text:
    No. 9907
    Orleans
    CHARLES WENAR CO. v. POKORNY AND SON, LTD.
    (January 16, 1928. Opinion and Decree.)
    (January 30, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Obligations—Par. 9, 10; Evidence — Par. 48.
    Action without words, even silence, are sometimes presumptive evidence of a contract, under circumstances that naturally imply a consent to such contract.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Charles Wenar Co. against M. Pokorny & Sons, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Herbert W. Kaiser, of New Orleans, attorney for plaintiff, appellee.
    R. B. Montgomery, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit •for breach of contract to prepare plans for remodeling showcases and .store fixtures.

The plaintiff alleged that they are equipment engineers engaged in the business of remodeling commercial buildings and installing fixtures, and for that purpose employ architects, draftsmen and engineers; that defendant owns the property, 124 St. Charles street; that plaintiff and defendant entered into a verbal agreement by which plaintiff agreed to develop plans for the improvement of the above property, for the consideration of ten per cent on all disbursements made by defendant, or in case the work was abandoned five per cent on the total amount of the lowest estimate received; that said agreement was confirmed by a letter addressed by plaintiff to defendant; that in accordance with said agreement plaintiff completed plans for the contemplated improvements and on March 21st, 1923, notified defendant thereof by letter; that by a letter of same date defendant requested- plaintiff to allow the matter to rest for the present; that on April 5th plaintiff left with defendant a perspective of said improvements, and was informed on next day that it did not consider that any agreement had been entered into between them and that the matter as regards the defendant was closed, which defendant confirmed by letter of April 7th, 1923; that the approximate cost of said improvements was $15,000 upon which plaintiff is entitled to a fee of five per cent, or $750.

The letter of March 1st referred to in the plaintiffs’ petition is in part as follows;

“M. Pokorny and Sons, Ltd.
!‘Gentlemen:
“We wish to confirm the arrangement made this day for me to proceed with developing plans and specifications for the contemplated improvements for your store at No. 124 St. Charles street. It is understood and agreed that we are to furnish you with floor plans, elevations, and drawings covering the remodeling of the front and interior store work, and are to obtain estimates from any reputable firms and manufacturers that you desire and to submit their quotations to you for disposition.
“In consideration of the above service, you agree to pay us, in addition to the moneys disbursed for your account, ten per cent on all contracts and other disbursements made for you.
“If the work is postponed or abandoned, the compensation for the work done by us is to be one-half of the percentage mentioned herein based on the total amount of the lowest estimate received.
“This is identically the same agreement as was signed by you when we did the work at the Regent Shoe Store.
(Signed) “CHARLES WENAR CO.”
“March 21st, 1923.
“Messrs. M. Pokorny and Sons.
“Gentlemen:
“Just a line to again remind you that we have all of the plans and elevations completed for your contemplated improvements, and will be pleased to see you here at your convenience.
(Signed) “CHARLES WENAR CO.”
“March 21st, 1923.
“Charles Wenar Co.
“Gentlemen:
“Answering your letter of the 21st inst.: Owing to the absence from the city of Mrs. Pokorny, we are unable to decide on the contemplated change to our store. Under the circumstances we shall allow the matter to remain for the present.
(Signed) “M. POKORNY AND SONS.”
“April 7th, 1923.
“The Charles Wenar Company.
“Gentlemen:
“Answering your communication of April 6th, would advise that we are somewhat surprised at its contents. We do not consider that we have entered into any arrangements with you whatsoever. The letter you forwarded under date of March 1st was received, and after its perusal we felt that it was drawn up in such a manner that we would not consider entering into any such arrangements, as the matter now stands, and in line with the attitude taken in your letter to us of April 6th would state that in so far as we are concerned this matter with you is closed.
(Signed) “M. POKORNY AND SONS.”

After exceptions of no cause of action and others had been overruled the defendants answered.

They denied all the allegations of plaintiff’s petition and specially denied that there was any contract or agreement under which plaintiff can claim any definite penalty; but that if it had any claim it would be on a quantum meruit; and that “plaintiffs were without legal right to claim compensation for architects’ plans, not being architects, and are violating the laws of Louisiana covering architects and especially Act 231 of 1910”.

After extended reasons, the trial judge rendered judgment for plaintiff for $37.5.

A new trial was refused and defendants appealed.

The facts of this case are that the plaintiffs are engaged in the business of remodeling commercial buildings and preparing plans for office, store, or bank fixtures, and selling the same. They call themselves and others in the same business “Equipment Engineers” The name is not material. In pursuance of their business, Clarence H. Wenar, their secretary-treasurer and general manager, solicited and obtained from the defendants in the year 1921 authority to prepare for the defendants some suggestions concerning a change of their showcases on the property, 124 St. Charles street. Before the plaintiffs had done any material work on that line, commercial depression occurred, owing to which the plaintiffs suspended all work on that building. But in the early part of the year 1923, in January or February, Wenar resumed negotiations with the defendants who authorized them to make new suggestions or sketches for new showcases and fixtures for their store, 124 St. Charles street.

The plaintiff prepared a sketch ,of the proposed changes and invited the defendants to call at his office to examine them. This the defendants did. On March 1st, 1923, Ralph P. Levey, the secretary-treasurer of the defendants, in company with Coleman E. Adler representing his wife, who is a director of the defendant company and •a part-owner of the building and an uncle 'of Levey who “acted as general adviser in all matters- pertaining to the Pokornys”, 'called -at the office of the plaintiffs and 'discussed the proposed changes to the "front of the building and to the show windows and the interior distribution and fixtures of the store. Mr. Levey carried with him several pictures of interior fixtures and decorations which he had cut out of •magazines and exhibited them to the plaintiffs as containing his ideas of suitable changes. Wenar and Jas. Drinker, draughtsman, testified that plaintiffs were then and there authorized to make plans and specifications for the proposed alterations. Levey and Adler deny this. But the fact remains that on the same day Wenar addressed to the defendants the letter dated March 1st, 1923, which is copied here-above, and which the defendants failed to .answer until April 7th, or 37 days thereafter. In the meantime the plantiffs employed H. G. Markel, architect, to examine the front of the building and to make plans for the removal of the columns to be replaced by iron columns to suit the new distribution of the front and the new showcases. They then prepared plans for all the changes in the interior and exterior. When these plans were completed about April 6th, they notified the defendants to come to their office to examine them. The defendants did not come, hut -on April 7th Levey told Wenar that “he •did not employ him to do any work for "him”:

Two questions therefore arise: 1st. Did the defendants employ the plaintiffs? and 2nd. If they did, to what compensation are the plaintiffs entitled?

I. The trial judge in his reasons for judgment states:

“I take it to be proved by the preponderance of the evidence that these dealings culminated On the 1st of March in a meeting at Which an associate of Mr. Levey was invited to" be present, and that it was the understanding of the plaintiffs’ manager, got from what passed between hinl and Mr. -Levey and Mr. Levey’s associate oh. that' occasion, that it was agreed that the plaintiff was to go on with the work on the same plan and at the same rate of compensation which they had previously used. I take it to be proved ' by the preponderance of the evidence that these parties at that time agreed to this contract/’

• A careful reading of this record of more than 150 pages has brought us to the same conclusion. It is not always necessary that a contract should he committed to writing or signed by the parties. Article C. C. 1816 provides that: “Actions without words either written or spoken are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract.” Then follow examples. C. C. 1817. C. C. 1811 (1805). The proposition as well as the assent to a contract may be express or implied. Express when evinced by .words, either written or spoken. Implied when it is manifested by actions, even .by-pilence or-^hy inaction, in. cases in which ■they can by circumstances be supposed to mean, or by legal presumption are directed 'to be considered as evidence of an assent-.

Where the curator of a succession in: forms an heir that he will build a tomb and the heir makes no objection until after the tomb is built, he must pay for it. Hisem vs. Lemel’s Curator, 19 La. 427; Percy vs. Peyroux, 5 R. 181.

We are of the opinion, as was the learned trial judge, that the ' silence of the defendants for 37 days, after receiving the letter of plaintiffs of March 1st justified the plaintiffs’ belief that the defendants understood, they did, that on that day the contract described in that letter had been made between them, and that the letter of March 1st was a confirmation thereof in accordance with custom. Des Allemands Lbr. Co. vs. Morgan City Timber Co., 117 La. 44, 41 So. 332. The defendants could not have allowed the plaintiffs to remain under the impression and to proceed with the plans during 37 days and when they were completed to deny the existence of the contract. There is a time in law when men should speak or when they will be bound by their silence.

II. The testimony is that when the equipment engineer does not get the contract to perform the work mapped out on his plans that he demands and receives a compensation for his services.

No one is presumed to work for nothing. The amount of that compensation in this case is immaterial whether it is allowed on the basis of the contract or on a quantum meruit. The trial court rendered judgment in favor of the plaintiff for $375 and the plaintiff has neither appealed nor prayed for an amendment of the judgment. The contract itself seems to have fixed the value of the plans at $750 in case the work was abandoned. The testimony as to the value of the work performed varies from $200 to $600.

The trial judge has adopted a middle figure of $375 and we think he is correct.

His judgment is therefore affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9977
    Orleans
    ARONSON v. TAYLOR
    (January 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Mortgages—Par. 190? Intervention — Par. 5.
    The sheriff is not authorized to collect from the adjudicatee of a judicial sale the amount of privileged debts which outrank the- claim of the seizing creditor, hence an intervenor, claiming a prior lien, is not entitled to participate in the proceeds of the adjudication when it appears that the proceeds are less than the sum due the seizing creditor.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Morritz Aronson against Allen B. Taylor; James Demourelle & Sons, Inc., third opponent and appellee.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    W. O. Hart; Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    Emile Pomes and Chas. J. McCabe, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Morritz Aronson, by executory process, caused a certain piece of real estate owned by Allen B. Taylor, his mortgage debtor, to be sold by the sheriff to J. A. Morales for $3250.00, a sum less by $250.00 than the principal of Aronson’s claim. The sheriff retained his costs and obtained tbe receipt of Aronson’s counsel for tbe remainder of tbe price of adjudication. It appears that tbe purchaser paid in cash tbe amount due tbe sheriff and gave tbe mortgage creditor bis note secured by mortgage on tbe property for tbe balance.

