text:
    No. 9555
    Orleans
    WARN v. MEXICAN PETROLEUM CORPORATION
    (Jan. 3, 1927. Opinion and Decree.)
    (Jan. 31, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1.Louisiana Digest — Pleading—Par. 71; Prescription — Par. 218, 220, 224.
    Allegations o_f a petition are taken as true for the purpose of a plea of prescription.
    2. Louisiana Digest — Prescription — Par. 170.
    The written acknowledgment of liability by a duly authorized agent will interrupt prescription.
    3. Louisiana Digest — Prescription — Par. 168, 173.
    Where a party lulls another into the belief that he will suffer no loss by inaction and thus induces him to refrain from claiming a debt, prescription will not begin to run until the other party is undeceived.
    4. Louisiana Digest — Estoppel—Par. 38,39; Prescription — Par. 144.
    The doctrine, “contra non valentem agere non currit praescriptio”, is not inconsistent with the laws of Louisiana or repugnant to our system of jurisprudence and will be enforced in proper cases.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Mr. and Mrs. James Warn, Sr.,, against Mexican Petroleum Corporation.
    There was judgment for defendant and plaintiffs appealed.
    Judgment reversed and case remanded to lower court for new trial.
    Legier, McEnery & Waguespack, of New Orleans, attorneys for plaintiffs, appellants.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   OPINION

JONES, J.

On November, 4, 1922, plaintiffs filed their original petition, the material allegations being as follows:

1. That they were both of the age of majority and domiciled in the Parish of Orleans.

2. That the “Mexican Petroleum Corporation”, a corporation organized under the laws of the State of Maine, doing business in the State of Louisiana, with an office in the City of New Orleans, was indebted to them in the sum of $2,192.00, under Act 47 of 1920, compensation for the death of their son, Levy Warn, who had been employed by the defendant corporation in June, 1921, as a laborer and had remained so employed until he was accidently killed in the course of his employment, on defendant’s premises in the Parish of St. Charles, on November 4, 1921, while in the act of extinguishing a fire.

Plaintiffs pray that the “Mexican Petroleum Corporation”, through its proper officers, be duly cited to appear and answer petition and that in due course there be judgment in favor of petitioners and against the “Mexican Petroleum Corporation” in the full and true sum of $2,192.00, with legal interest from judicial demand.

The three citations, which were issued on the day that the original petition was filed, namely, November 4, 1922, were each addressed to the “Mexican Petroleum Corporation”, through its proper officer, and were served on that day.

One of the returns reads as follows:

“On the 4th day of November, 1922, I served a copy of the within citation and accompanying petition on Mexican Petroleum Corporation, defendant herein, through Henry H. Chaffe, one of its designated agents, leaving -the same at his domicile, 1439 Josephine street, in the hands of Geza Loos, house worker, a person apparently over the age of sixteen years, living at said domicile, whose name and other facts connected with this service, I learned by interrogating the said Geza Loos, house worker; the said Henry H. Chaffe being absent from his domicile at the time.”

The other two citations were served upon George Denegre, and Victor Leovy, on November 4, 1922.

On November 22nd, the defendant filed an answer, the first two paragraphs of which read as follows:

“Now into court comes the ‘Mexican Petroleum Corporation’, duly organized under the laws of the State of Maine, and for answer to the plaintiffs’ petition says:
“Respondent admits that it is a corporation, organized under the laws of the State of Maine; that on May 9, 1915, it filed a copy of its charter in the office of the Secretary of State and designated by a power of attorney, George Denegre, Victor Leovy and Henry H. Chaffe, or either of them, as resident attorneys' in this city for the service of process, but respondent denies that it is indebted to the plaintiffs in any sum whatsoever.”

Respondent then denies that plaintiffs’ son was ever in its employ and avers that it has no knowledge of the other allegations in plaintiffs’ petition, but denies them on information and belief.

On December 4, 1922, iplaintiffs filed a supplemental petition, reiterating the allegations of their former petition.

Paragraphs two, three and four of this supplemental petition read as follows:

Par. 2. “That petitioners knew that their son, Levy Warn, had been in the employ of the ‘Mexican Petroleum Corporation’ at Destrehan, St. Charles Parish, Louisiana, from June, 1921, up to the time of the death, November 4, 1921; that they did, through others, subsequent to his death, take up with the representative of the ‘Mexican Petroleum Corporation’ the adjustment of their claim for the death of their son; and that during those negotiations the representative of the ‘Mexican Petroleum Corporation’ not only did not contend that petitioners’ son was not in its employ, but on the contrary offered petitioners an amount less than petitioners thought they were entitled.
Par. 3. “That petitioners then employed undersigned counsel to represent them; that their counsel then wrote the Secretary of State of Louisiana on June 2, 1922, as to the domicile of the ‘Mexican Petroleum Corporation’ and as to -whom to serve process, all as will more fully appear by reference to copy of said letter annexed and made part hereof as petitioners’ exhibit ‘A’.
Par. 4. “In answer to said letter, petitioners’ counsel received a letter dated June 5, 1922, from the Secretary of State of Louisiana informing him that the ‘Mexican Petroleum Corporation of Portland, Maine’, had appointed Messrs. George Denegre, Victor Leovy and Henry H. Chaffe of New Orleans, agen’ts for service of process, all as will more fully appear by reference to the original letter, hereto annexed and made ¡part hereof as petitioners’ exhibit ‘B’.”

Petitioners then allege that they had filed the original suit on November 4, 1922, and that defendant, “Mexican Petroleum Corporation of Portland, Maine”, had filed an answer on November 22, 1922, which was virtually a general denial; that said answer being, irreconcilable with petitioners’ dealing with “Mexican Petroleum Corporation”, immediately after reading said answer, petitioners’ counsel made a further investigation and ascertained from the public records of the City of New Orleans that a corporation had been formed in this state on February 5, 1918, by act before Felix J. Puig, notary public, with its domicile in the City of New Orleans, State of Louisiana, under the name of “Mexican Petroleum Corporation of Louisiana.”

Petitioners then aver that the only information that they had prior to the placing of their claim in the hands of counsel was that their son had been employed by the “Mexican Petroleum Company”; that they did not know then and do not know now whether it was the “Mexican Petroleum Corporation of Portland, Maine”, or the “Mexican Petroleum Corporation of Louisiana” that employed their son and that their counsel believed from the letter from the Secretary of State that there was only one corporation doing business in this state known as the “Mexican Petro-. leum Corporation of Portland, Maine.”

Plaintiffs then allege specifically on information and belief that the “Mexican Petroleum Corporation of Louisiana” is a subsidiary corporation of the “Mexican Petroleum Corporation of Portland, Maine”, and that at least one of the officers of the “Mexican Petroleum Corporation of Louisiana” (to-wit: Henry H. Chaffe, Secretary and Treasurer) is the resident agent of the “Mexican Petroleum Corporation of Portland, Maine”, upon whom citation- has been served in this case, on November 4, 1922.

Petitioners then again aver that their son was employed either by the Maine or the Louisiana corporation at the time of his death, but that they do not know which and they pray that both corporations be served with supplemental petition and with original petition and for judgment against either one or the other of the corporations, as originally prayed for.

Citation accomipanying the supplemental petition shows that it was served on the “Mexican Petroleum Corporation of Portland, Maine”, through its attorney, P. M. Milner, and that it was served on the “Mexican Petroleum Corporation of Louisiana”, on the 4th day of December, 1922, by leaving it at the office of the company at the Whitney Bank Building in the hands of G. C. Stein, Superintendent, the president and other officers being absent at the time of service.

On December 14, 1922, the “Mexican Petroleum Corporation of Louisiana, Inc.”, through it counsel, P. M. Milner, filed exceptions as follows:

' 1. Defendant in the citation is denominated “Mexican Petroleum Corporation of Louisiana”, but its correct name is “Mexican Petroleum Corporation of Louisiana, Inc.”
2. This petition is irregular, null and void, because it is an attempt to graft on to a suit against the "Mexican Petroleum Corporation of Maine” a totally distinct judicial entity, a suit against exceptor.
3. Misjoinder of parties and prescription of one year.

On December 5, 1923, the plea of prescription was tried before Hon. E. K. Skinner, judge of Division “C”, when plaintiffs’ attorney, over objection of defendant’s attorney, testified as follows:

(a) That the claim had been sent by a client in La Place, Louisiana; that shortly after getting the .claim he had written to the Secretary of State for information and for the names of the agents and that the Secretary of State had answered, said letters being filed in evidence as exhibit “A” and exhibit “B”.

His letter to the Secretary of State reads as follows:

“June 2, 1922.
“Honorable Secretary of State,
“Baton Rouge, Louisiana.
“Dear Sir:
“Please advise me at your earliest convenience where is the domicile of the Mexican Petroleum Co. and who it had designated as its agents in this State for the service of process.
“Thanking you in advance for this information, I am
“Yours very truly,
“(Signed) F. F. TIESSIER.”

The reply of the Secretary of State reads as follows:

“Department of State
“Baton Rouge, La.
“June 5, 1922.
“Mr. Ferdinand' F. Teissier,
“730 Gravier Street,
“New Orleans,- Louisiana.
“Dear Sir:
"Replying to yours of June 2nd, beg to say that the records of this office show that tlie Mexican Petroleum Corporation of Portland, Maine, appointed George Denegre, Victor Leovy and Henry H. Chaffe New Orleans attorneys for service of process, on May 16, 1916.
“Very truly yours,
“(Signed) JAMES J. BAILEY,
“Secretary of State.”

