author: WESTERPIELD, J.

text:
    No. 13,758
    Orleans
    DRAGON ET AL. v. ANSARDI ET AL.
    (November 16, 1927. Opinion and Decree.)

      Oliver S. Livaudais, of New Orleans, attorney for plaintiffs, appellants.
    Sanders, Baldwin, Viosca & Haspel and Robert Weinstein, of New Orleans, attorneys for Mrs. David Savoie, appellee.
    Leander H. Perez, of New Orleans, attorney for Adam Ansardi, defendant, appellee.
   WESTERPIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action. The petition recites that plaintiffs, Arthur Dragon and Mrs. Julie Marie Dragon, wife of Lambert Dragon, are the children of Mrs. Euranie Barras, widow of Jacques Dragon, who died in the parish of Plaquemines on the 19th day of April, 1909, possessed of an undivided one-half interest in certain property described in the petition; that petitioners, the son and daughter, respectively, of Mrs. Euranie Barras Dragon, were recognized and sent into possession of said property as sole heirs; that Joseph Savoie was appointed administrator of the succession of their said mother and provoked a sale of the property described in the petition; that Joseph Savoie died in the parish of Plaquemines, leaving a last will and testament constituting his sister, Miss Josephine Savoie, his universal legatee; that she was recognized as. such and sent into possession of the property; that Josephine Savoie,' on December' 19, 1921, was plaintiff in a suit filed in the Twenty-ninth judicial district court for the parish of Plaquemines, wherein she averred that she had been put in possession of the property by judgment of that court as universal legatee of Joseph Savoie; that Joseph Savoie acquired the property from the succession of Mrs. Euranie Barras Dragon at sheriff’s sale on October 20, 1910, but that, for purposes of convenience, the property was put in the name of the late David Savoie, who acted as agent of Joseph Savoie in buying the property; that Joseph Savoie paid the purchase price, and David in nowise contributed to the purchase of the property other than allowing his name to be used for purposes of convenience: that the said David Savoie died on January 12, 1913, leaving as his widow in community Mrs. Nora Martin Savoie, and as his sole and only heir, Josephine Agatha Savoie, his daughter; that Joseph Savoie took possession of the property immediately on the purchase of same, and paid the taxes and continued in the possession until his death; that neither David Savoie nor Mrs. Nora Martin Savoie, his widow, had ever claimed ownership of the property, or exercised any rights in connection therewith; that Mrs. Nora Martin Savoie, individually and as natural tutrix, answered admitting the allegations of the petition, and that, after a trial upon the merits, there was judgment recognizing Miss Josephine Savoie as the true and lawful owner of the property in question; that Josephine Savoie died at her domicile in Plaquemines, parish on the 23d of December, 1927, leaving a will, which was duly probated, constituting Josephine Agatha Savoie her universal legatee, and that the said Josephine Agatha Savoie was recognized as such by judgment in the succession of her aunt under date of May 24, 1928; that under the law,' the sale of the undivided one-half interest in the property made by Prank C. Mevers, sheriff of Plaquemines, parish, to David Savoie for account of Joseph Savoie was and is an absolute nullity for the reason that Joseph Savoie “was not surviving partner in community, or ordinary partnership, nor an heir or legatee of the deceased, nor the holder of any mortgage or vendor’s lien on said property and that, as administrator of said estate, under Civil Code, article 1146, he was prohibited from purchasing by himself, or by means of a third person any property, movable or immovable, intrusted to his administration under pain of nullity and responsibility for all damages caused thereby; that the present owner, Adam Ansardi, had due notice of the fact that said sale was a nullity, or should have known of the nullity thereof for the reason that all the facts, as above recited, were placed of record by the registration and recordation of the judgments and documents in the Conveyance and Mortgage Offices of this. Parish, as above set forth.”

The petition concludes with a prayer for citation against Mrs. Nora Martin, widow of David Savoie (now wife of Ferdinand Colomb), individually and as natural tutrix of the minor, Josephine Agatha Savoie, and Adam Ansardi, and for judgment in favor of plaintiffs declaring the sale of the property in the succession of Mrs. Euranie Barras, widow of Jacques. Dragon, through Frank C. Mevers, sheriff, on the 16th day of April, 1910, and the judgment rendered in the matter of Miss Josephine Savoie vs. Mrs. David Savoie, No. 2412 of the docket of the Twenty-ninth judicial district court for the parish of Plaquemines, and the sale by Miss Josephine Savoie to Adam Ansardi by act executed before Frank J. Lobrano, clerk of court and ex-officio notary public for the parish of Plaquemines, on the 31st day of December, 1921, to be null and void and of no effect, in so far as it applies to the undivided one-half interest in the property therein described, which belongs to the succession of Mrs. Euranie Barras Dragon, and that there be further judgment recognizing said undivided one-half interest in the said hereinabove described property to he presently the property of the estate of Mrs. Euranie Barras Dragon.

To this petition, both defendants filed exceptions of no cause of action, and Mrs. Nora Martin Savoie (now wife of Fernand Colomb), the mother of Josephine Agatha Savoie, in addition, filed an exception of misjoinder.

The petition is unnecessarily involved, hut in its essence this suit is a petitory action in which plaintiffs claim title to an undivided one-half of certain'described real estate as heirs of their mother, to whose succession the property is alleged to belong, upon the ground that the purported sale of the property by the sheriff in their mother’s succession is an absolute nullity, because the purchaser, David Savoie, was a party interposed for Joseph Savoie, the administrator of the succession, who, under article 1146 of the Revised Civil Code, is prohibited from purchasing the property. The only necessary party to this action is the party in possession of the property, Adam Ansardi. The issue tendered is one of title. Beland & Johnson v. Gebelin, 46 La. Ann. 326, 14 So. 843. All that part of the petition which relates to the former litigation between the members of the Savoie family, resulting in a judgment recognizing the heir of Joseph Savoie, the administrator, as the owner, is mere surplus-age. When the time comes to prove the allegations with respect to the nullity of the administrator’s sale, the probative value of the evidence in that suit will be considered, if it is offered, but at present we are not concerned with it. Nor is it necessary to attack the several judgments of court affecting this property, because plaintiffs’ suit is based upon an absolute nullity, which requires no judicial declaration of nullity, since it has had no legal existence and may be ignored.

It is a rule of almost every system of jurisdiction that executors, administrators, and others acting in a fiduciary capacity cannot purchase the property of the estates they administer; they are mandataries; the same person cannot be both buyer and seller; nor will the law permit them to occupy a position in which the presumption is, that they would sacrifice the interests of others to the interests of themselves; trustees can never be purchasers; and what they cannot do directly themselves, they cannot do indirectly through the intervention of third persons; such sales., are null; and the nullity is absolute and incurable. Civ. Code, art. 1146; Harrod v. Norris, 11 Mart. (O. S.) 297, 13 Am. Dec. 350; Longbottom v. Babcock, 9 La. 44; Macarty v. Bond, 9 La. 351, 355; Scott v. Gorton, 14 La. 111, 33 Am. Dec. 576; Porter v. Depeyster, 18 La. 351; Succession of White, 9 La. Ann. 232; Wood’s Heirs v. Nicholls, 33 La. Ann. 744; Self’s Heirs v. Taylor, 33 La. Ann. 769; Succession of Hawthorne, 158 La. 637, 104 So. 481.

Nor do we consider that Mrs. Nora Martin Savoie, individually and as. tutrix, is a necessary party to this proceeding. It is objected that we cannot consider the exception of misjoinder since the matter was not passed upon below. Gordon v. Business Men’s Racing Association, 140 La. 674, 73 So. 768. There can be no doubt that an appellate court may not consider any question which has not been first determined by the court of original jurisdiction; consequently we may not consider the exception of misjoinder. But the exception of no cause of action filed on behalf of Mrs. Nora Martin Savoie seems to us sufficient to reach the point under consideration. Article 43 of the Code of Practice provides:

“The petitory action, or one by which real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person, who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee.”

In Dauterive v. Opera House Association, 46 La. Ann. 1316, 16 So. 170, the court said:

“In a petitory action it is competent for the plaintiff to set up the absolute nullity of any antecedent judicial proceedings, with the view of disembarrassing the title under which he asserts ownership of the property, without formally making the participants therein parties to the suit.”

The reason for the existence of a cause of action against Mrs. Nora Martin Savoie is based upon the erroneous idea that there exists a necessity for a judgment declaring the proceedings, by which she obtained title to the property, a nullity. In a proceeding of this kind, where, as has been said, the defect of the possessors in title results from an absolute nullity, there exists no necessity for a judicial declaration to that effect since, in the eye of the law, it has no existence whatever, and may be ignored. Plaintiffs’ suit must stand or fall upon their ability to establish by competent evidence the fact upon which they rely, to-wit, the sale by an administrator to himself of property under his administration through a person interposed. If this fact can be established, plaintiffs must succeed; otherwise fail.

For the reasons assigned, the judgment appealed from, in so far as it maintains the exception of no cause of action in favor of Mrs. Nora Martin, widow of David Savoie, present wife of Fernand Colomb, individually and as natural tutrix of the minor, Josephine Agatha Savoie, is affirmed. In all other respects, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that this cause be remanded to the Twenty-fifth judicial district court for the parish of Plaquemines for further proceedings according to law, and not inconsistent with the views herein expressed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 835
    First Circuit
    COHN FLOUR & FEED CO. v. MITCHELL
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)

      See also 17 La. App. 198, 135 So. 385.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, and Carroll Buck, of Amite, attorneys. for plaintiff, appellee.
    Rownd & Warner, of Hammond, attorneys for defendant, appellant.
   MOUTON, J.

Judgment confirming, a default was rendered in favor of, plaintiff company against defendant, December 23, '1930.

An appeal was taken from that- judgment, ■ January 6, 1931. '

On December 24, 1930, defendant obtained a rule against plaintiff asking for a cancellation of the judgment. The issu- . .anee of the rule against plaintiff company was obtained on the ground that the judg- - ment of default was confirmed at a time . when the court had informed counsel for defendant that it would not be in session, • and that it had therefore been improvidently allowed. The rule was dismissed.

