author: WEBB, J.

text:
    No. 2817
    Second Circuit
    CENTRAL LUMBER CO., INC., v. DOUGLAS ET AL.
    (February 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)

      Lee & Gilmer, of Shreveport, attorneys for (plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This action was brought by plaintiff, Central Lumber Company, Inc., a corporation, against defendants T. P. and A. M. Whittington and S. A. E. and S. L. Douglas, to recover judgment against them in solido for the price of material furnished by plaintiff and used in constructing improvements on land owned by S. A. E. and S. L. Douglas, and for recognition of a lien and privilege on the land and improvements to secure the claim.

Plaintiff alleged that S. A. E. and. S. L. Douglas had entered into a contract with T. P. and A. M. Whittington under which the latter agreed to construct improvements on the land, and that the Whittingtons had ordered from the plaintiff the material to be used and which was used in constructing the improvements, that the contract between the Whittingtons and S. A. E. and S. L. Douglas was not recorded, and that the latter had failed to require a bond, of the Whittingtons for the faithful performance of the contract* and payment of subcontractors, furnishers of material, etc., and that plaintiff had caused to be served on S. A. E. and S. L. Douglas a sworn itemized statement of its claim and had recorded a sworn statement of the amount of the claim in the office of the recorder of mortgages of the parish where the work was done, etc.

Defendants admitted that a contract had been entered into between S. A. E. and S. L. Douglas and T. P. and A. M. Whittington for the construction of improvements by the latter on the property of the former, and that the contract had not been recorded, and that there was not any bond required of the contractors, but denied that plaintiff had served a sworn itemized statement of its claim on S. A. E. and S. L. Douglas or that it had recorded a sworn statement of the amount of its claim in the office of the .recorder of mortgages.

On trial, judgment was rendered in favor of plaintiff against all of the defendants for a part of the amount claimed, with recognition of a privilege on the land and improvements to secure same, and S. A. E. and S. L. Douglas appealed.

It is conceded that, as between plaintiff and appellants, the rights of the parties are controlled by the building statute (Act No. 139 of 1922) in foice at the time of the transaction. That statute, in substance, provides that, where owners of real estate contract, for the construction of improvements on the property, the contract shall be reduced to writing and bond required of the contractors for the faithful performance of the work and payment of subcontractors, furnishers of material, etc., and that the contract and bond shall be recorded in the office of the recorder of mortgages of the parish where the work is to be done, and, in default of the contract being recorded and bond required and recorded, etc., provision is made whereby the subcontractors, furnishers of material, etc., may, by mailing or otherwise sending to the owners of the property a sworn itemized statement of their claims and recording a sworn statement of the amount thereof in the office of the recorder of mortgages of the parish where the work is done, hold the owners personally liable for the claims to the same extent as the surety on the bond would have been, with a privilege on the property to secure the indebtedness (secs. 1, 2, 5, Act No. 139 of 1922) ; and, where the improvements are made by the owner of the property, and the material, etc., is furnished to the owner for and is used by him in constructing improvements thereon, provision is made for the protection of persons dealing directly with the owner and furnishing him with material, etc. Section 11 of Act No. 139 of 1922.

Appellants S. A. E. and S. L. Douglas urge that plaintiff failed to establish that it had served on or sent them a sworn itemized statement of the claim, or that it had recorded a sworn statement of the amount thereof in the office of the recorder of mortgages, as required by the statute (Act No. 139 of 1922, sec. 2), and that the judgment against them for the amount of the claim and recognizing a privilege on the property to secure it should be reversed, and, while appellee contends that the .evidence established compliance with section 2 of the statute, relative to service and recordation of its claim, it contends that the evidence established there was not any contract between S. A. E. and S. L. Douglas and T. P. and A. M. Whittington, and that S. A. E. and S. L. Douglas are liable • as having undertaken the work of improving the property for their own account under the provisions of section 11 of the statute, and that it was not necessary that notice of its claim should have been served on S. A. E. and S. L. Douglas, or that a sworn statement of its amount should have been recorded in the office of the recorder of mortgages.

Plaintiff alleged and defendants admitted that the material had been furnished to T. P. and A. M. Whittington, and the evidence established that such was the fact, and we do not think it is ¡possible to say there was any conventional obligation on the part of S. A. E. and S. L. Douglas to pay for the material furnished, by plaintiff to T. P. and A. M. Whittington, and, if S. A. E. and S. L. Douglas are liable, it must be under the obligation imposed by the statute, and we do not deem it necessary to consider the provisions of section 11 of the statute, which concededly relate merely to the question of preserving the privilege granted by the statute to persons dealing with the owner of the property with reference to its improvement where such improvement is undertaken by the owner for his own account.

The evidence established that there was filed and recorded in the office of the recorder of mortgages an itemized statement of the account, together with a purported affidavit of the correctness thereof, etc., in which the officer who signed the jurat declared that the Central Lumber Company, Inc., personally appeared before him and made the affidavit which is signed “Central Lumber Company, Inc. by W. L. De Loach”; and the only objection urged is as to the sufficiency of the affidavit.

Under section 2 of the statute it is provided that “every person having a claim against the * * * contractor (etc.) * * * shall * * * mail or otherwise send a sworn itemized statement thereof to the owner (etc.), and record a sworn statement of the amount thereof * * * in the office of the Recorder of Mortgages for the Parish in which the said work has been done”; and, it being conceded that the statute by which the owner of the property is held liable for the debts of the contractor and his property subjected to a privilege to pay the indebtedness must be strictly construed (Casey vs. Allain, 9 La. App. 725, 120 So. 420; Meriwether Supply Co. vs. Baugh, 6 La. App. 730) it is urged that the service and recordation of the statement was not sufficient to convey notice either to S. A. E. and S. L. Douglas of the claim or to third persons of the claim against the property.

■ The statute does not state in what form the affidavit shall be made, and, while the form of the affidavit in the present instance is subject to criticism, we are of the opinion that it must be regarded as an affidavit and W. L. De Loach as the affiant, and, as the statute does not expressly state that the affidavit must be made by the claimant, it must be held to contemplate that, where the claimant is a corporation, it will not be so made, and the question presented is whether or not it is necessary, where the affidavit is made by another than the claimant, that the authority of the affiant should appear.

The affidavit required by the statute is ex parte and does not make proof of the correctness of the claim, and may be made on information and belief (Crane Co. vs. Epworth Hotel, etc., Co., 121 Mo. App. 209, 98 S.W. 795), and, as plaintiff is pressing the claim and must be held to have at least ratified the action of De Loach, the objection that the affidavit does not show the authority of De Loach is highly technical and can be sustained only on the theory that the affidavit was not in strict compliance with the statute and not on the theory that the service was insufficient notice to defendants that plaintiff had furnished material used in improving defendant’s property or that the recordation of the, statement was insufficient to convey notice to the public or third persons dealing with the owner with reference to the property that a lien was claimed on the property.

As stated, however, the statute does not provide that the affidavit shall be made by the claimant, and must contemplate that it may be made by another; neither does the statute provide what shall be the form or substance in which the claim of lien or privilege shall be drafted, and we assume that the only object to be attained is notice to the person who is sought to be held personally responsible for the claim, and to give notice to persons who may deal with the owner that a privilege is claimed on the property; and we think those objects were fully attained by the service and registry made in the present case.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: ODOM, J'.

license: Public Domain

text:
    No. 2831
    Second Circuit
    THEUS v. CITY OF MINDEN ET AL.
    (March 24, 1930. Opinion and Decree.)
    J. F. Mclnnis and C. E. Hayes, of Min-den, attorneys for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   ODOM, J'.

This is an injunction suit by a property owner to prohibit the city of Minden from laying a sidewalk in front of his property. A rule nisi was issued, and upon trial, the court granted a temporary restraining order, and the city appealed.

No steps were taken by either party to have the case disposed of in this court until September, 1929, three years later, when appellants moved to have the case set down for .hearing, in which motion counsel alleged that, “pending this suspensive appeal, the cement sidewalk was completed and in suit No. 5966, Sam S. Theus, vs. City of Minden et al., the plaintiff brought suit for damages against the city of Minden and the contractors who built the sidewalk for the illegal trespass alleged in suit No. 5554 (the suit now on appeal before this court) and this suit for damages has been put at issue by answer and reconventional demand for amount of assessment made against plaintiff’s property for the construction of the sidewalk.”