(b) That in addition, he had before him information that his claim had been taken up before it came to him with the representatives of the “Mexican Petroleum Corporation” and the local surety company and that evidence is in the form of a letter, marked exhibit “C”, of January 17, 1922, to Clarence Bougere.

The letter reads as follows:
“Maryland Casualty Company,
“F. Highlands Burns, President, "Home Office, Baltimore.
“New Orleans Claim Division, “Jefferies Brinton, Mgr.
“Suite 1218-25 Hibernia Bank Bldg. “New Orleans
“1-17-22.
“21-1359-Comp-50716-A
“Mexican Petroleum Corp.
“Levy Warren.
“Mr. C. L. Bourgere,
“La Place P. O.,
“Louisiana.
“Dear Sir:
“We are in receipt of your letter of the 16th instant and while we do not understand exactly what interest you have in the matter, we can- at this time advise -you that your understanding that we propose to pay $10,000.00 is very much in error and our payments will be made in accordance with stipulations of the Louisiana Compensation Act, as indicated in our letter of January 9, 1922.
“We would appreciate having you inform us just what connection you have with the case.
“Yours very truly,
“(Signed) E. F. NINE,
EFN:LH
Mgr. N. O. Cl. Div.”

Defendant’s attorney objected to this document as being “res inter alios acta”, but the court overruled the objection.

The attorney further testifies that after filing his original petition and having it served as shown above, that he thought he had done everything possible under the circumstances, but that the answer of the defendant corporation being so inconsistent with the evidence in his possession, he made further investigation of the matter and had found that there was a second corporation, called the “Mexican Petroleum Corporation of Louisiana, Inc.”; that he then learned for the first time that there was a local Corporation doing business in Louisiana at the date of Warn’s death, other than the “Mexican Petroleum Corporation of Maine”.

He then offered in evidence the charter of the “Mexican Petroleum Corporation of Louisiana, Inc.”, and said charter was admitted in the evidence over the objection of the attorney for defendant. This charter shows that the “Mexican Petroleum Corporation of Louisiana” was incorporated on the fifth day of February, 1918; that it has a capital of $5,000,000.00, to be represented by fifty shares of stock of the par value of $100.00 each; that the corporation is organized primarily for the purpose of carrying on business of purchasing, selling and trading in petroleum of all grades and for the purpose of discovering, extracting, producing, refining oil, etc., along with many other powers.

The powers of the corporation are vested in a board of directors, to be composed of not less than three nor mofe than seven stockholders, who shall serve until the annual meeting, which is fixed for the second Monday of January each year; two of them forming a quorum, but if for any reason the election is not held, the directors shall continue in office until a new board is created. It is provided that five per cent of the outstanding capital stock shall constitute a quorum for the transaction of all business and that the board of directors shall have a right to fill any vacancy. The first board of directors and number of shares are as follows:

Walter R. Winship, 25, Whitney Building, President.

Charles E. Smith, 24, Destrehan, Louisiana, Vice-President.

(

Henry H. ■ Chaffe, 1 Denegre Building, Secretary-Treasurer.

The last paragraph of the attorney’s testimony reads as follows:

"It is admitted, subject to the objections originally made by the defendant, that if the plaintiffs were put on the stand they would testify that the only thing that they know about the case is that their son was employed at De.strehan by the ‘Mexican Petroleum Company’.”

After hearing the above evidence, judgment was rendered by Judge Skinner, on December 5, 1923, and signed on February 15, 1924, maintaining the plea of prescription and dismissing the plaintiffs’ suit.

The sole issue before this court is the validity of the plea of prescription.

It is well established, in Louisiana, that the allegations of a petition must be taken as true for the purpose of a plea of prescription.

(See Foster and Glassell Co. vs. Knight, 152 La. 596, 93 So. 913, and the authorities cited there.) .

Therefore, the allegation that the “Mexican Petroleum Corporation of Louisiana” is a subsidiary of the “Mexican Petroleum Corporation of Portland, Maine”, must be taken as true. It has been held that the separate corporate identity "will be disregarded where the subsidiary is used as a mere instrumentality or agent of the parent corporation.

See Chicago, Milwaukee & St. Paul Railway Company vs. Minneapolis Civic Association, 247 U. S. 490.

See also Hart Steel Company vs. Railroad Supply Company, 244 U. S. 294.

Also Gulf Oil Company vs. Lewellyn, 248 U. S. 71, and U. S. vs. Lehigh Railway Company, 254 U. S. 253.

The allegation made in the supplemental petition, Confirmed by the testimony of plaintiffs’ attorney, quoted above, to the effect that the claim of plaintiffs had been taken up with the “Mexican Petroleum Corporation” and that during the negotiations the representative of the “Mexican Petroleum Corporation” offered plaintiffs an amount less than petitioners claimed, must be taken as true, particularly when said allegation is supported, in part, by the letter of the insurance agent, copied above.

If it be shown on further hearing of this case that the Maryland Casualty Company was the duly appointed agent of the employing company in this State for the payment of compensation claims and if it be further that the addressee of the above described letter, namely, C. L. Bourgere of La Place, Louisiana, was the agent of the plaintiffs for collection of this claim, as is apparently testified to by plaintiffs’ attorney, then this letter would be acknowledgment, in writing, that something is due-to the plaintiffs under the Louisiana Compensation Act and would estop the defendant from claiming the benefit of one year prescription.

In the case of Lemmeux vs. Cousins, 154 La. 811, 98 So. 255, Judge St. Paul uses the following language:

“The original demand was made within a year, but the amended petition was £ ed only a year and three days after the oc< irrence; whereupon defendant pleaded 1 le prescription of one year under the statue.
“We think that the district judge erred in sustaining the plea of prescription, and that the Court of Appeal properly overruled it, as the original demand interrupted prescription.
“In that original demand plaintiff set up all the facts necessary to show that he had some claim under the workmen’s compensation law. It is true that he erred in the measure of his claim, but he showed an unmistakable intention to claim his dues, whatever that might be, and this we think was sufficient to interrupt (prescription.
“In Vernon vs. Illinois Central R. Co., 154 La. 370, 97 South. 492, ante, p. 370, this court said:
“ ‘A citation to defendant, even though insufficient to support a judgment, will yet suffice to interrupt prescription, if it serve to notify such defendant of the nature and grounds of plaintiff’s claim and that plaintiff means to assert the same.’
“And the court cited, support thereof, inter alia, Succession of Winn, 27 La. Ann. 687, wherein it was held that a rule on an executrix to file an account, if she had not sufficient funds to pay a claim, interrupted prescription as to such claim.
“The above view applies to all claims generally; but, with special reference to claims under the workmen’s compensation law, this court held that, in view of the express provisions of the statute that amendments might be allowed at any time and that the technical and formal rules of procedure should not prevail in cases arising under the statute (Act 20 of 1914, 19 pars. 2 and 4), amendments might be allowed even in the Supreme Court itself, and that no informality in the manner of bringing the suit would operate to prevent the usual interruption of prescription by the filing of the claim. See Whittington vs. La. Sawmill Co., 142 La. 322, 76 South. 754; Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25.
“And in Colorado vs. Johnson Iron Works, 146 La. 68, 83 South. 381, wherein the court held that a petition which claimed damages under a general statute, but challenged the constitutionality of, and repudiated the workmen’s compensation statute, showed no cause of action under the latter statute, this court nevertheless affirmed the judgment of the lower court which reserved the right of the plaintiff to proceed anew under the statute.
“Accordingly, in Philips vs. Drilling Co., 143 La. 951, 79 South. 549, this court'held that a petition which stated ‘the nature of the dispute and the contention of the petitioner with reference thereto’ was sufficient to state a cause of action under the statute. And we are therefore clearly of opinion that such a petition will, in any event, suffice to interrupt prescription against an action under the statute.”

In Bourk vs. Sarpy, 30 La. Ann. 494, the Supreme Court held that verbal acknowledgment made by a debtor interrupts prescription as to all makers.

In 49 La. Ann. 501, 21 So. 617, In re Leeds, the Supreme Court held acknowledgment by one solitary debtor interrupts prescription as to all others.

The petition alleges that one of the officers of the “Mexican Petroleum Corporation of Louisiana” was a resident agent of the Maine corporation, and the attached documents show that Henry H. Chaffe was on the fifth day of February, 1913, the secretary and treasurer of che Louisiana corporation, was served on the fourth of November, 1922, with a copy of the original petition, as a resident agent of the foreign corporation. If it be shown on further trial of this case that the said Chaffe was on November 4, 1922, the secretary and treasurer of the foreign corporation, then the “Mexican Petroleum Corporation • of Louisiana, Inc.”, had judicial notice of this claim, because the charter of the Louisiana corporation in Article Two distinctly holds that service may be made upon the secretary of the corporation in the absence or inability of the vice-president and the president.