The avenue of relief for defendant was by way of a motion for a new trial or some other proceeding.

A judgment becomes the property of him in whose favor it has been given; and the judge cannot alter the same, except in the mode provided by law. Code Prac. art. 548. Much less can he cancel or annul it except in the manner legally pointed, out.

A rule was not the proper proceeding for the cancellation or annulment of that judgment.

The foregoing disposes of the main contention of defendant.

The other complaint of the defendant is that plaintiff did not prove its claim against defendant.

The suit of plaintiff is on a promissory note which forms part of the demand. The minute .entry says that the petition, citation, return of the sheriff, with the record, were offered in evidence, and the judgment declares that it was rendered on due proof - of the demand of the plaintiff. This,,- it- seems,. constituted sufficient legal proof for the confirmation of the default.

The testimony adduced during .the trial is-not reduced to writing, unless at the request of one of the parties. Code Prac. art. 601; Rosenthal v. Rosenthal, 117 La. 786, 42 So. 270.

It was the duty of defendant and appellant herein ito secure a- statement of facts before appealing.. Code Prac. arts. 602, 603; Nugent v. Stark and Husband, 34 La. Ann. 631.

In such cases the presumption is that the district judge has acted upon proper and sufficient evidence. Rosenthal v. Rosenthal, 117 La. 786, 42 So. 270.

The claim for damages for a frivolous appeal is denied.

The writs of mandamus and prohibition issued by this court are hereby recalled, and the judgment of the district court is affirmed, with costs.


author: DREW, J.

text:
    No. 3999
    Second Circuit
    SILBERNAGEL ET AL. v. HARRELL ET AL.
    (January 14, 1932. Opinion and Decree.)
    Todd, Todd & Fraser, of Bastrop, attorneys for plaintiffs, appellants.
    Oliver & Digby, of Monroe, attorneys for defendants, appellees.
   DREW, J.

Plaintiffs, residents of the state of New York, instituted this suit in the district court of Morehouse parish against the defendants, both residents of Morehouse parish, Louisiana. The original demand of plaintiffs is one seeking to have the court decree a certain quit-claim deed executed by plaintiffs in favor of George P. Harrell, of date January 16, 1930, to be null and void for the reason. that said deed was procured by defendants through fraud and misrepresentation, and was executed by plaintiffs through error of fact, induced by the fraudulent misrepresentations of defendant George P. Harrell.

The alleged fraud and misrepresentation is contained in a letter written by defendant Harrell to one Charles Titche, agent of plaintiffs, wherein the plaintiffs were advised that they had no right, title or interest in the land in controversy and if they ever had any right, title or interest in said land, same had been lost by prescription. Plaintiffs alleged they acted on the faith of the representations in said letter and, believing they had no right, title or interest in said land, executed a quit-claim deed, and later, from examination of the records, found that they owned a one-sixth undivided interest in the land. In the alternative, they alleged the price paid by defendants was less than one-half the value of the land and that said sale should be set aside for lesion beyond moiety.

Defendants filed an exception of no cause of action to the original demand, which was sustained by the lower court, and later, by agreement of counsel, the ruling was withdrawn. and the exception referred to the merits. Defendants in answer admit that at the time of the death of the husband of one plaintiff and father of the other two under whom they are claiming he was the owner of an un divided interest in the S% of the SW% of section 30, township 21 north, range 5 east, Morehouse parish, Louisiana, the property described in the quit-claim deed plaintiffs are seeking to annul. They admit the letter alleged to have been written by George P. Harrell was written by him and that it merely contained his version of the condition of the title, as found by him from investigation, and was his honest conclusion concerning the title to said property. They admit the execution of the quit-claim deed, but deny that plaintiffs acted upon the representations made in the letter to Charles Titche from George P. Harrell, and alleged that the moving cause for the execution of the deed was the consideration of $200, to be paid by defendants. They further plead estoppel by deed and allege that the lis pendens filed by plaintiffs through their agent is null and void for want of authority on the part of said agent.

Defendants further admit the transfer from George P. Harrell to B. L. Beasley, the other defendant, and deny any collusion or fraud between them. Defendants further allege that the deed from plaintiffs to Harrell was a quit-claim deed, without warranty of title, and that plaintiffs only transferred such title as plaintiffs might own or assert and only such pretensions of ownership as they might own, and that the value of said pretensions and claim of title were not worth more than $100; that the pretensions and claim of ownership were very vague, stale and speculative. They deny all other allegations of plaintiffs’ petition.

On the day of trial, plaintiffs attempted to file an amended petition wherein they attempted to include another piece of land, which was omitted in the original petition. The court refused to allow the amended petition to be filed, and we find no error in its ruling on this point. The lower court rendered judgment for defendants, rejecting plaintiffs’ demands on both the original and alternative demand, from which judgment plaintiffs prosecute this appeal. Defendants have not appealed and have not answered plaintiffs’ appeal; therefore, the exception of no cause of action is not before us for determination.

The testimony of plaintiffs was taken by deposition and all three of them testified that they signed the quit-claim deed on the representations made in the letter from George P. Harrell to Charles Titche, and at the time they executed the deed, they did not believe they had any right, title or interest in the said property, and if they had known they were the owners of a one-sixth interest in the eighty acres, they would not have executed the deed. The letter upon which plaintiffs rely for annulling the deed reads as follows:

“West Monroe, Louisiana.
December 16, 1929.
“Mr. Charles Titche,
“Monroe, Louisiana.
“Dear Mr. Titche:
. “I am anxious to secure a quit-claim deed from the heirs of Albert Silbernagel on some property described as S% of the SW% of Section 30, Township 21 North, Range 5 East, Morehouse Parish, La., and since you represent them and act as their agent in and on some property owned by them in Sec. 22 Tw¡p. 22 R. 8 East in the same parish, I am asking you to take this up with them who I understand are residents of New York City.
“The above described land was owned at one time by Thos. R. Polk, and he died and left six children, and these children inherited a one-sixth apiece, and one of the heirs whose name was James Cecil Polk, seemed to have been in debt with' Albert M. Silbernagel and Benjamin Silbernagel, and he sold him their interest which was one-sixth of the above described eighty acres of land, this all happened in the year of 1877. Later other' parties bought this land I mean the other five-sixths, but this one-sixth was not transferred from the said Silbernagels.
“In purchasing this land my attorney has requested as a matter of precaution to secure if possible a quit-claim deed from the heirs of Albert M. Silbernagel. Of course, Mr. Titche you understand that prescription has run against this property being in (possession of another party for more than thirty years gives him a good title. It is almost an evident fact that Silbernagels sold this land but in 1879 a part of the records of Morehouse Parish were destroyed by fire and it appears that this transfer was destroyed, that is the deed, for other parties that -owned it, made transfers on the whole amount of acreage.
“Mr. Titche you understand and are well enough acquainted with the attorneys in this portion of the state to ,know how particular they are about these kind of things. They want to remove every little doubt or fear from a title before approving it. And this is a matter that amounts to very little, even if Albert M. Silbernagel had never sold this property his widow and heirs would have lost their claim by prescription. However I am willing to pay them something for signing me a quit-claim deed, if you will mail the enclosed deed to them and have them sign it and return to you I will ipay them $100.00, or rather I Will give you the $100.00 upon delivery of the deed to me, and I am sure that this will be satisfactory to them, and in addition I will pay you for your trouble.
“I am enclosing herewith a quit-claim deed, which I will ask that you have Mrs. 'Silbernagel and heirs to sign on the right hand side and the witnesses on the left hand side and page two of this quit-claim deed is a proof to be made by one of the witnesses to the signatures, after Mrs. Silbernagel and heirs have signed this deed, any one of them can take the two witnesses before a Notary Public or Commissioner, commissioned to make proofs on deeds in the State of New York and have this proof made.
“Mr. Titche I will ask that you please take this matter up with them, and ask them for an early reply as I am very anxious to get the matter closed, and the vendor or rather the man I am buying from is very much in need of his money.
“Thanking you, I am
Yours very truly,
“(Signed) George P. Harrell.
“Address:
“George P. Harrell,
“P. O. Box 3031,
“West Monroe, La.
"P. S. Mr. Titche please find out for me who Albert M. Silbernagel father was.”

The above letter was written by defendant Harrell to Charles Titche, the agent of plaintiffs, who had charge of plaintiffs’ property in Morehouse parish and upon whom plaintiffs relied for any and all things done regarding the property. The title, as disclosed by the abstract filed in evidence, is as follows:

In 1877, T. J. Polk conveyed to Silbernagel & Company a one-sixth undivided interest in the Polk plantation, which included the eighty acres herein involved, and in 1898 Benjamin Silbernagel conveyed to Albert M. Silbernagel, from whom plaintiffs inherited, all his interest in and to all real estate standing in the name of Silbernagel & Company, a firm composed of Benjamin and Albert M. Silbernagel. Under this deed, Albert M. Silbernagel became the sole owner of a one-sixth undivided interest in the eighty acres of land in question, and all other lands known as the “Polk Plantation.” In 1904, in a partition proceeding of the Polk plantation, Albert M. Silbernagel was recognized as a one-sixth owner and received one-sixth of the funds derived from the partition by lieitation. In this proceeding, the eighty acres in question were not included. For what reason, the record fails to disclose. After the partition proceeding the eighty acres in question were not assessed to anyone. It appears to have been dropped from the assessment rolls of Morehouse parish.

Plaintiffs’ agent, Titche, who was looking after the property of plaintiffs and seeing that the taxes were paid, did not pay' the taxes on this particular eighty, due possibly to the fact that it was not assessed, and he apparently had no knowledge that plaintiffs had any right, title or interest in the eighty acres. Albert M. Silbernagel at one time lived in More-house parish, but had not lived there for many years, and the plaintiff, his wife and daughters, had never lived in More-house parish, their domicile being always in the city of New York, and plaintiffs did not have knowledge that they owned the interest in the land involved in this case.

