text:
    No. 4117
    Second Circuit
    CRICHTON CO., LTD., v. ETHERIDGE
    (April 5, 1932. Opinion and Decree.)

      Drew & Richardson, of Minden, attorneys for plaintiff, appellant.
    R. F. Langston, of Minden, attorney for defendant, appellee.
   McGREGOR, J.

This is a suit on open account for supplies used in making a crop on defendant’s farm in the year 1927. Attached to the petition is an itemized statement of account which, including interest computed to January 1, 1930, amounts to $343.63. The account is made out in the name of “O. A. Etheridge for E. L. Martin,” and shows credits totaling $205.47. Alleging amicable demand and failure to pay, the plaintiff prays for judgment against the defendant for $138.16, with legal interest from January 1, 1930.

The answer of the defendant denies the indebtedness and alleges that the plaintiff furnished supplies to E. L. Martin, one of his tenants, and that he guaranteed the account to the extent of $205, but that that amount has been paid in full.

On trial in the lower court there was judgment in favor of the defendant rejecting plaintiff’s demand, and from that judgment plaintiff is prosecuting this appeal.

On February 9, 1927, the day that the account was opened, the defendant wrote and caused to be delivered to the plaintiff an order which reads as follows:

“Grove, La. 2/9/1927
‘■‘Mr. Tom Glass,
“Please let Mr. Martin have some lard, 8 lbs., sugar 10 lbs., flour 48 lbs., meat 15 lbs., soda 25 cts., and anything he may need.
“O. A. Etheridge.”

It is admitted .that this written order is the basis upon which the plaintiff began to furnish the supplies that are listed in the account sued upon, but the defendant alleges in his answer that he placed an oral limit of $205 as being the greatest amount which he would guarantee, and that this limit was reached about June 1, 1927. In his testimony, however, he states that the limit was $200, and that that was the amount of supplies that he made arrangements with the plaintiff in the beginning to furnish his tenant, Martin. He testifies further that after the crop had been “laid by” he went to plaintiff’s office to see how .the account was standing and found that it was about $205, and that he agreed then to stand for the additional $5. His testimony on this point is as follows:

“A. I told him when he laid by. I went in .there and told him when Mr. Martin laid by and turned the mule in the lot. I went in there and told Mr. Glass I wanted to know how much Mr. Martin owed. He said, ‘Let us go in the office.’ He had it all run up on the books and he said, ‘It is to date Two Hundred Five ($205.00) Dollars.’ I said, ‘That is all right, Mr. Glass.’ I says, ‘Two hundred five ($205.00) dollars, all right. That is Five ($5.00) dollars over what I instructed you but that is all right. Just let it go.’ ”

In his testimony, Mr. Glass, the president of the plaintiff company, denies this statement, and denies that there was any particular limit on the amount to be supplied. He testifies that the only conversations he held with the defendant were on occasions when he was urging the plaintiff to hold Martin down on his purchases.

The defendant was farming his land on what is commonly known as the share-crop system, and accordingly whatever crop Martin, the tenant, made, one-half of it belonged to him and the other half belonged to .the defendant. As a part of this system, the land-owner often, either furnishes the necessary supplies to’ the tenant for making the crop and charges them to the tenant, or he guarantees some one else who furnishes them. Of course, in either case ■the farmer must and does keep a close watch on the tenant’s account so as to hold it within the limit of the probable value of the tenant’s half of the crop when harvested. As a general rule, and it is common knowledge that, if a tenant needs help at the beginning of the crop season, he will also need it at least until he can begin to realize something from his crop after he begins to harvest it. So it would seem that no farmer would ordinarily withhold supplies from his tenant at what is called ‘‘laying-by time.” It does not appear reasonable in this case that the defendant would have refused to go further in the matter of providing a way for his tenant to secure supplies with which to harvest his crop. The tenant has to live during that season as well as when the crop is being planted and cultivated.

In view of the fact that the written order of February 9, quoted above, is the basis of the beginning of this account, and in view of the further fact that that order contains no limit either as to time or amount, it is sufficient to bind the defendant for the payment of any reasonable amount purchased by Martin during the entire crop season, unless defendant can prove his allegation that when the account had reached about ’ $205, or $5 more .than the limit which he' claims to have been agreed upon in the beginning, he notified the plaintiff he would not be responsible any further. This is a special defense, and the burden of proof is on the defendant. As stated above, plaintiff denies that any such notice was given to' it. Martin, in a vague, uncertain manner, undertakes to corroborate the defendant on this point, But he does it in such way that his testimony has no value whatever. If there had been this general understanding that the limit had been reached, it is certain that Martin would have made a new arrangement with the plaintiff or some one else. This was not done. Nothing of the kind was ever mentioned between the parties. The account was kept open without a break, and Martin continued to get supplies from plaintiff just as he had been doing.

This is a significant fact: In his brief counsel for defendant calls attention to the fact that the first four payments on the account were $47.03, $46.90, $42.40 and $47.16, and that the last payment was $21.-98. He argues that in the first four items of credit each represents Martin’s half of a bale of cotton, and that the $21.98 payment was made in that exact sum in order to balance that part of the account for which defendant was responsible. It is argued that the sum of $21.98 was much less than one-half the value of a bale of cotton. He says:

“The bale of cotton from which this $21.98 came must have brought as much as the other cotton; therefore, the amount paid on November 26 represented a fractional part of one-half the amount the bale brought.”

This argument is not sound. It presumes that there was a whole bale of cotton from which the said amount of credit came, when, as a matter of fact, this was not established by the testimony. On the contrary, it is conclusively proved by the testimony .that plaintiff got all of Martin’s half of the cotton. So that last payment is bound to have come either from a fractional or a lightweight bale. That often happens on a farm at the end of .the season. Furthermore, if it had been a fact that it was announced and known by all that defendant’s obligation was at an end, plaintiff would have gotten the rest of Martin’s interest in that last hale of cotton, if there had been any left. Counsel for defendant argues that plaintiff’s president is a shrewd business man. That being a fact, his very shrewdness would have dictated this course of action, for if defendant’s liability were at an end, plaintiff would certainly have secured all of Martin’s cotton at the time that it was in its hands. Another thing that stands out prominently is this: There is no point in the account where the amount is exactly $205.47, which defendant says he agreed to pay and did pay. At the end of July the account stood at exactly $204.27. If defendant had been planning to pay up .to date including that date, that is the amount he would have paid, and not $205.47. As we see it, the truth of the matter is Martin’s half of the crop brought $205.47, and every cent of it was applied to his account with the plaintiff. It so happens that this amount was within a few cents of what the account was at or near “laying-by .time,” The crops fell short of everybody’s expectation, and the defendant has sought to establish that his guarantee covered only such portion of the account as would equal the value of the crop actually made. In this we think he has failed. Plaintiff’s account with defendant’s tenant began with written authority and guaranty, the withdrawal of which has not been satisfactorily established.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, reversed, and set aside, and it is now ordered that there be judgment herein in favor of the plaintiff, Crichton Company, Limited, against the defendant, O. A. Etheridge, as prayed for in the sum of $138.16, with 5 per cent interest from January 1, 1930, and all the costs of both courts.

DREW, J., recused, and .takes no part.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 4155
    Second Circuit (Second Division)
    CONTINENTAL SUPPLY CO. v. PALMER
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiff, appellant.

      Cook & Cook and C. D. Egan, of Shreveport, attorneys' for defendant, appellee.
   CULPEPPER, J.

The defendant, J. F. Palmer, for a number of years was in the business of drilling wells. He owned three drilling rigs, but from 1928 to 1930 was not actively engaged in that line of business. He owned a farm some" place in Texas, the operation of which took about half of his time. His home in Shreveport was at 4634 Fairfield avenue, where his family lived, and where he returned and lived whenever his business did not call him to other places.

During the year 1929, his drilling rigs were idle. His son, T. D. Palmer, obtained a contract to drill a well in Caddo parish for a man by the name of Lide. Defendant, because of a natural interest in his son’s welfare, permitted the use of one of his rigs, free of rent, to drill this well. It was necessary from time to time, during .the drilling, to replace missing or broken parts of the rig, and also to obtain other supplies.

T. D. Palmer had worked for his father for a number of years, most of the time doing actual manual work around a drilling rig, and had on a few occasions bought articles from the plaintiff in the name’ of his father. One purchase, in 1927, was for nearly $200 that was bought by, and delivered to, the son and charged to the father, and paid, with no order of any sort, not even by telephone, except that the defendant telephoned his son to buy these articles for a job he was on at the time.

