text:
    No. 3580
    Second Circuit
    HUNTER ET AL. v. RAYVILLE STATE BANK ET AL.
    (December 31, 1929. Opinion and Decree.)
    Smith & McGregor, of Rayville, attorneys for plaintiffs, appellees.
    Hodge & Barnett, of Rayville, attorneys for defendants, appellants.
   REYNOLDS, J.

Raleigh A. Hunter and Mrs. Annie Hunter Medlin, wife of Arthur Medlin, sued W. N. Traylor and Tobin R. Hodge and Rayville State, Bank, seeking judgment against them in solido for $210.08, with legal interest thereon from December 15, J.911, alleging that on that date, W. N. Traylor, as sheriff of the parish of Richland, deposited $420.16 in the Rayville Sta,te Bank to his own credit as such sheriff for account of the suit of T. F. Spruell vs. The Heirs of Raleigh and Janie Hunter, No. 3716, being the proceeds of the sale of certain lands made under a judgment of the district court of Rich-land parish; that one-half of the amount so deposited belonged to Edward Hunter, and had since been paid to him, and that the remaining $210.08 was the property of plaintiffs and their sister, Florence Hunter, since deceased; that Florence Hunter had died unmarried, intestate, leaving neither father nor mother, and that they were her only brother and sister and her sole heirs; that at the time of the suit they were minors and represented therein by Tobin R. Hodge as curator ad hoc.

Each of the defendants filed an exception of no cause of action. The exceptions filed by Traylor and Hodge were sustained. That filed by the Rayville State Bank was overruled, and thereupon the bank answered, denying knowledge of the alleged, deposit, and denying liability. On the issue joined between plaintiffs and the bank, judgment was rendered in favor of the plaintiffs for $173.06, with legal interest thereon from December 15, 1911, and the bank appealed.

OPINION

EXCEPTION OF NO CAUSE OF ACTION

The exception was founded upon the theory that there was no privity of contract between plaintiffs and the bank, and that, if the bank was liable to any one, i,t was to Traylor. It is not disputed that the fund was the property of plaintiffs, and, Traylor being a party defendant to the suit, and not asserting any claim to the fund on his own account or denying the plaintiffs’ right thereto, we think the exception was properly overruled.

ON THE MERITS

Traylor testified that, as sheriff of the parish of Richland, he deposited $420.16 in the Rayville State Bank on December 15, 1911, to his own credit as such sheriff for account of the suit of T. F. Spruell vs. Heirs of Raleigh and - Janie Hunter, No. 3716 on the docket of the district court of Richland parish; that out of the amount he had paid the costs of the suit, amounting to $74.04, and had paid to Edward Hunter, one of the beneficiaries of the fund, his share of $173.06, and that he had never withdrawn the remaining $173.06. In corroboration of his testimony he filed in evidence a bank book or book of deposits issued to him by the bank and showing that $420.16 was deposited in the bank by him on the date named. No evidence was offered tending to show that the $173.06 was ever withdrawn from the bank by any one. The only testimony offered on the point on behalf of the bank was that the books of the bank did not show any such deposit. The evidence shows that Florence Hunter had died before the institution of the suit; that she had never been married; that she left no will; that her father and mother died before her; and that her only heirs were the plaintiffs, her brother and sister.

There was no error in the awarding plaintiffs judgment for $173.06, but there was error in awarding them judgment for 5 per cent interest thereon from December 15, 1911; they were only entitled to legal interest on the amount of the principal sum demanded from the date of judicial demand. Plaintiffs have not cited us to any law showing them entitled to interest from a date anterior to judicial demand; and we know of none.

It was said in Crossley vs. Commissioners of Louisiana Saving Bank & Safe Deposit Co., 38 La. Ann. 85, that:

“In the absence of any written evidence, showing an agreement to pay conventional interest, the plaintiffs can recover legal interest only * * * and this from, judicial demand.” (Italics ours.)

In so far as the judgment appealed from awards plaintiffs $173.06, it is affirmed, but in so far as it awards them interest thereon from December 15, 1911, until paid, it is annulled, and it is now ordered that they have interest on the principal sum of $173.06 from judicial demand. Plaintiffs to pay the cost of this appeal. All other costs to be borne .by the Rayville State Bank.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3638
    Second Circuit
    THE AETNA CASUALTY & SURETY CO. v. BOMER HARDWOOD CO., ET AL.
    (December 31, 1929. Opinion and Decree.)
    A. J. Wyly, of Lake Providence, attorney for plaintiff, appellant.
    C. S. Wyly, of Lake Providence, attorney for defendants, appellees.
   REYNOLDS, J.

By act dated October 2, 1923, the Missouri Pacific Railroad Company leased certain movable property to defendants on certain terms and conditions therein named for the period beginning January 1, 1923, and ending April 10, 1925, and by act dated January 3, 1924, plaintiff, at the request of defendants, became surety for the faithful performance by them of their contract.

Defendants made and signed a written application for the bond and the application contains, among other things, the following stipulation;

“That the indemnitors will immediately pay the surety at its home office, Har+f >rd, Conn., $148.00, and $148.00 on the 2nd day of October, 1923, in each year thereafter, and until the indemnitors shall serve upon the surety, at' its said office, competent written legal evidence, satisfactory to the surety, of its discharge from such bond and all liability thereunder.”

And plaintiff seeks by this action to obtain judgment against defendants for $296, with legal interest on a moiety thereof from January 3, 1926, and like interest on the other moiety thereof from January 3, 1927, as and for the premium owing on the bond for the years 1926 and 1927, alleging that:

“Defendants have failed and neglected to give the plaintiff at its home office In Hartford, Conn., competent written legal evidence, satisfactory to the surety, of the surety’s discharge from the bond and all liability thereunder, as the defendants bound themselves to do, in' their written agreement and application, and that this bond has continued i,n full force and effect and is now in full force and effect and will continue in full force and effect under said written agreement of defendants with plaintiff until plaintiff’s discharge in accordance with the provisions of this said written agreement and application.”

The defense is that the contract between defendants and the Missouri Pacific Railroad Company was terminated prior to January 1, 1926, duly performed by defendants, and plaintiff duly notified of the fact, and that the promise sued on was without consideration and void.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing its suit, and it appealed.

OPINION

Plaintiff made no appearance in this court and has not favored us with a brief.

There was no consideration fox the promise sought to be enforced. No benefit was conferred on the promisor, nor detriment suffered by the promisee, at the time it was made, and in the absence of one or the other the promise was invalid. Cyc. vol. 9, p. 316.

The obligation imposed on defendants by the promise, to furnish the plaintiff competent legal evidence, satisfactory to it, of its discharge from liability under the bond, cannot be said to have been a benefit to defendants and therefore a sufficient consideration for their promise to pay the premiums sued for.

Aside from this, however, it appears from the uncontradicted testimony of 0. G. Bomer, one of the defendants, that in July, 1925, he notified plaintiffs defendants had performed their contract with the Missouri Pacific Railroad Company.

He was asked:

“What notification, if any, did you ever give to the Aetna Casualty & Surety Company relative to your settlement with the Missouri Pacific Railroad Company on this contract, the lease of track materials, which is already offered in evidence in this suit?”

And he answered:

“About the time of delivery of that, a few days after, as soon as we could get a check, we advised the Casualty Company that we had returned this steel covered by their bond with the Missouri Pacific Railroad Company.”

Elsewhere he stated that this notification was given in the month of July, 1925.

If this was not competent written legal evidence of plaintiff’s discharge from its liability under the bond and as such satisfactory to plaintiff, it does not appear that plaintiff objected, to its sufficiency, and, in the absence of any objection on that score, defendants well might assume that it received plaintiff’s approval.

The judgment appealed from is correct, and accordingly it is affirmed.


author: WEBB, J.

text:
    No. 3711
    Second Circuit
    McLEMORE v. ABELL, SHERIFF, ET AL.
    (December 31, 1929. Opinion and Decree.)
    Smith & McGregor,' of Rayville, attorneys for plaintiff, appellee.
    Warren Hunt, of Rayville, attorney for defendants, appellants.
   WEBB, J.

Defendants, Monroe Grocery Company, Limited, and A. A. Abell, Sheriff, appeal from a judgment restraining them from selling a lease contract between plaintiff, J. W. McLemore, and W. J. Baker, a judgment debtor of Monroe Grocery Company, Limited, and awarding plaintiff damages, attorney’s fees incurred by him in obtaining and having the restraining order perpetuated.

The lease contract was evidenced by an authentic act which had been filed and recorded 3,n the parish in which the leased premises, urban property, was located, and it contained a stipulation that the lease was personal to the lessee, and that he could not assign the lease or sublet the premises without first obtaining the consent of the lessor, and in the application for the restraining order it was alleged that the lease was not subject to seizure by the creditors of the lessee, and, further, that the lease had not been legally seized, and that the contract had been canceled under an agreement between the plaintiff, J. W. McLemore, lessor, and W. J. Baker, lessee.

In support of the position that the lease was not subject to seizure by the judgment creditors of the lessee, it is urged that the stipulation restricting the right of the lessee to assign the lease is authorized under the provisions of article 2725 of the Civil Code, which provides that:

“The lessee has the right to underlease, or even to cede his lease to another person, unless this power has been expressly interdicted.

“The interdiction may be for the whole, or for a part; and this clause is always construed strictly,”

—and that, the stipulation being effective as to the lessee, it should be effective against all persons asserting rights through him, but there is not any authority cited in support of the contention.

