text:
    No. 652
    First Circuit
    LAVERGNE ET AL. v. PARISH OF JEFFERSON DAVIS
    (June 9, 1930. Opinion and Decree.)
    John B. Fournet, of Jennings, attorney for plaintiffs, appellees.
    John J. Robira, of Lake Charles, district attorney, for defendant, appellant.
   MOUTON, J.

In obedience to notification from the proper authorities of the defendant parish, plaintiffs drove 77 head of cattle to the Bardell Vat, where they were dipped for the eradication of ticks, on January 27, 1928. Plaintiffs claim that 9 head in the bunch of cattle dipped were injured in the process of dipping, or as a result thereof, and are suing the defendant parish for their value under provisions of Act No. 56 of 1918.

Judgment was rendered in favor of plaintiffs for their value, from which the parish prosecutes this appeal.

The proof is that the cattle were driven a distance of about two miles to the dipping vat; that the weather was cold, that they were carefully driven, and were not in the least overheated. It is equally certain that they were driven back, after the dipping, with equal care, and in the same condition. It is clearly established that if cattle are properly- handled, before and after dipping as these were, there is no danger of injury to them by absorption of the solution used in the dipping vats.

It is true that the 'cattle were extremely thin or emaciated but it is shown by Holbert, state inspector for. eradication work, and who supervised the dipping ■ in the instant case, that, as the cattle were able to walk a couple of miles going to the vat and returning to their pasture, they could stand the dipping. It is therefore evident that, if they were injured as contended for by plaintiffs, their extreme thinness, nor any overheated condition, either before or after the dipping, could have been the cause of their injury or death. It is shown, however, that after the dipping the 9 head sued for had scratched, swollen, cracked skins and swollen legs. Among other symptoms of toxic poisoning from dipping, it is shown that there is a cracking of the skin after a few hours or maybe several days.

Hatfield, a cattle inspector, witness for defendant, says that the handling of cattle before or after the dipping is what kills them; and, if that is not the cause, it must be ascribed to the solution.

Holbert, who conducted the dipping operation, says his solution tested 17 per cent., being 1 per cent, above the minimum permitted under the governmental regulations. He testifies that by dipping cattle in solution of that character no injury can result.

It is shown however, that, before cattle are driven in the vat, the solution must be thoroughly stirred and mixed so as to protect them from absorbing the poisonous ingredients intended for the destruction of the ticks. Holbert says that he had stirred the solution as required before these cattle were dipped.

In that respect Holbert is contradicted by Joe Lavergne, Phil Lavergne, and Delmar Carrie. Joe Lavergne says that Holbert first stirred the solution, poured some more, and then ran the cattle into the vat, while Philip Lavergne says that he poured solution in the vat, then some more and drove the cattle in to stir it up. It is well established by the record that the injury to the cattle did not result from being overheated when they were dipped or thereafter when they were driven back to pasturage, nor from their thin or emaciated condition, as above stated.

It therefore appears, as the testimony shows, that they were killed by the effects of the solution, as was clearly indicated by the breaking of their skins, £he usual symptom of toxic poisoning, as explained by Dr. Quilty, expert witness for defendant. Such being the situation, the only logical inference to be drawn from the evidence is that lack of sufficient dilution of the solution by proper stirring-caused the 9 head to receive a larger dose of the poisonous ingredient than they could stand, which resulted in their death a few days after the dipping.

As it appears that there was no contributory negligence on the part of plaintiffs, owners of the cattle, and that they were killed as a result of the dipping, judgment was properly rendered for plaintiffs, under the provisions ■ of Act 56 of 1918.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3782
    Second Circuit
    KNAUF v. HARTFORD FIRE INSURANCE COMPANY
    (July 5, 1930. Opinion and Decree.)
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, -appellant.
    John C. Hollingsworth, of New Orleans, and Hawthorn & Stafford and J. L. Pitts, Jr., of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

Defendant, Hartford Fire Insurance Company, in consideration of a premium to be paid in installments; issued to plaintiff, D. F. Knauf, a fire insurance policy, covering certain buildings, etc., for the period beginning June 1, 1925, and ending June 1, 1930.

Some of the property was destroyed by fire on July 22, 1928, and the present action was instituted on the policy to recover for the loss.

The contract provided that:

“It is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon this policy, remains past due and unpaid. * * * The company may collect, by suit or otherwise, any past due notes or installments thereof, and a receipt from the said Atlanta office of the company for the payment of past due notes or installments must be received by the assured, before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy.”

And plaintiff having alleged that the installment stipulated in the contract to be paid on June 1, 1928, had not been paid, defendant excepted that the petition failed to state a cause of action, and plaintiff appeals from a judgment sustaining the exception and dismissing his suit.

Appellant does not contend that the stipulation quoted was invalid, but that it was not self-operating, and that, in the absence of notice of suspension, the policy remained in full force and effect; and he urges that, as he alleged there was not any notice given of the suspension, the court erred in maintaining the exception of no cause • of action.

And, in this connection, appellant further urges that the stipulation quoted should be read in connection with the stipulation for cancellation of the policy and especially with the stipulation reading: ‘‘This policy ■shall be cancelled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation,” etc. And he also urges that the contract should be strictly construed in favor of the insured, citing Brown vs. North River Ins. Co., 144 La. 504, 80 So. 674; Corporation of Roman Catholic Church vs. Royal Ins. Co., 158 La. 601, 104 So. 383; and German Fire Ins. Co. vs. Tooley, 9 Orleans App. 78.

We do not think the provision requiring notice to be given before cancelling the policy can be read into the stipulation relative to the suspension of the policy, and appellant does not suggest that there is any ambiguity in the latter stipulation, but, as we gather from the brief, he contends that, in the absence of an express stipulation that the contract would be ipso facto suspended on non-payment of any installment ■due on the premium, affirmative action on the part of the insurer was necessary to give effect to the stipulation.

There is not any decision cited from this state in which the question lias been presented, but the great weight of authority ■in other jurisdictions is that such a stipulation is self-operating and that the insurer is not required to declare the contract suspended. Continental Ins. Co. vs. Stratton, 185 Ky. 523, 215 S. W. 416, 8 A. L. R. 391, and note page 395. Also Kerr, Insurance, secs. 131-130; Joyce, Insurance, vol. 3, sec. 2310.

Plaintiff’s petition' shows- that he was aware a payment was due on- the' premium, and there, is' not any circumstance or fact alleged which it is claimed rendered it necessary that the insurer should have given notice that the payment was past due or that the policy was suspended.

The judgment appealed from is therefore affirmed. ' '


author: ODOM, J.

text:
    No. 3827
    Second Circuit
    POLICE JURY OF RAPIDES PARISH v. JENNINGS ET AL.
    (June 2, 1930. Opinion and Decree.)

      Cleveland Dear and A. V. Hundley, of Alexandria, attorneys for plaintiff, appellant.
    B. F. Thompson, Jr., of Alexandria, attorney for defendants, appellees.
   ODOM, J.

Under Act No. 15 of the Extra Session of the Legislature of 1928, parishes of the state, except the parish of Orleans, are authorized to levy a tax of one cent per gallon on gasoline for road purposes. Following the method prescribed by the act, the police jury of Rapides parish prepared an ordinance levying such tax and had it published in the official journal, and gave notice that it would consider the passage of the ordinance on a certain date. On the day before the ordinance was to be taken up for consideration, petitions protesting the levying of such tax and asking that the police jury submit the proposition to the voters were presented to the police jury, together with a certificate of the registrar of voters certifying that these petitions were signed by more than 10 per cent of the registered voters of the parish.

At the same time these protesting petitions were filed with the police jury, there were others presented, signed by 293 of those who had signed the protesting petitions asking that their names be stricken therefrom.

Under section 6 of said act, a police jury has no authority to adopt such ordinance when opposed by 10 per cent of the registered voters of the parish. When the police jury convened to consider the passage of the ordinance, it had before it both petitions and considered both, and it was found that by erasing the names of those who desired to withdraw from the protesting petitions, the number left did not constitute 10 per cent of the registered voters of the parish and it proceeded to pass the ordinance. Injunction proceedings were brought against the parish (see Ray et al. vs. Parish of Rapides, 169 La. 691, 125 So. 856, 858) and the court held that “the police jury was not authorized of its own motion to disregard the official act of the registrar of voters on the ground that it was incorrect, or on the ground that it had become vitiated by the happening of a subsequent event, i. e., tlm alleged withdrawal from the petitions of a number of their signers.” And held further that “the presumption of law is that the facts certified to by the registrar of voters as appearing from the records of her office were correct, and that presumption must stand until it is rebutted by affirmative evidence of its incorrectness, adduced on the demand of the proper party or parties before the proper tribunal.”

The purpose of the present suit brought by the police jury is to have stricken from the protesting petitions the names of those who withdrew subsequent to the date on which the registrar of voters made her certificate and prior to the date on which the petitions were filed with the police jury, and to have it decreed that said protesting petitions did not as a matter of fact contain the names of 10 per cent of the registered voters on the date fixed for the consideration of the ordinance.

The lower court held that any of the voters who had signed the protesting petitions had a right to withdraw their names therefrom previous to the date set for acting on the ordinance, and it ordered sixty-six names erased, and the ruling to that effect is conceded to be correct. The effect of the court’s ruling that these voters had a right to withdraw and did withdraw their names from the protesting petitions is that the petitions should be considered as though the names of the voters who withdrew had never been signed to them. The petitions signed by the protesting voters were presented to Mrs. David, the registrar of voters, and she found that they were signed by more than 10 per cent of the registered voters of the parish and she made her certificate to that effect on April 13th, and her certificate as of that date was the one which was before the police jury on July 16th, when it convened to consider the ordinance.