In the case of Vernon vs. Illinois Central Railroad Company, 154 La. 370, 97 South. 493, the Supreme Court held that the service of a citation addressed to defendant railroad company, through the United States Director General of Railroads, was sufficient to interrupt prescription, and that this officer was sufficiently informed by the citation and petition served upon him of the nature of plaintiff’s claim and the fact that she was demanding payment thereof.

'In the course of this opinion the learned justice uses the following language:

“Article 3518, Revised Civil Code, reads as follows:
“ ‘A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the ownership or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.’
“Construing that article, this court has decided, in numerous cases, that a citation to defendant, no matter how informal or insufficient to serve, as the basis of a suit and judgment, nevertheless generally sufficed to interrupt prescription.
“For the purpose of this case the following seem to us pertinent:
“In Blanc vs. Dupre, 36 La. Ann. 847, it was held that a suit instituted by a curator of a vacant succession, whose appointment was null, nevertheless interrupted prescription in favor of the heir; citing Flower vs. O’Connor, 17 La. 219, holding 'that—
“ ‘If it be established that the defendant had been judicially notified of the titles which are the foundation of the demand, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him by suit, there results from said suit a legal interruption in favor of those to whom such rights belong.’
“In the last-named case the first suit had been brought upon a partnership claim by surviving partner, who did not have authority to represent the other parties in interest, but it was held nevertheless that such suit interrupted the prescription in favor of all parties.
“In Succession of Saunders, 37 La. Ann. 772, it was held that a suit against a person in his individual capacity interrupted prescription against him in his representative capacity, as executor of another, where the cause of action and thing demanded were the same.
“In Succession of Winn, 27 La. Ann. 688, it was held that a rule on an executrix to file an account and sell property if she had not sufficient funds to pay the claim interruped as to such claim.
“Cn the whole we think the Director General was sufficiently informed, by the citation and petition served upon him, of the nature of plaintiff’s claim and of the fact that she was demanding payment thereof; in other words, he was ‘cited to appear in a court of justice on account of’ said claim, sufficiently interrupt (prescription therein.
“Numerous decisions established a distinction between the technical sufficiency of a citation, as a basis for the maintenance of proceedings and judgment and its sufficiency for the purpose of interrupting prescription. Citation for the purpose of interrupting prescription need not be technically perfect in form or service. La. Dig., p. 717, S. 189; 6 id., p. 299, S. 193; Tessier’s Digest, p. 45; Norwood vs. Lake Bistineau Oil Co., 145 La. 829, 83 So. 25; State vs. Dyer, 154 La. 379, 97 So. 563; Bergstrom vs. Spielman, 158 La. 418, No. 7708, Bk. 56 Orl. App.; Babin vs. Lyons Lbr. Co., 132 La. 876, 61 South. 855; King vs. Guynes, 118 La. 34, 42 South. 959.

In the case of Gueble vs. Town of Lafayette, 118 La. 494, 43 So. 63, quoted in Babin vs. Lyons, 132 La. 877, 61 So. 855, where the citation was addressed to, and served upon the mayor, the court said;

“ ‘There can be no doubt that through those papers he received judicial knowledge of the fact that the plaintiff had filed a demand against the town of Lafayette in the District Court, what that demand was for, and what the petition prayed for. He was fully informed on these points as if the citation, which he received, had been addressed to the town of Lafayette, and had been placed in his hands. He was the proper person and the only necessary person to whom that knowledge should be conveyed. The fact that the citation was not addressed to the town of Lafayette did not do away with the knowledge which the papers, which were actually served upon him, had conveyed.’ ”

In King vs. Gumnes, 118 La. 344, 42 So. 959, the court said:

“The law considers the fact that rather than the form of judicial notice in .the matter of prescription. The word ‘cited’ as used in C. C. Art. 3518 has been construed to -mean any kind of judicial notice which brings him to the defendant knowledge of the demand instituted against him, such as notice of seizure and sale in executory proceedings or seizure and notice under execution of twelve months’ bond. King vs. Labranche, 35 La. Ann. 305; Bovd vs. A. & H. Heine, 41 La. Ann. 395, 6 So. 714; Becnel vs. Waguesipack, 40 La. Ann. 112, 3 So. 536.

“A suit against the same defendant personally will interrupt prescription against him as executor. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. State vs. Jackson, 37 La. Ann. 769.

“In the case of Anding vs. Texas & Pacific Railway Company, et al., 158 La. 412, 104 So. 190, the defendant was in the first suit, the railway company, and the petitioners’ citation was addressed to it and served upon the receivers. Though the railway company did not owe the claim, service upon the receivers, who did not represent the railway, was held sufficient to interrupt prescription of the suit against the receivers, who were third parties for the. reason that the first citation and petition against the railway were served upon the receivers and fully informed them of the nature of the claim asserted by the plaintiff.”

So in this case the citation and 'petition showing time, place and nature of accident were addressed to the “Mexican Petroleum Corporation” and were served on one, who was according to the supplemental petition at that time the secretary and treasurer of the Louisiana corporation. Certainly, if that statement be true, and for the purpose of this exception it must be taken as true, then the Louisiana corporation, through the very officer who ordinarily pays claims, had judicial notice of this claim.

Babin vs. Lumber Co., 132 La. 873, 61 So. 855:

“For the ordinary purposes of a suit and judgment a citation or judicial demand addressed to a person other than the one intended to be sued, though delivered to the latter, is ineffectual; but where such demand has been served upon the right person and conveys full information, a slight error in the designation or description of the person intended to be sued, which could mislead no one, will not prevent its interrupting prescription of the claim so demanded.”

In the case of Odoberto vs. Virgin, No. 7986 of this court, Opinion Book 57, it was held as follows:

“Where a party lulls another into a belief that he will suffer no loss by his inaction and thus induces him to refrain from claiming a debt, prescription will not begin to run until the other party is undeceived.”

See also Succession of Gilmore, 157 La. 133, 102 So. 94.

■ In this case the letter of the claim agent of the insurance company, quoted above, which plaintiffs’ attorney offers as proof of his statement that the claim had been taken up with the “Mexican Petroleum Corporation” and the local surety company may well have lulled the plaintiffs into a false sense of security.

The evidence shows that plaintiffs knew at the time of the trial of this exception only one fact on this point, namely, that their son had been employed by the “Mexican Petroleum Corporation” at Destrehan, Louisiana, and both pleadings and evidence show that plaintiffs’ attorney did not know, up to the time of the trial in the lower court, which corporation was actually the employer of the deceased.

Jones vs. Railroad, 125 La. 547, 51 So. 582:

“The uncertainty which precludes the coming into existence of a cause of action for damages, and which therefore prevents prescription from beginning to run, must not be confounded with the inability of plaintiff to procure the necessary evidence for establishing, in court, a cause of action known to exist. This is illustrated by the case of Brown vs. Clingman, 47 La. Ann. 26, 16 South. 564, where plaintiff knew that defendant was the incendiary who had set fire to his hotel, but could not prove it, and waited to bring his suit until he could secure the necessary evidence for making the proof, and the court sustained the prescription. If, in that case, the identity of the incendiary had been unknown, the prescription could not have run, for the bringing of the suit would have been impossible. In Cox vs. Von Aslefeldt, 105 La. 543, at the bottom of page 560, 30 South. 175, the court alludes to a case where prescription was held not to run in favor of one who avoided citation by concealment. In the same decision, numerous cases are cited where the principle ‘contra non currit prescripto’ was amplified.”

In the case of McKnight vs. Calhoun, 36 La. 408, the Supreme Court held the doctrine, “contra non valentem agers non currit praescriptio”, is not inconsistent with the laws of Louisiana or repugnant to our system of jurisprudence and will be enforced in proper cases.

For the reasons above set forth the judgment of the lower court is reversed and the case is remanded for further hearing in accordance with the above, opinion.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9587
    Orleans
    GULF MOTOR TRUCK CO. v. SCOTT & CO.
    (January 31, 1927. Opinion and Decree.)
    (February 14, 1927. Rehearing Refused.)
    (March 2, 1927. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Laws—Par. 97.
    The law does not favor forfeitures. It will be applied only in clear cases.
    2. Louisiana Digest — Laws—Par. 97.
    Where the law authorizes the sheriff to make “the usual charge of warehouse keepers” for keeping property under seizure under penalty of forfeiting his whole bill of charges, the forfeiture will not be inflicted in the absence of a clear case of overcharge.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by Gulf Motor Truck Co. against G. D. Scott & Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Daly & Hamilton, of New Orleans, attorneys for plaintiff, appellee.
    W. O’. Hart, of New Orleans, attorney for civil sheriff, defendant, appellant.
   OPINION

CLAIBORNE, J.

This case involves only the interpretation of Sections 18 and 29 of Act 136 of 1880, p. 196. Section. 29 reads as follows:

“If the sheriff overcharges any item in ,any bill of costs, he shall forfeit the whole bill containing the item so overcharged.”

The facts are as follows:

• On August 22, 1923, the plaintiff obtained in this ease a provisional seizure against the 'defendant on a claim for rent.

A number of automobiles and other property were seized by the sheriff and taken in his possession.

The automobiles and other property remained in the possession of the sheriff until December 7, 1923, when they were sold by the sheriff. The sheriff then presented his bill of costs or charges amounting to $468.51, composed of eleven different items. -The plaintiff objects to the bill on the ground that several of the items thereof were overcharged, namely, making lots $8; hauling $60; storage $45; garage $290. He took a rule on the sheriff to show cause why he should not forfeit the whole bill of costs as a penalty.