There are several decisions in which it has been held that the restriction should be construed strictly against the lessee, but we have not been able to find any decision in which the effect of the restriction was considered as between the creditors of the lessee and the lessor. However, in Barron vs. Duncan, 6 La. 100, it-was held that the restriction would not prevent the executor of the lessee from assigning the lease, and in that cause the organ of the court was of the opinion that such a restriction was applicable only to the voluntary or conventional assignments of the lessee, which appears to be the construction placed on such restrictions under the common law (R. C. L. Landlord and Tenant, vol. 10, p. 834, sec. 333; Gazlay vs. Williams, 210 U. S. 41, 28 S. Ct. 687, 52 L. Ed. 950, 14 L. R. A. (N. S.) 1199; Farnum vs. Hefner, 79 Cal. 575, 21 P. 955, 12 Am. St. Rep. 174; Remington, Bankruptcy, vol. 3, sec. 1220, et seq.), and in view of the decision in Barron vs. Duncan, supra, we are of the opinion 'that the restriction of the right of the lessee to assign the lease should be construed as applicable only to conventional or voluntary assignments of the lessee, and therefore the lease was subject to seizure and sale by the judgment creditors of the lessee (articles 3182, 3183 C. C.; Hanna vs. Bry, 5 La. Ann. 651, 52 Am. Dec. 606).

Relative to whether or not the lease was seized, and, if not, as to the right of plaintiff to enjoin the sale, it is suggested by plaintiff that the sheriff was without authority to take possession of the instrument evidencing the lease, which he found among the archives of the recorder’s office, and that his possession of the lease was without any effect whatsoever, and that the notice given the lessor of the seizure of the instrument was also without effect, while defendants suggest that even though the lease was not seized, plaintiff could not enjoin the sale on such grounds, as the sale of the lease would only give the purchaser the right to take possession of the leased premises, and that plaintiff was without right to question the validity of the seizure or sale until the purchaser of the lease had taken or demanded possession of the premises.

We have not been able to find any decision in which the method of seizing a lease is stated, and, while it is contended that the seizure was not effected by the officer taking possession of the. instrument evidencing the lease, it is not suggested that it was necessary for the officer to have taken possession of the leased premises, and, conceding for the present that any notice given to the lessor would be sufficient to prevent him from agreeing with the lessee to cancel the lease, notice to the lessor would not prevent the lessee, where he had the right, from assigning the lease to a third person, and we do not think that, considering the thing seized as merely an incorporeal right, notice to the lessor divested the lessee of his rights under the lease.

It is, we assume, conceded that the seizure of the rights of the lessee under the lease could not prejudice the rights of the lessor as against the lessee, and, the evidence showing. that the rent for the full term of the lease was due and unpaid at the time of the purported seizure, we think that, in order for the seizure to havé been effective, it was essential that the seizing creditor should by virtue of the seizure he placed in a situation where the lessor could demand of it the payment of the rent or cancellation of the lease, which could be effectively accomplished only by a valid seizure of the lease, and until such seizure was made it was without effect.

There are a number of decisions in which it has been held that a judgment debtor could not enjoin the sale of his property on the ground that the property had not been validly seized, where his possession was not disturbed, as if there was not a valid seizure the sale would be without effect (Richardson vs. Cramer, 28 La. Ann. 357; Gusman vs. DePoret, 33 La. Ann. 333; Lambeth vs. Sentell, 38 La. Ann. 691), and, while we are of the opinion the plaintiff could have waited until after the sale before questioning the validity of the seizure, yet, as the evidence shows that the seizure was invalid and without effect, we do not think there is any reason why the validity of the seizure should not be decided at this time.

However, we do not think that plaintiff should be awarded damages, attorney’s fees, for prosecuting the suit, as the property seized was not exempt from seizure,, and the injunction being maintained on the ground that the seizure was invalid does not present a case in which attorney’s fees for prosecuting the suit should be allowed. Oxford vs. Colvin, 134 La. 1094, 64 So. 919.

It is therefore ordered that the judgment be- amended, and that plaintiff’s demand for damages, attorney’s fees; be rejected; and, as thus amended, the judgment is affirmed. Plaintiff to pay cost of appeal.

ODOM, J., concurs in the decree.


text:
    No. 3597
    Second Circuit
    SALLEY v. JONES MOTOR CO., INC.
    (December 31, 1929. Opinion and Decree.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

Defendant is a dealer in motor trucks, its place of business being located in the city of Monroe, and one of its salesmen or solicitors entered into a contract with plaintiff to sell him a new truck of the make handled by defendant, and to accept a used truck and trailer at a valuation of $300 as a credit on the price of the new truck.

The agreement was verbal, and the record does not show when the new truck was to be delivered, it appears, however, that the agreement was not made at defendant’s place of business, and that the new truck was to be delivered at a future date, but the used truck and trailer were to be delivered immediately, as the record shows that the used truck and trailer were delivered to the salesman at defendants’ place of business several weeks prior to the time plaintiff called for the new truck, and that the used truck and trailer had in the meantime been disposed of by the salesman, who did not advise defendant of any of the transactions.

When plaintiff called for the new truck on which he was to pay the difference between the price agreed upon and the valuation placed on the used truck and trailer, he was advised that defendant did not know anything of the transaction he had with its salesman, and that the salesman did not have authority to make the contract, and defendant refused to recognize the contract or account for the used truck and trailer.

Plaintiff then instituted the present action, in which he obtained judgment against defendant in the sum of $300, with legal interest from judicial demand, from which defendant appeals.

The basis of plaintiff’s action appears to be that in the motor truck-business it is usual and customary to accept in part payment of the price of motortrucks sold, other motor trucks at an agreed valuation; and that he had dealt with the salesman in the usual course of the business, and had delivered the used truck and trailer to the salesman, and that defendant is liable either in damages for the breach of the contract or the value of the used truck and trailer which were delivered to the salesman and disposed of by him.

It is conceded that as a general rule the principal is not bound by the acts of the agent further than the principal has authorized the agent to bind him (articles 3010, 3021, Civ. Code), and it must also be conceded that authorization to sell property does not include authorization to give it in exchange (Troplong, Mandate, No. 265; R. C. L., Principal and Agent, vol. 21, p. 867; Eaton vs. Hattiesburg Auto Sales Co., 151 Miss. 211, 117 So. 534; Benjamin, Sales, p. 728), and appellant urges that the evidence establishing that the salesman with whom plaintiff dealt was without authority to contract, as he did, with plaintiff, defendant cannot be held liable; or, in other words, that the evidence shows that the person with whom plaintiff contracted was a mere salesman or one having authority only to sell, he was not authorized to contract to give the principal’s property in exchange, and that the contract was not enforceable.

We are of the opinion that, if the question related solely to the validity or binding effect of the contract, and the action was to enforce specific performance, the fact that the agent was without authority to enter into the contract would be controlling, or, in other words, if plaintiff, acting under the contract, was tendering or offering to deliver possession of the used truck and trailer, at the valuation agreed upon at the time of the contract, and the balance of the price of the new truck, and demanding that defendant deliver to him the new truck, defendant could not be forced to comply, nor could plaintiff claim damages should defendant refuse.

However, where the consideration of the contract has passed into the possession of the agent, who has. appropriated it to his own use, and the person dealing with the agent was in good faith, and without knowledge of the lack of authority of the agent to contract, and will sustain a loss unless the principal is held bound under the contract or for the action of the agent, it may be that the innocent person dealing with the agent should be protected, which is, as we understand, the position of the appellee, or that the exception to the general rule, that the principal is bound by the acts of his agent, although the agent exceeded his actual authority, where it appears that the act of the agent was within the scope of his implied or apparent authority, should be applied.

As we understand, the question of whether or not an agent has implied or apparent authority is one of fact, and the right of one, who has dealt with an agent, to urge tint the agent was acting within the scope of his apparent authority, is dependent upon whether or not he had previously dealt with the agent, or that the agent had previously dealt with other persons, in such manner that he was warranted in assuming that the agent had authority. The evidence does not show that plaintiff had had any previous transactions with the salesman, or that the salesman had previously dealt with other persons, and we do not think plaintiff was warranted in assuming that the salesman had the authority to contract with him, and we do not think that the question of whether or not it was the custom or usage in the motortruck business to accept other trucks at an agreed valuation in part payment of the price of trucks sold would affect the question, and if plaintiff can recover it must be on the ground that the agent had implied authority.

“Implied authority” is that which flows from the fact that one has been charged with the management of some particular business or property in which, considering the nature of the duty with which the agent is charged, the agent has implied authority to bind his principal with relation to matters necessary to effect the purposes of his agency; but conceding that the evidence established that in the motor-truck business it is usual and customary to accept other motortrucks at an agreed valuation in part payment of the price of motortrucks sold, it is not suggested, and there is not any evidence indicating, that the salesman with whom plaintiff dealt was in charge of defendant’s business, and. the evidence establishing that it is not the custom or usage in the motortruck business for the dealers to permit their salesmen to accept other motortrucks at an agreed valuation in part payment of the price of motortrucks sold by them, we are of the opinion, even conceding that the evidence established the custom or usage, that plaintiff failed to establish that the salesman with whom he dealt had implied authority to contract as he did with plaintiff.

Aside fi-om the failure of plaintiff to show that the salesman with whom he dealt had either apparent or implied authority to contract with him, it appears that the sale was executory, and a custom or usage of the dealers in motortrucks to accept other motortrucks at an agreed valuation ■ in part payment of the price of motortrucks sold (which was the most the evidence established) does not show that it was the custom, even with the dealers, who have "the right to dispose of their property as they please, to accept other motortrucks at an agreed valuation to be applied on the price of motortrucks contracted to be sold by them, and we are of the opinion the transaction had by plaintiff with the salesman appears to have been rather unusual, even though it be granted that, in the motortruck business, it is the custom and usage to accept other motor-trucks at an agreed valuation in part payment of motortrucks sold.

