author: WEBB, J.

text:
    No. 3381
    Second Circuit
    PRICE v. LEE
    (July 1, 1929. Opinion and Decree.)

      Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

In this action, plaintiff, who, together with other workmen, had performed some work around or on an oil refining plant, owned by defendant seeks to recover judgment against him in the sum of $1668.65, which sum includes an amount alleged to be due plaintiff individually and amounts due his co-workers, who had assigned their claims to him.

Plaintiff alleged that defendant had employed Charles N. Atkinson to repair, reconstruct and improve the refining plant, and that Atkinson had proceeded under the employment to repair, reconstruct and improve the plant, employing plaintiff and his assignors in the work, and had not paid them; and plaintiff alleged in the alternative, in event it should be shown that defendant did not employ Atkinson for the purposes stated, that Atkinson had repaired, reconstructed and improved the plant at defendant’s request and for the benefit of defendant, employing plaintiff and his co-laborers in the work, and had failed to pay them their wages; that defendant did not obtain or require of Atkinson a bond for the protection of the laborers, and that plaintiff and his assignors had filed a lien against the property for the amount of their claims; and plaintiff prayed for judgment against defendant in the sum stated above, and for recognition of a privilege on the plant to the amount of his claim.

Defendant excepted tliat the petition was vague, and plaintiff amended, setting forth the character and nature of the work which had been performed, and defendant answered, denying plaintiff’s allegations, with the exception that it was admitted he was the owner of the plant, and that Atkinson had not given any bond, which was explained by the allegations as to his connection with Atkinson, it being alleged, in substance, that Atkinson had represented to him that he, Atkinson, was associated with capitalists who desired to acquire the plant, and that Atkinson represented to defendant that he would clean the premises on which the plant was located, in order that he might show the same thus cleaned to his associates, and that Atkinson did not represent to defendant that he would do any other work, or defendant consent to any other work being done, in connection with the plant than cleaning the premises, which was to be done solely at the expense of Atkinson, and that Atkinson had' not represented to defendant he intended to make and defendant had not consented to nor authorized his making any repairs, reconstruction or improvement of the plant, and that if there was any such work done it was without his knowledge and consent, and he prayed that plaintiff’s demands be rejected at his cost; and on trial judgment having been rendered rejecting plaintiff’s demands, he appealed.

Pending the appeal, defendant died and his representatives and heirs, Mrs. M. C. Lee, widow, and Mrs. Maud Eubanks, Mrs. Ethel Jarrell, Mrs. Enola Rogers, and Hickman Lee, children of deceased, were made parties, and the appeal is prosecuted against them.

The evidence establishes that the relationship between Lee and Atkinson and the conditions and purposes for which Atkinson was permitted to go upon the property, were substantially as alleged by Lee in his answer, and that after -Atkinson had gone upon the property to clean the premises he found that the plant was not in good condition; the gas and oil lines, pumps, still, etc., being in need of repairs, and that, without consulting Lee, Atkinson proceeded to have such repairs made.

Appellant urges that under the answer of Lee and the evidence showing that Atkinson had been permitted to go on the property for the purpose of cleaning the premises with the view of making the property more attractive to persons whom Atkinson expected to associate with him in purchasing the property from Lee, that Lee was equally as interested in having the premises cleaned or the property placed in order as Atkinson, and that, although it was stipulated and agreed that the expense of cleaning the premises was to be solely that of Atkinson, nevertheless as to the workmen employed by Atkinson, Lee was equally bound with Atkinson for the payment of their wages, and that, as to the workmen, Atkinson should be considered as the agent of Lee, and it is also argued that the evidence established that Lee knew of the nature and character of the work, that is, repairs or reconstruction of the plant, being done by Atkinson, and that as to ‘ such work Lee became liable to pay for the wages of the workmen employed by Lee, under the provisions of the building statute, Act No. 298 of 1926; and it is further urged that in any event Lee should have been held liable to the workmen to the extent of the enhancement of the value of his property resulting from the labor and work of plaintiff and his assignors.

The positions urged by plaintiff apparently involve distinct questions of law. We consider the positions in the order stated.

In the first position, which, as stated, is based upon the contention that Lee was equally interested with Atkinson in having the premises cleaned, if it be conceded that Lee was interested and therefore should have borne a part of the expense of having the premises cleaned, the evidence established, however, that Atkinson agreed to bear the entire expense, and certainly as between Lee and Atkinson the agreement controls, and the workmen employed by Atkinson, in seeking to collect the wages due them by Atkinson, must be controlled by the agreement, unless it can be said that Lee and Atkinson were without power to contract or agree that the expense of the work of cleaning the premises should be borne exclusively by one or the other.

It is not suggested that there is any law which prohibited the agreement that the expense of cleaning the premises should be borne by Atkinson, and aside from the fact that the evidence established that plaintiff and his assignors did not deal with Atkinson as the agent of Lee, plaintiff, in attempting to collect an indebtedness due by Atkinson from Lee is bound by the agreement between Atkinson and Lee, and under that agreement, which was in all respects legal, Atkinson being alone bound for the indebtedness, plaintiff cannot ignore the agreement and proceed against Lee as the principal of Atkinson.

In the second position, which is apparently based upon the contention that the evidence established that Lee had knowledge of the character and nature of the work, that is, repair and reconstruction of the plant, being done by Atkinson, it is apparently assumed that under such circumstances Lee became liable for the wages of the workmen employed by Atkinson under the building statute, Act No. 298 of 1926, but as appellant does not direct our attention to the particular provision of the statute from which such result would follow, we assume it is claimed that as to the work of the character and nature of improvements, of which Lee may have had knowledge, Atkinson, as to such work, should be held to have been the agent or representative of Lee.

Certainly if Atkinson was the agent of Lee as to such work Lee would be bound for the wages of the workmen employed by Atkinson, without reference to the building statutes, but it is not suggested that mere knowledge on the part of Lee that Atkinson was having work done of the character or nature of improvements would, under the general law, be sufficient to constitute Atkinson as the agent of Lee, and there is not any express declaration in the building statute that the owner of immovable property, who merely has knowledge that the property is being improved, becomes the principal of the person having the work done. The statute must be strictly construed, and we do not think that under such construction it can be said, even though it should be conceded that Lee knew Atkinson was having work done of the character or nature of improvements, that, under the provisions of the statute, Atkinson became the agent of Lee and that Lee became liable for the wages of the workmen employed by Atkinson.

The contention that Lee should be held liable for the enhancement in the value of the property resulting from the work of plaintiff and his assignors, is made on the evidence of an estimate of the cost of the work done by Atkinson of the character or nature of improvements, and is based upon the equitable ¡principle that one should not be permitted to enrich himself at the expense of another, or, in the ¡present instance, on the claim that the property had been enhanced in value by the labor of plaintiff and his assignors, to the extent of the estimate of the cost of repairs or reconstruction work.

Passing the question of the right of plaintiff to enforce and claim or to exercise the right of his debtor, Atkinson, in this action, we do not think plaintiff occupies a more favorable position than Atkinson would have occupied, if he was seeking to hold defendant for the benefit or enhancement of the value of the property, and with this view Atkinson admits that he did not tell' Lee that he was having any work done in the nature of repairs or reconstruction, and Lee testified that he did not know that any such character of work was being done; and the only evidence indicating that Lee knew that- any such work was being done was' the statement of some of the workmen that Lee had seen them on the premises or working 'around some of the equipment which had been repaired. We do not think that the evidence established that Lee knew that any repair work was being done, much less that he consented to the repairs being made, which, we think, would be essential in order that Atkinson could set up any claim, it being shown that under the permit granted him, it was understood he would not do any work of the character or nature of improvements, and that such work done by him would be at his own expense. But even if Atkinson could have set up a claim against Lee for the improvements or enhancement in the value of the property resulting therefrom, without regard to whether or not Lee knew that the property was being repaired, we do not think that mere proof of the cost of the repairs was sufficient to enable the Court to fix the enhancement in value of the property, especially in view of the statement of Lee that the value of the property had not been enhanced, which must be considered with the fact that Lee had not operated the plant and is not shown to have intended operating it, and that the repairs were without value to Lee unless he intended to operate the plant, and of insignificant value if the plant were 'sold.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 486
    First Circuit
    ALBANY FARM BUREAU STRAWBERRY GROWERS COOPERATIVE ASSN., INC. v. FARRIS ET AL.
    (June 28, 1929. Opinion and Decree.)

      Burns & Pierson, of Ponehatoula, attorneys for plaintiff, appellee.
    Nicholls Pugh, of Springville, attorney for defendants, appellants.
   ELLIOTT, J.

The plaintiff and appellee moves to dismiss the appeal herein on .the ground that it was taken by motion in open court at a term of court different from that on which the judgment was rendered, and that it has not been cited to appear and answer the appeal.

The minutes of the court show that the appeal was taken at a session of 'the court on April 13, 1929. The judgment • shows that it was read and signed in open court on March 8, 1929. Therefore the appeal could be taken, as was done, under the Code of Practice, art. 573, because it was done at the same term at which the judgment had been rendered, and citation was not necessary. Randolph vs. Sentilles, 110 La. 419, 34 So. 587; Succession of Hoyle, 109 La. 623, 33 So. 625; Jacob vs. Preston, 31 La. Ann. 515; Act No. 163 of 1898; Const. 1921, art. 7, sec. 43. In State vs. Salmen Brick & Lumber Co., 149 La. 968, 90 So. 273, the judgment had been rendered at one term and the appeal taken at another. The motion to dismiss is overruled.