At this stage of tbe proceedings Jas. Demourelle & Sons, Inc., intervened by rule and asked to be recognized as the jiolder of a building lien superior in rank to tbe mortgage of tbe seizing creditor and that tbe sheriff be ordered to pay over to it tbe sum of $625.28 out of tbe proceeds of sale “to the exclusion of all other creditors of said property”. Among other defenses to this rule the seizing creditor pleaded tbe exception of no cause of action.

This defense tbe trial court believed ineffectual, but we are not in accord with that view.

Tbe sheriff did not and should not collect tbe amount of any prior liens upon tbe property.. As a matter of fact be received less than was due tbe mortgage creditor.

In Milliken & Farwell vs. Taft Mercantile Co., No. 9998 of our docket (not yet reported) we discussed the appropriate provisions of the’ Code -of Practice, Arts. 679, 683 and 706, and quoted from tbe leading case of Bocus vs. Hernandez, 31 La. Ann. 85, tbe following:

“Tbe sheriff is not authorized to receive from tbe purchaser of property at a judicial sale tbe amount of tbe mortgage or privilege debts which rank the claim of tbe seizing creditor, and hence tbe sureties of tbe sheriff cannot be held for tbe amount of such debts received and not accounted for by tbe sheriff.”

It follows that, if tbe sheriff not only was under no obligation to collect tbe amount of plaintiff’s claim, but, on tbe contrary, was not authorized to do so, and if, as a matter of fact, be did not collect any amount in excess of, but, on tbe contrary, less than tbe sum due tbe seizing creditor, we can not see where plaintiff in rule has any standing to complain of bis action or to párticipate in tbe proceeds which were insufficient to pay tbe seizing creditors. Whatever rights intervenor may have as against tbe purchaser of tbe property are not pertinent to this case and we express no opinion thereon.

For tbe reasons assigned tbe rule herein taken by James Demoruelle & Sons must be dismissed at its cost.


text:
    No. 11,161
    Orleans
    CHATTERS v. SPIRO
    (Feb. 24, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Interest—Par. 27, 39; Bills and Notes — Par. 53.
    Where a Notary, acting for a, mortgagee, and in order to clear tbe title, without knowledge or consent of tbe mortgagor, pays tbe principal and a year’s interest on a prior mortgage, bearing upon the property, though only four months’ interest has actually ^accrued, out of tbe avails of tbe mortgage, tbe bolder of tbe prior mortgage will be obliged to restore tbe unearned interest at tbe suit of tbe mortgagor, unless be can prove an extension of tbe mortgage note for one year, and tbe burden of proof is upon said prior mortgage bolder to establish tbe extension.

      Appeal from the First City Court, Div. “A”. Hon. W. Alexander Bahns, Judge.
    Action by Aaron B. Chatters against Louis Spiro.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. L. Hammett, of New Orleans, attorney for plaintiff, appellee.
    Edw. Spiro, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff borrowed from defendant $3500, for which he issued his promissory note secured by mortgage, payable in one year. When the note matured he paid the interest and claims to have had an agreement with his debtor to the effect that he might retire the note at' the conclusion of certain negotiations then pending, for a new mortgage upon payment of principal and interest then due. When the new mortgage was consummated, four months’ interest had accrued on the first mortgage, but the mortgagee, defendant herein, claimed that the note had been renewed for one year, and insisted upon a full year’s interest as a condition of surrendering the note. The new mortgagee, through his .notary, paid the year’s interest, out of the proceeds coming to plaintiff, in order to clear the property. This suit is for the return of eight' months’ interest paid for account of plaintiff in the manner stated.

The question presented is whether the note was extended for one year as claimed by defendant, or whether it was agreed that it should be held 'in statu quo until the conclusion of the pending negotiations.

Defendant relies entirely upon an endorsement on the note pla«ed there by his son, Edward Spiro, an attorney, who, at the time, represented both plaintiff and defendant in this and another transaction: This endorsement' purports to extend the note, but defendant has failed to take the stand, and deny the agreement testified to by plaintiff, in fact, did not testify at all. Moreover, plaintiff is not shown to have had any knowledge of the endorsement having been made on the note. Edward Spiro testified that plaintiff asked for a year’s extension, but his testimony is opposed by plaintiff, who denies the statement. The. burden of proof rests upon defendant, and it has not been sustained. This was the view of the trial court and it is ours. The judgment appealed from must be affirmed.


author: CLAIBORNE, J.

text:
    No. 9982
    Orleans
    BENEDICT v. VEITH
    (Jan. 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Surveyors and Surveys — Par. 3, 5, 9.
    In an action of boundary preference will be given to ancient lines established . by official surveyors and adopted by their successors over the surveys made by later surveyors.
    Appeal from Civil District Court, Hon. M. M. Boatner, Judge.
    ' Action by Percy S.’ Benedict against Philip G. Veith.
    There was judgment for plaintiff and defendant appealed: ..

      Judgment affirmed.
    John J. McCloskey and M. M. Irvin, of New Orleans, attorneys for plaintiff, appellee.
    Frederick G-. Veith, of New Orleans, attorney for defendant, appellant'.
   CLAIBORNE, J.

This is a suit to establish the boundary line between properties owned by plaintiff and defendant respectively.

The plaintiff alleged that by Act of P. D. Olivier, Notary, dated. April 22nd, 1916, he purchased from Miss K. L. Minor the following property:

Three lots of ground situated in the Sixth District in the square bounded by Napoleon avenue, Jena, Franklin and Saratoga streets, designated by the Nos. 18, 19 and 20 and measuring as follows: Lots Nos. 18 and 19 each 30/3"4"' front on Jena street and Samuel Park by 150'7" deep and lot No. 20 30'4"' front on Jena street and Samuel Park by 150'7" deep, forming the corner of Jena and Franklin and Samuel Park; that the defendant is the owner of the lots 16 and 17 in the same square and adjoining plaintiff’s property; that the plaintiff and the defendant have had the boundary line between their properties surveyed by Frank N. Waddill, Civil Engineer, for plaintiff, and by W. J. Seghers; Surveyor, for defendant, and that said surveyors have disagreed as to the correct location of their boundary line; that it is necessary that a judicial fixing of said boundary line be made under Articles 832 and others of the Civil Code.

Plaintiff prays for judgment fixing the boundaries, or that a third surveyor be appointed.

The defendant admitted the allegations of plaintiff’s petition and further answering averred that on November 24th, 1923, he caused his two lots 16 and 17 to' be surveyed by W. J. Seghers and that according to said survey the plaintiff herein had under fence a portion of defendant’s property; later, on February 2nd, 1924, the plaintiff caused a survey to be made by F. M. Waddill, surveyor, according to which plaintiff would be entitled to more ground that he presently had under fence; that thereafter, on March 24th, 1924, F. A. Fabacher, owner of the lot adjoining that of defendant' on the opposite side, had his property surveyed by S. E. Calongue, Civil Engineer, who concurred with the survey of defendant’s lots made by Seghers. The defendant therefore prayed for judgment in accordance with the survey made by Seghers and Calongue. On January 23rd-, 1925, there was judgment in favor of plaintiff and against the. defendant adopting the. boundary line fixed by Frank H. Wad-dill.

The defendant has appealed.

Annexed to the -transcript are the two plans or sketches made by the two surveyors, Waddill and Seghers, together with their testimony explaining the methods by which they arrived at their conclusions. They both agree as to the dimensions of the lots of the plaintiff and of the defendant. They disagree only as to the location of those lots and as to the starting points. Waddill has adopted the St. Charles Avenue stone curbing as his starting point. According to him this point has been established by city surveyors.

He says.

“In making the survey I followed street alignments from the general survey of East and West Bouligny in this vicinity which I made probably 25 years ago. At that time the territory was sparsely settled, and the surveys being made by Brosnan, Pilié, Lewis and others were to some extent conflicting, and by conferring with the others, I found that the general method and the predominating method of location was by taking St. Charles avenue as a base and taking plan or title measurements from St. Charles avenue, and in order that I might carry out this method consistently and to avoid conflict of other surveys, which is always expensive to owners, I made in a limited way a general survey, that is to say, starting from St. Charles Avenue, I measured back two blocks, located the center line of Baronne street, ran a transit line down that street, and measured over to every built-up corner. I then went two blocks further back to Rampart street doing the same thing, and so continuing as far as there were any improvements, and in that way I had the alignments on every alternate street, so that any survey I should make or would have to make in that territory would be consistent with every other survey, and I would have a starting point on one end of the block. That method I followed out in every case and I did so in this particular case. The survey for Mr. Benedict * * * shows that the Veith property is decidedly out of line with the two ends of the block.
“The situation just now is, a neighbor of Mr. Veith, on the river side, has a great deal more than his measurement, is with nearly two feet on Samuel Square, and about a foqt in the rear, and Mr. Veith’s lots are shoved over correspondingly and encroaching about that much on Mr. Benedict’s property; in other words, in my survey about 15 inches on the front and about one inch in the rear. The fence between Veith and Benedict is almost exactly right. On Jena street by my survey the fence is at an angle and by the time it reaches Samuel Square it is about 16 inches over on Mr. Benedict’s lot. * * * I went on the ground with Mr. Brosnan, who had been the City Engineer previously, and we operated in the samé way, except that we merely started from St. Charles avenue. I think I got the St. Charles avenue line from the stone curb which was set at the time on St. Charles avenue, which are still there just as they were * * * they had been set long before my recollection of New Orleans. I cannot say who the engineer was that located them. It was. one of the very old surveyors, * * * City Engineers, * * *. the square from Saratoga to Franklin should measure 308 feet and the three feet are divided among the lots equally; that is why Mr. Benedict has eleven inches more; by taking the front measurements of all the lots taken together would equal 303 feet.”