We are therefore of the opinion that the evidence does not establish that plaintiff had any right to claim damages for a breach of the contract, and although the evidence showing that the salesman was not authorized to contract with plaintiff may be said to tend to show that the salesman was authorized to take possession of the used truck and trailer, and one decision is cited from another jurisdiction in which it appears to have been held that the principal was liable for the value of property thus taken and disposed of by the salesman (De Long vs. Northwest Motor Co., 116 Wash. 220, 199 P. 233), we do not think that the evidence established that the salesman was authorized to take possession of the used truck and trailer belonging to plaintiff, or the value of such property, and plaintiff cannot recover as against the defendant on that theory.

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


author: ODOM, J.

text:
    No. 3691
    Second Circuit
    EDWARDS ET AL. v. STANDARD GIN & MFG. CO.
    (December 31, 1929. Opinion and Decree.)
    Munholland & Munholland, of Monroe, attorneys for plaintiffs, appellants.
    Theus, Grisham & Davis, of Monroe, and Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Sullivan Edwards, a carpenter by trade, was employed by the Standard Gin & Manufacturing Company to construct a small frame building, and while at work in the course of his employment was killed by an explosion on October 5, 1927. He had never been married and left at his death a father, a mother and two sisters. The father and the mother bring this suit for compensation under the Workmen’s Compensation laws of the State, as amended by Act 85 of 1926, alleging dependency.

The defense is that the parents were not actually dependent for support in part or in whole upon their deceased son at the time of his injury and death and that he did not in fact contribute to their support. Their demands were rejected by the lower court and they have appealed.

OPINION

Under Section 8, Act 85 of 1926, which is applicable to this case, certain ipersons named therein are entitled to compensation in case of the death of an employee if such persons were actually dependent either in whole or in part upon his earnings for support at the time of his death. Plaintiffs alleged that they were wholly dependent upon their son for maintenance and support, and the burden was upon them to make good that allegation. The act provides that certain persons named are conclusively presumed to be wholly and actually dependent upon the deceased employee, but there is no such’ presumption in favor of surviving parents and the act provides that in all cases where there is no presumption of dependency “the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death.” Section 8, subd. 2(D).

The plaintiffs failed to discharge the burden laid upon them under the law of proving dependency. The testimony on this point shows that the parents at the time of the son’s death were each about 72 years of age, and were not able to work as they once could; but neither was shown to be disabled. The mother was still doing her housework, and the father did odd jobs as carpenter, from which he earned something, but the amount was not stated. They are not in debt, own thirty-one ■ acres of land in a rural section, with a residence upon it in which they live, a (portion of it being occupied by a daughter and a son-in-law who pay rent at $5 per month. The father testified that he received $375 from the sale of land in 1926, and a statement filed in evidence, which he ■ said was correct, shows that he received $317 from the sale of land in 1927. However, it may be that he was mistaken when he said he received $375 in 1926, and that this amount was received in 1927, for the same statement shows receipt of $200 from the sale of land in 1926. He testified that he received $375 from the land in 1927, but did not state on what date it was received. But, assuming that he received it at the beginning of the year, he had from that source for that year, up to the date of the son’s death, about $42 per month. If he received the $375 later in the year, he must have had some money on hand at the time of his son’s death, unless it be that he spent more money than would seem to be necessary to maintain himself and his wife. Adding to the amount which he received for the land the $5 per month which he received from his son-in-law for house rent, and adding the amounts which he earned from his own labor, and considering the fact that the couple lived in their own house in a rural section, with no outside expenses such as doctor’s and medical bills, and no one dependent upon them for support, it seems that the revenues which they admittedly received are sufficient to maintain them.

The statement filed by* the father shows that he had been regularly receiving an income from the sale of timber and mineral leases for quite a number of years. There is no evidence to show just what amount was necessary to sustain this couple, nor is there any evidence to show that they could not live comfortably on the revenues which they received. But, considering all the testimony and taking into consideration all the circumstances, we are satisfied that they could easily maintain themselves without the assistance of the son. From the evidence, it is perfectly clear that, as a matter of fact, they had lived for a period of at least two years without his assistance. In reaching this conclusion, we have not overlooked the testimony of the mother that her son had given her provisions in 1927 valued at $35, and provisions in 1926, amounting to $52.00. Our conclusion is that she was mistaken in this and we base our conclusion upon her own testimony hereafter quoted.

She testified that over a period of 10 years preceding her son’s death he had contributed to her a total sum of $1,183, and she attaches an itemized statement showing the amount received each year. But she states that this statement is made up from memory. She further stated that during all those years she kept a little book in which she set down each year the amount received and the date on which it was received, but that very recently she had lost or destroyed the book and was, therefore, unable to produce it at the trial. In reaching the conclusion that the son did not in fact contribute anything to his parents during the two years preceding his death, we do not attribute to Mrs. Edwards any desire or intent to impose upon the court, but rather to a faulty memory. The son had unquestionably contributed something to the support of his parents in former years. He at one time lived with them, but at the time of his death, and for more than two years prior thereto, he had lived in Monroe and was not a member of their family. His health had failed and he could do but little work, and not only that, he had considerable outside expense in the way of medical bills.

Mr. Austin, for whom he was working and who operated a gin and plantations t testified that for quite a period of time prior to his death Edwards did but little work and none, so far as he knew, except for him, and no one else knew of any work Edwards had done, except for Austin. Mr. Anding, his brother-in-law, said Edwards had done work for others, but when cross-examined, admitted that he recalled none during the past two or three years. Mr. Austin testified that he advanced Edwards money from time to time to pay his board and doctor’s bills with the understanding always that when he (Austin) had work to do. Edwards would do it and get credit for his wages on the sums advanced.. The record leaves the decided impression that for two or three years prior to his' death, Edwards was barely able to maintain himself. Aside from this, it was conclusively proved that the father and the mother each stated after their son’s death that his health had failed and that he had made no contributions to them within the past two years.

On October 11th, four days after the son’s death, Mr. Villiva and Mr. Clark, claim adjusters for the insurer of defendant, visited the father and mother at their home near Swartz where they interviewed them on the particular point whether their son had been contributing to their support. Villiva and Clark both state that they were told by the parents that the son had made no contributions within the two years immediately preceding his death. They prepared a written statement, which was signed by the father, from which statement we quote the following:

“He did not live with me except an occasional visit after he returned from the War. He always gave me some money to help out before that time but during the two years just past he did not contribute any to my support or my wife as he was sick most of the time and did not make much. He did not come home very often but my wife and I would see him in Monroe about once a week.”

(signed) T. E. Edwards.”

Then follows this sentence:

“The above statement is correct.

(signed) Mrs. M. M. Edwards.”

The testimony shows that both Mr. and Mrs. Edwards are partially deaf and they say they have no recollection that the statement which they admit having signed was read over to them, and further, that if it was read to them, they did not hear and understand it. It is now contended that Villiva and Clark took advantage of these aged people and procured their signatures to an instrument which does not set forth the facts, although both Villiva and Clark testified that the statement sets forth what was told them by Mr. and Mrs. Edwards.

Even if it be conceded, as it is now argued, that these representatives of the insurance company were disposed to take advantage of Mr. and Mrs. Edwards, the fact remains that they did say what the statement shows they said. Our conclusion does not rest alone upon the testimony of Villiva and Clark. Indeed, if their testimony be eliminated entirely, there is ample proof that they did make the statement. We quote the following from Mrs. Edwards’ testimony found on page 13:

“Q. I want to ask you that if on the 11th day of October, 1927, about six days after your son died, if you didn’t state to Mr. Villiva, this gentleman right here, and Mr. Clark, that Sullivan S. Edwards had been sick a great deal after he came out of the war and that he did not contribute anything to your support or to your husband’s support during the last two years of his life?

“A. Yes, we did state that, but we had forgotten that he had given us some land in the last two years, and we sold that land and got cash for it. During the last two years of his life, we sold land and got the cash for it.”

We quote also the following from Mr. Edwards’ testimony found on pages 26 and 27 of the evidence in the record:

“Q. Did you not tell Mr. Villiva and Mr. Clark that your son had not contributed anything to your and your wife’s support for about two years before his death?

“A. If I told them that I was just mistaken for the simple reason that I looked into my records and found afterwards that I received money from land sold of his in 1926 and 1927, yes, sir.

“Q. Did you tell them that?

“A. What?

“Q. That your son had not contributed anything to your support and that of your wife for about two years before his death.

“A. It was an oversight of mine if I told them that.

“Q. Did you tell them that?

“A. I don’t remember whether I did or not. I was bothered at the time. I don’t actually remember today whether I told them that or not, but if I did I was mistaken. I remember signing the paper all right, but I never knew what was in it.”

We quote further the testimony of Mr. Edwards found on page 33:

“Q. Was that money that you got from the sale of land all that your son contributed to you during the last two years of his life?

“A. Prom the sale of land all I received was in money.

“Q. Yes, but was that all you got from your son during the last two years?

“A. Yes, sir.”

It is, therefore, perfectly clear that the parents had received nothing whatever from the son for a period of at least two years prior to his death. As already stated, we do not attribute to these parents any desire or intent to misrepresent the facts when they stated on direct examination that the son had contributed to their support up to the date of his death. But it seems that they had fallen into the error of considering that whatever amounts they had received from the sale of land were contributions made to them by the son.

The facts about the land are that in 1906, twenty-one years before the son died, he and his father purchased some land for which they paid $250. Two years later, the son sold his interest in the land to the father and retained notes and a mortgage, and a short time thereafter gave the notes to his father and the mortgage was can-celled. The land became valuable, not only for timber, but for minerals, so that from 1907 to 1927 the father sold timber, mineral leases and land and from that source received $2875.00. Both the father and the mother considered all these amounts as contributions by the son. However, they are not so in fact. The son owned no interest in the land after 1908 and had no interest in the revenues derived from it. The only donation which the son made to the father was of the notes for his one-half interest in the land, and that was nearly twenty years before the son’s death.