Albany Farm Bureau Strawberry Growlers’ Co-operative Association, Inc., claims of Joel Farris and Patrick Cogley in solido $122.74, with interest and attorney’s fees on a promissory note for said amount, annexed to and made part of the petition.

.The defendants appeared on June 20, 1928, and excepted to plaintiff’s demand on the ground that its petition was too vague and indefinite to enable them to answer. The exception was overruled. Defendants made no further appearance, so on September 7, 1928, a judgment by default was entered up against them, and on March 8, 1929, the judgment by default was confirmed. The judgment was read and signed in open court on March 8, 1929.

On April 5, 1929, the defendants appeared •and moved the court to set the judgment aside. The gravamen of their complaint is: That their counsel agreed with one of the members of the firm of attorneys representing the plaintiff that, if defendant would consent to the overruling of the exception of vagueness, the plaintiff’s attorney would furnish defendant with a detailed and itemized statement of their account with the plaintiff; that their counsel, upon receipt of such information, would file an answer, etc.

That said information was never furnished by the member of the firm of attorneys by whom it was promised to the attorney representing them. That therefore their attorney paid but little attention to the case, which had been defaulted at the time of the agreement.

That the other member of the firm of attorneys representing plaintiff, acting without the knowledge or consent of their attorney; appeared and confirmed said default against them in violation of the agreement which had been entered into by his partner, etc.

The minutes show that defendants offered to prove the charges in their motion by parol evidence, but that the plaintiff objected on three grounds; the second ground being that the testimony was incompetent and inadmissible, because not in writing and not made in presence of the court. The court sustained this objection and refused to hear testimony to prove the alleged verbal agreement entered into between counsel out of the presence of the court.

The action of the court in refusing to hear the parol evidence offered was no doubt based on the Code of Practice, art. 145, and Revised Statutes of 1870, par. 1935. There is no return of the court to that effect, but it seems so reasonable to us that the court, in sustaining the objection, was acting on and enforcing court rules requiring that all agreements of counsel, entered into in the presence of the court, must be entered on the minutes, and all agreements entered into out of the presence of the court to be reduced to writing, that we are satisfied that such was the case. The rules were not offered in evidence, but the court had a right to take cognizance of its own rules.

The court refused to set aside the judgment, but the appeal is not from the action of the court on that subject, but from the judgment of March 8, 1929, confirming the default.

We do not think cause has been shown why the judgment should be set aside.

Judgment affirmed; defendants and appellants to pay the cost in both courts.

MOUTON, J., not participating.


text:
    No. 487
    First Circuit
    ALBANY FARM BUREAU STRAWBERRY GROWERS COOPERATIVE ASSN., INC. v. COGLEY ET AL.
    (June 28, 1929. Opinion and Decree.)

      Burns and Pierson, of Ponchatoula, attorneys for plaintiff, appellee.
    Nieholls Pugh, of Springville, attorney for defendants, appellants.
   ELLIOTT, J.

Albany Farm Bureau Strawberry Growers’ Co-operative Association, Inc., brought suit against Bill Cogley and Patrick Cogley to recover of them a balance of $78.42 on two notes. One of the notes was for $85, and the other for $50, but the balance claimed on both is but $78.42.

The petition alleges that the defendants are liable for said amounts in solido.

There was judgment against the defendants in the lower court as- prayed for. Defendants have appealed.

The plaintiffs move to dismiss the appeal on the same grounds urged in the case of General Securities Co., Inc., vs. O. O. Odom, 11 La. App. 301, 123 South. 392, and in the case of Albany Farm Bureau Strawberry Growers’ Co-operative Association, Inc., v. Joel Farris and Patrick Cogley, 11 La. App. 295, 123 South 394, both this day decided.

But, as the amount claimed and the amount of the judgment is only $78.42, which, with the attorney’s fees, is less than $100, we have no jurisdiction ratione materias, and cannot consider the appeal.

Appeal dismissed.

MOUTON, J., not participating.


text:
    No. 3107
    Second Circuit
    JONES v. HARDY ET AL.
    (July 1, 1929. Opinion and Decree.)

      Mabry & Carstarphen, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

Defendant, Mrs. Eva M. Hardy, entered into a written contract with T. P. Whittington for the construction of improvements, according to plans and specifications, on property belonging to Mrs. Hardy, and Whittington sub-contracted with plaintiff, Frank B. Jones, to do a part of the work, which consisted of the construction of concrete walks, garage floor and approach to the garage.

After the completion of the work by Jones, Whittington paid him $100 on the contract price of $327.45, and no further payments being made, Jones filed a lien against the property for the balance of $227.45 and instituted the present action against Mrs. Hardy and Whittington, in which he alleged the facts above stated and that Mrs. Hardy had failed to have the contract for the construction of the improvements recorded, and prayed for judgment against Mrs. Hardy and Whittington in solido for the alleged balance due, with legal interest from October 28, 1924, the alleged date of the completion of the work, and for recognition of the lien filed against the property.

Mrs. Hardy and Whittington, in their original answer, pleaded that the work done by plaintiff was defective, and that Mrs. Hardy had been forced to have some of the work reconstructed at an expense of $95.30, which amount was pleaded as a set off or counter-claim to plaintiff’s demand, and by an amended and supplemental answer defendants alleged that plaintiff had failed to construct the garage floor and approach or apron in accordance with the plans and specifications; that water would run into the garage from the approach or apron, due to the defective construction of the apron, and that the water would stand in the garage, due to the defective construction of the floor, which did not have a sufficient (pitch or fall from the rear to the front to permit the water to drain from the floor; that the expenditure of $95.30 by Mrs. Hardy in having a part of the apron or approach reconstructed had not remedied the defect, and that it would be necessary to reconstruct the garage floor and apron at an expense of $150, which amount should be allowed as an additional set-off to plaintiff’s demand.

Trial was had, and plaintiff’s demands being rejected as of non-suit, a motion was made for new trial, which was granted on agreement of counsel that defendants would not be cast for more than one-half of the costs incurred at that date, and defendants filed another supplemental and amended answer, reiterating their former allegations and further alleging that the cost of reconstructing the floor of the garage and approach would amount to $267.75, and prayed that plaintiff’s demands be rejected and for judgment in reconvention in the sum of $267.75, and on trial judgment was rendered in favor of plaintiff in the sum of $227.45 and in favor of defendants on their reconventional demand in the sum of $80 for reconstructing the garage floor, which amount was ordered to be deducted from the amount awarded plaintiff, and ordering that the costs be borne equally by the parties.

Mrs. Hardy alone appealed from the judgment, and plaintiff has answered the appeal, praying that the judgment be amended and that he have judgment .for the full amount claimed, without any deduction, and that defendant be east for the entire costs.

The evidence conclusively established that, after the completion of the work by plaintiff, water from rains would flow into the garage from the apron or approach, and that due to the fact that the floor of the garage was lower at the rear than at the front the water would stand in the garage until it evaporated or was swept out; but plaintiff contends that the work was done under the direction of Whittington, who did not give him the plans and specifications, and that he having followed the instructions of Whittington and constructed the work as directed, should not be held liable for any defect in the work resulting therefrom.

There is a direct conflict in the evidence as to whether or not Whittington gave any instructions to plaintiff. However, it is conceded that plaintiff knew that the contract between Whittington and Mrs. Hardy was to be done under plans and specifications, and plaintiff’s action being based on the contract he was chargeable with notice of the plans and specifications, and should not be permitted to recover against Mrs. Hardy for work which was not in compliance therewith or where the work was done in such manner as would permit water to flow from the approach or apron into the garage, where the construction of the floor was such that the water would not drain, unless it clearly appears that the defective construction was due to the plans and specifications, which is not suggested was the case in the present instance.

The evidence clearly established that the cost of reconstructing the garage floor would be at least $80, and while it is not shown with certainty what would have been the cost of remedying the defective construction of the apron, it appears that the minimum would have been at least $70, and we are of the opinion that there should be deducted from the amount claimed, $150.

Relative to the costs, the record shows that defendant did not demand that plaintiff should remedy the defects prior to attempting to have such work done, and that she did not take any action until the plaintiff instituted suit, and while it may be said that the work as completed by plaintiff was not a substantial compliance with the contract, and defendant should not be cast for the costs, in view of the power of the court to cast the costs upon the parties as the equities direct (Act No. 229 of 1910), we do not think that the circumstances presented here authorize a variance from the usual rule that the costs follow the judgment (Block vs. Creditors, 46 La. Ann. 1334, 16 So. 267; art. 549 C. P.), and that defendant should pay all costs, except those which had accrued at the time the new trial was granted, of which it was agreed, as above stated, that defendant would not pay more than one-half.

It is therefore ordered that the judgment appealed from be set aside, and that plaintiff, P. B. Jones, have and recover judgment against defendant, Mrs. Eva M. Hardy, in the sum of $227.45, less $150, with legal interest from October 28, 1924, and with recognition of a ¡privilege and lien on the south half of lots 12 and 13 Margaret Place subdivision of the city of Shreveport, Caddo Parish, Louisiana, to secure the amount of the judgment, interest and costs herein rendered; and it is further ordered that plaintiff pay one-half of the costs incurred to the date the new trial was granted on March 7, 1927, and that all other costs in the district court be paid by defendant, and that plaintiff pay the cost of the appeal.


text:
    No. 488
    First Circuit
    GENERAL SECURITIES CO. v. ODOM
    (June 28, 1929. Opinion and Decree.)
    Burns & Pierson, of Ponchatoula, attorneys for plaintiff, appellee.
    Nicholls Pugh, of Springville, attorney for defendant, ■ appellant.
   ELLIOTT, J.

