text:
    No.-
    First Circuit
    PERKINS v. LONG BELL LUMBER COMPANY, INC.
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)

      (.Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where the defendant fails to call witnesses who, according to the testimony given, could have contradicted the evidence given by plaintiff, there is a strong probability that witnesses were not called because defendant knew that plaintiff’s version of the matter was correct. Plaintiff’s version is considered correct.
    2. Louisiana Digest — Master and Servant— Par. 158.
    Where a second breaking of injured employee’s leg occurs while he is still under the care of a nurse and forbidden to leave the room by the physician employed by his employer, while he was attempting to get out of bed, the second breaking of his leg is an accident arising out of and in the course of his employment within the meaning of Section 38 of Act 20 of 1914 as amended by Act 38 of 1918.
    3. Louisiana Digest — Master and Servant— Par. 154, 160(a), 160(j).
    An injured employee is justified in refusing to submit to a third operation on his leg where the preponderance of evidence shows that the operation may not help and will be attended by very great danger to employee’s life. In this case employee’s right to recover compensation under Act 20 of 1914 as amended, the Workmen’s Compensation Act, will not be impaired.
    4.Louisiana Digest — Master and Servant— Par. 159, 159(a).
    Where injured employee’s leg, after two years has not recovered sufficiently for him to perform labor, he is permanently totally disabled and is entitled to recover compensation under the Workmen’s Compensation Act, Section 8, Par. D, of Act 20 of 1914. as amended by Act 43 of 1922.
    (Editor’s Note: The recent amendment . to Act 20 of 1914 is Act'85 of 1926.)
    Appeal from the Parish of Beauregard. Hon. Jerry Cline, Judge.
    Action by Leroy Perkins (Gonzalous Perkins substituted as plaintiff) against Long Bell Lumber Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Ped C. Kay, of De Ridder, attorney for plaintiff, appellant.
    Thornton, Gist and Richey, of Alexandria, attorney for defendant, appellee.
   ELLIOTT, J.

Gonzalous Perkins, employed by the Long Bell Lumber Company, Inc., as rider for a skidder horse, got his right leg and thigh badly broken while engaged in the work for which he was employed to do by a falling tree which was being felled by defendant’s cutters. The accident happened on May 23, 1924. He was a minor at the time, and this suit was brought for him by' his father and mother. He was soon afterwards emancipated and relieved of the time prescribed by law for attaining the age of majority. He was substituted as plaintiff, and proceeded with the suit in his own name and for his own benefit.

His petition alleges that the broken bones of his leg have not properly united, but overlap. That his right leg as a result is one and one-half inches shorter than the other. That the dead bones in his leg are still working out, causing soreness and a discharge. That his leg was also made crooked and his knee stiff by the- break. That his injuries have produced in him a permanent total disability, and that he is unable to do work of any reasonable character. That he was being paid at the time of his injury a weekly wage of $14.40. He claims 65 per cent of his weekly wages for 400 weeks as compensation, less $656.65 admitted to have been received.

Defendant in effect concedes that it was liable to plaintiff on account of the first breaking, but claims that it has paid him all that it owes on said account. That after about five weeks of treatment and after his leg and thigh had practically healed, he fell and rebroke his leg. That this second break did not arise out of nor in the course of plaintiff’s employment, but was the result of his own negligence and carelessness and due to the violation of the instructions of his physician. That defendant is not responsible for the second breaking. That the chief and only injury from which plaintiff now suffers is due to a sinus from a neucrose bone in his leg, the removal of which would be a safe and simple operation. That defendant offered to have it removed so that the discnarge could heal, but plaintiff arbitrarily and unreasonably refused said treatment. That if he had permitted it to be done, his leg would have been practically healed.

judgment was rendered in favor of the defendant and the plaintiff has appealed.

The evidence shows that some six or eight weeks after plaintiff’s leg and thigh were broken, he fell and rebroke his leg, and this second break is the chief cause of his present disability.

The Judge a quo in stating his reasons tor judgment held that plaintiff fell at the steps while attempting to walk down to the yard without the assistance of an attendant or other person; and further, that it was “undenied and clearly established that the second injury was incurred by reason of direct disobedience of reasonable orders of the physician.”

That the employer cannot be held for an injury resulting solely from a disregard of rules of safety prescribed for his conduct. That plaintiff’s act constituted almost a deliberate failure to use adequate care or protection against accident, provided for him in Section 28, Paragraph 1, of the Compensation Act.

The physician who had charge of plaintiff when he was first injured testified that he was in bed at the hospital somewhere from six to eight weeks as the result of the breaking of his leg and his thigh; that plaintiff was ready to leave the sanitarium, and was up iñ the house on crutches. That he was through; that he had discharged plaintiff, and had notified defendant to get him most any day. That they had t'o get him at their convenience, etc. He further said:

“We instructed him not to get out of the house without the assistance of the nurse. They called me that night and the nurse told me about him hurting his leg over. After he fell they put him back to bed. Upon examination I found that the leg was broken over in the fall. Before the second break I had notified the company that I was through and he was well.”

Further:

“Plaintiff told me he started down the back steps; that he did not call anybody to help him; that he had his crutches and slipped from the top step. The crutc.i slipped and he fell and hurt his leg.”

That he had instructed plaintiff not to go out of the house without the assistance of the nurse to help him. That plaintiff told him that he did not notify anybody.

“Q. He told you about getting back to bed from the steps?
“A. Tne nurse carried him, and other assistants around there.”

Asked if the plaintiff told him that he was sitting on the edge of the bed and tried to get up from the hed and the bed slipped from under him, he replied “no.” He further testified that plaintiff was not obeying his instructions when he started down the steps without assistance: that he had given him orders not to leave the room without assistance.

“Q. You were afraid of that same proposition?
“A. Was dangerous for anybody to get on crutches like that.”

Another physician who had assisted in treating plaintiff’s injuries testified that he had agreed in consultation with Dr. Roberts with reference to the first break, that plaintiff was in condition to leave; that he was convalescent. That plaintiff told him he rebroke his leg trying to get out of the door.

Plaintiff’s version as to how he received his second injury is as follows:

“They had me in bed for five weeks; that I did not move and Dr. Roberts told me to stir around and gain my strength back, and I was getting out of bed. The bed had rollers; me being weak I leaned back against it, and it rolled from under me.”
“Q. Who helped you up? What happened?
“A. Broke my leg over again.”

In response to further questions he said that they operated on him again, put him under another anaesthetic, and that he remained in the sanitarium seven weeks longer." Asked on cross-examination if it was necessary to pick him up when he rebroke his leg the second time, his answer was that he was beside the bed and pulled back up and got back in the bed. That he did not slip downstairs; that he was in the room. That he was not going down the stairs when he broke his leg the second time; that there were no stairs to go down; he was already down the stairs. That he was too weak to stand up and could not get to the steps.

There is no substantive proof to the contrary.

The lower court rejected plaintiff’s demand on account of the statements which the physicians said he had made to them about starting down the back steps and falling and rebreaking his leg. The lower court,' in our opinion, gave too much weight to what the physicians said on the subject. It does not appear how plaintiff came to make the statement he is said to have made. The physicians were not questioned as to whether the statement repeated was all that plaintiff had said to them concerning the matter, nor was it brought out when the statements were made.

Plaintiff had been put under anaesthetic for the purpose of resetting his leg, but the physicians were even not questioned as to the plaintiff’s mental and physical condition at the time these statements were made by him. His suffering immediately preceding and following the setting of the second break must have, been intense. If his mental and physical condition had been inquired into at the time, it is not unlikely that his statements at the time would have been given little weight, if any, on that account. See Morris vs. I. C. R. R., 127 La. 446, 53 So. 698.

Not only the above, but the statements are discredited by an established fact. One of the physicians after quoting what plaintiff is claimed to have said, added the following: “After he fell they put him back to bed.” And in another place he added: “The nurse carried him and other assistants around there.” Now just 'how far the bed was from the steps does not appear, but if plaintiff had started down the back steps on his crutches and slipped from the top step and fell, as is claimed that he did, it is reasonably sure that he could not have gotten back up the steps and from there to his bed, without help. The injury was too great. It would have been necessary to carry him back. The physician says that the nurse and other assistants carried him back; consequently, if he really did fall at the door while trying to get down the back steps into the yard, as held by the lower court, his testimony as a witness on the stand explaining how it happened, would not have passed unchallenged. The nurse and others who carried him back from the door to his bed would have been called to contradict him. Therefore, plaintiff’s testimony as a witness, stating how he received the second injury, is supported by the fact that the nurse and her assistants were not called, and by the strong probability that it was not done because the defendant knew that plaintiff’s version of the matter as stated by him, as a witness on the stand, was true and correct. Rubenstein vs. Files, 146 La. 728, 84 So. 33; Toca vs. Rojas, 152 La. 318, 93 So. 189; Succession of Rageur, 158 La. 96.

