author: LeBLANC, J.

text:
    No. 885
    First Circuit
    MANCHESTER SILVER CO. v. CLARA JEWELRY CO., INC.
    (December 8, 1931. Opinion and Decree.)
    (February 8, 1932. Rehearing Refused.)
    Laycock & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff alleges in its petition that it is the holder and owner, for value, of six promissory notes, dated New Orleans, La., March 8, 1931, drawn in its favor by Wasserman Bros., five of the six being for the sum of $55.20 each, and the sixth for the sum of $55.22; that the said notes were given in representation of the purchase price of certain merchandise which it sold to Wasserman Bros., who were engaged in the jewelry business in Baton Rouge where the goods were delivered to them. It alleges further on information and belief that during the course of the past year Wasserman Bros, transferred its entire stock of merchandise and fixtures located in its Baton Rouge store to the Clara Jewelry Company, Inc., without complying with the provisions of Act 270 of 1926, commonly referred to as the Bulk Sales Law in this, state, and that, as the stock of goods taken over is worth more than the amount due all creditors of Wasserman Bros., Clara Jewelry Company, Inc., is indebted unto plaintiff for the obligation of Wasserman Bros, to it. Wasserman Bros, is not made a party to plaintiff’s suit, but its rights against that firm and the individual members thereof are especially reserved. The prayer of the petition is for judgment against the Clara Jewelry Company, Inc., for the full amount of the notes sued on, including certain protest fees which plaintiff claims to have been obliged to pay.

It seems clear that the demand against the defendant, Clara Jewelry Company, Inc., is predicated upon its alleged failure to have complied with the provisions of the Bulk Sales Act. The allegations and prayer of the petition justify no other conclusion.

The defendant in its answer admits the transfer of the Baton Rouge store of Wasserman Bros, to it, and that there was no attempt made to comply with the provisions of Act 270 of 1926. It admits further that it probably has sufficient assets on hand with which to pay the indebtedness sued on, but denies that it had any knowledge of same, and specifically denies any liability on its part therefor.

After evidence had been taken, and the case continued for argument, counsel for defendant filed an exception of no cause or right of action which the trial judge does not seem to have passed on; his judgment being one rejecting the plaintiff’s demands and dismissing its suit. Prom that judgment, a devolutive appeal was taken.

If the defendant’s liability is to be measured by the terms of the Bulk Sales Law, Act 270 of 1926, as it appears from the pleadings that it has to be, it would seem that its exception of no cause or right of action was well taken.

The liability of the transferee in a sale of merchandise in bulk, is fixed by section 3, and nowhere in the act do we find that he is made a joint or solidary obligor with his vendor in favor of the latter’s creditors. Neither has he any contractual relation with these creditors under which he can be held responsible in a personal judgment in favor of any of them. The language of section 3 of the act is unequivocal, and makes him liable “at the suit of any creditor * * * to all the creditors of the said transferor as receiver for the fair value of all the property so transferred to him.” The remedy which his transfer- or’s creditor has against him, therefore, is, not to endeavor to obtain a personal judgment against him for the amount of his indebtedness, as has been done by the plaintiff creditor in this cáse, but to have him cited into court as one who has received goods out of the usual course of business, and have him account for the fair value of same, subject, of course, to any defense that he may validly urge. This same question was passed on by this court in the ease of General Tire & Rubber Co. v. Bullock et al., 14 La. App. 522, 130 So. 136, and we find no reason to change our views and the decision of that case.

That counsel for plaintiff herein appreciated the force of that decision, in which, after all, we were only following what we construed to be the interpretation of the statute by the Supreme Court in the case of Rosenberg & Sons v. Waguespaek, 167 La. 451, 119 So. 423, appears from his act in having placed of record, before the trial of the case, a declaration to the effect that-he was not asking a personal judgment against the defendant beyond the value of the stock which it had taken over from Wasserman Bros. That declaration, he contends, brings his demand within the terms of the act. But a plaintiff cannot, by a mere declaration such as was placed on record after this case had been called for trial, change the nature of his demand. After issue has been joined, he cannot, even by an amended petition, alter its substance ‘‘by making it different from the one originally brought.” C. P., art. 419.

Counsel for plaintiff contends further that under that allegation of the petition to the effect that the stock of goods taken over by the defendant is worth more than the amount due all creditors of Wasserman Bros., and the admission which he says defendant makes thereto, the demand may be considered as coming within the provisions of the statute. Defendant simply admits that it probably has sufficient assets with which “to pay the indebtedness herein sued for,” and specifically denies everything else. The indebtedness sued for, of course, is that due by Wasserman Bros, to the plaintiff only, and does not take into consideration at all the indebtedness due any of the other creditors.

Finally, counsel contends that, under the evidence admitted without objection, the pleadings have been enlarged so as to entitle plaintiff to relief and bring the defendant’s liability within the provisions of section 3 of the statute. Conceding that plaintiff is correct in his statement that, by the evidence submitted without objection, the pleadings, have been broadened, we still have to bear in mind that, under the section referred to, the suit of any creditor against the transferee is for the benefit of all the creditors, to whom he is liable only “as receiver for the fair value of all the property transferred to him.” As far as the record which is before us goes, there is. nothing to show who, besides the plaintiff, are the creditors of the transferor, what all the property transferred consisted of, no way in which its fair value can be fixed and the proportional rights of all the creditors can be established. The evidence submitted, therefore, has not added or supplied anything to the pleadings, and, even after giving it consideration, we fail to find that plaintiff has made out a case under the bulk sales statute.

The trial court properly rejected the demand as presented, and dismissed plaintiff’s suit.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3985
    Second Circuit (Second Division)
    WESSON v. WOODLEY, INC.
    (February 16, 1932. Opinion and Decree.)

      Wallace & Hardeman, of Benton, attorneys for plaintiff, appellee.
    Byron A. Irwin, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff, as holder and assignee of claims aggregating $1,669.20, for labor alleged to have been performed on what was known as. the John Woodley, Incorporated, well, located in Webster parish, and being the L. & A. No. 2, Bodcaw well, proceeded, so it is alleged, under Act No. 171 of 1928, and caused to be provisionally seized the well, rig, machinery, appurtenances, and appliances on the premises and used in connection with the drilling of said well. It is alleged that plaintiff, under the provisions of said act, has a lien and privilege upon the lease, machinery, and appurtenances to secure the pay-ment of these claims.

Defendant sued out a rule upon plaintiff to have the seizure dissolved upon the alleged grounds that plaintiff has no lien on the property seized by virtue of said Act No. 171 of 1928, or by virtue of any other law of the state. It is alleged that said act relied upon grants a privilege only to those performing labor or services “in the operation” of an oil or gas well, and does not grant a lien to those performing labor or services “in the drilling of a well not resulting in a' producer of oil and gas”; that there has been no well (meaning no producing well) located on the land embraced in the lease in question; and that the claims, herein sued on do not fall within the category of claims which may be protected or secured by the writ of provisional seizure.

Plaintiff in rule prays for the dissolution of the seizure and for judgment for attorney’s fees as damages in the sum of $250.

Upon trial of the rule, there was judgment setting aside and vacating the rule. No formal judgment of dismissal was read and signed. Motion for rehearing was filed and refused, whereupon answer of general denial to suit was filed.

Defendant on its own motion was permitted to bond the seizure and secure the release of the property.

The case was submitted for adjudication upon an agreed statement of facts, in which the amount of the claims sued on was admitted by defendant to be correct, owing, and unpaid. It was also admitted that the well on which the labor claims sued for “was not an oil or gas well, but on the contrary resulted in a failure, and was abandoned by the defendant.” It will also be here noted that, upon the trial of the rule to dissolve the seizure, an agreement was entered in the record that, in the event the defendant’s motion and rule to dissolve the seizure is sustained, the matter of the amount of attorney’s fees to be allowed plaintiff in rule to secure the dissolution of the seizure should be left to the discretion of the court, without the necessity of taking evidence on same.

Upon final trial on the merits, there was judgment in favor of plaintiff for the amount sued for, recognizing plaintiff’s lien and privilege upon the seized property, maintaining the seizure and ordering same enforced. No decree was entered as to attorney’s fees. Defendant prayed for and was granted orders of devolutive and suspensive appeal from that part of the judgment wherein the court held that “plaintiff has a lien and privilege on defendant’s oil and gas lease and the equipment used on said lease in the drilling of a well thereon in search of oil or gas,” also that part of the judgment "holding that the writ of provisional seizure herein sued out is valid and in maintaining and sustaining said writ,” and in the refusal or neglect by the court “to allow defendant reasonable attorney’s fees.”

Plaintiff has filed a motion to dismiss the appeal on the following grounds: (1) That on the 23d of June, 1930, judgment was rendered on the trial of the rule to dismiss, the seizure decreeing dismissal of the rule; that the appeal, which was not taken until December 8, 1930, was from that portion of the judgment on the merits only which was decreed upon in the judgment on the rule, hence, the appeal was not timely made; (2) that there is no evidence in the record disclosing the value of the property provisionally seized; hence no basis upon which the court could fix the amount of an appeal bond for the particular part of the judgment which was appealed from.

Counsel for defendant-appellant, in support of the right of appeal from the final judgment on the merits, points out that the judgment on the rule to dismiss did not work an irreparable injury to plaintiff in rule, as it is only where irreparable injury may result that a suspensive appeal may be taken from an interlocutory judgment, such as this was; hence plaintiff in rule had no right of appeal; and that it might obtain full relief by an appeal from the final judgment on the merits.

