text:
    No. 798
    First Circuit
    WARE v. ENGINEERING CONST. CO.
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    E. L. Stewart,.of De Ridder, attorney for plaintiff, appellant.
    . Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff was employed by the defendant company as a laborer on a bridge job on the Evangeline Highway in the parish of Beauregard. He alleges that on March 16, 1930, while engaged in his work, he was ordered by the foreman to wade into fresh concrete that had been placed on the floor of the bridge they were working on, and to dip and pour same into forms that were used to make the rail or curb of the bridge. As a result of his standing in the fresh concrete, he avers that his feet became injured in a way that the skin was blistered and irritated in such manner that since that day he has been unable to do work of a reasonable character. His. demand is for compensation for total, permanent disability for the full period of four hundred weeks.

The defendant admits the employment and the injury, but denies that there is any disability, especially averring that the plaintiff was only temporarily disabled for a period of three and two-thirds weeks for which he was fully paid all compensation that was due him.

From a judgment in the lower court rejecting his demand, the plaintiff has appealed.

The weight of the testimony of the physicians, who examined plaintiff before and on -the day of the trial, is to the effect that his condition shows a form of dermatitis which causes an irritation on the inner surface of both feet, near the ankle. Dr. R. G. Holcombe calls it a skin 'esion, which he says is confined to the skin itself, with no damages to the inner structure. Dr. J. D. Tuteru finds some form of skin disease which may be what he refers to as mycosis, or it may be -an eczema. However, he seems to be positive that, the wounds that had been produced by the lime burns at the time of the injury have healed long ago, and judging from the scar tissue that was formed, he asserts that these burns were of a mild nature. He classes them as not more than secondary burns. In this he is corroborated by most of the doctors who examined the plaintiff. Both Drs. Holcombe and Tuten are firm in their opinion that there is no causal connection between the plaintiff’s condition at the time they testified and the injury he had received in March, 1930, and that he has no disability from the condition they find.

Dr. S. O. Turner is. the physician to whom the plaintiff was sent by the employer at the time of the injury. He says how he treated him for lime burns in the latter part of March or the beginning of April and discharged him as cured and ready for duty on April 16, 1931. At the request of the indemnity company which carried the defendant’s liability insurance, he again examined the: plaintiff in the. month of July following and found him suffering from nothing that would justify a report on. He does not believe that lime burns produce any physical deficiency. On examining the plaintiff again on the day of the trial, he finds what he calls a discoloration of the skin, which is not an infection. Any one, he says, may have hardening of the skin from an old injury. He is even more confirmed than Drs. Holcombe and Tuten in his belief that the plaintiff is not suffering any disability.

Dr. J. D. Frazer, who examined plaintiff a week before the trial, found that he had a mild infection. He says it is dermatitis. He considered the injury caused by . the lime as a second degree burn Which appears to be completely healed. He is of the opinion' that the condition he found on examination had no connection with lime burns.

Dr. T. R. Sartor, whom the plaintiff consulted about August 1, 1930, testifying as a witness for the plaintiff, says that when he first examined him, he found the skin on the feet broken, and that condition, of course, would make the patient subject to skin infection more so than if his skin were in healthy condition. If the inflammatory condition had existed continuously from the date of the lime burn, he would think there is some connection between the injury and 'the existing condition, but he admits dermatitis' can be acquired independent of a burn. When asked the direct question whether he is willing to give it as. his opinion that the dermatitis had any relation to the lime burns the plaintiff received in the month of March, he answers: “No, I wouldn’t give it as a positive opinion.” Moreover, he does not seem to think that plaintiff, in his present conditibn, has much' disability, if any.

Dr. H. R. Officer, another witness for the plaintiff, is more set in his idea concerning the cause of plaintiff’s condition. The history given him by the plaintiff was what he based his opinion on, and in the absence of any other, he would say that the lime burns on his feet were the direct cause of his present trouble.

. The plaintiff, of course, testified that his feet have been continuously in the same condition since the injury. Aware, no doubt, of the' opinion of the doctors to the effect that some forms of dermatitis might be contracted by exposing the bare feet to fungus growth of some kind that may be found in' grass; or in the dirt around a barn yard, etc., he persisted in asserting that he had not gone barefooted since he was a boy, and certainly not within the last ten years, and yet his father, who followed him on the witness stand, contradicted him in this and said that he himself had seen him barefooted within the last two years at least. He remarks in a characteristic manner: “Us country folks we go barefooted in the summer. We see one another’s feet.” Friends of his testified that they had seen his feet in a blistered and swollen condition, but their testimony is of little value in arriving at the cause of the condition they observed.

Considering that the plaintiff received only a secondary burn, in which the inner structure of the skin was not impaired and that the wound has long since healed, and considering further that the cicatricial tissue which has formed and taken the place of the old skin is as strong and as impervious to infection as was the original skin, and having in mind also the fact, as appears from the record, that lime destroys rather than nutures, micro-organisms which generally cause infections, it is more reasonable to assume that the dermatitis plaintiff is suffering from was produced by contact of the skin with some foreign fungi, and that it has no relation to .the lime burns which he suffered. At any rate, we conclude, as did the learned district judge, that the present disability be experiences, if any, is very slight, and by reason of the uncertainty of its positive cause, he is not entitled to recover.


source: Caselaw Access Project

author: LeBLANC, J.

license: Public Domain

text:
    No. 869
    First Circuit
    KENNER v. LARRABEE
    (October 7, 1931. Opinion and Decree.)

      Hiddleston Kenner, of Lacombe, attorney for plaintiff, appellant.
    Harvey E. Ellis, of Covington, and P. M. Milner, of New Orleans, attorneys, for defendant, appellee.
   LeBLANC, J.

Plaintiff seeks to recover of the defendant the sum of $300, which amount, he alleges in his petition, he had delivered to him as part of the purchase price of two lots of ground located in the town of Slidell, La. The defendant is a real estate broker or agent, through whom the plaintiff had, on September 10, 1928, executed a written offer which was to remain open until September 17, 1928, to purchase the property therein described which belonged to one Homer G. Fritchie. On September 12, 1928, Fritchie accepted the offer through the defendant, binding himself to pay the latter a commission of $150 at the passing of the act of sale. The purchase price was to be $3,000, of which sum 10 per cent, or $300, was to be deposited on acceptance of the offer, on account of the purchase price. The plaintiff avers in his petition that, by mutual agreement and consent between himself and Fritchie, the contract to purchase the two lots of ground was canceled, and abrogated, and he is entitled to a return of the $300 which he had delivered to the defendant under its terms.

The defendant annexes to his answer the original contract between him and the plaintiff, and relies for his defense on the following clause which is contained in plaintiff’s offer:

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

Averring that the plaintiff failed to comply with the terms of the agreement under its terms, and was released from his obligation thereunder at his own request, on condition that he pay the commission stipulated, defendant contends that he has the right to offset against the claim made upon him for the $300, the amount of the commission, $150, and the further sum of $50 for attorney’s fees, and court costs. Then, assuming the position of a plaintiff in reeonvention, he prays for judgment in these two amounts against the plaintiff, with costs of this suit.

The lower court found that the plaintiff did not comply with the terms of the contract, and, that he requested the defendant to relieve him from his obligation to purchase the property. It found also that the defendant agreed to release him on the condition that he would pay the agent, defendant herein, the commission due, and for which the agent had performed services under the contract. It also allowed the $50 claimed as attorney’s fees, and in effect permitted the defendant to offset the full amount of $200 against the $300 being demanded by the plaintiff, as it rendered a judgment in favor of the latter for the sum of $100, and otherwise rejected his demand. Defendant was cast with the costs of this suit, as the court was of the opinion that there had been no legal tender made of the $100. which he admitted he owed plaintiff. From this judgment, the plaintiff has appealed, and the defendant answers, asking that the judgment be amended so as to. have his reconventional demand recognized in the form of a judgment with interest, and that the plaintiff be condemned to pay all costs, as there had been a legal tender made to plaintiff of the sum of $150, which he had refused.

That the district judge correctly decided the facts in the case becomes apparent when we read the first sentence in the brief of plaintiff, who is his own counsel, that there is no dispute regarding the facts in the case, and that the questions submitted are those of law.

His contentions are two-fold: First, that defendant cannot plead in compensation or as an offset the two amounts he claims against the $300 demanded in the petition, because this latter amount which was delivered to the defendant was a deposit, and under article 2210 of the Civil Code a demand of restitution for a deposit presents, one of the exceptions to the rule that compensation takes place between debtors, whatever be the causes of either of the debts. Second, that the defendant cannot plead his demand in reconvention because it is not “necessarily connected with and incidental to’’ the main demand as required under the provisions of article 375 of the Code of Practice.

We do not believe that the sum of $300 which was turned over by the plaintiff to the defendant constituted a deposit within the meaning of that term as used in the Civil Code. Article 2926 defines a deposit as “an act by which a person receives the property of another, binding himself to preserve it and return it in kind.” Referring back to the" contract for the purchase of the property, we find that the $300 was the 10 per cent of the amount of the purchase price which the plaintiff obligated himself to put up if the offer was accepted, and was intended to be applied as such. It never was contemplated that it was to be returned to the plaintiff, unless good and merchantable title could not be made to him of the property. There was never any question but that such title could be given, and, for aught the record shows can still be obtained by him. The contract itself stipulated that the amount was. deposited with the defendant broker as 10 per cent “on account of the purchase price” of the property; the presumption being that the contract would be executed and the money turned over to the vendor. At plaintiff’s special request, however, the contract was abrogated with the express' condition that he would pay the defendant’s commission, which would otherwise have been paid by the vendor. It is observed, moreover, from the further provisions of the Civil Code on the subject of deposit, that it is essentially gratuitous.

