text:
    No 9695
    Orleans
    BARNETT, Appellant, v. WESTERN UNION TEL. CO.
    (Mar. 28, 1927. Opinion and Decree.)
    (Apr. 11, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Telegraph and Telephone Companies — Par. 11.
    It does not appear that a telegram sent from Opelousas at 9:45 and delivered at New Orleans at 10:05 constitutes such delay and negligence on the part of the defendant sufficient to charge it with negligence and to subject it to damages.

      2. Louisiana Digest — Telegraph and Telephone Companies — Par. 11.
    The telegram did not inform the defendant, nor was it otherwise informed, of the necessity of unusual haste in making delivery.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by J. P. Barnett against Western Union Telegraph Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Miller, Miller & Fletchinger, of New Orleans, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, and Marks, of New Orleans, attorneys for defendant, apipellee.
   CLAIBORNE, J.

The plaintiff claims

damages for delay in delivering a message.

The plaintiff alleged that to the knowledge of the defendant he was engaged in the cotton business in the City of Opelousas; that the defendant was in the business of transmitting messages by telegraph from Opelousas to New Orleans; that the price of cotton on the exchanges is subject to sudden fluctuations and that promptness in the transmission and delivery of messages in giving orders for the purchase and sale of cotton is of the utmost importance as defendant well knows that John M. Parker Co. in New Orleans is engaged in the cotton business; that on October 2, 1923, at 9:40 o’clock a. m., plaintiff went to defendant’s office in Opelousas and tendered the following message for transmission to John M. Parker Co. at New. Orleans :

"Call two hundred bales Lighter Cotton shipment today, also call two hundred bales and deliver there.”

That said telegram was transmitted from Opelousas at 9:45 a. m. of said day and was received at defendant’s main office in New Orleans and transcribed at 9:48 a. m., and was delivered at the office of John M. Parker at 10:05 a.m.; 'that the' office of John M. Parker is situated only a few hundred feet from the office of defendant, and that the customary time for delivering such messages at the office of John M. Parker is less than five minutes from the time of their receipt; that the said message instructed John M. Parker to call or fix the price of 400 bales of cotton theretofore sold, for petitioner’s account in New Orleans, the ©rices on which cotton were subject to fixing on plaintiff’s call at any time on- the basis set out in the agreement of sale and according to the market price obtaining in the New Orleans Cotton Exchange at the time of the call; that on said October, 2, 1923, an official report of the Department of Agriculture of the U. S. Government was to be announced at 10 a. m., and that the publication of said report is frequently followed by immediate fluctuations in the price of cotton, all of which was well known to the defendant; that had the defendant delivered said message to John M. Parker, promptly, and within the customary time, plaintiff’s orders would have been executed prior to 10 a. m. and prior to the publication of the Government report which plaintiff was anxious to have done; that immediately upon the publication of the government report on October 2nd the ©rice of cotton on the New Orleans exchange declined violently and by the time the message was delivered and John ,M. Parker had an opportunity to execute the order contained in said message, the price of cotton on the New Orleans exchange had declined 100 points or $5 a bale, causing plaintiff a loss of $2000, which plaintiff claimed of defendant on account of its negligence.

The defendant admitted all the allegations of the petition up to and including the delivery of the message to John M. Parker at 10:05 a. m., but denied all the other allegations charging them with negligence.

There was judgment in favor of defendant dismissing plaintiff’s suit, and he has appealed.

The only two questions in this case are first, whether the defendant was guilty of negligence or unreasonable delay in the delivery of the message; and second, whether the defendant knew or should have known that the message should have been delivered prior to 10 o’clock a. m.

1st. It is admitted that the message left Opelousas at 9:45 a. m. and reached the main telegraph office at New Orleans at 9:48.

The defendant has a receiving or branch station on the floor of the cotton exchange, and the office of John M. Parker is 100 yards from the. cotton exchange. Joseph A. Airey, a member of John M. Parker, testified that it took from 3 to 5 minutes to deliver a message from the main office of the Western Union to his office and should be two minutes to the floor of the cotton exchange, and that it would have taken him one or two minutes to fill the order. According to this witness, therefore, the message should have been delivered to him upon the floor of the exchange in two minutes after 9:48 and he could have filled the order in two minutes, leaving him a margin of eight minutes from ten o’clock.

There is not a member of the firm upon the floor at all times; he was not upon the floor on the morning of October 2nd; but it had been the custom of the telegraph company to deliver all messages to buy or call in case of his absence to their brokers Airey and Stouse; the telegraph company had no instructions but it was their custom; all messages for John M. Parker are sent from the main telegraph office to the cotton exchange by a pneumatic tube and are delivered by the messenger either to the ring or to the office of John M. Parker.

“Q. If it is to buy or sell it .is delivered to Airey and. Stouse your future brokers?
“A. That is it. ■
“Q. Do you know if it is to fix or call and Mr. Tom Parker or John M. Parker, Jr., are not there, is that message delivered to Airey and Stouse or your office on Union street?
“A. I cannot answer that.”

Henry J. Stouse, of the firms of Airey and Stouse, future brokers, testified that they executed most of the orders of John M. Parker; they are most of the time on the floor of the. exchange.

"Q. What is the practice of your firm with reference to the receipt of telegrams for John M. Parker and Co.?
“A. The Western Union delivers them either to myself, Mr. T. L. Airey, or Mr. -, or Mr. -; these telegrams are usually delivered to the four of us and we telephone to John M. Parker and Co. and ask if it is to be executed if it is a future order and if not we have it sent to the office.
“Q. The custom is, qnly messages delivered to Airey and Stouse or messages addressed to John M. Parker on which the sender directs to buy or sell in the future market. They are the only character of messages usually delivered to. Airey and Stouse, otherwise the messages are sent to the Union street office of John'M. Parker?
“A. Yes, sir.”

Mr. Thomas Parker testified that he was secretary of the John M. Parker Company and that he was on the floor of the cotton exchange on October 2nd from 9:30 a. m. until a while after 10.

On the part of the defendant, F. H. Wilson, route supervisor of the defendant, describes the mode of receiving and delivering messages thusly:

The telegraph office is at the corner of St. Charles and Gravier streets. (The cotton exchange is on Carondelet between Gravier and Union and the office of John M. Parker is on Union between Carondelet and Baronne streets.) The Opelousas wire is on the third floor of the building; the operator receives and transcribes the message, and puts upon it the time it is received; he then throws it on the clip; the route aids secure probably 25 wires and messages from these clips and they are brought to the route center; he takes the messages and assorts them as to the point they are going and drops them in the various baskets; some are for other cities; those for New Orleans are dropped in a basket known as “city business”; they are then assorted for the different branches, some 20 in number; those for John M. Parker are sent to the cotton exchange branch in a pneumatic tube; it takes one or two minutes to transfer them, depending on the weather; at nine in the morning the business is very heavy and only one box can be sent at a time; it is customary to send Parker’s messages to the cotton exchange; the volume of telegrams on the morning of the Government report is very heavy.

A. M. Porteous, manager of the Western Union at the cotton exchange for 12 years, testified that it was customary to deliver messages fqr John M. Parker at the cotton exchange through the tube; the tube clerk takes them out and distributes them to the copying clerk who copies them and ' gives them to the delivery clerk, who hands them to the messenger to be delivered; the message in suit reached the cotton exchange at 9:52; the custom was to deliver messages to buy or sell to Airey and Stouse on the floor and all other than those were to go to their office on Union street; for a few minutes before the Government report is received the volume of telegraph business is very busy and an additional force is necessary; there, are floor boys and other boys for the outside all the time; he would have sent the message sued on to the office of John M. Parker on Union street; at 9:54 the message left the cotton exchange to be delivered; the messenger boy returned at 10:10; there was another message at that time on the same route.

It will thus appear that the message left Opelousas at 9:45, reached New Orleans at 9:48, was transmitted to the cotton exchange at 9:52, left that place at 9:54 and was delivered at the office of John M. Parker, a distance of approximately two docks, at 10:05 or in twenty minutes from the time it left Opelousas. From the time it left Opelousas, 9:45, to the time it was put in the hands of the messenger boy, 9:54, there is not and there can be no charge of delay; the only time unnecessarily consumed was perhaps the time from 9:54 to the time of delivery, 10:05.

If it had been delivered at 10, within six minutes it would have been too late to act before the publication of the government report, and yet only six minutes for the messenger to make delivery. We do not consider that this would have constituted negligence under the conditions of this case, or that the parties to the contract had counted by minutes. The plaintiff himself contributed to his loss by sending from Opelousas to New Orleans on a panicky day like October 2nd a message which he intended to be delivered and acted on before 10, a difference in time of only 15 minutes.

Mailhot v. Pugh, 30 La. Ann. 1359; Thompson v. Hibernia Bank & Trust Co., 148 La. 57, 86 South. 652.

2nd. The learned trial judge decided in favor of defendant on the ground that the damages claimed were not in contemplation of the parties under Article 1934 of the Civil Cede. That the telegram itself did not inform the defendant of the importance of delivering the message before 10 a. m., nor were they informed of that urgency in any manner. We are of the same opinion. In the case of Mechanics’ Bank vs. Gordon, 5 A. 604, the defendant was sued for $10,000 for failure to deliver a like sum entrusted to him in a package stolen from him.

