text:
    No. 2353
    Second Circuit
    ELLERBE v. LANCASTER AND WALLACE As Receivers of the T. & P. Ry. Co.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 126.
    It is the duty of common carriers to furnish vehicles for the shipment of freight over their lines free from defects which might endanger the safety of the goods and which are suitable for the purpose of transporting merchandise of the character to which the contract of shipping relates.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 132.
    To relieve the carrier of such liability, it must appear that the shipper of the goods voluntarily selected the vehicle himself by virtue of an express contract ov under circumstances which charge him with full knowledge of such defects.

      3. Louisiana Digest — Carriers of Passengers and Goods — ;Par. 123.
    It is the duty of common carriers to know the condition of the vehicles which they furnish for the transportation of freight over their lines, and a shipper has a right to assume that such vehicles are free from defects and safe.
    4. Louisiana Digest — Carriers of Passengers and Good's — Par. 124, 132.
    The mere fact that a shipper has inspected a car in which his goods are shipped and has reported to the agent of the carrier that the car is apparently in good condition, will not relieve the carrier from liability for loss or damage caused by such defects.
    5. Louisiana Digest — Carriers of Passengers and Goods — Par. 124, 132.
    Even in cases where the shipper has voluntarily selected, after inspection, the vehicle for the shipment of his goods, the carrier is not relieved of liability where the defects are latent and not readily discoverable.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Clarence Ellerbe against J. L. Lancaster and C. L. Wallace as Receivers of the Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff shipped a car of cotton seed over defendant’s line of railroad from Robson station to New Roads, Louisiana, in December, 1923. The roof of the car in which the seed was shipped leaked, the seed got wet in transit, and as a result .was damaged to the extent' of $594.46; for which amount plaintiff brought this suit.

The defense, as set out in defendants’ answer, is that:

“The shipper of said cotton seed referred to in the petition, appropriated-the car for the loading thereof without the knowledge or consent of the defendants or any one acting' for or under their authority; that said car was not placed by defendants, its agents or employees for the loading of cotton seed or any other commodity; that the condition of said car was apparent, as being utterly and entirely unfit for shipment of cotton seed therein, which condition was, or should, have been known to the shipper and shipper’s agents or employees, who .loaded said cotton seed; that said car was not tendered to shipper for such shipment, but such car was used by said shipper’s agents and employees without the knowledge or consent of defendants, and defendants are not liable for any damage occasioned by the use of such car for such purpose.”

There was judgment in the lower court in favor of the plaintiff and the defendants appealed.

OPINION

The facts disclosed by the record are as follows:

Robson, where the seed was loaded, is a station on defendants’ line of railroad at which there is no agent. Bills of lading for freight • loaded at and shipped from said point are issued by the defendants’ agent at Gayle and other stations about two miles away.

In accordance with a custom of long standing and by specific instructions issued by defendants’ agents and employees, parties who had freight to be shipped from the non-agency station of Robson appropriated such empty cars as might be found there, loaded their freight into them, went to Gayle and procured a. bill of lading from the agent there.

Cars thus loaded, and for which bills of lading were issued, were picked up by local freight trains and transported in due course.

Plaintiff, having cotton seed to ship, found an empty box ear on the siding at Robson and, according to custom, had his seed loaded therein. Whether he “spotted” or placed the car at the gin or whether that was done by defendants is not made clear by the record. It is in evidence that this was done at times by the shippers and at other times by defendants’ employees.

The seed was blown into the car from the gin.

After the loading was begun and before it was finished, plaintiff went to Gayle and informed the agent that he was having a car loaded with cotton seed, whereupon the agent told him that if the car was apparently in good condition he might continue the loading. Plaintiff left and in a short time went back and told the agent that the car appeared to be in good condition. In the meantime, the agent communicated with another agent, at Lucas, a station on defendants’ line, who informed him that the car had been sent to Robson loaded with household goods.

The agent at Gayle testified:

“I presumed that the car would be O. K. if it was loaded with household goods. I presumed it was all right for seed loading.
“I wouldn’t let a' man ship household goods in a car that wasn’t fit for seed; no sir.”

The agent at Gayle informed plaintiff that the car had been loaded with household goods. The testimony shows that some colored people had shipped in the car not only their household goods but their farming utensils, chickens, and livestock as well.

The agent at Gayle issued to plaintiff the defendants’ uniform bill of lading for the seed.

The testimony establishes beyond question the fact that the roof of the car was in bad condition and leaky and that the seed got wet and spoiled. It is established also that the condition of the roof of the car was not apparent on casual inspection, and that the only way to ascertain its condition was by viewing it from the top. There is testimony to the effect that there was a hole at or near the door of the car, which defect was apparent, and this was noticed by plaintiff; but there is no suggestion that the water which may have gotten to the seed through this hole damaged them.

Under these conditions, defendants disclaimed liability for the damage to the seed on the ground stated in their answer, as quoted above, and, in support of their contention of non-liability, cite the case of Frohlich vs. Pennsylvania Company, 138 Mich. 116, 110 American State Reports 310, 101 Northwestern 223, where the court quoted the rule as laid down by the text writers, as follows:

“Where .the shipper exercises his own judgment, is not deceived or misled by the carrier, and chooses a car for the transportation of his property, the carrier is not answerable for the sufficiency of the car, for in such a case he does not trust to the carrier, nor rely upon the duty of the carrier, but on the contrary freely exercises his right of choice and relies entirely upon his own judgment, so there is no reason for affirming that the carrier was guilty of any wrong.”

This rule was no doubt applicable to the case before the court, but it does not apply to the case at bar. The facts are altogether different. In that case, the consignor shipped a lot of glass in an old coal car with a drop door in the floor opening downward for the purpose of dumping the load. The car was totally unfit for the shipping of glass. When the consignee attempted to unload the glass, a box of it fell through the trap door and was damaged. The carrier was not liable, for the damage, but the court said:

“Upon the record now before us there was an agreement between the Hudincamp Mirror Company (the shipper) and the defendant (the carrier) that the Mirror Company, from among the cars delivered to it upon its sidetrack, might select such as it might deem fit and suitable in which to ship its glass. There is nothing in the agreement contrary to public policy. The Mirror Company knew the' character and weight of the ¡product shipped and knew what kind of cars were suitable for that purpose and agreed to assume the risk of selecting.”

The court said that the testimony showed that the shipper kept in its employ men whose duty it was to inspect all cars and select only such as were suitable. And the court further said:

“An old coal car suitable for shipping coal or like material is. not necessarily suitable for the shipping of glassware. There was no guaranty on the part of defendant that all its cars were suitable in form or structure for the shipment of glass. Under the agreement the Mirror Company undertook to select such cars only as were suitable for its purpose.”

The court had before it a case where the shipper, by agreement, was selecting the car it wanted from among those found on the carrier’s track in its yard and agreed to assume the risk of selecting, and under the circumstances the carrier was not liable.

The courts of other jurisdictions have announced the same principle, as, for instance: where the shipper refused to ac.cept a car tendered him for the shipment of stock and selected another; where a shipper of livestock had his choice of shipping in either a stock car or a box car and chose the latter; injury resulting to the stock due to the character of the car; where the shipper’s attention was called to the condition of the car by an agent of the carrier who offered to procure for him another car, which offer was refused; and in a case where the shipper knew the character of the car in which he was making the shipment and nevertheless accepted it and used it.

In all such cases carriers have been relieved of liability. See annotation in 5 A. L. R., page 112, et seq.

In the case at bar, the shipper did not select the car in which he shipped his goods, nor did he agree to assume any risk. In accordance with custom he made use of one of defendants’ cars which, so far as the record shows, was the only one there, which he found on the track, with the full knowledge and consent of defendants’ agent at Gayle. The agent, before issuing the bill of lad'ing, ascertained that the car had been used to ship household goods, and according to his testimony he assumed that it was safe' for the shipment of seed. The defendants, therefore, accepted the shipment of seed in that particular car and they cannot escape liability for injury to the shipment occasioned by defects in the vehicle furnished, upon the pretext that the shipper had the privilege of inspecting and did inspect the car.

No citation of authority is necessary in support of the general rule that it is the duty of a carrier to furnish a vehicle free from defects which might endanger the safety of the goods shipped and that the shipper has the right to assume that the vehicles furnished are in good condition and safe. It is the duty of common carriers to know the condition of their equipment. They have employees to inspect and repair their cars. It was shown in this case that all cars are inspected at the terminals and, when found out of repair, are either held over for repairs or are sent out marked “In Bad Order”. While one witness testified that this car had on it a “Bad Order” sign, yet the decided preponderance of the testimony is to the effect that no such sign appeared.

Defendants contend that the bad condition of the car “was or should have been known to the shipper”.

