text:
    No. 2970
    Second Circuit
    HEARD v. MONROE SAND & GRAVEL CO., INC.
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Courts—Par. 12, 16, 126.
    It is the duty of the Court of Appeal to take notice of want of jurisdiction, even though that question is not raised hy the parties.
    2. Louisiana Digest — Courts—Par. 128.
    Where the point at issue is an assumption of liability under a contract, and, in the alternative, tha,t the contract is invalid, the balance due on the contract being over- $7000.00, the -Court of

      Appeal has no appellate jurisdiction in the case.
    3. Louisiana Digest — Courts—Par. 164.
    Under Act No. 19 of 1912, where a case involving more than the appellate jurisdiction of the Court of Appeal is lodged in that court it will be transferred to the Supreme Court.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita.
    Action by Mrs. Fay P. Heard against Monroe Sand & Gravel Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Case transferred to the Supreme Court.
    Theus, Grisham & Davis, of Monroe, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action the plaintiff, Mrs. Fay P. Heard, alleges that she entered into a contract with T. E. Steiphenson on the 20th of September, 1922, under which Stephenson hound and obligated himself to pay plaintiff two and one-half cents per cubic yard for all sand and gravel mined from two hundred and eighty acres of land situated in the parish of Ouachita, as shown hy the contract annexed to the petition.

The instrument annexed to the petition is an authentic act of the date alleged, in which T. E. Stephenson recites that he had acquired from Mrs. J. Faulk the right to mine sand and gravel from two hundred and eighty acres of land belonging to Mrs. Faulk, and that he had agreed to pay Mrs. Faulk seven and one-half cents per cubic yard for the sand and gravel taken from the land, and that he had agreed to take a minimum amount of twenty-eight thousand cubic yards per year from the lands, and to make monthly payments to Mrs. Faulk, for the gravel removed, and in •the act annexed Stephenson declared that for a certain consideration he bound and obligated himself to pay Mrs. Fay P. Heard two and one-half cents for each cubic yard of sand and gravel removed from the property of Mrs. Faulk, and to make the payments monthly, or at the same time payments were made to Mrs. Faulk.

Plaintiff further alleges that the Monroe Sand & Gravel Company, Inc., defendant, a corporation organized under the laws of this state and domiciled in the parish of Ouachita, with Stephenson as vice-president and manager, shortly after the execution of the contract with Mrs. J. Faulk, referred to in the contract with Mrs. Fay P. Heard, took over all of said leases, and had been mining sand and gravel from the lands of Mrs. Faulk, and had paid plaintiff regularly and monthly two and one-half cents per cubic yard for the sand and gravel taken from the property of Mrs. Faulk up to October, 1926.

That during the month of October, 1925, defendant had mined and removed from the property 10,764.32 cubic yards, and during the month of November, 1925, it mined and removed from the property 9332.30 cubic yards, and that defendant owed plaintiff for the sand and gravel thus removed, or two hundred and sixty-eight and 32-100 dollars for October, and two hundred and thirty-three and 5-100 dollars for November, which -it had refused to pay after amicable demand, and prayed for judgment against defendant for the amounts alleged to be due with interest and cost.

Defendant answered admitting that T. E. Stephenson had signed the. contract with plaintiff and that it had acquired from T. E. Stephenson the rights which he had acquired from Mrs. J. Paulk to mine and remove sand and gravel from the property described, and that it had removed from the property during the months of October and November the quantity alleged and that it refused to pay plaintiff, and denied, that it was indebted unto plaintiff.

Defendant further answered that it had acquired from T. E. Stephenson the rights which the latter acquired from Mrs. Paulk to mine and take from the property described sand and gravel, and alleged that it did not assume or obligate itself to the payment or discharge of the obligation undertaken by Stephenson in the contract sued upon, but it admitted that T. E. Stephenson had been in the, active management of the company, and had made payments out of the funds of the company to Mrs. Pay P. Heard, and that such payments had amounted to seven thousand six hundred and twenty and 70-100 dollars, and alleged that the payments were made without authority, and that there was no intention on the part of the company to assume the obligations of Stephenson to Mrs. Pay P. Heard.

The defendant further answered in the alternative and in event it should be held that .the action of Stephenson in making the payments had rendered defendant liable to" the plaintiff, under the contract sued upon, then, in that event, it alleged that the contract between Stephenson and Mrs. Pay P. Heard' was without consideration, and entered into in error induced by the fraudulent representations made by Mrs. Pay P. Heard, acting through her agent, J. ■ Paulkner Heard, and that the payments made by Stephenson were made under the belief that the representations of plaintiff’s agent were true, and that defendant should recover the amounts paid, and prayed for judgment rejecting plaintiff’s demands and for judgment in reconvention for the amount of the payments.

On the trial the plaintiff offered certain contracts which had been made between T. E. Stephenson, and Mrs. Pay P. Heard 'and Mrs. J. Paulk, under which the former acquired the right to mine and take from the lands belonging to the latter, separately and individually; sand and gravel, and also the contract sued upon-, and rested, whereupon defendant attempted to call J. Paulkner Heard, agent of Mrs. Pay P. Heard, as on cross-examination, and being refused that right, defendant then offered evidence to show that the consideration expressed in the contract between Mrs. Pay P. Heard and T. E. Stephenson did not exist, and to show that J. Paulkner Heard, the agent of Mrs. Heard, had made false claims as to the existence of the consideration, and evidence was offered showing that T. E. Stephensbn had transferred to defendants its rights under the contracts in which he acquired the right to mine and take from the lands of Mrs. Paulk and Mrs. Heard sand and gravel, and plaintiff then called witnesses in rebuttal, among whom was J. Faulkner Heard, to show the existence of the consideration and that J. Faulkner Heard had not made any false representations, and defendant offered to introduce further evidence in rebuttal of the testimony of J. Faulkner Heard, which the court refused to permit, and, the case being submitted, judgment was rendered in favor of (plaintiff for the amount claimed with interest'and cost, from which defendant appeals.

The defendant complains of the ruling of the court in refusing to permit it to call J. Faulkner Heard as on cross-examination, and contending that the ruling was erroneous, it contends that it should have been permitted to offer testimony in rebuttal of the testimony of J. Faulkner Heard, and that the ruling refusing to permit it to do so was erroneous, and that the cause should be remanded for a new trial.

Defendant further contends, however, that in event the cause should not be remanded for further trial, the judgment should be reversed, on the following grounds:

First. That the evidence does not show that defendant assumed the obligation of T. E. Stephenson under the contract sued upon, or that it is liable thereunder.

Second. That in event the defendant is held to have assumed the obligation of T. E. Stephenson, or to be liable under the contract, that the contract was without consideration and was made by Stephenson in error induced by the fraudulent representations of plaintiff acting through her agent, J. Faulkner Heard.

Third. That the judgment was erroneous in rejecting defendant’s reconventional demand and that defendant should have been awarded judgment thereon in the sum of seven thousand six hundred and twenty and 70-100 dollars, with interest.

While, the parties have not raised the question as to our jurisdiction, either as to the main demand or the reconventional demand, but it appears to us that this court is without jurisdiction ratione materiae, and it is our duty to take notice of want of jurisdiction. (State vs. Judge, 45 La. Ann. 1206, 14 South. 73.)

While the amount claimed by plaintiff is within the jurisdiction of this court, being for less than two thousand dollars, the real question presented by plaintiff is as to whether or not the. defendant assumed or rendered itself liable for the obligations under a contract between plaintiff and a third person, and the defense is that there was not any assumption of the contract, or any liability thereunder, and if there was an assumption of liability under the contract that the contract was invalid, and from any point of view the issue is as to the contract.

Under the allegations of plaintiff considered in connection with the evidence, it appears that Stephenson entered into a contract with plaintiff under which the latter would receive a minimum sum of six hundned dollars per year, and that the contract was for a period of fifteen, years, of which period twelve years had not expired at the time of the suit, and which would fix the' value of the contract for the remaining period at seven thousand two hundred dollars.

The evidence further shows that the payments made during the first three years of the contract amounted to more than seven thousand dollars.

Being of the opinion that the issue is as to the assumption of. the contract, or its validity, and that the evidence shows that the value of the contract is above the jurisdiction of this court, we are of the opin'íoñ that the appeal should be transferred to the Supreme Court under Act No. 19 of 1912, and it is so ordered.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2963
    Second Circuit
    FIRST NATIONAL BANK OF ARCADIA v. BURGESS
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Bills and Notes— Par. 232; Evidence — Par. 352.
    Where defendant denies that the signature on a note is genuine and the only evidence to the contrary is that of an officer of a bank who thought the signature was genuine, although the name was incorrectly spelled, there being no evidence to affect the credibility of the defendant, the signature must be considered signed by someone else.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by First National Bank of Arcadia against B. Burgess, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    R. L. Williams, of Ruston, attorney for plaintiff, appellant.
    C. B. Roberts, of Ruston, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, First National Bank of Arcadia, instituted this action against defendants, William Hartsell and B. Burgess, on a promissory note which purports to have been drawn by the defendants.

