author: CLAIBORNE, J.

text:
    No. 8784.
    Orleans Appeal.
    JOSEPH WILLIAMS, Appellant, v. EUGENE A. GARCIA.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 4; Municipalities — Par. 225.
    When a chauffeur drives a car on the left and wrong side of a street, and a car coming from an opposite direction swerves to the left in order to avoid a collision, and thus brings about a collision, the fault will be attributable to the chauffeur.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a damage suit resulting from an automobile collision. Judgment dismissed plaintiff’s suit and defendant’s reconventional demand. Plaintiff appealed.
    Judgment rejecting plaintiff’s demand 'affirmed and rejecting defendant’s reconventional demand reversed.
    Sol. Weiss, J. D. Dresner, attorneys for plaintiff and appellant.
    Jos. H. Brewer, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit resulting from an automobile collision.

Plaintiff alleges that in May, 1920, at 11:30 p. m. he was driving his auto uptown upon the wood side of St. Charles Avenue, and upon the right hand side thereof near the sidewalk curbing; that at that time the River side of the Avenue was in course of repairs and closed to traffic, so that there was a two-way traffic, uptown and downtown, upon the wood side of the Avenue upon which, the plaintiff was driving; that just after plaintiff had passed beyond Felicity Street an automobile was coming downtown towards plaintiff upon the same side of the Avenue and same side. of the street operated by the'defendant; that said automobile negligently ran into plaintiff’s automobile although it was about four feet from the sidewalk and although there was ample room between plaintiff’s auto and the neutral ground for at least two automobiles to pass; that plaintiff’s automobile came to a sudden stop which threw him out of his seat and caused him to strike his chest against the. front frame of the automobile and rendered him unconscious; that he was taken to the Charity Hospital, thence to his home where he was in bed for two weeks and away from his work seven weeks; that he has suffered the following damages:

Suffering --------------- $1,000.00

Damage to auto...................................... 75.00 •

Dr. Williams, 20 visits_______________ 60.00

Medicines _____________ 30.65

Time lost from work as cotton truck driver 42 days at $5.90________ 247.08

$1,412.73

Defendant denied any indebtedness to plaintiff, but averred on the' contrary that plaintiff was indebted unto him in the sum of $805.95. He denied that plaintiff was driving his automobile on the right hand side near the sidewalk curb, but averred that on the contrary the plaintiff was driving at an excessive rate of speed up St. Charles Avenue on the wood side of the neutral ground, and that instead of driving on the right hand side near the sidewalk curbing, the plaintiff was driving along the curbing of the neutral ground, keeping to his left in violation of law and custom, and directly in the face of traffic coming down the Avenue; that he, the defendant, was driving his automobile down St. Charles Avenue on the wood side of the Avenue, and along the curbing of the neutral ground of the Avenue nearest the wood; that he observed plaintiff’s automobile driving up the Avenue and hugging the curbing of the neutral ground and running at great speed; that he brought his auto to a very slow speed and blew his horn; that it was Only when plaintiff was about to collide with him that the plaintiff swerved to the right and that in doing so plaintiff’s automobile struck defendant a glancing blow, doing him the following damage:

Repairs to automobile____________________________$115.45

Parts to replace broken parts............. 64.50

Depreciation of defendant’s car due to above damage__________________________________ 500.00

Loss of the use of the car during repairs ..................................................... 125.00

Total______________________________________________________$805.95

The trial judge found that the preponderance of evidence was not with the plaintiff and therefore dismissed his suit. He also stated that he was uncertain as to which driver actually was to blame and for that reason dismissed the reconventional demand.

The plaintiff has appealed.

The defendant has filed an answer to the appeal, praying for judgment on his re-conventional demand. >

Plaintiff testified that he was driving up St. Charles Avenue on the wood side driveway, within two or three feet of the sidewalk, at a reasonable speed of ten or twelve miles; that the defendant was driving down the same Avenue upon the same driveway and also within a few; feet of the sidewalk curbing; that the two automobiles met in a head-on collision. The plaintiff is corroborated in his testimony by two disinterested witnesses, Sam Adams and Willie Wilson, strangers to the plaintiff.

On the other hand the defendant, Garcia, and Rene Commerville, a passenger in defendant’s car at the time of the collision, both swear with emphasis, that defendant was driving, his. car down on the wood side driveway of the avenue because he had been turned away by an officer from the River side, which was undergoing repairs; that he was driving to his right close to the neutral ground; that the plaintiff was driving up town upon the same side of the Street and also close to the neutral ground, and that the plaintiff ran into them at an excessive rate of speed.

It is our duty to reconcile the testimony and to place the blame where it belongs. A careful reading and weighing of the testimony have convinced us that the following are the facts:

The plaintiff, as many others do, was running up the wood side of the Avenue along the neutral ground curbing in violation of the traffic ordinances, and forgetful, or in ignorance, of the fact that the River side of the Avenue had been closed to traffic and that the wood side was serving both the uptown and the downtown traffic, and that a car going uptown hugging the neutral ground was likely to meet another car going downtown also close to the neutral ground. The witness Commerville testifies that when the plaintiff came rushing towards-them and when they saw that if both they and the plaintiff continued in their course that an accident was inevitable, that Garcia swerved to his left towards the center of the street, and just as. .he did that, the plaintiff himself, for the , same reason, swerved to his right; that, plaintiff’s car then struck defendant’s car on the right side near the door, and that both cars were driven towards the sidewalk. This conclusion is supported by the relative position of the cars after the collision.

It is- true that if defendant had not swerved to the left that the collision would not have occurred; but the swerving was brought about by the fault of the plaintiff.

There are many contradictions and inconsistencies in the testimony of the plaintiff and of his two witnesses which weaken their evidence.

With this view of the case the judgment of the trial court rejecting plaintiff’s demand must be affirmed. But the judgment rejecting the demand in reconvention must be reversed.

We are of the opinion that the defendant has proved the damages of $116.45 and of $64.50, but that he has failed to ■ establish the two other items of $500 and of $125.

It is therefore ordered that the judgment appealed from in favor of defendant rejecting plaintiff’s demand be affirmed; and that the judgment in favor of plaintiff rejecting defendant’s reconventional demand be reversed and set aside. And it is now ordered that the plaintiff Joseph Williams be condemned to pay to the defendant Eugene A. Garcia the sum of One Hundred and Eighty and 95/100 Dollars with 5 per cent per annum interest from May 27, 1921, till paid and all costs of suit.

Judgment rejecting plaintiff’s demand affirmed and judgment rejecting defendant’s reconventional demand reversed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 8837.
    Orleans Appeal.
    DR. DAVID HYMAN, Appellant, v. V. VITRANO.
    (March 30, 1925, Opinion and Decree.)
    (April 27, 1925, Rehearing Refused.)
    (May 26, 1925, Decree Supreme Court, Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Physicians—Par. 9.
    Where the father of a married woman engages a physician to treat his daughter, he is liable for the value of the physician’s services notwithstanding the legal responsibility of the daughter’s husband.
    Appeal from the Civil District Court, Parish of Orleans, Hon. Percy Saint, Judge.
    This is a suit by a doctor for professional services.
    Judgment for defendant. Plaintiff appealed.
    Judgment reversed.
    Woodville & Woodville, attorneys for plaintiff and appellant.
    Geo. Montgomery, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit by a doctor for a fee for professional services rendered defendant’s married daughter. The defense consists of a denial of legal responsibility upon the ground that the husband of the daughter is alone responsible for medical services rendered to her in the absence of a special agreement on the part of the father or other person to pay the same.

There was judgment below in defendant’s favor dismissing plaintiff’s demand and plaintiff has appealed.

Did Vitrano, the father, employ Dr. Hyman to treat Mrs. Semprivivo, the daughter, is the question presented.

Dr. Hyman testifies that on or about August 21, 1920, he received a telephone call urging him to come at once to 5901 •Iberville Street; that the message was •given by Mrs. Nelson, wife of Dr. Nelson, who was out of the city and whose practice he (Dr. Hyman) had in charge during his (Dr. Nelson’s) absence; that he went immediately as requested and upon arrival found himself in the home of defendant, and defendant’s daughter, Mrs.. Semprivivo, unconscious with temperature of 105 degrees; that upon examination, Mrs. Seprivivo was found to be in extremis and an operation imperative; that he recommended her immediate removal to the French Hospital, which was done, and a minor operation performed the next day, and, some two weeks later, a major operation was performed which was successful, and that after a long and most disagreeable treatment, his patient was well qn the way to recovery, when another doctor was called in who performed a simple operation which resulted in Mrs. Seprivivo’s complete recovery. Dr. Hyman at first testified that at the time of his first appearance in defendant’s home, defendant was present and assumed entire financial responsibility for his professional services without solicitation on his part. This statement he repeated several times, but on cross-examination he was not positive whether Vitrano was present that day or the next, but he was sure that he saw him either at his home the first day or at the hospital the next day and that when he first met him, Vitrano, with every evidence of distress and parental solicitude, urged him to do everything he could to save his daughter’s life and to spare no expense and send the bill to- him because his son-in-law, the patient’s' husband, was no account and at that time in the penitentiary and' that if he should return he (Vitrano) would eject him violently from his house. Dr. Hyman testifies that Vitrano frequently repeated this statement concerning his employment and particularly upon one occasion when Vitrano called upon him at his home and at., that time in the hearing of a Mrs. Corbett, a trained nurse living in the house with Dr. Hyman. Mrs. Corbett corroborates the plaintiff in this part of his testimony.

