author: Monroe, J.

text:
    No. 13,308.
    George J. Untereiner, Syndic of the Creditors of John Ader, vs. William L. Shepard.
    Syllabus.
    1. Where no malice is shown, and it appears that the plaintiff in a provisional seizure had a case upon which he took legal advice, and that he acted thereon, only such damages will he allowed, upon its being determined that the issuance of the writ was unwarranted, as the party complaining can show were actually sustained, by reason of the particular seizure in question.
    2. Where .a suit for rent is brought before the expiration of the lease, upon the theory that the last month's rent has become constructively due, under the terms of such lease, by reason of default with 'respect to previous months, and the judgment, predicated upon the theory that there has been no such default, rejects- the demand, such judgment does not, of necessity, conclude the lessor with respect to such last month’s rent, thereafter actually falling due.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Benjamin Iiice Forman for Plaintiff, Appellant.

      Gurley & Méllen for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The plaintiff, as syndic of John Ader, claims of the defendant, damages, for the alleged wrongful seizure, by judicial process, of the property of said Ader, before his insolvency, as follows, to-wit:

Loss of trade, custom, and good will, credit and profits......$1,000 00

Loss of goods.......................................... ^00 00

Attorney’s fees ........................................ 50 00

Injury to feelings...................................... 500 00

Exemplary and punitory damages........................ 430 00

Total ...................................... $2,680 00

The defendant denies liability, and, in reconvention, claims $3Y.Y5 for rent and on some other account connected with the contract of lease for the enforcement of the obligations of which the seizure complained of was made.

The facts, as we find them from the record, are as follows, to-wit:

Upon September 10, 1890, the defendant leased, by written contract, to Ader Brothers, who were merchant tailors, the office ground floor oi the building No. 413 Carondelet street in New Orleans, for the term of one year, beginning October 1st, 1896; the price agreed on being $30.00 per month, and the contract containing the stipulation that, if the lessee should fail to pay any monthly installment the whole amount called for by the lease should be considered due. In March, 189 Y, John Ader, a member of the firm to which the property was thus leased, complained to the lessor that his brother was misappropriating the funds of the firm, and injuring its credit , and asked the lessor to make a seizure for the rent, which was past due, as a means of terminating the partnership — and the seizure was made, with the result that the firm was dissolved. John Ader paid the rent claimed, together with the costs of the suit, and it was then agreed that he should continue to occupy the premises agreeably to the terms of the lease with Ader Brothers, but upon the condition that he should furnish security. This security was never furnished, and the rent was not regularly paid, so that by September 3, 189Y, there was an unpaid balance of $5.00 upon the rent for June, and $30.00 for July, from which it followed, according to the terms of the lease, that the rent for August and September was also due and exigible, making a total of $95.00. About that time, that is to say, about September 1st, in the course of some conversation upon the subject of payment, Ader suggested that the defendant should order a suit of clothes, which he offered to make very cheap, and the defendant not only adopted the suggestion, but induced Mr. Lansing, his book-keeper, and Mr. Lansing’s son, each, to order a suit; the price of the suit ordered by the latter to be $25.00, and of the other two suits $52.00, or a total of $YY.00. There was also some negotiation concerning the renewal of the lease, which the defendant was willing to agree to, provided Ader would give security; but this he refused to do. The defendant thereupon caused a rent notice to be put up, as he was authorized to do by the current lease, but it was torn down, and was replaced, and Ader seems to have evinced a disposition to give trouble by refusing either to give security for the renewal of the lease, or to consent to vacate the premises at its expiration. Towards the middle of the month, therefore, the defendant took legal advice, and his attorneys, calling upon Mr. Ader, were informed by him in specific language that “he was busted;” that he “was not worth a cent,” and that he “intended to give Mr. Shepard all the trouble he could.” They, thereupon, wrote him a letter, of date September 13th, to the following effect, to-wit “I hereby notify you to deliver to me the premises, No. 413 Carondelet street, on the morning of the 1st of October, 1897, as' I desire our relations of landlord and tenant to cease on that day. I further notify you that I desire that you shall pay your rent, now due, on or before Thursday, the 16th of September, 1897, or on or before that day you are to deliver to me the equivalent clothes that have been ordered from you. Failing to do this, you will consider this a notice to put you in default for the amount of rent duo and owing, and now amounting to $65.00, up to the 1st of September, 1897.” One of the suits of clothes, that which had been ordered for the son of defendant’s book-keeper, was delivered, but the others were not, and no rent was paid. ITence, upon September 23rd, by the advice of his counsel, the defendant filed suit in the First Oity Court, claiming $70.00 as the balance of rent due, after deducting from the $95.00, as heretofore stated, the sum of $25.00, being the price of the suit of clothes which had been delivered. A writ of provisional seizure was issued in connection with this suit, and a deputy constable was placed in charge of the establishment. He did not, however, require Ader to leave, nor did he disturb his effects, or prevent him from receiving his customers; and a few days later, on September 28th, Ader procured the release of the seizure by giving bond. Upon the trial' of the suit in the City Court, there was judgment for Shepard, but, upon, appeal to the District Court, the judgment was reversed, and the entire demand was rejected, although it appears that, in the course of the trial, Ader tendered the owner two suits of clothes, the price of which was $52.00, and $18.00, in cash, as representing the amount of rent claimed, and admitted by him to be due. The judgment rendered was evidently the result of a misapprehension, arising, perhaps, from the manner in which the case was presented, as neither Shepard nor his counsel were placed on the stand. However that may be, and notwithstanding the judgment thus rendered, the two suits of clothes tendered by Ader were actually delivered, but the $18.00 was not delivered, and still remains unpaid. In the meanwhile, Mr. Ader, adhering to his purpose to give trouble, held possession of the premises until some days after the 1st of October, so that Shepard was obliged to allow $18.00, as the half month’s rent, to the incoming tenant, and was, therefore, made to lose that additional amount.

After Ader had finally moved, and established himself in new quarters, a seizure of his stock was made, within a fortnight, as a result of which he sued the constable and his surety, and also his own surety, on the bond which had been given for the release of the said stock from Shepard’s seizure. The suit, thus brought, found its way to this court, where the amount of damages allowed was increased from $800.00 to $600.00, and the following language, explanatory of the situation and of the conclusion reached, was used, to-wit:

“In a suit for rent, the plaintiff’s property was seized and the seizure was released on a forthcoming bond, signed by one of the defendants as surety; from the judgment against him in the magistrate’s court, plaintiff appealed, and the judgment of the lower court was reversed. Before that reversal', the plaintiff addressed his surety a note expressing thanks to him, and stating, in effect, that the appeal would not be prosecuted, but the property which had been 'seized and released on the forthcoming bond would be surrendered to settle the landlord’s claim. The surety, anxious to be released of liability on the bond, carried the note to the constable who had executed the writ of provisional seizure, but had, later, released the property on the forthcoming bond, and, at the instance of the surety, the constable, without any writ in his hands, proceeded to plaintiff’s store, and took possession of its contents, clothes, and tools and implements of plaintiff’s occupation, a merchant tailor. The testimony fixes the cost of this property at $600. It was taken by the constable, against the plaintiff’s earnest protest, and is still in possession of the constable.”
“The plaintiff’s petition sets forth the action of the surety and constable, charges malice of the defendants, that their action was wholly illegal and violent, to the great injury of the plaintiff in his business and reputation, and, besides actual damages, claims punitory damages of the surety the constable and his official bondsman, made defendants.”
****** *
“In connection with the alleged injury to plaintiff’s business and credit, we must give due consideration to his financial embarrassment resulting, as we gather from the record, in his cession to his creditors. * * * We are not inclined to give damages out of proportion to the actual injury of plaintiff and beyond the amount appropriate to mark the judicial condemnation of wrongful conduct, the basis of the present suit. Under all the circumstances, we think it proper to award the plaintiff $600.00, with the right reserved to the defendant to credit for the present value of plaintiff’s property taken by the constable.” The judgment thus rendered, it is admitted, has been paid in full, and, by reference to the statement 'at the beginning of this opinion, it will be seen that the plaintiff is here claiming $700.00, as the value of the same goods for which he was thus paid; and $1,000.00, as damages to the same business and credit for which damages were thus denied.

It is plain that he is not entitled to recover the value of the same goods twice, and more particularly is he not entitled to recover their value in this case, since the goods were delivered to him, uninjured, upon the execution of the forthcoming boind and were, thereafter, seized at the instance of the surety on that bond.

As to the alleged damages to his business and credit; there is much less reason for allowing them in this case than in the other, since the seizure made by the defendant lasted but a few days, the goods were not removed, the store was not closed, the plaintiff was not prevented from receiving, and transacting business with, his customers, and he had previously stated that “he was not worth a cent;” from which it may fairly be inferred that he had little in the way of credit to lose.

The claim for damages by reason of the injury to the plaintiff’s feelings, and for exemplary damages, is entitled to very little consideration. Only a few months before, the plaintiff had induced his laudlord to make a seizure in order to get rid of his partner in business. Thereafter, he was very irregular in his payments, and there was probably never a time when the defendant could not, with perfect propriety and safety, have seized for his rent. Towards the close of the term, and in order to help the plaintiff out, the defendant gave him an order for clothes, and induced others to do likewise, and was willing to credit the entire price upon the rent account, but the plaintiff seems to have been entirely unappreciative, and, for no other reason than that the defendant wanted to make some satisfactory arrangement about leasing the property for the ensuing year, decided to give him trouble, and so announced, virtually informing the counsel of whom the defendant took advice and whose advice he followed, that he had nothing at stake, and that they could do as they ixleased.

