author: WEBB, J. Per curiam.

text:
    No. 2728
    Second Circuit
    COLE v. CENTRAL CONTRACTING CO., ET AL.
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Evidence—Par. 351.
    Where the evidence of the plaintiff and two other witnesses is not contradicted and the physical circumstances are not in conflict' with their testimony, the fact must be considered proven by the preponderance of evidence.
    2. Louisiana Digest — Negligence—Par. 11; Municipalities — Par. 258, 265.
    Where the contractor, during the construction of a building lays a small iron pipe across the cross walk of an alley used by the public, he is negligent and liable for any damages arising therefrom.
    3. Louisiana Digest — Negligence—Par. 21, 22; Municipalities — Par. 263.
    A pedestrian whose attention- was not directed to a small iron pipe laid across a cross walk of an alley which was used for vehicular traffic will not be considered guilty of contributory negligence in stumbling and falling over the pipe while watching for vehicular traffic in crossing.
    4. Louisiana Digest — Municipalities—Par. 255.
    A cross walk over an alley is part of the sidewalk and the duty of maintaining it in a reasonably safe condition is the same as to any other • part of the sidewalk.
    5. Louisiana Digest — Negligence—Par. 21, 22; Municipalities — Par. 263.
    The fact that one who used a cross, walk over an alley must step down on leaving the sidewalk and up' again at the other side of the alley does not make that person guilty of contributory negligence if she does not notice an iron pipe across her path a few feet from the curbing.
    6. Louisiana Digest — Damages—Par. 105.
    Ten thousand dollars ($10,000.00) is sufficient quantum of damages for permanent injury to leg broken above the knee and pain and suffering where twenty-one months after the injury she walked with a marked limp.
    (ON APPLICATION FOR REHEARING)
    7. Louisiana Digest — Judgment—Par. 197, 198, 211; Partnership — Par. 115.
    A judgment against a «partnership composed of A and B and a city is' not a judgment against the individual partners but against the partnership and the city, individually and in solido.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell. Judge.
    Action by Miss Bettie Cole against Central Contracting Company, et al. '
    There was judgment for plaintiff and defendants appealed.
    Judgment amended and affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    John B. Files; B. F. Roberts, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This action was brought by the plaintiff, Miss Bettie Cole, against J. B. Slattery, the Central Contracting Company, a partnership, and the individual members thereof who were Edgar C. Maclay and Henry C. Beck, and the city of Shreveport, to recover damages alleged to have been, sustained by plaintiff through the negligence of defendants.

Plaintiff alleged, in substance, that the Central Contracting Company in executing a contract entered into between it and J. B. Slattery, had laid or caused to be laid in and across an alley at a point where the alley constituted a part of the sidewalk, an iron pipe and that plaintiff, in passing along the sidewalk tripped by striking her foot against the pipe and fell, sustaining serious and permanent injuries; that J. B. Slattery and the Central Contracting Company were negligent in liaying and maintaining the pipe on the alley and that the pipe as laid and maintained constituted a danger and public nuisance and the city of Shrevep’ort, with knowledge of the condition, permitted the pipe to remain in such position.

A non-suit was entered as to J. B. Slattery. .

The Central Contracting Company, and the members of the partnership, and the city of Shreveport, after filing motions and exceptions, which are not pressed here, answered pleading, in effect, a general denial and alleging that plaintiff was not exercising ordinary care.

The cause was tried before a jury, which returned a verdict against defendants Central Contracting Company, the individual partners, and the city of Shreveport for twelve thousand, five hundred dollars, with legal interest. thereon from May 8, 1925, and all costs.

The defendants moved for a new trial, which was refused, and judgment was rendered against them in solido in accordance with the verdict of the jury, and they appealed.

OPINION.

During March, 1923, the Central Contracting Company, a partnership composed of Edgar C. Maclay and Henry C. Beck, acting under a contract between it and J. B. Slattery, began the construction of a building on a lot situated at the corner of Texas and Marshall streets in the city of Shreveport.

The lot extends back south from Texas street on Marshall street a distance of one hundred and fifty feet to an alley which is twenty feet in width and which divides the block (bounded on the north and south by Texas and Milam streets and on the east and west by Edwards and Marshall streets) in which the lot is situated.

The contracting company obtained, a permit from the city of Shreveport to erect the building, and during the construction work it erected a “run around” or covered walk in the roadway of Marshall street, next to the sidewalk, which walk extended from Texas street to and across the point where the alley opened upon Marshall street, along which pedestrains desiring to, passed from Texas street to Milam street.

There was an accumulation of water from some source in the basement of the building during the period, of construction which was taken care of by the contracting company by pumping it out as it accumulated'through an iron pipe two inches in diameter which led out from the basement to the alley and thence along the alley and over that part of the alley constituting a part of the sidewalk, or more properly the cross walk,. between the curbs of the sidewalks on the north and south sides of the block, opening into the drain on Marshall street.

The pipe was underneath the covered walk during the period of active construction of the building (which was about' eighteen months) but after the work had been nearly completed and a new sidewalk laid next to the building on Marshall street (which is known as the Slattery Building) the covered walk was removed, leaving the pipe in the alley extending over the crot(.s walk, thus permitting the use of the sidewalk and cross walk by pedestrians and permitting the use of the alley for vehicular traffic between Marshall and Edwards streets.

The plaintiff’s place of business was in an office building situated at the southwest corner of the intersection of Marshall and Milam streets and on the day of the accident, which occurred at about 3 o’clock in the afternoon, plaintiff had gone east along Milam • street until she came to Edwards street, thence to Texas street, and, in returning to her place of business, she proceeded west along the sidewalk on the south side of Texas street until she reached the intersection of Texas and Marshall streets where she turned south into Marshall street and passed over the sidewalk next to the Slattery Building and thence onto the alley or cross walk where she tripped and fell.

The topographical situation which would have been presented to one passing over the sidewalk on Marshall street at the time of the accident' from Texas and Milam streets and maintaining a close observance was the concrete sidewalk next to the Slattery Building extending to the alley where it ended in a curb about nine inches above the level of the alley, then.ce the cross walk over the alley which was paved with brick and upon which there was laid the iron pipe at a distance of about three feet from the curb of the sidewalk next to the Slattery Building, thence the curb' of the sidewalk on the south of the alley which was about three or four inches above the level of the alley or cross walk, thence a concrete sidewalk extending to the intersection of Marshall and Milam sreets.

The defendants urge several defenses which may be paraphrased as follows:

1st. The preponderance of the evidence does not show that plaintiff tripped on the pipe.

2nd. The pipe did not constitute an obstruction within the meaning of the law.

3rd. That plaintiff knew of the condition of the alley and that the pipe had been left on the cross walk and should have avoided' it.

4th. That the plaintiff saw the pipe, or must' be held to have seen it, in the exercise of ordinary care.

5th. That the amount of twelve thousand, five hundred dollars awarded plaintiff was excessive.

I.

This defense relates solely to a question of fact.

The plaintiff and two other witnesses testify that she tripped op the pipe. No other. witnesses testify to the contrary, and we dq not find that the evidence establishes any physical circumstance in conflict with the testimony of the witness nor inconsistency in their testimmony which would authorize us to reject their testimony.

II.

This defense is based upon the rule that not every inequality in the surface constitutes a defect or obstruction of the way and that there are instances1 where objects (of such dimensions .as to ordinarily constitute an obstruction) are placed upon the sidewalk and the city cannot be held guilty of negligence, from which the defendants contend that the pipe did not constitute a defect or obstruction of the sidewalk and if it was an obstruction that it was a necessary and temporary obstruction and the defendants cannot be held to have been negligent.

No case has* been cited in which it was held that an iron pipe of small diameter ■when placed across the sidewalk does not constitute an obstruction, while it has been held in other jurisdictions that objects of similar dimension when placed on the sidewalk do constitute obstructions.

Defendants cite Goodwin vs. City of Shreveport, 134 La. 820, 64 So. 762, where the court, in considering an action for damages brought by a pedestrian who had tripped and fallen on an inequality in the elevation of a continuous walk (parts of which had been constructed at different times) held that the city was not liable; but we dq no.t think the ruling in the cited case supports the defendants’ contention that the pipe was not an obstruction.

• Conceding that the law applied in the case cited, could be applied to the contracting company, the inequality in the street or sidewalk in the Goodwin case was such aa necessarily results from deterioration and lapse of time and not from an object being placed upon the walk; and, besides, the inequality shown to have existed - in the Goodwin case was not as great as that created' by the pipe being laid on the sidewalk as in the present instance.

The evidence does not show that the pipe was laid on the sidewalk as a matter of public necessity or that it was merely a temporary obstruction, or that its presence was indicated by the conditions which may have rendered it necessary to be laid on the sidewalk. On the contrary, the record shows that it was laid by a contractor in executing a contract with which the public did not have any connection or interest and that’ it remained on the walk for about one month. Neither does it appear that the water which had accumulated in the building could not have been removed without obstructing the sidewalk.

