text:
    No. 3293
    First Circuit
    PRINGLE v. COOKSTON, ET AL.
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Acts—Par. 20’, 23, 31.
    In the interpretation of a deed, the whole intent is to be taken from • the whole description, particular as well as general.
    Bender vs. Chew, 129 La. 849, 56 So. 1023.
    McKenzie vs. Dee, 10 Orleans App. 207.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by W. C. Pringle against W. C. Cookston et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellant.
    Eugene Beck, of Alexandria, attorney for defendants, appellees:
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, W. C. Pringle, sued defendant W. C. Cookston, and defendant First National Bank of Winnfield, Louisiana, to recover the sum of $500.00 deposited in escrow in said bank under an agreement in writing, dated March 6, 1926, between himself, Cookston, and one J. C. Davis, in words and figures as follows:

“Know all men by these presents, that the following contract and agreement is made and entered into this date, by and between J. C. Davis, hereinafter designated as party of the first part, W. C. Pringle, hereinafter designated as party of the second part, both residents of Rapides parish, Louisiana, and W. C. Cookston, a resident of Winn parish, Louisiana, and hereinafter designated as party of the third part, witnesseth: That the party of the first part agrees to selb and does by this act bargain, sell, convey and deliver unto the party of the second part, subject to the terms and conditions hereinafter stated, an undivided one-half interest in fee simple, of all the lands recovered m the hereinafter described property, situated in the parish of LaSalle, state of - Louisiana, to wit: SE% of SE% Sec. 27, NE% of NW% and W% of NW% Sec. 25, and lots 1 and 7 in Section 23, !Twp. 10 N. Range 1 East, and 80 lots and parcels of land in Sections 25 and 26, in Twp. 10 in town of Tullos; all in LaSalle parish, Louisiana.
“That for and in consideration of the hereinabove contract and agreement, the party of the second part has this day deposited in the First National Bank of Winnfield, Louisiana, a check for five hundred dollars, payable to the order of the party of the third part, for certain information revealed as to the discovery of unconveyed property which belongs to party of the first part. It being agreed that the unconveyed part of said property is not less than y2 acre, and party of the third part is to be paid at the rate of six hundred twenty dollars per acre.
“It is further agreed and understood by and between all parties hereto, that in the event said % acre of land is not recovered as belonging to the said J. C. Davis, then the five hundred dollars held in escrow at the First National Bank of Winnfield, La., shall be returned to the party of the second part, the parties hereto shall be then placed in the same condition as if this contract and agreement had never been made. But in the event said acreage is found, the said escrow agent shall deliver to the party of the third part the check for five hundred dollars, notwithstanding any other stipulation herein made.”

He further alleges that the information given to Davis and him by Cookston was to the effect that the father of Davis, Calvin Davis, deceased, had acquired from one A. S. Norrid during the year 1901 a certain tract of land in the W% of the NW% of Section 25 Township 10 North Range 1 East, in LaSalle Parish, Louisiana, and that in the subsequent sale of this property to one Tom Russell by the heirs of the deceased Calvin Davis all of the property so acquired by Calvin Davis was not included and that a portion of the property still belonged to the -heirs of Calvin Davis.

That acting upon the information imparted to them by Cookston pursuant to the agreement he and J. C. Davis made an investigation of the matter and resorted to litigation in an effort to recover the property and that the sole result of their efforts was the recovery of a small strip of ground in the W% of the NW% of Section 25 Township 10 North Range 1 East, thirty feet by three hundred eighteen feet and having an area of much less than half an acre.

The defendant First National Bank of JVinnfield answered that it was merely a stakeholder and asked to be protected as such.

Defendant Cookston answered that plaintiff, William C. Pringle, and James C. Davis own and have a legal, valid and merchantable title to eight-tenths of an acre of land, more or less, minutely described as beginning 30 feet south of the southwest corner of the land belonging to W. T. Bass in the Wy2 of the NW% of Section. 25 Township 10 North Range 1 East in LaSalle Parish, Louisiana, which point of beginning is on tile Missouri Pacific Railroad Company’s right-of-way, run thench north 30 feet to the said corner of Bass’ land; thence east on the south boundary line of Bass’ land 318 feet, thence south, sixteen degrees and forty-four minutes west, 184 feet, thence in a northwesterly direction to the point of beginning; as shown by plat of survey made, by Charles D. Evans, surveyor, filed for record on February 26, 1926, and recorded in Book L at page 592 of the records of the Parish of LaSalle, Louisiana, and that said tract of land was recovered by plaintiff and James C. Davis from information revealed to them by him pursuant to the agreement.

And he further alleged that in the litigation referred to in plaintiff’s petition no attempt was made to recover all of the above described property and that through error, negligence or fraud instead of suing for the land above described only a tract of thirty feet by three hundred eighteen feet was sued for.

And he prayed that plaintiff’s demands be rejected and that he have judgment against plaintiff decreeing him to be the owner of and entitled. to the $500.00 deposited in escrow in the First National Bank of Winnfield and directing the bank to pay over the same to him.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and decreeing defendant Cookston to be the owner and entitled to the $500.00 in the possession 'of the bank and ordering the bank to pay it to him, and fixing the fee of the expert surveyor who testified in the suit at $15.00 and taxing plaintiff with all costs.

From this judgment the plaintiff appealed.

OPINION

The map made by Charles D. Evans, surveyor, dated February 26, 1926, was filed in evidence and is relied on and referred to by both Pringle and Cookston as correctly showing the locus in quo.

Calvin Davis was the owner of a tract of land indicated on the map by the angles A, B, F, G, K. He acquired the property in two separate purchases from A. S. Norrid.

On October 25, 1921, Norrid sold him a tract described as follows:

“In the west half of northwest quarter section twenty-fiye township ten range one east and described as follows: commencing at the edge of right of way of the H. C. A. and N. Ry. at a point where land owned by B. F. Pendarvis joins said right of way, and running south 250 feet, or about that distance, to pasture fence; thence east 318 feet, along said line of fence; thence north, back to the line of Pendarvis, about 250 feet; thence west, along said line, back to said right of way, about 318 feet; making about two acres, more or less.”

This purchase is indicated on the plat referred to by the angles A, L, E, B.

On December 21, 1901, Norrid sold him a tract described as follows:

“the following described lots or parcels of land * * * being situated in west half of the northwest quarter section twenty-five township ten north range one east * * * also one lot of land adjoining the above described lot on the north, running north from said lots along the right of way of the Houston, Central and North Railroad three hundred and Lhirty-six yards, thence east one hundred and six yards, thence south three hundred and thirty-six yards hack to said lots, thence west one hundred and six yards to the right of way of said road * * * ”

This purchase is indicated on the plat referred to by the angles K, L, E, F, G.

On April 9, 1914, the heirs of Calvin Davis sold to Tom Russell a tract of land described as follows:

“West half of the northwest quarter of section twenty-five township ten north range one east, * * * also one lot of land adjoining the above described lot on the north, running north from said lot along the right of way of the Houston, Central and North railroad three hundred and thirty-six yards, thence east one hundred and six yards, thence south three hundred and thirty-six yards, back to the said lot; thence west one hundred and six yards to the right of way of said road * * * and being the same land purchased by Dr. Calvin from A. S. Norris on the 12th day of December, A. D. 1901, recorded in deed book No. 7 page 572 on January 2nd, 1904, * * * tj

No other sale was made by either Calvin Davis or his heirs of the land acquired by him in his two purchases from Norrid and unless the sale from the heirs to Russell conveyed all the land so acquired by Calvin Davis his heirs were the owners at the time of the execution of the contract herein sued on, of whatever of the land so acquired by Calvin Davis was not sold by them to Russell.

Pringle contends that the sale did convey to Russell all the land acquired by Davis from Norrid, with the exception of two hundred twenty-five one-thousandths (225/ 1000) of an acre recovered in the lawsuit mentioned in his petition and indicated on the map by the angles A, B, C, M.

