text:
    No. 3455
    Second Circuit (Second Division)
    UNITED SHOE STORES CO., INC., v. DRYER
    (June 11, 1931. Opinion and Decree.)
    Lyons & Prentiss, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   STEPHENS, J.

It is alleged in plaintiff’s petition that on July 1, 1925, plaintiff made an oral agreement with the defendant, Clarence Dryer, whereby the defendant was employed as manager of the Cinderella Slipper Shop, at a salary of $50 per week. It is further alleged that it was agreed that in the event Dryer remained in the position for a year he would be paid a bonus of 1 per cent of the total amount received from the sale of shoes in excess of $75,000; and that should he quit said employment before the end of the year, the bonus was not to be due or payable. It is further alleged that the first year of employment began September 12, 1925, and terminated September 12, 1926; and that Dryer remained in the position for the first year and was paid a bonus at the end thereof, in accordance with the terms of the agreement; that at the end of the first year, qn or about September 12, 1926, the agreeinent was continued in force and effect for the succeeding year, except that the sale of hosiery was to be included in the total sales upon which the bonus was to be calculated and paid; that on September 12, 1926, the sum of $125, and on March 12, 1927, the sum of $125 was paid tó the defendant by plaintiff, but that said sums were not intended as a settlement of the bonus as of dates paid but >as an advance thereon, subject to an accounting and adjustment at the end of the year. It is further alleged that on May 21, 1927, the defendant left the employment of the plaintiff and therefore did not earn, under the terms of the agreement, any bonus on sales for the period between September 12, 1926, and September 12, 1927, the second year of the agreement.

This suit is for the purpose of recovering the $250 alleged to have been advanced to the defendant on the bonus.

The defendant answered, and admitted his employment as manager of the slipper shop at a salary of $50 per week plus a bonus of 1 per cent of the gross sales of shoes in excess of $75,000 per annum; and further admitted that the sum of $250 was paid on the dates as alleged in plaintiff’s petition; and that he severed his connection with the (plaintiff on May 21, 1927. The defendant denied, however, that the bonus was contingent upon his remaining in plaintiff’s employment for a year, and alleged that the contract entered into by him with plaintiff to take effect September 12, 1926, was as follows: That he was to receive a bonus in addition to his salary of 1 per cent of the gross annual sales in excess of $75,000 of shoes and hosiery, to be computed and paid quarterly; that from the gross quarterly sales, one-fourth of $75,000, or $18,750 was to be deducted, and 1 per cent of the balance paid him as his bonus. He further averred in his answer that the two payments of $125 each were made in settlement of his bonus under the terms of the contract; and that the bonus due at the close of each of the quarters, December 12, 1926, and March 12, 1927, was estimated and agreed upon and payment thereof made accordingly.

The trial court rendered judgment in favor of the plaintiff and against the defendant for the sum of $79, from which said judgment defendant appeals. Plaintiff has filed an answer to the appeal, praying that the judgment be increased to $250, the amount sued for.

The evidence shows beyond question, we think, that the bonus to be paid the defendant for the second year (as it was admittedly for the first year) was not due and demandable until the end of the contract year, subject, however, .to the exception that if the defendant quit his position before the expiration of his contract he would not be entitled tq receive a bonus, unless at the time hq quit, the gross sales exceeded $75,000, in which event he would be entitled to 1 per cent bonus on such excess.

At the beginning of the second year of the employment, the contract as it existed during the first year was renewed, except that the amount of sales of hosiery was included in the amount of sales of shoes, to serve as a basis for the determination of the bonus due the defendant. The two sums of $125 each sought to be recovered were paid to the defendant under the terms of a supplemental agreement reached by the parties after the renewal of the original contract, solely for the accommodation of the defendant, and were each estimated to be one-fourth of the amount that would be dué the defendant at the end of the contract year, and were paid subject tq adjustment and revision when the bonus became due.

The (plaintiff contends that the agreement was, that if the defendant voluntarily left his position before the expiration of the contract year, he was not entitled to a^bonus, and as he did Iqave voluntarily on the 21st day of May, 1927, which was the eighth month of the contract year, he owed the return of the $250 advanced.

The question presented is merely one of fact. The trial judge refused to accept the version of the defendant as to the terms of the contract in this respect, and ■ we think correctly so.

Defendant was employed for the sum of $50 per week, a rather small compensation we think, if the responsibility of the position be considered. He was subject to discharge at the end of any week, without cause. It is not reasonable to believe that he bound himself to forfeit the earned portion of the bonus if be decided to quit the position. Forfeitures are not favored in law, and will be enforced only in cases in which the right of the contracting party to exact them is clear and unequivocal.

We are of the opinion that the (plaintiff should recover the amount paid to the defendant which was ^unearned at the time the defendant quit the employment. The gross sales up to the time defendant quit the employment, exceeded $75,000 by $17,-099.66; 1 per cent of which would be $171, which latter amount, deducted from the $250 advanced to defendant, leaves $79 overpayment, which the plaintiff is entitled to recover.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 3532
    Second Circuit (Second Division)
    WILLIS v. EZERNACK (Oscar Laroux, Intervener and Third Opponent.)
    (June 11, 1931. Opinion and Decree.)
    Frazer & Carroll, of Many, attorneys for plaintiff, appellant.
    Boone & Boone, of Many, attorneys for intervener and third opponent.
   TALIAFERRO, J.

On October 31, 1928, plaintiff instituted suit in the district court of Sabine parish against Jim Ezernack on open account for $60.40, coupling therewith a prayer for issuance of writ of attachment on the grounds that defendant had mortgaged, assigned, or disposed of-, or was about to mortgage, assign, or dispose of, his property, rights, or credits, or.some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them; or that he had converted, or was about to convert, his property into money or evidences of debt with intent to place it beyond the reach, of his creditors. A writ of attachment issued under which the sheriff on November 5th seized the Ford roadster, involved in this suit, while in the possession of the intervener. The attached car was immediately released to Laroux, who, after seizure of car under fi, fa., intervened in the case, on what is referred to as an attachment release bond. However, no written application, appears to have been made to bond the attachment, and no order fixing bond therefor is in the record. The form of the bond is. in the language of release bond of defendant. It is not a forthcoming bond.

. Ezernack made' no appearance in the suit, and judgment against him was confirmed on default, recognizing the attachment and the lien and privilege resulting from the levy thereunder. In due time a fi. fa. issued on this judgment, and the Ford roadster was seized thereunder by the sheriff. The car had remained in La-roux’s possession since he ‘‘bonded” the attachment.

Laroux executed and delivered to the sheriff an affidavit declaring his ownership of the seized car and in detail the transaction culminating in its acquisition by him. In this affidavit it is set forth that Ezernack has no interest in the seized car, and that same is not responsible for his debts, that affiant is being damaged, and has already been damaged, on account of the illegal seizure of his property, and that the affidavit was made “in order that the sheriff may release said car or have plaintiff indemnify him for such damages as affiant shall sustain if said car is not released from said seizure.’’ The car was seized December 17th, and this affidavit was executed the following day.

The record does not disclose the fact, but it is said in brief of counsel that plaintiff provided the sheriff with bond of indemnity to protect him against exposure to damages on account of the illegal seizure of said car, and hence the car was not released from seizure.

Laroux, after the above-mentioned happenings, filed petition4* of intervention and third opposition, wherein he re-asserted ownership in himself of the seized roadster by purchase from Ezernack on November 1, 1928, for $194.40, of which amount $69.40 was paid in cash, and the balance was evidenced by his note payable in five equal monthly installments, secured by chattel mortgage on the car; that the car was delivered to him at time of purchase, and has remained in his possession since that time, except when under seizure; that he purchased the car in good faith, not knowing of the indebtedness due plaintiff by Ezernack. Intervener sued out a rule against the sheriff and plaintiff to show cause why a preliminary injunction should not issue restraining them from proceeding with the sale of the embattled roadster. This rule was made absolute, and the injunction issued as prayed for.

Intervener asked for damages against plaintiff as follows: Attorney’s fees, $50; for loss of time in coming to court and returning home, $50, solely on account of said illegal seizure of his property; and for $1 a day for the time, since December '17th until the car shall be delivered back to him, for loss of use of his car.

Plaintiff interposed exception of no cause of action to the petition of intervention, and also filed a plea of res adjudicata. These were both referred to the merits. The . court minutes do not make further reference to them, and, as the judgment appealed from does not make mention of either, we assume neither was directly passed on by the trial judge.

The answer of plaintiff to the intervention is a general denial, except the allegations in respect to the seizing of the roadster under attachment and fi. fa., and release thereof to intervener on bond, which are admitted.

There is no allegation of fraud or collusion against the acts of intervener or Ezernack with regard to the sale and purchase of the car in question in plaintiff’s answer.

There was judgment of the lower court perpetuating the injunction sued out and decreeing intervener to be .the owner of the seized car and entitled to the possession of same. There was further judgment in favor of intervener and against plaintiff for $50 damages as attorney’s fees in the case; for $10 damages for loss of time and' expenses on account of said illegal seizure, and 50 cents a day or $18 damages for the loss of the use of said roadster to date of judgment, and “fifty cents per day from and after this date (date of judgment) as damages for the loss of use of said roadster until such time as same is restored to the possession of .the said Oscar Laroux, the owner, together with 5% per annum interest on the $78.00 damages allowed by this judgment, from date hereof until paid.” Plaintiff has appealed.

