author: STEPHENS, J. McGREGOR, J.

text:
    No. 4102
    Second Circuit
    LIEBER v. WATT (GENERAL MOTORS ACCEPTANCE CORP., Intervener)
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)

      Madison & Madison, of Monroe, attorneys for plaintiff, appellee.
    Paul Pink, of Monroe, attorney for inter vener, appellant.
   STEPHENS, J.

The plaintiff, L. L. Lieber, brought this suit to recover rent from his tenant, the defendant, T. E. Watts. In aid thereof, he provoked the issuance of a writ of provisional seizure and caused to be seized thereunder a certain refrigerating machine together with other property found on the leased premises.

The General Motors Acceptance Corporation intervened in the suit, alleging that the defendant was indebted to it for a portion of the purchase price of the refrigerating machine, which indebtedness was represented by a promissory note and secured by a chattel mortgage on the machine; that said chattel mortgage was filed and recorded prior to the time the machine in question was placed on the leased premises; and that therefore its vendor’s lien, and chattel mortgage was superior in rank to the plaintiff’s lessor’s lien, and that it should be so decreed, and that it should be paid by preference out of the proceeds of the sale of said machine.

A trial of the case resulted in a judgment rejecting the intervener’s demand, in so far as it sought recognition of its vendor’s lien and chattel mortgage as superior to plaintiff’s, lessor’s lien. ' Prom that judgment the intervener appeals.

We find the following pertinent facts as disclosed by the record: That the chattel mortgage was in notarial form and regular upon its face; that it was signed by the defendant, the mortgagor, and by one of the attesting witnesses, on the leased premises; that it was signed by the mortgagee, the Monroe Refrigerating Company, and the other attesting witness, in the office of the mortgagee, and by the notary public at his office at another time and place, ■the mortgagor, mortgagee, and the witnesses not being present; that it was executed in the manner described, filed and recorded on the public records before the mortgaged property was moved on the leased premises; and that the plaintiff lessor had no actual notice or knowledge of the existence of the chattel mortgage until some time after the property had been placed on the leased premises.

Section 2 of Act No. 198 of 1918 provides:

■¡it « * jn order to affect (third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof shall be recorded in the office of the Recorder of Mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor is a resident.”

Section 4 of the same act provides:

“* * * that every mortgage shall be a lien on the property mortgaged from the time same is filed for recordation, which filing shall be notice to all parties of the existence of such mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

As we have concluded that the chattel mortgage was executed and recorded prior to the placing of the refrigerating machine in the leased premises, it necessarily follows that the lessor’s privilege, having subsequently arisen, was inferior in rank to the chattel mortgage, unless it be shown that the plaintiff lessor was without notice, actual or constructive, of the existence of the mortgage.

Further, as we have concluded as a fact, and that conclusion is amply supported by the evidence, that the lessor had no actual knowledge or notice of the existence of the chattel mortgage, the issues in the case are reduced to the sole question of whether the lessor was given constructive notice by the recordation of the mortgage.

The chattel mortgage as recorded was in the form of a notarial act, regular in every particular upon its face; but its authenticity was successfully attacked by the plaintiff lessor. It was not executed before a notary, or other officer authorized to exercise such functions, in the presence of two witnesses, and was therefore not a notarial act. Civ. Code, art. 2234.

It is contended by the intervener that the proper recordation of an instrument, regardless of its authenticity, is notice to the world. That contention, at least, as. applied to the specific question here presented, is not well founded. The statute provides that in order to affect third persons . without notice, a chattel mortgage must be passed by notarial act, and that said act must be recorded in the office of the recorder of mortgages. There are therefore two essential requirements necessary to constitute effective, constructive notice; The act must he of a certain character, and that act, of that definite character, must be recorded in the mortgage records. In order to convey constructive notice, both requirements must be complied with.

In the insta-nt case neither requirement was complied with. The chattel mortgage was not a notarial act in fact, but only in form. The recordation which was effected was not the recordation of a chattel mortgage passed by notarial act.

The essential requirements expressed by the statute to affect third persons with constructive notice of the existence of a chattel mortgage are exclusive. “Expressio unius est exclusio alterius.” Where a statute directs the performance of a certain thing in a particular manner, it forbids by implication every other manner of performance. It was therefore not sufficient, for the purpose of affecting the lessor with constructive notice, to pass a chattel mortgage by private act and cause it, as thus executed, to be recorded.

It was held by this court in the case of Union Securities Co. v. Neal, Watts, Third Opponent, 9 La. App. 494, 121 So. 316, that a chattel mortgage, under private signature, duly recorded, did not affect third persons without actual notice. That case is identical .with this, in that the chattel mortgage was not in fact passed by notarial act, but is unlike the present case in that the mortgage did not conform to the requirements of a notarial act upon its face.

However, the identical question here presented was answered by the Orleans Court of Appeal in Dainello v. McCoy, 15 La. App. 358, 131 So. 608, 609, in the following language:

“We find it unnecessary to consider the question of fact which is thus presented for the reason that the record leaves us no other alternative than to hold that, under the chattel mortgage laws of this state, the document purporting to be a chattel mortgage by notarial act, and on which intervener’s claim is based, is nothing more than an act under private signature and that, thus, in the absence of proof that the landlord had actual knowledge of its existence, he cannot be bound thereby.”

In Dainello v. McCoy, as in the instant case, the chattel mortgage was recorded and was regular in form, but it was not in fact passed by notarial act.

It is contended by the intervener that the plaintiff necessarily had knowledge of the existence of the chattel mortgage pri- or to the institution of the suit, and that therefore his lessor’s privilege was inferior in rank to the lien resulting from the chattel mortgage. That contention is not in point. The question here is whether the plaintiff acquired actual knowledge or was constructively notified of the existence of the chattel mortgage before the mortgaged property was placed on the leased premises. If he acquired such knowledge, or was chargeable with such notice at such time, his lessor’s lien and privilege must be classified as “arising subsequently” and inferior in rank to the chattel mortgage; but, on the contrary, if he had no such notice, actual or constructive, at such time, the chattel mortgage, and the lien incident thereto, which is superior in rank only to liens and privileges subsequently arising, did not exist, in so far as.,they affected him, and the refrigerating machine was placed on the leased premises and the lessor’s lien attached thereto while it was unincumbered by mortgage.

The fact that plaintiff learned after the refrigerating machine had been placed on the leased premises that the chattel mortgage existed is clearly irrelevant and immaterial, as it existed with reference to him only from the time of the acquisition of such knowledge, and as his lessor’s lien had already attached to the property in question at the time he acquired such knowledge, it could not properly be designated as a lien or privilege subsequently arising.

The intervener relies on the case of Shevnin v. Grimmer et al., 10 La. App. 393, 119 So. 894, 896, as authority for its position here. In that case this court in its opinion stated that the lessor must have had actual knowledge of the existence of the chattel mortgage because he filed the suit. The question as to whether he acquired that knowledge prior or subsequent to the time of placing the mortgaged property on the leased premises was not discussed. The mere expression that the lessor had knowledge of the existence of the chattel mortgage because he filed the suit, a self-evident fact, is dehors the issue, which was the relative rank of the lessor’s lien and privilege and the chattel mortgage lien, which rank could only be affected in .the absence of constructive notice, by knowledge of the lessor of the existence of the chattel mortgage at the time or before the mortgaged property was placed on the leased premises.

The mortgage in question in the Shevnin case was a private act duly recorded. This court with reference to the effect of its recordation used the following language;

“If plaintiff (the lessor) did not have actual notice of the existence of the mortgage, he must be held to have had constructive notice of it arising from its recordation, and therefore it affected him.”

The statement as thus made is clearly in conflict with and cannot be reconciled with the decisions in the Union Securities Company and Dainello cases, supra, nor the conclusions herein reached, and in the interest of clarifying the jurisprudence upon the question, it is repudiated and expressly overruled.

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

McGREGOR, J.

(dissenting). The only question at issue in this case is whether the lessor was given constructive notice by the recordation of the purported chattel mortgage which on its face was in notarial form and regular in every respect, and which had been signed in good faith by every person required by law. The only defect in the instrument was discovered at the trial of the case and this was that the mortgagor, the mortgagee, the two witnesses, and the notary public did not sign the document at the same sitting in the presence of each other. This fact is held to deprive the act of its authenticity as a notarial act.

It is conceded that there was no actual personal notice of the existence of the chattel mortgage granted by the defendant to the intervener. The majority opinion therefore very correctly holds that the issues in the case are reduced to the sole question of whether the lessor was given constructive notice by the recordation of the mortgage in the form in which it was delivered to the recorder’s office. This identical question was passed upon by the Orleans Court of Appeal in the case of Dainello v. McCoy, 15 La. App. 358, 131 So. 608, which case is cited with approval by the majority opinion. That is. the only Louisiana case that I have been able to find. In the other states there are numerous cases analogous to this one, if not parallel with it.

11 Corpus Juris, Chattel Mortgages, 228:

“Where the defect, whether in the acknowledgment or in the lack of proper attesting witnesses, does not appear upon the face of the instrument some courts hold that when the instrument is fair upon its face, although there be a latent defect, the recordation thereof constitutes constructive notice under the recording-acts. Other courts take the opposite view and hold that the defect, although not apparent on the face of the instrument, may be shown by extrinsic evidence and the effect of the record overcome.”

1 Corpus Juris, Acknowledgments, 55:

“According to the weight of authority, where an instrument bearing a certificate of acknowledgment or proof which is regular on its face is presented to the recording officer, it becomes his duty to record it and the record thereof will operate as constructive notice, notwithstanding there be a hidden or latent defect in the acknowledgment; but there are authorities in which a cqntrary view has been asserted.”