The judgment appealed from allowed $50.00 as fees of the attorneys by whom the writ of provisional seizure, issued at the instance of the defendant, was set aside, and, upon the other hand, allowed the defendant $22.75, on his reconventional demand, being, as we understand it, $18.00 balance of rent due, and $4.75 as the cost of replacing'a window which the plaintiff had been allowed to remove on condition that he would restore it to position at the expiration of the lease. With respect to this latter item, it has not been suggested that there is any error in the judgment. As to the claim for the $18.00, the counsel for the plaintiff contends that it was included in the rent suit, and is concluded by the judgment rejecting the demand in that suit, and the first impression is that this view of the matter is correct. Further consideration leads, however, to the conclusion that it is not correct, and ought not to be sustained. The suit for rent was brought during the month of September, and the rent for that month could only have been considered due upon the assumption that it had become constructively due under the stipulation of the lease whereby the whole amount was to be exigible in the event of default with respect to any one of the installments. The theory upon which the case was decided, it is plain, was that Shepard, upon the 15th of September, had accepted his tenant’s obligation to make three suits of clothes as an equivalent for the rent then due, that the tenant was not in default with respect to said obligation when the suit was thereafter instituted before? the expiration of the month, and hence that there was, at that time, nothing due him, and his demand was accordingly rejected. This view of the matter is sustained by the fact, which is not denied, that the two suits of clothes, which had not previously been delivered, were tendered in the course of the trial, and went into the possession of the plaintiff in the case, whilst the $18.00 in cash, has never reached him, for the reason, no doubt, that, upon the theory upon which the judgment was rendered, it was not then due. This, however, did not prevent its falling due after the institution of the suit, and, as it has never been paid, ought not to prevent its recovery now.

The judgment appealed from is, therefore, affirmed.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,830.
    Louisiana Society for the Prevention of Cruelty to Children vs. Thomas C. Moody.
    Syllabus.
    1. Article 85 of the Constitution of 1898 vests this court with jurisdiction of all cases wherein a law of the State, or an ordinance of a municipal corporation, has been declared unconstitutional, and this without regal'd to the moneyed demand of the action.
    2. But in a case where the amount involved is $2,000.00 or less, with other defenses raised this court has naught to do. It can concern itself only with the single question: Is the decision appealed from declaring the law or ordinance unconstitutional correct?
    3. As to other issues raised and determined in a ease involving $500.00 the appropriate appellate tribunal is the Court of Appeals.
    4. At the request of counsel for one charged with crime, another signs his appearance bond as security. The principal puts up a sufficient sum of money in his counsel’s hands to protect the surety from loss and then absconds. Suit against the surety is brought on the forfeited bond. Citation on the principal could not be had because his domicile is out of the State and his whereabouts unknown. The surety pleads the unconstitutionality of the statute giving the plaintiff a right of action on the bond. Held: The surety thus protected has no real interest in the result of the case; he is nominally only the defendant; the real defendant is the principal on the bond, and the real security of the bond the money on deposit. Held, further, that the defense of unconstitutionality is really that of the principal on the bond and in his interest only, and that the principal, a fugitive and at large, can not set up the unconstitutionality of the law under which he is being proceeded against on a-bond which secured his release from custody.
    J^PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      F. Rivers Richardson for Plaintiff, Appellant.

      Clegg & Quintero for Defendant, Appellee.
   The opinion fo the court was delivered by

Blanchard, J.

Act 40 of 1892 makes it a felony to detain in, or inveigle or entice into, a house of ill-fame, or assignation, a female under the age of sixteen years.

Defendant was charged with having violated this law, was arrested and arraigned before the Second Recorder’s Court of the Parish of Orleans. He applied to be admitted to bail and was released from custody on a bond of $500.

He was subsequently called for trial upon preliminary examination and failed to respond. Whereupon, in due course, his bail was regularly forfeited.

The prosecution of the defendant was instituted and conducted by the plaintiff corporation, and the latter thus became entitled to recover, in its name, the amount of the forfeited appearance bond. Act 32 of 1892; Act 60 of 1894.

The present action was, accordingly* brought by it against the surety on the bond. The allegation is made that the whereabouts of the principal, Thomas C. Moody, are unknown.

The surety pleaded an exception of res judicata and estoppel, founded upon a previous suit on the bond which had been dismissed on plea to the jurisdiction.

The exception of res judicqia was sustained and the suit dismissed.

An appeal by plaintiff to the Court of Appeals for the Parish of Orleans followed.

That tribunal reversed the judgment and remanded the cause for further proceedings in due course.

Whereupon the surety pleaded the unconstitutionality of Act No. 32 of 1892 and Act No. 60 of 1894, which acts give the present plaintiff a right of action on the bond. ■

This defense was sustained and judgment of dismissal of the suit entered up in favor of the defendant.

The appeal here followed.

The amount of the bond, for the recovery of which the suit is brought, is far below the minimum jurisdictional limit ¡of this court, but Article 85 of the Constitution of 1898 vests the court with jurisdiction of all cases wherein a law of the State has been declared unconstitutional, and this without regard to the moneyed demand of the action.

With other defenses raised, this court has naught to do. It can concern itself only1 with the single question: Is the decision of the court a qua, declaring the Acts of 1892 and 1894, supra, unconstitutional, correct?

As to other issues raised and determined in a case involving $500, the appropriate appellate tribunal is the Court of Appeals.

The Constitutional Convention thought it wise to lodge in this court the right of immediate review of any judgment by any court decreeing a statute of the State, or an ordinance of a municipal corporation, unconstitutional. This is new; it is not in the preceding constitution— that of 1879.

But the words which follow, also found in the Constitution of 1879, “and in such cases the appeal on the law and the facts shall be directly from the court in which the case originated to the Supreme Court”, are not construed as intending to give this court the right to pass judgment upon, and finally decide, other issues raised in cases where the amount involved is $2,000, or less, and passed upon by the court of the first instance.

This court has jurisdiction of “the law and the facts”, within the meaning of the constitution, in so far only as may be necessary to pass upon the constitutional 'question raised.

In the approach to the consideration of this constitutional question a barrier is suddenly encountered. It is this:

While the suit is against the surety on the appearance bond, while he is apparently the only defendant, while the principal on the bond could not be reached by citation — his domicil not being in the State (testimony of Clegg) and his whereabouts unknown — it appears from the evidence that the principal, Thomas O. Moody, through his father, deposited with the counsel who defends this cause a sum of money sufficient to protect the surety from loss, and that the surety signed the appearance bond at the request of counsel for Moody.

The surety, then, thus protected from liability or loss, has no real interest in the result of the case. He is nominally only the defendant.

The real defendant is the principal on the bond, and the real security of the bond is the money of the principal on deposit in the hands of his counsel to await the'determination of the cause. What the amount thus deposited is, is not shown, but the answer of counsel, on the stand as a witness, to the question: “Do you know how the surety is secured from liability,” was: “Of course -I do, the money was deposited with me by Dr. Moody, the father of the young man, to secure the surety from loss.”

From this we are warranted in assuming the amount will suffice to cover the judgment, including interest and costs, should the surety be cast.

The defenses, then, urged in bar of plaintiff’s recovery are really those of the principal on the bond and in his interest only.

While presented in the name of the surety, the nominal defendant, he is in point of fact, without concern in the same.

The suit, as to these defenses, must be considered from, the standpoint of the principal.

This principal is a fugitive so far as the criminal charge, out of which grew the bond, is concerned. He gave the bond to secure his release from custody. He was released. lie left the State. He has not returned to meet the charge, or to discharge the obligation of the bond. He permitted it to be forfeited. He put up the money to protect his surety.

Now, when sued (for we must, as seen, consider the suit to be against him), can he be permitted to raise the question of tire u-neonstitutionality of the law upon which plaintiff’s action is predicated? He cannot. The policy of the law and good morals alike preclude it.

A party accused of crime, who is admitted to bail, and then absconds, and whose bail bond is forfeited, is not in a position, as means of defense against an[ action on the bond, to set up the unconstitutionality of the statute upon which the suit is based.

Being a fugitive from justice he is not at liberty to contest the act of the legislature, resist its operation, and call in the aid of the judicial power to pronounce* it void as to him, his property, or his rights.

There is here presented one of those cases in which a law, even though it be unconstitutional (as to which no opinion is pronounced), must be sustained because the party who makes objection to it has precluded himself from being heard against it.

Moore vs. City of New Orleans, 32 La. Ann. 746; Am. & Eng. Ency. of Law, 2nd Ed., Vol. 6, p. 1090; see also People vs Murray, 5 Hill (N. Y.) 468; Wellington et al., Petitioners, 16 Pick. 96.

A criminal who, convicted of crime, appeals from the sentence and pending his appeal escapes from custody and is at large, has no standing in the appellate court for the hearing and consideration of his appeal. State vs. Robertson, 51 La. Ann. 160.

The principle is applicable here.

This man secured his release from custody, under a criminal charge, on a bail bond. He does not deny the bond was given and that he secured his liberty thereby. But when sued for the amount thereof he sets up the unconstitutionality of the law under which he is proceeded against on the bond. He might, perhaps, raise this defense if present; as a fugitive he can not. His surety, only nominally a defendant, as here disclosed, certainly cannot raise it.

And there is grave doubt that this surety, even if he were a real and not merely a nominal, defendant, could, while his principal is a fugitive, raise it. See 3 R. 196; 11 La. Ann. 643; 10 La. Ann. 492; 12 La. Ann. 643; 7 La. Ann. 119-120; 4 N. S. 21-25.

It follows there was error in the action of the lower court sustaining the unconstitutionality of the acts of the legislature called in question. The defense should not have been entertained.

It is, therefore, ordered and decreed that the judgment appealed from be avoided and reversed and that this cause be remanded to the court a qua for further proceedings according to law, costs of both courts to be borne by defendant and appellee.