In making her certificate, the registrar took into consideration only the total number of registered voters and the total number of those who signed the protesting petitions. She certified the facts as she found them on April 13th. On the trial of the case, Mrs. David testified that if sixty-six names were stricken from the protesting petitions, as presented to her on April 13th, those petitions would have contained less than 10 per cent of the registered voters of the parish. Subsequent to the date on which she made her certificate, sixty-six persons withdrew from the petitions, and it was held that they had a right to withdraw. It therefore follows that the certificate made on April 13th, while being correct as of the date made, did not show the real situation as it existed on July 16th, after the withdrawals.

Under section 6 of the act, a police jury is not authorized to act “if on the day set for the consideration of such ordinance” petitions protesting the levying of such tax, signed by 10 per cent of the voters, were filed with it. Conditions as they existed on the date set for the hearing control.

The presumption that the registrar’s certificate showed the facts as they existed on July 16th has been rebutted by affirmative evidence to the contrary adduced in the proper tribunal on the demand of the proper party. While the police jury was not authorized of its own motion to disregard the official act' of the registrar of voters, it has been shown by this suit that the registrar’s certificate became “vitiated by the happening of a subsequent event”; that is, the withdrawal from the petitions of a number of signers.

The police jury asked that the court decree that the petitions as they were presented on July 16th contained 'the names of less than 10 per cent of the voters. The district judge refused to so decree on the ground, so we are informed by plaintiff’s counsel, that Ray et ah, who were plaintiffs in the former suit, were not made parties to this suit. The suit in which they were parties is long since final and has no connection with present litigation. They were not necessary parties to this suit.

It is therefore ordered that the judgment appealed from be amended to the extent of decreeing that the protesting petitions contained less than 10 per cent of the registered voters of the parish when presented to the police jury on July 16, 1929; and as thus amended, it is affirmed.


text:
    No. 3793
    Second Circuit
    STATE OF LA. EX REL. SILL v. EXAMINING BOARD OF MASTER ELECTRICIANS OF THE CITY OF SHREVEPORT
    (July 5, 1930. Opinion and Decree.)
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for plaintiff, appellant.
    Galloway & Johnson, of Shreveport, at-' torneys for defendant, appellee.
   ODOM, J.

Under an ordinance of the city of Shreveport, no person is permitted to engage in the business of installing or repairing electric motors, dynamos, conductors, fixtures, etc., without first obtaining a master electrician’s certificate from the examining board of master electricians. ' Eddie O. Sill, the relator, applied to the board for such certificate. The board gave him the examination required by the ordinance, examined and graded his papers, but refused to grant the certificate on the ground that he failed to make the prescribed grade, which is 75 per cent. Whereupon relator instituted this mandamus proceeding against the board and its members praying that “a writ issue commanding it to certify relator to be entitled to a certificate as a Master Electrician and to cause such certificate to be issued to' him.” The lower court rejected his demands, and he prosecutes this appeal.

We shall not go into the detail of stating all issues raised by the pleadings, nor shall we discuss the legal points presented in the preliminary stages of this proceeding, for the reason that the issues originally presented have narrowed to one, and the law points raised by counsel ■ for • re- . lator have been conceded by counsel for the'board, and those raised by counsel for the board are conceded by counsel for relator. ...

It is conceded by both sides that the du-. • ties and functions of the board of examin- ■ ers and its mémbers as relate to the. mat- ’ ter -of "grading examination papers of an applicant for a certificate and the Wring of the grade or percentage made are ¡purely discretionary; that the active members of the board, who are themselves master electricians and appointed for the purpose of conducting such examinations, are the sole judges of the proficiency and skill of an applicant for a certificate; and that being true, it is conceded that mandamus will. not lie to hinder, regulate or control their actions in regard to such matters, unless it manifestly appears that their actions have been arbitrary, unjust, or discriminating.

Counsel for relator, in brief filed in the district court, say:

“We do not ask the Court to examine relator’s papers and determine whether or not he deserved a passing grade.”
Counsel do not ask that we do that nor could they reasonably make such request. But, in the elaborate brief filed with us, they say:
“The relator contends:
“(1) That the action of the Board in the grading of his paper and refusal of cer-. tificate, influenced by the interference of others, was arbitrary and not a bona fide exercise of the limited discretion vested in such boards;
“(2) That he is entitled to a certificate since it is admitted that the two best grades would have brought about s result of more than 75 per cent.”

Arguing the first point raised, counsel say that the testimony adduced on the trial establishes the fact as contended by them that the board and its members were swayed against relator by outside influences, that the master electricians of the city did not want relator qualified, and that they intervened and influenced the members of the board to so grade relat- or’s papers as to cause him to fail, regardless of his merits, and therefore the percentage found was purely arbitrary.

On this point, the district judge before whom the case was tried on its merits, in a written opinion in which he discussed in detail both the facts and the law, said:

“There is nothing tangible in this record, from what we can conclude, that the Board acted arbitrarily in its grading of relator’s answers.”

We fully concur in that view. There is nothing whatever in the testimony to indicate that the members of the board were swayed in the slightest degree by outside influences.

According to the testimony of the members of the board, it usually takes one day for an applicant to answer the questions. The examination of relator extended into the fourth day, and was only partially completed, and there was some objection to the length of time given relator raised by the Electrical Contractor's Association. The board suspended the examination for a short time and held a meeting. What took ¡place at the meeting is not disclosed. The examination was resumed and completed. The active members of the board, the electricians who conducted the examination, say they received no impression from the members of the' Electrical Contractor’s Association as to whether they wanted a certificate granted to relator or whether they did not. They say further that they had no interest in the matter except to perform their duty as members of the board of examiners; that they entertained no feelings of prejudice against the applicant; that it was a matter of indifference to them whether relator obtained a certificate or whether he did not. It is argued that the mere fact that these outsiders intervened is sufficient basis for a holding that the members of the board were influenced and acted arbitrarily against relator; We cannot so hold, in the absence of any testimony that the contractors did by letter or word of mouth communicate .their objections, if indeed they had any, to relator’s obtaining a certificate, and in the absence of any showing that the members knew or suspected that the outsiders were against relator or tfiat the board or its members were or could have been influenced had such desires been communicated.

Relator’s, papers were graded by three members of the board who are electricians. We have carefully gone into the method of examining and grading, and see nothing unfair or discriminating about it. The questions given relator to answer were the same or similar to those given other applicants, and were such as to test his knowledge of the business of installing electric motors, dynamos, fixtures, etc. When relator had finished his answers, the board had a meeting — that is, the three electricians got together with all papers before them, whe.reupon one member, it seems, read the question, another read the answer thereto, and the third kept a record of the grades. The questions and the answers were read in the presence of all three members of the board and, if the three considered the answer correct, a grade or percentage of 100- was allowed, and this was marked on the face of the paper. If it was found that an answer to the question was not wholly but partially correct, the three members of the board in consultation established and fixed a grade. If there was a difference of opinion among the three members of the board as to the proper grade, each member stated the grade of percentage which he thought the particular answer would merit; the different grades or percentages as fixed by the members were totalled and divided by 3, thereby obtaining an average, which average was finally agreed upon as the correct grade or percentage to be given under that particular question. At the conclusion of the examination and the fixing of the grade agreed upon for each separate question and answer, the board tabulated the results, added the grades allowed under each question and answer, and divided the total by 50, the number of questions asked. The result was an average of 74.3.

As already stated, this was the method pursued in all similar cases, and it does not appear to this court to be unfair.

The second point raised is that the two best grades should have been accepted, that is, in all cases where there was a difference in opinion among the three members as to what percentage should be allowed under a given answer, the two highest should be accepted and the low grade eliminated. It is purely discretionary with the board as to what method it should pursue in arriving at the proper grade or percentage an applicant should be given on his examination. The court will not interfere and substitute its judgment for that of the board in such matters. The method pursued in this case was the same as used in all similar cases, and appears to be fair.

It is finally suggested that, inasmuch as the applicant’s grade was 74.3 or .7 of 1 per cent below the passing grade of 75 per cent, he should be given a certificate. The court cannot order that such be done. The passing grade fixed by the ordinance is 75 per cent. An applicant who fails to make that grade is not entitled to the certificate. This applicant failed to make the grade. The court will not interfere.

The judgment appealed from is correct, and it is affirmed, with all costs.


author: ELLIOTT, J.

text:
    No. 649
    First Circuit
    NICKERSON & VENNARD v. BUTCHER
    (June 30, 1930. Opinion and Decree.)
    Mouton & Debaillon, of Lafayette, attorneys for plaintiffs, appellees.
    Debaillon & Meaux, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

Nickerson & Vennard, a firm composed of John C. Nickerson and Wickliffe B. Vennard, brought suit against Louis Butcher for $425 with interest, claiming said amount as commission on a sale of real estate which the said defendant had made through Mike Donlon, another real estate agent, after having previously listed his property with them.

Defendant listed his property for sale with the plaintiffs by written contract in July, 1925, and the contract expired December 1, 1925. The price at which the property might be sold by plaintiffs was fixed at $10,000; terms, one-third cash and the balance in 1 and 2 years, the plaintiffs to receive, as their compensation for selling it, 5 per cent on the amount, for which it was sold.

