text:
    No. 10,054
    Orleans
    SHELTON v. GLOBE CONSTRUCTION COMPANY
    (January 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal — Par. 625, 636.
    Decision of trial judge on the question of fact as to existence of a special contract for sale of stock will be affirmed where the evidence is conflicting and there is no manifest error in his decision.
    2. Louisiana Digest — Brokers—Par. 15, 20, 23.
    Where there is a dispute as to exact amount of commissions owed and there is evidence tending to prove that certain stock subscription notes were cancelled with plaintiff’s approval there will be judgment only for amount admitted by defendant.
    3. Louisiana Digest — Brokers — Par. 5; Mandate — Par. 38.
    Civil Code, Art. 2976, making the agent liable if unauthorized to substitute implies that he is not liable if authorized; and the power is granted, when the principal ratified and approved employment of sub-agents by plaintiff.
    Appeal from Division “A”, Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by Byron E. Shelton against Globe Construction Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.

      T. H. McGiehan, of New Orleans, attorney for plaintiff, appellee.
    H. M. Ousley, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sued for nine hundred eighty-five and 50-100 ($985.50) dollars, alleging that he had made a verbal contract with defendant in August, 1922, to sell its stock on a commission basis, as follows: Twenty-five per cent on all stock sold personally by petitioner and ten per cent on all stock sold through sub-agents employed by petitioner; that he personally sold stock aggregating nine hundred ($900.00) dollars on which he is due a commission of two hundred twenty-five ($225.00) dollars, less a credit of thirty-five ($35.00) dollars (amount already paid by defendant); that he sold through his agents stock aggregating twelve thousand forty and 00-100 ($12,040.00) dollars on which he is owed ten per cent commission, amounting to one thousand two hundred four and 00-100 ($1,204.00) dollars, less a credit of four hundred .eight and 50-100 ($408.50) dollars, the total amount due being the amount claimed.

Plaintiff attached to and made part of his petition carbon copy of his letter to defendant, dated May 23rd, 1923, in which he sets forth, according to defendant’s figures, the various sales made by him personally and those made by his sub-agents, hired by him with approval of defendant’s president. In this letter plaintiff gives the names of various stock purchasers, -the amounts purchased, the credits allowed, the letter showing the balance due him the exact amount claimed.

Defendant filed a general denial to this petition.

On the first trial of the case the trial judge refused to admit any evidence tending to show a contract different from the one sued on and gave judgment for plaintiff as prayed.

As defendant .quoted in his petition for a new trial various decisions of the Supreme Court tending to show that the rejected evidence was admissible under a general denial, a new trial was granted, which resulted in a like decision below. From this decision defendant has appealed suspensively to this court.

On the trial (plaintiff, through- its president, E. J. Kelly, sought to show that plaintiff had made a verbal contract in August, 1922, for fifteen per cent commission on amounts collected on sales and that the president, who owned fifty-one per cent of the stock of the company, had later at a time not fixed definitely, verbally agreed to pay plaintiff an additional ten per cent on all his sales for supervising the work of sub-agents to be employed by plaintiff and for soliciting by plaintiff of signatures to certain petitions for paving on various streets.

Although plaintiff took out a writ of subpoena duces tecum for all the books of defendant, the only books brought into court were the check books and the stock book of defendant, which seems to have handled the entire matter in a loose, unbusinesslike way. Several paid checks were filed in evidence by both plaintiff and defendant and some of these bear notations referring to certain stock sales, others are blank as to all explanatory details. As might be expected where all important contracts are made verbally and no detailed books were kept, there is much conflicting evidence as to all important items and as to all payments. From the mass of contradictions and confused statements, which this long record contains, we think the following facts are clear:

(1) Plaintiff was attracted by tbe following advertisements, wbicb appeared in tbe Times-Picayune on Sunday, August 6th, 1922:

“SALESMAN — Security, $50 weekly guarantee with highest commission, 100 per cent co-operation. Red hot leads, proposition talk of town. Here is the psychological moment you’ve been waiting for. Grasp it now and forget your financial troubles-. What I can do you can do, I am no wizard, yet I get gratifying results with this proposition. See me Monday from 10 to 3. Mr. R. Kelly, 301 Louisiana Building.”

(2) Plaintiff made a verbal contract on August 8th with defendant’s then sales manager, R. E. Kelly, a brother of the president and then a director of the company.

(3) On February 25th, 1923, plaintiff with defendant’s approval inserted in the Times-Picayune the following advertisement:

“THREE REAL STOCK SALESMEN to call upon direct leads closing out small issue in going local concern. Highest commissions. See Mr. Shelton, 10 a. m. to 12 a. m., Monday. 301* Louisiana Bldg.”

(4) In answer, to this advertisement and possibly' before plaintiff employed with defendant’s approval several sub-agents, among them, Mazur, Barnett and Doty, and these sub-agents were paid immediately for their individual stock sales by plaintiff by check for which plaintiff was. later reimbursed by the check of the defendant. Defendant’s president explains this roundabout method of payment by stating that he did not know these sub-agents and preferred plaintiff’s checks because they were so prepared as to make it difficult, if not impossible, to raise the amount, a statement corroborated by plaintiff’s paid checks, filed in the record.

(5) Although plaintiff, apparently both from the checks in evidence and also from the testimony of both plaintiff’s and defendant’s witnesses, began work at once and continued until the last of March to devote much time and effort to the business, being especially active in February and March, 1923, he did not secure a permit to sell stock from the Louisiana Securities Commission until December 19th, 1922. This permit contains the following notation:

“This stock must be sold at a price not to exceed its par value. The total expense of disposing of this stock must not exceed fifteen per cent of the par value of the stock sold.”

Mr. Luther Hall, clerk for the commission, testified that if a violation of these clauses was brought to the attention of the commission, the permit of the violating agent would be recalled, but that the commission did not exact reports from the agents showing amounts and prices of sales nor did it take any steps to find out whether these requirements were carried out as written. It was shown by other witnesses that expenses greater than fifteen per cent for sale of stock were sometimes charged to promotion account.

(6) On March 10th, 1923, the president of defendant company wrote a letter to plaintiff reading as follows:

“March 10th, 1923.
“Mr. B. E. Shelton,
“Sales Manager,
“Office.
“Dear Sir:
“Your request for a statement and a settlement of your commission accounts shows the following:
“Commissions earned by you since March 3rd to; date _______________________$623.00
“Less advance for expenses'._______________ 285.00
“Leaving balance due you on this business ______________________________________________$368.00
“Commissions also are due you on notes uncollected ____________________________ 225.00
“Total amount due you to date____________$593.00
“While all the business turned in is good business as the notes are all signed by property owners and will be paid as they mature, you will recall our understanding that you were to be paid when collections are made.
“I wish you would get real busy on these notes and collect the accounts outstanding so I can draw a check in your favor for the above amount to meet your pressing needs that you mentioned.
“Our business is now in good shape and I will look for you to keep up the good work you have started.
“Yours very truly,
“GLOBE CONSTRUCTION CO., INC.,
“By President.
“EJK.”

(7)Defendant apparently admits that the sales were made by plaintiff or his sub-agents as claimed, but defendant tried to prove that the sales were made on the strength of fraudulent representations by plaintiff or his agents and that the notes taken in part payment of purchase price were in many instances cancelled by it later on when the true facts came out.

Plaintiff is shown to Lave written on the subscription contract which he secured from Eugene Daste “10 percent guarantee” and defendant is shown to have cancelled this contract and returned Daste’s check of fifty ($50.00) dollars, (which had been paid on account), as soon as the attention of Director Dazet was called to this guarantee. In explanation of this action, plaintiff states that it was done with the approval of President Kelly and that the duplicate of the subscription contract was shown this officer and kept by him, but no duplicate was produced nor was its existence proved.

This was the only instance in which any attempt at misrepresentation was brought home to plaintiff, but defendant’s president testifies that many subscriptions were cancelled and many compromised on account of misrepresentations by Sub-agent Mazur, who seems to have told. various subscribers that the company would shortly be taken over by an Eastern syndicate and the price advanced at least four ($4.00) dollars per share.

This man Mazur was retained as a stock salesman by defendant after plaintiff left.

(8) The stock book showed that certificates had been issued to each of plaintiff’s subscribers and several of them so testify, although some of them said they had not bought through plaintiff and did not know the name of the agents who sold them. Plaintiff further showed his good faith by subscribing to twenty-five shares of the stock himself.

(9) Defendant instructed all agents to get twenty or twenty-five per cent in cash and balance in notes and these instructions were usually- carried out, but sometimes they took notes for entire amount.

The disputed facts are as to the terms of the contract and as to defendant’s authorization and approval of employment by plaintiff of sub-agents to sell the stock.

The judge of the lower court found that the plaintiff had a contract as claimed in his petition and we can not say that he manifestly erred, although there is much evidence for and against.

Plaintiff swears he had a contract originally for fifteen iper cent on all sales made by him and later in February, 1923, a new agreement was made for ten per cent additional on all sales made by him and ten per cent on all sales by his sub-agents. He refers to sales made by him or his sub-agents to Dr. Bernadas, Eugene Dumas, Geo. H. Turner, Mrs. Gardain, Mr. Mayer and a man named Roevens as instances in which he was paid twenty-five per cent by defendant, but he did not cite any names of purchasers sold by sub-agents, on which he had been paid ten per cent.

Dr. Huhner, against whom this defendant obtained a judgment for two hundred ten ($210.00) dollars on a stock subscription note in a casé entitled Globe Construction Co. vs. Dr. J. S. Huhner, 3 La. App. 259, on the ground that his allegations of fraudulent misrepresentations of Agent Mazur were not proved, testifies in this case that President Kelly asked him “if he was a poor sport” when he called up to know if any Eastern company was going to buy defendant company at an advanced price.

