text:
    No. 9091
    Orleans
    AUTOMOBILE FINANCE AND SECURITIES COMPANY v. GLOBE INDEMNITY COMPANY
    (November 14, 1925, Opinion and Decree)
    (January 4, 1926, Rehearing Refused)
    (March 2, 1926, Writs of Certiorari and Review Granted by the Supreme Court)
    (May 18, 1926, Decree Supreme Court. See La. Reports)

      (Syllabus by the Court.)

    1. Louisiana Digest — Indemnity—Par. 3.
    An indemnity company which insures a chattel mortgage creditor against the latter’s direct pecuniary, loss' resulting from theft, embezzlement or conversion of a mortgaged' automobile, % either the direct act of the mortgage debtor or through his connivance with others, is liable for all, such, loss sustained by the insured, where the debtor, as purchaser of the automobile, sells it through the intervention of an agent who fails to account for the proceeds.
    2. Louisiana Digest — Indemnity—Par. 6.
    Courts will not favor highly technical defenses to suits under such a contract.
    Appeal from Civii District Court, Parish of Orleans, Division “F”, Hon. Percy Saint, Judge.
    Action by Automobile Finance and Securities Company against Gloge Indemnity Company. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Spencer, Fenner, Gidiere and Marks, of New Orleans, attorneys for plaintiff, appellee.
    Monroe and Lemann, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

This is an action brought by plaintiff, an automobile finance company, against defendant, upon a policy of insurance or indemnity bond issued by defendant in plaintiff’s favor. The material provisions of the contract in relation to the facts involved in this case are as follows: lows:

“Whereas, certain persons, firms and corporations (hereinafter called the ‘Purchaser’) hold in their custody in the United States of America or its possessions, or in the Dominion of Canada, certain property consisting, of motor vehiclés, which .they have purchased or acquired from dealers, the price of which is payable in installments, and which installments are represented by notes or other negotiable instruments of the purchasers, secured by chattel mortgage, conditional sale, deed of trust or lease agreement, and such notes are acquired or owned by Automobile Finance and Securities Company, in the course of its business:
“Now, therefore, in consideration of the payment of an agreed premium, Globe Indemnity Company (hereinafter called the ‘Surety’) does hereby agree to indemnify said Automobile Finance and Securities Company (hereinafter called the ‘Obligee’) against such direct pecuniary loss as the Obligee may sustain by any act of larceny, embezzlement, or conversion of the purchaser, whereby the obligee is deprived of the security of any motor vehicle, listed in any schedules made a part hereof, as hereinafter provided, either directly or through the connivance' with others on the part of any purchaser named in the said schedules.
“The foregoing agreement is subject to the following conditions:
“No. 4. The liability of the surety on account of any purchaser is limited to the amount of the purchase price unpaid at the time of any larceny, embezzlement or conversion aforesaid, and such liability shall not exceed the sum set opposite the name of the purchaser in any schedule.”

The facts of this case are undisputed, and may be thus stated:

On June 30, 1920, Duggan, Inc., (a corporation engaged in the business of buying and selling automobiles in the City of New Orleans) sold to one Clarence E. Patton a used Case automobile for the price of $1,526.62, the purchaser paying $381.66 cash, and for the balance of the price giving twelve notes, each for, the sum , of $95.41, payable monthly,, and :secured. by a chattel mortgage and vendor’s .lien upon the automobile.

The name of Duggan, Inc-, was changed to that of Hamilton Motor Corporation, Peter Hamilton being the Vice-President and managing official. For brevity, any acts of this corporation or of its manager, will be referred to as those of “Hamilton”.

In order to finance his credit sales, Hamilton had a regular arrangement with the plaintiff, whereby the latter purchased the chattel mortgage notes representing the credit portion of the purchase price of these sales, and the Patton notes were acquired by the plaifftiff in this way. To avoid the indorsement of all of these notes by Hamilton, and at the same time to obtain his guarantee of their payment, the plaintiff had an agreement with Hamilton whereby he bound himself to pay the amount due plaintiff by any chattel mortgage debtor upon plaintiff’s foreclosing such chattel mortgage, buying in the mortgaged automobile, and tendering it to Hamilton.

On October 15, 1919, in order to protect itself from loss resulting from the improper disposal of mortgaged automobiles by mortgage debtors, plaintiff procured the issuance to it by defendant of a blanket policy, the material provisions of which have been noted above.

It is admitted that Patton, as the ' purchaser and possessor of the mortgaged automobile in question, was duly reported as a risk under this policy, and that the proper premium covering such risk was paid.

Patton was then in the employ of Hamilton, but soon thereafter left his employ, became dissatisfied with his purchase, and manifested an intention not to pay his chattel mortgage notes. Hamilton thereupon secured possession of Patton’s automobile from Patton, and kept it in the establishment occupied by Hamilton. This was done with plaintiff’s knowledge. The first two of the twelve notes were paid some time after their maturity, but the other ten notes were not paid, and are those involved in this suit. The testimony leaves some, doubt as to whether the first note was paid by Patton before he delivered the automobile into Hamilton’s possession, or whether it was paid by Hamilton after he had repossessed the automobile, but the second note was admittedly paid by’ Hamilton after the automobile was left with him.

Thereafter, Hamilton sold this automobile, as an unincumbered car, through the agency of another corporation, known as the Lapps Motor Company. This sale was made without the knowledge or consent of the plaintiff. Plaintiff employed detectives in an unsuccessful effort to locate the car. The evidence indicates that after being resold two or three times the car finally left the State and appellant’s chattel mortgage lien was accordingly extinguished.

There is some controversy as to -whether the Lapps Motor Company accounted to Hamilton for the proceeds of the sale. It is admitted that Hamilton did not account to the plaintiff for these proceeds, but retained whatever he received from the Lapps Motor Company. on this sale.

Upon Hamilton’s failure to pay any of the outstanding notes, except those already referred to, plaintiff was led to investigate the Whereabouts of the various automobiles upon which it had chattel mortgages, and which were supposed to be in the possession of. Hamilton. This investigation led to the discovery of the disposal of the car, the making of a claim under the policy in question and the institution of this suit. Shortly after this discovery Hamilton went into bankruptcy.

Plaintiff, in its petition, alleges in substance the facts above noted, sets up the bond,, also the act of mortgage and the ten unpaid notes secured by chattel mortgage upon the automobile described in the petition. It further alleges that it has been deprived of its security because of an act of conversion on the part of Patton, the “purchaser”, so styled in the bond, and accordingly prays that it be indemnified by the defendant company as surety against the direct pecuniary loss that plaintiff has sustained, to the full amount of the notes, to-wit: $954.14, with such interest and attorney’s' fees as are stipulated in said notes, and for an additional sum of $50.00, with legal interest thereon from judicial demand. The latter amount is for costs incurred by plaintiff for detective services rendered in search of the lost automobile.

Exceptions of no cause or right of action having been overruled, defendant answered by admitting the issuance of the indemnity bond in favor of plaintiff, and also the execution of the chattel mortgage act and notes in relation to the automobile described in the petition. It was also admitted that due notices of loss and of claim for loss were received from plaintiff. All other allegations of the petition were denied.

There was judgment in favor of plaintiff, and defendant has • appealed.

Defendant’s principal contention, as we gather it from counsel’s brief and argument, is, that under the unusual situation presented by the facts of this case, the improper sale of the automobile causing loss of plaintiff’s chattel mortgage security was not the act of Patton, the mortgage debtor, but was the independent act of Hamilton, a third person, whose honesty the defendant did not insure. We are urged to so interpret the indemnity bond now before us, and to refrain from adopting the general rule of law which calls for a liberal construction of such contracts in favor of the insured. In support of this contention, citation is made from 32 C. J., 1158, as follows:

“The rule that a policy or contract of insurance is to be construed strictly against the company and liberally in favor of insured applies only to the language of the policy or contract and not to the facts of the case. It does not apply where the language of the contract is unequivocal and unambiguous and sufficiently plain and clear to express the intent of the parties, or where the language has acquired, by judicial construction, a clear and definite meaning, or where an ambiguity in particular provisions disappears when the contract is considered as a whole, or where an ambiguity has been explained and removed by parole evidence, or where there is no fair room for construction. The court will not pervert or do violence to the language used, or expand it beyond its plain and ordinary meaning, or add something to the contract which the parties have not put there, in order to create an ambiguity and thereby render the rule applicable.”

Also, Joyce on Insurance, Sec. 219, as follows:

“If the terms of the contract are express, the court cannot extend or enlarge the contract by implication so as to embrace an object distinct from that originally contemplated. In insurance contracts the insurer undertakes to guarantee the insured against loss or damage upon the exact terms and conditions specified in the agreement, and upon no other, and, therefore, courts cannot change the contract nor make a new one for the parties. It is their duty to enforce and carry out the one already made, and nothing ought to be imported into the constraet by constructon contrary to its express terms-”

It is argued that particular application of the above .noted principle has been observed in innumerable eases wherein recovery is denied under policies of fidelity insurance, and where the contemplated dishonesty of the insured’s employee has arisen after the duties and responsibilities of the employee have materially changed from those existing at the date of the policy. However sound such a principle may be, it can have no application to the facts presented in the instant, case.

Neither Patton, the purchaser, nor even Hamilton or the Lapps Motor Company, through connivance with whom Patton might be charged with acts of conversion, is shown to have been at any time employed by the insured, or to have been entrusted with any duties or responsibilities which were materially changed after’ defendant assumed the risk here involved.