Defendant, testifying, denies ever employing plaintiff or agreeing to pay his bill. He says that he told him to go slow because his daughter only had $200.00, which was to her credit with a local Homestead, and that he exhibited the pass book to the doctor in support of that statement and added that when the $200.00 was gone, there was no more. In other words, give her $200.00 worth of attention. Defendant admits paying plaintiff. $25.00 for his assistant and also admits paying all hospital charges, which he says was paid out of the $200.00. An offer was made of checks and bills covering these items by defendant’s counsel to be produced and later filed, but they are not in evidence.

Other members of defendant’s family testified, including the patient herself and they corroborate defendant as far as they can, but differ as to the presence of Sempriviv.o, the patient’s husband, in the defendant’s home and the date of his' return from the penitentiary and reconciliation with his wife and her family, for there had been an estrangement.

Semprivivo, the husband, did not testify and Dr. Hyman says he saw him only once, when he called at his office and denied that he was responsible for his wife’s desperate condition, as had been asserted by members of her family.

We are convinced that defendant did employ plaintiff and should pay for his services, which, as the record indicates ad nauseam, were of the most trying and disgusting character. Every probability supports this view. The desperate character of the daughter’s illness and the natural parental solicitude for her recovery at any cost or sacrifice; the irresponsibility of the husband and his failure to testify; the failure to produce the vouchers covering payment of hospital expenses, nurse, etc. We cannot credit the defendant’s statement that he told the doctor to go no further in his effort .to save his daughter than $200.00 would carry bim, because she had no additional funds. The statement was made in argument that such conduct was consistent with the Italian characteristics. We do not think so and do not believe that the natural instincts are more firmly established in other nationalities.

Dr. Hyman sues for $1,000.00. We can only allow him $500.00, whatever may be the actual value of his services. He fixed his fee at $500.00 at the conclusion of his services and sent Vitrano a bill for that amount and, subsequently, and we are inclined to think, largely due to the employment of another doctor to finish his work, increased his hill to $1,000.00.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment for 'plaintiff, Dr. David Hyman, and against V. Vitrano, defendant, in the full sum of Five Hundred ($500.00) Dollars, with legal interest from judicial demand and costs of both courts.


text:
    No. 8843.
    Orleans Appeal.
    FEDERAL SIGN SYSTEM v. A. J. GUMINA, Appellant.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Obligations—Par. 149.
    When one party offers to perform his contract and the other refuses to permit him to perform it, the offer will be treated as a performance and render a putting in default unnecessary.

      2.- Louisiana Digest — Evidence—Par. 221
    When a written contract provides for the erection of signs at 4319 Dryades Street, parol testimony is not admissible to prove that the signs were to be erected at the corner of Dryades.
    (Civil Code, Art. 2276. Editor’s note.)
    Appeal from Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a damage suit for violation of contract.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed and case remanded.
    Sol. Weiss, Weiner & Netter, attorneys for plaintiff and appellee.
    Carbajal & Gaudin, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a damage suit for violation of contract.

Plaintiff alleges that it made a written contract with the defendant to put up certain electrical signs at the premises of the lessee, No. 4319 Dryades Street; that it complied with said contract by having said signs manufactured, and tendered them to the defendant who refused to permit plaintiff to put them up; that defendant bound itself to pay $16 for each unexpired month of the contract, amounting at the time of suit to $576.00.

The plaintiff relies upon the following clause of the contract:

“Upon a breach of this agreement, by the lessee, the.Company may remove the sign, wiring and all other property, and cut off the supply of electricity, in which event the lessee will pay the Company a sum equivalent to $16 for each unexpired month of the term of the contract, which sum is agreed to be the actual loss suffered by the Company by reason of such breach.”

The defendant denied all the allegations of the petition, and averred “that he had entered into an agreement with the defendant (plaintiff) company, whereby the plaintiff agreed to erect a certain sign on a telephone or electric post located at the corner of Napoleon and Dryades Streets, and the plaintiff company agreed to have said sign placed on a post at said corner”; that the plaintiff was unable to obtain permission of the Cumberland Telephone and Telegraph Co., or of the N. O. R. and Lt. Co. of this city to allow placing of the sign at the corner designated and has therefore never complied with the terms of his (its) said agreement, etc.”

There was judgment for plaintiff as prayed for, and defendant has appealed.

In argument and in his brief the defendant sets up two defenses:

1st. The plaintiff did not put the defendant in default. The defendant refused to permit the plaintiff to put up the signs at No. 4319. Therefore no default was necessary. 2 L. D. 478. Lozes vs. Segura Sugar Co., 52 La. Ann. 1844, 28 South. 249; Romeo vs. Newman, 50 La. Ann. 89, 23 South. 493; Reinach vs. Jung, 122 La. 612, 48 South. 121.

The plaintiff had actually constructed the sign and had deposited it in defendant’s premises awaiting the time and place to put it in position.

2nd. That the contract was not signed by plaintiff's manager, as required by the contract. There is in the record a letter dated May 31, 1920, signed by the “Secretary to the Manager”, addressed to the defendant informing him that the contract had been properly approved. Moreover Burrell, local manager for the plaintiff, identifies his signature to the contract.

In the course of the trial the defendant attempted to prove that the contract he made with the representative of the plaintiff was for a sign at the corner of Napoleon Avenue and Dryades Street, and not at 4319 Dryades Street. The plaintiff objected to the testimony on the ground that such testimony was not admissible as it varied and contradicted the written o contract. The Court admitted the testimony. The defendant admitted his signature ■ to the contract sued on. There was no pretense that the contract had been altered by a subsequent agreement; but the contention of the defendant was that he had made a contemporaneous side agreement by which the sign was to be put up at the corner of Dryades and Napoleon Avenue. This testimony clearly contradicted the written contract and was not admissible. C. C. 2276.

Nor is the plaintiff entitled to recover' $16 for each unexpired month of the contract as provided in the clause of the contract quoted above, for the reason that the contract had not been consummated by the putting up of the signs and wires. But the ■ defendant is amenable to another penalty provided by another clause reading as follows:

“Upon refusal of lessee to allow said sign to be hung, the Company shall not be held responsible for failure to hang said sign, and the lessee agrees to indemnify the Company for any expense incurred by it previous to receiving written notice from lessee that such permits cannot be obtained.”

The defendant admits its liability for the cost of the sign and for the expenses incidental thereto. But of this there is no evidence in the record. We shall remand the case for the purpose of ascertaining that amount.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered ' that this case be remanded for the purpose of ascertaining the cost' of the sign and the expenses incidental to its construction and delivery to defendant’s premises; the cost of appeal to be paid by the plaintiff and appellee and the costs of the District Court to await the final judgment 'of the case.


text:
    No. 8847.
    Orleans Appeal.
    ARMIN E. MILL, Appellant, v. JOHN A. LEWIS.
    (March 30, 1925, Opinion and Decree.)
    (April 27, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    Where the judgment of the trial court upou a question of fact appears clearly erroneous, it will be reversed.
    Appeal from Civil District Court, Parish of Orleans, Hon. Fred. D. King, Judge presiding.
    This is a suit to recover the cost of repairs on an automobile. There is also a reconventional demand.
    There was judgment for defendant and plaintiff has appealed.
    Judgment reversed.
    Prowell & Prowell, R. T. McBride, attorneys for plaintiff and appellant.
    F. C. Querins, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for $340.55, the alleged value of certain repairs made by plaintiff to a Franklin automobile belonging to defendant.

Defendant denies liability in any sum, alleging a verbal contract with defendant to complete the work for $200.00 and pleads payment to the extent of $157.95. For further defense, defendant charges that the work done by plaintiff was poorly executed and unduly delayed; that he was promised his car within ten days and because of plaintiff’s failure to complete the repairs within that time, he was compelled to hire other automobiles at an expense of $210.00 and he reconvenes for $75.00.

The trial judge awarded plaintiff a judgment for $11.25 and gave defendant a judgment for $60.40 on his reconventional demand. Plaintiff has appealed.

Plaintiff is engaged in the business of automobile repairing and he has testified that he was in the habit of repairing defendant’s Franklin car; On May 15, 1921, defendant’s car was brought into plaintiff’s shop for extensive repairs due to an accident. Plaintiff claims that he informed defendant that if an insurance company was to pay for the repairs he would not undertake the job because of the difficulty in getting his money and that thereupon defendant stated that though he carried insurance, he, defendant, would pay plaintiff and collect from the insurance company, and with that understanding, plaintiff undertook the work. Plaintiff further testifies that defendant requested him to make other repairs to his car, the need for which was not occasioned by the accident and that he was asked to keep a separate account of these repairs as they were not to be paid for by the insurance company.

Defendant having pleaded a contract, carries the burden of proving it. This burden he has not sustained. No one other than himself testifies to this effect' and plaintiff denies it. The same may be said of the plea of payment and of the agreement to repair the car in ten days. Moreover, a witness, Mr. Charles A. Theil, whose occupation is given as President of the United Warehouse Company, and whom it appears has no connection whatever with plaintiff, except as a customer whose automobile trucks are repaired by plaintiff, testified that he was present when the question of repairing defendant’s car was discussed by plaintiff and defendant and that he heard plaintiff tell defendant he did not want the job if an insurance company was to pay for it and defendant’s assurance given plaintiff that he, defendant, would pay plaintiff when an adjustment was had with the insurance company. This witness also heard defendant request plaintiff to make out two bills for repairs. He did not hear anything about an agreement to do the work for $200.00 nor an undertaking to complete it within ten days.