We are convinced that plaintiff’s account, given as a witness on the stand as to how his leg carné to be broken, is correct. That the plaintiff acting on the instructions of the physician employed by defendant, was getting out of bed for the purpose of stirring around in an effort to gain back his strength; that the bed had rollers, and plaintiff being weak leaned back against it, upon which it rolled from under him with the refeult that he dropped to the floor and his leg was again broken as a result of the fill. Under such facts and circumstances, the second breaking was just as much of an accident as was the first, and must be regarded as the result of the first break, and, like it, an accident arising out of and in the course of plaintiff’s employment within the contemplation of the law. Act 20 of 1914, Section 38 fAmd. 38 of 1918).

In regard to plaintiff’s condition at the time he received his second injury, the physician treating him testified that he had so far recovered that he had discharged him and had notified the defendant; but the same physician also testified, and the fact was, that plaintiff was at the time in the same hospital in which he had been placed by the defendant for treatment at the time he was first injured, and he was in there on account of his first injury at the time of the second breaking, and still under the care of the nurse, and so far from being recovered that the physician in the employ of defendant and treating him on account of the first break, had forbid his leaving the room without the assistance of a nurse.

In such a situation the plaintiff was still in defendant’s service within the purview of the law, and entitled to compensation according to the condition which his first and second injury had together produced in him.

Plaintiff has undergone two operations under a general anaesthetic, and a third without an anaesthetic. Defendant wishes him to undergo another for the purpose of removing dead bone from his leg, in the hope that the discharge from the two calluses may be stopped. Plaintiff refuses, and defendant urges that his refusal is arbitrary and unreasonable.

“They asked me,” plaintiff 'says, “to submit to another operation for the purpose of taking the bones out of my leg.” He knew by that, he says, that they intended to put him to sleep and he did not believe he could stand it. A party who had been put to sleep twice, was put to sleep again and he died. He did not want to be put to sleep the third time. The above is the meaning of plaintiff’s language on the subject. His fears were not unreasonable. The law does not provide for operations that may result in cures or benefits in order to reduce or cut off compensation; but at the same time there are some to which an injured employee must in reason and justice submit.

There are two discharging calluses on plaintiff’s right leg coming from the seat of the fracture. The physician who had charge of his case at the time of his first and second injury, when first asked about the sinus, said that it was not due to dead bone, but upon being shown an x-ray picture of the fracture, he said that it was, and that there was a small piece of detached dead bone in a cavity at the place. He also says that if the loose piece of bone was removed the sinus would heal, and that it would work out itself in time. That it could be done by local anaesthesia and would be a minor operation and without danger to life • or limb, but other physicians called by defendant, did not take such a favorable view of the matter. One of them, who had treated plaintiff, says that plaintiff was only discharged from the hospital subject to his submitting to another operation for the purpose of removing these bones. He thought that plaintiff’s condition would be improved by the removal of the piece of dead bone from the cavity, and scraping the bones. In speaking of the bone that should be scraped, he, of course, did not mean the piece that was to be removed, but the remaining bone at the place of fracture. He thought that removing the piece in the cavity and the scraping of the bone would not be dangerous unless infection ensued or existed, but says that plaintiff’s leg bone is diseased to some extent at the place of fracture. He therefore says in effect that the operation would be dangerous.

Another physician who had also treated plaintiff after two others had ceased to do so, and had removed five or six small pieces of bone from his leg, was not sanguine that the discharge would be cured by another operation. As for infection he-said that it could not be guaranteed against but believed that an operation would result in a cure and that it could be safely performed. Still another who had examined plaintiff in behalf < of defendant expressed. the opinion that the -operation could be safely performed, but he was not absolutely sure that the discharge would thereby be cured. The probabilities were that it would.

A physician called by the plaintiff, and who had examined him just before the trial, expressed opinions seemingly untouched by interest in the result. He thought that the discharge would not be stopped by the removal of the piece of detached bone in the cavity. The discharge, he said, would continue as long as there is dead or infected bone, and would probably stop if all the dead and infected bone were removed. We understand him to mean that the small piece of dead bone in the cavity is not all that exists. That there is more at the seat of the fracture and that an operation for the purpose of removing it, will be dangerous, because of the infection. Danger to life from an operation which the employer wishes to have performed on an employee, has been considered by the Supreme Court and the Courts of Appeal in this State on several occasions. Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 So. 759, and Martin vs. Wyatt Lumber Co., 4 La. App. 157, may be regarded as leading cases on the subject. According to the preponderance of the evidence, the operation which the plaintiff wishes the defendant to undergo, may not stop the discharge of the calluses if performed, and will be attended by a very grave danger to plaintiff’s life. Plaintiff therefore will not be required to undergo it.

In regard'to plaintiff’s physical condition and capacity for labor there is a difference of opinion among the witnesses on that subject.

One of the physicians called by the defendant says that a good union of the fracture was obtained after the second break. He estimated plaintiff’s capacity at 75 per cent of what he could formerly do.

Another thought that the union of the second fracture was all right. Another estimated plaintiff’s capacity for labor at SO per cent of formerly. Another thought that a good union was obtained after the second break, but says that some angulation exists at the side of the fracture, with overlapping fragments. That if no operation is performed the discharging calluses may continue for years. He estimated plaintiff’s capacity for work at 50 per cent of what it was formerly.

The physician called hy the plaintiff testified that the union at the break was not good. That fragments of the bone overlapped with ends deviating from the normal axis internally and externally. .That the bone was crooked with the result that plaintiff’s right leg was one and one-half inches shorter than the other. That there are two discharging calluses emanating from the seat of the fracture, and more than two years having elapsed at the time of the trial since the injury, he gave it as his opinion that plaintiff’s condition was not likely to improve but little more in the future. 1-Ie estimated plaintiff’s capacity for labor at 50 or 60 per cent of what it formerly was.

It is our belief that unless an operation is performed and all the dead and infected bone removed, but little improvement may be looked for in plaintiff’s physical condition and fitness for manual labor. He may improve some without an operation, but when and how much is a mere matter of conjecture. The operation, if performed, may leave him in the condition he is now. He walked and stooped at the request of defendant at the time of trial, but declared that he had not done any kind of work since he was injured. He claimed that he had tried a good many times, such as hoeing on a farm, but that standing on his leg for so long as half an hour or an hour at a time pained him. He testified that he was unable to do even light work.

We are satisfied that plaintiff is not able to do any kind of work except manual labor. A man in the condition of plaintiff is not able, in 'our opinion, to do manual labor sufficient to earn his living. His injuries have therefore produced in him a permanent total disability to do work of any reasonable character within the meaning of the Employers’ "Liability Act. He is therefore entitled to the compensation which the law provides in such cases. The judgment appealed from is in our opinion erroneous and must be reversed and judgment rendered in favor of the plaintiff.

The judgment appealed from is therefore annulled avoided and reversed. And it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Gonzalous Perkins and against the Long Bell Lumber Company, Inc., for 60 per cent of plaintiff’s weekly wages of $14.40, said wages to commence May 23, 1924, and to continue for one hundred and seventy-five (175) weeks as fixed by subsection D of Sec. 8, Act 43 of 1922, which is the law governing the case; said wages being subject to a weekly credit of $8.64, commencing with the first week of liability and continuing each week thereafter until the sum of $658.64 has been credited. Said sums due as wages, less said credits, to bear 5 per cent per annum interest from the week each was due until same has been paid; defendant and appellee to pay the costs in both courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No.-
    First Circuit
    GIBSON v. HENSLEY, ET ALS.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625,626.
    The findings of the trial court as to the credibility of witnesses and 'matters of fact where clearly correct are affirmed.
    2. Louisiana Digest — Possession—Par: 20.
    The possessor of property, even though in bad faith, is entitled to recover expenses of repair of roof and fence necessary to preserve the property.
    Appeal from the Parish of Calcasieu. Hon. Thomas P. Porter, Judge.
    Action by Ellen Gibson against Thomas Hensley, et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellee.
    Robert R. Stone, of Lake Charles, attorney for defendant, appellant.
   ELLIOTT, J.

Ellen Gibson and Thomas Hensley each claim to be the sole heir of Annie Bennett.