The judgment was in favor of defendant. The court stated that the defendant had not been warned of the necessity of great care by informing him of the very valuable contents of the (package.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,759
    Orleans
    ANSELMO v. PISCIOTTA, Appellant
    (May 23, 1927. Opinion and Decree.)
    (Feb. 28, 1927. Appeal Dismissed on Rehearing.)

      (Syllabus by the Court.)

    (ON REHEARING)
    1.Louisiana Digest — New Trial — Par. 36.
    Act 128 of 1921 does not deprive a party against whom judgment has been rendered from applying for a new trial within the delay provided by law, even, if the judgment has been signed before, the expiration of that delay.
    2. Louisiana Digest — New Trial — Par. 38; Appeal — Par. 261.
    In case application for a new trial has. been seasonably made the judgment shall not be final and the delay for appeal shall not begin until action by the court upon the application.
    3. Louisiana Digest — New Trial — Par. 36; Appeal — Par. 261.
    Under Act 128 of 1921 regulating the practice in the First City Court in cases between $100.00 and $300.00, an appeal must be taken to this court within ten days. The fact that an application for a new trial is pending under advisement by the court will not extend the time for appeal when the motion is filed after the judgment is signed.
    4. Louisiana, Digest — New Trial — Par. 36.
    The judges of the First City Court are authorized by Act 128 of 1921 to sign judgments immediately upon rendition and, when they choose to do so, no motion for a new trial can be considered.
    Appeal from First City Court, Division. “B”. Hon. Val J. Stentz, Judge.
    Action by Alphonse Anselmo against Louis Pisciotta.
    There was judgment for plaintiff and defendant appealed.
    Motion to dismiss appeal denied, and on rehearing, appeal dismissed.
    James N. Brittingham, Jr., of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
    WESTERFIELD, J. Dissents.
   CLAIBORNE, J.

In the case of Modenbach vs. Van Smooth, No. 8559 of this; court, a motion was made to dismiss the: .appeal on the. ground that the motion of appeal had been filed after the time allowed by Act 128 of 1921.

The facts in that case were that the judgment had been rendered and signed January 18, 1922; the motion for a new trial was filed on January 21, 1922, and was refused on January 31, 1922, the petition for appeal was filed, and granted on February 1, 1922, more than ten days after the rendition of the judgment.

This court decided ou June 18, 1922:

“It is true that this Act provides that ‘appeals shall be allowed and be returnable to the Court of Appeal, within ten days exclusive of Sundays, from the rendition of the judgment and repeals all laws in conflict therewith.’ But Act 97 of 1916 relative to appeals from judgment rendered by justices of the peace provides that ‘judgments shall not be final until action by the court upon any motion for a new trial which may have been made within the time now authorized by law or rules of court.’ ”

The motion to dismiss was denied.

In a case of N. O. Motor Co. vs. Kelly, No. 10,217 of this court, 3 La. App. 336, the plaintiff applied for a prohibition forbidding the judge of the First City Court from entertaining a motion for a new trial made after the judgment had been signed, on the ground that the judge had no power so to do under Act 128 of 1921.

After an elaborate opinion, the court concluded that the act did not deny to the party against whom judgment had been rendered the right to apply for a new trial, even though the application was made after the judgment had been signed.

If a defeated party has a right to file an application for a new trial, and as a necessary corollary to have it passed upon, then Act 97 of 1916 suspends the delay for taking an appeal until action by the court on the application. Durbridge vs. State, 117 La. 842, 42 So. 337.

The concluding clause of Act 97 of 1916, page 216, provides:

“Judgment shall not be final until action by the court upon any motion for a new trial, which may have been made within the time now authorized by law or rule.s of the court.”

In the case of State vs. Maloney, 115 La. 509, 39 So. 539, the court said:

“The right accorded .to parties convicted of crime to apply for a new trial, and the power and authority conferred upon district courts to grant the same, is the great remedy afforded by the lawmaker for the ascertainment and correction of any errors and resulting injury which may have taken place in the proceedings.”

This important right, even in civil cases, cannot be refused, especially in cases involving small amounts, unless clearly denied by the iaw.

It is therefore ordered that our previous opinion and decree herein be reversed and set aside, and it is now ordered that the motion to dismiss the appeal herein be denied.

Motion to dismiss appeal denied.
For the reasons given in the original opinion qf the court, I respectfully dissenc.
(Signed) W. W. Westerfield,
Judge.

ON MOTION TO DISMISS

It is contended that the appeal in this case was not taken in time. The suit for a monied judgment between $100.00 and $300.00 and was filed in the First City Court, that court having concurrent jurisdiction with the Civil District Court. The judgment was signed the same day it was rendered, September 28, 1926. The application for a suspensive appeal was granted October 11, 1926.

The law, Act 128, of 1921, provides that “appeal shall be allowed and returnable to the Court of Appeals within ten days exclusive of Sundays, from the rendition of the judgment.”

Obviously the appeal in this case was not taken within the ten days mentioned in the statute. But it is contended that the time was extended because of the pendency of an application for a new trial, which was filed the same day the judgment was rendered, taken under advisement and refused October 11, 1926. In other words, counsel contends that since he was within ten days of the date the new trial was refused he was in time with his appeal.

It does not appear from the record, whether the new trial was asked before the judgment was signed, or not. If filed before, the presumption is that it' was refused or the judgment would not have been signed. If filed after the signature of the judge was affixed to the judgment, it came too late, unless the judge signed prematurely, and inadvertently.

“A judgment prematurely signed does not become final and produces no effect where a motion for a new trial is seasonably made and subsequently granted.” State vs. Judge, 35 La. Ann. 1104.

No appeal could be taken after the judgment was signed if signed when authorized by law.

“A judgment becomes absolute by its signature and from that moment becomes the property of the party in whose favor it is rendered.” Mercer vs. Natchez B. & S. Ry. Co., 136 La. 187, 66 South. 774.

Act 128 of 1921 provides that the procedure in cases where the city courts have concurrent jurisdiction with the District Courts “shall be governed by the general laws regulating proceedings before the District Courts, provided that delays for answering shall be three days only, Sundays and holidays excluded, that all exceptions and answers must be filed at the same time, that no preliminary default shall be necessary prior to judgment and that judgments may be signed immediately after rendition * *

This act authorizes the judge of the First City Court to sign the judgment immediately. Counsel argues that the privilege, when exercised by the judge, deprives a litigant of the right of applying for a new trial. Of course it does, but if the legislature sees fit to place such discretion in the judge of the First City Court, we see nothing very shocking to our sense of justice in the procedure. Why shouldn’t this delay be eliminated in these small cases? The purpose of the Act of 1921 as well as the constitutional provision conferring this concurrent jurisdiction on the city courts was largely the expedition of judicial procedure in this class of cases. Nor do we think the action of the judge a quo in holding the application for a new trial under advisement for some time can save the situation. It merely indicated some doubt in the mind of the court as to whether it could or should grant the application. Perhaps defendant in rule experienced a false sense of security by reason of the court having entertained the motion, but we cannot allow such considerations to outweigh the positive provisions of the law which we have quoted.

The act declares that the judgment may be signed immediately and that an appeal must be taken within ten days. Obviously, therefore, when a judgment is signed immediately, and appellant knew of its having been signed because he filed his motion for a new trial the same day, there can be no delay for a new trial. The rule that an application for a new trial seasonably made extends the time for appealing until the application is disposed of finds no application here.

The appeal must be dismissed.


author: JONES, J.

text:
      No. 9582
    Orleans
    MICHEL v. KRAUSS
    (March 28, 1927. Opinion and Decree.)
    (April 21, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Garnishment—Par. 67.
    The answers of a garnishee, when categorical, make full proof of the facts stated against the seizing creditor, until contradicted by the other evidence.
    2. Louisiana Digest — Appeal—Par. 625 The judgment of the trial court on question of fact, when clearly correct, will be affirmed.
    Appeal from Civil District Court, Division “C". Hon. E. K. Skinner, Judge.
    Action by F. Ralph Michel against Leopold Krauss.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gordon Boswell, Milo Williams, of New Orleans, attorneys for plaintiff, appellee.
    Frank Machica, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This appeal is taken by the plaintiff from a judgment dismissing three rules to traverse the answers of three garnishees, Krauss Co., Ltd., Leon Heymann and Max Krauss.

In this court, appellant acquiesces in the judgment insofar as the Krauss Co., Ltd., is concerned, but he insists that the judgments in favor of the other two garnishees should be reversed.

In answer to the usual stereotyped interrogatories both garnishees filed sworn negative answers and plaintiff took a rule to traverse on the ground that the answers were false and evasive.

The only • witnesses examined by the . plaintiff were the garnishees themselves, and they both swore positively that their answers were correct.

Plaintiff seeks to prove these answers false by certain deductions from an audit of the books of Krauss Co., Ltd., supported by certain checks and paid bills.

It would serve no useful purpose to analyze the voluminous evidence, as only questions of fact are involved, and we entirely agree with the lower judge that the plaintiff has failed to disprove the answers.

For above reasons the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,249
    Orleans
    KIEFSKY v. COLEMAN, ET AL.
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625
    The finding of the trial court on matters of fact will be affirmed where clearly correct.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by Mrs. B. Kiefsky against Joseph Coleman, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans,, attorney for plaintiff, appellee.
    W. J. Burke, Jules A. Grasser, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlord against a tenant and an endorser of the tenant’s rent notes.

