text:
    No. 10,895
    Orleans
    BOCCA, Appellant, v. SOULANT
    (July 5, 1927. Opinion and Decree.)

      (Syllabus ~by the Court)

    1. Louisiana Digest — Libel and Slander— Par. 1, 58, 63.
    Malice expressed or implied is of the essence of slander, unless it is proved no action will lie.

      2. Louisiana Digest — Libel and Slander— Par. 4, 5.
    Words uttered without malice and where none can he implied carry with them no pecuniary liability.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Mrs. John Bocea against Seraphin Soulant.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Harry McEnerny, of New Orleans, attorney for plaintiff, appellant.
    Joseph Rosenberg, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff sues the defendant for alleged slander.

She alleged that on June 8, 1926, the defendant called at her home to pay to her certain insurance money due to her husband, and also to collect from her husband certain insurance premiums due to certain insurance companies for which the defendant collected premiums and paid benefits; that the defendant paid to plaintiff eight dollars and eighty cents, being the amount of the weekly indemnity of $10 due to plaintiff’s husband by an insurance company represented by the defendant, less a premium of one dollar and twenty cents due by plaintiff’s husband to the insurance company; that on the following day defendant called upon plaintiff and told her that instead of giving her $8.80, he had given her eight dollars over and above that amount; that plaintiff denied the statement, and asserted that she had received only $8.80; thereupon defendant told plaintiff that she had received eight dollars too much and accused her of having received that money knowing that it was more than what was due to her and of refusing to return it to him, which constituted slander of plaintiff’s reputation; plaintiff averred that on June 15th defendant again called upon her and repeated his charges; that defendant made his accusations in presence of certain of plaintiff’s friends and on June' 22nd stated the accusations over again; that these charges inferred that plaintiff was a thief, dishonest, and unreliable, and have caused her worry, annoyance and inconvenience and humiliation, for all of which she claims $300 damages.

The defendant excepted that the petition was vague and indefinite and disclosed no cause of action. For answer he admitted that he had called at plaintiff’s house to pay money as stated in the petition but denied all other allegations except as admitted below; he averred that he inadvertently overpaid the plaintiff eight dollars which he discovered later; that he called on plaintiff the next day to investigate the matter, but denied that he insulted or defamed the plaintiff.

There was judgment for the defendant and the plaintiff has appealed.

The defendant testified that he was an insurance agent and had been collecting premiums from Mr. and Mrs. Bocea for the last ten years; he knew Mrs. Bocea long before' he began collecting from her; he is 70 years of age; on June 8th he called at their home to pay • her husband a sick benefit and to collect her insurance; the plaintiff received him, to use his own language:

“She presents me her books and I mark the books; she handed me some money and I told her I have got to pay you and I gave' her the blank to sign and I gave her another one and I put the blank in my pocket and I took my pocketbook, out; my habit is to put the one-dollar bills in front, the two-dollar bills, then the ten-dollar bills. I pulled two bills out, expecting to pull two two-dollar bills, and I saw the bottom, but not the top bill; I took then 25 cents and 50 cents and 5 cents, then I took two bills out of my pocketbook and handed it to her, so I saw the botttom bill but not the top, and I said here is $4 and $2 more, I said that is $10.”

He further testified that when he leaves his house in the morning he takes a certain amount for change; that morning he had three ten-dollar bills and two two-dollar bills; when he got home he had only two ten-dollar bills and one two-dollar bill; he gave no money to any one except the plaintiff; he gave her a ten-dollar bill for a two-dollar bill; the next morning he called on plaintiff and said to her: “I made a mistake when I paid you, I gave you a ten-dollar bill for a two-dollar bill.” The plaintiff denied it. It would serve no purpose to copy all this witness’ testimony. It all consists of the details given by him to prove to the plaintiff what he believed to be true, that he gave her a ten-dollar bill for a two-dollar bill and her answers to him to disprove his conjectures. When he returned to plaintiff’s house the following week to pay the plaintiff some more money she said to him: “Don't make no mistake this time, you must have dropped your money”; so the discussion was renewed; the defendant told the plaintiff: “$8 is a very nice sum, you can buy 'a nice dress and sport Canal Street on my head”; he had intended paying plaintiff $10 less $1.20, by giving her two two-dollar bills, four one-dollar bills and 80 cents in change; he said to the plaintiff: “I am not accusing you of stealing, but I gave it to you by mistake”; the only persons present at this conversation were a girl from across the street and Mr. Jacobs, also a neighbor plaintiff sent for, and her husband; no one was angry; he has continued to call on the plaintiff and to collect her dues.

The plaintiff testified as follows:

“On June 8th, Mr. Soulant came to my house to collect and I was supposed to pay him on the Globe and Acme, but the Globe was the insurance I paid for my husband, $10, so when Mr. Soulant came I went to the door and he was supposed to give me $10. He deducted $1.20 and left me $8.80; so he went oíf and I was sitting on my steps and I recounted my money and went off and he came back the next morning and said: ‘Mrs. Bocea, how much money did I give you yesterday?’ I said ‘$8.80.’ He said, ‘You are sure I did not give you a ten-dollar bill?’ I said, ‘If you did I did not receive it.’ So he went off and on the 15th of June he came back and I paid him my insurance, $1.20, and I said, ‘Mr. Soulant, did you find your money?’ He said ‘No, how could I find my money when I gave you the $10?’”

The plaintiff testifies that no third person was present at that conversation.

Plaintiff adds that the defendant gave her six one-dollar bills, one two-dollar bill and 50 cents, 25 cents and 5 cents. The defendant said in presence of Mr. Jacobs and of Mrs. Serio that “he knew he gave it to her.” When the defendant remarked to the plaintiff that she could buy a dress with $8 she replied: “I hope you buy a ten-dollar shroud.” When asked if she had invited him in she said, “No, sir. I don’t ask no insurance men inside my doors.”

Mrs. Sam Serio says that she heard the defendant say that he was positive he had given her the extra ten-dollar bill and that Mr. Jacobs was there. But at the same time she swears that the defendant spoke not of an eight-dollar dress, but of a ten-dollar dress.

Mr. Jacobs says he heard the plaintiff ask the defendant: “Have you found your $10?” The latter answered: “No, how could I find- it when you had it?” He also heard the remark about the dress and the shroud. They were both excited.

John Bocea, plaintiff’s husband also testified that he was in bed on the 15th; he heard the conversation between his wife and Soulant. He heard her ask him if he had found his $10 and his answer, how could he, when she had it; he called Mr. Jacobs in; he also heard the words concerning the dress and the shroud; the defendant still collects at their home.

The law of slander is thus stated by our Supreme Court:

“Malice is of the essence of slander, unless it be alleged, no action can be maintained. It need not be expressly proved; it may be implied; but it must be proved.” 1 H. D. 813 No. 8-21-308; Harry vs. Constantin, 14 La. Ann. 782; Haney vs. Trost, 34 La. Ann. 1146.
“Words uttered without malice and under circumstances from which no malice is in law implied, carry with them no pecuniary responsibility.” Beebe vs. McNeil, 8 La. Ann. 130; Lester vs. Corley, 45 La. Ann. 1006; Mihojenich vs. Bodechiel, 45 La. Ann. 618.

When a party called another a rogue in the hearing of bystanders in a moment of irritation, and in reference to his unwillingness to settle a debt due him, and no injury resulted from such transient expression of angry feeling, held that such a case of defamation is not actionable. Graham vs. Sykes, 15 La. Ann. 48; Levy vs. McCan, 44 La. Ann. 528, 10 South. 794; 6 La. App. 636.

We see no malice express or implied in the language used by the defendant to the plaintiff under the circumstances of this case. Having ascertained the loss of a ten-dollar bill and entertaining the conviction that he had, through error, paid that bill to the plaintiff, mistaking it for a two-dollar bill, he had the perfect right to return to plaintiff’s house and to inquire from her whether he had made such error. This he did. He' merely inquired from the plaintiff to ascertain whether he had or not. He went no further, and passed no remark, nor expressed any opinion upon the subject. When he returned to the plaintiff’s house a week later to collect premiums, plaintiff herself provoked an opinion from the defendant by asking him whether he had found his ten-dollar bill. His answer was to her alone outside of the hearing of any one. It merely expressed his conviction. She gathered the other female witnesses, and her husband sent for Jacobs. But for her speech and her conduct none would have heard of the incident. She gave it publicity. But all knew that it was a harmless misunderstanding between the plaintiff and the defendant, and none believed that the plaintiff had kept the ten-dollar bill. The husband did not believ.e it, nor did the two sisters, Miss Noto nor Mrs. Serio, for it was they who went to Gaudet’s Drug Store for the plaintiff to exchange bills of small denomination for a ten-dollar bill which they gave to plaintiff.

If Jacobs heard defendant’s remark it was because the plaintiff’s husband sent for him.

The whole affair is not actionable in the-absence of malice and injury.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,247
    Orleans
    MAYRONNE AND SONS v. EDDY AND SONS, Appellant
    (May 23, 1927. Opinion and Decree.)
    (June 20, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 42, 46, 64. — Obligations—Par. 87.
    The manner in which a doubtful contract has been executed by the parties or by one with the assent of the other furnishes a rule for its interpretation.
    2. Louisiana Digest — Obligations—Par. 81.
    In a doubtful case an agreement is interpreted against the obligor.
    3. Louisiana, Digest — Obligations—Par. 74.
    When the doubt aries from the want of explanation one of the parties should have given the construction favorable to the other party shall be adopted.
    Appeal from 24th Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Jules Mayronne and Sons against Lawrence C. Eddy and Sons.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    A. H. Thalheim, of New Orleans, attorney for plaintiffs, appellees.
    C. J. Larkin, Jr., L. A. Middleton, of New Orleans, attorneys for defendants, appelllants.
   CLAIBORNE, J.