While the motion to dismiss does not appear to so indicate it, counsel for mover assert in brief filed that the motion is leveled at the fact that in this particular case the appeal is from only a part of the judgment on the merits.; that this cannot be done without appeal from the whole judgment on the merits; that, if this court does not have the judgment on the merits before it, it would not know in whose, favor the judgment on the merits was rendered. We fail to see the force of counsel’s argument. The whole record in the case is before this court, and the court will have no difficulty in being able to see in whose favor the judgment on the merits was. rendered on any phase of the case the court might .desire to know. It so happens that there are only certain issues formerly in the suit which are now being contested on appeal, but this is not at all uncommon.

The fact that defendant admitted owing the sum of money sued for, that there was judgment accordingly, which became final and unappealable, so far as that issue was concerned, does not preclude or forbid defendant from appealing from those decrees embraced in that same judgment which were not admitted. It was not admitted that plaintiff held a lien upon the property seized, or that the seizure was a valid one, or that plaintiff in rule was not entitled to attorney’s fees as damages for dissolving the seizure in event same should be finally dissolved. These are still live issues before the court. The only judgment from which, under the circumstances, an appeal could be taken, was that signed on December 8, 1930, and the appeal taken was manifestly timely.

Counsel complain that the lower court had nothing by which it could be guided in determining what court to order the appeal returned. In this connection it will be observed that the matter in dispute is as to the existence of a lien and its extent against certain property. The value of the property would not, we think, determine the amount in dispute, but the extent of the lien would more properly be the determining factor, which in this case is $1,-669.20. Also the amount claimed as attorney’s fees, which is $250, is in d.ispute. Either or both of these amounts apparently would govern, and are within the appellate jurisdiction of this court. We think the same principle applies here as was enunciated in Cousin v. St. Tammany Bank, 146 La. 393, 83 So. 685, wherein plaintiff appealed to the Supreme Court from a judgment dissolving a writ of injunction and rejecting her demand to prevent the sale of her separate property, valued at $2,500, seized in executory proceedings against her husband on a mortgage he had given on the property to secure a note for $1,740. The court first held that the only matter in dispute was the validity of the mortgage, and, since it amounted to less than $2,000, the court was without jurisdiction. On rehearing, the court decided that the issue was not the validity of the mortgage, but that it was the ownership of the property, which was worth exceeding $2,000, and the court recognized jurisdiction. In the present case, the issue is whether or not a lien seeking to collect a judgment for less than $2,000, exists against property valued in excess of that amount, and this court, we think, would therefore have jurisdiction.

The motion to dismiss the appeal will therefore be denied.

MERITS

Plaintiff, for his lien, relies primarily upon the provisions of Act No. 171 of 1928. The pertinent portion of the act reads as follows:

“Any person or persons who shall perform any labor or service in the operation of any oil or gas well or wells in this State shall have a lien and privilege on said oil or gas wells, rigs, and machinery, and appurtenances and appliances thereto attached for equipment and operation of the same, for the amount due for said labor or service.” Section 1.

The testimony, as disclosed in agreed statement of facts filed and used in evidence, shows that the labor and services alleged on were performed in the drilling of a well, in search of oil and/or gas, and not in the operation of a completed and producing well.

Defendant contends that the act from its wording does not create a lien in favor of labor and services performed in the work of drilling oil or gas wells, but that it applies only to labor or services performed in the operation of such wells after they have been drilled and while producing oil or gas.

It is well settled that liens and privileges do not exist unless expressly created by statute, and that they cannot be extended by implication or analogy, and that such statutes must be strictly construed. Applying these familiar principles of the law, the above-quoted statute, we think, cannot be held to apply to the facts in this case.

Plaintiff relies secondarily upon Act No: 134 of 1880, as amended and re-enacted by Act No. 172 of 1928. This act provides:

“Be it enacted, [etc.], that laborers and workingmen on buildings, streets, railroads, canals, ditches and other similar works, as well as those employed in drilling and operating oil or gas wells, when the services of such laborers and workingmen are engaged by the proprietor, or any agent' of the proprietor, upon any of the works, above mentioned shall have a first privilege upon the building, other works, wells, as enumerated above, upon which their labor has been bestowed.”

The most that can be said about the lien created by this act in favor of laborers in the drilling of oil or gas wells is that the lien attaches to the well only, not the drilling rig or machinery or other paraphernalia and appliances connected with the well, such as were seized in this. case. The well was not' seized, and it was the only thing apparently under the statute that could have been seized.

It is our view that the terms of the two acts relied on cannot be extended upon any of the theories or processes, of reasoning set forth by plaintiff. The courts are powerless to go beyond the plain wording of statutes of this character. They are to be construed strictly as written.

We know of no other statute upon the subject, have been cited to none, hence we must conclude that there does not exist any lien or privilege in favor of plaintiff or his assignors upon the property under seizure to secure these claims sued on, and therefore the seizure will have to be declared illegal and same dissolved.

Appellant has asked that, in the event of the dissolution of the writ of seizure, reasonable attorney’s fees be allowed for same. There is no testimony to show what a reasonable fee would be. It was. agreed in the trial of the rule to dissolve that this matter should be left to the discretion of the court without the necessity of taking ■testimony upon the subject. Since there is no testimony by which we may be governed, we shall impose no damages in this regard.

For the reasons assigned, that portion of the judgment of the lower court appealed from is reversed and set aside; and there is now judgment decreeing there to be no lien or privilege upon the property under seizure,- as growing out of the claims herein sued on. It is further adjudged and decreed that the writ of provisional seizure sued out be dissolved, and that plaintiff pay the costs of both courts incurred as a result thereof.


author: JANVIER, J. PER CURIAM.

text:
    No. 13,828
    Orleans
    YATES v. BATTEFORD
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (Decree amended, see attached opinion.)

      Neil A. Armstrong, Jr., and Emmet Alpha, of New Orleans, attorneys for plaintiff, appellee.
    R. A. Tichenor and Alex W. Swords, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, Yates, agreed to buy from defendant, Batteford, certain property, and the parties executed an agreement which, except for certain provisions having no bearing on the issues now involved, reads as follows:

“Agreement of Sale
“Frank P. Batteford to H. P. Yates
“It is hereby agreed by and between Frank P. Batteford, of the city of New Orleans, Party of the first part, and H. P. Yates, also of the city of New Orleans, party of the second part;—
“That the said party of the first part, his heirs or assigns for and in consideration of the price and sum of $2000.00, and the conditions hereinafter set forth will sell and transfer to said party of the second part with full warranty of title the following described property, to-wit: * * *
“And which said sum of two thousand dollars is to be paid in the following manner to-wit;—
“The sum of $400.00 cash, balance $1,600.00 represented by a promissory note drawn by party of the second part to the order of party of the first part, dated the date hereof and payable in monthly installments of $10.00 per month; — first installment payable 30 days from the date of these presents and the remaining installments are payable on the 24th day of each month thereafter together with interest at the rate of 7% per annum from date hereof until paid and of all taxes, assessments, insurance policies and impositions that may be levied upon said property subsequent to November 24, 1926. Said note being payable at Hibernia Bank & Trust Co., D. H. Holmes Branch, this city, interest on said note being payable semiannually.
“Upon the payment by the party of the second part of y3 of the total amount due under this agreement, at the time and in the manner provided above, the said party of the first part covenants and agrees to execute a Notarial act of sale of the said property to the party of the second part, his heirs or assigns; — the unpaid balance of the purchase price to be represented by a promissory note bearing interest at 7% per annum, secured by a vendor’s lien and all accessory privileges.
‘‘It is expressly understood and- agreed between the parties hereto that time is to be the essence of this contract, and that if the said party of the second part shall at any time fail to pay three consecutive installments, or be in arrears to the amount of three installments as they fall due, then all unpaid installments shall become dug and payable at once. Upon the failure of the party of the second part to pay the whole unpaid amount within 30 days from said default, then all the rights and interests of -the said party of the second part under this agreement, at the option of the party of the first part, shall at once cease and 25% of all payments made by the said party of the second part shall become forfeited -to the party of the first part as liquidated damages and all obligations, to sell under this act shall terminate.
“It is further agreed that no stipulation herein shall be construed as giving to the party of the second part any right of ownership (contingent or otherwise) in and to the said property until the payments herein provided for shall amount to the sum of $670.00, at which time this agreement shall then have the character of that referred to in Article 2456 of the Civil Code of Louisiana and then either party may re.quire a specific performance of this agree,ment of sale and the purchaser, at the option of the vendor, shall be personally liable for the unpaid balance of the purchase price. * * *
“Notarial act of sale shall be passed before R. A. Tichenor, Jr., N. P., at -the expense of the party of the second part.
“In witness whereof we have signed and executed these presents at the City of New Orleans on the 24th day of September, 1927.
“[Signed] F. P. Batteford
“H. P. Yates.
“Witnesses;
“[Signed] W. S. Armstrong,
“I. Bethancourt.”

Upon the execution of the contract, the sum of $400 was paid by Yates. Though there is some dispute as to whether Batteford himself received the said money, we find it unnecessary to determine -this issue, and shall, in our discussion of the more important questions, treat that payment as having been made directly to Batteford.