All the parties .to this suit live- in Zwolle, Sabine parish. It appears that intervener first discussed purchasing the roadster with defendant about October 21, 1928, and had a mechanic inspect the car to advise him whether it was worth the price asked; that the trade was not closed then because defendant was working on the highway and needed the use of the car for a few more days; that the Robertson Motor Company, of Mansfield, held a vendor’s lien and privilege against the car amounting to $69.40, and that the parties closed their trade at that place, before a notary public, on November 1st, the cash payment of $69.40 being paid to said company to discharge the lien resting against the roadster. It is also shown that Ezernack, on October 31st, received knowledge of the filing by plaintiff of suit against him and the issuance of the writ of attachment, and no doubt this information induced him to a speedy-closing of the sale to intervener. The process of the court was placed in the sheriff’s hands on October 31st, but the car could not be found for seizure until November 5th. There is considerable evidence and many circumstances strongly indicative of willful intent on part of defendant to conceal the car from the sheriff’s pursuit until he had disposed of it, but -there is no evidence in the record to connect intervener with these acts, nor to place upon him knowledge of these circumstances existing at the time of, and immediately prior to, his purchase. He is not charged with bad faith, fraud, or collusion. The car was in his possession when attached and when seized under the fieri facias, some seven weeks after the attachment. He informed the deputy sheriff who executed the attachment that the car was his and had been paid for by him.

We have given careful attention .to the earnest brief filed on behalf of the plaintiff wherein many conclusions are drawn from the evidence and argued with sincerity, which impugn the honesty of purpose and good faith of Ezernack, after learning of plaintiff’s suit against him, and there is much in the record to corroborate such charges, but, in the absence of guilty knowledge on part of intervener, he should not be made to suffer for Ezernack’s wrongdoing.

In the brief of intervener, it is stated that the seized car was restored to him immediately after rendition of the judgment recognizing his ownership of it. This being true, the quantum of damages is¡ admittedly restricted to the allowance of attorney’s fees', $10 for expenses and loss of time, and $18 as damages for loss of use and possession of the car from December 17 to January 23, date of judgment. Appellee has not asked for amendment of judgment on appeal.

It is contended by plaintiff that, inasmuch as the sheriff was not responsible in damages for the execution of the fi. fa., against the property seized under the attachment, the lien resulting from which was recognized by the judgment against defendant, neither can plaintiff in execution be condemned therefor. It is true under such circumstances the sheriff cannot be held for damages (Ellmore v. Hufty, 13 La. Ann. 227), but it does- not necessarily follow that the same rule applies ' to the seizing creditor, and, especially so, when he persists in the seizure, after being apprised of the rights of claimant of the seized property, and provides an indemnity bond to the sheriff to prevent a release of the property from seizure.

Attorney’s, fees incurred in suing out injunction to prevent sale of property wrongfully seized are recoverable as an element of damages. White v. Givens, 29 La. Ann. 571.

The allowance of damages by the lower court appears to be conservative, and will • not be disturbed.

For the reasons herein assigned, the judgment appealed from is affirmed, with costs.


author: STEPHENS, J.

text:
    No. 3568
    No. 3550
    Second Circuit (Second Division)
    MARSTON v. LOUISIANA R. & N. CO. LOFTIN v. LOUISIANA R. & N. CO.
    (June 11, 1931. Opinion and Decree.)
    Smitherman, Tucker & Mason, of Shreveport, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, . appellant.
   STEPHENS, J.

Plaintiff, estate of B. W. Marston, sues to recover $900, the alleged value of four mules; and plaintiff William I. Loftin sues to recover $170, the alleged value of a yearling and a mare saddle horse; all of which were killed by defendant’s train No. 1, operating as a passenger and express train between Shreveport, La., and New Orleans, La. The accident occurred near Ninock station in Bossier parish, La., at about 8 o’clock p. m. on November 12, 1925. The plaintiffs instituted -separate actions in the First District Court of Caddo parish, La., hut by agreement of counsel for all parties, consolidated them for trial.

The plaintiffs allege in their respective petitions that the killing of the live stock was due to the negligence and carelessness of the agents, employees, and servants of the defendant; and that at the point where the animals were killed, the right of way of the defendant railroad company was not fenced, and in consequence thereof live stock passed freely and unrestrained over the tracks of the defendant.

The defendant answered, admitting the killing of the stock and the unfenced condition of the track at the point where the accident occurred; and alleged as a defense that at the time and place of the, accident there was a very heavy fog prevailing; and that although the engine of the defendant was equipped with a modern electric headlight in good order, and burning, it was impossible for such light to penetrate the fog for a distance greater than sixty or seventy feet; and that there is not known to railroad service any light which would penetrate a fog of such density as existed at the time, for a greater distance.

The district judge rendered judgment in favor of plaintiff estate of B. W. Marston for the sum of $500, with legal interest from judicial demand; and in favor of the plaintiff William I. Loftin in the sum of $168, with like interest. The defendant' prosecutes this appeal from the t,wo judgments.

Mr. Garter, the engineer, testified that he was running his train at a speed of approximately forty-five miles- per hour, and keeping a proper lookout ahead; and that a short distance from where he entered" the straight track at Ninock station, some mules suddenly appeared within his range of vision, the depth of which he estimated to be about sixty or seventy feet. The mules, he stated, were in the middle of the track in a huddle, or network,, apparently trying to run over each other; that upon seeing the mules he commenced sounding the stock whistle, and applied the emergency brakes, and brought the train to a stop within its length,, which he estimated to be two hundred twenty feet. He further testified that he saw no other stock either prior or subsequent to the time he saw the bunch of mules in -the middle of the track. With reference to what occurred immediately after the train was brought to a stop, he testified as follows;

“Q. What happened after the train stopped?
“A. I got -off the engine, started back, got off the engine looked under to see if anything under the engine, didn’t find anything, started back to the train, in the meantime I seen the flagman on the rear pull mule out from under the sleeper I returned to the engine found nothing wrong with the engine. * * *
“Q. You were around your train during the entire period?
“A. I was there looking the engine over.”

On cross-examination the engineer testified that his engine was six or eight hundred feet below Ninock station when he first saw the mules huddled together on the track. The plaintiff Loftin testified that he measured the distance from Ninock station to where his yearling was killed, and found it to be seven hundred fifty feet; and that, it was four hundred and twenty feet from that point to the place where his horse was killed; and from where his horse was killed to where the first mule was killed it was ninety feet; and from that point to the place where the fourth mule was killed was about two hundred and ten feet.

Both the engineer and his fireman admit that they never saw the yearling or the horse, but account for their death by the possibility of their running into the side of the train. The horse was cut in two, and ope-half of her ground in pieces. She evidently was not killed by running into the side of the train. She was undoubtedly struck while on .the track, and should have been seen by the engineer a,nd fireman even if the fog was as heavy as they say it was. It 'is possible that the yearling was killed by running into the train, but it is probable, in view of the fact that the horse was no.t seen, though on the track, that the yearling was killed in the usual manner.

The engineer testified that he first saw the mules and commenced sounding the stock whistle at a point about six or eight hundred feet below Ninock station. He is contradicted in his statement by Quarles, witness for plaintiff, who testified positively that the stock alarm was sounded in front of his house, which is at Ninock station. The engineer’s testimony is corroborated by his fireman’s but Quarles is supported by one Hankins. It is difficult to determine one’s position at a given time on an engine moving at forty-five miles per hour, but one could not be mistaken as to whether a whistle was first blown immediately in front of his door, or six hundred or eight hundred feet therefrom. We must assume that the testimony of Quarles is correct on this. point; and it follows that some of the animals were seen at a point at least six or seven hundred feet before .the yearling was struck; and that after knowledge of the presence of the animals on the track the engineer ran the train a distance of eleven hundred feet béfore the horse was. killed; about .twelve hundred feet before the first mule was killed; and about fourteen hundred and ten feet to the point where the last mule was. killed.

That it was foggy on the night in question is not disputed, but we agree with the conclusion that the trial court must have reached, that the heaviness or density of the fog was greatly exaggerated by the defendant’s witnesses. This is indicated by the sounding of the stock whistle at a much greater distance from the point where, the killing began than sixty or seventy feet, as testified to by the engineer and the fireman; the testimony of plaintiffs’ witnesses that they saw a red light on the rear of the train, notwithstanding the fog, at a distance not less than a quarter of a mile; and the .testimony of the engineer, quoted above, that he saw the flagman pull a mule from under the rear pullman, though he clearly indicated in his testimony that he never left the immediate vicinity of his engine.

As .the engineer testified that he stopped his train within an estimated distance of two hundred and twenty feet after having applied the brakes, we are of the opinion that he did discover, or should have discovered, in the exercise of ordinary care, under the, circumstances, the position of peril of .the animals in time to stop and avoid killing them.

The case presents only questions of fact, and we find no apparent error in the conclusion of the trial court that the defendant has failed to establish, by a preponderance of the évidence, its freedom from negligence in the killing of the stock. The damages as fixed by the trial judge seem fair and reasonable, and in accord with the testimony adduced.

The judgments appealed from are affirmed.


author: CULPEPPER, J.

text:
    No. 3517
    Second Circuit (Second Division)
    BAZER v. GRIMMETT ET AL.
    (June 11, 1931. Opinion and Decree.)
    W. H. Scheen, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   CULPEPPER, J.

This is a suit brought by plaintiff against two defendants, P. W. Grimmett and W. F. De Priest, to recover on a note. Plaintiff asks for judgment against P. W. Grimmett, as maker of the note sued on, for the full amount thereof, and against W. F, De Priest, as plaintiff’s alleged co-surety thereon, for one-half of the amount of the note. The note sued on, which is attached to the petition, was originally for $250, dated Shreveport, La., May 28, 1928, made payable to the order of the Southland Investment Company, Inc., in monthly installments of $25 each, indicated on the margin thereof, beginning June 28, 1928, with 8 per cent, per annum interest on each installment from maturity until paid, and 10 per cent, additional as attorney’s fees in event of employment of an attorney to collect same or any part thereof, and conditioned that, in event of failure to pay any installment when due, all the remaining installments shall thereupon immediately become due at option of the holder. The note is signed, by plaintiff and both defendants in the following order, -viz.: Paul Grimmett, W.- F-. De Priest, and-B..D. Bazer. ■ . - • ■ .

