text:
    No. 3513
    Second Circuit
    JOHNSON v. BEEBE
    (January 31, 1930. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    T. A. Carter, of New Orleans, attorney for defendant, appellant.
   WEBB, J.

Plaintiff instituted this action to recover judgment against defendant for an alleged balance due on the price of certain hewn timbers, piles and cross-ties, alleged to have been sold and delivered to defendant.

Plaintiff annexed to his petition an itemized statement showing quantity of timbers sold and credits of amounts paid and merchandise purchased by plaintiff from defendant, leaving a balance due of $210.88, and on trial additional credits, amounting to $44.80, were allowed, and judgment rendered in favor of plaintiff for $166.08, from which judgment defendant appeals.

The additional credits for which allowance was made consisted of the following items: Elastic, 25 cents; account Dave Johnson, $5.50; cloth, 80 cents; groceries, $10; shoes, $2.75; and check of date 4/11/25, $25 — which credits appear from the books of plaintiff, which were filed in evidence by him, but the plaintiff complains that the statement filed by him shows a patent error of $22 against him in the aggregate of the credits, and that the court should have allowed him judgment for $188.08, while defendant urges that the evidence failed to establish that the quantity of timbers was as shown on the account, and also that plaintiff did not offer any evidence in support of three debit items, to-wlt: 6 No. 3 cypress ties at 60 cents each, $3.60; 6 No. 4 cypress ties at 70 cents each, $4.20; and 23 No. 5 cypress ties at 80 cents each, $18.40 — aggregating $26.20. And further that the evidence established that defendant had paid plaintiff, $45 in cash, for which an additional credit should have been allowed.

The parties do not appear to have kept an accurate account of their transactions, and the statements of the accounts presented by them are in conflict, and each of them offered evidence in conflict with their respective claims.. But from our review of the record we find that the additional credit of $44.80 was properly allowed, and that plaintiff failed to offer any evidence in support of the three debit items shown on his statement, aggregating $26.20, for which a deduction should be made; that the evidence established that plaintiff had been paid $45 in cash, for which defendant should be credited; and that there is a patent error of $22 in the statement filed by plaintiff, for which allowance should be made. We find the plaintiff should have had judgment for $106.80 instead of $166.08.

It is therefore ordered that the judgment appealed from be amended by reducing the amount of the judgment from $166.08 to $106.88, and as thus amended the judgment is affirmed. Cost of appeal to be paid by plaintiff.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3149
    Second Circuit
    SHUSHAN BROS. & CO., INC., v. VILENSKY
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)

      M. W. Feist, of Shreveport, attorney for plaintiff, appellant.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, a wholesale dealer in dry goods, through one of its salesmen, obtained on or about April 16, 1926, an order from defendant for merchandise, amounting to $699.65.

A shipment amounting to $99 was made under the order on June 14, 1926, and, on receipt of same, defendant, after examining the goods, returned the shipment to plaintiff, and wrote plaintiff, advising it ¡that the goods were not of the quality which he had ordered, and stating that, if the balance of the order would be the same, for plaintiff to cancel the order. On receipt of defendant’s letter, plaintiff replied, stating that the goods shipped were as ordered by defendant, and that it was going to ship the goods ordered by the defendant, and defendant then wrote plaintiff to cancel the order, and that he would not accept any shipments thereunder.

In reply, plaintiff advised defendant that, as an accommodation to him, and in order to avoid any unnecessary correspondence, it would take back the shipment which had been returned by defendant, but that it would not cancel the order. There was not any further correspondence between the parties until about August 10, 1926, when plaintiff, being advised by the railroad company that a shipment which it had made to defendant on August 5, 1926, had been refused, wrote defendant urging that he accept the shipment, and that it expected to hold him under the contract, to which defendant replied, referring plain•tiff to his letter, in which he had advised it that he had canceled the order, and would not accept any shipment thereon.

Plaintiff then ordered the shipment returned to it, and defendant was advised that, in order to minimize the damage, plaintiff would sell the merchandise, included in the shipment of date August 5th, and that which had not been shipped, for the account of defendant, and thereupon all of the merchandise ordered, with the exception of the articles included in the shipment of June 14th, was sold at private sale at a price which was $300.65 less than the contract price; and "the present suit was instituted to recover judgment against defendant for that amount.

Defendant denied that he was indebted to plaintiff in any amount, and, while admitting that an order for merchandise had been returned to plaintiff, he pleaded that the contract had been breached by plaintiff in making the shipment of date June 14th of goods which were not of the quality purchased, and, further, that plaintiff had not offered to furnish all of the goods ordered, and alleged that he had been damaged, and set up a reconventional demand, in support of which there was not any evidence offered.

On trial, plaintiff’s demands were rejected, and it appeals; and the only questions presented here are whether or not the plaintiff breached the contract and gave defendant the right to cancel, and if not, whether or not the evidence was sufficient to warrant any recovery of damages, and we considered the questions pre sented in the order stated.

The original order for the merchandise was not offered in evidence, and a copy of the order was introduced, which shows that the order comprehended a number of articles at a fixed price, the aggregate, $699.65; but neither the instrument nor the evidence shows when the merchandise was to be shipped or the terms or period of payment, and the record indicates it' was understood that the merchandise would not be shipped at one time, but that it would all be shipped prior to the fall season. But, conceding that the contract was not divisible, and the refusal of the plaintiff to ship any part of the merchandise would have been a breach of the contract, we do not think the evidence established that there was any refusal by plaintiff to ship any part of the merchandise.

The correspondence between the parties should be considered from a practical point of view. ' Conceding that the merchandise shipped on June 14th was not of the quality ordered, the evidence, as stated, does not show that it was understood that any part of the goods would be shipped on that date, nor does it indicate that defendant at that time was i,n need of the goods; and, unless it may be said that, when the plaintiff consented to the shipment being returned, it should be implied that it refused to make any other shipment of the merchandise which was comprised m that shipment, plaintiff should not be held to have breached the contract.

Certainly plaintiff did not expressly refuse to comply with its- engagement, and, as we read the correspondence, it clearly shows that plaintiff was, in view of the attitude of defendant, willing to cancel the order to a limited extent, and there is nothing in the record to indicate that defendant thought to the contrary, and we do not think that defendant has shown any right to cancel the order as a whole, and the only question remaining to be considered is whether or not the evidence established that plaintiff had sustained any damage by reason of the refusal of defendant to comply with his agreement.

It is argued here that the plaintiff, having based his claim for damages on the difference between the contract price and the market price as fixed by the sale, cannot recover. It being urged that plaintiff was entitled only to damages equal to the profits which he would have realized .had he been permitted to carry out his contract, and that there is not any evidence as to what his profits would have been. Defendant cites Hart vs. Tremont Lumber Co., 131 La. 847, 60 So. 368, in support of the position.

The question considered in that case related to the measure of damages for the breach of a contract for hauling . timber, and is not applicable to the present case. The measure of damages for the breach of an executory contract of sale of movables by the buyer is the difference between the contract price and the market price (H. T. Cottam & Co. vs. Moises, 149 La. 305, 88 So. 916, and decisions cited; Mutual Rice Co. vs. Star Bottling Works, 163 La. 159, 111 So. 661, and decisions cited), and the authorities cited also show that the method pursued by the plaintiff in order to ascertain the market price is well recognized in this state.

And we are of the opinion that judgment should have been rendered in favor of plaintiff for the amount claimed. It is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff, Shushan Bros. & Co., Inc., have and recover judgment against defendant, D. L. Vilensky, in the sum of $300.65 from judicial demand, and all costs of suit.


author: JANVIER, J. WESTEREIELD, J.

text:
    No. 11,544
    Orleans
    THE TEXAS COMPANY v. MATTISON ET AL.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Borah, Himel & Bloch, of Franklin, attorneys for plaintiff, appellee.
    Julius Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

The Texas Company sues for the return of $1,250 claimed to have been deposited with Mattison, a real estate agent, one of the defendants, as 10 per cent of the purchase price of certain property which the Texas Company desired to purchase for the erection of an automobile filling station.

The other defendants, Cristina and Russell, are sureties in the sum of $5,000 each on the real estate agent’s and broker’s bond of Mattison.

So far as Mattison is concerned, there was no defense worthy of consideration, and he has not appealed from the judgment rendered solidarily against him and his two sureties.

Several defenses have been interposed by the sureties. Two of them — one solely a question of fact and the other solely a question of law — have required considerable consideration.

The sureties contend that, even if it be conceded that the money which was paid by the Texas Company to Mattison was a deposit made with a real estate agent, there is no authority in law for a real estate agent to receive and accept a deposit, and that thus, in receiving a deposit, a real estate agent acts not in his capacity as such, but i,n his individual capacity, and that therefore his sureties are not liable, since they, in signing his bond, agreed to indemnify persons who deal with him against losses resulting from his acts as a real estate agent, but not against losses resulting from his individual misdoings.

While there has been called to our attention no case in support of this contention, we assume that it is based on the many decisions as to the liability of sureties on notarial bonds. Brown vs. Schmidt, 7 La. Ann. 349; Lescouzeve vs. Ducatel, 18 La. Ann. 470; Monrose vs. Brocard, 20 La. Ann. 78; Schmitt vs. Drouet, 42 La. Ann. 1064, 8 So. 396, 21 Am. St. Rep. 408; Stork vs. American Surety Co., 109 La. 713, 33 So. 742; Nolan vs. Labatut, 117 La. 431, 41 So. 713; Harz vs. Gowland, 126 La. 674, 52 So. 986; Lacour vs. National Surety Co., 147 La. 586, 85 So. 600, 18 A. L. R. 1295.