III.

While the evidence indicates that the plaintiff was familiar with the -locality, that is, she knew of the existence of the alley and that the Slattery Building had been in course of construction for a long period of time and that the sidewalk and alley had been covered during the period of construction, this does not show that she knew that the pipe had been laid in the alley and across the cross walk and was underneath the covered walk .during the period of construction of the building or that it Was- left on the walk after the covered way was removed and the walk thrown open for the use of the public, and we cannot' assume that she did know of the obstruction in the face of her uncontradicted declaration that she did not.

IV.

This contention is two-fold, one that plaintiff saw the pipe when she approached or stepped into the alley, and, if not, she should be held to have seen it, and that having failed to guard against the apparent obstruction she cannot recover.

The plaintiff testified that when she arrived at the edge of the sidewalk she looked down or watched her step and that she also looked to see whether or not there was any vehicular traffic on the alley, and as we understand, the defendants contend that the pipe being at a distance of three feet from the curb the plaintiff must have seen the pipe when she looked down to watch her step.

The plaintiff, however, testifies that she did not see the pipe, and considering that her attention was directed to watching her step and . observing the alley to note whether or nqt there was any vehicular traffic and the size of the pipe, it can be well understood why the plaintiff did not see the {pipe or that seeing it' no impression was made on her- mind.

Whether the plaintiff should be held to have seen the obstruction and been guilty of negligence in failing to avoid it, depends upon the prominence of the obstruction and the place where it was 3ftuated.

The evidence does not show that the pipe was so conspicuous, that one, in walking on the concrete walk at the Slattery Building going towards the alley must necessarily have seen it. On the other hand, it is shown that the level of the alley was below the sidewalk, and as the pipe projected only two inches above the pavement, we cannot say that the plaintiff should be held to have seen the pipe before she came to the alley.

The record does not show that any work was being done on the sidewalk next to the Slattery Building which plaintiff traversed before arriving at the alley; nor does it show that any work was being done on or near the alley; nor is there any other circumstance shown that should have caused plaintiff to anticipate any obstruction of the sidewalk.

The (plaintiff was bound to take notice of the alley, and of the fact that vehicular traffic pasoed over the cross walk at that point, and of the difference in the level of the cross walk and the sidewalk; and it appears from the evidence that she did take such notice, which necessarily diverted her attention from the way and caused her not to see the pipe which was in such a position that it cannot be said that she must necessarily have noticed it when She looked down when stepping from the curb to the alley.

The cross walk was a part of the sidewalk and the duty of maintaining it in a reasonably safe condition was the same as to any other part of the sidewalk (R. C. L., vol. 13, p. 397), and the evidence not showing that there were any apparent conditions that required the plaintiff to anticipate obstructions on. the walk, we are of the opinion that', it being shown that her failure to note the obstruction was due to her attention being directed to the alley with reference to vehicular traffic that may have been on or approaching the cross walk, she was not guilty of negligence. (Weber vs. Union Dev. & Con. Co., 118 La. 77, 42 So. 652; McCormack vs. Robin, 126 La. 598, 52 So. 779.

The-' obstruction in the alley, considering the fact that the level of the alley was below the level of the sidewalk, and that the alley was open to vehicular traffic, was such that the defendants should, in the exercise of ordinary care, have anticipated that the attention of persons using the cross walk would be diverted from the way and they would fail to' observe an obstruction thereon, and the accident which occurred was no more than should reasonably have been anticipated.

Y.

The plaintiff’s leg was broken just above the knee, she was confined in a hospital for about forty days, was unable to use her limb for about six months and was- disabled for more than one year. She suffered severely, and at the date of the trial, about twenty-one months after the injury, she did not have normal use of her limb which was still weak and shorter than before the accident, causing her to walk with a marked limp.

Plaintiff incurred obligations for nurses and hospital charges and lost a considerable amount by reasons.of her inability to work for a year after the accident, which losses we find would amount' to about thirty-five hundred dollars.

The injury sustained by the plaintiff was' serious and her actual loss therefrom was, as stated, considerable; but the amount for which judgment was rendered was very much in excess of that which has been allowed in cases where the injury was equally as serious. (Moore vs. Pickering Lumber Co., 105 La. 505, 29 So. 990; Carter vs. Dubach, 113 La. 239, 36 So. 952; Weinhardt vs. New Orleans, 125 La. 351, 51 So. 286; Dougherty vs. New Orleans Ry. Co., 127 La. 225, 53 So. 532; Guidry vs. Morgan’s L. & T. R. R. & S. Co., 140 La. 1007, 72 So. 993; Southall vs. Smith, 151 La. 967, 92 So. 402), and we are of the opinion that, considering' the actual loss sustained by the plaintiff, judgment for ten thousand dollars would be more in conformity with the amounts heretofore allowed in such cases.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed to ten thousand dollars, and, as thus amended, the judgment is affirmed.

ON APPLICATION FOR REHEARING.

Per curiam.

Counsel for defendant, Central Contracting Company, and the members of that partnership, suggests, among other errors of this court, that judgment was rendered against' Edgar C. Maclay and Henry C. Beck, the individual members of the partnership, in solido, with said partnership and the city of Shreveport when the record shows that no issue was joined as to the partners individually.

Counsel is in error, for we merely amended the judgment appealed from by reducing the amount from $12,500.00 to $10,000.00, and, as thus amended, the judgment was affirmed.

The district court did not grant judgment against the individuals composing the partnership. Judgment was granted against—

“* * * Central Contracting Company, a partnerchip composed of Edgar C. Maclay and Henry C. Beck, and the city of Shreveport, defendants, individually and in solido.”

Maclay and Beck are mentioned only as composing the partnership. We do not interpret the judgment of the district court as one against the individuals composing the ¡partnership hut a judgment only against the partnership and the city of Shreveport, individually and in solido.

Rehearing refused.


source: Caselaw Access Project

author: REYNOLDS, J. ODOM, J.

license: Public Domain

text:
    No. 2491
    Second Circuit
    DEVILLE v. COUVILLION
    (March 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Reversed on Rehearing.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 29.
    “The laborer is worthy of his hire.”
    2. Louisiana Digest — Equity—Par. 5.
    “One must not enrich himself at the expense of another.”
    3. Louisiana Digest — Landlord and Tenant — Par. 9, 56; Mortgages — Par. 203.
    Crops growing on leased land under a recorded lease and produced ■ by the lessee, are the property of the lessee; and a purchaser of the land on which the crops( are growing takes the same subject to the right of the lessee to have his crops on accounting to the owner for the lease price. Lewis vs. Klotz, 39 La. Ann. 259.
    4. Louisiana Digest — Landlord and Tenant — Par. 56, 70; Mortgages — Par. 202, 203.
    Where the growing crop of a lessee is • seized and sold along with the land under foreclosure of a mortgage, the seizing creditor is liable to the lestee for 'the full value of the crop.
    Sandel vs. Douglas, 27 La. Ann. 629.
    5. Louisiana Digest — Landlord and Tenant — Par. 56; Mortgages — Par. 202, 203.
    The sale under mortgage foreclosure of a plantation on which there is a growing crop grown by a lessee of the land under a recorded lease, transfers the plantation subject to the lessee’s right to reserve his crops upon ¡paying to the purchaser the lease price of the premises.
    Porche vs. Bodin, 28 La. Ann. 761.
    (REVERSED ON REHEARING.)

      (Syllabus by the Editor.)

    6. Louisiana Digest — Landlord and Tenant — Par. 58; Mortgages — Par. 203.
    The sale of mortgaged property under judicial process dissolves a lease on the property made and recorded subsequently to the execution and registry of the mortgage.
    7. Louisiana Digest — Mortgages—Par. 75.
    Under Articles 3342 and 3347 of the Civil Code, “registry of the mortgage is notice to the world that it existed— and particularly to those who made any lease with reference to the mortgaged property”.
    8. Louisiana Digest — Landlord and Tenant — Par. :54, 56; Mortgages — Par. 197.
    The purchaser at a judicial sale under a • prior existing and registered mortgage can take possession of the property regardless; of a lease recorded thereafter under which there is a growing crop at' the time o.f the sale.
    Appeal from the Twelfth Judicial District Court qf Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Ulric Deville against C. P. Couvillion, sheriff, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed. On rehearing former judgment set aside, injunction dissolved, and plaintiff’s demands rejected.
    Bordelon & Norman, of Marksville, attorneys for plaintiff, appellee.
    J. W. Joffrión, of Marksville, attorney for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Ulric Deville leased from the owner, one Bellevue Bordelon, at $3.00 per acre, ten acres of land on which to make a crop during the year 1925, and had his lease duly recorded. Thereafter he planted, cultivated and “laid by” a. crop of cotton on the land so leased.

On June 13, 1925, the ten acres, along with other land, was sold under foreclosure of a vendor’s privilege and mortgage granted by Alfred C. Bordelon, through whom plaintiff’s lessor acquired title, and was purchased by the defendant, Purdy-Hess Company.

