:45 p. m. on February 20, 1929, and, therefore, after the policy had lapsed and the liability of the defendant had been suspended at 12 o’clock noon, standard time, February 15, 1929, under the express terms and conditions, of the contract, for non-payment of the premiums due at that time, and also after the expiration of the five-day grace period, which ended at 12 o’clock noon, standard time on February 20, 1929, as also expressly provided in the policy.

In a supplemental petition the plaintiff then filed a plea of estoppel on the ground that the defendant’s conduct and custom, in accepting delinquent premiums as, late as fifteen days after they were due for a period of four years, precluded defendant from asserting the suspension and forfeiture clauses of the policy. The plaintiff further urged that the five-day grace period did not expire until sunset, or 6 p. m. February 20, 1929, under the provisions of article 2057 of the Revised Civil Code; that the deceased, having died at 4:45 p. m. February 20, 1929, his death took place while the policy was in full force and effect.

The learned judge a quo sustained the exceptions and the plaintiff has appealed.

From the allegations of the original and supplemental petitions the policy, premium receipt books, and certain admissions which were made for the purpose of trying the exceptions, we find the following facts:

The defendant is in the industrial life insurance business issuing policies for sums of $500 and less, in consideration of weekly and monthly premiums. These policies provide weekly cash dividends for disability caused by sickness, or accident, and for death benefits. On January 13, 1925, the defendant insured Thomas Richardson, the deceased, under one of its policies, in consideration of the payment of $2 cash as a policy fee and a monthly premium of $1.95, payable in advance. Plaintiff, the mother of the insured, was designated as beneficiary. The policy provided that in the event of accidental death of the insured the beneficiary would be entitled to the principal sum of $500, plus¡ an accrual of 10 per cent added to the principal for each consecutive year’s renewal. The petitioner alleged that the policy was renewed and all of the premiums, paid for five consecutive years, and claimed that the face value of and accruals, under the policy together with double indemnity and attorney’s fees were due her as beneficiary.

The premium was due on or before the 15th of each month, but for practically four years it was paid tardily from three to fifteen days each month, without protest or objection by the company. These payments were accepted by the company and the premium receipt books show under each amount that they were “accepted only subject to the conditions of the policy.’’ The deceased was fatally shot at 4:45 p. m., February 20, 1929, and died immediately. The premium due at 12 o’clock noon, February 15, 1929, was not paid until February 22, 1929, or two days after the assured’s death. Upon learning that the assured had died previous to the payment of the last premium, the company tendered the return of the money, which the plaintiff refused to accept, and it was deposited in the registry of the court.

The pertinent parts of the clauses of the policy over which this controversy arose, and which we are called upon to interpret and construe, are as follows:

“In consideration of the......payment in advance of a policy fee of Two Dollars and a premium of $1.95 does hereby insure Thomas Richardson, subject to all the conditions herein contained and endorsed hereon, from 12:00 o’clock noon, standard time, of the day this contract is dated, until 12:00 o’clock noon, standard time, of the 15th day uf February, 1925, and for such further periods, stated in the renewal receipts, as the payment of the premium specified in said application will maintain this policy and insurance in force, against death or disability. * * * ”
(2) “A period of five (5) days of grace is allowed for the payment of any renewal premium, during which the policy shall be maintained in full force and effect in accordance with its terms, but if the payment of any renewal premium is made after the grace period of the policy has expired neither the Insured nor the Beneficiary shall be entitled to recover for any accidental injury sustained between the date of such expiration and 12:00 o’clock noon, standard time, of the day following the date of such renewal payment; or for any illness' originating or death occurring before the expiration of ten (10) days after the date of such renewal payment.”
(3) “If default be made in the payment of the agreed premium for this Policy, the subsequent acceptance of a premium by the Company or by any of its duly authorized agents shall reinstate the Policy, but only to cover accidental injury thereafter sustained and such sickness as may begin more than ten days after the date of such acceptance.”

We shall first discuss, the issue with reference to the five-day grace period. Learned counsel for the plaintiff argues that since this clause of the policy does not specifically provide that the five-day grace period shall expire at 12 o’clock noon, standard time, February 20, 1929, that, under the provisions, of article 2057 of the Revised Civil Code, the plaintiff had until sunset, or 6 o’clock, February 20, 1929, to pay the premium, and, therefore, the deceased having been accidentally killed at 4:45 p. m. of that evening, the policy was still in full force and effect. Counsel further says that this clause of the contract is susceptible of two -constructions — that is, that the five-day grace period ended at 12 o’clock noon standard time on February 20, 1929, or at sunset, 6 o’clock p., m. February 20, 1929, — and, therefore, the clause is ambiguous, and that the ambiguity must be resolved against the insurance company, which wrote and furnished the policy under the well established rule of interpretation and construction.

Defendant’s, able counsel replied that the provision cannot be isolated from the other clauses in the policy and must be construed in connection with and in the light of them, and that expiration of the grace period is definitely fixed at 12 o’clock noon, standard time, February 20, 1929, by the provisions of the policy.

Article 2057 of the Revised Civil Code of Louisiana reads as follows:

“Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligations, unless the object of the contract can not be done after certain hours of that day.”

It appears that there was no corresponding article in either the Code Napoleon or the later Code Civil. A research of the French commentators failed -to reveal any statement or doctrine which might have been responsible for the article’s origin. Unless the research has been faulty, this article was not derived from the Civil Law. Investigation of the common-law authorities was more fruitful, revealing a doctrine similar to that announced by the article of the Code; the essential difference between the common-law rule and the codal provision being that the article of the Code allows performance until sunset, while the common-law permits performance until midnight. It may be, as was suggested by counsel for defendant, that the theory of this article of the Code was taken from the common law and introduced into our Civil Code through the medium of Edward Livingston, who blended the features of the common-law contracts with the civil law of conventional obligations.

The common-law doctrine is stated in 26 Ruling Case Law, at page 734, as follows:

“So where one is given a stated number of days in which to perform an act, he may perform at any time up to the midnight of the last day.”

But this seems to be only the general rule, for we also find the statement (26 Ruling Case Law, p. 736) that:

“The general rule that the law knows no fractions of a day is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and therefore, like all other fictions, is never allowed to operate against right and justice, and there are many decisions which hold that fractions of a day will be taken into account in the computation of time, when, from the nature of the case, justice demands that that be done.”

Continuing on the subject, it is further stated (26 Ruling Case Law, p. 737) that:

“And where the parties to a contract stipulate for the performance of the contract by an agreed hour on a certain day the law in such case will take cognizance of the fractions of the day.”

Bearing in mind that the common-law general rule is identical with article 2057, except that under the common law the obligor has until midnight, rather than sunset, for a performance, we note that in the case of Edington v. Michigan Mutual Life Insurance Co., 134 Tenn. 188, 183 S. W. 728, where the policy was in effect from 12 o’clock noon, September 22, 1905, and ran for nine years, the Tennessee Supreme Court held that the policy expired at 12 o’clock noon, September 22, 1914.

In Matthews v. Continental Casualty Co., 78 Ark. 81, 93 S. W. 55, the facts were that defendant insured the life of plaintiff’s intestate against accidents occurring “within one year from 12 o’clock noon, standard time, of the date of the policy, which was the 11th day of December, 1902.” Just as in the case at bar the days of grace expired in five days and the language “12 o’clock noon” was not mentioned in the grace proviso, so in the cited case the policy did not specifically state that it expired at “12 o’clock noon,” December 11, 1903, but only “within one year from 12 o’clock noon,” December 11, 1902. The same argument was made that is now made here, that the law does not regard fractions of days — the only difference being that in the cited case plaintiff was contending that the policy expired at midnight, whereas here it is contended that it expired at sunset. The court overruled this contention in the following language:

“The defendant insured Ivan I. Matthews against accidents occurring ‘within one year from 12 o’clock noon, standard time, of the date of the policy, which was the 11th day of December, 1902.’ The accident to Matthews happened on the 11th day of December, 1903, at 4:30 o’clock in the afternoon. Did the defendant insure Matthews against this accident? This is. the only question in the case.
“The parties to the contract of insurance agreed and stipulated when the year should begin. They had the right to fix the time and did so. The contract is valid, and must be enforced according to its terms. The accident did not occur within the year so fixed, and plaintiff cannot recover.”

In the case of Troy Automobile Exchange v. Home Insurance Co., 102 Misc. Rep. 331, 169 N. Y. S. 796, 798, the facts were that the defendant had issued to plaintiff a policy of insurance covering theft risks on a number of automobiles. The policy itself was for a very short time, but, like the present one, was kept alive by the “renewals” or payments of the renewal premiums. On the face of the policy appeared the provision that the risk would run from 12 o’clock noon, standard time, of blank date, to 12 o’clock noon of the other blank date. The renewal certificates, like the provision covering the grace period in the case here, did not| use the language “12:00 o’clock noon, standard time,” but each merely covered the risk from the 30th of one month to the 30th of another.