Mr. Seghers testified that he had a method of survey in these particular squares based on the. survey of East and West Bouligny; from the river back to Claiborne street; he found a sunplus between the river and St'. Charles avenue, he then tried St. Charles avenue, Carondelet, Baronne street and Dryades, and thence to a point of monument fixed by Reynolds at Napoleon avenue and Claiborne on a survey made for the Sophie. Newcomb property extending from Claiborne to Broad, and he found the' measurements to correspond with the original plan of Bouligny; according to his way of operating his plan of survey indicates the correct line separating the properties of plaintiff and defendant absolutely in accordance with the plan of Mr. Reynolds; the discrepancy between Waddill and' him is caused by the different location given by each of Franklin street; there is no discrepancy of measurements given by each of the lots of plaintiff and defendant; the lines of the curbs on St. Charles street have been changed and they are a very unreliable place to start from; he locates with reference to old buildings and old fences that have been there for years, and iron post's which have been put in accordance with surveys.

S. E. Calongue, Civil Engineer and Surveyor, testified that he made a survey of the Fabacher lots on the river side of .Veith, the defendant herein; the dividing line between Fabacher and Veith is not the same, as that indicated on the Seghers plan, there is a difference of one and a half inches; all surveys on the north side of St. Charles avenue going out Napoleon avenue, originate from the old Clarke and Meader corner on the uptown lake side of St. Charles and Napoleon avenue, and they confine themselves to the Bros-nan plan; they tried to identify the location of the corner of Jena and Franklin streets, and they did not find it correct; they confine themselves to the Brosnan plan in that section.

The defendant testified that he had built his house on his lots without having them surveyed.

It will thus be seen that the difference between the two surveyors Waddill and Calongue and the third, Seghers, arises from the fact that the former two rely upon the Brosnan plans, taking as their starting point St. Charles avenue, while the last is controlled by the Reynolds plan beginning at Claiborne street. The testimony seems to establish that the Brosnan survey was adopted officially by City Surveyors in times gone by and was the basis of gutter curbs laid down by the city. Such was the opinion of the trial Judge and a careful reading of the testimony and a study of the plans in the record lead us to the opinion that he was correct.

It is therefore ordered that the judgment be affirmed.


text:
    No. 9950
    Orleans
    BROWN v. KING
    (January 16, 1928. Opinion and Decree.)
    (February 13, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Bills and Notes— Par. 218, 233.
    The burden is on defendant to prove his defense of want of. consideration of. a note ■ signed by him. He must establish it by a preponderance of the evidence or he will fail.
    Appeal from Civil District Court. Hon. H. C. Cage, Judge.
    Action by Ruth H. Brown against Fred C. King.
    There was judgment for plaintiff and fendant appealed.
    Judgment affirmed.
    C. L. Johnson, of New Orleans, attorney for plaintiff, appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff alleged that •she was the holder of a promissory note for five hundred dollars made by Fred C. King to her order, which the defendant failed to pay.

The defendant admitted the allegations of plaintiff’s petition, but denied that he had received any consideration for the note.

Further answering he averred “that the note sued on was given to the said plaintiff without any consideration whatsoever, excepting that the said plaintiff was to hold said note against your respondent in the event of his death, as he desired that the said note should act as a claim against his estate and to be considered as a donation by him to the said plaintiff after his death, all of which was fully known to the said plaintiff. •

Judgment was rendered in favor of plaintiff and defendant has appealed.

The plaintiff, as a witness, swore that she gave the defendant five hundred dollars in money as a consideration for the note.

The defendant denied her statement, but swore on the contrary that the only consideration was the one mentioned in the answer.

The judge was of the opinion that the .burden was on the", defendant to establish his defense and that his testimony alone was not sufficient to tip the scales in his favor. He was right. Livaudais’ Heirs vs. Fon, 8 M. (A. S.) 161; Friedman & Co. vs. Haughton and Ingram, 21 La. Ann. 200; Dwyer vs. Woulfe, 39 La. Ann. 423, 1 So. 868; Kearney vs. Succession of Whitehead, 34 La. Ann. 530; Yowell, In re, 118 La. 28, 42 So. 635; Teutonia Bank & Trust Co. vs. Buhler, 137 La. 5, 68 So. 194; 1 Orl. App. 15; 12 Orl. App. 318; 1 La. Digest 86.

In a previous case between the same parties we discussed the weight of plaintiff’s testimony. No. 9951.

The defendant failed to appear in this court by brief or counsel. The trial judge decided correctly and his judgment is therefore affirmed.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    SUPREME GRAND LODGE OF THE SONS AND DAUGHTERS OF ISRAEL v. PRISCILLA GIVENS ET AL.
    (December 6, 1927. Opinion and Decree.)
    (February 5, 1928. Rehearing Refused.)
    (February 13, 1928. Writs Refused by Supreme Court.)

      (;Syllabus by the Editor)

    1. Louisiana Digest — Associations—Par. 8.
    In order for a fraternal association incorporated under Act No. 254 of 1914 to prosecute a suit, it is necessary that a majority, at least seven of the twelve incorporators, authorize the suit.
    Appeal from the District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Supreme Grand Lodge of the Sons and Daughters of Israel against Priscilla Givens et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Justin C. Daspit, of Baton Rouge, attorney for defendants, appellees.
   ELLIOTT, J.

This suit, brought in the name of .the Supreme Grand Lodge of the Sons and Daughters of Israel, by C. N. Allen, against Joshua Scott, Priscilla Givens, Emma Clark and Carey Morris, has for its object, to prevent them from exercising or attempting to exercise, appropriating or attempting to appropriate, using or attempting to use the name, authority, charter rights or privileges of the Supreme Grand Lodge of the Sons and daughters of Israel, and to prevent them from withdrawing, or attempting to withdraw any of its moneys on deposit in the Union Bank & Trust Company of Baton Rouge, or any other depository bank.

Plaintiff alleges that carrying out the fraternal and benevolent purposes for which plaintiff was organized, a constitution and by-laws were duly adopted, and it has been constantly engaged, since its organization in promoting the progress and advancement of the order, through the organization of subordinate lodges and otherwise. That said defendants, acting in the name of the Supreme Grand Lodge of the Sons and Daughters of Israel, have attempted to organize and are attempting to operate in conjunction with such parties as they can rally to their cause, a subordinate lodge, under the authority of the Supreme Grand Lodge of the Sons and Daughters of Israel, without its sanction and. in violation of its charter rights.

That under the constitution and by-laws of plaintiff, after the election of officers, it is necessary in order to complete the organization of said subordinate lodge, to obtain a charter from plaintiff, and for its officers to be installed by plaintiff’s supreme grand deputy, acting under the direction and supervision of C. N. Allen, its supreme grand shepherd.

That', instead of complying with these requirements, said defendants on the third Tuesday of February, 1927, initiated and led a revolt against plaintiff, by assuming to be an independent fraternal entity, vested with all the authority of a Supreme Grand Lodge, and refused to obtain a char"ter from plaintiff or to permit the due and necessary installation of their officers. That, in consequence thereof, 'the organization of said subordinate lodge was not completed and no authority to exist or function as such ever vested, despite which 'the' said defendants and their assistants, acting individually and jointly, have attempted and are now attempting to function as a fraternal organization in the name of the Supreme Grand Lodge of the Sons and Daughters of Israel, in virtue whereof, they have without right - appropriated plaintiff’s property and its charter rights and privileges, all in such manner as to cause plaintiff inestimable damage and harm.

. That each succeeding month, since tlje -.time .of. said revolt, to the present time, said defendants, acting as alleged, have -been holding public and private fraternal •meetings at various places in the city of Baton Rouge in the name of the Supreme Grand Lodge of ■ the Sons and Daughters .of Israel, attended by such persons whose interest and support they have been able to secure, and at which meetings and at other times and places they have appropriated and arrogated to themselves all the rights and authority of plaintiff, and have purported to function by virtue of its charter rights and privileges.

That on March 18th, 1927, the officers of plaintiff called and held a special .meeting' to which all of its members were notified to attend, and a resolution was adopted at said meeting, condemning the activities of the defendants and authorizing the institution of these proceedings and such oher steps as might be necessary to fully • protect plaintiff’s interest in the matter.

That a second resolution was at the time adopted condemning the action of Emma Clark for co-operating and conniving with the other defendants in the manner and for the purposés herein alleged, and in refusing to co-operate with plaintiff and discharge the duties of her office of supreme grand treasurer, and in view thereof, suspending her from membership in plaintiff organization, and nominating, electing and appointing O. D. Allen, with the full approval of the supreme grand shepherd in her place pending the regular election of officers as provided in plaintiff’s charter.

That a third resolution was adopted at said meeting condemning the action of the other defendants, Joshua Scott, Carey Morris and Priscilla Givens, and in view thereof suspending them from membership in. plaintiff organization.

That thereafter on March 23rd, 1927, said defendants, without pretense of right or authority, held a meeting, in which purporting to function as a Supreme Grand Lodge under plaintiff’s charter, they attempted to expel or impeach C. N. Allen as supreme grand shepherd. .

Defendants appeared and filed exceptions of misjoinder, non-joinder and lack of parties in interest, necessary to a final judgment, and no cause of action. These exceptions being overruled, they filed an answer.

