text:
    No. 10,080
    Orleans
    APPLE GROWERS ASSOCIATION v. KOHLMAN BROS. AND SUGARMAN
    (February 13, 1928. Opinion and Decree.)
    (March 26, 1928. Rehearing Refused.)
    (May 8, 1928. Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court)

    1.Louisiana Digest — Obligations—Par. 78, 79, 101; Sales — Par. 52.
    A shipment from Oregon in December of ripe apples of good quality with no decay and no blemishes conforms to an order for “car extra fancy Ortleys * * * ship this car Omaha cold storage through rate to New Orleans,” although a few apples are dead ripe.
    2. Louisiana Digest — Brokers—Par. '8, 9, 12.
    A broker is for some purposes treated as the agent of both parties. But primarily he is deemed merely the agent of the party by whom he is originally employed, and he becomes the agent of the other party only when the bargain or bontract is definitely settled as to its terms by the principals.
    3. Louisiana Digest — Brokers—Par. 27; Mandate — Par. 61, 63.
    Private instructions by . a principal to his agent do not affect third persons dealing with the agent in ignorance of the instructions.
    Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by Apple Growers Association against Kohlman Brothers and Sugarman.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Weiss, Yarrut and Stich, of New Orleans, attorneys for plaintiff, appellant.
    Scott E. Beer, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff domiciled in Hood River, Oregon, claims of the defendant the price of apples sold.

It alleged that it received from R. E. Mayer, fruit and produce broker in New Orleans, the following telegram:

“New Orleans, Nov. 15th, 1919.
“Apple Growers Association.
“Hood River, Oregon.
“Book Kohlman car extra fancy Ortleys three dollars. Want sizes mostly sixty-four and eighty-eights, balance one twenty-fives larger.
“Ship this caT Omaha cold storage, Omaha, Nebraska, through rate to New Orleans to apply storage in transit. Wire number boxes each size before car is shipped. Answer.
“Signed R. P. Mayer."

■ The number of boxes and the sizes were wired on November 18 and 756 boxes of apples were shipped on same day in oar, Pacific 4821, from Odell, sight draft, bill of lading attached with invoice showing price of apples to be $2268.00; that said car was delivered to and received and unloaded by, the consignee, the Omaha Cold Storage Co. at Omaha; that thereafter on December 12, 1919, plaintiff received from R. F. Mayer the following telegram:

“New Orleans, La., 12 Dec., 1919.
"Apple Growers Assn.,
“Hood River, Oregon.
“Kohlman, Pacific 4821, Omaha Cold Storage unloaded by mistake. Government inspection report reads. Inspected tenth, large sizes, ripe, smaller ripe to firm, no decay, boxes set aside marked by cold storage frozen when unloaded, shows slight browning mushy conditions flesh or deep browning underneath bruise indicating freezing injury.
“Practically no other blemishes. Wanted store now, ship Mexico later. Account condition cannot accept. Make other disposition.
"Signed R. P. Mayer.”

To which the plaintiff, the Apple Growers Association, answered on December 13th:

“Apples perfect condition when shipped. Ortleys naturally ripe in December, but this no indication of decay. Last year we shipped Ortleys that showed ripe in December to New York in March. These were sold for shipping point not delivered, consequently cannot' assume , Condition caused by frost. Cannot consider rejection, Pacific 4821.
“Signed C. W. McCullagh.”

On December 15, 1919, Mayer wired to plaintiff:

“Blue 13th received Kohlman claims Pacific 4821 ripe when shipped and you knowing same was for storage Omaha had no right to ship this condition. Positively refuses to accept account this condition.
“Signed R. P. Mayer.”

To which plaintiff answered on December 16th:

“R. P. Mayer:
“Stock was in perfect condition when shipped, no riper than Ortleys are at this season of year. We handle more Ortleys than all others combined and know positively that their condition when shipped would permit reasonable storage and refreshment later. We are still holding in storage here number cars Ortleys for ourselves and others, and while ripe, we are not alarmed as this variety does not seem to advance in ripeness between now and March first. Treatment Kohlman car received in transit is something over which we have no control and we decline to permit rejection or assume damage by frost. Storage company in unloading acted as Kohlman’s agent. To show our fairness will allow quarter box, not because we think Kohlman entitled to anything but to assist in matter. Have him pay draft, drawing him back for allowance.
“Signed C. W. McCullagh.”

To which defendant answered on same day:

“Blue 16th received. Kohlman will not accept Pacific 4821 account ripeness. No question price. Bought for storage. Reshipped Mexico later. Cannot reship account ripeness. No demand this variety here. Claim you had no right ship car on account fruit showing ripeness. Storage error unloading car.
“Signed R. P. Mayer.”

On December 17th plaintiff wired to Mayer:

“To further show our fairness, if Kohl-man wants another car Ortleys shipped as soon as present embargo raised, will ship direct to New Orleans or for storage Omaha, and will take car now Omaha off his hands, provided he agrees pay unloading and loading charges, storage in transit and other charges Omaha storage company. If this not satisfactory will refuse accept rejection, and place matter our attorneys’ hands. Always willing do what’s right but won’t stand for abitrariness. Peel we know considerably more about Ortleys than Omaha inspector and know positively their condition only natural one for this season year. Advise promptly, Kohlman’s decision.
“Signed: Apple Growers Assn.”

Mayer answered December 17, 1919:

“Wire received. Kohlman accepts your proposition. Will take another car Ortleys same grade and sizes. Fruit must be firm not showing ripeness. Want store, ship Mexico about 60 days. Shipping instruction by mail. Make other disposition Pacific 4821 not Omaha storage.
“Signed: R. F. Mayer.”

The Apple Growers Association answered December 19th:

“R. F. Mayer:
“Answering, Kohlman understands Ortleys especially larger sizes cannot help but show greater maturity than if shipped early.
“These all from cold storage and will show ripeness, but in our opinion from experience covering several years handling larger portion of this variety, are in condition usual this season year. Really believe should be shipped Mexico January. Will do best size but Kohlman understands will not be exactly as other car, but will be Hundred twenty-fives larger.”
“Signed: C. W. McCullagh.”

R. F. Mayer answered:

“December 23rd.
“Apple Growers Assn.:
“Refer your night letter 19th. On account Ortleys showing ripeness Kohlman’s Mexico connection advises will not accept. Afraid fruit will not carry and arrive sound condition. Think advisable cancel this car, unless you will guarantee fruit arrive Mexico sound shape.
“Signed R. F. Mayer.”

Apple Growers Assn, wired:

“December 27th.
“R. F. Mayer:
“Your night letter 23rd places matter in different light. Under no circumstances' would we have shipped this car at time it was shipped knowing condition Eastern markets. Have been endeavoring make every effort show our fairness, but we absolutely decline take car now Omaha off Kohlman’s hands and take loss ourselves. Either Kohlman accepts car now' Omaha or takes another car prompt shipment to replace it as per our last agreement or will sell car at best market for Kohlman’s account.
“Perfectly willing submit this matter to any fair minded arbitration. Stock now Omaha not any riper than is usual at time shipped. Advise decision immediately.
“Signed: Apple Growers Assn.”

Mayer answered December 29, 1919:

“Kohlman states positively will not accept another car Ortleys on account ripeness as this car will have to be shipped Mexico later. Cannot store on account ripeness. Use your own judgment handling this deal.
“Signed: R. F. Mayer.”

Apple Growers Assn, wired December 30th:

“R. F. Mayer:
“Again referring Kohlman’s Ortleys. In your night letter November 15th nothing was said about reshipment to Mexico, but that through rate to New Orleans would apply, storage in transit car was shipped November 18th but you did not wire until December 12'th reporting that car was unloaded and inspection made. We dislike extremely to resort to legal measures to adjust matter. This is final notice that matter will be placed with Produce Reporter Co. unless Kohlman decides to be fair. Please advise if wires-you have sent are your own decision or Kohlman’s instructions.
“Signed: Apple Growers Assn.”

R. F. Mayer answered December 31st:

“Apple Growers Assn:
“Night letter 30th received. Kohlman states wants be fair but on account of fruit showing ripeness could not accept, another car Ortleys on account apples having to be shipped Mexico next 60 days. This is their final decision. Wishing you. a happy and prosperous new year.
“Signed: R. F. Mayer.”

Thereupon the plaintiff caused the apples to be sold at auction. The sale realized $1855.20 or a difference of only $413.30 from the original price of sale.

The freight amounted to___________________$579.07
Auction charges ______________________________________ 4.50
The commission ......... 92.76
Making a total of____________________________$676.33
leaving a balance of $1178.87.

The defendant answered that R. F. Mayer was the agent of the plaintiff and as such effect the sale to the defendant. “F. O. B., Hood River, Oregon:” That the telegrams above passed between plaintiff and Mayer and are outside of their knowledge; that the plaintiff did not ship the apples ordered by defendants but shipped apples which were in a ripe condition; that the order called for apples for cold storage at Omaha; that ripe apples are not the kind to be shipped for storage; and that the car was unloaded by the Omaha Cold Storage Co. contrary to instructions. The defendants further alleged that they had sold the apples at a profit of 30 cents a box, or $226.80, which they (Claim in reconvention from plaintiff.

There was judgment rejecting the demands of both the plaintiff and the defendant.

The plaintiff has appealed.

There are only two questions to be passed on by the court. The first is, whose agent was R. F. Mayer, in this transaction, and the second, did the apples shipped by plaintiff fail to comply with the order given to it.

The plaintiff has nothing to do with the unloading of the .apples at Omaha, as it did not give orders so to do. The apples were consigned according to order to “Omaha Cold Storage,” and were delivered to the carrier f. o. b. Plaintiff’s duties ended there, and cannot be charged with what was thereafter done by other parties without their instructions.