His theory is that in construing that sale courses must control distances in the absence of natural monuments inconsistent with the courses. He points out that the starting point, K, is a natural monument, land not belonging to the vendors, and that the course “running north from said lot” would be construed to mean “northeasterly” even if there were not added, after the “running north” the modifying description “along the right of way of the Houston, Central and North railroad” which runs northeasterly and not north; that measuring three hundred thirty-six feet northeasterly along the eastern boundary of that right of way, the distance called for by the sale, the point M on the plat is reached, or the southern boundary of the 225/1000 acre above mentioned; that the next course and distance in the sale, “thence east one hundred and six yards,” must be construed to mean “due east,” or the line from M to C, which distance though not exactly one hundred six yards is approximately that, 316.96 feet; and that the next course and distance in the sale, “thence south three hundred and thirty-six yards” (counsel’s brief says southeast but the sale says south) means parallel to the western boundary or the right of way to point F on the plat, another natural monument. The distance from point C to point F, counsel says, is more than three hundred thirty-six yards, but that assuming point C to be the correct northeastern boundary, the distance must yield to point F, that being a natural boundary. The remaining boundary, the southern boundary, from F to K on the plat is not questioned.

We cannot adopt plaintiff’s contention.

The sale, concededly, is not clear, and in determining whether it was intended to pass title to all the land the heirs owned we must consider the instrument as a whole and in connection with other proved facts as shown by the record.

Evidently the heirs did not think so, for, as alleged by plaintiff, they sued for and recovered a part of the land, namely, the 225/1000 acre indicated by the angles A, B, C, M on the plat. Why they did not sue for the remaining 521/1000 acre embraced within the angles C, M, D does not appear.

The contract between Cookston and Pringle and Davis was entered into on March 6, 1926, and shortly thereafter, to-wit, on March 11, 1926, Pringle and Davis leased to one J. L. Ferguson for the purpose of mining for and extracting oil and gas therefrom, the very same tract of land which Cookston pointed out as belonging to the heirs of Calvin Davis and which plaintiff here contends they did not own. Evidently they then thought Cookston’s information good.

It is true that thereafter J. C. Davis obtained deeds to the land, one from Walter Hebert, on April 7, 1926, one from William T. Russell, on April 14, 1926, and one from F. J. Miles, on July 10, 1926.

In the' contract between Pringle and Davis and Cookston the value of the land is fixed at $620.00 an acre.

The sale from Russell to Davis expressly excludes warranty and the price is $100.00. In addition to this, the deed ’ recites:

“Vendor never owned nor acquired this property from Dr. Calvin Davis, and that he (Russell) never sold or conveyed said property to F. J. Miles.”

The sale from Miles to Pringle and Davis was for a consideration of $50.00, and that from Hebert to Davis alleges a consideration of $100.00. Since the land was worth $620.00 an acre, as declared in the contract, obviously the deeds from Miles and Hebert also were mere quitclaims.

Russell had sold the land to Miles by exactly the same description as he had acquired it from the heirs of Calvin Davis. In their sale to him they declare:

“and being the same land purchased by Dr. Calvin from A. S. Norris on the 12th day of December, A. D. 1901, recorded in deed book No. 7 page 572 on January 2nd, 1904.”

And Russell in his sale to Miles declares:

“'this being the same land purchased by Dr. Calvin Davis from A. S. Norrid on the 12th day of December, A. D., 1901, recorded in deed book No. 7 page 572 on June 2nd, 1904.”

But Dr. Calvin Davis did not purchase the land in controversy from Norrid on December 12, 1901. He bought it from him on October 25, 1901, by deed recorded in deed 'book No. 7 at page 578. What he purchased on December 12, 1901, was the tract lying southwest 'of that in controversy and indicated on the plat by the angles K, L, E, F, G, and it is this latter tract and not the land in controversy that the heirs intended to sell to or Russell to buy.

It is true that the sale of December 12, 1901, apparently includes the land in controversy, but as Dr. Calvin Davis was already the owner of that land in virtue of his purchase from Norrid of October 25, 1901, it is not at all probable that he intended to buy or Norrid to sell him the same land twice.

The sale with exclusion of warranty from Russell to J. C. Davis is of no value as evidence that the former and not the heirs of Dr. Calvin Davis owned the land. Russell had sold to F. J. Miles what he had bought from the heirs of Dr. Calvin Davis and by exactly the same description.

In his deed to J. C. Davis, Russell says:

“Vendor never owned nor acquired this property from Dr. Calvin Davis, and that he (Russell) never sold or conveyed said property to F. J. Miles.”

Of course, if Russell did not acquire the land from Dr. Calvin Davis or his heirs and did not sell it to F. J. Miles (and he expressly says he did not) the heirs of Dr. Calvin Davis still own it.

The description in the sale from Russell to Miles is exactly the same as that in the sale from the heirs of Dr. Calvin Davis to Russell.

Neither is the deed from Hebert to J. C. Davis of any value as showing that the heirs of Dr. Calvin Davis did not own the land. Though not in express terms a auitclaim the recited price shows it to have been such. As the contract sued on fixes the value of the land at $620.00 an acre and the price paid Hebert was only $100.00 if he owned the land he only got one-fifth of its value.

The source of Hebert’s title is supposed to be a sale from J. C. Davis to him of a tract of land described as:

“All of Ny*. of Sec. 25 and 26 Township 10 North Range 1 East except that portion previously deeded and sold to railroad company, G. P. Tullos and R. N. Price; also one lot of 4 acres situated in NE corner Sec. 27 Township North Range 1 East known as lot No. 14 with all improvements thereon.”

As stated by the District Judge in' his reasons for judgment:

“the description in this deed is general, vague and indefinite and would be hard to locate same.”

Besides, if the land in controversy was included in the sale by J. C. Davis to Hebert, Davis would not have forgotten it and would have told Cookston it was when the contract between him, Cookston and Pringle was being confected. If Davis intended to convey the land to Hebert, as he was only one of four heirs he only conveyed him an undivided fourth of it and the heirs still owned the remaining undivided three-fourths. Had the land in controversy been a part of that purchased by Hebert it is not probable he would have bought without the signature of the three other heirs.

And if the land in controversy was included in the sale by the heirs to Russell, J. C. Davis would have so informed Cooks-ton when the latter opened up negotiations with him.

The sale from the heirs of Calvin Davis to Russell was made in April, 1914, and that from J. C. Davis to Hebert in January, 1919. If the latter sale was intended to include the land in controversy and the former sale also to include it then J. C. Davis sold to Hebert in 1919 the same land that he and his co-heirs had sold to Russell in 1914.

We think the correct explanation of the various deeds is that neither the heirs in their sale to Russell in 1914 nor J. C. Davis in his sale to Hebert in 1919 yin-tended to include the land in controversy; otherwise we should be unable to comprehend how any part of it could have been recovered in the lawsuit mentioned in the petition.

The escrow agreement contains conflicting clauses, and concludes as follows:

“But, in the event said acreage is found, the said escrow agent shall deliver to the party of the third part the check for five hundred dollars, notwithstanding any other stipulation herein made.” (Italics ours.)

Under all the evidence we think it proved that eight-tenths of an acre of land, namely, that embraced in the angles A, B, D, M on the plat, was pointed out by Cookston to plaintiff and J. C. Davis as having been purchased by Dr. Calvin Davis and not sold by him or his heirs, and that they were not aware of the fact before, and that the land in fact had not been sold by Dr. Calvin Davis or his heirs, and that Cookston fully performed his part of the contract between himself, plaintiff and J. C. Davis.

We find no error in the judgment appealed from and accordingly it is affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3244
    Second Circuit
    MAXWELL v. RANDALL
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Office and Officer— Pair. 43.
    An incumbent discharging the duties of an office under a commission not yet expired regularly issued by competent authority, is a defacto officer and, as such, entitled to prevent, by injunction, another, asserting title to the same office under a commission of subsequent date, from interfering with him in the performance of the duties of the office.
    Jackson vs. Powell, 119 La. 882, 44 So. 689.
    Gleason vs. Wisdom, 120 La. 632, 45 So. 530.
    Bourg vs. Turner, 152 La. 828, 94 So. 411.
    2. Louisiana Digest — Office and Officer— Par. 40, 43.
    Where one is in possession of and performing the duties of an office under a commission not yet expired issued by competent authority, and another, acting under a commission of subsequent date, seeks to discharge the duties of the office, such effort on the part of the latter is an interference with the former in the performance of his official duties and illegal.
    Ibid.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by C. C. Maxwell against E. B. Randall.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Theus, Grisham and Davis, of Monroe, and Thornton, Gist and Richey, of Alexandria, and Henagan and Gaharan, of Jena, attorneys for plaintiff, appellee.
    C. W. Flowers; J. L. Pitts, of Jena, and Hawthorn and Stafford, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff alleges that he is a legally qualified member of the Parish School Board of LaSalle parish, Louisiana, for ward two of that parish, by virtue of a commission issued to him by the Governor of the State of Louisiana under date of August 13, 1926, and that he is and has been performing the duties of the office.