Plaintiff and appellee moves to dismiss the appeal herein on the ground that it was taken by motion in open court at a term different from that on which the judgment was rendered, and that plaintiff has not been cited to answer the appeal.

The minutes of the court show that the judgment was rendered in open court on March 8, 1929, and that the appeal was taken at a session of the court on April 13, 1929. The appeal could be taken as was done. Code Practice, art. 573. It was taken at the same term at which judgment was rendered, and citation was not necessary. Randolph vs. Sentilles, 110 La. 419, 34 So. 587; Succession of Hoyle, 109 La. 623, 33 So. 625; Jacob vs. Preston, 31 La. Ann. 515; Act No. 163 of 1898, Const. 1921, art. 7, par. 43.

The appellee cites State vs. Salmen Brick & Lumber Co., 149 La. 968, 90 So. 273, and contends that it is governing, but such is not the case. At the beginning of the opinion it says that the motion to dismiss was based on the fact that the judgment appealed from had been rendered at one term of the court, and that the appeal had been taken at a subsequent term, which differentiates it from Randolph vs. Sentilles, 110 La. 419, 34 So. 587, and from the one with which we are dealing.

The motion to dismiss is overruled.

The suit is on a promissory note for $225, signed by Odom, on which the balance due is alleged to be $180, secured by chattel mortgage on a Willys Knight automobile. Plaintiff alleges that it is the owner and holder of the note, and the same is annexed to and made part of its petition.

The minutes show that on Friday, June 8, 1920, a judgment by default was entered against the defendant.

The case was assigned for trial on motion of the plaintiff on two different occasions after this time, but nothing came of the assignments; the defendant did not make any appearance.

On March 4, 1929, the default was confirmed, and on March 8, 1929, the judgment was read and signed in open court.

The defendant appeared on April 5, 1929, and moved the court to set the judgment aside, assigning as reasons an agreement between his attorney and one of the members of the firm of attorneys representing the plaintiff. He alleges in his motion: That the case was not tried under the first assignment for some reason unknown. That it was not tried under the last one due to the illness of the defendant, and that it was agreed at that time that the case would be tried as soon as possible thereafter.

That his counsel, relying on this agreement, paid no further attention to the matter. That his attorney, subsequently taking up the matter with the other member f the firm of attorneys representing the plaintiff, learned from him that judgment had been rendered against defendant in violation of the agreement, etc. That no default was ever entered against him.

Defendant offered to support his charges by parol evidence, but the plaintiff objected on three grounds; the second being that the parol evidence offered was incompetent and inadmissible, because not in writing nor made in the presence of the court.

The court sustained this objection, and refused to hear parol evidence to prove the alleged verbal agreement entered into between counsel out of the presence of the court.

As for the contention that no preliminary default was entered against the defendant, the minutes show that it had been done.

The action of the court in refusing to hear the parol evidence offered was no doubt based on the Code Practice, art. 145, and Revised Statutes of 1870, par. 1935. There is no return to that effect, but it seems so reasonable to us that the court, in sustaining the objection, was acting on and enforcing court rules requiring that all agreements of counsel entered into, in the presence of the court, must be entered on the minutes, and all entered into out of the presence of the court must be reduced to writing, that we are satisfied that such was the case. The rules of the court were not offered in evidence, but the court had a right to take cognizance of its own rules.

The court refused to set the judgment aside. The appeal, however, is not from the action of the court refusing to set the confirmation aside; that judgment was never reduced to writing. The appeal is from the judgment of March 8, 1929, confirming the default.

No cause appears to us which justifies setting the confirmation aside.

Judgment affirmed; defendant and appellant to pay the cost in both courts.

MOUTON, J., not participating.


text:
    No. 490
    First Circuit
    U. S. FIDELITY & GUARANTY CO. v. HOULTON
    (June 28, 1929. Opinion and Decree.)
    Spearing and Mabry, of New Orleans, attorneys for plaintiff, appellee.
    Rownd and Warner, of Hammond, attorneys for defendant, appellant.
   ELLIOTT, J.

This is a suit to recover $881.96 as additional premium on a contractor’s bond given pursuant to the requirements and provisions of Act 49 of 1910, par. 5.

The bond is for $50,058.25. A premium of $1,502.74 was paid by defendant at the time the bond was signed. The premium paid is all that can be. asked for on account of the bond signed, unless there came about increased liability under it. The application for the bond contemplates that there may be increased liability for extra and additional work under certain conditions. The plaintiff alleges additional work to the extent of $58,797.48 done under the contract, and that its liability as a bondsman was correspondingly increased, resulting in its right to an additional premium in the amount stated.

It is not necessary to state the grounds of defense, for the reason that we find the ecord is evidently incomplete.

We find that it bears no certificate at all from the clerk of court that it is complete or otherwise. There was mention made during the argument that this record was not complete, but there was no motion to dismiss, and we therefore did not interfere at the time, supposing that the case could be decided on the record as brought up.

We now find that it cannot be done.

There was evidently some evidence introduced by the plaintiff which has not been brought up, and which we feel may, be determinative of the case.

It was the duty of the defendant, appellant, to bring up all the evidence, a complete record showing all the facts in. the case in such a way that same could be reviewed, but this has not been done.

The failure to do so is attributable to the fault and neglect of defendant and appellant.

For these reasons, the appeal is dismissed.

MOUTON, J-. not participating.


author: LECHE, J.

text:
    No. 491
    First Circuit
    SZARI v. VLEGHJTY
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    J. J. Jackson, of Hammond, attorney for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sues for five thousand dollars damages “for shame, mortification and mental suffering” resulting from false and malicious statements and utterances made against him by defendant in the presence of others. The trial judge awarded him one hundred dollars and from that judgment, defendant has appealed to this court.

The amount of damages claimed is not for personal or physical injury, and is so glaringly inflated that we are nevertheless assuming jurisdiction, an issue not suggested or pleaded by the appellee.

At a meeting of the farmers composing the Hungarian Colony near Albany, in the Parish of Livingston, of which both plaintiff and defendant are members, it was suggested that a small donation be made to help defray the expenses of a proposed public school festival. A discussion arose in regard to the financial condition of the association and plaintiff objected to the giving away of any funds while the society was in debt. These good and ordinarily peaceable citizens are very emotional and excitable. Arguments began to wax warm and in short defendant became very irate and walking up to plaintiff applied to him very vulgar and insulting epithets which it would do no good to reproduce in this opinion.

Such is our finding from the testimony and such was the finding of the trial judge. The defense is in the nature of a denial and that excludes and is inconsistent with every other defense.

We see no reason to reverse or amend the judgment of the district court on this pure question of fact. It is therefore affirmed.


text:
    No. 494
    First Circuit
    BRUNETTE v. PRUTSMAN
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    A. L. Ponder, of Amite, attorney for plaintiff, appellant.
    Spearing and Mabry, of New Orleans, attorneys for defendant, appellee.
   LECHE, J.

This appeal was taken by plaintiff from a judgment refusing him additional and continuing compensation. His injury, which was below his knee joint was suffered on March 7, 1925, and he was paid compensation from that time on, up to about November or December, 1928, during approximately two hundred weeks.

The present proceeding filed October 9, 1928, is by rule against plaintiff, to show cause why judgment should not be rendered decreeing him no longer entitled to compensation, etc. Plaintiff’s answer avers in substance that the compensation paid to him should be increased from nine dollars to nineteen 50/100 dollars per week, and that he should be declared entitled to this compensation for a period of four hundred weeks.

Plaintiff first obtained a judgment on February 26, 1S26, awarding him compensation at the rate of $19.50 per week from September 3, 1925, defendant having already paid this weekly sum from March 7, 1925. It was further ordered that these payments be continued weekly until such time as the court might change its judgment.

On April 29, 1927, another judgment was rendered in the same matter, ordering the weekly payments of compensation to be continued, but at the reduced rate of $9 per week from April 21, 1927, “not to exceed the period prescribed by law.”

Payments were thus made until some time in December, 1928, when, upon a rule taken by defendant, another judgment was rendered on December 20, 1928, holding that the payments theretofore made by defendant constituted a full and complete payment of all sums due by defendant to plaintiff on account of the injuries received by plaintiff on March 7, 1925.

Prom this last judgment plaintiff has taken the present appeal.

The first compensation paid to plaintiff was based, we understand, upon injuries inflicted to his leg at or near the ankle joint. That compensation was ' reduced from $19.50 to $9 per week from and after April 21, 1927. Prom that date the reduced compensation was received and accepted by plaintiff until, as before stated, about December, 1928. Under the compensation law as it existed at the time the injury was inflicted, March 7, 1925, the terms of the statute were that amputation between the knee and the ankle shall be equal to the loss of a foot, that the permanent total loss of the use of a member shall be equal to the amputation of a member, and that the loss of a foot entitles the employee to sixty-five per centum of his wages during one hundred and twenty-five weeks. See Act 216, p. 399 of 1924, amending section 8, subsection 1, paragraph (d), Act No. 20 of 1914, as amended.

