author: Fenner, J. Watkins, J.

text:
    No. 10,637.
    McClellan Dry Dock Company vs. Farmers’ Alliance Steamboat Line et al.
    1. "When several defendants are sued and judgment is prayed against all in solido the defect of the petition, in not specifically alleging that one of them is indebted, is cured by the annexing and ípaking part of the petition of a bond exhibiting his liability, by his answer without exception and by administration of proof without objection.
    2. Joint owners of a steamboat employed in carrying passengers and personal property for hire are, in all transactions connected with such use, as to third persons, commercial partners and liableirc solido.

    3. A vei’dict finding in favor of plaintiff “for full amount of claim” is not void under O. I\, Art. 522.

      4. A judgment on such a verdict, which fails to allow a credit, admitted on the face of plaintiff’s claim, is erroneous, and when remittitur is not entered until after appeal has been completed and filed in this court, this can not deprive appellant of his right to amendment and to have the cost of appeal cast on appellee.
    5. On the facts the finding of the jury approved.
    APPEAL from the Civil District Court for the Parish of Orleans. ElliSj J.

      W. S. Benedict for Plaintiff and Appellee.

      J. F. Pierson for Defendants and Appellants:
    1. BAV. Marston personally is not a party to the suit in the lower court. He is not alleged to be either a principal or a surety to the debt claimed.
    The judgment against him individually in the lower court in solido with the defendant corpomMcm and its surety on the bond is erroneous.
    Suretyship is never presumed; it must result from the express terms of the contract. -C. O. 3039.
    If he was a co-principal debtor, then he would be bound only jointly with the defendant corporation, and liable for his virile share of the debt. O. C. 2080, 2086.

      The Verdict.
    2. In a suit on account for $7899.21, subject to a reduction of $602.20 for two payments, tbe verdict of the jury “for full amount of claim” is void for uncertainty. C. P. 522.
    When the verdict was “Nine in favor of judgment for plaintiff and recognize mortgage,” the court say: “ All authorities agree that a verdict not stating the amount in exact terms is bad.” Miller, Lyon & Co. vs. Cappel, 39 An. 882, and authorities there cited*
    3. But if the verdict be valid in form it should be set aside:
    (ft) Where the verdict is clearly against the weight of the evidence. Proffat on Jury Trial, Sec. ¿72.
    (6) Where the jury disregarded the verdict on one side. Ibid. ¿73.
    (c) For an error of law or its application -to the facts, in which the court will follow its own opinion. Livaudais vs. Perret, 11L. 303.
    (d) Where the evidence does not make full proof of plaintiff’s demand. Dupré vs. Desmaret, 5 An. 591; Seaton vs. Municipality No. 2,3 An. ¿¿; Jones vs. Pereira, 18 An. 102; Osborne vs. Moore, 12 An. 7l¿; Delavigne vs. Williams, 11 An. 250-291.
    (e) We are bound to regard, but not to adopt, the verdict so as to make it the basis of our judgment. Incases in which doubt exists in our minds, we remand a case for the opinion of another jury. Hosea’s Widow and Heirs vs. Miles, 13 L. 110; La. State Bank vs. Ledoux, 3 An. 685.
    What Pdaintiee Must Prove.
    ¿. (ft) It is a general principle that it is the duty of a plaintiff so to manage his business and to produce in court such evidence as to make it certain that he is entitled to what he demands, and that courts can not judicially declare his demands well founded without such proof. Benton vs. Bidault, 6 An. 31; Kearney Blois & Co. vs. I-Iauche, 18 An. 117.
    (&) It was the duty of the plaintiff to make out a clear right, which he has not done. Bradley vs. Frelsen, 10 An. 311; Mummy vs. Haggerty, 15 An. 270.
    (c) It is not enough that a plaintiff renders his claim probable; he must make it legally certain under any circumstances. Bodenheimer vs. Bodenheimer, 37 An. 1007; Beck vs. Fleitas, 37 An. ¿95-96; Jackson & Anderson vs. Beling, 22 An. 378; Ocean Dry Dock vs. Stein, 29 An. N. R.; Skipwithvs. His Creditors, 19 La • 206; Insurance Co. vs. Coons, 36 An. 272; A.lland vs. Orleans Nav. Co., 12 R. ¿71.
    Witnesses.
    5. Witnesses confused as to what they only believe, instead of know; who testify formidably in chief, but fail on cross-examination to disclose any basis for their knowledge, are entitled to no value, even as a beginning or as an aid of proof. Thompson vs. Gee, 37 An. 603; Beck vs. Fleitas, 37 An. ¿95; Benton vs. Bidault, 6 An. 31; Carver & Oo. vs. Harris, 19 An. 121.
    On Reconventionau Demand.
    Damages are due for breach of an obligation to do or not to do. C. 0.1926,
    The party who violates the obligation of his contract is liable to the payment of such damages as the other party has sustained by his default. C. C. 1930.
    Where there has been an active violation of the contract, damages are due from the moment of its contravention. C. C. 1932.
    Where the payment of money is not the object, the measure of damages is the amount of the loss the creditor has sustained, and of the profits he has been deprived. C. C. 1934.

      A designed breach of the contract from some motive of interest or ill will is a breach in bad faith. O. 0.1934, Sec. 1.
    Por this the debtor is liable, not only for all consequences which were or might have been foreseen, but also for those which are the direct and immediate consequences of the breach. Iibd., Sec. 2.
   The opinion of the court was delivered by

Fenner, J.

The-steamboat “ G. W. Sentell” was docked and repaired by the plaintiff, under a written agreement between plaintiff and B. W. Marston, which stipulated that plaintiff was to dock her for $75, charge $10 per day demurrage, and that “ all work and materials to be by the day, subject to any and all inspectors the owner may see fit to send.”

The work was done under the supervision and direction of Capt. Boardman and Ben. Hopkins, designated by Capt. Marston to represent him in the work, and also of the official inspectors of the United States and of the Board of Underwriters.

When the work was done and the bill therefor was presented, Capt. Marston refused to pay. Plaintiff declined to permit the boat to leave without payment or security, whereupon a bond was furnished. The principals named in the bond are “B. W. Marston, individually and as president of the Farmers’ Alliance Steamboat Line, and others interested with them';” and the surety was G. W. Sentell & Co. The condition of the bond was, “ that if said principals shall well and truly pay to said McLellan Dry Dock Company the amount due them by said steamboat G. W. Sentell, its masters and owners, for the services aforesaid, to be fixed by agreement if possible, and if not, by suit at law, then this obligation to be null, otherwise to be of full force and virtue.”

The present suit was brought upon the contract and bond for the amount of plaintiff’s bill, and judgment was asked in' solido against the Farmers’ Alliance Steamboat Line, B. W. Marston individually, and G. W. Sentell & Co. All the defendants were cited, and, interposing no exception, they all appeared and pleaded by answer to the merits, and by a plea in reconvention. The gravamen of the defence was that the plaintiff’s bill was excessive and beyond the value of the work done and material furnished.

Immediately after filing answer, the defendants moved the court for the appointment of experts, one to be selected by defendants and one by plaintiff, and in case of disagreement, one by the court, with directions “to examine and report to the court the character, value-and amount of the repairs made on the G. W. Sentell by the plaintiff, the report of said experts to be used on the trial of the case before the jury.” The motion was. granted, and accordingly, the plaintiff and defendants each selected an expert. They did not disagree, but united in a report substantially affirming the correctness of the bill sued on.

The case was tried before a jury which was prayed for by defendants, and - resulted in a verdict in favor .of plaintiff for the full amount claimed, and rejecting the reconventional demand.

From the verdict and judgment thereon the present appeal is taken.

Defendants, in this court, assign several grounds of error:

1. They claim that B. W. Marston, personally, was not a party to the suit, and that the judgment against him individually can not stand. The prayer of the petition conclusively negatives this contention, because it expressly prays for the citation of B. W. Marston, personally, as one of the defendants, and for judgment against all the defendants in solido, and upon the back of the petition service is accepted by counsel for the defendants, and the defendants all answer. The defect of the petition in not alleging specifically that Marston was indebted is cured by the annexing of the bond, which was made part of the .petition -and which exhibited his liability, by his answer without exception, and by the administration of proof without objection.

2. It is claimed that, if subject to any judgment, Marston is only liable as a joint principal, and was erroneously condemned in solido. We think it sufficiently appears from the tenor of the bond that the principals signed as owners of the G. W. Sentell, and Marston’s own testimony shows that he was one of the owners, if not sole owner. The boat was employed by the owners in the carrying of passengers and personal property for hire, and these repairs were made in the course of such employment and for the purpose of enabling her to continue the same. Under our Code it is well settled that joint owners of a steamboat employed in carrying personal property or passengers for hire are, in all transactions connected with such use, as to third persons, commercial partners, and liable in solido. Rev. C. C. 2825; 5 An. 260; 3 An. 88; 1 An. 836, and'many other cases.