Thomas Hensley claims that he was her brother, and as such her nearest relative, sole heir at law, and owner of her estate by inheritance from her.

Ellen Gibson claims that she was her second cousin, and as such, her nearest relative, sole heir at law, and owner of her estate By inheritance from her.

Annie Bennett died intestate, leaving no ascendants nor descendants.

Thomas Hensley and Ellen Gibson each obtained orders in ex parte proceedings recognizing them as the sole heir of Annie Bennett and authorizing them to take possession of her estate which consists of. a lot of ground in Lake Charles. As soon as Thomas Hensley obtained the order authorizing him to take possession he sold the property to Mary Cummings.

. Ellen Gibson brought this suit against Thomas Hensley and Mary Cummings, praying to have her heirship recognized and the title from Thomas Hensley to Mary Cummings decreed to be null and void on the ground that Thomas Hensley was not the brother of Annie Bennett, was not related to her, and was not her heir. Thomas Hensley failed to appear, but Mary Cummings did, and set up in defense of her title the heirship of Thomas Hensley, and denied that alleged by Ellen Gibson and called Thomas Hensley in warranty.

Prom a judgment in favor of Ellen Gibson, Mary Cummings appealed.

The people are illiterate colored people, without any family records, but the parties Thomas Hensley, Annie Bennett, Ellen Gibson and the father and mother of Thomas Hensley lived near Patterson in the Parish of St. Mary for many years, and none so old but that there should be people living there who ought to know definitely whether Thomas Hensley and Annie Bennett were in their childhood regarded as brother and sister and born of the same father, and mother, but the testimony on the subject of their relationship is not satisfactory nor convincing. Thomas Hensley did not appear in cou'rt. It is said that he was confined to his Bed with sickness, but his testimony was taken by commission. He testifies to his relationship as alleged in the answer of Mary Cummings, and says that Ellen Gibson was not related to Annie Bennett. Ellen Gibson on her part produced witnesses who testified that she was the second cousin of Annie Bennett and that Thomas Hensley was not related to her. A witness called by Ellen Gibson testified with more certainty than any other on the subject. He was asked:

“Q. Did you ever hear them claim that they were kin?
“A. I knew Scott’s mother, Sue Hensley, she was not her' mother.”

The witness claimed that forty years ago Thomas Hensley was called Scott Hensley, and when he says “she was not her mother,” he meant that Scott’s mother .was not the mother of Annie Bennett.

The same witness supported the claim of Ellen Gibson in the matter of relationship.

The defendant produced a couple of letters. They were not written by Annie Bennett, for she could neither read nor write, but it is claimed that they were written at her instance and that she acknowledged in the letters that Thomas Hensley was her brother. We have considered the letters and defendant’s claims under them, and to our mind they do not satisfactorily support defendant’s claim.

A marriage license and certificate of marriage was produced, and defendant claims that it shows the marriage of Annie Bennett and Jerry Bennett; that Annie Bennett therein named was the sister of Thomas Hensley.

The license and certificate show a marriage between Jerry Bennett and Mrs. Annie Thomas, and the marriage is signed by Mrs. Annie Thomas, by making her mark. To our mind it shows nothing favorable to defendant.

The District Judge for written reasons given, believed the testimony adduced in support of the claim of Ellen Gibson, and did not believe that adduced in support of the claim of Thomas Hensley.

We are unable to say that he erred, and think he was right.

Mary Cummings testified without evidence to the contrary that she expended $25.00 in repairing the roof of the house and $15.00 in repairing the fence, and it appears that these expenditures were necessary for the preservation of the property. She prays for relief in this respect, and even though she was in bad faith she is entitled to recover sums expended in preserving the property. Quaker Realty Co. vs. Bradbury et al., 123 La. 20, 48 So. 570; C. C. Arts. 2314, 3453.

The judgment appealed from recognizing Ellen Gibson as the sole heir of Annie Bennett, and as such the owner of her estate, and holding that Thomas Hensley was not her heir and that the title from Mary Cummings is for that reason null and void, is affirmed, but it is ordered that before Ellen Gibson takes possession that she pay to Mary Cummings forty dollars.

As thus amended the judgment appealed from is affirmed. Mary Cummings to pay the costs of the lower court, Ellen Gibson the cost of this appeal.


author: WESTERFIELD, J.

text:
    No. 11,357
    Orleans
    CONNELLY v. RICHMOND
    (April 23, 1928. Opinion and Decree.)
    (May 7, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 16.
    Under Act 236 of 1920, an unlicensed real estate agqnt cannot recover a fee or commission for his services.
    2. Louisiana Digest — Brokers—Par. 22, 23.
    Where in a separate paragraph plaintiff alleges, that he is a bonded and licensed real estate broker, and in an articulated answer defendant denies the allegations of this paragraph for want of sufficient information, the question of plaintiff’s capacity to sue is sufficiently challenged and no special plea is necessary. The failure to prove plaintiff’s capacity under such pleadings must result in a non-suit.
    Appeal from the First City Court of New Orleans, Section “C.” Hon. Wm. V. Seeber, Judge.
    Action by William E. Connelly against Olivia Clark Richmond, widow of Frank Richmond.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. D. Dressner, of New Orleans, attorney for plaintiff, appellee.
    C. Macalusa, of New Orleans, attorney for defendant, appellant.

      CLAIBORNE, J. Dissents.
   WESTERFIELD, J.

This is a suit by a real estate agent for a commission.

In the first paragraph of his petition he alleges that “he is a licensed and bonded real estate broker of this city.” Defendant in her answer denies for want of information “the facts set out in the first paragraph of plaintiff’s demand.”

There is no proof in the record that plaintiff is licensed or bonded and we are asked to dismiss his suit in conformity with Section 19 of Act 236 of 1920, reading as follows:

“Be it further enacted, etc., That any persop, firm, co-partnership, association or corporation, who has not been licensed in accordance with the provisions of this act shall not be allowed to recover any fee, claim or charge for brokerage in the courts of this State.”

Plaintiff’s counsel direct our attention to the fact that no special plea has been filed challenging plaintiff’s qualification or capacity. No special plea was necessary. The allegation that plaintiff was qualified was denied articulately, as required by the pleading act and he was put upon proof of that fact in the same manner as relates to other facts in issue, the proof of which was essential for his recovery.

See Broussard vs. Rosenblum, 5 La. App. 245, and authorities there cited.

Moreover, the mandatory language of Act 236 of 1928 is addressed to the “the courts of this State” and they are admonished that unlicensed agents “shall not be allowed to recover” a fee or commission.

Under the circumstances and for the reasons assigned, the judgment appealed from is reversed, and it is now ordered’ that plaintiff’s suit must be dismissed as of non-suit.


author: LECHE, J.

text:
    No.-
    First Circuit
    BRENARD MANUFACTURING CO. v. GREEN, ET AL.
    (March 7, 1928. Opinion and Decree.)
    (May 8, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Fraud — Par. 10; Fraudulent Conveyances — Par. 127. ,
    Where fraud and error are charged, parol testimony is always admissible to avoid and annul a contract.
    2. Louisiana Digest — Fraud—Par. 1, 2, 10.
    Where parol testimony establishes the fraud by which one of the parties to a contract signed it believing it to be a contract of agency whereas in fact it was a contract of sale, such contract becomes void and non-enforceable.
    Appeal from the Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by Brenard Manufacturing Co. against M. Green, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. W. Provensal, of Slidell, attorney for plaintiff, appellant.
    L. Y. Cooley, Jr., of Slidell, attorney for defendant, appellee.
   LECHE, J.

Plaintiff’s demand is founded upon six notes, aggregating four hundred and twenty-two dollars, made and subscribed by defendant under date October 18, 1921, and payable from two to seven months after date. These obligations were ostensibly issued by defendant in compliance with an agreement of even date therewith, said to be a contract of agency, whereby defendant was given tto exclusive right to sell certain reproducing musical instruments called “Golden Throated Claxtonolas’’ in the town of Slidell, Louisiana. The contract does not vest mandatory authority of any kind upon the defendant, but merely gives him the exclusive right to sell the “Golden Throated Claxtonolas” in Slidell, and in order to exercise this exclusive right, he first had to buy three of these golden throated instruments and give his notes for their purchase price:

The written contract is in the shape of a printed proposal which plaintiff’s solicitor presents to a prospective customer and when the solicitor succeeds in inducing the customer to sign it, the proposal is then sent to plaintiff’s home office in Iowa City, Iowa, where it is accepted and becomes a completed contract between the parties. According to the wording of the proposal, the agreement is called an agency contract and it is to remain in force for the term of three years. The retail price of the instruments ordered therein, is said to be five hundred and sixty-two dollars but the customer is to give notes in payment thereof, only amounting to four hundred and twenty-two dollars ($422.00). There are other stipulations in the contract such as furnishing on the part of the customer, names of prospective buyers to whom plaintiff might send advertising matter, display of the instruments by the customer in his place of business, the right of plaintiff to send a special salesman in the customer’s territory to promote the sale of the claxtonolas and finally a stipulation that the customer cannot countermand his order.

