text:
    No. 11,494
    Orleans
    JOHN J. MEIER & CO. v. SCHMIDT & ZIEGLER, LTD.
    (December 16, 1929. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    (March 12, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Monroe & Lemann, and Nicholas Callan, of New Orleans, attorneys for plaintiff, appellee.
    Dufour, Rosen & Kammer, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff entered suit against defendant for the breach of a contract for the sale of 1,200 bags of sugar. The amount sought to be recovered— i. e., $1,824.23 — is the difference between' the contract price and the amount for which the sugar was resold by plaintiff, after defendant refused to accept delivery because of delay in shipping the sugar. Defendant denied liability. There was judgment in favor of plaintiff, and defendant has appealed.

The written contract between plaintiff and defendant consists of six telegrams, which passed between C. W. Waeker Company, at St. Louis, Mo., broker for the seller, and Schmidt & Ziegler, Limited, of New Orleans, La., the purchaser and defendant herein. On September 26, 1923, the broker wired Schmidt & Ziegler, Limited, as follows:

“Offer subject being unsold twelve hundred bags South Down Standard Pine Granulated Sugar nine thirty less to fob Houma Louisiana shipment promised this week option expires Thursday ten AM St. Louis time no brokerage.”

On September 27th, Schmidt & Ziegler, Limited, wired the broker as follows:

“Accept twelve hundred Southdown shipment this week wire additional offerings.”

Later in the day, on September 27th, the broker wired Schmidt & Ziegler, Limited, as follows:

“J. J. Meyer confirms Twelve Hundred Bags Southdown nine thirty less two fob Houma providing you wire immediately agreeing to accept same if already in transit St. Louis.”

Then Schmidt & Ziegler, Limited, wired the broker:

“Will accept twelve hundred Southdown providing Meyer will guarantee shipment this week answer immediately.”

The broker then wired to Schmidt & Ziegler, Limited, the following telegram:

“Meier has contract for shipment this week however will not be responsible for any delay wire if satisfactory had hard time to get him accept these terms after the advance of forty five points first thing this morning.”

On September 28th, Schmidt & Ziegler, Limited, sent the following telegram:

“Accept twelve hundred sacks Southdown your nite letter twenty seventh.”

On September 30, 1923, the Southdown plantation, from which the sugar was to be furnished, was compelled to discontinue operations temporarily on account of a fire, which destroyed a part of its mill. The sugar was shipped as promptly as possible after the fire, on October 23, 1923, and upon the arrival of the sugar in New Orleans defendant refused to accept it on account of the delay.

The evidence shows that the market declined just prior to and on the date of shipment, and, upon defendant’s refusal to accept the sugar, plaintiff sold it on the open market at a loss of $1,824.23.

Defendant contends that time was the essence of the contract, and that the delay in shipment justified it in refusing to accept the sugar; that, the statement in the telegram of September 27, 1923, to the effect “Meier has contract for shipment this week however will not be responsible for any delay” is a resolutory condition, and when the fire occurred, and delivery was delayed beyond one week, both parties to the contract were relieved from their obligations under it; and, in the alternative, that, if the plaintiff had the right under the above-quoted provision to delay delivery at his own will, and the buyer at all times was obligated to accept delivery of the sugar, then the clause is a potestative condition, which strikes the whole contract with nullity.

Plaintiff contends that the above-quoted provision is neither a resolutory nor potestative condition, but a clause which suspended performance during the- period of plaintiff’s inability to make delivery; and, secondly, that, as defendant made demand for shipment of the sugar after having been informed of the fire, and in no way signified any intention of receding from the contract, defendant thereby waived any breach which would have entitled it to recede from the contract, and was therefore obligated to take the sugar when shipped.

The first inquiry is: What is the meaning of the sentence: “Meier has contract for shipment this week however will not be responsible for delay.” It appears that this language contains two provisions: First, “Meier has contract for shipment this week,” a restrictive clause in favor of the buyer, defendant herein, as to the time within which the shipment must be made; and, secondly, “however will not be responsible for any delay,” a restrictive clause in favor of the seller, plaintiff herein, releasing it from any liability for damages which the buyer, defendant herein, might sustain in the event shipment was not made within the time provided by the contract — i. e., “this week.” This provision in the contract is therefore neither a resolutory nor a potestative condition. C. C. arts. 2024, 2045. Moreover, this provision would not justify plaintiff in extending the time of the performance of the contract, even in the event the cause of the delay was beyond its control.

Time was of the essence of the contract by its express provisions, and also from the very nature of the contract; i. e., a merchant’s contract, covering a commodity the market price of which is subject to change often and quicky. As the plaintiff failed to ship the sugar “this week,” defendant was under no obligation to take it théreafter, because the time limit in the contract for shipment had expired. When the breach of the contract occurred by plaintiff’s failure to ship the sugar within the time agreed upon, defendant was then compelled to elect either to recede from the contract or insist upon its performance.

The general principle of law applicable is concisely expressed by Judge Provosty in Des Allemands Lumber Co. vs. Morgan City Timber Co., 117 La. 18, 41 So. 332, 338, in the following language:

“Naturally one cannot claim the benefits of a contract, insisting upon its performance, and at the same time ask its dissolution. When a breach occurs, an election must be made then and there between asking for a dissolution and insisting upon further performance, and the choice is made once for all.”

The record convinces us that the defendant chose to have plaintiff deliver the sugar, after being informed of the plaintiff’s inability to make shipment “this week” on account of the fire at Southdown plantation.

It appears that Harry L. Laws & Co., representing the Southdown plantation as brokers, originally sold the sugar in question to plaintiff, and the sugar remained at the plantation for the purpose of being refined, and was there at the time that plaintiff sold it to defendant. Mr. Henry Martin, manager of Harry L. Laws & Co., testified as follows:

“Q. Did you so explain that situation to Schmidt & Ziegler, or to the representative of Schmidt & Ziegler?

“A. My recollection is that they discussed about possible delays in shipment. They must have come in about the time I wrote that letter to John J. Meier & Co.

“Q. Did Schmidt & Ziegler acquiesce in the situation that then existed?

“A. I cannot say that they acquiesced, but they were urging us to ship it. * * *

“Q. They still wanted the sugar?

“A. Yes, sir.

“Q. And they continually urged you to ship the sugar?

“A. Yes, for some period, but I cannot - say how long that kept up.

“Q. And they never did at any time instruct you not to ship?

“A. Not that I know of.”

Mr. Charles W. Ziegler, Jr., manager of the defendant, who handled the transaction for it, testified as follows:

“Q. I am talking about after September 28th. I understood that you went to see Mr. Martin and spoke with him with respect to having the sugar shipped preferentially?

“A. I don’t remember exactly what was discussed, but I asked him if he had any record of sugar I bought from John J. Meier & Co., and I said if he could expedite the matter I would be glad. * * *

“Q. Did you advise them not to ship the sugar after you learned these facts?

“A. No, sir.”

The record convinces us that this conversation between Mr. Martin and Mr. Ziegler occurred on Monday, October 1, 1927, the fire having taken place on Sunday, September 30, 1927, and thereafter defendant did nothing to change the status quo until the sugar arrived when it refused delivery.

In the case of Grapico Bottling Works vs. Liquid Carbonate Co., 163 La. 1058-1063, 113 So. 454, 456, the court said:

“On the other hand, while there was considerable delay in making delivery, according to the contract as modified, yet, when delivery was not made in April, to which time it had been advanced, plaintiff did not seek to cancel the contract, but, to the contrary, still desired it to be performed, and as late as June 12, 1920, telegraphed defendant, as we have seen, to fix some exact date when delivery would be made, and when, on June 16, 1920, defendant wrote plaintiff that it expected to ship the machine on June 29, 1920, plaintiff did not seek to cancel the contract, and made no attempt in that direction, until July 1, 1920, at which time defendant had, in good faith, loaded the machine on the car for shipment, and had the bill of lading signed. Under these circumstances, we think that plaintiff should have accepted delivery, and is not entitled to a rescission of the contract and to the recovery of the $450 paid by him, but should perform his part of the agreement.” See, also, Tremont Lumber Co. vs. Robinson Lumber Co., 160 La. 256, 107 So. 101.

As the defendant insisted upon performance of the contract after the breach, and at no time notified plaintiff that it considered the contract dissolved, the defendant was obligated to accept the sugar when delivered. The damages claimed were the direct result of defendant’s refusal to accept delivery, and plaintiff is entitled to recover.

For the reasons assigned, the judgment of the district court is affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,151
    Orleans
    CANOVSKY v. BONHAGE
    (February 17, 1930. Opinion and Decree.)
    Rittenberg & Rittenberg, of New Orleans, attorneys for plaintiff, appellant.
    Puneky & Barrios and Jas. J. Landry, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

M. Botkofsky was the owner of certain improved property bearing the municipal numbers 2910-12 Milan street in New Orleans.

Defendant, H. C. Bonhage, found the property attractive and thereupon made a written offer of $10,500 therefor to David Canovsky, a real estate agent, who is plaintiff in this suit.

The offer contained the following stipulation :

“Should I fail to comply with the terms or conditions of this offer after same is accepted, I obligate myself to pay on demand your commission on this sale, and any Attorney’s fees and costs of Court that you may incus in enforcing collection of your claim.”

Plaintiff alleges that through his efforts the owner’s acceptance was obtained, but that Bonhage failed and refused to carry out his obligation to take and pay for the property, and that hence, under the stipulation aboye quoted, he (Bonhage) has made himself liable for the agent’s commission at 4 per cent, on $10,500, or $420, and for a reasonable attorney’s fee, which is fixed in the petition at $100.