The learned trial judge based his judgment upon the assumption that R. F. Mayer was “representative” or agent of the plaintiff. We cannot agree with him. Mayer was a “broker” by occupation, doing business in New Orleans. He explained his connection with this sale in the following manner:

“Q. Mr. Mayer, how did you start in effecting this transaction?
“A. It is customary for the brokers to go around daily and call on their trade and inquire if they want anything. About that time, Kohlman Bros, and Sugarman informed me that they wanted a car of apples of this variety. After they told me what they wanted, I wired my connection to the Apple Growers’ Association.
“Q. What do you mean by your connection?
“A. I represented them as their agent here.”

It thus appears that Mayer was a “broker,” that the defendants employed him to procure for them a car of apples, that Mayer was the “broker” of the plaintiff also, and that he transmitted to it the order for the apples. The law in such a case is that:

“A broker is for some purposes treated as the. agent of both parties. But primarily he is deemed merely the agent of the party by whom he is originally employed; and he becomes the agent of the other party, only when the bargain or contract is definitively settled, as to its terms between the principals.” Story on Agency, S. 31 Woods, Slayback & Co. vs. Rocchi, 32 La. Ann. 210; C. C. 3017; So. Cotton Oil Co. vs. Shreveport Cotton Oil Co., 111 La. 393, 35 So. 610; 19 Cyc. 191; Pfeiffer & Co. vs. Mayer & Co., 3 La. App. 289.
“Primarily a broker employed to do a particular thing is the agent of the party who first employs him, and he cannot without the full and free consent of both parties be the agent of both throughout the transaction; but in so far as he acts strictly as a middleman to bring the parties together or. to execute the contract after the parties have agreed on the terms, such as to effect a purchase or sale of property, he is the common agent of both parties.” 9 C. X 518 S. 20.

In the case of Rocchi vs. Schwabacher, 33 A. 136, the plaintiff negotiated with the broker, Schexnaider, for the purchase of a quantity of lard from Schwabacher. The lard was later found to be of such inferior quality as to be unfit for cooking purposes. Rocchi sued for return of part of the purchase price paid to him.

The Court said:

“* * * The record shows conclusively to our minds that on these purchases he (Schexnaider) was the duly accredited broker or agent of plaintiff, who is therefore bound by the acts of Schexnaider in the premises.”

The repeated correspondence, which we have reproduced hereinabove, shows that the Apple Growers Association was acting for itself throughout in the transaction.

All the wires were signed by its manager. While the other party, Kohlman Brothers, appear nowhere, eo nominee; all the wires are addressed to “R. F. Mayer,” and all are answered by R. F. Mayer, not in the name of the defendants but individually. The defendants’ name appears nowhere in the body of the wires.

Mayer did not cease to be a broker because he represented the plaintiff in New Orleans in seeking a purchaser for his apples. He did not thereby become the agent of the plaintiff, in the sense in which the word is usually employed.

He had no general power to sell plaintiff’s apples. His only authority was to secure a purchaser. Mayer served as a witness for the defendants and testified in their favor.

“An agent is one who represents a principal to the exclusion of all others with full powers. A broker sells his services to any one who chooses to employ him to procure a seller or a purchaser.” 9 C. J. 510 S. 10.

C. N. McCullagh, sales manager for the plaintiff, testified that the order (for the apples) was received through R. F. Mayer, a broker in New Orleans, who represented the association as a broker, and in the sale of fruit, acted as agent of the purchasers as well as '(of) the association.

It therefore follows that the only contract made by plaintiff with defendants was that made when plaintiff accepted the order dated November 15th reading: “Book Kohlman car extra fancy Ortleys, $3 want sizes mostly 64 and 88, balance 125 larger. Ship this car Omaha Cold Storage, Omaha, Nebraska, through rate to New Orleans to apply storage in transit.”

But B. F. Mayer testifies:

“When I received this order from defendants, they informed me that this particular car was to be sent to the Omaha Cold Storage Company and then reshipped later to Mexico.”

There is no evidence that this information was communicated to the plaintiff.

“Secret or private instructions or limitations in the general authority of an agent, however binding they may be as between the principal and his agent, can have no effect on a third person who deals with the agent in good faith, in ignorance of the instructions or limitations and in reliance on the apparent authority with which the principal has clothed him.” 2 C. X 566; Farrar vs. Duncan, 29 A. 126; Chaffe vs. Barataria Canning Co., 113 La. 215, 36 So. 943 (229).

The wires reproduced above demon-state not only that Mayer was employed by the defendants as their representative for the (purchase of the apples, but they also indicate the reasons advanced by the defendants for refusing to accept the car of apples. They are three in number: 1st. that the apples were “ripe”; 2nd. that they were to be kept in cold storage to be shipped to Mexico, and 3rd. that their condition of maturity was such that they could not stand the trip there.

As to the maturity of the apples:

C. W. McCullagh, sales manager for the plaintiff from April,, 1917, to April, 1921, but now no longer in their employ, had personal knowledge of the order of defendants for apples 'dated November 15, 1919; he did not see the apples shipped but he saw apples taken from the same cold storage rooms between the time of this shipment and January 1, 1920, and they were in excellent condition; apple grades are established by the Legislature of Oregon, and an “extra fancy apple” is defined as mature free from bruises, etc.; this would describe an “extra fancy Ortley,” these apples are harvested in October or early in November; the larger sizes are more mature in November than the smaller sizes; the Ortley apple maintains its life well into March and April of the following season; although showing a ripening condition in November, this apple is frequently held and sold to advantage as late as the following March; the apples shipped were mature and while the very large sizes were inclined to ripeness, they were not dead ripe, but were fit for reasonable storage of from 30 to 60 days after arrival and reshipment from New Orleans, the point for which they were purchased; the condition of the apples was such as to make them fit for the purpose sold and intended; the plaintiff handles from a million to a million and a half boxes yearly; in November large size Ortley apples incline slightly to ripeness, small sizes from firm to hard green; extra fancy Ortley apples of the sizes specified in the order could not have been procured less ripe than those shipped; the size of the apple indicates the number of apples in the box, size 88 means 88 apples in the box, all boxes being of the same standard size; when cold storage is provided in a contract the condition of the apple to be shipped depends upon the variety; Ortleys may be ripe but would still be crisp and while ready for fairly prompt consumption; would be fit for a reasonable storage life of from 30 to 60 days, and still be fit for movement to such markets as New Orleans; an apple will ripen, but refrigeration retards the ripeness to a certain extent, it does not wholly stop it, a contract calling for apples for storage is properly filled by the shipment of such ajpples as were shipped in the carload in question; handling of large size apples is bound to bruise some to a certain extent; it would have been impossible to have selected similar sizes of apples that were any more firm or showed less ripeness, than the stock in question; the witness has had many years of experience in the shipping business and had the apples in question been in such a condition as not to hold a reasonable time in storage, he would have declined the order.

Wm. Metcalf, resided in Hood River, Oregon; is warehouse foreman of Kelly Brothers; in November, 1919, he was employed by the (plaintiff association; he was inspector for six years from 1914 to 1920; he has packed and inspected lots of apples for ten years; he has no recollection of the particular car in question but all the inspections' at that 'time were made by him; the apples of that year were mature and well colored; lie made the inspection for the plaintiff; the apples were mature, too hard for immediate consumption and in firm condition for storage; the term “hard” means mature, too hard for immediate consumption, but prime condition for storage; that is the usual . condition of apples shipped in November, apples less ripe than those shipped could not have been procured to fill the order; there are two inspections of apples, one by the local inspector when they arrive at the warehouse, and the other when they are loaded into the cars; apples to be shipped for cold storage and for reshipment should be mature, but not showing any degree of ripeness; they should be ripe but not overripe for the purpose; if apples arrive ripe, it is not conclusive that they were shipped ripe; it would depend upon the length of transit, temperature and refrigeration; the apples could not have been ripe at that time of the year; they were mature but not ripe; it would have been positively out of the question to have shipped apples at that time of the year from that section otherwise than fit for storage.

The defendants, on their behalf, examined the following named witnesses;

R. P. Mayer testified that he is a broker, and not a commission merchant; that he did not claim to be an expert in the apple business; though he had been in the produce trade for 30 years; when apples are purchased in Oregon and are shipped cold storage in transit in the opinion of the trade, the apples should be prime apples and not ripe, and he would reject the consignment; the car was shipped on November 18, 1919, arrived in Omaha on December 1st, unloaded there and iput in cold storage on same day by the Omaha Cold Storage Company, and on December 10th the car was inspected by a government inspector; the trade as a rule abides by the government inspection, he did not think it was necessary to inform plaintiff that the defendants intended to ship the apples to Mexico, because it had no bearing upon the quality to be shipped; apples are bought in season and put in storage and kept for four or six months and sometimes for a year; he knows nothing of the condition of apples shipped from Omaha; the plaintiff is supposed to be one of the best shippers in the country; the Ortley apple is of the yellow variety; this market usually buys only the red variety; when a car is intended for long storage the apple is put ' in the car green; his objection to the apples was based on the report of the government inspector; he did not notify the plaintiff that the apples were intended for immediate consumption or for export six months later to Mexico, a warm climate, because it would have no bearing upon the condition of the apples to be shipped, it would be the same; the real reason for refusing the apples was because they were too ripe for shipment to Mexico; it is a bad bargain to buy Ortley apples for this market as there are perhaps not more than two cars sold here in a season.

S. J. Drapekin testified that 12 days refrigeration will not ripen fruit; he is manager of a cold storage company; refrigeration in winter keeps the aipple in its natural condition; keeps it from freezing; if the weather is cold enough the apples may freeze in transit; apples stored in transit are sometimes shipped the next day, or six months or a year later, at the salesman’s option; shipment from Oregon to New Orleans stored in transit at Omaha through rates to New Orleans means that the apples are stored in Omaha and after-wards shipped to New Orleans and the original rate from Oregon to New Orleans would apply, plus the transit charges in Omaha; but they would have to complete the trip to New Orleans in order to get the through rate to New Orleans; it means that the apples are destined by the shipper for New Orleans. .

