text:
    No. 9517
    Orleans
    GAUTHIER v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD, ET AL.
    (January 17, 1927. Opinion and Dercee.)
    (January 31, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Education—Par. 19.
    A teacher can not be appointed in the public schools of the state without a certificate from the State .Board of Education.
    2. Louisiana Digest — Education—Par- 6, 19.
    Under Section 20 of Act 100 of 1922, the parish school board must select teachers from nominations made by the parish superintendent, and this authority cannot be delegated to the superintendent.
    3. Louisiana Digest — Obligations—Par. 51.
    Contracts made in violation of a prohibitory statute are void.
    Appeal from the Twenty-eighth Judicial District Court, Parish of St. John the Baptist, No. 814. The late Hon. H. M. Gautier, Judge.
    Action by J. Folse Gauthier against St. John the Baptist Parish School Board, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    P. E. Edrington, Jr., of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit by J. F-olse Gauthier against the St. John the Baptist Parish School Board and Lubin F. Laurent, its superintendent and secretary, in solido, for one thousand and eighty and 00-100 ($1080.00) dollars, claimed to be due under an alleged contract of employment, made between the said Gauthier and the School Board through its superintendent and secretary, whereby plaintiff was employed to teach school as principal of the Frisco School at one hundred and twenty and 00-100 ($120.00) dollars per month for a term of nine months.

The plaintiff alleges that he was first offered by letter the position of principal of the Garyville School at a salary of one hundred and thirty-five and 00-100 ($135.00) dollars per month, but subsequently was informed by letter from Superintendent Laurent that in looking over his application he, Laurent, found that plaintiff had no actual experience in teaching' and, therefore, could not be placed. A smaller school was offered him at the reduced salary of one hundred and twenty ($120.00) dollars per month, for which the superintendent enclosed a contract, providing for the principalship of the Frisco School. These letters are attached to plaintiff’s petition.

Plaintiff further alleges that upon receipt of the letter and contract, and in the presence of two witnesses, he signed his acceptance of said contract, and on August 22, 1922, he mailed said accepted contract to Lubin F. Laurent, superintendent, addressed to Edgard, Louisiana, and that in due course said contract was received by said School Board, and the same was in possession of said board; that, in compliance with s^id contract, he left his home and went to St.’John parish and secured a boarding place near the Frisco School, and that on September 9, 1922, at a Teachers’ Institute, he was verbally notified by Lubin F. Laurent, superintendent, that he had been transferred to the Lucy School, on the opposite side of the Mississippi river; that he protested that this was a violation of his contract, because the Lucy School was an inferior school in an undesirable locality, and refused to accept said transfer.

He further alleges that he is informed, and believed that after his contract was received by Mr. Laurent, that the superintendent entered into a second contract with A. E. Work for the same position (principal of the Frisco School).

That, as a result of the violation of said contract, he is entitled to one thousand and eighty ($1080.00) dollars, salary that he would have earned under said contract for the term of nine months from the St. John Parish School Board; and if the court finds that Laurent was unauthorized to contract with plaintiff, then that Laurent be individually held liable for said amount.

Laurent filed an exception of no cause or right of action.

The record is silent as to what action the court took with reference to this exception, and no judgment of any kind appears to have been rendered thereon.

The School Board and Laurent filed a joint answer. The School Board denied generally the allegations of plaintiff and specially denied that Laurent was authorized to make any offer of employment to the plaintiff herein, and if such offer of employment was made that same was without right of authority insofar as the School Board was concerned, and averred that, the contract referred to by plaintiff was never returned or" received by it, and, in fact, that no contract had ever been made with the plaintiff by the School Board to teach at the Frisco School. It admitted, that at the Teachers’ Institute held on Sepember 9, 1922, plaintiff was notified that the School Board had accepted his application to teach in the schools of St. John parish, and that he had been assigned to the Lucy School, but denied that there was any violation of any contract, because the School Board was the only body authorized by law to enter ■ into any contract for the employment of teacherCi and the superintendent of schools was never at any time authorized to enter into contracts with teachers, and that the sole authority of the superintendent of schools was to recommend the appointment of teachers to the School Board; that the School Board may, or may not, employ the parties thus recommended, but may, under the law, employ parties, who are not recommended by the parish superintendent.

The School Board further answered that •the only school to which the plaintiff was ever assigned was the Lucy School; that the application filed by plaintiff did not designate any particular school at which he desired to teach, and that, acting upon said application, the board assigned plaintiff to the Lucy School, as it had a right to do, and it particularly denied that it at any time contracted with plaintiff to teach at the Frisco School or any other school except the Lucy School.

It further answered that the superintendent was merely authorized to receive applications from various parties who had decided to teach in the various schools located in the Parish of St. John the Baptist, but that the superintendent was without right or authority to contract with anyone to teach at the various schools; that the right to accept the application is, under the law, vested exclusively in the School Board, and that the • only action taken on plaintif’s application to teach was to assign him to the Lucy School; that' plaintiff, having refused, failed and neglected to accept said appointment, it was necessary for the board to designate another teacher in his place, and that, therefore, there is no liability for any breach of contract as between the board' and plaintiff.

Defendant, Laurent, denied all liability.

There was judgment' against the plaintiff and in favor of the School Board and Laurent, rejecting his demand as to the board and nonsuiting him as to Laurent, and from this judgment plaintiff has appealed.

• Plaintiff’s evidence consists of his own testimony and documentary evidence, together with the testimony of A. E. Works, a fellow-teacher. Plaintiff swears that, on August 16, 1922, he received a letter from Mr. Laurent, superintendent of schools of St. John the Baptist parish, offering him the principalship of the Garyville School at one hundred and thirty-five ($135.00) dollars per month; that he replied, accepting the position, and that on the 22nd of the same month he received another letter from the superintendent advising him that in looking over his application he found that plaintiff had had no actual experience and, for that reason, he could not give him the Garyville School at such a salary, but that he had a three-room school that he could give him at one hundred and twenty ($120.00) dollars per. month, and enclosing a contract for him to sign.

He testified that the letter contained a contract in printed form, duly signed by Superintendent Laurent, covering principal-ship of the Frisco School in the Sixth Ward of the Parish of St. John the Baptist at one hundred and twenty ($120.00) dollars per month, for a nine months’ term; that, after making inquiry concerning the location and character of the Frisco School he. signed the contract at Bordelonville in front of his mother and brother-in-law, and returned it to Mr. Laurent by mail, addressed to him at Edgard.

The mother and brother-in-law, however, were never called as witnesses to substantiate this statement.

He further testified that he was subsequently notified to appear at a Teachers’ Institute to be held at Reserve, September 9, and that at that time he was then notified verbally for the first time by Mr. Laurent that he had been assigned to the Lucy School.

Gauthier testifies at page forty of the transcript that at the time he made application to be appointed as a teacher in the St. John schools he did not have a first-grade certificate of the State Board of Education, but that he had a diploma of the State Normal School, which gave him the right to teach in any elementary school in. the state, and he could get it if it was needed. Though he admitted that his Normal diploma was not a certificate, he contended that it was better than a certificate.

There is a first-grade certificate in the record, dated June 19, 1922; it does not appear to have been filed by the clerk of court, either offered in evidence, or identified in any part of the transcript and, therefore, it cannot be considered by the court. There is also a diploma in plaintiff’s name from State Normal School, dated May 29, 1922.

The plaintiff also admitted that he had no certificate of any kind from the State Board of Education on June 11, 1923.

Plaintiff’s other witness is Mr. A. E. Works, the teacher who was assigned to the Frisco School, who swears that at the Teachers’ Institute referred to in Mr. Gauthier’s testimony, he met plaintiff for the first time; that Mr. Laurent was trying to get either the witness or the plaintiff to withdraw from their contract and go to the Lucy School, and that he stated in the presence of the witness that Mr. Gauthier’s contract referred to the Lucy School; that Mr. Laurent said that he had made a mistake and had assigned both him and the plintiff to the Frisco School and wanted one of them to take the Lucy School, and that the witness told Laurent that he would go to Lucy under certain conditions, one of which was that he was to get an increase of fifteen. ($15.00) dollars per month in salary.

The record contains the original letters referred to in the testimony and the written application signed by the plaintiff, in which he states that he is open to any appointment in the Parish of St. John the Baptist. However, he failed to answer the questions contained in the printed, application form as to the grade of his certificate, the date of the certificate and the authority from which it issued to him.

A printed contract signed by A. E. Works, marked' P-5, is also in the record, in order to prove that the contract signed by the plaintiff was identically the same as the contract of Mr. • Works, except that the blanks had been filled to conform to new agreement. There is also in the record a general notice to the teachers of the date of the opening of the schools on September 11, 1922, and of a Teachers’ Institute to be held on September 9, 1922, two days prior to the opening.'

The teachers are advised in this notice that they must hold valid teachers’ certificate issued' by the State of Louisiana, with a notation in lead pencil, “your school has been changed to the Lucy School. Lucy is just below Edgard and can be reached by the T. & P. at the Edgard station. L. F. L.”

There is also in the record the graduation certificate of the plaintiff from the State Normal College, dated May 29, 1922, which was offered in evidence, and-a first-grade certificate, dated June 18, 1922, issued by the state superintendent of education, which was never offered.

The minutes of the School Board of St. John the Baptist Parish, dated September 5,- 1922, show that Mr. Gauthier was appointed to the Lucy School, Mr. Works to the Frisco School.

