author: LeBLANC, J.

text:
    No. 731
    First Circuit
    GORDY v. CALCASIEU GIN CO., INC.
    (January 26, 1931. Opinion and Decree.)
    Nugier & Gordy of Abbeville, attorneys for plaintiff, appellee.
    F. J. Samson, of Abbeville, attorney for defendant, appellant.
   LeBLANC, J.

For the reasons stated in the opinion this day handed down in the case of Walter H. Gordy v. Calcasieu Gin Co., Inc., page 408 herein, 132 So. 277, the judgment of the lower court in favor of the plaintiff herein, Mrs. Laura P. Gordy, against the defendant, Calcasieu Gin Co., Inc., in the sum of $200 is hereby affirmed. Appellant to pay all costs of this appeal.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,469
    Orleans
    BRODTMAN v. LAWRENCE
    (February 2, 1931. Opinion and Decree.)
    Daly & Hamlin, of New Orleans, attorneys for plaintiff, appellee.
    John May and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sued the defendant for the sum of $260, the alleged value of his automobile, as a result of it being completely demolished in an intersectional collision with, defendant’s car at 9:30 in the evening of December 13, 1929.

The petition charges the defendant with negligence, first in operating his automobile without its headlights burning, and, second, in driving his car at an excessive rate of speed. Defendant denied these charges, alleging ■ that the accident was caused solely by the plaintiff’s fault, and, in the alternative, pleaded contributory negligence. There was judgment below in favor of plaintiff, as prayed for, and defendant has appealed.

The record shows that the plaintiff’s Chevrolet Victoria car was being driven on Melpomene street toward the Mississippi river, and the defendant’s .Buick touring car was proceeding on the river side of Claiborne avenue in the direction of Canal street, Claiborne avenue having a neutral ground in the center and paved roadways on each side of it. When the driver of plaintiff’s car reached the neutral ground on Claiborne avenue, he stopped, blew his horn, and looked up the river side of Claiborne avenue to see if any cars were approaching, and, seeing none, proceeded across. When the plaintiff’s car reached about the center of the intersection of these streets, the defendant’s car, without giving any warning of its approach, struck plaintiff’s car in its center on the righi-hand side, overturning it, and damaging it so badly that it was a total wreck.

At the time of the accident the plaintiff’s car was being driven by one of the two young men who occupied it with the plaintiff. These three parties, as witnesses, testified that the lights on defendant’s car were not burning, and that it was being operated at an excessive rate of speed ‘ of about thirty-five' or forty miles per hour. The sole witness for the defendant was himself, and he testified that he did not hear the horn of plaintiff’s car, that his lights were burning, and that he was moving at a speed of from fifteen to twenty miles per hour.

A careful reading of the evidence convinces us that the plaintiff has established by a preponderance of the evidence both of the charges of negligence on the part of defendant, and that, therefore, plaintiff is entitled to recover.

As to the quantum, plaintiff’s mechanic testified that plaintiff had purchased the Chevrolet Victoria car about a month prior to the accident for the sum of $200, and that it had been repaired by him at an expense of $60; that the car was so damaged as a result of the collision that the cost of repairing it would exceed its value at the time of the accident; that the car was worth, at the time Of its purchase, about $250, and, with the repairs that had been made, it was worth, at the time of the accident, $260.

Defendant’s expert repair man testified that when he examined the wrecked car he found certain woodwork in a decayed condition and certain metal work in a badly rusted condition, and that the car, at the time of the accident was worth, in his opinion, about $25. He admitted on cross-examination, however, that it would cost in excess of $260 to repair the wrecked automobile.

We have reached the conclusion that the plaintiff has established the value of his car at the time of the accident as being $260.

The judgment of the lower court is correct, and it is therefore, affirmed. .

WESTERPIELD, J., absent and takes no part, HUGH C. CAGE, Judge of Civil District Court, Parish of Orleans, and Judge ad hoc, participating.


text:
    No. 730
    First Circuit
    GORDY v. CALCASIEU GIN CO., INC. (Two Cases)
    (January 26, 1931. Opinion and Decree.)
    Nugier & Gordy, of Abbeville, attorneys for plaintiffs, appellees.
    F. J. Samson, of Abbeville, attorney for defendant, appellant.
   LeBLANC, J.

These two suits against the same defendant grow out of an automobile collision which occurred just east of the limits of the town of Abbeville, on the State highway, at about six o’clock of the afternoon of August 21, 1929.

The claim of Walter H. Gordy is for damages to his automobile and for loss of its use, the whole amounting to the sum of $829. That of Mrs. Laura P. Gordy, is for personal injuries in the sum of $1,000.

The judgments in the lower court were in favor of the plaintiffs; the one in favor of Walter H. Gordy being for the sum of $500 and that in favor of Mrs. Laura P. Gordy for the sum of $200. In the appeals taken to this court by defendant, it has not asked for a reduction of the amounts allowed, nor have the plaintiffs asked for an increase. The only issue therefore is the one of liability or not on the part of the defendant because of the alleged negligence of the driver of a Chrevolet coupe automobile owned by it.

Walter P. Gordy was the owner of a Studebaker sedan automobile of the type known as “Commander,” model 1927. On the day and at the time of the accident, it was being driven by his wife, Mrs. Claudia P. Gordy, who had as her guest, and occupying the front seat with her, her sister, Mrs. Laura P. Gordy. Near the place where the collision between the two cars took place, several roads join the highway.

Mrs. Gordy and her sister were driving east out of the town of Abbeville and the driver of the car belonging to defendant, Mr. Z. J. Guidry, was driving west, toward the town. Both cars were being driven at a moderate rate and neither driver is charged with driving *at an excessive, speed. The plaintiffs charge the driver of defendant’s car with negligence in the “careless, wrongful, reckless and inexpert operation” of the Chevrolet coupe which resulted in his running into the Studebaker sedan causing .the damage complained of. The defendant places the blame for the accident on the driver of another automobile, Dr. M. A. Young, who was coming south on one of the lateral roads which intersects the highway on which they were traveling, and who,.it is alleged failed to stop before entering the highway, so as to let the approaching cars pass. It is further alleged that, on realizing that he would inevitably collide with the Young car, unless he slackened his speed, not being able to pass it in face of the approaching Studebaker, the driver of defendant’s car immediately applied the brakes with a view of stopping his car, and that the sudden application of the brakes caused it to skid to the left of the road and it was there run into by plaintiff’s car which dragged it for a distance of approximately twenty-five feet. Defendant also charges Mrs. Claudia Gordy, driver of the Studebaker with not keeping the proper lookout; in driving her car in excess of the maximum speed limit of twelve miles an hour as fixed by the ordinance of the town of Abbeville, and in not having her car under proper control and being able to stop it or swerve to her left in order to avoid the collision.

There is little, or we may say no, dispute about the facts except for the denial by Dr. Young that there was ever any danger of the Chevrolet coupe of defendant running into his car.

The testimony of Mrs. Walter Gordy is that as they were going around a curve they noticed the coupe coming from the opposite direction, and the next thing she knew it was directly in front of her, just about ten or fifteen feet from her; that she immediately put the brakes on her car but could not possibly avoid running into the coupe. Mrs. Laura Gordy says that both cars were being driven on their respective right side of the road and that when within a distance of about fifteen feet from them, the coupe suddenly swerved completely across the road and found itself directly in their path. There was no chance of them stopping, although Mrs. Walter Gordy applied her brakes, nor was there any possibility of. her driving to the left to avoid striking the coupe as it all happened so unexpectedly.

This testimony points to the negligence of Guidry in driving an automobile with defective brakes as being the proximate cause of the accident. The faulty condition of the brakes caused the steering apparatus to lock and as it did so, he lost control in the guiding of the car. He, in fact, admits as much, and acknowledged to these two ladies immediately after the accident that it was his fault. He again made the same admission to Mrs. Walter Gordy in a telephone conversation a few days afterwards, and told her that if the insurance company which carried the liability on the car he was driving would not pay for the repairs, he personally would do so.

That Guidry knew of the defective condition of the brakes on the Chevrolet coupe before the accident is borne out by the testimony of G. E. Welch, the mechanic to whom he entrusted his car for repair after the collision. This witness says that he told him to repair the damage done by the collision and particularly requested that he look over the brakes, as they had locked on him that morning. The mechanic did examine the brakes and found such a defect as might cause them to lock at any time and the car would then have a tendency to go to the left. This is just what happened at the moment of this accident. It was negligence, in view of this knowledge he had, for this agent of the defendant to operate the car in that condition on the highway, and for his negligence, defendant is answerable for the damage occasioned by the collision.

There was no error in the judgment of the lower court in either case and that in favor of Walter H. Gordy in the sum of $500 is hereby affirmed. Appellant to pay all costs of this appeal.


text:
    No. 720
    First Circuit
    STATE EX REL. BEAUREGARD PARISH POLICE JURY ET AL. v. J. H. CAIN, SHERIFF AND EX OFFICIO TAX COLLECTOR
    (January 26, 1931. Opinion and Decree.)

      John J. Robira, of Lake Charles, attorney for plaintiff, appellee.
    Ped C. Kay, of DeRidder, attorney for defendant, appellant.
   LeBLANC, J.

The defendant, J. H. Cain,, tax collector of the parish of Beauregard/ in making his rendition to the two taxing^ bodies, plaintiffs herein, of taxes collected during the months of December, 1929, and January, 1930, withheld therefrom amounts totaling $1,088.19.