The testimony discloses that the shipper did not know the condition of the car nor does it show that its condition should have been known to him. He looked at the car and it appeared to be in good condition. The defects in the roof were not apparent; they could not be detected, except by going on top of the car. The agent who received the shipment at New Roads, Louisiana, testified that he stood in the car and saw daylight through the top of it. If that be true, something happened to it in transit, for the testimony shows that no such defects were apparent when the car left Robson station. The question, therefore, is was the carrier relieved of liability for damage to the freight carried by the defective condition of the car, upon the ground that the shipper made an inspection of the car and reported that it was apparently in good condition, when the defects were not apparent but could be detected only by going to the top of the car, in the absence of an agreement by the shipper to assume the risk.

We do not think so.

In 10 Corpus Juris, page 87, the rule is stated to be that:

“Where, the shipper of the goods voluntarily selects vehicles himself, by virtue of express contract or under circumstances which charge him with full knowledge of their capabilities and defects, relying on his own judgment and not on the duty of the carrier, the carrier is not liable for loss or injury caused by defects, except such as are latent and not readily discoverable.”

So, in the case at bar, if it be true (and it is not) that the shipper voluntarily selected the car under an express agreement to assume the risk, the carrier is liable because the defects in the car “were latent and not readily discoverable”.

The same text writer (10 Corpus Juris, page 88) says:

“The mere fact that the shipper has inspected the car, or knows of the defects, will not exempt the carrier from liability for loss or injury caused by such defects. No duty rests on the shipper to inspect a car furnished by a carrier or to exercise care to know whether the car is in condition.”

The rule thus stated is amply supported by authority.

The amount of the loss claimed by the •shipper is not disputed. The judge of the lower court held for plaintiff, and gave judgment for the full amount of the damage, with costs.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2374
    Second Circuit
    BLASDEL v. McELROY
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 634.
    The decisions of the trial judge, as to the credibility of witnesses, where plaintiff and defendant were the only witnesses, will be affirmed unless manifestly erroneous.

      2. Louisiana Digest — Appeal—Par. 594, 595.
    Where appellant does not argue nor file brief the judgment of the trial court is presumed correct in the ■ absence of error patent on the face of the record.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by Mrs. Sparks Blasdel against W. T. McElroy.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    N. B. Carstarphen, of Shreveport, attorney for plaintiff, appellee.
    C. H. Lyons, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brings suit to recover $250.00, alleged to be due for services rendered by her as a nurse to defendant’s wife.

The defense is a general denial.

There was judgment in the lower court for plaintiff as prayed and defendant appealed.

OPINION

Only questions of fact are involved.

There were only two witnesses called on the trial, the plaintiff and the defendant.

Plaintiff swore positively that she was employed as a nurse for defendant’s wife, that the total sum earned by her, as nurse, together with some small items of expense, amounted to $398.92, and that she had been paid only $148.92, leaving a balance due her of $250.00.

It seems that defendant’s wife was ill at her home -in Shreveiport and that plaintiff was employed as a nurse and" her serv-' ices continued until Mrs. McElroy was removed to Hot Springs.

This much is admitted by defendant, but he says he paid her for her services up to that time.

Plaintiff admittedly accompanied Mrs. McElroy to Hot Springs and remained with her while there.

It is contended by defendant that plaintiff was not employed to accompany his wife to Hot Springs as a nurse but that the understanding was she should go along as a friend and was to be paid only her expenses on the trip.

This is denied by plaintiff, who says she was to be paid regular fees as a nurse while with Mrs. McElroy at Hot Springs.

After her return from Hot Springs, defendant gave plaintiff a check for $50.00 which, he says, was given as a present. She says it was given as part payment on bill, and that more was not paid because defendant said he did not have the cash in bank at that time.

So this is a case where plaintiff and defendant, the only witnesses called, swear against each other. The decision, therefore, hinges on the credibility of the witnesses.

The judge before whom the case was tried evidently believed plaintiff, for he gave her judgment. He heard and saw the witnesses. We have not had that privilege. He was in better position to pass upon their credibility than we are. We rely upon his judgment in that respect.

“The decision of a trial judge who heard the witnesses and was in position to correctly appreciate the testimony, will not be disturbed in the absence of a clear: showing of error.”

Yol. 1, Sec. 634, page 602, La. Dig. and the numerous authorities there cited.

Brugier vs. Todd Bros. Auto Co., 2 La. App. 741.

Florsheim Bros. vs. Pepper Merc. Co., 1 La. App. 31.

Not only that, but since the appeal was lodged in this court defendant, appellant has pointed out no error in the judgment appealed from. He did not argue the case orally and has filed no brief.

The judgment is presumed to be correct, and in the absence of assistance from the appellant, this court will not seek to detect errors therein not patent on the face of the record.

Bynum vs. Lieber, 155 La. 760, 99 South. 590.

Schwan vs. Peterman, 123 La. 732, 49 South. 486.

Arkadelphia Milling Co. vs. Anders, et al., 5 La. App. 191.

Succession of Suner, 5 La. App. 121.

Judgment affirmed with costs.


text:
    No. 2366
    Second Circuit
    CASTLEBERRY v. WEBSTER-BOSSIER LUMBER CO., INC.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Courts—Par. 164.
    Where the amount involved in a case is more than the appellate jurisdiction of the Court of Appeal, it will be transferred to the Supreme Court in accordance with Act No. 19 of 1912.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by T. E. Castleberry against Webster-Bossier Lumber Company, Incorporated.
    There was judgment for defendant and plaintiff appealed.
    Case transferred to the Supreme Court.
    Charles M. Roberts, of Minden, attorney for plaintiff, appellant.
    L. K. Watkins, of Minden, attorney for defendant, appellee.
   ODOM, J.

The amount in controversy in this case is far beyond our maximum jurisdiction.

Defendant sold to plaintiff and another a saw mill and planer and all equipment, 500,000 feet of lumber, more or less, on the yard, tenant-houses, and 580 acres of timber, for a consideration of $11,500.00, of which only $1,000.00 was paid in cash. A note for $1,500.00 was-given and the balance of $9,000.00 was to be paid out of the proceeds of lumber sold. Subsequently, the entire outfit, including the lumber on the yard, was, by verbal agreement, turned over by plaintiff to defendant with the understanding that defendant was to dress and sell the lumber, operate the mill, and whatever profits arose from the sale of the lumber then on the yard and the operation of the mill were to be applied to the payment of plaintiff’s debt to defendant, and when the debt was paid the outfit was to be returned to plaintiff.

Plaintiff brought this suit, alleging that defendant had violated its contract, had converted or was converting the lumber on the yard into money, had not given credit for the proceeds of the sales, would make no accounting, etc. He asked that defendant be ordered to render a full and complete account of its operation of the mill and especially to account for the proceeds of the sale of the 500,000 feet of lumber which was on the yard, and for judgment for $1,000.00 damages; and that the oral contract entered into be declared null and void, and that the parties be placed in the same situation they were before it was entered into.

In a separate and subsequent suit plaintiff sought and obtained a writ of injunction prohibiting defendant from taking possession of all of said property, which, according to the deed produced and filed, was worth in excess of $11,000.00.

We shall not dismiss the appeal, but exercise the right conferred by Act No. 19 of 1912 and transfer the case to the Supreme Court.

It is therefore ordered that this case be transferred to the Supreme Court, and to the end that the record may be properly made up for that court, it is further ordered that the Clerk of this court transmit the record as filed here back-to the Clerk of the District Court of Webster parish, the parish in which the suit was filed.

Appellant to pay the cost of the appeal to this court.


text:
    No. 2319
    Second Circuit
    MOTION PICTURE ADVERTISING SERVICE CO., INC., v. HOLLYWOOD CREAMERY CO., INC., ET AL.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, where clearly correct, are affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Motion Picture Advertising Service Company, Incorporated, against Hollywood Creamery Company, Inc., et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles F. Crane, Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On November 7, 1921, plaintiff and defendants entered into a written contract under the terms of which plaintiff was to ship to the Saenger theatres certain motion picture advertisements featuring the defendants’ dairy products, to be run as s2ides one day in each week for a period of three months, for a consideration of $75.00 per month.

On February 22nd, following, a similar contract was made to run for one year from that date at $15.00 per week.

The latter contract to be subject to cancellation after twenty-six weeks.

Plaintiff brings this suit, alleging that the service was rendered according to the contract, amounting to $1023.75, and that defendants have paid only $420.75, leaving a balance due it of $603.00.

Defendants, Hollywood Creamery Company, Inc., and Herndon, filed a joint answer in which Herndon set up that at the time the contract was signed he was the sole owner of the Hollywood Creamery Company and that about April 17, 1922, he sold to other parties, who incorporated in September of that year under the name Hollywood Creamery Company, Incorporated, and that said corporation “took over the contract of date February 22, 1922, sued on herein”.