As to the character of the work done by plaintiff, there is some testimony that the engine of defendant’s car overheated and leaked oil after the completion of the repairs, but the mechanic who’ made the repairs as an employee .of plaintiff seems to have adjusted these conditions without difficulty and so far as the record shows without expense to defendant. The itemized bill of plaintiff is supported by two mechanics, employed by him, who did the work and it otherwise appears to us as reasonable.

We conclude, therefore, that the judgment of the trial court is erroneous.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment for plaintiff and against defendant in the sum of $340.55, with ■ legal interest thereon from judicial demand and all costs.

It is further ordered that defendant’s demand in reconvention be dismissed at his cost.


text:
    No. 8863.
    Orleans Appeal.
    HIBERNIA BANK AND TRUST CO. v. J. I. HEINEMAN CO., ET AL., Appellants.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mandate—Par. 57.
    Authority to compromise or remit a claim must be special.
    (Clvid Code, Art. 2997. Editor’s note.)
    2. Louisiana Digest — Transaction and Compromise — Par. 3.
    A writing is an essential form for the validity of a compromise.
    (Civil Code, Art. 3071. Editor's note.)
    Appeal from Civil District Court, Hon. Wynne Rogers, Judge.

      This is a suit upon a promissory note of $500. There was judgment for plaintiff and the defendants have appealed.
    Judgment affirmed.
    McCloskey & Benedict, Michal M. Irwin, attorneys for plaintiff and appellee.
    Jos. Rosenberg, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note of $500.

The defense is that the plaintiffs agreed to accept fifty cents on the dollar as a “compromise” and in full settlement of their claim at a meeting of the creditors of defendants held April 15, 1922.

There was judgment for plaintiff and the defendants have appealed.

The defendants claim that at the several meetings of their creditors and notably at the one held April 15, 1922, plaintiff was represented by G. L. Woolley, its credit manager, and that he consented to the compromise.

A member of the defendant company and M. G. Adams, and V. L. Bernard testify to that effect on Behalf of defendants. But their testimony is not categorical nor positive. Woolley swears that he had stated the Bank “would only accept provided everybody accepted”. The evidence is that nine creditors had not. accepted.

But whatever Woolley did or said, there are two reasons why he did not bind the bank:

1st. He swears that he was not authorized by the Bank to make any compromise or remission of its claim. C. C. 2997.

2nd. The compromise, as defendants call it, was not reduced to writing. C. C. 3071, Orr & Lindsley vs. Hamilton, 36 La. Ann. 790; Antoine vs. Smith, 40 La. Ann. 569, 4 South. 321.

The judgment is correct and it is therefore affirmed.


author: BELL, J.

text:
    No. 8768.
    Orleans Appeal.
    SCHWARTZ & FERRY v. L. L. LAMULLE.
    (March 30, 1925, Opinion and Decree.)
    (April 27, 1925, Rehearing Refused.)
    (June 24, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 122, 129.
    Where defendant is in default by refusing to accept a commodity sold under contracts of sale, plaintiff is not compelled to sell at defendant’s risk immediately. Mere delay or indulgence in such' a case, incurred in attempts by the plaintiff to secure a settlement, cannot avail the defendant as a means to avoid liability.
    2. Louisiana Digest — ‘Sales—Far. 121, 122.
    The fact that a seller who is entitled to have the buyer accept the delivery of a commodity under a contract of sale, makes various concessions in order to facilitate the buyer, affords no reason for releasing the buyer from his obligation to receive the goods, where nothing has been done to prejudice his rights.
    3. Louisiana Digest — Damages—Par. 71.
    Where defendant has been placed in default and has failed to plead or prove that the market price ultimately received was to his prejudice or that a better price could have been obtained at the time of breach or later, the damages claimed as a difference between the contract price and the market price of re-sale will be allowed.
    Appeal from Civil District Court for the Parish of Orleans, Div. “B”, Hon. Fred D. King, Judgé.
    This is a suit to recover damages for a breach of contracts.
    There- was judgment for defendant and plaintiff appealed.
    Judgment reversed.

      Wm. Ellis, Eugene Thorpe, Thorpe & Thorpe, attorneys for plaintiff and appellant.
    Loys Charbonnet, attorney for defendant and appellee.
   BELL, J.

Plaintiff, a commercial partnership, prosecutes this appeal from a judgment rejecting its demand for $1,173.60, claimed as damages alleged to have been sustained by reason of defendant’s failure to send for or to receive from the plaintiff firm various lots or shipments of flour, sold by it to defendant under four separate contracts. Judgment was originally taken by default against the defendant for the amount claimed, but after motion for a new trial, duly granted, defendant joined the issue and judgment was finally rendered in favor of defendant dismissing plaintiff’s claim.

The four contracts are in writing, signed by the plaintiff’s authorized salesman and by the defendant, and these contracts are annexed to and made part of the petition. Considering them in the order of their execution, the issues established by the pleadings and the facts regarding the respective contracts, appear to be as follows:

CONTRACT NUMBER ONE.

Plaintiff alleged that it sold defendant on July 12, 1920, 100 barrels of flour, known as “Polar Bear” flour, at $13.50 per barrel, to be taken by defendant within forty days; that the said agreement was in writing, and that defendant, at various times during the months of September, October and November, 1920, took and received from plaintiff out of that particular contract, 64 barrels, leaving a balance of 36 barrels not taken by the defendant.

Defendant admitted purchasing the flour at the above price and in the amount stipulated; that lie was to take it within forty days from the date of the order, and that he received 64 barrels on account. He denied, however, that he refused to take the balance of 36 barrels, and averred on the contrary that plaintiff failed to deliver the balance of 36 barrels, notwithstanding demand therefor made by defendant within the life of the order. Defendant for that reason denied liability under the Polar Bear order.

The evidence shows conclusively that defendant at no time made demand upon plaintiff for the remaining 36 barrels of Polar Bear flour involved in this contract. Defendant’s own testimony is to the effect that he always got portions of this brand whenever he demanded delivery from the plaintiff. When confronted on cross-examination with the contrary averment found in his pleadings to the effect that he had demanded delivery without avail, he testified as follows:

“Q. You stated in your answer, sworn to in this case, that Schwartz & Ferry were requested by you during the life of the Polar Bear, contract to make delivery of 36 barrels thereunder, is that true or not?
A. Did I ask to deliver the flour?
Q. Yes, Mr. Lamulle.
A. Yes, sir.
Q. You asked Schwartz & Ferry during the life of the Polar Bear contract to make delivery of 36 barrels?
A. No, I said Schwartz & Ferry never failed .to deliver Polar Bear when I ordered.”

It is plain from this evidence that plaintiff was never in default as to this contract and that it was able and willing to deliver at all times during the life of this contract, which expired as to time limit for delivery on August 22, 1920. It is contended by counsel for defendant that the forty-day limitation should not be held to have expired until October 18, 1920, or forty days from September 8, 1920, the date the defendant began business as a baker. There is no merit to this contention, for defendant has testified “I did not go into business until September 8th. That contract of July was expired when I took it over.” Defendant must, therefore, he held to have taken the contract as he found it. It appears, however, that defendant availed himself of every indulgence granted him by plaintiff, as is shown by the fact that the last lot of Polar Bear flour taken by him under this contract was on November 18, 1920, or eighty-nine days after the forty-day limitation had expired, or indeed one entire month plus forty days after he began business.

Defendant having admitted in his answer that he was obligated to take and receive the entire order within forty days from the date of the contract, and having failed to establish in his special defense that plaintiff was in default in the life of the contract, it follows that defendant’s liability is established and that plaintiff must receive such damages as may be hereinafter awarded.

CONTRACT NUMBER TWO.

Plaintiff alleged that it sold defendant by another written contract on September 20, 1920, fifty barrels of a brand of flour known as “Velmar”, at $13.40 per barrel, to be taken by defendant within a period of thirty to sixty days, and that defendant took six barrels of said Velmar flour on October 13, 1920, leaving a balance of forty-four barrels to be taken by defendant under said contract.

Defendant admitted all the allegations of plaintiff’s petition regarding this contract, but in denying that he was bound to take or pay for the remaining forty-four-barrels, he pleads with striking inconsistency as follows:

“1. That the breach of the contract was by plaintiff and not by defendant. '
2. That the flour was not as represented prior to and immediately before defendant signed the contract, and that it was then and- there understood that if the flour was not as represented, that defendant would not be bound to take same, and that the said contract or order would be cancelled.”

While defendant in this part of his answer fails to show in what manner plaintiff breached the contract for Velmar flour, it is plain from the averments found in an omnibus paragraph of defendant’s pleadings hereinafter noted, that the particular breach referred to in respect to this contract, as well as in respect to the other contracts, was plaintiff’s failure to deliver within the life of the contract. If this be the ground of defense in avoidance of liability for damages as claimed, then it cannot be pleaded nor proven thát the thing or any part of the thing contracted for was contrary to representations. But defendant has not been forced to elect as upon which of these defenses he would stand, and abundance of testimony has been offered and admitted, over timely objections, in an attempt to establish what is claimed to have been promised by the plaintiff’s salesman before and since the signing of the contract.

The written contract is upon the printed form furnished by plaintiff, with the firm’s name printed on the top, and at the bottom of the document, just above the signatures of plaintiff’s salesman and that of defendant, appear the words in bold type “Subject Confirmation”. It is, therefore, conclusive that defendant was charged at the outset with knowledge as to the limited authority of the salesman who took the order for the sale and delivery of this flour. There is nothing in the order or contract which shows that plaintiff or its salesman made any agreement to sell this particular flour on trial or that defendant could return • any portion of the flour or cancel the order after trial, as is alleged in defendant’s answer. Defendant's evidence is to the effect that verbal promises and representations were so made by plaintiff’s salesman. The evidence on this point is most conflicting and we give little or no weight to it, for the reason that the preponderance of evidence in this case convinces us that no authority, expressed or implied, could have been given the salesman to make any such representations on behalf of his principal, and that defendant, from the contract itself, is hound to have known or understood the limit of the salesman’s powers.