This is a suit for the price of lumber.

The plaintiffs allege that on August 21, 1924, they sold to the defendant certain building lumber amounting to $265.93 for which they claim judgment with privilege.

The. defendant filed a general denial.

There was judgment in favor of ¡plaintiff and defendant has appealed.

The bill is for 6998 feet of lumber, tongue and grove flooring, board measure.

The facts are that the defendant submitted to the plaintiff a list of lumber to be furnished and for a price thereon. In that list is the following item:

“Flooring 2x6 T. and G. 1 Heart 6000 sq. ft. 1 common.”

The plaintiff answered the submission as follows: “July 3, 1924. We agree to furnish only the articles named and described below for $1648.19.

(Signed) “Jules Mayronne and Sons.”

Then follow, item by item, a list of articles they engage to furnish; among those articles is the following item:

“Length No. 1, Grade No. 117, 6000 feet Drop siding.”

The plaintiffs furnished all the articles mentioned on their bid, -including 6000 feet and were paid for them, less 2 per cent discount for cash.

Subsequent to July 3, 1924, the defendants claimed a larger quantity of lumber, amounting tq $265.93, which the plaintiff sent them.

Defendants’ contention is that the subsequent delivery was included in the plaintiffs’ bid of July 3rd for the reason that the defendants had called for bids on 6000 “square feet,” and 'plaintiffs bid for “6000 feet” meant 6000 square feet, as stated in the submission, and that plaintiff had delivered prior to the last delivery only 6000 feet board measure.

In other words, plaintiffs’ contention is that the lumber sued on was not included in the original bid and the price of $1648.19 which was paid but formed the subject of a subsequent order and contract.

The defendants’ contention is that the plaintiffs, by the submission and by their bid, were obliged to furnish 6000 square feet or 12,000 feet board measure, while they furnished, under said submission and under their bid only 3000 square feet or 6000 feet board measure; and that their subsequent delivery of 6998 feet board measure was only a completion of their original bid.

The solution of the differences between plaintiffs and defendants depends upon the construction of the plaintiffs’ bid whether it was for 6000 square feet or for 6000 feet board measure.

R. W. Mayronne testifies that lumber is sold by board feet measure.

N. P. Brown, president of the New Orleans Retail Lumber Dealers Association, says that the only two terms used in the lumber business are board measure and lineal feet; he never dealt in square feet, board feet is the way they sell lumber; “feet” mean “board feet,” lumber is not sold on square feet basis; he could not deliver 6000 square feet of 2x6 flooring; he would not know how. But he furnished the plaintiff the lumber.

L. C. Eddy is manager of the defendant company, dealers in groceries and grains, he knows nothing of lumber terms or grades; he employed T. L. Perrier, architect, to prepare plans and specifications for a building. Perrier prepared the list for submission to the lumber dealers; Eddy submitted those plans to Mayronne and discussed them with him; Mayronne never told him there was a difference between square measure and board measure and lineal measure; he accepted Mayronne’s bid because it was the lowest; immediately upon checking up the lumber on receiving it, he perceived there was a shortage and notified plaintiff by phone; without explanation, the shortage was corrected by plaintiffs sending the list of lumber presently sued for; at that time plaintiff did not say that he had already delivered the lumber his bid called for; he received his check for the $1648.19 without demanding payment of the lumber presently sued for; he did not send defendant a bill for the same; the first notice defendant got was a letter from plaintiffs’ attorney on November 24th.

The • list submitted by defendant to plaintiff calls for 1000 square feet; 6000 square feet would require 12,000 feet board measure.

Article 1956 (1951) of the Civil Code provides that “when the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both or by one with the express or implied assent of the other furnishes a rule for its interpretation.” State vs. James, 47 La. Ann. 176.

At the time, September 3rd, the plaintiff received the check of $1615.23, in payment of the lumber furnished by them; they made no claim for any other amount; they never sent defendants a bill for the amounts presently claimed; the first intimation the defendant had of the claim was an attorney’s letter dated November 24th.

At the time the plaintiffs made their bid they should have called the attention of the defendant to the difference they intended to make and were making between square and board measure. The Civil Code, Article 1958 (1953), provides:

“But if the doubt or obscurity arises for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his the construction most favorable to the other party shall be adopted whether he be obligor or obligee.”

Moore & Co. vs. Clapp, 36 La. Ann. 695; Ronaldson vs. Hamilton, 6 La. Ann. 204.

What is doubtful in an agreement is to be interpreted against him who has contracted the obligation. C. C. 1957. Harper vs. Citizens Bank, 51 La. Ann. 511, 25 South. 466; Field & Co. vs. N. O. Delta Newspaper Co., 20 La. Ann. 36.

The plaintiffs had contracted the obligation to furnish the lumber; any ambiguity must be construed against them.

It is therefore ordered that the judgment herein be reversed and set aside and it is now ordered that plaintiffs’ demand be rejected at their cost in both courts.

Judgment reversed.


author: ODOM, J.

text:
    No. 2207
    Second Circuit
    DIXIE MILLS SUPPLY CO. v. TOWN OF HOMER, LA.
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 232; Payment — Par. 25.
    The mere fact that a receipt on its face expresses that it is in full of all demands or of certain demands does not make the instrument of such contraetural nature as to preclude the admission of parol evidence to vary its effect.
    2. Louisiana Digest — Evidence—Par. 228, 232; Payment — Par. 25.
    A check which on its face recites that it is a settlement in full and is accepted by the creditor as written is only prima facie evidence of the fact that it recites and is open to rebuttal by parol.
    3. Louisiana Digest — Payment — Par. 12, 14, 25.
    Where a check for less than the amount of the debt reciting on its face that it is payment in full of all demands is mailed to a creditor and is accompanied by a letter specifically stating that if the creditor is not willing to accept the amount of the check in full payment of the debt_ the check is to be returned and the check is accepted and the amount credited on the debt — held that the debt is discharged.
    Appealed from the Third Judicial District Court of Louisiana, Parish of Claiborne. Hon. J. E. Reynolds, Judge.

      Action by Dixie Mills Supply Company, Inc., against The Town of Homer, Louisiana.
    • There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    P. E. Brown, of Arcadia, attorney for plaintiff, appellant.
    McClendon, Morelock & Seals, of Homer, attorneys for defendant, appellee.
    Reynolds, J., recused.
   ODOM, J.

This suit is to recover of the Town of Homer the sum of $516.60 with interest, alleged to 'be the balance due on a bill of piping sold and delivered to the town and used by it in the construction of its water mains.

The defense is, that there was a compromise agreement by which a third party paid the sum of $8,000.00 in full settlement of the account.

The judgment of the lower court rejected plaintiff’s demand and it has appealed.

OPINION

In the months of March and April, 1920, the Town of Homer, through the mayor and board of aldermen, purchased from plaintiff a lot of piping for the construction of its water mains, the bill amounting, in the aggregate, to $8,516.60.

The correctness of the account and the amount due was never disputed by the town; but the town, it seems, had no available funds with which to pay the bill.

On September 30, 1920, the town, by resolution adopted by the, mayor and council, agreed to pay the bill without interest for the first twelve months, but agreed that if the amount was not paid by the end of that time interest at the rate of six per cent, should be paid. The amount was not paid at the end of twelve months and the plaintiff made insistent demands for its money.

On September 11, 1922, the town still not having the funds with which to pay the bill, W. A. McKenzie, a member of the board of aldermen and chairman of the finance committee, sent plaintiff his personal check, payable to it, for $8,000.00, accompanying the check with a personal letter in which he stated that if plaintiff was willing to accept the check in full settlement of the account, to keep and cash it; otherwise to return it to the writer. At the bottom of the check/ he wrote these words:

“Pipe account. Town of Homer. In full settlement.”

Plaintiff accepted the check.

On March 21, 1924, plaintiff brought this suit for the balance of the account.

The suit is defended by the town on the ground that plaintiff accepted the $8,000.00 paid by McKenzie in full settlement of the amount due.

The record does not contain either the original or copies of the correspondence which passed between plaintiff and the defendant or McKenzie. It is stated that they were introduced in evidence but were not made part of the record. But there is no dispute as to the contents of the letter which McKenzie wrote plaintiff at the time he enclosed his check. The check itself is in evidence.

McKenzie testified that he wrote plaintiff not to cash the check unless plaintiff was willing to accept the amount thereof in full settlement of the account; and it is admitted by plaintiff that it received the letter along with the check and cashed the check and applied the proceeds to the account.

But plaintiff’s contention is that it did not agree to accept the amount in full settlement of the account.

The testimony of Mr. C. J. Salm, vice-president of plaintiff, and who seems to have handled the transaction all through for plaintiff, was taken by commission. He was asked, interrogatory 16.

“Explain the nature of the check for $8,000.00 described in paragraph 2 of item 13, signed ‘W. A. McKenzie’.”