The defendant had done some business with the plaintiff for a number of years and enjoyed a good credit. Oil well supplies were always delivered without question, charged to his account when requested, and the bills promptly settled.

Although the son, T. D. Palmer, had the contract for drilling this well, he applied to the plaintiff, he says, for a line of credit for the necessary supplies for the job in his own name. But plaintiff’s Shreveport manager would not sell T. D. Palmer, he said, unless permitted to charge the same to his father, the défendant. This is denied, however, by T. D. Palmer, who gave a different version of the arrangements for credit.

At all events, T. D. Palmer, purchased, beginning August 14, 1929, and ending October 24, 1929, replacement parts to the rig and other supplies for the well to the amount of $705.77, which were charged to defendant and invoices mailed to the defendant at Shreveport from the St. Louis office within a few days of the purchase. Statements were also mailed out from time to time of subsequent purchases. These invoices and statements were apparently addressed sometimes to the defendant’s residence, and sometimes to the defendant at 517 Rieou-Brewster building, where his son had an office.

The defendant was absent in Texas from March until June, 1929, when he returned to h'is home in Shreveport. He remained in Shreveport from June "until the latter part of August, or first part of September, when he again returned to Texas, and stayed until Thanksgiving. His son during this period was also living at defendant’s home.

While defendant was at home, probably in August, he saw two or three envelopes of the plaintiff company addressed to himself. He opened one of them, he says, and saw that it was a monthly statement, as he explained it, in the neighborhood of $150 or $200. It was then, he says, that he rang up the office of the plaintiff, in Shreveport, and told some one in the office, he didn’t know who, not to charge anything to him any more without a written order. After this he received two or three invoices, but did n'ot speak to plaintiff about it, although he did to his son.

There was judgment for the defendant, and plaintiff has appealed.

The plaintiff undoubtedly was led to believe, and therefore assumed, under the circumstances, that whatever defendant’s son purchased the defendant would be responsible for. The son was living in defendant’s home, had worked for his father for a number of years, and had at least on one occasion made one substantial purchase in his father’s name, which was paid without question, and for which no order had been given, either written or verbal.

Plaintiff denies .that defendant ever called up any one in authority and repudiated the act of his son after he had definite information that the son was having the supplies charged to the defendant. It seems to us very unlikely .that plaintiff would have continued to charge these supplies to the defendant after it had been forbidden to do so. And if the defendant had wanted to be certain that plaintiff had ■this information, and had wanted to prevent further embarrassment and save plaintiff further loss, there are numbers of ways in which he could have preserved an absolute record of any such notice that he might have given. In a matter of this importance, we think defendant owed the plaintiff the duty to make his disavowal of this conduct of his own son certain beyond all controversy. This he failed to do. A mere telephone conversation with some unknown person, even if it took place, is, we think, not sufficient.

Defendant filed in evidence two documents which he relies upon to corroborate the action he claims he took in this case after he found out what was going on. One of these is a notation on an invoice for which he mailed a check to cover, directing the plaintiff not to charge anything to his account without a “written order.” It is dated May 20, 1926. The other purports to be a letter to the same effect, dated April 25, 1928, addressed to plaintiff „and signed by defendant, which he says he mailed by posting it in the mail box in the front porch of his home.

Plaintiff denies having received either of them. Letters and requests to this effect are frequently received by plaintiff, it appears, and, whenever they are received copies are immediately furnished to each employee, who is required to place his initials on .the original as evidence of his knowledge of its existence. The employees are then to be governed accordingly.

Both of these documents have the earmarks of being manufactured evidence, and since no knowledge of the existence of either of them was brought home to any employee, in the usual or customary manner, and since .the original of the letter could not be found in the files, we are led to the conclusion that they were, in fact, never sent. Besides, the notation on the invoice dated May 20, 1926, is alleged to have been made a year previous to the invoice of $193.46, purchased by the son admittedly without any kind of an order, verbal or written, except to the son, and which was paid by defendant without question.

We do not think defendant can he held liable for any of the articles that were charged to him before he had notice of such purchases. But defendant admits having received notice both in the form of invoices and a statement, while the account was still running, that his son was buying supplies from plaintiff, and having them charged to defendant, and, we think, he did not take sufficient means to stop it.

What had been theretofore an unauthorized act of the son became ratified upon the defendant’s failure to give the plaintiff notice of his disavowal of his son’s acts, at least to the extent of rendering him liable for all goods purchased after knowledge of the son’s conduct had been conveyed to him. Mangum v. Bell, 20 La. Ann. 215; Szymanski v. Plassan, 20 La. Ann. 90, 96 Am. Dec. 382; Civ. Code, art. 3010.

And it is immaterial whether they enured to defendant’s benefit or not, although the filial interest that a father would naturally have for his son could be urged as an indirect benefit to say the least, but defendant’s failure to make effective what he says now was a formal disavowal of the contract certainly induced plaintiff to continue to part with its merchandise, to its injury, and, since defendant could have effectively prevented this, he should be held liable for the merchandise delivered after notice had come to him that plaintiff was delivering goods to his son and charging them to defendant.

Defendant says, that the statement which came to his home amounted to $150 or $200, and which had been sold and delivered without his knowledge up to that ■time, and for which he is not liable. We will give defendant the benefit of the larger figure, and put it at $200. We think he is liable for the balance of the account charged against him, and incurred by the son, subsequent to this notice, which amounts .to $505.77.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there now be judgment in favor of the plaintiff and against defendant in the sum of $505.77, with legal interest thereon from October 24, 1929, together with costs of both courts.


author: TALIAFERRO, J.

text:
    No. 4189
    Second Circuit (Second Division)
    BEACH SUPPLY CO., INC., v. RARITAN CO., INC., ET AL.
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)
    Wilson & Abramson, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   TALIAFERRO, J.

Plaintiff sold to defendant, Raritan Company, Inc., certain plumbing supplies for use in a building owned by it in the city of Shreveport, the cost of which amounted to $883.68, and to liquidate the account defendant gave to plaintiff its note payable in monthly installments of $60. This note was delivered to plaintiff on May 21, 1929, the day after a furnisher’s lien had been filed by plaintiff against defendant's property. Plaintiff desired a note in liquidation of its account on which it could borrow money, and, finding that defendant’s open note could not be negotiated, and informing Mr. James A. Denny, its president, of that fact, he indorsed it personally, and thereafter the note was assigned to a third person who advanced money on it. By payments the note was reduced, while in the hands of this third person, to $157.24; and was re-acquired by plaintiff, who brings this suit against the maker and indorser to recover said balance.

Defendants, aver that the note sued on was executed, indorsed, and delivered in consideration of the agreement on part of plaintiff that its account would be liquidated thereby and fully settled, and no lien filed against defendant’s property, but ■that, regardless of this agreement, plaintiff did file said lien; that payments were made on said note while in the hands of said third person, but none since plaintiff re-acquired it; that said note is null and void in the hands of plaintiff.

The Raritan Company pleads estoppel against plaintiff’s suit on said note, and failure of consideration, for the reasons above set forth. Defendant Denny alleges that his. signature as indorser of the note was obtained by fraud and misrepresentation.

The lower court rejected defendants’ contentions and gave plaintiff judgment for the balance due on the -note. Defendants' have appealed.

The record discloses that, when the plumbing supplies were purchased from plaintiff, in fact before the sale was closed, the probability of defendant being able to furnish a- negotiable note to cover the price was discussed. The note was executed nearly a month before delivery to plaintiff.

Mr. B. H. Beach, plaintiff’s president, testified that he could not dispose of the note unless supported by recorded furnisher’s lien. He does not touch on the circumstances. of Mr. Denny’s endorsement of the note, but is positive his company did not agree not to file its lien.

Mr. Denny testified that he indorsed the note in order to settle the account his company owed plaintiff, after the note had been brought back to him by his agent, Mr. Mabry, accompanied by Mr. Beach, who stated that the note could not be negotiated without the personal indorsement of Mr. Denny. He does not state positively that plaintiff agreed not to file its lien in consideration of his indorsement on the note, but said he "didn’t have any idea that there would be a lien filed.” The lien had already been filed. Defendant Raritan Company filed suit to have .the inscription of said lien canceled and erased, but the record does not disclose the outcome of that suit.