It is quite' true that, in all of the above cases, the court held that a surety is liable only for an act committed by the principal within the line of his duties and not for losses resulting from acts done in some other capacity than that which is protected by the bond, and it is equally true that, i,n those cases, the Supreme Court held that it is no part of the official duties of a notary public to receive money from one person to be delivered to another, or to be applied by the notary to the payment of some obligation, and that therefore a surety on a notarial bond is not liable for the misappropriation or misapplication of such money.

We are unable to see, however, that those cases are helpful in determining the question before us now, because here we .are not concerned with whether or not it is a part of the duty of a notary public to receive money, but solely with whether or not it is a part of the duty of a real estate agent to do so.

Counsel for the sureties argues that the statute under which the bond was given, to-wit, Act No. 236 of 1920, defines the duties of real estate agents or brokers and that, since that act does not In specific terms include among those duties the receiving of deposits, it necessarily follows that to receive deposits is not one of the official duties of such agent or broker.

A careful reading of the act discloses that such a duty, to-wit, the receipt of deposits, is not specifically set forth among the duties of an agent.

But the main purpose of the act was to recognize the existence of and control the operations of such agents or brokers. What is an agent? Webster says that an agent is “one who acts for, or in the place of, another.” If an agent is one who acts for another, his duties are to do what the other might do if acting for himself, and the limit within which he may act is the authority given him by the principal, and his bondsman is liable, provided the act which he is authorized to do is such an act as is ordinarily done in the conduct of that particular, kind of agency. The act .does state that a real estate agent or broker is one who buys or sells, or negotiates for the purchase or sale of real estate for another. Surely, if that other were acting for liimself, he could receive a deposit or earnest money or a payment on account of the purchase price. If that other, the principal, instead of acting for himself employs a real estate agent to act for him, he thus authorizes the real estate agent to do any and all things necessary and'customary to carry out the purposes for which he was employed. It is very evident, then, since the owner could himself have received the payment on account of the purchase price, it would not be contrary to custom, nor without the range of the contemplation of the surety, that the owner should authorize the agent to receive it for him. It appears quite evident that Mattison was employed by the Texas Company to negotiate for it and in its name for the purchase of the desired property. His authority was fixed and limited in the contract. He was to negotiate for the purchase of the property for not more than $12,500, and he was to advise the Texas Company if the property could be purchased for this price, in which event the Texas Company agreed to turn over to Mattison $1,250 to be applied on account of the purchase price. It was certainly within the contemplated duties of Mattison as a real estate agent that, in such case, he would receive a deposit from his principal and would pay it over to the prospective vendor or the agent of the prospective vendor. Therefore, in receiving the $1,250 from tlie Texas Company, Mattison was plainly acting within the scope of his duties as a real estate agent within the contemplation of the statute in question. It necessarily follows that, since he did not return the deposit and did not pay it over to the person to whom it should have gone had the deal been consummated, his sureties are liable. Furthermore, while we have been unable to find any case in which our Supreme Court, after a consideration of the question, has decided that a real estate agent is authorized by the statute to receive deposits, there are many cases in which the Supreme Court has recognized the existence of the custom, notably Maloney vs. Aschaffenburg, 143 La. 509, 78 So. 761, in which the court said:

“Where a broker is employed to sell property and closes an agreement for its sale, he becomes agent of both the seller and the purchaser; and where, as a result of such agreement, the purchaser deposits with him 10 per cent, of the amount of the purchase price, the seller may not sue the broker to recover such deposit, without properly impleading the purchaser and making him a party to such suit.”

This brings us to a discussion of the question of fact raised by one of the defenses of the sureties. In the above discussion of the. question of law, we have assumed the facts to be, as we are quite convinced they were, that Mattison was employed as an agent to buy the property, and that the contract was not made with him as the owner of the property with the view that the purchase was to be made from him as principal.

Mattison and his sureties contend that he was not employed as an agent, but that the Texas Company sought him out and negotiated with him for the purchase from him of the property in question. The truth is that Mattison did not own the property, and that he was a regularly licensed and bonded real estate agent. But, contend the defendants, there is nothing illegal in a person’s contracting to sell something he does not own; his obligation being either to purchase the thing in question and then turn it over to the person to whom he has contracted to sell it, or to make good in damages such loss as may be sustained by his inability to carry out his contract of sale. This may be true as a matter of fact in the ordinary case, but it should he borne in mind that here the Texas Company was dealing, as we have stated, with a licensed and bonded real estate agent, and under such circumstances it was the plain duty of the real estate agent to unequivocally advise the Texas Company that he did not own the property, but that he would attempt to buy it, and, if he could, to turn it over to them and keep for himself such profit as he might make. Denson vs. Stewart et al., 15 La. Ann. 456; Harvey vs. Pohlmann, No. 8125 Court of Appeal, Parish of Orleans, decided April 10, 1922 (Teissier’s Oris. App., Digest, p. 31). It is true that the offer, which was contained in one of Mattison’s own printed forms, did not, in the address to him, contain the word “agent,” but in the body of the document it was stated that the Texas Company, in the event of acceptance of the offer, was to deposit with “Mattison, agent,’’ the sum of $1,250, and in view of this fact, we fail to see how it can now be contended that Mattison was acting not as agent for the owner, nor as agent for the Texas Company, but as a principal who intended to buy the property and turn it over at a profit. The other documents in the record show conclusively that Mattison intended to purchase the property for a price that was only a little more than half of wha.t the Texas Company offered to pay, and to then turn it over to them at a substantial profit.

The fact that the original contract was not attached to the petition, and that plaintiff could not produce it, was explained by the statement of plaintiff’s officials that it had never been sent to them by Mattison. No effort was made to show that the original contract was not identical with the copy which has been introduced, and, in view of the positive evidence that the copy was identical with the original, we do not see that defendants have suffered any harm by reason of the substitution of the copy. Even if the Texas Company is incorrect and the originals were sent them, and have been lost by them, there is no question, according to them and to Mattison, that the copy is a true copy of the original.

The contention of the sureties that the case should have been dismissed on an exception of no cause of action appears to us to be without merit. It is based on the theory that the petition shows that the Texas Company dealt with Mattison as principal and not as agent. Since we have come to the conclusion that the petition, wlfen read in connection with the contract, shows that he was employed as agent, it necessarily follows that the exception of no cause of action was properly overruled. To sum the matter up, we are of the opinion that Mattison was employed as a real estate agent by the Texas Company and in his said capacity was given the sum of $1,250 to be used by him in binding the sale which he was to contract in behalf of the Texas Company, and we are further of the opinion that the receipt of such a deposit is within the scope of the duties of a real estate agent within the contemplation of Act No. 236 of 1920.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellants.

WESTEREIELD, J.

(dissenting). The bond sued on in this case is statutory. The duties of a real estate agent are defined in the statute. They do not include the collection of the price of the property, the sale of which they negotiate. The obligations of the bond are not more extensive than the statute imposes. I, therefore, respectfully dissent.


author: JANVIER, J.

text:
    No. 11,510
    Orleans
    BARTELS v. SOUTHERN YACHT CLUB
    (December 16, 1929. Opinion and Decree.)
    H. A. Moise, of New Orleans, attorney for plaintiff, appellee.
    Beard & 0'’Keefe, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

For some time prior to the year 1922 plaintiff had been employed by defendant as night watchman, for which he was given his board and lodging and a salary of $50 per month. He contends that the salary paid him was not intended as compensation for extraordinary carpentry and mechanical services which from time to time he might be called upon to perform, but was to compensate him only for serving as night watchman and for such minor repairs inside the club building of defendant as he might be called on to make. This suit is for $1,002.60 for extraordinary services in making major repairs rendered necessary by storm damage. These services were claimed to have been rendered during the latter part of 1922 and during the year 1923.

Defendant contends that the services were only such as were contemplated as being within plaintiff’s duties as night watchman and houseman and that it was not understood that he should receive extra compensation. Defendant further resists payment on the ground that, by a resolution of the governing board, no indebtedness exceeding $100 could be incurred by the club unless with the approval of the governing board obtained prior to the incurring of the indebtedness.

The evidence convinces us that, for several years prior to the period in question, plaintiff had performed similar services and had been paid extra compensation in rather substantial sums. At one time his bill for $1,100 for similar services during an earlier period was paid by the club, apparently without question as to plaintiff’s right to receive extra compensation for such services.

If the defendant had internal rules and regulations, it is not shown that they were brought to the attention of Bartels, and, on the contrary, it appears that, by the custom established in the previous years, Bartels was led to believe that he would be compensated for such services.

The bill of plaintiff bears the approval of Mitchell, who was the manager of the club at the time the services were rendered and who testified that the charges were correct and that the services were performed satisfactorily.

It is true that, at the time this bill was approved, Mitchell was aware of the fact that his services were about to be dispensed with, but while such a circumstance might, ordinarily, to some extent, affect the credibility of a witness, it is not sufficient to justify us in entirely disregarding the testimony of that witness, particularly in view of the fact that no evidence challenging the correctness of the bill was introduced. The only officer of the club who, on the trial, gave any helpful information on the question of the prior custom, was Mr. H. T. Howard, who had been commodore for the three years next preceding those involved in this suit, and his testimony is to the effect that he had settled with Bartels for his prior bill and that, at that time, it was understood that in the future the salary of Bartels was intended to compensate him for minor repairs inside the club, but that, if called on to perform services outside the club, or to make major repairs resulting from storm damage, additional compensation would be paid.

