text:
    No. 12,702.
    State ex rel. Atkins & Wideman, in Liquidation, vs. Allen Barksdale, Judge, et als.
    This court on application for a writ of certiorari does not try the merits, but confines itself to inquiring whether or not the inferior tribunal kept within its jurisdiction aud proceeded regularly.
    In the order the respondent court returns the exceptions and the answers were filed in the justice of the peace court; the respondent court properly held that the relator had waived jurisdiction.ratioiie persona in the magistrate’s court
    Matters not regularly appearing of record'gwere not before the court, and could not therefore traverse the return made.
    QN Application for Writs of Oertiorari and Prohibition.

      J. G. Theus for Relators.
    Respondent Judge pro se.

      B. A. Bennolds for the Other Respondents.
    Submitted on briefs January 3, 1898.
    Opinion handed down January 10, 1898.
    On Application for Writs of Oertiorari and Prohibition.
   The opinion of the court was delivered by

Breaux, J.

This was an application under the supervisory jurisdiction of this court to have a judgment declared null; it was rendered by the respondent judge of .the District Oourt for Olaiborne parish, and it affirmed a judgment of the justice court of ward six, parish of Claiborne.

The complaint was that the relator firm, was a resident of the parish of Bienville, and not a resident of the parish of Olaiborne, in which the magistrate rendered the judgment relator seeks to assail.

The facts are that the relator interposed several exceptions as defendant before the magistrate’s court.

They were referred to be tried with the merits. There was no objection urged to the reference as made. An answer was filed by the defendant firm. The case was heard upon the merits and was decided against the defendant firm, who is the relator here. The defendant firm took an appeal to the District Oourt. There the case was tried upon the merits and a judgment affirming the judgment of the justice court was rendered as before stated.

The respondent judge represents, in his return, that he was vested with jurisdiction, and that he correctly passed upon the questions' presented on relator’s appeal to his court; that he was convinced that the justice of the peace had jurisdiction ratione personas, and that if he had no jurisdiction originally, that relator had waived the want of jurisdiction ratione personae.

Before the court of the respondent judge it, as relates to a waiver of jurisdiction, was m.ade to appear that the relator, defendant in suit below, first filed exceptions to plaintiff’s action, and that subsequently he (relator) filed a plea to the court’s jurisdiction ration personae.

If we were to assume that the magistrate’s court originally had no jurisdiction, the defence ou the exception was entirely personal. The question, arising in matter of waiver,' was one exclusively of fact, and was one over which the respondent had jurisdiction. The defendant (relator here) could stand in judgment, and the court’s decision and the court’s return shows that it did appear that it had waived the exception it now invokes and stood in judgment — i. e., prior to its plea of want of jurisdiction ratione personae an exception had been separately filed in effect waiving jurisdiction. If there was error it was one of judgment of respondent regarding the facts. In our view the decision can not be controlled under the supervisory power of this court. , Our examination must be confined to the .validity of the proceedings, and it can not consistently with prior decisions of this court be extended to a review of the facts on the merits of a question.

The respondent judge has decided that the exception waiving the plea of jurisdiction was filed prior to the exception to the jurisdiction.

In that case there was a waiver. Stevenson vs. Whitney, Tax Collector, 33 An. 655; Phipps vs. Snodgrass, 31 An. 88; Marqueze & Co. vs. LeBlanc, 29 An. 194.

The judge had the legal power to decide the question of priority in filing pleas and he has decided it without disregarding or overlooking the forms pointed out by law. The record before us shows no incorrectness in the proceedings.

It has been repeatedly held by this court that the writ of certiorari is limited*to cases in which the proceedings are null. It is also well settled that one who gave sanction to proceedings can not have them avoided through the writ of certiorari.

The relator sought, by offering here for the first time, an affidavit of the justice of the peace of facts and proceedings (of date subsequent to the judgment complained of), to contradict the return of the respondent. The affidavit was not a part of the respondent’s return, and was made ex parte by the magistrate, who is not at all a party to these proceedings. For these reasons, it was not considered by us as forming part of these proceedings.

A legal discretion exercised in a matter within the court’s jurisdiction offers no ground for certiorari or prohibition. City of Baton Rouge vs. Crimonini, 35 An. 366.

Moreover, it does not appear affirmatively that the respondent committed an error. The burden of proof was with relator. The presumption omnia rite acta applies. Stevenson vs. Whitney, Tax Collector, 33 An. 658.

The facts are not before the court showing that the documents were filed differently from what is stated by the District Judge.

It is therefore ordered and adjudged that the rule nisi be discharged, and the application for writs of certiorari and prohibition refused.


source: Caselaw Access Project

author: Watkins, J. Blanchard, J.

license: Public Domain

text:
    No. 12,671.
    James T. Chivers vs. Ernest Roger.
    'The right of action which survives in favor of certain designated persons as beneficiaries, for the recovery of damages for personal injuries to a deceased, perishes with the deceased claimant, notwithstanding suit has been filed and put at issue by an answér.

      An action for damages for personal injuries arising ax delicto does not survive the death of the claimant, in case in results from the injury inflicted.
    The general rule is, as established by the Civil Code, and Code of Practice, that an action does not abate by the death of the plaintiff after answer filed; but the right of action for the recovery of damages to an injured person who dies from the effect of the injuries received survives only upon the express terms of the act of 1894, and in favor of the beneficiaries therein designated, and its provisions must be construed strictly.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caill’ouet, J.

      Beattie & Beattie for Plaintiff, Appellant.

      ■Clay Knobloeh & Son for Defendant, Appellee.
    Submitted on briefs December 28, 1897.
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Watkins, J.

This is an action for the recovery of twenty-five thousand dollars damages for the death of the plaintiff’s son, which was caused by the alleged negligence and want of care on the part of the defendant.

It is alleged that the deceased was employed in the sugar factory of the defendant as a sugar maker, “ and was literally cooked to death in a vat of boiling water,” and that “having suffered untold pain and anguish,” he died soon after the accident happened.

The cause was tried and submitted on the 23d of March, 1896, but on account of the near approach of the adjournment of the' court, an agreement of parties was reached, that the decision of the court might be rendered at the next] term of the court; but that, at that time, no judgment; was'rendered.

• That on the 18th of September, 1896, the plaintiff, James T. Chivers, died, and on the 30th of that month his heirs were duly cited and made parties plaintiff'to the suit.

That the judge’ a quo refused in this attitude of the case to pass upon the merits, but dismissed the suit on the ground that the plaintiff having died, his right of action for the damages claimed did not survive him, and continue in favor of his heirs.

It is from the judgment of dismissal that the heirs of the deceased plaintiff prosecute this appeal.

The contention of the plaintiff’s counsel is, that the law gave to the plaintiff, James T. Ohivers, the right to institute this suit against the defendant for the recovery of the damages his son had suffered at his hands, resulting in his death; and having instituted the suit, and obtained a contradictory trial thereof in the District Oourt, prior to his death — notwithstanding no judgment had been pronounced upon the issue joined — his right of action survived him and became vested in his legal heirs as an inheritance, entitling them to prosecute the suit to final judgment. Revised Civil Code, 2315, 944, 945.

Per contra, the contention of the defendant’s counsel is, that the precept of the civil law, and that of the common law as well, is, that an action which is merely personal, one arising ex delicto, perishes with the person who is entitled to it.

Actio personalis moritur cum persona. 4 Institutes, 315; 3 Black - stone Com. 302.

That, by the positive terms of our law, this right of action survives in case of the death of the claimant, in favor of the minor children or widow of the deceased; or in default of the same, in favor of the surviving father or mother. R. C. 0. 2315.

That in the event of neither the beneficiaries named having survived the deceased claimant, the right of action abates, and ceases altogether.

The purport of this contention is, that if the heirs of the parent, James T. Chivers, are recognized as having acquired a right of action by inheritance from him at his death, it would be in effect, to enlarge the provisions of Revised Civil Code, 2315, and the statute of 1884 amending it, by conferring same upon a class of persons that is not included in either.

Our learned brother of the District Oourt prepared an interesting and instructive opinion, in the course of which hq says:

“ It seems clear to my mind, that if the plaintiff had died before bringing this suit the right of action would have expired with him.
“ His heirs could not have brought suit by right of representation, for they are not embodied in the statute,” and it must be construed strictly. Walton vs. Booth, 34 An. 914.

That “ the light was purely personal and not transmissible with the succession of the (plaintiff), but died with him.”

Again:

If this language ” — that of the Code and statute quoted — “ means anything, it means that the right of action shall exist for the space of one year after the death of the party injured in favor of, first, the minor children and widow; and of, second, the father and mother, or either of them. The right is to exist in favor of all, in the order named, during one year; so that, if the minor children and the Widow of the deceased should die within the year, and before having reached their right to possession, the right of action would descend, not to either heirs or legal representatives, but to the father and mother, or either of them, as the case may be. To hold otherwise would be to make persons not mentioned in the law the beneficiaries, to the exclusion of the beneficiaries expressly provided for in the law.
“ Such a conclusion has no foundation in law, or in reason.
“ It seems clear, therefore, that the right conferred is a purely personal one, which, if not reduced to possession, expires with the beneficiary.”