It is not contended by defendants that the note sued on, nor .the account it was intended to liquidate, has been paid in full. They seek to escape liability for the balance due on the note, after having paid the greater part of it, simply because plaintiff filed its lien in violation of what they deem to be an agreement not to do do. However, on this score, the evidence does not establish that plaintiff agreed to not file the lien. No effort is being made to foreclose the lien, and certainly, when defendants have paid the balance due on the note the lien, whatever may be said of its present status will have become extinguished.

By their suit to have the lien erased from the records, defendants admit execution of the note in settlement of the account and liability thereon, impliedly if not expressly, while in their defense to the present suit they deny liability on the note because the lien was filed. These positions are obviously inconsistent.

We are unable to agree with defendants’ position that they are not responsible for payment of the balance on this note. There was a valid consideration for the note and its indorsement by Mr. Denny, and that consideration has not failed to any extent. The note was given for an express purpose, and was indorsed for an express purpose. No circumstances attending these transactions indicate any fraud was practiced, and the record does not show that any misstatement of facts influenced the affixing of the signatures to the note.

The judgment appealed from is correct, and it is hereby affirmed.


author: REYNOLDS, J.

text:
    No. 3521
    Second Circuit
    HICKMAN v. DAHLEN
    (May 8, 1929. Opinion and Decree.)

      Thompson & Berry, of Winnsboro, attorneys for plaintiff, appellant.
    E. B. Moore, of Winnsboro, attorney for defendant, appellee.
   REYNOLDS, J.

On October 10, 1928, plaintiff, S. N. Hickman, sued the defendant, B. H. Dahlen, to obtain judgment for $16,500, with interest thereon at the rate of 8 per cent per annum from October 1, 1928, until paid, and 10 per cent on the amount of principal and interest, as attorney’s fees, as rent of certain immovable property situated in the town of Winnsboro, La., and of certain movable property situated therein, for the period beginning October 1, 1928, and ending September 30, 1933, and for judgment canceling the lease and restoring possession of the leased premises to him.

He alleged that the rent was past due and unpaid and that he had a lessor’s privilege on all property found on the leased premises, other than that leased by him to the defendant, to secure the payment of the rent, and that he had good reason tq believe, and did believe, that unless the property on which his privilege rested was provisionally seized the lessee would remove it from the leased premises and thereby deprive him of his privilege thereon, and he prayed that a writ of provisional seizure issue.

Attached to the petition as a part thereof is a contract of lease by authentic act from plaintiff to defendant of certain immovable property situated in the town of Winnsboro, La., known and described as “Hotel Franklin,” and of certain movable property, consisting of hotel furnishings. The lease is for a term of five years, beginning October 1, 1928, and the price is $275 a month, payable monthly, in advance.

It is stipulated in the lease contract, among other things, that:

“It is distinctly understood and agreed that said rent shall bear 8% per annum interest after maturity and 10% upon the sum of principal and interest as attorney’s fees in the event that it should be necessary to institute legal proceedings hereunder, or place this contract in the hands of an attorney at law for any action hereunder. It is expressly agreed and understood that the failure to promptly pay any one of said rent installments at its maturity, that is to say, on or before the first of each month and in advance as herein-above stipulated, shall, at the option of the lessor herein, mature all the rent due hereunder and the entire obligation herein stipulated shall immediately become due and exigible at the option of the lessor.”

A writ of provisional seizure issued and under it there was seized various articles of movable property situated upon the leased premises.

The defendant answered, admitting the execution of the lease contract and that the $275 rent for the month of October, 1928,.had not been paid, but denied that he was seeking to remove or intended to remove from the premises any of the effects on which plaintiff’s lessor’s privilege bore, and he alleged:

“Further- answering, your respondent shows that the said plaintiff, upon the filing and service of this suit, expressly demanded the dissolution of the lease herein sued on, and prayed to be given the possession thereof, which said demand was acquiesced in by your respondent, and the premises were accordingly delivered to the possession of the said plaintiff, who has had the absolute possession, dominion and control of said leased premises since the service of the process in this suit upon your respondent.
“That the dissolution of the lease, in the manner as alleged in the foregoing paragraph, the plaintiff having taken charge and full possession of the leased premises, a hotel in this case, and having continued to operate the same in his own name and for his own account since the date of its delivery to him on October 10, 1928, releases your respondent from any obligation under the terms of the lease for the payment of the rent from the date of the dissolution, and that the plaintiff is entitled to recover of and against your respondent a judgment herein for the rent or right of occupancy from October 1, 1928, to October 10, 1928, and the lien and privilege on the property herein seized should be recognized for no further amount.”

Defendant’s answer was filed on November 5, 1928.

Various creditors of the defendant filed interventions in the suit, claiming to own or to have a privilege superior to that of the plaintiff on certain of the articles provisionally seized, among them Remington Cash Register Company, of Ilion, New York, claiming to have a vendor’s privilege on “one (1) Remington Cash Register No. B 812 x, 110, 359, walnut finish” to secure the payment of $144.38, with legal interest thereon from judicial demand, and 10 per cent on the amount of principal and interest, as attorney’s fees, being balance of purchase price of the article in question, which indebtedness is represented by a promissory note for the sum of $157.50, dated September 20, 1928, drawn payable to the order of Remington Cash Register Company, Inc., of Ilion, N. Y., signed, “The New Franklin Hotel, by Ben Dahlen, Jr.,” and payable in monthly installments of $13.12 each, except the last installment, which is $13.18. It is stipulated in the note that failure to pay any monthly installment shall at the option of the holder cause all unmatured installments immediately to become due. In an accompanying contract for the purchase of the article it is stipulated that:

“Should the services of any attorney become necessary in order to collect all or any part of the amount due under the terms of this contract, the lessee agrees to pay attorney’s fees of ten per cent, of the amount involved.”

The intervener prayed for judgment against the defendant for the amount of its debt, interest and attorney’s fees; that its vendor’s privilege on the article be recognized; that the article be recognized; that the article be appraised and sold separately from the rest of the property seized; and that its claim be paid out of the proceeds of the sale of the article in preference to plaintiff’s claim.

Answering the petition of intervention, defendant admitted the purchase of the article and the existence of the indebtedness claimed by intervener, but denied that the sale was made in the state of Louisiana, and alleged that it was made in the state of New York, and alleged that for that reason the intervener had no privilege on the article for the balance of purchase price owing by defendant to intervener therefor.

On these issues the case was tried, both as between -plaintiff and defendant and as between intervener and defendant, and there was judgment in favor of the plaintiff, S. N. Hickman, and against the defendant, B. H. Dahlen, decreeing the lease to be dissolved as of the date of the filing by defendant of his answer, to-wit, November 5, 1928, and for the sum of $320.80, as rent of the leased premises from October 1, 1928, to November 5, 1928, with interest thereon at the rate of 8 per cent per annum from October 1, 1928, until paid, and for 10 per cent on the amount of principal and interest, as attorney’s fees, and all costs of suit, and recognizing a lessor’s privilege in favor of plaintiff on all property seized, to secure the payment of the judgment, and ordering the property sold according to law for its satisfaction.

And there was judgment in favor of the intervener, Remington Cash Register Company, Inc., of Ilion, N. Y., and against defendant, B. H. Dahlen, for $144.38, with legal interest thereon from judicial demand and 10 per cent on the amount of principal and interest, as attorney’s fees, and recognizing a vendor’s privilege in its favor, subordinate, however, to plaintiff’s lessor’s privilege, on the cash register described in its petition, to secure the payment of the judgment, and ordering the cash register sold separately from the other property seized, and that intervener’s judgment be paid out of the proceeds of the sale in preference to all creditors of defendant, other than plaintiff, in the event the sale of the seized property should yield more than enough to pay the judgment in favor of plaintiff.

From this judgment the plaintiff appealed, and the defendant, B. H. Dahlen, has answered the appeal and asks that the judgment be amended by decreeing that the lease was dissolved on October 10, 1928, instead of o.n November 5, 1928, and by reducing from $320.80 to $91.33 the amount of money he is adjudged to owe plaintiff for rent, and by taxing plaintiff with all costs of suit incurred subsequent to October 10, 1928.

OPINION

It is conceded by both plaintiff, S. N. Hickman, and defendant, B. H. Dahlen, that the only issue between them is whether the lease contract was dissolved on the date of the commencement of the suit, October 10, 1928, or on the date of the filing of defendant’s answer, November 5, 1928.

