text:
    No. 9770
    Orleans
    AMES FARM LAND COMPANY, INC. v. THOMPSON
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 158.
    A putting in mora is not necessary where ©arty refuses to comply with his obligations under the contract.
    Appeal from Civil District Court. Div. “B”. Hon. Porter Parker, Judge.
    Action by Ames Farm Land Company, Inc., plaintiff and appellant, against John W. Thompson, defendant and appellee.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lazarus, Michel and Lazarus, of New Orleans, attorneys for plaintiff, appellee.
    P. M. Milner, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for damages, ex contractu, in the sum of $525.47.

Plaintiff bought and defendant sold “50 cars of washed gravel, ©rice $1.28 per yard, 2700 lbs., delivered to Southside switch, via T. P., Marrero, La.” The contract stipulated that “this material is to be shipped at the rate of two (2) cars per week, however, we (plaintiff) reserve the right to order slower shipment in the event we are unable to handle this amount per week”.

The contract was made March 29th, 1922, and eleven of the fifty cars were delivered under its provisions by April 18, 1922, when because of high water in the Mississippi river a suspension of delivery was asked by plaintiff, and absented to by defendant. However, in May, 1922, defendant finding he had some fourteen cars in plaintiff’s vicinity, which had been rejected, prevailed upon plaintiff to accept these cars on the contract, which, according to plaintiff, it only agreed to do, as an accommodation to defendant, inasmuch as road work for which the gravel was used had been suspended and the fourteen cars had to remain on its switch track from June to August, when road construction was resumed.

In this spirit of mutual accommodation, the contract had been executed up to this point, when defendant discovers that a mistake had been made, or, at least, became convinced that it had sold the gravel too cheap. An effort was made to have plaintiff voluntarily increase the purchase price without avail, and thereafter no spirit of accommodation is evident.

No written demand for delivery of gravel was made upon defendant until March 12, 1923, which defendant contends was too late. Plaintiff’s letter was not answered, and was followed by two more. Finally, on April 2nd, 1923, defendant answered, saying “I have no more gravel to give away”.

The contention of defendant is that plaintiff abandoned the contract, because he failed to give orders for delivery of gravel between June 10th, 1922, and March 12th, 1923, the date of plaintiff’s letter making demand for the delivery of the 25 cars due on the contract.

It is also, contended that the right reserved to plaintiff under, the contract to “order slower shipment in the event we are unable to handle this amount per week” does not mean that shipment can be suspended, no matter for how short a period of time, but merely that the number of cars can be reduced from 2 to 1 per week, and it is finally urged that there was no putting in default, a necessary prerequisite to a claim for damages for a passive breach of contract.

We find no justification for the claim that plaintiff abandoned the contract. The interruption of deliveries, due to the threat of high water, was originally agreed to by both parties, as was the delivery of the fourteen- cars, which was done in about fifteen days. The interruption was prolonged to some extent at least by defendant, who desired to see Mr. Eiseman of plaintiff corporation, who was absent from the city, in order to have price of gravel increased. Moreover, the evidence is to the effect that constant telephonic demands were made upon defendant for more gravel. Slower delivery does not mean smaller delivery as defendant maintains in insisting that plaintiff could only reduce the amount of gravel to be delivered from two cars to one under the reservation in the contract allowing slower delivery at plaintiff’s option. As to the failure to put defendant in mora, it was not necessary because he declared he would not make further shipments of gravel under the contract. Milam Morgan Company, Ltd., vs. Atlantic Fruit Co., 12 Orl. App. 306, Stockelback vs. Bradley, 159 La. 336, 105 So. 363.

We are convinced that the whole difficulty in regard to this gravel contract was due to defendant’s discovery that the price he made was too cheap, or, as he puts it in finally refusing to complete deliveries under the contract, “I have no more gravel to give away”.

Defendant, we conclude, breached a contract which obligated him to deliver 25 cars of gravel .(25 cars having been delivered) at Marrero, La., Southside switch, T. & P. Ry., at $1.28 per cubic yard of 2700 lbs.

Plaintiff bought from the Fluker Gravel Company, following defendant’s refusal to complete his contract, 25 cars of gravel “for road building at 65c per ton of 2000 lbs., railroad weights, f. o. b. cars our pits at Fluker, La.”

It is contended that the failure of plaintiff to enter into a contract with the Fluker Company for the 25 cars of gravel upon the precise terms stipulated in the contract with defendant releases defendant from all liability and, we are referred to French Market Ice Mfg. Co. vs. Elias Landaur, Receiver et al., 4th Orl. App. 87, as authority for that proposition.

In the cited case it was held that. a surety “is relieved from liability by a substantial change in the plans made by the obligee without his knowledge or consent”. In the case at bar we are not considering the obligation of a surety whose principal has enlarged his undertaking without consulting him. The question before us is the quantum of damages due for the breach of a contract of sale by the vendor. The rule is that the vendor owes the vendee the difference between the market price and the selling price prevailing at the time and place of delivery. We would be unable to determine this difference in this case for the record is deficient in that respect, were it not for the agreement of counsel that the amount awarded by the trial court in its judgment is correct, assuming there is liability.

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


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9813
    Orleans
    BIRNEY v. SOUTH NEW ORLEANS LIGHT AND TRACTION CO.
    (June 20, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 637.
    Wherq Judgment of trial court is clearly excessive the amount of damages allowed will be reduced.
    Appeal from Civil District Court. Div. “B”. Hon. M. M. Bo'atner, Judge.
    Action by T. J. Birney, plaintiff and appellee, against South New Orleans Light and Ttaction Co., defendant and appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    J. D. McGovern, H. J. Miller, J. A. Morales, of New Orleans, attorneys for plain-tiff, appellee.
    McCaleb and McCaleb, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff’s automobile was damaged under circumstances which, admittedly, involve defendant’s responsibility.

The cost of repairing the car has been estimated at $10.00 by an expert testifying in defendant’s behalf and at $134.00 by an expert testifying fqr plaintiff. The trial judge allowed $109.00.

We have concluded to reduce the amount to $44.00, consequently, the judgment appealed from will be amended accordingly. The defendant to pay all costs.


author: JONES, J.

text:
    No. 9712
    Orleans
    CHESTER v. NEW ORLEANS PUBLIC SERVICE INC.
    (June 20, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing Refused.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court).

    1. Louisiana Digest — Appeal—Par. 625.
    Where only questions of fact are involved, the judgment of the lower court will be affirmed unless manifestly erroneous.
    Appeal from Civil District Court. Div. “F”, Hon. Percy Saint, Judge.
    Action by Mrs. Maria Chester, plaintiff arid appellant, against New Orleans Public Service Inc., defendant and appellee.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. Á. Colongne, of New Orleans, attorney for plaintiff, appellant.
    Dart, Kernan and Dart, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sued for Ten Thous- and, One Hundred and 00/100 ($10,100.00) Dollars for damages for personal injuries alleged to have been sustained on July 17, 1923, through the negligence of the defendant.

The charges of negligence are:

(1) That while plaintiff was alighting from the car of defendant’s .Carondelet Street line at Broadway and Spruce streets, the conductor closed the folding doors and raised the step, thereby throwing her to the ground.

(2) That the car was started and step raised, while she had one foot on the step.

(3) That the car did not stop at the regular place for discharging passengers.

Defendant denies that it was guilty of the negligence charged and avers that the accident in which plaintiff suffered the injuries alleged was caused, so far as respondent was informed, either by the high heels worn by her or by her awkwardness in stepping from the car-step to the street and in not exercising that care required hy the circumstances then and there existing.

The lower judge rejected plaintiff’s demand and plaintiff has appealed.

Only questions of fact are involved and a careful reading of the entire record fails to show any manifest error in the decision below. It is therefore affirmed.


text:
    No. 9817
    Orleans
    SUCCESSION OF SIMMES, WIDOW OF GOMEZ
    (July 14, 1927. Opinion and Decree.)

      (Syllabus hy the Court)

    1. Louisiana Digest — Sales—Par. 8; Marriage — Par. 159.
    Where the owner of a lot of ground conveys it by an authentic act, purporting to be a sale, to a contractor for $600.00, and the contractor, after erecting a building on the lot, sells it to a homestead for $1800.00 cash and the homestead immediately sells it to the original owner for $1800.00 credit, the several transactions will be regarded as bona fide sales. The contention that the series of transactions should be regarded as a mortgage is untenable. Under such circumstances the fact that the owner is married, under the regime of the community, when the property is acquired from the homestead, creates a presumption that it is community property. The fact that originally the lot was owned by the wife, as her paraphernal property, is of no consequence.
    Appeal from Civil District Court. Div. “C”. Hon. E. K. Skinner, Judge.
    This is an injunction enjoining sale of property belonging to Succession of Florence Simmes, Widow of Maximillion Gomez.
    There was judgment for opponent and administrator appealed.
    Judgment affirmed.
    J. A. Morales, Josiah Gross, Jno. Basich, Jr., of New Orleans, attorneys for administrator.
    Hugh S. Suthon, Fred' Zengle, Jr., of New Orleans, attorneys of appellee.
   WESTERFIELD, J.

This is an appeal from a judgment enjoining, at the instance of the husband, the sale of certain real estate, in the succession of the wife, upon the ground that it is community property.

The sole issue is whether the property, the sale of which was enjoined, was a paraphernal or community asset.