Service was not made on Hartsell, who appears to have left the state, and Burgess answered, denying that he signed the note, and on trial judgment was rendered rejecting plaintiff’s demands, from which it appeals.

OPINION

The evidence shows that Hartsell, desiring to obtain a loan from the bank, the latter prepared the note which was given to Hartsell and that Hartsell returned and presented the note which appears on the face to have been signed by Hartsell and “B. Burges”, and on the issue presented by the answer of defendant, plaintiff called one of its officers, who stated that he had known Burgess for about twenty years, and he had seen Burgess write and sign his name several years prior to the time of the trial, and that he thought the signature o.n the note was the signature of the defendant Burgess, although the signature was “B. Burges” and defendant’s name is “B. Burgess”.

The defendant testified that he did not sign the note and that the signature was not his signature, and there is not any evidence in the record which goes to affect the credibility of the defendant, and we are of the opinion that the evidence does not show that defendant signed the note, and the judgment is therefore affirmed.


text:
    No. 2203
    Second Circuit
    HUTCHINSON BROS. v. BYRD & JOLLIFF
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 218; Ob ligations — Par. 124.
    Where the seller of a piano guarantees that “the piano would do the work” and that the electric motor to be attached to it would make it work, using the current generated at purchaser’s electric plant, he expressly warrants that the motor will make it work, and the sale will be rescinded if it does not work.
    2. Louisiana Digest — Interest—Par. 25, 26.
    Interest is allowed on payments made on the purchase annulled by judgment of the court only from date of judgment.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge-
    Action by Hutchinson Brothers, Incorporated, against Byrd & Jolliff.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    L. C. Butler, of Shreveport, attorney for defendants, appellees.
   WEBB, J.

In this action, Hutchinson Brothers, Incorporated, who are dealers in pianos, seek to recover judgment against defendants, Byrd & Jolliff, a partnership, and the individual members, who operate an amusement park, in the sum of eleven hundred dollars, the balance alleged to be due on the purchase price of an electric piano alleged to have been sold to the partnership by plaintiff at the price of fifteen hundred dollars.

The defense made was, in substance, that the piano had been sold under a guarantee that it would be so equipped and installed at defendants’ place as to be satisfactorily operated by the current generated at defendants’ electric plant, and that plaintiff, after many attempts to equip the piano so that it would operate, had finally abandoned it, and that the sale should be rescinded and the amount that had been paid by defendants refunded, and defendants prayed for judgment accordingly.

On trial, judgment was rendered in favor of defendants as prayed for, with the exception that no interest was allowed, and plaintiff appealed, and defendants have answered the appeal praying that the judgment should be amended so as to allow interest from the date cf the payments.

OPINION

The evidence shows that electric pianos are operated by electric motors and that some of the motors use alternating current and others direct current, and that the piano which was selected by defendants was equipped with a motor which operated with alternating current and that plaintiff was to equip the piano with a motor which would operate with direct current which was the type of current furnished by defendants’ plant, and while the evidence shows that the piano was equipped with such a motor and does not show that there was any defect in either the piano or motor, it shows that the piano would not play properly when the electric plant of defendants was carrying the lights.

Plaintiff attributes the failure of the piano to operate normally at such, times to the failure of defendants’ electric plant to furnish sufficient power to carry the various electrical appliances connected with it; but it contends that it did not expressly or impliedly guarantee anything except the thing it sold, and that its guarantee cannot be held to extend so as to cover any defects or lack of power in defendants’ electric plant.

While it must be conceded that the plaintiff in selling its wares did not implicitly warrant against any defects other than in the thing sold (Dreyfous vs. Lourd & Co., 111 La. 21, 35 South. 369), yet the evidence shows that plaintiff was advised of the object for which defendants desired to use the piano and of the nature and kind of electric plant which 'defendants had, and one of the partners of defendant, whose testimony was not contradicted, testifies that plaintiff guaranteed “the piano would do the work, and that it would make it work”, language which in itself may be said to be equivocal, but after making several attempts ' to make the piano operate normally when the electric plant was carrying the lights, and with full knowledge of where the defect lay, plaintiff at all times promised to make the ■ piano do the work, and under such promises persuaded defendants to make several payments on the piano, and finally plaintiff abandoned its attempts to make the ' piano operate.

We realize that in holding plaintiff to ■ have undertaken to make the piano operate normally with the power furnished by the defendants’ plant, which the evidence indicates was overloaded and that it was impractical to install .the piano, was in effect to hold the sale to have been on trial or probably more as that the plaintiff had undertaken to make a' test of the feasibility of defendants’ installing an electric piano at their place. However, the testi- ’ mony of one of the partners as to the ' agreement tends in that direction and the ' repeated promises of plaintiff to make the . piano do the work, we think, establishes the defense, and plaintiff’s failure to do either warranted the judgment rendered against it.

The transaction having been annulled ■ by the judgment, defendants were not entitled to interest on the payments made from the date of payment, but it was entitled to interest from date of judgment, . and the judgment appealed from should be amended so as to allow defendants legal , interest on their reconventional demand : from date of judgment, and as amended , the judgment is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    HARMON v. LOUISIANA WESTERN RAILROAD
    (May 3, 1927. Opinion and Decree.)

      (.Syllabus by the Editor)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 166.
    The railroad company is liable in damages where it is shown that cattle was improperly watered and fed while waiting at a junction point to be reloaded, thus causing emaciation to all and death to one cow.
    Appeal from Acadia Parish. Hon. W. W. Bailey, District Judge.
    Action by Gordy R. Harmon against Louisiana Western Railroad.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Medlenka & Bruner, of Crowley, attorneys for plaintiff, appellee.
    Philip S. Pugh, of Crowley, attorney for defendant, appellant.
   MOUTON, J.

February 13, 1925, plaintiff shipped from Ruston, La., 82 head of cattle over the hicago, Rock Island and Pacific Railway lines by way of Eunice to Crowley, the point of destination. The, cattle reached Eunice about four o’clock P. M. the next day, February 14. The morning after, they were reloaded on defendant’s lines for transportation to Crowley, where they arrived at noon of the same day. Plaintiff contends that the cattle were not properly fed and watered while in Eunice; that as the result of this lack of water and food the animals were emaciated and damaged wheh they were delivered at Crowley. He claims damages in the sum of $860.00 with legal interest. Judgment was rendered in his favor for $250.00 with five per cent interest from judicial demand. Defendant appeals. It is shown that the cattle were in fairly good condition when they were loaded at Ruston. Some of the witnesses say they were “thin” when they were unloaded in Eunice. There is nothing to show that they suffered any damages between those two points. In Eunice, it appears that water had to be carried in two barrels in ,a push-car at a distance of about a quarter of a mile to the pen where the animals had been placed for the night for transportation next morning over defendant’s lines. After the water reached the pen on the push-car it had to be hoisted over a fence and from there carried and poured into a tub which was placed in the middle of the pen to water the animals. It must be noted that there was only one tub to hold this water. It is stated by one of the witnesses for defendant that the cattle were so thirsty that they rushed on the carriers of the water, who sought safety by climbing on the top of the fence, Plaintiff, as a witness, says that two barrels of water were given the cattle, while witnesses for defendant fix the quantity at sixteen. Even if sixteen barrels were taken to the stock, placing it in a tub was a very insecure way to provide water for these thirsty animals. In their rush to relieve their thirst, it is more than likely that if the tub was not overturned, the water must have been splashed away or spilled out of it. • The company should have had troughs or other means to supply the animals with water. The method used was too crude and inadequate to answer the purpose.

Witnesses for defendant say that, in the way of food, ten bales of alfalfa hay were furnished the cattle; plaintiff says there were only four. The record shows there were no racks in the pen from which the hay could be fed to them. It was thrown o.n the sides of the pen where the cattle could reach the hay the best way they could.

