text:
    No. 3549
    Second Circuit
    YOUNGER v. ALEXANDRIA COCA COLA BOTTLING COMPANY, LTD.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      K. Hundley, of Alexandria, attorney for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

Plaintiff sued defendant to collect $820.35 due on open account for parts and accessories used in repairing several motor-trucks owned by defendant. The fact that the items shown on the account were used in repairing its trucks is not disputed by defendant. But it denies liability on two grounds; first, because it did not authorize the purchase of said parts and accessories from defendant; and, second, that said account should be paid by the International Harvester Company, and not by it.

"We do not think either defense is good. The plaintiff is engaged in the sale of motor-trucks, parts and accessories, and has the agency for the sale of trucks manufactured by the International Harvester Company. In the years 1925 and 1926 plaintiff sold to defendant some five or six trucks to be used in the distribution and delivery of bottled beverages manufactured by it. The trucks, according to defendant, did not give satisfactory service, and it made complaint to plaintiff, who suggested the probability that the trucks were not being taken care of. To the end that defendant’s mechanics might be properly instructed in repairing and' caring for trucks of this kind, it sent one of them, Moore, to plaintiff’s place of business, and had him work under one of plaintiff’s men for two weeks, according to plaintiff, and for three or four weeks, according to defendant. Even after that Moore was not able, it is said, to keep the trucks going, except at great expense. Finally, in November, 1927, Mr. Gilham and his son, manager and assistant manager, respectively, of the defendant corporation, called at the office of the truck department of the International Harvester Company, in New Orleans, and made a complaint to the manager, Mr. Schumacher. The result, of the conference was that Mr. Schumacher sent an expert mechanic, Mr. Fortier, to Alexandria to repair the trucks. To do so, he needed parts and accessories, all of which were furnished by plaintiff. That plaintiff furnished and charged to defendant all the parts used by Fortier in the repairing of the trucks is not disputed. But defendant and his son both testified that Schumacher, manager of the New Orleans branch of the International Harvester Company, agreed to send his mechanic to Alexandria, do all the work necessary in making the repairs, and to furnish all parts necessary without expense to defendant. Schumacher denies that, but says he agreed to furnish a mechanic to do the work without charge, but did not agree to furnish the parts necessary. But whether Schumacher did or did not agree to furnish the necessary parts and accessories free of charge to defendant is not pertinent to the issues here involved.

The undisputed facts are that plaintiff, and not the Harvester Company, owned the parts used, and that he furnished them from his place of business, and that he was under no obligation, contractual or otherwise, to furnish them free of charge. It is not contended that plaintiff was a party to, or had any knowledge of, the agreement between Schumacher and Gil-ham, manager of the defendant company. During the time these trucks were being repaired, the elder Gilham was sick, but his son, assistant manager of the defendant company, was in charge, and knew all along that the parts were being gotten from plaintiff. Mr. Moore, one of defendant’s mechanics, 'personally went to plaintiff’s place of business and got the greater portion -of them,'" and ' signed the tickets therefor; Defendant, contends that these should have been charged to the Harvester Company, and not to it. But there was no agreement to that effect with plaintiff. He delivered the parts to defendant in accordance with a custom which prevailed long before ' this controversy arose. ‘ In 1926 and 1927 plaintiff had sold defendant supplies amounting to upwards of $2,000. These were all gotten by defendant’s mechanics and used in repairing the trucks, and were gotten in precisely the same manner as were those involved in this controversy, and the bills for them were promptly paid by defendant. Mr. Gilham, defendant’s manager, was asked: “No dispute between you and Mr. Younger in this matter, except as to who is going to pay for these parts, is there?” He answered: ‘‘That’s all.”

If the Harvester Company has breached its contract with defendant, defendant should seek redress against it. Under the testimony, defendant cannot escape its liability to plaintiff.

Counsel for defendant argues that plaintiff had no authority from defendant to charge these goods to it. It is true that it had no express authority, but practically all the parts were gotten by defendant’s mechanic, Moore, in the usual course, and, besides, young Gilham, defendant’s assistant manager, knew they were being got-, ten and used, and neither he or any one else made any complaint.

The judgment appealed from is correct; and is therefore affirmed, with costs in both courts.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2932
    Second Circuit
    YOUNSE ET AL. v. QUEEN INSURANCE COMPANY OF AMERICA
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      John M. Munholland, of Monroe, attorney for plaintiffs, appellees.
    J. S. Atkinson and Alex S. Smith, of-Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Defendant Issued to plaintiff Thomas Ruell Younse its policy of. insurance against loss or damage by fire to the amount of $1,000.00 “on the one and one half story shingle roof frame building. * * * isolated on the east side of Elm street and north side of Allen street in the town of Choudrant, Louisiana.” By stipulation attached to and made p'art of the policy any loss or damage ascertained and proven to be due the assured under the policy was made payable to plaintiff Mrs. Elizabeth Y. Braswell.

On October 17, 1923, the property insured was totally destroyed by fire, and the purpose of this action is to obtain judgment for the amount of the policy and legal interest thereon from the. date of the loss, and for the 12 per cent, damages and reasonable attorney’s fees allowed by Act No. 168 of 1908.

Three defenses were interposed, namely:

(1) That the policy stipulates that:
“No suit or action on this policy for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements nor unless commenced within twelve months next after the fire;” and that plaintiffs’ cause of action accrued October 17, 1923, and citation was not served until October 18, 1923, and that therefore the action was prescribed.
(2) That the policy stipulates that:
“This entire policy, unless otherwise provided by agreement, endorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the assured in fee simple;” and that at the time of the loss Thomas Ruell Younse was not unconditional or sole owner of the property insured and did not own the land on which the insured property stood in fee simple; and that therefore the policy was void.
(3) That the policy stipulates that:
“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy;” that the policy permitted only additional insurance to the amount only of $2,000, and that after the issuance of the policy Thomas Ruell Younse effected additional insurance on the property to the amount of $4,000 by two policies each for $2,000; and that consequently that policy was avoided.

On these issues the case was tried and there was judgment in favor of the plaintiff Thomas Ruell Younse and against the defendant, Queen Insurance Company of America, for the amount of the’ policy, $1,000, with legal interest thereon from October 17, 1923, and for $120, being a penalty of 12 per cent, on the amount of the policy, and for $100, as a reasonable attorney’s fee.

The defendant .appealed, and plaintiff Thomas Ruell Younse has answered the appeal and asks that the judgment be amended by increasing the amount allowed as a reasonable attorney’s fee to 25 per cent, of the amount of the judgment rendered.

OPINION.

I. The plea of prescription cannot be sustained. The cause of action accrued on October 17, 1923, the date of the fire, and the suit was filed October 13, 1924. This was within one year of the accrual of the cause of action, and interrupted prescription.

Section 27 of Act No. 267 of 1914 provides :

“That in all suits against corporations, whether foreign or domestic, all prescriptions against corporations shall be interrupted by the filing of the suit in the court having jurisdiction of the action against the corporation.’’

But defendant insists that Act No. 267 of 1914 does not apply to insurance corporations, but expressly excludes them from its operation.

No decision is cited in support of this contention, and we have not been able to find any in point. The question appears to be res novo.

The section of the act above copied does not except insurance corporations from its application, and apparently applies alike to all classes of corporations.

Defendant points to the first paragraph of the title of the act, reading:

“To prescribe the manner in which corporations of all kinds, except corporations engaged in banking and insurance in all of its forms, homestead, building and loan associations may be organized, the articles of incorporation amended and their conduct and management after organization.”

And to the corresponding section of the body of the act, reading:

“That three or more natural persons of full age or duly emancipated may, under this act, unite to form a stock corporation for any lawful business purpose, or purposes, except the business of banking and insurance in all of their several forms, and homestead, building and loan associations * * *” (italics ours) — as supporting its contention.

As these paragraphs clearly relate only to the organization of corporations, we are of the opinion that the exception was intended to provide that only in the matter of organization are insurance corporations excepted from the operation of the act.

And we are confirmed in this view by that paragraph of the title corresponding to section 27, which reads:

“To provide for the manner in which corporations and their officers, agents and employees may be served with legal process, and the manner in which they may be brought into court in the absence of such service, and to fix the venue of all suits, against them, and to fix when prescription against corporations shall be interrupted.”

It will be noted that neither this paragraph of the title nor section 27 excludes corporations of any kind, and that both apparently apply to all classes of corporations.

We therefore conclude that section 27 of Act No. 267 of 1914 applies to insurance corporations, and that the plea of prescription is not well taken.

Nor was the defense that plaintiff, Thomas Ruell Younse, was not, at the time of the fire, the unconditional and sole owner of the property insured.

Some years before the fire the plaintiff Younse built the property insured for use as a residence for himself and family, and it was being so used at the time of the fire.