Defendant resists payment on two grounds: That the offer was not accepted, either by the owner or by his properly authorized agent; and that before the alleged acceptance was signed the offer had been withdrawn.

We find from the record that M. Botkofsky, the owner, was not in New Orleans when Bonhage signed the offer, and we gather that Canovsky thereupon took the offer to David Botkofsky, brother of the owner. David Botkofsky, knowing that his brother could be located on a train passing through Albany, N. Y., sent him a telegram reading as follows:

“New Orleans, August 27, 1928.

“Mr. Botkofsky:

“Have signed offer ten thousand five hundred Milan advise immediately. Dave.”

In answer to this message M. Botkofsky telegraphed his brother as follows:

“August 27, 1928.

“Rex Hat Co. D. Botkofsky

“150 So. Rampart Street

“New Orleans, La.

“Get them to raise about two hundred advise them that I did not accept the offer If you want will wire from Nashville offer not accepted try to work them if you can If not accept the offer ten thousand five hundred as per your telegram.

“M. Botkofsky.”

There is a dispute as to what occurred in New Orleans when this answer was received.

On behalf of Canovsky, it is contended that David Botkofsky, realizing that the offer of $10,500 was a very good one and that it might be lost if further negotiations were attempted, immediately signed the acceptance on behalf of his brother, without communicating the contents of the telegram either to Canovsky or to Bonhage. In fact, it is contended that, although Canovsky asked to see the telegram, the recipient thereof refused to allow him to do so.

Bonhage maintains that, before the acceptance was signed by David Botkofsky, Canovsky telephoned and said that the offer of $10,500 had been rejected, and that the owner would not take less than $10,750, whereupon he (Bonhage) not only refused to raise his offer, but instead, told Canovsky to withdraw his original proposition entirely.

The evidence on this disputed question of fact, in our opinion, does not preponderate either way. But we find it unnecessary to come to a conclusion on this point, because we feel that the acceptance, as signed by David Botkofsky, was not authorized by the owner unconditionally, and hence was not binding on him; and, if it was not binding on the owner, of course it could not be effective against Bonhage. Canovsky contends that the telegram of M. Botkofsky to his brother David gave David full discretion to act, and he points to that principle of law, which, in Corpus Juris, verbum “Agency,” sec. 246, p. 612, is stated as follows:

“Where the agent has authority to exercise discretion his exercise thereof will bind the principal. * * *"

The legal principle contended for is unquestionably sound, but has no application here, because, as we read the telegram, it gave no discretion to the agent, but, on the contrary, contained detailed and specific instructions as to how to proceed. It is true that the agent was directed to accept the original offer, if, after carrying out the detailed instructions referred to, a larger one could not be obtained. The words, “Advise them that I did not accept the offer,” do not indicate any intention to leave the matter to the discretion of the agent, nor does the concluding sentence, “If not accept the offer ten thousand five hundred as per your telegram,” evidence a desire that the agent may decide for himself whether he will attempt to have the offer raised. Ke was given the right to accept the original offer, if and only if, as a result of carrying out the detailed instructions of his principal, that offer could not be increased. Apparently M. Botkofsky had confidence in his own ability as a trader, and he determined just what steps were necessary to obtain the increased price which he desired. He did not wire his brother to try to get more if he thought he could, but to do certain specific things, and only in the event of failure to accept the original offer.

There can be no doubt that a principal' who gives specific instructions to an agent is not bound by the acts of the agent done in violation of or in disregard of those specific instructions.

Powers of attorney should be strictly construed, and the authority granted therein should not be extended beyond the clear intention of the principal as expressed in the document granting the authority. As is said in Corpus Juris, verbum “Agency,” sec. 199, p. 556:

“* * * A power of attorney, being a formal instrument, must be strictly construed according to the natural import of its language, and the authority conferred is not to be extende.d beyo.nd that which is given in express terms, or which is necessary and proper to carry into effect that which is expressly given. Powers of attorney are not subject to that liberal interpretation which is given to less formal instruments. * * *”

M. Botkofsky, had he not wished to carry out the agreement, could have refused to do so on the ground that he had authorized the execution thereof only on certain conditions, which conditions had not been complied with. In Corpus Juris, sec. 204, p. 562, verbum “Agency,” we find the following:

«* * * As a general rule every person who undertakes to deal with an alleged agent is, by the mere fact of agency, put upon inquiry, and must discover at his peril that it is in its nature and extent sufficient to permit the agent to do the proposed act, and that its source can be traced to the will of the alleged principal.

In Chaffe vs. Stubbs et al., 37 La. Ann. 656, we find the following:

“However much it may be claimed as a legal proposition, that the acts of the agent bind the principal, this can only be truly said when the former acts within the scope of his mandate.

“Where the power is not exhibited at the time of the contract with the agent and does not form part of it, it is clear that the acts of the latter cannot conclude his constituent, who at all times enjoys the privilege of showing by competent evidence, either that his instructions were not carried out or have been transgressed.

“Whoever deals with an agent is put on his guard by the very fact and does so at his risk. It is his right and duty to inquire into and ascertain the nature and extent of the powers of the agent and to determine whether the act or contract about to be consummated comes within the province of the agency and will or not bind the principal.

“If the power exhibited is sufficient, the principal will not be permitted to gainsay the acts of his representative, blit if it is not, he is warranted in repudiating them.”

While it is of no great importance, the record leaves us convinced that both M. Botkofsky '• and his brother David considered $10,500 a splendid price for the property, and, if they did so consider it a good price, the fact that no attempt was made to force the prospective purchaser, Bonhage, to accept' title and pay therefor is significant of the fact that they realized that the contract was not binding.

If the owner was not bound, Canovsky is not entitled to his commission, because he has not produced an enforceable contract.

Under the authorities above cited, it was Canovsky’s duty, before relying on the acceptance by the agent, to investigate ’the agent’s authority. The authority was contained in the telegram, and an inspection of the telegram would have shown that the agent was not authorized. He should have insisted on seeing the telegram.

The trial judge dismissed the suit, and, as we think that he was correct, the judgment appealed from is affirmed.


text:
    No. 11,783
    Orleans
    WHITE v. AURIANNE
    (January 27, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)

      H. J. Agregard, Theodore Cotonio and Theodore Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

J. Watkins White, a real estate agent, sues for what he claims is his share of a commission due by Miss Augustine Aurianne, because of services rendered by him in securing the signature of the other party, W. G. Rocquin, to a contract for the sale by Miss Aurianne to Rocquin of one piece of property for $6,000, and the purchase by Miss Aurianne from Rocquin of another piece for $13,000.

The contract is somewhat long, but a proper understanding of the controversy requires that it be here reproduced in full. It reads as follows:

“New Orleans, La., January 26th, 1928. “Mr. Frank Jordano, Agent, 738 Union St., New Orleans, La.

“I offer and agree to purchase the property known as #7819-21 Burthe St., same being a five room Double Duplex (clear of all encumbrances). With four galvanized garages.

“Measurements of Ground — -Frontage 60 feet by depth 120 feet for the sum of Thirteen Thousand and no/100 Dollars ($13,-000.00) on terms of Cash. This offer subject to and predicated upon vendor purchasing my property known as: Lot #12 and rear of Lot #13, Square 760, 75' fronting on Robert St., between Miro and Tonti Sts., bounded by Upperline St., by a depth of 129' 60' in rear for the price and sum of Six Thousand ($6,000.00) Dollars. Subject to a loan of $3,000.00. (Above property to be delivered clear of encroachments.)

“Taxes for current year to be pro-rated.

“Act of sale must be passed at purchaser’s expense, before Purchaser’s Notary Public, on or before 45 days after date hereof. All proper and necessary certificates to be paid by vendor.

“Purchase subject to existing leases, if any, as follows: Upper Apt., and one garage rented $50.00 per Mo. Lower Apt. with two garages leased to owner at $56.00 per Mo. Extra garage rented at $5.00 per Mo., Without Lease.

“If this offer is accepted, purchaser must deposit with Frank Jordano, Agent, immediately Ten Percent (10%) of each respective amount By Note, as part of the purchase price. This deposit to he non-interest bearing and may be placed in any bank by Agent. In the event that the purchaser does not comply with his agreement to purchase within the time specified, the vendor shall have the right, at his option, to either declare the deposit ipso facto forfeited, without further formality and without the purchaser being put in default, timé being the essence of this contract; or the vendor may, at his option, demand specific performance. In the event that the purchaser’s deposit is forfeited, the commission of the agent shall be paid out of said deposit, reserving to the vendor of the property the right to proceed against the purchaser for the recovery of the amount of the commission. In the event that the vendor does not comply with his agreement to sell within the time above specified, - the purchaser shall have the right, at his option, to either demand the return of his deposit plus a like sum, or specific performance.

“If this offer is accepted and the said deposit is made, vendor agrees to pay agent the commission of

4% on Duplex

4% on Vacant, which is earned on the signing of this agreement and shall not be affected by any subsequent agreement of the parties hereto, or by the annulment of this contract by any court.

“In the event either the purchaser or vendor, shall fail or refuse to comply with the terms of this offer and agreement, if Accepted, and it shall become necessary for any of the parties hereto to employ an attorney to enforce compliance therewith, or to institute or maintain a suit for damages, the party failing or refusing to comply, shall pay, in addition to the Real Estate Agent’s commission the fee of the attorney so retained, — to be fixed by the Court — and any and all costs incurred by reason of such suit.

“Possession to be given on passing act of sale.

“I hereby acknowledge having received a copy of this offer.

“This offer is to remain good and irrevocable through January 26th, 1928 at 5 P. M.

“Commissions to be equally divided between the offices of J. W. White Purchaser and Frank Jordano.