Our predecessors examined and construed the provisions of Art. 2294 of the Civil Code — Art. 2315 of the Revised Civil Code — to be inapplicable to a case in which death had resulted from personal injuries, and in the course of this opinion the court said:

“The plaintiff and her children, in this case, do not complain of wrongs to their own persons, and it can not be pretended that they had any right of property in their husband or father.
“ It appears to us, therefore, that without a special statute authorizing such actions, they can not be maintained.” Hubgh vs. Railroad Company, 6 An. 495.

The decision in that case was affirmed in Herman vs. Railroad Co., 11 An. 5, and in Earhart vs. Railroad Co., 17 An. 245.

It is well to recur to the provisions of the article of the Code, which are as follows, viz.:

“ Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair if; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them; and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death.” R. O. O. 2315 (2294).

It thus appears that “ the right of this action shall survive,” first, in favor of the minor children of the deceased; second, in favor of his widow, and third, in favor of the father and mother of the deceased, or either of them. Each of the persons acquires “ the right of this action” in the order named; and, obviously, the acquisition by one of' them of that right of action, would have the legal effect of excluding those who follow him.

The statute referred to enlarged the remedy which is afforded by the aforesaid article of the Oode, and supplemented it in the following terms, viz.:

“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband, or wife, as the case may be.” Act VI of 1884.

This court had occasion to construe and apply the provisions of hat statute in a recent case. Walton vs. Booth, 34 An. 913.

The case as stated in that opinion, was that of the father and mother who sought to recover damages of an apothecary who sold their daughter a dose ,of deadly poison by mistake, through the administration of which she died.

In that case an exception of no cause of action was taken; but same was by the court disallowed, on the ground that the right of action which the statute conferred was in favor of the father and mother of the deceased, and not of her husband, as contended.

On this question the court said:

“ The right of action which plaintiff’s daughter would have been entitled to exercise, if she had not died, did not survive in favor of her husband, but in favor of her father and mother.
“ Such aright accrued only in favor of the minor issue, the widow, the father and the mother, as regulated by the Oode. Those not included are excluded.
* :f: Hi * ♦ * %
“It took special legislation to bestow (the right of action) upon certain named beneficiaries, and that legislation can not be.liberally interpreted.”

It is noticeable that the act of 1884 merely supplied a remedy which the court held, in Hubgh vs. Railroad Company, did not exist under the Oode, that is to claim damages in a case of the death of the injured party, by means of the accident, but the Legislature carefully confined the transmission of the right of action therefor to “the survivors above mentioned” — that is to say, those who are mentioned in the Code. R. C. C. 2315.

The result of this investigation is, that the right of action for damages for a personal injury, whether the injured person died from the effect thereof, or subsequently, from some other cause, is just the same, under the legislative amendment of 1884, as it existed under the Code previously.

We are thus brought to the discussion of the principal question, whether or not the father’s right of action perished at his death, or survived his demise and vested in his legal heirs as part of their inheritance.

It is not doubted- — -on the contrary conceded — that had the father died without instituting an action for the recovery of the damages, the right of action would have lapsed altogether; but it is the contention of plaintiff’s counsel that a different rule obtains in a case like the instant one — suit having been filed, put at issue, and actually tried, during the lifetime of the plaintiff. ’’

They cite and rely on the provisions of the Code of Practice, which are as follows, viz.:

“ Actions do not abate by the death of one of the parties after answer filed.” Article 21, 361.

The provisions of the Revised Civil Code are to a like effect, for they declare, viz.:

“The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is, that the heir transmits the succession to his own heirs,” etc. Article 944 (our italics). “The second effect of this right is to authorize the heir to institute all actions, even possessory ones, which the deceased had a right to institute, and to prosecute those■ already commenced,” etc. Article 945 (our italics).

But the contention on the other side is, that conceding the full force of those articles of the codes, and the difficulty suggested is not overcome; because, under the well settled jurisprudence of this court, and the cited provisions of the Civil Code and its amendment, an action for the recovery of damages for personal injuries sustained is a purely personal one, and does not survive the death of the beneficiary. That consequently no right of action for damages for personal injuries, survives the death of a beneficiary, notwithstanding the Oode of Practice states the general rule to be that “actions do not abate by the death of one of the parties, after answer filed.”

To meet this proposition it is submitted on the other side that once a suit is filed and put at issue by an -answer, the action survives and passes at the death of the actor to his beneficiary heirs.

In solving this question we must keep in mind the underlying and cardinal distinction which exists between the Civil Oode and Oode of Practice, the former being the legislative embodiment of the civil law and the latter being a codification of the rules of practice.

In Beard vs. Russ, 34 An. 315, this court made this distinction between the provisions of the two codes.

It is true that our predecessors held in Vincent vs. Sharp, 9 An. 463, that a personal action for damages resulting from an assault and battery does not expire with the person who instituted it.

But that case was tried and decided in the District Court and á verdict of the jury rendered in favor of the plaintiffs, and from that judgment an appeal has been prosecuted. The plaintiff and appellee having died during the pendency of the appeal, counsel for the defendant and appellant insisted that the heirs of the deceased had no standing in court to prosecute the appeal, because the right of action lapsed at the death of the plaintiff and appellee.

On casual inspection that decision would seem to favor the plaintiff’s theory, but on reflection it does not.

That case was circumstanced differently from the instant one, in that it had ceased to be an action and had become merged into a judgment, and this court has decided that an appeal was not an action.

In Beard vs. Russ, supra, our predecessors said that “ it is clear that an appeal is a mere incident to an action, and not at all the same thing. The judgment is the result or the consequence of the action, and the appeal is the mode of seeking to have the judgment of the inferior court corrected by the appellate tribunal.”

A judgment is the property of him in whose favor it is rendered, therefore it may well be that a judgment would pass, at the death of one in whose favor it is rendered, to his heirs when an action pending would not, because the right of action had lapsed on account of his demise.

But there is a^marked distinction between the Vincent case and the instant one, in that the plaintiff in that case was himself the party injured, and instituted the suit for damages which he had suffered and recovered a judgment, and afterward died pending an appeal. On this statement, his heirs came within the plain terms of the Code.

The Code provides that the right of this action for personal injuries survives the death of the person injured, in favor of certain designated individuals, as beneficiaries in the order named; and in default of one or more of them, by death or otherwise, the next one in order acquires that right of action, in his or her favor.

If, then, one of the beneficiaries first enumerated should institute a suit and cause it to be put at issue, and thereafter die, and his beneficiary heirs should, on that account, inherit the pending action, the result would necessarily be to confer the benefit of the statute on persons not contemplated therein; and defeat the claim of the one who would otherwise have succeeded the deceased thereto.

The Supreme Court has furnished the true solution of this propo - sition in giving an interpretation to a statute of West Virginia quite similar in terms to that of our Code of Practice, Art. 21, in- the following extract, viz.:

“The reasonable inference is, that the clause relied on, like the rest of the chapter, is intended to prescribe the mode of procedure in actions, the cause of which survives, either at common law, or by virtue of other chapters of the Code; and that its whole effect is to avoid the necessity of bringing a new action when the right of action survives, and not to give a new right of action which did not exist before.” ■ (Italics are ours.)

Gerling, Administrator of Martin, vs. Railroad Company, 151 U.S. 673. There is a line of decisions by this court upon a similar question which bears a strong analogy to the instant ease; we refer to the cases in which it has been held that if the surviving widow, left in necessitous circumstances, dies without having actually received the sum of one thousand dollars, which the law accords her, same does not pass as an inheritance to her legal heirs at her death; because, say the court, “ the right of the widow is personal and does not constitute a part of her succession.” Succession of Durkin, 30 An. 669; Succession of Robertson, 28 An. 832; Succession of Tugwell, 43 An. 879: Succession of Justus, 44 An. 721.

True those decisions do not proceed upon the theory that the right of action of the widow is based upon a tort, or is one which arises ex delieto, bub on the theory that it arises upon a pure gratuity of the statute, which authorizes her to demand and receive that sum out of her husband’s succession in preference to his creditors. R. O. 0. 8252.

Being a provision of law in derogation of common right, same has always been strictly construed.

In the Tugwell case we said:

lt It is a right which must be asserted and reduced to possession; be. demanded and received before it is vested in the party.
A judgment obtained by the widow for the amount is not anymore heritable than the claim itself prior to its possession. The law mentions the widow and the minors as the beneficiaries. The widow having died before it was bestowed upon her — before it was severed from the estate, and before possession — the major heirs can not recover.”

That doctrine goes further than the exigencies of this case require that we should go; because the action of the deceased claimant had not been merged into a judgment. Nor need we hold that the two causes of action are similar; though they logically lead to the conclusion that the death of the claimant resulting during the pendency of the suit, notwithstanding an answer has been filed, the right of action perishes eo instanti, and the action ceases to exist.