The police jury of the parish, claiming that the sum of $714.84 was illegally deducted from the amount of taxes due it, and the parish school board, making the same claim in the amount of $373.35, both bring mandamus proceedings against' the defendant to have him ordered to pay over these amounts to the respective claimants.

The defendant admits having made the deductions complained of and defends his action in doing so on the ground that these amounts were justly due as attorney’s fees earned by the attorney for the tax collector in representing and defending him in various suits brought by numerous landowners to have supplemental assessments canceled and also by other landowners to have assessments on their lands reduced from $4.25 to $3 per acre.

The first number of suits referred to were brought by the Pickering Lumber Company, the Stout Realty Company, the Delta Land & Timber Company, Porter E. Harmon, and A. L. Franklin. They were tried in the district court and judgment rendered in favor of the plaintiffs in each. On appeal to the Supreme Court (Delta Land & Timber Co. v. Police Jury, 169 La. 537, 540, 541, 543, 125 So. 585, 586, 587), the judgments were affirmed. From the decision in the case of Delta Land & Timber Co. v. Police Jury, 169 La. 537, 125 So. 585, the facts appear to be that the Delta Land & Timber Company was the owner of a large body of land which had been reported by it for assessment as “denuded pine land” and had been so assessed for each of the years 1925, 1926, 1927, and 1928. A newly elected assessor in 1928, after the assessment roll for that year had been completed, learned that in the large acreage reported as- denuded, there were 3,700 acres with timber which he believed to be worth $40,125, and he accordingly, acting under section 12 of Act No. 170 of 1898, made up a supplemental roll on which he assessed the timber at the amount he believed it to be worth for each of the years 1925, 1926, 1927, and 1928. The Delta Land & Timber Company, as did the other landowners faced with a similar situation with regard to their assessments, brought suits to annul the supplemental assessments, which, as already noted, were decided in their favor; the court holding that the timber was necessarily included, without mention thereof, in the original assessment made of the land on which it was growing.

The other batch of suits referred to were brought by the Long-Bell Lumber Company, the Long-Bell Farm Land Corporation, the Peavy-Byrnes Lumber Company, and the Delta Land & Timber Company, to have the assessments on cut-over pine lands reduced from $4.25 per acre to $3. In rendering these lands they reported them at $3 and the taxing authorities increased the assessment to $4.25 per acre. Taxes were paid by the owners on the basis of the $3 valuation, and the contest therefore was over the increased assessment of $1.25 per acre. These suits were yet pending at the time of the trial of these mandamus proceedings.

The only law to which our attention is directed, and which we have been able to find, providing for the payment of attorney’s fees to the attorney for the tax collector, is section 16 of Act No. 140 of 1916. The particular part of the section which has bearing on this controversy reads as follows:

“The attorney for the tax collector shall, in all cases except as above provided represent the defendant boards and assessor, under the direction of the Attorney General, and he shall receive ten per cent, commission on the amount of taxes involved when the assessment is sustained or not reduced more than 25 per cent of the reduction claimed, and the taxes collected, which shall be assessed as a penalty against the taxpayer, and he shall receive five per cent, of the taxes involved and collected when the assessment is not sustained, to be paid over by the tax collector when such taxes and penalties are collected.”

It is observed that the law provides for payment of fees in two separate instances: First, a fee of 10 per cent on the amount of taxes involved and collected when the assessment complained of by the taxpayer is sustained or is not reduced more than 25 per cent; and, second, a fee of 5 per cent on the amount of taxes involved and collected when the assessment is not sustained. As the amount retained for httorney’s fees in these cases is 5 per cent of the amount of taxes collected, it was with regard to the fees provided for in the second instance that the law was invoked.

Referring back to the first lot of suits defended by the attorney for the tax collector, it will be noted that the object of the plaintiffs was not to reduce the assessments, but to annul the supplemental assessments of timber which had already been assessed and on which taxes had already been paid. As the trial judge correctly remarked in his reasons assigned for judgment:

“There is a vast difference between an action to reduce an assessment, and an action to annul an assessment on the ground of prior payment of taxes on property involved in the contested assessment. In the first case the attorney for the tax collector is authorized to represent the taxing authorities, under certain circumstances. In the second case, there is absolutely no provision requiring or permitting the attorney in question to represent the taxing authorities.”

In the case of Tremont Lumber Co. v. Police Jury of Winn Parish, 164 La. 257, 113 So. 839, the Supreme Court had under consideration the question of the payment of attorney’s fees of the attorney for the tax collector in defending a suit brought to reduce a tax levy of 10 mills on the dollar for road bonds. The district court had rendered judgment reducing the tax one-half mill and also condemned the plaintiff to pay the tax collector’s attorney’s fee of 5 per cent on the amount of the reduction in the tax levy. The Supreme Court affirmed the judgment reducing the tax from 10 mills to 9 y2 mills as being “substantially accurate,” but reversed it insofar as it decreed the payment of the attorney’s fees, for the reason, as we view the decision, that section 16 of Act No. 140 of 1916 purported to impose attorney’s fees on an unsuccessful taxpayer, under- certain conditions, “in a suit for a reduction of the valuation made by the assessing authorities,” which was not the case in the suit before it, and which, we may add, was also not the case in the suits in which the fee is claimed in the proceedings now before us.

In the case of Crowell & Spencer Lumber Co. v. Police Jury of Natchitoches Parish, 164 La. 971, 115 So. 51, the court makes it plain that the attorney’s fees are due only on that portion of the amount of taxes which is in dispute, and not on the entire amount involved in the assessment. In the cases under consideration in these proceedings, the complaining taxpayers were successful in having canceled and annulled the supplemental assessment roll in which the amount of taxes in dispute was involved, hence there was no balance due by them on which to impose attorney’s fees.

Further reference to tbe statute indicates that section 16 provides for the payment of the attorney’s commission “when the taxes and penalties are collected.” The taxes here meant can only be understood to be those in dispute, as certainly there could be no penalty imposed against a taxpayer from whom had been collected all taxes that were legally due, as was the case with the various tax payers in these suits.

With regard to the other group of suits in the defense of which attorney’s fees were deducted, we find that the learned district judge disposed of the matter so tersely and aptly that we will adopt his reasons for doing so as our own. After reciting that the tax debtors had paid taxes on the basis of the $3 per acre assessment, and that ' the tax collector had withheld from the taxing bodies to which the taxes were due 5 per cent to cover attorney’s fees, he says:

“No fees on the taxes based on the assessment of $3 can be allowed the attorney, for that much of the assessment was not in dispute.
“No fees on taxes, based on the contested part of the assessment, amounting to $1.25 per acre, can be paid at this time, for two reasons. The court has not yet fixed the proper amount of the assessment, and hence it is impossible to tell what taxes still remain due, if any. The second reason is, as already pointed out, that no fees can be paid the tax collector’s attorney except from taxes actually collected on a contested assessment, maintained in part or in whole.”

As there were no attorney’s fees due, the tax collector was without right to deduct them in making his return of taxes to the plaintiffs herein, and the judgment ordering him to pay over to each of them the respective amounts claimed is correct, and it is hereby affirmed.


text:
    No. 13,484
    Orleans
    GARVEY v. LAGATTUTA
    (February 2, 1931. Opinion and Decree.)
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    Herve Racivitch, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sued the defendant on a written contract of employment dated June 7, 1929, to recover the sum of $260, as commission alleged to have been earned in connection with the purchase of certain real estate for the defendant’s account. Defendant filed an exception of no cause of action on the ground that, as plaintiff was a real estate salesman, he was without authority and capacity to enter into the contract and to bring suit, under the express provisions of Act 236 of 1920, and particularly section 15 thereof. The exception was referred to the merits, and defendant answered admitting the written contract, denying the other allegations of the petition, and specially pleading that plaintiff was without capacity, authority, or right, under the provisions of Act 236 of 1920, to enter into the contract, and to claim the alleged commission and to sue therefor. On the trial of the case on the merits there was judgment in favor of the defendant, dismissing the plaintiff’s suit. Plaintiff has appealed.

The record shows that on the trial of the case it was established by the plaintiff’s testimony, under cross-examination, that he had been in the real estate business as a licensed real estate salesman for a number of years, connected with the firm of Matthews Bros., real estate brokers, and that his real estate salesman’s license for the year 1929 was still in force and effect, not having been surrendered by him. He further testified that, although the real estate license was still extant, he had given up the real estate business during the early part of the year 1929.

The records of the Louisiana real estate board, a body created by Act 236 of 1920, were introduced in evidence by the defendant. These records showed that plaintiff had been licensed as a real estate salesman on March 19, 1925, and continuously acted as such in the employment of Matthews Bros., until May 20, 1927, from which date to June 1, 1928, he was licensed as a broker, with Sierra Realty Company, Inc.; that on August 17, 1928, he made application for a salesman’s license, which was granted, and renewed on January 1, 1929, during which period he was again employed as a salesman by Matthews Bros., real estate brokers, and that plaintiff Had not given up his license as a real estate salesman during the year of 1929.

The written contract of employment, dated June 7, 1929, whereby the defendant employed the plaintiff, shows that he undertook to purchase for the account of the defendant a certain lot of ground for the price and sum of $5,500 cash, and, in consideration of his services to be rendered in effecting the sale, the plaintiff was to be paid 4 per cent commission on the sale price. The contract was to remain good and irrevocable from June 7, 1929, to June 10, 1929. Defendant testified that the contract of employment was continued in effect by a verbal agreement between them.