■ The case was fixed for hearing in this court on February 4, 1930. Appellee made no appearance. Counsel for appellants states in brief:

“The work has since been entirely completed, which plaintiff judicially admits in suit in District Court, No. 5966, in which he claims damages for the construction of the sidewalk, and hence the injunction, if allowed by this Court, would serve no purpose.” •

The only purpose of the suit was to prevent the city from laying a sidewalk; but, pending the appeal, the work has been done, the sidewalk laid. It is therefore perfectly clear that the appeal is now without an object. The act which plaintiff sought to prohibit has been done. No actual controversy now exists. We can grant no relief. The events which have transpired since the appeal was lodged here make it wholly- unnecessary for us to render a decision. In all such cases the appeal should be dismissed. Tutorship of Mary Malinda Wilds, 6 Rob. 31; State vs. Rogers, 117 La. 155, 41 So. 477; In re Jones, 117 La. 106, 41 So. 431; Albert Mackie Gro. Co. vs. Pratt, 114 La. 341, 38 So. 250. See, also, Appeal and Error, 3 C. J. 357, et seq., same topic, 2 Cyc. 533.

The appeal is dimissed.


author: HIGGINS, J.

text:
    No. 11,980
    Orleans
    CRASTO v. POHLMAN
    (March 24, 1930. Opinion and Decree.)
    Gaspar R. Bosseta, of New Orleans, attorney for plaintiff, appellant.

      Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant and appellee.
   HIGGINS, J.

This is a suit by a real estate broker to recover a commission alleged to have been earned under a verbal contract of employment. Defendant denied liability on two grounds:

First. That he did not enter into any agreement with the plaintiff, and

Second. In the alternative, that the real estate broker did not effect the sale of the property.

There was judgment in favor of the defendant dismissing the suit, and plaintiff has appealed.

The record shows that the defendant owned a piece of property which he desired to sell. He placed a for sale sign on the property with a reference to his own phone and address and advertised the property for sale. He refused to sign any contract giving the real estate broker the exclusive right to sell the property. The evidence is conflicting as to whether or not the defendant entered into a contract with the plaintiff, whereby it was agreed that if the plaintiff would sell the property for the sum of $12,000, the 'defendant would pay" a commission of 4 per cent.

Conceding that there was such a contract of employment, let us pass to a consideration of the second defense, i. e., that the plaintiff did not seel the property in question. The evidence in respect to this issue shows that a young man in the employment of the plaintiff spoke to the defendant about listing the property for sale, but that defendant refused to sign a contract giving an exclusive agency to sell the property.

Plaintiff and his witness say that defendant authorized plaintiff to sell the property for $12,000 and agreed to pay him a commission of 4 per cent. Plaintiff advertised the property for sale in the daily papers of the city of New Orleans, and a Mrs. Tomes answered the ad and went with the plaintiff to view the premises. After viewing the premises she appeared impressed, but refused to sign a contract to purchase the property for $12,000, and asked for more time to consider the matter. Plaintiff made several attempts to get in touch with her the following day, but each time he was told that she was out.

In the meantime Mrs. Tomes got in touch with her own real estate broker, Miss Hill, who had been endeavoring to sell Mrs. Tomes some other property which she had listed for sale, but Mrs. Tomes informed Miss Hill that she preferred to buy the property in question. Miss Hill was brought to view the property and undertook to ascertain who was the owner. Miss Hill secured this" information from the tenant who occupied the building and went to see the defendant, who told Miss Hill that he wanted to sell the property, but would not pay her any commission on the price that was offered, i. e., $11,500. Miss Hill then placed Mrs. Tomes’ check for the sum of $1,200 as a deposit on the property. . •

The following day plaintiff went to see defendant who showed plaintiff the check and told him that the property had already been sold. Thereupon plaintiff informed defendant that Mrs. Tomes was his client, and that he had brought her to see the property and had secured her as a prospect through his advertising, and that lie was entitled to a commission. The plaintiff admits that he did not tell defendant that Mrs. Tomes was his prospect, and that he had showed her the property until after the check was accepted as a deposit. In this regard he testified as follows:

“Q. You did not tell Mr. Pohlman that Mrs. Tomes was a prospect?

‘‘A. No, I told him the following day.

“Q. And at the time you told him that he had told you it was too late and showed you the check?

“A. Yes, sir.

“Q. Between the time that you showed the house to Mrs. Tomes and the time that you talked to Mr.' Pohlman, the sale had already been made.

“A. Well, the deposit was up. The sale was not made.”

Defendant did not pay Miss Hill any commission, and the evidence shows that the only remuneration that she- received was $25, which Mrs. Tomes gave her.

We believe the case of Freeman & Freeman vs. Torre Realty & Improvement Co., 157 La. 1093, 103 So. 334, 336, is directly in point. In that case the plaintiff, a real estate broker, interested a client in rent1 ing the .defendant’s property. While the offer which plaintiff had submitted was under advisement defendant entered into a lease confected through another real estate broker with the same prospective lessee. Plaintiff then brought suit to recover the commission alleged to be due. The contract of employment of the real estate broker was not an exclusive one. There, the court said:

“In the case at bar, defendant desired to lease the building on a basis of 6 per cent of its value, or for $7,800 a year, the tenant to make all repairs and alterations necessary. This information defendant imparted to all of the brokers to whom it spoke concerning the matter, listing the property with no particular one. Its intention was manifestly to pay the commission to whichever broker obtained a tenant upon terms satisfactory to it, and this, we take it, was understood by all of them. Plaintiffs obtained no such offer. The only offers obtained by them imposed upon the owner the obligation of making all repairs and alterations necessary. Under the terms proposed by defendant, it was not called upon to accept those offers, for they were not in accord with the terms proposed by it. Defendant had done nothing to interfere with the leasing of the building by plaintiffs on the terms proposed by it, nor had it interfered in favor of Tessier & Son. Therefore, when Tessier & Son submitted an offer which more nearly approached the terms upon which defendant desired to lease than any other that had been submitted, there was no reason why defendant should not have accepted it, and have paid Tessier & Son, who had obtained the offer, the commission. Because the efforts made by plaintiffs indirectly influenced the bringing of the Metairie Ridge Nursery Gompany to terms does not entitle plaintiffs to the commission, when, as a matter of fact, the lease was obtained by other brokers. Lewis v. Manson, 132 La. 817, 61 So. 835.” See, also, Taylor vs. Martin, 109 La. 137, 33 So. 112; Bullis & Thomas vs. Calvert, 162 La. 378, 110 So. 621.

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


author: WESTERPIELD, J.

text:
    No. 11,983
    Orleans
    NOLAN v. GREAT SOUTHERN WIREBOUND BOX CO., INC.
    (March 24, 1930. Opinion and Decree.)
    Michel Provosty, U. Marinoni, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Bond, Curtis, Hall & Poster, of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

The plaintiff, an architect in the city of New Orleans, brings this suit against defendant for the sum of $1,365.34, alleged to be due him under a contract whereby he undertook to prepare certain plans and specifications for the erection of a building to be occupied by defendant as a factory for an agreed compensation of 3 3y5 per cent of the lowest bid received as a result of competitive bidding by contractors for the erection of the building; the lowest bid being $37,926.

Defendant admits having contracted with plaintiff upon the terms set forth in his petition, but resists payment upon the ground that plaintiff was employed to prepare plans for a factory not to cost in excess of $25,000, whereas the plans as prepared by plaintiff called for a building much more expensive.

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

The record indicates that certain officials" of defendant company secured the services of plaintiff, who prepared certain plans and specifications. When bids were obtained for the erection of the building, the lowest of these bids apparently being more than the defendant was able or willing to pay, the contract was not let. Subsequently and without notice to plaintiff the defendant erected a building at a cost of $19,000, and, according to the testimony offered in its behalf, without the services of an architect. When Nolan insisted upon the payment of his fee, defendant declined to pay 3 3/5 per cent upon the amount of the lowest bid received, but offered to pay 1 per cent, or $379.25, this sum being offered in response to what defendant conceived to be the customary payment when plans are rejected, and “a fair price to pay you for your services under the circumstances.”

Defendant’s liability in this case depends upon the determination of the question of fact raised by the record; that is to say, whether plaintiff’s employment was conditioned upon the obtaining of a bid as low as $25,000.

The building, which defendant erected at a cost of $19,000, did not include some of the features originally considered desirable by defendant. For example, the building was shorter, and, instead of providing for a clear floor space, unobstructed by supporting columns, which necessarily involved 'an expensive roof, a cheaper roof was in- . stalled, with supporting columns. The ‘ contractor who built the structure, Mr. .Denton, of Hattiesburg, Miss, testified that the Nolan plans and specifications had been submitted to him, though he insists they were not used. Mr. Denton gives his occupation, at the time of the trial, as “real estate business,” and, at the time he undertook the erection of the factory, as real estate business and “looking after some building.” The only plans he used, according to his statement, were some sketches drawn by Mr. Hearon, of Hattiesburg, • Miss.,’ who does not appear to have been an architect. The sketches were pencil drawings prepared from a rough outline 'furnished by Mr. Denton. In the words of the witness, “I give him a rough sketch and he drawed them out, the pencil drawing.” If no use was made of the Nolan plans and no other architect was employed by defendant, it would appear unlikely that a satisfactory building, costing $19,000, could be erected, and more unlikely that defendant would have been willing to intrust the building of its factory and the expenditure of this relatively large sum of money to a part-time contractor in the real estate business without architectural guidance, particularly since it is insisted that economical reasons prevented their going forward with Nolan. Nor is the reason for employing a Mississippi contractor given, or suggested by the record. The more prudent course would appear to have been to have continued with Nolan, to have altered his plans and specifications, so as to provide for a less expensive building, and to have asked for additional bids, until one was received within the amount which the defendant desired to expend. In any event, whether Nolan’s plans were used or not, we see no sufficient reason for refusing to pay for them. The mere fact that the plans were not used would not affect defendant’s obligation to pay plaintiff’s fee. Nolan vs. Perloff, 10 La. App. 618, 119 So. 754.