Mr. Abadie, the president of the St. John School Board, with a witness for the defendant, testified that he knew nothing about a contract between Mr. Gauthier and' the School Board; that the School Board had, on July 6, passed a resolution authorizing the superintendent to sign contracts with teachers, after he had furnished a list of different teachers for the different schools and after the board had approved the list; that Mr. Laurent had no general authority to make any contract with the teachers without first presenting their names to the School Board for approval, and that the onlyi action of .the School Board relative to the plaintiff’s application to teach was taken by. the School Board at its meeting on September 5, when plaintiff was assigned to the Lucy School; that the School Board at no time entered into any contract with Mr. Gauthier to teach at the Frisco School.

Mr. Abadie’s testimony is corroborated by Mr. Alexander, vice-president of the School Board, who; testified that the usual way of engaging teachers was by sending them a blank application to fill, which is then approved. Only then the superintendent is authorized to sign the contract, and the plaintiff was never employed by the Board to teach at the Frisco School, but that he was assigned to the Lucy School.

The testimony of Mr. Abadie and Mr. Alexander is further corroborated by Mr. C. J. Tassin, another member of the School Board, who testified that the superintendent was never authorized to make any contract with teachers without the consent and approval of the board. Upon the trial of the case there was offered in evidence a resolution of the School Board, datéd July 6, 1922, authorizing the superintendent to employ teachers for the coming year.

Lubin F. Laurent, the joint defendant in this case, who was called as a witness under the cross-examination individually and as secretary of the School Board, testified that he wrote the letters filed in the record, but denied that he ever sent the plaintiff any signed contract; that the blank form of contract which he enclosed to Mr. Gauthier was never returned to the board or to himself by Mr. Gauthier. He admitted that he had sent a notice to Gauthier, the plaintiff, to come to Reserve to the Teachers’ Institute, and that in response thereto Gauthier appeared, and he then explained to him that he had been notified that the school to which he had been assigned was the Lucy School and not the Frisco School.

Laurent denied that he admitted to Gauthier and Works that he had two contracts signed for the Frisco School, and said that he notified Gauthier to come to the Teachers’ Institute, because in Gauthier’s application he had stated that he was open to any appointment in the parish.

The record contains much evidence upon disputed questions of fact, but we do. not fin,d it necessary to pass upon the questions, because in our opinion the law clearly prohibits plaintiff’s recovery.

The controlling law in the case is found in Act 100 of 1922, which prescribed in detail the duties of Parish School Boards.

' The following parts of this act are pertinent :

(Sec. 8.) “The State Board of Education shall have entire charge of the examination and certification of public school teachers.”

(Sec. 20, Pars. 1 and 2.) “The Parish School Board shall determine the number of schools to be opened, the location of the schoolhouses, the number of teachers to be employed, select such teachers from nominations made by the parish superintendent, provided that a majority of the full membership of the board may elect teachers without the endorsement of the superintendent. The board shall have authority to employ teachers by the month or by the year, and to fix the salaries of the teachers. The board shall see that the provisions of the state school laws are' complied with.

“Each school board is authorized to make such rules and regulations for its own government, not inconsistent with the law or with the regulations of the Louisiana State Board of Education, as it may deem proper. The regular meetings of each board shall be held in the first week of January, April, July and October, on such day of the week as each board shall select, and it may hold such special or joint meetings as the board may determine or as occasion may require.

(Sec. 42) “All teachers’ certificates are revocable by the State Board of Education upon satisfactory evidence that the holders are incompetent, unworthy or immoral.”

(Sec. 49.) “No person shall be appointed to teach without a written contract for the scholastic year in which the school is to be taught, and who shall not hold a certificate, provided for by this act, of a grade sufficiently high to meet the requirements for the school, and it is made the duty of the parish superintendent of schools to ascertain definitely before contracting with a teacher that such teacher holds a certificate issued by the Louisiana State Board of Education.”

(Sec. 56.) “Teachers now holding certificates which are in force and which were heretofore issued as the result of an examination held under the authority of law shall not be required to undergo an examination under the provisions of this act, but such certificates are continued in force for their respective grades and for the time provided for goes into effect no person shall be appointed as teacher in the public schools of the state unless he or she holds a proper certificate.”

It is thus seen that the law is mandatory to the effect that the Parish School B/>ard shall select teachers from nominations made by the parish superintendent, and we do not believe that this duty can be delegated to the parish superintendent.

If this official did send the purported contract signed by him to plaintiff herein (a fact upon which the proof is by no means conclusive) and if plaintiff did sign and return the document, it can have no legal significance, because it is violative of Section 20 of the School Law.

Although plaintiff did not have the certificate of the State Board of Education, which is specifically required by Sections 49 and 52 above quoted, he contends that he has the equivalent, namely, a diploma from the State Normal College, and this document which was offered in evidence by plaintiff does say that “it entitles the holder to a State Teacher Certificate”. To sustain this contention would be to violate the whole tenor of the act and permit the parish superintendent to substitute his will for that of the legislature, thereby nullifying the specific prohibition of Section 56, which reads: “After this act goes into effect, no person shall be appointed as teacher in the public schools of the state, unless’ he or she holds a proper certificate.”

The legislative intent must be taken as expressed in the words which the legislature has used.

State vs. -McElroy, 44 La. 796, 11 South. 133. “Where the law is clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing the spirit.”

Gooden vs. Lincoln Parish, 122 La. 75, 48 South. 196.

Flanagan vs. New Orleans, 9 Orleans Appeal 19.

Where the law is clear in its provisions it cannot be changed by a ruling of court.

Conery vs. Creditors, 113 La. 420, 37 South. 14.

For the above reasons the judgment is affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 710
    First Circuit
    TOLLE v. GRAHAM
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Builders and Buildings — Par. 18, 30.
    The burden of proof is on the plaintiff as contractor to prove an account of extra work and extra material furnished on a job.
    2. Louisiana Digest — Appeal—Par. 625; Builders and Buildings — Par. 29.
    The finding of the trial court on a matter of fact, namely, that there was no extra work ordered on a construction job, being clearly correct, is affirmed.
    Appeal from the District Court, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Albert Tolle against Mrs. A. A. - Graham.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.
    J. J. Jackson, of Hammond, attorney for defendant, appellee.
   ELLIOTT, J.

Action by contractor to recover on account of alleged extra work and material furnished on a job.

Albert Tolle alleged in an original petition that he had erected a residence for defendant, Mrs. A. A. Graham, under a contract. That he had received from her on that account $1000.00, leaving a balance of $387.37 due under the contract. He annexed to and made part of his petition an itemized account showing materials furnished and labor performed on said work amounting to $1387.37. In response to prayer for oyer of the contract he alleged by an amendment to his petition that the material was furnished and the work was done, not in erecting, but in 'repairing and painting defendant’s residence. That the repairs consisted of re-roofing her dwelling house and in painting and repairing the porch at a cost of approximately $1000.00. That he erected for her, in addition, a wood shed and garage, repaired screens, decayed cornices and sills; which additional work, amounting to $387.37, was extra work, and the material furnished for that purpose extra material not provided for in the original contract.

Plaintiff’s demand as amended is solely on account of extra work and extra material furnished for extra work not provided for in the original agreement.

The defendant answering, denied being indebted to the plaintiff, and that the erection of the wood shed, garage, repairing screens, windows, decayed cornices and sills was extra work. She alleges that same was part of their original and only agreement, entered into between them, in 'which plaintiff agreed and bound himself to do all the work for $1000.00, and'that said sum had been paid to him.

The first trial resulted in the rejection of plaintiffs demand. A new trial was granted on plaintiff’s allegation on newly discovered evidence. After a new trial plaintiff’s demand was again, refused and he appealed. The alleged new evidence has very little weight. It consists of two employees working for plaintiff and employed on defendant’s work; one of them called on plaintiff with a bill for the amount demanded in this case; but his version as to what defendant said as her reason for refusing to pay it adds very little weight to plaintiff’s case. Their evidence must have been known to thp plaintiff at the time of the first trial and was not thought worth while; in fact, it was not. The plaintiff and the defendant are the only two witnesses in the agreement entered into between them. We have considered and taken into account all the supporting facts and evidence- on which plaintiff depends and are not convinced that he should recover anything. His testimony about his right to demand from defendant the amount sued for as extra work and for extra material furnished is uncertain and indefinite and short of the point. The work was done in 1923, and this suit was not filed until January, 1926., Defendant testifies very definitely that the agreement was that she could pay only $1000.00 and no more. That for this $1000.00 plaintiff -undertook and bound himself to repair and paint her dwelling, all as was done, and to reconstruct her wood and wash shed, making it large enough for wood and to wash under, and to hold, in addition, an automobile, all for the $1000.00 which she paid him immediately upon complétion of the work. The burden of proof is. upon the plaintiff. His demand was properly refused.