Thos. Malynn answered, when asked if anyone had made guarantee to him about advance in stock: “When I saw Mr. Kelly (the president) he said that there was a syndicate that' would take them. He said he had a syndicate that had offered that, but he would not take their proposition.”

The subscription contract on a printed form of the defendant for twenty-eight shares of Dr. Huhner, dated March 14th, 1923, offered in evidence by defendant, reads as follows:

“I or we subscribed for twenty-eight shares of the Globe Construction Co. stock at $10.00 per share, par value, for which I agree to pay $70.00 cash and balance $210.00 in 90 days from date, as evidenced by promissory note of even date.”

The Globe Construction Company agrees that on receipt of notice from bank that the promissory note herein referred to has been paid; that they will deliver certificate for 28 shares of their capital stock.

There is no prohibition on the contract form of verbal representations by selling agents and there is apparently no reason why stock certificates should have been delivered, unless notes were paid, but there is evidence tending to show this was occasionally done.

Plaintiff swears he was to get his twenty-five per cent out of amount first paid to take care of salesmen, but Kelly would only give him fifteen per cent to pay sub-agents and promise to pay balance later. In this he is somewhat corroborated by Kelly who swears that he never made any deinite settlement with Shelton, but was awaiting the sale of their entire stock for a final accounting.

We also agree with the trial judge in thinking that the employment of these sub-agents was approved and ratified by President Kelly, for the February advertisement of plaintiff, quoted above, and the prompt reimbursement by the defendant of plaintiff for the fifteen per cent paid the sub-agents by Kelly and the retention of Mazur in its employment after (plaintiff’s departure hardly tally with Kelly’s contention that he had nothing to do with the employment of these men, but Tather support plaintiff’s statement that Kelly was present when they were employed and gave them their instruction as to selling.

If these sub-agents were entitled to fifteen per cent as Kelly admits, then plaintiff, their supervisor and general director, was certainly entitled to something more than they were and ten per cent extra for this work does not seem exorbitant. Kelly admits this, but says he agreed personally to pay this additional ten per cent, as he owned fifty-one per cent of the stock. As he admits that all these payments were made by defendant’s checks and carried as debits in defendant’s accounts, we agree with the trial judge that the ¡preponderance of evidence is with plaintiff on this point.

Defendant seeks to show that many subscription notes were cancelled, although they were originally received as satisfactory, when makers claimed fraud, and that many were compromised and only part payment accepted. The trial judge correctly ruled that neither fraud nor 'payment had been pleaded and therefore he would not consider any testimony on these points, but would permit testimony as to cancellation of notes tp show that plaintiff had not earned what he claimed. Under this ruling Kelly testifies that various subscription notes on which plaintiff claimed commissions had been cancelled rightly by defendant because plaintiff was not to be paid until all notes were settled. In this statement President Kelly is corroborated by Secretary-Treasurer Dalgarn, who testified as follows:

“Q. Mr. Dalgarn what' connection have you with the Globe Construction Company, the defendant in this suit?
“A. I am the secretary and treasurer.
■“Q. In 1922, what was your connection?
“A. Vice-president.
“Q. Who was in active charge of the company’s affairs?
“A. Mr. E. J. Kelly, the president.
* sfc * sjs
“Q. Did you have any connection with the making of the contract between Mr. Shelton and the Globe Construction Company?”
After some colloquy Mr. Dalgarn answered “Yes”.
“Q. What connection did you have?
“A. I was called into the office and Mr. Kelly said, we have employed Mr. Shelton to sell stock for the Globe Construction Company, and recited the agreement they had.”
By the Court:
“Q. In the presence of Mr. Shelton?
“A. Yes, sir.”
By Mr. Ansley:
“Q. What was the agreement?
“A. He was to get 15% on all stock he sold and was empowered to employ as many salesmen as he wanted. I asked the question, ‘Does it mean 15% on all stock sold, or 15% on the amount paid in?’ and Mr. Kelly said he was to get 15% of the amount paid in.
“Q. Mr. Kelly, the president, and you, the vice-pre.sident, and Mr. Shelton were in conference in reference to this contract?
“A. Yes, sir.”

On the other hand, plaintiff swears that he was to be paid when notes were verified or ■ approved by the corporation and on this point he is corroborated by Robert E. Kelly, formerly a director of the company in charge of stock sales, who inserted the advertisement of August 6th, 1922, and who testified as follows:

“Q. You are sure if he sold $100.00 of stock he would get $15.00?
“A. Yes, sir, if it was a cash sale and if it was notes and the notes were all right and there was some payment on the notes or a check with the order and notes that were all right.”
By the Court:
“Q. Do you mean if accepted by the corporation?
“A. If they were verified.
“Q. How do you mean?
“A. By calling the people up and thd people said they were all right.
“Q. That is what I mean. If you were satisfied with the financial standing of tne people who gave the notes you considered the notes verified?
“A. Yes, sir.
By Mr. McGiehan:
“Q. We will consider this as an example: Suppose Mr. Dazet would buy 100 shares of stock, which was $1000.00, the salesman would bring in $250.00 in cash?
“A. Twenty-five per cent or more.
“Q. And a note for $750.00 or less and he turned that $250 over to Mr. Kelly and turned the notes over to the defendant and Mr. Kelly verified the signature by phoning the man and accepted it, would he pay the salesman 15% on that sale?
“A. T do not see any reason why he would not.
“Q. Is that the way he did it?
“A. Yes, sir.”
“Q. Why did you put in this advertisement $50.00 a week if you say the only proposition you made was 15%?
“A. You will notice it says $50.00 top guarantee. That guarantee is a guarantee to a man provided he guarantees something.
“Q. It was ¡simply a catch?
“A. Yes, purely.
“Q. You stated in answer to Mr. Ansley that Mr. Shelton was to be paid something extra for checking up and handling salesmen and other work?
“A. I understood he was to get something extra for handling promotion work on the streets and other things and also for selling stock.
“Q. And for selling stock?
“A. Yes for checking up the men and seeing the notes were sold on the square.
“Q. He did that?
“A. I presume so. When Mr. Shelton came in I was getting ready to step out.
“Q. Did not Mr. Yernes get 10% at that time extra?
“A. I knew that Mr. Vernes was working and got his money on week days and Saturday. In fact some of the men got money they should not have gotten. It was good fellowship. I did not write the checks.
“Q. You had supervision of the salesmen and they told their troubles to you?
“A. Yes, sir.
“Q. If Mr. Vernes made a sale on Thursday of $500.00 and brought in $200.00 in cash, he got 15% immediately and on Saturday he got the balance?
“A. I suppose so.
“Q. You knew they were paid?
“A. Yes, otherwise they would make a holler.
* * * *
“Q. Did Mr. Shelton succeed in getting subscriptions for Washington Avenue?”

By the Court?

“You say subscriptions. You mean signatures to petitions?”

By Mr. McGiehan:

“Yes, sir, Judge.”
“A. Washington Avenue is in three sections.
“Q. He got Washington Avenue from Coliseum to Magazine, a $23,000.00 job?
“A. I think so.”

The record contains several paid checks given plaintiff by defendant, which plaintiff contends were given in payment of his twenty-five per cent commission, and defendant contends were given as advances, but when told by the trial judge that the overwhelming percentage of check stubs referred to special stock sales and asked if these checks represented advances only why special stock sales were referred to at all, he replied: “I have no reasonable answer”.

After careful consideration and study of the .entire record, we have reached the conclusion that plaintiff is entitled to additional compensation for his work, but we do not think that he has proved his entire claim, as undoubtedly some of the subscription notes received by him or his sub-agents were cancelled with his knowledge and apparent approval. We, therefore, think substantial justice will be done by allowing the amount admitted by defendant and to be due plaintiff in the above quoted letter of March 10th, 1923, namely five hundred ninety-three and 00-100 ($593.00) dollars.

For above reasons the judgment of the lower court is, therefore, amended by reducing the amount allowed as above stated and accordingly

It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, B. E. Shelton, and against defendant, Globe Construction Company, Inc., in the sum of five hundred ninety-three and 00-100 ($593.00) dollars with interest from judicial demand, costs of this appeal to be paid by plaintiff and appellee.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9889
    Orleans
    FEDERAL SIGN SYSTEM, Appellant v. AMAVET
    (November 14, 1927. Opinion and Decree.)

      ÍSyllabus by the Oourt)

    1. Louisiana Digest — Evidence—Par. 223, 226.
    Parol testimony is not admissible to vary or contradict a written contract.
    2. Louisiana Digest — Obligations—Par. 79; Words and Phrases.
    “Unless” is a condition, “until” is a term.
    3. Louisiana Digest — Evidence—Par. 42, 261, 262.
    The failure to produce a witness who heard the verbal agreement of the parties to a contract prior to the writing of it cannot prejudice either party as the testimony of the witness was not admissible to contradict the written contract.
    4. Louisiana Digest — Obligations—Par. 76, 82, 93.
    The penal clause of a contract is the compensation agréed upon for the violation of the contract and is the law unto the parties.
    Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by Federal Sign System against Maurice Amavet.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Sol Weiss, of New Orleans, attorney for plaintiff, appellant.
    R. Weinemann, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for failure to perform a contract.

The plaintiff alleged that on May 27th, 1920, he made a written contract with the defendant for the erection and lease of an electric sign which was “not to be put up until lessee advised”; that plaintiff constructed said sign and was ready to erect and install it and to render the service contracted for; that on February 17th, 1921, plaintiff wrote to the defendant complaining of his delay to fix a time to erect the sign and advising him that unless he fixed a time for that purpose within fifteen days that plaintiff would .construe Ms silence as a renunciation of the contract and would claim the damages fixed hy it. The term of the lease was for thirty-six months, for the price of $3.50 per week. The contract provided that “upon a breach of this agreement by the lessee the company may remove the sign, wiring, and all its other property, and cut off the supply of electricity, in which event the -lessee will pay the company a sum equivalent to $7.00 for each unexpired month of the term of the contract, which sum is agreed to be the actual loss suffered hy the company by reason of such breach”. Therefore the plaintiff claimed $252.00 damages with legal interest from judicial demand.