Regarding the title to the land on which the burned property stood, J. B. Richmond testified:

“Q. I direct your attention to the fact that in June, 1906, J. W. Davis and J. B. Richmond bought a square of ground from J. S. Roane. Are you the same Richmond?
“A. Yes, sir.
“Q. Do you remember the circumstances?
“A. Yes, sir.
“Q. What did you do with your interest in that square of ground?
“A. Sold it to Mr. Younse.
“Q. About how long ago?
“A. About fifteen years ago.
“Q. What Younse was that?
“A. T. R. Younse.
“Q. Did you and he execute deeds at that time?
“A. Well, to the best of my recollection we did.
“Q. Did he take possession of that property at that time? (This question was not answered.)
“Q. Have you paid any taxes on that property since you say you transferred it to Mr. Younse many years ago?
“A. No, sir.
“Q. Have you exercised any claim of ownership since that time?
“A. No, sir.
“Q. Do you know who has been in possession of it since you say you transferred to him?
“A. It seems he has.
“Q. There was put on record here, under date of July 10, 1925, a deed from J. B. Richmond to T. R. Younse. Do you know why that deed was executed?
“A. It seems to me Mr. Younse had told me he had lost the original deed.
”Q. Was any money or consideration of any kind paid by Mr. Younse to you last year when this new deed was recorded and executed?
“A. No, sir.”

The plaintiff J. R. Younse testified about it:

‘‘Q. Mr. Younse, you have heard the testimony of T. R. Younse and J. B. Richmond with reference to the passing of deeds of Mr. Richmond’s half interest in this property, sometimes designated as lot 4 and sometimes as lot C. Have you any recollection about that transaction?
‘‘A. Yes, sir.
“Q. What do you remember about it?
“A. I remember they exchanged lots, traded lots, and that T. R. Younse got this half of block C and traded him a lot around on the front, and gave him the difference.
“Q. Do you know whether or not any deeds were executed at the time?
“A. They were.
“Q. Where were they executed?
“A. In our store office.”

Under date of July 10, 1925, J. B. Richmond executed to Thomas Ruell Younse a deed to his undivided half interest in the land in question. Thomas Ruell Younse had purchased from J. R. Younse in January, 1915, an undivided fourth interest in the property. The two, J. R. Younse and T. R. Younse, had in 1914 purchased an undivided half of the property from J. W. Davis. Davis and J. B. Richmond had acquired it equally and in indivisión from J. S. Roane.

We are satisfied that Thomas Ruell Younse had obtained a deed to Richmond’s undivided half of the land prior to the effecting of the insurance here involved, and that at the time of the fire he was the sole and unconditional owner of the land.

Nor can defendant’s remaining contention that plaintiff Thomas Ruell Younse had effected more insurance on the property destroyed than the contract of insurance permitted be sustained.

The supposed unauthorized insurance consisted of a policy for $2,000 issued by the Svea Fire & Life Insurance Company, Limited, but the property insured under that policy was not the same as that insured under the policy sued on. The policy issued by the former company insured a “one story shingle roof frame building * * * while occupied by owner as a dwelling and situated as follows: * * * west side of Elm street, Block No. 2 in the town of Choudrant, Louisiana,’’ while the ■property covered by the policy sued on describes the property insured as a “one and one half story shingle roof frame building * * * while occupied by owner as a dwelling and situated as follows: * * * isolated on the east side of Elm street and north side of Allen street in the town of Choudrant, Louisiana” — an altogether different piece of property. The property insured under one policy is a one and one-half story building on one side of a street while that insured under the other policy is a one-story building on the opposite side of the same street. There is no ambiguity in the description in either policy, and only by a strained construction could it be said that the two descriptions are of one and the same property.

“To constitute ‘other insurance,’ avoiding previous policy, the additional insurance must be upon the same subject, risk, and interest, etfected by the same insured, or for his benefit, or with his knowledge or consent; that neither identity of name nor identity of property is decisive upon the question; the interests covered by the policies must also be identical.” Cannon vs. Home Insurance Co., 49 La. Ann. 1367, 22 So. 387.

Defendant testified that, if the policy in the Svea Company was intended to cover the property destroyed by fire, it was issued without his knowledge or consent. A policy so issued is not a violation of the “other insurance clause.” Cannon vs. Home Insurance Co. supra; Knop vs. Lafayette Fire Insurance Co., 14 Orl. App. 400.

Plaintiff’s request that the amount of attorney’s fees allowed be increased cannot be granted. The case was tried partly on the record in another suit by the same plaintiff against another insurance company on a policy of insurance on the same property as that covered by the policy here sued on. We are of the opinion that the fee allowed by the trial judge was reasonable under the circumstances, and that it should not be increased.

We find no error in the j'udgment appealed from, .and accordingly it is affirmed.

WEBB, J., dissents.


text:
    No. 3091
    Second Circuit
    FLORSHEIM v. PORTER-WYNN UNDERTAKING COMPANY
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Hugh C. Fisher, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

By this action plaintiff sought judgment against defendant for $240, as a balance due for rent for the months of July, August, September, October, November, and December, 1926, of certain premises in the city of Shreveport, La., leased by plaintiff to defendant, and, in aid of the main demand, obtained the issuance of a writ of provisional seizure uhder which certain movable property situated on the leased premises was seized.

The defendant excepted to the petition on the grounds that it did not state a cause of action against defendant; that it did not set forth the names of the persons constituting the defendant partnership; that there was a misjoinder of parties defendant; and that the allegations of the petition were too vague and indefinite to enable defendants intelligently to answer it.

The exceptions of no cause of action and misjoinder of parties were overruled, and the exception of vagueness sustained, and plaintiff was ordered to make her petition more definite and certain.

Thereupon plaintiff filed an amended petition alleging that she had leased to defendant the premises 900 Cain street in the city of Shreveport, La., at the price of $40 per month, and that the price of the lease for the months of July, August, September, October, November, and December of the year 1926, amounting to $240, was past due and unpaid.

Defendant excepted to the amended petition on the ground that it did not state a cause of action. The exception was overruled.

Thereupon defendant answered and pleaded payment.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendant for the debt sued for and sustaining the provisional seizure, and defendant appealed.

OPINION.

The evidence fails to sustain defendant’s plea of payment. The ’plea of payment admitted the existence of the debt sued for, and cast on defendant the burden of showing payment. Smith vs. Turner, 3 La. App. 91; Bosich vs. Case, 4 La. App. 653; Johnson vs. Jones, 5 La. App. 220.

Defendant has not appeared in this court and pointed out any error in the judgment appealed from, and we have not been able to find any ourselves.

“Judgments are presumed to be correct. ■ Consequently when no appearance is made in this court, and no brief filed, nor argument made, on behalf of appellant, and the judgment, superficially considered, appears correct, it will be affirmed.” Succession of Suner, 5 La. App. 121.

The judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 3111
    Second Circuit
    LONG v. GRISHAM
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Wise, Randolph, Rendall & ' Freyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff purchased from defendant two lots in the town of Winnfield, La., against which there were recorded paving liens, and plaintiff having been forced to pay the amount of the liens, he instituted the present suit against defendant to recover the amount paid, and defendant appeals from a judgment in favor of plaintiff for the full amount demanded.

The question involved was whether or not defendant was obligated in warranty to plaintiff to protect him against the recorded paving liens, and, while several questions were raised on trial in the district court, the only question presented here is as to the ■ effect which should be given to the fact of the paving liens having been recorded at the time of the sale, in determining the extent of the obligations of defendant under article 2501 of the Oivil Code, providing that, “although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale;” and appellant, considering the latter part of the article, reading “and against the charges claimed on such thing, which were not declared at the time of the sale,” urges that registry conveyed notice to all persons of the existence of the liens and that it was not necessary for defendant to mhfce any declaration of the liens in order to be relieved of warranty against same.

In support of the position, appellant cites Municipality No. 1 vs. Leroy, 15 La. 147. However, in that case the court did not discuss article 2501 of the Civil Code. But assuming that a general rule was announced in that case, as application to the obligations of vendors of land under a general warranty or the warranty implied by law, the rule does not go further than to provide that, where land may be burdened with a lien or privilege resulting from a special assessment for local improvement, the vendor of such land, prior to the improvement being made, is not bound to protect the property in the hands of the vendee against the privilege or- lien; and, if it were shown in the present instance that the improvement or pavement for which the assessment and lien were granted had not been made at the time of the sale to plaintiff, it might be said that the case cited was applicable, as it might be equitably contended that the property had not been benefited until the improvement was made, and that the lien should be paid by the vendee; but such is not the situation presented.

Warranty is implied, and the vendor, in the absence of a stipulation' to the contrary, is bound to protect the property in the hands of the vendee against the charges, mortgages, privileges, etc., with which the property is burdened at the time of the sale (article 2501 Civil Code) and there is not any decision cited in which it is declared that, where the charge, mortgage, etc., is recorded, the vendor will be relieved of protecting the property against such charge without a declaration or stipulation to that effect.