Defendant does not deny that he signed the printed proposal, and also the notes herein sued upon which were originally attached to the proposal, but his defense is grounded on the allegation that his signature thereto was obtained through fraud and misrepresentation.

The evidence shows that the proposal and the notes were signed by defendant on October 18, 1921, and were soon thereafter mailed to plaintiff company by J. F. Walker, who was then acting as its solicitor. Plaintiff in due time acknowledged receipt o.f the papers and wrote defendant that his proposal was accepted. Defendant then wrote plaintiff on November 4th to inquire whether Walker had informed it of the agreement whereby the term mentioned in the proposal was to be shortened from three years to sixty days, and plaintiff replied that it knew nothing of any such agreement.

Defendant testified in substance that he was in business in the town of Slidell when a man calling himself Walker and claiming to represent the plaintiff company, came to him and wanted him to take the agency for the sale of phonographs for the term of three years. He refused to accept and to bind himself for that length of time, and after some discussion made a counter proposition that he would try for a period of sixty days, and if at the expiration of the sixty days, the phonographs proved to be good sellers, he would figure with him (Walker) on another contract. Walker said he could not do that, but that he would change the contract where it reads three years and make it read sixty days. Walker thereupon told defendant to try at least three different models of the machine as that would constitute a stock. He then asked defendant how much insurance he carried and defendant told .him he carried none for the reason that the rate of premium in the building which he then occupied, was, on account of exposure, entirely too high. Walker then said it was against the rules of the plaintiff company to place stock in an uninsured building. Walker then said that if defendant would sign the notes for sixty days, plaintiff would hold them as security while the machines were in defendant’s possession and that defendant would only have to pay the notes in the event the building and machines were destroyed by fire, and that if at the end of sixty days the machines were unsold, defendant could ship them back to plaintiff. Upon these representations by Walker, defendant then signed the proposal and the notes which were all printed on the same sheet of paper.

The testimony of defendant which appears uncontradicted in the note of evidence, together with the designation of “agency contract” in bold type on the printed proposal, warrant the conclusion that defendant signed these documents with the understanding that the golden throated phonographs were to be received by him on consignment, as agent of plaintiff, and that defendant did not then know that he was purchasing the instruments outright and would become unconditionally liable for the price of the same. Defendant’s conduct shortly after signing the proposal and the notes, confirms this finding, for as soon as he heard by mail directly from plaintiff he wrote on November 4th, or some two weeks later, inquiring from plaintiff whether Walker had reported the contract agreed to by him. This inquiry was made in good faith as appears from the language of the letter, and while it may be said to be a self-serving declaration, it was made at a time not suspicious and is admissible in corroboration of defendant’s testimony.

There is no question in the present case of the admissibility of evidence in contravention of Art. C. O. 2276 to prove a contemporaneous verbal agreement, which conflicts with the terms of another agreement which is in writing and signed by the parties. Here there is but one agreement and there is no claim or contention to the contrary, so that there is no conflict in defendant’s position with the decision in the case of the same plaintiff vs. Levy, 161 La. 496, 109 So. 43. The real question is whether that agreement is the one in writing or the one. understood by defendant and claimed by defendant to be the true and real agreement.

It is a fact that defendant signed the written agreement, but he charges that his signature was obtained thereto by fraud and misrepresentation. He signed a contract of sale but was fraudulently and falsely led to believe that he was signing a contract of agency, and therein lies the fraud and misrepresentation. Where fraud and error are charged, parol testimony is always admissible to avoid and annul a contract, and where parol testimony establishes such fraud, the contract becomes void and non-enforeeable.

The trial Judge rendered a judgment which rejects plaintiff’s demand. The evidence seems to support his conclusion, and there is therefore no reason why the judgment should be reversed.

It is therefore ordered that the judgment herein appealed be affirmed.


text:
    No.-
    First Circuit
    BRANDON, ET AL., v. GOTTLIEB, ET AL.
    (April 11, 1928. Opinion and Decree.)
    (May 8, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Transactions and Compromise — Par. 4, 5, 7, 15.
    Where petition states that plaintiffs accepted money offered to them as a gift and signed a receipt exonerating defendants from liability for their alleged negligence, under error superinduced by the deception practiced upon them by the defendants, it can be assumed that there was no compromise agreement and no tender of the money received was necessary. Petition states a cause of action against which an exception no cause of action will be overruled.
    Appeal from the Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Joseph Brandon, et al., against Lewis Gottlieb, et als.
    There was judgment sustaining exception of no cause of action of defendants and plaintiffs appealed.
    Judgment reversed and case remanded for trial on its merits.
    Taylor and Parker, of Baton Rouge, attorneys for plaintiffs, appellants.
    J. C. Hollingsworth, of New Orleans, and Sanders and Gottlieb, of Baton Rouge, attorneys for defendants, appellees.
   LECHE, J.

The appeal in this case is from a judgment maintaining an exception of no cause of action.

The allegations of plaintiffs’ petition, pertinent to the determination of the law question at issue, show in the main, the following facts which must, for the purpose of passing upon the exception, be accepted as true.

The petition charges that the minor son of plaintiffs, aged ' about fourteen years while in the pursuit of his lawful duties, was killed by an elevator through the gross negligence and want of care of an employee and servant of said Gottlieb, whose duty it was to operate said elevator in an establishment controlled and conducted by Gottlieb. Plaintiffs further charge that shortly after said accident, Louis Gottlieb and the Metropolitan Casualty Ins. Co., insurer, under an indemnity insurance policy in favor of said Gottlieb, through their agents, called upon plaintiffs and induced them by fraudulent and false representations to sign a document called a release from liability and a receipt for three hundred and fifty dollars. That of this amount plaintiffs were paid one hundred and seventy-one dollars in cash, and the balance thereof was retained by said Gottlieb and the Insurance Company for alleged medical, hospital and funeral expenses, amounting to one hundred and seventy-nine dollars. They further charge that the said agents of defendants represented to them that their son' had been killed through his own recklessness and negligence (that ha had opened the door of the elevator shaft from the outside and jumped on top the elevator, that there was no eye-witness to the accident except the operator of the elevator; that if the plaintiffs sued they would not be able to recover anything; all of which statements and representations were untrue and that the same were made to induce plaintiffs so sign a release from any liability on the part of said defendants. That said defendants knew at the time, that said statements and representations were untrue, and that plaintiffs, in ignorance of the real facts were pursuaded to accept three hundred and fifty dollars as a gift, if they would immediately sign a release and a receipt for the money. That plaintiffs are ignorant old colored people, did not know the real facts, were not advised of their legal rights, but were deceived and induced by the misrepresentations of defendants, to sign the release from liability, which was presented to them, and to accept as a gift the sum of three hundred and fifty dollars.

Defendants’ exception of no cause of action is aimed at the lack of any allegation by plaintiffs, that they offered to return or tendered to defendants the return of the three hundred and fifty dollars which they acknowledge to have received from them. Defendants contend in support of their exception, that no one may avoid or set aside a contract without first tendering to the other party, that which he may have received under the contract.

This principle is imbedded in our jurisprudence. A contract must stand or fall as a whole. No one can retain the benefits under a contract and lawfully avoid its consequences. There will be restitutio in integrum. The party who wishes to avoid the consequences must first offer to restore the other to the. situation he occupied previous to the contract. Although we are not referred to any statutory law to that effect, we believe that this is an elementary rule in jurisprudence. The Civil Code, Art. 1913, provides that in order to enforce a commutative contract or to secure damages for its non-performance, one must first tender to perform his part of the obligations under the contract, but we are not referred to any article providing that in order to set aside a transaction one must. offer to return that which he may have received when the transaction was entered into, and for that reason, we say that such a rule originated in jurisprudence and is solely founded upon equity. Our Supreme Court substantially so held in the'case of Germaine vs. Mallerich, 31 La Ann. 372, where it says that “it is purely an equitable rule, and would be abused by allowing wrong-doers to avail themselves of it as a condition precedent to the undoing of their own illegal acts.”