■ The corporation’s answer admitted that it did take over said contract and alleged that thereafter on November 2, 1922, the contract was cancelled by mutual agreement, and that on that date he paid the balance due under the contract.

There was judgment for plaintiff against Herndon and the corporation in solido for $603.00, the amount sued for.

Herndon appealed.

OPINION

Only questions of fact are involved.

Herndon’s only defense is that he sold his creamery and dairy business on April 17, 1922, and that the parties to whom he sold took over (assumed) his contract. But he admits that he did not notify plaintiff that he had sold, did not ask for a release from it, and did not notify the Saenger .theatres, where the slides were shown, that he was no longer interested.

He does not plead nor testify that he was released by plaintiff.

It is not denied that plaintiff, through the Saenger theatres, rendered the service called for by the contract; so that under Herndon’s answer and his own testimony he is bound, unless the service has been paid for, and he does not, on his own behalf, make that plea.

But giving him the full benefit of the plea, made by his co-defendant, the corporation, that the contract was cancelled op November 2, 1922, and that the full amount due thereunder was paid, at that time, he is in no better plight, because the corporation failed to make that proof.

Mr. Houston, bookkeeper for the corporation, . said, when called by plaintiff on cross-examination, that on or about November 2, 1922, Mr. Johnson, representing the plaintiff, called on him at his office and that he, Houston, paid him, by check, $130.75, which was the total amount due, and that Johnson agreed to stop or cancel the contract.

But when called for defendants (evidence, page 31), he said that he had asked more than thirty days prior to that time that the contract be cancelled; and he was asked (testimony, page 32):

“Q. Did he (Johnson) promise at that time to stop it?
“A. He promised me that he was going to New Orleans and would see to it; see if he could not have it stopped right away.
“Q. Did he tell you he could stop it?
“A. No, sir.
“Q. Tell you that he would stop it?
“A. No, sir.
“Q. Explain what he told you about it?
“A. He said it was all right, that he was going to New Orleans and would see to it, would get it stopped.”

It will therefore be seen that, according to Houston’s own testimony, there was no agreement at that time, to cancel the contract.

Johnson swore positively that he made no agreement; that the question as to the cancellation of the contract was never mentioned to him by Houston; that he called on Houston to collect) the amount due at that time, which was $478.75, and that Houston said he could not pay the full amount but gave him a check for $130.75, which left a balance of) $348.00.

Houston admits that he took no final receipt and that he did not note on the check that it was in full settlement.

We find no error in the judgment and it is accordingly affirmed. Costs in the lower court to be paid by defendants jointly. Costs of the appeal to be paid by Herndon.


text:
    No. 2322
    Second Circuit
    DAVIS v. AMEREDA PETROLEUM CORP.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Mandate—Par. 8.
    Where recovery depends on proof of agency and there is no proof either that the alleged agent was authorized by the defendant or held out as defendant’s agent, or defendant either tacitly or expressly ratified his acts, there can be no recovery against defendant.
    Appealed from the Second Judicial District Court of Louisiana, Parish of Claiborne. Hon. John S. Richardson, Judge.
    Action by J. L. & D. M. Davis against Amereda Petroleum Corporation.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    T. H. McEachern, of Homer, attorney for plaintiff, appellee.
    J. S. Atkinson, Alex. P. Smith, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover from defendant the sum of $157.1.6 for lumber and other building materials alleged to have been sold and delivered to and used by defendant.

The defense is that defendant did not purchase the materials and is in no way liable..

The District Judge gave plaintiff judgment as prayed for, and defendant prosecutes this appeal.

STATEMENT OP THE CASE AND OPINION

In the spring of 1922 the defendant corporation, then engaged in the oil business in the Haynesville field, employed C. B. Smelser to erect certain buildings on its Baucum and White leases. Defendant’s contract with Smelser, the contractor, called for a “turn key” job. Smelser was to furnish all materials and do all the work for a stipulated price. When the work was completed defendant paid Smelser the full amount agreed upon, $3,120.00.

Smelser purchased the lumber and other materials for the buildings from the plaintiff. The bills for the first' lumber and materials which went into the main buildings were paid. But it seems that later on other materials were needed for some additional improvements on defendant’s property, which improvements were being made by Smelser, the materials necessary for said improvements being purchased by Smelser from plaintiff. These later bills were not paid, and it is for the enforcement of these bills this suit is brought.

Plaintiffs allege in their petition that they

“sold and delivered unto said defendant, through C. B. Smelser, its duly authorized agent for the purpose,” the materials for which they sue.

Plaintiffs do not seek to enforce a lien upon defendant’s property or to hold it responsible for their claim under the building contract law of the state; but they rely solely upon the proposition that Smelser, in purchasing the materials, acted as the agent of defendant and that he purchased for defendant and not for himself.

Mr. Arnold, bookkeeper for plaintiff, testified that Smelser went to his office and asked to purchase lumber and materials for the erection of the building and improvements on defendant’s property and that Smelser told him that defendant would authorize the purchase, and that next morning he received a telephone call from the company telling him to sell Smelser the materials, but he. does not know who, connected with defendant company, called him, did not ask the name of the party, and had no idea who it was; but, he says, he acted upon the telephone call and let Smelser have what he wanted.

He further testified, on direct examination, that defendant paid, by check, the bills for the first materials ordered, and that while defendant did not authorize the purchase of the second bill, that sued for, he relied upon defendant’s authorization of the first bill and its paying therefor as sufficient authority to sell Smelser the second bill for account of defendant.

We note by reference to the bills attached that the account is not made out against defendant but against Smelser.

With reference to the payment of the first bills, Mr. Arnold admitted, on cross-examination, that he did not know whether these payments were made by defendant or not. The payments were made by check, and Mr. Arnold was asked:

“Q. Do you know who drew the check or anything about it?
“A. No, sir; Mr. Smelser brought the check back and I took it to the bank; that’s about all I can remember about it.
“Q. You don’t know anything about who drew the draft?
“A. No, sir.
*****
“Q. Yo.u remember that the Amereda Petroleum Corporation's name was on there, but you have no idea what the amount was?
“A. Yes, that’s right.
“Q. Isn’t it a fact that check was made payable to C. B. Smelser?
“A. That’s the way I remember it. Just like I stated-”

It seems clear, therefore, that defendant did nqt pay plaintiff anything but issued to Smelser its check or draft for account on the contract and that Smelser in turn delivered it to plaintiff in payment for materials which he had purchased.

If there were no other testimony in the record the above would be scant proof on which to fasten liability on defendant. But there is other testimony.

Mr. Oscar Hardy was employed by defendant as general district superintendent and was in charge of operations in the Haynesville field. He testified that he contracted with Smelser to erect the buildings for a stipulated price of approximately $3,000.00, Smelser to furnish all materials; that neither he nor any one else, so far as he knew, acting for defendant, authorized plaintiff to sell Smelser lumber or other materials for its account; that he had no telephone conversation with Arnold, plaintiffs’ bookkeeper, with reference to the lumber or anything else, and, so far as he knew, no one else had; that no one else had authority to make such authorization; and, further, that he knew nothing of plaintiff’s claim until after both he and Smelser had left Haynesville.

Mr. C. N. Bair was employed by defendant as field superintendent. He testified that it was his duty to issue all checks for contracts and work in the field and that checks for such were issued by no one else; that he did not issue to plaintiffs a check to pay for lumber, but that when Smelser completed the work he issued to him a check to cover the full amount of the work done. He further testified that he did not authorize plaintiff over the telephone or otherwise to sell Smelser anything, and that his recollection was that defendant had no telephone in the field at the time.

According to their testimony, Hardy and '■ Bair had full charge at the time..

After hearing this testimony, plaintiffs offered nothing in rebuttal.

Plaintiffs, in brief, cite Flower vs. Jones, 7 Mart. (N. S.) 140, holding that ratification of an agent’s acts may be tacit or express; and Johnson vs. Carrere, 45 La. Ann. 847, 13 So. 195, holding that a principal’s acts should be liberally construed in favor of ratification; and Meyers vs. Simmons, 19 La. Ann. 370, holding that a ' principal who ratifies the acts of his agent cannot afterwards plead want of authority in the agent to act.

No criticism can be offered against these holdings; but plaintiffs’ case falls for lack of proof. There is no proof at all that Smelser was the authorized agent of defendant or that defendant had at any time held him out as its agent; and there is no satisfactory proof that defendant authorized plaintiffs to sell him lumber; and if it be conceded, as plaintiffs would have us do, that Smelser held himself out as defendant’s agent, there is no satisfactory proof that defendant either tacitly or expressly ratified his acts.

The District Court erred in holding defendant liable.