Monroe, J., I dissent,

Watkins, J., takes no part — absent on account of illness.

Behearing refused.


author: Breaux, J.

text:
    No. 13,476.
    Mrs. Louise Dupre vs. John Jenkins.
    Syllabus.
    In an action to compel the defendant to accept a title tendered, the property, though in the name of plaintiff by title on the face, conveying it to her as dotal, was really not dotal, but paraphernal; and in consequence she had the right to sell it with the authorization of her husband. C. C. 2300.
    Although it was conveyed to her, plaintiff, by the father of her husband just prior to her marriage, the transfer was really that of her husband to her, because he was the creditor of his father, who sold him the property, but placed it in the name of his wife a day or two prior to the son’s marriage.
    It being a donation by the son to the plaintiff, who was about to become his wife, the property was paraphernal. C. C. 2338.
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

      Gustave Lemle for Plaintiff, Appellee.

      D. J. Dowers for Defendant, Apellant.
   The opinion of court- was delivered by

Breaux, J.

Plaintiff brought this suit to compel the defendant, John Jenkins, to take the title she tenders to him to property which defendant promised to buy from her, provided the title was good and valid. The property covered by the title consists of nine lots with buildings and improvements thereon.

The defendant declines to accept the property, for the reason that it is dotal property of the plaintiff, donated to her prior to her marriage by Eugene Dupre, W. E. Dupre, Edward N. Dupre, and Walter B. Dupre, as shown by the terms of the marriage contract entered into between plaintiff, Louise Dupre, and her husband, William E. Dupre, on April 21st, 1898.

The act in question contains a clause stipulating that the future wife, Louise Reine “shall have the right, during marriage, to sell any four of the nine lots of ground brought by her in marriage for the purpose of reinvesting the proceeds in the construction of a house or houses on the remaining five lots, or in the purchase of another piece of real estate.”

Defendant avers that, under the express terms of the marriage contract, the plaintiff is without right to sell more than four of the lots; and as respondent bought all nine lots, he cannot be made to accept less than he bought.

In the deed which defendant characterizes as one of donation, the following is written: — “And by reason of a verbal understanding between themselves and the said William E. Dupre, they do by these presents, give, grant, etc., to Miss Louise Reine-.”

In the marriage contract to which we have before referred, William E. Dupre, the future husband of Miss Reine, refers to the property in question as having been acquired by the latter by donation on April 21st, 1898. The property is referred to as having been acquired by Eugene Dupre at sheriffs sale under a judgment which was executed in the case of Vincent Micas vs. A. P. Dumas during the existence of the community of acquets and gains existing between Eugene Dupre and his wife, Elise Iiirsch. Two of the Dupre brothers before named testified, that their father, Eugene Dupre, was indebted to his son, William Dupre, in the sum slightly in excess of nine thousand dollars, being his share in his mother’s succession and fixed by judgment of the Civil District Court; that he, Eugene Dupre, gave this property to his son, William Dupre, in part payment of the judgment, but that at the latter’s request, the sale was made direct to Miss Louise Reine, whom he was about to marry, and that his brothers joined in the act as they each owned one-sixth of the property; that there was no intention on their part to make a donation of their interest in the property. Their father remained indebted to them for the interest conveyed to Miss Reine. A copy of the judgment in question is in evidence.

The judge of the District Court decreed, that the title tendered is good and valid, and condemned the defendant, John Jenkins, to take title and pay the price. From this judgment the defendant appeals.

Although the word “donate” is used in the first act, that in which the father, Eugene Dupre, conveyed the property to Miss Reine, yet it is made manifest by the testimony, that no donation was made. The father and the son, William, had been engaged in litigation, one against the other; one claiming an amount as having been inherited from his mother’s succession/ and the other,' the father, contesting the son’s claim. During the course of the litigation, and afterwards, there is nothing to indicate the least intention on the father’s part to make a donation to his son. Besides, it is abundantly shown, that, in reality, this first deed embraced property conveyed by the father in satisfaction of his indebtedness to his son. ILe never intended to donate .anything to his future daughter-in-law, and she 'only acquired by virtue of the father’s indebtedness to his son. She only received the consideration to which her future husband was entitled, and everything, so far as she was concerned, moved from him. It was the same as if ho had bought the property from any other third person, and in order to give it the appearance of being dotal, had directed the title to be written out as a donation, with his future wife as donee. The vendor would, none the less, have remained the vendor, though made to play the part of a donor, but in reality the husband would have been the donor.

Giving it the name of a donation does not make it one in the face of the evidence showing that it was not a donation. It being obvious that it was not a donation, then it follows that it covered the right of the future husband, which he chose to have conveyed, as just mentioned.

The court said in Bayly, Executor, vs. Becnel, 35 Ann., 778: “The designation by the future spouses in the marriage contract, of certain moneys as dotal property, does not make it such. It must appear that it falls within the definition of dotal property in the Code. A donation by the future husband to the future wife, propter nuptias, does not form part of the dowry”. In Newman & Co. vs. Eaton and Wife, 27th Ann. 342, the court said:—“Therefore, the property which is declared to be given to her in consideration of the marriage by the husband, is paraphernal”, a principle amply sustained by the textual provisions of the Civil Code. In considering the issues raised, it must be borne in mind that on the same day that Dupre, pere, conveyed to Miss Reine," William Dupre, the latter’s future husband, donated the same property to his future wife.

This, taken in connection with the oral testimony admitted, shows conclusively, that the wife received the property as a donation from her future husband.

It being paraphernal, and not dotal property, it may be sold by the wife, authorized by her husband.

For these reasons, the judgment appealed from is affirmed.


author: Nicholls, C. J. Breaux, J, and Blanchard, J., Monroe, J.

text:
    No. 13,249.
    State of Louisiana vs. Southern Pacific Company.
    Syllabus.
    1 A corporation can exercise, in another State, no power or authority which is not granted to it by the charter under which it exists, or by some other-legislative act. (130 U. S., page 1.)
    2 A railroad corporation is not authorized to receive as being for purposes incidental to its business as a common carrier, a license under Act No. 156 of 1886. The license granted thereunder contemplates a permanence in the storage of goods received which is inconsistent with the regular and legitimate business of a common carrier. The rights, duties and obligations of the latter and those of a warehouseman are separate and distinct. Railroad corporations are common carriers. Warehousemen are depositories for hire or reward.
    3. A railroad corporation is not authorized to receive for storage for hire in warehouses as being incidental to its business as a common carrier, goods and merchandize which are not received by it, under and from shipments over its road. It is authorized to receive them for storage from and under shipments from and for its roads, to the extent that such storage is in fulfillment of its obligations as a common carrier, and not otherwise.
    4 The storage of goods for hire in its warehouses by a railx-oad cox-pox-ation, is not incidental to its business when it is made under, either an express or implied special or general agreement with shippers or consignees, either before or at the time of shipment, or receipt of goods, that they should be received and held for storage for hire, either for a fixed period, or at the will of the shippers and consignees. Permanent storage is not incidental to railroad business; that business calls for a rotation in storage as immediate and prompt as the railroad corporations can make it.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      Milton J. Cunningham, Attorney General (E. Howard McCaleb, of Counsel), for Plaintiff, Appellant.

      Denegre, Blair & Denegre for Defendant, Appellee.

      Farrar, Jonas & Kruttschnitt, Amici Curiae, Representing Certain Persons, Firms and Corporations Interested in the Sugar and Rice Industries of Louisiana.
    On application for rehearing by Monroe, J.
    Statement op the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The prayer of plaintiffs petition is, that, after due proceedings, defendant be adjudged guilty of usurping, intruding into, and unlawfully exercising the franchise and privilege of public warehouseman in the City of New Orleans and State of Louisiana, and that judgment be rendered excluding said defendant from said franchise and privilege, and that defendant, the Southern Pacific Company, its officers, agents, employees and representatives, be perpetually enjoined, restrained and prohibited from conducting and carrying on, either by its officers, agents, employees, and representatives, or directly or indirectly, through the instrumentality of any other person, firm, partnership or corporation, from hereafter transacting, carrying on, or conducting, the business of a public warehouseman in the City of New Orleans, and State of Louisiana; from issuing warehouse certificates, negotiable or non-negotiable; from receiving goods, wares and merchandize, and agricultural products, on storage, for pay or reward; from leasing, purchasing or owning any building to be used as a public warehouse.

Defendant filed an exception — that plaintiff’s petition disclosed no cause of action, which was referred to the merits.

Defendant, under benefit of its exceptions, answered.

After pleading the general issue, it admitted and averred that for nearly ten years past it had been storing, for hire, in warehouses belonging to the Morgan’s Louisiana and Texas Railroad and Steamship Company, a corporation created by special act of the Legislature of this State, being Act No. 37 of the Acts of 1877, by arrangement with the owner thereof, goods and merchandize, transported or to be transported over the line of railroad and steamships of said company, consisting almost entirely of sugar and rice, and during said period had been issuing warehouse receipts, such as were authorized by Act No. 156 of the General Assembly of this State, with the condition and requirements of which this defendant had fully complied; and it further averred that said business was not'ultra vires or contrary to the policy of the State or the interests of the public; that it afforded much needed facilities to the patrons of said railroad, and was a necessary and proper incident to the business of said railroad in which it was engaged.

That while it believed its action in the premises had been entirely inira vires, nevertheless, in view of the contention made by the State in this suit, it had concluded to withdraw from said business referred to by the State, as that of a public warehouseman, and to surrender and return to the said owner the possession of said warehouse; and it had done so, and had transferred its unfinished business to the said Morgan’s Louisiana and Texas Railroad and Steamship Company.

