text:
    No. 8778.
    Orleans Appeal.
    A. FABACHER, Appellant, v. MRS. C. ROUPRICH.
    (April 27, 1925, Opinion and Decree. Bell, J., dissents.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Marriage—Par. 91,' 92, 93.
    In order to recover the price of things sold to a married woman it is necessary to prove that she was a public merchant conducting a business with the permission of her husband.
    2. Louisiana Digest — Marriage—Par. 91, 92, 93.
    Conducting a “dairy” does not constitute a wife a public merchant.
    3. Louisiana Digest — Marriage—Par. 92.
    When the husband is absent the presumption of permission ceases and the burden is upon the plaintiff to prove that the husband authorized his wife expressly or impliedly.
    Appeal from the 28th Judicial District Court, Parish of Jefferson, Hon. H. N. Gautier, Judge.
    This is a suit for the price of cows. There was judgment for defendant rejecting plaintiff’s demand, and he has appealed.
    Judgment affirmed.
    J. E. Fleury, Nat. W. Bond, attorneys for plaintiff and appellant.
    A. T. Higgins, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a suit for the price of cows.

The plaintiff alleged that Mrs. Chris. Rouprich was a married woman, the wife of Chris. Rouprich, and that she was doing business as a “public merchant” conducting a “dairy business”; that at various times between September 15, 1920, and -May -23,' 1921, he sold Mrs. Rouprich cows, calves, a mare and colt, a truck, etc., amounting to $3,032.21; that Mrs. Rouprich- has paid on account $2,220; leaving a balance due of • $832.21, for which he claims Judgment against Mrs. Rouprich.

Prior to the filing of her answer there was a judgment of divorce between the defendant and her husband.

The defendant for answer denied all the allegations of plaintiff’s petition and averred that all the things mentioned in plaintiff’s petition had been sold not to her but to her minor son, Lynn Rouprich.

There was judgment for defendant rejecting plaintiff’s demand, and he has appealed.

The District Judge found that the defendant was not conducting the dairy business; that the business was conducted by her two sons, and that she had not been authorized by her husband to do any business.

It is evident that assuming that the defendant was conducting a dairy the plaintiff also had to prove that such occupation or business constituted her a “public merchant” and that she conducted the business with the express or implied consent of her husband. He has not proved either.

C. C. Article 131 (128). “If the wife of a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and in such case, her husband is bound also, if there exists a community of property between them. She is considered as a public' merchant, if she carries on a separate trade, but< not if she retails only the merchandise belonging to the commerce carried on by her husband.” C. N. 220, 1426.

C. C. 1786 (1779). “The authorization of the husband to the commercial contracts of the wife is presumed by law, if he permits her to trade her own name.”

Assuming that the defendant purchased the cattle sued for, it is admitted that she was not authorized so to do by her husband from whom she has been separated for many years.

The business which it is alleged the defendant was engaged in was selling milk. Did that constitute her a “public merchant” ?

It is 'clear that 'á married woman is without capacity to contract without the assistance of her husband, unless she be a public merchant. Robert H. Thorne vs. Brudget Egan and Husband, 3 Rob. 329; Timoleon Chauviere vs. Mrs. Fliege, 6 La. Ann. 56; Elsie M. Isaacson vs. Philip M. Mentz, 33 La. Ann. 595; Samuel Friedlander vs. Mrs. Elsie Schmalinski, 34 La. Ann. 528.

The business of an aeronaut and giving magical performances is not that of a public servant G. R. Spalding vs. Mr. and Mrs. E. Godard, 15 La. Ann. 277.

In the case of Mrs. Moussier vs. Gustino, 25 La. Ann. 36, the Court said:

“The judge a quo proceeded to render judgment against her (Mrs. Moussier) .on the ground that being shown to be the keeper of a boarding house, and ■ therefore a public merchant, no authorization was necessary either from her husband or the Court. We do not think that Articles 121 and T31 of the Civil Code can be construed to warrant the conclusion that the carrying on of any other business by a married woman than that of merchandise constir tutes her a public merchant.”

The latter clause of Article 131 declares that the wife “is considered as a public merchant if she carries on a separate trade, but not- if she retails only the merchandise belonging to the commerce carried on by her husband”. The “separate trade” here spoken of, we think, refers clearly to the trade in merchandise and not to any other business or pursuit. Daboval vs. Escurix, 8 La. Ann. 96; Henry M. Isaacson vs. Philip H. Mentz, 33 La. Ann. 595; Samuel Friedlander vs. Mrs. Elsie Schmalinski, 34 La. Ann. 528; Overton vs. Gervais, 5 M. (N. S.) 682.

To be a merchant one must be engaged in commerce, in the business of buying and selling or trading in, articles of commerce.

According to the Century Dictionary a merchant is “One who is engaged in the business of buying commercial commodities and selling them again for the sake of profit. One who sells without having bought, as where one sells products of his own labor, is not usually termed a merchant”.

Abbott’s Law Dictionary defines “merchant” as “One who buys and trades m any thing; and as merchandise includes all goods and wares exposed to sale in fairs or markets, so the word merchant formerly extended to all sorts of traders, buyers, and sellers. But every one who buys and sells is not at this day under the denomination of a merchant. Only those who traffic in the way of commerce, by importation or exportation or carry on business by way of emption, vendition, barter, permutation, or exchange and who make it their living to buy and sell, by a continued assiduity or frequent negotiation in the mystery of merchandising are esteemed merchants.”

Buying and selling commercial commodities are essential to constitute a merchant. 5 Words and Phrases vs. “Merchant”; see also same, second series, and 2 Bouvier 155, Joseph Schwartz vs. Thirty-Two Flatboats, 14 La. Ann. 244.

Our Article 131 is a literal translation of the Article 220 of the Code Napoleon: “La femme si elle est marchande publique”, etc.

Larousse defines the word “Marchand” as follows: “Personne qui vend, dont le metier est d’acheter pour revendre”. 3 Laurent, p. 152, S. 116.

“When is the wife a merchant?” We must apply Article 1 of the Code of Commerce: “Merchants are those who deal in acts of commerce and make of it their habitual profession.”

Persons engaged in agriculture or manufactures or constructions or professions are not commercial partners because they are not engaged in commerce. They are not merchants of the products of their industry which they put upon the market. A cotton or sugar planter is not a merchant any more than he who keeps a dairy or a bee hive.

Not only is it necessary that the wife should be a public merchant, but she must exercise that business with the authorization of her husband, because if there is a community between them, the husband is liable in solido, with her. When the husband is present, and has knowledge of her business, his authorization, express or implied, is presumed. But when the husband is absent or ignorant of her business, neither the wife nor the husband is_ liable. 2 Toublier, p. 22, S. 636-637.

There is proof in this case that the husband was absent and did not authorize his wife.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 8832.
    Orleans Appeal.
    JOHN J. EMBERT v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, Appellant.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 96.
    Where a policy, forfeited for non-payment of the premium, provides that before it can be revived, arrears of premiums must be paid and “satisfactory evidence of insurability” must be furnished and that, in any event, “such revival shall not take effect unless at the date thereof the member is living and in sound health”, the failure to furnish such satisfactory evidence and the fact that the insured applying for reinstatement was not in good health, is sufficient to pre-' vent automatic revival of the policy by estoppel upon payment of the arrears of the premiums without action by the insurer "for a period of ten days.
    Appeal from Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit to recover the amount of a life insurance policy.
    Judgment for plaintiff. Defendant appeals.
    Judgment amended and affirmed.
    J. C. Hollingsworth, ■ John O. Streck, E. W. Puneky, attorneys for plaintiff and appellee.
    Sol. Weiss, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit for $500.00, the principal amount of a certain policy of life insurance issued by the fraternal order known as “The Sovereign Camp Woodmen of the World, Omaha, Nebraska”, and styled “Universal Camp Certificate”. The plaintiff, the beneficiary named in the policy, was the husband of the assured, Mary F. Embert. The defendant fraternal order resists payment upon the ground that the policy had lapsed before the death of the assured and under its terms and rights of the beneficiary had forfeited.

From a judgment for plaintiff as prayed for, defendant appeals.

Mrs. Embert died in the City of New Orleans on June 24, 1920. On June 14, 1920, or ten days before her death, she paid a collector called a “deputy” the sum of $2.52. This amount was equal to three monthly premiums of ■ 84 cents each, the policy stipulating this amount of premium and calling for monthly payments in advance. The question presented is the effect of this payment.

The assured was in arrears some three months when the payment was made. The policy contains the following provisions:

“This certificate is granted in consideration of the monthly premium hereinbefore stated in the schedule and of the payment of a like amount on or before the first day of each consecutive month thereafter during the continuance of this contract, and the further consideration of the delivery of this certificate during the lifetime and good health of the member.
“All premiums are payable at the Home Office of the Society, but may be paid to an authorized representative of the So-' ciety; such payments to be recognized by the Society must be entered at the time of payment in the premium receipt book belonging with this certificate. If for any reason the premium be not called for when due, by the authorized representative of the Society, it shall be the duty of the member before said premium shall be in arrears thirty days, to bring or send said premium to the Home Office of the Society or to one of its local representatives. If the premiums are not paid as herein specified, this contract shall become null and void.”
“REVIVAL — Should this certificate become void for non-payment of premium, it will be revived within one year from the date to which premiums have been duly paid upon payment of all arrears, provided satisfactory evidence of the insurability of the member be furnished to the Sovereign Commander; but such revival shall not take effect unless at the date thereof the member is living and in sound health.”