In their answer they deny all the acts or wrongdoing alleged against them, and allege on their part that all their acts and proceedings were regular and legal. They charge C. N. Allen with attempting to unlawfully obtain money in plaintiff’s name for his own private use, by charging for a charter and the installation of officers.

They' denied that any constitution or bylaws for plaintiff had ever been adopted; denied that a quorum of plaintiff’s membership was present at the meeting alleged .in the petition to have been held on March I8th, 1927, and alleged that a quorum was not present.

They denied that they had been legally suspended from membership in- plaintiff organization at said meeting.

They alleged that Emma Clark was still plaintiff’s treasurer, and that the pretended election of O. D. Allen as such was illegal.

They alleged that at a meeting of plaintiff on March 29th, 1927, the said C. N. Allen was impeached and removed from the office of supreme grand shepherd, and Joshua Scott, defendant, elected in his place. That plaintiff was without right or cause of action, without right or authority to institute' ,or prosecue this suit or to stand' in judgment herein. That this suit was not authorized by a quorum of plaintiff organization, nor by a majority of its membership.

The constitution and by-laws and three resolutions alleged in the petition to have been adopted were produced and filed ■ in evidence, together with plaintiff’s charter and a certificate of the secretary of state showing that it had been duly filed in his office.

The charter shows plaintiff to be a non-trading and fraternal association incorporated under Act 254 of 1914, with twelve incorporators. It is provided in the charter that a constitution and by-laws are to be adopted for its government and that others may become members, upon complying with the constitution and by-laws on the subject.

Plaintiff’s membership is in dispute and, in addition to that, C. N. Allen and Joshua Scott both claim to be its supreme grand shepherd, and Emma Clark and O. D. Allen both claim to be its supreme grand treasurer. -

C. N. Allen and Isaac Jefferson, charter members, contend that plaintiff has no members except its twelve incorporators. That C. N. Allen is plaintiff’s supreme grand shepherd; that defendants and their associates had no power nor authority to remove him, but they claim that Emma Clark was removed from her office of supreme grand treasurer and that O. D. Allen was elected in her place.

Joshua Scott, James Biekham, Priscilla Givens, Joe Pair, Emma Clark, Robert Griffin and Carey Morris, charter members, contend that it was the intention, agreement and understanding of the members of the club, under the auspices of which plaintiff was incorporated, that the members of same were to be, and in fact are, members of plaintiff, as well as those who signed the charter. That at a meeting of plaintiff on March 23rd, 1927, C. N. Allen was impeached as supreme grand shepherd and removed from office, and Joshua Scott elected in his place.

That Emma Clark is the supreme grand treasurer of plaintiff, the removal alleged against her in the petition being illegal.

We find that it would be improper and out of place for us to consider ox act on any of the questions raised in the pleadings, except that which involves the right of the plaintiff to institute and prosecute this suit.

Defendant’s contention that no constitution or by-laws have been adopted by plaintiff is substantiated by the evidence on that subject.

It is alleged in the petition that a resolution adopted by plaintiff on March 18th, 1927, authorized this suit.

Defendants deny this arid» allege that a quorum was not present at the so-called meeting of March 18th, 1927, and that this suit was not authorized and is being conducted in plantiff’s name without authority.

On the subject of what number must be present in order to constitute a quorum, no constitution or by-laws having been adopted, we hold that at least seven of plaintiff’s twelve incorporators was necessary in order to form a quorum. See R. C. L., Yol. 19, Subject, Municipal Corporations, Sec. 187. Dillon on Municipal Corporations, Vol. 1, Secs. 277 to 288, pp. 356 to 362.

Marshall on Private Corporations, Section 355, p. 950.

Morawetz on Private Corporations, Vol. 2, Secs. 641 to 647, pp. 606 to 615.

Bacon on Benefit Societies and Life Insurance, Vol. 1, Secs. 64 and 65, pp. 126 and 127.

Jeanerette Rice Milling Co. vs. Durocher, 123 La. 160, 48 So. 780.

North La. Baptist Assn. vs. Milliken, 110 La. 1002, 35 So. 264, and Act 254 of 1914, Sec. 5.

The proof is that the alleged meeting of March 18th, 1927, was attended by only five of plaintiff’s members. It results that no meeting was held.

The plaintiff is, in fact, in court against the wishes and without the authority of seven of its incorporators.

The will of the majority of plaintiff’s membership is the will of the plaintiff.

The injunction prayed for in plaintiff’s name herein cannot be granted, because the plaintiff does not want it done.

C. N. Allen contends that his position is like that of a minority stockholder in a corporation whose property rights are infringed upon by the act of the majority, and that, under the law, any member of the plaintiff can institute a suit to prevent an infringement of charter rights.

Any member can sue to protect certain personal or property rights under a charter, but a minority member or stockholder when doing so, must sue in his own name and behalf and not in the name of the corporation, because he- does not speak for the corporation.

It is also urged that C. N. Allen as plaintiff’s supreme grand shepherd had the right to institute and prosecute this suit for the purposes alleged.

The majority of plaintiff’s charter members are against him on that subject and are opposed to these proceedings, but suppose, for the sake of argument, that he be taken for plaintiff’s supreme grand shepherd for the purposes of this suit. The argument assumes that the supreme grand shepherd is practically the plaintiff. That is not the ease. The plaintiff is distinct from its membership.

The judgment refusing the injunction herein prayed for is correct.

Judgment affirmed, plaintiff and appellant to pay the costs in both courts.


author: LECHE, J. LECHE/ J-

text:
    No. -
    First Circuit
    SCHOULTZ ET AL. v. KELLER
    (June 7, 1927. Opinion and Decree.)
    (February 15, 1928. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal — Par. 725; Petitory and Possessory Actions — Par. 29, 40.
    In a petitory action under Code of Practice, Articles 43 et seq., where all of the parties who claim possession and ownership of the property are not defendants, the court will remand the case in order that plaintiff may make all proper parties defendants.
    Appeal from the Parish of St. Tammany. Prentiss B. Carter, Judge.
    Action by Mrs. Mary Smallwood Schoultz et al. against Henry Keller.
    There was judgment for defendant and plaintiff appealed.
    Case remanded.
    Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    Victor E. Plauche, of Covington, attorney for defendant, appellee.
   LECHE, J.

Plaintiffs pray to be declared owners of a tract of land situated in the parish of St. Tammany. They allege and set forth their title, and further say that they are informed that defendant asserts his ownership thereof and that neither they nor defendant, Keller, are in possession. The action is brought under Act 38, p. 38, of 1908.

Defendant claims that he and his co-owners are in possession and that fact seems to be supported by the evidence in the record, but defendant does not say who are his co-owners. The action then must be viewed as an ordinary petitory action, subject to the rules prescribed in the Code of Practice, Arts. 43 et seq.

We have then before us a petitory action brought against only one of several persons who are in possession of and claim ownership of the property in dispute. If plaintiffs should be successful in proving their demand, it would then be impossible to decree how much or what proportion of the property they could recover as against the present defendant, and it would be impossible to decree them owners of the whole property as against claimants and possessors who are not parties to the action. In answer to this, the plaintiffs argue that they would be satisfied with a judgment solely against defendant, although void as to the other possessors or claimants to the property, who are not present or represented in this suit. Courts of justice will not knowingly render judgments that are void and of no effect and they will, ex proprio motu, notice the want of proper parties.

Art. 43 of the Code of Practice provides that the petitory action must be brought against the person who is in actual possession,’ and if brought against a farmer or lessee, the latter must - declare the name and residence of his. lessor. It sometimes happens, however, that the farmer or lessee will not declare the name and residence 'of his lessor, and that presents a situation for which the 'Code makes no provision. •The status of the present case may be assimilated to that of a lessee who does not declare the name and residence of his lessor. The Supreme Court in the case of Byrne vs. Hebert, 51 La. Ann. 548, 25 So. 586, was presented with such a situation. The court, although divided on the original hearing, unanimously held on rehearing that the judgment of the District Court should be avoided and the case remanded, With leave to the plaintiff to make proper "parties. See also, on1 the same subject, the cases of Cutno vs. Weil Bros., 127 La. 701, 53 So. 962; De Soto’s Heirs vs. Standard Oil Company, 139 La. 965, 72 So. 695.

• Under these circumstances, the judgment should be avoided and the present case should be remanded in order that the plaintiffs may make all the persons who claim possession and ownership of the property, parties defendant- to their demand in the present suit, and it is so ordered, defendant to pay costs of appeal, and all other costs to await final determination of the suit.

ON REHEARING

LECHE/ J-

Plaintiffs allege in their petition ‘‘that they own certain property .which they -are .informed and believe that Henry Keller is asserting and claiming to •be his, • and that neither they nor Keller are in possession thereof. In argument they say that their action is based upon ;Act 38, p.- 38, of 1908. In our former opinion we treated the action as petitory .in character- and- remanded the case in •order to allow plaintiffs the opportunity ,Jo- make,- proper .parties defendant.

-' 'A rehearing was thereafter granted and the case was again argued and submitted to this court.

The Act of -1908 provides specially that it may be resorted to in order to establish title to property where two or more persons claim land by recorded title and where neither of the claimants is in possession of the land so claimed. Plaintiffs do not allege that defendant claims under a recorded title, an allegation which under the terms of the statute seems to be necessary. See City of Baltimore vs. Lutcher, 135 La. 878, 66 So. -253: But pretermitting this. formality for -the reason that defendant is, in point of fact, claiming under a recorded title, viz.:' a'tax deed, plaintiff does specially charge that, neither party is in possession, when in point of fact defendant openly appears to be one of those in possession, and we thereupon treated the action as being petitory and as requiring und.er the ar,tides, of the Code of Practicp that the' other ' possessors be also made parties defendant. ■ ....