Bub this doctrine is strictly confined, in the present case, to the beneficiaries’ right of action for the recovery of the damages which the predeceased injured person suffered, and which occasioned his death; and does not extend to a case in which a person has sustained personal injuries and subsequently dies fiiom some other cause.

There is undoubtedly strong argument in favor of the opposite view, but on mature reflection our deliberate conviction leads us to hold that the action has abated because the right of action perished with the death of the beneficiary, this opinion being more in consonance with the jurisprudence of this court.

Judgment affirmed.

Dissenting Opinion.

Blanchard, J.

The abstract right of action was not transmissible to the legal heirs of the plaintiff.

If he had not prior to his death instituted the suit, they could not do so after his death.

Bub that is not this case.

The father of the dead son had exercised his right of action.

He brought the suit claiming damages. 'It was tried, submitted and taken under advisement. Before the judge had prepared his opinion and rendered judgment the father and plaintiff died.

His right in the action already pending passed to his heirs.

Actions do not abate by the death of one of the parties after answer filed. C. P. 21, 361; C. C. 942, 943, 944, 945.

The opinion of the majority of the court rejects the distinction that should be drawn between the attempted exercise of a mere personal right of action, right to originate proceedings, right to institute suit, and the transmission to legal heirs of the right of property in an action already instituted, in proceedings already commenced.

The one is a right in posse, not transmissible; the other a right in esse, transmissible.

The right of action had accrued and been exercised before the death of the father. The mere right of action had, therefore, been merged, prior to his death, into the action itself.

What descended to the heirs was nob his right of action, but the action.

It was a property right and inheritable.

I respectfully dissent.


author: •Miller, J.

text:
    No. 12,567.
    Succession of Esteve Marqueze.
    1. The statement in the certificate to nuncupative will by public act, “ Before me, 0. R., a notary public for the parish of Orleans and city of New Orleans,” without “duly commissioned or sworn,” or other addition, is sufficient to express the official character of the notary.
    2. The law does not exact the use of the very words of the Code by the notary in the express mention required of him that the requisites of the will in nuncupative form by public act have been fulfilled. Hence, to describe the witnesses as all of this “ city,” following “ C. R., a notary public for the city of New Orleans,” is equivalent to stating the witnesses to be residents of New Orleans; and meets the requirements of the statement in the certificate of their residence. Civil Code, Art. 1578; C. N., Art. 97S; 16 La. 81; 40 An. 597; 2 Mourlon, p. 400; 2 Baudry-Lacantinerie, p.378; 16 Dalloz Repertoire, p. 818, par. 2835, p. 916, par. 3144; 3 Troplong, p. 118.
    3. The law does not require the mention in the will that the witnesses are not disqualified. O. O., Art. 1591.
    A PPEAD from the Civil District Court for the ^Parish of Orleans. King, *7.

      Theo. Cotonio for Plaintiffs and Intervenors, Appellants.

      Charles J. Théard for Defendants, Appellees.
    Argued and submitted November 18, 1897.
    Opinion handed down November 29, 1897.
    Rehearing refused February 7, 1898.
   The opinion of the court was delivered by

•Miller, J.

The plaintiffs, the legal heirs of the deceased, Esteve Marqueze, are appellants from the judgment dismissing their suit to annul the last will of the deceased in nuncupative form by public act. The grounds on which plaintiffs rely to maintain their suit are that the certificate does not show the capacity of the notary by whom it is stated the will was received, nor state the residence or the qualifications of the witnesses. The certificate of the notary in so far as it is material to this discussion is: “ Before me, Charles Rolle, a

notary for the parish of Orleans and city of New Orleans, therein residing, and in the presence of J. F. H. J. C. and M. H., all of this city, witnesses hereto required.”

The deficiency suggested in the statement of the capacity of the notary is, that it does not appear from the certificate he was commissioned by the executive and had taken the oath required of public officers. The statement he is a notary public for the parish and city fairly implies he was appointed and qualified. There is no form of expressing his capacity exacted by law. It suffices that the certificate in the usual significance affirms the capacity of the notary. “Faut il sous peine de nullite que le notaire enonce sa qualite. II suffit que le testament renferme des expressions equivalents, car la loi n’a pas prescrit cette enonciation expresse sous peine de nullitie.” Boileleux, Chapter 6, p. 8.

The Oode, in prescribing the requisites of the nuncupative will by public act, enumerates besides that it shall be received by the notary, the dictation by the testator, the writing by the notary as it is die - tated, the reading to the testator in the presence of the witnesses, the witnesses are to be residents of the place'where the will has been executed, and express mention is to be made of the whole in the certificate of the notary. O. 0. 1578. Under this article it is settled that th9 residence of the witnesses must appear in the notary’s certificate. LeBlanc vs. Barass Heirs, 16 La. 80; Weiek vs. Henne et als., 41 An. 1153; Succession of Vollmer, 40 An. 597. But the question is whether the certificate does not contain the equivalent of the statement of the residence of the witneáses. They are designated as “of this city,” referring to “for the parish of Orleans and city of New Orleans,” used in designating the notary. The French commentators dealing with Art. 973 of the Napoleon Code, correspond^ ing with Art. 1578 of the Revised Civil Code, have discarded the use of the very words of the Code as necessary to the statement in the notary’s certificate of compliance with the requisites of the will by authentic act. The lawmaker in other words has exacted no acramental words for the notary, but is satisfied if equivalent language is employed. While exacting express mention of compliance with the formalities requisite for wills in this form, the commentators all concur in the sufficiency of words equivalent to'those in the Code. Thus: “ Dureste il n’y a pas ici d’expressions sacramentelles; tout ce qui exige la loi c’est que la mention soit concue de telle maniere qu’ell contienne une affirmation non equivoque de l’observatiou de ctiacune des form ilites. 2 Mourlin, 400; 2 Baudry-Licantinerie, 378; 16 Dalloz Repertoire, 818, par. 2835. The words “ of the city of New Orleans,” used in this certificate to designate the residence of the witnesses, innatural significance conveys residence. It would be straining to suppose anything else was intended. This is the view too, of the French commentators. Thus: Ainsi jugé; qu’ii suffit de ces mots tels et tels endroit, qu’il n’est pas necessaire ¿’employer les mots demurant a. . . . . ; Que pareillment une cour d’appel a pu declarer, sans violer aucune loi, que l’enonciation suivante fait en presence de M!M. tous quatre de Sauveterre contient d’apres l’etat et la qualite des temoins, une indication suffisante de leurs demeures. 16 Dalloz Rep. p. 916, par. 3144. See also 3 Troplong p. 118. In the cases cited on behalf of the plaintiff the Court held that the expression “ competent witnesses ” announced the notary’s conclusion and would not suffice, and that the certificate was insufficient, and neither would “neighborhood” be a sufficient designation of residence. Here, however, the certificate uses the word equivalent to residence. We conclude, therefore, the certificate in this respect meets the legal requirement.

The law excludes as witnesses to wills women, children under sixteen, the deaf, dumb, blind, the insane, and persons disqualified by crime for civil functions. 0. 0., Art. 1591. It can hardly be deemed reasonable to hold the law required the certificate to. negative these disqualifications. Our jurisprudence, while exacting the mention of residence, has never sanctioned the necessity for the affirmance in the certificate that the witnesses were not disqualified. Nor do the French commentators, searching as they are in the examination of this subject, intimate any such essential in the certificate.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed with costs.


author: Nicholls, C. J.

text:
    No. 12,668.
    George Ingram et al. vs. Hypolite Laroussini.
    A parish judge, in writing at the foot of the petition of a mother praying appointment as tutrix of her minor children the words: “Let the prayer of the petitioner be granted and let her be qualified as natural tutrix of the minors,” follows the form usually employed by the probate court in granting orders for the appointment of tutors of minors.
    Article 321 of the Civil Code, which declares: “In the several cases in which the tutor is not required by law to give bond, it shall be the duty of the clerk of the District Court of the parish in which the appointment (of tutor) is made, to furnish a certificate of the amount of the minor’s property, according to the inventory on file in his office. This certificate must be recorded in the mortgage book of the parish in which the tutor resides and a certificate to that effect, signed by the recorder of mortgages, must be presented to the judge before he can make the appointment or authorize letters of tutorship to be issued,” is intended as a protection to the interest of minors, and not an instrumentality by means of which they can enrich themselves at the expense of the creditors of their father, under whom they claim as heirs.
    Where the succession of the father has been settled throughout, with the mother of the minor children of the deceased acting as its legal representative in her capacity as natural tutrix, and where, in the course of its administration, property has been sold on the application of such representative, and upon her truthful allegation that the succession was insolvent and that the property was specially mortgaged for an amount many times more than its value, and where such property has been adjudicated to partiesholdingpromissorynotes evidencing the entire purchase price of the property sold, who credit the succession with the amount of the bid, such sale will successfully resist an attack made upon it by the children of the deceased, claiihing under him as his heirs based simply on the ground that their mother was appointed tutrix and had received letters as such in violation of Art. 321 of tl.e Civil Code.