The premium Receipt Book to which reference is made in the policy, contains the following:

“Certificates on which the premiums are unpaid for thirty days or more are forfeited. Money paid to collectors after that time will not be credited on the forfeited certificate by the Society, but the certificate may be renewed subject to the rules of the Society, full particulars regarding which may be obtained from any deputy or at the Branch Office.”

When the $2.52 was paid, the collector issued the following receipt:

“Woodmen of the World Omaha, Neb.
No. 20328. ‘ June 14, 1920.
Received from Mrs. Mary Ermbert $2.52 being in arrears on Certificate No_____________ which the applicant desires the Society to revive.
UNDER NO CIRCUMSTANCES will the Society be liable under said certificate until the certificate has been revived on the book of the Society and the money credited in the Premium Receipt Book belonging to said Certificate.
(Sgd.) H. C. Bushy,
Deputy.”

Plaintiff contends that the acceptance of the three months’ arrears constituted a waiver of the forfeiture clause and cites a number of authorities to this effect. If the acceptance had been unconditional, these authorities would have been opposite, but it was conditioned upon satisfactory evidence of insurability being furnished the Sovereign Commander and conditioned further that at the date of revival the member is in good health.

No evidence of insurability was furnished and as a matter of fact, Mrs. Embert at the time she applied for reinstatement, was 'not in good health. Plaintiff says she was only suffering the usual concomitants of pregnancy, and, in fact, the cause of death is given as “edamsia of pregnancy”, but it appears' that the pregnancy .of plaintiff’s wife was far from normal. She was unable to move about without being placed in a chair and transported in that manner and was only four months advanced at the time of her death following an operation at the Touro Infirmary.

The payment of the arrears was only accepted as meeting one of the conditions requisite for consideration of an application for reinstatement. It would only be accepted as payment of the premium when and if other prerequisites were met. The policy plainly contemplated a medical examination of some sort. If an unreasonable time had elapsed without action on the part of defendant upon the application for revival or if other premiums had been accepted in the interim, there might be some basis for counsel’s contention. But the assured died within ten days of her application. This was not an unreasonable time for consideration and such investigation as defendant deemed proper. It is argued that the collector knew and the District' Manager of defendant knew that Mrs. Embert was pregnant at the time her application was received and that the knowledge of these employees must be imputed to defendant. Even so the knowledge of an unusual but normal condition of a woman member is not knowledge of physical maladies complicating such condition to the extent of endangering her life. Moreover, no layman can by looking at a pregnant woman determine whether her experience is normal or otherwise. In any event, the policy demanded satisfactory proof of insurability and it was not supplied. Courts will not enforce reinstatement unless the reasonable requirements of the policy are met. Cooley’s Briefs on Insurance, Vol. Ill, page 2399.

The policy was forfeited under its terms and Mrs. Embert recognized that fact by signing a request for revival. It could not be renewed except under the conditions mentioned in the policy unless there was a waiver of these conditions by the defendant. We do not find evidence of such waiver. The conditions of the policy were not complied with, indeed could not he complied with at the time of plaintiff’s application since she was stricken with a fatal illness.

The $2.52 paid defendant was not returned nor deposited in court nor tender made plaintiff nor is there any evidence of plaintiff having refused to accept it.

The judgment appealed from must, for the reasons herein assigned, be amended by reducing the amount awarded plaintiff to two dollars and fifty-two cents and, as thus amended, it is affirmed, plaintiff to pay costs of appeal and the costs of the lower court to be paid by defendant.


author: CLAIBORNE, J.

text:
    No. 8867.
    Orleans Appeal.
    TREMONT LUMBER CO. v. ROBINSON LUMBER CO., Appellant.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)
    (January 4, 1926, Judgment Court of Appeal Set Aside and Judgment of District Court Reinstated. 160 La. —, 107 South. 101.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 58, 120; Obligations — Par. 145.
    A lumber mill which has made a contract with another mill to cut and deliver “promptly” a certain' quantity of lumber to a third party for urgent purposes, known to the first mill, cannot recover from the other mill the price of. the lumber tendered 90 days after the contract when the third party refuses to accept the lumber or pay the price owing to the delay.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for the price of lumber. There was judgment in favor of plaintiff for the amount claimed and dismissing defendant’s reconventional demand. The defendant appealed.
    Judgment reversed and case remanded.
    Stubbs, Theus, Gisham & Thompson, of Monroe; Hall, Monroe ■& Lemann, Walter H. Suthon, Jr., of New Orleans, attorneys for plaintiff and appellee.
    Miller, Miller & Fletchinger, of New Orleans, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a suit for the price of lumber.

The plaintiff alleges that on August 2, 1918, it entered into written contract with the defendant company to sell to it for shipment to Loring Swasey, Superintending Contractor, U. S. N., Port Ewen, N. Y., certain pine lumber for the price of $100 a thousand, f.o.b. mill; that in accordance with said contract the plaintiff, on November 6, 1918, shipped from its mill at Rochelle, La., one carload of lumber to the consignee, the value thereof being $1,481.70, which it claims from the defendant.

The defendants admitted the contract but denied that the shipment was in accordance with contract; they averred that the lumber was a rush order intended for the construction of submarine chasers for the U. S. Navy; that the contract provided this order td be shipped promptly and that the bill of lading should be marked “Urgent, National Necessity, Rush”; that the plaintiff was aware of those facts and that he was notified that unless the shipment could be made within thirty days that it should not accept the order; that on October 14, 1918, the plaintiff notified the defendant that it was shipping lumber in car designated as Rock Island 61,918; that defendants at once communicated this information to the consignee; that defendants and the consignee subsequently ascertained that they had been misinformed by the plaintiff, and that no such car had been shipped; that the consignee immediately cancelled the order owing to the delay and misrepresentation and refused to accept the car subsequently shipped by the plantiff; that if the plaintiff had performed their contract defendants would have made a profit of $24 per 1,000 feet of lumber, or $900-05, •which the plaintiff owes them and which they claim in reconvention.

There was judgment in favor of plaintiff for the amount claimed and dismissing defendant’s reconventional demand.

The defendants have appealed.

The evidence fully establishes the allegations of the answer and such was the opinion of the District Judge. But the learned Judge reluctantly based his opinion upon a letter dated November 5th, addressed by the defendant to the plaintiff in these words:

“It is now 90 days and not a car has moved, though you wired us on the 14th of October giving us car number, which we communicated to the consignee. There is only one thing that will possibly let us out of this and that is the immediate shipment of the entire order, and we are going to confidently expect your advice that this has been done within the'next few days.”

Unfortunately before this letter reached its destination, the Hiltebrandt Dry Dock Co. of N. Y., with whom the defendant had the contract to ship the lumber, could wait no longer, and on November 6th wired to the defendant that they canceled the order. Thereupon the defendants wrote to plaintiffs: “We will therefore, be forced to cancel with you.” The Judge of the lower court was of the opinion that the letter of November 5th was a further extension granted to the plaintiff which precluded the defendant from canceling their contract at once without waiting for “the next few days”. Under the circumstances of this case, we would have agreed with the judge had the plaintiff and the defendant been alone involved in the transaction. But to the knowledge of the plaintiff, the defendant had a contract with the consignee in New York who was equally, interested. He was no party to the last extension relied on, and relying upon what he considered his rights, he cancelled his contract. Plaintiff was the cause of it. He cannot now take advantage of his own wrongg to saddle the consequences of his fault upon the defendant. In other words, it would be inequitable for the plaintiff to recover from the defendant the price of the lumber which he knows the defendant cannot recover from the consignee owing to plaintiff’s fault. When the plaintiff became aware that the consignee would not receive the lumber he should have taken steps to minimize his loss.

It follows from the above that' the defendants are entitled to a judgment upon their reconventional demand. But the proof upon that subject is not sufficiently certain. All we see is that the defendant bought this lumber for $100 per M. “rough” f. o. b. Rochelle, La., and that they resold it “dressed” at $140 per M. f. o. b. Port Ewen, N. Y. But we have not been able to- ascertain how many thousands of feet were in the order, nor the "cost of freight from Rochelle to Port Ewen, nor the cost of dressing, nor other items of expense which would diminish the credit.

It is therefore ordered that the judgment herein be reversed and set aside, and it is 'now ordered that there be judgment in favor of the defendants rejecting plaintiffs’ demand at their cost.

It is further ordered that the judgment in favor of the plaintiff rejecting defendants’ reconventional demand be reversed and set aside, and that this case be remanded for further trial for the purpose of establishing with legal certainty the amount of defendants’ loss in accordance with law and the views hereinabove expressed.

The plaintiffs to pay all costs up to this date.


text:
    No. 8896.
    Orleans Appeal.
    MARY HYMEL, Appellant, v. JOS. VAVASSEUR, ET AL.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 208. .
    A mortgagee who swears that she did not sign the note nor the Act of Mortgage will not be believed when the Notary and the two witnesses to the Act, testify that she signed both documents in their presence.
    2. Louisiana Digest — Evidence—Par. 351; Bills and Notes — Par. 233.
    Considering her testimony concerning the note and mortgage, her testimony that she received no consideration for the note and that she was induced to believe that she was signing -her testament will not overcome the testimony of reputable witnesses, and other evidence to the contrary.
    Appeal from the District Court for the Parish of St. James, Hon. Sam A. LéBlanc, Judge.
    This is a suit to annul a note and a mortgage on the ground of want of consideration 'and misrepresentation. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Howell, Wortham & Howell, Martin & Campbell, attorneys for plaintiff and appellant.
    Walter Lemann and Henry L. Himel, attorneys for defendant and appellee.
   CLAIBORNE, J.

This is a suit to annul a note and a mortgage on the grounds of want of consideration and misrepresentation.