John Meyer has been in the fruit business for 30 years; he is not an expert regarding apple conditions, but he has a fair knowledge of them; he practically corroborates Mayer as to the conditions of apples shipped from Oregon and stored at Omaha, and the effect of refrigeration; the government inspector’s report is. usually adopted to back your own inspection; Ortley apples are usually sold here for consumption; if intended for Mexico they should be green; if apples were only ripe but not dead ripe .they could remain in cold storage several months; Ortley apples ripen in refrigeration; they would do so in the course of three weeks, because they are a tender soft apple, they would not if green; storage in transit means that you have the privilege of storing that car in another state and the privilege of reloading that car and turn it to its final destination, say New Orleans with a small additional charge; that shipment is understood to be destined to New Orleans, though he might divert it to Mexico; if apples are bought in the regular course of the season they are not supposed to be green; an order for a, car of extra fancy Ortleys mostly 64 to 120 would mean merchantable apples in good, firm, sound condition and not green to mature; if the apples had been ripe, but not dead ripe, they could have been sold in New Orleans.

Joseph Chalona, also a wholesale fruit dealer, testified that if apples are shipped on November 18th from Oregon and arrive in Omaha on December 1st and are there and then inspected, they should not change if there was not a defective equipment and the car was properly refrigerated; it is customary to comply with the government inspector’s report; if apples were improperly refrigerated they would mature and deteriorate and show decay; if apples were shipped from Oregon in November and arrived in New Orleans 30 days after, in a ripe condition they could be sold, provided they were not dead ripe and they were extra fancy in grade; it would be the same if they could stand storage for 2 or 3 months; according to the inspector’s report they could not stand storage for that length of time because it shows they were ripe, and dead ripe and unfit for storage; the Ortley apple is not our longest keeping apple, it is a fairly good keeping apple but does not compare with some of the other varieties.

Charles Sugarman, one of the defendants, testified' that his firm had been dealing in apples in New Orleans for 28 years; when they received from Mr. Galinsky, who was inspecting apples for them, that the apples showed ripeness he instructed him to have the apples inspected by the government inspector; and after they received the latter’s report they notified the shipper’s agent here that on account of the ripeness of the fruit they could not accept them; he bought these apples for shipment to a customer in Mexico, whose order he showed Mr. Mayer; the Omaha refrigerator people said they would not inspect apples because they knew nothing about them as far as quality and freeze were concerned; their order called for a firm, crisp matured apple; the Ortley apple is usually bought in October or November and is kept until spring.

The government inspector’s report dated December 10, 1919, reads as follows:

“Color and maturity:
“Color ranges from bright yellow to greenish, sizes 100 and larger mostly ripe, few dead ripe, beginning to mellow; sizes smaller than 100 ripe to firm. Decay none apparent. About 1/3 of load set to one side and marked ‘frozen’ by Omaha Cold Storage Warehouse shows slight brownish or mushy condition of flesh or deep browning underneath bruises (outside skin of bruise tough and leathery bearing resemblances of having been frozen. This condition usually confined to apples touching one side or end of box, extending mostly one or two layers of apples into box. Boxes in balance stock shows little or no indications of freezing injury. Practically no other blemishes noted. Remarks: Stock apparently free from decay and is of good quality. As noted above sizes 100 and larger ripe to few dead ripe and smaller sizes ripe to firm. Stated by Omaha Cold Storage that lot inspected removed from car P. F. E. 4821 and placed in their storage warehouse on December 1, 1919.”

The defendants’ inspector, “Gilinski”’ at Omaha, reported as follows:

“Car partly frozen apples thawed out condition ripe apples throughout boxes, packed good would not advise for long keeping, small apples firm.”

The defense is based entirely upon the reports of the two inspectors, one for the defendants themselves and the other for the government. They both report that the apples- were partly frozen and thawed. The apples were sold f. o. b., Hood River.

The testimony of plaintiff’s two witnesses establishes that at the date of delivery to the carrier the apples were in good condition. The purchasers assumed all the risks of transportation and cannot hold the plaintiff liable if the apples froze owing to the weather or during the possession of the carrier.

As to the other parts of the reports, the worse that can be said of them is that the apples were “mostly ripe, few dead ripe, beginning to mellow; no decay apparent, no other blemishes noted; stock of good quality”. It must be noted that outside of these experts no single witness for the defendants saw the apples. Their testimony is based exclusively upon the two reports of the experts. Neither did the trial judge hear plaintiff’s witnesses.

In our appreciation of the testimony there is nothing in their testimony sufficient to defeat plaintiff’s claim. The order of defendants is contained in the wire dated November 15th. It reads in part as follows : Book Kohlman car extra fancy Ortleys three dollars. Want sizes mostly 64 and 88 balance 125 larger, etc.”

There is no complaint that the plaintiff did not ship “extra fancy Ortleys”. The complaint is that the apples were ripe or toq ripe, while the order implied green applies. The only testimony that the apples were ripe is that of the two inspectors. The mature condition of the apples might have existed at Omaha at the time of the inspection brought about by the freeze and other possible causes. Or the inspectors may have had a different appreciation of the meaning of the words “ripe” or “mature.” The plaintiff testified that the Legislature of Oregon had defined the meaning of an “extra fancy' apple” as one matured, clean, smooth, hand picked, well formed.

Plaintiff testified that he .had delivered such an apple. The inspector of his company corroborated this testimony. The order did not define the qualities required in the order given. The condition of the apples at Omaha might have been quite different from their condition when delivered to the carrier, 22 days before, owing to the freeze. The defendants resist on the ground that the order for storage indicated that they were there to remain for a long time. It is strange that the apples should have to remain a long time in Omaha if they were sold to Mexico as defendant testifies.

The plaintiff testified that they could have remained in cold storage for 30 or 60 days or perhaps for a longer time, and the evidence is that refrigeration arrests maturity. The evidence is also that those arpples in the condition they were in according to the report of the inspectors would have found a ready market in New Orleans. The evidence also is that according to the terms of the routing “Omaha— New Orleans” — one would have understood that the apples were to be shipped to New Orleans on leaving Omaha even although the owner might have diverted them elsewhere. The testimony of Mayer is influenced by his relations to the defendants. The testimony of Meyer, and of Chalona is that of witnesses in the same line of business and is not entitled to greater weight than that of the defendants themselves. 1 H. D. 559 No. 14; Howe vs. Manning’s Executor, 13 La. 413; Beers vs. Board of Health, 35 La. Ann. 1132; Hart vs. Dreyfous, 42 La. Ann. 631, 7 So. 781; Succession of McNamara, 48 La. Ann. 45, 18 So. 908.

There is no evidence that the plaintiff knew of the customs they speak of.

They say that according to the inspectors’ reports the defendants were justified in refusing to accept the apples. But the case must not be decided upon these reports alone. The whole evidence must be considered and the case decided accordingly. According to that light we are of the opinion that the defendants were not justified in refusing to accept the apples.

If they wanted green apples they should have ordered them such; if they wanted them for shipment to Mexico they should have so stated.

. The burden was upon the defendants to prove their defense, and they have failed.

The fact that a few of the apples were dead ripe did not certainly justify the rejection of 756 boxes.

The evidence is overwhelming that fruit does not mature appreciably in refrigeration and that it will keep in the same condition of maturity for 30 or 60 days. Therefore the apples delivered by plaintiff to the carrier would have kept ripe and not overripe for that length of time and for shipment to New Orleans and even Mexico or elsewhere.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendants, Kohl-man Brothers and Sugarman and Sigmund Kohlman and Charles Sugarman, be condemned in solido to pay to the plaintiff, the Apple Growers’ Association, the sum of one thousand and eighty-nine 13-100 dollars with five per cent per annum interest from November 18, 1919, till paid and all costs of suit.


source: Caselaw Access Project

author: CLAIBORNE, J. JONES, J.

license: Public Domain

text:
    No. 10,918
    Orleans
    POWELL MOTOR CO. v. A CHRISTINA AND BROS.
    (January 2, 1928. Opinion and Decree on motion to Dismiss.)
    (April 9, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    ON MOTION TO DISMISS.
    1. Louisiana Digest — Appeal—Par. 326,516, 526.
    A motion to dismiss an appeal on the ground that the amount of the bond was not fixed by the court, as required by Article C. P. 578 must be made within three days following the return ' day of the appeal.
    2. Louisiana Digest — Appeal—Par. 20, 530. In case of doubt appeal will be maintained.
    ON THE MERITS.
    3. Louisiana Digest — Conflict of Laws— Par. 1, 4; Sales — Par. 324, 333.
    The unpaid vendor of an automobile in Mississippi, where title remains in seller with right to repossess the car is entitled to recover as against a pledgee who has not shown due care in making loan on car.
    Appeal from Twenty-fourth Judicial District Court for the Parish of Jefferson. Hon. L. Robert' Rivarde, Judge.
    Action by Powell Motor Company against A. Christina and Bros.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. O. Hart, of New Orleans, attorney for plaintiff, appellee.
    John E’. Pleury, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit to be recognized as the owner of an automobile.

The plaintiffs, of Mississippi, alleged that on November 15, 1922, they sold to Pat Murphy, alias Smith, alias Pippin, a Ford touring car for the price of $519.55, for which the said Murphy gave plaintiffs a check on the Jefferson County Bank of Fayette, Mississippi, which was dishonored, N. S. F.; that under the laws of Mississippi no title passed to the said ’Murphy to said automobile; that said automobile is now in the possession of defendants who refuse to deliver it to plaintiffs. The plaintiffs pray that “there be judgment in their favor decreeing them to be the owners of said automobile and accessories, and ordering same delivered to them.”

The defendants admitted that the automobile was in possession of S. T. Christina, one of the members of the defendant firm; who refused to deliver it to plaintiffs; they denied all the other allegations and averred that on November 20, 1922, they loaned $300 to Pat Murphy who pawned to them fhe automobile claimed; they pray that plaintiffs’ suit be dismissed or that they be condemned to reimburse to them the amount of the loan, $300.

