author: LECHE, J. ELLIOTT, X,

text:
    No. 408
    First Circuit
    GAINES v. GULF COAST TOWING CO., INC.
    (March 6, 1929. Opinion and Decree.)
    Morgan and Simmons, of Covington, attorneys for plaintiff, appellee.
    Miller and Heintz, of Covington, attorneys for defendant, appellant.
    ELLIOTT, J., dissents for written reasons.
   LECHE, J.

Plaintiff is the widow of Milton Gaines and she sues under the Employers’ Liability Law of this State for compensation which she claims has accrued to her as the result of the death of her husband.

'Gaines was employed by defendant and was actually performing duties as captain of a barge which was being used for carrying and driving piles in Lake Pontchartrain, when he fell overboard and was drowned on February 28, 1927.

The main defense is based upon two grounds, viz: (1) That the Court is without jurisdiction for the reason that Gaines’ employment was of a maritime nature, and exclusively within the jurisdiction of the United States Admiralty Courts; and (2) that even if the State Court had jurisdiction, the cause of action is preempted under the terms of the Employers’ Liability Act, because her present suit was not filed before July 10, 1928, more than one year after the death of her husband.

(1) Plaintiff depends for authority as vesting jurisdiction in State courts in the enforcement of the rights and remedies of the State Employers’ Liability. Act for compensation to employees injured or killed while engaged in maritime occupations, upon the amendment to the United States Judicial Code adopted by Congress and approved October 6, 1917. According to Article 3, Section 2, paragraph 1, of the Constitution of the United States, its judicial power extends to all cases of admiralty and maritime jurisdiction and by the Judicial Code of the United States, Act of Congress of March 3, 19.11, Section 24, paragraph 3, (36 Stat. 1091), the District Courts of the United States are vested with exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. The amendment adopted by Congress and approved October 6, 1917, (40 Stat. 395, Sec. 1), had the effect of saving to suitors the rights and remedies under the workmen’s compensation law of any State. It was by authority of that amendment that the decision was rendered by our Supreme Court in the case of Yeasey vs. Peters, 142 La. 1012, 77 So. 948. But it appears that this amendment to the Judicial Code was declared unconstitutional by the United States Supreme Court in Knickerbocker Ice Co. vs. Stewart, 253. U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145. See Lawson vs. New York & P. R. S. S. Co., 148 La. 290, 86 So. 815. So that under this condition of the law, there is no doubt that a State court has no right or power to extend the rights and remedies of the State Employers’ Liability Law to persons injured, or to the dependents of such persons when killed while in the performance of maritime occupations.

Plaintiff does not concede that her husband was drowned while he was engaged in a maritime occupation. This is a question of fact which cannot reasonably be solved except on the theory that Gaines was so employed at the time of his death. Both the allegations of plaintiff’s petition and the evidence are to the effect that he was captain of a barge which navigated Lake Pontchartrain, that said barge was used to carry piles and that the barge was being used in navigation at the time Gaines was thrown or fell overboard and was drowned. We are clearly of the opinion that his employment by the Gulf Coast Towing Company and his occupation were of a maritime nature. We are therefore also of the opinion that the District Court of this State sitting in and for the Parish of St. Tammany, is without jurisdiction over the subject matter of this suit.

For these reasons it is unnecessary to pass upon the other defense, and it is now ordered that the judgment on appeal be avoided and reversed and plaintiff’s suit is dismissed.

ELLIOTT, X,

dissenting. The decedent, Milton Gaines, was employed by the Gulf Coast Towing Company in carrying piling from the north shore of Lake Pontchartrain to the woi’kmen employed in constructing across it the Watson-Williams bridge.

A witness speaks of him as captain of the barge, but if he had any crew the evidence does not show it. In fact it cannot be said from the evidence that there was anybody employed on the barge-except him.

The piling was conveyed from the north shore of the Lake to the place where the work of construction was proceeding, by means of a barge which was pulled out from the shore to the place in the Lake where the piling was needed, by a tug, and when unloaded was ¡pulled back.

The decedent was employed on the barge and was on it in the navigable waters of the Lake about two miles from shore, where he either fell or was knocked from it into the Lake, and was drowned.

In the case of Martin vs. West, 222 U. S. 191, 32 S. Ct. 42, 56 L. Ed. 159, 36 L. R. A. (N. S.) 592, it was said:

“As the bridge was essentially a land structure maintained and used as an aid to commerce on land, its locality and character were such, that the tort was non maritime.”

This bridge is a permanent local structure not in furtherance of navigation nor of commerce on the sea, nor on the navigable waters of the State, but was being built exclusively for the purpose of travel and commerce on land.

The work of building this bridge was therefore in my opinion not maritime in nature, and the work in which the decedent was employed was not maritime work; therefore the State court in the Parish of St. Tammany had jurisdiction. See in addition Grant-Smith-Porter Ship Co. vs. Rhode, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008; Thomas vs. The Francis McDonald, 254 U. S. 242, 41 S. Ct. 65, 65 L. Ed. 245; Industrial Commission vs. Nordenholdt, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013; Miller Underwriters vs. Braud, etc., 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470; Benedicts Admiralty, Sec. 126, p. 101.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 420
    First Circuit
    NOYES v. COX
    (February 13, 1929. Opinion and Decree.)
    (March 6, 1929. Rehearing Refused.)

      J. H. Inman, of Ponchatoula, and Purser and Magruder of Amite, attorneys for plaintiff, appellee.
    Reid and Blache, of Hammond, attorneys for defendant, appellant.
   LECHE, J.

Defendant at the time the event which gave rise to this litigation took place, was operating a garage and filling station on the highway about one mile north of the town of Amite. He was local sales agent for Pontiac automobiles, and furnished free service for ordinary repairs and adjustments, for a period of ninety days beginning on the day that he might sell each Pontiac automobile. The plaintiff had purchased from defendant one of these automobiles and within the free service period, sent it to defendant’s garage for service such as was contemplated in her purchase agreement.

While the automobile was in the apparent custody and possession of the garage owner, it was taken out by a young man who was an assistant mechanic in the garage, without the knowledge or sanction of plaintiff, and the next morning the plaintiff’s automobile was found completely wrecked at a considerable distance from defendant’s garage, with the body of the dead assistant mechanic lying among the debris.

Plaintiff then brought the present suit to , recover the value of her automobile, and the defense is that the acts of the young man assistant mechanic were unauthorized by defendant, and that the assistant mechanic was acting as agent of plaintiff and not as agent of the defendant.

The District Court rendered judgment in favor of plaintiff as prayed for and defendant has appealed.

The facts are that B. K. Bankston, a son of Mrs. Noyes, the plaintiff, went out in his mother’s automobile on a Sunday, on social business. The automobile did not operate well, so that he managed to drive to defendant’s garage to ascertain the trouble and have it removed, the work to be done under the free service- obligation which defendant had assumed when he sold the automobile to plaintiff. When Bankston reached the garage he found it open, saw several persons about the place, including defendant’s two mechanics, who were servicing and working on other cars. The younger mechanic named Sammy Kent, came out and asked Bankston what was the trouble with the Pontiac. After being told, Kent suggested that they drive a short distance that he might discover the defect. Kent then entered the automojbile and after driving a short distance took out the carburetor and cleaned it. This happened at about 9 o’clock in the morning. Bankston after making an urgent short trip to bring his brother home, came back to the garage about eleven o’clock -at the request of Kent, who again undertook to remedy the mechanical defect which had developed about the motor. He worked unsuccessfully until past twelve o’clock, when he drove Bankston in the automobile to his mother’s home and returned with the automobile to the garage. Bankston did not again see the automobile until one o’clock the next morning after the wreck, and after the death of Kent, which must have occurred during the night.

All this took place on a Sunday and defendant takes the position that his garage was never operated on a Sunday, that it was open only during six days in the week. He says that Sammy Kent was only employed for six week days and contends that Kent’s actions on that fatal Sunday were beyond the scope of his employment and disclaims responsibility for their resultant effect. Aderhold, the chief mechanic in defendant’s garage, admits that he and Sammy Kent were at work in the garage _ on that Sunday, but claims that they were working on their own private automobiles and not for defendant.

The evidence is convincing that defendant’s garage was open on the Sunday when Bankston drove to it in his mother’s auto-’ mobile, that the two mechanics were servicing automobiles and that there were other persons around the place. Plaintiff’s son did not know that defendant kept his garage closed on Sundays, hut on the contrary was induced by what he saw and by the conduct of Kent, to believe that it was being actually operated, and defendant is equitably estopped from denying that fact.

It was defendant’s duty, if he wished to keep his garage closed on Sundays and to do no business on that day, to see that his wishes were carried out and not permit innocent persons to be induced by the manner in which the place was conducted to believe otherwise.

The judgment of the District Court is in our opinion, in accordance with the law and the evidence in the record and for that reason it is affirmed.


author: REYNOLDS, J.

text:
    No. 3480
    Second Circuit
    KING v. EMMONS
    (March 12, 1929. Opinion and Decree.)
    T. H. McGregor, of Rayville, and J. G. Gibbs, of Shreveport, attorneys for plaintiff, appellant.
    R. A. Fraser, of Many, attorney for defendant, appellee.
   STATEMENT OP THE CASE.

REYNOLDS, J.

By this action the plaintiff, A. D. King, sought to obtain judgment against the defendant, W. I. Emmons, for $1075.65 with legal interest thereon from judicial demand for damage alleged to have been done to an automobile owned by him in a collision with a motor-truck and trailer owned by defendant, and which collision, plaintiff alleged, was caused by the negligence of defendant’s servant. The defendant denied the negligence alleged and alleged that the collision was caused solely by the negligence of the plaintiff.