No sale was effected under the contract mentioned, but having been renewed, it fixes the price at which plaintiffs were authorized to sell, and the commission to which they were entitled under the extension, which will be presently stated.

On January 1, 1927, defendant listed his property for sale with Mike Donlon, by contract to endure for six months.

On February 15, 1927, defendant renewed his above-stated contract with the plaintiffs by an agreement in the following words written over the top of the former contract;

“This listing is hereby extended to May 15th, 1927.”

On February 25, 1927, the property was contracted to be sold through Mike Donlon for the price and sum of ' $8,500, of which amount the sum of $3,500 was deposited with Mr. Butcher to he applied as part of the price and was at the same time to stand as earnest money. The final act of sale was to be passed on January 14, 1928.

The defendant contends that his signature to said renewal contract with the plaintiffs was obtained. by fraudulent misrepresentations on the part of Mr. Vennard, of' the plaintiff firm, and that it is therefore not binding on him. He also contends that he is not liable to the plaintiffs, for any commission, because they did not effect a sale under the renewed contract. He further contends that the promise of sale which he executed through Donlon on February 25, 1927, and carried out January 14, 1928, did not interfere with plaintiffs in carrying out the agreement entered into with them, and that he is not liable to them for any commission on that account.

The promise of sale which defendant entered into with Henry Bendel was carried out on January 14, 1928, by the payment of $5,000, the balance of the price, and the execution of a formal act of sale; the act in terms referring back to and being based on said promise of February 25, 1927.

The defendant wrote plaintiffs through Mike Donlon the next day following the execution of said promise, notifying him that he had sold his property, etc.

And the next day after getting this notice, Messrs. Nickerson and Vennard called on Mr. Butcher at his residence, complained to him of the .course he had pursued in listing his property with and selling it through Mr. Donlon after having listed it with them, and requested payment of 5 per cent on the price of sale as stipulated in the renewal contract with them.

Defendant made reply to plaintiffs’ complaint and request for payment, as follows.;

“Q. When did Mr. Vennard .and Mr. Nickerson call at your house with reference to the commission which they claimed was due them by you?
“A. The next morning Mr. Vennard and Mr. Nickerson came home and I was at the house and I met them and they told mb they had come for a settlement of their commission. I told them I made a promise of sale, but Mr. Donlon had made the deal. And after they called for the commission I told them I would see them later in the day or tomorrow, because I wanted to' look after my papers, if I owed them or not. I told them if I owed them anything .1 would pay them, because I never refused to pay what I owed legally. And they offered to settle on one-half commission to make a settlement right away. I told them if I owed them a commission I would pay them all, but I did not think I owed them anything.”

This occurred on the second day after the promise of sale had been executed, and the twelfth day after the signing of the renewal contract. If defendant’s signature had .been obtained by the fraudulent misrepresentations of Mr. Vennard so recently made, Mr. Butcher would have felt a natural impulse to complain to them on the subject there and then. But taking his ■ own language, he did not charge Mr. Vennard! with the fraud alleged in his answer, but told them that he would see them later in the day or tomorrow, because he wanted to look after his papers to see if he owed them or not.

Defendant testifies that when Mr. Vennar'd called on him and requested a renewal of their former listing, he informed Mr. Vennard that he could not sign a renewal because he had listed his property with Mr. Donlon and did not wish to pay two commissions, and that Mr. Vennard induced him to sign the renewal, by making him the promise that if his firm effected a sale, his firm would expect only a half commission, and that through Mr. Donlon. That he signed, relying on this promise made him by Mr. Vennard.

Mr. Vennard, as a witness, denies that defendant told him on the occasion in question that he had listed his property with Mr. Donlon; that he did not wish to pay two commissions; and that he (Vennard) promised him that if he would sign the renewal and his firm effected a sale, they would expect only a half commission, and that through Mr. Donlon. Defendant’s failure, at the time Messrs. Nickerson and Vennard called on him, to complain of anything promised him in obtaining his signature to the renewal contract, is a circumstance which tends to support the denial of Mr. Vennard.

The burden of proof is upon the defendant to establish the fraud which he charges. Defendant produced a witness whom he contends corroborates him as to what Vennard promised him as a consideration for signing the extension, but the witness testified that he heard defendant say to Vennard that he could not sign it, and that is about all that the witness could remember hearing.

The fact is, defendant did sign the extension, and this written extension is supposed to recite the true agreement between the parties. The renewal refers to the original agreement; it contains nothing to the effect that the plaintiffs were informed that the property had been listed with Donlon and that if they effected a sale they would divide their commission with Mr. Donlon, so that defendant would not have to pay two commissions.

Vennard, as a witness, says that he wrote the extension, presented it to the defendant asking him to sign it, and that defendant signed it and he left.

As held in Calhoun vs. McKnight, 44 La. Ann. 575, 10 So. 788, and in many other similar cases, a charge of fraud is to be looked into closely for facts and circumstances which on their face appear to be all right, but which in fact operate as a fraud upon the complaining party. In this case the facts and circumstances do not indicate that defendant’s signature to this extension was procured by fraud.

In Conley vs. Nailor et al., 118 U. S. 127, 6 S. Ct. 1001, 30 L. Ed. 112, the court had occasion to consider a deed, the execution of which it was charged had been procured by fraud, and the court said:

“In order to cause a will or deed to be set aside on the ground of fraud and undue influence, it must be established to the satisfaction of the court that the party making it had no free will, but stood in vinculis.”

We therefore find that the weight of the evidence does not show the fraud of which the defendant complains.

As for defendant’s contention that plaintiffs did not effect a sale, the plaintiffs testify that they were trying to sell the property, but when they learned that defendant had executed the promise of sale in favor of Mr. Bendel on the terms mentioned, they looked on it as useless to make any further effort on their part. The price was $1,500 less than they were authorized to sell for, and the amount of earnest money which had been deposited with the defendant showed that the defendant was bound to carry out the contract.

The evidence shows that defendant well understood the meaning of the stipulation on the subject of earnest money, and that if he refused to carry out the promise he would not only forfeit the $3,500 received, but would have to pay over to Bendel $3,500 in addition. Therefore if plaintiffs be supposed to have effected a sale for $10,000, they would have been entitled to $500 commission. This $500 added to the $3,500 which defendant would have been compelled to pay over to Bendel would have amounted to $4,000, which, taken from the $10,000, would have left for Butcher only $6,000. Therefore Butcher would save money by carrying out his promise to sell to Mr. Bendel for $8,500.

Confronted with these facts, plaintiffs were justified in going no further, and in taking it for granted that defendant would carry out his contract, and that if they were entitled to any commission under their renewal contract, they might as well put forward their claim, as they proceeded to do.

Defendant further contends that his promise of sale made on February 25, 1927, to be carried out on January 14, 1928, did not interfere with the plaintiffs nor prevent them selling the property.

This brings back for consideration the amount of earnest money which defendant had received, concerning which we have already expressed an opinion. It is useless to repeat what we have said on that subject.

The defendant cited us the case of Clesi vs. Cooney, 164 La. 657, 114 So. 584, and O’Neal vs. Southland Lumber Co., 168 La. 235, 121 So. 755, as authorities for holding that his promise of sale to' Bendel did not justify the plaintiffs in claiming their commission. But we find that the situations in the cases cited are not comparable to the one we have in hand, therefore should not control the right of the plaintiffs in the case.

The lower court decided the casé in favor of the plaintiffs, giving judgment in their favor as prayed for.

The judgment is correct. Judgment af- . firmed.

Defendant and appellant to pay the cost in both courts.


text:
    No. 633
    First Circuit
    THOMAS v. LONG-BELL LUMBER CO.
    (June 30, 1930. Opinion and Decree.)

      Ped C. Kay, of De Ridder, attorney for plaintiff, appellant.
    Prank E. Powell, of De Ridder, attorney for defendant, appellee.
   ELLIOTT, J.

Dr. John H. Thomas was employed by Long-Bell Lumber Company to do their mill practice at De Ridder.

According to plaintiff, he understood by the term De Ridder that he was to do the mill practice only in the town of De Ridder, and that defendant’s practice at Bon Ami and Ludington was not within the region of his employment.

He claims in this suit that his work at Bon Ami and Ludington was extra work for which he is entitled as a quantum meruit to $3,300.

But according to Mr. Sailor, defendant's general manager, plaintiff’s region of employment was npt limited to the town of De Ridder; his employment gave defendant the. right to have him do their practice at Bon Ami and Ludington, nearby places, at which defendant also operated sawmills.

According to defendant’s manager, when plaintiff was first employed, the sawmill at De Ridder was operated by a' double shift, one of which worked in the daytime, the other . at night. That in the double shift there were working at the time in De Ridder 438 men. That afterwards their night shift was taken off, which reduced their employees at De Ridder to 281 men.

Concerning plaintiff’s work at Bon Ami, 'Mn Sailor’s ■ version of the matter is as follows:

“I explained to him that we were going to abandon our camp at Hoy; that we had Dr. Douglas looking after our men at Hoy, and in so much as we expected to move them into Bon Ami, I wondered if he couldn’t find time along with his present duties to take care of that work, so we could relieve ourselves of Dr. Douglas’ services.
“Q. That was the proposition you made to him? What did he say?
“A. He said, absolutely, he could take care of that work, he had plenty of time.”