And he answered:

“When we received letter from W. A. McKenzie enclosing check for $8,000 wherein he claimed that he assumed this obligation, we had every reason to believe, from past unsatisfactory experience with W. A. McKenzie, that he was trying to work us for an obligation which clearly was set forth in resolution, obligating the town of Homer to pay us certain money; and we told him so in our letter, dated Sept. 29th, 1922, Pltf. 4, items 14-15, that we were the innocent sufferers and that although we would accept his check we still maintained that the town owed us the difference of $984.98, plus interest charge.” ■

With reference to the check sent by McKenzie to plaintiff, on which was written: “Pipe Account. Town of Homer. In full settlement,” plaintiff contends that the acceptance of the check as thus written is not conclusive proof that it wat accepted in full payment. And that is true. A formal receipt is not conclusive against the party who gives it but is only prima facie evidence of the facts asserted therein.

“The mere fact that a receipt expresses on its face that it is ‘in full’ of all demands or of certain demands does not make the instrument of such contractural nature as to preclude the admission of parol evidence to vary its effect.”

17 Cyc. 634.

Gray vs. Lonsdale, 10 La. Ann. 749.

Bass vs. Balph, 5 La. Ann. 235.

Tardif vs. Baudoin, 9 La. Ann. 127.

Porter vs. Brown & Chaler, 21 La. Ann. 532.

Wells vs. Sherrill Hardwood Lumber Co., 151 La. 1081, 92 South. 706.

The check on its face recites that it is a settlement in full, and its acceptance as written by the creditor is only prima facie evidence of the fact that it recites and is open to rebuttal.

But this case does not hinge upon the acceptance of the check written as a receipt in full. It is not claimed by the defendant that the debt was paid in full. But it is claimed by defendant that plaintiff agreed to accept and did accept the sum of $8,000.00 in full compromise and settlement of the debt. This we think plaintiff did.

McKenzie wrote plaintiff that the amount which he enclosed was tendered in full settlement of the account, and he specifically stated that if said amount was not accepted in full settlement the check was to be returned.

At the time this letter and the check were received, plaintiff was in possession of all the facts; it knew the exact amount of the debt; it knew that the town had no money with which to pay; it knew that it would have to wait. No definite time had been .set for payment by the town. As far as the town had gone, was to agree to pay interest at six per cent. after one year. There was no error, no fraud, no violence, no threats.

It is true that the creditor of the debt did not in express language accept the proposal made, but by accepting the amount tendered in full of the debt there was an implied and unmistakable assent to the proposition.

Civil Code, article 1811, provides that — •

“The proposition as well as the assent to a contract may be express or implied:
“Express, when evinced by words,. either written or spoken;
“Implied, when it is manifested by actions, even by silence or inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”

Action on a proposal implies its acceptance.

McIlvaine & Speigel vs. Legare and Godchaux, 36 La. Ann. 359. The acceptance was conformable to the offer.

Civil Code, article 1805.

There was something proposed by one of the parties and accepted by the other.

Civil Code, article 1798.

We have not overlooked the testimony of Mr. Salm to the effect that he wrote McKenzie—

“We still maintained that the town owed us the difference of $984.98, plus interest charge.”

That by no means proves that his company did not at the time give assent to the settlement, and it can readily be understood why the creditor was willing to do so. By accepting McKenzie’s proposal of settlement it came into immediate possession of $8,000,00 cash, when,, according to the allegations of its petition, the whole debt was only $8,516.60 plus a few dollars interest.

It is true that the' account was liquidated and a suit would necessarily have resulted in judgment against the town. But there was . to. be considered the element of expense in bringing the suit and the delays always incident to the collection of judgments against municipalities all of which no doubt caused the plaintiff to accept the proposal of McKenzie. We have no doubt that plaintiff accepted the settlement reluctantly, as indicated by the statement in Mr. Salm’s letter to McKenzie as follows:

“We are the innocent sufferers.”

That means nothing if it does not mean that plaintiff realized that it was sustaining a small loss on the. account.

“An obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that if he act in his own name, he be not subrogated to the rights of the creditor.”

Civil Code, article 2134.

The amount due plaintiff was a debt of the municipality. McKenzie was not concerned in it. In paying the debt he acted in his own name but he was not subrogated to the rights of the creditor.

There is no testimony in the record tending to show collusion between him and the town in order to defraud plaintiff of any of its rights.

The judgment appealed from is correct and is affirmed • with costs.

Reynolds, Judge, recused.


author: WEBB, J. WEBB, J.

text:
    No. 2711
    Second Circuit
    HATFIELD v. GOESCH
    (December 1, 1927. Opinion and Decree.)
    (June 28, 1927. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 351.
    Where the overwhelming preponderance of the evidence is that an alleged fo.rged document was not forged, judgment accordingly.
    (ON REHEARING)
    2. Louisiana Digest — Appeal — Par. 729, 731.
    Where an instrument alleged to be forged was not obtainable at the' time of the trial due to no fault of the parties to the suit, but is obtainable after judgment passed on appeal, it being necessary to have the alleged forged document introduced at the trial in order to properly reach a decision, the case will be remanded for a new trial.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. R. M. Taliaferro, Judge.
    Action by Mrs. Caroline Luigi Hatfield against W. D. Goesch, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    A. D. Flowers and Pludson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellant.
    Henagan & Gaharan, of Monroe, attorneys for defendants, appellees.
   WEBB, J.

The plaintiff, Mrs. Caroline Luigi Hatfield, brought this action to have an instrument, which purports to be a sale by her to W. D. Goesch of an undivided one-half of the mineral rights on eighty acres of land situated in the parish of LaSalle, annulled and declared to be forged, and to have the inscription of the instrument as made on the conveyance records of LaSalle parish cancelled and erased, and she appeals from a judgment rejecting her demands.

On May 12th, 1924, there was filed for record in the recorder’s office of the parish of LaSalle an instrument under private act of date May 6th, 1924, which appears on its face to be a sale by Caroline Luigi to W. D. Goesch of one-half of the mineral right in and under the SE% of NE% and NE% of SE%, Sec. 12, Twp. 10, Rng. 1 East, of LaSalle parish; the instrument appears to have been signed by plaintiff by mark, her signature being: “Caroline her (X) mark Luigi”, and to have been witnessed by W. M. Cotton and H. G. Adams, and to have been proven before W. H. Mills, Notary Public, by W. M. Cotton on May 8th, 1924.

W. D. Goesch sold to E. B. Randle one-fourth of the minerals by an instrument under Authentic Act of date May 12th, 1924, filed for record on same date, and E. B. Randle sold to F. E. Jones and W. Brewton one-sixth of the minerals by deed under Authentic Act qf date February 5th, 1925, recorded on same date.

Plaintiff filed this suit against W. D. Goesch on April 15th, 1925, in which she alleges that W. D. Goesch had on May 6th, 1924, forged her signature to the instrument without her knowledge or consent, and that' she had not received any consideration, etc., and service was made on the defendant through a curator ad hoc, and by supplemental petition filed on May 25th, 1925, the transferees, E. B. Randle, F. E. Jones and W. Brewton were made parties.

W. D. Goesch appeared by co'unsel and answered denying the allegations of the plaintiffs’ petition and alleging the validity of the sale, and the transferees adopted the answer of Goesch, and alleged that they were purchasers in good faith and on the face of the record.

The evidence establishes that Caroline Luigi and Caroline Luigi Hatfield are the same person, and it appears that the instrument which is attacked had been filed and that the recorder had retained possession of the instrument, but it could not be produced on the trial, and it being shown that it could not be found after a diligent search, a copy of the record appears to have been offered without objection.

The recorder testified that he had seen the instrument and that he recognized the signature of .the notary before whom it purported to have been proven, and W. M. Cotton, one of the subscribing witnesses, stated that he had seen the instrument after it had been recorded, and that it was the instrument which he had signed as a witness, and he also testified that Mrs. Luigi signed the instrument in his presence and in the presence of the other subscribing witness, H. G. Adams, and the testimony of H. G. Adams was to the same effect.

W. J. Holman testified that he was present and saw Mrs. Luigi sign, and while neither of the witnesses, Cotton, Adams nor Holman, remembered whether the instrument had been read before it was signed, they all agreed that it had been signed at the commissary of the Standard Lumber Company at Olla, and Cotton and Adams stated that the notary, W. H. Mills, had held the pen for Mrs. Luigi to make her mark, and Cotton stated that the notary had written “Caroline Luigi'” as shown by the instrument. Neither of the witnesses were able to state the date when the instrument was signed, and neither of them knew Mrs. Luigi before the time she signed the instrument, but each identified her as the person who signed the instrument.

Mrs. Luigi testified that she did not sign the instrument on May 6th or any other date, and she states that she was at home all day on the 6th qf May, which date she recalled by reference to some transaction she had on that date, and she also said that she had never been in the commissary of the Standard Lumber Company (which was several miles from her residence), and as to her statement that she did not leave her home on the 6th of May, she is corroborated by three persons who were at her home during the greater part of the day on May 6th, 1924.

W. H. Mills, the notary public before whom the subscribing witness, Cotton, proved the signatures, was called, but his testimony was very vague and uncertain, and while he expressed an opinion that Mrs. Luigi was not present when the signatures were iproven before him, we think a fair consideration of his testimony leads to the conclusion that he did not have any independent recollection whatever of the incident.

There was testimony by persons who had attended to business for Mrs. Luigi to the effect that they regarded her as trustworthy and reliable, and W. D. Goesch was not present at the trial; neither does it appear that any effort was made to take his depositions.