We are referred to the case of Balthazar vs. Swift & Company, decided by the Court of Appeal for the Orleans Circuit, on March 4, 1929, and reported in 10 La. App. 25, 120 So. 896, where it was held that a parent in destitute circumstances at the time of a son’s death was actually dependent within the meaning of the compensation acts in view of the legal duty of a child to maintain the parent- in need, under Article 229 of the Civil Code, though the deceased child had never contributed anything to the support of the parent prior to his death.

That decision, if correct (and we question it), is not applicable under the law as it existed at the time plaintiffs’ son was killed. He was killed in 1927 and the act then in force was No. 85 of 1926. The law applicable when the above cited opinion was rendered was Act 247 of 1920. Subdivision 2(n), Sec. 8 of that Act reads as follows:

"In all cases provided for in this section the relation of dependency must exist at the time of the injury and at the time of the death.”

The corresponding provision of Act 85 of 1926 is Subdivision 2(T), Sec. 8, which reads as follows:

“In all cases provided for under this Section the relation or dependency must exist at the time of the accident and at the time of death and the mere expectation or hope of future contributions to the support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.”

The judgment appealed from is correct and is accordingly affirmed.


author: WESTERFIELD, J.

text:
    No. 11,575
    Orleans
    LOMBARDO v. CHECKER CAB CO., INC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Charles Rosen and Louis L. Rosen, of New Orleans, attorneys for plaintiff, appellee.
    Paul L. Fourehy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This appeal was submitted to the court without oral argument or brief on behalf of appellant. The record, superficially considered, seems to justify the judgment appealed from, and it is, therefore, affirmed.

HIGGINS, J., takes no part.


text:
    No. 13,128
    Orleans
    SAUCIER v. McLEAN
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    L. J. Ferry, of New Orleans, attorney for plaintiff, appellee.
    Richard W.' Leche, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff, Saucier, obtained a judgment against the defendant, McLean, as a result of a trial which was had in the absence of McLean and, or, his counsel. An action of nullity was brought attacking the judgment thus obtained and an injunction against its execution applied for. After a trial upon the merits, the trial court declined to issue the injunction and dismissed the suit.

The ground of nullity alleged in the petition is the alleged failure of Saucier to cause a notice of trial to be served upon McLean or his counsel. It is objected that article 606 of the Code of Practice enumerates the vices of form for which a judgment may be annulled, and the ground relied on, in this case, is not among the causes therein enumerated, consequently, it is contended that plaintiff in injunction cannot maintain this action. The precise question was considered by this court in Coltraro vs. Chotin, 1 La. App. 628, where it was pointed out that the enumerations of the causes mentioned i,n article 606, C. P., are not exclusive, and the exception of no cause of action, filed in that case, was overruled.

•The defendant in injunction offered in evidence a notice of trial dated April 25, 1929, addressed to plaintiff’s counsel, informing him that the case would be tried on the 27th day. of May following. On the reverse of this notice appears the return of G. N. Gay, Deputy Constable, certifying that the notice had been received by Him on April 25tH, and served the next day, April 26th, on R. W. Leche, counsel for McLean, plaintiff in injunction. Gay was •placed upon the stand and testified that personal service had been made in accordance with his return. McLean testified that he had no notice of the trial at all and his counsel, Mr. R. W. Leche, testified that no notice of trial had been served upon him.

The question presented, therefore, is whether the notice of trial was, as a matter of fact, served upon Mr. Leche, McLean’s , counsel. Mr. Leche in his testimony concedes the good faith of Gay, the constable, and we hasten to add our entire confidence in the good faith of Mr. Leche, but the positive testimony of Gay must outweigh the negative testimony of Leche. It is quite possible that a lawyer, in the busy routine of his daily affairs, may overlook the service of papers, particularly notices of trials, which are often served upon him, and, having no recollection of the event, be confident that no service was, in fact, made. On the other hand, it is the constable’s duty to make the service and he is required to make written returns giving the date the notice is received and the day it is served and he is, therefore, less likely to be mistaken. Besides the official returns of public officers are presumed to be correct.

Our conclusion is that plaintiff in injunction has failed to carry the burden of proving that the service of notice of the trial was not made in accordance with the return of the constable. It follows that the action of nullity must fail because there is no legal objection to the trial of a case in the absence of defendant and his counsel when notice of trial has been properly served. C. C. Elmer Tank Boiler Co., Inc., vs. Art Cleaners & Dyers, Etc., 9 La. App. 5, 118 So. 773.

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


text:
    No. 13,160
    Orleans
    GRIFFIN v. WASHINGTON FIDELITY NATIONAL LIFE INSURANCE CO.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Chas. J. Mundy, of New Orleans, attor- ( ney for plaintiff, appellant.
    L. R. Hoover, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, alleging that she is the beneficiary named, in a certain policy of life insurance for the sum of ' $188.50, issued to her late husband, Alsay Griffin, by the defendant insurance company, asks judgment against it for that amount. Defendant admits the issuance of the policy and the death of plaintiff’s husband, but resists payment on the ground that “the death certificate of Alsay Griffin shows that his death resulted from a venereal disease and that, under the terms of the policy, the defendant assumed no liability for sickness or death resulting from venereal disease.” The policy, which is in evidence, contains a clause reading as follows:

“No benefits will be paid for sickness or death resulting wholly or in part, directly or indirectly, from any venereal disease, or for suicide, sane or insane.”

The sole question for our consideration, one of fact, is whether Alsay Griffin’s death was caused by a venereal disease.

Griffin died in the Charity Hospital April 29, 1928. A certificate, certified by the secretary of the hospital and setting forth general syphilis as the primary, and anemia as the secondary cause of Griffin’s death, was produced and filed in evidence on the trial of the case. Dr. B. J. De Leureal, house surgeon of the Charity Hospital, identified the certificate as having been based upon information furnished by him as a result of his treatment of the deceased. When asked to explain his diagnosis, Dr. De Leureal answered:

“In the first place, the blood test showed, a positive Wassermann; that is not in itself conclusive of the disease, but that with the physical findings which consisted of a severe syphilitic heart disease and very severe anemia due to some organism, the reflex findings of the case become history of having contracted the disease.”

On behalf of plaintiff, Dr. M. C. Gaines testified that he had treated Griffin for a number of years without discovering the presence of syphilis and expressed the opinion that syphilis was not the cause of his death, but Dr. Gaines admitted that Griffin suffered from anemia, a condition usually present in syphilis. Dr. Gaines made no test of any sort, and, when asked whether he was in a position to say whether or not Griffin died of syphilis, replied in> the negative.

In considering this testimony the trial court reached the conclusion that the defense had been sustained by the evidence and dismissed plaintiff’s case. We are of opinion that its judgment was correct, and it is, for the reasons herein assigned, affirmed.


author: HIGGINS, J.

text:
    No. 13,159
    Orleans
    UNITED MOTOR CAR CO., INC., v. FININ
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)

      Clarence F. Favret, of New Orleans, attorney for plaintiff, appellant.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff entered suit against the defendant for the sum of $150 on six chattel mortgage notes and one unsecured note. The petition alleges that the plaintiff was the holder and owner for value before maturity of six promissory notes, each for the sum of $25, dated June 27, 1927, bearing 8 per cent interest and 20 per cent attorney’s fees for collection, and paraphed to identify them with an act of sale and chattel mortgage before H. L. Hammett, notary public, on June 27, 1927, subject to a credit of $10; that these notes formed part of a series of 10 notes, representing the balance of the purchase'price of a Dodge coupe automobile, which was sold by plaintiff to defendant on said date; that, by the terms of the chattel mortgage, failure to pay any one note when it became due matured the remaining notes; that plaintiff was also the holder and owner for value before maturity of an unsecured note of defendant, dated January 17, 1924, and payable July 17, 1924, for the sum of $25, bearing 8 per cent interest and stipulating 10 per cent attorney’s fees for collection, which note is subject to a credit of»$15 against the principal, and that the interest on this note has been paid up to September 30, 1924, making the total amount due on the notes $150.

Defendant denied liability, and pleaded that some time during the month of November, 1927, that she returned the said Dodge coupe to plaintiff for repairs, and it was subsequently agreed that, in consideration of the return of the car, the balance of the notes would be considered liquidated and the defendant released therefrom.

There was judgment in favor of defendant, dismissing plaintiff’s suit, and plaintiff has appealed.

Plaintiff offered the respective notes in evidence, together with the chattel mortgage, after properly identifying defendant’s signature thereto. The defendant testified that the automobile was sold to her by plaintiff on June 22, 1927, for the sum of $275, and that she paid all of the notes representing the balance of the purchase price, except the notes sued on; that on November 17, 1927, there was a collision between a street car of the New Orleans Public Service and her Dodge coupe on Canal street, and that the automobile was placed in plaintiff’s possession for the purpose of being repaired.

On December 17, 1927, plaintiff gave defendant a written itemized estimate of $82 for repairing the car. On May 15, 1928, it appears that the defendant gave plaintiff’s agent, Geo. W. Ray, a written authorization to sell the Dodge coupe and credit her account with whatever amount was received from the sale. On May 23, 1928, the plaintiff sold defendant’s car for the sum of $10, which represents the credit allowed her, as alleged in the petition.

The sole question before the court is one of fact; i. e., whether or not the car was returned to plaintiff under an oral agreement whereby defendant’s indebtedness was to be considered canceled In consideration of the' return of the car.