There was judgment in favor of plaintiffs “decreeing the said Powell Motor Co. to be the owners of the automobile and accessories, commanding and directing the sheriff of the Parish of Jefferson to return to the said Powell Motor Co., plaintiff herein, the said Ford automobile heretofore. sequestered.”

From this judgment the defendants obtained the following order of appeal:

It is ordered by the court that movers herein, A. Christina and Bros., be granted a suspensive appeal herein, returnable to the Honorable the Court of Appeal for the Parish of Orleans on the 7th day of March, 1927, upon furnishing bond with good and solvent security in accordance with law.”

Thereupon the defendants furnished bond in the sum of eight hundred dollars and filed the transcript in this court on March 7, 1927.

In this court plaintiffs and appellees, on November 16, 1927, moved to dismiss the appeal upon the ground:

“That the judgment by the District Court not being a moneyed judgment, the amount of the bond should have been fixed by the court and this not having been done the appeal should be dismissed for want of a legal bond.”

The answer of the appellants is that this motion should have heen made within three days of the return day of the appeal.

The general rule is that a motion to dismiss an appeal for informalities or irregularities in the order of appeal, or in the appeal bond, and which are not essential or jurisdictional, and which do not strike at the foundation of the right of appeal, must be filed within three days after the return day. C. P. 886-589 591; 7 N. S. 271; Murrison vs. Seiler & Co., 22 La. Ann. 327; Mutual Life Ins. Co. vs. Houchins, 52 La. Ann. 1137, 27 So. 657; Walker vs. Sauvinet, 27 La. Ann. 314; Chaffraix & Agar vs. Packard, 27 La. Ann. 173; Monteleone vs. National Union Fire Ins. Co., 128 La. 425, 54 So. 929; Bradshaw vs. Knoll, 132 La. 829, 61 So. 839; Schmitt vs. Drouett & Rabasse, 42 La. Ann. 716, 7 So. 746; Black vs. Mayo, 42 La. Ann. 637, 8 So. 52; Francis vs. Lavine, 26 La. Ann. 311; State vs. Simpson, 122 La. 309, 47 So. 622; State vs. Simpson, 122 La. 313, 47 So. 622; Naghten vs. Wife, 48 La. Ann. 799.

This rule has been applied to an informality in the order of appeal. Succession of Segond, 2 La. Ann. 138; Webb vs. Keller, 39 La. Ann. 55, 1 So. 423; State of Louisiana vs. Callac, 45 La. Ann. 27, 12 So. 119; Coreil vs. Town of Welsh, 120 La. 558, 45 So. 438; State vs. Simpson, 122 La. 313, 47 So. 622; State vs. Simpson, 122 La. 313, 47 So. 622.

Or to the want of an appeal bond. Temple vs. Marshall & James & Sheriff, 11 La. Ann. 613; 12 Ct. App. 107, 109; Hall vs. Nevill, 3 La. Ann. 326; State of Louisiana vs. Callac, 45 La. Ann. 27, 12 So. 119; Coreil vs. Town of Welsh, 120 La. 558, 45 So. 438; Webb vs. Keller, 39 La. Ann. 55, 1 So. 423; State vs. Simpson, 122 La. 312, 47 So. 622; 13 Ct. App. 137; 8 La. Dig., p. 65; S. 526 Tessier Dig. 18; Succession of Charmbury, 34 La. Ann. 21; or that the bond was not such as was required by law. 34 A. 21 (25).

"The failure of appellant to give the kind of bond required (by the order) to sustain the only appeal to which he was entitled is a matter of which the appellee should have complained within the three days following the filing of the transcript.” State" vs. Simpson, 122 La. 312, 47 So. 622.

A distinction must be made between the cases where the appeals were dismissed upon the motion of appellees filed within the sacramental three days, and cases where such motions were made after the three days. For there are many cases where the appeals must be dismissed on grounds urged in proper time, and where it cannot be dismissed on the same grounds urged after the time fixed by law. The present cases is one of the latter cases. In none of the cases quoted by the appellee does it appear that the motions to dismiss were made after the three days.

While it does not appear it must be presumed that in all the cases where the appeal was dismissed the motions were made in due time.

It cannot be said that the appellant had no order of appeal, for the order is there. All that can be said, is that the order contains an error or an omission in not fixing the amount of the bond. That error or omission is protected by the prescription of three days in accordance with the authorities quoted above.

It is also protected by Article C. P. 898, which provides that no appeal shall be dismissed for any error in the order of appeal when it shall not appear that such error was imputable to the appellant.

Nor can it be said that the appellant has furnished no bond, for a bond of eight hundred dollars properly signed is in the transcript.

Appellee’s motion itself prays for dismissal “for want of a legal bond.”

All that can be said is that the bond is not for an amount fixed by the court.

That also is an error or an omission covered by the same authorities and the prescription of three days. The appellee may waive the necessity of a legal bond and he may be presumed to have done so when he fails to object within three days to the one filed by appellant. 12 Orl. App. 107, on rehearing.

The object of the three days’ prescription may be to prevent the appellee from waiting one year after the judgment has been rendered before springing a motion to dismiss and thus deprive the appellant of the benefit of appeal. C. P. 593.

The tendency is to do away with the technicalities by which parties lose their appeals. Witness the amendment to C. P. 898 in 1870 and Act 112 of 1916.

The right of appeal is favored.

“When the ground for dismissal is doubtful the appeal will be maintained.” 1 La. Dig., p. 548, S. 530.

Motion to dismiss denied.

ON THE MERITS.

JONES, J.

On the afternoon of November 15, 1922, after banking hours, the plaintiff sold and delivered in Vicksburg, Mississippi, a Ford automobile, with, accessories, for the price and sum of five hundred nineteen and 55-100 ($519.55) dollars, to a man representing himself as Pat Murphy of Red Lick, Mississippi, a small town near Fayette, Mississippi. Murphy said he was a road contractor in Claiborne County, Mississippi; was going to Fayette that night and would return to Vicksburg in a day or two for further equipment. In payment for the automobile, Pat Murphy gave the plaintiff a check drawn on the Jefferson County Bank, of Fayette, Mississippi. B.efore plaintiff accepted check, Murphy exhibited his bank book which showed apparently sufficient deposits in Fayette bank to cover check. When this check was presented the next morning to the bank on which it was drawn, payment was refused, for want of funds to the credit of the drawer.

In the meantime, Pat Murphy had left Vicksburg with the automobile. Upon learning that the check was not good, the plaintiff notified the police department of Vicksburg, and the sheriff of Warren County, Mississippi, in which Vicksburg is located, asking them to take the matter up at once with surrounding localities, in an endeavor to locate Murphy. Police reported he had previously registered under name of Smith at a Vicksburg hotel. The plaintiff also made every effort to locate Murphy and the automobile, sending out circulars giving a description of Murphy and the automobile. In July, 1923, the plaintiff received a letter from Murphy, who was then in jail at Jackson, Miss. A representative of the plaintiff company went to see Murphy, and Murphy told him that the automobile was at Kenner, Louisiana, where it had been pawned to a merchant, whose name he could not remember.

The plaintiff’s attorney then went to Kenner, and found the automobile in the possession of the defendants, who refused to give it up. Thereupon the plaintiff filed this suit and sequestered the automobile. Defendants immediately bonded the sequestration. The receipted bill in the record shows that an item of three and 50-100 ($3.50) dollars had been pencilled out with the notation “Due to be installed.”

S. T. Christina, a member of the defendant firm, testified as follows:

On November 20, 1922, a man, giving his name as Pat Murphy, called at defendants’-place of business in Kenner with a new Ford automobile, and stated that he wanted to borrow three hundred ($300.00) dollars, so that he could move his family from Vicksburg to Harahan, where he said he had a job in railroad yard as a foreman. Murphy then exhibited an itemized bill for five hundred nineteen and 55-100 ($519.55) dollars made out to him at Red Lick, Mississippi, on the letterhead of plaintiff and stamped paid, Powell Motor Co., Vicksburg, Miss. (Schaffer); that he had Pat Murphy identified to his satisfaction, and then loaned him three hundred ($300.00) dollars, for which Pat Murphy signed a thirty-day note, dated November 20, 1922, and, as security for the note, left the automobile with the defendants.

As to the so-called identification, Christina testified as follows:

"I asked him did he know anybody and he said, yes he knew Mr. E. C. Roddy, superintendent or road master of the I. C. Railroad * * * I rang uip Roddy and couldn’t get hold of him * * * We met Mr. Radetke, the flagman on the switch engine; we went over to him and asked him did he know this man; he said his face was familiar; he said if I am not mistaken, he worked in the government yards, during the strike. I said, ‘you are positive you know him’ and he said, ‘yes, I am positive I know him’.”

This evidence was not satisfactory to the trial judge and it is not convincing to us. It would have been far more persuasive had defendants secured information from Roadmaster Roddy, instead of relying on the vague statement of the flagman of a switch engine-whom he accidentally met at the time. Had he spoken- to someone in authority,Uie would probably have ascertained that the story was enitrely fictitious. It will be noted that Radetke didn’t state that the man was then employed by the I. C. Railroad Company, but merely that he thought he had worked there during the strike.

The automobile was not used until the note matured, but upon its non-payment at maturity, the automobile was thereafter used by the defendant firm, and was also continuously used by them after the sequestration was bonded; he never saw Pat Murphy before or after the transaction in question, and never took any steps to enforce the pledge and pawn of the car.

Moncure Dabney, an attornety’-afrilaw, practicing in Vicksburg, Mississippi, testified that he had been practicing law in that state for the ipast seventeen years; that he was familiar with the laws of Mississippi in respect to the sale of movable property, and that where one gives a worthless check in Mississippi in payment for an automobile, no consideration passes, and there is no sale. On cross-examination he was asked to cite any statute or decision of Mississippi supporting his answers. He cited the case of Citizens Bank vs. Kretschmar, 91st Miss. Report, 44 Sou. Rep. 930, where the Supreme Court of Mississippi held as follows:

“Where a check given in payment of an account is not honored on presentment, the original indebtedness is not discharged but continues, and may be sued on without resorting to the debtor’s liability on the check.
“Where a check is received as payment, but is dishonored on presentment, it does not amount to a payment, for the creditor’s agreement to accept is without consideration.”