The defendant denied all the allegations of plaintiff’s petition hut specially admitted “that said contract contains a condition that the sign was not to he put up until the lessee advised, and that, therefore, it was left absolutely optional with the lessee as to whether or not he would ever erect said sign and that that was the understanding, and defendant denies that plaintiff had any right to construct said sign, and “that it was entirely optional with him (defendant) as to whether said sign should ever be erected,” and that “plaintiff had absolutely no right in violating said contract, to construct, erect, or install said sign unless ordered by defendant,” and. that plaintiff had no right or authority to put defendant in default as the matter was absolutely optional with defendant as to whether he ever should authorize said sign to be put up and that it was perfectly optional with defendant not to put up said sign and that plaintiff had no right to put up said sign”.

There was judgment in favor of defendant rejecting plaintiffs’ demand and it has appealed.

It will be seen that plaintiff’s case depends upon the interpretation of the words written in pencil across the printed contract. “This sign is not to be put up” until lessee advises.” The defendant contends that these words “to be put up” means that the plaintiff had no right to begin to “manufacture” or to “manufacture” the sign unless he was further advised by the defendant, and that the word “until” means “unless”, or that the plaintiff had no right to manufacture the “sign” unless defendant so advised it.

Defendant attempted to prove by his testimony that such was the verbal un•derstanding at the time of the signing of the contract. Over plaintiff’s objection, the defendant testified “the man wanted me to give him the contract and not to give it to any other company, and I signed the contract understanding not to have the sign made until I wanted it. * * * I told the man not to make the sign until I advised him. I had a little better place and I intended to get the place next door to make the restaurant larger.”

“I told him I would need a bigger sign and he wrote that across the face of the contract to protect me, and I could take the sign later; * * * I have a sign on my building now. It is a different sort of a sign; it is bigger; it is a special sign made by a different company; when I signed this contract with the plaintiff, I had just a little place at the corner; now, I have a place at the corner, and also a place next door, that’s why I explained to the man when he came to me to sign the contract.”

In a letter to the defendant dated February, 1921, offered in evidence, the plaintiff writes:

“At the time the contract was accepted by our company it was our understanding that it might be necessary for us to hold the sign at our store, say for two or three weeks after same had been completed, until you could decide as to just what position on the building you wanted the sign erected.”

It is perfectly evident that all defendant’s parol testimony against and beyond what is contained in the contract sued on, and on what may have been said before, or at the time of making the contract, or since, was in violation of Article 2276 (2256) of the Civil Code, and the objection of the (plaintiff should have been sustained.

The defendant therefore remains with the words of the contract alone in their common and usual acceptation. C. C. 1946 (1941). When the words across the contract read that the sign was “not to he put up until, etc.”, they cannot he made to mean, as the defendant has testified, that it was not to be “made” or “constructed until” he wanted it, or gave the order, or “advised”.

Nor can the word “unless” be substituted for the word “until” of the contract. The two words have a different meaning. “Unless” means a reservation or option to change one’s mind provided a certain event happens, a conditional promise. “Until” means “up to a” certain time, or place or event. It is a term, not a condition. C. C. 2051 (2046). Under the clear meaning of the words of the contract, therefore, the plaintiff .was not to “put up the sign until such time as the lessee advised”.

That meant a reasonable time or term. The obligation of the plaintiff to construct and install the sign, and of the defendant to accept delivery of it, became perfect at the time of the signing of the contract. The “putting up of the sign” alone was suspended “until the lessee advised”. The word “until” did not mean or “never” if the defendant so chose, as he would have us construe the words.

It was not a conditional obligation on the part of the defendant, as we have stated above. It was an obligation with a term, C. C. 2051. Not being a condition it could not be the potestative condition contemplated by Article C. C. 2034 (2029) relied upon by defendant.

As parol testimony was not admissible “against or beyond what was contained” in the written contract, no presumption can be raised against the plaintiff for failure to produce plaintiff’s agent who witnessed the contract.

C. C. 2125 (2121). The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. Jackson and Manson vs. Hoffman, 31 La. Ann. 97; Solomon vs. Diefenthal, 46 La. Ann. 897, 15 South. 183.

In the case of Stewart, Hyde & Co. vs. Buard, 23 A. 201, the plaintiffs, cotton factors, bound themselves to make advances to the defendants, cotton planters, to an amount of $6000; and the defendants “agreed to ship to plaintiffs the entire crop of their plantation which they warranted to amount to 400 bales of cotton, and if the number fell short of that number the commission shall be paid upon the deficiency at the rate of $5 per bale, liquidated amount”.

The defendants having failed to make a crop, they were sued by the factors for $2000. The court said:

“The contract may have been rash, but it was not unlawful, nor was it without consideration.”

The factors recovered judgment for the full amount.

The total price of the lease in this case was $546. The penalty was $252. We cannot say that it was unreasonable as we are not aware of the cost of construction of the sign, nor of the other expenses incidental to performing the contract, solicitor’s commission, etc.

The defendant further contends that the plaintiff is not entitled to a judgment for the full amount of the penalty for the reason that the contract contemplated the putting up of the sign, which was not done in this case, and therefore plaintiff can recover only for actual damages suffered by him resulting from defendant’s refusal to accept the sign. The answer to that defense is that those would have been the damages fixed by law, in the absence of the penalty fixed by the contract. The penalty is the object of this suit, C. C. 1901 (1895). “Agreements legally entered into have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith.”

The defendant wilfully violated his contract, not only by refusing to accept the sign he had leased but by bargaining for another one with another company.

The judgment appealed from is therefore annulled and set aside, and it is now ordered that there be judgment condemning the defendant, Maurice Amavet, to pay to the plaintiff, the Federal Sign System (Electric), the sum of two hundred and fifty-two dollars with five per cent iper annum interest from June 16th, 1921, till paid and all costs of suit.


author: "WESTERFIELD, J.

text:
    No. 10,057
    Orleans
    STEEN v. MID-CITY LUMBER COMPANY, INC.
    (January 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Mechanics’ Privileges Par. 11.
    Act 139 of 1922, establishing a building lien in favor of contractors and others does not include sub-contractor.
    Appeal from the Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Clark Steen against Mid-City Lumber Company, Inc., et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. C. McGee, of New Orleans, attorney for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   "WESTERFIELD, J.

This is a concursus proceeding. The question for our consideration is the validity vel non of an alleged building lien claimed by the Natalby Lumber Company, Ltd. The judgment of the trial court was against the asserted lien and the claimant has appealed.

The record shows that one Clark Steen was the principal contractor, employed by the Dominican Fathers Provinciae S. S. Rosarii of Louisiana, Inc., for the purpose of erecting a church in Lakeview, this city; that the Mid-City Lumber Company contracted with Steen to furnish the lumber for the church, and that the Natalby Lumber Company sold the Mid-City Lumber Company a car of lumber for use in constructing the church valued at $735.23, for which amount a building lien is claimed under Act 139 Of 1922.

The lien was recorded in the mortgage office against the church in the name of Steen, no reference being made to the Mid-City Lumber Company, apparently in support of the effort which counsel makes in argument to show that Steen and not the Mid-City Lumber Co. was his debtor. His argument is based upon an alleged conversation between the representative of the Natalby Lumber Company and Steen in which Steen is said to have agreed to pay for the lumber if it be released to the Mid-City Lumber Co., delivery being held up because the sight draft which was attached to the bill of lading covering the shipment had not been paid. Steen denies the statement attributed to hi#i, and other elements of weakness in this contention are apparent. Counsel himself seems to recognize this fact for in his brief he says: “We, the Natalby Lumber Company, therefore take the position that as a furnisher 'of material to a sub-contractor, which material the evidence shows conclusively went into the construction of the church belonging to the Dominican Fathers, are entitled to a lien and privilege under Act 139 of 1922.”

Unfortunately, for counsel, the position he takes is opposed to the views of the Supreme Court, for in Frank vs. Waters, 162 La. 255, 110 South. 413, the contrary was expressly decided. We quote the concluding sentence of the court': “Our conclusion is that the act of 1922 does not embrace those furnishing material to a subcontractor.”

Under the circumstances, the judgment appealed from must be and it is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,177
    Orleans
    SERRENE v. DENNIS SHEEN TRANSFER, INC.
    (October 17, 1927. Opinion and Decree.)
    (February 16, 1928. Decree Supreme Court Writ Denied.)

      (Syllabus by the Court)

    1. Louisiana Digest — Negligence—Par. 1, 9, 14.
    A driver of a cotton float is guilty of negligence in unloading his float “anyway so you get it off” and when a cotton checker with his back to the float is injured by a bale of cotton thrown from the float by this method of unloading, the driver’s employer will be held liable in damages.
    (See Foster & Glassell vs. Knight Brothers, 4 La. App. 307.)
    Appeal from the Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Lawrence L. Serrene against Dennis Sheen Transfer, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gordon Boswell, of New Orleans, attorney for plaintiff, appelee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for damages, for personal injuries, in which plaintiff claims to have been injured, by being struck on the back, by a cotton bale, which, it is alleged, defendant’s employee negligently unloaded from a cotton float.

Defendant, admitting plaintiff to have been injured by the cotton bale, denies all allegations of negligence.

No plea of contributory negligence has been filed by defendant, consequently plaintiff’s negligence, vel non, is not to be considered.

