author: MOUTON, J.

text:
    No. 982
    First Circuit
    DEMARCO v. GOBER
    (March 8, 1932. Opinion and Decree.)

      Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    B. M. Harvard, of Hammond, attorney for defendant, appellee.
   MOUTON, J.

A mule valued at $125 ran into an automobile, which Gober, defendant, was driving on the highway between Hammond and Ponehatoula. In the collision, the mule was killed.

Plaintiff, owner of the mule, sued defendant for its value, who reconvened, claiming damages for injury to the auto he was driving, and for personal injuries.

The demand of plaintiff was rejected, and judgment was rendered in favor of defendant for $98 on his. reeonventional demand.

• Plaintiff appeals, and, as usual, defendant is asking for an increase in the amount allowed him in reconvention.

Defendant was traveling at a rate of speed not exceeding 30 miles an hour, which was not excessive. This fact is established by the testimony of defendant and F. B. Cowan, deputy sheriff of Tangipahoa, who was traveling northward in the same direction with the defendant at the time, and was at a distance of about 150 feet from defendant’s auto when the collision occurred. '

It appears from the evidence of defendant and Cowan that the mule suddenly dashed from a lane into defendant’s pathway, .then ran north a short distance, turned south, and ran into defendant’s car.

It is shown by defendant and Cowan that defendant did not have time to apply his brakes or to turn to his left so as to avoid the accident, which was clearly unavoidable.

The demand of the plaintiff for the value of the mule was therefore properly rejected.

The vital issue presented for solution is in reference to the damages allowed against plaintiff, in reconvention. It is to this question that we shall direct our attention.

In the case of Damonte v. Patton, 118 La. 530, 43 So. 153, 154, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862, where a runaway horse had run against a street car, the court said:

“The law is ‘that the owner of an animal is. answerable for damage he has caused’ (Civ. Code, art. 2321); and the presumption is that the owner of the animal is in fault, and the burden is on him to show that he was without the slightest fault and did all that was possible to prevent the injury.”

In the case of Bentz v. Page, 115 La. 560, 39 So. 599, where plaintiff had been bitten by a dog and was suing for the damages resulting therefrom, the court applied the doctrine above quoted from Damonte v. Patton, 118 La. 530, 43 So. 153, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862.

In Bentz v. Page, 115 La. 560, 39 So. 599, 600, the court referred to the leading case on this subject, of Martinez v. Bernhard, 106 La. 368, 30 So. 901, 55 L. R. A. 671, 87 Am. St. Rep. 306.

The court, in 115 La., quoted from the Martinez case, as follows:

“While the least act of negligence should be enough to hold one liable who owns a dog, yet it must appear there must be some negligence, however slight.”

The law draws no distinction between the animals' the owner may have which cause the damage as the same burden of proof is imposed upon him for relief from responsibility.

As owner, it is presumed that he is in fault, and he must show that he was without fault, but we must be guided by what was said in the Martinez case, as follows:

“It must appear there must be some negligence, however slight.”

This ruling in the Martinez case was based on what is said by Laurent, vol. 20, p. 695, in the following language:

“Le proprietaire d’un animal ne saurait etre declare responsable du dommage lorsqu’il n’a commis aucune espece de negligence et qu’il na pu ni prevoir ni empecher 1’accident dommageable.”

It is said in that quotation that the owner cannot be responsible where he has not been guilty of any negligence which justified the ruling in the Martinez case, where the court says, to hold him liable “it must appear that there was some negligence, however slight.”

The quotation from this French commentator, after saying the owner is not responsible if he has not been negligent, continues as follows:

“And was not able.to foresee nor prevent the damaging accident.”

In the case of Shawhan v. Clarke, 24 La. Ann. 390, where plaintiff had been injured by a runaway horse and buggy, the court held defendant was not liable “if the running away of his horse was. not caused by his carelessness or negligence, but was caused by some other person or agency over which he could exercise no control.” This doctrine was approved in Zambelli v. Johnson & Son Co., 115 La. 483, 39 So. 501.

In Shawhan v. Clarke, 24 La. Ann. 390, above cited, it was, recognized, as it was in the Martinez case, that the owner, to be held responsible, must have been careless or negligent, which is in keeping with the doctrine announced in the quotation from Laurent.

In the 24 La. Ann., the ruling is extended further and relieves the owner of liability where the damage is caused by some “agency over which he could exercise no control.” This latter expression of the court is. in harmony with the French commentator where he says the owner cannot be held when he could neither foresee nor prevent the accident.

The proof shows that the mule dashed suddenly out of a lane from the east side of the highway running across towards the west when it turned northward, and then came back southward and ran into defendant’s auto, which was moving northward. There is. no evidence whatsoever showing that mules, horses, or cattle are prohibited by ordinance of the police jury or other authority from roaming at large on the highways of the parish of Tangipahoa in the Seventh ward in which the accident occurred. Plaintiff cannot therefore he held to have been at fault because his mule, on that occasion, had gone on that highway. There is certainly no proof that plaintiff had the mule under his control at the time, and permitted it to rush from the lane into the highway. In that respect he cannot be held to have been guilty of the slightest negligence or fault.

Plaintiff, the evidence shows, was standing on the east side of the highway north of the place when the mule ran into the highway dashing across to the west side. In referring to this position of the plaintiff, who defendant says was standing in the path of the mule, counsel for defendant in his brief, says, if plaintiff had not thrown up his hands and made the mule turn directly into the path of defendant’s car, the accident would not have happened. Counsel says the mule evidently saw the car, and tried to go north. In this, counsel is correct, as we understand the evidence. Counsel says, plaintiff was standing north of the mule and threw up his hands. In testifying on this subject, Genero, witness for plaintiff who saw the occurrence, says the mule was running “pretty fast” northward; that he shouted to plaintiff, Demarco, who threw up his hands.

Gober, defendant, says that plaintiff waved his hands at the mule. There can be no doubt from the evidence, to which we have referred, that he threw up his hands when he heard the shouting from Genero.

Evidently plaintiff saw the mule advancing on him at a rapid gait, and naturally, without having time to think, threw up his hands. This was obviously a natural, prompt, and unpremeditated movement which, it is certain plaintiff could hardly have explained. Plaintiff, in thus acting, cannot be charged, in the slightest degree, with either fault or negligence. It is this throwing up or waving of his hands which defendant contends caused the accident. In all probabilities that is what brought it about, because otherwise the mule would probably have continued northward or would perhaps have taken a westward course, thus avoiding the collision. That is all true, but in raising or waving his hands, which was the cause of the collision, plaintiff was not negligent in the slightest degree, and is not responsible in damages under the authorities above cited.

He could certainly not have foreseen the accident under the circumstances, nor could he have prevented it, and must be absolved from responsibility under the doctrine in Laurent, above cited.

The accident was caused by an agency over which plaintiff, at the time, “could exercise no control,” and must be exonerated from liability, under the ruling in Shawhan v. Clarke, 24 La. Ann. 390.

It is very probable that if plaintiff had not thrown up his hands the mule would have continued on his way northward or would have deviated his course in such a manner as to have avoided the collision. This is true, but we must bear in mind, that a sudden emergency was presented to plaintiff and that he threw up his hands before he had time to reflect and to take in the existing situation. It is possible that he made a mistake in raising his hands, and the safer course would have been for him to have opened the way for the mule to pass. As plaintiff was confronted with a sudden emergency, he cannot be held negligent, though he might not have chosen the wisest course under the circumstances. Martin v. Cazedessus, 15 La. App. 100, 130 So. 129.

This rule has been recognized in many cases, which it is unnecessary to cite.

The occurrence was the result of a pure accident, without fault of either plaintiff or defendant, in which the mule happened to be the unfortunate victim.

The judgment granting damages against plaintiff in reconvention must be reversed.

It is therefore ordered, adjudged, and decreed that the judgment in reconvention against plaintiff be avoided, annulled, and reversed, and that the claim for damages by defendant in reconvention be denied and rejected, and, in other respects, the judgment be affirmed; defendant to pay all costs incurred on the reconventional demand, and the cost of this appeal, plaintiff to pay the cost below on the main demand.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    No. 4191
    Second Circuit (Second Division)
    COOPER v. THIGPEN
    (March 16, 1932. Opinion and Decree.)
    S. M. Atkinson, of Mansfield, attorney for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff, a practicing physician in Mansfield, La., brought this suit to recover the sum of $150, for professional services rendered for the account of Tom Thigpen, the defendant.

The defendant answered, admitting an indebtedness to the plaintiff of $65.50 of the sum sued for, and averring that that amount had been tendered the plaintiff and refused by him since the institution of the suit.

A trial of the case resulted in a judgment in favor of plaintiff as prayed for, and the defendant appealed.

As the amount in dispute is clearly less than $100, this court is without jurisdiction, and the appeal is therefore dismissed ex proprio motu.


text:
    No. 4020
    Second Circuit (Second Division)
    WARDLAW BROS. GARAGE, INC., v. THOMAS
    (March 16, 1932. Opinion and Decree.)
    Argued before DREW, STEPHENS and TALIAFERRO, JJ.
    Modisette, Irion, Comegys & Switzer, of Shreveport, attorneys for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

This is an action in rem against the defendant’s automobile, to enforce the payment of a claim of $210.65. Recognition is sought by plaintiff of a lien and privilege on the automobile, for repairs made and parts furnished, under the provisions of Act No. 209 of 1926. The automobile was seized under a writ of sequestration, and the plaintiff prays that it be sold in order that its claim may be satisfied.