Though frequent written demands were made upon the defendant and two personal calls were also made upon him by each member of the plaintiff firm within the life of the contract, whereby defendant was called upon to receive or accept the flour, it does not appear that defendant made any complaint whatever to either member of the firm to the effect that the flour was unsatisfactory. The evidence that such trial was made with unsatisfactory results is of the most uncertain nature, for it is shown by the testimony of defendant’s baker that the Yelmar flour used by defendant during two days, was mixed with other flour in equal proportions. It could not be held on such evidence as this that the Velmar flour rather than the other flour was defective or unsatisfactory. We find from the record before us that plaintiff was always willing and able to deliver the balance of the Velmar flour; that defendant Was put in default within the life of the contract upon his repeated failure to accept or receive the flour, and that defendant’s inconsistent defense that the flour was not as represented by plaintiff’s salesman, has not been established under the burden of proof imposed upon him by law. Damages as hereinafter awarded plaintiff should be allowed under this contract.

CONTRACT NUMBER THREE.

Plaintiff alleged that it sold defendant, by written contract, dated September 30, 1920, 100 barrels of Issue flour, at $12.60 per barrel, and by the same contract had also sold to him 25 barrels of Millers No. 1 flour, at $12.60 per barrel, delivery on both contracts to be made within forty-five days; that defendant took, on September 30, 1920, 5 barrels of Millers No. 1 flour, leaving a balance of 100. barrels on the contract for the Issue flour and a balance of 20 barrels on the contract for the Millers No. 1 flour uncalled for and not taken by defendant.

Defendant admitted the facts as alleged by plaintiff in regard to the orders for the brands of flour above mentioned. Further answering plaintiff’s contention in regard to the orders for the Issue and the Millers No. 1 flour, defendant specially averred that plaintiff and not defendant violated the agreement between them in regard to said orders in that plaintiff failed to deliver the balance of 100 barrels of Issue flour and the 20 barrels of Millers No. 1 flour within the life of the said order, and that, for that reason, defendant is not in any. way liable to plaintiff under the said order.

The evidence shows that shortly after the signing of this contract, defendant called upon plaintiff for delivery of a small portion of the Issue brand, and was told that none was available because of delayed shipments from the mills but that this brand was expected to be received in a few days. No protest was made by defendant against this situation. It is shown beyond peradventure that well within the life of this contract, which would have expired on November 14, 1924, plaintiff was able to deliver this brand as well as Millers No. 1, and that it accordingly, by letters and also by messages sent through its salesman, made frequent demands upon defendant to accept delivery of these brands, as well as the others called for under the four contracts now involved in this suit. Damages under this contract should also, in our opinion, be allowed.

CONTRACT NUMBER FOUR.

Plaintiff alleged that it sold defendant, hy written contract, dated October 4, 1920, 50 barrels of Thunderbolt flour, at $11.75 per barrel, and 50 barrels of I. H. flour, at $12.25 per barrel, to be taken by defendant within 60 days and that defendant failed to take any of said flour.

Defendant admitted the facts as alleged by plaintiff in regard to the order of October 4, 1920. Further answering plaintiff’s contentions in respect to these orders, defendant denied liability to plaintiff for two reasons, first, because the Thunderbolt and I.H. brands were represented by plaintiff as suitable to the business of defendant and as good for the making of bread as any other flour used by defendant in his business, and that, as a matter of fact, said flour was inferior and not suitable for the purpose of making bread; and, second, because said flour was not delivered within the life of the said order.

The same inconsistencies in defendant’s pleadings regarding these orders are to be found in this contract as in Contract Number Two, already noted. It having been conclusively proven by defendant’s own admissions, made on cross-examination, that he had never taken or received any or either of these brands, the contention made in his answer that these brands were inferior or unsuitable falls of its own weight. The letter of November 27, 1920, putting defendant in default as to this contract, was written well within the life of thfs contract, which ran until December 4, 1920. We finally conclude, therefore, that in this, as well as in the other three contracts, liability has arisen for such damages as may be allowed.

The plaintiff, before enumerating in detail the extent of the damages herein claimed, alleged in paragraph 6 of its petition, that it was' ready and billing to deliver the whole of the flour covered by the four contracts above noted, and that though it had called upon defendant both verbally and in writing to furnish shipping instructions for delivery under these icon-tracts, defendant wilfully and without right breached said contracts by failing to furnish instructions or to take the flour, as he was bound to do under the contracts.

Without affirming or denying the above allegations, defendant answered this paragraph of plaintiff’s petition with an omnibus defense to the entire petition, by ayerring that plaintiff failed to deliver ,the whole of the flour called for by the orders during the life of the orders, that is to say, within the time limit fixed by the orders, and that he was not obliged, at the expiration of the period fixed in the orders themselves, to take or to receive deliveries therefor.

Considering the issues raised by the pleadings just noted, this suit has been resolved into questions of law, as follows:

1. Has the defendant, under this law, defaulted upon his contracts?

2. Was the plaintiff obliged to and has it legally placed defendant in default?

3. Has the quantum of damages herein claimed been legally established?

It is plain from the evidence that notwithstanding the fixed dates enumerated in the respective contracts by which deliveries were to be made, on the one hand, by the plaintiff, and to be received, on the other hand, by the defendant, that each of these parties made reciprocal concessions, the one to the other, concerning deliveries. This is shown at the outset by the fact that in the first contract covering the Polar Bear flour, it was not possible for plaintiff to deliver or for defendant to receive the flour within forty days after the date of the contract, to-wit: July 12, 1920. Forty days from this date would have been August 22, 1920, some seventeen days before September 8, 1920, or the date when defendant opened his place of business. It appears, however, that deliveries were made and received under this contract during the months of September, October and November following. It follows, therefore, that both parties are estopped from pleading against each other the failure of either to offer or to receive the flour within the time for delivery. In the absence of any evidence to the contrary, it is both reasonable and proper to conclude that the conduct of the parties in this reciprocal indulgence observed in the first contract, did establish a tacit understanding that strict enforcement as to time of delivery would not obtain in the subsequent contracts. Therefore, until either party, by written notice or otherwise, called upon the other for reasonable observance of the contracts in respect to delivery or acceptance of delivery, it would be inequitable to hold that either had defaulted in this respect.

In the case of Crescent City Mfg. Co. vs. Slatery, 132 La. 917, 61 South. 870, it was held that:

“The fact that a party entitled to the delivery of lumber under a contract makes various concessions in order to facillitate the other party in making such delivery, affords no reason for releasing such other party from his obligation where nothing has been done to prejudice his rights.”

From our close study of the record before us, we are convinced that a preponderance of evidence indicates that the plaintiff was both willing and able at all times to perform its part of the contracts in every one of the orders taken by it, with the one and only temporary exception in respect to the brand of Issue flour, but even in that order, as in all other orders, plaintiff was undoubtedly able and willing to deliver all of the untaken portions of flour upon the expiration date of each contract. Haffner Mfg. o. vs. Lieber Lumber and Shingle Co., 127 La. 357, 53 South. 646.

In the case of the Polar Bear contract, plaintiff was continuously able to deliver the entire order from the date of the contract up to November 18, 1920, the last day that defendant called for portions of this brand.

The following provisions of the Civil Code are applicable to the case at bar:

“Article 1913. In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the' time and place expressed in or implied by the agreement, offer- or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.
“Article 1931. A contract may be violated either actively, by doing something inconsistent with the obligation it has imposed, or passively, by not doing what was covenanted to be done, or not doing it at the time or in the manner stipulated or implied from the nature of the contract.
“Article 1933. When the breach has been passive only, damages are due from the time that the debtor has been put in default. * * * ”

Under all the circumstances of this case, we can find no more formal or effective compliance with the law as just cited than has been observed by the plaintiff firm and which is shown from its several letters written to defendant between November 11, 1920, and January 19, 1921.

In Woodstock Iron Works vs. Standard Pulley Mfg. Co., 115 La. 830, 40 South. 230, where the defendant as purchaser of certain iron delivered at intervals convenient to it, refused on a falling market to receive or give shipping instructions as to the balance, and where the seller placed defendant in default by letter sent six months after the term of the contract the court held that the purchaser had breached his contract in failing to take the entire shipment within the year stipulated, and that it had been sufficiently placed in default by the letter subsequently mailed.

Again, in the case of Joachams vs. Ong., 45 La. Ann. 1289, 14 South. 247, the seller, after putting the buyer in default, waited seven months before selling the object of the sale, during which time he made no attempt to compel compliance on the part of the purchaser. Notwithstanding this fact and the further fact that there was no evidence before the Court satisfactorily establishing the necessity of waiting to effect a sale, the Court allowed damages to the seller, based upon the contract price less the market value at the time of the re-sale.

The foregoing ruling is supported by abundance of authority as cited in 35 Cyc. 520, par. (b), to-wit:

“In the United States, the rule is well settled that where the goods are in his possession, the seller may, without committing a breach of the contract, re-sell the goods, if the original buyer refuses, without justifiable cause, to receive and pay _ for them, and may recover the loss sustained in the difference between the contract price and the price received on re-sale. * * * ”

In the case of Hays vs. Smith, 1 McGloin, 193, the Court said:

“Where defendants were in default by refusing to accept the property, plaintiffs were not compelled to sell at defendants’ risk immediately. Mere delay and indulgence in such a case, incurred in attempts by plaintiff to • secure a settlement, cannot avail defendants as a means to avoid liability.”