On these issues the case was tried and there was judgment rejecting the plaintiff’s demands and dismissing his suit and he appealed.

OPINION.

Plaintiff was operating an automobile on the Jefferson Highway on his way from Keatchie to Shreveport at about fifteen minutes after eight o’clock in the evening on the 12th day of July, 1927, and ran the automobile into a motor-truck and trailer parked on the right hand side of the road in which plaintiff’s car was moving, the motor-truck and trailer belonged to defendant and were operated by a servant of his. They were loaded with three pieces of heavy timber, one six by twelve inches in diameter and twenty-six feet long, and two either ten by twelve inches or ten by fourteen inches in diameter and fourteen feet long, and a joint of eight inch iron pipe and an iron apparatus called a swivel. The pieces of timber extended out beyond the floor of the trailer ten feet. The motor-truck and trailer had been stopped on the right hand side of the road for the purpose of making some minor repair and had no tail light. Plaintiff’s automobile struck the protruding timbers. At the time of the collision plaintiff’s car was moving at a speed of from eighteen to twenty miles an hour. At the place of the collision the highway is nineteen feet wide and the center of it is hard-surfaced or paved and on each side of the pavement or hard-surface is from six to eight inches of gravelled surface. The weather was good and the atmosphere clear and there were no pedestrians or vehicles moving in the opposite direction to plaintiff on the other or left hand side of the road.

Plaintiff alleges that he came “suddenly and unexpectedly upon the motor truck and trailer and load of timbers.”

The highway at the point of collision and for a half mile back in the direction from which plaintiff had come was straight and level.

Plaintiff was asked:

“I believe you allege in your petition that you did not see the truck until you struck the timbers?”

And he answered:

“Well, until I was just right on the timbers before I saw it.”

He also testified that his automobile was in good shape and the headlights on it were all right.

Asked—

“Is it not a fact that your car and the glass were muddy, sprayed with water and mud?”

He replied:

“Well, I don’t know that it was.”

Plaintiff, in brief, says:

“At the outset, we wish to say that we recognize the fact that even though the driver of defendant’s truck and trailer was unlawfully parked on the side of the highway, and plaintiff ought to have seen the obstruction and ought to have stopped before the collision, after all the testimony on both sides has been considered, then it was contributory negligence on the part of the plaintiff, and he should not recover.”

We accept as correct this statement of the law applicable to the case, and it only remains to be determined whether the plaintiff saw or could and should have seen the motor-truck and trailer in time to avoid colliding with them.

Plaintiff’s own testimony shows that the headlights of his automobile were in good order and illuminated the roadway for a distance of fifty feet ahead of his car. According to defendant’s evidence the headlights light up the roadway from fifty to seventy-five yards ahead of the car. The timbers extended ten feet beyond the end of the floor of the trailer. Even if the headlights lighted up the roadway for only fifty feet ahead of the car, had plaintiff been maintaining a proper lookout ahead of him he necessarily would have seen the trailer when forty feet from the rear end of. the timbers and could have stopped his car or swerved it to his left before it reached the end of the timbers. There was no pedestrian or vehicle on the road to his left either coming behind him or coming toward him which would have prevented his passing the motor-car and trailer on his left hand side. And that plaintiff could have done this was shown by the testimony of Alonzo Moore who, testified that he was travelling toward Shreveport in a Ford roadster and passed the packed motor-truck and trailer at a speed of twenty-five miles an hour and that he had no difficulty in seeing the motor-truck and trailer parked on the side of the road and passed them by turning his car to his left.

We are unable to reconcile plaintiff’s statement that “well, until I was just right on the timbers before I saw it’’ with any theory that he was properly observing the condition of the roadway ahead of him.

Our learned brother of the lower court was of the opinion, from the physical facts, the evidence showed existed immediately after the collision, that plaintiff, was driving his car at a reckless speed; but whether that be so or not, and accepting his own statement that his car was moving at from eighteen to twenty miles an hour, we are of opinion that he could and should have seen the motor-truck and trailer in time to have stopped his car before colliding with it or .have passed it to his left and that he was negligent in not doing so.

Plaintiff contends that the facts of the case take it out of the rule of law laid down by him and quoted by us above, but after carefully reading the record we are unable to see any distinction between this and other cases of its-general class. And he also contends that the timbers extending beyond the end of the floor of the trailer were a menace to persons in automobiles coming up on them on the same side of the road. We think, though, that the ends of the timbers were sufficiently large to have been visible to plaintiff in ample time for him to have avoided the collision had he been properly observing the road ahead of his car.

And plaintiff points out the danger to travellers on the highway of such obstructions as that under consideration; and while agreeing with him that they are a menace to safety, we are also of the opinion that the driving of motor vehicles on public highways without their operators maintaining proper watchfulness of the road ahead of them is no less a menace • to the safety of the public.

We find no error in the judgment appealed from, and accordingly it is affirmed.


author: WEBB, J.

text:
    No. 2894
    Second Circuit
    ROBBINS v. W. W. PAGE & SON
    (March 12, 1929. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, Tobe L. Robbins, applied for and obtained a temporary restraining order without bond against W. W. Page & Son and the sheriff of Natchitoches Parish, restraining them from selling certain real estate which had been seized in suit No. 18534, W. W. Page & Son versus T. L. Robbins, on the docket of the District Court of Natchitoches Parish, which is alleged to have been an action to foreclose a mortgage via executiva, and on trial of the rule the restraining order having been recalled, plaintiff appeals.

Plaintiff in his application for the restraining order alleged that the notes, secured by mortgage, under which the mortgaged property had been seized' in suit No. 18534, were given in settlement of an open account, which account was erroneous in that plaintiff had not been given credit for payments made by him and that usurious interest had been charged by Page & Son and that he, Robbins, had signed the note in error induced by fraud practiced upon him by Page & Son.

There has not been any appearance by appellant in this court, and from our review of the record we do not find that plaintiff sustained his allegations, either as to the charge that there should have been other credits than as shown on the account, or that there were any usurious interest charges.

The evidence shows that Page & Son had furnished .Robbins with supplies with the understanding that the price would be fixed at ten per cent above the cash prices, and the account filed in evidence showing the cash price, and the credit price fixed at an advance of ten per cent, this appears to be the basis of the claim that usurious interest was charged; however, it is well settled

“that usury cannot be predicated upon the fact that property is sold on credit at an advance in price over what would be charged in case of a cash sale so long as it appears that the price charged is in fact fixed for the purchase of goods on credit with no intention or purpose of defeating the usury law, although the difference between the cash price and the credit price if considered as interest amounts to more than the legal rate.” (Commercial Credit Co. vs. Tarwater, 215 Ala. 123, 110 So. 39, 48 A. L. R. 1437 and note, page 1442; R. C. L., vol. 27, page 214.)

The evidence shows the cash price to which was added ten per cent was the usual cash . price fixed by Page & Son on the merchandise sold, and there is not any evidence indicating that the agreement of the parties as to the manner in which the prices were charged Robbins was for the purpose of evading the usury law.

The judgment appealed from is therefore affirmed.


text:
    No. 3416
    Second Circuit
    GRIGSBY v. THE TEXAS COMPANY
    (March 12, 1929. Opinion and Decree.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Pugh, Grimmet and Boatner, of Shreveport, and Spearing and Mabry, of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS APPEAL.

REYNOLDS, J.

Defendant, appellee, obtained from this court an order for plaintiff, appellant, to show cause why his appeal should not be dismissed, on the ground that he had accepted payment of the judgment appealed from and thereby acquiesced in it.

Plaintiff, appellant, filed an exception that no right or cause of action for dismissal was alleged, and, reserving his rights under the exception, should it he overruled, he answered, alleging:

“He avers that he has not voluntarily executed the said judgment of the lower court nor any part thereof.
“That he appealed from the fifty weeks’ compensation awarded him by the lower court; that the defendant insisted on paying that amount and did not appeal from the judgment; and. because of the fact that the defendant wanted to pay and acquiesce in the judgment to that extent, plaintiff and appellant permitted said payments to be made, from week to week, in no manner intending to abandon his appeal or to waive his right thereto, but expressly writing and telling the attorneys for the defendant that he would not accept the said fifty weeks as full payment but would only give them credit for same.
“That there was no contest at all between them as to fifty weeks at $20.00 per week being due plaintiff, and no effort was being made by defendant to avoid (paying) same, but it was insisting that it be permitted to pay the amount it acknowledged it owed, and plaintiff took same because it did owe that and more.
“That defendant did not pay the costs in this case, nor attempt to pay same, and yet owes same in full, including experts’ fees.”

The motion to dismiss the appeal is supported by affidavit by one of the attorneys for defendant, appellee—

“That he is one of the attorneys for The Texas Compány in that certain suit entitled, Ben Grigsby vs. The Texas Company, No.....— on appeal in the second circuit Court of Appeal, state of Louisiana, and that he knows that Julius T. Long is attorney for Ben Grigsby, plaintiff in the above entitled and numbered suit, and that the said Julius T. Long, for and on behalf of the said Ben Grigsby, accepted, without any condition or reservation, payment of the full sum of the judgment of the lower court in the aforementioned suit, being the amount of $965.75, and that the said payment was expressly made by The Texas Company for the purpose of complying with the said judgment of the lower court and in order to discharge the same, and that Julius T. Long was» informed of the fact that it was the intention of the company to avail themselves of such acceptance for obtaining a dismissal of this appeal.”