The deceased acquired the property in question (Lot 19, Sq. 655, First District) March 11th, 1907, by act before B. H. Parson, N. P. At that time deceased was suffering, or enjoying, as the case may be, her first widowhood, a status, which, whatever emotion it may have superinduced, she afterwards became accustomed to. Emanuel Jones, Eugene Gomez and Louis Hamilton were three husbands she survived. At least, she is described in several authentic acts as the widow of all three of them, though some confusion exists as to her first husband. In one act of sale Louis Hamilton is accorded that honor, and James Simmes, whom we know positively as her fourth, last, and surviving spouse, is given second place. In an act of mortgage, Emanuel Jones is credited with primacy among the husbands of the deceased and Eugene Gomez given second place. Be that as it may, when the property in question was acquired, deceased was, for the moment, unmarried, thus stamping her acquisition with a paraphernal character. She married James Simmes in 1909. He survived her, and is the plaintiff in injunction here. It is contended that James Simmes, as husband, left much to be desired; that he was far below the average of his wife’s husbands; and, he left his wife in 1915 and provided little or no support for her. Whatever may have been Simmes’ shortcomings, he was legally married without a marriage contract and was not legally separated, a circumstance which creates the regime of the community of acquets and gains. Florence Simmes still owned lot 19 when she married Simmes. It is generally admitted that the lot was vacant, except for a flimsy structure described as a shack, valued at approximately $200.00. It was considered advisable to improve the property, by erecting a habitable structure, and to this end it was transferred to a party by the name of Emanuel Singer, as security, (the act purports to be a sale) for money he advanced to make the improvements. When the building was finished, Singer transferred it to the German-American Homestead, by act before F. J. Dreyfous, June 13, 1912, for $1800.00 cash, and on the same day the homestead sold it to Florence Simmes, by act before the same notary, for the same consideration, wholly on credit.

The contention is that the lot, being paraphernal at the time of the Simmes marriage, the various transactions, called sales, by means of which money was obtained to improve the property, were in fact only mortgages, and that therefore title to the property in reality always remained in Florence Simmes, and her final acquisition during the regime of the Simmes community was of no importance, and' simply amounted to a confirmation of title in her.

We are not in accord with this view.

The conveyance to Singer in the form of a sale for an alleged consideration of $600.00, of which sum $300.00 was employed to pay off a pre-existing mortgage, was a reality, and not a simulation. Otherwise, the homestead acquired no title and gave none to Florence Simmes. If Singer became the owner, by this transaction, Florence Simmes parted with the ownership, since two people can not own the same property at the same time.

The succession of Florence Simmes claims title through the homestead as its author, and at the same time assumes the wholly inconsistent position of attacking the homestead’s title as a disguised mortgage. We quote from counsel’s brief:

“It is clear from this evidence that the transfer by deceased to Singer was intended to secure him in the building; that the transfer by Singer to the homestead was for the purpose of realizing the amount of the building, and the transfer by the homestead to the deceased was intended to place the property in the statu quo ante, subject to the loan in favor of the homestead. It certainly was not intended by deceased .to part with her title forever. Such a transaction can hardly be called a sale in the sense of word.
“Courts will regard the essence of contracts, rather than their form. The form is subordinate to the real character, which depends entirely on the obligations they import; and though the parties designate their convention as a particular contract, yet if in reality it be another, it will be so considered and acted on.”

Knox vs. Dixon, 4 La. 406.

Hutchins vs. Field, 10 La. 237.

Gasquet vs. Oakey, 15 La. 537.

Chaffe vs. Ludellin, 27 La. 607.

Tete vs. Lamaux, 45 La. 1343; 14 So. 241.

Singer’s acquisition was “to secure him in the building,” the homestead acquired “for the purpose of realizing the amount of the building” and Florence Simmes acquired in order to restore the status quo ante. Three authentic acts are repudiated without a word of explanation or apology, upon the pretext of looking through form at the substance of transactions in order to restore to the succession the property with its erstwhile paraphernal status. The fact that deceased sold it, encumbered with a $300.00 mortgage, for an alleged consideration of $600.00, and reacquired it from the homestead for $1800.00 entirely on credit, is not, in this view of the case, of any importance.

We are of opinion that the ancient title of Florence Simmes must be ignored and the property regarded as an acquisition by her during her last community.

It is therefore presumed to be community property. R. C. C. 2402. This presumption has not been overcome. There is no recital in the act to the effect that Florence Simmes was purchasing with her separate funds and therefore no estoppel against her husband, who signed the act to authorize his wife. The contention that the purchase price was subsequently paid by the wife alone is not sustained by the evidence, besides, if the succession is a creditor of the community adjustment can be had in a proper proceeding.

We might add that a purchase from a building and loan association can not be treated as a mortgage but is a sale whatever the intention of the parties. Holloman vs. Alexandria Building & Loan Assn., 137 La. 970, 69 So. 764; Lichtenstein vs. Lyons, 115 La. 1056, 40 So. 454; Fortier vs. Barry, 111 La. 776, 35 So. 900.

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


text:
    No. 8986
    Orleans
    PERFECTION GARMENT COMPANY v. LANASA
    (May 23, 1927. Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus hy the Court)
    1. Louisiana Digest — Mandate—Par. 3, 6.
    A wife, who acts for her husband! in managing a dry goods store in his absence, and assists in the buying in his presence to the. knowledge and in accord with the experience of plaintiff’s salesman, has the implied power to purchase a bill of millinery for account of her husband, who will be bound for the purchase price. Art. 2997 of the Civil Code.
    2. Louisiana Digest — Mandate—Par. 3, 6, 48.
    Art. 2997 of the Civil Code, which requires that the mandate to buy and sell be express and special does not apply. Art. 3000 of the Civil Code, providing that a mandate to fulfill certain functions of doing business in the ordinary course of affairs need not be specific controls.
    Appeal from Civil District Court. Div. “D”. Hon. Porter Parker, Judge.

      Action by Perfection Garment Company against Antonio Lanasa.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Sol. Weiss, Wiener and Netter, of New Orleans, attorneys for plaintiff, appellee.
    U. Marinoni, Jr., Michel Provosty, of New Orleans, attorneys for defendant, appellant.
   OPINION

WESTERFIELD, J.

Alexander Kobrinetz, doing business as the Perfection Garment Co., sues for $402.50, as damages, alleged to be due for breach of contract of sale of certain millinery.

Defendant denies having contracted for the millinery. Prom a judgment for plaintiff, defendant appeals. The record discloses the following:

Plaintiff, who resides in New York, was represented here by Harry Katz, as a salesman. Katz claims to have sold to Mrs. Lanasa, plaintiff’s wife, the merchandise. Mrs. Lanasa feebly denies the transaction, but we are convinced that she bought the goods, and we advance to the real point in the ease: Was Mrs. Lanasa authorized-to represent her husband in the transaction?' It is in evidence that, on a former occasion, plaintiff bought similar merchandise from defendant, through the same salesman, and that his wife was present and selected the goods. It is reasonable to suppose that defendant would rely upon his wife’s judgment in purchasing clothing and millinery which he intended to sell to women, rather than upon his own. Defendant occasionally left the city (he was absent when the merchandise was bought for the price for which this suit is brought) and on such occasions his wife managed his business. There is every reason to believe that the wife had ample authority, but it was not express and special. When the goods were finally rejected by defendant, the reason he gave did not remotely relate to the authority of his wife to buy, but solely upon the ground that he was going out of business, as the following letter plainly shows:

“Dear Sir:
“I am just back from my trip and I have found your bill for coats and also notice from the Morgan Line for a case of coats. I like to inform you that I cannot take your shipment because I am going out of business so advise the Morgan Line to return your shipment back and do not ship no other coats. I am sorry that I cannot take the case of coats but just as I tell you above I am going out of business in about 30 days.”

That Mrs. Lanasa had tacit or implied authority to act for her husband there can be little doubt, and none that assails us. Our attention is called to Art. 2997, R. C. C., which provides that the power “to sell or buy” must be “express and special”.

It is not necessary under this article that the power be in writing, but express and distinguished from implied and general. Nalle & Co. vs. Higginbottom, 21 La. Ann. 477. Power to sell can not be implied. Woodhouse vs. Insurance Co., 35 La. Ann. 242. Clear intention to authorize an agent to sell must be shown. Tomlinson vs. Allen, 152 La. 41, 92 So. 727. Lewis vs. Cane, 157 La. 718, 103 So. 19. A power, authorizing an agent to sell stock does not authorize him to give it in payment of his principal’s debt. Webster vs. Harman, 148 La. 1080, 88 So. 462.

There is no pretention that the power to buy was express or special. Defendant conducted a dry goods store, selling women’s clothing. Hik wife was active in its management and in his absence in complete control. She bought the merchandise from plaintiff’s agent in defendant’s absence. Either she was capable of binding her husband by implied authority or no contract of sale resulted. Art. 3000 R. C. C. reads as follows:

“Powers granted to persons who exercise a profession or fulfill certain functions, of doing business in the ordinary course of affairs to which they are devoted need not be specified, but are inferred, from the functions which these mandataries exercise.”

' We are of opinion that this article, and not Article 2997 governs this case. It would subject all business transactions to great and unreasonable restraint to require an express special mandate to buy and sell the numerous items of merchandise dealt in by the many and varied mercantile establishments, partnerships and corporations doing business in this state. It is common practice for managers and executives, clerks and salesmen to act under implied powers in buying and selling the merchandise dealt in by their several establishments. Thousands of purchases and sales are made daily and hourly by agents and employees without express and special mandate. Article 2997 applies to transactions by persons “out of the ordinary course of affairs to which they are devoted”. Article 3000 declares that the mandate need not be specific in fulfilling certain functions connected with the ordinary manner of doing business. Peter James vs. Mrs. M. J. Lewis and Husband, 26 La. Ann. 644; Perrolin vs. Cucullu, 6 La. 590; Bezon vs. Pike Lapeyre & Bro., 23 La. Ann. 788.

Our conclusion is that the wife in this case had the implied authority, as agent for her husband, to purchase the merchandise.

The amount of damages claimed does not appear to be in dispute.