The lower court decreed the lease to be dissolved as qf the date of filing of the answer and awarded plaintiff judgment for rents thereunder up to that date.

On the date the suit was filed the sheriff executed the writ of provisional seizure on all movables situated upon the leased premises and on the same day the defendant vacated and surrendered up possession of the premises and a Mr. Black was immediately put in possession of the. premises, including the property therein provisionally seized, and thenceforth operated the hotel as a going concern. And it is contended by defendant that Black was the agent of plaintiff and that he should not be required to pay rent for the premises after the date plaintiff resumed possession of it. On the other hand, plaintiff contends that Black was not his agent but the representative of the sheriff.

The plaintiff, Hickman, testified:

“Q. On the 10th of October, the date of the filing of this suit, and the seizure of the property involved, had you arranged to have Mr. Black from Tallulah, here, to take charge of the hotel?
“A. Not for me personally, no, sir. I had arranged to rent before foreclosure, and to appoint Mr. Black as keeper.
“Q. Who communicated with Mr. Black and arranged the terms of his employment?
“A. I myself came to Mr. Price’s office and asked Mr. Price to appoint Mr. Black to take charge of the hotel.
“Q. Upon what- terms was Mr. Black engaged to operate the hotel?
“A. Well, he was supposed to take charge of the hotel, and the court to fix his salary or allow his salary.
“Q. Did you or not give Mr. Black any personal guaranty or assurance of what his compensation would be?
“A. I didn’t guarantee anything. We agreed his salary would be $175.00 if the court would allow it. In other words’ I didn’t want my hotel closed up, and get the sheriff to appoint Mr. Black to take charge, and I have had nothing to do with it since.
“Q. At about what time of day or night was the levy under this writ of seizure made?
“A. About or around 6 o’clock.
“Q. Was Mr. Black present and ready to take charge?
“A. Yes, sir.
“Q. Did he immediately take charge, after serving the papers?
“A. Yes; he took charge that night.
. “Q- Is it a fact that Mr. Black has had the exclusive control of the amounts and operation of the hotel since that time?
“A. Yes, sir.
“Q. Mr. Dahlen has not been back, or had anything to do with the ’management since he moved out?
“A. No, sir.”
The Mr. Black referred to testified:
“Q. Mr. Black, have you been in charge and operation of the Franklin Hotel belonging to Mr. Hickman since October 10th?
“A. Yes, sir.
“Q. Mr. Dahlen has not had anything to do with the operation of that hotel since that date?
“A. No, sir.
“Q. You were present, and took charge at the time, the time of the seizure, and took charge immediately?
“A. Yes, sir.
“Q. There was and has been no interruption in the operation of the hotel?
“A. None.
“Q. The guests who were in the hotel at the time it was seized were not disturbed and continued to receive the accommodations of the hotel after the seizure?
“A. Yes, sir.
“Q. Who has received the emoluments or revenues from the operation of the hotel, since you took charge of it?
“A. What revenue has been has gone to maintain the hotel.
“Q. You have received them as they have been in and the guests have paid the expenses of the operation of the hotel?
“A. I have.
“Q. Have you received a salary for that service?
“A. I have.
“Q. Who has paid you the salary, Mr. Black?
“A. The hotel has paid it. I have charged it to the hotel.
‘‘Q. Mr. Dahlen has not received any revenue from the hotel since the 10th of October, has he?
‘‘A. No, sir.”
A. L. Price, the sheriff, testified:
“Q. Did you not take into your possession the building, or right of occupancy, or merely the property found therein?
“A. Why, my understanding was just the property in the hotel was tq be seized.
“Q. What was your understanding, Mr. Price, all parties concerned, as to howl the matter of the operation of the hotel, after the seizure, should be carried on?
“A. I appointed a keeper and placed him in charge and told him to keep a strict accounting of everything that he used.
“Q. Of the property that you had under seizure?
“A. Yes, sir.
“Q. Who was the keéper, Mr. Price?
“A. Mr. T. F. Black.
"Q. What was the occasion of the appointment of Mr. Black, or reason for the appointment of Mr. Black?
“A. He was suggested as a practical hotel man, and a man that he relied on to take care of the property.
“Q. Who made that suggestion to you, Mr. Price?
“A. Mr. Hickman.
“Q. Is it not a fact that Mr. Hickman, prior to and at the time of the seizure, instructed you to put Mr. Black in operation of the hotel and requested that you appoint him keeper of the property that you had seized?
“A. Yes, sir; he asked me to appoint Mr. Black keeper.
“Q. Have you, since the 10th day of October, had anything to do with the operation or management of that hotel?
“A. No, sir.”

It very clearly appears from this evidence that the defendant gave up his lease and surrendered to plaintiff possession of the leased premises on October 10, 1928, and that plaintiff, on that date, resumed possession of the hotel building.

It is well settled in the jurisprudence of Louisiana that a lessor cannot accept the surrender of the lease and resume possession of the leased premises and hold the lessee for the use of the premises thereafter. Sigur v. Lloyd, 1 La. Ann. 421; Fox v. McKee, 31 La. Ann. 67; Mahan v. Lafaye, 3 La. App. 445; Castagna v. Marshall, 3 La. App. 778.

The leased premises were not seized. Only the movables therein belonging to defendant were. The sheriff had no authority to operate the hotel and he testifies that he did not do so. It is shown by the evidence that plaintiff put Black in possession of the hotel premises and at his request the sheriff appointed Black custodian of the seized movables. This occurred on October 10, 1928. Therefore plaintiff was not entitled to receive rent of the premises from defendant subsequent to October 10th, and the trial court erred in allowing plaintiff rents after that date.

In respect of the judgment in favor of the Remington Cash Register Company, Inc., of Ilion, New York, the contention of plaintiff is that the contract between that company and the defendant was a New York contract and that, it not being a Louisiana contract, intervener had no vendor’s privilege.

The sale of the cash register was made to defendant by the Monroe Store & Office Equipment Company and shipped to defendant from Monroe, La.

Mr. Mayo testified:

“Q. Mr. Mayo, are you an employee of the Monroe Store & Office Equipment Company?
“A. Yes, sir.
“Q. This Monroe Store & Office Equipment Company has an agency for the sale of goods for the Remington Cash Register Company, Inc.?
“A. Yes, sir.
“Q. They keep on hand at all times various numbers and kinds of goods for the Remington Cash Register Company, Inc.?
“A. Yes, sir.
“Q. The Monroe company has authority to complete sales — that is, they have authority to do more than take orders for sales ?
“A. Yes, sir.
"Q. You are personally acquainted with the sale of a cash register sold to Mr. B. H. Dahlen through his. son?
“A. Yes, sir; I handled the transaction myself.”

He further testified that goods are shipped by the Remington Cash Register Company, Inc., to the Monroe Store & Office Equipment Company and that sales are made by them, subject to the "approval of the credit man of the Remington Cash Register Company, Inc., whose office and residence is in New Orleans.

The contract between the Remington Cash Register Company, Inc., and defendant was, we think, a Louisiana contract, and the. lower court correctly recognized a vendor’s privilege in favor of that company on the cash register sold by it to defendant.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount of the money award in favor of plaintiff, S. N. Hickman, and against deféndant, B. H. Dahlen, from $320.80 to $91.33, and that in all other respects the judgment appealed from be affirmed. Plaintiff to pay the cost of the appeal.


author: DREW, J.

text:
    No. 4182
    Second Circuit
    PIRKLE & WILLIAMS, INC., v. SHREVEPORT JITNEY JUNGLE, INC.
    (April 5, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

This suit was instituted by plaintiff against defendant on July 22, 1930. Plaintiff claimed the sum of $1,450, with interest from July 15, 1930, until paid, alleging that on July 1, 1929, Victor M. Mahr leased to defendant company a certain store building, No. 127 Kings Highway, Shreveport, Louisiana, for a term of two years, the consideration being $100 per month, payable in advance. That on July 25, 1929, plaintiff acquired the property affected by the lease from Victor M. Mahr, together with his lessor’s rights, lien and privilege; that the defendant had defaulted in payment of the rent since April 15, 1930, making $350 past due and unpaid at the time of the filing of this suit, and leaving a balance of $1,100, payable $100 per month, beginning August 1, 1930. A writ of provisional seizure was prayed for and issued, and on the same day, April 22, 1930, all the property contained in the leased premises was seized.