In determining the extent of the warranty or the obligation of the vendor of immovable property, where the transfer is made with a stipulation of general warranty, as in the present instance, the act of sale is alone to be considered and construed with the law declaring the effect of a general warranty, in the absence of allegations and proof of error (Young et al. vs. Sartor et al., 152 La. 1064, 95 So. 223; Goodloe vs. Hart, 2 La. 447); but, if resort could be had to other matters to" restrict the obligation of the vendor or show the intent of the parties, as that the charges, privileges, etc., for which the vendor is sought to be held liable under the obligation of warranty, was recorded at' the time of the sale, proof of such fact would not show that it was the intent of the parties that the vendor should not be bound to protect the vendee against such recorded privilege.

In O’Shee vs. Chaudoir, 158 La. 321, 104 So. 59, it was held that, when at the time for the execution of a deed for the sale of land paving of a street on which the property abutted had been completed, accepted, and approved by the municipal authorities, the payment of the cost of paving rested on the vendor and not on the vendee; and, in the present instance, the evidence showing that, at the time of the sale by plaintiff to defendant, the paving for which the lien was granted had been completed and accepted, and the lien recorded, we do not think that, even considering the obligation in warranty of the defendant from an equitable point of view, he could complain of the judgment, as the duty of paying for the pavement rested on him.

The judgment is affirmed.


text:
    No. 3179
    Second Circuit
    BAUMAN v. CLINE
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Edward Barnett, of Shreveport, attorney for plaintiff, appellant.
    Bryan E. Bush, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The plaintiff appeals from a judgment rendered on trial of an exception or motion to dissolve an attachment, in which the attachment was dissolved, with damages in favor of the defendant, and it is urged that, under the provisions of article 258, Code Prac., which provides that, “if the defendant (in attachment) * * * prove in a summary way, after having given due notice in writing to the adverse party, that the allegations on which the order for attachment had been obtained were false, such attachment shall be dissolved,” the verity of the allegations upon which the attachment was issued cannot be placed at issue other than by a rule to show cause or by answer.

In this appellant apparently contends that, while the statute permits the question of the right of the plaintiff to the attachment to be determined prior to a trial on the merits (Allen, Nugent & Co. vs. Champlin, 32 La. Ann. 511), it does not permit the question to be determined on an exception or motion, where the allegations of the petition, if true, warrant the issuance of the attachment.

The statute does not provide for the manner in which the question, as to the right of the plaintiff to the attachment, may be raised, but, as stated, it clearly contemplates that the question may be raised prior to answer on the merits, and we do not think that, where the question is raised, whether by exception, motion, or rule to show cause, and plaintiff has notice, he can complain of the manner in which the question is raised.

In Read vs. Ware, 2 La. Ann. 498, where it was urged that the question could not be raised on motion or rule to show cause, it was held that the question could be raised in that manner, the court stating “the reasons for the application may be as distinctly stated in the grounds for this motion as in an exception or plea, and the difference in substance between the two modes of proceedings is not obvious;’’ and that “the rule in both cases is founded on the same motive — the propriety of giving summary relief in view of the severe character of the remedy, the operation of which might be ruinous to the defendant if he were compelled to wait the ordinary action of justice.”

It is not suggested that plaintiff did not have notice, conceding that he would not be bound to take notice of the filing of the plea (see, Poutz vs. Reggio, 26 La Ann. 306) nor is it suggested that plaintiff did not know of the date the plea was fixed for trial, or that he did not have an opportunity to present any evidence which he may have desired to present; and the evidence offered on the trial clearly showing that the allegations on which the attachment was issued were untrue, and that defendant had incurred expenses in the employment of an attorney to dissolve the writ to the extent of the damages allowed, the judgment is affirmed.


text:
    No. 2679
    Second Circuit
    PALMER v. MANN
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      Atkins & Meadors, of Homer, and W. D. Goff, of Arcadia, attorneys for plaintiff, appellee.
    Galloway & Johnson, of Shreveport, attorneys for defendant, appellant.
   'STATEMENT OP THE CASE.

REYNOLDS, J.

Plaintiff, Leonard Palmer, sued defendant, E. C. Mann, to recover judgment for $500, with legal interest thereon from judicial demand, on a cheek for that sum signed by the defendant, dated May 6, 1925, drawn on the Homer National Bank of Homer, La., in favor of plaintiff, and payment of which was stopped by defendant.

The defense is that the check was obtained by fraud and misrepresentation and that defendant received no consideration therefor; that on May 6, 1925, defendant sold to plaintiff a one ninety-sixth of all oil and gas produced from the S.E.14 of N.E.% of section 13, township 10 north, range, 1 east, in La Salle parish, La., and obtained the check as the price thereof by falsely representing to defendant that he had a good title to the property sold, which title was not yet of record, but would be received by plaintiff from his vendor that day, and that plaintiff would execute and put on record immediately a deed to defendant of the property sold and would also immediately put on record his own title; that plaintiff represented to defendant that one J. A. Bonham owned a like interest as plaintiff was selling to defendant, and that Bonham would begin drilling a well on the land for oil or gas on or before May 24, 1925, in order to prevent forfeiture of the lease of the land, which lease provided that it should become null and void unless drilling were begun on the leased premises on or before that date; that plaintiff never acquired ownership of the property he sold defendant; and that on June 17, 1925, plaintiff’s vendor, J. H. Askew, the original lessee of the land, acknowledged that his rights under the lease had been forfeited for noncompliance by .him with the terms of the lease.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendant as prayed for by the former, and the defendant appealed.

OPINION.

The evidence does not establish the fraud or misrepresentation alleged by defendant. On these issues defendant swears positively one way and plaintiff swears equally positively the other. Defendant’s testimony is set off by that of plaintiff, and the burden being on defendant to establish the facts alleged by a preponderance of the evidence and the burden not being discharged by him, the charges of fraud and misrepresentation fall.

But the evidence makes it clear that the consideration for which the check was given failed.

The check was given in payment for a one ninety-sixth share of all oil and gas that might be produced from the S.E.% of N.E.Ü of section 13, township 10 north, range 1 east, in La Salle parish, La., under a lease of that land which stipulated that the lease should he void if drilling for oil and gas were not begun on or before May-24, 1925. At the time plaintiff obtained the check, he informed defendant that, while he did not then have a title to the property sold on record, a title to him had been executed and was in transit to him and would be received and put on record in due course of mail.

A transfer from plaintiff to defendant of the property sold was executed on May 8, 1925, and filed for record on the same day.

No title to plaintiff to the property was ever put on record, except that on November 25, 1925, there was filed for record a sale from J. H. Askew to plaintiff a one ninety-sixth interest in and to that certain oil, gas, and mineral lease executed by H. W. King of La Salle parish, La., in favor of J. H. Askew, agent, of Caddo parish, La., on the S.E.JA of N.E.% of section 13, township 10 north, range 2 east.

If it be conceded that this act transferred to plaintiff the same property that plaintiff transferred to defendant, notwithstanding in the transfer to defendant the leased land is declared to be. in range 1, while in the transfer to plaintiff it is said to be in range 2, it appears from the evidence that the lease was forfeited on May 24, 1925, by the failure of the lessee to drill on the leased premises for oil or gas on or before that date.

The owners of the S.E.% of N.E.% of section 13, township 10 north, range 1 east, in La Salle parish, La., were H. W. King and others, and on April' 11, 1925, they granted to J. H. Askew, agent, a lease of the land for oil and gas exploitation. This lease stipulated that it should be void if drilling operations were not begun on or before May 24, 1925.

By Act dated June 17, 1925, filed for record on June 25, 1925, and recorded June 29, 1925, in Book K at page 504 of the Conveyance Records of La Salle parish, La., J. H. Askew, after reciting the' lease from King and others to him, declared:

“The said J. H. Askew further declared that he does hereby release, assign, set over and quitclaim any interest that he may have by virtue of said lease in the above described land, unto M. H. King et al. (the parties lessor) and warrants that he will never attempt to set up any claim to said land through said lease. This release granted and signed as an acknowledgement of forfeiture of the above lease as failure of the said J. H. Askew in carrying out his part of the above lease and drilling contract, and for the purpose of serving notice to the public that the above lease has become a nullity.”

Plaintiff not being the owner of the property he sold defendant, the sale was null.

“The sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.” Civil Code, art. 2452.

And, under the circumstances, the defendant was justified in stopping payment of the check.

“If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price until the seller has restored him to quiet possession or caused the disturbance to cease, unless the seller prefer to give security. There is an exception to this rule, when the buyer has been informed, before the sale, of the danger of eviction.” Civil Code, art. 2557.
“A vendor who has guaranteed a good title to the property he has sold, cannot collect the price of the sale from the vendee until he has made the title good.” Wamsley vs. Hunter, 29 La. Ann. 628.