The suit is defended generally upon the ground that the repairs were made and the parts furnished as a result of an agreement between the plaintiff and one A. L. Kelly; and that it was understood between the defendant, Kelly and the plaintiff that the defendant was not to be responsible in any manner to plaintiff as a result thereof.

The defendant asserted other preliminary and technical defenses in the lower court which are not urged here.

The case was submitted to the trial judge upon an agreed statement of facts, which was dictated to the court reporter in open court; and upon the facts as thus set out, judgment was rendered in favor of plaintiff as prayed for. A new trial was granted, however, on motion of the defendant, upon the ground that the court reporter’s notes did not contain all of the facts agreed upon; and after hearing had, in which all of the facts were fully developed, the trial court rendered judgment rejecting plaintiff’s demands.

Prom this judgment the plaintiff appealed.

The plaintiff, appellant, contends that the trial judge erred in granting a new trial.

Pertinent facts were developed on the trial of the case which were not contained in the agreed statement of facts, which occurrence lends force to the contention of the defendant that certain facts were agreed on that were inadvertently omitted from the court reporter’s notes. However, whether the contention of the defendant in this respect be well founded or not, we find no abuse by the trial judge, in the exercise of the wide discretion permitted him by law, in granting the new trial in this case.

The facts of the case are as follows:

The automobiles of the defendant Thomas and A. L. Kelly collided, resulting in considerable damage to defendant’s automobile. The defendant had his automobile removed from the scene of the accident to the Jewella Garage for repair. Kelly admitted sole responsibility for the accident, and agreed to pay for the necessary repairs; but he informed Thomas that he would prefer to have the work .done by Wardlaw Brothers Garage, as he had had an account there for a number of years and would be permitted to pay for the work from month to month. Thomas, believing that as Kelly was to have the work done he should be allowed to choose the place for its performance, acquiesced in the preference expressed by Kelly, and issued an order to the Jewella Garage, with whom he had had a business relation of long standing, to deliver the automobile to Wardlaw Brothers Garage. It was understood by the latter concern, Kelly and the defendant Thomas that the work was to be done for the account of Kelly; the amount of the monthly payments, however, were not specified.

Pursuant to the agreement, Wardlaw Brothers Garage obtained the automobile, repaired and delivered it to the defendant Thomas, and charged the amount herein sued for as the value of the service rendered to the account of A. L. Kelly on its books. Some sixty days thereafter Kelly, not having paid anything on the account, the Wardlaw Brothers Garage instituted this suit against the defendant’s automobile without previous demands for payment on Thomas, or notice of intention to hold him in any manner liable for the repairs.

If the facts were simply that Kelly employed the Wardlaw Brothers Garage to make repairs on the automobile of the defendant Thomas, with his knowledge and consent, it is our opinion that a lien and privilege arising from the provisions of Act No. 209 of 1926 would attach to the automobile to secure the payment for such repairs. It is not necessary that the automobile be owned by the person who contracts for the repairs to be made, in order that the lien and privilege be enforced against it.

In the case of L. P. Stephens & Co. v. Kellogg Lumber Co., 18 La. App. 507, 137 So. 769, 770, this court used the following language:

“The Legislature has ¡passed many acts for the protection of those who render service or perform labor for another engaged in the business of changing the form of property of third persons. In none of these acts, so far as our examination has extended, is the lien or privilege restricted to any extent by the fact of ownership.”

The question here presented is, whether, under the facts developed, it may not be reasonably implied therefrom, that it was the intention of the plaintiff to waive the lien and privilege on the automobile?

Liens may be lost in a number of ways; that is, by payment of the claim secured, by waiver expressly agreed to, or by waiver arising by implication from the facts and circumstances of the particular case.

In this case, we think the lien and privilege was lost by implication. All of the facts and circumstances consistently support this conclusion, but particularly the following:

The plaintiff was relying on the credit of Kelly for payment on a “month to month” plan, which is inconsistent with an intent to rely on a lien as security, which would have expired by limitation in ninety days.

The amount of the bill was charged to Kelly only, which discloses an intent not to look to the defendant for payment.

The automobile was surrendered to the defendant immediately after the repairs were made, without suggestion that he or it would be held liable for the debt.

No demand was made at any time on the defendant, except as against his property, which clearly indicates that no intention existed at any time to hold the defendant liable for the obligation. The conduct of the plaintiff, before the institution of the suit, was wholly inconsistent with an intention to assert the lien, but was fully consistent with its waiver. The intention to urge the lien, as expressed by the suit, seems to us an afterthought, inconsistent with all previous arrangements made and all previous action taken relating to the transaction.

The judgment of the district court, we think, is correct and should be affirmed, and it is so ordered.


text:
    No. 4032
    Second Circuit (Second Division)
    JOHNSON v. SABINE PARISH SCHOOL BOARD
    (March 16, 1932. Opinion and Decree.)

      J. S. Pickett, of Many, attorney for plaintiff, appellant.
    A. B. Cavanaugh, of Leesville, attorney for defendant, appellee.
   STEPHENS, J.

The plaintiff brought this suit against the defendant to enforce the specific performance of an alleged contract; or, in the alternative, for damages in the sum of $866 for its breach.

The defendant filed a prayer for oyer of the contract, and the plaintiff answered that the contract was verbal. The defendant then filed an exception of no cause or right of action, which was sustained by the district court and the suit dismissed. From that judgment the plaintiff prosecutes this appeal.

The plaintiff stated the' case in his petition as follows:

“That on the 6th day of August, 1930, the Sabine Parish School Board passed the following resolutions, to-wit:
“ ‘On motion duly seconded and carried Mr. Cates was authorized to secure a driver for the transfer route driven by Mr. Kegley to the Noble School for session 1930-31;’ and the said resolution was published in the minutes of the Sabine Parish School Board, in the Sabine Index, August 15, 1930.
“That acting under and by virtue of the authority conferred upon him, by the said resolution, the said A. B. Cates for, and in the name of the Sabine Parish School Board, offered to contract and did contract with your petitioner, on the 23rd day of August, 1930, to drive the school transfer on the Kegley Transfer Route to the Noble School, for the session of 1930 and 1931, at a salary of Eighty-five and No/100 ($85.00) Dollars per month for nine months.
“That G. C. Reeves, Superintendent of the Public Schools of Sabine Parish, and Secretary of the Sabine Parish School Board, assured your petitioner on the 25th day of August, 1930, that A. B. Cates had the authority as published in the resolution contained in the Minutes of the Sabine Parish School Board in the Sabine Index, on August l'Sth, 1930, to employ a driver to transfer the children for the Kegley Transfer Route to the Noble School for the session of 1930 and 1931; and that the said contract with and through the said A. B. Cates was valid and‘ binding on the Sabine Parish School Board.
“That your petitioner, acting upon the faith of the published resolution of said Sabine Parish School Board authorizing the said A. B. Cates to employ a driver for the said transfer route, and upon the representation of the said A. B. Cates himself, that he had the authority to employ a dfiver for said transfer route, and upon the confirmation of said authority, and contract by G. C. Reeves, purchased a truck from the Lowery Motor Company, of Mansfield, Louisiana, on the 25th day of August, 1930, for the price and sum of $666.00, of which amount petitioner paid the sum of $106.00 in cash, and gave his notes for the balance, the sum of $560.00.
“That your petitioner purchased the said truck as stated in paragraph Pour hereof for the sole and only purpose of using the same to transfer the school children on the said transfer route, and that he had no other use .than that herein stated for the said truck, and would not have purchased same, had he not needed it for use on said transfer route, and that in further preparation for complying with the said contract, made with the said Sabine Parish School Board through its duly authorized agent, A. B. Cates, petitioner had com structed at cost of $75.00, a special body for said truck, designed to comfortably and efficiently transfer the school children on said transfer route to the Noble school.
“That notwithstanding the said contract made with your petitioner, and accepted by petitioner in good faith, and the expense incurred by petitioner, as herein-above set forth, preparatory to complying with, and carrying out his part of said contract, the Sabine Parish School Board, on the 3rd day of September, 1930, met in special session, and with full knowledge of all the facts herein set forth willfully disregarded and violated said contract with petitioner, by employing another man to transfer the school children on the Kegley transfer route to the Noble School.
“Petitioner shows that he has at all times been ready, able and willing to perform his part of said contract; that he has performed all of his part of said contract that he was permitted to perform by said Sabine Parish School Board, and that he now has in readiness a truck properly equipped to comfortably and efficiently transfer said school children on said transfer route and that he has no other use for said truck, and has used it for no other purpose.
“Petitioner further shows that he has made repeated amicable demands upon said Sabine Parish School Board for specific performance of said contract in vain; and that he has. delayed instituting this action by the request of said School Board; but that all his efforts to induce the said Sabine Parish School Board to perform its part of said contract have been in vain.
“Petitioner further shows that he is entitled to specific performance from the said Sabine Parish School Board under its contract with petitioner; and that the said Sabine Parish School Board is due your petitioner the sum of $85.00 a month, for each school month of four weeks, beginning with September 8, 1930, and for nine months thereafter, for a total sum of $765.00, and $125.00 for attorney’s fees and the cost of this suit.
“Petitioner further shows that in the alternative should the court not require specific performance from the said Sabine Parish School Board, under said contract with petitioner, that he should be restored to the situation in which he was, before the contract with the Sabine Parish School Board was made, by causing the said Sabine Parish School Board to pay your petitioner the full sum of Three Hundred Six and no/100 ($306.00) Dollars for this, to-wit: The cash payment of $106.00 on said truck; $75.00, the cost of special body constructed for said truck; $125.00 attorney’s fees incurred because of this suit; and in addition thereto, the assumption by ■the said Sabine Parish School Board of notes in the sum of $550.00 given by petitioner in payment of the balance due on said truck, and all costs of this suit, and decreeing said Sabine Parish School Board to be the owner of said truck.”