Purdy-Hess Company on becoming the adjudicatee of the property, through its agent, F. D. Brouillette, notified Ulric Deville that it would “nail the gates of the field” and accordingly did nail up the gates through which Deville traveled in going to and coming '.from his crop of cotton.

Ulric Deville sued out a temporary injunction restraining the sheriff and PurdyHess Company from interfering with his cultivation or possession of the crops.

On trial the ruit was decided in favor of Ulric Deville and he was decreed the owner of the crop, subject to the payment of the lease price agreed upon with his lessor. The defendants have appealed.

OPINION.

The question to be decided is whether or not' a purchaser of a plantation at sheriff’s sale under foreclosure of a vendor’s privilege and mortgage thereby becomes the owner of a crop growing on the land raised by a lessee under a duly recorded lease from a lessor whose title traces back to the mortgage debtor, or does he acquire the crop cum onere as to the lessee’s rights therein?

This question was decided in favor of the lessee in Porches vs. Bodin, 28 La. Ann. 761.

Our learned brother of the district court in a, well written opinion in this case reviewed the jurisprudence of the state on this point arid rendered judgment in favor of the plaintiff.

Under the evidence and the authorities cited by Judge Gremillion, his decision is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.

ON REHEARING.

ODOM, J.

On reconsideration of the case we have reached the conclusion that our former opinion is erroneous.

The facts in the case are not disputed apd are as follows:

In the month of December, 1918, the Purdy-Hess Company sold eighty acres of land in the parish of Avoyelles to Alfred C. Bordelon for part cash and the balance on terms of credit; the credit portion of the price being represented by notes secured by the vendor’s mortgage and privilege on the land.

The act of mortgage contained the pact de non alienando and was duly registered in the mortgage records of Avoyelles parish.

Shortly thereafter Alfred C. Bordelon sold part of the same land to Bellevue Bordelon who asteumed the payment of one-half of the outstanding vendor’s notes due the Purdy-Hess Company.

On January 11, 1925, Bellevue Bordelon leased that part of the property which he had purchased to Ulric Deville, the plaintiff herein, for the year 1925.

The lease to Deville was in writing and was duly recorded in the parish of Avoyelles where the property, is situated.

Deville took possession of the property under his lease and planted thereon a crop of beans and cotton.

In May, 1925, the Purdy-Hess Company, being the holder and owner of the original vendor’s lien notes, which were then past due, foreclosed its mortgage and proceeded against Alfred C. Bordelon, the original purchaser of the land. The land was seized by the sheriff on May 7, 1925, and was sold by him under executory process on June 13th following. The property was purchased by the PurdyHess Company at said sale, the seizure and sale including that portion of the land which had been sold by Alfred C. Bordelon tq Bellevue Bordelon and on which the plaintiff, Deville, held a lease.

Immediately after the sheriff executed the deed to the Purdy-Hess Company it demanded possession of the property and its representative with the sheriff went upon the land, took possession, nailed up the gates and ordered Deville, the lessee, to keep off the land.

Whereupon, Deville, the lessee, brought this suit to enjoin the sheriff and the Purdy-Hess Company, the purchaser, from interfering with his rights to go upon the land for the purpose of cultivating and gathering his crop which was then growing and immature.

The plaintiff alleges that he leased the land from Bellevue Bordelon for the year 1925, for the purpose of making a crop thereon; that he had planted his crop, the cotton being then in bloom with some grown bolls thereon and almost ready to “lay by”; that it needed some further cultivation; that he is entitled, under his lease, to go upon the land for the punpose of cultivating his growing crop and for the purpose of harvesting it when it matures, and that the conduct of the sheriff and the purchaser in thus taking possession of the land will deprive him of his produce under the leash; and he prayed for an injunction,

“* * * restraining them from interfering with petitioner entering in said field and upon said property and from interfering and interrupting with petitioner in working and cultivating of said crops by petitioner, and finally from interfering and interrupting with petitioner in the harvesting and gathering of his said crops of vegetables and cotton.”

Upon this application the court granted an order,

“* * * restraining and enjoining said defendants, from interfering with petitioner in the harvesting and gathering of his said crops, until the further orders of this court.”

Plaintiff in the foreclosure suit, defendant in the injunction suit, in answer admitted its seizure and sale of the property and its talcing possession thereof; but it set up that it had a right to foreclose under its mortgage and to purchase and take possession of the mortgaged property; that the sale of the (property under its mortgage dated in 1918, dissolved the plaintiff’s lease made without its consent in 1925, and gave it the right to take immediate possession of the' property; and it further alleged that the sale of the land carried with it the growing crop.

The ease was tried on April 24, 1925. The court granted the injunction as prayed for upon plaintiff furnishing bond in the sum' of $400.00; the injunction to remain in force until the gathering of the crop, not later than December 31, 1925.

OPINION.

In our original opinion we said:

“The question to be decided is whether or not a purchaser of a plantation at cheriff’s sale under a foreclosure of a vendor’s privilege and mortgage thereby becomes the owner of a crop growing under land, raised by a lessee under a duly recorded lease from a lessor whosé title traces back to the mortgage debtor; or does he acquire the crop cum onere as to the lesse’a rights therein?”

And basing the decision on the holding in the cáse of Porches vs. Bodin, 28 La. ■ Ann. 761, we held that the lessee was the owner of the crop and the injunction was maintained.

While the question of the ownership of the crop after the sale was the only one passed upon by the lower court' and by : this court in our former opinion, yet a consideration of the pleading discloses that the main and in fact the sole question presented for determination is not who owned the growing crop hut whether Purdy-Hess Company, which purchased the land at sheriff’s sale under foreclosure of a mortgage containing the pact de non alienando dated and recorded long prior to the lease under which the plaintiff held, had. a right to disregard the lease ’ and take possession of the land.

The effect, at leant, of our former holding is that the sale was made subject to the lease and that the purchaser had no right to take possession until the termination thereof; for we enjoined it from taking possession and recognized the lessee’s right to hold the property for the remainder of the year.

Considered in this light, it is clear that the decision of the lower court, which we affirmed, cannot stand.

The Purdy-Hess Company foreclosed its vendor’s mortgage, dated and recorded in December, 1918, more than six years prior to the date of Deville’s lease. Deville took the lease with full notice. He had not only the notice which the record of the mortgage conveyed but he had actual notice that the notes were past due, unpaid and that the holders were about to foreclose. He therefore took the lease and possession under it subject to all rights of the holder of the previously recorded mortgage, which expressly provided that the—

“* * * vendee does hereby hind and obligate himself and his heirs not to alienate or -incumber the property herein conveyéd in any manner to the prejudice of this mortgage and vendor’s lien.”

Certainly Alfred C. Bordelon, who purchased from Purdy-Hess Company and granted the mortgage, could not incumber the property with a lease to the prejudice of the vendor’s rights.

. He conveyed to his vendee, Bellevue Bordelon, no greater rights than he had, and it follows that Bellevue Bordelon hy leasing to Deville could convey no rights which he himself did not possess.

The. mortgage granted to Purdy-Hess Company, which was duly registered, was a security for the debt due it by its vendee, Alfred C. Bordelon, for the balance of the purchase price of the land, and under Civi'l Code, Article 3278, it had the—

* * power of having the property seized and sold in default of payment.”

Its rights were fixed on the date of the execution and registry of the act of mortgage and could be exercised by it against third persons as well as against the mortgagor.

A mortgage follows the property into whatever hands it may pass. Civil Code, Article 3282.

The principal and important right which a mortgagee has is to foreclose his mortgage in default of payment and cause the property subject to the mortgage to be seized and sold for the payment of his debt.

Thompson vs. Flathers, 45 La. Ann. 120, 12 So. 245.

Under such sale the property passed free from any sale made by the vendee or any incumbrance, such as a lease, placed thereon by him or other parties subsequent to the execution and registry of the mortgage. Its rights could not be impaired or modified by the lease to Deville without its consent.

The right to sell the mortgaged property carried with it the right to purchase it and to take immediate possession thereof, subject only to the right's and claims of third persons which may have existed on the date of the registry of the mortgage. If this were not true, as was said by the court in Barelli vs. Szymanski, 14 La. Ann. 47:

“Mortgagees could be easily deprived of the security of their mortgages, through the agency of contracts of lease of the character of the one made by defendant with Pelleron, if such contracts were binding upon them. Long leases with the future rents secured by negotiable paper in the hands of third parties would greatly depreciate the value of mortgaged property at judicial sales, made for the payment of the debts of hypothecary creditors.”

The sale of mortgaged property under judicial process dissolves a lease on the property made and recorded subsequently to the execution and registry of the mortgage.

Barelli vs. Szymanski, supra.

Lewis vs. Klotz, 39 La. Ann. 259, 1 So. 539.

Thompson vs. Flathers, 45 La. Ann. 120, 12 So. 245.

Sandel vs. Douglas, 27 La. Ann. 628.