He further alleges that since his appointment there has been no election held to choose a successor to himself in the office he holds and that no such election will be held until the first Tuesday after the first Monday in November of the year 1930.

He further alleges that E. B. Randall is attempting to perform the duties of the office held by him in virtue of a commission of date subsequent to that of the commission held by plaintiff, and that Randall’s conduct is illegal and an interference with his performance of the duties of member of the Parish School Board of LaSalle parish, Louisiana, from ward two of that parish, and should be enjoined.

He further alleges that S. T. Chapman is the acting president of the Parish School Board of the parish of LaSalle and in the discharge of the duties of his office as such is and has been aiding and abetting Randall in his attempts to exercise the duties of the office held by petitioner and that such conduct on the part of Chapman is illegal and should be enjoined.

And he prayed Randall and Chapman be cited and served and that the former be enjoined from attempting to exercise the duties of the office held by petitioner or otherwise interfering with his ¡performance of the duties of the office and that Chapman be enjoined from aiding or abetting him in his illegal conduct.

The defendant Randall answered, setting up:

“That defendant does not deny that the plaintiff * * * has a commission issued by the Governor of the State of Louisiana, and that he is acting under and by virtue of said commission, pursuant to its terms, and his qualifications thereunder.
“Defendant further avers that he has done nothing to prevent the plaintiff from serving as a member of the School Board from ward 2 of said parish * * * that in addition to the plaintiff, claiming to be a member of the School Board from said ward, L. H. Taylor likewise claims and asserts that he is a member from said ward, and that this respondent does not claim nor assert anything more than the right himself to serve as a member of the School Board from ward 2 of said parish under the commission, according to its precise terms, issued by the Governor of the State of Louisiana. * * *
“That the commission under which he is serving reads as follows, to-wit:
“ ‘State of Louisiana.
“ ‘Executive Seal.
“ ‘Executive Department.
“ ‘In the name and by the authority of the State of Louisiana, know ye that I have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint
E. B. RANDALL
member School Board, ward two, ¡parish of LaSalle.
“ ‘And I do authorize and empower him to execute and fulfill the duties of said office according to law, and to have and hold the said office, with all the powers, privileges and emoluments to the same, from and after date hereof.
“ ‘In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the State of Louisiana.
“ ‘Witness, O. H. Simpson, Governor of our said State., at the City of Baton Rouge, this the twenty-eighth day of December, in the year of our Lord, 1927', and of the independence of the United States of America, the one hundred and fifty-second, and of the State of Louisiana the one hundred and sixteenth.
“‘O. H. SIMPSON,
“ ‘By the Governor.
“ ‘James J. Bailey,
“ ‘Secretary of State.’ ”

A temporary restraining order was issued against E. B. Randall. No answer was filed by S. T. Chapman and the suit,’ quo ad him, apparently was dropped.

On these issues the case was tried and there was judgment in favor of the plaintiff, C. C. Maxwell, and against the defendant, E. B. Randall,

“* * * prohibiting the defendant from further interfering with him (plaintiff) in the discharge of his duties as School Board member of LaSalle parish, Louisiana, from ward two, until the title to said office has been decided by the court.”

The defendant, Randall, appealed.

Our learned brother of the District Court rendered and filed in the suit a written opinion which very fully covers the law and the facts of the case as follows:

“The plaintiff in this case alleges that he was appointed a member of the School Board of LaSalle parish, Louisiana, in ward number two, by the Governor of the State of Louisiana, on the 13th day of August, 1926, and that under the law and ordinances of the School Board that his time will not expire until in November, 1930. That, notwithstanding this fact, E. B. Randall, holding an illegal commission from the Governor of the State of Louisiana appointing the said Randall as a member of the School Board from ward two in LaSalle parish, and that the said E. B. Randall pretended to qualify as such to succeed your petitioner on December 31, 1927, and that the said Randall will interfere with plaintiff in the discharge of his duties unless there is an injunction restraining the sajd E. B. Randall from interfering with your petitioner in the performance of his duties. The plaintiff secured a restraining order and now seeks a preliminary injunction to prohibit the said E. B. Randall from interfering with him in the discharge of his duties as School Board member of LaSalle iparish from ward two.
“The defendant answers and neither denies nor admits that the plaintiff is a legally qualified member of the School Board of ward two of LaSalle parish, but alleges that he likewise holds a commission from the Governor of the State of Louisiana, appointing him as a member of the School Board from ward two of LaSalle parish.
“The defendant denies that he is in any way interfering with th.e plaintiff or desires in any way to interfere with the plaintiff in the discharge of his duties as a member of the School Board, but, on the other hand, contends that he holds a commission which appoints him a member of the School Board of ward two of LaSalle parish, and that he has a right to discharge those duties, and that plaintiff cannot interfere with him.
“The evidence in this case shows that on the 13th of August, 1926, the plaintiff was appointed as School. Board member of ward two of LaSalle parish by the Governor of the State of Louisiana. That the plaintiff took the oath and qualified as a member of said School Board and has since been in possession of such office, voting and discharging other duties encumber uipon a. member of the School Board.
“The defendant also holds a commission, dated in December, 1927, appointing him as a member of the School Board of ward two of LaSalle parish, and the defendant took the oath of office on December 31, 1927; and, on the 2nd day of. January, 1928, when the school Board of LaSalle parish convened, the defendant was recognized and proceeded throughout the entire day in the performance of his duties as School Board member from ward two. Both the plaintiff and the defendant acted as members of the School Board from ward two.
“L. H. Taylor, the evidence shows, was elected School Board member in ward two of 'LaSalle parish, Louisiana, in 1924, and that his time will not exipire until 1930.
“After the defendant had taken his oath and sat with the Board on the 2nd day of January, 1928, the plaintiff secured a restraining order which prevented the defendant from proceeding any further or from interfering with the plaintiff in any way in the discharge of his duties until the 7th day of January, 1928, at which time a, hearing would be granted as to whether the court would grant a preliminary injunction.
“The court is forced to take judicial notice of the laws of the state, and the law provides for only two School Board members from ward two of LaSalle parish, apd the evidence shows that L. H. Taylor was duly elected School Board member from that ward in 1924, and is still a member from that ward. There can be only two legal members of the School Board of LaSalle parish from ward two. Therefore, there is no other conclusion that the court can reach but that the defendant E. B. Randall was appointed by the Governor to the place occupied by the plaintiff.
“This is not a suit to test the title to this office, but is purely a suit to prevent the defendant from interfering with the plaintiff in the discharge of his duties as School Board member.
“The defendant may have a legal right and the plaintiff, who is the (present occupant of the office, may not have a legal right to this office, but the. plaintiff contends that he is the legal officer.
“It is true that he has been legally appointed and has been performing the duties of School Board member from ward two of LaSalle parish, and if he is not a legal and proper member of the School Board from ward two he is at least a de facto officer of that ward, and since he is in possession, of the office and has performed the duties of that office and being a de facto officer at least, he is entitled to an injunction prohibiting the defendant from interfering with him in the discharge of the duties of that office, if the defendant is interfering.
“The defendant contends that he is not interfering, hut that he has taken the oath, and the evidence shows that he has participated in the actions of the School Board on the 2nd day of January, 1928, and it is certain that both the defendant and the plaintiff are contending for the same office and both cannot occupy that office, and by his participating in the actions of the School Board on the 2nd day of January, 1928, he has conducted a legal interference with the plaintiff.
“In the case of Goldman vs. Gillespie, 48 Ann. 84, it seems that Gillespie was appointed a member of the Levee Board by the Governor and the Levee Board refused to recognize Gillespie when he presented his commission and himself to that body for recognition. The Levee Board continued to recognize Goldman. Goldman then proceeded to obtain an injunction against Gillespie, and the court granted it. He committed no interference, only a legal interference, and from the decision in that case the court is of the opinion that the defendant has committed a legal interference at least with the plaintiff in this case.
“It is a well settled principle of law in this state that a person who has occupied an office and performed duties in that office and is in possession of same, is at least a de facto officer, and upon a prima facie showing he is entitled to have an injunction issue to prevent any one from ousting him from that position until the court has passed . upon the title to the office.
“Therefore, if the defendant in this case is a legal member of the School Board of LaSalle parish from ward two, he has his legal remedy which is pointed out by law, he can bring an ouster suit and let the courts pass upon the question as to who is entitled to the office in dispute. But, as stated, the law is clear, that no one may interfere with an officer in possession of that office against his will until the matter has been settled by the courts/’

We adopt this opinion as our own.