It is, therefore, ordered and decreed that the judgment appealed from be reversed and avoided and plaintiffs’ demands rejected and their suit dismissed at their cost.


author: WEBB, J.

text:
    No. 2921
    Second Circuit
    PATTERSON v. JOHNSON
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    ON MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Appeal—Par. 518, 535. Where the case was remanded for the completion of the record to be returned in thirty' days and no action was taken to have the record completed, the appeal is considered abandoned and, therefore, dismissed.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Isam Patterson against L. H. Johnson.
    Appeal dismissed on motion.
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellee.
   ON MOTION TO DISMISS APPEAL

WEBB, J.

On January 14, 1927, the plaintiff obtained an order of appeal returnable to this court on February 7, 1927, and a transcript was filed ¡here on that date.

The cause was fixed for hearing on May 31, 1927, and, on the case being called, the parties suggested that the transcript was not complete and an order was entered on the minutes as follows:

“The transcript in this case not being complete, it is ordered that the case be remanded to the District Court for completion of the record as the law provides, and that appellant be given thirty days in which to have the transcript completed and filed in this court.”

On the expiration of the period given, the appellant having failed to file the record in this court, appellee moved to dismiss the appeal, and the motion to dismiss was fixed for hearing on October 3, 1927, when the parties submitted the cause without argument or briefs.

It does not appear from our minutes what was the cause of the failure to file the record. It was stated, however, when the cause was remanded for completion of the transcript, that the notes of evidence taken on the trial had not heen filed in the trial court, and the order of remand provided for the completion of the record and for it to be transmitted to this court.

The completion of the record is a matter peculiarly within the jurisdiction of the trial court, and it does not appear that any action has been taken to have that court complete the record, and no proceedings have been taken in that 'court to have the record completed and transmitted to this court; neither has any order been requested for the return day to be extended; and under the circumstances we are of the opinion that the appeal should be considered as having been abandoned.

It is therefore ordered that the appeal be dismissed.


text:
    No. 2311
    Second Circuit
    BEAIRD v. WARD
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Costs and Fees — Par. 59, 62; Appeal — Par. 512.
    Where the defense, from the defendant’s point of view had merit, although the defendant lost, damages for frivolous appeal under Article 907 of the Code of Practice will not be allowed.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster.
    Hon. John S. Richardson, Judge.
    Action by B'. Prank Beaird against John L. Ward.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. P. Langston, of Minden, attorney for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, formerly an employee of defendant, brought this action to recover judgment on a note which bears 8% per annum interest and contains a stipulation for ten per cent attorney’s fees, and for a balance due on salary.

The defense interposed was that plaintiff had agreed with defendant to accept stock in a corporation to be organized by defendant in payment of the note and for a part of his salary.

On trial judgment was rendered against defendant for the face value of the note with eight per cent per annum interest thereon from date of the note and ten per cent on the principal sum and interest as attorney’s fees as well as for the balance claimed to be due for salary, and the defendant appeals, and plaintiff has answered the appeal praying that damages be assessed against defendant as for frivolous appeal.

OPINION

While we find that the defenses interposed by defendant were not established, yet the evidence indicates that there was some tentative understanding as to plaintiff’s accepting stock in a corporation to be organized by the defendant in part payment of the indebtedness, and that the defense interposed had at least from the defendant’s point of view some basis, and although the defenses made were not sustained we do not think it could be said that defendant did not believe his defense was without merit and that the appeal was prosecuted merely for delay.

“Allowance of damages under Code of Practice, Article 907, for prosecution of appeal as frivolous, held unwarranted where it was not manifest that appeal was taken merely for delay, nor that appellants did not believe in the merit of their defense.”

Silberberg vs. Kalil & Mickil, 159 La. 560, 105 So. 620.

The judgment appealed from is affirmed.


author: Per curiam:

text:
    No. 2859
    Second Circuit
    BREAZEALE v. PETERS
    (November 10, 1927. Opinion and Decree on Rehearing.)
    (Previously reported in 6 La. App. 676.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal — Par. 566; Pleading — Par. 62, 71.
    Where defendant filed an exception no cause of action in the lower court but does not appeal or answer the appeal, the exception will not be considered in the appellate court unless an exception no cause of action is filed there.
    Appeal from the First Judicial District Court of Louisiana, Parish of Bossier.
    Action by W. O. Breazeale against Joe Peters.
    Former judgment reinstated on rehearing.
    Robert Roberts, Jr., Frank A. Blanchard, of Shreveport, attorneys for plaintiff, appellant.
    Harry V. Booth, of Shreveport, attorney for defendant, appellee.
   ON REHEARING

Per curiam:

We granted a rehearing in this case, not because we were in doubt about the correctness of our ruling on the exception of no cause of action, but because we reached the conclusion that we could not consider the lower court’s ruling on the exception as defendant did not appeal nor answer the appeal.

See Siragusa vs. Ill. Cent. R. R. Co., 152 La. 745, 94 So. 376.

However, defendant has filed in this court an exception of no cause of action, and that exception is now before us.

Code of Practice, Art. 346.

State vs. Winehill & Rosenthal, 147 La. 781, 86 So. 181.

A reconsideration of the case has not changed our views. We think the exception of no cause of action is well founded and should have been sustained by the lower court.

It is accordingly ordered and decreed that our former judgment be reinstated and made the final decree of this court.


text:
    No. 2316
    Second Circuit
    BAIN-BEAIRD CO. v. BELLEVOIR CO., INC.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Obligations—Par. 165; Reconvention — Par. 4.
    Where the work of repairing an engine was defective because a fly wheel, although cracked, was placed back in the engine in that condition, a reconventional demand will be allowed on account of poor workmanship.
    2. Louisiana Digest — Mechanics’ Privilege —Par. 5, 18.
    Where machinery was fixed to the building with concrete and was part of the building and plant, a claim, properly recorded for work done on the machinery creates a privilege under Act No. 139 of 1922, Section 11.
    (Recent Building Contract Law — Act No. 298 of 1926.- — Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by the Bain-Beaird Company against the Bellevoir Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellee.
    Pugh & Boatner, Byron A. Irwin, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The defendant, The Bellevoir Company, Inc., which was conducting a club house, had installed a second-hand gas engine (which had been reconditioned) in its club house for the purpose of furnishing power for its electric plant, and after the engine had been operated for some time it failed to function properly and plaintiff was called on to examine the engine and make repairs, and on inspection of the engine plaintiff’s workman found that the crank shaft was broken, and concluding that the shaft should be repaired the parties agreed for plaintiff to undertake the work.

In order to remove the crank shaft so that it could be welded it was necessary to remove other parts of the engine, and plaintiff’s workman undertook to remove the crank-shaft, and after welding same to reassemble the engine, and the engine still failing to properly function defendant refused to pay, and the plaintiff filed a lien on the land on which the club house was situated for the amount claimed for the repairs and brought this suit to obtain judgment for the amount alleged to be due with recognition of its asserted lien and privilege.

Among the defenses which were set up and seriously urged it was claimed that the work had been improperly executed and was valueless, and that the engine had been rendered practically valueless and useless by the negligence of plaintiff in removing the crank-shaft, and defendant prayed that plaintiff’s demands be rejected and for judgment in reconvention in the sum of twelve hundred dollars.

On trial judgment was rendered in favor of the plaintiff for the amount claimed, less certain credits, and with recognition of the lien and privilege asserted, and in favor of defendant on its reconventional demand in the sum of seventy-five dollars; from which judgment defendant appealed and plaintiff has answered the appeal, praying that the judgment be amended and defendant’s reconventional demand rejected.

OPINION

We find that the evidence shows that the crank-shaft was properly welded and replaced in the engine, and while the evidence is very conflicting as to whether the work incident to removing the crankshaft and reassembling the engine was properly executed, we think that the weight of the evidence shows that in taking the crank-shaft out the workmen cracked the fly-wheel (the evidence, however, shows that the fly-wheel was already cracked in one place) and that the engine should not have been reassembled or the flywheel placed on the shaft until the flywheel had been repaired.

While the evidence does not show what would have been the cost of repairing the fly-wheel or the charge for reassembling, we do not think that the allowance of seventy-five dollars on the reconventional demand was excessive, and the judgment in effect was merely a recognition of the claim of plaintiff less an allowance for improper workmanship, which we find was authorized under the evidence.

The defendant contends that the lien and privilege asserted should not have been recognized. However, the evidence indicates that the machinery was affixed to the building with concrete, and was a part of the building and plant, and it is shown that the claim was properly and timely recorded as provided under Act No. 139 of 1922, Section 11 (Capital B. & L. Assn. vs. Carter, 164 La. —, 113 South. 886) and we are of the opinion that the privilege created by the statute referred to is applicable. (Swoop vs. Martin, 110 La. 237, 34 Sou. 426; In re Augusta Sugar Co., 134 La. 974, 64 So. 870). And that the judgment properly recognized the privilege.