While the instrument bearing date, May 6th, 1924, as between the parties, is presumed to have been signed on that date, the date is not sacramental, and considering the date on which the signatures were proven before the notary public, with the testimony of the subscribing witnesses, Cotton and Adams and W. J. Holman, we conclude that the instrument, if signed by Mrs. Luigi, was signed on the 8th of May, and if such was the case, the testimony of Mrs. Luigi as to her having remained at home on the 6th of May, and as corroborated in that respect by the three witnesses who visited her on that date, is not in conflict with the testimony of the subscribing witnesses and Holman, who testified that Mrs. Luigi signed the instrument qn the 8th of May at the commissary of the Standard Lumber Company at Olla, and from this point of view the situation presented is that of the testimony of Mrs. Luigi, the plaintiff, standing opposed to the testimony of the subscribing witnesses and Holman, who are not shown to have had any interest in the matter.

While the testimony of Cotton and Adams is somewhat in conflict with the instrument in that they stated that Goesch had also signed, and may be said to have affected their credibility, yet the trial was had more than a year after the instrument was purported to have been signed, and the trial court before whom the witnesses appeared gave credence to their testimony, which we think he should have done, as it appears that their statements in conflict with the instrument were apparently merely the expression of an opinion on a matter which was not material to the issue, and as their testimony, as to the issue whether or not Mrs. Luigi signed, was supported by the testimony of Holman, we are of the opinion that the overwhelming preponderance of the evidence is against plaintiff and that this preponderance is not overcome by the failure of W. D. Goesch to appear at the trial, or to have presented his depositions.

The judgment appealed from is therefore affirmed.

ON REHEARING

WEBB, J.

This action involves a question as to the validity of a certain transfer of immovable property, the plaintiff contending that the instrument evidencing the transfer was a forgery, and on the trial the instrument could not be found, and the evidence as to the question of forgery was conflicting, involving questions as to the weight of the testimony and of the effect of the failure of the vendee to appear or give his testimony.

Since the original opinion was rendered by this court and in which a rehearing was granted, the instrument attacked has been found and can be produced on trial; and in view of the difficulty of attacking or supporting an instrument when the question of forgery is at issue, when the instrument cannot be produced, and of tbe conflict in tbe evidence introduced under sucb circumstances, we are of tbe opinion that it would best serve tbe ends of justice to remand tbe cause for a new trial, it appearing that neither of tbe parties was responsible for the failure to produce tbe instrument.

It is therefore ordered^ adjudged and decreed that tbe original opinion rendered by this court and the judgment of tbe District Court be set aside, and that tbe cause be remanded to the District Court for a new trial.


text:
    No. 2905
    Second Circuit
    SOWERS COMPANY v. FIRST NATIONAL BANK OF WINNFIELD
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)'

    1. Louisiana Digest — Banks and Banking —Par. 45, 47, 51, 54.
    Tbe crediting of a check drawn on itself to a depositor’s account by a bank • is a payment of the check, and in the absence of fraud on the part of the depositor or mistake on the part of the bank, the bank cannot thereafter repudiate the transaction and charge the .amount back to the depositor on the ground that it was an overdraft.
    2. Louisiana Digest — Banks and Banking —Par. 51, 56.
    Evidence held to show that the bank accepted and paid the check unconditionally. The crediting of the amount thereof in the depositor’s pass book was equivalent to a payment in cash.
    Appealed from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by The Sowers Company against First National Bank of ■ Winnfield. '
    Theive was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eugene Beck, of Winnfield, attorney for plaintiff, appellee.
    John J. Peters, of Winnfield, attorney for defendant, appellant.
   ODOM, J.

This is an action by the plaintiff to recover of the defendant bank $400.00 deposited by plaintiff in the said bank, for which credit was given the depositor, which amount was subsequently charged back to the depositor for the reason that the check -deposited was an overdraft.

There was judgment for plaintiff and defendant appealed.

OPINION

On April 12, 1926, the Winnfield Construction Company, by Hall, its general manager, gave the plaintiff, The Sowers Company, a check on the defendant bank for the sum of $400.00. The plaintiff company was a customer of the bank and had a deposit account there. On that day Mr. Sowers of the plaintiff company endorsed said check and deposited it, along with twenty-five other checks,' in the defendant bank, the total amount of the deposit being $887.70.

Mr. Sowers made the deposit slip, listing all the items, including the check of the Winnfield Construction Company for $400.00. He had with him his bank passbook, in which he was given credit for the full amount of the deposit, including the $400.00 check. . This was .on April 12th. On the following day The Sowers Company was credited on the bank’s books with the amount of the deposit. However, on the 13th the book-keeper for the bank, under instructions of the president, charged the $400.00 check back to" plaintiff, for the reason that the check was an overdraft.

Plaintiff brings this suit to recover the said amount, alleging, as a cause of action, that defendant had accepted and paid said check unconditonally, and that by acceptance of the, check for $400.00 drawn on itself said acceptance was a payment thereof by the bank, and that the defendant bank was not warranted in law in charging the amount back to plaintiff upon discovery that the. check was an overdraft.

The law is that the crediting of a check on itself to a depositor’s account by a bank is a payment of the check, and in the absence of fraud on the part of the depositor or mistake on the part of the bank the bank cannot thereafter repudiate the transaction and charge the amount back to the depositor on the ground that it was an overdraft.

Schutte vs. Citizens Bank of Haynesville, 3 La. App. 547.

3 Ruling Case Law 536, section 153.

Commercial National Bank of Woodville vs. First National Bank of Morgan City, 147 La. 925; 86 South. 342.

Cohen vs. First National Bank of Nogales, 198 Pac. 122. (Reported in 15 A. L. R. 701.)

See, also, note 15 A. L. R. 709.

Counsel for defendant does not dispute that the law is 'as above stated. But the defense to the action is that the bank accepted the check conditionally to the full knowledge of the depositor and that it having accepted the check conditionally and it having proved worthless the bank was within its legal rights in charging the amount back to the depositor.

The question, therefore, to be determined is whether the deposit was in fact conditionally accepted, there being no suggestion that the depositor was in bad faith or that it ■ was accepted by mistake.

Mr. Bryan, president of the defendant bank, testified that the deposit was taken by him; although his answer to one question indicates that his memory on that point is not very clear, for he was asked:

“I believe you stated that you took the deposit?”
“Yes, sir. If I recall right I took the deposit.”

Mr. Bryan testified that Mr. Sowers of the plaintiff company came into the bank after banking hours on April 12th and presented this with other checks for deposit; that he told Mr. Sowers that Hall, general manager of the Winnfield Construction Company, by whom the check was drawn and signed for said company, had no authority to sign checks for the' compahy, and, further, that the company had no funds to protect the check; and he further said:

“we talked on about it and he asked me if I would see Mr. McDonald and ask him about the check. I took the check and told him I would see of Mr. McDonald would stand behind it, and I took the check and early next morning I got hold of Mr. McDonald and he told me" he could not pay the check, that he had already lost eighteen thousand dollars and he was not going to lose any more * * * I told Mr. Sowers I would take it and see Mr. McDonald. When I saw Mr. McDonald, he told me that he would not O. K. the check, and I immediately sent Mr. Earl Hughes to Mr. Sowers’ store with the check, and when he got down there Mr. Sowers says ‘you see Mr. Bryan, I have talked to him about it,’ and when Earl came back I told him to charge it to Mr. Sowers’ account. * * * ”

Earl Hughes is a bookkeeper for the bank. He was called to testify by defendant and was asked this, among other questions, by counsel for defendant:

“Do you recall any conversation or promise Mr. Sowers made Mr. Bryan on either of these days?” and he answered:

“I do not.”

As against Mr. Bryan’s testimony that the deposit was received by him after banking hours, and that it was conditionally received, we have that of Mr. Sowers who swore positively that the' deposit was not made after banking hours but, on the contrary, was made before two o’clock in the afternoon, and that it was accepted and credit therefor given in his pass-book not by Mr. Bryan, the president, hut by Mr. Scott, the cashier of the bank.

We also have the testimony of Mr. Hall, who drew the check, that he was in the bank when Sowers made the deposit, that it was made before two o’clock, and that Scott, the cashier, took the deposit.

Both stating that if Mr. Bryan was present at the time they did not see him. •

Scott, the cashier, was called by the defendant and his testimony as to whether he received the deposit is somewhat equivocal. He was asked if he recalled the deposit, and he said he did not. Examining Sowers’ pass-book with reference to the entry of April 12th (the deposit in question) he was asked who made the entry and he said:

“Mr. Bryan and I write a right smart alike, especially figures; I don’t know whose writing it is. It looks like I might have made it in the book here. I might know, though, we write so much alike, especially figures.”

Further questioned, he said he did not recall having received the check subject to payment, and was asked :

“There was not anything said about funds for paying it?” and he answered:
“There was not.”

And, again:

“Q. You would not say that you did or didn’t take this deposit?”
“A. No, sir. Mr. Bryan could have handed me the slip, and then I would have put it on the book when he received the deposit.”

The court then asked Mr. Scott:

“Could you say that is your writing?” and he answered:
“I think it is; I could not swear to it, though.”
“Q. Do you know whether or not you took this four hundred • dollar check on the Winnfield Construction Company signed by Mr. Hall?”
“A. No, sir; I didn’t take that check.
“Q. You don’t know anything about it?
“A. I didn’t know anything about it until Earl carried it hack.”

In view of the positive testimony of Sowers and Hall that the deposit was made before two o’clock, during hanking hours, and that it was taken and accepted and credited in the pass-book by Scott, the cashier, and the testimony of Scott, the cashier, as above quoted, we conclude and hold that the deposit was, as a.matter of fact, taken and accepted by Scott and not by Mr. • Bryan, and that Bryan’s memory is at fault.