Two of plaintiffs’ witnesses testify that the land in. contest is enclosed and forms part of what is known as Keller’s pasture. The action cannot, therefore, be treated as the ’ one provided for by the statute of 1908, because that action only lies where neither party is in possession. •

When the case was argued on rehearing, plaintiffs, assuming that their action was brought under" the Act of 1908, pleaded error in our former opinion because that act says that, suit may be brought against one or all of the adverse claimants, and it was therefore not necessary that all claimants be made- defendants. That would be true if the suit were really and technically under the Act of 1908, but such is not the'- casé here, because at least one of the claimants is inr possession.

In Davidson vs. McDonald, 126 La. 539, 52 So. 758, where plaintiff was in possession, it was held that the action under Act 38 of 1908 did not lie. See also McHugh vs. Albert Hanson Lumber Company, 129 La. 681, 56 So. 636. In this case we hold the converse of that proposition to be equally true, and, that where a defendant claimant is in possession, the action will not lie.

For these reasons our original judgment is reinstated and the case is remanded.


author: JONES, J.

text:
    No. 10,046
    Orleans
    INTERSTATE ELECTRIC COMPANY v. ADAMANT PORCELAIN CO.
    (Jan. 16, 1928. Opinion and Decree.)
    (Feb. 13, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 229.
    Where both by verbal agreement and by letter defendant had insisted upon prompt inspection of its porcelain knobs and immediate return to factory, if found unsatisfactory as to quality, plaintiff’s claims for damages due to defects in quality will be dismissed where goods were never returned and specific complaints as to quality were certainly not made until months later and possibly not at all.
    2. Louisiana Digest — Sales—Par. 221.
    Claims for shortage will be allowed where two of the barrels, which had apparently never been opened, selected at random from the shipment, were counted by experts and each was found deficient in quantity.
    Appeal from Civil District Court, Div. “A”. Hon. Hugh C. Cage, Judge.
    Action by Interstate Electric Company against Adamant Porcelain Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    Lawrence M. Janin, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for Two thousand, eight hundred sixteen and 26/100 ($2,816.26) Dollars brought by a wholesale distributor of electrical supplies against the Adamant Porcelain Company, a manufacturer of electrical porcelain, for defective goods and shortages in three shipments of electrical porcelain made by the latter company to it. An original and two supplemental and amended petitions were filed by the plaintiff. The original petition was filed hurriedly in order to seize by attachment certain funds belonging to the defendant, which is a foreign corporation, before they could be sent out of the jurisdiction of the Court.

The first supplemental petition contained a complete specification of plaintiff’s claim, but did not give the exact nature of the defects in defendant’s goods which were complained of. An exception of vagueness and indefiniteness having been filed, plaintiff again amended its petition and described the nature of the defects in detail.

Defendant’s answer denied the existence of the shortages and also denied that the goods delivered were of defective character, and set up a small reconventional demand in the sum of One Hundred Seventy-six and 07/100 ($176.07) Dollars, representing the balance due by the plaintiff on a later invoice. Judgement was rendered in favor of the defendant, dismissing plaintiff’s suit, except as to an admitted item of Eleven and 68/100 ($11-68) Dollars, and recognizing defendant’s demand in reconvention. Prom that judgment plaintiff prosecutes this appeal.

The various items of damage relied upon by plaintiff' are contained in Paragraph 2 of its first supplemental and amended petition, being sub-sections “C” to “J”, both inclusive.

Plaintiff was acting as the agent and distributor of respondent in the distribution of it's products in the Southern States. The record shows that a number of orders were placed by plaintiff with respondent during the year 1920 for various kinds of electrical porcelain, which was delivered to plaintiff packed in barrels. A complaint was made by plaintiff and a representative of respondent came to New Orleans to investigate the matter and his visit resulted in a credit being allowed to plaintiff for about One Thousand ($1,000.00) Dollars. This was in the latter part of the year 1920 and, at that time, plaintiff had already placed with respondent three additional orders. The manager of defendant company testifies (and this testimony, which is uncontradicted, is corroborated by later developments) that an essential condition of this adjustment was the filling of the orders then on hand because the president of the plaintiff company thought that' defendant might quit them as soon as this adjustment was made. It was further agreed that plaintiff could return porcelain if it was not satisfactory. These orders were filled in the early part of the year 1921, one invoice for Three Thousand Nine Hundred Pour and 74/100 ($3,904.74) Dollars being dated January 15th, one for Three Thousand, Seven Hundred Porty-four and 94/100 ($3,744.94) Dollars, dated January 31st, and one for Three Thousand Eighty-two and 47/100 ($3,082.47) Dollars, dated May 26th. The plaintiff has settled with the defendant in full for all three of these shipments.

The reconventional demand, the validity of which was recognized by plaintiff in its first amended and supplemental petition, represented a small invoice received in July. The plaintiff gave to respondent on March 2nd, two notes in payment of the January invoices, maturing in sixty and ninety days, which notes were paid, and the May invoice was apparently paid at once in cash.

The principal items of damage relied upon by plaintiff are for shortages and defective quality of goods involved in the January shipments. These shipments, which consisted almost entirely of porcelain knobs, were received by plaintiff in closed barrels, the invoice of January 15th being contained in ninety-four barrels, and that of January 31st in ninety barrels. These barrels, each of which was supposed to contain five thousand tops and five thousand bottoms, were stored away unpacked to await resale. No examination was made at that time of the contents of the barrels, as plaintiff was engaged almost exclusively in the wholesale business and would resell the goods in lots of two or three, or more, barrels, without ever unpacking them.

Moreover, at the time that the January shipments were received, plaintiff had on hand considerable stock of porcelain and, hence, did not make any sales of the goods contained in these shipments until a considerable time after their receipt.

It is, therefore, in evidence, that the January shipments were not inspected upon their receipt and that they were stored away for some length, of time in closed barrels to await future sales.

Plaintiff’s president testifies that he began to complain by letter about the quality of these January shipments of porcelain as soon as he received complaints from his customers in various localities, but the record contains only two of plaintiff’s letters about the subject and neither of them refers specifically to these January shipments. On'March 23rd, 1921, plaintiff wrote defendant, quoting a letter of the Holt Electric Company of Florida complaining about certain porcelain knobs, and again on June 22nd, 1921, plaintiff wrote enclosing two Nailit Knobs taken at random from last shipment of defendant, (which had been made on May 26th, 1921), one of which was represented as being all right and the other as being defective. Defendant’s manager testifies that he at once had the Holt Electric Company return the knobs of which they complained, allowing proper credits therefor, and later sold these knobs to other customers without complaint, as he found by inspection, when they were returned to the factory, that the knobs were O'. K. Both he and the president of defendant company testify emphatically and repeatedly that the knobs were manufactured, inspected, weighed and shipped with unusual care on account of recent trouble with plaintiff company; that they never received any complaints from plaintiff about the January shipments and that the complaint as to the shipment of May 26th in the letter of June 22nd, 1921, was trivial and was promptly settled satisfactorily.

Both of the letters above referred to were offered in evidence by defendant, which also offered various other letters, and answered the interrogatories in great detail and apparently with care and precision.

Plaintiff’s president explains his inability to offer letters, showing complaints by stating that almost all his entire correspondence file on the matter had been lost and that he only had left one or two letters, which had been given his attorney for suit.

Moreover, ninety-five per cent of the claim is based on shortage and defects in the Old Code Split knobs and in the New Code Split knobs and there was no claim for defects in the Nailit knobs.

Mr. Reid, Secretary-Treasurer and General Manager of defendant company, testified in part as. follows:

“Again, the ‘last porcelain shipped’ was that shipped May 26th and reference to all the letters written after that date will show that their complaints referred to the May 26th shipment. A letter from them to us. dated November 4th, 1921, again referred only to ‘recent orders’.
“As heretofore testified by me in this deposition, when I made agreement with Mr. Stern, it was agreed that if there was any material shipped to them which was unsatisfactory they could return it and in our letter to the Interstate Electric Company, under date of May 31st, 1921, which letter was placed in an envelope addressed to the Interstate Electric Company", New Orleans, La., a two-cent stamp was placed on the envelope and the same was deposited in the Post Office at East Liverpool, Ohio, and a true copy of said letter is hereto attached and marked Exhibit I.
“We wrote plaintiff as follows: ‘We are in receipt of your communication of the 26th relative to porcelain and beg to advise, that porcelain in car going forward to you at present time is of good commercial quality, nevertheless, we would thank you to investigate this porcelain on its arrival, and should it not meet with your expectations, have same returned to the factory, and at the same time advise us, in what way the porcelain does not meet with your requirements, as it is our desire to furnish our patrons with what they want, if at all possible.’
“The recent shipment referred to by Interstate Electric Company in its letter to us May 2'6th, 1921, was recent shipments by us to customers of plaintiff on plaintiff’s order, such as the shipment to Holt Electric Company of Jacksonville, Fla.
“They never returned to us any part of the May 26th shipment, or of any shipment which they claim is defective. Our letter of August 8th, 1921, copy of which is hereto attached marked ‘Exhibit J.’ and the original of which was placed in an envelope, addressed to Interstate Electric Company, New Orleans, La., and deposited with a two-cent .postage stamp on the envelope, in the Post Office at East Liverpool, Ohio, by me, reminds the plaintiff that I told Mr. Stern to inspect and reconsign such goods as would not meet with his approval and that I had requested their Birmingham Branch to return the goods which they claimed were defective.
“I also call attention to the letter of the plaintiff to our Company dated October 10th, 1921, hereto attached, marked ‘Exhibit K’, in which the plaintiff says that Mr. Reid promised if we had any more trouble with porcelain that we could return it; also there are other letters from the plaintiff to the defendant which say. practically the same thing.
“After these shipments of January 15th and January 31st were made, the plaintiff wrote us under date of February '14th, 1921, that busihess conditions were very bad in the South and that they were unable to pay our bills and requested us to take their notes for the same, but made no complaint as to the quality of the goods shipped in January. (Said letter is hereto attached, marked ‘Exhibit L’.)
“Under date of February 17th, we wrote the plaintiff that we would accept the notes. The notes not being sent, we again under date of February 26th, 1921, wrote them a letter reminding them that they had not sent the notes. (A copy of said letter to them is hereto attached, marked ‘Exhibit L.’)
“Each of these letters were placed in an envelope addressed to Interstate Electric Company, a two-cent stamp was placed on each envelope and each of the letters were deposited by me in the Post Office at East Liverpool, Ohio.
“Invoices for these goods which we sent to the plaintiff specified that all complaints must be made within ten days from receipt of shipment.
“The plaintiff continued to give us orders up until the Fall of 1921, or later; until in December we became disgusted and wrote them that we would cease business relations with him. Said letter was placed in an envelope, addressed to Interstate Electric Company, New Orleans, La., and by me deposited in the Post Office at East Liverpool, Ohio, with a two-cent postage stamp thereon. (Á copy of said letter is hereto attached, marked ‘Exhibit P’.)”