Howeyer, the decision as to the right to a privilege does not appear to be important here, and could not affect the rights of third parties.

The judgment appealed from is affirmed.


text:
    No. 2375
    Second Circuit
    TODD v. SHREVEPORT PRODUCING & REFINING CORP.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal — Par. 520; Courts — Par. 128.
    The Court of Appeal has no jurisdiction of demands for less than .one hundred dollars exclusive of interest and when lack of jurisdiction appears on the face of the record it is its duty to take notice of same and dismiss the appeal.
    2. Louisiana Digest — Courts—Par. 128.
    An assignee or creditor cannot add interest from judicial demand to the account on which he is suing in the lower court in order to give the appellate court jurisdiction.
    ' Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by F. W. Todd, assignee, against Shreveport Producing & Refining Corporation.
    Appeal dismissed.
    George Thurber, of Shreveport,' attorney for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, Todd, purchased from the Receiver of the Southern Battery Company, Inc., (at a receivership sale) an open account amounting to ninety-four arid 89-100 dollars against the Shreveport Producing & Refining Corporation.

He filed suit in the City Court of the city of Shreveport against the debtor for the amount of the account plus five per cent interest from the alleged date of maturity of the account and the date of his purchase and prayed for judgment against the defendant for legal interest on the amount from judicial demand; and he appeals from a judgment rejecting his demands in toto.

OPINION

This court has not jurisdiction of demands for an amount less than one hundred dollars exclusive of interest (Art. VII, Secs. 29 and 51, Const. 1921), and when the lack of jurisdiction appears on the face of the record it is our duty to take notice of same (La. Dig. Appeals, Sec. 520).

While we find that the weight of authority is that the right to demand interest was acquired as an accessory of the account under Article 2645 C. C. (Sirey, Art. 1692, C. N. No. 5; FuzierHerman, Art. 1692, C. N. No. 16), yet the assignee certainly could not have added the interest which may have been due at the time of his action for the purpose of fixing jurisdiction, and we are of the opinion the assignee is in the same position.

It is therefore ordered that the appeal be dismissed.


text:
    No. 2341
    Second Circuit
    HOLLINGSWORTH v. HOUSTON, EAST & WEST TEXAS RY. CO.
    (November 10, 1927. Opinion and Degree.)

      {Syllabus by the Editor)
    1. Louisiana Digest — Railroads—Par. 88.
    Under Act No. 70 of 1886, after the owner of live stock has proved that it was killed by the railroad, he has proved sufficient to recover, thereafter the burden of proof is on the railroad to prove that those in charge of its train were not negligent, in order for it to escape liability.
    2. Louisiana Digest — Railroads—Par. 84, 86.
    Those in charge of a railroad train must see all that they could see. Therefore, where an animal was killed on a private grade crossing, in broad daylight, in an open field, where the track was straight, even though a cattle guard may have partially obstructed the engineer’s view, the engineer was clearly negligent and the railroad liable.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of DeSoto. Hon. John H. Boone, Judge.
    Action by Lizzie Hollingsworth against Houston, East & West Texas Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Craig, Bolin & Magee, of Mansfield, attorneys for plaintiff, appellee.
    Parsons & Colvin, of Mansfield, attorneys for defendant, appellant.
   ODOM, J.

In July, 1922, one of defendant’s freight trains ran over and killed a bull belonging to plaintiff. Alleging that the animal was killed through the gross fault and negligence of defendant’s employee and that the animal was worth $150.00, she prosecutes this suit to recover that amount.

Defendant disclaims liability on the ground that the killing was unavoidable, for the reason that the bull suddenly walked upon the track so close in front of the train that it could not be stopped with all diligence in time to avert the collision.

Defendant prosecuted this appeal from a judgment against it for the full amount sued for and costs.

OPINION

Only two persons saw the animal killed: Mr. Arkridge, the engineer, and Mr. Rogers, the fireman, who were operating the train. The animal was killed in the day time at a grade crossing on a straight track. The road runs through the Hollingsworth pasture, and to enable stock to cross from one side to the other of the track there is a private crossing. The right of way back in the direction from which the train was coming is fenced with barbed wire up to the crossing. In order to keep stock from going on the right of way around the ends of the right of way fence the defendant erected what is referred to as a cattle-guard, which is constructed of four or five boards or slats six inches wide and about six inches apart, the fence or guard being about five feet high. It is built at right angles to the track and extends from the edge of the track about eight or ten feet back. Under the track and between the rails there is a pit spanned by timbers laid eight inches apart running parallel with the crossties so that stock cannot walk down the track.

Mr. Arkridge, the engineer, testified that the track there is straight; that they were running down grade; that he had shut off steam, and that the train, consisting of eighteen or twenty box cars, was coasting at about eighteen or twenty miles an hour; that he was sitting in the box or cab on the right-hand side looking forward down the track; that the animal approached the track from the fireman’s or opposite side from him and that he did not see it approach; “he appeared right on the track” about forty or fifty feet ahead of the engine; that he applied the emergency brakes but could not stop the train in that distance; that he knew he could not stop in time to avoid killing the animal but thought possibly he could avoid a derailment of the engine. He says he did not see the animal approaching the crossing, but that it “appeared all of a sudden”. And asked:

“Prom where?”

He said:

“I could not say. He must have been standing behind the cattle guard, is all I could figure.
& $ i}f if!
“If the bull had been in the oipen, away from this cattle guard, I would have seen it.”

Mr. Rogers, the fireman, was sitting in his place on the left-hand side, the side from which the animal approached. Asked to state the details, he said:

“We were drifting down hill about eighteen or twenty miles per hour and were approaching this road crossing and the cattle guard was there, and just as we got up to the cattle guard this bull walked on the track. I notified Arkridge to shut down the emergency brake.”

He thinks that he and the engineer saw1 the animal about the same time. Asked if there was anything to prevent his seeing the animal sooner, he said:

“Only the cattle guard would hide it.”

Asked if there was any way to avoid killing the animal, he said:

“No, sir, he was in the middle of the track.”

Under Act No. 70 of 1886, page 109, it is sufficient in order for the plaintiff and owner to recover, to prove the killing or injury of stock:

“* * * unless it be shown by defendant company that the killing or injury was not the result of fault or negligence on its part or the negligent or indifferent running or management of the locomotive or train.”

Sanders vs. Ill. Cen. R. R. Co., 127 La. 917, 54 South. 147.

Mongogna vs. Ill. Cen. R. R. Co., 115 La. 597, 39 South. 699.

The killing of the animal in this case is admitted, and therefore the burden was on defendant to prove that those in charge of its train were not negligent, and it rested its case upon the testimony of its engineer and fireman. They say they did not see the animal until the engine was within forty or fifty feet of it, that it was then on the track and it was too late to stop the train and avoid the killing.

If an animal suddenly goes upon a railroad track in front of a moving train, so close ahead that the train cannot be stopped before hitting it, and it is killed, the company is not liable for the damage, provided those in charge of the train were not negligent in failing to see the animal approaching the track or in such close and dangerous proximity thereto as to make it reasonably certain it was in danger.

The burden in such cases is upon the defendant to show not only that the animal suddenly emerged upon the track and was not seen in time to avoid the accident, but also that the animal could not have been seen sooner by the exercise of due diligence.

It is the duty of those in charge of railroad trains to keep constantly looking ahead for stock which may be on the track or in close or dangerous proximity thereto. The liability of a railroad company in cases of this kind is not based upon what those in charge of the «train do see but upon what they could have seen with due diligence. One is responsible for not only what he actually knows but also for what he is bound to know.

Mongogna vs. Ill. Cent. R. R. Co., supra.

The rule is that those in charge of trains must see what they could see.

The animal in this case was killed on a private grade crossing, in broad daylight, in an open field, where the track was straight. We can imagine no reason why those in charge of the train could not have seen the animal in time to avoid killing it. Granting that the animal was not on the track for any appreciable length of time, it could have been seen while approaching the track and in dangerous proximity thereto. The engineer says that if the bull had been in the open, away from the cattle guard, he would have seen it. But the cattle guard is not such an obstruction as would hide the bull from view. It is a fence only about five feet (high and extends only eight or ten feet back from the edge of the track. It is built of four or five slats six inches wide and six inches apart.

The bull was four years old, and large, and red in color, and should, we think, have been seen through the fence, or it could have been seen while approaching the track before it got behind the fence if the fireman and engineer had been looking ahead. If the bull had been standing still behind the fence and had suddenly began to walk to the track as the train approached, it could have been seen through the fence. Not only that, as the fence was only five feet high and as the engineer and fireman were sitting up in the cab or box, considerably above the level of the track, they could have seen it over the fence if they had been looking. The animal approached the track from the fireman’s side and he could and would no doubt have seen it if he had been looking ahead as he should have been doing. He says when he first saw the animal “he was right in the middle of the track, crossing the track”.