The evidence concerning the limit of $25,000 on the cost of the building is very unsatisfactory, and falls far short of proving that plaintiff’s compensation was dependent upon this" condition.

On the whole, we believe the case is with the plaintiff, and, consequently, for the reasons herein assigned, the judgment appealed from is affirmed.


text:
    No. 12,004
    Orleans
    RODICK v. MARTIN
    (March 24, 1930. Opinion and Decree.)
    F. Rivers Richardson, of New Orleans, attorneyi for plaintiff and appellant, appellee.
    Felix W. Gaudin and Milton R. DeReyna and Edna K. Gaudet, of New Orleans, attorneys for defendant and appellant, appellee.
   HIGGINS, J.

Plaintiff filed this proceeding to have the defendant’s lien for material and certain plumbing work canceled. Defendant denied that plaintiff was entitled to such relief and in reconvention claims the sum of $169.49 as the balance due, and asks for recognition of his lien.

On the main demand there was judgment in favor of the plaintiff canceling and erasing the lien, and on the reconventional demand judgment was rendered in favor of defendant and plaintiff in reconvention. From this judgment only the plaintiff on the main demand appealed. Defendant and plaintiff in reconvention has not answered the appeal.

The evidence shows that the plaintiff and the defendant entered into a written contract on October 26, 1927, under which defendant undertook to furnish the material and install certain plumbing work in four buildings to be erected by plaintiff for the sum of $1,540.00 “payments to 'be made on a basis agreed.”

It was verbally agreed that 60 per cent of the total contract price would be paid as soon as all the work would be “roughed in” and the balance when the work was completed. After the defendant had the work “roughed in” plaintiff was unable to pay him. It was then verbally agreed and confirmed by a letter on March 24, 1928, that, in consideration of the defendant completing the work on one of the houses, plaintiff would pay the defendant the sum of $600 from the sale of the house. It was also stated in the letter of March 24, 1928: “I further- agree to pay the balance due as soon as the homestead loan has been made on the other three bungalows.”

Defendant testified that there were certain other liens filed against the building, and in order to protect his interest he filed a lien against the property. In the affidavit in which defendant claimed the lien, defendant swore that “all the work having been completed in full he desires to file this lien and privilege against the above described properties for the sum of $1,540.00, all as per- contract which has been recorded in the Mortgage Office in the Parish of Orleans on February 10th, 1928, M. O. B. 1378, Folio 191.” The affidavit is dated June 14, 1928, and recorded July 16, 1928.

On August 2, 1928, it appears that a homestead loan was effected, and the plaintiff paid defendant the sum of $616, $600 as per the letter of March 24th, and $16 for material which was stolen from the property. Thereafter defendant did not do anything further to complete the work in the other three buildings. On September 1, 1928, the plaintiff, through his attorney, placed the defendant in default and had the work completed at a cost of $193 more than the original contract price.

The only two witnesses who testified in the case were the plaintiff and the defendant. Defendant admitted that the work had never been completed in the other three buildings, but says the plaintiff is to blame because he did not pay him according to their agreement and that he was afraid to complete the work for fear of losing his money. He testified that the balance due him was $169.49. The plaintiff also testified that the work was uncompleted, and, after formally placing the defendant in default, he had the plumbing work completed in the other three buildings at an additional cost of $193 over and' above the original contract price. Plaintiff denied that he owed the defendant the balance of $169.49, and contends that the sum of $616 was payment in full for the work which the defendant had performed, and itemized the amounts as follows: $385 for the house which was completed, and the balance for the work which was “roughed in’’ on the other buildings.

There is nothing in the original contract which would indicate when the payments were to be made. We therefore only have the testimony of the plaintiff and defendant as to the maturities of these payments, which they say was verbally agreed upon. The evidence satisfied us that the plaintiff was slow in paying, but on March 24, 1928, when the plaintiff agreed in writing to pay the sum of $600, and on August 2, 1928, did pay this sum, that the defendant agreed to complete the other buildings. At that time his claim was well secured by a lien and privilege, not only upon the buildings, but also upon the real estate. Act 298 of 1926. He had already collected the sum of $600 on account of his contract of $1,540; and therefore any apprehension he may have had that he was not going to be paid was not justified, but, even if justified, would not be a defense.

In the letter of September 1, 1928, by which the defendant was placed in default, he was granted' a reasonable and fair opportunity to comply with his contract, but failed to do so. Plaintiff’s evidence that he spent the additional sum of $193 over the original contract price is not rebutted by the defendant. Prom a careful reading of the record, it appears to us that the defendant and plaintiff in reconvention who had the burden of proving his case by a preponderance of the evidence did not successfully do so.

But, conceding arguendo that his claim was established, the evidence likewise shows that the plaintiif suffered a loss or damage in the sum of $193 because of the defendant’s failure to comply with the written contract. As the claim of the plaintiff is in excess of the claim of defendant and plaintiff in reconvention, the obligation would be mutually extinguished to the amount of the lesser, and therefore the plaintiff would not be indebted to the defendant.

We are therefore of the opinion that the judgment of the district court should be amended by dismissing the claim in reeonvention.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by dismissing the claim of defendant and plaintiff in reconvention, and, as thus amended, it is affirmed,


author: JANVIER, J.

text:
    No. 12,009
    Orleans
    SMITH v. N. O. PUBLIC SERVICE INC.
    (March 24, 1930. Opinion and Decree.)

      R. A. Dowling, of New Orleans, attorney for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sues for damages for personal injuries which resulted from an attack claimed to have been made on him by a street car conductor in the employ of defendant, while plaintiff was a passenger on one of defendant’s street cars. The answer is, in effect, a general denial of the material allegations, coupled with the special defense that such injuries as were sustained by the plaintiff resulted from the fact that plaintiff himself attempted to assault defendant’s conductor, and that, in order to prevent such assault, the conductor struck him with the small iron handle which operates the folding doors on the end of the car.

The evidence shows that some forty or more negro laborers, desiring to board one of defendant’s street cars, entered it very hurriedly, each in an effort to crowd his way into a seat; that the conductor attempted to prevent this, and that an altercation of minor importance took place; that the plaintiff, after forcing his way past the conductor and into the body of the car, removed one of the wire movable screens used to separate the negro portion of the car from the white portion, and was apparently intent on using this as a weapon with which to assault the conductor, when the conductor, in an effort to defend himself, removed the iron handle from the mechanism which operates the folding door, and, with this handle, struck the negro'.on the head.

We do not see that any question of law is presented. Of . course, it is conceded that a carrier of passengers is bound to protect the passengers from humiliation, from insult, from abuse, and from assaults,- but we know of no law which requires that the employees of carriers of passengers must permit themselves to be insulted, abused, and assaulted, without taking the necessary steps to protect themselves.

It thus appears that the sole question presented is whether or not plaintiff was attacked without cause, or whether he was, on the contrary, the aggressor. The evidence on this question of fact convinces us, as it did the trial judge, that, whoever may have been the aggressor in the initial unimportant altercation, that episode was terminated when plaintiff himself removed the wire screen and, by his actions, indicated his intention of assaulting the conductor. He was, therefore, the aggressor and instigator of the final scene in the affair, and, by his having initiated the proceedings, has deprived himself of a right to recover for such injuries as he may have sustained. Page vs. Hillard, 14 Orleans App. 11; Picatacci et al. vs. George Palermo, 3 La. App. 465.

It is argued that the fact that the plaintiff was tried for assault in the criminal court, and :was discharged, is conclusive proof that he could not have been the aggressor. We do n.ot so consider it. In Picatacci et al. vs. George Palermo, supra, this court held (syllabus):

“The fact that the defendant was convicted of assault and battery in' Criminal Court based upon the same incident made the basis of a suit in damages is a circumstance unfavorable to the defendant, but is not conclusive, and when the evidence adduced in the civil suit clearly preponderates in defendant’s favor, the unfavorable impression which the conviction of defendant created will be removed.”