“Signature: Frank Jordano (Signed.)

“Address: Per M. R. Tucker, per client

“Sales Mgr.

“New Orleans, La., Jan. 26, 1928.

“I accept the above offer and agree to all of the terms and conditions_ herein. I hereby acknowledge having received a copy of this accepted offer, providing I have the privilege of sub. lease #7821 Burthe St. with one garage.

“Signature: W. G. Rocquin

“OK W. G. Rocquin Vendor

“Address: 7821 Burthe St.”

The petition alleges the execution of the contract, that Miss Aurianne refused to carry out its terms, and that plaintiff, J, Watkins White, having been instrumental in securing the signature of Rocq,uin, is entitled to receive from Miss Aurianne one-half of the total commission of 4 per cent on the two sales.

To this petition defendant filed an exception of no cause of action based on three different grounds, as follows:

“1. That there was no enforceable contract produced by the broker, the said contract being unenforceable by reason of the clause ‘subject to a loan of $3,000.00.’

“2. The petition and contract show that insofar as this defendant is concerned, the only broker1 in the transaction to whom she would be responsible is Frank. Jordano.

“3. As a condition precedent to the defendant becoming liable to her .agent for commission, the contract provided that the offer must be accepted and the deposit made. There is no allegation in the petition that the required deposit was made.”

In answer to the first contention, plaintiff argues that the words, “subject to a loan of $3,000.00,” do not necessarily mean that a loan must be obtained, but that they may be interpreted to mean that there is already in existence a loan of $3,000, and that this loan must be assumed, and that, since the words may be so construed, they do not necessarily constitute a potestative condition. He argues that evidence should be heard in explanation of the meaning of the words in question.

He further calls our attention to the following words in the contract:

“If this offer is accepted and the said deposit is made, vendor agrees to pay agent the commission of 4% on duplex, 4% on vacant, which is earned on the signing of this agreement and shall not be affected by any subsequent agreement of the parties hereto, or by the annulment of this contract by any court.”

The contention is that plaintiff, having originated the contract, in submitting it to her agent with the clause with reference to the loan already in it, is . in the attitude of saying:

“This contract is acceptable to me, and if you can obtain the signature of the other party, I will pay your commission, whether the contract is enforceable or not, and will take my chances on the other party’s consummating the deal.”

Both these arguments are ingenious, and we have no doubt would give us considerable food for thought, were it not for .the fact that, on the other two grounds raised by the exception of no cause of action, we agree with the exceptor, and, since we believe the suit should be dismissed on these other grounds, the questions which we have just above outlined become moot, and the arduous labors which we might otherwise have had to devote thereto may be reserved for other vexed problems which constantly confront us.

We feel that the second point raised by the exception is well taken, because we are unable to' see any relationship, contractual or otherwise, between plaintiff, White, and defendant, Miss Aurianne. The petition itself disclaims any relationship of White as agent when it in article 6 sets forth that:

“Petitioner avers that the said Prank Jordano did not act in the said transaction as a joint agent with Petitioner, but acted exclusively as the agent and representative of the said Miss Augustine Aurianne, Defendant herein.”

Since, under the allegations of plaintiff himself, the other agent, Jordano, was the exclusive representative of defendant, it is evident that, if White is entitled to any part of the commission, it must come from Jordano and not from defendant. In the light of the allegations of article 6, set forth above, the provision of the contract to the effect that “commissions to be equally divided between the offices of J. W. White and Prank Jordano” becomes manifestly a separate agreement between the two agents, and is in no way effective against defendant.

The third contention raised by the exception is also well founded, because the contract specifically states that the commissions are due upon the happening of both of two events; i. e., the acceptance of the' offer and the making of the deposit. It is alleged that the offer was accepted, but we find no allegation that the deposit was made.

Plaintiff, arguing that we should interpret the contract as requiring that the deposit must be made on the large transaction only, contends that, since defendant was the purchaser in that transaction, she cannot claim that the deposit was not made, because she should have made it herself, and one cannot complain of one’s own laches. But we are unable to so interpret the contract, sincei it very plainly requires a deposit on each transaction. We can find no other meaning for the words, “if this offer is accepted, purchaser must deposit with Prank Jordano, Agent, immediately ten per cent (10%) of each respective amount.”

Since the making of the deposit is a condition precedent to the earning of the commission, and since there is no allegation that the deposit was made, we feel that .on this ground, as well as on the second one .urged, the exception is well founded.

The district court maintained it and dismissed the suit, and, for the reasons given, the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 529
    First Circuit
    MURPHY v. GLADNEY’S, INC.
    (December 3, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    C. A. Battle, of Baton Rouge, attorney for plaintiff, appellant.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

Joseph R. Murphy was struck by a motor truck belonging to Gladney’s, Inc., while being driven by one of its employees, and badly injured. He claims of the defendant $490.16 for expenses caused by the treatment of his wounds and as expense at the hospital, and $9,509.84 in addition as damages on account of his injuries, pain, and suffering, which he alleges were due to defendant’s negligence, recklessness in operating its truck, and to the unreasonable speed at which it was being driven át the time. -

Defendant admits the collision . alleged against it, but denies the negligence, recklessness, and unreasonable speed alleged against it, and alleges alternatively that, if it be found to have been negligent in operating its motor truck, or in operating it at an unlawful speed, plaintiff was also negligent, and that plaintiff’s negligence contributed to bring about the collision which resulted in his injury.

The plaintiff was standing on Florida street in the city of Baton Rouge at its intersection with Thirteenth street, on the north side of the street car tracks on said street. He was standing nearer to the car track than to the curbing, but just how far from the car track is a matter of difference in the estimates made by witnesses on the subject. One witness, in position to see and near enough to accurately judge, says that there was space enough, between the curbing on the north side of the street and the place where plaintiff was standing, for him to have driven an automobile past the plaintiff without injuring him. It is clear that plaintiff was standing out in open view to defendant’s driver, who was going east on Florida street. An approaching street ear, about a block and a half east of the plaintiff, was also in plain view of defendant’s driver, if looking in the direction he was going. Defendant’s driver also saw that plaintiff was standing at the place which was the ordinary car stop for the street car that was coming, and, as it was raining, he must have known that plaintiff was waiting there for the purpose of getting aboard the coming street car, which was then close at hand.

Defendant’s driver testifies that he was driving on the south side of the street, and one witness corroborates him. Defendant’s driver says that, as he got up near to the plaintiff, plaintiff was facing north and suddenly backed out in his way, and that he could not help striking him.

The plaintiff testifies that he has the support of witnesses without interest and in better position to see, and the preponderance of the testimony on the subject is, that he was standing on the north side of the street car track, and, in that way, on the north side of the street, at the time he was struck, and not as contended for by defendant.

Plaintiff says that defendant’s driver, just before he got to him, was driving straddle of the north rail on the street car track, and as he got close to him, turned toward him and struck him. The evidence satisfies us that the collision occurred as claimed by plaintiff.

It was the .duty of defendant’s driver, approaching plaintiff, with an unobstructed view and with a rain falling, to commence in ample time to get his automobile under control, so that he could either pass between the plaintiff and the curbing on the north side of the street without injuring him, if there was room to do so in safety, and if the room was not sufficient, to stop and not run over him. If he did not wish to do that, then it was his duty, and the way was open, for him to timely turn to the south side of the street car track, which is the side on which he belonged to be in the direction he was going. But he was driving too fast, so fast that, although a rain was falling, a cause for going slow, his car was not under control, and he ran up too close to the plaintiff before making any effort to stop, or to get over on the south side of the street. And when he did make the effort to turn southward, and applied his brakes, it was too late to stop without first striking the plaintiff. In that way, by his own act he made a collision with the plaintiff inevitable.

The evidence shows that when he applied his brakes, due to the street, made slippery by the rain, the truck skidded forward. He swerved his engine toward the south side of the street, but the swerve of his motor southward caused the rear end of his truck to skid sideways past the plaintiff. His rear left fender struck plaintiff, knocking him 10 or 15 feet, inflicting on him a dreadful wound on the left side of the groin.

The evidence shows that the left fender, the rear end of defendant’s truck, had a piece broken out of it several inches square, leaving a sharp, pointed corner on its outer edge. We are satisfied, from the nature of the wound and from the looks of the fender, that it was this sharp corner that struck plaintiff in the front, as it passed him. The size' and depth of this wound would seem perilous, but, according to the physician who treated plaintiff at the hospital, the greatest harm done to the plaintiff was that his ankle was so badly broken by the blow that his foot was turned almost around in the opposite direction to which it should be. The doctor thinks that' plaintiff will néver have as good use of his ankle as he had before the injury; that this injury will constitute a permanent weakness in his left ankle.

The negligence of the defendant and its responsibility for the collision, and the resulting injury to the plaintiff, appears to be well established.

We are satisfied that plaintiff was standing on the north side of the car track at the intersection with Thirteenth street. He was also standing in the place where the street cars generally stop to let off and take on passengers, and when plaintiff was standing there the street car was coming toward him, going west.

Defendant contends that plaintiff was negligent in being where he was at the time defendant’s truck ran into him. It was not an act of negligence, under the circumstances.

When plaintiff saw defendant’s truck was bearing down on him and was about to run over him, acting on the impulse of the moment as anybody else would have done, he tried to get out of the way. He suddenly turned, facing defendant’s truck, endeavoring at the same time to spring back toward the north curbing; but he was unable to get out of the way, and was struck and injured.

The district judge rendered judgment in favor of the plaintiff for $3,000. Included in this amount is $490.16, necessary expenses caused by plaintiff’s injury, which sum he has paid.