If all the parties to the chattel mortgage attacked, including the two witnesses and the notary public, had complied with the strict letter of the law by signing in the presence of each other and it had developed afterwards, that the notary was disqualified for some legal reason, the act would certainly lose its character as a notarial act, and if the majority opinion is right, the recordation of such an act would not give constructive notice to third parties. In my opinion this defect would be far more serious than the defect of the various parties failing to have all the others present when signing. But there are any number of authorities to the effect that, notwithstanding this latent defect, the recordation of such a document will have full forcé and effect as constructive notice to third parties.

Boswell v. First National Bank, 16 Wyo. 161, 92 P. 624, 628, 93 P. 661. This was a case where it developed that the notary public before whom a chattel mortgage was passed and executed was disqualified and had no right or authority to act. This fact did not appear on the face of the record, but was discovered later and subsequent purchasers of the property subject to the chattel mortgage sought to acquire it free of the mortgage. The court held that the notary had no right to receive the acknowledgments of the parties, but that this fact did not invalidate the mortgage. as between the parties, and that since it was not invalidated as between the parties the recordation of the mortgage in apparent perfect form gave constructive notice to third parties. In passing on this point the Supreme Court of Wyoming said:

“Error is assigned upon the court’s refusal to permit proof on the part of defendant that the notary public who took the acknowledgment to each of the mortgages. was at the time of taking the same a stockholder of the plaintiff bank, the mortgagee. Evidence to that effect was offered for the purpose of showing that the officer was disqualified by reason of interest, which fact, it is contended, would render the acknowledgment void. A similar offer of proof was made as to the notary who administered and certified to the oaths to certain affidavits which had been filed as provided by law to continue the chattel mortgages in force as against third parties. That an officer who is financially or beneficially interested in the transaction is incompetent to take and certify the acknowledgment to an instrument is a well-settled and commendable rule, and is to be sustained, if for no other reason, upon the ground of public policy. By the great weight of authority the interest of a stockholder in a corporation is helij, to disqualify him to take an acknowledgment where the corporation is a party to the instrument. First Nat. Bank v. Citizens’ State Bank, 11 Wyo. 32, 70 P. 726, 100 Am. St. Rep. 925. It is generally stated that an acknowledgment is void when taken and certified by an officer disqualified by reason of interest, and that, where an acknowledgment is essential to the validity of the instrument itself, the latter is also void if acknowledged before a disqualified officer, as in the case of a wife’s conveyance of the homestead under our statutes, id. The statement occasionally •to be found in judicial decisions to the effect that an acknowledgment taken before an officer disqualified on account of interest is. void for all purposes is not, we think, entirely accurate, if intended to apply in all cases. Its correctness may be conceded in respect to instruments which are absolutely void without a proper acknowledgment, and also instruments which disclose the defect upon their face or the face of the certificate of acknowledgment. Where, however, the infirmity is not apparent upon the face of the deed or instrument or certificate of acknowledgment, but the acknowledgment appears, to be fair and regular and to have been properly taken, and the instrument is one which, would not be invalidated as between the parties to it by a defective acknowledgment, the recording of the instrument in the proper office will operate as constructive notice thereof, notwithstanding the latent defect. This rule is sustained by abundant authority and is founded upon, public policy, to carry out the purpose of the recording acts and preserve the reliability of the public records of transfers and conveyances. It is readily to be seen, that a contrary rule would render unsafe any reliance upon the record of deeds or instruments requiring acknowledgment to entitle them to be recorded. It is clearly not incumbent upon the recording officer tq enter upon an extrinsic investigation, before receiving for record an instrument regular on its face, to discover whether the acknowledging officer was in fact disqualified because of interest. So far as the defect now being considered is corn cerned, if upon the face thereof the instrument is recordable, and it is in fact recorded, the record should be held constructive notice to subsequent purchasers and others chargeable with record notice. 1 Cyc. 530, 553; 24 Ency. L. (2d Ed.) 103; Ogden B. Ass’n v. Mensch, 196 Ill. 554, 63 N. E. 1049, 89 Am. St. Rep. 330; Bank v. Hove, 45 Minn. 40, 47 N. W. 449; Peterson v. Lowrey, 48 Tex. 408; Blanton v. Bostic, 126 N. C. 418, 35 S. E. 1035; Stevens v. Hampton, 46 Mo. 404; Titus v. Johnson, 50 Tex. 224; Morrow v. Cole, 58 N. J. Eq. 203, 42 A. 673; Angier v. Schieffelin, 72 Pa. 106, 13 Am. Rep. 659.”

In the case at bar the defect or infirmity is latent and not apparent. On the face of the instrument it is perfect and regular in every respect, and all the testimony that discloses the fact .that the witnesses and parties did not sign in the presence of each other positively affirms and shows, however, that all the parties actually did sign the document in good faith and that it was genuine in every respect. The same line of reasoning that holds that a document regular on its face will operate as constructive notice to .third parties, notwithstanding the fact that by extrinsic evidence it is shown that the notary was. not qualified to receive the acknowledgment, is convincing that any document notarial in form and duly recorded will operate as constructive notice to third parties, notwithstanding the fact that on the trial it is shown by extrinsic evidence that the parties were not actually in each other’s presence when they signed their names. It is true, of course, that when an act purporting to be a chattel mortgage proves to be not notarial in form it cannot be foreclosed via executiva. In this event it is necessary to proceed via ordinaria, and in that suit the mortgagee has the right to prove his mortgage'. If he succeeds in proving his mortgage in proceedings via ordinaria, it is good against the world and is just as effective against third parties, as it is against the mortgagor, and it necessarily follows that its effect begins from the date of its recordation.

The rules relative to the sale of real estate are as strict as, if not stricter than, those relative to chattel mortgages or movable property. In the case of Stallcup v. Pyron, 33 La. Ann. 1249, it was held:

“It is elementary that, between the parties to the act, defendant’s sale without registry was translative of title, and was a perfect conveyance, and that registry in the proper office was the only element wanting to render it binding on third parties, and on the world. The object of regis^ try is notice, and we hold, as settled, that notice is given by the registry of a sale under private signature, even without proof of the signatures of the parties thereo, as required by Art. 2253.
“A broad distinction exists and must be made in law, between the effect of registry of an act of sale, as to notice, and the effect of such an act as proof of title. And, in this connection, it is to be noted that, in the Code of 1825, Art. 2250, which is Art. 2253 of our present Code, is to be found under the head of ‘Copies of Titles.’ The rule is, that an act of sale under private signature, recorded in the conveyance office, even without proof of the signatures of the parties to the act, is sufficient to give notice which is the only object of registry; but that such an act, thus registered, could not be used as evidence of the title which it purports to transfer, adversely to third parties, without proof of such signatures. To illustrate, if, at the time of the trial of this ease, no proof had ever been given of the signatures of the parties at or preceding the 'registry, as prescribed in Art. 2253, and if the attesting witnesses and the parties to the act had been dead, or no proof as required by the article, could have been offered on the trial, of the signatures to the act, then, and in that case, the act would have had no effect as to plaintiff, and wouid not have been evidence adversely to him of the title set up in the case at bar. This shows the distinction to be made between the sufficiency of the proof for registry as to notice, and the proof of acts of sale under private signature, as controlled by the rules of evidence.’’

So, in the case before us., if the intervener had failed to establish proof of the signatures of the parties at the trial, it would have had no rights in the premises. Since the same evidence which showed that the parties did not sign the document all in the presence of each other conclusively proved, however, that they did sign it with the intention of granting a chattel mortgage, the mortgage was definitely es^ tablished as between the parties and its recordation necessarily operated as constructive notice to the world from the exact time when it was filed for record.

In the case of Allen, West & Bush v. Whetstone, 35 La. Ann. 846, it was held that the registry of an act of sale under private signature is binding as notice tthird parties, though with proof of signatures as directed by Revised Civil Code, art. 2253. This proof of signature may be made at the trial, and, if successful, it is good against the world. This case was cited with approval in the case of Burns v. Thompson, 39 La. Ann. 377, 1 So. 913, 920, as follows:

“Our jurisprudence has always recognized a broad distinction in law between the effect of registry of an act, as to notice, and the effect of such an act as proof of the contract which it purports to evidence. Allen, West & Bush v. Whetstone, 35 La. Ann. 847; Stallcup v. Pyron, 33 La. Ann. 1249, and authorities therein cited.’’

In the case of Nelson v. Forbes. & Sons et al., 164 Ark. 460, 261 S. W. 910, 912, the validity of a recorded chattel mortgage was attacked on the ground that it was proved by extrinsic evidence that the two witnesses -were incompetent and disqualified under the law. In passing upon the point raised, the Arkansas Supreme Court said:

“The mortgage in question is attested by Thomas Bromley and Albert Bromley, and it is said that the attesting witnesses are the minor children of the mortgagor and are not disinterested witnesses within the meaning of the statute quoted. It does not appear by what authority this statement is made, as no testimony is abstracted or referred to upon which to base it. The fact may be as stated, but, if so, it does not appear frdm the record before us as abstracted. Moreover, the relationship or interest or minority of the attesting witnesses does not appear from the face of the. instrument which they witnessed, and we need not, therefore, consider whether the infancy of the witnesses or their relationship to the mortgagor is such as to render them ineligible as attesting witnesses, under the statute quoted, because of the construction of this statute by the Supreme Court of Oklahoma.
“The statute was construed in the case of Lankford v. First National Bank of Lawton, 75 Okl. 159, 183 P. 56. It was there insisted that the attesting witnesses to the mortgage in question were interested, but the interest did not appear upon the face of the mortgage. The court quoted the two rules on this subject as stated in 1 C. J. pp. 772 and 773, and approved what was stated to be the majority rule.’’

