text:
    No. 3492
    Second Circuit
    O’DONNELL v. FORTUNA OIL CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    (May 20, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Long, Fields and O’Neal, of Shreveport, attorneys for plaintiff, appellee.
    Pugh, Grimmett and Boatner, and J. M. Marcantel, of Shreveport, and Spearing and Mabry, of New Orleans, attorneys for defendant, appellant.
   WEBB, J.

T. J.-O’Donnell was awarded compensation under the Employers’ Liability Law (Act No. 20 of 1914 as amended) in the case of T. J. O’Donnell versus For-tuna Oil .Company, which judgment was affirmed on June 27, 1925, (T. J. O’Donnell vs. Fortuna Oil Company, 2 La. App. 462), and on September 2, 1928, the Fortuna Oil Company proceeded by rule to have judgment (modified under the ¡provisions of section 20 of the statute (as amended by section 1 of Act No. 85 of 1926), which provides:

“That a judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a Judge of a Court which rendered the judgment sought to be modified, at any time after six months after said judgment of compensation shall have been rendered by the Judge of the trial Court it shall be reviewed by a judge of the Court that rendered the judgment sought to be modified upon the application of either party, on the ground that the incapacity of the employee has been subsequently diminished or increased, or upon the ground that the judgment was obtained through error, fraud or misrepresentation.
“In such cases the provisions of paragraphs 1 and 3 of Section 9 and Section 10 with reference to medical examination shall apply.”

Plaintiff in rule, Fortuna Oil Company, alleged that it had paid O’Donnell compensation in an amount in excess of that to which he was entitled, and further, that O’Donnell had fully recovered from the injury sustained by him which was the basis of the award of compensation, and that O’Donnell had been employed by the Atlantic Oil Company as a blacksmith since the judgment for compensation was rendered, in which employment he worked seven days a week, at a wage of seven dollars per day, and it is prayed that the judgment for compensation be modified by decreeing that O’Donnell was not entitled to further payments of compensation.

The judgment sought to be modified was based upon a finding that O’Donnell had been partially disabled to do work of any reasonable character, and the amount of the weekly compensation was fixed at sixty per centum of the difference between the weekly wage which O’Donnell was receiving at the time of the accident and injury,'and the amount which it was found he was able to earn thereafter, and the period of compensation was fixed for the period of disability, not to exceed three hundred weeks, in accordance with clause (c) subsection 1, section 8 of the statute, as amended by section 1 of Act No. 247 of 1920, which provides that:

“For injury producing partial disability to do work of any reasonable character, sixty per centum of the difference between wages at the time of the injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

Appellant, Fortuna Oil Company, urges that the judgment discharging the rule should be reversed, for the reason that the original judgment fixing the period of compensation during the period of disability, not to exceed three hundred weeks, was erroneous in that the period of compensation should have been fixed during the period of disability, not exceeding one hundred and fifty weeks, and further, that the evidence offered on trial of the rule established that O’Donnell had recovered from the injury and partial disability resulting therefrom.

The injury sustained by O’Donnell, for which compensation was awarded him, was an injury to the middle finger of his left hand, and the Fortuna Oil Company contends that, even though' it be conceded that the injury to the finger involved the hand, the period of compensation should not have been fixed for a period exceeding one hundred fifty weeks, under paragraph (5), clause (d), subsection 1, section 8 of the statute, as amended by section 1 of Act 247 of 1920, which provided that for the loss of a hand the period of compensation should be one hundred fifty weeks, citing in support of its position the decision in James vs. Spence & Goldstein, Inc., 161 La. 1108, 109 So. 917, in which, it is claimed, it was held that where disability results from injury to a member, as the fingers or- hand, and compensation is allowed on the basis of disability, the period of compensation should not exceed that fixed by the statute for the loss of the member, and appellant, Fortuna Oil Company, seeks to have the judgment awarding O’Donnell compensation reviewed and the period of compensation fixed at not exceeding one hundred fifty weeks, and thus be relieved of further payments, as It had already paid O’Donnell compensation for a period in excess of one hundred fifty weeks.

Counsel do not cite any authority which would authorize the proceedings had and judgment rendered therein to be thus reviewed, and being of the opinion that the judgment was conclusive of all matters of fact and law which were or could have been considered at the time "of the trial, the judgment cannot be questioned on an application to modify the decree (Estate of Beckwith vs. Spooner, 183 Mich. 323, 149 N. W. 971, Ann. Cas. 1916E, 886) where it is not alleged to have been obtained through error superinduced by fraudulent practices or misrepresentation, (Section 20, Act No. 20 of 1914, as amended; article 607, C. P.)

Therefore the only question presented by the rule to modify the judgment, was whether or not the partial disability to do work of any reasonable character had ceased to exist since the judgment awarding compensation, or that at the time the rule was tried O’Donnell was not partially disabled to do work of any reasonable character.

It is conceded that the question raised is one of fact, as to which the evidence is conflicting, and the error assigned is that the court did not give due weight to the evidence introduced by the Fortuna Oil Company and especially the evidence which admittedly established that O’Donnell, a short time prior to the rule being filed, had been employed by the Atlantic Oil Company as a blacksmith at a wage equal to that which he had received when he was employed by the Fortuna Oil Company, and that he had continued in the employment of the Atlantic Oil Company for a period of seven days, when he sustained an injury for which the Atlantic Oil Company was paying him compensation.

The judgment awarding compensation on the basis of partial disability recognized the fact that, at that time, O’Donnell was able to earn some wages, and we do not think that he had for a short time earned as much as he had earned at the time of the injury could of itself be held to prove that the partial disability found to have resulted from the injury had ceased to exist, and the evidence being conflicting as to whether O’Donnell had used or could use the finger which had been injured, in the subsequent employment, we cannot say the judgment recalling and discharging the rule was erroneous, and it is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,737
    Orleans
    KUNNES v. KOGOS
    (January 7, 1929. Opinion and, Decree.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Robt. L. Hickerson and Herve Racivitch, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff filed with the clerk of the first city court for the parish of Orleans a petition containing a moneyed demand for $150, bearing the heading, "In the Civil District Court in and for the Parish of Orleans, State of Louisiana,” and addressed, “To the Honorable the Judges of the Civil District Court in and for the Parish of Orleans, State of Louisiana.” To this petition an exception to the jurisdiction was filed by defendant, whereupon plaintiff sought and obtained the permission of the court to file a supplemental petition, which was addressed to the “First City Court for the City of New Orleans, State of Louisiana.” After the filing of the supplemental petition, the exception was tried and overruled, and judgment rendered, in favor of plaintiff on the merits. No answer was filed by defendant, who relies solely upon the exception to the jurisdiction.

' Code of Practice, art. 172, provides, among other things, that the petition must mention “the name or title of the court to which it is addressed.” In Watson vs. Pierce, 6 Mart. (N. S.) 417, a petition addressed to the district court for the parish of West Feliciana was filed in the court at East Baton Rouge. The Supreme Court, in approving the action of the trial court, said:

“We think the judge below did not err. His refusal to give judgment by default on a petition addressed to another tribunal is so clearly correct that it requires no observation from us to show it so. His rejecting the application to amend is sustainable on the obvious reason that there was nothing before him to amend by.”

In Wadsworth vs. Harris, 1 Rob. 96, the case of Watson vs. Pierce was affirmed, the court saying:

“No judgment by default can be taken, nor can permission be given to amend the petition by changing the address. Code of Practice, art. 171, requires the petition to be addressed to a competent judge.”

In Lukis vs. Allen, 45 La. Ann. 1447, 14 So. 186, the court held that:

“The address to the court is an essential part of the petition, and its omission cannot be excused in the copy served on the defendant.”

Our attention is also called to the following text appearing in 31 Cyc. p. 94:

“The court in which the action is brought should be designated with substantial accuracy, but technical defects will not render the pleading insufficient. It is sufficient to state it in the caption. Where, however, the pleading wholly fails to indicate the court, there is no jurisdiction, and the proceedings will be set aside. And where a pleading is required to be addressed to the court, such address is an essential part of the pleading, and it is a fatal error to address it to a court different from that in which it is filed.”

Plaintiff frankly admits that at least two of the cases cited are directly in point, and are fatal to his contention that an amendment should be allowed. The argument is made, however, that these cases are very old, one of them decided about 100 years ago, and that they should not be followed, because of the modern tendency to permit amendments which work no injury and prevent useless delays and costs. The following authorities are cited: Jelks vs. Smith, 5 La. Ann. 674; Carter vs. Farrell, 39 La. Ann. 102; Meyer vs. Farmer, 36 La. Ann. 785; Eugster & Co. vs. La Compagnie Commerciale, 2 McGloin, 163; Davis vs. Arkansas Southern Ry. Co., 117 La. 320, 41 So. 587; Williamson vs. Williamson, 164 La. 144, 113 So. 796—the last case holding that: “Amendments to pleadings are reducible to no unbending rule. Each case must be left to the solemn discretion of the court. They should always be permitted where they tend to the furtherance of justice and are not prejudicial to the other party.”

Whether our Supreme Court is now prepared to overrule the cases referred to as ancient authority, which modem tendencies have outlived and outgrown, we are not prepared to say. It is sufficient for us that they have not done so. For an intermediate court to assume, in the absence of a positive declaration by the Supreme Court, that a doctrine, clearly announced in a decision of that court, and repeated thereafter in two other opinions, has been abandoned because of the trend of modern jurisprudence, without any express statement to that effect by that court, would be very unbecoming in this court as a subordinate tribunal.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the exception to the jurisdiction filed by defendant be maintained, and plaintiff’s suit dismissed at his cost.