It is not surprising, under such conditions, that the cattle failed to get the food and water they needed for the journey ahead of them. It appears by the testimony of an experienced cattle man, who testified in the case, that the lack of food and water to animals while in transit on railway trains is injurious to them. That as the result of this lack of proper nourishment and water they will weaken and lose considerably in flesh or weight. It appears in this case that when they reached Crowley they were very weak and emaciated. The fact is that one died soon after, and another lost her calf. Plaintiff says, as a consequence of their bad condition when they arrived, he had to feed the cattle many months before he could find a market for them. The - proof is that, after he had received these cattle, he ordered another bunch and sold the latter before he was able to dispose of the others. No doubt, this was because he had to restore the others to a marketable condition before he was able to find a ready sale for them. A veterinarian who testified in the case says it ordinarily costs about $3.00 a head per month to restore weak or emaciated cattle to a proper condition, and that this can be accomplished in a period of about ninety days. Plaintiff did not show the exact cost he had incurred to bring the cattle back to the condition in which they were when received at Eunice. There was some deterioration in their condition, as appears from the preponderance of the evidence. The record shows that one of the cows, valued at about $50.00, died; and that another was traded off by plaintiff at a loss of about $20.00. The court fixed the damages at $250.00, which we do not find either excessive or inadequate.


text:
    No. 2874
    Second Circuit
    CHANCELLOR v. CONTINENTAL LUMBER & TIE CO.
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana 'Digest — Master and Servant —Par. 159.
    Where, after recovery of an injured employee suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, it is shown that he is engaged in the same character of work and receives the same scale of wages as formerly, although he could not use his injured wrist for as heavy work as formerly, there is no disability under the Act and no compensation should be paid.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of More-house. Hon. Percy Sandel, Judge.
    Action by Monroe Chancellor against Continental Lumber & Tie Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Todd & Todd, of Bastrop, attorneys for plaintiff, appellant.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Monroe Chancellor, while in the employ of defendant, Continental Lumber & Tie Company, was injured and defendant paid compensation for about three months, when it claimed plaintiff had recovered from the disability resulting from the injury, and ceased payment, and plaintiff instituted this suit to recover compensation for permanent total disability, subject to credit of the payments made.

The defendant admitted all of the material allegations of plaintiff’s petition, with the exception that the injury had. resulted in disabling plaintiff to any extent further than the disability immediately following the injury, from which it alleged plaintiff had fully recovered, on the date it ceased to pay compensation. On trial, plaintiff’s demands were rejected, and he appeals.

OPINION

The evidence establishes that plaintiff’s wrist was fractured on April 20, 1925, and that he was . treated by physicians furnished by defendant until about July 20, 1925, when the fracture had apparently healed, when he was discharged by the physicians and re-engaged in defendant’s employ where he was given work similar to that in which he was engaged at the time of the accident and at the same wage, where he remained for about a month, or until the plant was destroyed by fire.

Following ,the destruction of the plant,' plaintiff worked for a short time with a lumber company in Arkansas, and in December, 1925, ’ he obtained employment as carpenter at his home in Monroe, in which employment he received the same rate of wages as he had received at the time of the injury, and in which employment plaintiff was engaged at the time of the trial in July, 1926.

The evidence establishes that the fracture had completely healed and the weight of the opinion of the physicians who examined plaintiff subsequent to July, 1925, when plaintiff re-entered defendant’s employment, was that there was not any functional disability after that date and that plaintiff was not disabled to any extent, but plaintiff states that he is unable to perform as hard labor as he was before the accident and that he could not lift heavy objects, and that he was not able to work continuously at the employment in which he had engaged since the accident without pain.

The evidence, however, establishes that plaintiff was continuously employed in the work undertaken by him in July, 1925, until the plant was destroyed, and that he had been continuously employed as a carpenter since December, 1925, although it appears that the work undertaken by plaintiff in July, 1925, was not as heavy as that in which he had been engaged prior to the accident and that the carpenter work in which he had been engaged was lighter than the usual work of a carpenter.

The work, however, in which plaintiff has engaged since the accident, was of the same character as that in which he was engaged at the time of the accident, and he has in such employment received the same scale of wages as formerly; and it further appears that he performed the work to the satisfaction of his employers, and that he has been continuously engaged in the employment of carpentering when his employer had work to be done, and the evidence establishing that the fracture had healed and that there was not any functional disability resulting from the accident, we conclude that plaintiff has not shown that he was disabled to do work of the same character as that in which he was engaged at the time of the accident, and the judgment appealed from is affirmed.


text:
    No. 2162
    Second Circuit
    CRAWFORD v. RAWLS
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      {Syllabus by the Editor)
    1. Louisiana Digest — Bilis and Notes— Par. 109, 110, 111.
    Under the Negotiable Instruments Act No. 64 of 1904 makers are primarily liable and endorsers secondarily liable in the order in which they appear on the note.
    2. Louisiana Digest — Bills and Notes— Par. 110, 111; Evidence — Par. 228.
    Under Section 68 of Act 64 of 1904, the Negotiable Instruments Act, makers and endorsers are in the same position as co-sureties and are successively liable to each other in the order in which they endorse, but may be shown by parol evidence to have been jointly liable rather than successively and severally liable.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action by R. D. Crawford against O. H. P. Rawls and Homer Rawls.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. P. Stephens, of Coushatta,^ attorney-for plaintiff, appellant.

      S. R. Thomas, of Coushatta, attorney for defendant, appellee.
   WEBB, J.

In this action, plaintiff, R. D. Crawford, sought to recover judgment against Homer Rawls and O. H. P. Rawls in the sum of two. hundred and fifty-eight and 35-100 dollars with eight per cent per annum interest thereon from November 1, 1920, and ten per cent attorney’s fees.

He alleges he was an accommodation endorser on a promissory note drawn by Homer Rawls and O. H. P. Rawls of date June 5, 1920, payable to the order of the Peoples Bank on November 1, 1920, for the sum of five hundred and sixteen and 77-100 dollars, bearing eight per cent per annum interest from maturity and stipulating payment of ten per cent as attorney’s fees, etc., and that on the maturity of the note the payee bank called on him to pay and that he paid the amount claimed and became subrogated to the rights of the payee.

Judgment went by default against Homer Rawls and O. H. P. Rawls answered, denying plaintiff’s allegations and setting up in .effect that he as well as the plaintiff was an accommodation party and that they, defendant and plaintiff, had agreed to assist Homer Rawls in obtaining funds from the payee and that they were co-sureties, and by agreement between them each paid one-half of the amount of the note on the default of Homer Rawls, the accommodated party, and that defendant was not liable for the amount which he had paid.

There was a trial as between plaintiff and O. H. P. Rawls and judgment was rendered in favor of O. H. P. Rawls and the plaintiff appealed.

OPINION

On trial parol testimony was offered and received over the ojection of the plaintiff, which shows the circumstances under which the parties signed the note, from which it appears that plaintiff and defendant, desiring to assist Homer Rawls, had mutually agreed that they would secure the Peoples Bank for a loan by the latter to Homer Rawls, and that with this understanding and agreement the loan was secured, O. H. P. Rawls signing the note as a co-drawer, and R. D. Crawford as an indorser, and subsequently, on the default of Homer Rawls, each of the parties, O. H. P. Rawls and R. D. Crawford, paid one-half of the note.

We do not understand it to be contended that the parol testimony does not show that the parties, O. H. P. Rawls and R. D. Crawford, did not agree to bind themselves as co-sureties for Homer Rawls, but that the sole contention is that parol testimony was not admissible to show the intention of the parties between themselves.

Counsel do not cite any decision from this state which was rendered prior or subsequent to the passage of the Negotiable Instruments Law (Act No. 64 of 1904), in which the identical question was considered. However, prior to the date of the statute, it appears to have been generally conceded that parol testimony was admissible to show the relation between accommodation endorsers (La. Dig., Bills and Notes, No. 111, pg. 922; Phillips vs. Preston, 5 How. 278, 12 L. Ed. 152), and we think that the statute especially authorizes such proof as between successive endorsers (Sec. 68).

The statute expressly provides that the endorsers are prima facie liable in the order in which they endorse, and the same is true as between the makers and the endorsers, the former being primarily and the latter secondarily liable on the face of the note; but, as between themselves, we do not think, the order of liability could not be shown to have been understood to be otherwise, and if the endorsers, who are not on the face of the instrument co-sureties but are successively liable to each other in the order in which they endorse, may be shown by parol evidence to have been jointly liable, rather than successively and severally, we do not see any reason why the same rule should not apply as between the makers and the endorser.

“In 'the case of successive accommodation parties, such as maker and endorser, or successive endorsers, the general rule is not to consider them as co-sureties * * * unless they specially agree that they are to be bound jointly and not severally; but where such an agreement exists contribution may be enforced and the agreement may be proved by parol evidence, or be evidenced by the circumstances of the case.”

Randolph, Commercial Paper, 2nd ed. No. 59.

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


text:
    No. 2085
    Second Circuit
    COOK v. CITY OF SHREVEPORT
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)
    (January 3, 1927. Reversed by the Supreme Court on Writ of Certiorari, and Review.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Mandamus—Par. 41, 44; Municipalities — Par. 60.
    The ordinances of a municipality are binding upon the governing authorities acting as such, as well as upon them individually, and upon all officers of the municipality until repealed. Therefore, enforcing the ordinance is a ministerial duty and a mandamus will not lie to compel the officers to act in contravention of the clear and express terms of the ordinance.
    2. Louisiana Digest — Mandamus—Par. 41, 44; Municipalities — Par. 60.
    A mandamus will not lie to compel the governing authorities of a municipality to accept notes bearing 6% interest where the ordinance ordering a street paved and the recordation of liens on the abutting property for the payment of this pavement in accordance with Act 187 of 1920 and amendments provided for 8% interest; their ministerial duty being the collection of 8% interest provided by the ordinance.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Susie L. Cook against City of Shreveport.