No notice seems to have been taken of the averment in the answer: that defendant had withdrawn from the business of warehouseman, and had surrendered and returned to Morgan’s Louisiana and Texas Railroad and Steamship Company (the owner thereof) the possession of the warehouse, and had transferred its unfinished business to said corporation, but the case went to trial, resulting in a judgment in favor of the defendant, dismissing plaintiff’s demand with costs.

The State apx>ealed.

Plaintiff’s prayer was based upon allegations that the Southern Pacific Company, a foreign corporation, chartered and organized under the laws of the State of Kentucky, carrying on business and maintaining a public office in this State, and in the City of New Orleans, had usurped, intruded into, and was unlawfully holding and exercising the public franchise of carrying on and transacting the business of a public warehouseman in the City of New Orleans, and State of Louisiana.

That the Southern Pacific Company was then, and had been for more than one year past, daily, and continuously, soliciting and receiving property for storage in its warehouses, for hire and reward, in the Oity of New Orleans, issuing over the signatures of its authorized agents, public warehouse receipts, therefor to the order of the different persons entitled thereto, which said receipts purport to be issued by defendant as a public warehouseman, bearing the date of the day of their issue, and stating upon their face the name of the warehouse and its location, the description, quantity, number and marks of the property stored, and the date on which it was originally received by said defendant in its warehouse, and that it is deliverable upon the return of the receipt properly endorsed by the person to whose order it was issued, and on payment of all charges for storage, said receipts being numbered consecutively, in order of their issue.

That it had been receiving goods, wares, merchandize and agricultural products in the warehouses leased and kept by it in the Oity of New Orleans, from day to day, during the past year, charging storage therefor and delivering th%property received, and, in general, conducting and carrying on the business known as a public warehouseman, aforesaid.

That said receipts issued by it purported to be negotiable and transferable by endorsement in blank, or by special endorsement, and delivery in the same manner and to the same extent as bills of exchange and promissory notes now are.

That is was then, and had been for the past year, continuously, from day to day, carrying on a very large and extensive business as a public warehouseman in the Oity of New Orleans.

It averred that said acts and doings of said defendant, above recited, were illegal and contrary to petitioner’s public policy. That said acts and doings of defendant, above recited, were not authorized by its charter, and the same were wholly ultra vires. The defendant could not carry on, conduct or transact any business in this State, not specially authorized by its charter, and the business of public warehouseman whs not and could not be carried on by defendant under its charter.

That said business, so conducted by defendant, was contrary to and violative of the Constitution of this State, which provides that “no corporation shall engage in any business other than that expressed in its charter or incidental thereto,” and said business of public warehouseman was neither expressly authorized by the defendant's charter, nor in any manner incidental thereto.

That said public franchise and business of public warehouseman so usurped and carried on by defendant was very profitable, and the acts and doings of said defendant were highly injurious and detrimental to petitioner’s interest and the interest of her citizens, licensed and authorized by her laws to carry on business as public warehouseman in the City of New Orleans, and State of Louisiana.

That, the premises considered, petitioner was entitled to have defendant adjudged guilty of usurping and intruding into and unlawfully holding and exercising the franchise and privilege, and perpetually enjoined from carrying on, transacting and conducting said business in the City of New Orleans and State of Louisiana.

Opinion.

Had the defendant company been organized in Louisiana, under a charter precisely similar to that under which it !was incorporated in the State of Kentucky, it would not have been entitled to carry on here, as a corporation, the business of warehousing as a substantive independent business. The charter of the company did not entitle it to pursue such business in Kentucky.

It was held in Oregon Railway Company vs. Oregonian Railway Company, 130 U. S. Reports, page 1, that a corporation can exercise, in another State, no power or authority which is not granted to it by the charter under which it exists, or by some other legislative act. (See also Canada Southern Railroad Company vs. Gebhard, 109 U. S., page 537; Murfree on Foreign Corporations, Section 9, pages 10 and 11).

For a double reason, therefore, is the defendant without warrant in carrying on such business here.

The evidence shows that the defendant company is operating, in Louisiana, a connected line of railroad under leases obtained from several railroad corporations. We do not think its right to do this is an issue in this case under the pleadings. Assuming it to be properly operating sneli road, the question is submitted to us whether it has the right to receive and store goods, produce and merchandize in warehouses, for hire, in connection with its business of railroading.

Article 265, of the Constitution of 1898, declares that “no corporation shall engage in any business other than that expressly authorized in its charter or incidental thereto.”

We are of the opinion that the defendant company is not authorized to receive, as being for purposes incidental to its business as a railroad or common carrier, a license under Act No. 156 of 1886. The license granted thereunder contemplates a permanence of the storage of articles received, which is inconsistent with the legitimate ¡and regular business of a railroad corporation. (Franklin National Bank vs. Whitehead, 149 Indiana, 560; 49 N. E. Reporter, 592).

The rights, duties and obligations of a common carrier and warehouseman are separate and distinct. Railroad corporations are common carriers, while warehousemen are depositaries for hire or reward.

We are of the opinion that the defendant company is not authorized to receive for storage, for hire, in warehouses, goods or produce which have not been received by it, under and from shipments by its road, or for shipment upon its road. Wo think it authorized to receive them for storage in warehouses, under and from shipments upon its road, and for shipment by its road, to the extent that such storage is in fulfilment of its obligations, as a common carrier, and not other wise, and no longer.

We do not consider that storage of such goods and merchandize, by defendant in warehouses, for hire, is incidental to its business as a. railroad corporation and common carrier, when the storage is made under either an express or implied special or general agreement with shippers or consignees, either before or at the time of shipment, or on receipt of goods, that they should be received and held for storage, for hire, either for a fixed time or at the will of the shippers or consignees..

We have already staled that permanence in the storage is, in our opinion, inconsistent with the idea of its being incidental to the operation of a railroad corporation, or necessary for its business as a common carrier.

The fact that by availing itself of its control of switches, tracks and superior terminal facilities, defendant may offer special advantages and accommodations to shippers in storing their goods, and thereby obtain increased revenues, as a corporation, is not at all determinative of the question whether the storage is incidental to its business as a railroad corporation, or the revenues received therefrom accrue to it as a common carrier.

If such advantages and facilities enure to the particular shippers or consignees who, by agreement express or implied, can obtain the benefit of them instead of to sucessive shippers or consignees, as they would have occasion to and be entitled to utilize them, it pan scarcely be claimed that they were designed for general convenience of shippers arid consignees over and by the railroad. We think that the storage of goods, by a railroad, in its warehouses, as a matter incidental to its business as such, contemplates and looks to a rotation of storage as immediate and prompt as the railroad corporation can make it.

It should have its way open for that purpose at all times, freed from all express or implied agreements or understandings, with particular shippers or consignees. If storage for hire be made by the railroad corporation, it should only be under an enforced storage resulting from the fact that shippers have failed to receive promptly, as they should do, the shipments carried over the roa'd, and from this enforced storage the corporation itself should rid itself as quickly as possible. Inasmuch as the continuity of the relations between the parties have, by novation, been broken and changed from those of shipper or consignee and common carrier, to those of bailors and bailees, and the railroad company receives for the storage a consideration other than the regular freight rate, the storage takes on a different form and character from that which it would otherwise have, and becomes substantive, independent, and not an incidental business. To be incidental business, the storage must be preliminary, either to immediate transportation or immediate removal. (Hutchinson on Carriers, Sections 62, 63, 88, 89, 97, 351, 352, 356, 369, 378; Chicago and Rhode Island Railroad vs. Warren, 16 Illinois, 502).

Appellee has called our attention to several decisions as to what may be designated as business incidental to that of a railroad corporation, among others to that of Jacksonville Railway Company vs. Hooper, 160 U. S., 514, in which it is said that the Supreme Court of the United States referred to the keeping of a hotel by a railroad corporation as business incidental to that of operating a railroad. The action referred to was not one between the State and the corporation seeking to restrain the operations of the corporation to operations within its legitimate business, but. one in which the railroad corporation was sought to be made liable by the other party to a contract of the lease of a hotel, which the corporation had'made, and against which claim it was defending itself upon the ground that the contract was ultra vires. Having entered into this contract and received benefit from it, it was attempting to avoid pecuniary liability for that for which it had received full consideration. The question, when presented to a court under such conditions, and between such parties, is very different from what it is when urged in a direct action brought by the State. In the ease cited the court, alluding to the operation of a hotel or eating house by a railroad company, referred to this as being done “not for the purpose of making money out of such business,- but to furnish reasonable and necessary accommodations to its passengers and employees,” and the situation under which this was being done was assumed to be “the maintaining of cheap hotels or eating, houses at stated points on the railroad through a wilderness, or at the end of a railroad on a barren, unsettled beach.”

While it might be very consistently said that a railway company could, incidentally and in aid of its business as a common carrier, establish restaurants upon its cars, or eating houses on its line of way, for the convenience of passengers, it could hardly be claimed that it could establish one or two large hotels in the City of New Orleans, off its line of way, where guests are received, there to remain as long as they think proper, at hotel prices, even though by a system of omnibuses and transfer wagons, it might be attempted to keep unbroken the link as passenger and carrier, between the corporation and the guests at the hotel.

We do not think we are called on here to attempt to define the particular time and circumstances under which the relations between shippers and consignees of goods by a railroad, and the railroad companies, as a common carrier, shift to those of bailors and bailees (State ex rel. Violet vs. Johnson, 46th Ann., 85) ; it suffices to recognize the fact that thefe may be such a shifting, and, when it occurs, the storage of goods in the warehouses of the corporation, for any length of time, becomes a distinct substantive business, and can not be carried on as being incidental to its franchise as a railroad corporation. That the defendant corporation has carried on such substantive business in the past, is, we think, shown by the evidence. We think the State has the undoubted right to prevent its continuance.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the defendant corporation be and is hereby enjoined and restrained from 'taking out a license as a public warehouseman, under Act No. IS 6 of 1886, and from carrying on business as a public warehouseman for hire.