It thus appears that an issue of fact is presented for decision, and as this court is without original jurisdiction in the premises, the case must be remanded to the District Court for trial and judgment on the question.

“Under the Code of Practice, Article 567, when the issue of execution or acquiescence vel non is raised in the appellate court, the case will be remanded for further evidence of execution or acquiescence.” McCain vs. Nennett, 3 La. App. 397.

It is therefore ordered that this case be remanded to the District Court for the purpose of determining whether plaintiff, appellant, acquiesced in the judgment appealed from.


text:
    No. 3427
    Second Circuit
    BRENARD MFG. CO. v. CLAWSON MERCANTILE CO., INC.
    (March 12, 1929. Opinion and Decree.)
    Dawkins and Dawkins, of Monroe, attorneys for plaintiff, appellant.
    Madison and Madison, of Bastrop, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Brenard Manufacturing Company, instituted this action to recover judgment against the Clawson Mercantile Company, Incorporated, on certain notes drawn by defendant, payable to the order of plaintiff, and on trial judgment being rendered rejecting plaintiff’s demands, it appeals.

Appellant has not made any appearance here, and the cause involving the construction of an ambiguous contract, we assume that .the plaintiff has acquiesced in the construction of the contract by the court, and has abandoned its appeal. (Guy vs. McDuffie, 123 La. 641, 49 So. 222; Quilter vs. Kearns, 135 La. 807, 66 So. 229) and the judgment is affirmed.


author: WfESTERFIELD, J.

text:
    No. 11,556
    Orleans
    IRWIN v. SIBLEY
    (January 21, 1929. Opinion and Decree.)
    Ernest J. Robin, of New Orleans, attorney for plaintiff, appellant.
    B. Coniffe and F. Williams, of New Orleans, attorneys fbr defendant, appellee.
   WfESTERFIELD, J.

This is a suit for damages resulting from a collision of automobiles. The case was tried by a jury and resulted in a verdict for defendant.

The accident occurred on the highway .between the City of New Orleans and the City of Baton Rouge, at a point just below Harahan. Plaintiff was ¶ driving towards New Orleans and defendant towards Baton Rouge. Just before the collision, defendant, who was driving his own car, passed several cars going in the same direction, the occupants of which testified that he was traveling at a high rate of speed. In order to pass these cars it was necessary for him to drive from the right of the road to the left, because the cars which he passed were where they should have been, on the right side of the road. The accident, in our judgment, was due to the fact that defendant was unable to get back in his proper place on the road after passing the otlfer automobiles in time to avoid colliding with plaintiff’s car. In other words, he was traveling so much faster than the cars in front of him that he had to either slacken his speed, or pass the cars, as he did, on their left. In passing them, he either did not see plaintiff’s car in time, or if he saw it, miscalculated the time necessary to pass it. Under the circumstances there was no way of plaintiff avoiding the collision, for defendant was directly in his path.

After the accident a bottle half full of whiskey was found in defendant’s car. Defendant admitted that the whiskey was there but said that it was the property of a friend of his, who was riding with him. This friend, he says, was drunk, but that he, defendant, had not had a drink that day. A number of witnesses testified that both defendant and his friend were drunk and that both offered whiskey to those who gathered about the scene of the accident. Whether defendant was under the influence of liquor at the time of the accident or not is unnecessary for us to determine, because he was undobutedly driving very fast and with the same indifference to consequences which over-indulgence in alcoholic stimulants is said to induce in drivers of automobiles. He “stepped on the gas,” as the slang phrase goes, and sped on his course, passing every vehicle heedless of oncoming traffic. We believe that he alone is responsible for the accident.

We have reached this conclusion reluctantly because it is contrary to the findings of the jury, whose verdict was in favor of defendant, however, it appears to us that their conclusion is manifestly wrong and it is our duty, under the circumstances to say so.

The plaintiff suffered some physical injury, but no physician has testified, and the proof, in that regard, is very meager and unsatisfactory. His automobile was badly damaged—so much so that it was sold after the accident for $100.00. He claims that the ear was worth a thousand dollars, but he admits having paid only $400.00 for it, and he had used it for some time prior to the accident, consequently it had depreciated to some extent. No mechanic or expert was ¡produced to prove the extent of the damage to the automobile. Plaintiff also lost some wages which he says amounts to $100.00. On' the whole, we think $500.00 a proper sum to award plaintiff.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff, Joseph A. Irwin, and against the defendant, William H. Sibley, in the full sum of $500.00, with interest thereon at 5 per cent per annum from judicial demand until paid.


text:
    No. 3412
    Second Circuit
    JONES ET AL. v. GLEASON
    (November 8, 1928. Opinion and Decree.)
    Dimick and Hamilton, of Shreveport, attorneys for plaintiffs, appellees.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   SUPPLEMENTAL ORDER.

The appeal in this case was transferred to the Supreme Court on November 8, 1928, under Act No. 19 of 1912.

Our attention has been called to the fact that no time was fixed within which the record should be lodged in the Supreme Court, and counsel' for plaintiffs, appellees, by formal motion, asks that we now, by supplemental order, fix such time.

It is now ordered and decreed that the defendant, appellant, file the record on appeal in the Honorable Supreme Court within thirty days from this date, and that upon his failure to do so the appeal be dismissed.


author: WEBB, . J.

text:
    No. 3460
    Second Circuit
    GREEN ET AL. v. BARNETT ET AL.
    (March 12, 1929. Opinion and Decree.)
    Herndon and Herndon, of Shreveport, attorneys for plaintiffs, appellees.
    Bryan E. Bush, of Shreveport, attorney for defendants, appellants.
   WEBB, . J.

Plaintiffs, Sam Green and Isabella Green Brown, residents of this state, and Zack Green, Stewart Green and Barney Green, non-residents, and Dr. J. B. Johns, a resident of DeSoto Parish, were owners in indivisión of a small tract of land in the Parish of DeSoto, and, on October 15, 1923, Johns instituted suit against his co-owners for a partition of the property by licitation, service of which was obtained against the non-resident owners through attorneys appointed by the court, but the record of that suit does not show that service was made on Sam Green and Isabella Green Brown. However, on September 19, 1925, an answer was filed on behalf of all defendants by Mr. Edward Barnett, attorney at law, and, on the same day, the cause was submitted on an agreed statement of facts, in which it was admitted that the property was not divisible in kind, and judgment was rendered on the same date in favor of Johns and against defendants, ordering a partition of the property by licitation, arid following, on October 31, 1925, after due proceedings the property was sold at public auction to Barnett, who mortgaged it on December 1, 1925, to Dr. O. A. Eddy, and the note representing the amount of the mortgage debt not being paid, Eddy proceeded to foreclose, via executiva, and after due proceedings the property was sold at public auction to Eddy.

The present suit by the above named, plaintiffs against J. B. Johns, Edward Barnett and O. A. Eddy, was filed in January, 1928, and plaintiffs, alleging ownership of an undivided five-sixths interest in the property, set out the various proceedings above noted and allege that Sam Green and Isabella Green Brown were not cited and that a default was not entered against Zack ’Green, Stewart Green and Barney Green, in the partition proceedings, and that none of them had made any appearance in said suit, and that Edward Barnett was not authorized to appear and file an answer for them, and they ask that the judgment rendered in the partition suit be annulled and all subsequent proceedings, as above noted, be avoided, and that they have judgment decreeing them to be owners of an undivided five-sixths interest in the property.

Defendants filed various exceptions of misjoinder, no cause of action and estoppel, which were overruled or referred to the merits, over defendants’ objection, and under reservation of their rights in the exceptions, they answered, pleading in substance a general denial, and on trial judgment being rendered in favor of plaintiffs and against all of the defendants, annulling and avoiding the judgment rendered in the partition proceedings, as well as the mortgage given by Barnett, and decreeing plaintiffs ' to be the owners of an undivided five-sixths interest in the property, defendants appealed, and plaintiffs have answered the appeal, praying that they be allowed damages for a frivolous appeal.

The plea of misjoinder of parties appears to have been based upon the theory that plaintiffs’ suit should be considered solely as an action to annul a judgment, and that Barnett and Eddy not having been parties to the action in which the judgment had been rendered, wore improperly joined; and the basis of the exception of no cause of action was that Barnett, an attorney at law, and an officer of the court, was presumed to have been authorized to appear for the parties whom he professed to represent, and plaintiffs’ petition being verified only by their attorney, evidence could not be offered in support of the allegation that Barnett was not authorized to represent the plaintiffs in the partition suit; and the basis of the plea of estoppel is that Sam Green, Isabella Green Brown and Zack Green had knowledge of the sale, and that Zack had. verified the answer filed by Barnett in the partition proceedings.

Counsel have not discussed the various exceptions at length, and our conclusion being that plaintiffs’ suit being more than merely an action of nullity of judgment, and it having been held that the failure of one to personally verify the petition in which it is alleged that the attorney professing to represent him was unauthorized was not a condition precedent to the introduction of evidence in support of the allegation (Bender vs. McDowell, 46 La. Ann. 396, 15 So. 21), we are of the opinion that the exceptions of misjoinder and no cause of action were properly overruled; and as the facts alleged in support of the plea of estoppel, if true, tend to show that the attorney was authorized to appear for defendants (plaintiffs here) in the partition suit, we think that the pleas were properly referred to the merits.