The sole witnesses who testified in the case were Mr. J. B. Bahn, treasurer of the plaintiff company, and the defendant. Mr. Bahn testified only from the records of the company, as he did not handle the matter in question. Mr. Geo. W. Ray, secretary and salesman of the plaintiff company, handled the transaction. It appears that Mr. Ray was still in the employ of the plaintiff, but he was not produced as a witness, although he was available.

The judge a quo, who heard and saw the witnesses, believed the testimony of the defendant. Mr. Ray, the representative of the company who dealt with defendant, was not produced as a witness, although he was still in plaintiff’s employ and was available, and the presumption, therefore, follows that, if he had been placed on the stand, his testimony would have been against plaintiff and corroborated that* 'of the defendant. A careful reading of the record does not convince us that the- judgment of the lower court is erroneous.

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


author: MOUTON, J.

text:
    No. 515
    First Circuit
    A. MATERNIS CO., INC., v. BATON ROUGE POSTER ADVERTISING CO.
    (December 3, 1929. Opinion and Decree.)

      W. 0. Watson, of Baton Rouge, attorney for plaintiff, appellee.
    Ratcliff & Herget, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff company obtained the issuance of a preliminary injunction prohibiting defendant company from placing a signboard on a piece of property which plaintiff alleges was leased to it by Babin and Laycock of the city of Baton Rouge.

After attacking the issuance of the preliminary orders which had been issued in the case for technical reasons, which it is unnecessary to notice, defendant filed its answer asking the recall of the preliminary injunction; also, that the court decree the strip of ground in contest to be covered by a lease which defendant contends it had obtained from Babin and Laycock, the alleged lessors of the plaintiff; that it have possession thereof, and damages in the sum of $300 for the alleged destruction of an advertising signboard, for worry and loss of time, for rents and good will. This claim for damages embodies a reconventional demand.

The lower court rendered judgment perpetuating’ the injunction from which defendant prosecutes this appeal. ’

In its petition plaintiff alleges that it leased the property from Babin and Lay-cock for one year, dating from September 15, 1928, and without averring for what amount. The proof -shows that the lease to plaintiff was at $10 per year, but if for more than one year, it does not appeár. It is therefore plain from the allegations of plaintiff’s petition, and the proof that as to amount this court would be without jurisdiction, as there is nothing to indicate that the lease was' for a sum exceeding $100.

This court has, however, jurisdiction in all cases where the district courts have exclusive original jurisdiction, regardless of the amount involved. Const.. 1921, art. 7, sec. 29, p. 46.

The Constitution, article 7, section 48, which confers jurisdiction on justices of the peace, gives them jurisdiction concurrently with district judges in suits not exceeding $100 of landlords for possession of leased premises for, monthly or yearly rents for the unexpired term of the lease, not exceeding said amount. If this suit was of that character it would be proper to decide that the jurisdiction of the district court was not exclusive in this case so as to invest us with jurisdiction.

Section 48, conferring jurisdiction on justices, above cited, proceeds to say, however, that these justices shall have no jurisdiction when the title to real estate is involved, which is also found in Const. 1921, section 35, article 7, par. 3, p. 49.

Civ. Code, article 2015, says that leases on land form real obligations. As .these contracts give real rights, we think it safer, as the right of appeal is liberally construed, to hold that the justices of the peace had no concurrent jurisdiction with the district judge in the instant case under sections 35 and 48 above cited, as to which we do not' find it to be “otherwise provided” in the Constitution.

It will be observed that plaintiff alleges that its lease was for one year from the 15th of September, 1928, to the 15th of September, 1929. Hence, it is plain from plaintiff’s own allegation, and from the proof to which we have hereinabove alluded, that the lease expired on September 15, 1929. Any obligation that might have arisen in favor of plaintiff under that lease has therefore been extinguished by the limitation of time, and any right of action plaintiff may have had thereunder has likewise ceased to exist and is extinguished.

In the case of McMichael vs. Thomas, 164 La. 233, 113 South. 828, the issue was as to whether plaintiff had any interest in the suit, as it was contended that defendant had purchased plaintiff’s claim. The case was remanded to establish that fact, which having been shown, the court, when the case came back for review, said the obligation had been extinguished, and for that reason dismissed the appeal.

Here, plaintiff has no more interest in the lease which has expired on September 15, 1929, and this court could not possibly affirm a judgment perpetuating an injunction on a lease, which if it ever existed, had been extinguished. Hence, acting in compliance with the course adopted by the court in McMichael vs. Thomas, 164 La. 233, 113 South. 828, the appeal, as to plaintiff’s suit, is hereby dismissed.

RECONVENTION

The defendant claims in reconvention that its rights under its lease from Babin and Laycock covers the location where plaintiff has erectea its signboard; and, asks that the preliminary writ of injunction be recalled; that the property in contest be decreed to be under its lease, and defendant entitled to its possession. Having dismissed the appeal of the plaintiff, we cannot consider the foregoing propositions which would necessarily bring into contest the issues involved in the suit of plaintiff, under its alleged lease, which we cannot review, having dismissed its appeal. It is different, however, in reference to the claim in damages for the alleged acts of the plaintiff in demolishing defendant’s signboard, and for the resulting worry and loss of rents.

These damages, if committed by plaintiff, can be considered independently of plaintiff’s rights under its alleged lease, as they would be the result of an unlawful invasion of private property. Defendant, no doubt, has an appeal to this court for its claim of $300 damages under section 1, article 7, of the Constitution of 1921, which grants an appeal on a reconventional demand to the court having jurisdiction of the main demand; and, if there be no right of appeal on the main demand, to the court having jurisdiction of the reconventional demand. The proof shows that plaintiff erected its signboard at a distance of over 21 inches from the signboard of defendant, and not within the line to which defendant was entitled to possession under its lease from Bahin and Lay-cock. There was therefore no violation of the rights of possession or property of defendant by the plaintiff, and hence there is no foundation to support the claim in reconvention asserted herein.

The claim for damages in reconvention by defendant is denied and rejected, the defendant to pay the costs incurred in the reconventional demand, and on this appeal.


text:
    No. 11,533
    Orleans
    CONN LUMBER CO. v. HORTMAN-SALMEN CO., INC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Louis H. Yarrut, "of New Orleans, attorney for plaintiff, appellee.
    E. A. Carmouche, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, a commercial co-partnership, engaged in the manufacturing, buying and selling of all grades of lumber, entered suit against the defendant corporation, which is engaged in the business of buying and selling lumber, for the sum of $1,494.75, with legal interest from June 1, 1926, until paid. The petition alleges that on or about May 27, 1926, one W. D. McDowell, purchasing agent, and one H. C. Moragne, inspector and road buyer, who were the duly authorized agents of the defendant, called upon Mr. A. L. Conn, representative of the plaintiff, for the purpose of buying certain piling from plaintiff for the account of defendant corporation; that said Conn informed the agents of the defendant that he would sell them such piling as defendant’s agents would select at $.15 per linear foot, f. o. b. cars Bogalusa, all of which was agreed to by the said McDowell and Moragne; that in accordance with the said verbal agreement the said Moragne selected certain trees from plaintiff’s forest near Bogalusa and supervised the cutting and peeling of these trees in order to make piling out of them; that all of the labor and work was done by plaintiff’s force in plaintiff’s place of business; that the said Moragne entirely supervised the cutting and manufacturing of the piling and inspected and loaded the same for shipment to defendant at New Orleans; that plaintiff sold and delivered to defendant a total of 9,965 linear feet of piling at $.15 per foot, .or a total of $1,494.75; that under the agreement the selection and acceptance of the piling at Bogalusa would he final, and that said piling were to be paid for on or before June 1, 1926; and that defendant had failed to pay for same notwithstanding amicable demand.

Defendant admits substantially all the allegations of plaintiff’s petition but defends the ease on the" ground that the said H. C. Moragne was the agent and representative of the defendant for the purpose of buying manufactured piling and had no authority to undertake to manufacture piling with the laboring forces of the plaintiff; that as a result of said Moragne undertaking the manufacturing of the piling he became the agent and representative of the plaintiff, and that the ■said Moragne thereby placed himself in a position where he could not serve both •plaintiff and defendant, as their interests were conflicting; that the said A. L. Conn was guilty of collusion with the said Moragne and as a result of same that said Moragne breached his duty and obligation to hi,s principal by permitting useless piling, unsuitable for the purposes for which Moragne was supposed to buy them, to be shipped to the defendant, with the result that a large portion of the piling was rejected at New Orleans by defendant; that defendant held said piling for the account of plaintiff and advised it that, if the piling were not removed by plaintiff, defendant would sell them in the open market for plaintiff’s account at the best prices obtainable; and that the said Moragne, while in the employ of defendant and receiving compensation for his exclusive service, was at the same time in the employment of plaintiff as its agent for soliciting business.

In a supplemental answer filed on April 20, 1928, defendant admitted that it sold 107 piling, which had originally been rejected, for the price and sum of $1,007, against which there were certain expenses for handling and selling, ' amounting to $520.29, leaving a balance of $888.71, and confessed judgment for this amount. On a rule taken by plaintiff, judgment pro tanto for $888.71 was rendered in favor of plaintiff.

On the trial of the case on the merits there was judgment in favor of plaintiff for the difference between $1,494.75 and $888.71, or $606.04, with legal interest from June 1, 1926, until paid. From this judgment defendant took this appeal.

The record shows that there were 147 piling shipped by plaintiff to defendant, and that defendant rejected 107 of the piling and accepted 40 of them when the shipment reached New Orleans.