The car in question was stolen on August 30, 1913, and the defendant predicated its defense upon the language of the certificate • covering this period . “from August 30th, to September 30th, 1913,” contending that the certificate of renewal did not cover the 30th of August, but excluded it. To this, contention the court replied:

“The defendant, however, insists that the insurance kept in force by certificate No. 10 runs from August 30 to September 30, 1913, and therefore, admitting the date of the theft to be August 30th, it is not included within the terms of the contract, because the word ‘from’ would not include August 30th, or any part thereof, but would begin the next day; but the certificate must be construed in the light of the policy under which it was issued, and, reading both together as we must, it is clear that the insurance was from noon of the 30th of August to noon of the 30th of September.”

In the case of Tufts v. Carradine, 3 La. Ann. 430, 431, where the question of priority among attaching creditors was involved, our Supreme Court said, in interpreting article 2057 of the Revised Civil Code (then article 2052 of the 1825 Code):

“It has been repeatedly held that, the general rule that the law admits of no fractions of a day, is a mere legal fiction; that it is subject to numerous, exceptions; and that, whenever it becomes necessary to determine who of several persons has a priority of right, time may be distinguished with accuracy. In the case of Callahan v. Hallowell, 2 Bay (S. C.) p. 9, .the court said that: ‘Time is in its nature essentially divisible from years down to hours and minutes; a minute therefore will give priority as essentially in point of time, as a year or a day.’ The court, in its opinion, refers to the case of Combe v. Pitt, 3 Burr. Rep. 1423, 1434, in which Lord Mansfield said: ‘But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, when it is necessary, and can be done; for it is not like a mathematical point, which cannot be divided.’ ”

See, also, Wittenberg v. Trautman, 3 La. App. 787.

From the foregoing authorities we conclude that, under both the common law and the codal article, contracting parties have the right to stipulate for the performance of the contract by an agreed hour on a certain day and the law in such case will take cognizance of the fractions of the day.

Does the contract in question contain such a stipulation?

Returning to the provisions of the policy, it clearly appears that it was the intention of the parties to have the policy commence and end at 12 o’clock noon, standard time, and not at sunset, or 6 p. m., or any other time. The policy specifically provided that it should commence at 12 o’clock noon, standard time, on January 13, 1925, the date on which it was issued, and end at 12 o’clock noon on February 15, 1925, “and for such further periods stated in the renewal receipts.” The renewal receipts, state that payment was accepted “only subject to the conditions of the policy.”

Plaintiff concedes that the premium was due at 12 o’clock noon on February 15, 1929. The very provision of the policy upon which plaintiff is forced to rely to defeat a lapse of the policy stipulates that in the event of any premium being paid after the lapse of the policy, neither the beneficiary, nor the insured, shall be entitled to recover for an accident sustained between such lapse and 12 o’clock noon of the day following 'the payment of the renewal premium. The argument of plaintiff’s attorney is predicated upon only a few words of the clause in question, which he attempts to isolate from the language of the balance of the clause and the other clauses in the policy. To accept this interpretation would be to give the plaintiff not only five days’ grace, but five days, four hours, and forty-five minutes. We do not believe that this was contemplated by the parties and that the language in question must be interpreted in connection with the remainder of the clause and also the other provisions of the policy, which, as a whole, show that the policy commenced and ended at 12 o’clock noon, whether it was terminated upon the expiration of the term or upon the termination of a renewal period, or upon the termination of the grace period. All of the periods of time in the policy are based upon 12 o’clock noon. We find no uncertainty or ambiguity or conjecture in the language of the policy on this point.

We shall now pass to a consideration of the plea of estoppel.

In a late authority on the subject of insurance, 6 Couch’s Cyclopedia of Insurance Law, sec. 1375, pp. 4939, 4940, we find the following:

“* * * * So, a provision that in case of a lapse of an insurance policy for nonpayment of premiums the insurer shall not be liable for death of insured for any cause for a specified period after reinstatement, although the arrearage is fully paid up, is valid, and prevents recovery where death occurs during such period. Similarly, acceptance of an overdue premium sufficient to work a revival or reinstatement does not affect a waiver of the provision limiting liability to a return of premiums in case of death from disease contracted during the specified period after revival. * * * ”

See, to the same effect, 4 Cooley’s Briefs on Insurance (2d Ed.) p. 3800 et seq.

In Denton v. Provident Life & Accident Insurance Co., 238 Ky. 26, 36 S. W. (2d) 657, 659, the Court of Appeals of Kentucky had occasion to pass upon a plea of estoppel where the policy embodied the identical provision here in question. The organ of the court stated:

“ * * * The whole transaction was simply a reinstatement of a lapsed policy subject to the conditions attendant upon a reinstatement set out in the policy, which appellant knew or of which he was charged with knowledge. The condition upon which the policy was reinstated was that it should not cover any illness which began less than 10 days after the acceptance of •the premium, and as appellant’s illness began within that time, it was not included within the indemnity provided for by the policy. See American National Insurance Co. v. Otis, 122 Ark. 219, 183 S. W. 183, L. R. A. 1916E, 875.”

In American National Insurance Co. v. Otis, 122 Ark. 219, 183 S. W. 183, 184, L. R. A. 1916E, 875, 876, it was said:

“We know of no ground of public policy which forbids an insurance company from including the above as one of the conditions upon which its policy holders who are ‘out of benefit’ — i. e., who have been suspended for non-payment of premium— may be reinstated, nor is there any ground of public policy forbidding the policy holder from accepting the renewal of the policy and reinstatement upon these conditions. In the absence of some statute or some well-recognized ground of public policy forbidding such conditions, the parties have a right to make them and are bound by them. See Conway v. Minn. Mut. Life Ins. Co., 62 Wash. 49, 112 P. 1106, 40 L. R. A. (N. S.) 148. * * *
“So the case we have here is not one of 'waiver of forfeiture or estoppel by conduct, but it is the simple case of enforcing a contract that the parties have made. As was said by Wheeler, J., speaking for the Supreme Court of New York, in Greenwaldt v. United States Health & Accident Ins. Co., 52 Misc. Rep. 353, 102 N. Y. S. 157, 158: ‘While the courts have been reluctant to permit insurance corporations to avoid their policies through forfeiture clauses, I find no case in which they have made a new or different contract from that which was entered into between the parties. This is not the case of an insurance company avoiding its policy. It is an effort to make it liable under conditions which it was agreed should not constitute a liability.’ ”

The identical question presented by plaintiff’s second contention was decided adversely thereto in Taylor v. Latin-American Life & Casualty Insurance Co., 152 La. 740, 741, 94 So. 375, where the policy sued upon contained the following language:

“This policy, if void for non-payment of premiums due, shall be deemed to have 'lapsed at the noon hour, central standard time, on the day when said premium became past due, but may be conditionally revived upen proper application and the payment of all revival arrears, but only to include or cover the effects of such injury or disease as shall be received or contracted after the expiration of the revival period of twenty-eight days, beginning at the noon hour, central standard time, of the day said application and revival arrears shall be received by an officer of the company, at the home office. * * *”

The court held:

“Plaintiff, however, contends that defendant is estopped to deny liability under the policy, because not only did the latter accept the premiums, mentioned, but on other occasions, after the policy had lapsed, accepted those then due and in arrears, and that the effect of its having done so was to keep the policy, so long as there were no premiums due and unpaid, in full force and effect, in every particular, as if it had never lapsed.
“We think, however, that the payments must be deemed to have been made and accepted under those provisions, of the policy relating to reinstatement. By accepting them, defendant did not give the insured to understand that the 28-day period was waived. In the absence of anything to the contrary, the insured was justified only in believing that the payments were accepted under the terms of the policy, which fixed the effect of receiving them.”

The doctrine of Taylor v. Latin-American Life & Casualty Insurance Co., supra, is followed unanimously by the courts of all American jurisdictions. See, to this effect, American National Insurance Co. v. Gallimore (Tex. Civ. App.) 166 S. W. 17; Honea v. American Council, No. 27, J. O. U. A. M., 139 Term. 21, 201 S. W. 127; Bienhoff v. North American Insurance Co., 153 Minn. 241, 190 N. W. 63; Ward v. Merchants’ Life & Casualty Co., 139 Minn. 262, 166 N. W. 221; Hope v. Travelers’ Protective Association, 130 S. C. 381, 126 S. E. 45; O’Brien v. Brotherhood of the Union, 76 Conn. 52, 55 A. 577; Greenwaldt v. United States Health & Accident Insurance Co., 52 Misc. Rep. 353, 102 N. Y. S. 157; Alters v. Journeyman Bricklayers’ Protective Association, 43 Wkly. Notes Cas. (Pa.) 336; Union Central Relief Association v. Thomas, 213 Ala. 666, 106 So. 133; and Young v. Aeolian Council No. 17, 59 Pa. Super Ct. 174; Crosby v. Vermont Accident Insurance Co., 84 Vt. 510, 80 A. 817; National Life & Accident Insurance Co. v. Reams. (Tex. Civ. App.) 197 S. W. 332.