On trial Mr. Barnett stated that he filed the answer in the partition proceedings at the request of one John Hall (since deceased) and Zack Green, one of the defendants in the partition suit and one of the plaintiffs here; and while the evidence, which shows that Zack Green verified the answer filed by Barnett and that he was advised of the date the sale was to be made in the partition proceedings, and establishes, insofar as Zack Green is concerned, that he was not in position to question the authority of the attorney, the evidence is not so clear as to the position of Stewart Green, Barney Green and Sam Green, as neither Stewart Green nor Barney Green was called as a witness, and there were filed in evidence letters written by them to the attorneys appointed by the court, in which they stated that they had employed other attorneys, and O. A. Eddy states that Sam Green had told him that Barnett had been employed, and although Sam testified that he had not employed any attorney in the partition proceedings, yet considering the presumption that the attorney is presumed to have authority to represent the parties for whom he professes to appear in proceedings before the court, we are of the opinion that the evidence fails to establish Mr. Barnett was not authorized to represent Stewart Green, Barney Green and Sam Green.

However, Isabella Green Brown states that she had never heard of the partition suit until after she learned that Eddy claimed the property, and there is not any evidence to the contrary, and if she did not know of the suit it does not appear possible that she could have authorized the attorney to represent her (Marvel vs. Manouvrier, 14 La. Ann. 3, 74 Am. Dec. 424) and as she was a necessary party to the partition suit (Article 1329, Civil Code) the judgment rendered therein was null and the sale made thereunder was void not only as to Isabella Green Brown but also as to Sam Green, Stewart Green, Barney Green and Zack Green, conceding that Sam, Stewart, Barney and Zack were represented by the attorney, as the partition cannot stand for one and be annulled for another (Article 1412, C. C.; Smith vs. Smith, 131 La. 970, 60 So. 634; Crayton vs. Waters, 146 La. 238, 83 So. 540; Levy vs. Simon, 152 La. 857, 94 So. 421; Scaife vs. Jones, 156 La. 5, 99 So. 890; Latham vs. Glasscock, 160 La. 1090, 108 So. 100).

The plea of estoppel was therefore properly overruled and judgment rendered annulling the judgment in the partition proceedings, and the sale made thereunder and recognizing plaintiffs as the owners of an undivided five-sixths of the property, and the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,351
    Orleans
    HAMBURGER v. KATZ ET AL.
    (February 11, 1928. Opinion and Decree.)
    Weiss, Yarrut and Stich, of New Orleans, attorneys for plaintiff, appellant.
    Spearing & Mabry, of New Orleans, attorneys 'for Harry Katz, and John May, of New Orleans, attorney for Henry Hirsch and J. H. Schwarz, defendants, appellees.
   WESTERFIELD, J.

Plaintiff sues for damages for the death of his wife as a result of an automobile accident alleged to have been due to the concurrent negligence of his son-in-law, Harry Katz, and one Henry Hirsch. He also joins as co-defendants, Mr. and Mrs. J. H. Schwarz, as owners of the automobile driven by Hirsch, alleging that the car was being operated ,in the interest of the owner. Plaintiff itemizes his damages as follows:

Physical and mental pain suffered
by his wife prior to her death,$10,000.00 Loss of his wife’s companionship 5,000.00
Mental pain and suffering.___________ 5,000.00
Funeral and medical expenses 450.00
$20,450.00

There was judgment in favor of all defendants, dismissing plaintiff’s suit.

As to the defendants, Mr. and Mrs. Schwarz, it having been established on the trial of the case that the defendant, Hirsch, was operating the Schwarz car on a mission of his own, they are conceded to be without liability in the premises.

The accident from which this suit resulted occurred Sunday, May 1, 1927, at about 6:30 p. m., on a public highway of this city known as the Old Spanish Trail, in the Parish of Orleans, at a point about 150 feet from the ferry landing at Chef Menteur. Mrs. Louis Hamburger, plaintiff’s wife, was, at the time, a passenger and guest in the automobile of her son-in-law, Harry Katz. She was seated on the back seat of the automobile with two other members of her family, the wife of the defendant, Katz, and his daughter, her granddaughter. When the car reached the point in the road referred to, it suddenly swerved to the right, rolled down the embankment of the highway, and turned over several times before coming to rest. When the occupants of the car were removed, it was discovered that Mrs. Hamburger had suffered serious injuries, as a result of which she died a few days later. The negligence imputed to .the defendants, Katz and Hirsch, is stated as follows:

“* * the said defendant Harry Katz being guilty of negligence in operating his automobile at a rate of speed of more than 30 miles per hour, in loose gravel, about two feet from the edge of the steep embankment of the road at that point and in not keeping his automobile under control, and the said Henry Hirsch in attempting to overtake the Katz car while travelling at such a high and dangerous rate of speed, and in approaching the Katz car so dangerously close that it actually struck the Katz car, all of which constituted gross carelessness and want of ordinary care and skill on the part of said defendants in operating their respective automobiles, considering the circumstances and surroundings prevailing at the time and place of the accident.
“That the said Harry Katz and Henry Hirsch in -operating their respective automobiles in the manner aforesaid, violated Sec. 19 of Act 120 of 1921, which regulates the speed and manner of operating motor vehicles on public highways of the State of Louisiana, in that both were operating their automobiles at a rate of speed greater than was reasonable and proper, and by driving so heedlessly and recklessly fast that neither could guide nor control his car while traveling in loose gravel on the edge of a steep embankment.”

As previously stated, this suit is brought by a father-in-law against his son-in-law for the negligent killing of his mother-in-law. Counsel for both defendants, each of whom represents an insurance company which has assumed the liability of the defendants, respectively, emphasize this fact as an effort to mulct the insurance company by “unnatural suit,” as one counsel would have it. ,

It will be conceded that the suit is unusual, but there is nothing particularly “unnatural” in seeking compensation for damages caused by the negligent act of a member of plaintiff’s family when the damages, if allowed, would cost him nothing. Of course, the relationship of the parties does not affect plaintiff’s right to recover if the law and the facts justify it. We would expect to find in a case of this character the testimony of defendant influenced by his relationship to plaintiff, and would be disposed to receive it ,with caution under ordinary conditions, but the defendant, Katz, in this case stoutly maintains his innocence of all fault in connection with the accident, the entire responsibility for which he imputes to the defendant, Hirsch. There is not the least indication in his evidence of any effort to assist the plaintiff in recovering a judgment against himself. Whatever criticism may properly be made of his testimony in other respects, there is certainly no indication of collusion. Consequently no importance is to be attached to the relation existing between the plaintiff and one of the defendants to this suit.

Hirsch, the other defendant, is equally emphatic in his effort to fix the blame for the accident upon Katz. Other witnesses in the case were so ¡partisan as seriously to affect their credibility. The learned judge, a quo, remarked:

“Some of the witnesses in this case departed so far from the truth that the court is unable, even at this time, to state exactly how the accident happened.”

We thoroughly understand the difficulty which the court experienced in weighing the testimony. We confess our own confusion after reading the nearly three hundred typewritten pages making up the record. But out of the cross-fire of contradictory assertion, we have no difficulty in finding that, as to the defendant, Katz, his operation of the automobile he was driving was exceedingly careless and in reckless disregard of the safety of the other occupants of his car, as well as himself. Practically every witness in the case, except Katz, testifies to his excessive speed. The judge below, in his reasons for judgment, found that he was traveling forty or forty-five miles per hour. It appears to us that he was going faster than this, but at any rate, his pace, considering the condition of the road, the surface of which was loose gravel, was inexcusable. Moreover, at the point where the accident happened, the road was constructed upon the crown of an embankment whose sloping sides terminated in a canal on each side of the road, an additional reason for careful driving.

It was the opinion of the court a qua, as expressed in its reasons for judgment that this excessive speed was not the proximate cause of the accident, and that:

“To hold that a defendant is liable for mere speed, in the absence of further explanation, to the mother-in-law. who is a guest in his car is to constitute him an insurer. The Court holds that the burden of proof is on the plaintiff and that he has not shown that the accident was due to the negligence of the defendants. The suit is, therefore, dismissed.”

Much as we respect the views of our learned brother in his appreciation of the law, it is our opinion that the burden of explanation of this accident, insofar as it •may be obscure, rested upon defendant, under the maxim “res iipsa loquitur.” An automobile, properly driven at moderate speed over the public road under the conditions obtaining in this case, would have held the road in the ordinary course of things, and the fact that the automobile driven by Katz catapulted over the embankment and rolled over two or three times before coming to rest at the foot of the embankment, is a circumstance which, in the absence of explanation, gives rise to the presumption of negligence. A prima facie case is made out which can only he overcome by proof exculpating Katz. The proof in the record, as far as it is reliable, is to the contrary. His excessive speed is clearly established from' the mouths of the witnesses, as well as the silent and eloquent evidence afforded by skid-marks on the roadway.

“The doctrine of ‘res ipsa loquitur’ may be applied in actions seeking to recover for injuries due to the operation of automobiles. The facts surrounding and forming part of an automobile accident may be such as to raise the inference that the accident was due to the negligence on the part of the person operating or in control of the automobile.”

Berry on Automobiles, 4th Ed., Sec. 216.

See, also, Hazard vs. Edward, 2 La. App. 514; Mackenzie vs. Oakley, 108 Atl. 771, 94 N. J. Law .66; Masten vs. Cousins, 216 Ill. App. 2.68.

In the case of Mackenzie vs. Oakley, supra, it was held:

“A guest who is invited to occupy a seat in a motorcar, is an invitee to whom the owner owes a duty of care. Where an automobile in which plaintiff was a guest skidded on the highway which defendant owner claimed was made slick because of a sudden shower, it was a question whether defendant’s explanation was sufficient under doctrine of ‘res ipsa loquitur.’ The doctrine of ‘res ipsa loquitur’ applies when an accident happens suddenly and without apparent cause, and yet, from the very fact of its occurrence, an abnormal situation is presented which bespeaks negligence in operation, and under the rule of ‘res ipsa loquitur,’ the defendant is called upon for an explanation to exculpate himself from the legal inference or presumption of negligence arising therefrom.”