On August 8, 1930, defendant made application to have the property released to it on bond, the amount of the bond, $1,500, was agreed upon by attorneys for plaintiff and defendant and an order signed.authorizing the release of the property to defendant, with full reservation of all the rights of the parties. On the 12th day of September, 1930, defendant moved to dissolve the writ of provisional seizure and prayed for judgment in the sum of $150, as attorney’s fees, and $15, the amount of the premium on the bond, as damages sustained as a result of the improper issuance of the writ. It averred that at the time suit was filed and seizure made, plaintiff had received all rent demandable, except for the months beginning May 26, 1930, and ending July 26, 1930, for which it held defendant’s checks. After reserving its rights under the foregoing motion, answer was filed on July 12, 1931, in which the following issues were set up:

I. That the former owner of the premises, Victor M. Mahr, leased the premises to defendant, the lease to he effective July 1, 1929; that the building was at the time in course of construction and incomplete, and possession was not delivered until July-26, 1929;

II. That when plaintiff acquired the premises from Mahr on June 28, 1929, as evidenced by deed recorded July 24, 1929, the lease which Mahr had theretofore executed in favor of defendant had not been recorded, but that it was recorded thereafter and therefore, as plaintiff took the premises free of any recorded lease, defendant was not bound for the unexpired portion of the lease;

III. It further alleged that it had paid to Mahr the sum of $100 for the rent beginning July 26, 1929, and ending August 26, 1929, and that it had paid to plaintiff all rent beginning August 26, 1929, and ending July 26, 1930, aggregating $1,100.

IV. It further alleged that on July 17, 1930, it advised plaintiff of its intention to vacate the property before the termination of the current month, ending July 26, 1930.

V. It further averred that in the event the court should hold that the property was subject to the original lease executed by Mahr and that defendant was bound thereon, then, in the alternative, that plaintiff, on July 22, 1930, violated its obligation to maintain defendant in possession of the leased premises during the continuance of the lease by the manner in which the sheriff executed the writ of provisional seizure, and averred particularly that the sheriff, under the direction of plaintiff, demanded the keys to the premises and thereafter used the premises as a warehouse to store the property seized. That on the day the seizure was made defendant demanded in writing that plaintiff release the premises to it; that its demand was received by plaintiff on July 2'3, 1930, but that notwithstanding no reply was received and the sheriff continued to use the premises as a warehouse to store the effects seized, until these effects were released on bond August 8, 1930.

The case was tried in the lower court. The motion to dissolve was taken up first; thereafter, the case was tried on the main demand. The lower court rendered judgment in favor of plaintiff for the sum of $1,400, for fourteen months’ rent at $100 per month, beginning April 26, 1930, with legal interest thereon from said date until paid, less a credit of $200 of date July 23, 1930. It maintained the writ of provisional seizure, recognized plaintiff’s lessor’s lien and privilege on the property seized and ordered it sold in accordance with the law. From this judgment the defendant has appealed.

Several checks filed in evidence bear the notation “for rent from the 26th of one month to the 26th of the next month.” These checks were accepted as written and cashed, and it corroborates defendant in his testimony that the rent was due on the 26th day of each month. This being true, at the time of the seizure rent was due for the period beginning May 26, 1930, to July 26, 1930, amounting to $200.

Defendant contends that when he gave checks on July 17, 1930, to plaintiff covering this period of rent, the rent was paid. We do not agree with this contention, for the evidence shows that payment was refused on presentation of the checks to the bank, and until the checks were cleared, the rent was not paid. Therefore, at the time of the filing of this suit and the seizure of the property in the premises, there was at least the amount of $200 due plaintiff for past due rent. Defendant was removing the goods from the premises and plaintiff was justified in having a provisional seizure issue.

There is no merit in defendant’s contention that the lease was not binding for the reason that it was not recorded at the time of the purchase of the property by plaintiff. The facts are that the lease was entered into by plaintiff and Victor M. Mahr, on the 24th day of June, 1929; Mahr was at the time owner of the property. The lease was not filed or recorded until later. On July 25, 1929, Victor M. Mahr executed a deed to the property to plaintiff herein and in that deed it provides that the sale is made subject to certain leases affecting said property describing other leases, and “one in favor of Jitney Jungle, Incorporated, of Louisiana, duly filed and recorded in the Clerk’s Office of Caddo Parish, Louisiana.”

The deed to plaintiff was filed and recorded July 26th, at 8:59 a. m., and the lease was filed and recorded on July 26, 1929, at 10:30 a. m. The lease filed in evidence shows the lessee to be the “Shreveport Jitney Jungle Company, Inc.,” and not “Jitney Jungle, Inó., of Louisiana.” The evidence fails to disclose that any other lease was entered into, by defendant and the fact that the name of the lessee in the lease contract and in the deed, with the assumption of the lease from Mahr to plaintiff, is different, is not raised by defendant and justifies us, from the evidence, in assuming that the lease filed in the record is the same lease under which defendant held possession of the premises and the same lease plaintiff assumed when purchasing the property.

It is also true that the deed to plaintiff referred to a lease duly filed and recqrded, when the lease filed in the record was not recorded until after the recordation of the deed and neither was it filed for recordation until after the filing of the deed. This fact is what defendant bases one of its defenses on.

Although we should hold that the lease in question was not assumed in the deed of purchase by plaintiff, the record clearly shows that plaintiff and defendant affirmed the lease by their actions, defendant, in occupying the building and paying rent in accordance with the terms of the lease, and plaintiff, in accepting the payment of rent. There was no other lease contract between plaintiff and defendant and by their acts they both ratified the written lease, and it was binding on them both.

Defendant entered into the lease with Mahr before the building was completed. The lease recites the terms thereof to begin July 1, 1929, and expire July 1, 1931, at a monthly rental of $100, payable each month in advance on the first day of the month. On July 1, 1929, the building was not completed, and when it was completed and possession given defendant is disputed. Plaintiff contends that defendant took possession on July 15, 1929, and that the rent was due on the 15th of each month. Defendant contends that it was not given possession until July 26, 1929, and that the rent was due on the 26th day of each month. We think the preponderance of testimony bears out defendant’s contention.

The president of the plaintiff company testified that he and defendant discussed their different contentions and he knew that defendant claimed the rent was due from the 2'6th to the 26th of each month, and after that for a number of months accepted and cashed defendant’s checks, with the notation qn them, “rent from the 26th to the 26th” of the respective month for which the check was given in payment of rent.

Cancelled checks were offered in evidence showing that the rent had been paid up to May 26, 1930. The check dated May 5, 1930, bears the notation “rent for May,” which was accepted and cashed by plaintiff. On June 14, 1930, defendant wrote a check bearing the following notation: “Rent, 127 Kings Highway, for June, 1930.” He did not send this check to defendant at that time and on July 17, 1930, the president of plaintiff company called on defendant’s president in person, at which time he drew a check, dated July 17, 1930, bearing the notation “rent, 127 Kings Highway, for July, 1930.” He at that time gave these two checks to plaintiffs president who accepted same and attempted to collect them at the hank, where payment was refused. Cn July 22, 1930, this suit was filed and the property of defendant, located in the premises, was provisionally seized. It is clear that the past due rent at that time was only $200, covering the period from May 26, 1930, to July 26, 1930.

Plaintiff contends that it is entitled to the amount of rent to become due for the remainder of the term of said lease, 'basing its contention upon the following clause in the lease:

“It is further agreed that if the lessee fails to pay any one month’s rent at maturity, all unmatured rent shall become due and exigible at the option of lessor or his assignees, if the lessee fails to liquidate the amount delinquent within ten days after written notice.”

Defendant has not raised the question of plaintiff’s failure to give written notice. However, the suit of plaintiff is based upon this written contract of lease and, in order to recover, must prove that it has complied with that contract. The very clause upon which it bases its claim for unmatured rent provides that it must give written notice demanding payment of past due rent, and only in case defendant fails to comply within ten days thereafter is the unmatured rent due and exigible. The proof fails to disclose that the written notice was given and is fatal to plaintiff’s recovery of the unmatured rent.