The delay in presenting the bill; the fact that Mitchell when he approved the bill knew he was about to be discharged and the fact that he kept the bill in the club safe without presenting it to the officers are all suspicious circumstances. Had such men as Mr. Benedict, Mi\ Moody and Dr. Miller and the other officials of the club, been able to contradict the testimony of plaintiff’s witnesses, we would not have hesitated in reversing the judgment against the club. But those officials mentioned gave only negative testimony. They had little information as to the duties of Bartels and did not attempt to contradict his statement as to the prior payments for similar services.

Por these reasons we are unable to say that the judgment appealed from, which was in favor of plaintiff as prayed for, was manifestly erroneous.

It is therefore ordered that the judgment appealed from be and it is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,154
    Orleans
    PEREZ-SANDI v. BERGES
    (December 16, 1929. Opinion and Decree.)

      Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiff, appellee.
    Delvaille H. Theard, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff had rented a garage attached to the premises of defendant. In addition to the storage of his car when not in use he placed, with the consent of defendant, a number of trunks therein, containing wearing apparel. On the day that he was bitten he had entered the garage for the purpose of obtaining some clothing from one of these trunks. As he opened the door the dog ran out. He thereupon attempted to notify Mrs. Braquet that the dog was in the street. Mrs. Braquet’s daughter heard his call, intended for her mother, and called to the dog, which returned to the premises and bit plaintiff a number of times, being finally persuaded to let him alone by Mrs. Braquet, who had appeared by that time, throwing a bucket of water on him.

The charge that plaintiff attacked the dog and provoked the assault has not been substantiated by the evidence. The only attack made on the dog was by plaintiff’s wife, who used a small stick, which she found in the vicinity as a prop for some growing plants, in an effort to drive the dog away.

The question of the ownership of the dog is somewhat doubtful, though there is testimony in the record that Mrs. Braquet, the defendant, admitted that the dog had been given to her by her son-in-law, Maurice Rooney. Mrs. Braquet denies ever having made this statement and insisted in her testimony that the dog was the property of her son-in-law at the time plaintiff was bitten. Be this as it may, the evidence leaves no doubt in our minds that the dog was harbored by the defendant, was in her possession, and under her control. In Reneau vs. Brown et al., 9 La. App. 375, 119 So. 445, this court held that “a person, whether the owner or not, of a vicious dog, and whether the owner or not of the premises on which the dog is kept, may make himself liable to others by keeping or harboring such a dog after obtaining knowledge of its vicious propensities.” See American-English Cyclopedia of Law, 2nd Ed., vol. 2, page 375.

The second ground of defense relied upon by defendant is based upon the jurisprudence of this state and of other jurisdictions reviewed by this court at length in the case of Gillespie vs. Blaise, 3 La. App. 59, to the effect that “the owner of a domestic animal is not in general liable for an injury committed by such animal unless it be shown that he had notice of its vicious propensity.”

The dog in this case was of the species known as “Chow” and Mrs. Braquet is said by one of plaintiff’s witnesses to have admitted that the dog was given to her by her son-in-law, because it had bitten one of his children, her grandchild. This is also denied by Mrs. Braquet. The ownership of the dog is claimed by her son-in-law, who testified in the case. It is admitted, however, that on a previous occasion the dog had bitten a servant in Mrs. Braquet’s employ. Mrs. Braquet, in referring to this incident, describes the wound inflicted by the dog as a scratch. However, she and her daughter, testifying in her behalf, admit that the servant was taken to the hospital, where the wound which the dog had inflicted was treated. Moreover, defendant, in her answer, averred that “plaintiff was warned not to attack the dog, but to go to a place of safety,” and her daughter, in support of this allegation of the petition, testified that she called to plaintiff, before he was bitten, advising him not to call the dog because of the possibility of his being bitten. In her own words she advised plaintiff: “Don’t call him because he may bite you. Go in your car or on the porch.” When asked on cross-examination why she had given plaintiff this warning, she answered, “Because those dogs are naturally of a very nervous temperament and he wasn’t accustomed to go into the street, and I was afraid something would get him nervous.”

Article 2321, R. C. C., reads as follows:

“The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the- abandonment.”

We have said that the jurisprudence of this state was to the effect that previous knowledge of the vicious tendency of an animal was ■ necessary to -hold its owner answerable in damages. This is our appreciation of the present state of the law in Louisiana, though the question was not originally free from doubt. In Delisle vs. Bourriague, 105 La. 77, 29 So. 731, 733, 54 L.R.A. 420, a case in which the Supreme Court was reviewing a decision of this court on certiorari, this court held:

“We do not think that the doctrine of scienter as a prerequisite to the liability of the owner finds lodgment in our law and jurisprudence.”

It was there pointed out that in France, from which source our Codal article was obtained, the commentators Marcade and Demolombe, and others, were not in entire agreement, but the unqualified statement of liability in our Code was pointed to as justifying the exclusion of the doctrine of scienter, in Louisiana. This court in that case, in discussing this point, said:

“In a case in which a father was sued for damages caused by his minor child, it was said ‘the law its'elf imputes the fault to the father.’ It ¡presumes that it resulted from lack of sufficient care, watchfulness and discipline on his part in j:he exercise of the parental authority. This is the very reason and foundation of the rule. For like reasons, the law imposes responsibility upon the owner for damages occasioned by his animals, who have certainly no greater powers of discernment than the infant of tender years.”

In discussing this dictum the Supreme Court in the cited case said:

“We are not inclined to go to the extent that it is of no consequence in determining the liability of the owner,, whether or not he had knowledge of the vicious propensities of his animals. True, the owner of the animal is responsible for the damage it has caused. We do not think, however, that there is no limitation to his liability and that in all cases of bad conduct of the animal causing the injury, he is to be held in damages. The article itself relating to the owner’s responsibility contains restrictions and qualifications. * * * Besides, that the damages caused by animals are not viewed, as relates to liability, as being similar to the damages caused by a minor for which a tutor is responsible.”

In summing up the matter the court said:

“Article 2321 of the Rev. Civ. Code (Art. 1385 C. N.) is founded upon the presumiption that the fault is chargeable to the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident, and that presumption can be made to give way only in the presence of proof either of an unforeseen event, or by the imprudence of the one injured. Fizier-Herman, Vol. 3, p. 905, No. 37.

“The French commentators have approvingly referred to this view. From Laurent, Yol. 20„ p. 675, we quote: That is to say there is no responsibility when there is no fault, the one to whom the damage is imputable should be (permitted to prove .that he was not at all at fault. But it is only needful to prove the lightest fault (culpa levis). to hold the owner responsible.”

Subsequent adjudications by our Supreme Court have not affected the views expressed in Delisle vs. Bourriague, supra Martinez vs. Bernhard, 106 La. 368, 30 So. 901, 55 L.R.A. 671, 87 Am. St. Rep. 306; Bentz vs. Page, 115 La. 560, 39 Sou. said:

“While the least act of negligence should be enough to hold o,ne liable, who owns a dog, yet it must appear that there was some negligence, however slight.”

In the Bentz case Justice Land quotes Shawhan vs. Clark, 24 La. Ann. 390, to the effect that the burden of proof is on the owner of the animal to show that he was without the slightest fault and did all that was possible to prevent the injury. The holding in the Shawhan case, he observes, is in conformity with the views of Laurent.

In Mercer vs. Marston, 3 La. App. 97, a well-considered case from the Second Circuit, the jurisprudence of our state is reviewed at considerable length and a comparison made with the adjudication of Common Law states and the conclusion reached that the slightest negligence or fault on the ¡part of the owner results in responsibility.

Can it be said that, under the facts of this case, Mrs. Braquet was guilty of the slightest fault in harboring the dog which bit plaintiff? It is vigorously asserted in her behalf that the dog had not theretofore displayed any vicious tendencies; that he had always preserved a gentle demean- or and exhibited a good disposition. But she admits that the. dog had previously bitten a negro servant in a manner, and with such severity, as to make it necessary for the servant to repair to a hospital for treatment. There is also a statement in the record that the dog had bitten one of her grandchildren, which, as previously re-' marked, she denies, but it is very significant that prior to the dog’s attack upon plaintiff Mrs. Braquet’s daughter called to him and warned him that the dog might bite him and advised that he seek shelter in his automobile. This warning is used defensively by Mrs. Braquet in an effort to establish plaintiff’s negligence in failing to heed it, but we consider it eloquent of the general fear in the household of the dog’s vicious tendencies. It was a “Chow” dog, whose nervous disposition was testified to by defendant’s daughter. In any event, when tested by the rule which prevails in this state to the effect that the slightest fault on the part of an owner of an animal will render him responsible for damages caused by the animal, plaintiff’s right to recover in this ease cannot be questioned. The testimony of defendant and the witnesses testifying in her behalf alone indicate that the dog had given sufficient evidence of its dangerous character to render defendant’s conduct in harboring it, and not confining it, negligent and culpable. It was certainly culpa levis.

We are of opinion that defendant’s liability has been established by the evidence.