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


author: MOUTON, J.

text:
    No. -
    First Circuit
    CLARK v. ALFORD
    (February 12, 1927. Opinion and Decree)

      (Syllabus •by the Editor)
    1. Louisiana Digest — Prescription — Par. 107.
    Under Article 3538 of the Civil Code the balance due on an open account is prescribed by three years.
    2. Louisiana Digest — Payment—Par. 11.
    Where payment is made on an open account with cotton, which was not sold by the payee until two years later at a smaller price, the payment was made at the price of the cotton at the time •' ' delivered, the delay in the sale of the cotton being due to no fault .of the one wh.o made the payment.
    Appeal from the Parish of St. Helena. Hon. Columbus Reid, Judge.
    • Action by W. L. Clark, Jr., against W. C. Alford.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Purser & Magruder, of Amite, attorneys for plaintiff, appellant.
    Robert Carter, of Greensburg, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that he sues for the sum of $207.87, balance due on an open account, beginning February 20, 1920, closed June 20, 1922, for money advanced at divers times and for overpaid balances on shipments of cotton during the year 1922.

Defendant first interposed the plea of prescription of three years as a bar to the demand; and thereafter filed an answer in which .he pleaded payment after making due reservation of his plea of prescription. The district judge rejected the demand, and without saying on which of the. two defenses he rested his judgment. A motion filed for a rehearing indicates, however, that the judgment rendered below was grounded on the plea of prescription..

The petition of the plaintiff is misleading, as it is therein alleged that the balance claimed is on a running account which began February 20, 1920, and closed June 20, 1922. The account, which is annexed to the petition, shows that the suit is for $100.00 loaned defendant February 20, 1920; $30.00 loaned July 13, 1920; and an item of $96.35 for ties and bagging in an invoice of July 16, 1920. Against the total of the foregoing items the account recognizes a credit in favor of plaintiff for $8.56 of date January .31, 1920. In what plaintiff terms closing his account, he strikes as of June 20; 1922, a balance in his favor of $207.87, including interest. There is, however, on the account no item for money loaned on articles sold after the date to which we have hereinabove referred, that is, July 16, 1920. The proof shows that in the latter part of 1919 defendant had consigned two bales of cotton to plaintiff for sale, one weighing 546 pounds and the other 585. Plaintiff sold one of these bales at 40 cents, which was applied to his account at that time, leaving ■a balance of $8.56 in his favor. Plaintiff sold the other bale in June, 1922, for $48.00, and applied the sum so received to the items which were advanced defendant to July 16, 1920, as above stated; and in closing his account plainitff struck a balance as of June 20, 1922, because of the application by him of the $48.00 received at that time for that hale of cotton. Defendant testified that, in 1920, he directed plaintiff to sell the hale that was left over) which the evidence shows would then have been amply sufficient to pay his account in full; that he told plaintiff if he did not follow his instructions and sell that hale, he would consider him paid for his advances. In this respect he is corroborated by the testimony of a witness who heard the conversation between defendant and plaintiff on this subject. It is therefore obvious that when plaintiff sold that cotton in June, 1922, and appliéd the amount received for it to the account of defendant, it was without the latter's knowledge and consent. As we have before stated, for the foregoing reasons the petition is misleading when it alleges that the balance claimed was for advances at divers times and for overpaid balances on shipments of cotton during the year 1922.

The last item on the account was for money loaned, ties and bagging sold on July 16, 1920.

This suit was brought in June, 1924, nearly four years from the last item carried on the open account sued upon. The account being for money lent and advances made, was prescribed in three years. C. C. Art. 3538. As there is n,o plea or evidence to show that the account was in any way acknowledged so as to interrupt prescription or to take it out of prescription, the plea should have been maintained.

Besides it is shown that had plaintiff obeyed the instructions of defendant to sell the cotton at the time they were given, the proceeds which would have been received at the prices then prevailing would have .been more than sufficient to pay the account. Instead of following these instructions plaintiff allowed about two years to elapse, and then sold at 18 cents a pound, .and got only $48.00 for the cotton. Plaintiff was told by defendant that if he did not then sell he would consider him paid for his account. If plaintiff had complied with these instructions he would have been more than paid, and it must therefore he held if his claim was not satisfied it was the result of his own fault, and that defendant is entitled to he sustained in his plea of payment.

The judgment is correct on either of the two pleas.


text:
    No. -
    First Circuit
    HOLLIER v. N. O., T. & M. R. R. CO.
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 84, 87.
    A contract for widening a railway em.bankment which was cancelled ,by a letter specifying other conditions which the contractor accepted, will have no effect as against the -stipular tions contained in the letter. . .
    • Appeal from Calcasieu Parish. ’ "Hon'. Jerry Cline, Judge.
    . Action by R. M. Hollier against New Orleans, Texas and . Mexico . Railway Com; pany. ■ .
    ' There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    W. C. Perrault, of Opelousas, attorney for plaintiff, appellant.
    Powell & Lecompte, of De Ridder, and George Janvier, of New Orleans, attorneys for defendant, appellee.
   MOUTON, J.

■ Duplechein and Richards were allotted embankment work by defendant company between mile posts 544 and 614 which plaintiff alleges was in violation of a contract he had entered into with the company. He complains that the company by thus violating the contract he had with it, has deprived him of a profit he would have realized on his contract amounting to $300.00, for which he sues. His demand was rejected. October 11, 1922, plaintiff entered into a contract with defendant company for the widening of its railway 'embankment from mile posts 600 to 610 to 616, 616 to 623.6 and from 623.6 to 625.6. This contract was cancelled by letter of defendant company and its cancellation was accepted by plaintiff.

In his petition plaintiff alleges that under the terms of a contract he had made with the defendant company on January 28, 1924, he had obligated himself to widen the embankment of the company from mile post 544 to 600 for which he was to secure 28c per cubic yard, less 10 per cent to be retained by the company until the termination of the contract to cover indebtedness he might incur and for which the company might be liable. Plaintiff avers further that by a letter written by C. J. Kirkpatrick, chief engineer of the company, dated July 12, 1924, and which was accepted by plaintiff, that the contract he had entered into with the company on January 28, 1924, before mentioned, had been “altered insofar as to extend the area over which the work was to be done to mile post 614 and to change the compensation due the contractor from 28c per cubic yard to 32c per cubic yard, which supplementary contract is evidenced by letter of July 12, 1924”. The defendant company in answer avers that under the terms of the contract of January 28, 1924, plaintiff was to widen the road embankment between mile posts 544 and 560 at the rate of 28c per cubic yard with the understanding that the company was to retain 10 per cent for future possible liabilities of the company as above explained, but defendant specifically denies that by the letter of July 12, 1924, written by C. J. Kirkpatrick, engineer of the company, referred to by plaintiff in his petition, that the contract of January 28, 1924, had been altered so as to extend the area of the work to be done to mile post 614. The company alleges that under the terms of the agreement as evidenced by that letter, the contract was so altered as to extend the yardage work as stipulated in the contract of .January 28, 1924, from mile post 600 to mile post 602, and from mile post 614 to mile post 616, and not between mile posts 602 and 614.

The letter of July 12, 1924, is as follows:

“Referring to your contract of. the 28th of January, 1924, with the New Orleans, Texas and Mexico Railway Company, wish to advise that we will pay you thirty-two (32c) . cents per cubic yard for bank widening that has not been completed between Elliot City and mile post 314, and between Hazelwood and Courtableau, and •that this will constitute a supplement to above mentioned contract, all conditions apply' in the above contract except the price, which applies to the work within the limits above set forth.

“This letter agreement in no way changes any of the provisions qf the above mentioned contract except the price and if you are agreeable to these terms, please sign and return one of the duplicate copies we are sending you.”

The figure 314 which appears in the letter was, by agreement of counsel, corrected to 614. It is clearly stated in this letter that plaintiff was to be paid for bank widening that had not been completed between Elliott City and mile post 614 as corrected, and between Hazelwood and Courtableau; and would constitute a supplement to the contract of January 28, 1924, with the exception of the price which had been changed to 32c per cubic yard and as to which there is no controversy. All the conditions of that agreement were to apply, but as again stated in the letter “within the limits above set out”. This letter was written by Kirkpatrick, the chief engineer of defendant company, was accepted by plaintiff and was made the basis of his suit as appears from his original petition. It refers directly to the contract of January 28, 1924, and limits the effect of that contract between the points designated and which the evidence shows, comprised an area of about four miles.

Counsel for plaintiff refers to Article C. C. 1949, which says when there is anything doubtful in one contract it may be explained by referring to other contracts or agreements made on the same subject matter between the same parties, before or after the agreement of the parties. The letter of Kirkpatrick of July 12, 1924, refers directly to the agreement of January 28th, and modifies it specifically in reference to the limits in which the yardage was to be done. The letter made no reference to the original contract of October 11, 1922, for the obvious reason that it had been cancelled. There are no other agreements or contracts between the parties, at a time prior or subsequent to the letter of July 12th so far as is disclosed by the record which could explain the agreement embodied in that letter.

Counsel for plaintiff in discussing this subject refers us to the letter written Kirkpatrick by plaintiff on July 5, 1924, and contends that his proposal submitted in that letter was accepted by Kirkpatrick in his letter of July 12th and which was an answer thereto. In the letter of July 5th plaintiff, in making his offer to do the work, referred to the contract of Picket and Hollier which evidently was the original contract of October 11, 1922. This contract was for the widening of the embankment from mile post 600 to 625.6. Evidently, if the letter of July 12th had been an acceptance of that proposal, the chief engineer would not have so scrupulously limited the yardage to the area therein stated. The letter of July 12th, was neither an answer or acceptance of the proposal submitted by plaintiff in his letter of July 5th. It was simply a modification of the contract of January 28th to which it was intended to apply, exclusively.