Transaction or compromise is defined in Art. 3071 C. C., as an agreement between two or more persons, who, for preventing or putting an end to a law-suit, adjust their difference by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. It is a contract which when voluntarily entered into, is binding in law and in equity and the question which primarily presents itself under the pleadings in this case, is whether the allegations of plaintiffs’ petition disclose a contract of that nature.

Plaintiffs do not say that they entered into a contract of compromise, though’ it may be inferred that they might have so done. But they do say that they received money which was offered to them as a gift and which they accepted under a false impression created upon their minds by the deception of defendants, that they were pressed to accept the money at once and before they could ascertain the real facts. Consent obtained under such conditions, is obtained by fraud and is no consent at all. It can well be appreciated that ignorant and impecunious persons may be readily duped into believing false statements of the kind and made under the conditions alleged in plaintiffs’ petition. It would be a monstrous doctrine to hold that as a condition precedent, ignorant and impecunious persons thus imposed upon, should be compelled to return to the imposters who have thus deceived them, the money which they unwittingly received and which they are financially unable to return, before they are allowed to expose the fraud and deceit practiced upon them. It would be prostituting a legal principle founded upon equity, to permit it to be used to defeat the ends of common justice.

We have found no decision of our own Supreme Court directly applicable to the facts as narrated in plaintiffs’ petition. In Ackerman vs. McShane, 43 A. 507, 9 So. 483, it was held that before avoiding a compromise, the complainant must tender or return that which he has received under the compromise, but that case is distinguishable from the one at bar. , In Germaine vs. Mallerich, 31 La. Ann. 372, the Supreme Court said that a purchaser in bad faith is not entitled to a tender of what he has paid, before being sued for the recovery of the property, and Johnson vs. Dunbar, 26 La. Ann. 188, is therein quoted as authority. In Lampkins vs. V. S. & P. R. R. Co., 42 La. Ann. 997, the Court held that it must affirmatively appear that all the requirements of the Code have been strictly complied with in order to constitute a compromise, and it further held that an agreement lacking these requirements could not he pleaded as an estoppel.

We do not believe that the allegations in plaintiffs’ petition justify the conclusion that they entered into a compromise They do not ask that such an agreement be avoided or annulled by the Court, but they assume that there was no such agreement, and they say that they accepted money offered to them as a gift and signed a receipt exonerating defendants from liability under error superinduced by the deception practiced upon them by the .defendants.

We believe that the judgment appealed from should he reversed, defendants’ exception should be overruled and this case should be remanded for trial on its merits, and it is so ordered.


author: MOUTON, J. MOUTON, J.

text:
    No.-
    First Circuit
    FLEMING v. SINGLETARY
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 340.
    Where the testimony of witnesses is supported by facts and circumstances that the words “full payment for oxen” were not on the check that fact must be taken as proven regardless of some testimony to the contrary.
    2. Louisiana Digest — Possession—Par. 28; Acts — Par. 50; Pleading — Par. 123.
    Although parol testimony, is inadmissible to prove title or possession of land for the purpose of obtaining damages from inexecution of an oral agreement for the sale of land, nevertheless, where iparol evidence, unobjected to, is introduced to prove possession, damages for the expenses of improvements can be proven and recovered.
    Appeal from the Parish of St. Tammany. Hon. Prentiss Carter, Judge.
    Action by M. L. Fleming against R. M. Singletary.

      There was judgment for plaintiff and defendant .appealed.
    Judgment affirmed.
    Harvey E. Ellis and Robt. E. Ellis, Jr., of Covington, attorneys for plaintiff, appellee.
    Morgan and Simmons, of Covington, attorneys for defendant, appellant. ■
   MOUTON, J.

Plaintiff alleges that he sold on January 30, 1925, eighteen oxen, two log wagons, yokes, etc., for $1150.00, of which $800.00 was paid cash, and for $350.00, balance of the purchase price, defendant obligated himself to convey to plaintiff a tract of nineteen acres of land, which is described in his petition. He also alleges that he was placed in possession of the land by the plaintiff, and expended the sum of $169.00 in valuable improvements on the property. He does not allege that he has a title in writing and is not suing for a specific performance. His demand is for the recovery of the $350.00 on the sale, the balance alleged to be due on the purchase price, and for the value of the alleged improvements. The court rendered judgment for $425.00, $75.00 thereof being for improvements.

The contention of the defendant is that $800.00 was the price of' salé for the oxen, wagons, yokes, etc., which plaintiff alleges amounted to $1150.00. Defendant, it is shown, gave plaintiff a check for $800.00 on the date the deal was completed. This check, defendant claims, was in full payment for the outfit he purchased, and that he is in no way liable for the balance of $350.00 on the sale, for which plaintiff is asking for judgment with the additional sum of $169.00 for the value of the improvements. Plaintiff is very positive in his testimony that the sale was for $1150.00, that $800.00 was paid cash in part payment, and that the $350.00 balance of the purchase price was to be paid by the transfer of the tract of land as hereinabove stated. He now disclaims ownership of the land, and is merely asking for said balance of the purchase price. The father of the plaintiff, and one Tony, apparently a disinterested witness, testified that defendant had admitted to them he had paid $1150.00 for the property in question.

It is shown by other witnesses whose veracity we have no right to impugn, that the sum of $1150.00 was a fair price for the property. The fact is that Jenk, a witness for defendant and who has no interest in the result of this suit as far as the record discloses, says that he offered to plaintiff $1000.00 cash for these wagons, yokes, bows and chains, and that the offer was refused. If such be true, as there is no good reason to otherwise believe, it would be irrational to conclude that plaintiff would have sold that property to defendant for $800.00. It also appears that plaintiff was put in possession of the land soon after the transaction for the sale of the property, and that he remained in possession up to the time of the institution of this suit, and for more than a year after the deal had been effected. We refer to this fact because defendant claims in his testimony that by a separate contract made in the month of February or March, following the date in January when the outfit was sold, he. then agreed to transfer these nineteen acres of land for $350.00; that this was an agreement independent of the other and by which he had never agreed to transfer this land as part of the $1150.00.

If the agreement had been in reality that for which defendant is contending, it would be difficult to explain why he should have left plaintiff over a year in possession before asking for the execution of a sale for the transfer of title. The reference is not made to establish by this circumstance a transfer of title, but merely to show that possession was allowed to remain with plaintiff for that period of time, because as we see it, a balance of $350.00 had been left unpaid on the original obligation defendant had incurred as the purchase price of the outfit.

The check for $800.00 which defendant claims was in full payment of the purchase price was produced in evidence. On its face it bears the words “full payment on the oxen,” as testified to by the witnesses in the case.

Plaintiff, who, it is shown, was cautioned by defendant to read the check when it was given to him, says the words above quoted were certainly not on the check at that time. Mrs. Richard Fleming, a sister-in-law of plaintiff, says she saw the check in her home in January, 1925; that as it was for $800.00 which she considered a very large amount, she read it carefully and she is certain that the words “full paynjent” were not on the check. Defendant claims they were there when the check was originally issued. There is here a sharp conflict in the testimony of these witnesses. Obviously the District Judge believed the testimony of plaintiff and Mrs. Fleming, his sister-in-law, on this question.

Here it will be noted, there are two witnesses for plaintiff against one for defendant on this disputed fact, but even if there were the testimony of one witness against that of another, as the issue resolves itself into a conflict of testimony, it is well established that an appellate court will not, in such a contest interfere in the conclusion of fact arrived at by the trial Judge, who is in a better position to pass on the credibility of witnesses than are the judges of appellate tribunals. Besides, the testimony of plaintiff and of Mrs. Fleming entitles it to more credence than that of defendant on the subject above discussed because it is supported by the facts and circumstances of the case above commented upon, and which show that the price for the outfit was $1150.00, and therefore discredit the testimony of defendant that he had written on the face of the check at the time of its issuance the words “full payment for oxen.” The contract for the sale of oxen, etc., which is in excess of $800.00 in value, we find to be fully proved by the direct evidence of the plaintiff, the admissions of defendant, and the corroborating facts and circumstances to which we have hereinabove referred. This brings us to the consideration of the next question involving the right to claim the value of the improvements placed by him on the land.

Counsel for defendant objected to parol evidence to prove the value of the improvements. He cites Darden vs. Nolan, 4 La. Ann. 374; Marionneaux vs. Edwards, 4 La. Ann. 103; Anderson vs. Smith, 4 La. Ann. 525; Bradford vs. Cook, 4 La. Ann. 229, and other decisions in support of his contention that this parol testimony was inadmissible.