Counsel for plaintiff cites a host of cases on the trite proposition that where the insurance company, or its agents, lull the assured into a false sense of security by accepting premium in arrears, the company waives the policy provisions relative to forfeiture. Lally v. Prudential Insurance Co., 75 N. H. 188, 72 A. 208; Ballah v. Peoria, 168 Ill. App. 603; Pacific Mutual Life Ins. Co. of California v. McDowell, 42 Okl. 300, 141 P. 273, L. R. A. 1918E, 391; Boutin v. National Casualty Co., 86 Wash. 372, 150 P. 449; Dunken v. Aetna Life Insurance Co. (Tex. Civ. App.) 221 S. W. 691; Cooley’s Briefs on Insurance, vol. 5, p. 4393, par. D; Wiser v. Central Business Men’s Association (Mo. App.) 219 S. W. 102; Cooley’s. Briefs on Insurance (2d Ed.) vol. 5, p. 4383; 32 Corpus Juris, 1315, par. 565, Insurance; Elgutter v. Mutual Reserve Fund Life Ass’n, 52 La. Ann. 1733, 28 So. 289; 37 Corpus Juris, 499 (paragraph 241); Fitzgerald v. Benevolent Knights of America of Louisiana, Orleans No. 8324, unreported (see Louisiana and Southern Digests); Southern Indemnity Ass’n v. Hoffman, 16 Ala. App. 274, 77 So. 424; Graff v. Sovereign Camp, W. O. W., 1 La. App. 119; 32 Corpus. Juris, 1318, par. 569; Estoppel; Gitz Sash Factory v. Union Insurance Society, 160 La. 381, 107 So. 232; 32 Corpus Juris, 1347, paragraph 623 (Insurance); La Societe de Bienfaisanee des Arts et Metiers v. Morris, 24 La. Ann. 347; Kelly v. National Casualty Co., 9 Orl. App. 193; Butler v. People’s Fire Insurance Co., 6 Orl. App. 354; 32 Corpus Juris, par. 615 (Insurance); Continental Life Insurance Co. v. Clanton, 149 Miss. 289, 115 So. 569; Tarver v. People’s Fire Insurance Co., 6 Orl. App. 59, and cases cited therein at page 64; Howell v. Knickerbocker Life Insurance Co., 44 N. Y. 276, 4 Am. Rep. 675; Protection Life Insurance Co. v. Palmer, 81 Ill. 88; Kentucky Life Insurance Co. v. Kaufman, 102 Ky. 6, 42 S. W. 1104; Hammond v. American Mutual, 10 Gray (Mass.) 306; Michigan Mutual Life Insurance Co. v. Custer, 128 Ind. 25, 27 N. E. 124; Mutual Benevolent Life Insurance Co. v. Ruse, 8 Ga. 534; Busby v. North America Life Insurance Co., 40 Md. 572, 17 Am. Rep. 634; Wallace v. Metropolitan Life Insurance Co., 10 Ga. App. 517, 73 S. E. 698; Hartford Life & Annuity Ins. Co. v. Unsell, 144 U. S. 439, 12 S. Ct. 671, 36 L. Ed. 496; Cotton States v. Lester, 62 Ga. 247, 35 Am. Rep. 122; Spoeri v. Mass. Mut. Life Ins. Co. (C. C.) 39 F. 752; Markgraf v. Fellowship, 65 Misc. Rep. 64, etc., 119 N. Y. S. 665.

It must be remembered that there are two types of policies existent. The first, of which the policy involved in Bush v. Liberty Industrial Life Insurance Co., 15 La. App. 269, 130 So. 839, is a fair example, provides that no agent or employee of the company has any right to accept overdue premiums, but that the only procedure by which a lapsed policy may be reinstated is by submitting the policy to some designated officer of the company for revival, the indorsement of the revival on the face of the policy, and the furnishing by the applicant of a certificate of insurability of the assured prior to a revival. Hence, where time after time premiums are collected on lapsed policies, the insured is lulled into a false sense of security by being led to feel that the company will not enforce its policy provisions and therefore estoppel takes place.

The second type of policy, of which that involved in Taylor v. Latin-American Life & Casualty Insurance Co., supra, is a fair example, provides that all that is necessary to effect a revival is the payment of past-due premiums, and the effect of such revival is fixed by the terms of the policy. In this type of policy, the insured cannot be said to have been misled by the company’s acceptance of the delinquent premiums, for all that is necessary under the policy is the payment of money, and the effect of the revival' is fixed by the terms of the policy which insured is presumed by law to have knowledge of.

The distinction between the forfeiture clause cases and the suspension clause cases is that in the former the acceptance of the delinquent premium is inconsistent with the terms of the- policy, thereby resulting in a waiver or an estoppel, but in the latter the acceptance of the premiums in arrears is in accordance with and under a special clause of the policy and, therefore, waiver and estoppel cannot be said to have resulted.

Learned and diligent counsel for the plaintiff also directs our attention to the decisions of our Supreme Court, holding that, where the tenant pays the rent late on a number of occasions, contrary to the provisions of the lease, and the landlord accepts the payments without protest and objection, the lessor is estopped thereafter from claiming a forfeiture of the lease on the ground that the lessee has breached the lease by not paying the rent promptly. Saxton v. Para Rubber Co., 166 La. 308, 117 So. 235; Bonnabel v. Metairie Cypress Co., 129 La. 928, 57 So. 271; Standard Brewing Co. v. Anderson, 121 La. 936, 46 So. 926, 15 Ann. Cas. 251.

These cases are distinguishable on the same line of reasoning applied to the insurance forfeiture clause cases, the acceptance of the delinquent rent being inconsistent with the provisions of the lease, and, hence, the estoppel.

Finally, plaintiff’s attorneys say that since the policy provides for a ten-day suspension of liability after the arrear premiums are paid, that, as practically all the payments, were very late, the insured was paying for protection and not getting it, and that where the payment was twenty days later, the insured was not covered that month at all, but was required to pay the full premium. Therefore, such a clause in a policy would tend to cause the company to encourage delinquency and that such a contract is unconscionable and against public policy.

Whatever merit there may be in this contention, we feel thac it is unnecessary for us to consider, for our Supreme Court, and the several Supreme Courts rendering the decisions cited, supra, appear to have approved such a provision and, therefore, as this is not an original question, we simply follow the authorities on the subject.

From the foregoing authorities we conclude that the plea of estoppel is not well founded and that the judgment sustaining the exception of no right or cause of action and dismissing plaintiff’s suit is correct.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,883
    Orleans
    STEEG PRINTING & PUB. CO. v. AUTO-LEC STORES, INC.
    (January 11, 1932. Opinion and Decree.)

      Benjamin Y. Wolf, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for the sum of $2,736.66, the alleged balance due for printing and furnishing certain catalogues under the provisions of a written contract entered into by the parties on September 27, 1928.

The petition alleges that 326,351 catalogues were delivered to the defendant, for which there was due the sum of $14,-236.66, and that the defendant paid on account the sum of $11,500, leaving a balance of $2,736.66; that a dispute arose as to the correctness of the charges for the balance claimed and defendant declined to make further payment on account. The petition then sets forth in detail the respective items that make up the total amount claimed to be due under the contract.

The defendant answered admitting that it had entered into the contract with the plaintiff; that all the catalogues had been delivered; that a number of the items claimed, aggregating $903.47, were correct and due plaintiff, but denied the correctness of seven items claimed by the plaintiff in its petition.

There was judgment in favor of the plaintiff for the sum of $2,254.49 and defendant appealed to the Supreme Court. That court transferred the appeal to this court on the ground that it did not have jurisdiction, since the amount in dispute was less than $2,000. (Steeg Printing & Publishing Co. v. Auto-Lec Stores, Inc., 172 La. 565, 134 So. 746.) Plaintiff has answered the appeal asking that the amount of the judgment be increased to the sum of $2,686.66.

The record in this case is voluminous, involving a maze of figures and considerable conflicting testimony, but we shall endeavor to digest and present the issues in as simple and logical a form as possible.

We shall now discuss the respective disputed items according to the paragraph number given them in plaintiff’s petition.