      Where the probate court has granted an order for the sale of “ all the property of a succession,” a commission to sell, directed to the sheriff, which follows the wording of the order, is not null because it fails to give specific descriptions of the properties to be sold under the order in the body of the commission The sheriff is authorized to have recourse for descriptions to certified extracts from the inventory of the succession on file in the court.
    A sale is not attackable because the sheriff, in his proves verbal of a particular sale, annexes thereto a certified extract' of the inventory containing the description of a particular piece of property and a printed copy of the advertisement under which the sale was made, and after detailing the various steps in the execution of the commission of sale in his hands, refers to the annexed extracts from the inventory and the printed advertisement as being descriptive of the property sold and adjudicated.
    A PPEAL from the Sixteenth Judicial District Court for the Parish of St. Tammany. Reid, J

      Olay Elliott for Plaintiffs, Appellants.

      Saunders & Miller (Walter H. Saunders of Counsel) for Defendants, Appellees.
    Argued and submitted December 28, 1897.
    Opinion handed down January 24, 1898.
    Defendant Laroussini is in possession as owner of certain property in the town of Covington which he acquired by purchase from the succession of Adam Thompson; Thompson himself having purchased the same at a succession sale made in the matter of the succession of George Ingram, on the prayer of the wife of said Ingram claiming to be the natural tutrix of the minor children issue of her marriage with said Ingram.
    Plaintiffs as heirs of their father and mother bring this action against Laroussini and the succession of Adam Thompson, praying to be declared the owners of said property and put in possession thereof; to recover from the succession of Thompson the sum of twenty-eight hundred dollars, and from Laroussini, eight hundred dollars, for fruits and revenues of the property during the period of their respective possessions. Plaintiffs couple with their petitory action an attack upon the judicial sale by which Thompson claims to have acquired ownership, and upon that of Laroussini from Thompson. They declare that the former sale was absolutely null and void to the knowledge both of Thompson and Laroussini, and that they were both possessors of the property in bad faith. The attack on the judicial sale on the Ingram succession is made on the ground that their mother was never appointed, nor confirmed as their natural tutrix, nor was she authorized to stand in judgment for them or the succession of George Ingram, and on the further ground that even upon the hypothesis that she was their tutrix the formalities of law required for the divestiture of their title had not been observed, and they are the owners of the property as if the proceedings on which defendants rely had.never been taken.
    They allege:
    1. That no certificate of the amount of the minor’s mortgage was recorded in the mortgage book of the parish; that no decree of the court had ever been rendered appointing or confirming their mother as their tutrix, nor authorizing letters of tutorship to issue to her. That she had no authority to petition the court for a sale of their property on the proceedings mentioned.
    2. That she was incapable of being their tutrix and acting as such, as she never took the oath required by law.
    3-. That the parish judge had no power to order the sale mentioned without the advice of a family meeting upon a petition presented by a turix appointed, and qualified as the law required; that no such petition was presented and no advice of a family meeting was asked or obtained.
    4. That the commission under which the sheriff acted in making the sale'did not describe any real estate, and said property was not described in his return.
    Laroussini called the succession of Thompson in warranty through a curator ad hoc. Both defendants pleaded the general issue, maintained the validity of the sale in the succession of Thompson, and that from the succession of Thompson to Laroussini, and their possession as being in good faith. They detailed minutely the circumstances under which the succession sale was made; the condition of Ingram’s succession, the steps taken in the matter of the appointment of plaintiff’s mother as their tutrix, and the various formalities which were observed in the matter of the settlement of the succession. They averred that the property in controversy was, at the time of the succession sale, in a dilapidated condition, and that both Thompson and Laroussini had, while holding and possessing the same as owners, placed valuable and expensive improvements thereon, which had greatly enhanced its value; that they had also paid a large amount of taxes upon the property.
    The right and interest of the plaintiffs to attack the sale was denied, as it was averred that the succession of Ingram at the time of his death was utterly insolvent, and the property in question was for many times its value encumbered with special mortgages, among which was a special mortgage for a large amount which was owned by Adam Thompson at the time of the sale mentioned. The right of the plaintiffs to institute the proceeding was also denied, as no offer or tender had been made to return to the parties the amount of moneys which had been used in the payment of the debts of their father and mother, and which had enured to their benefit, or to reinstate the succession of Thompson in its position as mortgage creditor. It was averred that plaintiffs’ rights were merely residuary, and they could take nothing from the succession until after its debts had been paid. Both defendants urged and claimed that should the succession sale made in the succession of Ingram be set aside that the mortgage claim held by Adam Thompson against the property and against the succession of George Ingram, and the community between him and his wife, shouldrevive and be reinstated with interest on the claim and the right to attorney’s fees in case of suit.
    Defendant Laroussini claimed to be entitled, under his purchase from the succession of Thompson, to be subrogated to all claims which the latter held against the succession of Ingram. He also claimed that the mother of the plaintiffs, after the sale of the property to Adam Thompson, made a formal deed of transfer of the property to the purchaser, and that being a widow in community, entitled to one-half of the community property, the effect of said act was under any and all contingencies to transfer her one-half of the said property to Thompson, and that both she and her heirs were and are estopped from questioning his title to that extent. He prayed that plaintiff’s demand be wholly rejected, but should the court rescind the sale, that under no circumstances it be not rescinded for more than one undivided half thereof. That should it be rescinded in whole or in-part there be judgment reviving and declaring exigible the claim which Adam Thompson held against the succession of Ingram and the community of acquets and gains between himself and wife for fifteen hundred dollars, with eight per cent, per annum interest thereon, from March 6, 1875, till paid, five per cent, on the aggregate amount of said principal and interest as attorney’s fees and all costs of suit, and that same be decreed to be secured by special mortgage and vendor’s privilege on the property sued for; that the same be sold to pay said sums and the proceeds of said sale be applied to pay said sums by preference and priority over all debts due by said George Ingram or by his succession or heirs; that there be judgment in favor of the succession of Adam Thompson for the sum of two thousand dollars expended by him in repairs, improvements and taxes on said property, and that he be subrogated to said claim and judgment in favor of said Adam Thompson against George Ingram, his succession and heirs. That should he be evicted from the property or any part thereof, there be judgment in his favor and against the succession of Thompson, his widow and heirs for the sum of twenty-seven hundred and fifty dollars, the price paid by him to the succession of Thompson for said property, and for one hundred and fifty dollars attorney’s fees, and the further sum of two thousand dollars expended by him on said property for improvements and taxes.
    The curator ad hoc prayed for the rejection of plaintiff’s demand and contingently (as did Laroussini) for the reinstatement, revival and enforcement of the mortgage and mortgage claim of Adam Thompson against the succession of George Ingram and his heirs, and against the said property. .He prayed judgment contingently against the said succession and heirs for the sum of two thousand dollars, amount expended by Adam Thompson in necessary repairs and useful improvements and taxes upon the property, and that defendant, Laroussini, be subrogated to all said claims so far as was necessary to protect him. That the demand in warranty of Laroussini against the succession of Adam Thompson, his widow and heirs, except as to said subrogation, be rejected.
    The District Court rendered judgment in favor of defendant, Laroussini, and against the plaintiffs, rejecting the demand of the latter and rejecting the demands of Laroussini against the heirs of Adam Thompson as warrantors.
    Plaintiffs appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We find in the record the following admissions of the parties:

Civil District Court, Parish of Orleans.

Gborgb Ingram vs. H. Laroussini bt al.

In order to save expense the facts in this case are admitted as follows :

1. It is admitted by the defendant in this case that no certificate of the minor’s mortgage as shown by the inventory in the succession of George Ingram was ever recorded in the mortgage books of St. Tammany parish, where the succession of George Ingram was opened, or elsewhere.

Defendant admits that the plaintiffs in this suit are the only heirs . of George Ingram and Catherine A. Ingram, his wife, both of whom died at the dates stated in the petition herein; and the defendants further admit that the property herein 'sued for is worth three thousand dollars. The plaintiffs herein file a complete transcript of all the papers in the record of the proceedings in the succession of George Ingram and Catherine A. Ingram, his wife, as now found in the clerk’s office of St. Tammany parish, Louisiana, and the defendant admits that the transcript filed is a full and complete transcript of all the papers now in said record.

It is admitted that the rental value of the property herein sued for has been on an average not less than one hundred and fifty dollars per year since the sale to Adam Thompson, on April 4, 1877.

For the Defendant.

It is admitted by the plaintiffs that George Ingram bought the property sued for on March 6, 1875, for the price of fifteen hundred dollars. That said purchase was entirely on credit, and that George Ingram gave to represent the said price of one thousand five hundred dollars, his two notes of seven hundred and fifty dollars, each bearing eight per cent, per annum interest from date until paid. That said act was recorded in the mortgage and conveyance book of the clerk’s office of St. Tammany parish, as stated in the supplemental petition herein, and as shown in the copy of the act of sale which is filed in evidence.

2. It is admitted that as stated in the supplemental answer herein on June 19, 1876, Andrew Patton who was then clerk and representative of Adam Thompson, instituted executory proceedings on the above mentioned note for seven hundred and fifty dollars, maturing March 6, 1876, for the purpose of seizing and selling the property herein sued for, said proceedings being entitled Andrew Pattoil vs. The Succession of George Ingram, No. 1293 of the docket of the Sixth Judicial District Court for St. Tammany parish.