Plaintiff has answered the appeal and asked for an increase in the amount of the award. There can be no question about the serious nature of plaintiff’s injuries. He was bitten twenty-two times and the essential medical treatment involved considerable pain and suffering. In addition to this the possibility that the dog might have been infected with rabies subjected plaintiff to great anxiety for a period of two weeks after his injuries, this being the time during which the disease might manifest itself in plaintiff if he had been innoculated with the virus of. that dread disease by an infected dog. We feel, however, in this case, very much as the Supreme Court expressed itself in Jackson vs. Briede, 156 La. 573, 100 South. 722, 726, that “the court should not impose a penalty in money greater, perhaps, than the defendant can pay.” The fault of defendant in harboring a vicious dog unquestionably involved her with full responsibility for the consequences to plaintiff, but the record indicates that defendant was in very modest circumstances, a fact which, under the jurisprudence, should be considered. Gallman vs. Young, 6 La. App. 138; Loyacano vs. Jurgens, 50 La. Ann. 441, 23 South. 717, 718; Daly vs. Kiel, 106 La. 170, 30 South. 254, 256. In the Daly vs. Kiel case the court said:

“The evidence on the ability of the defendant to respond in damages is meager, but the impression made by it is that he is a man of limited means, and it is likely that the jury took this into consideration, as they could do, in arriving at the amount of their verdict.”

In Loyacano vs. Jurgens, the court said:

“There is no testimony in the record touching the circumstances of defendant. It may be, however, that the trial judge had knowledge otherwise of his circumstances, and this may account for the small allowance made by him. A party’s circumstances may not improperly be considered to a reasonable extent in estimating damages to be awarded in a case like this, where defendant personally was not at fault. It were the better practice, though, that the same be disclosed by the evidence when intended to be invoked.

“Several times the amount awarded this plaintiff would not be too much for the injuries he sustained. While this is so, we hardly feel warranted, in this particular case in increasing the allowance beyond eight hundred dollars.”

Nevertheless, regardless of the considerations we have mentioned the amount awarded in this case is too small and we have concluded to increase it to $1,000.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff to the sum of $1,000.00, and as thus amended, it is affirmed.


author: HIGGINS, J.

text:
    No. 11,526
    Orleans
    MADISON LUMBER CO. v. PICHELOUP ET AL.
    (December 16, 1929. Opinion and Decree.)

      Deutsch & Kerrigan, cf New Orleans, attorney's for plaintiff, appellee.
    Charles J. Rivet, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

Plaintiff entered suit against the defendants individually for the sum of $1,818.76, for material alleged to have been used in the construction of the building upon defendants’ property, and for recognition of its materialmen’s lien, under section 12 of Act No. 298 of 1926.

The petition alleges that the material was furnished to one Charles Young, contractor, between the dates of September 6th and November 11, 1927, amounting to $2,579.76, on account of which Young paid the sum of $761, leaving a balance due of $1,818.76, plus $3 for recordation of the lien; that Young used the material in the construction of a building for the account of defendants on their property; that the defendants failed to record the building contract and bond required by law; and that plaintiff’s materialmen’s lien was duly recorded, and a sworn itemized statement thereof served upon defendants; and that Young was adjudged a voluntary bankrupt. Plaintiff prays for judgment against defendants individually and in solido and for recognition of its materialmen’s lien.

Each of the defendants filed an exception of no cause of action based upon the ground that the petition shows that the material was sold, and delivered between the date of September 6 and November 18, 1927, and that defendants acquired the property on December 3, 1927, and therefore plaintiff cannot hold defendants individually under section 12 of Act 298 of 1926, as defendants were not the owners of the property at the time plaintiff furnished the material, and there is no law which makes the purchaser of property responsible for a materialman’s lien. The exceptions were overruled, and defendants answered by a general denial.

There was judgment in favor of plaintiff against defendants jointly in the sum of $1,821.76, the amount of the claim plus $3 for recordation fee, and recognition of plaintiff’s materialmen’s lien on the property. Defendants have appealed.

The record shows that Mr. and Mrs. Frank Baroni, a young couple of ordinary means, called at the office of Probst and Picheloup, a partnership composed of Clifford Probst and Prank Picheloup and engaged in real estate investment and brokerage business, for the purpose of buying a home. These parties entered into the following written contract;

“June 24th, 1927.

“On July 2, 1927, Mr. and Mrs. Frank Baroni agree to pay to Probst & Picheloup six Hundred, and no/100 Dollars ($600.00) as the amount above the Homestead Loan on a three room double cottage to be built by Probst & Picheloup on lot corner Derbigny & Desire Sts., or if this lot' cannot be obtained, on any lot agreed on by buyer and seller, said lot to cost about One Thousand Dollars, more or less.

“House and lot shall not cost more than Forty-five hundred Dollars ($4500.00) complete. It is understood that Mrs. and Mr. Prank Baroni have only six hundred dollars in cash, and that- all expenses must be paid from the homestead loan obtained and. the six hundred dollars put up by the said Baronis.

“Work to be completed about Oct. 1, 1927.

“Homestead loan to be obtained by Mr. and Mrs. F. Baroni, and all expenses such as cost of act of sale, taxes, etc., to be paid by them, but must come out of the $600.00 and Homestead Loan. If Probst & Picheloup are due any amount above homestead loan and $600.00 they must finance same by 2nd mortgage or otherwise.”

Probst & Picheloup, the partnership, then ■directed its bookkeeper, Robert G. Williams, to purchase, in his name, a lot of ground selected by Mr. and Mrs. Baroni, which he did on August 25, 1927.

On September 14, 1927, Probst & Picheloup, the partnership, entered into the following written contract with Charles S. Young, contractor:

“This is an agreement between Chas. S. Young and Probst & Picheloup for1 the erection of a four room double cottage to be built on the corner of Desire and Derbigny' Sts.

“House to be erected by Mr. Young all materials and labor is to be furnished by him and he is to be responsible for both.

“House is to cost $2,785.00 plus a commission of 10% and is to be finished as soon as possible or on Oct. 1st, 1927, one side at least will be ready for occupancy.

“Probst & Picheloup are to advance the weekly payroll as to the amount required and Mr. Young will supply a receipt by each workman for the amount that he received.

“Probst & Picheloup are also to pay all bills for material used on or before the completion of the work.

“Lean Bond will be placed on completion of the work. Fire Insurance policy will be placed with the Indemnity Ins. Co., and will be assumed with the bond by purchaser.”

In accordance with his contract, Young erected the building, and ordered most of the material from plaintiff. The building was completed in the latter part of November, but, as the .contractor had caused a financial difficulty to arise by running the cost of the building over and above the contract price, Clifford Probst and Frank Picheloup, as individuals, determined to have the property transferred into their names. Accordingly, Mr. Williams, in whose name the property was placed as a matter of convenience for Probst and Picheloup, transferred the property to the homestead which in turn on December- 3, 1927, transferred it to Probst and Picheloup as individuals, subject to a homestead loan of $6,000. Probst & Picheloup, the partnership, then returned to Mr. and Mrs. Baroni the $600 which had been deposited with them on account of their contract and canceled the agreement.

Young, finding himself in financial difficulty, filed voluntary proceedings in bankruptcy and was adjudged a bankrupt on January 5, 1928.

The plaintiff filed its lien on December 17, 1927, and, therefore, the mortgage certificate obtained by Probst and Picheloup in the name of Robert G. Williams did not show any incumbrances against the property when defendants purchased it.

The present suit was filed against Clifford Probst and Frank Picheloup individually on March 6, 1928.

The first question presented is: Who was the owner of the property during the period of time from the beginning of the construction of the building until its completion and recordation of plaintiff’s lien? The evidence clearly shows that Mr. Williams was merely a nominal party interposed by Probst & Picheloup and had no interest in the property personally.

The articles of the co-partnership of Prohst & Pieheloup were not in writing, therefore it was impossible to take title to the real estate in the name of the firm. Article 2836 of the R. C. C. provides:

“If any part of the stock of this partnership consist of real estate, it must be in writing, and made according to the rules prescribed for the conveyance of real estate, and recorded as is hereafter prescribed with respect to partnership in commendam.”

In Lagarde vs. Dabon, 155 La. 26, 98 So. 744, 745, the court said:

“And even ‘particular’ partnerships (which are such as are formed for any business not of a commercial nature) must be reduced to writing and recorded if they are to include real estate. C. C. arts. 2835, 2836, 2848. All of which is, of course, in accord with the requirement of writing and recording in all that affects real estate.”

See, also, Toelke vs. Toelke, 153 La. 697, 96 So. 536.

The firm of Probst & Pieheloup was, therefore, without capacity to own real estate. We are convinced that it was the intention of Probst & Pieheloup and Mr. and Mrs. Baroni that the lot and improvements would be transferred to them for $4,500 after the completion of the building. The contract between these parties and the manner in which Probst & Pieheloup undertook to carry it out forces us to this conclusion. The $600 was paid under the terms of the contract on account of a three-room double cottage to be built, the total cost of the house and lot complete for $4,-500, free from ail incumbrances, liens, or privileges. The fact that the contract provides that the homestead- was to make a loan clearly shows this because, a homestead would not make such a loan on property that was incumbered with liens or privileges. The only remaining parties who could possibly be considered the owners of the property from the time that the title was placed in Mr. Williams’ name are the defendants herein. They are the sole partners in the firm of Probst & Picheloup, and both defendants personally handled the transaction.

The defendants further contend that the partnership should have been made a party to this suit, and that the individual partners cannot be held for a partnership debt unless the partnership is made a party to the suit. As this is a suit against the owners of the property under the proyisions of section 12, Act No. 298 of 1926, and since the partnership was incapable of owning real estate, and the real estate was owned by the individual partners, the partnership was not a necessary party to this suit.

The district judge, after considering the testimony in the case, arrived at the conclusion that the defendants were the owners of the property, and we find no reason in the record to say that his conclusion in this respect is erroneous.

The evidence in the record convinces us that the material was used in the construction of the building in question, and that plaintiff’s lien was properly recorded within the time provided by law. The relevant part of section 12 of Act No. 298 of 1926 reads as follows:

“Any person furnishing service or material * * * when a contract, oral or written has been entered into but no contract has been timely recorded, shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim.”