In the year 1917, Albert M. Silbernagel died in New York, and on December 6, 1919, plaintiffs were put in possession of all property left by him, as surviving wife and heirs. In the description of the real estate herein involved, the eighty acres referred to was not included. It was not assessed to plaintiffs and they did not pay the taxes on it. In 1928 or 1929, gas was discovered in the vicinity of this land which had apparently been lost by its owners and the assessors, and defendant Harrell undertook to discover who was the owner of it. He learned that it had at one time belonged to the Silbernagels and wrote Mr. Charles M. Titche, plaintiffs’ agent, as is shown by the above quoted letter. On January 7, 1930, Mr. Titche wrote the following letter to plaintiffs:

“Rayville, La.
January 7th, 1930.
“Dear Minn:
“I am enclosing two letters from August Leopold and George P. Harrell.
“Upon receipt of the one from Harrell I thought it well to ask of August if he knew anything of the transaction that I may have something at first hand to state to you.
“As the matter stands I shall express myself to you as I felt before receiving the letter from August. It looks to me you have no claim at all now from a legal standpoint. It is also more than probable the Silbernagels disposed of the interest as Harrell stated.
“I conclude it is now only a matter of how much you want for the quit-claim. I have had quite a lot of experience in this regard since gas has arrived, so my attitude has been one of fairness as best I could see it. If I had any claim at all I wanted the value otherwise what was offered to me was in the manner of a gift. I don’t want any commission and am only too glad to bring the matter before you and suggest its acceptance but if .you will write to me that inasmuch as there will be a long division between those of the family interested you think $150.00 would enable you to give each say $25.00! Then write to me separately to accept the $100.00 if no better, as you wish.
“All of us are well. Josephine has the same old trouble but is out some almost every day and enjoys a game of bridge as the month’s result even up. Believe me always your willing assistant and well wisher to all of you.
Affectionately,
“Charles.”

On January 18, 1930, the quit-claim .deed from plaintiffs to defendant Harrell was executed in New York, but was not delivered to Harrell until the last days of January, 1930. The letter of date January -7, 1930, from Charles Titche to Mrs. Silbernagel, addressed “Dear Minn” and signed “Charles” shows that plaintiffs’ agent, Titche, made some investigation of the title to the eighty acres of land, and the parol testimony shows that he took the matter up by letter with Mr. August Leopold, who advised him to take what he could get for the quit-claim deed. Mr. Titche forwarded both the letters from Mr. Leopold and Mr. Harrell to plaintiffs, with a letter he wrote plaintiffs advising them to sign the quit-claim deed, as is shown by the letter quoted above.

Plaintiffs testified that they acted solely on the letter from Mr. Harrell to Mr. Titche, but we are convinced that they acted upon the advice of Mr. Titche, their agent, and not on the Harrell letter. It is not shown that they were even acquainted with Mr. Harrell. He was a complete stranger to them, one they had never seen, and it would have been indeed strange for them to part with their property because he told them by letter they had no title. Plaintiffs had implicit confidence in their agent, Titche, and whatever action he took in regard to their property in Morehouse parish was always ratified by them. At the time of trial, their confidence in Titche had not been shaken. They did not accuse him of fraud or misrepresentation, neither did they allege he was misled by the letter of Mr. Harrell, and his letter to plaintiffs conclusively shows that Harrell’s letter did not mislead him, and that the advice he gave to plaintiffs was founded upon his own investigation made through Mr. August Leopold.

We are convinced that at the time plaintiffs executed the quit-claim deed disposing of their right, title and interest, if any they had — in other words, their pretensions to title to the eighty acres of land, they did not believe they had any right, title or interest in the land, and thought they were getting something for nothing. That in itself does not give them the right to have the sale annulled. The record, we think, discloses the fact that defendants did not know in whom the title to this land was, as it shows that they also took a quit-claim deed from one of the heirs of Benjamin Silbernagel and paid him $150 for it, when in fact the record discloses that he had no interest in said property. It is also shown that a small part of this land was under fence and had been for many years, being worked by some darkies who were not tenants of plaintiffs.

Article 1847 of the Revised Civil Code, and paragraphs 1, 2 and 3 thereunder, read as follows:

“Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules:
“1. Error is an essential part of the definition; an article that can not deceive can have no effect in influencing the consent, and can not injure the validity of the contract.
“2. The error must be on a material ¡part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it; but it needs not be the principal cause of the contract, as it must be in the case of simple error without artifice.
“3. A false assertion as to the value of that which is the object of the contract is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other.”

Title in plaintiffs to a one-sixth interest in this land was made apparent by the deed from Benjamin Silbernagel to Albert M. Silbernagel, recorded in conveyance records of Morehouse parish, and the object of the registry law is to make apparent the ownershp of property, and wherever such ownership appears on the public records by proper .titles, that object is attained. Notice is thereby given and no careful person can be deceived.

Lumber Co. v. Shadel, 52 La. Ann. 2097, 28 So. 292; Stockton v. Briscoe, 1 La. Ann. 249; Poydras v. Laurans, 6 La. Ann. 773.

Under this ruling of the court, the letter declaring that plaintiffs had no title could not have deceived them in the legal sense, and could not have injured the validity of the contract. Civil Code, art. 1847, par. 1; Laenger v. Laenger, 138 La. 540, 70 So. 501.

The recorded title in Albert M. Silbernagel was notice, not only to third persons, but notice to, those claiming under him, and, when defendants offered to purchase the right, title and interest of plaintiffs in this particular eighty acres of land, it was, we think, sufficient to put plaintiffs on inquiry as to what right, title or interest they had in the land. They had the same opportunity as defendants to examine the record or have it examined, •and, if they failed to do so, they cannot be relieved on account of their carelessness and negligence. Rocchi v. Schwabacher & Hirsch, 33 La. Ann. 1365; Forsman v. Mace, 111 La. 28, 35 So. 372; Pike v. Kentwood Bank, 146 La. 704, 83 So. 904; Davitt v. Long-Bell Farm Land Corp., 162 La. 59, 110 So. 88.

Mr. Titche, the agent of plaintiffs and by whose acts they were bound, testified that he did not have the title examined, for the reason that it would have cost $50 for an abstract and an attorney’s fee to have it examined. He satisfied himself that the plaintiffs had no title, and so advised them. Acting thereon, they executed the quit-claim deed and instructed him to get all he could from defendants. Defendants’ original offer was $100, and, after receiving the deed Mr. Titche suggested a consideration of $300, finally agreeing on $200, which was paid and the deed delivered to defendant Harrell, who soon thereafter conveyed the land to defendant B. L. Beasley.

If there was any misrepresentation by defendant, it would not have invalidated the deed, for plaintiffs could have detected the falsehood by ordinary attention, and, under the jurisprudence of this state and article 1847 of the Revised Civil Code, they are supposed to have been influenced more by their own judgment than the assertion of the other. There was a month and a half between the time of the offer made by defendant and the closing of the deal, a sufficient length of time for most any kind of investigation. The lower court refused to annul che sale on the original demand based on fraud and misrepresentation, and his judgment in that respect is correct.

The remaining question for determination is that of lesion beyond moiety. Defendants paid $200 for the interest claimed by plaintiffs of one-sixth of eighty acres, or thirteen and one-third acres. Defendants paid a little more than $15 per acre, and, unless this is less than one-half of the value of said land, the plea of lesion beyond moiety must fail. Plaintiffs offered proof of the value of the land, including the speculative value of the minerals, to be $100 per acre, and offered five witnesses' — one who fixed the value, less the mineral value, at $35 per acre; two, who fixed its value at $40 per acre; one at $25; and one at $50 per acre. Defendants offered six witnesses who fixed the value, less the minerals, at $10 to $12 iper acre, with the exception of one who placed a value of $25 per acre on the land. The entire eighty acres, with the exception of about two acres, is woodland, and is described as a “glazy” land with a big brake through the center of the place. No improvements of any kind are on it, and it is subject to overflow almost yearly. One witness testified that the only value the land has, outside of a speculative mineral value, is for the timber on it, and on which he placed a value of $10 per acre.

Without discussing the testimony of each and every witness, we are convinced that the plaintiffs have failed to prove the value of the land, outside of a speculative mineral value, to be in excess of twice the amount ¡per acre paid by defendants. It is incumbent on plaintiffs to make this proof by a preponderance of evidence, and they have failed. If the mineral value of the land can be considered, then plaintiffs ■'have made out a case of lesion beyond moiety. We do not think the speculative mineral value of the land can be considered in fixing the value of the land under a plea of lesion beyond moiety, and especially so since no development for oil or gas has been made on said land. The value of oil and gas that might be under the land was purely speculative.

The Supreme Court in the case of Wilkins v. Nelson et al., 155 La. 815, 99 So. 607, 609, and reaffirmed in Wilkins v. Nelson, 161 La. 437, 108 So. 875, said:

“At most, any value which may be fixed on the right is contemplative, speculative, and conjectural, not to say fanciful and theoretical. The seller who sells such rights, and the buyer who buys, does so with a speculative intent, and it is a matter of common knowledge that every real' estate owner uses his own judgment in estimating the sale value of his property.”

In Lockwood Oil Co. v. Atkins, 158 La. 610, 104 So. 386, 388, the court said:

“Moreover, it would be practically impossible to determine whether there had or had not been an enhancement in the value of an oil and gas lease, because from its inherent nature it is not susceptible of having anything more than a mere conjectural and speculative value. In a very recent case we said: ‘In the admitted speculative nature of the intangible right it is impossible that there could be any fixed and dependable valuation.’ Wilkins v. Nelson, supra.”

The same doctrine was announced in the case of Fernandez v. Wilkinson, 158 La. 137, 103 So. 537, and in the case of Fomby v. Columbia County Development Co., 155 La. 718, 99 So. 537, the court held that a mineral lease is not a contract which may be annulled for lesion beyond moiety.

In Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 863, 91 So. 207, the court held that the owner of the land himself has not absolute property in the oil, gas and water beneath the land, but only the right to draw them through the soil and thereby become the owner of them. This same doctrine was announced in Louisiana Gas & Fuel Co. v. White Brothers, 157 La. 728, 103 So. 23.