The exception of no cause or right of action is founded on .the proposition that no special statute of this state, the general law or the jurisprudence, authorizes the defendant, the Sabine parish school board, to delegate the powers, vested in it by the Legislature, to contract for the transportation of school children.

The statute which empowers the school boards of the several parishes to provide transportation for school children reads as follows:

“That the Parish school boards, shall have the authority to provide .transportation for children attending any school approved by the State Board of Education for children living more than two miles from a school of suitable grade.” Section 29, Act No. 100 of 1922, as amended by Act No. 202 of 1928.

A public board is constituted to act in ■the interest of tbe public welfare as a deliberative body with each of its members assisting the board to arrive at a conclusion which reflects the result of their united wisdom and experience. The board alone, therefore, must finally determine every subject committed to its discretion and judgment.

The general rule, succinctly stated, is that legislative and discretionary powers, devolved by law on a public board or governing body politic cannot be delegated or referred to the discretion and judgment of its subordinates or any other authority. A contrary rule prevails, however, as to ministerial duties or administrative functions of such board or body.

While the rule as thus stated' is not without exception in the jurisprudence, the general principles involved which underlie it are fundamental, and of well-nigh universal application. Cooley on Constitutional Limitations (7th Ed.) page 293; McQuillan on Municipal Corporations, secs. 393, 399 and 1279; City of Shreveport v. Herndon, 159 La. 113, 105 So. 244; State v. Garibaldi, 44 La. Ann. 809, 11 So. 36; State v. City of Shreveport, 124 La. 178, 50 So. 3, 134 Am. St. Rep. 496; Gauthier v. St. John the Baptist Parish School Board, 5 La. App. 570.

The act of the Legislature above quoted which confers the power and authority, and imposes, the duty on the school board to provide for the transportation of school children, is general in its. terms. The method by which the purpose of the act is to be accomplished is not specified, and is therefore impliedly committed to the discretion of the board.

Mr. A. B. Cates, acting under the authority of the resolution, as set forth in the petition, contracted with the plaintiff in the name of the defendant board, thereby exercising its power to contract, and substituting his judgment and discretion for that of the board in determining the person to be employed as driver of the transfer route, and the compensation to be paid for that service.

Clearly, the action of the defendant board-in delegating its power .to contract with reference to a matter in which it was necessary to exercise a discretion, and in referring the exercise of that discretion to an individual, is without statutory authority or other legal sanction.

“The common council cannot, however, in the absence of legislative authority, delegate its power to contract to a board, committee or officer where the exercise of discretion in making the contract is necessary.” Excerpt from McQuillan, Municipal Corporations, sec. 1279.

It is not contended that the contract entered into by Mr. Cates, was subsequently ratified by the school board, but, on the contrary, it is alleged in the petition that the board entered into a contract with another person to drive the route in question; which action by the board, of course, repudiated the alleged contract with plaintiff.

As Mr. Cates was without legal authority to bind the defendant school board, the contract which he made with the plaintiff was without legal effect, and the plaintiff is not entitled to the relief sought in the premises.

We are of the opinion that the exception of no cause or right of action was correctly sustained, and the judgment appealed from is .therefore affirmed.


text:
    Nos. 4100, 4149
    (Consolidated)
    Second Circuit (Second Division)
    SMITH v. VAN ARSDALE ET AL.
    (March 16, 1932. Opinion and Decree.)
    Stewart & Stewart, of Minden, attorneys for plaintiff, appellee.
    Watkins & Watkins and 'John T. Campbell, of Minden, attorneys for defendants, appellants.
   STEPHENS, J.

On October 3, 1927, B. W. Myrick sold to Pat Van Arsdale a certain ninety acres of land in Webster parish, La., for the sum of $1,350. The purchase price was represented by two promissory notes, each for the sum of $675, signed by the vendee and payable to the order of the vendor, and due respectively October 15, 1928, and October 15, 1929. The instrument of conveyance stipulated a special mortgage on the property in favor of the vendor or any future holder of the notes, and it was agreed therein by the purchaser that he would not alienate, deteriorate, or incumber the property to the prejudice of the mortgage.

The vendor Myrick transferred the notes by indorsement to Dr. R. W. Smith, who became the holder thereof in due course, for value received, before maturity.

This suit was brought by Dr. Smith against Van Arsdale as maker, and My-rick as indorser, of the notes, for the purpose of foreclosing the mortgage by ordinary process, and correcting an error of description in the deed of the land conveyed and mortgaged.

The defendant Myrick answered alleging payments by Van Arsdale to plaintiff in excess of the amount of the notes; and, further, that Van Arsdale had cut and removed .timber from the mortgaged property with the knowledge and consent of plaintiff, Dr. Smith, of the value of $1,568.40; and that he was thereby discharged from liability to plaintiff as indorser.

The defendant Van Arsdale before the institution of this suit had permanently left the state. A curator ad hoc was. appointed to represent him, who filed an answer pleading the discharge of the notes-by payment.

The right of plaintiff to have the description of the land corrected was not contested by either defendant.

A trial of .the case in the district court resulted in a judgment in favor of plaintiff and against both defendants as prayed for; the judgment, however, against Van Arsdale being'in rem only.

The defendant Myrick applied for and obtained orders of appeal, suspensive and devolutive, on March 20, 1931, and the transcript was filed in this court April 17, 1931, under the number 4100.

On June 5, 1931, the defendant Van Arsdale was granted orders of devolutive appeal on motion of his curator ad hoc; and, upon the transcript being lodged in this court, it was numbered 4149. The appeals were ordered consolidated for trial.

The district judge concluded that the defendants failed to sustain the burden of proving payment of the notes. In this conclusion we fully agree. The notes were filed in the record and bore no evidence of payment. Dr. Smith testified that they had not been paid, and that Van Arsdale owed him a considerable sum of money in excess of their face value. In support of this statement, he submitted written evidence of loans to Van Arsdale, during their business, relations from 1925 to 1929, of sums aggregating $2,460, which amount does not include the $1,350 herein sued for. One thousand thirty dollars of the $2,460 loaned is evidenced by notes held by Dr. Smith without notation of payment thereon, and the remainder of that sum is evidenced by canceled checks payable to Van Arsdale and bearing his indorsement.

The total amount set up in defendants’ answers as money paid to Dr. Smith during his business relations with Van Arsdale was $1,887, itemized as follows:

Gulf stock paid through Bank of Min-den _____________________________________________________________$ 967
Paid by Phillip Holly______________________________ 200
Paid by Van Arsdale________________________________ 120
Installments paid by Van Arsdale out of salary — $50 per month for 12 mos. 600
$1887

Dr. Smith testified, and it was not refuted, that it was understood by Van Arsdale that the payments that he made from time to time were .to be applied to his indebtedness which was not evidenced by notes.

If it be conceded therefore that all of the alleged payments were supported by definite satisfactory proof (in our opinion they were not), the defendants have failed to establish that the notes sued on were paid, either wholly or in part.

There is definite and satisfactory proof in the record, however, that timber was cut and removed from the mortgaged property with the knowledge and consent of the plaintiff, the holder of the notes, and without the consent of the defendant My-rick, the indorser thereon.

Myrick testified that he did not consent to the removal of the timber. His evidence is undisputed.

Dr. Smith testified bn this issue as follows :

“By the Court:
“Q. I want to ask you about this timber, Dr. Smith, I want to ask you, Doctor, if you consented for Mr. Yan Arsdale to sell the timber?
“A. He was living up there at the time, he lived somewhere around there, and had charge of the property, and he would come to me and tell me that he wanted to clean up some of the land, and he had a chance to sell timber for enough to pay for the work and it would improve the land. In other words he talked of it that way, it would be an improvement put on the land. I told him to go ahead and do what he pleased with it.
“Q. All right, this is all.
“A. I told him to go ahead and do what he pleased as long as he had it in his charge. You understand I didn’t have the land in charge then.
“Q. Yes, but you had a mortgage on it and I want to know whether you consented?
“A. I consented for him to do as he pleased as long as he was up there and I think he mighty near did it.”

The release of the timber by the plaintiff unquestionably operated as an impairment of the mortgage security, and the indorser Myrick was discharged to the extent of the value of the security released. Union National Bank v. Cooley, 27 La. Ann. 202.

The rule of law applicable to the facts here existing is stated in 8 Corpus. Juris, Bills and Notes, sec. 861 h, as follows:

“The surrender or release by the holder of a bill or a note of any security which he has received from the acceptor or maker, for , the payment of the instrument, operates as a discharge of indorsers to the amount of the security so surrendered, provided the indorsers’ liability has not become fixed, and they do not consent thereto. * * *”

The evidence discloses that timber from the mortgaged property was sold by Yan Arsdale as follows:

Pulp wood. — 320 cords at 60c per cord ________________________________________________________$192.00
Cross ties ________________________________________________ 30.00
Telephone poles ____________________________________ 8.00
$230.00

It was also -shown that 5,000 feet of logs were sold, but the price or value per thousand feet was not proven; therefore, that item cannot be included in determining the depreciation of the security.

In our opinion, .the judgment against the defendant B. W. Myrick should he amended and reduced from the principal sum of $1,350 as shown therein, to the principal sum of $1,120; and, as thus amended, the judgment against both defendants should be affirmed, and it is so ordered.


author: McGREGOR, j.

text:
    No. 4101
    Second Circuit
    WEST v. LIFE & CASUALTY INS. CO. OF TENNESSEE
    (March 16, 1932. Opinion and Decree.)