If plaintiff desired to hold defendant for the price of the sale, he should have perfected the title he transferred before the lease became void because of the lessee’s failure to comply with its conditions. This plaintiff did not do, and consequently the consideration for the check failed.

It is therefore ordered, adudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff’s demands be rejected and his suit dismissed at his cost.


author: REYNOLDS,- J.

text:
    No. 2910
    Second Circuit
    EYLERS v. ROBY MOTORS CO., INC.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    R. D. Fuller, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of . Shreveport, attorneys for defendant-, appellee.
   REYNOLDS,- J.

Plaintiff sued defendant to obtain judgment against him for $600.00 with legal interest thereon from judicial demand, less a credit of $315.03.

He alleged:

“That, during the month of April, 1924, your petitioner placed one Reo automobile, model T-G, five passenger, with the Roby Motors Company, Inc., the defendant herein, with authority to sell the said automobile for a sum not under the full amount of $344.00.
“That the said defendant agreed to take the said automobile and to sell the same for a sum not less than $344.00, and that the said defendant agreed to pay to your petitioner any and all sums over and above the said price of $344.00 received from the sale of the said automobile.”

He further alleges that the defendant sold the automobile for $600, of which $300 was paid in cash and the balance by a promissory note drawn payable to the order of the defendant and that the note is past due.

Defendant admitted receiving the car for sale and alleged that it was not to be sold for less than $344.41, and alleges that that was the amount of plaintiff’s indebtedness to it at the time of the receipt of the car. It admitted selling the car for $600.00 and alleged that of that amount $312 was represented by a promissory note that was unpaid. It alleged that it holds the note for the purpose of collecting it and applying sufficient of its proceeds to the satisfaction of the balance of plaintiff’s debt to it, and that it had offered to deliver it to plaintiff and thereby tendered it to him upon payment of the balance owing by plaintiff to it.

And assuming the character of plaintiff in reconvention it alleged that in order to put the car in salable condition it was necessary to have certain repairs made to it and that these were made at a cost of $93.45, and that in finding a buyer for the car it was necessary to pay a salesman $36, and that plaintiff owes it the aggregate of these amounts in addition to the $344.41, or $473.86, less $325 in cash received by defendant from the purchaser at the time of the sale, and also less $50 collected by it on the promissory note given by the purchaser in part payment for the car, or a total credit of $375, leaving a balance owing by plaintiff to defendant of $98.86 with 8 per cent, per annum interest thereon from June 30, 1923, and for which it prayed judgment against plaintiff in reconvention.

The case was tried on these issues and judgment was rendered rejecting the demands of the plaintiff and also rejecting the reconventional demand of defendant.

From this judgment the plaintiff appealed.

The defendant did not appeal nor has it answered the plaintiff’s appeal.

OPINION.

The agreement between plaintiff and defendant for the sale of the automobile is in evidence and reads as follows:

“Shreveport, La., June 24, 1924. This will authorise Roby Motors Company to sell my oldest Reo touring car to the best possible advantage, crediting proceeds against my account. It is understood and agreed that the car is not to be sold for less than the account at this time, which is $344.41.”

J. M. Harper testified that he was the manager of defendant’s automobile repair shop and had examined the plaintiff’s car and that on October 15, 1924, repairs were made to it of the character and at the cost following, to-wit: Tightening up the connecting rods, grinding the valves, clean•ing the carbon, checking up the trans-. mission, $88.95, and that in addition to this work there was a tire to put on, lights and horn to be fixed and batteries to be changed.

“Q. Now, Mr. Harper, was that necessary, in order to sell the car?
“A. Yes, sir.
“Q- Well, state the reason for that?
“A. You couldn’t hardly sell any car if you didn’t have any lights; if the lights wouldn’t burn and the horn wouldn’t blow. You understand, there are lots of things you have to fix on a car to put it in salable shape. That was a used car.
“Q. Was that work necessary to put the car in condition to make the best possible sale of it?
“A. Yes, sir:
“Q. And the charges there are reasonable and usual?
“A. Yes, sir.
“Q. You know that that was actually done?
“A. Yes, sir.”

Defendant exceeded the authority vested in it by plaintiff in having the automobile repaired, but the evidence establishes that it acted in good faith and that its acts inured to the benefit of plaintiff. Its acts were those of an agent or negotiorum gestor and plaintiff became liable to defendant for its useful and necessary expenses in that connection.

“Equity obliges the owner, whose business has been well managed, to comply With the engagements contracted by the manager, in his name; to indemnify the manager in all the personal engagements . he has contracted; and to reimburse him all useful and necessary expenses.” Civil ■ Code, article 2299.
“The principal must reimburse the just and necessary sums which the agent has expended in the execution of his mandate and pay him reasonable compensation for ! his services.” Interstate Electric Co. vs. Neugas, 3 La. App. 353.

Plaintiff cannot, in good conscience, retain the benefit of defendant’s acts in reconditioning the car so as to make it salable, and refuse to reimburse it the money it expended in so doing; and this is true also of the amount paid by defendant to a salesman for finding a buyer for the car.

If this were a suit by plaintiff against defendant as his agent for an accounting or settlement the defendant would be entitled to recover from the plaintiff all moneys necessarily expended by it in the premises that inured to the benefit of plaintiff; and the same principle is true here although the suit is not one for an accounting or settlement but to recover a specific sum of money on the theory that the relation of principal and agent did not exist.

“An agent who sells goods on a credit, is not responsible to the principal until the price is received, unless the sale was improperly made.” Bird’s Syndic vs. Dix’s Estate, 8 La. 130.

That was a suit against the succession of an agent for the value of certain property received by him to be sold for account of his principal and which had been sold on a credit by him or his succession. The court below non-suited the plaintiff, and bn appeal the Supreme Court in affirming the judgment, said:

“The. amount sold and collected does not appear to have been yet collected, and unless the factor was responsible in his private capacity for selling it improperly (which is not pretended here) the estate of Dix cannot be made to pay it, before the money is received.”

As there, so here, it was not contended that the agent had exceeded his authority in selling the principal’s property partly on a credit.

Defendant tendered plaintiff the note taken by it for the balance of the price of the car upon condition that the former pay the balance owing by him to it in the premises and this offer the plaintiff has not accepted.

If plaintiff desired legal proceedings instituted to compel payment of the note it was his duty to advance the necessary money and give the necessary security for the payment of court costs and attorney’s fees. Defendant was under no obligation to assume such liabilities.

Plaintiff cites the case of Kinney vs. Crane, 9 La. 254, as authority for the contention that defendant owes him the amount of the note representing the deferred payment on the price of the automobile.

The agent’s liability in that case was not put on the ground that he had sold his principal’s property on a credit instead of for cash but on the ground that he had not exacted security from the purchaser for the credit and had held the note representing it for years in his possession without using common diligence to collect it and thus had made the debt his own.

Here the defendant exacted from the purchaser and had recorded a mortgage on the property sold to secure the payment of the unpaid part of the price and plaintiff’s suit was instituted about ninety days after the maturity of the mortgage debt.

The suit being one to obtain judgment against defendant for a specific sum of money and the evidence not showing that defendant is indebted to plaintiff in the amount claimed or any other amount, plaintiff’s demands were properly rejected.

The court below rejected defendant’s re-conventional demand and defendant neither appealed.from that judgment nor answered the plaintiff’s appeal. Therefore so much of the judgment appealed from as rejects defendant’s reconventional demand is not before us.

City of New Orleans vs. N. O. Jockey Club, 115 La. 911, 46 So. 331.

Thomas vs. Whittington, 127 La. 551, 53 So. 860.

Oglesby vs. Turner, 127 La. 1093, 54 So. 400.

A. Hiller Co. vs. Hotel Grunewald Co., 147 La. 129, 84 So. 520.

Sickinger vs. Board of Directors, etc., 147 La. 479, 85 So. 212.

The judgment of the district court is correct and accordingly it is affirmed.


author: ODOM, J.

text:
    No. 2818
    Second Circuit
    COLLINS ET AL. v. THE T. & P. RY. CO.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      T. H. McGregor, of Shreveport, attorney for plaintiffs, appellees.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs purchased 60 head of horses and mules from Ross Bros., in Fort Worth, Tex., and had them shipped to Delhi, La., over defendant’s line of railroad. When the shipment arrived at Delhi, there was one mule missing, two of the remaining 59 died within a short time, and all the others were gaunt, stiff and so badly emaciated that for some of them it took 5 days, and for others as long as 21 days, to restore them to such condition that they might be put on the market. Plaintiffs prosecute this suit against defendant, the initial carrier, to recover the value of the mules that died, and for $10 damage to each of the others, alleging that the death of the three mules and the damage to the others were due to the gross fault and negligence of defendant in handling the animals during the course of shipment. The' defense, in substance, is a general denial. There was judgment for plaintiffs, and defendant appealed.