The effect of the decision in the above-cited case is that, if the latent defect is not of such a nature that the document can be voided and declared null by the mortgagor, its recordation is operative as notice to third parties. Certainly, it will not be contended that the failure of those parties to sign the chattel mortgage -in the presence of each other can or will defeat the intervener’s mortgage rights against the defendant.

In the case of Lankford v. First Nat. Bank, 75 Okl. 159, 183 P. 56, the Oklahoma Supreme Court held that, where there is a latent defect in a chattel mortgage which is. regular on its face, its recordation operates as notice to third parties in all cases in which the mortgage is effective against the mortgagor, in spite of the latent defect. The case of Morrow v. Cole, 58 N. J. Eq. 203, 42 A. 673, is to the same effect.

In the case of Bank of Benson v. Hove, 45 Minn. 40, 47 N. W. 449, 450, it was held:

“But the question is not really involved in this case, for the mortgage was valid as between the parties to it, without an acknowledgment; and as to the defendant, a subsequent mortgagee, the record was notice, because an instrument so acknowledged, not disclosing the alleged disqualification of the notary, would be entitled to record, and be notice to him, so that he was bound by it. Any other rule would destroy .the reliability of the public records, and lead to most mischievous results. The doctrine appears to be well settled.’’

So, in the case at bar, the chattel mortgage was valid as between the parties and its recordation in regular notarial form operated as constructive notice to third parties. Of course, when the latent defects were disclosed by evidence, the mortgagee had to establish his right to foreclose in a suit via ordinaria. The fact that this was done in this case is conclusive that (.he recordation was proper, notice. This case was cited with approval by the Supreme Court of Minnesota in the case of Berkner et al. v. D’Evelyn et al., 119 Minn. 248, 137 N. W. 1097, 1098, as follows:

“The contention in this case is that, since' the plaintiffs’ mortgage was .not attested by two competent witnesses, it was not executed in conformity with the statute, and therefore, not entitled to record, and, though, filed in the proper office, was not constructive notice to third persons. If the defect in the execution of the mortgage appeared upon the face of the instrument, the soundness of defendants’ position could not be questioned. Tweto v. Horton, 90 Minn. 451, 97 N. W. 128. The authorities are practically uniform in so holding. But there is a diversity of opinion in cases, like that at bar, where the defect, whether in the acknowledgment or in the lack of proper attesting witnesses, does not appear upon the face of the instrument. A large. number of respectable courts hold that, when the instrument is fair upon its face, thouglj there be a latent defect, the record thereof constitutes constructive notice under the recording acts. Read v. Toledo Loan Co., 68 Ohio St. 280, 67 N. E. 729, 62 L. R. A. 790, 96 Am. St. Rep. 663; Fisher v. Porter, 11 S. D. 311, 77 N. W. 112; Ogden v. Mensch, 196 Ill. 554, 63 N. E. 1049, 89 Am. St. Rep. 330; Morrow v. Cole, 58 N. J. Eq. 203, 42 A. 673; Blanton v. Bostic, 126 N. C. 418, 35 S. E. 1035. Other courts take the opposite view, and hold that the defect, though not apparent upon the face of the instrument may be shown by extrinsic evidence, and the effect of the record overcome. Donovan v. Elevator Co., 8 N. D. 585, 80 N. W. 772, 46 L. R. A. 721, 73 Am. St. Rep. 779, and authorities there cited. We think the question was definitely settled in this state in favor of the rule first above stated in Bank of Benson v. Hove, 45 Minn. 40, 47 N. W. 449. In that case the chattel mortgage was acknowledged before a notary public who was an officer and stockholder of the mortgagee, a corporation. The court there held that ‘the law forbids that the acknowledgment of such instruments should be taken before a party to the same, or by one who takes some interest under it, whether as a grantee, mortgagee, partner, or trustee,’ but that, since the disqualification of the notary did not appear upon the face of the instrument, the mortgage was "’if.itUd to record, and constituted constructive notice to third persons. The rule there laid down has since been acted upon as expressing the law of this state, and has been followed and applied in later cases and by other courts. 3 Notes to Minn. Cases, 440. There can be no difference of a substantial nature between a mortgage thus improperly acknowledged and one witnessed by an interested party, where the fact of interest and consequent disqualification does not appear on the face of thq mortgage. If there be any difference from a legal standpoint, it would seem that the improper witnessing was of .less significance than the unauthorized acknowledgment. But from a logical standpoint there is no difference between the two situations. We follow and apply, therefore, the rule laid down in the Bank case, and hold that plaintiffs’ mortgage was constructive notice to all persons dealing with the mortgaged property.”

The court has a right to take cognizance of the fact that there is a very widespread custom prevailing in this state whereby sales, mortgages on real estate, and chattel mortgages are executed without strict conformity to the law. Whenever it develops by extrinsic evidence that this is true of an act, it loses its force as a notarial act; but in the absence of fraud which, of course, cuts down everything, the act, if regular in form, is good as a private act, and if the plaintiff can prove the facts which the act itself would have proved if it had not been deprived of its authenticity by the uncovered latent defect, his rights against the defendant are established and the recordation of the act operates as notice to third parties from the date of the recordation.

In my opinion, to hold otherwise would be disastrous to the business world, for, no doubt, there are thousands of such cases on record. If the doctrine held by the majority opinion should prevail, every chattel mortgage held by furniture and automobile dealers could be avoided in cases where all the parties were not together at the time of signing. In the case at bar every signature was genuine and was affixed before the document was recorded. The defendant intended to give a chattel mortgage. The document was regular on its face, was notarial in form, and was recorded before the property was placed in the leased building.

It might be contended that to enforce the doctrine contended for in this dissenting opinion would nullify the provision of section 2 of the Chattel Mortgage Act. This is not necessarily true, but if the reasoning set forth herein is correct and if that reasoning does nullify any portions of the act, the result is inevitable. It is. not uncommon to find certain provisions of statutes inconsistent with each other. For instance, to give full force and effect to this particular section would violate another equally important provision of law. This section specifically provides that, in order to affect third persons without notice, the chattel mortgage must be a notarial act and must be recorded. It is a natural inference from that provision that personal knowledge of the existence of a chattel mortgage in the form of a private act unrecorded would be binding on a third person, but such is not the case. Regardless of the knowledge of the existence of such an act, it is not binding on third persons until recorded, for section 4 of the same act provides that chattel mortgages are liens on property only from the date of recordation. The Registry Act of 1918 has been held to apply to chattel mortgages, just as it does to all other acts. Failure to record is fatal in all eases, and yet the logical inference from the strict literal interpretation of section 2 is that personal knowledge of an unrecorded chattel mortgage in the form of a private act is binding on third parties.

I think that the judgment of the lower court should be reversed, and that the intervener’s rights under its chattel mortgage should be recognized as superior to the plaintiff’s lessor’s lien. I therefore respectfully dissent.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 4147
    Second Circuit (Second Division)
    ROBY MOTORS CO., INC., v. HARRISON
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)

      Argued before DREW, CULPEPPER and TALIAFERRO, JJ.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellant.
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

On June 11, 1929, by written act, plaintiff sold to defendant a second-hand, six-cylinder Reo braugham automobile, for the price of $800, of which amount $200 was paid in cash or its equivalent and defendant gave his note for the remainder of the price, secured by chattel mortgage on the car, payable in 1.5 equal monthly installments. This note was reduced to $293.72 by various payments, the last of which being made in June, 1930. Plaintiff brings this suit to foreclose the mortgage by ordinary process.

Defendant, while admitting the execution of the note and mortgage, challenges the right of plaintiff to enforce same against him. He avers that the purchased car was orally guaranteed to be in first class mechanical condition, and was guaranteed to remain in that condition for a period of from 30 to 60 days after sale; that he had little knowledge of automobile mechanics and relied upon the guarantee of plaintiff; that within one week after he acquired the' car it developed defects and lack of good mechanical condition to such extent that it was necessary to' install new pistons therein, which plaintiff did at his insistence, but this effort to remedy the defects proved futile, and the car at no time gave satisfactory service; that before the expiration of the period of guarantee defendant endeavored to get plaintiff to accept return of the car, but this was refused; and he was induced by plaintiff’s agents and employees to allow further repairs on the car, they promising to put same in the condition it was supposed to be in when he purchased it; that finally plaintiff put new rings in the pistons, which did not fit,, and thereafter, as before, the engine pumped oil, knocked, and in other respects was entirely unsatisfactory; that because of the above mentioned defects in said car, and others named in the answer, defendant is entitled to have the contract of sale of said car to him rescinded; the amounts paid on that account returned to him and the note sued on cancelled and he relieved of liability thereon; and he prays accordingly.

He admits that he continued to make payments on said, note held by plaintiff, while the car was giving him so much trouble, but did so on the repeated prom-, ises of plaintiff’s agents and employees that the guarantee would be made good and the car' placed in satisfactory mechanical condition, which was not done, and for the additional reason he did not wish to be involved in a suit with plaintiff.

Before trial of the case plaintiff entered a remittitur of its demand in excess of $300, exclusive' of interest,’ and defendant did likewise to the amount of $206.28 on his reconventional demand, so that the City Court would have jurisdiction of the case.

The lower-court rejected the demand of-plaintiff and the reconventional demand of defendant; - decreed the sequestered ear to belong • to plaintiff and east • each side for half the costs. Plaintiff appealed:

Defendant has answered the appeal asking that the judgment of the lower court be affirmed in so far as it rejects plaintiff’s demand, and recognizes it the owner of thq car, but prays that it be amended by giving him judgment for $300 on his re-conventional demand.