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


text:
    No. 10,656
    Orleans
    WILLIAMS v. LEYLAND STEAMSHIP LINE
    (June 6, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing Refused.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal, Par. 508.
    The motion to dismiss is without merit, and may be said to have been abandoned.
    2. Louisiana Digest — Appeal—Par. 508.
    The brief, and argument of counsel, considered and discussed the merits, exclusively. The motion to dismiss is denied.
    3. Louisiana Digest — Master and Servant— Par. 154.
    Where an employee was injured in the presence of the employer’s foreman, no notice of injury is necessary under Section 1 of the Compensation Law, providing that “no proceedings under this act for compensation shall be maintained unless notice of injury shall be given the employer within six months after the date of injury or death”.
    4. Louisiana Digest — Master and Servant— Par. 154.
    A foreman is an agent or representative of his employer in the sense of Section 2 of the Compensation Law, which dispenses with notice when “the employer, or his agent, or representative, had knowledge of the accident”. Whether the foreman communicates his knowledge of the accident to his principal is immaterial. Such knowledge will be conclusively imputed to the employer.
    Appeal from Civil District Court. Div. “A”. Hon. H. C. Cage, Judge.

      Action by George Williams against Fred. Leyland Steamship Line.
    There was judgment for plaintiff and defendant appealed.
    “Motion tq dismiss” denied and judgment affirmed.
    George Sladovich, of New Orleans, attorney for plaintiff, appellee.
    Dart and Dart, of New Orleans, attorneys for defendant, appellant.
   OPINION

WESTERFIELD, J.

This is a suit under the Workmen’s Compensation Law.

From a judgment, condemning defendant to pay plaintiff the sum of $20.00 per week for 400 weeks, defendant appeals.

The defense relied upon by defendant is the alleged failure of plaintiff to give defendant notice of injury, of which fact it .is averred defendant had no knowledge.

Section 11 of the Compensational Law, as amended by Act 247 of 1920, reads:

“1. That no proceedings under this act for compensation shall be maintained unless notice of the injury shall be given to the employer within six months after the date of injury or death. * * *
“2. Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, or his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice.”

Sections 13 and 14, as amended by Act 38 of 1918, reads:

“Section 13. That the notice provided for in Section 11 shall be made in writing and shall contain the name and address of the employee, and shall state in ordinary language, the time, place, nature and cause of the injury, and shall be signed by the person giving or making same. The notice piay include the claim.
“Section 14. That any notice or claim under this act shall be given to the employer. If the employer be a partnership, then the notice may be given to any one of the partners. If the employer he a corporation, then the notice may be given to any agent of the corporation upon whom process may be served, or any officer of the corporation, or any agent in charge of the business at the place where the injury occurred. If the employer be a body politic, then the notice may be given to the individual connected with said body politic upon whom process may be served. Provided, however, that in any case notice of accident may be given to the person designated in the notice posted in accordance with Section 12. Any such notice shall be given by delivering it or sending it by mail by registered letter addressed to the employer or his or its hereinabove designated officer or agent at his or its last known residence or place, of business.”

The argument is that, considering these sections of the law together, the notice referred to is a written notice, emphasis being placed upon the words appearing in Section 14 to the' effect that “any such notice shall be given by delivering it, or sending it by registered mail to the employer, qr his hereinabove designated officer or agent”.

Plaintiff, a longshoreman, was injured in the presence of Frank Lynn, a fellow-workman, and Alfred Handeock, defendant’s foreman, by reason of a piece of metal ore falling from an iron bucket, and hitting him on the knee, causing ankylosis and permanent disability.

Defendant admits that Handeock was its foreman and in charge of plaintiff and other workmen who were unloading the metal ore for defendant’s account at the time of the accident. Handeock testified that plaintiff was injured in the manner claimed by him and says he called defendant’s office on the telephone and gave notice of the accident to someone, whose name he does not know, and did not ask; that the unidentified party instructed him to make a detailed report upon the customary forms, provided by defendant, for such purpose, to which the witness claims to have answered that he had not been provided with such forms and that the other party, promised to send him some, which he did not do.-

Defendant insists that the knowledge of its foreman cannot be imputed to it, so as to bring the case within the terms of Section 2, to the effect that want of notice shall not bar proceedings under the act “if it be shown that the employer or his agent or representative had knowledge of the accident”.

The question therefore is, whether a foreman is such agent or representative of his employer as contemplated by the act. If, as is claimed, defendant’s foreman failed to communicate with his superiors, can his neglect, or disloyalty, or bad faith affect the situation unfavorably to plain tiff?

The object of notice is to afford the employer an opportunity to investigate, to detect fraud, and to minimize liability by the use of the best medical skill. It has been held that notice to a foreman, coupled with other circumstances from which actual knowledge may be inferred, is sufficient. Connell vs. Window Glass Co., 2 La. App. 93.

In Western States Gas and Electric Co. vs. Bayside Lumber Co., (Cal.) 187 Pac. 735, it was held that the employer had actual knowledge of the accident because “its foreman arrived at the scene of the accident before the deceased was removed and while the circumstantial evidence of the cause of his death was still manifest to his observation. Under these circumstances the law charges the employer with ■notice”. See also Pryor vs. Sherer & Co., et al, 5 Cal. 1.

In Allen vs. City of Millville (N. J), 95 Atl. 130, the court said: “A private or municipal corporation, as a legal entity, cannot, itself, have knowledge. If it can be said to have knowledge at all that must be imputed knowledge of some corporate agent”. * * *

The language indicates what would be called knowledge in common parlance, such knowledge as most of us are confined to in the daily affairs of life.

Handcock was defendant’s foreman and was present when the accident occurred and therefore had actual knowledge in the most literal sense of the term. He was the agent of defendant. His knowledge must be imputed to defendant, whether it was communicated to officials of the defendant corporation, or not.

In an English case, Lord Chancellor Brougham, in Kennedy vs. Green, 3 Myl. & K. 699, quoted by Mechem, Vol. 2, Second Edition, p. 1384, it was said: “Policy, and the safety of the public forbids a person to deny knowledge, while he is so dealing as to keep himself ignorant, or so that he may keep ignorant, and yet all the while let his agent know and himself perhaps profit by that knowledge. In such a case it would be most iniquitous, and most dangerous, and give shelter and encouragement to all kinds of fraud, were the law not to consider the knowledge of one as common to both, whether it be so in fact or not”.

It is, of course, the duty of the agent to disclose to the principal all knowledge he may possess which seems essential to the principal’s protection or guidance. “This duty the law conclusively presumes the agent to have performed” and such knowledge the law imputes to the principal whether the agent has “in fact disclosed it or not”. Mechem, Vol. 2, p. 1390.

We conclude that defendant had actual knowledge, as required hy the act, of the fact of plaintiff’s injury and that therefore no notice was necessary.

The judgment appealed from is affirmed.


text:
    No. 10,824
    Orleans
    ROBINSON v. FRIESS
    (July 5, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing Refused.)

      (Syllabus t>y the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    Where only facts are involved, the judgment of the lower court will be affirmed, unless manifestly erroneous.
    Appeal from First City Court. Div. “C”. Hon. Wm. V. Seeber, Judge.
    Action by Henry W. Robinson against W. M. Friess.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellant.
    A. R. Christovich, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sues for damages in the amount of One Hundred Eighty-nine and 38/100 ($189.38) Dollars, alleged to have been sustained by his automobile, on November 15th, 1924, on Elm street between Fern and Burdette streets.

He alleges that his car was being driven by his son at a moderate rate of speed in the middle of Elm street; and that it had reached the middle of the block between Fern and Burdette, when the Studebaker truck of William M. Friess, the defendant, suddenly emerged from behind a parked Willys-Knight car on the right hand side of Elm street and struck plaintiff’s automobile; that the cause of the accident was carelessness and negligence on the part of said Friess in suddenly coming from the right to the left hand side of the street in front of his car.

Defendant after denying the allegations of plaintiff’s petition and averring that plaintiff’s car was being driven at a high and reckless rate of speed reconvened in the amount of One Hundred Thirty-nine and 75/100 ($139.75) Dollars, alleging that the accident was due solely to the negligence of the driver of plaintiff’s car, in violating speed and traffic laws, in failing to avail himself of the last clear chance to avoid the accident.

The Royal Indemnity Company intervened as insurer of plaintiff herein.

Upon the trial of the cause there was a judgment in favor of defendant, dismissing the suit at the costs of plaintiff; and further judgment dismissing the reconventional demand at cost of defendant, from which judgment plaintiff has appealed and defendant has answered.

A. M. Conway, witness for plaintiff, who did not see the accident, testified to the position of the two cars and also that Robinson’s car had skidded several feet after the collision.

H. M. Robinson, driver of the car of plaintiff, testified that on the day and hour he was driving about twenty miles per hour down Elm street, which is only nineteen feet wide, and that just as he, Robinson, got about 35 feet from the scene of the accident Mr. Friess’ car suddenly shot from the right hand side of Elm street to the left to pass a parked car, whereupon the two cars collided; that the accident took place about even with the left rear fender of the parked car; that the distance between the right hand curb and the parked car was not wide enough to admit two cars to pass; that he had just left the L. S. U.-Tulane football game, which was in progress, and was returning to it with pennants marked “Welcome L. S. U.” when the accident occurred; that he did not change his speed as he passed the parked car.

Friess testified that he was coming up Elm street about 18 miles an hour, making a customary delivery, in his Studebaker truck; that he was traveling up the middle of the street and as he started to pass on the left of a parked Willys-Knight car, which was on the right hand side of Elm street, saw midway between Burdette and Fern streets the car of Mr. Robinson; which at that time was near Fern street about 140 feet away, coming very rapidly; that it struck his car just, as he was passing the front end of the parked car and veering to the right.

Friess testifies that Mr. Robinson was traveling about 35 or 40 miles an hour and after the collision went about 45 feet before he could stop his car.

The fourth witness testified, that he was driving behind Friess on Elm street; that he had been driving behind Mr. Friess for some distance and knew that he was no.t going over 18 miles an hour; that Friess was traveling in the middle of the street and had almost passed the parked car when the car of plaintiff, coming at a fast rate of speed, struck defendant’s car; that, when Friess’ car started to pass the parked car, plaintiff was near Fern street, betweén 100 and 150 feet away; that after the collision, Mr. Robinson’s car went about 45 feet and that it was coming at a good rate of speed, about twenty-five or thirty miles an hour.