OPINION

The only question presented for decision is whether the loss and damage sustained by plaintiffs were due to the fault and negligence of the defendant company in handling the shipment. Plaintiffs sued for the original cost price of the mules that died, plus carrying charges, and damage to each of the other 57 mules at $10 per head. The only disputed item of damage is that of $10 per head to the mules which lived. That item, we think, is amply proved. On the arrival of the animals at Delhi, they were all gaunt, stiff, and very much emaciated. The testimony shows that under ordinary conditions animals shipped the distance these were may be expected to be somewhat run down and out of order, but that, with one or two days’ rest, proper care, water and feed, they are restored to their normal condition. But these animals were in very much worse condition than they should have been. They were so run down, weak, and stiff that it took 5 days with the best of care to restore some of them, and as long as 21 days to restore some of the others. During this time they could not be put on the market, and had to be fed and cared for at an expense of approximately 75 cents per head for each day. Dr. Collins, who has dealt ' extensively in live stock, testified that, under ordinary and usual conditions, he could have put these animals on the market within 24 hours after their arrival, but that in this case he had to hold, feed, and care for them for quite a while, and both he and Mr. Patterson (who personally cared for the animals) testified that the extra cost of feeding, etc., amounted to an average of $10 per head. Mr. Alexander, of Shreveport, who has dealt in live stock for many years, says that it costs at least $1 per head a day to feed and care for mules and horses under such conditions; his estimate being higher than that of Dr. Collins and Mr. Patterson. If the unusual condition of the animals, which caused the delay in putting them on the market, was due to the fault and negligence of defendant, and we think it was, the loss occasioned thereby is a legitimate item of damage which may be recovered by plaintiffs, and we think the amount of such loss is fully established.

Counsel for defendant have not favored us with a brief, but, as we recall the oral argument, it was contended that defendant was guilty of no fault in handling the shipment, or at least that it was not proved that its negligence caused the death of the 3 mules and the damage to the others.

The animals were shipped under the uniform live stock contract or bill of lading, which contains the following stipulations printed on the back and as part thereof:

“Sec. 1. (a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the live stock herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensity of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence.
“Sec. 1. (b) Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said live stock occasioned by any of the following causes: Overloading, crowding one upon another, escaping from cars, pens, or vessels, kicking or goring or otherwise injuring themselves or each other, suffocation, fright, or fire caused by the shipper or the shipper’s agent, heat or cold, changes in weather or delay caused by stress of weather or damage to or obstruction of track or other causes beyond the carrier’s control.”

Article 2754 of the Civil Code, makes carriers and watermen “liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.” Plaintiffs in this case have shown delivery of the animals to the defendant carrier and have proved their loss and damage. But defendant failed to discharge the burden laid upon it by the Code of proving that plaintiffs’ loss or damage “has been occasioned by accidental and uncontrollable events”; therefore, in the absence of the above-noted restrictions contained in the contract of shipment as to liability, the defendant would be liable, having failed to make the proof required by the Code. However, our Supreme Court has held, in the case of Simms & Son vs. N. O. & N. E. Ry. Co., 122 La. 268, 47 So. 602, and again in McHenry Horse Exchange vs. I. C. Ry. Co., 148 La. 49, 86 So. 649, construing similar provisions in other live stock bills of lading, that failure by the carrier to prove the cause of death of an animal in transit does not render it liable, in the absence of testimony showing the cause of death. The court in these cases gave full effect to the contract, which provides that the carrier shall be liable only in case of its negligence. In the •Simms .case; .the court held:

“The precise cause of the injury is immaterial, if it did not result from the negligence of the carrier.”

We think the .testimony makes it reasonably certain that the death of the 3 mules and the damage to the others were due to the negligence of the carrier. The animals were unloaded en route at Shreveport for fo.od, water and- rest. One mule was then found dead in the car, but there is no testimony indicating that it had been injured, so that the cause of its death is a matter of inference. Two of the mules died at Delhi, after being unloaded. The veterinarian,' who examined the mules and who testified for defendant, told Dr. Collins and the station agent that, in bis opinion, they died of shipping fever, which disease in a mule or horse corresponds, so the experts say, to cold or influenza in a human being. Dr. Collins himself concurred in the view that the mules died of shipping fever. Mr. L. Robert, who lives at Fort Worth and was employed by the Western Weighing & Inspection Bureau, and who, according to his testimony, represented the railroad, inspected the animals at the chute when they were loaded. He says that five of them had shipping fever, but that he did not consider them seriously affected, otherwise, he would not have accepted them for the carrier. He and others testified that shipping fever in animals, like “flu” in man, is a germ disease, is contagious, and may be contracted by contact with infected animals, or by the animal being placed in an infected pen, and that practically all of the stockyards in the country are infected with that germ. Neither Dr. Collins, who purchased the animals at the yards of Ross Bros, the day before they were shipped, nor anyone connected with the yards, noticed that any of the animals were sick with the fever. But the testimony we think supports the conclusion that,'whether they had it then or contracted it later, they had it when they died. But there is nothing to indicate that this disease in the absence of any other cause, would have produced death. On the contrary, the testimony shows that the disease does not seriously affect the animals, if properly cared for, and we are convinced that, if the mules had been properly handled by- the carrier, they would not have died, even though they had the fever.

The carrier was grossly negligent in handling this shipment. The animals were loaded at Fort Worth and received by the defendant company at 4:30 (p. m., December 5th, and unloaded at Shreveport at 8:50 a. m., on December 7th. They were, therefore confined in the car continuously for more than 40 hours, during which time they had no rest, food, nor water. The train was delayed between Fort Worth and Shreveport about 10 hours, the greater portion of which time was taken in repairing an engine which should have been repaired before beginning the journey. To start out with a bad engine is negligence. The other delays were due mainly to setting out and picking up cars. These delays were not caused by the “act of God, the public enemy, quarantine, the authority of law * * * riots, strikes, stoppage of labor or threatened violence,” nor were they due to accidental causes, and therefore do not fall within the exceptions mentioned in the contract.

Under the rules and the federal statute which control in cases of this kind (U. S. Revised Statutes 1878, sections 4386-4389), a carrier is prohibited from confining animals without unloading for rest, food and water for a longer period of time than 28 consecutive hours, unless prevented from doing so by accidental causes. This period may be extended by consent to 36 hours, which was done in this case. But these animals were confined for more than 40 consecutive hours, without food, water or rest. This was negligence per se, and rendered the carrier liable for whatever damage that might have resulted therefrom. It has been held that, even though the delay be caused by an “act of God,” the carrier is not relieved from liability arising from its negligence to feed, water and rest animals in the “entire absence of evidence that the act of God in any way interfered with the handling of the stock or providing it with food and water, and giving it such care as would insure its delivery at destination in good condition.” 10 C. J., see. 113, p. 98, and numerous authorities there cited.

There is no suggestion that the defendant could not have unloaded the animals for food, water and rest at some other point on its line before reaching Shreveport. The testimony shows that the stock-pen at Shreveport, where these animals were unloaded for rest and food, was in such 'condition that they could not rest without lying down in mud and water. Mr. Alexander, a live stock dealer who lives in Shreveport, testified that he visited the pen at the request of plaintiffs only a day or so later, and that it was knee deep in mud; that there was no place for the animals to lie down; that it was kept wet by seepage water; and that conditions were so bad for stock that he at one time reported the matter to a humane officer. Not only that, it is admitted that the only food put out for these animals was a few bales of “prairie” or grass hay (which we understand to be a good filler, if the stock will eat it, but of scant food value). The animals remained in this pen for 6% hours, when they were reloaded and sent to Delhi, arriving there at 1:30 the next day. This neglect of the animals on the part of the carrier unquestionably weakened them greatly and brought them to the condition in which they were found on their arrival at Delhi. According to the testimony of the veterinarians, the death of the 3 mules is easily traceable to this neglect. They say that shipping fever is greatly augmented by exposure in damp, muddy yards which causes the disease to flare up. Also, when the animals are weak, their power of resistance is lowered, which weakened condition, as stated by Mr. Withers, “gives the disease easy progress in its ravages.” When an animal is strong, it resists the effects of the disease, but, when exposed or weakened by lack of food, water and rest, it succumbs easily and quickly. We have no doubt that, if these animals had been properly cared for and had not been weakened by lack of attention and by exposure, they would have survived the fever.

Our conclusion, therefore, is that plaintiffs’ loss was due to the negligence of the carrier.

The judgment appealed from is therefore affirmed, with costs in both courts.


text:
    No. 3297
    Second Circuit
    NELSON ET AL. v. CONTINENTAL ASPHALT & PETROLEUM CO. ET AL.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      Poster, Looney and Wilkinson, of Shreveport, attorneys for plaintiffs, appellees.
    E. W. & P. M. Browne, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

In July, 1919, plaintiffs executed an oil and gas lease on certain lands in Red River parish to one Ramsey, who subsequently transferred the lease to the defendant Continental Asphalt & Petroleum Company, which company drilled for oil and was successful.