In this case there can be no question as to the rate of payment per week, for since April 21, 1927, plaintiff has accepted $9 per week. This was the rate fixed by the district court, and no appeal was taken from that decree. The time during which these weekly payments continued to be made is approximately two hundred weeks. The duration of the compensation fixed for the loss of a foot, as seen by the above cited statute of 1924, is only (125) one hundred and twenty-five weeks, so that plaintiff has really been paid for (75) seventy-five weeks more than he was entitled to, under the law.

Plaintiff complains that he is still suffering from his injury, but we are powerless to grant him any additional relief. The statute is our authority, and we have no right to go beyond its limitations.

The judgment appealed from is affirmed.


text:
    No. 496
    First Circuit
    GENERAL SECURITIES CO., INC., v. CITY OF HAMMOND ET AL.
    (June 28, 1929. Opinion and Decree.)

      Burns & Pierson, of Ponchatoula, attorneys for plaintiff, appellee.
    A. W. Spiller, of Hammond, and S. S. Reid, of Amite, attorneys for defendants, appellants.
   LECHE, J.

Plaintiff in this suit appears in the capacity of transferee and subrogee of a claim for damages against the city of Hammond and Tangipahoa drainage district No. 1, which it acquired from Roy 0. Bankston, and therefore, for the purposes of this suit, stands in the shoes of said Roy O. Bankston, with all of his rights and obligations, so far as the defendants are concerned.

It appears that on the night of January 15; 1927, at about 12 o’clock, Bankston’s automobile, while being used and operated with his consent by Millard Bankston, a near relative, ran into a drainage canal, which had been dug in a diagonal direction across Cherry street in the city of Hammond, and was almost totally wrecked. It is alleged that the canal said to be about 10 feet deep and 30 feet wide was dug by the drainage district with the knowledge, consent, and approval of the city of Hammond. It is not denied that the sides of the canal were not fenced or barricaded, and that there was nothing to indicate its presence in the way of signs, signals, or red lights, so that it might be seen at a safe distance during the darkness of night.

Millard Bankston, who was driving the automobile, says as a witness that he was traveling between 20 and 25 miles per hour, did not know diere was a canal crossing the street, and was only able to see the canal when within 10 feet of it, and that it was then too late to avoid running into it.

An exception of no cause of action filed by the city of Hammond was, in our opinion, properly overruled by the trial judge. While the petition does not specifically charge as a conclusion that the city was negligent, the facts alleged in the petition do show the grossest kind of negligence. The city has exclusive control over its streets. It is responsible for death traps or pitfalls dug across the same, and the reasonable presumption is that it has knowledge of their existence. There is nothing in the case of Weinhardt vs. .New Orleans, 125 La. 351, 51 So. 286, quoted by defendant in support of its exception, gainsaying the proposition here stated.

The city of Hammond called in warranty H.. J. Sternberg, the contractor, who dug the canal under a contract with the drainage district, and who had assumed to place safeguards near the canal to prevent such accidents as that which gave cause for the institution of the present suit. Sternberg joined the city of Hammond in opposing the claim of plaintiff, and adopted the same line of defense.

After due trial, the district court rendered judgment in favor of plaintiff against the city of Hammond for $350, and in favor of the city of Hammond for a like sum against Sternberg as warrantor.

Both the city of Hammond and Stern-berg obtained orders of appeal, and, in pursuance of such orders, the case now appears in this court.

The drainage district was also made a defendant in the case, but, for some reason which we cannot find in the record, it seems to have dropped out of the case, and this evidently was with the consent of all other parties.

The main defense is that the accident occurred through the contributory negligence of Bankston, and for this reason, that plaintiff has no right to recover damages against defendant.

The traffic regulations of the city of Hammond were offered in evidence, and the ordinance therein fixes a speed limit of 15 miles per hour. The accident hap-pended on a city street, and the driver of the Bankston car says that he was driving at a speed of 20 or 25 miles per hour. Defendants then contend that the speed at which the automobile was running was the proximate cause of its plunge into the drainage canal, and therefore that Bankston was guilty of contributory negligence.

The Supieme Court of this state very aptly said in the case of Lopes vs. Sahuque, 114 La. 1005, 38 So. 810, that an act violative of a city ordinance is not sufficient of itself to give cause of action for damages in favor of a citizen who gets hurt, where the damage especially is not of the kind which the ordinance was intended to avoid. The converse of this proposition is equally true. The ordinance invoked in this case was certainly not intended to safeguard the traveling public from running into open canals dug across the streets of the city, but its evident purpose was to avoid injury by collision' to persons other than the driver of the vehicle. The proximate cause of the damage to Bankston’s automobile was not the speed at which he was running the automobile, but the unguarded canal or death trap across the street of the city. See Lapouyade vs. N. O. Ry & Light Co., 138 La. 240, 70 So. 110. The same result would most likely have followed if he had been driving at a speed of 15 miles, as limited in the ordinance. Again we say that it is inconceivable that the speed limit fixed upon automobiles was intended to absolve the city from liability to automobilists who might exceed such limit when suddenly confronted with a most unusual condition, a large and deep canal across a public street, unguarded and unknown to the automobile chauffeur.

The rule as to the liability of a defendant, when the plaintiff himself is guilty of negligence, is well stated in a Massachusetts case:

“An action to recover damages for an injury caused by the negligence of the defendant is not barred by the negligence of the plaintiff at the time of the injury, unless plaintiff’s negligence was a direct, contributing cause to the injury, as distinguished from a mere condition in the absence of which the injury would not have occurred.” Black vs. New York, N. H. & H. R. Co., 193 Mass. 448, 79 N. E. 797, 7 L. R. A. (N. S.) 148, 9 Ann. Cas. 485.
“The right to maintain an action for damages resulting from the omission of the defendant to perform a public duty is not taken away, because the person injured is at the time disobeying a statute, where the unlawful act or conduct in no way contributes to the accident.” Hemming vs. New Haven, 82 Conn. 661, 74 A. 892, 25 L. R. A. (N. S.) 734, 18 Ann. Cas. 240.

We are of the opinion that defendant is liable, even conceding that Bankston was driving at a speed exceeding the limit fixed in the city ordinance of the city.

The amount1 of the damage which plaintiff suffered is not seriously contested. The judgment of the district court fixed it at $350 and this award is supported by the evidence.

For these reasons, the judgment of the district court is affirmed as to defendant, and also as to warrantor, with costs.

MOUTON, J., not participating.


text:
    No. 499
    First Circuit
    TOWN OF AMITE CITY v. TANGIPAHOA PARISH SCHOOL BOARD
    (June 28, 1929. Opinion and Decree.)
    S. S. Reid, of Amite, attorney for plaintiff, appellee.
    A. L. Ponder, Jr., of Amite, attorney for. defendant, appellant.
   ELLIOTT, J.

The town of Amite City, claims $470.95 of the Tangipahoa Parish School Board on account of water furnished by the town to the school board for use in the public school at Amite City, Louisiana.

It alleges that it furnished the school board fifty thousand gallons a month for which it makes no charge. The amount claimed is for water furnished in excess of the quantity stated.

Defendant excepted to plaintiff’s demand on the ground that it did not disclose a cause or right of action. This exception was overruled. It then answered, ■ denying that it was indebted to plaintiff as alleged.

The evidence shows that on July 10, 1922, the town by ordinance, agreed to furnish the school board fifty thousand gallons of water a month, on certain conditions.

On September 8, 1925, the town by ordinance announced to' the school board that a charge would be made for all water above fifty thousand gallons per month. The amount which would be charged was not stated. This last ordinance is the one on which the suit is based, and the evidence is to the effect that the excess charged for, is on the same terms for which other parties using the water are charged.

The defendant offered evidence, the purpose and object of which was to show that the town had agreed to furnish water to the Amite City school in an unlimited quantity without charge; but the evidence shows that the town never agreed to furnish free water beyond fifty thousand gallons a month.

We are not aware of any law which takes from the town the right to charge the school board for water, just as it charges any individual consumer in the town.

The evidence establishes that the town furnished water to the extent claimed, and no objection is urged to the price charged.

There was judgment in the lower court in favor of the plaintiff as prayed for, and we think the judgment was correct.

Judgment.affirmed; defendant and appellant to pay the cost in both courts.


author: ODOM, J.

text:
    No. 2672
    Second Circuit
    DELANEY v. MORTER
    (July 1, 1929. Opinion and Decree.)

      Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Crow & Long, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff employed defendant to lay a concrete sidewalk in front of his residence on Kings Highway in the city of Shreveport. The contract was verbal, but it was agreed that defendant should do the work in workmanlike manner and put down first-class concrete, at 20 cents per square foot. The work was done by defendant, and, when finished, was paid for by plaintiff. Some three or four months after the work was completed, the concrete began to crack, the slabs to break in two, and in fact to fall to pieces. The testimony of Mr. Marks, engaged in the concrete business, and of Mr. Weiner, an architect, shows that the concrete is worthless and that the walk cannot be repaired. Mr. Weiner testified that the materials of which the sidewalk was constructed were not properly mixed. He examined the walk a day or two previous to the trial and brought up and exhibited to the court a piece of it which could be broken with the hand. Also photographs were exhibited, showing that in places grass was growing up through the crevices — in fact, all of the testimony, including that of defendant himself, shows that the work was not a first-class job and that the sidewalk is worthless.