      There was judgment for plaintiff and defendant appealed.
    Judgment reversed and alternative writ of mandamus recalled.
    Joseph H. Levy, of Shreveport, attorney for plaintiff, appellee.
    B. F. Roberts, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The city of Shreveport, acting through its constituted officers, and under a petition of the required number of property owners, requesting that a certain alley or street be paved under Act No. 187 of 1920, and amendments thereto, ordered the paving to be done under the provisions of said Act.

The Act provides for the payment for the work by the abutting owners and for the time and manner of payment as follows:

“Sec. 5. Be it further enacted, etc., That the amounts assessed in said ordinance shall be due and exigible immediately upon its passage, and if not paid within ten days thereafter the city or town, or its transferees, shall have power to proceed by suit against the assessed properties, and the owners thereof, to enforce the collection of the amounts of said assessment, together with six per cent per annum interest from date of acceptance thereof and ten per cent of the amount of the judgment as attorney’s fees.
“Sec. 6. Be it further enacted, etc., That the governing authorities of the municipality may provide in the ordinance accepting the work and making the assessment that the property owners therein assessed, availing themselves of the privilege within ten days after the passage of the ordinance, may pay in cash twenty per cent of the amount of their indebtedness and pay the balance thereof in four equal annual installments. As evidence of such deferred payments the property owner shall sign and execute four promissory notes payable to the order of the municipality, each for twenty per cent of the amount due by him, dated ten days after the passage of the ordinance accepting the work, maturing, respectively, one, two, three and four years from date, or sooner, at the option of the owner, bearing six per cent yearly interest from date and ten per cent attorney’s fees if placed in the hands of an attorney for collection after maturity, which notes, when paraphed by the city clerk or secretary to identify them with the ordinance levying the assessment, shall carry with them in the possession of any owner the lien and privilege above provided.”

Upon completion of the paving, the city of Shreveport by ordinance accepted same and made an assessment against the abutting property, providing for the payment of the amounts assessed against the abutting property as fixed by the statute, with the exception that where Section 5 of the statute provides for the payment of six per cent interest when the amount is not paid within ten days from the date of the assessment, Section 3 of the ordinance provides for the payment of eight per cent interest, and where Section 6 of the statute provides that the notes representing the deferred payments shall bear six per cent interest, Section 4 of the ordinance provides that the notes shall bear eight per cent.

The relator, Susie L. Cook, was one of the owners of property abutting on the street which had been paved, and she paid to the city of Shreveport, through S. G. Wolfe, secretary-treasurer, twenty per cent of the amount assessed against her property, and offered to give four notes bearing-six per cent interest and otherwise drawn as provided by the statute and the ordinance to cover the balance due under the assessment, and this being refused she brought this action in which, after setting forth the facts as shown above, she alleged:

“Relator now avers that the said governing body of the said city of Shreveport did grant to relator and all other abutters of the aforesaid alley the privilege set out in Section 6 of the said Act of 1920 when it passed and adopted Section 4 of the ordinance * * * and that by passing Section 4 of said ordinance it both exercised and exhausted all discretion of option granted it by Act 187 of 1920, and at the same time granted the absolute right and privilege to all abutters on the said alley to pay their proportion of the said pavement according to the terms and conditions set out in Section 6 of Act 187 of 1920, and that it is now its pure and ministerial duty to accept payment for said paving according to the terms and conditions set out in Section 6 of Act 187 of 1920 * * * and she now avers that she has an absolute legal right to demand that the city of Shreveport, its mayor and officials, and especially S. G. Wolfe, secretary-treasurer and tax collector of the city of Shreveport, issue for her signature four promissory notes bearing six per cent interest and otherwise .drawn as provided by the statute and the ordinance.”

An alternative writ of mandamus was issued to the city of Shreveport, L. E. Thomas, mayor; J. T. Dixon, commissioner of finance, and S. G. Wolfe, secretary-treasurer and tax collector, and relator, by a supplemental petition, amended her pleadings and prayed that the defendants be ordered to accept the notes drawn as above for the deferred payments.

The defendants answered, admitting all of the facts alleged by plaintiff, denying the legal conclusion, and alleged that the petition failed to state a right or cause of action for the issuance of the writ of mandamus.

On trial the writ was made peremptory and defendants appealed.

OPINION

We assume that it will be conceded that in order for one to have the right to resort to the extraordinary writ of mandamus it must appear that the relator has the absolute right to demand the performance of the act or duty, that the duty to be performed must be ministerial, and that the relator has no other adequate remedy by ordinary process.

The defendants contend that, conceding to relator the right to demand the performance of the duty and that the duty is purely ministerial, relator has another adequate remedy, suggesting that she could await a suit by the city of Shreveport for the balance due under the assessment and then set up her right to have given the notes bearing six per cent interest.

The recordation of the ordinance levying the assessment fixed a lien and privilege on the property of relator, and conceding that the relator could await the action of the city and then avail herself of the right to give the notes, we are of the opinion that the expense and vexation of a lawsuit in order to have her property cleared of the privilege, would be a very poor substitute for her right to give the notes and to have the privilege can-celled proportionally as she paid the notes; and conceding that relator has a right to give the notes bearing six per cent interest, as provided by the statute, and that it is the ministerial duty of the city of Shreveport, or any one of the named officers, to perform such duty, we do not think that the remedy suggested would be adequate within the meaning of the law.

To exclude resort to mandamus on the ground that relator has another remedy, such remedy must be an adequate one and well adapted to remedy the wrong complained of; if it is inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. Another remedy, tedious and not so well adapted to the nature of the case as that by mandamus will not operate to prevent resort to the latter remedy; and it is said that the other remedy must be one competent to afford relief upon the very subject matter involved; that it must not only be adequate, but specific. (R. C. L., Mandamus, vol. 18, pge. 1342, No. 45.)

Considering the question of whether or not the act which relator seeks to have performed is purely ministerial, and assuming that as neither the statute nor the ordinance designates the officer or person whose duty it is to accept or attend to the matter of taking the notes where time is granted, it should be performed by one of the officers named in the writ or even by the municipality acting through the mayor and the commissioners, we must determine by what law or ordinance the duty is imposed.

While the statute certainly does not contemplate that the'municipality shall act through its governing authorities as a body in settlement of paving matters, where the thing to be done is merely accepting notes for deferred payments, but, if where the ordinance fails to designate the officer who shall act for the municipality in the matter, the duty falls upon the municipality, acting through its governing authorities,. and conceding that they would be performing merely a ministerial duty, we are of the opinion that the ministerial duty would be that which had been imposed by the ordinance accepting the pavement, and in the present instance the ordinance certainly does not authorize the governing authorities, or any other person acting for the city, to accept notes bearing six pen cent interest, but on the contrary it only authorizes the acceptance of notes bearing eight per cent interest.

The ordinance is clear upon this point, and there is no room for construction, and it appears that the relator, in seeking to have the city or any of the officers accept notes bearing six per cent interest, is attempting to have them ignore the only authority under which they are empowered to act, that is, the ordinance, and to accept notes bearing six per cent interest, when the ordinance only authorizes them to accept notes bearing eight per cent interest.

The ordinances of the municipality are binding upon the governing authorities of the municipality, acting as such, as well as upon them individually, and upon all officers of the municipality, until repealed or amended, and the relator is seeking to compel the city or its officers to act in contravention to the clear and express terms of the ordinance, and cannot be said to be demanding the performance of a ministerial duty.

In so holding we are not unmindful of the contention of the relator that that section of the ordinance which provides for deferred payments should be read as if it failed to provide for the rate of interest which, the ■ notes should bear, or as if there had been no provision whatever for the manner in which the deferred payments should he made, and that the language of the statute should be read into the ordinance; but, conceding that such should be the case, we do not think that this action could be said to be a mere ministerial duty, enforceable by the writ of mandamus.

We conceive that from this point of view it is unnecessary to determine whether or not the relator has the right under law or ordinance to defer the “payments” and to give notes bearing six per cent interest as evidence of such deferred payments, as we do not think that this question can properly be considered in this proceeding.

For the reasons assigned, it is therefore ordered that the judgment appealed from be annulled and reversed and that the alternative writ of mandamus issued herein be recalled at relator’s cost.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    MORRIS v. SUMMERS
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 339 350.
    In view of Civil Code, Article 2277, proof of an agreement to pay $1000.00 for a quit claim title is not shown sufficiently by the evidence of a witness that the defendant agreed to pay the money at a 'future time out of some oil obligation.
    Appeal from the District Court, Parish of Vermilion. Hon. W. W. Bailey, Judge.
    Action by Otto L. Morris against James A. Summers.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Broussard & Samson, of Abbeville, attorneys for plaintiff, appellant.
    Nugier & Gordy, of Abbeville, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit to enforce an alleged verbal promise to pay one thousand dollars for signing a quit claim title to an oil and gas lease.

Otto L. Morris alleges that, on January 15, 1924, at the request of the defendant, James A. Summers, he executed and signed a quit claim title in favor of Keen & Wolf Oil Co., for the oil and gas rights as to the Ei/Z of the NW% of the NW% of Section 28, T. 16 S., R. 15 W., situated in Union county, Arkansas.