The judge made the ■ rule absolute and - ordered forfeiture of the entire amount. In' his reasons for judgment the judge states ■ that the only excessive charge is that of storage of the automobiles or garage. We shall, therefore, restrict our. attention to. that item.

The sheriff has charged fifty cents a ■ day as garage fees for each auto. The con-. tention is that the usual charge is ten dollars per month, and that the sheriff should not have charged more under penalty of forfeiture of "his entire bill of costs of $468.

Section 18 of the Act of 1880, p. 196, provides:

“For keeping property under seizure when stored in a warehouse the usual charge of warehouse keepers shall be allowed and no more, etc.”

It is true that the testimony establishes that the usual charge for garage fees was ten dollars a month. But there are two reasons why this charge should not be binding upon the sheriff in this case. The first is that the sheriff had made a contract with one Sutter, garage keeper, by which the latter was to receive his automobiles and the sheriff was to pay him fifty cents a day. There is no testimony that this contract was not entered into honestly and for the best interests of all concerned, or that the sheriff had any interest in it.

The second is that the usual charge for garage is ten dollars per month, it does not follow that fifty cents per day is excessive. In fact, Sutter testifies that it is the customary charge,' and there is no evidence to the contrary. For many reasons that suggest themselves, the charge would vary between a price per day and a price per month. -The sheriff would’not have'contracted for a pried per month, as property in his possession often remains only a few days, and is released or bonded, and the garage fee could not have been for a month while it remained in garage less than a month. When the bill was presented to the plaintiff he made no objection to it. He did not complain of an overcharge. He made no attempt to adjust the ‘differences between him and the sheriff in a matter dependent upon evidence and proof and admitting of a difference of opinion. He might have obtained a reduction of the charge had he asked it of the sheriff or in his rule. But the prayer of his rule is too drastic. The law had not fixed an arbitrary and flat figure for storage, but made it “the usual charge of warehouse keepers”.

It left it to be determined by usage and evidence as a matter of proof. Had the sheriff made an overcharge for a service for which there could not have been no difference of opinion and no room for proof, and the sheriff’s attention had been called to the overcharge, the question presented would have been different. But under the facts of this case we think that the judgment is erroneous.

It was a proper case for the demand of a reduction of the charges by rule and judgment therein, but not of forfeiture of the entire bill without clear proof of an overchage.

The law is not prone to inflict penalties and only in clear cases of dishonest violation.

Penal statutes must be strictly construed.

4 La. Dig., S. 97, p. 638.

The rule is dismissed at the cost of plaintiff in rule, reserving his rights to demand a reduction of this item.


author: WESTERFIELD, J.

text:
    No, 10,629
    Orleans
    BARRY CO. v. VILLERMIN
    (January 17, 1927. Opinion and Decree.)
    (January 31, 1927. Rehearing Refused.)
    (March 28, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Compensation—Par, 15.
    A claim for damages can not' be pleaded in compensation of a promissory note.
    Appeal from First City Court, Division “A”. Hon. W. Alexander Bahns, Judge.
    Action by E. S. Barry Co., Inc., against A. Villermin.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. W. Talbot, of New Orleans, atttorney for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant. '
   OPINION

WESTERFIELD, J.

Plaintiff sues on the following instrument:

“$125.00 February 9, 1926.
“I promise to pay to the order of E. S. Barry & Co., Inc., one hundred and twenty-five and 00-100 dollars, payable weekly, until paid in full.
“Value received and charge the same to account of
“To ____________________________________________________
“No. ________________________________,____________________
“A. VILLERMIN.”

The following credits appear on the reverse of the ■ note:

“Bal. Feb. 9 ____________________________________________$125.00
“Paid Feb. 13 ____________________I_____________________ 5.00
“Bal. Feb. 13 __________________________________________$120.00
“Paid Feb. 20 ________________________________________ 5.00'
“Bal. Feb. 20 ______________________:_________________$115.00
“Paid March 6 ________________________________________ 5.00
“Bal. March 6 __________________ $110.00”

Defendant made several technical defenses such as improper verification and failure to serve citation which we will dismiss with a word because the petition was subsequently properly yerified, and no exception to the citation was filed in limine litus and defendant answered to the merits.

Defendant complains that he was not allowed to offer proof in compensation of a claim he makes against plaintiff to the effect “that he gave the note to the plaintiff with the distinct understanding that he was guaranteed a. net income of sixty dollars per week out of which the • note was to be liquidated and this for hauling for plaintiff; that defendant was obliged to pay losses on account of the failure of plaintiff to carry out its said agreement far in excess of the jurisdiction of this court and the right of action for such excess is specially reserved to defendant”.

Counsel. calls this defense a failure of consideration, but since his client testified that he received the face of the note in cash, counsel, is evidently confused, and if the defense can be classified it is a plea of compensation. Treated as such the evidence offered to sustain it was properly rejected because a claim for damages (this claim can be nothing else) can not be pleaded in compensation of a note because it it not equally liquidated and demandable. Pike vs. Wells, 24 La. Ann. 208. No re-conventional demand is made, hence the proof offered was propérly excluded.

Defendant’s counsel says the instrument sued on is not a note, meaning, doubtless, not a negotiable note, for he quotes the definition of a negotiable instrument in the Negotiable Instrument Law. Counsel does not explain what effect this contention could have on the case, and we can see no pertinency on our own account, for the note is still in the hands of the original payee. Under the circumstances we will not discuss the negotiability of the note.

The judgment appealed from is therefore affirmed.


author: JONES, J.

text:
    No. 10,883
    Orleans
    AUTOMOBILE UNDERWRITERS OF AMERICA v. LANGHLIN (INC.)
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Warehouses . and Warehouse Receipts — Par. 6.
    A contract for storage of automobile at owner’s risk will be maintained where the owner assumed the risk on account of the lower rate and the garage keeper used the same diligence as he used for his own cars.
    Appeal from First City Court, Division “A”. Hon. W. Y. Seeber, Judge.
    Action by Automobile Underwriters of America against Joseph Langhlin, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    St. Clair Adams, Leslie Moses, of New Orleans, attorneys for plaintiff, appellant.
    J. T. Conery, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit by plaintiff as subrogee of insured for one hundred thirty-one and 40-100 ($131.40) dollars, the amount of a bill for repairs to the automobile of Jacob Winsberg, which had been surreptitiously taken from defendant’s garage.

Defendant admitted the storage, the taking and the damages, but denied liability on the ground that plaintiff stored his car at his own risk.

There was judgment for defendant and plaintiff has appealed.

The evidence shows that Winsberg signed the following contract when he left his car at defendant’s garage on the night of September 18, 1926:

“I hereby agree to store my automobile when not in use in the garage of Joseph Langhlin at 4500 Magazine Street at my own risk.”

Plaintiff argues that the contract is invalid because a bailee can’t contract against his own negligence and the burden of proof rests on the bailee to show due care where loss and damage have been estab- ■ lished.

The evidence shows that defendant, who : was in the undertaking business and did not operate a public garage, required all persons leaving their cars in his place to sign the above contract; that he only charged five ($5.00) dollars per month • while the public garages in the neighborhood charge seven and- 50-100 ($7.50) dollars per month. Plaintiff admits that he selected this garage because the price was lower, although he saw ' signs around the place reading: “Cars left, here at owner’s risk.”

The evidence also shows that the defendant was keeping about eight of his own cars and about ten cars of outsiders on the night plaintiff’s car was taken; that a couple lived on the place and someone was always in the office until the gate was closed; thht the front gate was left open until midnight’when the gate was closed and no one could enter; that the gate was not forced open the night the car was taken, but thieves got in before the gate was closed.

In support of his contention, plaintiff cites the case of William vs. Weil Co., 1 La. App. 188. In this case the Court, though it dismissed the suit on the merits said in the course of the opinion, the notice “cars and contents stored at owner’s risk” posted in a garage does not exempt the owner from liability ’ for his lack of care and prudence. In that decision the’ above statement was not material, because the court found that plaintiff had turned his ear over to a colored boy, an employee of the garage at his residence, some blocks away and there was no proof that the car had been stored in the garage before it was damaged.

Furthermore, the facts in that case differ materially from those outlined above, because there ^as no consideration for diminution of liability and no proof that the bailee had signed a contract especially assuming the risk.

Plaintiff then (juotes ■ several cases where the courts have held that common carriers can not so limit their responsibility as not to he liable for their own negligence.

The principle that common carriers are held to a higher degree of care when acting as such than when acting as ware-housemen is so deeply imbedded in our law that it is unnecessary to cite authorities.

Furthermore, it has been repeatedly held by the Supreme Court of the United States , and by our own Supreme Court that a common carrier may limit its liability where the shipper pays a lower rate in consideration of this reduction in value.

On this point see:

Hart vs. Pennsylvania Railroad Co., 112 U. S. 331;

Adams Express Co. vs. Croninger, 226 U. S. 491;

J. D. Simms and Sons vs. New Orleans & N. E. R. R. Co., 122 La. 268, 47 So. 602;

Higgins vs. N. O., M. & C. R. Co., 28 La. Ann 133.