In paragraph 17 of the petition the plaintiff claimed that it was entitled to receive for original composition $7.90 per page, and, as the catalogue contained a total of 114 pages, including the index and the covers, there was due plaintiff the sum of $900.60. Defendant claims that there were in the catalogue 112 pages, which, at $7.90 a page, amounts to $884.80, and that as it furnished certain nickel-plated plates for the purpose of printing the covers, plaintiff is not entitled to recover for them. The trial judge was convinced by the evidence that the two covers should be classified as two pages of the catalogue and allowed $7.90 each for them. The fallacy in defendant’s argument is that no allowance is made for the printing of the covers at all. The evidence shows that it took just as much effort and time to compose and.print the covers as it did to compose and print the pages and, therefore, we conclude that the trial court properly allowed the sum of $900.60.

In paragraph 18 of the petition plaintiff claims the sum of $320 for furnishing 160 electrotypes at $2 per page. Defendant resists payment of this charge on the ground that the contract provides that electros shall be charged for as follows: “Electros, $2.00 per page,” and claims that the correct charge should nave been $216, covering the final 108 printed catalogue pages. The trial court allowed the sum of $320.

What do the words “Electros, $2.00 per page” mean? Prom the testimony of Mr. Egerton, an expert in such matters, we gather that it is customary to use two or three electrotypes in printing an order of 326,000 catalogues, because they wear readily and cause the printing to become blurred, and that the number of electros used by the plaintiff was in keeping with the usual experience in fulfilling a contract of the proportions as the one under consideration. In the light of the evidence in the record as to the custom of the trade we have reached the conclusion that “Electros, $2.00 per page” means $2 per electrotype page and not $2 per printed catalogue page. We find that the sum of $320 is due.

In article 19 of the petition plaintiff claims $97 for furnishing fifteen bound copies of catalogue page proofs. This item is not covered by the contract and recovery is sought oh a quantum basis. Defendant refused to pay this claim on the ground that a charge of $50 would be adequate and reasonable. Plaintiff undertook to prove by one of its employees that it required 44.54 hours, at the original charge of $2.50 an hour, to collect and bind these fifteen copies. Defendant attacks the accuracy of the testimony of this witness on the ground that other work was done during the time that he was supposed to have worked upon these bound copies. A careful consideration of the evidence on this point leads us to believe that it required that amount of time to do this work. The only evidence offered by defendant on this issue was the testimony of Mr. Stern, who stated that the defendant had gotten bids from two other printers who bid $46 and $49, respectively, for similar work. The issue is not whether the defendant coujd have gotten the work done cheaper through competitive bidding, hut whether or net the charge that the plaintiff has made, where there was nq competitive bidding, is reasonable. The evidence supports the finding of the trial court in allowing the sum of $97 as fair and reasonable, and we see no reason to disturb it.

In article 20 of the petition the plaintiff claims the sum of $9.50 for mounting sixteen large cuts for catalogues. The only defense to this item is that these cuts were ordered through Grelle-Egerton Engraving Co., and not from the plaintiff, but the evidence shows that the plaintiff did furnish them and that a charge of $9.50 is reasonable. We note that this item is feebly contested. The trial judge allowed it and the record bears out his conclusion.

In article 21 of the petition plaintiff claims the sum of $1,243.67 for alterations and changes in composition made by defendant, alleging that it required 537.47 hours to make these changes and that it is entitled under the contract to charge $2.50 per hour therefor. Defendant denied that plaintiff was entitled to charge on the basis of changes for the services in question, but admitted that plaintiff was entitled to charge on the basis of new pages of composition at the contract price of $7.90 per page and, in addition thereto, for any changes and alterations in composition with reference to these new pages.

The record shows that the catalogue originally contemplated was to be printed in the fall of 1928. Plaintiff printed 112 pages furnished and approved by defendant and was prepared to print the catalogue in final form, but the defendant took advantage of a clause in the contract and delayed the printing of it for 120 days.

During this interim defendant desired to make such drastic alterations and changes that out of the original 112 pages only 18 were retained intact. New pages of approved composition, consisting largely of material taken from the original 112 pages, were furnished hy defendant amounting to 86 pages. These 86 pages, together with the 18 ¡pages of the originally contemplated catalogue, amounted to 104 printed pages, and constituted the catalogue which plaintiff printed in final form for defendant in the spring of 1929.

It further appears that defendant had the right to compose as many new pages as it desired and to pay for them at the rate of $7.90 per page, as ¡provided in the contract and also the right to discard as many pages as it wished and to have the accepted pages combined into a catalogue. Mr. Steeg, the president of plaintiff company, admits that plaintiff was obliged to print 96 or more new pages with the maximum number unlimited.

The modus operand! of printing the catalogue was for defendant to furnish the pages of composition. Plaintiff would then furnish defendant with a printed proof of the pages and defendant had a right to make such changes and alterations in the proof as it desired and return the corrected pages to the plaintiff, and a second proof was run off. This proof was then submitted to defendant for approval and, upon it being approved and returned to plaintiff, it was considered to be in final form for ¡printing.

There is no doubt that plaintiff was entitled to charge $7.90 per page for this work and, in addition thereto, for the number of hours it took to make the changes and alterations, at the rate of $2.50 per hour. But the controversy in reference to this subject is whether or not plaintiff is entitled to charge defendant, not only $7.90 per page for the original pages included in the 112-page catalogue, and for its time consumed in making such changes and alterations that defendant requested, but, in addition thereto, to charge defendant with reference to the 104-page catalogue on the basis of $2.50 per hour, since the second catalogue was composed in a large measure from the pages of the original catalogue.

It is clear that, if plaintiff charges for the 104-ipage catalogue on the basis of $7.90 per page as new pages, and for corrections thereto made at defendant’s request, the bill would be considerably less than if it is to be calculated under the provision of the contract giving a right to plaintiff to charge $2.50 per hour for corrections and changes. The relevant clauses of the contract read as follows:

“Price: Composition, Seven Dollars Ninety Cents per page * *
“Changes and Corrections: All changes and corrections in composition made by you will be charged for at the rate of Two Dollars and Fifty Cents per hour.”

The issue being which clause was applicable, expert testimony was offered by both sides to show the custom of the trade with reference to matters of this kind. The testimony of the experts is conflicting, those testifying for plaintiff being of an opinion favorable to its contention, and those appearing for defendant upholding its position. But Mr. William Pfaff, an expert for plaintiff, testified in effect that it was his appreciation and understanding of the custom of the trade that the charge should be based on $7.90 per page for new pages and, in addition thereto, for any corrections and changes that might be made with reference to these new pages. These charges were to be, in addition to the charge of $7.90 per page for the 112-page catalogue, plus, of course, any corrections made thereto.

The judge a quo accepted the defendant’s contention as sound and allowed for 104 pages at $7.90 per page, or $821.60 and, in addition thereto, for the alterations and changes, 100.92 hours at $2.50 per hour, or $252.30, making a total of $1,-073.90.

But after carefully considering the record, we have reached the conclusion that the trial court fell into error in allowing for 104 pages for the new catalogue, because 18 pages of that catalogue werb taken from the 112-page catalogue intact, and for which the district judge and we have already allowed the plaintiff to recover under paragraph 17 of the petition. Consequently, these 18 pages should be deducted from the 104-page catalogue and plaintiff would therefore be entitled to recover for 86 pages at the rate of $7.90 per page, or $679.40.

Counsel for defendant questions the correctness of the finding of the trial judge that 100.92 hours were spent in making the changes and corrections and argues tha the evidence does not justify an allowance of more than 64.73 hours. This contention is predicated upon the ground that defendant considers the testimony of Mr. Massavich, an employee of and witness for plaintiff, unreliable. Mr. Stern, a witness for defendant, testified that he made a compilation of the records furnished him by Mr. Massavich and that it showed a total of 74.24 hours.

The issue presented is one of fact, involving the credibility of the witness. The trial judge, who heard and saw the witness, was impressed by the statements furnished by him and his testimony, and we are unable to say that he was in error in accepting these statements and believing him. The trial court’s finding of 100.92 hours at the rate of $2.50 per hour, or $252.30 for alterations and changes is, therefore, approved. But, due to the error of the trial judge in allowing for the 18 pages twice, we have deducted that amount and, therefore, reduced the amount of $1,073.90 to $931.70, and this item, as thus amended, is affirmed.

In paragraph 31 of the petition plaintiff claims the sum of $62.40 for storage charges on 104 pages of electrotypes from October 31, 1920, to December 31, 1929, at $0.20 per page. This charge is not covered in the original contract, but is claimed on a quantum meruit. The trial court disallowed this item and the appellee, in its answer to the appeal, asked that the amount be allowed.

From a reading of the contract it clearly appears that such a storage charge was not contemplated by the parties and that the plaintiff, in printing such a volume of catalogues and fulfilling its contract, would have to keep on its premises electrotypes for some considerable period of time. Furthermore, Mr. Stern, president of defendant company, testified that Mr. Steeg, president of plaintiff company, told him that there would be no charge for permitting: these electrotypes to remain in plaintiff’s place of business. His testimony on this point is undisputed and uncontradicted and,1 since plaintiff bore the burden of establishing clearly its claim, we are of the opinion that it has failed to do so.