There was judgment in the District Court in favor of the plaintiff, maintaining the sequestration and decreeing that the plaintiff was the owner of the automobile. The judge of the District Court, in the course of his reasons for judgment, uses the following words:

“The evidence further shows that, at the time the alleged loan was made to Pat Murphy, he gave his note for the sum of $300.00, payable 30 days from November 20, 1922, and no suit or action was ever taken by the holder of the said note at its maturity, nor has any action been taken by the defendants on said note, or pawn, in order to determine their rights in the premises, except by way of answer and prayer in these proceedings.
“To hold that Christina, or the defendants, are innocent third parties, and, as such, entitled to recover under the evidence in this case, would be opening the door to gigantic frauds, unheard of, which the court cannot and will not lend ear to or countenance.”

The transaction between the plaintiff and Pat Murphy was consummated in the State of Mississippi, and, therefore, whether it constituted a sale or not, must be determined by the laws of that state. Mr. Dabney, an attorney in good standing in Mississippi, testified that where one gives a worthless check in Mississippi, in payment for an automobile, there is no sale, and the case cited by him sustains his statement of the law.

In the case of Overland-Texarakna Company vs. Bickley, 152 La. 622, 94 So. 138, the Supreme Court of this state held that, where a person bought an automobile in Arkansas by a conditional sale which, under the laws of Arkansas, did not vest title in the purchaser, that the purchaser could not convey title to the automobile by a sale in Louisiana, because he had no title when he brought the automobile into Louisiana.

This case was followed by this Honorable Court in the case of Hinton Company vs. Rose, 4 La. App. 471, where the original transaction was consummated in Mississippi, and the automobile was subsequently pledged in Louisiana. This court held that the title to the automobile not having vested in the purchaser under the laws of Mississippi, the pledgee in New Orleans had no lien or privilege on the car, for the same reasons as were given hy the Supreme Court in the Overland-Bickley case..

Defendants seek to differentiate this case from the above on the ground that plaintiff had clothed Murphy with an indicium of ownership, namely, the receipt and that an innocent pledgee should recover the amount of his loan under the rule.

“Where one of two innocent persons must suffer by fraud of a third person, the loss should fall upon him hy whose act or omission the wrongdoer has been enabled to commit the fraud.”

To sustain their contention defendants cite in their brief two cases, Saloy vs. Bank, 39 La. Ann. 30; and Brewing Co. vs. Ice Co., 128 La. 779, 55 So. 369. These cases are not in point. First refers to negotiable bonds, which are always an exception and the second case tends to support plaintiff’s contention.

Plainly this rule does not apply if the. two innocent persons have been guilty of acts or omissions equally careless.

In Frantz & Co. vs. Fink, 125 La. 1013, 52 So. 131, where plaintiff had placed in the hands of one Moss, certain jewelry with the right to sell it and retain for them a fixed amount, and Moss fraudulently pledged the jewelry to Keil for five hundred ($500.00) dollars, and later Fink had redeemed the pledged goods from Keil and claimed them as owner, the Supreme Court held that Fink must surrender the property to plaintiff because under all the' circumstances he should have investigated further, the court uses the following language:

“For him to be in a position to do so (i. e., to invoke equitable estoppel), it would be necessary that he should not only have been destitute of knowledge of the real facts, but should also have been without convenient or ready means of acquiring such knowledge.” 16 Cyc. 739.

Here there were convenient and ready means by which defendants could have ascertain whether the holder of the stamped receipt was really the owner of an unencumbered ear. In a short time they could have long distanced plaintiff in Vicksburg or they could have ascertained from Roddy the truth as to Murphy’s standing.

Further, defendants’ failure to foreclose on their pledge at the end of thirty days when note was not paid and their continuous use of the car since that time seem to Oshow determination to get the value of their money out of the use of the car rather than any particular interest in its ownership.

On this point see also Frantz & Co. vs. Winehill, 124 La. 680, 50 So. 650. See also 23 R. C. L., p. 1386, Sec. 209:

“In opposition to rule announced in preceding paragraph the view is taken in a number of cases, which in fact appear to he in a majority, that as delivery is conditional on payment of price and no title passes until price is paid unless such payment is waived, a bona fide purchaser acquires no title, if original seller has been guilty of no delay in forcing his right to take possession.”

Banks vs. Wisconsin Ry. Co., 44 Minn. 24, 46 N. W. 342:

“In such a case, if the check is dishonored, the vendor, if guilty ot no iraud or laches, which create an equitable estoppel against him may retake the property even from an innocent subvendee for value. We are not called upon to decide what would have been the effect if any one had dealt with the wheat in reliance upon the acknowledgment of the elevator company in the receipted bill, that it had been paid for, for there is no evidence that such was the fact. But it is difficult to see how any negligence or laches can be ascribed to the act of a vendor giving his vendee a receipted bill-of the goods upon receiving his check on his banker, which the vendor has every reason to suppose will be paid on presentation.”

See Zuchtmann vs. Roberts, 109 Mass. 53.

Johnson vs. Iankovitz, 57 Ore. 24, 29 L. R. A. (N. S.) 109, the court says:

“Mechem on Sales, 554, states that, where the payment of the purchase price is expressly or impliedly a condition precedent to the passing of title, the delivery is deemed to be conditional, and, if payment is refused, the vendor may reclaim his goods either from the vendee or anyone claiming through him. To the same effect are 551, 552, 555 Id.; Benjamin, Sales, 320, 343, and note on page 299; Johnson-Brinkman Commission Co. vs. Central Bank; National Bank of Chicago, B. & N. R. Co.; Hirschorn vs. Canney; Armour vs. Pecker; and Evansville & T. H. R. Co. vs. Erwin, supra; Merrill Furniture Co. vs. Hill, 87 Me. 17, 32 Atl. 712; Dudley vs. Sawyer, 41 N. H. 326.”

For above reasons the judgment is affirmed.


author: JONES, J.

text:
    No. 10,689
    Orleans
    TEXAS PACIFIC-MISSOURI PACIFIC TERMINAL R. R. OF NEW ORLEANS v. ROUPRICH
    (April 9, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Expropriation—Par. 63, 64.
    Where the evidence shows that there was no market value for the lease, lessee, defendant in an expropriation suit, will only be allowed the amount which the record shows plaintiff had offered.
    Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans against Anthony M. Rouprich.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    John E. Fleury, of New Orleans, attorney for plaintiff, appellant.
    L. H. Gosserand, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit to expropriate a certain lease on improved real estate situated in the Town of McDonoghville in which the defendant operated a grocery store and lived with his family.

Plaintiff alleges as follows: That it is engaged in operating a railroad from New Orleans to Westwego terminating at what is known as Old Mile Post Nine at which point it connects with the line of the Texas & Pacific Railway Company; that it had a plan of extension to care for the increase in business coming into the port of New Orleans and for this purpose desired to expand its yards an additional 1,000 feet south and. • 340 feet east and west of its present tracks; that it had already acquired by lease and by private purchase in the Town of McDonoghville various properties for right-of-way and terminal purposes and that it acquired from Mrs. Caroline Rouprich, widow of Daniel F. Middleton by virtue of the verdict of the jury and the judgment of the lower court rendered in proceedings No. 5646 of the docket of the lower court and also by notarial act, the land and the building located on the land on which the defendant claims that he has a lease for the price of ten thousand, seven hundred ($10,700.00) dollars; at the time of the purchase of this property it discovered that Mrs. Middleton had leased the property with the buildings thereon to the defendant for a term of three years commencing on the 1st day of October, 1924, and ending on the 1st day of September, 1927, for a monthly rental of sixty ($60.00) dollars per month, payable monthly represented by thirty-six (36) rent notes.

This suit was filed bn July 16, 1926, and the jury’s verdict giving defendant one thousand ($1,000.00) dollars was rendered and the judgment signed on July 30, 1926.

The lease had then fourteen (14) months to run.

Defendant answered as follows: He had leased the property for the purpose of operating a grocery store, the store had been operated by him for about ten years and during the last several years his average income, over and above his expenses, had exceeded three thousand ($3,000.00) dollars; he has used the premises as a domicile for himself and his family and he had established a trade and business, the good will of which would not survive the destruction of this particular place of business; that it would be impossible for him to re-establish the business in any other locality and that the expropriation of his lease would cause' him damages and irreparable injury.

Frank J. Tillotson, a notary public and licensed real estate dealer of the Parish of Jefferson, the only witness for plaintiff, testified that he had been in the real estate business for six years; was acquainted with the location of the property in question; that in view of the fact that all of the buildings but one in the square where defendant operates his grocery had been moved, a lease on a building in that locality would not have much value and he was doubtful if he could get ten dollars per months for a lease on defendant’s place.

He further testified that nearly all the houses have been and are being moved away from defendant's locality and there wouldn’t be anybody to patronize the place; he doesn’t think he could get sixty dollars per month for this lease; that as a real estate agent in the face of the fact that all of the houses in the square, surrounding this particular property leased by defendant, from which he could reasonably expect to obtain trade, have either been demolished or removed he would not recommend a lease to anybody under such conditions.

The defendant, Anthony M. Rouprich, the only witness for defendant, testified that he had been in this place ten years; that he used the building for a grocery store and domicile; that he had had no offers for the lease as he didn’t want to sell it; he didn’t know whether he could sell it or not, nor did he know the market value of the lease.