The facts in the case are practically agreed upon, except that the defendant contends that, as Mr. A. L. Conn knew that Mr. Moragne was the representative of the defendant company, whose duty it was to inspect the piling before their shipment to New Orleans, and, as Mr. Conn invited and permitted Mr. Moragne to go into plaintiff’s forest, select, mark, blaze, and supervise the cutting of the standing trees out of which the piling were manufactured, said Moragne having full charge over plaintiff’s crew of workmen, said Conn-thereby placed defendant’s agent in a position where he was unable to do his complete and conscientious duty towards his principal in the selection of the piling.

The record does not show that there was any collusion between Mr. Conn and Mr. Moragne, but that Mr. Conn simply stated to Mr. Moragne and Mr. McDowell that he did not have much experience in handling piling, but that, if the timber in plaintiff’s forest was satisfactory, they could select the trees from which the piling would be manufactured at a cost of $.15 per linear foot for the piling so selected and manufactured by plaintiff’s workmen under the supervision of Mr. Moragne. The record also shows that Mr. Moragne did select the trees from which the piling were manufactured, and that all of this was done under his supervision. He inspected and approved them before they were shipped to defendant at New Orleans.

We fail to see wherein Mr. Moragne placed himself in a position where he deprived his principal of his' judgment and loyalty as its inspector. There was nothing inconsistent about Mr. Moragne’s position. He was at all times the representative of the defendant company and was given the choice of selecting the trees from which' the piling were to be manufactured. After they were so manufactured he was permitted to inspect them before shipment to his principal. There is nothing in the record to show that he was guilty of disloyalty or unfaithfulness to his -principal. We fail to find where any fraud was- practiced upon defendant. Mr. Conn did not in any way influence Mr. Moragne in the selection of the trees and approving the piling after they were manufactured. The record shows- that Mr. Conn was absent during this time.

The supplemental answer of the defendant shows that 107 piles were rejected and 40 accepted. The value of the accepted 40 was $402 and of the rejected 107 was $1,007. This shows that those accepted by Mr. Moragne for defendant’s account ' were worth what defendant obliged itself to pay for them.

For the reasons assigned ■ the judgment is affirmed.


author: JANVIER, J.

text:
    No. 11,852
    Orleans
    CONNERS v. HOUMA PACKING CO., INC., ET AL.
    (December 16, 1929. Opinion and Decree.)

      Terriberry, Young, Rault & Carroll, of New Orleans, attorneys for plaintiff, appellant.
    John C. Hollingsworth and Lloyd A. Ray, of New Orleans, attorneys for Linest Picou, defendant, appellee.
    N. H. Polmer, of New Orleans, and Claude Ellender, of Houma, attorneys for Houma Packing Co., Inc., defendants, appellees.
   JANVIER, J.

Plaintiff seeks to recover $200 as the cost of repairs to his automobile, made necessary- by its running into a post on the neutral ground of St. Charles Avenue. He alleges that he ran it into the post in an effort to avoid striking a truck owned by defendant, Picou, and' driven by an employee of defendant, Houma Packing Company, Inc.

The trial court dismissed the suit as to both defendants.

As to defendant Picou, this action was clearly correct. Picou had rented the truck to Houma Packing Company, Inc., and it was controlled at the time of the accident entirely by an employee of the packing company, and there is nothing in the evidence which in any way differentiates this case from the .many others in which it has been held that an owner of an automobile is not, as a matter of law, liable for damage caused by it in the hands of a lessee or a borrower. Marullo vs. St. Pasteur, 144 La. 926, 81 So. 408.

As to. the other defendant, we are unable to agree with the trial judge. It is true that only a question of fact is involved, and we are therefore very loath to reverse his ' finding, but a careful study of the record leaves us well convinced that that finding was erroneous.

Plaintiff was driving his car up St. Charles Avenue and was “hugging” the neutral ground. Noticing ahead of him a Ford car, also close to the neutral ground, he blew his horn and the Ford pulled over to the right. Just at that moment the truck operated by defendant’s employee, acting within the scope of his employment, dashed past on plaintiff’s right and cut sharply to the left, passing between the Ford and the neutral ground. As this maneuver caused it to swerve directly into the path of iplaintiff’s car, plaintiff, fearing that his car would crash into the truck, pulled sharply to the left and ran upon the neutral ground. .As there was a light post '.n his path his car was considerably damaged. The truck went on its way and was only stopped w-hen plaintiff, Conners, having secured the services of a passing car, caught up with it several blocks above the scene of the accident.

A most peculiar statement was then made by the driver of the truck. He claimed that, looking through the rear of' his truck, he had seen the Dodge car of plaintiff strike the Ford and that the Dodge was then bounced off into the post. It is very evident that no such thing took place.

Without the evidence of Amoss, a disinterested witness, who was driving down the other side of the avenue, we would find it somewhat difficult to determine just what were the true facts, .but we think that the weight of his testimony causes the evidence to preponderate substantially towards plaintiff’s side of the case.

That the plaintiff did not produce as a witness the driver of the Ford is of no significance one way or the other. It was conclusively shown that both parties talked to this driver after the accident, and we cannot see how either was under any greater duty to call him as a witness than was the other. At any rate, plaintiff’s attorney, a reputable member of the bar, explained that he himself had talked to the witness in question, who had stated that he knew nothing about the accident. It is, of course, the duty of plaintiff to make his case certain by a preponderance of the evidence. But when he has done this, there is no presumption against him if he fails to produce witnesses who are equally available to the other party.

That the truck was not actually in collision with plaintiff’s car is of no importance. He who, by his negligence, creates a dangerous situation, is liable to one who, acting as a reasonably prudent person would act, is injured while attempting to avoid the danger thus created.

It is therefore ordered, adjudged and decreed that the judgment in favor of defendant, Linest Picou, be and it is affirmed, and that the judgment in favor of Houma Packing Co., Inc., be and it is annulled, avoided and reversed, and that there now be judgment in favor of plaintiff, Michael L. Conners, and against Houma Packing Company, Inc., in the sum of $200, with interest at 5 per cent per annum from May 8, 1928, until paid, and for all costs.


text:
    No. 11,499
    Orleans
    ANTOINE v. LOUISIANA OIL BURNING EQUIPMENT CO., INC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)

      Eugene V. Parham, of New Orleans, attorney for plaintiff, appellee.
    Hy. B. Curtis, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues for $538 which 'is admitted to be due him. Defendant claims by way of set-off that plaintiff owes it $446.50, and confesses judgment for the balance or $91.50.

The trial court rendered judgment for plaintiff in the full amount claimed, dismissing defendant’s plea in compensation from which judgment defendant has appealed.

It appears that the plaintiff, Antoine, had a contract with Edward P. Dolan to install a heating plant in his (Dolan's) residence and that Antoine entered into a contract with defendant to furnish and install an oil burner in the furnace attached to the heating system. It is for the price of this oil burner and cost of installation that defendant’s claim in compensation is made. Antoine resists defendant’s claim upon the ground that the burner furnished and installed by defendant was inefficient; that it would not heat Mr. Dolan’s home and that Dolan refused to pay him for the burner and still refuses to do so, .holding back that part of the money due him under his contract.

Defendant’s position in brief and argument is that it installed a Kleen Heat burner, a well-known nationally advertised product, which Antoine ordered' installed in Dolan’s house, and that if the burner is inefficient because too small or unsuited to the heating system, plaintiff is to blame. However, defendant is not altogether consistent, because the record clearly shows that defendant at all times insisted that the burner it installed was capable of heating the house properly.

We are satisfied, however, that the burner did not burn properly. When attached to the heating system installed by plaintiff it would not heat Mr. Dolan’s house and when it was removed and another burner installed the heating system functioned perfectly.

The question is who was responsible for the selection of the burner? We, like the judge of the trial court, have concluded that defendant assumed that responsibility. Mr. Dolan’s architect specified a KleenHeat burner but the size and' capacity of the burner was determined by' defendant’s president, Mr. Fiduccia, who describes his occupation as a- “combustion engineer.” Fiduccia examined the heating system before installing the burner and presumably obtained a burner which he considered of proper size and capacity. To suppose -otherwise' would not be complimentary to his business reputation which the record indicates was very good. Defendant’s expert, its combustion engineer, selected the burner he considered adapted to the work to be done by it and he erred. For the consequences of its president’s mistake, defend-' ant is responsible.

The judgment appealed from seems to us to be correct and consequently and for the reasons herein assigned, it is affirmed.

JANVIER, J., takes no part.


author: WESTERPIELD, J.

text:
    No. 11,579
    Orleans
    CARTER v. DICKS
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    John J. Jackson, of Hammond, attorney for plaintiff, appellee.
    Louis R. Hoover, of New Orleans, attorney for defendant, appellant.
   WESTERPIELD, J.

This suit filed September 9, 1927, is brought by C. C. Carter as natural tutor of his minor children, Helen, Edith, and Gurley Carter, residents of Tangipahoa parish, against Arthur H. Dicks, a resident of the city of New Orleans, for the return of $1,000 alleged to have been intrusted to Dicks in July, 1918, for the purpose of investment, by the late Mrs. Helen Gurley Carter, wife of plaintiff and mother of the minor children on whose behalf he sues.

Dicks, in his answer, admits the receipt of the $1,000 “nearly ten years ago,’’ but claims that the money was given to him as a loan and not for investment. He also filed a plea of prescription of 3 years.

The question presented by the appeal is whether the transaction was a loan or a deposit, the prescription applicable to a loan being 3 years and that to a deposit 10 years.

After considering the testimony in the record, we are unable to say that the trial judge, in deciding this issue in favor of plaintiff and holding, that the sum admitted to have been received by Dicks was a deposit, was clearly erroneous. Under familiar principles of appellate procedure, the judgment of the trial court under the circumstances should not be disturbed, and it is therefore, and for the reasons herein assigned, affirmed.