As to the defendant, Hirsch, a different rule obtains. It is necessary that plaintiff establish his responsibility affirmatively; in other words, by a preponderance of evidence indicating that he was guilty of negligence which contributed to the accident. We are convinced that Hirsch was endeavoring to pass the Katz automobile, and for that purpose approached the Katz car several times in an effort to do so, but each time the defendant, Katz, became aware of his approach and put on a little more speed, making it impossible for Hirsch, since he had a smaller and less powerful car, to pass him on the road. It is in evidence that the weather was dry and the road dusty and Hirsch admits that he tried to get out of the way of the dust stirred up by the Katz car. This fact, to our minds, is quite clear from the record, and is in accord with the experience of anyone who has often ridden, or driven, upon dusty public roads. However, we are not satisfied that the Hirsch car bumped into the Katz car just before the accident, causing it to run off the road as alleged. There is some evidence to this effect, but to the extent that it is reliable, it is insufficient. The mere fact that Hirsch indulged in occasional bursts of speed in an effort to catch the fast moving Katz car, for the purpose of avoiding the dust, does not, under the circumstances obtaining in this case, justify a finding of negligence rendering him jointly responsible for the result of this accident.

As to the quantum of damages, the deceased was fifty-five years old and had a life expectancy of seventeen years. She had been married to plaintiff for upwards of thirty-five years. According to the testimony of Dr. Louis Levy, and, as seems evident from the nature of the case, she undoubtedly suffered intensely in the interval between the accident and her death some three days later. Plaintiff, of course, suffered a great loss in the death of his wife, with whom he had lived in apparent happiness for so long a period of time. We will not endeavor to separately itemize the allowance of damages in this case, as we prefer to award a lump sum in an amount bearing some appropriate relation to similar awards in other cases, but without any intention of fixing upon a standard. We deem it proper to repeat in this connection what we have heretofore observed: that in awarding damages for physical, mental and moral suffering, we are conscious of our inability to compensate the sufferer, and of the impossibility of standardizing the award. Influenced by these considerations, we have concluded to allow the sum of $6,000.00.

For the reasons assigned, the judgment appealed from, insofar as it dismisses plaintiff’s suit as against the defendant, Harry Katz, is reversed, and it is now ordered that there be judgment in favor of plaintiff, Louis Hamburger, and against the defendant, Harry Katz, in the full sum of $6,000.00, with interest thereon from judicial demand until paid; and in all other respects the judgment appealed from is affirmed, the costs of the lower court to be borne by plaintiff, Hamburger, and of this court, by the defendant, Katz.


text:
    No. 3373
    Second Circuit
    MITCHELL v. HOLOMON ET AL.
    (March 12, 1929. Opinion and Decree.)
    Kennon and Kitchens, of Minden, attorneys for plaintiff, appellant.

      Mclnnis and Campbell, of Minden, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff, Minerva Mitchell, instituted this action against V. R. Holomon and the Bridges-Channel Clothing Company, a commercial partnership, to recover judgment against Holomon for damages alleged to have been sustained as the result of the failure and refusal of Holomon to comply with a contract made with plaintiff, and to recover judgment against Holomon and the Bridges-Channel Clothing Company decreeing the nullity of a certain note and mortgage securing same, which note had been drawn by plaintiff and had passed into the hands of Holomon and thence to Bridges-Channel Clothing Company.

The substance of plaintiff’s contention is that, she had, on December 11, 1925, entered into a contract with Holomon, wherein the latter agreed to erect a dwelling house on a certain lot belonging to plaintiff by the first of the year 1926, for the price of six hundred sixty-five dollars, which was to ■ be paid by plaintiff in installments of thirty dollars per month, beginning after the completion of the building, but that Holomon had obtained from plaintiff one hundred fifteen dollars at the time of the agreement and had fraudulently persuaded her to draw a note for six hundred sixty-five dollars payable to her order, on August 27, 1927, and by her endorsed in blank and secured by a mortgage on the lot on which Holoman had agreed to construct the building, and that Holomon had obtained possession of the note and had negotiated it to the Bridges-Channel Clothing Company which had full knowledge of the transactions between plaintiff and Holomon.

Plaintiff alleged that she had been damaged by the failure of Holomon to construct the building and his fraudulent act in obtaining the note, in the sum of five hundred sixty-two dollars, and she prayed for judgment against Holomon for that amount, and for judgment against Holomon. and the Bridges-Channel Clothing Company decreeing ' the note and mortgage securing same to be null and void.

Both defendants filed exceptions of misjoinder, and the Bridges-Channel Clothing Company excepted that the petition failed to state a cause of action, and the exceptions being overruled, defendants answered under reservation of their rights in the exceptions.

Holomon denied the allegations of plaintiff’s petition as made, and purported to set up the real contract and manner in which he acquired the note, which was that, he had agreed to construct a house for plaintiff at the price of seven hundred eighty dollars, and that plaintiff, in consideration of his obligation to build the house, had delivered to him one hundred fifteen dollars and the note and mortgage described in plaintiff’s petition, with the understanding that she would pay the note in installments of thirty-five dollars per month, and with the understanding that he would negotiate the note and obtain funds to comply with his contract to erect the building for plaintiff; and he further alleged that he constructed the frame of the house, using materials of the value of two hundred seventy-three and 64-100 dollars, and that he should have credit for that amount on any judgment rendered against him; and the Bridges-Channel Clothing Company denied plaintiff’s allegations and alleged that the note had been acquired by it before maturity and in good faith for a valuable consideration, without any knowledge of the transaction, between plaintiff and Holomon, and, on information and belief, it also set up the same explanation of the transaction as between plaintiff and Holomon as alleged by the latter, and further alleged that it was entitled to judgment against plaintiff for the amount of the note together with interest, costs and attorney’s fees, with recognition of the mortgage, and it prayed that plaintiff’s demands be rejected and that it have judgment against plaintiff in reconvention, and, in the alternative, in event the court should hold that it was not a holder of the note in good faith, for judgment against plaintiff for the amount or value of the materials used by Holomon in constructing the frame of the building, with recognition of the mortgage for that amount.

On trial, judgment was rendered in favor of the plaintiff and against Holomon for damages in the amount claimed, and in the further sum of six hundred sixty-five dollars, with interest and attorney’s fees as stipulated in the note transferred by Holomon to the Bridges-Channel Clothing Company, and rejecting plaintiff’s demands as against the Bridges-Channel Clothing Company, from which judgment plaintiff appealed.

Both of the defendants answered the appeal.

Holomon complains of the judgment against him for damages, and of the failure of the court to allow credit for the value of the lumber and other materials used in constructing the frame of the building, and he prays that the judgment for damages be set aside and that the judgment for six hundred sixty-five dollars, or the amount of the note, interest and attorney’s fees, be credited with the value of the materials used in constructing the frame of the building, and, in the alternative, in event the relief first prayed for should not be granted, he prays that the exception of misjoinder filed by him in the lower court be sustained, and further in the alternative, and in event the judgment rejecting plaintiff’s demands to have the note and mortgage annulled should be reversed, that the judgment rendered against him for the amount of the note, interest, etc., be set aside; and the Bridges-Channel Clothing Company complains of the failure of the court to grant it judgment on the reconventional demand, and prays that the judgment be amended in that respect, and, in the alternative, that it be affirmed, and further in the alternative, that the exception of misjoinder filed by it be sustained' and plaintiff’s suit dismissed.

Holomon did not file any brief in this court, and while the Bridges-Channel Clothing Company, in its -brief, urges that the exception of misjoinder should have been sustained and that we should review the ruling on the exceptions, it clearly appears from the answers of defendants to the appeal that the exceptions are urged only in event it should be found, after reviewing the cause, on the merits, that defendants are not entitled to have the judgment amended.

The exception of misjoinder is a dilatory exception, which does not go to the merits, and must be filed in limine litis (C. P., Arts. 332, 333; Farmers’ & Merchants’ Bank vs. Davies, 144 La. 538, 80 So. 713), and even though filed before the answer, such exceptions are waived by voluntarily going to trial on the merits (Cross, Pleading, p. 164, sec. 170), and certainly one could not after voluntarily submitting the cause on its merits, insist on a ruling on a dilatory exception which had been filed, and we are of the opinion that the defendants, having first asked that the cause be reviewed on the merits, waived any right they may have had ,to have the ruling on the dilatory exceptions reviewed.

On the merits, we first consider the cause as between plaintiff and Holomon, and with reference to the complaint of Holomon that he should have been allowed credit for the value of the materials used by him in constructing the frame of the house, and that the evidence did not warrant the judgment against him for damages.

Holomon really does not make any defence to the demands of plaintiff, other than a denial that he had been guilty of any fraud in obtaining the note from plaintiff, and that he should be allowed credit for the value of the materials alleged to have been used in constructing the frame.

It is not claimed that the construction of the frame was a substantial compliance with the contract, and if plaintiff can be held to account to Holomon for the value of the frame, it would be for the reason that no one should be permitted to enrich himself at the expense of another, and there not being any evidence in the record showing that plaintiff had appropriated or intended to appropriate the frame, and the evidence further showing that the frame as constructed was valueless, and that part of the materials used in its construction belonged to plaintiff, and that she had paid some of the workmen who had erected it, we are of the opinion that the court properly refused to allow Holomon any credit for the frame.