A study of the record leaves no doubt in our minds that the car in question when purchased by defendant was in very bad mechanical condition, so much so that defendant would not have purchased it had he been wise to its vices. This is best disclosed from the fact that on June 15th, four days after date of purchase, defendant returned the car to plaintiff’s garage and complained of the car’s condition, and without question .or hesitation, so far as the record shows, plaintiff immediately did extensive and costly repairs to the car, without cost to defendant. The. motor knocked, spark .plugs leaked oil and the car had not the power needed to go up grade of any kind, save in low gear, and would, at times, stop entirely. The nature of these repairs is given by Mr. Morgan, service manager of plaintiff, as “grinding valves, put in new pistons, fix emergency lever, adjust transmission so it would not. ’ slip out of reverse g.ear, fix gas gauge on dash, make horn blow, fix lights, fix glass channel in left door,, fix. windshield wiper.” This work and the parts furnished amounted to $36.76. This effort did not seem to bring the results desired, and on July 5th and 30th, and on September 10th, additional repairs were made to the car costing $52.19, including labor, which was not charged to defendant. On one of these dates' an effort was made to take knock out of the valve assembly. From June 29, 1929, to March 14, 1930, labor on and repairs to the car amounted to $79.47, which was charged to defendant. During this period of some nine months the car was in plaintiff’s garage for labor or repairs over eighteen times, and on some occasions remained there for days.

We take it that the repairs made by plaintiff at its expense were necessary for the improvement of the car and were done out of a consciousness of obligation on its part, or else they would not have been made. However, plaintiff’s officers say that these were done out of a desire to please and satisfy defendant. It is contended by plaintiff that the car was abused while in defendant’s possession, hence ifs failure’ to function as expected. This is not established by the evidence. It would scarcely be contended, however, that abuse could have produced the condition of the car’s motor as revealed on June 15th, four days after sale to defendant, a condition which plaintiff sought to remedy at its expense, but which effort, the testimony shows, was not successful. If defendant had then delivered the car back to plaintiff ’ and refused to carry out his part of the sale he would have been within his rights. He was athletic director of the Y. M. C. A. of Shreveport, and desired a car for his and his wife’s pleasure as well as for use in connectiqn with the athletic activities of the Y. M. C. A. It is shown that on several trips with the basketball team of the Y. M. C. A. in this car it gave trouble; once a bearing burned out.

On trial of the case the lower court excluded all oral testimony offered by defendant to establish the alleged guarantee on part of plaintiff. Plaintiff admits that its obligation was to deliver the car in good running condition and insists that it was in such condition when delivered. We think the evidence referred to supra negatives this contention.

The exclusion of this evidence has no material bearing on the issues in the case. It is clear warranty was not waived by the parties, and as said in Standard Motor Car Co. v. St. Amant, 18 La. App. 298, 134 So. 279, 280.

“Whether or not he gave any such guaranty the contract carried with it the implied warranty that it was in running condition and ‘fit for the purpose intended.’
»}: s}s sj« jfc ‡ sj< Hfi
“The term ‘fit for the purpose intended’ we understand to mean the ordinary general use of an automobile.”

While no one should expect the same efficient service from a second-hand car as they would from a new one, still, where one agrees to pay as much as $800 for a six-cylinder car, shown to have been run only 16,000 miles, as in this case, he has the right to expect, at least for many months, reasonably efficient service from it. Crawford v. Abbot Auto Co., 157 La. 59, 101 So. 871; Jackson v. Breard Motor Co., 167 La. 857, 120 So. 478.

Warranty is implied in every sale, unless clearly excluded by the convention of the parties. C. C. art. 1764, par. 2; Crawford v. Abbott Auto. Co., 157 La. 59, 101 So. 871.

With respect to movables, warranty extends to hidden defects of the thing sold or its redhibitory vices. C. C. art. 2476.

“Redhibition is the avoidance of a sale on account qf some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” C. C. art. 2520.

It goes without saying that when a person purchases an automobile he primarily wants a vehicle that will meet his needs for it. A car that will not run, or one which runs intermittently, requiring the attention of a mechanic frequently to keep it going, is an abomination to the owner. In the present case the use of the car was so “inconvenient and imperfect” that it could not be supposed that defendant would have purchased it had he known of its defects or vices.

The recent case of Standard Motor Car Co. v. St. Amant, 18 La. App. 298, 134 So. 279, in many respects is similar to the case at bar. The legal principles therein discussed have peculiar application to this case. In that case the district court, under authority of article 2543, Civ. Code, reduced the price of the car in question, holding that the amount paid was all that defendant should be required to pay. This judgment was affirmed by First Circuit Court of Appeal. However, on rehearing, 18 La. App. 304, 138 So. 461, these judgments were reversed and judgment rendered in favor of plaintiff for the balance due on the purchase price. The court’s action on rehearing was largely predicated upon defendant’s attitude towards the unpaid notes due on the price when payment of them was demanded. He wrote plaintiff that on account of had collections he was unable to meet his obligations. At no time did he complain of the service the car gave him as a reason for not meeting the notes.

In the present case defendant testified that he complained to plaintiff frequently about the car’s running condition and repeatedly offered to return it to them, but was refused. His evidence on this point is not denied by plaintiff’s officers or employees. He continued to pay his notes for several months rather than invite litigation with plaintiff. We do not think, under the circumstances, he is now estopped or precluded from asserting the redhibitory vices of the car when he purchased it, and which were not remedied by plaintiff, after many attempts.

This car was in defendant’s possession thirteen months and during this time he had the use of it and the speedometer shows it had been run over 14,000 miles. This service was worth something to him.

“In a redhibitory suit the judge may decree merely a reduction of the price.” C. C. art. 2543; Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590.

We think the amount paid by defendant a sufficient price for the car in question and that he should not be required to pay more.

The lower court decreed plaintiff entitled to retain possession of the car in question, and defendant in answer to the appeal prays that that portion of the judgment be affirmed. But for this request we would reverse that part of the lower court’s judgment. However, we can'now only affirm it.

For the reasons herein assigned the judgment appealed from is affirmed at cost of plaintiff in both courts.


author: DREW, J.

text:
    No. 4246
    Second Circuit
    SAFETY TIRE SERVICE, INC., v. MUROV
    (April 5, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)
    (May 23, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant..
   DREW, J.

This is an action for damages arising out of a collision of a truck belonging tq plaintiff with a truck of defendant that was parked on the roadside. The amount of damages claimed by plaintiff is $1,039.81, with' legal interest thereon from December 19, 1930, until paid.

Plaintiff alleged' that its truck, driven by its employee, was coming towards Shreveport from Benton, Louisiana; that it was night and that' its driver was unable to see defendant’s truck standing on the road and ran into the rear end of said truck, thereby damaging plaintiff’s truck and the goods therein. It alleged the following acts of negligence on the part of defendant:

“In leaving the automobile truck with the end gate down and standing approximately in the center of the road, without lights or other warning signal which might show the presence of said truck on said highway at said time.
“In permitting said truck to be left on the highway at night, with the end gate down and extending about two and one-half feet from the rear of the bed of said truck and extending over the center of the highway, without any lights or other warning signals thereon in violation of the laws of the State of Louisiana, and with nothing to warn persons that said end gate was obstructing passage on said highway.
“In leaving said truck on said highway at night without lights or other signals or some persqn in attendance thereon to warn persons of the presence of said truck, and obstruction.”

Defendant denied the acts of negligence alleged by plaintiff, and alleged that the proximate cause of the accident was:

“* * * the negligence of the driver of plaintiff’s truck, acting within the scope of his employment and as agent of plaintiff, in driving plaintiff’s said truck at a speed in excess of that provided for in Act. 296 of the Acts of the State of Louisiana for the year 1928; in failing to keep a proper lookout on the road as he was driving at a high rate of speed, in failing to observe the truck of defendant in time to have avoided striking it; in driving at said high rate of speed while approaching and meeting a car proceeding in an opposite direction, with its lights shining so as to interfere with proper vision of the driver of plaintiff’s truck to observe the presence of another vehicle on the road, all of which negligence bars plaintiff’s recovery herein.”

In the alternative, it pleaded contributory negligence, as above alleged, in bar of plaintiff’s recovery.

There was judgment in the lower court in favor of plaintiff in the sum of $637.19, with legal interest thereon from judicial demand until paid; and'from this judgment defendant prosecuted this appeal. Plaintiff has answered the appeal, praying that the judgment be increased to $839.81, the increase consisting of items of $25, for towing the truck in after the wreck, and $77.62, for damage to the tires on the truck as merchandise. The facts disclosed by the record are as follows:

Defendant’s truck, traveling from Benton to Shreveport, broke down and could not be. moved by its own power. The driver pushed it down the road a distance of about 150 feet to a point in front of a negro house, where he left it. The two front wheels of the truck were off the pavement on the right-hand side, and the right rear wheel was also off the pavement. The rear left wheel was on the pavement, causing the truck to be in an angling position. The rear end gate of the truck was down, causing it to extend straight out behind the truck, as though it were a continuation of the floor of the truck. The road was paved and approximately eighteen feet wide, and the rear end of the end gate of the truck extended to within about two feet of the center line of the pavement.

When the driver left the truck in this position to go a distance of about one mile to a store to telephone his employer, the .sun was setting and, although the driver knew he could not make the trip to the store and back before dark, he failed to leave any lights burning on the truck.