Defendant contends that the amount is excessive. We are not prepared to say the lower court erred in the amount awarded.

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


text:
    No. 549
    First Circuit
    STATE EX REL. CLARK v. PERRES, MAYOR
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    (March 31, 1930. Writs of Certiorari and Review Denied by Supreme Court.)

      Ogden & Hoffpauir, of Crowley, attorneys for plaintiff, appellee.
    Pugh & Buatt, of Crowley, attorneys for defendant, appellant.
   ELLIOTT, J.

Dr. M. L. Clark sues to compel Felix Perres, mayor of the town of Rayne, in his capacity as mayor, to recognize him as municipal health officer of said town, and to sign warrants for his salary as such.

The record shows that on August 14, 1928, the town council of Rayne met, and acting under and pursuant to the provisions of Act No. 79, Ex. Sess. 1921, sec. 13 (amended by Act No. 296 of 1926), appointed a board of health. The mayor immediately vetoed the action of the council making the appointment. The board of health that had been appointed met, however, notwithstanding the veto, on August 21, 1928, and, according to the minutes of the meeting appointed relator president of the town board of health, and fixed his salary at $25 per month. The petition of the relator alleges, on this subject that the minutes of the organization of the town board of health makes it appear that he had been nominated and appointed president of the town board of health, when in truth and in fact it was to the office of town health officer that he was nominated and elected; that the minutes state his election as president of the town board of health through clerical error on the part of the temporary secretary in transcribing the minutes, etc. Relator ■ immediately took charge as health officer of said town under said election and qualified and commenced the performance of his duties as such.

The minutes of the state board of health show that on October 30, 1928, the state board, taking cognizance of- said action of the town board, approved the appointment of Dr. Clark as health officer of said town. The state board- evidently looked on the action of the town board, on August 21, 1928, not as an election as president of the town board, as the minutes of the town board show, but as health officer of said town under the law -on the subject.

Relator alleges that Mayor Perres refuses to recognize him as health officer, under said election and to sign warrants for his salary, etc.

Defendant excepted to plaintiff’s demand on the ground that his petition showed no right or cause of action. His exception was accompanied by his answer, in which he admits vetoing the appointment of the board of health, and to having refused to recognize relator as health officer, and to sign warrants for the payment of his salary as such, alleging that he had acted on the advice of the city attorney in each instance. He denies the error alleged by relator to have occurred in transcribing the minutes of the meeting of the -board of health as to the office to which relator was elected.

The lower court at first referred the exception of no right or cause of action to the merits, but, upon taking up the merits, it overruled the exception.

The writ of mandamus prayed for was made peremptory. Defendant has appealed.

In summary proceedings an exception of no right or cause of action may be filed at the same time as the answer, and the rights of the exceptor are not waived by the answer, State vs. Board of Liquidation, 135 La. 571, 65 So. 745.

The exception of no right or cause of action will therefore be taken up and considered on the face of the petition. The exception is based on the fact that the petition of the relator does not allege that the town council has adopted a budget of expenditures for the year 1929 and provided therein for the payment of relator, nor is it alleged that there is any money in the town treasury available for the purpose of paying him.

The town of Rayne is governed by the provisions of Act No. 136 of 1898. Section 31 of this act provides:

“That all expenditures of money for any purpose whatever, shall be in pursuance of a specific appropriation made by order, and in no other manner.”

The Act No. 32 of 1902, sec. 1, reads as follows:

“That no * * * municipal corporation in this State shall, in any one year, make any appropriation of, approve any claim against or make any expenditure from the annual revenue for that year, which appropriation, approved claim or expenditure shall, separately or together with other appropriations, approved claims or expenditures, be in excess of the estimated revenue of that year.”

Sections 2, 3 and 4 do not seem to be pertinent to the question in hand, but Section 5 provides:

“That no evidence of indebtedness or warrant for- the payment of money shall be issued by any officer of any * * * municipal corporation in this State, except against money actually in the treasury of such * * * municipal corporation; provided, that this section shall not apply to the certificates of payment authorized to be issued under Section 3 of this act or to certificates issued to jurors and witnesses for their services in the courts.”

Section 6 makes it a criminal offense for any officer to violate any of the provisions of the act.

The exception of no cause of action appears to have been well pleaded.

The Act No. 5, Ex. Sess. of 1870, has reference to the city of New Orleans, and not to other sections of the state. Section 1 provides that no court within the state shall have authority to issue a writ of mandamus against the city officers the purpose of which is to compel them to issue and deliver any order or warrant for the payment of money against the city treasurer, etc.

Section 2 provides that, after judgment has been obtained, become executory, and been registered, it shall be the duty of the controller to warrant on the treasury for said amount, without any special appropriation by a common council; provided always that there shall be sufficient money in the treasury to pay such judgment, specially designated and set apart for that purpose in the annual budget or detail statement of items of liability and expenditure.

In the case State ex rel. Thomas Lynne vs. Calhoun, 27 La. Ann. 167, and State ex rel. Houston vs. City of New Orleans, 30 La. Ann. 82, it was held, under the above law, that, where a petitioner has alleged that at the time of making his demand there is money in the city treasury specially designated and set apart for the payment of his judgment, he must prove his averment, else he is not entitled to the writ prayed for.

In State vs. New River Drainage District, 148 La. 603, 87 So. 310, the court considered an exception of no right or cause of action in a suit against a drainage district in which, as in this case, it had not been alleged that there were funds in the treasury available for the purpose of paying his judgment, and the court, acting on the exception, said (we quote from the first clause of the syllabus):

“Want of funds is a complete answer to petition for mandamus to compel governing authorities of a political corporation to pay a judgment against the corporation unless the corporation has authority to collect revenues with which to pay the judgment.”

The case State ex rel. Dardenne vs. Cole, Judge, 33 La. Ann. 1356, was based on provisions of the Revised Statutes which do not have application to municipal officers coming under section 31 of Act No. 136 of 1898 and Act No. 32 of 1902.

The judgment overruling the exception of no cause of action was erroneous. The exception should have been sustained, and the suit dismissed.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and it is' now ordered that the exception of no cause of action be sustained, and that plaintiff’s suit be and is hereby dismissed; plaintiff and appellee to pay the costs in both courts.


author: LECHE, J.

text:
    No. 553
    First Circuit
    SIMS v. LAKE CHARLES IRON & METAL CO.
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)

      Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellee.
    M. R. Stewart, of Lake Charles, attorney for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment awarding plaintiff compensation under the Employers’ Liability Act in the sum of $299 payable during the first 50 weeks, in instalments of $5.20 per week and during the succeeding 75 weeks in instalments of 52 cents per week. The only defense in the case, is that plaintiff is not entitled to compensation because at the time he was injured, he was violating statutory regulations enacted for the safety of himself and others, as provided by section 28 of the' Employers’ Liability Act (Act No. 20 of 1914).

Plaintiff was driving a truck on the public highway known as the Old Spanish Trail, in the direction of Lake Charles. He ran his truck into an abutment on the end of a concrete bridge, and the impact partially wrecked the truck and jammed his foot between a lot of scrap brass in the truck and the foot brake control. His ankle was crushed and the ligaments and muscles of his foot were seriously injured. The fact that the accident happened while plaintiff was working for the defendant, that it took place while he was employed by defendant and during the course of his employment, is not denied. But defendant contends that plaintiff was driving over the speed limit, on the left hand side of the road and that the accident happened as a result of plaintiff’s own recklessness and his violation of the statute regulating automobile traffic along the public highways of the state. Without in any manner expressing any opinion as to whether the allegations in defendant’s answer are sufficient to absolve it from responsibility, we do not think that the evidence in the record establishes the recklessness and negligence charged'to the plaintiff. It is admitted that plaintiff was on the extreme left side of the road when he ran into the bridge abutment, but it is also proved that he had to do so to avoid a collision with some cattle standing along the road and therefore that he did not “deliberately breach any statutory regulation affecting the safety of life and limb” as provided in the statute. Nor is there proof to the effect that he was at the time, exceeding any speed limit.

We believe that the evidence fully justifies the conclusion that defendant is liable.

Plaintiff has answered this appeal and he asks that the allowance of 52 cents per week for the last 75 weeks, be increased to $3 per week. He is entitled to have the judgment so amended in accordance with Section 8, subsection 3, page 361 of Act 242 of the Legislature, adopted in. 1928.

It is therefore ordered that the judgment of the district court be amended so as to increase the award of 52 cents per week for the last 75 weeks to $3 per week, and as thus amended the said judgment be affirmed.


text:
    No. 545
    First Circuit
    BOSWELL v. BRADSHAW
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    R. A. Fraser, of Many, attorney for plaintiff, appellee.
    A. B. Cavanaugh, of Leesville, attorney for defendant, appellant.
   ELLIOTT, J.

Wiley B. Bradshaw executed and delivered his promissory note to G. C. Boswell in part payment of the pur chase price of the merchantable pine timber situated on certain land. The sale was made with full warranty of title. Boswell brought suit on the note, and Bradshaw resists payment, pleading failure of consideration due to the existence of a federal land bank mortgage which he alleyes burdened the timber at the time of the sale. He alleges that he removed part of the timber, but was prevented by the Federal Land Bank from removing all of it; that his total loss on said account he estimated to be $1,081.95.

He further urges that in the sale from Boswell to himself he was granted two years, from January 1, 1928, in which to remove the timber, but that the said Boswell, as a matter of fact, did not have that length of time from his own authors in title, for the purpose of removing the timber, and he suffered a further loss and failure of consideration on said account.

The defendant carries the burden of proof as to the failure of consideration on each of the grounds alleged.