Article 32. Under this article of the petition the plaintiff alleges that, by virtue of the provisions of the contract, it had until August 5, 1929, to deliver the catalogues, but delivered them on July 10, 1929, which exclusive of Sundays and holidays, would be twenty-one days ahead of the required delivery dates, and that, under the provisions of the contract, plaintiff was entitled to the sum of $50 per day as a bonus for each and every working day that the said deliveries antedated the date of delivery fixed by the contract, representing the sum of $1,050.

The defendant resists payment of the bonus on the ground, first, that the contract itself does not contemplate the payment of a bonus for anticipating the delivery of the new catalogue, or demurrage for delaying it, because it does not fix any date which shall be deemed the date of the final O. K. of proof, as was done in the case of the original catalogue, where October 28th was fixed as the date of final approval;

Second, that it was not contemplated by the parties that either the bonus or demur-rage features should apply to the new catalogue, as is evidenced by their behavi- or in that the plaintiff delayed the work, did not compose ten pages a day, and did not return the proofs within forty-eight hours, as required by the provisions of the contract, and in that the defendant permitted plaintiff to violate the contract in the above respects without making any claim for penalty for demurrage;

Third, that the bonus should not be allowed because the plaintiff deliberately delayed certain parts of the work while it was printing up the biggest part of the catalogue, so that, when the final O. K. of the proof was given, plaintiff would be in a position to complete the catalogue within a few days and then claim a bonus, and that this amounted to perpetrating a fraud on the defendant;

Finally, in the alternative, that Saturday should be considered as a full day in computing the days that the deliveries antedated the time provided in the contract.

In the contract, under the heading of demurrage and bonus, we find the following provisions:

“In the event that the Steeg Printing & Publishing Company shall fail to make deliveries as per agreement hereinabove set forth they shall pay, by way of liquidated damages, the sum of Fifty and no/100 ($50.00) Dollars per day for each and every day thereafter that the said deliveries shall remain incomplete, and in the event that the Steeg Printing & Publishing Company shall complete deliveries prior to the delivery dates, then the said Auto Lee Stores, Inc. agree to pay to the said Steeg Printing & Publishing Company Fifty and no/100 ($50.00) Dollars per day as a bonus for each and every day that the said deliveries shall antedate the date of deliveries as fixed by said contract.”

We also find the following provision in the contract with reference to deliveries:

“One hundred thousand catalogues to be delivered 30 working days after final O. K. of proofs and ten thousand daily thereafter, exclusive of Sundays and legal holidays.”

It is undisputed that the final O. K. of proofs was furnished by the defendant to the plaintiff on May 30, 1929, and that the final lot of the catalogues was delivered to the defendant on July 10, 1929.

It is clear from the record that the plaintiff has made out a prima facie case entitling it to the bonus, unless it can be said that the defenses urged by the defendant are good.

Turning our attention to these defenses in the order above stated, we observe that the original contract between the parties was the agreement under which the catalogues were finally printed and delivered to the defendant. The provisions of this contract were carried out in toto, with neither party objecting to any of the provisions contained in it. The delay of 120 days, which the defendant requested, was in accordance with an express provision in the contract, so that it cannot be said that it was the intention of the parties to abandon the contract, or any part thereof. While it is true that no definite date was substituted for October 28th, the date fixing the time limit for final approval by defendant, nevertheless the provision “100,-000 catalogues to be delivered 30 working days after final O. K. of proofs and 10,000 daily thereafter, exclusive of Sundays and legal holidays” remained in the contract. In accordance with this provision of the contract the defendant finally O. K.’d the proofs on May 30, 1929, and the plaintiff then made deliveries of all of the catalogues by July 10, 1929. Counsel for defendant has failed to impress us that the parties (practically abandoned these provisions of the contract and, therefore, we have reached the conclusion that the defendant’s first contention is untenable.

Taking up the second defense, the record shows that both parties to the contract caused some delay with reference to the printing of the catalogues up to the time of the final O. K. on May 30, 1929. The defendant was guilty of delaying the furnishing of the composition to the plaintiff in order that the proofs might be printed, and the plaintiff was not complying with the provision of the contract requiring it to compose ten pages a day and return the .proofs within forty-eight hours. It also appears that both parties were lenient and indulgent to each other in respect to these delinquencies. While it may be true that the officers of the defendant company did not feel that the bonus or demurrage features of the contract were in existence, nevertheless there was nothing done by either party which would indicate an intention of waiving their respective rights under the clauses of the contract. Hence we are forced to the conclusion, as the trial judge was, that the parties were bound by their agreement in this respect.

In reference to the third defense there is nothing in the record to justify us in holding that the plaintiff was guilty of fraudulent conduct in printing large portions of the catalogues in final form, while other preliminary matters were pending with reference to other pages of the catalogue. The record does show that a considerable portion of the catalogue was being printed in final form, while the composition for new pages and proofs thereof were being mutually delayed by both parties, but without any protest from eithér side. It was only after the final O. K. on May 30, 1929, that the plaintiff rushed the completion of the catalogues and the deliveries thereof. In fact, since two officials of the defendant company testified they knew that the plaintiff was printing portions of the catalogue in final form, before the final O. K., it is difficult for us to realize how the defendant could consider that it was being defrauded when its officers had knowledge of what was going on. Their feeling that plaintiff would not invoke the bonus clause was unwarranted.

Under the fourth contention the plaintiff claims that Saturday should be considered one-half working day and one-half holiday under the provisions of the contract and under Act 49 of 1928. Defendant contends that Saturday should be counted as a full or working day.

Section 1 of Act 49 of 1928 clearly provides that Saturday shall be a half-holiday in the city of New Orleans, but, while it is true that Saturday is designated as a half-holiday under the above act, can it be said that Saturday is not a full or working day within the meaning and intention of the parties when they placed the clause in the contract governing the time for making deliveries of the catalogues?

A provision for demurrage or a bonus is in the nature of a penalty, or award, respectively, and in such instances the language of the clause should be strictly construed against the party claiming under it. In short, the one making the claim should clearly show that the construction he contends for was the real intention of the parties and that he clearly comes within the provisions of the clause invoked. From a careful reading of the record we have reached the conclusion, as did our learned brother below, that it was not the intention of the' parties to consider Saturday a half-holiday, but a full or working day. Consequently, the plaintiff’s contention that it is entitled to twenty days is erroneous, because in its computation it considers Saturday a half working and half holiday. Counting Saturday as a full working day, plaintiff would be entitled to sixteen days, at $50 iper day, or $800, as found by the trial court.

For the reasons assigned it is ordered, adjudged, and decreed, that the judgment of the district court be amended by reducing the amount allowed from the sum of $2,254 49 to the sum of $2,112.29, and, as thus amended, it is affirmed.


author: STEPHENS, J. DREW, J.

text:
    No. 3624
    Second Circuit (Second Division)
    JACKSON v. HARRIS ET AL.
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Granted.)

      Craig, Bolin & Magee, of Mansfield, attorneys for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendants, appellants.
   STEPHENS, J.

The plaintiff alleges that he is the owner of a certain described forty acres of land, and that he purchased said property from N. M. Hale on October 1, 1925, for $600; that N. M. Hale executed and delivered to plaintiff a receipt for said sum, which reads as follows:

“Benson, La. Oct. 25th/25
“Received from Archie Jackson in full payment of land ($600.) Six Hundred Dollars.
“To (signed) N. M. Hale.”

He further alleges that he went into possession of the property immediately after his purchase, and has remained in continuous, uninterrupted possession thereof until the present time; that the defendants are slandéríng his title by claiming the ownership thereof under a partition proceedings, and by executing a deed of sale purporting to convey the timber; and further by threatening to sue him for rent of the land.

The plaintiff prays that his title be recognized, and that the said act of partition be held as without effect, against him; and that the act of sale purporting to convey the timber be decreed a simulation; and that he have judgment for $250 damages for slander of his title.

Defendants answered and denied generally the allegations of plaintiff’s petition, except that they admitted having partitioned the property, and having sold the timber thereon as alleged; and assuming the position of plaintiff in reconvention, they ,pray for judgment for the use and occupancy of eleven acres of the property in question for the years 1927 and 1928, in the sum of $5 per acre, or $110.

The trial of the case resulted in a judgment recognizing the plaintiff as the owner of the property in question, less the minerals under said land. The defendants have appealed and plaintiff has answered the appeal, praying that the judgment of the lower court be amended so as to recognize him as owner of the land and minerals.