Plaintiff’s truck was traveling from Benton towards Shreveport at a rate of 30 to 35 miles per hour, and, when nearing the parked truck of defendant was met by a car going towards Benton. Benton is north of Shreveport. The lights from this car blinded the driver of plaintiff’s truck until just about the time they passed each other, and, necessarily, the driver of plaintiff’s truck could not see back of the car, which was going north, on account of the lights. The driver of the car going north and plaintiff’s driver are very nearly together in their testimony as to where they passed. One says 40 feet north of the parked truck and the other says 50 feet north of it.

Plaintiff’s driver testified that immediately upon getting the glare of the lights of the northbound car out of his eyes, he saw the parked truck a distance of 40 feet ahead of him and attempted to cut behind the northbound car and to the left of the parked truck. He was not successful and struck the end gate of the parked truck. The parked truck was knocked a distance of 18 or 20 feet into a ditch, and plaintiff’s truck continued down the road a distance of 100 feet and turned over in a ditch on the other side of the road. The approximate weight of the parked truck was 3,500 pounds and of plaintiff’s truck 2,500 pounds.

The only part of the parked truck that came in contact with plaintiff’s truck was the left rear comer of the end gate. If the end gate had been closed, plaintiff’s truck would have passed without a collision and the resulting damage.

When its driver left the truck parked partly on the side of the road, it was his duty to see that it was as far off the road and created as little obstruction in the road as possible. There was no necessity for the end gate to be open, and the very fact that it was open caused the truck to be more of an obstruction in the road than it would have been had the end gate been closed. It was negligence for defendant’s driver to leave the end gate open and extending over the road. It was also negligence for the parked truck to be left unattended and without any lights displayed thereon after dark, and defendant is answerable in damages occasioned by the collision, unless it be shown that plaintiff’s driver was guilty of contributory negligence such as to bar its recovery.

Plaintiff’s driver was traveling at a rate of speed of 30 to 35 miles per hour just prior to meeting the car going north, and how much he reduced his speed is not shown. It is contended by defendant that he should have reduced his speed upon being blinded by the lights of the approach-’ ing car to such a speed as to have been able to stop immediately if faced with an emergency.

This court has adopted that principle of law in the case of Woodley & Collins v. Schuster’s Wholesale Grocery Co., 12 La. App. 467, 124 So. 559, affirmed by the Supreme Court in 170 La. 527, 128 So. 469. The same doctrine was announced in Pepper v. Walsworth, 6 La. App. 610; Ward v. Donahue, 8 L. App. 335; Locke v. Shreveport Laundries, Inc., 18 La. App. 169, 137 So. 645; Dominick v. Haynes Bros., 13 La. App. 434, 127 So. 31; Krousel v. Thieme et al., 13 La. App. 680, 128 So. 670; Raziano v. Trauth, 15 La. App. 650, 131 So. 212; Kern v. Knight et al., 13 La. App. 194, 127 So. 133, and Alston v. Cooley, 5 La. App. 623. And the Supreme Court of the state has announced a like doctrine in Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194, and Castile v. Richard, 157 La. 274, 102 So. 398, 37 A. L. R. 586.

We have also held that the automobile driver must keep a proper lookout ahead for obstructions in the highway, such as unlighted cars parked on the roadside, and cannot blindly drive along relying on the presumption that it is a violation of the law to leave an unlighted car parked on the roadside, and that no one will violate that law. Sexton v. Stiles, 15 La. App. 148, 130 So. 821 (writ refused by the Supreme Court).

It therefore follows that if plaintiff’s driver, when blinded by the lights of the car he was meeting, failed to reduce the speed of his truck to such a speed as to be able to stop the truck when confronted with the obstruction he was prevented from seeing, due to the blinding lights, he was guilty of negligence- such as would ordinarily bar recovery.

Plaintiff’s driver admits he was blinded and could not see the truck or any other object ahead of him, yet he failed to reduce his speed to such a gait as to be able to stop after seeing the parked truck, a distance of at least 40 feet in front of him, or to be able to turn to the left and avoid the collision. Just what speed he was making during the time he was blinded is not shown, but the very fact that he testified that he stepped on the brake and put on the emergency immediately upon seeing the parked truck, and still knocked the heavier parked car 18 to 20 feet when he struck it and continued down the road 100 feet before turning over in a ditch, more nearly corroborates the view that he was not traveling slowly and was not exercising the precaution required of him, on becoming blinded when meeting a car, as is required by Act No. 296 of 1928, par. 5. The negligence of plaintiff’s driver in this respect was a proximate cause of the accident and constituted contributory negligence such as to bar recovery.

Plaintiff relies on the case of Hanno v. Motor Freight Lines, Inc., decided by the First Circuit, Court of Appeal, and reported in 17 La. App. 62, 134 So. 317. The opinion of the majority of the court in that case is directly in conflict with the ruling of this court and the Supreme Court of the state in the case above cited. The dissenting opinion of Judge Elliott is more in conformity with what we consider the jurisprudence of this state, and a universal ruling, with few exceptions.

Plaintiff urges that the low visibility of the end gate should be taken into consideration and the theory urged is a correct one. But the evidence in this case does not fit his contentions. The driver of plain-' tiff’s truck does not contend that he collided with the end gate because he could not see it at the time he saw the truck. To the contrary, his testimony shows that due to the blinding lights of the northbound car he could not see any part of the truck and as soon as the lights passed, he saw the truck a distance of 40 feet away, with the end gate extending to the center of the road. According to his testimony, he saw the end gate as sqon as he saw the truck and as soon as he could see either, under the circumstances, and, if the speed of his truck had been reduced when he became blinded, as is required by law, he could have avoided the collision after seeing the truck.

The judgment of the lower court is erroneous and will have to he reversed. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed and the demands of plaintiff rejected, at its cost.


author: CULPEPPER, J.

text:
    No. 4151
    Second Circuit (First Division)
    OSBORNE v. PEOPLE’S BENEV. INDUSTRIAL LIFE INS. CO. OF LOUISIANA
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Leo Gold, of Alexandria, attorney for plaintiff, appellant.
    Lee J. Novo and G. Purnell Whittington, of Alexandria, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff sued to recover under an insurance policy covering life, sick, and accident insurance combined, i issued to plaintiff by the defendant com-I pany, of date June 21, 1920. From a judgment rejecting plaintiff’s demands, he has appealed.

It is alleged by plaintiff that the premiums on the policy had been kept paid, and that none were due at the time of the alleged accidental injury, which occurred on September 28, 1929, for which indemnity under the accidental indemnity clause therein is claimed.

Defendant in answer denies the allegation that all premiums were paid up at the date the injury is alleged to have occurred, denies that the injury complained of was accidental, but avers that same was caused to be inflicted upon plaintiff by reason of acts of his own which acts constituted violations of the laws of the state of Louisiana, and which constituted a violation of the conditions and covenants contained in paragraph 6 of the policy of insurance, which reads as follows:

“Neither shall it (the insurer) be liable for death or injury received while in the commission of, or as punishment for, some act in violation of any law, nor for injury, sickness or death resulting from the malicious or unlawful act or the culpable or intentional negligence of any beneficiary hereunder.”

Defendant also filed an exception of no right or cause of action, which appears to have been overruled by the court. We assume the exception has been abandoned, since same is not being .urged before this court.

Plaintiff brought proceedings by rule to take judgment on the face of the pleadings, after answer was filed, which upon trial of same was also denied. Plaintiff’s counsel has announced in brief filed that the rule has been abandoned due to the fact that defendant in its answer denied the allegation of payment of premiums. However, plaintiff now points out that upon the trial there was no evidence produced by defendant to show plaintiff had failed in keeping up payment of premiums, and that, by an examination of the answer, pafticularly paragraph 3 thereof, it will show, in view of the lack of evidence of non-payment of premiums that a legal defense was not set up and judgment should now be rendered for plaintiff for that reason without considering the case on the merits.

As we understand counsel, he now contends that, since no evidence was adduced upon the trial of the ease to' show non-payment of premiums on the policy, the defense fails for want of proof; that therefore the only remaining defense to the action is the defense, which counsel contends is a special one, that plaintiff’s injuries were due to and resulted from his. own acts of violations of the law; and, that, taking the averments contained in paragraph three of the answer to be true, defendant’s version of the incident, in connection with the infliction by Henry Hovell of the injuries complained of, negatives the contention that same were not accidental. While the paragraph in question is a lengthy recital of the incidents leading up to and which took place at the moment plaintiff was shot and injured by Hovell,. we do not think the recitals are such as to amount to a waiver of the special defense. A portion of the averments are that plaintiff went to Hovell’s store for the express purpose of cursing, abusing, and doing Hovell harm and injury, all of which, it is averred, was in violation of the law; that upon arrival at the store, plaintiff cursed Hovell, walked around the counter where Hovell was standing, approached him with his right hand in his bosom and left hand in his pocket; that, as he approached Hovell, he undertook to draw a pistol from his bosom cursing Hovell and saying as he did so that he was going to kill him, and, as thus approaching Hovell, Hovell reached under his counter, secured a pistol, and shot plaintiff in defense of his own life. It'is further averred that pláintiff was the aggressor and brought on the difficulty; that Hovell was at the time engaged in .the peaceful pursuit of his own affairs in his own place of business.

While it is true, as able counsel in his lengthy and well-written brief points out, that our courts have held (citing Quatray v. Wicker et al., 16 La. App. 515, 134 So. 313) that evidence of a conviction or acquittal for the same occurrence giving rise to a civil action is not admissible in the civil action, yet we think that, where the allegations and proof set forth and show that the party seeking damages in a civil action arising out of acts of a criminal nature was the aggressor, as has been alleged, and we think abundantly proven in this case, it will corroborate the contention that plaintiff was engaged in committing acts in violation of the law at the time he was injured.