When the property in controversy in this case was sold on June 13, 1925, under judicial process, Deville’s lease was dissolved. As he was in possession under the lease, it followed that when the lease .was dissolved he has no further right of possec/sion. Under his lease he obtained no rights which his lessor did not possess. His lessor could do no act which would in the least impair the rights of the mortgagee.

Brannin vs. Womble, 32 La. Ann. 805.

Carroll vs. Chaffe, 35 La. Ann. 83.

Lee vs. Packard, 25 La. Ann. 397.

Thompson vs. Flathera, 45 Ann. 122, 12 So. 245.

Deville took the property with full knowledge of the rights of the mortgagee.

Under Arts. 3342 and 3347 of the Civil Code:

“Registry of the mortgage is notice to the world that it existed — and particularly to those who made any lease with reference to the mortgaged property.”

Thompson vs. Flathers, supra.

Not only that, but Deville had actual knowledge not only that the mortgage existed but that the debt was past due and would likely be foreclosed. He wanted the property but was d.oubtful as to whether he could hold it, and before taking the lease consulted counsel who advised him to take a written contract or lease and have it recorded. He said he wanted to “play safe”. But under the law his rights were divested by the sale.

This is the law in Louisiana, and we find that courts in other jurisdictions have held to the same rule. In a case note found in L. R. A. 1915-C, page 204, we find the rule stated as follows:

“Where the premit.es are subject to a lien, of course, the owner can convey no estate therein free from the lien. If he grants a leasehold estate therein it is subject to the lien, and a sale based upon the lien passes to the purchaser an estate superior to that of the lessee. Thus, a purchaser at a sale bat'ed uppn a lien, of premises on which a leasehold estate had been created subsequently to the date at which the lien had attached, does not, by virtue of the transfer of title, become the landlord of the lessee, but he as one having) a superior title, may evict the tenant.” Citing authorities.

Counsel for plaintiff, in support of their contention that Deville had the right to detain the property after the lease was dissolved by the sale and therefore to proceed by injunction to prevent the defendant from taking possession of its purchase, cites in brief the cases of Porche vs. Bodin; Lewis vs. Klotz and Sandel vs. Douglas;, supra. But these cases do not support their contention.

In the case of Porche vs. Bodin, the property was sold in September, 1873, after the lessee’s crop of corn was fully matured and ready for harvesting. The purchaser claimed the corn under the sale. The court held that ,the_ sale dissolved the lease but that the lessee owned the corn which was ready to be gathered and had a right to remove it. The question whether the purchaser had the right to take possession under his purchase was not involved and was not passed upon by the court.

The case of Lewis vs. Klotz, is against him.

There the court held that the purchaser had a right to take possession of the one-third of the plantation which he had purchased at judicial sale but not of the two-thirds which he had purchased at private sale. The purchaser found on the plantation certain crops of the lessee which he appropriated. The court held that the crops belonged to the lessee and ordered the purchaser to respond for their value.

The case of Sandel vs. Douglas, is also against him. In that case the court said:

“If the plantation had been c.old by the sheriff pending the lease under the mortgage previously executed containing the non alienation clause the sale would have dissolved the lease and the purchaser could have taken possession.”

In that case the land was seized by the sheriff while the crop was growing. The lessee was not' disturbed in the cultivation of his crop, hut after the cotton was picked, ginned, haled and ready for market it was seized by Silbernagle, a judgment creditor of the land owner. The court held that the cotton belonged to the lessee and that the seizure was unjustifiable and wrong.

In none of the cases citqd and relied upon by counsel was the question, whether a purchaser at' judicial sale under a prior existing and registered mortgage, can take possession of the property involved, the main issue.

Here that is the only question involved, as shown by “plaintiff’s petition and (prayer.

The court specifically enjoined PurdyHess Company from interfering with the lessee in his possession, thereby in effect holding that the purchaser could not take possession under its purchase.

For the reasons assigned, it is ordered, that our former decree be set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be reversed; and further ordered that the injunction herein be dissolved and set aside, and plaintiff’s demands rejected at his cost in both courts.


author: REYNOLDS, J. WEBB, J.

text:
    No. 1838
    Second Circuit
    MARTIN v. IVERSON; GAHAGAN, INTERVENOR AND THIRD OPPONENT
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Reversed on Rehearing.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Estoppel—Par. 2.
    An allegation that intervenor is entitled to prorate with plaintiff in the distribution of the proceeds of the sale of the property does not estop him from after-wards claiming to be paid out of the proceeds by preference over plaintiff because his second allegation did not cause plaintiff to change his position to his disadvantage.
    2. Louisiana Digest — Bills and Notes— Par. 138.
    The holder of a note orders it delivered to the maker, who delivers it to a third person, the holder making no notation that the note was paid; it will be considered a purchase of the note by the third person and not a payment and cancellation of the note.
    (REVERSED ON REHEARING)
    3. Louisiana Digest — Pleading—Par. 15.
    A “motion to strike out” or “plea of estoppel” will be considered, although no affidavit is attached to it.
    4. Louisiana Digest — Pleading—Par. 76, 80, 82.
    The law being silent, a petitioner is allowed- to amend his petition in any respect that the judge finds in the interest of justice, before appearance of his opponent.
    5. Louisiana Digest — Estoppel—Par. 2.
    An intervenor is not estopped from alleging in an amended petition additional facts not in conflict with his original petition, provided this be before issue joined.
    6. Louisiana Digest — Evidence—Par. 58; Bills and. Notes — Par. 219.
    An intervenor who claims that he purchased a note carries the burden of proof that he did.
    7. Louisiana Digest — Bills and Notes— Par. 182, 185, 238.
    Where a note is paid by the drawer, although it is not marked “paid”, and the drawer thereafter turns it over to a third party, it will be considered paid and not a purchase by the third person from the holder, even though the drawer was given the money by the third person to pay it and turn it over to him.
    8. Louisiana Digest — Bills and Notes-— Par. 539, 141, 186.
    The equitable rule that where the holder of notes secured by mortgage assigns one note of the series, he cannot come in competition with the assignee as to the proceeds of the sale of the mortgaged premises, has no application to a note which was paid and afterwards delivered to a third person, although it was not marked “paid”.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action by Thomas J. Martin against Quincy Iverson and W. W. Gahagan, intervenor, third opponent.
    There was judgment for intervenor and plaintiff appealed.
    Judgment affirmed and, on rehearing, reversed.
    L. P. Stephens, Nettles & Bethard, of Coushatta, attorneys for plaintiff, appellant.
    S. R. Thomas, of Coushatta, attorney for intervenor, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

On December 14, 1917, J. O. Lofton, by act before B. F. Allums, a notary public of Bienville parish, sold to Quincy Iverson sixty acres of land situated in Red River parish for $950.00, the price being represented by four promissory notes signed by the purchaser, bearing even date with the act, each for the sum of $237.50, all bearing 8% interest from their date until paid, all drawn payable to the order of the vendor on October 1, 1918, October 1, 1919, October 1, 1920, and October 1, 1921, respectively, all stipulating payments of 10% attorney’s fes in case of being placed in the hands of an attorney for collection, and all paraphed “Ne Varietur” to identify them with the act of, sale which retained a vendor’s privilege on the land to secure their payment.

All four notes were endorsed in blank by J. O. Lofton and transferred to plaintiff, Thomas J. Martin, before maturity and in due course of trade.

The first two maturing. of the notes were not paid at maturity by Qunicy Iverson and were acquired by intervenor and third opponent, W. W. Gahagan, through the firm of J. B. Martin & Company in exchange for his check for $494.00.

The two last maturing of the notes were not paid at their maturity either, and plaintiff brought suit against Iverson in the District Court of Red River parish on these two notes and also on another note signed by him for $53.00, dated February 3, 1920, drawn payable to the order of plaintiff on October 15, 1920, bearing' 8% interest from December 5, 1919, and stipulating payment of 10% attorney’s fees in case of suit for collection, which note, he alleged, was given to him by Quincy Iverson in part payment of the second maturing of the four purchase money notes. He asked for recognition of his vendor’s privilege on the property sold by Lofton to Iverson to secure the payment of the principal, interest and attorney’s fees owing on the two notes for $237.50 each.

Iverson, though duly cited, interposed no defense, and judgment was rendered against him and in favor of plaintiff on January 25, 1922, for $528.00, the principal of the three notes, with' 8% interest on $475.00 thereof from December 24, 1917, and 10% attorney’s fees on the whole, and 8% interest on $53.00 thereof from Decernher 5, 1919, and- 10% attorney’s fees on the whole.

The judgment recognized plaintiff’s vendor’s privilege on the property -jOld by Lofton to Iverson, to-wit: SE1^ of SW% and W% of SW% of SE% of Section 25, Township 14 north, Range 5 west, in Red River parish, to secure the payment of the $475.00 and interest and attorney’s fees thereon and the cost of suit.

Execution was issued on this judgment and under it the property was seized and advertised for sale by the sheriff.