That an order of seizure and sale was signed in said proceedings, but that nothing ever was c one thereon.'

3. Parties hereto admit that the copy of the act of sale of date April 4, 1877, by Mrs. Catherine A. Ingram to Adam Thompson is a true and correct copy of said act and that the said act was registered in the conveyance records of St. Tammany parish, as stated in the supplemental answer herein.

'4. It is admitted by counsel for plaintiffs that the succession of George Ingram was insolvent to a considerable extent.

5. It is admitted that Judge James Thompson, who was the attorney of the succession of George Ingram, would testify that the debts stated in the certificate of mortgages of date April 3, 1877 (found in the transcript of the record of the succession of George Ingram) , were due as stated in the supplemental answer herein, and that no creditor of said succession ever objected to the administration of the said succession by Mrs. Catherine A. iDgram as tutrix.

6. It is admitted that H. Laroussini, the defendant herein, purchased the property herein sued for from the succession of Adam Thompson for two thousand seven hundred and fifty dollars, and on the terms stated in the supplemental answer herein.

7. It is admitted that the average taxes on the property sued for from 1877 to date have been twenty dollars and fifty cents per year, and that said taxes have been paid by said Adam Thompson and the said H. Laroussini.

8. It is admitted that the necessary lessor’s repairs to preserve the property herein sued for, and to keep it in tenantable repair from 1877 to date, amount to at least six hundred dollars, and were expended by the said Adam Thompson and H. Laroussini.

9. It is admitted that the enhanced value of the property resulting from the additions and improvements placed thereon by Laroussini is at least three hundred dollars.

We agree to submit case on above statement of facts and the copies referred to in the pleadings on January 26, 1897.

(Signed) Saunders & Midler, Attorneys for Defendant.

Clay Elliott, Attorney for Plaintiff.

George E. Williams, Curator ad hoe.-

On the 9th of December, 1875, the mother of the plaintiffs applied to the parish court of St. Tammany parish, praying that she be qualified as their natural tutrix. At the foot of her petition to that effect the parish judge wrote an order, of which the following extract covers all that is necessary to be copied for the purposes of this case:

“ Let the prayer of the petitioner be granted, and let her be duly qualified as natural tutrix of the within-named minors, George and Margaret Ingram.”

Appellant contends that this order is fatally defective as an order of appointment. It would have doubtless been better had the parish judge in direct terms declared that he then and there by his order appointed the petitioner (naming her) as natural tutrix of the minors mentioned, but the order is in the form ordinarily used in probate proceedings for the appointment of tutors, for the taking of inventories, for the holding of family meetings, and other similar acts. “ Let an inventory be taken,” “ Let a family meeting be held as prayed for,” is the usual language employed in acting upon applications of that character. Even in executory proceedings asking for a writ of seizure and sale to issue, it is customary for the order to read: “ Let a writ of seizure and sale issue,” instead Of reading: “It is hereby ordered that a writ of seizure and sale issue.”

We see no force in the objection raised. On the 10th of December the mother took an oath before the District Court in which she declared that “ she solemnly swore that she would well a.nd faithfully perform all the duties of natural tutrix of the minors George and Margaret Ingram, minor children of George Ingram, deceased, to the best of her (my) ability. So help her (me) God.”

On the same day the District Clerk issued to her letters of tutorship in which it was declared that she had been appointed and qualified as natural tutrix; that she had complied with and fulfilled all the requirements of the law, and that all her acts as such were entitied to full faith and credit. An inventory of the succession was made, but it was not recorded. In this inventory figured, fully described, the property which forms the object of the present controversy. On the 23d of February, 1877, the widow as tutrix of £he minors filed a petition in which after alleging that the estate of her husband was very much in debt, that the assets were not sufficient to pay the same; that there were mortgages to an amount exceeding seven thousand dollars existing against the real estate, being many times more than the value thereof, and that the movables would not suffice to pay the privileges thereof, prayed for and obtained an order for the sale of all the property, real and personal, for cash. It is admitted that the recitals of the tutrix’ petition were true. It appears that at that time the property in question was affected by a special mortgage and vendor’s privilege securing the payment of two promissory notes representing the purchase price which the deceased had agreed to pay for the same; that Adam-Thompson, through his clerk, had applied for and obtained an order for the seizure and sale of the property to satisfy his claim, he being the holder of either one or both of said notes.

This order was not followed up, but the widow and tutrix came forward and applied for and obtained the order referred to for a sale of all the property of the succession.

By so doing she waived the necessity of the various services upon her which the law would have called for under the executory proceedings had they been continued and carried on to completion. The sale took place under the probate order with this order of seizure and sale still standing unrevoked though not yet executed. Possibly Adam Thompson might have had legal ground of complaint of a sale of the property made through such an order, but we see no legal ground of complaint which these minors could urge on that account. Can it be said that the minors could receive, or did receive, any injury from the mere fact that the tutrix, instead of permitting the sale to be consummated as prayed for, with herself proceeded against as defendant in executory proceedings, should have herself, as tutrix, taken up the,proceedings about to be carried into effect and caused them to be executed under probate, instead of ordinary jurisdiction. The same result would have been reached by either proceeding. The sale woifld have been made for cash, by the sheriff, under either order, and we fail to see how the minors could have sustained any damage in the premises.

There can be no question that if plaintiffs’ mother was not their tutrix at that time (as they claim she was not), that Adam Thompson could have legally proceeded against a tutor ad hoe, who would not have been compelled to give bond, and that their title or interest (if any such they can be said to have really had) would have been legally divested without reference to the fact whether plaintiffs’ rights were secured by mortgage or not, and without reference to the advice of any family meeting.

The relations of the minors to the property were, under the circumstances of this case, really nominal. They were heirs of their father, it is true, by effect of law, but they were beneficiary heirs, and their father’s succession was insolvent. Their tutrix would not have been entitled, simply as such, to have administered the succession, without security, if the creditors had objected. Her administration, as tutrix, without opposition, did not increase the rights of these minor beneficiary heirs in this property beyond what they would have been had their mother been forced to apply for and had obtained an appointment as an ordinary administrator of the succession. Her administration was in the interest of the creditors, as matters stood, rather than in the interest of the minors. The minors would have been entitled had their mother been forced by the creditors (by reason of their being beneficiary heirs), to qualify as a regular administratrix, to receive only the balance which would have remained in the succession after payment of all debts. O. 0. 1058. Time has not extended their rights so as to authorize them, without incurring any obligations whatever, to take away from their father’s creditors that which they were justly and legally entitled to have applied to the payment of their claims. Plaintiffs’ demands are utterly without equity. At the sale which they seek to have declared null, the holder of the vendor’s privilege notes (representing substantially the rights of the vendor himself), by purchasing the property, simply regained the ownership of the property on which not one dollar had been paid, nor has been paid up to the present day, if the sale passed no title to the adjudicatee. Plaintiffs’ proposition is that they can wrench this property out of the ownership and possession of the purchaser through the law, without the payment of a cent for it. The law works out no such result through force of a provision in a statute which was intended to protect the actual interests of minors, and not to enable them to enrich themselves at the expense of their father’s creditors. When a case is presented to us in which minors have been really aggrieved by the failure of the court officers or of their father or mother to have recorded the abstract of inventory, by the recording of which they would have acquired a mortgage on their tutor’s property to secure the faithful performance by them of their duties, it will be time enough to pass upon the effect of an appointment of tutrix and of issuing of letters of tutorship to a tutrix without the recording prior thereto of the abstract of inventory which the law directs should be placed of record.

The order "of the parish court directed the sale of all of the property of the succession, real and personal. This property belonged to- • the succession and its sale was covered by the terms of the order.

Plaintiffs complain that the prooes verbal of the sale of the property does not contain a description of the same. It is true that it does not do so directly in the body of the prooes verbal, but the sheriff annexed thereto a certified extract from the inventory of the succession and also a copy of the advertisement under which the sale was-made, and having declared that he had done so, declared that he had advertised for sale according to law the property described in the annexed extract from invantory, and after reading-the advertisement, had offered said property for sale; that after receiving various offers he had adjudicated said real estate described in said inventory to Adam Thompson for the sum of seventeen hundred dollars, being the owner of the first mortgage and vendor’s privilege, amounting with interest to the sum of seventeen hundred and forty dollars, the said purchaser retaining the same in his hands, less the sum of forty-two dollars, cost of selling the said property.

In addition to this the tutrix and the purchaser appeared, on the 4th of April, 1877, before a notary public, and the former made a formal and complete deed of the property to the purchaser, fully and minutely describing'it as it had been described in the advertisement and inventory under full recitals as to the facts and circumstances under which she made the deed. The purchaser and the defendant have been in possession of the property under the adjudication and deed ever since that date.