Plaintiff notified defendant of these defects and asked him to repair the walk or refund the price which he had been paid. Defendant having failed to do either, plaintiff brought this suit against 'him demanding that he repair or rebuild the sidewalk, and, in the event he failed to do so, that he have judgment against him for the amount which he had paid him.

The defense is that the sidewalk was inspected and accepted by plaintiff and the price paid, and that plaintiff is estopped.

It is true that, as a matter of law, if one inspect and approve work done and pay the price, he cannot subsequently recover the amount on the ground that the work was not done according to specifications. But that rule applies only in cases where the owner has ample opportunity to discover the defects in the work previous to the approval and payment. The rule does not apply in cases like this, where the owner has no knowledge of the construction of sidewalks or of the mixing and laying of concrete, and where the defects cannot be discovered on bare inspection. The testimony shows that the defects in a concrete walk do not appear until the concrete has “set,” which ordinarily takes some time. When the work in this case was done, it appeared to be up to standard. Defendant immediately asked for a settlement, and was asked by plaintiff if he had done a first-class job, and he replied that, if he had not, he would make it good.

On the question of estoppel, counsel for defendant has cited the case of De Lambre vs. Williams, 36 La. Ann. 330, and that of Blodgett Construction Co. vs. Cheney Lumber Co., Ltd., 129 La. 1057, 57 So. 369.

Neither of these cases supports defendant’s contention. In the 36 La. Ann. case, the owner accepted the work after having ample opportunity to discover the defects of which he afterwards complained; said defects being such as could easily be detected by casual inspection.

In the Blodgett Construction Co. case, the owner refused to pay the price of building a wall on the ground that it was built perpendicular and not on an angle, as he claimed it should have been. The testimony showed that both kinds are in use and the owner stood by and saw the contractor build a perpendicular dam or wall without objection or complaint, and the court held that having done so he was bound to pay the price. The testimony in that case showed that the destruction of the wall was due to the nature of the soil where it was located, and the court held that, inasmuch as the site was selected by both the owner and the contractor, the former could not hold the latter responsible for the selection of the site.

In the case at bar, the lower court held that, inasmuch as the sidewalk was worthless, defendant should return the price which he received for constructing it.

We think the judgment is correct, and it is accordingly affirmed, with costs in both courts.


text:
    No. 3425
    Second Circuit
    HAYGOOD v. McKENNA, JR., ET AL.
    (July 1, 1929. Opinion and Decree.)

      Irwin & Blue, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This is an action on a promissory note given in consideration of the lease of a predial estate, in which the defense interposed was that a portion of the property, which was subject to overflow, had been overflowed during the term of the lease, and that defendants were entitled to a proportional deduction in the rent, and defendants appeal from a judgment against them tor the full amount claimed.

The learned trial judge has filed a written opinion, which reads as follows:

“Plaintiff brings this suit to recover a balance due on a promissory note signed by the two defendants.
“The signature on the note is admitted, and the only defense on the part of the defendants is that the note was given to plaintiff to cover rental price of land leased by plaintiff to defendants, that said land was subject to overflow, and that during the term of the lease a part of same was overflowed several times, being about one-third of the property.
“The answer having alleged affirmatively that the land was subject to overflow, can such a defense prevail in a case of a predial estate such as the present one plainly is? We think the case is plainly covered by Civ. Code, art. 2743, reading:
“ ‘The tenant of a predial estate cannot claim an abatement of the rent, under the plea that, during the lease, either the whole, or a part of his crop, has been destroyed by accidents, unless those accidents be of such an extraordinary nature, that they could not have been foreseen by either of the parties at the time the contract was made; such as the ravages of war extending over a country then at peace, and where no person entertained any apprehension of being exposed to invasion or the like.
“ ‘But even in these cases, the loss suffered must have been equal to the value of one-half of the crop at least, to entitle the tenant to an abatement of the rent.
“ ‘The tenant has no right to an abatement, if it is stipulated in the contract, that the tenant shall run all the chances of all foreseen and unforeseen accidents.’
“It would seem plain that under this article the defense cannot prevail for two reasons: First, that an overflow is not an extraordinary accident, and especially in view of the fact that the defendants have alleged that the land was subject to overflow; and, secondly, even in case such an overflow be held to be an extraordinary event, abatement of rent cannot be granted unless there was a loss of crops to the extent of one-half, and under the evidence in this case, there was an overflow not beyond one-third.
“There are numerous cases to the effect that’ an overflow is not of extraordinary nature, but we hardly think it necessary to cite any of such cases, as the article itself, taken together with the allegations of the answer, makes it plain that the defense cannot prevail.
“The case of Dussnau v. Generis, 6 La. Ann. 279, and the case of Denman v. Lopez, 12 La. Ann. 823, cited by counsel for defendants as covering the present case, have no application whatever to the present case in our opinion, for the reason that both of those cases involve urban leases, which are not covered by article 2743, and the present case is an agricultural lease which is covered by article 2743.”

We find that the opinion correctly states and decides the issues presented, and the judgment is affirmed).


author: REYNOLDS, J.

text:
    No. 3518
    Second Circuit
    FISHER v. JOHNSON
    (July 1, 1929. Opinion and Decree.)
    Thornton, Gist & Richey, of Alexandria, attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexan- ' dria, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued to be decreed owner and restored to the possession of certain movable property alleged to be worth $83.45, and for $500 as damages for the illegal detention thereof, and, in aid of the action, obtained a writ of sequestration and had the property impounded.

Defendant admitted the ownership and detention and claimed to have a landlord’s right of pledge on the property, and reconvened for judgment in the sum of $644, with legal interest thereon from June 1, 1928, and for recognition of his right of pledge.

He alleged that:

“The said Fisher brought with him from Texas a Miss Walsh who was employed by the said G. V. Fisher and that the said Fisher represented to plaintiff in reconvention that he wished to establish an office in his home for a period of six months and that he wished to hire the wife of plaintiff in reconvention to work in conjunction with the said Miss Walsh in the conduct and furtherance of the said business of the said G. Y. Fisher and that at the end of six months he intended to enlarge his business and would be in the city of Alexandria in the conduct of said business for a period of at least two years * * * that at the time he was renting and occuping a small dwelling for which he was paying the price of $30.00 per month * * and upon the request and inducement of the said Fisher a large dwelling was rented at a monthly rental of $55.00 * * * solely because the said G. V. Fisher agreed that for a period of six months he would pay the difference in rent * * * and that upon the representations made by said G. V. Fisher a contract was entered into by and between him and plaintiff in reeonvention by which a larger dwelling would be rented on which the said G. V. Fisher was to pay the sum of $25.00 per month for a period of six months, and that said Miss Walsh would be given quarters in the said dwelling, and that the same was to be furnished with adequate furniture and fixtures, as well as to fit out an office for the said G. V. Fisher, all of which was done on the express understanding that the said G. Y. Fisher would retain an office in said dwelling for a period of six months, and would retain quarters for his employee in the said dwelling for a period of two years, for which a rent would be paid, and would employ th.e wife of plaintiff in reconvention in the conduct of said business * * !! that he purchased a lot of furniture for which he obligated himself to pay the sum of $399.00, that he moved into the said dwelling at a cost of $9.00 * * * and lost two weeks time in making said arrangements and in moving; that after the arrangement had been entered into and carried out for a period of three months the said G. Y. Fisher, without any cause whatever, broke his contract, notified plaintiff in reconvention that he was going back to the state of Texas, discharged the said Miss Walsh, his employee, and refused to carry out his contract with plaintiff in re-convention * * * and left plaintiff in reconvention in a most embarrassing and humiliating position; that he was unable to pay the high rent and consequently was sued for same; that he was unable to meet the payments for the entire credit portion on the furniture and was threatened with suit therefor but finally persuaded the furniture company to take back the furniture, which it did at a great loss to plaintiff in reconvention, that his household has been upset and greatly disturbed and that his family has been humiliated and he has been forced to obtain the services of an attorney and incur attorney’s fees in the sum of $200.00; all of which was brought about by the unwarranted and malicious conduct and the fraudulent actions of the said * * * and that plaintiff in reconvention had a lien and privilege on said property to secure the amount of rent and damages due by the said G. V. Fisher to plaintiff in reconvention.”

And he prayed for judgment against Fisher for $644, with legal interest thereon from June 1, 1928, "and that the lien and privilege existing on the property described in the petition in favor of plaintiff in reconvention be recognized and enforced. * * * ”

On these issues there was judgment rejecting plaintiff’s demand at his cost and judgment in favor of defendant on his re-conventional demand against plaintiff for $444, with legal interest thereon from judicial demand and with recognition of a landlord’s privilege in the amount of $50 on the property sequestered.

From this judgment the plaintiff appealed.

The defendant .did not appeal, nor has he answered the plaintiff’s appeal.