Under stipulations contained in the lease, the lessors were to receive as royalties one-eighth of the oil saved from wells which produced 200 barrels or less per day, and one-sixth of the oil from wells which produced more than 200 barrels per day; and, in addition to the above royalties, the lessee obligated itself “to pay an additional sum equal to $50.00 per acre out of one-fourth of the first oil saved from that produced.”

The land leased was “estimated” in the contract to contain 75 acres. It is admitted that there was produced and saved from the wells on the land oil amounting in value to $80,000, but the additional sum equal to $50 per acre was never paid.

The present suit was brought by the lessors to collect $3,750, or $50 per acre, for 75 acres.

Subsequent to the date on which the lease was entered into, the lessors and the lessee entered into an agreement to the effect that the lessee should execute bond to secure payment due under the last-named clause, and the Fidelity & Casualty Company of New York became surety on the bond, which surety company was joined in this suit as co-defendant with the principal. The suit was filed on June 20, 1921, and on October 5th, following, the casualty company, surety on the bond, filed an exception to the jurisdiction of the court ratione personae, which exception was submitted on April 3, 1922, and on May 3d was overruled by the court. Three days later, on May 6th, the casualty company moved for a new trial of its exception to the jurisdiction, setting up that this exception was not based upon the ground that the principal and surety can not be joined as defendants in the same suit, “but, on the ground that the surety cannot be brought into court where the court has no legal jurisdiction over the principal and that in the case at bar plaintiff has not alleged facts giving this court jurisdiction herein, and that appearer, alleged to be a surety on the bond sued on, has a legal right to raise in its own behalf the question of the jurisdiction as the same might apply to the principal.” ■

On October 21st following, the motion for a rehearing on exception to the jurisdiction was denied.

The principal defendant, Continental Asphalt & Petroleum Company, did not except to the jurisdiction of the court. The case as to it was defaulted on April 5th. Three days later, on April 8th, it moved to set the default aside on the ground “that no valid service of the petition and citation has been made on exceptor herein. That at the time said preliminary default was entered, a plea to the jurisdiction of this Honorable Court had been filed herein by the Fidelity & Casualty Company of New York, its co-defendant herein, and that as said ,plea tendered the whole issue of jurisdiction herein, no valid default could be entered in this case pending said plea.” On November 10th following, the exception to the citation and the motion to set the default aside were overruled.

On November 4, 1922, the Fidelity & Casualty Company, surety on the bond, with reservations of all its exceptions and prior pleas, filed answer, and on November 29th, the principal defendant also filed answer, and on the same day filed a supplemental answer. On trial of the case, there was judgment for plaintiffs as prayed for against both defendants in solido for the sum of $3,750, and both defendants appealed.

OPINION

Both defendants were represented all through by the same attorneys, and, while they do not say so in argument or in brief, we infer that the appeal, insofar as the principal defendant, Continental Asphalt & Petroleum Company, is concerned, is practically abandoned. Counsel for appellee state in brief that no appeal was taken by it, but the record discloses that it did appeal devolutively and perfected its appeal by giving bond. But whether its appeal has been abandoned or not is unimportant, and we shall pass upon its case along with that of its co-defendant, the casualty company.

The serious contention made by counsel for appellants is that the district court of Caddo parish was without jurisdiction. But, as already stated, the principal defendant, Continental Asphalt & Petroleum Company, did not except to the jurisdiction but permitted the case to be defaulted as to it, and counsel concede that, having permitted issue to be joined tacitly by default, it could not thereafter raise the question of jurisdiction. It did, however, move to .set aside the default on the grounds, first, that the citation was illegal; and, second, because at the time the default against it was entered, there was pending an exception to the jurisdiction filed by the casualty company, sued in solido with it.

As to the citation, we have no means of knowing whether it was legal or not. The citation itself is not in the record, and there is nothing to show upon whom or how service was made. The motion to set the default aside on the ground that the citation was not legal was heard by the district judge, and presumably there was introduced testimony on the point, but the testimony is not in the record. We must assume that there was sufficient testimony introduced to warrant the district judge in holding that the citation was legal. This court will not reverse the judgment of a trial judge without evidence disclosing error, but will presume that he had before him sufficient facts to warrant his ruling. And, in this connection, we state that neither the exception to the citation nor the record otherwise disclose the grounds on which counsel contended that the citation was illegal. Plaintiff alleged in the petition that the defendant “Continental Asphalt & Petroleum Company is a corporation organized under the laws of - state, and doing business in Caddo Parish.” From the argument of counsel on both sides, we gather that the petroleum company is a foreign corporation. Even so, it was suable in Caddo parish even though it was drilling for oil in the parish of Red River, if it had its domicile in Caddo parish, or if it had located in that parish a main office which had supervision of all its affairs in the state. Subsection (f), sec. 6, Act No. 179 of 1918; Abadie et al. vs. National Petroleum Corporation, 150 La. 1076, 91 So. 516.

Counsel for appellants concede that, but, in supplemental brief, say that it was neither alleged or proved that the petroleum company had an office in Caddo parish having supervision of the transaction out of which this cause of action arose, or that it was domiciled in that parish. It was not alleged that it had its domicile in the parish of Caddo, but it was alleged that it was “doing business in Caddo parish.” That allegation is broad enough to admit proof that it had its main office in that parish, and it must be assumed that the district judge heard evidence on this point, and that the testimony convinced him that the defendant was properly before his court, and, as stated, we will not disturb his ruling in the absence of testimony disclosing error.

The Continental Asphalt & Petroleum Company, being suable in Caddo parish, it follows that the casualty company, surety on the bond, was suable there also, because section 8, Act No. 41 of 1894, provides that “such Company shall be suable in the same jurisdiction as the principal obligee (obligor) on such bond, and citation shall be served on it, or its attorney for service of process, as is by law in such cases provided.” It is not contended that service on the casualty company was not properly made.

But there is another reason why these defendants cannot escape this litigation .brought in Caddo parish. As already stated, the principal defendant did not except to the jurisdiction, but permitted default to be entered against it, and it is conceded that, as it was present in this state and engaged in business here, it could not thereafter plead to the jurisdiction. It urges, however, that, inasmuch as the casualty company had filed a plea to the jurisdiction, no default could be legally entered against it while the casualty company’s exception to the jurisdiction was pending. We have been referred to no rule or law, and we know of none, to prevent a default being entered against a principal defendant because there was pending an exception filed by the surety company.

But, aside from this, the principal defendant filed answer, and in the answer tendered to plaintiff the sum of $2,182.50 admitted to be due. By doing so, it submitted itself to the jurisdiction of the court. The court then and there could have entered judgment against it for that amount. Fitzpatrick-Cromwell Co., Limited, vs. Ellis, Judge, 106 La. 715, 31 So. 313, and authorities there cited.

The casualty company, surety, also filed answer in which it alleged that “said Continental Asphalt & Petroleum Company has tendered or offered to pay plaintiffs the sum of $2,182.50, which said plaintiffs have refused”; and it prayed that “there be judgment in favor of defendants and against said plaintiffs rejecting their demands in excess of said sum of $2,182.50, and for full and general relief.”

These allegations are equivalent to a tender by the casualty company as it adopted the allegations with reference to the tender which were made by the principal defendant, and sought to take advantage of said tender. It was so regarded by the Supreme Court when it transferred the appeal to this court. It said:

“* * * The Fidelity & Casualty Company of New York also filed an answer to the suit, adopting the answer filed by the Continental Asphalt & Petroleum Company, except insofar as the answer adopted is inconsistent with the one filed by it. There is nothing in the answer filed by the surety company that is inconsistent with the answer adopted by it insofar as relates to the amount admitted in the answer adopted as due. To the contrary, the surety company expressly prays that plaintiff’s demand be rejected, except as to the amount admitted io be due, which exception necessarily refers to the $2,182.50 admitted by the Continental Asphalt & Petroleum Company as being due, since nowhere else in the answer of either of the defendants is any other amount admitted to be owing. Therefore, when the suit was filed, there was $3,750, exclusive of interest, apparently in contest. However, prior to the submission of the case in the trial court for decision, the amount in contest was reduced, by the admissions made in the answers, to $1,567.50, exclusive of interest.” Nelson vs. Cont. Asphalt & Pet. Co. et al., 157 La. 491, 102 So. 583.

The casualty company therefore subjected itself to the jurisdiction of the court.

ON THE MERITS

It is contended by these defendants that the tract of land leased did not contain in fact 75 acres, and that it should have refunded to it approximately $1,000, being $100 per acre on the difference in acreage between that estimated in the lease and the acreage actually covered by the lease; and further contended that, if the court should hold that defendants are liable for any amount, such amount should be based upon the actual acreage and not that stipulated in the lease.