It would have been much better for the sheriff to have given a complete description of the property in the body of the proees verbal than to have described it by reference to annexed documents which might have become detached and rendered identification difficult, but they were not in this instance detached, and there can be no question as to what property was ordered to be sold, what was advertised to be sold, and what, in point of fact, was sold to Adam Thompson. We think the objection raised to defendant’s title on these grounds is without foundation. O. P. 690, 695. We think the District Court has dealt with the ease according to law and the evidence and according also to equity.

The judgment appealed from is affirmed. .


text:
    No. 12,461.
    Romero & Bayard vs. H. & C. Newman.
    A factor holding as collateral security for the payment of the ultimate balance to be due him on his factor’s account the negotiable note of his customer, bearing interest after maturity, and secured by mortgage on his plantation, must be prepared to surrender the collateral when the account is closed, and payment of the amount due is tendered him by the debtor.
    If such collateral note has been transferred by the creditor before its maturity to a third person, and by reason of such fact the factor can not surrender it, he will be responsible to the maker of the note for any amount over and above that due on the account (payment of which has been so tendered) which he was forced to pay to the third holder of the note.
    Where su^h a collateral note had been given to a factor to secure a specific debt, the latter can not refuse to surrender the same when the debtor tenders payment of the debt which it secures, by reason of alleged indebtedness of the customer upon unliquidated and disputed claims arising from other separate and distinct contracts.
    A creditor who in bad faith retards or prevents the execution of a contract to do can not cla'm from the debtor damages for the non-execution of the contract. 0. C. 1934, par. 4.
    Where the execution of a contract has been rendered impossible in its entirety by reason of a fortuitous event not preceded by some fault of the debtor, the creditor can not exact damages for non-execution. O. 0.1933.
    If the contract to do, consists of successive obligations to be performed at different times, the non-execution by the debtor of one of these successive obligations by reason of a fortuitous event not preceded by somefaultof the debtor, withdraws from the creditor the right to exact damages for the non-execution of that particular obligation. 0. C. 1898.
    A contract between a factor and a planter by which the latter binds himself to ship his crop to the factor, who is authorized to charge two and a half per cent, commission on-sales of the same, does not justify the factor in charging two and a half per cent, commission on the amount of the bounty paid by the government to the planter in the crop. The bounty does not represent sales made by the factor.

      In a contract between a planter an,d the owner of a refinery, the planter engaged to grind for a number of years the cane upon his plantation, at his own sugar house, to there convert it into syrup and then to convey it to the refinery through pipes purchased and laid down at its own expense by the refinery, the refinery engaging to convert the syrup into sugar at a fixed price per pound. During the second year of the contract a fire destroyed the planter’s sugar house, placing it out of his power to comply further with his obligations. The contract contained a clause, that the planter should, at the end of the contract, purchase the pipes at their value. Held, that the refinery owners in thus assuming the deterioration of the pipes during the contract did so in view of continuing benefits to itself to result from it, and being deprived of those benefits by the fire, the court would give the refinery the benefit of the highest estimate placed upon the value of the pipes sustainable under the evidence.
    A PPEAL from tbe Civil District Court for tbe Parish of Orleans. ^ Ellis, J.

      Fenner, Henderson & Fenner, Foster & Broussard and Joseph F. Boché for Plaintiffs, Apellees.

      Clegg & Quintero for Defendants, Appellants.
    Argued and submitted December 4, 1897.
    Opinion handed down January 10, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

Tbe plaintiffs are the owners of tbe Daisy plantation in the parish of Iberia, which they have been cultivating as a sugar plantation.

The defendants are factors and commission merchants in the city of New Orleans. They are also owners of the Linden plantation in Iberia parish, upon which they operate a sugar refinery.

On the 81st of August, 1890, a contract was entered into between the plaintiffs and defendants by which the latter agreed to lay a two-inch pipe from the Linden refinery to the sugar house of the plaintiffs and to furnish a pump to pump the syrup made by the latter from their sugar house to the Linden refinery, at the expense of the defendants, and to refine and granulate said syrup at the rate of one ■cent per pound, and to furnish sugar and molasses barrels in good order at defendants’ refinery. Plaintiffs agreed to boil the juice down and to furnish same as well clarified and in as good a condition as possible. It was well understood that defendants were free from all liability from loss occasioned by «.ora-working of machinery, breaking, bursting of pipes or any or whatever loss in the premises before received in their refinery, or from any loss .from frozen cane or sour syrup.

It was further understood that the contract should cover a period of five years, to-wit: 1890, 1891, 1892, 1893, 1894, and at the expiration of the contract plaintiffs should become the purchasers of the pipe and pump so laid-down at the price to be agreed on between the parties, or, if necessary, by arbitration of outside parties.

Separate and apart from this contract there existed between the plaintiffs and defendants, the relation of planters and factors. Defendants agreed to furnish the necessary advances in money and supplies for the cultivation of plaintiffs’ plantation, and they to secure, defendants the reimbursement of their advances delivered to the latter first in 1891, a note for five thousand dollars, secured by mortgage on their plantation, and afterward, on the 24th of February, 1892, a note of that date, for six thousand dollars, payable on the 1st of April, 1893, to the order of H. & 0. Newman, at their office in New Orleans, with eight per cent, interest from date, secured by a new mortgage on the same property. The- last mortgage was to secure a-small balance due on the advances of 1891, as well as those to be made in the future in 1892.

The contract first mentioned continued in force until some time in 1892, when by the destruction of plaintiffs’ sugar house by fire they became unable to carry out their obligation to deliver to tbe defendants syrups made at tbe same.

During the years 1891 and 1892 differences arose between the parties; plaintiffs claiming compensation for a quantity, of syrup which they asserted had been caused to be lost through the negligence of the defendants and their employee?, and defendants contending that they were authorized to demand from the plaintiffs the profits which they would have made under the contract had it been carried to completion, and also the price of the pump and pipes.

After numerous negotiations the parties finally agreed to submit their differences to arbitrators. , An arbitration was attempted, bu it failed in its purpose, and as neither side claims rights under it, no further reference to it need be made.

On the 21st of March, 1893, defendants forwarded to plaintiffs a statement of their advance account as being three thousand four hundred and seventy-seven dollars and forty-eight cents, of which two hundred and fifty-four dollars and seventy cents were charged to plaintiffs as commissions of two and one-half per cent, on the bounty which .the latter had collected from the United States government.

Plaintiffs had bo.und themselves in the factorage contract to ship . their crops to defendants for sale for their account, and the latter insisted that they were entitled to deal with the bounty money as if su^,r to the value thereof had been consigned to them for sale and had been sold by them for plaintiffs on the usual commission on sales.

On the 16th of March Messrs. Foster & Broussard, attorneys of the plaintiffs, wrote a letter to the defendant on behalf of their clients, in reference to said account, in which they stated that the latter were willing and ready to settle their indebtedness to them, but that they would not pay the charges for bounty, which cn the account amounted to two hundred and fifty-four dollars and seventy cents. .That, in other words, if they would return their two notes (the five thousand dollar and the six thousand dollar notes) to the New Iberia National Bank and their account corrected, that is showing balance due three thousand two hundred and twenty-two dollars and seventy-eight cents, with instructions to the bank upon payment of this last amount they must turn over the notes to the plaintiffs and give full receipt to them, the three thousand two hundred and twenty-two dollars and seventy-eight cents would be paid at once. That this, however, was not to be construed as a waiver of any further reduction which plaintiffs might have as to interest and other overcharges in case of litigation, which they specially reserved. *

Shortly after receipt of this letter defendants sent 0. H. C. Brown to New Iberia to represent them in this matter in an interview with the parties and their attorneys at that place. A meeting took place between them in the latter part of March, at which the account was fully discussed and an offer was again made on behalf of the plaintiffs to pay the account that day if defendants, through Brown, would deduct the charge for commissions on the bounty money, but this offer was declined. In the course of the conversation which then took place Brown referred to the fact that defendants claimed that plaintiffs were indebted to them for profits on the “ refinery account,” and for the price of the pump and, pipes which they had laid down, but plaintiffs refused to discuss those claims, as they bore upon distinct and separate matters. Brown intimated to plaintiffs that the promissory note for six thousand dollars was not yet due; that defendants could transfer the same before maturity and force any litigation which might arise between plaintiffs and defendants to be prosecuted in New Orleans.

A few days after this, Romero, one of the plaintiffs, and R. F. Broussard, one of their attorneys, called at the office o% H. & 0. Newman, in New Orleans, and there matters were again discussed, and the agreement to submit their respective claims to arbitration, to which reference has already been alluded, was reached. No allusion was made at that time to the fact that the note of six thousand dollars had been transferred to E. Feibelman & Co.

In--, 1893, the latter firm instituted executory proceedings in Iberia parish upon that note, claiming to be the owners of the same, before maturity, in due course of trade and for a valuable consideration, and demanding payment of the note with interest, attorney’s fees and costs. The present plaintiffs obtained an order for a suspensive appeal from the order of seizure and sale, but the appeal was dismissed in consequence of the appeal bond having been made for too small an amount'. In order to stop proceedings, plaintiffs were forced to pay Feibelman & Oo., on the 24th of February, 1894, the note with interest, and also attorney’s fees and costs. The whole amount so paid by them amounted to the sum of seven thousand four hundred and eleven dollars and twenty cents.