The trial judge reduced his reasons for judgment to writing, saying:

“It was proven to the satisfaction of the court that the plaintiff came to Alexandria and represented to defendant that he would establish a business in this city and would maintain an office in the home of the defendant for not less than six months, that his employee, Miss Walsh, would room in the house of defendant for one or two years; and that upon this representation defendant was induced to move into a larger house, the plaintiff to pay the difference in the rent, or $25.00 per month. The court is satisfied that Mr. Johnson would not have gone to the expense and trouble of purchasing a lot of furniture which he did not need and would not have obligated himself for what was, to him, an exorbitant rent unless the inducements had been made to him and relied on by him. The court finds that the defendant is due the defendant $50.00 as rent for two months; and that defendant lost the sum of $58.00 in the deal for furniture, as well as the cost of moving and the time lost. The court also finds that Mr. Johnson was greatly inconvenienced and annoyed and damaged by the acts of the plaintiff in abandoning the scheme and arrangements above set forth, but the court does not think that the claim for attorney’s fees in the sum of $200.00 should be allowed, but that for damages sustained and the difference in rent, loss on the furniture deal, cost of moving and time lost, and the inconvenience, humiliation and worry, defendant was damaged in the sum of $444.00. * * * ”

The preponderance of the evidence establishes that plaintiff leased a room in defendant’s house for six months at $25 a month and occupied and paid rent therefor only during three months. The court below only allowed him two months’ rent. As he has not appealed from the. judgment nor answered plaintiff’s appeal, we' are powerless to amend the judgment in his favor.

The damages making up the balance of the award were not, in our opinion, established with sufficient certainty to support the judgment.

“Damages must be alleged specifically and proven to the same certainty as in a direct action,” Sharp vs. Buchanan, Teiss. Orl. App. .Dig. 127.

In our opinion, whatever representations plaintiff made to defendant as to the probable duration of his stay in Alexandria was the expression of a mere hope or opinion on his part, and could not be made the basis of any liability o"n his part to defendant by reason of loss sustained by defendant in consequence of business obligations assumed by him on the faith of such representations.

The discount at which defendant’s vendor repurchased part of the furniture defendant bought, and the time lost and money expended for drayage in moving from one house to the other, can hardly be deemed a loss in view of the fact that it was by purchasing the furniture and moving into the larger house he was enabled to board and lodge Miss Walsh and provide plaintiff with office room during the time they remained in Alexandria, and for which they paid him.

Defendant did not sustain any loss on account of difference in rents of the two houses, as he did not continue to occupy the larger house after plaintiff .and his clerk left him.

He testified about this:

“Q. When did you move from the house, Mr. Johnson?
‘‘A. Well, I don’t remember; we were in there three months; went in there the first of March, until the first of June.
“Q. Moved out the first of June?
“A. Last of May or first of June; that’s three months, isn’t it?”

Therefore, as the $50 awarded him for rents was for the months of June and July, and as he did not occupy the house during these months, he was not out even this amount, for difference in rents.

No “inconvenience, humiliation and worry,” as the result of plaintiff’s breach of contract, were established by defendant. When asked to specify his damages he did not mention any of these among them. He testified:
“Q. You have itemized some of the items in your record for your suit for rent and the furniture that has been returned; I want to ask you if there are any other damages?
“A. Well, there were two weeks I lost from my work.”

Defendant’s misfortunes appear to have been the result of bad business judgment rather than to misrepresentations on the part of plaintiff.

Plaintiff should have been decreed owner of the property sued for, and entitled to the possession thereof, subject to defendant’s lessor’s privilege for the $50.

Defendant did not claim damages as for a wrongful sequestration, and none were allowed him.

The judgment appealed from is affirmed in so far as it awards defendant $50 on account of rent, with legal interest thereon from judicial demand, with recognition of his lessor’s privilege on the property sequestered, but in all other respects it is annulled and avoided; and it is now ordered, adjudged, and decreed that plaintiff is the owner of the property sued for and entitled to the possession thereof, subject to defendant’s lessor’s privilege for the amount decreed to be owing to him for rent.

The costs of the lower court to be paid by plaintiff, and those of this court by defendant.


author: ODOM, J. WEBB, J.

text:
    No. 3522
    Second Circuit
    MITCHELL v. MAXEY ET AL.
    (July 1, 1929. Opinion and Decree.)
    H. E. Dawkins, of Farmerville, attorney for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendants, appellants.
   ODOM, J.

This is an action on a release bond given under the provisions of articles 279 and 280 of the Code of Practice.

Originally, there was a controversy between plaintiff and defendant over the ownership of a motor truck. Plaintiff brought suit asking that he be decreed the owner of it and had it sequestered in the hands of defendant, executing bond under article 276 of the Code of Practice. Whereupon defendant had the seizure released on a forthcoming bond, under article 279 of the Code of Practice, the condition of the bond being as follows:

“Therefore, the condition of the above obligation is such that if the above bound principal shall not send said released property out of the jurisdiction of said Court, and shall not make any improper use of said property, and shall faithfully restore the same to said Sheriff after definitive judgment if so ordered, then and in that event the above obligation is to be null and void; otherwise to remain in full force and virtue, according to law.”

That is in exact accordance with article 280 of the Code of Practice, which reads as follows:

“The security thus given b/ the defendant, when, the property sequestered consists in movables, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; aiid that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.”

On trial of the original suit there was judgment for plaintiff, sustaining the writ of sequestration, recognizing the plaintiff as owner of the truck sequestered, and ordering the said property restored to him by defendant.

Immediately after that judgment became final, defendant produced the property in controversy and delivered it to plaintiff. However, between the date on which the truck was released to defendant on the forthcoming bond and the date on which he returned and delivered it to plaintiff after the judgment became final, the property had become less valuable, due, first, to natural decay, and, second, on account of shrinkage in value or cut in price of all motor vehicles, both old and new.

The present suit is against both the defendant and the surety on the forthcoming bond for the loss which plaintiff alleges he sustained on account of the deterioration and shrinkage in value of the property while in defendant’s possession.

The testimony shows that when defendant executed the forthcoming bond, and had the truck released to him, he at once put it in a dry place where it was protected from sun and rain, and, in order to protect the casing and tubes, jacked the car up and put skids under the axles. The testimony further shows that from the day it was released to him it was never used by him or by any one else, but on the contrary, remained where he placed it until after final judgment, when he took it out, carried it back, and delivered it to plaintiff.

As stated, this suit is on the forthcoming bond. We do no„ think plaintiff can recover. The only obligations which defendant and his surety assumed under the release or forthcoming; bond were that the property would not be sent away out of the jurisdiction of the court, that no improper use would be made of it, and that it would be presented, after definitive judgment, in case defendant should be decreed to restore it to plaintiff. Code of Practice, art. 280.

Admittedly, the property was not sent out of the jurisdiction of the court; it was not used at all, and it was restored to plaintiff by the defendant after definitive judgment in precisely the same condition as when received, natural deterioration excepted.

We do not think the defendant and his surety can be required to do more. They have fulfilled the obligation imposed by the law ana assumed under the bond. We think they should have been released from the bond the moment they reproduced the property.

Counsel for plaintiff contends that defendant and his surety are liable for such loss as plaintiff has sustained .on account of natural deterioration and shrinkage in value. We do not think so. Where the law creates no obligation, courts can impose none. It has been repeatedly and consistently held that, even where there is inserted in a release bond a stipulation that the principal and surety shall pay all such damages as may be sustained, such stipulation is invalid and not binding. There was no such stipulation in this bond, and, even if there had been, it could not have been enforced. We quote the following from the case of Allen vs. Allen et al., 165 La. 437, 442, 115 So. 648, 649:

“* * * The purpose of a writ of sequestration, in a suit for possession of property of which the ownership is in dispute, is that the court, through its executive officer, shall have and retain control over the property until the suit is finally decided, in order that the property may be delivered to him who is adjudged entitled to it. Code of Practice, Art. 269. The only conditions of the forthcoming bond, on which a party to the suit may release and take possession of movable property that has been sequestered, are that he shall not send the property out of the jurisdiction of the court, or make an improper use of it, and that he will faithfully return it after definitive judgment, if ordered to return it to the other party to the suit. Code of Practice, Art. 280. Any other condition inserted in such a bond is invalid. Welsh v. Barrow, 9 Rob. 535; Mulligan v. Vallee, 31 La. Ann. 375. ‘In such cases a sheriff has no power to take any other bond than that which he is authorized by law to take.’ King & Gerson v. Baker, 7 La. Ann. 570.” Albert Pick v. Dickinson, Inc., 154 La. 1068, 98 So. 669.

Counsel cite and rely on our decision in the case of Overland-Texarkana Co. vs. Bickley, 1 La. App. 699. The decree in that case is correct because the testimony showed that, after having the automoDile released on a forthcoming bond, the defendant used it for two years and wore it out. That was an imnroper use of the property. But, insofar as that opinion can be construed as holding that a defendant who gets possession of sequestered property on a release bond is responsible to plaintiff for the decreased value of the property on account of natural decay or shrinkage in value, due to market conditions, it is wrong.

When a defendant in sequestration proceedings gets possession of the sequestered property by giving a forthcoming or release bond, his obligation is to restore the property at the end of the lawsuit. If he does that, his duty has been fulfilled. Of course, if he makes improper use of the property and its value is thereby diminished, he violates his obligation and the condition of the bond, and is liable on that account".

In the Overland-Texarkana Case, supra, it was said:

“The rights of plaintiff and the corresponding duty of defendants must be determined on the basis of things as they existed on the day the car was seized.”

But, this is a suit on a forthcoming bond and not a damage suit. If defendant had failed to produce the property at the end of the suit, he could have, under the release bond, been called upon to respond for the value of the property, at least to the extent of the amount of the bond. But even then we do not think the value of the property when seized should control, if no improper use had been made by defendant.

In the ease of John M. Parker Co. vs. E. Martin & Co. et al., 148 La. 791, 88 So. 68, the court held on rehearing, to quote the syllabus:

“■Where defendant, in sequestration proceeding after release of property by execution of bond, sold the property, its obligation to plaintiff was merely to produce the market value of the sequestered goods at the date it was called upon to produce it after final judgment, and it is not liable for interest on the price received.”