Plaintiff alleges that on or- -about the 28th of May, 1928, P. W. Grimmett obtained a loan _ from the Southland Investment Company in the sum of $250. He here sets out the manner of payment, interest; attorney’s fees, and stipulations" as' above outlined. He further alleges, that he signed the note representing said loan as ají acr commodation for said Grimmett, and that said De Priest “also signed said' note as co-surety with plaintiff.” He’ alleges that Grimmett, having paid the first two -installments, failed to pay the third which fell due August 28, 1928, whereupon the holder demanded payment of the whole_ of the balance of the note, and that, as one of the sureties thereon, he (plaintiff) paid the Southland Investment- Company the balance of $200; whereupon said company assigned and transferred said note over to plaintiff; that the whole amount is now due to him by P. W. Grimmett as- maker of the note and one-half of the amount is due to plaintiff by said W'. F. De Priest, as . plaintiff’s- co-surety, including 8 per cent pert-annum interest and 10 per cent as attorney’s fees. -Alleging amicable demand, plaintiff prays for- judgment against Grimmett in the- sum of $200, with 8 per cent per annum interest from August 28, 1928, until paid and 10 per cent additional as attorney's fees, and'also prays for judgment against De Priest in the sum of $100,. with like interest and fees; and prays that all payments collected thereon to be credited with the main debt until it has been paid.

The note shows indorsed on the back as follows:

“Without recourse, pay to D. D. Bazer, or order.
.“[Signed] Southland Investment Co. Inc.
By__________________________, President.”
(Cannot make out name.)

Defendant Grimmett made no appearance by answer or otherwise.

Defendant De Priest filed-a plea of misjoinder of parties defendant and exception of no cause or right of action, wherein he says: “Defendant shows that, he is to be made a co-defendant with one P. W. Grimmett, and that the cause of action against him, if any there be, and that against P. W. Grimmett, are entirely separate and distinct.” “That there is no joint cause of action between him and said P. W. Grimmett, and that they should 'not be made co-defendants.”

This defendant also on same date filed another exception of no. cause or right of action coupled with a motion to strike out paragraph 3 of plaintiff’s petition, as well as that part of the prayer claiming attorney’s fees, with interest, “as same in no event could be charged to your defendant.” It will be noted that paragraph 3 of plaintiff’s petition is the portion of the petition wherein it is alleged that plaintiff signed the note as an accommodation to Grimmett, and tliat defendant De Priest signed as co-surety with plaintiff.

The ’ plea, éxceptions, and motion to strike out were denied and overruled by the court; whereupon defendant De Priest filed an answer admitting he signed the note, but denied liability. He makes the following allegations as a special defense:

"Further answering shows that in the spring of 1928, P. W. Grimmett and D. D. Bazer were maker and endorser, -respectively, of a certain note, and in order to secure funds with which to pay said noté said P. W. Grimmett and D. D. Bazer negotiated a loan from the Southland investment ' Co.
“That the said Bazer could not with his endorsement only secure the money from the said company and your defendant was requested by Bazer to sign the note to accommodate sajd Bazer and your defendant agreed with the said Bazer to sign the said note with the understanding that the said De Priest would not be liable and was merely accommodating said Bazer and in order that they might have two endorsers on the note according to the rules of the company.”

Further answering defendant alleges that:

“The money secured by the note given the Southland Investment Co. was used to pay and satisfy the former note executed by P. W. Grimmett and endorsed by said Bazer, and your defendant has had no benefit from same.”

Upon the issues as thus presented, the case was tried, and judgment rendered as 'prayed for against the defendant- P. W. Grimmett for the full $200 called for by the note with interest and attorney’s fees, and against the defendant W. F. De Priest. for one-half only of that amount, $100; ¡ the judgment providing that all payments ' collected upon the judgment against De Priest are to be credited upon the judgment against Grimmett. Defendant De Priest alone has appealed.

■Counsel for defendant De Priest contends that the plaintiff brought this -suit against his client upon the theory of suretyship, and against defendant Grimmett under the provision of the Negotiable Instruments Law, section 121 of Act- -No. 64 of' 1904; that plaintiff’s rights of action being founded on different causes or. sources, one under the provisions of article 3058 of the Civil Code, and the other, under the Negotiable Instruments -Law, plaintiff cannot join the two defendants in the same suit. Since counsel has present-1 'ed his argument upon the questions of plea, "of misjoinder ’and ho' cause 'of action tp-; gether, we' shall discuss'them'in that manner. He cites article 3058 of the Civil Code to the point that plaintiff had no right or cause to sue De Priest unless and until he first complied with the provision of the article by waiting until he himself was sued by the holder of the note and had paid the note in consequence of such suit. -Article 3058 reads as follows:

“When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of .each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.”

It is admitted that plaintiff did not pay the note he sues upon in consequence of a lawsuit against him. In fact he has not so alleged. Counsel for De Priest has cited no authorities in support of his contention, but relies upon the plain language of the Code. The language of the article does appear to be clear and unambiguous.

The pertinent question here, however, is whether, under the allegations of the petition, plaintiff has set up a cause or right of action even though he has not alleged that he paid the' note in consequence of a lawsuit instituted against him. Under the holding of the Supreme Court in Fox v. Corry, 149 La.-'AAS, 89 So. 410, 415, we think plaintiff has alleged a cause of action. In that case plaintiff alleged he and defendant were co-sureties on a $5,000 note; that he took up'and'paid the note, and is suing defendant as 'transferee thereof. He did not allege that he paid the note in consequence of 'a ’lawsuit. Defendant in that case filed an-exception of no right or cause of action upon'the ground that plaintiff, had not alleged he paid the note as 'a result of a lawsuit as'-provided by the article1 of the' Code.- The-court in passing upon the point" thus-raised-said:

“We need not go into that question, since, if so «be that plaintiff has not properly set forth in his petition the equitable right of action conferred by said article 3058, he certainly has in a very full manner Set forth a right of action as transferee of the bank. This ' he has done by alleging all the facts. * * * The notes are annexed to the petition, and they show the indorsement, * * * and the transfer by the bank to plaintiff without recourse.”

In that case there were several notes involved, but the pertinent issues on this point were narrowed down to the $5,000 note in the Opinion on rehearing in the case. The facts alleged in the petition, as bearing upon the question there under consideration, were very similar to the facts set up in the petition in this case. The note sued on in the present case .is also attached to plaintiff’s petition and made a part of same. It shows to have been formally assigned and transferred over to plaintiff by the Southland Invest.ment Company, Inc., the original payee. The same therefore may be said in this case as in the Fox v. Corry case, that plaintiff has set forth a right Of action as transferee of the note even though he has failed to allege upon the equitable provision of the article of the Code. The exceptions of no cause or right of action were therefore properly overruled by the trial judge. Since the court likewise overruled the plea of misjoinder of parties defendant and the motion to strike out, and the case was tried and determined upon the merits, we see no good reason to hold the court was in error and remand the case solely on that ground. Both parties have had their day in court, and the case is now before this court with benefit of tbe record as made up in the lower court. We therefore shall consider and pass upon' the merits from the record as made up, as we feel that neither party can be prejudiced by our doing so.

Plaintiff testified frankly that the mon-. ey derived from the loan from the South-land Investment Company, Inc., for which the note he is suing on was given, was borrowed for the purpose of paying off and satisfying the note which he and P. W. Grimmett, the other defendant in this suit, had previously given to the West End Bank in Shreveport, and which had fallen due. He admits that he knew, at the time of executing the note sued on by him, that the proceeds of the loan thereby obtained were to be used with which to pay off the former note of his and Grimmett’s. He admits that De Priest, requested him to secure a chattel mortgage from Grimmett at the time upon some of Grimmett’s property as collateral security on the note and that he did make an effort to get the chattel mortgage, but failed.

Plaintiff, further testifying, made the voluntary statement that the West End Bank note was really a renewal of a still prior note that he was on for the Big Four Garage. So it will be seen that plaintiff had an interest in securing the loan represented by the so-called West End Bank note. The proceeds of that loan were used to take up a former note he was on. He does not say whether Grimmett was on the. former note or not. The West End Bank note, which is in evidence, shows it was executed by Grimmett and plaintiff. Grimmett’s name is signed first, then the signature of plaintiff. De Priest’s name does not appear on that note. He was not a party to it; hence had no interest to conserve when he signed the note sued on.

Plaintiff testified he signed as surety for Grimmett on the West End Bank note; also contends he signed the note sued on as surety for Grimmett. Owing to tbe circumstances under which, and purposes for which, he signed the note sued on, he is to he deemed as maker with Grimmett in respect to De Priest and not surety, and De Priest was only a surety for both of them as an accommodation party only. Plaintiff had a primary legitimate object to accomplish for himself in signing the note; therefore his act was not for an accommodation as respects De Priest.

“While a party’s intent may be to aid a maker of note by lending his credit, if he seeks to accomplish' thereby legitimate objects of his own, and not simply to aid maker, the act is not for ‘accommodation.’ ” Words and Phrases, Third Series, vol. 1, page 110, Accommodation.

In Seymour & Co. v. Castell et al., 160 La. 371, 107 So. 143, 144, wherein defendant Cowley was seeking to evade liability as co-surety upon the ground that he received no consideration from the notes signed by him, the court said:

“It is true Cowley was only secondarily liable as an accommodation indorser on the original note, but, when that note matured and was not paid by the maker, Cowley became bound as a primary oblig- or, and it was. at his reguest that the holder of the original note consented to extend the time of payment, and to accept the several notes sued on in lieu thereof with Cowley, as one of the makers.
“It needs no citation of authority to sustain the proposition that the division of the amount of the original no'te, when it became due, and when the liability of the indorser had become fixed and determined, into weekly installments to be paid in future, furnished an adeguate and legal consideration for the signing of the said notes by Cowley.”

