text:
    No. 1953
    Second Circuit Appeal
    CRESTON LUMBER COMPANY v. ESTATE OF J. W. COCKERHAM, JR. FOSTER & GLASSELL, LTD., INTERVENOR
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 325.
    An appellee who desires that the appeal bond be corrected should have proper notice, under Section 9 of Act No. 112 of 1916, served on the appellant; otherwise the appeal will not be dismissed.
    ON THE MERITS
    2. Louisiana Digest — Judicial Sales — Par. 23.
    The sheriff in selling logs under fieri facias could deliver no better title than the defendant had. Consequently, where he sold the property of other than the defendant, the sale cannot give good title to the purchaser.
    (Civil Code, Art. 2452. Editor’s Note.)
    3. Louisiana Digest — Sequestration—Par. 1, 24.
    The purpose of this act, Section 3581 of the Revised Statutes, was to require bond of the seizing creditor in all cases where the ownership of the seized thing is claimed by a third person, and that in default of such bond the sheriff shall release the property seized; but there is nothing in these sections, 3579, 3581, of the Revised Statutes to indicate that it was ever intended that if such affidavit was not made the owner would lose his property in case the sheriff finally sold it..
    4. Louisiana Digest — Fixtures—Par. 1, 6.
    As long as the timber was standing on the land it was immovable and was subject. to the mortgage, but as • soon as it was cut and removed it became personal property and'was no longer subject to the mortgage. Judicial mortgage is not a privilege. It does not follow the property which is removed from the real estate on which the mortgage operates.
    5.Louisiana Digest — Execution—Par. 43.
    With very few exceptions, succession property cannot be sold at the instance of a judgment creditor under a writ of fieri facias.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge.
    " This is a suit coupled with a sequestration possession and ownership of logs. 'Plaintiff purchased • logs from the defendant. The intervenor afterwards had these logs sold under a fieri facias as the property of the defendant and intervenor purchased them at the sheriff’s sale.
    There was judgment for intervenor, the defendant not' appearing, and plaintiff appealed.
    Judgment reversed.
    Breazeale & Breazeale, of Natchitoches, attorneys for plaintiff, appellant.
    Scarborough & Carver, of Natchitoches, attorneys for intervenor, appellee.
   ODOM, J.

This suit was brought by plaintiff on February 9, 1923. It alleges that it is the owner of certain cypress timber which it purchased from the Estate of J. W. Cockerham, Jr., on December 6, 1922, at Luella, Louisiana, which logs and timber are alleged to be worth $400.00.

Plaintiff alleges that it paid cash for said logs and that delivery thereof was made at the moment of sale; that said logs were left at the railroad station at Luella, Louisiana, for shipment, where they are at this time; and that the estate of J. W. Cockerham, Jr., or some one unknown to petitioner is claiming the ownership of the said logs and is seeking to deprive plaintiff of its ownership.

Plaintiff asked for and was granted a writ of sequestration under which the logs were seized by the sheriff.

The defendant, the Estate of J. W. Cockerhám, Jr., made no appearance in the case; but on February 19, 1923, Foster & Glassell Company, Limited, intervened in the suit claiming ownership of the said timber by virtue of its purchase through a judicial sale in the suit of Foster & Glassell Company, Limited, versus Mrs. Luella. Cockerham and John H. Cockerham, joint executors of the Estate of J. W. Cockerham, Jr.

Intervenor alleges that it obtained judgment against said executors, had the same property inscribed in the mortgage records of the parish, which recordation, it is alleged, operated as a judicial mortgage on the land on which said timber grew, and that they procured the issuance of a writ of fieri facias under said judgment and had the said timber, which they allege was still the property of the Estate of J. W. Cockerham, Jr., seized, advertised and sold, it becoming the purchaser.

And it especially denies that plaintiff has any valid title to said timber—

“There never having been any valid sale and delivery of the same as against the rights of your petitioner.”

And it especially avers that it is the owner of said timber.

In this court intervenor, appellee, has moved to dismiss the appeal on the ground—

“That the instrument purporting to be an appeal bond is not for any amount but for a blank amount and the court is without authority to speculate as to what amount the principal and surety intended to bind themselves for or whether they intended to bind themselves in any amount whatever.”

ON MOTION TO DISMISS.

The appeal bond found in the record is signed by the Crestón Lumber Company as principal and by D. W. Breazeale as surety and is properly filled out, except for the amount, which is left blank.

Appellee moves to dismiss the appeal on that account.

Act No. 112 of 1916, is an act to regulate the form and effect of bonds furnished in all judicial proceedings and—

“To provide for the correction of errors, inaccuracies and omissions in such bonds.”

Section 2 of the Act provides—

“That whenever any litigant in this state shall have furnished in connection with any judicial proceeding a bond and surety, and the said bond is insufficient in amount or incorrect by reason of errors or omissions therein, such litigant shall have the right to correct such insufficiency, error or omission in the court of original jurisdiction * * * .”

Section 3 of the Act provides that the adverse party or any party in interest who claims that the bond given in such case is insufficient as to form or substance, etc., must have a notice to that effect served by an officer, and the party who furnished the bond shall have two days in which to correct the error or furnish new or additional bond.

Section 8 provides that the provisions of the act shall apply to bonds in cases of appeal; and Section 9 reads as follows:

“That no appeal shall be dismissed, on account of any . error in the amount of the bond or. for any inaccuracy or omission in the bond until the party furnishing such bond shall have failed to correct the error * * * as herein above provided.”

If the appellee in this case desired that the appeal bond be corrected, it should have served proper notice on the appellant; otherwise the appeal will not be dismissed, under the plain provisions of the cited and quoted act.

See—

Lampton Realty Co. vs. Kerr, 154 La. 843, 98 South. 266.

Succession of Huxen, 149 La. 62, 88 South. 687.

Bilich vs. Mathe, 149 La. 484, 89 South. 628.

ON THE MERITS.

There is no- appearance in the suit by way of answer by the Estate of J. W. Cockerham, Jr.

John H. Cockerham, who is co-executor of the said Estate with his mother, Mrs. Luella Cockerham, was called as a witness on behalf of plaintiff, the Crestón Lumber Company.

He testified that, acting as executor of the estate, he had sold the timber involved in this suit to the Crestón Lumber Company, plaintiff herein, and that the purchaser had paid the price thereof, and, in substance, that he considered the timber the property of the plaintiff.

Therefore the only question before us is, whether the timber is owned by plaintiff or the intervenor; for, as stated, the defendant makes no claim to the ownership of the property but, on the contrary, one of the two executors appears as a witness and testifies that the property was sold to the plaintiff and that the estate has no further interest therein.

The undisputed facts are, that the timber involved grew on land belonging to the Estate of J. W. Cockerham, Jr.; that the executors of this estate had the timber cut and removed to the railroad right of way at Luella in the months of July and August, 1922, in order that the same might be shipped when sold; that on December 6, 1922, John H. Cockerham, one of the executors of the said estate, representing the estate and with the concurrence of his mother, the other executor, sold said timber to the Crestón Lumber Company for $370.00, cash, and delivered the same to the purchaser on the railroad right of way at Luella, where said timber was at the time; of the sale; that the purchaser took possession of said timber by marking and branding the same; that the purchaser made arrangements with said John H. Cockerham to load said timber on the cars, for which service Cockerham was to be paid, as soon as cars could be obtained; and that timber was not shipped out because cars could not be obtained; and that subsequent thereto, on January 5, 1925, the intervenor procured the issuance of a writ of fieri facias under its judgment against Mrs. Luella Cockerham and John H. Cockerham as joint executors of the Estate of J. W. Cockerham, Jr., and that on the same day the sheriff seized under said writ the said timber as the property of the Estate of J. W. ‘ Cockerham, Jr., and advertised and sold the same to intervenor, Foster & Glassell Co. Ltd., for the sum of $100.00, which amount, after deducting costs, was credited on the writ.

It will therefore be seen that the plaintiff claims ownership' of the timber and logs in this suit by virtue of its purchase thereof from the executors of the Estate of J. W. Cockerham, Jr., on December 6, 1922, and that the intervenor claims the same by virtue of its purchase of the same at sheriff’s sale under a writ of fieri facias issued in the suit of Foster & Glassell Co., Ltd., against the Estate of J. W. Cockerham, Jr.; the intervenor’s purchase of said timber at said sheriff’s sale being subsequent to plaintiff’s purchase from the executors.

Counsel for intervenor, in brief, lays special stress upon the fact that, as he says plaintiff had notice that the timber was being advertised and sold and took no steps to prevent the sale, and he urges that its. failure to take steps to stop the sale has' cut it off from now asserting ownership of the timber.

We think it by no means clear under the-testimony in this case that the plaintiff had knowledge that the timber had been seized and was about to be sold. Mr. - Peel, of the plaintiff company especially denies, as a witness, that he had knowledge that the- logs were being advertised and sold, and says that he knew nothing of intervenor’s suit or proceedings to have the logs seized and' sold until about' the time of or after the sale.

His testimony on this point is a little conflicting. However, we think he finally makes it clear that he knew nothing of the contemplated sale until about thé time' he consulted his attorney with reference to' what steps to be taken in order to gain possession of the timber, and the testimony shows that that was about the 8th of February, 1923, a short time after the logs and timber had been sold 'to intervenor.

But we think it immaterial whether he did or did not have such knowledge. The intervenor is relying on the sale made to it by the sheriff under its writ of fieri facias. The logs and timber were seized and sold as the property of the Estate of J. W. Cockerham, Jr.. It is evident that the sheriff could sell and deliver to the intervenor no better title to the logs than the Estate of J. W. Cockerham, Jr., owned.