In White et al. v. Bergstedt, 164 La. 993, 115 So. 59, 60, the court said:

“In order to rescind a sale for lesion, the rule is that then plaintiff must establish, with legal certainty that the market value of the property, at -the date of the sale, was more than twice the amount the defendant paid for it. The record discloses that all of .the witnesses who testified on the trial of this case, as to the value of the land sued for, with one exception, say that, if the speculative value of tlie land for oil and gas purposes is disregarded, its market value is much less than twice the price the defendant paid for it.”

In the case of Demaret v. Hawkins, 8 La. Ann. 483, the court said:

“The right to rescind a sale for lesion beyond moiety, is the only restraint upon the liberty of the citizen to bind himself and his property according to the dictates of his own judgment; and the evidence relied on to establish lesion should be peculiarly strong and conclusive.”

In Erskine Heirs v. Gardiner, 166 La. 1098, on page 1102, 118 So. 453, the court held that the plea of lesion beyond moiety had no application to a sale of speculative interests and conjectural rights to immovables, but only the sale of immovables where the right is clear and the possession undisputed, citing Fernandez v. Wilkinson, supra.

In Wilkins v. Nelson, 155 La. 807, 99 So. 607, the court held that the right to withdraw oil and gas from the land was a servitude and that a servitude established on an immovable estate is declared to be an immovable, but such servitude to withdraw oil and gas from the land is a real and incorporeal right and is not regarded as an immovable in the sense in which the word “immovable” is used in article 1861 of the Revised Civil Code. It declared the right to extract oil and gas from the land to be an immovable by the disposition of the law, and when article 1862 of the Revised Civil Code restricted the action of lesion to immovables, it meant immovables which are such by their nature and not such as are made immovable by. disposition of the law.

The above cited decisions clearly hold that oil and gas under and in the ground are not subject to absolute ownership, that its value is purely speculative and could not be definitely fixed, and that an action for lesion beyond moiety will not lie to set aside a sale of the right to extract oil and gas from the soil. It is therefore obvious that in an action of lesion beyond moiety in the sale of land that the value of the land, less the speculative value of the minerals that might be thereunder, is the value to be considered in determining the case. ' The plaintiffs in this case have failed to prove with that certainty required in an action of this kind that the value of the land in question is twice the amount paid by defendants. The lower court so held and its judgment is correct.

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


text:
    No. 807
    First Circuit
    WHITE v. LOUISIANA WESTERN RY. CO.
    (June 16, 1931. Opinion and Decree.)
    Griffin T. Hawkins and Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellee.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff suffered a head injury in 1921, while in the service, of defendant company, then one of its employees. He brings this suit for the recovery of compensation under the provisions of the Employers’ Liability Act.

He returned to his work with the company about one month after the accident. He continued in the service of the company, and suffered with headaches, dizziness and such slight indispositions, until September, 1929, when he ascertained from his phsyician that he was afflicted with epilepsy, and was told for the first time that it was the result; of the injury he had received in 1921. The defendant company filed a plea of prescription of one year based on section 31 of Act No. 85 of 1926, p. 124, claiming that more than one year had run from the date of the accident which had occurred in 1921, and that plaintiff was barred from recovery.

Section 31 of Act No. 20 of 1914, p. 44, provides for the prescription of the action of the employee for compensation unless it is brought within one year from his injury or death. Here there is no death, and we will therefore address ourselves to the word “injury” used in the statute.

In Guderian v. Sterling Sugar & Ry. Company, 151 La. 59, 91 So. 546, the court held under act 1914 that prescription began to run from the time plaintiff became aware of the injury and not from its date.

In the instant case, plaintiff, after he was hurt, remained at home about one month, thought he had entirely recovered, and returned to his work. It was only after he suffered a stroke of epilepsy in September, 1929, that he became aware or conscious that he had suffered actionable injury, and not long after, within one year from the time he discovered that he was suffering from epilepsy, he instituted the present proceedings.

It was in September, 1929, that plaintiff realized or became aware of the injury he had suffered, and, having brought his action within one year from that time, under Guderian v. Sterling Sugar & R. Co., 151 La. 59, 91 So. 546, above cited, the prescriptible period had not yet accrued.

Counsel for defendant contend that under Act No. 85 of 1926, amending section 31 of Act No. 20 of 1914, (prescription begins to run, not from the injury, as previously provided, but from the date of the accident, and consequently, the accident having happened to plaintiff in 1921, much more than one year has expired since then, and that plaintiff’s action is prescribed.

In its pure literal sense, an accident means to arrive suddenly, to happen; an occurrence or event of whatever kind. According to this literal meaning, it would have to be held that the Legislature was referring to any sudden and unexpected happening or occurrence, whether any injury or damage had been suffered or not. It is obvious that the legislators could not have any concern with any occurrence of that character in the enactment of this statute. We say this because it was - enacted to provide compensation for damages which might result in personal injuries or death to employees while performing their services.

The word “accident” is also defined to be: “An unforeseen occurrence, particularly if it be of a calamitous character. This is the most common use of the word.” The Encyclopaedic Dictionary, vol. 1. This definition, according to the common use of the word, is in accordance with article 14, Civil Code, which says that the words of a law are to be taken according to their most usual signification, general and popular use.

It is in that sense that the word “accident” is used in the statue, and refers to some personal injury or damage, as it is evident that, fór a mere accident or sudden unexpected happening where no injury or dámage resulted, there would be no actionable right, and nothing to be lost by prescription or otherwise.

In connection with the foregoing, we will quote as appropriate thereto the following from the case of U. S. v. Katz, 271 U. S. 354, at page 357, 46 S. Ct. 513, 514, 70 L. Ed. 986:

“All laws are to be given a sensible construction; and a literal application of a statute which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose.”

We therefore hold, as we had occasion to do in the case of West v. Industrial Lumber Co., 14 La. App. 224, 128 So. 678, that under Act No. 85, 1926, prescription begins to run from the time the employee realizes or becomes aware of his injury which is governed by the same rule recognized in Guderian v. Sterling Sugar & R. Co., 151 La. 59, 91 So. 546.

The defendant company filed the plea of prescription in the lower court, herein-above discussed, which we find was properly overruled.

In this court defendant files the plea again alleging that according to the testimony of Dr. H. B. White, given at the trial, plaintiff had a serious and actionable cause of action for more than one year prior to the bringing of this suit.

The proof is that plaintiff went back into the service of defendant company about thirty days after the accident in 1921. He worked from that time to September, 1929, when he had his first stroke of epilepsy. In the intervening period between 1921 and September, 1929, he suffered occasionally with headaches and dizziness, and did not have the remotest idea, either springing from himself or from the advice of Dr. White or any other physician that he had a touch of epilepsy or should have any apprehension of such a trouble. It was only in September, 1929, that he was apprised by Dr. White of his affliction, and who sent him to the Hounsten Hospital, where other physicians told him he was suffering with that disease. It was certainly not before then that plaintiff awoke to the realization that he had “serious and actionable cause of action” for indemnification for the compensation he is now claiming. It was really later than September, 1929, that he became fully aware of his condition. It was somewhere about December, 1929, or perhaps a little later, that the diagnosis of Dr. White was confirmed by the other physicians at the hospital. He instituted his suit March 12, 1930, and well within one year from the time he became aware of his injury, and before the prescriptible period had accrued against his right of action. The plea of prescription filed here is also overruled.

MERITS

The district judge rendered the following opinion on the merits:

“While working for the defendant railroad company as a brakeman, in August, 1921, the plaintiff received a head injury. He was off duty about a month, and having apparentlj' fully recovered, he then went back to work, where he remained until January 12, 1930. He now has epilepsy. His first epileptic attack was had on September 21 or 25, 1929, and he has had several since that date. His disability is total and permanent. (Tr. 5, 6, P. 4.)
“The plaintiff claims that he has traumatic epilepsy, due to the head injury received in 1921, while the defendant urges that plaintiff’s epilepsy is idiopathic, that is, of unknown origin, or as Dr. Martin expressed it, ‘one’s own disease originating inside one’s self.’ (Tr. 30.)
“The defendant’s plea of prescription was overruled for written reasons filed in the record.
“Skull fractures often result in traumatic epilepsy, and the plaintiff contends that X-ray pictures taken of his skull since his epileptic attacks began show the fracture. This is the opinion of Dr. McKinney, an X-ray expert (Tr. 24-2) and of Dr. Tuten (Tr. 88). Defendant’s witnesses, Drs. Marquis and Henderson, X-ray experts (Tr. 80; Deposition of Dr. Marquis) and Dr. Morrison were of the opinion that the pictures showed no skull fracture. This was also the opinion of Dr. Martin, expert called by the plaintiff (Tr. 36). The weight of the evidence on this point is with the defendant.
“However, all the experts testifying on the point, both for the plaintiff and the defendant, were of the opinion that head injuries not resulting in skull fractures, could and do cause traumatic epilepsy. Dr. McKinney (Tr. 24-2), Dr. Martin (Tr. 31), Dr. Watkins (Tr. 38), Dr. Hebert (Tr. 45), Dr. Morrison (Tr. 61), Dr. Henderson (Tr. 86), and Dr. Anderson, who said that only about two per cent, of brain injuries producing traumatic epilepsy are not fractures (Tr. 79).
“The plaintiff was 37 years old when he developed epilepsy, and the experts were unanimous in the opinion that a large proportion of idiopathic epilepsy cases develop before the age of 20, and a very small proportion develop after the age of 37. Dr. Anderson (Tr. 70), Dr. Morrison (see deposition), Dr. Tuten (Tr. 92), Dr. Marquis (see deposition), Dr. Kushner (Tr. 49, 50), Dr. Martin (Tr. 33), and Dr. Bordelon (Tr. 55). Dr. Watkins was of the opinion that idiopathic epilepsy seldom appeared after the age of 25 (Tr. 39). This is also the opinion of recognized text book authorities.
“The record clearly shows that the family history of White, examinations and tests made in his case, negative any contention that might be made that the plaintiff has epilepsy of any known cause, other than traumatic.
“While traumatic epilepsy usually develops within six to eighteen months from the injury (Dr. Martin, Tr. 32), it does sometimes develop many years later. Dr. Martin had a case where it developed six or seven years after the trauma (Tr. 32), and Dr. White had a case where traumatic epilepsy was six years in manifesting itself (Tr. 103). Dieulafey, a recognized authority on the subject, in his work ‘A Text Book of Medicine,’ records a case where the period of development of traumatic epilepsy was ten years. (X-l). Dr. Tuten and Dr. Watkins testified that such cases develop as late as seven, eight or nine years (Tr. 47-92), and Dr. Watkins said there was no time limit in such cases (Tr. 39).
“Dr. Anderson, a very learned expert on mental diseases, and a witness for the defense, had never seen, known, or read of a case of traumatic epilepsy developing as late as eight years after the injury (Tr. 66, 67, 68), but his testimony on this point is outweighed by that of the doctors mentioned in the preceding paragraph— two of whom had personal knowledge of cases where the development was from six to seven years — and by the writers on the subject.
“Testifying for the plaintiff, the following experts were of the opinion that plaintiff’s epilepsy was caused by his head injury of 1921: Dr. McKinney (Tr. 25), Dr. Martin (Tr. 30), Dr. Watkins (Tr. 38), Dr. Hebert (Tr. 42), Dr. Kushner (Tr. 50, 51), Dr. Tuten (Tr. 89), Dr. White (Tr. 100), and Dr. Bordelon (Tr. 55).
“Dr. Morrison, a defense witness, was of the opinion that plaintiff’s epilepsy was of unknown origin (Tr. 62), his testimony on cross examination being as follows:
“ ‘Dr. Anderson says it (plaintiff’s epilepsy) could be part traumatic or idiopathic? A. Yes, I think it could be either.
“ ‘Q. The chances are about equal, would you say? A. Well, I don’t know about that.’ (Tr. 63.)
“Dr. Green, also for the defense, considering the long interval between the injury and the first epileptic attack, and saying that plaintiff’s history showed an absence of headaches or other cerebral disturbances, was of the opinion that these facts ‘make the case appear to me as a case of idiopathic epilepsy, rather than traumatic. However, the remote possibility of it being traumatic can not definitely be denied. (See his deposition.) In this connection it is important to note that between the date of injury and the development of the epilepsy, Dr. White, once or twice a year, was called to treat the plaintiff for headaches and dizzy spells. (Tr. 101, 102.) Later in his testimony this doctor, Green, said T consider it possible’ that the injury caused the epilepsy. (Tr. 71.) Dr. Anderson said that ‘most of the common and the remote causes of epilepsy’ were not found to exist in White’s case; that ‘a great 'many of the common causes of convulsions and all the uncommon ones’ were also found not to exist in this case, which was one of idiopathic or post traumatic epilepsy. (Tr. 73.) This witness hesitated to diagnose White’s case as traumatic epilepsy, because it developed later that such form usually develops; because White’s convulsions were general, while the general or universal rule in such cases is for the convulsions to he local; and because evidence of damage to the brain by scar, blood clot, etc. was wanting. Dr. Anderson said, however, that ten per cent, of the patients in traumatic cases show no such evidence. (Tr. 74, 75.) This doctor, who made a more detailed examination of the plaintiff than any other of the doctors, reported in writing as follows:
“ T see the case we are dealing with either a so called idiopathic epilepsy or a post traumatic epilepsy, and it departs radically from the rules for either. It is impossible for me to state the exact causative factor with certainty.’ (P-7.)
“Again, the doctor testified as follows:
“ ‘Q. If you really believed in this case this man had a serious brain injury in 1921, what would be your diagnosis of his present form of epilepsy? A. I do believe that he had.
“‘Q. You do believe it? A. Yes, sir.
“ ‘Q. Have you a fixed opinion as to what type of epilepsy this man has, and I is that opinion so strong that you would be willing for tbe court to act on it? A. Yes, sir.
“ ‘Q. Well, what type do you think he has? A. Traumatic. * * *
“ ‘Q. The sum and substance on that point is about this, is it not, you have not enough evidence at hand to diagnose this man’s case positively, or with reasonable certainty, but that the evidence preponderates in favor of traumatic epilepsy? Is that about what you want to say? A. Just about, except for the word preponderates. I would say favors, because it is a very, very slight margin.’ (Tr. 76, 77.)
“It will be noticed that eight experts testifying for the plaintiff, several of them being outstanding physicians and surgeons, were of the opinion that White has traumatic epilepsy. The opinion of these doctors was based on the facts that the plaintiff suffered a severe head injury in 1921; that such injury is a frequent cause of epilepsy; that idiopathic epilepsy rarely develops in a man as old as 37 years; and the fact that White’s family history, examinations of him, and tests, excluded all the causes responsible for other types of epilepsy.
“Of the three witnesses who testified for the defense, Dr. Morrison practically admitted that White’s epilepsy could be either traumatic or idiopathic, and this too was the testimony of Dr. Green. The third witness for the defense, Dr. Anderson, gave it as his ‘fixed opinion’ that White had traumatic epilepsy, and stated that his opinion was so strong that he was willing for the court to act upon it in this case. Moreover, this doctor admitted that he was absolutely unable to find any other cause for plaintiff’s epilepsy than the injury of 1921. (Tr. 74, 75.)
“It is clear from this statement of the evidence that the plaintiff has made out his case by a fair preponderance of the evidence.”

There is no error in that opinion.

Plaintiff proved his case with legal certainty, and is entitled to recover as was held below. The amount allowed was fixed in accordance with the compensation statute, and the increase demanded by plaintiff is denied.


author: STEPHENS, J.

text:
    No. 4193
    Second Circuit (Second Division)
    NOBLES ET AL. v. MEYER GREENWALD CONSTRUCTION CO. ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)

      E. S. Prudhomme, of Natchitoches, attorney for plaintiffs, appellees.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendants, appellants.
   STEPHENS, J.

The plaintiffs, Lillian Nobles and John Nobles, her husband, sue for compensation at the rate of $3 per week for 300 weeks for the accidental death of their minor son, and for $300 for doctors, hospitals and funeral bills alleged to have been incurred as an incident thereof.

The defendant filed an exception of no cause or right of action, and a plea of prescription of one and three years to plaintiffs’ suit. The district judge overruled the exception of no cause or right of action and the plea of prescription. After answer was filed by the defendant the case was tried on the merits, resulting in a judgment in favor of John Nobles for $3 per week for a period of 300 weeks, with interest from June 28, 1925, and rejecting the demands of Mrs. Lillian Nobles, and all claims for doctors’, hospitals’ and funeral bills. The defendant appealed. The plaintiffs have not appealed nor answered the appeal. Therefore, the judgment rejecting the demand of Mrs. Nobles for compensation and the claims on behalf of both plaintiffs for doctors’, hospitals’ and funeral bills is final and cannot be reviewed.

The facts which are pertinent to the sole question presented by the appeal, that is, the legality of the demand of plaintiff John Nobles for compensation, are undisputed, and are as follows:

A truck being driven by an employee of the defendant struck and injured the eight-year-old son of plaintiffs on June 28, 1925. The injury sustained resulted in death in a few days thereafter. The young man, at the time of the accident, was employed by the defendant and was being paid $3 per week for his services. The plaintiffs were actually dependent to some extent upon their son for support. The defendant paid by check to the plaintiff Mrs. Nobles, the sum of $3 per week for a period of 300 weeks. The plaintiffs were living together as man and wife, and had never obtained a judgment of separation of property.

The plaintiffs allege in their petition that their son was earning $3 per week at the time of the accident, but on the trial of the case an attempt was made to show that at said time he was actually earning $1 per day. The testimony tendered for the purpose was objected to by the defendant. The trial judge permitted the evidence to be adduced, but stated at the time that plaintiffs were bound by their pleadings. The ruling was correct, and the trial judge did not consider the evidence so admitted in rendering his judgment.

Section 8, subsection 2 of Act No. 216 of 1924, p. 400, provides:

“That for injury causing death within one year after the accident weekly compensation shall be paid under this Act, for a period of three hundred weeks to the following persons:
*******
“(g) If there be neither widow, widower nor child, then to the Father or Mother of the deceased employee, if actually dependent on the deceased employee to any extent for support at the time of the injury and death, thirty-two and one half per centum of wages; if in such event both Father and Mother of the deceased survive and are actually dependent on the deceased employee to any extent for support at the time of the injury and death, sixty-five per centum of wages for their joint benefit * * *”

Section 8, subsection 3, of the same act provides, in part:

“The maximum compensation to be paid under this Act shall be Twenty Dollars per week and the minimum compensation to be paid under this Act shall be Three Dollars per week; provided, that if at the time of the injury the employee was receiving wages at the rate Three Dollars or less per week, then the compensation shall be full wages.’’

Clearly, these provisions of the law, considered in connection with the facts in this case, show that the defendant has discharged its obligation. The plaintiff John Nobles contends that payment to his wife was not payment to him. This position, we think, , is untenable. The statute provides that the payments inure to the joint benefit of both husband and wife. That being true, the payments may be received by either husband or wife, while they are living together and are not separate in property, for their joint benefit, and when so received become community property. C. C. art. 24021 The husband alone has the power and authority to alienate community property, but either of the spouses may receive such property for the benefit of the community. No effort whatever was made to show that the payments made to the wife in this case did not inure to the joint benefit of both husband and wife. Even if it be conceded that the wife was legally incapable of receiving the money for the community, it is inconceivable that she did not receive it in this case with the full knowledge, acquiescence, and authority of her husband. The plaintiffs were living together as man and wife. They were in necessitous circumstances; and the payments were made bi-weekly during a period of more than five years. We are of the opinion that the payments, as made, discharged the defendant from further obligation to pay compensation.

But, if we are in error in so holding, the plea of prescription of one year, if considered, should be sustained. The death of the son occurred on June 28, 1925, and this suit was instituted on May 5, 1931, almost six years after the cause of action arose. Section 31 of Act No. 20 of 1914 reads as follows:

“That in case of personal injury (including death resulting therefrom) all claims for payments shall he forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made under this act, or unless within one year after the injury proceedings have been begun as provided in Sections 17 and 18 of this act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time making the last payment.”