When questioned as to why his company had not returned the porcelain as soon as the defects were ascertained, plaintiff’s president answered that they had then settled for it and that they feared defendant’s credit.

Mr. Peach, President of the defendant company, who came here from Ohio to be present at the trial, after testifying to his long experience in all the various grades of porcelain manufacture, and as to the unusual care with which these January shipments had been manufactured, weighed, inspected and shipped, swore that his company had never had any complaints as to the January shipments and as to the financial condition of his company, he said, “We were organized in 1915 and Dun and Bradstreet rate us from Seventy-five Thousand Dollars to One Hundred Thous- and Dollars and we are dealing with the largest companies in the country. On the Jast appraisal the Cleveland Appraisal Company appraised our mills and machinery and other things which make up our assets over Two Hundred Fifty Thousand Dollars and if Mr. Stern wanted his refund he could have gotten it if he was entitled to it.”

When asked about a complaint to the Federal Trade Commission, made by plaintiff company, on the ground of short shipments, he answered: “In February, 1922, a gentleman came, who was connected with the government' at Washington, but it was not for any shortage, but it was that we were discriminating against the Electric Company by not selling them porcelain, and we opened our files and called his attention to the letter of December 8th wherein we refused to ship them on account of our unpleasant relations and after looking it over he said we were justified in not selling them any more.

Plaintiff to prove poor quality, introduced Mr. Paul Hogan of the Electrical Supply Company, who testified that his company had had trouble with some of the knobs bought from the January shipment and had to. take some of them hack from one of his customers, but he also testified that they had later bought a car load of similar knobs from defendant which had proved entirely satisfactory.

The testimony of Mr. Wellman of the Eire Prevention Bureau, another of ¡plaintiff’s witnesses as to defective quality, is so involved and contradictory that it' has little probative value and the testimony of plaintiff’s officers and employees on the same point is certainly equalled, if not outweighed, by the testimony of similar persons identified with defendant.

Plaintiff withdrew at the trial one item amounting to Five Hundred Twenty-three and 00/100 ($523.00) Dollars of its claim and produced as a witness to bad quality only one local contractor, although one of their employees testified that several other local contractors had been dissatisfied with the knobs.

We have, therefore, reached the conclusion that plaintiff has failed to make his case certain as to defects in quality. Moreover, we agree with the trial judge in thinking that it is now estopped by the failure to exercise its right to return the shipments promptly, so that defendant might have sold them to other customers as it did the Holt Electric Company shipment, for Mr. Reid, the Manager, had written on May 31st in confirmation of his verbal agreement to the same effect, especially requesting prompt inspection and return to the factory of all unsatisfactory articles.

During the trial the judge appointed an expert to count three of the barrels of knobs, which were still on hand along with, many others, in the warehouse of the plaintiff company. This expert, in the presence of the presidents of both companies, counted two barrels, finding in one a shortage of 11.1% and in the other a shortage of 6.24%, making an average shortage in the two barrels of 8.65%.

Defendant’s only attempted explanation of this shortage is a possible pilfering, but as all parties agree that the barrels had apparently never been opened, we are obliged to conclude that there must have been an average shortage in each of the January shipments of 8.65%. No estoppel could apply to this shortage, because if the knobs weren’t placed in the barrels originally, they could not have been sold to anybody else even if they had been promptly returned to the factory. The total of the January shipments is Seven Thousand, Six Hundred Fifty-nine and .68/100 ($7,659.68) Dollars and 8.65% of this amount is Six Hundred Sixty-two and 56/100 ($662.56) Dollars, from which must he deducted the sum of One Hundred Sixty-five and 39/100 ($165.39) Dollars, an amount' admittedly due defendant by plaintiff. See Box Co. vs. Independence Veneer Co., 163 La. 86, 111 South. 608.

It is, therefore, ordered, adjudged and decreed that there be judgment in favor of plaintiff, Interstate Electric Company, and against defendant, Adamant Porcelain Company, in the full sum of Four Hundred Ninety-seven and 17/100 ($497.17) Dollars, with legal interest' thereon from judicial demand, and with recognition of plaintiff’s writ of attachment up to that amount.


text:
    No. 10,443
    Orleans
    THIEL v. SHIFF
    (February 27, 1928. Opinion and Decree.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Damages—Par. 103, 104.
    Where the plaintiff, a watchman, has remained in the Charity Hospital four days, and in his home in bed one week, and was unable to work for 82 days, for which, however, he was paid in full, and has suffered during that time in consequence of injuries inflicted upon him by defendant while driving his truck in the exercise of his occupation as a furniture dealer, a judgment for $389.14 will be held sufficient.
    2. Louisiana Digest — Damages—Par. 56, 57.
    The financial ability of a defendant to respond in damages must be considered in the assessment of the amount thereof.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    ■ Action by Joseph Thiel against Joseph Shiff, appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    John A. Meunier, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The defendant was driving a truck upon which was loaded an iron bed.

The legs of the bed protruded about 18 inches from the sides of the truck. He drove the truck along the road of the Industrial Canal Bridge.

Plaintiff was standing on the sidewalk adjoining the road. As the defendant drove past the plaintiff the front leg of the iron bed protruding from the side of the truck came in contact with plaintiff, knocked him down and injured him. Hence this suit. The negligence and fault of the defendant are clearly proven and there is no doubt of his liability for his fault and the damage caused by him. The trial court rendered judgment in favor of plaintiff for $500. The defendant has appealed, and the plaintiff has asked for an increase of the judgment.

The damage suffered by the plaintiff is stated by his attorney in his brief as follows: He was injured on April 1st and was unable to work until June 22nd. He was earning $100 a month. He was paid his full wages by his employer less $110.86. Therefore that sum represents his actual loss, and $389.14 the amount allowed him for his suffering. The plaintiff remained in the Charity Hospital four days, in bed at his home one week, and visited the Charity Hospital during two months; it does not appear how many times; during all that time he suffered from his ribs and from a bruise mark on his cheek; on his left side near his heart he had a black and blue bruise mark about three inches square; no bones broken, no permanent injury; five months after the accident he still suffered pain in his chest when he coughed.

The defendant is driver of an automobile truck and has been for nine years, and is also a furniture dealer by occupation. In estimating the amount of damages to which plaintiff is entitled the ability of defendant to pay must be taken in consideration. Board of Control vs. McRoyes, 48 La. Ann. 1061, 20 So. 182; Loyacano vs. Jurgens, 50 La. Ann. 444, 23 So. 717; Payne vs. Morgan’s La. & Tex. R. & S. S. Co., 38 La. Ann. 164; Daly vs. Kiel, 106 La. 170, 30 So. 254; Means vs. Ross, 106 La. 175, 30 So. 300; Cognevich, In re, 124 La. 420, 50 So. 439; Jackson vs. Briede, 156 La. 573, 100 So. 722; Jacobs vs. Treyhan, 156 La. 585, 100 So. 726.

We see no reason to increase the amount of the -judgment. Vining vs. Lock, Moore & Co., Ltd., 1 La. App. 200; Jane Hampton and Husband vs. La. & N. W. R. R. Co. 2 La. App. 171; Brugier vs. Todd Bros. Auto Co., 2 La. App. 741; Becker vs. Ill. Cent. R. R. Co., 2 La. App. 745; Grier vs. Hamilton, 3 La. App. 120; Davis vs. Dixon, 5 La. App. 344; Hight vs. Casanas, 6 La. App. 30; Board of Com’rs of Caddo Levee Dist. vs. Glassel, 120 La. 400, 45 So. 370; La. Grove vs. City of New Orleans, 114 La. 253, 85 So. 160; Allen vs. Town of Minden, 127 La. 403, 53 So. 666; Simmonds vs. Southern Rifle Club, 52 La. Ann. 1114, 27 So. 656; Plescia vs. Le Roy, 148 La. 316, 86 So. 824; Cuneo vs. Joseph Ariatti, 154 La. 609, 97 So. 878; Shelton vs. Masur, 157 La. 621, 102 So. 813.


text:
    No. 11,243
    Orleans
    BREENAN v. CAMPBELL, Appellant
    (January 30, 1928. Opinion and Decree.)

      {Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 318, 319.
    An order of appeal is without effect unless the appeal bond is filed within the time within which an appeal can be taken.
    2. Louisiana Digest — Appeal—Par. 318, 319, 325, 326.
    In the absence of such timely filing the Court will dismiss the appeal on its own motion.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by B. F. Breenan against Miss Mona Campbell.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    Arthur Leopold, of New Orleans, attorney for plaintiff, appellee.
    H. C. Huckabee, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff is a real estate broker. He sued for a commission and on November 3, 1927, obtained a judgment by default against the defendant for $196. The judgment was signed the same day.