Por the reasons assigned, the judgment appealed from is reversed, and plaintiff’s suit is dismissed at his costs, in both courts.

WEBB, J.

(dissenting). In Overland-Texarkana Co. vs. Bickley et al., 1 La. App. 699, an automobile .had been released from seizure under a bond given under the provisions of article 280 of the Code of Practice, and, with reference to the liability of the principal and surety on the bond for depreciation in the value of the car, it was said:

“In allowing the defendant to bond property seized in his possession, the law merely acts on the necessity of the case'. It is not practicable to determine on the’ instant the question of right, so the status quo is preserved by leaving the disputed object with the possessor until in the regular course that question can be determined. But no right is thereby conferred on the possessor to make any use of the property to which he was not otherwise entitled. If he has not this right already the law does not give it to him, nor could it constitutionally give anyone the right to use another’s property. The constitution forbids the taking or damaging of property except for public purpose upon compensation previously paid. We think, also, that the obligation faithfully to restore a good car is not fulfilled by restoring one the value of which has almost been destroyed by use. * * * The argument that the car would have suffered depreciation if not used but stored affords no reason to release defendants from liability. Their liability results from the fact of bonding and thereby depriving plaintiff of the benefit of its property. If they had not bonded it plaintiff could have done so and in that event it and not Bickley would have enjoyed it while it was serviceable. We do not think that the reduction in price of cars of the kind in question pending the litigation can inure to the benefit of defendants. The right of plaintiff and the corresponding duty of defendants must be determined on the basis of things as they existed on the day the car was seized. It is true it was not and because of the law’s delays, could not be determined until long afterwards what this right and duty were bet when determined the judgment related back to the beginning of the litigation and amounted in effect to a decision that plaintiff had been throughout the owner and entitled to possession of the car. If the possession to which it had a right had not been withheld from it plaintiff could have realized the then value in such way as it pleased.”

And the writer is of the opinion that the general principle recognized in that decision was that, under article 280 of the Code of Practice, the principal and surety on the release bond are obligated to restore the property in the same condition as it was at the time the bond was given, and were liable under the bond for depreciation of the value of the property, and, considering that the suit in which the bond was given involved the question of ownership, the conclusion is, I think, supported by the great weight of authority in other jurisdictions.

“It is the general rule that where property has been taken in replevin, to comply with the alternative judgment for its return, it must be returned in substantially the same condition as when taken, and without deterioration in value. The party for whose benefit the delivery or redelivery bond is given, under which his property is withheld from him, upon judgment being rendered in his favor for the recovery of the property, or in the alternative for its total value determined by such judgment * * * may elect to accept tender of the property, though depreciated in value, and sue upon the bond for his damages, measured by its depreciated value, etc.” 23 R. C. L. “Replevin,” par. 68; also par. 76; also Washington Ice Co. vs. Webster, 125 U. S. 426, 8 S. Ct. 947, 31 L. Ed. 799; Fair vs. Bank, 69 Kan. 353, 76 P. 847, 105 Am. St. Rep. 168, 2 Ann. Cas. 960.

Considering that in the present case the release bond was given in an action in which the issue was the ownership of the property sequestered, as in OverlandTexarkana Company vs. Bickley, I think the principle announced in that case supports the -judgment appealed from, unless it may be said that depreciation in the value of property, resulting from deterioration due to the inherent nature of the pronerty and decrease or fall in the market price of the property, is not a loss or damage for which recovery may be had in an action on the release bond.

The law, article 279 of the Code of Practice, under which the bond was permitted to be given, provides that “defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside by executing his obligation in favor of the sheriff, with one good and solvent surety, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession,” and while the surety in signing the bond must have contemplated that his liability was restricted to the amount of the bond, or the value of the property as fixed, by the.judge, he must have also contemplated that the amount of the -bond covered any damage to the property, or depreciation in its value, while in the possession of defendant, and could not complain of being held for such damage or depreciation in the value of the property not exceeding the amount of the bond, and I do not see any reason why the surety and principal on the bond should not be liable unless defendant was vested with the right of possession under the bond, which, for the reasons stated in .the Overland-Texarkana Co. vs. Bickley, supra, I do not think was the case. I, therefore, respectfully dissent.


text:
    No. 3563
    Second Circuit
    FUSSELL v. URANIA. LUMBER CO., LTD.
    (July 1, 1929. Opinion and Decree.)

      Julius T. Long, of Shreveport, and Vinson M. Mouser, of Columbia, attorneys for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, and Wm. H. Mecom, of Columbia, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff was employed as a teamster by the defendant company, at a daily wage of $3, and worked 6 days a week. He was driving a “four up” team, riding one of the wheel mules, and on April 26, 1928, while doing so, the mule he was riding bogged and fell, throwing him forward. The top ends of the hames struck him in the lower part of the abdomen, in the inguinal region, causing an inguinal hernia to develop on the right side within less than 48 hours. His right leg was caught between the mule and the wagon tongue and badly wrenched and bruised. He was also bruised in the re-' gion of the scrotum, which caused considerable swelling and pain. Physicians for the defendant company sent him to Alexandria, where he entered a sanitarium, and, while there, Drs. White and McBride performed a hernia operation, which was a success, at least to the extent of keeping the intestines from protruding through the inguinal ring. The defendant company paid the sanitarium bills and the expense of the operation, and also paid him compensation for 15 weeks.

Plaintiff now claims that his injuries have resulted in total permanent disability, and asks that he be paid compensation for 400 weeks, under the Compensation Act 85 of 1926. Defendant admits the injury, but contends that plaintiff had entirely recovered at the end of 15 weeks, and that it is due him nothing more.

The lower court allowed plaintiff full compensation of $11.70 per week, for 26 weeks, and $5.50 per week for an additional 274 weeks as for partial disability. The judgment is in accordance with the law and the evidence, and we shall not disturb it. The hernia which immediately developed on the right side and the operation performed to relieve it totally disabled plaintiff for at least 26 weeks, and, even if it be conceded, as contended by counsel for defendant, that he was not totally disabled for that long, he was still entitled to full compensation for 26 weeks on account of the hernia.

In the case of Baker vs. Wall Drilling Co. (No. 29795) 122 So. 711, not yet officially reported, the Supreme Court said, with reference to hernia cases:

“The statute requires the employer to pay for an operation at a cost not to exceed $250.00 in cases of hernia, and to pay the injured employee a fixed percentage of his wages for 26 weeks, if the operation is successful.” Paragraph 17, subsec. (d), par. 8, Act No. 85 of 1926.

At the end of the 26 weeks, and at the time of the trial, plaintiff was still partially disabled. He testified that he could do no work at all, but we see no reason why he cannot do light work at least. He was still sore to some extent, and the use of the right leg is somewhat impaired. Plaintiff walks with a limp, and says that, while he can walk, yet he cannot move his leg forward in the natural way, but has to drag it. While we are of the opinion that his leg is not in as bad condition as he says it is, we have no doubt that he is disabled to some extent on account of its condition. Plaintiff’s main trouble we think is due to the fact that one of the hames struck him in the lower abdomen, on the left side, and so injured and weakened the walls in the inguinal region that he now has what Dr. Sanderson calls a “potential hernia or a beginning hernia” on the left side. All the physicians, except Dr. Graves, including Drs. White and McBride, who performed the operation, say there is a bulging on that side, and that, while there is not a complete hernia there at present, yet the walls are so weakened that one will develop if plaintiff engages in heavy, manual labor and strains himself. Dr. White testified that in his opinion plaintiff’s condition on that side is congenital. That suggestion does not appeal to us. Plaintiff had never before had any trouble. He was injured on both sides; the only difference being that the injury on the right side was more severe and produced immediate hernia. The net results of the accident to plaintiff are that he has lost some flesh, still has some pain as a result from the operation, has a potential or near hernia on the left side, is somewhat nervous and irritable, and has some loss of function of one of his legs — all of which have unquestionably produced partial disability to do work of a reasonable character.

The judgment is correct, and is accordingly affirmed, with costs in both courts.


text:
    No. 3566
    Second Circuit
    FIRST NATL. BANK OF WINNFIELD v. GUYNES ET AL.
    (July 1, 1929. Opinion and Decree.)

      John J. Peters and Moss & Moss, of Winnfield, attorneys for plaintiff, appellant.
    Harry Fuller & George Wallace, of Winnfield, attorneys for defendants, appellees.
   ODOM, J.

The issues in this case appear at first blush to be somewhat involved, but, narrowed down, the question is whether A. D. Potts owns a certain check for $400, or whether that cheek is owned by the Cedar Creek Petroleum Company.

The First National Bank of Winnfield, plaintiff herein, is a judgment creditor of A. D. Potts, and in January, 1928, obtained a writ of fieri facias under its judgment, and by petition made the Bank of Winnfield, another bank in the same town, a party garnishee, and propounded to it interrogatories in order to ascertain if it was indebted to the said Potts, or if it had in its possession any money or other property belonging to him.

The' Bank of Winnfield answered that it had in its possession a certain check for $400 in which Potts was interested, but could not say whether the check was owned by Potts or the Cedar Creek Petroleum Company, for the reason that the check, together with an assignment of a lease, was • left with it under an escrow agreement between the said Potts and the petroleum company; that it had no' interest in nor control over either the check or the lease assignment, but held both subject to the further orders of the parties who deposited them with it.