When all of this evidence was before the court, counsel for the defendant renewed the exception of no cause of action and tlie trial court again referred it to the merits. After the case was submitted judgment was rendered dismissing plaintiff's suit.

Counsel for defendant has renewed his exception of no cause of action in this court, contending that the evidence shows that the plaintiff was engaged in business, as a real estate salesman, and, under the express provisions of Act 236 of 1920, was prohibited from entering into the alleged contract sued upon and was without any right, authority, or capacity, to bring this suit.

Counsel for plaintiff contends that, as plaintiff testified he had given up the real estate business in the early part of the year 1929, the contract sued upon was one of special employment, and therefore did not come within the provisions of Act 236 of 1920.

We shall discuss, first, the question of whether or not the evidence shows that the plaintiff was a licensed real estate salesman at the time the alleged agreement was made and suit was filed. The only evidence before us that he had given up his calling and employment as a real estate salesman is his own statement, unsupported by any member of the firm of Matthews Bros., his employers. On the contrary, the defendant admits that he had been engaged in the real estate business as a licensed salesman until the early part of 1929, and the records of the Louisiana real estate board conclusively show that his license was still outstanding and had never been surrendered, or canceled. In fact, counsel for plaintiff frankly states that the license had never been surrendered, or canceled, but claims that, as plaintiff had terminated his employment with the real estate broker, Matthews Bros., it was the duty of that firm, under section 13 of Act 236 of 1920, to return the salesman’s license of the plaintiff to the real estate board, and that the plaintiff cannot be penalized for the neglect of Matthews Bros, to return the license.

We observe that under this section of Act 236 of 1920, the real estate broker is required to send a copy of the letter returning the license to the real estate board to the salesman at his last known address. Plaintiff, therefore, knew that his employer, Matthews Bros., had not returned his license to the real estate board, because he does not even contend that he received any such communication from his employers. We believe it was the duty of the plaintiff, if his employers, the real estate brokers, did not take the necessary steps to return his license, to have required and forced Matthews Bros, to do so. Until such action was taken to properly surrender the license in accordance with the provisions of the act, we are of the opinion that plaintiff continued to occupy the status of a real estate salesman within the meaning and provisions of the act.

What, if any, effect would the fact that plaintiff was a real estate salesman have upon him to enter into the contract suqd upon and his capacity or right to bring the present suit? The title of Act 236 of 1920 states that it is an act “to regulate the mode and manner of conducting the affairs and business of Real Estate. * * *” Section 1 thereof provides that “it shall be unlawful for any person * * * to engage in the business or capacity, either directly or indirectly, of a real estate broker, a real estate salesman, * * * * without first obtaining a license under the provisions of this Act.” Section 2 of the act defines a real estate broker as “any person * * * who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate * * * for others, as a whole or partial vocation.” Section 2 also defines a salesman as “any person who for a compensation or valuable consideration is employed either directly or indirectly by a licensed real estate broker to sell- or offer to sell, or buy or offer to buy, or to nego tiate the purchase or sale or exchange of real estate * * * for others as a whole or partial vocation.” Then follows language which specifically provides for certain exceptions or. exemptions from the operation of the act. But, even with reference to the first exception, where an owner or lessor either individually or through an employee or representative performs any of the acts with reference to his own property, the statute provides that this service shall be performed “through an employee or representative not otherwise engaged in the real estate business.” Section 15 of the act reads as follows:

“Be it further enacted, etc., That it shall be unlawful for any real estate salesman to accept a commission or valuable consideration for the performance of any of the acts herein specified from any person, except his employer who must be a licensed real estate broker.”

From the foregoing quoted provisions it appears that a real estate salesman, in .order to practice his calling, must be employed by a real estate broker who was duly licensed as such, and must carry on his negotiations for the buying, selling, and leasing of real estate through his employer-, the broker, who alone has the right to receive the commission from the clients or patrons, and, in the event it is not paid, to enter suit upon the contracts providing for the same. The salesman has neither the right nor capacity to enter into such contracts in his own behalf, and hence would be without any right, authority, or capacity to bring a suit to recover a commission under such circumstances.

In the case of Walker v. Meyer, 167 La. 218, 220, 119 So. 26, the Supreme Court, in interpreting the provisions of section 15 of Act 236 of 1920, held that, where a licensed real estate salesman entered into a contract with the owner of realty agreeing to negotiate the sale or exchange of his property in consideration of a 4 per cent commission, without entering info the agreement in the name of the real estate broker by whom he was employed, the real estate salesman, being without any right to enter into the contract, could not, therefore, assign any better right to the broker who brought the suit, and that the suit would be dismissed, as the assignee had no greater right than the assignor.

As the plaintiff, at the time he entered into the contract with the defendant and brought suit against him, was a licensed real estate salesman, he was prohibited from entering into such a contract and accepting compensation, or commission, in connection with the negotiation or purchase of the real estate, under the provisions of section 15 of Act 236 of 1920.

We have been referred by counsel for plaintiff to the case of Bosetta v. Jacobs, 1 La. App. 277, - where a law student was permitted to recover on a verbal contract with a real estate broker who had agreed to share his commission with him. We do not believe that case to be applicable, because, first, the plaintiff there was not a real estate salesman, and, second, he was not engaged in the real estate business as a whole or partial vocation.

In the case of Sheppard v. Hulseberg (La. Sup.) 131 So. 840, decided Dec. 1, 1930, that court affirmed the judgment of this court and permitted the plaintiff to recover $100 commission, which the owner of the real estate' agreed to pay him in the event that he secured a purchaser for her property for $6,800. That case is distinguished from the present one because the plaintiff in that case was regularly employed as a foreman in one of the barns of the New, Orleans Public Service and was not a real estate salesman and was not engaged in the real estate business as a whole or partial vocation.

For the reasons assigned, we are of the opinion that the exception of no cause of action was well founded, and that the judgment of the court below dismissing the suit is correct, and it is therefore affirmed at appellant’s cost.

WESTERFIELD, J., absent and takes no part, HUGH C. CAGE, Judge of Civil District Court, Parish of Orleans, and Judge ad hoc, participating.


author: JANVIER, J.

text:
    No. 13,550
    Orleans
    LULICH v. MIHALJEVICH
    (February 2, 1931. Opinion and Decree.)

      Hubert M. Ansley, of New Orleans, attorney for plaintiff, appellant.
    B. Cuniffe, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, Lulich, and defendant, Milhaljevich, entered into an agreement for the wholesale marketing of oysters in New Orleans during the season of 1925-26. Mihaljevich was the owner or lessor of certain oyster beds, or planting grounds in Plaquemines parish and, desiring to establish his residence in the city of New Orleans, he found it advisable to enter into an arrangement with some one else to take charge of the production end of the business, and he therefore entered into an agreement with Lulich under which the latter was to secure the necessary labor and supplies and to supervise the dredging or fishing of the oysters from the beds, and to ship them to the former in New Orleans, or direct to customers. Mihaljevich was to make collections for all sales, to reimburse Lulich for all necessary expenses, and to remit to Lulich one-half of the remaining net profits.

Lulich, claiming that he has not been fairly dealt with by Mihaljevich, brings this suit and alleges that he is entitled to $1,214.32, of which $811.10 represents expenses claimed to have been incurred by him and $603.22 is said to be his share of the net profits of the venture.

Mihaljevich admits the making of the contract and that certain oysters were shipped thereunder, but contends that, as the net result of the operation, there was a profit of only $7.60. We find that defendant, in the court below, disputed the right of the plaintiff to bring suit for a specific sum, maintaining that the allegations of the petition showed that a partnership existed, and contending that, thus, a suit for an accounting was the only remedy afforded and was an essential prerequisite to a claim for a money judgment.

We are of the opinion that this exception was well founded and should have been maintained, because the allegations show beyond peradventure that the agreement entered into created a partnership and subjected the parties to the rules governing that relationship. It is true that the object of the partnership was the doing of only one thing, the marketing of a single season’s crop of oysters. Nevertheless such a joint adventure is a partnership and is governed by all the laws pertaining thereto.

However, when the exception was overruled, defendant, without reservation of his rights thereunder, answered to the merits of the controversy, after which a rather complete verbal accounting, pro and con, was rendered.

The trial court rendered judgment dismissing plaintiff’s suit and he has appealed.

The contract having been admitted, plaintiff bore the burden of proving only two things: (1) The quantity of oysters shipped, and (2) the expenses incurred by him.

Upon submission by plaintiff of proof on these points, the burden then shifted to defendant to show the total price received for the oysters and the net profits of the venture.

Matters of accounting are purely questions of fact, and it is evident tha’t no useful purpose would be served by publication of an analysis of testimony relative thereto.

We feel that plaintiff has fully sustained the burden under which he was placed, but that the defendant has not produced such convincing .evidence as should have been in his possession, and that, in many details, confirmation of his testimony is lacking. We have come to the conclusion that the gross sales made by defendant amounted to $1,816.50. We find that plaintiff also collected $120 for oysters sold by him, so that the gross sales made by both total $1,936.50. From this should be deducted plaintiff’s expenses, which amounted to $430.11. We have deducted from the 3X-penses claimed $180.99, being the total of two items which he admits he has not paid.

This leaves a net balance of $1,506.39. Plaintiff’s share of this is $662.70. On this item, however, he has only claimed $603.22. Of this sum he has received $120 from the sale of oysters, so that he is due a net balance on this item of $483.22.