The witness testified that plaintiff had only 30 or 35 men to be waited on at Bon Ami, the mill there having been closed down at the time plaintiff took charge of its practice. The testimony of Mr. Sailor as to what he claims to have said to Dr. Thomas at . the time he was placed in charge of defendant’s pi’actice at Bon Ami is quoted as showing defendant’s • contention as to the territory which plaintiffs employment covered. According to him, Bon Ami and Ludington were both within the territory of De Ridder.

We will not concern ourselves further about plaintiff’s service at Bon Ami, because defendant urged the prescription of three years against that claim. This plea of prescription was sustained in the lower court, and the record contains a written agreement entered into in the lower court whereby the plaintiff acquiesced in the ruling of the lower court, thereby eliminating from the case that part of plaintiff’s demand, reducing his demand to $1,500 for extra work done at Ludington. The evidence shows that defendant had also closed down its mill at Ludington at the time plaintiff was sent there, and that all but a few of the employees there had been released.

According to the evidence, at the time plaintiff took charge .’of defendant’s practice at Ludington the number of men there was less than were at Bon Ami, and his work at Ludington did not commence until his practice at Bon Ami had ceased.

Defendant’s object in having plaintiff look after its men at Ludington was in order that the regular physician -there might be released and the expense of his employment saved.

Plaintiff took over defendant’s practice at Ludington at defendant’s request, similar to that made when he took over the work at Bon Ami.

Defendant contends that there was no obligation on its part to pay plaintiff extra compensation. There was no expectation of paying on being paid, and nothing said about paying extra on that account.

There is a conflict in the testimony between the plaintiff and defendant’s manager on this subject.

The plaintiff says that when Mr. Sailor requested him to do the work at Bon Ami, he told him he could do anything for more money; but he admits that save for the statement which he claims to have made, himself, there was nothing said about compensation and no amount agreed on.

The plaintiff produced two witnesses who testify that they heard a man come up to plaintiff and ask him if he could do the mill practice at Bon Ami with his other work, and that plaintiff replied he could do anything for more money. These witnesses testified that they did not know the man who made the request. Mr. Sailor, defendant’s manager, denied having had any conversation with the plaintiff on the street at the place and in the manner described by the plaintiff and these witnesses.

The district judge for written reasons adopted that view. We have examined the testimony of the plaintiff and of these witnesses, and we are not convinced that the district judge was in error on the subject.

The plaintiff is a physician, and the evidence indicates that he supports himself by his practice. When he retired from defendant’s employment, there was a settlement between them, which defendant contends was a full and final adjustment and that plaintiff claimed nothing more. Plaintiff admits that he did not at the time make any claim to any further sum due him. Several months passed before plaintiff made claim for the compensation which he now contends is due him. If he had felt that the sum of $3,300 or a one-third or even one-fourth of that sum was due him by this defendant as a quantum meruit for his work at Bon Ami and Ludington at the time of their settlement, there would have been such a strong impulse on his part to bring it forward and have it acted on; that it requires a showing better than we feel has been made to establish that such a claim really existed, and was passed up with nothing said about it.

The plaintiff presents a very earnest argument in support of his claim, but the burden of proof was upon him to establish all material facts necessary for his recovery. If the facts be as he claims, he has nobody but himself to blame for not being in position to give more satisfactory proof in support of his claim.

The district judge rejected plaintiff’s demand.

There is no manifest error in so doing; it was the proper judgment to render, under the showing made.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


author: PER CURIAM.

text:
    No. 2707
    Second Circuit
    PHILLIPS-JONES CORP. v. CASKEY
    (June 2, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused hy Supreme Court.)
    Wm. H. Cook, of Shreveport, attorney for plaintiff, appellee.
    R. J. O’Neal and Huey P. Long, of Shreveport, attorneys for defendant, appellant.
   ON APPLICATION FOR REHEARING

PER CURIAM.

Counsel for appellant in his application for rehearing complains that the court did not give consideration to defendant’s plea of estoppel. While we did not, in so many words, overrule the plea, we did so in effect. The only defense made was that plaintiff had accepted a compromise offered and, having done so, was estopped. We have held that the compromise was not accepted by plaintiff. It follows necessarily that the plea of estoppel falls. A re-examination of the case has not caused us to change our views.

On application for rehearing, counsel cites the case of Stewart & Co. vs. Haas, 23 • La. Ann. 783. We have read that case and find that it is not in point. In the cited case, L, Haas repudiated a compromise made by his attorney on the ground that it was not authorized, and the court said:

“But of this there can be no doubt, that with a full knowledge of the agreement and of what had been done under it, he received his proportion of the funds distributed. He cannot be permitted to enjoy the fruits of the compromise and at the same time to repudiate the corresponding obligation imposed on him by it.”

In the case at bar, plaintiff not only did not authorize the settlement, but refused to accept “the fruits of a compromise.”

We may add that apparently the attorney in Shreveport who conducted the correspondence for his client, not the defendant in this case, but a creditor, understood that plaintiff had not agreed to the compromise, for in his letter of April 18th to plaintiff’s attorney he said:

“Please give me written authority to settle this matter off with this debtor and discharge him of further liability to you upon payment of 25c on the dollar. Upon receipt of this instruction, I hope to be able to close out with you and. the balance of the creditors and send you checks.’’

Neither plaintiff nor his attorney made reply to this letter, and without the authority and instructions asked for, the attorney later on sent plaintiff check for 25 cents on the dollar for his claim, which check was returned.


text:
    No. 632
    First Circuit
    McCONATHY v. NORTH AMERICAN ACCIDENT INSURANCE CO.
    (June 30, 1930. Opinion and Decree.)
    L. D. Woosley, of Leesville, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   ELLIOTT, J.

Sam D. McConathy brought suit against North American Accident Insurance Company on a policy which it had issued to him insuring his health, claiming $25 per week for 13 weeks and G days, amounting in the aggregate to $346.42, and for legal interest thereon from July 20, 1926.

He further claims of the defendant, in addition thereto, the sum of $346.42 with legal interest and attorney’s fees thereon as a penalty, under section 3 of Act No. 310 of 1910, a total of $692.84, interest and attorney’s fees not counted.

Defendant denies owing the alleged indebtedness. It alleges in its answer that plaintiff, in making his application for insurance, did not make a true disclosure of his previous and existing illness. That he secured the policy through fraud and misrepresentation in his application, which misrepresentations caused the policy to be null and void. That the policy provides that the disease must have been contracted more than 30 days subsequent to the issuance of the policy. That plaintiff’s illness arose less than 30 days after the issuance of the same. That plaintiff failed to give notice of other insurance, as required by the provisions of the policy.

Defendant prayed that plaintiff’s demand be rejected, but prayed in the alternative, and in case it was deemed liable, that it be held liable only for such portion of the indemnity claimed, as said indebtedness bears to the total amount of like indebtedness on all policies covering the same illness, and for the return of such part of the premium as shall exceed the prorata for the indebtedness thus determined.

Judgment was rendered in favor of the plaintiff for $346.42 claimed under the policy, but his demand for a like sum as penalty was refused.

The defendant appealed, and the plaintiff, answering the appeal, prays that this court allow the sum claimed as penalty.

Act No. 97 of 1908 provides that when a health insurance policy has issued without a medical examination it shall be presumed, whenever it appears that the agent of the company has had an opportunity to ascertain the true condition of the health, habits, or occupation of the assured, and has certified to the company the desirability of the risk, that the knowledge acquired, or which might have been acquired with reasonable diligence by the agent in securing the application, has been disclosed to his principal, and that it shall be further presumed that the company has waived its right to claim forfeiture of the policy, based on the grounds that the insured did not make true answers in the application as to health, habits, occupation, etc., whenever it shall appear that the agent knew or might have ascertained, with reasonable diligence, the true condition of the applicant’s health, etc., and knowledge of the agent in writing the application, or of the collector of the company in collecting the premiums from the assured, shall be imputed as notice to the company as to the health, habits, or occupation of the assured.

The policy sued on bears date June 1, 1926. The plaintiff .testified that he was in good health at the time the policy issued; that he was taken suddenly sick July 18, 1926, and his evidence is not disputed. He further states that defendant’s agent came to his house, solicited and obtained the insurance, filled out the blank which contains the answer which defendant sets up, and upon which the policy was obtained, and signed plaintiff’s name to the same. According to the plaintiff, and his evidence is not contradicted, defendant’s agent and plaintiff both lived at the time at Anacoco, which we understand is a small town in the parish of Vernon. The premium was paid to this agent, forwarded to the defendant, favorably acted bn, and the policy sued on issued to the plaintiff. Under the showing made, defendant’s agent will be presumed to have had an opportunity to ascertain all the necessary facts concerning plaintiff’s health, and certified same to the company. And the defendant company is further presumed to have waived its right to ask for the forfeiture of the policy on account' of the answers of the insured in making his application for insurance.

But the court .erred in rendering judgment in favor of the plaintiff for $346.42 under the policy, because the evidence shows that defendant’s alternative demand was well pleaded.

The policy sued on contains the following stipulation:

“If the insured shall carry with another company — , other insurance covering the same loss, without giving written notice to the company, then in that case, the company shall be liable only for such portion of the indemnity promised, as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such part of the pre■mium paid as shall exceed pro rata, for the .indemnity thus determined.”