The principle matter for determination is whether Patton, the party admittedly designated as the purchaser named in the bond, either directly or through connivance with Hamilton or others acting on the part of Patton, committed an act of conversion whereby plaintiff was deprived of the security listed and described in the bond.

There is evidence in the record showing that the act of sale and chattel mortgage were executed at the office of the Automobile Finance ■ and Securities Co., an<l that Patton then and'there signed and executed all of the .chattel, mortgage notes, and made. them- payable directly to the order of ' the • plaintiff company. Though the act recites. Hamilton to1 he the vendor of' the car, the unpaid balance of the pur-, chase price as represented by the notes was made payable to plaintiff with Hamilton’s knowledge and consent. It follows, therefore, that Patton is hound to have known, at the moment of his ‘purchase and also at the time he permitted Hamilton to repossess himself of the car, that he, Hamilton, had no. ownership or interest whatever in the car. Knowledge of such facts was likewise in Hamilton. To deliver or surrender the car to Hamilton was therefore a reckless disregard of plaintiff’s rights to the security granted under the mortgage, and was plainly an act of conversion, such as was contemplated under the bond. In our opinion, there is scant necessity for even liberal interpretation of the contract in question, in order that we may be justified in reaching such a conclusion.

The meaning of conversion is fully and clearly defined in Words and Phrases, page 1566, as follows:

“A conversion is defined to be any act of the defendant inconsistent with the plaintiff’s right of possession or subversive of his right of property. Omaha & Grant Smelting & Refining Co. vs. Tabor, 21 Pac. 925, 930.
“Conversion is the act of assuming the general right of dominion and control of a thing belonging to another, whch is usually exercised by the owner thereof. It ‘is defined to be an unauthorized act which deprives another of his property permanently or for - an indefinite time’. A wrongful intent is not an essential element of a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act by another assuming dominion or control over, it. Pease vs. Smith, 61 N. Y. 477, 481; Industrial & General Trust vs. Tod, 63 N. E. 285, 288, 170 N. Y. 233 (citing Boyce vs. Brockway, 31 N. Y. 490); Mohr vs. Langan, 63 S. W. 409, 416, 162 Mo. 474, 85 Am. St. Rep. 503.”

In the case of Bank of Commerce of Ralston vs. Gashill, 145 Pac. 1131, it was said:

“An absolute sale, to the exclusion of the rights of a chattel mortgagee, by a mortgagor, who, under the terms of the mortgage, remains in possession of the chattels, works a conversion thereof, for which the mortgagee may maintain an action for conversion without previous demand.”

See also Nunn vs. Padgitt Bros., 161 S. W. (Texas) 921.

Under the facts already noted, it is of no consequence that plaintiff was apprised of Hamilton’s repossession, or even that plaintiff knew that the car, before its final disappearance, was stored in the garage of the Lapps Motor Company. George S. Clarke, Manager and Vice-President of the plaintiff company, when asked at the trial of this case whether he or any other officer or person connected with the company had authorized or knew of the sale of the car by' Hamilton or others, or had released Patton or authorized his release from his obligation under the notes or chattel mortgage, answers, “Positively not”. This witness’ testimony, while he was under cross-examination, is given without evasion or qualifications of any sort, and fairly indicates that plaintiff, in the light of previous relations had with Hamilton, could not be justly charged with reasons for believing that Hamilton’s possession of the Patton car was cause for suspicion justifying investigation as to its whereabouts. • ■ Clarke testifies, in part, as follows:

“Q. Did you expect the Hamilton Motor Corporation to keep the Patton car in its establishment forever if Patton continued-to fail to meet his notes?
“A. No.
“Q. Is it not a fact that you realized that the Hamilton Motor Corporation, being secondarily liable on the Patton notes — if Patton continued to fail to pay these notes — would make some effort to reduce the amount of its liability by endeavoring to find some purchaser for this Patton car?
“A. I did, naturally, and expected them to dispose of the car after they had made good to us under their contract. That was none of my business what they did with it. All I was interested in was collecting the notes which the Automobile Finance & Securities Company held.
“Q. As a matter of fact, your company would have had no objection to the Hamilton Motor Corporation finding a purchaser for the Patton car, if the Hamilton Motor Corporation, before actually making the sale, had submitted same for approval to the Automobile Finance & Securities Company and had satisfied the mortgage of the Automobile Finance & Securities Com.pany on the car, either out of the proceeds of the sale or out of its own funds, before the car was actually delivered to the new purchaser. That is a fact, is it not?
“A. We would not have cared what happened to the car if we got our money first or obtained a satisfactory promise of payment.
“Q. Did it not actu'ally happen, in other cases where the Hamilton Motor Corporation obtained possession of cars from purchasers delinquent as Patton was, that the Hamilton Motor Corporation subsequently negotiated the sale of these cars with the approval of the Automobile Finance & Securities Company and satisfied the mortgages on the cars due the Automobile Finance & Securities Company out of the proceeds of the sales or otherwise, at or before the time when the sales were consummated?
■ “A. Yes.
“Q. And is it not- also a fact that-your company would have had no objection to the Ha-milton Motor Corporation negotiating a sale of the Patton car, if that’ corporation, before consummating the sale, had informed your corporation of the facts and at the time of the consummation of the sale had procured the cancellation of the chattel mortgage on the Patton car by satisfying same out of the proceeds of the sale or otherwise?
“A. Yes.
“Q. Is it not a fact that that was what you expected that the Plamilton Motor Corporation would do eventually after • you became aware of the fact it had obtained possession of the car?
“A. The only definite expectation I had was- that the Hamilton Motor Corporation would make good on their contract and pay their notes.
“Q. Did you not also expect the way in which the Hamilton Motor Corporation would make good on its contract in the case of the -Patton car was the manner which I have described in my previous question?
“A. Not necessarily. They might have made good by paying up the notes. They did pay two of them, I believe, -in order to partially satisfy us and prevent our formally seizing the car or tendering it to them under our contract and demanding full amount of the loan with costs, etc.”

Patton’s surrender of the car into Hamilton’s possession with instructions to sell it was the act which constituted Hamilton the agent of Patton, the mortgage creditor, and was the direct and initial act of conversion which caused the sale, although made by Hamilton, to be imputed to Patton, his principal.

What Hamilton has to say about the transaction here involved, is evidence to which this court can give little, if any, consideration. His affidavit, taken prior to the filing of this suit, is to the effect that the car was turned over to him by-Patton, “to be sold by affiant for account of said Patton”. And “that affiant acted in this transaction as agent of said Clarence E. Patton”. Confronted with this sworn statement when examined under depositions taken on behalf of plaintiff, Hamilton was asked, “Are the facts set forth in said affidavit true and correct?” To this question, he answered:

“The facts contained in said affidavit are true and correct according to the construction put on the case by the attorneys for the Automobile Finance & Securities Company. I do not know whether I acted as agent for said Patton, or for the Automobile Finance & Securities Company in this transaction.”
‘¡There is a question in my mind as to whether the car was turned over to me for the account of Patton or the account of the Automobile Finance & Securities Company.”

While again examined, under earlieV depositions, he swears positively that “at request of the Automobile Finance & Securities Company, the car was repossessed for account of the Automobile Finance & Securities Company”. This statement is obviously untrue, if any reliance is to be placed in the testimony of Clarke, who denies that any authority was ever given Hamilton to sell the car for account of the company. In the light of Hamilton’s testimony just noted, the court has little difficulty in determining which of these statements are true.

There is nothing in the record from which the slightest inference can be drawn that plaintiff ever authorized the sale of its mortgage security by Hamilton or others.

Concluding, as we have already done, that the clearest relationship of principal and agent has been established between Patton and Hamilton, it follows that the sale by the latter was Patton’s own direct act of conversion, and resulted in the denial to plaintiff of its chattel mortgage rights over the security thus sold.

Our view of the case being that liability on the bond has arisen from the direct act of conversion, attributed to Patton, the purchaser of the car, by his abandonment thereof, as well as by his authority improperly given for its sale, the question of his connivance with Hamilton is pretermitted.

Counsel for appellee has argued before this court that the extent of liability, if any there be, is limited to the value of the security, that is to say, the value of the automobile at the time it was sold. We find no merit in this contention. The language of the bond is that the defendant, as “surety”, shall pay “such direct pecuniary loss as the obligee may sustain” by being deprived of the security of any motor vehicle listed in any schedule made part of the bond. A mere reading of the preamble which captions the bond and which relates to the chattel mortgage notes, and hence, to every stipulation contained in the notes, and the further consideration of paragraph 4 of the bond, all of which has been heretofore noted, renders discussions unnecessary as to the correctness of the quantum allowed.

The judgment of the trial court is, in every respect, correct, and is therefore affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9224
    Orleans
    RICHMOND v. AFRICAN METHODIST EPISCOPAL ZION CHURCH OF NEW ORLEANS
    (April 12, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Obligations — Par. 148, 173.
    A specific performance of a contract will not be ordered when it is not in the power of the defendant to perform it.
    2. Louisiana Digest — Judgment—Par. 1, 5.
    Courts will not render a judgment which it is not in their power to enforce.
    3. Louisiana Digest — Judgment—Par. 10, 11; Pleading — Par. 114.
    Plaintiff cannot be recognized to be the owner of lots when • the registered owner is not made a defendant.
    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    Action by Jacob Richmond against African Methodist Episcopal Zion Church of New Orleans. There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    R. A. Tichenor, McGee and Dobbins, of New Orleans, attorneys for plaintiff, appellant.
    Michel Provosty and F. Rivers Richardson, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for specific performance of a contract of sale.