Counsel for plaintiff cites also Article 1956 Civil Code. This article furnishes a rule for the interpretation of contracts when the intent is doubtful by referring to the construction put upon it by the manner it has been executed by both, or by one with the express or implied assent of the other. We do not think that the intent of the parties is doubtful in this contract as appears by the conditions which were stated in the letter of July 12th and which were accepted by plaintiff as was by him alleged. If its intent were doubtful as contended for by plaintiff, the manner of its execution by both parties, or by one with the assent of the other, would have to be looked into in order to apply the rule of interpretation which plaintiff invokes.

The contract was made with the chief engineer of the company, who was charged with the duty of making agreements of that character. It is certain from the evidence that Kirkpatrick, hy the manner in which the contract was executed, never placed a construction upon it which could sustain the contentions of the plaintiff. The work, it is shown, was under the general supervision of Kirkpatrick. Colvin was the assistant engineer, who looked over the local work, and who denies that he contracted with plaintiff to change or modify in any respect, the conditions of the agreement embodied in the letter of July 12th. The fact is that the estimate of the work which was performed by plaintiff was made by Colvin according to the limits which had been specified in the letter of July 12, 1924. Even if he attempted to enlarge on those conditions by the manner in which he allotted the area to plaintiff, there is nothing to show that he was, in that respect, authorized by Kirkpatrick, or that the latter was in any way apprised of such changes. If Colvin attempted to modify the agreement of July 12th by the method in which he executed the work, the company could not be bound, as it never asserted thereto by Kirkpatrick, its authorized agent.

Plaintiff is not entitled to recover for the area which was allotted to Duplechein and Richards.


author: LECHE, J.

text:
    No. -
    First Circuit
    HUDSPETH v. TUBRE
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625. The finding of the trial court on questions of fact uncontradicted being clearly correct is affirmed.
    Appeal from- the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by T. L. Hudspeth against W. E. Tubre.
    There was judgment for plaintiff . and defendant appealed.
    Judgment affirmed.
    S. W. Gardiner, of Ville Platte, attorney for plaintiff, appellee.
    J. Hugo Dore, of Ville Platte, attorney for defendant, appellant.
   LECHE, J.

Plaintiff alleges in his petition that defendant owes him a balance of two hundred and eighty-five 57-100 dollars for goods, wares and merchandise sold and delivered during the years 1924 and 1925, and he prays for judgment accordingly. The defense is substantially that plaintiff and defendant were commercial partners, that the suit is upon a claim that arose during the partnership and out of the partnership and that plaintiff having failed to allege that the partnership was dissolved and liquidated, he should be relegated to an action for the settlement of the partnership, and his suit dismissed.

Plaintiff testified that there had been a partnership between himself and defendant, but that the partnership was settled on April 27, 1925. He does not say how it was settled, but he says further that defendant owes him for goods and merchandise sold since the dissolution of the partnership, the sum of two hundred and five 66-100 dollars. The account annexed to and forming part of the petition with the item “balance due on April 20, 1925, one hundred and sixty 02-100 dollars”. The account further shows, from April 27, 1925, the day the partnership was settled, that after deducting all credits, a balance of three hundred ninety-nine 43-100 dollars, appears to be due by defendant to plaintiff.

It is difficult to reconcile the testimony of plaintiff with the annexed account, or with the allegation in the petition which states that the indebtedness amounts to two hundred and eighty-five 57-100 dollars. Defendant contested the- suit but offered no evidence.

The trial judge relying upon the uncontradicted testimony of plaintiff, that defendant owed him for good, wares and merchandise sold since the liquidation of the partnership, two hundred and five 66-100 dollars, rendered judgment in favor of plaintiff for that amount.

We see no reason to avoid that judgment and it is therefore affirmed.


text:
    No. -
    First Circuit
    MILLAUDON v. BRENAN
    (Feb. 12, 1927. Opinion and Decree.)

      (.Syllabus by the Editor.) '

    1. Louisiana Digest — Sales—Par. 3, 43, 47.
    In view of Articles 2462 and 2463 of the Civil Code, a deposit of part payment of the purchase price of property on the sale to be consummated at a future date is “earnest” money even though the word “earnest” is not used.
    2. Louisiana Digest — Sales—Par. 3, 43.
    There is no conflict between Article 2462 of the Civil Code as amended by Act 27 of 1920 and Article 2463 of the Civil Code having reference to a “promise to sell” and “earnest money”.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    Action by Clifford H. Millaudon against' Miss Tillie Brenan.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    A. J. Finney, of Covington, attorney. for plaintiff, appellee.
    Lindsey McDougall, of Covington, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant to compel her to sign a deed of sale for á parcel of land situated in the town of Covington. The act of deed upon which plaintiff relies to compel a transfer of the property was executed January 23, 1926.

This act reads in part, as follows:

“I, Tillie Brenan, of lawful age, a resident of Covington, Louisiana, have this day sold to Clifford H. Millaudon the following described property, etc.:

“The purchase price being the sum of three hundred and no-100 dollars ($300.00) cash, I hereby acknowledge a deposit of fifty and no-100 dollars ($50.00) received from Clifford H. Millaudon, on the sale of above described property. The act of sale of this property is to be passed within the next fifteen days from the date of this agreement.”

It is clear from the recitals in the foregoing contract that there was a reciprocal consent between the parties as to the thing, the price, and terms. It is therefore a promise of sell; C. C. 2482. This is emphasized by the fact that the act of sale for the transfer of title was to be. executed at a .date subsequent to the contract, and that a deposit of $50.00 was made by plaintiff to guarantee or secure the sale. Capo vs. Bugdahl, 117 La. 992, 42 So. 478; Smith vs. Heissey, 119 La. 32, 43 So. 902; Lee Lbr. Co. vs. Union Naval Stores Co., 142 La. 509, 77 So. 131; Bermuda Stock Farms Co. vs. Gilliland Oil Co., 155 La. 949, 99 So. 708. Part of the contract above copied, it is true, says that $50.00 were deposited with defendant, vendor, but does not declare that it was “earnest” money. This was, however, immaterial, as such a deposit should be considered as “earnest” money, even though it had been given over as part of the purchase price. Maloney vs. Aschaffenburg, 143 La. 509, 78 So. 761; Capo vs. Bugdahl, 117 La. 42 So. 478.

Counsel for plaintiff, if we understand him correctly, does not dispute the proponsition that if the amount given by plaintiff was “earnest” money that defendant had, under the provisions of Article 2463, Civil Code, the right to withdraw from the agreement by giving double the amount of the “earnest” money. The contention of counsel for plaintiff in that Article 2463 C. C. in in conflict with the provisions of Act 27, 1920, a later statute, and is therefore impliedly repealed. That statute amends and reenacts Article 2462 of the Civil Code which refers to a promise to sell, and makes no reference to Article 2463, which governs the rights of prospective vendors and vendees, when earnest money has been deposited. Act 27, 1920, upon which counsel relies, after re-enacting Article 2462, which deals with the promise to sell, says in part:

“One may purchase the right or option to accept or reject, within a stipulated time, an offer or promise to sell, etc.”

Under the provisions' of Act 27, 1920, a party is given the right to accept or reject, within a certain time, an offer or promise to sell. He could not possibly, in the same contract, take an option to buy a thing and at the same time obligate himself to buy the thing. Such an agreement would be an anomaly — a paradox, as was well said in .................-.............. 155 La. 949. There is no conflict between the act aforesaid and Article 2462; much less with Article 2463 to which the act makes no reference. As hereinabove stated the amount of $50.00 was deposited with defendant to bind her to execute the sale within fifteen days after the date of the act. The evidence shows that three or four days after the execution of the act, defendant, through her attorney, offered plaintiff to pay him the sum of $100.00, being double the amount of the earnest money. This was refused by plaintiff. No formal tender was made, but as plaintiff had refused to accept double the amount, the formality of a legal tender would have been in vain or to no purpose, and was not therefore required. MacLeod vs. Hoover, 159 La. 244, 105 So. 305.

At the opening of the trial a legal tender of $100.00 was made to plaintiff, who refused to accept it.

The .lower court rendered judgment for plaintiff decreeing that defendant execute a deed transferring title of the property to plaintiff. This judgment is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and that the demand of the plaintiff be rejected; that the clerk of the District Court hold the one hundred dollars ($100.00) tendered by defendant, subject to the orders of the plaintiff herein; and that upon payment of $100.00 to plaintiff that the contract of date, Jan. 23, 1926, above referred to, be cancelled and erased from the public records of the Parish of St. Tammany, and that plaintiff pay all costs of this suit.


text:
    No. -
    First Circuit
    DRONETTE v. MEAUX BROTHERS
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding at the trial court on a matter of fact, namely, that kerosene and not gasoline was delivered by defendant to plaintiff, being manifestly correct, is affirmed.
    Appeal from Vermilion parish. Hon. W. W. Bailey, District Judge.
    Action by Alphe Dronette against Meaux Brothers.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gremillion & Smith, of Crowley, attorneys for plaintiff, appellant.
    Kitchell & Boudreaux, of Abbeville, attorneys for defendant, appellee.
   MOUTON, J.

While engaged in lighting a fire in a heater in his home on the morning of Feb. 10, 1918, an explosion occurred, resulting in severe personal injuries to plaintiff, for which he sues defendant firm in the sum of $21,000.00.

His demand was rejected. He appeals.