In the alternative, defendant contends that the contract of lease was terminated by plaintiff (lessor) in failing to maintain it (lessee) in peaceable possession and that plaintiff evicted it from the premises. The writ of provisional seizure was issued on the day the suit was filed, July 22, 1930, and on that afternoon the deputy sheriff, in the presence of the president of plaintiff company, executed the writ by personal service upon the president of defendant company and took the goods that had been removed from plaintiff’s premises and returned them to it. The president of plaintiff company demanded of the president of the defendant company the keys to the leased premises, one of which defendant’s president gave to him, informing him that the drayman had the other. Plaintiff’s president, after returning the goods that had been removed to the leased premises, either locked or had the deputy sheriff lock the door, and, for the reason that one other key was still out, he purchased a new lock and put it on the door and locked it. The keys were,turned over to the deputy sheriff. The next morning, the key in the drayman’s possession was also turned over tq the sheriff, who kept all the keys. The premises were used to store the seized goods, either by order of plaintiff’s president or with his full knowledge and consent, he being present at the time.

The building and contents remained so until August 8, 1930, at which time, by agreement of plaintiff and defendant, defendant furnished bond for $1,500 for the release of the property seized, with full reservation of all rights of the parties. Defendant at that time secured the keys from the sheriff and removed the merchandise, returning the keys to the sheriff where they have remained, so far as the record discloses.

The morning after the seizure, defendant secured $200, which he paid to plaintiff and received the two checks he had given on July 17th, on which payment had been refused. On the same day of the seizure, defendant addressed a letter to plaintiff, which, was received the following day and which reads as follows:

“7/22/30.
“Pirkl© & Williams, Inc.,
“710% Cotton St.,
“Shreveport, La.
“Gentlemen:—
“By your order the Sheriff of Caddo Parish, La., has locked up building 127 East Kings Highway now leased by us. Therefore we cannot sublet this building.
“We reguest that you have the Sheriff release this building to us at once so we can place a tenant in same.
“Yours very truly,”
“Shreveport Jitney • Jungle Co., Inc.
“By Joseph C. McCarty, President.”

No answer was made to said letter. Plaintiff’s president testified that he complied with the reguest by instruction to the sheriff, but did not know what the sheriff did. The instructions he gave are shown by his reply to the following guestions:

“Q. Instructed him to take the stuff out of the store or what did you tell him to do with it?
“A. I don’t recall just what the instructions were, but my impression now is that they wanted to secure us and remove the property and we reguested that that be done.”

It is plain to see that he did not instruct the sheriff to return the keys to defendant nor made any effort to restore defendant to peaceable possession of the premises, if that would have prevented the lease from being terminated. Chryssoverges v. General Cigar Co., 163 La. 364, 111 So. 787.

Article 2692 of the Revised Civil Code fixes the duty a lessor owes a lessee in the following language:

“The lessor is bound from the very nature of the contract, and without any clause to that effect:
“1. To deliver the thing leased to the lessee.
“2. To maintain the thing in a condition such as to serve for the use for which it is hired.
“3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.”

Failure of the lessor to comply with this duty terminates the lease and he is subject to any damages caused the lessee thereby.

When plaintiff took the keys from defendant and locked it out of the leased premises it clearly violated the duty it owed its lessee and the lease was at an end. Henry Rose Merc. & Mfg. Co. v. Stearns, 154 La. 946, 98 So. 429; Pelletier v. Sutter et al., 10 La. App. 662, 121 So. 364; Wood v. Monteleone, 118 La. 1005, 43 So. 657; Viterbo v. J. Friedlander et al., 120 U. S. 707, 7 S. Ct. 962, 30 L. Ed. 776; Hitt v. Herndon, 166 La. 497, 117 So. 568.

The lessor’s privilege only covered the property located in the premises and does not extend to the right of occupancy. The writ in this case covered all the property on which plaintiff had a privilege and did not include .the right of occupancy. Henry Rose Merc. & Mfg. Co. v. Stearns, supra; Bruner Merc. Co. v. Rodgin, 130 La. 358, 57 So. 1004.

It was the duty of plaintiff to instruct the sheriff to remove the goods from the building and not to lock the building and keep the keys, 'and when the president of the plaintiff company locked the building himself, as he testified, he did that which is not justified in law and his act was illegal. He illegally evicted the lessee and terminated the lease. Therefore, it cannot recover for the rent that had not matured at that time.

Plaintiff contends that defendant had abandoned the building at that time and so removed all goods therefrom and, for that reason, he was justified in taking possession of it. There is nq merit in that contention. If defendant was liable for the rent for the future term of said contract, it was entitled to possession and control of the premises, in so far as it did not violate any conditions of the lease contract. It had the right of occupancy of said premises and could actually occupy it or keep it vacant as he saw fit. Pelletier v. Sutter et al., supra.

Plaintiff had the right in law to terminate the lease for failure to pay rent, but could not exercise that right and also claim rent for future months.

The judgment of the lower court is incorrect and will have to be amended and, in amending the judgment, it will be necessary to redraft it. The lease contract calls for 8 per cent interest on all past due rent and 10 per cent attorney’s fees, if suit was filed. However, plaintiff only sued for and prayed for legal interest and does not ask for attorney’s fees.

It is therefore ordered, adjudged and decreed that the plaintiff, Pirkle & Williams, Inc., do have and recover judgment against defendant, Shreveport Jitney Jungle, Incorporated, in the full sum of $200, with interest at the rate of 5 per cent per annum on $100, from May 26, 1930, and on $100 from June 26, 1930, until paid, less a credit of $200 paid on July 23, 1930; that the writ of provisional seizure sued out herein be maintained and plaintiff’s lessor’s lien and privilege on all the property seized thereunder be recognized and enforced; that said property be sold according to law and that plaintiff be paid out of the proceeds of the sale thereof by preference and priority over all other persons, the amount of its claim, principal, interest and costs; the cost of appeal to be paid by plaintiff.


author: STEPHENS, J. McGREGOR, J.

text:
    No. 4222
    Second Circuit
    DICKENS v. SINGER SEWING MACHINE CO., INC.
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Argued before DREW, McGREGOR and STEPHENS, JJ.
    A. B. Guthrie, of Monroe, and Allen Barksdale, of Ruston, attorneys for plaintiff, appellee.
    Matthew C. Redmond, of Monroe, attorney for defendant, appellant.
   STEPHENS, J.

On June 17, 1927, the plaintiff, Sarah Davis. Dickens, purchased a sewing machine from the defendant, the Singer Sewing Machine Company, Inc., for the price of $92; said amount being credited at the time of the sale with $15, of which $5 was paid in cash and $10 was an allowance on an old machine owned by the plaintiff and delivered to the defendant. Thereafter, from time to time, the plaintiff made payments to .the defendant aggregating $86, which left a balance due on the purchase price in April, 1930, of $11. At that time the machine was in the home of Ada Lewis, who was holding it for rent due by the plaintiff in the sum of $12; the plaintiff being temporarily absent. Upon learning of these facts, the defendant, through its agents, informed Ada Lewis that the machine had not been paid for and therefore could not be held for her rent, but that they would pay her $5 thereon if she would permit them to take the machine, as it would cost that much to seize it. She agreed to this and the agents paid her the $5 and took possession of the 'machine.

Upon plaintiff learning of these facts, she requested the return of her machine, but was informed, according to her testimony, that it had been sold; and that .the amount she had paid on it had been lost to her.

On April 16, 1931, the plaintiff instituted this suit, alleging that she was a seamstress, and that due to her being unlawfully deprived of the possession and ownership of her machine, ■ she had suffered damages in the sum of $400, for loss of earnings for 40 weeks at $10 per week; $350, for the invasion and violation of her constitutional rights; and $81, which she had paid on the purchase price of the machine. She prayed for judgment for said amounts.

The defendant filed an answer in which it set up that it did not sell, but leased, the machine to plaintiff; and that contrary to the contract of lease, the plaintiff brought the machine from Crew Lake, in Richland parish, La., .to Ouachita parish, La., where she abandoned it in the home of Ada Lewis; that it bought the rent claim of Ada Lewis, and having become subrogated to her rights and interest therein, removed the machine to its storeroom, where it still remained.

In the alternative, the defendant reconvened for the sum of $14, the alleged balance due it on the machine; and for the $5 paid to Ada Lewis on the rent.

On the day of trial, the defendant filed an exception of no cause or right of action, which was overruled by the court.

The trial resulted in a judgment ordering the defendant to return the machine to the plaintiff, and awarding her $50, as damages, less the amount of $11, which was held to be .the balance due on the purchase price.

The defendant appealed and the plaintiff answered the appeal, praying for judgment in the amount sued for.

The exception of no cause or right of action is founded on the proposition that the allegation in the petition that plaintiff was. formerly the wife of George Dickens “but is now living separate and apart from him,” is an insufficient statement of plaintiff’s marital status, and that as there is no allegation in .the petition of a legal separation, if a cause of action existed it was in the husband, the head of the community, and not the plaintiff.