This suffices to fix his solidary liability.

3. The verdict is assailed as being informal and void for want of certainty. The verdict is in these words: “We, the jury, find a verdict for the plaintiff, with interest from date of bill, for full amount of claim.”

It is true that Article 522, C. P., prescribes that the form of 'a general verdict if in favor of plaintiff is “ verdict for plaintiff for so much, with interest.” Equally true is it that we have frequently held that “a verdict not stating the amount in exact terms or their equivalent is bad.” Miller vs. Cappel, 39 An. 882.

But it would be stretching strictness beyond reason or-precedent to hold that this verdict does not express the exact amount as clearly as if it had been written in figures. The “ full amount of plaintiff’s claim” admits of neither doubt nor uncertainty. It is expressed in the prayer of the petition as “the sum of $7899.21, with legal interest from 22d December, 1888, until paid, subject-to the credit by $602.30, as of date the 3d January, 1889.”

But while the verdict is good, the judgment rendered thereon is unquestionably bad. It allowed $7899.21 without deducting the credit admitted on the face of the claim. This, of course, was error, a mere blunder, but one which, by the signature of the judgment, acquired executory force against the defendants, from the effect of which they had the right to claim relief by appeal. Had the plaintiff entered his remittitur in the lower court before appeal, he would have left the defendants no ground of complaint on that score. But he has only entered his remittitur in this court after the appeal has been perfected and filed here. This can not deprive defendants of their rights to have the judgment amended and, as a consequence, to have the costs of appeal cast on plaintiff.

4. The length of our opinion on the facts of the case shall be in inverse proportion to the length of time which we have devoted to a patient study of the voluminous evidence, and the minute and extended criticism of all its details' presented in the oral and written arguments of defendants’ counsel.

We think the claim of plaintiff is fully proved. The evidence in its support is complete and convincing. The experts, whose appointment was provoked by defendants and one of whom was selected by themselves, agreed in a report sustaining the plaintiff. The jury, which was prayed for by the defendants, approved it by their verdict. The judge, who presided over the trial and heard the witnesses, confirmed it by his judgment. The opposing evidence submitted by defendants is weak and inconclusive, and the infirmity of their case is rendered conspicuous by their failure to produce the only witnesses who might have effectually contradicted the testimony of plaintiff, viz: Hopkins and Boardman, who represented defendants in the progress of the work* and were familiar with all its details. These witnesses were accessible, and their absence can only be explained by the fear of defendants that, like the expert they had selected, their evidence would support the plaintiff’s claim.

5. The reconventional demand has no merit. It .is based substantially on two charges, viz: first, that the plaintiff delayed the docking of the Sentell beyond the time agreed on; second, that plaintiff consumed unnecessary and unreasonable time in making the repairs. Neither charge is sustained. The evidence conclusively shows that plaintiff informed defendants that the steamer “E. W. Cole” was to be docked before the “ Sentell,” which latter should be taken as soon as the “ Cole” was finished. This was complied with. There was some delay in getting the “Cole” in dock, owing to reception of two other vessels before her, presumably in fulfilment of prior engagements. No complaint of this delay was made at the time. The work was prosecuted diligently and with all reasonable dispatch, and though the time consumed was longer than the parties anticipated, this was due to the fact that the repairs found to .be needed were much more extensive than was supposed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to conform to the verdict of the jury, and to allow a credit thereon of $602.20 with interest from January 3, 1889, and that, as thus amended, the same be now affirmed, plaintiff to pay costs of appeal.

Dissenting Opinion.

Watkins, J.

I dissent from the opinion of the court on the ground that the proof adduced is insufficient to justify the verdict and judgment rendered.

The plaintiff is a corporation domiciled in the city of New Orleans, of which Wm. H. McLellan is president, and Orris L. McLellan is secretary; and the defendant is the Farmers’ Alliance Steamboat Line, incorporated under the laws of Illinois and domiciled there, by which the steamboat G. W. Sentell is owned, and of which B. W. Marston is master.

At the time of the transactions herein detailed, that boat was being operated in the Red and Mississippi rivers, between Shreveport and New Orleans, and was engaged in the transportation of cotton and other products to market.

It so happened that the boat was in need of repairs, and during the spring and summer of 1888 different dock companies doing business in New Orleans — of which there are several — competed for the job. Their bids were for the work to be done by the job, and the amounts proposed ranged from $2000 to $3000.

The plaintiff was one of the competitors, and secured the prize; it being possessed of full knowledge of the amounts bid by others.

The contract entered into between the mutual representatives of the parties on the 23d of October, 1888, was, substantially, that plaintiff engaged to dock the boat for $75, and was to charge $10 peiday demurrage. For all work and material, charge was to be made by the day, subject to any and all inspections the owner might see fit to make. The defendant agreed to make payment in cash, upon completion of the repairs. There was a further stipulation in the contract that the boat should be docked within ten days, or two-weeks at the farthest, and that the repairs should be completed within ten days; but the plaintiff did not dock the boat until the 23d of November, 1888, and did not complete the repairs and make delivery of the boat until the 22d of December, 1888.

Upon making delivery the sum of $7899.21 was demanded for the work done, and the boat was detained by the plaintiff because payment was refused; but the defendant corporation furnished B. W. Marston and G. W. Sentell & Co. as sureties for the payment of such an amount as might be found due, and procured her release, and subsequently this suit was brought against the principal and sureties for the full amount of the account.

The defendants resist plaintiff’s demand on the ground that it is excessive, exaggerated and far beyond the actual value of the work done and the amount really due.

In their answer they particularize numerous overcharges in the amount of materials furnished and labor performed, and specify many instances in which the account charges the prices of materials alleged to have been furnished at rates exceeding by 200 and 300 per centum their prime cost.

They specially aver that, under the contract, plaintiff had nothing to do with any repairs which were contemplated or made above the hull of the boat, and that all such repairs were made by and under the supervision of the defendants’ carpenters and their employés.

They specifically deny that any such quantity of materials was used, or any such quantity of carpenter’s work was done as is charged for in the account.

The account is hereto appended, so that if can be seen and better explained hereafter:

The account was found so unsatisfactory and altogether wanting in information that defendant’s counsel felt constrained to apply for the appointment of experts to examine the boat, ascertain the amount, value and character of the repairs which had been made, and the quantity of labor which had been performed under the contract.

For the purpose of giving the fullest information I append it also.

The defendants in their answer admit that the probable value of all the work done and all the materials furnished in making repairs on the boat aggregated about $2500 or $8000, and as a compromise offered to pay the dock company $4000, but their offer was refused.

Thereupon they set Out in reconventional demand that the plaintiff is indebted to the defendant company in the sum of $3000 in ■damages for'the violation of its contract to dock the boat immediately after the steamboat E. W. Oole, and to finish the repairs and deliver her to the defendant within ten days; and that, failing to do so and not having delivered the boat until the 22d of December, 1888, the boat lost two trips, the net profit of each of which was $1500, and of which her master and owners were unjustly deprived,- and for which defendants are entitled to judgment in reconvention over against the plaintiff.

The case was tried by a jury, who found for the plaintiff the full amount claimed, and, after an ineffectual effort to procure anew trial, the defendants appealed to this court.

Under ordinary circumstances this is an embarrassing position for a defendant to be placed in; and under extraordinary circumstances much more so.

One of the chief difficulties of the defendant was that it was compelled to go into court without witnesses of its own who possessed any knowledge of the facts, and that the cause was tried at a place remote from the master’s domicil.

On entering an appearance in court the defendants found themselves confronted with an account for $7899 worth of alleged repairs, but which did not mention an item of repairs, and which does not contain the word “ repair.”

Being necessitated to ask for the appointment of experts to examine the boat and ascertain the amount of repairs done; what they cost and the value of same; how many laborers had been employed, the time they worked and the amount paid them; the quantity of materials used in making repairs, and the value thereof — defendants naturally and reasonably expected, and had a right to believe, that the experts would through their report give a fair explanation and •synopsis of the. plaintiff’s account. But when same was produced and filed in court it did not furnish any of the data required.

As to all the details of the account it was quite as silent and mysterious as the account itself, even more so.

Their report is couched in technical terms and phrases wholly unintelligible to any one unskilled in or unacquainted with nautical phraseology.

In it I find such terms employed as “stem and apron,” “ bow and warping chocks,” “cavil cleats,” “purchase blocks,” “forward bits,” “ chock-aroundboat,” “hatch-combings,” “sheathingdeck,”' “balance rudders, tillers and bumpers,” “steering gear,” “chain posts and spreaders,” “knuckle chain braces,” “ futfcock timbers,” “knuckle clamp and rider,” “ stancheon stringers,” “ guard beams and outriggers ” — and a number of others too tedious to mention.