Conceding that Holomon was not guilty of any fraud in obtaining the note from plaintiff, it is established that he did not comply with his contract, and it must be conceded that he should be held liable for any damages sustained by plaintiff through his failure to comply with the contract, and that he should also account to plaintiff for the cash and note which he states were delivered to him in consideration of his obligation, with which he failed to comply.

The only evidence introduced tending to show that the plaintiff sustained any damage by reason of the failure of Holomon to comply with his agreement to build a house for her (aside from the damage resulting from Holomon’s failure to account to plaintiff for the money and note which had been delivered to him in consideration of his obligation to build the house, which was not complied with) was’ the testimony of plaintiff showing that she had, during the time she was waiting on Holomon to comply with his agreement, expended one hundred forty-four dollars for rent, and that at the request of Holomon she had demolished, an old building standing on the lot (which was worth fifty dollars) at an expense of twelve dollars, and presumably plaintiff was allowed to recover for these claims, which, however, together with the amount of one hundred fifteen dollars, for which Holomon should account, would amount to only three hundred twenty-one dollars, while the damages allowed in the judgment was five hundred sixty-two dollars.

In view of the fact that Holomon had agreed to complete the building (which he knew plaintiff wanted to use as a residence) by January 1, 1928, and his continued promises to construct the building, which he finally concluded he would not construct, we think the amount expended by plaintiff for rent during that time was properly allowed; however, we do not think that the evidence is sufficient to warrant the allowance for the value of the old house which was demolished by plaintiff or the expense of demolishing same, and allowing plaintiff also to recover for the amount of one hundred fifteen dollars which was delivered hy her to Holomon, in addition to one hundred and forty-four dollars, for rent paid out hy her, would fix the amount of damages at two hundred fifty-nine dollars, aside from the amount which he should account for hy reason of his failure to return plaintiff the note, which was fixed by the court at the face value of the note, and of which Holomon does not complain, only in event it should be held that the note should be cancelled, which involves the question as to whether or not the Bridges-Channel Clothing Company acquired the note in good faith.

It is conceded that the Bridges-Channel Clothing Company acquired the note before maturity and for a valuable consideration, and that the note was complete and regular upon its face, and while it is apparently conceded that the note represented a part of the price of the house which Holomon had agreed to build for plaintiff, and that an executory agreement may be a sufficient consideration and that a transferee of a note issued for such consideration is not deprived of the character of a holder in due course by the fact that he had knowledge of the consideration in the absence of knowledge that the consideration had failed (Sadler vs. White, 14 La. Ann. 177; State Nat. Bank vs. Cason, 39 La. Ann. 865, 2 So. 806; Continental B. & T. Co. vs. Times Pub. Co., 142 La. 309, 76 So. 612, L. R. A. 1918B, 632; Martel vs. Lafayette Sugar Rfg. Company, 153 La. 248, 95 So. 706; Tyler vs. Whitney-Central T. & S. Bank, 157 La. 249, 102 So. 325; Reese vs. Citizens Bank, 22 Ga. App. 519, 96 S. E. 452; McKnight vs. Parsons, 136 Iowa 390, 113 N. W. 858, 22 L. R. A. (N. S.) 718, 125 Am. St. Rep. 265, 15 Ann. Cas. 665; Barry vs. Kniseley, 56 Okl. 324, 155 Pac. 1168; 3 R. C. L., Bills and Notes, section 273), plaintiff contends that it was understood between her and Holomon that the note would not be negotiated until after the house was completed, or in other words, that it was payable conditionally, and that the Bridges-Channel Clothing Company having been informed that the consideration for the note was the executory agreement to build a house and that plaintiff would pay the note in monthly installments beginning on January 1, 1926, it should be held to have taken the note with knowledge that it was to be paid conditionally or only in event the house was built.

We do not think that such circumstance was sufficient to have given the Bridges-Channel Clothing Company notice that Holomon had agreed not to negotiate the note, and although it may be said that anyone who takes a note which he knows was given in consideration of an executory contract knows that equities may arise between the drawer and the drawee, or that the consideration may fail, such knowledge does not prevent one from acquiring the note without being subject to the equities which may subsequently arise between the drawer and the drawee, and we do not think that the fact that the transferee of a note is informed that the consideration of the note is an executory contract and that the drawer will pay the note before maturity is equivalent to notice that the note is payable only on the condition that the contract is executed.

The Bridges-Channel Clothing Company has in its answer to the appeal asked that the judgment be amended by allowing it judgment on its reconventional demand. However, the Bridges-Channel Company did not appeal from the judgment rejecting its reconventional demand, and the ruling of the court as to that demand cannot be considered on the appeal of the plaintiff. (Westermeier vs. Street, 21 La. Ann. 714; Clement Bros. vs. Their Creditors, 37 La. Ann. 692.)

The judgment appealed from is amended so as to reduce the amount of damages awarded plaintiff as against Holomon from five hundred sixty-two dollars to two hundred fifty-nine dollars,, and as thus amended the judgment is affirmed.


text:
    No. 3444
    Second Circuit
    DEWIL v. UNION INDEMNITY CO. ET AL.
    (March 12, 1929. Opinion and Decree.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    S.R. Thomas, of Natchitoches, attorney for defendants, appellants.
   WEBB, J.

Hankins Brothers entered into a contract with the Police Jury of Natchitoches Parish and the Louisiana Highway Commission .for the construction of a highway in Natchitoches Parish, and executed a bond for the faithful performance of the work and payment of claims, with the Union Indemnity Company as surety, as required by Act No. 224 of 1918, and the contractor sublet a part of the work to P. M. Dewil, who brought this action against the contractor and the surety on their bond to recover judgment against them for seventeen hundred fifty-six and 18-100 dollars, an alleged balance due him for work done under his subcontract.

On trial, judgment was rendered in favor of plaintiff against the defendants in solido for the sum of one thousand thirty-four and 60-100 dollars, with interest, from which they appeal, and plaintiff has answered the appeal, praying that the judgment be amended so as to increase the amount to that originally demanded.

It is conceded that the contract was let on a unit basis, or at a certain rate per measure for the various parts of the work, such as clearing right of way, excavation, fills, etc., and that the subcontract was on the same basis, and plaintiff having attached to his petition an itemized statement showing the quantity or aggregate measure of the work done and the price, which was a factor in fixing the balance' claimed, appellants contend that the proof should have been restricted to the quantity or measure shown on the statement, and, that the court in arriving at its conclusion as to the balance due, was in error in considering evidence showing the quantity or measure of work done to have been in excess of that shown on the statement annexed to the petition, and they further urge that the court, in recasting the account between plaintiff and Hankins Brothers, had given plaintiff credit for items which were not proven.

Considering the matter of variance between the pleadings and the proof, which appears to be the question raised by the appellants, we are of the opinion that it would have been sufficient for plaintiff to have alleged the amount or balance due him under the contract, as the defendants had knowledge of the contract and, the work called for by the specifications, and could not have been surprised by evidence offered to show the work done, and the fact that the statement of the account between the parties specified the quantity or measure of work done should not prevent plaintiff from showing that an additional quantity or measure of work was done, so long as such evidence would not increase the balance claimed to be due, and the judgment is restricted to or within the balance claimed to be due, defendants cannot complain.

Plaintiff did not keep any books or memoranda of the work done by him or of payments made, but relied upon the account kept by Hankins Brothers, and the account filed by the plaintiff showing the balance claimed to be due him by Hankins Brothers was made up by a former bookkeeper of Hankins Brothers, from data obtained from the books of Hankins Brothers, statements of plaintiff and data obtained from the field notes of the resident engineer of the Louisiana Highway Commission, who was in charge of the work undertaken by Han-kins Brothers. The account as thus made up was not accepted by the court as the basis of its judgment, but the account was recast by the court, which accepted as correct charges shown on the books of Hankins Brothers against plaintiff aggregating six thousand eight hundred thirty-three and 34-100 dollars, and allowing plaintiff credit for six thousand eighty-seven and 40-100 dollars, an amount shown by the engineer to have been due plaintiff for excavation, fills, etc., and further credits for use of teams, amounting to two hundred ten dollars, hauling gravel and water, fifty-one dollars, work done on force account, of seventy-five dollars and five hundred sixty-nine and 26-100 dollars, ditching, one hundred eighty dollars, hauling lumber, ten dollars, aggregating one thousand ninety-five and 26-100 dollars, and further credits, as shown by the books of Hankins Brothers, for dynamite returned, one hundred four dollars, merchandise returned, thirty-three and 50-100 dollars, dulicate check, one hundred sixty-six and 50-100 dollars, and a credit for four hundred eleven and 28-100 dollars, aggregating seven hundred five and 28-100 dollars, or a total credit of seven thousand eight hundred ninety-seven and 94-100 dollars, leaving a balance due plaintiff of one thousand sixty-four and 60-100 dollars.

The balance thus obtained is less than shown by the books of Hankins Brothers, and insofar as Hankins Brothers are concerned it may be that they should not complain of a judgment against them for an amount less than their books show was due; however, the surety company, which is the real party at interest, it being shown that Hankins Brothers had defaulted on their contract, is not bound by the books of Hankins Brothers when they admit an indebtedness, as it is not bound, to pay the debts of Hankins Brothers, but under a liberal interpretation of the bond it is only bound to pay for work, labor, material, etc., used in the construction of the work undertaken by Han-kins Brothers, and plaintiff claiming that there was a balance due him was bound to establish his claim.