In the last cited case the plaintiff was injured while riding, free of charge, under a contract by which he assumed. all the . risks of injury to his person or property ’ and the Supreme Court, in dismissing his . suit for damages said:.

“All contracts may be made except those ¡ reprobated by law or public policy; and a contract by which one stipulates for exemp- ■ tion from, responsibility for losses. occa- ; sioned to another from the negligence of his agents or servants is not against public .policy or forbidden by law; but if the losses , resulted from the fraudulent, willful or recplesi mis conduct of the agent or em- ■ ployee, it would be.”

In the case of Marks vs. New Orleans Cold Storage Co., 107 La. 174, 31 So. 671, the Supreme Court said — “We understand that the defendant can limit its liability and those who sign the limited clause will , be bound by its terms.”

In the case of Pecoraro vs. Graffato, No, 10,385 of the docket of this court, decided on February 14, 1927, it was held that a lessor could lawfully stipulate against his responsibility for damages caused by any vice or defect of thq leased property.

The standard of care required of bailee is set forth. Article 2937 of the Civil Code provides as follows:

“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”

Certainly the defendant in this case has measured up to this standard as the evidence quoted above shows that his eight cars were in the same garage all the time.

A careful consideration of the record convinces us that the contract was valid and the defendant has furnished the necessary evidence to meet all requirements as to burden of proof.

For above reasons the judgment is affirmed.


text:
    No. 9461

      Orleans

    MAGRUDER v. GALLIBER
    (Nov. 29, 1926. Opinion and Decree.)
    (Jan. 3, 1927. Rehearing Refused.)
    (Mar. 2, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1.Louisiana Digest — Landlord and Tenant —Par. 19, 57, 64.
    It is the duty of the lessee to deliver back the premises at the expiration of the lease in the same condition in which they were at the time of making the lease, wear and tear excepted.
    2. Louisiana Digest — Landlord and Tenant —Par. 19, 64.
    The lessee is liable for all injuries and damages done to the leased premises through his fault.
    3. Louisiana Digest — Landlord and Tenant —Par. 19; Obligations — Par. 153, 156, 158.
    The lessee’s obligation is to make the repairs during the continuance of the lease; hence, if he fails so to do, during that time, he need not be put in default before suit.
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by C. G. Magruder against A. L. Galliber.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a suit for rent for damages for injury done to the leased premises.

Plaintiff alleged that on December 31, 1921, he leased to the defendant the inside half of the store corner of Magazine and Milan Streets for the price of $50 per month; that defendant failed to pay the rent for the months of March, April and May, 1923, for which he owes $150 with ten per cent attorney’s fees; that the defendant received said premises in good condition; that he damaged the plumbing fixtures to the amount of $250; that he delivered possession of the premises to plaintiff on May 12, 1923, but failed to return the keys worth $10; that he damaged the shelving and-cabinets to the extent of $70, and the plaster behind the fixtures to the extent of $30; making in all $525.

That defendant admitted the lease but denied all the other allegations of the petition.

There was judgment for plaintiff for $471.66 and the defendant has appealed.

C. C. 2710 (2680): “The lessee is bound to enjoy the thing leased as a good administrator, according to. the use for which it was intended by the lease.”

Art. 2720 (2690): “If no inventory has been made (of the premises) the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exception contained in the preceding article.”

In the case of Briede vs. McClellan, No. 7599, Book 55, we had occasion to examine the obligations of the lessee to return the leased premises in good condition. We said:

“It is the duty of the lessee to deliver back the premises at the expiration of the lease in the same condition in which they were, at the time of making the lease, wear and tear excepted. The lessee is liable for all the injuries and damages done to the leased premises through his fault.” Also 7258 Orl. App.

Plaintiff and Henry F. Hinrichs, an architect and contractor, established to the satisfaction of the trial judge and to our own the correctness of plaintiff’s claim to the extent of $471.66.

The defendant did not testify; he was out of the State.

His brother, Prank Galliber, and defendant’s wife, testified for the defense. The preponderance of testimony appears to as, as it did to the trial judge, to be in favor of plaintiff.

The defendant contended that his breach of the contract was passive and therefore he could not be condemned without proof that he was put in default. But the violation was active “by doing something inconsistent with the obligation of the contract.” C. C. 1931 (1925).-

In such a case, “damages are due from the moment the act on contravention has been done, and the creditor is under no obligation to put the debtor in default.” C. C. 1932 (1926).

He also argued that “the term of the lease of this defendant had not expired, and defendant had until the expiration of his lease to restore the leased premises to the condition it was in when he received the premises.”

This point was overruled by us in Zagame vs. Chalmette Laundry Co., No. 7242 of this court, book 53.

In the case of Payne vs. James, 42 La. Ann. 230, 7 So. 457, similar to the one under consideration, the court quoted Article C. C., 1933 (1927), Sec. 1, as follows:

“When the thing to be given or done by contract was of such a nature, that it could only be given or done within a certain time which has elapsed, or under such circumstances which no longer exist, the debtor need not be put on legal delay to entitle the creditor to damages.”

The Court concluded by saying on page 233:

“We therefore conclude and we hold that in this case the law could not, and did not, require that plaintiff’s demand should have been preceded by a,putting in default.”

The transcript shows that the contract of lease had expired by its violation by the defendant and by a judgment putting an end to it, before this suit was filed.

The judgment is therefore affirmed.


text:
    No. 10,836
    Orleans
    HASKINS & SELLS v. COMMUNITY BURIAL SERVICE CORP.
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 493, 539, 544.
    A default judgment based on legal evidence in the lower court will be confirmed when appellant makes no appearance and files no brief.
    . Appeal from First City Court, Division “C”. Hon. W. V. Seeber, Judge.
    Action by Haskins & Sells against Community Burial Service Corporation.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. H. McClendon, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for two hundred eighty and 28-100 ($280.28) dollars, amount due for audit of defendant’s books.

Defendant denied each allegation of the petition.

On proper legal evidence a judgment by default was rendered below in favor of plaintiff and defendant has appealed.

Defendant has made no appearance and filed no brief in this court, and the judgment is affirmed.


text:
    No, 10,874
    Orleans
    CRESCENT BATTERY & LIGHT CO. v. MILNER
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Bills and Notes — Par. 130.
    Want of consideration is not a defense against a holder in due course.
    Appeal from First City Court, Division “B”. Hon. Val Stentz, Judge.
    Action by Crescent City Battery & Light Company against Harry W. Milner.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for plaintiff, appellee.
    Daniel A. McGovern, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a'suit for five (5> promissory notes drawn by the defendant to the order of the Bear Radio & Battery Company and by said company .endorsed, As each of the notes is for twenty-one and 00-100 ($21.00) dollars, the total amount of the claim is one hundred five and 00-100 ($105.00) dollars, with eight per cent interest and attorney’s .fees:

The defense is want of consideration.

As the evidence clearly shows that plaintiff was a holder in due course, this defense has no merit.

Defendant also claimed that he had paid one of the notes sued on, but the evidence fails to sustain this contention.

For above reasons the judgment is affirmed.


author: CLAIBORNE, j.

text:
    No. 10,695
    Orleans
    LIDDLE v. POST, Appellant
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4¿ 4 (a).
    In case of collisions of automobiles it is the: duty of courts to condemn in damages those who have violated the Traffic' Ordinances and thus brought about the collision.
    2. Louisiana Digest — Automobiles—Par. 8, 9.
    In order to recover an amount for damages, it should be made to appear with rea-, sonable certainty that the plaintiff has suffered serious damages; it should not be slight, temporary hurt.
    Appeal from First City Court, Division “B”. Hon. V. 3. Stentz, Judge.
    Action by Miss M. S. Liddle against V. H. Post.
    There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    J. B. Rosser, of New Orleans, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, j.

This is a damage suit resulting from a collision of two automobiles.

The plaintiff alleged that at about 8:45 a. m. of June 8, 1926, he was driving out toward the lake on Napoleon Avenue on the downtown or lower side thereof, when the defendant without the sounding of horn or other warning darted across from the uptown side of Naipoleon Avenue to the lower side, crashing into plaintiff’s car; that she was thrown against the side of her car and suffered bruises of her right and left legs and left arm and her eye glasses were broken, and she sustained a nervous shock; that in addition, her car was damaged to the extent of $74.65 and was towed to the shop where it still remains unrepaired; that plaintiff is a Social Service worker and for the want of her car suffered a daily loss of $10. She prays for $196.65 damages.

The defendant denied all plaintiff’s allegations and, reconvening, alleged that the plaintiff negligently violated the City Ordinance and drove into his car hitting it in the center of the right side crushing the hood and the running board and causing damage of $110, and $70 for seven days’ loss of use of car. He prayed for $180 damages.

There was judgment ia favor of plaintiff for ?76.75- and defendant has appealed.

A photograph of defendant’s car shows that it was damaged' upon the right side near the front fender. The plaintiff’s car was damaged on the left side by the radiator and left front and rear fenders.

The facts are 'that the iplaintiff was driving her car out towards the lake on the downtown pavement of Napoleon Avenue, and that when she reached Howard Street, near the center thereof, her car collided with the one of defendant, when both were damaged.