Judgment reversed.


author: WEBB, J.

text:
    No. 3466
    Second Circuit
    HUNT ET UX v. RUNDLE
    (March 12, 1929. Opinion and Decree.)
    (April 21, 1929. Rehearing Refused.)
    (May 30, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Joseph H. Levy, of Shreveport, attorney for plaintiffs, appellees.
    Cook and Cook, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The employees of defendant, C. O. Rundle, in doing certain plumbing work on the premises occupied by Henry M. Hunt and his family, used gasoline in firing a furnace used in the work, which was carried in a five-gallon can, which was stored on the premises by the workmen, during the progress of the work, or for a period of several days, and the present action was brought by Henry M. Munt, appearing individually and on behalf of his minor son, Moseley Hunt, against C. O. Rundle, to recover damages alleged to have been sustained by. the child having been burned in using gasoline obtained from the can stored on the premises.

Plaintiff alleged that the gasoline had been stored on the premises without his knowledge, and that it had been negligently left at a place where it was easily accessible to his children, and that the can was improperly sealed, and that his son, Moseley Hunt, had taken gasoline from the can, which he had carried to a playhouse on the premises, where he called one of his playmates to show him a trick, which was to start a fire with the gasoline, and in thus using the gasoline the child’s clothing was ignited from the sudden flare-up of the flame when the gasoline was poured on the fire, resulting in the child’s being severely burned, and causing an expenditure by plaintiff for attention to the child.

Defendant admitted that the gasoline had been left on the premises by the workmen during the course of the work, but he denied that the receptacle containing the gasoline had been left in a place easily accessible to children, or that the receptacle was improperly sealed, or that plaintiff’s child, Moseley Hunt, had obtained any gasoline from the receptacle, and defendant further pleaded that, in event it should be held that the child had been burned with gasoline obtained from the receptacle stored by the workman on the premises, and that he, defendant, was negligent in storing the gasoline, that the child was capable of appreciating the danger of gasoline and was guilty of contributory negligence.

On trial, judgment was rendered in favor of the plaintiff, Henry M. Hunt, individually, for five hundred sixty-one and 50-100 dollars, the aggregate of the amounts alleged to have been expended and obligations incurred by him in having his child attended, and in the sum of eight thousand dollars, for the use and benefit of his son, Moseley Hunt, with interest as prayed for, from which judgment defendant appealed, and plaintiff has answered the "appeal asking that the judgment for the use and benefit of the child be increased to twelve thousand five hundred dollars.

It is conceded that when the work was not in progress the can containing the gasoline was stored by the workmen under the plaintiff’s dwelling house and that plaintiff did not have knowledge of such fact, and the plaintiff’s contention is that it was stored at a point where ■ it could easily be seen by plaintiff’s children, and that the openings were closed with oakum, which could easily be removed, and that Moseley Hunt had taken the gasoline used by him in making a fire in the playhouse, from the can, with the results as stated, while defendant contends that the workmen, who stored the gasoline under the house, had placed it at a point where it could not be seen by the' children, and that the openings were closed with caps or screw tops, and there was also some evidence offered tending to show that Moseley Hunt could have obtained gasoline from the tank of a Ford automobile which was kept on the premises by a brother-in-law of plaintiff.

There is an irreconcilable conflict between the testimony of the witnesses called by the respective parties, as to the place where the can containing the gasoline was stored, and as to. -whether the openings were closed with oakum or screw tops; however, from our review of the record, we find that the preponderance of the evidence established that the can containing the gasoline was stored at a point just under the house where it could easily be seen by the children, and that the openings were closed with oakum, and there is not any evidence in conflict with the statement of Moseley Hunt that he obtained gasoline from the can, which he used in starting a fire in his playhouse, and it is further shown that the workman had full knowledge of the presence of the children, as they had, as children usually do, followed and watched him while he was working.

In support of the contention that these facts establish negligence on the part of defendant, plaintiff cites Jackson vs. Texas Co., 143 La. 21, 78 So. 137, L. R. A. 1918D, 150; Powers vs. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Iamurri vs. Saginaw City Gas Co., 148 Mich. 27, 111 N. W. 884; and Folsom-Morris vs. De York, 61 Okl. 75, 160 P. 64, L. R. A. 1917A, 1290; however, we do not think that any of the cases are strictly analogous with the present, as in Jackson vs. Texas Co. and Folsom-Morris vs. De Vork defendant had or could have had knowledge that the children were' playing with the dangerous agency by which they were injured, and the same was the case in Iamurri vs. Saginaw City Gas Co., and in Powers vs. Harlow, while the question related to the degree of care to be used in storing dangerous substances, in that case the substance was dynamite or dynamite caps, which is recognized as highly dangerous, due to the fact that it may be exploded by concussion, and while there is some similarity between the cases cited and the present, in that they all recognize that a high degree of care must be exercised in guarding and protecting dangerous agencies as to children, who are known' or may be expected to come in contact with such agencies, than would otherwise be required.

It is well recognized that' the degree of care to be exercised in storing dangerous articles is commensurate with the dangerous character of the article, and it cannot be said that a commodity, such as gasoline, which is in general use, and which is not inherently dangerous, must be kept with the same degree of care as to the place of storage and persons who are known or should be known to have access to the place, as would be the case as to substances which are recognized as inherently dangerous; however, it must be conceded that some degree of care is required in storing gasoline, the presence of which is recognized as increasing the danger from fire, and- as dangerous in the hands of children, who are not familiar with its properties, and we do not think that the workman of defendant, in storing the gasoline under plaintiff’s residence, where it was easily accessible to children of whose presence he was aware, can be said to have exercised the slightest degree of care, either with respect to the place which he selected to store the gasoline or with regard to the children, whom he knew had access to the place.

While it may be that the workman did not apprehend that the child would take the gasoline from the receptacle and use it in making a fire, he did know that the gasoline was stored in a place easily accessible to the child, and that he could obtain gasoline from the receptacle, and that gasoline in the hands of the child could be a dangerous instrumentality, and we are of the opinion that the workman was grossly careless and negligent in storing the gasoline under the residence of plaintiff, and in storing it at a place where it was easily accessible to the children, of whose presence he was fully aware, and that his negligence was the proximate cause of the injury sustained by the child, although the workman did not anticipate the particular consequences of his negligence.

On the plea of contributory negligence, it was shown that the child, Moseley Hunt, had' not informed his brothers, who were a few years older than he, that he had taken the gasoline, and the reason given by him for not telling his brothers was that he was afraid they would take it away from him, and it is contended that the child is thus shown to have had knowledge of the dangerous character of gasoline.

Moseley Hunt at the time of the accident was under seven years of age, and it is generally held that, as a matter of law, a child under seven years of age cannot be held guilty of contributory negligence (Negligence, R. C. L., vol. 20, page 127, Sec. 106; Westerfield vs. Levis, 43 La. Ann. 63, 9 So. 52); but conceding that the rule does not prevail here, and that a child between six and seven years of age may be shown to have been capable of being guilty of negligence, the fact that Moseley Hunt did not • tell his older brothers (one of whom is also shown to have obtained gasoline from the receptacle left by the workman on the premises, and to have burned it in the presence of Moseley Hunt) does not show that Moseley Hunt knew of the dangerous character of gasoline or that he appreciated the danger of using it, as he did in making a fire, and we do not think the statement made by him can he said to establish that he was guilty of contributory negligence.

Both parties complain of the amount of the award. The burns sustained by the child extended from the chest to the knees, and he was under treatment for a period of about ten or eleven months; and while the details of his suffering, as related by some of the witnesses, is harrowing, he did not suffer continuously during the' period he was under treatment, and the permanent injuries appear to be only a noticeable limp or impediment in his gait (which the evidence shows should and can be corrected by an operation which is not indicated will be either serious or expensive) and the scars from the burns, from which the child suffers an itching sensation at times, which plaintiff is apprehensive may develop into cancer.

The evidence does not, however, establish more than that cancer may result from the scars, not that there is any indication of cancer, and we do not think that any allowance could be made as to such apprehended damage (Washington & G. R. Co. vs. Tobriner, 147 U. S. 571, 13 S. Ct. 557, 37 L. Ed. 284), and that the only allowance which could be made is for the pain and suffering from the burns during the period of treatment and the itching sensation with which the child suffers, and the permanent disfigurement, consisting of the scars and the impediment in his gait, and the trial judge having seen the child at the time of the trial, we cannot say that the amount fixed was erroneous.

While the permanent injuries are not of such character as to disable him, yet the evidence establishes that he suffered excruciating pain for a long period of time, and that his body is permanently disfigured, and we do not think that the amount awarded for the use and benefit of the child should he decreased.

The judgment is affirmed.


author: MOUTON, J. MOUTON, J.

text:
    No. 403
    First Circuit
    RICHARD v. POITEVENT & FAVRE LUMBER CO.
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    (May 20, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Hy. L. Garland, of New Orleans, attorney for plaintiff, appellant.
    Harvey E. Ellis and R. D. Jones, of Covington, and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff bought a tract of land in 1916 from George F. Banks who had acquired it from Mrs. G. W. Fuller in 1908, and from the Slidell Savings and Homestead Association in 1912. In both of the deeds to Banks, from whom plaintiff bought, the land is described as lot 1-B according to a plan made by Paul Gusmen, C. E. In the sale from Mrs. Puller to Banks it is declared that the vendor inherited the property from her father, Thomas Crawford, in the partition of his estate. This Thomas Crawford was the original grantee of the land from the government of the United States.