It is, to my thinking, not a matter of surprise that the district judge declined to homologate the report, but relegated the whole matter to a trial before the jury.

There is one feature of the report that strikes me as being still more singular, and that is that it found the value of the repairs enumerated to be $7228, only $59 less than the amount of the account,, and yet there are charged in the account the following items, viz:

whicb items are not for repairs, and were not charged in the account as repairs.

Under this state of accounts it is not surprising that weeks of time were occupied in the lower court in trying this case; that 600 pages of transcript — principally devoted to expert testimony — were necessary for its presentation to us; and that in addition to three hours, of oral argument, 108 pages of printed argument, were necessary to explain the record to us.

In the course of the trial it became necessary to have the plaintiff’s books brought into court, and defendants ruled plaintiff to produce them. From the books the defendants expected, doubtless, to obtain the data upon which the account was based, and to see how plaintiff had kept the account and entered the items day by day, and from which it was detailed to them.

I respectfully submit that the very appearance of the books produced is quite enough to stamp the whole transaction with doubt and distrust. They are diminutive, dirty, irregularly kept, and positively fail to furnish any information at all. At most they are the crudest form of memorandum books.

It passes my comprehension that the dealings of a rich corporation with steamboats and vessels of all nations of the world, which visit our great commercial metropolis, should possess no safer or more reliable depository than this.

In addition to these books there were brought up under defendants’ rule a book containing a promiscuous lot of receipts not appertaining to this case, a list of receipts for 1886 and lSSY, long prior to the instant transactions, and a “petty expense account book ” for the same years. No trace is found of plaintiff’ s account except a copy taken in a letter press book. This is all.

Before going into details I wish to attract attention to one prominent error, in my conception, that the report of the experts developed in the account.

It is alleged in defendant’s answer that the plaintiff’s contract did not embrace any repairs on the boat which were made above the hull of the boat, i. e., on deck.

This is not denied by plaintiff’s counsel, but, in a qualified way, it is admitted. Ir is apparent that it was not necessary for the United States inspectors, or those of the board of underwriters, to condemn a boat to dock for the repair of her decks and cabin, or her waterwheel, or pilot house, or her jacob-staff, or guards.

' The averment and proof are that” all such work was done under the superintendence of the boat’s carpenter and captain; yet we find in the experts’ report the following items charged and reported as ■“repairs” made in pursuance of the contract, viz:

These are items and amounts extracted from the report of the experts.

These items should not have been included in the account, as all the repairs mentioned are made above deck.

The next feature of the account to which I attract attention is the peculiarity of the items, viz:

These six items constitute the bulk of the plaintiff’s account. Now what is the character of the evidence plaintiff offered in support of them?

First as to the 8944 feet of oak, for which there is charged $626.08. As to this item we will quote from the brief of plaintiff, p. 11, viz:

“ 1. Orris I. McLellan testifies that the amount, 8944 ft. B. M., is a correct sum total of calculations made from correct data taken from books ABO, dray receipts and bills, in the following manner: The foreman, Mr. William Simpson, finding a certain piece of oak necessary to do a needed part of the repairs, first looked in the stock in the yard; if there, measured the piece correctly and charged it to the G. W. Sentell’s account, as in the books. If not to be found in the stock on hand, Mr. Simpson ordered the particular piece or pieces of some resident lumberman, and on arrival of stuff at dry dock yard the stuff is duly inspected as to quality, sizes and q’uan-. tity. If the usual duplicate receipt was sent with stuff, on the stuff being found correct in all qualities, one receipt was marked O. K. and returned to the driver; the duplicate, marked G. W. Sentell, was placed on the file. If but one receipt was sent with the stuff, a. correct copy of that receipt was either put in one of the books or on the slate kept in the office for said purpose. At such times when the stuff, so ordered, arrived when the foreman, Mr. Wm. Simpson, was down in the dock or elsewhere engaged and Mr. O. I. McLellan, the manager, was on the spot, the stuff was duly and likewise inspected and charged to the G. W. Sentell by him.
“ At the completion of the said bill of repairs, dated December 22, 1888, all memoranda, dray receipts, books and bills of all oak charged to the G. W. Sentell, and so marked, were several times duly and very carefully checked up and calculated by Mr. Orris I. McLellan, the manager, and Mr. Wm. Simpson, the foreman; and the sum total being correctly found 8944 -feet B. M., it was so charged by Mr. Orris I. McLellan in the blotter against the G-. W. Sentell, and from the blotter correctly charged in the bill dated December 22, 1888, against the said G. W. Sentell.”

Now I respectfully submit that, upon counsel’s own statement, the testimony of Orris I. McLellan proves nothing. He is the manager of .the dock company and bossed the job. What is the purport of the phrase “a correct sum total of calculations made from correct data taken from books A, B, 0, dray receipts and bills? ” This witness does not speak of this matter from his own knowledge, for he says:

“ The foreman, Mr. Wm. Simpson, finding a'certain piece of oak necessary to do a needed part of the repairs, first looked in the stock in the yard; if there, measured the piece correctly and charged it to the G. W. Sentell’s account, as in the hooks. If not to be found in the stock on hand, Mr. Simpson ordered the particular piece or pieces of some resident lumberman, and on arrival of stuff at dry dock yard, the stuff is duly inspected as to its quality, size and quantity.”

I submit that this witness’ statement is quite as desultory as the books to which he refers, and the whole of it is hearsay.

Referring to the record, I find that the witness O. I. McLellan testifies that the account is in his handwriting, and that he m$de the calculation, and “so far as his knowledge (goes) it is correct.”

That he kept the time of the laborers, and that the books show the charges. When on his cross-interrogation he was requested to state how he knew the amount of oak that was used, answered: “ We have our dray receipts. * * Those receipts are charged in a book I have here.” Then he was requested to state if he knew anything about the matter personally and he said: “Yes, I do, individually, inasmuch as these receipts are in the handwriting of the party we bought the lumber of. They are filed there, and I overlook them and make the bills out.”

“ This amount we went over twice and found (it) perfectly correct, as far as we know.” [Italics mine.]

This statement is in direct contradiction of the one he had previously made, that the receipts are charged in plaintiff’s books and that its bills are made out from them.

But when pressed for the production of the dray receipts, his answer is, “I have some which I can show you as a sample. * * * I will not say I have all of them, but I have the bills which you can see. * * * I will not say these are all, but they are the most of them, which will give a fair sample of how we worked. * * * We generally destroy these things after we check our bills up.”

When pressed for the production of the original purchase bills, he replied: “I have it, sir, in the handwriting of my foreman, as he took it from each piece ordered from Paducah.”

Referring to the books which he said he had kept himself, he was requested to state how he had derived from those books the data on which he stated the account sued on, and he replied: “Here it is, sir; my foreman’s memorandum book in Ms handwriting, which he keeps day by day, and which was checked by me, as I made the calculations.”

Recurring again to the question of dray receipts, he was pressed to produce them, and he said he did not have them; and being asked to state the reason, he said: “Because I did not expect a a suit. After we pay our bills and check them up, they are thrown away. We haven’t any of the dray receipts.”

This witness being shown the books, was requested to state whether he had any other source of information in regard to the materials which had been furnished, and he said: “ We have a slate that often the foreman will go in and mark an item on; also, he carries that book in the yard; sometimes he will go in and charge it on the slate. That slate is generally cleaned off every day. Sometimes tt is not.”

He was then asked to state who takes the record from the slate, and answered that he did, and referred to memorandum book C as the one containing it. But defendant’s counsel said that his examination of that book did not show the number of feet of lumber charged in the account, and he replied: “I told you about the slate.” He then requested the witness to state in what book that computation was put, and he replied: “ It was taken from the slate and added up on the back of old dray receipts.”

To my thinking the testimony of this witness has only served to render “ confusion worse confounded.” And at the conclusion of an extended cross-examination, he confessed that he could not tell anything particular about any single item in the contract for the boat. “ Of no item can I tell you the particular amount or time.”

Mr. Simpson’s testimony is equally unsatisfactory, and uncertain.

He says: “ Of course I know nothing about the bills, and didn’t make them. My memorandum books and the slate — that is as far as I can swear to. * * * We went over the amount of the feet together, Mr. McLellan and I, and we thought they were large. We thought these amounts were large, and went over the memorandum and tallied them.”

“ Q,. And he found them correct?

“ A. I think he did at the time.”

It occurs to me to be quite singular that, after the evidence of these two principal witnesses had been adduced, and plaintiff’s account left in impenetrable doubt, its counsel did not put on the stand some of the numerous carpenters and joiners who are alleged to have been employed in working these materials up, and making therewith the repairs on the boat, and offer to prove by them the quantity of materials actually used and its value, as well as the length of time these carpenters and joiners actually worked; the length of time which was actually required for the performance of the work, and the amount of compensation they received, respectively.