Plaintiff alleged that on January 20, 1922, he agreed to purchase from the defendant, two lots of ground on Willow Street for the price of $1450, on account of which he deposited $145, “the title to be subject to examination and approval by Mr. Tichenor, attorney * * * The parties hereto waive the benefits conferred by Article 2462 R. C. C., and agree, that neither shall have the right to recede from this contract by forfeiture of the deposit by the one, or return of double by the other”;

That the title to said property was rejected by the said Tichenor; that on April 19, 1922, plaintiff demanded of the defendant a return of his deposit, which defendant refused to return, and expressed its readiness to execute the sale, in default of which it would forfeit the amount deposited by the plaintiff; that thereupon the plaintiff removed the objection to the title and notified the defendant that he would accept the title; but the defendant then changed its mind and declined to make the sale; that on September 27, 1922, the plaintiff then notified the defendant that on October 2, 1922, at the office or Mr. Tichenor he would be prepared to take title to the two lots; that, at the appointed time, he appeared before the notary but that the defendant failed to come; that at the time when the defendant insisted upon passing the act of- sale and refused to return the deposit he had agreed on July 28, 1922, to sell the two lots to Miss Bork for $1500, to whom he might be liable in damages for failure to make the sale; that he is entittled to an action for specific performance.

He therefore prayed for judgment against the defendant “ordering the specific performance of the contract of sale above referred to, and decreeing petitioner to be the owner of the property herein described upon the payment of the purchase price,- etc.”

Defendant admitted the agreement to purchase, but that Tichenor rejected the title; that thereupon defendant sold the property to the Realty Liberty Company on October 27, 1922, duly registered “and that accordingly your respondent has not now the power to specifically perform the contract in question”; further answering defendant alleged that the plaintiff is indebted unto it in the sum of $100 for the rents of said lots which the defendant collected and owes the defendant.

There was judgment in favor of the defendant on the main demand dismissing plaintiff’s claim, and in favor of defendant on its reconventional against the plaintiff for $100.

The plaintiff has appealed.

The facts of the case are correctly narrated by plaintiff in his petition up to the time when Tichenor rejected the title.

We have seen that the agreement of sale was made on January 20, 1922. On April 19, 1922, R. A. Tichenor wrote to the defendant :

“Mr. Kirn has refused to release the African Methodist Episcopal Church of New Orleans from that part of the obligation in deed which stipulated that the property should be ‘used, kept, maintained, and disposed of as a place of Divine Worship, etc.’ My client therefore cannot accept the title and wants the return of the ten per cent deposit which he made with Mr. John M. Hubert, Real Estate Agent.”

We have already referred to the letter of the defendant to the plaintiff dated May 25, 1922, refusing to return the deposit and expressing readiness to carry out the agreement of sale.

Walter C. Davis, chairman of the trustee board of the defendant, testified that the defendant had sold the two lots, and in support of his testimony offered in evidence a copy of an act before G. Fernandez, Jr., notary, dated ' October 27, 1922, Reg. October 27, 1922, C. O. Bk. 359, p. 160, by which the defendant sold the two lots mentioned in plaintiff’s petition to the Liberty Realty and Securities Company.

To this act is annexed a clear conveyance certificate also dated October 27, 1922, certifying that the defendant had not alienated said two lots.

Notwithstanding this certificate it appears from a certificate endorsed upon the back of the agreement of sale between the plaintiff and the defendant that this agreement was registered in the conveyance of-1 fice on October 4, 1922, but in the name I of the “Petty Chapel A. M. E. Zion Church”. Whether that was a sufficient I and proper registry ■ as to name is not | before us.

The prayer for specific performance can-j not be granted, for it is no longer in the I power of the defendant to sell the two lots] to the plaintiff for the very obvious rea-J son that it has sold the lots to another] person and that it is no longer the owner] of them. Conceding for the sake of argu-| mfent, that a judgment of specific performance of a contract of sale can be rendered, it can only be rendered when it is within the power of defendant to perform; when it is out his power, the remedy of ■the plaintiff is exclusively a demand in damages.- Lex neminem cogit ad vana. C. C., 1926-1927.

But the court itself will not render a judgment which it is not in its power to enforce. Bassett vs. School Directors of the Second District, 9 La. Ann. 513; State vs. City of New Orleans, 34 La. Ann. 469; Gaither vs. Green, 40 La. Ann. 362, 4 South. 210; State vs. Mayor, Etc., of City of New Orleans, 49 La. Ann. —, 22 South. 370; State vs. North American Land & Timber Company, 106 La. 622, 31 South. 172.

Nor can this court render a judgment decreeing plaintiff to be the owner of the lots described in the petition for the obvious reason that the Liberty Realty & Securities Co-, Inc., the registered owner of the lots at the date of the filing of this suit, was not made a party to this suit, as was the case in Lehman vs. Rice, 118 La. 975, 43 South. 639.

The judgment of $100 in favor of the defendant and against the plaintiff is not supported by the evidence. The testimony is that the plaintiff collected only $20. But considering the deposit of $145 under the control of the defendant we conclude to relegate that claim for future adjustment.

It is therefore ordered that the judgment rejecting the demand of the plaintiff for a specific performance by defendant of the contract of sale be affirmed; that there be a judgment of non-suit to so much of plaintiff’s petition demanding to be recognised as the owner- of the two ' lots'1 dédcrib'ed in the petition' herein'; and 'that defendant’s reconventional demand be rejected as in case of non-suit; .the plaintiff to pay the costs of the district court and the defendant the costs- of appeal.


author: ODOM, J.

text:
    No. 2641
    Second Circuit
    HEMLER v. MERCHANT
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Rar. 594, 598.
    If the lower court did not recognize plaintiff’s privilege on the crop, whether for rent of for supplies furnished, the appellate court must assume that the plaintiff offered no evidence to sustain such privileges.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact where clearly correct will be affirmed.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.

      Action by J. A. Hemler against T. B. Merchant. There' was judgment for defendant dissolving writs of provisional seizures, sequestration and attachment and plaintiff appealed.
    Judgment affirmed.
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    Ellis and Ellis, of Rayville, attorneys for defendant, appellee.
   ODOM, J.

On November 3, 1924, plaintiff brought suit against defendant T. B. Merchant to recover the sum of $266.20, alleged to be due for rent and for supplies for the year 1924, and upon alleging that plaintiff had a lessor’s privilege on certain crops produced, to the extent of $70.00 and a privilege as furnisher of supplies for the sum of $196.20, and upon the further allegation that defendant had mortgaged, assigned or disposed of his property to the prejudice of plaintiff’s lien, he asked for writs of provisional seizure, sequestration and attachment.

These 'writs were issued. However, it appears that no order for said writs was ever signed.

Without answering to the merits, the defendant, Merchant, moved that said writs be dissolved on the ground that no order for the issuance of the same had been signed. In the meantime, there had been seized' by the sheriff four bales of cotton, already ginned.

On November 5, 1924, D. R. Sartor, Sons & Co., intervened in the suit, claiming that it had purchased the cotton seized under the writs and had paid for the same, which cotton, it alleged, had been delivered to it in due course.

On December 9, 1924, the motion to dissolve the writs on the ground that no order therefor had been signed was taken up and tried and the motion was sustained.

On December 12th — three days later— the third opposition of D. R. Sartor, Sons & Co. was dismissed on motion of intervenor’s counsel.

No further action was taken with reference to the suit until January 25, 1926, when the ease was defaulted on motion of plaintiff’s counsel.

On January 29, 1926, the case was taken up and tried on its merits as against the defendant and there was judgment confirming the default in favor of the plaintiff for $266.20, the amount sued for.

On the same day counsel for plaintiff asked for and was granted a devolutive appeal to this court, returnable on March 15, 1926, which appeal was perfected by giving bond in the sum of $100.00.

The case was not argued orally but was submitted on briefs. Counsel for plaintiff, appellant, has not filed brief nor has he assigned in this court any error in the judgment appealed from and we are therefore at a loss to know on what ground he relies to have the judgment appealed from reversed.

We do not find in the record any testimony adduced on the trial of the case, but inasmuch as the judgment itself recites that it is based upon the law and the evidence, we must assume that the court had sufficient evidence on which to predicate the judgment.

The dissolution of the writs by the court, was unquestionably correct, for the reason that there was no order authorizing the issuance thereof.

Upon the dissolution of these writs the intervenor unquestionably had a right to assume, in the absence of any appeal from the court’s order, that there would be no further contention on the part of the plaintiff that the writs had properly issued, and therefore there was nothing for the intervenor to do but to dismiss its third opposition.

The plaintiff allowed more than one year to elapse between the date on which the writs were dissolved and the date on which the default was entered.

Inasmuch as the lower court did not recognize plaintiff’s privilege on the crop, either for rent or for supplies furnished, we must assume that the plaintiff offered no evidence to sustain such privileges.

In the record as presented to us, we find no error in the judgment appealed from and it is therefore affirmed.


author: WEBB, J.

text:
    No. 2271
    Second Circuit
    BAILES v. HARTMAN
    (May 7, 1926, Opinon and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 39.
    Where, after the rendition of a judgment by default the parties without objection entered into a formal trial, it is presumed that they consented to the judgment by default being vacated.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Union, Hon. H. G. Fields, Judge.
    Action by Annie Dunas Bailes, et al., against Leo Hartman, et al. There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Dawkins and Dawkins, of Farmerville, attorneys for plaintiffs, appellants.
    J. W. Elder, of Farmerville, attorney for defendants, appellees.
   WEBB, J.