The amount claimed, $660.00, is represented by six notes of $110.00 each.

The defense consists of a plea of fraud and the averment that the lease was can-celled by mutual consent.

There was judgment for plaintiff, as "prayed for, allowing a credit of $147.00 collected by the landlord after the abandonment of the premises by the lessee. The right of' the tenant an,d, or, the endorser, to resume possession of the premises was reserved.

Only a feeble effort was made to support the averments of the defense which fell far short of proof. The trial judge was of opinion that the case was clearly with the plaintiff and so are we.

The judgment appealed from is affirmed.


text:
    No. 10,862
    Orleans
    KELLY, Appellant, v. DURING
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 67.
    The lessor is liable for the damages caused to the lessee’s furniture by fire produced by defective electric wiring.
    2. Louisiana Digest — Landlord and Tenant —Par. 65, 69.
    A lessee cannot. recover from his lessor the cost of moving owing to the defective condition of the leased premises.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by T. Kelly against Mrs. A. During.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    L. R. Westheimer, of New Orleans, attorney for plaintiff, appellant.
    Fred Marx, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit by a tenant against his landlord for damages arising out of alleged defective premises.

The plaintiff alleged that he occupied the premises, 2138 Elysian Fields Avenue, as lessee of the defendant; that on November 12, 1926, the premises caught fire and his movable property therein was damaged and he was compelled to move; that the fire was caused by the defective electric wiring in said premises. He claimed $138.50 damages and $15.00 cost of moving.

The defendant admitted the fire but averred “that she is in no wise liable for any damages caused to said plaintiff for the reason that, under the law, she was required to have the electric wiring in said premises inspected by the Fire Prevention Bureau, and that said bureau inspected the wiring in said premises and approved the same as to safety, and that the same was also approved by the City Electrician, and that if any defect existed therein respondent is not liable, for the reason that she cannot be held liable for the laches or faults of the officials required to make said inspection".

There was judgment rejecting plaintiff’s demand and he has appealed.

The liability of the lessor to answer in damages for vices or defects in the leased premises is at this date too firmly established to admit of discussion.

Civil Code 2695 (2665) reads as follows:

“The lessor guarantees the lessee against all the vices and defects of the thing (leased) and if any loss should result to the lessee from the vices an,d defects, the lessor shall be bound to indemnify him for the same.”

Jurisprudence has confirmed this language:

Schoppel vs. Daly, 112 La. 213, 36 South. 322.
St. Landry Whsle. Merc. Co. vs. New Hampshire Fire Ins. Co., 114 La. 146, 38 South. 87.
Bianchi vs. Del Valle, 117 La. 592, 42 South. 148.
Lochbaun vs. Southwestern Box & Lbr. Mfg. Co., 121 La. 176, 46 South. 201.
Bennett vs. Southern Scrap Material Co., 121 La. 204, 46 South. 211.
Wise vs. Lavigne, 138 La. 139, 218, 70 South. 103.
Walther vs. Walther, 139 La. 139, 71 South. 344.
Boutte vs. New Orleans Terminal Co., 139 La. 949, 72 South. 513.
Allain vs. Frigola, 140 La. 982, 74 South. 404.
Ciaccio vs. Carbajal, 142 La. 127, 76 South. 583.
State vs. Langston, 142 La. 294, 76 South. 717.
Ciaccio vs. Carbajal, 145 La. 881-888, 83 South. 73.
Thomson vs. Cooke, 147 La. 922, 86 South. 332.
Plescia vs. Le Roy, 148 La. 318, 86 South. 824.
Pierson vs. Times-Picayune Publishing Co., 148 La. 857, 88 South. 77.
Succession of Burgant, 148 La. 1042, 88 South. 391.
Landry vs. Monteleone, 150 La. 548, 90 South. 919.
Breen vs. Walters, 150 La. 578-585, 91 South. 50.
Davis vs. Hochfelder, 153 La. 183, 85 South. 598.
Parker vs. Kreber, 153 La. 191, 95 South. 601.

According to these authorities the plaintiff is not hound to prove how the accident happened.

Whether the damage was caused by defective flooring, or steps, or plastering, or heater, or electric fixtures, the law is the name.

Nor can the lessor escape his liability by attempting to fix it upon public officials or private mechanics. He may have • his recourse against them, but he is primarily liable.

The testimony leaves no doubt that the fire was caused by electric wires; the conclusion is irresistible that they were therefore defective. No other cause- can be imagined and, therefore, it is reasonable to attribute it to electric wires. Rousseau vs. Railroad, 4 La. App. 697; Castille vs. Cormier, 144 La. 640, 81 South. 210.

The plaintiff testified that he lost the following articles:

2 Blankets _______________________________$ 33.00
1 Oil Heater ____________________________ 8.00
Mattress ___________________________________ 25.00
1 Art Square __________________________ 35.00
2 Pillows ____________________________________ 3.00
4 Pictures _____________________ 8.00
1 Overcoat ________________________________ 10.00
Underwear ________________________________ 12.00
Repair to Yictrola __________________ 10.00
Total __________________________________$144.00

There is, however, no testimony that any of those articles were destroyed by fire, except the mattress, which was partly burnt; the art square was wet; the fire was in the ceiling and not -upon the floor; and the worst that could have happened to the other articles was to have been damaged by fire. We will allow the cost of the mattress, $25.00, and fifty per cent of the value of the other articles, or $60.00, making in all $85.00.

The- plaintiff cannot recover for moving. Pierce vs. Hedden 105 La. 294 (304), 29 South. 734; Knapp vs. Guerin, 144 La. 754 (765), 81 South. 302.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant, Widow A. During, be condemned to pay to the plaintiff, T. Kelly, the sum of eighty-five dollars with five per cent per annum interest from January 10, 1927, till paid, and all costs of suit.


text:
    No. 9679
    Orleans
    LEVY v. KIRWIN, Appellant
    (March 28, 1927. Opinion and Decree.)
    (April 11, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6, 8; Evidence — Par. 58, 59.
    A depositary for hire who fails to return the thing deposited must show, in order to escape liability that he was prevented by inevitable accident or irresistible force.
    2. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    The extent of his liability is such sum as would enable the depositor to buy another thing of the kind and quality deposited.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.

      Action by Henry Levy against John F. Kirwin.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Louis L. Morgan, Thos. E. Furlow, of New Orleans, attorneys for plaintiff, appellee.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff claims the value of an automobile deposited with the defendant.

He alleged that the defendant was conducting a garage; that on May 8, 1923, he agreed with said defendant to store his Ford car in his garage for $7.50 per month; that it remained there until July 8, 1923, when it was stolen from . said garage; that the loss was caused by the gross negligence of the defendant; that his car with two shock absorbers was worth $436.00, for which he claims judgment against the defendant.

The defendant answered that he was “the lessee of the garage” and that he sublets portions thereof, and that "he did sublet space in said garage to plaintiff”. He denied all the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed: -

The defendant’s position is that “the relation existing between the defendant and the plaintiff, under the facts disclosed in the case, is that of landlord and tenant”.

In this we think he is mistaken. In the contract of lease and essential element is “the thing”. C. C. 2670 (2640).

In the present case there is no particular thing or space leased. The only right granted is one to occupy a space in the garage which is not occupied by another, some days one space, other days another space which might happen to be vacant.

The plaintiff was asked:

“Q. When you made your arrangement with Kerwin did he • assign to you some particular portion of the floor space at his garage in which you should put your car?
“A. No, sir.”

The defendant kept a watchman at his garage at night, and men in the daytime.

It was a deposit for hire. C. C. 2926 (2897) :

“A deposit in general is an act by which a person receives the property of another, binding himself to preserve it and return it in kind.”

C. C. 2929 (2900):

“The deposit is essentially gratuitous. If the person with whom the deposit is made receives a compensation, it is no longer a deposit, but a hiring.”

C. C. -2937 (2908):

“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”

C. C. 2938 (2909):

“The provision in the preceding articles is to be rigorously enforced: 1st and 2nd. If it has been agreed that he shall have a reward for preserving the deposit.”

There are several kinds of deposits; that which is made with innkeepers, agisters of cattle, wharfingers, warehousemen and others. These are called bailments at common law. 1 Story 1, 3.

“A hiring,” called in the civil law “loeatio conductio”, is a bailment always for a reward or compensation. It is divisible into four parts: 1st 2nd, 3rd. “The • hiring of care and services to be performed or bestowed on the thing delivered.” Story, S. 8.

This precise case was decided by the Court of Appeal of the Second Circuit in Hartford Fire Ins. Co. vs. Doll, 5 La. App. 226, 14 Advance Rep., where a depositary of automobiles was held liable for the value of a car stolen while in his custody. The defendant in this case argues that Doll was held liable only because of the special contract written across the receipt which he had given for the car in these words: “We will endeavor to protect your car from all trespassing while parked with us.” But the court said:

“It is contended by defendant that he assumed no special obligation to protect and restore this car, but we think he did. The printed receipt or coupon evidences that fact. But even if he (it) did not, he is still liable under the general law of bailment in which there is an implied obligation on the part of the bailee to keep and return the property; and unless it is shown that the property was lost without negligence on his part, he is liable for its value.” Quoting 26 A. L. R. 224, and many cases from our Supreme Court. See also 12 Orl. App. 341; Marr vs. Barnes, 1 Rob. 190; Dunn & Yates vs. Branner, 13 La. Ann. 452; Boyd vs. Estis, 11 La. Ann. 704; Clark vs. Hebert, 15 La. Ann. 280; Kauffman vs..Baer, 21 La. Ann. 601; Willard vs. Norsworthy, 25 La. Ann. 601.