The defendant testified that he was driving out Napoleon Avenue on the uptown or upper side thereof in the direction of the river; when he reached Howard Street he turned to his left in the direction of downtown and crossed the neutral ground of Napoleon Avenue; he “saw Mrs. Liddle’s car coming about two-thirds of a block away and started to cross the street”; he did not stop on the neutral ground nor did he blow his horn; “the first thing he knew he was knocked across the wheel and he was knocked to the neutral ground”. His car was also damaged.

Napoleon Avenue is a right-of-way street. Sec. 7 of the Traffic Ordinance. Howard Street is a right-of-way street only from Calliope to Napoleon Avenue. But. admitting that both streets had the right-of-way, the plaintiff coming up upon defendant’s right had the right-of-way over him. S. (c) of Sec. 7. In order to secure his right-of-way across the neutral ground of Napoleon Avenue the defendant should have complied with S. (d) of the ordinance. This provides “that the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop,

etc.” This the defendant did not do, although ho testifies that he saw plaintiff’s car coming about two-thirds of a block awáy. Of course, we believe this 'to be an exaggeration, as plaintiff’s car could hardly have run 200 feet while defendant was crossing the neutral ground, 20 or 30 feet wide.

It goes without saying that if defendant’s car had stopped there'would have, been no collision.

This Court has repeatedly decided that in cases of collisions of automobiles it is the duty of courts to condemn in damages those who have violated the Traffic Ordinances and thus brought about the collision. Nos. 7891, 8191, 8232, 8245, 8249, 8250, 8297, 8820, 8905,-9205; 148 La. 310.

The defendant contends that the injury to his car on the right thereof shows that it was struck by plaintiff’s car. But the damage tp plaintiff’s car was all upon the left side of the radiator, upon the left front and rear fenders.

This would equally prove that plaintiff’s car did not run into the defendant’s car. It was a side collision of both cars. But the determining factor is not so much what car struck the other, as what car was the cause of the collision; and this we have found against the defendant.

The plaintiff has asked for an increase of the judgment for physical injuries and for loss of use of her car.

The physical injuries were trifling bruises of her legs and arms. De minimis lex non curat. In Branchi vs. Del Valle, 117 La. 591, 42 South. 148, the court said:

“In order to recover an amount for damages, it should be made to appear with reasonable certainty that the party has suffered serious damages; it should not be slight, temporary hurt.” Mader vs. LouisTille, N. O. & T. Ry. Co., 40 La. Ann. 64, 3 So. 462.

Nor does it appear that plaintiff hired another car on account of the damage to hers. The damages claimed are only an estimate of the repairs necessary; but “the car still remains unrepaired”.


text:
    No. 9604
    Orleans
    SCHREPFER v. SUAREZ
    (Mar. 14, 1927. Opinion and Decree.)
    (Apr. 11, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Continuance — Par. 12; Appeal — Par. 596, 597.
    Absence of counsel is, of itself, no ground for continuance, and, when the transcript fails to indicate the cause of counsel’s absence, it will be presumed that the court acted properly in considering the case.
    Appeal from Civil District Court, Divi-, sion “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Johanna E. Schrepfer against Mrs. Antoinette Suarez, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. Winans Wall, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

This is an action in jactitation, or slander of title, involving the following described property:

A certain lot of ground, together with all the buildings and improvements thereon, rights, ways and privileges thereto belonging (without, however, interfering with the right-of-way of the Northeastern Railroad Company), situated at Little Woods on Lake Pontchartrain, at about twelve miles from the City of New Orleans, and making part of the Third District of the City of New Orleans, measuring 40 feet front on Lake Pontchartrain by a depth of 75 feet between parallel lines, bounded on the west by H. Dymond and on the east by Paul Verges.

Defendants filed exceptions of vagueness and no cause of action which were oveiruled. A default was entered and subsequently confirmed resulting in a judgment ordering defendants to bring suit within sixty days, asserting their claim of ownership, upon penalty of perpetual injunction.

The only contention counsel makes is the assertion that the exceptions were overruled in his absence, which action of the court he claims was prejudicial error.

There is nothing in the transcript to inform us of the reason for considering the case in counsel’s absence and no reason or excuse is otherwise presented. The proceedings simply fail to record his presence. The fact that counsel was absent is not, of itself, sufficient grounds for a continuance. Courts are presumed to act with propriety and in this case it will be presumed that the case was properly taken up in counsel’s absence.

We find no error in the judgment. Dolton vs. Wickliffe, 35 La. Ann. 365.

It is therefore affirmed.


text:
    No. 9635
    Orleans
    NATIONAL OIL WORKS, INC., v. KORN BROS., Defendants and Appellants
    (Mar. 28, 1927. Opinion and Decree.)
    (Apr. 11, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Corporations — Par. 10, 160, 177.
    The fact that defendant signed a document intended to be a contract with a supposed corporation does not estop him from denying the corporate existence of the other party to the intended contract, provided plaintiff acts promptly and protests corporate existence of defendant before he receives any benefits from said contract.
    2. Louisiana Digest — Corporations—Par. 8, 191.
    If it be proved that plaintiff had no legal existence, at the time the purported contract was signed, the so-called contract will be declared null and void and suit for damages for breach thereof will be dismissed.
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by National Oil Works, Inc., against Korn Brothers.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    Dart, Kernan & Dart, L. C. Guidry, of New Orleans, attorneys for plaintiff, appellee.
    Samuel Wolf, of New Orleans, attorney for defendants, appellants.
   JONES, J.

This is a suit for one hundred twenty-five ($125.00) dollars damages for breach of plumbing contract alleged to have been made by plaintiff with defendants on July 26, 1922.

Defendants answer denying that there ever was a contract and averring that they had made every effort to have purported contract duly and properly signed by plaintiff, but their requests had been refused and they had, therefore, declined to hav.e further transaction.

The pleadings are as follows:

The petition was filed on March 2, 1923, in the name of “National Oil Works, a corporation created and existing under and by virtue of the laws qf the State of Mississippi and authorized to do business in the City of New Orleans.” The affidavit to the petition is sworn to by Peter A. Cooney, as the president of National Oil Works, Inc. The suit is entitled National Oil Works, Inc., and the alleged contract, which is attached to the petition, is made in the name of National Oil Works, Inc., and is signed by that name and also by defendants.

The citations were issued in the name of National Oil Works, Inc., and the defendants, on March 19,' filed exceptions of vagueness, calling the plaintiff, National Oil Works, Inc. These exceptions of vagueness were maintained by. the judge on April 3, 1923, with leave to amend and on April 30th of the same month, plaintiff filed a supplemental petition in the same name attaching thereto plans and specifications.

On May 29, 1923, defendants filed an answer denying that either National Oil Works or National Oil Works, Inc., was a Mississippi corporation with authority to do business in New Orleans.' They further denied that the copy of the contract attached to plaintiff’s petition was identical with that which had been given to them. They admitted that unsigned contracts in duplicate already written out in the name of National Oil Works, Inc., had been tendered to'theni by plaintiff’s architect; that they had signed these documents and left them at the office Of the architect for the signature of plaintiff and that later they had received their copy simply signed National Oil Works. They further averred that upon receipt of this document that they called upon the architect for information as to the status of the National Oil Works and that they were told that Peter A. Cooney was the president of National Oil Works, Inc.; that they made several efforts to see the said Peter A. Cooney, but were finally told by the architect that Mr. Cooney did not wish to see them and they thereupon notified said architect that they -had no contract and would do nothing further in the matter.

On June 27, 1923, plaintiff filed a second supplemental petition saying that in the original petition, petitioner had alleged its name to be National Oil Works, Inc., but petitioner now says that National Oil Works & Mill Supplies Co., Ltd., is a corporation duly organized and existing under the laws of Mississippi and that said incorporation was certified to by the clerk of the Chancery Court of Harrison County on August 31, 1918; that after said date the board of directors of said corporation changed its name to National Oil Works, Inc.; that petitioner is now informed that while its action is legal the name of the corporation cannot be changed until the resolution of the board authorizing 'the change has been recorded with the clerk of the Chancery Court and duly published; that being uncertain as to the validity of the action qf said board, petitioner desires to substitute the name National Oil Works & Mill Supplies Co., Ltd., instead of National Oil Works, Inc.

Petitioner further alleges that National Oil Works & Mill Supplies Co., Ltd., and National Oil Works, Inc., plaintiff, are one and the same corporation and the identical legal entity created under the laws of Mississippi and authorized to do business in the State of Louisiana.

Petitioner prayed that it be allowed to file the supplemental petition and that National Oil Works & Mill Supplies Co., Ltd., be designated as the name of iplaintiff and that there be judgment in its favor. The judge signed the order allowing the filing of the amended petition.

On July 9th defendant filed exceptions to this second supplemental petition as follows:

(1) Want of legal citation, because the citation gives the name of plaintiff as National Oil Works and there .is no such plaintiff.
(2) That said supplemental petition is too vague and indefinite for defendants to answer in that it sets out a change in party plaintiff without legal ground and causes a multiplicity of parties plaintiff after issue had been joined.
(3) That said supplemental petition shows no cause or right of action.

These exceptions were overruled on February 5, 1924, and on February 16th of the same month defendants filed an answer denying on information and belief the averments of the second supplemental petition.