Plaintiff bought a barrel or drum of oil from the defendant in November, 1917. He was then living in Kaplan, where the oil was delivered to him by defendant, through his teamster, Bouillon. Plaintiff contends that instead of sending him kerosene oil which he had bought, defendant delivered a barrel of gasoline, which, he-alleges, caused the damages of which he complains. It is on a proper solution of the controverted issue as to whether kerosene or gasoline was delivered to plaintiff that this case depends.

Plaintiff was attempting to start a fire in his stove or heater when the accident happened. He says he put corn cobs first in his coal heater, then kindling, then oil and coal on top. After doing this, he says he applied a match thereto, and started, his fire. After starting the fire, he sat down for a while, in his underwear, then put on his clothes and noticed that the fire was not “burning good”, but was going down. After he was dressed, he says, he looked into the stove, saw a small “flame the size of a match”, took the oil tank and poured some oil from the top and closed the stove, sat down and placed his hand on the oil tank which rested on his knee. He explains that after thus pouring the oil and taking a seat in a chair in front of the heater, a flame shot out from the heater and the tank he was holding on his knee, which was a gallon glass jar, exploded, and caused the injury.

Plaintiff was alone at the time and the above is substantially the narrative he gives of the occurrence. He was living in Kaplan when the oil was delivered to him in November, 1917. About two months thereafter he moved in the country, where some two weeks later, he was burned as the result of the explosion. He is positive that the oil which he was using in the glass jar to start the fire had been taken from the barrel he had received from defendant at Kaplan, and which he had carried to the country when he moved there. Simpson, an employee of the Board of Health, made a test of this oil with a Taglibue thermometer and hydrometer which are used to register the gravity and heat' oí oils. He found that the oil registered 52% degrees. He also made what he terms a flash test. The temperature of the -day was at 86 degrees when this test was made, and under his test the oil flashed at 89 degrees. He explains that in making this test he poured some of the oil in a cup, lighted a match, passed it 6' inches above the cup, and that the oil flashed. He pronounced it a low grade gasoline oil, as dangerous and explosive.

Plaintiff contends that from the manner in which thé explosion occurred, and the test made by Simpson, it clearly appears that the oil in question was not keresene which he had bought, but was' gasoline. In support of his contention that the oil was gasoline, he refers to the testimony of Dr. Saparita, who attended to plaintiff soon after the accident. Dr. Saparita says the Ford car he was driving ran out of gas at about a quarter of a mile from plaintiff’s home from where they drove him in a buggy to the home of the plaintiff; that Francois Dronette, father of plaintiff, gave him about one gallon of oil which he presumes was from the barrel' in question, and that he drove his machine back to Kaplan, a distance of about 3% miles. He says he stayed in the house anywhere between 40 and 60 minutes, he believes, and that when he got back to his car “it had cooled off some”. He remarks, however, that in returning to Kaplan, the machine stopped several times, and that it did not run as well as with gasoline. From the fact that Dr. Saparita ran his car back to Kaplan, with the oil furnished him from the barrel which plaintiff says he bought from defendant firm,, counsel for plaintiff con-' tends that this .affords strong corrobora-tive evidence showing that the oil in question was gasoline and not kerosene.

Homer LeBlanc, a -witness for defendant, says that he ran his Ford car with kerosene and mentioned a particular Occasion when he drove it about six miles with that kind of oil at which time he says he was in company with Luther Fletcher, who corroborated this statement. Fletcher runs a garage and doubtless has some experience in running automobiles. In addition to his statement given in corroboration of Leblanc’s testimony, Fletcher says that he frequently used kerosene to run his Ford car, and that it will run it when the engine is cold.

No doubt kerosene, as a motive power, is not as effective as gasoline, but under the evidence of Leblanc and Fletcher, it appears that kerosene will run a car, and according to the testimony of Fletcher, that it will start and run a car even when the engine is cold.

This evidence shows, that though the engine of Dr. Saparita’s car had cooled off when he used the oil in his car, it could have been kerosene, although he ran it back to Kaplan. The fact that it stopped several times in such a short route, rather sustains, to a certain extent, the contention that it was kerosene and not gasoline he was using.

The barrel of ' oil under discussion was delivered to Bouillon for plaintiff, by Emile Meyers, who was then the manager of defendant’s store at Kaplan. Meyers testified in the case, but has died since the trial. He explained, in his testimony, 'that the store of defendant is 85 feet long and 55 feet in'width; that he stored the gasoline at the southwest corner of the store, and the kerosene at the northeast end, at a - distance of about 140 feet. He bought his supply of oil, gasoline and kerosene from the Waters-Pierce Oil Company, at Abbeville. This drum or barrel, in question, he says, he first filled with gasoline and sent it to Montgomery, who was threshing rice. He says it was returned by Montgomery with two other drums and that he set it back with empty drums; that he drained it and then rinsed it with kerosene, and that it was refilled with kerosene in his presence. It may not be amiss to remark here that it is shown by the testimony of Montagne .that it is customary for his company to rinse barrels with kerosene in which gasoline has been stored, and to refill them with kerosene; also, by the testimony of Read, a chemist, who testified in the case, that no deleterious effects can result from the refilling of such barrels with kerosene after having rinsed them with that kind of oil. Now, returning to the testimony of Meyers on this subject, we find that he gives the number of 90346 as being that of the drum he had sent to Montgomery as hereinabove explained; he says he is positive that he delivered to Bouillon for plaintiff, the identical drum after he had refilled it with kerosene oil. He was examined and cross-examined and never deviated in the slightest from this statement,, in which he remained positive and unshaken.

The oil, gasoline and kerosene, which defendant bought for its stove, were loaded by the Waters-Pierce Company at Abbe-ville. Counsel for plaintiff questioned Meyers very closely on the proposition as to how he could tell that no mistake had been made at the loading place between the two' oils, resulting' possibly in the putting of the oils in the wrong cans. The answer of Meyers was that no such mis: take occurred in the instant case, because he had used the oil himself, had sold it to many customers, and that no complaint had ever been made, with the exception of plaintiff who claimed gasoline had been delivered to him instead of kerosene. Naturally, these customers who bought the oil for kerosene, must have used it in lamps and stoves for which it is usually purchased, and it is indeed strange that plaintiff only should have suffered from its use. The fact is that it was shown by Mrs. Raush, a witness for defendant, that she had borrowed a bottle of the oil in question from the wife of plaintiff, had used it in her lamps, without any resulting trouble or accident.

Mrs. Comeaux, another witness for defendant, says she borrowed a gallon of this oil from plaintiff’s wife, and used it in her lamps and also in' her stove, without any trouble or difficulty. In connection with this testimony it is proper to consider the .way in which the explosion occurred. In explaining how the accident happened, plaintiff says, he placed corn cobs in his heater and kindling, coal on top and applied a match. After the fire started, he sat down and then dressed. He noticed the fire was not burning as he expected, looked in the stove, saw a small flame, then poured the oil in the stove from the glass jar, closed the stove, and sat down again; while holding the jar in his hand, that a flame shot but of the stove and exploded the jar. It is difficult to say with any degree of accuracy how much time intervened between these various acts, that is, from the 'time the match was struck, and the explosion happened. . It is perfectly safe to say that several seconds must have transpired from the striking of this match to the ultimate time of this unfortunate occurrence.

The facts above outlined were submitted in the form of an hypothetical proposition to Frank C.- Read, chief chemist of the Standard Oil Company of Louisiana, and upon which he was asked to give an expert opinion. His answer thereto was that after the pouring of the oil by plaintiff, and the application of the match, if the oil had been gasoline, there would have been an immediate explosion following the stream of gasoline to the glass jar, and before plaintiff would have had time either to close the heater or to sit down. He also explained that if the oil had been gasoline, when plaintiff poured it in the stove on the small flame which plaintiff said was burning then, an instantaneous explosion would have occurred, the glass jar which contained the gasoline would have been shattered, and before plaintiff could have sat down in front of the stove, the explosion would have occurred. He testifies that a spark from a cigar will ignite gasoline, and that it would ignite quicker from a flame. He explains that the smallest flame would cause it to follow up to the source of supply, even if it were dripping then in drops, and an explosion would result. This would be the result, he explains, from a liquid which would flash from a flame at 6 inches therefrom and at a temperature of 89 degrees, which the evidence shows were the conditions under which Simpson, expert for plaintiff, made his flash test as' above referred to. Read says his opinion is based on thousands experiments which he made during his service of 12 or 13 years as chemist for the Standard Oil ’ Company.

Counsel warns us against the danger' of accepting expert opinion in general; and says, that opinion evidence, however weighty or plausible, must yield when opposed to facts, citing in support of this .proposition Succession of • Ford, 151 La. 571, 92 So. 61. If the opinion of Read were opposed to the facts we would not hesitate to discard it, but we find that instead of being in conflict therewith, it is in harmony with the substantial facts and circumstances of this case which are determinative of the issue presented.