The case of Berry vs. Marix, 16 A. 248, upon which defendant relies, is easily differentiated. In that case the defendant was a livery stable keeper; he rented several stalls to the plaintiff for a stipulated price; the plaintiff furnished the provender and kept an employee in the stable to take charge of his horses. The court held that the object of the contract was not the horses but the stables; and that the defendant was the lessee of the stables; and had nothing to do with the horses. “Having no control over the horses,” said the court, “which were, by the agreement, under the sole care and charge of the other employee, it follows that he cannot be called upon to deliver them to the owner or to make up the loss.” But in the case under consideration the defendant had not leased any particular stall to the plaintiff. The contract between them was one by which the defendant assumed care of plaintiffs auto in his garage and obligated himself to deliver it to plaintiff on demand.

The evidence is that plaintiff bought his ear on April 17 and the defendant failed to return it on July 8 of the same year, a period of less than three months, and that he paid for it $436.00. The defendant pleads a reduction of the amount claimed on the ground of intrinsic depreciation. There is no evidence that the car was damaged 'in any manner greater than ordinary wear' and tear. The obligation of the defendant was to pay to the plaintiff such a sum as would buy another car of the same kind in the same condition. C. C. 2152. There is no evidence that he could have bought one for less than $436.00.


text:
    10,747
    Orleans
    SILVER v. NATIONAL LIFE AND ACCIDENT INS. CO., Appellant
    (March 21, 1927. Opinion and Decree.)
    (March 28, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied in Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 30, 101, 102.
    Conditions in a policy of insurance may be waived by the company, as well as representations and warranties.

      2. Louisiana Digest — Insurance—Par. 104, 105, 175.
    Under Act 97 of 1908 the failure of a life, health or accident insurance company to have made a medical examination of the assured before issuing the policy raises a presumption of waiver of all questions of health, habits or occupation of the assured and precludes it from defending upon those issues.
    3. Louisiana Digest — Insurance—Par. 160; Attorneys — Par. 59.
    Section 3 of Act 300 of 1910, p. 527, does not authorize penalties or attorney’s fees when the insurance company defends upon just and reasonable grounds.
    Appeal from First 'City Court. Hon. W. V. Seeber, Judge.
    Action by Louis F. Silver, wife and child, against National Life Accident Insurance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Martin Kranz, of New Orleans, attorney for plaintiff, appellee.
    Soloman S. Goldman, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a beneficial insurance policy.

The plaintiff alleged that on November 9, 1925, the defendant company insured the life of her mother, Pearline Kolmor, for $108.00 in favor of plaintiff as beneficiary; that on February 27, 1926, the assured died; but that the defendant company refused to pay the policy; that by reason of such refusal plaintiff is entitled to double the amount of the policy and also to an amount for attorney’s fees to be fixed by the court;

The defendant admitted the issuance of the policy, the death of the assured, and the payment of all premiums, but denied all liability for the following reasons:

1st. That the policy was issued upon the specific condition contained in the policy itself as follows:

“No obligation is assumed by the company prior to the date thereof, nor unless on said date the insured is alive and in sound health. Should the proposed insured not be 'alive or not be in sound health on the date hereof, any amount paid to the ■company as premiums herein shall be returned.”

2nd. That there is no law which makes it responsible for penalties or attorney’s fees under the circumstances of this case.

Further answering, the defendant averred “that it has learned since the death of insured that she was not in sound health on the 'date the said policy was issued and that prior thereto respondent was not aware of that fact; but that the beneficiary and the insured were aware at the time the said policy was issued and the application therefor signed by her that she was not in sound health, but on the contrary had for some time prior thereto been seriously ill and her health severely impaired; that the disease with which insured was suffering at the date of the policy. was the same disease which ultimately caused her death. Respondent avers that the said policy, therefore, never took effect nor went into force an;d was at all times null and void, and your respondent has offered to return to the beneficiary the amount of premiums paid on said, policy, namely $3.40, and continues to offer the return of said sum”.

There was judgment for plaintiff for the amount of the policy, $108.00.

The defendant has appealed, and in this court the plaintiff and appellee prays for an increase of the judgment to the amount claimed by her in penalty and attorney’s fees.

Over the objection of the plaintiff there was testimony admitted in support of the answer that on the date of the issuance of the policy and for over one year prior thereto, the assured was not in sound health, but, on the contrary, had been suffering from chronic heart trouble and high blood pressure, and was in imminent danger of death to the knowledge of the assured, but knowledge of that condition was not brought home to tlie beneficiary.

It does appear, however, from the testimony that the policy was issued “without a medical examination of the assured by a physician”. It also appears that the insurance company had an opportunity to ascertain the true condition of the health, habits and occupation of the assured.

Under the view we have taken of this case, . we are of the opinion that, under the law and the jurisprudence of this state, the diseased condition of the assured on the day the policy was issued is not a good defense to the payment of the policy, and, consequently, all testimony in support of that defense should have been excluded and the objection to its admissibility should have been sustained.

Act 97 of 1908, p. 139, reads as follows:

“That whenever life, health or accident insurance companies, which issue policies or contracts of insurance to the assured without a medical examination of the assured by a physician, it shall be presumed (whenever it appears that the agent of the company has had an opportunity to ascertain the true condition of the health, habits or occupation, of the assured, and has certified to the company the desirability of the risk) that the knowledge acquired, or which might have been acquired with reasonable diligence by the agent of the company in securing the application, as to the health, habits or occupation of the assured has been disclosed to the principal, and it shall also be presumed that the company has waived its rights to claim a forfeiture of the policy based on the ground that the assured did not make true and full answers in, the application as to the health, habits or occupation whenever it shall appear that the agent of the company knew, or might have ascertained with reasonable diligence, the true condition of the applicant’s health, or the real facts as to his habits ’ or occupation, knowledge of the agent of the company in writing the application, or of the collector of the company in collecting the premiums from the' assured, shall be imputed as notice to the company as to the health, habits or occupation of the assured.”

In the case of Brown vs. Continental Casualty Co., 161 La. 229, 108 South. 464, the defense was that in the assured’s application for the insurance he had made a false statement with regard to a material fact when he said that he had not had, and was not suffering from, any chronic or periodic physical ailment or disease.

The policy in that case was issued without a medical examination. Applying the Act of 1908 to this ease, the court said on page 465:

“It must be presumed that the company waived its right to claim a forfeiture of the policy on the ground that the insured did not make true and full answers in his application, as to his health, in that respect.” Langston vs. U. S. Natl. Life & Casualty Co., 4 La. App. 474; Kilbourne vs. Life & Casualty Ins. Co., 2 La. App. 275. See also Gunther vs. N. O. Cotton Exch. Nafl. Aid Assn., 40 La. 776, 5 South. 65.

But the plaintiff contends that the clause upon which it relies to relieve itself from liability is not a mere representation or warranty as in the case of Brown, just quoted, but is a part of the contract itself upon which the validity of the policy itself rests. We agree with it. But the authorh ties are that similar clauses in ,a contract may be waived as well as representations or warranties. Thus where a fire policy contains the condition that “no insurance shall be considered binding until the actual payment of the premium”, it has been held that the issuance of the policy without payment of the premium is a waiver of the clause. Pino vs. Ins. Co., 19 La. Ann. 214 (232). Also Mercantile Co. vs. Teutonia Ins. Co. of N. O., 113 La. 1054, 37 South. 967; Story vs. Hope Ins. Co., 37 La. Ann. 254.

We do, not see what greater sanctity exists in conditions of the contract over stipulations and warranties. If the company can waive the latter we see no good reason why it cannot waive the former.

If the argument- of the defendant prevailed it. would lie in the power of insurance companies to nullify the Act of 1918 by inserting in the body of the pblicy, as the defendants have done here, all those conditions which by the act are considered waived by the failure of the defendant to make a medical examination- of the assured; and thus destroy the spirit of the law by adhering to its letter.

The authorities from other states quoted by defendant ' aré interpretations of policies different from- the one under consideration and of laws not similar in language to our own. 154 N. E. 757; 74 N. E. 945; 56 N. E. 908; 22 Pa. Super. Ct. 244.

While .they are entitled to' much consideration, .we must be guided by our own . Supreme Court.

2nd. It is not necessary to decide whether Act 310 of 1910, p. 527, applies to this case or not. Whether it does or not wo- do not think- that Section 3 of the Act entitles plaintiff to the penalty and attorney’s fees claimed by her. The section reads!

“That the- insurance company guilty of such delay in payment, unless upon just and reasonable grounds, shall, pay to the assured, as a penalty, double the amount due under the terms of the policy or contract, during the period of delay, with attorney’s fees to be determined by the tribunal before whom suit is instituted.”