Subject to the objection of counsel for the defendants that parol evidence is inadmissible to establish title to real estate; and that the description of the property in the receipt as “land” is too vague, indefinite, and lacking in the essentials as to identity to admit of extrinsic evidence in aid thereof, the following facts were developed on the trial of the case:

The plaintiff approached Mrs. Best, the owner of the property, the title of which is in dispute, with the view of purchasing it on credit. Mrs. Best would not agree to sell on terms of credit, but conveyed the property to her uncle, N. M. Hale, with the verbal understanding that when plaintiff paid the purchase price of $600 to Mr. Hale he would transfer him the land. The purchase price was paid and the receipt, as above shown, was given the plaintiff, and he entered into the immediate possession of the property. He fenced and cultivated eleven acres of the land during the years 1927 and 1928, and cut ties on the unfenced portion thereof from time to time. Hale recognized the ownership of plaintiff and expressed the intention of deeding him the land; during his last illness he told Mrs. Best that the land should not be considered a portion of his estate in the event of his death. He died before executing the deed, and his succession, which included the property here in question, was accepted by his heirs, the defendants, and they were sent into possession of the same. There was no other transaction at any time between the plaintiff and Mr. Hale in which land was involved.

It is apparent that if the parol widen ce is admissible that discloses the state of facts thus related, the plaintiff should recover; but if the evidence should have been excluded and the plaintiff is left standing upon the naked receipt, we are of the opinion that his case must fall.

A receipt has been held to be sufficient evidence qf the transfer of title to real estate. In the case of Barfield v. Saunders, 116 La. 136, 40 So. 593, 594, Barfield recovered upon a receipt which read as follows:

“This note goes as a payment on the Prudhomme Place, leaving four more notes, for Pour Hundred Dollars ($400.00) eacn, with interest from October the 1st, 1901, due 1903, 1904, 1905, and 1906.
“(Signed) C. W. Blair.”

It will be noted that the property was described in the receipt as the “Prudhomme place.” The sufficiency of the description was not in question. It is well established that property can be transferred by a well-known name.

It was stated in the case of Phelan v. Wilson, 114 La. 823, 38 So. 570, 573, upon the authority of a long list of cited cases, that: “The description of a residence or plantation by name and locality is sufficient.”

There is nothing in the receipt relied on in the instant case which is descriptive of the property alleged to have been conveyed. No well-known name of the land is given, nor is it located in or prescribed by the boundaries of any political subdivision. In so far as the description is concerned, the property alleged to have been conveyed may have been land of any number of acres, located anywhere. If the court should hold that the plaintiff is entitled to recover the land in controversy, it must receive parol evidence both to describe the land, and to apply the description to it. Such use of parol evidence would be violative of article 2275 of the Civil Code, which requires that every transfer of immovable property must be in writing.

The rule in Louisiana with reference to the sufficiency of descriptions in instruments transferring real property, and limiting the use of extrinsic evidence in aid of such descriptions, is found in the ease of Kernan v. Baham et al., 45 La. Ann. 799, 13 So. 155, and reads as follows:

“Parol evidence to establish identity is allowable, as is, likewise, parol evidence of possession in aid of a defective or ambiguous description of land, in an act of sale, but this is only where there is a sufficient body in the description to leave the title resting substantially on writing, and not essentially on parol. A written title, with a reasonable degree of certainty of description, has to be produced.”

The property attempted to be conveyed in Kernan v. Baham et al. was described as “certain lands in St. Tammany parish, sold that day by the bank to said Baham.” : In excluding iparol evidence to identify the property, the court used the following language:

“The writings which defendants present as establishing their title are not only insufficient per se for that purpose, but they - are so defective as not to serve as a basis • upon which a title could be built up or eked out by parol. The declaration that the promissory note was given as ‘the price of certain lands in the parish of St. Tammany’ is entirely too general to justify the admission of parol evidence to establish possession of particular property by the party named in the instrument as the vendee, and from such possession to assume or infer it to be that referred to in the writing.”

In said case claimants under the defective instrument were in possession of the property as in the instant case; and there was no question presented as to the rights of third persons relying on the face of the public records, and there is no such question here.

We find the following in 8 R. C. L., verbo, Deeds, sec. 125, page 1072:

“Generally, if the description of the land intended to be embraced and the titie thereto conveyed by the deed, is so indefinite or uncertain that it fails to designate or identify the land meant, the deed is inoperative; for a deed, to be valid on its face, requires not only a grantor and a grantee, but also a thing granted, and if the description is too indefinite to convey anything, then the paper on its face lacks one of the essential elements of a conveyance, for it is essential to the validity of a grant that the thing granted should be so described as to be capable of being distinguished from other things of the same kind. Hence a deed which conveys no particular spot of ground can transfer no title.”

There are numerous cases in the Louisiana jurisprudence which support the rule as thus quoted,, but in most instances the question presented was the sufficiency of. the description with respect to third persons.

The cases relied on by the plaintiff, none of which support his contention that the description in a transfer of immovable property may be completely supplied by parol, are as follows: Moore v. Hampton et al., 3 La. Ann. 192; Young v. Guess & Swanson, 115 La. 230, 38 So. 975, 976; Cousin v. Schmidt et al., 143 La. 843, 79 So. 427, 428; Da Ponte v. Ogden et ah, 161 La. 378, 108 So. 777.

In the first of these cases there was an indefinite, and ambiguous description in the instrument in question. The court permitted parol evidence for the purpose of applying the description in the instrument to the land. In the instant case there is no description to apply to the land. In the cited case the court said:

■ “The evidence adduced for the purpose of identifying the thing sold, explains and elucidates the title, and goes neither against -nor beyond it. The facts it establishes are analogous to those of extent and boundary.”

In Young v. Guess & Swanson, the subject of the sale was described as a sawmill, lands, leases, etc., owned by the Dixie Saw Mill Company, the vendor. The description “Dixie Saw Mill” falls under the well-known name rule. The court, however, in keeping, we think, with the rule in Kernan v Baham, held:

“It was proper to admit the testimony of witnesses to prove what property had been delivered to the buyer, and to explain the ambiguous and insufficient clauses of this deed, intended to be descriptive of the property transferred.”

The' case of Cousin v. Schmidt et al. is not in point for the reason that there was no issue before the court upon the question of the identity of the land which was indefinitely described in the document evidencing the transfer. The court did state in the syllabus, notwithstanding this fact

“A written receipt for money paid on account for the ‘purchase price’ of land, imperfectly described, may be supplemented by parol evidence identifying the land and establishing the amount agreed on as the price.”

This statement of the law in no way conflicts with the rule in Kernan v. Ba-ham.

In the last-cited case, Da Ponte v. Ogden et al., parol evidence was not relied on to supply a description of the property in the agreement of sale. On page 389 of 161 La., 108 So. 777, 781, we find the following in the opinion of the court:

“The parol evidence went no further, or at least was only necessary to show the existence and nature of the consideration of the agreement to sell and to buy. For this purpose the said parol evidence was admissible.”

The rule as stated in Kernan v. Baham is the rule which prevails, with slight modifications, throughout the United States. Excerpts from the following cases are illustrative of this conclusion:

“Parol evidence is admissible to apply the description of property given in a memorandum of sale, if it be definite, to the premises conveyed, if such identification can be made with reasonable certainty; but the memorandum should contain a sufficient description to evidence a common intent of the parties to deal with respect to a particular piece of property, as distinguished from other property.” Gendelman v. Mongillo, 96 Conn. 541, 114 A. 914, 915.
“Plaintiff telegraphed defendant, ‘I will give you two thousand dollars for your lot, if accepted to-night,’ and defendant replied, ‘Will accept your offer.’ Held, that the description, ‘your lot,’ was too indefinite to admit of parol evidence to identify the land in a suit for specific performance.” Farthing v. Rochelle, 131 N. C. 563, 43 S. E. 1.

In an action to compel specific performance of a contract to convey land, “where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible, but that the court will never receive parol evidence both to describe the land, and then apply the description.” Ferguson v. Blackwell, 8 Okl. 489, 58 P. 647, 649.

“Location of land may be designated by extrinsic proof, when description affords means of positive identification.” Wilson v. Calhoun, 157 Tenn. 667, 11 S. W. (2d) 906.

“Description not identifying land conveyed so as to permit location thereof cannot be aided by extrinsic evidence.” Jamison v. Wells (Mo. Sup.) 7 S. W. (2d) 347.

Of course, we feel the urge to brush aside all considerations save those of equity, and adjudge the property to be that of plaintiff, but we are not only constrained from such a course by an established jurisprudence, but by the possible consequences of such a precedent. The rule that every transfer of immovable property must be in writing was established by the legislature to prevent the perpetration of fraud. If it should be held that the identity of the immovable subject of a transfer might be wholly shown by extrinsic evidence it would defeat the purpose of the statute and invite rather than avert fraudulent transactions involving real estate. The enforcement of the rule that there should be sufficient body in the description of immovable property to leave the title resting substantially on writing and not essentially on parol may work a hardship occasionally, as in the instant case; nevertheless, it is clearly qur duty to enforce it.