As only questions of fact are involved and as the above analysis of the evidence convinces us that the lower judge was correct in his conclusions, the judgment is affirmed.


text:
    No. 9643
    Orleans
    TITUS v. JACKSON ET AL
    (February 28, 1927. Opinion and Decree.)
    (March 14, 1927. Rehearing Refused.)
    (April 26, 1927. Writ of Certiorari and Review Granted by Supreme Court.)
    (October 6, 1927. Decree of Supreme Court Affirming.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 4, 99.
    A contract to buy and sell real estate, under which the buyer agrees to buy subject to homestead loan enables the buyer to prevent or hinder the happening of the event upon which his obligation depends, and is therefore void as containing the potestative condition.
    Appeal from Civil District Court. Div. “D”. Hon. Porter Parker, Judge.
    Action by Louis J. Titus against Mrs. Helen Jackson, Widow Milton J. Cunningham, Edward Murphy and Gus Salomon, Inc.

      •' There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Fred Zengel, Jr., of New Orleans, attorney for defendant, appellee.
   OPINION

WESTERFIELD, J.

Plaintiff, Louis J. Titus, through a real estate agent by the name of Salomon, offered to buy a piece of property, belonging to Mrs. Helen Jackson Cunningham, defendant herein. The offer was accepted by Mrs. Cunningham through another real estate agent, acting for her, by the name of Edward Murphy.

Salomon gave Murphy $750.00, which he obtained from plaintiff for the purpose, to apply to the purchase price. Titus declined, or at least failed to complete the transaction, it is immaterial which, and he was put in default by a real tender in proper form. Thereafter Mrs. Cunningham sold the property to someone else and Mur.phy, after deducting his commission, delivered the deposit of $750.00 to her.

Titus sued everybody concerned, in solido., for the return of his money. Salomon, who operated as a corporation, could not be cited, or in any event was not considered as a factor by the court below, for the judgment ignores him, will not be considered. Moreover, he acted as agent for plaintiff, and we fail to see any reason for holding him personally responsible. Murphy was Mrs. Cunningham’s agent, as she frankly avows, and we are not advised of any ground upon which he can be held to account to plaintiff. Mrs. Cunningham alone, if any one, is responsible. Her counsel justify the retention of the money upon the ground that it is earnest money and as such forfeited to her by plaintiff’s refusal to comply with his agreement to purchase.

The agreement resulting from Mrs. Cunningham’s acceptance of Titus’ offer is not an absolute one but conditional because it contains the phrase “subject to homestead loan”. Plaintiff offers to huy defendant’s property for $7500.00 cash and upon other terms sufficiently definite “subject to homestead loan”.

What is meant by these words? When is the offerer bound to the offeree under such a contract? The homestead is not designated, nor is the amount of the loan, which the unnamed homestead is to make to the offerer stipulated. The willingness of a homestead to loan the money would depend largely upon the amount asked. Perhaps one homestead would take greater chances than another and very probably, for the greater risk, would exact a greater interest charge or bonus. Who is to determine these things? With whom is the choice of the homestead? Who fixes the amount of loan, and conditions of the loan? We believe it may fairly be answered, the offerer.

Our Civil Code declares: “Art. 2024. The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.

“Art. 2034. Every obligation is null that has been contracted on a potestative condition on the part of him who binds himself.”

It cannot be doubted that, under the agreement we are considering, plaintiff has the power “to bring about or hinder” the homestead loan. It will be observed that the Code in defining the potestative condition describes it as one which may be brought about or hindered by one of the contracting parties, not “and hindered” but “or hindered”.

“It is of the essence of agreements which consist in promising something that they should produce an obligation in the party making the promise to discharge it; hence it follows, that nothing can be more contradictory to such an obligation, than an entire liberty in the party making the promise to perform it or not as he may please. An agreement giving such an entire liberty would be absolutely void for want of obligation. If, therefore, I agree with you to give you something in case I please, such an agreement is absolutely void.” Pothier on Obligations, Yol. 1, par. 47, page 126.

Our conclusion is that the agreement of sale is absolutely void as containing the potestative condition by law.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment for plaintiff, Louis J. Titus, and against the defendant, Mrs. Helen Jackson, widow of Milton J. Cunningham, in the sum of $750.00, with interest thereon at the rate of 5% per annum from judicial demand, and all costs.


author: CLAIBORNE, J.

text:
    No. 9815
    Orleans
    BARKLEY & CO., LTD., v. BURGUIERES CO., LTD.
    (July 5, 1927. Opinion and Decree.)
    (August 1, 1927. Rehearing Refused.)
    (October 4, 1927. Writ of Certiorari and Review Granted by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 220, 240.
    Article Civil Code 2521 relative to apparent defects has no application to sales made on samples, when the purchaser has not inspected the thing sold.
    2. Louisiana Digest — Sales—Par. 218, 219, 240.
    Nor does Article 2521 of the Civil Code apply when the thing sold is contained in boxes, bags, barrels or packages which must be opened to permit inspection.
    3. Louisiana Digest — Sales—Par. 220.
    The sample is tacit representation and warranty of the quality pf the thing sold, and the vendor must deliver the thing sold equal to the sample.
    4. Louisiana Digest — Sales—Par. 138.
    A buyer who has sold the thing bought may still claim a diminution of the price.
    Appeal from Civil District Court. Div. “D”. Hon. Porter Parker, Judge.
    Action by John Barkley & Co., Ltd., against J. M. Burguieres Co., Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    C. R. Beattie and Ivy G. Kittredge, of New Orleans, attorneys for plaintiff, appellant.
    Borah, Himel, Block and Borah, of New Orleans, attorneys for defendant, appellee.
   OPINION

CLAIBORNE, J.

This is a suit by a purchaser of sugar against his vendor to recover on his warranty.

The plaintiffs, domiciled in the City of New Orleans, allege that on July 22nd, 1921, the defendants, who were members of the Louisiana Sugar and Rice Exchange of New Orleans, exhibited on said Exchange to the plaintiffs, who are also members of said Exchange, a sample of sugar then being made or about to be made by the defendants in their sugar factory in the parish of St. Mary, and offered to s'ell to plaintiffs a quantity of sugar on the basis of, and to be equal to, said sample; the plaintiff obtained an option on said sugar; that plaintiffs are dealers in sugar and buy it for resale at a profit as was well known to defendants; that prior to completing the purchase of said sugar from the defendants, plaintiffs, by wire and letter, offered the same to Armour and Co. of Chicago at the price of three and a half cents per pound net F. O. B. plantation; which Armour and Co. accepted and agreed to take two car loads of said sugar; that subsequently plaintiffs accepted the offer of defendants and purchased from them two car loads of said sugar at the price of three and one-quarter cents per pound F. O. B. cars at the factory of the defendants; that on July 28th, 1921, plaintiffs gave defendants shipping instructions directing them to ship said sugar in the name of petitioners, “order notify Armour and Co., Mincemeat Department, Chicago, 111.,” and asking that the shipment be made in two cars containing each 140 barrels as the minimum weight of car load shipments to Chicago was 60,000 pounds; that said sugar was shipped and consigned by defendants, as directed, on two cars; that said sale having been made on the Louisiana Sugar and Rice Exchange was governed by the rules of said Exchange which justify rejection of sugar if not equal to sample; that the sale was of two car loads of sugar, but the exact number of barrels and pounds was not then known until said sugar was made and weighed; that both of said cars moved from the factory of defendants on or about July 31st, 1921; one of said cars was delivered to Armour arid Co. in Chicago on August 6th and the other on August 8th, 1921; that on the arrival of said cars at Chicago, Armour and Co. notified plaintiffs of the bad condition of the sugar which was leaking from the barrels like syrup and that they could not accept the same; and that there was a shortage in weight; that in order to save freight and other charges plaintiffs accepted from Armour and Co. an offer of two and one-half cents per pound at shipping point for actual weight; that plaintiff notified the defendants of the complaints of Armour and Co. and offered that each should send an agent to Chicago to examine the sugar and report, or should agree upon an agent already in Chicago for the same purpose, or have the cars returned to New Orleans where the sugar could be examined, all of which propositions defendants refused to accept; that Armour and Co., having paid plaintiffs for said sugar at three and one-half cents per pound and on factory weights before having received the same or. having discovered its bad condition, claimed of plaintiffs the difference in quality and weights and the reduced price of two and one-half cents per pound; that the sugar contained in one car was billed to Armour and Co. and paid by them at 57,321 pounds at three and one-half cents per pound, making $2004.24, while the true weight in said car was 56,050 pounds at two and one-half cents was $1401.25, making a difference of $604.99; that the sugar in the other car was originally billed to Armour and Co. at 59,436 pounds at three and one-half cents was $2080.26, when as a matter of fact the true weight was 57,890 pounds, which at two and one-half cents per pound amounted tq $1447.25, making a difference of $633.01, and together $1238.00; that plaintiff reimbursed Armo.ur and Co. the above sum of $1238.00; that the sugar loaded by the defendants upon the cars was not equal to the sample exhibited to plaintiff and on the basis of which it was sold, but was inferior to the sugar of said sample; that the price which Armour and Co. agreed to pay was the price sugar of that quality was then worth, and that it was only because of the quality inferior to the sample that Armour and Co. refused to pay for it; and that the quality and grade of the sugar actually delivered to plaintiffs and to Armour and Co. was not worth more than two and one-half cents per pound; that before the arrival of the sugar in Chicago and before plaintiffs were made aware of the inferior quality of the sugar and shortage in weight, they had paid the defendants on August 19th, 1921, the price agreed upon, based upon the erroneous factory weights, namely, the sum of $3794.60. The plaintiffs, therefore, claim of the defendants $1238.00 with five per cent per annum interest from August 19th, 1921.

The defendants filed an exception of no cause of action.

This exception is based upon Article 2521 (2497) of the Civil Code, which reads as follows:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are among the number of redhibitory vices.” C. C. 1847 (1841) S. 3.

This principle has been adopted by the common law. 35 Cyc. 229; 13 Wall 379; 77 U. S. 388.