No one can convey any greater right to a thing than he has.

C. C. 2452.

This applies to sheriff sales as well as conventional sales. The sheriff could seize and sell to intervenor nothing, more than the Estate of J. W. Cockerham, Jr., owned. His sale conveyed to intervenor whatever title in the timber was owned by the Estate of J. W. Cockerham. Jr.; no more. If the plaintiff owned the timber at the time it was seized and sold, he owned it after the sale.

The question whether an owner of a chattel who stands by and sees it sold under judicial process to an innocent purchaser is estopped to assert his ownership to the prejudice of such purchaser, is not presented here for our decision. We are deciding this case on the facts presented.

The facts do not convince us that the intervenor is an innocent purchaser. It had knowledge throught its agent, Baker, and through its attorney, Scarborough, prior to the sale to itself, that the timber had been sold to plaintiff.

On January 29, 1923, John H. Cockerham, one of the executors of the Estate of J. W. Cockerham, Jr., wrote to J. W. Payne, sheriff of the parish of Natchitoches, that J. W. Peel of the Crestón Lumber Company had on that date requested him to load - said logs for shipment and that said logs were sold to Peel on December 6, 1922, and paid for by his check, the amount being $370.00. He says in the letter, and it is not denied, that he informed Mr. Scar-. borough, attorney for intervenor, of that fact, and he says — •

* * * but as I have stated above do not belong to the estate having been sold by them on Dec. 6.”

On the trial of the case Mr. Baker who, we understand, represented intervenor, testified that he saw this letter. Therefore this intervenor is not an innocent purchaser. It knew that the Estate of J. W. Cockerham, Jr., through its executors or one of them had sold these logs and had been paid for them. This letter is dated January 29, 1923, and the logs were sold several days after — February 3rd.

Intervenor urges the view that it was plaintiff’s duty to have some one make affidavit that it owned the 1bgs seized and about to be sold. We presume counsel has ;in mind Act 37 of 1882, page 49, which 'provides that in all cases where sheriffs are required to seize property claimed liy third pérSóns" as owners it shall and blay he lawful for such claimants to demand a bond "of indemnity of the plaintiff ¡Conditioned 'for the payment of whatever sum Such' claimants may be damaged on account of such' seizure in ease they should be 'adjudged owners of the thing; provided tMat before ‘ obtaining such bond they shall iiiake affidavits that they are the owners, setting forth all the facts on which their ownership rests.

This is no# section 3579 of the Revised Statutes.

Section 3581 of the Revised Statutes provides that in case the seizing, creditor fails to give such bond then it shall be lawful for the sheriff to deliver up said property to the person in whose possession it was at the time of the seizure.

We think it perfectly evident that the purpose of this act was to require bond of the seizing creditor in all cases where the ownership of the seized thing is claimed by a third person and that in default of áuch bond 'the sheriff shall release the property seized; but there is nothing in these sections of the Revised Statutes to indicate that it' was ever intended that if such affidavit was not ' made the owner would lose his property in ease the sheriff finally sold it.

But even if that were the law, it is not established to our satisfaction that plaintiff had notice that its property had been seized and- wá's about to be sold.

In J. W. Cockerham’s letter to the sheriff dated January 29th, he stated that Mr. Peel of the Crestón Lumber Company was-to See him On that date and instructed him to load out the cypress logs; but he does not say" that he told Peel the logs were then under seizure. Peel swears that he -did' not know it.

Counsel for. intervenor contends, in brief, .that at the .time the logs were seized under its w.ri-t of; fieri facias, the logs were still on the land owned by the Estate of J. W. Cockerham, Jr., and that they were subject to its judicial mortgage resulting from the recordation of its judgment against the executors.

There is no testimony in the record that the logs we,re on land belonging to the Estate when seized and there- is no suggestion that they were, except in counsel’s brief.

On the contrary, -there is testimony that they were at the railroad station at Luella, and Cockerham says they were on the railroad right of way. “The logs were on the railroad siding.”

Under these conditions they were no longer subject to intervenor’s judicial mortgage. A mortgage affects only immovable property.

C. C. 3281.

As long as the timber was standing 'on the land it was immovable and was subject to the mortgage,' but as soon as it was cut and removed it became personal property and was no longer subject to the mortgage. A judicial mortgage is not a privilege. It does not follow the property which is removed' from the real estate on which the mortgage operates.

Weil vs. Lapeyre, 38 La. Ann. 303.

See, also: Citizens Bank vs. Knopp, 22 La. Ann. 117.

Also: Meyer vs. Frederick, 26 La. Ann. 537.

But intervenor did not seize the property on the ground that it had a mortgage on it and in order to have it subjected to its rights. The logs were seized as the property of the Estate of J. W. Cockerham, Jr. Intervenor is ignoring altogether the sale which the executors of this estate made to the plaintiff. It has no right to do that.

Apparently all parties were in good faith. The executors needed money to pay interest on a loan.' They applied to the. holders of the mortgage' for permission to sell the timber and obtained it.. Presumably they used tbe money, obtained for the timber for tbe payment of interest. It is true that tbe executors did not apply to intervenor for permission to sell the timber, and tbe fact that they applied for permission to sell tbe timber from other mortgage creditors is cited to show good faith on their part.

The purchaser, we think, was in entire good faith. The logs which it bought of the executors were found by a representative of the plaintiff on the railroad right of way on December 6, 1922. They had been cut and removed from the land of the executors in July or August of the same year. Mr. Peel, the representative of the plaintiff, ascertained that the logs belonged to the Estate and it seems went to Mrs. Luella Coekerham, one of the executors, to purchase the timber. He was advised by her to wait until the arrival of her son, who would handle the matter, and upon his arrival the sale of the logs was agreed upon. The purchaser paid the price and took possession of the logs.

In all of intervenor’s proceedings it has not attacked the sale which was made by the executors to the plaintiff in this case. Intervenor has merely ignored the sale. In our opinion it has no right to do that.

But suppose it be conceded, which is not the case, that there was no sale to the plaintiff of the property in question, and that the same belonged to me Estate or J. W. Coekerham, Jr., on the day it was seized by the sheriff under the fieri facias, even then intervenor had no right or authority under the law to seize and sell it.

Succession property cannot be sold at the instance of a judgment creditor under a writ of fieri facias except, possibly, in exceptional cases.

See: Succession of Simpson vs. Bulkley, 140 La. 589, 73 South. 691, where the whole matter is discussed by the organ of the court and all the authorities cited and many of them quoted. The exceptions to the general rule are there noted.

The plaintiff purchased the timber in controversy in good faith. The .sale was complete. The price was paid and delivery was made. The executor says that the sale was made in order to realize money with which to pay interest on a debt due the said Estate and presumably the money was used for that purpose. Under those conditions no harm could possibly come to any creditor on account of the sale. The Estate of J. W. Coekerham, Jr., has not repudiated the sale, nor has any one attacked it.

For reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Crestón Lumber Company, and against intervenor, Foster & Glassell Company; Limited, decreeing that the plaintiff is the owner of the said timber and entitled to the possession thereof; and it is ordered that the writ sued out be maintained, and the sheriff of the parish of Natchitoches be ordered to deliver the logs seized under the writ of sequestration in this case to the plaintiff. All costs to be paid by intervenor.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2072
    Second Circuit Appeal.
    LOUISIANA RAILWAY & NAVIGATION COMPANY v. JAMES C. COPELLAR
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 135; Evidence— Par. 58.
    One who desires to escape liability for the payment of a draft with bill of lading attached for goods shipped, on the ground that the shipment arrived too late has the burden to prove that the delay in the delivery was caused either by the shipper or the railroad company.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Judge.
    This is a suit for the recovery of the price of a shipment which was erroneously delivered before the draft which was attached to the bill af lading paid. There was judgment for the defendant and plaintiff appealed.
    Judgment reversed.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    J. O. Gunter, of Natchitoches, attorney for defendant, appellee.-
   ODOM, J.

Plaintiff sues defendant to recover the sum of $101.20, and alleges as a cause of action that on October 24, 1917, D. I. Bushnell & Co., of St Louis, Missouri, shipped from St. Louis, Missouri, three sacks of clover or alfalfa seed consigned to the shipper’s order at Grappes Bluff, Louisiana, with instructions to notify J. C. Copellar, said shipment to be routed over plaintiff’s line of railroad; that the consignor drew on said J. C. Copellar for the price of the shipment, which was $101.20, with bill of lading attached, the intention being that the defendant would pay the draft, obtain the bill of lading and the goods from the plaintiff upon presentation of the bill of lading. And it alleges that through error its agent, on November 1, 1917, delivered the shipment of goods to defendant without requiring the bill of lading, that the defendant thereby obtained possession of the goods without paying the draft and has never paid the vendor the price of the goods; and that On account of the said error on the part of its agent it became responsible to the owner for the loss occasioned by said erroneous delivery and has been compelled tó pay owner the amount of the loss, $101.20.

Defendant 'answered admitting that the alfalfa seed was shipped to him by Bushnell & Co., as alleged, but especially alleges that the said seed were ordered through J. B. Bateman, Parish Demonstration Agent, to be delivered not later than October 1, 1917, and that said shipment was not attempted to be delivered to him until November 1, 1917, and that he had no use for the seed when they arrived and that he refused to accept said seed because of the failure to deliver the same before that time and he pleads that he notified the conductor on the plaintiff’s road before he attempted to leave said seed at Grappes Bluff that he would not receive them. He interposed in his answer pleas of prescription of one, two and three years.

The trial in the lower court resulted in judgment for the defendant rejecting plaintiff’s demand, and plaintiff has appealed.