In this action plaintiffs seek to be decreed the owners of an interest in immovable property and to have a parti-, tion made by licitation.

The suit was filed October 3, 1922, and a default entered November 21, 1922, which was confirmed on January 23, 1923, in which judgment was rendered in favor of plaintiffs as prayed for, the judgment being signed and filed February 19, 1923.

On April 17, 1923, defendant Leo Hartman filed' an answer, calling his vendors in warranty.

On April 19, 1923, defendant Leo Hartman filed a motion to vacate the judgment rendered on default.

On April 25, 1923, one of the warrantors filed an answer, and on May 29, 1923, default was entered against one of the warrantors who had not answered.

, The ease was called for trial on June 19, 1923, and all .parties represented by;-their counsel appeared, and evidence was offered and received without objection, and judgment was rendered rejecting plaintiffs’ demands, from which they appeal.

OPINION

-The ■ only ground which is urged for reversal of the judgment is that the record does not show the judgment rendered in favor of the plaintiffs on default to have been set aside.

. No . objection, was raised in the trial court, and. the case is submitted here on the following statement made in the brief of counsel for plaintiffs.

“I think that the proposition that a second trial without first having the original judgment set- aside, is apparent to the court and- that -this matter- does not require, any argument. It is a general rule that judgments have to be set aside either by a timely motion for a new - trial, which was not done as judgment was proven up February 15, 1923, and answer was not filed until April 17, 1923, and motion to set aside judgment was not filed until April 19, 1923, the second method after the case was closed was either a direct action or a rule. It is the opinion of the plaintiff herein that a direct action only could be resorted to for this purpose. But this is speculative argument as there is not shown by this record and there was not t.o the knowledge of plaintiffs any ruling setting the former judgment aside.”

, We have not been able to find any authority'which could be said to be directly in point. However, as we understand the position taken by the plaintiffs, is that the suit was concluded by the judgment rendered on default, and that the judgment rendered in the subsequent proceedings was null.

, We are of the opinion. that the conclusion is dependent on. whether or not the judgment “rendered on default was vacated.

While a judgment may not be set aside without the consent of the parties after it-has become final, yet the • court would be authorized to vacate such a judgment with their consent,, and where it appears that subsequent to the rendition of a judgment, by default the parties have appeared and entered into a fprmal trial and judgment has been rendered therein without any objection being taken, it should be presumed that they had consented to the judgment which was rendered on default being vacated, and the judgment rendered on trial will not be held invalid unless there is in the record evidence which overcomes the presumption.

The mere fact that the record does not show a formal entry vacating the judgment rendered on default, is not, in our opinion, sufficient to overcome the presumption, and the judgment appealed from is therefore affirmed.


author: O'DOM, J.

text:
    No. 2032
    Second Circuit
    WILSON v. HUSSEY AND WHELAN
    (March 11, 1926. Opinion and Decree.)
    (April 10, 1926. Rehearing Refused.)

      I Syllabus 6y the Editor.)

    1. Louisiana Digest — Evidence.—Par. 58, 59.
    The defendant, having made .special plea that the crossties sold them were unsuitable for the purpose for which they were made, has the burden of proving that the ties which they accepted were faulty and that the ties which they rejected were not such as should have been accepted.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. H. C. Drew, Special Judge.
    Action by N. E. Wilson against Hussey and Whelan. •
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    L. K. Watkins, of Minden, attorney for plaintiff, appellee.
    Charles M. Roberts, of Minden, attorney for defendants, appellants.
   O'DOM, J.

Plaintiff brings this suit to recover of defendants the sum of $2000.00 which he alleges is due him as a balance on account for crossties sold and delivered to defendants in the year 1920.

Alleging that defendants were nonresidents of the state and that he had a vendor’s privilege on certain ties which, at the time, were situated at different points on the L. & A. Railroad in Webster parish, Louisiana, and which he had sold to defendants, and alleging, further, that the defendants were about to remove said ties and place them beyond the jurisdiction of the court, he procured the issuance of a writ of attachment and there was attached under said writ 5653 crossties.

Defendants, in answer, denied, any indebtedness to plaintiff and set up that in the course of their dealings with plaintiff during the year 1920 they purchased and paid for crossties amounting in value to something over $11,000.00, and especially alleged that they had overpaid the plaintiff in the sum of $429.93, and they reconvened for that amount.

Defendants further asked to be allowed attorney’s fees in the sum of $250.00.

There was judgment in the lower court in favor (of the plaintiff and against the defendants for the sum of $1145.01 and costs, and maintaining the writ of attachment.

Prom this judgment defendants appealed and asked that the judgment in favor of plaintiff be reversed and that their claim in reconvention be allowed.

Plaintiff did not appeal, nor does he ask that the judgment be amended.

OPINION

In the early part of 1920 the plaintiff entered into a contract to deliver to defendants, who are tie contractors, cross-ties to be delivered at certain points 'on the L. & A. and V. S. & P. Railroads running through the parish of Webster. Just what this contract was it is difficult to ascertain from the testimony, but we think it not necessary to attempt to ascertain just what agreement was reached between those parties with reference to the inspection, time of delivery or price of the ties, because the issues involved do not hinge upon the contract which was entered into.

We cannot better state the issues before the court than to use the language of counsel for defendant in his brief filed in this court. He says:

“There were thirty-six pages of testimony taken in the trial of this case, but when boiled down this is simply a question as to whether or not defendants should be compelled to pay for' ties which failed to come up to inspection.”

The plaintiff testified that during the year 1920 he had made or purchased and delivered at various points along the lines of the L. & A. and V. S. & P. Railroads 17,609 crossties. He files an itemized statement showing the number of ties purchased from and hauled by various parties, all aggregating the number as above set forth.

The defendants, on the contrary, file a statement showing that they had inspected and received 14,802 ties.

Defendants’ testimony is to the effect that they inspected and received all the ties delivered by plaintiff which were made in accordance with specifications and were fit for the use for which they were made. Their statement shows that they paid plaintiff $429.93 more than the value of the ties.

Defendants’ testimony is to the effect that the ties which they refused to accept had remained in the woods 'for some time after they were made and had become old and unfit for use and were such as the chief inspector for the railroads would not accept.

There is no contention on the part of defendants that plaintiff did not as a matter of fact deliver on the railroad 17,609 ties, and there is no suggestion •made by them that these ties were not made according to proper specifications.

Counsel, in his brief, further states:

“I have little reason to doubt that when these ties were cut and delivered to Wilson in the woods that they were good ties and would have been inspected and accepted by Hussey & Whelan if they had been delivered promptly, but many of these ties were cut in the early part of the year 1920, and were not delivered on the road until June, July and August; at that time they were so old that they were unfit for the purpose for which Hussey & Whelan were buying ties, and as a consequence were rejected.”

It is perfectly evident, therefore, that the defense which the defendants urge to the demands made by plaintiff is that the ties or a part of them were not suitable for the purpose for which they mere made at the time they were delivered on- the railroad. Having made this special defense, and making no denial that plaintiff actually delivered the number of ties which he says he delivered, the burden, therefore, was upon defendants to show that as a matter of fact some of the ties, at lease those which they rejected, were not, as a mater of fact, such ties as they should have accepted.

A reading of the testimony has convinced us that defendants have totally failed to make out the defense which they set up. Their testimony, with reference to the condition of the ties which they refused to accept, is very meagre. They have but little to say in their testimony with respect to the condition of the ties. They called as a witness Mr. Elam, who is chief tie inspector for the M. K. & T. Railroad. Mr. Elam testified that he was called upon by defendants to make an inspection of certain ties which he found at various points on said lines of railroad. He stated that some of the ties which he inspected were not up to the standard on account of being old, etc. He was specifically asked how many ties he refused to accept, and he testified that he did not recall.

There is absolutely no testimony whatever to show how many ties were rejected by this inspector or, as a matter of fact, how many ties were not fit for use.

It being shown by the testimony of plaintiff and not disputed by anyone that plaintiff actually delivered 17,609 ties on the railroad, and there being no good reason shown why all of these ties should not have been accepted- by the defendants, it necessarily follows that plaintiff is entitled to recover the amount which he claims.

Even if it be conceded that some of the ties were not up to the standard, as testified to by Mr. Elam, there is no way for the court to determine the number of such ties.

The judge -of the District Court, after hearing the witnesses, reached the conclusion that the plaintiff was entitled to recover $1145.01. As he assigned no written reasons for his judgment, we are unable to ascertain just how he arrived at that figure.

However, we think his judgment to that extent is amply sustained by the testimony. There is no doubt whatever but that plaintiff is entitled to judgment for that amount, if not more.

However, plaintiff has not asked that the judgment be amended.

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


author: CARVER, J.

text:
    No. 2426
    Second Circuit
    POLICE JURY OF WINN PARISH v. W. T. HEFLIN, SHERIFF, ET AL.
    (See this case in 2 La. App. 703 and 159 La. 375, 105 South. 377.)
    Appeal from Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Harry Fuller, attorney for plaintiff, appellant.
    A. Leonard Allen, Hawthorn & Stafford, attorneys for défendants, appellees.
   CARVER, J.