It is further ordered, adjudged and decreed that the defendant company be and it is hereby enjoined and restrained from carrying on, or pursuing, the business of warehousing for hire, as a substantive business, and that it be restricted in its storage of goods in warehouses, to storage by it, in fulfillment alone of its obligations as a common carrier.

It is further ordered that defendant pay costs in both courts.

Breaux, J, and Blanchard, J.,

while giving assent to the principle on which the decision of the majority rests, withhold concurrence on the ground that it should distinctly affirm, instead of leaving it to inference, that nothing therein contained is intended to deny to defendant corporation the right to charge a reasonable compensation or demurrage for freight received by it in its capacity as common carrier for transportation over its lines, and which can not be immediately shipped to its destination, or for freight received by transportation over its lines, which can not be immediately delivered to the consignee.

This right undoubtedly exists as incidental to the business of common carrier, though freight can not be so held and charged for beyond a reasonable time.

On Application for Rehearing.

Monroe, J.

It was not thought, by the majority of the court, that any serious doubt would arise as to the right of the defendant to charge and recover compensation for the storage, in its own warehouses, of goods left on its hands by reason of the failure of the consignee to remove the same promptly, or for the enforced storage of property handled by it in its capacity as a common carrier, but, as there appears to be some uncertainty concerning the interpretation of which the opinion and decree, heretofore handed down and entered, are properly susceptible, and as that uncertainty is shared by our brethren, who-withheld their concurrence upon that account, we think it advisable to say that it is not the meaning or intent of the judgment, as rendered, to deny the right of defendant to charge and recover compensation, under the circumstances, as hereinbefore stated, and that the difference of opinion between the members of the court was not as to whether such right exists, foi* we are all agreed that it does, but as to whether the fact of, its existence was sufficiently recognized in the opinion and decree. With this explanation, the application for rehearing is refused.


author: Nicholls, C. J. Blanchard, J.

text:
    N. 13,280.
    New Orleans, Spanish Fort and Lake Railroad Company vs. The City of New Orleans.
    Syllabus.
    A preliminary injunction is properly refused to a railroad corporation which has brought a suit against the city of New Orleans to have adjudged to belong to it a certain railroad franchise which the Council has advertised for sale— the plaintiff alleging that it had been and was still in possession of, and enjoying the franchise. (Seymour vs. Bourgeat, 12 La. 123; Morrison vs. Larkin, 26th Annual, 700.)
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

    Farrar, Jonas and KruttschniU for Plaintiff Appellant

      Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
    On the application for rehearing by Blanchard, J.
    Statement op the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff filed a petition in the Civil District Court in which it alleged that it) was incorporated on the 31st day of March, in the year 1879, by act of that date before John Bendernagel, Notary Public, under the name and style aforesaid, for the purpose of constructing, maintaining and operating a railroad from Oanal street, in the city of New Orleans, to Lake Pontchartrain, and along the lake shore, as provided in an ordinance of the city of New Orleans, No. 2264, Administration Series, and. the amendments which had been made thereto, or might thereafter be made thereto, granting the right to construct and operate said road.

That said original ordinance No. 2264, Administration Series was adopted on the 6th day of August, 1873, and granted to the Oanal Street, City Park and Lake Railroad Company, the right to lay a double track railroad, with certain privileges, over the route therein mentioned, from Canal street, at the intersection of Basin street, to the Spanish Fort. That this ordinance was subsequently amended by Ordinance No. 2548 Administration Series, Ordinance No. 2679 Administration Series and Ordinance No. 3146 Administration Series, all of which Ordinances were annexed and made part of the petition, for reference and proof.

That on the 2nd day of May, 1878, the City of New Orleans adopted Ordinance No. 4523, Administration Series, entitled an Ordinance granting the right for a Railroad, from the neutral ground on Basin street, at the junction of Canal street, etc., a copy of which ordinance was annexed and made part of the petition granting a right of way to the Canal Street City Park and Railroad Company, for twenty five years from that date to lay a single or double track, passenger and freight railroad through the following- streets; to-wit:

Commencing at the neutral ground on Basin street, Second District, at its intersection with Oanal street, thence along said neutral ground to Bienville street, thence in and along Bienville street to St. Patrick street, thence in and along St. Patrick street to the west bank of the Orleans Canal; thence along Orleans- street on the west side of the Canal to May street, near the lake shore; thence on May street to Genois street, thence on Genois street to the Bayou St. John, returning in the same street to the west bank of the Orleans Canal, thence along said bank on the west side of Orleans street, to the intersection with Bernadotte street and Metairie Road, thence along Bernadette street to its intersection with Bienville street; to Claiborne street; thence in neutral ground to Customhouse street; thence in and along Customhouse street to the neutral ground on Basin street, thence to the starting point at Oanal street.

That under and by virtue of the last clause of said Ordinance all ordinances or parts of ordinances in conflict with the foregoing, were repealed.

That the Oanal street, City Park and Lake Railroad Company to which the grant was made under Ordinance No. 2264 Administration Series, modified by Ordinance 2548, 2679 and 3146, Administration Series, was a corporation organized on May, 19th, 1873 by Act before Theodore Buisson, notary public, of which a copy was annexed.

That said Company, subsequently, and before the said Railroad was completed, became a bankrupt, and July 14th, 1877, all of its property, rights and franchises were adjudicated at bankrupt sale to Thomas IT, ITandy, and his associates, which sale was evidenced by a notarial Act to said Handy, passed before Quintero, Notary, on the 26th, day of January, 1878, the credit portion of the purchase price by said Handy for said property being represented by certain mortgage notes mentioned in the said act of sale.

That on the 31st day of January, 1878, by Act before John Bendernagel, Notary Public, the said Handy, and his associates purchasers as aforesaid, organized a new company, known as the Oanal .Street, City Park and Lake Railroad Company, and it was to this Company thus organized, to which the grant of franchise, contained in ordinance No. 4523, Administration Series, was made.

That on August 15th, 1878, by Act, before Bendernagel, Notary Public, a copy of which was annexed, Handy made formal transfer of the property and franchises of the old Company, purchased in his name by himself and associates, to the new Company, and the new Company, as part payment of the price of this transfer, assumed the mortgages contracted by Handy, in the Act of the 31st of January 1878, as aforesaid. That it was this Company which completed the said Railroad, and began the operation of the same, for the carriage of freight, and passengers.

Th.at said mortgages not being paid, the same were foreclosed in suit, No. 9486, of the Fifth District Court, styled, “Mrs. E. Stratton, et al. vs. Thomas H. Handy,” and at the said foreclosure sale, all the property, rights and franchises aforesaid, were sold to M. Schwartz and Brother, on January 28th, 1879.

. That subsequently on the 31st day of March 1879, the said Schwartz organized the New Orleans, Spanish Fort and Lake Railroad Company and by Act of date April 9th, 1879, said property was sold by M. Schwartz and Brother, to the New Orleans, Spanish Fort and Lake Railroad Company, and ever since the said date, the New Orleans, Spanish Fort and Lake Railroad, had been in possession and in operation of the said .railroad, claiming its right so to operate the same under all the ordinances aforesaid, and particularly under Ordinance No. 4525, Administration Series, and the amendments thereto subsequently adopted.

That the City of New Orleans from the date of the said transfer, to-wit: April 9th, 1879, down to and inclusive of the introduction and passage of Ordinance No. 15,054, Council Series, which was first adopted by the Council on July 26th, 1898, and finally adopted by the Council on February 21st, 1899, fully recognized petitioner as the sole and only owner of all the franchises aforesaid, and particularly the franchise granted under Ordinance, No. 4523 Administration Series. That said recognition was first made under Ordinance No. 5070, Administration Series, adopted by the City of New Orleans on the 21st day of May, 1879, a copy of which ordinance was annexed. That is was specially recognized by Ordinance No. 6275, Administration Series, adopted on December 31st, 1879, a copy of which was annexed. That in this period of nineteen years the officers of the City of New Orleans had compelled petitioner to comply with the provisions contained in Ordinance, No. 4523, Administration Series, and from time to time had issued notices to petitioner to put the streets in repair in accordance with the terms of said Ordinance. That the said City of New Orleans had several times judicially recognized .that petitioner was operating the New Orleans, Spanish Fort and Lake Railroad Company, under the provisions contained in ordinance No. 4523, Administration Series, as would more particularly appear by the mandamus proceedings taken in this Court, in suit No. 44,325, of the docket thereof, styled, “State ex rel. City of New Orleans, vs. the New Orleans, Spanish Fort and Lake Railroad Company;” and also by the proceedings in the case No. 50,242, of the Docket of this Court, styled, “State ex rel. City of New Orleans vs. The New Orleans, Spanish Fort and Lake Railroad Company.

That the present administration of the City of New Orleans now wrongfully, unjustly and without reasonable or proper cause pretends that the franchise of petitioner to operate the said Railroad as contained in the aforesaid ordinances is not governed by Ordinance No. 4523, Administration Series, which would make the same expire on the 22nd, day of May, 1903, but that the period of its franchises is governed by Ordinance No. 2264, Adopted August, 6th, 1873, and that its franchises have already expired on the 6th day of August, 1898, and acting upon this unlawful assumption the said City Council by the said Ordinance, No. 15,054, Council Series, a copy of which was annexed, had directed a sale for twenty-five years of the franchise of petitioner, with a slight modification of the route, between Claiborne and Basin street, to be made by the Comptroller, and the Comptroller had, as appears by his advertisement, annexed, offered, the said franchise for sale, at public auction, to the highest bidder in the Council chamber, on Thursday, the 22nd day of June, 1899, and would, unless restrained by the injunction of this court, and to the irreparable damage of petitioner, sell the franchises, and thereby cast a cloud upon the title of petitioner and involve petitioner in wasteful and expensive litigation, and destroy the credit of petitioner, and deprive it of the means of improving and maintaining its property in such condition as it ought to be maintained in, in order to make it of convenience to the public and profitable to petitioner.