“The incumbent of an office who is unwilling to surrender possession cannot be dispossessed by the exercise of the power of removal and the appointment of a successor, and may, when sought to be dispossessed in the former mode, protect his possession by injunction.”

Jackson vs. Powell, 119 La. 882, 44 So. 689.

“A petition alleging that the petitioner was the duly elected parish treasurer for a term of two years, that he had duly qualified and. was in actual occupancy of the office, exercising its duties and functions, that defendant was illegally pretending to be entitled to occupy such office, and, unless restrained, would attempt to exercise its functions and discharge its duties and receive its emoluments, to the irreparable injury of petitioner, sufficiently set out the petitioner’s right as the. actual incumbent of the office to an injunction restraining defendant’s interference pending a determination of the right to the office.”

Bourg vs. Turner, 152 La. 828, 94 So. 411.

See also Gleason vs. Wisdom, 120 La. 632, 45 So. 530.

We find no error in the judgment appealed from, and, accordingly, it is affirmed.


author: ELLIOTT, J. LECHE, J. Hamilton J.

text:
    No.-
    First Circuit
    DAVID v. ROUBION
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 227; Registry — Par. 12.
    An inscription of a judgment in the mortgage records made before the judgment is final and having the effect of interfering with a suspensive appeal will be ordered cancelled on a rule to show cause.

      ON MOTION TO DISMISS
    2. Louisiana Digest — Appeal—Par. 260, 261.
    Under Art. 573 of the Code of Practice an appeal by motion in open court may be taken during the same term although not the same session of court.
    MERITS
    3. Louisiana Digest — Estoppel—Par. 30, 43.
    One is equitably estopped from refusing to pay for the Ford which he retained and sold, and for which the consideration that he had given, was returned to him and accepted by him.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    Action by Louis David, Jr., against Hamilton J. Roubion.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    A. J. Finney, of Covington, attorney for plaintiff, appellee.
    Miller and Heintz, of Covington, attorneys for defendant, appellant.
   ELLIOTT, J.

The rule to show cause herein why the inscription of the judgment rendered March 15, 1928, in the above entitled case, recorded on the 16th day of March, 1928, in Book No. 43, p. 624, of the Mortgage Records of the Parish of St. Tammany, on the ground that said inscription was and is an interference with the suspensive appeal, taken by the said Hamilton J. Roubion, came on to be heard, and the law being in favor thereof, the rule is now made absolute, and it is ordered that the Clerk of Court of the Parish of St. Tammany, cancel and erase the said inscription as prayed for by the said appellant.

MOTION TO DISMISS

LECHE, J.

Plaintiff moves to dismiss this appeal on the ground that the appeal was granted by motion and without citation, at a session of the Court, different from that during which the judgment was signed. The judgment was signed March 15, 1928, and the appeal was granted by motion in oipen court on March 21, 1928. Mover admits that the ten months term of the Court, begins on .the 1st of October and ends on the 31st day of July. It thus appears that the motion for appeal was made during the same term, not session, of Court during which the judgment was rendered, and that is all that is required by law. C. P., Art. 573, Act 49, p. 151 of 1871. The motion to dismiss is therefore overruled.

MERITS.

Hamilton J.

Roub'on bought from plaintiff on December 5, 1922', one Studebaker automobile, in payment of which he turned over to plaintiff one Ford sedan automobile, on which there was due to one L. Wehrli, Jr., twq hundred ninety and 36/100 dollars secured by chattel mortgage on the Ford sedan, and for the balance of the purchase price, defendant gave plaintiff a series of notes aggregating altogether four hundred dollars. There is. no evidence as to the agreed value of the Studebaker and of the Ford automobile at the time this sale and exchange took place. Neither one of the parties remembers the details of this admitted transaction. ' There is no evidence as to whether plaintiff assumed to pay the chattel mortgage, resting on the Ford sedan, or whether that mortgage was to be ©aid by Roubion. But it does appear that on the day the exchange and salq was made, December 5, 1922, Roubion signed a note which he endorsed in blank and which was also endorsed by plaintiff, for two hundred ninety and 36/100 dollars, which note was discounted hy the Covington Bank and Trust Company and the proceeds thereof were used to pay the chattel mortgage on the Ford sedan in favor of Wehrli. This note was renewed twice and finally taken up and paid hy plaintiff.

Thq present suit is upon a renewal note for the same amount dated April 5, 1923, and defendant disclaims owing the same for the reason that shortly after the sale and exchange of December 5, 1922, he returned to plaintiff the Studebaker automobile; that the return of the Studebaker had the effect of nullifying and avoiding the sale and exchange contract of December 5, 1922; that plaintiff nevertheless keipt the Ford sedan and sold it to his brother; that having kept and retained the Ford sedan, it is only right and equitable that plaintiff should pay the chattel mortgage of $290.36 with which the sedan was effected when he received the same from Roubion.

Such in substance are the facts as we best can gather them from testimony which is remarkably vague as to the details of the transaction which took place on December 5, 1922. It may be argued that Roubion agreed to pay the chattel mortgage of $290.36, resting on the Ford, when he turned the Ford over to plaintiff, from the fact that he signed the note, the proceeds of which were used to extinguish that mortgage. But on the other hand, although the transaction of December 5, 1922', was set aside and avoided, when plaintiff accepted the return of the Studebaker automobile, plaintiff kept the Ford, and in the absence of any special agreement to the contrary, it does seem that he should pay the mortgage. Plaintiff is equitably es-topped from refusing to pay for the Ford which he retained and sold, and for which the consideration that he had given, was returned to him and accepted by him. We think the plaintiff’s claim should be rejected.

For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand is refused at his costs.


author: LECHE, J.

text:
    No.-
    First Circuit
    JONES v. FIRST NATIONAL L. H. & A. INS. CO.
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Insurance—Bar. 106.
    Even though insurance policy had lapsed, where the company accepts premiums and did not cancel the policy, the defendant cannot refuse to pay the beneficiary because it cannot accept the benefits through collection of premiums and refuse to pay the beneficiary.
    2. Louisiana Digest — Insurance—Bar. 106, 174.
    Where there is no evidence to sustain any charge of fraud practiced either by the deceased, his beneficiary or by the collector, the faqt that company accepted premiums will estop it from claiming that policy had lapsed.
    Appeal from the Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.

      Action by Bella Jones against First National L. H. & A. Insurance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellee.
    Chas. A. Holcomb, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment rendered against it for two hundred sixteen and 60/100 dollars, in favor of plaintiff as beneficiary of' a life insurance policy. The defense is that at the time the last premium was paid, the insurance policy had lapsed, and that under the terms of the policy the collector who. collected the last premium had no authority to accept such payment.

The deceased, Auston Lewis, bought two life, health and accident insurance policies from defendant on December 17, 1923, on which he was to pay in advance a weekly premium of fifty cents. The defendant accepted premiums on the two policies up to July 12, 1926, on which date Auston Lewis died unexpectedly at a sanitarium in the City of Baton Rouge.

The last premium was paid on July 12, 1926, about ten or eleven o’clock and Auston Lewis died about one o’clock in the afternoon of the same day. At that time there were five premiums due on the policy, and the amount thereof, two and 50/100 dollars, was paid to the regular collector of the Insurance Company who accepted the premiums and receipted for the same. As we read and understand the collector’s receipt card, this payment covered the premiums due on the policy up to July 19, 1926. The first column of the premium receipt card is headed with the printed words “date when due.” It is not denied that premiums were due one week in advance and the date opposite the collector’s signature is written July 12, so that if the premium was due July 12, it was for the week following, and ending July 19.

One of the conditions of the policy is that “should the insured die when the premium payments on this policy are four Mondays or more in arrears, this Company shall not be liable for any sum under this policy, etc. * *

It then follows, if we are right in reading and construing the written words on, the premium receipt card, that the deceased still had. the whole day, Monday, July 12, in which to pay the premium due and that the payment was made in due time.

There is no evidence to sustain any charge of fraud practiced either by the deceased, his beneficiary or by the collector as against the defendant.