Defendant attempted to show that he valued the lease at two hundred fifty ($250.00) dollars per month, a total of three thousand ($3,000.00) dollars per year; that he had been operating for ten years, making three thousand dollars per year, all of which was objected to and the objection sustained by the Judge of the lower court and the evidence ordered stricken from the record on the ground that the only question involved was the market value of the lease; that contemplated and prospective profits were not elements to be considered in fixing market value in expropriation proceedings, but only actual damages were to be considered.

The record contains a written offer from plaintiff to pay defendant two hundred ($200.00) dollars for his lease.

It was incumbent on the defendant to prove that the lease at the time of the expropriation had advanced in price, but he has proved only that his lease has no market value.

The only Louisiana case on the subject is reported in 32 La. Ann. 371, entitled “In Re Morgan R. R. & S. S. Co.”

In that case certain property was expropriated on which there existed a lease, the monthly rental 'being sixty ($60.00) dollars, and the commissioners allowed the lessee four thousand twenty ($4,020.00) dollars as the value thereof.

The award of the commissioners was set aside and the lessees were granted fifteen ($15.00) dollars per month for the unexpired term of the lease, that amount being the difference between what the lessees had to pay monthly and what the lease would sell for. The Supreme Court discussed the question of prospective profits as follows:

“The only true test of this excess of the value of the lease over the stipulated rental or price thereof, is to ascertain what sum the right of lease, leasehold, will bring over and above the rent stipulated to be paid. In the case before us the rental is sixty dollars per month. If the right of lease would sell for seventy-five dollars per month of its term, then the excess of its value over its price is fifteen dollars per month.
“The right of expropriation being a legal one, its exercise does not give rise to any other than actual damages; consequently, damages are not to be considered. The law fixes these actual damages where the whole of a thing or right is taken at the fair value of that thing or right. The fact that the owner or lessee might build a store, or a factory, or warehouse on tne lot, and derive large profits from that business would not make those contemplated profits a proper element in fixing its present value. So the fact that the lessees, by keeping a coal yard on the lot, and having free access to the wharf (which they have not, by reason of the privileges accorded to this company by the city) might realize large profits from that business, would not justify us in taking the amount of these prospective and problematical profits as the value of the lease.”

See Shreveport, etc., R. R. vs. Hinds, 50 La. Ann. 787, 24 So. 287.

“In expropriation suit market value of the property taken is the test in fixing the value.”

See Yaxoo & R. R. vs. Teissier, 134 La. 958, 64 So. 866; Hill vs. Chicago & R. R. 38 La. Ann. 599; New Orleans Pac. R. R. Co. vs. Murrell, 36 La. Ann. 344; Shreveport R. R. vs. Hinds, 50 La. Ann. 781, 24 So. 287.

“A jury in an expropriation case, as in any other case, is the judge of the credibility of the witnesses, and may determine as to the value of the testimony given by such witnesses, respectively; but its verdict like the verdict of any other jury must eventually be predicated upon the law and the evidence, and, where it entirely ignores the evidence, and rests its verdict exclusively upon the opinions of its members, such verdict if manifestly erroneous, as judged by the evidence, will be set aside.” '

See New Orleans vs. Schroeder, 111 La. 653, 35 So. 800; New Orleans vs. Morgan, 111 La. 851, 35 So. 951; Houston & R. Co. vs. Kansas City & R., 109 La. 581, 33 So. 609; Natchitoches & R. Co. vs. Henry, 109 La. 669, 33 So. 725.

The record in this case clearly shows that there was no evidence before the jury to warrant them, inarbitrarily fixing one thousand ($1,000.00) dollars as the amount that the plaintiff should pay the defendant for his lease. The verdict of the jury and the judgment of the lower court are clearly erroneous. They will be set aside and the lease decreed to be the property of plaintiff as owner of the land by virtue of the expropriation, upon plaintiff’s paying to defendant the amount he offered, two hundred ($200.00) dollars.

It is ordered, adjudged and decreed, that the lease held by Anthony M. Rouprich from Mrs. Caroline Middleton, for a term of three years, commencing the 1st day of October, 1924, and ending the last day of September, 1927, for a monthly rental of sixty ($60.00) dollars per month, represented by thirty-six (36) rent notes, payable to the order of Anthony M. Rouprich, and by him endorsed, one of said notes being paid .on the 1st day of November, 1924, and one on the 1st day of each and evry succeeding month, with interest at the rate of six (6%) per cent from maturity until paid; which lease is recorded in Conveyance Book 74, Folio 219, of this Parish, and is on the following described property, to-wit:

“A CERTAIN PIECE OR PORTION OP GROUND, together with all the buildings and improvements thereon, situated in the City of Gretna, formerly McDonoghville, State of Louisiana, designated as Lot “J” in Square 41, which said Square is bounded by Jefferson, Periander, Adams and Anson Streets, and according to plan made by Frank T. Payne, Civil Engineer, which said plan is annexed to an act of sale from Mrs. Margaret Rouprich, widow of Daniel F. Middleton, passed before F. A. Middleton, Notary Public, on May 30th, 1916, said Lot “J” measures sixty-four (64) feet, four (4) inches and six (6) lines front on Jefferson Street, by a depth of one hundred and fifty-nine (159) feet, ten (10) inches and three (3) lines between parallel lines and front on Periander Streets; as will more fully and clearly appear by reference to plan or sketch annexed hereto and made part hereof, marked ‘Exhibit A.’
“Being the same property which was acquired by Mrs. Caroline Rouprich, widow of Daniel Frederick Middleton, by purchase from Mrs. Margaret Rouprich, widow of Henry Berger, et als., by an act passed before P. A. Middleton, a Notary Public, in and for the Parish of Jefferson, on the 30th day of May, 1916; said act being duly registered in the Conveyance Office of the Parish of Jefferson in C. O. B. 38, Folio 428;”

be and it is hereby adjudged to the plaintiff, Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, for its uses and purposes, upon the payment by it to the defendant, Anthony M. Rouprich, of the sum of two hundred ($200.00) dollars, in accordance with law.

• It is further ordered, adjudged and decreed that the plaintiff pay all costs of this suit.


author: CLAIBORNE, J.

text:
    No. 11,090
    Orleans
    NORMAN v. WOODS
    (January 2, 1928. Opinion and Decree.)

      tSyllabus by the Court)
    1. Louisiana Digest — Landlord and Tenant —Par. 70, 117.
    The purchaser from the lessor may exercise against the lessee the remedies given by Article C. C. 2713 (2683) to the lessor.
    2. Louisiana Digest — Landlord and Tenant —Par. 118, 121.
    In an ejectment suit the defendant lessee has no right to inject into his answer foreign questions of ownership of his lessor, of the validity of his title, or of damages inflicted by the suit.
    3. Louisiana Digest — Landlord and Tenant —Par. 118, 121.
    Nor can the lessee dispute the title of his lessor.
    4. Louisiana Digest — Landlord and Tenant —Par. 121.
    The judgment of eviction in favor of the lessor is decisive of the question that the plaintiff was the lessor of the defendant.
    Appeal from the First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Frank S. Norman against John Woods. ,
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Norman, Breckwoldt and Schwartz, and L. R. Hoover, of New Orleans, attorneys for plaintiff, appellee.
    D. V. Dusson, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims of defendant $168 for rent.

He alleged that on September 13, 1925, he leased verbally to defendant the premises No. 641 S. Broad Street for the price of $14 per month payable in advance commencing September 13, 1925; that the defendant has occupied said premises since September 13th up to the date of filing this petition (April 22, 1927); that .he has paid rent up to May 13, 1926, leaving a balance due of twelve months from May 13, 1926, to April 13, 1927, or $168, for which he prays judgment with lessor’s privilege and provisional seizure.

The defendant filed a general denial, and further answering alleged “that he never entered into a contract of lease with the plaintiff, Frank S. Norman, and that he is in possession of the premises described in the petition by virtue of a contract of lease with Frances Sandford to whom he has regularly paid his rent.” He also reconvened for damages for the illegal issuance of the writ, “harm done to his standing in the neighborhood and his credit, $100; and attorney’s fees for the dissolution of the writ, $125.”

There was judgment in favor of plaintiff as praye'd for, and against the defendant, dismissing the reconventional demand.

The defendant has appealed.

In this Court the plaintiff has prayed for damages for frivolous appeal.

The record in this case shows that by Act dated January 10, 1925, Mrs. Frances Sandford sold to Frank S. Norman, plaintiff herein, the property occupied by the defendant.

It also shows that rent for that property was paid to the plaintiff for several months, including May, 1926.

There was also introduced in evidence the record in the suit of Frank S. Norman vs. John Woods, No. 143,118 of the First City Court, filed December 17, 1926, for possession of the premises 641 Broad Street.

To this suit the defendant John Woods answered that he was not the tenant of the plaintiff but of Mrs. Frances Sand-ford, and that if plaintiff sought to base his rule on his title from Mrs. Sandford, that the question of plaintiff’s ownership under said title was pending before the Civil District Court, No. 164,415, and pleaded the exception of lis pendens; that he never paid any rent to plaintiff, and never owed him any; that he had been occupying said premises for more than one year under a verbal lease from Mrs. Frances Sandford to whom he had paid rent.

On January 10, 1927, there was judgment in that case in. favor of plaintiff “condemning the defendant John Woods to vacate the premises No. 641 S. Broad Street and to deliver possession of the same to Frank S. Norman.”

From this judgment John Woods took an appeal to this Court under No. 10,855. On April 6, 1927, this Court, Judge Westerfield as the organ, affirmed the judgment of the City Court, stating;

“It having been shown that Frank S. Norman was owner of record of the premises in suit during and subsequent to the time of the occupancy of the defendant stated in petition.”

This decision is correct. It has been decided that the purchaser from the lessor may exercise against the lessee the remedies given by the Article C. C. 2713 (2683) to the lessor. 8 N. S. 560; Godchaux vs. Bauman, 44 A. 256, 10 So. 674; Hinrichs vs. Tulane Educational Fund, 49 A. 1029, (1036) 22 So. 96.

The defendant had no right to inject into his answer the question of ownership of the premises or the reality or validity of the sale by Mrs. Sandford to the plaintiff, Norman.