But, as counsel correctly insists, the fact of plaintiff’s injury without fault on his part, by a cotton bale being unloaded by defendant, does not involve defendant’s responsibility. Franklin vs. Henderson Iron Works and Supply Co., 141 La. 726, 75 South. 661.

The only question to be determined is whether defendant’s servants were guilty of negligence in unloading the truck.

Plaintiff at the time of the accident was employed on the public wharves as a cotton checker, and it was his duty to check cotton transported to the_ wharves by defendant’s trucks, as well as other cotton similarly conveyed.

It is alleged that defendant was negligent in that the cotton bale which struck defendant was “improperly loaded and carelessly placed or loaded upon the said truck, or that, and while petitioner was standing alongside the truck, as aforedescribed, another employee of the defendant went upon the said truck, without petitioner’s knowledge, and, without any notice or warning, moved or dislodged the said bale, or both.”

There is considerable conflict in the testimony. Plaintiff and his witnesses insist that the accident was caused by a bale thrown from the truck striking him in the back. Defendant’s witnesses claim that the vibration incident to the starting of the truck’s motor caused the bale, which was on end, to fall over, striking plaintiff, or, as at' least one witness declared, the bale which struck plaintiff was leaning against the side of the truck and fell over when it moved. The undisputed facts are that two of defendant’s trucks were on the wharf unloading when a third truck arrived. In order to make room for the third truck one of the others was moved a little. Whether this movement caused the cotton bale to fair against plaintiff or whether he was struck by other bales thrown from the truck is in doubt.

However, we are convinced that the float was' improperly unloaded. If the offending bale was thrown from the truck, as claimed by plaintiff, eare should have been taken to prevent injury Jo persons who, like plaintiff, were properly in the vicinity in the discharge of their duty. The driver of the truck testified that it was his custom to unload the cotton “anyway so you get it off” and that on this particular occasion he was in a hurry to get home and that “there was so much , (cotton) around us we had to get it off the best way we could; didn’t have much room, it was the last load”.

It was the driver’s duty to see that in throwing the cotton from the truck it would not injure bystanders. Foster & Glassell vs. Knight Bros., 4 La. App. 307.

If the bale was leaning against the side of the truck when the truck was moved, the driver should have caused the bale to be moved before starting the truck, particularly as it was in close proximity to plaintiff. At least a warning should have been given. Counsel insists that no warning was necessary because plaintiff knew or should have known of the danger in standing so close to the truck. We must differ with him. In the first place, contributory negligence is not pleaded and secondly he can not be expected to anticipate the movement of the truck and assuming the bale which struck him was leaning against the side of the truck, he is not shown to have knowledge of that fact, and finally, he had his back to the truck when it was moved.

The trial judge found for plaintiff in the sum of fifteen hundred dollars, which so far as the amount is concerned does not appear to be in dispute.

For the reasons assigned the judgment appealed from is affirmed.


author: WESTERFIELD, J. JONES, J.

text:
    No. 10,036

      Orleans

    RIZZO v. NEW ORLEANS RAILWAY AND LIGHT CO.
    (February 20, 1928. Opinion and Decree.)
    (April 8, 1928. Writ refused by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 42; Evidence— Par. 48.
    When it is proven that a passenger was injured, by an instrumentality of the carrier, the presumption arises that the injury was due to the carrier’s negligence.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 42; Street and Interurban Railroads — Par. 34.
    A passenger whose arm is broken while seated in a street railway car, operated by defendant, the injury being due to a passing car, also operated by defendant, is under no obligation to prove the negligence of defendant, in order to recover damages due to her injury. The defendant in such case is presumed to be negligent, and must affirmatively establish the contributory negligence of the passenger.
    Appeal from the Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Miss Eva Rizzo against New Orleans Railway and Light Co.
    There was judgment for the defendant and the plaintiff appealed.
    Judgment reversed.
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Benjamin W. Kernan, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for damages against the local street railway arising out of an injury to a passenger.

At the time of the accident plaintiff was seated in an Esplanade Belt ear with her arm on the window sill. A car, moving in the opposite direction, and operated by the defendant company, passed the car in which defendant was seated on the side nearest to her. As this car passed she was heard to scream and discovered to be painfully injured, her arm was fractured. To adopt her own language: “I hollered and I said ‘Mama, I am hurt.’ She said, ‘What struck you?’ I said, ‘I don’t know.’ I couldn’t see at night (the accident happened at 10 p. m.). I grabbed my elbow, and I seen the bone was out of the meat, and (I) was crying and hollering that I was hurt, and the motorman and conductor told me to go to the Charity Hospital to get treated, that it was the best place for me to go.”

One of defendant’s witness, Henry Hayes, gives this description: “Well, when the both cars passed, it went ‘pie’. She hollered, ‘I am shot,’ and everybody looked towards her.” The witness evidently meant by the use of the word “pie” that there was a sharp loud noise.

The clearance between the two cars at the point of the accident is but a few inches and it is manifest that plaintiff was injured by the passing car. Indeed both sides are agreed on that point, but, beyond this, neither party has proven the cause of the accident. Both counsel have indulged in conjecture. Plaintiff’s counsel suggests that there might have been a loose bar of iron attached to a screen with which the car was equipped . which struck plaintiff as it passed, and also that the swaying motion of the cars in such close proximity may have caused some portion of the car to strike plaintiff, the defendant’s witness to whose testimony we have alluded says there was a loud noise or as he puts it “it went pie”.

Opposing counsel suggests that plaintiff must have negligently stuck her arm out of the car and. been hit by the passing car. The conductor testifies that she admitted to him, after the accident, that she did so, but this statement is contradicted by plaintiff, and she is corroborated by two other witnesses. Besides, it would have been very difficult, if not impossible, for plaintiff to get her arm out of the car in the position she was in. The car, both cars in fact, were equipped with screens, designed to prevent accidents of this kind. The screens were placed about two inches above the sill, and were eleven inches wide. It is not claimed that plaintiff put her arm through the screen but over or under it. Assuming that she could get her arm under the screen between it and the sill, a rather violent assumption, she could not do so in a sitting capacity, because of the angle of her arm with reference to the opening. She must therefore lie down on the seat to obtain the proper angle. This she would hardly do and could not do with her mother seated beside her as is testified to here. To be seated and extend her elbow over the screen, assuming that could be done, would cause her much discomfort if not pain and is altogether too improbable to believe.

Nevertheless, she was injured, and by the passing car. Defendant’s counsel insists that since there is no proof that defendant was negligent and testimony by defendant’s employees that nothing unusual occurred in the operation o.f the cars, that there can be no recovery. We might agree with him were it not for the fact that plaintiff was a passenger. The rule, with respect to a passenger, differs from that applicable to third persons because of the contractual relation. The carrier undertakes to transport the passenger in safety to his destination, to the extent that the exercise of the highest degree of practicable care will insure such safety. The instrumentalities of transportation are wholly in its control, and when, as in this case, a passenger is injured by one of those instrumentalities in the hands of its servants and operatives, the presumption, is that it was negligent and the negation of fault by its employees will not exculpate it. Under such circumstances it is for the defendant to show “what negligence and whose prevented the fulfillment of the contractual obligation”.

“It is sufficient for a passenger suing on a contract for safe passage to show that he was not set down safely at his destination to throw the burden of explanation on the carrier to prove what negligence and whose prevented the fulfillment of the contractual obligation.”
“The burden is on the carrier to establish affirmatively the contributory negligence of the passenger.”

Hopkins vs. N. O. Ry. and Light Co., 150 La. 62, 90 South. 412.

Poncet vs. So. New Orleans Light and Traction Co., 3rd La. App. 64; also 150 La. 61, 90 South. 512.

Spurlock vs. Shreveport Traction Co., 118 La. 1, 42 South. 575; McGinn vs. New Orleans Ry., 118 La. 811, 43 South. 450.

Hunt vs. Morris, 6 M. (O. S.) 681.

LeBlanc vs. Sweet, 107 La. 355, 31 South. 766.

State vs. Carro, 27 Ann. 377.

Peniston vs. C. St. L. & N. O. Ry. Co., 34 Ann. 777.

Reeves vs. New Orleans G. N. R. Co., 126 La. 513, 52 South. 681.

Casper vs. New Orleans, 121 La. 603, 46 South. 666.

139 U. S. 151; 147 N. S. 571; R. C. C. 2754.

Plaintiff was employed as a bag printer by the Bemiss Bag Co. She lost three months wages and suffered a great deal, according to her testimony, but the medical testimony concerning her injury is unsatisfactory. However, her arm appears to have been broken. We will allow eight hundred dollars.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Eva Rizzo, and against the defendant, New Orleans Railway and Light Co., in the sum of $800.00 with legal interest thereon from September 27th, 1916, and all costs.

JONES, J.

Dissenting.

In her original petition plaintiff did not aver that another car was passing her car at the time of the injury, but under order of court, she makes, upon information and belief, the conditional charge that a passing outbound car might have caused the injury. Although this tardiness shows clearly that the inclusion of the second ear as the possible cause of the accident was only an after-thought, the carrier com pletely rebutted this additional charge.

The motormen and conductors of both cars swear positively that their cars were equipped with screens ten inches high covering the lower part of the windows and with bars above the screens, that the cars were running slowly, that there was no bumping or jarring, no scraping, no broken parts; that the track was in good order, that a thorough examination of each car shortly after the accident disclosed no sign of any scratching or breaking of screen bar or side.

The fact that plaintiff says she was hurt while another car was passing does not prove that the other car caused the injury.

Mere coincidence in time does not' prove causality.

The testimony of the operators of the two cars as to safe and careful handling is confirmed by several passengers and there is no proof that any instrumentality operated,or controlled by defendant was even a remote causal factor.