On the 1st of August, 1894, the present action was instituted by plaintiffs against the defendants in the city of New Orleans, in which judgment is prayed against defendants for seventeen thousand four hundred and seventy-five dollars, with legal interest from judicial demand.

The amount is made up, first, of a claim that defendants are indebted to plaintiffs in the sum of twenty-eight hundred dollars for a quantity of syrup lost to them by the negligence of defendants under the “Refinery Contract” in 1891 and 1892; second, of a sum of four thousand one hundred and eighty-eight dollars and ninety-two cents, as being the difference between the amount actually due on the 21st of March, 1893, by plaintiffs to defendants upon their account secured by their collateral note of six thousand dollars and seven thousand four hundred and eleven dollars, the amount which they were forced to pay Feibelman & Oo. to obtain the release of their property from seizure; third, of the sum of four hundred and eighty-seven dollars and sixty-seven cents, proceeds of sugar and molasses sold by them since the 21st of March, 1893, at which date defendants’ account was presented to them; and fourth, of the sum of ten thousand dollars claimed of defendants as damages for defendants’ illegal and malicious conduct in transferring their note of six thousand dollars to Feibelman & Co., and occasioning through the latter firm the seizure of their property.

They alleged that they were, on the 21st of March, willing and ready, and offered to defendants to pay them in full for the balance which they owed them after deduction of the commission erroneously and illegally charged to them on the bounty money, and to take up their note of six thousand dollars, then held by them and to fall due on the 1st of April, but that defendants peremptorily refused the proffered settlement and transferred said note to Feibelman & Co. That defendants knew with certainty that at the time of the transfer their indebtedness to them did not exceed the balance shown by the statement furnished by them to petitioners, which showed a balance against them of only thirty-four hundred and seventy-seven dollars and forty-eight cents, and that they verily believed and therefore alleged that said transfer of said promissory note was made with the malicious intent to cause damage and injury to them.

They further alleged that defendants had admitted their obligation to account to them for the difference between the amount realized by them on the note of six thousand dollars and the amount due them by petitioners, but that they had declined, neglected and refused to pay the same, notwithstanding amicable demand for the payment thereof. Defendants pleaded the general issue. They averred that the, amount claimed of them by' plaintiffs. for the loss of syrup in 1891 and 1892 had been fully paid in the settlements made between the parties of the refinery account. They denied that in negotiating the promissory note of six thousand dollars they acted beyond their legal rights or in an illegal manner, and that they were actuated by motives of ill will or malice toward plaintiffs or by any desire to injure them in their legal rights; they denied that plaintiffs suffered therefrom any loss or damage which they could not have averted by the exercise of legal means and slight expense and by ordinary efforts. They denied that the property of plaintiffs was seized as a consequence of the negotiation'of said note; that they were deprived of the possession and control of their property as stated in their petition, and that plaintiff suffered any loss or damage thereby in the premises which was not due to their own resistance of the payment of their legal indebtedness, or that they suffered any loss or damage thereby which they are entitled to recover against them.

Assuming the position of plaintiffs in reconvention, defendants alleged that Romero & Bayard were indebted to them in the sum of seventeen hundred and eight dollars and sixty-six cents, and in the further sum of twenty-seven hundred and seventeen dollars and forty-one cents, with legal interest from judicial demand, for which amounts they prayed for judgment.

The first amount was claimed as being due to them as the profits which they would have realized from the refinery contract had it been carried to completion according to its terms, and the second amount as being due them as the price of and value of the pump they had furnished to plaintiffs, and of the pipes which they had laid between the Daisy and Linden plantations.

With reference to the first of these claims, defendants alleged that during the years 1898 and 1894, plaintiffs wholly failed to furnish any syrup to the refinery of respondents for refining; that the profits to which they would have been entitled for the refining of the syrup for plaintiffs during said years would have amounted in the aggregate to the snm claimed; that the failure of the plaintiffs to furnish said syrup was in violation and breach of their contract, and defendants were entitled to recover said profits from the plaintiffs.

The District Court rendered judgment in favor of the plaintiffs for the sum of thirty-nine hundred and ninety-six dollars, and seventy-four dollars, with legal intérest from judicial demand.

It appears from the reasons assigned for the judgment that this amount was reached by adjudging that defendants were indebted to the plaintiffs in the sum of four thdusand six hundred and seventy-six dollars and nine cents, and that plaintiffs are indebted to the the defendants in' the sum of six hundred and seventy-nine dollars and thirty-five cents — the amount for which judgment was rendered, being the difference between these two sums;

The four thousand six hundred and seventy-six dollars and nine cents so adjudged to plaintiffs is the difference between the amounts actually due by the plaintiffs to defendants on the 21st of March, 1893, as per their account furnished that day (striking from said account the amount claimed for commissions on bounty money collected by the plaintiffs), and the amount paid by plaintiffs to Feibel-' man & Oo. to obtain the release of théir property from seizure, to which was added the sum of four hundred and eighty-seven dollars and sixty-seven cents, proceeds of sugar and molasses sold by defendants for account of plaintiffs after the 21st of March, 1893.

The six hundred and seventy-nine dollars and thirty-five cents adjudged to defendants is the amount fixed by the District Court as the value of the pipes laid by defendants between the Daisy and Linden plantations.

The court obviously disallowed on the one hand plaintiffs’ demand for the loss of syrup in the years 1891 and 1892, and their claim for ten thousand dollars damages, and on the other defendants’ demand for profits which they claimed would have been realized on the refinery contract for the years 1893 and 1894, had plaintiffs furnished them with syrup during those years under the terms of that contract^ and also rejected the price claimed fot the pump furnished to plaintiffs. Defendants appealed.

Plaintiffs in the Supreme Court prayed that the judgment should be amended in their favor by allowing them the ten thousand dollars which they claimed for damages, and by rejecting entirely defendants’ reconventional demand, or sustaining it at the very utmost to the amount of two hundred and twenty-six dollars and fifty cents.

We are of the opinion that the judgment of the District Court negativing and rejecting plaintiffs’ demand for ten thousand dollars damages and their claim for loss of syrup in the years 1891 and 1892 is correct; that it is also correct in disallowing defendants’ claim for the value of the pump which they furnished to the plaintiffs. The claim for the loss of the syrup was adjusted and settled prior to the institution of this action in the settlement between the parties of the refinery account. There is no evidence before us which would justify a judgment in favor of plaintiffs for damages, as is claimed by them for loss of credit, annoyance, etc.

The evidence in the record shows that the pump referred to was rendered valueless by the fire which consumed plaintiffs’ sugar house.

Having disposed of so much of the contentions between the parties, we now direct our attention to the other demands advanced by the plaintiffs. Defendants claim that the six thousand dollars note referred to in the pleadings and in the evidence was their absolute property; that they had the legal right to dispose of it; that having done so they are not responsible for the interest which accrued upon the same after plaintiffs offered to pay their indebtedness to them, nor for the costs of the executory proceedings which were taken out by Eeibelman & Co. upon the note, nor for the fees of attorneys provided for by the act of mortgage securing the note. Defendants say that the mortgage securing the note was not negotiable, as was the note itself, and that if plaintiffs had defences to Feibelman’s demand, they could and should have urged and made them available in those proceedings. The note was not the absolute property of the defendants; it was simply placed in their hands as collateral to. secure the balance to be due upon the factorage account. By placing a negotiable instrument in the hands of the defendants they undoubtedly placed it in the power of the latter to transfer it free from the equities in favor of parties acquiring it before maturity in due course of trade for a valuable consideration. But the power, to do this is -a very different thing from the right to do it, as between the present plaintiffs and defendants. Granting that defendants could have legally pledged to third parties the negotiable note pledged to themselves by the plaintiffs, they took upon themselves the obligation of being prepared to surrender and of surrendering the same to defendants whenever the latter should offer to pay the principal debt which it secured.

Had the note in question been in defendants’ hands, as it should have been when plaintiffs offered, as they did, to pay their account in full, and had they refused as they did refuse to Surrender the same on the ground that plaintiffs were indebted to them for commissions upon the bounty money which they had collected from the United States government, litigation which defendants would have provoked under such circumstances on the note would have resulted in the plaintiffs béing forced to pay their own attorney’s fees and costs, and to have had rejected any claims for the interest which had accrued on the debt after defendants’ offer to pay, unless they could have maintained the correctness of their claim to commissions. And ct fortiori would this have been the result had the refusal to surrender the note been based upon the pretension of a right of detention of the same until disputed, unliquidated claims upon separate and-distinct contracts should be adjudicated upon by the courts.

Defendants can not either in law or in justice alter this legal result and impose increased obligations upon the makers of the note by transferring it to third parties and causing litigation to be carried on in their name so as to cut off an inquiry into legally existing defences and equities. “ Nul prendra de son tort.”