Thereafter, in addition to -the $400 paid when the contract was signed, Yates complied with his monthly obligation, and for sixteen months paid an additional sum of $10 each month, and then, no longer desiring the property, and having reached the conclusion that the contract was unenforceable, he discontinued making the installment payments, and brought this suit for the return to him of the amounts so paid, with interest. He also asks for the annulment of the contract and for the cancellation and return to him of the note for $1,600 referred to in the contract. By. supplemental petition he alleges that, in addition to the sum of $560 thus paid, he has, in accordance with the contract, also paid interest on the $1,600 note amounting to $109.21, and a portion of -taxes due on the property amounting to $3.85.

Batteford denies that the contract is a nullity, and, by way of reconvention, asks that the contract be specifically enforced, and seeks judgment against Yates for the balance.

In the district court, judgment was rendered for Yates ordering the cancellation and return of the note and -the return, with interest, of the amount paid, and annulling the contract as being void and unenforceable. Batteford has appealed.

The gravamen of plaintiff’s complaint is found in article 6 of the petition, which reads as follows:

“That the reason said contract is null and void ■ in law, is because it binds petitioner to the performance of stipulations, and leaves the defendant and said property utterly unbound, until petitioner should have paid $10 per month for a period of twenty-seven months.” (Contractual provision commencing with the words “no stipulation herein shall be construed,” etc.)

Plaintiff thus contends that Batteford, the owner of the property, and the property itself were both “utterly unbound,” and he argues, that, since one party to the contract could not be held, the agreement was a nudum pactum, and no one was bound thereby. It is unnecessary to do more than to state that the conclusion drawn is sound; that is that, where one of the parties is not bound, either personally or through a claim enforceable against his property, the contract is unenforceable against the other, and we therefore hasten to a consideration of the premise from which the conclusion is drawn, that premise being that neither Batteford nor his property was in any way bound by the agreement.

That the property itself was unbound and would remain unbound until the sum of $670 had been paid is evident from a mere reading of the agreement. It is very plain that the parties did not intend that any right in the property itself should pass until $670 had been paid, because it was expressly stipulated that no right of ownership (either contingent or otherwise) should come into existence until the payments amounted to that sum, and that thereafter, and only thereafter, the agreement should have the character of that referred to in article 2456 of the Civil Code. That article reads as follows:

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

The property then, as we have said, was not bound, and no right to specific performance came into existence. But is Yates correct in his above-referred to allegation that Batteford himself was unbound? Could he (defendant) have receded from the contract at will? Had he decided to do so, would Yates, have had any rights against him?

The right to specific performance is not the only one which may result where contracts looking to the sale and purchase of real estate are involved. Another right is the one which, under Civil Code, art. 2463, comes into existence where a promise to sell has been accepted and earnest money has been given. In such case no absolute right to the fealty itself comes into existence, but the personal obligation to forfeit the earnest money on the one hand, or to return double on the other, furnishes good consideration and makes the contract binding on both parties, without regard to whether there exists the right to enforce transfer of title.

The agreement readily divides itself into two parts. Under the first, prior to the time at which $670 was to have been paid, it was an accepted offer to sell, accompanied by the giving of earnest, whereas, under the second part, if $670 had been paid, it would have become an actual agreement of sale, which, under many decisions of our courts, is equivalent to a sale in that specific performance thereof may be decreed.

True, our Code says (article 2462) that a promise of sale amounts to a sale; but by a settled jurisprudence, this means no more than that the contract is susceptible of specific performance. Girault v. Peucht, 117 La. 276, 41 So. 572. See, also, Bennett v. Puller, 29 La. Ann. 663, and McDonald v. Aubert, 17 La. 450.

That the deposit of $400 and the subsequent installments are not in the contract referred to as being in part earnest money is of no importance, for, in McCain v. Hicks, 150 La. 43, 90 So. 506, is found the following:

“It is immaterial that the word ‘earnest’ is not used in the agreement under consideration in this case. The contract being sued on being a promise of sale, and not a sale, the money advanced by plaintiffs to bind it was earnest, under the law, whether the parties so designated it or not, and, in case of a promise to sell, ‘earnest,’ or the sum of money advanced as a guaranty of the execution of the contract means that either of the parties may withdraw from the contract, the one by forfeiture, the other by paying double, and earnest money is paid to enable the contractants to retain the privilege of withdrawing from the contract.”

Nor do we consider that the situation is altered by the fact that the contract provides for the forfeiture, not of the whole amount paid up to the time of forfeiture, but only of 25 per cent thereof.

The parties may make their own contracts, and, however unusual they may be, they form the law between them, and should be enforced so long as they do not contravene good morals or public policy. In Salles, v. Stafford, Derbes & Roy, Inc., 173 La. 361, 137 So. 62, 63, the Supreme Court said:

“All things not forbidden by law legally become the subject of or the motive for contracts. Civ. Code, art. 1764. And agreements legally entered into have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed in good faith. Civ. Code, art. 1901. When the intention of the parties- is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to -that effect, unless it be some prohibition or other provision which the parties had no right to modify or renounce. Civ. Code, art. 1963.
“The policy of the law is that all men of lawful age and competent understanding shall have the utmost liberty of contracting, and their contracts, when freely and voluntarily made, are not lightly to be interfered with by the courts. Hence the contract herein submitted for interpretation must be held sacred and be judicially enforced, unless the intent of the parties is wholly unascertainable or is clearly unlawful.”

In Stewart, Hyde & Co. v. Buard et al., 23 La. Ann. 201, the Supreme Court maintained the validity of a contract sought to be set aside as having been improvidently entered into, and said:

“The contract may have been rash, but it was. not unlawful. * * *”

Here the parties agreed between themselves that Yates should pay to Batteford $400 cash and 10 per cent per month for 27 months, and that during those 27 months Yates might recede from' the contract by surrendering 25 per cent of the amounts paid up to the time that he might elect to recede. That 25 per cent so paid was earnest money. What matters it that the parties may have called it liquidated damages? Does not the Supreme Court, in Legier v. Braughn, 123 La. on page 466, 49 So. 22, refer to forfeited earnest money as “damages for the breach of a promise of sale”? Is it of any importance that the contract did not reciprocally stipulate that the prospective vendor might recede from his promise to sell by returning the total amount paid, together with 25 per cent thereof? We think not. Rarely, indeed, in contracts, looking to the sale of realty in connection with which earnest is given, is it stipulated that the prospective purchaser may recede hy forfeiting the earnest money paid and that the prospective vendor may recede hy returning double. The codal provision (article 2463) writes that reciprocal obligation into the contract. Usually the stipulation merely provides for the deposit by the purchaser of the pum agreed upon. That is all that is necessary.

Here the parties provided for the deposit and for the surrender by one df 25 per cent of that deposit in case of default on his part. The codal article wrote into the contract the obligation on the part of the other to forfeit, in case of his default, a like sum, to-wit, 25 per cent of the amount of the deposit.

Nor do we deem it important that, in addition to the original deposit, further installments were provided for. Of each installment paid, 25 per cent became additional earnest money, and, in event of default by either party, the damages which the defaulting party owed to the other were, as each installment was paid increased by the sum of $2.50.

It is true that, out of the $400 originally deposited, only $100 was earnest money, and that, out of each subsequently paid $10 installment, only $2.50 constituted additional earnest money; but the fact that, in addition to the earnest money provided for under the contract, the purchaser chose to agree to deposit with the vendor an additional sum and to pay interest - on his note and to assist in the payment of taxes, does not, in our judgment invalidate an otherwise legal contract. All money over and above the earnest stipulated for, except the interest paid and the taxes, was merely deposited to await the consummation of the transaction. If, through fault of either party, the contract was never consummated, then such excess deposit was to be returned to the purchaser.

If the contract had not contained the stipulation which, in effect, prevented the right to specific performance from coming into existence until $670 was paid, then such amount as was deposited over and above the original earnest money might have been considered as a payment on t account of the purchase price, and might, of itself, have created the right to specific performance. See McCain v. Hicks, supra.

In Middleton v. Natal, 9 La. App. 596, 121 So. 681, 682, is found a situation in some particulars resembling that which confronts us here, and, while it is true that in that case we said: “True enough, he [the seller] was in no manner bound to deliver the property to defendant, unless and until the note was paid, but in the meantime, and pending that payment, defendant was absolutely bound to retain title to and possession of the property, so that he would be in position to deliver title and possession thereof upon payment of the note, * * *” and true it is that the language above quoted would, were it not followed by a qualifying clause, indicate that such a contract creates a right in and to the property itself, nevertheless we find immediately following the language just above quoted the alternative obligation, "or to respond in damages in the event of his failure to do so.” So that, in order that a contract may create reciprocal rights and obligations — in other words, may be mutual-it is not essential that it give to one of the parties the right to enforce specific performance of the obligation to deliver title. All that is necessary is that an agreement of sale be balanced by an agreement of purchase, or that a promise to sell be balanced by a promise to buy. Here we find a promise to sell unenforceable by specific performance, but not void because unenforceable by that particular means, but, on the contrary, absolutely effective and binding personally because balanced by the reciprocal personal obligations of the two parties — the one to forfeit the deposit and the other to return double the amount thereof.

The parties must have meant something by their contract. It cannot be presumed that they intended solemnly to enter into a contract which would have noYegal effect. We must seek to arrive at the intention qf the parties, and must attempt to find in that intention a purpose enforceable at law.