      Bryan E. Bush, of Shreveport, attorney for plaintiff, appellant.
    C. F. Currier, of Shreveport, attorney for defendant, appellee.
   McGREGOR, j.

On March 28, 1930, the defendant issued an intermediate twenty-payment life policy for the sum of $500. The name of the insured was Jeff Nash, and the beneficiary designated was Edna West, the plaintiff herein, who .was described in the policy as being the daughter of the insured.

On April 9, 1930, Jeff Nash died, and in due course of time, on June 17, 1930, Edna West prepared and mailed to the defendant the usual proof of death on printed forms evidently furnished to her at her request. Payment on the policy was refused, and this suit to collect the amount of the policy was filed on September 4, 1930.

The defendant filed its answer to plaintiff’s petition on October 4, 1930. In this answer it was admitted that the policy was issued in the names and for the amount set out in the petition, but it was alleged that the issuance of the policy was obtained through fraud practiced upon the defendant by the plaintiff and other persons. It was admitted that Jeff Nash, the person named as the insured in the policy issued, died as alleged in the petition, but that he (the said Jeff Nash) had never made application to the defendant for insurance and had no connection or business dealings of any kind with it. It is alleged that at the time it is claimed that Jeff Nash was well and in the home of the plaintiff making the application for the insurance, he was critically ill with cancer of the pancreas, and was a patient in the Charity Hospital in the city of Shreveport. It is further alleged that, at the time when the deceased was alleged to have been well and in the city of Shreveport taking a physical examination for the insurance, he was bedridden at his home near the village of Harmon, in the parish of Red River, and that he remained there until he died on April 9, 1930. It is specially alleged that with the connivance of the plaintiff, on February 18, 1930, a negro man of comparative youth and of sound health, whose name is unknown, but who falsely claimed that his name was Jeff Nash and that he was the father of Edna West, the plaintiff herein, made application to defendant for a twenty-payment life policy in the sum of $500. It is further alleged that subsequently, on March 24, 1930, a negro man of comparative youth and sound health, who was not Jeff Nash, took a medical examination required by the defendant at the hands of defendant’s duly authorized examining physician and was duly passed and approved as a suitable risk for insurance, and that at the said examination the said unknown person falsely represented himself as being Jeff Nash, that, because of the fraud practiced upon it in the substitution of a strange negro, or strange negroes, who made the application and took the medical examination in the name of the said Jeff Nash, it was induced to issue the policy of life insurance sued upon, and that, because it was thus fraudulently obtained by the said Edna West, who caused herself to be named beneficiary therein, the said policy is null, void, and of no effect.

A further defense is set up in the defendant’s answer to the effect that, whenever and to whomever the policy was delivered, the real Jeff Nash was not in good health, but was suffering from a fatal disease; that in the application, which was made a part of the policy attached to plaintiff’s petition, willful false statements, were made as to the condition of Jeff Nash’s health, the date of his last sickness, the existence of physical infirmities, hospital treatment received by him, and his age. It is alleged that during the entire period covering .the making of the application, the taking of the medical examination and the issuance and delivery of the policy sued on, the said Jeff Nash was slowly dying with a malignant disease and was in such a condition that he would not and could not have been accepted as a risk by any insurance company.

It will be readily seen that the defense set up is three-fold: (1) That there was a substitution of parties for Jeff Nash in the application and in the medical examination. (2) That .the real Jeff Nash was. not in good health at the time the policy was delivered. (3) That there were fraudulent misrepresentations and false statements in the application with reference to the physical condition, age, and identity of Jeff Nash.

The plaintiff filed a motion to compel the defendant to elect which of these three defenses it would stand on at the trial of the case, and it answered the motion by electing to stand upon its defense that there was a substitution of parties for Jeff Nash in the application for the insurance and in the medical examination on which the policy was issued.

At .the end of the first trial of the case judgment was rendered in favor of the plaintiff. However, the case was reopened and further testimony was. introduced. At the conclusion of this second hearing, judgment was rendered in favor of the defendant and the demand of the plaintiff was rejected. From that judgment the plaintiff is prosecuting this appeal.

OPINION

The only Question at issue in this case is whether Jeff Nash, whose death is admitted and proved, was the person who made application for the policy sued on and who took the medical examination on the basis of which the policy is admitted to have been issued. The application on which the policy was issued was filed out on February IS, 1930, and according to it Jeff Nash was born April 15, 1880, which would make him 50 years, old at the time. The agent who took the application stated that at the time it was written he remarked to the plaintiff that the applicant was “right young-looking” to be her father. In the body of the application it was stated ■that the applicant would take his medical examination two days later, on February 20. The defendant’s examining physician was notified concerning the applicant and made several efforts to get him to his office, but did not succeed until over a month later, when the plaintiff’s husband took a rather young-looking negro man to the doctor’s office and had him examined as Jeff Nash. This man gave his name as Jeff Nash, and his age as 50 years. The physician who made the examination testified at the trial of the case and stated that the man he examined was in perfect health and appeared to him to be not over 45 years of age.

The Jeff Nash who died and whose identity has been established, was a patient in the Charity Hospital from February 12, 1930, until March 2, 1930, suffering from cancer of the pancreas. This fact is established by the records of the hospital, by his wife, Clara Nash, and by Arthur Wilson, one of his neighbors and church brothers. The home of the deceased was at Harmon in Red River parish, and there is not the slightest possibility that he could have been preseht in Shreveport at plaintiff’s residence at a time anywhere near the date of the application. On February 18, 1930, the very day on which the application was written, Jeff Nash was in the Charity Hospital, and the nurse’s record for that day, beginning at T o’clock a. m., and running through to 12 o’clock p. m., shows twenty-two separate and distinct entries relative to his condition and presence in the hospital. It would be the height of absurdity to presume that he could have been absent from the hospital on that day and in the plaintiff’s home making this application. Furthermore, the man who was present there as the applicant appeared to be in good health and gave his age as 50 years but looked much younger. Jeff Nash was a sick man on that day, and could not have had the appearance of a healthy man. Also he was. an old man, 70 years of age, the date of his birth, as shown by his family Bible, being September 20, 1861, instead of April 15, 1880, as stated in the application. Another important bit of evidence is the fact that plaintiff designated the real applicant as being her own father and gave the information that he was 50 years old. In her statement signed by her when she was making proof of the death of Jeff Nash, she stated that she herself was born May 16, 1892. That makes her purported father just 12 years, 1 month and 1 day older than she, which is a most preposterous statement and manifestly untrue.

It is a very significant fact that it was so difficult for the defendant’s examining physician to contact the applicant in order to make the required medical examination. The excuse offered was that he was. absent from the city in Dallas, Tex., on church duties and visiting a niece. As a matter of fact, the real Jeff Nash did not go to Dallas at any time. He left the Charity Hospital on March 2, 1930, in a hopeless condition and went to. his home at Harmon and remained there until April 9, 1930, the date of his death. On March 24, 1930, the date of the medical examination, when a well man who looked to be not over 45 years old was examined by the defendant’s physician, Jeff Nash was at his home, one hundred miles away from Shreveport, at the point of death. It is certain that the man who was examined was a comparatively young man in good health and was not Jeff Nash. Under the evidence it is perfectly patent that the plaintiff knew from the beginning that the man who made application and who was examined by the defendant’s physician was. not the Jeff Nash whose death and identity were established at the trial. Her actions throughout the entire transaction, from beginning to end, were fraudulent and constitute an attempt to collect money on account of the death of a man 70 years of age, who was known to be hopelessly stricken with disease, by having a much younger and healthy man secure a life insurance policy in his name, knowing full well that the real Jeff Nash would soon be a dead man.

When Dr. Leroy Scott, the defendant’s examining physician, was offered as a witness for the purpose of testifying as to what man he examined, and when the examination took place, counsel for plaintiff made the following objection which was overruled by the trial judge:

“By Mr. Bush: I object to that for the reason that under the law, — under Act 227 of 1916, that the application and medical examination is not attached to the policy and we object to testimony from this witness with reference to the examination of Jeff Nash—
“By the Court: The objection is overruled and the court will hear the testimony, of the witness for the purpose of ascertaining the identity of the person who was examined as Jeff Nash with reference to this policy — the testimony will be admitted to shed whatever light it may on the question of the identity of the person who was examined for insurance in this case.
“By Mr. Bush: I will note my objection — this evidence is objected to as it is immaterial, irrelevant and inadmissible under Act 227 of 1916, for the reason that there is no application and no medical examination or certified copy thereof attached to the policy—
“By the Court: Let the objection be overruled.”

In his brief counsel for plaintiff urges this objection very strenuously. A careful reading of Act No. 227 of 1916, relied upon, shows that it has no reference whatever to medical examinations, and does not require that they should be indorsed upon or attached to the policy. The act requires that life insurance policies shall contain the entire contract between the company and the assured, and provides:

«* * * And all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement or statements [purporting to be made by the insured] not endorsed upon or attached to the policy when issued shall be used in defense of a claim under the policy unless contained in a written application and unless a copy of such statement or statements be endorsed upon or attached to the policy when issued. Any waiver of the provisions of this section shall be void.” (Italics ours.)