The plaintiff alleges that it appears by an Act before Sidney A. Marchand, Notary, dated March 13, 1918, that she acknowledged that she was indebted unto Jeanne Theriot, wife of Jos. Yavasseur in the sum :of-$1,800; .that in order to evidence said ■indebtedness she subscribed a promissory note for a like amount, $1,800, paraphed for identification with said Act; that in .order to secure the payment of said note she granted a mortgage upon certain property mentioned in said Act; that she is not now and never has been indebted unto ■Jeanne Theriot and that she never intended to mortgage her property; that some time prior to March 13, 1918, she had desired to make her testament, to the knowledge of Jeanne Theriot and her husband, Jos. Vavasseur; that on that date “they called on' your petitioner at her home, representing to her that in order to make her testament, it was necessary that she should appear before a Notary Public in the Parish .of Ascension, and upon their solicitation and representation she consented to proceed to the Parish of Ascension and thereupon did proceed to Burnside, in the Parish of Ascension, for the purpose of making her last will and testament, accompanied by the said Mrs. Jeanne Theriot Vavasseur, and her said husband, Jos. Vavasseur, ’ and John Gauthreaux, her nephew, and Miss Mathilde Gauthreaux, her niece; that she was then presented with some documents by the said Notary Public which your petitioner being old, feeble, and near-sighted, could not read, and your petitioner in the belief that said documents contained her testament did affix thereto her signature where pointed out to her by said Notary; that it .was only in July, 1920, that she learned for the first time from the Recorder of the Parish that her property was encumbered; that the Act of Mortgage was not read in her presence nor in the, presence of the subscribing witnesses, and that she affixed her signature thereto upon the fraudulent representation of Mrs. Jeanne Theriot Vavasseur and of her said husband, Jos. Vavasseur, who conspired to defraud her of her property;

That it appears from the Conveyance records that on that same day by Act before the same Sidney A. Marchand, petitioner purchased from John and Mathilde Gauthreaux all their rights in certain property therein described for the price of $60 cash paid to them; that in the same manner she learned for the first time that she had acquired said property;

That since that time Jeanne Theriot has died on January 18, 1919, leaving as her only heirs four minor children;

That the note above described is in the possession of Jos. Vavasseur.

Plaintiff prays for judgment, declaring the said note and mortgage null and void.

The defendants admitted all the allegations concerning the note and mortgage, but denied want of consideration or fraud and misrepresentation.

Preceded by elaborate written reasons the District Judge rendered judgment in favor of defendants, rejecting plaintiff’s demand, and in favor of defendants against the plaintiff on their reconventional demand, and plaintiff has appealed.

Two questions are presented for consideration: 1st, whether there was a consideration for the note and mortgage, and 2nd, did the plaintiff know that she was signing a.note and mortgage and not her testament as she alleged she believed she was signing?

Jeanne Theriot Vavasseur was raised by the plaintiff at her home like one of her children, since she was two years old until she was sixteen, when she married Joseph Vavasseur. John and Mathilde Gauthreaux were the nephew and niece of plaintiff and the latter lived with her since she was ten years old, and John was still living with her. The plaintiff understands English but cannot speak it much; she has received an education and could read and write, but for the last five or six years her sight has failed and she cannot write any more as well; being shown the original note and Act of Mortgage the plaintiff testifies that she did not sign them; being shown the Act of Sale from John and Mathilde Gauthreaux to her she swears that she did not sign it; being shown her signature to the affidavit annexed to her petition in this case, she swears she did not sign that either; her counsel, however, admits that the signatures to the above documents are those of the plaintiff.

The plaintiff is about 80 years old and very feeble. There is no evidence to corroborate plaintiff’s testimony by comparison of signatures or otherwise. But the Notary before whom she signed the note and mortgage and sale swears positively that the plaintiff signed all three documents in his presence in a small room in the presence of several witnesses. He is corroborated by the testimony of John F. Saxon, Vice-President of the Pontchartrain Levee Board, and a witness to the Acts, thoroughly disinterested. Also by John Gauthreaux another witness to the Acts, and by Jos. Vavasseur. In the presence of this overwhelming evidence, a Court could not be asked to believe that the plaintiff did not sign all those documents.

The plaintiff’s denial that she signed these three documents, conclusively shown to have been signed by her, weakens^ her testimony that she believed she was signing her testament and not a note and mortgage. Whatever may have been said before she left her home with the defendant and before she reached her daughter’s home where the Acts were passed, there is no evidence that the Notary or any one else spoke of making a testament. On the contrary, the testimony of the Notary and of Saxon establishes beyond a doubt that the sole subject of conversation was the note, the mortgage, and the" act of sale. The note is in evidence. It is a slip of pale green paper about three inches wide and eight inches long, upon which are printed the usual words of a promissory note. No one could be deceived into believing that this paper was a testament, unless he was illiterate or blind, which was not plaintiff’s case. All of the witnesses who testify that the plaintiff was induced to believe that she was signing a testament are nephews and nieces of the plaintiff, several residing with her upon the mortgaged property and her presumptive heirs and entertaining ill feelings against the defendant. One of them testified that she would not accept pop from Joe Vavasseur if she was choking.

The plea of want of consideration more seriously engaged our attention. It is true that the evidence is that tne plaintiff lived very modestly in an humble country home and that she had no need of money. It is also true that she never appeared to have any money nor to spend any, and that Jeanne Theriot Vavasseur had no means of her own. But opposed to that "is the fact that defendant held three acknowledgments of indebtedness in favor of Jeanne Theriot, two for $550, each dated January, 1915, and a third for $800 dated January 9, 1916, two of which are admittedly genuine; that Joe Vavasseur was an industrious man, working as a blacksmith and wheelwright and as a carpenter and a sugar maker, and as stated by Doctor Bringier, making at a time, plenty of money and that Vavasseur gave all the money he earned to his wife to keep; and this same doctor and three other witnesses who employed Vavasseur in his different occupations, state that Vavasseur was thoroughly honest and faithful, “we can raise a man honest, but not more honest than him; he can’t be beat for honesty”; “just as fine as a man can be”; and the reputation of Jeanne Theriot Vavasseur in the community for truth and veracity was also “very good'”, and the unreliable " character of plaintiff’s testimony.

At the time this suit was filed Jeanne Theriot Vavasseur was dead and unable to defend herself.

The District Judge who saw and heard the witnesses and who perhaps knew some of them, rendered judgment against the plaintiff. We do not feel certain that he has erred; therefore his judgment is affirmed.


author: BELL, J. CLAIBORNE, J.

text:
    No. 9669.
    Orleans Appeal.
    JAMES DAVIS v. NEW ORLEANS PUBLIC BELT R. R., Appellant.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)
    (Reported in 155 La. 504, 99 South. 419.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Judgment—Par. 153, 165.
    Where a question of law as to the liability in tort of a municipality for negligence of its agents and servants in the operation of one of its enterprises, is raised by exception of no cause of action, filed in limine, and subsequently determined by the State court of last resort, the conclusions of that court as to the ques? tion so raised becomes the law of the case, governing all subsequent proceedings which may arise in the case, other than questions of fact necessary for determination of the act of negligence or for the quantum of damages, arising after the remanding of the case for these purposes.
    2. Louisiana Digest — Pleading—Par. 38.
    Objections are properly maintained by the trial court to the subsequent filing of additional exceptions of no cause of action and of supplemental answer, tending on the. face of such pleadings to change the issues and defenses originally pleaded or to re-open points or questions previously litigated and finally determined.
    3. Louisiana Digest — Appeal—Par. 625.
    The conclusions of the trial judge as to the facts, unless clearly erroneous; and as to the quantum, unless clearly excessive, will not be disturbed.
    Appeal from Civil District Court for the Parish of Orleans, Division “F”, Hon. Percy Saint, Judge.
    This is a damage suit for damages arising ex dilecto. An exception no cause of action was maintained by the district court and the Court of Appeal but reversed by the supreme court on a writ of certiorari. The case wmas remanded for re-trial on the merits. The defendant then filed a supplemental pleading which was rejected.
    Defendant appealed.
    Judgment affirmed.
    Edw. Rightor, attorney for plaintiff and appellee.
    W. McL. Fayssoux, McCloskey & Benedict, attorneys for defendant and appellant.
   BELL, J.

This case is before this court for the second time, this time on appeal from a final judgment of the District Court, rendered on April 23, 1924, in favor of plaintiff, for damages in the sum of $7,500.00. The City of New Orleans, defendant and appellant, now contends that it has not “had its day in court on a crucial question of fact”. From the evidence in this case, it cannot be seriously contended that the death of plaintiff’s son arose from any other cause than the gross negligence of defendant’s agents or employees while operating one of the trains of the Public Belt Railroad. The quantum of damages awarded are, in our opinion, not excessive, and should remain as fixed by the trial court, at the sum of $7,500.00. With this matter determined, there is but one question before us for further consideration, and that is whether the bill of exceptions taken by defendant at the final hearing in the District Court should be maintained and whether the case should be remanded, with directions to the trial court to receive and consider the supplemental answer and exceptions heretofore filed and rejected, and whether the court a qua shall be directed to try the issues thereby raised.

It is contended now by counsel for defendant and appellant that the trial court, having in the first instance referred defendant’s original exception of no cause of action ' to the merits, defendant is thus deprived of an opportunity to make full and ample presentation of certain facts applicable to the law upon which the original exception of no cause of action shall be predicated; that nowhere in pleadings, testimony, briefs or' arguments was the question of the operation of the Public Belt Railroad, for private profit or private gain, ever raised.