In the account there is charged $3049.37 for 871 days carpenters at $3.50 per day.

The account charges for 19 days demurrage at $10 per day — $190 —thus admitting that the boat was in dock just 19 days. Then there must have been at least 45 different carpenters who worked the full term. Perhaps there were many more.

There must have been a proportionate number of joiners, calkers, and laborers. In addition to these, there was a “foreman carpenter” who is alleged to have been paid $5 per day for thirty days, i. e., $150, and who, of all others, ought to have been fully advised as to all the details of the work. Not one of all these persons were called to the witness stand, nor is their absence accounted for.

It is a fact that is made mention of in the opinion that the defendant company’s captain and carpenter had not been called and sworn as witnesses. This carpenter had nothing to do with any work on the boat’s hull, and, judging from an item in the account sued on, viz: ‘‘As per pay roll, paid Capt. J. Boardman $403.70,” it must have been a pay roll of the joiners who worked under the boat’s carpenter, which was paid by plaintiff as a matter of accommodation, as is explained in the evidence. This theory is confirmed by the fact that there is no other pay roll which figures in the evidence, or which is referred to in the account. But even if they were charged with full knowledge of and responsibility for the whole work, the fact of their not having been offered as witnesses is fully rebutted by the absence of the greater number of plaintiff’s employés and workman from the stand.

On the contrary, plaintiff’s counsel called to the stand the two experts; but their evidence is of little value, as they could not go into details, but rested themselves content on stating that the items of their report was made up by them from an examination of the-repairs, which were pointed out to them by Mr. Simpson, the foreman of the dock company.

But this witness, Mr. Simpson, was not interrogated in regard to the repairs which are enumerated in the report of the experts. No other witness was. There is no proof that such repairs were made at all. And in this, to my thinking, consists a complete hiatus in the evidence. ’

I find that my remarks are being too much lengthened and I will conclude them by stating that I arise from a careful study of this case with the clear conviction that there is not sufficient evidence in this record to justify any judgment against the defendants. I think the verdict of the jury should have been set aside, and the cause reminded to the court a qua for a new trial; and that a board of ex-petrs, or auditors, consisting of skilled accountants, should be therein appointed to examine the books, accounts and expert evidence, and render a full and correct statement thereof for the examination and guidance of the court and a special jury.

Without discussing the defendant’s reconventional demand, I dissent from the opinion of the court for the reasons herein assigned.

The Chief Justice joins in the dissent for the reason that the evidence is altogether insufficient to establish the demand of $3049.37 for carpenter’s work and $628.08 for oak lumber, aggregating $3675.45.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,657.
    Louis Ruch vs. City of New Orleans.
    1. Sw vitudés imposed for the public or common utility, relate to the space which is left for the public use by the adjacent proprietor on the shore of a navigable river, and for making and repairing levees, roads, and other public and common works.

      2. lie who from his title as owner is bound to give a public road on tho border of a navigable water course,must iurnisli another without compensation if the lirst be destroyed or carried away; and if the road be so injured, without being carried away, that it becomes impassable, the owner is obliged to give the public a passage way on his lands as near as possible to the public road without compensation.
    3. A municipality in this State may acquire jure altar iov Is, but it must be as front or riparian proprietor of an estate. For, if ba.tture be formed in front of any loras publicus of the municipality it does not attach thereto and become aecretionary property of the municipality, for the lotus publicus is a place left open lor the conveniences of commerce, and for the use of the whole world — a thing hors. <le commerce, and which is merely subject to administration by the officers of the municipality.
    1.The principles of the Civil Code relative to rural riparian estates situated upon the borders of navigable watercourses in the State generally, have been extended by statutes to the* cities and towns in this State, and same have been frequently expounded by the decisions of this court.
    5. The right of appropriation which is recognized in the Civil Code was co-existent with the right of expropriation which is also provided for therein. All of those provisions pre-existed the Constitution. The right of appropriation exist* independently of the provision of the Constitution restricting the exercise of the power of eminent domain, and which do not relate to the police po’tyw, which is an inherent and reserved power of the State and subject to legislative control.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J.

      Rice & Armstrong^ for Plaintiff and Appellee:
    1. The city may be, as well as an individual, front proprietor. Mayor vs. XT. S., 10 Peters 717: Mmi. No. 2 vs. Orleans Cotton Press, 18 La. 122.
    2. The city, in the present instance, owns all the land in front of plaintiffs fence. Ferriero vs. City, 85 An. 211; City of New Orleans, praying, etc., 20 An. 891.
    3. Kven under the rule as to rural servitudes, the owner of the river bank alone owes the servitude of a levee and public road, and is entitled to accretions. Morgan vs. Livingston, 6 Mart. 19, 222, 286; C. C. 157, 707; see also Mun. No. 2 vs. Cotton Press,18 La. 256, 276,268; Gravior vs. Mayor, quoted in 18 La. 210; Pass vs. State, 81 An. 191.
    1. The rear estate has no accretions, and owes no servitude of public road or levee, so long as the front estate is in existence. The rear estate becomes the front estate only when the front estate is entirely carried away. Morgan vs. Livingston, 6 Mart. 222, 226; Ferriero vs. City, 85 An. 211; Cumbre vs. Kohn, 8 X. S. 575, 576; Live vs. Kightor, 11 L-u Ill, 112.

      5. Bven the riparian estate does not owe the servitude of a public sidewalk.
    6. The history of the river bank and street in question; the payment by the city for portions of land taken in the immediate locality for the same purpose; the declared necessity for public uses expressed in the resolutions authorizing the Mayor and Commissioner of Public Works, and instructing the City Attorney, similar in every respect to the resolution of 1866; the introduction of the resolutions in the council by Delavigne, who had been already paid for his property, ovidenee the city’s intention to expropriate, and not confiscate, plaintiff’s property. City of Now Orleans, praying, etc., 20 An. 394.
    7. Private property can not be taken for public uses without fair and just compensation therefor, first paid, with damages, if any; Const of State, Arts. 155, 156; C. O. Arts. 2626-2641; 7 An. 72; 7An.76; 28 An. 64,171.

      Sam’l L. Gilmore, Assistant City Attorney, and Garleton Hunt, City Attorney, for Defendant and Appellant:
    1. All landed proprietors, whose property is adjacent to a navigable stream, hold; it subject to certain conditions imposed for common utility. Dubose vs. Levee Commissioners, 11 An. 166; Bass vs. State, 34 An. 498.
    2. Such proprietors are bound to surrender to public use, without compensation, a portion of the front of their property, sufficient for roadway purposes, and in ease the road be destroyed or carried away they mustfurnish another. If there bo upon their lands works which obstruct the making of the road, these works may bo removed at their expense, at the instance of the corporation of the place. Arts. 509, ^65, 707 and 861, R. C. C.; Hanson vs. Lafayette, 18 L. 308; Bass vs. State, 34 An. 498; Watson vs. Turnbull, 34 An. 857.
    3. The intervention of a public road between the front estate and the river does not deprive the front estate of its character of riparian property. Morgan vs. Livingston, 6 M. 231-2SS; Municipality No. 2 vs. Orleans Cotton Press, 18 La. 227-8, 237-9, 243-4, 247.
    4. Thcstreets of the city are not the property of the corporation, she having no ownership of, but only a right of administration over them. Daublin vs. . Mayor, 1M. 187; Shepherd.vs. Municipality No. 3, 6 R. 349; Heirs of Leonard vs. Baton Rouge, 39 An. 273.
    5. The question of whether propeity is a riparian estate is to be determined by its present location. If it is now adjacent to the river, no land susceptible of private use intervening between it and the water; it is a riparian estate. The ease of Attius, cited in Morgan vs. Livingston, 6 M. 63; Bass vs. State, 34 An. 498.
    6. The amount of land to be taken for the front road is a matter of police or administration to be decided by the local authorities. Bass vs. State, 34 An. 498.
   The opinion of the court was delivered by

Watkins, J.

The object of this action is to restrain the city from appropriating a portion of his property, which fronts on Peters street in said city, for the purpose of enlarging the street or public roadway, if same be needed for such purposes, without making previous adequate compensation therefor, in pursuance of the expropriation laws of this State.

Plaintiff’s averment is, that his lot measures 285 feet and 9 inches on the public road, or Peters street, and has a depth of 1030 feet; and that the city authorities propose to take therefrom, for the purpose stated, and from its entire width, a quantity of land of the depth of 22 706-1000 feet on the upper line, and of the depth of 33 33-100 feet on the lower'line, aggregating a total superficies of 8059 square feet. That said property is his place of residence, and thereon is situated his dwelling and other buildings, improvements and appurtenances; and that the portion proposed to be taken for the opening or widening of a public street or roadway has upon it a fence with solid brick foundation, and many valuable ornamental and fruit trees, and a large variety of plants and shrubbery.