Defendant in the instant case has not pleaded nor has he successfully proven that any attempts were made by him to place the plaintiff in default and there is no evidence before. us to justify a conclusion by this Court that plaintiff at any time was unable or unwilling to furnish the flour contracted for. (Milam-Morgan Co., Ltd., vs. Atlantic Fruit Co., 12 Court of Appeal, 306.)

We are of the opinion that the defendant has defaulted upon his respective contracts and that plaintiff has complied with the law in respect to the method in which it should have legally placed defendant in default.

It is contended by counsel for' defendant that plaintiff- has not shown itself entitled to any damages, and further that the basis of the damage herein claimed is not well founded. In answer to these contentions, we find that the defendant was duly notified by letters addressed to him from the plaintiff firm, as well as from its attorney, that at a date fixed further default on defendant’s part would compel plaintiff to sell the untaken portions of the orders on the open market. Ample and reasonable time was given the defendant to comply with his obligation and to relieve the plaintiff of the necessity of resorting to these measures of minimizing its losses. It is plain from the rec.ord before us that the market prices received from the ultimate sale of the flour under the untaken orders, were carefully itemized and set forth in plaintiff’s petition and in the exhibit- setting forth the prices received on the several untaken brands when sold by plaintiff in compliance with this notice.

The defendant has neither alleged nor proven that the market price ultimately received was to his prejudice or that a better price could have been obtained at the time of or subsequent to defendant’s default. In the matter of Huntington Easy Payment Company vs. Parsons, 57 S. E. 252, the Court said:

“The burden of proving an omission of duty on the part of plaintiff to mitigate the damages rests upon the defendant.” 13 Cyc. 192; James vs. Kibler, 94 Va. 165.

We are of the opinion that the plaintiff should recover in this case for the full amount of damages herein claimed.

It is, therefore, ordered that the judgment herein appealed from be reversed, and that there now be judgment in favor of Schwartz & Ferry and against L. L.' Lamulle in the sum of Eleven Hundred and Seventy-three and 60/100 ($1,173.60) Dollars, with legal interest thereon from March 18, 1921, until paid, and for costs in both courts.


text:
    No. 8871.
    Orleans Appeal.
    SALVADOR FALCO v. HENRY L. GILBERT, Appellant.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Laws—Par. 72.
    On a rule for judgment upon the petition and answer under Sec. 1, S. 4 of Act 300 of 1914 no testimony or evidence is admissible.
    2., Louisiana Digest — Landlord and Tenant —Par. 84.
    The doctrine announced in Standard Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926, obtains only where the tenant is ready and willing to pay his rent promptly and takes advantage of an indulgence of only a few dáys.
    3. Louisiana Digest — Landlord and Tenant —Par. 93.
    A lessor may sue for rent whether due or not due, and is entitled to a judgment for the full amount of rent maturing during the suit.
    Appeal from Civil District Court, • Hon. Percy Saint, Judge. '
    This is a suit for rent. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    E. M. Stafford, attorney for plaintiff and appellee.
    Fred C. Marx, attorney for defendant and appellant.
   CLAIBORNE, J.

Plaintiff alleges that he leased to the defendant the property No. 7708 Sycamore Street for the term of twelve months commencing October 1, 1921, and ending September 30, 1922, at the monthly rental of $55 payable monthly, evidenced by promissory notes of the defendant, with the stipulation that should the lessee at any time fail to pay the rent punctually the rent for the unexpired term would at once become exigible; that the six several notes maturing on the last days of October, November, December, 1921, and January, February and March, 1922, with the exception of $5 paid on account of the first note, have not been paid, and by the terms of the lease all the other notes have become due; that there is therefore due plaintiff $655; that he has good reasons to. believe that the defendant lessee will remove the furniture out of said premises.

He prayed for provisional seizure and for judgment with lessor’s privilege.

The order was granted and the writ was issued.

The suit was filed April 19, 1922.

The defendant admitted all the allegations of the petition, but denied that the six rent notes sued on were past due at the time of the filing of said petition, and denied that the rent notes for the balance of the term of said lease were due at the time of the filing of said petition for the reason that he had rented from the plaintiff for several years, and that he had never paid his rent promptly and that plaintiff made no objection thereto; that plaintiff never notified defendant that he would-require the prompt payment of his rent and that several days before the filing of this suit, plaintiff advised defendant that he would wait for a payment on account of said rent, but in violation of said agreement plaintiff filed this suit almost immediately thereafter; that by reason of the extension granted as aforesaid the filing of this suit was premature and that defendant is entitled to have it dismissed on the ground of prematurity.

On June 20, 1922, plaintiff filed a motion in which .he alleged that on the face of the answer he was entitled to a judgment against the defendant and summoned him to show cause why judgment should not be rendered as prayed for.

The defendant made no written answer to the rule. It was made absolute and judgment was accordingly rendered in favor of plaintiff and against defendant as prayed for.

The defendant has appealed.

S. Fourth of Section 1 of Act 157 of 1912 reproduced literally in Act 300 of 1914, p. 612, reads as follows:

“At any time after the answer is filed the plaintiff may by rule submit to the Court the question of his right to a judgment upon the petition and answer. For the purpose of the trial of such rule all material allegations of fact ■ contained in the petition and not denied in the answer and all allegations of fact contained in the answer shall be deemed and taken as true. * * * If upon the consideration of the petition and answer, as above provided, the Court shall be of the opinion that the plaintiff is entitled to a judgment it shall proceed to render and sign such manner and form and with the same effect as if a trial had been had upon evidence regularly adduced, and such judgment shall constitute for all purpose a definitive judgment.”

Counsel for defendant, in his argument, complains that he was not permitted upon the trial of the rule, to introduce evidence in support of his defense.

It is evident that the Act does not contemplate the taking of testimony or the introduction of evidence upon a rule ’for judgment' upon the petition and answer. But what force could testimony or evidence add to the petition and answer, when the statute provides that “for the purpose of the trial of such rule all material allegations of fact contained in the petition and not denied in the answer, and all allegations of fact contained in the answer shall be deemed and taken as true”?

The only question for. solution therefore is, admitting that by testimony and evidence the defendant had established the truth of all the allegations in his answer, would he be entitled to have the suit against him dismissed on the grounds alleged by him?

The first decision upon the point rais'ed by the defendant was rendered by this Court in May, 1906, in Bacas vs. Mandot, 3 Ct. App. 324. In that case the Court said that the lessor was estopped from demanding the dissolution of a lease provided the lessee paid the rent, as had been usual, shortly after its maturity.

In that case the lessee paid the rent for September on October 7th prior to the filing of the suit.

In the case of Bruning vs. Grinage, 4 Ct. App. 429, the defense made in this case was recognized; but the suit and provisional seizure were maintained on the ground that no regular course of dealing between plaintiff and defendant had been shown. The lessee deposited in Court the amount of the rent sued for.

In the case of Roth vs. Fabian, 7 Ct. App. 422, Bacas vs. Mandot was affirmed. “During the course of the litigation each month’s rent was deposited in the registry of the Court as it accrued.” There was judgment for the rent due, dissolving the provisional seizure. Writ of review refused. See also 8597 and 8615, Ct. App.; Elgutter vs. Mutual Reserve Fund Life Assn., 52 La. Ann. 1740, 28 South. 289; Malochee vs. Great Southern Telephone & Teleg. Co., 49 La. Ann. 1691, 22 South. 922.

The suit of Standard Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926, was by provisional seizure for rent and for dissolution of lease for non-payment of rent on the date it became due. “Defendant at once offered to pay the rent.” The Court adopted the opinion .of this Court in Bacas vs. Mandot in which the Court said:

“Where a lessor, month after month, has, without, objection or protest, accepted the .rental a few days after the maturity of the notes, he cannot without previous notice to his tenant, claim a forfeiture of the lease.”

The case of Bonnabel vs. Metairie Cypress Co., 129 La. 928, 57 South. 271 was by provisional seizure for all the unpaid rent notes. “On receiving notice of the suit, defendant promptly tendered payment to plaintiff of the three past due notes which. plaintiff refused to accept.” The Court affirmed Standard Brewing Co. vs. Anderson and said:

“As all the notes are now past due, the judgment must be for the full amount sued for.” The money judgment for the rent was affirmed, but the provisional seizure was set aside.

It is evident that the case under consideration is not like the above cases. In those cases the defendants were able and willing to pay their rent, and took only a reasonable delay of a few days in putting off the day of payment, to which the lessor tacitly consented; and when sued for rent the lessees promptly paid or offered to pay.

But this case is entirely different. The defendant did not pay regularly after a few days’ delay; he was six months in arrears; and when sued, made no offer to pay. His case is governed by Briede vs. Babst, 131 La. 159, 59 South. 106. In that case the Court said on p. 162:

“It is perfectly evident from the evidence as a whole that plaintiff never expressly or otherwise waived his right to be paid his rent promptly; and that, if prompt payment was not exacted it was because of an unwilling and forced indulgence on his part. To such a situation the doctrine of the case of Standard Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926, is totally inapplicable. That doctrine can obtain only where the tenant is ready to pay the rent promptly and needs no indulgence, but delays in paying simply because he is under the impression, produced by the lessor’s past conduct, that it is a matter of no moment whether the payments be made promptly or a few days late.”
“Where suit is brought for rent due and to.become due and pending suit the whole amount becomes due, judgment may be rendered for the whole amount.” Shreveport vs. Mandel, 128 La. 314, 54 South. 831; Cooley & Phillips vs. P. Esteban, 26 La. Ann. 515.
“As all the notes are now past due, the judgment must be for the full amount sued for.” Bonnabel vs. Co., 129 La. 928 (930); Durel vs. Boisblanc, 1 La. Ann. 408; Miss McCalop vs. Fluker’s Heirs, 12 La. Ann. 551.
“The plea of prematurity cannot be set up in an answer.” Pecquet vs. Pecquet’s Executor, 17 La. Ann. 232.