To corroborate the testimony of Bryan that the deposit was made after banking hours, which point is relevant only on the question of whether Bryan instead of Scott took the deposit, defendant proved by Earl Hughes, the bookkeeper, that it was the custom of the clerical force in the bank to enter on the books all deposits made up to the close of banking hours each day on the date they were made, and that when deposits are made after banking' hours the credit is made on the following day. The books were introduced showing that this deposit was credited to The Sowers Company on April 13th, while admittedly the deposit was made on the 12th.

This testimony is of little, if any, value, in view of proof that the posting dates were not always accurate.

Mr. Bryan, president of the bank, is the only witness who testified that the check in question was accepted conditionally, and his testimony on that point is wholly uncorroborated.

In this connection we cannot leave out of consideration another point in connection with Mr. Bryan’s testimony. He says the check was presented to him by Sowers and that he then and there informed Sowers that he could not accept it unless Mr. McDonald would stand behind it, and yet the fact remains that Sowers was credited with the amount both in his passbook and on the books of the bank. It does not seem reasonable to us that if Bryan had agreed to accept the check only in the event that McDonald would approve it he would have either credited or permitted to be credited the amount to The Sowers Company’s account. Bryan does not say that the check was accepted and paid through mistake. He says it was not really accepted at all; that he told Sowers that he would have to see Mr. McDonald. Yet the fact remains that the check was accepted by some one and the depositor given credit therefor which, of course, is equivalent to payment.

As to whether the check was accepted and paid conditionally or not, Mr. Sowers says that the deposit was received and accepted by Mr. Scott, the cashier, and that there was not a word said when the deposit was made. No one in the bank heard anything said about it. Scott, the cashier, says nothing was said. Mr. Hall says he was in the bank when the deposit was made and that he heard no discussion of the matter. Sowers’ testimony is, therefore, corroborated not only by witnesses but also by the fact that he received the credit in his pass-book and on the books of the bank. As stated, the testimony of Mr. Bryan lacks support.

The district judge, in a carefully prepared written opinion, for which we are indebted to him, states that he is personally acquainted with both Mr. Bryan and Mr. Sowers and he vouches for the integrity and veracity of each. We accept, of course, his opinion on that point, and concur in his findings that the testimony warrants the conclusion and holding that Mr. Bryan is mistaken and that the payment of the check was made by the bank unconditionally through Scott, the cashier, and that the bank is bound.

The check in question was drawn on the defendant bank.

“The law is firmly settled that when a check drawn on a partcular bank is presented to that bank for general deposit and the bank gives the depositor credit therefor, the relation between the bank and the depositor is that .of debtor and creditor; since the giving of credit under such circumstances is practically and legally the same as if the bank had paid the money to the depositor and had received it again on deposit. The transaction is thus complete and cannot be rescinded except for fraud or in case of mutual mistake.”

Cohen vs. First National Bank of Nogales, Arizona Supreme Court, 1921; 198 Pac. 122.

In the case of First National Bank vs. Burkhart, 100 U. S. 689; 25 Law Ed. 768, the court said:

“In Morse’s well considered work on banking, page 321, it is said: ‘but if at the time the holder hands in the check he demands to have it placed to his credit and is informed that it shall be done, or if he holds any other species of conversation which practically amounts to demanding and receiving a promise of a transfer of a credit as equivalent to an actual payment the effect will be the same as if he had received his money in cash and the bank’s indebtedness to him for the amount will be fixed and irrevocable.’ We regard this as a sound and accurate exposition of the law upon the subject and it rests upon a Solid basis of reason.”

For the reasons assigned, the judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 2670
    Second Circuit
    MOSELEY v. RED RIVER OIL MILL, INC.
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 7, 11.
    In view of Article 1805 of the Civil Code the acceptance, in order to be binding, must be in all things conformable to the- offer.
    2. Louisiana Digest — Obligations — Par. 11; Corporations — Par. 46.
    A subscription to capital stock which did not conform to the offer which had an additional guarantee specified is not binding upon the parties and no damages can arise from the non-delivery of the stock on failure to consider the offer accepted.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Vincent Moseley against Red River Oil Mill,' Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This action in damages arises out of an alleged subscription by plaintiff to the capital stock of the Red River Oil Mill, Inc., defendant, a corporation proposed to be organized under the laws of this state for the purpose of leasing and operating an oil mill situated in Rapides parish and belonging to the 'Red River Oil Company, Limited, a corporation organized under the laws of this state with its domicil in said parish, in which latter company plaintiff was a stockholder; and plaintiff appeals from a judgment sustaining an exception of no cause of action, and dismissing his suit.

OPINION

Plaintiff in substance alleges that, due to difficulties in financing the further operations of the mill hy the Red River Oil Company, Limited, some of the stockholders determined to organize a new corporation tq be known as the Red River Oil Mill, Inc., and that the latter corporation was chartered on August 17, 1924, and that an option was extended to him as one of the stockholders of the Red River Oil Company, Limited, to subscribe to the stock of the Red River Oil Mill, Inc., in a letter of date August 8, 1924, which reads as follows:

“Alexandria, La., August 8, 1924. “Mr. H. V. Moseley,
“Care Williams & Moseley,
“James Building,
“Chattanooga, Tenn.
“Dear Mr. Moseley:
“Referring to our correspondence beginning with my letter of June 30th, will advise that something was absolutely riecessary to be done promptly in order to preserve intact the business of the Red River Oil Company, Ltd. This had to be done before your return, which the writer understood you to say would be on the 1st of September. You were not willing to put up any money, and Mr. Weems explained that he was unable to do so, and the others were not in a financial position to put u(p money in proportion to their holdings of stock in the Red River Oil Company, Ltd. There was but one plan that could be devised that would enable the company to raise money to guarantee the bank against loss, and that was for the stockholders who were willing to do so to put up a sufficient amount of money to do this. They could, of course, not be expected to put up money for the benefit of those who were unwilling, and hence the only plan we could think of was to form an operating company and lease the mill. There was no way of communicating this information to you because the time was too short. The cotton crop will begin to be picked within two weeks from now and the mill must preserve its customers or else they will go to other mills. An operating company was therefore formed and up to date there are seven subscriptions. Mr. W. C. Scott subscribed and paid for $1000 of stock, and six others, my father, Mr. Bat Weil, Mr. J. L. Bryan, Mr. J. E. Byram, Mrs. P. _ N. Bryan and myself, subscribed for $5,000 of stock each. All of us signed a guarantee to the Rapides Bank & Trust Company as additional margin for an amount equal to. 50% of our stock subscription, that is to say, six of us have signed a guarantee of $2500.00 each and one for $500.00, or rather my father has not yet signed but will sign on his return home, all of the others having signed. You own one hundred and thirty-six shares of stock in the Red River Oil Company, Ltd., and you are invited to subscribe for such an amount of the stock of the operating company as you desire to subscribe for up to 13.6% of the capital stock. of the operating company, and on the condition that you sign the guarantee fo.r 50% more than the amount of money that you subscribe and pay for. This option to you is limited to the 15th of September, should you return by the 1st of September, and, if not, to within two weeks after your return. This same option will be given to all of the other stockholders of the company.
“The lease price of the mill is $12,500 per annum, and the lease is from yesterday until the 1st of July, 1925. The payments are made in monthly installments of $1500 .per month, beginning on the 1st of September, the last payment of $500 to be made on the 1st of May. This lease price is sufficient to take care of the fixed charges of the mill,- which are as follows:
“Pire and tornado insurance________$ 2,613.11
“Steam boiler insurance________________ 95.34
“Engine insurance ____________________________ 54.58
“Taxes __________________________ 3,909.82
“Interest ____________________ 5,600.00
“Total __________________________________________$12,272.85
“We ask that you give this consideration and advise your decision promptly on your return from your trip.
“Very truly yours,
'(Signed) “J. W. BOLTON,
“President.”

That at the time said letter was written and mailed, plaintiff was in Europe and returned early in September, reaching Chattanoqga early in the afternoon of thq 5th, and went to his office on the 6th of September, where he found the letter awaiting him, which he read, and, on September 8th, he wired defendant’s representative for information, the telegram being as follows:

“September 8, 1924.
“Mr. J. W. Bolton,
“President, Rapides Bank & Trust Company,
“Alexandria, La.
“Returned Friday. Reference letter August eighth; please fully inform me in detail regarding business prospects holding company stating capital stock authorized and whether Alexandria competitor will operate this season. I shall gladly pay for coipy of lease and holding company charter and by-laws which I should appreciate your forwarding.
(Signed) “VINCENT MOSELEY.”

And, on .September 9th, he received by wire a reply as follows:

“Vincent Moseley,
“Care Williams & Moseley,
“James Bldg., Chattanooga, T'enn.
“Replying your telegram. Regarding business prospects I hesitate to advise because of the disastrous termination of last season’s business after everything looked so well up until Christmas, and one cannot foretell the results of this business because we cannot tell what price we will get for manufactured product. Authorized capital of holding company is fifty thousand dollars. Lease and charter in usual form. No by-laws adopted.
(Signed) “J. W. BOLTON.”

On September 12th he again wired defendant’s representative as follows:

“Mr. J. W. Bolton,
“President, Raipides Bank & Trust Company,
■ “Alexandria, La.
“Please have copy of lease and holding company charter forwarded.
(Signed) “VINCENT MOSELEY.”