This case is cited and guoted from to the point that plaintiff in the present case became a primary obligor and joint maker with Grimmett/ for a valuable consideration, of the note sued on by him, for the reason that his obligation on the original note of his and Grimmett’s made him so when it became due and his liability thereon as indorser became fixed and determined. Furthermore, the evidence shows that he interested himself in securing the loan represented by the note sued on, which also evidences his interest therein. The evidence shows also that plaintiff’s interest extended back even further than the West End Bank note, as that note itself represented money borrowed with which to settle a former note he was on in favor of the Big Four Garage.

Under these circumstances, plaintiff being bound as a principal debtor and joint maker of the note in suit, his payment of same to the holder operated to extinguish the debt by confusion in so far as defendant De Priest was concerned.

“When the gualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.” Civ. Code, art. 2217.
“The confusion that takes place in the person of the principal debtor, avails his sureties.” Civ. Code, art. 2218.

There seems to be no doubt, under the evidence, in this case, that plaintiff can have no recourse against this defendant De Priest, for the reason that plaintiff was maker of the note he sues on and De Priest was his surety. When the maker discharged the note, he was in effect paying his own debt, and it became extinguished in so far as De Priest was com cerned; hence discharged De Priest.

For the reasons assigned, the judgment appealed from is hereby reversed in so far as appellant is concerned, and there is therefore judgment in favor of defendant W. F. De Priest, rejecting plaintiff’s demands against him, with costs of both courts.


author: WEBB, J.

text:
    No. 3189
    Second Circuit
    FEIST v. WILLER & GAMM, INC.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    Malcolm W. Feist, of Shreveport, attorney for plaintiff, appellee.
    Edward Barnett, of Shreveport, attorney for defendant, appellant.-
   WEBB, J.

Plaintiff, Samuel Feist, and defendant, Wilier & Gamm, Inc., are creditors of Willie Bradford, a resident of the parish of Caddo, Louisiana. Plaintiff filed suit against the common debtor on January 14, 1927, and after legal delays obtained judgment by default; but while plaintiff’s suit was pending, defendant obtained from the common debtor a confession of judgment on which suit was filed and judgment rendered, which judgment was immedfately registered in the office of the" recorder of mortgages for the parish of Caddo. Thus, defendant, Wilier & Gamm, Inc., obtained judgment against the common debtor and had the judgment registered in the office of the recorder of mortgages prior to the date plaintiff obtained judgment, who, as stated,- was' the first of the two to file suit.

In the present action, which was filed on February 5, 1927, plaintiff seeks to have the judgment obtained by defendant annulled and’the inscription of the judgment on the mortgage records, which was made following the registry of the judgment, canceled and erased; and for the latter purpose, the clerk of the district court and ex officio recorder of mortgages of Caddo parish, Louisiana,' was made a party to the suit. - -

The action was brought under the provisions of article 1970, Civ. Code^ which gives to every creditor, when there is no cession of goods, as well as to the representatives • of all the creditors, when there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.

Plaintiff alleges the facts first herein: above stated, and also that1 Bradford was insolvent, and that the confession of judgment had been obtained by defendant who had knowledge of Bradford’s insolvency; that the confession was given and obtained with the intent of enabling defendant to obtain an unjust preference and advantage over plaintiff and other creditors; that plaintiff had been injured by the registry of the judgment, which gave defendant a judicial mortgage on the debtor’s property, thus priming the claim of plaintiff; that the property of the debtor, with the judicial mortgage of defendant priming plaintiff’s claim, would not be sufficient to pay plaintiff and other creditors of Bradford; and plaintiff further alleged that defendant may at any time cause the fraudulent judgment to be executed, and thus defeat the rights of plaintiff against the property of Bradford, which plaintiff would have had but. for the fraudulent preference and judgment of defendant.

Defendant excepted that plaintiff’s petition failed to state a right or cause of action, which was overruled, and under reservation of its rights in the exception, defendant answered ■ admitting the facts first hereinabove stated, and otherwise denying plaintiff’s allegations. •

In presenting the cause here, defendant and appellant urges, that the exception should be sustained and plaintiff’s suit dismissed, and in event the exception should not be sustained, that the evidence failed to establish either that the confession' of judgment was given or obtained with the intent' to give defendant an unfair preference or defraud plaintiff, or that plaintiff had sustained any injury.

There were numerous grounds suggested in support of the exception,- among which were that a-, mere confession of judgment by an insolvent debtor was not reprobated- by law, an.d -.that plaintiff having failed to- allege that he had seized any property belonging - to the common debtor, or that he had registered his -judgment in. the office of the recorder of mortgages, and- thus obtained a privilege or a right to be paid by preference from the proceeds of- - the sale of the -property of the common. debtor, he, plaintiff, was not in pot sition- to institute- the revocatory action; but as we gather, the principal ground on which the exception -was based, is the contention that the facts alleged by plaintiff do nót show that he sustained any injury, which is the only ground considered by the parties in their briefs.

Confining our decision on the exception to that contention, the basis of the contention appears to be that defendant did not obtain any privilege on the property of the common debtor or any right to be paid by preference from the proceeds of the sale of any property belonging to the . common debtor, if and. when the property should be sold; and that if plaintiff sustained any injury, such injury resulted from the registry of defendant’s judgment in the office of the recorder of mortgages (articles 3321, 3322, Civ. Code, and Act No. 215 of 1910), and that plaintiff could not have sustained any injury unless the common debtor had property which was affected by the registry of defendant’s judgment.

While it must be conceded that it was essential that plaintiff should have alleged facts showing that he had sustained injury (article 1978, Civ. Code; Gayoso v. Lewis, 4 La. 329; LeBlanc v. Dubroca, 6 La. Ann. 360; Gillis v. Dansby, 26 La. Ann. 711; Lowenberg, Marks & Co. v. Newman, 142 La. 959, 77 So. 891), and that a mere general allegation of injury would not be sufficient; but considering the fact that defendant had its judgment registered and the allegation that plaintiff had been injured by the registry of the judgment, which gave defendant a judicial mortgage on any immovable property owned by the debtor, we are of the opinion that the allegations were sufficient to enable plaintiff to introduce evidence to show that the common debtor had property which would be affected by the registry of defendant’s judgment, and therefore that the exception was properly overruled.

On the merits, evidence was introduced which was sufficient to sustain the finding that defendant obtained the confession of judgment with the intent of having the judgment registered in the office of the recorder of mortgages prior to the time in which plaintiff could obtain judgment in due course, but the evidence does not establish that the common debtor, Bradford, had any property which was affected by the registry of the judgment. In fact, the evidence indicated that the common debtor did not own any property whatsoever. The president of the defendant company, on whose plantation Bradford lived, stated that Bradford did not have any property, and plaintiff said that Bradford had informed him about the time the suits were filed, that he was in need of food and clothing; and the only evidence indicating that Bradford had any property was the statement of plaintiff that Bradford, the common debtor, was one of nine children, of S. Bradford, deceased, and an excerpt from the assessment rolls showing an assessment against the estate of S. Bradford of sixteen acres of land, at the value of $850.

The evidence does not, we think, show with certainty that Bradford, the common debtor, had any property subject to seizure or mortgage, and appellee apparently concedes as much; but it is urged that the judicial mortgage may be enforced not only against the immovable property which the debtor owns, but also against the immovable property which he may acquire (article 3328, Civ. Code), and that at least as to the immovables which the debtor might acquire, the registry of defendant’s judgment gave it a preference on such property and to that extent plaintiff was injured by the registry of defendant’s judgment.

However, we are of the opinion that the injury which it is essential that plaintiff in a revocatory action should show, relates to a present injury and not a future injury which might occur, if and when the insolvent debtor obtains some property.

The revocatory action, we think, is given to individual creditors in contemplation that they have or will proceed under their judgments against the property of the debtor (article 1972, Civ. Code; N. O. Credit Men’s Assn. v. Cattana et al., 145 La. 330, 82 So. 289), and that when the action sought to be revoked is merely a preference, such preference must relate to property which is subject to execution under their judgments and not to property which may become subject to execution in the near or distant future (see Alexandria v. Police Jury, 139 La. 635, 71 So. 928, Ann. Cas. 1918A, 362).

We are therefore of the opinion that the evidence at least failed to establish that plaintiff had sustained any injury; and it is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff’s demands be rejected at his cost.


author: HIGGINS, J.

text:
    No. 13,682
    Orleans
    RIVERSIDE TRANSFER CO., INC., v. SERVICE DRAYAGE CO., INC.
    (June 8, 1931. Opinion and Decree.)
    John E. Jackson and Baldwin J. Allen, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and W. A. Porteous, Jr., of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

HIGGINS, J.

The motion to dismiss the appeal in this case is based upon the ground that the appeal was returnable on December 10, 1930, extended on motion to December 20, 1930, and the transcript filed in this court on December 22, 1930, and, therefore, too late.

In the return of the appellant to the rule to dismiss it is averred that the record was lodged in this court on Saturday, December 20, 1930, by the clerk of the First City Court, as appears from the affidavit of one of his deputies, which is annexed to the return; and further that the said date, having fallen on a Saturday, which is not a legal day, the following day being a Sunday, the appellant had until the next day, Monday, ' December 22, to file the transcript of appeal.

Taking up these points in the above order, it is our opinion that we must be guided by the records of the clerk of .this court as to the time of the filing of the transcript here and not by an affidavit or statement o_f the clerk of the First City Court, or of any third party. If the clerk of this court, through carelessness or negligence, should make an error and insist that his records are correct, the recourse of the party complaining would be to seek to hold the clerk and his bondsman liable for any injury in a separate proceeding.