“If the person, with whom the deposit is made receive a compensation, it is no longer a deposit, but a hiring.” Article 2929.

There can be no dispute here but that the defendant was to receive a commission. That was provided for in the contract as. the compensation for his services. They were, therefore, not gratuitous, and, under the terms of the article quoted, the money turned over to hiin by the plaintiff cannot be treated as a deposit. If it was not a deposit, necessarily it follows that plaintiff’s contention that defendant cannot plead his debt in compensation because it was one must fall.

The conclusion we have reached on, this, the first point raised by the plaintiff, makes it unnecessary for us, to consider the second, which is to the effect that defendant cannot maintain his claim as one in reconvention because it is not necessarily connected with the main demand. Nor do we think it necessary for us to consider the reconventional demand from the standpoint as presented in defendant’s answer to the appeal. The effect of a judgment in defendant’s favor in reconvention would be the same as that produced by the judgment of the district court, unless it were to grant him interest thereon. But, even were we disposed to allow interest, we could not give it to him, as he has failed to pray for same. Nor do we believe that he has shown any such tender of the amount he acknowledges he owed plaintiff as to relieve him from the costs of this proceeding.

Plaintiff, in his brief, discusses the question of prescription, but, as we find no pleas of any kind presented here or in the lower court, we cannot consider it.

We think that the judgment of the lower court correctly disposed of, the whole case, and it is therefore affirmed.


author: MOUTON, J.

text:
    No. 862
    First Circuit
    GREEN v. FREDERICK ET AL.
    (October 7, 1931. Opinion and Decree.)

      See, also, 13 La. App. 560, 127 So. 132.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for plaintiff, appellee.
    Morgan & Simmons, of. Covington, attorneys for defendants, appellants.
   MOUTON, J.

Judgment was rendered in favor of .plaintiff against defendant by Judge Prentiss Carter, December 1, 1930, in chambers, giving defendant the 'right to appeal devolutively or suspensively on furnishing bond. There was no agreement of record between counsel in the case or the litigants authorizing Judge Carter to render and sign this final judgment in chambers.

Act 94 of 1898, p. 117, requires district judges to render their judgments within thirty days from the time the eases are submitted to them. It is provided in section 2 of that act that the judge may forward his decree to the clerk of the court where the case was. tried when the judge is holding court in another parish or in case there is a vacation of said court.

There is nothing in the record or in the judgment to indicate that it was, rendered under the circumstances above stated when the judge is permitted to send his decree •to the clerk. It therefore appears that even under the provisions, of that statute the court had no power to render the judgment in chambers.

Under article 543, C. P., all judgments j must be read in open court. It is obvious | that this judgment was not read in compliance with the sacramental requirements, of that article. Article' 543, C. P., was amended by Act 267 of 1916, p. 554, which permits district judges to render, read, and sign judgments in open court in any parish in their district to be forwarded to the clerk of the court where the case originated. This judgment was rendered in chambers without any indication even- as to the parish in which it was rendered. Evidently, it was not read, rendered, or. signed in open court, as required by Act 267 of 1916. As there was no agreement between counsel or the litigants authorizing the rendition of the judgment in chambers, it had no legal effect, and is a nullity. State ex rel. Illinois. Central R. R. Co. v. Judges of Court of Appeals, 48 La. Ann. 905, 19 So. 932.

The rendering of a judgment in chambers without authorization, the court in the above-cited case assimilates it to a judgment rendered in vacation or out of term time which the court held void in Culver v. Leovy, 21 La. Ann. 306; Hernandez v. James, 23 La. Ann. 483; State ex rel. Dixon v. Judge of Fifth District Court, 26 La. Ann. 119; Succession of Bougere, 29 La. Ann. 37§; and Laurent v. Beelman, 30 La. Ann. 363; cited in State ex rel. Illinois Cent. R. Co. v. Judges of Court of Appeals, 48 La. Ann. 905, 19 So. 932.

Counsel for plaintiff and appellant refers to James v. St. Charles Hotel Co., 145 La. 1004, 83 So. 222; Hanchey v. St. Louis, I. M. & S. Ry. Co., 135 La. 352, 65 So. 487, where it is held that no appeal lies from an unsigned judgment, and that the appeal in such a case should be dismissed.

This rule has been generally followed in such instances.

In State ex rel. Illinois Cent, R. Co. v. Judges of Court of Appeals, 48 La. Ann. 905, 19 So. 932, above referred to, the judgment was declared null because rendered in chambers without any authorization by counsel or the parties to the suit. In ruling that it was null, the court in that case, in support of its conclusions, cited the case of Culver, Simonds & Co. v. Leovy et al., 21 La. Ann. 306, where it was held that a judgment rendered out of term time was null. In that case the court in concluding its opinion, said as follows: “The signing of the judgment at the time was a nullity, therefore the judgment is not final. It may yet be legally signed,” and the appeal was dismissed. In dismissing the appeal, the court therefore followed the rule where the judgment is incomplete for the lack of signature and where it is usually said that the appeal is necessarily premature. Nicholls v. Maddox, 52 La. Ann. 496, 26 So. 994.

This reasoning would logically lead to a dismissal of the appeal, that the judgment might be subsequently signed for the protection of the right of appeal which is constitutionally favored.

In this case, however, it appears that Judge Carter’s term of office has expired, and that he has been succeeded on the bench by Judge Ott.

Article 543, C. P., provides that all judgments must be read by the judge in open court. A compliance with that requirement would not cure the defects which are apparent in the judgment appealed from if merely referred to Judge Ott for his signature.

Act 267 of 1916, page 554, in amending that article, says:

“All judgments must be rendered, read and signed by the judge in open court.”

It then provides, if rendered in a parish different from the one in which the ease has originated, that the judge shall have the right “to render, read and sign judgments in open court,” etc. Obviously, the signing of the judgment by Judge Ott, if we dismissed the appeal, would not be a compliance with the “rendering and reading” thereof, as demanded by the statute. Besides, the direction to sign the judgment would be an attempt to impose upon the district judge the mere performance óf a ministerial duty inconsistent with the functions of his office, and with the provisions of the statute which refer, not to the mere signing of a judgment when rendered out of the parish where the case has originated, but to the “rendering and reading” of the judgment, words indicating the expected exercise of the usual functions vested in the judiciary.

The nullity of a judgment can be demanded on appeal when it is apparent on the face of the record. C. P. art. 609.

The nullity is apparent here, and its nullity may be declared on appeal. Riggin v. Merchants’ Bank, 19 La. Ann. 373; Champlin v. Bakewell, 21 La. Ann. 353.

In Riggin v. Merchants’ Bank, 19 La. Ann. 373, supra, where a final judgment was rendered, without a previous default, it was declared a nullity, and the case was remanded for trial.

In this case, we think, the situation warrants the adoption of a similar course, and that the case should be remanded.

It is therefore ordered, adjudged, and decreed that the judgment be annulled and avoided, and that this case be remanded to be proceeded with according to law; appellee to pay the cost of appeal, the other costs to await the decision of the case.


author: MOUTON,- J.

text:
    No. 859
    First Circuit
    THE ITEM CO. v. HOLMES.
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rebearing Refused.)
    (November 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Benj. W. Miller, of Bogalusa, attorney for plaintiff, appellant.
    Rich & Jones, of Bogalusa, attorneys for defendant, appellee.
   MOUTON,- J.

Plaintiff company sold newspapers to defendant in 1928 and 1929.

In article IV of its petition, the following allegation is made:

“That between the 15th day of September, 1928, and the 31st day of May, 1929, your petitioner sold delivered to the said W. L. Holmes certain newspapers, to the amount of three thousand one hundred thirty-eight and 39/100 dollars ($3,138.39), on which sum the said W. L. Holmes has paid to your petitioner the sum of two thousand nine hundred sixty-five and 17/ 100 dollars ($2,965.17), leaving a balance due and payable to your petitioner in the sum of one hundred seventy-three and 22/ 100 dollars ($173.22), as heretofore set forth.”

It is for the recovery of this balance of $173.22 that this suit is brought.

After denying article III of plaintiff’s petition in which it is alleged that defendant was indebted to plaintiff in the sum of $173.22, defendant in answering article IV of the petition, above reproduced, alleges the following in article IV of his answer:

“In answer, to the allegations, of article 4 of plaintiff’s petition respondent admits that during the years 1928 and 1929 he purchased certain newspapers from petitioner but he denies the remaining allegations of this article. Further answering the allegations of article 4 respondent shows that he was. entitled to the following credits:
“Forty-five & 91/100 dollars ($45.91), which represents an overcharge on items in excess of Item-Tribunes during the months of March, April and May, 1929, bill;
“Thirteen & 03/100 dollars ($13.03), which represents a ten per cent (10%) deduction on respondent’s October 31st, 1929, bill;
"Eight dollars ($8.00), which represents a one per cent (1%) deduction on respondent’s November 15th, 1929, bill;
“Thirty-seven & 50/100 dollars ($37.50), which represents the price of a suit of clothes which petitioner ordered for respondent as a bonus for which respondent had to pay;
“Thirty dollars ($30.00) for instructions of the agent who took over the sale and distribution of .papers when respondent discontinued his services;
"Forty dollars ($40.00) which represents a deduction to which respondent is entitled for returned papers during the month of May, 1929;
“Two dollars ($2.00), which represents the price of two insurance policies which were ordered out for two customers but which were not taken out and accordingly returned to the company;
“Five & 16/100 dollars. ($5.16), which represents the price of sample copies of the daily and Sunday Item for four weeks during May for which respondent was charged;
“Respondent further shows that the total amount of these items for which he is entitled to credit is one hundred and ninety-five and 23/100 dollars ($195.23), and he has therefore overpaid his account in the sum of twenty-two and 01/100 dollars ($22.01).”