Since only a question of fact is presented, and since the finding of the district judge, in our opinion, was manifestly correct, we see no reason to disturb the judgment rendered by him.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.


author: ODOM, J.

text:
    No. 2871
    Second Circuit
    RICHARDSON, TUTOR, v. GRAND COUNCIL OF THE UNION HOME PROTECTION SOCIETY OF LA.
    (March 24, 1930. Opinion and Decree.)
    Stewart & Stewart, of Minden, attorneys for plaintiff, appellee.
    R. F. Langston, of Minden, attorney for defendant, appellant.
   ODOM, J.

Katie Morris was a member of a benefit or insurance society known as the General Council of the Union Home Protective Society, and as such held a certificate or policy of insurance in the said society providing that at her death, if she died more than twelve months after the issuance of said certificate or policy, she should receive or that there should be paid to the beneficiaries named therein the sum • of $250. She died while in good standing and more than twelve months after the policy was issued. The beneficiary named in the policy found in the transcript is Ploretta Richardson, who, as shown by the testimony, was a granddaughter of the deceased. After the death of the said Katie Morris, Robert Richardson, the father of the said minor named as beneficiary, qualified as her tutor and there were issued to him letters of tutorship, according to law. Richardson, the tutor, made demand upon the defendant insurance society for the payment to him, as tutor, of the amount stipulated in the policy, after proofs of death had been submitted. The defendant society refused to pay the amount and this suit followed.

The defendant society was represented by counsel in the lower court, and, while the minutes recite that issue was joined by answer filed, we do not find the answer in the record and therefore do not know what specific defense was urged. However, from the testimony which is in the record, it appears that the officers of the insurance society refused to pay the amount to Richardson, the father of the beneficiary named, for the reason that the policy provided that the amount should be paid to “Larrah Yanarsby as tutor for Ploretta Richardson.”

' The officers of the society all testified that Katie Morris, the member, was in good Standing when she died and that the money to pay the beneficiary had been collected and that a check for the amount had been drawn and forwarded to the General Secretary for his approval and signature; and that when this check was received by the General Secretary, he refused to pay it for the reason that it was not made payable to the proper party. There seems to be no contention that Larrah Vanarsby was the beneficiary under the policy, the contention being that the proceeds of the policy should be paid to her because she was named as tutor for the beneficiary. This, we think, is no valid defense. The deceased had no right to appoint a tutor for her minor grandchild whose father' was then living. When the father qualified as tutor, he was fully authorized under the law to represent the minor in all matters pertaining to its property and rights, and was entitled to collect whatever was due her. Larrah Vanarsby was living in the community at the time this suit was tried and was called as a witness. So far as the record discloses, she has made no effort to have herself recognized as the proper person to receive the benefits under this certificate.

As already stated, it is not disputed, but acknowledged, that the society ow;es the amount to the beneficiary named therein. The District Court granted judgment in favor of plaintiff as prayed ' for, and defendant appealed. However, since the appeal was lodged- here, defendant has made no appearance in this court through counsel or otherwise to point out the error of which it complains. We think the judgment appealed from is amply supported by the law and the evidence, and • it is accordingly affirmed, with costs in both courts.


text:
    No. 2885
    Second Circuit
    CENTRAL LUMBER CO., INC., v. WHITTINGTON ET AL.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)

      Dimick &, Hamilton and Lee & Gilmer, of, Shreveport, attorneys for plaintiff, ap-‘ pellee. ,
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

Plaintiff, Central Lumber Company, Inc., a Corporation, institutes this action against defendants, J. W. and H. Atkins and T. P. and A. M. Whittington, to recover judgment against them in solido on a claim for material furnished and used in constructing improvements on real estate and for recognition also of a privilege on the property improved.

The cause was submitted on a statement of facts, and T. P. Whittington and J. W. and H. Atkins appeal from a judgment rendered against T. P. Whittington and A. M. Whittington for the amount claimed with recognition of a privilege on the property ,to secure the payment of the claim, and ordering the, property sold and the'1 proceeds applied to the payment of the judgment.

As stated, the claim was for material furnished and used in the construction of improvements on the property on which the privilege was recognized, and the parties concede that under the building statute (Act No. 139 of 1922) in force at the time, a privilege is granted to secure .the payment of such claims, and provision is made for the preservation of the rank of the privilege.

In the present instance, it was admitted that the material was furnished to T. P. Whittington, by the plaintiff’s assignor, for the purpose of and was used in constructing improvements on the property owned by Whittington, on which the privilege was recognized by the judgment, and 'it is riot suggested that as to T. P. Whittington, the judgment was not correct, but it was adrilitted that the property was acquired by ’-T. P.’ Whittingtori from J. W.- and H. Atkins, and that during the pendency of the present suit, the property had been sold under foreclosure proceedings against T. P. Whittington by H. Atkins on a mortgage held by him which the parties appear to concede was recorded prior to the lien, and it is urged that the privilege was not properly registered against the property and did not affect the rights of the holder of the mortgage or the purchaser at the foreclosure sale, who appears as of counsel for appellants.

The material having been furnished to the owner of the property and used by him in constructing the improvements, section 11 of the statute provides that the privilege may be preserved in such cases either by recording a certified copy of the building permit, or affidavit of claim or any other writing evidencing the claim, on the mortgage records of the parish in which the work is constructed. In the present instance, it was admitted that the assignor of plaintiff filed a written memoranda of the amount of his claim, with an affidavit attached, on the mortgage records, which reads in part as follows:

“Shreveport, La., June 18, 1925.

' ’ “Lien filed against J. W. and H. Atkins and T. P. and' A. M. Whittington on E% Lot 49 and W% Lot 48 West Gladstone Subdivision of the city of Shreveport, Caddo Parish, State of Louisiana by R. Webb (assignor of plaintiff Company).

“Before me, the undersigned authority, personally appeared R. Webb, who being duly sworn deposes and says: That * * * the above account for $380.96, is just and correct, due and unpaid, that there are no legal claims or offsets against it; the same is for labor and material furnished in the construction of buildings upon the following property of J. W. and Herbert Atkins, owners, and T. P. and A. M. Whittington, contractors, (description of property) and 'that said deponent hereby claims the privilege granted by law, etc. * *”

Section 11 of the statute does not state what shall be the form of the statement or affidavit, or what it shall contain. There is, however, not any objection raised as to the sufficiency of the instrument recorded other than that J. W. and H. Atkins were named as the owners of the property on which the lien was claimed, and not T. P. Whittington, who was admitted to have been the owner at the time the lien was filed, and it is urged that the recordation of the instrument was insufficient to preserve the lien, although it was conceded that the ihdices of the mortgage records showed that all of the persons named, J. W. Atkins, H. Atkins, and T. P. Whittington and A. M. Whittington, were listed as mortgagors and lienors and that it was the custom of the recorder of mortgages to list all persons named in such instruments, except the claimant, as mortgagors or lienors.

The indices are not part of the 'record (Agurs vs. Belcher, 111 La. 378, 35 So. 607, 100 Am. St. Rep. 485), and while we are of the opinion that the custom of the recorder of mortgages in indexing the records does not atfect the question or the legal effect of the instrument as recorded, or sufficiency of the registration as notice to third (persons, we do not think that, when the name of the owner of the property to be affected is stated in the instrument recorded, it is essential that he should be designated as such, or that when the name of the owner of the property to be affected is stated in the instrument, a reference to his occupation or profession would render the notice resulting from the registry of the instrument insufficient.

In Robinson-Slagle Lumber Co. vs. Rudy et al., 156 La. 179, 100 So. 296, the statute considered was more specific as to the substance of the instrument to he recorded than the1 statute considered here, and although the statute considered in the cited case stated that that instrument filed for record should set forth the name of the owner, it was not held that where the name of the owner was stated, it was essential that he should be designated as such.

The instrument recorded in the present instance, asserted an indebtedness. against T. P. Whittington for material used in improving certain described property which was owned by T. P. Whittington, and on which the law granted a privilege for the Security of the debt, and we are of the opinion that anyone dealing with Whittington with reference to the property and reading the records and the .instrument recorded would be placed on notice that a lien and privilege was claimed on the property, and the object and purpose of the registry being to give notice, the registry of the instrument was sufficient.

Appellants also filed in this court a plea of estoppel in which they pleaded that plaintiff, having alleged that the property belonged to J. W. and H. Atkins, was estopped to assert the privilege against the property of T. P. Whittington.

While counsel do not abandon the plea, there is not any authority cited to support it, and the theory on which it is based is not stated other than that to allow the privilege would be in conflict with plaintiff’s allegations.

It is not suggested that the plaintiff’s prayer and the facts admitted were not sufficient to warrant the judgment against Whittington, with recognition of a privilege on his property, and the admitted facts and the pleadings are binding on the parties.