In March, 1926, as plaintiff was having posts set up with a view of building a fence along the meanderings of Bayou Brockham which she claims as being the eastern limit of her land, the erection of the fence was stopped under the instructions of defendant company which had the posts removed.

This suit, strictly a possessory action, was brought by plaintiff two days after the disturbance, in which she prays to have defendant enjoined from interfering with her possession. The titles mentioned in plaintiffs petition are referred to only to show the. extent of her possession.

Banks, plaintiff’s vendor, had the land fenced in and lived in a house built on it. He therefore took actual possession under his title from Mrs. Puller which formed part of Section 40, T. 8, S. R. 14 E., which had been originally granted by the U. S. Government to her father, Thomas Crawford. Banks lived on the property two or three years, the house which he occupied burned down and he moved off. He says it was fenced in when he bought, by a picket fence around the house, and a barbed wire fence which followed the edge of the swamp, and which ran up right next to the bridge. He says that the Gusman plan follows this swamp edge, but he disclaims having any knowledge ‘ of Brockham Bayou, which is the eastern boundary of Section 40, according to plaintiff’s contention.

Plaintiff acquired in 1916, and says she took immediate possession under her title. Her husband, who has since died, she says, acting as her agent, built houses. on the land, and cut some timber on it. She says that when she took possession- there remained remnants of an old wire fence along the border of the highland, and the edge of the swamp. This fence, no doubt, was what remained of the fence to which Banks, plaintiff’s vendor, refers in his evidence. The fact is that Anderson, a witness for defendant, says that eighteen or twenty years ago there was a barbed wire fence nailed to pine trees close around the edge of the swamp, and that there are yet some wires, though rusty, that are sticking out of the trees.

Several witnesses for defendant say that they have' not seen a'ny remnants of a fence along the edge of this swamp though they have often £een over the property, at various times, and for many years back. It may be very true that these witnesses never saw a fence there or remnants of it, but their testimony is negative in character, and must yield to the positive statements on the subject by Banks, plaintiff and Anderson, witnesses hereinabove referred to.

Plaintiff testifies that her husband, acting for her, had set up some posts along the foot of the hills where the old fence had been built with the view of building a new fence or restoring the old one although he never completed it by stringing the wires. This was, however, an act of actual possession by plaintiff to the edge of the swamp. It was along the line of this old fence that plaintiff was building a new fence in March, 1928, when the posts she had set up were removed by defendant company and which brought on this litigation.

The defendant company claims title by virtue of a patent issued in 1881, to its vendors, Poitevent and Favre, according to -the official plat of the survey of said lands in the State Land Office. The land is described in the patent as lots one, two and three, NE14 of NE% of Section 1 in T. 8, S. of Range 14 east.

The solution of this case depends upon a proper location of the dividing line between these properties.

The map of survey of the United States Government shows that Section 40 of T. 8, S. R. 14 east, which was acquired by Thomas Crawford, original grantee, is bounded on the east by Brockham Bayou.

Mrs. Fuller, daughter of Thomas Crawford, acquired in the partition of her father’s estate the lot designated 1-B on the Gusman plan, and which she conveyed to Banks, plaintiff’s author. This lot is bounded on the east by Brockham Bayou. In the sale from the Slidell Building Association to Banks, the boundary line is also given as Brockham Bayou.

In Safford vs. Albritton, 161 La. 773, 109 So. 486, the Court said that a survey with which land is granted by the United States Government becomes as much a part of the grant as the patent, and controls as far as limits are concerned.

In Gilmore vs. Lyons Lbr. Co., 159 La. 18, 105 So. 85, a State pátent gave an acreage of a tract of land that conflicted with a survey approved by the Surveyor General, which was held to prevail over the area referred to in the patent.

This general rule is, in cases of this character, that the calls in a survey for natural and permanent objects will control other and conflicting calls. The parties in such cases are entitled to have the lines re-established upon the ground as originally located by the Government Surveyor. Revised Statutes, sec. 3745, says, in reference to re-surveys, that the surveyors must take special care in all such cases to be guided by the original surveys. It must therefore be held that Brockham Bayou is the eastern boundary of Section 40, and of lot 1-B, which plaintiff acquired as a portion of that section deriving her title thereto, through George F. Banks, from Mrs. Fuller, daughter of the original grantee of Section 40. It is true that plaintiff and Banks both disclaimed knowing anything about Bayou Brockham, but they both say that their possession extended to the meandering edge of the swamp or to the foot of the hills, which the record clearly shows are on the west side of Bayou Brockham as appears on the Government map.

Plaintiff and her author, Banks, took actual corporeal possession of the land, and have so held it for many years, according to the extent and limits of their title. Plaintiff has brought her action well within the year from the disturbance she suffered in fact by the removal of the posts she had set up to erect her fence; .she was therefore entitled to bring her possessory action. Delaney vs. Levi, 19 La. Ann. 251.

This rule is so well established that the citation of recent authorities is unnecessary.

The defendant’s land is situated east of Bayou Brockham, and if defendant ever had actual possession of the land in dispute it could not be by virtue of its title by patent from the State which was granted to its author in 1881. If the patent conveyed an acreage across Brockham Bayou extending to the west side to where the posts were being set up, it must yield to the grant to Thomas Crawford as shown by the United States survey as was held in citations above referred to.

The defendant company contends that the survey made by Pugh which met with the approval of other surveyors, shows ■that the dividing line between the properties runs along the disputed point where the posts were dug up under its instructions. In making this survey, as appears from his testimony, Pugh took no notice of Brockham Bayou as being the boundary line. He relied on field notes of prior surveyors in searching for some corner post as a starting point. He says that the lower part of this bayou has been made navigable by dredging, and that going northward it ends into a slough. If he had followed the original United States Government (plat as he was required to do, he would have taken this bayou, water course, stream, or slough into account, and by so doing would not have established the line across Bayou Brockham, on its west side which fell within the eastern limit of Section 40, originally granted to Thomas Crawford.

If defendant ever had adverse possession, as it claims, on the west side of the bayou it was, without title. Such being the case it could claim possession only by enclosures, and not beyond such enclosures. 1 M., (N. S.) 480; McDonough vs. Childress, 15 La. 560; Ellis vs. Prevost, 19 La. 251.

There is no evidence that defendant ever occupied or possessed any particular spot or acreage by enclosures within which it could claim adverse possession, without title.

Plaintfif, on the other hand, has proved her actual possession during the period required by virtue of her title up to the line in dispute, and she is therefore entitled to a judgment maintaining her possession.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that plaintiff have judgment against defendant perpetuating her injunction, inhibiting and prohibiting defendant company from interfering with her possession, and from erecting a fence where the posts were removed by defendant along the disputed line in this contest, and that defendant pay all costs of suit.

ON APPLICATION FOR REHEARING

MOUTON, J.

We held that this suit was strictly a possessory action, which evidently excludes the idea that it could be either a boundary or petitory action. We said: “The titles mentioned in plaintiff’s petition are referred to only to show the extent of her possession.” We found that under her title she had had actual possession for a much longer period than one year up to the edge of the swamp where many years before a fence had been built; that it was along this line that she was building a fence when the disturbance in her possession by defendant occurred. It was up to this disputed line that we held plaintiff had a right of possession, and to an injunction to maintain that possession. We referred to the title of defendant to show that it did not extend to this disputed line, and for that reason, could have no legal possession at that point, except by virtue of fences or enclosures, of which there is no proof whatsoever.

Counsel for applicant are therefore in error if they construe our opinion or decree as dealing with either a petitory action or boundary suit.

We decreed plaintiff entitled to an injunction prohibiting defendant from interfering with her possession up to the line in contest, and find no reason advanced in the application to warrant a change or modification of our judgment.


author: MOUTON, J.

text:
    No. 394
    First Circuit
    HAYES v. NETHERLANDS INS. CO. OF THE HAGUE, HOLLAND
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    John W. Lewis, of Opelousas, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff, John F. Hayes, took out a fire insurance policy with defendant company through its local agent, Sachse Company, of Baton Rouge, to cover his dwelling and household furniture for a period of three years from April 1, 1926.

He alleges that the property so covered by the policy was destroyed by fire on or about October 23, 1927. His suit is to have the policy reformed and to recover from defendant company the sum of $1,400, face value of the policy, with 12 per cent as damages thereon, and $300 attorney’s fees.

His demand was rejected. He appeals.

The vital issue presented here is whether there was a meeting of the minds of plaintiff and defendant in reference to the property insured. The general and accepted rule in such cases is that, if the minds of the insured and insurer have met, and the policy, as written, does not express their mutual intention, it may be reformed by 'a court of equity. In other words, if the writing expresses without ambiguity the agreement as understood by one of the parties, but not by the other, there can be no reformation. It is therefore obvious that the mistake must be mutual to authorize the relief which equity grants to the policyholder in such cases.

The authorities cited hy counsel for plaintiff and defendant are in harmony with the doctrine outlined in the foregoing statement, which has been recognized by the courts of the various states, including our own, and to which we do not find it necessary to refer specifically.

The whole question in the instant case resolves itself into one of fact, which is, whether the policy of insurance expresses the mutual understanding of the parties in reference to the property insured.