Defendant is answer interposed pleas of prescription one, two and three years; but those pleas seem to have been abandoned as they were not referred to in oral argument or in counsel’s brief. However, we will state that we do not think this cause of action is governed by the prescription of either one, two or three years but is governed by that of ten years.

ON THE MERITS.

The seed in question were ordered from B. I. Bushnell & Co. of St. Louis, Missouri, by defendant through J. B. Bateman, the Parish Demonstration Agent for Natchitoches parish. The testimony makes it clear that the defendant constituted said Bateman his agent for the purpose of ordering the seed. Defendant sdys in answer and as a witness in his own behalf that he ordered the seed in September to be delivered October 1, 1917, The shipment •of said, seed reached Grappes Bluff in Natchitoches parish on November 1, 1917, .and were on that date placed on a platform connected with a store operated by-James J. Copellar, son of the defendant.

Defendant in answer and as a witness ,in his own behalf says that he refused .the. shipment because it arrived too late. ■.He does not say, however, that he could .not have used the seed in November and December, but he says that Bateman, the Demonstration Agent, advised him to experiment by planting the seed in October.

Our view is that he had ho right to refuse the shipment and that he is bound for the price ■ of the goods. If he. desired to escape liability on this order on account of the fact, as he alleges, that the shipment arrived too late, the burden was upon him to show that the delay in the delivery was caused either by the shipper or the railroad company. But he has failed to do this.

We are inclined to doubt the seriousness of defendant’s defense to the suit, that is, that he declined the shipment because it was unduly delayed. There is 'no doubt' that he at first claimed that he declined to receive the seed because they were wet. He consulted counsel about the matter and told them that the seed were wet and for that reason he did not want them. That is shown by counsel’s letter to the plaintiff dated June 13, 1820. In fact defendant admits on cross-examination that he first stated that his reason for refusing the shipment was that the seed were wet and damaged.

The fact that plaintiff made the payment as alleged is not denied and it is not disputed that if defendant was legally bound for the seed the plaintiff should recover the amount paid out by it in the manner alleged in the petition and as shown by the testimony.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and ] avoided and it is now ordered that plaintiff, Louisiana Railway & Navigation Company, do have judgment against and recover from the defendant James C. Copellar the full sum of one hundred and" one and -20-100 dollars with' legal interest- thereon from November 12, 1920, and all costs of this suit.


author: WESTERFIELD, J.

text:
    No. 9942.
    Orleans Appeal.
    HENRY C. SCHAUMBURG v. BEN GRISHMAN, Appellant.
    (March 16, 1925, Opinion and Decree.)
    (April 13, 1925, Rehearing Refused. [Not Final]).

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 128.
    Where the amount in dispute is in excess of the maximum amount of the jurisdiction of the Courts of Appeal fixed by the Constitution and Act 19 of 1912, the Court of Appeal will order the case transferred to the Supreme Court.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    D. H. Theard, attorney for plaintiff add appellee.
    F. A. Middleton, Marx & Levy, attorneys for defendant and appellant.
   WESTERFIELD, J.

Our attention having been directed to the fact that in this case the amount in dispute,.is in excess of the maximum amount of. our jurisdiction as fixed, by the Constitution, in exercise. pf the authority conferred, upon us upder the provisions of Act 19 of 1912, it is ordered that the case be transferred to the Suppepie Court of Louisiana.


text:
    No. 1967
    Second Circuit Appeal
    WILLIAM W. TODD v. POLICE JURY OF THE PARISH OF BIENVILLE
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. — Louisiana Digest — Roads, Bridges and Ferries — Par. 4; Damages — Par. 64.
    Where a public road is illegally run through private property, the owner can recover not only for the land so taken but also for the timber taken and the damage to land remaining where such land is segregated from th balance of the farm by the road.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Third Judicial District Court, of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a suit to recover damages sustained to land by illegally running a public road through it.
    There was judgment for plaintiff and both plaintiff and defendant appealed.
    Judgment increased and affirmed.
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellant.
    W. D. Goff, of Arcadia, attorney for defendant, appellee.
   ODOM, J.

This is a suit against the parish of Bienville to recover $300.00 for a strip of land alleged to be 1000 feet long and 80 feet wide and an extension of said strip of about 300 feet long by 60 feet wide and containing, it is alleged, three acres, and the value of the timber thereon, and for $75.00 damage to other land.

The plaintiff alleges that the Police Jury of. said parish appropriated this land for a.pubic road. He alleges that he owned SE¼ of, SE¼ of Section 23 To.wnship 18 North Range 3 West, situated in Bienville -parish, Lpuisiana, a,nd . that, without his permission and over his protest the Police Jury of said parish has caused to be built ■a, public road diagonally across the said forty .acres of land and has appropriated the three acres in said purpose, and i-.he values the land at $50.00 per acre.

He further sets up that there was timber on the three acres of land appropriated for. the roadway worth $75.00 and that about three acres of land is cut off from the main tract by the road and on account of its being segregated from the main tract this thrée acres is worth only $25.00 per acre, whereas it was worth $50.00 per aere before it was so cut off and segregated by the building of said public road, and that he has therefore been damaged $75.00 on that account. Making a total damage and loss sustained by him of $300.00, for which amount he asks judgment.

The Police Jury answered denying any indebtedness whatever to plaintiff and praying that the demands be rejected.

There was judgment in the lower court for plaintiff in the sum of $112.50 and interest at 5% from judicial demand, from which judgment plaintiff and defendant both appealed.

The plaintiff prosecutes this appeal for the purpose of having the amount of the judgment increased to the amount sued for..

It is not disputed that the Police. Jury of Bienville parish caused a public road to be constructed across plaintiff’s land without his permission and over hjs protest.

Section 3369 of the Revised Statutes prescribes the method to be pursued when new roads are to be opened by the 'Police Jury, but the method prescribed was. not followed in this case. It appears that those in charge of the road building took possession of plaintiff’s land, cleared • the' right of way and built the road over- plaintiff’s protest. - ... ; . -: :

Defendant did not in oral argument nor does it in brief contend that tbe Police Jury is not liable for whatever loss or damage' plaintiff sustained on account of •the building of this road across his property. ■

Counsel in brief states the issues before the court to be as follows:

“The question presented for determination by the court is purely a question of fact, and resolves itself into a proposition of whether or not the plaintiff has made proof of his demands which would warrant the court in rendering judgment in his favor; and, if so, what amount is he entitled to recover under the testimony.”

Plaintiff estimates the land taken for the roadway at three acres and values it at $50.00 per acre. He testified that the area taken for the roadway was approximately three acres. Mr. Hammer says the acreage would be “probably two or three acres”. We find no other estimate in the record. However, we note that plaintiff sets out in his petition that the right of way taken is 80 feet wide for a distance of 1000 feet and 60 feet wide for an additional distance of about 300 feet. According to these figures, the amount of land taken for the roadway is two and one quarter acres. It is very probable, we think, that these figures are correct, or approximately so, and we shall adopt them in arriving at the acreage taken for the roadway.

Plaintiff says that the portion of land cut off from the main tract is three acres. This is not contradicted and counsel for defendant says in brief that this estimate is probably correct.

Plaintiff testifies that there were growing on the land taken for the roadway 44 gum trees, 6 of which Were 36 inches in diameter at the stump; 67 pine trees, 6 to 10 inches in diameter at the stump, ,6. oak trees, . from 12 to 24 inches in diameter at the stump, and 33 oak-trees from 6 to 8 inches in diameter at' the stump; or 150 trees in all. He places a value of $75.00 on these trees.

Counsel for defendant calls attention to the fact that plaintiff testified he- had sold the timber from this land. Plaintiff’s testimony is that he sold the merchantable timber on the land in 1913 and that the purchaser did not cut it all but left some for logs. The fact that all the merchantable timber was removed from the land in 1913 by no means proves that there was no timber of value on the land nine years ■later.

There is no testimony in the record as to the value of the land and trees taken and the damages sustained on account of the segregating of the three acres from the main body of the land except that of plaintiff himself. He estimated the value of the trees at $75.00 and said the land cut off by the road was worth $25.00 per acre less than before the road was built. His testimony on the question of values and damages is not contradicted.

Defendant’s counsel said in oral argument and says in brief that plaintiff fixed no value on the land taken for the roadway. It is true that he did not say, in so many words, that the land was worth $50.00 an acre, but in speaking about the three acres cut off from the main body of the land he said it is now worth $25.00 per acre against $50.00 per acre formerly. If this land was worth $50.00 per acre there is no reason to assume that the land adjointing it, taken for the road, was not also worth ■ $50.00 per acre.

The testimony as a whole satisfies us that the land is well worth $50.00 per acre.

As above stated, plaintiff’s testimony on all these points is uncontradicted, and we have nothing except his testimony to guide us in fixing the amount to be awarded him. Other witnesses -were called, but none of them were specific as to value. Mr. Hamner testified that he- thought his estimate was reasonable, thereby corroborating plaintiff to that extent.