Counsel for appellants also argued that H. Atkins had a vendor’s lien on the property which was recorded prior to the instrument claiming the lien, but, if so, it was not pleaded, and we do not find that such, fact was admitted or conceded by plaintiff, and we have not considered what would have been the effect had such fact been established.


text:
    No. 3023
    Second Circuit
    VAN OS v. GRAY
    (March 24, 1930. Opinion and Decree.)

      D. B. Samuel, Robert Roberts, Jr., of Shreveport, and 0. M. Roberts, of Minden, attorneys for plaintiff, appellant.
    A. S. Drew, of Minden, attorney for defendant, appellee.
   ODOM, J.

Plaintiff is an architect and brings this suit against defendant to collect fees due for making plans and specifications for the building of a residence. He alleges that he made the plans under defendant’s instructions, and that while there was no agreement as to the amount of compensation which he should receive, the amount sued for is reasonable and customary for such work.

The defense is that there was never an unconditional employment of plaintiff and no contract entered into between the parties; hence nothing due.

The district court rejected plaintiff’s demands, and he appealed.

The defendant, who lives at Minden, contemplated the erection of a residence for himself. Plaintiff, on learning this, saw defendant, by chance it seems, and inquired of defendant whether he needed the services of an architect, and was told that he probably would, and the two discussed the matter of plans. Defendant went into details as to the size and kind of residence he wanted, but made it plain to plaintiff that he would not pay a price exceeding $14,000 for a residence. Plain-, tiff stated to defendant that the residence he had described could not be built for the amount stipulated. It was understood however, that, if the structure which defendant wanted could be built for that price, or less, plaintiff might proceed with the drawings, specifications, etc. But defendant did not instruct plaintiff to proceed with the plans, and it is clear enough that there was no contract of employment entered into at that time. Plaintiff testified that defendant told him not once, ■but on numerous occasions, that he would not build at a cost exceeding $14,000, and further said that he 'told defendant at the first conference that such a structure as he wanted could not be built for that price. As further evidence that plaintiff did not consider ‘that he was employed, he did not proceed with his work, but returned to Shreveport and interviewed a certain building contractor as to what a residence described by defendant would cost, and was told that it would cost about what defendant was willing to pay.

On October 30th, plaintiff wrote defendant that he had “gone over your proposed scheme” with a contractor, and “he assures me that we can build your house of frame construction for around $14,000.00, if we don’t do too much expensive interior finish in it and if we do not attempt doing too much of the unusual on the outside.” He closed the letter with this sentence: “Awaiting your pleasure in this matter, I am, your very truly.”

Admittedly, defendant made no reply to this letter. But plaintiff, apparently upon the assurance of the contractor that the house could be built for $14,000, then drew plans and specifications and advertised for bids, the lowest received being $19,000, or $5,000 more than defendant was willing to pay, and the bid was rejected. Defendant later on employed a contractor to build his residence at a cost of less than $14,000 but did not use plaintiff’s plans and specifications, which, it seems, were never delivered.

Counsel for plaintiff in brief say that he did. the work and should recover, "unless there was something in his agreement with Mr. Gray which made it a condition of his employment that the cost of the work to be done.be brought down to fourteen thousand dollars.” Further on in their brief, counsel concede that the record warrants the holding that the “employment” was conditional, and we add that under the testimony any other holding would be wholly unwarranted. Hence it follows that, according to counsel’s own argument, plaintiff’s suit must fall, unless, as they suggest, the original agreement was abrogated by subsequent agreement, express or implied.

The record is clear that defendant never at any time receded from his original statement to plaintiff as to the cost of the building, nor does it warrant the implication that he intended to do so. After plaintiff wrote defendant on October 30th that he had been advised that the residence could be built at or within the specified amount, there were conferences between the two in which defendant suggested that he might be able to get special prices on lumber. Eut that was with the idea of bringing the total cost within the specified limit. Plaintiff testified that the plans were materially enlarged by additions suggested by defendant. As defendant emphatically disputed plaintiff’s statement to this effect, we hold, under the principle that the burden is upon a plaintiff to establish special pleas, that plaintiff failed on that point.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.

DREW, J., recused.


text:
    No. 12,079
    Orleans
    ROUSSEL v. GUITERREZ
    (March 24, 1930. Opinion and Decree.)
    Beard & O’Keefe and A. R. Christovich, of New Orleans, attornéys for plaintiff, appellant.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This matter comes before us on motion to dismiss the appeal because of the fact that the transcript was not lodged in the office of the clerk until more than three days after the return day.

The record shows that the return day fixed was June 4, 1929. The record was filed in this court on June 10, 1929.

Though we do not see that it has any material bearing, we find in the record a certificate of the deputy clerk of the civil district court showing that the transcript was prepared and ready for filing some time before the return day. Therefore the delay could not have been chargeable to the clerk of the district court.

As a result of the adoption of Act 92 of .1900, which is applicable in the parishes other than Orleans, and since the adoption of Act 106 of 1908, which applies throughout the state, transcripts of appeal must be filed on or before the return day, or within three calendar days thereafter, unless an extension has been granted. Bourgh vs. Hester, 1 La. App. 152; Causey vs. Central Const. Co., 2 La. App. 637; Day vs. St. Joe Brick Works, 4 La. App. 553; Rooney vs. Checker Cab Co., 4 La. App. 173. No extension of time was asked for or granted, so that the record should have been filed not later than three days after the return day.

When this matter was submitted, there arose a discussion as to whether or not there had been an agreement by the attorneys that the transcript might be filed after the expiration of the three days of grace. Even if there had been such an agreement, it would have been the duty of this court to dismiss the appeal, because, where a transcript is lodged too late, the court has no jurisdiction to do anything other than dismiss the appeal. Atlantic Paint Co. vs. Merkel, No. 8869, Orleans Appeal, (unreported), see Louisiana and Southern Digest; Collins Piano Co. vs. Cospelich, 7 La. App. 277.

For these reasons it is ordered that the appeal herein be, and it is, dismissed, at the cost of appellant.


text:
    No. 13,137
    Orleans
    HAYES v. CARLTON
    (April 7, 1930. Opinion and Decree.)
    George Piazza, of New Orleans, attorney for plaintiff, appellee.
    George B. Smart and George Dewey Smart, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, the owner, leased in writing to defendant certain premises for $45 per month. To represent the indebtedness notes were executed by deféndant. The lease did not expire until the end of September but during tlie latter part of February, defendant, having received information that he was about to lose his position in New Orleans, decided to dispose of some of his furniture and to move away from the city. He claims that he secured from plaintiff, through her attorney in fact, permission to advertise for sale and to sell the articles of furniture in question and he also claims that he informed the said agent or attorney in fact that he was unable to pay the full amount of the rent due on March 1st, to-wit, $45. It .is his contention that he secured from the said agent permission to pay only $40 on the note then due which would be considered as full payment thereof and that it was further agreed that the rent to become due in the future should be at the rate of $40 per month instead of $45 as represented by the notes.

Plaintiff admits that her agent agreed to accept $40 on account of the note due on March 1st, but contends that it was not understood . that that would be considered as full payment. She also maintains that neither she nor her agent agreed that the rent for the future months should be reduced to $40 per month and that she did not agree that the furniture could be sold or removed from the premises.

There were negotiations which create some doubt as to whether or not it was understood that the rent for the future should be reduced and which also leaves some doubt as to whether or not it was understood that a certain sum, to-wit, $80, and defendant’s refrigerator would be accepted by plaintiff in full settlement for the balance of the rent whether due or to become due. Whether such a settlement was agreed to is a question of fact and the trial court held with the plaintiff. We are unable to say that thé evidence does not justify his finding that such an agreement had not been made. It is entirely possible that the defendant, in good faith, understood that such a settlement had been agreed to but it is equally possible that plaintiff and her agent in good faith had no such understanding of the various conversations. Under these circumstances we find ourselves unable to adopt the view that the finding of the trial court was manifestly erroneous. We are, therefore, unable to hold that the writ of provisional seizure was prayed for on insufficient grounds. ’ Of course, under the view which we take the reeonventional demand for damages cannot be allowed.

It necessarily follows that the judgment appealed from should be affirmed.


author: WESTERFIELD, J.

text:
    No. 13,257
    Orleans
    GOLDSTEIN v. STONE
    (March 24, 1930. Opinion and Decree.)

      Herman L. Midlo, of New Orleans, attorney for plaintiff, appellee.
    William J. Hopper, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlord against its tenant for $105, the amount of three rent notes. Defendant admitted the execution of the notes as having been given in consideration of a monthly rental under a lease beginning October 1, 1928, and terminating September 30, 1929, covering the premises No. 1713 Short street in the city of New Orleans, and admits his failure to pay the three notes sued on, given for rent for the month of July, August and September. In explanation of his failure to pay these notes he avers that the premises were uninhabitable, because of the failure of plaintiff to repair the roof, which constantly leaked, and of which fact he repeatedly notified plaintiff, who often promised to make repairs and as often failed to do so. He avers that the water from the leaking roof damaged his furniture and that, being unable to obtain any relief from his landlord, he vacated the premises on July 17, 1929, and thereafter refused to pay any more rent.