We are of the opinion, then, that the contract, as entered into between the parties, was legal and binding, and that it created in each the rights which spring from an agreement to sell, coupled with the giving of earnest. It follows then, since Yates refused to continue making the payments required by the contract, that he was in default and forfeited such amount as had up to that time been deposited as earnest; in other words, 25 per cent of the $560, which at that time had been paid. The balance, however, should be returned by the depositary to plaintiff. But he is not entitled to - interest on the deposit which he made, since we find in the contract no stipulation to that effect.

We do not think that it can be said that Yates assumed the obligations of an owner. Batteford had the full right to require i?uch stipulations as were satisfactory to him, and among his requirements were those with regard to interest and to the payment of such sum as. he might be required himself to pay for taxes. In consideration for those obligations assumed by Yates, Batteford, by accepting earnest money, bound himself either to hold the property in order to deliver title, or to return the earnest money and forfeit a like amount. Both parties were thus, bound;if not for identical amounts, at least for cash, and for an amount sufficient to constitute real consideration and to prevent our holding the agreement to be a nudum pactum.

“The question of adequacy of the consideration is a matter for the parties themselves to determine.” Blanchard v. Haber, 166 La. 1014, 1018, 118 So. 117, 119.

The interest paid on the note and the amount paid to defendant for taxes, due on that part of defendant’s property which was the subject of the agreement were amounts paid because plaintiff consented thereto because he felt sufficiently interested in obtaining a contract looking to the purchase of the property to agree that, pending His completing his payment, he would pay the said interest and the said taxes. He well knew that, if the transaction was never consummated, he would lose the interest and the taxes, which he was to pay pending completion of the transaction, but whether he made a wise bargain does not concern us. His. agreement was not against good morals, and was not against public policy, and should be enforced. In Blanchard v. Haber, supra, we find an interesting case, in which Blanchard, who operated a large dental office, employed Haber to work as a dentist in the office; the agreement being for a stipulated monthly compensation, with the right in either party to cancel on giving thirty days’ notice. Had the contract contained no other stipulations, it would have been entirely binding and valid, but it also contained a stipulation that, if either party should cancel the contract, Haber, for a period of ten years, should not have the right to practice dentistry within a distance of five squares in any direction from the office operated by Blanchard. The court held that Blanchard was not entitled to an injunction preventing Haber from practicing dentistry within the limits prescribed because there was no consideration given to Haber for his agreement to refrain . from so practicing in that district.

It is true that, so long as Haber worked for Blanchard, he received regular compensation, but that compensation was given for services rendered, and could not be said to be consideration for the agreement on his part to refrain from practicing dentistry in the prescribed area in the event of termination of the contract.

Here we find no such situation. The property owner, it is true, could terminate the contract at any time that he might see fit, but, if he did so, he immediately took on his shoulders the obligation of returning double the amount of the deposit. Thus it cannot be said that he had the right to declare the contract at an end and to obtain the benefit of the taxes and interest already paid him, without having given consideration therefor, because the consideration .which he would be required to give would be the return of the earnest money, plus a like amount, or, in other words, as it is stated in the code, to return the double.

In a plea of estoppel filed in this court, Yates maintains that, since Batteford in his answer contended that the contract should be specifically enforced, and that Yates should be ordered to pay the total remaining unpaid portion of the purchase price, Batteford has thereby deprived himself of the right to retain the earnest money paid, if we come, as we have, to the conclusion that the contract is a promise of sale with the giving of earnest.

We do not believe that any estoppel has been created by Batteford’g, answer. Many times parties have asked for specific performance, but have been allowed to recover only earnest money. It would, indeed, be a harsh doctrine which would require one, who is a party to the contract looking to the sale of realty, and who believes that the contract is specifically enforceable, to lose his right to earnest money solely because of his belief in his right to specific performance. The other party here has been led into no false position, and has made no sacrifice of any right as a result of defendant’s contention for the whole amount of the stipulated purchase price.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended so as to read as follows:

It is ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, H. P. Yates, and against the defendant, Frank P. Batteford, in the full sum of $373.30, with legal interest thereon from judicial demand until paid, and canceling the said note for $1,600 and canceling the contract of September 24, 1927, plaintiff and appellee to pay costs of this, appeal; all other costs to be paid by defendant.

ON APPLICATION FOR REHEARING

PER CURIAM.

Due to a miscalculation on our part the decree rendered by us, among other things, condemned Batteford, defendant, to pay to Yates, plaintiff, the sum of $373.30 with interest, etc. The amount should have been $420 with interest, etc., instead of $373.30.

It is therefore ordered, adjudged, and decreed that the decree rendered by us- on January 11, 1932', be and it is amended so as to correct the figures $373.30 as they appear in the original decree to read $420.

The rehearing requested is refused.


author: McGREGOR, J.

text:
    No. 4164
    Second Circuit
    FIRST NATL. BANK IN GIBSLAND ET AL. v. RHODES' HEIRS
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    Goff & Goff, of Arcadia, attorneys for plaintiffs, appellees.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellants.
   McGREGOR, J.

F. B. Rhodes died in the parish of Bienville, this state, on or about August 18, 1930, leaving Mrs. S. A. Rhodes as his widow and surviving spouse, and Mrs. Rosa Lee Canfield, Mrs. Martha Shaffer, Mrs. Nellie Willis, Mrs. Gussie Johnson, G. H. Rhodes, and A. M. Rhodes as his sole and only heirs at law, being the issue of his marriage with his wife, the said Mrs. S. A. Rhodes. During his lifetime there was accumulated certain real and personal property by the community existing between him and his said wife. On October 1, 1930, Mrs. Rhodes filed an ex parte application to have herself recognized as the . owner of an undivided one-half interest in the property belonging to the community at the time of the death of her husband, and to have the above-named children recognized as the sole and only heirs of her deceased husband, and, as such, the owners of the other undivided one-half interest in said property, and to have herself decreed to be entitled to •the possession of her undivided one-half interest as owner and to be entitled to the possession of the heirs’ undivided one-half interest as usufructuary. The usual order was signed by the judge of the district court, and, pursuant to that order, an inventory of the property belonging to the said community was made by a notary public on October 2, 1930. On October 4, 1930, the judge of the district court signed an ex parte judgment recognizing the widow and heirs as owners of the. property of the community in accordance with the prayer of the widow in her application, and sending the widow in possession of one-half of the property as owner and of the other one-half as usufructuary. None of the heirs was party to these proceedings. On October 9, 1930, the First National Bank in Gibsland, one of the plaintiffs in the present suit and a creditor of the said F. B. Rhodes at the time of his death, filed an application- for a rule to issue directed to the heirs and children of the said deceased ordering them to appear before the court at a time and place to be fixed, for the purpose of declaring whether they would accept or renounce the succession of their deceased father. The court signed the order as prayed for, and October 20, 1930, was fixed as the date for the hearing on the rule. On October 18, 1930, the heirs filed an exception of prematurity, which was overruled. On the same day, Mrs. S. A. Rhodes executed a blanket mortgage payable to her own order for $5,000, covering her interest in the real estate formerly belonging to the community existing between herself and her deceased husband, and all the heirs except G. H. Rhodes executed similar mortgages for $1,000 each on their respective interests in the said property. In these mortgages, the heirs declared that they had accepted the succession of their father. No such mortgage was executed nor declaration made at the time by G. H. Rhodes. Later, however, on February 27, 1931, all of the heirs appeared through their attorney and answered the plaintiff’s petition and specially declared that they had accepted their father’s succession, and averred that plaintiff’s remedy, if any, was by other processes.

On November 5, 1930, the present suit, with the First National Bank in Gibsland and the Gibsland Investment Corporation as plaintiffs, was filed. In the petition, it is alleged that the two plaintiffs constitute a majority in amount of the creditors of the succession of the deceased F. B. Rhodes, and that they had filed for record the evidence of their respective claims, and that they had been recorded in the mortgage records, of Bienville parish. The prayer of the petition is: That they be recognized as creditors of the succession of Rhodes for the amounts set forth in their respective claims; that the heirs named as defendants be required to give security within such time as may be fixed by the court for the payment of their claims; and that in default of the furnishing of the said surety, an administrator be appointed to administer the succession. They pray further for judgment decreeing a separation of patrimony, separating the property of the succession from that of the defendants, and ordering the plaintiffs’ claims to be paid from the effects of the succession by preference and priority over the creditors of the heirs.

The defendants filed an exception of misjoinder of plaintiffs and defendants, which was overruled. An exception of no cause or - right of action was then filed, setting foith that all the defendants had accepted the succession. This exception was referred to the merits, an answer was filed, the case was tried on May 19, and on May 29, 1931, judgment was rendered in favor of the plaintiffs recognizing them as. creditors of the succession of F. B. Rhodes, requiring the defendants to give security for the payment of plaintiffs’ claims on or before June 15, 1931, and, in default of giving the said security, it was ordered that an administrator be appointed; there was. further judgment ordering a separation of patrimony as prayed for. From this judgment, the defendants have appealed.

OPINION

The law governing this case, giving the plaintiffs the right to require security for the payment of their claims against this succession or the appointment of an administrator in default of the giving of the required security, is 'found in article 1011 of the Revised Civil Code of Louisiana, which reads as follows:

“The heir, who has accepted the succession simply, may even be compelled to make an inventory of the succession, and to give security in the same manner as in the case of the benefit of an inventory, if a majority in amount of the creditors of the succession, either present or represented in the parish where the succession is opened, require it; in default of such security, there shall be appointed an administrator to administer the succession, according to the provisions of the section relative to the benefit of inventory.”