In our opinion the parol evidence, admitted subject to the objection of the counsel for the defendants, should have been ex eluded, and that the receipt offered by plaintiff as a basis for title is inoperative as a transfer of the property in dispute.

Plaintiff did not sue in the alternative for the recovery of the money paid' for the land, so we are not in a position to grant him any relief in that respect.

The evidence shows that the eleven acres of land which were fenced and cultivated by the plaintiff were worth $3 per year for rental purposes. It was occupied and cultivated by the plaintiff during the years 1927 and 1928. Defendants should therefore recover qn their reconventional demand the sum of $66.

For the reasons assigned, the judgment herein rendered is annulled, avoided, and reversed, and it is now ordered, adjudged and decreed that there be judgment rejecting plaintiff’s demands; and further judgment in favor of the defendants and against the plaintiff in the sum of $66 with legal interest from judicial demand until paid, and all costs.

ON REHEARING

DREW, J.

Plaintiff alleged ownership of a certain 40-acre tract of land and the possession of same,' and alleged that defendants were slandering his title by having sold timber on the land and claiming ownership by virtue of a partition proceeding, and further, by threatening to sue him for the rent of said land. He prayed that his title be recognized, that the act of partition be held as without effect as to him and for the timber sale to be held a simulation, and further, for damages in the sum of $250 for slander of title.

Defendants answered denying the allegations of the petition in main, admitting the sale of the timber and having partitioned the land, and in- reconvention they pray for judgment for the use of the land by plaintiff during the years 1927 and 1928 in the sum of $5 per acre, or $110.

The trial of the case in the lower court resulted in judgment recognizing plaintiff as the owner of the land in question, less the mineral rights thereunder. Defendants appealed and plaintiff answered the appeal praying that' the judgment of the lower court be amended by decreeing him tbe owner of tbe land and minerals.

This court on tbe 16th day of July, 1931, rendered judgment reversing the judgment of the lower court, rejecting the demands of plaintiff and rendering judgment in favor of the defendants and against the plaintiff on the reconventional demand in the sum of $66, with legal interest from judicial demand until paid.

Plaintiff applied for a rehearing on that part of the judgment of this court wherein there was judgment for defendants on the reconventional demand and a rehearing was granted on that question alone.

The only question to determine is: Was plaintiff in legal, good faith or not? Plaintiff’s claim of ownership of the land in controversy was based on the following:

“Benson, La., October 25, 1925.
"Received from Archie Jackson in full payment on land ($600.00) Six Hundred Dollars
“to N. M. Hale."

It is apparent on the very face of the above instrument that it did not convey title to plaintiff of the land he claims to have possessed as owner in good faith. The above instrument was not sufficient in terms to transfer the property claimed by plaintiff, although the signer of said instrument had good title to the land and plaintiff could not have had the benefit of the ten-year prescription under said instrument. Article 503 of the Revised Civil Code defines a bona fide possessor as one “who possesses as owner by virtue of an act [meaning a title] sufficient in terms to transfer property, the defects of which [title] he was ignorant of.” Land Development Co. v. Schulz, 169 La. 1, 124 So. 125.

A person cannot have just reason to believe himself the master of a thing who possesses by virtue of a title defective on its face. Ignorance of the fact that the vendor was not the true owner under a title on its face translative of property would be a possessor in good faith, but ignorance of the law that the title is defective when the title deed is defective on its face is not possession in legal good faith. McDade v. Bossier Levee Bd., 109 La. 625, 33 So. 628; Heirs of Dohan v. Murdock, 41 La. Ann. 494, 6 So. 131; Wells v. Blackman, 121 La. 394, 46 So. 437; Jackson v. Shaw, 151 La. 795, 92 So. 339; Industrial Lumber Co. v. Fargue, 162 La. 793, 111 So. 166; Land Dev. Co. v. Schulz, 169 La. 1, 124 So. 125.

Plaintiff relies on the case of Miller v. Shumaker, 42 La. Ann. 398, 7 So. 456, 457. This case is not in point. In that case the husband went into possession of certain property belonging tq his wife, which had been left to him by her under a will. The will was declared a nullity for the reason that it did not show on its face that it' was written by the notary public. The court held that the husband did not owe rents and revenues because he was a possessor in good faith believing himself to be master of the thing under the will. The court in that case said:

“The defendant was in possession of the property, not merely by virtue of the will by which it was bequeathed to him, but of a judicial decree, which ordered ‘that its provisions be executed.’ Neither the will, nor the decree made to carry it out, were absolute nullities; for their validity could have been acquiesced in, expressly or impliedly, as being in favor of private individuals.
“By the lapse of time, five years (Rev. Civil Code, art. 3542), an action to annul it would have been barred.”

He also relies on the case of Pecot v. Prevost, 117 La. 765, 42 So. 263. A careful reading of that case will disclose that the defendant held the property under a title correctly describing the property and without any defects apparent on its face (see page 775, last paragraph, first column of 117, La., 42 So. 266).

Davis et al. v. Moore, 156 La. 488, 100 So. 691, relied upon by plaintiff, is not in point. The suit was one of boundary in which the boundary had never been fixed.

Land Development Co. v. Schulz, 169 La. 1, 124 So. 125, we think holds to the view we have expressed in this opinion, and Glass v. Ives, 169.La. 809, 126 So. 69, cited by plaintiff, is not in point. Defendant in the latter case was held to be the true owner of the property, and the court said:

“Civ. Code arts. 508 and 3453, pertaining to the rights of a possessor in good faith when evicted by the true owner of the property, held inapplicable where the possessor was evicted by holder of mortgage recorded previous to the possessor’s acquiring title to the property.”

In this case there was much parol testimony offered over objection of counsel for defendant to prove title in plaintiff, and this court held it was not admissible for that purpose. It might, however, be admissible on the question of good faith of the plaintiff, and, if so considered, it clearly shows by the testimony of plaintiff himself that he knew at the time he took the receipt relied upon by him to make out his title, that he was not receiving a deed, but was promised a deed to the property in dispute at a later date. If ignorance of the law could be an excuse, it would be of no aid to plaintiff, for he actually knew he did not have a title (deed) to the property.

We find no error in the former judgment of this court, and it is therefore ordered, adjudged, and decreed that the same be reinstated.


author: WESTERFIELD, J.

text:
    No. 14,043
    Orleans
    HARRY B. LOEB PIANO CO. v. KESSLER
    (January 11, 1932. Opinion and Decree.)
    (January 25, 1932. Rehearing Refused.)
    Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Prowell, McBride & Ray and Welton P. Mouton, of New Orleans, attorneys for defendant, appellant.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Plaintiff and appellee moves to dismiss this appeal upon the ground that no appeal lies from a judgment referring a rule to dissolve a writ of sequestration to the merits, and upon the further ground that the judgment appealed from is interlocutory and irreparable injury is not alleged in the motion of appeal.

It appears from the record that plaintiff, claiming to be the owner of a certain R. C. A. radio of the value of $200, caused the instrument to be sequestered in the hands of the defendant, John Kessler. The ownership of the radio is based upon an instrument in writing purporting to lease the radio to Mrs. Margaret Kessler, defendant’s mother. Mrs. Kessler intervened, alleging that she was the owner of the radio upon the ground that the alleged lease of the instrument was, in reality, a sale. The defendant, John Kessler, moved to dissolve the sequestration on the ground that the plaintiff’s petition disclosed no cause or right of action, and asked for $50 as attorney’s fees.

The trial judge referred the rule to dissolve to the merits. It is from this judgment that this appeal was prosecuted.

In the old case of Debaillon v. Ponsony, 5 Mart. (N. S.) 42, it was held that an appeal would lie “from a refusal of the judge a quo to set aside a writ of sequestration.” Lecesne v. Cottin, 10 Mart (O.S.) 174.

“* * * To entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury be absolutely irreparable. It suffices that' it may become irreparable by the final judgment or action of the Supreme Court on that judgment.” Katz & Barnett v. Sorsby, 34 La. Ann. 588.

“We think the correct doctrine on this subject is stated by this court in Hyde v. Jenhins, 6 La. 427, to the effect that, to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury be absolutely irreparable. * * * If this final decree can not replace the party in the advantageous position which he occupied before the interlocutory judgment, the injury is irreparable.” State ex rel. Cole v. Judge of Fifth Judicial District, 29 La. Ann. 803.

“That said order or decree may cause appellants irreparable injury is possibly not apparent on the face of the record, but, as an appeal is a remedy that is favored in law, we prefer in a case of doubt, rather to sustain than deny the right.” Succession of Bothick, 52 La. Ann. 1863, 1865, 28 So. 458, 459.

The cases cited appear to us clearly to warrant our refusal to dismiss the appeal, but, were we in doubt, the appeal should be maintained, because of the favor with which the law regards appeals.