“The law intended to give a speedy and efficacious means of putting. the lessor in possession and leaves the other questions growing out of the contract to be settled in due course of law, after possession is obtained.” 8. N. S. 564.

A claim for damages alleged to have been sustained by the proceedings for possession cannot be grafted on a suit for possession of the leased premises. Ward vs. Stakelum, 47 A. 1546, 18 So. 508.

The defendant in ejectment proceedings cannot change the character of the action from summary to ordinary, nor engraft foreign issues thereon for the purpose of trying questions which are legally determinable only in an ordinary action.

Mighell vs. Kelly, 51 La. Ann. 281, 25 So. 101; Cepro vs. Matulich, 152 La. 1072, 95 So. 226; Babst vs. Hartz, 161 La. 428, 108 So. 871; 11 A. 612.

Nor can the lessee dispute the title of his lessor. Hanson vs. Allen, 37 A. 732; Davidson vs. Fletcher, 130 La. 668, 58 So. 504; Harvin v. Blackman, 112 La. 24, 36 So. 213; Barrett vs. Pierson, 163 La. 451, 112 So. 410.

The judgment of eviction in favor of plaintiff against defendant is decisive of the question that the plaintiff was the lessor of the defendant. 121 La. 431.

In such capacity plaintiff as lessor is entitled to recover rent from his lessee, John Woods. 37 La. Ann. 904.

We do not think that this is a case where the appeal may be considered frivolous.


text:
    No. 10,118
    Orleans
    WISE-MILLER v. CATALANOTTO
    (March 26, 1928. Oponion and Decree.)
    (April 9, 1928. Rehearing Refused.;
    (May 8, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Brokers—Par. 18.
    One who, through a broker, has offered to buy a property, the offer to remain good and irrevocable through November 10th, and who obligates himself to pay the commission should he fail to comply with the terms of his offer, and who afterwards withdraws his offer before it is accepted, is liable to the broker for the commission he might have earned by a sale.
    Appeal from Civil District Court, Div. “D.” Hon. Porter Parker, Judge.
    Action by Wise-Miller against A Catalanotto.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    F. R. Freeland, of New Orleans, attorney for plaintiff, appellee.
    . Guión, Upton & W. W. Ogden, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The plaintiffs were authorized by Rieeke to sell his property for $10,000.

The plaintiff obtained from defendant the following offer and document, reading in part:

“Wise-Miller:
“I offer to buy the property for $9,000 * * * ; should I fail to comply with the terms of this offer, if accepted, I obligate myself' to pay the commission and all fees and costs incurred in enforcing collection. This offer to remain good and irrevocable through Nov. 10th, 1923.
(Signed) “Anthony Catalanotto.”

To which Rieeke answered:

“I accept the above offer and agree to pay you 3% commission on purchase price.
“Nov 10/23 — 1 P. M.
(Signed) “Rieeke.”

But earlier on the same morning of November 10th, at 10 a. m., the defendant, who had made the offer to purchase, had notified the plaintiff, broker, not to submit his offer to the owner.

Whereupon the plaintiff broker sued the prospective purchaser for his commission, $270, and for $50 attorney’s fees under the offer to purchase made by him.

The defendant admitted signing the offer to purchase the property for $9,000, but averred that at 10 o’clock of the morning of November 10th he called at plaintiff’s office and withdrew his offer to purchase as he had a right to do, because his power of attorney to plaintiff was revocable, -and because there was no contract between him and plaintiff and no fee can be claimed to enforce the same.

There was judgment for plaintiff for the commission, and defendant alone has appealed. In this Court plaintiff asks for attorney’s fees also.

The argument of the defendant is that he withdrew his offer before it was accepted by the owner, as he had a right to do under Articles C. C. 1800-1804, as interpreted by the Supreme Court in Blanks vs. Sutcliffe, 122 La. 448, 47 So. 765, and therefore there was no contract cif sale and consequently no commission earned.

Articles C. C. 1800-Í804 have their effect as between Catalanotto, who made the offer to purchase, and Rieeke, the owner. But they can have no efféct as between, Catalanotto and Wise-Miller, the brokers, employed by the former to negotiate the sale to him, and to whom they promised to pay the commission if he failed “to comply with the terms of his offer * * * good and irrevocable through November 10th, 1923.”

In the Blanks case the contest was between Sutcliffe, owner of sixty shares of stock, and Blanks, to whom he had offered to sell the stock subject to his “acceptance on or before June 15th.” Before June 15th Sutcliffe withdrew his offer. Blanks sued Sutcliffe for specific performance or for damages. The Court held that Sutcliffe had a right to withdraw his offer at any time before it was accepted. Sutcliffe was the owner of the stock and offered to sell it to Blanks.

But this case is not one between the owner and the party to whom he made the offer of sale.

It is the case of the broker to whom the prospective purchaser has obligated himself to pay the commission should he fail to comply with the terms of his offer if accepted.

One proposition is the right of Catalanotto to withdraw his offer to purchase until it is accepted, and another, his right to put an end to his irrevocable contract with the plaintiff, broker?, before the expiration of the time fixed by the contract.

2 C. J., p. 528(a):

“You may revoke an authority although you cannot revoke a contract. A distinction must be made, however, between the principal’s power to terminate the authority of the agent to act for him and to bind him to third persons, and the right of the principal to terminate the relation without liability to the agent. As between the principal and agent the right depends on the terms of the contract, and if the agent is discharged in violation of those terms he has a right of action for a wrongful discharge. In this respect the contract and the right thereunder are analogous to the ordinary contract between master and servant.’’

In the case of Viguerie vs. Davus, 5 La. App. 77, this Court held that “where •a contract of agency to sell Real Estate is granted for a specified time allowed the agent in which to effect a sale, the principal cannot deprive the agent of his right to commissions by revoking the agency prior to the expiration of the time stipulated.” See also Id. p. 434.

We have also decided that the party through whose fault the sale is not consummated owes the commission when he has promised to pay it. 5 La. App. 609; 3 La. App. 319 (322); Succn. Fairchild, No. 7848, Ct. App.; O. Bk., 56 Tessier, p 31; Brugier vs. Ritchie, 7 Orl. App. 179.

It is therefore ordered that the judgment be amended by increasing it to three hundred and twenty dollars and as thus amended that it be affirmed.


author: WESTERFIELD, J.

text:
    No. 11,148
    Orleans
    BROOMES PRINTING OFFICE v. LOUISIANA MARGARIN COMPANY
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest-Mandate — Par. 73, 74, 101; Action — Par. 12.
    A manager of a mercantile establishment is not, ex officio, authorized to bring suit on behalf of his employer. The same is true of an individual who styles himself an agent without reference to, nor exhibition of, any mandate.
    Appeal from First City Court, Section “A.” Hon. W. Alexander Bahns, Judge.
    Action by Broomes Printing Office against Louisiana Margarin Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Edward Lazier, Fennon, Murphy & R. O. Vorbusch, of New Orleans, attorneys for plaintiff, appellee.
    Carroll & Carroll, Henry G. McCall, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit was brought in the name of the Broomes 'Printing Office, represented by. N. G. Brootae, Manager. Defendant excepted on the ground that the petition did not show that the suit was brought by any person, partnership or corporation or other judicial being, or by any person or entity authorized to bring suit or stand in judgment.

A supplemental petition was voluntarily filed in which it was alleged that in the original petition “the name of the owner of the Broomes Printing Office was, through error, omitted,” and “that M. L. Broome is the sole owner of said business” and that “N. G. Broome is the manager and agent in full charge of said business.”

To this supplemental petition defendant again excepted on the ground that plaintiff was not properly before the court because no power of attorney was attached and none claimed to exist whereby N. G. Broome was authorized to act for the owner of the Broomes Printing Office, M. L. Broome.

The exceptions were overruled and a judgment rendered in plaintiff’s favor on the merits.

We are of opinion that the exceptions should have been maintained. M. L. Broome, alleged to be the owner of Broomes Printing Office is a stranger to the pleadings. No appearance on his behalf personally, or through an agent is made. A manager can not institute a suit on behalf of his employer, nor can an individual, styling himself an agent, do so without reference to, or exhibition of some authority for his action.

The judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s suit.


text:
    No. 11,255
    Orleans
    GOSSERAND v. CITY OF GRETNA
    (January 2, 1928. Opinion and Decree.)

      {Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 583.
    No appeal lies from an interlocutory judgment which can not cause irreparable injury.
    Petition for Writ of Mandamus directed to Hon. Robert L. Rivarde, Judge, Twenty-fourth Judicial District Court, Parish of Jefferson.
    Action by Louis H. Gosserand against the City of Gretna.
    Former writs heretofore issued recalled.
    John E. Fleury & Andrew H. Thalheim, of New Orleans, attorneys for relator.
    L. H. Gosserand, of New Orleans, attorney for respondent.
   OPINION.

WESTERFIELD, J.

This is an application for mandamus and prohibition by the Jefferson Parish School Board, relator, for the purpose of compelling Hon. Robert L. Rivarde, Judge of the Twenty-fourth Judicial District Court, Parish of Jefferson, to grant an apepal from the following judgment:

“The rule herein filed on July 7th, 1927, ordering the Jefferson Parish School Board to show cause why the sum of seven hundred and sixty-six dollars and ninety-seven cents ($766.97> seized and sequestered in the above suit by the Sheriff of the Parish of Jefferson and which sum was left in the registry of the Jefferson Parish School Board as keeper and stakeholder, should not be returned to and placed in the hands of the Sheriff of the Parish of Jefferson, having been taken up, and tried and submitted.
“It is ordered, adjudged and decreed that the said rule be and the same is hereby made absolute and accordingly:
“It is further ordered, adjudged and decreed that the said Jefferson Parish School Board turn over and deliver unto the Sheriff of the Parish of Jefferson, the said sum of seven hundred and sixty-six dollars and ninety-seven cents ($766.97), forthwith; the said sum of ($766.97) to remain in the hands of the Sheriff of the Parish of Jefferson, until the further orders of this Court.
“Rendered, read and signed this 14th 14th day of November, 1927.
“(Signed) L. Robert Rivarde, Judge.”