The dwelling or home of defendant is numbered “309 Maryland Street,” and is situated outside of the corporate limits of the city of Baton Rouge. It is shown that Mrs. V. A. Sachse, manager of the Sachse Insurance Agency, local agent of defendant company, issued in 1925, an insurance policy to plaintiff covering" his residence and furniture located on Maryland Street outside the corporate limits of the city of Baton Rouge. She had occasion, as the record shows, to see the property several times in her vain efforts to collect from plaintiff the premium on the policy she had issued to him, and she inspected the premises.

Plaintiff, it is shown, failed to pay the premium on that policy, which was in consequence canceled about one month after its issuance. Plaintiff says that in February, 1926, he went to the Sachse office in Baton Rouge, walked in and told Mrs. Sachse he wanted to take out an insurance policy on his house; that she said “all right,” and that he went out. This is denied by Mrs. Sachse in her testimony.

Plaintiff wanted money from the Commercial Securities Company of Baton Rouge, which he could not get without having his home insured.

On the- 1st of April, 1926, he says, he called at the office of the Sachse agency to get fire insurance on his property. His residence at 309 Maryland Street, situated on the outskirts of the city, the record shows, is all the property he owned. There can be no doubt that this was the property he wanted to have insured, as he had no interest whatsoever in any other. That fact is well established by the record.

Plaintiff, on April 1, 1926, as before stated, applied at the Sachse office for the policy. He called on Mr. Smullin, the office man of the company, for the insurance. Smullin says he got his tab or writing tablet, and asked what building it was that he desired to have assured. He took his memorandum tablet to make a note on it, asked plaintiff how much insurance he wanted, on what kind of building, etc., and says plaintiff gave him his address, 1058 South Boulevard. Smullin says that 1058 South Boulevard is the location of the building that plaintiff gave him, and, by referring to the Sanborn map, which is consulted by all insurance companies, the correctness of the location was confirmed. He is certain, he says, that nothing was mentioned in that conversation about any building applicant owned at 309 Maryland Street. He says, he knew that plaintiff had obtained a foz’mer policy which he believes was written when he first went into the office, but had no reason to go to it, and did not have it in mind at the time. He did not know the applicant, and the latter did not know Smullin, had never seen him before, as appears from the record. He testifies that he did not get any information, in issuing the policy, from Mrs. Sachse or anybody else in the office. All that he had to go by was what plaintiff, the negro applicant, told him. He says the negro said that he had told him where to send the policy, but that he did not “recall that.’’

He testifies, however, that he had sent it to the Commercial Securities Company. He was asked about the loss payable clause in the policy, and whether the negro had requested him to put that clause in it. His answer was that he did not recall where that information came from, but said thereafter in his testimony that he remembered plaintiff had told him about the mortgage clause, that he had borrowed the money from the Commercial Securities Company. He says the assured was his only source of information.

The foregoing includes a full statement from Smullin’s testimony in reference to what was said between him and plaintiff when the contract of insurance was entered into, and which was written by Smullin.

The beginning of the policy reads as follows:

“On the one story composition roof frame building * * * while occupied by assured as a dwelling and situated as follows: No. 1058 South Boulevard, Street 37, Block 2, street etc.”

Plaintiff testifies that he applied to Mr. Smullin for his policy. He says, he walked into the office and said to Mr. Smullin, “I came to pay the premium on John E. Hayes’ policy”: that Mr. Smullin said all right, that the premium was $31.50, for which he gave him a receipt, and asked where he received his mail, to which he answered at “1058 South Boulevard.” He explains that he gave his mail address at South Boulevard, because it is in the city limits where his mother-in-law lives, and they have daily mail delivery, which is not the case on Maryland Street outside the corporate limits, where his residence is situated. According to the testimony of the plaintiff, the foregoing covers all that transpired in reference to what he said and was asked by Mr. Smullin. He is positive that no description of his property was asked by Smullin, who alone attended to the transaction. Plaintiff does not say anywhere, nor does he even intimate, that he told Mr. Smullin that he was occupying the dwelling, that it had a composition roof, or that it was located on Maryland Street. If he had intended to frame up a story against the insurance company, he would doubtless have testified that he had given information to Mr. Smullin on those subjects as a prerequisite to the confection of the contract. Instead of doing so he confines his testimony to the statement to which we have herein-above referred. It is certain from plaintiff’s evidence that Mr. Smullin never got from him the information that he was occupying the building as a dwelling, and that it was covered with a composition roof. It is equally certain from what was testified to by Mr. Smullin that he never obtained that information from what the negro told him.

Therefore the question arises: Where did Mr. Smullin get this information? We say, where did he get it, because he wrote the policy, and it is therein stated that the building is occupied by the insurer as a dwelling, and has a composition roof. Mr. Smullin is positive that plaintiff gave him 1058 South Boulevard as the location, and says that an examination of the San-born map confirmed the correctness of that location. It appears however from that map that the roof of the building there dosignated as 1058 South Boulevard has a shingle and not a composition roof. It would, therefore, have been impossible for him, by consulting that map, to have gotten the information which led him to put in the insurance policy, a composition, instead of a shingle roof. Hence, it is obvious that the composition roof provided for in the policy had reference to another building, and that Smullin had obtained his information in reference thereto from some other source than from the map. He nowhere claims it was from plaintiff, and he cannot claim it was from the Sanborn map. Both positions would be equally untenable. Mr. Smullin had never visited plaintiff’s residence, and had never met the negro at any time prior to his visit to the office for the policy. He must therefore have gotten the information, to which we have alluded, somewhere, or from somebody who had knowledge of those facts. The only source for the information could have been from the former policy of plaintiff’s dwelling, which had been canceled, or from Mrs. Sachse, who had issued the first policy after frequent visits, and inspection of the premises. Mr. Smullin and other officers of the company say that the canceled policy has been lost. Let us say it was lost or could not be found after the fire, still the information it conveyed as to the character of the property could have been obtained by Mr. Smullin prior to that time, and before he wrote out the policy, although he disclaims that he had it in mind when he entered into the contract with plaintiff. He also disclaims that he received any information from Mrs. Sachse or anybody else connected with the office when he issued the policy. Mrs. Sachse testifies that she did not know until after the fire that the policy in question had ever been issued. She denies, as we have hereinabove stated, that plaintiff ever applied to her for the issuance of the present policy of April, 1926. She says, however, in reference to the policy of 1925, which she had issued after inspecting plaintiff’s residence, that she gave the description to Mr. Smullin. It is therefore proved that Smullin, at that time, got a description of that property, which doubtless covered the building occupied as a dwelling by the assured, the plaintiff, and which had a composition roof, and which also gave the proper description 309 Maryland Street. That was the only source from which he could have derived such information, as he claims plaintiff did not give it when he issued the policy, and plaintiff does not contend that he tendered information of that character, as he says he limited himself to the giving of his mail address at 1058 Soiith Boulevard. Mr. Smullin, no doubt, had the information to which we have referred, which accounts for the fact, according to plaintiff’s testimony, that, when he applied to him for the policy, he required no written application, told him it was all right, and only asked him for his mail address, which was given as 1058 South Boulevard. Mr. Smullin doubtless relied on his prior information, and confined himself to the applicant’s mail address. This is where the error crept into the policy. Instead of putting in the contract, 309 Maryland Street, which would have been the correct location for pla/intiff’s residence, 1058 South Boulevard was inserted through mistake. Both parties intended to insure plaintiff’s dwelling, but Smullin having fallen into the error above stated, and the policy of insurance having been written by him, accounts for its failure to express the true contract in reference to the location of the building intended to be insured.

It must be also noted that the policy, before its issuance, was signed by Mrs. Sachse for the local agency. She says she did not read it before affixing her signature, and explains her failure to do so, on a custom which prevails with her, in many instances due to rush of business, etc., not to read the policies which are prepared by Mr. Smullin or other officers of her company. It is possible, and very probable, however, that, on seeing the policy was for John P. Hayes, whose dwelling she had inspected, and had good reasons to remember, she simply signed it without reading the contents. These policies are always prepared by these local agencies, do not require the signature of parties to whom they are issued, and should, in our opinion, be read before they are issued.

This rule should find additional force in a case like this, where the local agent was directed to prepare the policy and to mail it, not to plaintiff, but to the Commercial Securities Company. If Mrs. Sachse had read it before signing, the error of the proper location of plaintiff’s residence would have been at once detected, and corrected. The defendant company through its local agent in this respect is additionally at fault.

In addition to what we have hereinabove said as to what caused the original error in the description of the property, it becomes appropriate to refer to the following notation in pencil on the back of the policy: “309 Maryland Street S. B. R.” Mr. Smullin says he did not put this notation on the policy, and that it is not in his handwriting. A similar disclaimer is made by Mrs. Sachse. Mr. Morris, secretary-treasurer of the Commercial Securities Company, in whose possession the policy remained until the fire, says the notation is not his. Plaintiff is likewise positive that he had nothing to do with the notation. As the Commercial Securities Company had a mortgage on plaintiff’s property, it may be said it had knowledge of its location from the description in the act: This could not have been so however, as such act would not give the number of the dwelling in which the mortgagee might reside. Such specific descriptions are found in policies of insurance, but not in acts of mortgages. It therefore may safely be said that the Commercial Securities Company had no knowledge that plaintiff’s residence was numbered 309 Maryland Street, and that the notation on the back of the policy was not made by any officer or employee of that company.