The evidence does not show that the Federal Land Bank prevented defendant from removing any of the timber he acquired from Boswell, nor that he lost any of the timber on account of same. And the evidence does not show that he lost any part of it, due to the fact that Boswell did not have two years remaining him in which to remove the timber after selling it to the defendant.

The judgment of the lower court in favor of the plaintiff was correct.

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


text:
    No. 516
    First Circuit
    SIMON v. HULSE (LOUISIANA HIGHWAY COMMISSION, Garnishee)
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Refused.)
    (February 3, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Benton & Benton, of Baton Rouge, attor neys for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for intervener, appellant.
   LECHE, J.

Plaintiff obtained a judgment against defendant, in the district court sitting in and for the parish of St. Charles, May 7, 1929. In execution of that judgment, plaintiff then obtained garnishment process in the district court sitting in and for the parish of East Baton Rouge on May 20, 1929. The process was issued against the Louisiana Highway Commission, and citation and interrogatories were served on the garnishee on May 21, 1929. The garnishee answered the interrogatories within the delay fixed by lav/, and its answer is to the effect that it neither holds nor controls any property, any credit, or any right belonging to plaintiff’s debtor, S. T. Hulse. Further answering in detail, garnishee showed that Hulse had in May, 1928, contracted with it to build a highway in the parish of Bienville for an estimated price of $43,651.51; that it had, at the time of service of the interrogatories, paid to Hulse earned sums of money amounting to $25,875.28; that the unearned sums which might become due to Hulse under1 the contract, had been assigned by Hulse to Ardis & Co. of Shreveport, and later to the Union Indemnity Company of New Orleans, the last notice of said assignment dated April 27, 1929, having been received by garnishee previous to the service of interrogatories. Wherefore garnishee again asserted that it owed nothing to defendant S. T. Hulse.

Plaintiff traversed the answers of garnishee and the Union Indemnity Company intervened in the garnishment process in order to protect the rights which it had acquired under the assignment made to ’t by Hulse. So that all who are interested are now parties to this proceeding.

The district court rendered a judgment apparently in favor of plaintiff, but containing conditions depending upon future events, and silent upon the question of liability for costs.

Both the highway commission and the Union Indemnity Company have appealed.

Articles 239, 241, and 246, Code Practice, define as liable to seizure, by garnishment process, property, rights, and credits belonging to the debtor and held by, or under the control of, third persons. The plain language of these articles, and others on the same subject, indicates that such property, rights, and credits must be in existence at the time of service of interrogatories and no reference is made to property, rights, or credits that might, at some future time, come into the possession of, or1 under the control of the garnishee. It is hard to conceive how seizure can be made of things that are not yet in existence. In the case of Humphrey vs. Midkiff, 122 La. 939, 48 So. 331, 20 L. R. A. (N. S.) 912, the court holds unequivocally that property, rights, and credits of the debtor in the hands of third persons must be in. esse before they may he seized under garnishment process. The decision in Fay & Egan Co. vs. Saw & Planing Mills, 50 La. Ann. 205, 23 So. 312, does not controvert that proposition.

Plaintiff does not, in his rule to traverse the answer of garnishee, charge or prove the falsity of the answer, but seems to rely upon his right to seize a credit which may or may not become due to his debtor in the future. It is our opinion that there is no law to sanction such a proceeding.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that the relief prayed for by plaintiff in rule to traverse be denied, and that the garnishee, the Louisiana Highway Commission, be discharged from all liability under this proceeding; all costs of same to be paid by plaintiff.


text:
    No. 548
    First Circuit
    HEFFNER v. CROWLEY MOTOR CO., INC.
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Refused.)
    W. J. Carmouche, of Crowley, attornoy for plaintiff, appellant.
    Pugh & Buatt, of Crowley, attorneys for defendant, appellee.
   LECHE, J.

Marshal Heffner, aged about 19, entered into an agreement with defendant. In accordance with the terms of that agreement, he turned over to defendant a secondhand Ford roadster automobile, which the defendant accepted with the understanding that its value, agreed to be $150, would be deposited with defendant and would be retained as part of the purchase price of a new Ford automobile. He also agreed to purchase from defendant a new automobile, which was to be delivered to him as soon as defendant received its quota of the new' Ford automobiles which were then about to be put on the market in Crowley. Marshal Heffner was at that time working for Mr. or Mrs. Leonard Hooker, was apparently supporting himself by his labor, and there was nothing in his appearance to suggest the impression that he was a minor. The Hooker family was engaged in the business of selling automobiles, and Marshal Heffner, anxious to provide himself with another automobile, did not want to wait for the arrival of the new Fords at the Crowley Motor Company’s establishment, so that after some three or four weeks he proceeded to buy a secondhand Dodge roadster from Mrs. Hooker. The agreement between Marshal Heffner and the Crowley Motor Company was entered into on August 29, 1927, and the sale from Mrs. Hooker to Marshal Heffner was consummated September 19, 1927.

The present suit was filed about May 4, 1928, by A. C. Heffner, father of Marshal Heffner, who, after alleging that the contract between Marshal Heffner and the Crowley Motor Company was null and void, because Marshal Heffner was then a minor, seeks to recover the sum of $180, the proceeds which he alleges were received by defendant when it sold the Ford roadster, which had been turned over to it by the said Marshal Heffner.

There are two defenses made to this de- i mand. The first is that plaintiff has no interest in, and therefore no right of action on, the issue presented by his petition, for the reason that the credit, said to amount to $150, resulting from the deposit of the proceeds of sale of the Ford roadster, has been assigned and transferred to Mrs. Leonard Hooker, and no longer belongs to plaintiff or to his son. This defense was presented in the form of an exception. On' the trial of the exception, the district judge referred it to the merits, and properly so. That defense involves a question of fact, which it is futile to determine, and is of no consequence, considering the views which we entertain in regard to the other and really important question, which is decisive of the case.

We held in substance in the case of J. B. Stakes vs. Lara J. Jones, appealed from the parish of Acadia and decided June 12, 1919, 125 So. 197, that a father who is intrusted with the custody and administration of his minor child’s estate, under article 221, C. C. may not void and nullify the engagements and agreements made by such minor with innocent third persons, apparently with the consent of that father, in regard to the administration and disposition of such estate. To hold otherwise would be to open the door for, and to permit the commission of fraud. The purpose of our civil law, based upon the highest principles of ethics and morality, and enacted after the experience of ages, is to prevent, and not to permit, the commission of fraud. A contrary doctrine would permit the father to remain silent when such engagement was to his advantage, to only repudiate it when to his disadvantage, and thus, by his own laches, cause a loss or damage to innocent third persons.

Plaintiff, as against the principles thus announced, seems to rely upon the terms of C. C. art. 3001, which provides that “women and emancipated minors may be appointed attorneys,” etc., and he contends that, by this language, authority conferred upon an unemancipated minor is null and void and of no effect. This is a non sequitur. The language of article 3001 is substantially a literal translation of C. N. art. 1990. The French commentators on the Code Napoleon are practically unanimous in the opinion that such an authorization cannot be questioned by the principal, as against third persons who have acted on the faith of such authorization. Baudry-Lacantinerie, commenting upon that article of the Code, says that the functions of an agent may be exercised by an unemancipated minor. The"' principal is free to repose his confidence in whomsoever he may wish. If the incapacitated person whom he has chosen deceives him, he alone should suffer, since he has assumed the responsibility for all that his agent might do within the limits of the power conferred upon him. It concerns him alone to expose himself to such a danger. Baudry cites as authority for this opinion “Cpr. Cass. 20 Janv. 1892.”

Fuzier-Herman in his “Code Civil, an-no te,” commenting on article 1990, says:

“Thus the mandate given to an unemancipated minor is valid in the sense that the minor, in carrying out the mandate, binds the principal towards third persons.”

He cites as authority decisions of the French courts, and also Duranton, Troplong, and Aubry and Rau.

To hold otherwise would certainly be contrary to ethics and good morals.

In this case Heffner, the son, entered into a contract with the Crowley Motor Company on August 29, 1927. The motor, company had no reason to believe otherwise than that young Heffner was fully able to act in his own right. On September ID, 1927, Heffner, Jr., openly violated the contract by buying an automobile from Mr. or Mrs. Hooker. The present suit, to annul the contract with the Crowley Motor Company, was filed May 4, 1928, and therein A. C. Heffner, father, seeks to void that contract on the ground that his son was' a minor at the time the contract was entered into. Admitting the minority of young Heffner, it was his father’s right, and indeed his duty, to have prevented him frofh misleading the Crowley Motor Company by entering into this agreement, and he now has no right to void what he apparently sanctioned, to the detriment of the Crowley Motor Company.

For these reasons, the judgment of the district court is affirmed.


author: MOUTON, J.

text:
    No. 534
    First Circuit
    BAGESSE v. THISTLEWAITE LUMBER CO., LTD.
    (December 30, 1929. Opinion and Decree.)

      Modisette & Adams, of Shreveport, attorneys for plaintiff, appellant.
    Gilbert L. Dupre, of Opelousas, L. Austin Fontenot, of Opelousas, Beard & O’Keefe, of New Orleans, attorneys for defendant, appellee.
   MOUTON, J.

Joseph Bagesse, Jr., an employee of defendant company, was injured on October 23, 1928, while in its service, and, from the effects of the injuries so received, died five days thereafter, on October 28, 1928.

His surviving mother, Mrs. Josephine Bagesse, sues defendant company in her individual capacity in damages for $30,300 on different items alleged in her petition, and, in the alternative, for compensation under the Employers’ Liability Act.

Her claim for damages was dismissed on an exception of no cause of action, with reservation made allowing her to continue the suit on her alternative demand. She appeals.