That he had an interest in a lease covering the oil and gas rights in said property, acquired from C. O. and D. V. Henley by the plaintiff, together with James A. Summers, the defendant, and V. L. Caldwell and Harry N. Morris. That said Summers verbally agreed with him as a consideration for signing said quit claim in favor of Keen & Wolf Oil Co., that he would pay him one thousand dollars out of the cash price which Keen & Wolf Oil Co. were to pay said Summers for his interest in the Henley lease.

That defendant received from Keen & Wolf Oil Co. his share of $9000.00, which they were to pay him for his interest in the Henley lease; but that said Summers refused to pay plaintiff the $1000.00 which he had promised him, as above said. He brought suit against said Summers to compel payment.

Summers for answer and defense denies that he promised to pay plaintiff $1000.00 out of the cash price that he was to receive from Keen & Wolf Oil Co. on account of his interest in the lease from the Henleys; but avers that he did say to plaintiff at the time alleged, that for executing said quit claim in favor of Keen & Wolf Oil Co. he might have $1000.00 out of the oil and gas produced, saved and markete'd by Keen & Wolf Oil Co. from said land, an interest in which his contract with Keen & Wolf Oil Co. gave him.

The district judge, after hearing the evidence, rendered judgment rejecting plaintiff’s demand. Plaintiff appealed.

The quit claim deed which plaintiff signed indicates that he must have had some interest in the lease, and that Keen & Wolf Oil Co. wanted it transferred to them; otherwise defendant would not have taken a trip to Shreveport in order to obtain it.

The evidence shows that there was a delay on the part of Keen & Wolf Oil Co. in paying $9000.00 to the defendant and V. ¡L. Caldwell, due to the defendant’s delay in getting this quit claim from the plaintiff. They did not pay the price which had been agreed on until this quit claim from plaintiff had been placed in their hands; which circumstance corroborates the plaintiff. On the other hand, the quit claim shows on its face that it is in consideration of “One dollar to me in hand paid by Keen & Wolf Oil Co., the receipt of which is- hereby acknowledged”, and does not speak of any further consideration.

If the plaintiff’s rights in the ■ lease obtained from C. O. and D. Y. Henley had been worth $1000.00, it seems probable that plaintiff would have assigned his rights to James A. Summers for $1000.00, else would have taken a note or some written showing. The fact this was not,^. done, but was assigned instead to Keen & Wolf Oil Co. for the small sum mentioned, indicates that plaintiff’s rights were negligible.

Plaintiff testified that defendant promised him $1000.00 as alleged in his petition, and that his brother, Harry N. Morris, and another party who had died since the time in question, were present and heard the agreement. The testimony of Harry N. Morriá is as follows:

“The said Summers agreed to pay $1000.00 out of some future payment from Keen & Wolf Oil Co. I do not know whether it was the payment of a note or of some oil obligation.
“Mr. Summers agreed to pay the money at that future day, I do not remember just when it was, and Otto Morris agreed to- sign a quit claim deed. I advised Otto Morris to get a note from Summers for $1,000.00,” etc.

That another party present had died since that time.

Defendant admits that he told the plaintiff after he had signed the lease that he might have $1000.00 out of the oil and gas produced on the property, an interest in which had been promised to him as part of the price to be paid by Keen & Wolf Oil Co., but the inference .is that this turned out to be a myth. The promise as above shown is not clearly supported by Harry N. Morris, and is denied by the defendant.

Defendant contends that plaintiff had no real interest in the Henley lease and that he realized it and agreed, at defendant’s request, to execute a quit claim in favor of Keen & Wolf Oil Co. without any promise of consideration. That there was a proceeding in bankruptcy in the U. S. District Cour| at Texarkana, Arkansas, in which whatever interest plaintiff had in this lease was adjudicated to defendant by H. M. Barney, Trustee of Harry Morris Guaranteed Gusher Syndicate No. 3. That plaintiff intervened in that proceeding, claiming interest; but that the referee in bankruptcy ruled that whatever interest he had had passed to defendant.

That plaintiff took an appeal from the finding of the referee to the District Court, and the judge' presiding affirmed the finding of the referee. That it therefore results that plaintiff had no real interest in the Henley lease.

Plaintiff’s testimony on this subject is supported by the testimony of H. M. Barney, Trustee, and by the title and transfers which Barney as Trustee of Harry Morris Guaranteed Gusher Syndicate No. 3 executed in favor of the defendant for a consideration of $4000.00 paid to the trustee as the price of same.

Defendant is further corroborated by E. P. Moresi, who testifies that he heard plaintiff say some time previous to the execution of this quit claim deed, the exact date not stated, that he had no interest in the lease and that, if he had any, he would release same to defendant, Summers.

Under the circumstances it cannot be said that plaintiff has established his case by a preponderance of the evidence, nor with the certainty required by law as to agreements to pay more than $500.00. Civil Code, Art. 2277.

The district judge considered that the plaintiff had not satisfactorily established his case. It seems to us that such is the situation, and that the judgment appealed from is correct and should be affirmed.

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


text:
    No. -
    First Circuit
    THIBODEAUX & HARISON v. GLOBE INDEMNITY OF NEW YORK
    (May 3, 1927. Opinion and Decree.)

      (Syllabus fty the Editor)

    1. Louisiana Digest — Builders and Buildings — Par. 7, 29.
    Under Act 139 of 1922 and Act 230 of 1924 the bonding company can make no defense that the contractor cannot make.

      Therefore, the bonding company cannot make the defense that the material was not used in . the building.
    2. Louisiana Digest — Attorneys—Par. 59.
    Under Act 225 of 1918 ten per cent attorney’s fees cannot be recovered where only part of the amount claimed was recovered in the judgment:
    Appeal from the Parish of East Baton Rouge. Hon. G. Favrot, District Judge.
    Action by Thibodeaux and Harison, Inc., against Globe Indemnity of New York and Troy Lee Watts.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed in part and reversed in part.
    Moise Thibodeaux, of Baton Rouge, attorney for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

John M. Foote, R. L. Men-ville and Mrs. Fred Frank entered into separate contracts with Troy Lee Watts, contractor, to build dwelling houses and apartments in the city of Baton Rouge. Watts furnished bond to secure the faithful performance of each contract with the Globe Indemnity Company of New York as' surety on his bonds. Materials were furnished by plaintiff for the erection of these buildings and were delivered on the order of Watts, the contractor. Plaintiff brought this suit against Watts and the Globe Indemnity Company, surety on his bond, for the recovery of $798.34, amount claimed for these materials. Watts makes no defense and the contest is therefore between plaintiff and the Globe Indemnity Company.

The defendant company contends that plaintiff can not recover because he has failed to prove that the materials were actually used in the erection of the buildings. If the suit were for the recognition of a privilege on the buildings, such proof might be required. C. C. 3249; 3. Plaintiff is not, however, suing for the enforcement of his lien but brings his demand against the bonding company for materials furnished the contractor. The bonds having been executed prior to the enactment of the building contract law of 1926 are therefore governed by the provisions of Acts 139, 1922; 230, 1924. Act 139, 1922, Sec. 5, says: “That in all cases where surety has been furnished, the surety shall be entitled to make only the same defenses that the contractor for whom he signed the bond is authorized to make, etc.” This Act was amended by Act 230, 1924, but the clause of Act 1922, above quoted, has remained unchanged. In the bonds furnished by the Globe Indemnity Company, the company binds itself to pay the furnisher of materials in ease the contractor, Lee Watts, failed to pay for these materials. They were furnished for the buildings under Watts’ order by which he became bound for their payment. He certainly could not have urged as a legal defense that he had not used them in the buildings for which they had been bought. See Graphic Arts Bid. Co. vs. Union Indemnity Co., G. R. vol. 3, No. 6, March, 1927. Under the clause of the Act aforesaid, the surety is entitled to make only such defense that the contractor could have made. The contractor can make none as far as we are aware, and the surety_ finds itself in the same predicament. A bond of the character of the one furnished here is statutory, and performs a double function, one for the benefit of the owner, and the other for the benefit of third parties, furnisher of materials, laborers, mechanics and such like. The surety, equally with the contractor, is, by formal covenant bound to pay the claims of the furnisher of materials in such cases. Shreveport Mut. Bldg. Assn. vs. Whittington ( 141 La. 41, 74 South. 591; Victoria Lbr. Co. vs. Wells, 139 La. 500, 71 South. 781; U. S. Fidelity & Guaranty Co. v. D’Angelo, 150 La. 188, 90 South. 564; Webb vs. Fidelity & Dep. Co., 146 La. 170, 83 South. 448.

We therefore find that the defendant company was properly held bound to plaintiff for the materials furnished.

Plaintiff also demanded against defendant company $15.00, amount he had to pay for the registry of three itemized sworn statements or liens. The trial judge denied this item, and properly. Having denied this item, gave judgment for $783.34, being less than the sum of $798.34, which was demanded.