Plaintiff, it is shown, received the policy the day after the fire, and had no interest, that we can see, why he should have made that notation. Besides, he frankly stated in his testimony that he had given Mr. Smullin 1058 South Boulevard as his address, and therefore could have no reason to insert a notation contrary to that location.

Someone, however, made that notation, and who had knowledge of the property that was being insured, or of the residence where plaintiff lived. We believe that Mr. Smullin had knowledge of that fact, that he relied upon what he knew in reference to this insurance when he wrote the policy, which accounts for the statement of the plaintiff, where he says Smullin merely asked him about his mail address, and nothing about the location of the property. Smullin intended to insure the dwelling on Maryland Street, but by inadvertence, error, or mistake inserted plaintiff’s mail address, as descriptive of its location.

It may be asked if Smullin relied on the information he had obtained from the former policy, or from someone in the office, why did he not incorporate the location as being on Maryland Street. The answer is: He depended on the knowledge he previously had, and confined himself to asking plaintiff for his mail address, which he did not have, and this resulted in the error of location.

Plaintiff testifies that Mr. Smullin gave him a receipt for $31.50, the amount of the premium for the policy. This receipt, plaintiff testifies, did not give the location of the property as being on South Boulevard. Smullin, and other witnesses for defendant company, say that these receipts so given to policyholders were on printed forms which carry the location of the premises insured. Smullin does not remember, and does not say, that the receipt in question had the description of the property as given in the policy. No other witnesses for defendant say that such was the fact. The witnesses for defendant say also that the bills sent for the collection of the premiums embody a description of the property or its location. It seems however from their testimony that no bill had been sent to plaintiff for the premium, as the time had not yet arrived for such a notice. Such testimony fails to prove that plaintiff had been apprised of the location contended for by defendant, opposed as this is by the positive denial of plaintiff.

Counsel for defendant refers us to R. C. L. vol. 14, p. 903, where it is said:

“To warrant a reformation the evidence must be clear and convincing.’’

This rule is almost universally recognized in cases of this character. Bearing this doctrine in mind, we have carefully considered the evidence in this record. The facts and circumstances, taken in connection with the testimony, show clearly and convincingly that both plaintiff and defendant, when the contract was entered into, had in mind the insurance of plaintiff’s dwelling on Maryland Street, and that, by mistake, the erroneous description of 1058 South Boulevard found its way into the policy.

This opinion is perhaps unpardonably lengthy, but which the writer considered necessary, so as to give a full analysis of the facts before ordering a reformation of the policy. Plaintiff is entitled to that relief and to the recovery of the . $1,400, face value of the policy for the total destruction of the premises and furniture insured, also $300, for the professional services of plaintiff’s attorneys established by the record.

It is therefore ordered, adjudged, and decreed that the judgment, appealed from be avoided, annulled, and reversed; it is further ordered and decreed that the policy of insurance, issued to plaintiff by defendant herein, be, and is hereby, corrected so as to read: “And situated as follows, 309 Maryland Street,” instead of “'No. 1058 South Boulevard, Street 37, block 2,” as now appears in said policy; and, it is further adjudged and decreed that plaintiff have judgment against defendant in the sum of $1,400 with 5 per cent per annum interest from October 23, 1927, the date of the destruction of the property covered by the policy, until paid; and that plaintiff have judgment for $300 as attorney’s fees, with all cost of court.


author: JONES, J. WESTERFIELD, J.

text:
    No. 10,565
    Orleans
    NOLAN v. PERLOFF
    (January 21, 1929. Opinion and Decree.)
    (April 15, 1929. Opinion and Decree on Rehearing.)
    (May 21, 1929. Writ of Certiorari and Review Refused, by Supreme Court.)
    U. Marinoni, of New Orleans, attorney for plaintiff, appellee.
    Benj. Y. Wolf, of New Orleans, attorney for defendant, appellant.
   JONES, J.

In his petition, plaintiff, a reputable architect of this city, claims $1,238.95 as commission for preparing plans and specifications for a building of defendant.

The architect avers that during the month of September, 1923, he was employed by the defendant to draw plans and specifications for the alteration of an old store building, corner Frenchmen and Decatur Streets, this city; that, acting under these instructions, with much labor and skill he prepared the requested plans with the consent and knowledge of the defendant, and submitted them to various contractors in this city.

On October 3, 1923, he wrote the defendant and sent him a list of the bids on the work and recommended the acceptance of the lowest bid, which had been made by Haffner & Taylor, contractors of this city, who offered to do the work for $21,379.00; that defendant then for the first time informed plaintiff that the bid was too high and that he desired another set of plans for a new building, using old material, to cost about $17,000.00; that when a preliminary plan for the new building to be constructed largely out of old material, at a price of $17,000.00, had been prepared, it was submitted to defendant by letter on October 8, but he remained silent, and the matter remained in statu quo for some months, until plaintiff discovered that defendant had caused a new building to be erected under plans prepared by another firm of architects, without any notice to him.

That in accordance with reasonable prices and the rules and practice of architects in New Orleans, he was entitled to 5 per cent commission on the lowest bid made in accordance with bis original plans and specifications for the repair and alteration of the old building, which would amount to the sum of $1,068.95, and that, in accordance with the same rules and practice of the established architects in New Orleans, he was justly entitled to the sum of $170.00 for the preliminary plan for the new building which was to have been constructed out of the old material, and, accordingly, he prayed for the amounts claimed.

Attached to and made part of plaintiff’s petition are copies of his letters to defendant of October 3, October 4, October 8, and October 31, all of which were duly proved to have been mailed to defendant at his address in New Orleans.

Defendant answered, denying all indebtedness, and averring that he had called at the office of plaintiff and agreed that plaintiff should draw up plans for a building not to cost more than $12,000.00 on a commission basis of 5 per cent and that he had agreed to pay this commission provided that the plans were accepted and the building erected for not more than $12,000.00; that when the lowest bid for the proposed repairing of the building in accordance with plans and specifications as prepared by plaintiff was $21,379.00, the agreement had been broken, and there was nothing due plaintiff for his work.

Defendant denied specifically the allegation with reference to the second plan for the building to cost $17,000.00 The case went to trial on these pleadings. There was judgment for plaintiff in the full amount claimed, and defendant has appealed to this court.

It will be seen, from the above outline, that plaintiff is suing on a quantum meruit for what he alleges to be a reasonable fee for his architectural plans, and that defendant avers that there was a specific contract for a limited amount, and that the limit having been exceeded, no indebtedness was incurred. ' Only two questions are before us:

First, one of fact as to the existence vel non of the contractual limit on the price of the proposed building, and

Second, if it be found that there was no such contract, the reasonableness of the charges claimed by plaintiff.

The following facts seem to be admitted by both plaintiff and defendant, and to be thoroughly established by the evidence:

Defendant, who wished to repair his old three-story store building at the corner of Frenchmen and Decatur Streets, in this city, first discussed the matter with a contractor, by the name of Goldenberg, whose office was just across the street. Golden-berg, who knew nothing of drawing plans or specifications and had done comparatively little contractual work, made a very rough, crude sketch of some of the proposed alterations on an ordinary piece of old white paper. Carrying this sketch, he took defendant with him to plaintiff’s office, as he had been favorably impressed by some of the plaintiff's work on a building for which he had acted as foreman. At this meeting in plaintiff’s office it was agreed that a 5 per cent commission would be a reasonable fee. Plaintiff stated that he would have to see the building and measure its cubic contents before he could proceed further. A little later, plaintiff, Goldenberg, and defendant went down to the building, and after plaintiff had examined the building thoroughly, he agreed to prepare plans and specifications for the repair of the entire structure. He then prepared the plans and specifications, as outlined in his petition, and submitted them to various contractors, and finally secured five or six bids, which were duly transmitted to the defendant; the lowest bid being that óf Haffner & Taylor for $21,379.00. These contractors and Jno. A. Petty, another well-known contractor of this city, testify that their bids were based on the plans and specifications of plaintiff. Defendant, who found these bids too high, proceeded no further with the construction of the building until some time in the summer of 1925, when he had engaged other architects and had a practically new building erected on the same site for more than $22,000.00.

On the disputed question as to the price limit being fixed in the agreement, Nolan, plaintiff, swears positively that no price was ever fixed, and that it was practically impossible for any architect to tell with certainty exactly how much the repairs of an old building would cost. In this statement he is confirmed by two other well-known architects in this city, both of whom additionally testify that Nolan’s charge was most reasonable, under the circumstances, for the plans and specifications which he had prepared.

Denton, the office foreman for plaintiff, testifies that he took the bids down to defendant, Perloff, and there, in the presence of Mrs. Perloff, was informed by defendant that the bid was too high, as he had been informed by a contractor that the work could be done for $12,000.00. Denton swears that he then asked Perloff if Mr. Nolan had ever fixed any limit beyond which the price should not go, and Perloff answered in the negative.

On direct examination, Goldenberg, the contractor who brought plaintiff and defendant together, testifies that Mr. Nolan did not fix any price, but promised to prepare a sketch for the repairs and restoration of the building at a price between $10,-000.00 and $12,00.00, which was all that Perloff said he could afford to spend at that time. On cross-examination he admitted that his sketch had covered no details, that it was “just ordinary guessing work,” and that the bid submitted by Haffner & Taylor was a reasonable one for the work required by Nolan’s plans, which plans, he said, covered not only what he had originally suggested, but a great deal more additional work; that he had failed to make a bid on Nolan’s plans and specifications, as he had originally intended to do, because he realized that the work was going to cost more than Perloff wished, but he denied that he had advised Perloff to reject all bids and to drop the matter.