At the trial, it was proved that the heirs had accepted the succession, and that the plaintiffs represented a majority in amount of the claims against the succession. The judgment requiring the giving of security and ordering an administrator of the succession in default of the giving of said security is therefore correct. The law giving to the creditors, the right to demand a separation of patrimony is found in article 1444 of the Revised Civil Code:

“The creditors of the succession may demand, in every case and against every creditor of the heir, a separation of the property of the succession from that of the heir. This is what is called the separation of patrimony.”

In order to exercise this right, it is necessary that within three months from the express or tacit acceptance of the succession by the heirs a suit must be instituted, and the petition in the suit must contain a sworn declaration of the creditor or creditors that they believe the heirs are embarrassed with debts, and that they have reason to believe that personal debts will absorb the effects of the succession to their prejudice. Civ. Code, arts. 1456 and 1457. All these conditions and requirements were fulfilled and complied with by the plaintiffs, and therefore that portion of the judgment ordering a separation of patrimony is also correct.

There is no merit in the exception of misjoinder filed by the defendants, and it was properly overruled. Articles 1011, 1452, 1456, and 1457 of the Civil Code specially contemplate that a suit of this nature shall be brought jointly by a majority in amount of all the creditors, and that it may be brought against some or all of the heirs.

One of the plaintiffs in the case is the First National Bank in Gibsland and the notes that evidence the debts claimed by it are made payable to the First National Bank, Gibsland, La. Defendants, urge that this variance is fatal, and that this plaintiff has no standing in court to bring suit on the notes made payable as they are. It is clear that the words “in Gibsland” in the name of the plaintiff were placed there to designate location. The words “Gibsland, La.” designate the location as effectively as do the words “in Gibsland.” It is observed from the notes filed in evidence that the plaintiff has its name printed on the face of the notes and in its rubber stamp indorsements as First National Bank, Gibsland, La. This is sufficient, and there is no merit in defendants’ contention in this regard. The note on which the claim of the Gibsland Investment Corporation is based is made payable to, and indorsed by, the First National Bank, Gibsland, La. Defendants raise the same objection to that claim that they raised against the bank’s claim. Certainly if the note is transferred to the Gibsland Investment Corporation by indorsement in the exact words of the payee, there can be no possible question raised as to the validity of the indorsement or the right of the indorsee or holder to bring suit on it.

The appellees have answered and ask that the judgment appealed from be amended by fixing a new date for the giving of security by the defendant, for the reason that the one fixed by the lower court has long since passed. It needs no argument to hold that the judgment should be amended in this respect.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, amended so as to order the defendants to give security for payment of plaintiffs’ claims within ten days from the time when this judgment shall become final; and, as thus amended, the judgment is affirmed, with all costs of both courts.


text:
    No. 4176
    Second Circuit (Second Division)
    ELSTON, PRINCE & McDADE, INC., v. FIRST STATE BANK OF PLAIN DEALING
    (March 16, 1932. Opinion and Decree.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Smitherman, Tucker & Mason, of Shreveport, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff corporation brought this action to recover from defendant bank the sum of $508.94, with legal interest from judicial demand to cover interest at the rate of 4 per cent per annum on plaintiff’s daily balances of deposits subject to check made with defendant during the period from January 1, 1924, to April 30, 1931, under an alleged oral contract and agreement to that effect.

It is alleged that the agreement was entered into on October 23, 1923, by and between J. W. Elston, Jr., as representing plaintiff, and Dr. S. E. Prince, as president of and representing defendant; that the contract which was oral was as follows:

Paragraph 4. That the said defendant agreed to pay plaintiff 4 per cent per annum on daily balances on deposits made by the plaintiff in said bank; plaintiff was to be credited with interest at the rate of 4 per cent per annum on all daily balances that it placed with said bank.

Paragraph 5. That this contract was carried into effect, and that plaintiff received credit of interest on all balances up to January 1, 1924, but that since that date they have received no further credits. _

Plaintiff attaches to and makes part of the petition an itemized statement which it is alleged shows the correct amounts due under the contract, aggregating the sum of $508.94. It is further alleged that demands have often been made of said S. E. Prince, president, and he had often promised and instructed John J. Doles, the cashier of said bank, to give plaintiff the credits due plaintiff but none were ever received.

Defendant filed exception of no right or cause of action which was- tried and overruled by the court; whereupon defendant filed answer of general denial of liability; averred that it rendered monthly statements to plaintiff since January 1, 1924, and never on any of said statements was plaintiff credited with any interest ‘ on the balances of deposits; that plaintiff never at any time complained or objected, and plaintiff is now estopped to deny the correctness of said statements.

Defendant pleads, in the alternative, that, if S. E. Prince made any such agreement as alleged, he acted beyond the scope of his authority in so doing, and defendant is not bound thereby.

Plaintiff prosecutes this appeal from a judgment rejecting its demands.

At the beginning of the trial, and before the testimony was begun to be offered, defendant entered the objections to the introduction of any evidence in the case (quoting) :

“On the ground and for the reason that the plaintiff in paragraph 3, alleges that the contract to pay interest herein involved was an oral contract, and an agreement to pay conventional interest according to Civil Code, 2924, must be in writing; and testimonial proof is not to be admitted in such cases.”

These objections were overruled by the court, and testimony was adduced subject to the objections made and counsel’s exceptions to the court’s ruling.

The exception of no cause of action filed does not disclose the grounds upon which same was made. However, it appears from the record as made up that the exception was leveled at the allegation of the petition wherein it alleges an oral agreement to pay the interest claimed, defendant contending that, under article 2924 of the Revised Civil Code, such a contract must be in writing.

After the case was submitted, the judge, according to his written opinion filed in the record, changed his views regarding the exception filed, and his former ruling on the objections made to the testimony. He stated (quoting from the opinion);

“After further consideration of the law, as it appears applicable here, I am of the opinion that the objection to oral testimony to establish an agreement to pay interest should have been sustained. Conventional interest may be fixed at any rate not exceeding 8% per annum, but must be fixed in writing. No interest is due on demand deposits, in banks until after payment of the balance on deposit has been demanded and refused, and then it would be at the rate of 5% per annum. This conclusion is of course, sufficient to defeat the demand of plaintiff, but it is my opinion that if all the testimony offered should be considered that even then the plaintiff has failed to meet the burden that is on it to establish its claim.”

Thus it is seen that the judge found for the defendant, both upon the law and facts. We are in full accord with the learned trial judge in his views as thus expressed.

Plaintiff’s counsel in brief filed quotes from Act No. 193 of 1910, sec. 7, to the point that banks have the right to receive deposits and pay interest thereon, as follows:

“That any State banking association, savings bank or trust company receiving funds as deposits and contracting and agreeing to pay five per cent or more per annum interest therefor shall class the same as borrowed money and certificates shall be issued therefor.”

We do not understand the act to mean that banks are permitted to enter into such contracts orally. On the contrary, it provides that certificates shall be issued to the depositor, which necessarily implies a written contract. , The same section of the act continues:

“All such deposits shall be carried on the books of the bank receiving the same as 'certificates of deposit for borrowed money.’ ”

The fact that no mention is made in the act as. to whether banks are empowered to pay interest on deposits at a less rate than 5 per cent per annum, and how such deposits shall be characterized, does not, as we take it, mean that, if and when a lesser rate is to be paid, it can be done orally and without a contract expressed in writing. Act No. 100 of 1904 provides:

“That all banks duly and legally organized under the laws of the State may issue interest-bearing time certificates to depositors.”

This act no doubt contemplates giving banks authority to accept deposits at a less rate of interest than 5 per cent. But it will be noted that evidence of such payment of interest is to be in writing, to-wit: “Interest-bearing time certificates.” This class of business is apparently differentiated from the former, in that the former is to be carried as loans upon the bank’s books whereas the latter is carried as “interest-bearing time certificates.” In both cases, written interest-bearing certificates are provided for in the statute, which clearly indicates that evidence of the contract to pay interest shall be in writing.

Plaintiff’s counsel, arguing to the point that the transaction had with defendant constituted a loan, quotes from defendant’s charter wherein it recites that it shall have the right “to exercise all incidental powers necessary to carry on its business,” which language counsel interprets to mean power “to borrow money and pay interest therefor.” This is true, but that does not mean that a bank or its officers can contract orally to pay interest on borrowed money, nor that it can be done without a resolution of the board of directors- authorizing same, spread upon the minute book of the bank.

Counsel would have the court -take the tfiew that Dr. Prince, as president of defendant bank, was authorized by virtue of his office to borrow money and contract to pay interest for same or accept deposits and bind the bank by oral contract to pay interest on daily balances, just as in his judgment he deemed proper. Such interpretation cannot, we think, be placed upon the statutes governing the business of banking.

In Carter v. Brock, 162 La. 20, 110 So. 71, 74, the court, in discussing the provisions of Act No. 193 of 1910, and the amendments thereto, said:

“The statute does not prohibit an officer of a bank from borrowing money for it * * * but the prohibition relates only to the officer’s doing so without a proper resolution of the board of directors, entered upon the minutes.”