This language is clearly applicable here.

For the reasons assigned the judgment appealed from is affirmed.


author: HIGGINS, J. HIGGINS, J.

text:
    No. 11,844
    Orleans
    CASTET v. GAMBINO
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 2, 1930. Writ of Certiorari and Review Denied by Supreme Court.)
    Frank A. Miller and Solomon S. Goldman, of New Orleans, attorneys for plaintiff, appellant.
    Warren Y. Miller, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit by a widow, as the mother in behalf of her minor son, aged 17 years, for compensation for the loss of all of the fingers of his right hand while in the employ of the defendant on August 21, 1928, at about four o’clock A.M. The defendant admitted the employment, the amount of wages and the accident, but denied liability on the following grounds:

First, that the accident did not arise in the course of the minor’s employment, averring “the minor was playing with the meat grinding machine when injured,” and

Second, that the minor had used his hands instead of a wooden pestle, or mallet, provided by the defendant for forcing the meat into the blades of the meat grinder, and that this was an adequate guard or protection against the accident, and that the minor deliberately failed' to use it.

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

The conclusion which we have reached on the facts in the ease makes it unnecessary to decide whether or not the wooden pestle or mallet was an adequate guard or protection against the accident within the meaning of the compensation law.

The evidence is conclusive that the accident arose out of the minor’s employment with the defendant, so that the first defense of defendant falls. We might say that this defense was not even urged in the argument at bar.

The serious issue of fact involved is whether or not a wooden pestle or mallet was furnished by defendant to plaintiff’s minor son as an adequate guard or protection against the accident. Plaintiff contends that such a guard was not furnished and defendant contends that it was.

Plaintiff proved a prima facie case and defendant then offered a number of witnesses to prove the allegation of its special plea that a pestle or wooden mallet was furnished as an adequate guard or protection against the accident. Under the law the defendant bore the burden of proving by a preponderance of the evidence this allegation in support of his special plea.

In paragraph 3 of defendant’s answer it is averred that, at the time of the accident, “the minor was playing with the meat grinding machine,” hut the defendant, in his testimony, admits he had employed the boy for the purpose of running errands and also to operate the meat grinding machine in which his hand was injured; that at the time of the injury he had ordered the boy to grind meat; that time and again he had warned the boy to use the pestle or mallet in order to press down the meat in the machine, and the day before the accident “fired” the boy because he disobeyed instructions to use this pestle or mallet. In other words, he denies in his answer that the boy was employed for the purpose of operating the machine and avers that the boy was injured while playing with it; and yet, in his testimony, he absolutely contradicts the sworn allegations of his answer. Defendant has, therefore, discredited his own testimony.

Defendant produced two lady customers as witnesses, who testified that they knew that a pestle or mallet had been furnished by the defendant for use in connection with the operation of the meat grinding machine because they objected to the boy ¡pressing down the meat in the machine with his hands, as this was unsanitary. But the record shows that the meat was placed in the receptacle of the grinding machine by the hands, and the pestle or mallet was used only to press it down to the knives of the machine. Their reason for remembering the pestle is therefore not impressive. Furthermore, these witnesses testify to what they saw on previous occasions, but neither of them was present at the time of the accident.

Defendant produced other witnesses who testified that, on previous occasions, thev saw the pestle or mallet by the grinding machine, but they likewise were not present at the time of the injury. However, one witness produced by defendant, Frank Lecche, his nephew, testified that immediately after the boy was injured he rushed to the scene of the accident and noticed the pestle on the meat stand. This statement by him was purely voluntary and came before counsel had in any way questioned him about the pestle or mallet. This witness' and most of the others produced by defendant work or have stands at the French Market, where defendant’s stand is located, and are friends or relatives of the defendant. The majority of defendant’s witnesses are Italians and from their testimony it appears that they are uneducated, and yet we find the word “pestle,” which is not . a common word, was used by them throughout their testimony. This is singular to say the least.

The defendant also offered one Anthony Claverie, a young man who took the position of the injured boy, in the employment of defendant, just two hours after the accident. After testifying that the pestle was on the meat stand of the defendant when he arrived that morning, he testified on cross-examination as follows

“Q. Who bought the new mallet for Philip Gambino?

“A. I did.

“Q. How soon was that after Rene got hurt?

“A. The same day.

*❖**###

“A. I had orders to buy two new ones so I could give the old one to the lawyer.

“Q. How many mallets are there now?

“A. Two — one for his brother and one for him.

“Q. His brother is Charlie Gambino?

“A. Yes.

“Q. And you bought two of them right after Rene got hurt?

“A. Yes, sir.”

The evidence shows that the meat stand of Charlie Gambino, a. brother of defendant, was just five feet from the defendant’s meat stand. The injured boy testified that the pestle or mallet produced in court was the property of Charlie Gambino and was used in connection with the meat grinding machine, but that defendant did not have any pestle or mallet which was, to be used in connection with defendant’s machine. There can be nu reason why the defendant purchased two mallets, other than that he replaced the mallet of his brother, Charles Gambino, which was introduced in evidence, and kept one of the mallets for his own machine after the accident. The only persons present at the time of the accident were the boy and defendant. The question of whether or not a pestle or mallet was furnished depends largely on their testimony. As defendant has discredited his own testimony and his witnesses were not present at the time of the accident, we have reached the conclusion that the defendant has failed to prove by a preponderance of the evidence the allegations in support of his special plea, and plaintiff is entitled to recover.

It is admitted that, at the time the boy was injured, he was earning $18 per week. Sixty-five per cent of this figure amounts to $11.70. Under the compensation law he is entitled to compensation for eighty-four weeks. Defendant has ¡paid six weeks’ compensation to the injured boy without admitting his liability.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the district court be and the same is hereby annulled, avoided and reversed, and that there now be judgment herein in favor of Mrs. Celina Castet, widow of Jean Marie Laporte, for the use and' benefit of her minor s.on, Erene Laporte, plaintiff herein, and against the defendant, Philip Gambino, in the sum of $11.70 per week for eighty-four weeks, beginning August 21, 1928, with legal interest on each week’s installment from date it. became due until paid, subject to credit of six weekly payments made by defendant. Defendant to pay all costs of these proceedings.

ON APPLICATION FOR REHEARING

HIGGINS, J.

Both appellant and appellee have applied for a rehearing in this case. We find no merit in appellee’s application.

The appellant, in his petition for rehearing, has called our attention to the fact that the correct name of the plaintiff’s minor son is “Rene” Laporte instead of “Erene Laporte,” as erroneously stated in plaintiff’s petition.

Our attention has also been called to an error in our decree in this case in that we allowed eighty-four weeks instead of ninety weeks compensation to plaintiff.

These errors can be corrected by amendment.

It is therefore ordered that our former decree be amended so as to read as follows:

It is ordered, adjudged and decreed that the judgment of the district court be and the same is hereby annulled, avoided and reversed, and that there now be judgment herein in favor of l£rs. Celina Castet, widow of Jean Marie Laporte, for the use and benefit of her minor son, Rene Laporte, plaintiff herein, and against the defendant, Philip Gambino, in the sum of $11.70 per week for eighty-four weeks, beginning October 1, 1928, with legal interest on each week’s installment from the date it became due until paid, defendant and appellee to pay all costs of these proceedings.


text:
    No. 11,887
    Orleans
    MATTHEWS BROS. v. BERNIUS
    (July 1, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Granted by Supreme Court.)

      Deutsch & Kerrigan, of New Orleans, attorneys for plaintiffs, appellants.
    Fred Zengel, Jr., of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit by a firm of real estate agents seeking to recover a commission earned in effecting a contract for the sale of real estate.

Defendant, at the time the contract of sale was entered into and at the time she made the contract with the agents, was the Wife under the community of acquets and gains of Robert Bernius.

The property in question, though purchased during the existence of the community and with community funds, had been placed in defendant’s name.

A written brokerage contract had been entered into between plaintiffs and defendant under which it was agreed that plaintiffs should attempt to sell the property for a certain price, their commission to be 4 per cent of the said price..

There is some dispute* as to whether defendant sought out plaintiffs and, on her own initiative, listed the property with them, or whether they solicited the listing. We do not see that a determination of this disputed question is necessary, as there is no doubt that the agreement was made, no matter who initiated the negotiations which led up to it, and that plaintiffs, acting under the contract, produced a purchaser.

Defendant, believing herself to be the owner of the property, thought that she had the legal right to sell it without her husband’s consent or authorization.

Plaintiffs, assuming that the property was separately owned by defendant, did not require that the husband join the wife in authorizing them to attempt to find a purchaser.

A purchaser, ready, able, and willing to pay a price satisfactory to defendant, was produced by plaintiffs, a written offer was made, and it was accepted i,n writing by defendant.

The attorney for the prospective purchaser, upon examining the title to the property, discovered that it belonged to the community and not to defendant separately, and advised his client not to accept title unless the husband would join his wife in transferring it. This he refused to do and the sale was never consummated.

The agents now sue for their commission.

Payment is resisted on two grounds:

First, that the commission was to be due only if a sale was consummated.

Second, that the contract between defendant and plaintiffs was null ab initio as it contemplated the sale by the wife of community property without the authority of the husband.

We can see no merit in the first contention. The contract contains no special stipulation making the payment of the commission dependent or contingent upon the consummation of the sale. On the contrary, it appears to be the usual brokerage contract under which the broker’s full duty was performed when he produced a contract signed by one ready, able, and willing to buy and to pay the price. Jordy vs. Salmen Brick & Lumber Co., Ltd., 121 La. 457, 46 So. 572; Succession of Fairchild, Teissier’s Orl. App. Dig. p. 31; Corpus Juris, vol. 2, p. 769, Agency.