The defendant testifies on direct examination that Nolan had told him it was hard to speak definitely about alterations, but that he would give a rough estimate, which would not cost more than $12,000.00, and that he had said, “if it won’t cost over twelve '(thousand dollars) I will be in a position to carry it out.” He said that he was not at home when Denton brought the bids and that he had never authorized Denton to ask Nolan to make a new preliminary plan for $17,000.00. On cross-examination he admitted that he had received, some time in September, the plans and specifications from Nolan, and that he had submitted these plans and specifications to Goldenberg and various other contractors, and he also admitted that he had received Nolan’s letter of October 3, transmitting the six bids of the contractors; but he denied that he had ever discussed the matter any further with Goldenberg, and he also denied getting any letters from Nolan, except a letter of demand some 18 or 19 months after receipt of the bids. When asked why he had not communicated further with Nolan, his only answer was that he did not think it necessary, although he admits keeping the plans and drawings, which stated on their face they were the property of the architect William T. Nolan.

Mrs. Perloff denies that she was present at the interview of her husband with Den-ton when he brought the bids, but she does admit that she did receive a package from an older man which she thought contained the bids.

It is thus seen that there are two witnesses for plaintiff on the question of the contractual limit and two for the defendant, and if this were the only evidence, we might feel justified in reversing the decision of the lower court on a question of fact—a step which we are always loath to take. But we find very strong confirmatory evidence of Nolan’s position in the copies of the letters attached to his petition, which were proved to have been sent to defendant, and some of which defendant admits receiving. In the first letter of October 3, after giving the name of Haffner & Taylor and their bid of $21,-379.00 as the lowest, and then listing the names of the other contractors with their bids, we find the following two significant paragraphs:

“All these contractors are figuring upon doing the same work, all as outlined in the plans and specifications which were gone over and approved by you.
“I consider the low bid as a very favorable one and these contractors have advised me that they are prepared to start work immediately.”

It is improbable’that the architect would have written that he considered a bid of $21,379.00 very favorable if he knew that the outside limit allowed by the owner was $12,000.00.

On October 4, Nolan wrote Perloff as follows:

“My representative Mr. Denton reported to me the conversation which you had with him relative to the bids which I submitted to you for alterations, repairs, etc., to your building on Frenchmen St.
“In accordance with this suggestion, I am working up another set of plans with a view of getting an estimate upon them to ascertain the price of a two-story building to occupy your premises down there using as much of the present walls as will be found in good order for supporting this building.
“Just as quickly as I can develop this estimate, I will get in further touch with you so that you may decide which matter you will proceed with.
“With kind regards I am. * * *”

On October 8, he wrote as follows to Perloff:

“In further reference to your request to make an estimate on what a two-story building would cost at your property on Frenchmen St., demolishing the present building and using the walls of it where they are sound and any other materials that may be found to be usable.
“I have worked out a preliminary plan in this connection and I estimate that a two-story building will cost in the neighborhood of $17,000.
“If this price is interesting, I can immediately put additional work on to the plans and complete them and place them in the hands of contractors for early bids.
“Thanking you for your advice, I am.

On October 31 he wrote asking for a decision as to which set of plans would be used, and offering to consult further on the matter if Perloff wished to do so. On June 13, 1925, after he had seen in the Manufacturers’ Record that Perloff had employed other architects to put up his building, he wrote demanding payment of the amount claimed hérein.

We consider these letters sufficiently confirmatory of the general testimony of plaintiff to sustain the decision of the lower court in favor of plaintiff as to the fact that he was entitled to payment for both sets of plans. Even if Denton had overstepped his authority in asking Nolan to prepare the new sketch for a cheaper building, we think defendant’s silence, when he was notified that the architect was preparing a plan for this more reasonable structure indicates that he acquiesced in this work, and that it is now too late to deny approval after the work has been completed.

This conclusion is sustained by the following authorities: Sully vs. Pratt, 106 La. 601, 31 So. 161, where the court uses the following language:

“An intending builder, by calling, upon an architect to prepare plans and specifications which he afterwards receives, renders himself liable to pay for them whether they are used or not.”

And the case of Diboll, Owen & Goldstein, Ltd., vs. Grunewald, 7 Orl. App. 59.

Defendant relies upon the case of McDonnell vs. Dreyfous, 144 La. 891, 81 So. 383. We do not find that decision controlling, because that was a specific contract for a new building, and plaintiff himself admitted that there was a discrepancy between the amount which the owner wanted to pay and the lowest bid of $19,000.00.

The testimony of the architects and contractors in this case is to the effect that it is well-nigh impossible to fix the cost of repairs and restoration of an old building with any certainty, but that the price of a new building is far more definitely ascertainable. Furthermore, suit was filed by McDonnell while Dreyfous was still working with him on change of plans.

On this point, see, also, the following authorities: Mohr vs. Swoop, 13 Orl. App. 94; Rosenthal & Gross vs. Jay, No. 7352, Ct. App. (Teissier’s Digest).

On the second question as to the reasonableness of the compensation, we find that the defendant himself admits that he had agreed to pay 5 per cent for preparing the original plans and specifications on a price of $12,000.00, and in this statement he is confirmed by his friend, Goldenberg. We further find that the averment of plaintiff as to the reasonableness of a 5 per cent fee for the work done in this instance is confirmed by both the reputable architects who testified in this matter, and there is no contradictory evidence on this point.

The fee of 1 per cent for drawing the subsidiary second plan for the new structure to be built out of the old material is plainly reasonable.

For above reasons, the judgment is affirmed.

Judgment affirmed.

ON REHEARING.

WESTERFIELD, J.

Upon further consideration we are convinced that our original decree is correct and it is therefore reinstated.

Original decree reinstated.


author: JONES, J.

text:
    No. 11,586
    Orleans
    JACKSON v. FOREST PRODUCT CHEMICAL CO.
    (April 1, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)
    J. C. McGee, of New Orleans, attorney for plaintiff, appellant.
    Harry McE'nerny, Jr., of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff, an ignorant negro, who can neither read, nor write, sued for $6000 compensation (subject to a credit of $240, amount already paid) for injuries to the index and third fingers of his left hand, on April 15th, 1927, caused by a fall from a ladder while unloading a freight car in the yard of defendant.

Defendant, after alleging that $240 had been paid in error, to plaintiff, urged the following defenses:

First. That plaintiff was employed by an independent contractor;

Second. That he had been paid all compensation due, and had been discharged by its physician as able to work.

There was judgment for defendant and plaintiff has appealed to this Court.

The following facts are undisputed:

Plaintiff, who had then been unloading wood at defendant’s charcoal factory in this city for at least four months, fell from a ladder, on April 15, 1927, while climbing a freight car and was sent at once to the physician of the company, who treated the index finger of his left hand, until the last of July, 1927; he was then advised to resume his work and made vain attempts to do so for two days, only to be refused further payment on the ground that he was not well enough to work.

At the time of the accident he was forty-one years old and had always been strong and well.

There is a dispute about the following questions:

Both plaintiff, and Fred Davis, another colored employee, who had held the same position, with defendant just prior to the employment of plaintiff, testify that plaintirf was employed by the defendant company, through an employee, called “Frenchy”; that he received his pay in an envelope every week just as the other employees did; that he was required to unload cars of wood and then shove the cars back; and that Allen, the alleged independent contractor, had no control over his work and did not direct or pay him, in any way, but merely assisted in unloading the cars.

Plaintiff testifies that under advice of defendant's physician, after his treatment by splints and hot applications had failed to relieve the stiffness in his fingers, he had four teeth pulled, 'but this did no good.

Ford, the foreman of defendant company, testified that it had a verbal contract with Allen to unload all cars of wood, at a price of eight dollars per car; that plaintiff was working for Allen and that his name had never been carried on the payroll; that he had never been paid by defendant; that “Frencliy” was a watchman and had no authority to employ or discharge labor; that Allen could not read or write but that he was paid the total amount for' unloading cars in an envelope, and made his mark on payroll, later dividing the money with plaintiff; that at the time of the accident he had sent plaintiff to the physician of their insurance company and had made a report to the manager, stating that the witness had fallen from the car and had hurt his index finger.

On cross-examination he admitted that plaintiff had come back to the plant and worked for two days and he had told him to go back to the doctor, as plaintiff asserted the injured fingers still incapacitated him.

W. R. Carter, the branch manager of the defendant company, whose head office is in Memphis, Tenn., generally confirmed the statements of Ford, but on cross-examination admitted that sometimes “Frenchy” had been sent out to get employees, and at one time, years before, had attempted to exercise that power, which was later cancelled.

The payrolls were not produced in Court and there was no explanation as to why the plaintiff was sent to the physician of the company and why he was paid for twelve weeks at the rate of $20 per week.

It will thus be seen that the identity of the employer is by no means clear from the evidence. The testimony of the two colored witnesses who swear contradictorily to the two white witnesses, is confirmed by the twelve weeks payment, a strongly corroborative circumstance, for it would be almost unheard of, that an insurance company should pay a laborer without first investigating his status.

The preponderance of the evidence is thus with plaintiff on this point, but under the decision of the Court in the leading case of Zeller vs. Louisiana Cypress Lumber Co., 9 La. App. 609, 121 So. 670, in which writ was denied by the Supreme Court on January 29th, 1929, the defense of independent contractor loses its importance.