In article V of his answer defendant makes a claim against plaintiff in the words following:

"Now, assuming the position of plaintiff in reconvention your respondent shows that the total amount of petitioner’s claim is one hundred and seventy-three & 22/100 • dollars ($173.22), that respondent is entitled to credits on the said account amounting to the sum of one hundred and ninety-five & 23/100 dollars ($195.23) as outlined in article IV of the answer, and that your respondent has, therefore, overpaid his account in the sum of twenty-two & 01/100 dollars ($22.01), for which amount he asks judgment in his favor.”

Plaintiff, in support of its claim, offered in evidence its itemized account, the ‘answer of the defendant, particularly article IV, and rested its case.

In the offer thus made of the answer the words used “particularly article four” did not constitute a Specific restriction to that article, and the answer must therefore be considered in its entirety.

In his brief counsel for plaintiff has cited a large number of authorities to sustain his contention that the plea of compensation or payment admits the debt sued upon. Obviously, if no debt or obligation exists, there is nothing co be compensated or paid. In that contention counsel for plaintiff is unquestionably correct.

The question is as to whether or not defendant filed a plea in compensation, as is contended for by counsel for plaintiff.

In article IV of defendant’s answer, he admits he purchased the newspapers from plaintiff in 1928 and 1929, as is alleged in article IV of plaintiff's petition, but he denies the remaining allegations of article IV of plaintiff’s petition.

The claim so denied is the amount of $173.22 Which plaintiff therein avers is the balance still due by defendant, after crediting defendant with $2,965.17 paid by him on the account.

In article V, on his reconventional demand, defendant alleges that he is. entitled to credits on plaintiff’s account amounting to $195.23, exceeding plaintiff’s claim of $173.22 by $22.01, for which he- is asking judgment in reconvention.

It is nowhere claimed by defendant in his answer that plaintiff is indebted to him in the sum of $173.22 and that the amount so claimed by plaintiff has been compensated, or that plaintiff is indebted to him in the sum of $195.23, which ex-needs, the amount claimed by plaintiff leaving a balance of $22.01 in his favor.

The defense impliedly admits that defendant’s account was properly credited with $2,965.17, as alleged by plaintiff, but urges that defendant’s account is not credited with the sum of $195.23 to which he is justly entitled, leaving a balance in his favor of $22.01.

After denying the claim of $173.22, asserted by plaintiff, defendant does not plead its, extinguishment by compensation for a debt plaintiff owes him, but pleads that if his account had been properly credited with the items set out in his answer, that there would remain no balance against him for the $173.22 demanded by plaintiff, but that on the contrary a balance of $22.01 would be left in his favor if he were correctly credited with the total credits of $195.23 to which he avers he is justly entitled. His defense is that the-balance of $173.22 does not exist as it was counterbalanced or exceeded by the alleged items of credit.

There is nothing inconsistent in this defense with defendant’s specific denial of his indebtedness to plaintiff for the $173.22 claimed as a balance due it. This defense and the special denial constituted two denials. of the existence of such a debt. The defense that plaintiff had failed to credit defendant with the items referred to was not a plea in compensation. The demand in reconvention for the excess of credits Was certainly not a plea in compensation or of payment.

In the case of Pram v. Allen, 3 Mart. (0. S.) 381, plaintiff sued defendant on an account current, claiming a balance due as it is herein claimed.

On the trial the defendant offered to prove that the plaintiff omitted in the account sundry credits in his favor. This, evidence was excluded because defendant had not specially pleaded compensation. The Supreme Court found that in such a case it was doubtful if compensation could be pleaded at all. In such a case, said the court, “both accounts are put afe issue, and any evidence tending to support or contradict the correctness of either ought to be admitted.”

Civil Code, art. 2209 says:

“Compensation takes place only between two debts, having equally for their object a sum of money * * *; and which are equally liquidated and demandable.”

In this case there were no two debts-“equally liquidated’’ and demandable. In such a situation as. this, we believe, as was said in Fram v. Allen, 3 Mart. (O. S.) 381, “any evidence tending to support or contradict the correctness of either ought to be admitted.”

In the case cited the case was remanded to permit defendant to prove the credits which he contended had been omitted in the account.

■ Herein the court admitted the evidence to show the credits asserted by defendant, and, we think, properly.

The next contention of plaintiff is that the averments of the a.ns.wer were too vague to permit the introduction of evidence thereunder. Plaintiff objected to all the evidence offered by defendant to establish his claim to the various items of credit claimed in the answer. The objections were overruled.

The items of credits claimed, we find, are specifically set out, and with sufficient particularity to have apprised plaintiff of the’ various amounts claimed.

Article IV of the answer, above copied, shows that plaintiff was sufficiently put on his guard to meet the claim for these items with contradictory evidence if it had any to produce.

Defendant explained in his testimony how they were incurred, and established with legal certainty that he was entitled •to these credits, with the exception of small items which were disallowed.

The court concluded that after a proper application of the credits there was nothing due by defendant, and nothing by plaintiff on the reconventional demand, and rejected both demands.

We find no error in that*judgment.


text:
    No. 854
    First Circuit
    RECILE v. SOUTHERN UNITED ICE CO.
    (October 7, 1931. Opinion and Decree.)

      B. & M. Purser, of Amite, attorneys for plaintiff, appellant.
    Leon Ford, Jr., of Hammond, attorney for defendant, appellee,
   LeBLANC, J.

This case was disposed of on an exception of no cause of action in the lower court. From a judgment dismissing his suit, the plaintiff has appealed.

The petition discloses that on the 18th day of November, 1929, he and his wife, with their infant child, were passengers on a bus belonging to the Pickwick Greyhound Lines, Inc., going from Hammond to Independence. On a detour road out of Hammond, made necessary because of some construction work going on on the main highway, a truck of the Southern United ice Company, defendant herein, ran into the path of the bus they were in, causing a wreck in which they were both injured. The wife brought a separate suit in her own name against the defendant which was decided in the same manner as the present one and is also on appeal before us. 136 So. 771.

The» petition in each case recites that while the transportation company was under contract to give them safe carriage to their destination and" owed them for their damage and loss of time, because they were without funds at the time, they gave the Pickwick Greyhound Lines, Inc., a release upon receiving a payment from them of $200, which amount, however, did not in any way satisfy the full damage they had sustained, and which they are entitled to recover from the Southern United Ice Company, as. it was the negligence and carelessness' of their truck driver that was the proximate cause of the accident. The following article in each petition then charges that, co-tort-feasors being bound in solido, the plaintiffs are entitled to be reimbursed from each the full amount of damages suffered until they have been paid in full. This last allegation, viewed in the light of the preceding one referring to the release in favor of the Pickwick Greyhound Lines; Inc., and of article 2203. of the Revised Civil Code, formed the basis of the exception of no cause of action. The article of the Code mentioned reads as follows:

“The remission .or conventional discharge in favor of one of the .co-debtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
"In the latter case, he can not claim' the debt without making a deduction of the part of him ‘to whom he has made the remission.”

In Orr & H. Lindsley v. Hamilton, 36 La. Ann. 790, it was held that the provisions. of the article quoted apply to obligations e£ delicto as well as to contractual obligations. See álso Rudison v. Glover, 131 La. 381, 59 So. 817.

That the pleader in preparing the petition in this case had the article of the Code in mind would appear from the fact that he was careful in making the proper deduction from his claim of the amount he had received from the one of the ioinf tort-feasors to whom he had given a release; but he, strange to say, failed to aver that he had reserved his right against the defendant herein, the other joint tortfeasor who he alleges is liable in solido. The omission of such allegation clearly subjected the petition to a judgment of dismissal on the exception of no cause of action. For aught the petition disclosed, there was no reservation whatever against the defendant, and unless there had been, clearly, under the article of the Code, it stood discharged the same as its co-debtor, Pickwick Greyhound Lines, Inc.

After the rendition of the judgment by the lower court, plaintiff moved for a new trial, averring in his motion that the court was in error in construing the action to be one purely and simply in damages for tort only, as. he contends the action against the transportation company was one arising out of its contract of carriage as well as in tort. He also complains in his motion that the court did not give consideration to the receipt given by him to the Pickwick Greyhound Lines, Inc., wherein that company was released from liability and which contains the express reservation of his rights against the Southern United Ice Company.

We do not find any merit in the contention that the action is one arising out of the contract of carriage as well as in damages. The defendant who might have been held on a contract has been discharged from liability and judgment is not prayed for against it. Moreover, the action is essentially one sounding in damages for a tort, made so by the express, judicial declaration of the plaintiff himself, who is bound by the allegations of his petition.

Regarding the other complaint plaintiff makes, it would be difficult to conceive how the court could have given consideration to the contents of a document which it did not have before it. In its consideration of the exception of no cause of action, the court had to be guided by the declarations in the petition, and in it there was no mention of the reservation which it was necessary for plaintiff to have made in order to hold this defendant liable after the other debtor had been released.

The granting of, a new trial was a matter of discretion which we think the court exercised correctly by refusing the motion. Its judgment was certainly not contrary to the law, and could not be1 to the evidence, , as the exception was tried on the face of the petition; and plaintiff’s supplying a copy of the receipt which contained the reservation did not constitute newly discovered evidence which was. the other ground on which a new trial could have been granted. The receipt which bears the plaintiff’s own signature is dated March 14, 1930, which is five months prior to the filing of the suit. Besides, the motion could not be considered as one based on newly discovered evidence, as we observe it does not contain the affidavit required by article 561 of the Code of Practice in such cases.