And, not receiving a reply, he wrote, defendant’s representative, subscribing . for three thousand dollars of the capital stock of defendant company, as shown by letter reading as follows:

“September 17, 1924.
“Mr. J. W. Bolton,
“President, Rapides Bank & Trust Company,
“Alexandria, La.
“Dear Mr. Bolton:
“I beg to request that you enter my subscription tq the extent qf $3000 for stock in the holding company which negotiated a lease from the Red River Oil Mill Company, Limited. I believe the amount of the subscription entered will! fulfill my moral obligation to see the venture through, and I ain frank tq say that I do not view the speculation as favorable in the least from a business viewpoint, although ©resent conditions have an optimistic tint. I regret that I had some difficulty in securing information sought. I should appreciate your forwarding a copy of the lease and charter, previously referred to, at my expense at your earliest convenience.
“It appears to me that the holding company lease simply offers the opportunity of having the situation involving the Red River Oil Mill Company, Limited, held as. . it now exists with the constant threat of a foreclosure in the event of a bad season..
I am impressed that 'we should at once make every intelligent effort to effect the consolidation of competing mills in our territory, particularly covering the areas from which we secure seed. The Memphis mills organized a single corporation in which they all took stock on the basis of the appraisal of the properties entering into the merger. Small independent mills in Texas have recently been accumulated by a few individuals. I believe that you, Mr. Jack Bryan and Mr. Byram can best secure action to; that end in view. I only wish that I might be of assistance. If six months of effort to the end mentioned fails to produce results, then I should urge employing our efforts to sell the mill, which, in the event of a prosperous season, might be accomplished. It is, of course, advantageous to sell as a going concern, and that is to me one opportunity the present holding company offers. I have not been informed how we shall be better off a year hence than we are nqw insofar as our stock ownership in the .Red River Oil Mill Company, Limited, is involved. The production of cotton in central Louisiana is distinctly not now a good business risk. Again, the farmer is organizing — to me this means accentuating the ©resent prices due to shortage in the raw product we use by higher prices following organization. by the producers of cotton seed. We are still in the midst of ‘cut-throat’ competition, at present lulled by recent agreements, but nevertheless a continuing potential threat. .1 should be very glad to learn what you may suggest and why.
“I have just had the pleasure of interviewing a, well-known local oil mill operator who informed me that he never purchased seed when the present market for the products did not assure a profit. On the basis of this policy, he took a loss last year of about 10%, whereas if he had continued to operate, he frankly admitted he would have lost his entire properties. May I not be ©ardoned for again venturing to suggest a similar conservative pol-
icy in governing the operations of the holding-company formed?
“Yours very truly,
(Signed) “VINCENT MOSELEY.”

That the letter was mailed a,t Chattanooga on the day it was written and received by defendant’s representative on September 20th, who, on the latter date, replied, the letter being, in part, as follows:

“Mr. H. V. Moseley,
“Care Williams & Moseley,
“James Building,
“Chattanooga, Tenn.
“Dear Mr. Moseley:
“Your registered letter of September 17th reached me today. Mr. Byram happened to be in the office at the time that it was delivered to me by one of our clerks, and I immediately opened it and showed it to him. My letter of August 8th stated that your option to subscribe for this stock was limited to two weeks after your return, and your telegram of September 8th stated that you had returned on Friday, which was September 5th. Your option, therefore, expired yesterday.
“Your letter is not accompanied with a check, nor do you state in your letter that you are willing to comply with the further conditions of the subscription that all the others have complied with, and that is that you would guarantee the bank for 50% additional in case of loss. I have no desire to be technical, but the question was very thoroughly discussed at the time of the organization of the holding company, and the letter that I wrote you on August 8th outlined thoroughly the conditions upon which your subscription was to be made and the time limit for the same, so I have no authority to accept your subscription. * * *
“Yours very truly,
(Signed) “J. W. BOLTON.”

Plaintiff further alleged that the correspondence constituted a binding contract of subscription and that he was and had been ever since willing, ready and able to perform by paying the amount of his subscription and furnishing the guarantee, and had offered to comply with all of his obligations, and had demanded that the stock be issued to him, but that defendant had failed to comply with his demands.

He also alleged that the defendant ceased operations, and while it had not been formally dissolved it had returned tq the subscribers other than plaintiff the amounts paid in by them under their subscriptions and had distributed the earnings of the company to the subscribers other than plaintiff and that the proportionate amount which would* have been due petitioner would have been fifteen hundred and forty and 70-100 dollars.

That the stock of the company was held by the persons mentioned and could not be obtained on the market, and plaintiff fixes the amount of the damages claimed by him at the amount which he alleges should have been distributed to him from the earnings of the company as above set forth.

It is urged in support of the exception that the petition fails to show the acceptance in that plaintiff did not remit the amount of his subscription nor send a guarantee to the bank for fifty per cent of the subscription, nor in any manner bind himself for such guarantee, and, further, that the exception was not made within the time limited.

Considering the question as to the acceptance, the parties agree that the proposal and letter are to be considered as a whole, and plaintiff contends that thus considered it is apparent that the parties did not contemplate that plaintiff should remit with his acceptance the amount of his subscription, or that he would send a guarantee to the bank of fifty per cent of the subscription, in that the proposal shows that some of the subscribers had not ¡paid the amount of their subscriptions nor signed the guarantee to the bank, and, further, that plaintiff, having agreed to subscribe for stock under the proposal, bound himself for the guarantee; while defendant contends that the proposal shows that the immediate object of the parties was tq finance the operatiqns of the company, and that cash was required for the subscription and a guarantee to the bank or at least a clear expression of a promise of guarantee.'

While it is apparent from the proposal that the organizers of the company contemplated that the amount of the subscription should be paid in cash and that a guarantee would be given to the bank before the stock would be issued, yet, considering the ¡proposal as coming from the defendant, and ¡in view of the fact that some of the subscribers had not paid their subscriptions or signed the guarantee to the bank, and that the plaintiff was to be placed in the same situation as the original incorporators, which is indicated by the proposal, it may be that it was nqt contemplated that the acceptance of the proposal required the acceptor should remit the amount of his subscription or accompany it with a guarantee to the bank, but it appears to be conceded that the ¡parties did contemplate that on the acceptance of the proposal there would be a binding contract under which the acceptor would be obligated to pay the amount of his subscription and to be further bound for the obligations of the company to an amount equal to fifty per cent of the subscription.

Considering the proposal, which reads as follows:

• “You own one hundred and thirty-six shares of stock in the Red River Oil Company, Ltd., and you are invited to subscribe for such an amount of the stock of the operating company as you desire to subscribe for up to 13.6% of the capital stock of the operating company, and on the condition that you sign the guarantee for 50% more than the amount that you subscribe and pay for”—

with plaintiff’s reply, in which he wrote:

“I beg to request that you enter my subscription to the extent of $3000 for stock in the holding company which negotiated a lease from the Red River Oil Company, Ltd. I believe the amount of the subscription entered will fulfill my moral obligation to see the venture through and I am frank to say that I do not view the speculation as favorable in the least from a business viewpoint although present conditions have an optimistic tint. * *

And Article 1805 of the Civil Code which requires the acceptance to be in all things conformable to the offer, and the law under which the subscriber to the capital stock of a corporation is not ordinarily bound for anything further than the payment of his subscription, we do not think it can be said that plaintiff accepted the offer made to him.

However, it is contended that the provision or condition under which plaintiff was . invited to subscribe to the capital stock should be considered as equivalent to a stipulation in the charter, and that by authorizing the subscription he also became obligated to sign the guarantee to the bank or to be responsible for an additional amount to that subscribed, but even considered from that point of view, which is the most favorable light in which it could be presented for the plaintiff, we do not think his acceptance could be given any legal effect.

The purpose of demanding an additional obligation of the subscriber beyond the amount of the subscription is clearly indicated in the proposal as being necessary to finance the operations of the company, and we are of the opinion that the offer called for an unqualified assent on the part of the plaintiff to so bind himself, and we are of the opinion that instead of so doing the plaintiff limited his liability to the amount of the stock subscribed.

We therefore find that plaintiff’s petition fails to show an acceptance of the offer made to him, and it is unnecessary to consider whether or not the acceptance was made within the time limited.

The judgment is therefore affirmed.


author: 'ODOM, J.

text:
    No. 2265
    Second Circuit
    MERIWETHER SUPPLY CO. v. BAUGH
    (April 8, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Mechanic’s Privileges —Par. 45, 46; Builders and Buildings— Par. 5, 7.
    Under Act 139 of 1922, the owner who fails to have reduced to writing the contract with the builder and to have it recorded and who fails to exact bond of the contractor does not on that ground alone become liable for the value of materials used in the construction of the building.
    2. Louisiana Digest — Mechanic’s Privileges —Par. 21, 35; Builders and Buildings— Par. 19.
    In order for the furnisher of materials for the construction of a building to hold the owner, who fails to exact bond, liable for his claim, under Act 139 of 1922, he must record his claim and serve notice on the owner within the time and in the manner prescribed by the Act.
    3. Louisiana Digest — Builders and Buildings — Par. 19; Mechanic's Privileges— Par. 21, 35.
    The provision of Sec. 5, Act 139 of 1922, to the effect that in case the owner fails to exact bond, etc., he shall be liable “to the same extent as the surety would have been,” can be invoked against the owner by material men only in cases where he becomes bound to them, and he does not become bound to them unless and until they record the claims and serve notice on him as the act provides.
    4. Louisiana Digest — Pleading—Par. 62; Mechanic’s Privileges — Par. 37.
    “When the furnisher of materials sues the owner of the building to compel the owner to pay for the materials said to be contracted as provided by Act 139 of 1922, he must allege that he gave notice to the owner within the time prescribed by the statute or his suit will be dismissed on exception of no cause of action.”
    Appealed from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by Meriwether Supply Company against Mrs. Pauline Looney Baugh, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Cook &. Cook, E. L. Blewer, of Shreveport, attorneys for plaintiff, appellant.
    Crain, Jackson & Johnston, of Shreveport, attorneys for defendants, appellees.
   'ODOM, J.