Read also testifide as to the use of gasoline in lamps or stores constructed for kerosene. He says that gasoline could not be used in such lamps or stoves without incurring the danger of immediate explosion.- This testimony is in line with the common experience of laymen in matters of this character. It is therefore impossible to believe that if the oil delivered to plaintiff had been gasoline that when it was used by the many customers of defendant company and by Mrs. Raush and Comeaux, who testified in this case, that no explosions would have occurred, not even any trouble or disturbance in their lamps or cooking stoves. This is unbelievable. The preponderance of the evidence instead of showing that gasoline was delivered to plaintiff indicates that it was kerosene. If the preponderance is not in favor of defendant, the evidence is ■so sharply conflicting that its weight is about equally divided, and if not equally divided, there is certainly no manifest error in the judgment appealed from to authorize a reversal by this court.


text:
    No. -
    First Circuit
    OLIVIA v. MITCHELL
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 511; Courts — Par. 128.
    The appellate jurisdiction of the courts is determined by the amount in dispute • at the time the judgment appealed from was rendered in the lower court.
    A case appealed to the Court of Appeal which should have been appealed to the Supreme Court will be transferred.
    Appeal from Tangipahoa parish. Hon. Columbus Reid, District Judge.
    Action by Benedetto Olivia against H. P. Mitchell.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    J. J. Jackson, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

Defendant entered into a contract with plaintiff in March, 1922, to sell him a tract of land of 35' acres for the sum of $1300.00. Plaintiff sues defendant for a specific performance of the contract, to compel defendant to execute a title to plaintiff upon the latter paying a balance alleged to be due on the purchase price. The amount of $1300.00 which is the stipulated price in the promise of sale is not drawn in question. The purpose of the suit is to enforce, judicially, a transfer of ownership by defendant. Plaintiff alleges that the land is worth over the sum of $3000.00. This allegation is denied by defendant. Allen, a witness for defendant, fixes the value of the land at $50.00 or $60.00 per acre. This would bring the price of the land not quite up to the sum of $2000.00. Mitchell, the defendant, when questioned as to its value, firse said: “Anything near $3000.00;” and then in answer to another query from his attorney, said, “$2000.00 or $2500.00.”. Murphy, a real estate agent, fixed its value at least at $3000.00 or more. The estimate placed on the land by Murphy was in keeping with the allegation of value made by plaintiff in his petition in which there is nothing to indicate that he was making any attempt at inflation to vest jurisdiction in the Supreme Court.

The rule in such cases js that the appellate jurisdiction of the courts is determined by the amount in dispute at the time the judgment appealed from was rendered in the lower court. See Wolf vs. Thomas, 137 La. 833, 69 South. 269, and authorities there cited.

It is true that the promise to sell was agreed to at $1300.00, but this was in 1922. It would seem that lands in Tangipahoa, where this tract is situated, have increased to an astonishing extent since that time, which accounts for the present value of the tract in dispute, which, we find, according to the evidence was worth more than $2000.00 when the judgment was rendered below, and which amount exceeds the maximum limit of our jurisdiction.

It is therefore ordered that this appeal be transferred to the Supreme Court of this State, provided that the transcript be filed in the Supreme Court within 60 days from the finality of this judgment, and that the clerk of this court notify counsel of record of this order of transfer.


text:
    No. -
    First Circuit
    CLARK v. SMITH
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana. Digest — Appeal—Par. 511; Courts — Par. 128.
    Where petition of. plaintiff shows that the amount in dispute is less than appellate jurisdiction, the appeal will be dismissed.

      ■ Appeal from the District Court, Parish ' of St. Helena. Hon. Columbus Reid, Judge.
    Action by W. L. Clark against C. A. Smith.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    W. T. Holland, of Greensburg and B. B. .Purser, of Amite, attorneys for plaintiff, appellant.
    Robert T. Carter, of Greensburg, attorney for defendant, appellee.
   ELLIOTT, J.

Suit for balance due on open account.

Defendant and appellee moved the dismissal of this appeal on the ground that the amount in dispute is less than the lower limit of the jurisdicition of this court.

The petition of the plaintiff shows that such is the case and that this court has no jurisdiction.

This appeal is dismissed at the cost of plaintiff and appellant.


text:
    No. -
    First Circuit
    DURAND v. RICHARD
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Dismissed.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Fraudulent Conveyances — Par. 142.
    The finding of the trial curt on a matter of fact, namely, that the sale of property was simulated and fraudulent, having been made for the purpose of despoiling the forced heirs of their legal rights, being clearly correct, is affirmed.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Philomene Durand, wife, et als., against Valerie Richard, widow, et als.
    There was judgment for plaintiff and ' defendant appealed.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    John W. Lewis, of Opelousas, attorney for defendant, appellant.
   MOUTON, J.

Benjamin L. Durand was twice married; his first marriage was with Miss Angele Bienvenue and his second, with-Miss Vallerie Richard. His first wife died about fifteeen years ago, his second wife survives him, Mr. Durand having died on, Oct. 19, 1924. At the time of his death Mr. Durand was 72, and his wife 38. There were several children born of the first marriage and none of the second.

In April, 1923, Mr. Durand made a donation to Valerie Richard, his second wife) of several lots with a dwelling, situated in the village of Port Barre, including household furniture and movable effects, valued at $2500.00. In June, 1924, he made a sale of this property to Raymond Richard, his wife’s brother, including the furniture, movable effects and one Fisher piano for $1600.00. His wife appeared in this act of sale renouncing her rights under the donation her husband had previously made to her of the property. In February, 1925, a few months after the death of Mr. Benjamin L. Durand, Raymond Richard executed a deed of the property, comprising the movable effects and piano, to his sister, Mrs. Valerie Durand, for $1600.00. Several of the forced heirs of Mr. Durand instituted this suit, claiming that these sales from Mr. Durand to Raymond Richard and from Richard to Mrs. Durand after the death of her husband were pure Simulations, and are asking for a partition of the property by licitation.

The district judge rendered judgment in favor' of plaintiffs, decreeing that these sales were simulated. The question of simulation presents the vital issue in the case.

It is' shown that not long after' the execution of the act of donation in April, 1923, Mr. Durand and his wife became estranged, and were separated during a period of about eleven months. During this period of separation Mr. Durand went to live with his daughter, Mrs. Broussard, in Breaux Bridge. He instituted a suit for separation against his wife but a reconciliation having been effected between them, he returned to her sometime in May, 19924, at Port Barre, where he died later in October, 1924.

In the act of donation, by Mr. Durand to his wife, he made the declaration that he had acquired the property since his second marriage, therefore the children of his first wife could not complain as he had “done all he could for them”. The evidence shows that the furniture which Mr. Durand had included in this donation had been acquired during the existence of the first community, and had not been acquired after his second marriage, as was stated in the donation. Reference is made to this fact, as it shows that Mr. Durand was prompted by a desire to' confer a benefit' on his second wife, even to the extent of giving to her property which belonged exclusively to the first community. There was also with the furniture a Fisher piano, in the home of Mr. Durand at Port Barre where he had returned to live with his second wife as is hereinabove stated. The children wrote him that upon a certain day they would be in Port Barre to take away this piano which it is shown had been acquired during the existence of the first community, and had been donated by the first Mrs. Durand to one of her daughters, now a. religious.

On' the day appointed the daughters of Mr. Durand came over to Port Barre for the purpose of taking the piano. The son of one of his daughters who had accom-, panie.d them, broke into the house to remove the piano but the marshal of the town having intervened, the piano was not taken as had been intended. Mr. Durand and his wife were then absent, and were at that time on a visit at the home of Mrs. Durand’s mother in Sunset. A message by telephone was sent Mr. Durand from Port Barre, stating that his ■ children had broken into his house to remove the piano. Mr. Durand’s wife, a sister and Raymond Richard, her brother, all say, they were on the gallery of their mother’s home when this message was delivered, and that Mr. Durand immediately remarked that if he could sell his property at Port Barre he would be a happy man, as his children would then stop worrying or annoying him. Mr. Raymond Richard, his wife’s brother, asked him how much he wanted for it; he answered $1600.00. The contract was then made for that price with the understanding that the parties would meet on the day following at Mr. Lewis’ office in the city of Opelousas.

The next day, as agreed, the parties met at Mr. Lewis’ office; Mr. -Lewis was then absent; the sale passed by Mr.- Lacombe, a notary public, in the office. The sale was by authentic act, for $1600.00 cash; the money . was counted, handed to the notary, and by him to Mr. Durand, the ostensible vendor; All the formalities of law usually accompanying genuine transactions of this character were carefully observed. Mrs. Durand appeared in. the act for the purpose of renouncing her rights in the donation of the property which her husband had made to her. When Mr. Durand made this donation it is evident the object he had in view was to benefit his second wife to the detriment of the children of his first marriage.

His wife accepted the donation, and was unquestionably willing to get the property in derogation of the rights of the children, the forced heirs of her husband. She later, however, renounced her rights thereunder that her husband might effect the sale to her brother, Raymond Richard. Mr. Durand and his wife had evidently realized that these forced heirs could not be despoiled of their property rights by means of the donation inter vivos.

Mr. Durand, the day before he executed the sale, had serious trouble with his children as above explained, and no doubt for a stronger reason than existed before, desired that the property he had previously donated to his wife should remain hers to the exclusion of his heirs. When he was still smarting under the effects of the message he had received that his children were burglarizing his home at Port Barre, he executed the sale to his brother-in-law, Mr. Raymond Richard. In this sale he included the furniture and the piano, property of the first community, and of his daughter by gift from her mother. The purchaser named in the sale, Raymond Richard, is a bachelor, who was living in Sunset with his father. and mother. He- claims to have paid the $1600.00, price of the sale, with money that belonged to him. It appears that he was employed as overseer of his father’s plantation, and it is claimed that he is a man of frugal habits, that he had accumulated enough money from his earnings to make this investment. He claims that he had these $1600.00 in an iron box which was kept in his father’s home. He says, he never deposits his money in banks, except such small sums as they may need for the current expenses of the plantation.