That the said franchises were well worth to petitioner the sum of One Thousand Dollars ($1000.00) per annum, making the valuation to petitioner, the sum of four thousand dollars ($4,000.00), for the unexpired term thereof.

In view of the premises petitioner prayed that a writ of injunction issue directed to the City and to W. S. Douglass, Comptroller thereof, enjoining, prohibiting, and restraining the said City and the said W. S. Douglass, from executing or attempting to execute Ordinance No. 15,-054, Council Series, or from selling or attempting to sell, the railroad franchises therein directed to be offered for sale, on the 22nd day of June, 1899. Petitioner further prayed that the City of New Orleans through its proper officer, and W. S. Douglas, comptroller, be cited to answer, and after due proceedings had, the said preliminary injunction be made perpetual and that it be adjudged and decreed that the franchises of petitioner are governed by Ordinance No. 4523, Administration Series, and the .amendments thereof, and that the same do not expire until the 22nd day of May, 1903.

Upon the filing of this petition the Court ordered the Defendant to be notified thereof and to show cause why an injunction should not issue as xorayed for and that in the meantime a restraining order issue, until the further order of the Court.

Defendants answered the rule declaring, after pleading the general issue:

1st. — That they admitted that the New Orleans, Spanish Fort and Lake Railroad Oomxoany was incorporated by notarial act before John Bendernagel, late notary public, on the 31st day of March 1879.

2nd. — That they admitted that by Ordinance No. 2264, Administration Series, adopted on the 6th day of August, 1873, the city of New Orleans granted to the Canal Street, City Park and Lake Railroad Company, the right to lay a double track railway with certain privileges, over the route therein mentioned, from Canal street at the intersection of Basin street, to the Spanish Fort, and that said Ordinance was amended by Ordinance No. 2548, Administration Series, Ordinance 2679, A. S. and 3146 A. S.

3rd. — That they admitted that on the 22nd day of May, 1878, the City of New Orleans attempted to adopt an ordinance known as Ordinance No. 4523, Administration Series, purporting to grant a right for a railroad from the intersection of Canal and Basin streets, along the neutral ground on Basin street to Spanish Fort, for twenty-five years from said date.

4th. — -That they admitted that the Canal Street, City Park and Lake Railroad, to which the grant under ordinance No. 2264, Administration Series, amended by Ordinances Nos. 2548, 2679 and 3146, Administration Series, was made, was a corporation organized on 19th May, 1862, by act before Theodore Buisson, Notary Public.

5th. — That they admitted that said Canal Street, City Park and Lake Railroad Company became bankrupt and that on the 14th of July, 1877, all of its property rights and franchises were adjudicated at a bankrupt sale-to Thomas II. Handy and his associates, the credit portion of the purchase price paid by said Handy for said property being represented by certain mortgage notes mentioned in the act of sale.

6th. — -That they admitted that on the 31st of January, 1878, a new Railroad Company was organized under the same name as that organized by notarial act before Theodore Buisson, Notary Public, of May 19th, 1873, to-wit: The Canal Street, City Park and Lake Railroad Company which had been adjudicated bankrupt as aforesaid.

7th. — They admitted that it was to said Company organized on the 31st day of January, 1878, by an Act before John Bendernagel, that the City of New Orleans purported to grant by Ordinance No. 4523 Administration Series the franchise granted to the first Canal Street, City Park and Lake Railroad Company.

8th. — They admitted that on the 15th day of August, 1878, by Act before Bendernagel, Notary Public, said Thos. II. ITandy, transferred to said new Canal Street, City Park and Lake Railroad Company the property and franchises of the Canal Street, City Park and Lake Railroad Company, purchased by him and his associates at the' bankrupt sale aforesaid, and that said new Company assumed the payment of the mortgages contracted by said ITandy as part payment of his purchase at the bankrupt sale, said mortgages being detailed in the Notarial Act of 31st January, 1878.

9th. — They admitted that said mortgages contracted by ITandy and asssumed by the new Canal Street, City Park and Lake Railroad Company not being paid, the same were foreclosed, and at the sale made by the Sheriff were sold to M. Schwartz and Brother, on January, 28th, 1879.

10th. — They admitted that on the 31st day of March, 1879, said M. Schwartz & Brother, sold the property acquired by them at the Sheriff’s sale, as aforesaid, to the New Orleans, Spanish Fort and Lake Railroad Company.

They averred that the only franchise ever acquired by the New Orleans, Spanish Fort and Lake Railroad Company was the franchise granted to the first Canal Street, City Park and Lake .Railroad Company, by Ordinance No. 2264, Administration Series, amended by Ordinances Nos. 2548, 2679 and 3146, Administration Series, to-wit: A franchise to operate the railroad described in said ordinance, for twenty-five years from the 6th of August, 1873, being the same franchise upon which the mortgages assumed by said Thomas IT. ITandy, at the bankrupt sale of the property and franchises of the first Canal Street, City Park and Lake Railroad Company, made to said Handy on 14th July, 1877, and evidenced by Notarial Act, before Quintero, Notary, on the 26 of January, 1878, rested; being the same franchise which was purchased by M. Schwartz & Brother, on January 28th, 1879, at Sheriff’s sale, made to them, and being the same franchise which was sold by M. Schwartz & Brother to the New Orleans, Spanish Port and Lake Railroad Company, by act under date of April 9th, 1879.

They averred that said Ordinance No. 4523, was absolutely null and void, ab initio it being attempted to convey, in substance and effect, the same franchise granted by Ordinance No. 2264, A. S.

They averred that said Ordinance No. 4523 had been declared null and void at the instance of the New Orleans, Spanish Fort and Lake Railroad Company, by a final judgment of the Supreme Court of the United States in the case of the New Orleans, Spanish Fort and Lake Railroad Company vs. Delamore et als., 114 Sup. Ct. Reps., page 50, and that said judgment constitutes res judicata and estoppel against the said New Orleans, Spanish Fort and Lake Railroad Company.

They denied that the City of New Orleans, from April 9th 1879, down to the present time, recognized the New Orleans, Spanish Fort and Lake Railroad Company, as the owner of any franchise under Ordinance No. 4523, Administration Series by Ordinances No. 6070 and 6275 Administration Series but averred the truth to be that the City of New Orleans had only recognized the New Orleans, Spanish Fort and Lake Railroad Company to be the owner of the franchises granted to the first Canal Street, City Park and Lake Railroad Company.

They denied that the New Orleans, Spanish Fort and Lake Railroad Company had or could acquire any franchise by estoppel, or that any allegation in the petitions in the suits No. 44,325, entitled State ex rel. City of New Orleans vs. New Orleans, Spanish Fort and Lake Railroad Campany, and No. 50,242, State ex rel. City of New Orleans vs. New Orleans, Spanish Fort and Lake Railroad Company to the effect that said railroad company was operating under the provisions of Ordinance No. 4523 Administration Series, constituted estopped against the City of New Orleans, said City having made a judicial admission that said Railroad Company was operating under said ordinance, or gave legality or validity to said Ordinance No. 4523 Administration Series, which was and is absolutely null and void ab initio.

They averred that the New 'Orleans, Spanish Fort and Lake Railroad Company, was without cause of action herein, or entitled to the writ of Injuncton, the only franchise which they had right or title to, to-wit: The franchise granted by Ordinance No. 2264 Administration Series having expired on the 6th day of August, 1898, and Defendants averred that the City of New Orleans had full legal right to advertise and sell according to law, a franchise for an electric railway, provided for by Ordinance No. 15,054, C. S., from the intersection of Oanal and Basin streets to Lake Pontehartrain.

They therefore prayed the restraining order issued to be set aside, that the writ of injunction pendente lite prayed for be denied and that Plaintiff’s suit be dismissed at its costs. After hearing the District Court- rendered judgment dissolving the restraining order it had granted; that the rule nisi be discharged; that Plaintiff’s prayer for an Injunction be refused and dismissed.

The plaintiffs appealed suspensively from the judgment.

Opinion.

The judgment appealed from is as follows:

“Upon a careful examination of the plaintiff’s petition, and the exhibits filed therewith, and after hearing the City of New Orleans through her counsel, and also after hearing counsel for petitioner, my opinion is that the only franchise ever acquired by the plaintiff is that derived from the city ordinance No. 2264, of August 5th, 1873, and that said franchise expired by limitation August 6th, 1898, and, therefore, that petitioner is without legal right to oppose the sale advertised by the city under ordinance No. 15,054, C. S.

It is, therefore, ordered that- the restraining order of May 31st, 1899, be dissolved; the rule nisi be discharged; that the plaintiff’s prayer for an injunction be refused and dismissed at plaintiff’s costs.”

The appeal before us does not’involve a determination of the issues raised between the parties by their pleadings as to whether or not the plaintiff company, under the proceedings by which it acquired its rights, acquired the franchise which was granted to the second Oanal, City Park and Lake Railroad Company, for twenty-five years from the 22nd of May, 1878, under ordinance No. 4523. That question will be' reached and passed upon on a trial of the merits of the cause. The only matter before us now is whether the District Court erred in refusing to allow the plaintiff to hold matters in abeyance by an injunction until final judgment has been rendered.