HIGGINS, J., takes no part.


author: HIGGINS, ' J.

text:
    No. 12,010
    Orleans
    GRUNTZ v. FRANK JORDANO, INC.
    (December 16, 1929. Opinion and Decree.)
    Fred Middleton, of New Orleans, attorney for plaintiff, appellee.
    Gerald Netter and R. A. Dowling, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, ' J.

Plaintiff entered, suit against defendant, a real estate broker, to recover an alleged deposit of $300 in connection with a real estate transaction. Defendant denied liability and claimed the $300 as commission earned under the alleged contract. There was • judgment in favor of plaintiff, and defendant has appealed.

The record shows that on August 18, 1928, plaintiff and defendant entered into a written contract whereby plaintiff agreed to purchase a certain piece of real estate in the parish of Jefferson for the sum of $3,000, said contract containing the following stipulation:

“This offer subject to and predicated upon an offer of Alphonse Gruntz being accepted.”

This clause in the contract referred to another contract between Alphonse Gruntz and Cristina & Lauricella, Inc., whereby Alphonse Gruntz agreed to exchange three acres of land with the buildings and improvements thereon for $10,000 cash and a parcel of land consisting of 146 acres in the “Modern Farm subdivision.” The contract between Cristina & Lauricella, Inc., and Alphonse Gruntz contained the following clause:

“Subject to homestead loan of $15,000.”

The contract between Alphonse Gruntz and Cristina & Lauricella, Inc., was never carried out, although Alphonse Gruntz was at all times ready and willing to perform his part of the contract. The evidence shows that defendant acted as real estate agent and broker, in handling both of these contracts. The contract between plaintiff and defendant contained the further stipulation that the contract would remain in force and effect for a period of 45 days. Notwithstanding more than 45 days had elapsed, neither of the contracts was carried out, and thereupon plaintiff asked for the return of his deposit of $300, which defendant refused to return to him, on the ground that he had earned the $300 as a commission.

This, court has repeatedly held that a contract for the sale of real estate, containing a provision “subject to a homestead loan,’’ is unenforceable, because such a stipulation is a potestative condition. Titus vs. Cunningham et al., 7 La. App. 37; Parks vs. Cilluffa, 7 La. App. 749; Mathews Bros. vs. Schoenberger, 11 La. App. 155, 123 So. 133. Therefore the defendant failed to secure a valid and enforceable contract in behalf of Alphonse Gruntz, and, as the plaintiff’s contract contained the express condition that it was predicated upon the Alphonse Gruntz agreement being legally accepted, the agreement between plaintiff and defendant necessarily fell. The plaintiff is therefore entitled to recover the deposit of $300 from the defendant.

The judgment is affirmed.


author: BOATNER, Judge ad hoc.

text:
    No. 11,632
    Orleans
    CAVANAUGH v. BLAUM
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Daniel Wendling and E. M. Stafford, of New Orleans, attorneys for plaintiff, appellant.
    E. R. Mabry and St. Clair Adams, of New Orleans, attorneys for defendant, appellee.
   BOATNER, Judge ad hoc.

This is a suit by James Cavanaugh, father of the minor, William Cavanaugh, claiming damages for personal injuries to his son, alIeged to be due to the negligent operation of the defendant’s automobile. The defendant denies all charges of negligence, and avers that the accident was entirely due to the fault of the child, in that he ran into the side of his automobile.

All the witnesses agree that the plaintiff’s son came, in collision with the automobile driven by, the defendant in a city street near the middle of a block, and that the boy struck the automobile at the side of the left front fender, and as he fell alongside the automobile its left rear wheel ran over one of his legs, and the preponderance of the proof is that the boy, leaving the banquette, suddenly ran upon and across the roadway into the automobile, which was being driven slowly along the other side of the street. The roadway is but 24 feet wide. Por the boy to go the short distance from the edge of the banquette to the side of the car required but an instant of time. As soon as the defendant realized that the collision had occurred, he applied his brakes, and the automobile stopped just 5 feet beyond where the boy lay on the pavement. Near the ■place of the accident there is a school, and at the time the children, including the plaintiff’s son, were coming out for their noon recess. It is true, of course, that such a situation imposes on the driver of an automobile very great caution; but It was noon, the defendant’s speed was slow, he was on the right side of the street, he had no reason to anticipate that the boy would run into his automobile from across the street, and after he became aware that the accident was imminent there was nothing he could do to avert it. These facts acquit the defendant of negligence.

The case was tried below before a jury, which brought in a verdict for the defendant. We agree with the jury, and the judgment appealed from is affirmed.


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    No. 11,481
    Orleans
    LANSALOT v. MIHALJEVICH
    (December 16, 1929. Opinion and Decree.)

      L. H. Perez and A. S. Cain, of New Orleans, attorneys for plaintiff, appellee.
    0. S. Livaudais, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues for rent in the sum of $750, claimed to be due on six notes of $125 each. Defendant admits the execution of the lease and notes, but resists payment on the claim that plaintiff, the landlord, during defendant’s absence from the premises and from the city, took forcible possession and appropriated defendant’s movable property, which was contained in the leased premises, and which was worth $1,400.

In his testimony defendant admits that, at the time of the forcible entry by the landlord, three of the rent notes were matured and unpaid.

This . default, the landlord claims, matured all of the remaining notes, and gave him the right to seize the contents of the premises. He is quite right in this contention, but quite wrong in his assumption that he could, without the assistance of legal process, break into the property. Pelletier vs. Sutter et al., 10 La. App. 662, 121 So. 364. Certainly he had no right to appropriate defendant’s movables, whatever may have been their value.

At the time of the occurrence of the default two courses were open to plaintiff. Under the terms of the lease he could have brought suit for the whole amount of the rent due and to become due, and could, by legal process, have caused the contents of the premises to be seized and sold. The other course which he could have followed would have required that he bring suit only for the amount due, cancel the lease for1 the balance of the term, and cause the contents to be sold and the proceeds devoted to the payment of the rent which had matured. By his action in breaking into the property and forcibly taking possession of it, he indicated his intention of terminating the lease at that time and therefore, by his own action, fixed the amount of rent due at $375, which was the total of the matured notes.

By breaking into the premises and by forcibly taking possession of defendant’s movables, he (the landlord) made himself liable for such damage, as was sustained by the defendant.

Just what this damage amounted to is difficult to ' determine. We find it hard to believe, after a reading of the testimony, that the contents were worth as much as defendant claims, but it appears from the testimony of the landlord himself that he knew that a tentative arrangement had been made by defendant to sell the movables for $800. It is true that this deal: was not consummated, but it seems to establish the fact that the movables were worth at least more than $375, which is' sufficient to offset the claim of the landlord on the notes. We therefore believe that the claim of the defendant that the damage caused him at least offsets the amount of his debt to plaintiff has been established.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant and against plaintiff, dismissing plaintiff’s suit at his cost.


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    No. 3579
    Second Circuit
    McLEMORE, INC., v. GREEN BROS. LUMBER CO., INC.
    (December 31, 1929. Opinion and Decree.)
    Hodge & Barnette, of Rayville, attorneys for plaintiff, appellant.
    Smith & McGregor, of Rayville, attorneys for defendant, appellee.
   ODOM, J.

This is a suit brought by plaintiff to recover $411.23, the balance due on an open account for goods and merchandise alleged to have been sold and delivered to the defendant, which is a corporation. The account sued on is not disputed, but the defense is that the goods were not sold to the defendant corporation nor delivered to it, and therefore that it is not responsible for the account.

The testimony shows that during the years 1925, 1926 and 1927, Cage McLemore .was operating a bakery and market under the trade name of “City Bakery,” which subsequently was adjudicated a bankrupt and its property, including accounts due it, sold to the plaintiff corporation. It further shows that during those years there were sold by the said City Bakery goods and merchandise amounting to more than $800 to Jim Green and his wife, on which account there was paid something like $400. The City Bakery kept its accounts under the system known as the “MaCaskey Register” system, under which every item purchased is listed on a slip for which there is a duplicate given to the purchaser. These slips shovr the name of the purchaser, the items purchased, the amounts and the date. Plaintiff offered in evidence a slip showing each and every item charged. These slips show that the items purchased were gotten either by Mrs. Jim Green or Jim Green himself. But they were all charged to Green Brothers Lumber Company, Incorporated, which is a corporation.

There is no testimony to show that the City Bakery or those in charge of it had any authority to charge items to the corporation. Mr. C. McLemore testified that the goods were sold to the corporation, and was asked the circumstances under which they were sold and by what authority they were sold and charged to the corporation. He failed to give any satisfactory testimony on that point. However, he stated that in the year 1924, and prior thereto, his company, or McLemore Brothers, were operating a wholesale concern in the town of Rayville and that Green Brothers Lumber Company, Inc., a corporation, purchased goods at wholesale which were charged to the corporation. But the testimony shows that all the items purchased from the wholesale concern and charged to Grden Brothers were paid for by the corporation. But, as stated, there is no testimony at all to show that the items on the open account which forms the basis of this suit were sold to or properly charged to the corporation. On the other hand, Jim Green, who was a stockholder in the corporation, testified positively that each and every item on the account was purchased by him or his wife for their personal use and should have been charged to him personally. It is further shown that long prior to the beginning of the transactions out of which this suit grows, Jim Green had an account with the City Bakery on which he had defaulted. The contention of plaintiff is that these goods would not have been sold to Jim Green on his account, because of the fact that he had failed to pay his other account and for that reason they were charged to the corporation of which he was a member. It can be readily understood why plaintiff would not want to sell Jim Green, but certainly if the corporation is to be held liable for this account, the burden was upon plaintiff to show that the corporation had authorized the purchase of the goods for its account, or at least that it had received the goods and made use of them. While plaintiff alleged and attempted to prove that the goods were properly charged to the defendant corporation, yet there is no testimony at all to that effect. On the contrary, each and every member of the defendant corporation testified positively that the corporation ceased operations in the latter part of 1924, and that its mules and wagons were turned over to Jim Green to be cared for and used by him in a separate and independent logging transaction conducted in the name and for the benefit of the said Jim Green, and as stated, Jim Green himself testified that he had his wife purchase the goods for their own use and benefit. We note on the account that there are three charges for hay; but Jim Green testified that he him-' self purchased the hay to feed the mules while he was conducting a logging business with which the corporation had no connection whatsoever.