But this article does not apply in this case for two reasons. The first is that the sugar was sold by sample. In such a case the purchaser does not inspect, and is not expected to inspect, the article sold and delivered. He inspects only the sample. If the article delivered corresponds to the sample, he cannot complain. But it is the obligation of the seller to deliver an article corresponding with the sample. If he does not, the purchaser is under no obligation to consummate the sale by paying the price.

The exhibition of a sample on the sale of merchandise is a tacit representation of its quality, and unless the warranty be clearly and explicitly excepted the vendor must deliver the article in a condition equal to that of the sample.

Brown et al vs. Duplantier, 1 Mart. N. S. 312.

Phillipi vs. Grove, 4 Rob. 315.

Clarke vs. Thomas, 10 Rob. 5.

Hall, Kemp & Co. vs. Plassan, 19 La. Ann. 11.

Penn vs. Kearny, Blois & Co., 21 La. Ann. 237.

Blanc vs. Murray, 36 La. Ann. 169.

Counsel for the defendants, with the utmost confidence, asserts that Article 2531 applies to sales by samples. But he does not rest his assertion upon any authority, nor have we been able to find any. But the Supreme Court of the United States has said in Barward vs. Kellogg, 77 U. S. 388:

“No principle of the Common Law has been better established, or more often affirmed, both in this country, and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of uq fraud, and is neither the manufacturer nor grower of the article he sells, the maxim, caveat emptor applies.”
“One of the main reasons why the rule does not apply to the case of a sale by sample is because there is no opportunity for personal examination of the bulk of the commodity which the sample is shown to represent.”

In Pope vs. Allis, 115 U. S. 371, the court said; “When the subject matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of these qualities being part of the description of the thing sold becomes essential to its identity 'and the vendee cannot be obliged to receive and pay for a thing different from that for Which he contracted.

Authorities: “and so, when a contract for the sale of goods is made by sample, it amounts to an undertaking on the part of the seller with the buyer that the goods are similar, both in nature and quality, to those exhibited, and if they do not correspond the buyer may refuse to receive them, or if received, he may return them in a reasonable time allowed for examination and thus rescind the contract. Authorities. The authorities cited sustain this proposition, that when a vendor sells goods of a specified quality, but not in existence, or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has a right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract.

“The jury has found that the iron was not of the quality which the contract required, and on that ground, the defendant in error, at the first opportunity, rejected it, as he had a right to do. His suit to recover the price was therefore well brought”.

In the above case the plaintiff “brought his suit to recover from the defendants, Thomas X Pope and James E. Pope, now the plaintiffs in error, the sum of $17,840, the price of the 500 tons of pig iron, which he alleged he bought from them and paid for, but which he refused to accept because it was not of the quality which the defendants had agreed to furnish”. See also 5 Elliot on Contracts, (p. 1152; Copper vs. Scott, 120 N. W. 630.

Delivery to the purchaser is not synonymous with acceptance by him. McLane vs. His Creditors, 47 La. Ann. 140, 16 So. 764.

A purchaser is entitled to a reasonable delay after delivery before acceptance. McLane vs. His Creditors, 47 La. Ann. 134, 16 So. 764.

To the same effect are the rules of the Sugar Exchange, under which the sale in this case was made.

Rule 2 reads as follows:

“All purchases or sales shall be final, except under the following circumstances: 1st and 2nd; irregularity of any kind not shown in sample.”
3rd: “Goods not being equal to sample or description”.

The second reason is that Article 2521 does not apply where the articles sold are contained in boxes, bags, barrels or packages, which must be opened to permit inspection and discovery of defects.

Williams vs. Miller, 9 La. 134.

Huntington vs. Lowe, 2 La. Ann. 379.

Richards & Alfred vs. Burke, 7 La. Ann. 242.

Hossier Realty Co. vs. Caddo Cotton Oil Co., 136 La. 328, 67 So. 20.

“Where the plaintiff purchased the (potatoes in barrels and shipped'them to Shreveport and on opening the barrels there, the potatoes were found to be in a rapidly decaying condition, it was held that the plaintiff could rescind the sale without offering to return them.” Richards & Alford vs. Burke, 7 La. Ann. 242.

In this case the sugar as sold was contained in 280 barrels, from which it would have been necessary to remove the heads to make an inspection. This is certainly not the operation mentioned in Article 2521 which provides only for a “simple inspection”.

The plaintiffs then filed a supplemental petition. They alleged that the discrepancy in weights existed at the time the sugar was weighed by defendants and delivered on the plantation for the reason that defendants’ scales were out of order; that delivery of said sugar was not made at the plantation, and that the plaintiffs had no opportunity to inspect said sugar until it arrived in Chicago; that either the return of the sugar to Louisiana, or the storing of the same in Chicago instead of selling it to Armour and Co. would have resulted in greater loss because of freight, demurrage, storage and other charges, and because said sugar could not have been sold for a larger price.

The defendants admitted that they were members of the Louisiana Sugar and Rice Exchange, that on July 22nd, 1921, through their broker, James D’Aquin, they offered for sale certain low grade sugars; they admitted that the. plaintiffs purchased two carloads of sugar from a sample exhibited at the New Orleans Sugar Exchange by defendants’ broker for the price of three and one-quarter cents per pound F. O. B. cars at defendants’ factory; that a small portion of the sugars was not manufactured at the time of the sale, but was manufactured shortly thereafter, and that plaintiff could have inspected the sugars before shipment had it so desired; they admit that the sale was made according to the rules of the Sugar Exchange but deny that the rules or the law permit the rejection of sugars after they have been received and paid for; they admit that the sugar was to be weighed and delivered on the plantation, the plantation weights to govern; they admit the shipping instructions; they admit that they refused to send a representative to Chicago to inspect the sugar, because the sugar having been sold and delivered and accepted on the plantation and paid for, the defendants were without further interest in the matter; they aver that if the sugar showed any depreciation in transit it was due to the extreme heat and because the sugars were soft and were sold as such; they admit that the sugars were paid for when delivered at plantation and therefore before they reached Chicago; they denied all the other allegations of the original and supplemental petition.

There was judgment in favor of defendants, dismissing plaintiff's demand.

The reasons for judgment were, in part, that “this sugar was shipped to Chicago in the hot season of the year, and. it being a very low grade sugar, the evidence shows that it would necessarily deteriorate. The plaintiff did not see fit to reject the sugar but effected his own settlement with the consignee, and under all these circumstances, I think there should be judgment for the defendant”.

The plaintiffs appealed.

As stated above, the sole question in this case is whether the sugar sold to the plaintiffs was delivered by the defendants on the Cypremort plantation in a condition equal to that of the sample on the faith of which the plaintiffs purchased it.

If it was not, it was immaterial whether the inferior quality of the sugar was discovered after delivery or after payment; such is the law of Louisiana.

When the warranty against defects which is of the nature of contracts of sale of movables fails the purchaser has two remedies. If the defects are such as to render the things sold absolutely useless or their use so inconvenient that it must be supposed that the buyer would not have purchased them, the buyer may demand the avoidance or rescission of the sale which our Code denominates as redhibition or the right of return. C. C. 2520 (2496).

If on the other hand the defects are such as to render the things sold useless or merely to diminish their value, or when the qualities which they have been declared to possess are wanting but are not of sufficient importance to induce the buyer to demand a ’redhibition and then “the buyer may limit his demand to the reduction of the price and retain the things sold at his option.” C. C. 2541 (2519).

This is the action “quanti minoris” or in reduction of the price. This action is favored by the courts. 2 La. 471.

Therefore, the plaintiffs lost none of their rights by retaining the sugar.

A buyer who has sold the thing bought may still claim a dimunition of the price.

Brown vs. Duplantier, 1 Mart. N. S. 317.

George vs. Shreveport Cotton Oil Co., 114 La. 503, 38 So. 432.

State vs. Casimere, 43 La. Ann. 446, 9 So. 438.

City of New Orleans vs. Firemen’s Charitable Assn., 43 La. Ann. 450, 9 So. 486.

State vs. Ragan, 125 La. 72, 51 So. 89.

Peterkin vs. Martin, 30 La. Ann. 897.

We have seen the sample exhibited by the defendants to the plaintiffs on the Sugar Exchange. It was contained in a glass jar and was almost dry and of the color of light chocolate. We have seen samples of the sugar shipped in barrels by the defendants to Armour and Co. in Chicago, and the samples by the latter sent to the plaintiffs in this case. The samples were contained in almost air-tight tin cans and were wet, soft, sticky, of the consistence of. cuite and dark in color, almost black. Neither'in substance, quality, or col- or, did they resemble the sample exhibited in the Sugar Exchange.

The defendants say that the change was operated by exposure to heat in the hot cars in their trip from the plantation to Chicago. The barrels were shipped from the plantation on July 31st, 1921, and were delivered in Chicago on August 6th and 8th, 1921, a delay of eight days only.

The exception of no cause of action was based upon the ground that the sugars had been delivered and paid for and hence plaintiff’s claim was too late.

This exception is answered and refuted by the case of Pope vs. Allis, 115 U. S. 371, and Louisiana cases quoted above.