We do not think that the defense in this case was without “just and reasonable grounds”. Penalties are not favored. Kelly vs. National Co., 9 Orl. App. 193 (196).


text:
    No. 10,789
    Orleans
    JEFFERSON MOTOR CO. v. DAUNER
    (April 11, 1927. Opinion and Decree.)
    (April 21, 1927. Rehearing Refused.)
    (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625. Where the sole question in the case is one of fact, the findings of the lower court will not be disturbed, unless the discretion of the court has been abused.
    Appeal from First City Court, Division “A”. Hon. W. A- Bahns,, Judge..
    Action by Jefferson Motor Company, Inc., against Edward M. Dauner.
    There was judgment for plaintiff and defendant appealed.
    Judgment ’ amended and reconventional demand dismissed as of non-suit.
    F. B. Freeland, of New Orleans, attorney for plaintiff, appellee.

      Geo. D. Smart, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This case presents purely a question of fact. The plaintiff sued to recover one hundred and forty-five ($145.00) dollars alleged to have been loaned to the. defendant. The defendant admits receiving the one hundred and forty-five ($145.00) dollars, but sets up that it was not a loan, but was paid as advances, which were not to be returned, unless he made enough in commissions from his automobile sales to balance the account.

As defendant admits that the amounts were "advances against commissions”, and as the record shows the invariable custom of plaintiff with all the salesmen, including defendant, at times past was to consider these advances as loans, we think the trial court has correctly decided the issue, except for one item as follows:

This record shows that defendant is entitled to a credit of twenty-one and 90-100 ($21.90) dollars as commission on a Ford car sold by him.

It is ordered, adjudged and decreed that there he judgment in favor of plaintiff, Jefferson Motor Company, Inc., and against defendant, Edward M. Dauner, condemning the said Edward M. Dauner to pay unto plaintiff herein the full sum of one hundred and forty-five ($145.00) dollars, with legal interest from judicial demand until paid, subject to a credit of twenty-one and 90-100 ($21.90) dollars, with legal interest from judicial demand.

It is further ordered, adjudged and decreed that the reconventional demand filed by the defendant be and the same is hereby dismissed as in case of non-suit.


text:
    No. 9629
    Orleans
    PITCHER ET AL. v. SUTTER MOTOR CAR CO.
    (Mar. 28, 1927. Opinion and Decree.)
    (Apr. 25, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages—Par. 3, 27, 31.
    An automobile mechanic who engages to repair and deliver an automobile within a specified time, who fails so to do, and refuses to return the automobile notwithstanding repeated demands, and compels the owner to sue for it, is liable in damages.
    (See Civil Code Article 2315. Editor’s note.)
    Appeal from Civil District Court, Division —. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Edna Pitcher et al. against Sutter Motor Car Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellant.
    Wallace A. Nunez, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit by plaintiff to recover possession of her automobile and for judgment for the value of repairs made thereon.

This suit was filed February 19, 1923. Plaintiff alleged that she was the owner of a touring Westcott car; that on November 16, 1922, she delivered her car to the defendant corporation for certain repairs which it agreed to make for $314, and to return the car one week before Christmas; that since that time she has repeatedly made demand for the return of her car without avail; that she' has suffered damage in the sum of $1250 on account of worry and anxiety caused by the defendant’s breach of their contract, and $250 for the inconvenience and annoyance of not having her car. She prayed for a sequestration, for possession of her car, and for $1500 damages.

The sequestration issued as prayed for, but the defendant did not deliver the car.

On March 23, 1923, Samuel E. Sutter, alleging that he did business under the name of the Sutter Motor Car Co., filed what he. styled a petition of intervention and third opposition and averred that he was engaged in the business of repairing automobiles; that he made a contract with the plaintiff by which he was to paint and repair her automobile; that the painting and repairs were done in a workmanlike manner and that the bill amounts to $314 for which he has a privilege on said automobile; that the plaintiff had said car sequestered and it is now in the possession of the sheriff. He prayed for a sequestration and for judgment against Mrs. Pitcher for $314 and $2.50 for recording privilege.

The sequestration issued.

The plaintiff answered the petition of Sutter by denying that he had repaired the car and by reiterating the allegations of her original petition and praying for judgment against Sutter.

The district judge found that the defendant agreed to paint and repair plaintiff’s car and to return it before Christmas; that plaintiff did not recover her car until the following March, and then only by bonding Sutter’s sequestration. That Sutter constantly refused to return her car or to tell her where it was. That she even filed an affidavit against him in the criminal court charging him with embezzlement. No money damages were proven, but he fixed the money damages presumed from a violation of the contract at $350. He found that the defendant had agreed to repair and repaint plaintiff’s car for $314; but that he did' not do all of it, and that what was done badly done, so that he is not entitled to the whole amount; that the record does not establish, with any certainty, what is due Suttér. He rendered judgment in favor of plaintiff for $350 damages and for the return of her automobile and non-suited the defendant, Sutter.

Sutter has appealed.

It is not disputed that the judgment in favor of the plaintiff for the automobile is correct.

The judgment in favor of the plaintiff for $350 seems to us excessive. The defendant was in default for not delivering the car only after Christmas, when he had agreed to complete the repairs. The plaintiff recovered her car on March 22, 1923, about three months later than he had agreed.

She was not using that car in any business, nor did the absence of' it cause her any pecuniary loss. Cable vs. John Leeds & Co., 6 La. Ann. 293.

A short time after she recovered possession of her car she sold it. She was therefore deprived only of the pleasure she might have derived from her. car. Her mental anxiety for the annoyance caused to her by defendant entitles her only to nominal damages. She cannot recover vindictive damages. We reduce the damages allowed her ' to one hundred and fifty dollars.

The only witness to. establish the claim of defendant on his reconventional demand is himself. He filed a bill in the following form:

“Repair to Westcott automobile:
“Repair woodwork, straighten chassis, overhaul motor, put in new car gear, new piston pips, and bushings, repair universal joint, put in two new front fenders, new tire rack, new starting crank aluminum cap, new spring bumper, new top with plate glass rear light, recharge battery, recover running boards, paint car, bake 2 rear fenders, fix lights, put new nuts on windshield, new rugs and dress upholstering. Price as agreed $314.”

Sutter made affidavit of the correctness of this bill.

Upon the trial of the case, Sutter was the only witness in favor of the bill. He testified that it was correct. He entered in no details as to quality, quantity, or value.

On the other hand, Ross Murphy, plaintiff’s son, says that the ipaint job was not a good one, and that the engine had a knock in it.

Hammond Bailey, a mechanic, examined the car the day after the plaintiff recovered it. He says:

“There was a knock in No. 1 cylinder, the tappets were making a noise, 3 cylinders were loose, as well as the clutch, the tail light was disconnected and out of order, left front wheel bushing, splash shield brakes out of order; adjustment, clutch, grabbing spring too weak, knocks, plates and foot carpet ragged.”

Eli Hebert, a bridge and iron worker, says that “the condition of the car after plaintiff got possession of it was not a bit better than when we put it in the shbp.”

There was no rebuttal of this testimony.

We are of the opinion that the judgment of the District Court in defendant’s, Sutter’s, reconventional demand is correct.

It is therefore ordered that the judgment in favor of plaintiffs, Mrs. Edna Pitcher, wife of Charles R. Pitcher, and Charles R. Pitcher, be reduced from three hundred and fifty dollars to one hundred and fifty dollars, and, as thus amended, that it be affirmed.

It is further ordered that the judgment against Samuel E. Sutter dismissing his intervention and reconventional demand as in case of non-suit be affirmed.

The plaintiff, Mrs. Pitcher, to pay the costs of appeal and the defendant, Samuel E. Sutter, to pay the costs of the District Court.


author: REYNOLDS, J.

text:
    No. 2675
    Second Circuit
    POULSON v. BLANCHARD
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Attorneys—Par. 45.
    A lawyer owes to his client a definite accounting for moneys entrusted to him by his client; and he will not be relieved of this duty by proof of a vague recolie,ction that such moneys were to some extent expended by him for the benefit of his client.

      2. Louisiana Digest — Appeal—Par. 625.
    The findings of fact of a district judge will not be disturbed on appeal unless clearly erroneous.
    Cunningham vs. Middleton, 4 La. App. 643.

      3. Louisiana Digest — Parties—Par. 22; Pleading — Par. 54, 59.
    Plaintiff’s alleged lack of capacity to sue for the return of moneys deposited by her brother with defendant for her account should have been raised by exception in limine.
    Gualden vs. K. C. S. Ry. Co., 106 La. 410, 30 So. 889. ‘
    Appeal from the First Judicial District Court of Louisiana, Parish of Cadd.o. Hon. F. X. Ransdall, Judge.
    Action by Mrs. A. M. Poulson against Frank A. Blanchard.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff is the mother of a young man who put worthless checks in circulation and she brings this suit to recover $1000.00 of $1500.00 deposited by her brother with defendant for her account to secure defendant against loss by reason of his having become surety on a bail bond of the young man.

The bond was reduced from its original amount to $300.00, and, as reduced, was forfeited and was paid by defendant.

After deducting the $300.00 and allowing defendant a fee of $200.00, plaintiff filed this suit to recover the remaining $1000.00.

Defendant denied liability, and alleged that he had paid out the $1000.00 and more in taking up worthless checks that plaintiff’s son had put in circulation.