As expenses he has proved $430.11, so that he is also entitled to the reimbursement of that amount. It thus appears that the total due him is $913.33, but we are convinced that he has received in cash from defendant $300, so that the net result of the entire calculation is that he is entitled to a judgment for $613.33.

The judgment appealed from is annulled, avoided, and reversed, and there is now judgment in favor of plaintiff and against defendant in the sum of $613.33, with legal interest from April 3, 1926, and for all costs.

WESTERFIELD, J., absent and takes no part, HUGH C. CAGE, Judge of Civil District Court for Parish of Orleans, and Judge ad hoc, participating.


author: MOUTON, J.

text:
    No. 736
    First Circuit
    STATE EX REL. LANDRY v. MORNING STAR BENEVOLENT ASSN.
    (January 26, 1931. Opinion and Decree.)
    Burke & Smith, of New Iberia, attorneys for plaintiff, appellee.
    Porteous R. Burke, of New Iberia, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff obtained the issuance of a mandamus against defendant association to be reinstated in its membership, coupled with a demand in the sum of $110 for doctor’s and drug bills, also for attorney’s fees for $50.

Tbe court rendered- judgment for $44 for drugs and doctor’s bills, and for $50 as attorney’s fees, perpetuating tbe writ.

In the case of State ex rel. Sonnenberg v. Board of Com’rs, Port of N. O., 149 La. 1095, 90 So. 417, tbe court under tbe defense presented, approved tbe commutation of tbe claim for tbe salary of relator with tbe demand for bis reinstatement as an employee of tbe defendant board. It is not contended in defendant’s brief that the court below bad fallen into an error, as a legal proposition, in thus basing its conclusion on tbe ruling in tbe case above cited.

Tbe complaint of counsel for defendant’s association is directed principally at tbe allowing of attorney’s fees by tbe trial court, and indirectly to tbe amount decreed of $44 on tbe item for drugs and doctor’s bill. Attorney’s fees are not recoverable when counsel is employed to assert tbe rights of complainant in tbe courts of justice, not being chargeable as costs to tbe party cast. Melancon’s Heirs v. Robichaud’s Heirs, 19 La. 357; Knott v. Gough, 10 La. Ann. 562. Tbe amount claimed for attorney’s fees must therefore be denied. There is no error, however, in tbe amount decreed for tbe drug bill and tbe physician’s services, and none is pointed out by appellant.

It is therefore ordered, adjudged, and decreed that tbe part of tbe judgment which decrees attorney’s fees be annulled and reversed; that the claim therefor be denied and rejected, and, as thus amended, the judgment be affirmed, appellee to pay tbe cost of this appeal, those below by defendant association.


text:
    No. 723
    First Circuit
    CHRISTENSEN v. OTIS
    (January 26, 1931. Opinion and Decree.)
    E. F. Gayle, of Lake Charles, attorney for plaintiff, appellee.
    C. V. Pattison, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff was employed by defendant in his greenhouse at Lake Charles. He worked there for a period of thirty weeks at $30 per week, making a total of' $900 for his services upon which he received $480, leaving a balance of $420 for which be sued and recovered judgment from defendant with legal interest from. July 1, 1929.

The only defense is one of incompetency on which is based a reconventional demand for $450 for damages to the plants of defendant.

On this issue defendant testified that some of his chrysanthemums had died, while Porter, a colored boy who worked in the greenhouse, said the plants known as Mrs. Robinson and Bessie Ross had suffered, but that the others “were all pretty good,” in which must therefore be included the chrysanthemums.

In answer to a letter written defendant by plaintiff’s attorney asking payment for the amount herein demanded, defendant answered that plaintiff had agreed to wait until January, 1930, for the balance due, and that it was his intention to pay him at that time. In his testimony he says that plaintiff left voluntarily, and there is no evidence that defendant had ever complained of his incompetency. It is obvious that there is no merit in the defense, and much less for the reconventional demand by defendant.

It is clear that no serious defense was made below, and that defendant could not have reasonably expected a reversal. In such cases it must be held that the appeal was taken for delay, entitling appellee to damages for a frivolous appeal for which he prays. Darramon v. Follin, 13 La. 426; Wilds & Co. v. Barrett & Co., 15 La. 445; Gollain v. Jamet, 16 La. 565.

As the judgment grants legal interest, 5 per cent only will be allowed plaintiff on the amount of the judgment which is the usual rule in such cases.

It is therefore ordered and decreed that the judgment be affirmed, with 5 per cent thereon as damages for a frivolous appeal, with costs.


text:
    No. 13,477
    Orleans
    FOWLES v. LOUISVILLE & NASHVILLE R. R. CO.
    (February 2, 1931. Opinion and Decree.)
    S. S. Goldman, of New Orleans, attorney for plaintiff, appellant.

      N. P. Phillips and J. H. Morrison, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit to recover the amount paid for reconditioning certain furniture alleged to have sustained damage as the result of rough handling while being transported by defendant railroad company and connecting carriers from Niagara Palls, N. Y., to New Orleans, La.

The railroad company contends that the furniture was loaded into the car at point of origin and unloaded at destination by agents or employees of plaintiff; that defendant had nothing whatever to do with either the loading or unloading; and that plaintiff has not sustained the burden placed upon her by such circumstances of showing that the damage complained of did not exist prior to the shipment and that the various articles were properly crated and packed into the car.

Judgment was rendered in the trial court in favor of the defendant, and plaintiff has appealed.

Counsel for plaintiff and appellant frankly admits that only a question of fact is involved, and that thus he is under the necessity of convincing us that the judgment appealed from is manifestly erroneous; but he courageously undertakes this task and strives diligently to show that the judge, a quo, labored under the misapprehension that there was involved a question of law and that a. determination of this question in favor of defendant made a judgment against plaintiff imperative.

In view of the fact that the trial judge gave no reasons for his judgment, we are unable to determine whether his decision was based on his analysis of the evidence or on his belief that the law applicable left him no other course; but, in the light of counsel’s frank admission that there rests on plaintiff the duty of showing that the articles were in good condition when shipped, and were • properly crated and properly loaded and, because of the fact that the evidence, as we read it, falls far short of being sufficient to discharge this burden, we cannot escape the conviction that his Honor below decided the matter on the issues of fact presented.

Since there is no dispute as to the law applicable to. a suit for damages to a shipment made under what is known as a “shipper’s load and count” bill of lading, we deem it unnecessary to do more than to merely state that where the car is furnished to the shipper who himself loads his goods, he cannot recover for damages until he has alleged and shown that the goods, when loaded, were not in the same damaged condition later complained of and that the goods were properly boxed or crated, if either appears to be necessary and customary, and were properly loaded and braced in the car.

Here the evidence of the persons who attended to the crating and loading of the articles shows that most of them were in bad condition when loaded and that the loading was not properly done. We feel that plaintiff has not successfully sustained the burden of proof under which she labored, and that therefore the decision below was correct.

The judgment appealed from is affirmed, at the cost of appellant.

WESTERPIELD, J., absent and takes no part, HUGH C. CAGE, Judge of Civil District Court, Parish of Orleans, and Judge ad hoc, participating.


author: ELLIOTT, J.

text:
    No. 718
    First Circuit
    BLACKSHEAR ET AL. v. SANDIFER
    (January 26, 1931. Opinion and Decree.)
    Coleman D. Reed, of Oakdale, attorney for plaintiffs, appellants.
    T. Arthur Edwards, of Lake Charles, attorney for defendant, appellee.
   ELLIOTT, J.

Joseph U. Blackshear, David P. Blackshear, and Roy S. Blackshear brought suit against James F. Sandifer to compel the specific performance of a written agreement entered into between them with reference to the sale of 15 shares of the capital stock of the West Bay Trading Company, Inc. The petition alleges that the stock in question belongs to the plaintiffs and is the only outstanding stock, the balance already belonging to said Sandifér; and that the transfer will make him the owner of all the stock. They allege failure and refusal on his part to carry out the written agreement, and that they have no adequate remedy at law. A copy of the agreement is annexed to and made part of their petition.

Sandifer appeared and excepted to the petition on the ground that it did not disclose a right or cause of action.

The district judge, assigning written reasons, sustained the exception and- dismissed the suit.

The plaintiffs prayed., for a rehearing. This was refused, and they then appealed.

The agreement- in question, hearing date April 24, 1930, reads as follows:

“For and in consideration of $1,500.00 J. F. Sandifer does, hereby agree to purchase all outstanding stock of West Bay Trading Co., Inc. Said outstanding stock does amount to $1,500.00 which the said Sandifer agrees to pay for at the rate of $75.00 per month, unless otherwise agreed upon.
“For and in consideration of the above said Sandifer does agree that he is and does become the sole owner of the corporation known as West Bay Trading Co., Inc. becoming the owner of the assets and assuming all outstanding debts, not to exceed $500.00. Said note to be secured by a mortgage on the store building occupied by West Bay Trading Co., Inc., and ail property owned by him adjacent thereto.
“J/'-U. Blackshear, as President, does agree -to transfer all of the outstanding stock to J. F. Sandifer.
“[Signed] J. F. Blackshear,
“Joseph U. Blackshear.’’

The district judge, citing Civil Code, arts. 1926 and 1927, and decisions of the Supreme Court, and giving further reasons, held that the plaintiffs had an adequate remedy at láw, in action for damages against the defendant, if he was at fault in not carrying out the contract.

The contract provides that the defendant is to pay $1,5.00 for this stock, at the rate of $75 per month, unless otherwise agreed upon.