The testimony of plaintiff and her witnesses as to the circumstances is vague and indefinite. In fact plaintiff first states positively twice that she was sitting with her back to the motorman, which would have put her injured arm toward the center of the car and in this statement she is confirmed by one of defendant’s witnesses who was sitting just behind her.

To support the conclusion that the carrier must prove the actual cause of the injury, the majority opinion cites two leading cases:

Hopkins vs. N. O. Railway & Light Co., 150 La. 61, 90 So. 512.

LeBlanc vs. Sweet, 107 La. 355, 31 So. 766.

In both of these cases, the specific charges of negligence, made by plaintiffs, were denied by defendant and there were definite issues o.f fact before the court, which were only decided ater the most painstaking analysis of evidence. That the decisions in these two cases were based on the weight of the evidence is shown by the fact that Chief Justice Monroe, the organ of the court in the earlier decisión, dissented in the later.

The broad and general statements of the court as to burden of proof in passenger claims were obiter dicta, because they were not necessary to the conclusion.

The law seems to me correctly stated in Haynes vs. L. R. & N. Co., 140 La. 1025, 74 So. 538, where the Supreme Court held:

“The burden, of proof is on the carrier to prove absence of negligence and not on the passenger to prove negligence where it is shown a contract of carriage has not been fulfilled.”

Unquestionably the burden of proof shifts to the carrier, when the passenger proves that an injury has occurred in one of the carrier’s vehicles, but the carrier meets that burden, when he proves absence of negligence for this, in the very nature of the case, is all that he can possibly do, when the injury happens in the middle of a crowded car, with the motorman in the front and the conductor in the bach.

The rule of res ipsa loquitur does not apply in such a case as this.

The true doctrine is well stated in the case of Saunders vs. Norfolk & W. Ry. Co., 117 S. E. 4, where the court quotes approvingly from Boucher vs. Railroad 79 Atl. 993, the following:

“The plaintiff’s right of action is based on negligence, and negligence must be shown to authorize a recovery. If the accident may have been due to other causes than the carrier’s negligence, the fact of the accident does not .authorize the inference of negligence; but, if the thing causing the injury is entirely within the control of the defendant, and in the' ordinary course no accident would result if due care were exercised, the happening of such an accident may authorize an inference of negligence. ‘The fact of any injury is not sufficient. It must be traced to the carrier. It must be shown to have proceeded from something under his control, or from some danger which, under the obligation of extraordinary care, it was his duty to anticipate and provide against.”

3 Thomp. Com. Neg. Pars. 2754-2762; Scott vs. London Docks Co., supra; 4 Wig. Ev. Par. 2509; 6 Cyc. 629. Upon the proposition the cases are now in entire accord. The inference of negligence arises, not from the fact of the injury, but from the circumstances under which it occurred. Pennsylvania R. R. vs. MacKinney, 124 Pa. 462, 17 Atl. 14, 2 L. R. A. 820, 10 Am. St. Rep. 601; Philadelphia, etc., R. R. vs. Anderson, 72 Md. 519, 20 Atl. 2, 2 L. R. A. 673, 20 Am. St. Rep. 483, and note 490; Barnowsky vs. Helson, 89 Mich, 523, 50 N. W. 989, 15 L. R. A. 33; Western Trans. Co. vs. Downer, 11 Wall, 129, 134, 20 L. Ed. 160.

See also Plumb vs. Richmond Light & R. Co., 223 N. Y. 285, 135 N. E. Rep. 504, where the court says:

“Shifting the burden of explanation or of going on with the case does not shift the burden of proof. If a satisfactory explanation is offered by the defendant the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance 6f evidence in favor of plaintiff’s contention.”

See also McGinn vs. New Orleans Ry. & Light Co., 118 La. 811, 43 So. 450, a case on all fours with the present, where the court uses the following language:

“The proposition contended for by plaintiff — that in an action of this character all that the plaintiff bringing it is required to prove is the accident, the fact that she was a passenger, and that she had not been safely placed on the ground at her destination, when the burden shifts to the defendant company to prove that the accident did not arise from any negligence on its part, or that of its agents or employees — is too broadly stated. The circumstances surrounding and connected with plaintiff’s accident were of character such as to withdraw against the defendant any ■ presumption of fault or negligence, and it should, not be held responsible.
“The rigor of the rule announced in Article 2754 of the Civil Code touching the burden of proof of carriers is to some degree relaxed in the case of damage to passengers from whsit it is in reference to things in their care.”

None of the cases quoted in the majority opinion go so far as to justify the ruling in the instant case where the defendant has made all the proof possible under the circumstances.

“Lex neminim ad vana cogit.”

For these reasons I respectfully dissent.


text:
    No. 11,039
    Orleans
    CHARITY HOSPITAL v. MEYEAUX
    (July 14, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 285.
    The Charity Hospital is a state institution, exercising public functions, within the meaning of Act 173 of 1902, exempting state boards and commissions from furnishing bonds in judicial proceedings. The exemption extends to suits by the Hospital for charges, which, under Act 126 of 1924, it is authorized to collect, under certain circumstances, for services rendered to employees covered by the compensation law.
    Appeal from the Civil District Court. Division “A.” Hon. H. C. Cage, Judge.
    Action by the Charity Hospital against Cyril Meyeaux.
    There was judgment for defendant and plaintiff appealed.
    Motion to dismiss denied.
    Emmet Alpha of New Orleans, attorney for plaintiff, appellant.
    Denegre, Leovy & Chaffe, of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

This motion is based upon the allegation that “no appeal bond has been furnished by the Charity Hospital, appellant, and that there is no warrant in law for the action of the trial judge in entering an order authorizing the said appellant to take this appeal without security”.

The appellant insists upon its right to appeal, without security, as a municipal board, exercising public functions within the meaning of Act No. 173 of 1902, reading as follows:

“That the State Board of Education, Parish or Municipal School Boards, the Drainage and Sewerage Commission of the City of New Orleans, the Board of Liquidation of the City Debt of New Orleans, the State Board of Law Examiners, the State Board of Medical Examiners; the State, Parish and Municipal Boards of Health and other state, parish and municipal boards or commissions exercising public power or administering public functions shall not be required to furnish any bond whether of appeal or otherwise in any judicial proceedings instituted either by or against said boards or commissions.”

The argument in support of the motion to dismiss is that in this particular case the Charity Hospital is not “exercising public power or administering public functions” because in this case it sues for hospital charges authorized by Act 126 of 1924 permitting such charges, under certain circumstances in connection with hospital services to employees covered by the compensation act, and therefore “when a governmental agency leaves the ordinary fields of public service and enters the arena of private profit, it can not invoke the special privileges and exemptions with which public agencies are ordinarily clothed”.

The Charity Hospital is supported almost exclusively by direct appropriation from the state treasury, the last appropriation bill carrying an item of $717,384 for maintenance. The Act of 1924 merely authorizes the Hospital in certain cases to collect the cost of treating individuals to whom compensation is due under the compensation law. Whether, in the instant case, it can collect this expense must be decided, when the case is heard on the merits. But the hospital is none the less a public institution, and it is serving the public as well in this instance as upon any other occasion. Assuming the fees sued for can be recovered, is it not in the public interest to collect them? We are told that such fees, in the yearly aggregate, will be insignificant, compared with the amount received from the state treasury. But, whether large or small, in collecting the fees, the hospital will be more or less supported, and the State of Louisiana more or less relieved of its burden. We conceive it to be the duty of the hospital to collect these charges, in cases permitted by law.

The motion to dismiss is denied.


text:
    No. 11,089
    Orleans
    CREWS v. COOGAN
    (January 2, 1928. Opinion and Decree.)

      (Syllabus T)y the Court)

    1. Louisiana Digest — Automobiles — Par. 4b, 4d.
    An automobile which enters a street intersection in which a police semaphore system of signal lights has been installed, with the green light facing him, is entitled to. continue until it clears the intersection, whether the green changes to amber and the amber to red before he completes the crossing or otherwise. Traffic, awaiting the green or crossing signal on intersecting streets must first ascertain whether the intersection is clear before starting to cross.
    Appeal from the First City Court, Division “C”. Hon. William V. Seeber, Judge.
    Action by Earl E. Crews against Frederic P. Coogan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. R. Richardson and E. Talbot, of New Orleans, attorneys for plaintiff, appellant.
    W. B. Hamlin, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit results from an intersectional collision between automobiles at Canal and Broad streets.

Plaintiff claimed $192.75 as damages and was awarded $129.75. Defendant appealed and plaintiff seeks to have the judgment increased to- the sum claimed.

There is a semaphore signal at the intersection of Canal and Broad street. Canal street is very wide and divided by a neutral ground. Traffic moving on that street from the direction of the river to the lake must use the downtown or north side, and traffic moving from the lake to the river, the uptown or south side. The following provisions of the traffic ordinance are pertinent:

“The following semaphore signals for the movement of traffic are hereby established:
“(a) Red — When shown on any traffic signal, illuminated or otherwise, shall indicate that traffic shall stop, and remain stopped as long as the red signal is shown.
“(b) Green — When shown in any traffic signal, illuminated or otherwise, shall indicate that traffic shall move in the direction of the signal, and remain in motion as long as the signal is shown.
“(c) Amber — When shown in any traffic signal, whether illuminated or otherwise, and whether connected with a warning bell or not, shall indicate that a change is about to be made in the direction of the flow of traffic. When such amber signal is shown, traffic which has not already crossed the white lines of the intersection shall stop, but traffic which is already on the intersection shall continue to move until clear of the intersection, provided pedestrians shall be privileged to cross street intersections while such amber signal is showing.”