Medical examinations do not constitute any part of the contract between the life insurance company and the insured, nor do they contain any statements made by the insured. In support of his contention that no testimony bearing on the medical examination can be introduced by the defendant in its effort to resist the payment of a life insurance policy, counsel cites three cases. Eddins v. National Life & Accident Insurance Co., 19 La. App. 472, 133 So. 816, 818. In that case the statement was made that “* * * the defendant can take no steps to void the policy ab initio on account of any false representations contained in it because of the fact that the application and examination do not appear to have been attached to the policy at the time it was issued. See Act No. 227 of 1916.” The use of the word “examination” in that statement was superfluous and inadvertent, as the act clearly is confined to the application which contains answers and statements made by the insured. Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A. L. R. 1521. This case can have no application to the case at bar, for the reason that in that case there was no omission to make the entire application a part of the policy, while, on the other hand, no medical examination was required at all. Silver v. National Life Ins. Co., 6 La. App. 95. This case turned upon the fact that there was no medical examination at all. Under Act No. 97 of 1908, where the insurance company does not require a medical examination, it waives its right to attack the correctness of the applicant’s statements made in the application. No such condition exists in the case at bar.

But all discussion of Act No. 97 of 1908, or of Act No. 227 of 1916 is out of place in the discussion of this case. No effort is being made here by the defendant to show that the person whose application was taken made any false statements with reference to his age or his physical condition. It is admitted that he was of the age stated and that he was in perfect health. No attack is made upon the truthfulness of the medical examination or of the application. The only object sought by the defendant in putting its examining physician on the stand is to show that the man he examined was a comparatively young man in good health, a fact which is admitted by the plaintiff herself. Regardless of any possible application of the two acts referred to, and regardless of whether either or both of them were recorded or not, the defendant would have a right, upon alleging fraud, to show that the man whose death has been proved and admitted was not the man that made the application or who was examined.

For the reasons assigned, the judgment appealed from is affirmed; the plaintiff to pay all costs of both courts.


author: TALIAFERRO, J.

text:
    No. 4070
    Second Circuit (Second Division)
    REED v. ROBBINS
    (March 16, 1932. Opinion and Decree.)
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
    C. B. Prothro, of Shreveport, attorney for plaintiff, appellee.
   TALIAFERRO, J.

Plaintiff seeks to recover of defendant judgment for $156.62 alleged balance due on open account for groceries. Defendant denies that he owes plaintiff any amount. He admits that at one time he did owe the account sued on, but that in March, 1930, he paid same in full by selling to plaintiff a motor car, subject to mortgage to the knowledge of plaintiff, the terms of which sale being that said account should be, and was, canceled, and in addition plaintiff agreed to pay $97 to defendant in cash or groceries, but he failed to comply with this part of the sale. Defendant prays that plaintiff’s suit be dismissed and for judgment in re-convention for $97.

The lower court gave judgment for plaintiff and defendant appealed.

The testimony of the respective sides is hopelessly conflicting and irreconcilable.

Plaintiff’s version of the transaction between him and defendant involving sale of the automobile is this: That defendant represented to him that the chattel mortgage against the car amounted to $360 and he was willing to sell the car to him if he (plaintiff) would assume this mortgage indebtedness and cancel out the grocery account sued on; that he (plaintiff) agreed to this proposition, took possession of the car about April 1, 1930, delivered to defendant the various bills making up the account, and the following day drove over to Minden in Webster parish to ascertain from the finance company the exact amount held by it against the car; that he then learned, to his surprise, that the mortgage debt amounted to $445.50 and not $360, as declared by defendant; that he secured written statement showing the amount due and on that day called it to defendant’s attention and he agreed to come to plaintiff’s store to make an adjustment; he made other efforts afterwards to see defendant about the difference but was unable to contact with him, and finally he carried the car to his residence and left it there. This was on April 14th or 15th. The finance company, a few days later, found the car there and repossessed it. Plaintiff’s position is that he was not willing to take over the car for the true mortgage indebtedness against it and release defendant from payment of the account; therefore, after defendant would not adjust the difference, the car was returned to him. Plaintiff is corroborated by the testimony of his wife and by a Mr. Green, kinsman of the wife, with regard to the price of the car and terms of the trade with defendant.

Defendant testified that plaintiff assumed payment of the balance due on the mortgage against the car, regardless of the amount, and in addition agreed to pay him $97 in cash or groceries and -release him from the account. He states that he had paid out on the car’s price $338 but was willing to knock off $75, leaving $263, from which the account was to be deducted. If this version of the matter is correct the car would have cost plaintiff $708.50. The initial price when sold in August, 1929, was $769.

It appears that plaintiff was only willing to pay $480 for the car, and when he and defendant first began discussing the trade (about middle of March) the account showed a balance of around $120. However, as the trade progressed the grocery bill grew larger, and at date the trade was closed it had reached the amount sued for. Plaintiff testified that in order to clear the account and enable defendant to start out with a clean slate, he did agree to include the total "of the account as it stood when the car trade was closed.

At the date the trade was closed defendant was in arrears on the car notes for more than a month and the finance company was pressing for payment. He was also unable to. meet his grocery bill, all due to lack of regular employment for some months immediately prior.

It is argued by defendant’s counsel that as plaintiff kept the car for nearly two weeks after knowing the true amount due on the mortgage debt against it that fact is convincing evidence that the sale was made on the terms claimed hy defendant. Plaintiff meets this contention by saying he was endeavoring to have defendant adjust the difference of some $85, and had little success in getting in touch with him. Mrs. Robbins testified that plaintiff did call several times for Mr. Robbins immediately before the car was returned.

It is obvious defendant was anxious to dispose of the car to plaintiff and rid himself of the obligation of paying the balance due on it and at same time clear the account due plaintiff; and it is likely plaintiff welcomed the chance to acquire the car for use in his business, at a fair price, and collect defendant’s account.

Plaintiff is shown tq be a man of some business experience, and it does not seem reasonable that he would assume payment of the balance due on the car without having some information, deemed by him to be dependable, fixing the amount he was obligating himself to pay. Mrs. Robbins testified that as the trade for the car was being closed out, in fact the time delivery was made to plaintiff, that she remarked to him that the notes unpaid against it were more than he thought. It was probably due to this remark that plaintiff, on day following, drove over to Minden to ascertain the exact balance against the car. It is also unlikely that he -would be willing to pay $708.50 for a Ford car, costing originally $769, which had been in use for eight months. These circumstances weigh against defendant’s contention, and in addition plaintiff’s version of the details of the trade for the car is corroborated by two other witnesses, while the testimony of defendant virtually stands unsupported by that of other witnesses or circumstances.

The lower court rejected defendant’s contention and accepted plaintiff’s, and we think ruled correctly.


text:
    No. 4144
    Second Circuit (Second Division)
    WEATHEY ET AL. v. BAILEY ET AL.
    (March 16, 1932. Opinion and Decree.)
    Boone & Boone, of Many, attorneys for plaintiffs, appellants.
    Ponder & Ponder and Fraser & Carroll, of Many, and W. M. Phillips and C. F. Currier, of Shreveport, attorneys for defendants, appellees.
   STEPHENS, J.

The appellees have appeared and moved to dismiss the appeal in this cause, for the reason that an incomplete transcript has been lodged in this court. It is averred in the motion that both the appellants and the appellees offered and filed in evidence numerous documents and instruments of record in Sabine parish, Louisiana, which are pertinent and necessary to the proper review and determination of the case in this court; and that none of these documents or instruments, or copies thereof, are included in the transcript.

The incomplete condition of the transcript is apparent, and the fault seems to he with the clerk of the trial court. If the certificate of the clerk disclosed that the documents were omitted from the transcript, his fault would he imputable to the appellants; and in fact might be considered as evidence that the fault was solely that of appellants. But the clerk states in his certificate that the transcript includes all pleadings, evidence and documents filed in the cause.

The appellants were somewhat tardy in ascertaining the incomplete condition of the record, but their laxity in this respect was not so great, we think, that it would justify the dismissal of the appeal.

The motion to dismiss is therefore overruled; and it is ordered that the plaintiffs-appellants herein cause to be filed in this court within thirty days from the day on which this opinion is filed, a supplemental transcript, in which shall be included all of those documents and instruments, or copies thereof, which were omitted from and should have been included in the original transcript lodged in this court. The right is reserved to the defendants-appellees to renew their motion to dismiss the appeal in the event of the refusal or neglect of the plaintiffs-appellants to comply with this order.


author: McGREGOR, J.

text:
    No. 4152
    Second Circuit
    LANSING ET AL. v. MILLER ET AL.
    (March 16, 1932. Opinion and Decree.)
    Harold W. Hill, of Alexandria, attorney for plaintiffs, appellants.

      White, Holloman ■& White, of Alexandria, and Jess Johnson, of Baton Rouge, attorneys for defendants, appellees.
   McGREGOR, J.

During the week beginning April 7; 1930, a show or carnival aggregation under the name of “Ralph R. Miller Shows” was set up in the city of Alexandria for the purpose of furnishing amusement and entertainment to the public. On Tuesday, April 8, 1930, at about 6 o’clock p. m., while the plaintiffs were sitting down to supper in the dining room at their home, a bag filled with sand fell upon the roof of their house, making a loud noise. Almost at the same time a balloon also fell upon the same roof. The noise of the two objects falling in quick succession upqn plaintiffs’ -house was very similar to that of an explosion. The plaintiffs were naturally excited and ran quickly to the front of the house and into the yard to discover what had happened. It was found that the sand bag had been broken by the fall and that sand was scattered over the roof of the building and on the front porch. The black, sooty, collapsed bag of the balloon was on the roof. Several of the asbestos shingles of the roof were broken and the entire building was besmirched with soot. The home was new and modern and built of brick, and was naturally the pride of the plaintiff, Mrs. Lansing. Seeing her beautiful new home thus covered with soot and finding that it could not be cleaned and that its beauty was permanently marred, she was naturally upset and suffered a nervous collapse.