That this portion is the most valuable part of his property, and that the deprivation of it, coupled with the corresponding injury that will be occasioned by it to the remainder thereof, will cause him damage to the amount of $3500. That the city proposes to take and appropriate the same, without first taking due and proper expropriation proceedings, and without just and adequate compensation therefor, previously paid. That without such prior compensation, the taking of his property for the purpose intended is without the sanction of the law, and the ordinance of the City Council authorizing it violates the fourteenth amendment of the United States Constitution, and also the 155th and 156th Articles of the Constitution of •this State.

It is a fact admitted by the plaintiff, and shown by the sketch furnished by the City Surveyor, and other evidence, that the locus fronts the Mississippi river, a navigable water course, and that Peters street is the public roadway or thoroughfare adjacent to the public levee, which is on the bank of the river; and the plaintiff insists that his title from 'Tiblier describes the property as having a measurement of so many feet front on the public road, by a depth of so many feet, and that it does not call for any batture; that his property does not, therefore, enjoy any accretionary rights, and •can not-have imposed upon it any riparian burdens.

While it is not averred in the petition, it is asserted in argument that in 1866, prior to the date of his acquisition thereof, the city instituted suit against his vendor, Tiblier, in pursuance of an ordinance of the City Council, to expropriate a portion of the front of this property, and thereunder did expropriate a portion thereof, fronting on Peters street, of the full width of the premises and of a mean dept of sixty-seven feet; that for and in consideration of just and adequate compensation paid therefor, the city acquired a fee simple title to the property expropriated; and that the land thus acquired by the city was used for the purposes of a new levee, which was constructed thereon, the opening or enlarging of the street or roadway, and the construction of a sidewalk. Founded on this fact — and it is a fact — the contention, of plaintiff’s is that the city was, at the date of his purchase of Tibiier in 1871, owner of the road or street and the ground on which the levee was built, and therefore entitled to accretion or batture formations, and upon her were imposed all riparian burdens; and that, in case a greater quantity of land was needed for the purpose of further enlarging the roadway, her only recourse is to other expropriation proceedings against the plaintiff, and payment to him, as it had made to Tibiier, of adequate compensation therefor.

The defendant’s answer is a general denial. On the trial, judgment went against the city, perpetuating plaintiff’s injunction, and the city has appealed.

The judge below, in his reasons for judgment, adopted plaintiff’s theory, and held substantially:

1. That plaintiff purchased property fronting on Peters street, the public road along the banks of the Mississippi river.

2. That owing to encroachments by the river the greater portion of this street has been absorbed for levee purposes, thus necessitating the enlargement of the thoroughfare.

3. That as, under the provisions of R. C. C. 457, the levees on the borders of the Mississippi river form the banks, plaintiff is a riparian owner unless the intervening street be the riparian estate. [Italics ours.~\

4. That “the city, for the purpose of opening Peters street, had in the past seen fit to institute expropriation proceedings, and for a valuable consideration become, the owner of the soil upon which she opened the street.” Hence, “ she is the riparian owner entitled to all accretions which may happen on the river front, and consequently liable for corresponding obligations.” R. C. C. 707.

5. That “plaintiff having no riparian rights, can not be required to furnish another road without any compensation if the first be destroyed or carried away.” R. C. C. 2626, et seq.

In her application for a new trial the city denied that she ever became proprietor of the soil by virtue of the expropriation proceedings of 1866, or that she thereby became a riparian owner, chargeable with riparian burdens, such as. the servitude of way.

On this statement of the case we have for decision two questions; first, whether the city is the front proprietor and chargeable with riparian burdens, and must, therefore, expropriate plaintiff’s property for the enlargement of the public roadway on the Mississippi river front and compensate him therefor; second, whether the city ordinance involved is unconstitutional in the sense of the State and Federal constitutions.

I..

The pertinent facts are correctly outlined in part in the foregoing summarized statement; and it is only necessary to state the additional fact that is shown by the record, that between the levee and plaintiff’s property in some places there is an insufficient space for a public roadway, and for the convenient and free use of the public, and that it frequently happens that conveyances are on that account compelled to pass around the square.

The provisions of the Oode are, that “he who, from his title as owner, is bound to give a public road on the border of a river or stream, must furnish another without compensation, if the first be destroyed or carried away;” and it further provides that “if the road be so injured * * i: without being carried away, that it becomes impassable, the owner is obliged to give the public a passageway on his lands, as near as possible to the public road, without recompense therefor.” R. C. C. 707. [Italics ours.]

Other articles of the Oode indicate what title as owner binds the proprietor to give a public road-. For instance, “that servitudes imposed for the public, or common utility, relate to the space which is left for ’ the public use, by the adjacent proprietors on the shores of navigable rivers, and for making and repairing levees, roads and other public or common works.” R. C. C. 665.

The title of the Code which contains these articles treats of servitudes on land, or such' as are imposed upon owners of estates, in favor of those adjacent or of the public.

The servitude which is imposed upon an estate for the public or common utility, is the levee or public road which may be erected on the shores of a navigable watercourse.

Inasmuch as the Code declares that the adjacent proprietor of an estate situated on the shores of a navigable river must leave a space open for public use, for the making and repairing of levees, public roads and the like, that such proprietor must furnish another roadway, without compensation, if the first one be destroyed or carried away, or if it be so much injured that it has become impassable, it is clear that by the expropriation-proceedings in 1866 the city acquired no greater right or better title to the public roadway or upon the adjacent estate than that she possessed under the law.

In point of fact, the city did not acquire an estate, only the public roadway on the river bank.

The contention of plaintiff’s counsel that she acquired afee simple title to the soil, and thus became proprietor, leads to a confusion of terms; for a roadway and a levee are mere servitudes which are imposed upon estates, and are not themselves estates or properties of a marketable or commercial character.

To say that, by the expropriation proceedings of 1866, the city became owner of a public road on the banks of the Mississippi river, in front of plaintiff’s property, is to say she purchased what she was entitled to take without any compensation. But she did not thereby become the riparian proprietor, andbatture formations could not attach to such an acquisition; and the fact that she did expropriate and pay for one roadway could not impose upon her the obligation to expropriate and pay for another one.

In the expropriation proceedings referred to — the City of New Orleans praying for a jury of freeholders, 20 An. 394 — the court stated that they wished it distinctly understood that they did not consider that ease “a precedent as to the mode to be provided and the right involved in making new levees in New Orleans;” and they said: “We decide it simply upon its peculiar pleadings, and do not think the question of servitudes and of the rights and obligations of riparian proprietors are properly raised for decision;” thus completely negativing its value as a precedent in this case.

The right of appropriation proceeds upon the principles decided in Remy vs. Second Municipality, 11 An. 161, that the riparian owner enjoys his property sub modo; i. e., subject to the right of the public to reserve space enough for levees, public roads and the like. Over this space the front proprietor never acquires complete dominion. It never passes free of this reservation by a deed to a purchaser. Pecot vs. Police Jury, 41 An. 706; Heirs of Leonard vs. Baton Rouge, 39 An. 275; Morgan vs. Livingston, 6 M. 231; Municipality vs. Cotton Press, 18 La. 239.

And notwithstanding one purchases property, at the time removed from the river bank, he takes title subject to the happening of a contingency necessitating its appropriation, in whole or in part, to the public use. R. C. C. 707.

In Bass vs. State, 34 An. 494, this question was carefully and exhaustively considered, and, on ample reason and authority, we held that when, by the mutations of the bank, a navigable water course reaches the land of a proprietor, he becomes subject to all the legal servitudes imposed upon those who were originally riparian owners; and that “ lands thus brought under such servitudes must, like the land of which they form a part, be yielded up without compensation.”

That the ownership of riparian estates has been thus subordinated to public use from time immemorial is attested upon the authority of text writers and the French Code.

Domat says “the banks of rivers, highways, etc., are things public, the use of which is common to all particular persons. * * * But it is the sovereign that regulates them.” Domat, Sec. 116, p. 150.

The text of the French Code is, ‘ ‘ Servitude established for the public benefit or that of the commune, has for its object, footways by the side of navigable rivers * * * the construction or repairs of roads, and other public works, or those relating to the commune.” Code Napoleon, Arts. 650, 556.

As stated by Justinian, “the banks belonged to the proprietor of adjacent soil; but the use of them, for the purposes of navigation and otherwise, was open to all. The proprietors, therefore, could alone reap the profits of the soil, but if they attempted to exercise their rights so as to hinder the public use of the bank they would be restrained by the interdict of the praetor.” Lib. 11, Tit. 1, p. 159.