The petition does not allege that the written agreement contains error or that any part of the agreement was accidentally left out. The prayer is that it be specifically enforced.

The petition, however, avers matters not contained in the agreement. For instance, it is alleged that the $1,500 was to be represented by a promissory note payable in monthly installments of $75 each; said note stipulating 6 per cent per annum interest from date until paid, and an obligation to pay 10 per cent attorney’s fees if placed in the hands of an attorney for collection. And that the following, in addition to property referred to in the contract, was to be mortgaged to secure same, to-wit: Deico lighting system; Ford automobile truck; pair of scales; iron safe. To do all that would be to enlarge the agreement, the specific performance of which is prayed for.

The only reference which the agreement makes to- notes is that in which it says: “Said notes to be secured,” etc. But the number is not stated, and the stipulation that the $1,500 is to be paid at the rate of $75 per month is subject to the provision, ‘.‘Unless otherwise agreed. upon.” . The petition does not allude to this stipulation, so it may be that some other arrangement was entered into.

- The agreement is that Sandifer is to assume 'all outstanding debts, not to exceed $500. The petition does not allude to this matter, and it may be that the debts exceed $500; if so, some other arrangement is necessary.

The above -matters are mentioned only for the purpose of showing the reason why a specific performance of a contract cannot be demanded, except in cases where it is plain that it can be done and is not granted, when an action in damages would be an adequate remedy. Civil Code, arts. 1926, 1927; State ex rel. City of New Orleans v. New Orleans & C. R. Co., 37 La. Ann. 589; City of New Orleans v. New Orleans & N. W. R. Co., 44 La. Ann. 64, 10 So. 401; Rice v. Rice, 46 La. Ann. 711, 15 So. 538; and Solomon v. Diefenthal, 46 La. Ann. 897, 15 So. 183; Pratt v. McCoy, 128 La. 570, 54 So. 1012, etc. See, also, Code Prac. art. 630 et seq. and article 1058.

The agreement on its face shows that a specific performance may not be practicable, and the rule is that the courts in this state exercise a large discretion in the matter of ordering a specific performance. The authorities cited by plaintiffs, Levine v. Michel, 35 La. Ann. 1127; City of New Orleans v. R. R. Co., 44 La. Ann. 64, 10 So. 401; Pratt v. McCoy, 128 La. 570, 54 So. 1012, do not require the relief prayed for in this. case. We agree with the lower court that no reason appears from the record why an action in. damages on the part of the plaintiffs will not afford them adequate compensation, if any damages they are entitled to against the defendant. It is a case in which the judgment appealed from should not be interfered with.

The judgment appealed from is in our opinion correct.

Judgment affirmed, without prejudice to plaintiffs’ right to bring action in damages against the defendant, if they desire to do so.

Plaintiffs and appellants to pay the cost in both courts.


text:
    No. 719
    First Circuit
    TURNER v. YOUNG
    (January 26, 1931. Opinion and Decree.)
    Coleman D. Reed, of Oakdale, attorney for plaintiff, appellee.
    John B. Kent, of Beaumont, attorney for defendant, appellant.
   MOUTON, J.

This appeal is taken from a judgment recognizing plaintiff and two minor sons entitled tq the ownership of a mare and colt, for damages as rental for their use by defendant, and maintaining a writ of sequestration issued in the case.

Plaintiff was married to J. E. Brown in 1919, who died in 1922. Two children, now minors, were born of the marriage for whom she sues as owners in indivisión with her of the property, which was acquired by her husband before his marriage. She is now the wife of James Turner by a second marriage..

The defense of Young is, that he bought the mare from one Leonard, sold it to J. E. Brown, plaintiff’s first husband, on terms of credit, who being unable to pay returned the mare to him. His position is therefore that he reacquired the property by dation en paiement from his vendee, J. E. Brown.

The preponderance of the evidence shows that the property remained in the actual possession of the plaintiff for herself individually and as tutrix of the minor heirs from the death of her first husband in 1922, to about the year 1929, a period of over eight years, when without her consent or authority, personally or as tutrix, defendant took possession of the mare and colt.

Young testifies that J. E. Brown said, being unable to pay, he would return the property, but that the mare was then on the range, and that he did not take possession. It is elementary that the giving in payment is made only by delivery. C.C. art. 2656. This principle is not disputed by learned counsel for defendant, and the citation of decisions on the subject is unnecessary. Possession not having been delivered by J. E. Brown to defendant, it remained in his widow and minor heirs;, hence the dation en paiement was not legally effected, which gave plaintiffs the right to recover the ownership of the property with the maintenance of the sequestration and rental value for its illegal use by defendant as was decreed below.


text:
    No. 742
    First Circuit
    LEDET ET AL. v. LOCKPORT POWER & LIGHT CO., INC.
    (January 26, 1931. Opinion and Decree.)

      Caillouet & Caillouet, of Houma, attorneys for plaintiffs, appellees.
    Numa P. Montet, of Thibodaux, and Howell & Deramee, of Lockport, and J. A. O. Coignet, of Thibodaux, attorneys for defendant, appellant.
   ELLIOTT, J.

Hamilton Ledet and Mrs. Ida Molaison Ledet, his wife, claim of Lockport Light & Power Company, Inc., $10,000 in damages because of the death of their son, Wilton Ledet.

One of the defendant’s high-powered wires carrying 2,300 volts of electricity, used by defendant for power and lighting purposes along the highway leading from its plant at Lockport to the Lafourche Crossing, for some reason broke and fell, so that it was hanging on a fence near the ground, close to the highway paralleling Bayou Lafourche.

Plaintiff’s son took hold of the wire near the broken end and was instantly killed by the electricity which it carried.

The plaintiffs charge that the breaking of the wire and the death of their son was due to various acts of negligence on the .part of the defendant. That the space between the poles was too great, placing too much weight on the ■ wire. That the wire was overloaded, of inferior material, and that same should have 'been insulated. That a device necessary for the purpose of cutting off the power, in case of a break, rendering the wire harmless, called a “ground detector,” necessary for the safety of the public, was not working, and they charge defendant with negligence in that it was not aware of the break for such a length, of time after it occurred as to create negligence in itself in that respect.

The petition contains other charges against the defendant, but we do not think the proper decision of the case requires that they be taken into account.

An exception of vagueness, and that plaintiffs’ (petition was not properly articulated, filed by defendant, overruled in the lower court, is not urged on appeal, and is therefore not considered.

The defendant for answer denies all the acts of negligence alleged against it by the plaintiffs. Avers that the wire in question was equipped at the time with a proper device for cutting off the power in case of a break. That it maintained a proper Inspection, and denied that it was at fault for not having sooner learned of the break.

It alleges that the wire was broken as a result of having been struck by a bolt of lightning. That when it broke it fell on a dry picket fence, and on that account, not having come in contact with the ground, the safety device called the ground detector was thereby prevented from working, and defendant thereby prevented from becoming aware of the break sooner than was received.

That plaintiffs’ son knew of the danger resulting from contact with the broken Wire; that he had been warned of the danger and advised to let it alone. That in taking hold of the wire he was meddling with it and trespassing, in spite of the warning, losing his life as the result of his own voluntary negligence in doing so.

For written reasons assigned, there was judgment in the lower court in favor of plaintiff for $10,000 as prayed for.

Defendant has appealed.

There is evidence showing that there was some rain, thunder, and lightning during the evening of August 5th, and Mr. Bertrand, superintendent and general manager of defendant, testified that the broken ends of the wire looked like a break that had been caused by lightning; but the decided preponderance of the evidence on the subject is to the effect that the break occurred and was observed by a number of people previous to the rain, thunder, and lightning, and therefore could not have been and was not caused by lightning.

The evidence does not point out the particular defect in the matter of' the erection or in the quality of the wire to which we can, point as the' cause of the break. Still it is certain that the break was due to some of the causes alleged by the plaintiffs, res ipsa loquitur.

Defendant’s contention that its wire was equipped with a proper safety device for cutting off the power in case of a break, and that it maintained a proper inspection service, is not supported by the evidence.

From between 1 and 2 o’clock p. m. on August 5, 1927, about the time the wire was first observed to be 'broken, until, say, about 5 o’clock p. m. on August 6-, 1927, which was about the time when plaintiffs’ son was killed, there elapsed nearly 30 hours, during which period of time the defendant was not aware that its wire, had broken and was hanging on a fence near the ground, adjoining the highway in a thickly populated community, charged with a deadly voltage and within reach of anybody who might take hold of it, and along which way grown people and children were passing.

‘ It is not easy to find a good excuse for leaving such a danger, for such a length of time, where it was so likely to be encountered almost every hour of the day it was there.

Defendant contends that the wire accidentally fell on and was held up off the ground by a dry fence. That if the fence had been wet or if the wire had fallen to the ground, the detector would have cut off the current and in that way given it notice of the break. •

But a witness whose veracity is not questioned testified that he noticed that the wire was broken the evening of the 5th, but the next morning he discovered that it was resting in his yard partly on a. fence, and partly, for a portion of the way, on the ground. That he raised it up off the ground with a stick and put it on the fence. We infer from this that when the wire first broke it fell to and reached the ground, just as this witness found it next morning; consequently defendant’s theory that if the broken wire had reached the ground, the grounding would have activated the safety device and cut off the power as soon as it fell, is shown not to be good.

The evidence further shows that during the evening of the day that the wire broke a cow came in contact with it on the fence and was knocked down by the current. The contact with the cow constituted a grounding, and if the safety device had been working the current would have been thereby cut off.