In this, the most recent case where the same defense was made, it was held that the dependents of an employee killed in the course of his employment under a general logging contractor, might sue the lumber company, as (principal, along with the contractor. See also Gaiennie vs. Chisholm, 3 La. App. 358; Clementine vs. Ritchie, 1 La. App. 296; Wisinger vs. White Oil Corp., 24 Fed. (2nd Ed.) 101.

Defendant relies on the case of Johnson vs. Vincennes Bridge Company, decided on October 29, 1928 (La. Sup.) 118 So. 820, but this decision is not controlling, as the facts differ substantially.

The evidence clearly shows that at the time of the trial, plaintiff’s index finger and the third finger of his left hand were still swollen stiff and incapable of full flexion.

The physician who treated him at the Charity Hospital, after he was discharged by defendant’s doctor, testified that the X-ray .picture then taken showed arthritis in the terminal bones of the finger, causing loss of flexion and that the plaiutiff was suffering at time of the trial with arthritis, which had been aggravated by the fall and that he could not work more than a few hours at a time.

The physician of the defendant company testified that he had an X-ray picture taken at the time of the injury, which showed the index finger was injured and he had placed both fingers in splints simply to immobilize them; that he had a blood test made which showed negative; that the fall might have produced the' damage to both fingers, but that in his opinion, the man could have resumed work at the end of July; that plaintiff had reported to him his inability to do so after a two days trial and he had referred the plaintiff to Dr. Martin, a distinguished surgeon of this city.

Dr. Martin testified that the two fingers were swollen and stiff at the time of trial, but only the index finger of the left hand showed signs of arthritis, was swollen and rigid when he first examined him on July 12, 1927, although all of the fingers of the left hand had some impeded motion, but in his opinion, plaintiff should have returned to work about the last of July, 1937, as work was always the best thing in such circumstances to prevent the patient’s becoming unduly anxious and losing confidence. Had the patient returned to work, as instructed, his fingers would have been better by this time and he could have been doing manual labor. Unfortunately, the record does not contain Dr. Martin’s report, although it was offered in evidence.

It is thus seen that all the doctors agree that plaintiff’s fingers were swollen and stiff, and lacking in flexion at the time of trial, but they disagree as to whether plaintiff had been able to work at the end of July, 1927, and as to the amount of hard work plaintiff could then do, the results of continued efforts to hard work are, necessarily, uncertain, but one fact stands out that plaintiff tried it for two days and then had to quit.

As the amount earned by plaintiff, according to the number of cars unloaded was from $18 to $35 per week, and as the evidence is not conclusive as to the sum averaged by plaintiff, we take the amount allowed by defendant as the basis for compensation, viz: $20 per week.

It is therefore ordered, adjudged and decreed that there be judgment in favor of plaintiff, Will Jackson, and against defendant, The Forest Product Chemical Company, for compensation at the rate of $13 per week for a period of fifty weeks, with interest from judicial demand, subject to a credit of $240.


author: ODOM, J. ODOM, J.

text:
    No. 3352
    Second Circuit
    GENERAL MOTORS ACCEPTANCE CORP. v. BUDREAUX
    (November 8, 1929. Opinion and Decree.)
    (April 5, 1929. Opinion and Decree on Rehearing.)
    Crow and Coleman, of Shreveport, and R. A. Eraser, of Many, attorneys for plaintiff, appellant.
    Boone and Boone, of Many, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff, by this action, seeks to be decreed the owner of a certain Pontiac automobile, alleged to be in the possession of defendant, who is a resident c£ Sabine Parish, La.; and, in the alternative, in case the court should hold that it is not the owner of the automobile, then that it have recognition of its vendor’s privilege and chattel mortgage on the said car. The defendant resists the action on the ground that he purchased the automobile from a man named W. L. Phares, who was in possession of and the apparent owner of said car; that he purchased the same in good faith and paid full value therefor. The lower court rejected plaintiff’s demands, and it has appealed.

OPINION

The facts are that on October 26, 1926, the Jones Motor Company, of Columbus, Miss., sold the said car to W. L. Phares, under what is termed a “conditional sale contract,” which provides that “title to said property shall not pass to the purchaser until said amount is fully paid in cash.” The purchase price of the car was $1,058, of which $332.34 was paid in cash, the balance to be paid in monthly installments of $60.48.

Shortly after Phares purchased the car, he drove it to the State of Louisiana, and sold it to the defendant for approximately $1,000, which price was fully paid hy the defendant, Budreaux. Subsequent to the sale of the automobile to Budreaux, Phares paid ten of the twelve monthly installments, leaving a balance due on the purchase price of the car of $120.96. The plaintiff corporation, which purchased the original contract between the Jones Motor Company and W. L. Phares, now seeks to enforce that contract, alleging that the laws of the State of Mississippi, where the contract was made and intended to be executed, recognize conditional sale contracts, and that, under the jurisprudence of this State, it has a right to enforce the contract here; and that, inasmuch as the contract price has not been fully paid in cash, it has a right to take possession of the automobile as owner.

Conditional sales convey ownership, under the laws of the State of Louisiana. But, in some states, the law permits a vendor to make a sale of a chattel and retain title thereto until the purchase price has been fully paid, and our courts have recognized and upheld such contracts when the chattel was subsequently brought to this State and disposed of by the vendee. Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138; Hinton Co. vs. Rouse, 4 La. App. 471; Powell Motor Co. vs. A. Christina & Bros., 8 La. App. 174. It is only in cases where the laws of other States recognize and enforce such contracts that the same will be recognized and enforced here.

The plaintiff alleged that such contracts are recognized under the laws of the State of Mississippi, but he failed to make proof of that fact. Courts of this State do not take judicial cognizance of the statutes of other States. E. B. Hayes Mach. Co. vs. Eastham et al., 147 La. 347, 84 So. 898.

“Statutes of other States are regarded as matters of fact and when relied on to support a cause of action or defense, must be pleaded and proved.” 36 Cyc. 1240.
“The Courts of one State will not take judicial notice of the statutes of another State, and the party relying upon such statutes to support his cause of action or defense, must not only plead them but must also (produce satisfactory evidence of their subject-matter and validity.” 36 Cyc. 1252.
“Foreign laws must be proved as facts. In the absence of such proof, the rights of parties who claim and the effect and validity of instruments executed under the laws of another State must be determined by our own, which will be presumed the same.” See “Evidence,” section 44, vol. 3, La. Digest, p. 129.

The plaintiff alleged, but failed to prove that under the laws of the State of Mississippi title to a chattel does not pass under a contract of this kind, until the price is fully paid in cash. It cannot, therefore, invoke the laws of that State in its behalf.

Plaintiff can get no relief in its alternative plea. The purchase price of the car had not been fully paid when Phares sold it to the defendant, Budreaux, but Budreaux having purchased the property in. this State and having paid the price acquired title thereto free from the vendor’s lien. Robinson vs. Tatum, Moore, Intervener, 7 La. App. 335; Burdeau vs. Creditors, 44 La. Ann. 11, 10 So. 395; Dreyfous vs. Cade, 138 La. Rep. 297, 70 So. 231; Pierson vs. Carmouche, 146 La. 798, 84 So. 59; Continental Bank & Trust Co. vs. McCann, 151 La. 555, 92 So. 55. Yates vs. Merritt, 151 La. 344, 91 So. 759; Civil Code, arts. 3217-3227.

Plaintiff does not contend that it had a chattel mortgage on said property, recorded in Sabine Parish or elsewhere in this State.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.

ON REHEARING.

ODOM, J.

The issues in this case, as disclosed by the pleadings, were set out in our original opinion. In passing upon the case, we considered only the issue as finally presented to the District Court, but overlooked entirely that the Court had sustained an exception of no cause of action to the plaintiff’s main demand, which was to be recognized as and decreed to be the owner of the automobile under the conditional sale contract made in Mississippi, which state recognizes such contracts.

Plaintiff’s petition unquestionably discloses a cause of action on the main demand. Plaintiff alleged that the automobile was sold by the James Motor Company, in the State of Mississippi, to Phares, on terms of credit under a contract which specifically provided that, “title to said property shall not pass to the purchaser until the amount is fully paid in cash,” and that the purchaser “shall not remo.ve same from the state without permission of the seller; shall not transfer any interest in this contract or said property;” and it alleged that the balance due on the purchase price of said car had not been paid and that the purchaser had removed the car from Mississippi to the State of Louisiana without permission of the seller and had there disposed of it; and in Article IV of the petition it is alleged:

“That under the laws and adjudications of the State of Mississippi, conditional sales contracts are recognized and ordered enforced, under which the holder thereof retains the title to the personal property with reference thereto, and described therein, until the full purchase price is paid and discharged, and the holder of said instruments are the lawful owners of said property, which laws and adjudications your petitioner specifically pleads.”

See Securities Sales Co. vs. Blackwell, 167 La. Rep —; 9 La. App. 651; 120 So. 45.

Plaintiff asked that it be decreed the owner of the car and that was its main demand. The Court below was of the opinion that plaintiff’s petition did not set out a cause of action in that respect. The Court erred in so holding.