The paragraph contains the following language:

“That plaintiff walked round the counter where the said Henry Hovell was standing and anproached him with his right hand in his shirt bosom and left hand in his pocket. That as plaintiff approached the said Henry Hovell he undertook to draw a pistol from his bosom, saying as he did so, ‘you dirty s- of a b-, I am going to kill you tonight,’ and as he approached said Henry Hovell in the manner above set forth and undertook to draw said pistol for the purpose of killing the said Henry Hovell, the said Henry Hovell reached under the counter, drew a pistol and in defense of his own life * * * shot at plaintiff.”

It is contended by plaintiff that .this does not set forth acts in violation of any law; that under the terms of the policy, in order to show a legal defense against recovery for an alleged accidental injury, it must be averred in the answer that at the moment the injury was inflicted plaintiff was actually engaged in the commission of an unlawful act, counsel citing numerous authorities. We have examined most of these authorities and they appear to show counsel’s contention to be the correct principle of the law on the subject. Co'unsel contends that defendant has not averred acts on the part of plaintiff at the moment of the infliction of the injuries, such as to constitute a violation of any law; and therefore it is urged that, in view of the fact that objections were urged upon the trial of the case to the introduction of any and all testimony in support of the averments as made,- the objections should now be sustained and the testimony in that connection disregarded.

In that connection, as we view the reasons. for the objections, they were that such testimony, under counsel’s theory of the case, would be enlarging the pleadings.'

To determine whether plaintiff’s acts at the time he was injured constituted acts in violation of law, according to the language of the policy, “the commission of * * * some act in violation of any law,” it will be necessary to refer to the definitions of some of the crimes or misdemeanors given in the statutes or by the law-writers on the subject.

Under section 797 of the Revised Statutes of Louisiana, i-t is a violation of the law for one person to make an assault upon another.

“An assault is an intentional attempt, by violence, to do an injury to the person of another.” State v. Davis 23 N. C. (1 Iredell’s Law) 125, 35 Am. Dec. 735.
“Assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” Words & Phrases, Third Series, 642; People v. Cieslak, 319 Ill. 221, 149 N. E. 815.

Assault does not include battery but battery includes assault. Harris v. State, 15 Okl. Cr. 369, 177 P. 122.

In State v. Davis, above cited, the court uses the following language:

“It is difficult in practice, to draw tjie precise line which separates violence menaced from violence begun to be executed —for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by any act, which, if not stopped — or diverted — will be followed by personal injury — the execution of the purpose is then begun — the battery is attempted.
“Thus, riding after a person — so as to compel him to run into a garden for shelter to avoid being beaten, has been adjudged to be an assault. Morton v. Shoppie, 3 Car. & P. 373. So, in a late ca^e, before a very eminent English judge, it was held, that where the defendant was advancing in a threatening attitude, with intent to strike the plaintiff, so that his blow would, in a second or two, have reached the plaintiff, if he had not been stopped, although when stopped he was not near enough to strike, an assault was committed. Stephen v. Myers, 4 Car. & P. 349.”

Volume I, Words & Phrases (Third Series) at pages 642-644, used the following illustrations from authorities in discussing assault with deadly weapon:

“In prosecution for assault with deadly weapon, where accused visited wife’s apartment with a revolver in his sock, evidence held sufficient to show intention and present ability to kill her as elements, of an ‘assault,’ which is an unlawful attempt, coupled with present ability, to commit a violent injury on a person.” People v. Hunter, 71 Cal. App. 315, 235 P. 67.
“An ‘assault’ necessarily includes an attempt, and consists of an unlawful attempt or offer to apply force to another with intent to do physical injury, and with the' present means to give it effect.” State v. Roby, 194 Iowa, 1032, 188 N. W. 709, 711.
“An intention to do harm is of the essence of an assault.” State v. Kunkel (Mo. App.) 244 S. W. 968, 969.
“To render one guilty of assault, it is. sufficient that the act done is with intent to put the party assailed in fear or apprehension of bodily harm, though with no intent to strike, and that by the act he is in fact put in well-founded fear or apprehension of such harm.” Burgess v. Commonwealth, 136 Va. 697, 118 S. E. 273, 275.
“A bare intent to commit an assault unless. followed by some hostile demonstration will not constitute an assault.” State v. Lemon (Mo.) 263 S. W. 186, 188.

Under the above definitions of assault, the answer, we think, sets forth a legal defense, and therefore the objections urged to the testimony were properly overruled.

The proof in support of the averments in the answer appears ample as going to show that plaintiff, Mathew Osborne, was at the moment Henry Hovell shot him, actually and in fact committing the unlawful act of an assault upon Hovell.

Hovell testified, and his testimony was corroborated by the testimony of three other disinterested witnesses, that, when Osborne came into Hovell’s store, he had his right hand in his bosom, his left hand in his pocket, and immediately began cursing Hovell and telling Hovell he was going to kill him; that he proceeded to walk around behind the counter where Hovell was standing, and continued in that threatening and menacing manner approaching Hovell until within only a few feet of Hovell when Hovell shot him. Hovell, in giving an account of Osborne’s actions, testified (quoting) :

“He. came in with his right hand in his bosom, left hand in his pocket, cursing me for everything he could call me, walking to the back of the store; then turned and came behind the counter and said, ‘You dirty s--b- I am going to kill you tonight.’ Then starts up with his gun and when he did, I shot him.
“Q. He made an actual attempt on your life?
“A. Yes, sir.
“Q. Did you see the gun, Henry?
“A. Yes, sir.
“Q. Then you shot him?
“A. Yes, sir.”

The other three witnesses all testified to the same effect, except that they say they did not see the gun (pistol). They explained, however, that Osborne, at the time Hovell shot, was behind the counter from where they were standing, and they could see Osborne only from his shoulders up on account of some boxes on the counter which obstructed the view.

One of these witnesses, W. H. Howard, was asked:

“Q. Were you given the impression that Osborne meant business?
“A. Yes, sir, sure did.
“Q. And that he really was going to kill Henry Hovell?
“A. Yes, sir, I believe that.”

The other two eyewitnesses testified to the same effect. Hovell declared he shot Osborne in self-defense.

Plaintiff testified he had no gun of any kind at the time. Admits that he had his hand in his bosom and cursed Hovell and walked around the counter to where Hovell was standing, but that he did so as a joke and in fun, just to frighten Hovell, knowing Hovell was excitable and easily frightened, and that he and Hovell had on many occasions previous jokingly cursed one another, and that they were good friends. Says he had no intention of hurting Hovell. Hovell, however, denies that he and plaintiff were good friends, and denies that they had ever cursed or joked at one another, but on the contrary he had asked Osborne to stay away from his store, told him to stay away, and even that Osborne had treated him “so dirty” he had a number of times shut his store to prevent Osborne from entering when he would see him coming.

It is in evidence that, when plaintiff was taken up from the street, where he walked to after being shot, no pistol was found on or about his person; that some few minutes had elapsed from the time he was shot until he was noticed by some one passing and was picked up and carried to the hospital. There was. also the evidence of his mother and one or two others that no pistol was seen on his person when he left his mother’s home, only a short distance away, to go to Hovell’s store. Plaintiff testified,, as also did his mother, that his purpose in going to the store was to buy some food to be eaten at his mother’s home. He states that as he entered the store he cursed Hovell and at the same time asked for rolls- of bread and potted ham. Hovell denies that plaintiff called for any food of any kind when he entered •the store.

The trial judge, who saw and heard the witnesses testify, resolvéd these conflicting statements against the plaintiff, and we think properly so. We think the plaintiff has failed in his proof, and that defendant has shown by a preponderance of the testimony that plaintiff, at the moment he was shot and injured, was in the act of committing an assault upon Henry Hovell, which constituted a violation of the law of this state, such as is contemplated under the terms, of the policy sued upon. All of the elements indicative of the act of commission of an assault were, we think, shown by the testimony to be present. That the intent was present has been amply proven.

Intent may be shown by a person’s actions as well, or even better, than words he might utter. The old adage that “Actions speak louder than words” is true. Plaintiff’s actions were loud-spoken in evidencing his intent to do violent injury to the person of Henry Hovell, as has been amply proven; and, in addition, he said, in unmistakable words, that he intended to do so.

That plaintiff actually attempted to do violence is shown by the testimony of Hovell who testified positively that plaintiff was in the act of pulling his pistol from his bosom the moment Hovell shot him. This was a hostile demonstration. It is true, plaintiff denies he made any such attempt, but Hovell is corroborated in his statement by that of the three witnesses present, whose testimony is that plaintiff was cursing Hovell, saying he was going to kill him, was advancing upon or had advanced to within a few feet of him, and, as it appeared to these witnesses, was at the moment about to carry out his threats. Evidently, the trial judge believed Hovell’s testimony in this particular.

As to plaintiff’s ability or means by which to injure Hovell, the same can be said in that particular and the same conclusions reached with equally as much certainty and correctness, as can be said about the attempt. Hovell testified positively that he saw plaintiff’s pistol in his bosom and was certain that it was a pistol. Every act and word of plaintiff at the time strongly indicated that he did have one. The witnesses thought so, and so did the court, evidently, and this court thinks the evidence affirmatively establishes that fact.

That the violation of the law thus being committed by the plaintiff, at the moment he was shot and injured, was the direct, actual, legitimate, and proximate cause of the injuries, there can be no question.

For the reasons assigned, therefore, the judgment appealed from is, we think, correct, and same is affirmed.


text:
    No. 4251
    Second Circuit
    EWELL v. GIAMANCO (CHOCTAW CHEVROLET CO., INC., Intervener)
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)

      Overton, Dawkins & McSween, of Alexandria, attorneys for plaintiff, appellee.
    Couvillion & Couvillion, of Marksville, attorneys for defendant, appellant.
   CULPEPPER, J.