We think plaintiff should recover $50.00 per acre for two and one quarter acres taken for the highway, $75.00 for damage to the three acres of land cut off from the main body and $75.00 for his timber; making a total of $262.50.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended - so as to read as follows, to wit: It is therefore ordered, adjudged and decreed that plaintiff, William W. Todd, do have judgment against and recover from the Police Jury of the parish of Bienville the full sum of two hundred and sixty-two and 50-100 dollars, together with interest thereon at the rate of five per cent per annum .from judicial demand, which demand was made on April 4, 1922, and all costs of this suit.


author: REYNOLDS, J. CARVER, J.

text:
    No. 2148.
    Second Circuit Appeal.
    MRS. ELLEN GOUGH STEEN AND HUSBAND ET AL., v. LOUISIANA CENTRAL LUMBER COMPANY ET AL.
    (March 30, 1925, Opinion and Decree.)
    (June 6th, 1925, Opinion and Decree on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 1, 2.
    Where the vendee pays the cash consideration and goes into possession of the property, it is a sale even though the act contains the word “bequeath” together with the words, “grant, sell and deliver.”
    ON A REHEARING.
    2. Louisiana Digest — Pleading—Par. 114.
    Where- the- pleadings did not state that the act of sale was null for want of a fixed price and null as a,n onerous donation 'because the value of the land exceeded by one-half the amount paid, the right is reserved to plaintiff to bring a suit against the vendee to show this and demand collection, but this will not affect the rights of third persons who purchased the property if the act in dispute was an act of sale.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of ' Caldwell. Hon. F. E. Jones, Judge.
    Julius T. Long, of Shreveport, and A. Leonard Allen, of Winnfield, attorneys for plaintiffs, appellants.
    Stubbs, Theus, Grisham & Thompson, of Monroe, attorneys for defendants, appellees.
   REYNOLDS, J.

This is a suit' against the Louisiana Central Lumber Company and W. H. Gough to have a transfer from Thomas N. Gough to W. H. Gough on November 14, 1902, transferring certain property for the expressed consideration of $100.00, declared null and void, and to recover from the Louisiana Central Lumber Company judgment for the value of timber bought by the Louisiana Central Lumber Company from W. H. Gough, the value of which is admitted to be $797.50.

There was judgment for the defendants • and plaintiffs have appealed.

Judgment affirmed.

OPINION.

In this case the plaintiffs sue to have decreed null and void the following transfer, to wit:

“State of Louisiana,
“Parish of Caldwell.
“Know all men by these present That I, Thomas N. Gough of the aforesaid Parish and State, party of the first part, do this day grant, sell, bequeath and deliver to W. H. Gough of the same State and Parish, party of the second part, for and in consideration of the sum of one hundred dollars cash, whereof I, T. N. Gough, hereby acknowledges receipt of for the said W. H. Gough his heirs and assigns to hold forever the said tract of land as hereinafter described, being the N% of SE!4, of NE%, Sec. 21 NW%, of SW%, of Section 22, T. 12, N. R. 2 W., La. Mer., containing 159 -69-100 acres, under Sec. -2291 of the Revised Statutes of the United States. *
“Whereof we have affixed our hand and .seal this 14th day of Nov., 1902.
“Witness:
His
"‘J, W. Neal, ' T. N. X Gough,
His Mark
“T. J. X Gough, His
Mark W. H. X Gough,”
Mark”

On the reverse side of the sheet:

“This done and signed before me, a Justice of the Peace for the Parish of Caldwell on this, the 14th day of Nov., 1902.
J. M. Adair, J. P.”
“State of Louisiana,
“Parish of Caldwell.
“Before me, the undersigned authority, this day personally appeared T. J. Gough, who on oath, says he saw the parties to the within and foregoing deed sign the -same for the'.purposes and considerations therein expressed, and on the date therein given; that he and J. W. Neal signed the same as attesting witnesses, and that he now recognizes all the signatures thereto, to be true,and genuine. - -
His
T. J. X Gough.
Mark
“Sworn to and subscribed before me, on this, the 14th day of June, A. D., 1909.
“N. L. Hower,
“Clerk of Court and ex-officio Notary Pub- ' lie: ' ’ “
“Seal of the ‘Clerk of the District Court, Caldwell Parish.
“T. N. Gough
“Deed To
“W. H. Gough.
“Filed -for...record Jany 5th, 1902.
“M. L. Mecom,
“Clerk & Recorder.
.i'Recorded in Not. Book O, folio 13, March IQth, 1903.
“F. H. Mecom,
“Dy. Clk. & Recorder.”

' Plaintiffs, sáy this document was intended by. T. N.. Gough as a donation.

■ The only • word in the above document that tends' to stamp it as a donation is tbe,' word, ‘'‘bequeath’’.. In our opinion this. word was used by the Justice of the Peace’ who wrote the document because of its sounding value and not because of its true meaning. The document must be judged as a whole and not by a single word. The document does say “bequeath”; but it also says “grant”, “sell” and “deliver”, “for and in consideration of the sum of $100.00 cash” “whereof I, T. M. Gough, hereby acknowledges receipt of”.

This document, taken as a whole, we think, clearly indicates that the parties thereto intended it to be a sale. The contracting parties thereto treated it as a sale, for under the evidence the vendee, W. H. Gough, went into possession of the property therein described shortly after the document was passed as owner and remained in possession of it as owner until his vendor’s death in 1923.

In 1909, under the evidence, T. N. Gough, the vendor, W. H. Gough, the vendee, and T. J. Gough, one of the attesting witnesses, went to Columbia, the parish seat, and had the signature to the document duly proven by N. L. Hower, Clerk of the Court. - .

From the date the document was proved, June 14, 1909, the document became, as to' all the world, a recorded deed.

Under the evidence, from the date it was signed, November 14, 1902, it was, as to T. N. Gough and his heirs, a deed translative of the property therein described.

Under it the defendant, W. H. Gough, went 'into possession of the property therein described as owner about 1902 and remained on it as owner until the death of his father, the vendor, in 1923.

Plaintiffs say that the transaction was a donation in disguise. Plaintiffs also contend that the transaction was a simulation. We do not think so, for under it the defendant, W. H. Gough, went into possession of the property now in dispute d'nd lived on 'same as- his home for nearly or quite twenty years before the' 'death óf the vendor, and during all this time no effort wás -made by the vendor to dispossess the -vehdee, W. H. Gough, of his possession as owner.

Viewing the transaction as a sale, we have not found it necessary to pass upon the defense set up by the Louisiana Central Lumber Company.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.

ON APPLICATION FOR REHEARING.

CARVER, J.

The plaintiffs’ petition alleges four- grounds of nullity against the deed in question:

1.' As a donation, it was not in proper form, nor acknowledged, nor made before the proper officer and sufficient witnesses.

2. As a transfer or sale, it appears on its face to bé without consideration, not being á' sale but' an admitted donation, and not having sufficient authentication to authorize its recordation and, in fact, it was a mere simulation, wherein the pretended donee or vendor attempted to place the ' property ' involved in the name of the vendee so that the vendee might hold the office of Police Jury or some such office.

3. That the said pretended donation or transfer was'all-the property that the said vendor or donor had in the world, for which he was paid nothing.

4. That if.it should be held to be a donation, which they deny that it can, then they aver that it should be annulled as to -two-thirds of same.

All of these grounds of attack are predicated on the idea that the deed was without any consideration at. all and, therefore, either a pure simulation - or a ’ pure donation.

The evidence, though, satisfies us that it was neither.'1 Ás -to the charge of simulation, ' the evidence wholly disproves it. Thé transferror bioved off of the land soon after' the deed was signed (or, according’ to some of the witnesses, even befdfe) and never afterwards exercised any dominion over it. The transferee moved on it eitlief before or just after . the transfer and has lived on it ever since, cultivating, improving and paying taxes on it, selling timber from it, and in every way exercising dominion.

As to the charge that it is a donation on its face, this is clearly not so. The deed recites a consideration of $100 cash.

Nor does the proof show it to be a pure donation. Defendant, "W. H. Gough, admits that the $100 recited in the deed was not paid at the time, but says that he paid certain debts of the vendor within about a year afterwards, namely: To Steen, $10, to Jarrell, $37, . to Dillard, $25, and to Rutland ' & Company a mare valued at $75, and $25 out of a bale of cotton sold them for $50. ,,

He further, testifies that he gave his father checks -from .time to time as he; needed things and also paid him $100 at the time the act was re-authenticated. There was testimony to the effect that the Rutland 'debt was only $60 and that, this was paid by a mare belonging to the father. But defendant, Gough’s, testimony as to the other payments stands uncontradicted and was corroborated to the extent at least of proof showing that the father did owe Dillard and Jarrell.

It is not suggested how these parties were or could have been paid except by. defendant, W. H. Gough, to whom the father had transferred all his property.

W. H. Gough’s testimony is also corroborated by T. J. Gough as to payment of the $100 to T. N. Gough at the time the deed was- re-áuthenticated.

As to the 'deed not being properly acknowledged , or -proven up, this, in our opinion, .is immaterial. - There is no question but‘that--T.'-'N. 'Gough signed it: Indeed, the petition so alleges. It was not necessary that it be proven up or recorded in order to bind either T. N. Gough or his heirs.

The fact that it was not passed before a Notary and two witnesses would be ground of .nullity were it a pure donation, but, as said above, we think it was not this.

Of course, if it was a sale, it could be by private act.

These considerations would dispose of the case if it involved nothing but the grounds of nullity alleged in the petition, but in their application for rehearing plaintiffs’ learned counsel contend that the deed is null under articles 1248 and 2444 of the Civil Code, and ask that in the event a rehearing is denied we state how, how much and when the consideration was paid, and why the transfer should not be annulled under these articles.

As to Article 1248, it does not pretend to prescribe a ground of nullity. It reads as follows:

“The advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. ' Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.”

This clearly means that in case of a sale by a father to his son for a low price the son must collate, not the thing sold but the difference between its true value and the price he paid. It clearly implies that the sale shall stand.

Civil Code, 2444, provides:

“The sales of immovable property made by parents to their children may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold,. at the time of the sale.”

In our opinion, the transfer is .not null under this article because we think a price was paid and the proof does not show that it was less than one-fourth of the value of the property. There is very little testimony as to what the property was worth in 1902. T. J. Gough says (transcript, page 58,): “You figure twenty-seven years ago that land wasn’t worth more than two hundred or two hundred and fifty dollars.”