The judicial sale made in the matter of “Mrs. E. Stratton et al. vs. Thomas H. Handy,” at which M. Schwartz & Bro. (plaintiff’s assignors) became the adjudicatee of the property thereat sold, was .not under a writ of fi. fa. issued upon a judgment which the plaintiffs in that suit had obtained against the defendant, but under a writ of seizure and sale issued in executory process in foreclosure of a mortgage which Handy had granted upon certain specified property.

The record shows that on the 14th of July, 1877, at a bankrupt sale made in the matter of the bankruptcy of the first Canal Street, City Park and Lake Railroad Company, Thomts II. Handy became the adjudicatee of the property and franchises of the bankrupt company.

In the act of sale to the purchaser, passed before Quintero, notary public, on the 26th January, 1878, the franchises purchased are minutely described and declared to be those conveyed to the company by the City of New Orleans under ordinance 2264, adopted on the 5th of August, 1873, amended by ordinance No. 2548, adopted March 24th, 1874. • The terms of sale were partly cash and partly credit. Handy secured the credit portion by special mortgage and vendor’s privilege on the property purchased.

The purchase was made evidently in contemplation of the formation of a new company, and in fact a new corporation was formed on the 21st January, 1878, by act before Bcndernagel, notary pmblie, with the same name as the former one. The charter declared that it should exist for twenty-five years, and the object of its creation was recited to be to construct and operate a railroad from Canal street to Lake Pontehartrain, thence along the lake shore, as provided in an ordinance of the City of New Orleans, No. 2264, O. S., “and the amendments which have been made thereto, or may hereafter be made, granting the right to construct and operate said railroad.”

On the 15th of August, 1878, Handy made a sale to this company of the property which he had acquired at the bankrupt sale, the description of the franchise sold being identical with that by which he had acquired. In this act, the purchaser, the second Canal Street, City Park and Lake Railroad Company, assumed and bound itself to carry out all the stipulations and agreements made by ITandy in the act before Quintero, notary public, on the 26th January, 1878.

On the 22nd of May, 1878, the City Council, by ordinance No. 4523, entitled “an ordinance granting the right for a railroad from the neutral ground on Basin street, at the junction with Canal street, in the Second District of New Orleans, to Lake Pontehartrain, with privilege of extending same along said lake shore,” granted to this new corporationj for the period of twenty-five years from that date, the right of way to lay a single or double track, passenger and freight railroad, as mentioned in the title of the ordinance.

By the 7th section of said ordinance it was provided that, at the expiration of the right of way, the road, rolling stock, equipments, depot sand fixtures, might be taken at an appraised value, to be ascertained in the manner provided for in the ordinance.

Before the expiration of this last franchise, the mortgage granted by Handy was foreclosed and the property covered by the mortgage was sold to Schwartz & Bro., who, later, transferred the same to the present plaintiff.

We do not understand the plaintiff to assert that, in the proceedings in foreclosure, there was any mention made either in the seizure or in the adjudication made under it to M. Schwartz &' Bro, or that there was any reference to the franchise made by the city on the 22nd May, 1878, to the second Oanal Street, City Park and Lake Railroad Company, or that that franchise was conveyed to Schwartz & Bro., in terms.

Their position is that the company holding that franchise at that time, the original franchise and the late one, became merged, and the foreclosure of the original one carried with it, as a consequence, or as an incident, the second franchise.

It is this claim which the District Court has held unfounded when considering it, for the purpose of guiding its conduct as to the granting of the injunction asked by the plaintiff.

We do not think it necessary, at this moment, to enter into any examination or discussion as to what the effect of the ouster of the second Oanal Street, City Park and Lake Railroad Company, from the original franchises by the foreclosure proceedings, may 'have had upon the franchise of the 22nd May, 1878, as between the city and the second company, whether the sale extinguished, at once, the later franchise, or whether the company would be entitled to resume the franchise at the termination of the original one, and hold it for five years, nor need we discuss whether Schwartz & Bro., in becoming the adjudicatee at the foreclosure sale, became bound by the stipulations in the second franchise; that the road, rolling stock, etc., should revert to the city, at its option, on the termination of the new franchise, or become bound by their purchase ipso facto to carry out all other stipulations which the parties might have thought proper to have inserted in this second franchise, or whether they could have repudiated and disclaimed, had they thought proper, being bound, beyond the terms of the original franchise.

What we are now concerned in is whether, in view of the situation shown, the plaintiff has the legal right to have the city stayed in its action until after the rights of parties should be determined by final judgment.

The plaintiffs say they will b!e very much injured by permitting matters to proceed to a sale; but what about the city’s interests in this matter ? We are bound to consider the situation of both parties. The plaintiffs have already enjoyed for two years, and will continue to enjoy for an indefinite period (for plaintiffs could discontinue their suit), privileges which they are not entitled to, if the position of the city be correct, and this possibly without being bound by the stipulations of the new franchise.

The granting of the injunction would still leave the suit to which this injunction would be merely ancillary, still pending with plaintiffs’ rights called in question and as much clouded as they would be without the injunction.

The plaintiffs say they are in full possession of the road, the rolling stock, and the franchises. The sale of the property of another person is null. A sale by the city, of franchises which really belongs to plaintiffs, would convey no title.

The adjudieatee would have to bring suit to have his rights tested, and in such suit plaintiffs would have full opportunity to defend themselves and pending the same would remain in possession.

If the right to the franchise is not in the plaintiff, but is a valuable right which the city authorities could make available for the benefit of the corporation and its citizens, it is its right and its duty to exercise the same, and it should not be stayed by an injunction, in limine, in its efforts to do so. We see no imminent immediate danger and injury to the plaintiff, as urged against which could not be urged with greater force a counter claim by the city.

In Seymour vs. Bourgeat, 12 La., 123, the plaintiff obtained an injunction to stay the sale of a tract of which'he averred himself to be the owner and in possession, advertised by the court of probates as part of the estate of Bourgeat, whose heirs being made parties prayed for the dissolution of the injunction, which was ordered. The district judge was of opinion that “a parly in possession had no right to enjoin proceedings by which his rights can not be affected; being in possession of the property, the advertising or even selling it by the court of probate could not divest him of his possession, nor disturb his title; that should a sale be effected and the purchaser attempt to exercise rights of ownership or possession, it would be then time enough to invoke the aid of the court. This sale might never be made, nor any eviction nor disturbance experienced.”

The Supreme Court on appeal affirmed this judgment.

In Morrison vs. Lamkin, 26 Ann., 700, the court said:

“If the defendant (the tax collector) has no authority to sell the lands forfeited to the State, no title will pass to the purchaser; there will be no change of ownership and plaintiff can not be injured.”

We can not say that the action of the court was erroneous, and it is hereby affirmed.

Blanchard, J., concurs in the decree.

On Application for Rehearing.

Blanchard, J.

In its application for rehearing the plaintiff company says:—

“We do not, at this time, contest the correctness of the opinion of the court on the guestion raised by it. We are concerned now only in the technical proposition that the condition of the record is such that the judgment affirmed by the court might oparate as a bar to plaintiff’s rights.”

And then, concluding its application, it says:—

“We, therefore, pray that the judgment of the lower court be amended at our costs, so as to refuse the injunction asked for without prejudice.”

The decree heretofore handed down was not intended to preclude plaintiff on any part of the ground save as to its right to the preliminary injunction for which it applied.

It is, therefore, ordered that the judgment appealed from and the former decree of this court be so modified as to refuse plaintiff’s prayer for injunction without prejudice to whatever rights the company may have on the merits of the controversy raised between it and the City of New Orleans.

Rehearing refused.


text:
    No. 13,362.
    Leon Lozes vs. Segura Sugar Company, Limited.
    Syllabus.
    1. A contract containing several clauses, evidencing a business agreement between the contracting parties, is to be viewed as a whole and the intentions of the parties gathered from all the parts thereof, to the end of giving practical effect to the instrument in the way in which such contracts are ordinarily understood.
    2. Under the terms of this contract, Held: That no completed transaction as to the sale and purchase of the growing sugar cane took place when the contract was signed; that the cane grower did not become the mere agent of the factory to cut the cane and deliver it at the place agreed upon; that the cane remained his property and was at his risk and expense until delivered, at the place named, in the condition stipulated for in the contract.
    3. But the factory was charged with the responsibility of providing at the place of delivery (the tram switch) sufficient cars, between specified dates, in which to load the cane. Failure in this particular, the cane grower being ready to deliver and offering to deliver, makes the factory liable for resulting losses.
    4. Where one party offers to perform a condition precedent, and is prevented by the other, the offer, under proper circumstances, will be treated as performance, and the conduct or omission of the other as excusing a useless effort to perform.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Yoorhies, J.