Thereupon intervenor and third opponent, W. W. G-ahagan, filed his petition of intervention and third opposition, in which he alleges that he was the owner and holder in due course of the two first maturing of the four purchase money notes, that they were unpaid, and that to secure the payment thereof he has a vendor’s privilege on the property, which, -he alleges, has been advertised for sale under plaintiff’s judgment against Iverson. He further- alleges that he has brought suit against Iverson on the two notes owned and held by him and that for the payment thereof he enjoys an equal privilege with plaintiff and that out of the proceeds of the sale of the property he is entitled to have the two notes held by him paid concurrently with the two held by plaintiff. He also alleges that as to that part of plaintiff’s judgment against Iverson for $53.00, interest and attorney’s fees, plaintiff has no privilege on the property and is not entitled to have that part of his judgment paid out of the proceeds of the sale until and unless the notes held by intervenor and third opponent have been first paid in full.

Intervenor and third opponent subsequently filed a supplemental petition in which he alleges' that he acquired the two notes held by-- him from the plaintiff, Thomas J. Martin; that by reason thereof the plaintiff “has no right to compete with your petitioner, as transferee, in the proceeds of the mortgaged property, in the event there should not be enough to satisfy the claims above”, and that he, intervenor and third opponent, is entitled to have the two notes held by him paid out of the proceeds of the sale of the property in preference to plaintiff’s judgment.

Plaintiff moved to strike out the supplemental petition because it changed the issues presented by the original petition.

This motion was overruled.

Plaintiff filed an answer in which he denied that intervenor and third opponent acquired the two notes held by him in due course, and alleged that at the maturity of the two notes he, plaintiff, was the owner and holder thereof, and that thereafter the defendant, Quincy Iverson, paid the amount thereof, with the exception of $53.00, which he lacked to pay them, and for which amount he took the personal note of Iverson, payable October 1, 1919, and turned over to Iverson the two notes for $437.50' each as paid, and that these two notes, having been paid by Iverson, the debt represented thereby was satisfied and the vendor’s privilege and mortgage securing their payment extinguished to that extent.

He denies that intervenor and third opponent acquired the notes from him and avers that they were paid by Quincy Iverson and turned over to him by plaintiff as paid.

He alleges that the note for $53.00 was given by Quincy Iverson in part payment of the two notes turned over to him by plaintiff and that it represented part of the purchase price of the property, and that he is entitled to have his judgment therefor paid out of the proceeds of the sale of the property.

He denied that intervenor and third opponent has a privilege or mortgage on the property to secure the payment of the notes held by him and denies that he is entitled to have the same paid out of the proceeds of sale in preference to or concurrently with plaintiff’s judgment.

Plaintiff filed supplemental answer, alleging that after the maturity of the two notes held by intervenor and third opponent, Quincy Iverson paid him the amount that was owing thereon, with the exception of $53.00, for which he took the personal note of Iverson, and that he delivered the notes to Iverson as paid, and that thereby the debt they represented was paid and the vendor’s privilege and mortgage securing their payment extinguished to that extent.

Plaintiff also filed a plea of estoppel, in which he alleged that intervenor and third opponent, having alleged in his original petition that the notes held by him were of equal rank with those on which plaintiff’s judgment was based and were entitled to be satisfied out of the proceeds of the sale of the property concurrently with plaintiff’s judgment, he was estopped to assert that the privilege securing the payment of the notes held by him was superior in rank to plaintiff’s judgment or that he was entitled to be paid out of the proceeds of sale in preference to plaintiff.

There was judgment in favor of intervenor and third opponent, W. W. Gahagan, and against plaintiff, Thomas J. Martin, recognizing intervenor and third opponent’s privilege and mortgage on the property in controversy, and ordering that the notes held by him be paid out of the proceeds of sale of the property, in preference to plaintiff’s judgment. Prom this judgment the plaintiff has appealed.

OPINION

The defendant, Quincy Iverson, testified that he delivered the check of W. W. Gahagan to J. B. Martin & Co., and that he told Mr. Bryan Martin not to mark the notes “paid”, because he had to deliver them to Gahagan.

Mr. Bryan Martin does not remember this.

However, we do not regard the statement as of importance, inasmuch as Bryan Martin did deliver the notes to Quincy Iverson without having marked them paid, and did receive from’ Iverson the check of Gahagan for $494.00, and collected the check.

The first question presented for decision is, did intervenor and third opponent’s judicial allegation that he was entitled to prorate with plaintiff in the distribution of the proceeds of the sale of the property estop him to afterwards claim to be paid out of the proceeds by preference over plaintiff?

Intervenor and third opponent insists that this question cannot be considered for the reason that plaintiff’s exception presenting it was not verified.

The view that we take of the question renders it unnecessary for us to pass on this phase of the exception.

Intervenor and third opponent’s change of pleading did not cause plaintiff any damage or cause him to change his own position to his detriment.

In Irion vs. Knapp, 132 La. Ann. 60, 60 South. 719, the Supreme Court said:

“It is essential, to maintain the plea of estoppel; that the one pleading it should have been put in a worse position by the act of the one against whom it is pleaded.”.

It is clear that intervenor and third opponent’s first judicial allegation did not cause plaintiff to change his position. Hence the second judicial allegation is entitled to be considered and passed on.

Intervenor and third opponent’s mortgage and privilege retained in the act of sale passed before B. P. Allums, notary public, and recorded in Book Z of mortgages of Red River parish and filed in evidence, stood in the way of the funds being paid out before intervenor and third opponent’s mortgage notes were cancelled, and there was no reason why he should not have his rights fully pasesd on as prayed for in his petition of intervention and third 'opposition.

The second and most important question to be decided is whether or not the plaintiff, by turning the notes over to Quincy Iverson without having marked them “paid” and receiving therefor the check of W. W. Gahagan for $494.00, had the effect of transferring them or of paying them.

Section 119 of the Negotiable Instruments Law provides:

“A negotiable instrument is> discharged:

“5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right.”

The evidence shows that the notes held by W. W. Gahagan did not go into the hands of Quincy Iverson in his own right, for plaintiff received from ,W. W. Gahagan therefor a check for $494.00.

Hence, the notes passing into the hands of Quincy Iverson under the surrounding circumstances and not marked paid did not have the effect of discharging them.

Section 34 of the same a^t provides:,

“An endorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.”

The two notes held by W. W. Gahagan were endorsed in blank and were delivered to him without being marked paid, and his check for $494.00 for same was turned over to nad endorsed and collected by T. J. Martin or his agent, J. B. Martin & Go.

There is no allegation of error on the part of plaintiff or fraud on the part of W. W. Gahagan, and plaintiff cannot be heard to question his ownership of the notes, especially since plaintiff received ' and collected W. W. Gahagan’s check for $494.00 for the two notes.

City Savings Bank & Trust Co. vs. Goodman, 156 La. Ann. 106, 100 South. 66.

Quick vs. Littlejohn, 156 La. Ann. 369, 100 South. 531.

There appears on the last maturing of the two notes held by W. W. Gahagan indications that some memorandum has been endorsed on the back thereof and subsequently erased, and plaintiff insists that as to this note intervenor and third opponent holds subject to the memorandum, but the evidence makes it clear that T. J. Martin ordered it delivered to Quincy Iverson ,to be delivered by him to intervenor and third opponent.

T. J. Martin testified, page 4:

“Why, I got my son, Bryan, that is here, to look after it. I was leaving his house and I was looking for the negro up there —I don’t know whether that week or within a few days at least, and I told him if the negro> came, why he could receive the money and it would suit me all right; and the negro went and paid one note out and he failed to figure in the interest of fifty-three ($53.00) dollars and some cents on the second note, and my son didn’t let him have it; and the negro came in a few days to see me, and he plead so faithful for the notes, and I think he told me that Dr. Gahagan required him to bring that note in. I didn’t know that the doctor was in it until then — and I finally told him that if he would ¡give me a bank note and promise me faithfully that he would pay it next fall — first I told him that I could not and would not do it — and finally I told him, he kept on so persistent, that if he would give me that note and pay it the next fall, that I would give him an order for the other note, and he agreed to do it.”

T. J. Martin received from W. W. Gahagan his check for $494.00, understanding that Quincy Iverson was compelled to deliver the notes to Gahagan, and cannot now be heard to claim any credits on the note, 'after having received from W. W. Gahagan the full amount thereof in principal and interest, excepting $53.00; and the judgment of' the lower court only allowed W. W. Gahagan to be paid $475.00 by preference when, as a matter of fact, he gave his check for $494.00; so that W. W. Gahagan has received judgment for a smaller amount than he was entitled to, but he has not prayed for an amendment of the judgment.

Hence, the judgment of the lower court is correct and must be affirmed, and it is accordingly so ordered.

ON REHEARING

WEBB, J.

A rehearing was granted in this cause on motion of the plaintiff, T. J. Martin, who contended that the court erred in its original opinion in refusing to sustain a plea of estoppel filed , by him and in holding that the notos had been purchased by intervenor from Martin: conceding, however, that if the notes had .been purchased by intervenor he would be entitled to payment out of the proceeds of the mortgaged property by preference over plaintiff, Martin, which were the identical contentions made by the plaintiff on the original hearing and to which the original petition was confined.

