author: ODOM, J. REYNOLDS, J.

text:
    No. 2078
    Second Circuit Appeal
    OSCAR PICKELS v. L. B. BURNAMAN
    (June 23, 1925, Opinion and Decree.)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 58.
    The burden of proof is on the defendant • to prove an agreement to discontinue the plaintiff’s salary where the plaintiff has alleged and proyen .a prior agreement by- which he was paid a salary for his work.
    2. Louisiana Digest — Evidence—Par. 59.
    The burden of proof is on the plaintiff who alleges that he was to receive in addition to a salary-a bonus,per bale on all cotton produced.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the District Judge as to the non-existence of a .contract, being clearly correct, is affirmed..
    Appeal from the Thirteenth Judicial District, Parish of Rapides. Hon. L. L. Hooe, Judge.
    This is a suit to collect a salary as overseer and an alleged bonus on the number of bales of cotton produced.
    There was judgment in part for plaintiff, and plaintiff appealéd.
    Judgment affirmed.
    Gus A. Voltz’, of Alexandria, attorney for plaintiff, appellee.
    ’Hake'nyos; Huntér - & Scott,', of . Alexandria, attorneys for ' defendant^ appellant.
   ODOM, J.

Plaintiff, sued defendant for $1,290.00, which’ he claims, for two months salary at $75.00 per month, balance due him for the year 1922 as overseer, for $25.00 bonus on twenty-five bales of cotton produced in 1922, and for salary at $75.00 per month for the entire year 1928, and for a bonus on cotton which he alleges will be produced during the year 1923.

He alleges that he worked for defendant" as overseer on his plantation during the whole of the year 1922 at $75.00 per month and that defendant paid him his salary, except for the months of September and December of that year; that he was to receive as a bonus $5.00 per bale for all cotton produced that year and that there were twenty-five bales of cotton produced.

He alleges that during the months of November and December, 1922, defendant discussed with him plans for farming for the year 1923 telling him what he would plant and showed petitioner some timber that he wanted removed from the land in 1923 and that defendant told him'that he wanted petitioner to remain with him as overseer for the year 1923 and that he agreed to do so.

And he further alleges that in the early part of January, 1923, defendant took petitioner into the field and pointed out to him the places where he wanted certain crops planted in that year, and that pursuant to said contract he began to work as overseer on January 1, 1922, and continued to work as such overseer until January 24, 1923, when he was discharged without cause. He now claims salary for the entire year 1923.

In the lower court there was judgment for plaintiff for salary for two months In 1922 and for twenty-three days in 1923. Defendant has appealed. Plaintiff has answered the appeal and asked that the judgment be amended.

OPINION.

Plaintiff went to work as overseer for defendant on January 1, 1922, at a salary of. $75 per month. He was paid for all that year, except the months of September and December, and in the early part of January, 1923, defendant sent him a check for $75 covering his salary for the month of December. It seems that this check carried a notation written on its face that it was in full for all amounts due plaintiff for the year 1922. Plaintiff did not cash the check, for the reason that he was claiming salary for the month of September and also claiming a certain amount due as a bonus on cotton for the year 1922. Plaintiff it seems had the check at the time of the trial of this case.

Defendant admits that he did not pay plaintiff his salary for the month of September, 1922, but he says that plaintiff was sick and did not work and that it was agreed that he should not be paid for that month as the plaintiff was carrying indemnity insurance which he desired to collect.

Plaintiff says that he was sick some in the month of September, sick “off and on about twenty or thirty days. I wasn’t in the bed all the time but was up and down”.

He swore positively that there was no agreement between him and defendant that his salary for September should not be paid.

Defendant testified as follows:

Plaintiff was not sick all the time during September.

“He had been sick for three weeks and would come poking out once in a while and my wife would get after him about it and he said ‘well," I am carrying sick benefits of $90 per month and that’s more than $75; and he said I want to make'the agreement with you all that I will be out and in when I can be, — I will be off the pay roll for this month, so that I can get my sick benefits’.”

As stated, plaintiff admits that he was sick some but denies that he was sick for a month and especially denies that he agreed that he should be dropped' from the pay roll for the month of September.

It does not appear that it was customary for an overseer’s salary to he cut off during a short spell of sickness. In fact it. appears that the custom was that his salary should continue.

The burden was on defendant to prove the agreement to discontinue plaintiff’s salary, and inasmuch as his testimony on that point is not corroborated and plaintiff swears positively that ther.e was no such agreement. We must hold that ’ plaintiff is entitled to his salary for the month of September.