Asked if there was anything to keep him from seeing the bull sooner, he said:

“Only the cattle guard would hide it.”

But, as we have noted above, the cattle guard would not hide it. He does not say he was looking ahead previous to the moment he saw it. He was asked what he was doing from the time he turned the curve, and he said:

“Just sitting looking out riding down hill.”

We think under the testimony defendant is liable.

But we are not convinced that the animal was worth $150.00. J. J. Hollingsworth said he was, but we note that he says that when he went to get one to replace the one killed he inquired at the Fair and could not get one for less than $100.00 or $200.00. Mr. Wyatt, who lives . in that vicinity and was engaged in the cattle business, said that cattle were cheap in 1922 and that the bull killed was worth not more than $45.00 or $50.00. The testimony satisfies us that the bull was worth $100.00, but no more.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be amended so as to fix the value of the animal at $100.00, and as thus amended the judgment is affirmed, with costs.


text:
    No. 3154
    Second Circuit
    STATE, EX. REL JOHNSON, v. ROBERTS, AS JUDGE, ETC.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus hy the Editor)

    1. Louisiana Digest — Injunction—Par. 101.
    Under Section 5 of Act No. 29 of 1924 the court can grant a suspensive appeal from a decree dissolving the preliminary injunction only after hearing on a motion for such an appeal.
    2. Louisiana Digest — Appeal—Par. 280.
    Where the district judge erroneously grants a suspensive appeal where none should have been granted, he may rescind the order.
    Action by State ex rel. G. C. Johnson against Robert Roberts, Judge.
    On application for writs of certiorari and prohibition.
    Judgment sustaining lower court’s judgment on right to appeal.
    John B. Files, Bryan E. Bush, of Shreveport, attorneys for relator.
    Harry Y. Booth, Hoye Grafton, of Shreveport, attorneys for respondent.
   WEBB, J.

Relator seeks to obtain a writ of prohibition restraining the judge of the First Judicial District Court of Louisiana in and for Caddo parish from rescinding an order granted by him for a suspensive appeal in the case of G. C. Johnston versus H. A. Holmes as Marshal, etc., No. 45,926 on the docket of that court.

Relator applied to the First District Court for an injunction to prevent the sale of his property which had been seized by the marshal under a writ of fi. fa. issued out of the City Court of the Tenth Ward of Caddo parish in suit No. 1394 entitled Britt Bros. vs. G. C. Johnson.

In due course relator obtained a preliminary injunction, and a rule was taken on the defendant to show cause why the injunction should not be made permanent.

On, trial of the rule a plea to the jurisdiction and a motion to dissolve the injunction were filed; and, the plea being sustained, the preliminary injunction was dissolved and the suit dismissed.

From this deeree the plaintiff, relator here, applied for and obtained an order of appeal, suspensive and devolutive, and filed a bond in accordance with the order.

After the bond had been filed the defendant moved to have the order granting a suspensive appeal rescinded, and the relator here excepted to the jurisdiction of the court to rescind the order, and on the exception being overruled and the motion sustained relator applied to this court for a writ of certiorari and prays that on hearing a writ of prohibition issue.

Section 5 of Act No. 29 of 1924 reads, in part, as follows:

“No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order; but where upon a hearing, a preliminary writ of injunction shall have been granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolutive, but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree; provided, however, that after reasonable notice given to plaintiff’s attorney of record of the time and place at which, and the court to which application will be made, the court may, in its discretion, allow to any party enjoined a suspensive appeal from any order granting a preliminary injunction, and may, in its discretion, also stay further proceedings in the cause until -the appeal has been decided, upon the party appealing giving bond with surety or sureties, in such sum as the court may fix, as sufficient for the protection of the opposite party, or other party in interest in his damages and costs, and conditioned for the payment of all damages and costs sustained by such opposite party, or other party in interest by reason of the suspension of such order by such appeal; or if in such case a suspensive appeal be refused by the lower court, the appellate court having jurisdiction, or any judge thereof, may, in like circumstances and under like conditions, allow the same in aid of its appellate jurisdiction. * * *”

From which it appears to be clear that the court could grant a suspensive appeal from the decree dissolving or recalling the preliminary injunction only after hearing had on a motion for such an appeal; and as we understand there was not any such motion or hearing had on the question of the right to take a suspensive appeal.

And we are of the opinion that the appeal was improperly granted and properly rescinded by the court on its attention being directed thereto.

“There is no doubt that a District Court, after improvidently granting a suspensive appeal, where none should have been granted, may rescind the order.”

State ex rel. Cientat vs. Judge, etc., 32 La. Ann. 814.

It is therefore ordered that the writ of certiorari issued herein be recalled and the application for a writ of prohibition be denied at relator’s cost.


text:
    No. 3026
    Second Circuit
    COX v. ARDIS BUILDING CO., INC.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus ~by the Editor)

    1. Louisiana Digest — Negligence—Par. 1, 10.
    One who catches the door of an elevator as it is closing and tihe elevator moving, opens it and climbs or falls into the moving elevator, is negligent.
    2. Louisiana Digest — Negligence—Par. 28.
    The doctrine of last clear chance is not applicable where, as soon as the operator of the elevator saw the perilous position in which the plaintiff had negligently placed himself, did all in her power to prevent the accident, the brakes of the elevator being in good condition.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by A. B. Cox against Ardis Building Company, Incorporated.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Moss & Peters, C. H. Lyon, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff brought this action to recover damages for injuries sustained by him in an elevator operated by defendant in its office building in the city of Shreveport, ,and he appeals from a judgment rejecting his demands.

OPINION

The plaintiff alleged that the operator of the elevator was negligent in starting the elevator before the door was closed and before' he had time to enter the elevator and adjust himself to its motion, and, further, that after he had fallen in the elevator car and was in a perilous position the operator failed to stop the elevator and prevent the accident, and that the failure to so stop the elevator was due to the brakes on the elevator being in bad condition.

The evidence shows that the door opening into the elevator is opened and closed by the operator and that as the operator starts to set the car in motion the door is shoved-to and it automatically catches and closes the entrance to the elevator or elevator shaft; that on the occasion of the accident the plaintiff had been brought down from his office and had landed from the elevator on the ground floor of the building and had proceeded a short distance when, he says, he decided to return to his office, at which time, however, the evidence establishes that the elevator door was closing and the car moving upward and that plaintiff in his haste caught the door and prevented it from closing and fell or climbed into the moving elevator and lay on the floor of the car with his legs extending out through the opening or doorway and that one of his legs came in contact with the top of the door frame as the elevator ascended.

The plaintiff was clearly guilty of negligence in attempting to enter the elevator under such conditions and in such manner (Green vs. Y.M.C.A., 65 Ill. App. 459; Zimman vs. Miller Hotel Co., 146 N.W. 1030; H. B. Phillips vs. Pruitt, 82 S.W. 628); and conceding that the operator was guilty of negligence in starting the car before the door had fully closed (which we do not think was the case, as there is not any evidence showing that she knew plaintiff wished to enter the car) the plaintiff was guilty of contributory negligence, and cannot recover unless the evidence shows that the doctrine of the last clear chance is applicable.

The operator of the elevator says that the manner of plaintiff’s entry into the car caused her to. become excited, but that she applied the means under her control in an attempt to stop the car immediately upon noting, the situation; and accepting that as true, it is argued that the inability of the operator to stop the elevator before it reached the top of the door frame was due to defective brakes on the elevator.

The evidence, however, does not show that the brakes were defective, but, on the other hand, we find that the preponderance of the evidence establishes that the brakes were not defective, and that the elevator was in all respects in good condition; and it being shown that the operator was competent, and that she immediately noted the perilous position in Which the plaintiff had placed himself and did all in her power to prevent the accident, we do not think that the doctrine of the last clear chance is applicable.

The judgment appealed from is therefore affirmed.


text:
    No. 2926
    Second Circuit
    CASEY v. SHREVEPORT RAILWAYS CO.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 5, 7.
    Where the driver of an automobile, on approaching a crossing, noted the approach of a street car, estimated its speed and that of his car, and took a chance of passing in front of the car, although, if he had been prudent he would have stopped, he was contributorily negligent.
    2. Louisiana Digest — Street and Interurban Railroads — Par. 21, 31.
    The motorman of the street car has the right to assume that the driver of an automobile in crossing the street would stop before placing himself in a perilous position, and, therefore, the doctrine of last clear chance is not applicable if the motorman did all that he could to avoid the accident as soon as he saw that the driver of the automobile would attempt to cross in front of the car.
    (See Civil Code, Article 2315. — Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Actioh by Ben. F. Casey against Shreveport Railways Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Crow & Coleman, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

In this action the plaintiff seeks to recover damages for slight personal injuries and injury to his automobile sustained as the result of a collision between the automobile while being driven by plaintiff and a street car operated by the defendant company.