Counsel for the appellant says that Saturday is a “dies non,” but has failed to refer us to any authority so holding. It has' uniformly been the practice here that where the return date falls on Saturday, the transcript is lodged 'that day, unless the days of grace or an extension of time carry the return day1 to another day. In short, Saturday is a legal day and is counted. It is only where the last day falls on a legal holiday that the transcript' may be filed on the following day, but no allowance is made for intervening holidays.

For the reasons assigned the motion to dismiss the appeal is sustained and the appeal ordered dismissed.

JANVIER, J., takes no part.


author: DREW, J. McGREGOR, J.

text:
    No. 3279
    Second Circuit
    NOEL BROS. v. TEXAS & PAC. RY. CO.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Poster, Hall, Barret & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Preyer, 6f Shreveport, attorneys for defendant, appellant.
   DREW, J.

Noel Bros., a partnership, sued the Texas & Pacific Railway Company for the sum of $1,083.30, with legal interest from August 28, 1925, claiming that on or about August 28, 1925, petitioner loaded thirty-three bales of cotton in defendant company’s, car No. 13162, at Gilliam, La., for transportation to Shreveport to be delivered to A. J. Ingersoll & Co.; that nine bales of the thirty-three were burned in said car while the car was on a spur track of the company in Gilliam; that the bill of lading, or contract, between the parties contained the provision that “the carrier or party in possession of any of the property herein described shall be liable as by common law for any loss thereof or damage thereto, except as hereinafter provided”; and that by said agreement the defendant bound itself as liable as at common law; that demand was made for payment of the claim, and that same was refused.

Defendant denied the allegations of the petition generally, and set up that the fire which destroyed the nine bales of cotton originated in the shipper’s gin house and spread to the car containing the shipment of cotton, that defendant was in no way responsible for the origin of the fire, and that the spreading of the fire into the car containing the cotton was an act for which the defendant was not liable.

The case was tried on an agreed statement of facts, which is as follows:

“The plaintiff and defendant, represented herein by their respective attorneys, agree on the following statement of facts to be used in the trial of the above numbered cause:
“1. It is agreed that the defendant is a common carrier of goods for hire.
“2. It is agreed that the cotton destroyed by fire in T. & P. Car No. 13,162 on August 28, 1925, in the - town of Gilliam, was owned by the plaintiffs.
“3. It is agreed that on August 28, 1925, the plaintiff loaded thirty-three bales of , cotton in the above numbered car on the ; morning of said date, and that the car i containing said cotton was on the private spur track of the plaintiff at Gilliam, Louisiana.
“4. It is agreed that billing instructions, had been issued to the railway company’s agent by the shipper consigning the cotton to A. J. Ingersoll & Company at Shreveport.
“5. It is agreed .that bill of lading covering said shipment had been signed by •the agent of the railway company at Gilliam but had not been signed by the shipper.
“6. It is agreed that after the said cotton had been so loaded, on the same day at about 11:30 in the morning, a fire broke 'out in the gin house of Noel Brothers and spread rapidly to the car containing the cotton consuming the gin house and also destroying nine bales of the said thirty-three bales loaded in T. & P. car 13,162, and that the defendant could not have moved said ear out of the pathway of said fire before same ignited.
“7. It is agreed that said fire originated from an unknown cause.
“8. It is agreed that no freight train passed the track on which the car was. standing between the time when the loading of the cotton had been completed and issuance of the bill of lading requested, and the time when the fire broke out.
“9. It is admitted that said nine bales of cotton were of the gross weight of 4710 pounds; that said cotton was a part of a two hundred bale shipment sold A. J. Ingersoll & Company at Shreveport at the price of 23c per pound, making a total value of said cotton destroyed of $1,083.30.
“10,- It is agreed that in interpreting the common law the courts may consult decisions of common law states and jurisprudence of the United States courts and recognized works by text writers as to liability of a common carrier at common law.
“Signed at Shreveport, Louisiana, on this 1st day of December, 1927.”

The lower court rendered judgment in favor of plaintiff, and the defendant prosecutes this appeal.

It is admitted, and there can be no doubt, tha-t, if -the common-law rule is applicable, defendant is liable. However, this shipment was an intrastate shipment from Gilliam, La., to Shreveport, La., and the common law does not apply. The case will have to be decided upon the law of Louisiana applicable to such a case. The last expression of the Supreme Court in this state upon this; subject is in the case of Dejean v. Louisiana Western R. Co., 167 La. 111, 118 So. 822, 823, a case similar-in many respects to the one before us.

In that case plaintiff sued for the value of twenty-five bales of cotton purchased by him from the Rayne Cotton Gin Company and destroyed by fire while loaded in a car of the defendant company on a spur track near the plant of the gin company at Rayne, La. At the time of the fire, the cotton had been consigned to order of Rayne Cotton Gin Company, notify Armand L. Dejean, Opelousas, La. Plaintiff alleged that the loss of the cotton was occasioned solely from the gross negligence of defendant company, and was in no way due to his fault. Defendant denied any negligence on its part, and averred that the fire that burned the cotton had its origin in the gin of the Rayne Cotton Gin Company, and that the destruction of the cotton was brought about by “such accidental and uncontrollable event.”

It specially averred in its answer:

“That said cotton, no doubt, caught fire from either a match or a small piece of steel or other metal when the cotton was ginned, causing a spark to develop which was smothered when the bale was packed, and, afterwards burned its way out from the inside of the bale or bales, after said bales were placed in the car; or from a spark from the fire in the gin for which your defendant was not responsible.”

The court said:

“The liability of defendant company for the cotton received for shipment is fixed by article 2754 of the Civil Code, which reads as follows:
“ ‘Carriers and waterman are liable for the loss or damage of the things entrusted to. their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.’ ”

The court in interpreting the words “accidental and uncontrollable events,” as used in this article of the Civil Code, said:

“They ai;e the equivalents of ‘cas fortuit’ and ‘force majeure’ of the French text. The ‘cas fortuit’ or ‘fortuitous event’ is defined as—
“ ‘That which happens by a cause which we cannot resist.’ R. C. C. art. 3556(15).
“ ‘Those accidents are said to be caused by superior force (“force majeure”) which human prudence can neither foresee nor prevent.’ R. C. C. art. 3556(14).
“ ‘The term “vis major” (superior force) is. used in the civil law in the same way .that the words, “act of God,” are used in the common law, and so also is the term “casus fortuitus.”
“ ‘By the act of God is meant inevitable accident or casualty.’ Brousseau & Co. v. Ship Hudson, 11 La. Ann. 427.
“In the Brousseau & Co. case, the court quoted the following extract from Story on Bailments:
“ ‘By “inevitable accident” is meant any accident produced by any physical cause, which is irresistible; such as a loss by . lightning or storms, by the perils of the seas, by an inundation, or earthquake, or by sudden death or illness. By “irresistible force” is meant, such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable.’
“In Eugster & Co. v. West & Co., 35 La. Ann. 121, 48 Am. Rep. 232, the court said:
“ ‘The Pandectes Francaises teach that on entend par cas fortuits les accidens, qu’on n’a pu ni prevoir ni empecher. So Emerigon on Insurances, 285, by accident (“cas fortuit’’) is meant a superior force which cannot be foreseen nor resisted. In its legal sense, “fortuitous event” is synonymous with “act of God” of the common law.’
“ ‘The carrier must prove the precise cause of the loss. It will not suffice to prove merely due diligence, but the carrier must prove, moreover, .that the accident was occasioned by a fortuitous event, or by irresistible force, or by a defect of the thing itself, or by a fault of the shipper. Fuzier-Herman, Code Civil, vol. 4, p. 419, No. 1. * * *
“ ‘In the civil law loss by fire is not considered a fortuitous event, as it arises almost invariably from some act of man.’ Lehman, Stern & Co. v. Morgan’s La. & Texas R. & S. S. Co., 115 La., pages 8 and 9, 38 So. 875, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818.”

And held that the accident in that case was not occasioned by a fortuitous event nor by irresistible force, and that the defendant railway company was liable, even though it had exercised due diligence in inspecting .the shipment when received and in sealing the calf at the time.

It is clear from this decision that the burden of proof was on defendant to prove the precise cause of the loss, and that the accident was caused by a “fortuitous event” or by “irresistible force” or by defect of the thing itself or by a fault of' the shipper, and it is not enough to prove want of negligence on its. part. In this respect, the defendant has failed. The statement of facts agreed upon shows that the fire originated from an unknown cause, and that the cotton was destroyed by the said fire which has been held not to be a fortuitous event, as it arises almost invariably from some act of man.

As the accident in this case was not caused by a fortuitous event nor by irresistible force, defendant must be held to be liable. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.

McGREGOR, J.

(dissenting). This case, involving principles so vital in our system of law, is. of such great importance, and the opinion and decree handed down by the majority of the court, in my hum: ble judgment, is so contrary to .the spirit of the law, and will work such injustice on the defendant, I feel justified in giving my reasons for dissenting.

As stated in the opinion, the case was tried on an agreed statement of facts, which is copied therein. In my judgment, paragraphs 6, 7, and 8 of this, statement absolutely relieve the defendant" from all negligence and liability. Plaintiff bases its demand on a provision in the bill of lading to the effect that the defendant should be liable according ,to the common law for any losses or damages that might be incurred. The lower court held that the rules of the common law could not govern an intrastate shipment such as this was, and "the opinion just handed down correctly sustains this: view. But the lower court held that even under our law the defendant was liable, and rendered judgment accordingly. The opinion of the majority upholds this view. It i= from the affirmation of this judgment that I dissent.

Under the common law a carrier is practically an insurer. The rule has been stated as follows:

Sectio^i 129, 10 Corpus. Juris:

“The general rule as to the common carrier’s liability with, reference to the goods in his possession as carrier, and regardless of any contractual exceptions, is that he is liable for all loss or destruction of or injury to such goods, no,t occasioned by the act of God or of the public enemy.”