Considering the foregoing contention, it is proper to quote in extenso from the trial judge’s reasons for judgment, which are as follows:

“REASONS POR JUDGMENT.
“This is a damage suit instituted against the defendant for damages arising ex delicto. At the outset, plaintiff’s petition was met with the peremptory exception of no cause of action, and under the ruling of the Supreme Court, in the case of Jones vs. City of New Orleans, reported in the 143 La. 1074, 79 South. 865. I am forced to maintain the exception.
“The exception was referred to the merits because of the urgent contention of counsel for plaintiff that if the Public Belt Railroad was to be maintained and operated by the City of New Orleans, that, by all custom, and by the ruling of the Interstate Commerce Commission, ‘operating expenses’ necessarily include whatever expense may be incurred by reason of damages flowing ex delicto from the ‘operation’ of the road. Counsel for plaintiff argue that if the City was authorized to ‘maintain and operate’ the belt road, that it was authorized and directed by the Constitution of 1913 to pay all ‘operating’ expenses, as well as maintenance cost and expenses. The Constitution of 1913 does authorize and direct the City, through the Board of Commissioners, to maintain and operate the Belt Railroad, and that all earnings, or revenue, over and above these expenses (including operating expenses) shall go to the payment of the bonds issued by the Public Belt Railroad. This is the reason the exception was referred to the merits and decided after hearing on the merits.
"On the merits, I deem it proper to say that the evidence shows that the operation of the train which killed the son of . defendant, was negligent; the evidence shows that' no precaution was taken by those operating the train, and that ordinarily the plaintiff should recover substantial damages; but, under the Jones case, above decided, I must dismiss plaintiff’s suit, and it is so ordered.”

By a majority opinion, this court affirmed the judgment of the trial court, maintaining the original exception of no cause of action, but on the writ of certiorari to the Supreme Court, whose decision is found in Davis vs. New Orleans Public R. R., 155 La. 509, 99 South. 419. That court, differentiating the Jones .case, reversed the judgment of this and the District Court, overruled the- exception of no cause of action and remanded the case for re-trial -on the merits. The salient points to be noted in the opinion of the Supreme Court are found in what is here quoted:

“We shall not go into the matter of whether, if the Board of Port Commissioners should find it necessary to take over and operate the railroad system to insure the payment of the bonds, it would be liable for a tort; it will be time enough to determine that question when and if such issue should arise. We shall confine' ourselves to the question of liability of the city through the Public Belt Railroad under the facts of this case.
“The duty of operating a public belt railroad through a commission was voluntarily assumed by the City of New Orleans in its original ordinance heretofore mentioned, which was subsequently approved and ratified by the Legislative and Constitutional amendment. This was done solely for the private benefit of the city and its inhabitants. It is true that the said act and amendment have subsequently hedged it about with certain restrictions and limitations, but; this was for the protection of the bondholders and to insure a continuance of its operation for the benefit of the people of the community. However, this has not had the effect of making it a State agency solely charged with the discharge of a Government function; nor has there been any provision exempting it from the character of liability here claimed. Its nature and purpose still remain the same, i. e., that it is a department of the City of New Orleans discharging a municipal or corporate function for private gain and for the private benefit and advantage of its inhabitants.”

In compliance with the mandate of the Supreme Court that this case should be reconsidered on its merits, the defendant, on the calling of the case for retrial, filed a supplemental answer. To the rejection of this document or pleading by the judge a quo, the bill of exceptions, now before us, was taken. This supplemental pleading, reiterative as to exception of no cause of action, is coupled with an extensive answer, offered and. intended as an answer supplemental to the original answer by which the issues in the case were primarily established. This document, after careful recital of the historical development and perpetuation of the Public Belt Railroad by ordinance, as well as legislative and constitutional enactments, sets up, in part, as follows:

"Now, respondent avers that the Honorable Supreme -Court decided the exception of no cause of action upon grounds not presented by the pleadings, arguments or briefs; that said grounds were not adverted to directly or indirectly before this Honorable Court or before the Court of Appeal, and nothing in the opinion of the Court of Appeal touches thereon; that the opinion of the Supreme Court excepts this defendant from the operation of the general rule of law, without passing upon the question of ‘maintenance’ and ‘operation’ or the meaning thereof, and, in fact, failed to consider the entire argument submitted to the court by both litigants thereupon, and said Honorable Supreme Court decided against this defendant upon a question of fact, which said Honorable Court assumed, without evidence whatever, and as to which this defendant has not had its day in court.
“That, as appears by the opinion of the Supreme Court, made part of this -answer, it is shown that this court found as a fact that this respondent was operating for a private gain and profit of the inhabitants of the City of New Orleans, and, hence, it held that its operation of the Belt Railway System fell without an act of governmental agency, rendering it liable for the torts of its servants.
“Now, your respondent most respectfully avers that the facts are the reverse of those found by said eo.urt; that respondent’s confirmed policy had not, has not, does not, and will not contemplate an operation for-profit or private gain, and this policy has been in effect for fifteen years; that in its judgment the Honorable, the Supreme Court, was without power under Article 895, Code of Practice, to pass upon and decide issues, particularly of fact, not raised-below, and that, if given the opportunity, your respondent will demonstrate the incorrectness of the conclusions of the Honorable Supreme Court upon said facts.”

It is now argued in support of the bill of exceptions taken to the order rejecting the supplemental pleadings, that said refusal or rejection is tantamount to a denial to exceptor of due process of law. Upholding such contention would be, in effect, a pronouncement by this court — an intermediate, appellate tribunal — that the trial judge was in error in failing to observe or follow the jurisprudence of our court of last resort, as expressed in its decision in the instant case, and reported in 155 La. 504, 99 South. 419.

Since the rendition of the judgment now appealed from, the law, clearly enunciated as to the status of the Public Belt Railroad concerning liability in tort actions, has been forcibly reiterated in the case of Solomon vs. City of New Orleans, 156 La. 629, 101 South. 1, where the Supreme Court, under circumstances identical with those in the instant case, declared:

“Our conclusion is that the Public Belt Railways System of New Orleans is owned and operated by the City for pecuniary profit under a lawful grant of authority from the State; that it is a private enterprise of the said City, not governmental in its nature and character, and that the City is liable for the negligence and torts of its agents and servants in the operation of said enterprise.
“The precise question here involved was at issue in the case of Davis vs. New Orleans Public Belt R. R., No. 25,971 of the docket of this court, 155 La. 509, 99 So. 419, the opinion in which was handed down June 30, 1923. We there held that the said railways system was a department of the City of New Orleans, discharging a municipal function- for private gain and for the private benefit and advantage of the inhabitants of the city. We have considered the able and exhaustive brief of the special counsel for the Public Belt Commission for the City of New' Orleans and the authorities cited and disclosed by them, but we see no reason to depart from our former ruling in the Davis case.”

. It is finally urged that the Supreme Court of Louisiana, in denying a rehearing in this matter, could only have done so under ignorance of the fact that this case had already been tried on the merits before consideration by that court, and, further, upon the Supreme Court’s belief that the defendant might yet interpose the defenses now sought to be presented by the supplemental answer. This surmise or theory as to the reasons for the court’s denial of a rehearing are shown to be groundless after a perusal of defendant’s brief on rehearing, filed in the Supreme Court. Our attention is urged by counsel for appellee to a copy of said brief. We note therein that the substantial averments made against the operation of the Public Belt for private gain or private profit, as found in the supplemental answer, are strenuously urged arguendo in said brief.

In Black on “Law of Judicial Precedents”, page 262, it is said:

“When a point or question arising in the course of a litigation is once solemnly and finally decided, the rule or principle of law announced as applicable to the facts presented becomes the law of that case in all its subsequent stages or developments, and is binding both upon the parties and their privies and also upon the court, so that the former will not be permitted, nor will the latter consent, to reopen the same issues for further consideration whatever grounds there may be for regarding that decision as erroneous.”

See also Cusach vs. Dugue, 113 La. 261, 36 South. 960.

To maintain the bill of exceptions now

before us and to remand this case for further trial under the issues raised by the supplemental pleadings would be not only futile, but, in our opinion, contrary to all precedent in regard to the respectful observance which should be given by intermediate State Courts to the solemn and final pronouncement of the Superior State Court of last resort.

We are of the opinion that the bill of exceptions is not well taken and should, therefore, be dismissed.

It is now ordered, adjudged and decreed that the judgment herein appealed from be and the same is hereby affirmed at defendant’s costs in both courts.

CLAIBORNE, J.

I respectfully dissent. I think the supplemental answer should have been received and the objection to its admission rejected; and for that reason that the case should be remanded.


author: BELL, J.

text:
    No. 8928.
    Orleans Appeal.
    PENICK & FORD, LTD., INC., Appellant, v. JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, AGENT OF THE UNITED STATES.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 131.
    In an action for damages tp interstate shipments of freight, brought in the District Court of Louisiana, on February 27, 1922, against the Director General of Railroads, upon shipments made, respectively, March 30, 1918, and February 27, 1918, prescription of two years, under Louisiana Statute — Act 223 of 1914 — is properly maintained.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 131.
    Section 206 (a) of the Federal Transportation Act of February 28, 1920, in its application to State statutes of limita- ■ tion, in no manner extends the time allowed under such statutes for bringing actions against carriers which were previously under Federal control, for loss of or damage to shipments made during such control.
    Appeal from the Civil District Court fpr the Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    This is a suit for loss from or damage to two shipments of molasses. Judgement for defendant. Plaintiff appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal & Milling, attorneys for plaintiff and appellant.
    Leovy & Chaffe, Harry McCall, attorneys for defendant and appellee.
   BELL, J.