Regardless of whether the act of Dr. Prince, in accepting plaintiff’s deposits and agreeing to pay interest on daily balances, can be termed a loan to the bank or not, he had no authority to so bind the bank without being specially authorized by resolution of the board of directors to do so. 1-t is admitted that no such resolution was ever passed.

Counsel insists, that, inasmuch as the bank paid plaintiff interest for the months of November and December, 1923, without objections, it amounted to a ratification of the alleged contract, and -the bank was es-topped from denying same thereafter. It must be remembered that the board of directors knew nothing of Dr. Prince’s acts in this particular until several years, later, and, when its attention was called to what had been done, it promptly repudiated the act and denied liability. The bank certainly cannot be estopped under such circumstances.

Counsel cites the case of Haas v. S. Gumbel & Co., 155 La. 421, 99 So. 350, as an example of a case where the court enforced a contract to pay conventional interest, although not reduced to writing. Counsel is in error as to the court’s so holding in the cited case. The court found that the party claiming the 8" per cent interest had written the other a letter stipulating interest at that rate, to which the other party replied by letter accepting the stipulation. Thus the interest, which was conventional, was agreed upon in writing.

Counsel also cites Duruty v. Musacchia, 42 La. Ann. 362, 7 So. 555, 556, to the point that:

“In the absence of any written evidence of an agreement, the defendant can be made to pay legal interest,” citing Civ. Code, art. 1940, which reads: “In cases where no conventional interest is stipulated, the legal interest, at the time the contract was made, shall be recovered.”

Counsel must overlook the fact that plaintiff in the present case is suing under an alleged contract stipulating interest — not one wherein no interest is stipulated. It would therefore seem that the case and article cited have no application here. Besides, it is well known that daily balances on ordinary bank deposits subject to being checked out at will bear no interest, unless, of course, by some special agreement to that effect; and such agreement, we think, must be in writing.

There is a distinction between a deposit and a loan. We are warranted in taking judicial notice of the fact that, in the banking business, it has been and still is customary to treat loans and deposits as distinct and essentially dissimilar transactions. A loan is defined as a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrowed. It is. presumptively made upon interest. The contrary is true of a deposit, in that the depositary must deliver the deposit on demand. A deposit is made primarily for the benefit of the depositor, while a loan is made for the benefit of the borrower. In the instant case the parties themselves treated the transaction as a deposit, tried the case below on that theory and the court found that a deposit was made. We say this because plaintiff apparently has shifted its position in that it claimed interest on daily deposits, and now endeavors to have the court construe the transaction as a loan. The two positions are inconsistent. We prefer to treat the case as that of an ordinary deposit to plaintiff’s, checking account in defendant bank. Such is disclosed by the record. Under these circumstances defendant owed plaintiff no interest on such an account, without a special agreement or contract entered into between the parties for interest. Such would necessarily have been conventional interest.

It is clear, we think, that the particular transaction alleged upon by plaintiff, and whereon recovery is claimed, involves, a claim for conventional interest.

Article 2924 of the Revised Civil Code is the basic law of this state on conventional interest and the rules of evidence in regard to its proof.

The article plainly says (quoting from Dart’s revisions recently published):

“Interest is either legal or conventional. Legal interest is fixed at the following rates, to-wit:
“At five per cent ón all sums which are the object of a judicial demand. Whence this is called judicial interest;
“And on sums discounted at banks at the rate established by their charters.
“The amount of the conventional interest can not exceed eight per cent. The same must be fixed in writing; testimonial proof of it is not admitted in any case.”

Thus we see that proof of conventional interest by oral testimony is prohibited under the plain letter of the law. There are numerous decisions of the courts of this state recognizing and enforcing the law as announced by the Code, cited under the article in question.

It will be noted that the law does not fix the minimum rate chargeable for conventional interest. ' It is left to the parties to fix the rate in their contract. If the rate fixed be 4 per cent, there is no less reason to term it conventional interest, and that the fixing should be in writing, than if it was 8 per cent. The same law would govern the former as would the latter.

As the defendant’s learned counsel have well said in their brief:

“The requirement of Article 2924, requiring conventional interest to be fixed in writing refers to the stipulation for conventional interest 'and not merely to the rate of conventional interest.
“The more logical distinction between legal interest and conventional interest is this, — that legal interest is interest imposed by law, and conventional interest is interest resulting from agreement between the parties. For example, — if -the prohibition of the article refers only to the rate of interest in excess of legal interest, in cases where the law imposes legal interest of five per cent, interest between five and eight per cent would have to be stipulated in writing,' but with respect to the contract where there would be no. legal interest, as in the case of .a deposit of money, the article would permit the showing of the agreement to pay interest by testimonial proof; the law would require in the first case proof in writing to show interest that could only result from convention, while in the latter case it would permit testimonial proof to show a convention to pay interest where none would otherwise be due, and which could result only from convention.”

It is difficult, as suggested by counsel, to imagine a case where the rate of interest could be fixed in writing that would not at the same time provide for the agreement to pay interest. Laurent, a learned Belgian commentator on the French Civil Code, expressed the idea in the following words:

“Nevertheless, the rate is part of the convention; it is then impossible that the convention be solemn for the rate, and not solemn for the stipulation of interest itself.” T. 26, No. 527, p. 551.

While there do not appear to be any decisions of the courts of this state involving stipulation of interest at less than the legal rate, there are several cases in our jurisprudence that lead unerringly to the conclusion that a writing is necessary to prove the contract to pay conventional interest, regardless of whether or not the rate is above or below the legal rate of 5 per cent. In Delacroix v. Prevost, 6 Mart. (O. S.) 278, the court said:

“We are of opinion, that the legislature did not intend to make writing an essential requisite in a convention fixing the rate of interest to be paid, but that its object was only the exclusion of the testimonial proof of such a convention. For if the oral convention was to be absolutely null and void, it would have been absurd to have gone further, and forbid the introduction of testimonial proof of it, since such kind of proof or any other could not be of any avail. The legislature meant only to afford' to a defendant, from whom conventional interest is demanded, a shield to guard him against suborned witnesses. * * * No injury is done to the defendant, if he be compelled to pay. Neither is any injury done him, if he be interrogated and required to answer thereon on oath. No man can be listened to, who complains that he is put in danger of perjuring himself.”
“Conventional interest must, according to law, be fixed by writing; and testimonial proof of it is not admissible in any case.” Kenner’s Syndics v. Sims, 6 Mart. (N. S.) 66; Fishel v. Irwin, 132 La. 349, 61 So. 397.
“Conventional interest must be fixed in writing. The custom of merchants cannot change this law.” Lee v. Goodrich, 21 La. Ann. 278.
“Notwithstanding the strong terms used in this article it has been held by our predecessors that writing was not of the essence of an agreement to pay interest, and that the Legislature only intended to exclude testimonial proof of such an agreement.” Semere v. Semere, 10 La. Ann. 704;, Civ. Code, art. 2895; Succession of Peytavin, 10 Rob. 118.

In the Peytavin case, last cited, the court says:

“It is of the essence of legal evidence in support of it [a promise to pay conventional interest], that it be written.”
The French commentators on article 1907 of the Code Napoleon (our article 2924 being practically th® same) agree with this view. Carpentier DuSaint Repertoire du droit Francais, verbo, Interests, No. 101, says:
“Pont thinks * * * that the necessity for writing concerns the stipulation for interest itself. Otherwise, he says, Article 1907 would be without object, since the law of September 3, 1807, has established a legal rate.”
“The stipulation for interest ought to be made in writing, testimonial proof is not admissible to establish such a stipulation, even when the amount involved is less than 150 francs” — citing numerous authorities. Fuzier-Herman, Code Civil Annote, art. 1907, N. 5.

See, also, Sirey, Civil Code Annote (art. 1907, No. 1) which, identical with the above, also cites still further and additional authorities.

Dalloz, Civil Code Annote (art. 1907, N. 5) says:

“Every stipulation for interest ought to be in writing, proof by witnesses of a verbal convention is inadmissible, even when the value in question is less than 150 francs.”

When the Code Napoleon was adopted in 1804, there was no limit on the amount of conventional interest. A limit was imposed by the law of September 3, 1807. Dalloz says that this law “did not abrogate the dispositions of Article 1907, relative to the necessity for a writing which stipulates the rate of conventional interest.” Code Civil Annote, art. 1907, N. 4.

The French authorities, therefore, commenting on the article of the Code Napoleon, to which our codal provisions may be traced, are not inappropriate here. From these we quote as follows: Baudry-Lacantiniere T. XXIII, p. 508 et seq. states:

“902. But a formal convention is. necessary for the loan to produce interest and it is necessary that the will of the parties be expressed in terms which leave no doubt; in other terms, the judge cannot seek from circumstances the tacit will of the parties. The results from the word stipulate employed in Art. 1505, according to which one may stipulate interest and yet more so from necessity for a writing imposed by Art. 1907. * * *”
“908. That which ought to be fixed in writing, is not only the convention stipulating that interest will be due, but also the very rate of the interest or at least enough indications that the rate may be calculated.”

Mourlon, vol. 3, page 392:

“Thus the stipulation for interest and the rate at which the loan was made could not be proven, either by witnesses or the admission of the debtor; written proof alone was admitted.”

Duranton., vol. 17, No. 598:

“But, with the view, probably, of placing a check on the cupidity of lenders, the same article (1907) demands that the rate of conventional interest be fixed by writing. That means- clearly to say that proof by witnesses of a verbal convention for interest is inadmissible, even when the value in question is less than 150 francs.”