In connection with the amusement and entertainment furnished by “Ralph R. Miller Shows” there was a balloon ascension and a parachute jump each afternoon or evening. As soon as the parachute jumper left the balloon it was so- arranged that a bag filled with sand would cause it to become unbalanced and to turn over and permit the inflating gas to escape, with the result that the sand bag and balloon would quickly descend to the ground almost immediately at the spot where the parachute jumper had left it.

Knowing that there was such a balloon ascension scheduled by “Ralph R. Miller Shows” the plaintiffs naturally presumed that that was where the balloon and sand bag came from, and so this suit was brought. by them against Ralph R. Miller as owner of the show, setting up the above facts. • Damages were asked in the name of the husband, Evan E. Lansing, in the sum of $250 on account of the injury done to the house, and for $500 in the name of the wife, Mrs. Dixie Lansing, for personal injury sustained by her on account of the happening.

In their petition the plaintiffs alleged that the balloon act was put on by the defendant under the direction and management of one Dr. O’Brien, employee and manager of the show. The defendant answered plaintiffs’ petition and denied practically every allegation contained, in it. He specially denied being the owner of the show and alleged that his wife, Mrs. Cleta Parker Miller, was the owner of it as her separate paraphernal property and that his only connection with it was as agent of his wife in the management and operation of the property. It was also specially denied that the defendant or his wife owned a balloon or sent one up in connection with the show. It was admitted that on the day and at about the time alleged in plaintiffs’ petition a balloon did ascend from the grounds of “Ralph R. Miller Shows,” but it was denied that it was sent up by Dr. O'Brien or that the show had any connection with the flight. It is admitted that a balloon flight was advertised to take place in connection with the show at the given time. Answering further, the defendant alleged that his wife, Mrs. Cleta Parker Miller, ¡purchased with her own paraphernal funds a merry-go-round, a ferris wheel and a chair plane, and that no other appliances belonged to her but that, as is usual and customary, owners of side-shows, carnivals, concessions, games, concerts and other attractions set up their respective appliances and stands in close proximity to those of his wife. All licenses, advertising, lights and power are furnished by Mrs. Miller, and for these she received certain fees and commissions. With reference to the balloon flights, it was alleged as follows:

“That the said Mrs. Cleta Parker Miller, through respondent as agent, contracted with one R. L. Coty to make a certain number of balloon flights, one each date, in a balloon which was owned and operated entirely by the said Coty. For these flights the said Coty received a specified consideration. The said Coty owned his own balloon, he owned his own transportation, he employed his own labor and equipment and went about making these flights in his own way and without any control or management whatever on the part of Mrs. Cleta Parker Miller or her agent. The said Coty advertised by signs painted on his truck and automobile and otherwise that he was a ‘professional balloon rider.’ He contracted with show people, real estate promoters to promote the sale of lots in subdivisions and otherwise and with anyone who may desire to draw crowds to certain localities for various purposes. The said Coty operated his balloon for the ‘Ralph R. Miller Shows’ entirely as an independent contractor.”

After the defendant Ralph R. Miller filed his answer denying the ownership of the show bearing his name, the plaintiffs amended their petition and made Mrs. Cleta Parker Miller a party defendant, renewing all the allegations of their former petition, and asked judgment against her and Ralph R. Miller, her husband, in so-lido, on the ground that he had held himself out as owner of the show. This supplemental petition was answered jointly by the two defendants in practically the same words as the original petition was answered.

It was on April 8, 1930, that the incident on which this suit is based occurred. The first petition was filed May 1, following, and the answer of the defendant was filed on June 24, 1930. The supplemental petition was filed on October 1, 1930, and this was answered on November 5, following. The case was set for trial on/ three different occasions and was finally reached, taken up and tried on March 23, 1931, nearly one year after it was first filed.

At the trial all the evidence was directed toward the proof of the falling of the balloon and sand bag upon the house, the damage done to the house and the effect of the occurrence upon the physical condition of the plaintiff, Mrs. Lansing. Not a word of testimony was introduced to show any connection between the balloon and the defendants. For aught that the testimony shows, this balloon may have come from a great distance and may not have ascended from the defendants’ show grounds. It is true that in the defendants’ answer it is admitted that on the day and date and about the time that plaintiffs allege that a balloon fell upon their home, a balloon did ascend from the show grounds, but they specially deny that it was owned by either of the defendants or that it was sent up by them or by any of their agents or employees. The plaintiffs closed their case with the evidence in this shape. Seeing that no testimony had been introduced that in any manner even remotely connected the defendants with the balloon and sand bag described by the plaintiffs, counsel for defendants declined to introduce any testimony and submitted the case. There was judgment for the defendants and the plaintiffs’ demands were rejected, and their suit was dismissed. Counsel for plaintiffs filed a motion for a new trial based on the allegation that the judgment was contrary to the law and the evidence. No particular was set out in which the judgment was wrong. This motion was overruled, the formal judgment was then signed in accordance with the finding of the court, and the plaintiffs appealed.

In his brief counsel for plaintiffs states:

“On the trial of the case in the lower court, as the record indicates, plaintiffs introduced ample evidence to sustain their claim for damages, but due to misapprehension on the part of counsel for plaintiffs, failed to introduce evidencie to show that the balloon in question ascended from the grounds of the Ralph R. Miller Shows, or was the property of defendants, or under their control. This misapprehension on the part of plaintiffs’ counsel was due to the fact that counsel misread thé answers of defendants and was under the impression that the answers admitted the ownership of the balloon and the ascension of the same on the day complained of. Such being the case, plaintiffs’ counsel closed his case without placing either of the defendants on the stand as under cross examination expecting to cover that part of the • evidence on cross examination of these witnesses when placed on the stand by the defendants. Defendants’ counsel, realizing plaintiffs’ error, upon close of plaintiffs’ case, directed the attention of the trial judge to the failure, of the plaintiffs to offer evidence connecting the balloon with defendants, and as a result thereof, the' trial judge rendered judgment rejecting plaintiffs’ demands.
“Counsel for plaintiffs then filed a motion for a new trial, setting forth as a reason therefor that the judgment thus rendered was contrary to the law and the evidence in that a judgment of absolute rejection of plaintiffs’ demands under the circumstances was erroneous, and that the judgment, if against plaintiffs, should have been one of non-suit and not such a judgment as to entirely cut off plaintiffs from their rights to prosecute this action against these defendants. The trial judge refused to grant the motion for a new trial and plaintiffs lodged this appeal.” (Bold type ours.)

This quotation from plaintiffs’ brief states clearly their position before this court. It plainly states and admits that no evidence was introduced to show that the balloon in question either ascended from the show grounds or was the property of the defendants or under their control. The only explanation given for the failure to introduce such testimony is that plaintiffs’ counsel misread the answers of defendants and was under the impression that they admitted the ownership of the balloon and its ascension on the occasion complained of. It is inconceivable to us that any one could so misread these answers as to get such an impression therefrom. On the contrary, the very opposite is true. Defendants admitted that a balloon did ascend from the show grounds on that date, but they deny that it was the one that did the damage complained of and denied owning it or having any control thereof. In fact, the burden of the defense is that every matter alleged in the two petitions is denied outright and that the outstanding contention is that the balloon was owned and operated by an independent contractor in such a manner as to free defendants from all liability for any accidents that might happen in connection therewith.

So, when the plaintiffs failed to introduce any testimony whatever on these most material points in the case, it was not necessary for the defendants to offer any testimony at all. The trial judge rendered the only possible judgment under the circumstances. Counsel had ample opportunity before the trial to read the pleadings correctly and to get a correct view thereof. The defendants were both present in court and could have been called for cross-examination before the plaintiffs closed their case. They would not have to wait until these defendants were on the stand as witnesses in their own behalf. They could have called them at any time. In fact, the plaintiffs should not have (postponed making out any important feature of their case to the time when the case would be with the defendants. We feel sure that, if, as soon as he saw that defendants were going to close their case without introducing any testimony, counsel had asked permission to reopen the case for the purpose of cross-examination of the defendants in order to prove an important point that he had overlooked up to that time, the trial judge would have granted the request without question. This would have been the exercise of a discretion wisely vested in the trial judge. But we fail to see where the court should be required to grant a new trial on these grounds. Counsel says that:

■ “All the jurisprudence of Louisiana is in accord with the contention of plaintiffs that where there is a failure on the part of plaintiff to introduce sufficient evidence to prove his case that a judgment of non-suit should be entered.”

We cannot subscribe to this doctrine. If this were true a non-suit should be entered in practically all suits that the plaintiffs fail to win, and there would never be any end to litigation except when the plaintiff wins. The equities in this matter are just as strong in favor of the defendants as they are for the plaintiffs. The defendants were present in court with all their witnesses ready to answer the demands of the plaintiffs. They all live at different places. It would be a great injustice, even an impossibility, tq require them to reassemble for the purpose of another trial, especially when no fault or blame can be ascribed to them or their counsel. The defense was couched in as strong and plain language as could be used. If the language used were ambiguous and if there were any real grounds for misapprehension as to the' meaning of the same, or if the defendants had misled the plaintiffs in any manner through their pleadings, we would not hesitate to grant the relief sought, but under the facts of the case as we see them we would not be justified in holding that the trial judge has erred in the exercise of the discretion vested in him by law.