On February 27, 1922, plaintiff brought suit in the Civil District Court for the Parish of Orleans, for $417.95 for loss from or damage to two shipments of molasses made by it from New Orleans, La., one on March 30, 1918, to. New York City, and the other on February 27, 1918, to Boston, Mass. These shipments, it was averred, were delivered to the Director General of Railroads for transportation by steamers of the Southern Pacific System, whose property was then in the possession of, and was being operated by, the Director General as a common carrier for hire. Federal control having terminated on February 29, 1920, the action was brought against the Agent appointed by the President in accordance with Section 206 (a) of the Transportation Act, 1920 (Act of February 28, 1920, 41 Stat. L., 461).

The Federal Agent appeared and pleaded the two-year prescription provided by Act No. 223 of the General Assembly of the State of Louisiana, passed at the Regular Session of 1914:

“All actions for loss of or damage to shipments of freight shall be prescribed by two years, said prescription to run from the date of shipment.”

The plea of prescription was maintained by the District Court and suit dismissed. Plaintiff appeals.

This appeal presents but one question, that is, whether the Louisiana Statute, Act 223 of 1914, applies in barring an action admittedly brought as to both shipments more than two years after dates of shipment, against defendant as agent of the United States, in accordance with Section 206 (a) of the Transportation Act, approved February 28, 1920.

Section 206 (a.) of the Transportation Act provides that:

“Actions at law, suits in equity and proceedings in admiralty, based on causes of action' arising out of the possession, use, or operation by the President of the Railroad or system of transportation of any carrier (under the provisions of tifa Fed- • eral Control Act, or of the Act of August 29, 1916) of such character as prior to Federal Control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated- by the President within thirty days after the passage of this Act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal Statutes but not later than two years from the date of the passage of this Act, be brought, in any court which but for Federal control would have had jurisdiction against the cause of action had it arisen against such carrier.”

It is contended by counsel for plaintiff that, under the correct interpretation to be given the above-quoted section of the Act of Congress that the State Statute (223 of 1914) if at all applicable, cannot be so applied as to prescribe the action of plaintiff in this case; that while Congress, with the return of carriers to private control, intended by the Transportation Act to provide methods by which all claims arising during the period of Federal control should be thenceforth disposed of, that it did not intend by said section of the Act to adopt all of the States’ Statutes of limitation which were then in existence; that “Congress (quoting from plaintiff’s brief) did not disregard this entirely, nor did it adopt them wholly, but it did adopt the periods provided for in such statutes, conditioning such adoption on this — that such periods should run only from the date of the adoption of the above-quoted section of the Transportation Act. In other words, if we •understand counsel’s contention, it is argued that it was the intent of Congress to extend, wherever extension was possible, the period of limitation designated under a particular statute, to some additional period, not, however, beyond two years from the date of passage of the Act. We are of the opinion that such construction would do the greatest violence to the expressed language found in the Act. It should be noted that while granting consent to the bringing of actions therein designated against the Federal Agent, the consent is given 'on the definite contingency ■or condition that such suits be brought within the period of limitation, where designated; that is, within the periods of limitation now prescribed by State or Federal statutes, but not later than two years from the date of passage of this Act.

The argument of counsel for defendant, supported by highest authority, is to the effect that the condition under which the United States Government consents to be sued through its Federal Agent, is a condition the language of which should • be strictly construed. With this view, we are in entire accord.

In Davis vs. Donovan, 265 U. S. 257, 263, the United States Supreme Court held as follows:

“During the year 1919 the United States were in possession and complete control by the Director General of the important railroad systems throughout the country. Northern Pacific Ry. Co. vs. North Dakota, 250 U. S. 135. As the representative of the United States he was subject to be sued for the purposes, to the extent and under the conditions prescribed by statute and orders issued thereunder — and not otherwise. DuPont De Nemours & Co. vs. Davis, 264 U. S. 456.”

See also Davis vs. O’Hara, 206 U. S. 314-317, in which it was held in an action against the United States that the railroads were taken over and operated by the United States in its sovereign capacity, and that the sovereign’s immunity from suit was waived only to the extent indicated by statutes and orders of the Director General.

Prescription on actions against carriers for loss of, or damage to, shipment of goods is that which is provided by the law of the forum in which the action is brought. (17 Ruling Case Law, 694, 695; Campbell vs. Haverhill, 155 U. S., 610, 613; Chattanooga Foundry Co. vs. City of Atlanta, 203 U. S. 390, 397; Boman vs. Southern Menhaden Corporation, 294 Fed. 362.

Applying Act 223 of 1914 to the facts of this case, as previously discussed, we' are of the opinion that the judgment maintaining the exception of prescription herein pleaded is correct and should be affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment herein appealed from be and the same is hereby affirmed, at plaintiff’s costs in both courts.


text:
    No. 8949.
    Orleans Appeal.
    PENICK & FORD, LTD., INC., Appellant v. JAS. C. DAVIS, Director General, Agent of the United States.
    (May 25, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods. — Par. 131.
    Plaintiff sues for damages alleged to have been occasioned certain shipments of freight shipped by plaintiff during Federal control of the railways. All shipments were made more than two years before the suit was intituted. Defendant pleads the prescription of two years as established by Act 223 of 1914. From a judgment maintaining the plea of prescription plaintiff has appealed.

      ■ Appeal from .Civil District Court, Hon. Wynne G. Rogers, Judge.
    Judgment affirmed.
    Milling, Godchaux, Saal & Milling, attorneys for plaintiff and appellant.
    Denegre, Leovy & Chaffe, attorneys for defendant and appellee.
   WESTERFIELD, J.

For reasons given in Penick & Ford Inc. vs. James C. Davis No. 8928 Orl. App. the judgment appealed from is affirmed.


text:
    No. 8930.
    Orleans Appeal.
    FRANK G. CHURCHILL v. ALBERT G. THOMAS, Appellant.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62; Appeal — Par. 568.
    An exception of no cause of action addressed to the insufficiency of allegation of plaintiff’s petition which was susceptible of amendment, filed in the lower court, after the trial upon the merits and not passed upon by the trial court will not be considered an appeal.
    2. Louisiana Digest — Builders and Buildings — Par. 2.
    Where an architect is employed to prepare plans for a contemplated work and his compensation fixed at 5% of the lowest bid received for doing the work and no bids are asked for and the work not undertaken because of the employer’s failure or refusal to go on with the contemplated. building, the. employer will be held to have waived the necessity of obtaining bids as a basis for fixing the architect’s compensation and the ar- . chitect will- be entitled to compensation upon a quantum meruit.

    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    This is ' a suit for the fee of an architect for professional services.
    Judgment for plaintiff. Defendant ' appealed.
    Judgment amended and affirmed.
    Terriberry, Rice & Young, attorneys for plaintiff and appellee.
    Ed. Rightor, attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff, an architect, sues defendant for $750.00 alleged to. be due him as a fee for professional services. From a judgment in plaintiff’s favor as prayed for, the defendant has appealed.

After trial upon the merits, defendant filed in the lower court an exception of no cause of action which was addressed to alleged insufficiency of allegation in plaintiff’s petition. The exception does not appear to have been passed on below but if it had been filed in limine and maintained, plaintiff would have been permitted to amend. It is now too late. Succ. of Lefort, 139 La. 61, 71 South. 215, and authorities there cited.

The evidence establishes plaintiff’s employment under the following conditions expressed in a letter of plaintiff to defendant and assented to by defendant:

“In reference to our conversation regarding the alterations to your residence, 444 Audubon St., will say that my commission for services will be as follows:
“Preliminary plans One Hundréd and Eighty Dollars ($180.00).
“If the Working Plans and Specifications are made and bids taken and work then discontinued, my commission will be 5% of the total of the lowest bids received.
“If the work should go ahead, under my supervision, my commission will be 10% of the total final cost.
“In both of the two last cases referred to above, the fee for the Preliminary Plans is absorbed in the fee named.
“Awaiting your advice in the matter, I beg to remain.”

Defendant admits being indebted to plaintiff in the sum of $180.00 for preliminary plans, but denies any further indebtedness.

It appears that defendant desired to remodel his residence so as to convert it into two apartments and it was for this purpose that plaintiff was employed. Many conferences were had between plaintiff and defendant in which defendant’s wife participated occasionally with the result that working plans were finally prepared and approved. For some reason, apparently because ' defendant believed the cost of .■ executing' plaintiff’s plans wopld be too much' for his means, because, as he declares, the plans were “too fancy” or upon other considerations best known to defendant the plans as prepared by plaintiff were abandoned and defendant ceased calling at plaintiff’s office and evinced no further interest in the project. Defendant was, of course, privileged to take this course, but plaintiff had performed his part of the agreement and was entitled to compensation under the agreement between them entitling him to “5% of the total of the lowest bids received”. No bids were received, however, and defendant claims that plaintiff can only claim the 5% commission “if the working plans and specifications are made and bids taken”. But plaintiff testifies without contradiction that he asked defendant upon several occasions for permission to obtain ■ bids and was told to wait awhile,, defendant evidently intending to evade the taking of bids. Plaintiff was in no position as architect to call for bids without defendant’s permission as owner. To ask contractors for bids for work which he knew would not be let in order to establish his claim for commission would not be calculated to produce reliable estimates of the cost of the work if the contractors were advised that such was the only purpose of taking the bids and if the contractors were not so advised a manifest injustice would be done the contractors in putting them to the expense and labor of estimating the cost of a moot contract. Under the circumstances, defendant must be held to have waived this provision of the contract.