The exception, while designated an exception of no cause or right of action, is. in fact one of want of capacity to sue and stand in judgment; and came too late, as it was filed after issue joined. It should have been filed in limine litis, and was correctly overruled. Code of Practice, art. 333; Campbell v. N. O. City R. R. Co., 104 La. 183, 28 So. 985; Gualden v. K. C. S. Ry. Co., 106 La. 409, 30 So. 889.

The contract relating to the machine was one of sale, which vested the title thereto in plaintiff immediately' upon its consummation. It is labeled a lease in large printed letters, and is written in the terms of a lease, but is clearly the usual form of conditional sale, with retention of title in the vendor, which the courts of this state have repeatedly construed as an unconditional sale.

The receipt given to plaintiff at the time the contract was executed, reads:

“Received from Sarah Dickens Fifteen dollars on account of written Contract No. Sale.”
And on the reverse side of that receipt is the following:
Price of machine._______$92.00
O. M. ____________________________ 10.00
82
Pd___________________________________ 5
Bal ________________________________$77 at $3.00 per month.

This receipt must be considered in determining the intent of the parties to the contract, and, when considered, leaves but little to the imagination. It was clearly the intent of the parties to transfer the ownership of the machine.

The Supreme Court in Grapico Bottling Works v. Liquid Carbonic Co., 163 La. 1057, 113 So. 454, 456, said:

“Hence, where the instrument, although written in the form of a lease, clearly shows, that i.t was the intention of the parties to effect the transfer of the ownership of the property for a fixed price in money, denominated by them as rental or hire, the transaction will be deemed a sale and not a lease. State ex rel. Bulkley v. Whited & Wheless, 104 La. 125, 28 So. 922; Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193.”

And again in Byrd v. Cooper, 166 La. 402, 117 So. 441, 442:

“An alleged lease, in which at the end of the term the lessee is to become the owner of the thing leased, in consideration of the rent to be paid, is in fact a sale translative of the property from its very inception.”

The contention of the defendant that the plaintiff abandoned the machine, and that it therefore had the right to .treat it as abandoned property, in which it had an interest, is without support by the facts and circumstances in the case.

What constitutes an “abandonment” as. relates to property has been defined many times by the courts. We quote from 1 Words and Phrases, Third Series, p. 2, the following:

“Abandonment consists of the actual relinquishment of property, accompanied by an intent to part with it permanently. Shepard v. Alden, 201 N. W. 537, 539 (202 N. W. 71), 161 Minn. 135, 39 A. L. R. 1094.
“An ‘abandonment’ is the relinquishment of a right, the giving up of something to which the owner is. entitled, and must be made by the owner without being pressed by any duty, necessity, or utility to himself, but simply because he no longer desires to possess it; the giving up of a thing absolutely without reference to any particular person or purpose. Moore v. Sherman, 159 P. 966, 967, 52 Mont. 542.
“The characteristic element of abandonment is. the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person, and becomes the subject of appropriation by the first taker; it being in that respect distinguished from all other modes by which ownership may be divested. Commonwealth v. Koontz, 101 A. 863, 258 Pa. 64.”

With reference to the possession of the machine, Ada Lewis, witness for the defendant, testified that it, and a Victrola, were left with her by the plaintiff to secure an indebtedness of $16 for rent. She quoted the plaintiff as follows:

“She told me I am going to leave. Says my machine. I will leave my machine and victrola here to secure you for my rout.”

After leaving these articles for security, ■the plaintiff paid $4 on the rent, which reduced the sum to $12, which was the amount due at the time the defendant paid $5. to Ada Lewis and secured possession of the machine.

Certainly no element of abandonment is suggested by these facts; nor can it be reasonably assumed that the plaintiff would abandon a $92 sewing machine, and a Victrola. She was merely making a legitimate use of her property to secure her debt.

The agents of the defendant were fully aware of the facts and conditions which existed at the time they received possession of the machine from Ada Lewis, as shown by their testimony. The possession thus obtained, without due process of law, and without the knowledge or consent of the plaintiff, was an invasion and violation of her constitutional rights, and the defendant should be held liable for such damages as resulted therefrom.

Satisfactory proof that damages were sustained in excess of the amount awarded by the trial judge does not appear in the record.

We are of the opinion that the judgment appealed from does substantial justice between the parties, and it is therefore affirmed.

McGREGOR, J.

(dissenting). On June 17, 1927, defendant delivered to the plaintiff at Crew Lake, La., a sewing machine. In connection with the delivery of the machine, an instrument of writing was executed and signed by the plaintiff and also by the agent of the defendant handling the contract. This instrument purports on its face to be a lease contract, but there is neither expiration date nor rate of rental stipulated. At the time of the execution of the instrument and the delivery of the machine, the plaintiff delivered to the defendant’s agent an old machine valued at $10 and $5 in cash, for which two items there was delivered to the plaintiff by defendant’s agent a receipt for $15. On the face of the receipt it is stated that the $15 is received on account of contract of sale. On the back of the receipt the defendant’s agent made the following notation:

Price of machine____$92.00
Old machine______________ 10.00
$82.00
Paid ____________________________ 5.00
Balance --------------------$77.00 at $3.00 per month.

Between the date of the contract, June 17, 1927, and October 26, 1929, the plaintiff paid to the defendant an additional sum of $66 in fairly regular monthly installments, thus making a total of $81 paid by her on her $92 contract.

As was stated, the machine was delivered to plaintiff at Crew Lake, but it was subsequently moved to the city of Monroe when the plaintiff moved to that city. While she was living in Monroe several different places were her homes and she took the machine with her each time she moved. In the month of February, 1930, she moved to Darnell in West Carroll parish and left the machine in Monroe with a woman named Ada Lewis, from whom she had been renting a room and to whom she owed the sum of $16 for rent. On or about April 21, 1930, the defendant, through its agent, paid to Ada Lewis .the sum of $5 to be applied upon the plaintiff’s past-due rent and received from her plaintiff’s machine which she was holding as security for the rent due.

Plaintiff returned to the city of Monroe during the month of June, 1930, and about a week after her return she learned that her machine had been removed from Ada Lewis’ house to the defendant’s warehouse. Negotiations for the return of the machine were entered into, but for' some reason she never gained possession thereof. On April 16, 1931, this suit was filed against the defendant, not for the possession of the machine, but for damages for the wrongful detention thereof by the defendant. Her demand for damages is as follows:

For loss of earning power_________________ $400.00
For humiliation and embarrassment as aforesaid and for the invasion and violation of her constitutional rights_______________________________ 350.00
For the amount which petitioner had paid to said defendant to apply on the purchase price of said sewing machine______________________________— 81.00
Total.................................................$831.00

The defendant filed an exception of no cause or right of action, which was overruled. It then answered and denied all the allegations of the plaintiff’s petition, and in addition thereto alleged:

(1) That the contract under which the plaintiff received the machine was a lease and not a sale.

(2) That plaintiff had abandoned the machine in the home of Ada Lewis, who was. holding it to secure the payment of rent due • to her.

(3) That defendant paid to the said Ada Lewis the sum of $5 and removed the machine to its storeroom for safe-keeping and protection of its rights.

(4) That it had offered to renew its lease contract if plaintiff so desired, but that she refused to accept the proposition and instead thereof demanded a large amount of damages which it refused to pay.

(5) In the alternative, it alleged that, if the contract should be held to be a sale and not a lease, there was a balance of $14 due on the purchase price, plus $5 paid for rent due Ada Lewis by plaintiff.

Defendant prayed that the suit be dismissed, and in the alternative, in case the original transaction be held a sale, that there be judgment in his favor for $14 balance due on the purchase price, and for $5 paid for rent due by plaintiff to Ada Lewis, and that defendant’s privilege (vendor’s and lessor’s) be recognized and •maintained.

On trial in the lower court there was Judgment in favor of the plaintiff ordering the return of the machine and for $50 damages, less a credit of $11, balance due on the machine. The defendant appealed and the plaintiff answered the appeal asking that the judgment be amended in accordance with her original demand as set forth in her petitipn.

OPINION

The contract under which the machine was delivered to the plaintiff in the first instance was clearly a sale and not a lease. Even though the words used refer to a lease and not a sale, the instrument itself provides neither expiration date nor rate of rental. But the first receipt issued stipulates that the price of the machine is $92, that $15 was paid at the time of the sale, and that the balance was payable at the rate of $3 per month. Clearly, these monthly installments were payments to be credited on the purchase price and not on a rent account.