On the question of the bonus on cotton for the year 1922, plaintiff swears that he was to receive $5 per bale on all cotton produced. He is not corroborated on this point. Defendant swears that plaintiff was to receive $5 per bale on all cotton grown in excess of 60 bales and that there were less than 60 bales produced.

The burden was on plaintiff to make out his case on this point by a preponderance of the testimony. He has failed to do so, and his demand was properly rejected by the lower court.

We think plaintiff has failed to make out his case for salary for the year 1923, except for ■ the • first twenty-three days in January.

Plaintiff as a witness in his own hehalf admits that he had no formal, definite contract with defendant to remain' with him for the year 1923, but he says that it was the custom in that vicinity for the plantation owner to notify the overseer by December first 'if he did not desire the overseer’s services for the following year, and that if the overseer did not receive such notice prior to that time it was understood' that he should continue for another year.

He says that he received no such notice from' defendant but, on' the contrary, defendant instructed him what to do for the following year; took him' out on the plantation and told him what crops to plant and where to plant them, gave him instructions with reference to the removing of certain timber in the year 1923, and, in fact, led plaintiff to believe that he was to remain as overseer for the entire year 1923.

On this point defendant swears positively that he notified plaintiff in November, 1922, that his services were not wanted for 1923,

He says he notified him again in December 9th and again in January, 1923, when he had his neice to write plaintiff a letter asking for the residence that he was then occupying.

Defendant swears that while he did give, plaintiff certain instructions in December, 1922, and in January, 1923, these instructions were not given in contemplation of plaintiff’s remaining as overseer for the year 1923.

He explains that plaintiff’s time did not expire until December 31, 1922, and that he gave instructions from day to day as to what plaintiff should do, and that plaintiff had no where to go after his time expired on December 31, 1922, and requested that he be allowed to remain in' the house until he could get a place to go and stated that for the use of the house he would help in the management of the place, which accounts, he says, for the fact that plaintiff did some work in January, 1923, under his instructions.

Plaintiff called as a witness William Waldron who testified that in the month of December, 1922, defendant told him that plaintiff would remain with him for the year 1923.

Defendant denies this, but says that he had some conversation with Waldron in September in which he probably told him that plaintiff would stay. •

Plaintiff introduced a letter dated January 23, 1923, signed by defendant, addressed to plaintiff, in which it was stated that inasmuch as plaintiff’s services had been unsatisfactory for the last fifteen or twenty days and that inasmuch as plaintiff had been consulting attorneys with a view of suing defendant, plaintiff was asked to send in his resignation at once.

Defendant, in explanation of this letter, says that he did not write it but that it was written by his neice; that he told her to write plaintiff that he wanted his residence; that, plaintiff had already been discharged and was permitted to remain in the house until he could get another; and that inasmuch as plaintiff had consulted lawyers with reference to a suit against him on account of the amount which he claimed for the year 1922, he thought plaintiff was no longer entitled to remain in the house, and therefore he had this letter written asking him for the house.

The young lady who wrote the letter says that her uncle did not tell her to write for plaintiff's resignation but to request that he give up the residence and that he wanted to be courteous and polite and did not want to tell him to get out and that she thought it proper to write as she did.

To corroborate his testimony that he had notified plaintiff that he did not desire his services for 1923, he called a colored man named John Williams who was employed to feed the stock on his plantation in the year 1922.

Williams testified that defendant told him in December to quit feeding plaintiff’s horse. He says he did quit feeding the horse but that the horse was about to starve to death and he fed him some after that to keep him alive.

Deféndant also called as a witness his nephew, Graham Kelsoe, who says that he was talking to Pickels, the plaintiff, about January 8, 1923, and that he asked Pickles what he was going to do and that Pickles said:

“I don’t know, we haven’t made any .deal for this year.”

And further says that Pickels said he did not know what he was going to do during the year 1923 and that defendant had not settled with him for the past year.

This witness said that defendant told him in the fall of 1922 that he did not expect to keep • plaintiff.

He says he heard the conversation between plaintiff and defendant on January 24, 1923, and that defendant told plaintiff on that occasion that he had told him, plaintiff, in September that he did not need him for the year 1923, and asked him for the keys and that Pickels did not want to give them up without a receipt but that there were others present and that finally Pickels handed defendant the keys and said: “You all see I have given up the keys”, and further remarked “I suppose I am fired” and that defendant said “You have been fired since along in December, I told you I didn’t need you any longer”.

The District Judge held that there was no contract for the year 1923. However, he allowed plaintiff his salary until he quit work in January under his alternative plea set out in paragraph twenty of his petition.

As pointed out, the testimony is conflicting.

The District Judge is no doubt personally acquainted with the witnesses. He saw them and heard them testify. We cannot say that he has manifestly erred in his judgment.