Counsel for plaintiff argue and. cite authority to the effect that where a general manager of a corporation contracts debts for the corporation in due course, the presumption is that the corporation has authorized the transactions and that it cannot escape liability. But the facts in this case show that the account sought to be collected from the defendant corporation was not made either for or in the name of the corporation. Mr. Ed Green, president of the corporation, as well as other members of it, testified positively that Jim Green had no authority to make this account for it, and as stated, the plaintiff did not testify that anyone with authority had ever authorized those charges to be made against the defendant. In other words, there is not shown to be any connection whatsoever between the defendant corporation and the plaintiff, insofar as this account is concerned. It follows necessarily that plaintiff cannot recover.

The judgment appealed from, rejecting plaintiff’s demands is correct, and is therefore affirmed, with costs in both courts.


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    No. 3694
    Second Circuit
    BROOK-MAYS & CO. v. RILES ET AL.
    (December 31, 1929. Opinion and Decree.)
    J. Norman Coon and J. C. Theus, Jr., of Monroe, attorneys for plaintiff, appellee.
    Dawkins & Dawkins, of Monroe, attorneys for defendants, appellants.
   WEBB, J.

On April 3, 1928, plaintiff, Brook-Mays & Company, sold a piano to Mrs. H. L. Riles, wife of H. L. Riles, at the price of $495, of which $35 was paid at the time of the sale, and for the balance of $460 Mrs. Riles gave her note, payable in monthly installments of $15 each, bearing six per ceht per annum interest from April 3, 1928, and stipulating ten per cent as attorney’s fees in event the note should be placed in the hands of attorneys for collection, and providing that, in the event of failure to pay any installment at maturity, all installments should become due and payable, and to secure the payment of the principal, interest, attorney’s fee and cost, Mrs. Riles gave a chattel mortgage on the piano.

The property was delivered at the residence of the husband and wife, and payments made on the note aggregating $85. The piano was destroyed by fire, and no further payments being made on the note, plaintiff, after demand on Mrs. Riles and her husband, H. L. Riles, for payment, brought this action to recover judgment against them in solido; it being alleged ‘hat the purchase had been made by Mrs. Riles at the request and with the consent of her husband for the use and benefit of the community existing between them, and had inured to the benefit of the community, and H. L. Riles had made payments on the note.

Mrs. Riles did not make any appearance, and her husband, H. L. Riles, after filing an exception of no cause of action, answered admitting the existence of the marital relationship, and otherwise denied plaintiff’s allegations, and on trial, judgment being against defendants in favor of plaintiff as prayed for, H. L. Riles alone appeals.

Appellant states that the only question involved is whether or not the wife can bind the community by giving a promissory note in payment of property not classed as a necessity, and while the question might involve the consideration of the law regulating the community existing between married persons, as well as the right of a married woman to acquire property for her separate use and benefit or her separate estate, but conceding that the wife did not have authority to purchase the piano and bind the community, the presumption of law is that the property fell into the community and became an asset of the community (art. 2402, Civil Code), and it is not suggested that the" husband may not ratify the contracts of the wife made for the benefit of the community.

In the present instance, it was shown that the husband knew of the-purchase by the wife and that she had given the note, as he had made payments thereon, and it was also shown that he regarded and dealt with the property as a community asset, and -the community being the beneficiary of the contract, we are of the opinion that the husband should be held to have ratified the contract made by the wife, and that he was properly held liable on the note given by her.

The judgment is affirmed.


text:
    No. 3628
    Second Circuit
    NEILSON v. LINCOLN PARISH SCHOOL BOARD
    (December 31, 1929. Opinion and Decree.)
    J. W. Elder, of Ruston, attorney for plaintiff, appellant.

      Wm. X Hammon, of Jonesboro, attorney for defendant, appellee.
   ODOM, J.

On July 5, 1928, plaintiff was employed by the Lincoln parish school board as teacher for the Cypress school, a rural public school' in that parish, for a term of nine months, at $75 per month, payable monthly. She and the board, represented by the superintendent, signed a contract in the usual form, and she began her work on September 3, and continued to teach for about six weeks.

On October 2, the board, in regular session, ordered the Cypress school closed and arranged to have the children of that community transferred to the public school at Ruston.

Plaintiff was notified of the action of the board by the superintendent in a letter dated October 2nd, and in the same letter she was ordered to close the school and to return all records to the office of the board. She reported at the schoolhouse for duty on the following Monday morning, but no pupils appeared, as the board in the meantime had arranged to transport the children to Ruston by truck. The board paid plaintiff’s salary for two months, but refused to make further payments. The present suit is against the board to collect the remaining seven months’ salary, amounting to $525. She alleges that the board discharged her without right or authority “and refused to give her another school, and that her entire contract has become due and demandable.”

The board, in answer, admitted the employment of plaintiff, as alleged, but denied liability, setting up as a defense that plaintiff was not discharged, but that under the law it became necessary to close the school, due to the fact that an average attendance of 10 pupils had not been maintained, and that plaintiff accepted employment with full knowledge that the board could not, under the law, open or maintain a public school unless an average attendance of 10 could be maintained, and with knowledge that, unless such average could be maintained, the school would be closed and her contract ipso facto terminated, and that she accepted employment on those- conditions.

Plaintiff’s demands were rejected, and she prosecutes this appeal.

OPINION

Cypress school is in a rural section of Lincoln parish, and it seems that prior to the meeting of the board in July, when schools were established and teachers appointed, there was some objection on the part of some of the citizens to the opening of a school there, due to the fact that it was probable that the required attendance could not be secured. Anticipating such opposition, plaintiff, who lived in that community, and some of her friends, who wanted the school established, went before the superintendent to discuss the matter of opening the school. Mrs. Neilson says that “we came down and talked to Mr. Campbell (the superintendent of schools) about the possibility of retaining the school there.” She testified that she was familiar with conditions which prevailed in the community, and the difficulty of maintaining an average. She was asked if she was familiar with the school laws governing public schools, and she answered that she was, and, on being asked if she knew that it was necessary under the law to have an average attendance of 10 i,n order to maintain the school she said, “I knew the law had such provisions, but I didn’t think it compulsory.”

Some three weeks after beginning her work, plaintiff went to Ruston and saw the superintendent, who told her that complaints had come up to him that the proper average was not being maintained, and that, unless conditions i,n that respect were improved, the board would probably close the school at its next regular meeting, and urged her to use her best efforts to get the average up to 10, as required by law. She sent in her report for the first month, showing an average of less than 10, and on that showing the board ordered the school closed. Plaintiff was asked if she knew the reason for closing the school, and she answered: “No," sir, but I thought I did. I knew through what influence closed it.” She was further asked, “You knew that, it was because the required number of children were not present and enrolled in school, didn’t you?” And she answered, “No; I just imagined that was it.”

The record establishes beyond question that plaintiff was thoroughly familiar with the conditions which prevailed in the community, and that it was very questionable whether the school could be maintained, and knew further that, if the average was not made the school would be closed and her further services dispensed with, and she says that she knew the law to be that the board could not continue the school without the proper average. Plaintiff knew that her employment for a full nine months’ term as teacher' in the Cypress school was conditional; that, if the school could not be maintained under the law, her contract would be at an end. Counsel for plaintiff calls attention to the fact that the written document evidencing the board’s obligation to pay her salary for nine months contains no stipulation that, in case it became necessary to close the school, the contract should be at an end. Even so, this was, nevertheless, a contract with a resolutory condition, to the knowledge of plaintiff. Civil Code, art. 2021.

Conditions in contracts are either express or implied.

“They are express, when they appear in the contract; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.” Civil Code, art. 2026.

The condition i.n the contract under consideration, though not express, was implied, first, as a result of the operation of the law; and, second, from the intent of the parties. This was a contract of which the condition formed a part. The condition implied in the contract and well understood by both parties was that the employment should continue if the school continued. This contract, as well as all others of its kind, was made with reference to the public school law in force at the time. The rule universally recognized is that, where a contract is entered into pursuant to a certain law, the law enters into the contract and becomes a part of it as though it were referred to or expressed therein. 13 C. J. 560, sec. 523; 9 Cyc. 582; State vs. Sullivan, 12 La. Ann. 720; In re Hingle, 124 La. 655, 50 So. 616; Ehret vs. Police Jury, 136 La. 391, 67 So. 176.

Under Act No. 100, p. 204, of 1922, the law in force at the time this contract was entered into, parish school boards are not permitted to open or maintain schools in any locality unless an average attendance oí 10 can be maintained. This law must be read into the contract. Construing the contract with reference to the law, with which, as we have said, plaintiff was thoroughly familiar, we must hold that her employment for nine months was conditioned upon the board’s ability to keep the school open for that long. Plaintiff’s records for the first month showed that the school had fallen short of that average. The school could not, therefore, be legally kept open. The board being prohibited by law from maintaining .the school, the contract which it had made with plaintiff became one which was impossible for it to fulfill.

“Every condition of a thing Impossible or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.” Civil Code, art. 2031.

The impossibility of keeping the school open under the law, where an average of 10 could not be maintained, was known to both plaintiff and defendant. Hence we conclude that the parties intended that the contract should continue only so long as the board could, under the law, keep the school open.

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