Counsel for plaintiff in their brief suggest that our sustaining of the judgment of the lower court will simply necessitate the filing of a new suit. That, of course, is a matter which the court deplores as much as counsel and the litigants themselves, as the policy of the law is to avoid two suits where one can serve the purpose. But we see ourselves without any alternative here but to affirm the judgment ef the district court. Besides, the filing of another suit by this plaintiff will' impose no greater hardship on him, as we note he brings this proceeding in forma pauperis under Which he is exempted from the payment of costs.


text:
    No. 853
    First Circuit
    RECILE v. SOUTHERN UNITED ICE CO.
    (October 7, 1931. Opinion and Decree.)

      (No Syllabus)

    B. & M. Purser, of Amite, attorneys for plaintiff, appellant.
    Leon Eord, Jr., of Hammond, attorney for defendant, appellee.
   LeBLANC, J.

This is a companion suit to that of George Recile v. Southern United Ice Company, 17 La. App. 611, 136 So. 769,i in which an opinion was this day handed down and judgment rendered by the court. In the opinion, reference is made to this suit.

For the same reasons as are assigned therein, the judgment of the lower court in this case is also affirmed.


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    No. 846
    First Circuit
    LAVITTE v. JAMES DEGRESTINO
    (October 7, 1931. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   MOUTON, J.

At his death, Peter Lavitte left two lots of. ground in the town of Independence, éach having a front on Railroad avenue of twenty-five (25) feet by one hundred and ten (110) feet deep; also a strip of land 15x50 feet west of the lots- in the rear. There were two brick stores on the lots separated by a common wall.

His surviving widow, Mrs. Josephine Demisa Lavitte; and Joseph P. Lavitte, son of the deceased, inherited that property. In June, 1928, they made a partition of the property by notarial deed in about equal portions with the exception of the strip of 15x50 feet in the rear of the lots which was included in the portion assigned under the act of partition to Mrs. Josephine Demisa Lavitte, plaintiff herein. It is shown that the portion of the property deeded in the partition to Joseph P. Lavitte did not touch the strip of 15x50, above referred to, as there was a strip of land of about thirteen (13) feet intervening between his portion and the 15x50 strip included in the portion assigned to plaintiff, the thirteen (13) intervening feet being the property of Cason, another party. There is also no evidence in the record to show that Joseph P. Lavitte had any right of way or servitude over this strip belonging to Cason by which he could connect his property therewith.

After the partition was made, plaintiff sold by authentic act to defendant, James Degrestino, the portion she had received by the partition according to the description therein made, and which included the said strip of 15x50 in the rear of her lot.

Plaintiff alleges that when she sold to defendant she told him she was not selling that strip of 15x50, and never intended, nor did she sell this fractional portion in the rear of her property which was erroneously included in the deed by the notary under the description which he had taken from the act of partition, by which the property of her- deceased husband had been divided between herself and her son, Joseph P. Lavitte.

She is therefore suing defendant to have the deed between them recast to exclude therefrom the aforesaid strip of land, 15x50, above referred to.

Judgment was rendered rejecting her demand, from which plaintiff prosecutes this appeal.

Ingonza, a witness for plaintiff, says defendant wanted the strip for chickens and to hang his wife’s clothes. The proof is that it has little value except for such uses, as the above indicates, making it therefore clear, as several witnesses testified, that it would be of value only to owners of land adjoining thereto. The fact is that Joseph Lavitte says he kept a copy of the act of partition and gave one to his mother, the plaintiff, an Italian who speaks no English, and says he did not explain the deed to her. It is fair to infer from such a statement that, as he gave no explanation of the deed to his mother, the strip in question was of little importance in the transaction, and naturally went to plaintiff, as it was in the rear of the “lot assigned her, and to whom alone it would have any value.

The testimony of Mrs. Lavitte is, however, that she was under the impression that the strip in question belonged to her and her son in common, and that she intended to save this property for her son. She says at the time of the sale to defendant she was then under that impression and never intended that it should be included in the sale, and did not know it had been conveyed under the terms of the deed.

The proof is that the notary had Demisa, a brother of plaintiff, who writes and speaks English and Italian, to explain the sale to her in her own language before the contract was signed.

. In giving her rebuttal evidence, plaintiff says her brother, Mr. Demisa, at the time asked her what she intended to sell to defendant, and that she said “she agreed to sell the house”; also, that when, prior to the execution of the sale, she agreed to sell the. property, her brother “explained she was selling the house.”

Plaintiff had occupied the store prior to her husband’s death and knew all about this strip in the rear portion of the building, and no doubt her brother did not ignore that fact. If according to her testimony she was selling only the house as understood by her and her brother at the .time of the promise of sale, and when the sale was passed, it is almost impossible to believe that the strip in question would not have been excluded from the sale by her brother who understood English, and who must have been aware of the contents of the deed. It seems to us only fair to say that, if plaintiff was intent on saving the strip for her son, she would have had her brother make due reservation of the strip of land for the protection of. her rights. It seems to us that if plaintiff was only selling the house, xhe reservation to which we have referred would have been made.

It appears that Mr. Cittadino, who owns property adjoining the strip, claimed it, and got into contention with defendant on the subject of its ownership. Plaintiff then asserted her rights of ownership thereto against both of these claimants, and agreed to sell the land to Cittadino if she recovered it in this suit. This is. very probably the incentive that brought on these proceedings, as error in the sale to defendant was about the only plausible way to obtain a recovery of title that could be conveyed to Cittadino. Whether or. not the proof justifies the inference that, such might be the incentive behind this suit, we find, from our analysis of the evidence of plaintiff, hereinabove given, that it is- altogether insufficient to overcome the recitals of the deed under which defendant acquired the land in contest, notwithstanding the evidence of witnesses for plaintiff who say that defendant offered to buy or rent the property, but which is all denied by defendant.

Evidently the court believed defendant, and was in our opinion correct in that conclusion, as his testimony is fully supported by the facts and circumstances of the case to which we have referred in the course of this opinion.


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    No. 863
    First Circuit
    DECKER v. SLIDELL MOTOR SALES CO.
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)

      L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    S. W. Provensal, of Slidell, attorney for defendant, appellant.
   LeBLANC, J.

Plaintiff, James W. Decker, sues the defendant corporation for $186, of which amount he alleges the sum of $30 is a balance due under an arrangement between them to do all the mechanical work in their garage at Slidell, La., on a commission basis, and the remaining sum of $156 he avers is due under a special contract entered into with the defendant through its secretary and treasurer, and at that time its active manager, by the terms of which he was; to receive $3 per week for acting as clerk to care for the front end or office department of the business and stay there at night, when necessary. He avers that this last contract was, at his request, reduced to writing, and to his petition is annexed a document dated April 16, 1929, covering his. employment, both as mechanic and as clerk, signed “Slidell. Motor Sales Co., J. A. Smith, Sec. & Treas.” He avers further that he rendered satisfactory service as mechanic and clerk from April 16, 1929, to April 16, 1930, and that, while defendant offered to pay him the $30 due him as mechanic, it refuses to pay him the amount due as clerk for caring for the front end of the business as set out in his petition.

The defendant tendered the $30 admittedly due, and later deposited this amount in the registry of the court. The contract under which plaintiff demands the $156 is denied.

The lower court rendered judgment in favor of the plaintiff for the amount of his claim in full, subject, of course, to the credit of the sum of $30 which had been deposited in court, and the defendant has appealed.

The testimony reveals that S. A. Landry and J. A. Smith had been partners in the automobile business in Slidell, and on April 4, 1929, incorporated their business under the name of the defendant company; Mr. Landry’s wife becoming a stockholder to the extent of one share in order to effect the incorporation. All the capital was furnished by Landry, and Smith was to conduct the business, having entire charge of everything, including the hiring of all employees. The business had been operated on the same plan during the existence of the partnership when it was conducted under the style, Slidell Motor: Sales Company. It seems to be conceded .that Smith had full authority to act on his own initiative, and he did not consult the board of directors, during the few months he was connected with the business as a corporation.

As the act of incorporation bears date of April 4, 1929, and the contract produced by the plaintiff is dated April 16, 1929, and as it is fully proven that Smith had authority to act for the corporation, especially in matters concerning the employment of labor and help, it must be presumed that on April 16, 1929, when he signed the agreement to pay plaintiff $3 per week additional, to work in the front end of the garage when'necessary, he was acting for and in behalf of the corporation, which is bound by his agreement.

It does not appear to be disputed that the plaintiff rendered such service as was contemplated under the contract.

Proof was adduced to show that there is nothing on the defendant’s books to indicate a charge for any such service, but we do not see how the defendant’s failure in that respect can affect the rights of the plaintiff who it does not appear in any way ■ had anything to do with the keeping of the books for the company. Counsel for defendant urges the lack of any such entries in the books, as evidence of the suspicious character of the agreement, but it takes more than mere suspicion to set aside a contract which both parties thereto testify as being genuine and honestly entered into. Both the plaintiff and Smith say that it was valid, and that plaintiff was not paid under it, simply because of the poor financial condition of the business.

We are of the opinion, as was the district judge, that the preponderance of the evidence in this case is with the plaintiff, and that he is entitled to recover for the item of $156, being for service rendered during fifty-two weeks at $3 per week.

The judgment of the lower court is affirmed.


author: ELLIOTT, J.

text:
    No. 845
    First Circuit
    HANSFORD v. EVERETT
    (October 7, 1931. Opinion and Decree.)

      Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appéllant.
    M. J. Allen, of Amite, attorney for defendant, appellee.
   ELLIOTT, J.

E. Hansford alleges that he is the owner of a horse mule, described as being dark brown in color, about 16 hands high, with a white nip on the nose, named Jack; that Mrs. J. W. Everett has possession of the mule and refuses to surrender it to him; alleging fear that she would conceal, part with, or dispose of the mule, caused it to be sequestered pending his suit to compel its surrender to him.

Mrs. Everett' for answer denies that plaintiff is the owner of the mule, admits that she refused to surrender the mule to him, and alleges, as her reason for so doing, that the mule belongs to her.

There was judgment in favor of the de- * fendant rejecting plaintiff’s demand as in case of non-suit. The plaintiff has appealed.

The plaintiff is a resident of the city of Topeka, state of Kansas. He is, or rather was, a dealer in mules, and owns and operates a farm in the parish of Tangipahoa. Several years ago he shipped to this parish several carloads of mules for sale here. The mule in question was included in the last shipment, but plaintiff testifies that it was not for sale, but for use on his farm in this parish.

J. W. Everett lived on plaintiff’s farm in this parish during the time these shipments were made, and assisted him in selling mules. The authority of Everett is a matter of dispute between the parties, but the evidence shows to our satisfaction that the plaintiff, Hansford, who resided in the state of Kansas, employed J. W. Everett, defendant’s husband, as. his agent with authority to sell mules, but his authority was limited to the extent that, before hei could sell a mule, if the price was not paid in cash, notes were to be given in payment and H. S. Weigel, president of the Amite Bank & Trust Company, acting for Hans-ford, was to pass on and approve the note or notes, before the sale could be made.

Of course Everett could not sell a mule that Hansford told him not to sell.

The plaintiff testifies that he did not sell the mule in question to Everett and that he did not authorize Everett to sell it to anybody else; that it was his purpose and intention to keep the mule for service on his farm in the parish of Tangipahoa. We are satisfied that Hansford did not sell the mule to Everett and that it was his intention to keep the mule for use on his farm in this parish; but the evidence shows that J. W. Everett, acting as Hansford’s agent and in Hansford’s name and behalf, Hansford being at the time absent in the state of Kansas where he lives, sold and delivered the mule in question to James G. Benton.

The evidence shows that Everett sold this mule to Benton for the price and sum of $125. According to the testimony of Benton, which we accept as the ground for our opinion, he paid half of the price in cash at the time of the sale and for the balance of the price, which was $62.50, he gave his promissory note payable to Hans-ford, which note was deposited in the Amite Bank & Trust Company as the property of Hansford.

After using the mule for a year, Benton entered into an agreement with Everett, under which the note which he owed as the balance due on the purchase price of the mule was returned to Benton and the mule was returned to Everett. As for the $62.50 paid at the time of the purchase, it should have been and presumably was deposited in the Amite Bank & Trust Company to the credit of Hansford, and, if so, it was transmitted by the bank to Hansford, but the identity of the deposit was not clearly shown.

Benton, in returning the mule and getting back his note, relinquished all claim on account of the payment made in cash at the time of the purchase of the mule, and which in our opinion had been transmitted to Hansford.

Benton lost the note and could not produce it on the trial, but we see no reason for doubting his testimony on the subject.

After getting back «the mule in the way stated, J. W. Everett departed this life. Therefore we have not the benefit of his testimony on the subject. He was in possession of the mule at the time of his death; the defendant is his widow in community and has no greater rights nor other rights in and to the mule than her husband had at the time of his death.

We do not regard as showing any title in J. W. Everett the fact that the $62.50 paid in cash was transmitted to Hans-ford. It belonged to him. Neither do we regard as showing any title in J. W. Everett the fact that, when Benton got back the note, it may have been stamped paid. The important question is: Did Benton sell the mule to J. W. Everett, or did he surrender the mule back to him in the same capacity as he had acted, when selling it to him? The matter is not free of doubt, but, upon the whole, we feel that it is a proper conclusion that Benton became the valid owner of the mule by purchase from Everett, and the question is: Who became the owner in the re-transfer, Everett or Hansford? Defendant sought to show on the trial that, when her husband got back the mule from Benton, he became the owner thereof, but the evidence does not support her contention. The evidence indicates that, in receiving back the mule, Everett acted in the same capacity in which he had acted in selling it. The sale which had been made was rescinded, and in the rescission the note which belonged to Hansford and which had formed half the purchase price was returned to Benton. It is said by Benton to have been marked paid; if so, and such was no doubt the fact, then we cannot see it otherwise than as having been by Benton paid to Hansford by the restoration of the mule, on account of which it had been given. Such a transaction could not, without the consent of Hansford, and whose consent was not obtained, transfer the ownership of the mule to Everett. The result would be to restore it to Hansford, and that is what took place. The mule must therefore be surrendered to Hansford.

. The judgment appealed from is in our opinion contrary to the law and the evidence. For these reasons the judgment appealed from is annulled, avoided, and set aside, and it is now decreed that the mule in question belongs to the plaintiff, Hans-ford. The sequestration issued herein is maintained, and it is ordered that the mule in question be surrendered to E. Hansford as prayed for in his petition, and that he be quieted in his right thereto. It is further ordered that the defendant and appellee pay the cost in both courts.


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    No. 842
    First Circuit
    PONCHATOULA HOMESTEAD ASSN. v. KENNON (INGE, Intervener and Third Opponent)
    (October 7, 1931. Opinion and Decree.)
    Burns & Pierson, of Ponehatoula, attorneys for plaintiff, appellant.
    Ellis, Ellis & -Ellis, of Amite, attorneys for intervener, appellee.
   ELLIOTT, J.

Ponehatoula Homestead Association, judgment creditor of Edwin B. Kennon in the sum of $14,897.50 with interest and attorney’s fees thereon, issued execution against Kennon and caused to be seized and advertised for sale a lot of automobile parts, equipment, an old motor-truck, and some other things used in repairing and handling automobiles, as the property of said Kennon.

Z. M. P. Inge, alleging himself to be the owner of the things seized and in possession of the same by purchase from Ken-non, enjoined the sale.

The court maintained the injunction recognizing Inge as owner.

Ponehatoula Homestead Association appealed.

The evidence shows that Kennon had been agent for and dealer in automobiles, Ford make, at Kentwood for many years, and had during the same time operated a garage and shop for the repair of automobiles, keeping on hand and in stock various parts of Ford automobiles for sale. The parts were for the old model make of Ford cars; some of the parts, such as fenders, had never been used, but all belonged to the old model now obsolete and out of demand, except when needed now and then in repairing the old make of Ford cars.

Mr. Kennon had been forced out of business by financial reverses.

His garage had been seized and sold, hurt these old parts and things had been left on his hands. He testifies-that it did not pay to rent a place in Kentwood to keep the things. That Mr. Inge, a dealer in automobile parts, came along and offered' him $42.50 for the lot. That he accepted the offer, received the amount, and delivered the things to Mr. Inge, whose place of business, is at Baton Rouge.

Mr. Inge testifies that he bought the things from Mr. Kennon for $42.50; that Mr. Kennon delivered' them to him. That they were such things that he did not need in his place of business in Baton Rouge, and that it did not pay to rent a place to store them; that it was expensive to move them to Baton Rouge, and that he decided that it was to his advantage to sell them as opportunity offered in the locality of Kentwood. He therefore entered into an agreement with E. B. Kennon, Jr., son of E. B. Kennon, defendant, who was engaged in operating a filling station some five or six miles east of Kentwood, to take the things into his place of business and sell them upon a commission of 10 per cent.

Ponchatouia Homestead Association claims in its brief that the parts and things seized are worth several hundred dollars, and that at the time of the seizure no delivery had taken place and the things still belonged to Kennon. That the truck was still operated under the license which had been obtained by Kennon.

There was considerable questioning concerning the value of the things. One witness called by Homestead Association testifies that the articles are worth several hundred dollars, but the testimony as a whole has convinced us that this is a mistake. The sincerity of the witness who testified that such was the fact is. not questioned, but .we are satisfied that $42.50 was a fair price for the articles in question. The one-ton truck is in our opinion practically unsalable, although it may be worth something to some people. Among the things is an old hoist; it cost more than a hundred dollars, at, the time it was bought, six or seven years ago, but we are satisfied that it is now of very little value, that there is no demand for it, but it may be sold for a few dollars. The fenders, although never used and as good as new, are practically of -no value because the cars for which they were made are now of an obsolete make, and it is. only now and then that these parts are desired for the purpose of repairing or replacing worn out parts of some car of the old model Ford make. Most of the other things are old parts and things of very little, if any, value.

We are satisfied that the goods were delivered by Mr. Kennon to Mr. Inge following the sale and previous to the seizure. Facts and circumstances urged by the seizing creditor as showing that no delivery had taken place would, under other circumstances, be looked on differently; but to our mind these things are of such small value, and the demand for- them so' uncertain and infrequent, that the arrangement entered into between Mr. Inge and the son of E. B. Kennon, a boy about sixteen years old, looking to the sale of these things at ^_a filling station out in the' country operated by the boy, does not indicate any covert understanding between Inge and Kennon under which Kennon remains the owner.

The judgment of the lower court in favor of Inge is in our opinion correct.

Judgment affirmed. Ponchatouia Homestead Association to pay the cost in both courts.


text:
    No. 839
    First Circuit
    ILLINOIS CENTRAL R. R. CO. v. NATIONAL SAND & GRAVEL CO., INC.
    (October 7, 1931. Opinion and Decree.)
    Carroll Buck, of Amite, attorney for plaintiff, appellee.
    S. S. Reid, of Amite, attorney for defendant, appellant.
   LeBLANC, J.