The second contention is not so readily disposed of.

It is conceded that prior to the enactment of the various statutes granting so-called emancipation to married women, to-wit, Acts No. 94 of 1916, No. 244 of 1918, No. 219 of 1920, and No. 132 of 1926, a married woman, in accordance with Rev. Civ. Code, art. 1782, was under such absolute and complete disability as to nullify any attempt by her to contract unless with the authority of court or of her husband. She was, until the passage of those acts, classified with interdicts, persons of insane mind, and minors. Any one who dealt with a married woman did so at his peril.

Defendant contends that the statutes referred to are not general in the relief they grant to married women, but were intended to grant only a limited emancipation, which included no general right to contract but only the privilege of dealing with reference to separate property. Of course, where a person is laboring under a general disability and is' permitted to do only such things as come within specified exceptions, it is the duty of one dealing with such a person to make certain that the act done or the contract relied on is within the exception. On the other hand, where one is generally able to contract and is prohibited from contracting only in specified exceptional cases, persons may deal with him or her under the assumption that no disability exists, and it is the duty of him or her who seeks to take advantage of the disability to advise the other of it and to prove "that the contract sought to be made is prohibited.

It therefore follows that, if, as a result of the acts referred to, a married woman has been generally relieved of all disability to contract except that her contracts shall not affect the community, it seems to us that the real estate agents were justified in assuming that 'defendant was dealing with property with reference to which she had the right to contract, and were not required, before accepting the listing of the property, to cause the title thereto to be examined. Particularly does this seem reasonable when it is remembered that a real estate agent as a general thing is not required, before making a contract contemplating the sale of real estate, to cause the title to be examined to determine whether the person who lists it is really the owner. Gurley vs. Loeffler, 14 Orl. App. 424; E. J. & B. F. Camp Lumber Co. vs. Tedder, 78 Fla. 183, 82 So. 865; Cofield vs. McGraw & Garner, 16 Ala. App. 369, 77 So. 981.

That the statutes in question, particularly Act No. 244 of 1918, were intended to give to married women the full and complete right to contract, except to such .extent as their contracts might affect community property, was decided by our Supreme Court in S. B. Hicks Motor Co. vs. Caldwell et al., 148 La. 21, 86 So. 598.

There a married woman had indorsed notes of another and, on being sued, had set up a defense identical with that we are now considering. The Court of Appeal had said:

“We hold that the authority granted to married women by the acts under consideration, to sign contracts without being authorized by their husbands, relates exclusively to contracts with reference to their separate paraphernal property.”

The Supreme Court, in reversing the decree of the Court of Appeal and particularly with reference- to the language just above quoted, said:

“We are unable to concur in the view thus expressed.”

It thus appears that the interpretation of those statutes, so far as the question now presented is concerned, is no longer within our province.

It is true that the contract for the sale of the property could not be specifically enforced, because that contract would have affected the community, but we see no reason why the brokerage contract should not be binding. Mrs. Bernius was under no general disability.

For the reasons we have given, Matthews Brothers were justified in assuming that she had the right to make the contract with them and they were under no obligation to examine the title to the property. It might well have been that Mrs. Bernius hoped that, by getting an offer for the property, she could persuade her husband to accept it. At any rate, whatever her reason, she assumed the position of negotiorum gestor- and with it she assumed its obligations.

Suppose that, instead of offering to sell real estate, she had entered into a contract with plaintiffs under which they were to attempt to buy for her a certain piece of property she wanted, and suppose that they were successful in their negotiations. Could she defeat their rights to a commission provided for in the contract by simply saying “I have no separate funds with which to buy and therefore you can’t hold me to my contract?”

Our Supreme Court has held that the statutes referred to give married women the general right to contract. It is their duty to so use this right as not to affect community property. If they make a contract which would affect community property. the result is that the contract cannot be enforced, but they are personally liable, and this liability may be satisfied out of their separate property, if there is any.

The brokerage contract stipulated for attorney’s fees in the event of suit. Thirty-eight dollars is asked for on this item, in addition to the principal demand for $192. We think the fee asked for is reasonable.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of plaintiffs and against defendant, Mrs. Robert Bernius, in the full sum of $230 with legal interest from judicial demand and for all costs.


author: ODOM, J.

text:
    No. 3729
    Second Circuit
    ETHERIDGE-ATKINS MOTOR CO. v. BRODNAX
    (January 31, 1930. Opinion and Decree.)
    K. Hundley, of Alexandria, attorney for plaintiff, appellant.
    Polk & Robinson, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

On December 11, 1928, the defendant, Brodnax, bought a second-hand Dodge automobile from the plaintiff company, the price being $280. He paid $90 cash and gave his notes, secured by chattel mortgage on the car, for the balance. He failed to pay the notes, and (plaintiff by this suit seeks to collect them. The defense is ' that the consideration for the notes failed. This defense was sustained by the lower court and plaintiff appealed.

The defense is good and was properly sustained. A few days after plaintiff sold and delivered the car to defendant, it was seized and taken from him by the sheriff in a foreclosure suit by the holder of notes secured by a prior mortgage on the car. Defendant had no knowledge of this prior mortgage on the car and as soon as it was seized went to plaintiff’s manager, Mr. Thibodeaux, and informed him that the car had been seized and taken from him. Thibodeaux assured defendant that he would have the car released, but, after some delay, he informed defendant that he could not get it released at that time. There were some negotiations between Thibodeaux and defendant which resulted in the delivery by plaintiff to defendant of another Dodge car. The testimony is conflicting as to the conditions upon which defendant accepted the second ear. Mr. Thibodeaux,' representing plaintiff as manager, says that defendant agreed to accept the second car in place of the .first and agreed that the notes given for the first car should be transferred to the second. ■Defendant, however, says that the agreement was that he should receive the second car in lieu of the cash payment of $90 on the first, and that his notes should he surrendered and cancelled.

But, regardless of the agreement as to the conditions under which the second car was to be accepted by defendant, the pertinent facts are that plaintiff did not own the car which it originally sold to defendant and for which he gave the notes sued on. Prior to the date on which plaintiff sold the car to defendant, it had sold the same car to Mrs. Holt, who failed to pay the notes given for the purchase price and which were also secured by chattel mortgage on ■ the property. Not only that, but Mrs. Holt’s husband had granted a second mortgage on the car and these notes and the mortgage securing them were not paid. Mrs. Holt and her husband seem to have abandoned the automobile; at any rate, it was left on a street in Alexandria where the plaintiff company picked it up and carried it to its place of business. But there was no conventional or other transfer of the car back to (plaintiff up to the time it was sold to defendant, nor has there been any since. Plaintiff, having no title to the car, could transfer none to defendant. The title to the car was in Mrs. Holt when plaintiff sold it and was in her at the time of the trial of this suit. Defendant gave the notes sued on in payment of the price of the car; he got no car and, as a result, the consideration for the notes failed.

More than that, Mr. Thibodeaux, plaintiff’s manager, agreed to rescind the sale and to get defendant’s notes which were then in Monroe. On page 13 of the evidence, he was asked what was said about these notes during the conversation which he had with defendant after the car was seized, and he answered:

“I told him I would get the notes back from Monroe and we could transfer them to the other car, in case he wanted the other car.”

What Mr. Thibodeaux intended to do, no doubt, was to let defendant have another car of equal value and to hold these notes as evidence of the debt for the second car. But negotiations to that end failed, and this is clear because, later on, plaintiff did have the car released and tendered it to defendant, who refused to accept it. It seems clear to us that if Mr. Thibodeaux had understood that defendant had agreed to accept the second car in lieu of the first, he would not have subsequently tendered the original car to defendant.

If it be conceded', as suggested by counsel, that plaintiff could have acquired title to the car subsequent to the date on which it was sold to defendant and then delivered it to him, thereby making the notes and the mortgage good — the answer to the suggestion is that plaintiff did not perfect its title to the car, hut only had it released from seizure. So that its title to the car, when it was subsequently tendered to defendant, was no better than when it was origirially sold to him. Through some deal with the holders of the Holt notes, plaintiff had the car released from seizure. But Mrs. Holt was not consulted. So far as the record discloses, the title to the car is still in Mrs. Holt.

This suit is on promissory notes. The defense is that the consideration failed, and defendant made good its defense.

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


author: DREW, J.

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    No. 3672
    Second Circuit
    PENINGER ET AL. v. COX
    (January 31, 1930. Opinion and Decree.)
    A. Y. Hundley, of Alexandria, attorney for plaintiffs, appellees.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellant.
   DREW, J.

Plaintiffs, J. Luther Peninger and his wife, Elmer S. Peninger, instituted this suit against defendant, C. P. Cox, to recover for J. Luther Peninger the sum of $100, claimed as damages to his automobile, caused by its being struck by defendant's car, alleged to have been driven' by defendant at an excessive rate of speed and in a careless and reckless manner, and to recover for Mrs. Elmer S. Peninger tbe sum of $150, damages for personal injuries, alleged to have been caused her by the collision, in which she received a severe shock and was badly jarred and frightened. She alleges that she suffered considerable physical pain and mental anguish; that she is of frail and delicate buildi and not constitutionally strong; and that her health has been permanently impaired.

'Defendant filed a plea to the jurisdiction, which was overruled by the lower court, and the plea has been abandoned by the defendant in this court. Defendant then filed an exception of misjoinder on the day the case was fixed for trial, but before answer had been filed. This exception was overruled by lower court. An answer, which is virtually a general denial, was then filed. The case was tried on its merits, and the lower court rendered judgment for plaintiff as prayed for.