But under Article C. P. 287, a lessor may “sue for rent, whether the same be due or not due * * * provided that in case the rent be paid when it falls due, the costs of the seizure shall be paid by the lessor, unless, etc.” Wilcoxen vs. Bowles, 1 La. Ann. 230; Robinson vs. Staples, 5 La. Ann. 712; Thomas vs. Dundas, 31 La. Ann. 184, 186; Dillon vs. Porier, 34 La. Ann. 1100, 1102

It was therefore immaterial whether the plaintiff had granted the defendant time to pay the rent. Defendant’s only right was to pay the rent when due and thus to save the costs of suit. It is not pretended that the rent is not now due.


author: REYNOLDS, J.

text:
    No. 1841
    Second Circuit Appeal
    F. H. BYNUM v. JAMES WILLIAMS
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Appeal—Par. 625.
    The decision of the trial judge on matter of fact is affirmed where clearly cor rect and corrected where manifestly er ■ roneous.
    Appeal from Twelfth Judicial District Court of Louisiana, Parish, of Sabine, Hon. J. H. Boone, Judge.
    This is a sequestration suit in which plaintiff claims ownership of an interest in cotton, sugar cane, hogs, etc., and sues for value of work done.
    There was judgment for plaintiff and de fendant appealed.
    Judgment reduced and affirmed.
    S. D. Ponder, of Many, attorney for plain tiff, appellee.
    R. A. Fraser, of Many, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit in which plaintiff obtained a writ of sequestration and had seized certain cotton, corn, sugar cane, hogs and potatoes. • He claimed to own a'half interest in the cotton and sugar cane and to own all of the corn, hogs and potatoes. Plaintiff also sues for judgment for work done for the defendant and for the value of property belonging to plaintiff held by defendant.

The defendant claimed that plaintiff was due him for account of supplies furnished in an amount more than enough to pay plaintiff for all his account and to take up his interest in the corn and cotton, and denies that he ever claimed the hogs, sugar cane or potatoes.

There was judgment for plaintiff and defendant appealed. Judgment amended.

OPINION.

The contention in this case is largely one of fact touching the correctness of plaintiff’s account for work done for the defendant and the correctness of defendant’s account for supplies furnished to plaintiff and the value of property belonging to plaintiff held by the defendant.

The District Judge, in a carefully considered, written opinion, adjusted the accounts of both plaintiff and defendant and found that defendant was due plaintiff $22.41. ■ After carefully reading all the evidence, we are not prepared to say that there is any manifest error in the finding of the District Judge on this question of fact as to the correctness of plaintiff’s and defendant’s accounts.

The District Judge gave plaintiff judgment for one half of three bales of cotton, n our opinion his judgment should have been for a one half interest in two bales of cotton, for the reason that we think the evidence shows there were but two bales of cotton to be divided between plaintiff and defendant.

Plaintiff testified (page 22) that he made about six bales of cotton.

Mrs. S. B. Bynum testified (page 35) that about half of the cotton was burned.

From this evidence we have reached the conclusion that plaintiff made about six bales of cotton, one half of it was burned, and one bale was sold by plaintiff and defendant, leaving two bales to be divided.

Only two bales of cotton were seized by the sheriff under the writ of sequestration herein.

For these reasons, it is ordered, adjudged and ,decreed that the judgment of the lower court be so amended as to read as follows:

It is therefore ordered, adjudged and decreed that plaintiff, F. B. Bynum, do have and recover judgment against defendant, James Wiliams, decreeing said. Bynum to be the owner of and entitled to the possession of an undivided half of the two bales of cotton under seizure in this case, or the proceeds thereof.

It is further ordered, adjudged and decreed that plaintiff have judgment against defendant for the full sum of $22.41 with 5% per annum interest thereon from judicial demand until paid.

It is further ordered that the writ of sequestration herein sued out be, and the same is hereby, sustained, without damages.

And, as thus amended, the judgment of the lower court is affirmed.

It is further ordered that defendant James Williams pay all the costs of this suit, except the costs of the appeal.


author: CARVER, J.

text:
    No. 1951
    Second Circuit Appeal
    R. L. DAY v. CARL GOFF ET AL.
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    ON MOTION TO DISMISS
    1. Louisiana Digest — Appeal—Par. 268, 283.
    “The well-supported rule of law is that an order of appeal, suspensive and devolutive, not perfected by furnishing bond, does not bar the appellant the right within the year to another order for a devolutive appeal.”
    2. Louisiana Digest — Appeal—Par. 258, 357.
    In this ease defendant’s counsel, in open court, waived notice of the appeal. The notice of appeal required by law is the citation, and the waiver of it, we think, must operate the same as the service would have done, curing any irregularities.
    ON EXCEPTION NO CAUSE OF ACTION
    3. Louisiana Digest — Pleading—Par. 62.
    Code of Practice, 298, paragraph 7, and Code of Practice, 398, give a party claiming ownership of property about to be sold by the sheriff the right to enjoin the sale; and in this case plaintiff does not claim ownership hut a chattel mortgage, so is not entitled to the injunction. The exception no cause of action is therefore sustained.
    4.Louisiana Digest — Fixtures—Par. 1, 2.
    Where the things are not permanently attached to the building, either by plaster, mortar or in any other way which would prevent their being taken off without breaking or injuring them or the building, they are not immovable by destination.
    (See Civil Code, Arts. 467, 468, 469. Editor’s note.)
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a .suit enjoining a sale of movables.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed with reservations.
    J. Rush Wimberly, of Arcadia, attorney for plaintiff,, appellant.
    Goff & Barnette, of Arcadia, attorneys for defendants, appellees.'
   CARVER, J.

Defendant Goff sued out executory process to enforce a chattel mortgage given March 10, 1922, by Bryce-land Mercantile Company, Inc., on property described in the mortgage as follows:

“The stock of merchandise and all fixtures in the store of Bryceland Mercantile Company and all notes and open accounts and other movable property of said corporation.”

Thereupon the plaintiff herein brought this injunction suit to restrain the' sheriff from selling under said process the following items of property seized thereunder, to wit:

Six showcases.

One Woodstock typewriter.

One iron safe.

One adding machine.

One gun case.

One settee.

One heater.

Two pairs of scales.

He alleges that he has a prior mortgage on the lot and building in which those items had been placed for service and improvements thereby becoming immovable by destination; that Goff’s proposed sale thereof separately from the building would cause him injury; and that Goff’s mortgage is void as to said items because of insufficiency of description.

He prayed that Goff’s mortgage be decreed void as to those items and that the sheriff be enjoined from selling them.

By supplemental petition he alleged that Goff’s mortgage was a fraudulent simulation.

Goff filed an exception of no cause of action, specifying:

1. That plaintiff did not allege himself to be a creditor of Bryceland Mercantile Company, Inc.

2. That he does not allege insolvency of that company or make it a party to the suit.

3. That he did not allege that the items were attached to the building in such manner as to make them a part thereof or that they were a part by nature.

4. That he did not allege ownership of the items themselves.

5. That he did not allege that he had any lien or privilege on the items entitling him to the proceeds by reference.

This exception was referred to the merits.

Goff then filed an answer denying the allegations of plaintiff’s petition generally and specially alleging that plaintiff’s mortgage, as to the items mentioned, was void as to him on various grounds, namely:

As a real mortgage, because the items are not immovables by destination, and as a chattel mortgage, because not recorded in the chattel mortgage book; and because the resolution of the board of directors of the Bryceland Mercantile Company, Inc., though authorizing the mortgage of the house and lot did not authorize the mortgage of the items in contest.

He prayed that his own mortgage be decreed valid and plaintiff’s mortgage invalid as to the property in contest, for dissolution of the injunction, and for damages.

The District Judge rendered judgment rejecting plaintiff’s demands and dissolving the writ of injunction, and reserved to defendant the right to sue for damages for illegal issuance of the injunction.

This judgment was rendered and signed December 8, 1922.

On the same day plaintiff’s counsel, in open court, moved for orders of suspensive and devolutive appeal, both of which were granted, returnable to this court on January 2, 1923.

No bonds were given under these orders nor was the record filed on or before the return day.

On March 31, 1923, the following action . was taken, as shown by the court minutes:

“Orders of appeal, devolutive prayed for by plaintiff in open court. Same granted and made returnable on second Monday in May, 1923, to Circuit Court of Appeals at Shreveport, La. The devolutive appeal bond fixed in the sum of $100.00. Formal notice of the above appeal is waived by counsel for defendant.”

The bond was duly given under this order and the record filed in this court April 27, 1923.

Defendant’s counsel move to dismiss the appeal on two grounds.

1. That plaintiff’s failure to give bond and file the record in this court under the first order of appeal was an abandonment of the appeal.

Citing:

Brickwell vs. Conner, 10 La. Ann. 235.

Roberts vs. Benton, 1 Rob. 100.

Jenkins vs. Bonds, 3 La. Ann. 339.