Plaintiff asked, in the alternative, in case the Court should hold that it was not the owner of the car, that it be decreed to have a privilege thereon for the unpaid balance of the purchase price, and the Court held that it had none, and we sustained that view and affirmed. the judgment. But, as stated, we overlooked, the fact that the Court had sustained the exception of no cause of action and that plaintiff had reserved a bill to the Court’s ruling and had brought that ruling up for review.

For the reasons assigned, it is now ordered, adjudged, and decreed that the judgment of the lower court sustaining the exception of no cause of action be reversed and that said exception be and the same is now overruled; and further ordered that this case be remanded to the lower court and reinstated on the docket thereof to be proceeded with in accordance with the views herein expressed, with permission granted plaintiff to introduce all testimony relevant to the issue of ownership of said automobile; costs of appeal to.be paid by appellee; all other costs to await final results.


text:
    No. 10,652
    Orleans
    BLASINI v. CHARBONNET
    (February 11, 1929. Opinion and Decree.)
    McCaleb & McCaleb, of New Orleans, attorneys for plaintiff, appellee.
    Charles J. Rivet, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, a real estate broker, sues upon an alleged verbal contract of employment made on or about December 20, 1923, for the sale of defendant’s property, for the customary commission of three per cent. He avers that, .through his efforts, one Vito Manalle became interested as a prospective purchaser, and that the eventual sale of the property to Manalle was the direct result of his negotiations, after a definite promise had been made by defendant to pay him a commission, if Manalle bought.

Defendant, after denying the contract and the procurement of Manalle as a purchaser by the efforts of the plaintiff, averred that his property had been sold by another, and that plaintiff had been warned not to interfere in the negotiations which were pending between him and Manalle.

There was judgment below for amount claimed, based upon the verdict of a jury, which defendant had demanded.

After his motion for a new trial had been refused, defendant appealed suspensively to this court.

Although several documents were offered in evidence by plaintiff and defendant, the record in this court contains only three: One a written offer, good for 10 days, of April 16, 1924, by Vito Manalle, addressed to the plaintiff to pay $15,250 cash for the property to defendant and assume all the taxes for the year 1924, and to make a deposit of ten per cent cash as soon as the offer was accepted. The second, document is an exclusive ninety-day contract for the sale of this property for $17,000, made by defendant with Onorato, another real estate agent, on January 16, 1924. In this exclusive contract defendant agreed to pay. four per cent commission. The third document reads as follows:

“Dr. L. S. Charbonnet does hereby agree to sell to John Terranova, who agrees to purchase, the property No. 2714 Esplanade Avenue, on lot measuring as per title, for the price and sum of Fifteen Thousand, Two Hundred and Fifty Dollars ($15,-250.00) Cash. The taxes for 1924 are to be pro-rated as of the date of the passing of the act of sale. Act of sale is to be passed within forty-five days from this date at purchaser’s expense, before his Notary.
“The vendor is to retain possession free of rent .until June 10th, 1924.
“The purchaser has paid to the vendor at the execution of these presents the sum of Fifteen Hundred and Twenty-Five Dollars ($1525.00) on account of the purchase price, receipt of which is hereby acknowledged; said payment is not to be construed as earnest money, both parties reserving the right to specific performance.
“The vendor will pay for the usual and necessary certificates and for the United States Internal Revenue Stamps on the sale.
“In faith whereof, these presents have been executed in duplicate, in the City of New Orleans, on the 25th day of April, A. D. 1924.
“(Sd.) John Terranova, “(Sd.) L. S. Charbonnet.”

The testimony of both plaintiff and defendant is vague and inconclusive, but there are facts brought out by other witnesses tending to confirm the stories of either. Were the question presented to us as a new proposition, we would dismiss 'the suit on the ground that plaintiff’s testimony was too vague to support a decision in his favor, and we would do so even now, in spite of the contrary decision of the trial judge on the question of fact as to the existence of the verbal contract, had not defendant on April 25th made the above-outlined contract with Terranova, just one day before Manalle’s offer expired.

The record shows conclusively that Manalle was present when this document was signed by the defendant and Terra-nova, and that he gave his check that same afternoon to Terranova for $1,525, and that Terranova was merely a' party interposed, who never had any intention of taking the property. If the statement of Dr. Charbonnet were true, that he had all along warned plaintiff to “keep off of Manalle,” we can see no possible reason for his written agreement to sell to Terra-nova for a smaller price than that offered by Manalle. The only possible reason for interposition of this third party was to avoid paying commission to plaintiff, who would hardly have gone to the trouble of getting a written offer from Manalle if defendant’s statement were true. This act of defendant speaks far louder than many words and tends to bolster up the testimony of plaintiff and his salesman, Bernard, to the effect that there was a verbal contract.

Appellant’s able attorney, in his argument and brief before this court, emphasizes especially two alleged errors in the trial below:

First, he avers that defendant’s verbal contract, if any ever existed, was cancelled by the exclusive ninety-day contract of Onorato, and that plaintiff has been allowed to recover on a contract different from that on which he sued. This contention is not sustained by the evidence. The fact that plaintiff waited to secure the written offer from Manalle until April 16th, the day Onorato’s contract expired, tends to show, as testified by plaintiff, that he wished, if possible, to save defendant the payment of two commissions.

The second error urged by appellant is that his objection of “res inter alios acta” should have been sustained to the introduction of Manalle’s written offer. However, plaintiff testifies that he showed this document to defendant in one place, and in another that he held it in his hand to show defendant, but did not remember whether defendant looked at it or not, as defendant told him at once that he had already sold the property to someone else other than Manalle. As Bernard, the salesman, swore that Manalle had made the written offer, and as Manalle, one of the defendant’s witnesses admitted on the stand that he had signed the offer and outlined in detail all its particulars, we do not think that the introduction of this document could have had the weight attributed to it by appellant.

Defendant further urges that there was no contract because no commission was agreed upon. But this court has decided that where one receives the services of another in the line of his business he is bound to pay the usual compensation for such services; and it is immaterial whether defendant sought the services of plaintiff or whether plaintiff solicited the employment. See Mason vs. Dry Hand Mop Co., No. 8528, Ct. of App. (Orl.) of the docket (see So. Rep. Dig.) affirmed in Harvey vs. Winters, 1 La. App. 383.

Defendant, however, claims that the decisions of this court are opposed to Mitchell v. Richardson, 155 La. 999, 99 So. 799. In this case the court found that there was no evidence to show employment, nor any evidence that plaintiff was the procuring cause; so it followed that there was no evidence to sustain a commission.

All of the cases cited are inapposite.

Taken all in all, we think this case is one for the application of the. well-known rule that the appellate court will not reverse the judgment of the trial court upon a question of fact, unless there is manifest error.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 10,949
    Orleans
    ROSENBERG v. ESTRADE
    (April 29, 1929. Opinion and Decree.)
    Joseph Rosenberg, of New Orleans, attorney for plaintiff, appellee.

      Dart and Dart and Louis C. Guidry, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit by a real estate agent for a commission. One of the defendants, Emile Estrade, owned a certain piece of real estate. Pie was called upon by the plaintiff, Nathan Rosenberg, for the purpose of having the property listed with him for sale. Emile Estrade directed plaintiff to take the matter up with his son, Herman Estrade, with the result that an exclusive agency contract authorizing plaintiff to sell the property for $11,200.00, or “any other amount agreed upon,” and stipulating to pay plaintiff 4 per cent commission, was signed by Herman Estrade.

A number of offers submitted to Herman Estrade by plaintiff were rejected by him. Finally one John Howard agreed to pay $10,678.00, which offer was accepted by Herman Estrade, and the title to the property delivered to the intending purchaser for the purpose of examination. The title was approved, and the act of sale prepared by Harry McEnery, Notary Public, but the sale failed of consummation due to the refusal of Emile Estrade to complete the transaction.

After putting Emile Estrade in default, plaintiff brought this suit for $428.00, being 4 per cent of the offer which he had obtained, against Emile Estrade and Herman Estrade in solido. The Court, a qua, dismissed the suit as to the son, Herman Estrade, and rendered judgment against the father, Emil? Estrade, as prayed for. Emile Estrade has appealed and plaintiff has acquiesced in the judgment by failing to appeal or to answer the appeal.

The payment of the commission is resisted on the ground that the act of the son, who did not own the property, was not binding on the father. It is argued that since the name oj. Emile Estrade does not appear in the body of the agency contract, nor, the word “agent” after the name of Herman Estrade, there can be no liability in Emile Estrade because he is not a party- to the transaction.

When the father was on the stand he was asked whether he had not directed plaintiff to “see my son, he has the matter in charge,” and he answered “that’s to get rid of real estate men.” It is apparent, therefore, that defendant referred plaintiff to his son as one having authority to act for him in the matter, and that plaintiff was justified in relying upon the authority thus conferred in conducting all future dealings in regard to the sale of the property with the son. It is immaterial that the father took this course in the belief that he was getting rid of the importunity of “real estate men.” Insofar as plaintiff is concerned there was every reason to believe that the father intended that the son should represent him in the transaction. The mere fact that the son signed the agency contract and the acceptance of the purchaser’s offer in his own name, without qualification, is immaterial.

“When the principal has actually or by his course of dealing, authorized the agent to execute contracts or make and endorse paper in his own name, the principal cannot escape liability on such contracts on the ground that they were executed in the name of his agent.”
C.- J. Vol. 2, Verbo Agency, Page 675.

See also:

Milligan vs. Lyle, 24 La. Ann. 144;

Maher vs. Overton, 9 La. 115.

For the reasons assigned, the judgment appealed from is affirmed.