The defendant strenuously contends that the lower court erred in overruling his exception of misjoinder, and relies almost entirely on that exception in defense of this suit. His contention is that the law does not permit a husband and wife to urge their respective claims against a single debtor in one suit, and that having done so in this suit, the plaintiffs were improperly joined. Citing article 2402 of the Civil Code as amended by Act No. 68 of 1902, providing that “damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone,” and Act No. 244 of 1918, allowing married women to “sue and be sued, to the same extent and same manner as though she were a femme sole.” Therefore she has no more right to join in a single suit with a husband to recover damages than a stranger would.

The general rule of law is that two or more persons will not be permitted to join in an action against their debtor1 unless there is a joint interest between them in their demand, or privity of contact which authorizes the joinder; and the mere fact that plaintiffs in the instant case are husband and wife has no bearing on the question.

The settled jurisprudence of this state is that the question of misjoinder of parties is left to the sound discretion of the court, with the idea of avoiding a multiplicity of suits. There is no settled and inflexible rule as to whether or not a pleading is multifarious. The question is one which must be determined largely by the circumstances of each particular case. A pleading is not multifarious where the complainants have a common interest as to the point at issue, though their claims are in a sense distinct. The avoidance of a multiplicity of suits is always desirable. Gill vs. City of Lake Charles, 119 La. 18, 43 So. 897.

In Hotard vs. T. & P. Ry. Co., 36 La. Ann. 450, the court permitted several market gardeners, cultivating separate tracts of land, to unite in one suit to recover damages done to their several tracts by the railroad embankment.

In Brou vs. Becnel, 20 La. Ann. 254, separate holders of the same series of mortgage notes were allowed to unite in the same suit to enforce payment.

In Reardon vs. Dickinson, 156 La. 558, 100 So. 715, the court held:

“Subscribers to corporate stock were entitled to join as plaintiffs in action to recover price paid for stock though each plaintiff entered into separate contract, and no one had any interest in shares acquired by others; all plaintiffs being induced to subscribe for stock on false representations of common agent though representations were not made to plaintiffs collectively.”

The court further said that the cause of action of each of the plaintiffs has the same origin and arises from the same common source.

In the instant case plaintiffs allege that their damage was caused at the same time by one act of the defendant, he driving his car into the one they were seated in, and each of their causes of action arises from the same common source. The same evidence would have been necessary in each case if they had been filed separately, in order to make out a case against the defendant, and the only possible variance is as to the extent of the injury to each.

The matter was within the sound discretion of the trial judge, and we are unable to say that he has abused that discretion, and certainly the defendant has suffered no injury by the ruling complained of.

ON THE MERITS

As to the liability of defendant, to J. Luther Peninger, the only question is the amount. The defendant, at the time of the accident, gave plaintiff J. Luther Peninger his name, and authorized him to have his car fixed and send the bill to him, admitting his liability. On the trial of the case, defendant tendered to plaintiff J. Luther Peninger the sum of $92.95, and admitted liability in the following amounts: Actual damage to car, $44.70, tire and tube, $12.50, court costs, $35.75 — which amount was rejected by the plaintiff. The testimony of the plaintiff J. Luther Peninger, and of the mechanic who repaired the car, is that the car was damaged at least $100, and there was no evidence offered by the defendant to rebut this testimony. The lower court awarded plaintiff J. Luther Peninger judgment in the amount of $100, and we see no reason for disturbing that judgment.

Dr. James Welch testified that the plaintiff Mrs. Peninger had high blood' pressure previous to the accident, but that he had treated her and gotten it down to 145 or 150, and that she had been in good shape for some time before the accident, and that a short time after the accident he was called to see her and found her in bed and very nervous and that her blood pressure had gone up to 200. He testified that when he went to see her after the accident, she was all to pieces, and that it took a month or six weeks’ treatment to bring her blood pressure down to what he considered safe again; that blood pressure can be raised by fright, shock, and other things, and that such a condition as hers having been produced would make her more susceptible to damage from subsequent strokes; that each recurrence would damage her kidneys, thereby lowering her resistance, and would, to a certain extent, have lasting and permanent effects.

The testimony of Mrs. Peninger and her husband is that she was confined to her bed for some two weeks after the accident; that she was very nervous and unable to do her housework for about two weeks more; that prior to the accident she was up and looking after her household duties. Defendant offered no testimony in rebuttal of the testimony of Dr. Welch or of Mr. Peninger or Mrs. Peninger in regard to Mrs. Peninger.

The lower court gave Mrs. Peninger judgment for $150, being the amount prayed for, and we see no reason to disturb that judgment.

We are convinced that the finding of the lower court is correct, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.


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    No. 3588
    Second Circuit
    SWOPE v. HOLMES
    (January 31, 1930. Opinion and Decree.)
    Albert P. Garland, of Shreveport, attorney for plaintiff, appellee.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   ODOM, J.

This suit is for $35,545. It is alleged that plaintiff is the owner of a certain 10 acres of land on which he granted defendant an oil lease under which he retained a one-eighth royalty interest; that defendant drilled a well on said land which produced, over a given period of time, 5,000 barrels of oil worth $5,000, one-eighth of which belonged to plaintiff, and that defendant sold the entire output of the well and failed to account to plaintiff for his share of the proceeds, except a small payment of $80.

The $35,000 is alleged to be due plaintiff as damages due to defendant’s having drilled two wells on his own land which adjoined plaintiff’s land, defendant’s wells, it is alleged, having produced oil valued at $70,000, one-half of which plaintiff claims was drained from under his land.

Defendant filed exceptions of no cause and no right of action and pleas of estoppel and res adjudicata, which exceptions and pleas were overruled by the court. The defendant answered with reservations, the case was tried and the following judgment rendered:

“This cause being regularly tried, argued and submitted, because the law and evidence are in favor thereof, and for reasons orally assigned:

“IT IS ORDERED, ADJUDGED AND DECREED, that plaintiff, Loran C. Swope, have and recover of the defendant, J. L. Holmes, the full sum of ninety-eight and no/100 dollars ($98.00), with legal interest from judicial demand herein made.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all other demands of said plaintiff are hereby rejected.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, J. L. Holmes, pay all costs of this suit.”

This judgment was rendered on March 8, 1929, and the minutes of the Court of the same date recite:

"Defendant through counsel asks and prays for a suspensive and devolutive appeal to the Circuit Court of Appeals at Shreveport, Louisiana, and asks the Court to fix the bond and the return date. Let the appeal be granted as prayed for, returnable to the Circuit Court of Appeals, Second Circuit, at Shreveport, Louisiana, on or before May 4th, 1929.”

It is clear that this Court is without jurisdiction. The amount involved originally and the amount in dispute at .the time the case was finally submitted in the lower court is far beyond our maximum jurisdiction in such cases. Defendant has appealed to the wrong court. The Supreme Court, and not this Court, has jurisdiction.

We shall not dismiss the appeal, but by authority of Act 19 of 1912, page 25, we transfer the case to the Supreme Court.

ORDER

It is hereby ordered that this case be transferred to the Supreme Court, and that defendant be and is hereby granted forty-five days from this date in which to (perfect his appeal in that court; the costs of appeal to this court to be paid by appellant.


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    No. 3634
    Second Circuit
    PETOSIA v. SEMPLE
    (January 31, 1930. Opinion and Decree.)
    Earl E. Kidd, of Winnfield, attorney for plaintiff, appellee.
    T. F. Hunter, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

On October 5, 1928, plaintiff transferred to defendant a lot and improvements thereon, situated in the town of Winnfield, in consideration of a secondhand automobile, and on March 16, 1929, the present suit was instituted to rescind the transfer, on the ground of lesion beyond moiety, and defendant appeals from a judgment in favor of plaintiff.

The action is based on the provisions of article 2665, Civ. Code, which provides that “The rescission on account of lesion beyond moiety, takes place, when one party gives immovable property to the otner in exchange for movable property; in that case, the person having .given the immovable estate may obtain a rescission, if the movables which he has 'received, are not worth more than the one-half of the value of the real estate.”

In support of the action, plaintiff called three witnesses, who estimated the value of the immovable property from $700 to $1000, while defendant called three witnesses, who fixed its value at from $250 to, $400; and the evidence establishing that the automobile was worth $250, appellant urges that the evidence did not establish that the immovable property was worth in excess of $500.

The trial court was familiar with the property, and in a written opinion, he stated that the witnesses called by plaintiff to establish the value of the immovable property were better informed as to its value than those called by defendant, and that such was the case is, we think, very clearly indicated by the record, and unless we should take the average of the values fixed by the witnesses as the price of the property, as suggested by counsel, it is clear that the value of the immovable property was in excess of $600, the valuation fixed by the court.

When there is a wide range in the values placed upon property by witnesses who are equally competent to fix the value, it may be said that the evidence indicates a degree of speculation, and that none of the estimates may be accepted as fixing with legal certainty the value of the property, and that the value cannot be fixed by taking the average of the estimates; however, from our review of the record we find that the witnesses who were called by the plaintiff were more familiar with the value of the property, and we are of the opinion that the finding of the trial court that the immovable property was worth $600 is supported by the preponderance of the evidence, and that it was thus worth more than double the value of the movable property, and the judgment is affirmed at defendant’s cost.


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    No. 3663
    Second Circuit
    YOUNGER v. RED RIVER & GULF R. R.
    (January 31, 1930. Opinion and Decree.)