Considering plaintiff’s contentions and matters, pleading and evidence relevant thereto, in the order named:

ESTOPPEL

In the original petition filed by intervenor he alleged that he was the holder and owner of two certain notes which were of a series of four drawn by Quincy Iverson, payable to the order of J. O. Loftin, and by the latter endorsed in blank, secured by vendor’s lien and privilege and special mortgage on the property purchased by Iverson from Lofton, and that plaintiff, T. J. Martin, the holder of the other two notes, had brought suit against Iverson and obtained judgment against- him with recognition of the privilege and mortgage, and had seized and was about to sell the mortgaged premises, and that intervenor, as the owner and holder of the notes, was entitled to share ratably with Martin in the proceeds of the salo, and prayed judgment accordingly.

Subsequently intervenor filed an amended petition, in» which he alleged that the notes held by him had been purchased by him from Martin, plaintiff, and that intervenor was entitled to be paid the amount of his notes, principal, interest and attorney’s fees, out of the proceeds of the sale of the mortgaged premises by preference over Martin, and amending his original prayer.

Martin, plaintiff, filed a motion to strike out the amended petition on the grounds that it came too late and changed the issues, which motion was overruled by the trial court, and in this court Martin, plaintiff, urges that the motion was, in effect, a plea of estoppel, and apparently intervenor concedes as much hut contends that the plea should not have been and cannot be considered, as plaintiff did not annex an affidavit of the truth of the facts alleged.

Considering the plea either as a “motion to strike out” or as a plea of estoppel, the basis of either are facts which appeared in the pleading previously filed, and we do not think it was necessary for plaintiff to have made an affidavit of the facts shown • by the pleadings.

Now, considering the plea on its merits.

The amendment was filed prior to exceptions or answer by plaintiff, and we are of the opinion that it could not be stricken from the record on the ground that it came too late nor'on the ground that it changed the issues.

The question of the right to amend a petition prior to the appearance of a defendant by way either of exception or answer appears to be left entirely at large, and since the law is silent upon ■ the subject we know of no reason why a plaintiff should not be allowed to amend in any respect that the judge finds the interest of justice may require, whether it be to supply a cause of action where none has been alleged in the original petition, or otherwise. The law intervenes only after issue is joined and declares that thenceforward an amendment may be made “with leave of the court”, provided it does not alter the substance of the demand by making it different from the one originally brought.

Commercial Nat. Bk. vs. Smith, 150 La. 234, 90 South. 581.

On the motion as an estoppel, it is urged that the intervenor, having alleged that the notes held by him should be paid out of the proceeds of the property concurrently with the notes held by Martin, he was judicially estopped from claiming to the contrary.

From the facts alleged in the original petition the conclusion followed that the notes held by intervenor should be paid out of the proceeds of the sale concurrently with the notes ■ held by Martin, and from the facts alleged in the amended petition, it is conceded intervenor had the right to claim payment out of the proceeds by preference.

Intervenor in the amended petition did not allege any fact in conflict with the facts alleged in the original petition, and as one cannot usually be judicially estopped by his pleadings only as to matters of fact (Farmers & Merchants Bank vs. Dorie, 144 La. 532, 80 South. 713), we do not think the intervenor was estopped from alleging additional facts which did not conflict with the facts first alleged and from which an additional legal conclusion would flow; and, as we do not think there was any conflict between the facts alleged and the relief asked in the original petition and in the amended petition, the plea of estoppel cannot be sustained.

MERITS

The intervenor claims that he purchased the notes from plaintiff and, hence, he seeks to take advantage of the quitable rule that where the holder of a claim secured by mortgage assigns a part of the claim he cannot come in competition with the assignee as to the proceeds of the sale of the mortgaged premises.

The facts shown by the record are as follows:

On December 24, 117, Quincy Iverson purchased from J. O. Loftin a tract of land for the sum and price of nine hundred and fifty dollars, giving in payment four notes, dated with the act of sale, each for the sum of two hundred and thirty-seven and 50-100 dollars, payable to the order of J. 0. Loftin, maturing on October 1, 1918, 1919, 1920, 1921, respectively, each bearing 8% per annum interest from date and secured by vendor’s lien and privilege and special mortgage on the property purchased.

The notes were transferred by J. O. Lo'f-tin to T. J. Martin, Loftin endorsing them in blank, and some time in the latter part of the year 1919 Iverson procured from Martin a statement showing the amount (principal and interest) of the two notes which fell due October 1, 1918 and 1919, and later Iverson presented to T. J. Martin, through his agent, J. B. Martin, a check for four hundred and ninety-four dollars, drawn by intervenor, Gahagan, to the order of J. B. Martin & Co. (which we assume was a'partnership composed of J. B. Martin and T. J. Martin) requesting that the two notes be given him and stating that intervenor, Gahagan, had requested that the notes should not be marked paid.

J. B. Martin found that the amount of the check was not equal to the amount of the principal an)d interest of the two notes maturing on October 1, 1918 and 1919, but he delivered to Iverson the first maturing note and credited the balance of the amount of the check on the note maturing October 1, 1919.

Iverson delivered the note which he had received from J. B. Martin to Gahagan, the intervenor, and subsequently Iverson called on -T. J. Martin and told him that Gahagan required of him, Iverson, to bring in the note maturing on October 1, 1919, and prevailed upon T. J. Martin to accept Iverson’s ' note .for fifty-thre dollars, an amount which, together with the .-amount that had been credited on the note, maturing October 1, 1919, was equal to the amount (principal and interest) of the maturing note, and gave Iverson a letter in which he instructed his son, ‘J. B. Martin, to mark the note maturing October 1, 1919, paid and to deliver it to Iverson.

Iverson then took the matter up with J. B. Martin, who erased the credit notation which had been placed on the note, and delivered the note to Iverson who, in a short time, delivered it to Gahagan, intervenor.

The parties do not claim there was any express agreement, and while intervenor states he intended to purchase the notes and that Iverson was acting -as his agent, which is confirmed by Iverson, plaintiff states that he did not intend to sell the notes.

While' it may be that the parties could have had other rights, in that there appears to have been a misunderstanding as to the nature of the transaction, they appear here, one contending that the notes were assigned, and the other that they were paid.

The notes were endorsed in blank and were assignable by delivery (Negotiable Instruments Act, Act 64 of 1904, Sec. 34); and had the notes been delivered without being marked paid to the intervenor in person, who was not in any manner bound on the notes, the presumption would have been that they were assigned and not paid.

However, they were not delivered to the intervenor in person, but to Iverson, the drawer, and conceding that Iverson, the drawer, was not precluded from acting as the agent of the intervenor, and that he did so act, we are of the opinion that the delivery to Iverson had the same effect as it would have had if the delivery had been made to intervenor in person, provided plaintiff knew Iverson was the agent of intervenor and that the notes were delivered to Iverson as such.

' While there are several circumstances which might be said to indicate that plaintiff knew Iverson was acting as the agent of intervenor, such as the check having been drawn by the intervenor in favor of the partnership of which plaintiff was a member, rather than in favor of Iverson, and the fact of Iverson having informed plaintiff that intervenor had requested that the note should not be marked paid; but, on the other hand, the fact of plaintiff having directed his son and agent to mark one of the notes “paid” indicates that in whatever capacity Iverson appeared, plaintiff was securing payment of the notes.

The parties concede, however, that there had not been any personal correspondence or negotiations between intervenor and Martin relative to the notes, and, viewing the action of the parties as a whole, the situation presented is that of Iverson, the drawer of the notes held by plaintiff, presenting to him a cheek drawn by intervenor and a note drawn by Iverson, which together were of an aggregate amount equal to the amount of the notes (principal and interest) held by plaintiff, and of plaintiff’s accepting same and delivering to Iverson the notes which had been held by plaintiff, which notes were subsequently delivered by Iverson to intervenor.

If the transaction should be considered solely with reference to the rights the intervenor could have against Iverson, conceding that Iverson was acting 'as the agent of intervenor, under the evidence as présented here, it could not be said that intervenor could equitably hold Iverson for the full face value of the notes, principal and interest, Iverson having already paid or given Martin his obligation, for a part of the obligation, and that intervenor could not contend that plaintiff’s privilege on-the mortgaged premises should be subordinated to a claim which could not be enforced against the mortgagor.

The relationship of debtor and creditor which may have arisen as between Iverson and intervenor by virtue of the transaction, may be beside the question as to whether plaintiff dealt with Iverson as the agent of intervenor, but it cannot be irrelevant when considering whether or not Iverson was in fact acting as the .agent of intervenor.