The plaintiff John Nobles contends that as the last payment was made by the defendant within a year from the date of the institution of this suit, his claim, by the terms of the section quoted, was not prescribed. If payments to Mrs. Nobles did not serve to discharge the obligation of the defendant to her husband, certainly the payments to Mrs. Nobles could not serve the purpose of suspending the running of prescription against his claim.

However, we prefer to rest the decision of the case on the proposition that the defendant has fully discharged its obligation to pay compensation to both plaintiffs.

It is therefore ordered, adjudged, and decreed that that portion of the judgment in favor of the plaintiff John Nobles and against the defendant be annulled, avoided and reversed, and that there now be judgment in favor of the defendant rejecting the plaintiff John Nobles’ demand; and that the judgment as rendered be otherwise affirmed.


author: CULPEPPER, J.

text:
    No. 3948
    Second Circuit (Second Division)
    HEARNE v. MILLER
    (December 9, 1931. Opinion and Decree.)

      Herold, Cousin & Herold, of Shreveport, attorneys for plaintiff, appellee.
    Bryan E. Bush, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

This is a possessory action wherein plaintiff alleges he is now, and has been for more than ten years, in possession as owner of a tract of land in the SW1/^ of section 6, township 19, N. R. 16 west, Caddo parish, Louisiana, known as “Buzzard Island”; that said possession has been physical, corporeal, open, notorious, public, and unequivocal. It is alleged that the defendant has within the past six months disturbed petitioner in his alleged possession; that petitioner rented said property to defendant for the year 1928 and defendant went into possession as plaintiff’s tenant, paid plaintiff rent for that year, and that said alleged “lease was reconducted, both tacitly and expressly, for the year 1929”; that, although defendant was cultivating said land in 1929 as plaintiff’s tenant, he publicly announced during the summer of- that year his intention to hold the property for himself and discontinue his relations with plaintiff as tenant, and has since remained in possession, claiming it for himself and repudiating his obligations as tenant under plaintiff.

Defendant, answering, admits that plaintiff is owner and in possession of 5.71 acres in the extreme southwest corner of the section of land named, but denies that plaintiff has been in possession of any other portion of said property “as owner”; admits he rented -the 5.71 acres above mentioned for the year 1928, and avers that he sub-leased it to a negro and did not go upon it himself that year. General denial,was entered as to the other allegations of the petition. Defendant reconvened, alleging that he had been in the actual physical possession, as owner, for more than a year, of the property, except the said above mentioned 5.71 acres; that plaintiff has disturbed him in said possession by the filing of this suit. He prays to be quieted in his alleged possession.

There was judgment for plaintiff and defendant has appealed.

The evidence shows that for several years prior,to 1928 plaintiff had rented the property in question, known as the “Buzzard Island” place, to various parties. Wash Lee rented it from and paid rents to plaintiff in 1925, 1926 and 1927. Defendant leased it from plaintiff for 1928, and paid plaintiff a bale of lint cotton as rent. He did not move on it and work it himself, but subleased it to Wash Lee who worked it for defendant.

Defendant paid the rent for 1928 to plaintiff’s agent, Mr. Winston, during the latter part of December of that year. Plaintiff resided in New Mexico at the time, and he instructed his agent here, Winston, to lease the place to defendant for 1929.

It seems that at the time defendant paid the rent to plaintiff’s agent, nothing was said as to the leasing of the place for 1929. Defendant made Wash Lee move from the place about the first of January, 1929, and moved on it himself, so he testified, about the tenth of January. Some time along in early part of the spring Mr. Winston, plaintiff’s agent, met defendant and tried to get him to agree to lease the place for that year, but defendant refused, saying that he “had tried, or wanted to buy the place, but found out the title was not good and he didn’t believe he wanted to rent it.” Up to that time he had said nothing to Winston about not continuing the lease from the previous year. On January 11, 1929, plaintiff wrote from his home in New Mexico to defendant offering to lease defendant the place for that yeas at the same rental as for 1928. Defendant testified that he wrote plaintiff in reply and “made an offer on the land." Asked what kmd of an offer, he said:

“Well, I told him since I had examined the record on it I didn’t find that he owned but about five acres of land. I would give him two hundred and fifty for what he owned.”

Plaintiff again wrote defendant on March 7th, wanting to lease to defendant, referring to the property as “Buzzard Island.” Defendant filed both of these letters in evidence for .the purpose of showing he did not lease the property for 1929. Defendant testified that he answered plaintiff’s letter of January 11th about a month after he received it and did not answer the second letter.

Defendant, in his answer to plaintiff’s letter, did not claim that he, defendant, was the owner of the property. On the contrary, he made a proposition to purchase a portion of it from plaintiff. In his conversation with Mr. Winston, plaintiff’s agent, he did not assert ownership, but stated on that occasion that he wanted to buy it. He represented to no one that it belonged to him. Article 47 of the Code of Practice provides that those entitled to bring the possessory action are those who possess as owners.

Article 48 of the Code provides that those who possess in the name of another, such as tenants, are not entitled to the possessory action.

Under the plain .provisions of the Code, the defendant was not entitled to bring his action in reconvention for the reason that he did not possess as owner, but possessed the property by reconduction as tenant under plaintiff.

Defendant had possession during 1928 as tenant under plaintiff, through defendant’s sublessee, Wash Lee. Lee’s possession was that of defendant and defendant’s was that of plaintiff. Lee’s was as subtenant; defendant’s was as tenant, and plaintiff’s was as owner. When Lee moved off the first of 1929 and defendant moved upon the place, there was no change in the relationship between plaintiff and defendant. Defendant said nothing to plaintiff about not renting the place for 1929 until some time in February, more than a month after the first of January, when he wrote plaintiff he wanted to buy a portion of the place from plaintiff. He did not even say then that he would not rent the place from plaintiff. It was not until up in March that defendant told plaintiff’s agent he would not lease the place. This, we think, amounted to a reconduction of the lease by the conduct of the parties. Civ. Code, art. 2688. The fact that Wash Lee possessed it in 1928 and defendant did not move on the place until Lee vacated it does not, we think, change defendant’s character of possession in so far as plaintiff was concerned. Defendant held possession through Lee, and in 1929 defendant continued the possession by moving upon the place himself.

Defendant could not change the nature of his possession as tenant under plaintiff by his own acts, such as are shown in this case, so as to possess for himself, and thus form the basis of a possessory action against plaintiff. This is particularly true since he did not inform plaintiff of his intention not to lease the place until some time in February, which was more than one month after the first of January, and less than one year before this suit was filed.

In Davidson v. Fletcher, 130 La. 668, 58 So. 504, the court said:

“This doctrine is based on codal law that those who possess, not for themselves, but in the name of another cannot acquire the legal possession, although they should entertain the intention of no longer holding for another, but for themselves.” Citing Civil Code, arts. 3441, 3446.

Plaintiff’s allegation in his petition is that he held actual possession of the property as owner. The testimony shows that he had been renting it to various parties for many years. It was admitted by defendant that plaintiff had a deed to a portion of the property. Defendant dealt with plaintiff as owner of the whole of the property in the leasing of it from plaintiff. He examined the records, or had them examined, with the view of buying the whole of it from plaintiff— that is, the whole of what is Herein in contest.

From these facts and circumstances, we think it reasonable to conclude that plaintiff’s possession was as owner. Everyone is presumed to possess for himself as owner in the absence of evidence to the contrary. Succession of Zebriska, 119 La. 1077, 44 So. 893; Bently v. Cavallier, 121 La. 61, 46 So. 101.

Counsel for defendant argues that plaintiff’s possession, if at all, was merely civil or legal and not accompanied by any actual corporeal possession, and therefore, it was not such as to form the basis of a possessory action.

While we fully agree with the learned counsel as to the law, we cannot do so as to the facts. It is not shown that plaintiff ever moved upon or cultivated the land himself, but his tenants did, and it is a well settled principle of law that possession of the lessee is possession of the lessor. Campbell v. Hart, 118 La. 871, 43 So. 533.

Defendant testified that at some time up in the year 1929, Mr. Winston, plaintiff’s agent, saw him and asked about why he had not signed and sent Mr. Hearne the rent note which Hearne had asked him to sign, and that he then told Winston he was not working Hearne’s land. Notwithstanding defendant had possession of and was cultivating the same land Wash Lee had worked the year before, and living in the same house Lee lived in, which was what was known as Buzzard Island place, he declared same did not belong to plaintiff, and he continued to hold possession, preventing plaintiff from possessing it and exercising the right of possession previously held as owner. Such acts on the part of defendant constituted a disturbance of plaintiff’s possession. C. P., art. 51. It makes no difference whether defendant admitted that plaintiff owned a certain portion of the property, so long as the fact remains that defendant denied ownership in plaintiff of the remaining portion and disturbed plaintiff’s possession of that portion. We think, also, that the first act of disturbance took place at the time defendant made known to Winston his intention not to lease the property and his denial of plaintiff’s ownership. This was less than a year before the filing of the suit. Plaintiff, we think, has shown all of the requisites necessary to entitle him to bring a possessory action.

On March 21, 1930, the case was taken up for trial, testimony adduced, and case laid over for argument for June ltith following, and before any further action was taken, defendant filed over plaintiff’s objections, an exception qf no right or cause of action, based on the grounds that, “for the reason that plaintiff’s petition and evidence shows that the plaintiff has never had actual possession of the property and for the further reason that if plaintiff 'ever had any rights in and to said property, he has since filing the suit transferred same to Tensas Securities Co., Inc., as will be more fully shown by certified act of transfer attached hereto and made a part hereof.”

The attached transfer mentioned in the exceptions is a certified copy qf an authentic act of sale by plaintiff to the Tensas Securities Co., Inc., dated February 4, 1930, filed and recorded in conveyance records of Caddo parish, March 24, 1930, conveying by quit-claim title a tract of about 20 acres of land in section 6 and known as “Buzzard Island.” It is not recited what township and range, nor parish, the property is in.

The minutes do not show that the court passed upon the exception, but judgment was rendered July 12th in favor of plaintiff, which in effect overruled v,he exception.