4 R. C. L., sec. 175, p. 696:

“At common law, it has been long settled that a common carrier is responsible for the safe transportation and delivery of goods received by him for carriage, and can justify or excuse a default only, when occasioned.by the act of God or the public enemy.”

In .the development of the rule as stated, it has been held that the carrier is not liable for loss or damage “due to the intrinsic qualities of the goods carried or the act or fault of the shipper,” so that the complete common-law rule has • been stated as follows:

10 Corpus Juris, sec. 129:

“* * * common carrier is liable for all loss or injury not due to the act of God or the public enemy, the inherent nature or qualities of the goods, or the act or fault of the owner or shipper, it being understood that as .to all of these excepted cases the carrier may be liable by reason of his own negligence or that of his ‘ agents, servants, or employees.”

Elliott on Railroads, sec. 1454, p. 2268:

“The modern rule is more liberal, for, to the old common law grounds .which will exonerate the carrier from liability have been added the following, namely, acts of the public authorities, and loss or injury attributable to the inherent nature of the goods. It is sometimes said that another ground has been added by the modern law, namely, that arising from the acts of the shipper, but we think there never was a time when the carrier could be held liable where the loss was caused by the wrong or fault of the shipper.”

5 Thompson on Negligence, sec. 6464:

“The old common law doctrine made no exception in the case where the act of the shipper contributed to the loss. In the growth of the law on the subject, this want of equity in the older view was recognized and corrected, and now the investigation will include within its scope the question whether the shipper himself was free from fault in the • matter. The courts take cognizance of the fact that the shipper himself has duties to perform with reference to the subject of the shipment, and that he should not be allowed to profit by his own default.”

Hutchinson on Carriers, sec. 265:

“The liability of the common carrier by law is, as has been seen, an unusual and extraordinary one, based upon' considerations of public policy which have survived the wonderful change in the circumstances under which they first arose. By that law the common carrier is. regarded as a practical insurer of the goods against all losses of whatever kind with the exception of (1) those arising from what is known as the act of God, and (2) those caused by the public enemy; to which in modern times have been added (3) those arising from the act of the public authority, (4) those arising from the act of the shipper, and (5) those arising from the inherent nature of the goods.”

So that, even though in the beginning under the common law it was held that a carrier was liable in every case except where the loss or damage was caused by an act of God or the public enemy, it was soon found that two additional exceptions had to be added in order .to avoid doing grave injustice to the carrier, viz.: (1) When the loss or damage is due to the inherent nature or qualities of the goods; and (2) when it is due to the act or fault of the owner or shipper. The rule in Louisiana is expressed in the Revised Civil Code, art. 2754, which reads as follows:

“Carriers and watermen are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has, been occasioned by accidental and uncontrollable events.”

Nothing is said in this article about cases where the loss or damage is due to ■the inherent nature of the goods or to the act or fault of the owner or shipper. But in the very nature of things our law does make those exceptions jus.t as the common law has done.

■ It must be conceded that,. regardless of what is meant by “accidental and uncontrollable events” in Revised Civil Code, art. 2754, our law does not go as far as the common law does in holding the carrier liable as an insurer. A clear and concise statement of our law is found in the case of Lehman, Stern & Co. v. Morgan’s La. & Tex. R. & S. S. Co., 115 La. 2, 38 So. 873, 876, 70 L. R. A. 565, 112 Am. St. Rep. 259, 5 Ann. Cas. 818:

“At common law the carrier is considered as in the nature of an insurer against loss by fire, unless it be caused by lightning. ' Hutchinson on Carriers, 182. The civil law does not go to this extent, but it does require the carrier to prove the precise cause of the fire, that it was impossible for human prudence to foresee or prevent the loss, and that no act 'of imprudence or negligence is chargeable to the carrier.”

The majority opinion, handed down herein rests solely and strictly on the case of Dejean v. La. Western R. Co., 167 La. Ill, 118 So. 822, which is the latest expression of the Supreme Court of Louisiana on this subject. This Dejean case cites and is based largely on the Lehman, Stern & Co. case. I do not believe that the writers of these two opinions intended for them to be used as authority in a case like the one under consideration, for it is not parallel with either one of them. In the Lehman, Stern & Co. case the cause or origin of the fire was unknown and unexplained, but it broke out in the cotton itself while it was in the possession of the carrier on its premises. Under that state of facts, whether it be decided according to the common-law rule or our Revised Civil Code, article 2754, the carrier should be held liable, just as was done. In the Dejean case the fire originated and suddenly broke out in the midst of' the cotton itself while it was in the possession of the carrier on its premises. The cause or origin was unknown and unexplained. The defense urged was:

“That said cotton, no doubt, caught fire from either a match or a small piece of steel or other metal when the cotton was ginned, causing a spark to develop which was smothered when the bale was packed, and, afterwards burned its- way out from the inside of the bale or bales, after said bales were placed in the car; or from a spark from the fire in the gin for which your defendant was not responsible.”

It was impossible for the carrier in that case to prove its defense. It was a mere theory or supposition without any testimony to support it. Certainly, under all the rules of interpretation, the carrier could not escape liability by simply suggesting a possible cause or origin of the fire. The plaintiff could just as easily have alleged that the fire no doubt was caused by a match or matches left on the floor of the car and ignited by friction when the bales of cotton came in contact with them in being loaded. In neither of these cases did the defendant carrier show that the cause or origin of the fire was on the premises of the owner or shipper, and that the less or damage was the result of an act attributable to the owner or shipper himself. , But, suppose it had been proved that in those cases the bales of cotton were really on fire when they were delivered to the carrier, and that the carrier did not know it and could not have known it. This is possible, and does happen sometimes. Can it be doubted that the carrier would have been relieved of liability from the loss or damage caused by such a fire? In order to free itself from liability in case of fire, the carrier must prove certain things. In the Lehman, Stern & Co. case, the court said:

“The carrier must prove the precise cause of the loss. It will not suffice to prove merely due diligence, but the carrier must prove, moreover, that the accident was occasioned by a fortuitous event, or by irresistible force, or by a defect of the thing itself, or by a fault of the shipper. Fuzier-Herman, Code Civil, vol. 4, p. 419, No. 1.”

In the case at bar, the defendant has proved “the precise cause of the loss.” It was a fire which originated on the premises. of the plaintiff. Whatever explanation of the fire that is made must be made by .the plaintiff, if at all. Surely there is no rule or law of equity that would require 'the defendant in this case to account for the fire. So far as it is concerned, it was just as “accidental and uncontrollable’’ as if it had been caused by lightning. It came from premises not under its control but under the control and ownership of the plaintiff.

The fundamental reason for the common-law rule . is. clearly set forth in 4 R. C. L. sec. 176. The same line of reasoning . that fixes liability under the common law on the carrier because of the impossibility of the shipper discovering the cause. or origin of. the loss should relieve it of this liability under .the civil law when the cause or origin of the event causing the loss or damage is. upon the premises of the shipper and. beyond the reach or control of the carrier, where it has no right to go to investigate or to put into effect any preventive measures. In the very nature of things, if the fire that caused the loss or damage originated or sprang from the private premises of the shipper, the carrier cannot be held to be responsible in the least degree, and whatever of negligence and liability must be imputed to the shipper or owner of the premises. It. is impossible for the carrier in such a case to explain the fire while all the knowledge or information that can exist concerning its cause or origin must of necessity be in the possession of the shipper, if of any one, and may be concealed by him. In- such a case, in my judgment, a carrier has as completely freed itself from liability by showing that the cause of the loss or damage originated on the premises owned and controlled by the. shipper as it does, by showing that the cause was “accidental and uncontrollable” when it originated in the goods while in its possession. It would violate all rules of equity and justice to require the carrier to explain that which, if explained at all, can be explained only by .the shipper, particularly when the event or happening requiring explanation originated wholly on the premises of the shipper. There are numerous authorities to support this view.

American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 124 Tenn. 57, 134 S. W. 613, 617, 32 L. R. A. (N. S.) 323:

“Even in cases where the relationship of common carrier does exist, the common carrier is not liable, where the loss is caused by the shipper’s act, whether that act be one of negligence, or misadventure, or misfortune.”

Hart v. Chicago & N. W. Ry. Co., 69 Iowa, 485, 29 N. W. 597, 598:

“If the immediate cause of the loss was the act of the owner, as between the parties, absolute justice demands that the loss should fall upon him, rather than upon the one who has' been guilty of no wrong, and it can make no difference that the act cannot be said to be either wrongful or negligent. If, then, the fire which occasioned the loss in question was ignited by the lantern which plaintiff’s servant, by his direction, took into the car, and which, at the time, was. in the exclusive control and care of the servant, defendant is not liable, and the question whether the servant handled it carefully or otherwise is not material. This view is abundantly sustained by the authorities. See Hutch. Carr. sec. 216, and cases cited in the note; also Lawson, Carr. secs. 19, 23.”

Coweta County v. Central of Ga. Ry. Co., 4 Ga. App. 94, 60 S. E. 1018, 1021:

“A carrier, where loss of goods received by it for shipment is shown, is generally liable, unless it is made to appear that the loss was occasioned by the act of God or the public enemies of the state, but certainly a carrier would not be liable, if, after intrusting my. goods to it for carriage, I myself should set fire to them and destroy them, and the fact can be established. * * * ' '
“To deliver for shipment freight in which fire is concealed might or might not be a fraud on the part of the shipper, but • in any event, it must be held to be such a fault on the1 part of the shipper or such a defect in the packing or preparation on the part of the shipper, as carriers are not required to insure against. * * *
“In all cases where goods have Peen delivered to a carrier for transportation, and, where the loss is in no wise attributable to the act of .the shipper himself, the rule should not be relaxed. A carrier may be liable in spite of the most extraordinary diligence. In Ga. So. & Fla. Ry. Co. v. Barfield, 1 Ga. App. 203, 58 S. E. 236, we held that ‘no injury can be said to be the act of -God which can, under any fair view, be .attributed to the negligence of men.’ But where one, either before or after shipment, directly or indirectly, intentionally or unintentionally, injures or destroys his own property, he cannot make another pay for' it.”