The deed was passed about twenty-two • years before he gave testimony. It may be that in saying 27 years he meant 22 years.

At page 59 he was asked:

“Don’t you know that timber sold for $1.00 a thousand fifteen or twenty years ago — you know land like that was worth $2.50 per acre — you never bought any land for less than that — did you?”

And he answered:

“A man offered me eighty acres for a hundred dollars, but I couldn’t see far enough ahead to know that it would be worth it .to me.”

In 1909 W. H. Gough sold the pine timber on eighty acres for $265 and in 1922 the pine on the other eighty for $100. .

In those years, we know, as a matter of history, that timber was worth more than in 1902, so we are satisfied that the land had little value in 1902 for pine timber.

The proof does not show whether there was much hardwood on it at that time, but we know, too, from history, that hardwood had little value in 1902.

Ben Gough says that McDaniel offered T. N. Gough $500 for the pine. He does not say when this was. McDaniel denies negotiating with T. N. Gough at all, but was not asked whether he offered $500 for the pine to W. H. Gough, hut Me-Daniel’s principal, Central Lumber Company,- afterwards bought the pine, as shown above, for $365; so we think Ben Gough must • b!e ! mistaken as to McDaniel’s having offered $500 for it either to T. N. Gough or W. H. Gough.

,H Gough paid Dillard $25, Jarrell $37, ’ and Steen $10, or a total of $72, within a'' year or so after the transfer. At least,' he so testifies, and it is not disputed! "If he paid nothing on the Rutland debt, the laid would have to have been worth' $28'$' or more 'to come under the principle - in question. But even if the mare given Rutland 'belonged to the father, the undisputed testimony of W. H. Gough is that he" paid' Rutland $25 out of a bale of cotton 'arid'also a further amount afterwards, as well' as further sums not detailed to T. H. G'o'ugh and the $100 at the time of ■ re-áuthentication.

Plaintiffs urge that W. H. Gough’s testimony is not worthy of credence, hut the district judge evidently believed it, and we cannot say he manifestly erred.

On' the whole, in our opinion, the proof falls far short of showing that the land at the time of the transfer was worth four times what W. H. Gough paid.

Plaintiffs also urge that the transfer is void as a sale because no price was fixed. It is true the proof does not show what price ' was -fixed nor does it show that there was-' a fixed price. This ground of nullity was- not alleged in the petition nor was the case tried on this issue. It may be that the witnesses testifying after twenty-one- years failed to state the price from want .of accurate recollection and not from ■the fact that no price was actually fixed at the time. If it be true, though, that none . was fixed, this would not, in our opinion, be a ground of nullity. If for failure to .fix a certain price the transfer was technically defective as a sale, we think, in view of the fact that both of the parties to the transfer unquestionably intended the title to pass it would be good as an onerous donation, unless defective in some other particular than the failure to fix a price.

To the onerous donations, the rules applicable to pure donations do not apply.

Civil Code, 1526, reads as follows:

“In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”

The condition of the proof does not enable us to determine whether the real value of the property at the time of the transfer did or did not exceed' by one-half the charges imposed. If it did, then the rules peculiar to ' donations would, under Civil Code, 1526, apply, and one of these rules requiring donations to be by authentic act the transfer in question would be void because it was passed under private signature; but if the value at the time of the transfer did not exceed by one-half the charges 'imposed, it would not, we think, be null and plaintiffs’ sole right would he to demand collation to the extent that the value did exceed the charges, if it exceeded them at all.

In view of the fact that this question was not raised by the pleadings and the case was not tried on that issue, and because the proof is not sufficient to enable us to decide the question either' way, the right should be reserved to plaintiffs to sue to -annul the act assailed ' in this case on the ground that it was not a sale for want of a fixed price and is null as an onerous donatión because the value of the -land exceeded by one-half the amount paid by W. H, Gough and, therefore, was required to be by authentic act, reserving to the defendant, Gough, also the right to show that a price was fixed. Of course, too, the right should he reserved • to plaintiffs to demand collation, even if ■ ¡ the transfer be valid as an onerous dona-: ■tion, or if it be valid as a sale but at a low price thus giving eollatable advantage to W. H. Gough. These reservations apply, of course, only to a suit against W. H. Gough. The transfer in question not being on its face a donation but a sale, and Central Lumber Company having acted on the faith of its being a sale, plaintiffs’ claim against that company must fail whatever be the truth as to the value of the land in 1902 and the amount paid by W. H. Gough therefor.

With the reservations above mentioned, a rehearing is denied.


author: ODOM, Judge.

text:
    No. 2167
    Second Circuit Appeal
    MISSOURI PAINT & VARNISH CO. v. A. R. McCAMMOND
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 172 173.
    A purchased roof paint from B with the understanding that B’s agent was to apply the paint and paint was not to be paid for until ninety days thereafter provided there were no leaks. A refused to allow B’s agent to apply the paint because B sent the invoice and demanded payment before payment was to be made. Held, the fact that plaintiff B demanded payment previous to the time agreed upon afforded A, no grounds for refusing ,to use the paint or allow B to comply with his contract.
    Appeal from Twelfth Judicial District Court of Louisiana,. Parish of DeSoto. Hon. John R. • Boone, Judge.
    .This is a suit to recover the price of .roof paint . sold and delivered.
    ; Judgment for plaintiff and defendant ap-: ¡pealed. . ,
    Judgment affirmed.
    Lee & Bell, of Mansfield, attorneys for plaintiff, appellee.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant, appellant.
   ODOM, Judge.

Plaintiff sues defendant to recover the sum ' of $330.75 ' and 5 per cent per annum interest thereon from October 9, 1920, until paid, the said amount being the value of four barrels of “Liquid Sealaleak” roof paint alleged to have been sold and delivered to defendant.

Defendant, in answer, denied any indebtedness to plaintiff, but in paragraph three of the answer sets out that on or about September 4, 1920, one of plaintiff’s salesmen called on him and “respondent agreed to purchase the goods described in Article 1 of plaintiff’s petition on the representation made to him by said salesman * * * that the said company would send a man to respondent’s mill at South Mansfield, Louisiana, to direct the application of said paint to the roofs of respondent’s buildings and that respondent would not be asked to pay for said paint until it had been tested satisfactorily on his said buildings.

In paragraph four of his answer defendant says that the above representations were clearly understood between said salesman and. himself and that he would not have placed this order for said paint if said representations and agreement had not been made by the salesman.

And in section five of his answer he alleges that, contrary to said agreement, plaintiff sent an invoice for said goods before they were received by him; and in paragraph six he says that in response to plaintiff’s demands for payment' -he promptly notified plaintiff of the' representations made by its salesman and that he would not have-'received them except under the terms and . conditions under. which he had bought them; and in paragraph seven he says he has not received the goods.

In the District' Court there was judgment for plaintiff for the amount sued for and interest at five per cent from December 1, 1920, until paid, and all costs; from which judgment defendant appealed.

OPINION

It seems that on or about September 4,' 1920, Mr. Myers, who represented the" plaintiff as salesman in that territory, called on defendant for the purpose of. selling him a certain kind of roof paint called “Sealaleak.” Defendant," it seems, told Myers, the salesman, that he needed a preparation for his roof but that he had been “well stung” on such preparations, whereupon Myers made certain representations and guaranties concerning the preparation he was selling, which representations and guaranties, according to defendant’s answer, are as follows:

“That the said company would send a man to respondent’s mills at South Mansfield, Louisiana, to direct the application of said paint to the roofs - of defendant’s buildings; and that respondent would not be asked to pay for the said paint until - it had been tested satisfactorily on his said buildings.”.

On these representations, that is, that a man would be sent by the vendor to supervise the application of the paint to the roof and that defendant would not be required to pay for it until a satisfactory test. was made, defendant purchased four barrels of paint from plaintiff represented Dy Meyers. The order, was promptly sent in by Myers; the goods were shipped from St. Louis about September 9th and reached South Mansfield about September 17th. The freight bill in due course was presented, to defendant by the railroad . company’s agent and was paid by him, .although it appears that defendant had an .arrangement with the railroad's agent by which his freight bills were allowed to accumulate until the ’first of the month, .when they, were all paid with one check, and that defendant did not know that the bill for freight on this paint was included in the batch when he paid it.

However this may be, it is a matter of no importance whether he knew he was paying it or not.

Both plaintiff and defendant seem to have treated this transaction as a completed sale. There were the thing, the price and the place of delivery all agreed upon. "But defendant says that the sale was made under certain terms and conditions as set out in his answer and as set out in the brief of counsel, as follows:

“1. The plaintiff would send a man to defendant’s mill at South Mansfield, La., to direct the application of said paint or roof preparation.
“2. That, after the application of said roof preparation, the defendant would be allowed a period of ninety (90) days to test the preparation to see if it came up to the representations of the salesman before defendant would be required to pay therefor; that if in ninety (90) days there had not been sufficient rain for a complete test, then defendant would be extended further time to fully test the application before being required to pay for said purchase.”

The authority of Myers, the salesman, to bind his company, the plaintiff, to the above stipulations as to the supervision of the application of the paint to the roof and as to postponement of the payment until a thorough test, is not disputed by plaintiff; although, contrary to the agreement, the plaintiff forwarded the invoice of the sale and a bill to the defendant immediately upon shipment; the invoice and bill reaching defendant before the goods reached the depot in 'South' Mansfield, and although plaintiff-■wrote defendant on October 19th making ' demand for payment.

But plaintiff says that Myers did not inform it that the payment was not to be made until the preparation was tried.