The contract of Hankins Brothers with the Parish of Natchitoches and the Louisiana Highway Commission while filed in evidence is not in the transcript, but we assume that counsel noted its absence and did not deem it to be a necessary part of the transcript, and it appearing that Han-kins Brothers sublet the entire work to plaintiff, in the absence of any evidence to the contrary we assume that the labor, material and work claimed to have been furnished by plaintiff as shown for the items, use of teams, etc., aggregating one thousand ninety-five and 26-100 dollars, was for work, etc., included in the contract, and plaintiff having testified as to the correctness of the claim, and there not being any . evidence to the contrary, the claim should be allowed, unless the evidence shows that such items were included in the work stated by the resident engineer to • have been done under the contract as shown by the items on the account of six thousand eighty-seven and 40-100 dollars.

There is not any evidence in the record that such was the case and to so hold would not be warranted, and the only other item to which defendant objects is the credit of four hundred eleven and 28-100 dollars, which is not shown to have been for any work done by plaintiff but to have been an allowance given plaintiff by •Hankins Brothers to keep him in good spirits, and clearly the surety company could not be held liable for any such credit, and. striking that item from the account leaves a balance due the plaintiff of six hundred fifty-three and 32-100 dollars.

The judgment appealed from is therefore .amended, and the amount awarded plaintiff reduced to six hundred fifty-three and 32-100 dollars, and as thus amended the judgment is affirmed.


author: ODOM, J.

text:
    No. 3494
    Second Circuit
    DEVOE & RAYNOLDS CO., INC., v. SMITH
    (March 12, 1929. Opinion and. Decree,)

      Joe B. Hamiter, of Shreveport, attorney for plaintiff, appellee.
    James T. Jeter, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit against the defendant in the City Court of Shreveport to recover $129.45, which indebtedness is represented by one promissory note for $108.97 and an open account for $20.48.

Defendant, in answer, admitted the execution of the note and admitted also that he had purchased the goods, as set forth in the open account, but denied liability on the ground that the indebtedness had been paid.

There was judgment in the lower court, as prayed for, and the defendant asked for and was granted devolutive and suspensive appeals to this court. But he failed to perfect his appeal by giving bonds and bringing the transcript to this court. Whereupon, plaintiff, appellee, paid the costs incurred in the lower court and ■brought up the transcript, as provided in Article 590 of the Code of Practice, and now asks that this Court affirm the judgment.

We find in the transcript the original note sued on, as well as the sworn itemized account alleged upon, which were offered ■ in evidence by plaintiff, appellee. The defendant, having alleged payment of the debt, the burden was upon him to make proof of the payment. This he failed to do.

Finding no error in the judgment appealed from, it is ordered and decreed that the same be affirmed, with costs.


text:
    No. 2762
    Second Circuit
    HODGES v. KRANZ ET AL.
    (March 12, 1929. Opinion and Decree.)

      Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Harry V. Booth, of Shreveport, attorney for defendants, appellees.
   ODOM, J.

On September 25, 1922, F. R. Hodges purchased at tax sale the entire interest in the NW% of NW14 of Section 1, Township 14, Range 16 West, in the Parish of Caddo, said property having been assessed to and sold in the name of M. F. Smith and Oscar Kranz for the due and unpaid taxes of 1921. After the lapse of one year from the date of recording his tax deed, Hodges brought this suit to quiet his title, following the method prescribed by Act 101 of 1898, page 127. M. F. Smith made no appearance, but Oscar Kranz, the other defendant, answered, setting up that the tax sale as to him was null and void for the reason that he had had no notice of delinquency prior to the sale.

There was judgment in the lower court in favor of defendant, Kranz, annulling and setting aside the tax sale insofar as his interest was concerned. Plaintiff has appealed.

OPINION

The case was submitted and tried on an agreed statement of facts showing that M. F. Smith and J. J. Hollingsworth purchased the 40 acres of land in controversy at tax sale on May 27, 1905; that on Oc-. tober 31, 1919, J. J. Hollingsworth, ignoring the interest of his co-owner, Smith, sold the entire interest in the land to Oscar Kranz whose deed was promptly recorded and he at once took possession of and moved on the land, and that he was in (physical possession thereof at the time of the tax sale and when this suit was brought; that at the time he purchased from Hollingsworth, he was ignorant of the fact that Smith owned an interest in the land and had no such knowledge at the time of the assessment and sale.

As to the notice of delinquency, it is admitted that Kranz received none from the Tax Collector and that he had no notice otherwise of delinquency, but that (prior to the sale, the Tax Collector made out one notice of delinquency addressed to “M. F. Smith and Oscar Kranz, Shreveport, La.”; which notice was sent by registered mail to “M. F. Smith and Oscar Kranz, Shreveport, La.”, and that the envelope containing the notice was received by M. F. Smith, who signed the return card.

It is further admitted that Oscar Kranz had never at any -time resided in the city of Shreveport and had never received mail at that post office.

Plaintiff contends that the law with reference to notice of delinquency was, as to Kranz, fully complied with. We cannot so hold.

That legal notice of delinquency is a pre-requisite to the validity of tax sales in this State is settled beyond question.

The only question here presented is whether the tax debtor, Kranz, had such notice of delinquency as the law prescribed. It is admitted that he did not receive notice of delinquency. But that is not necessary, for it has been repeatedly held that a tax sale may be valid even though the tax debtor did not receive notice, provided the Tax Collector previous to the sale complied with the legal requirements for giving such notice. “But the rulings of the court have been consistent in this, that a sale of property for delinquent taxes is invalid if the Tax Collector has failed to comply with the requirements of the law for giving notice to the tax debtor, and if in consequence, the tax debtor did not have notice previous to the sale.” Adsit vs. Park et al., 144 La. 934, 81 So. 430.

Section 50, Act 170 of 1898, provides that the Tax Collector “shall address to each taxpayer who has not paid all taxes which have been assessed to him on immovable property, a written or printed notice * * * that his taxes on immovable property must be paid”; and Section 51 of the same Act provides that “in the country Parishes this notice shall be sent by registered mail.” This notice must be sent to the tax debtor at his place of residence.

The law is clear that each tax debtor is entitled to notice. Kranz was a tax debt- or. He was the record owner of an undivided one-half interest in the land sold, and was entitled to notice of delinquency. Instead of the Tax Collector mailing notice to him, he mailed one notice to “M. F. Smith and Oscar Kranz, Shreveport, La.”

It could not be contemplated that the notice so addressed would be received from the post office by both Smith and Kranz. As might have been expected, one of them, Smith, did receive it and he signed the return card—not as agent or the representative of Kranz, but individually. When the Tax Collector received the card, he had notice that it had been received by Smith and not by Kranz. He took no further steps to notify Kranz, but sold' his property as if he had been notified. It is not contended or suggested that the Tax Collector could not have ascertained the address of Kranz upon inquiry. He knew, or should have known, that Kranz was a resident of the Parish of Caddo, for he was not assessed as a nonresident.

In the case of Hoyle vs. Southern Athletic Club, 48 La. Ann. 879, 19 So. 937, the Court held “that the Constitution, in requiring that notice should be given to the taxpayer, evidently contemplated that reasonably diligent steps should be taken to make the notice effectual. It has always been recognized that a strict observance of the formalities called for by the law is exacted in matters of tax sales— a stricter observance, in fact, than in almost any forced proceeding under and through which ownership of property is made to shift.”

In McCrory vs. Bradford, 130 La. 212, 57 So. 892, notice of delinquency was mailed to McCrory at Burnside, where he had resided, but he had moved to Hobard, and the postmaster returned the letter with the notation “moved to Hobard,” but the Tax Collector made no further efforts to serve the notice and sold his property. It was held that when informed that the notice had not been delivered to the tax debtor, the Tax Collector should have used more diligence to make the notice effective.

So in the case at bar, when the Tax Collector received the return card and saw that the notice which he hadi sent out had been received by Smith only, he should have taken further steps to see that Kranz also was notified.

He had no right to assume that Smith would deliver the notice to Kranz or look him up and tell him of the receipt of it.

There was no privity of interest between Smith and Kranz. Each owned an undivided one-half interest in the land. But that was a separate ownership, as much so as if Smith had owned one forty acres of land and Kranz the forty acres adjoining. There were two separate interests, two tax debtors—each was entitled to notice.

But it is contended by counsel for plaintiff that, inasmuch as the land stood on the assessment rolls in the name of M. P. Smith and Oscar Kranz, one notice made out to both and served on Smith was sufficient. But such contention is in the very teeth of the law which provides that each tax debtor shall be notified. It would hardly be contended that in a ease where A, B and C each owned, under separate deed, three sub-divisions of land and for some reason, or for none, the Assessor placed all their assessments under one head to “A, B and C,” one notice addressed to A, B and C and served on A alone would be sufficient notice to B and C.

In this case, Smith and Kranz owned separate interests in the same land. Smith acquired his interest in 1905, and Kranz acquired his fourteen years later. There was nothing to indicate to the Tax Collector that these individuals were in any way connected or associated in the ownership of the property, and there was nothing to indicate that there was any privity of interest between them. But, on the contrary, the record itself and the assessment conveyed to him the information that there were two. separate estates.

If it be conceded that in cases where real estate is owned jointly by two or more individuals, it is proper to assess the entire interest under one head, in the name of all the owners, giving the names in full, it by no means follows that a notice of delinquency served on one of the joint owners is sufficient notice to each of the others.

In the case of Adsit vs. Park, supra, it was held that “under Act 170 of 1898, Sections 50 and 51, requiring Tax Collector to address to each delinquent taxpayer a written or printed notice, which in country parishes shall be sent by registered mail to residence or place of business of each delinquent tax debtor, the addressing of a notice of delinquency to one of several joint owners, ‘et al,’ or to ‘Park Wilcox, et al,’ is not a compliance with the law as to the other joint owners.”