For the reasons assigned, the judgment appealed from is affirmed, the plaintiffs and appellants to pay all the costs of both courts.


author: CULPEPPER, J.

text:
    No. 4195
    Second Circuit (Second Division)
    CATALANO ET UX. v. PRITCHARD
    (March 16, 1932. Opinion and Decree.)
    Argued before STEPHENS, TALIAFERRO and CULPEPPER, JJ.
    Cook & Cook, of Shreveport, attorneys for plaintiffs, appellants.
    Robert Roberts, Jr., of Shreveport, attorney for defendant, appellee.
   CULPEPPER, J.

This suit grows out of an automobile collision on Greenwood road in the city of Shreveport. Ernest Catalano and his wife, the plaintiffs, with their grandson, were traveling east in a Hupmobile roadster between 7 and 8 o’clock in the evening, October 7, 1930. Defendant, with his wife and mother-in-law, were, or had been, traveling west in a Ford car, having as his destination the plant of the National Ice Company, in front of which the collision occurred.

Mr. Catalano claims $58 for damages to his car, and reimbursement for the expense of moving it from the street. Mrs. Catalano claims $1,800 for pain and suffering, injuries to her nervous system, and shock, and $20 damages to a silk coat suit which was alleged to have been ruined. Defendant denies any negligence; set up, in the alternative, contributory negligence on the part of plaintiff, and reconvened for $59.70 damages to his car. There was judgment in favor of defendant, rejecting plaintiffs’ demands, and also judgment in defendant’s favor on his reconventional demand for $59.70, damages to his car. A new trial, however, was granted on plaintiff’s application, and judgment was then rendered rejecting not only plaintiffs’ demand but defendant’s reconventional demand as well. Plaintiffs have appealed and defendant has answered the appeal and asks that judgment be rendered in his favor on his re-conventional demand.

Mr. and Mrs. Catalanq. and a bystander, Mr. G. Colvin, testified for the plaintiffs. Mr. Catalano testified, that when he first saw defendant’s car he was from five to seven feet away. Mrs. Catalano testified that defendant’s car was coming so fast her husband did not have' time to get out of the way. Mr. Colvin, testifying for plaintiffs, said defendant’s ear .was stopped waiting for traffic to .go by, and that Catalano had plenty of room to pass between defendant’s car and the curb.

Mr. C. L. Wynne, deputy sheriff, and Mr. W. A. Thomas, a bystander, in addition •to defendant, his wife and mother-in-law, testified for the defendant. Mr. Wynne testified that he was behind Catalano’s car traveling in the same direction. He heard the collision, looked up and was “not much further away than from across this building.” He came up immediately after it happened. Catalano’s car was about ten feet from the curb after the collision, and defendant’s, Pritchard’s, was headed towards the ice plant. Witnesses asked Catalano what he was doing and Catalano “said he didn’t know, said he didn’t see him.”

W. A. Thomas was standing on the side-’ walk in front of the ice house, and saw the collision. Mr. Catalano, this witness said, was going at a pretty good speed and without any lights. Mr. Pritchard was fixing to turn into the ice house, but had stopped. Catalano, he said, was looking towards the ice house. There were about twelve feet between Pritchard’s car and the curb. He also heard Catalano say he didn’t see Pritchard until he hit him. Mr. and Mrs. Pritchard and Mrs; Hurst, defendant’s mother-in-law, testify that defendant’s car had come to a stop waiting for traffic to pass so that defendant could get into the ice plant, and that plaintiff was signaling with his left hand. All of the witnesses for the defendant testify that there were lights in front of the ice plant, at the filling station, and other., places op both sides of the street.

Catalano himself says that he was within from five to seven feet of the Pritchard car before he saw it; that, after he saw the defendant’s car he tried to stop but was too close and they just ran together. If Catalano did not see defendant’s car, as he says he did not, until he was within from five to seven feet of it, it was simply because he was not looking. - He certainly could have .seen it, by simply looking ahead. He is charged, therefore, with the duty of seeing what he should have seen, and what he could have seen by keeping a lookout.

A clear preponderance of the testimony shows, we think, that defendant had come to a stop with his hand out as a signal, awaiting traffic to clear so that he could move into the ice plant. He had stopped at a point where cars could go both to his right and to his left. Catalano had ample room to pass defendant’s car on the right going towards the city, but instead of passing to the right, as he should have done, the testimony shows that he headed almost straight into defendant’s car while it was standing still. The accident resulted, we think, solely because plaintiff’s attention was momentarily diverted from what he should have been doing, that is, looking ahead. Defendant was not in any respect at fault, was using every possible precaution to avert an accident, and would have done so but for Catalano’s act in running into him. It was the duty of Catalano to keep a constant lookout ahead while traveling along this city thoroughfare, and his failure to do so makes him solely to blame for the accident.

Plaintiff objected to the introduction of any evidence offered by defendant in support of defendant’s reconventional demand on the ground that “the pleadings are not sufficient to admit the proof.” This objection was sustained. The pleadings on this demand áre shown in paragraph 22 of defendant’s answer, which reads as follows:

“Defendant further, shows that, solely as the result of the said collision, his automobile was damaged, and he was forced to pay the sum of Fifty-nine and 70/100 ($59.70) dollars to restore said automobile to the condition in which it was before said collision.”

While defendant did not allege specifically upon the various parts of his automobile which were damaged, and the cost incurred in repairing or replacing such parts, and, for that reason he was not permitted under the court’s ruling to. go into the matter of the proof fully, yet he was permitted to testify to such an extent as to indicate clearly that quite a number of the parts of the automobile were damaged.

We think, therefore, that since defendant has been proven guilty of no negligence and since it is apparent that he has in fact suffered damages to his automobile, which, under his pleadings, he was not permitted to show by proof sufficient on which to base a judgment, his demand should not be rejected, but rather that a non-suit should be entered, in order that he may sue for same later, if he sees fit.

It is therefore ordered, adjudged and decreed that the judgment appealed from, in so far as it rejects the demands of the plaintiffs, be affirmed.

It is further ordered, adjudged, and decreed that the judgment as to defendant’s - reconventional demand be annulled and set aside, and it is now decreed that a non-suit be entered as to same.

It is further ordered that plaintiffs be condemned to pay all costs, including costs of appeal.


text:
    No. 4161
    Second Circuit (Second Division)
    T. DEFATTA & SONS v. HYDE (BAIN, Garnishee)
    (March 16, 1932. Opinion and Decree.)

      Irion & Switzer and Thos. M. Comegys, Jr., of Shreveport, attorneys for plaintiffs, appellants.
    Smitherman, Tucker & Mason, of Shreveport, attorneys for defendant, appellee (garnishee) .
   TALIAFERRO, J.

Plaintiff caused execution to issue on its judgment against defendant and made H. H. Bain, garnishee. The usual interrogatories were propounded to and served on him. He failed to answer the process within the legal delays, and judgment “pro confesso” was rendered against him for $112.28, the amount of the judgment against defendant, and signed'on May 1, 1931. On May 5th, within three judicial days of the signing of this judgment, the garnishee filed a motion wherein he averred that through oversight and inadvertence he did not answer the interrogatories served on him; that he is not indebted to defendant for any amount, but on the contrary at time of service on him defendant was indebted to him. He prays that the motion be filed and allowed, and that it be accepted in lieu of answer.

On May 19th the motion was taken up for trial, and, over the protest and objection of plaintiff’s counsel, was sustained; the court minutes reading:

“Motion granted. Judgment vs. garnishee set aside and motion to stand in lieu of answer.”

Forjnal judgment was signed, from which plaintiff appealed.

The garnishee has filed in this court a motion to dismiss the appeal on the ground and for the reason that the judgment appealed from was in effect one granting a new trial to the garnishee, interlocutory in nature, and not appealable from.

Plaintiff’s counsel argue that the judgment against the garnishee was a final judgment, .the property of plaintiff, and, under article 548 of the Code of Practice, not subject to be altered by the court.

The granting of new trials, timely applied for, is a matter largely lodged in the legal discretion of the .trial judge, and where the ends of justice will be best sub-served by favorable action thereon it is the obvious duty of the judge to grant them.

A judgment against a, garnishee, though rendered “pro confesso,” is a definitive judgment and subject to the same rules, with regard to motions for new trials, appeal, etc., as other judgments.

The garnishee in this case filed motion to set aside the judgment rendered against him timely, and in the exercise of the discretion vested in him .the judge of the lower court sustained it, which, in effect, amounted to a new trial. The court’s action was interlocutory in its nature, not working irreparable injury, and Therefore not appealable from. Code Prac., art. 566. McWillie v. Perkins, 20 La. Ann. 168; Wheeler v. Maillot, 15 La. Ann. 659.

In Joyce v. Nona Mills Co., 142 La. 934, 77 So. 854, the court said:

“By setting aside the judgment the judge in effect merely granted a new trial. This he could do within the three days allowed for application for new trial. C. P. arts. 560, 547.” Perry v. W. K. Henderson Iron Works & Supply Co., 16 La. App. 271, 133 So. 805.

Article 548 of the Code of Practice provides that a judgment, once rendered, becomes the property of him in whose favor it is given; and the judge cannot alter same, except in the mode provided by law. One of the methods of altering a judgment is by granting a new trial, when timely applied for. If no motion is filed for a new trial within the legal delays, then the judgment is final so far as the trial court is concerned, and it then becomes the property of him in whose favor it is rendered, not subject to change or alteration by the judge who signed it.