On -October 23rd defendant replied by letter to- explain letter of October 19th, calling plaintiff’s attention to the fact that he had purchased the goods with the understanding that they were- not to be paid for until tried. Plaintiff replied to that letter on October 26th setting out, in substance, that the paint was sold under an absolute guarantee that it would stop leaks for six years and that if it did not stop leaks as represented that plaintiff would furnish sufficient material free of charge to bring about the desired result; and it further suggested that the defendant' apply the paint, and if he desired further time in which to make the payment he might have until December 1st. This letter of plaintiff’s was written in reply to defendant’s letter to it, setting out that defendant understood he was to have the paint tried out before paying for it.

But plaintiff does not repudiate its agent’s authority to postpone payment until after trial, nor has such authority ever been disputed, but, on the contrary, plaintiff stated in its letter of October 26th that it would extend the time for payment until December 1st, which, as it stated, would allow sufficient time for the demonstration.

As we appreciate the testimony, there is scarcely any disagreement between Myers, plaintiff’s agent, and the defendant as to the contract. They agree on the essential facts. Myers says that he agreed to supervise the application of the paint to the roof,- guaranteeing it to stop leaks, and agreed that the defendant would not be called upon to pay for it until it was applied and it was demonstrated that it would stop the leaks. This is all that was claimed by defendant.

But defendant seems to have become very much dissatisfied with his contract and refused to allow the paint to be applied to his roofs. He was asked why he refused to use the paint and he replied, “because he had not complied with his contract with me,” and he explains the contract and says that no one came to apply the paint and that payment was -demanded previous to the trial.

The testimony shows that defendant repudiated the transaction before Myers had -an opportunity to apply the paint. He says that he received the invoice for the paint shortly after its date, which was September 9th, and he was asked: “It was then that you refused to receive the paint,” and he answered, “Yes”; and, further, “And you were to have ninety days in which to have paid for it after it was applied?” “Ninety days or six months.” And he explains that it was thereafter that he wrote the letter dated October 23rd.

(Testimony,’ page 24.)

Defendant’s own testimony convinces us that he became offended because plaintiff forwarded the invoice for the goods and demanded payment before the payment was to be made under the contract which he had with Myers, and that he repudiated the contract solely on that account.

Myers made several trips to defendant’s place of business for the purpose of. having the paint applied as per contract. While defendant says in some portions of his testimony that no one offered to apply it, his testimony on page 20 shows that he is not certain about that, as he" refused to swear that Myers did not. appear and offer to apply the paint as per agreement. He says that Myers may have done so; that he will not swear that he did not.

In view of Myers’ positive testimony that he did make several trips to plaintiff’s place of business and offer to apply the paint, and in view of defendant’s testimony that he cannot swear that Myers did not do so, we-must hold that Myers did what he agreed to do looking to the carrying out of the contract as made.

The agreement which Myers made with defendant was binding upon plaintiff in every detail. Myers was plaintiff’s agent, and as representing plaintiff he wont to defendant’s place of business more than once and offered to carry out the contract and reiterated his former statement to defendant that he would not have to pay for the paint until after trial, but defendant refused to permit him to carry out the contract.

The fact that plaintiff demanded payment previous to the time agreed upon afforded defendant no ground for refusing to use the paint on his roofs as per the agreement. He should have stood squarely upon the contract as made by allowing the application of the paint to' the roof and then refusing-payment, even though demanded, until the paint had remained on the roof long enough for its good qualities to be proved as per the guaranties. If, after trial, the paint did not stop the leaks as was represented, defendant would not have been compelled to pay the price. On plaintiff’s demand for payment defendant could have successfully pleaded failure of consideration.

We think it not necessary to cite authorities on this point.

We see no error in the judgment of the lower court and it is therefore affirmed with costs.


author: REYNOLDS, J. CROW, Judge ODOM, J.

text:
    No. 2182.
    Second Circuit Appeal.
    ROBERT PORTER v. J. L. LANCASTER AND C. L. WALLACE as Receivers of the Texas & Pacific Railway Company.
    (March 30, 1925, Opinion and Decree.)
    (November 7, 1925, Opinion and Decree on Rehearing.)
    (December 1, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Estoppel—Par. 26.
    Where one sues A and B but dismissed his suit against B, afterwards filing another suit against B, the one suing is not estopped from prosecuting his suit against A, as A has not been deprived of any legal defenses.
    2. Louisiana Digest — Master and Servant— Par. 160 (i).
    Under the Employers’ Liability Act No. 20 of 1914, Sections 18 and 19, plaintiff may be given judgment for the use and benefit of his minor son under the act where a fair interpretation of plaintiff’s petition would show that the judgment plaintiff wished.
    3. Louisiana Digest — Master and Servant— Par. 156.
    ■ A section hand falling from a- hand-car while returning from work in the same state is entitled to recover under the State Workmen’s Compensation Law and not the federal law.
    ON A REHEARING.
    4. Louisiana Digest — Master and Servant • — Par. 154, 156.
    Where an injury occurs to an employee engaged in interstate commerce the Federal Employer’s Liability Act is controling and a recovery cannot be had under the common law, or under the State Compensation Act.
    5. Louisiana Digest — Courts—Par. 168.
    An injured employee, or in case of his death his- legal representative, when suing under the Federal Employer’s Liability Act may institute the suit in either the .State Court or the proper Federal Court; and when the plaintiff has elected to bring his suit in the State Court of proper jurisdiction the case c,annot ■' he removed to any Federal Court.
    6. Louisiana Digest — Mastér and Servant —Par. 1.54, 156.
    A railway track is an essential and indispensable portion of. the interstate line of railway,, and therefore, any work ,in keeping" up or repairing the railroad ■ track is necessarily work which aided the business of interstate commerce and made the recovery of compensation by the injured employee necessarily under the Federal Employer’s Liability Act.
    7. Louisiana Digest — Master and Servant —Par. 156.
    The Workmen’s Compensation Law, Act 20 of 1914 does not apply to one employed by an interstate railroad who was injured while engaged in the repairing of the track of an interstate railroad, engaged in interstate commerce.
    On appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge
    This is a suit to recover compensation for injuries to a minor son.
    There was judgment for plaintiff and -defendant appealed.
    Judgment amended and affirmed.
    On rehearing its former opinion is set aside and plaintiff’s suit is dismissed with full reservation of all rights to proceed under the Fedei’al Employer’s Liability Act.
    Scarborough & Carver, of Natchitoches, attorneys for plaintiff and appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant and appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this case Rober Porter sues the defendant for damages done to his minor, son, • Joseph Porter who. fell from a handcar and- was seriously injured while" returning from his work as a section ,'hand working on the Texas Pacific..: Railway track exclusively in the Parish of Natchitoches,"■ Louisiana.

The evidence shows that the handcar from which Joseph Port'er feli was used exclusively in transporting section hands working entirely inside of the Parish of Natchitoches, Louisiana, to’ and from their work in the Parish of Natchitoches.

The handcar was in charge of and was being operated by section hands who worked exclusively in the Parish of Natchitoches, Louisiana.

It is shown that the Texas & Pacific Railway was operated by a railway company which runs trains from New Orleans, Louisiana, to El Paso, Texas.

OPINION.

Defendants excepted to plaintiff’s suit":

I.

That he was estopped because of the fact that he had sued defendants and the Western Union Telegraph Company both for the same cause of action and later had dismissed his suit as against the Western Union Telegraph Company and had then filed a second suit against said Telegraph Company and that the same had been transferred, on the application of the Telegraph' Company, to the United States Court.

This exception, we think, is not good, for the reason that defendants have not by plaintiff’s acts been deprived of any of its legal defences or in any way changed their position to their detriment.

II.

On the ground that plaintiff has no right to sue for his own benefit for damages done to his minor son.

This is an action under the Workmen’s Compensation Law of Louisiana and under this law a liberal interpretation of all pleadings and technical requirements is provided for, and we think with the District Court that a fair interpretation of plaintiff’s petition is that he is suing for the use and benefit of his minor son; and accordingly the judge of the District tiff for the use and. benefit of his minor Court rendered judgment in favor of plain-son.

The important question presented for decision is : Can Joseph Porter recover from the defendants under the State Workmen’s. Compensation Law, or must he look to the Federal Workmen’s Compensation Law?

This question depends upon whether at the time of the accident

“the employer and employee were both engaged and employed at the time in an interstate movement or operation”.

In Thaxton vs. La. Ry. & Nav. Co., 153 La. 292, 95 South. 773, the Supreme Court stated the law to be:

“The showing that the train itself, on which the employee was working at the time of the accident, was not engaged in interstate or foreign commerce was a sufficient showing that the employer, as far as that employment was concerned, was not engaged in interstate or foreign commerce.”

At the time of the accident Joseph Porter was being transported on a handcar used exclusively in the Parish of Natchitoches, Louisiana, operated by section hands whose work is exclusively in the Parish of Natchitoches, Louisiana.

Under the above latest interpretation by the Supreme Court of Louisiana of the Workmen’s Compensation Law of Louisiana, We are of the opinion that the plaintiff is entitled to recover in this case under the State Workmen’s Compensation Law.

The employment was admitted at a daily wage of $2.00 ■ per day, which gives $12.00 per week. The evidence we think establishes that. Joseph Porter permanently lost the use of his leg. The District Judge who saw him in court at the trial and heard the evidence, so held, and plaintiff is accordingly entitled to judgment for $7.20 per week for 175 weeks.

It is' therefore ordered, adjudged and decreed that the plaintiff, Robert Porter, have and recover judgment, for the use and benefit of his minor son Joseph Porter, against J. L. Lancaster and Charles L. Wallace as Receivers of the Texas & Pacific Railway Company for the sum of $7.20 per week from October 30, 1922, until paid, with 5% per annum interest on ■ each weekly payment from the date it became due until paid, for a period of not exceeding 175 weeks. As thus amended the judgment of the lower court is affirmed at defendant’s cost in both courts.