Where property is owned in indivisión by several and assessed to them under one head, giving their names, the requirements of the law that each owner shall be given notice of delinquency, are not complied with by mailing one notice to them jointly.

The judgment appealed from is affirmed, appellant' to pay costs in both Courts.

REYNOLDS; X, recused.


text:
    Second Circuit
    No. 3343
    CLEMONS v. SUCCESSION OF JOHNSON
    (March 12, 1929. Opinion and Decree.)

      W. Peyton Cunningham, of Natchitoches, attorney for plaintiff, appellee.
    Rusca and Cunningham, of Natchitoches, attorneys for defendant, appellant.
   ODOM, J.

Mrs. Julia Johnson was appointed administratrix of the succession of her husband, James J. Johnson, and filed a provisional account. The plaintiff opposed the account on the ground that she had not allowed his claim for $558.(10, less a credit of $258.00.

Opponent’s claim is evidenced by a promissory note signed by the deceased. The administratrix admitted in answer that the note was signed by the deceased, but alleged that it was given for a gambling debt and was, therefore, without a valid, legal consideration.

There was judgment in the lower court for plaintiff ordering the administratrix to allow plaintiff’s claim on the account as a debt of the succession, and she has appealed.

OPINION.

The only issue involved is whether the note was given for a gambling debt. Plaintiff testified that he loaned the deceased the money for which he took the note, the deceased stating at the time that he needed the money and did not want to take that amount out of his business; and, being asked where he got the cash which he says he advanced, he stated that he drew it from the bank. Plaintiff admitted that at the time he was operating the “Campbell’s Club” where gambling was carried on, and that the deceased at times gambled there, but stated that it was a small game and no one could lose a great deal. He testified that he delivered the money to Johnson and took his note at a colored restaurant in the city of Natchitoches, in the presence of a colored man, named George Quinn, and a colored girl, named Willie Woodard. George Quinn testified that the deceased on the morning that the note was given, told him to tell Mr. Clemons to meet him at the restaurant that afternoon; that the two met and called for a pen and ink, and that he saw Mr. Johnson writing something, but he did not know whether the note was signed or not; and 'that while the two were together, there was a “big roll” of money in plaintiff’s hands, but that he did not see plaintiff give it to Johnson.

The girl, Willie Woodard, testified that she got the pen and ink for Clemons, saw Johnson sign something and saw the plaintiff, Clemons, with a large roll of “green backs”, and saw him give it to Johnson who walked out with it.

T. G. Barnes, cashier of the Exchange Bank, testified that according to the books of the bank, Clemons drew two checks on the bank, one for $125.00, and one for $682.00, which were paid by the bank and charged to him on Márch 16, 1927, which was the date on which the note was given, the check for $125.00 being in favor of J. O. Thomas, and the one for $682.00 being in favor of the bank—Clemons presumably drawing the cash, Barnes stating that he owed the bank 'nothing.

Against this, we have the testimony of Mrs. Johnson who says that her husband died in July, after having given this note on March 16, and that for several months previous to his death, he had been gambling and drinking heavily-—so much so that she found, it necessary to take charge of his business; and it is admitted that within the six months prior to his death he had lost approximately $1800.00 in gambling houses, and that prior to that time, he had been a lender, not a borrower of money.

Joe Maggio, an employee and close friend of the deceased, testified that he had often gone, not only to the “Campbell’s Club,” but to other gambling houses, and carried the deceased away. Both Mrs. Johnson and Maggio testified that the deceased was in the habit of drawing checks to pay gambling debts, some of them payable to persons he did not owe, in order to keep his wife from knowing that he had lost at 'gambling.

Albert Winberg testified that at one time he had a note signed by the deceased, payable to E. E. Hawkins, who, it seems, ran a gambling house, and that deceased paid the note by installments.

George Himel, assistant cashier of the bank, testified that the deceased made a deposit in his bank on March 14, and on the 16, but did not state the amounts. According to the books of the bank, deceased had an overdraft of $100.60 on March 1, a balance of $125.42 on April 1, and a balance of $221.18 on March 16, the day the note was given; and on that day the bank paid his checks totalling $121.28. The books further show that on April 9, deceased had a balance of $5,221.32, which seems to have been the proceeds of a loan from the Merchants & Farmers Bank.

Plaintiff called E. E. Hawkins, who conducted a gambling house known as the “Columbia Social Club”, out five miles from the city. He testified that on Saturday, March 12, 1927, four days before deceased-signed the note in controversy, he lost $558.75 at a game at his (Hawkin’s) place, and that three or four days later, he paid the amount. This is the exact amount which plaintiff says he loaned deceased and for which he took his note.

We have referred to and given in substance the testimony of every witness who took the stand. Considering all of it, our conclusion is that Johnson, the deceased, lost at the “Columbia Social Club” in a gambling game, and that Clemons, the plaintiff, loaned him the money with which to pay that debt, and took the note in controversy.

While Clemons is a gambler, and conducted a gambling game at “Campbell’s Club”, he had no connection whatever with the club or the game in which deceased lost the money. The consideration for the note was money loaned. The debt due Clemons by the - deceased was, therefore, valid.

If Clemons had won the money from Johnson, the consideration of this note would be invalid, for

“The law grants no action for the payment of what has been won at gaming, or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of gun and foot, horse and chariot racing.” C. C., Art. 2983.

The fact that plaintiff loaned deceased money with which to pay a gambling-debt, with which plaintiff was in no way connected does not render a note given for the money loaned void for the want of consideration. The consideration for the note sued on was money loaned, and the note is valid.

The judgment appealed from is correct, and is therefore affirmed, with costs in both courts.


text:
    No. 3238
    Second Circuit
    FIRST NAT’L BANK OF WINNFIELD v. GUYNES ET AL.
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    John J. Peters, of Winnfield, attorney for plaintiff, appellee.
    Eugene Beck and Harry Fuller, of Winnfield, attorneys for defendants, appellants.
   ODOM, J.

On June 5, 1926, A. D. Potts drew his check on the Bank of Winnfield for the sum of $400.00, payable to G. R. Robinson. Subsequently, the said Robinson, to whose order the check was drawn presented same to the Bank of Winnfield, on which it was drawn, and payment thereof was refused. He then took the check to the First National Bank of Winnfield, plaintiff herein, which bank paid him the amount thereof after the same had been endorsed by him, and also by the said F. A. Guynes. The check was then presented to the Bank of Winnfield, on which it was drawn, and payment was refused, whereupon the plaintiff bank brought this suit against A. D. Potts, the drawer of the check, and against Robinson, the payee, and against Guynes,' the. endorser. Before the trial, Robinson absconded and Guynes was adjudged a bankrupt. There was judgment against the other defendant, Potts, for the full amount of the check and he has appealed.

OPINION

The defense is that the plaintiff bank is not the holder of the check in due course. This contention is based upon the fact that, previous to the payment of the check by the plaintiff bank to Robinson, the payee, an officer of the Bank of Winnfield, on which the check was drawn, notified the Cashier of the plaintiff bank that payment of the check had been refused by his bank. It is contended that the check was given by Potts without consideration and that the plaintiff bank, having been notified that payment of the check had been refused, is charged with knowledge of the defects of the instrument and is therefore not a holder in due course, and cannot recover against the maker.

We are not impressed with the argument of counsel on this point. The facts are that the check was given for a good and valid consideration. It seems that the Cedar Creek Petroleum Company, Incorporated, owned leases on a block of land situated in the Urania Oil Field, and was at the time drilling a well. Robinson was interested in the Company and was in active charge of the drilling. The Company ran short of funds and, in order to obtain money with which to pay Robinson his salary, authorized him to transfer some of the leases which it held. Potts, the maker of the check, agreed to purchase a lease of 40 acres of this land, at $10.00 per acre. The Company authorized Robinson in writing to transfer the lease to Potts. Potts demanded time in which to satisfy himself that the title to the property was good. In the meantime, in order to get money into the Bank of Winnfield with which to pay for the lease, Potts drew his check on the Olla State Bank, in favor of the Bank of Winnfield. The Bank of Winnfield forwarded this check to the Olla State Bank and in return received from said bank a cashier’s check, payable to the Bank of Winnfieia. The parties agreed that the Bank'of Winnfield should hold this money and the assignment of the lease in escrow, pending the investigation of the title to the land by Potts, it being understood that in case Potts approved the title, then the lease should be delivered to him and the money delivered to Robinson, who represented the Cedar Creek Petroleum Company, Incorporated, as agent. At the time the check was drawn and paid by the plaintiff bank to Robinson, the escrow agreement had not been finally completed and, for that reason, the Bank of Winnfield, on which the check was drawn, refused to pay it.

It is not contended that Robinson, the payee of the check, was not entitled to receive the money which Potts agreed to pay for the lease. The record discloses that both the assignment of the lease and the $400.00, belonging to Potts, are now in the Bank of Winnfield. However, Potts, it seems, has left the country and has made no effort whatsoever to close the deal. The testimony shows that Potts told Bryan, the president of the plaintiff bank, that he would pay the check and the record discloses no reason why he should not do so. The fact that the deal was not finally closed and the money finally deposited to his credit in the Bank of Winnfield is due entirely to his own fault. The maker of a- negotiable instrument by making it engages that he will pay it according to its tenor. He has no legal defense to make against his obligation to pay the check. The plaintiff bank paid full value therefor and Potts must respond to it.

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