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

OPINION

Defendant admits having received $1500.00 from plaintiff’s brother, F. C. Hedrick, and that the amount of the bail bond that he signed as surety was reduced to $300.00, but alleges that the bond as reduced, was forfeited and that he paid it; and he establishes by his own testimony and that of District Attorney L. C. Blanchard and the then Assistant Attorney Earl H. Crane that he paid numerous worthless checks that had been put in circulation by plaintiff’s son; but he failed, to establish either by his own testimony or that of his other witnesses the amount of any such check or the name of the person to whom he paid it.

Considering the great responsibility resting upon a lawyer to faithfully account to his client for moneys deposited with him by his client for a specific purpose, we are convinced that defendant’s evidence is not sufficiently definite to establish the special defense set up by him. The burden was on him to prove his special defense by clear and positive evidence. His entire defense rests upon proof of recollections by him that are vague, uncertain and indefinite. In our opinion his special defense has not been established.

' Defendant insists that he did not deal with plaintiff and therefore owes her no accounting. But this defense should have been urged by exception in limine.

The evidence clearly establishes that the $1500.00 deposited with him belonged to plaintiff and that it was put in his hands by her brother acting as her agent. She therefore has a cause of action to sue for the return of the $1000.00.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


author: REYNOLDS, J:

text:
    No. 2671
    Second Circuit
    KRUSE v. PAVLOVICH
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Action—Par. 1, 2, 3; Negligence — Par. 6.
    An adopted daughter has no cause of action for damages for the suffering or death of her adopter mother caused by the negligence of another.
    (See Civil Code Article 2315.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Mrs-. Minnie G. Kruse against Mrs. Leha P. Pavlovich.
    ' There was judgment for defendant and (plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Joseph H. Levy, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J:

This is a suit by an adopted daughter to recover damages for the suffering and death of her adopter mother alleged to have been caused by the negligence qf defendant.

An exceptien qf no right or cause of action was filed by defendant and sustained by the court and plaintiff appealed.

OPINION

The question presented by the exception qf no right or cause of action is one of law, namely, whether the law allows an adopted daughter to recover damages for the suffering and death of her adopter mother caused by the negligence of another.

Article 2315 of the Civil Code of 1870, Article 2294 of the Civil Code of 1825, originally reads as follows:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Under this article it was universally held that no right of action passed to the heirs of a person injured in case of his death. Jhat there was no right of property in human life. And where a person injured died as the result of the injury the right of action against the person causing the injury died with him.

Article 2315 has been amended several times, the last time by Act of 1918 and now reads as follows:

“Every act whatever of man that causes damages to another, oblige^ him by whose fault it happened to repair^it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in. default of any of the ’ above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one yeár from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; ¡provided, further, that the right of action shall accrue to the major children only in cases where there is no surviving spouse or minor child or children. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the case may be.”

And the question is presented, whether under the language, “the right of this action shall survive in case of death in favor of the children * * * of the deceased”, adopted children are included?

Counsel for plaintiff contends that they are.

In Vaughan vs. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926, the Supreme Court said:

“Article 2315 of the Civil Code, as amended, should be strictly construed, and the exceptional right of action granted therein should be restricted to the classes of persons specially designated as beneficiaries. All classes not expressly included are excluded.”

And in Mount vs. Tremont Lumber Co., 121 La. 64, 46 So. 103, the court said:

“The right granted in Article 2315 of the Revised Civil Code to the surviving ‘father’ or ‘mother’ to recover damages for the death of their son is a right granted to the actual father or mother of the child, and not an adopting parent.”

Under the construction placed by the Supreme Court on the language used in the amendment to Article 2315 we are convinced that adopted children cannot be held tq be among the persons specially designated as beneficiaries.

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


text:
    No. 2149
    Second Circuit
    AUTOMOBILE FINANCE & SECURITIES CO. v. COMMERCIAL MOTOR CO., INC.
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus 6y the Court)

    I. Louisiana Digest — Guaranty—Par. 9, 10.
    A contract of indemnity will be construed according to its unequivocal terms, taken in connection with the subject matter to which it relates; neither enlarging the words beyond their import in favor of the creditor, nor restricting them in the aid of the surety.
    Continental Supply Co. vs. ‘Fucker-Rose Oil Co., 146 La. 671, 83 So. 892.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Automobile Finance & Securities Company against Commercial Motor Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gilmer & Cousin, of Shreveport, attorneys for plaintiff, appellant.
    George Dimick, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues defendant for $912.10 damages for alleged breach of contract.

Defendant sold to one Jack Allison a certain' automobile, taking, in part payment thereof, his ten promissory notes,'each for the sum of $108.35, all dated November 6, 1919, all drawn payable to the order of plaintiff, one qn December 6, 1919, and one on the 6th day of each of the ne'xt succeeding nine months, all bearing 8 per cent per annum interest from their maturity until paid, all stipulating payment of fifteen per cent on the amount of principal and interest if placed in the hands of an attorney for collection, and all stipulating that upon default in the payment of any one of them at its maturity or in compliance with the terms of the mortgage given to secure their payment, all of the notes remaining unpaid, whether due or not, should immediately become due and payable. All of the notes were paraphed “Ne Varietur” by W. M. Phillips, a notary public of Caddo Parish, Louisiana, as of date November 6, 1919, to identify them with an act of mortgage of that date granted by Jack Allison on the automobile to secure the payment of the promissory notes and other obligations mentioned in the mortgage.

The mortgage stipulates, amongst other things, that the vendor, or any future holder of the notes, might effect on the mortgaged property in the name of the purchaser for the use and benefit of the vendor or holder, insurance in such amount and covering such risks and casualties as the vendor or holder might deem proper, and that in case of loss the amount received should be credited pro tanto on the amount of the indebtedness of the purchaser and the surplus, if any, be paid to him.

The automobile was insured against loss by reason, amongst other things, of damage done to or sustained by the automobile in collision.

The promissory notes and the mortgage and insurance contract were sold by the defendant to the plaintiff under an agreement between them stipulating, amongst other things, as follows:

‘‘Seventh: The dealer (defendant) * * * further agrees that in the event the finance company (plaintiff) is compelled, in order to protect its debt, to purchase a,t foreclosure sale any vehicle, the credit purchase notes of which had been sold by the dealer (defendant) to the finance company (plaintiff), that he will on demand purchase and take such vehicle from the finance company (plaintiff) and pay to it therefor the actual amount then due by such purchaser, together with the actual expenses incurred in such foreclosure.”

Allison paid the first two maturing of the notes but failed to pay the remaining eight.

On February 17, 1920, the automobile was wrecked in a collision and the plaintiff promptly notified of it. The collision happened in Alexandria, Louisiana. The car was put in shipping condition at a cost of $45.00 and shipped to Shreveport at a cost of $50.00. At Shreveport plaintiff foreclosed its mortgage on the automobile and bought it in. Plaintiff accepted $200.00 from the insurance company in full settlement of its liability under the policy of insurance for the damage to the automobile. In addition to the repair bill and freight charges plaintiff incurred other expenses in connection with the recovery of the automobile as follows: sheriff’s costs $28.10, clerk’s costs, $11.10, attorney’s fees, $25.00, and storage charges $168.61. These items added to the amount owing on the eight promissory notes, $971.77, less a credit of $200.00 received from the insurer, ■left a balance of $1094.58 claimed by plaintiff, which, amount' it demanded of defend-. ant and tendered it the automobile, and defendant having refused to pay the ; amount or accept the automobile plaintiff 1 brought this suit. • !

Defendant denied liability on the ground ' that its obligation to indemnify plaintiff j was conditioned on its minimizing its loss ; as much as possible by keeping the auto- , mobile fully insured and collecting from ; the insurer the full amount of its liability, ' foreclosing its mortgage on the automobile as soon as it was entitled to do so, and by I promptly having the automobile put in as good condition as it was before the colli- : sion at its own expense and promptly ten- ■ dering it repaired to defendant; that plaintiff had unnecessarily increased the amount of the loss by accepting from the insurer : less than it was liable for, by neglecting promptly to foreclose its mortgage, by failing to have the automobile restored to the condition it was before the collision, and by , allowing the battery and tires to become worthless and storage charges to accumulate by unnecessarily keeping the car in storage. ;

On these issues the case was tried and ■ there was judgment in favor of the defend- , ant and plaintiff appealed.

OPINION

The question to be determined in this case is. whether plaintiff promptly did all that was possible to minimize its damages.

It is not disputed that the automobile was insured for the small value, less $50.00, against damage by collision; and it is also made clear that the automobile was reduced to a wreck by a collision. Plaintiff took into its own hands the matter of adjusting with the insurer the amount to be paid by it in settlement of the loss, and without consulting ■ defendant ' accepted from the insurer $200.00.

The' insurer having been liable for the value of the car, less $50.00, and plaintiff having accepted from it $200.00 in discharge of that liability, the burden was on plaintiff to show that this was a fair and reasonable settlement. At the time of the collision the automobile was less than four months old. It is in evidence that it would have cost from $300.00 to $900.00 to have put it in the condition it was before the collision.