The Police Jury of Winn Parish brought this suit against the sheriff and treasurer of that parish to recover $1605.75 alleged to have been paid illegally by the latter to the former out -of the sheriff’s salary fund in the parish treasury.

The district judge sustained an exception of no cause of action and dismissed the suit.

From this judgment the police jury-appealed to this court.

The members of this court, pursuant to Section 25 of Article VII of the Constitution of 1921, certified the case to the Supreme Court for instructions. It submitted to that court the following questions :

I.

Is the supervisor of public accounts authorized to decide disagreements between the district judge and the president of the police jury as- to the sheriff’s need of additional expense money in the absence of an emergency.

II.

If so,, the absence of an emergency being alleged, were the judge and supervisor authorized to approve the requisition made after the expense had been incurred, or could they do so only before it was incurred?

HI.

If not authorized to grant the approval after the expense 'was incurred, can the police jury sue for the amount demanded by the sheriff and paid by the treasurer on an approval made after incurring the expense?

The Supreme Court answered questions numbers I and II in the affirmative and questions number III in the negative.

For the reasons given by the Supreme Court in its decision, reported in 159 La. 375 (105 Southern Reporter 377), the judgment of the lower court is affirmed.


author: REYNOLDS, J. ODOM, J.

text:
    No. 2314
    Second Circuit
    WALKER v. BREMMER
    (December 10, 1925, Opinion and Decree.)
    (March 11, 1926, Rehearing Refused.)
    (April 10, 1926, Opinion and Decree of Rehearing.)
    (May 4, 1926, Certiorari Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 11, 110.
    One who sequesters the property of another as the other’s property thereby admits the ownership of it.
    2. Louisiana, Digest — Sequestration—Par. 24, 25, 28, 34, 35.
    One cannot be permitted to take advantage of his unlawful act. Therefore, where one sequesters property, has it delivered to him on a release bond and then voluntarily dismisses his suit, the seizure of the property is illegal, he cannot, by this illegal seizure, deprive the. defendant of his right to the value of the- property when it was seized.
    3. Louisiana Digest — Sequestration—Par. 34, 35.
    The value of property that plaintiff (in a sequestration suit) who has obtained possession of the seized property under a release bond and sold it is liable for, in case the writ was illegally issued, is the value of the property at the time it was seized and not its value at the time of the decision of the court.

      Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by B. F. Walker against C. M. Bremmer, et ah, to recover the value of lumber seized by defendant in an illegal sequestration suit, released under bond, and sold by the defendant.
    There was judgment for plaintiff and defendant appealed-
    Judgment amended and affirmed.
    A. P. Garland, of Shreveport, attorney for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

On June 10, 1920, Bod-caw Valley Lumber Company, a commercial partnership composed of C. M. Brenner, Lee Deck and El-nest Deck, procured a writ of sequestration in Suit No. 27,360 on the docket of the First Judicial District Court of Louisiana, Parish of Caddo, entitled Bodcaw Lumber Company vs. B- F. Walker, under which 39,000 feet of lumber, more or less, was seized.

More than ten days after the seizure the defendant in that suit, not having bonded the lumber, the plaintiff therein, Bodcaw Valley Lumber Company, on July 14, 1920, bonded it, giving the United States Fidelity & Guaranty Company of Maryland as surety on its forthcoming bond.

The Bodcaw Valley Lumber Company sold the lumber shortly after so obtaining possession of it.

Suit No. 27,360 remained pending on the docket of the First Judicial District Court of Louisiana, Parish of Caddo, until October 31, 1922, when it was dismissed as in case of non-suit on motion of counsel for plaintiff therein.

On January 10, 1923, this suit was filed, asking for $1760.00 as damages for the wrongful conversion of plaintiff’s said lumber by the defendants in this suit, plaintiffs in that.

The plaintiff reduced the amount claimed by him from $1760.00 to $1560.00, and the amount now involved in the suit is only $1560-00.

Defendants denied liability.

The case was called for trial in March, 1923, and 320 pages of testimony was taken.

After argument by counsel for both plaintiff and defendants, the case was dismissed as of non-suit on March 8, 1924.

On March 12, 1924, the court, on its own motion, ordered a new trial, and thereupon 65 pages of additional testimony was taken.

The court then gave judgment against all of the defendants for $413.21, and against C. M. Brenner, Lee Deck and Ernest Deck for the additional sum of $348.77.

The defendants appealed, but only C. M. Brenner and United States Fidelity & Guaranty Company of Maryland perfected their appeal.

It this court the plaintiff has answered the appeal and asked' that the judgment be amended so as .to allow the full amount claimed.

OPINION

The first question to be decided is whether or not the plaintiff was the owner of the 39,000 feet- of lumber, more or less, sequestered.

As to approximately 15,000 feet of the lumber in the stack at 'or near the mill, there is no question, for it was sequestered as the property of B. F. Walker, the plaintiff, and having sequestered it as his property the defendants thereby admitted his ownership of it.

As to the remaining 24,000 feet, more or less, seized in Bounds’ Pasture, the following evidence is relevant.

The contract between plaintiff and Bod-caw Valley Lumber Company provides:

“In consideration of the above, services the Bodcaw Valley Lbr. Co., or Lee Deck, agrees to pay B. F. Walker’s expenses or board while at work at the mill and furnish him (500) five hundred feet of lumber per day F.P.B. Cotton Valley, La., the lumber to be of the kind and quality selected and manufactured by B. F. Wfalker during the 60 days, or the amount of lumber earned by B. F. Walker during the 60 days is to be furnished within that time, and may be either pine or hardwood, either rough or dressed, timbers or lumber of the grades required by B. F. Walker at his option.”

B. F. Walker testified, pages 56 and 57:

“Q. Was any of the lumber delivered to you and removed by you from the mill site of the Bodcaw Valley Lumber Company during the Sixty days you testified about?
“A. Tes, a little more than twenty-eight thousand feet.
“Q. Where did you move it to?
“A. About a quarter of a mile away from the mill yard and stacked it in Mr. Bounds’ pasture near his house.”

Lee Deck testified, pp. 40-45:

“Q. Was there not about twenty-four thousand feet of lumber manufactured from logs bought by the Bodcaw Valley Lumber Company and delivered to Mr. Walker by you?
“A. Well, he hauled away from the mill somewhere around twenty or twenty-four thousand feet.
$ ‡ ‡ $
“Q. Now what was to be paid for services in repairing the mill?
“A. He was to be paid at the rate of five hundred feet of lumber per day out of the lumber that he cut for repairing the mill.
Hi * " * *
“Q. You agreed on that contract?
“A. Well, he come there and was to fix up the mill and was to get this lumber.
$ $ $ ‡
“Q. Well, Mr. Walker went to work and ' repaired that mill under the contract to that effect?
“A. Yes, sir.
* * He *
“Q. Now, Mr. Walker was in possession of twenty-four thousand feet of lumber in the Bounds pasture?
“A. Yes, sir, and it was away from the mill.”

W. J. Bounds testified, pp. 87-88.

“Q. Were you around the mill at any time while Mr. Walker was moving this lumber to your pasture?
“A. Yes, I was working there then.
“Q. Was Mr. Lee Deck there?
“A. Yes, sir.
“Q. Was Mr. Ernest Deck there?
“A. Yes, sir.
“Q. They were there while Mr. Walker was moving this lumber?
“A. Yes, they were there.
“Q. Did you hear them make any complaint about his moving this lumber out?
“A. No, sir, never heard any complaint.
* * * *
“Q. They were there all the time he was moving it?
“A. Yes, sir, the first part of it they stacked out on the end of the tram and the other of it just pushed off the end of • the mill shed.
“Q. Know who it was pushed for?
“A. Mr. Walker. I saw Mr. Ernest Deck helping him load some of it on my wagon. He had one of my wagons and hauled it from the mill up to the pasture.”

Prom this testimony we are convinced that the lumber sequestered in Bounds’ pasture had been delivered to B. P. Walker and was his property.

The next question to be decided is as to the value of the lumber sequestered, and as to whether plaintiff is entitled to recover its value as of the date it was ¡bonded and sold by defendants or as of the date of the filing of this suit.

Law is common sense and justice applied to human affairs between man and rnan. It would be unfair to hold that the Defendants in this ease, plaintiffs in Suit No. 27,360, could take possession, of plaintiff’s lumber in 1920 and sell it when it was worth from forty to fifty dollars per thousand feet and hold their suit in court until October, 1923, when the price of lumber had declined fifty -per cent or more and then discharge their obligation for damages to plaintiff by simply paying the value of the lumber as of the date that plaintiffs in Suit No. 27,360 dismissed their suit as in case of non-suit in October, 1923.

It would be permitting the defendants to take advantage of their own wrongful act in sequestering the property of the plaintiff in this suit.

Plaintiff in this case is entitled to recover damages based on the value of the lumber at the time it was bonded and sold by Bodcaw Valley Lumber Company.

We held in Overland-Texarkana Co. vs. Bickley, 1 La. App. 699, that the use of another’s property against his will was a wrongful use of the property. Under that authority and the authorities therein cited plaintiff in this case is entitled to judgment for the value of the lumber taken, and sold by defendants.

Defendants insist with earnestness that we pass upon the question of the district judge’s right to grant a new trial in this case on his own motion after he had dismissed the case as of non-suit.