The defendant' was cited at domicile; notice of judgment was served upon her also at domicile on November 4, 1927. On November 15th she applied for a new trial which was refused for coming too late. On the same day she applied for and obtained an order for an appeal, and filed a bond of $300 on November 22, 1927.

In this Court the plaintiff and appellee moves to dismiss the appeal on the ground that defendant did not file the appeal bond until November 22, 1927, more than ten days, excluding Sundays, haying -elapsed from the date of the rendition and signing of said judgment and service of notice on defendant.

Act 128 of 1921, page 382, regulating the practice in the City Courts of the City of New Orleans under Section 90 of the Constitution of 1921, provides that:

“Appeals shall be allowed, and be returnable to the Court of Appeals, within ten days, exclusive of Sundays, from the rendition of judgment on giving bond according tq law, in a sum exceeding by one half the amount of money judgments, in case of suspensive appeal, and in a sum to be fixed by the judge in case of devolutive appeal and other than money judgments.”

. This language means not only that .the application for the appeal must be made within ten days, but also that the bond required by law must be filed within the same delay. This has been the jurisprudence applicable to appeals from judgments rendered by District Courts. In the case of Lafayette vs. Farr, 162 La. 385, (387) 110 So. 624, the Court said:

“The obtaining of an order of appeal within the time prescribed is not availing without the bond required by the order of appeal. It is not necessary that the citation to answer the appeal shall be served within the time prescribed by law for taking an appeal, but the order of appeal, being subject to the condition that the appellant shall furnish a bond for the amount either fixed in the order or required by law, remains in abeyance and without effect' until the bond is filed. Therefore an appeal is not deemed taken within the time prescribed by law for taking an appeal unless the bond required by the order of appeal is filed within the time prescribed.” Quoting 17 lines of authorities."

The Court proceeds to decide that following the jurisprudence established in Untereiner vs. Miller, 29 La. Ann. 435, they must notice the absence of the timely filing of the bond and “dismiss the appeal on the Court’s own motion.”


text:
    No. 10,188
    Orleans
    WRIGHT v. PETTY
    (October 3, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Evidence—Par. 342.
    Where circumstantial evidence is not conclusive but leaves no other hypothesis it will be considered sufficient.
    2. Louisiana Digest — Evidence—Par. 351.
    Proof beyond a reasonable doubt is not required in civil cases; a preponderance of evidence determines issues of fact.
    3. Louisiana Digest — Evidence—Par. 337, 340, 351.
    Physical facts will not under all circumstances outweigh the testimony of a number of witnesses to the contrary.
    4. Louisiana Digest — Parent and Child— Par. 12.
    Where a boy is shot upon the street by another hoy, the father of the boy who did the shooting will be liable for the injury inflicted upon the boy who was shot.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Walter W. Wright, etc., against A. T. Petty.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    John D. Nix, Jr., of New Orleans, attorney for plaintiff, appellant.
    Alexis Brian, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The circumstantial evidence in this case is so strong that it compels me to the irresistible conclusion that it was a shot fired by Howard Petty from a rifle in his hands that struck Charles D. Wright in the eye, and that, therefore, Charles D. Wright is entitled to a judgment against Howard Petty’s father, A. T. Petty, the defendant in this case.

The facts are short and simple. Howard Petty, 14 years of age, held in his hands an air rifle loaded bith B.B. shots, and stood on the lower side of Eleonore street near the river side corner of Prytania street; near him was a boy, Prank Young, 9 years old; Prank borrowed the rifle and fired one shot at a post across the street; Howard then took back his rifle and said to Prank: “Watch me hit the other post,” and he aimed at a post upon the same side of the street upon which he stood driven some feet nearer the river upon the sidewalk near the street, and fired; just then a boy, Charles Wright, upon a bicycle running along Eleonore street, between Perrier and Prytania, in the direction of St. Charles, uttered a scream, and raising his hands from his wheel to his eyes, fell to the ground; his right eye had been violently struck by some hard substance and painfully injured. He was 'helped to his feet by a girl companion, Julia Harrell, 14 years old, and taken to the -home of an oculist, Young. Charles Wright is the main plaintiff in this ease. He sues the father of Howard, charging him with having fired the shot that struck his eye. Who else could have hurled that missile that struck plaintiff’s eye? There was no other rifle in that block or near there, nor was there anyone throwing stones, nor were there any stones on that street. Eleonore street is paved with asphalt from Coliseum to St. Charles. Perrier street is graveled, but it does not appear that any gravel was thrown from that street to Eleonore. Charles had come down into Eleonore street with other bicycle riders of his own age or younger, but they had come down Coliseum street and not Perrier. Besides Charles was hurt after he had passed Perrier street, and he and his companions were driving out St. Charles street turning their backs to Coliseum street and not likely to receive a gravel in the eye from that direction. It is also likely that the gravel would have been found at the place of the accident, but none was seen. The only defense is that the rifle fired by Howard carried, or sent a B.B. shot, only one hundred and twenty feet, while Charles was further off from Howard at the time he fired.

The test of the carrying capacity of Howard’s rifle was made in the water in the lakes at Audubon Park calculating the distance from the muzzle of the rifle to the spot where the shot fell. But Howard fired in a street, and his shot fell, not into water in which it immediately sank, but upon an asphalt pavement where it bounded off and speeded further.

But even the distance between Howard when he fired and Charles when he was struck is left in doubt; the only witnesses to that fact are four children: Howard the defendant, 14 years of age; Julia Harrell, a companion of Howard’s, who was “coming to court on every occasion with Howard and Mr. Petty,” Prank Young, 9 years of age, Tommy Lewis, and Byron Edwards, 8 years of age.

Their testimony is conflicting, and not reliable.

They each differ on the question of distances. Mrs. W. W. Wright testified as follows:

“Q. Mrs. Wright, will you please tell the court whether Miss Harrell told you who shot Charles?
“A. She did. She said that Howard Petty shot Charles, and her sister said she might get into trouble by telling Mrs. Wright that; she told me it might have been accidental, but' she told me that Howard Petty shot Charles Wright.”

Miss Harrell denies the statement. It remains a question of credibility.

This case is not without a precedent. In the ease of Simmons vs. Southern Rifle Club, 52 La. Ann. 1114, 27 So. 656, the members of the defendant club had been practicing rifle shooting. A child was wounded. The court said:

“Where the evidence excludes every other reasonable hypothesis than that the ball which struck the person injured was fired from the club grounds, by members or guests engaged in target practice, such person is entitled to recover from the club.
“Where evidence is not conclusive but leaves no other hypothesis, it will be considered sufficient.” 10 Orl. App. 284; 13 Orl. App. 374; No. 7784 id.; 1 Starke 434.
“While it does not follow because a fire occurs after an engine has passed, that the one happening is necessarily the consequence of the other, yet, where a fire occurs the ignition of which is explicable by the proximity of an engine, capable, through negligence of emitting sparks and cinders, and upon no other theory which finds any support in the facts, it is unnecessary, in order to entitle the owner of the burned property to recover that he should have followed the sparks or cinders from the engine to the property and watched the progress of ignition.” Castille vs. Cormier, 144 La. 640, 81 So. 210; Rousseau vs. T. and P. R. R., 4 La. App. 697; Buechner vs. City of New Orleans, 112 La. 603, 36 So. 603.
“It is laid down as a rule that evidence:
“1st. That the fire started up immediately or very soon after the passing of the train;
“2nd. That there was no fire on the premises or vicinity of the premises before; and
“3rd. That there was no apparent cause for the fire, is sufficient to warrant an inference of fact that the fire was emitted from the railway company’s passing engine.” Lemann Co. vs. Texas & Pac. Ry. Co., 128 La. 1089, 55 So. 684; Tortorice vs. Yazoo & M. V. R. Co., 142 La. 232-233, 76 So. 620; Thomason vs. Kansas City Southern R. Co., 122 La. 995, 48 So. 432; Brady vs. Jay, 111 La. 1074, 36 So. 132; Meyer vs. Vicksburg, S. & P. R. Co., 41 La. Ann. 640, 6 So. 218; 91 U. S. 471; 23 C. J. 48 S. 1792; 3 N. S. 142; 10 Orl. App. 284; Rousseau vs. T. & P. Ry. Co., et al., 4 La. App. 697; 13 Orl. App. 374.

There was an attempt made in those cases also to prove that the sparks could not go to a distance of 50 to 150 feet from the smokestack where the buildings burnt were situated, and that the spark arresters were in perfect condition.

Plaintiff need not make his case certain; all that the law requires of him is “to prove his claim with reasonable certainty and by preponderance • of the evidence”. Rose vs. Shaw, 144 La. 571, 80 So. 727; 23 C. J. 12 S. 1745.

Proof beyond a reasonable doubt is not required in civil eases; preponderance of evidence justifies a judgment.

“The plaintiffs have substantially met the burden of proof, which was upon them to show the loss sustained, making their case fairly certain; they are not to be defeated simply because there remains room for doubt, even reasonable doubt; a preponderance of evidence determines issues of fact in civil cases.” Dunn vs. Springfield Fire & Ins. Co., 109 La. 521, 33 So. 585; Rose vs. Shaw, 144 La. 571, 80 So. 727; 23 C. J. 12 S. 1745.
“Physical facts of the nature of those pleaded by plaintiff shown in part by testimony will not, under the rules of evidence, outweigh the testimony of a number of witnesses to the contrary of the' theory upon these physical facts.” McMichael vs. I. C. R. R. Co., 110 La. 19, 34 So. 110.