From the history of the law, as embodied in article 2924 of our Revised Civil Code, and the interpretations placed thereon by eminent students and commentators of the Code Napoleon, from which our present article is derived, it is clear, we think, that the stipulation for conventional interest in all contracts carrying such interest, regardless of the rate stipulated, must be in writing in order that same may be admitted in evidence. We have quoted from these authorities rather at length for the reason, as previously stated, that the question of admissibility of evidence by parol to prove stipulation of conventional interest at a rate less than the legal rate of 5 per cent, so far as we have been able to learn, has never been passed upon by the courts of this state.

Upon the other questions raised in this case, the conclusions reached thereon by the district judge were also correct. However, since we conclude that the exception of no cause of action was well taken, and, although overruled, objections were timely made to the introduction of testimony, we do not deem it necessary to discuss the other issues raised on the trial of the case, further than what we have already stated at the outset. The district judge finally and correctly concluded that the exception was good, as shown by his written opinion.

Por the foregoing reasons, the exception of no cause or right of action is sustained, and the judgment appealed from is affirmed on both the law and the facts.


text:
    No. 4185
    Second Circuit (Second Division)
    SILVIE v. INTERNATIONAL ORDER OF TWELVE OF THE KNIGHTS AND DAUGHTERS OF TABOR
    (March 16, 1932. Opinion and Decree.)

      Bryan E. Bush, of Shreveport, attorney for plaintiff, appellee.
    Charles M. Roberson, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff was the beneficiary named in an endowment insurance, policy issued March 30, 1925, by defendant, upon the life of Donny M. Conley, who died February 8, 1931. Upon the insurer’s refusal to settle under the policy, the beneficiary filed suit. There was judgment for plaintiff as prayed for in the sum of $300, together with 6 per cent per annum interest from February 8, 1931, until paid, and defendant appealed.

Counsel for defendant, in brief filed and in oral argument before this court, states that neither defendant nor he was present at the trial of the case in the lower court, for the reason (quoting brief) • “that counsel of appellant was out of the City in the trial of other cases and did not think that this one was set down for trial.” Counsel contends, however, that the evidence adduced upon the trial was not sufficient to warrant a judgment for plaintiff, but, in the alternative, in the event this court should conclude that it is sufficient, then counsel asks that the case be remanded and ordered reopened, and defendant given the opportunity to submit certain evidence which it has in its possession that will refute the evidence given by plaintiff, upon "which the judgment was based.

The record in the case shows plaintiff filed the suit April 24, 1931, and on the 30th of April, 1931, service of citation and copy of petition was made upon defendant by handing same to David Hodge, its chief grand secretary, in his office in the city of Shreveport. Defendant appeared through its attorney and filed an exception of no cause of action on May 15th following, also filed answer of general denial on that same day. The court minutes show the exception was submitted to the court and by it overruled on the 25th of May, and on the 12th of June following is. shown the following minute entry:

“Regularly taken up for trial. Defendant failing to be represented, either by its officers or by counsel, evidence was adduced, closed, and case submitted. There is judgment fox’ Plaintiff as prayed for.” (See decree.)

On the following day the judgment was read, signed, and filed, the preamble of which reads as. follows:

“This cause having come on regularly for trial on this the 12th day of June, 1931, the defendant failing to appear in person or through counsel, the plaintiff offering due proof of her demands, the Court considering the law and evidence to be in favor thereof, for the reasons orally assigned:
“It is Ordered, Adjudged and Decreed,” etc.

No application or motion for a new trial or rehearing was made, but on June 16th, following, defendant, by formal written application, asked for and was granted orders of appeal.

The testimony upon the trial was not reduced to writing. Under Code Prac., art. 601, testimony taken during the trial of a case need not be reduced to writing unless at the request of one of the parties. Rosenthal v. Rosenthal, 117 La. 791, 42 So. 270.

Article 463 of the Code of Practice, as amended by Act No. 53 of 1928, provides:

“As soon as^ the answer has been filed in a suit, the clerk shall set down the cause on the docket of the court, in order that it be called in its turn, and a day fixed for its trial in the manner prescribed by special laws, and the rules of the respective courts. When requested in writing, filed in the record or by registered mail, the clerk shall give notice, in writing, deposited in the post-office properly stamped and addressed, to any party or attorney of record, ten days before the date fixed for trial, of the date fixed for the trial of the cause.”

We do not know what rules the trial court in this instance has adopted for fixing and trying cases. Appellant has not pointed out wherein the court has failed to observe its rules in proceeding as it did. In the absence of such showing, it will be presumed that the case was proceeded with regularly in accordance with its rules. The minutes show that the case was regularly taken up for trial, and the judgment recites that same came on regularly for trial.

“Act 196 of 1912 presents the only peremptory cause known to our law for the continuance of a trial of a case because of absence of counsel.” Succession of Muller, 1 La. App. 402.

The act named above is one amending section 126 of the Revised Statutes which provides that, whenever an attorney at law (including any member of a law firm) shall be a member of the Legislature, his absence from court during its session shall constitute peremptory cause for the continuance on the part of his client of any case wherein such attorney is employed as lea.ding counsel.

The matter of continuance of a case because of the absence of an attorney or his client (other than as px-ovided in Act No. 196 of 1912) is within the discretion of the court, and the court’s actions will not be interfered with unless it be shown that complainant has, by no fault of his own, been deprived of a fair opportunity to have his case properly presented and tried.

In the Muller Succession case, supra, there was a motion for new trial, upon the ground of serious illness and death of counsel’s father, which caused counsel’s absence from the original trial. The motion was denied and an appeal prosecuted. The appellate court remanded the case, stating as reasons:

“After careful examination and research, we find in the following cases a judicial inference that in ¡the absence of counsel, because of physical disability or simUTar reasons, the trial court would not be justified in denying a continuance when such conditions are presented and when timely application for such relief is submitted to the court.”

But the court cited approvingly Johnson v. Dean, 48 La. Ann. 100, 18 So. 902, wherein the Supreme Court refused to set aside the judgment appealed, in the following language:

“No legal showing was made for a continuance, and we cannot disturb the judgment. No statement was made that the counsel were absent because of physical disability.”

Also cited Meyer v. Pritchett, 8 Orleans App. 51, wherein similar relief was refused upon the grounds stated in the syllabus of the opinion as follows:

“Absence of counsel at the trial of the. case, not satisfactorily accounted for nor seasonably brought to the attention of the lower court is insufficient ground for remanding the case for a new trial, particularly where it appears upon the face of the papers that the defenses set up in the answer could not on technical grounds be proved.”

In the present case no application was made for a new trial in the lower court, nor has any application been made before this court to have the case remanded. Certainly under these circumstances it cannot be seriously contended by counsel that the cause should be remanded. Counsel at first asks, in his brief, that the court decide the case. This position taken by him is virtually equivalent to a waiver of prejudicial errors below. Schlater v. Wilbert & Sons, 41 La. Ann. 406, 6 So. 127.

Defendant filed exception of no cause of action in limine which was overruled by the court. The exception, not being urged on appeal, has presumably been abandoned. Defendant also pleaded, prematurity with and as part of its answer. The plea, which is dilatory in nature, must be pleaded in limine and cannot be pleaded in answer. Code Prac., art. 333. The plea is therefore overruled.

The testimony of the witnesses sworn on the trial in the lower court, if any actually testified, was not reduced to writing. There is no note of evidence, statement of facts, bill of exceptions, nor assignment of errors, in the record. The only evidence in the record consists of the policy sued on and the insured’s “Financial Book,” together with a letter addressed by defendant’s counsel to plaintiff’s counsel, written prior to filing of the suit, in answer to a demand for settlement under the policy.

The policy shows to have been issued by defendant at its office in Monroe, La., March 30, 1925, upon the life of Donnie M. Conley, who is designated as a member of defendant’s Lennie Arvesta Tabernacle No. 20, located in the city of Shreveport, Caddo parish. Plaintiff is the designated beneficiary in the policy. Under the terms of the policy, the sum to be paid to the beneficiary in case of death of insured after 36 months from date of policy is' $300. It is further stipulated that:

“Where' the beneficiary is entitled to be paid Three Hundred ($300.00) Dollars that sum shall be paid in three installments, one for * * * $100.00 * * * in * * * 90 days, another of ($100.00) * * * at * * * 6 months, and a third of * * * ($100.00) * * * nine months after satisfactory proof of death and compliance by the assured with all the conditions herein set forth. * * *”

One of the conditions in the policy as a requisite entitling the beneficiary to be paid is that the insured “is and has been for a period of four (4) consecutive months immediately preceding her death and at the time of her death in good standing in ■the Temple or Tabernacle and in the Endowment Department and that the records of the Endowment Secretary attest the same. * * *”

The policy does not set out the amount of premiums or dues the insured shall pay nor the dates when to be due. It refers to certain rules, edicts, regulations, conditions, and by-laws of the order by which the insured shall be governed, and it is presumed these stipulate with reference to these matters.