But there is still another reason why the defense in this case should not be sustained. For, admitting that the policy, under the above cited condition, had lapsed, the effect of receiving the premium and receipting for the same by defendant’s collector and agent, amounted to a reinstatement of the policy. The premium receipt card shows that on previous occasions, especially from December, 1925, to January, 1926, more than four weeks elapsed, between payments made by deceased on his policies, and yet the policies remained uncaneelled and defendant continued to accept the payment of premiums thereunder. It is inconsistent on the part of defendant to approve the unauthorized acts of its collector when these acts redound to its benefit and to repudiate them when they enure to the advantage of the policy holder. It has, by its own conduct, estopped itself from making this' defense.

We believe that the judgment of the District Court is correct, and that it should be affirmed, and it is so ordered.


text:
    No. 3206
    Second Circuit
    CORLEY v. HILL, HARRIS & COMPANY, INC.
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Builders and Buildings — Par. 24; Estoppel — Par. 37, 41; Obligations — Par. 160, 165.
    Mere failure on the part of one for whom another has constructed a residence to complain of defective construction, where such delay is not unreasonably long and has not disadvantageously affected the builder, will not work a,n estoppel against such owner to claim damages for improper building.
    Castleman vs. Smith, 148 La. 241, 86 So. 778.
    Breaux vs. Hanson Lumber Co., 125 La. 241, 51 So. 444.
    Borrosky vs. Hill, Harris & Co., 1 La. App. 431.
    2. Louisiana Digest — Builders and Buildings — Par. 8; Obligations — Par. 165.
    If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin, either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with -frames filled with bricks.
    Civil* Code, Article 2762.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Walter B. Corley against Hill, Harris & Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    White, Holloman and White, and Gus A. Voltz, of Alexandria, attorneys for plaintiff, appellee.
    H. W. Hill, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OP THE CASE.

REYNOLDS, J.

Plaintiff sues defendant for $662.40 with 8% per annum interest thereon from December 21, 1921, until paid. He alleges that on December 21, 1921, he and defendant entered into a contract whereby .the latter was to erect him a dwelling house according to certain plans and specifications and for an agreed iprice, and that according to the specifications the material to be. used was to be good and serviceable and the work substantial and workmanlike; that the building was constructed by defendant and delivered' to him and he entered into possession and occupation thereof on March 23, 1923.

He further alleges that—

“* * * shortly thereafter and during the first rain the entire roof leaked because of defective materials and improper workmanship in the application thereof and poor workmanship in the construction thereof; that the water soaked through the roof and the porches, necessitating the placing of receptacles in an attempt to prevent the water falling upon the floors; that the paper on the walls and ceilings in the rooms was ruined. „
“That plaintiff at once notified defendant and defendant attempted to repair the roof but without success; that the leaks constantly became more numerous, and defendant has made numerous attempts to repair the leaks, the last attempt being on or about June 15, 1926, but without success; that because of said leaks the water has found its way under the flooring in the living room and dining room and has caused the floors to warp and the sub-floors to decay, rendering the use of said rooms unlivable in their present condition and necessitating the replacing of the floors with new material.”

He further alleges that defendant specially guaranteed the roof against leaking for a period of ten years.

Plaintiff itemizes his damages as follows: Estimated cost of replacing the roof $330.00 Replacing floors in living room and

dining room_____________ 272.40
Repapering living room, dining room and one bedroom____________________________ 60.00
Total............. $662'.40

Defendant filed an exception of no cause of action, which was referred to the merits.

Thereupon defendant answered, pleading the prescription of one year under Article 2534 of the Civil Code, denying that either the material or workmanship used in the construction of the roof was defective, denying that the alleged damage to the roof, floors or paper on the walls was caused by a leak or leaks in the roof, and alleged that the leak in the roof was not the result of defective material or workmanship but of the design of a flue called for by the plans and specifications according to which the house was built and which plans and sipecifications were provided by plaintiff and for which plans and specifications defendant was in no manner responsible.

Defendant further alleged that although not responsible for the leaks or the damage resulting therefrom, it had, at plaintiff’s request, made certain alterations to the building at its own expense, and that thereafter the plaintiff expressed satisfaction with the building and again accepted it and that plaintiff is now estopped to assert his alleged cause of action.

And defendant further alleged that if it was responsible, for the leaky roof it was plaintiff’s duty to endeavor to have the same repaired as soon as it was discovered and thereby to minimize the damage it caused him and that plaintiff made no effort to have the roof repaired or' to minimize his damage and in consequence if defendant is liable at all it is only for such as would necessarily have remained after proper effort to. minimize the loss.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $662.40 with 5% per annum interest thereon from judicial demand and the defendant appealed.

Plaintiff has answered the appeal and asks that the rate of interest on the judgment be increased from 5% to 8%.

OPINION

The first question to be determined is whether the roof leaked or not and if it did whether the leak was the result of defective construction.

That the roof did leak and that the leak was the result of faulty construction is established, we think, by the testimony of plaintiff and his wife and six other of his witnesses and by the testimony of H. H. Harris, who is connected with the defendant company.

H. H. Harris testified:

“Q. Did you go, out personally to look at the house?
“A. No, sir.
“Q. Send anybody out to look it over?
“A. Yes, sir.
“Q. They found some defects?
“A. Yes, sir.
"Q. They found it leaked?
“A. Pound it had been leaking.
“Q. You attempted to repair it at that time?
“A. We did repair it.”

And that the leaky condition o.f the roof was caused partly if not wholly by bad workmanship in construction appears by the testimony .of Mr. E. Leo Ball, an architect, who testified:

“Q. You examined the roof?
“A. Yes, sir.
“Q. Please state what condition you found the roof to be in?
“A. The roof over the porte cochere and porch was in very bad condition. The roof on the main part of the house was improperly applied by using nails which were unsuitable for the purpose.
“Q. What kind of nails were used, Mr. Ball?
“A. It looked to me like three-penny common shingle nails, and then again some of them were the large head nails, and then others seemed to be the medium size nails, which looked to me like should be used to apply roll roof rather than individual shingles.
“Q. You say the roof was incorrectly applied?
“A. Yes, by the use of improper nails.
“Q. Well, in regard to the lapiping of the shingles, the lay of these shingles?
“A. They seemed to be too far apart. The space shouldn’t have been over a quarter of an inch and in some places an inch some three-quarters — maybe one-half inch.
“Q. In your opinion, would the improper placing of those shingles permit leaks in the roof?
“A. Oh, yes.
“Q. In your opinion were the proper nails used to apply the shingles with?
“A. I don’t think so.
“Q. Please state why not?
“A. Because the nails were, not the proper kind. They were little small headed pails which, of course, when the contraction and expansion from heat and cold left the shingles the head of the nail would go right through the (paper, and of course left the shingles unnailed.
“Q. With what effect?
“A. It caused leaks with the shingles getting away from the roof.
“Q. Did you find that condition to exist in one spot or all over the roof?
“A. Every place I could see it seemed to exist.
“Q. You inspected the entire roof?
“A. Y.es, sir.
“Q. Mr. Ball, in your opinion, could that roof in that condition be repaired?
“A. I don’t think so.
“Q. In your opinion, Mr. Ball, what would have been the only way to have placed that roof in a condition so it wouldn’t leak?
“A. Put on a new roof.
* * *
“Q. Mr. Ball, did you make ’an inspection of the floors and subfloors and materials in the house?
“A. Yes, sir.
“Q. Please state to the court what condition you found those floors and the interior of the house in general, and the cause, of the condition you found?
“A. The place where I examined, I could dig up the shiplap and subfloors and some joists with my fingers, showing that it had completely rotted out.
“Q. From what cause, in your opinion?
“A. It looked to me like wet rot.
“Q. How, in your opinion, did that happen?
“A. Well, it looked to me like only one way it could become wet, and that’s from water coming from above.
“Q. Please state whether those walla were rotten from the bottom or top?
“A. From the top. The one sill I examined was rotten on, top and not on the bottom, showing the water had been standing on the top of the sill.
“Q. Now, Mr. Ball, did you examine the floor in the closet?
“A. I did.
“Q. What was the condition of that?
“A. When I examined it there wasn’t any in there.
“Q. What had become of it?
“A. It had rotted out. I could pull it out with my hand.”

Mr. Ball’s testimony is corroborated and strengthened by that of R. A. Couvillion, E. N. Warner, M. Bize and W. R. Smith.

We think the repairs were necessary and were made necessary by the leaky roof and that plaintiff was warranted in having them made and his testimony shows that they cost him even more than the sum he sues for.