This suit originally involved two claims by the" plaintiff railroad company against the defendant, one being for freight charges on a certain locomotive and tender from Amite, La., to McComb, Miss., on November 8, 1929, and .back over the same route on November 13, 1929, and the other to cover an undercharge on dredge pipe from Middleton, Ohio, to Amite, La., on January 18, 1928. ' The freight charges on the locomotive, both ways amounted to $139.06 and the undercharge 'claim to $121.76. The "record discloses that this latter amount was paid on the .very day that this suit was filed, but before .service had been made. It is therefore, no longer an issue in the case.

A solution of the controversy over the freight charge on the locomotive will depend on the construction that is to be placed on the agreement under which it was sold by the plaintiff to the defendant, as the defense to this action is based entirely on the ground that, at the time it was sold, plaintiff agreed to overhaul and recondition it before delivery, but that this had not been done, and, as it was necessary to send it back to McComb for this purpose, the freight charges should be borne by the plaintiff.

The defendant, under protest, so it alleges, paid the plaintiff $215, which was the estimate of the repairs that were to be made to the engine, of which amount plaintiff refunded the sum of $22.09, and it claimed in reeonvention the difference or the sum of $192.91.

The lower court gave judgment in favor of the plaintiff for the freight charges claimed, and rejected the defendant’s reconventional demand, whereupon the latter took this appeal.

' The defendant is engaged in the sand and gravel business, operating near Amite, La. In October, 1928, it became necessary for them to rent an engine, as theirs was out of commission. Their manager, Mr. Whitman, rented a locomotive from the plaintiff company at a rental price, as we understand him to say, of $47 per day. At the time, he made this arrangement with Mr. McLaurin, superintendent of the Louisiana division of the plaintiff railroad comp¿ny, he asked him to secure a sale price for the engine. Plaintiff had several other secondhand engines for sale which McLaurin considered would be a better buy for defendant, at the same price, and further negotiations led to the closing of a deal for the locomotive involved in this suit for the price of $3,500 cash. The exact date of the sale is not shown, but it-appears reasonably certain that it was either the last day of November or the very first days of December, 1928, that Mr. Whitman and his wife, accompanied by Mr. Evans, their engineer and his wife, drove to Monticello, Miss., with Mr. Mc-Laurin to look at the locomotive. Mr. Whitman, who saw his company faced with a rather large bill for the rental of •the other engine, conceived the idea of getting that amount remitted if he could, and accordingly asked McLaurin if he would not agree to a remission of the amount then due. McLaurin, whose authority was limited to the sale of the engine at -the price of $3,500 told him that he would have to get instructions from his superiors before he could give him' an answer. Several days afterwards he received authority to close the deal on the terms requested by Whitman, and the sale was completed; plaintiff contending that it was with the understanding that the engine was sold as it stood and defendant that the agreement further contemplated an entire overhauling and reconditioning of the locomotive.

At this time it may be pertinent to remark that the price of a new engine of this type would be as much as $20,000, or $25,000. Defendant had used the rented engine from October to the last days of December. At the price charged, it is apparent that quite a large rental bill had already accrued. When it is considered •that that amount, whatever it was, was remitted in the final closing of the sale of the other engine, it would seem that they had obtained q,uite a good bargain, even though the engine they bought was secondhand.

The defendant charges the long delay in •the delivery of the locomotive as an attempt on the part of the plaintiff to lull them,into a belief that the engine was being overhauled, as indeed they contend it had bound itself to do. But the explanation of Mr. McLaurin to the effect that all this time he was waiting for instructions to waive the rent on the other engine, as requested by Mr. Whitman, as that was a matter beyond his authority, strikes us as being most plausible. During that time, the engine was brought over from Monticello to MeComb, where it underwent the usual inspection and the initials of the defendant company substituted for those of plaintiff, as had been 'agreed upon.

Shortly after the delivery of the locomotive to the defendant, some trouble developed, and McLaurin, to satisfy Whitman, so he says, sent a man to Amite to make the necessary repairs. These, as it appears to us, were minor adjustments to the bearings, made necessary most probably because of different track conditions. About a month after other repairs became necessary, and, as there were better facilities for handling the job at the yard of the Natalbany Lumber Company at Natalbany, La., the engine was taken there and the repair work done. It seemed to have been a job that required only a day’s work, so. these could not have been extensive repairs. Plaintiff seems never to have been informed of these repairs, and it appears certain that they never were called on to pay the expenses incurred.

After these last repairs which were made at Natalbany, the engine was put into regular service and used for practically ten months, when it began to lose power and could not do the required work properly. Defendant communicated with McLaurin about sending the engine to McComb for attention and repair. The latter, because of the press of work in their shops, agreed to undertake the job only on condition that defendant give them their certified check for $215, the amount to cover the estimate of the work to be done. The check was sent and the work was completed for $192.-91, which was $22.10 less than the estimated price, and this latter amount was refunded to the defendant.

These last repairs, made at McComb in November, 1929, amounted to considerably more than minor adjustments, but, if we are to believe the testimony of the general foreman of plaintiff railroad company who made or supervised them, they were but those made necessary from the natural wear and tear that accrues from almost a year’s service. Had these been the repairs. and reconditioning of the engine which the defendant contends plaintiff had obligated itself for, it is difficult to believe •that defendant would have paid for them, in advance, without a protest of some sort. Their explanation that they made the payment under compulsion, because without the engine they could not operate, is weakened by the testimony of Mr. Whitman himself, who, in an effort to disprove the charge that the repairs were the usual ones made necessary for normal wear, says that their plant had not been operating every day. “We haven’t been running every day, by any means,” he insists on saying.

It is rather significant that defendant never made any demand whatever on the plaintiff for the return of the $192.91 which they had paid for the repair work done in November, 1929, and that they further paid the claim of $121.76 for an undercharge without protest or calling attention to the fact that plaintiff owed them the. repairs.

All of the circumstances in the case tend to support Mr. McLaurin’s positive denial of the testimony of Mr. and Mrs. Whitman and of Mr. Evans that the engine was to be overhauled and reconditioned before delivery. His letter to Mr. Whitman on November 17, 1928, at the time negotiations were going on for the sale of the engine, indicates that such work never was contemplated, as in it he states that he is. advised that he can let him have the engine for the cash price of $3,500, “in its present condition.” Moreover, the invoice sent to defendant from plaintiff’s Chicago office specifies a sale of the engine “as is,” meaning, of course, in the condition it was. when sold. This invoice, Mr. Whitman states, was not received until after the delivery of the engine. He says further that, had it been given to him before or at the time of delivery, he would not have accepted the locomotive. The fact remains, however, that he did receive the invoice, and must have noticed the stipulation it contained, and yet he kept the engine without a word of protest or complaint.

The district judge seems to have carefully weighed all the facts, and circumstances in the case, and his judgment in favor of the plaintiff for the freight charges claimed and rejecting the defendant’s reconventional demand appears to us to be correct, and' it is therefore affirmed.


text:
    No. 805
    First Circuit
    STEWART v. PARISH OF JEFFERSON DAVIS
    (October 7, 1931. Opinion and Decree.)
    Jno. B. Fournet, of Jennings, attorney for plaintiff.
    McCoy, Moss & King, of Lake Charles, attorneys for defendant, appellee.
    Ogden & Cannon, of Crowley, attorneys for intervener, appellant.
   LeBLANC, J.

This suit was instituted by Edville Stewart, who claimed of the defendant compensation for the death of his son Johnny, who was killed while he was in its employ, and who, he alleges, contributed before his death to his support.

Shortly after .the filing of the petition, Mae Stewart, born Thibodaux, wife of Ed-ville Stewart, the plaintiff, but living separate and apart from him, intervened, and, averring that she was the mother of Johnny Stewart, and that she had been for several years partially actually dependent upon him for her own support as well as for that of her three minor children, and that plaintiff was never either wholly or partially actually dependent on him, claimed for herself the compensation that was being demanded.

The defense put at issue the legitimacy of the deceased boy, and there was a denial of dependency and consequent liability.

When the case was called for trial, plaintiff, through his counsel, announced in open court that he abandoned his claim, and the trial proceeded with the demand as presented in the petition of intervention.

Proof having been made that the intervener was the mother of the decedent, and that his father was Edville Stewart, but that they had not been married until, more than five years after his birth, her counsel next attempted to prove that she had acknowledged him by producing and offering in evidence a baptismal certificate issued by the rector of St. Michael’s Catholic Church of Crowley, La., which reads as follows:

"On this, the 17 day of Jan. 1913, I the undersigned Catholic Priest, have baptized John, born on the 21 day of Nov. 1912. Child of Edmond Stewart and Marie Thibodaux. Sponsors Jaques Montousser and Armena Dugas.
“(Signed) A. F. Isenberg, Rector”

.There was also offered as evidence another certificate issued by Reverend George Moller, later rector of the same church, and bearing its seal, certifying the same facts as the foregoing, and evidently prepared from the same record.

Objection was duly made to the introduction in evidence of these certificates, on the grounds: (1) That there was no allegation in the intervener’s, petition that the child had ever been acknowledged; (2) that the documents were not proof of themselves, and were not admissible in evidence; (3) even if admissible and given consideration, they did not establish acknowledgment of the deceased as required by law, and were therefore irrelevant.