Levee Board vs. Land Co., 132 La. 911, 61 South. 868.

Girod vs. Brick Co., 127 La. 328, 53 South. 582.

2. That the order of appeal obtained March 31, 1923, (that being a different term of court) was by motion in open court and therefore illegal, because Code of Practice, 573, required it to be taken by petition.

ON MOTION TO DISMISS

I.

The jurisprudence is conflicting on the question whether the failure to file the record on or before the return day, where no appeal bond has been given, is an abandonment of the appeal. Some of the earlier authorities hold that it is. But we think the case of Gresham vs. Collier, 128 La. 145, 54 South. 590, must be regarded • as settling the question the other way.

The court in that case says:

“The well supported rule of law is that an order of appeal, suspensive and devolutive, not perfected by furnishing bond, does not bar the appellant the right within the year to another order for a devolutive appeal.”

Citing Durand vs. Landry, 118 La. 711, 43 South. 307.

The Durand case affirmed the decision of Bowie vs. Davis, 33 La. Ann. 345.

In the Bowie case, the question was vigorously contested, the appellee’s counsel urgently arguing that the case of Mortee vs. Edwards, 20 La. Ann. 236, had overruled the jurisprudence of forty years without even referring to if, and appealed .to the court to overrule the Mortee case. This, though, the court refused to do, holding as follows:

"The inability or the omission of the plaintiff to furnish a bond and fulfill the condition precedent on which the suspensive appeal was granted did not preclude the party from applying within the year for a devolutive apeal. The jurisdiction of this court attaches only when the bond is filed.”

Citing the Mortee case; also Gibson vs. Selby, 2 La. Ann. 630, and Tarlton vs. Wofford, 15 La. Ann. 592.

The court said, further, “the appellant gave no bond under the order for a suspensive appeal but gave bond after getting an order for a devolutive appeal. This was not an abandonment of the appeal. There is no appeal until the bond is given”. Citing Bank of America vs. Fortier, 27 La. Ann. 244.

The decision in the case of Levee Board vs. Land Company, 132 La. 911, 61 South. 868, does not', in our opinion, overrule the Gresham case and the authorities on which it is based. That case holds that inasmuch as the Levee Board is not required -to 'give bond, the mere taking an order of appeal perfects the appeal and if, therefore, the record is not filed within the legal delays the appeal must be regarded as abandoned. Where, however, a bond is required, we think, as was said by the court in the Bowie case, that there is no appeal until the bond is given and therefore there is ho abandonment.

The previous appeal in the Girod case which the court in 127 La. 328, 53 South. 582, held- had been abandoned for failure to file the record in time, was evidently one where a bond had been given. Girod vs. Brick Company, 126 La. 385, 52 South. 550.

II.

It was irregular to appeal by motion instead of by petition, tbe appeal having been taken at a term of court subsequent to the one at which the' judgment was rendered.

Code of Practice, 573.

But in Prudhomme vs. Edens, 6 Rob. 64, it was held that:

“Where an appeal is applied for after the term of court at which judgment was rendered, it should be by petition, as required by article 573 of the Code of Practice, and not by motion. But where an appeal has been allowed, under such circumstances, on motion, and citation has been duly served, and the other requisites complied with, it will not be dismissed for such irregularity.”

The Edens case was cited approvingly in Mayville Canal Co. vs. Lake Arthur, etc., Co., 119 La. 447, 44 South. 260, which also cited the following cases:

De St. Avid vs. Pinchot, 3 La. Ann. 6.

Wheeler vs. Peterkin, 38 La. Ann. 663.

Widow St. Romes vs. McCarty, 21 La. Ann. 277.

Pratt vs. Erwin, 5 La. Ann. 115.

State, ex rel. City of New Orleans vs. Judge, 21 La. Ann. 734.

In this case defendant’s counsel, in open court, waived notice of the appeal. The notice of appeal required by law is the citation and the waiver of it, we think, must operate the same as the service would have done, curing any irregularities.

The motion to dismiss is overruled.

ON EXCEPTION OF NO CAUSE OF ACTION.

We think the exception of no cause of action should have been sustained, and this seems to be all that the judgment below realy amounts to. It merely dismisses plaintiff’s suit and reserves defendant’s right to sue for damages but does not pass on the validity of either plaintiff’s mortgage or that of defendant.

Code of Practice, 298, paragraph 7, and Code of Practice, 398, give a party claiming ownership of property about to be sold by the sheriff the right, to enjoin the sale; but in this case plaintiff does not claim ownership, so is not entitled to the injunction.

In Layman vs. Woulfe, 136 La. 767, 67 South, 823, where a party holding notes purporting to be secured by mortgage on certain real estate enjoined the sale thereof under executory process obtained by another on notes purporting to be similarly secured, the alleged ground of the injunction being that the mortgage securing said latter notes was not. authentic, the court said:

“But in the case at bar the intervenor does not claim ownership of the property seized and his assertion of a privilege on the proceeds of the property would not have entitled him to an injunction.”

In this case the plaintiff’s right to the proceeds cannot be passed upon because he does not sue for the proceeds.

As a revocatory action the petition is faulty in failing to allege that the Bryce-land Mercantile Company, Inc., was insolvent.

Civil Code, 1971, provides:

“This action can only be exercised when the debtor has not property sufficient tó pay the debt of the complaining creditor, or of all his creditors where there has been a cession, or any proceeding analogous thereto.”

In Hicks vs. Thomas, 114 La. 219, 38 South. 148, at page 223, the court says:

“Plaintiff seeks to set aside the sale in question on the ground of fraud without having alleged the insolvency of J. Thomas, vendor to Quigley & Co., and without proof of his insolvency.
“Repeated decisions upon the subject have held that the allegation and proof in question are indispensable in actions of a revocatory character.”

Citing: Hart & Co. vs. Bowie, 34 La Ann. 323, and Abat & Generes vs. Penny 19 La. Ann. 289.

In answer to the claim that plaintiff, is the holder of a real mortgage on the property in question, on the theory that said property was immovable by destination and part' of the realty and that its sale separate from the building of which it is alleged to form a part by such destination, would injure plaintiff, it may be replied:

1. That, in our opinion, were the items immovable by destination, such separate sale would not injure him. We cannot conceive that the lot and building sold together with the typewriter, safe and other items, would bring more than the whole would if these items were sold separately from the building.

2. Besides, though, in our opinion, the items are not immovable by destination.

Civil Code, 467, as amended by Act 51 of 1912, provides:

“Wire screens, water pipes, gas pipes sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures, bathtubs, lavatories, closets, sinks, gasplants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building, are immovable by their nature.”

Article 468 provides as follows:

“Things which the owner of a tract of land has placed upon it for its service and improvement, are immovable by destination.
Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to wit:
Cattle intended for cultivation.
Implements of husbandry.
Seeds, plants, fodder, and manure.
Pigeons in a pigeon house.
Beehives.
Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works.
The utensils necessary for working cotton, and saw-mills, taffia distilleries, sugar refineries and other manufactures.
All such movable's as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”

Article 469 provides as follows:

“The owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster or mortar, or such as cannot be taken off without breaking or injuring the part of the building to which they are attached.”

It is clear that the articles in question in this case, to wit: show-cases, typewriter, iron-safe, adding machine, gun-case, settee, heater, and scales, are not of the character of things' treated of in either one of these three articles. There is no pretence that they are permanently attached to the building either by plaster, mortar or in any other way which would prevent their being taken off without breaking or injuring them or the building. The claim, as we understand it, is merely that they are attached in a legal sense because placed in the building for its service and improvement. But it is apparent from the nature of the items and from their not being so permanently attached that they were. not placed in the building for the purpose of serving or improving it but rather for the convenience of the particular kind of business that was being conducted in it.

In L’Hote vs. Fulham, 51 La. Ann. 780 25 South. 655, the court held, in a well considered case, that chandeliers and brackets attached to gas pipes and the walls of a building were movable, not immobilized by destination.

In Scovell vs. Shady Side Co., 137 La. 918, 69 South. 745, and Coguenhem vs. Troclair, 137 La. 985, 69 South. 800, the court discussed at length the question of immovables by destination.

In the Scovell case, it held that bath tubs, toilets, stationary washstands, a complete double outfit for heating purposes, mantel pieces, and certain grill work, were immovable by destination because evidently placed in the dwelling house to remain there permanently. The proof showed that the removal of the things mentioned would not only leave holes in the walls, ceilings and floors but that the rooms would b'e left rough, unfinished and in an injured condition and that repairs would have to be made to the house.

It also held that combination gas and electric light chandeliers and brackets were also immovable by destination. It differentiated the L’Hote case, pointing out that in that case the chandeliers and brackets were merely screwed and could without injury be detached by unscrewing whereas in the Scovell case they were, as to the gas fixtures, parts of a plant established in the cellars of the house for the manufacture of gas, and, as to the electric light fixtures, were accessories to an electric light plant established by the owner in a nearby sugar-house.

None of these fixtures could be detached without disruption of these plants.

In the Coguenhem case, the court quotes from Deholombe de la Distinction de Biens, vol. 9, page 100, Nos. 199 and 200, as follows:

“The point is that’ the movable is attached permanently at least in the intention of the owner, to the immovable, associated with its destiny, to be leased, sold, expropriated with it, donated or bequeathed with it, in a word, to be from henceforth considered not separately, isolatedly, in its individuality as a movable, but, on the contrary, in its union with the fundus itself, as a dependenccy or accessory of this fundus.
And hence this destination and especially this ' perpetuity of the destination which thus unites the movable with the immovable, which merges them in the same hand, to remain always together, in such way that the person who shall have the immovable shall by reason of that fact alone have the movable also, the permanent perpetual destination fictively imparts to the movable the immobile nature of the fundus.”