The Choctaw Chevrolet Co., Inc., intervener and third opponent herein, at the time of the filing of the suit was engaged in the sale of Chevrolet automobiles and used cars of various kinds at its place of business in Marksville, Avoyelles parish. It is alleged in the petition of intervention that Loretto Giamanco, of Cheneyville, Rapides parish, called at its place of business on October 5, 1931, with the view of trading in an old Chevrolet oabriolet, which he owned and brought with him, for one of intervener’s used cars; that intervener made a deal with said Giamanco whereby it conditionally sold to him a Chevrolet used car, roadster type, model 1929, motor No. 779810, which is the car in controversy herein, for the price of $250. Giamanco was to give intervener his old car, valued at $50, in trade, and pay $25 additional in cash, and the balance to be on terms of credit; that, as was its custom in selling used cars, intervener permitted Giamanco to carry said car home and keep it until October 10, 1931, to try it out and test it to see if he was satisfied with it, it being verbally agreed and understood that if Giamanco was not satisfied with the car he was to return it by the 10th of the month, but if satisfied he need not return it, and intervener would consider it a closed sale; that (quoting paragraph 6):

‘Wour petitioner shows that the said Giamanco left his old car in petitioner’s possession as well as — $25.00—which your petitioner entered as a customer’s deposit, and, at the same time, executed a deed of sale and chattel mortgage covering this •transaction to avoid said Giamanco making another trip to sign same, if said car proved satisfactory, the understanding with your petitioner being that at the end of the trial term, that is, on Saturday, October 10, 1931, if the said Giamanco did not return the used car taken by him, then the sale would be considered as made and completed, and your petitioner would be entitled to retain and keep the used car left by said Giamanco, together with the— $25.00 deposit, and to record the deed of sale and chattel mortgage — ; that, until such time there was no sale and the car held by Giamanco was still your peti; tioner’s.”

It transpired that on the following day, October 6th, this car was provisionally seized while in Giamanco’s possession or control at Cheneyville by Joseph S. Ewell, plaintiff in this suit, and Ewell is seeking to have it sold by the sheriff in satisfaction of his claim for rent on the plantation under lease by Ewell to defendant in the suit.

The Choctaw Chevrolet Company, Inc., alleges further that said Giamanco informed the sheriff at the time of the seizure that the car did not belong to him, and advised the sheriff of the facts as alleged; also, that intervener so advised the sheriff and the plaintiff in suit, and demanded the release of the car, but to no avail.

Said company has filed this intervention and third opposition, setting up ownership of the seized automobile, prays that the sale by the sheriff be enjoined, that it be' decreed the owner and sent into possession of the property, and for damages and for general and equitable relief.

Upon the trial of the intervention, the plaintiff in intervention placed upon the witness stand P. Earl Neilson, the person in charge of intervener’s business, and who, it appears, made the deal with Giamanco for the sale of the car in question. Neilson was asked if he had a business transaction with L. J. Giamanco (meaning Loretto Giamanco) on the 5th of October, 1931, and the answer was “Yes.” Then counsel propounded the question, “Please state to the Court what that transaction was.” Counsel for defendant in intervention made the following objection:

“Counsel for defendant in this intervention objects to the question for the reason, first, that in Paragraph Six of plaintiff’s petition it is affirmatively averred that plaintiff executed in favor of the said Giamanco a deed of sale and chattel mortgage, covering the sale referred to, which was npt placed of record, and it would follow that the written agreement between thq parties would be the best evidence of the nature of their agreement or transaction.
“It is further objected to for the reason that the plaintiff is the vendor in such transaction and the vendee is the only one who can legally assert the invalidity or non-execution of such sale, and
“Further, that plaintiff having perfected the sale by delivery of the car to Giamanco is estopped insofar as. the seizing creditor, Ewell, is concerned, to asserting any title to the car, which is movable property.”

The judge sustained these objections, stating, as his reasons, that the written agreement would be the best evidence.

After several questions in an effort to elicit from the witness an explanation of the verbal agreement had between him and Giamanco on the occasion of the execution of the written contract of sale and chattel mortgage, the purport of which 'was presumably to show a conditional sale as alleged on in the petition, all of which questions were met by objections similar to those above shown, counsel then offered the written contract of sale and mortgage for the purpose, as counsel states, “of exhibiting its confection,” to which offering opposing counsel objected on the ground “that it is offered avowedly for the limited purpose of confection, when it is admissible and should be admitted for its. entirety.” This objection was likewise sustained by the court, to which ruling counsel for intervener excepted and reserved a bill of exceptions.

Counsel then offered and was permitted to file without objections the act without restrictions.

Counsel then asked witness the following question:

“Q. Now, was this contract signed between yourself and Mr. Giamanco to be effective at the time of its execution or was it merely to avoid a subsequent visit to your place of business for the purpose of executing it at a later date?”

Opposing counsel interposed the objection :

“That same is an attempt to vary, alter and contradict a written instrument as to matters and things contemporaneous with the agreement or prior to the execution of the agreement, and that the contract is the sole and only evidence of the agreement between the parties at the time of its execution or prior thereto.”

These objections were also sustained, and counsel then asked the question as follows:

“Q. Was this contract of sale, a chattel mortgage marked ‘Plaintiff A,’ evidence o% a sale made on that day with Giamanco or was it the understanding that the sale would not be made and completed until Saturday, October 10th, during which time he would have the trial of the car?”

This was objected to also for the same reasons previously urged, and the objections sustained.

Counsel then called Giamanco to the witness stand apparently for the purpose of eliciting the same testimony sought to be obtained from Neilson, and it was agreed between counsel that the same questions were asked him as were asked Neilson, and the same objections and rulings made.

There was judgment rejecting the demands of the plaintiff in intervention, and said plaintiff has appealed.

Counsel for intervener contends in oral argument and in brief before this court that the written contract of sale of the automobile was a conditional sale, was. not to be effective at the time of the execution of the written act, but was to become complete and take effect only after the lapse of five days from the date of the execution of the written act, during which period of time Giamanco was given possession of the automobile fon .the purpose of trying it out to see if it suited him; that it was to become a closed sale only if and when, and on the condition, that Giamanco should decide that the automobile was satisfactory, the period of trial not to exceed five days; that the period of time had not elapsed, hence the sale had not been perfected and the ownership of the car was still in intervener, notwithstanding that a formal written act purporting a sale had been entered into. The written act itself makes no mention of any agreement that the sale should not be deemed as completed until the purchaser had tried out the automobile. On its face it purports to be a sale and chattel mortgage executed in the usual manner and form for such acts. The agreement alleged to have been entered into at the time of the execution of the written act for the trial of the automobile as above set out was a verbal agreement, apparently had at the time, and was contemporaneous with the written instrument.

Counsel contends that testimony in support of this alleged verbal agreement should have been admitted, that the trial judge erred in excluding such testimony, and now asks this court to reverse the judgment and order the case remanded, and the trial judge instructed to admit the evidence.

Counsel contends that the rule which defendant in intervention invoked as against the admission of the evidence is not applicable to this case, that is, the rule that parole evidence is not admissible to vary, alter, or contradict the terms of a written instrument as to collateral agreements made at the time of or prior to the written act, or against or beyond the act; that intervener is not attempting to vary or contradict the written act, but is trying to show a conditional sale. Counsel further contends that the rule invoked by the defendant applies only to the parties to the contract and does not apply in a suit between one of the parties to the act and a third party, such as this case presents'. Counsel further points out that he endeavored to introduce the written act for a restricted purpose only, the purpose being to show “the reason for its, confection,” and that the trial judge erroneously excluded the offering for that purpose.

Defendant in intervention, in support of his contention that this testimony was properly excluded by the court, points out through counsel the general rule to be that where a contract is reduced to writing and signed by the parties, such as was. done in this case, in the absence of allegations of fraud, the best and only evidence as to its terms is the act itself, and that parole testimony cannot be received to vary its terms, stipulations, and conditions. But, that, like all other rules, this rule has an exception, the exception being that •the rule has no application to strangers, that is, third parties who are not parties privy to the written act. Counsel asserts •that this exception to the general rule has. itself an exception which is (quoting from lb R. C. L. 1021, par. 213) as follows:

“Where one, although not a party to the instrument, bases his claim upon it, and seeks to render it effective in his favor as against the other party to the action, by enforcing a right originating in the relation established by it, or which is founded upon it, the parole evidence rule applies.”

Counsel’s position, as we understand it, is that Joseph S. Ewell, defendant in intervention, based his seizure of the automobile upon the written act of sale, and that he is seeking to render the act effective in his. favor, hence comes under the above-quoted exception to the exception to the general rule.

In 8 Ann. Cas., page 350, the law writer, quoting the above rule, states that same is generally held. We understand from this expression that it may not be universally so held.

Referring to the law and jurisprudence of this state, we fail to find where such rule has been applied, or where our courts have applied the rule as above laid down, but have uniformly adhered to .the exception te the general rule without restricting the exception .to the stranger and not to the party to the instrument. In Commercial Germania Trust & Savings Bank v. White, 145 La. 59, 81 So. 753, 755, cited by counsel for intervener, the court, in discussing the rule that parole evidence shall not be admitted to contradict or vary the terms of a written instrument, says:

“That rule ‘is applied only in suits between the parties to the instrument.’ Greenleaf, Ev., sec. 279. And, of course, under familiar principles, the privies to the parties to the act come also within the rule.”