True it is, that Feibelman & Co. as against the present plaintiffs and themselves might recover the note with interest, costs and attorney’s fees, but this.increased amount of liability by Romero and Bayard would be the direct consequence of the active violation by H. & C. Newman of their legal duty to surrender the note on an offer by the makers to pay, and they are bound to save plaintiffs harmless from the effect of their act.

There was no actual tender of money by plaintiffs,' but defendants by their conduct relieved the latter from making it. Teutonia Bank vs. Loeb, 27 An. 110; Alter vs. Shepperd, 27 An. 210; Laloire vs. Wiltz, 29 An. 329; Zimmerman vs. Langles, 86 An. 68. There is no reason to suppose that plaintiffs were not then and there prepared to make payment, or that they would not have then made payment of their debt had defendants been willing and in position to receive it and surrender plaintiffs’ note. They unquestionably determined not to surrender the note or receive payment except upon unauthorized conditions.

We are of the opinion that defendants were not entitled to commission upon the bounty collected by the plaintiffs (Delogny vs. Creditors, 48 An. 488), and, therefore, that that claim furnished no-legal basis upon which to* decline to surrender, the collateral note, and that still less did unliquidated demands upon separate and distinct contracts furnish such a basis.

The item for commissions on bounty having been the only item at, issue between the parties — its rejection left the amount justly due on the account that which the plaintiffs admitted to be due and offered, to pay.

It is not denied that since the date of that account defendants have received and sold sugar and molasses for account of plaintiffs. to an amount of two hundred and eighty-seven dollars and sixty - seven cents, and that that sum stood to their credit on their books.

The amount,' therefore, which the District Court found to be due for plaintiffs’ demand in their favor and against the defendants (four-thousand six hundred and seventy-six dollars and nine cents) was justified by the law and the evidence, and the finding to that effect is affirmed.

We have now to examine the claim of defendants for profits upon the refinery contract for the years 1893 and 1891, and for the price of the pipes laid by them between the Daisy and Linden sugar houses.

The sugar house on the Daisy plantation was destroyed by fire in 1892, and so far as this record shows has never been rebuilt.

It is not claimed that the burning of the building was the result of negligence either of plaintiffs or their employees.

The District Court held that under the provisions of the second section of Art. 1933 of the Civil Code, which declares that “ where by a fortuitous event or irresistible force the debtor is hindered from giving or doing what he has contracted to give or do, or is from some cause compelled to do what the contract'bound him not to do, no damages can be recovered for the execution of the contract.”

• Had the contract in this case been one covering the crop of one single year, and had the building been (without plaintiffs’ fault) destroyed during the grinding season, it would have been an utter impossibility for the plaintiffs to have complied with their obligations, and plaintiffs would have clearly been entitled to the provisions of the law cited. So also had the object of the obligationa been certain and determinate thing. (C. C. 2219.) The question is complicated in the present instance by the fact that the contract extended over several years, and had reference to several separate and distinct crops, and that the fulfilment of that obligation by 'plaintiff was not absolutely and necessarily rendered impossible by the fire. As a matter of course defendants were without right or power to exact specifically that plaintiffs should rebuild their sugar house. Certainly, in the absence of a .stipulation by the plaintiff that they should rebuild in case of fire, they could not be constrained to do so. We are not called on to deal with that phase of the question, but with the rights and obligations of parties where they have simply failed to do so.

Article 1891 of the Civil'Oode declares that “ the object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfil his engagements, but by the nature of the thing which forms the object of it,” and Art. 1899 that “if the contract consists of several successive obligations to be performed at different times, and the equivalent is not given in advance for the whole, but is either expressly or impliedly promised to be given at future periods, then, if the cause of the contract corresponding to ■either of these obligations should fail, the obligation depending on it will cease also. Thus we learn for years the obligation to pay the yearly rent ceases if the property which is leased shall be destroyed.”

Laurent (Vol. 16, Des Obligations, Sec. 250 ei seq.) refers to the •distinction between cases where by force of fortuitous events the fulfilment by the debtor of his obligations is placed absolutely beyond his power, putting an end to the contract, and those where the execution of the same is merely retarded, delayed or made more onerous and difficult, also those where the difficulty in the way of execution is simply relative to the debtor.

He also incidentally refers to certain cases where obligations are to be successively executed (Sec. 270) .

The view we take of the situation of the parties to this litigation dispenses us from expressing any opinion as to what their respective rights and obligations would be under ordinary circumstances. We have declined to render judgment in favor of plaintiffs upon their claim for ten thousand dollars damages, but we are of the opinion that the course which defendants pursued of actively and illegally placing obstacles in the way of plaintiffs’ ability to rebuild their sugar house, by tying up their resources and causing their plantation to be placed under seizure, withdraws from them any rightful claim to profits, assuming such a claim could have been otherwise urged. We are of the opinion that the District Court placed too low an estimate upon the value of the pipes laid by the defendants between the two sugar houses. It may be true and doubtless is true that in certain places the pipes may be much deteriorated, but we think that the extent of the deterioration of those portions qf the pipes which were laid in the high lands between the two buildings was by the court overestimated under the evidence. We think that the value of the piping should be fixed at thirteen hundred dollars. We reach this conclusion the more readily as it accords with the equities of the ease. When the defendants entered into the contract by which plaintiffs were to purchase the pipes at the termination of the contract at the value which they might then have, the value to be fixed by estimation, it was evidently in view of the fact that in the interval between the formation of the contract and its ending they would themselves have drawn certain continuing benefits from the use of the pipes. Of this use they have been deprived by a fire for which they were not responsible.

In view of all the facts of this particular case we are of the opinion that the judgment appealed from should be amended to a certain extent. _ '

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court upon the recon - ventional demand set up by the defendants be amended by increasing the amount found due thereon by the District Court from six hundred and seventy-nine dollars and thirty-five cents to thirteen hundred dollars. The effect of this amendment will be to reduce the judgment for which judgment should have been given in the District Court in favor of plaintiffs against defendants from three thousand nine hundred and ninety-six dollars and seventy-four cents to three thousand three hundred and seventy-six dollars and nine cents. For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be amended, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiffs, Romero & Bayard, and against the defendants, H. & C. Newman, for the sum of three thousand three hundred and seventy-six dollars and nine cents, with legal interest from judicial demand until paid. Costs of the lower court to be paid by appellants, those of appeal by appellees.


author: Miller, J.

text:
    No. 12,587.
    State of Louisiana vs. Frank M. Robertson.
    The duty of retreat of one assaulted with intent to take his life or do him bodily harm is not unqualified. There is no obligation of such retreat when, from the suddenness or violence of the attack, retreat would endanger the life of the person assaulted. lArbhbold Criminal Law, p. 791; State vs. Chandler, 5 An. " 490; State vs. Spears, 46 An. 1524.
    A PPBAL from the Fourth Judicial District Court for the Parish of Jackson. Machen, J.

      M. Js Cunningham, Attorney General, and A. B. Hwndley, District Attorney (P. A. Simmons, Jr., of Oounsel), for Plaintiff, Appellee.

      Fred. W. Price for Defendant, Appellant.
    Submitted on briefs December 31, 1897.
    Opinion handed down January 10, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence for manslaughter.

Our decision is controlled irrespective of the other question raised by the exception reserved on behalf of the defendant to the charge of the court. The instruction requested by the counsel for the accused was in substance that one suddenly attacked is not compelled to retreat when imminent danger would follow and is apparent. This was refused, and in signing the bill the court states it did charge that the party assaulted is compelled to retreat until some imminent and immediate danger of life, or some great bodily harm arises, and besides the general law as to self-defence had been given. As the court charges as to the duty of retreat of the person assaulted with the intent to take his life or inflict great bodily harm we must assume the phase of testimony was before the jury to call for a charge of that character. While the charge requested might be deemed deficient in some respects we think the accused was substantially entitled to the instruction asked. The court in its refusal to give that, instruction informs us the law on 'the subject had already been given and incorporates in the bill that portion of his charge he deemed sufficient. The obligation to retreat of one who is assaulted with intent to kill or inflict great bodily injury is not unqualified. In the leading cases of Selfridge, Harrigan and others, three cases of self-defence followed by our courts and recognized as correct in the textbooks, the law is stated in substance thus: When from the nature of the attack there is reasonable ground to believe there is a design to destroy the life of the accused or commit any known felony on his person, the killing of the assailant will be justifiable homicide, and again: “ A man may repel force by force in defence of his person) habitation- or property against one. who manifestly by violence or ■surprise.to commit a felony, such as murder, robbery,” etc. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kills him in so doing it is justifiable homicide. 1 Archbold’s Criminal Law, p. 791 et seq., notes at foot; State vs. Chandler, 5 An. 490; State vs. Spears, 46 An. 1524. The charge given makes the retreat compulsory without that qualification we deem settled that as stated in the Self - ridge case, when the attack on the accused is so sudden, fierce and violent that a retreat would not diminish but increase his danger, the accused may instantly kill his adversary without retreating at all. We think the verdict should be set aside and a new trial granted.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be set aside and reversed, the case is remanded for a new trial and he accused be held in custody to abide that trial.