Defendant contends that by accepting the house originally and again after it had made repairs thereto on plaintiff’s complaint plaintiff estopped himself to assert his present claim; and defendant cites the cases of Matthews vs. Rudy, 4 La. App. 226, and DeLambre vs. Williams, 36 La. Ann. 330.

Where defects are not latent or are of minor importance acceptance of the work may discharge the builder from responsibility in the absence of an agreement to the contrary; hut we do not consider the defects in the construction of plaintiff’s house either latent or of minor importance. To have discovered that the roof was faultily constructed plaintiff would have had to get upon it and even had he done that he would not have discovered it as he is not an expert in such matters. He could only discover it after a rain on the house and the roof did leak upon the first rain and plaintiff at once reported it to defendant and thereafter defendant made repeated attempts to repair the roof and failed to stop it from leaking. The reason he failed was doubtless because, as testified to by Mr. Ball, the only way it could be repaired was to remove it entirely and replace it with a new roof. As a builder, defendant is presumed to have known this, and plaintiff, by accepting the house originally and again after defendant had made what he supposed were the necessary repairs, in no way prejudiced any right defendant may have had in the premises or made it change its position to its detriment, and therefore plaintiff was not estoipped thereby to prosecute this action.

Neither is defendant’s plea of the prescription of one year good. The prescription applicable to a case of this kind is that of five years under Article 2762 of the Civil Code which provides that—

“If a building, which an architect or other workman has undertaken to make by th,e job, should fall 1o ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it he built with wood or with frame.s filled with bricks.”

The building was completed by defendant and delivered to plaintiff on March 23, 1923, and this suit was filed January 10, 1927, and therefore the five-year prescription had not run.

Under the law and the evidence the plaintiff is entitled to judgment.

Plaintiff insists that he is entitled to 8% instead of 5% on the amount of the judgment from judicial demand. He has not cited us any authority in support of his contention and we know of none.

We find no error in the judgment appealed from and accordingly it is affirmed.


text:
    No. 3240
    Second Circuit
    FRANCIS v. NOBLE AMERICAN CREOSOTE WORKS, INC., Intervenor
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Privilege—Par. 7.
    The privilege in favor of laborers for wages earned in making cross ties is lost when the laborers knowingly permit the ties to be removed from the premises where made and to be stacked, sold and delivered elsewhere to a bona fide purchaser.
    Union S. & F. Co. vs. J. Supple’s Sons P. Co., 139 La. 692, 71 So. 949.
    Roger vs. Milliken & Farwell, 150 La. 657, 91 So. 143.
    2. Louisiana Digest — Privilege—Par. 7.
    The privilege of laborers on cross ties for wages earned in making them is lost where they allow the ties to be mingled with other ties on which they have no privilege so that the ties on .which they have a privilege cannot be distinguished from those on which they have not.
    H. & C. Newman vs. Cannon, 43 La. Ann. 712, 9 So. 439.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by Martin Francis against James P. Noble. American Creosote Works, Inc., intervenor.
    There was judgment for plaintiff and intervenor appealed.
    Judgment reversed.
    A. D. Flowers, of Jena, attorney for plaintiff, appellee.
    Moss and Moss, of Winnfield, attorneys for intervenor, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

The plaintiff, Martin Francis, sued the defendant, James P. Noble, to recover the sum of $711.46, for wages earned by himself and by other laborers who had assigned their claims to him, in making 12,197 cross-ties, of which amount $120.00 was earned by himself and $591.46 by his assignors.

Plaintiff alleged that he was entitled under the law—

“to have a writ of provisional seizure issue * * * directing the sheriff * * * to provisionally seize and hold the property, rights and credits of the said James P. Noble, and specially all cross ties belonging to or in the possession of said J. P. Noble within the jurisdiction of this court, pending further orders of this court.”

In his prayer he asked that the sheriff—

“provisionally seize and safely hold pending further orders of this court, the property, rights and credits of the said James P. Noble, and specially all cross-ties located on the ‘Y’ of the L. & A. Railroad Company belonging to or in the possession of or manufactured by the said James P. Noble.”

A writ of provisional seizure was issued and under it the 12,197 ties in controversy were seized.

Defendant James P. Noble filed an answer admitting the correctness of plaintiff’s claim and consenting that judgment might be rendered against him as prayed for.

The American Creosote Works, Inc., filed an intervention and third opposition, claiming to be the owner of the ties seized, and that—

“James P. Noble, defendant in this suit, sold and delivered to your petitioners said cross ties on the day and dates as follows, to-wit:
March 15th, 1927__________________________________________1180
March 23rd, 1927__________________________________________1011
March 31st, 1927__________________________________________ 707
April 11th, 1927__________________________________________1296
April 18th, 1927__________________________________________1101
April 25th, 1927__________________________________________1139
May 4th, 1927__________________________________________ 744
May 11th, 1927__________________________________________1174
May 26th, 1927__________________________________________1857
May 31st, 1927__________________________________________ 398
June 7th, 1927_________________________________________ 788
June 17th, 1927__________________________________________1172
July 1st, 1927__________________________________________1323
Total ___________________________________________________14890
“That your petitioner shipped two thousand six hundred ninety-three (2693) of said cross ties, leaving twelve thousand one hundred ninety-seven (12,197) on the side-track of the L. & A. Railroad Company on what is known as the ‘Y’ in the town of Jena, Louisiana; that your petitioner paid the said James P. Noble for said cross-ties and stamped them with the American Creosote Works brand or mark, and had no notice that there were any labor claims on said cross-ties; and that more than thirty days has elapsed since the last of said cross-ties had been purchased; and that plaintiff has no lien or privilege on the same.”

And it prayed that plaintiff be decreed not to have any privilege on the cross-ties seized and that they be released from the seizure and that its right to claim damages of plaintiff as for illegal seizure be reserved to it.

Answering the petition of intervention and third opposition the plaintiff denied that the ties seized were not the property of J. P. Noble or that they were not subject to seizure for his debts and denied that the ties had been delivered by him to intervenor, third opponent.

He further answered that—

“Defendant admits that J. P. Noble entered into a contract for the sale of certain cross-ties to the said American Creosote Works, Inc., but shows that the said sale was . not perfected and could not be perfected until delivery of the said ties as per terms of the contract. That no such delivery was made of the ties provisionally seized, and that for this cause the ties were at the time of the seizure the property of J. P. Noble and subject to the labor liens existing against the said ties as set forth in the original petition of Martin Francis, one of the defendants in this intervention.
“Further answering * * * your defendant shows that he is without information as to the number of ties that had been shipped by the said J. P. Noble to the intervenor, and that defendant in intervention has no interest in any ties other than the 12197 on the side track of the L. & A. R. R. Company on what is known as the ‘Y’ in the town of Jena, Louisiana, but shows that the ties on the said side-track were the property of J. P. Noble and subject to labor claims due by the said J. P. Noble in the manufacture of said ties.”

And he prayed that intervenor third opponent’s demands be rejected and its petition dismissed at its cost.

On these issues the case was tried and there was judgment in favor of the plaintiff, Martin Francis, and against the defendant, James P. Noble, for the sum of $711.46 with legal interest thereon from August 25, 1927, sustaining the writ of provisional seizure and recognizing the privilege asserted thereon by the plaintiff and ordering the seized cross-ties sold for the satisfaction of the judgment, and rejecting the demands of the intervenor third opponent, American Creosote Works, Inc., and dismissing its intervention third opposition.

It was further adjudged that the defendant, J. P. Noble, be taxed with the costs of the main suit and that the costs of the intervention third opposition be paid by the American Creosote Works, Inc.

Intervenor third opponent appealed.

OPINION

If plaintiff’s right to the asserted privilege is to be determined under Act No. 195 of 1912, it cannot be sustained, for the reason that that act grants the laborer a privilege only on the cross-ties he has made or assisted in making, and there is no evidence in the record tending to show that plaintiff or his assignors performed any labor toward making the particular ties seized that has not been paid for.