In the case at bar, the loss or. damage was caused by an event which could not in the remotest degree be attributed to the negligence .or fault of the carrier. If there was unexplained negligence, it must be imputed to the shipper, the only one who might have the power of explanation. I consider it almost unconscionable to hold the carrier liable in such case. If it becomes established in our jurisprudence that a carrier is liable for the destruction of cotton by fire after it has been loaded into the carrier’s car but is still on the private tracks of the shipper, and the fire originates wholly within the gin house owned, controlled, and operated by the shipper, the flood gates, of fraud on the • part of shippers will be opened wide, and the results might be disastrous. In a case of this kind, the carrier is just as helpless and powerless as the shipper is when the goods are lost or damaged from cause originating out of his presence or control and entirely off his premisos. The situation which developed the rigorous rule against the carrier is entirely .reversed, and by the same process of reasoning the carrier must be relieved of liability.

In the agreed statement of facts, it is stipulated that the fire which destroyed the, cotton “broke out in the gin house of Noel Brothers and spread rapidly to the car containing the cotton, consuming the gin and also destroying nine bales of the said .thirty-three bales loaded in f.' & Pi car #13162, and that the defendant could not have moved said car out of the pathway of said fire before same ignited.” This states the “precise cause of the loss” to have been a fire originating on the premises of the shipper. As between .the shipper' and' the carrier, the ■ fault was that of the shipper. ' So I hold that, under the express terms of the law as stated in the Lehman, Stern & Co. ease, the defendant is not liable. Everything .that the court said in that case that the carrier should' prove has been admitted. If the defendant is liable in this cas.e, then from the standpoint of the plaintiff it is a great misfortune that it had not loaded into the cars of defendant all the cotton on the gin house premises, as well as all the immovable property that could be loaded into cars. It would have received free insurance on all its property.

For these reasons, I most respectfully dissent from the opinion of the majority.


author: DREW, J.

text:
    No. 3365
    Second Circuit
    MOORE v. HAMILTON
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff t sued on open account for $153.65, with legal interest thereon, alleging that it had sold to defendant building material and supplies between the dates of October 8, 1925, and September 9, 1926; that certain payments had been made by defendant, leaving a balance due of $153.65, as shown by itemized account attached to the petition.

Defendant in answer admitted purchasing certain material and supplies from plaintiff; admitted the payments alleged by plaintiff, but denied that any balance is owed by him to plaintiff. That he sold and delivered upon open account to the plaintiff certain pipe, machinery, equipment, and appliances, as is shown by itemized list attached to answer, for the price of $217.20; that said purchase price is wholly unpaid, except such portion thereof as has been offset and extinguished by any balance due by him to plaintiff. He specially pleaded the discharge of his indebtedness to plaintiff by compensation and offset, and alleged that a balance is due him of $63.55.

Assuming the position of plaintiff in re-convention, he alleged that plaintiff is due ' him- $63.55, with legal interest thereon, being the difference between the amount due him by plaintiff after compensating the plaintiff for .the amount due to it by defendant. He prays for judgment rejecting plaintiff’s demands, and for judg-' ment in reeonvention in the sum of $63.55, with legal interest thereon from judicial demand until paid.

Plaintiff filed a motion to strike out the reconventional demand of defendant, for the reason that both plaintiff and defendant were residents of Caddo parish, La., and that the demand made in reconvention is foreign to .the transaction which is the basis of plaintiff’s suit and did not arise out of the same transaction. The motion to strike out was overruled by the lower court. The lower court rendered judgment in favor of plaintiff for the amount prayed for, and rejected as of non-suit the demands of defendant pleaded in compensation and offset on the grounds that the debt pleaded was not equally liquidated and demandable; and the. reconventional demand for the reason .that it is not connected with and incidental to the demands of plaintiff, reserving to plaintiff the right to proceed by separate suit on said demands.

After trial in the lower count and before judgment was rendered, plaintiff filed a plea of one year’s, prescription, alleging that the testimony in the case showed that the articles alleged to have been sold by defendant to plaintiff were not sold, but were converted by an employee of plaintiff, and the conversion took place more than one year prior to the filing of demand in compensation, set-off, and in re-convention. This plea was not passed on by the lower court. Plaintiff has answered defendant’s appeal, and prayed that the plea of prescription be sustained by this court, and that the motion to strike out the reconventional demand be likewise sustained.

Defendant admits that he purchased from plaintiff the articles sued on and owes plaintiff the amount claimed, unless it has been offset by the amount he claims the plaintiff owed him. A plea of compensation or set-off admits the debt sued on; therefore, that part of the judgment of the lower court in favor of plaintiff is correct, unless the plea of compensation or set-off is sustained.

The motion to strike out the reconventional demand of defendant was properly overruled, for the reason that defendant specifically alleged that he had sold to plaintiff certain machinery, etc., at an agreed price, and that said price was past due and unpaid. He did not sue in reconvention for the entire purchase price, but set up. his claim as- an offset, and, after striking a balance between the amount he owed plaintiff and the amount he claims plaintiff owed him, he asks for judgment in reconvention for the difference. This procedure is authorized by articles 366, 367, 368, and 371 of .the Code of Practice.

If defendant’s • claim against plaintiff is a just claim, and if plaintiff is indebted' unto defendant, as claimed by defendant, then both claims were liquidated and equally demandable.

• “A claim is a ‘liquidated claim’ where the. amount due is fixed by law or has been ascertained and fixed by the parties.” 3 Words and Phrases, Second Series, page 148.

• Both are open accounts for machinery and materials sold at an agreed price. Defendant’s claim in compensation and re-convention is either due or not due. It is properly pleaded, and there is no reason why it should have been non-suited. It should be allowed or rejected, and the judgment of non-suit is erroneous.

■ The fact that defendant admitted the claim of plaintiff and plaintiff denied the claim of defendant does not of itself change the character of the claims. ’ Plaintiff’s claim was for merchandise sold in the ordinary course of trade upon open account. Defendant’s claim was as definitely fixed as to price. The price agreed upon by defendant and plaintiff’s superintendent was 60 per cent of the listed price for the same articles when new, and defendant billed plaintiff for that price, which was $217.20.

If defendant’s claim is just, then the two debts were simultaneously in existence, and, if they did co-exist, they were equally due and demandable and meet the requirements of articles 2208 and 2209 of the Civil Code.

The testimony of defendant’s, son, who was fully authorized by defendant to act for him and whose testimony is not contradicted by any witnesses, is that he sold the merchandise to the plaintiff for the price of 60 per cent of like merchandise when' new, the articles sold being all secondhand goods. That the purchase was •made for plaintiff by a Mr. Meredith, superintendent of plaintiff’s sand works in Shreveport. That some time later he presented the bill to plaintiff at its place of business in Shreveport and was informed that Mr. Meredith was then in Lewisville, Ark., and the bill would have to be sent to him for his “OK.” Plaintiff did not deny the bill at the time, neither did it deny the authority of Mr. Meredith to make the purchase. He testified that at a later date he presented the bill to Mr. Meriwether, of the plaintiff company, and that Mr. Meriwether stated that he was going to return the ' goods, he could not use them, and said: “I have had to weld the pump and I am going to return it.” Then he turned to one of his employees and said: “Sen*d that back from Lewisville tonight,” that he refused to accept it back.

Defendant testified that some time after the transaction some one telephoned from plaintiff’s- place of business to him to know what the price of that machinery was. He did not remember the name of the person who telephoned or that he called a name. That defendant told him the price, and nothing else was said. That after waiting for some time, he sent another bill to plaintiff and plaintiff addressed the following letter to him:

“Sept. 24, 1926.
“W. E. Hamilton, 25 American Bank Bldg., City.
“Dear Sir: In reference to your statement of September 3rd, listing various parts of machinery and showing a price of $217.20. This price is exorbitant and , we have all this material together and are ready and willing to deliver it to you wherever you desire, and are also willing to pay you a reasonable rental for the use of this material, however, we do not propose to pay for it as invoiced, and it was not our intention to buy this material in the first place. It was our understanding you were loaning it to us. Kindly give us some disposition on it and render us a bill for the use of same.
“We must insist that you take care of •the material bill you owe us immediately, 'otherwise, we will be compelled to turn the account over to our attorney for collection.
“Very truly yours,
“Meriwether Supply Company,
“By-- Vice-Pres.”

The uncontradicted testimony of defendant and his son clearly shows that the machinery, etc., sold by defendant to plaintiff was in the possession of plaintiff, first, at its sand works in Shreveport, and later was sent by plaintiff to Lewisville, Ark., where the evidence discloses plaintiff was operating a gravel pit. Plaintiff had knowledge that defendant was claiming the purchase price due from said sale, and did not in any way repudiate the action of its superintendent in buying the machinery, and it is not shown that plaintiff ever denied the authority of Mr. Meredith to make the purchase until on the trial of this case in the lower dfeurt. The court is not favored with the testimony of Mr. Meredith, who was at the time of trial in the lower court then in plaintiff’s employ and accessible as a witness. Plaintiff did not produce him; therefore the testimony . of defendant’s son as to the sale and price stands alone and uncontradicted, and we taka it as true.

Plaintiff kept the machinery for many months, sent it to its. gravel pit in Arkansas, used it, and rewelded it. Whether Mr. Meredith had authority to make the purchase for plaintiff or not is immaterial, as the acts of plaintiff in accepting the benefits of his purchase for it and its failure to repudiate the act of Meredith when it was brought to its knowledge are a ratification of his acts such as. to bind plaintiff for the purchase price. Civil Code, art. 3010; Succession of Gilmore, 154 La. 105, 97 So. 330; Flower et al. v. Jones & Gilmore, 7 Mart. (N. S.) 143; 21 R. C. L. 923.