We will not attempt to make an analysis of the various allegations of plaintiff’s petition, to show the real gravamen of the demand, which appears in articles 32 and 33 of the petition, wherein it is alleged that defendant company had, in violation of the statutes of this state enacted in the interest of public policy, and particularly of Act No. 301 of 1908, employed the deceased, Joseph Bagesse, Jr., then a minor of tender yeai-s, about 14, in a hazardous occupation, averred to have been the cause of the accident which resulted in his death. It is for the violation of these statutes, particularly of Act No. 301 of 190S, that the mother of the deceased is asking indemnification by way of damages.

In the case of Alexander vs. Standard Oil Company of Louisiana, 140 La. 54, 72 So. 806, 811, plaintiff, a widow, brought suit against the company, claiming damages individually, and also for a larger sum for the benefit of her minor son, for injuries he had suffered in an accident. The court, in that case, rejected the demand of the widow, Mrs. Alexander, and gave her judgment for her minor son in her capacity of natural tutrix. In that case the court held that the employing of the boy in dangerous work was a violation of Act No. 301 of 1908, the Child Labor Law; that its terms were absolute, and condemned defendant to pay damages for the benefit of the minor. It, however, rejected the demand for damages claimed by w'idow Alexander, his mother.

In passing on the provisions of the statute, the court used the following language;

“The duty imposed by said statute upon the defendant not to employ a child in a dangerous occupation is thus imposed for the protection of the child and in his interest and that of society in general, not in the interest of the parent of the child. The defendant owed no duty therefore to the mother of the child, and has been guilty of no fault toward her which could serve as a basis on her part for a claim of damages.”

Likewise, in this case, the defendant incurred no obligation towards plaintiff, in whose’ favor there exists no ground for her demand in damages. As she has no basis for such a claim, it follows that she had no cause of action, which authorized the judgment dismissing her demand under the exception filed, with due reservation permitting the continuation of her suit for compensation.


text:
    No. 573
    First Circuit
    LAWHORN v. A. W. PETTIGREW, INC.
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendant, appellee.
   LECHE, J.

Plaintiff, surviving widow, of Jesse Lawhorn, sues, in her own behalf and in behalf of her minor children born of her marriage with Lawhorn, for compensation. Her husband was killed by an accident which occurred while he was felling a tree in a swamp situated in the parish of Terrebonne.

In the district court defendant first pleaded the want of capacity of plaintiff, then it attacked the constitutionality of the Employers’ Liability Act (Act No. 20 of 1914, as amended), under which this proceeding was instituted. These defenses were both overruled by the trial judge. Defendant then denied that Lawhorn, the deceased husband of plaintiff, was in its employ at the time that he received the injury causing death. This defense was maintained by the district court, and from that ruling plaintiff has taken the present appeal. Defendant’s failure to appeal or answer plaintiff’s appeal eliminates the two first-mentioned defenses in this controversy.

The pertinent facts are that Lawhorn had been previously engaged by defendant to cut railroad ties, for which defendant paid him in proportion to the number of ties which he had cut. Defendant was engaged in the manufacture of ties which it would cause to be cut wherever it could obtain the necessary timber, and its tie making operations would therefore shift from one place to another, according to the locality where it could secure the necessary material.

Defendant acquired the right to cut and manufacture ties in what the witnesses call the Bodin swamp. Before operating in the Bodin swamp, defendant notified its tie-cutters not to engage in their work until it had ascertained the location of the lines within which it had obtained the right to fell and use the timber for making ties. Lawhorn ignored the instructions given by Pettigrew on behalf of defendant, and in violation of defendant’s orders he proceeded to the swamp. He had hardly begun to work, when in felling a tree he was struck by the tree, and, from the effects of that injury, he died.

Frank Mitchell, a witness for plaintiff, testified in this case that all the cutters were notified to go to the Bodin swamp in the morning, but this is denied by defendant’s witness Hoffman and by Pettigrew. Mitchell himself had testified in a previous base between the same parties that he did not know who had sent Lawhorn into the swamp in the morning. The trial judge who heard all these witnesses did not believe Mitchell, and there is no reason why we should give his testimony more weight than that of Hoffman and Pettigrew. The only reasonable conclusion to be drawn from the evidence is that Lawhorn was not only not acting in the course of his employment at the time he was injured, but that he was, at the time, acting in violation of the orders of his' employer.

Plaintiff lays stress on the fact that defendant paid Lawhorn for two ties which it accepted from him, although these ' ties were cut and made just a moment before Lawhorn was killed. In truth, these two ties were accepted by defendant and paid for by it as. coming from Mitchell, and it had no knowledge that they had been made by Lawhorn.

We believe the judgment of the district court is correct and should be affirmed, and

It is so ordered.


author: MOTTTON, J.

text:
    No. 528
    First Circuit
    LEBLANC v. O'DONOVAN
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)

      Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   MOTTTON, J.

On January 4, 1929, while driving an auto on a highway, O’Donovan, defendant, ran up against Mrs. Felix Leblanc, breaking her left leg, which, it is alleged by plaintiff, was the cause of her death, which occurred a few days thereafter at the General Hospital in the city of Baton Rouge.

The accident occurred early in the morning, on the public highway known as the Bayou Sarah road, which runs into said city from the north. Defendant was coming from that direction at the time and • traveling southward.

It is claimed by plaintiff, the surviving husband of the deceased, who is suing for himself and his minor children, that Mrs. Leblanc had crossed the highway from the east side and was walking near the edge on the west side thereof, going southward towards the church, when she was run into and struck by the auto defendant was driving. She was therefore, according to plaintiff’s contention, struck in the rear on the left leg by the auto, which it is not disputed was going in the same direction at the time.

The contention of the defendant, on the other hand, is that she came across the highway from the east, suddenly emerged from behind a car which was running northward in the opposite direction, and that when he first saw her she was about 15 feet ahead of him, running to the west side of the highway; that he immediately swerved his auto to the east to avoid striking her, but that she was so close when he first saw her that it was impossible for him to swerve sufficiently to the east to avert the collision; and that he accidentally struck her on the leg. It is therefore apparent, from the foregoing conflicting and contradictory contentions between the litigants, that a logical solution of the issue presented requires an analysis of the evidence to ascertain whether deceased had crossed- the highway to the west side and was going southward when she received the injuries alleged by plaintiff, which resulted a few days thereafter in her- death, as shown by the testimony of the physicians who testified in the case.

Only two witnesses, Noble Leblanc, son of the deceased, and the defendant, saw. the occurrence. Noble, who attained his fifteenth year the day after his mother’s death, testified quite at length in the case. He says that at about 6:30 or 6:40 in the morning they left their home in Baton Rouge to attend early mass at the Catholic Church. He says he failed to get an aunt, who was to go to church -with himself and his mother; that they, took the street car, got off, and at Erie street they walked across the Bayou Sarah road or highway from the east to the west side. They proceeded southward to the point where his mother was struck. This highway, the record shows, is about 24 feet wide, is paved in the center, and has graveled shoulders, about 6 or 7 feet wide, on each side. He says he was walking a few feet behind his mother- on the graveled shoulder on the west side when she was injured, and that she was walking on the west side of the pavement about 1% feet from the edge where it abuts the shoulder of the roadway. He testified his mother suffered with corns, and was wearing thin soled shoes, which is the reason that she was walking on the pavement, and that he was trailing behind her on the rocks and gravel of the highway, because his mother had so advised him as a precaution against the possible danger of injury from the autos that were running along the highway. . He testifies that he kept his eye on his mother as she was walking ahead; that she had walked about 20 steps on the pavement, when “he saw the light on the hack of her coat,” looked backward, and saw the car coming by which she was struck. He was asked if he had said anything to his mother when he saw this light in his rear; he answered he had not, because she was out of the way of the advancing car. As his head was turned backward, he says, he heard a scream; that he did not see when the car hit her, but heard the impact which resulted from the collision. At that time, he testified, he was about 3 feet behind his mother. He says he had his eye on her all the time, although he had stopped to tie his shoe, and testified that his position in tying his shoe did not prevent him from keeping his eye on his mother. If that boy had been trying to frame up a case on defendant, on his own initiative or by the influence of some one else, he never would have said that he had not actually seen the accident, or that he was looking at his mother, and at the same time was tying his shoe. Such a narrative as that, in our opinion, shows that he was testifying to what had occurred as he saw it. There is no inference, to I drawn from the recital of the facts or circumstances in the testimony of the witness, suggestive of any prevarication on his part.

Sam Barthe, a witness for plaintiff, testifies that he was on the east side of the highway when the collision occurred at a distance of about 250 feet from the spot where the deceased was struck. He fixes the time of the accident at about 6:30 or 6:40 in the morning, which coincides, it may here he stated, with the time of the occurrence, given by Noble Leblanc, the boy witness. He says the weather was fair and clear, as was also sworn to by the boy, and of which fact there appears to he no contradiction. He says he had been noticing a number of people going to church walking along the highway; that the deceased was walking on the pavement, about 3 feet from the edge, and that the boy was in her rear. He says he did not see when deceased was struck, hut that he heard the “bump” or crash. He admits that most all of the cars that were traveling on the highway had their lights on, including the defendant’s car, hut says there was then no necessity for these lights.

The testimony of this witness therefore corroborates the evidence of Noble to the effect that the accident occurred on the west side of the highway, while the deceased was going south in the same direction defendant’s car was moving, and that she was near the edge of the pavement when she was injured.