The collision occurred on one of the streets of the city of Shreveport as the plaintiff was attempting to drive his automobile over the street car tracks, and the theory and basis of the right to recover is alleged to be that the street car was being operated at an excessive rate of speed and that this was the proximate cause of the collision; and further, that the defendant had the last clear chance to avoid the accident and failed to d'o so.

The defendant denied the charge of negligence, and alleged that the collision was due solely to plaintiff’s fault, and, in the alternative, that the negligence of plaintiff contributed to the accident.

On the issues presented the cause went to trial, and plaintiff appeals from a judgment rejecting his demands.

OPINION

The evidence shows that both plaintiff and the motorman on the street car had or could have had a clear and unobstructed view of the respective cars for some distance as they approached the point of collision, but plaintiff contends that as he came into the street on which the crossing was situated and where the collision occurred, the respective cars were at such distances from the crossing that it was safe for him to attempt the crossing, assuming that the street car was being operated at a lawful rate of speed; and, in the alternative, in event it should be held that plaintiff was negligent, defendant had the last clear chance to avoid the accident.

We do not find in the record any ordinance fixing the maximum rate of speed at which street'ears should be driven on the street where the collision occurred or on the connecting street traversed by the street car as it approached the point of collision, and there was not any attempt made to show what was the usual speed of the street cars in that vicinity, and under the circumstances we think it may well be said that the plaintiff when coming on the street where the collision occurred noted the situation and estimating the speed at which the respective cars were moving took a chance and that he was negligent under the rule applied in Khoury vs. L. & W. Ry. Co., 140 La. 369, 72 South. 998.

However, if, as contended, the rule applied in the case cited cannot be applicable to persons about to cross a street car track in a city in front of an approaching street car even where - it is impossible to determine from the evidence that the street car would not be driven above a certain rate of speed, yet we think it should appear that the situation was such that an ordinarily prudent person could have reasonably believed that he could safely cross.

Conceding that such a situation may be presented where the respective cars are at such distance from the' point where their courses converge or intersect, we think that where the evidence shows, as it does in the present instance, that the driver of the ■ automobile could have stopped his car within two or three feet, it was his duty to have observed the situation just prior to coming within such distance of the track which may be termed the danger zone, and that the question of whether or not he was negligent is to be determined relative to the situation presented at that time, rather than the situation presented when he came upon the street, and from this point of view we find that the overwhelming preponderance of the evidence shows that the relative position of the cars was such that prudence should have dictated that he stop his automobile rather than take the chance of passing in front of the street car which, he says, was moving at the rate of twenty miles per hour, while he was driving at the rate of ten or twelve miles per hour.

The motorman was not bound to anticipate that plaintiff would attempt to cross the track in front of the street car, but he had the right to assume that he would stop before placing himself in the perilous position which should have been apparent had he observed the situation just before coming into the danger zone; (Cowden vs. Shreveport Belt Ry. Co., 106 La. 235, 30 South. 303; Sammon vs. N. O. Ry. & L. Co., 143 La. 731, 79 So. 320; McShane vs. N. O. Ry. & L. Co., 137 La. 828, 69 So. 268); and the evidence. conclusively shows that the motorman as soon as he saw that plaintiff would attempt to make the crossing did all that was possible to avoid the accident, and we do not think the doctrine of the last clear chance is applicable.

The judgment appealed from is affirmed.


text:
    No. 2348
    Second Circuit
    W. W. PAGE & SON v. RUSSELL
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 343, 344.
    Memoranda made by defendant’s wife on reports made to her by him are not sufficient to overcome the positive testimony of plaintiff.
    2. Louisiana Digest — Usury—Par. 19, 20, 23.
    Ten per cent interest, being usurious, cannot be collected.
    3. Louisiana Digest — Interest—Par. 25, 28.
    Under the provisions of Article 2924 of the Civil Code, a judgment should, bear interest from maturity of the debt sued upon rather than judicial demand.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal. A. Burgess, Judge.
    Action by W. W. Page St Son against Walter Russell.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Ponder & Ponder, of Many, attorneys for plaintiff, appellee.
    R. A. Fraser, of Many, attorney for defendant, appellant.
   WEBB, J.

Plaintiff brought this action to recover judgment for a balance of two hundred thirty-one and 48/100 dollars alleged to have been due on open account for goods sold and money furnished defendant during the years 1920 to 1923, inclusive; and the defenses interposed were that certain charges for merchandise and cash shown on the statement of account and amounting to thirty-seven and 35/100 dollars were erroneous, and that other charges for interest, amounting to ninety-eight and 33/100 dollars, -were illegal; and, further, the credit of one hundred seventy-nine and 03/100 dollars for cotton delivered, to plaintiff should have been two hundred fifty-five and 75/100 dollars, and that on the allowance for such deductions and additional credits the balance due would be forty-six and 88/100 dollars.

The judgment appealed from struck the interest charges, amounting to eighty-one and 83/100 dollars, from the account and allowed the amount claimed, less such charges, with five per cent interest on the judgment from judicial demand, from which judgment the defendant appealed, and plaintiff answered the appeal, praying the interest charges stricken from the account should be allowed and that the judgment should include interest from October 19, 1923, the date on which the last item on the account appears to have been entered, and in accordance with the prayer of the petition.

As to the disputed items, amounting to thirty-seven and 35/100 dollars, one of the partners of plaintiff testified as to the items and produced the original sales slips which had been made at the time of the sale, about five years prior to the date of the trial, and while the defendant stated the charges were erroneous, it clearly appears that his statement was based upon memoranda of the transactions between plaintiff and defendant which did not show the disputed items. However, the memoranda appeared to have been made by defendant’s wife on reports made to her by him, and we do not think the evidence was sufficient to overcome the showing made by plaintiff, and the disputed items were correctly allowed. Horton vs. Harrelson, 130 La. 100, 57 South. 643.

Relative to the interest charges, it appears that plaintiff sold the defendant merchandise at cash ¡prices plus ten. per cent for credit, which was added at the time the Sales were made and thus entered ■upon the account, and that plaintiff also furnished defendant some money which was entered on the- account at the exact amount furnished, and at about the end of the calendar year the plaintiff entered a charge of ten per cent on the balance due at that time which would be carried forward to the succeeding year and at the end of that year plaintiff would enter another charge of ten per cent as during the preceding year.

There were four charges of such interest, amounting to eighty-one and 33/100 dollars, which were stricken from the account by the judgment and the defendant claims there was an additional charge for interest amounting to sixteen and 50/100 dollars. We do not find the latter item or items for interest on the. account and we presume that such amount must refer to the difference between the cash and credit prices of the goods sold and if so we think the court properly refused to allow credit therefor.

The plaintiff admits that the' charge of ten per. cent interest, as shown' by the account, amounting to eighty-one and 33/100 dollars, was illegal, but contends a charge of five per cent on balances due at the end of the year should have been allowed. The account, as made, however, shows that the interest charge was illegal, not only as to the rate but also that the interest was compounded, and conceding the right of plaintiff to charge interest on the balance due at the end of the year, the evidence does no't show that any such settlement was made and it is impossible for us to determine from the evidence the balance due at the end of any calendar year ¡prior to the last, .and we find that the judgment striking the .charges for interest from the account was correct under the evidence.

As to the claim for additional credit for cotton sold, defendant claims he left the cotton with plaintiff under an agreement that it would not be sold until he gave instructions to sell. It appears, however, that defendant was indebted to plaintiff for an amount which was in excess of the value of the cotton at the time it was delivered to plaintiff, and plaintiff denies that there was any agreement that the cotton would not be sold until defendant instructed him to sell, and says that it was delivered to be sold by plaintiff when plaintiff thought best. As it appears that plaintiff acted for defendant as he would have done for himself and obtained the best price he could, we find that the court properly refused to allow any additional credit.

On the question of the date from which the judgment should bear interest, .the course of dealing between the parties shows the indebtedness became due not later than the end. of the calendar year of 1923, and under the provisions of Article 2924 C. G. the judgment should bear interest from the maturity of the debt sued upon rather than from judicial demand..