Conceding that Iverson could have acted as the agent of intervenor in purchasing Iverson’s notes from the holder and owner, and that intervenor and Iverson understood that Iverson was so acting, yet it is difficult to maintain a distinct view of Iverson, the drawer of the notes, as the agent of the intervenor for the purchase of the notes, while Iverson is acquiring possession of the notes by giving to the holder funds of the intervenor and other obligations of Iverson, and considering merely the action of the parties, We think it would be impossible to conclude that Iverson purchased the notes for his principal rather than that he paid them for himself.

The intervenor carried the burden of proof to establish his alleged purchase (Weil vs. Enterprise Ginning Co., 42 La. Ann. 492, 7 South. 622), and although plaintiff testifies he did not intend to sell the notes, and his instructions to his son and agent to mark the note maturing in 1919 “paid” indicates that he did not intend to sell, yet, in view of the fact that plaintiff acquiesced in the act of his agent in delivering the notes wthout marking them paid, and of the testimony of the intervenor that he intended to purchase the notes, and of Iverson that he was acting as the agent of intervenor, we would be disposed to give paramount importance to the fact of the notes having been delivered to Iverson without marking them paid, and to hold that plaintiff had sold or assigned the notes to intervenor; but when we consider that the action of the parties doe's not show a sale, in that Iverson paid a part of the amount of the notes, and plaintiff testifies that he did not intend to sell, we are of the opinion intervenor has failed to prove his alleged purchase, and that his demands should be rejected.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that intervenor’s demands be rejected at his cost.


author: CLAIBORNE, J.

text:
    No. 10,703
    Orleans
    MERCANTILE ADJUSTMENT CO., Appellant, v. POWERS, ET AL.
    (February 14, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1..., Louisiana Digest — Judgment—Par. 98, 103.
    It has been - repeatedly decided that an injunction cannot issue to stay the execution of a judgment on grounds which might have been pleaded in defense before judgment.
    2. Louisiana Digest — Judgment—Par. 98, 103.
    Plaintiff must show that he could not have availed himself of the matter in the former suit.
    Appeal from First City Court. Hon. "W. Alex Bahns, Judge.
    Action by Mercantile Adjustment Agency, etc., against Edward Powers, ét al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed. ■'
    Jos. A. Casey, of New Orleans, attorney for plaintiff, appellant.
    Richard A. Dowling, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

In this case one of the defendants,’ Frank L. Burg, sued to annul the judgment against him.

The plaintiff, the Mercantile Agency, alleged that, it was the holder of a note of $150.00 signed and endorsed by four defendants, viz.: Edward Powers, A. J. Doize, Frank L. Burg and Alfred Herzog, subject to a credit of fifteen dollars.

Burg was cited at his domicile in the hands of his wife, and all the three others were cited also. Judgment by default was rendered against the four defendants. Notice of judgment was served upon Burg at his domicile in the hands of his wife on January 29, 1926.

On February 26, 1926, a fieri facias was issued.

The sheriff, on May 15, 1926, garnisheed in the hands of the N. O. S. S. Association whatever it might owe to the defendant, Burg. The garnishee answered that it owed Burg $67.50.,

The defendant,. Burg, then agreed with plaintiff that the amount garnisheed should be divided in the proportion of one-half to himself and one-half to the plaintiff.

On July 17, 1926, Burg filed a petition, in which he alleged all the foregoing facts; he charged that the garnishment of 'his wages was null and void because “the note alleged to have been signed by him was a forgery and was never signed nor endorsed by him”, and he prayed that the judgment against him be annulled 'and for an injunction. A temporary writ was issued on a bond of $25.00.

On August 5, 1926, there was judgment in favor of Burg annulling the judgment against him and perpetuating the injunction against its execution. The plaintiff, the Mercantile Adjustment Agency, appealed, and we are asked to reverse the judgment.

Over the objection of the Mercantile Agency, Burg was allowed to introduce testimony in support of the allegation of his petition.

Burg testified that he had not signed the note, nor endorsed it. E. A. O’Sullivan, as an expert, testified that the name of Burg upon the face and back of the note were not in the handwriting of Burg.

Edwin Powers, brother-in-law of Burg, swore that Burg had signed the face and the back of the note in his presence. Leo Hezman, plaintiff, testified that Burg had admitted to him that he had signed and . endorsed the note.

But it is not necessary for us to criticize the testimony. The law is against Burg. It has been repeatedly decided that' “an injunction cannot issue to stay execution on grounds, which might have been pleaded in defense before judgment”. 1 H. D. 665-2-2; 1 L. D. 311-2-2; Ludeling vs. J. & C. Chaffe, 40 La. Ann. 645, 4 South. 586; Rareshide vs. Enterprise Ginning & Mfg. Co., 43 La. Ann. 820, 9 So. 642; 4 La. Dig., p. 349, S. 103.

No action lies to annul a judgment voluntarily executed. 1 H. D. 744, No. 6, 23 ■A. 27.

Plaintiff must show that he could not have availed himself of the matter in the former suit. If, by reasonable diligence, he could have shown such matter, or if he has been guilty of laches, he cannot be relieved. 1 H. D. 744, No. 17; Bethel vs. Hawkins, 22 La. Ann. 620; Succession of Corrigan, 42 La. Ann. 65, 7 South. 74; Warren vs. Copp, 48 La. Ann. 810, 19 South. 746; Landry vs. Bertrand, 48 La. 48, 19 South. 126; Millaudon vs. Gorden, 18 La. Ann. 280; Jouet vs. Mortimer, 29 La., Ann. 206; Moss vs. Drost, 130 La. 286, 57 South. 929; Surety Credit Co., Inc., vs. Bauer, 1 La. App. 285.

“Where one personally cited, with full knowledge of matters afterwards urged for an injunction, allows a default to 'be made final against him without interposing any plea or applying for further time to answer or for a continuance, or suggesting an inability to make at the time a proper de-. fense, he cannot enjoin and annul the judgment; it would be a premium for neglect. Art. 607 C. P. does not apply to such a case.” McRae vs. Purvis, Gladden & Co., 12 La. Ann. 85; Succession of Lebrew, 31 La. Ann. 212; Perry vs. Rue, 31 La. Ann. 287; Hood vs. Frellsen, 31 La. Ann. 582; Baham vs. Stewart Bros. & Co., 109 La. 999, 34 South. 54; Lazarus vs. McGuirk, 42 La. Ann. 201, 7 South. 559; Cockerham vs. Perot, 48 La. Ann. 213, 19 South. 122; Harvin vs. Maurepas Land & Lumber Co., 112 La. 1030, 36 South. 843.

It is therefore ordered that the judgment herein rendered on August 5, 1926; be •reversed and set aside, and that the demand of Frank L. Burg be rejected at his cost ■ in both courts.


author: WESTERFIELD, J.

text:
    No. 9642
    Orleans
    BORIE, Appellant, v. LESTER & CO.
    (February 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 594, 597.
    Where the determination of a case depends upon the comparison and construction of certain contracts introduced in evidence below and subsequently lost and not in the transcript, the Appellate Court will indulge the presumption that the judgment appealed from is correct.
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by Fabian W. Borie against E. E. Lester & Co., et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment amended and affirmed.
    Wm. F. Conkerton, of New Orleans, attorney for plaintiff, appellant.
    Louis C. Guidry, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

The determination 'of the issues presented in this case involve the construction and comparison of two sets of building plans and specifications, which were introduced below and 'which have been lost. Counsel admit their inability to find the missing evidence and assert that further search would be futile. We are urged to decide the case without the lost documents.

In complying with this request we can only affirm the judgment appealed from. Judgments are presumed to be correct. Moreover, upon questions of fact, the presumption is a presumption juris, not to be lightly overthrown by an appellate court.

Defendants’ counsel calls our attention to the fact that the judgment as rendered against their clients is in solido, though the record establishes that the claim sued on resulted from an obligation of an ordinary partnership involving only joint responsibility. We are asked to correct this error.

For the reasons assigned the judgment appealed from, insofar as it casts the defendants, E. E. Lester and Philip Schick, in the sum of $700.00, be so amended as to impose a joint and not a solidary obligation.


text:
    No. 10,343
    Orleans
    RUSSELL v. CELENTANO, Appellant
    (February 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625, ' 630.
    Where the judgment appealed from, though based entirely upon an issue of fact, appears palpably erroneous, it will be reversed.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Jerry Russell, et al., against Toney Celentano.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    H. Kenner, of New Orleans, attorney for plaintiff, appellee.
    Jos. H. Brewer, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiffs, the father and mother of a negro child, five years old, bring this suit against defendant, the owner of a tenement occupied by plaintiffs, on behalf of their said child for damages alleged to have been sustained by reason of a fall from a balcony caused by rotten balustrades.

Defendant denies the fall and claims his balcony and balustrades to have been in good order.

The evidence shows that the child fell in an alleyway over which the balcony projected, but there is no proof whatever that the child fell from the balcony. Whether the fall was caused by stumbling while running in the alley or by reason of defective or missing balustrades on the gallery above cannot be determined from the evidence. The character of the injuries sustained by the child does not support plaintiff’s theory of the accident. A few teeth were knocked out and there was some bleeding, but the child was quite conscious, in fact, was crying when picked up immediately after the fall, and not unconscious, as plaintiffs allege in their petition. The injuries were quite consistent with a fall while running along the ground and are hardly severe enough to have, been caused by a fall from a height of fifteen feet, the distance between the gallery and the ground.