The principle announced in those decisions is that in the alienation of lands and improvements parol evidence is not permissible to establish title, and is also inadmissible to prove the damages resulting from the inexecution of the contract. In this case, it 'was proved without objection, that plaintiff had been put in possession by defendant and remained in possession to the institution of these proceedings. While detaining the premises under that possession, he made the improvements on the land. Under such a state of facts it cannot be said that the improvements so made were in the nature of darqages which flowed from the breach of the contract by' the defendant. If defendant bad objected to the proof of possession evidence of possession would have been admissible as evidence of a fact or circumstance to show that under the contract as hereinabove discussed, the price agreed to between the parties was in reality for the sum of $1150.00, and was not for $800.00 as claimed by defendant. But possession would have been inadmissible to show its nature with a view of claiming the value of the improvements.

In 4 La. Ann. 229, Bradford vs. Cook, Tutor, this question was directly presented to the court. In that case which was also based on an alleged verbal agreement for title to a tract of land, plaintiff, as in this case, was asking for the value of his improvements, and claimed to be a possessor in good faith, and in which he contended that though he had no titlé, his evidence should have been admitted to prove the nature of his possession, and his claim for the improvements. In passing on this controverted point the court said:

“This is only alleging in another form that it should have been admitted to prove his title, because unless there was a title, he could not prove his possession under it.”

If defendant had objected to the proof of possession no parol evidence would have been admissible to prove it. As title to real estate can be established by parol, if not objected to, possession flowing from such a title is equally provable by parol if admitted without objection. Here, it was introduced without objection, and forms a large part of the evidence in the record. The fact is that plaintiff remained for over a year and a half in possession and up to the bringing of this suit. During his occupancy of the premises under that character of possession to now deny him the right to recover his expenses for improvements that are of benefit to the land, would be permitting defendant to enrich himself at the expense of plaintiff, in violation of a fundamental maxim of equity and law.

We therefore hold that plaintiff has a right to recover for these improvements, but we find that the court has awarded him their just value and that he is not entitled to an increase, as he is asking for on this appeal. The court rendered judgment for $425.00; $350.00 for balance of the purchase price of the outfit and $75.00 for the improvements. This judgment is legal and equitable, and is therefore affirmed with costs.

ON APPLICATION FOR REHEARING.

MOUTON, J.

In his motion for a rehearing defendant complains of most of the controverted issues in this case which were disposed of by us adversely to his contentions. His main contention is directed against that part of our opinion where we held that as defendant had not objected to the introduction of parol evidence by plaintiff to show that he had been placed in possession of the land, he had the legal right to establish the value of the improvements he had made thereon, and to recover therefor.

In support of his contention that he had made proper objection at the very threshold of the trial to exclude such parol evidence, counsel for defendant quote their objection thereto which is as follows:

“Counsel for the defendant objects further to any parol evidence relative to any alleged agreement in connection with the sale of real estate for the purpose of establishing an alternative demand as herein sued for.”

This objection was overruled by the court. Immediately thereafter appears the following in the record:

“It is agreed by both counsel for plaintiff and defendant that this objection shall apply to any verbal agreement whereby this plaintiff seeks to establish a contract to sell, barter or exchange any real estate without the necessity of any further objections.”

It will be noted that in the objection which precedes the agreement of counsel as to the proper application of the objection, the language following is used: “to any parol evidence relative to any alleged agreement in connection with the sale of real estate for the purpose of establishing an alternative demand.” It is obvious that this objection to any .parol evidence relative to an agreement for the sale of the real estate, could have no possible reference to the value of the improvements which were placed on the land long after plaintiff had taken possession and in anticipation of a prospective purchase as part of the outfit he had transferred. In the concluding part of the objection of counsel for defendant above reproduced, we find the following:

“For the purpose of establishing an alternative demand as herein sued for.”

Counsel very skilfully refers in his brief to the words: “An alternative demand as herein sued for.” Evidently he refers with emphasis thereto because in the alternative prayer of plaintiff’s petition, judgment is asked not only for $350.00, the balance which was due on the unpaid price of the outfit, but also for the $169.00, the alleged value of the improvements. The objection however, had no reference to the amount asked for these improvements, as it was clearly leveled at “any parol evidence relative to any alleged agreement in connection with the sale of any real estate.” It is not possible if we are to be governed by any rule of sound reason to say that the objection so entered could have any possible reference to the proof for the value of the improvements which were not thought of or did not in any way enter the minds of the parties when the contract was made between them.

The agreement of counsel as to the application of the objection, above reproduced, also shows quite clearly what was the purpose that prompted the objection. We say this, because the following is in the agreement:

“This Objection shall apply to any verbal agreement whereby this plaintiff seeks to establish a contract to sell, barter or exchange any real estate, without the necessity of any further objections.”

There, the words: “To establish a contract to sell, barter or exchange any real estate” were unquestionably intended to refer to the alleged barter, sale or exchange of the 19 acres of land in part payment for 'the outfit, and cannot be made to apply with any show of reason or logic to the possession of the land fqr the purpose of establishing the value of the improvements, which was certainly not contemplated when the contract was made in reference to this sale, barter or exchange. It is also proper to note in connection therewith, that it is stated in that agreement of counsel that the objection should be given its intended application “without the necessity of any further objections.” After this objection was so entered in the record, plaintiff freely and without the slightest intimation of any obligation on the part of counsel for defendant, proceeded to prove his possession of the land. After he had fully established that possession, he thereafter offered to show the amount he had expended for the improvements, it was then chat defendant took occasion to. urge his objection which he is now strenuously pressing before this court. In the agreement hereinabove copied it will be observed that it was stated that the objection would apply thereafter “without the necessity of any further objection.” If the original objection had been intended to apply to the possession of the land,' or to the value of the improvements, no objection whatever would have been subsequently needed for the exclusion of the evidence offered to prove the value of these improvements. Taking the issue from any angle it is impossible to hold otherwise than was held by us in our original opinion, that defendant did not object to the proof of possession, and that plaintiff was entitled to recover the value of improvements, otherwise defendant would be permitted to enrich himself at the former’s expense.

We have again gone over this point at length being prompted by the desire of not denying defendant any of his rights if he had really made the proper objection for the exclusion of the evidence of possession, but find no reason to disturb our original conclusions on this question, nor on the other contentions which were submitted in the application for the rehearing and in the brief accompanying it.

The rehearing is therefore refused.


author: JONES, J.

text:
    No. 11,358
    Orleans
    SCHLUTER v. GENTILLY TERRACE CO.
    (June 4, 1928. Opinion and Decree.)
    (June 18, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 36, 62, 63, 324.
    Under Civil Code, Arts. 1935, 2117 provisions in contract of sale of land that vendor could retake land and at the same time retain installments already paid was void.
    2. Louisiana Digest — Sales—Par. 324, 334.
    Where buyer had defaulted in payments, seller could under Civil Code, Arts. 2045, 2046, cancel agreement, but could not retain amounts paid.
    Appeal from Section “C,” First City Court. Hon. Wm. Y. Seeber, Judge.
    Action by Paul Schluter against Gentilly Terrace Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Prowell, McBride, and Ray, of New Orleans, attorneys for plaintiff, appellant.
    Daly and Hamlin, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sues for two hundred sixty ($260.00) dollars, alleging as follows:

On November 9, 1914, he contracted to purchase from defendant three lots of ground in Gentilly Terrace for the price and sum of eighteen hundred ($1800.00) dollars, fifty ($50.00) dollars cash and fifteen ($15.00) dollars each month thereafter, said deferred payments being represented by 117 promissory notes for fifteen ($15.00) dollars each; a bond for deed was signed by both parties; he paid fifty ($50.00) dollars cash and also fourteen notes of fifteen -($15.00) dollars each, making a total of two hundred sixty ($260.00) dollars; the bond for deed provided that upon failure to pay any of the monthly installments when due that the defendant should have the right to appropriate as liquidated damages all the money paid in by him. On April 14, 1922, after plaintiff had failed to make several payments, defendant notified him that if he did not pay thirty days from that date it would exercise its option under the bond and appropriate the amount paid in by plaintiff as liquidated damages.

At the end of thirty days the defendant appropriated the amount of two hundred sixty ($260.00) dollars paid in by plaintiff on the contract, and sold the property to another party.

The defendant answered admitting the contract, the payments, the appropriation of the money and the sale of the property to the third party. Defendant set up as a special defense that plaintiff had abandoned his contract and voluntarily surrendered his money, and that actions of plaintiff in surrendering what he paid in on his contract had cost defendant in taxes and interest damages totaling six hundred fifty and 19-100 ($650.19) dollars.