Carver, Judge, being recused, took no part in the decision.

OPINION ON REHEARING.

CROW, Judge

ad hoc. A rehearing was granted in this case, for the reason that the court was not satisfied that the case comes within the Employer’s Liability Act of Louisiana, and was seriously impressed With the contention of appellants that the case properly comes under the Federal Employer’s Liability Law.

If It is true that the case comes within the Federal Employer’s Liability Law, then this action was improperly brought under the State Employer’s Liability Law, and judgment was erroneously rendered under the latter law.

While it is provided in the Federal Employer’s Liability Law of date April 22, 1908, as amended by later acts of Congress, that a suit arising out of, and coming under, the Federal Employer’s Liability Act may be instituted in either State Court of competent jurisdiction or the proper Federal tribunal, yet if the case falls witbin the purview of the Federal Employer’s Liability Act, suit must be brought under that act alone, which is exclusive and controlling,' and supersedes all state laws and regulations on the particular subject matter.

It has been several times decided by the .Supreme Court of the United States that in a case where the injury occurs in interstate commerce, the Federal Employer’s Liability Act is controlling, and a recovery cannot be had under the common law, or under the State Compensation Act; in other words, that highest tribunal has held that the Federal statutes on that matter is exclusive in its operations. (Wabash vs. Hayes, 234 U. S. 86; N. Y. C. Ry. Co. vs. Winnfield, 244 U. S. 147; Seaboard Airline vs. Wharton, 233 U. S. 492; M. K. & T. Ry. vs. Wulf, 226 U. S. 570.)

It is true that the Federal Employer’s Liability Act provides that the injured party, or in case of his death, his legal representatives, may institute the suit in either the State Court of competent jurisdiction or the proper Federal Court; and it is true that it also provides that when a plaintiff has elected to bring his suit in' the State Court of proper jurisdiction, the case cannot be removed therefrom to any Federal Court. The act, however, further indicates that its provisions are controlling and exclusive an all mattérs coming within its purview, and in all cases contemplated by the act. Hence, the only question we are now called upon to decide, we think, is whether or not the plaintiff’s minor son was, at the time received his injuries, engaged in interstate commerce, or in work which aided in the promotion or furtherance of interstate commerce.

The evidence indisputable shows that. plaintiff’s minor son, when he received his injuries, Was a section hand, who was employed by' the appellants to work on, and assist in repairing, the railway. track of the appellants, which, concedély, extends from New Orleans, Louisiana, to El Paso, "Texas, and is constantly and regularly carrying interstate passengers and hauling interstate freight daily over it's said line of 'railway. That being true, it' necessarily follows that appellants Were engaged in interstate commerce, at least a part of the time, although they may have, at times, been engaged in interstate traffic. But under the jurisdiction of this state and of the Federal Courts including the Supreme Court of the United States, it makes no difference whether the particular railroad complained of was engaged exclusively in 'interstate commerce; for, in either event, under the well settled ruling of' the above court, the case would fall under the Federal Employer’s Liability Act.

It is of course true, also, that not only must the appellants’ railroad have been engaged in interstate commerce at the time the injuries complained of were sustained, but plaintiff’s minor son must, at that time, himself, have been engaged in interstate commerce or in work in aid and furtherance thereof. Since it was the duty of plaintiff’s minor son to work on the railroad track of appellants, and aid and assist in the repair of the tracks over which regularly and daily passed trains carrying interstate shipments and passengenrs in. interstate travel, it is obvious that the work of plaintiff’s minor son was in aid and furtherance of interstate commerce; and, therefore, the case logically falls within the provisions and purview of the Federal Employer’s Liability Act.

In the former opinion of this court, the judgment of the district court awarding compensation to plaintiff under the Louisiana Employer’s Liability Act .was affirmed .mainly upon the proposition that plaintiff’s minor son when injured, was working ..Wholly within the Parish of Natchitoches, and his duty under his employment , required him to perform services exclusively in that Parish. Upon a reconsideration of this case, we are of the opinion that the particular location, or situs, of the work which plaintiff’s minor son was engaged in, is of little or no value in determining whether or not he was at the time engaged in interstate commerce or in work which aided in tlie furtherance and promotion of interstate commerce. On the contrary, we are of the opinion that we are concerned mainly, if not only, with the nature of the work in which plaintiff’s minor son was employed and engaged at the time he sustained his injury.

In the case of Peterson vs. Delaware, Lackawana & Western Ry. Co., reported in 229 U. S. 146, 33 Supreme Court Reporter 648, a case similar in fact, and practically identical in principle with the case at bar, the Supreme Court of the United States, among other things, said:

“That the defendant was engaged in interstate commerce is conceded; and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury.”

In the case above quoted from, the plaintiff was injured while carrying a sack of bolts or rivets to be used in repairing a bridge which was regularly in use in both interstate and intrastate commerce, and the Supreme Court of the United States held that he was employed in interstate commerce within .the meaning of the Federal Employer’s Liability Act of April 22, 1908, giving a right of recovery against' the carrier of the injuries, or death, of an employee while so employed. The court hpid that bridges were necessary parts of all interstate lines of railroad, and that the keeping of the bridges in repair was work which aided in interstate commerce, as the bridges were an indispensable part of an interstate line railway. A fortiori, the railway track is an essential and indispensable portion of the interstate line of railway of appellants; and, therefore, any work in keeping up or repairing the railroad track was necessarily work which aided in the business of interstate traffic and commerce, which made the employment of plaintiff’s minor son that of interstate work, or else it partook so closely of that character of work as to make it essentially a part thereof.

In the case of Southern Ry Co. vs. Puckett, reported in the 244 U. S. 571, 37 Supreme Court Reporter 703, it was held by the Supreme Court of the United States that an employee of an interstate railway carrier assisting in clearing up a wreck which was blocking the movement of trains in interstate commerce, who, while carrying blocks on his shoulder which were to be used in jacking up a wrecked car and replacing it upon the track, stumbled over some large clinkers which were on the roadbed near the track and in stumbling struck his foot on some cross ties overgrown with grass, as a result of which he was seriously injured, was employed in interstate commerce, within the meaning of the Employer’s Liability Act of April 22, 1908, as amended.

In the case of Erie Ry. Co. vs. Winnfield, 244 U. S. 170, 37 Supreme Court Reporter 556, the Supreme Court of the United States held that an employee of an interstate railway carrier in charge of a switch engine, who was killed while leaving the yards after his day’s work, which had included employment in both interstate and intrastate commerce, was at the time of the accident employed in interstate commerce within the meaning of the Federal Employer’s Liability Act.

In another case decided by the Supreme Court of the United States, it was held that a cook, employed by an interstate railway carrier, whose work was simply to cook the meals, wash the dishes, make up the beds, etc., of the employees of the carrier who were repairing a bridge on the line of the railroad and who were boarding in a box car standing on a switch beside the main line of the interstate railway line, the cook’s duties having been confined within the standing car, upon being injured ' while in that employment, could recover only under the Federal Employer’s Liability Act.

A case on all-fours with the case at bar is that of San Pedro, L. A. and S. L. R. Ry. vs. Davide, decided by the United States Circuit of Appeals for the Ninth Circuit, and reported in 210 Federal Reporter, at page 870. In that case, as in the case at bar, the plaintiff sustained accidental injuries while he and other employees were returning to their camp on a number of hand cars, the accident being caused by the negligent slackening of the speed of the car immediately preceding plaintiff’s car, which caused a collision between the cars. In that case, the said Circuit Court of Appeals, of the United States, among other things, said:

“A railroad section hand, engaged in ballasting the main track of a railroad which carried freight and passengers between different states, was engaged in interstate commerce within the Federal Employer’s Liability Act of April 22, 1908, as amended by Act of April 5, 1910.”

In the same case, the same court also said:.

“A railroad section hand, who had been engaged in interstate ■ commerce during the day, was still so engaged while riding on a hand car furnished by the railroad company at the conclusion of the day’s labor, by direction of his foreman, for the purpose, not only of returning from his place of work to the camp maintained by the company, but also for the purpose of taking the hand car to a point where it was to be removed from the track so as to leave the road open to the passage of trains.”

It Ts, indeed, difficult to imagine a case more nearly identical with the case at bar 'than the one above last quoted from. The decision in that case is not only persuasive here, but, taken in connection with the many decisions of the Supreme Court of the United States, hereinabove referred to, and others with which we are familiar it is conclusive on the question at issue.

Of course, plaintiff may still have his right of action in the proper court, if brought under the Federal Employer’s Liability Act. On that matter'we are expressing no opinion; and it is with more or less reluctance that we are constrained to reverse the former opinion of this court and the judgment of the district court.

For the reasons assigned, it is hereby ordered, adjudged and decreed that our former opinion herein rendered be, and the same is hereby annulled, avoided and set aside; and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed and his demands rejected at his costs in both courts, with full reservation of all rights he or his minor son may have to proceed under the Federal Employer’s Liability Law.

OPINION ON REHEARING.

ODOM, J.

Counsel for plaintiff, in his application for rehearing, states that this court evidently overlooked the fact that the time within' which a suit must be filed under the Federal Employers’ Liability Act is two years from the time of the accident and that that time has already expired; and he suggests that this court did not read the decision which -he cited in his supplemental brief, to-wit: Industrial Accident Commission of the State of California, et al. vs. Payne, reported in 259 U. S. 182 (National Reporter System, vol. 42 page 489).