The trial judge sustained the objection, stating, however, that, were he not so convinced of the validity and conclusiveness of the third ground on which it was based, he would, in view of the power vested in the court in the trial of compensation suits, have permitted counsel for intervener to amend his pleading so as to overcome the first ground of objection and then let him produce testimony to have the documents identified and made admissible. He did permit counsel to attach the two certificates as part of a bill of exception to his ruling, and they are now part of the record as it appears before us for review.

1 On the question of the effect, as proof of acknowledgment of an illegitimate child, that is produced by a certificate of the character of those that are before us, we find ourselves in thorough accord with the views of the learned district judge, who holds that they in no manner comply with the requirements of article 203 of the Revised Civil Code regarding acknowledgment. That article reads:

“The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth ok baptism of such child.”

It is essential that the acknowledgment be made by a declaration which must be made in the manner and form prescribed. It may be made in the registering of the birth or baptism of the child, and, when not so made, it must be executed before a notary public in the presence of two witnesses. In either case, it must be made by the father and mother or either one who is making the acknowledgment.

The certificates offered as evidence of acknowledgment in this case contain only the recitals of the two priests who made tnem, the one especially pertinent being that signed by Reverend A. F. Isenberg, who attests over his signature, as appears on its face, that on January 17, 1913, he baptized a certain child, whose name, as given to him, was John, that he was the child of a certain named man and woman", and that two other persons named therein acted as sponsors. It is not pretended that thé certificate bears any other signature than that of the officiating priest, and the source from which-he derived his information for making it is not given. There is nothing in. it which even remotely may be construed as a declaration by the father or mother of this child which the article of the Code requires in order to constitute an acknowledgment.

We had the same question here presented under consideration in the case of Irene Wells v. White-Grandin Lumber Co., Inc., 13 La. App. 696, 129 So. 171, and therein held that neither a certificate of birth signed by a midwife and filed with the registrar of the state board of health, nor art-alleged ceremony said to be a christening in -the Baptist faith, was sufficient to meet the requirements of article 203, Rev. Civ. Code. As authority, we referred to one of the decisions of the Supreme Court relied on by the district judge in this case, Succession of Lacosst, 142 La. 674, 77 So. 497. We note that he also cites Pigeau v. Duvernay, 4 Mart. (O. S.) 265, and Perkins v. Brownell-Drews Lumber Co., 147 La. 337, 84 So. 894. These as well as several others support his ruling by which he sustained the objection of thei introduction in evidence of the certificates of baptism, which judgment resulted in a judgment in favor of the defendant.

In so far as it rejected the demands of the intervener, which is the only matter before us on this appeal, the judgment of the lower court is affirmed.


text:
    No. 773
    First Circuit
    SENTELL v. ROBERTS
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    Albin Provosty, of New Roads, attorney for plaintiff, appellant.
    Bouanchaud & Kearney, of New Roads, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff sues the defendant to recover of him the sum of $1,000.

He alleges that, through the representations made to him by the defendant who was his personal friend and family physician, and after much solicitation on his part, because of his trust and confidence in him, and also because of 'his assurance that he personally would invest the sum of $10,000, he was finally prevailed upon, on November 24, 1925, to give, him his check for the sum of $1,000, with the understanding that the proceeds ■ were to he invested for him in the reorganization of the Pointe Coupee Trust & Savings Bank which was then in a failing condition. He alleges that on November 27, 1925, the defendant, after having indorsed the check which was payable to his order, cashed it at the Bank of New Roads oh which it was drawn, and received the proceeds therefor in cash. He then alleges that on January 14, 1926, the Pointe Coupee Trust & Savings Bank closed its doors and suspended business, and has never since reopened, nor has it ever been reorganized as represented to him by the defendant. He avers on belief, that the defendant failed to carry out the plan of reorganization as represented to him, and that it ■really was never seriously promoted by him, and that at any rate he has never received from the defendant any bank stock or other consideration for the $1,000 he gave him, nor has he ever rendered any account of what he did with his money, although he has been persistently requested to do so.

The answer of the defendant is to the effect that he was prompted by a civic desire, after having been approached by some of the officials of the failing bank, to avert, if possible, the financial disaster which the closing of the bank would mean to the community, and therefore interested himself in trying to promote a rehabilitation of its finances. With that end in view, he became a stockholder in the bank to the extent of one share, having no interest before save that of a small checking account, became a director, and was from then on actively engaged in the effort being made to save; the insolvent institution. He avers that he put up $3,950 of his money along with the plaintiff’s $1,000, that there were many other contributors besides them, and that all the money so received was to be used in such manner as to take care of the impaired capital stock of the bank, with the understanding that, when a reorganization would be effected, all contributors to this fund would receive stock in the reorganized bank, in proportion to the amount put up by each. All of this was done with the full knowledge of the facts by plaintiff, who he says was a shrewd business man of more than average ability, and he denies that he influenced or persuaded him in any way in making the ■investment. As their plans progressed, he alleges that it was further decided by the board of directors to levy .an assessment ■against the outstanding stock, in addition to the other contributions already made, and that, when this became generally known and a few stockholders refused to pay their assessment, pending the efforts of the board of directors, the depositors began to make heavy withdrawals which they were unable to prevent, and it then became necessary for the board, realizing the futility of further action, to order the closing of the bank. Defendant avers that he was in no way responsible for the failure of the bank or the materialization of the plans made to re-establish it on a sound financial basis, and suffered the loss of the amount personally contributed by himself. He consequently denies that he is indebted in any way to the plaintiff.

The foregoing synopsis, somewhat long because of the length of the pleadings, serves, to bring out the sharp issue of fact which this case presents, as there can be no question in law, that it was the defendant’s duty to use and invest the plaintiff’s $1,000 under the specific terms of the agreement and understanding between them at the time he was intrusted with the money. If that agreement was that the money was to be invested in the reorganization of a new bank and that the plaintiff was to receive stock therein as a consideration, and the defendant violated his trust by turning the money into a fund created to re-establish the depleted finances of a failing bank, it is- elementary that he is liable for the amount thus intrusted to his care. On the other hand, if. the understanding was that the money was to be used in taking care of the impaired capital stock of the bank with the hope of .placing it on a safe financial footing, after which he would receive stock in proportion to the amount he had put in, and the bank afterwards failed through no lack of effort and work on the part of defendant, then of course plaintiff cannot recover.'

The district judge merely held that the plaintiff had not carried the burden of proof which the law imposed on him to show that the agreement was as he contended, and rejected his demand. Prom a judgment dismissing his suit, he has appealed.

The plaintiff, according to the testimony, seems to be a man of more than average intelligence and business ability. Whilst he is not a graduate of that institution, he was a student for four years at the Louisiana State University. He is 39 years old, married, and has a family. He is the almost exclusive owner of an automobile business in New Roads which does, an annual business of approximately $150,000. He was not a stockholder nor was he a depositor in the Pointe Coupee Trust & Savings Bank, but had a line of credit there ranging from $2,000 to $4,000. He testifies that he knew of the weakened condition of that" bank, and, from his business connections and the almost public information concerning its affairs, it is reasonable to assume that he was familiar with the situation then existing.

The defendant, a man 44 years of age, is. a practicing physician in the parish of Pointe Coupee. He is married also and has a family. His testimony shows that he is highly educated and we would judge of no small business acumen. Neither did he have any financial interest in the Pointe Coupee Trust & Savings Bank until November 18, 1925, at which time, actuated, as he says, he was, by civic motives to avoid a bank failure in the community, he became the owner of one share of stock of the par value of $100, but for which he actually paid only $25.

We have depicted the character of these two men to show how difficult it is to accept the word of the one as against that of the other. Necessarily, under such a situation, courts have to" resort to an analysis of the testimony as, a whole and a^ careful consideration of the surrounding circumstances.

The close attention which we have given to the record leads us to a belief that the facts and circumstances favor the plaintiff and consequently to a different conclusion than that reached by the trial judge. .

We have, as our most important consideration, plaintiff’s total lack of interest in the financial condition of the Pointe Coupee Trust & Savings Bank. The mere fact that he received some borrowing accommodation at times was not a sufficient inducement from a business standpoint, as we believe, for him to contribute $1,000 towards maintaining its solvency. The proof is that he had equal accommodations at another bank in New Roads in which he had his checking account. Defendant would have it appear that plaintiff was actuated by the same impulse of civic pride as he was. in trying to avert a bank failure in the community. Plaintiff, however, say's he was not, having no interest whatever in the bank, and besides, had he been prompted by the same noble spirit, as much as he would have cared to assist in the effort being made, it is. hardly likely that he would have incurred the obligation he was forced to by having to borrow the $1,000 he gave to the defendant. The latter, on the other hand, granting his purpose to have heen altruistic, seems to have been nursing the ambition to become an active officer in the new management, if indeed not the president of the bank, and it is not unreasonable to assume that he made representations to those he approached on the proposition of rehabilitation of the hank, which were not as conservative as those that would have been made by one less interested. This is shown by his persistency in trying to prevail upon the plaintiff to join him in his efforts and his statements not only to the plaintiff but to others that he was going to put $10,000 of his own money in the plan he had for the reorganization of the bank.

The defendant contends that the plaintiff was fully aware of the condition of the bank, that he knew at the time there was an assessment being levied against the stockholders to replenish its resources, and that contributions were being sought from other sources, and his check for $1,000 was. voluntarily given in rehabilitating the condition of the bank. But it does not seem that plaintiff understood that his money was to be used in making up the amount levied against the stockholders, and it is shown that his. $1,000 was the only new money with that of the defendant, which was used to bolster up the finances of the bank.