Since the bids were not taken there is no method by which we can ascertain the lowest bid upon which to compute the 5% commission due plaintiff. The testimony of plaintiff to the effect that he guesses the cost would have been at least $15,000.00 and of another architect testifying in plaintiff’s behalf to the same effect, we cannot accept as controlling. We must consider plaintiff’s compensation upon a quantum meruit, as the only means of ascertaining the value of his services. Under ordinary conditions, we would, in view of the paucity of evidence as to the value of plaintiff’s services, remand the case. But. the plaintiff is dead and his heirs prosecute this case. The transaction was had about five years ago and in the meantime the defendant’s house has been remodeled under other plans as appears from the record. In the work which defendant finally had done to his house, he says he expended about $7,000.00. We have concluded to accept this sum as a basis for computing the 5% commission due plaintiff.

For the reasons assigned, the judgment appealed from is amended so as to reduce the amount awarded plaintiff to. the sum of $350.00 and as thus amended it is affirmed. Plaintiff to pay costs of appeal.


author: PER CURIAM:

text:
    No. 8957.
    Orleans Appeal.
    MYLES SALT COMPANY v. MORGAN'S LOUISIANA & TEXAS R. R. & S. S. CO.
    (April 27, 1925, Opinion and Decree.)
    (May 20, 1925, Motion to Withdraw Exhibit.)
    (May 21, 1925, Order.)
    Appeal from the First City Court for the City of New Orleans, Section “B”, Hon. Val. J. Stentz, Judge.

      Milling, Godchaux, Saal & Milling, attorneys for plaintiff and appellee.
    Denegre, Leovy & Chaffe, Edward L. Gladney, Jr., attorneys for defendant and appellant.
   ON REHEARING.

PER CURIAM:

This case having been tried de novo on appeal by the presiding judge of this court and the judgment appealed from reversed, and on application for rehearing, duly granted, this court having again considered, en banc, the appeal herein taken, and the court being now of the opinion that its former judgment is correct,

It is ordered that the judgment of this court, herein rendered on the 12th day of March, 1922, be reinstated as the final judgment of this court.


text:
    No. 9361.
    Orleans Appeal.
    SUCCESSION OF OCTAVIA HARRISS.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 94.
    In a suit involving the legitimacy of children, an appeal to this court from a judgment founded on such' an issue is erroneous. A motion to dismiss the appeal on this ground will be maintained, only to the extent of transferring the appeal to the Supreme Court having exclusive appellate jurisdiction thereof, under Sec. 10, Art. VII, Constitution of 1921.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “B”, Hon. M. M. Boatner, Judge.
    Appeal transferred to the Supreme Court.
    Stamps Farrar, attorney for petition of Lucy Kibby Badger, plaintiff and appellee.
    Charles J. Mundy, attorney for exceptor, defendant and appellant.
   BELL, J.

On February 28, 1923, Louisa Kibby-Jones filed her petition in the Civil District Court for the Parish of Orleans, praying to be recognized as the sole legal heir-at-law of her sister, Octavia Harriss, deceased, and, as such, placed in possession of decedent’s entire estate.

The inventory taken pursuant to the Court’s order, shows the assets of this Succession to have been the sum of $1,704.81.

On March 8, 1923, a judgment was signed, decreeing the said petitioner, Louisa KibbyJones, to be the sole legal heir of her sister, Octavia Harriss, deceased, and sending her into possession of decedent’s entire estate.

On March 12, 1923, one Caswell P, Ellis, Jr., filed a third opposition, claiming to be a creditor of this Succession in the sum of $354.30, and praying for a rule to show cause why security should not be furnished for said claim, and that, in the alternative, an administrator be appointed.

Thereafter, on March 22, 1923, a petition was filed by one Lucy Kibby, wife of Louis Badger, praying that she be appointed as administratrix of the Succession of Octavia Harriss, and alleging that she was a legal child of Harvey Alonzo Kibby, a deceased brother of the decedent, and, also, .that another child of Harvey Alonzo Kibby, Jeannetta Stone, was also a legal heir, and they claimed an undivided one-fourth each of decedent’s estate.

Respondent answered, .first, by exception that the petition did not show on its face a right or a cause of action.

Reserving all her rights under said exceptions, respondent answered, alleging that Harvey Alonzo Kibby had never been married; that he had lived with a number of women at different times, and that by two of them he had had children; that Lucy Kibby-Badger was a bastard child of Kibby’s by a woman named Mathilda and that Jeannetta Stone was also a bastard child by another woman; that at the time Kibby lived with Mathilda (mother of Lucy Badger) he at the same time lived with another woman named Mary and in the same house, both women going by the name of Kibby.

On April 30, 1923, the District Judge gave judgment for the plaintiff, Lucy KibbyBadger, by setting aside the judgment of March 8, 1923, by which Louisa Kibby-Jones had been put in possession; the later judgment decreeing Lucy Kibby-Badger to be a legal child of Kibby and appointing her as administratrix of decedent’s estate:

From this judgment, Louisa Kibby-Jones prosecutes this appeal.

In the motion for suspensive and devolutive appeal taken from the aforesaid judgment of April 30, 1923, appellant sets forth as grounds for the appeal that the judgment is erroneous in this, to-wit:

1st. That the plaintiff, Lucy Kibby-Badger, failed to prove on the trial of this case, that a marriage, either slave, or otherwise, had ever been performed between her alleged mother and her alleged father, Harvey Alonzo Kibby.

2nd. That she utterly failed to prove at said trial that she was a legitimate child of her father, Harvey Alonzo Kibby, and that, as such she was entitled to be cldssed as a legal heir to any part of this Estate.

3rd. That the Court erred in holding, on the strength of the meagre evidence produced. in her behalf, and in the face of strong evidence to the contrary, that- the said Lucy Kibby-Badger, was a legitimate child of Harvey Alonzo Kibby, and, as such, entitled to share in the distribution of her alleged aunt, Octavia Harriss, deceased.

On the 1st day of April, 1925, Lucy KibbyBadger, appellee herein, moved in this court for dismissal of the .appeal in that the same involved the legitimacy of children, and hence a subject not within-the jurisdiction of this court, but only of the Supreme Court of Louisiana, under Sec. 10, Art. VII of the Constitution of 1921.

This court is bound to take cognizance of its want of jurisdiction. (Lichtenstein vs. New Orleans Ry. & L. Co., 9027 Or. App.)

Considering the record disclosures, as above noted, we are of opinion that we have no jurisdiction to pass on the issues involved in this appeal. However, the appeal should not be dismissed, but the case should be transferred to the Supreme Court.

It is, therefore, ordered that this case be transferred to the Supreme Court of Louisiana, and that the record herein be filed in said court within fifteen (15) days from the time that the decree herein shall become final, the costs of appeal to this Court to be paid by the appellant.


text:
    No. 9826.
    Orleans Appeal.
    R. GIEFERS, RECEIVER OF LOUISIANA LOAN & INVESTMENT CO., Appellant, v. FERDINAND NEGRI.
    (April 27, 1925, Opinion and Decree.)
    (May 11, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pledges—Par. 25, 29; Bills and Notes — Par. 197.
    While a payee of a promissory note secured by collateral may take such legal steps as are necessary to enforce payment of the security, he is under no legal obligation to do so, in the absence of any special agreement to that effect. His failure so to act is no defense to an ordinary suit on a note when matured.
    2. Louisiana Digest — Evidence—Par. 215.
    Where neither fraud nor error is pleaded as a defense to the suit, objections to verbal testimony to vary the written obligation sued upon should be- maintained.
    (Civil Code, Art. 2276. Editor’s note.)

      (Additional Syllabus by the Editor.)

    3. Louisiana Digest — Courts—Par. 92.
    Under Act No. 128 of 1921 the city courts of New Orleans are governed by laws regulating the District Courts and consequently Code of Practice, Art. 140, applies to proceedings held therein. •
    Appeal from the First City Court for the City of New Orleans, Section “A”, Hon. Leon L. Labatt, Judge.
    This is a suit for a balance due on two promissory notes. Judgment for . defendant. Plaintiff appealed.
    Judgment reversed.
    Marcus & Corkefn, attorneys for plaintiff and appellant.
    Theo. Cotonio, attorney for defendant and appellee.
   BELL, J.

Plaintiff, through its duly qualified receiver, sues defendant for a balance due on two promissory notes, long since matured, and which are made part of the petition' and which are executed by defendant to the order of the plaintiff corporation. The prayer of the petition is for an ordinary judgment, in the sum of $157.25, with interest as stipulated.

The defendant pleads, by way of exception, that Giefers, as receiver, is without right or interest to appear and prosecute the suit; that he has not been duly and properly authorized to file these proceedings, and that the petition discloses no right or cause of action. The trial court referred these exceptions to the merits. The record of the receivership proceedings, No. 146,707 of the docket of the Civil District Court for the Parish of Orleans, offered in evidence by the defendant, and now before us for consideration, clearly discloses, by the judgment of the court rendered therein, on the 6th of April, 1923, as well as by letters of receivership and other documentary evidence, that the first two, exceptions are without merit. The order of the district court, rendered in the same proceeding, under date of February 19, '1925, appointing Herbert Rooney vice R. Giefers, receiver, and said Rooney’s subsequent qualification as receiver, together with the order of'this court, entered in this suit now on appeal, dated March 28, 1925, establish fully authority in the present receiver to stand in judgment herein. There is no merit to the third exception of no cause of action.