The proof is that there is a bank at Sunset, where he lives, and that ' his brother is a director of a bank in Opelousas, a town distant about 12 miles from Sunset. This may all be true about his aversions to banks, but it seems strange to us that a man should keep an amount of that importance in a small iron box, and would not rather entrust it to a bank for safekeeping. What is still more singular is the fact that this pretended iron box always remained unlocked. It is possible that such was the way Richard handled his funds but it is hard to believe that a man would be so careless with his money. Richard persists, however, in the statement that the money was his, and that the deal he made with his brother-in-law was a genuine transaction. He says, he bought the property for speculation. This sale was • made in June, 1924, and Mr. Durand died in the following October, about four months thereafter. His wife qualified as administratrix of his estate. An inventory was made which amounted to $1144.00 which was made up of certificate of deposit in the Bank of St. Martinville with the accumulation of interest thereon. This stock certificate was dated Oct. 19, 1922.

His surviving wife, as widow in necessitous circumstances, qualified as administratrix of his estate, and in due course of administration received from it the sum of $791.00.

On the 3rd of February, 1925, a few months after the death of Mr. Durand, Raymond Richard sold the same property with this furniture and piano to his sister, Mrs. Durand, for the sum of $1600.00, of which she paid him $750.00 in cash, and executed for the credit portion, nine promissory notes, the first for $50.00 and the rest of $100.00 each, all payable yearly with 8 per cent per annum interest, from date.

In the execution of this sale all the formalities of law were again scrupulously observed, the cash money being delivered to Raymond Richard, also the promissory notes. It may not be inappropriate to observe in connection with this sale that although Mr. Raymond Richard stated as a witness that he had bought the property originally for speculation, he nevertheless pretends to have sold it to his sister for the exact price he had paid for it, a little over one-third in cash, and the balance payable in small installments for a period of nine years. If he had really bought the property as a speculation it is not likely that he would have sold it to his sister for the same price, and on the conditions of- his pretended transfer. It is a little singular also that Mr. Richard, a bachelor, should have invested his hard cash earnings in furniture and a piano, which was quite old and of small value, if any, as to the piano. The proof is that after the sale to Raymond Richard, Mr. Durand and his wife remained in possession of the property, including the movables, to the time of the former’s death. The retention of possession by the vendor of an immovable property is always considered as a mark or badge of fraud. The citation of authority is heardly necessary to support this principle. C: C. 1921. ■

Mr. Richard explains, however, that upon making - the sale he rented the property to Mr. Durand at $10.00 per month, and that his sister paid him these monthly dues usually on her visits to Sunset, where he was living, during the lifetime of Mr. Durand, and up to the time she claims to have acquired from Mr. Richard. The proof shows, and to which we have hereinabove referred, that Mr. Durand left at his demise a stock certificate in the Bank of St. Martinville amounting to $1100.00 which with accumulated interest fpoted up the sum of $1144.00. . He was owner of this in 1922, as appears by the date of the certificate, which was two years prior to the time of the sale from Mr. Durand to Richard by which the defendants c}aim the former received $1600.00 in cash.

Mrs. F. O. Broussard, daughter of Mr. Du-rand, testifies that her father some four years prior to the time of his death was receiving as a retired railroad conductor the sum of $65.00 per month as a pension; also, that he was receiving per month, $40.00 from the Ben Overland Society, as' to which statement there is no contradictory evidence. She also states that while her father lived with her in Breaux Bridge, which the record shows was for a period of 11 months, he was never in need, as his pension proved sufficient for all his wants. It may therefore be fairly inferred that he was a man of frugal habits, and that he did not require much to provide for his needs.

After he left the domicile of his daughter Mr. Durand returned to his wife at Port Barre. They had no children, and the expenses of the household' could not have been very large. Not long after his return, in June, 1924, it is contended by defendants that he received these $1600.00. He died in October, 1924, only four months thereafter. The habits of Mr. Durand, liis age, his surrounding in a little village the size of Port Barre, make it impossible to believe that in this short period of 4 months, he could have squandered or dissipated this sum of $1600.00. The plaintiffs, who were in a way estranged from their father, could not possibly be called upon to make any explanation in reference to these funds. The only person who could have given satisfactory explanation in reference thereto, was Mr. Durand’s surviving wife, one of the defendants in this case, and no other, as far as we can gather from the record. What became of this ' money is not accounted for and still remains a mystery.

In King Adm. vs. Atkins, et als., 33 A. 1057, the court used the following language:

“Simulation, from its nature, can usually be proved only by indirect and circumstantial evidence, and, when facts are shown which are sufficient to ■ throw doubt upon the reality of the sale, the burden of proof is shifted to the parties who know the truth and can establish it by their testimony. When under such circumstances, they fail to furnish the evidence clearly within their power all the presumptions of law are against them.”

It is true in the case cited above, that the parties claiming to have purchased, failed to testify to the variety of the sale, while in this case, Richard, the ostensible purchaser, claimed that he had paid the price, and that the sale was a genuine transaction.

In discussing the issue in that case, the court said in reference to the defendants therein, .that the facts as to these transactions were necessarily known to them, “and may not have been known to any other person whatever.” In this case, the fact as to what became of these $1600.00 was an ■ outstanding fact. If it had been explained that this money had been used by Mr. Durand as legitimate expenses or otherwise; there can be no question that his surviving wife could have explained in what way it had been expended. No one else was in a position to explain that. The proof showed that she had remained in possession of the property. This fact of corporeal possession on her part, taken in connection with the indirect and circumstantial evidence of this case, shifted the burden of proof upon her, and as a defendant, she should have offered all the evidence in her power to establish the verity of the sale. Unquestionably, if Mr. Durand had received this money as the price for his property, a man of his economical habits would have deposited this sum in some banking institution or would have invested it in some stock or other property. After his death it would have reappeared in kind; or in some form of investment. The fact that it did not reappear, shows that it found its way back to the ostensible vendee, who subsequently conveyed the property to Mrs. Durand in the form of an authentic sale.

It is true the forms of law were carefully observed in the sale to Mrs. Durand, but the fact that they were so observed is not to itself evidence of a genuine transaction, as the formalities required to - give authenticity to contracts are sometimes minutely complied with to conceal the fraudulent purposes of those engaged in illegal transactions.

Counsel for defendants refers us to Monroe vs. Wartelle, 39 La. Ann. 1067, 3 So. 384, where the court said:

“The law does not favor actions by forced heirs to undo transactions of their ancestors as done in fraud of their rights; and, in which it was also stated that in the absence of convincing proof, and in the . presence of evidence which merely cast a suspicion, the court will not take the property of one man to give to another.”

If the facts and circumstances above detailed had the effect of merely creating a suspicion affecting the reality of these transactions, we would not hesitate to dismiss the action of the plaintiffs. These facts and circumstances are of such a nature, however, that they are convincing and leave no doubt in our minds that the sales were simulations which had been carefully arranged to despoil the forced heirs of their just rights.

Having reached this conclusion, we hold that the district judge correctly held the sales were simulated, and recognized the ownership of the plaintiffs.


text:
    No. 2219
    First Circuit
    HAAS v. GUILLORY
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Acts—Par. 31, 33; Surveyors and Surveys — Par. 2, 7, 9.
    When the measurement and acreage called for in an act are in conflict, the masure which the property is said to have, prevails over the acreage which the measure is said to contain.
    2. Louisiana Digest — Acts—Par. 51; Petitory and Possessory — Par. 38.
    Where the evidence in a- petitory action shows that no survey was made after the property was purchased and that according to the deed, the preponderance of evidence and the surrounding circumstances, one hundred arpents had been reserved and not sold by the vendor, it -must be so held by the court.
    3.Louisiana Digest — Appeal—Par. 625; Petitory and Possessory — Par. 44.
    The finding of the trial court on a matter of fact, namely, that the plaintiff in a petitory action did not prove title to the land claimed, being clearly correct, is affirmed.
    Appeal from the District Court, Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Estate of Dr. John A. Haas against Alcee Guillory.
    There was judgment for defendant and plantiffs appealed.
    Judgment affirmed.
    John W. Lewis, of Opelousas, attorney for plaintiffs, appellants.
    J. Hugo Dore, of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

Petitory action to recover a parcel of ground alleged to belong to plaintiffs as part of a tract originally acquired from defendant, Alcee Guillory, owner of the NW% of section 29, township 5 south, range 1 west, containing 163.69 acres, sold part of same to Dr. R. Taylor Marshall, by authentic act passed before James J. Lewis, notary public, on December 11, 1897; saving and excepting from the land sold “forty arpents and improvements thereon, being the north end of said above described land, commencing on the northern, boundary, running south ten arpents, thence east ten arpents, thence north ten arpents and having a front of ten arpents on the northeast corner.”

Dr. Marshall transferred part of the tract which he received to Dr. John A. Haas, that part situated west of the body which Mr. Guillory reserved. Dr. Haas departed this life, leaving the plaintiffs, Mrs. Jeannette Roos Haas, his widow in community and Mrs. Nathalie Haas Hirsch, his. daughter, his sole heir. They allege their ownership of the land described in their petition as his widow in community and heir;- by virtue of the title which he received from Dr. Marshall and which Dr. Marshall received from defendant as above stated. That defendant has entered on and enclosed thirty-two acres of their land and refuses to deliver same to them. They sue to recover it and for $288.00 on account of the use for three years.