The. court, however, gave judgment for ten per cent as attorney’s fees on the amount decreed against defendant. Attorney’s fees, in cases of this character, can be allowed only when “the full amount claimed by the suitor is recovered”. Act 225, 1918, p. 408; Hopkins vs. National Surety Co., 154 La. 61, 97 South. 297.

As plaintiff has failed to recover the full amount claimed the attorney’s fees must be disallowed and in that respect the judgment must be amended.

It is therefore ordered and decreed that the judgment be avoided and reversed insofar as it decrees attorney’s fees to plaintiff and which are hereby denied and rejected; and in other respects the judgment be affirmed, plaintiff to pay cost of appeal, those of lower court to be paid by defendant.


author: LECHE, J.

text:
    No. —,—
    First Circuit'
    McVEA v. DAY
    (May 3, 1927. Opinion and Decree.)

      (.Syllabus by che Editor)
    1. Louisiana Digest — Sheriffs and Constables — Par. 33, 35.
    ' In order to hold a sheriff liable for a wrong committed by -his deputy, such wrong must have been committed while in his actual performance of an official act. Therefore, a tort committed by a deputy while driving an auto to a place where he was needed does not make the sheriff liable in damages.
    2. Louisiana Digest — Sheriffs and Constables — Par. 33, 35.
    Traveling or going to a place where an official act is to be performed, the manner in which a deputy sheriff travels, is not a part of the official act.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by Mrs. Pearl L. McVea against Mrs. Eudora S. Day, et als.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellant.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

Raul J. Duhon, a deputy sheriff for the parish of East Baton Rouge, while driving an automobile belonging to Mrs. Eudora S. Day, sheriff of the same parish, along the 'Jefferson Highway out of the city of Baton Rouge, in order to investigate suspected violations of. law, came into collision with the automobile of plaintiff and damaged the same in the amount of one hundred and sixty-five and 95-100 dollars. Plaintiff .alleges that said Duhon was driving at a rapid and dangerous rate of speed and negligently ran into and collided with her automobile. That she was driving her automobile at a moderate and safe rate of speed on the right-hand side of the highway and that said collision was due entirely to the carelessness and negligence of said Duhon. She charges further that said collision occurred while said Duhon was in the improper and negligent performance of an official act in his capacity as deputy sheriff. Relying substantially upon these allegations she prays for judgment against Duhon, Mrs. Day and the Union Indemnity Company, surety upon the bond of Mrs. Day as. sheriff of the parish of East Baton Rouge.

The District Court maintained exceptions of no cause of action filed on behalf of Mrs. Day as sheriff and on behalf of the Union Indemnity Company, her surety as sheriff, and from a judgment dismissing plaintiff’s suit as to these two defendants, the plaintiff has appealed.

It further appears that the collision charged to have been the result of Duhon’s carelessness and negligence is alleged to have occurred while Duhon was on his way from the city of Baton Rouge to some remote place out in the country, that Duhon as deputy sheriff was _ going to that place to perform some official duty which demanded his presence, and plaintiff therefore contends and alleges that the collision occurred while Duhon was in the improper and negligent performance of an official act. The allegation that Duhon was at the time of collision in the improper and negligent performance of an official act is, however, a conclusion of law, which constitutes the sole issue in determining whether the petition discloses a cause of action as to the sheriff and her bondsman. The responsibility for answering that question, of course, rests upon the court, and plaintiff in making the allegation did so, for the purpose of clearly' defining the legal position which she assumes in demanding relief from the court.

Our learned brother of the District Court came to the conclusion that plaintiff’s petition showed no cause of action as to Mrs. Day, the sheriff, and as to the Union Indemnity Company, her surety as sheriff, and his conclusion is supported by forcible written reasons.

It must be kept in mind that Duhon was not an agent or representative of Mrs. Day in her individual or personal capacity, but was a subordinate official, representing the office of sheriff and acting as an agent whose appointment is provided by law and whose authority and duty is also regulated by law. The general rule in the Common Law States is that a sheriff is liable for all official neglect or misconduct of his deputy, and also for his acts not required by law, where the deputy assumes to act under color of his office and that such acts may include wrongs and trespasses under color of office. Some courts hold that in order to creat liability on the part of the sheriff such acts must be done by virtue of the office, and, in interpreting this rule, it is held that, in order to have that character, the act must have been done in an attempt to serve or execute process and as a means to that end. R. C. L., Vol. 24, p. 982.

The act charged to Duhon in the present case does not in any manner partake of that character. There is nothing from the facts alleged in the petition to indicate that Duhon recklessly ran his automobile into that of Mrs. McVea, under color of his office, or in an attempt to execute process of court and as a means to that end.

The only adjudication cited, or that we have been able to find on this subject, in the jurisprudence of this state, is the case of Sanders vs. Humphries, et al., 143 La. 43, 78 South. 168. The petition in that case was held to show no cause of action and the court', speaking through Mr. Justice O’Niell, said:

“The allegation that the reckless assault and shooting were done while Humphries was on duty as a deputy sheriff, and while he was acting as a deputy, agent, servant and employee of the sheriff, is not the same as to say that the acts were done in violation of or in an unlawful or improper performance of an official act. Insofar-, however, as these allegations might be construed to mean that the assault- and shooting were the' result of the reckless performance of an official act of the deputy sheriff, the allegations manifestly express only the opinion or conclusion of the plaintiff in that respect.”

The syllabus, by the court, in that case, holds that “A sheriff is not liable, nor is the surety on his official bond liable, in damages for personal injuries to a citizen, inflicted' recklessly by a deputy sheriff, unless it was done in violation of an official duty, or in an unfaithful or improper performance of an official act.”

It appears from the language of that decision that the law in Louisiana is the same as' that in the Common Law States and that the principles announced in R. C. L., hereinbefore cited, are properly applicable to this- case.

Plaintiff charges that, when the collision took place, Duhon was on his way to investigate certain suspected violations of law, and, for that reason, she was of the opinion and came to the alleged conclusion that he was acting in his official capacity. It is obvious that to make the investigation, Duhon had to go to the place where the suspected violations of law took place, and it is equally obvious that, after making such investigations, he had to return to his office at the courthouse in the city of Baton Rouge, and, therefore, would it not be equally true, if plaintiff’s contention is correct, that, if he had recklessly run his automobile into that of plaintiff on his return, such collision would also have been caused by him in his official capacity? Reasoning still further along the same line, Duhon presumably had to go from his home to his office at the courthouse in the morning of that day; would it not be equally reasonable to say that if hie had recklessly collided with plaintiff's automobile, on his way to the courthouse, he would also have then been acting in his official capacity?

Our conclusion is that, in order to hold a sheriff liable for a wrong committed by his deputy, such wrong must have been committed while in the actual performance of an official act, that such wrong must be directly connected with and, because of an official act and must have resulted from the manner in which such official act was performed. Of course, in this case there is no question of failure to perform an official duty; the complaint is that Duhon committed a wrong while acting in an official capacity.

Our further conclusion is that, in traveling or going to a place where an official act is to be performed, the manner in which a deputy travels, is not part of the official act.

For these reasons the judgment appealed from is affirmed. ‘


text:
    No. -
    First Circuit
    SARRETT v. GLOBE INDEMNITY CO.
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 211, 349.
    Where the written contract shows A, the contractor to build a highway, and B, the bondsman under that contract, the presumption is that these documents represent the truth, and in the absence of positive evidence to the contrary they will be considered as representing the truth.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, where clearly correct, is affirmed.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by W. V. Sarrett, et al., against Globe Indemnity Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Shelby Taylor, Moise. Thibodeaux, Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks,' of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

G. R. White entered into a contract with the Louisiana Highway Commission to build part of the Baton RougeGreensburg Highway, entitled by the< Commission as Project No. 401. White, as said in common parlance, fell’ on the job, was unable to complete the contract, and the project was carried out and finished by the Globe Indemnity Company, surety on his bond under the contract. .. ,

W. V. Sarrett, the plaintiff, having performed part of the work, recorded his lien, and he herein sues to recover compensation for his labor. In his original petition he was joined by his wife and he claimed, for himself and wife, some twenty-seven hundred dollars, but for reasons, not necessary to mention here, the amount now involved was reduced to six hundred dollars, which he claims for services as foreman on the work.

The defense is that Sarrett was in reality a silent partner of G. R. White, and defendant reconvenes for the sum of three thousand three hundred and thirty dollars, one-half of the amount which it was compelled to expend in order to complete the work undertaken by White in his contract with the Highway Commission.

The District Court rendered judgment in favor of Sarrett and against the Globe Indemnity Company for six hundred dollars, and the Globe Indemnity Company has appealed.