It is admitted that plaintiff entered the intersection on the green light and was struck by defendant’s car before he had completed the crossing. Defendant contends that his car with two others, all abreast of each other, his car being nearest the sidewalk curb, were at rest on the upper or south side of Canal street, awaiting a green signal to cross the Broad street intersection from the direction of the lake towards the river, and that he started the car after the green signal appeared, the two other cars starting at the same time. He explains the fact that his car hit plaintiff while the other two did not, by the statement that his vision was obscured by the other cars being between him and the approaching automobile of plaintiff.

Whether defendant started prematurely, as seems likely, or awaited the green signal, as he claims, is immaterial. Plaintiff under the plain terms of the traffic ordinance was privileged to proceed until he had completed the crossing, ánd the traffic crossing his path, whether on the green light or not, was charged with knowledge of his possible presence in the intersection if he could not be seen.

If the green light was exposed to defendant before he crossed, the red would be exhibited to plaintiff and the remarkable situation of all three lights, green, amber and red, facing plaintiff before he could navigate the crossing. There is no evidence that these lights were improperly timed, and it must be presumed that the interval between the changes was sufficient to accomplish the purpose for which the semaphore was installed, which obviously was to permit the clearing of the intersection between the disappearance of the green and the appearance of the red lights, or during the prevalence of the amber. If, however, the time allowed was too short, it was defendant’s duty to satisfy himself that the intersection was clear before proceeding.

The judgment appealed from is affirmed.


text:
    No. 11,119
    Orleans
    ESTRADE v. MAXON
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact will be affirmed where clearly correct.
    Appeal from First City Court, Division “B”. Hon. Yal J. Stentz, Judge.
    Action by Leon E. Estrade against Rosa Maxon.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pomes & McCabe, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a plumber on a written contract covering the installation of certain plumbing in a house owned by defendant.

It is not claimed that the work was not done according to contract, nor is the amount sued for questioned. The only defense is that the contract was not signed by defendant or anyone authorized by her.

The evidece shows that defendant was out of the city and that her daughter signed her name. She had previously negotiated with plaintiff in regard to the work and according to plaintiff gave her assent to the contract which was read to her over the long-distance telephone, and expressly authorized her daughter to sign for her. A payment of $20.00 was made by the daughter at the same time.

The trial court resolved the question of fact involved in plaintiff’s favor and awarded judgment for $218.00. We see no reason to disturb the judgment which is accordingly affirmed.


text:
    No. 9976
    Orleans
    GRAFFAGNINI v. SHNAIDER
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 240.
    Where plaintiff sues on a verbal contract, alleging that defendant had agreed to buy the property occupied by him as a tenant and authorized him to have certain repairs made for the cost of which he sues, an objection to parol proof of his alleged agreement with defendant upon the ground that it would tend to contradict a written agreement between plaintiff and a third person, his landlord, was improperly maintained. The parol evidence rule only applies to writings between the parties.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Jacob J. Graffagnini against Adolph Shnaider.
    There was judgment for defendant and plaintiff appealed.
    Case remanded to admit excluded testimony.
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    H. W. Kaiser, Fred A. Wulff, Jr., of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that he is a tenant of the premises No. 2500 Iberville street, and that he made a verbal contract with the defendant, Schnaider, who had agreed to buy the property whereby he caused certain repairs to be made to the property at an expense of $1516.04 which Schnaider agreed to pay him.

He prays for judgment for the sum named.

On the trial of the case, after plaintiff had testified to the verbal agreement sued on, an objection was made by counsel and maintained by the court to further evidence tending to establish a verbal agreement, because it would tend to contradict a written document — a lease. As counsel puts it:

“I. object to that. The lease speaks for itself. No.w if Your Honor please at this time I want to interpose this objection; I object to any and all testimony that has gone before with reference to those repairs. The reason I didn’t object to it before, I wanted to see how far these gentlemen would go, but I object to any and all testimony with reference to ' repairs, because it would go in contravention of a written document, and any verbal testimony is wholly immaterial and irrelevant. The written document is the lease by and between the parties hereto and made a part of this objection.”

Counsel is in error in referring to. the lease as being “by and between the parties hereto”. The lease was between' plaintiff as lessee and one F. O. Kroll as lessor, a fact which was subsequently recognized, but it is insisted that the objection was nevertheless proper. Kroll is not. a party to the suit and was the owner of the property from whom the defendant expected to acquire it under his agreement of sale.

This ruling was clearly erroneous. The parol evidence rule, here invoked, applies only to writings between the parties.

The case must be remanded to admit the excluded testimony and it is so ordered.


text:
    No. 9,959
    Orleans
    REY v. CARRERE
    (November 14, 1927. Opinion and Decree.)
    (January 20, 1928. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Fraudulent Conveyances — Par. 132.
    Evidence creating only a suspicion against the payment of the price is insufficient to overthrow an authentic act of sale, as simulated, and divest title to real estate.
    Appeal from the Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by Mrs. Lucille S. Rey et als. against Francois Carrere.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. Kenner, of New Orleans, attorney for plaintiff, appellant.
    Ellis & Cappel, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiffs, children of Armand J. Cousin, claim to be the owners of a certain tract of land in the Parish of St. Tammany described in their petition. They allege that defendant also claims to be the owner of the land and they pray for recognition of their title.

It was admitted on the trial of the case that plaintiffs’ father, now deceased, and whose succession was accepted by plaintiffs, was the owner of the property in question, having acquired the same by purchase from Adolph Dubourg in 1868. Defendant thereupon assumed the burden of proving divestiture of Cousin’s title.

Proof was administered . establishing title to one-half of the property in a Mrs. Seymour Cousin by virtue of a judgment of the late Sixteenth Judicial 'District Court for the Parish of St. Tammany, dated January 31st, 1894. Mrs. Cousin is not a party to these proceedings; moreover, the judgment rendered is not subject to collateral attack. The trial cou?t correctly refused to permit evidence offered for the purpose of impeaching the judgment. Defendant sets up title to the other half under an act of sale from plaintiff’s father, Armand J. Cousin, to himself, dated June 21, 1895, passed before H. R. Warren, Clerk and Ex-officio Notary Public.

Plaintiffs attack this act upon the ground that it was a simulation. The evidence tended to show that after acquiring an undivided one-half defendant remained in New Orleans and permitted plaintiffs’ father to retain possession. There was also an attempt to prove that the consideration mentioned in the act ($150.00) was not paid because of defendant’s financial condition. It is established at the time that he earned only $12.00 per week and contributed to the support of members of his family. He testifies that he did pay the money out of earnings over a period of years. It was possible for him to have accumulated the money in the manner he claims however difficult it may have been. It is also quite consistent with bona fide ownership for defendant to have permitted Cousin, his vendor, to remain in possession. The price paid would indicate the property to be of only speculative value and tend to corroborate defendant’s statement that he bought as 'an investment. The taxes were paid by defendant, a circumstance which outweighs the failure to take possession, particularly since the record shows that Cousin, defendant’s vendor, subsequently married defendant’s ‘sister.

The most that can be claimed for the evidence is that it creates a suspicion, an insufficient reason for divesting title to real estate.

“Where the evidence in such ease is so slight as to create but a suspicion against the payment of the price, and to make out in favor of the heir but a doubtful case, it is too uncertain to justify the court in setting aside the sale.” Carter vs. McManus, 15 La. Ann. 641. See also Moore vs. Wartell, 39 La. Ann. 1071.

The trial court found the evidence insufficient to support plaintiff’s title and dismissed the suit. We believe that judgment was correct and it is. therefore affirmed.


text:
    No. 10,315
    Orleans
    SUCCESSION OF CHINN SUCCESSION OF ROBERTSON
    (Consolidated)
    (January 2, 1928. Opinion and Decree.)

      (.Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 493.
    Where there is no party in interest before the court opposing the relief asked for, it will be granted.
    Appeal from the Civil District Court, Division “D”. Hon. Porter Parker, judge.
    Action by Succession of Fletcher T. Chinn and Succession of Sarah Gordon Robertson, Wife of Fletcher T. Chinn. Opposition of Victoria Chinn to account of W. D. Kingston, testamentary executor of the Succession of Sarah Gordon Chinn.
    There was judgment for the defendant and the plaintiff appealed.
    Judgment reversed.
    Habans & Coleman, of New Orleans, attorneys for plaintiff, appellee.
    Terriberry, Rice & Young, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Victoria L. Chinn opposed the account of W. D. Kingston, the testamentary executor of the succession of her mother, Sarah Gordon Chinn, asking that the amount acknowledged to be due her on the account be increased from $845.68 to $1129.01. The only objection to the increase asked was made by a creditor who filed a plea of estoppel, which was maintained, and judgment rendered dismissing Victoria Chinn’s opposition.

From this judgment this appeal was taken.

No appearance was made in this court on behalf of the executor, or the seizing creditor, who has since been paid. Nor was any brief filed by appellees. There is no party in interest, presently before the court, opposing the relief asked for. Under the circumstances we will reverse the judgment appealed from and it is now ordered that the account of W. D. Kingston, testamentary executor of the Succession of Sarah Gordon King, be so amended as to Increase the sum to he paid to Victoria Chinn from the sum of $845.68 to the sum of $1129.01.


text:
    No. 10,723
    Orleans
    SCHAEFFER v. TRASCHER
    (June 20, 1927. Opinion and Decree.)
    (October 4, 1927. Writ Granted by Supreme Court.)
    (February 16, 1928. Reversed by Supreme Court.
    See 165 La. —, 115 So. 575.)

      {Syllabus by the Court)

    1. Louisiana Digest — Marriage—Par. 173, 182.
    A husband who effects a reconciliation with his wife is liable for a debt contracted by her for furniture to fit up a house for herself and her children for their separate maintenance during the pendency of a suit for separation from bed and board, when the furniture is 'of a kind and quantity commensurate with his station in life.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Joseph P. Schaeffer against Mr. and Mrs. John Trascher, Jr.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Daly & Hamlin, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for John Trascher, Jr., defendant, appellant.
   WESTERFIELD, J.