If we should sustain defendants’ contention and hold that the district judge wrongfully ordered a new trial, it ’ would avail defendants nothing, for we find ample evidence introduced on the first hearing to warrant a decision in this case; and,, having found that the plaintiff is entitled to' recover damages based on the value of the lumber as of the date of the bonding and sale of the same by defendants, it is unnecessary for us to pass upon this question.

Defendant insists that of the 39,000 feet of lumber, more or less, bonded by them, only 22,000 feet had legally been seized.

The lumber was seized and turned over to W. J. Bounds as keeper, and he testified, page 89:

“Q. Now, Mr. Bounds, do you remember the suit by the Bodcaw Valley Lumber Company against Mr. Walker in the parish of Caddo claiming the ownership of this lumber?
“A. Yes, I remember the time Mr. Edwards came up there and attached the lumber. I wasn’t at home. I was at Rocky Mount, and I met Mr. Edwards as he was coming from there.
“Q. That was in July, 1920.
“A. Fifth of June it was.
“Q. Fifth of June?
“A. Yes, sir.
“Q. Were you appointed custodian of that lumber?
“A. Yes, sir.
“Q. By whom?
“A. By Mr. Edwards.
“Q. Did you take possession of it?
“A. Yes, sir.
“Q. What lumber did you take possession of?
“A. Well, I took possession of all of it. He told me the Walker lumber.
“Q.' You took possession of the lumber in your pasture? And the fifteen thousand feet more or less down about the mill site?
“A. Yes, sir.
“Q. Did you hold possession of that lumber?
“A. Yes, sir.
# >¡« sfc
“Q. Did you surrender this lumber— afterwards surrender this lumber to Bod-caw Valley Lumber Company?
“A. Yes, sir, Mr. Edwards wrote me to release the lumber to the Bodcaw Valley Lumber Company. I have the release in my pocket if you want to look at it.
“Q. Did you release it?
“A. Yes, sir.
“Q. What did they do with it?
“A. Well, they carried it over to Cotton Valley and shipped it, I guess. I never seen them shipping it, but' they carried it off over there.
“Q. Then you held possession of this lumber as custodian?
“A. Yes, sir, all through.
“Q. Until the delivery of it to the Bodcaw Valley Lumber Company?
“A. Yes, sir.”

From this testimony we think the lumber in both stacks was actually legally seized; but in any event the defendant here was the plaintiff in the suit in which it was seized, and it cannot be allowed to take advantage of any laches in taking physical possession of the lumber seized after it has bonded and sold the same.

Plaintiff insists that under these conditions defendant is estopped from denying that it bonded and seized and sold 39,000 feet of his lumber in the summer of 1920.

Defendant contends that it is not estopped for the reason that it did not do or say anything that caused plaintiff to change his position to his detriment.

The answer to defendant’s contention is that, under the writ of sequestration in 1920, which it then claimed was meritorious, but which they now admit, by the taking of a voluntary non suit, is without protective force to it, changed the position of plaintiff from that of owner in possession to that of owner out of possession, and by virtue of its possession it sold all of plaintiff’s lumber that was in both stacks.

We therefore think plaintiff’s plea of estoppel is sound.

The lumber bonded by defendant was 39.000 feet, more or less, and had been selected by plaintiff as lumber suitable for building derricks. The evidence of W. A. McKinnen, a man known to the court to be of high integrity, gives (Evidence, page 20,) prices of lumber prevailing about the date of the bonding of the lumber in question at from $56.25 to $32-25 per thousand, or, to be exact, he gives the price of four sales as follows: $56.25 per thousand, $47.25 per thousand, $49.25 per thousand, and $32.25 per thousand; making a price of $43.75 per thousand, based on a general average.

From all of the evidence in the case touching the value of plaintiff’s lumber at the time it was bonded, we think $40.00 per thousand has been established as its value, ,and that $40.00 per thousand for 39.000 feet of lumber claimed by plaintiff and bonded and sold by defendant plaintiff is entitled to judgment for, or $1560.00, the amount sued for.

For the above reasons it is ordered, adjudged and decreed that the judgment appealed from be amended as to C. M. Brenner and United States Fidelity & Guaranty Company of Maryland, and it is now ordered, adjudged and decreed that plaintiff, B. F. Walker, do have judgment against C. M. Brenner and United States Fidelity & Guaranty Company of Maryland in solido for the sum of fifteen hundred and- sixty dollars with five per cent per annum interest thereon from the date of this decree and all costs of suit. The defendants, Lee Deck and Ernest Deck, not having appealed from the judgment of the lower court the same as to them remains in full force and effect. And as thus amended the judgment of the lower court is affirmed.

ON APPLICATION FOR REHEARING

ODOM, J.

We have given most careful consideration to the brief filed by defendants in support of their application for rehearing and have examined all the authorities cited.

We cannot concede counsel’s point. in this case.

On June 10, 1920, the defendant, Bod-caw Valley Lumber Company, sued the plaintiff and procured the issuance of a writ of sequestration and had sequestered a certain amount of lumber which plaintiff claimed.

.Plaintif in this case, defendant in that suit, having failed to bond the seizure within ten days, the defendant Bodcaw Valley Lumber Company, plaintiff in that suit, had the sequestered property released to it on a forthcoming bond. It sold the property, and appropriated the proceeds. More than two years later it voluntarily dismissed its suit.

Subsequent to the dismissal of the suit plaintiff brought this suit against the defendant and its surety on the release bond to recover the value of his property thus taken possession of and converted.

Defendant Bodcaw Valley Lumber Company admitted, in answer, that it had sold the lumber of which it got possession, but it made no effort to return said lumber to plaintiff or a like quantity and quality and value.

Counsel for defendants concede that plaintiff is within his rights in suing on the release bond; but, as we understand their contention, it is that the amount of recovery should be based upon the value of the property, not at the time it was thus obtained and converted, but upon its value at the termination of the litigation, it being shown that the price of lumber materially declined between the date on which it was seized in 1920 and the date on which the suit was tried. They cite many decisions of the Supreme Court. We have carefully read all of them and, in our opinion, not one of them supports their contention.

The leading case cited, on which they apparently rely and which has been followed in many other decisions cited by counsel, is that of Baker, et al., vs. Morrison, et al., 4 La. Ann. 372.

In that case the property sequestered was released to the defendant on a forthcoming bond/ The plaintiff in that case obtained judgment against the defendant for a certain amount. A writ of fi fa was issued and the return on the writ showed no property found.

Plaintiff then brought suit against the sureties on the bond, claiming judgment against them for the amount of the judgment against the original defendant, and there was judgment accordingly. The bond in that case authorized such a decree, but the court held that the provision in the bond providing for such a decree went be: yond the law and that the bond must be construed according to the law under which it was given. And the court said:

“The 279th article of the Code of Practice, which grants the right of bonding sequestered property, contemplates a security equivalent to the value of the goods released. Article 280 declares that the surety shall be responsible that the defendant shall not send the movables or slaves out of the jurisdiction of the court; that he shall not make improper use of them, and that he will faithfully present them after the definitive judgment, etc.”

And the court further said:

“The injury sustained by plaintiff is the value of the sequestered property which, if it had been presented, would have been applied to plaintiff’s claim. A judgment resting upon the mere standard of the amount of plaintiff’s claim without reference to the value of the property sequestered is therefore erroneous. As we have no evidence of the value of the property, the suit must be dismissed.”

In the case of Jacobson vs. Saville, 6 La. Ann. 277, cited by counsel, it was held that where a plaintiff sequestered goods and carried his . suit to final judgment and then seized and sold the goods sequestered under a, fi. fa. the sureties on the bond were released.

The case of Francis vs. Martin, 28 La. Ann. 410, cited by counsel, follows the Baker case to the effect that the injury sustained by plaintiff is the value of the sequestered property.

In the ease of Carroll & Co. vs. Hamilton, 30 La. Ann. 523, the court held that the sureties on a release bond cannot be held for more than the value of the property released from sequestration, regardless of the amount of the judgment.

In the case of Schmidt & Zeigler vs. Brown, 33 La. Ann. 418, in speaking of the penalty of such a bond, the court said:

“Under the jurisprudence as settled it is that in default of delivery the sureties are bound not for the value of the property but for the amount of the judgment, provided it does not exceed the value of the property.”

It is not held in any of the cited cases that the value of the property at the termination of the litigation is the measure of the damage, nor have we been able to find any which has so held.

In the instant case, the equities are all with the plaintiff. His property was seized and taken from him in 1920 when the price of lumber was high- Defendant Bodcaw Lumber Company got the benefit of the high price and now proposes to settle with plaintiff with a greatly reduced value. • The fact that after having the property sequestered and finally delivered to it on a release bond it voluntarily dismissed its suit, indicates that the seizure of the property was illegal. It therefore got illegal possession of plaintiff’s property and converted it. It cannot be permitted to take advantage of its unlawful act to its own advantage and to the detriment of plaintiff.

As above stated, defendant, Bodcaw Lumber Company, admits that it got possession of the property and sold it, and it does not propose to return the property. In fact, it could not do so, as the property has already been disposed of.

Inasmuch as it cannot restore the property and inasmuch as the measure of damages is the value of the property obtained, it must respond for the value of the property on the date on which it was taken.

• On the questions of fact presented, as to the amount and value of the lumber seized, we think our former judgment is correct.