Defendant’s answer denies the allegations of plaintiff’s petition, and admitting signature to the note sued upon, it is specially pleaded that the indebtedness evidenced by the notes was secured by ten shares of preferred stock in favor of the defendant, under Certificate No. 738, issued by the Louisiana Loan and Investment Co., Inc., and dated June 11, 1920; that should it be decreed that the notes show unconditional indebtedness on the part of defendant, that in such event defendant would be a creditor of this plaintiff corporation to the extent of the value of said stock and thus entitled to compensation and set off of his indebtedness to the plaintiff against the value of the stock. Further answering, defendant avers “that if the court should hold that the value of the stock cannot be compensated against the indebtedness, then and in that event only, and again in the alternative, defendant says that any judgment which may-be recovered aganist him can only be made executory to the extent that his indebtedness may be necessary to liquidate and pay the debts of the corporation. The answer concludes with the prayer that the plaintiff’s suit be dismissed at his costs, and for general; relief.

There was judgment of non-suit, from which plaintiff has appealed.

It is contended in argument before this court by counsel for defendant and appellee, that there was error in the trial court in ruling that the plaintiff should not be compelled, under subpoena duces tecum, to produce the books of the corporation, under objection made at the trial by said plaintiff that defendant had failed to comply with the provisions of Art. 140 of the Code of Practice, in that the applicant for the subpoena duces tecum, had failed to designate, in compliance with the Code of Practice, the specific books, papers or documents required under the subpoena, nor had the defendant set out the facts intended to be established by such books or documents. It is now argued that the aforesaid article of the Code of Practice does not apply to proceedings in a City Court, which are carried on the same as in Justice of the Peace Courts, and that had the trial judge enforced the production of the books, defendant would have been able to establish evidence material to his defense.

We find the ruling of the court to have been correct, and that the contention now made is not well founded, nor is the authority cited by appellee, Wertheimer vs. Favalora, 116 La. 490, 40 South. 848, now the law on the subject, for the reason that under Act 128 of 1921, it is provided that all proceedings in the City Courts of this State in cities over 100,000 inhabitants, etc., shall be governed by the general laws regulating proceedings before the District Courts.

The ruling of the trial judge in not compelling the plaintiff to produce the books of the corporation, because the subpoena duces tecum had .not issued in conformity with Art. 140 C. P., was correct.

This is a simple suit on promissory notes importing valuable consideration, and which the defendant has admitted, both by his pleadings and testimony, to have signed. The indorsements on the notes show that they were secured by pledge of the certificate of stock referred to in defendant’s answer.

At the trial of the cause, testimony was offered by defendant, and admitted over plaintiff’s objection, to the effect that defendant had given verbal instructions to the plaintiff corporation to sell his stock and appropriate the proceedings to the payment of his indebtedness on the notes, and that at the time he so authorized the corporation, the stock was of such value as to have more than discharged his obligation. Such evidence should have been rejected as clearly inadmissible to vary the terms of the written obligation sued upon. In the absence of any defense setting forth fraud or error, all such evidence must be disregarded.

In Friedlander vs. Schmalinski, 35 La Ann. 520, it was held:

“Where a debtor agrees to pay a certain sum at a specified time, less the amount which pledged collaterals may realize, the creditor may, as pledgee, take legal steps to enforce payment of the securities, but is under no legal obligation to do so; in the absence of any special understanding for that purpose.
“His failure thus to act cannot be opposed to him when, maturity having arrived, he seeks payment of his claim.”

An examination of the notes sued upon does not show any stipulation therein whereby the plaintiff is compelled or even authorized to sell pledged stock in any manner other than at judicial sale, after a judgment duly obtained, but, as heretofore noted, the prayer of the petition is for recovery of a money judgment for the balance due on said notes, without even recognition of the pledge evidenced by the collateral referred to. The defendant’s indebtedness on said notes has been duly admitted. The law and the evidence is clearly in favor of plaintiff. We see no serious defense to this suit.

It is, therefore, ordered that the judgment of non-suit be set aside, and that there now he judgment in favor of the Louisiana Loan and Investment Company, Inc., Herbert Rooney, Receiver, and against the defendant, Ferdinand Negri, in the full sum of One Hundred and Fifty-seven and 25/100 Dollars ($157.25), with legal interest upon One Hundred and Seven and 25/100 Dollars ($107.25) from August 6, 1921, until September 9, 1921, and legal interest upon One Hundred and Fifty-seven and 25/100 Dollars “($157.25) from September 9, 1921, until paid, together with ten per cent, attorney’s fees on One Hundred and Fifty-seven and 25/100 Dollars ($157.25), and for costs in both courts.


text:
    No. 9857.
    Orleans Appeal.
    RESONIA THOMPSON, Widow, Appellant, v. J. B. LEVERT LAND CO., INC.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 156, 157.
    Plantation or farming operations are not hazardous within the detailed enumeration and classifications of Section 1 of the Workmen’s Compensation Law of Louisiana (Act 20 of 1914 as amended) and a farm laborer upon such a farm or plantation does not come within the law’s provisions.
    2. Louisiana Digest — Master and Servant —Par. 153; Insurance — Par. 20, 28.
    A contract of insurance under which the insurer agrees to pay to the .assured’s employees such compensation as may be due them under the provisions of the Compensation Law, is a contract personal to insurer and insured and can in no way work an estoppel or alter the provisions of the law as to coverage.
    3. Louisiana Digest — Master and Servant —Par. 160 (c), 160 (e).
    A contract of compensation insurance written under the provisions of the compensation law becomes a contract for the benefit of a third person (employee) and directly enforceable -by such employee when and only when compensation is awarded or agreed upon, or where the employer becomes insolvent, or execution upon a judgment for compensation is returned unsatisfied (Sections 23 and 25 of Act 20 of 1914, as amended). Even if, and when,' a contract of compensation insurance be deemed a contract for the benefit of a third person, such contract could have no bearing on an action by such third person against only the employer.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “B”, Hon. M. M. Boatner, Judge.
    This is a suit brought under the Workmen’s Compensation Act, by the widow for compensation for death of husband.
    Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Chas. J. Mundy, attorney for plaintiff and appellant.
    John May, attorney for defendant and appellee.
   BELL, J.

This is a suit in which the widow of one Leonard Thomas, a former employee of defendant, brings suit under the Workmen’s Compensation Act, and alleges that her husband, the deceased, lost his life on the morning of June 5, 1923, while on his way to work and while in the act of crossing Bayou Lafourche, a navigable stream in the State of Louisiana, and while upon a small ferry provided by defendant for the use of such of its employees as live in Thibodaux, having occasion to cross Bayou Lafourche on their way to its property, known as Rienzi Plantation; that while so crossing, a barge, being propelled by a small steamer, ran into the ferry boat, injuring petitioner’s husband, who, immediately after the accident, was found to have, a deep gash on his head, resulting either from being struck by the barge and killed outright or being so stunned as to drown when knocked into the bayou.

The petition sets forth that plaintiff’s deceased husband was at the time of the accident employed as a laborer on the aforesaid plantation, at wages stipulated, and was a field hand whose daily work was in the rice field of defendant’s plantation. It is then set up that the defendant carried a policy of indemnity accident insurance in the Travelers’ Indemnity Company of Hartford, Connecticut, against accidents to its employees, and that upon demand by petitioner, immediately after the accident, for compensation, the defendant referred petitioner to the insurance company, who refused to recognize petitioner’s claim; that petitioner’s husband was killed while actually engaged in' the trade, business or occupation of his employer; which was of a dangerous and hazardous nature, and especially so when petitioner’s husband was compelled to cross a bayou, as described; that the . accident was incidental to, and grew out of, the hazardous employment, and that petitioner is entitled to the wages sued for.

Defendant admits that it is .a corporation; that plaintiff’s husband was in its employ on the date mentioned; that- it furnished a small skiff to be used by its employees in crossing the bayou, which skiff was propelled, by means of a rope, across the bayou, and that plaintiff’s husband was crossing the bayou in the skiff on the morning in question, when the skiff was run down as alleged, and that the husband’s death resulted from such collision, and, finally, that petitioner’s husband was on his way to work at the time.

Defendant denies, however, that petitioner’s husband was engaged in a hazardous occupation or that his wages were such as are cláimed.

It' is finally averred by way of defense, .that the accident occurred on a public navigable stream, and that the rights and liabilities of all parties in connection therewith are matters clearly within the •admiralty jurisdiction.

There was judgment for defendant, from which plaintiff has appealed.

There is little, if any, conflict of evidence in this case, and we find that the accident happened as above set forth. The party operating the barge is not made defendant in this case, and we are of the opinion that the final defense set up in this case as to the liability, if any, arising within the admiralty jurisdiction, has no application and may be disregarded.

The Workmen’s Compensation Law of Louisiana, known as Act 20 of 1924 (as amended), .applies only to hazardous occupations specifically enumerated in Par. 2 of Sec. 1 of said Act, or to occupations determined to be hazardous by agreement' between employer and employee, or by submission to the Court at the instance of either employer or employee, the Court’s decision under such submission not to be retroactive. The alternative applications of the Act, except as to hazardous occupations specifically enumerated in Par. 2 are found in Par. 3 of Sec. 1.

Applying the law, as just noted, to the facts of this case and to the special ad- . mission that the deceased was only a field hand, employed on the plantation of the defendant at the time of the accident, and it being plain from the language of the Act that such employment is not an occupation stipulated as one of a hazardous nature, it follows as a logical deduction that plaintiff has no right of recovery, unless it be the law that the deceased must be considered to have been performing services arising out of and incident to his 'employment when he met his death.