We have reached this conclusion, notwithstanding the finding of our brother below in plaintiffs’ favor on an issue of fact, because we believe he fell into a palpable error.

The judgment appealed from is reversed, and it is now ordered that there be judgment in defendant’s favor, dismissing plaintiffs’ suit as in case of non-suit.


author: JONES, J.

text:
    No. 9591
    Orleans
    SICARD v. PFISTER, ET AL., Appellant
    (February 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    When only matters of fact are involved, judgment - of the lower court, unless clearly erroneous, will be affirmed.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Chas. J. Sicard against Charles Pfister, et ah, in solido.
    There was judgment for plaintiff and defendants appealed.
    • Judgment affirmed.
    Jos. -H. Brewer, of New Orleans, attorney for plaintiff, appellee.
    A. D. Danziger, of New Orleans, attorney for defendants, appellants.
   JONES, J.

This is a suit by a subcontractor against the main contractor and lessors for two hundred and twelve and 10-100 ($212.10) dollars, unpaid price of work on the Prytania theatre.

Plaintiff alleges that the work was done under a verbal contract with the main contractor, and' that a detailed statement was-promptly recorded in the mortgage office, but amount was never paid.

The main contractor, although served with citation, made no appearance, but the lessors answered that they were tenants of the naked ground under a lease by which the improvements made by them were to revert to the owner at expiration of their tenancy; that they had paid the contractor the entire amount due by them for work in the Prytania theatre, and he had certainly paid plaintiff a portion of amount due for his work on the theatre, but that plaintiff, who was doing the work on open account for the contractor, had illegally imputed their payments.

They prayed that plaintiff’s suit be dismissed at his cost, or, in the alternative, that he recover judgment only for such amount as should be found' due him after proper accounting.

The evidence showed that the lessors had leased the ground, put up a building, and then employed Pfister for three thousand and 00-100 ($3000.00) dollars to remodel the structure under a lease by which the improvements reverted to the owner at the expiration of the contract, but there is nothing in the record to show the length of the time.

There is also much evidence as to the imputation of payments and pages from plaintiff’s .ledger are filed in evidence, but Charles Pfister, the main contractor, was not summoned as a witness, although plaintiff testified he was available to substantiate or refute his statement to the effect that he had never been paid one cent on the Prytania theatre job.

The judge of the lower court gave judgment for the amount claimed against the lessor with recognition of plaintiff’s lien and privilege on the theatre only.

Defendant urges in this court that the privilege should have been recognized, if at all, only on the lease, and' cites as authority Art. 3249 of the Civil Code, which reads in part as follows:

“* * * and of such building improvement or other work is caused to be erected by a lessee of the lot of ground, in that case the privilege shall exist only against the lease and shall not affect the owners.”

Here the repairs were done to a building originally constructed and later remodeled by lessors, and we think the lower judge was right in granting a privilege on the building under the circumstances.

In Hearne vs. Victoria Lumber Company, 131 La. 646, 60 South. 22, where the man who contracted for the materials held a bond for deed, the Supreme Court upheld the material furnisher when he sought to enforce his lien against' the building. In the course of the opinion the court uses the following language:

“While Munday was not the owner, he was in possession with the consent of the owner to a sufficient extent to enable him to erect the building on which defendant claims a privilege. He was to that extent a tenant at will. * * * We think that there was a privilege on the property.”

As that decision was based on Art. 3249 C. C., the controlling law in this ease, we think the analogy between these two cases sufficiently close to make that conclusion binding here.

We fully agree with the judge of the lower court that the plaintiff has proved his claim, but we do not think that damages should be allowed for frivolous appeal.

For the above reasons the judgment is affirmed.


text:
    No. 9661
    Orleans
    LEAMAN, Appellant, v. MRS. VALLOFT, WIFE OF SIMMONS
    (February 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    I. Louisiana Digest — Appeal—Par. 625.
    Where only matters of fact are involved the judgment of the lower court will be affirmed, unless clearly erroneous.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    Action by P. J. Leaman against Mrs. Lillian Valloft, wife of Barrett P. Simmons, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Walter Hamlin, of New Orleans, attorney for plaintiff, appellee.
    ■ A. D. Danziger, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for a real estate commission of three hundred and fifty-one dollars ($351.00) against the former owners of the property.

Plaintiff alleges that defendants made an exclusive contract with him on January II, 1923, for the sale of the property, 4164 Canal street, to. remain in effect, unless cancelled by sixty days written notice; that Miss M. Babin saw one of his advertisements on May 2, 1923, inspected the premises, and told defendants that the price was too high; that defendants, on May 12, informed him that Miss Babin was favorably impressed with the property, and, on May 15, that she had tried to deal directly with them but had been referred to plaintiff; that he agreed on June 6, 1923, to cancel the contract sixty days from that daté and so wrote on the back of the contract; that he learned later that Miss Babin had made an offer of - eleven thousand dollars ($11,000.00) on May 29 for the property through another agent, and that she had finally bought, on July 7, for eleven thousand and seven hundred dollars ($11,700.00) through the same-agent.

He prays for judgment for three hundred and fifty one dollars ($351.00) on the ground that the property was sold during his exclusive agency, or, in the alternative, if it be held that his contract had been, cancelled, then on the ground that he was the procuring cause of the sale.

Defendants answered, admitting the contract, and that Miss Babin inspected the property and was referred by them to plaintiff prior to June 5. They averred that defendant had cancelled the contract on June 5, 1923, by writing in his office in the presence of Mrs. Simmons on the back thereof: “Cancelled 6-5-23. P. J. L.”, and later plaintiff had fraudulently inserted, without defendants’ knowledge, the words “to be” and “six days' from date of”.

They admit that offer was made through Cody for eleven thousand dollars ($11,000.00) on May 29, but was not accepted because Leaman then had exclusive contract; that they later sold the property to Miss Babin for eleven thousand and seven hundred dollars ($11,700.00).

It would serve no useful purpose to analyze here the voluminous evidence about the. cancellation of the contract. Although the statements are conflicting, we cannot say that the judge of the lower court, who saw and heard the witnesses, was wrong ’in finding that plaintiff has failed to make his case certain on this point.

Plaintiff testified that he advertised the property four times in the Times-Picayune, the last publication having been made on March 25, and he filed in evidence a typewritten copy of a letter from his office to Mrs. B. P. Simmons, of date May 1, 1923, notifying her he was dealing with Miss Babin as a prospective purchaser. Mrs. Simmons denies that she received' this letter and Miss Babin seems uncertain" whether her attention was first called to ‘ the property by the advertisement of plaintiff. At any rate, defendants admit that she did inspect the property and they referred her to plaintiff as their agent. Defendant, Mrs. Simmons, swears that plaintiff told her on June 5 that he could not sell the property for eleven thousand-dollars ($11,000.00) and was willing to cease trying. The evidence also shows that Miss Babin made an offer through Cody on May 29 for eleven thousand dollars ($11,000.00), which was declined by defendants, and that they accepted the offer of Miss Babin through Cody on June 11 for eleven thousand and seven hundred 'dollars ($11,700.00).

Under these facts was plaintiff the pro-' buring cause? Even if we admit that Miss Babin was first attracted to the property by his advertisement on March 25, which is not clearly proved, we think that the fact that she then declined to pay the price of eleven thousand dollars ($11,000.00) on the ground that the price was too high, and that a month later she made an offer for that amount through another agent, which was declined, tends to show that plaintiff had not been successful in impressing her and that he had good grounds for thinking that he could not sell the property for that amount and, therefore, for cancelling the contract.

Apparently he had ceased since March 25 to advertise the property and had succeeded in interesting only one person, who had declined to pay the price through him. Had the property been sold to Miss Babin for eleven thousand dollars ($11,00.00), plaintiff’s claim would have been far stronger. The fact that she paid eleven thousand and seven hundred dollars ($11,700.00) a short time after plaintiff withdrew from the transaction tends strongly to show that some new cause must have intervened.

The Supreme Court held in the case of Lestrade vs. Gabriel Vanzini, 6 La. Ann. 399, that the broker cannot claim his commission where the property is sold at a higher price than that stipulated in the contract with the broker.

In the case of Lewis vs. Manson, 132 La. 817, 61 South. 835, the Supreme Court held as follows:

“If a broker attempts unsuccessfully to effect a sale of land and his proposed purchaser abandons the idea of buying, but he is afterwards induced to do so by the principal or by another person, without being in any way influenced by the broker, the latter is not entitled to any commission.”

See also Taylor vs. Jay, 119 La. 163, 43 South. 993.

Junk vs. Golden Ranch Co., 122 La. 794, 48 South. 267.

For above reasons the judgment is affirmed.