That author ascribes to Cicero the expression, that “the public use of the banks of a river is part of the law of nations, just as that of the river itself.”

The principles* of the code and the decisions quoted from principally relate to rural riparian estates situated on the borders of the various navigable streams of the State, and for many years it was a mooted and difficult question, as the early jurisprudence of this court will show, whether they should be applied to the municipality of New Orleans. And it was differently decided and left an unsettled question until the Legislature specially extended the precepts of the Code, relative to riparian property generally, to riparian estates within the cities and towns of the State. Accordingly by a legislative enactment in reference to the faubourg St. Mary — a property situated above that of the plaintiff and on the same side of the river —it was provided ‘ ‘ that the batture, or space of ground adjoining the Mississippi river, and lying between said river and the street * * fronting said river, shall be left open and so kept for the accommodation of the public and the convenience of commerce.” Sec. 3, Act 257 of 1850.

That act was supplemented in 1853 by another which provided “that whenever any riparian owner of property in the incorporated towns and cities of this State is entitled to accretion, and batture has been formed in front of said owner’s land more than is necessary for public use, which said incorporation withholds from the owner, he shall have a right to institute suit against said incorporation for so much of said batture as may not be necessary for the uses of commerce and navigation, and for the necessary public highway, and other public uses, etc.” Sec. 1, Act 333 of 1853. .

Construing those statutes and others of similar import our predecessors said in Remy vs. Second Municipality, 11 An. 161:

“The several acts of the Legislature giving to the city authorities power over the batture were intended to enable them the better to enforce their administrative authority in behalf of the public, who were entitled to the use oí the batture for the purposes of commerce; they were never intended to change or disturb the rights of property. * * ' * . • * * * * * * The civil possession of the representatives of Remy was not disturbed by the exercise of the police and administrative powers of the city authorities over the property in question, as they still possessed it in the only manner in which any owner could possess property similarly situated.”

In that case the court made a special reservation in favor of the’ city of the “ possession, for the purposes of administration, of such portion of the property as may be subject to the servitudes established by existing laws on land fronting on the Mississippi river,, within the limits of the City of New Orleans.”

It was the same principle .which controlled our decisions in Sweeney vs. Shakspeare, 42 An. 614, and Meyers vs. Mathis, 42 An. 471.

And like principles were maintained in Kennedy vs. Municipality, 10 An. 55, and Gaiennie vs. Municipality, 11 An. 738.

They are not inconsistent with those announced in Ferriere vs. City, 35 An. 209, and Donnovan vs. City, 35 An. 461, lor they maintain that a sale of a city lot fronting and ending on the levee, and not on the river,” does not carry alluvial accretions — a question which does not arise in this case, as already intimated, because plaintiff acquired from Tiblier in 1871 only a depth of 1030 feet, while the latter acquired from D’Auquin in 1852 a depth of 1085-feet, on one side and 1103 feet on the other, thus demonstrating that 'plaintiff’s property fronted on the river bank, and that there had been no batture formation in front of it during the nineteen years, of Tiblier’s ownership.

It was doubtless this condition of things that caused expropriation proceedings to be taken against Tiblier in 1866 for the enlargement of the roadway. Hence there is no question in this case of the ownership of batture formations, and it is unnecessary to inquire where or in whom the fee may reside in future accretions, for it is settled that the use of the batture between the levee and the stream is in the public, the property in the soil being in the adjacent proprietor.” Barr vs. City, 22 An. 612; Cochrane vs. Fort, 7 N. S. 625; Livingston vs. Herrman, 9 M. 721; Cambre vs. Kohn, 7 N. S. 578; Circe vs. Rightor, 11 La. 140.

H.

In view of the tenor of our discussion of the first branch of this ease, and the authorities cited, it is evident that our conclusion will be that the city was authorized to take the plaintiff’s property to-the extent same may be required for public use in the enlargement of the public roadway, immediately in front of it, and this she may do in virtue of the right of appropriation vested in her by the police power of the State.

This right of appropriation, which is recognized in the quoted provisions of the Code, is and was co-existent with the right of expropriation, as provided for in R. C. C. 2626, et seq., and R. S., Secs. 1149 et seq.

All of those provisions preexisted the Constitution, with the 155th and 156th articles of which the right of appropriation is said to con-, flict. This of itself leads to the supposition of their entire compatibility. But the two principles are of well-recognized and ancient origin one being an exercise of the police power, any loss sustained thereby entitling the injured party to no recompense, the same being Aamnum absque injuria; the other being the exertion of the right of .eminent domain, the damages entailed being compensable. Bass vs. State, 34 An. 494; Chaffe vs. Trezevant, 38 An. 746.

The enjoined proceedings were evidently undertaken in pursuance of the police power of the municipality, the object being confessedly the enlargement of the public roadway on the Mississippi river front and within city limits; hence the ordinance was constitutional and valid, for unquestionably the city had ample authority for the enactment of an ordinance of the character of the one promulgated. The provisions of the Constitution placing restrictions upon the exercise of the power of expropriation have no reference to the police power of the State, or of a municipality in the State. The latter,is necessarily an inherent and reserved power of a State, and is practically unlimited — and its exercise is subject to legislative control alone.

The objection of unconstitutionality of the city ordinance enjoined is not well taken.

Upon the whole our conclusion is that the judgment appealed from is erroneous and must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the plaintiff’s injunction be dissolved and his demands rejected, and that the city authorities be decreed entitled to proceed under the ordinance complained of, and in conformity ■ to law and the views herein expressed; and it is finally ordered and decreed that the plaintiff and appellee be taxed with all costs of both courts.


author: McEnery, J.

text:
    No. 10,805.
    Amelie Laplace vs. John Laplace et als.
    Tax mortgages, privileges and liens are not suoli incumbrances as are contemplated in Art. 684, C. P.

      Where there are notes secured by the same mortgage, and one is paid under an agreement that the party who advances the money to pay it shall have a preference over the original holder of the note, this agreement does not give the transferee any preference over the holders of the other notes, other than the party transferring it.
    APPEAL from the Eleventh District Oourt, Parish of Natchitoches. Pierson, J.

      Scarborough & Carver for Plaintiff and Appellee:
    On Motion to Dismiss.
    1. Where the appeal is taken by petition out of court, citation is necessary. 581, 582, O. P.
    2. An appeal bond which does not secure the costs of both courts is fatally defective, and the appeal will be dismissed. C. P. 578, 579 ; 33 An. 421; 4 An. 3; 13 An. 417; 28 An. 805.
    ON THE Mehixs.
    3. Article 684, O. P., which denounces nullity against a sale under execution where the bid does not exceed the mortgages, having a preference over the seizing creditor, has exclusive reference to prior conventional and special mortgages. 38 An. 470.
    4. It does not refer either to general legal mortgages or to concurrent special mortgages. 38 An. 470 ; 6 R. 103; 16 L. 171.
    5. The mortgage note in this case was no bar to the adjudication, because (1) it was paid; (2) if not paid, it boro not a prior but a concurrent mortgage. 6R. 103; , 16 L. 171.
    6. Taxes of 1881 to 1888 are not secured by a privilege, but only by a legal mortgage. 41 An. 183; Acts of'1880, p. 95; 1882, p. ISO; 18S6, p. 145.
    7. Tax mortgages do not affect third persons unless recorded. Const. 1879, Art. 176.
    8. Tax mortgages, even when recorded, present no bar to an adjudication under Art. 684 C. P., because they are legal and general mortgages, and that Article has reference only to special and conventional mortgages.
    9. Where taxes do bear a privilege, this is prescribed (if unrecorded) in 3 years. Const. 1879, Art. 176; 86 An. 767 ; 40 An. 586; 42 An. 483.
    10. Enough of the taxes and their securities in this case were prescribed to reduce the remainder so low as that the sum of same added to the $183.83 note was less than $400.
    11. Taxes are not such privileges and mortgages as are contemplated by Art, 684 O. P., and hence these encumbrances do not in any case bar an adjudication for less than their amount.
    12. If the seizing creditor be a vendor, ho may require a sale at any price and is exempt from the rule laid down in 684 C. P. See 685 C. P.
    13. The lessee can not dispute the title of the lessor.
    14. The proof of error or duress must be clear and positive to relieve parties from the effects of their acts.