Counsel for defendant in brief contends that, by reason of the transfer of the property, plaintiff has no interest in the case, and his demands should be rejected and there should now be. judgment in favor of I defendant upon his reconventional demand.

For the reasons already above stated, there is no merit in the exception to the want of actual possession in plaintiff, and same was properly overruled.

The exception to want of interest presents a more serious question. Plaintiff entered the objection that it came too late. Neither counsel have furnished the court with any authorities upon the question. To hold that plaintiff was without interest by reason of his assignment of the property, judgment could not be rendered for either party for the want of proper parties plaintiff, unless it could be construed that the judgment, in event it is favorable to plaintiff, would enure to the benefit of plaintiff’s assignee. The act of sale evidences no agreement had between the parties whereby plaintiff, the assignor in the act, would continue to prosecute the suit in his name for the benefit of his assignee. Had there been such an agreement, we would find no difficulty in overruling the exception. Towne v. Couch, 7 La. Ann. 93.

However, under the holding of the Supreme Court in Gurley v. City of New Orleans, 124 La. 390, 50 So. 411, 412, defendant has waived his plea of abatement, for lack of interest in plaintiff, by filing the exception of no cause of action. In the cited case the plaintiff died before defendant filed answer, and the latter contended that the suit was thereby abated. Defendant had, however, filed an exception of no cause of action. The court in passing upon the plea, said:

“An exception of no cause of action does not deny that there is a demand or suit in court which defendant is bound to answer. On the contrary, the defendant, by joining issue on the question of whether or not the petition shows a cause of action, in other words, by joining issue on the legal rights of the plaintiff as exhibited in the petition, practically admits that the suit is in court — that is to say, admits that the suit has not abated. Therefore the question of whether the suit has or not abated is one which is waived by the filing of an exception of no cause of action.”

The same reasoning, we think, would apply here. After defendant had become aware that plaintiff had conveyed the property, he voluntarily filed an exception of no cause of action, leveled against plaintiff’s petition, also against the evidence, contending that same did not allege or show that plaintiff ever had the actual possession of the property in dispute. The effect of the exception was to not deny that there was still an existing demand or suit before the court, but to admit that the issues involved were still before the court and had not abated. It is true that in the Gurley case, quoted from, the executor of the deceased plaintiff was made party to the suit, but the court’s overruling of the exception was apparently independent and apart from that fact, and was based solely on the ground that the exception amounted to a waiver of abatement of the suit.

This court has found for plaintiff up to this point. Defendant has had a full hearing upon the issues involved. • We can see nothing that can prejudice the defendant by an adjudication upon the case at this time; and, since our findings are for the plaintiff, they will not be prejudicial to his assignee but will enure to its benefit. The exception, therefore, to want of interest in plaintiff, will be overruled.

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


text:
    No. 3853
    Second Circuit (Second Division)
    WYCHE v. CHADICK
    (November 18, 1931. Opinion and Decree.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for plaintiff, appellant.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff sues to recover of defendant $1,000 which plaintiff put into the business of Chadick-Hayes Company, Inc., at the alleged request and solicitation of defendant and upon the full faith and credit of, and assurance by, defendant that defendant would be personally responsible for said money and would repay same to plaintiff at any time plaintiff demanded it of him. Subsequently the company failed, went into bankruptcy, and plaintiff, having thus lost his $1,000, demanded reimbursement from defendant. Defendant entered general denial of liability and specially denied having ever promised to pay plaintiff the money under any condition or circumstance. The case was tried, resulting in a judgment rejecting plaintiff’s demands, and he has appealed. '

The view taken of the case by the learned trial judge, as disclosed by his written opinion filed in the record, was that the case comes within the provisions of the Statute of Frauds; that if under the proof defendant is shown to have promised or agreed to pay plaintiff the sum of money sought to be recovered, it was nothing more than a verbal promise to pay the debt of a third person, for the recovery of which parol evidence cannot be received as proof.

According to our view of this case, it is not one coming under the provisions of the statute referred to. Prom the facts, and circumstances disclosed by the evidence, no debt was incurred by the Chadick-Hayes Company, Inc., when plaintiff joined it and put his $1,000 into it. It was not a loan or an advance made by plaintiff to the company. It was. a taking of stock in it. He was to draw down a dividend from the earnings of the company, and not interest upon the $1,000 he put in. He was not to be paid back the $1,000 after a period of time. This money bécame merged into and became a part of the capital stock of the company. If the company failed, plaintiff would also fail in the venture and lose the money invested.

Plaintiff in his petition alleges that defendant requested him to join said company and “make said deposit.” In another paragraph he recites, “That defendant on other occasions has obtained similar deposits and sold shares of stock of said company, on the strength of his personal financial rating and on his promises to be personally responsible for any loss on such deposits and shares of stock.” Notwithstanding plaintiff refers to the money he put into the company as a “deposit,” he nevertheless represents himself as joining the company and the money as going for shares of stock. Defendant in answer makes no defense that the case comes under the Statute of Frauds. While he does not state that the money put up by plaintiff went for stock in the company, his averments virtually amount to that. He recites that he “did inform said plaintiff that under the conduct of the said business he (plaintiff) must place One Thousand Dollars, with said company”; that such was the rule of the company, and that plaintiff was to be paid “one 10% dividend” as provided in the contract which plaintiff signed. ' He avers that the contract is attached to and made part of the answer, but we find it not attached to answer, nor do we find it anywhere in the record.

Upon the trial, defendant urged no objections to the testimony offered on the ground that it was an effort to prove a promise to pay the debt of a third party. Defendant’s contention, and he so testified, was that he made no such agreement or promise. The court in its written opinion did not pass on whether or not the testimony offered by plaintiff preponderated over that of defendant on this point, but decided the case from a different standpoint, as we have already stated.

Plaintiff testified that Chadick-Hayes Company, Inc., was. organizing a chain of Phoenix stores during the summer df 1927 and defendant wanted plaintiff “to go in on it.” Says he and G. A. Kelly, who was also interested in securing a similar position, called at defendant’s office on Sunday, August 7th, to discuss the matter. Mr. A. Kelly, father of G. A. Kelly, went along with them. Defendant, F. R. Chadick, and Mr. D. H. Hayes, were in the office at the time. F. R. Chadick was the president and manager of Chadick-Hayes Company, Inc., and D. H. Hayes, in his testimony, says his duties as an officer in the company were “to arrange with all of them (referring to such persons as plaintiff) to make the investment and take over the management of the various stores opened.”

Plaintiff testified that he had previously discussed the matter with Mr. Hayes and, in contemplation of accepting a position, he had spent one week at one of the stores in Plain Dealing; that upon his return Mr. Chadick called him over telephone on the morning of the 7th and asked him to come to the office; that it was in response to this call that he and the two Kellys called at defendant’s office that morning to discuss the matter; that Chadick and Hayes wanted him and Kelly to put up the $1,000 each and he and Kelly told them they were “a little scared” to put it up because they had looked up ChadickHayes Company, Inc., and found that the company “owed a lot of money.” On the following Wednesday plaintiff says he went to defendant’s office alone again and defendant was also alone in his office; that on that occasion defendant again wanted him to put up the money. “He told me •if I was scared of Chadick-Hayes Co., their rating, to look up him, P. R. Chadick, he would be personally responsible for that money.” Plaintiff says he told Mr. Chadick he and Kelly had looked up the company and had found the company “owed lots of money.” Says he then went back to Plain Dealing and got Mr. Doles, the banker there, to look up Chadick’s rating and found it to be good; that then on the following Sunday, August 15th, he and the two Kellys again called at Chadick’s office; that they told Mr. Chadick “that the stores was supposed to be broke” and Chadick replied: “Don’t you worry, I will be personally responsible for your money.” Asked on what representation did he make the deposit, the plaintiff replied:

“That any time that I made my demand for my money he would be personally responsible for it and give it to me.”

Asked:

“What prompted you to make this deposit with Chadick-Hayes Company, Incorporated, through Mr. Chadick?”

Plaintiff answered:

“Well after Mr. Chadick told me he was going to be personally responsible for it and after we looked him up, I felt like it was safe and I was going to work for him.”

Plaintiff at that time signed a contract and gave Mr. Chadick a check for $500 payable to Chadick-Hayes Company, Inc., and executed his note for $500 payable to the company. On cross-examination plaintiff said he had talked to Mr. Lassiter, also to Mr. Hayes, before he had to Mr. Chadick; that Lassiter had explained it to him a little; and that “in a general way” Mr. Hayes had shown him one of the contracts.

Mr. G. A. Kelly, one of plaintiff’s friends with him on August 7th at the conference, testified as to the conversation. He says that after the matter had been discussed his. father, Mr. A. Kelly, who was present, remarked to Mr. Chadick, “What if these stores go broke, what about the boys’ money?” And that Mr. Chadick told us “that he would be personally responsible and he would lose his last dollar before he would let us lose a dime.” This witness was also present at the conference on the following Sunday, August 15th. Asked what took place on that occasion, he said:

“We came down and went over the details of the stores again and asked him * * * I don’t remember if we asked him the question over again about in case the store went broke but he repeated it, that he would be personally responsible.
“Q. Responsible for what?
“A. For our money in case ChadickHayes Company went broke.”

This witness states that these company officials had been urging him and plaintiff on several occasions previously to put up this money. He signed up a contract and put up $1,000 the same time plaintiff did. He says he got his money back. He was prevented from explaining how he got it on account of objections from counsel for defendant. Mr. A. Kelly, father of G. A. Kelly, testified substantially the same as plaintiff and G. A. Kelly did. Asked what was said at the conversation on August 7th about contemplated deposit, Mr. Kelly said:

“Well they was figuring on getting the store. They would have to put up One Thousand Dollars before they could get in on that store.”