When plaintiff was notified- of the contract of purchase made for it by Meredith, its superintendent, it was its duty to immediately repudiate it. Plaintiff did not repudiate the act of Meredith in making the purchase, and is therefore bound for the price agreed to by Meredith. Flower et al. v. Jones, supra; Pitts v. Shubert, 11 La. 286, 30 Am. Dec. 718; Bonneau v. Poydras, 2 Rob. 1; Ward v. Warfield, 3 La. Ann. 468; Szymanski v. Plassan, 20 La. Ann. 90, 96 Am. Dec. 382; Mangum v. Bell, 20 La. Ann. 215; Succession of Gilmore, supra.

We conclude, therefore, that at the time of the filing of this suit plaintiff was indebted unto defendant in the sum of $217.-20, on open account, more than enough to compensate or offset the amount that defendant owed to plaintiff by. $63.55, and plaintiff’s demands should have been rejected and defendant should have had judg- . ment in reconvention in the sum of $63.55, unless, the plea of prescription of one year is held to be good as to the price of the pump.

Plaintiff contends that the pump was converted by- Meredith and not purchased. Therefore, conversion oeing a tort, that it is prescribed by one year. The evidence, however, does not sustain his contention. Defendant testified that some of the equipment was originally taken without his knowledge, and, after the remainder had been taken with his knowledge and consent, that he and Mr. Meredith checked it all and made a list of it at plaintiff’s place of business, and agreed on the price. Without the agreement to sell and buy and the fixing of the price after some of the property had been taken by Meredith, there might be some merit to plaintiff’s contention that the property was converted. But since there was a contract to buy and sell and the sale made, there is no merit to plaintiff’s, contention, and the plea of prescription is overruled.'

A further contention of plaintiff is that it has returned the property to defendant. The evidence shows that, some time prior to the filing of the suit, plaintiff had one of his employees to take the machinery and equipment bought from defendant and unload it at an old brick yard in Bossier City that defendant had not operated in more than ten years. That defendant or none of his agents or employees were notified that the machinery had been placed there, and defendant did not know of it until it was testified to on trial of the case in the lower court, at which time it was shown that a negro was using the pump as a chopping block to cut wood. If plaintiff had the right to return the machinery and equipment, such a return as was made would not have relieved him. However, we. think it had no such right. The property was that of plaintiff, and it owed defendant for it. Without an agreement with defendant to take the property back, plaintiff could not relieve itself of its obligation by returning it.

We think the case is clearly with the defendant, and that the judgment of the lower court is erroneous, and should be reversed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed; that the demands of, plaintiff be rejected as having been compensated and offset by the claim due by plaintiff to defendant; and, in reconvention, that defendant have and recover judgment against the plaintiff, Randle T. Moore, receiver of the Meriwether Supply Company, Incorporated, in the full sum of $63.55, with legal interest thereon from judicial demand' until paid; and all costs.


author: JANVIER, J.

text:
    No. 13,630
    Orleans
    EDDY v. WEATHERS (W. H. Hodges & Co., Inc., and Logan & Avegno, Interveners)
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme. Court.)

      Andrew H. Thalheim, of Gretna, attorney for plaintiff, appellant.
    Prowell, McBride & Ray, of New Orleans, attorneys for interveners, appellees.
   JANVIER, J.

Paul C. Weathers, a dairyman, became indebted to Lawrence C. Eddy, operator of a feed and merchandise store, and, in order to provide security for the payment of this debt, executed a note secured by mortgage on certain real estate, cattle, horses, mules, and autotrucks.

The note was not paid at its maturity, and foreclosure proceedings were instituted by the mortgage creditor, Eddy.

Prior to the sale of the mortgaged property, two interventions were filed—one by W. H. Hodges & Co., Inc., and one by Logan & Avegno, a commercial partnership —each intervener claiming a vendor’s lien on certain cows seized by the sheriff under the foreclosure proceedings.

W. H.-Hodges & Co., Inc., in the intervention and supplemental intervention claimed vendor’s lien on seventeen cows, and Logan & Avegno claimed a similar lien on nine of the cows. Interveners in both cases pointed out to the sheriff the cows on which they claim their liens existed, and all of the cows pointed out were sold separately by the sheriff.

The distribution of the proceeds of these separate sales is the matter with which we are now concerned. Though the facts involved in the two interventions are not identical, and though we have reached different conclusions in the two matters, the principles to be considered are sufficiently similar to permit us to consider the two interventions together.

At the outset it might be well to call to mind that a vendor’s lien, even though not recorded, is superior in rank to a chattel mortgage subsequently executed by the vendee, so long as the property remains in the possession of the vendee. Civ. Code, arts. 3217, 3227; Weiss v. Hudson Construction Co., 151 La. 1, 91 So. 525; Continental Bank & Trust Co. v. Succession of McCann, 151 La. 555, 92 So. 55. Therefore, if the interveners had prior vendor’s liens which were not lost by any act on their part, and if the property subject to their liens remained in the possession of the vendee until the sales, and if it was separately sold, the rights of the interveners' to the proceeds of the sales cannot be defeated by the claim of the conventional mortgagee.

It is contended by the mortgagee, however, that as to both interveners the liens have never come into existence because the various sales of cows, represented merely items on an open account, on which account payments had been made and on which account notes had from time to time been accepted; or, in other words, that the situation is analogous to that which the Supreme Court found to have existed in Porrey et al. v. Strange, 158 La. 941, 105 So. 21, 23, in which that court said:

"The Continental Supply Company had no vendor’s lien upon all the movable property on the leased premises. Its claim was for a balance due on a running account. The law allows no vendor’s lien for a general balance upon all the property sold and delivered and charged for in said account. The law is, that the vendor’s lien extends only to the very thing for which the price has not been paid, and only to the extent of the unpaid price thereof. * .* *”

As to the intervention of Logan & Avegno, such contention is manifestly without merit. They made but few sales, were able to identify each cow still in existence, and the circumstances do not warrant our finding that they had made sales on- open account. The cows. • claimed by them to be subject to their lien and which were separately sold brought the sum of $231.50, and they are entitled to this sum.

The case of W. H. Hodges & Co., Inc., is not so simple of solution. The record shows that that corporation had been selling cattle, hogs and various other stock ■to the said Weathers for a considerable time, that at the time of the foreclosure Weathers' was indebted to it in the sum of $1,081.75, representing the balance due' on a note which had been given by Weathers and into which had been consolidated all of the various outstanding balances due .by him to Hodges & Co.,. Inc., .for a large number of purchases. On these various purchases small amounts had been paid on account at different times. A study of the. records introduced in evidence convinces us that the sales made were made on . open account, and that no lien - in favor of the vendor resulted. Since we do not feel that. Hodges & Co., Inc., is entitled to a vendor’s, lien, it is unnecessary to. discuss the contention raised by the foreclosing creditor :to the effect that, that corporation, by bringing a separate suit against Weathers, and 'by failing in that suit to assert its vendor’s lien, is now estopped to do so.

Another very interesting question, however, is presented among the contentions of .the Hodges. Company, Inc., and that is that to a large extent the mortgage from which the foreclosure sale resulted was defective, in that it did not contain a full and complete description of the various cows intended to be included therein. We find it unnecessary to discuss the question of whether or not the description contained in the act of mortgage was sufficient, for the reason that we do not believe that the intervener can be heard to attack the act of mortgage under which the sale was had because the intervener went into that proceeding and acquiesced in the sale under that act of mortgage, merely claiming that he was entitled to the proceeds by priority over the mortgage creditor. If, as a general creditor, the intervener had any interest in defeating the claim of, the mortgage creditor, his rights should have been asserted in some other proceeding, and he cannot be heard, after intervening in the foreclosure suit and after acquiescing in a sale in that suit, „to question the rights of the mortgage creditor. As we said in Valley Securities Co., Inc., v. DeRoussel, 133 So. 405, 407, decided March 23, 1931:

“Interveners cannot in the same proceeding attack the validity of a mortgage on which the foreclosure proceeding is instituted and the order of seizure and sale issued, and also ask that they be paid by preference out of the proceeds of the sale. They cannot be permitted to attack the authenticity of the mortgage, which is the basis of the foreclosure proceedings, and, at the same time, claim the proceeds of the sale.”

We also find that the Supreme Court has discussed this identical question in Albert Pick & Co. v. Stringer, 171 La. 131, 129 So. 731, 735, in which that court said:

“It is our opinion that tha third opposition is not the remedy afforded for determining the rank of valid and subsisting claims. The law provides another remedy for determining the validity or legality of such claims. This court has uniformly held that an opposition will not lie where the opponent attacks the validity of the judgment or mortgage and in the same action claims to be paid by preference out of the proceeds realized from the sale of property.”

The court below held that the intervener, Hodges & Co., Inc., was entitled to be paid by preference and priority the sum of $797.25. This amount was plainly erroneous, since the property claimed by that corporation brought only $576.75, but this error is of no importance, since we are of opinion that its intervention as a whole should be dismissed.

The trial court also rendered judgment in favor of the interveners, Logan & Avegno, in the sum of $327, whereas only $231.50 was realized from the sale of the cows on which these interveners claimed vendor’s lien, and the judgment in their favor must be amended to that extent.

It is therefore ordered, adjudged, and decreed that the judgment on the intervention of Logan & Avegno be and it is amended by reducing the amount thereof from $327 to $231.50, and. that, as thus amended, it be affirmed. It is further ordered, adjudged, and decreed that the judgment on the intervention of W. ' H. Hodges & Co., Inc., be and it is annulled, avoided, and reversed, and that there now be judgment against the said W. H. Hodges. & Co., Inc., dismissing the intervention filed by the said corporation at its cost.