The motion to dismiss the appeal herein is sustained, and, accordingly, the appeal is dismissed at appellant’s cost.


author: DREW, J.

text:
    No. 4184
    Second Circuit
    BANK OF MARIANNA v. GANDY
    (February 16, 1932. Opinion and Decree.)
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys, for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued to recover $160 as damages for the alleged breach of a contract to purchase certain stocks of the Avoyelles Wholesale Grocery Company, Limited, of Alexandria, by defendant. It contends that the defendant contracted to purchase the stock for $660, and then refused to comply with his contract. The plaintiff later sold the stock for $500, the best price that could be obtained, thereby sustaining a loss of ' $160. Defendant contends that there was never a contract to buy, due to the fact that he was led to believe there were eleven shares of the stock, when in fact .there were only ten shares; that he offered to buy the stock, believing he was buying eleven shares, due to the uncertainty of the letter from plaintiff as to whether there were eleven or ten shares of stock. He further alleged that his offer was for immediate delivery of the stock, in care of the Guardian Finance Company, Incorporated, that the stock was sgnt to the Guaranty Bank & Trust Company in violation of written instructions, and that he was not notified .that the stock was there until more than one month after his offer to buy it. He denied there was any contract, due to error, and, in the alternative, if there was a contract, that it was breached by plaintiff when it failed to send the stock to the Guardian Finance Company as directed, and that it was without right, and acted in strict violation of instructions from defendant, in constituting the Guaranty Bank & Trust Company its agent. He further answers in the alternative that defendant was never put in default, and never notified that the stock would be sold on open market and defendant held liable for the difference in price. The lower court rendered judgment rejecting the demands of plaintiff, and it prosecutes this appeal.

The alleged contract consists of the following: December 3, 1929, plaintiff, by letter to defendant, offered to sell to him $1,000 of the par value of the Avoyelles Wholesale Grocery Company stock, if immediately accepted, for the sum of $750.

December 6, 1929, defendant replied as follows:

“Bank of Marianna, Marianna, Arkansas.
“Gentlemen: Replying to yours of recent date in which you proffer to sell $1000.00 of the Avoyelles. Wholesale Grocery Company stock for $750.00, will say that I can pay $660.00, and will do so immediately if you send the stock in care of the Guardian Finance Company, Inc., of this city.
“By virtue of the fact, this stock has not paid but one or two dividends in ten years makes it not very attractive.
“Very' truly yours,
“E. R. Gandy, M. D.”

December 24, 1929, was the next communication from plaintiff, and is as follows:

“Dr. E. R. Gandy, 530 Murray St., Alexandria, La.
“Dear Doctor: On December 6th you advised you would pay $660.00 for $1000.00 par value Avoyelles Wholesale Grocery Company stock, and invited us to draw on you for this amount with .the stock attached.
“We accepted your proposal and sent the stock with draft attached to the Guaranty Bank & Trust Co., but up to this writing we haven’t received returns on our draft.
“Please advise us.
“Very truly yours,
“Vice-President.”

Defendant was absent from his home when the last letter came, and did not receive it until some days later, apparently after December 28, 1929. He did not reply to the letter until January 17, 1930, after he had received another letter of date January 15, 1930, asking for a reply to the previous letter.

Defendant swears positively that he did not receive notice from the bank that it held the draft and stock until January 15, 1930, at which time he went to the bank in reply to a telephone message and refused to take the stock and pay the draft. It is to be noted that plaintiff did not reply to defendant’s letter of December 3, 1929, wherein he made an offer for the stock, and nowhere in the record is it shown when the stock and draft were forwarded to the Guaranty Bank & Trust Company. The first indication .that defendant had that plaintiff would accept his offer was upon receipt of the letter of date December 24, 1929, received by him on or after December 28, 1929. It is true that one of the officers of the bank testified that a draft came to his bank drawn on defendant, but did not attempt to fix a date. He also testified to the routine in the bank in regard to giving notice upon receipt of a draft. He did not know definitely about notice being given on this draft other than what was customary in the bank. Such testimony cannot overcome the positive testimony of the defendant that he was not notified.

Plaintiff, in his offer to sell the stock for $750, restricted the offer to an immediate acceptance. This offer was not accepted, but defendant made an offer on December 6, conditioning his offer on two things: Immediate acceptance and that it be sent to the Guardian Finance Company, Incorporated. The record discloses that neither of .the two conditions in defendant’s offer were accepted or complied with by plaintiff. It did not send the stock to the Guardian Finance Company; neither does the record disclose that it was sent anywhere immediately. Article 1805 of the Revised Civil Code reads as follows, and controls in this case:

“The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.”

The reason defendant specified “if you send the stock in care of the Guardian Finance Company, Inc.,” is shown by the record. However, his reason need not have been given. The reason for wanting quick action is also explained unnecessarily. However, any one buying stocks would necessarily want quick delivery due to the fluctuation ordinarily prevailing in stocks and bonds. As in this case, the record discloses that this particular stock dropped in value from $660 to $500 from the time of the offer made by defendant on December 3, 1929, to February 4, 1930, and some sold for $45 per share about February 6, 1930. The very fact that plaintiff did not accept the offer of defendant as made shows there was no meeting of minds, and therefore no contract. The will of both parties did not unite on the same point. Rev. Civ. Code, art. 1798; McDonough v. Winchester, 1 La. 188; Bethel v. Hawkins, 21 La. Ann. 620; Advance Thresher Co. v. Roger, 123 La. 1068, 49 So. 709.

There never having been a contract between plaintiff and defendant, there could not be a breach.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 4267
    Second Circuit
    BECKMAN CO. v. DEBLIEUX
    (March 16, 1932. Opinion and Decree.)
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    M. L. Dismukes, of Natchitoches, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued for $110, the alleged price of 2,000 “Toy Talkies,” which it claims to have sold and delivered to defendant.

The defense is a general denial, and defendant denies that the order was authorized by bim or by any,one with authority to order the merchandise. The lower court rejected the demands ; of plaintiff, and it has prosecuted this appeal.

Defendant operates a drug store in the town of Natchitoches, and he and Joe Maggio opened up a business 'in the name of “Demon’s Den,” in that part of town near the State Normal School. This business handled cigars, confections, cigarettes, etc., and specially catered to' the students of the Normal School. They employed one “Jones” to look after Demon’s Den, whose authority consisted of managing the clerks and buying such articles as were needed from day to day, such as gum, etc., all of which was paid for with cash, and he was without authority to sign orders for other goods.

Plaintiff’s salesman approached defendant about buying some advertising matter for Demon’s Den and exhibited his samples to defendant. Defendant picked out two numbers, a cap and a “toy talkie,” and instructed the salesman to go to Demon’s Den and show these two numbers to Mr. Jones and Mr. Maggio and let them decide which was most acceptable, and to come back and he would sign or ratify the order. The salesman went to Demon’s Den and showed the samples to Mr. Jones, who selected the “toy talkie” and signed the order for 2,000 at 5% cents each. The order was signed, “Demon’s Den, by O. O. Jones.”

The order, signed as above described, was sent by the salesman to plaintiff, who printed the Demon’s Den advertising on the backs and shipped them by express. The express man delivered the goods to Demon’s Den and later presented a bill for express charges of $5 and some cents, which was paid.

The invoice followed a few weeks later and was delivered to defendant’s drug store. Soon thereafter, defendant wrote plaintiff denying the authority of Jones to buy the goods for Demon’s Den, and also complained of .the quantity and price. He offered to return the goods, which offer was refused by plaintiff.

There is no apparent dispute over the facts as above narrated, but there is a dispute over the authority of Jones to place the order and the ratification of same by the defendant. Defendant testified that he told the salesman to let Jones see the samples and select what he thought best, but specifically told him that any order would have to be signed by either defendant or Mr. Maggio. This is.not denied by the salesman, who contends that Mr. Jones informed him that he was a partner in the business, and that he was therefore satisfied with Mr. Jones’ signature to the order. He contends that he returned to defendant’s drug store in company with Mr. Jones and informed defendant that Mr. Jones had ordered the 2,000 talkies, and that defendant replied, “O. K.,” and that he left a copy of the order with defendant before he returned to Demon’s Den.

Mr. Jones testified .that he informed the salesman that he had no authority to sign the order and that he signed it only for the purpose of showing to defendant that he had made a selection and that he did not get out of his car when he took the salesman from Demon’s Den to defendant’s drug store; that he merely delivered him there and went on his way, and knew nothing of what transpired afterwards between the salesman and defendant.

The defendant testified in part as follows :

“Q. When he got back to the store, after he had seen Jones I believe you state that Jones came with him, did you see the order then?
“A. No, sir.
“Q. Did you know how many had been ordered?
“A. No, sir.
“Q. Did you know at what price?
“A. No, sir.
“Q. Did he show you the order and require you to sign it?
“A. No, sir, he didn’t suggest my signing it.
“Q. Did you know at the time whether or not Mr. Jones had actually ordered any talkies?
“A. No, sir, I knew he had selected some, I was probably busy at the time.
“Q. Then it was not an order from the Demon’s Den, unless it was signed by you or Mr. Maggio?
“A. Yes, sir.”

We quote the above testimony for the reason that counsel for plaintiff in his brief contends that defendant did not deny seeing the order and receiving a copy of it. It is clear from the above testimony that defendant absolutely denies ever ratifying the order signed by Jones.

Jones was not a partner in the business, and was without authority to order goods or merchandise for the business. The salesman admits that defendant told him that any order would have to be signed by defendant and he returned to defendant’s place of business after showing the samples to Jones. It therefore follows that, for plaintiff to recover, he must by a preponderance of the testimony show that the order was signed or at least ratified by the defendant.

The lower court did not find the preponderance of testimony to be so, and we do not feel justified in saying there is manifest error in his finding.

Plaintiff’s salesman is contradicted by Mr. Jones and also by defendant, and his own testimony is uncorroborated.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.