Henderson Barkley, president of plaintiff company, testified that Mr. D’Aquin, representative of the defendants on the Sugar Exchange, exhibited to him and another representative of the firm a sample of the Cypremort plantation sugars, which was then partly manufactured, and of which there would be 200 to 250 barrels like the sample; the price agreed on was 3% cents at plantation; it was worth 3% cents in Chicago plus freight; the samples of the sugar sent from Chicago were practically unmerchantable; they sold it to Armour and Co. at 2% cents, which was a fair price; low grade sugars are usually packed in 300-pound bags; but it was impossible in this case because the sugars would have leaked through the bags; low grade sugars are always made and shipped in hot weather; never had an experience like this before; he was a sugar planter for many years and a sugar broker for the last twelve years; they paid for the sugar before it arrived in Chicago, and Armour and Co. (paid for it before they received it, both before they knew of the condition of the sugar; he asked the defendant to have representatives in Chicago examine the sugars or to have the sugars returned here, both of which they declined; he paid Armour and Co. $1238; Mr. Burguieres told him there was something wrong with his scales, he did not have the sugar inspected at the plantation, there was no comparison between the samples returned to him by Armour and Co. and the original sample on which he purchased; one. or two lots compared fairly well; with others there was no comparison; some of them did not show grain and looked like “mass cuite”; none of them were up to sample; they were of lower grade; if he had not sold the sugar it would have continued leaking and they would have had less sugar on hand; he has the samples sent him by Armour and Co. from Chicago; they are closed up and sealed and put in storage; he showed them to several witnesses; he has not seen them since; he received them two years ago, in August, 1921; samples are taken from a portion of the barrels only; soft sugars in barrels will settle and the molasses will go to the bottom; these sugars were a low grade, third, soft sugars; the Burguieres third sugars were of a low grade; he could have sent a man out to the plantation to examine the sugar, but he did not buy it that way; he bought the sugar equal to sample shown him; the defendants did not know to whom he was offering the sugar; he has handled low grade sugars throughout the summer months and they did not deteriorate in summer like these sugars; freshly-made sugars should show no deterioration in moving from New Orleans to Chicago in July and August at a temperature of 94 and 96 in ten days; he handled other low grade sugars in those months and they' did not deteriorate; never heard of using refrigerator cars for low grade sugars; at this stage the witness produces the bottle sample upon which he purchased and 20 cans received from Armour and Co. containing samples, of the sugars received by them at Chicago; these samples are not up to the first sample in the bottle or jar; masse cuite is sugar and molasses before the molasses is dried out.

E. A. Rainold, a sugar broker for the last thirty years, testified; the plaintiff showed them all the samples; the the sample they bought the sugar on and samples sent them by Armour & Co.; that was in August, 1921; some were of a very inferior grade and others a little better, but none as good as the original sample; and would not be accepted; the sugar of the sample was worth 3% cents; that in cans was very inferior and 2% was a very fair value for it; if the sugars shipped to Chicago in July had been like the original sample they would not have deteriorated like the samples sent from Chicago in August; he has shipped much sugar in the summer months; it is customary to ship sugar of that grade in bags of 320 pounds; the custom is to sample 10% of the barrels unless there is some trouble with the shipment when all should be sampled; he would be surprised to know that anybody had shipped out such sugar as is found in four of these cans; the deterioration of the sample in the bottle would be the same as in the cans; all sugar in the same shipment should show the same deterioration; if some cans show a greater deterioration than others, the sugar must have been shipped that way from the plantation.

Emmet S. Barry, connected with Fenner & Beane, has been in sugar business for twenty-two years testified; in August, 1921, he was shown the sample on which the plaintiff bought sugars from the defendants; he was also shown samples returned from Chicago by Armour & Co.; they were an entirely different character of sugar; one was like masse-cuite and the other was regular ordinary second sugar.

H. Barkley, recalled, testified that the samples exhibited on the trial were the same that he received from Armour; when received they were unpacked in his presence, and repacked and sealed also in his presence and sent to cold storage with the original sample in a glass jar.

W. M. Mahoney, assistant superintendent of the mincemeat department of Armour & Co., said he saw the sugar received by Armour & Co. from the plaintiffs; he inspected it on August 8, 1921; before the cars were opened and they noticed a black syrup running out of the cars from beneath the doors, and after opening the cars ' they found the sugar all over the floor of the car, and a number of the barrels only half or a quarter full; the sugar had an ' exceptionally strong molasses flavor which rendered it unfit for mincemeat purposes; he took from each car ten one-and-a-half-pound samples which were packed in one large wooden box on August 16, 1921, and shipped to plaintiffs on August 19 by the American Express Co.; the sugar was weighed under his supervision by one of their checkers, and was also weighed by the official weighmaster of the Chicago Board of Trade; which gave practically the same weight; he sampled the sugar about five inches down in the barrel.

F. M. Walters, buyer of supplies for Armour & Co., gives the same testimony relative to the quality of the sugar; the plaintiffs then wired asking them as a personal favor to advise them the best price at which they could possibly use the sugar on the basis of receiving weights; he took the matter up with their general superintendent and others, and they finally decided they could use the sugar for mincemeat purposes by mixing it with some Java white sugar, a much higher priced and higher grade of sugar, so as to tone down the strong flavor. They consequently offered two and a half cents a pound shipping point for the sugar on actual receiving weights * * * John Barkley & Co. accepted their offer”; the price was fair considering the quality of the sugar; the sugar was not bought by them on sample; John Barkley followed their “own custom in shipping cars to their own order”, notify; the drafts were paid before the cars were opened.

C. E. Holtsberg, assistant auditor of Armour & Co., said that the cars were delivered to Armour & Co. on August 7 and 9 and set for unloading on the 8th and 9th; the drafts were paid August 6, 1921; after deducting the loss of weight and charges the claim of Armour & Co. against the plaintiffs was $1238.00, which they paid.

John Ebben, deputy weighmaster for the Chicago Board of Trade, weighed the sugar; a good many of the barrels were leaking, and a majority of them were short weight; as the sugar was unloaded by the Armour & Co. employees the barrels would be placed on the scales and weighed.

On behalf of the defendant the following witnesses testified;

James D’Aquin, sugar broker of the defendants, who sold the- sugar to plaintiffs. He sola the sugars on the sample furnished by the defendants; if the sugar is low grade like this sugar, there is always a little molasses running towards the part of the barrel that is down on the floor; he would not ship sugars of the sample he sold for mincemeat purposes unless he first sent the buyer a sample; there is some difference between these Chicago samples and the one on which he sold, but these samples may have been taken from the foot of a barrel; the proper way to sample is to run a gimlet at both ends, from every barrel; he has seen some Cypremort sugar running in the barrels two or three inches; the understanding was that the sugar should he like the sample; there may he a certain amount of deterioration in ten days in hot weather, in some of the barrels; Burguiere sugars are recognized as a good low-grade sugar with a fair flavor.

Ernest A. Burguieres, treasurer of defendant corporation, testified that his office is in New Orleans and that, he attends to all the city business; samples of these low-grade sugars were placed by him in the Exchange on the table of his broker D’Aquin; Mr. Barkley came over to the table and made a pyramid of the sugar with his hand and offered 3% cents for the sugar F.O.B. plantation; he accepted the offer, to be paid for five days from the date of the bill of lading; he sent the shipping instructions to his brother Denis on the plantation; his brother said to him over the phone: “These sugars cannot be used for mincemeat”. His answer that he could not inquire of the buyer what he was going to do with the sugar and to ship it according to instructions to Armour & Co. mincemeat department; the sugar was shipped and paid for within five days; about five or six days after they were paid for, Barkley stated to him that he was having trouble with his buyer in Chicago; he told the plaintiffs that if there was any difference in his scales he was willing to have his scales checked; he expected the sugar to leak and would have been very much astonished if it had not leaked; it is customary to ship sugar in the hot summer month to Chicago and even more distant points; he would not take the risk of selling sugar to send away; he sells it F.O.B. plantation; the buyer takes the risk thence; they have sold sugar on the same conditions as these samples; they have never had any returned to them; this is the first complaint; the sugar that he sent to Chicago was the last of the season; their low-grade sugars are mincemeat sugars; they never made any suggestion to adjust the matter; they refused all suggestions made by plaintiffs; the plaintiffs suggested to him to send a representative to Chicago, or to appoint someone there, or to bring the sugars down to New Orleans, all of which he declined; it was not fair to keep the sale sample in a bottle and to put the Armour samples in a can; some of the later samples may be taken off from the floor of the car, and do not represent the sugar he sold, nor the sugar in the car; none of the samples in the cans ' in their present condition equal the sample in the bottle; they are all in different degrees of inferiority; but they would have been a delivery by those accustomed to buy their low-grade sugars; these samples in these cans from Chicago compared with the sample put in the bottle, are not the same; when plaintiffs showed him these samples he did not feel he had anything to do with them.

Oscar Garic, general clerk for the defendant at Louisa since 1905, said he weighed the sugar on the plantation; the scales were correct; he took samples from about 150 barrels; some sugar was manufactured afterwards, about 130 barrels; he sent the sample that he took to New Orleans; the 130 barrels that were made afterwards were the same; the scales have been in use one year; he took the samples five inches from the top; he knows nothing about the quality in sugar; it was a dark sugar.

Denis Burguieres is president of thé defendant company and operates the factory; all the sugars were of the same grade; it was the final run of the season; the masse-cuite is put in centrifugals and turned around until all the molasses is out; when all the molasses' is out the sugar is dumped into sacks or barrels; he is the sugar boiler himself; there was no difference in the sugar in any of the barrels; there is no advantage in running centrifugals after a run for a certain time; further running would be useless; the scales were in perfect condition; when he got shipping instructions, he told his brother the sugar would not do for mincemeat; it was not good for human consumption; no low-grade sugar could hold up from the plantation to Chicago; it'would leak and run; the factory runs night' and day; when a barrel stands up the moisture on the sugar is precipitated to the bottom a few inches.

A striking feature in the testimony is that Denis Burguieres of Cypremort Plantation did not see the sample of the sugar upon which the plaintiffs bought; the samples had been made by Oscar Garic; nor did Ernest Burguieres of the city of New Orleans see the sugar that was shipped from Cypremort. The result was that neither one nor the other was in a position to say that the sugar shipped by the defendants was the same quality as that in the sample, on the faith of which the plaintiffs purchased.

The disinterested evidence is overwhelming, and the defendants themselves testify that the samples sent to Chicago in cans and exhibited on the trial of this case were inferior in quality to the sample in the bottle exhibited at the Exchange by which the plaintiffs bought. But even if the testimony could leave any doubt, the samples themselves speak louder than words. “Dum silent, clamant.”

Two reasons are given by the defendant for this difference. One is that time and the weather have affected the sugar in the cans.