According to the evidence, when plaintiffs’ son took hold of the wire, it also constituted a grounding, which, had the detector operated, woud have cut off the power; but defendant received no notice of the break until after news of the death of plaintiffs’ son reached the sheriff at Thibodaux, who notified the power plant at Lockport to cut off the power, and which was the first information defendant had that its line was broken, being nearly 30 hours after the break had occurred.

It is therefore established that defendant’s wire was not equipped with a safety device, capable of cutting off the power and giving it notice when a break occurred. It is reasonable to conclude that if defendant’s wire had been equipped, as should have been done, with an efficient safety device, the life of plaintiff’s son would have been saved.

This case comes within the principle of the law which provides that:

“We are responsible, not only for the damage caused by our own act, but for that which is caused by the act of persons for whom- we are answerable, or of the things which we have in our custody.”

Civil Code, art. 2317. The modifications to which this article is subject have no modifying effect on the responsibility of the defendant for the damage resulting from its neglect in the way stated.

In Myhan & Wife v. Electric Light & Power Co., 41 La. Ann. 964, p. 968, 6 So. 799, 800, 7 L.R.A. 172, 17 Am. St. Rep. 436, the court said, referring to the duty of an electric company to an employee:

“At any rate, it was the duty of the defendant company to have known of the dangerous character and condition of the wires. The knowledge they ought to have had, the law presumes, juris et de jure, they had. Even had the company’s representatives sworn that they did not know of the same, such ignorance on their part would not have exculpated them. A superior is presumed to know, and in law knows, that which it is his duty to know, namely, whatever may endanger the person and life of his employee in the discharge of his duties.”

Plaintiffs’ son was not defendant’s employee, but in Potts v. Shreveport Belt R. R. Co., 110 La. 1, 34 So. 103, 105, 98 Am. St. Rep. 452, the court, referring to this language used in the case of Myhan & Wife v. Electric Light & Power Co., had this to say:

“These observations of the Court in the Myhan case apply with more force here by reason of the fact that Potts (the man killed) sustained no contractual relation with defendant company. He was not in its employ. He was the servant of the Telephone Company, which had the right to be upon the street with its poles and wires and servants in the lawful and legitimate pursuit of its business.”

This same reasoning is used in a number of subsequent cases. The courts of this state recognize as the duty of electric companies maintaining high-powered wires in communities where contact may be had with the people engaged in the pursuit of business or pleasure in a legitimate way and in a place where they have a right to be, that of the utmost care consistent with the practical operation of their plant.

In Hebert v. Lake Charles Ice, Light & Waterworks Co., Ltd., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505, the court maintained this principle in favor of a party who accidentally came into contact with a high-powered wire charged with a heavy voltage, which had broken as the result of a storm and fallen on one of the main streets of Lake Charles.

The court further said, page 525 of Hebert v. Lake Charles Ice, Light & Water Works Co., Ltd., 111 La., 35 So. 731, 732:

“Such a wire of an electric company, detached from the poles, and lying on the streets of a town, is, of course, out of its proper place, and those having control of it and charged with the legal duty of taking due care of it were bound to account for its being found in that condition and situation."

The duty of utmost care and prudence consistent with the practical operation of the plant in situations like the present is supported by the text of Ruling Case Law, vol. 9, subject, Electricity, sec. 13, p. 1200, etc. The doctrine appears to be eminently sound.

The main features of the present situation are very similar to those that existed in Borell v. Cumberland Telegraph & Telephone Co., et al., 133 La. 630, 63 So. 247, L.R.A. 1916D, 1064.

In that case a high-powered wire carrying a powerful voltage was maintained by the city of Crowley. The wire broke at night during a storm. The city of Crowley had installed, for the purpose of safety In case a wire should break, a device known as a “ground detector,” evidently the same kind upon which the defendant relied in the present case. The agent of the defendant testified that they had no knowledge of the break, but sent out a man early next morning to find anything that needed looking after. The evidence shows that the ground detector in that case did not work, but the man sent to look after the wire discovered that it had broken, came in contact with it, and was gravely injured. The court said, page 634 of Borell v. Cumberland Telegraph & Telephone Co. et al., 133 La., 63 So. 247, 248:

“The evidence shows that they had no knowledge of it (meaning the break); but if this condition of things had existed so long that it was their legal duty to have had knowledge of it, or if by the use of means which it was the legal duty of the defendant town to have provided but which were not provided they would have had knowledge of it, then the legal situation is as if they had such actual knowledge; ,or, in other words, the failure to have had such knowledge would then in itself constitute actionable negligence.”

In another place in the same decision, the court, referring to the device heretofore mentioned, said, page 635 of Borell v. Cumberland Telegraph & Telephone Co. et al., 133 La., 63 So. 247, 249:

“We think that the clear legal duty rested upon the defendant town to have had this instrument at its plant and to have kept it in good order and to have shut off .the current from any circuit, the wires of which were shown by this instrument to be broken. (Authorities.)
“Electrical companies are required to ‘have due regard to the existing state oí science and of the art in question.’ ”

Upon a rehearing granted, the first opinion, and from which the above language has been taken, was set aside and plaintiff’s demand rejected on the ground that he had been guilty of contributory negligence leading to his injuries; but nothing in the opinion on rehearing indicates that the court was dissatisfied with the language used concerning the duty of an electric company maintaining high-voltage wires to maintain an efficient safety device cf the kind mentioned, and that it was in addition further negligence on the part ' of an electric company maintaining such wires to leave itself without prompt information in a populous community, when a break occurs.

From Ruling Case Law, vol. 9, subject, Electricity, sec. 12, r. 1198, we excerpt the following:

“The proximate cause of an injury has been defined as that, which in a natural and continuous sequence, unbroken by any new independent cause, produces the injury, without which such injury would not have occurred, and in determining the liability of an electric company for a personal injury alleged to have been caused by its negligence, as in other actions for negligent injuries, the generally accepted test is, that negligence is not the proximate cause of an accident unless under all the circumstances the accident might reasonably have been foreseen by a person of ordinary intelligence and prudence, and that it is not enough to prove that the accident is a natural consequence of the negligence; it must also have been the probable consequence.”

Then again, section 16, p. 1206:

“This duty of using the necessary skill and prudence to prevent injury to persons coming in contact with their wires, is imposed upon electric companies, not only as regards the public generally, but also with respect to any individual engaged in a lawful occupation in a place where he is entitled to be. Such persons are not trespassers or licensees, bound to take the premises in the condition in which they find them,” etc. ‘

In this case it was defendant’s duty to have had its wires equipped with an efficient safety device, one that would work, cut off the power and render the wire harmless in case it broke and fell, as it did do, near a frequently used nighway and near enough the ground to be taken hold of by children not appreciative of the consequences of doing so.

It was negligence of the gravest kind for the defendant to have left itself without knowledge of the existence of a danger thus created, for the period of time it is shown to have existed before it received notice of the same. Defendant’s neglect in the way stated was the proximate cause of the death of plaintiffs’ son. The death and plaintiffs’ resulting damages is the direct consequence of defendant’s neglect in the way mentioned.

Defendant contends that plaintiffs’ son had been warned of the danger and was negligent, a meddler and trespasser for having voluntarily and urnecessarily reached inside of the fence and taken hold of its wire. That his death was the result of his own negligence and fault and that plaintiffs have no right xo recover on that account.

The evidence shows that plaintiffs’ son was about twelve years of age. That he had been going to school and had been promoted to the sixth grade. That the highway along which the wire ran was bordered by a ditch four or five feet wide, but which must have been very shallow.

Between the ditch and the fence there was a strip of land used as a footwalk, the width of which does not appear, but which', judging from the use which the evidence indicates was made of it, must have been four or five feet wide, maybe wider. Beyond this walk, and as a border to the property line, was the picket fence on which the wire fell and lodged, except in Emile Bourgeois’ yard, where a part of it fell to the ground. The wire at the place where plaintiffs’ son was killed was lodged on the fence.

It was shown that five boys, one of them plaintiffs’ son Wilton, ranging from six to fourteen years of age, had been engaged in play, but were at the time walking along the road returning home. One of the boys, about fourteen years of age, the eldest of the number, testifies that Wilton said to him while they were walking along the road: “Why, it’s funny that a bird can stand on that wire and it won’t do him nothing.” To which the larger boy replied: “I don’t know, but I have been told if you touch two it wih kill you.” Wilton then said: “You think one wire will do something?” To which the elder boy says he replied that it might shock him if he touched it. They went on a little further, getting near where the wire was broken, and Wilton said: "You think that wire would do something?” To which he replied, “Let’s leave it alone.” The larger boy, after making this last reply, got over the fence and went into an adjoining yard to get a drink of water. Another boy, at the time about the same age as Wilton, then took up the matter, saying, “We were still going and I turned my back to see where the rest was and I saw him (meaning Wilton) when he went in the ditch and caught the wire.” That the wire was on top of and about one inch inside the fence; that Wilton went down into the ditch, reached his hand over the fence, and caught hold of the wire about two or three feet from the end, and was instantly killed.

In Ruling Case Law, vol. 9, subject, Electricity, sec. 17, p. 1207 the author, after discussing injuries to trespassers and licensees and stating the rule that there is no liability for negligence where there is no duty of care, takes up in section 18 the rule as applied to children, saying:

“While the general rule as to trespassers or licensees is as just stated, it has often been held that in transmitting electricity, electric companies should especially take into account the thoughtlessness, inexperience, lack of judgment and misjudgment of children of tender years, and •in defining the particular duty owing £o children, some courts advance the proposition that electric companies are bound to make safe, with respect to their appliances, those places which it knows are attractive to children and where they are in the habit of playing.” See also same author, Permanent Supplement, vol. 4, subject, Electricity, same section.