It appears that, for over eighteen months before the failure of the bank, its financial structure was by no means safe, as about that time it had already become necessary for the directors to contribute the sum of $18,000 to help out in the situation. During the month of November, 1925, that amount having been exhausted, it became necessary to find $27,000 more to take care of certain papers which had been charged off by the bank examiner. Taking into account the $18,000 previously contributed and the $27,000 which were required, it developed that .the stockholders were faced with a 75 per cent depletion of the capital of the bank, which had to be made good if the institution was to survive at all. It was then the plan for an assessment of that amount against the outstanding stock was proposed and agreed upon. It was then also that the defendant became interested, with the lofty purpose in mind of sparing the community a bank failure, and purchased a share of stock, was elected a member of the board of directors and became vice-president of the bank. His interest resulted in his obtaining plaintiff’s check for $1,000. This was on November 24, 1925. He cashed the check a day or ■two after he received it and retained the proceeds until December 1st or 2d, on either of which days he turned them over with his $3,950 to the assistant cashier of the bank, without. obtaining any acknowledgment or receipt whatsoever. The assistant cashier then placed the money to the credit of the undivided profits account of the bank, and that is. the last anything seems to be known of it.

In the meantime, while the plans were being worked out, there arose some question as to their legality, and it became necessary .to consult Judge Samuel Laycock in Baton Rouge. The depositors became alarmed and began withdrawing funds from the bank, and the plans, instead of progressing with the success that had been anticipated, seemed to be meeting just the opposite result. Nevertheless, we find the defendant, as late as December 31, 1925, reporting to the plaintiff according to his own testimony, that he had not yet put up his money, nor any of his own. When we consider that" it was only two weeks following this report made by him that the bank closed its doors, and that he necessarily must have had knowledge of the actual condition existing, and when we consider further his failure thereafter- to tell the plaintiff what had become of his money except to say that it was lost, it can hardly be said that the defendant acted with good faith toward the plaintiff. All of this lends weight to the testimony of the plaintiff, who maintains most positively that he turned over his money to the defendant with the understanding between them, that it was going to be used in a plan to reorganize the bank and that he was going to get stock therein after it would have been put on a safei financial footing. He states further that he trusted the defendant not to use his money until he (the defendant) would have put up the $10,000 he promised to invest in the reorganization. Much is said in argument regarding the latter’s failure in that respect. Counsel for plaintiff seems to attach much importance to such failure as a further breach of the agreement under which his client turned over his $1,000, and counsel for defendant passes over it lightly by saying that, had the defendant put up the $10,000, it would not have made any difference, as even that amount would not have prevented the bank’s failure. The defendant’s failure to put up all of the $10,000 plaintiff expected he would can very well be considered as adding weight to the plaintiff’s testimony, but to our minds it is somewhat aside of the real issue in the case, which, is: What did the defendant do with the plaintiff’s $1,000? It was his duty as agent to execute the will of his principal, which was that the money be invested in a reorganization of the bank, and obtain that much stock for it. This he did not do, and he must therefore be held liable. Rev. Civ. Code, arts. 3003, 3010.

“The obligations of an agent, whose authority is limited by instructions, is, to adhere faithfully to those instructions. If he unnecessarily exceed his commission, or risk the effects of his principal without authority, he renders himself responsible to the latter for the consequences of his act. If loss ensue it is no defence that he intended the benefit of his principal.” Ward et al. v. Warfield et al., 3 La. Ann. 468; Cuggy v. Zeller, 132 La. 222, 61 So. 209.

A militating circumstance against the plaintiff is that he let four years go by before bringing' this suit, seemingly on . a stale demand, and this is strongly urged by counsel for defendant as a weakness of the claim. It is true the plaintiff might have been more vigilant, but, when we take into consideration the standing of the two men in the community and their personal and friendly relation in the past, the reason given by the plaintiff, which is to the effect that he thought any fair-minded man (and evidently he considered the defendant such) would have rendered him an accounting of what had become of his money, stands as a plausible explanation of the delay. At any rate, the staleness of the demand of itself is by no means enough to overcome the other facts and circumstances in the case, which in our opinion favor it.

Pon these reasons, it is- ordered that the judgment -of the lower court which rejected plaintiff’s demand and dismissed his suit be now reversed, annulled, and set aside; and it is further ordered that there be judgment in favor of the plaintiff, James. H. Sentell, and against the defendant, Dr. James C. Roberts, in the full and entire sum of $1,000 with legal interest thereon from the 27th day of November, 1925, until paid, and all costs of this proceeding in botli courts.


author: LeKLANC, J.

text:
    No. 840
    First Circuit
    WRIGHT & ANDERSON, INC., v. ANTHON (ALFRED ANTHON, Intervener)
    (October 7, 1931. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    Ellis, Ellis & Ellis, of Amite, attorneys for intervener, appellant.
   LeKLANC, J.

Plaintiff, a judgment creditor of Mrs. Carrie Anthon, had a writ of fieri facias issue against her, under which the sheriff seized and took in his possession, 19 milk cows and one bull. Alfred. Anthon, her son, intervened in the proceeding, and obtained a rule for the issuance of. an injunction to restrain the sale of the property seized oh the ground that it belonged to him. The matter came for trial on the rule for a preliminary injunction and resulted at first in a judgment making the rule absolute and ordering the injunction to issue. On further trial on the merits, however, the lower court rendered judgment decreeing the 19 milk cows to be the property of Mrs. Carrie Anthon and as such, subject to seizure to satisfy the' judgment rendered against her. The judgment further recognized Alfred Anthon as the owner of the bull and ordered it released from, seizure and the preliminary injunction which had been granted was set aside and annulled. The intervener appealed, and as plaintiff has not answered asking for an amendment of the judgment with respect to the ownership of the bull, the only issue now in the case is the claim presented by the intervention of Alfred Anthon concerning the ownership of the cows.

After the death of her husband, the cows became the property of Mrs. Anthon. Her - son Alfred, who with his child came to live with her after his wife’s death, took charge of the herd for his mother and started in the dairy business. It was then that he bought the bull which the court declared was his property. He claims that, his mother sold the cows to him with the understanding that he was to pay for them at the rate of $50 per head out of the profits that were to be made in the operation of the dairy. His counsel contend that in the agreement were embodied all the essential elements of a bona fide sale. There was the object, the price and consent. No actual delivery was necessary, it is argued, as the cows were already in the possession of the vendee, herded together with other cows of his own in his barn. They were his cows and therefore hot subject to the seizure that had been levied against them.

The only direct testimony bearing on the alleged sale of the cows is that of Alfred Anthon and his mother, and whilst it might be said that Alfred is rather positive in his assertion, we find the testimony of Mrs. Anthon, especially regarding the price to be paid for the cattle, so loose and uncertain and at times so evasive, that it casts a serious doubt about the whole transaction. It must be borne in mind that she was one of the parties to the sale, and is trying to uphold it. as b'ona fide and valid. On the trial of the rule, when she is asked the direct question, what did Alfred pay her for the cattle, she answers that she doesn’t think that is anybody’s business and when pressed for further reply says that “it was a settlement of family affairs” which she thought was all right. On being finally directed by the court to answer the question, she says: “He was to pay me considerable” and asked again, “How much did he agree to pay you?” answers: “About fifty dollars a head.” She is not a bit more positive regarding the time when the alleged sale took place, saying at first that it was two years ago, then changing that, when she testified at the trial on the merits, to “some time last spring,” which would have been less than a year before. At the last trial it may be said that she wasn’t any more certain as to the price Alfred agreed to pay her as she again states that it was “about fifty dollars a head.” To further indicate how indefinite her testimony is, we might refer to that part of it regarding the number of cattle said to have been sold. When she is asked another direct question: “How many cattle did you sell Alfred?” she answers: “Fifty-six or — no. Hold on, I don’t know how many it was. It was about, I guess, forty head.” It is rather significant also that on the day the cows were seized, Mrs. Anthon made no protest to the deputy sheriff who was executing th’e writ, and on the contrary, pointed out to him, if we are to believe him at all, twenty head of cattle “as belonging to her.” She denies this, it is true, although she admits referring to them as “our cows, or our cattle, meaning that they belonged to the place, and not to somebody else, the neighbors.”

Under such evidence^ we are of the opinion that the lower court correctly held that there was nq sale of the cows from Mrs. Anthon to her son. Article 2464, Revised Civil Code, prescribes that:

“The price of the sale must be certain, that is to say, fixed and determined by the parties.”

Certainly it cannot be said from this testimony of the purported vendor that the price was certain and that it had been fixed and determined by the parties. For this reason then, if for no other, it would seem that the pretended sale cannot stand.

But there is another consideration which prompts us to regard the sale with further doubt as to its validity. Both parties testify that the price was to be paid after the cows would have made enough profit as dairy cows for their new owner to pay for themselves. A sale under such contingency might be construed as one made with a suspensive condition, which, under the provisions of article 2471 of the Civil Code, “does not transfer the property to the buyer, until the fulfillment of the condition.” Mrs. Anthon’s testimony is to the effect that she had not been paid anything yet on account of the purchase price, from which • it can readily be assumed that the condition had not been fulfilled.

Most probably it was Mrs. Anthon’s intention that her son Alfred would become the owner of the cattle, under an agreement of some sort, the nature of which seems to be revealed in her answer to a question as to how much did he owe her, the reply being: “He owes me what I need from now. until I» die.” Viewed in that light the contract' might be considered in the nature of an onerous or a remunerative donation, which however, would not be valid for want of form, not having been executed by notarial act as required by articles 1536 and 1538, R. C. C., and could not besides affect the rights of the donor’s judgment creditors.

We think the judgment appealed from is correct and it is therefore affirmed.