When plaintiff accepted the policy sued on he agreed to this stipulation, and it is binding on him.' Civil Code, arts. 1901 and 1945.

The evidence shows that plaintiff carried insurance in the- Massachusetts Protective Assurance Association,. Inc., covering the same illness for which he claims indemnity from the defendant, and collected indemnity on said accqunt under said policy from Massachusetts Protective Association, and did not give written notice to defendant of this policy in Massachusetts Protective Association, Inc., as he should have done, and as the policy sued on required him to do.

•Plaintiff’s failure to give such notice .does..a way with his right to the penalty claimed under Act No. 310 of 1910, sec. 3. Defendant is furthermore liable as a result, “only for such portion of the indemnity promised as the said indemnity bears to the total’ amount of like indemnity, in all policies covering such loss, and for the return of such part of the premium paid as shall exceed the pro rata for the indemnity thus determined.” And the lower court should have so decreed. The lower court correctly held that defendant had waived the forfeiture urged in its answer, but its alternative demand and the above policy stipulation was not waived. The evidence does not show, however, how much Massachusetts Protective Association, Inc., paid the plaintiff on account of the illness of which he likewise claims indemnity of the defendant, and the amount cannot be determined from the record as presently made up.

The situation is such that we cannot render on this appeal the judgment that should have been rendered in the lower court. The case must therefore be remanded and re-opened for evidence on the subject mentioned.

For the reasons stated, the judgment appealed from, to the extent that the forfeitures urged in defendant’s answer are not sustained, is correct, and it is in that respect affirmed. But said judgment is contrary to the- law and- the evidence and therefore erroneous, to the extent that it is in favor of the 'plaintiff and against the defendant for $346.42, with interest thereon, and the policy stipulation above mentioned is not indorsed against the plaintiff.

The said judgment is therefore annulled, avoided; and set aside, and the case is remanded to the lower court for a new trial. The new trial to be for the purpose of receiving evidence in order to ascertain and to enable the lower court to determine the amount of indemnity, if any, due the plaintiff by the defendant, under the policy stipulation mentioned, after taking into account the amount of indemnity due and received by the plaintiff from Massachusetts Protective Assurance Association, Inc., under the policy in that company.

Judgment to be then rendered in the lower .court as the evidence shows to be proper in the case.

Defendant to pay the cost of the present suit in the lower court, plaintiff the cost of this appeal. Future cost to be paid as the law requires.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,302
    Orleans
    STATE EX REL. SEHRT ET AL. v. REGISTRAR OF CONVEYANCES ET AL.
    (June 16, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    Louis E. Jung, of New Orleans, attorney for plaintiffs, appellees.
    Woodville & Woodville, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is an appeal from a judgment on a rule to tax costs. The appellant Stanley A. Harvey was joined in a mandamus proceeding with the Registrar of Conveyances for the parish of Orleans, brought by John J. Sehrt and Sidney J. Courtin, for the purpose of erasing an inscription which the said Harvey had caused to be put of record in the conveyance office, and which effected certain property belonging to Sehrt and Courtin. The mandamus was made peremptory, and the Registrar of Conveyances was ordered to cancel and erase the inscription complained of. The judgment, however, failed to condemn Harvey, in fact, failed to mention his name. After the judgment thus rendered in the mandamus proceeding had become final, no application for a new trial having been made and no appeal taken, a rule was taken against Harvey and the Registrar of Conveyances in which, after reciting that the costs expended by plaintiffs amounted to $23.25, judgment was prayed for against the defendants in rule for that amount.

A judgment was rendered on that rule condemning Harvey to pay the costs referred to and dismissing the rule as to the Registrar of Conveyances. This appeal was prosecuted from that judgment.

The question presented for our consideration is whether a definitive judgment may be amended by rule so as to condemn a party defendant who, by inadvertence, was not cast in the original judgment. Our answer must be in the negative. The effect of the silence of a judgment with respect to one of two defendants is equivalent to the rejection of plaintiffs’ demand as to that defendant. State vs. Nephler, 35 La. Ann. 365.

All issues presented by the pleadings must be considered as disposed of by final judgment, whether the judgment .be silent as to some of them or not. Johnson vs. Mattie, 6 Orleans App. 218.

Code of Practice, article 556, declares that definitive judgments may be revised, set aside, or reversed by a new trial, by appeal, by action of nullity, or by rescission.

Article 548 of the Code of Practice reads as follows:

“A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge can not alter the same, except in the mode provided by law.” See Cassard vs. Tracy, 52 La. Ann. 835, 27 So. 368, 49 L. R. A. 272.

To interpolate Harvey’s name in the judgment would be a radical alteration which should not be permitted in the guise of an interpretation.

In the case of Factors’ & Traders’ Insurance Company vs. New Harbor Protection Company, 39 La. Ann. 583, 2 So. 407, 409 where a rule was made absolute allowing interest in a judgment where none was allowed in the original judgment upon - the ground that in so doing the judgment was merely interpreted and not altered, the court said:

“The judgment appealed from, under the guise of a professed interpretation, is really an amendment and alteration of the original judgment, in clear violation of the laws on that subject. Code Pr. 547, 548, 556.”

See, also, American Multigraph Sales Co. vs. Globe Indemnity Co., 11 La. App. 358, 123 So. 358, and authorities therein cited.

There being no judgment rendered against Harvey, he cannot be condemned to pay costs.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the defendant Stanley A. Harvey, dismissing the rule to tax costs in this proceeding.

JANVIER, J.

(dissenting). I think that in matters of this kind it is not essential that the judgment in express terms state that it is in favor of one party and against the other. If it orders done that which one party prays for, and which the other resists, it is obviously in favor of the one and against the other. Here Harvey had caused the inscription to be registered in the office of the Registrar of Conveyances. Relator sought the erasure of the inscription. The Registrar of Conveyances was a nominal party, but had no real interest. The judgment ordered the erasure of the inscription. I cannot see how it can be said that that judgment may be construed as a judgment in favor of Harvey merely because, in addition to the ordering of the erasure of the inscription, the judgment did not contain the words ‘‘against Harvey.”

The Registrar of Conveyances manifestly had no interest in the subject-matter of the suit, and the only party who did have such interest was Harvey. It was not even necessary, in my opinion, that the judgment mention the fact that it was rendered against the Registrar of Conveyances. It is very evident that that party was included in the judgment “eo nomine,” because action on his part was required. In a case such as this the fact that the name of the main defendant is omitted from the judgment cannot give rise to the presumption that, by reason of the omission, it was intended that the judgment should not run against that defendant. I concede that the usual rule is that, where several parties are made defendants and a judgment is rendered against some and one is not mentioned therein, it must be assumed that that one was intentionally omitted and that the judgment is in his favor. Soniat vs. Whitmer, 141 La. 235, 74 So. 916; Kimbro & Theriot vs. Warmoth, No. 7507 Orleans App., see Louisiana and Southern Digest.

But this is nothing more than a presumption and will yield where, to apply such a rule, would entirely nullify the rest of the judgment. Here we cannot assume that the trial judge, by leaving out. the name of Harvey as one of the defendants cast, .intended to render a judgment in his favor, because the only issue adjudicated upon was decided adversely to Harvey and to no one else. The doctrine announced by this court in Jurgelwicz vs. National Surety Co., 12 Orleans App. 298, is applicable here. In the syllabus written by the court appears the following:

“Although as a general rule the silence of a judgment as to some demands where others are passed upon between the same parties is equivalent to a rejection of the demands not passed upon, nevertheless this is a mere rule of interpretation and has no application where to enforce it would do violence to the rest of the judgment.”

In determining what a judgment means, recourse may be had to the pleadings and to the entire record. Sharp vs. Zeller, 114 La. 549, 38 So. 449; Peniston vs. Somers, 15 La. Ann. 679. If we refer to the record here, we find that the only relief sought was the erasure of the inscription, the only person who had an interest in resisting that erasure was Harvey, and the judgment ordered the erasure. Therefore the judgment was against Harvey, though he was not' mentioned therein.

In City of New Orleans, vs. City Hotel et al., 27 La. Ann. 470, our Supreme Court dealt with a situation very similar to that which confronts us. There a suit was filed against the City Hotel, R. S. Morse, and James E. Zunts. The judgment as rendered was against City Hotel and no mention was made therein of the other two defendants, Morse and Zunts. These two other defendants, however, appealed from the judgment.

In holding that the judgment as rendered should be interpreted by reference to the record, and that Morse and Zunts should be considered as parties cast by the judgment, the court said:

“This proceeding was had in the case entitled City .of New Orleans v. City Hotel, R. S. Morse and James E. Zunts, with the proper number on the docket. These two parties applied for and obtained an appeal, alleging that they are aggrieved by the final judgment rendered herein.
“We think there can be no doubt, under these circumstances, that the appellants were the parties who were condemned in this judgment, which must be construed with reference to the pleadings in the case and the obligation sought to be enforced.”

In Barus vs. Bidwell, 23 La. Ann. 296, the Supreme Court again decided a matter involving the same principles. The judgment appealed from was rendered against the defendants jointly. Execution was issued against one of the defendants for the full amount. This execution was sought to be enjoined on the ground that the judgment was not solidary, and that the judgment debtor against whom execution was sought could only be held jointly. The court said:

“Although the judgment was against the acceptor and the drawers for the amount of the draft, the words in solido being omitted, we think the plaintiff, the acceptor, is bound in the decree for the full amount thereof. It is an established rule that judgments, as between the parties, must be construed with reference to .the pleadings and the nature of the obligation declarefl on, and although the obligation of the plaintiff was not solidary with, the drawers, yet as acceptor he was bound for the whole debt, and the judgment against him must be construed as binding him for the full amount thereof. Bell v. Massey, 14 La. Ann. 831; Peniston v. Somers, 15 La. Ann. 679; Bonvillain v. Bowig, 16 La. Ann. 365; Prall v. Peet’s Curator, 3 La. 283.’’