The case was tried in the lower court on April 24, 1924, and judgment was rendered n favor of plaintiff and suspensive appeal was taken to this court.

The sole question before us is the validity of the contract.

On the trial of the case plaintiff introduced a certified copy of a charter passed before a notary public in this city, on February 14, 1923, wherein a new corporation was formed called National Oil Works of Louisiana, Inc.

Article three of this charter shows that this corporation was particulárly and expressly organized for the purpose of taking over the business, property, assets, stock, good will, etc., of National O'il Works, Inc., a corporation organized under the -laws of the State of Mississippi, first under the name of National Oil Works & Mill Supplies Company, Ltd., and which charter has been subsequently amended.

Plaintiff also introduced in evidence a certified copy, signed by Secretary of State, of a certificate of incorporation of National Oil Works & Mill Supplies Company, Ltd., organized under the laws of the State of Mississippi, dated September 19, 1918, authorizing the said corporation to do business in the State of Louisiana, and also a certificate from the same official saying that Peter A. Cooney, of New Orleans, had been designated as the agent of said corporation for service of papers, etc.

Defendants introduced into evidence their copy of the contract which was signed National Oil Works.

On the trial of the case Mr. Cooney testified that National Oil Works, Inc., had been doing business in Louisiana for twenty years and that it had purchased property in that name.

In his brief and argument in this court, plaintiff contends that defendants are estopped to deny the existence of the corporation and quotes in support of this argument a paragraph from the case of Latiolais vs. Citizens’ Bank of Louisiana, 33 La. Ann. 1449, reading as follows:

"It is settled, by an overwhelming array of indisputable precedents, that, as a rule, one who contracts with what he acknowledges tó be and treats as a corporation, incurring obligations in its favor, is estopped from denying its corporate existence, particularly when the obligations are. sought to be enforced. It is right that it should be so. If a party has no other objection to oppose to the enforcement of the contract than that the obligee is incompetent to sue,, for reasons anterior to his contract, or last acknowledgment, he should not be permitted to escape liability. The cáse would be different where the incompetency is the result of something happening subsequent to the contract, or last acknowledgment of existence and capacity. It is a familiar principle that one cannot be permitted to play fast and loose so as to take advantage of his own unfair vacillations.”

That was a suit brought by the Citizens’ Bank of Louisiana to foreclose a mortgage and the defense was made that the Citizens’ Bank had not been properly incorporated and in the paragraph just before the one quoted by plaintiff the Supreme Court uses the following language:

“All the reasons set forth in the petition, in th'e oral and written arguments, to show that the bank is a myth and has no status, existed, to the knowledge of Duclozel, prior to and in 1869, when he acknowledged and warranted the existence of that institution, in the sale which he made to Sproule of his stock therein and of his property mortgaged to it, and when he imposed upon h:s vndee the assumption of all his confessed debts and liabilities, present and contingent, to the corporation.”

In other words, the Supreme Court here says that a litigant who has borrowed money from a so-called corporation, with full knowledge as to its status, is estopped to deny its corporate existence when sued for the debt.

In La. Nat. Bank vs. Henderson, 116 La. 411, 40 So. 779, the Supreme Court held:

“The fact that a creditor has, contracted with a company holding itself out as a corporation does not necessarily work an estoppel to deny its corporate existence.”

To sustain this ruling the court cites various decisions, a careful reading of which shows that the plea of estoppel has been overruled only when the party pleading it has received fruits or benefits from the alleged company with actual or constructive. knowledge of the true situation.

In Williams vs. Hewitt, 47 La. Ann. 1080, 17 So. 496, where plaintiff sought to hold defendants for an amount deposited in the Traders’ Bank, under which name defendants had done business, and defendants claimed estoppel on the ground that plaintiff had recognized the corporate capacity of defendants by the deposit and various other dealings, the Supreme Court in an opinion overruling the plea of estoppel uses the following language:

“Their knowledge that the institution was not chartered came to them after the deposit. There is, in our view, no basis to infer any notice to plaintiffs of any kind on which an estoppel can be based, unless we are to hold that the externals usual to all private hanks, of the name, of a bank and presidents and cashiers, with the issue of certificates of deposit, estop plaintiffs from asserting the individual liability óf those who receive deposits.
“The courts have not frequently applied the estoppel against denying the existence of the corporation. It will be found that in such cases the estoppel has rested on conduct of the corporation which made it inequitable for it to avail of the estoppel, and it strikes us if there is any room in this case for any estoppel, it would be that arising from defendants taking plaintiff’s money on deposit as bankers with no license to do that business.”

In Lehman & Co. v. Knapp, et als., 48 La. 1154, 20 So. 674, the court uses the following language:

“The plea of estoppel has never been applied to the creditor of a conporation seeking the payment of his claim. In one case the debtor has received a benefit that ..'stops him; in the other the creditor has sued to recover an amount 'due by those who have failed to av^il themselves of the terms of the status.”

In the instant case defendants promptly questioned the existence of the National ' Oil Works and of the National Oil Works, Inc., and the evidence now shows that no such corporation either, de jure or de facto, existed at the time. Certainly defendant had then received no fruits or benefits from the so-called corporation, nor < had he acknowledged their corporate capac- ' ity or acquiesced therein, because his copy of contract was .not signed by plaintiff when he affixed his signature.

Suppose defendant had done the work and had filed suit for. the contract price and the sheriff had reported' that there was no such corporation as the National Oil Works, Inc., and no person authorized to receive service for any such entity, what could the defendant have done? We must consider the situation as of the time defendant declined to execute the contract and not in the light of the subsequently filed documents.

While we can find no decisions exactly covering the point- at issue and neither attorney has referred us to any, we are of the opinion that the reasons underlying the decisions on analogous cases referred to above support defendant’s contention that there was no contract between the parties and that this defense was raised in time.

For the above reasons the judgment is reversed and it is now ordered, that plain- • tiff’s suit be dismissed.


text:
    No. 9741
    Orleans
    ANZELMO v. INDUSTRIAL CITY CO., INC.
    (Apr. 25, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Fraud—Par. 2; Error and Mistake — Par. 16.
    The law will not maintain a contract, where one of the parties has signed the contract in error as to the substance thereof, the error being caused-by the fraudulent representations of the agent of the other party.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge, •
    Action by Gaetano Anzelmo against Industrial City Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Terriberry, Rice & Young, A. R. Mar-, tinez, of New Orleans, attorneys for plaintiff, appellee.
    Jos. Casey, Jno. Dymond, Jf., R. J. Wien-, mann, of New Orleans, attorneys for defendant, appellant.
   OPINION

JONES, J.

This is a suit for rescission of sale of two squares of ground in St. Bernard Parish in Versailles subdivision and the return of one thousand’ ($1000.00) dollars paid on purchase price, on the ground of fraud and misrepresentation.

Plaintiff alleges that he told defendant’s agent, Robinson, that he wanted land within twelve squares of the -main road running from- New Orleans to Point-a-laHache and said agent took him on the Paris Road about twelve squares from the main road in front of the Mistrot house and told him that the squares involved herein were located about twenty-five feet beyond the Mistrot house; that he wanted high land and signed a contract on February 27, 1922, agreeing to purchase two squares, 548 and 545, for two thousand ($2000.00) dollars on terms of six hundred ($600.00) dollars cash and forty ($40.00) dollars per month on the unpaid balance; that he is of Italian birth and unable to read English well and believed the contract to be in accordance with the representation of the agent as to the location of the squares; that he made repeated demands of the agent and finally of the president of the defendant company to locate his squares, but finally ascertained after he paid one thousand ($1000.00) dollars. that the squares 545 and 548, as shown on the map referred to in the contract as made by Jos. Pille and protracted by A. C. Duval, C. E., were at least twenty-four squares from the main road, entirely covered by water and inaccessible; that he has since learned that defendant .had falsely and fraudulently misrepresented the land to him.

Defendant filed an exception of no cause of -action which was overruled and then an. answer admitting the sale and the payment of one thousand ($1000.00) dollars on the purchase price, but denied all fraud, misrepresentations or error.

There was judgment for plaintiff and defendant hás appealed.

The plaintiff, who was keeping a grocery store in this city when he made the contract, testified that he could barely write his name' and could not read English; that for many years he had operated a truck .farm in St. Bernard Parish and that he was buying these two squares solely for the purpose of building a house and having a truck farm again and this testimony is corroborated by Robinson (tr. p. 41)- as follows:

■ “Q. That he wanted to set out a farm, d'.d he?
“A.. Yes. ' . ,
“Q. All that ground that you ..showed him'was good ground?
‘‘A. All.the ground there is' good, there is a high ridge back there.
“Q. All highland?
“A. Supposed to be, yes, sir.
“Q. All back ground there where you went with Mr. Anzelmo 'there are truck farms today?
“A. Partly truck farms, yes, sir.”
And on page 31 as follows:
“Q. Didn’t you tell me that the land that you intended to sell Mr. Anzelmo was high, dry land ?
“A. Well, all that land is supposed to be high and dry.
“Q. Answer my question. Didn't you tell me that the land you were to sell to Mr. Anzelmo was to be high, dry land?
“A. I remember talking to you and I told you about the ground. I said I sold it to him as an investment; he wanted to get good ground, naturally.
“Q. Didn’t you tell me that was the only sort of land that you wanted to sell to Mr. Anzelmo?
“A. Certainly, I said I would like to see him get good ground, naturally s'o.”