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended so as to allow interest at the rate of five per cent per annum from January 1, 1924, until paid, and, as thus amended, the judgment is affirmed.


text:
    No. 2343
    Second Circuit
    FORTSON v. MOSEKE Spears, et als., Intervenors
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Marriage—Par. 159.
    In view of Articles 2399, 2402 and 2405 of the Civil Code, property acquired during the marriage in the name of the wife and being possessed by her at the time of the dissolution of the marriage is presumed to be community property.
    2. Louisiana Digest — Marriage—Par. 159.
    The presumption that property purchased in the name of the wife belongs to the community can only be destroyed by conclusive proof that the wife had paraphernal property with which to make the initial payment, had the management of the property after she acquired it and had sufficient revenues from paraphernal property to take care of the deferred payments.
    Appeal from the Second Judicial District of Louisiana, Parish of Claiborne. Hon. John S. Richardson, Judge.
    Action by Charles S. Fortson against John H. Moseke, Mattie Spears, et als., Intervenors.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    William C. Boone, of Homer, and Atkins, Meadors & Madden, attorneys for plaintiff, appellee.
    W. H. Hawkins, T. T. Land, of Homer, attorneys for intervenors, appellants.'
   ODOM, J.

On April 7, 1920, the defendant, J. H. Moseke, executed his promissory note for $285.07 due November 15 following, payable to J. T. Ramsey and secured the same by mortgage on an undivided one-half interest on the southwest quarter of Section thirty-two, Township twenty-two north, Range six west in Claiborne parish, Louisiana, containing 160 acres.

Alleging ownership of the note and that the same had not been paid the plaintiff, Fortson, took out executory process to collect the same on October 21, 1924. The land mortgaged was seized and advertised to be sold on January 31, 1925. On January 30, 1925, the day previous to the one on which the sale was to take place, J. H. Moseke, the maker of the note and defendant in the foreclosure suit, in his capacity as tutor of the minors, Booker T. and James Douglas Carter, and Mattie Spear, born Mozeke, intervened in the foreclosure suit, set up the facts of the seizure and proposed sale of an undivided half interest in said land and alleged that the one-half interest in the property above described which had been mortgaged by J. H. Moseke was' not in fact owned by him but belonged in indivisión to the heirs of Rhoda Moseke (naming them).

Rhoda Moseke was the wife of J. H. Moseke and the property in controversy in this suit was acquired during their marriage, the deed being taken in the name of Rhoda Moseke, the wife.

It is alleged:

“That said Rhoda Moseke acquired said lands by purchase from A.. T. Nelson by deed dated January 15, 1913, recorded on page 567, Book Z, of the conveyance records of Claiborne parish, and paid for said lands with moneys from her p'araphernal property.”

And it is further alleged that the mortgage to secure the note sued on was executed by said J. H. Moseke—

“in the belief that he owned an undivided one-half interest in said lands, whereas, in truth and in fact, as he is now advised, he had no interest therein, as said lands were the separate property of his wife, Rhoda Moseke, and, on her death, descended to her children.”

Intervenors prayed for an injunction restraining the sale of the property and for judgment recognizing the heirs of Rhoda Moseke as owners of the entire interest in said 160 acres of land.

After the trial the court dissolved the writ of injunction and decreed that the property purchased in the name of Rhoda Moseke on January 15, 1913, during her marriage with J. A. Moseke, was community property. Intervenors prosecute this appeal.

OPINION

J. H. Moseke and Rhoda Moseke were husband and wife at the time this property was acquired. It seems to be conceded that they were living together in community- The property was acquired in the wife’s name. The deed recit.es that it is sold—

“unto Rhoda Moseke, nee Jackson, whose husband, J. H. Moseke, signs this deed to aid, assist and authorize his said wife to make this purchase.”

There is no recital in the deed that the land is purchased with paraphernal funds of the wife or that the same is not to fall into the community acquets and gains existing between her and her husband.

The consideration of the sale, as shown by the deed, was $1100.00, $400.00 being paid in cash and the balance represented by four notes each for $175.00 payable December 15 in the years 1913, 1914, 1915 and 1916.

The note maturing December 15, 1913, seems to have been paid promptly. Its cancellation was noted on the mortgage record by the clerk and recorder on that date. The other three notes were presented for cancellation on November 29, 1919, and the recorder cancelled the mortgage in full on that date. The record does not disclose whether they were paid on that date or' prior thereto. Rhoda Moseke died shortly thereafter.

The property having been acquired during the marriage in the name of the wife and being possessed by her at the time of the dissolution of the marriage is “presumed common effects or gains”.

Civil Code, 2399, 2402, 2405.

Bachino vs. Costs, 35 La. Ann. 570.

Rocques vs. Freeman, 125 La. 65, 51 So. 68.

Bartels vs. Souchon, 48 La. Ann. 785, 19 So. 941.

This property prima facie belongs to the community and must be considered as belonging to the community— ’

“until the presumption has been effectually destroyed by conclusive proof of the claim of separate ownership to it.”

Bachino vs. Costs, supra.

Citing:

Collins vs. Daly, 4 Rob. 118.

Smalley vs. Lawrence, 9 Rob. 214.

Burke vs. Clark, 11 La. 206.

Squier vs. Stockton, 5 La. Ann. 741.

Forbes vs. Forbes, 11 La. Ann. 326.

Huntington vs. Legros, 18 La. Ann. 126.

Shaw vs. Hill, 20 La. Ann. 531.

State of Louisiana ex rel. Durant vs. Board of Liquidators, 29 La. Ann. 76.

The record showing upon its face that this property is community property, the burden rested upon these intervenors, heirs of their mother, who claimed it was separate property, to prove that fact. This they have failed to do.

J. H. Mozeke, the surviving spouse, testified that the property belonged to his wife; that she had paid for it; but on being questioned as to where and how she acquired the funds with which to make the purchase, he could give no definite, satisfactory answers. He said his wife had inherited some property from her mother which she had sold, but he did not know how much she received for it, whether $10.00 or $50.00; nor did he know when she sold it, but a portion of his testimony indicates that she sold it after this purchase was made. The property which he says she sold was, he said, situated in the adjoining parish of Lincoln, but no record evidence was introduced to show that she had ever made such a sale nor that she had inherited any property in that parish. Questioned further, he said his wife acquired the money from “deals” which she made, but he was not able to specify any particular' “deal” because, he said, he did not inquire into his wifes business.

His daughter, Mattie Spear, one of the intervenors, testified that her mother paid for the property with her own money; that her mother had at one time shown her some $640.00 in cash; had her count it. This was just before the property in question was purchased. But she did not know when or where her mother got the money or even that it was her own money, except what her mother told her. Her mother, she says, told her it was hers.

If it be true, as alleged by intervenors, that Rhoda Moseke had inherited property from her mother and had sold it, the records were the best evidence of that fact. These records were accessible and could have been produced. But, instead of producing them, and thereby settling the vital point at issue, the intervenors rested their case on the weakest kind of evidence, the greater portion of which was hearsay. This property being prima facie a community asset, the burden was on intervenors to show by Conclusive proof that it was the separate property of the wife. Such is our jurisprudence. . Intervenors failed to show by any substantial, much less conclusive, proof that Rhoda Moseke made with her separate paraphernal funds either the initial cash payment or any subsequent payment on the- land; On the contrary, it is shown that both J. A. Moseke and his wife had taught in the colored schools of the parish, so that both together or either of them could easily have accumulated the $400.00 with which the cash payment was made.

So far as the subsequent payments are concerned, there is no testimony as to how they obtained the means of making them. But there is proof in the record that they at one time sold a mineral lease on the land and also some timber, and we think it very probable that the notes given for the credit portion of the price were paid out of the proceeds of these sales.

In addition to the above, it may be well to state that the property was never under the separate management of the wife. Mr. .George .Nelson, son of the man who sold the land to Rhoda, testified that he recalled the sale by his father, and that John and Rhoda came together when the .sale was made and Mr. Nelson was asked:

“Who did the talking and making of arrangements ?”

And he answered:

“John did the talking; he seemed to be the- speaker of the two.”

And he said:

■ “John always came and sold the cotton.; he seemed to be the manager of the outfit.”

. There is some testimony in the record that at one time a merchant refused to ■charge goods to John Mozeke but, on the ■contrary, charged the same to his wife, Rhoda.. It is easy to imagine why this should have been do.ne — the only property owned by either stood on the records in the name of the wife.

. In the case of Fortier vs. Barry, 111 La. 778, 35 So. 900, the court said:

. “The presumption of law is that property purchased during the existence of the .community, whether in the name of one or .the other of the spouses, belongs to the community; and where the wife claims it as her separate estate, the burden rests upon her to establish by proof de hors the recitals of the act by which it has been- acquired; (1) the possession of some paraphernal funds under her administration, and available for investment; (2) that 'the cash portion of the purchase price bears such a relation to the whole as that the property will afford sufficient security for the credit portion; and (3) that her ■paraphernal property and revenues are ample to enable her to make the purchase with reasonable expectation of meeting the deferred' payments.”

In the case at bar, there is not satisfactory proof that the wife had paraphernal funds with which to make the initial payment and no proof whatever that she had, the management of the property after she acquired it and no proof that she had revenues from paraphernal property sufficient to take care of the deferred payments. .

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