The record here shows that the defendant was really Harvey, and that the judgment ordered done that which Harvey resisted. The judgment was, therefore, against Harvey. Under Code of. Practice, art. 549, the costs should follow the judgment. Thus, even in the absence of a rule to tax costs, Harvey could have been required to pay them. The rule did no more than could have been required by the judgment, except that it established the amount of the costs.

I respectfully dissent.


author: MOUTON, J.

text:
    No. 679
    First Circuit
    WHEAT ET AL. v. BAER-THAYER HARDWOOD COMPANY
    (June 30, 1930. Opinion and Decree.)
    Brock & Carter, of Franklinton, and Hathorn & Williams, of Poplarville, Miss., attorneys for plaintiffs, appellants.
    Ott & Johnson, of Franklinton, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiffs instituted this suit for the recovery of an interest in a tract of land in Washington parish.

The defendant claims title to the land by the prescription of ten years, by virtue of a deed or sale from John H. Cassidy and Daniel E. Sheridan, which was offered in evidence by defendant but is not in the record.

The acquisition of an immovable by the prescription of ten years must be based on a legal title and sufficient to transfer the property. Civ. Code, art. 3479. The title not being in the record, it is therefore incomplete.

The clerk of this court is therefore ordered to return the record in this case t.o the clerk of the district court of the parish of Washington, who is hereby ordered to complete the record herein by inserting the deed or title offered by defendant by which it claims to have acquired a transfer of ownership from John H. Cassidy and Daniel E. Sheridan, and to return the record so completed to the clerk of this court within thirty days from the reception of this order.


author: WESTERFIELD, J.

text:
    No. 13,179
    Orleans
    DI GIOVANNI v. BRODTMAN
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    Pomes & McCabe, of New Orleans, attorneys for plaintiff, appellant.
    Frank Wm. Hart, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff seeks to re- I cover $6,102 as damages ■ for physical in- | juries which he'alleges to have been dúe to an assault and battery upon him by defendant without cause or provocation.

Di Giovanni, the plaintiff, and James Brodtman, the defendant, were, at the time of the alleged assault and battery, employees of the Johnson Iron Works, a shipbuilding corporation located at the 'foot of Bermuda street in Algiers. On the afternoon of January 21, 1929, a disturbance or altercation occurred, between a number of men working on the wharf of the shipyard and the police were sent for. Brodtman, who was a foreman, was present and accompanied the police to an alleged soft drink establishment known as the “Black Bottom,” situated near the scene of the disturbance, for the purpose of searching for a gun, said to have been concealed in that establishment by one of the men who had been placed under arrest. As he approached the “Black Bottom’’ he -was accosted by Di Giovanni, who appears to have had some friends among the men arrested, and denounced as a “four-eyed son of a bitch.” Brodtman returned to his work without resenting the epithet applied to him. Some three or four hours afterwards, or' about 7 p. m. of the same day Di Giovanni and Brodtman met again. Brodtman claims that, as Di Giovanni approached, he assumed a menacing attitude and that, believing that he intended to strike him, he knocked Di Giovanni down and continued to punch him until called away by a Mr. Ramsay, one of the employees of the shipyard. On the other hand, Di Giovanni testifies, and he is supported by at least one witness, that, as he approached Brodtman, his intention was to apologize and that he had, in fact, offered to do so, but that his overtures were rejected by Brodtman.

The case turns'upon the'i'ssue of fact as to which version of the occurrence is to be believed. We are satisfied that Di Giovanni was the aggressor in the afternoon; in fact, his testimony to the effect that he desired to apologize is an admission of that fact. Brod.tman, who, it appears, is accustomed to engage in fist fights and indulge in the use of obscene epithets himself, cannot be said to be a man of very delicate sensibilities, but in this instance it seems to us that the probabilities support his statement as to what happened prior to his assault upon plaintiff. It seems to us unlikely that a man of Di Giovanni’s type would seek out one whom he had abused for the purpose of making amends and be so acutely conscious of prior misconduct as to tender his apology. We should like to believe that, in every stratum of society, the amende honorable is practiced as a means of settling differences, without resort to violence, but our observation is to the contrary. In addition to our impressions, based upon the record, we observe that the trial court, with its more favorable opportunity for determining the credibility of the witnesses, found for defendant. Our conclusion, therefore, is that plaintiff was the aggressor and, under the well-settled jurisprudence of this state, he cannot recover. Fontenelle vs. Waguespack, 150 La. 316, 90 So. 662, 663; Smith vs. N. O. Public Service, Inc., 12 La. App. 692, 127 So. 16; Lide vs. Parker, 6 La. App. 648; Klinberg vs. Grisaffi, 6 La. App. 14; Picatacci vs. Palermo, '3 La.’App. 465. In the Fontenelle case it was said:

“If plaintiff was in fault in making an assault and battery upon defendant, he could not recover for the injuries inflicted on him, although the defendant was not justified in law in his conduct. The same rule applies to defendant as to his reconventional demand. It is not necessary for defendant to prove that he acted in self-defense in order to recover damages in re-convention from plaintiff. Unless the defendant provoked the difficulty by insults, abuse, threats, or other conduct, he would be entitled to recover, if plaintiff, without legal excuse, committed an assault and battery upon him. Either plaintiff or defendant, in order to recover, would have to prove that he was without fault in provoking the difficulty. The plea of self-defense may admin that the defendant committed an assault and battery on plaintiff, but it is clear that plaintiff could not recover, by virtue of such admission, if he was in fault in bringing on the difficulty, as alleged by defendant in his answer.”

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


author: JANVIER, J.

text:
    No. 13,286
    Orleans
    ORY BROTHERS ET AL. v. MULLER
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)

      Lubin F. Laurent, of New Orleans, attorney for plaintiffs, appellants.
    Frymire, Ramos & Lagarde, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Ory Brothers, butchers, obtained judgment against Edmond Muller for $672 for meat sold and delivered.

In an attempt to recover under that judgment they caused the sheriff to seize the property in which Muller and his wife and children resided.

Mrs. Muller, claiming to be the owner of the property in her separate paraphernal right, sought an injunction to prevent the sale of the property for the community debt.

The district court rendered judgment perpetuating the injunction, and the matter is now before us on appeal by Ory Brothers.

The suit by Ory Brothers was filed on March 20, 1929, and the judgment was rendered on May 18, 1929.

Prior thereto, to-wit, on November 22, 1928, Edmond Muller had executed an act of sale in which it was recited that, for the sum of $1,500, he had sold and transferred all his title and interest in and to the property to one F. T. Mclntire. On the same day Mclntire, in another act of sale, transferred the property to Mrs. Rosemah Sarah Muller, plaintiff in injunction here, wife of Edmond Muller, for $1,500. This second act of sale recited that Mrs. Muller was purchasing “with her own separate and paraphernal funds.”

There is in the record no proof that the value of the property exceeded $1,500 and it is not contended that the price paid by Mclntire, or that the price paid by Mrs. Muller was unconscionable.

Ory Brothers, through their counsel, contend that, as the property was bought by Mrs. Muller during the existence of the community of acquets and gains existing between her and Edmond Muller, the presumption is that it is community property and that it may he seized for a community debt regardless of whether it stands in the husband’s or in the wife’s name. Civ. Code, art. 2402.

“All property purchased during the existence of the community in the name of the wife is presumed to belong to the community, and, in order to rebut this presumption, the wife must show with legal certainty: First, that the price was 'her paraphernal funds; second, that it was administered by her; third, that it was invested by her. Civil Code, 2402; Stauffer vs. Morgan, 39 La. Ann. 632, 2 So. 98; Bachino v. Coste, 35 La. Ann. 570; Pearson v. Ricker, 15 La. Ann. 119; Knoblock v. Posey, 126 La. 610, 52 So. 847; Fisher v. Gordy, 2 La. Ann. 762; Shaw v. Hill, 20 La. Ann. 531, 96 Am. Dec. 420; Davidson v. Stuart, 10 La. 148; Dominguez v. Lee, 17 La. 296; Block v. Melville, 10 La. Ann. 784.” Otis et al. vs. Texas Co. et al., 153 La. 384, 96 So. 1, 4.

Counsel for Mrs. Muller concede that there is such a presumption, but call our attention to the authorities holding that, if the presumption is overcome by evidence proving the paraphernality of • the funds with which the property was purchased, then the property may not be seized for the community debt.

“The property continues to be considered as a community asset until the presumption. has been effectually destroyed by conclusive proof of the claim of separate ownership to it. (Rousse v. Wheeler) 4 Rob. 118; (Smalley v. Lawrence) 9 Rob. 214; (Graham v. Thayer) 29 La. Ann. 76; (Ford v. Ford) 1 La. 206; (Squier v. Stockton) 5 La. Ann. 741; (Forbes v. Forbes) 11 La. Ann. 326; (Huntington v. Legros) 18 La. Ann. 126; (Shaw v. Hill) 20 La. Ann. 531, (96 Am. Dec. 420).” Bachino vs. Coste, 35 La. Ann, 570.