The respondent Judge justifies his refusal to allow the appeal upon the ground that his judgment is interlocutory, and works no irreparable injury, and we are of the same opinion.

The judgment requires the relator to deposit with the Sheriff a sum of money held by its as stakeholder. The money is simply transferred from one depository to another. We fail to see how irreparable injury can result from the execution of this judgment which is obviously interlocutory. The money is not finally disposed of, hut simply removed to the custody of the Sheriff.

The alternative writs of mandamus and prohibition heretofore issued are recalled at relator’s cost.


text:
    No. 11,240
    Orleans
    SOUTHERN SEATING CO v. COMMUNITY BURIAL SERVICE
    (March 26, 1928. Opinion and Decree.)
    (April 9, 1928. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Costs and Fees — Par. 59, 62; Appeal — Par. 512.
    Appeal from First City Court, Division “C.” Hon. Wm. S. Seeber, Judge.
    Action by Southern Seating Company against Community Burial Service.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed with 10% damages for frivolous appeal.
    R. R. Ramos, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

(Opinion contained in syllabus above.)

This is a suit on an open account. No brief was filed and no appearance was made in this court on behalf of defendant. Appellee asks for damages for frivolous appeal. We believe the damages claimed are due since there seems to be no serious defendant.

The judgment appealed from will be affirmed with 10 per cent damages for frivolous appeal.


text:
    No. 10,940
    Orleans
    SHREVEPORT OIL CO. v. JOHNSON
    (October 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    As only questions of fact are involved and-the opinion of the trial judge is sustained by the evidence, it will be affirmed. ,
    Appeal from First City Court, Division “C.” Hon. W. V. Seeber, Judge.
    Action by Shreveport Oil Company against William F. Johnson, Sr.
    There was judgment for. defendant and plaintiff appealed.
    Judgment affirmed.
    Prowell, McBride & Ray, of New Orleans, attorneys for plaintiff, appellant.
    F. McLaughlin, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit by the Shreveport Oil Company against William F. Johnson, Sr., for gasoline and oils sold and delivered by plaintiff to the defendant upon which there is alleged a balance due of one hundred eighty-five and 92-100 ($185.92) dollars; the answer is a general denial; the judgment of the lower court was for the defendant and plaintiff, has appealed.

This case comes before us solely upon a question of fact, the sale and delivery of thq oil to defendant.

Two witnesses support the contention of plaintiff and two that of defendant to the effect that the oil was sold and delivered to defendant’s son. Thus honors are equally divided as to preponderance of testimony.

Furthermore the attendant circumstances and written evidence support defendant.

On these points the evidence shows as follows:

(1) That plaintiff was a' painter, while. his son was operating a truck business and therefore needed oil and gasoline.
(2) That defendant’s son gave at least one check on his own bank account to pay plaintiff a similar bill for oil.
(3) The itemized bill attached to the petition on which plaintiff sues, is not addressed to anyone.

We agree with the lower judge in' thinking that plaintiff has failed to make his case certain.

The judgment is there affirmed.


text:
    No. 11,063
    Orleans
    POUEY v. SURLE AND LEVY
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 243.
    In the sale of animals when the disease has manifested itself after three days from the date of sale the harden of proof is on the buyer to show that the disease existed at the time of the sale or within three days thereafter.
    (Civil Code, Art. 2530.)
    2. Louisiana Digest — Error and Mistake— Par. 8, 15.
    The error in a contract of sale must be on a material part of the contract which ■ has influenced the making of it.
    Appeal from the First City Court. Hon. W. V. Seeber, Judge.
    Action by Louis Pouey against S. Surle and H. Levy.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    Prowell, McBride & Ray, of New Orleans, attorneys for plaintiff, appellant.
    I. F. Williams, of New Orleans, attorney for defendants, appellees.
   CLAIBORNE, J.

Plaintiff alleged that he is the owner of a promissory note for $156 dated November 10, 1925, payable six months after date made by the defendants to the order of plaintiff.

The defendants denied all the allegations of plaintiff’s petition. They averred that on November 8, 1925, plaintiff inserted in the Times-Picayune an advertisement of the sale at auction of thirty cows; that the advertisement contained the following statement: “All cows tested 10 days ago;” that the autcioneer, before asking for bids, also stated “that all cows had been tested and were free from tuberculosis;” that acting upon the faith of said advertisement, the defendant, Surle, purchased two cows at said auction, and for the price thereof gave the note presently sued on with Levy as endorser; that as a matter of fact the two cows ipurch'ased by defendant had not been tested and were at the time of the sale infected; that on February 9, 1926, the two cows were condemned by the Board of Health and sold for $42.85; that defendant notified the plaintiff of said condemnation and sale and tendered $42.85 to plaintiff who refused them; that the above facts constitute fraud on the part of plaintiff who knew that the cows had not been tested and should have known that the cows were infected; that the note subscribed by defendant is therefore null, and upon payment of $42.85 to plaintiff, he should be ordered to return it to defendant.

There was judgment dismissing plaintiff’s suit upon the note, and in his favor for $42.85. The plaintiff has appealed.

1st. The first defense that the cows had not been tested at all is not supported by any testimony. On the contrary, Louis Pouey, the plaintiff, and Mrs. Pouey, his wife, testify that the cows were tested. Schiro, the .auctioneer, swore that the cows carried the test tags in their ears at' the time of the sale. Dr. Vonheader, of the Louisiana Board of Health, testified that he tested the cows on October 16th.

Even the defendant, Surle, testified that after the cows had been condemned he went with Levy, his co-defendant, to Dr. Venidas’ office and got the slip, showing the date of the examination of the cows. Yet Levy swore to his answer denying that the cows had been tested at all.

2nd. The second defense is that the cows were infected at the time of the sale, as (plaintiff knew or should have known.

The law governing this defense is contained in Article C. C. 2530 (2508):

“The buyer • who institutes the redhibitory action must .prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale it is presumed to have existed before the sale.” •

C. C. 2535 (2513):

“The redhibition of animals can only be sued for within two months immediately following the sale.”

The sale was made on November 10, 1925. On February 9, 1926, 91 days thereafter, Dr. Ross’ test of the cows was made showing them infected with tuberculosis. There is not any evidence or testimony tending to prove that the cows were infected on the day of sale or “within three days immediately following the sale.” The jurisprudence is as follows:

“When the disease has manifested itself after three days the burden of proof is on the buyer to show that it existed at the time of the sale.” 8 N. S. 478; No. 6508 Ct. App.; Banks vs. Botts, 10 La. 45; Fox vs. Walsh, 5 Rob. 222; Roca vs. Slawson, 5 La. Ann. 708; Mackie vs. Davis, 13 La. Ann. 475; Alford vs. Hughes & Randolph, 14 La. Ann. 727; Bach vs. Barrett, 2 La. Ann. 955.

Plaintiff must show that with reasonable certainty the merchandise was unsound at the time he purchased it. Peterkin vs. Oglesby & Co., 30 A. 907.

See specially Fox vs. Walsh, 5 R. 222 and Crawford vs. Alexander, 5 La. Ann. 708, where a slave died of tuberculosis; also Bach vs. Barrett, 2 La. Ann. 955, where a slave died of dysentery; also Mackie vs. Davis, 35 La. Ann. 475, of aneurism where a physician was of “the opinion that the condition that led to aneurism eixsted before the sale, but does not say that the aneurism itself exitsed at that time or before it.” Also Alford vs. Hughes, 14 La. Ann. 727:

“The physician who was called in by plaintiff is of the opinion that the disease may have existed previous to the sale; but this is, at best, a speculative or conjectural opinion.” Roy vs. Roy, 5 La. Ann. 591; Roca vs. Slawson, 5 La. Ann. 708; Bach vs. Barrett, 2 La. Ann. 955.

3rd. The defendants rest their case very much upon the advertisement which stated “all cows tested 10 days ago”, while as a matter of fact the test had been taken on October 16th, twenty-two days before or an excess of 12 days, and their counsel argue that this was a warranty. We have no doubt that this date would have been a warranty if it had been proven that the disease had disclosed’ itself within --those 12 days or if that date had been the motive which induced the defendants to buy. But' no such importance is shown to that date. The presumption is that the defendant would have bought just as well if the advertisement had stated that the test had been made 22 days before. In other words, the test may have been the motive for buying, but not the date of that test.

C. C. 1823 (1847):

“Errors may exist as to all the circumstances and facts which relate' to a contract, but it is not every error that will invalidate it. To ' have that effect, the error must be in some point which was- a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

C. C. 1825 (1819):

“The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is ca-lled the motive, and means that consideration without which the contract would not have been made.”

C. C. 1826 (1820):

“No error in the motive can invalidate a contract, unless the other ©arty was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it, must be presumed that he know it.”

C. C. 1847 (1841) (2):

“The error must' be on a material part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it; but it need not be the principal causse of the contract, as it must be in the case of simple error without artifice.”

C. C. 1845 (1839):

“Error as to the other qualities of the object of the contract only invalidates it, when those qualities are such as were the principal cause of making the contract.”

We therefore come to the conclusion that the cows were tested within such reasonable time before the sale as to preclude the idea that tuberculosis could have existed in the cows on the day of sale, “though the condition that led to it might have existed before it,” and that the defendants have failed to prove the existence of tuberculosis on the day of sale, or within three days thereafter.

It is therefore ordered that the judgment herein be reversed and annulled, and it is now ordered that the defendants Charles Surle and Henry Levy, be condemned, in solido, to pay to the plaintiff herein, Louis Pouey, the sum of one hundred and fifty-six dollars with eight per cent per annum interest from May 10, 1926, till paid and ten per cent attorney’s fees thereon and all costs of suit.