This is a suit by a furniture dealer against a husband and his wife for furniture, bought by the wife, during the pendency of a suit instituted by the wife against her husband for separation from bed and board.

From a judgment releasing the wife, and holding the husband responsible to plaintiff for the purchase price of the furniture, the husband appeals.

Mrs. Trascher, one of the defendants herein, for reasons she considered sufficient, left her husband, the other defendant, and went to live with a friend, meanwhile filing suit for separation from bed and board. While the suit was pending, or January 27, 1926, she bought a bill of furniture from plaintiff amounting to $799.50. This furniture was acquired in order to furnish a house known as 420 S. Broad street, which Mrs. Trascher rented shortly after moving to her friend’s home, because her friend could no longer accommodate her and her children. The furniture was delivered in due course and Mrs. Trascher and her children installed in the Broad street home. A rule for alimony in the separation proceedings was made absolute to the extent of allowing Mrs. Trascher $90.00 per month, which judgment her husband appealed from. On February 14, 1926, the Traschers were reconciled and Mr. Trascher divided his time between 420 S. Broad street, which was furnished with plaintiff’s furniture, and 2007 Lafayette Avenue, the former matrimonial domicile. He insists that he did not sleep in the Broad street house, but we make no distinction in his favor, or otherwise, on that account. On March 16, 1926, the separate establishments of the Trascher’s were consolidated in their former abode on Lafayette Avenue, and their interrupted conjugal relations restored to.-, normal.

In the meantime the furniture which made the Broad street residence of Mrs. Trascher habitable for herself and children had not been paid for. To the request of plaintiff’s credit man for payment Mrs. Trascher recited th'e changes which had taken place in her status, and expressed her inability to pay the bill, offering to return the furniture. The plaintiff refused to accept the furniture and suggested that Mr. Trascher might pay for it, since he had enjoyed the use of it for some time prior to the final restoration of their former establishment. Mr. Trascher declined to pay upon the ground that he had nothing to do with the purchase, which was made at a time his wife had left his home and was suing him for a separation, and that, so far as his using the furniture was concerned, he supposed his wife had rented a furnished house and was not informed to the contrary until two days before their return to Lafayette street.

Counsel for plaintiff rests his case upon Articles 119 and 120 of the Civil Code and Gosserand vs. Monteleone, 159 La. 316.

The articles of the Code referred to proclaim the mutual obligation of husband and wife to each other of fidelity, support and assistance, and establish the husband’s obligation to his wife “to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition”.

When Mrs. Trascher left Mr. Trascher she was possessed of no means whatever, and he provided her with none. She could not remain longer with her friend and must establish herself elsewhere. There is no proof that she could have obtained board elsewhere upon a basis resulting in greater economy besides she had no money to pay her board and perhaps could not have obtained credit. It is not suggested that the furniture was too expensive or extravagant for her husband’s circumstances. In fact our knowledge of the present purchasing power of money inclines us to the view that the furniture must have been very modest and simple. Mr. Trascher was worth $48,000.00 according to the inventory of the community taken in the separation suit.

It is evident that the furniture was necessary and within the means of her husband. Does the fact that Mrs. Trascher was living apart' from her husband and suing him for a separation alter the situation?

This question might at one time have been answered in the negative but," whatever the former state of our jurisprudence, recent decisions have determined the question the other way.

We refer to Gosserand vs. Monteleone, 159 La. 316, 105 South. 356. In that case an attorney sued a husband for a fee due him for services rendered the wife in a suit against the husband for separation. The court reviews the conflicting jurisprudence and concludes as follows:

“We find therefore no sound reason in law or in morals why the husband should not pay a reasonable fee to the counsel for the services rendered.”

In another part of the opinion the court says:

“The English rule which places the liability of the husband upon ‘the ground that he is hound to furnish the wife with those things which were reasonably suitable and necessary to her fortune and station in life’ to some extent supports our conclusion.”

The court then calls attention to Article 119 and Article 120 of the Code relative to the obligations of the husband for necessaries.

In the case of Daly & Hamlin vs. Trasher, No. 28,179 S. C., decided March 28th, 1927, this present defendant was held liable for services rendered and money advanced his wife by her attorneys during the pendency of her suit for separation.

If, therefore, a husband is liable for attorney’s fees due his wife’s attorney for services rendered in an effort to dissolve the community and for money advanced the wife by her attorneys upon the ground that the services and money are necessaries, 'which he must provide, there is every reason supporting his liability for furniture bought by his wife as necessary to furpish an establishment for her and her children, particularly since the quality and quantity of such furniture appear most modest and well within his station in life. There is another „ consideration. The husband in effecting a reconciliation with his wife made it impossible for her to pay, by preventing a division of the community, the only ‘source from which she could reasonably expect funds, with which to satisfy her obligations incurred in an effort to dissolve the community.

If it be objected that this view would largely increase the responsibilities of a husband, because it adds to the facilities afforded dissatisfied and disgruntled wives, making separation easier and generally disturbing the matrimonial status quo, we reply that it is the business of husbands to please their wives, and they should not have dissatisfied or disgruntled wives. Besides, marriage, like the other two epochal events, birth and death, is notoriously expensive.

For the reason assigned the judgment appealed from is affirmed.


text:
    No. 11,247
    Orleans
    AMERICAN MULTIGRAPH SALES CO. v. PEACH-BLO PRODUCTS, INC.
    (March 12, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    O'N MOTION TO DISMISS
    1. Louisiana Digest — Appeal — Par. 509; Estoppel — Par. 41, 42.
    Where plaintiff seeks to have judgment amended after signature to correct an error and be is joined by defendant in a motion to that effect, defendant will be estopped to complain of plaintiff’s subsequent effort to have tbe judgment corrected on appeal. A motion to dismiss filed by defendant upon tbe ground of estoppel by acquiescence under C. P. 567 will under tbe circumstances be denied.
    Appeal from Civil District Court, Div. “D”, Hon. Porter Parker, Judge.
    Action by American Multigrapb Sales Company against Peacb-Blo Products, Inc.
    There was judgment for defendant and plaintiff appealed.
    Motion to dismiss denied.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    L. R. Hoover, of New Orleans, attorney for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Plaintiff originally brought a personal action asking only for a monied judgment, for tbe balance alleged to be due on certain merchandise sold defendant by plaintiff. By supplemental petition a vendor’s lien was asserted and a sequestration asked and obtained.

Tbe sequestration was bonded by defendant and an answer filed. When tbe case was called for trial, no defense was made by defendant, and a judgment ordered “as prayed for”. In writing up tbe judgment tbe minute clerk followed tbe prayer of tbe original petition and consequently omitted any reference to plaintiff’s lien or tbe writ of sequestration. Tbe error was not discovered until after tbe delays for a new trial bad elapsed and an attempt made by plaintiff to execute tbe judgment, by issuing a fi fa which was returned nulla bona.

Thereafter on a joint motion, filed by counsel for plaintiff and defendant in which tbe error was recited the judgment was amended, as prayed for in tbe motion, by adding tbe words “with recognition and maintenance of vendor’s lien and (privilege on tbe property seized”.

Subsequently, and for some reason, perhaps because of tbe surety on tbe sequestration bond, tbe plaintiff, just prior to tbe expiration of tbe year, obtained an appeal from tbe original judgment. Defendant moves to dismiss tbe appeal upon tbe ground that in attempting to execute tbe judgment plaintiff acquiesced in tbe judgment and is therefore estopped under Article 567 C. P., which provides that a party against whom a judgment has been rendered cannot appeal if be acquiesces in tbe judgment by executing it voluntarily. This article has been held to apply to plaintiff in whose favor judgment has been rendered, as well as defendant, against whom tbe judgment runs. State vs. Howell, 139 La. 336.

But in the instant case whether applicable to this plaintiff, or otherwise, we will not consider at tbe instance of defendant, who through tbe same counsel admitted tbe error and asked and obtained an amendment of tbe judgment in tbe trial court. Having joined plaintiff in an effort to bave tbe judgment corrected by amendment defendant is estopped, and can not assume an inconsistent position when defendant seeks to bave it corrected by what is regarded as a sounder and safer method, appeal. Whatever effect' tbe article rf tbe Code of Practce may bave on this appeal, defendant can not assert it. Lichtain vs. Southwestern Box Co., 121 La. 176.

The motion to dismiss is denied.


author: WESTERPIELD, J.

text:
    No. 11,113
    Orleans
    CITIZENS DISCOUNT & INVESTMENT CO. v. MICHON & LATERRIERE
    (October 17, 1927. Opinion and Decree.)

      {Syllabus by the Court)
    ON MOTION TO' DISMISS
    1. Louisiana Digest — Appeal—Par. 10, 568.
    Where no appeal has been taken from a judgment of the trial court dismissing an appeal, there is nothing for the Appellate Court to consider, the appeal having been dismissed.
    Appeal from the Civil District Court, Div. “A”, Hon. Hugh C. Cage, Judge.
    Action by Citizens Discount & Investment Company against William J. Michon and Charles A. Latterriere and Michon & Latterriere.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    Edwin P. Marx, of New Orleans, attorney for plaintiff, appellee.
    Jones T. Prowell, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO DISMISS

WESTERPIELD, J.

The motion to dismiss this appeal is based upon the following allegations:

“That the bond furnished in this cause by appellants is materially defective and, in fact, no bond at all.”

It appears that a motion to dismiss was filed in the lower court and after a hearing was maintained in a judgment rendered July 22, 1927. Thereafter a devolutive appeal, (the former appeal was suspensive), was perfected. We are now concerned only with the suspensive appeal.