Plaintiff’s demand for damages is based on her allegation that defendant entered her premises without legal right and took possession of the machine and removed it without her knowledge or consent. She alleged that she was a seamstress by trade and that because of the removal of the machine she had been deprived of her means of earning a living. It is not shown by the evidence that plaintiff ever earned anything by the use of the machine. During the time she was living in Monroe she did not make a living with it or anything else. She left there in February, 1930, because of her failure to earn a living, and did not return until some time in June of the same year. During the period of her absence she made no provision for the payment of the balance due on the machine, but left it with a woman as security for rent. Her allegation that defendant entered her premises without any legal right is not supported by the testimony, for as a matter of fact she had no premises to be entered. She had abandoned the machine and left it in the possession of Ada Lewis, the woman to whom she was indebted for rent. Ada Lewis’ possession of the machine was legal and with the knowledge and consent of plaintiff. If Ada Lewis was unable or unwilling to keep the said machine in her possession, she had a perfect right to deliver it to defendant, provided none of the plaintiff’s rights of ownership were violated. Plaintiff could assert her rights equally as well with the machine in defendant’s storeroom as she could while it was at Ada Lewis’ house. No right of action -for damages could arise by simple transfer of possession from Ada Lewis to the defendant. Furthermore, defendant had a vendor’s lien upon the machine and had a real interest in protecting and preserving it from loss or deterioration. When it found it abandoned in another woman’s home subject to the payment of rent, it had a perfect right to take possession of it by paying this woman any sum of money which was due her and which she was willing .to accept, provided, of course, that it should take perfect care of it. It cannot be denied that the machine was safer in defendant’s hands than it was in Ada Lewis’ home.

The last payment that the plaintiff made on the machine was on October 26, 1929. She abandoned it and moved to Darnell in the month of February, 1930, and never returned to Monroe until some time in June, 1930. During that time defendant was naturally anxious about the balance due to it, but was unable to collect anything. Its agent went to see Ada Lewis several times, and she told him that she had heard from the plaintiff and that she had promised to send some money both for her and for defendant. Finally, on April 21, 1930, defendant’s agent paid Ada Lewis $5 on her rent claim which she held against the machine and took it to its storeroom. No rights were violated in so doing. Plaintiff was just as much the owner of the machine as she ever was. No disposition was made of it other than to store it for safe-keeping.

Plaintiff testifies that when she learned that defendant had her machine she went to its office in Monroe and offered to pay the balance due and demanded the return of the machine, but that defendant refused to accept the money or to return the machine. There is no testimony on this point except plaintiff’s, and, in view of all the circumstances of the case, her testimony alone is not sufficient to warrant a judgment against the defendant. As soon as the matter was brought to the attention of the manager in charge of this office, Mr. T. A. Arrington, before the suit was filed he offered and was willing to deliver the machine back to the plaintiff provided she would pay the balance due on the account. He stated further that at that time he agreed to waive 'the repayment of the $5 that had been paid to Ada Lewis on rent due by plaintiff. This was a fair and equitable proposition, but appears to have been rejected in the hope of securing judgment for damages.

In his brief counsel for the plaintiff, appellee, cites and relies upon Act No. 62, Extra Sess. of 1877. That statute has no application in this case. It refers particularly ,to entering premises of person to whom property has been sold with the object of removing said property under the assumption or pretense that the buyer had by agreement given the right of entry and removal. No such contention exists here. Defendant did not enter the premises of plaintiff, for she had no interest in or control over the premises where she left the machine; that was the property of Ada Lewis. Defendant found the machine on which it had a vendor’s lien in the possession of Ada Lewis, being held by her subject to her lessor’s lien. Under those circumstances defendant had a perfect right to bargain with Ada Lewis by paying her rent claim against the machine and taking possession of the same for safe-keeping, particularly so since plaintiff had apparently abandoned it for weeks or months and had gone to live in a distant parish. If this act applies to this case, then defendant and its agent were subject to prosecution criminally for what they did, as the act is a criminal one and provided only for criminal prosecution and stipulates merely that the act shall not deprive the injured party of a civil action for whatever damages he may have suffered. The case of Luthy v. Werlein, 163 La. 752, 112 So. 709, is cited. There is no comparison between the two cases. In that case the seller entered the home of plaintiff during his absence and removed a piano on which there was a balance due. The defendant had no semblance of right to the possession of the piano and to declare forfeited all payments made. In that case defendant went so far as to compel the plaintiff’s minor daughter to sign a document relinquishing, in her father’s name, all right, interest, and equity that he might own in the piano. Nothing like that was done in this case. Defendant did not enter the premises of plaintiff. No rights of plaintiff in the machine were changed, jeopardized, or forfeited. The possession of the machine was delivered to the defendant by one who had a right to it and in a way in which she had a right to do. There was no invasion or violation of constitutional rights. Counsel also cites the case of Van Wren v. Flynn, 34 La. Ann. 1158. That was. an outrageous ease. Plaintiff had bought from defendant a set of furniture and for the balance of the purchase price had executed and delivered to the defendant certain promissory notes maturing on consecutive dates. In discussing the case the court said:

“Shortly before the maturity of the first note, on account of the illness of his wife, plaintiff, under medical advice, took her to Tangipahoa Parish, on the Jackson Railroad. On leaving, he sent a messenger to defendant, informing him of the cause of his departure, and stating that upon his return, he would settle his bill; to which the defendant made no objection. Owing to continued ill-health of his wife and other sickness in his family, his absence was. prolonged until nearly a month after the maturity of the last note.
“In the meantime, the notes had all matured, and defendant had several times sent h'is collector to plaintiff’s house without finding him; but it does, not appear that he made any other effort to communicate with him or to notify him of his intention to retake the furniture, if not paid.
“On the 27th of September, defendant went to plaintiff’s house with a wagon and several men; entered the same, which was then occupied by plaintiff’s mother, sister, and sister-in-law; informed these ladies that he had come to take the furniture, and disregarding their statement that Wren’s return was expected and their request that he should wait until his. return, he caused the contents of the furniture to be taken out, and removed and carried away the same.
“That same night defendant (should be plaintiff) returned with his invalid wife and children, and found their sleeping apartments denuded of furniture, so that they were compelled, in order to find accommodation, to send off some members of his family to other quarters.
“It is in evidence that plaintiff had provid; ed himself with means to pay for the furniture and had returned with that purpose, according to the assurance which he had conveyed to defendant when he left the city, and to which the latter had not objected.
“No one appreciating the jealous care with which our law guards the sacredness of every man’s house and his lawful possession of property against invasion or disturbance, otherwise than by proceedings taken under the sanction and through the agency of the public justice, can question that unless removed from its general principles by the effect of the agreement set up in defense, the acts which we have detailed constituted a gross outrage upon the rights and feelings of plaintiff, as a citizen and .a man, for which courts of justice must either grant redress or sanction the personal exaction of satisfaction by violence.”

Even by the widest stretch of imagination, it cannot be said that any such condition exists in the present case. The jury in the cited case awarded damages in the sum of $750 and the award was upheld by the Supreme Court on appeal. In the case of Jenks v. Howe Sewing Machine Co., 34 La. Ann. 1241, suit was brought for damages based on this same Act No. 62, Extra Sess., of 1877, and in refusing to grant damages .to the plaintiff, the court said that it is very plain that the act was not intended to inflict penalty or liability in damages except for trespassing and forcibly carrying away property against the will and protest of the transferee. No such condition existed in the case under consideration, and there can be no penalty inflicted or damages awarded.

For these reasons I most respectfully dissent from the conclusion reached in •the majority opinion affirming the judgment of the lower court, awarding the plaintiff damages in the sum of $50. Undoubtedly plaintiff is entitled to judgment ordering the return of her machine and that is sufficient to put the costs of the case on the defendant. In my opinion, the payment of these costs is all that defendant should be forced to pay for the possible wrongful detention of the machine in question. No actual damages, were proved in my opinion, so that the assessing of $50 damages against the defendant is in the nature of punitive damages and is unjust and clearly unauthorized under the law. The delivery of .the machine back to the plaintiff should be conditioned upon the payment by her of the sum of $11, balance due on it, and the refunding of the $5 rent that defendant paid for her in order ,to get possession of the machine.