      Cunningham & Tucker for Defendants and Appellants:
    Properly can not be properly adjudicated at sheriff's sale, unless the price bid exceed the amount of anterior privileges and special mortgages. C. 1’. 683, 684.
    The law makes it the duty of the sheriff to pay all taxes duo on the property at the date of sale. 17 An. 44.
    A mortgage in favor of which the seizing creditor has agreed to waive and concede priority is an “anterior” mortgage, although in the same act and"briginally concurrent with that of the seizing creditor. 40 An. 479; 15 An. 630; 2 An. 617.
    Property can not be validly sold at sheriff’s sale for less than the amount of a prior and superior mortgage, and anterior privileges, although such prior and superior mortgage be given in the same act with that of the seizing creditor 15 An. 030.
    Property can not be validly sold at sheriff’s sale unless the price bid exceed the sum of the costs, taxes and anterior privileges and special mortgages, so that the seizing creditor realize something upon his debt. C. P. 083, 684; 1 N. S. 600; 4 N. S. 162; 7 JÍ. 406; 1 An. 32, 330, 426 ; 7 An, 593 ; 9 An. 216, 214 10; An. 645; 10 R. 110.
    A vendor who binds herself to pay her share of the taxes can not foreclose her mortgage against the property without complying with her obligation, and relieving the property of the incumbrance.
    More particularly can she not do so when the property has been sold and adjudicated,to the State for non-payment of the taxes, and the ostensible title is therefore in the State at the time of the sale.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff and the defendants owned in indivisión certain property in the parish of Natchitoches. They made an amicable division of said property, and in order to equalize amounts the defendants executed in favor of plaintiff their two notes in solido — one for $183.33, due September 1, 1887, and the other for $366.67, due July 18, 1888, and secured the same by mortgage and vendor’s privilege on the property received by them in the partition.

The first note was paid to plaintiff. It was agreed between the parties that in case “it became necessary for them (mortgagors) to borrow money, she (plaintiff) hereby agrees to waive her mortgage in favor of the party from whom said money is borrowed, said money to be borrowed not to exceed $250.”

A like waiver was made in case it was necessary to borrow money to pay the second note. Each party also agreed to pay his share of the taxes and costs of partition. All the taxes were not paid, and the property, or portion of it, was sold to the State and redeemed by the mortgage creditor.

The second note not having been paid, the plaintiff foreclosed the mortgage and the property was adjudicated to her. The defendants refused to deliver possession of the property, Hence this petitory action.

In their answer the defendants allege that the property did not sell for a sufficient amount to pay the special mortgage and privilege existing on the property, prior in rank to the seizing creditor’s special mortgage and vendor’s privilege. For this reason they allege the absolute nullity of the adjudication to plaintiff.

The prior special mortgage claimed to exist on the property is the waiver of the mortgage rights in favor of the party lending money to pay the first note. It is claimed that the defendants borrowed the money to pay the first note.

The two notes were secured by the same mortgage. They were concurrent. The property was sold under the mortgage which secured both notes. The mortgage is indivisible, and the transfer of the note to the party lending the money did not create any special mortgage, separate and apart from the mortgage securing it. The effect of the agreement was, out of the procéeds of sale, to give the party taking up the note a preference over and above that of the seizing creditor. If the second note had been transferred to a different party who advanced the money, the holder of the first note would not have a preference over him.

They would both be protected equally by the mortgage securing both notes.

Hence the transfer of the first note did not give it any greater privilege or 'a higher rank than the mortgage securing it. The only effect of the transfer or sale of the note was to give it a preference in the proceeds of the sale of the property over the party transferring it, and who at the time held the other concurrent mortgage note.

The privileges and mortgages contemplated by Article 684 of the Code of Practice do not include taxes. The law which declares that the tax mortgage, privilege and lien shall prime and outrank all other mortgages, privileges, liens and encumbrances, means that they shall in no way bar the collection of the tax. No right asserted under them can resist the tax which rests upon the property.

The collection of taxes is controlled by special laws.

Non-payment of the tax did not invalidate the sale or adjudication. Pasley vs. McConnell, 38 An. 470.•

But the sheriff is bound to pay the tax before making the tax deed. The course pursued by the sheriff in this case was in accordance with that of the sheriff in the case of Friedlander vs. Bell, 17 An., p. 42. He adjudicated the property and paid the taxes from the amount paid by the adjudicatee before making the deed to the property.

The law requires the sheriff to see that the taxes are paid on immovable property before he executes any act for the sale or transfer of the property. The tax ought to be paid before the adjudication as this act transfers the title to the property.

This law, R. S. 3615, which has been continued in the several revenue laws, contemplated that the taxes shall be paid before the adjudication of the property. Therefore the tax is not' such a mortgage or privilege resting on the property, on the day of sale, as to require a bid to reach the amount in addition to special mortgages and privileges, prior to that of the seizing creditor. If the sheriff fails to collect the tax himself, or is not furnished with the evidence of its payment, he must pay it out of the proceeds of the sale of the property regardless of the amount for which the property sold.

The State nor the municipality can in the first instance institute suit to enforce the tax mortgage or privilege. It has, therefore, nothing in common with the mortgages and special privileges eon-' tained in Art. 684 of the Oode of Practice.

In the instant case the seizing creditor was the vendor of the property, and this privilege was secured by the act of mortgage. The plaintiff had the right to require that the property be sold at any price to pay him.- C. P. 685.

There was an agreement after the sale to pay . five dollars per month rent for the property by the defendants. This was urged as estoppel against defendants. It was a sufficient plea; but under the peculiar circumstances under which the lease was made, we have not felt authorized to enforce it against them.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,773.
    Mrs. Theonise Macias, Wife of Pierre Rousseau, vs. L. E. Lorio, Sheriff, et als.
    1. The demand was sufficiently set forth. If the defendants needed the particu lars they mention to enable them to' make their defence, they should have required plaintiff to state her demand with more particularity. As it is, the defendants appear to have been sufficiently placed on their defence.
    2. It having been decided in a previous appeal that plaintiff had a right of action, it was not possible, afterward, to defeat the right by tendering bond of indemnity executed after it had been decided that such a bond should have been required under Act 37 of 1882.
    3. The sale not being a fraudulent and simulated; the vendor being divested of title a seizure could not be made.
    4. It is not proven that the officer in executing the writ of attachment acted wantonly or in malice; the value of the property taken and sold is fixed at the minimum.
    A PPEAL from the Twentieth District Court, Parish of Lafourche. Guión, J.

      L. F. Southon for Plaintiff and Appellant:
    Where title and possession concur in a vendee, creditors of the vendor are absolutely prohibited from attaching or seizing. This rule is absolute, and applies to movable property as well as to immovable property. 31 An. 862; 33 An. 26, L026; 35 An. 336; 38 An. 248; 39 An. 103, 488. 608; 41 An. 735.
    When the sheriff is notified at the time of the seizure, or immediately thereafter, of the ownership of one not a party to the writ, and takes no stops to secure an indemnity, bond, but proceeds in disregard of such ownership, he becomes directly responsible to the real owner and may be sued.
    After such suit is filed and contested by him by exception or pica, he can not then procure an indemnity bond and claim exemption under R. S., Secs. 3579, 3584.
    He must know the property seized belongs to defendant in writ. 4, R. 39, 136; 41 An. 300; 7 An. 524; 34 An. 58.
    The illegal seizure of a third person’s property is a quasi offence, and the sheriff andplainliff are bound in solido as co-trespassers. 2 N. S. 34; 6 R. 382; 5L. 39; 2 An. 930; 4R. 39; 15 An. 491; 24 An. 339; 13 An. 260; 30 An. 478; 7 An. 524; 8 R. 112
    When the issue presented bv the pleadings is one of pure simulation vet non, all the evidence tending to prove fraud must be limited to the central fact of sim - ulation, the sole issue before the court. 31 An. 862; 39 An. 488; 40 An. 327.
    Where there is an actual and real sale, followed by possession, a judgment creditor of the vendor can not make a direct seizure of the property-because of the fact that the one to whom the conveyance was made was not purchasing for himself, but for others. To justify such a seizure the sale in question must be a pure simulation. 36 An. 179.
    In the assessment of damages in cases of offences and quasi offences and quasi contracts much discretion is left to the judge or jury, without proof of the exact amount. O. C. 1934, No. 3; 2 L. 76; 10 An. 33, 699; 19 An. 362; 17 An. 20.

      Where there is no justifiable cause for an act which does damage, the law Imputes malice. 37 An. 881; 39 An. 15.
    In estimating damages in a case like the present, we must consider:
    1. The value of the property taken. The highest estimate will be adopted when’ property is tortiously taken. 25 An. 414. '
    2. The breaking up of plaintiff’s business and the profits of which she was deprived. 34 An. 58.
    3. The mental anxiety and distress caused to the plaintiff, her trouble and mortification. This is actual damage. 33 An. 6; 39 An. 15.

      Knobloelv & Moore for Defendants and Appellees:
    1. When the sheriff obtains a bond of indemnity and duly transfers same, before default, to the third person claiming to be the owner of movable property levied upon, the suit for damages against that officer must be dismissed. Rev. Stat. 3579-3583; Act No. 37 of 1882.
    2. On acjuestionof fact, when the evidence is conflicting, the opinion of the judge who tried the case and who saw and heard the witnesses, and is supposed to know them, is entitled to great weight and ought to control.
   The opinion of the court was delivered by

Breaux, J.