      A. N. Muller, Thomas H. Thorpe and Andrew Thorpe for Plaintiff, Appellee.

      Martin & Yoorhies and Walter J. Burhe and Bro. for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

In August, 1898, plaintiff, a grower of sugar cane, and defendant company, manufacturers of sugar from cane, entered into a contract the material portions of which were as follows:

“Said party of the second part (plaintiff), owner of cane crop now growing on Solitude Plantation, situated in the Parish of Iberia, State of Louisiana, agrees to sell and does hereby sell unto party of the first part the said cane crop, consisting of 100 acres of plant cane and 50 acres of stubble, intended for the mill.
“Said party of the second part binds himself to deliver at Lozes’ switch all said cane, which shall be sound, unfrozen cane, free from leaves, trash and dirt. The tops to be cut in the first Solid red joint below the white.
“The delivery of said cane is to start on a date to be specified by the party of the first part (defendant), but which shall be no later than the 25th day of October next and be completed no later than the 5th day of January following,- and shall be considered as made on the arrival of said cane at the sugar house scales, belonging to the party of the first part.
“The daily delivery of cane shall be determined by the party of the first part (defendant), but shall be no less than one-seventieth of the total amount contracted herein, all conditions of weather permitting.
“In consideration of which the party of the first part agrees to pay unto the party of the second part for all cane so delivered, said cane to be weighed on the scales at Segura, the sum. of 85 cents per ton of 2,000 pounds for each cent that prime yellow clarified sugar sells for during the week of delivery, first official quotations of the New Orleans Sugar Exchange to be taken each day- to make the average, which price shall constitute the price of this contract.
“The manufacture of said cane into sugar at the aforesaid sugar-house being a material consideration of this contract, it is expressly stipulated and agreed that in the event of fire, breakage of machinery or any other cause beyond the control of said party of the first part, but of such a nature as to prevent for more than six consecutive days the manufacture of said cane into sugar at the aforesaid sugarhouse, this contract to become null and void for all cane not previously delivered'at the said sugarhouse. Should, however, the mill operations be stopped but for a few days, owing to any cause, this contract to continue in full force, but the said party of the second part agrees not to hold said party of the first part in any manner responsiblle for any loss which may be incurred to the party of the second part owing to the non-reception of cane by the party of the first part during the said time of stoppage.
“Settlements to be made on every Thursday for all cane delivered up to the end of the preceding week. Freight to be deducted therefrom at 50 cents per ton.”

Plaintiff’s interpretation of this contract is that by its terms he sold to defendant his crop of sugar cane then growing on 150 acres of land cultivated by him, that the sale was complete the moment the contract was signed, that from that moment the ownership of the growing cane vested in defendant, and that, thereafter, no further obligation or responsibility rested upon him (plaintiff) except to cut the cane in season, transport it to “the switch” of the tram railway, owned by-defendant, situated on his (plaintiff’s) plantation, between the dates mentioned in the contract, and there load it into cars which defendant was to furnish.

Defendant’s interpretation is that the contract evidences nothing more than an agreement to sell and buy the growing cane crop, for future delivery, that the ownership of the crop continued in plaintiff, at whose risk the cane remained until delivered and weighed, and that the right to reject all cane not up to the contract requirement of “sound, unfrozen cane” continued in defendant up to the time of inspection at the mill.

The writing evidencing the agreement between the parties is unfortunate in that it was not drawn in such way as to express clearly and beyond cavil the intention of the signers. There are, too, conflicting declarations. In the second paragraph the obligation is put upon plaintiff to deliver the cane at the tram switch in his field, while the succeeding paragraph asselrts, in effect, the delivery is not to be considered made until the arrival of the cane at the factory.

The first paragraph of the contract, wherein it is recited that plaintiff “agrees to sell and does hereby sell’ to defendant his cane crop on 150 acres of land, standing alone would support what plaintiff contends for, viz: — a present sale and purchase and the vesting of ownership then and there in defendant. But it does not stand alone and is controlled and modified by the stipulations following.

The contract is to be viewed as a whole and the intentions of the parties are to be gathered from all the parts thereof, giving practical effect to the instrument in the way in which such contracts are ordinarily understood.

The second paragraph shows that what defendant purchased and intended to purchase was cane found to be sound and unfrozen at the time of delivery at the switch. The company was under no obligation to receive and pay for cane that was not in that condition, nor was it obliged to receive even sound cane unless the tops of the same had been “cut in the first solid, red joint below the white,” and was free from. leaves, trash and dirt.

This demonstrates that no completed transaction as to the sale and purchase of the cane took place when the contract was signed. Plaintiff was not the mere agent of defendant to cut the cane and deliver it at the switch. The cane remained his property and was at his risk and expense until delivered in the ears at the switch in the condition stipulated for in the contract.

The doubt resulting from the conflicting statements as to the place of delivery must be resolved against defendant company. The obligation plaintiff assumed in this regard was to deliver the cane at the switch. “Said party of the second part binds himself to deliver at Lozes’ switch,” etc. — is the wording of the principal clause of the contract relating to delivery.

To hold the cane was to be considered delivered only when it reached the sugarhouse is to render nugatory the clause quoted.

The cars it was to be loaded in at the switch were the cars of defendant company, running on its tram, under its control and operated by its agents. This was a delivery to the company.

It was, thereafter, the company’s business, not that of plaintiff, to haul the cars to the mill.

Plaintiff was to be charged with the freight at fifty cents a ton, it is true, but that resulted from the agreement and is not a circumstance militating' against the view that plaintiff completed his obligation as to delivery when he hauled his cane to the Switch, or stood ready to do so if the cars were forwarded. Landry vs. Adeline Sugar Factory, 52 La. Ann. 258.

This view of the nature of this contract is materially strengthened by a later clause therein which stipulates that, in the event of fire, or breaking down of the machinery, or other cause, necessitating a stoppage of the operations of the mill, the contract was to be considered no longer in force as to cane not already delivered. If the mill operations were stopped by such accidents for a few days only, the contract was to continue in force, but the cane seller was not to hold the buyer responsible for losses incurred owing to the non-reception of cane during the period of stoppage.

This militates strongly against the idea that defendant became the owner of the cane as the result of the contract signed. If it were contemplated at tire time that the company was thenceforth to be considered the owner, wherefore the stipulation about losses resulting to plaintiff during the time the mill closed down for repairs ?

Our conclusion is that the contract did not evidence; and was not intended to evidence, a present sale of the crop of cane grown by plaintiff in the sense of then and there vesting defendant with its ownership.

It is to be viewed, rather, as a contract whereby plaintiff obligated himself to sell his cane crop to defendant and to make delivery thereof to defendant, as the latter might direct, at the tram switch in plaintiff’s field, on board defendant’s cars, between the dates of October 25th and January 5th. Defendant was to receive the cane in its cars at the switch, haul the same to the mill, where it was to be weighed and plaintiff settled with for the cane as per the weights thus ascertained, at a valuation to be determined by the official quotations of the price of sugar issued by the New Orleans Sugar Exchange.

Defendant had the right to reject cane that did not come up> to the contract requirement, and where cane was sound enough to be utilized and yet not up to the contract requirement, defendant, instead of rejecting it outright, could have taken it at such a percentage of discount as it and plaintiff might have agreed on. This, it seems, was done as to some of the cars of cane received at the mill.

Not only was defendant company under obligation to receive the cane at the switch in plaintiff’s field, but was under the further obligation to have sufficient cars there in which to load the cane. If it failed in this particular, and plaintiff was ready to deliver and load into the cars and did not do so because the cars in sufficient number were not placed at the switch, -then must defendant be held liable for the loss which ensued. Delahoussaye vs. Sugar Factory, 50 La. Ann. 544; Landry vs. Sugar Factory, 52 La. Ann. 258.

The preponderance of evidence, we think, establishes that defendant did not comply fully with its obligation to furnish cars at the switch. Sufficient demand was made upon it to put it in default in this regard. Plaintiff, we find from the testimony, was ready to deliver and offered to deliver at the switch. But the ears were not provided in sufficient number.

It would have been a vain and useless thing to haul the cane to the switch unless cars were there in which to load it. Defendant can not be peniitted to assume the position that there was no delivery because the cane was not actually hauled to and dumped out at the switch. Unless ears were going- to be put there to carry it away, it were an unnecessary expense to haul the cane to the switch — an expense which defendant might have been called upon to bear.

When one party offers to perform a condition precedent, and is prevented by the other, the offer, under proper circumstances, will be treated as performance, and the conduct or omission of the other party as excusing a useless effort to perform. De La Vergne Co. vs. R. R. Co., 51 La. Ann. 1742.

Li this sense, plaintiff could well claim, as he has done in his petition, that ho delivered his cane to defendant.

He sues for a balance due him of $2,511.00 on account of cane so alleged to have been delivered, and $1,450.00 additional as, practically, damages he suffered because of defendant’s failure to perform its contract obligations.

In the view we take of the case plaintiff must be restricted tó claiming only the contract value of the cane which was not received by defendant.

The judge below came to the conclusion that 360 tons would about cover the quantity of cane- thus chargeable against defendant, and that the evidence established its contract value to have been $3.07 per ton, making a total of $1,116.00, but that from this sum should be deducted 50 cents a ton freight, which would have been the charge had the cane been hauled to the mill in defendant’s cars. Making the deduction he figured the amount due plaintiff at $936.00 and gave judgment accordingly.

Defendant appealed, and in this court, by answer to the appeal, plaintiff prays that the judgment be increased to $2,410.40.

The amount found by the District Judge, we think, does substantial justice between the parties and we are not disposed to increase the same.

An error was, however, made in deducting the 50 cents per ton freight on the 360 tons, for the reason that this freight charge is accounted for in the agreed net price of $3.07 per ton. In other words, the amount due plaintiff is the sum that the number of tons (360) multiplied by the net price ($3.07) would produce. This sum is $1,105.20.

Plaintiffs counsel say, in their brief, that subsequent to the handing down of liis opinion awarding judgment in favor of plaintiff for $936.00, the judge corrected the error and, later, signed a definitive judgment for $1,106.00

We find but one judgment in the record and that is for $936.00. Nor do we find that “$1,106.00,” as figured by counsel, is the value of 360 tons of cane at $3.07 per ton. We find that value to be $1,105.20, and to this extent, by amendment, the judgment must be increased.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be increased from nine hundred and thirty-six dollars, with legal interest from judicial demand, to one thousand, one hundred and five and 20-100 dollars, with legal interest from judicial demand, and that as thus amended the same be and is hereby affrmed at the cost of the appellant.

Rehearing refused.