“It is a well-settled question that all property acquired during the community is, presumably, community property. Without * * * dissent, doctrine and jurisprudence sustain that principle. It has none the less frequently been decided that it is by no means a conclusive presumption; that it may be shown by competent evidence that it is the property of one of the spouses, and not at all property of the community.” Bartels vs. Souchon, 48 La. Ann. 783, 19 So. 941, 942.
“The wife may, however, destroy that presumption by proving that the purchase price of property, bought in her name, was paid out of her separate funds.” Schwab vs. Hava et ux., 154 La. 922, 98 So. 420, 421.

The question then, which we are called upon to answer is: Has Mrs. Muller sustained the burden of establishing the paraphernality of the property? And this question can be answered only after an investigation of the facts as disclosed by the evidence in the record.

The following facts are fully established.

Some time prior to the events to which we have referred, Edmond Muller, the husband, had become indebted to Lafourche Lumber Company in the principal sum of $1,400, and, about five months prior to the filing of the suit of Ory Brothers, the lumber company had caused the seizure of the property in question, the title to which, at that time, stood on the records in the name of Edmond Muller. There is no controversy over the fact that, at that time, the property belonged to the community.

Mrs. Muller wrote to her brother-in-law,. Rene Muller, and asked him for financial assistance. Rene Muller went to St. Charles parish and, after investigating conditions, according to the uncontradieted testimony of one F. T. Mclntire, said:

“* * * That he positively would not do anything for Alfred Edmond Muller, who in his estimation had shown himself unfit to handle money, hut that he would put up the money for the benefit of Mrs. Alfred Edmond Muller and her children if it could he arranged so that Alfred Edmond Muller would not have anything to do with the property.”

: Thereupon- Rene Muller turned .over to Mclntire $1,400 with certain instructions, and on the 22d day of November, Mclntire. in carrying out those instructions, paid to Lafourche Lumber Company the amount düe it by Muller, took from Muller- the deed to the property to which we have referred, and then transferred it to Mrs. Muller in a deed, which, as has been already stated, recited that she, Mrs. Muller, was purchasing with her separate paraphernal funds. At that time Mrs. Muller was not consulted about the transaction, but she was called upon to sign and did sign the deed by which she acquired the property.

Her counsel now say that she purchased the property with funds donated to her by Rene Muller, but, in answer to this contention, we are told by counsel for Ory Brothers that a donation of cash can be made only by manual gift, and there was no manual gift here, since at no time was the money actually in Mrs. Muller’s hands.

., We believe that counsel for the creditor seeks to place on article 1539 of the Civil Code an, interpretation much narrower than was intended by the framers thereof, and that a manual gift of money, whatever may have been the views of the commentators to whom we are referred, may be perfect and complete without the actual transfer-ting of cash from hand to hand. An intention to give, consummated by a real delivery, is all that is necessary. In Succession óf Zacharie, 119 La. 150, 43 S.o. 988, the Supreme Court held, as a perfect donation of cash by manual gift, a deposit by the donor of money to the credit in bank of the donees.

Likewise, in Gibson vs. Hearn, 164 La. 65, -113 So. 766, it was held that a deposit of inoney in bank in the name of an agent constituted a donation by manual gift to the principal. -' ' ! ;

We see no reason why Mrs. Muller cannot be held to be the doxxee of the fund deposited by Rene Muller with Mclntire and used by him for a purpose devoutly desired and later thankfully accepted by her.

But, if it be conceded that there was no manual gift to Mrs. Muller of the funds in question, we do not see that the position of Ory Brothers is bettered by the concession for the reason that then the act by which Mclntire transferred title to Mrs. Muller really becomes an act of doxxation in disguise and, in the absence of any illegal purpose or unfair result, we know of xxo reason why the parties could not clothe the transaction in that form if they saw fit to do so.

In McWilliams vs. McWilliams, 39 La. Ann. 924, 3 So. 62, it was held that, if the price recited in the purpoi’ted act of sale was xxot intended to be paid, then the transaction was in fact a donatioxx in disguise.

In the absence of any showing that the valxxe of the property exceeds the price paid and that, thus, creditors have been defrauded, we do not see that any complaint caxx be made.

The sale by Muller to Mclntire for full cash consideration could not have been set aside as in fraud of creditors even though Muller may have been in a condition of actual insolvency at the time of that sale. Baldwin, Receiver, vs. McDonald, 48 La. Ann. 1460, 21 So. 48.

The Civil Code, in referring to sales by an insolvent debtor, provides in article 2658:

“ * * * He may, although insolvent, lawfully sell for the price which is paid to him. * * * ”

It is true that in certain instances sales by insolvent debtors have been set aside, but in each such case fraud on the creditors had been shown and actual loss had resulted. For instance in Swain vs. Kirkpatrick, 143 La. 30, 78 So. 140, 141, 20 A. L. R. 665, the court said:

“The conclusion is clear that the acts of defendants, taken separately and together, deterred bidding at the sheriff’s sale, except by one bidder.”

It is very evident from the above that the price paid by that bidder was considered by the court as below what would have been paid had there been competitive bidding.

In Fishel vs. Irwin, 132 La. 344, 61 So. 397,_ a dation en paiement of property was set aside because the court found that property worth $6,000 was given in payment of a debt of $2,000.

In Appleby vs.'Lehman & Co., 51 La. Ann. 476, 25 So. 132, 134, the court said:

“The question for the jury of the vicinity was whether the transaction was bona fide, or to hinder and delay creditors.”

Here, since we are justified in assuming that the price paid represented the full value of the property, no question of fraud on the creditors is presented.

The property definitely left the community when the husband, as head and master thereof, transferred it to Mclntire for a sufficient consideration. It could have been brought back into the community only by being repurchased with community funds; by being the produce of the reciprocal industry and labor of both husband and wife, or by the joint acquisition by the husband and the wife by donation. Civ. Code, art. 2402.

After it left the community, manifestly it was not repurchased with community funds. It is equally certain that it did not return as the result of the reciprocal labor or industry of the spouses, and a mere glance-at the testimony with reference to the mental attitude of Rene Muller, who produced the funds, shows that the last thing in the world intended by him was the donation of anything to his brother, the husband of Mrs. Muller. Plainly, then, the entire transaction constitutes a donation by Rene Muller, acting through the agent, Mclntire, to. Mrs. Muller, either of cash or of the property itself.

If we are right in our view that it was cash that was donated, then, under the authorities cited, it was complete when the money was given to Mclntire for Mrs. Muller’s benefit, as at that time the intention, to give, coupled with the actual delivery,, consummated the donation. But if it was' not the money which was donated, but the realty instead, then that donation was perfect because it was in authentic form.

, That Mrs. Muller did. not actually manage or administer the various transactions is of no importance, since, having been informed of them, she approved them, and now seeks to protect her rights resulting therefrom, and since the husband had nothing to do with the manager of any of those transactions.

The mistake under which counsel for the seizing creditor labors is in not distinguishing between a transfer in fraud of creditors and one in which no .wrong was contemplated nor consummated. Here we find community property presumably worth $1,-500. We find that the husband sells it for $1,500 and applies the proceeds to the payment of a community debt.

Have other creditors been defrauded because the party who produced the money and who, in exchange therefor, took over the title to the property at a fair price, now desires to give the property to the wife, not as an asset of the community, but in separate, paraphernal ownership? We think not.'

For these reasons we are of the opinion that the judgment of the trial court perpetuating the injunction is correct, and, therefore,

The judgment appealed from is affirmed.


text:
    No. 3839
    Second Circuit
    JOHNSON v. MAYOR AND CITY COMMISSION OF THE CITY OF NATCHITOCHES
    (July 5, 1930. Opinion and Decree.)
    Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellant. '
    Rusca & Cunningham, of Natchitoches, attorneys for defendants, appellees.
   ODOM, J.

The municipality of Natchitoches owns and operates a water and electric power plant and furnishes its inhabi-tants with water and electricity for power and lighting purposes. L. H. Johnson, the plaintiff, is a citizen of the city and owns and operates a hotel, and the city furnished him with water and electricity for his hotel. On November 3, 1929, the city rendered plaintiff a bill amounting to $156.30, which included $109.70 for power and light consumed, $31.60 for water consumed, and $15 for “stand-by” or breakdown charge. Plaintiff was willing to pay and tendered the amount of the bill, less the standby or breakdown charge, which he refused to pay. An ordinance of the city authorizes the superintendent of the water and light plant to discontinue the water and light service to any patron who fails to pay the current month’s bill within fifteen days after due. By virtue of this ordinance, the city, through the superintendent, threatened to discontinue all service, both for water and electricity, to plaintiff, if he did not pay the $15 standby or breakdown charge. Whereupon plaintiff brought this suit to enjoin the city from discontinuing its service ■to him, alleging that, if it did so, he would suffer irreparable injury. He prayed that the city be ordered to accept the amount tendered in full payment of the amount due by him, and prayed further that the court decree the standby or breakdown charge of $15 for one-half month’s service null and void, as the same was not legally authorized.

The case- was finally tried on its merits and resulted in a judgment for the city, recalling the preliminary writ of injunction issued add dismissing plaintiff’s suit. From this judgment, plaintiff appealed.