The trial court found that there had been a voluntary remission of rent to the extent of $2.50 per month, and held the defendant liable for $97.50, the full amount due under the lease, less the remission of $2.50 per month. Defendant has appealed.

■ The evidence convinces us that the roof leaked very badly, and that the defendant made repeated efforts to have the plaintiff repair it without avail. In fact, the plaintiff admits that the roof leaked, but contends that, as a matter of law, the defendant, by reason of the provision of article 2694 of the Civil Code, should have made the necessary repairs to the roof and' deducted the cost thereof from his rent, and that, because of his failure to do so, he cannot complain. The article referred to reads as follows:

“If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were .indispensable, and that the price which he has paid was just and reasonable.”

We do not believe that a tenant is compelled to undertake to keep his roof in repair. The article referred to gives him the privilege of making necessary repairs, but he is under no obligation to do so. In this particular case the landlord, under the express terms of its lease, had absolved itself from all repairs due lessee, “except such as may be specially noted herein, or needed to the roof,” but, independent of this provision in the lease, article 2692, R. C. C. declares that:

“The lessor is bound from the very nature of the contract, and without any clause to that effect:

“1. To deliver the thing leased to the lessee.

“2. To maintain the thing in a condition such as to serve for the use for which it is hired.

“3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.”

This article has been held to compel the lessor to maintain the leased premises in a moral, as well as physical, condition, and to insure the lessee morál, as well as physical, peace. Keenan vs. Flanigan, No. 8578, Court of Appeal, Parish of Orleans, unreported, see Louisiana and Southern Digest, affirmed in Keenan vs. Flanigan, 157 La. 750, 103 So. 30.

We are of opinion that the lessee was justified in abrogating his contract of lease, and that the lessor cannot recover. However, we find that the lessee did not leave the premises until the 17th day of July and the lease cannot be considered as abrogated prior to that time. Plaintiff should have judgment for seventeen days’ rent at the rate of $32.50 per month, or $18.42.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff from $97.50 to $18.42, and, as thus amended, it is affirmed.


author: JANVIER,. ■ J.

text:
    No. 13,266
    Orleans
    WILSON v. LAGASSE ET AL.
    (March 24, 1930. Opinion and Decree.)
    Cahn & Cahn, of New Orleans, attorneys for plaintiff, appellee., ■' .
    Paul W. Maloney, of New Orleans, attorney for defendants, appellants.
   JANVIER,. ■ J.

Plaintiff, holding trade acceptances of Paul Lagasse totaling $125, in an endeavor to collect thereon, brings this suit against Lagasse and also against Paul Lagasse,. Inc., a corporation to which it is alleged Lagasse transferred substantially all of his assets in an effort to prevent execution against him individually.

One Louis P. Chapman was also made defendant below under the allegation that he had been a partner of Lagasse prior to incorporation and was therefore liable. We are not concerned now, however, with the question of Chapman’s liability, as the judgment below dismissed the suit as to him as in case of nonsuit, and as no appeal was taken from that part of the judgment.

It is alleged that the incorporation of Paul Lagasse, Inc., and the transfer to that corporation of all or substantially all of the assets of Paul Lagasse was done for the purpose of making execution against Paul Lagasse himself impossible. The record shows that Lagasse had been in the lumber and millwork business, that he had certain contracts on hand at the time of the incorporation, and that he had certain open accounts which were due him. So far as we can determine from the record, everything of value connected with his business was transferred to che new corporation, with the result that the creditors of Lagasse were left in the lurch, and, among those creditors, we find the present plaintiff. The corporation was organized by Lagasse, his daughter, and his son-in-law. The incorporation was arranged just prior to the maturity of certain obligations of Lagasse, and there are many other circumstances shown in the record which convince us that the incorporation was a mere sham and a delusion, and was resorted to solely for the purpose of preventing execution by Wilson and other creditors, and we cannot lend the assistance of this court to, a scheme of this kind. In Taylor Co. vs. Gulf Land & Lumber Co., 119 La. 426, 44 So. 187, 189, the Supreme Court said:

“ ‘A reorganization may take place by the formation of a new corporation and the transfer to it of the assets of the old corporation in consideration of the issue of stock of the new company to shareholders of the old; but the rights of creditors cannot be prejudiced thereby.’ 10 Cyc. 286.”

We find the same doctrine announced in Wolff vs. Shreveport Gas, E. L. & P. Co. et al., 138 La. 743, 70 So. 789, 794, L. R. A. 1916D, 1138, in which Mr. Justice Monroe had the following to say:

“According to the consensus of judicial opinion in this country, a newly organized corporation is liable for the debts of an old one, to the business and property of which it has succeeded, where it is shown that the succession was the result of a transaction entered into in fraud of the creditors of the old corporation, or that the circumstances attending the creation of the new, and its succession to the business and property of the old, were of such a character as to warrant the finding that the new, is merely a continuation of the old,,, corporation. The courts are also agreed that there can be no consolidation of corporations, and no merger of one into another, and particularly of a domestic into a foreign corporation, without legislative authority, general or specific, and the consent of all of the shareholders; that the properties of a corporation constitute a trust fund for the payment of its debts; and that, where there has been a misappropriation of such funds, or (according to the better opinion, as we think) the corporation has been divested thereof by consolidation, merger, reorganization, or ‘reincarnation,’ not only may the fund be followed, by the aid of equity, for the benefit of the creditor, but he may recover, in an action at law, against the corporation which has taken over such fund, with the business of his debtor.

“There is not the same concurrence of opinion upon the question whether, or under what circumstance, the mere absorption by one corporation of the property and business of another operates as a merger of such other corporation, or subjects the property so absorbed to the claims of its creditors, or the absorbing corporation to liability for such claims. In the case of a sale, in good faith, of the property and business of a strictly private corporation, duly authorized by its shareholders, to a- third person, for an adequate consideration, the property would no doubt pass free of incumbrance, and the creditors would , be relegated to the proceeds in the hands of the debtor corporation; but, where the purchaser is a new corporation, composed of the same shareholders as the old, the transaction, in no manner, affects the rights of the creditors of the old corporation, who may proceed for the recovery of the amounts due them against either corporation, or both; and that, whether the claims be founded in contract or tort, since the real debtor, though represented by two fc.orporations instead of one, remains the same, in contemplation of law.”

We are unable to see that a corporation which purchases from an individual all or substantially all ‘of his assets, in an effort to prevent the former creditors of the individual from collecting their debts, is in any better situation than is a corporation which purchases all of the assets of a former corporation. In re W. J. Marshall Co. (D. C.) 3 F. (2d) 192; In re Stone-Moore-West Co. (D. C.) 292 F. 1004; In re C. W. Aschenbach Co. (C. C. A.) 174 F. 396; Du Vivier & Co. vs. Gallice (C. C. A.) 149 F. 118; In re A. G. Crosby Co. (D. C.) 199 F. 344; Andres vs. Morgan, 62 Ohio St. 236, 56 N. E. 875, 78 Am. St. Rep. 712; Ziemer vs. C. G. Bretting Mfg. Co., 147 Wis. 252, 133 N. W. 139, Ann. Cas. 1912D, 1275.

The judgment in favor of plaintiff and against Paul Lagasse and Paul Lagasse, Inc., was correct, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed.


text:
    No. 11,914
    Orleans
    THE TIMES-PICAYUNE PUBLISHING CO. v. JACOBS
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    Sumpter D. Marts, of New Orleans, attorney for plaintiff, appellee.
    Clarence F. Favret, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant is engaged in business in New Orleans as a real estate agent. Plaintiff sues for $1,884.32, hs the balance due on an open account covering various real estate advertisements published for account of defendant from August 7, 1927, to and including July 5, 1928. Attached to plaintiff’s petition is a detailed account showing the amount of each item and outlining the nature of each advertisement.

In answer to this petition, defendant admitted that advertisements had, from time to time, been published for his account, but he denied the correctness of the itemized statement. It should be noted that defendant did not specify what items on the account were incorrect, hut relied on what seems to be a general denial, which, under the Pleadings and Practice Act of 1914, to-wit: Act No. 300, is no longer permitted in this state.

In addition to the above referred to averments of the answer, defendant alleged that “he has made, further and other payments to plaintiff, which are not shown' on the itemized statement attached to the said petition.”

At the trial, defendant, for some reason best known to himself, did not appear.