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

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant, appellant, asks for a rehearing herein on the ground that-the court failed to give proper weight to the check for $109.50 in evidence, marked defendant’s exhibit 9, which was cashed by plaintiff and on the margin of which was written:

“Settlement in full to Dec. 1.”

This check and notation were considered by us before rendering our original opinion herein, but we did not think it of sufficient weight to overcome the finding of the trial, judge, who saw and heard the witnesses testify in favor of the plaintiff on that point.

It is not contended that plaintiff’s salary for the month of September was paid but defendant, both in his answer and his testimony, admits that it was not paid.

Defendant’s contention that plaintiff remitted his claim for salary for the month of September could not only be sustained by clear proof showing that plaintiff understood and intended to remit his claim for salary for that month.

Defendant further insists that a rehearing should he granted on the ground that plaintiff still holds his check for $75.00 for plaintiff’s salary for the month of December and that our judgment should direct cancellation or return of this check before defendant should be required to discharge this part of the judgment.

As we interpret the judgment, defendant is fully protected and cou’ld only be required to pay the amount of the judgment, less the amount of the check or to pay the amount of the judgment only after cancellation and surrender of the $75.00 cheek.

There is no reason, however, why the judgment should not he made more explicit on this point, but the doing of this does not, we think, constitute a change or modification of the judgment such as would cast the plaintiff, appellee for the costs of the appeal, and this modification can be made without granting a rehearing.

Our original decree herein is recast by adding thereto the following provision:

This judgment is subject to a credit of seventy-five dollars for defendant’s outstanding check in favor of plaintiff for that amount for plaintiff’s salary for the month of December; or said check must be returned to defendant before execution of this judgment. And as thus recast our judgment herein shall remain as originally rendered. Costs to be paid as provided in our original judgment herein. And subject to this modification or explanation of the judgment herein rendered a rehearing is refused.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2369
    Second Circuit Appeal
    J. W. ALLEN v. H. L. BOYETT, ET AL.
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest- — Landlord and Tenant — Par. 107, 111.
    Where lessor’s lien and privilege were on furniture and fixtures which the lessor had when the trustee in bankruptcy for the lessee discharged the lessor without including the furniture and fixtures in the bankruptcy proceeding, the lessor still has his lessor’s privilege on the furniture and fixtures on his premises.
    2. Louisiana Digest — Landlord and Tenant — Par. 42.
    Act 128 of 1894, is not a prescriptive act and has nothing to do with the limitation of suits as to within what time they shall be brought. Its only effect is to limit leases of longer duration than one year to twelve months in the event of the death or insolvency of the lessee.
    3. Louisiana Digest — Estoppel—Par. 26.
    The fact that the plaintiff received a dividend out of the proceeds of defendant’s property on which he had no privilege, cannot estop him from still asserting his lessor’s privilege on the furniture and fixtures.

      Appeal from the Eighth Judicial District, Parish of Winn, Hon. F. E. Jones, Judge.
    This is a suit for which the plaintiff seeks to obtain a judgment recognizing his lessor’s lien and privilege on furniture and fixtures situated in his store building. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pearce & Fuller, of Winnfield, attorneys for plaintiff; appellee.
    Moss and Peters, of Winnfield, attorneys for defendants, appellants.
   REYNOLDS, J.

In this case plaintiff J. W. Allen, seeks to obtain judgment recognizing his lessor’s lien and privilege on certain furniture and fixtures situated in! his store building which was leased to H. L. Boyett for the years 1922 and 1923 at $100 per month.

Mr. Lee J. Grigsby, who claims the furniture and fixtures, is made a co-defendant.

It is not denied that Mr. Boyett leased the building from Mr. Allen for the years 1922 and 1923 and that the merchandise of Mr. Boyett remained in the building of Mr. Allen under lease until the same were sold at bankruptcy sale on December 28, 1923.

Mr. Boyett made a surrender in bankruptcy in October, 1923, and the rent for the months of October, November and December, 1923, was not paid, except $48.38 paid by order of the trustee in the bankruptcy proceedings.

Mr. Boyett was duly discharged from his-debts by order of the court in bankruptcy, but the furniture and fixtures in question were not sold by the trustee in bankruptcy because of claims of privilege thereon made by Mr. Allen for rent and by the Fir^t National Bank of Winnfield under a chattel mortgage.

Defendant Grigsby claims to have bought the furniture and fixtures from the First National Bank of Winnfield. ,

On these issues the case was tried and there was judgment in favor of plaintiff and defendants appealed.

OPINION

On the issues presented in this case the only question is whether or not the plaintiff, J. W. Allen, still has a lessor’s privilege on the furniture and fixtures in - controversy.