There was judgment in favor of defendant dismissing plaintiff’s suit, and plaintiff has appealed.

The evidence shows that defendant on January 31, 1917, demanded further cash from plaintiff who had failed for several consecutive months to make the promised payments.

On February 4, 1917, plaintiff replied as follows:

“Gentilly Terrace Co.,
“801 Maison Blanche Bldg.,
“Gentlemen:
“As I have surrendered all I paid on these lots, I consider the matter closed.”

Defendant answered as follows:

“New Orleans, La.
“February 6, 1917.
“Paul Schulter, Esq.,
“823 Aline Street,
“New Orleans, La.
“Dear Sir:
“We beg to acknowledge receipt of your favor of 4th inst., and note your statement that you have surrendered all that you have paid on your lots and that you consider the matter closed. If you will read your bond for deed you will find that you have no such option. We entered into this agreement with you in perfect good faith and we expect and insist that you carry out your part of same. You must, no doubt, realize that if we are forced to place this matter into the hands of our attorneys, that it will only mean additional cost to you, and we trust, therefore, as we have said before, that you will not force this step upon us, but that you will call in during this week and make satisfactory arrangements with us. Failing in this, we shall instruct our attorneys to enter suit against you on Monday, the 12th instant.
“Yours truly,
(Signed) “R. E. E. DeMontluzin,
“Secretary-Treasurer.”'

On February 13, 1917, defendant threatened suit. On August 16, 1921, defendant made demand upon plaintiff for payment of the city taxes on the lots for the year 1921, amounting to thirty-seven and 14-100 ($37.14) dollars, an obligation which plaintiff had assumed in the agreement to sell, beginning on and after January 1, 1914.

On March 27, 1922, defendant notified plaintiff that he was then six years’ delinquent in his payments, and, unless a substantial payment was made by April 10, 1922, the company would be forced to cancel its contract with him.

On April 14, 1922, defendant wrote to plaintiff the following letter:

“Dear Sir: Referring to the bond for deed made to you by this company on November 9, 1914, for lots Nos.- 34, 35 and 36, in square No. 25 of, Gentilly Terrace subdivision of this city, we beg leave to notify you that as you have failed to make payments agreed by you in said bond for deed to be made, to-wit, those which fell due on June 1, 1916, and on the first day of each month thereafter until the present time, we hereby exercise the option given us in said bond for deed to forfeit as liquidated damages, for your failure to make such payments, all payments heretofore made by you prior to your default.
“This is to give you the 30-day notice of our election to take such action as provided in said bond for deed, and we further advise you that at the expiration of the 30 days, we shall return to you all of the unpaid notes given by you, mentioned in said bond; or, if before the expiration of the 30 days you desire to accede to the within action, we shall return to you the unpaid notes at once.
“If you wish within the 30 days to pay the delinquent notes and interest thereon, the contract will remain in full force.”

On May 15, 1922, defendant addressed the following letter to plaintiff:

“Dear Sir: Inclosed herewith you will find 103 promissory notes, being Nos. 15 to 117, inclusive, dated November 9, 1914, being part of a series of notes given by you to the order of this company in connection with a certain bond for deed for lots Nos. 34, 35 and 36, in square No. 2'5 of Gentilly Terrace subdivision of this city, and referred to in our letter to you of April 14, 1922, as being the unpaid notes to be returned to yo.u. Please take note that the return of these notes to you completes the cancellation by us of the agreement existing between us.”

While plaintiff testified that he had no recollection of receiving the letters mailed to him and dated March 27, 1922, April 14, 1922, and May 15, 1922, he does not deny positively that he received them.

On October 28, 1925, plaintiff made a tender to defendant of twenty-six hundred ($2600.00) dollars cash, the amount he calculated as then due under the bond for deed; but the tender was refused by defendant.

On the next day, October 29, 1925, plaintiff sued defendant for specific performance, or in the alternative for two thousand, three hundred eighteen ($2,318.00) dollars, alleged damages caused him by failure of defendant to deliver the lots.

On October 31, 1927, the Supreme Court in Suit No. 27,798, 114 Sou. Rep. 586, affirmed the trial court and dismissed this suit for specific performance, for laches and want of proper tender.

In the course of the opinion the Court uses the following language:

“Plaintiff cannot be permitted to play the role of ‘watchful waiting’ all these years without performing his obligation and to reap, at this late date, the benefit of it in speculative values.”

Shortly thereafter this suit was filed for restitution.

In the case of Heeb vs. Codifer & Bonnabel, 162 La. 139, 110 So. 178, where suit was brought for value of improvements and also' for amount paid in on a bond for deed, containing the exact provision embodied herein, the Supreme Court gave judgment for the amount paid in and also for the value of the improvements.

In the course of the opinion the Court uses the following language:

“We agree with the district judge that the forfeiture clause in the agreement was null and void because not warranted in law, was arbitrary, unreasonable, mnd without consideration. The option granted to the vendor to cancel the agreement to sell in case the purchaser defaulted in any of the payments was but declaratory of a legal right which the vendor has in every sale or agreement to sell.
“ ‘A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagement.’ C. C., Art. 2046.
“ ‘The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.’ C. C., Art. 2045.”

In Alfortish vs. Pailat, No. 7850 of C. of Ap. (Orleans), where the facts were similar to the present, this Court held that the seller might sue for dissolution of the sale, if the buyer did not pay the price, but that he could not keep both the money and the thing sold.

In the course of the opinion the following language is used:

“The same reason for which the vendor cannot demand the price of sale, if he refuses delivery prevents him from keeping the portion o.f the price he has received: want of consideration. It would be manifestly unconscionable for him to retain both the thing sold and the price paid.” Daumois vs. Leeds, 2 La. 360; Burthe vs. Donaldson, et al., 15 La. 390.
R. C. C. 2045 (3040): “On principle, if a contract is rescinded by the vendor even for the vendee’s default, the vendor should restore that which he has received upon it.” 2 Sutherland on Damages, p. 232; 30 Cyc. 1244; Poche vs. N. O. Home Ins. Co., 52 La. Ann. 1291, 27 So. 797.

But it is said that such is the letter of the contract and the defendant ‘craves the penalty and forfeit of his bond.’

That may be but the law of Louisiana will not permit the execution of such a bond and strikes it with nullity for two reasons.

R. C. C., Art. 1893, says:

“An obligation without a cause can have no effect.”

Art. 1896:

“By the cause of the contract in this section is meant the consideration or motive for making it, etc. * *

Art. 1929 (1935) of the Civil Code declares :

"* * * the damages due for delay in the performance of an obligation to pay money are called -interest, the creditor is entitled to these damages without proving any loss and whatever loss he may have suffered, he can recover no more;
“For these reasons the forfeiture clause is illegal and void.”

A similar conclusion was reached by this Court in Sherer-Gillett Co. vs. Wm. J. Bennett, No. 8314, decided June 30, 1922.

Defendant’s able attorney seeks to modify the effect of these decisions, which would ordinarily be controlling on this Court by the following two contentions:

(1) That plaintiff had cancelled his bond for deed by his letter of February 4th, quoted above.

(2) That whether the above contention be true or not the Supreme Court had so decided and this Court was necessarily bound thereby.

In answer to the first contention we deny that one party to a commutative contract can cancel the agreement at his pleasure. Such a cancellation requires mutual consent, a meeting of both minds. Here there was no such consent for defendant specifically refused to be a party to it and in its reply to plaintiff’s statement that he had abandoned his payments and considered the matter closed, defendant wrote immediately refusing to recognize any such abandonment, denying its legality and insisting upon its rights to further payments. Thus, offer to cancel having been made and refused, it vanishes like the witches of McBeth into airy nothingness.

That such was the legal contention of defendant throughout this long period is further shown by their repeated letters, after refusal o.f plaintiff’s offer, either demanding payment of taxes or additional installments, finally culminating in their letter of April 14th, wherein they -treat the contract as still binding, but declare their intention to exercise their contractual right and impose the penalty of forfeiture of past payments within thirty days from date, unless further remittance was made.

To hold that one party to a contract could thus change its status to suit momentary whims would be grossly inequitable and plainly illegal for reasons fully set forth above.

In answer to the second contention of defendant, we reply that we do not interpret the Supreme Court decision as holding that plaintiff’s letter of February 4, 1917, was an accepted cancellation of the contract. The Court in concluding its opinion after refusing specific performance said:

“No demand has been made by plaintiff in his petition for the restitution of the part of the purchase price paid by him.”

This language plainly shows that the Court would have considered such a demand, had one been made and that it did not hold such a demand foreclosed.