The trial judge refused to permit the ■introduction of any evidence with reference to the additional credits to which defendant claims he was entitled, and his ruling on this point was manifestly correct. The allegation that credits are due is an allegation of payment. “The burden of proof is upon the defendant who answers that he is entitled to certain credits.” Egan vs. Willard (1919), see Louisiana and Southern Digest, Tessier Orleans App. Dig. 124. Payment is a special defense and must be pleaded with the same particularity as is required of a petitioner. Since defendant did not allege any particular payment, evidence offered in support of the allegation of payment was properly rejected.

Plaintiff offered abundant proof of the correctness of the account, and in the absence of any denial by defendant that the various items composing the account were actually due, it is manifest that the judgment appealed from is correct and should be affirmed.

Defendant’s contention that the order slips bearing defendant’s signature should have been produced by plaintiff is without merit. Under the allegation of the answer plaintiff was not put on notice that there was any claim that any of the signatures were not genuine. If there was any reason for the production of the slips, defendant’s request for a subpoena duces tecum came too late. It should have been filed sufficiently in advance to permit of compliance therewith without causing a delay in the trial.

Plaintiff asks that we award damages for frivolous appeal in accordance with Code Prac., art. 907. We cannot find that any serious question is presented by the appeal, and we are therefore of the opinion that plaintiff’s prayer in this regard should be granted.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by increasing the amount thereof by 10 per cent, and, as thus amended, affirmed.


text:
    No. 11,773
    Orleans
    DI FRANCO v. ASCANI
    (March 10, 1930. Opinion and Decree.)

      Borah, Himel & Bloch, of New Orleans, attorneys for plaintiff, app.ellee.
    U. Marinoni, Jr., and Michel Provosty, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for damages for the alleged breach of a written building contract entered into between plaintiff, defendant, and the Security Building & Loan Association on March 4r 1925. Defendant denied liability, and filed a reconventional demand for extra work.

There was judgment in favor of plaintiff for the sum of $700 on the main demand, and defendant’s reconventional demand was dismissed. The defendant has appealed.

The petition alleges that on March 4, 1925, a written building contract was entered into between plaintiff as owner, defendant as contractor, and the Security Building & Loan Association, which assumed no responsibility, being merely a party to the contract to pay for the work performed; that the defendant undertook and agreed to erect and finish in “a perfect and workmanlike manner” and deliver to plaintiff a two-story double dwelling on South Rocheblave street, this city, for the sum of $14,000; that the building was, to be erected and constructed in accordance with the plans and specifications which were made part of the contract; that on or about the ________ day of November, 1925, plaintiff was induced to accept the building with defendant’s assurance that same was built in accordance with the contract, plans, and specifications, but it later developed that the said representations were false and untrue; “that the roof which was guaranteed by the contract, plans and specifications for a period of three years, was defective and leaked badly with each rain, as the result of which the ceilings of the said house were badly damaged”; that plaintiff verbally demanded that defendant repair the roof and the damage to the ceilings caused by the leaks, and on August 11, 1926, formally placed the defendant in default for not doing so; that the plaintiff repaired the said roof at a cost of $110 and the damage to the ceilings at a cost of $66; that the paving done under the contract was poor in workmanship and inferior in the material furnished, and, although defendant’s attention was called to the defects, lie failed to remedy thorn, as a result of which holes developed in the paving so that it became apparent that the work would have to be done over at a minimum cost of $100; that the painting on the exterior of the building was improperly done; that the material used in mixing the paint was of an inferior quality, and improperly mixed, causing the paint to crumble and peel off the building, with the result that plaintiff will be put to the expense of $350 to have the house repainted in the manner provided by the contract, plans, and specifications; that the work of placing the roof on the building, painting the house, and the paving were not done in accordance' with the contract, plans and specifications, and that plaintiff is entitled to recover the alleged damages on account of the' defendant’s breach of the contract; and that subsequent to the execution of the contract, it was verbally agreed between plaintiff and defendant that 120 feet of fencing called for by the contract would not be erected, and plaintiff would be allowed a credit of $1 per linear foot, or $120. Plaintiff iprays for judgment against the defendant in the sum of $746, with legal interest from judicial demand until paid.

Defendant denied liability, averring that the contract, plans, and specifications were carried out, and that, if there were any defects in the building, they were the result of imperfections in the plans and specT ifications; that, if there were any leaks in the roof, they were due to the fact that the foundation of the building was not sufficient, which caused it to sink, and for which defendant would not be responsible; defendant reconvenes for the sum of $150 for extra work alleged to be due under a separate verbal contract between himself and plaintiff.

The contract, plans, and specifications provided that the contractor should erect and finish “in a perfect and workmanlike manner and deliver to the said party of the first part free from all encumbrances and liens a two-story dwelling. * * * Said work to be done in strict accordance with the drawings and specifications.”

The specifications further provided that the contractor should furnish all material where not otherwise specified, “and shall lay out the work and be responsible for its correctness1.” The' specifications contain a further provision that “all material employed in the construction of the said building, unless otherwise specified, to be of the best of their several kinds. All labor is to be performed in the best and most acceptable manner, by skilled workmen.”

The house, under the terms of the contract, was to have been completed and delivered by July 9, 1925, but was not delivered ‘ until the middle of November, 1925, when plaintiff took possession of the building and recorded the formal acceptance in the mortgage office, as required by the building law of this state.

Defendant contends that the plaintiff, having accepted and occupied the building after the architect, Baehr, approved the building, is estopped from claiming damages, unless he was induced to accept the building through fraud. It appears that Mr. Baehr was the architect representing the Security Building & Loan Association which had loaned the plaintiff the money to pay for the construction of the building, having taken a mortgage upon the premises to secure the loan. The architect directly represented the homestead and not plaintiff, the owner of the property. Recording the formal written acceptance in the mortgage office was done simply in compliance with the provisions of the building laws of the state, so that the owner would be protected against any liens that might be recorded against the property.

It further appears that the complaints concern latent defects which were not discovered until the building was accepted and occupied. For instance, the reason for the leaks in the roof was due to the fact that the slates were not properly lapped, the specifications calling for a three-inch lap or cover, whereas they were only lapped two and two and one-half inches. The fact that the paint would peel and dry out so as to become powdery like whitewash could not be discovered until ■a reasonable time after the building had been painted. All of the defects complained of evidenced themselves within six months after the building was occupied. The roof leaked so badly that plaintiff was compelled to have a new one placed on the building within two years after the house was built. The evidence convinces us that the defendant contractor knew that he had failed to comply with the contract, plans, and specifications, in the respects complained of in this suit, at the time he tendered *the building to the plaintiff and plaintiff did not know of them.

By the acceptance and occupancy of the building the plaintiff did not waive any rights which he had against defendant for breach of contract, when the breach at the time of the acceptance of the building could not with reasonable care and diligence be discovered, due to the fact that the vices were latent defects.

In the case of Police Jury vs. Johnson, 111 La. 279, 35 So. 550, 552, the Supreme Court said:

“We adhere to the decision cited by learned counsel in which it was held that a person who performs a contract unskilfully on the premises of a person who has contracted for a first-class outfit, or a person who could not do otherwise than accept the situation, does not thereby waive damages. Schwartz Case, 34 La. Ann. 214.”

In the case of Leinhard vs. Meyer, 11 La. App. 328, 123 So. 130, this court held:

“Where it was intention of parties to building contract that building should be tenantable and constructed in workmanlike manner, and of good material such as to resist usual rains in locality, and contractor failed to fulfill obligations, resulting in leaks around windows and walls, contractor and surety were liable under contract and bond for damages which owner sustained. * * *”

See, also, R. C. C. arts. 2762 and 2769; Levy vs. Schwartz, 34 La. Ann. 209; Borrosky vs. Hill, 1 La. App. 431; Emdon vs. Olympia Roofing Co., 11 La. App. 614, 124 So. 615.

On the merits of the case, primarily questions of fact are involved. The record is voluminous and the evidence conflicting as to the alleged damages, but the district judge, after hearing the testimony of the witnesses, visited the building in question, and then rendered judgment in. favor of plaintiff. The record shows that the evidence abundantly supports the findings of the district judge, and therefore his judgment in favor of plaintiff on the main demand will not be disturbed.

When the plaintiff in reconvention sought to introduce proof in support of his reconventional demand, defendant in reconvention objected to the evidence on the ground that the contract provided that there would be no charge for extra work, unless written estimates were submitted and agreed upon in writing before the work was commenced, and, as the petition in reconvention alleged that the extra work was done under a verbal agreement, but did not allege that the provision in the contract requiring that extra work he agreed upon in writing was waived, the evidence was therefore inadmissible. This objection was referred to the merits.

Conceding that the evidence was admissible, the most favorable view we would take of the matter as far as plaintiff in reconvention is concerned, after a careful reading of the record, we are unable to say that the judge a quo was manifestly in error in dismissing the reconventional demand, only issues of fact being involved.