We cannot bring ourselves to any such conclusion; but it is contended by counsel for plaintiff that defendant’s liability obtains notwithstanding the law and the facts just noted above, for the reason that the defendant carried a policy of insurance against liability arising under the Act. However, the Workmen’s Compensation Law does not provide for compulsory insurance, although under Sec. 23 thereof, it is stipulated that such a policy may redound to the benefit of the insured if it contains the agreement of the insurer to pay to the person entitled to compensation all installments that may be awarded or agreed upon, and that under such condition, such agreement shall be construed as a direct obligation by the insurer to the employee.

Another condition found in Sec. 25 of the Act is to the effect that if insurance is .carried and the employer be or becomes insolvent, or the execution upon a judgment for compensation be returned unsatisfied, then the employee or his dependents may enforce their claims against the insurer.

We, therefore, conclude that the judgment appealed from is in every respect correct and should be affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from herein be and the same is hereby affirmed at plaintiff’s costs in both courts.


text:
    No. 9883.
    Orleans Appeal.
    SUCCESSION OF ALBIN LIGHT, ALBIN LIGHT, Jr., C. H. NEAL, AND WILLIAM LIGHT v. RELIANCE HOMESTEAD ASSOCIATION, Appellant.
    (April 27, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Donations—Par. 138, 139, 140.
    All parties having an interest in the construction of ambiguous testamentary dispositions should be represented in the probate proceedings.
    2. Louisiana Digest — Donations—Par. 139, 184, 253.
    Where the testamentary heirs claim the entire succession, including stocks and-mortgage notes, under a provision of a will giving them “the money that I have left and the bonds” upon the ground that other provisions of the will indicate the intention by implication to bestow upon them the entire succession and it appears that there are legal heirs who but for the construction contended for by the testamentary heirs would be entitled to a part of the suc- . cession, a judgment rendered ex parte placing the testatmentary heirs in possession will be reversed and the cause remanded for the purpose of affording the legal heirs an opportunity to be heard.
    Appeal from Civil District Court, Hon. William H. Byrnes, Jr., Judge.
    This is a rule taken by parties put into possession of a succession estate or an ex parte judgment as universal legatees against the Reliance Homestead Association to compel them to turn over certain shares of stock. The defendant claimed that there were other heirs not represented. The rule was made absolute and defendant appealed.
    Judgment reversed and case remanded for new trial.
    James J. Landry, attorney for plaintiff in rule and appellee.
    Theodore Roehl, attorney for defendant in rule and appellant.
   WESTERFIELD, J.

Dalbin Light, Junior, William Light and Charles H. Neal were put in possession as universal legatees of the Succession of Albin Light, who died in this City on the 14th day of January, 1924, by virtue of an ex parte judgment of Division “F” of the Civil District Court. Subsequently, a rule was taken by the parties named against the Reliance Homestead Association, in which it was alleged that among the assets of the Succession were certain shares of stock in the said Homestead which movers were entitled to have transferred to them as sole heirs of decedent under the judgment of the said Civil District Court aforesaid, and that, notwithstanding due application, the said Homestead refused to make the said transfer or to recognize the said judgment. Movers prayed for an order compelling the said Homestead to recognize the said judgment and to transfer the said stock to them. The Homestead answered admitting its refusal to transfer the stock and justifying their action upon the ground that plaintiffs in rule were not the universal legatees or sole heirs of decedent; that the stock in respondent Homestead standing in the name of decedent had not been disposed of under the will of decedent and was therefore the property of decedent’s legal and not his testamentary heirs; that decedent left legal heirs who were-absentees; that no curator had been appointed to represent the said legal heirs nor were they otherwise represented or considered in the ex parte proceedings under which movers were placed in possession of decedent’s entire Succession. Upon the trial of the rule it was made absolute and the respondent Homestead Association has appealed.

The will of decedent is as follows:

“New Orleans, La., November 5, 1923. “To Mr. E. J. Morgan.
“Sir: In case of death I want you to look after my business for me until Charley Neal comes to take charge of same in case of death ship my body to C. H. Neal Clover Halifax Co. Va.
“The money that I have left and bonds I want Dalbin Light junior to have one 1 third his address is Putney "W. Va. and I want William Light to have one 1 third his address is Clover Halifax Co. Va. and I want Charley Neal to get one 1 third his address is Clover Halifax Co. Va. in case there should be a death of one 1 of these 3 three men.
“C. H. Neal of Dalbin Light Junior or William Light should die than give the 2 live men % each in case 2- or all 3 die than give the estate of C. H. Neal off springs and give Floid Neal one % of the estate in case Floid Neal should die than give it all to C. H. Neal off springs.
“I, Albin Light of New Orleans put my seal to this will the 5 day of November of our Loar, 1923.
“Albin Light
“Address Clover Halifax Co. Vo. “Witnesses:
“Edward J. Morgan
“A. B. Woodruff
“In case anything should happen notify C. H. Neal Clover Halifax Co. Va.”

It will he observed that decedent bequeaths “the money I have left and bonds” to Dalbin Light, Jr., William Light and Charley Neal. It appears that at the time of decedent’s death he owned no bonds. His entire succession, according to a statement in the petition, consisted of some cash in bank, stock in the Reliance Homestead Association and mortgage notes, the whole valued at the sum of $3,459.35.

Plaintiffs in rule contend that the will should be construed as a whole and that provisions made therein for the disposition of the Succession in the event of the death of any of the three legatees giving “the Estate to C. H. Neal off Springs and give Floid Neal one % of the Estate in case Floid Neal should die then give it all to C. H. Neals off springs”, clearly show that the testator intended to dispose of his entire Succession in their favor and that by bonds he meant stock and notes.

It is possible that the will can be so construed but by no means certain. In any event we think those interested in construing it otherwise should be heard before the question is foreclosed by a judgment disposing of the property. The legal heirs should be properly represented and the matter determined contradictorily.

For the reasons assigned, the judgment appealed from is reversed and this case remanded for further proceeding consistent with the views expressed herein.


text:
    No. 9902.
    Orleans Appeal.
    GEO. J. UNTERINER v. ADOLPHE ERNEST, ET AL., Appellants.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    The opinion in this case delivered on April 21, 1924, under No. 8606, is affirmed, and the judgment of the District Court appealed from is also affirmed.
    Appeal from Civil District Court, Hon. Mark M. Boatner, Judge.
    On the second trial there was judgment for plaintiff recognizing him as a creditor of the succession of the testatrix and of her heirs for $264.37 with interest.
    Judgment affirmed.
    Jos. H. Brewer, attorney for plaintiff and appellee.
    Emile Pomes, attorney for defendant and appellant. '■
   CLAIBORNE, J.

The facts of this case are detailed in an opinion delivered by us in this case on April 21, 1924, under the No. 8606.

The plaintiff, who is an attorney at law, had been appointed by a testatrix, attorney to settle her succession for a stated fee. The heirs of the testatrix opened her succession and accepted it through another attorney and were put in possession of all the property left by her, and refused to employ the plaintiff or pay him any fee. He sued them for a fee. They filed an exception of no cause of action, which was sustained by the District Judge. We reversed the judgment and remanded the case for trial on the merits. On the second trial there was judgment for plaintiff recognizing him as a creditor of the succession of the testatrix and of her heirs for $264.37 with interest.

Prom this judgment the heirs have appealed.

A second consideration of the facts and the law in this casé satisfy us that our original opinion is correct. The District Judge rendered judgment in accordance with that opinion and it is therefore affirmed.


author: WESTERFIELD,

text:
    No. 9961.
    Orleans Appeal.
    TAFT MERCANTILE COMPANY v. L. A. BLOUIN COMPANY, LTD., Appellant.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 222, 238, 361.
    Where the interest of plaintiff has been divested by seizure or other means, a party appealing from a judgment on a rule taken in the same proceeding to which rule plaintiff was not a party need not cause citation of appeal to be served on plaintiff.
    2. Louisiana Digst — Appeal—Par. 320.
    Where no appeal was taken from a judgment refusing to dismiss an appeal upon motion filed in the trial court upon the ground that the bond was deficient, the question of the sufficiency of the bond will not be considered by the appellate court.
    Appeal from the Twenty-fourth Judicial District Court, Parish of St. Charles, Hon. L. Robert Rivarde, Judge.
    Motion to Dismiss Appeal Denied.
    Robert J. Perkins, attorney for plaintiff and appellee.
    C. A. Buchler, attorney for defendant and appellant.
   WESTERFIELD,

J. The motion to dismiss the appeal is based upon the contention that the Taft Mercantile Co', was not served with citation of appeal and upon the further ground that the amount of the bond was insufficient. The appeal was taken by-petition and if the Taft Mercantile Company was interested in maintaining the judgment appealed from it should have been cited. But the appeal is taken from a judgment on a rule to which the Taft Mercantile Company was not a party, though the original plaintiff in these proceedings. The plaintiff in rule, an attorney at law, Mr. Robert J. Perkins, filed a motion herein in his own name in which the court was asked to order the Clerk of Court to pay to mover a certain amount of money alleged to be due him out of certain funds then in the possession of the Clerk. How the funds originated and why the plaintiff in the original proceeds was not made a party to the rule involve useless discussion of complicated litigation. We shall only observe that the interest of plaintiff in this suit had been seized and sold by creditors under writs of fieri facias and completely divested at the time this rule was taken and judgment thereon rendered.

Consequently, the Taft Mercantile Company was without interest in the judgment on the rule from which this appeal was taken and there was no necessity to serve it with citation on appeal. Katz & Barnett vs. Sorsby, 34 La. Ann. 590.

As to the second ground urged for dismissal, the insufficiency of-the appeal bond, this contention formed the basis of a motion to dismiss filed in the lower court and no appeal has been taken from the judgment denying the motion to dismiss. Under the circumstances, we will not review the judgment.

Our conclusion is that the motion to dismiss must be and it is denied.