In our opinion defendant’s only obligation 'under the contract between it and plaintiff was to accept the car and pay plaintiff whatever might be owing to it on the notes and the expenses of foreclosure, and it was plaintiff’s duty to foreclose its mortgage as soon as it was entitled to do so. It was not in the contemplation, of the parties that the purchaser should be left in possession of the automobile notwithstanding he was in default in the payment of his notes. Nor was it in the contemplation of the parties that defendant should hold plaintiff harmless against damage to the automobile. And a fortiorari it was" not in the contemplation of the parties that in case of damage to the automobile by collision plaintiff might accept from the insurer such sum as he saw fit and hold defendant for whatever might be owing on the purchaser’s notes. ' ■

Before plaintiff could recover for breach of the contract sued on he would have to put himself clearly in line' with the conditions under which the defendant agreed to accept the automobile and pay plaintiff what might be owing on the notes and the expenses he had been to in' foreclosing the mortgage; and the evidence convinces us that he has nót done this.

For the above reasons, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 10,828
    Orleans
    GULF COAL AND COKE CO., Appellant, v. BINGAMAN
    (April 25, 1927. Opinion and Decree.)

      {Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant Par. 54.
    The lessor is not liable for property of the lessee tortiously removed from . the leased premises by parties not identified.
    Appeal from First City Court, Division “A”. Hon. W. Alexander Bahns, Judge.
    Action by Gulf Coal and Coke Company, Inc., against Soloman C. Bingaman.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Legier, MeEnerny & Waguespack, Chas. Danna, of New Orleans, attorneys for plaintiff, appellant.
    Marcus & Corkern, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for the illegal removal of plaintiff’s signs from defendant’s property.

The plaintiff alleged that, some time prior to July, 1925, he rented a space on the gallery of the premises, corner of Howard avenue and Baronne street, from the owner thereof, George Jacobs, for the purpose of displaying his sign, for the price of $15.00 per month; that during the month of July the property was sold to a purchaser represented by Matthews Brothers as agents, who informed plaintiff that he must pay the rent to them from July 1, 1925; that plaintiff notified Matthews Brothers. that it would not renew the lease unless it was assured of a six months’ lease, as their sign needed repainting; that Matthews Brothers notified plaintiff to repaint the sign and to replace it, reserving the right to place additional signs on the said gallery; that accordingly plaintiff had his sign repainted at a cost of $35.00, and sent a check of $15.00 to Matthews Brothers in payment of the rent for the month of July, which they collected; that on August 27, 1925, plaintiff visited the property at the corner of Howard avenue and Baronne and noticed that its sign had been removed; that it notified Matthews Brothers, requesting them to replace the sign, which they have failed to do; that at the time plaintiff made the verbal lease with Matthews Brothers and at the time the sign was removed, the owner of the building was Soloman C. Bingaman, and that Matthews Brothers were acting as his agents; that plaintiff could not locate the sign, nor make the owner or his agents aforesaid replace it, nor could plaintiff recover it; that the value of said sign is $108.79; that the unlawful removal of said sign was caused by the owner or by his agents or by his or their authority; that the said sign was removed notwithstanding the warranty of the owner and of his agents that plaintiff would be undisturbed in its possession. Plaintiff prays for $193.79 damages.

Defendant pleaded that “plaintiff’s action is barred by prescription”; that his petition disclosed np right or cause of action, and a general denial of each and every paragraph of plaintiff’s petition.

There was judgment “dismissing plaintiff’s suit as in case of nonsuit”, and he has appealed.

It is sufficiently shown that plaintiff rented , from Jacobs the right to put up his sign on the gallery of the property, corner of Howard avenue and Baronne street; that the defendant, Bingaman, subsequently purchased the property through Matthews Brothers, his agents, and that they agreed to continue renting the gallery to the plaintiff, and that they received, as agents of defendant, from the plaintiff for rent of the gallery a $15.00 check, which they collected and paid over the proceeds to the defendant.

The removal of the sign is also established. The burden, however, is upon plaintiff to prove that the sign was removed, as it has been alleged, by defendant, or by someone with his authority, or for whose acts he is responsible.

There is no evidence to prove by whom the sign was removed, nor that it was removed by defendant, or by Matthews Brothers, or by his or their authority. On the contrary, the plaintiff testified as follows :

“Q. You don’t know who took the sign?
“A. No.
“Q. Do you mean to accuse Mr. Bingaman of taking this sign?
“A. No, sir.
“Q. You do not know that they (Matthews Brothers) removed it?
“A. No, I don’t.”
Benjamin Matthews testifies:
“Q. Did you order anyone to remove this sign?
“A. No.
“Q. Anyone in your employ?
“A. Not that I know of.
“Q. If anyone removed it, it was done without your knowledge or consent?
“A. Absolutely.
“Q. As far as you know you did not authorize anyone to remove it?
“A. No.
“Q. Do you know if Mr. Bingaman did?
“A. As far as I know he did not.
“Q. Did you authorize anybody to tear down that sign?
“A. No, sir.”
The defendant, Bingaman, testified:
“Q. Did you ever, at any time, authorize or employ others to remove a sign of this coal company?
“A. No, sir, I did not.
“Q. Did you authorize the removal of the gallery?
“A. No, sir.
“Q. In other words you don’t know anything about the destruction of any sign?
“A. No, sir.”

Mr. Jeff'D. Matthews testified:

“Q. Were there any repairs or construction work of any kind on these premises or gallery on the corner of Baronne and Howard avenue during those two months?
“A. There were repairs made there; I don’t know what months.
“Q. Were the repairs made under your direction?
"A. No, sir.
“Q. Under whose direction?
“A. City Architect and Mr. Russo.
“Q. Was Mr. Russo an authorized tenant of Mr. Bingaman?
“A. Yes.
“Q. But there were certain alterations or repairs or destruction of this gallery during those two months?
“A. I think so.
“Q. Made by Mr. Russo?
“A. Yes.
“Q. Is it not a fact that you spoke to some workman or contractor or subcontractor not to remove the sign, situated in this gallery during the course of tírese repairs ?
“A. Yes.
“Q. Whom did you tell that to?
“A: Russo.
“Q. And Russo was one of the tenants of Mr. Bingaman?
“A. Yes, Mr. Russo called me up, and told me the Sewerage and Water Board were there and wanted to cut off the sidewalk, and it was necessary to remove the posts, and he also said Mr. Muntz wanted the gallery removed. I told him I could not give that authority to him because other people’s property was up there and he could not move it, and whether he did it or not I don’t know. I did not see it moved.
“Q. You did not give anybody authority to move it?
“A. No, to the contrary.”

It will be seen, therefore, that there is no proof establishing who removed the sign, and that there is proof positive that neither the defendant nor his two agents authorized anyone to remove it, but, on the contrary, that they prohibited it.

But the plaintiff relies upon Article C. C. 2703 (2673), reading as follows:

“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”

Plaintiff’s theory is that Russo removed the sign; that Russo was defendant’s tenant with certain rights.to the premises”; therefore, defendant is liable for the acts of his tenant, by virtue of this article.

This argument falls for the reason that there is no evidence to prove that Russo removed the sign. It may have been removed by the Sewerage and Water Board; Muntz, the engineer, wanted the sign removed. Why did not the plaintiff .summon Muntz and Russo and thus ascertain who did it?

In the second place there is no evidence that Russo had been granted any right at all upon the gallery, or that • he claimed any. It is only against those “claiming any rights to the premises” that the lessor’s warranty extends. As to all others the lessor’s right of action 'is “against the person occasioning such disturbance”.

The acts referred to in C. C. 2703 are the tortious acts of third persons.

“A lessee is accorded by law a direct action himself against the author of such disturbances, and he should avail himself of that right of action for protection and relief. Failing to do so, he cannot throw upon his lessor the injurious results flowing from such disturbances and make him liable for the same through “an action for damages”.

Reynolds vs. Egan, 123 La. 294, 48 South. 940; C. N. 1725; 4 Dalloz Codes Ann., p. 360, note 5; 30 Dalloz, S. 228-238.

But if the defendant is liable at all it is for the damage he suffered by the illegal removal of his sign; but certainly not for the value of the sign which the tenant Russo may have appropriated. This is a tortious act of his tenant for which no law makes the lessor liable.

The case of Lazarne Levy vs. Madden, 116 La. 374, 40 South. 766, presented the question of the liability of the lessor in cases where necessary repairs are made to the leased premises.

The case of Lazarne Levy vs. Madden, La. 749, 103 South. 30, the disturbance was caused by one of the tenants to the detriment 'of the others. The defendant lessee complained that the lessor did not protect him in the peaceable enjoyment of the property leased owing to the disturbance caused by the co-lessee. In this case the lessee is attempting to hold the lessor liable because someone has tortiously deprived him, the lessee, of the possession and enjoyment of some personal property belonging to the lessee, and by him placed upon the leased premises. The two cases are entirely different.


text:
    No. 2278
    Second Circuit
    TUCK v. ATKINS, ET AL.
    (February 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 76. Where parties enter into a joint business
    enterprise, whereby one is to furnish money and the other personal services, the net profits to be divided equally between them, wages will not be allowed to the party furnishing his services nor interest to the party furnishing the money, in the absence of an agreement to that effect.
    2. Louisiana Digest — Partnership—Par. 145, 176.
    Where two parties engage in a joint business enterprise, either may sue for a final settlement between them on the termination of the enterprise.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by T. P. Tuck against J. W. Atkins and Herbert Atkins.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Clifton, F. Davis, of Shreveport, attorney for defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sued defendants to recover of them in solido the sum of $1200.00 with legal interest from judicial demand as his share of alleged not profits of a joint business enterprise entered into by him with them.