The charge of $15 made by the city against plaintiff is not for electric current actually used, but for the service of keeping his hotel connected with the city plant, and for maintaining on its line an additional amount of power or current to be used by plaintiff in case his own private light plant should break down or fail to produce sufficient current for his use. Plaintiff, it seems, had been using both water and electricity from the city’s plant, but erected a light plant of his own to supply his hotel. He expected to continue to use water from the city’s plant, and to use city current also, in case he needed it. When the city officials learned of this, they discussed among themselves the matter of requiring plaintiff to pay what is called a standby or breakdown charge, which is a service charge for maintaining a reservation of electricity on the line connected with plaintiff’s hotel to be available to him at all times over and above that which would be maintained for all other purposes, or, as stated by Mr. Burgdorf, the city superintendent, “a floating current subject to call at any time by the turning on of his switch.” Mr. Burgdorf explained that this extra power would have to be maintained on its lines by the city for current which might be needed and consumed by plaintiff to run his hotel, in case of an emergency. In other words, the city had to be prepared at all times to take care of plaintiff’s needs.

It seems that plaintiff would need, in case of an emergency, a maximum of 20 horsepower. He understood that the city was entitled to compensation for its service in maintaining on its lines this extra power for his convenience, for which service he was willing, it seems, to pay. But the city had never fixed any rate for service of this kind, and the city superintendent did not know what to charge and did not suggest to plaintiff what the same might be. However, the superintendent held an informal conference with the mayor and city commissioners at which it was agreed that plaintiff should pay $1.50 per horsepower per month, or $30 for the 20 horsepower needed. Whereupon the city superintendent wrote and delivered in person to plaintiff a letter reading as follows:

“If you intend to use the City as a standby in the operation of your plant, it becomes necessary for you to advise us as to the amount of wattage or horsepower you desire, as the standby charge is based upon same. The standby charges are as follows:
“Day and night service, $1.50 per 746 watts or 1 H. P., Daylight service, $1.00 per 746 watts or 1 H. P.
“The above is plus the amount of electricity consumed on our present rates.”

When plaintiff received this letter he was dissatisfied with the rate, and at once sought an interview with the mayor and commissioners with the purpose of protesting the rate demanded, his contention being that the rate was exorbitant. He hoped, he says, that he could get the matter of rates adjusted, but could not see the mayor and commissioners, and nothing was done. He went to the office of the mayor and city commissioners and asked the clerk of the commission council to show him the ordinance fixing the rates for services of this kind, and was told that there was none. In the meantime, his bill for October was rendered showing this charge of $15 for one-half month’s standby service. He had 'never agreed to pay the charge and refused to pay it, and, fearing that the city would carry out its threat to discontinue all service to him, he brought this suit.

The authority and right of the city to fix and collect from its patrons a reasonable rate for service as standby or breakdown charge is not an issue before the court, as it seems to be conceded that the city has such right. Nor is the city’s right to discontinue all service to a citizen and patron upon his failure to pay for service disputed. But the contention here made, and the only one, is that the city did not in fact legally fix a rate for standby services to be paid by plaintiff or anyone else and that, inasmuch as no such rate had been legally fixed or made, the plaintiff owes the city nothing; hence, the city is without right to discontinue service to him of water and such amount of current as he may use.

Our consideration of the issue involved has brought us to the conclusion that plaintiff’s contention is well founded. He was willing to pay and tendered to the city the amount charged for water and current actually used by him. But the city refused to accept that amount and threatened to discontinue that service if the standby charge was not paid.

If the plaintiff did not owe the contested item on the bill, certainly the city had no right to refuse to furnish him water and current, because he was willing to pay those charges. He did not owe the standby charge if, in fact, no rate for such service had been fixed by the municipal authorities. He did not and could- not owe for something not legally charged. The city had never by formal official action, by ordinance, resolution, or otherwise, fixed a rate to be charged its patrons for standby services, nor did it take any official action in plaintiff’s case. It is not shown that either the mayor or the superintendent had authority under the general law or under the city charter to fix such rates.

When the plaintiff built his private plant and made it known that he desired to maintain his connection with the city’s plant, the rate to be charged for the so-called standby service was discussed at an infoimial conference among the city officials, including the superintendent of the plant and the city attorney, at which conference it was agreed that plaintiff should pay the amount now claimed. But no official action was taken. It is not shown that this conference took place at a regular or special meeting of the city council, or even at the office of the city officials. In so far as the record discloses, the conference and discussion may have taken place on the street. Certain it is that no record or minutes of the meeting and discussion were made, and no ordinance or resolution adopted by the council fixing the charge or authorizing the mayor or any one else to fix it. Mr. Burgdorf, the city superintendent, it seems, thought that some official action should be taken, and asked if it would not be necessary that an ordinance be passed fixing the rate, and was told by the mayor that such was not necessary. The mayor, after this conference, instructed the superintendent to notify plaintiff that he must pay $1.50 per horsepower a month, otherwise his hotel would be disconnected from the city’s plant.

Municipalities are artificial beings or corporations created by the state, and, like all other corporations thus created, have certain delegated powers which can be exercised only in the manner prescribed by the law creating them. They can act only through their governing authorities. The governing authorities of the city of Natchitoches, as declared by Act No. 148 of 1912, are three commissioners, one of whom shall be mayor, who “shall have and possess, and the Commission and its members shall exercise all executive, legislative, judicial and administrative powers, duties and functions now had, possessed and exercised by the Mayor and City Council of the City of Natchitoches, as well as those conferred on the Municipal government of the State by the legislative enactments of the General Assembly, unless otherwise provided in this act” (section 4), and they “shall have an office in the City Hall or elsewhere as they may elect where all meetings of the Commission shall be held.” Section 6.

The rule universally recognized is that:

“The governing body of a municipality can act validly only at authorized meetings •duly assembled to the end that there may be conference and discussion of the measures proposed for corporate action. The individual aetipn of any member or the unofficial acts or agreements of all or part of the members are ineffectual and without binding force, and cannot be given validity by any subsequent action of the council. Joint, official deliberation as provided by law is essential to give validity to the acts of the council.” 43 Corpus Juris, sec. 754, page 497.

Learned counsel for the city contend that the city was operating the water and light plant in its private proprietary, and not in its governmental capacity, and that it was not necessary that the commission council adopt an ordinance fixing rates for this so-called standby charge. Acting in its private proprietary capacity, there are, no doubt, some administrative acts which it may perform through its duly constituted officials without being formally authorized by an ordinance or resolution. But to fix rates to be charged for service rendered by a municipally owned light plant is not one of them. That is a legislative function and municipalities can perform the legislative functions delegated to them only through ordinances, resolutions, or orders formally and officially adopted. Under the general municipal laws of this state, which apply to the city of Natchitoches, municipalities may own and operate public utilities, such as water and light plants, and are authorized “to fix the rates for the consumption of the service so furnished.” It will be conceded, of course, that the rates.for such services must be equal, uniform, and not discriminatory. They must apply to all classes, businesses, and individuals alike, and in order that they may so apply, and in order that consumers may know what rate is demanded, these rates must be officially fixed by ordinance and the proper record made and kept of them. Otherwise, one consumer might be charged one rate, and another consumer an entirely different rate.

With reference to the fixing of rates by a municipality being a legislative function, the following expression taken from the case of Mayor & Aldermen of the City of Knoxville vs. Knoxville Water Co., 212 U. S. page 1; 29 S. Ct. 148, 150, 53 L. Ed. 371, is pertinent. There the court said:

“Nevertheless the function of rate-making is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body, to whom the power of fixing rates in detail has been delegated. The completed act derives its authority from the legislature and must be regarded as an exercise of the legislative power.”

To the same effect is the holding in the case of San Joaquin Light, etc., Co. vs. Railroad Commission of State, 175 Cal. 74, 165 P. 16, where the Knoxville case, supra, was followed.

But even if it be conceded, and it is not, that a rate for standby service can be fixed otherwise than by ordinance, resolution, or order formally adopted by the governing authorities of a municipality, it certainly cannot be reasonably contended that such rate could be fixed without any formal official action whatever of the council and, as already stated, not only did the council fail to fix any rate by ordinance or resolution, but it failed to take any official action at all. No rate having been fixed, it follows that plaintiff did not owe the contested item on the bill, also, that if he did not owe the item, the city could not legally carry out its threat to discontinue its service to plaintiff for water and such amount of current as he might actually use.

In the alternative, it is urged by counsel for the city that plaintiff is estopped to dispute the charge here made, because he made use of the city’s current after he was informed by the superintendent what he would be expected to pay for the standby service. We find no merit in this plea.. Plaintiff did later use current from the city’s plant, and acknowledges his indebtedness for that service. But his so doing 'is not an acquiescence in the charge here disputed. He was already connected with the city’s plant, and was entitled to the use of its water and current. He made use of it, but refused all through to acknowledge the city’s right to deprive him 'of that service because of his failure to pay a charge never legally made. The judgment appealed from is erroneous and must be reversed.

Eor the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be reversed, and proceeding to render such judgment as should have been rendered by the district court, it is now ordered, adjudged, and decreed that the temporary restraining order or writ of injunction issued herein be maintained and made permanent; and that the city of Natchitoches, its commission council, and its superintendent of the water and light plant be and they are hereby prohibited from discontinuing the service to plaintiff for water and current; and further ordered that the city accept the amount tendered; and further adjudged that the charge of ?15 is illegal and void; all costs of'this proceeding to be paid by the city.