In the case of Stringfellow vs. Nowlin Bros., 157 La. 683, 102 So. 869, 870, the Supreme Court said:

“One who desires relief by means of a reconventional demand must institute such a demand in court. His position, in reconvening, becomes that of plaintiff. So much is this the case that, although the demand be inserted in the answer, it is not considered as a part of the answer, but as a petition setting forth a distinct cause of action. Powell v. Graves, 14 La. Ann. 873. It is therefore subject to all the rules of pleading applicable to plaintiff, and must be set forth with the same clearness and precision as if alleged in a direct action.”

The court further said:

_ “It is clear, therefore, that the institution of a reconventional demand implies the existence of a prior suit or main demand in court. But, while the method of trial must be governed by the conditions of the main action, the reconventional demand enjoys the status of an independent suit, in which the burden of proof is upon the reconvener to establish the facts alleged.”

We do not find that the plaintiff in re-convention proved his claim by a preponderance of the evidence.

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


text:
    No. 13,130
    Orleans
    BUSTER & SON v. LANGHOF
    (December 16, 1929. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    Titche, Kiam & Titche, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This matter comes before us on appeal from a judgment of the First City Court of New Orleans, rendered against defendant after the overruling of liis plea to the jurisdiction ratione personae.

Defendant was sued as a resident of the City of New Orleans. In his plea to the jurisdiction he alleged that he was a “resident and voter in the Parish of Jefferson.”

The only evidence on the question of fact involved was given by defendant himself. He testified that for more than five years he had lived in the Parish of Jefferson but had conducted business in the City of New Orleans. There is no doubt that under the law of this state the general rule is that a resident of the state must be sued in the parish 'in which he resides and our attention has been directed to no decisions to the contrary. Nor are we told of any exception which is applicable to the facts of this case.

Counsel for plaintiff contends, however, that inasmuch as he was acting in good faith in bringing suit in this parish and inasmuch as on the merits no serious defense was, set up, it .would work a hardship o,n his client to have to pay the costs of court. This may be true, but in order to so hold, even if we had the right to do so, we would have to investigate the facts which, since we believe that the plea to the jurisdiction should have been sustained, are not properly before us.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed and that there now be judgment in favor of defendant and against plaintiff dismissing this suit.


text:
    No. 13,130
    Orleans
    E. R. BUSTER & SON v. LANGHOF
    (March 24, 1930. Opinion and Decree.)
    Titche, Kiam & Titche, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

In his application for a rehearing, counsel for plaintiff and appellee, for the first time directs our attention to Act 179 of 1918, Section 1, Subd. 12 of which reads as follows:

“Any person engaged in commercial business may be sued and served in all matters connected with said business in the parish where the business is carried on, even though he may have his legal domicile elsewhere, or at his legal domicile, as desired by the party controlling the suit or process; and for the purpose of service upon commercial and ordinary partnerships, they shall be considered as having their domicile where the partnership carries on its business, notwithstanding all or some of the partners may reside elsewhere, and in any of said cases, service may be made at the legal domicile of that of the members of the partnership, or of any one of them.”

It is obvious that our former decree maintaining the plea to the jurisdiction was erroneous.

There appears to have been no serious defense on the merits of the case, consequently plaintiff should have judgment as prayed for.

It is therefore ordered, adjudged and decreed that our former decree in this case be vacated and set aside and it is now ordered that the judgment appealed from be affirmed.


text:
    No. 11,871
    Orleans
    WEIL v. WEIL
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    L. J. Lautenschlaeger, of New Orleans, attorney for plaintiff, appellee.
    Weiss, Yarutt & Stich, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Defendant, sued on a promissory note in the sum of $600, after admitting his signature, made the following defense:

“That plaintiff is his uncle; that some time ago he gave plaintiff the promissory note described herein; that at its maturity defendant offered to pay same, but plaintiff stated that it was not necessary for him to pay the same as he, plaintiff, had decided to make defendant a manual gift of said promissory note, whereupon the said plaintiff handed the said note to defendant, and shortly after, upon the suggestion by plaintiff that defendant permit plaintiff to keep the custody of said note for defendant, defendant returned the same to plaintiff to hold for him; that since the donation of said note to defendant as aforesaid, plaintiff has never once demanded payment, never pretended to have any claim against defendant, and in fact always informed defendant that the note had been destroyed by him because there was no reason for keeping it, inasmuch as he had made defendant a donation of it.”

On the trial of the case defendant attempted to prove, by oral evidence, that the note sued on had been the subject of a manual gift and, upon objection of opposing counsel, to the effect that such do-nations could only be made by authentic act, the evidence was excluded; whereupon the counsel for defendant noted an exception to the ruling of the court, giving as his reason for the admissibility of the evidence that “between the maker and the payee it can be done without a notarial act.” His evidence being excluded, defendant failed to sustain the averments of his answer and judgment followed in favor of plaintiff as prayed for. Defendant has appealed.

Civil Code, art. 1536, reads as follows:

“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”

In the Succession of De Pouilly, 22 La. Ann. 97, it was held that a donation inter vivos of a promissory note must be passed before a notary public and two witnesses, under penalty of nullity. The De Pouilly case, which was decided in 1870, has never been overruled, and, though there is a statement in the brief to the effect that its authority has been affected by Act 64 of 1904 (Negotiable Instrument Law), counsel, in arguing on this point, was frank enough to concede its weakness.

But it is contended .in this court that, if the defense, to the effect that the note sued on was the subject of a manual gift, must fail for want of authority, defendant is nevertheless absolved from responsibility, because “since the plaintiff was. the payee, and defendant the maker, surrender by manual gift by the former to the latter constituted a remission of the debt under article 2201, R. C. C., and Hicks vs. Hicks, 145 La. 466, 82 So. 415, the latter holding that the surrender of notes by a creditor to his debtor operates as a remission of the debt under article 2201 and no formality is required.” Plaintiff’s counsel objects to the consideration of this latter defense upon the ground that it was not set up in the answer and not argued below. In reply to this objection it is said that, though no reference is made in the answer to remission eo nomine, nevertheless, the facts essential to support such plea have been averred and that he is under no obligation to plead conclusions of law that are to be drawn from the facts as set up. La. Digest, vol. 6, verbo Pleading, p. 2.

There is no doubt in our mind that the defense of remission of the debt has not been pleaded, por, so far as the record indicates, mentioned below. The purpose of the testimony which was excluded and the reason for reserving a bill, as given by counsel himself, was to substantiate the averments of the answer to the effect that the promissory note sued on had been the subject of a manual gift. We do not believe that defendant is entitled to be heard in this court for the first time to urge the defense of remission. The object of pleading is to put the other party on his guard. Rabun vs. Cage, 23 La. Ann. 675. The pleadings should be so drawn as to advise the parties of the issue and enable them to introduce such evidence as may be available in support of their respective contentions as developed by the pleadings. Western Assur. Co. vs. Uhlhorn, 41 La. Ann. 385, 6 So. 485. In the case of Shalley vs. N. O. Public Service, Inc., et al., 159 La. 519, 105 So. 606, a case in which the defendant Sewerage & Water Board raised for the first time, in the application to the Supreme Court for review of an opinion of this court, the defense to the effect that it was not liable for tort growing out of the negligence of its employees, such liability, if any, being in the city of New Orleans, the court held that it would not consider that defense because raised too late, the only defense made in the lower court (1 La. App. 770) being the want of negligence on the part of the Board.

It is true that a pleader need not allege conclusions of law, but special defenses must be specially pleaded. The evidence, when offered for the declared purpose of proving a manual gift, was inadmissible. Whether it would sustain a defense of remission is beside the question, as that issue was not tendered. Even if the evidence had been admitted without objection, we question its effect under the circumstances.

“It is true that, if evidence be offered without objection in support of a defense which should be specially pleaded the issue thus presented must be considered and passed upon. But it does not follow that one should be called upon to meet an issue that was not raised on the trial at all. No one can defend himself unless he is informed in some manner of the charges which his adversary, makes against him. Nor should any appellate court be called to decide questions that were not raised in the court below. If the judge a quo has correctly decided the issues that were presented to him, his judgment should be affirmed.” Theodore vs. N. O. Mutual Insurance Association, 28 La. Ann. 917.

In Jackson vs. Michie, 33 La. Ann. 723, it was held that “an issue which was not raised in the lower Court and is made for. the first time in the brief of Counsel in this Court, shall not be noticed or passed upon.”

“This court will not pass on issues presented in argument only, and which were not formed by the pleadings below.
“* * * The opponent has advanced in argument, which might have offered some seriousness, in reference to the absence of a previous liquidation of the rights of the issue of the first marriage as a condition precedent for recovery, but, as those matters have not been put at issue by the pleadings, they cannot be considered.” Succession of J. B. Rhodes, 39 La. Ann. 473, 2 So. 36.

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