He alleged that defendants were to provide the ground and the money necessary for paying the cost of erecting two dwelling houses thereon, the land being valued at $4275.00, and that he was to superintend the work; that when completed the houses were to be sold and he was to receive one-half of the net profits, provided such profits on each house exceeded $1200.00, and if they did not then, that defendants were to receive $600.00 of the net profit on the sale of each house and plaintiff the remainder; that the cost of the two houses did not exceed $9325.00; that one of them was sold for $8500.00 and the other for $7500.00; and that there was ,a net profit on both houses of not less than $2400.00.

Defendants denied that the enterprise yielded a profit and alleged that, on the contrary, it resulted in a net loss of $135.00.

They further allege that the ground was put into, the enterprise at the value of $4500.00; that the price for which the houses were sold was paid partly in promissory notes; that by agreement between defendants and plaintiff these notes were sold at a discount of $1020.00; that the cost of labor and material used in the construction of the houses amounted to $9857.06; that a commission of $250.00 had been paid on the sale of the houses; that the money used in the enterprise was borrowed from a bank and interest amounting to $443.33 was paid for the loan; and jhat other items of expense, namely; revenue stamps, $20.00; fixing yard, $25.00; advertisements, $20.00, had increased the cost of the enterprise to $15,115.39, which, deducted from the sale price of the houses, left a net loss of $135.00.

On these issues the case was tried and there was judgment in favor of .the plaintiff for $415.83 with legal interest thereon from May 2, 1924, until paid, and defendants appealed.

OPINION

The District Judge filed a written opinion in the case, which we copy:

“Defendants were the owners of certain lots in the Gladstone subdivision of the city of Shreveport having a frontage of 90 feet. Plaintiff, a practical builder, desired to build two houses on this property, dividing same into lots of 45 feet each. He went to see J. W. Atkins, father of Herbert, some time in September, 1922, several times iri regard to the proposition, finally going to his house and submitting a written signed proposition, filed in evidence, and marked P-1. This was rejected by J. W. Atkins, who told Tuck to redraft the contract. This was done in the form of contract filed in evidence and marked P-2. A copy of this was mailed to the office but was not seen by J. W. Atkins until after one house was completed and the other about finished. It seems that after the first contract was submitted the wife of J. W. Atkins became seriously ill, succumbing shortly afterward. That J. W. Atkins did not keep up with affairs at the office, tie left Shreveport October 17 and was gone about two months.
“Herbert Atkins testifies that the second contract was brought to him after his father had gone away. He admits that he received the contract, told Tuck he would give it to his father. He admits that he is a joint owner of the property and was acting as the agent of his father. His father does not question his authority. He states in a vague way what his understanding of the contract was, but does not state clearly what was agreed to between him and Tuck. We are of the opinion that Tuck was led to believe that he was operating under the terms of the agreement that had been submitted even if same was never signed. It was never returned or repudiated. We think that defendants cannot now question its terms.
“According to it, the houses were to be built arid sold. Out of the price was first to be taken the sum of $4275.00, the value of the lots, then the total cost of the construction of the houses. Defendants then take out the sum of $600.00 additional on each house for their compensation for furnishing the finances to build said houses, arid the handling of such notes as may be handled by him im the sale' of the house. Any remainder to go to plaintiff as his compensation.
“Taking this as the agreement between the parties, rejects defendants’ claim for interest on money borrowed and loss on discount of notes.
“It seems that there were sidewalks down at the time of the agreement. As there is a conflict in testimony between Tuck and Herbert Atkins as to whether or not they should be charged as part of the cost, and the burden of proof is on Tuck. We think they should go as cost, the contract being silent on that subject.
“The answer gives the total cost as .$9857.06, while the account attached shows $9857.61 We think the itemized account is correct. We then figure the matter as follows:
“Cost of buildings..............................$ 9,857.61
“Additions .......................................... 75.00
$ 9,932.61
“Less salvage .................................... 138.44
$ 9,794.17
4,275.00 “Price of lots ....
20.00 “Revenue stamps
25.00 “Fixing yard ______
20.00 “Advertising ________
$14,134.17
"Sale price ..........................................$16,000.00
“Commission ______________________________________ 250.00
$15,750.00
14,134.17
“Profit --------------------------------------------------$ 1,615.83
“Atkins ----------------------------------;_____________ 1,200.00
“Tuck ..............................................■ _....$ -415.83
“There is accordingly judgment for the plaintiff in the sum of $415.83 with legal interest from judicial demand and all costs of this suit.”

We have carefully read the record and aré of the opinion that the judgment of the trial court is correct.

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


text:
    No. 2296
    Second Circuit
    LEE HARDWARE CO. v. BENSON
    (April 8, 1927. Opinion and Decree.)

      (Syllabus Try the Court)
    1. Louisiana Digest — Appeal—Par. 512.
    Where defendant, as appellant, puts, at issue, by general denial, a suit upon open account, and fails, without legal cause or excuse, to appear in person or by counsel at trials of the suit, in either lower or appellate courts, the maximum amount of damages allowed by law to appellee will be granted when duly prayed for.
    Southern Hardwood & Woodstock Co. vs. Seven-Eleven Auto Co., 1 La. App. 316.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by the Lee Hardware Company, Limited, against A. C. Benson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed with damages for frivolous appeal.
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.
    F. P. Hardin, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit upon open account for the sum of $622.82 with five per cent per annum interest thereon from March 4, 1924, until paid, less credits of $22.46 paid February 14, 1924, $7.00 paid February 1'9, 1924, $50.71 paid June 23, 1924, and $50.00 paid November 1, 1924.

Defendant filed an answer denying each of the allegations of the plaintiff’s petition.

Judgment was rendered in favor of the plaintiff for the amount sued for and the defendant appealed. Plaintiff has answered the appeal and asks for twenty per cent on the amount of the judgment as for frivolous appeal.

OPINION

Plaintiff proved the correctness of the account sued on. The defendant offered no evidence and made no defense in the lower court other than, filing his answer, and he has made no appearance in this court.

Under this condition and on the authority of Southern Hardwood & Woodstock Co., Ltd., vs. Seven-Eleven Auto Company, Inc., et al., 1 La. App. 316, the plaintiff is entitled to have the judgment appealed from affirmed with ten per cent on the amount thereof as damages for frivolous appeal.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with ten per cent on the amount thereof as damages for frivolous appeal.


text:
    No. 2150
    Second Circuit
    LINDSAY CO v. CHAMBERS
    (Apr. 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact, unless clearly erroneous, will be affirmed.
    Appeal from the City Court of the City of Shreveport, La. Hon. David E. Samuels, Judge.
    Action by The Lindsay Company, Inc., against J. A. Chambers.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wallace, Lyons •& Peters, of Shreveport, attorneys for plaintiff, appellee.
    E. W. & P. N. Browne; P. O. Chavez, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OP PACTS

REYNOLDS, J.

This is a suit on- an open account for a balance of $134.25, for office stationery ordered by plaintiff for defendant at the latter’s request.

Defendant denied liability and especially alleged that he did not order the quantity of stationery 'tendered to him by plaintiff; that plaintiff promised to submit a proof of the embossing and of the ¡printing and that none was submitted and that the work was unsightly and unsatisfactory.

On these issues the case was tried and there was judgment for the plaintiff and defendant appealed.

OPINION

The question to be decided in this case is one of fact, namely, whether the stationery tendered by the plaintiff to defendant and refused by him was in quantity and quality as ordered by defendant. .

J. L. Lindsay, the president of the plaintiff testified positively that the stationery was ordered by defendant and that both in quantity and quality it was as ordered by defendant.

Defendant swears positively to the contrary.

The testimony of Mr. Lindsay is corroborated by that of Mr. M. A. Reinberger, pages 28, 29, 30.

“Q. Were you present when Mr. Chambers called at the office when this matter was- — this material was ready to be delivered to him?
“A. Yes, sir.
“Q. Did Mr. Chambers make any statements in your presence about that material?
“A. Yes, sir.
“Q. What did he state?
“A. I had him back in the shipping department. We had the stuff in a big crate ready to deliver at his office. We called him on the phone t.o find out where to deliver it. He came down there and said that the embossed work was not what he wanted. I asked him about the others, and he said: ‘It is all right.’ I said, ‘Where shall we deliver it?’ He said that he was either going to Dallas or .Port Worth and that when he came back he would give us delivery instructions on it.
“Q. Did he see the stationery sitting on the floor there?
“A. Yes, sir. He said: ‘You sure have got lots of it, haven’t you?’
“Q. Did he say anything about the amount, whether there should be ten thousand or one thousand?
“A. No, sir.
“Q. Did he state-that he had not ordered that much material?
“A. No, sir. He advised me that when he came off his trip he would let us know where to deliver and I reported those instructions to the office.”

This -testimony strongly corroborates that of the president of plaintiff, Mr. Lindsay.

As to the embossed stationery, plaintiff admits it was ordered but contends it was not a first class job.

' Mr. Lindsay swears positively that it was just as defendant ordered it.

The, testimony of one of these witnesses sets off that of the other and leaves nothing proved on the point. The credibility of neither of the witnesses is 'impeached.

It therefore follows that defendant having ordered the stationery had either to accept and pay for it or prove that in quality it was not as ordered. This, defendant failed to do.

The trial court heard the witnesses testify and, observed their manner of testifying and decided the question of fact in favor of the plaintiff. We cannot say that his judgment was erroneous.

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