The ties were manufactured at a saw mill operated by J. P. Noble at Jena, Louisiana, from timber cut and hauled from land some distance away, and the thirteen laborers whose claims for wages make up the amount sued for were employed in operating the mill. The timber was sawn into ties and the sidings of the logs were converted into lumber. It thus appears that no one man made any one or more of the ties, but that all employees engaged 'in operating the mill assisted in the making of all of the ties. The labor for the price of whiqh plaintiff asserts a privilege was performed by the employees between February 8, 1927, and July 15, 1927, and during this time the laborers were paid various amounts on account of the wages earned by them during that space of time. The lot of ties seized originally formed part of a larger lot of 14,890 that had been reduced by sales. There is no way of telling what part of the wages sued for was earned in the manufacture of the 12,197 ties seized or any of them. The wages owing to the laborers "viere for services rendered in assisting in operating a saw mill at which lumber as well as cross-ties were manufactured. The privilege securing the payment of wages for such services is that conferred by Act 23 of 1912. The labor to secure the payment of whose wages Act 195 of 1912 grants a privilege is that of “tie-hackers” who with broad-ax, saw and other tools fell timber and convert it into ties. It is not contended .by plaintiff that he or his assignors performed labor of this latter kind or that the asserted priviledge exists in virtue of the performance by him or his assignors of work -of this kind.

If plaintiff has a privilege it must be in virtue of Act No. 23 of 1912, and that it is the privilege conferred by this act he is claiming appears from his petition, for he alleges therein—

“That the said labor performed by your petitioner and the other laborers from whom petitioner acquired their claims, was done and performed for the said James P. Noble at a certain saw mill or tie mill located near the town of Jena, Louisiana, on what is known as the ‘Heard Place’ and ' that the said James P. Noble placed the products of the said mill, which consisted of cross ties, on the side track of the L. & A. Railroad Company, on what is known as the ‘Y’ within the town of Jena, Louisiana.”

And—

“That by virtue of the labor done and performed by petitioner and by virtue of special subrogation of the rights, liens and privileges of the other laborers, your petitioner has a lien and privilege on the products of said mill, which consists of cross ties, as above set forth.”

But Act No. 23 'of 1912 specially provides that the lien or privilege it grants—

“shall have no effect against bona fide purchasers of the said material, without previous notice.”

The evidence in the case conclusively shows that the ties in controversy had been sold to intervenor third opponent before they were seized, and without notice of the laborers’ claims. "

James P. Noble testified:

“Q. Mr. Noble, when the ties were stacked on the L. & A. ‘Y’ were they inspected by the American Creosote Works?
“A. Yes, sir.
“Q. Branded with their brand?
“A. Yes, sir.
“Q. Mr. Noble, please state whether or not intervenor’s exhibits numbered 1 to 13, inclusive, are checks in payment for ties stacked on the ‘Y’ and cut by your mill?
“A. It is part payment; 5 cents on the tie held back.
“Q. Mr. Noble, state whether or not these checks are in payment for ties seized in this writ of provisional seizure?
“A. Part payment of the ties in the seizure.”

M. C. Miller testified:

“Q. Now, Mr. Miller, just state what this ‘Ramp inspection final by A. C. W. inspector’?
“A. That means that the inspection is final and the ties paid for.
“Q. This is your regular printed form of contract. You put in this contract that you will accept the ties where put on the railroad track and pay for them there?
“A. Yes, sir.
“Q. Did you accept them on the railroad and pay for them?
“A. We did, with the exception of the loading charge.
“Q. I hand you documents marked intervenor’s exhibits 1 to 13, inclusive, and will ask you to state whether or not that is full payment for inspection of ties that were on the yard were made and if that is full settlement in full?
“A. That is settlement in full for the inspection on the yard less the loading charge which was to be borne by the purchaser or seller. In other words, if the seller wants to load those ties at that price he may do so, and if not, we load them ourselves and reserve that for that charge.
“Q. Were those ties delivered to you from the mill to the L. & A. track by Mr. Noble?
“A. Yes, sir. Our inspection report shows that our inspector took them up and I paid according to those reports.
“Q. You inspected the ties on the different dates as shown by the inspections and gave Mr. Noble a check in full for each inspection, less the loading charges agreed upon?
“A. We did.
“Q. Did Mr. Noble load any of those ties?
“A. He loaded about five cars.
“Q. You paid him the additional five cents per tie for loading those five cars?
“A. Yes, sir.”

The only question in the case is, as stated by counsel for plaintiff, appellee, in his brief—

“whether or not the defendant, Noble, was in possession of the ties”— when they were seized.

And he contends that they were for the reason that they were sold f. o. b. cars and when seized had not yet been loaded, and that therefore—

“until the ties were delivered in the cars they were still in the possession of and the property of James P. Noble.”

We think otherwise.

“Tradation or delivery of movable effects takes place * * * even by the bare consent of the parties, if the things cannot be transported at the time of sale,

Civil Code, Art. 2478.

It is stipulated in the contract between the American Creosote Works, Inc., and James P. Noble that—

“Delivery to start at once and be completed within 90 days from date of this order. Ramp inspection final by A. C. W. inspector.”

The ties were ramped on the right-of-way of the carrier and there inspected and accepted by the purchaser’s inspector and branded with the mark or brand of the purchaser to signify such acceptance. This, we think, constituted delivery, and thereafter the ties were at the purchaser’s risk and had they been stolen or destroyed the loss would have fallen on the American Creosote Works, Inc., and not on • the vendor, James P. Noble.

True, it is also stipulated in the contract that—

“It ¡is specially agreed that under no circumstances is the inspection of this material, as indicating acceptance for payment, to be made at any other point than our creosote works. Acceptance of this material for purposes of transportation to the company’s plant shall not be considered as a waiver of the company’s right of inspection of material at the plant as herein provided.”

But this provision was superseded, we think, by the one above quoted,

“Ramp inspection final by A. C. W. inspector.”

The former is part of a regular printed form of contract, while the latter was written into the contract above the former at the time the contract was entered into. The two provisions are inconsistent and we can imagine no reason for specially writing into the contract—

“Ramp inspection final by A. C. W. inspector”—

unless it was intended to replace the other provision.

Aside from this the provision relied on by counsel for plaintiff, appellee was in the interest of the purchaser and could be waived and we think was waived by the inspection, acceptance and branding of the ties on the railroad ‘Y’ and payment of all of the price except enough to cover loading charges in case the seller failed to load them on cars. .

Plaintiff, appellee, also contends that because the purchaser withheld 5 cents of the price of each tie to pay loading cost that this also had the effect of preventing the property in the ties to pass from the vendor to the purchaser.

We are cited to no law and know of none making payment of price in full a condition precedent’ to a completed sale.

“Three things concur to the perfection of the contract, to-wit: the thing sold, the price and the consent.”

Sales may be and often are made partly or even wholly on credit and yet the title to the things sold passes to the purchaser.

The evidence clearly shows that there had been a completed sale of the ties by James P. Noble to the American Creosote Works before they were seized by the plaintiff, appellee, and that whatever right the plaintiff, appellee, or his assignors had to assert a privilege thereon for labor performed in helping to make them was lost.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment recognizing intervenor third opponent to be the owner of the twelve thousand one hundred ninety-seven (12,197) ties seized under the writ of provisional seizure herein and ordering the writ of provisional seizure dissolved and the ties, to be restored to the possession of intervenor third opponent.

It is further ordered, adjudged and decreed that plaintiff, appellee, pay all costs of this suit.


text:
    No. 3223
    Second Circuit
    JOHNSTON v. WITHROW
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the trial court will not be disturbed on appeal unless manifestly erroneous.
    Salcedo Oil Co. vs. Otero, 6 La. App. 45.
    Appeal from the City Court of the City of Alexandria. Hon. J. B. Nachman, Judge.
    Action by W. M. Johnston against Juanita Withrow.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    K. Hundley, of Alexandria, attorney for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff, W. M. Johnston, sues defendant, Juanita Withrow, for the sum of $194.80 with legal interest thereon from judicial demand, damages alleged to have been done to an automobile owned by him in a collision between it and an automobile owned and operated by her, and which collision, it is alleged, was solely the result of negligence on the part of defendant in operating her automobile.

Defendant denied negligence and alleged that the collision was caused solely by plaintiff’s negligent operation of his own automobile.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant as prayed for by him and the defendant appealed.

OPINION

The question to be determined in this case is purely one of fact, namely: whose fault, that of plaintiff or that of defendant, was the proximate cause. of the collision?