Defendant denies that the land- described in plaintiff’s petition belongs to them. He admits possession in himself and alleges that the land belongs to him, that it is part of the land reserved in the act executed by him in favor of Dr. Marshall as above stated. He alleges further, that being poor, illiterate, without experience and desiring to secure a home for himself and family and having confidence in Dr. Marshall, who was educated and experienced in business affairs, he consulted him and entered into an agreement with him, whereby Dr. Marshall directing him as to the steps to take, he entered the quarter section above mentioned as a homestead, under the laws of the United States and agreed in consideration of Dr. Marshall’s help and financial assistance, to make him a title to half of the property. That Dr. Marshall and the notary public before whom the act mentioned was signed, represented to him that he was retaining title under said act to one hundred arpents of laid land, in the northeast corner of the section, having ten arpents front by ten in depth. That the acreage which said act states that the reserved body had, was - an error on the part of the notary ublic. That the acreage reserved was in fact one hundred arpents. That he has been in the open peaceable possession as owner of said acreage under said act since its execution.

The question for determination is whether the acreage reserved in the act of December 11, 1897, was forty arpents, as stated in the act, or one hundred arpents, that being the amount, called for by the measure which the body reserved is said in said act to have.' It is not alleged in the petition of the plaintiffs that the statement in the act from Mr. Guillory to Dr. Marshall, that the bódy of land reserved, measured in fact, ten arpents in front by ten in depth was erroneous. The allegation is that the acreage reserved was but forty arpents. The theory of the plaintiffs is that the number stated, prevails over the measurement which the body reserved was said to have; that the act being on that account ambiguous, the acreage question should be construed against the seller, citing Civil Code Arts. 1957, 1958, 2474, and decisions of the Supreme Court, enforcing the rule contended for in the cases cited.

The law provides that in cases where the mutual intent of the parties to a contract cannot be ascertained, with certainty, but remains in doubt, and if the doubt or obscurity exists for want of necessary explanations which one of the parties ought to have given, or from negligence or fault of one of the parties, then the construction most favorable to the other party shall be adopted. That the seller must explain himself clearly respecting the extent of his obligations; obscure or ambiguous clauses are construed against him. If the mutual intent appears from the act, then the intent of course governs and the act must have effect as intended.

The act from Guillory to Marshall shows that a certain body of land was reserved, according to measure, ten arpents in front, by ten in depth, out of the northwest quarter of section 29, situated in the northeast corner of the section. The description calls for a square body having a certain measure, which measure necessarily contains one hundred arpents. The reservation “commencing on the northern boundary, running south ten arpents, thence east ten arpents, thence north ten arpents and having a front of ten arpents on the northeast corner,” is a reservation of one hundred arpents, and governs the statement that the acreage reserved was forty arpents. Civil Code Arts. 2492, 2493, 2494, 2496; Phelps vs. Wilson, 16 La. 185; Williams vs. Bernstein, 51 La. Ann. 115, 25 So. 411, p. 123; Citizens Bank vs. Lenoir, 118 La. 720, 43 So. 385.

In Meyer vs. Comegys, 147 La. 852, 86 So. 307, the Supreme Court held that when the measurement and acreage called for in an act are in conflict, the measure which the body is said to have, prevails over the acreage which the measure is said to contain. The case could have been decided on this ground, but both sides introduced evidence, the purpose and object of which was to show how the question of acreage was construed by the parties themselves.

Dr. Marshall and Dr. Haas have been dead only a few years. James J. Lewis, the notary before whom the act was passed, was not called as a witness, the reason why does not appear. The plaintiffs produced two witnesses, both of whom had been the agents of Dr. Haas for the purpose of renting and selling his lands. They testified that Mr. Guillory at one time wanted to buy from Dr. Haas through them, the land now claimed by plaintiffs and one of them states that he did at one time agree to buy it. That he prepared an act pursuant to their agreement and sent it to be signed by Dr. Haas, but the deal finally fell through because of defendant’s inability to raise the price. This unsigned act is in the record. Mr. Guillory does not know how to read or write. The record shows that he always signed by making his mark. We are not satisfied from the evidence that he understood that the land which he talked of buying from Dr. Haas was part of the ten' arpents by ten body that he reserved, nor that he ever admitted that the acreage of the body reserved was but forty arpents.

The testimony of plaintiffs’ witnesses are indefinite as to the understanding of Mr. Guillory on the subject. Mr. Guillory testifies that he never spoke of, nor thought of buying any of the body of land he had reserved, that the land he spoke of buying and had in mind to buy, was farther out, meaning farther west than the land claimed by the plaintiffs. The same witnesses testified that Mr. Guillory, acting through them, rented from Dr. Haas and paid rent for the land claimed by the plaintiffs. Mr. Guillory admits that he rented some land from Dr. Haas; but denies that it was the land claimed by the plaintiffs, that it was farther out and beyond that over which he exercised authority as reserved in the sale from him. to Marshall. Defendant’s denials and explanations seem to be consistent and bear the semblance of truth. We are not satisfied that he ever sought to buy or rent the land involved in this suit. Plaintiffs further argue that it is shown by an act of mortgage which Mr. Guillory executed in favor of Dr. Haas on November 13, 1908, that he had only one hundred arpents of land, more or less, made up of forty arpents reserved at the time of selling to Dr. Marshall and in addition fifty arpents acquired on December 22, 1898, from Dr. Marshall.

Mr. Guillory testifies that the act of mortgage in question was prepared by Dr. Haas to suit himself; that he did not furnish the description used in the act, that it was the work of others and with which he had nothing to do. That he only mortgaged the fifty arpents that he bought from Marshall, that Dr. Haas refused to take a mortgage on more than that. The act of mortgage does not in our opinion refute the claim of the defendant.

Plaintiffs also urge that an act dated December 22, 1898, and whereby Dr. Marshall sold to Mr. Guillory the SE14 of the NW% of section 21, township 5 south, range 1 west, shows that Mr. Guillory reserved but forty arpents in the act of December 11, 1897. This act of December 22, 1898, was passed before James J. Lewis, notary public, the same officer before whom the act of December 11, 1897, was passed. The statement in the act that the land sold by Marshall to Guillory is situated in section 21 is error. The land sold was situated ini section 29. The error mentioned was not discovered until November 13, 1908, when Dr. Haas, engaged in looking up Mr. Guillory’s property for the purpose of taking a mortgage on that part covered by the mortgage, discovered it. Dr. Marshall corrected the description by act before Leon S. Haas, notary public, on November 30, 1908, showing that the land was, in fact, situated in section 29.

The plaintiffs argue that defendant can not be regarded as having reserved in the act of December 11, 1897, ten arpents in front by ten in depth, because such a depth would conflict to the extent of about 25 arpents with the SE!4 of the NW14 of section 29, acquired by defendant from Marshall by the act of December 22, 1898. The map offered in evidence shows that the conflict exists to the extent claimed.

It is established that the reservation. of ten arpents in front by ten in depth, takes half of the area covered by the description SE14 of the NWÍ4 of section 29 above mentioned. Mr. Guillory testifies that he was not aware that the description in the act of December 22, 1898, was in conflict with his reservation in the act of December 11, 1897, at the time of buying from Dr. Marshall; that the conflict was unknown to him until after the institution of the present suit against him when it was discovered and made known to him by his attorney in the present case. His denial and explanation has been considered and accepted.

The phraseology of the act of December 11, 1897, indicates that Dr. Marshall and Notary Lewis were not familiar with the size and shape of the government subdivisions of land. The NW1^ of section 29 is a square body of land. Ten arpents in front by ten in depth is also square. If they had been familiar with the government subdivisions, ten arpents in front by ten in depth would not have been referred to as the north end of the quarter section and as fronting on the northeast corner. The act of December 22nd also states that the government subdivision mentioned contains fifty arpents. The acreage of a government subdivision can be stated in arpents, but it is not usually done.

The quantity of land reserved in the act from Guillory to Marshall was disclosed by the recorded title. Dr. Haas buying under such a description, acquired no greater rights against Mr. Guillory than Dr. Marshall had, even had greater been claimed, which is not done. It seems reasonable from the evidence that if Dr. Marshall had understood that Mr. Guillory had sold him all of the NWJ/4 of section 29, containing 163.69 acres, except forty arpents, that a conflict would have come about during the lifetime of Dr. Marshall leading to a survey' of the property sold; separating it from that reserved.

Mr. Guillory testifies that the line separating the property he sold to Dr. Marshall from that which he reserved has never been established by a surveyor, that he just maintained authority over what he estimated was 100 arpents reserved. The reservation of ten arpents front by ten in depth must have become known to Dr. Haas as a result of the examination of defendant’s title which he made or caused to be made for the purpose of the mortgage he took from Mr. Guillory. • If he had not understood that Mr. Guillory had reserved 100 arpents, there would have been a conflict of authority between him and the defendant during his lifetime which would have brought about a boundary survey. We hold with the district judge that the plaintiffs have not made out their title to the land claimed in their petition, that same justly belongs to the ■defendant.

Judgment affirmed. Plaintiffs and appellants to pay the costs in both courts.