It is contended in argument that the lease covered only sixty-four and a fraction acres, and it is suggested that the land was carefully surveyed and measured, which survey and measurement disclose that the tract contained only about 64 acres. But we fail to find in the record the plat or survey referred to, for which reason we have no means of ascertaining the acreage, except by reference to the testimony of the plaintiffs. They both testified that, at the time the lease was granted, there were 75 acres in the tract, if not more, and there is nothing in the record to the contrary. The testimony discloses that a portion of the land is located on the bank of Red River, which is caving very rapidly, and it is probably true that the tract was reduced in acreage by the caving. But, as stated, the only testimony in the record with reference to the acreage shows that, at the time the lease was made, there were fully 75 acres in the tract, as estimated at the time the lease was entered into. We think the judgment on the merits is correct.

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


text:
    No. 3510
    Second Circuit
    ROWE v. CRICHTON CO., LTD.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      Kennon and Kitchens, of Minden, attorneys for plaintiff, appellant.
    A. S. Drew, of Minden, attorney for defendant, appellee.
   ODOM, J.

On September 25, 1922, the plaintiff, Joe S. Rowe, executed and signed a note, or rather a due bill, for the sum of $500, in favor of Crichton Company, Ltd., which note or due bill contains the following recital on its face:

“I also do hereby waive service of copy of petition, citation and time, and confess judgment in favor of the said Crichton Company, Ltd., or any future’ holder of this note for said sum, interest and attorney’s fees, and agree that any property of mine seized to pay same be sold with benefit of appraisement.”

On August 24, 1927, Crichton Company, the holder and owner of said instrument, filed suit against plaintiff for the amount of the note, together with interest and attorney’s fees, and on the 9th day of September, 1927, obtained judgment as prayed for.

The present suit is by Joe S. Rowe against the Crichton Company, Ltd., to have said judgment annulled, and, as a cause of action, plaintiff alleges that said judgment was obtained through fraud and other ill practices on the part of T. A. Glass, who seems to have been the president and manager of Crichton Company.

As grounds of nullity, plaintiff does not set up any of the causes stipulated in Article 606 of the Code of Practice, but sets up as his ground for nullity the causes recited in Article 607 of the Code, which declares that “a definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered.”

Plaintiff does not allege that there was fraud or ill practice on the part of the Crichton Company in that it obtained said judgment by bribing the judge or the witnesses, or, by producing forged documents, or by denying having received the •payment of a sum, the receipt for which the defendant had lost or could Dot find at the time, but sets up in substance that subsequent to the date on which the note or due bill was signed, he placed in the hands of the Service Garage, which he alleges was owned and 'operated by Mr. Glass, president of Crichton Company, Ltd., an automobile which the owners and managers of the said Service Garage agreed to sell for him and to place the proceeds of the sale to the credit of the said note, and that the said Glass, as owner of said garage, made no effort whatsoever to sell said automobile, and that, as a consequence of his neglect to do so, the automobile became worthless; and further, that he placed in the hands of said Glass •for collection certain promissory notes which were not collected. Plaintiff further sets up that the suit on the due bill was instituted without notice to him and without previous demand for payment.

In the alternative, plaintiff asks that, in case the court should decline to cancel said judgment, then in that event, he be given credit on the judgment for $350 which, he alleges, was the value of the automobile at the time it was placed in the said Service Garage.

OPINION

Plaintiff has utterly failed to prove any fraud or ill practice on the part of the Crichton Company in obtaining the judgment which he now seeks to have annulled. It is • true, as alleged by plaintiff, that there was no demand made upon him for payment of the note previous to the institution of the suit, nor was he personally cited to appear. Under the precise terms of the document sued on, no demand for payment was necessary nor was it necessary to cite and serve the maker of the due bill, because the debtor specifically waived citation and service and con-' fessed judgment. A filing of suit without previous notice or demand, under the circumstances, was neither fraud nor ill practice on the part of the Crichton Company.

On the other branch of the case, the testimony shows that subsequent to the making of the note, plaintiff, Rowe, carried to the Service Garage, which seems to have been owned and operated by Hr. Glass and Mr. Townsend and which had no connection whatsoever with the Crichton Company, the holder and owner of the due bill, an automobile which he desired to sell, and told said parties that he had practically arranged the sale of said car to Wiley Dollar for $350, and that, in case he made the sale, he would apply the proceeds as a payment on the due bill. He furthermore told said parties that if they could sell said automobile, he would permit them to apply the proceeds as a payment on his indebtedness. There is no testimony to the effect that the owners of the Service Garage agreed to sell the automobile, but merely stated to plaintiff, Rowe, that in case they had an opportunity to sell it, they would do so and deliver the proceeds to the Crichton Company to go as a credit on his obligation to it. Plaintiff himself says they did not agree to accept said car and give credit for its value. The facts are that the car was not sold, but remained at said garage for more than four years. In the meantime, plaintiff himself had endeavored to sell it. That was in 1923. After his failure to make a sale of the automobile, plaintiff left and remained away for approximately four years, without making further efforts himself to dispose of the car and without communicating with either Glass or Townsend with reference to it. Mr. Glass testified that he had no opportunity to sell the car, which remained in storage until he and Townsend quit business in 1927, when the car, according to his understanding, was carried out of the building along with eight other old, wrecked cars.

Counsel for plaintiff in their brief cited Articles 3002, 3003 and 3004 of the Civil Code with reference to the duties and obligations of an agent or attorney in fact, and cited also a number of decisions holding that one who accepts a mandate for another, must use due diligence in the discharge of his duties. These articles of the Code and decisions might be pertinent if as a matter of fact either Glass or Townsend had been the agent of plaintiff to sell the car, provided it had been shown that either or both represented the Crichton Company. But, as already stated, plaintiff left his automobile at the Service Garage, which was in no way connected with the Crichton Company, and the testimony shows that neither Glass nor Townsend agreed to become the agent of plaintiff for the sale of the car, but merely agreed that in case they had an opportunity to sell it, they would do so. Plaintiff also alleged, and it was shown, that he left a number of promissory notes in the hands of Glass with the understanding that if Glass could collect them, or any of them, he would apply such sums as he collected as a credit on the due bill. Subsequently, a number of the notes were returned to plaintiff by Glass with the statement that they could not be collected, and with the suggestion that he take new notes. Glass assumed no obligation to collect the notes nor did he agree to take them and give plaintiff credit for them.

Plaintiff complains that either Glass or Townsend removed parts from his automobile, as a result of which it became worthless. If that be true, he may have an action against them for the destruction of the car.

Plaintiff has utterly failed to make out his case on either branch.

There was judgment in the district court rejecting plaintiff’s demands in toto. The testimony shows, however, that previous to the date on which judgment was rendered against the plaintiff on the due bill, Mr. Glass, president of the defendant company, collected the sum of $26 on one of the notes which Rowe had turned over to him, and which amount was not credited on the note. For this reason, the judge of the lower court gave credit in the judgment for the amount thus collected and ordered defendant to pay all costs. Defendant, appellee, has answered the appeal and asked that the judgment be so amended as to throw the cost on plaintiff. Appellee does not complain that the judgment is incorrect on account of having allowed plaintiff credit for the amount. Even though the credit should not have been allowed under the pleadings, we cannot amend it so as to strike out the credit. As the record stands, plaintiff was successful to that extent and defendant must pay the costs.

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


text:
    No. 3565
    Second Circuit
    F. MAYER BOOT & SHOE CO. v. DICKERSON ET AL.
    July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      A. Leonard Allen, of Winnfield, attorney for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendants, appellants.
   REYNOLDS, J.

Plaintiff, P. Mayer Boot & Shoe Company, by this action sought judgment against M. M. Dickerson and J. R. Hall in solido for the sum of $760.73 with legal interest thereon from March 10, 1923, and 10 per cent, on the amount of principal and interest as attorney’s fees on a contract of guaranty in words and figures as follows, to-wit:

“To P. Mayer Boot & Shoe Co., Milwaukee, Wis.
“Winnfield, La., Mar. 10, 1923.
“Gentlemen: Por value received, and the further consideration that you extend a line of credit to the extent of nine hundred dollars to W. P. Dickerson of Winnfield, La., I do hereby guarantee the full and prompt payment to you of all indebtedness which said W. P. Dickerson has incurred or may hereafter incur for the purchase of merchandise from you and of all notes, bills receivable, drafts and checks taken in settlement for same, and any and all extensions and renewals thereof, without requiring notice of any kind in respect thereto, notice of every character being hereby expressly waived; provided, that my liability shall not at any one time exceed the sum of nine hundred dollars. Should you desire to collect from said W. P. Dickerson by suit or otherwise, I hereby agree to pay any and all expense connected therewith, including reasonable attorney’s fees and collection charges. It is expressly agreed that neither an increase in the amount of the line of credit extended, nor the extension of the time of (payment on any account or note or other evidence of indebtedness, nor the renewal of any note or evidence of indebtedness, shall in any manner relieve the undersigned from said obligation to you. It is expressly agreed that this guaranty is an open and continuing one and shall remain in full force until expressly revoked by notice in writing duly served upon you at your place of business at Milwaukee, Wisconsin, and until all indebtedness incurred hereunder shall have been fully paid. Notice of acceptance of this guaranty and of the furnishing of the merchandise thereunder is hereby waived.
“W. F. Dickerson
“J. R. Hall
“M. M. Dickerson.’’