      K. Hundley, of Alexandria, attorney for plaintiff, appellant.
    Hakenyos, Provosty & Staples, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This is an action to recover damages to an automobile alleged to have resulted from the negligence of defendant in permitting a highway crossing on its line to become in a bad state of repair, and plaintiff appeals from a judgment rejecting his demands.

Plaintiff alleged that there were holes and ruts in the crossing, and that as the automobile was being driven over the crossing, and after the front wheels had passed both rails of the railroad track, the car had suddenly dropped down onto the rails, causing the damage; and in answer to the suit defendant first pleaded a general denial, and in the alternative contributory negligence.

The accident was alleged to have occurred on December 11, 1928, and while witnesses called by plaintiff stated that the damage had resulted from the car suddenly dropping onto the rails, as alleged by plaintiff, the witnesses, of whb'm there were several, apparently did not pay any attention to the condition of the crossway, as they were unable to state whether a plank on the crossing had given away under the weight of the car, or whether the wheels had fallen into ruts or holes on the crossing, and, accepting the statement of the plaintiff’s witnesses, who were the only ones who claimed to have known of the accident; it is impossible to determine what was the specific defect in the crossing which could -have caused the damage.

Defendant was not advised of the alleged accident, or of any claim of damages, until about February 9, 1929, at which time an inspection was made of the crossing, when it was found to be in good condition, and it was further established that the crossing had not been repaired in the meantime, and witnesses were called by defendant who stated that they had used the crossing at about the time the accident is said to have occurred, and that it was in a good state of repair at that time, and it was also shown that the crossing was inspected from time to time by defendant, and that no one had made any complaint of its being in had condition.

The burden of proof was on the plaintiff to establish that the damage claimed was caused by a defect in the crossing, and we are of the opinion that the evidence failed to establish that there was any defect in the crossing, and the judgment is affirmed, at plaintiff’s costs.


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    No. 3668
    Second Circuit
    BARNIDGE v. CAPPEL MOTOR CO. ET AL.
    (January 31, 1930. Opinion and Decree.)

      Overton & Hunter, of Alexandria, attor- i neys for plaintiff, appellee.
    F. B. Cappel, of Alexandria, attorney for defendants, appellants.
   DREW, J.

Plaintiff sues the Cappel Motor Company, a commercial partnership, and each member of said partnership, alleged to be George Hollingshead, Wm. Morros, and Curry Cappel, in solido, for rescission of contract of sale of an automobile, and for the return of the purchase price, amounting to $895, with 5 per cent interest thereon from August 30, 1926, until paid, and for the additional amount of $100, with 5 per cent interest thereon from judicial demand until paid, for loss of time for 10 trips to defendant company’s place of business for repairs on said car.

Plaintiff alleges the car was represented to him as a new car and in good mechanical condition; that he purchased the car, of the Overland-Whippet make, on August 30, 1926, and soon thereafter various mechanical defects appeared, and the operation of same became so difficult as to make it necessary for plaintiff to carry said car to defendants to ask for adjustments and repairs; that he had to travel a distance of 80 miles, going and coming, each trip he made, leaving his business; that the car was at all times unsuitable and defective and failed to serve plaintiff as a new car would and should have done; that on May 15, 1927, plaintiff discovered that the car he bought for a new car was in fact a used or secondhand car and had been sold to another party before he purchased it, and that defendants had knowledge of this fact at the time the sale was made to plaintiff; that he would not have purchased the car if he had known it was a secondhand car; and alleging misrepresentation and fraud on part of defendants and their agents. He further alleges that, as soon as he discovered that he had bought a secondhand car, he took it to defendants and tendered it to them and demanded the return of the money paid by him for the car, and said tender was refused.

All defendants, with the exception of Curry Cappel, answered plaintiff’s suit alleging that the car sold to plaintiff was a new car and had never been used as a demonstration car; denying that it had been sold to any other person or that it was mechanically defective; admitting the representations made to plaintiff; admitting the tender by plaintiff of the car and his demand for the return of his money; and denying that plaintiff made numerous trips to defendants’ place of business to have the car repaired.

The case went to trial on these issues, and there was judgment in the lower court for plaintiff against all defendants, except Curry Cappel, for the amount prayed for by plaintiff, and rescinding the contract of sale. Plaintiff did not appeal from the judgment rejecting the demands as to Curry Cappel; therefore the appeal does not involve the liability of Curry Cappel.

The evidence shows that the car was defective from a mechanical standpoint and did not give the service to be expected from a new car; this is borne out by the testimony of the defendants in offering to place a new engine in the car, although this was done after suit had been filed, and their offer to put in new parts before the suit was filed. The preponderance of testimony also shows that the car sold to plaintiff had been previously sold to a Mr. McDonald, and that he operated it for se^eral days and returned it to defendants because it did not come up to the representations made him by defendants. McDonald testified that the motor number of the car he bought was 96-3243, which is the same motor number of the car purchased by plaintiff; he described certain broken wires and scratches on the motor meter of the car he purchased and returned, and these same broken wires and scratches are found on the car of plaintiff; this testimony is corroborated by several witnesses. McDonald accounted for his knowing the motor number for so long a time after he had owned the car by stating that he had partially filled out an application for license and had placed the motor number in the application and had same on file in his shop.

Defendants deny that they ever sold this car to McDonald, but admit that they left with him on trial a car of same make and similar in every respect, and that McDonald returned the car to them several days later, and they immediately sold it to a man in St. Landry parish, on credit; that a chattel mortgage was taken and placed of record in St. Landry parish; that they later got the car back from the St. Landry man and sold it to a lady in Avoyelles parish, on credit, and took a mortgage and placed it of record in Avoyelles parish. But they did not offer the chattel mortgage in evidence, which would have conclusively shown the motor number of the car they claimed to have left with McDonald. It would have at least contradicted the testimony of McDonald in respect to the motor number of the car he acquired from defendant. His testimony on that point is. nowhere contradicted.

“When effective proofs are within the reach of a party and he fails to produce them, a presumption is raised that they would, if produced, make against him.” Johnson vs. Marx Levy & Bro., 109 La. 1036, 1043, 34 So. 68, 71; Pruyn vs. Young, Sheriff, 51 La. Ann. 320, 25 So. 125.

“Where one of the parties to a suit has more means of knowledge concerning a matter to be proved than the other, the onus is on him.” Bowman vs. McElroy, 15 La. Ann. 663; Crescent City Ice Co. vs. Ermann, 36 La. Ann. 841.

“Where a certain species of evidence is conclusive on the point, the failure to produce it by the party on whom the burden of proof devolves, carries with it the presumption that it does not exist.” Succession of Hubee, 20 La. Ann. 97; Succession of Lampton, 35 La. Ann. 424; State vs. Jahraus, 117 La. 286, 293, 41 So. 575, 116 Am. St. Rep. 208.

The judge' of the lower court rendered a written opinion in this case and found the facts to be as follows: That the car' sold plaintiff is the same car sold McDonald and returned by him to defendants; that the car had been used and damaged; that McDonald returned the car because it did not come up to representations made to him by defendants herein, and that its condition was known to the defendants when they sold it to plaintiff; that the car was useless, or its use so inconvenient and imperfect that the plaintiff would not have purchased it had he known of its defects; and that it was a used car. The preponderance of evidence supports the facts as found by the lower court.

The facts of the case clearly vitiate plaintiff’s consent to purchase the car which he was induced to believe, through defendants and their1 agent, was a new car and in perfect mechanical condition.

It follows, within the provisions of article 1819, R. C. C., that the absence of consent invalidates the contract and entitles plaintiff to a rescission of the sale and return of the purchase price.

One wishing to rescind the purchase must tender the machine to the seller within a reasonable time or he will lose his right of rescission. But the time within which the right is to be exercised- must be computed from the discovery of the fraud or the defect on which rescission is based and not from the date of sale, and any delay occasioned by an attempt to put the machine in proper working order will not prejudice the right of rescission.

“A false statement as to age or model of a car, made to induce a sale, and relied upon by the purchaser, is a false statement of a material fact, which furnishes ample ground for rescission.” Cockrell vs. Capital City Auto Co., 3 La. App. 385.

In the same case, the court said:

“Where misrepresentations fraudulently or erroneously made by the vendor cause the purchaser to buy that which is different from the thing he intended to acquire, he. may sue for rescission of sale and recover the price, it being plain under such facts that consent, essential to a contract, is lacking.”

This same doctrine is laid down in Violette vs. Capital City Auto Co., 4 La. App. 465; Borden-Aicklen Auto Supply Co., Inc., vs. Mid-City, Inc., 4 La. App. 489; Fernando Roses vs. Patorno, 2 La. App. 292; Colt Co. vs. Garman, 6 La. App. 296; Radio Shoppe vs. Bernard, 6 La. App. 747; Junius Hart Piano House vs. Tauzin, 5 La. App. 495.

The plaintiff made some use of the car while he had it in his possession, and the evidence shows that he used it to go to court in the trial of this case on one occasion; he had it in his possession from the day of purchase, August 30, 1926, until February, 1928, and used it the best he could until that time, and we are convinced that the use he made of the car during this time was sufficient to compensate him for the time he lost in carrying it back to defendants for repairs, and that his demand for $100 for loss of time, consisting of 10 trips to defendants’ place of business, should have been rejected. The evidence of the loss of time, valued at $100, is not convincing.

Therefore it is ordered, adjudged, and decreed that the judgment of the lower court be amended by rejecting the demand for $100 for loss of time from business and as thus amended, it is affirmed. Cost of appeal to be paid by plaintiff and appellee.