A voluminous record discloses that plaintiff’s son became her agent in 1888. That in January of that year he had an interest in a store in Thibodeaux, conducted entirely in the name of another.

That in February the parties disagreed and there was a dissolution of the business venture.

■That the retiring partner was allowed to take out the daily cash receipts, during a number of days, to an amount equal to his interest.

In that manner the settlement with him was made.

As he was retiring and the only known interested party, and the son deemed it to his interest, the store was transferred to the mother, the plaintiff in this case.

In April, 1888, it was sold by plaintiff to L. A. Gourdain.,

During this ownership of the latter, about two months, one Mel-chert became an interested party, but soon dissolved his connection with the establishment.

Oourciere’s name also figures as a part owner.

On the 18th of June Gourdain sold to plaintiff’s agent.

The price was $1400 — cash $500 and $900 in notes.

She assumed charge through the agency of her son.

On the 18th of that month the store was closed, under a writ of attachment, issued in the case of Philip Thompson vs. Gourdain and Courciere, and the goods and merchandise were attached and seized to satisfy an amount due by the former to the latter. The deed of sale, Gourdain to plaintiff, was in' the iron safe in the store and was taken possession of by the sheriff’s deputy who made the seizure.

Plaintiff’s agent and two other witnesses testify that he informed the deputy at the time that the property belonged to the plaintiff.

The verity of this testimony is denied by two of defendant’s witnesses, who, with other witnesses, testify that the property did not belong to plaintiff, that it was the property of her son.

The theory of the defendant is that he sought to evade the pursuit of his creditors by placing the property in the name of the plaintiff.

That she was without interest to bring this suit.

The property attached was sold at public auction by the sheriff, it was perishable property, and brought |850.

;H sfs ¡¡t i{s sfc

An exception of no cause of action and estoppel was filed.

On appeal to this court, in the year 1889, it was decided that plaintiff had a cause of action, and if the sheriff desired to protect himself under Act 87 of 1882 “it was his duty to require the claimant to make the affidavit prescribed in the law as a basis for his exacting from the plaintiff in suit the bond of indemnity.” Macias vs. Sheriff et al., 41 An. 300.

To this extent the issues are settled on appeal and we must accept as correct the conclusion reached.

The ease was remanded.

% ¡¡: :i: '¡¡i ¡¡t # ¡¡t

The first ground of defence presented after the case had been remanded was that no action could be maintained against the defendant, a bond of indemnity having been furnished by the seizing creditor, Philip Thompson, under the provisions of Act 37 of 1882, and by the sheriff assigned to the plaintiff; the effect of which is, they contend, to release the sheriff and his sureties.

The plaintiff declines to accept the bond.

The court a qua decided that the indemnity bond did not affect plaintiff’s rights, they having been determined on this point in the previous decision of this court.

The question of fraud and simulation by plaintiff as against Thompson’s claim did not arrest the attention of the court a qua, but the matter at issue was treated as an attempt on the part of the agent, Eugene Rousseau, to protect himself (he being an insolvent) from his own creditors by carrying on business in the name of his. mother, the plaintiff, who was therefore, the court held, without interest to stand in judgment, as the property really belonged to the-son. Prom the judgment decreeing that the property belonged to the son, Eugene Rousseau, the plaintiff appeals.

* * if: * * *

Bill op Exceptions..

The defendants objected to plaintiff’s testimony in so far as relates, to ownership of the property.

The plaintiff sets forth the character of her ownership at some length, such as that through negotiations carried on in her name, through her son and recognized agent, Etienne Rousseau, she acquired a stock of goods and was carrying on business.

The defendant objected to her evidence on the ground that there was no allegation of the name of the person from whom the purchase was made; nor with reference to the origin of the title.

There was no plea of vagueness formally presented, nor prayer for bill of particulars.

If the defendant needed particulars to enable him to prepare his defence, he could have required more accuracy in the demand. Davis vs. Madden, 27 An. 633; Lewis vs. Mieston, Morrison & Co. et al., 26 An. 707; Arrowsmith vs. Durell et al., 14 An. 849.

The testimony was properly admitted.

With reference to the bond of indemnity executed by the seizing creditor in favor of the sheriff and which he has offered to assign to the plaintiff.

It appears to have been executed on the 15th day of March, 1889.

It was filed in the clerk’s office on the 25th of March, 1889, after the decision of this court.

It having been decided that plaintiff had a right of action, it was • no longer possible to defeat' that right by tendering a bond of indemnity.

The officer was notified that the property was owned by one not a party to the suit; he nevertheless proceeded with the suit and thereby became responsible.

The plaintiff in whose name the deed of sale was executed, who was in possession, claimed the property as her own.

********

The testimony failed to prove the allegation of defendant’s answer, that the purchase was a fraud and simulation on the part of plaintiff to protect Gourdain & Courciere.

The cash portion of the sale was paid, and it is not satisfactorily shown that there is any sei’ious gi’ound to contest the consideration of the -notes due by the plaintiff for the credit portion. They are unpaid, but their collection is earnestly expected.

* * * *****

The judgment appealed from did not maintain the attachment, but decided that plaintiff was without interest to maintain its illegality.

The argument of defendants’ counsel is principally in support of the correctness of the judgment.

In 1888 plaintiff appointed her son Etienne her agent.

He in that capacity sold the store which was in plaintiff’s name.

On the thirteenth day of June, 1888, it again became hers by purchase, as mentioned in the first part of this decision.

A few days after her ownership under the last sale had commenced, and after she had gone into possession, the property was attached and seized by Philip Thompson, a third person, to pay and satisfy a debt of Gourdain and Courciere to him.

Whatever fraud may have been committed by the latter, it is not shown that plaintiff was a pax’ty.

The son’s testimony, the agent and that of a brother, also the instruments of writing, make it evident that the plaintiff had the interest of an owner.

The son, to whom it is contended the property belongs, testifies that it is not his, but his mother’s.

This testimony is not uncorroborated.

If part of the funds applied to the payment of the cash p’ortion of the sale were furnished by the son, this would not be cause to divest her of her ownership, particularly when the question arises between her and the plaintiff in attachment proceedings, to which she is not a party.

The sale is not wanting in reality, in so far as the attaching creditor is concerned.

The demand of the defendants is not to have title to the property recognized as theirs, nor to have the proceeds applied to the payment of creditors, but to have the title decreed to be in another than the plaintiff, and thereby to defeat the suit.

To this end it is not shown that plaintiff is without interest.

Let us concede that the sale was made to the son, it does not give any greater rights to the attaching creditors.

But it was made to the plaintiff.

We will not be understood as deciding that the attaching creditor could not aver and prove the title fraudulent under Act 46 of 1886, but we hold that he may, and thereby re-affirm the case of Schilte vs. Frese, sheriff, 42 An. In the last mentioned case the fraud and simulation were proven, while in the case under consideration the preponderance of evidence does not support such a conclusion.

Having reached this conclusion, it devolves upon us to consider and determine the amount plaintiff should recover.

The officer’s acts were not wanton and malicious.

The functions of his office at. times require diligence, and he has delicate responsibilities imposed upon him.

When malice is not shown and no intention to commit a wrong, his hasty acts should not be too severely judged.

In the case at bar the actual value of the goods and merchandise attached will be the measure of damages.

“The sheriff is only liable for such damages, arising in the discharge of his official duty, as shall be proved to have been actually sustained.” William Bogel vs. John M. Bell, 15 An. 263.

Plaintiff claims profits she would have realized if the store had not been closed; for loss of business, of credit, and other damages. We are not impressed by the allegations made to recover on these grounds, nor by the testimony admitted in their support.

Plaintiff may have been confident in the future of the business, decidedly inore than the facts warrant.

The changes of ownership have been so frequent, there was such a want of permanence in the business, that we can not conclude that compensation should be allowed for these alleged causes of action.

While she is not estopped from recovering the actual value of the property, we can not avoid recalling that her opposition to the attachment and sale was not as pronounced and active as it could, without impropriety, have been.

There were acts of carelessness, as an owner, which must relieve the sheriff from considerable responsibility.

Among them we will mention as an instance the fact that the license to the United States Government remained unchanged, and no steps, after the purchase, had been taken tó secure another.

The prosecuting creditor is not before the court; as against the sheriff at whose instance he acted, we will fix the minimum amount proven as the value of the property.

It was appraised in the first place at $1200; afterward at $1100. It was sold at auction for $850.

We accept the last amount in fixing, the value, and the extent of defendant’s responsibility, together with interest and costs.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered; it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff against the defendants, condemning them in solido to pay to her the sum of $850 with interest thereon at the rate of 8 per cent, per annum from judicial demand, and that defendants pay costs of both courts.