Defendant in answer enters general denial of liability under the policy, and specially avers that it operates with ritual and lodge form, is governed by a constitution and by-laws, is a fraternal insurance organization; that each member is required to pay an endowment fee of 50 cents per month, except for the months of January, April, July, and September, for which he or she shall pay 75 cents, same to be paid on or before the 12th of each month, and that failure to do so will deprive the member’s beneficiary of the proceeds of the policy; that “on December 12th, 1931, she failed to pay her monthly dues, and on January 12th, 1931, she likewise failed to pay same, and for two months she was delinquent, and under the by-laws, rules and regulations she was suspended.” It is averred that the failure in this respect “automatically or ipso facto” suspended the insured from membership.

Defendant further points out in answer the provision of the policy which provides payment of the $300, in event of liability, in three payments of $100 each in three, six, and nine months after proof of death, and pleads prematurity for this reason.

We do not have before us the constitution and by-laws of defendant organization.

The “Financial Book” of the insured, filed in evidence by plaintiff, shows payments to have been made regularly from month to month during the years from 1925 down to and including February, 1931, with very few exceptions. Payments of 50 cents made under column for endowment are shown for the months of December, 1930, and January, 1931, the two months for which the answer avers no payments were made. For February, 1931, it is shown that 75 cents was paid, 25 cents of which is set out in column indicated “Tax” and 50 cents entered in column headed “End.,” which presumably indicates endowment. The initials “N. B.” are written in column to the right of each of these entries of payments and apparently in the same handwriting. At the heading of this column is printed the word “Secret’y,” hence we infer that the payments were made to the secretary of the local tabernacle to which the insured belongs. It is well settled that payment to an officer of such local lodge is equivalent to payment to the parent order. Emanuel v. General Grand Order, etc., 16 La. App. 186, 133 So. 506.

The documentary evidence in the record is strongly indicative that the insured had kept her dues paid up and was therefore a member in good standing in the order at her death. At any rate, the trial judge who heard all the testimony, including the oral testimony of witnesses, not reduced to writing, concluded such to be the casp. In the absence of oral testimony not reduced to writing, or of a statement of facts placed in the record, the presumption is that the judge acted on proper and sufficient evidence in rendering judgment. Rosenthal v. Rosenthal, 117 La. 791, 42 So. 270; Nugent v. Stark and Husband, 34 La. Ann. 631.

The policy, which was filed in evidence by plaintiff, provided that, if the sum awarded amounts to $300, same shall be paid, $100 ninety days after proof of death, $100 six months, and $100 nine months after such proof. The allegation is, and it is to be presumed the court found from the evidence, that proof of death was made fully thirty days prior to the filing of the suit, which was on April 24, 1931. The judgment, therefore, instead of being made payable in a lump sum, should have been payable in accordance with said terms of the policy. However, the full period for payments under the policy has now elapsed, and the only effect this can have is in the interest charges on the amount of the judgment. The judgment calls for interest at 6 per cent. It should have been for only the judicial rate of 5 per cent.

For the reasons assigned, therefore, the judgment appealed from is amended so as to provide that the sum of $300 awarded shall bear interest at the rate of 5 per cent per annum on $100 of said amount from June 24, 1931, until paid, on $100 thereof from September 24, 1931, until paid, and on $100 thereof from December 24, 1931, until paid; and that, as thus amended, the judgment is affirmed. It is further Ordered and decreed that plaintiff pay costs of appeal.


author: BOATNER, Judge

text:
    No. 13,622
    Orleans
    LE BLANC ET AL. v. CRISTINA
    (March 7, 1932. Opinion and Decree.)

      Max M. Schaumburger, of New Orleans, attorney for plaintiffs, appellees.
    F. A. Middleton, of New Orleans, attorney for defendant, appellant.
   BOATNER, Judge

ad hoc. The Kenner branch of the Jefferson Trust & Savings Bank made a loan to one Fabiana on his note, secured by the indorsement of Cristina, the defendant here. The bank took no other security. Cristina, for his own security, required Fabiana to give him a note for the same amount, secured by chattel mortgage on the contents of an automobile repair shop and garage. Before the maturity of the notes Fabiana absconded; whereupon Cristina sued out executory process on the chattel mortgage note, accompanied by attachment, in the name of one Ronaldson. Ronaldson was manager of the Kenner Branch of the bank. On allegation that the things seized would deteriorate, and that the costs of keeping them under seizure would be heavy, they were sold pendente lite. Cristina bid them in — he says, for the bank — but he made no announcement to that effect at the time to the deputy sheriff who conducted the sale. The proces verbal of the sale is not produced. Later he arranged a sale to the plaintiffs, LeBlanc and the two Stew-arts, of what he had bought, and helped them finance their purchase by a loan at the same bank. The price was. $1,100, which was enough to pay off the Fabiana note, indorsed by Cristina, and that was surrendered by the bank to Cristina. Cristina testifies in the suit now under consideration that throughout he was acting for the bank; but, as indorser of Fabiana’s note, he obviously had an interest of his own to serve, and the testimony of Stanley Stewart and Le Blanc is that in making their purchase they dealt with him personally.

Some months afterward the Interstate Electric Company, Limited, brought a suit against Le Blanc and the two Stewarts, in which it alleged that they were in possession of goods and garage equipment sold by the electric company to Fabiana, on which a balance of the price was due; and, claiming the vendor’s privilege, it obtained the sequestration of the property, and prayed for personal judgment against Le Blanc and the Stewarts for the balance due by Fabiana, with recognition of the privilege.

The property sequestered in the suit of the electric company, of the value of $456.-04, was part of that which Le Blanc and his associates had bought from Cristina.

When Le Blanc was served, he went— not to the bank, it should be noted — but to Cristina, and asked him to handle the case. Cristina accepted employment and appeared as attorney for Le Blanc and the Stewarts to defend the suit. He made no demand on their behalf against the bank by call in warranty, or otherwise, and did not advise his clients that he might himself be obligated to them as warrantor.

The result was a personal judgment against Le Blanc and the Stewarts, in solido, with recognition of vendor’s privilege, in the sum of $435.04. A new trial having been allowed and it appearing that, by consent of counsel, a machine included in the sequestration had been sold for $100, and the price paid to the electric company, the money judgment was reduced by ■that amount. After judgment it was agreed by counsel that the remainder of what had been seized should be taken over by the electric company at a valuation of $84.42. These agreements were made by Cristina without the authority or knowledge of his clients. The balance due on the judgment, $250.58, with interest, $52.56, and costs, $143.50, making a total of $446.64, was paid by them.

Le Blanc and the Stewarts now sue Cristina for their damages, consisting of the value of the goods they lost as the result of the judgment in the suit of the electric company, said to be $435, and the amount they paid on the judgment, $446.64, making a total of $881.64 (incorrectly stated in the petition to be $881.68).

There was judgment in the court below for the plaintiffs, as prayed for, and the defendant appeals.

' The law requires of a lawyer, in his dealings with his client, uberrimam fidem. When Le Blanc retained Cristina to defend the suit of the Interstate Electric Company, Cristina should have made a full disclosure of his own interest. His obvious duty required him to call in warranty his client’s vendor. As he contends now, the bank was vendor; but, if the bank had been condemned, it would in its turn have had its recourse against him on his indorsement. If the bank was in truth the owner, he did not disclose to the plaintiffs that, in selling to them, he was acting as agent. Whether it was he or the bank who was vendor, in either case he had an interest adverse to that of the clients whom he undertook to defend. He made no call in warranty. Without the special circumstances of this case his failure to do so would have been inexcusable negligence; on the facts as they were, it amounted to disloyalty.

The defendant’s counsel thinks the plaintiffs must decide whether to demand relief because of the defendant’s negligence or his disloyalty, or because he was their vendor and warrantor. It is true one may not sue on several causes of action which exclude each other. But it is the business of courts, after considering all the proved facts, and within the limits of the prayer, to give the relief which seems appropriate. The defendant did not except on the ground of misjoinder of causes of action and did not object to any evidence on grounds based on the pleadings. All the facts proved must, therefore, be given their proper effect.

Since we think the facts are not only that Cristina was the plaintiffs’ vendor and so bound to them as warrantor, but also that, as their lawyer, he subjected them to loss by his negligence, or disloyalty, and since, in either case, the plaintiffs’ loss and damage are the same — being the value of the goods which he sold them and which they lost, with the expenses of the suit of the electric company and the judgment which the electric company recovered against them — it seems useless to determine which of the facts contributes most to the result.

Defendant’s counsel argues that the judgment of the electric company against the plaintiffs was wrong, for he says there was no personal liability of the plaintiffs to the electric company, and that the privilege of the latter was lost by the judicial sale and again by the sale to the plaintiffs. It may well be that defenses of that sort should have prevailed in that case, but, after a judgment is final, it is useless to contend that it is based on a wrong opinion of the law. The force of res judicata is such that it makes black white and it makes the judgment right, however wrong we might think it, if it were open to review.

In our appreciation of the evidence and, determination of conflicts in testimony, where they occur, we give weight to the fact that the district judge, who should know all the parties and witnesses, particularly the defendant, who is an attorney and officer of his court, must have taken the same view of the facts which we do.

After the defendant Cristina had filed his answer, in which he set up that he had acted for the bank in making the sale to plaintiffs, the latter filed an amended petition, making the bank party defendant, in which they alleged, not that the bank was their vendor, but only that the defendant Cristina had alleged that to be the fact. The bank filed an exception of no cause of action, which was maintained in the court .below, we think, properly.

The judgment appealed from is affirmed, defendant Cristina to pay all costs.

HIGGINS, J„ recused.