Then witness, says:

“And we talked a while about it and Mr. Chadick and Mr. Hayes laid out the plans and told about what they were going to do and I remarked, I says, ‘You fellows look like you need money,’ they says, ‘We do. There aint a concern hardly but what dont need money,’
“Q. Who said that?
“A. Mr. Chadick, and I asked him then, I says, ‘well now, Mr. Chadick, if these boys put up this money here and this thing goes busted.’ I says-, ‘What about their money? Where is it to come from?’ He says, ‘I will be personally responsible for it.’ ”

This witness in relating the conversation on the following Sunday, August 15th, says the question came up again, although he does not recall who brought it up, and that Mr. Chadick repeated the same thing. Asked just the exact words Mr. Chadick used, Kelly said:

“He says, ‘I will be personally responsible for it.’ ”

The defendant, on the stand, testified that Mr. Lassiter had brought plaintiff to see him two or three weeks before the occasion of the conversation on August 7th; that on that occasion plaintiff wanted to open up a store and he (Chadick) put him to work putting in other stores; that he (Chadick) explained to plaintiff that it would be necessary for himi to make a deposit of $1,000 in order to open a store, and that a contract would be issued for the $1,000; that on the occasion of the conversation on August 7th, “when they got through” discussing the matter, the question came up “in case the concern went broke where would they be as regards their deposit,” and he says:

“I explained to them that the present incorporators, principally Mr. Hayes, W. R. Chadick and myself, all our interest was in common stock, that I would lose, we would lose all of, our last dollar before they would lose anything.”

Asked if whether on that occasion he said he would be personally responsible, he replied, “I did not.” Says he never at any time made any such statement. Says, that if he made any statement on the 15th of August regarding the matter that he made the same statement then that H he had made on the 7th. Asked again H what he did state, he answered: B

“Made the statement not only to this gentleman, but every other one that came in and was solicited to come in to the Chadick-Hayes Company, that my holdings in the company was common stock and their deposit, or their stock being preferred stock was protected by my common stock and in case the concern should go broke, or get in financial difficulty I would lose my last dollar before they would lose anything, that statement was made over, and over, and over again.”

Defendant testified the common stock of the company amounted to about $65,000, of which he and his brother, W. R. Chadick, owned about $35,000, and that he individually owned a little over half of that. Admits he was the largest stockholder in the company and that he was its president, director, and managing officer. He states the $1,000 paid in by plaintiff went into the business of the corporation and was used in its regular course of business. On cross-examination defendant did not appear to remember much- about the- conversation, nor who was present, nor how many conversations he had with plaintiff. Asked if he had two,' he said he did not know; asked if he had' five, he said, “I may have had forty.” Asked if Mr. Kelly was present, he' did not know. About all he' did appear to be certain of was that he knew he did not tell plaintiff what plaintiff and the two Kellys testified he' told them.’ He does ' not recall phoning- plaintiff to come to his office; does not recall telling plaintiff it ■ would be necessary to put up the money. Asked -to state - just what he told plaintiff, he said: - -

“I told each and every one the -same thing I. told- Mr.. Wyche, which • he well, knows, that in case the company should go broke the business venture prove a failure that my interest was all in common stock and my common stock protected the depositors, also the preferred stock, that I would have to lose all I had in the business before they would lose a dollar.
”Q. Why did you tell everyone that?
“A. Simple reason I wanted them — my reason for remembering i-t so distinctly I have said it a thousand times.
■ “Q. You told them that without them asking?
“A. Yes sir, I would tell them even .if they didn’t ask.
“Q. You remember telling everyone that particular statement?
“A. Yes sir.”

H. P. Lassiter testified he was present for only a short while on August 7th and heard part of the conversation, although he did not engage in it. He says he did not hear the statements attributed to defendant by plaintiff’s witnesses; that he did not hear anything that sounded like it.-- Says he did- not hear them discussing about the preferred" stock. This, witness states that- such statements could have been made and he not heár it, as he came in while the conversation was on, stayed only a short time and left before it ended; and -was not listening in on • it during all the time he was present.

D. H. Hayes, testifying for defendant regarding the conversation had on August 7th in which he was present and took part, gave practically the same'version of it" that defendant gave. Asked on cross-examination if he was. present when the conversation was held on _ the following Sunday, August 15-th, this witness said h,e did not remember whether he was present or not.. Asked at how many conversations he was. present, he' said he did not know. Said he w.as present at several, did not knOjty. bow many; does not recall but the.on,e. on the 7th that the Kellys were present, , ..

Plaintiff testified- that no one was present when he had one of his conversations with defendant on Wednesday during the week between the 7th and the 15th, and that on the 15th the only persons in' the conversation were Mr. Chadick, the two Kellys, and himself.

G-. A. Kelly testified to the same thing. He says there might have been others in the building, but these four named were the only ones right in Mr. Chadick’s office where the conversation took place. Mr. A. Kelly also says he, plaintiff, G-. A. Kelly, and Mr. Chadick were the only ones present on the 15th.

Plaintiff and the two Kellys were all positive in their testimony as to the substance of these conversations. They quoted the statements attributed to Mr. Chadick. Mr. Chadick’s testimony is not so positive, except that he-says he knows he did not make the statements, and explains what he did state. The preponderance of the testimony shows that no one other than Chadick, Wyche, and the two Kellys were present at the conference on August 15th, also that no one else was present and heard the conversation between plaintiff and defendant on Wednesday of the week of the 7th to the 15th of August.

We think the preponderance of the testimony shows plaintiff’s version of these conversations to be correct.

Defendant is bound to have known, when he made these statements, that ChadickHayes Company, Inc., in the event of a failure, such as did happen to it, would be under no obligation to refund plaintiff’s money, therefore there would be no debt which the company could owe plaintiff. It is likewise true that the company owed plaintiff no obligation to pay him back the money even from the moment it was paid in, except possibly through a liquidation of its affairs. It resolves itself down to this, that defendant’s proposition to plaintiff was that if plaintiff would put his money into this business venture along with defendant, who already had a large sum of money tied up in it, and needed more, and the venture proved a failure, defendant would personally pay plaintiff $1,000 so as to save him from loss, which would virtually be buying back plaintiff’s stock.

Our view is- that this case is one of general indemnity, wherein defendant bound himself to indemnify plaintiff in the event of a loss of the $1,000 invested in the business of, the company. This money was not loaned by plaintiff to ChadickHayes Company, Inc., but it was an investment in the company whereby plaintiff became the owner of stock in it and entitled to a dividend from it. Plaintiff was not to be paid back the money, nor receive interest on it, as in case of; a loan. Investment in stock or the acquiring of an interest in a corporation, such as plaintiff invested and acquired in Chadick-Hayes Company, Inc., is not a loan to the corporation; nor was it the extension of credit to it in any manner whereby said corporation became indebted to plaintiff. The plain provision of article 2278 of the Civil Code is that parol evidence shall not be received “To prove any promise to pay the debt of a third person.” Since Chadick-Hayes Company, Inc., was not to become and did not become indebted to plaintiff in this transaction, this case does not fall within the provisions of the statute and is not governed by it.

The contract or agreement which defendant entered into with plaintiff was prior to, independent of, and formed no part of, the act of plaintiff in investing his $1,000 in Chadick-Hayes Company, Inc. It was an original prior agreement in which defendant obligated himself personally to indemnify plaintiff in event the investment by plaintiff of his money should prove a failure. Bain v. Arthur, 129 La. Ann. 143, 55 So. 743; Elliot on Contracts, 1913-1923, sec. 1229.

Plaintiff made the investment relying wholly upon defendant’s financial ability and contract of indemnity. The evidence is clear, we think, that defendant was anxious and eager to get plaintiff to put up the $1,000, more so apparently than to have plaintiff to work in a store. Plaintiff was sent to the Plain Dealing store where he worked for only a week when upon his return defendant called him up, had him come to his office, and was asked why he had not put up the money. When plaintiff paid in the money, defendant, instead of giving him the management of a store as he was supposed to do under the contract of employment, sent plaintiff out to drum up others- to join in -the business, and thereby secure other and additional like sums to go1 into the treasury of the corporation of which defendant was president, director, and general manager. While the evidence does not disclose the exact number of these stores that were organized, it strongly indicates that there were many of them. Defendant when asked about his statement to plaintiff, said he had made this same statement not only to plaintiff but to every other one who came in and was solicited to come in to Chadick-Hayes Company. In one place he says he made this statement “over and over, and over again.” In one place he says he had said it “a thousand times.” Defendant testifies that the principal work he put plaintiff to doing was “installing stores.” For every store installed there was to be a manager who had to pay into the hands of defendant ostensibly for the company the sum of a thousand dollars. This procedure was kept up right along after the company’s financial condition had become bad, of which fact defendant was undoubtedly aware. Notwithstanding the heavily involved condition of the company at the time plaintiff joined it, defendant continued to have new stores installed. This fact in itself indicates that defendant was endeavoring to stem the tide of the failing condition of his- company or to speculate on innocent people like plaintiff, or both. Knowing his own heavy investment in the company was in jeopardy, he was seeking additional funds to save loss to himself.

Under these circumstances we -think defendant had a direct pecuniary interest to conserve in ' entering into this contract with plaintiff, such as to amount to a valid and sufficient consideration. Hoggatt v. Thomas, 35 La. Ann. 298; Wahl v. Cunningham, 320 Mo. 57, 6 S. W. (2d) 576, 67 A. L. R. 489; 25 R. C. L. 524, par. 109; Davis v. Patrick, 141 U. S. 479, 12 S. Ct. 58, 35 L. Ed. 826.

It is from the surrounding circumstances in such cases as this, and the relations of the parties concerned, that the courts are governed largely. Elliott on Contracts, secs. 124, 1241, Supplement of 1914-1923.

There is no proof that plaintiff paid but $432 on the $500 note he executed, therefore he would only be entitled to recover this amount plus the $500 paid cash at time of the purchase of the stock.

Since the filing of this appeal the defendant has died and, by motion in this court, W. R. Chadick, the administrator of the estate of the decedent, has been substituted as defendant herein.

Therefore, for the reasons assigned, the judgment appealed from is- reversed, and there is now judgment in favor of plaintiff, T. L. Wyche, and against W. R. Chadick, administrator of the succession of P. L. Chadick, deceased, in the sum of $932, together with legal interest from judicial demand until paid and all costs.