Plaintiff appealed from the judgment of the City Court sustaining an exception’of no cause of action against Mrs. Baugh.

The petition alleges that, in the month of August, 1923, the A. & M. Construction Company entered into a contract with Mrs. Baugh for the erection of a building; that said Mrs. Baugh did not cause a written contract for said work to be recorded in the mortgage records of the parish, nor did she require the contractor to furnish bond as required by Act. No. 139 of 1922.

Plaintiff further alleges that it furnished materials and supplies to the contractor for the construction of the building, which were used therein, and that by the failure of Mrs. Baugh, the owner, to have her contract with the contractor reduced to writing and recorded, and by her failure to require the contractor to furnish bond with security, she is responsible to it personally for the payment of the price of the materials furnished the contractor and not paid for by it.

But plaintiff failed to allege that it mailed or otherwise sent to Mrs. Baugh, the owner, or to her architect or other representative, a sworn, itemized statement of its amount, or that it recorded a sworn statement of the amount thereof, or its contract, in the office of the recorder of mortgages of the parish in which the said work was done within thirty days after the registry of notice of the acceptance of the work.

Mrs. Baugh, in limine, tendered an exception of no cause of action, which was sustained.

The sole question presented for our consideration is, whether the owner, who has failed to have her contract for the construction of a building reduced to writing and recorded, and who has failed to exact of the contractor b.ond with security and to have the same recorded, is personally liable to a furnisher of materials in case the furnisher of such materials has failed to serve on such owner a sworn, itemized statement of the account and has failed to record a sworn statement of .the amount thereof in the office of the recorder of the parish in which the property is situated, under Act No. 139 of 1922.

Act No. 139 of 1922 relates to building-contracts and provides that bonds shall be given in connection therewith, for the recordation of the contract and bond, and “for the creation, recordation and recognition of liens and privileges and the protection of contractors * * * material men * * * who shall * * * furnish material, machinery or fixtures for any building or other structure upon land in this state.”

Section 5 of the act reads as follows:

“If the bond is found to be insufficient in amount or not to have a proper and solvent surety, or if the owner fails to require a bond, or if he fail to record the contract and bond during the time herein provided, he shall be liable to sub-contractors, journeymen, cartmen, truckmen, workmen, laborers, and mechanics and furnishers of material to the same extent as the surety would have been. And the privilege hereinbefore provided for if recorded as provided in Section 2 hereof, shall remain in full force and effect until all claims against the building or other work erected on the land on which it is situated shall have been paid, unless otherwise ordered by the court. In all cases where surety has been furnished, the surety shall be entitled to make only the same defenses that the contractor for whom he signed the bond is authorized to make except as to the owner who has made payments in anticipation.”

The contention of counsel for plaintiff is that the owner who fails to have his contract reduced to writing and recorded and who fails to exact of the contractor bond and surety, stands in the place and stead of, a surety on the contractor’s bond, and can make no defenses against the claims of laborers and material men which cannot be made by such surety. .

We think counsel are in error.

It is true that under the plain letter of the act if the owner fails to exact bond with surety, etc., to become liable to the

“same extent as surety would have been."

but that does not mean that in case the owner fails to do what the statute requires of him in the way of exacting bond, etc., a material man or laborer is absolved from doing what the statute specifically provides he shall do in order to hold the owner.

The court, in construing that part of Section 5 invoked by plaintiff, must construe it in connection with other provisions of the act.

Section 2 of the act provides that every person having a claim against the undertaker or contractor shall, within certain delays after the work is completed,

“mail or otherwise send a sworn itemized statement thereof to the owner or his architect or other representative, and record a sworn statement of the amount thereof, or his contract, if it has been reduced to writing, in the office of the recorder of mortgages for the parish in which the said work has been done.”

It is clear under this section of the act that if and when a furnisher of material used hy the contractor in the construction of a building flies his claim with the owner within the delays prescribed and records the same in the office of the recorder of mortgages, there is created and established in his favor a lien and privilege on the building and on the land and an obligation on the part of the owner to pay the same.

But unless and until the claimant complies with this section" of the act, by giving such notice to the owner, there exists no obligation on the part of the owner to protect him.

There is no eontractural relation between the owner of the building and the furnisher of materials. The owner is under no obligation to him except that which is created by the act. The act, insofar as it creates an obligation on the part of the owner in favor of the material man, an obligation which arises without the owner’s consent, is in derogation of common right and must be strictly construed in favor of the owner against whom the act creates an obligation.

Alfred Hiller Co., Ltd., vs. Hotel Grunewald Co., Ltd. 147 La. 129, 84 South. 520.

Cole vs. Schexnadire, 163 La., 111 South. 651.

The court cannot give effect to Section 5 of the act, which counsel invokes against the owner, and at the same time ignore Section 2 thereof which' protects him by requiring the material man whose claim has not been paid to give him notice of that fact.

The owner makes no contract with the undertaker. The owner would be powerless to protect himself against claims against the contractor unless he had notice of their existence.

Inasmuch as there is no eontractural relation between the owner and material men and laborers and therefore no contractural obligation on the owner’s part to protect them, the law points out a method by which they may hold the owner and his property, and that method is by giving him notice and recording their claims.

If the claimant fulfills the requirement of the statute the law creates an obligation on the part of the owner to pay the claim. Can it be said that such claimants may ignore the duty imposed upon them by the statute and still hold the owner merely and solely because he failed to reduce his contract to writing and have it recorded or failed to exact bond of the contractor?

We do not think so.

The law exacts a penalty of the owner for his failure to require a written contract or bond, but that penalty cannot be invoked until and unless those who claim its benefits bring themselves under the exact and specific requirements of the act, in view of the fact that the act which creates the obligation against the owner is in derogation of common right, the obligation being created without his consent.

The case of Louisiana Glass & Mirror Works vs. Irwin, 126 La. 555, 52 South. 765, is exactly in point.

In that case there was no written contract and no bond, but the material, the price of which was sued for, was used in the construction of the building. There was no attested accounts served on the owner within the time prescribed’ by law and no sworn account was recorded in the mortgage office.

The lower judge held that—

“the plaintiff had no lien or privilege for want of the registry of its claim as required by law, and had no recourse against the owner personally, because of plaintiff’s failure to file a sworn statement of its claim with the owner, and to record a similar sworn statement in the mortgage office within 45 days after the completion of the building, as required by paragraph 4, section 1, of Act 134 of 1906.”

The case was carried to the Court of Appeal, which court amended the judgment condemning the owner in solido with the contractor for the full amount sued for.

The case was carried to the Supreme Court on a writ. That court set aside the decree of the Court of Appeal and ordered

“that the judgment of the First City Court be affirmed.”
That case fits the one at bar like a “wet blanket.”

The court, in that case, had under consideration Act 134 of 1906, which related to building contracts in cities of over fifty thousand inhabitants; but the provisions of the statute relating to liens and privileges and the rights and obligations of all parties are almost if not quite identical with the provisions of Act 139 of 1922. It, like the Act of 1922, provided that

“Every person having a claim against the undertaker * * * shall * * * file a sworn statement thereof with the owner and record a sworn statement thereof in the office of the recorder of mortgages for the parish in which said work has been done.”

It also specifically provided that

“If the owner fails to exact said bond or if he fails to have same recorded in the office of the recorder of mortgages in the manner and within the time hereinabove provided, the oioner shall he deemed in default, and shall he liable to the same extent as the surety would have been”

And it further provides that

“The surety herein shall be limited to such defense only as the principal of the bond could make.”

And it specified that all contracts for any amount exceeding $1000.00

“shall be reduced to writing * * * and shall he recorded in the office of the recorder of mortgages of the parish where the work is executed.-”

■ With slight variation in language, these are identical provisions contained in the Act of 1922.

And yet the court said in the case of Louisiana Glass & Mirror Co. vs. Irwin, 126 La. 555, 52 South. 765, cited supra, that

“the furnisher has complied with neither the requirements of the Code, nor of the statute. The non-compliance of the owner does not dispense the furnisher of material under Act 134 of 1906 from fulfilling on his part the requirements of the statute.

The court also said:

“There is no privity of contract between the owner and persons who furnish materials to the contractor, and the latter in order to acquire a right of actiofi against the owner must comply strictly with the requirements of the statute.”

The ruling in that case was reaffirmed in the case of Musey vs. Prater, 147 La. 71, 84 South. 498, where the court, on original hearing, said:

“The bond in this case was not in favor of the laborers and material man; hence they 'had no recourse upon it. In view of this failure of the owner of the building to exact of the contractor a bond of the kind required by said Act 282, the learned counsel of the furnishers of labor and material argue that he is not entitled to the protection of said Act 262. The answer is very simple. The furnishers of labor and material have no claim whatever upon or against the owner or his property until they have complied with the requirements of said Act 262 by whose operation solely their right of action against him or his property comes into existence; and until they have thus acquired a claim against him or his property he stands in no need of the protection of said Act. His failure to exact a bond does not make him liable irrespective of whether a sworn statement is served within the legal delays, but makes him liable provided such state: ment is served.”

Act 262 of 1916 under consideration by the court, contained the same stipulations as Act 139 of 1922.