The court in the cited case had under consideration the sole question as to whether the injured employee was, at the time of the injury, engaged in interstate commerce. The petitioner in that case was employed in repairing an engine which had 'been used in interstate commerce and was destined to be so employed again. The engine was. sent to the repair shop .on December 1, 1918, and was there stripped and dismantled. The accident occurred on February 1, 1919, two months after the engine had been sent to the shop. The court held that the “tracks, bridges, roadbed and equipment of a carrier in actual use in interstate commerce have a definite interstate character as instruments of such commerce and give such character to those employed on them”. (Syllabus). But the court held that the engine on which, the injured party was at work had been withdrawn or separated from commerce and having been so separated or withdrawn was not at the time of the injury an instrument used in interstate commerce. Therefore the injured party was not engaged in interstate commerce at the time he was injured. The court said:

"It (the engine) was placed in the shops for general repairs on December 19, 1918. On February 25, 1919, after work upon it; it was given a trial and it was placed in service on March 4, 1919. The accident occurred on February 1st of that year, the engine at the time being nearly stripped and dismantled. It was not interrupted in an interstate haul to be repaired and go on.”

It will therefore be seen that the court did not hold that one who was engaged in repairing an engine used in interstate commerce was not engaged in interstate commerce ; but it did .hold that under the facts of that case the engine was not then being used in interstate commerce, therefore the laborer was not engaged in work of that character.

In the case ‘at bar, Porter, the plaintiff’s son, was, at the time of his injury, engaged in repairing the track of an interstate railroad engaged, admittedly, in interstate commerce. That track, according to the decision cited by counsel, is “an instrument of such commerce and gives such character to those employed on them”. Plaintiff’s son was therefore at the time of his injury engaged in interstate commerce and under all the decisions which have been called to our attention and which we have been able to find his suit should have been brought under the Federal Act.

We express no opinion as to whether plaintiff’s action is now barred by prescription under the Federal Employers’ Liability Act. Counsel for. plaintiff says it is and suggests that our decision works a hardship on him for that reason. But the court is not responsible for the condition which has brought about the hardship, if, indeed, plaintiff suffers on that account.

Rehearing refused.


text:
    No. 2256
    Second Circuit Appeal
    A. C. JACKSON v. T. C. WALTON
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Injunction—Par. 1, 14.
    An injunction will be dissolved where the facts show that plaintiff has a fear or apprehension - that his land will be injured if water is pumped out of an adjacent bayou to irrigate defendant’s land. There is not a reasonable probability that such would be the case unless there is an unusually dry season.
    (Code of Practice, Art. 296.)
    2. Louisiana Digest — Injunction—Par. 1, 14.
    In order to obtain an injunction under Code of Practice, Art. 296, there must at least be a reasonable probability that the injury will be done it nio injunction is granted.

      Appeal from Second Judicial District Court of .Louisiana, Parish of Bossier. Hon. Robert Roberts, Jr., Judge.
    This is an injunction suit to prevent one from pumping water out of a bayou for irrigation purposes.
    There was' judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. F. Phillips, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff owns land bordering on what is known as Hotchkiss Bayou. The land on the opposite side of the bayou is owned by H. T. Smith. The said Smith, by written contract, granted to T. C. Walton, the defendant, the right to pump water from his side of the bayou to the land of defendant for irrigation purposes and to wash a dairy barn on his (Smith’s) property. The land owned by defendant (Walton) which was to be irrigated, lies adjacent to the Smith property but does not lie adjacent to the bayou. The distance from the bayou, across Smith’s property, to that of defendant is about 300 feet. The stream or bayou is approximately 2000 feet long and 100 feet in width with an average depth of 3 feet, but with holes in the stream 6 feet deep. It is estimated by a civil engineer that the said bayou contains, or contained at the time the statement of facts was signed, about 5,000,000 gallons of water in the main stream and about 1,000,000 gallons in an arm thereof on the Smith tract which is connected with tbe main stream. There is also a branch or arm of said bayou lying entirely within the limits of plaintiff’s land which is dammed off from and does- not connect with the main bayou. Whether -this is . a running stream or’ not is not made clear. We get the impression that it is not. It is not navigable.

The plaintiff sets up these facts and that the said T. C. Walton:

“Is arranging to pump and transport water from the said bayou and across the land owned by Smith to the estate, or tract of land, owned by • him, the said T. C. Walton; and that he, the said Walton, is going to use and utilize the said water to' irrigate the land owned by him, none of which joins or abuts upon the said stream.”

And, in Paragraph 8:

“Petitioner shows that the action of the said Walton, if he .is allowed to pump the water from the said bayou to the estate owned by him, will be a trespass upon the right of your petitioner.”

And he alleges that under the laws of this state the said Walton has no right in or to said water, he not being a riparian owner, and that if he pumps said water from said bayou for irrigation purpose's petitioner will be damaged.

And on the question of damages he sets out' that his land, being located on said bayou, it is admirably situated for irrigation, and that he is contemplating a sale of the land and that he has been informed by expert realtors that if the water should be utilized by persons not abutting on said stream that it would damage the selling value of his estate in the full sum of $2500.00. And he further alleges that the said stream has an abundance of fish in it and that he and his family frequently fish there with success, that should the said Walton be allowed to pump water out of the same and the season turn off dry, it would result in the stream being destituted of water, resulting in the fish dying or becoming unfit for use. , I

Defendant ' answered, ■ admitting ownership of the property and the location of the stream, and admitted that he has a contract with H. R. Smith under which he is allowed to pump water from the bayou, but especially denies that any damage or injury will result therefrom to petitioner or his land.

The case was tried in the District Court ■upon an agreed statement of facts found in the record. There was judgment for the plaintiff, enjoining defendant from pumping or in any other manner diverting ■or getting water out of the bayou named and described; from which judgment defendant has appealed..

OPINION

The statement of facts’ found in the record recites that the main stream is approximately 2000 feet long and about 100 feet wide, shows the amount of "water it contains, gives its boundaries, etc., and recites:

“The bayou has not within recent years entirely dried up, but has, within the past three. years, dried up to such extent that the water stood only in the deep holes. The stream is fairly stocked with fish and ' plaintiff and his family fish in it, and there is also fishing done on the side belonging to Mr. Smith.”

And it also recites that the land owned by defendant does not abut on the stream but that his land drains into it; that defendant had a contract with Smith to put in a pumping plant, as per the contract filed with the statement of • facts, -and. that plaintiff owns land adjoining the, bayou suitable for irrigation, and that Red River is about one-fourth of a mile over the levee, which levee is the boundary of plaintiff’s land, and that-the river contains an abundance. of water to irrigate plaintiff’s land but that plaintiff does. not own .the strip of land between the-river and the levee.

There is nothing in the statement of facts to indicate that plaintiff intends to irrigate his land at present or at any time ■in ■ the future, or that he needs the water ■in the bayou for any other purpose. It is set' out that his land is susceptible of irrigation but it is not' recited that he needs the- water for that purpose at this time. ■ It is shown that the bayou is' fairly well stocked with fish and that plaintiff catches and uses them, but it is not shown that the pumping of water from the bayou, will kill the fish. It is shown that the bayou has not within recent years gone dry but that it has within the past two or three years gotten so low that the water only stood in the deep holes. There is nothing to show the amount of water which the defendant would probably take from the stream. It is admitted that defendant had a contract to put in a pumping plant, as per the contract attached. That contract provides that Walton, the defendant, may pump water from the bayou for the purpose of irrigating his property and to wash a barn, but there is nothing to show how much land defendant proposes to irrigate or how' much water he will use for that purpose or for washing the barn. It is not stated in the statement of facts' that' defendant proposes to draw such an amount of water from said stream as will kill the fish,.or that he will ■ pump the said stream ' dry; nor is it intimated that his pumping water from the said bayou will have any appreciable effect upon it, except in extremely ,dry seasons.

This suit was filed on June 9th, and .there is nothing to show that the water was low at that time or that it would be needed to'- sustain the fish,- and, as stated, plaintiff does - not attempt- to show that he had need of the water in the bayou. So far as even the pleadings or the statement of facts shows, plaintiff has not at this time irrigated his own land with the water from said bayou nor does he contemplate doing so in the near future. He. goes no further than to state in his petition that his land is susceptible of irrigation and that he has been informed that if the water should be pumped out of the bayou by outsiders it would, cause injury to his land, or rather reduce the sale price thereof $2500.00.

Plaintiff has not shown any actual or impending injury or danger and therefore was not entitled to an injunction. There is no allegation or proof that defendant will pump so much water from the bayou that the fish will die or that he will not have sufficient, water for his own needs. The inference from the pleadings and the facts is clear that unless there is a dry season plaintiff has no reason to apprehend danger or injury.

Article 296 of the Code of Practice reads as follows:

“Injunction or prohibition is a mandate obtained from a court by a plaintiff prohibiting one from doing an act which he contends may be injurious to him or impair a right which he claims.”

In 22 Cyc. page 758, we find the law stated thus:

“It is not sufficient ground for an injunction that the injurious- acts may possibly be committed or that injury may possibly result from the acts sought to be prevented. There must be at least a reasonable, probability that the injury will be done if no injunction is granted, and not a mere fear or apprehension.”

See: Harrison vs. City, 33 La. Ann. 222.

Roudanez vs. Mayor, 29 La. Ann. 271.

State ex rel. vs. Keiffer, 34 La. Ann. 89.

Bell vs. Riggs, 38 La. Ann. 555.

The injunction will hav.e to be dissolved because there was no actual or impending injury shown.

However, plaintiff’s right to renew the action, should necessity for it arise, should be reserved.

For the reasons assigned it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided and that the injunction be dissolved and set aside, all at the cost of the plaintiff.

It is further ordered that plaintiff’s right to renew his action, in case conditions warranting it should arise, be reserved.