If that be true, then the sugar in the bottle should have been affected likewise, and yet it remained the same. Another is that the heat has caused the sugar in the barrels to leak and run at the bottom and to deteriorate. But if the sugar in the barrels had leaked, what remained in them should have been drier and of a better quality, as the heat is said to have done for them what the centrifugal is expected to do, to drive the molasses out. But we do not believe that either time or heat, from the plantation to Chicago, a period of ten or fifteen days, could have produced in the sugar the palpable deterioration and difference which existed in the sugar upon its arrival in Chicago as compared with the sample at the Sugar Exchange. It is in evidence that the latter was of a quality much superior. Sugars of inferior grade, seconds and thirds, are made in summer and sold and shipped in summer without substantial deterioration; if the sugar in this case arrived in Chicago in the condition ^ described by the witnesses and shown by the samples, it is because of its initial inferiority in quality at the time and at the point of shipment. But having received it and paid for it without previous inspection, plaintiffs are entitled to claim and recover a diminution in price corresponding to the diminution in value. In this and other respects plaintiffs have made out a clear case.

The cases of Rocchi vs. Schluzabacher, 33 La. Ann. 1305, and McNeil vs. Martin, 160 La. 443, 107 So. 299, relied on by defendants are not in point. In the Rooehi case the sale was not by sample, and the buyer had, previous to the sale, inspected the barrels of lard through his broker, by all the means known to the trade. In the McNeil case the sale of second sugars was made to him on July 15 and the sugars put in warehouse; McNeil sold the sugar on October 26, three and a half months later, when it was inspected and discovered to be “unfit for use”. The court found that McNeil had not inspected the sugar within a reasonable time and for that reason denied him relief. The court remarked:

“But the testimony of the owners of the St. Delphine Plantation, on which the sugar was made and from whom it was bought by defendant, establishes that at the time it was shipped it was merchantable, wholesome, good, second sugar, and fully up to the samples furnished plaintiff at the time the sugar was sold.”

No such testimony exists in this case, and the defects were discovered within ten days of the sale as soon as the barrels were delivered and as soon as an inspection became possible.

It is therefore ordered that the judgment appealed from be reversed and annulled, and it is now ordered that the defendants, the J. M. Burguieres Co., Ltd., be condemned to pay to the plaintiffs herein, John Barkley & Co., Ltd., the sum of one thousand two hundred and thirty-eight dollars with five per cent per annum interest from August 19, 1921, till paid, and all costs.


text:
    No. 10,837
    Orleans
    SCHWAB v. HIRSCH
    (May 9, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial court on matters of fact where not manifestly erroneous are affirmed.
    Appeal from First City Court, Section “C”. Hon. Wm. V. Seeber, Judge.
    Action by Rudolph Schwab, plaintiff and appellee, against Harry Hirsch, defendant and appellant.
    There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    Thos. J. Dobbins, of New Orleans, attorney for plaintiff, appellee.
    L. R. Hoover, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The question presented by this appeal is whether or not the plaintiff was the procuring cause in the leasing of defendant’s property, for which he claims a commission.

The court, a qua, resolved the question in plaintiff’s favor. A careful reading of the record fails to show manifest error.. The judgment appealed from is affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    BLANCHARD v. MARQUETTE BROTHERS ET AL
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Fraudulent Conveyances — Par. 26, 74.
    The sale of a, business in bulk, without complying with Section 4 of Act 114 of 1912, by supplying a written list of creditors with the amount of indebtedness due to each arid with knowledge of the purchaser of the insolvent condition of the seller; is a fraudulent contract and can be annulled under Articles 1970 to 1977 of the Civil Code.
    Appeal from the Parish of Assumption. Hon. Sam A. LeBlanc, Judge.
    Action by Alphonse B. Blanchard against Marquette Brothers et al.
    There was. judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Gilbert & Gianelloni, of Napoleonville, attorneys for plaintiff, appellee.
    C. C. Weber, of Donaldsonville, and A. N. Simmons, of Napoleonville, attorneys for defendant, appellant.
   LECHE, J.

The defendant, a commercial firm composed of Martin and Adolph Marquette, conducted a meat market and was engaged in the butcher business in the town of Napoleonville. It was indebted to plaintiff in the sum of Three hundred twenty and 05-100 dollars. Plaintiff instituted the present suit for the recovery of his claim and at the same time alleging that defendant was insolvent, had made a fraudulent sale of its property to one Felix Acosta, he obtained a writ of attachment under which the property was seized and attached.

The judgment of the District Court is in favor of plaintiff, revokes the sale made to Acosta and orders that the property seized be sold to satisfy plaintiff’s claim. From that judgment, Acosta alone has appealed.

The only issues involved on this appeal are whether defendant at the time it sold its property to Acosta, was insolvent, and whether Acosta was aware of the fact that defendant was insolvent. The testimony in the record is clear to the effect that both of these questions should be answered in the affirmative.

Defendant firm owned the outfit and the paraphernalia necessary to operate its business in Napoleonville and it also owned a tract of land situated in the Parish of Assumption. The land was mortgaged for $1300.00, represented by two mortgages, the first for $800.00 and the second for $500.00. Mri Philip H. Gilbert, president of the Brink of Assumption, holder of the second mortgage, testifies that when his bank was consolidated with the Bank of Napoleonville, the $500.00 mortgage note was, a short time previously appraised below its face value in making the merger, for the reason that it was not believed that the property would realize enough to pay both mortgages.

The act of sale to Acosta was made in consideration of $1,605.64, accepted as full value for the machinery and outfit of the meat market and for horses and carts used in the butcher business. When the sale was passed, defendant owed Acosta $1826.74, and it also owed plaintiff $320.05, it owed Jos. Barbera $284.83, and it owed Swift & Co. $334.56.

The manager of defendant firm frankly admits that he sold to Acosta because he owed him the most, meaning the largest debt. In other words, he admits that the sale was made in order to prefer Acosta over his other creditors. He knew the firm was insolvent.

Acosta had been dealing with the defendant since May 4, 1925, and had sold cattle to it, at various times, the prices whereof totaled $4717.24, of which amount defendant had paid $2890.50, leaving the aforesaid balance due qf $1826.74, when the sale was made on May 14, 1926. He acknowledges that some of the checks by which he was paid had to be held back, and that the last check he received from defendant never was paid at all.

One of the circumstances in the act of sale determinative of the issues herein, is to the effect that the members of the firm in making this sale of their business in bulk to Acosta, swore that the property conveyed was not affected with any vendor’s lien or privilege of any kind, save taxes. They did not furnish as required by Section 4 of Act 114 of 1912, page 136, a written list of their creditors with the amount of indebtedness due to each.

Again Acosta says in the first part of his testimony that he did not care to buy the business of defendant, that he knew defendant owed several hundred dollars to other persons and he acknowledges (Rec. p. 13) that he never did believe that defendant was in a solvent condition.

We believe the proof fully sustains plaintiff’s cause of action. C. C. 1970-1977.

For these reasons the judgment appealed from is affirmed.


text:
    No. --
    First Circuit
    BARBERA v. MARQUETTE BROTHERS ET AL
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)
    (See Blanchard v. Marquette Brothers et al, ported on Page 49.)
   LECHE, J.

The issues in this case are the same as in Blanchard vs. the same defendant, this day decided.

For the reasons therein stated, the judgment on appeal in this case is affirmed.


text:
    No. -
    First Circuit
    SWIFT & CO v. MARQUETTE BROS. ET AL
    (June 7, 1927. Opinion anil Decree.)
    (June 28, 1927. Rehearing Refused.)
    (See Blanchard v. Marquette Brothers et al, ported on Page 49.)
   LECHE, J.

The issues in this case are the same as in Blanchard vs. the same defendant, this day decided.

For the reasons therein stated, the judgment on appeal in this case is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    POWE ET ALS v. MORGAN'S LA. AND TEX. R. R. & S. S. CO.
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 38, 40, 59, 69.
    An alternative plea presented in the answer cannot be permitted to function as an exception to ithe capacity of plaintiff to stand in judgment, which exception must be pleaded in limine litis under Article 333 of the Code of Practice.
    2. Louisiana Digest — Death by Wrongful Act — Par. 6.
    Where the surviving wife was separated from her husband at the time of his death, although an interchange of letters shows the continued existence of affection between them, there being no positive evidence to show that she was living with another at the time, she is entitled to recover damages for the wrongful death of her husband.
    3. Louisiana Digest — Carriers of Passengers and Goods — Par. 27, 35.
    Where the testimony shows that a railway collision accident was caused by the absolute disregard by the engineer of orders, the railway company can be held liable for the death of a passenger.
    4. Louisiana Digest — Insane and Insane Asylums.
    An engineer, who, having disobeyed train orders, jumps to save his life, is not temporarily or permanently insane because he responded to the instinct of self-preservation.
    5. Louisiana Digest — Carriers of Passengers and Goods — Par. 44; Death by Wrongful Act — Par. 23.
    Fifteen Hundred Dollars for the wife and Three Thousand Dollars each for the two minors is sufficient quantum of damages for the death of the husband and father in a railroad accident, much discretion being vested in the trial judge in cases of this character.
    ON REHEARING'
    6. Louisiana Digest — Death by Wrongful Act — Par. 26.
    Where the widow has not qualified as tutrix of her minor children in a suit for the death >of her husband, the interests of the minors and the defendant will be protected by permitting the defend- . ant to deposit the money due the minors with the court, rule the parties into court and be acquitted of further liability.
    Aippeal from the Parish of St. Mary.
    Action by Mrs. Sallie Hundley Powe et als against Morgan’s L. & T. R. R. & S. S. Company.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    James R. Parkerson and Wilbur P. Kramer, of Franklin, and Jacob Allen Cohen, of Chicago, attorneys for plaintiffs, appellees.
    Brumby & Bauer, of Franklin, attorneys for defendant, appellant.
   MOUTON, J.

Lynch Powe, while a passenger on one of defendant’s trains, was killed in a headon collision at or near Ricohoc Switch in the Parish of St. Mary, on March 22, 1925.