It is obvious that there is no suspensive

appeal before us, because such appeal was dismissed by the District Court. If counsel desired to have the action of the court in dismissing the appeal reviewed, an appeal should have been taken from the judgment dismissing the appeal. This was not done and the judgment is now final, or at least not subject' to a suspensive appeal.

In Rousseau vs. T. & P. R. R., 2nd La. App. 280, this court said: “We are of opinion that motions to dismiss appeals on such' grounds as are now raised (insufficient bond) in the instant case should be first tried and considered in the trial court, from which the appeal is taken, and that an appellate court should only consider such questions when same are presented on appeal regularly taken from a judgment granting or dismissing such motions, unless the exceptions pointed out in the Hurry case (Hurry vs. Hurry, 144 La. 877, 81 South. 378), are made to appear by record disclosures.”

Our conclusions are that the suspensive appeal can not be considered having been dismissed by the lower court and no appeal taken from that judgment.


author: WEBB, J.

text:
    No. 3130
    Second Circuit
    GUARANTY BANK & TRUST CO. v. HENDERSON
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Prescription — Par. 224, 225; Appeal — Par. 727, 738.
    Under Article 902 of the Code of Practice where a plea of prescription was filed in the trial eoúrt but not considered there, it should be considered as having been filed in the Court of Appeal and the application to remand - should be sustained.
    2. Louisiana Digest — Appeal — Par. 729, 738; Prescription — Par. 224, 225.
    Where the question of interruption of prescription requires evidence which might affect the merits of the case the court will remand the casp under Code of Practice, Article 902, for any evidence relative to the issue.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Guaranty Bank & Trust Company against M. Philip Henderson.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded for new trial.
    Hakenyos, Scott, Provosty & Staples, of Alexandria, attorneys for plaintiff, appellant.
    B. T. Dawkins, W. C. Roberts, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This suit was instituted by the Guaranty Bank & Trust Company on June 19th, 1926, against defendant, M. P. Henderson, on a ' demand note for two hundred and seventy dollars drawn by the latter at Boyce, La., on March 31st, 1921, ^payable to the order of F. D. Holt, bearing eight per cent per annum interest from date, and stipulating ten per cent as attorney’s fees, which note bears the endorsement of F. D. Holt, Neches Tie & Piling Co. and Chas. Sigler, and shows credits amounting to one hundred and ninety dollars.

Plaintiff alleged that it had acquired the note for a valuable consideration and before maturity, and prayed for judgment for the amount of the note, subject to credits shown thereon, with interest and attorney’s fees.

In answer, defendant admitted having executed the note, but denied that plaintiff was the owner of the note or acquired it before maturity, and alleged, in substance, that the note had been drawn for the accommodation of the drawee, F. D: Holt, who had negotiated it to the Bank of Boyce by pledging same for the security of a note of F. D. Holt drawn in favor of the Bank- of Boyce, and the principal note of F. D. Holt had been paid prior to the note sued upon coming into the possession of plaintiff, which acquired the assets of the Bank of Boyce and assumed all of its obligations, and that the note sued upon had been released by the payment of the principal note of F. D. Holt.

Defendant further alleged that after the payment of the principal note of F. D. Holt, thereby releasing the collateral note, Chas. Sigler, being indebted to defendant in the sum of two hundred and seventy dollars, an arrangement was had with the Bank of Boyce by which Sigler endorsed the note sued upon, with the understanding that Sigler would pay the amount of the note, possession of which would be retained by the Bank of Boyce for collection for the account of defendant.

That the payments of one hundred and ninety dollars, shown on the note, had been made by Chas. Sigler, and that the plaintiff, having assumed the obligations of the Bank of Boyce, was indebted to defendant for same with legal’ interest from date of the respective payments, and he prayed that plaintiff’s demands be rejected and for judgment against plaintiff in reconvention for the amount of the payments shown on the note.

Trial was had on June 8th, 1927, and at the conclusion of the evidence the cause was submitted, when defendant filed a plea of five years’ prescription against the note, and on June 30th, 1927, judgment was rendered rejecting plaintiff’s demands and granting judgment in favor of the defendant on the reconventional demand, from which defendant appealed.

In this court the plaintiff has filed a plea of estoppel against the demands of defendant, setting up that the defendant having filed a plea of prescription in the trial court after the cause was submitted, admitted plaintiff’s ownership of the note, and cannot claim the payments made thereon by Sigler, and in any event the cause should be remanded to permit it to show interruption of prescription.

While the plea of estoppel appears to he urged as against the reconventional demand, the basis of the plea is that the plea of prescription admits the ownership of the note by plaintiff, and that necessarily under the admission defendant could not claim the payments which had been made on the note, and the plea might be decided at this time, but the plea of prescription if maintained would defeat plaintiff’s action, even though the plaintiff should be held to be the owner of the note, and we think that plaintiff should be permitted'to offer evidence to show interruption of prescription.

If the trial court sustained the plea of prescription the cause should be remanded (Gayarre vs. Millaudon, 23 Ann. 305), but assuming that the trial court did not consider the plea of prescription, we think that it should be considered as having been filed in this court, and that the application to remand should be sustained. (Art. 902, C. P.; Joubert vs. Sampson, 49 Ann. 133, 21 So. 166; Myers vs. Lansing, 114 La. 142, 38 So. 85; Gilmore vs. Schenck, 115 La. 386, 39 So. 40.)

This question as to whether or not prescription was interrupted, may itself require the introduction of evidence which would possibly affect the merits, as showing the relation of Sigler to the parties, whether indorser, guarantor or surety, etc., and we think it would be best to remand the cause for the introduction of any evidence which may be relative to the issues presented.

It is therefore ordered that the judgment appealed from be set aside, and that the cause be remanded for a new trial, the cost of the appeal to be paid by defendant.


text:
    No. 10,882
    Orleans
    MENZEL v. SOUTHERN STEVEDORING COMPANY
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant —Par. 159.
    In ascertaining the rate of Compensation to which an employee is entitled under the Employers’ Liability Acts, when the employee at different times is engaged in different occupations and his wages vary in each occupation, the daily rate of pay in force at the time of the injury fixes the basis of the amount of compensation to which he is entitled.
    Appeal from the Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Widow Frank Menzel against Southern Stevedore Company, et al.
    There was judgment for the plaintiff and the defendant appealed.
    Judgment affirmed.
    Miss Anna McCoy & Paul Sompayrac,.of New Orleans, attorneys for plaintiff, appellee.
    Spearing & Mabry, of New Orleans, attorneys for defendant, apppellant.
   CLAIBORNE, J.

While plaintiff’s husband was engaged in working as a longshoreman for the defendant he was killed. His widow sues under the Employers’ Liability Acts. She sues the employer and the surety company.

She alleges that at the time of her husband’s death, he was earning eighty cents an hour during eight hours of the day, aggregating $6.40 per day according to which she is entitled to recover 32% per cent or $12.47 per week for 300 weeks from June 21, 1926.

For answer, the defendant, Southern Stevedoring Company, admitted that the plaintiff was the widow of the deceased and that he was employed by it in the capacity of a longshoreman, but denied all the other allegations of the petition.

The trial court found that the deceased was a longshoreman at the time of the injury which caused his death, and that he was earning eighty cents an hour for an eight-hour day or $6.40 per day or a weekly wage of $38.40, and rendered judgment for 32% per cent of this amount or $12.47 per week for 300 weeks and for $150 for funeral expenses.

The defendant, employer, has appealed.

Its contention is that during the year prior to his death the deceased had earned, under his employment as longshoreman, the total sum of $947.15 which represented a weekly wage of $18.21 and should be the basis of plaintiff’s recovery and not $38.40.

The compensation to which plaintiff is entitled is determined by Section 8 of Act 20 of 1914 as amended by Act 216 of 1924, p. 399, reading as follows:

Page 400, S. 2:

“That for injury causing death within one year after the accident weekly compensation shall be paid under this act for a. period of 300 weeks to the following persons: (A) If widow or widower alone and no children, then to such widow or widower thirty-two and one-half per cent of wages.”

Page 402, S. 3:

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury, etc.”

The defendant finds no support for the theory upon which he would base his interpretation of the words “the daily rate of pay.” The case of Dick vs. Gravel Co., 152 La. 993, 95 So. 99, to which it refers does not sustain it. The case of Wilson vs. La. Central Lumber Co., 3 La. App. 425, is apposite. In that case the plaintiff, at times, was employed in hauling, when he received $3.30 per day, and at other times as a swamper when he was paid $2.75 per day. At the time of the injury plaintiff was swamping. The Court fixed his rate of cqmpensation upon the basis of $2.75 per day. We are of the opinion that this case and the judgment herein, constitute a correct interpretation of the statute above quoted and the judgment is therefore affirmed.

The insurance company had filed an exception of nq cause of action. It does not appear that the trial court passed upon that exception; judgment was rendered against it on the merit's in solido with, the employer. The insurance company has not appealed nor has it filed any petition in this Court asking for an amendment of the judgment. But the insurance company by brief, ‘ asks that this Court pass upon the exception of no cause of action filed by it in the trial Court, relying upon the case of Veasey vs. Peters, 142 La. 1012, 77 So. 948 (1015), in which the Supreme Court decided that an. exception of no cause of action filed in the Supreme Court would be considered. There are three reasons why the exception filed in the trial Court cannot be passed upon by this Court. The first is, that the trial Court did not render judgment upon it, and this Court can only review judgments rendered by the trial Court and appealed from. Second, that having gone to trial on the merits without insisting on a prior judgment upon the exception, the appellant is presumed to have waived it. Succn. Lefort, 139 La. 61, 71 So. 215. Third, the defendant company has not filed any exception of any kind in this Court. It cannot rely upon the exception of no cause of action filed in the trial Court, which he is presumed to have waived.