In Mitchell v. I. C. R. Co., 110 La. 630, 34 So. 714, 98 Am. St. Rep. 472, the court held:

“While a boy of twelve years of age may be guilty of contributory negligence which bars recovery, he is not to be held to the same degree of care, prudence' and circumspection that a full grown person is.”

See also Westerfield et al. v. Levis Bros. et al., 43 La. Ann. 63, 9 So. 52. And Edwin T. Shally v. N. O. P. S. and S. & W. Board, 1 La. App. 770.

In this case plaintiffs’ son was on a public road where he had a right to be, and the fact that he, prompted by a venturesome and inquisitive mind natural to his age, reached over the fence, slightly beyond it, and took hold of the broken wire to see what would be the effect, does not justify holding that he appreciated the danger and was negligent for having taken hold of the wire.

In Clements & Wife v. Electric Light Co., 44 La. Ann. 692, 11 So. 51, 16 L.R.A. 43, 32 Am. St. Rep. 348, and Potts v. Shreveport Belt R. Co., 110 La. 1, 34 So. 103, 98 Am. St. Rep. 452, the court said that:

“Even in the presence of a known danger, to constitute contributory negligence, it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to it.”

The remarks of plaintiffs’ son to the older boy shows that their son did not appreciate the risk of taking hold of the wire, and as he did not appreciate the risk, he did not know the danger nor voluntarily assume the risk. Consequently his act in taking hold of the wire should not, from a legal standpoint, constitute negligence. Neither did his act in reaching over the fence, a little beyond it, in order to reach the wire, constitute meddling and trespassing.

In the Lapouyade case, 138 La. 237, 70 So. 110, 112, cited by defendant, the boy was seventeen years old, therefore five years older than plaintiffs’ son. The court in acting on that case felt that he should be held responsible for his voluntary act, in reaching up and taking hold of an uninsulated wire above the place fixed for handling the contrivance. The wire in that case was also where it had been erected by the New Orleans Railway & Light Company and where it belonged. In íhis case the broken wire was not where it had been erected, but was in a place where it constituted a deadly danger to children whose thoughtlessness, inexperience, and lack of judgment or misjudgment might prompt them to take hold of it, due to defendant’s neglect to install a safety device to cut off the power, and was left there for an unreasonable length of time;

It seems to us that lor us to hold that plaintiffs’ son was a meddler and trespasser would be to attribute to him knowledge of the danger, which he did not possess, and that he voluntarily assumed a risk which, owing to his age and inexperience, he did not appreciate. So we do not find that the case cited is a controlling authority in the present case. The court, in fact, said in the case cited:

“A different rule would have had to be applied in this case if the trespass had been so very slight as to have been purely technical; such a one as anybody might be ■.guilty of inadvertently, or even intentionally, on the assumption that no harm could ■ possibly result, and that the owner of the property would certainly not object.”

We think this statement can be appropriately applied to the case in hand.

Upon the whole we find that the lower court committed no error in holding that plaintiffs were entitled to recover, on account of the death of their son, due to the fault and negligence of the defendant.

The defendant contends that the amount of the judgment is excessive and prays that it be reduced.

We find this to be the case, and after consideration have decided to reduce the amount to $6,000, payable to the father and mother jointly.

The judgment appealed from is therefore reduced from $10,000 to $6,000, and is made payable to the plaintiffs jointly.

And as thus amended the judgment appealed from is affirmed.

Defendant to pay the cost in the lower court. Plaintiffs and appellants the cost of appeal.


text:
    No. 741
    First Circuit
    CHIASSON v. CLEMENT ET AL.
    (January 26, 1931. Opinion and Decree.)
    C. A. Morvant, of Thibodaux, attorney for plaintiff, appellee.
    Harvey Peltier, of Thibodaux, attorney for defendants, appellants.
   MOUTON, J.

In this case, which presents only issues of fact, the trial court rendered judgment for the amount claimed by plaintiff for the following reasons:

“This is a suit, to recover under a verbal contract.
“The contract contemplated the demolition of an old, and the erection of a new residence, for the sum of Six Hundred and Sixty Dollars.
“The sole dispute is whether or not the plaintiff did or did not undertake to furnish such new lumber and hardware as might be needed, after utilizing the material in the old building which belonged to the defendants — it being established that the cost of the new material was two hundred and sixty odd dollars.
“The new material was charged to the defendants’ agent, at the direction of the plaintiff, and a lien was recorded against the completed building, therefor.
“The defendants paid four hundred dollars of the contract price and notified plaintiff that they would only pay the balance, when he should have paid for the new lumber and hardware in question.
“The plaintiff alleged and testified that he had undertaken to demolish the old, and to erect the new building, and to paint and paper it, all for the price of six hundred and sixty dollars. The' defendants allege that plaintiff’s contract obligated him to furnish everything for the contract price, $660.00.
“Henry Bergeron, the father of one of the defendants, testified that he made the bargain with plaintiff, and that plaintiff was to furnish everything. He insists that, by ‘everything’ the parties meant to include any new material that should be needed in addition to that which might be utilized from the old building, except plumbing which he says was not mentioned.
“Mrs. Bergeron, his wife, who says that she heard a part of the final agreement with plaintiff, corroborates her husband’s version. And both aver that they felt able to pay only a limited amount (Bergeron was, it seems, acting in behalf of his daughter and her husband), and that they would not have undertaken the erection of a new building, had they not understood that the price, $660.00, covered ‘everything’ except the plumbing which it seems that they had already ordered from Sears-Roebuck. However, it does not satisfactorily appear that ‘plumbing’ was ever mentioned in their negotiations, or that there was any specific exemption of it as an expense that was to be assumed by the plaintiff under the heading of ‘everything.’ Apparently, they did not view it as constituting a feature of a ‘completed new structure,’ but rather as an added convenience which they, themselves, chose to install.
“They both admit that, without protest, they paid for new gutters and for their installation — though the old building was admittedly equipped with gutters and, presumably, the new one should be similarly equipped. Though the furnishing of gutters for the new building would apparently have come within defendants’ interpretation of the term ‘everything,’ Mr. Bergeron explains his failure to insist that plaintiff bear the cost and installation thereof, by saying that it was a small matter and that he chose to pay it, rather than to ‘make a point’ of it with plaintiff. Ordinarily, ‘everything’ would be held to have included gutters on such a building under the contract as testified to by Mr. Bergeron, as well as the new lumber and door-locks and hinger now insisted upon.
“As usual in disputes over the real terms of verbal contracts between laymen, the parties are hopelessly at variance as to the exact agreed stipulations — otherwise, litigation would probably not have been resorted to.
“As against the version of Mr. Bergeron and his wife, the plaintiff testifies that, aside from the actual work which necessarily includes laborers employed, he only undertook to furnish the paint and paper, for which he had a specific bid from a third person, $260.00. To this he added $400.00 to cover his own time and the needed labor. In other words, the painting and papering was to cost $260, to go to the third person, while he, himself, was to get four hundred dollars — of which facts, he says he informed Mr. Bergeron.
“He also testifies that Mr. Bergeron first wanted a larger building, including a new roof, which he, the plaintiff, offered to undertake, including papering and painting, for eight hundred dollars — at the same time telling Mr. Bergeron that the roof and new lumber would cost him, Bergeron, about $360.00.
“That Mr. Bergeron then sought an estimate on a smaller building, without a new roof; and that he reduced his estimate, or offer, to the extent of $140.
“That sixty dollars of this reduction was on account of labor, fifty dollars because of the smaller quantity of paper and paint that would be needed on the smaller structure, and that he made a further voluntary reduction of thirty dollars from his bid ‘in order to be cheap.’ He further testified that the elimination of ‘a new roof’ reduced the estimate for ‘new lumber’ about $140.00, and that this (the lessened cost of ‘new lumber’) was one reason why Mr. Bergeron abandoned his plan for a ‘new roof.’
“It thus appears that plaintiff’s understanding was that he was to receive for himself the sum of four hundred dollars, to which was to be added the $260.00 for painting and papering, which was the amount to be received by the ‘third person’ who undertook it for that figure — making a total of $660.00 to be paid to him by the defendants, and that the defendants were to supply the new materials needed — (first estimated at $360.00, but reduced by the amount of $140 because of the elimination of a ‘new roof’ and the acceptance of a smaller building), finally estimated at about $220.00. ThuSi making the total cost of the completed building to the defendants, about $880, instead of the $1,160.00, which the building as first discussed would have cost them.
“That plaintiff apparently did so understand his agreement with Mr. Bergeron, is indicated by the admitted fact that he did ask Bergeron where he should get the materials. Ordinarily, if he were bound to supply the materials, it would not have oecurred to him to ask Mr. Bergeron, where he should get them. Naturally, the place of obtention would not have concerned Mr. Bergeron. While the natural impulse of the contractor would have been to seek and procure them at the cheapest place, without consulting anyone.
“The fact that he directed the dealers to charge the materials to Mr. Bergeron and to send Mr. Bergeron the bills therefor, and that he did this openly and at once as soon as he needed the first materials, for the work — even at the very beginning of his work, for foundation materials, sand, etc., were necessarily first requisites for the erection of a building — is another pertinent indication that he was sincere in his professed understanding that the defendants were to furnish such materials; otherwise, it is improbable that he would have ventured to have Mr. Bergeron so billed, immediately and so openly.
“Whatever may have been the actual verbiage used in making the contract, the court is satisfied that the plaintiff was in good faith and so understood it when he undertook the work and asked Mr. Bergeron where he should go for necessary materials, and immediately so obtained them and unhesitatingly directed that Mr. Bergeron be apprised thereof and billed for the price.
“That he did discuss the matter of new lumber at least with Mr. Bergeron, is attested to by the witness, Sydney Malbrough, a carpenter employed by the plaintiff, who says (page 55, evidence):
“« * * The discussion was that there wouldn’t be enough studs or posts to build the house, so Mr. Bergeron suggested that he use four by fours to make these studs and use two by sixes for those rafters, that that would make him a better and stronger house. So. Mr. Bergeron told Mr. Chiasson to go to the lumber yard and get some and charge it to him, that he would pay for whatever lumber he would need.’
“Again, on page 56, he says:
“ ‘He told him to go and get whatever he needed to build the house, and that he would pay for it, that he would pay for the lumber to build the house, for the new lumber.’
“‘We were ready to put the rafters on’; ‘the lumber was to complete the house’; ‘we hadn’t put the rafters on and we needed some more studs to put the frame in the house.’
“Again, on page 59 of the evidence,' he was asked:
“Question: ‘When that conversation took place between Mr. Chiasson and Mr. Bergeron with reference to the rafters, was that at the time when they first needed lumber?’
“Answer: ‘We were just about to need lumber.’
“Ques. ‘You hadn’t used any new lumber on that house before?’
“Ans. ‘Not up to that time.’
“Mr. Malbrough is seemingly a truthful and disinterested witness — at least, less interested than plaintiff, Mr. Bergeron, and his wife, or the defendants.
“According to him, there had been no new lumber used up to that moment — it was ordered and obtained thereafter. Yet, the conversation recited" by Mr. Malbrough could have conveyed no other implication to Mr. Bergeron, than that the plaintiff expected him (Bergeron) to furnish such new lumber as was needed, at least for posts, studding and rafters. And there is nothing in the record to show that new lumber was needed for any other purpose.
“If it were a fact that plaintiff was to be responsible for new lumber that should be needed, it is hardly possible that Bergeron would not then have reminded him of his contract. That plaintiff took the position indicated by this conversation, is strongly corroborative of his present position that any new material was to be at the expense of Mr. Bergeron. We say Mr. Bergeron, for it is to be remembered that, up to that time, plaintiff's contract was with Mr. Bergeron, not the present defendants. It was not until later, that the daughter and her husband were revealed to plaintiff as the real owners of the property.
“This conversation, coupled with the facts that he was billed for the lumber as soon as it was furnished, must or should have convinced Mr. Bergeron that plaintiff expected him to assume and pay for these materials — yet he made no protest there against, to plaintiff. True, he did inquire of Mr. Brown of the lumber yard as to why the bill had been sent to him. 'But Brown was neither party nor privy to the contract with plaintiff. The inquiry did not amount to a protest; if it had, a protest to Brown was not a protest to plaintiff, and could in no way serve as notice to plaintiff that his interpretation of the contract was not in accord with that of Mr. Bergeron. As to its effect upon plaintiff’s rights or mental conclusions of the meaning of the contract, Mr. Bergeron’s inquiry addressed to Mr. Brown might just as well never have been made. But, as a matter of fact he did not even repudiate his liability to Brown, and thereafter continued to receive other bills of the same nature from Mr. Brown — at no time telling Brown that he was not responsible therefor.
“Although he received those bills promptly and regularly, he, at no time, said anything to plaintiff in protest there against.
“Acting in accord with his professed .understanding of the contract, and receiving no word of dissent from Mr. Bergeron, the plaintiff had good reason to take it for granted that he and Mr. Bergeron were in harmony, in interpreting and understanding their verbal agreement. Becoming convinced, if he did, that plaintiff was laboring under the impression that he (Mr. Bergeron) was to pay for the new materials, it was the duty of Mr. Bergeron, within a reasonable time, to acquaint the plaintiff-with the fact that he (Bergeron) did not so interpret their agreement. His prolonged silence, knowing plaintiff’s understanding, strongly argues acquiescence therein. Whether or not, he so intended or understood, his actions were such as might very well have impressed plaintiff with an attitude of acquiescence.'
“His only attempt to bring the matter to plaintiff’s attention, consisted in sending his son-in-law, one of the present defendants, to ask about it.
“It must be remembered that this son-in-law was not a party to the contract and, up to that time, had not been disclosed to plaintiff as an interested party; therefore, his query as to why plaintiff had had the lumber charged to Mr. Bergeron was not one to which plaintiff was called upon to accord any special attention — indeed, according to Mr. Clement, the son-in-law, the plaintiff appeared to attach very little importance to the query. To quote the witness (top of pg. 46, evidence), when asked; ‘What did you tell him?’ Clement replied:
“ ‘I told him I found it funny that it was charged to Mr. Bergeron, on his name. And he said, — well he just kind of smiled it off and told me to “keep the bill.” That is all.’
“Questioned by the court, the witness said that he received the first bill between July 20 up to sometime in August; that he took none of them to plaintiff except the first, though he received every bill that was sent to Mr. Bergeron.
“Though he says that he told Mr. Brown that he had understood that Mr. Bergeron was not liable for the lumber, at the time the first bill was received, he admits that he said nothing further to Brown thereafter. Asked again on page 46, ‘Did you tell Mr. Chiasson (plaintiff) anything?’ He replied, <ra page 47:
“ T just told him that the bill came charged to Mr. Bergeron, on his name, and I asked him what he wanted to do with it and he just told me to keep it.’
“Though extensively questioned concerning this interview with plaintiff, on page 47, he at no time quotes plaintiff as in any way recognizing or admitting any responsibility for the material bills; or that he considered himself as in any way obligated to discuss his contract with any other than Bergeron, with whom his agreement was made. And Bergeron said nothing to him.
“A study of the record suggests the conclusion that, since neither Bergeron nor his son-in-law are educated or business men— nor,, indeed, does the plaintiff appear to be —they possibly deemed that they had taken the proper steps to lay the foundation for a refusal to pay the bills. It is entirely possible that they entertained the understanding of the contract, which they now assert.
“If that he true, they, or at least Bergeron, should have, upon receipt of the first bill charged to him, immediately raised the question with the plaintiff.
“The fact that the bill was sent to them at the direction of plaintiff was proof apparent that plaintiff was entertaining an altogether different understanding of the building agreement. They should not have contented themselves with merely having Clement ask him why he had done so; and when his response thereto clearly indicated that he was not withdrawing from his attitude that the bill was properly charged to Bergeron, they should have proceeded at once and not with undue delay, 'to challenge his (as they saw it) erroneous attitude. They should not have, thereafter, adopted and persevered in a course of silence, well calculated to confirm him in his own interpretation of the contract.
“The plaintiff has satisfactorily shown that he was sincere in his own understanding thereof. Granting the same sincerity to Mr. Bergeron, notwithstanding his dilatoriness in challenging plaintiff’s understanding thereof, when unmistakably brought to his attention, we would have a situation in which the two contracting parties entertained a toally different conception of the terms and conditions of the contract — especially as regards new lumber that might be needed. If that be true, there never had been a true meeting of the minds of the bargaining parties — consequently, no legal contract.
“There being no definite contract, except that they seem agreed that four hundred dollars was to represent plaintiff’s work and time, when Bergeron and defendants discovered that plaintiff was charging the new materials to Bergeron, and permitted him not only to -continue the building of the house under his demonstrated erroneous interpretation of the contract, thus failing to halt him while there was yet time to demand and obtain a genuine understanding and agreement, but in addition thereto, permitted the purchasing of new lumber and the charging thereof to Bergeron’s account to continue without further and positive protest accompanied by notice that Mr. Bergeron would decline to recog'nize responsibility therefor, their course must be held to have amounted to an acquiescence, on their part, in the interpretation assumed by the plaintiff. Being well aware of his attitude and interpretation, they knowingly and neglectfully per'mitted him to continue to employ his time and labor in that belief — that he did so continue, was their fault and at their risk — ■ a word from them would have stopped 'him and would have provoked a real un- ' derstanding; failing which, he might not have continued to expend his time at labor to the benefit of defendants.
“That being the situation, both equity 'and law direct that they must now abide by the interpretation under which he proceeded, with their knowledge and implied ' assent.
“Aside from the legal merits of the question, the record fairly establishes that the 'plaintiff lost money on the contract, even if settled with as per his demands. While 'that fact would be without any weight as 'against a definitely established contract, in the present instance it is a pertinent collateral fact that lends probability to plain-* tiff’s insistence that he did not and would not have undertaken the contract under the terms now claimed by Mr. Bergeron, and makes it easier to credit him with sin- ' cerity when he insists that he expected Mr. Bergeron to furnish the materials, and ' that he should himself receive four hun'dred dollars for his time and labor, in addition to the two hundred and sixty dollars, which, it appears to have been taken for granted, would go to the person who attended to the papering and painting job.”

The facts and circumstances of the case are fully reviewed by the court in a well-prepared and elaborate opinion. We have carefully read every line of this record, and find that the conclusions below are fully supported by the evidence, and we are unable to find any error in the judgment which would warrant a reversal by this .court.