On rehearing, the court modified its former decision and held that the owner was liable, but without repudiating the above holding. The court found that. Act 262 of 1916 did not apply to that case, which was governed by Act 229 of 1916, which latter Act does not require

“that such claims should be attested and filed with the owner.”

Act 262 of 1916 does contain that provision, and it is clear that if Act 229 had contained a similar provision to that found in Act 262 the court’s original ruling would not- have been disturbed.

In that case the claimants did, however, record a statement of their acounts as Act 229 required.

As the court had under consideration statutes similar to that of 1922 these cases are in point. These decisions have not been overruled, or modified)

The provision in Section 5 of Act 139 of 1922 to the effect that in case the owner fails to exact bond, etc., he shall be liable

“to the same extent as the surety would have been.”

can be invoked against the owner only in cases where he becomes bound and he is not bound unless the material men or others who have claims against him file their claims with the owner and properly record them as the act provides; thereby bringing into existence the obligation of the owner toward them as created by the act.

In that event, and only in that event, is the owner liable

“to the same extent as the surety would have been.”

which liability is that if the contract is less than $5000.00 he is bound for the full amount thereof, and that if it be for an amount exceeding $5000.00 but not exceeding $100,000.00, he shall be bound for fifty per cent, thereof, or the amount of the bond he should have exacted under Section 1 of the act.

Counsel are in error when they state that the owner’s failure to exact bond deprives him of the right to make only such defenses as a surety who has signed a contractor’s bond could make. The act provides that

“In all cases where surety has been furnished, the surety shall be entitled to make ’ only the same defenses that the contractor for whom he signed the bond is authorized to make.”

In the case of Shreveport Mutual Building & Loan Association vs. Whittington, 141 La. 41, 74 South. 591, the court held that it was not necessary for material men to file a sworn statement of their account with the owner of the building as to condition precedent to recovery as against the surety on the contractor’s bond; and the court said, on rehearing:

“The mistakes which the learned counsel for the surety company make is in not distinguishing between the owner, between whom and the material man there is no contractural relation, on whose part there is no liability except that created by law against, or without, his consent, and the surety company who has voluntarily entered into a contract to pay the material men in case the contractor does not, and has received a consideration for thus engaging itself.”

The contractor cannot defend against the claims for material which he purchased on the ground that the claimants failed to serve notice on the owner. The contractor’s obligation arises from & contract. His surety can, under the act, make only such defenses as he could make. But the owner is not a surety on the contractor’s bond.

In the cases of Audubon Homestead Ass’n vs. A. Stef Lumber Co., 158 La. 1054, 705 South. 62, and Graphic Arts Bldg. Co. vs. Union Indemnity Co., 162 La., 111 South. 470, the Supreme Court held that notwithstanding material men’s liens were not filed and recorded they might be asserted against the contractor’s surety, who is limited to such defenses as the principal on the bond could make.

Counsel for plaintiff cite these cases in support of their contention that the owner in the case at bar is liable. But the cited cases are not in point. The court was there considering the liability of the surety on the contractor’s bond and not that of the owner.

Aside from the decisions which we have cited above, we find that the views which we hold are in exact accord with those entertained by the Orleans Court of Appeal and the Court of Appeal for the First Circuit.

See:

Harry Bros. Co. of La. vs. Connell & Moore, et al, decided by the Orleans Court of Appeal on January 14, 1924; case No. 9408.

Burkes vs. Kennedy, 5 La. App. 338. (Advance Reports No. 15.)

The judgment appealed from, sustaining the exception of no cause of action filed by Mrs. Baugh, the owner of the building, is affirmed, with costs.


text:
    No. 2877
    Second Circuit
    LOUISIANA FARM BUREAU COTTON GROWERS COOPERATIVE ASSN. v. MARTIN
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Par. 35; Damages— Par. 53.
    Attorney’s fees for the dissolution of writ of sequestration are fixed upon value of services rendered on trial of motion to dissolve, and when dissolution is on the merits it is impossible to distinguish between services rendered in defense of suit and for dissolution of writ. In such cases attorney’s fees are not allowed.
    2. Louisiana Digest — Sequestration — Par. 31, 35; Damages — Par. 53.
    Damages for loss in attending court, expense in bonding the writs, attorney’s fees and such services, and time lost by defendant in attending to such matters where dissolution of writ of sequestration is on the merits are too uncertain and vague to serve as basis for judgment.
    3. Louisiana Digest — Damages—Par. 92.
    Where evidence does not show what was grade or value of cotton on date of sequestration and on the date the writs were bonded, the evidence is too uncertain to fix the loss and, therefore, reconventional demand is dismissed as of non-suit.
    Ajppeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by Louisiana Farm Bureau Cotton Growers Co-operative Association against Joe Martin.
    There, was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellant.
    Moss & Moss, of Winnfield, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Louisiana Farm Bureau Cotton Growers Cooperative Association, brought suit to enforce a marketing agreement made by the association with one of its alleged members, Joe Martin, defendant, and in order to conserve its rights during the pendency of the action, it obtained an injunction against defendant, prohibiting him from disposing of certain crops, and a writ of sequestration under which the crops were seized.

Defendant moved to dissolve the writ of sequestration, the motion being based on the pleadings, and on same being overruled defendant obtained the dissolution of the writ of sequestration and injunction on bond, and following he filed an answer in which he denied the allegations of iplaintiffi’s petition and set up various defenses, and reconvened for damages alleged to have been sustained by him through the wrongful issuance of the writs of injunction and sequestration.

On trial judgment was rendered rejecting plaintiff’s demands, dissolving the writs, and awarding defendant judgment in the sum of five hundred dollars damages, and plaintiff appealed.

OPINION

The parties have conceded that the judgment, insofar as it rejected plaintiff’s demands, was correct, and the only question presented to this court relates to the reconventional demand.

The writs were issued on October 4th and bonded on November 6th, 1925, and defendant, in his reconventional demand, claimed three hundred and fifty dollars attorney’s fees, one hundred dollars for attending court and incidental expenses, and five hundred and fifty dollars for loss in the price of the cotton, and the judgment allowed defendant five hundred dollars without specifying as to the items on which the allowance was made.

Defendant concedes that ordinarily damages such as attorney’s fees will not be allowed for the dissolution of conservatory writs where the dissolution is made on the merits, and that where damages, such as expense of attending court and loss of time, result from the issuance of such writs it is essential that the evidence should clearly distinguish same from the expense and time lost in attending court on the trial on the merits; but it is contended that in the present instance, the writs having been bonded and the evidence showing the agreement as to attorney’s fees, and defendant having testified that he lost some time in attending court by reason of the issuance of the. writs, the amounts should be allowed although the writs were dissolved on the trial on the merits.

' Attorney’s fees when allowed on the dissolution of conservatory writs are fixed upon the value of the services rendered on the trial of the motion to dissolve, and when the dissolution is on tlie merits it is impossible to distinguish between the services rendered in defense of the suit and for dissolution of the writ, and in such instances the jurisprudence is well settled that attorney’s fees will not be allowed.

Caillout, et al., vs. Coguenhem, 111 La. 60, 35 South. 529.

Lee Lumber Co. vs. Hotard, 122 La. 850, 48 South. 286.

Hanson Lumber Co. vs. Mestayer, 130 La. 688, 58 South. 511.

Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, 90 South. 273.

Three Rivers Oil Co. vs. Laurence, 153 La. 224, 95 South. 652.

In re: Morgan Co., 155 La. 915, 99 South. 696.

Fontenot vs. Fontenot, 156 La. 844, 101 South. 218.

Witbeck vs. Rea, 158 La. 1003, 105 South. 43.

Fabacher vs. Ruprich, 160 La. 433, 107 South. 295.

And, for the same reason, damages for loss in attending court, where the dissolution is on the merits, cannot be allowed, and if there could be any claim for damages for expense in bonding the writs, the evidence as to the attorney’s fees for such service and time lost by de-, fendant in attending to such matters is too uncertain and vague to serve as the basis of a judgment.

As to the claim for damages for loss by reason of the decline in the price of cotton during the time prior to, the writs being bonded, the evidence shows that the crops had been cultivated by two persons who had rented the lands on which the cotton was raised from defendant, and had agreed to give defendant one-half of the proceeds from the sale of the cotton as rent, and it further appears that at the date of the seizure, October 4th, 1925, there were thirteen bales ready for market, and of the balance of twelve bales some had been picked and some was in the field, and the evidence as to the value of the cotton at that time is the statement of one of the witnesses that he had been offered twenty-two and one-half cents per pound at that time for his crop.

The evidence also showed that there were twenty-five bales gathered which was on hand at the date of the trial, and it was stated that the average weight of the cotton was four hundred and fifty pounds per bale, and there was evidence offered showing the market value of certain grades of cotton on or about November 6th, 1925, the date the writs were bonded; but the evidence does not indicate whether the crop was ready to be marketed at that time.

There is always some speculation in fixing damages, and while one cannot be required to fix the amount with mathematical certainty, the ©resent case is one in which the grades of the cotton could have been ascertained and the market value fixed on the date of the seizure, and on the date the writs were bonded, which would have fixed the decline in price and enabled the court to determine the loss, conceding that the crops were ready to be marketed in the meantime. (Walker vs. Miltenberger, 22 La. Ann. 376.)

At least without such evidence we do not find it possible to have fixed the damages sustained or the decline in the price of the cotton, and we are of the opinion that defendant’s reconventional demand should have been dismissed as of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended as to the reconventional demand, and that defendant’s reconventional demand be dismissed as of non-suit, and as thus amended the judgment appealed from is affirmed.