The only direct testimony in regard to Sarrett’s connection with White is that of Sarrett himself and of J. F. Rutledge, a local agent of the defendant -at Baton Rouge. There is an irreconcilable conflict between these two witnesses, for they openly contradict one another. Rutledge says that Sarrett and White agreed in his presence and that of a Mr. Thompson, also connected with the defendant company, that Sarrett would get fifty per cent of the profits under the contract. -He says the reason why Sarrett’s name did not appear was because the teams which Sarrett was to use in performing the work belonged to Mrs. Sarrett. This is directly denied by Sarrett. Unfortunately the court has not been favored with the testimony, either of Thompson or of White. As a matter of fact, it is shown by other witnesses that, while the work was progressing, Sarrett acted merely as a foreman and that he never exercised the authority of a contractor in the employment or discharge of laborers, in fixing wages or in disbursing the funds used in paying expenses of the work. It is also true, however, that Sarrett does not claim that White ever agreed to pay him any fixed compensation. Sarrett says that White did at one time approach him with a view of forming a partnership,' but that such an agreement was never consummated. He says that White always deferred arrangements for his compensation, and his claim is based entirely on a quantum meruit. It may be, though it does not clearly appear from the record, that White led defendant’s agents to believe that Sarrett was his partner. It may have been to his interest to do so, but the evidence is not sufficient to justify the conclusion that Sarrett ever induced the agents of defendant to believe that he was in partnership with White, or that he ever held himself out as such. The fact remains that the contract was in the name- of White, that the bond was signed for the benefit of' White, and the presumption that these documents represent the truth has not been overcome by the evidence offered and introduced by defendant.

The issue is one of fact and we find no error in the conclusion reached by the trial judge.


text:
    No. 305
    First Circuit
    COMMERCIAL SECURITIES CO. v. HARRIS
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Bills and Notes— Par. 232; Appeal — Par. 521.
    Where the defendant denies the signature to a 'note as genuine, proof hy comparing the signature with that on the act of sale and the oath made in defendant’s ’ answer is not sufficient. There-, fore the suit will be dismissed as of non-suit.
    Appeal from the Parish of Pointe Coupee. Hon. W. C. Carruth, Judge.
    Action hy Commercial Securities Company against J. O. Harris.
    There was judgment for defendant and plaintiff appealed.
    Charles A. Battle, of Baton Rouge, attorney for plaintiff, appellant.
    M. T. Hewes, of New Roads, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff sues defendant on a note alleged to he secured by a chattel mortgage on an automobile, and prays for judgment on the note and for recognition of the act of mortgage. Judgment affirmed.

In an answer, sworn to by defendant, he alleges that he did not sign the note and did not make any payment thereon, and that he did not sign the act of sale and chattel mortgage nor grant same.

The act of mortgage, not having been signed by notary public, is not in authentic form as required by law, Acts 1918, No. 198; hut it would be good as between the parties, as a private Act, if it had been signed by the defendant. The answer placed on plaintiff the burden of proving defendant’s signature to ■ the note and act of mortgage.

Code Practice, Articles 325 and 483.

Civil Code, Articles 2232 and 2244.

The plaintiff obtained an order from the court to take the testimony of J. H. Hale, a resident of Avoyelles parish, before whom the act of mortgage was said to have been executed. The court granted the order but directed it to Wade Norman, notary public. The clerk of court issued the commission to S. Allen Bordelon, notary public, who executed it and sent the testimony back to the clerk of court.

When plaintiff offered the testimony in evidence defendant objected, on the ground that the court had ordered that it he taken hy Wade Norman, notary public. The objection was correctly maintained.

The plaintiff contends that defendant’s signature to the note and act of sale and mortgage is proved by comparing it with the oath he made to his answer.

The district judge did not think that defendant’s signature was thereby satisfactorily proved. We come to the same conclusion, but will render a judgment of nonsuit.

For these reasons the judgment appealed from is affirmed; but same'to stand and have effect as a nonsuit. •

Plaintiff and appellant to pay the • cost in both courts.


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    No. -
    First Circuit
    MORRISON v. WEBER-KING MFG. CO
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    Section 6 of the Employers’ Liability Act No. 20 of 1914, as amended by Act 38 of 1918, is intended to protect employees of sub-contractors, but does not apply where the employer was not a sub-contractor nor defendant the principal contractor,
    (The recent amendment to Act 20 of 1914 is Act 85' of 1926. — Editor’s note.) '
    Appeal - from Parish of Vernon. ' Hon. Hal A. Burgess, Judge.
    Action by A. L. Morrison against Weber-King Manufacturing Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys .for.,defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment refusing his demand for compensation.

The Weber-King Manufacturing Company is engaged in the lumber business and was buying saw-logs from one J. F. Robinson. The plaintiff, Morrison, was an employee of Robinson; he was injured while working for Robinson and sues the defendant for" compensation, basing his right of action on Section 6 of the Employers’ Liability Act, as amended by Act 38, p. 52, of 1918. _ •

The. section of the Act relied on pro- . vides, in substance, that where any person undertakes to execute any work, which is a part of his trade, business or occupation, or' which he had contracted to perform, and contracts with another person for the execution of the whole or part of the work, he shall be liable to pay any employee employed in the execution of the work, as if that employee had been immediately employed by him, etc.

Defendant did not undertake to execute the work which Robinson was doing when plaintiff, in assisting to do that work, was injured. Robinson was not a subcontractor, but was executing ithe work for his own account; he was engaged in cutting timber -in order to sell the logs to defendant. Defendant had nothing to do with felling the timber and cutting same into logs. The evidence in the record fully sustains that fact. Defendant had contracted to buy from Robinson saw-logs delivered on the skidder at its mill in consideration of ten dollars per thousand. Defendant had no interest in these logs, as owner or. otherwise, until -they were- delivered and paid for, at its mill. It was simply buying from Robinson a commodity which was owned, prepared, transported and delivered by Robinson.

The section of the Act upon which plaintiff relies is evidently intended to protect employees of subcontractors and to give them a cause of action against the principal contractor, but in this instance Robinson was not a subcontractor, nor was defendant a principal contractor.

The judgment appears to be correct and should be affirmed, and it is so ordered.


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    No. -
    First Circuit
    REDMOND & SON v. WOOD
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Mandate—Par. 88 89, 90.
    The owner of a filling station is liable for the unauthorized purchase of tires by the person in charge' of the station where he misleads the seller by his conduct and actions.
    Appeal from the Parish of East Baton Rouge. Hon. W. Caruth Jones, Judge.
    Action by B. V. Redmond & Son against Charles P. Wood.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Jess Johnson, of Baton Rouge, attorney for plaintiff, appellee.'
    Sanders & Gottlieb, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The claim in suit is for the purchase price of automobile tires, and amounts to one hundred and ninety-three and 76-100 dollars. The tires were sold in two lots, on December 18 and December 26, 1924, by S. B. Defuentes, a traveling salesman of plaintiff, to William Kolwe, a young man apparently in charge of and acting as manager of defendant’s gas and oil filling station at Ponchatoula in the parish of Tangipahoa, and they were received by and delivered in due time to the persons in charge of said filling station. Defendant does not deny that the tires were purchased and delivered as stated, nor does he contest the price charged for the tires, but he denies that such purchase was made under his sanction and by his authority, and for that reason disclaims liability. The trial judge rendered judgment in favor of plaintiff and defendant has appealed.

When Defuentes, plaintiff’s regular salesman, went to defendant’s filling station in December, 1924, he found, in charge of that station, William Kolwe, a young man who, from his size and demeanor, appeared to be about' 23 years of age, and sold him a lot of automobile tires, presumably to' be kept in stock and for sale at the filling station. In this, there was nothing unusual, for it is a matter of common knowledge that all filling stations, which now abound all through the country, .usually keep a stock of automobile accessories, such as tires, tubes, valve parts and spark plugs, in addition to lubricating oils, gasoline and free air and water. A few days or a week later Kolwe gave plaintiff another order for more 'tires, and the only solicitude on the part of plaintiff was as to the credit standing of defendant. The tires were shipped to the filling station, where they were received and presumably sold in due course of business.

Plaintiff then mailed invoices for the tires, and, receiving no remittance, wrote and addressed several letters to defendant, but received no reply to any of its communications. It was only when the present suit was instituted that the plaintiff ■ was informed that defendant disclaimed liability for the reason that Kolwe , had no authority to purchase the tires. Defendant says that Kolwe’s authority only extended to the buying and selling of lubricating oil and gasoline, and he contends in substance that Kolwe was only a boy, T9 . years of age, and that it was plaintiff’s duty before selling to inquire from him whether Kolwe had authority to buy tires. ■ Defendant’s position seems unreasonable. , Conceding that Kolwe was a minor, and that fact has little bearing on the question at issue because a minor may exercise I the authority of an agent, -there was ‘ nothing about Kolwe, in his appearance : or demeanor, to indicate his minority. ' Kolwe was undoubtedly in charge of the ■ station, and, if he had authority to buy , lubricating oil and gasoline, there was . no reason why he could not also have had ■ a similar authority to buy and sell tires. Defendant, at the time the sales were made to Kolwe, lived in Baton Rouge, where he had removed during the month of September to accept a position with the Louisiana Highway Commission. He left Kolwe in charge of his filling station and thus impliedly held him out to the world as his accredited and authorized representative to conduct the business of that station.