Plaintiff alleges that on and prior to the giving of the guaranty, W. F. Dickerson was indebted to it in the amount sued for and that it thereafter sold and delivered more merchandise to him, increasing the indebtedness to it to $813.63, and that thereafter he was adjudicated a bankrupt and that it duly probated his indebtedness to it against his estate, and that the amount demanded still remains unpaid.

The defense is that the consideration of the guaranty had failed by reason of the fact that the guarantee had failed and refused to sell any more merchandise to W. F. Dickerson on a credit, and that the guarantors were discharged by the guarantee negligently failing to enforce a mortgage on immovable property situated in the town of Winnfield, La., and worth more than the amount of the debt owing to the guarantee, given by W. F. Dickerson to it to secure the payment of two promissory notes for the sum of $500 each drawn payable to his own order and by him endorsed in blank and pledged to the guarantee as security for the payment of his indebtedness to it.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendants in solido for the amount sued for and the defendants appealed.

OPINION

W. F. Dickerson became a bankrupt December 31, 1923, and on his schedule of liabilities listed plaintiff as a creditor in the sum of $863.13. As a witness he testified :

“Q. You don’t deny, Mr. Dickerson, that, at the time you went into bankruptcy, that you owed them for a wholo bunch of goods?
“A. Yes, sir. I owed them.
“Q. They were paid by your going into bankruptcy?
“A. Yes, sir; a whole lot of it.
“Q. You know what per cent, your estate paid?
“A. About seventeen per cent.”

D. L. Sawyer, whose testimony was taken by deposition, testified that he was plaintiff’s credit manager, and that:

“The amount of the goods shipped to W. F. Dickerson after the guaranty was signed amounted to $283.68, which goods were sold and shipped him directly and solely on the guaranty or letter of credit; and we would not have shipped the goods above mentioned if we had not received the guaranty, and we relied upon it as being good.”

This testimony of these two witnesses and the fact that W. F. Dickerson listed plaintiff as a creditor of his in the sum of $863.13 on his schedule of liabilities in bankruptcy satisfies us that plaintiff did sell and deliver him goods on a credit after the giving of the guaranty. The defense of failure of consideration is not sustained.

In respect of the two promissory notes, secured by mortgage, the witness Sawyer testified:

“W. F. Dickerson at one time voluntarily sent us two notes signed by W. F. Dickerson and payable to W. F. Dickerson, purporting to be secured by mortgage on certain real estate, which he asked us to accept as security on his indebtedness. We did not accept these, but turned them over to our local attorneys for investigation. Our attorneys reported to us that in their opinion the security was not good. We then instructed our attorneys to return the notes to Mr. Dickerson. In the meantime Mr. Dickerson filed a petition in bankruptcy, and our attorneys reported the notes were sent to the referee in bankruptcy. During all this time we relied on the guaranty or letter of credit, and never surrendered same.
“Mr. Dickerson sent these notes to us voluntarily and without our request. These notes and' mortgage were never accepted by us as additional security or in lieu of the guaranty or letter of credit.”

The witness W. F. Dickerson asked about the notes, said:

“Q. Did you ever see these mortgage notes after that?
“A. In Alexandria in the United States court.”

It thus appears that the notes were sent to plaintiff voluntarily by W. F. Dickerson and that they were surrendered by the plaintiff to W. F. Dickerson’s representative in bankruptcy.

Plaintiff was not under obligation to accept the notes and did not accept them.

But defendants contend that plaintiff refused to accept the guarantee and that the notes and mortgage were executed and the notes sent to it in lieu of the guaranty.

J. R. Hall, one of the defendants, testified:

“Q. After you signed that (the guaranty) what happened?
“A. Well, a short time after we signed that letter of credit they (plaintiff) wrote us that the letter of credit was not acceptable, but if we would sign notes they would ship the goods.
“Q. How long after you signed this letter of Credit before you heard from this company about it?
“A. It must have been a month possibly.
“Q. They wrote you back right straight in due course of business?
“A. Yes, sir; and stated it was not acceptable.
“Q. Then how long was it before you heard from them again?
“A. I didn’t hear from them any more; did not hear from them any more until this proposition come up.”

M. M. Dickerson, the .other defendant, testified to the same effect. He was asked where plaintiff’s letter refusing to accept the guaranty was, and he said it was lost.

Both defendants testified that after receipt of plaintiff’s letter in question they heard nothing more about the guaranty until this suit was brought. Neither of them ever requested plaintiff to return the guaranty and neither of them offers any excuse for not doing so.

As to the alleged letter, plaintiff’s witness, Sawyer, testified:

“A thorough examination of our records discloses no such correspondence.”

The fact that plaintiff did sell and deliver merchandise to W. F. Dickerson after the guaranty was given discredits this contention and the testimony by which it is sought to maintain it.

Defendants in their answer alleged that: “* * * when they signed the letter of credit on March 10, 1923, W. F. Dickerson was the owner of a house and lot in the town of Winnfield which he had agreed to mortgage to secure the amount he owed plaintiff and which he subsequently did mortgage to himself for the sum, of one thousand dollars and endorsed the two five hundred dollar notes secured by the mortgage and turned them over to plaintiff as security for the said indebtedness; that the said property was well worth the amount placed on it; but that the plaintiff, through laches and negligence, failed to exercise its privilege on said property, and finally lost it in the bankruptcy proceedings; that they would not have signed the letter of credit, worded as it was, if they had not known of this additional security; and they signed it for the sole purpose of securing additional and future credit for W. F. Dickerson * * *”

The mortgage referred to was executed on July 16, 1923, more than four months after the guaranty was given. Therefore the mortgage could hardly have been an inducement for the giving of the guaranty. But if it was, it was res between W. F. Dickerson and the defendants, with which the latter does not even claim plaintiff had anything to do, and plaintiff could not be affected by it.

There is a conflict between the allegations of the answer quoted and the testimony of the defendant Hall copied above. He says the plaintiff refused to accept the guaranty and demanded the personal notes of the defendants as a condition precedent to selling W. F. Dickerson more goods on a credit.

However, even if plaintiff had accepted the mortgage notes and they had been given as additional security for W. F. Dickerson’s debt to it, plaintiff would not have been under any obligation to seize and sell the mortgaged property before calling on defendants for payment of W. F. Dickerson’s debt.

“The creditor is not bound to discuss the principal debtor’s property, unless he should be required to do so by the surety, on the institution of proceedings against the latter.”

Civil Code, article 3046.

Nor would the guarantors have been discharged had the mortgage notes become worthless by reason of plaintiff’s failure to seize and sell the mortgaged property.

In the case of Commercial National Bank vs. Richardson, 163 La. 933, 113 So. 152, which was a suit by the former against the latter as the guarantor of payment of the note of one Todd, held by the former, to which certain shares of stock belonging to Todd were attached as collateral security, one of the defenses was that the guarantor was discharged by reason of the collateral becoming worthless while in the possession of the bank; and dealing with this contention, the court said:

“We fail to appreciate the force of the argument that plaintiff bank cannot recover against defendant on his guaranty because' the collateral held by it" had become worthless. The very purpose of a contract of guaranty is to provide against such contingency. There is no obligation upon the part of the bank warranting the integrity of the collateral in this case, when delivered to defendant. To impose such obligation upon the bank would be practically to hold that the bank is the guarantor of defendant, instead of defendant the guarantor of the bank.”

And, further:

“Defendant is not in a position in this case to invoke the equitable doctrine of estoppel through the laches of plaintiff bank for two reasons: First, because of the tenor of the guaranty agreement; second, because defendant * * * could easily have protected himself before any depreciation in the value of these securities occurred, by making a demand upon plaintiff bank for the collateral and paying the note.”

As in that case, so here, the guaranty was unconditional; and if plaintiff had accepted the mortgage notes, then the guarantors here as the guarantor there might have protected themslves by paying W. F. Dickerson’s debt and demanding and. receiving the mortgage notes from plaintiff and foreclosing the mortgage themselves.

The evidence does not establish the defenses set up by defendants. The trial judge did not think so nor do we.

“Signatures to obligations are not mere ornaments * * * and parties who sign, solemn obligations must expect to be held liable according to the tenor thereof.”

Commercial National Bank vs. Richardson, supra.

We find, no error in the judgment appealed from and accordingly it is affirmed.