For the reasons assigned, the motion to dismiss the appeal is denied.


author: STEPHENS, J.

text:
    No. 3063
    Second Circuit
    SIMMONS v. GREEN ET AL.
    (January 14, 1932. Opinion and Decree.)

      P. E. Brown, of Arcadia, attorney for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellees.
   STEPHENS, J.

The plaintiff, W. W. Simmons, sues the defendants D. M. Green and Prank Kettler as makers of a promissory note for the sum of $134.04, dated September 8, 1926,- and alleged to be due and payable October 20, 1926. The note is alleged to represent the balance due plaintiff on the purchase price of a truck which he sold to the defendants. The plaintiff, asserting the existence of a vendor’s lien and privilege on said truck, has caused its seizure under a writ of sequestration.

The defendants answered admitting the execution of the note sued on, and that it represents the balance due plaintiff on the transaction as alleged, but aver that it was due and payable on October 20, 1929; and tnat without their knowledge or consent it was materially altered by the plaintiff by his changing the due date from October 20, 1929, to October 20, 1926, and for which reason the said note is avoided, and that they owe plaintiff nothing on account thereof. The defendants pray for the rejection of plaintiff’s demands, and that they be awarded damages in the sum of $100 for the wrongful and illegal seizure of the truck.

A trial in the district court resulted in a judgment rejecting plaintiff’s, demands and dissolving the writs of sequestration without damages. The plaintiff alone has appealed, and the defendants have not answered the appeal.

The sole question therefore which is presented to the court for determination is whether the note was materially altered under circumstances which would avoid it.

The pertinent facts-whieh were developed on the trial of the case were as follows:

The note was drawn by W. S. Montgomery, a stranger with reference to the instrument. At the time of its execution, the due date was written October 20, 1929. The due date was changed to read October 20, 1926, without the knowledge or consent of the defendants. The change was not made by Montgomery.

We conclude from these undisputed facts, and others disclosed by the record, that the due date was written October 20, 1929, by Montgomery, through error, and that the alteration was made by plaintiff (the note being in no one’s possession except his and Montgomery’s after its execution) in good faith and for the purpose of correcting the instrument to conform to the true intent of the parties.

“Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided,- except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.” Act No. 64 of 1904, sec. 124.

A negotiable instrument is materially altered if the time or place of payment be changed. Act No. 64 of 1904, sec. 125.

As the time of payment was. changed without the assent of the makers of the note, the alteration falls clearly within the definition of the statute of a material alteration, which operates an avoidance of the instrument. The note sued on therefore has been rendered inoperative against the defendants, unless it be held that, as the alteration was made without fraudulent intent, but in good faith, and solely for the purpose of correcting the instrument to conform to the intent of the parties, its validity has been thereby preserved.

In the case of Alford v. Delatte et al.160 La. 712, 107 So. 500, it was held that, where the father, Ramie Delatte, signed blank notes payable to the Louisiana National Bank (the name of the bank was printed on -the note as payee) for the accommodation of his son Alcide Delatte, a substitution by the son without the father’s consent of an individual as payee, was such a material change as to avoid the instrument as to the father.

In the cited case, the good faith and honest intent of the son was unquestioned. He merely made the change in the payee for his own convenience.

It is the obvious, purpose of the statute to preserve the integrity of negotiable instruments, and to enjoin the highest care upon the holders thereof, and to penalize them with loss if any material alteration results from their conduct, be it negligent or fraudulent. It is our opinion that the statute should be strictly enforced, and that, if a negotiable instrument is materially altered, it is avoided regardless of the intent of the party making it.

All of the authorities are not in accord on the question; but thé rule as stated in 1 R. C. L. “Alteration of Instruments,” sec. 28, we believe, is supported by the weight of authority in the United States. It is as follows:

“It may be stated as the general rule that the intent or motive with which an alteration in an instrument was. made is entirely immaterial, so far at least as the effect upon the instrument itself and upon the rights evidenced by it is concerned. A material alteration of an instrument by a party thereto will vitiate it, though made with no fraudulent intent whatever and with an entirely honest motive. It is not because the thing done is actual fraud, but because a contrary rule would open the door for fraud, and because the alteration changes the legal identity of the paper and causes, it to speak a language differing in legal effect from that which it originally spoke, a result which would ensue however pure the intent with which the alteration was made, that the law holds the instrument to be nuli and void.”

However, we are of the opinion that the intent of the party making the alteration has a very material bearing upon his right to recover upon the consideration for which the vitiated instrument was given. If the alteration be made with fraudulent intent, recovery on the original consideration should not be permitted; but, if the alteration be made with the motive to correct the instrument in accordance with the real intention of the parties to it, the right to pursue the original consideration should be reserved.

“To allow one who has designedly made a material alteration in an instrument to recover on the original consideration would be to depart from the sound and just principle that no one shall.be permitted to take the chance of committing a - fraud without running any risk of losing by the event when it is detected. If, however, the alteration of the instrument was without fraudulent intent, while the instrument itself is, invalidated thereby, yet it is well settled that the right to recover on the original consideration remains.” 1 R. C. L. “Alteration of Instruments,” sec. 36.

It is ordered, adjudged, and decreed that the judgment appealed from be amended so as to reserve to plaintiff the right to sue for the balance due on the purchase price of the truck, and, as thus amended, it is. affirmed.


text:
    No. 3660
    Second Circuit
    KELLY SPRINGFIELD TIRE CO. v. OAKLEY ET AL.
    (January 14, 1932. Opinion and Decree.)

      P. E. Brown, .of Arcadia, attorney for plaintiff, appellant.
    Bertram P. Barnett and Ira J. McConathy, of Arcadia, attorneys for defendants, appellees.
   STEPHENS, J.

This action was instituted by plaintiff, Kelly Springfield Tire Company, a corporation, on April 12, 1929, against P. M. Oakley, and -the Rogers Service Station, a partnership, and the individual members of the partnership, G. A. Rogers and D. A. Woodard, all of Bienville parish, La.

The plaintiff alleges that it sold and delivered to P. M. Oakley, who was conducting an automobile service station, merchandise on which account there was a balance due and unpaid of $1,056.78; that said Oakley had in May or June, 1928, sold in bulk and out of the usual course of business his entire stock of goods to the Rogers Service Station, in violation of Act No. 270 of 1926, commonly known as-the “Bulk Sales Law,” and plaintiff prays for judgment against P. M. Oakley for the balance due with interest, and for judgment against -the partnership and the individual members thereof, in solido, holding them accountable for the value of the merchandise which came into their possession by virtue of the sale, and requiring the partnership to administer the property as a receiver, under the provisions of the statute above referred to.

No appearance was made by P. M. Oakley, and judgment was rendered against him on default. The individual members of the partnership appeared and excepted to the petition, in that it failed to state a cause or right of action against -them. The partnership filed a plea of prescription of one year. The exception and plea were sustained by the trial judge, and plaintiff’s suit dismissed as against the partnership and the individual members thereof, from which judgment plaintiff appeals.

The exception of no cause or right of action was founded on the proposition that the partnership had not been dissolved, and that therefore the individual members comprising it could not be sued with the partnership, and the basis of the plea of prescription was that the action against the partnership prescribed in one year from the date of the sale.

The individual members of the partnership were properly joined as parties defendant with the partnership. Key v. Box, 14 La. Ann. 497. Also E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898; American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307.

It was conceded on trial of the plea of prescription that the evidence established that the sale was made more than one year prior to the institution of this suit, and that the action was prescribed by one year. Rosenberg & Sons v. Waguespack, 167 La. 451, 119 So. 423; Armour & Co. v. Wise & McCalpin, 1 La. App. 202. But, after the trial of the plea, plaintiff moved for a new trial thereof on the ground that it had been misled by defendant relative to the date of the sale, and that it had filed suit as soon as it learned that defendant was the purchaser. A rehearing was granted, but after trial the court reinstated its former judgment.

The allegations of plaintiff’s motion for a new trial of the plea of prescription are vague, but, liberally considered, the basis of the motion is that prescription did not begin to run until plaintiff ascertained that the sale had been made or that the maxim “contra non valentem agere non currit prescripto’’ is applicable to the right of action given to creditors, under the statute.

Article 3521 of the Civil Code provides that prescription runs against all persons unless they are included in some exception established by law. The application of the maxim should be limited to the exceptions so established. Smith v. Stewart, 21 La. Ann. 67, 99 Am. Dec. 709; Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175.

If it be conceded that plaintiff was not informed or aware ’ of the date of the sale which gave rise to the action, until after the prescriptive period had elapsed, such fact would not suspend prescription, in the absence of any provision in the statute that prescription would be thus suspended. We are of the opinion that the plea of prescription was correctly sustained.

While we do not agree with the disposition by the trial judge of the exception of no cause of action filed by the individual members of the partnership, the result is not affected thereby.

The judgment appealed from is affirmed.