But even if the contract be considered cancelled, the decisions quoted above show that plaintiff would still be entitled to return of his money. All of them distinctly so hold, after full consideration— renunciation of right granted under an illegal contract do.es not constitute a waiver of claims for amount paid thereunder.

As defendant does not plead its alleged damage by way of offset or compensation and 4as he does not pray for any judgment thereon, we cannot consider that claim herein.

For above reasons the judgment is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of Paul Schluter, plaintiff, and against defendant, Gentilly Terrace Company, in the sum of two hundred sixty ($260.00) dollars, with legal interest from April 14, 1922, and all costs.


text:
    No. 10,225
    Orleans
    SCHILKEFFSKEY v. RING and RING v. SCHILKEFFSKEY (Consolidated)
    (April 23, 1928. Opinion and Decree.)
    (May 21, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 140, 148, 158, 161.
    Parol testimony is admissible to prove an obligation of a dead man under the provisions of Act 207 of 1906 when the suit was instituted nine months before his demise.
    Appeal from Civil District Court, Division “B.” Hon. Mark M. Boatner, Judge.

      Action by Joseph Schilkeffskey against John B. Ring and John B. Ring against Joseph Schilkeffskey. Cases consolidated.
    There was judgment for Ring and Schilkeffskey appealed.
    Judgment reversed and cause remanded.
    H. W. Robinson, of New Orleans, attorney for Jos. Schilkeffskey, appellant.
    F. Rivers Richardson, of New Orleans, attorney for W. W. Wright, appellee.
   WESTERFIELD, J.

The question presented by this appeal involves the character of evidence necessary to prove the interruption of prescription as against a dead man.

Upon the trial of the case plaintiff offered in evidence certain endorsements on the reverse of the promissory note sued on, which, admittedly were not in the handwriting of the deceased maker, in an effort to show interruption of prescription of partial payments. Upon objection the evidence was excluded and the exception of prescription maintained. Plaintiff has appealed.

As previously stated, the basis of this suit is a promissory note. The note is dated July 31, 1912, and is payable one year after date. Suit was filed May 5, 1920, long after the prescription period of five years had run. The endorsements on the note, which plaintiff vainly tried to introduce in evidence, are dated October 31, 1914, July 31, 1915, July 31, 1916 and April 11, 1917, respectively.

If this evidence were to be admitted, and its effect should establish an acknowledgment by defendant, it is obvious that prescription would have been interrupted. It is admitted that none of the endorsements were in defendant’s handwriting, but insisted that under the provisions of Act 207 of 906, the evidence should have been admitted. This act reads;

“That from and after the promulgation of this Act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknowledgment or promise to pay signed by the debtor; or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”

The act was amended by Act 11 of 1926, but the amendment is without application here.

In the present suit Ring died during the litigation, nine months after suit was filed, and his succession representative carried on the lengthy litigation which followed.

The suit having been filed nine months before Ring’s death, it is argued that it was within one year after his demise as mentioned in the Act of 1906, and in consequence parol evidence was admissible.

It will be observed that the evidence offered was not parol but written and the sole objection to it was that parol testimony was not admissible. It appears, however, that witnesses were tendered, whose evidence might establish an acknowledgment of the debt, and we believe that under the statute referred to the evidence should have been admitted. Hava vs. Cafiero, 157 La. 1009, 103 So. 294. See also Bank vs. Girod, 31 La. Ann. 592; Boullt vs. Sanpy, 30 La. Ann. 496.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that this cause be remanded for further proceedings consistent with the views expressed.


text:
    No.-
    First Circuit
    PIGOTT v. RAYMOND CONCRETE PILE CO.
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing .Refused.)
    (June 4, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 320,516,
    Where the appellee has not taken the legal steps required by Act 112 of 1916, Secs. 3 and 9, in the trial court, an insufficiency of bond alleged is not good ground for the dismissal of the appeal in the appellate court.
    2. Louisiana Digest — Master and Servant —Par. 158.
    ■ Where the evidence clearly shows that out-riggers were to be used as an adequate guard against accident and were provided for the deceased employee who deliberately failed or refused to use them, the accident was not incidental to or growing out of deceased’s employment and his widow cannot recover compensation under the Workmen’s Compensation, Act No. 20 of 1914, as amended.
    Appeal from the District Court, Parish of St. Tammany. Hon. P. B. Carter, Judge.
    Action by Mrs. Antoinette V. Pigott against Raymond Concrete Pile Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Robert S. Ellis, of Amite, and M. C. Rownd, of Springfield, attorneys for plaintiff, appellee.
    Edward Rightor and Eugie V. Parham, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

R. Z. Pigott, husband of the plaintiff and father of her minor child, was employed by Raymond Concrete Pile Company as engineer, for the purpose of operating a hoisting machine. The machine was located on a flat car and was operated by steam power. It was being used at the time in question to unload sand and gravel from cars, and to place the material at some other place desired by the operator. The sand and gravel in the car which was being unloaded, was caught up by a bucket at the end of a seventy-foot boom attached to the machine. When the bucket was full of sand or gravel, it together with the sand or gravel, weighed eight or nine thousand pounds. This weight at the end of the seventy-foot boom exerted a powerful pulling force on the machine. To counteract it, out-riggers were placed on each side of the machine to prevent its being turned over by the lift.

The plaintiff’s petition alleges that said unloading was hazardous, incidental to, and growing out of her husband’s employment, and that he lost his life in the discharge of his duty.

The plaintiff claims compensation at the rate of $20.00 per week for 300 weeks.

There is no dispute about the employment, the work, nor the wages, nor as to how her husband lost his life.

The machine while being operated by her husband on April 1, 1927, turned over, fell on him and crushed him to death. Defendant urges that his death and plaintiff’s loss is not compensable for the reason that the out-riggers were to be used as an adequate guard against the accident that happened, and were provided for him to be used, and that he deliberately failed to use them. That the death of her husband was due to his intoxication at the time of the accident.

There was judgment in favor of the plaintiff for the compensation prayed for. The defendant appealed.

Plaintiff moved in this Court to dismiss the appeal on the ground that the appeal bond was not sufficient in amount.

As the appellee has not taken the legal steps required by Act 112 of 1916, Secs. 3 and 9, the insufficiency alleged is not good ground for the dismissal of the appeal. Durel vs. Buchanan, 147 La. 804, 86 So. 189.

The evidence shows that the deceased was drinking on the morning that he was killed. He was. seen to take three drinks just previous to the accident, and a bottle said to have contained whiskey was found at the place soon afterwards. The evidence on the subject, however, is not sufficient to establish that deceased was intoxicated at the time. Nevertheless, it is not easy to understand his conduct in operating the machine on which he was working with a seventy-foot boom, without riggers, unless he was under the influence of intoxicating liquor.

The plaintiff contends that the machine overturned as the result of the breaking of a king pin by which it was held down to the flat car on which it was located.

A witness, former employee of defendant, who had worked with, and was familiar with the machine, testified, in his opinion, the accident was caused in that way. But, according to the overwhelming preponderance of witnesses and evidence on the subject, all employees of defendant, but who testify straight-forwardly and seemingly without being influenced, the machine overturned because the out-riggers with which it was equipped had not been set in position. The evidence shows that it was necessary to use them in order to prevent just what happened, when unloading sand and gravel with a bucket of the size that was being used with a seventy-foot boom. These out-riggers were part of the machine. They were there at the time and should have been placed in position by plaintiff’s husband, who, as engineer, was in charge of the work he was doing.

A witness testified that the engineer’s helpers should have set out the riggers of their own accord, and without being told to do so by the engineers, but the overwhelming preponderance of the evidence is to the effect that it was the duty of the engineer to see that these out-riggers were in place when it was necessary to use them in operating the machine.

One of the helpers, seeing that the outriggers should have been set, called to plaintiff’s husband, and asked him to let him place them in position, but he declined to do so, stating that they were not necessary. This helper then forthwith sent a messenger to a higher foreman to notify him that the machine was being operated without riggers; the messenger went and reported the fact, but before the foreman could reach the place, the machine had turned over, crushing plaintiff’s husband to death under it.

The burden of proof to show that it is not liable is on the defendant. It seems to us to have been carried with sufficient certainty, and that under the law on the subject, the plaintiff cannot recover.

The judgment appealed from, is, in our opinion, erroneous, and it must therefore be reversed and set aside and plaintiff’s demand rejected at her cost.

The judgment appealed from herein, is, for said reason annulled, avoided and set aside, and plaintiff’s demand is now rejected at her cost in both courts.