This suit is brought by his surviving spouse, individually, and as the legal guardian of their two minors, Leotice and Ora-my Powe, for the recovery against defendant company of the total sum of $25,000.00 in damages.

In its answer to the demand, defendant excepts to plaintiff’s petition because it discloses no right and no cause of action, and alleges that in the event said exceptions be overruled, then, in the alternative answers the demand of the plaintiff.

The first contention of the defendant is that plaintiff by way of caption to her petition described herself as “legal guardian” of the minors, Oramy and Leotice Powe; that she nowhere alleges that she was the legal guardian nor how she has been appointed. In the caption of her petition Sallie Hundley says, she appears “individually and as legal guardian of the minors, Leotice Powe and Oramy Powe”.

In paragraph one of her petition she alleges that defendant company is indebted to her “individually and as legal guardian of said minors” in the sum of $25,000.00.

This averment in paragraph one that she was the legal guardian of these minors was alleged as a fact and was sufficient with the captain to show in what capacity she came into court. It is true she does not say how she was appointed but the allegation of a legal guardianship infers as a necessary consequence that the appointment was by lawful authority.

Counsel for defendant next contend that the exception of no right of action is in the nature of or is equivalent to one directed against the capacity of Sallie Hundley to institute this suit for the minors.

C. P. Article 108 reads: “Minors, persons interdicted or absent, can not sue, except through the intervention or with the assistance of their tutors or curators”. It is clear from the language of that article that it is the minor who sues, but does so through the intervention of his tutor. In other words, that the right of action is in the minor, but that it is exercised for him on account of his minority, by his tutor who appears in a representative capacity. The same rule should apply to a guardian residing out of the state. The fact is that the Supreme Court in Koepping vs. Monteleone, 143 La. 353, 78 South. 590, made no distinction in the application of the rule governing in such cases, between suits brought by guardians or tutors. If before answering, defendant had excepted to the petition, on the ground that plaintiff was without right or capacity to represent the minors the question would have been presented in proper form. Such a plea can not be considered as being properly urged under an exception of no right of action. Defendant’s counsel evidently realized the difficulty of the situation and we presume, for that reason, presented it as an alternative plea. Such an exception is dilatory in character, and under provisions of Article 333, C. P., must be filed in limine litis. This article goes a little further than that and says, positively, in the concluding clause: “Nor shall such exceptions hereafter be" allowed in any answer in any cause”. It was presented here in the answer in the teeth of this prohibitory provision of that article. By presenting the exception in the innocent appearance of an alternative, defendant attempted probably to escape the prohibition referred to in Article 333, C. P. It is an axiom, however, that a party will not be permitted to do indirectly, that which he can not do directly. This alternative plea, though skillfully presented in the answer can not be permitted to function as an exception to the capacity of plaintiff to stand in judgment which must be pleaded in limine.

C. P. 333.

Lafon’s Executors vs. Made Riviere, 1 Mart. (N. S.) 130.

Heirs of Kempe vs. Hunt, 4 La. 477.

Gay vs. Ardry, 14 La. 288.

Dyer & Stevenson vs. Drew, 14 La. Ann. 657.

Cure vs. Parte, 18 La. Ann. 206.

State of Louisiana vs. Redding, 21 La. Ann. 188.

Lucy Beard and Husband vs. Duralde, Jr., 32 La. Ann. 284.

Adams & Co. vs. Coons, et al, 37 La. Ann. 305.

Reisz vs. K. C. S. R. Co., 148 La. 929, 88 South. 120.

Koepping et al vs. Monteleone, 143 La. 353, 78 South. 590.

By failing to plead to the capacity of plaintiff before answering, exception to the right of plaintiff to stand in judgment for the minors has been waived by defendant.

Defendant, on the merits, contends, that plaintiff had deserted and left her husband, Lynch Powe, and was living separate and apart from him, that she had been unfaithful to her marriage vows, and personally was not entitled to damages for his death.

The trial judge, in passing on this question, said:

“The evidence satisfies me that though the plaintiff was living separate and apart from her said husband, that there still remained the relation of husband and wife with its correlative duties. It is in evidence that the plaintiff, her husband and two children, moved from the State of Mississippi to Chicago. That the husband remained in Chicago with plaintiff as husband and wife for six or seven weeks, returning South due to his health, and leaving his wife and children with her brother, who resided in Chicago; this in September, 1923. That from that time up until his death he communicated with plaintiff approximately every two weeks, sending her money on each occasion for her and his children’s support. Though these alleged letters are not made part of the record, having been destroyed, her statement uncontradicted by any other witness or circumstances, must be accepted as true. The interchange of letters between .husband and wife never results in their retention by either spouse, they being customarily destroyed on receipt.
“It is true that the plaintiff may have been guilty of indiscretions, but such indiscretions can be considered as mostly characteristic of the colored race. There is no positive testimony to convince me that she had abandoned her husband and was living as the concubine of another. I am unable to' deduce that from the evidence, more so in view of the testimony showing the contrary. Such indiscretions which she may have been guilty of can not, in the eyes of the law, defeat her from her just claims. There still existed between the plaintiff and her husband -the relation of husband and wife, and even though separated, an interchange of letters showing the continued existence of affection between them”.

In the foregoing excerpt from the opinion of the District Judge, we find a fair analysis of the evidence on the contention of the defendant in reference to the alleged abandonment of deceased by plaintiff, his surviving wife, and a correct application of the rule of law governing in cases of this character, and which entitles plaintiff to recover in damages.

The next contention of the defendant is that it was not negligent when the collision occurred and can not be held responsible.

On this subject, the District Judge said:

“The evidence discloses that the husband of plaintiff — father of the minor children —had purchased a ticket and that he was a passenger on train No. 12. It is in evidence that the crew of train No. 12 were given specific orders to enter the switch known as ‘Ricohoc Switch,’ so as to allow train No. 109, a through passage on defendant's main track. That on train No. 12 reaching • the mile board one mile west of the west end of Rihohoc switch, that the engineer blew the whistle. That on passing the water tank near Ricohoc Switch that the engineer was warned by the fireman of his orders to stop. That in spite of said warning said engineer continued at the same rate of speed, past the east end of the switch where the collision occurred with train No. 109 traveling westward.
“The evidence satisfies me that the sole cause of the accident was a total and absolute disregard of the engineer on train No. 12, on which plaintiff’s husband was a passenger, of his specific orders. The testimony shows that had he obeyed his orders, and entered the switch as he should have done, the collision would not have occurred. I cannot consider that such an act can be traced to a lapse of memory, because the record conclusively shows that the engineer up to the point of the collision responded to the various warnings issued by the conductor; and answered to the one in charge that he was in control of the train and mindful of his orders. The violation of orders under such conditions constitutes a reckless, disregard of the rights of passengers, and for which defendants must stand responsible.”

This finding of fact below on this part of the defense meets with our entire approval, also the conclusions of law holding defendant company liable for this reckless conduct of the engineer. Here, it is strenuously urged that the engineer had long been in the service of defendant company, was entirely reliable, and that his recklessness on the occasion mentioned can be ascribed only as a result of a moment of temporary insanity. The proof is that when the enginee'r passed the switch where he had been ordered to stop, came within sight of the other train, and saw the imminent danger of collision, that he leaped from his cabin to save his life. The insane, temporarily or permanently so, are usually unconscious or defiant of danger. The promptness with which the engineer responded to the instincts of self-preservation rather denotes that he was sane and not insane. It certainly does not sustain the contention of temporary insanity, the only plausible plea under which the defendant company could expect to escape liability.

The defendant claims that the award of damages decreed by the District Judge is excessive.

Plaintiff, for herself, asks $10,000.00 for loss of support and maintenance, and $2500.00 for distress and mental suffering. Her husband was thirty-one years of age at the time of his death; was getting a weekly wage of $16.80, and every two weeks sent plaintiff $8.00 or $10.00 while he was South where he had returned for his health. The judge allowed plaintiff $1500.00, individually. This amount is not excessive.

One of the minors is five, and the other, six. He gave each minor $3000.00 in damages. The amounts allowed these minors, we consider, fair for the loss of their father, thus depriving them of his support so early in life.

Much discretion is vested in trial judges in fixing the amount of damages in cases of this character. C. C. 1934; Kent vs. Baton Rouge Electric Co., 154 La. 142, 97 South. 344. The evidence does not indicate that he has abused his discretion in that respect to justify us in reducing the award as asked by defendant or to increase it for plaintiff, individually, as prayed for by her.

The final contention of the defendant is that the judgment bears interest from judicial demand, though not awarded by the decree.

The plaintiff prayed for legal interest from judicial demand. Under Act 206, 1916, plaintiff had an absolute right to recover this interest. Caldwell vs. City of Shreveport, 150 La. 465, 90 South. 763. It was properly included in the judgment. There is no merit in this contention.

We find no error in the judgment appealed from and which is therefore affirmed with cost.

Per Curiam:—

The failure of defendant company to file an exception in limine to the capacity of plaintiff to sue constituted a waiver as was held in our original opinion.

To waive is to give up, to abandon, relinquish. Caufield vs. Finnegan, 114 Ala. 30, 48, 21 South. 484. Bouvier. When one has waived any right, whether conferred by law or contract, he is precluded from claiming anything by reason of it afterwards. Smiley vs. Barker, 83 Fed. 684, 687; 28 C. C. A. 9. It is therefore very doubtful if defendant, on the merits, could have opened the issue involving the qualifications of plaintiffs to sue, having failed to urge this defense by exception in limine. In order to avoid, however, any further discussion of this question, it is therefore ordered that the District Judge take such precautions as he may deem necessary or proper to protect the interest of the minors and to acquit the defendant of further liability before permitting the plaintiffs to collect or execute the. judgment in favor of the minors. And to enforce that protection the defendant may deposit the sum due the minors in the registry of the court, rule the parties into court and be acquitted of further liability. Badie vs. Columbia Brewing Company, 142 La. 861, 77 South. 768.