The preponderance of the evidence, and which unquestionably must have been accepted by the district judge as true, completely contradicts and destroys the evidence of defendant, when he says that the deceased came from the east side of the highway, suddenly emerged from behind a car that ,was going north, was running to the west side, when his auto struck her, although he had made every effort possible to pass east of her, and to thus avoid the accident. Defendant testifies that his view was unobstructed at the time, either by the lights of the automobiles or otherwise; that the windshield on his car was clean, and that its headlights were burning brightly. The fact is that he testifies that, under the “conditions existing that morning,” a person driving an automobile could “easily see a pedestrian at a distance of at least 200 feet.” He also stated that his headlights threw a glare of light “some way” on the sides of the roadway to the right and the left. As such were the conditions then existing, it is evident that, had defendant been exercising ordinary care, he could not possibly have failed to see the deceased as she was walking along the edge of that highway, and fully in time to have averted the collision. He says he was traveling between 25 and 30 miles an hour; this is possible, but not probable. Whether he was traveling at that speed or not, he was, in our opinion, grossly negligent at the time, as he could have easily passed to the east, where there was ample room, and that the accident was the result of careless or reckless driving.

Defendant’s counsel urges the point that the deceased was walking on the wrong side of the highway, and in violation of the regulations of our statutes on this subject. Even if she were, as defendant could have unquestionably avoided the collision, there is no legal excuse for his reckless act, to which deceased did not in any way contribute, which is also another defense urged by defendant, but not in the least supported by the evidence.

Under the circumstances of the accident hereinabove given, the deceased was also entitled to protection under the humane doctrine of the “last clear chance,” which has been frequently applied to cases of this character.

We find no error in the judgment rendered against defendant, from which he appeals, and it is therefore affirmed, with cost, for the reasons above stated.


author: REYNOLDS, J.

text:
    No. 3545
    Second Circuit
    EMBRY ET AL. v. EMBRY
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    (March 31, 1930. Judgment of Court of Appeal Reversed and Judgment of District Court Reinstated.)

      Moss & ■ Moss, of Winnfield, attorneys for defendant, appellant in rule, Mrs. Fannie P. Embry.
    E. L. Walker, of Ruston, attorney for defendant, appellee in rule, Jonesboro State Bank.
   STATEMENT OF THE CASE.

REYNOLDS, J.

By private act, dated September 6, 1917, and filed for record on November 19, 1917, and thereafter duly recorded, Mrs. Fannie P. Embry conveyed to her .son, R. J. E'mbry, certain lands situated in Jackson parish, Louisiana, not necessary to be described, for the recited consideration of—

“One thousand dollars, payable as follows: one thousand dollars cash, the receipt of which is hereby acknowledged, and the further consideration of the furnishing all things needful or necessary for the maintenance and support of the Mrs. Fannie P. Embry, as long as she may live, including food, clothes, medicines, nursing and all other attention, and a decent burial at her death.”

No privilege was retained or mortgage granted in the act to secure the performance of the obligations assumed by the grantee.

By authentic act, dated May 13, 1918, and duly recorded on the same day, both the mother and son mortgaged the land to the Federal Land Bank of New Orleans to secure the payment of a loan of $1,000.

By authentic act, dated December 17,1926, filed for record December 18, 1926, and thereafter duly recorded, R. J. Embry granted a mortgage on the land to secure the payment of a promissory note for the sum of $2,000, dated December 17, 1926, signed by R. J. Embry, drawn payable to the maker’s own order on December 1, 1927, bearing interest at the rate of 8 per cent, per annum from its date until paid.

This note and mortgage was thereafter acquired by the defendant, appellee in rule, Jonesboro State Bank, in due course of business.

Some time prior to November 7, 1923, Mrs. Fannie P. Embry instituted suit against her son, R. J. Embry, to rescind the transfer of the land by her to him for non-payment of the price, or, in the alternative, to recover the unpaid part of the price, and also to recover the value 'of certain chattels belonging to her that were on the land at the time of the transfer and which her son sold and kept the price of. The suit was duly tried and on November 7, 1923, judgment was rendered therein rejecting her demands. From this judgment she duly appealed suspensively to the Supreme Court, and that court, on May 23, 1927, rendered therein the following judgment:

“The judgment appealed from is annulled, and it .is ordered, adjudged and decreed that the plaintiff recover of and from the defendant one hundred and thirty dollars, with legal interest from judicial demand, November 5, 1923, and the further sum of fifteen dollars per month from the 23rd of August, 1923, and continuing as long as the plaintiff lives; the amount accrued to be collectible as soon as this decree becomes final, and the installments of fifteen dollars per month to be collected at the expiration of each month thereafter. The right is reserved to the defendant to elect, within thirty days from the date when this decree will have become final, whether to pay the amounts stated, or to rescind the sale dated the 6th day of September, 1923, and avoid payment of the foregoing judgment, by reconveying to the plaintiff, free of encumbrance, the farm bought from her, and by rendering and settling accounts with her according to the foregoing opinion. The defendant is to pay all costs of this suit.”

This judgment was filed for record in the mortgage records of Jackson parish on June 11, 1927, and thereafter was duly recorded therein.

R. J. Embry did not exercise the right of election granted him by the judgment, and, on. June 28, 1927, Mrs. Fannie P. Embry caused a writ of fieri facias to be issued upon the judgment to the sheriff of Jacks on parish, commanding him “that by seizure and sale of the property, real and personal, rights and credits, of Reuben J. Embry, in the manner prescribed by law, you cause to be made the sum of one hundred thirty dollars and no cents with legal interest from judicial demand, November 5, 1923, and the further sum of $15.00 per month from August 23, 1923, and also the sum of two hundred fifteen dollars and sixty five cents, costs, as well as your costs and charges,” in satisfaction of the judgment rendered by the Supreme Court.

Under this writ, the land transferred by the mother to the son was seized and advertised for sale by the sheriff.

Before the day of sale the defendant in execution, R. J. Embry, by petition filed in the suit, set forth that he was a married man and the head of a family, and that a certain 160 acres of the land was his homestead, and prayed that the 180 acres be appraised and offered for sale separately from the rest of the land seized, and that, if not more than $2,000 be bid therefor, it be not sold, and that, if more than that sum be bid therefor, he be paid $2,000 out of the proceeds of the sale in preference to the seizing creditor.

On this petition he obtained an ex parts order from the court commanding the sheriff to appraise and sell the land claimed as a homestead separately from the rest of the land seized, and not to sell it unless more than $2,000 was bid therefor, and that, if he sold it, to retain $2,000 of the price in his possession untiL the further order' of the court. .

To this petition the mother filed an answer alleging that the debt for which the property was seized represented part of the purchase price thereof, and that tor that reason the property was not exempt from seizure or sale under the homestead law, and she prayed that the ex parte order be rescinded and the petitioner’3 claim disallowed.

On hearing of the issue raised by the petition and answer, judgment was rendered and signed on January 12, 1928, rescinding the ex parte order and denying the claim of a homestead exemption. From this judgment the execution debtor took a suspensive appeal to the Supreme Court.

Pending this last mentioned appeal, to-wit, on September 6, 1928, Mrs. Roxie Embry, wife of the execution debtor, R. J. Embry, instituted suit against him in the district court of Jackson, parish to obtain judgment against him of separation from bed and board and a partition in kind of community property. In that suit the property under seizure was inventoried as community property.

An answer was filed by the husband putting at issue the allegations of the wife’s petition, and, after trial, judgment was rendered, on October 24, 1928, decreeing, among other things, a separation from bed and board between the spouses, and ordering the sheriff to sell the community property, and out of the proceeds of sale first pay “the costs of this suit, together with the cost of the said sale, and, as a part of said costs, attorney’s fees of one hundred dollars to H. W. Ayres and one hundred dollars to J. W. Elder. That the land inventoried * * * be sold separately, subject to the mortgage of the Federal Land Bank, and there shall thereupon be applied to the payment of the mortgage of the Jonesboro State Bank on said land the sum of sixteen hundred and twenty dollars, and the remainder, if any, to Mrs. F. P. Embry.”

Pursuant to this judgment, the sheriff sold the land on December 1, 1928, for $1,951, subject to the mortgage of the Federal Land Bank.

The net proceeds of the sale being insufficient to satisfy both Mrs. Fannie P. Embry’s judgment against R. J. Embry or a balance of $1,620 owing on the $2,000 note secured by mortgage on the land owned and held by Jonesboro State Bank, the sheriff had them ruled to show cause “why the conventional mortgage held by the Jonesboro State Bank and the judicial mortgage held by Mrs. Fannie P. Embry * * * should not be erased and cancelled from the mortgage records * * * insofar as affecting the real estate described in said application, and why they, the said Jonesboro State Bank and the said Mrs. Fannie P. Embry, should not be relegated to the proceeds of the sale of the said property. * * *”

Both defendants in rule answered the rule and set up their respective mortgages, and prayed that their mortgage, respectively, be ordered paid by the sheriff out of the funds in his hands in preference to the mortgage of the other.

By agreement of both defendants in rule the rule was made absolute, and the sheriff ordered to cancel on the record, insofar as they affected the land sold, the conventional mortgage owned by the Jonesboro State Bank, and the judicial mortgage owned by Mrs. Fannie P. Embry, to accept the $1,951 bid for the property by the successful bidder, and to retain $1,620 of the amount in his possession pending final adjudication of the question whether the Jonesboro State Bank or Mrs. Fannie P. Embry was entitled to be paid by preference to the other out of the fund, and that the balance of the $1,951 be applied by him to the payment of the costs of suit.

Both the Jonesboro State Bank and Mrs. Fannie P. Embry answered the rule to show cause, and each demanded to be paid his mortgage debt out of the fund in the sheriff’s possession in preference to the other.

Mrs. Embry based her claim to preference on the grounds:

•(1) That her judicial mortgage represented a balance of purchase price owing on the property the sale -of which produced the fund.