The articles in this case, merely by being placed in the building and without being affixed thereto, surely have not been intended by the owner to remain with the building “to be leased, sold, expropriated with it, donated or bequeathed with it, in a word, to be from henceforth considered not separately; isolatedly, in its individuality as a movable, but on the contrary, in its union with the fundus itself, as a dependency or accessory of this fundus”?

The District Judge not having passed on the validity of either the plaintiff’s mortgage or that of defendant, and the plaintiff not having prayed for the proceeds of the sale but merely having enjoined the sale, we do not pass on the validity of those mortgages either, except that we hold that the articles in question are not immovables by destination and therefore are not covered by the mortgage which plaintiff has considered merely as a mortgage on the lot and building. The’ right is reserved to each party to claim the validity of his own and the invalidity of his opponent’s mortgage, with the exception above mentioned as to plaintiff’s claim of mortgage on the items as immovable by destination. With this reservation, the judgment of the lower court is affirmed.


author: ODOM, J.

text:
    No. 1964
    Second Circuit Appeal
    W. B. SMITH & CO. v. H. D. LOWE
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 128.
    Under Constitution of 1921, Section 29, Article VII, the Court of Appeal has no jurisdiction where the amount in dispute is less than $100.00.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    ■ This is a suit to collect a balance on a promissory note where the amount due was less than $100.00.
    Appeal dismissed.
    Goff & Barnett, of Arcadia, attorneys for plaintiff, appellee.
    F. R. Taylor, Stewart & Stewart, of Minden, attorneys for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note which reads as follows:

“$142.78. 3/1 1915.
Oct. 1-1915 after date I promise to pay to the order of W. B. Smith & Co. at Heflin, La.
One hundred forty two & 78/100 dollars with 8 per cent per annum interest thereon from maturity until paid.
Value received. To secure payment of this obligation at maturity I, joined by my wife * * * do hereby especially waive all homestead rights and exemptions guaranteed under Articles 244, 245, 246 and 247 of the Constitution of the State of Louisiana, to the following described property, to wit: 1/10 undivided interest in Chas. Lowe est. Further description of property being waived. H. D. Lowe.
I authorize my wife to sign above obligation.
Attest:
W. B. Smith.”

Plaintiff alleged that the defendant was indebted unto it in tlie amount of this note and interest, less a credit of $25.00, paid December 1, 1916, and less a credit of $45.25, paid October 27. 1917.

Alleging that the defendant was- an absentee and that he had mortgaged, assigned and disposed of his property to the prejudice of the petitioner, plaintiff procured the appointment of an attorney to represent the absent defendant, who filed answer.

On the trial of the case in the District Court, there was judgment for the plaintiff reading, insofar as same need be quoted, as follows:

“It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, W. B. Smith & Co. and against the defendant, H. D. Lowe, for the full sum of one hundred forty two and 78/100 ($142.78) dollars, with eight per cent per annum interest thereon from October 1st, 1915, until paid, less the following credits:
Twenty-five ($25.00) dollars, paid Dec. 1st, 1916, forty-five and 25/100 .($45.25) dollars, paid October 27th, 1917.”

From which judgment the defendant appealed.

Plaintiff, appellee, has filed a motion to dismiss the appeal on the ground that this court has no jurisdiction rationae materiae. This motion must prevail.

A simple mathematical calculation will disclose that the amount in dispute, exclusive of interest, at the time the suit was filed and at the time the judgment was rendered, was less than $100.00, the lower limit of the jurisdiction of this court.

Plaintiff sued for $142.78, with 8% per annum interest thereon from October 1, 1915, until paid, less a credit of $25.00 paid December 1, 1916, and less a credit of $45.25 paid October 27, 1917.

The court gave judgment for said amount, less credit for payments made on the dates stated.

From October 1, 1915, the maturity of the note, until December 1, 1916, the date the principal, the sum of $11.68, and this on which the first payment, of $25.00, was made, is one year and two months, and- interest at 8% per annum on $142.78 for one year and two months is $13.32.

Under Article 2164 of the Civil Code—

“Every payment which does not extinguish both the principal and the interest, must be imputed first to the payment of the interest.”

Imputing the $25.00 payment first to the interest, which amounted to $13.32, there was left to apply as a payment on amount deducted from the principal of the debt left a balance of $131.10.

The second payment was made on October 27, 1917, or ten months and twenty-seven days after the first one was made, interest at 8% per annum on $131.10 for ten months and twenty-seven days is $9.52, and applying the $45.25 payment first to the interest there was $35.72 left to apply as a payment on the principal. This amount deducted from $131.10 leaves a balance of $95.38 due on the note.

This, according to the pleadings and the judgment, is the amount in dispute, exclusive of interest. This court has no jurisdiction. See Constitution of 1921, section 29, Article VII.

The appeal is dismissed, appellant to pay costs.


text:
    No. 1965
    Second Circuit Appeal
    MRS. LIZZIE HOLLINGSWORTH v. PETER PARSONS
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Bills and Notes — Par. 123.
    The maker of a note may set up against the holder who purchased after maturity any equities which he may have against the payee.
    2. Louisiana Digest — Bills and Notes — Par. 123.
    The holder of a note purchased after maturity can recover from the maker who gave the note for the balance due on the purchase price of machinery only for the machinery which has been delivered to the maker, but not for that machinery not delivered.
    3. Louisiana Digest — Appeal—Par. 625.
    Where the judgment of the trial court is clearly erroneous, it will be reversed and corrected on appeal.
    Appeal from City Court of the City of Shreveport, Louisiana, Hon David B. Samuels, Judge.
    This is a suit on a promissory note for $250.00. Defendant denies liability on the ground that the consideration for the note has failed.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and rendered.
    T. H. McGregor, of Shreveport, attorney for plaintiff, appellant.
    Murff & Mabry, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit on a promissory note for $250.00. Defendant denies liability on the ground that the consideration for the note has failed. There was judgment for defendant and plaintiff has appealed.

Judgmeiit reversed and rendered.

On March 24, 1924, J. J. Hollingsworthsold to P. Parson’s Boiler & Sheet Iron Works-

One Ames Boiler, 60 x 16.

One Houston, Stanwood & Gamble engine with 3-inch governor.

Smokestack for boiler, grates, etc.

On May 26, 1919, P. Parsons wrote to J. J. Hollingworth that certain parts of the machinery sold to him had not been delivered.

On June 24, 1919, P. Parsons gave his note, the note sued on, for a balance due on the price of the property sold to P. Parson’s Boiler & Sheet Iron Works by J. J. Hollingsworth.

OPINION.

Miss Lizzie Hollingsworth, as owner and holder of the note sued on, filed this suit, and she is entitled to recover any amount that may be due thereon.

The evidence shows that the note was presented at maturity for payment and that it had not at that' time been transferred to Miss Lizzie Hollingsworth, the plaintiff herein. Hence, the defendant is entitled to set up as against said note any equities that he may have against J. J. Hollingworth, the payee in said note.

The bill of sale shows that J. J. Hollingsworth sold to P. Parson’s Boiler & Sheet Iron Works—

One Ames Boiler, 60 x 16.

One Houston, Stanwood & Gamble engine, with 3-inch governor.

One smokestack for boiler.

Grates, etc.

It is admitted in the answer that P. Parson’s Boiler & Sheet Iron Works received • from J. J. Hollingsworth—

Ffve arch bars,

One smokestack and saddle,

One engine.

The evidence shows, and it is not disputed, that the boiler was delivered. P. Parsons testified, on page 11, as follows:

“Q. You state that you did not get anything but a boiler and smokestack?
“A. That is all I got. I hauled the balance myself.
“Q. You mean you hauled that besides the stuff that he delivered?
“A. The only thing that he delivered was the boiler and smokestack.
“Q. You got more than the boiler and smokestack?
“A. Yes, sir.

From the above evidence it will be seen that all of the articles sold by J. J. Hollingsworth to P. Parson’s Boiler & Sheet Iron Works were delivered, except the grates, and the evidence does not show whether they were in the boiler or not, and the items covered by, “etc.” and the governor.

The undisputed evidence of Mr. Parsons is that the governor was worth $90.00. This strikes us as being a high price for a governor that had gone through a fire, but it is not denied by any one that the governor was worth $90.00 as stated by Mr. P. Parsons. Mr. Hollingsworth stated, on page 22, that he told Mr. Parsons he would get the governor for him. He further admits that he did not do so. Under this evidence we think there must be deducted from the note sued on the sum of $90.00. There is no itemized statement of the value of anything covered by, “etc.” or of the grates that are claimed not to have been delivered. Therefore the demands of defendant for these items must be dismissed as of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, Miss Lizzie Hollingsworth, have and recover of and from the defendant Peter Parsons judgment for the full sum of two hundred and fifty dollars with 8% per annum interest thereon from June 24, 1919, until paid, subject to a credit of ninety dollars of date June 24, 1919.

It is further ordered, adjudged and decreed that the demands of the defendant for all of the items failed to be delivered, except that of ninety dollars for the governor, be dismissed as of non-suit, and defendant’s right to sue the plaintiff herein for the amount of any articles that went to make up the consideration for the note sued on and which were not delivered, up to the amount of this judgment, is fully reversed.

It is further ordered, adjudged and decreed that plaintiff, Miss Lizzie Hollingsworth, do have and recover of defendant Peter Parsons, judgment for all costs in both courts.