When these answers were filed in court, the district judge ordered the garnishee bank to deliver the check and the assignment to the clerk of the district court, same to be held by him subject to its further orders, and the bank was discharged and dropped out of the case.

Subsequently, the plaintiff bank seized in the hands of the clerk under its fi. fa. whatever right, title, or interest Potts had in and to the check, and, in due course, such rights or interest as Potts had were sold for $385; the plaintiff bank being the purchaser. Plaintiff then demanded that the clerk deliver the check to it, and, upon his refusal to do so, ruled him to show cause why the delivery should not be made. He answered that he had no interest in the matter, but was simply holding the check by order of the court and would deliver it only upon the court’s order. The Cedar Creek Petroleum Company then came into the case, and by petition set up that it, and not Potts, was the owner of the check, and that the said check was not subject to seizure by a creditor of Potts, and asked that the check be ordered delivered to it. Potts, being an absentee, was represented by a curator ad hoc appointed by the court. There seem to be some irregularities in the proceedings, but, as no one has complained on that account, we shall not notice them. Finally the issue became joined between the plaintiff bank, the seizing creditor of'Potts, and the petroleum company, as to whether Potts or the petroleum company owned the check. The district judge found and held that it was owned by the petroleum company, and ordered it delivered, as prayed for. The plaintiff bank has appealed.

OPINION.

The history of the transaction out of which the issue as to the ownership of the check grows dates back to May, 1926. At that time the Cedar Creek Petroleum Company was operating for oil in the Urania field, and owned leases on several tracts of land, one of which was the S. W. Vé, of N. E. % of section 6, township 10 north range 2 west. Being cramped for cash, it .seems, to carry on its drilling operations, and in order to realize funds, the ¿ompany and Potts entered into an agreement by which the company assigned to Potts its lease on the above-described 40 acres of land for the cash consideration of $400. The company executed the assignment, but Potts asked for time in which to investigate the title, and he and a representative of the petroleum company agreed that the assignment of the lease, together with Potts’ check to cover the consideration, should be deposited in escrow in the Bank of Winnfield, with the understanding that, if Potts approved and accepted the title, then the bank should deliver to him the assignment of the lease and deliver the check to the company. Potts and a representative of the petroleum company went to the bank where the check and the assignment were left in escrow, with instructions as above stated. The company at once had an abstract of the 40 acres of land made and promptly delivered it to Potts. Potts made no complaint to the company or to any one else of any defects in the title, and, shortly thereafter, left for parts unknown without giving the bank, the escrow agent, any instructions as to whether he accepted the title or what it should do with the check or the assignment. So matters stood until January, 1928; the escrow bank retaining the check and the assignment during all that time. In the meantime, the petroleum company took no steps to have the check delivered to it, and made no open claim to it until the court ordered the escrow bank to deliver the check tó the clerk after these proceedings were begun. The district court held that the company was the owner of the check and should have possession of it. Appellant assigns the following errors:

(1) That the assignment of the lease was never accepted by Potts.

(2) That the petroleum company, having failed to exercise its right under the escrow agreement for more than two years, is now estopped to assert any claim to the check.

(3) That the escrow agreement could not be proved by parol testimony.

We dispose of these assignments in the order named:

1. There is no direct testimony in the record that Potts accepted the title and was willing to have the escrow bank surrender the check to the petroleum company, but there is testimony which, shows to our entire satisfaction that he intended to and did accept the title, and that he considered the matter finally closed, although, as stated, he did not tell the escrow agent or the petroleum company.

A man named Robinson was head driller for the petroleum company at the time, and the company owed him several hundred dollars back salary, and it was to get money to pay him that the lease was sold to Potts. After the check and the assignment were deposited in the bank, and after the abstract had been delivered to Potts, a representative of the petroleum company asked him to pay the money over to Robinson. Whereupon Potts drew his check on the Bank of Winnfield for $400, the exact amount he had put up to pay for the lease, in favor of Robinson, and Robinson had the check cashed at the plaintiff bank (not the Bank of Winnfield), after said check had been endorsed by Robinson and Guynes, then president and general manager of the petroleum company. Potts’ check to Robinson was evidently intended to be drawn against the $400 which he had deposited in escrow'to pay for the lease, for he had no other funds there. This shows to our satisfaction that he had accepted the assignment and intended to close the entire transaction. His payment of the $400 to Robinson was a payment to the company at the suggestion of Guynes, president and general manager. The Bank of Winnfield, on which Potts’ check to Robinson was drawn, did not honor and pay it when presented, because, as we gather, there had sprung up some disagreement among the officers and stockholders of the petroleum company, one of the former having notified the drawee bank not to deliver the amount deposited in escrow to any one except the company. But, so far as Potts was concerned, he drew against the funds in favor of Robinson, an employee and creditor of the company, at the instance and suggestion of Guynes, the president and general manager.

The testimony makes it clear that Potts understood that, while his check was to Robinson, yet he was paying the petroleum company’s debt to one of its employees. That was a delivery of the money to the company. The testimony shows that Robinson was given authority to find purchasers for leases and that the money paid for such leases as he sold them was to go to him until he was fully paid. Potts had no interest in the company and certainly no interest in paying to Robinson or any one else connected with the company any amount except that which he had deposited to pay for this lease. So it is evident, we think, that Potts intended to close the transaction and turn over the $400 for the lease. Any other theory would be inconsistent with his subsequent conduct. He received the abstract and kept it, and did not complain of any defects in the title. Later on he left the parish, and, up to the date of the trial of this suit, he did not claim that the money should be returned to him. If he had intended to refuse the title and finally reject the assignment, which he had a right to do under the agreement if the title was defective, he had ample time and opportunity to do so. If such was not his intention, it would seem most strange that he should go away and leave his money in the bank. We think the transaction was closed. The moment it was so closed the amount deposited by Potts as the consideration for the assignment, represented by the cashier’s check now in controversy, belonged to the company, and the assignment belonged to Potts. It is easy to understand why Potts did not call on the escrow hank to deliver to him the lease. The well which they were drilling turned out to be a dry hole, and the lease was worthless. Our holding that the assignment was accepted by Potts makes it unnecessary to discuss the question of title raised by the plaintiff bank.

2. The plea of estoppel is not good. The day that Potts drew his check in favor of Robinson, intending thereby to deliver the amount in escrow to the petroleum company, the money put up for the lease belonged to the company. That money was and is represented by a cashier’s check, drawn by the Bank of Olla in favor of the Bank of Winnfield, at the instance and request of Potts. That check should now be delivered to the petroleum company. The company’s delay in claiming the check did not cut it off from doing so. Its right to the check had long since accrued, but its delay in asserting its right did not work an estoppel against it. The district judge in his written opinion said:

“From the evidence it seems that the greatest fault that the Cedar Creek Petroleum Company is guilty of in this matter is its long silence and inaction in asserting its legal rights to this check, but as it has not been silent long enough to prescribe and as there has been continuous litigation over this matter, the Court is of the opinion that the Cedar Creek Petroleum Company is not estopped from asserting its rights to the funds of this check.”

We add that the litigation spoken of by the district judge was not over the amount represented by the check in controversy, but over the cheek which Potts gave Robinson, and which was cashed for Robinson by the plaintiff bank.

There is such a principle in law as “estoppel by silence.” That estoppel arises only in those eases where “a person who by force of circumstances is under a duty to another to speak, refrains from doing so, and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice.” 16 Cyc. 681.

In Taylor Co. vs. New York & Cuba Mail S. S. Co., 159 La. 381, 105 So. 379, the court quoted approvingly the following:

“A person, who by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and to act accordingly, is estopped” — citing Branson vs. Wirth, 17 Wall. 32, 21 L. Ed. 566.

The plea of estoppel is here interposed by the plaintiff bank, but the silence of the petroleum company has not in any way misled plaintiff to its prejudice.

3. Counsel contends that the escrow agreement could not be proved by parol testimony. We find no merit in this contention. The escrow agreement was not in writing, and did not need to be.

“Although some of the authorities hold that the condition upon which the instrument was deposited must be expressed in writing, the weight of authority is to the effect that it need not be so.” 21 C. J. par. 7, p. 868.

A verbal agreement may be proved by parol testimony. The assignment of the lease and the check were in writing. Parol testimony could not, of course, be admitted against or beyond what was contended in these acts. Civ. Code, art. 2276. But they were merely deposited with the bank with verbal instructions as to what disposition should be made of them, and it was the latter agreement which the court permitted to be proved by parol testimony. There was no error in that.

The judgment appealed from is affirmed, with costs in both courts.


author: WESTERFIELD, J.

text:
    No. 10,503
    Orleans
    PIZZATI v. CHARLES FERRAN & CO. ET AL.
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    U. Maranino & Michel Provosty, of New Orleans, attorneys for plaintiff, appellee.
    Loys Charbonnet, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

Plaintiff sues for commissions on steamship repair work, which he claims to have solicited and obtained for the defendant, in the course of his employment as a solicitor or “runner.”

The trial court found that he was entitled to the amount claimed in his petition, $604.40, and rendered judgment accordingly. Defendant has appealed.

The issue, which is one entirely of fact, is elaborately discussed by the learned judge, a quo, in his reasons for judgment. Without repeating here what was there said, or giving an independent analysis of the evidence, we deem it sufficient to say that we are in accord with the conclusions reached by the trial court, consequently the judgment appealed from must be and it is hereby affirmed.