Following the above language, the court continues by saying:

' “In any controversy, therefore, between a party to the act and a stranger, .the party to the act is as free to avail himself of parole evidence for contradicting or varying the act as the stranger is.”

Following the above, the court, in giving reasons why a party to an act under such circumstances should be permitted to use parole testimony as a stranger, quotes approvingly from a New York case, McMaster v. Ins. Co., 55 N. Y. 222, 14 Am. Rep. 248, as follows:

“As, in a contention between a party to an instrument and a stranger to it, the stranger may give testimony by parol differing from the contents of the instru; ment, so the party to it is not to be at a disadvantage with his opponent, and he, -too, in such case, may give the same kind of testimony.”

As. we understand the ruling of the courts of this state, it has been that the rule of exclusion of parole testimony to contradict or vary the terms of a written instrument applies only to controversies between the parties to the instrument, and to their privies. Rush v. Landers, 107 La. 553, 32 So. 95, 57 L. R. A. 353; Succession of Murray, 41 La. Ann. 1113, 7 So. 126; Covington Lbr. Co. v. Stef, 12 Orleans App. 237.

If it is a fact, as was in substance alleged, that title to the automobile in question still remained in the Choctaw Chevrolet Co., Inc., at the time it was seized, and had only been conditionally sold, the condition being a suspensive one, as it appears that it was, parole proof may be admitted to show that fact. Blaushild v. Rockhold, 7 La. App. 709; Civ. Code, arts. 2027, 2037, 2043.

It is not infrequent that a seizure is made through error of property which does not belong to the debtor, and not subject to seizure for that reason. In such cases the true owner of the property has the right to show the fact of his ownership, even though the property was found at the time to be in the possession of the debtor. While possession is. a fact accompanying ownership, it does not in itself prove ownership. The two are separate and distinct. Civ. Code, art. 496. Neither is the written instrument the contract. A contract is an agreement by which one person obligates himself to another, etc., and it- must not be confounded with the instrument itself. Civ. Code, art. 1762.

“Parole evidence is admissible to show that a writing, in the form of a contract, never became operative as a contract. In other words, a separate agreement, constituting a condition precedent to the attaching of any obligation under the writing, may be shown by parole evidence.” 10 R. C. L., sec. 249, page 1053.

The objection that intervener affirmatively alleged that a written contract of sale was executed, and that the contract would be the best evidence of the nature of the agreement between the parties, overlooks the fact that the allegations went further than that and alleged a verbal contemporaneous agreement that the sale, as evidenced by the writing, should be held in suspense for five days, and that there should be no sale until the expiration of that period. Intervener, we think, was entitled to have his plea considered and passed upon as a whole, and not be restricted to just the written instrument. Davies v. Bierce, 114 La. 663, 38 So. 488.

Intervener referred to the written act in its petition, not that it was relying upon the act, but for the purpose of explaining why it existed, and its connection with the verbal agreement, and to show the transaction as a whole. Intervener’s reliance to prove ownership of the seized automobile was upon the verbal agreement to show it had never parted with ownership. We think intervener should have been permitted to prove, if it be a fact, as alleged, that it was the owner. And in that connection it should have been permitted, under the rules of law, as well as of equity, to show the real and true facts surrounding the transaction as a whole. We think that intervener should have been permitted to file in evidence the written act for the restricted purpose of rem ipsam, as the commencement of proof, and with the view of exhibiting to the court all of the facts and circumstances connected with the main fact relied on. We think the court erred in his rulings complained of by appellant.

Defendant in intervention, in connection with answer, filed an exception of no cause or right of action, which was apparently referred to the merits by agreement. Since the judgment is apparently on the merits, we assume the court in effect overruled the exception.

Counsel in brief states the exception is good and should be sustained because of the absence of any averment in intervener’s petition to the effect'that Giamaneo found the car unsatisfactory and would have returned it but for the fact that it was seized; and that “a sale and return” is a sale to the extent that it vests title in the prospective vendee, and should such vendee sell said car or should it be seized by a creditor of such vendee, such sale or seizure wóuld be upheld. In view of the fact that the allegations show that the car was seized on October 6th, and that the contemplated sale was to be held in suspense until October 10th, would show that there had been no sale up to the' time of the seizure according to the pleadings. To determine whether Giamanco was satisfied and had decided to keep the car it would have been necessary that he be permitted to testify to that fact, and for that reason, no doubt, the exception was referred to the merits. The proper view, we think, is that the pleadings disclose a sale under a suspensive condition, and unless and until the condition is fulfilled there is. no sale, and the parties are left in the same position they were originally. We do not think under the law, and counsel has cited us to -no law to the contrary, that any title whatever can be considered as having vested in Giamanco to the car at the time it was seized, or at least the effect of .the pleadings is to that effect.

Counsel argues further to the exception that Giamanco alone, and not plaintiff in intervention, has the right to invoke the return of the car, and he is not endeavoring to do so in this law suit. We think so long as the suspensive condition exists, title to the car rests in plaintiff, who has the right to protect same by any legitimate means. The exception will therefore be overruled.

We think the testimony which was excluded should have been admitted for the purposes for which it was offered.

For the reasons assigned, it is therefore ordered and decreed that the judgment ap-, pealed from be reversed, and set aside, and it is now ordered that the case be remanded, to be proceeded with in accordance with the views, herein expressed.


author: WESTERFIELD, J.

text:
    No. 10,019
    Orleans
    HAWKINS v. COSTLEY ET AL.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    See previous, decision in 11 La. App. 602, 123 So. 367.

      Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    Spearing & Mabry, of New Orleans, attorneys. for defendants, appellees.
   WESTERFIELD, J.

This is a suit in which the plaintiff, alleging himself to be the holder in due course of a certain check issued by Frank D. Costley and indorsed by Dr. Robert A. Davis, seeks to recover the sum of $500, the face value of the check, plus. $3.50 as protest fees.

Defendant Davis answered, averring -in substance that the check had been given him by Costley, who had received due consideration therefor, and that immediately after receiving the check it was indorsed by him to the order of Hawkins. He called Costley in warranty and prayed for judgment in his favor and against Costley for whatever sum judgment might be rendered against him. Costley answered, denying that plaintiff was a holder in due course and called Davis in warranty.

There was judgment below in favor of plaintiff and against Davis in the sum prayed for, and in favor of Costley and against plaintiff, dismissing plaintiff’s suit as in case of nonsuit. It was further decreed that both calls in warranty be dismissed as in case of nonsuit. From this judgment plaintiff appealed to this court. In disposing of the case in defendant’s-favor, we held that the testimony of plaintiff’s witnesses, which had been taken under a commission, was fatally defective, in that certain questions propounded on cross-examination were not answered and certain documents, called for were not attached. 11 La. App. 602, 123 So. 367. The decision of this court was reviewed by the Supreme Court on a writ of certiorari (169 La. 229, 124 So. 837), and that court held that we were in error, and that the evidence of plaintiff was admissible, and remanded the case to this court for further consideration.

Costley’s defense, to the effect that plaintiff was not a holder in due course, is based upon the contention that Davis, from whom the plaintiff acquired the check, was in bad faith, and that plaintiff was in some way, not very clearly set forth, involved therein.

It appears from the testimony that Dr. Davis was connected with the oil prospecting business in El Dorado, Ark., and invited Costley to join him in his venture, saying that he (Davis) intended to organize a corporation and raise capital to the extent of $20,000. Costley was induced to invest $500 in the enterprise and gave Davis his check for that amount. He claims that Davis had agreed to hold his check, together with others which he would receive from time to time, in trust until the $20,000 was fully subscribed. Just after parting with his check to Davis, Costley changed his mind and called Davis on the telephone, notified him to that effect, and requested the return of his check and later stopped payment thereon. The check was not returned, however, but sent at once to Hawkins, the plaintiff, who resided in El Dorado, and was paid out by Hawkins- for the account of Davis; that is, an amount equal to the face of the check was paid by Davis to certain laborers to whom Davis was indebted.

It is the contention of Costley’s counsel that Davis had no right to use the check, that he was not the owner of it and had no right to dispose of it, and that Hawkins, to whom it had been sent, could have no greater right than Davis, citing, in support of this contention, William Frantz & Co. v. Fink, 125 La. 1013, 52 So. 131, 28 L. R. A. (N. S.) 539, and William Frantz & Co. v. Winehill, 124 La. 680, 50 So. 650. The cases cited are not apposite here because the principle announced therein has no relation to commercial paper.

Section 185 of Act 64 of 1904, the negotiable instrument law provides:

“A ch.eck is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.’’

Section 52 of this act defines a holder in due course as follows:

“A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That it is complete and regular upon its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith an<i for value;
"4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

With the evidence before us which was excluded from consideration in our former decision, we have no difficulty in holding that plaintiff was a holder in due course. There is not the slightest evidence in the record to indicate that Hawkins had any knowledge whatever concerning the alleged misrepresentation of Davis, with respect to his intention to hold the check until others had been received, aggregating $20,000, nor that he had any knowledge of Costley’s attempt to withdraw from the Davis enterprise. Hawkins received the check, placed it to his account, and checked out a sum for account of Davis slightly in excess of $500, the face of the check. Upon the dishonor of the check his. account was charged with the $500.

We believe that Hawkins is entitled to recover, and consequently, for. the reasons assigned, the judgment appealed from is reversed, in so far as it fails to award judgment in plaintiff’s favor and against defendant Costley, and it is now ordered that plaintiff, W. W. Hawkins, have judgment in his favor and against the defendants, Frank D. Costley and Robert A. Davis, in solido, for the sum of $503.50, with legal interest thereon from judicial demand until paid. In all other respects the judgment appealed from is affirmed.