Anzelmo- further testified that the land that he intended to purchase was to be situated approximately twelve squares from the main or St. Bernard-Point-a-la-Hache road, and immediately adjoining the property occupied by one John Mistrot; that the Mistrot property, is about twelve squares from the St. Bernard-Point-a-laHache Highway. His testimony further shows that both prior to the making of the contract ;and after its making, the said’ agent accompanied him on the Paris Road by Mistrot’s house and advised him that the squares he would purchase would be just adjoining Mistrot’s property at that location. The recbrd' further shows that the property situated near the Mistrot property is used -for farming purposes.

There is -a conflict in the testimony of Anzelmo and of Robinson as to the time when Anzelmo was shown the property, Anzelmo contending that on several occasions he and Robinson visited the property while crayfishing, and each time Robinson pointed out the approximate location of the squares. Some of these purported locations, Anzelmo says, took place prior to the making of the contract, while Robinson contends that he only pointed the approximate location after the contract was signed. However, Robinson admits that he had been on crayfishing parties with Anzelmo, and he further admits that they did stop by a white house, and that he pointed out the property to Anzelmo as being in the vicinity of that house in a westerly direction.

Robinson testifies that he read the contract to Anzelmo and showed him a map of the property, but Anzelmo denies this and as Robinson was getting thirty per cent commission and in this instance received the entire cash payment of six hundred ($600.00) dollars, we think that he had great inducements to mislead Anzelmo as to the location of the land. We do not believe that the plaintiff would have considered the proposition for one moment if he had known that the squares in question were inaccessible, were frequently under water and were utterly useless for farming purposes, because the record shows that plaintiff has but little and was not in a position to speculate on possibilities of en- ■ hanced value due to a possible drainage district in the future.

The president of the defendant company, who was not present at the time the land was pointed out, frankly told the plaintiff when he came to his office some months after the contract was made that he could not definitely locate the squares himself and that a survey would be necessary.

In this statement he is sustained by the contract itself, which provides that the sale is made “as per map made by Jos. Pille, protracted by A. C. Duval, Jr., C. E.”

A careful reading of the record convinces us that Anzelmo. would not have had the slightest idea what was meant by the above-quoted language, even if it were read to him, which is by no means certain. He wanted trucking land and he thought he was buying it and Robinson certainly encouraged him to believe that he was getting such land.

Defendant’s attorney objected to all Evidence as to verbal statements of the agent, Robinson, on the ground that the contract provides that “no agent is authorized to make any other agreement than is evidenced by this contract”, but the judge of the lower court properly overruled the objection as fraud and misrepresentation are charged in the petition.

The Supreme Court has passed upon a case in which the facts were almost identical with those in the instant case, in the matter of Schmitz vs. Peterson, et al., 113 La. 134, 36 So. 915. In that case the plaintiff signed a contract, agreeing to purchase certain land that was described in the contract, which in truth and fact was not the land that had been pointed out to him by defendant’s agent, and, consequently, the contract was signed by him through error, and this suit was brought to set aside the contract. In that case, as in the .instant case, the land pointed out by defendant’s agent was of considerable value, while the land described in the instrument of writing was not only different from that pointed out by the agent, but was inferior and practically worthless. The defendants in that case also attempted to escape liability on the ground that they were not responsible for the defendants’ agent’s act in pointing out the wrong tract, as he was not authorized to do so, and the principals did not know when they signed the act that the agent had pointed out the land. The court held:

“Lewis (the agent) throughout the whole transaction acted for them. The particular act of pointing out the property cannot be detached from his or other acts and be repudiated while defendants avail themselves of the error itself. It is very certain that the minds of the parties never met upon the object or thing which was made to appear as the object contracted for.
“In Ashley vs. Schmalinski, 46 La. Ann. 499, 15 South. 1, this court said that the law will maintain a contract, the consent to which of one of the parties is the result of error as to the substance of the contract, the error being caused by artifices and fraudulent representations of the other party, or if fraud, not his directly, has been participated in and made effective by him. Article 1824, Civil Code, declared that the reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because, the motive being that which determines the will, if there be no such cause where one is supposed to exist, or if it be falsely represented, there can be no valid consent.”

Clearly,, the law in that case governs the instant one, for, as above stated, the thing that induced Mr. Anzelmo to purchase land in St. Bernard Parish was that it should be high and dry, at a distance approximately twelve squares from the main St. Bernard Road, so that he could use the same for farming purposes. The instant case is stronger than the one cited above, because the defendant’s agent admits in his testimony that he only intended to sell Anzelmo high and dry land. He further admitted that the land that he pointed out to Anzelmo was high and dry, and- that it was not located at about twenty-eight squares from the main St. Bernard Road, which is the approximate location of squares 545 and 548. Consequently, there never was a meeting of the minds of the parties from the very inception • of the contract.

See also the iollowing:

Jacobs vs. Freyhan, 156 La. 584, 100 So. 726.

Newman vs. Scarborough, 115 La. 864, 40 So. 248.

Colas vs. Donaldson, 1 La. App. 389.

Lawrence vs. Mount Zion Church, 1 La. App. 404.

For the above reasons the judgment is affirmed.


text:
    No. 9615
    Orleans
    DI MAGGIO v. TARDO, Appellant
    (Mar. 14, 1927. Opinion and Decree.)
    (Apr. 11, 1927. Rehearing Refused.)

      (Syllabus by the Court J

    1. Louisiana Digest — Obligations—Par. 16; Guaranty — Par. 3.
    Parol evidence shall not be received to prove any promise to pay the debt of a third person.
    Appeal from Civil District Court. Hon. Percy Saint, Judge.
    Action by Antonio Di Maggio against Nicholas T'ardo.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed,
    I. H. Barrios, Theo. Cotonio, of New Orleans, attorneys for plaintiff, appellee.
    Buck, Walsh & Buck of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit to correct an alleged error in the settlement of a partnership and to set aside the same.

The plaintiff alleged that he and defendant had been partners; that on November 10, 1922, they dissolved their partnership as appears by an act before Theo. Cotonio, Notary, annexed to the petition; that in accordance with said act plaintiff paid to the defendant $898.67 for his share in said partnership; that later, after a checking of the partnership books, it was discovered that defendant owed the partnership $959.33; that the payment of $898.67 was due to the error on the rpart of the bookkeeper, who prepared the statement, in failing to charge defendant, Nicholas T'ardo, with the debts of his son, Peter Tardo, to the partnership amounting to $783.74, which defendant had assumed.

The defendant admitted that the partnership once existing between him and the plaintiff and its dissolution and liquidation by act of Theo. Cotonio, Notary; and the receipts by him of $898.67, but denied all the other allegations of the petition:.

There was judgment for plaintiff and the defendant has appealed.

The facts of the case- are that upon the books of the firm of Di Maggio and Co., Peter T'ardo, a son of the defendant Nicholas Tardo, appeared as a debtor to the firm in two amounts of $787.74 and $161.24, making together $948.98.

Plaintiff’s contention is that the defendant had assumed the payment of that amount and had authorized the bookkeeper of the company to charge his account with it, and that in making the settlement of of the partnership affairs the defendant, in error, had not been debited with that amount.

The plaintiff attempted to prove, by parole, this promise of the father to pay the debt of his son. This testimony was objected to and the objection was properly maintained under Article 2278 of the Civil Code which reads as follows:

“Parol evidence shall not be received to prove any promise to pay the debt of a third person.”

This language is prohibitive, and it has been held that a court cannot consider the parole testimony admitted even without objection. Succession of Edwards, 34 La. Ann. 228-232; State ex rel. Fiebleman v. Judge, 45 La. Ann. 1426, 14 South. 428; Watson v. Jones, 125 La. 251, 51 South. 187; Guillot v. Guillot, 141 La. 81, 74 South. 702; No. 10,601 Orl. App.

Neither has the plaintiff any written promise by the defendant to pay the debt of his son. The plaintiff relies upon a pretended authority given by the defendant to the bookkeeper of the company to charge his account with that amount and to make an entry to that effect upon the books of the company by the bookkeeper, Doherty, the bookkeeper, does not state that he was authorized by Nicholas Tardo to make the entry. As to the item of $161.24 he says:

“Well, it was agreed, Mr. Jacobs told me charged when I fixed up the books ‘the same as to. the item of $783.74’. * * * Mr. Tardo knew nothing about making these entries; Mr. Tardo was supposed to agree to that * * * he never looked at the books at all.”
“Q. Did Mr. Tardo tell you to make this charge against his account?
“A. He didn’t say that directly; no, not to me. * * * He said nothing at all. I thought it was understood that it was to be charged.”

The defendant denies vehemently that he ever promised to pay the debt of his son or that he authorized the charge.upon his account of the debts of his son, or that he saw the charge upon the books.

“A bookkeeper cannot bind his employer by an unauthorized entry upon his books.” C. C. 2997 Spears vs. Turpin, 9 Rob. 293.

The plaintiff has therefore failed to establish his case with sufficient certainty and the judgment in his favor must be reversed.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that plaintiff’s demand be rejected at his cost in both courts.