(2) That, in the month of September, 1923, she instituted suit against R. J. Embry to annul the sale for noncompliance by him with the conditions of the' sale, or, in the alternative, to recover the purchase price, and that, though her demands were rejected by the district court, the Supreme Court had annulled that judgment, and rendered judgment in her favor.

(3) That the Jonesboro State Bank well knew, before it acquired the note secured by its conventional mortgage, that R. J. Embry had purchased the property from her and the conditions on "which the transfer had been made, and that he had failed- to comply with those conditions, and that a suit by her against him to annul the sale for failure of consideration was then pending and undetermined.

The Jonesboro State Bank based its . claim to preference on the ground that its conventional mortgage was duly recorded several years before Mrs. Embry’s judicial mortgage was filed for record.

On trial of the issue of preference judgment was rendered that the Jonesboro State Bank was entitled to be paid its mortgage debt, in preference to Mrs. Embry, by her judicial mortgage debt, and Mrs. Embry appealed.

OPINION

It is contended by counsel for appellee, in brief, that the judgment rendered by the Supreme Court was a money judgment, that the mortgage resulting from its recordation did not relate back to the date of the filing of the suit in which it was rendered, and that, inasmuch as appellee’s conventional mortgage was recorded long prior to the registry of the Supreme Court’s judgment, no right acquired by appellant in virtue of that judgment could prime its mortgage.

And counsel cites articles of the Constitution^ and of the Civil Code and decisions of the Supreme Court in support of the contention that mortgages become effective quo ad third persons only from the moment of their being filed for registry, and that notice of their existence obtained otherwise than from their being filed or registered is not binding on third ■persons.

The authorities cited by counsel are not applicable to this case, for the reason that the transaction between mother and son was not a sale, but an onerous donation, and the decree of the Supreme Court not a money judgment for balance of purchase price, but a declaration in terms of money of the consideration for the donation. The transfer expressed this consideration in terms of personal service to be rendered by the son to the mother. The decree enabled him to discharge with money, - if he so elected, the rendition of the services.

Article 2439 of the Civil Code defines a sale as an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.

Part of the price was not money, but "all things needful or necessary for the maintenance and support of Mrs. Fannie P. Embry as long as she may live, including food, clothes, medicines, nursing and all other attention, and a decent burial at her death,” the money value of which was not fixed. The fact that the transfer recited that part of the consideration for it was $1,000 in money, and that the amount had been paid, was not sufficient we think, to constitute the transaction a sale. Not being a sale, it could only have been an onerous donation.

Article 1559 of the Civil Code provides that donations may be revoked or dissolved for nonperformance of the conditions imposed on the donee, and article 1567 that, in case of revocation or rescission on account of the nonexecution of the conditions of an onerous donation, the donated property shall return to the donor free from all incumbrances thereon created by the donee. Baker vs. Baker, 125 La. 969, 52 So. 115.

That R. J. Embry did not comply with the conditions on which the property was transferred to him is not disputed, and is established by the judgment of the Supreme Court.

Persons accepting onerously donated property as security for debt are chargeable with knowledge from the mere nature of the act of transfer that the do-nee’s title is precarious and subject to be revoked and resumed by the donor, if the conditions of the donation are not performed, and that they are liable in such event to lose their security. It follows therefore that Mrs. Embry was entitled to the fund in the possession oí the sheriff in preference to the Jonesboro State Bank, and that the judgment appealed from is erroneous.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and, it is now ordered, adjudged and decreed that defendant in rule and appellant here, Mrs. Fannie P. Embry, is entitled to receive the fund of $1620 in the possession of Neil Thomas as sheriff of the parish of Jackson to the credit of this proceeding by preference over the defendant in rule and appellee here, Jonesboro State Bank, after payment out of the said fund of the costs of the proceeding on the rule.

It is further ordered, adjudged and decreed that the said Neil Thomas as such sheriff pay the costs of the proceeding on this rule out of the said fund of $1620 in his possession, and that he pay over to Mrs. Fannie P. Embry the balance of said fund.


text:
    No. 3556
    Second Circuit
    REITZELL ET AL. v. LOUISIANA CENT. LUMBER CO.
    (December 31, 1929. Opinion and Decree.)

      William H. Mecom, of Columbia, and Moss & Moss, of Winnfield, attorneys for plaintiffs, appellants.
    Stubbs & Thompson, of Monroe, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiffs sold to R. C. Cruse certain timber growing on certain lands by authentic act, so much of which as is important here reads as follows, to-wit:

'“It is agreed, contracted and understood, that the said purchaser, R. G. Cruse, his heirs and assigns, shall have the full period of two years from the date hereof, to cut, haul and remove said timber from the lands above described, together also, with free ingress and egress for all laborers, wagons, teams and other useful and necessary means and facilities for the cutting, hauling and removing said timber. * * *

“Done and passed at my office, in said parish of Caldwell, in presence of J. H. Pierce and E. L. Kraft, competent witnesses, on this the - day of December, A. D., nineteen hundred and twenty five (1925).”

The act.was filed for record on April 6, 1926, and duly recorded on April 7, 1926, in the proper record.

Plaintiffs allege that they sold the timber and executed and delivered the deed to Cruse on December 12, 1926, and that by error and inadvertence the word “twelfth” or its equivalent was omitted from the-act after the word “the” and before the word “day,” in dating it.

That between December 15, 1927, and December 23, 1927, tho Louisiana Central Lumber Company cut and removed 125,000 feet of the timber of the value of $1,750 notwithstanding plaintiffs had warned it that it was without legal right to do so.

. They allege that the Louisiana Central Lumber Company’s act in cutting and removing the timber was a trespass and damaged them in the amount of $1,750, and they prayed judgment against it for that sum, with legal interest thereon from June 7, 1928.

The defendant admitted cutting and iemoving the timber, and that it was done .during the time plaintiffs alleged, but denied that it was done wrongfully, and alleged that, on ■ the contrary, it owned the timber and had the right to cut and remove it when it did so; that by contract with Cruse, entered into on October 22, 1927, it acquired title to and possession of the timber together with the time in which to cut and remove it granted him by plaintiffs; and that by authentic act, dated December 31, 1927, filed for record January 2, 1928, and recorded on January 3, 1928, in the proper record, Cruse formally transferred the property to it, but that this latter act was merely confirmatory and evidential of the transfer of October 22, 1927.

The defendant further alleged that its purchase of the timber from Cruse was made on the faith of the public records and in ignorance of the claim asserted by plaintiffs in this suit; that these records showed that plaintiffs had given Cruse two years’ time from December, 1925, in which to cut and remove the timber; that plaintiffs intended and Cruse understood by the deed that the running of the time should begin from the end of and not from any day during the month; that neither the twelfth nor any other date was inadvertently omitted from the act, but that, if it was, it could not now be asserted by plaintiffs to the prejudice of defendant.

. The defendant further alleged that, even were it true that the twelfth had been inadvertently omitted from the deed, the deed could not be reformed in the absence of Cruse, who was not a party to the suit.

On these issues the case was tried and there was judgment rejecting plaintiffs’ demand and dismissing their suit, and they appealed.

OPINION

Plaintiffs granted Cruse two years’ time in which to cut and remove the timber, and the question we have to determine is whether that time began to run from the end of the month of December, or from the 12th day of that month.

Plaintiffs contended that the sale from them to Cruse was actually executed and delivered on December 12, 1925, and that the running of the two years began from then, and they were permitted, over defendant’s objection, to introduce proof tending to show that the sale was executed and delivered on that date.

In our opinion, the evidence was incompetent and should have been excluded, and we will not consider it. Its purpose and effect was to establish something beyond or against the sale, in violation of article 2276 of the Civil Code, which says:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

The time allowed Ciuse to cut and remove the timber began from the date of the sale. The date of the sale was “the --- day of December, A. D., nineteen hundred and twenty five (1925).” There is as much reason to presume that the parties to the act intended by these words to say the time should run from the end of the month as that they intended thereby to say that it should run from the beginning of the month, or from some day during the month. If, as contended by defendant, it was intended that the time should begin running from the end of the month, that intention was as well expressed in the deed as if the figures and letters “12th” had been inserted after the word “the” and before the word “day” in the deed; “the - day” expressed the intention clearly.

But if there were any doubt whether the plaintiffs intended the time to run from the end of the month, that doubt would have to be resolved against them, since:

“The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.” Civil Code, art. 2474.

And because:

“In a doubtful case the agreement is interpreted against him who has contracted the obligation.” Civil Code, art. 1957.

And also for the reason that:

“But if the doubt of obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.” Civil Code, art. 1958.

But if it were conceded that the sale was executed and delivered on December 12th, this would not further .plaintiffs’ contention, because no evidence was introduced or offered tending to prove that the omission of the day of the .month was an inadvertence. Non constat its omission was intentional. And if it had been offered it must have been excluded for the reason that Cruse was not a party to the suit, and he was a necessary party to any suit seeking to reform the deed.

In Adams vs. Drews, 110 La. 456, 34 So. 602, syllabus 2 reads as follows:

“Whilst an error in the description of real estate may be corrected as between the parties to the act in which it appears, a different case presents itself after a third person, acting in good faith, acquires rights with respect to the property as erroneously described. The error cannot be corrected to the prejudice of such rights.”

In Bender vs. Chew. 129 La. 849, 56 So. 1023, 1024, syllabus 6 reads as follows:

“Courts do not favor actions for remodeling deeds to better express the intent of the parties to the deed, when the rights of innocent third persons have intervened.”

Under the law'and the evidence the judgment appealed from is correct, and therefore it is affirmed.