The evidence justifies the conclusion that plaintiff acted with ordinary care and prudence and according to usual and customary business methods, and that, if led into error, it was by the conduct and actions of defendant, and equity requires that defendant should reimburse plaintiff, the value of the goods from which he profited.

For these reasons the judgment of the District Court is affirmed.


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    No. -
    First Circuit
    GROSE v. LIBERTY INDUSTRIAL LIFE INS. CO.
    (May 3, 1927. Opinion and Decree.)

      (.Syllabus by the Editor)
    1. Louisiana Digest — Insurance—Par. 43, 123.
    Where an insurance policy stipulates no payment made “for injury received while violating the law” and “in consequence of a criminal act”, the beneficiary can recover for death of the insured killed by a murderous assault without provocation after the first combat had ceased.
    2. Louisiana Digest — Homicide—Par. 2.
    Where a combat had been abandoned and', without any further provocation, one is killed, the proximate cause of death is an independent event not connected with the original combat.
    Appeal from Allen Parish. Hon. Jerry Cline, District Judge.
    Action by Mary Grose against Liberty Industrial Life Insurance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Reed & Blackshear, of Oakdale, attorneys for plaintiff, appellee.
    L. J. Mayeux, of Oberlin, and Guión & Upton, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

Luther Grose took two life insurance policies in defendant company, one on July 24, 1924, and the other February 23, 1925, for an aggregate amount of $632.56. Mary Grose was made the beneficiary in the two policies. Luther Grose was killed by Lanhopp in June, 1926. Plaintiff brings this suit as beneficiary to recover the amount of the policies. Judgment was rendered in her favor for the amount claimed.

In one of the policies the insured is denied any benefit “for injuries received by him while violating the law”, and in the other it is also stipulated that there can be no recovery on the policy for death of the insured “in consequence of a criminal-act”.

The solution of the issues presented depends on a proper application of these stipulations or provisos of the policies to the facts of the case.

Luther Grose, the insured, was playing a game of dominoes 'with Owen Lanhopp. For some reason or other they got into a quarrel. Grose picked ’ a pop bottle and assaulted Lanhopp with it. They clinched and were separated. A few minutes intervened, and they again clinched and were again separated. The witnesses do not agree as to the time which elapsed between the first and second fights. It would seem from the evidence that about a minute or two intervened between the two difficulties. After the second encounter, it appears that Riley, who had separated the combatants, said to Grose: “Go out of here,” and that Grose answered: “I will, soon as I get my hat;” that he picked his hat from the floor, placed it on his head, proceeded towards the door to walk out, and that as he was a short distance from the door, Lanhopp suddenly rushed! on him, stabbing him to death. It is: clearly shown that when Grose was thus: walking towards the door and was stabbed!, that he was unarmed. The interval which elapsed between the second encounter and the time Grose was stabbed is not fixed with any degree of certainty by the witnesses. Some say that the interval was about one minute, while others estimate it to be as much as four minutes. There must, however, have been cooling time, as Grose, in obedience to the order from Riley, expressed his willingness to go, and was actually leaving the scene of trouble when Lanhopp, without the least provocation, suddenly assaulted him with his knife and killed him. When Grose was walking; towards the door, peacefully, with the idea evidently of getting out of the building, he was acting in obedience and not in contravention or violation of law. It was then he received the injuries of which he soon after died, and he was certainly not “violating the law” at that time so as to operate a forfeiture of his rights as an insured under the stipulation in- one of the policies. It is equally certain that when Grose was thus leaving the scene of trouble, that it cannot be said he was showing the slightest disposition to commit a criminal act. It must be noted that the stipulation in the other policy which exempts the defendant from liability, is when death occurs to the insured “in consequence of a criminal act”. As there was no criminal act committed by Grose, the insured, and none intended, it cannot be held that his death was a “consequence of any such act”. Counsel for defendant contends that Grose, the insured, was the aggressor in the original quarrel; that the trouble, which finally resulted in the death of Grose, was a continuous transaction, Grose remaining to the end in the attitude of an aggressor. He was the aggressor when the trouble started, as that fact is established by the evidence. As to the second encounter, the evidence failed completely to show who was the aggressor. Though the aggressor, originally, there was certainly sufficient time for passion to have subsided, and for reason to 'have resumed its sway when Grose proceeded to walk out of the building. At that time he was unquestionably gtetting away from the scene of the conflict. Under such circumstances it has been held, if the party retreating is killed, the act of his adversary in thus killing'him is to be considered the proximate cause of death rather than the original violation of law by the insured. Sup. Ldg. K. of P. vs. Bradley, 73 Ark. 274, 83 S. W. 1055, 108 Am. S. R. 38, 67, L. R. A. 77013 Am. Cases.

When the combat has been abandoned by the insured, without any further provocation to his adversary than the original assault, and he is killed, this must be considered an independent event produced by the revengeful spirit of the slayer, and is the proximate cause of death. Gluff vs. Mutual Benefit Life Insurance Company, 99 Mass., Bradley vs. Mutual Life Insurance Company, 43 N. G. 422, 6 Am. R. 115. The doctrine announced in the case above cited fits the facts of this case and relieves the beneficiary of the- imputation that the insured lost his life in consequence of a criminal act, or that he was killed while violating the law. He was simply the defenseless victim of a murderous assault which cannot be held to have entailed a forfeiture of the policies.


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    No. -
    First Circuit
    OPELOUSAS FINANCE CO. v. ROOS
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Citation and Appearance — Par. 17, 23.
    Act 179 of 1918 has superceded and taken the place of Article 192 of Code of Practice and, therefore, the wife must ' have service of citation made on her in person or at her domicile as provided by Act 179 of 1918 and Code of Practice 189.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Opelousas Finance Company, Inc., against Mrs. Emma Roos, wife, et al.
    There was judgment for plaintiff and defendant appealed.
    Case remanded to the lower court for further proceedings.
    Sandoz & Sandoz, of Opelousas, attorneys for plaintiff, appellee.
    Dubuison, Perrault . & Burleigh, of Opelousas, attorneys for defendant, appellant
   ELLIOTT, J.

In suit against wife and husband. Personal service was made on husband but not at domicile. Judgment by default was confirmed against wife and husband. The wife appeals, claiming that the judgment against her should be annulled for the reason that sheriff’s return on citation shows that she has not been cited as the law requires. Acts 1918, No. 179, Section 1, Paragraph 3.

Opelousas Finance Co., Inc., brought suit against Mrs. Emma Roos and Jonas Roos, her husband, on nine promissory notes for $23.96 each, all signed by Mrs. Roos, but only seven of them signed by the husband. Judgment by default was confirmed against them. Mrs. Roos appealed and urges that the judgment as to her should be annulled and avoided, on the ground that the sheriff’s return on the citation does not show that' she has bees cited as the law provides.-

The notes are annexed to and made part of plaintiff’s petition.

The clerk of court issued but one citation, addressed to “Mrs. Emma Roos, wife, and Jacob Roos”. The petition alleges that the defendants are husband and wife. The return on the citation reads as follows ;

“Received the citation, together with a certified copy of petition thereto attached on the 25th day of October, 1926; and on the 28th day of October, 1926, I served the aforesaid copies of citation and petition on Jonas Roos by handing the same to him in person, in St. Landry parish.”

The Code of Practice, Article 182, provides :

“Nevertheless, if the defendants are husband and wife * * * it ■ will be sufficient to deliver one single citation and one single copy of the petition to the person representing such defendants.”

Article 192:

"If the petition and citation be directed against a married woman, noF separated in bed and board from her husband, the service may be made by delivering to either husband or wife.”

ü.ct 179 of 1918, Section 1, Paragraph 3, provides:

"in suits against married women service shall be made in person or at hei uomicile, as in the case of any other person.”

Section 5: “All laws or parts of laws n conflict herewith, or on the same subject matter, be and the same are hereby repealed.” ■

. It is urged in behalf of Mrs. Roos that this law, Act 179 of 1918, Section 1, Paragraph 3, has repealed and superceded the provisions of the Code Practice Art. 192; and that the sheriff’s return does not show that Mrs. Emma Roos has been duly cited as the law now provides.

We have concluded that the Act 179 of 1918 has superceded and taken the place of Art. 192 of the Code of Practice insofar as concerns service on the wife. The wife must now have service made on her in person or at her domicile, as provides the Code Practice, Art. 189.

The sheriff’s return does not show that either kind of service was made on Mrs. Emma Roos. It therefore does not appear that she has been cited as the law provides.

The judgment confirming a default against her is therefore illegal and must be set aside.

For these reasons the judgment appealed from herein, to the extent that it is against Mrs. Emma Roos, is annulled, avoided and set aside, and the case is remanded to the lower court for further proceedings as the law provides.