Rehearing refused.


author: REYNOLDS, J.

text:
    No. 2604
    Second Circuit
    DUBACH MILL COMPANY, INC., v. M. M. CARROLL LUMBER COMPANY, INC.
    (May 7, 1926, Opinion and Decree.)
    (June 2, 1926, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62.
    When a petition discloses a cause of action as to any portion of the amount sued for, an exception of no cause of action should be overruled.
    Davis v. Arkansas Southern R. R. Co., 117 La. 320, 41 So. 587.

      2. Louisiana Digest — Pleading—Par. 54, 55.
    Defective verification must be taken advantage of, if at all, in the case of a petition, by exception filed in limine litis.
    Act No. 128 of 1914 of the Louisiana Legislature.
    3. Louisiana Digest — Appeal—Par. 512; Costs and Fees — Par. 62.
    Damages will not be allowed for frivolous devolutive appeal.
    Chaff e, Syndic, v. Carroll, 35 La. Ann. 115.
    Elizabeth Crofts v. Jeremiah Moynihan, et al., 26 La. Ann. 725.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Dubach Mill Company, Inc., against M. M. Carroll Lumber Company, et al.
    There was judgment for plaintiff and defendant appealed-
    Judgment affirmed.
   STATEMENT OP THE CASE

REYNOLDS, J.

This • is a suit on an open account for $1014.33 against M. M. Carroll Lumber Company and M. M. Carroll, alleged to be the sole owner of said M. M. Carroll Lumber Company.

Citation was served on the defendants on September 5, 1925.

On September 28, 1925, default was taken.

On October 1, 1925, an exception of no cause of action and want of proper verification was filed.

On October 1, 1925, the following affidavit was written at the foot of the petition.

“State of Louisiana,

“Parish of Lincoln.

“Personally came and appeared before me, the undersigned legal authority, J. P. Voss, who, being first duly sworn, says he is active vice-president and general manager of The Dubach Mill Company, Inc., the plaintiff in the foregoing suit, and -is duly authorized to make this affidavit, and that the allegations in foregoing petition are true, so help him God.

“J. P. VOSS.

“Sworn to and subscribed before me this Oct. 1, 1925.

“J. W. HARRELL,

“Dy. C.D.C. and Notary Public.”

October 6, 1925, the exception of no cause of action and want of proper verification was tried and overruled.

October 7, 1925, the default was set aside and default taken on that day.

November 3, 1925, a second default was taken.

November 6, 1925, the default was made final and judgment was rendered in favor of plaintiff, in which it is recited:

“The plaintiff having proved its demands in open court, and the law and the evidence being in favor thereof, it is hereby ordered, adjudged and decreed that the said default be now confirmed and made final and that there be judgment iri. favor of the plaintiff and against the defendants, M. M. Carroll Lumber Company and M. M. Carroll, in solido, for the full and true sum of one thousand, fourteen and 33-100 ($1014.33) dollars, with 5% per annum interest thereon from August 31, 1924, until paid, and for all costs of this suit.”

November 23, 1925, motion for new trial was set for Friday of that week.

November 27, 1925, the motion for new trial was tried and taken under advisement.

November 30, 1925, the motion for new trial* was overruled.

December 7, 1925, orders of appeal, suspensive and devolutive, were prayed for and granted.

December 23, 1925, the devolutive appeal was perfected.

Plaintiff answered the appeal and asked for damages for frivolous appeal.

OPINION

The first question to be passed upon is whether the overruling of defendants’ exception of no cause of action and defective verification by the court was correct.

Defendants based their exception of no cause of action upon the ground that I there was no allegation in the petition in-I dieating what sort of a legal entity the Im. M. Carroll Lumber Company was— [whether a partnership, a corporation, an [association, or what not.

I In our opinion this is not material, Ifor the petition alleges that M. M. Carroll is the sole owner of the M. M. Carroll Lumber Company, and it demands judgment against M. M. Carroll, and the allegations of the petition express a cause of action against M. M. Carroll.

Defendant further complains that plaintiff does not allege that M. M. Carroll Lumber Company and M. M. Carroll are indebted to the plaintiff in solido.

This, we think, is also not important; for if plaintiff’s petition only alleges a joint indebtedness, an exception of no cause of action cannot be sustained, for:

“When a petition discloses a cause of action as to any portion of the amount sued for, an exception of no cause of action should be dismissed.”

Davis vs. Arkansas Southern R. R. Co., 117 La. 320, 41 South. 587.

Defendants’ counsel argue with much zeal that their clients have been greatly imposed upon by the affidavit of J. P. Voss, written at the bottom of plaintiff’s petition on October 1, 1925, after they had filed a motion to dismiss for lack of proper verification, and insist that this court should pass upon that question.

We do not think that question is involved in this case, for the reason that default was taken in the case before defendants filed their exception of lack of proper verification, and not having taken advantage of the alleged want of proper verification by an exception in limine, their exception was properly overruled with regard to Voss’ affidavit complained of by them.

Defendants further complain that plaintiff’s demand was for an amount exceeding one thousand dollars and that it was not proved by two witnesses or by one witness and other corroborating evidence.

This is a Question that this court is not in position to pass upon in this case, for the evidence on which the judgment was rendered is not before the court and the judgment of the District Court recites that the plaintiff “proved its demands in open court”, and we are bound by its findings, in the absence of any evidence to the contrary.

Citation was served on the defendants on September 5, 1925, and no further action was taken in the case until September 28, 1925, during which time defendants could have filed an exception in limine and put at issue whether or not the petitioner had properly verified its petition; but on September 28, 1925, default was taken and thereafter defendants had no standing in court to complain of lack of proper verification of the petition.

Plaintiff prays for damages for frivolous appeal. It cannot recover any for it has not been deprived of the right to execute its judgment by a suspensive appeal bond.

For all of the above reasons it is ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 2655
    Second Circuit
    BOYKIN v. BOYKIN
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1.Louisiana Digest — Obligations — Par. 76, 87.
    Construing a deed and a lease contract entered into by the co-heirs, the conclusion is reached that the “Delco Lighting Plant” which was attached to the real estate and in reality a part of the dwelling was considered an improvement, although it was not mentioned by name in either the deed or the lease contract.
    2.Louisiana Digest — Obligations—Par. 90.
    Where the preponderance of testimony • shows that the Delco Lighting Plant was mentioned by one of the parties in the presence of the plaintiff who did not challenge the statement that it was included in the sale made by plaintiff, it therefore must be consid- . ered the property of the defendant.
    3.Louisiana Digest — Successions—Par. 5
    A Delco Lighting Plant placed on the property of his parents must be considered part of the succession property of the parents although the heir was not paid for it, but did not specify it in the deed and lease agreement with his co-heirs in the settlement of the succession.

      Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    Action by Frank N. Boykin against Robert E. Boykin, et ah, for possession of a Delco Lighting Plant. Sequestration was issued. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis and Ellis, of Rayville, attorneys for plaintiff, appellant.
    Todd and Todd, of Bastrop, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff alleged in his petition, that he is the owner of a Delco lighting plant with sixteen wet water batteries, one pump with one-half horse power generator, one fan with electric fixtures, situated in and near the main residence, known as the J. W. Boykin Place, in Rich-land parish, Louisiana, valued at $350.00; that the same was purchased by him with his separate funds and installed in the said J. W. Boykin residence while he was living in and occupying said residence, for [his own use and convenience, without any intention of attaching it to or making it a part of the realty; that when he removed pom said residence he attempted to remove the Delco lighting plant and fixtures and was prevented from doing so by Hefendants.

j He prayed to be decreed the owner of said property and to be allowed to remove |he same.

I In a supplemental and amended petition, le alleged that he feared that during the tendency of the suit the defendants would remove the property and asked for and was granted a writ of sequestration under which the property was seized.

He further alleged that he had been damaged in the sum of $50.00, $25.00 for loss of time in attempting to gain possession of this property, and $25.00 for loss of the use thereof, and prayed for judgment for that amount.

Defendants answered denying plaintiff’s ownership of the property and specially alleged that they had purchased the same from him.

There was judgment in the district court rejecting plaintiff’s demands at his costs, from which he prosecutes this appeal.

OPINION

The plaintiff and defendants are the children .and sole heirs of their father, J. W. Boykin, who died in 1924, and their mother, Mrs. Georgia L. Boykin, who died in 1922.

The father and mother of these litigants owned a tract of land consisting of some 265 acres situated in Richland parish on which there was a residence which they occupied up to the date of their death.

We infer from the record that all the children, except the plaintiff, left the farm prior to 1908. In that year the plaintiff took charge of the farm as manager for his father and mother and lived in the residence with them until after the death of the father in 1924. During that time or at .least a portion of it he operated a mercantile business in the store situated on the land and located near the residence. The mercantile business was his own separate enterprise.

During the year 1918 the plaintiff, while residing -in said residence with his father and mother, at his own expense installed a Delco lighting plant in connection with the residence for his own convenience and for the convenience of his father and mother. This plant furnished current for the residence and the storehouse used by plaintiff as a separate enterprise. He contends that the Delco plant was never intended by him to become a part of the realty but was his separate property and that he now has the right to remove it.

It is admitted by defendants that plaintiff did install the Delco lighting plant at his own expense, hut it is also their contention that it was intended to be and remain an improvement on the real estate then owned by plaintiff’s father and mother and that they acquired the same along with plaintiff’s interest in the succession property after the death of the father and mother.

Therefore, the sole question to be determined in this suit is, whether the defendants acquired this Delco lighting system in the settlement and purchase hereinafter mentioned.