The plaintiff testified:

“Q. You allege that on January 10th, of this year, while driving on Elliott street, you were run into by a car of Mjs. Withrow. Will you briefly tell the court which way you were going, the way Mrs. Withrow was going, and the circumstances regarding this collision?
“A. I was driving down Elliott street toward Tenth street, in the direction of and approaching Seventh street, and approaching Seventh street I slowed up and looked noth directions, and I saw Mrs. Withrow’s car at something like one-half block from the corner at the time I slowed down, and I knew that I had plenty of time to cross, so I released my brake and started to cross and by the time I passed the intersection I saw her car was very close to me, and I made an effort to speed my car to get out of the way if I could, but I couldn’t do it. I got the back end of the car three feet from the center of | the street on the right hand side and I struck Mrs. Withrow’s car and turned my car completely over, just missing a telephone pole.
“Q. What kind of car were you driving?
“A. Twenty-five model Dodge touring car.
“Q. What kind of car was Mrs. With-row driving?
“A. She was driving a Ford coupe, which I took to be about a ’25 model also.
“Q. How fast were you proceeding out Elliott street?
“A. Between twenty and twenty-five miles an hour.
“Q. You were proceeding at that speed before you slowed down or after?
“A. About twelve miles an hour when I approached Seventh street, and I slowed down slightly, don’t know, not very much, and I saw the street was clear and released my brake and started across. I judge • I was driving around ten miles an hour, not any faster than that.
“Q. Could you estimate the rate of speed Mrs. Withrow was traveling?
“A. Well, I would judge she was driving close to twenty-five miles an hour; the time I noticed her car it was about five feet from my car when I noticed she was getting close to me. I would judge her to be making twenty-five miles an hour.
“Q. You say your car was hit, the rear portion of it, by Mrs. Withrow’s car?
“A. The rear portion of it; that is, this end; that is, her left wheel hit my left running board.
“Q. When your car was turned over, your car I mean, what position in the street was it?
“A. The car was turned down on its side; I couldn’t exactly say the position it was in. It ripped the top open, I believe it was the strain, so I could get out from under it.
“Q. Turned over on its right hand side?
“A. Yes, sir; on the right hand side, down on the top like.
“Q. Was there much traffic on Elliott street at that time?
“A. No, sir; I don’t think there was a car across Seventh street at any time— well, when I came within two blocks of Seventh street, I don’t remember a car crossing Seventh.”

George A. Randolph testified:

“Q. Tell the court just what you saw, Mr. Randolph, with reference to this collision?
“A. Mr. Johnston was driving towards Tenth street on Elliott street and Mrs. Withrow was driving towards Monroe street on Seventh street, and she hit his car and turned it over.
“Q. Were you looking at these two cars at the time they came together?
“A. Yes, sir.
“Q. How fast would you say Mr. Johnston was driving?
“A. I would judge Mr. Johnston’s speed about twelve miles an hour.
“Q. Did you notice whether he slowed up before he came into the intersection?
“A. No, sir; I never noticed him slowing up; looked to me he held the same speed.
“Q. How fast would you say Mrs. With-row was driving?
“A. About twenty-five miles an hour.
“Q. Did she appear to slacken her speed as she approached the intersection?
“A. No, sir; it appeared to me her car went faster when she got to the intersection.
“Q. Did she turn her car in any direction other than the direction she was going, when she struck Mr. Johnston?
“A. No, sir; she was in the middle of the street. I couldn’t tell that she turned the car in any direction.
“Q. Did you assist Mr. Johnston in getting out of the car?
“A. Yes, sir.
“Q. What did you do, Mr. Randolph?
“A. Helped lift the caf off of him.
“Q. Were you the first person at the collision after it took place?
“A. Yes, sir.
* * *
“Q. What portion of Mr. Johnston’s car was struck by what portion of Mrs. With-row’s car?
“A. Well, it was a little over half way towards the rear of the car, seemed to me like. I never paid’ much attention to the marks of any of the cars where they hit.
“Q. Now which ear entered the intersection first?
“A. Mr. Johnston’s.
“Q. How far in the intersection was his car when Mrs. Withrow’s car entered the intersection?
“A. He was just a little over half way — well, his motor was over half way in the street.
“Q. When Mrs. Withrow entered the intersection?
“A. When she entered. I would say his motor about half way of the street when Mrs. Withrow entered.
“Q. Then his car was beyond the manhole in the center of the street, or the motor of the car?
“A. The motor was, the entire car was not when he entered.”

This testimony in connection with the fact that plaintiff was driving on the right hand side of the street in the direction in which his car was moving, and that the car was struck .in its rear and completely turned over, convinces us that defendant was driving her car negligently and her negligent dtiving of it was the sole cause of the collision.

But defendant testified to a directly contrary state of facts, and she also testified that Mr. Randolph was not present at the time and place of the collision.

“Q. Did you swerve your car away to prevent striking him?
“A. No, sir, I didn’t, because I couldn’t turn into Elliott street because I was already to the manhole.
“Q. So you kept then to 'the same direction you had been going?
“A. Yes, sir. ^
“Q. And Mr. Johnston just swerved to prevent striking you?
“A. Yes, sir.
“Q. You didn’t see Mr. Randolph at all?
“A. No, sir; Mr. Randolph was not on the scene of .the accident.
“Q. Not there at all?
“A. No, sir; he was not then; what he testifies to then he just imagines, I suppose. I don’t know why he should testify to such a statement, but Mr. Randolph was not on the corner when we had the accident. When I got out I saw the Auto Tire negro getting out and Mr. Boissot saw me and came out. Allen told the negro to help him get the top off, and Allen grabbed Mr. Johnston and helped him get out of the car, and he got out fighting mad. Mr. Boissot said: ‘Calm down, Mr. Johnston, because there are ladies at the scene of the accident.’

Nevertheless Mr. Randolph was on the scene of the accident, for Mr. Allen, one of defendant’s witnesses, testifies that he was.

“ * * * I jumped kind of out of the way and pushed it over and this man Mr. Johnston didn’t know he was in the car. I heard him hollering to save my kids and I lifted the car and Mr. Randolph came up as I pulled the kids out, from across the street. He lives back, I expect fifty feet from the corner * * * ”

Mr. Allen’s testimony shows that Mr. Randolph was present, and Mr. Randolph’s testimony corroborates that of the plaintiff.

The trial Judge who saw and heard the witnesses testify rendered judgment in favor of the plaintiff and after reading the record we are unable to say that he erred.

The judgment appealed from is affirmed.


text:
    No. 3245
    Second Circuit
    BOCK v. SUCCESSION OF TIERNEY
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 89, 148, 338, 340.
    Parol evidence is incompetent and inadmissible to prove any debt or liability upon the part of a person deceased, where suit is brought upon the asserted indebtedness or liability within twelve months after the death of such person, unless it consists of the testimony of at least one credible witness of good moral character, besides the plaintiff, or unless it be corroborated by a written acknowledgment or promise to pay signed by the debtor.
    Act No. 11 of 1926.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by M. F. Bock against Succession of Thomas M. Tierney.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    O. A. Easterling, of Monroe, attorney for plaintiff, appellant.
    Newton and Newton, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is an opposition to homologation of the account of Mrs. Jennie Hinderhám Tierney as administratrix of the Succession of Thomas M. Tierney, deceased.

Opponent seeks to be put down on the account as a creditor of the deceased in the sum of $546.55 with legal interest thereon from May 31, 1927. The claim is for a balance of wages alleged to be due him by deceased for services alleged to have been rendered by him as bookkeeper for the deceased.

On trial opponent’s claim was disallowed and he has appealed.

OPINION

The only direct evidence offered by opponent in support of his claim was his own testimony, but Act No. 11 of 1926 requiring the testimony of at least one credible witness, of good character besides the plaintiff to prove an asserted indebtedness against the succession of a deceased plaintiff’s own testimony alone was insufficient to establish the liability claimed. Plaintiff also introduced in evidence the testimony of Abie Marks, D. D. Coulter and T. L. Cox and a page from an account book kept by himself as bookkeeper for the deceased showing debits in plaintiff’s favor against the deceased on account of wages.

The witnesses Marks, Coulter and Cox knew nothing of any wages being due plaintiff by deceased and did not testify that anything was due plaintiff by deceased. They only knew and testified that plaintiff was employed by the deceased. Their testimony, therefore, was not corroborative of that of plaintiff on the vital point in the case. Nor is the account book in question corroborative of his testimony. It was written and kept by plaintiff and is nothing more than a statement written by him of what he testified to orally.

The evidence introduced by plaintiff in support of his claim was insufficient under Act No. 11 of 1926 to make out his case. This was evidently the conclusion of the District Judge as it is ours.

Finding no error in the judgment appealed from it is affirmed.