For these reasons, we think the judgment should be reversed and that there should be judgment in favor of plaintiff for substantial damages.

Dr. M. M. Meyer for plaintiff testified that he treated the plaintiff from December 28th to March 8th, a period of three months; his vision at present was not affected with glasses; without glasses it was; it required glasses to bring it to the vision of the other eye; he could not say whether he would have to wear glasses all his life, although there is a permanent change which will last as long as he lives; the tear in the curtain of the eye is there and will always remain; a wound in the curtain of the eye is always a cause of much pain; an eye that has been injured is never as good as one that is uninjured; his charges for professional services were $150.

Dr. Z. T. Young for the defendant said the plaintiff came to his house immediately after the accident; he did not make any examination then, but told the boy to keep his eye covered and to go home and get his parents’ permission to treat him; the next time he saw him was on March 28th when he examined him; the right eye was injured; his vision in that eye was 20-30 plus 3 and on the left eye a little better 20-20; he was wearing glasses to correct his vision “plus 75 sphere on both eyes”, the same on both eyes which give him a normal vision 20-20; he had a little rip or detachment of the iris in the lower intersector in the structure known as the lumbus which is the junction of the spera and cornea; “an expert would notice the little separation but as far as his vision is concerned I cannot see that it has affected his vision”; assuming that the boy had an error of refraction before the injury, he has not been damaged as far as his vision is concerned; the eye is not normal as before the accident; he has a five per cent off vision; there is evidence of the separation of the iris fibre and there is also distortion of that pupil; when the iris has been punctured, the ends do not heal but remain open; the fibres of the eye are torn and are completely separated and that leaves an aperture; there is a necessity for the boy to wear glasses; the treatment given was of the highest order and the results were excellent; if the boy had the left eye covered he would not see as well with his right eye; he sees five per cent out of the right eye.

The injured boy testified that when his eye was stung “it hurt like the devil” and he “fell on the curb”; he never suffered with his eyes before; he went back to school four months afterwards; during that time he went to Doctor Meyer’s every day; he cannot see out of that eye now as he used to see.

We conclude from the foregoing that the plaintiff was painfully injured, that his eye was damaged, his vision affected to a certain extent, and that he will be under the necessity of wearing glasses for an indefinite period of time.

On the authority of Marionneaux vs. Brugier, 35 La. Ann. 13; Mullins vs. Blaise, 37 La. Ann. 92, and Sutton vs. Champagne, 141 La. 469, we hold the defendant liable in damages in the sum of one thousand and fifty dollars.

It is therefore ordered that the judgment herein be reversed and set aside and it is now ordered that the defendant, Albert Tracey Petty, be condemned to pay to the plaintiff, Walter W. Wright, individually, the sum of one hundred and fifty dollars, and to said plaintiff, for the use and benefit of his minor son, Charles D. Wright, the further sum of nine hundred dollars, with five per cent per annum interest upon both sums from February 19th, 1925, till paid, and all costs of this suit, tlie whole subject to the conditions required by Article C. C. 3350.

I agree with the trial judge in his reason for judgment to the effect that the proof establishes that the rifle was incapable of carrying the distance which separated the children at the time of the accident (as that distance is fixed by the preponderance of the evidence), and ” I therefore respectfully dissent.

W. CATESBY JONES.


text:
    No. 11,193
    Orleans
    ITEM CO., LTD., Appellant, v. PAN AMERICAN CIGAR CO., INC.
    (November 28, 1927. Opinion and Decree.)
    (December 12, 1927. Opinion and Decree on Rehearing.)
    (January 16, 1928. Rehearing Refused.)
    (March 13, 1928. Decree Supreme Court Writ Granted.)
    (June 5, 1928. Decree Supreme Court Writ Reversed.)
    (See South. Rep. -; La. Rep. -.)

      (Syllabus by the Gourt)
    1. Louisiana Digest — Courts—Par. 12.
    Want of jurisdiction, ratione materiae, cannot be waived, nor consent give jurisdiction.
    2. Louisiana Digest — Courts—Par. 89.
    The city courts of New Orleans have no jurisdiction to entertain an opposition filed in the City Court by one claiming the ownership of property worth more than one hundred dollars seized as the property of the defendant.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action by the Item Co., Ltd., against the Pan American Cigar Co., Inc.
    There was judgment for defendant and the plaintiff appealed.
    Judgment annulled hut on rehearing case reassigned for argument on the merits.
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    Weiss, Yarrut & Stich, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

The intervenor claims the ownership of the property seized under a fi fa issued against the defendant.

The facts are as follows:

The plaintiff alleged that from November 1st, 1926, to May 31st, 1927, it did certain advertising for the defendant according to the itemized account annexed to the petition amounting to the sum of $224.54, upon which the defendant has paid $50, leaving a balance due of $174.56 for which it prays judgment. ■

The citation was addressed to “Pan American Cigar Co. Inc.” and was served on “Miss A. Young, bookkeeper, all other officers absent at time of service”.

Judgment by default was entered August 26th for $174.56 against 'the “Pan American Cigar Co., Inc.”

Notice of judgment addressed to “Pan American Cigar Co., Inc.,” was served August 26th, 1927, on the “bookkeeper, Miss H. Young, no other officers being present at the time service was made”.

On August 27th, 1927, the defendant, the Pan American Cigar Company, Inc., applied for a new trial on the ground that a fi fa had issued on the same day that the judgment was rendered and property seized, while under C. P. 1085, amended by Act 102 of 1898, the fi fa was “permissible only three days after service of notice of judgment”.

The rule for a new trial was dismissed.

On September 13th, 1927, Arnold Falk filed an intervention in which he alleged that on September 6th he had been appointed receiver of the “Pan American Cigars, Inc.”; that on August 26th, 1927, judgment had been rendered against the Pan American Cigar Company, Inc.; that the plaintiff issued a fi , fa under said judgment by virtue of which the constable seized the property of the Pan American Cigars, Inc., “consisting of one safe, back fixtures, six desks, )two cabinet files, one lot of cigars and one cash register”; all of the value of $300; that those articles are not the property of the “Pan American Cigar Company, Inc.”, defendant in the suit and the debtor, but are owned by the intervenor herein, the “Pan American Cigars, Inc.”, a separate and distinct corporation, incorporated by Act of George P. Eberle, Notary, dated January 3rd/ 1927, while the Pan American Cigar Company, Inc., was incorporated by Act of E. M. Cahn, Notary, dated November 18th, 1920.

Intervenor further alleged that in case this court should decide that the judgment herein is against the Pan American Cigars, Inc., and that the property above described is subject to be seized under it, then intervenor alleges that the fi fa issued thereunder is illegal for the following reasons:

I. That the fi fa issued on the same day as the signing of the judgment and before the expiration of the three days allowed for an application for a new trial.

II. That the fi fa issued before the expiration of the delays allowed for a suspensive appeal during which a receiver was appointéd to intervenor, the “Pan American Cigars, Inc.”

III.That it is to the interest oi£ the Pan American Cigars, Inc., that its property should be released, otherwise it will be sold by the constable at a sacrifice.

Intervenor prayed for judgment decreeing the property hereinabove described to be the property of the Pan American Cigars, Inc., A. Falk, Receiver, and decreeing the said receiver, in his said capacity, entitled to its possession forthwith.

Arnold Falk made affidavit that all the facts contained in his petition were true and correct.

The plaintiff, the Item Co., excepted to the jurisdiction of the court, and filed a general denial to intervenor’s petition.

After trial judgment was rendered in favor of intervenor forever enjoining the execution of the fi fa against the property above mentioned. From this judgment the Item Co. has appealed.

The exception to the jurisdiction of the First City Court must be maintained. Want of jurisdiction ratione materiae cannot be waived nor consent give jurisdiction, 2 La. Dig. 425. Paragraph three of Section 91 of Article YII of the Cdnstitution, p. 65, provides:

“Said court (City Court) shall also have jurisdiction concurrently with the Civil District Court of all suits for moneyed demands above one hundred dollars and not exceeding three hundred dollars exclusive of interest.”

Arnold Falk, receiver and intervenor, as such, made affidavit in his petition that the property claimed hy the “Pan American Cigars, Inc.” was “valued at the sum of $300”. As a witness he swore that it was worth “about $230”.

George M. Gay, the deputy constable who made the seizure, swore that the approximate value of the property was “three or four hundred dollars”.

There are two reasons why the City Court had no jurisdiction of this ease. The first is that the property claimed and in dispute is worth more than one hundred dollars, the utmost limit of its general jurisdiction fixed by Section 91; and the second is that intervenor’s suit is not one for a “moneyed demand” but for ownership of property illegally seized as the property of the defendant in the suit. Shiff & Co. vs. Carprete, 14 La. Ann. 801; Hagan vs. Hart, 6 Rob. 427; No. 7179 Orl. App.; Tessier Dig. 60.

It is therefore ordered that the judgment appealed from be set aside and annulled and intervenor’s petition be dismissed for want of jurisdiction of the City Court, intervenor to pay costs in both courts.

ON REHEARING

When this court reversed the judgment appealed from herein on the ground of want of jurisdiction of the City Court it had overlooked Act 293 of 1926 proposing an amendment to Section 91 of Article VII of the Constitution of the State, adopted November 2nd, 1926, which has since been called to our attention.

Considering that this amendment confers upon said city courts “jurisdiction concurrently with the Civil District Court of all interventions or réconventional demands, irrespective of the amount involved,” which was the subject of the judgment appealed from.

It is ordered, ex proprio motu, that our judgment herein be reversed and annulled and that this case be reassigned for argument upon the merits. Flash, Lewis & Co. vs. Schwabacker & Co., 32 Ann. 356; Gay vs. Herbert, 44 Ann. 301, 10 So. 775.