After the death of the father, in 1924, the mother having previously died, there seems to have been some friction between plaintiff and the other heirs over a settlement of the succession property, and from statements in the brief of counsel for plaintiff we infer that there was litigation either threatened or pending. B,ut a settlement between them was reached by which the defendants purchased for the price of $2750.00 plaintiff’s undivided one-fifth interest in all of the property, both real and personal, belonging to the successions of their deceased parents.

The act of sale sets out that Frank N. Boykin, the plaintiff in this suit, sells to the defendants his undivided one-fifth interest in certain real estate which is described, together with—

“* * * all the improvements situated upon all of the said hereinabove described property, consisting of dwelling, gin house and machinery, store building, barns, cabins and all other improvements. Also all of the personal and movable property of every kind, character, nature and description belonging to the said J. W. Boykin and the said Mrs. Georgia L. Boykin, deceased, either or both of them, at the time of their respective deaths.”

Subsequent to this settlement and transfer, the defendants, by written contract, leased to the plaintiff, Frank N. Boykin, for the year 1925—

“* * * that certain property in the parish of Richland known as the Boykin estate, that is, ■ the property owned by J. L. Boykin and Mrs. Georgia L. Boy-kin, his wife, at the time of their death;’

consisting of about 265 acres <5f land, with livestock and farming implements, dwelling house and other improvements and appurtenances situated on said real estate. |

This lease contract sets out that these | parties, being the heirs of said J. W. Boy-kin and Mrs. Georgia L. Boykin, have set-1 tied all their differences over the succes-1 sions of their deceased parents, and paragraph fourth thereof read as follows:

“At the end of this contract the said I party of the second part (the lessee and I plaintiff herein) shall surrender to thel parties of the first part (the lessors and I defendants herein) the said property, and I he shall be permitted to remove from the said property the following property, to-wit:”

Then follows an itemized list of. the property which he was allowed to remove, there being specified four mules, five head of cattle, one wagon, one stalk cutter, plows, sweeps and harrows, one automobile, all the merchandise in the store, and all personal effects belonging to the party of the second part in the residence on the said property, and all the hogs, chickens and turkeys

“* * * left after leaving on the place the number hereinafter set out”.

Paragraph 5th of the lease contract and settlement provides that said property of the second part—

“* * * shall leave on the said property.”

Then follows an itemized list of the property to be left, consisting of six horses, all named, one colt, one mule, and all cattle branded “B” and marked with a crop off of the left ear and an overbit on the right ear, one wagon, one cotton-planter, two harrows, three turning-plows, two sweep-stocks, 6000 pounds of cotton seed for planting' purposes, 60 bushels of corn, 60 head of grown chickens, and all blacksmith tools.

It further stipulated that the lease did not include the cotton, gin, which was to be operated by the lessors, but they agreed to gin the cotton produced on the plantation at 50 cents per 100 pounds and to charge plaintiff 25 cents profit per bale on the cost of bagging and ties used to wrap the cotton, and further provided that Robert E. Boykin, one of the defendants, should have the privilege of occupying

“* * * the first two rooms on the west side of the residence during the remainder of 1925, rent free”,

and that each of the parties should pay one-fifth of the court costs of probating the last will and testament of J. W. Boy-kin and Mrs. Georgia L. Boykin, their deceased parents.

It further provided that the lessee should pay $70.00, or one-fifth of $350.00, indebtedness on the engine in the gin, the lessors to pay the balance. •

We have recited in detail the personal goods and effects which were .to remain on the property at the end of the lease and also that which might be removed by the lessee, showing with what detail these parties seem to have gone into the settlement of the successions.

As already stated, this document, in addition to its being a lease contract, purports to be a full and complete settlement of all differences between the plaintiff, on the one hand, and the defendants, on the other.

The testimony shows that in the settlement plaintiff and defendants were repre‘sented by counsel and that every item of the property, even a monkey wrench was mentioned, and that a final agreement was reached as to what property should be removed by plaintiff at the.end of the lease and what should be left by him on the property.

We have noted that the contract makes no mention of the Delco lighting plant which plaintiff claims now the right to remove. It seems to us reasonable to assume that the reason for not mentioning the property now in controversy in the contract was, that the parties considered it a part of the realty and not susceptible of removal as it was attached to a concrete foundation by screws and bolts.

Our conclusion on this point is strengthened by the testimony of H. P. Boykin and R. E. Boykin, two of the defendants, to the effect that after a full discussion of the various items which might be removed by plaintiff and those which were to be left by him on the property at the termination of the lease, H. P. Boykin asked about the Delco lighting plant and someone stated that it was included in the sale, and nothing more was said about it. They say these remarks were made in the presence and hearing of the plaintiff who said nothing. However, this testimony, given by his two brothers, was disputed. by plaintiff.

It is inconceivable to us that the parties, after going into such minute detail as to what plaintiff was permitted to remove and what he should leave on the premises would overlook the Delco lighting plant, worth $350.00, if it was ever considered otherwise than as a part of the realty, and included in the sale from plaintiff to defendants. It is true, as pointed out by counsel for plaintiff, that in the deed from plaintiff to defendants there is a, clause reading:

“Also all of the personal and movable property of every kind, character, nature and description belonging to the said J. W. Boykin and the said Mrs. Georgia L. Boy-kin, deceased, either or both of them, at the time of their respective deaths.”

This Delco lighting system, which was attached to the realty as before stated, we think was not considered personal and movable property by these parties at the time of the sale.

Counsel for plaintiff says, however, that the clause With reference to the personal and movable property shows that the intent of the vendor was to sell and that of the vendees to purchase only his interest in the property belonging to the succession and not that which belonged to the vendor individually, separately, and apart therefrom.

We note in the deed that the reference to the personal and movable property belonging to the said J. W. Boykin and Mrs. Georgia L. Boykin, deceased, is in a separate sentence which follows the description of the real estate. There is not in the deed a similar clause or sentence with reference to the real estate. The deed reciting that the vendor sells his Undivided one-fifth interest in and to the real estate, describing it, generally known as the Boykin Home Place, with a subsequent clause that it is the intention to include in the above description the property owned by Mrs. Georgia L. Boykin, deceased, at the time of her death and upon which she resided, whether the same is accurately described or not. Following the description of the real estate is found this clause:

“* * * together with all the improvements situated upon all of the said herein-above described property, consisting of dwelling, gin house and machinery, store building, barns, cabins and all other improvements. * * *”

Construing this deed and the lease contract entered into by the parties together, we are satisfied that the parties considered that the Delco lighting plant, which was attached to the real estate and in reality a part of the dwelling, as an “improvement”; otherwise it would have been mentioned, in either the deed or the lease, the latter, by its specific terms, being a full and complete settlement between the parties and going into minute detail as to what should and what should not be removed from the property.

Then, too, the preponderance of the testimony is to the effect that the Delco lighting plant was mentioned by one of the parties in the presence of the plaintiff who did not challenge the statement that it was included in the sale.

Counsel for plaintiff says that even if it be conceded that the sale did include the Delco plant, plaintiff conveyed only an undivided one-fifth interest and that he still owns an undivided four-fifths interest therein; but, as stated, we think it was considered as part of the realty owned by the successions and went with the land as other improvements did.

The Delco lighting system was placed on the property by plaintiff and could unquestionably have been removed therefrom by him had he seen fit to do so; but the contract and the testimony convince us that it was considered a part of the realty belonging to the successions and that plaintiff intended that it should be included in the sale.

Referring to the lease contract, which, in addition to being a lease contract was a complete and minute settlement between the parties, counsel for plaintiff in brief say it is very plain that the parties intended to make a complete contract as to just what should be left or removed by plaintiff. If they contemplated that plaintiff should leave any of his own individual property, it sur.ely should have been included in the list of property to be left by him at the terminaton of the lease. When this property cannot be included in that to be left in the place then defendants surely cannot demand that it be left.

That contract, like a two-edged sword, cuts both ways. If plaintiff invokes it in his behalf, the defendants may also invoke it against him. It is true it stipulated, item by item, what should be left on the premises at the termination of the lease and the Delco plant was not mentioned. But it also sets out, item by item, what property plaintiff might remove, and in the list this property is not mentioned.

In view of the fact that the sale included all improvements on the real estate, and the lighting plant was an improvement, it is easy to understand why defendants did not deem it necessary to mention it in the contract. On the other hand, if plaintiff did not intend that it be considered as an improvement on the property and had intended to remove it, we can see no reason why he should not have had it included in the list of the property which he might remove at the end of the lease.

Again, counsel call our attention to the clause in the lease providing that plaintiff should be permitted to remove his personal effects from the property, and they say that “personal effects” includes property in contest. Even if it be conceded as contended by counsel, that the lighting plant may be termed “personal effects” or “personal property”, the clause in the contract which plaintiff invokes in his favor is against him; because, after describing in detail, item by item, what property plaintiff should be permitted to remove at the termination of the lease, which list does not include the property in contest, there follows this sentence;

“All merchandise in the store and all of the personal effects belonging .to the said party of the second part' in the residence on the said property.”

The Deleo plant" is not in the residence but is “near the main residence”.

There is some wire and other fixtures in the residence, but plaintiff’s counsel concede that he has no right to remove what is attached to the building and is not making any claim for those fixtures.

The contract does not mention personal effects generally but specifically refers to such property “in the residence”, which unquestionably means plaintiff’s wearing apparel, jewelry, etc.

The judge of the lower court held that plaintiff is not entitled to remove said property.and we think his judgment is correct and it is therefore affirmed with costs.