It is not denied that Mr. Allen has a rent claim against the furniture and -fixtures for $300 for the lease of the store building for October, November and December, 1923, at $100 per month, and that only $48.38 of that amount has been paid.

Defendant insists that Mr. Boyett’s discharge in bankruptcy discharged him from the debt for rent and that for that reason there is no longer any debt and that the privilege securing its payment was extinguished with the debt.

We cannot concur in this conclusion, for the reason that Boyett’s discharge was personal' to him.

The furniture and fixtures were not sold by the trustee in bankruptcy and plaintiff is only asking for a judgment in rem against these furniture and fixtures.

Defendant further insists with great earnestness that plaintiff’s claim for a privilege is prescribed by Act- 128 of 1894, which reads as follows:

“The lessor’s privilege and right of pledge shall not extend in case of failure of lessee in such a way as to secure rent for a term of more than' one. year after such failure.”

Our learned brother of the District Court held in an able written opinion that this act is not a prescriptive act and has nothing to do with the limitation of suits as to within what time they shall be brought, and that its only effect is to limit leases of longer duration than one year to twelve months in the event of the death or insolvency of the lessee.

We concur in this holding.

Defendant also insists that plaintiff is estopped by reason of having participated in the proceeds of the sale of his property in bankruptcy and sharing in the dividends paid out of the same by the trustee in bankruptcy.

This was in no way prejudicial to defendant and the amount paid to plaintiff was out of the sale of other property of defendant sold by the trustee in bankruptcy and wiiich property was not subject to plaintiff’s lessor’s privilege.

The fact that plaintiff received a dividend out of the proceeds of defendant’s property on which he had no privilege cannot, we think, estop him from still asserting his lessor’s privilege on the furniture and fixtures. He was not required to abandon his claim to a privilege on the furniture and fixtures as a condition of sharing in the proceeds of the sale of property on which he had no privilege and did not claim one.

Millot vs. Conrad, 112 La. 928, 36 South. 807.

“In a nut shell.” Plaintiff had a lessor’s privilege on the furniture and fixtures when the trustee in bankruptcy failed to sell them. He must continue to have this privilege until it is discharged in some way recognized by law.

Defendant insists that the First National Bank of Winnf ield had • a chattel mortgage on the furniture and fixtures at the time the trustee in bankruptcy refused to sell the same, but that question is not involved in'this case. “Sufficient unto the day is the evil thereof.” No decision that we might render in this case could bind the First National Bank of Winnfield, for it is not a party to this suit.

Mr. Grigsby claims to have bought the furniture and fixtures from the First National Bank; but admittedly the bank did not own them and its only claim was that it had a chattel mortgage on them— concerning which we express no opinion, for the reason that the bank is not a party to this suit, and we are without authority to pass upon its claims in this suit.

For these reasons the judgment of the lower court is affirmed.


author: CARVER, J.

text:
    No. 2382
    Second Circuit Appeal
    JOSEPH M. GOLDBERG v. C. L. PORTERIE, ET AL.
    (June 27, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Landlord -and Tenant — Par. 19, 41, 53.
    Where, after a fire, the temporary unfitness of the house due to the fire is of a very minor character, it will not be sufficient to annul the lease under Arts. 2699 and 2700 of the Civil Code.
    2. Louisiana Digest — Landlord and Tenant — Par. 19, 41, 53.
    Art. 2699 of the Civil Code must be read with Art. 2700 of the Civil Code which clearly contemplates that during a lease contract, repairs may become necessary which shall continue for longer than a month which totally or partially deprived the lessee of the use of the premises.
    3. Louisiana Digest — Landlord and Tenant — Par. 19, 41, 53.
    Even though the period of time necessary for repairs to a building damaged by fire is more than five weeks, it will not entitle the lessors to an annullment of the lease' as there was not a partial destruction as' contemplated by Art. 2697 of the Civil Code but only a necessity for repairs as covered by Arts. 2700 and 2717 of the Civil Code.
    4. Louisiana Digest — Landlord and Tenant — Par. 19, 41, 53.
    The evidence in this case shows that the damage to a building by fire was merely an injury to the building covered by Arts, 2700 and 2718 of the Civil Code, therefore, Arts. 2696 and 2697 of the Civil Code covering total or partial destruction do not apply.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit to collect notes due for rent of leased premises. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Gus A. Voltz, of Alexandria, Porterie & Bordelon, of Marksville, attorneys for defendant, appellant.
   CARVER, J.

Plaintiff sues C. L. Porterie and W. J. Brouillette for $1,000, besides interest 'and attorneys’ fees, the amount of twenty notes given by rent of three rooms in a brick building in Alexandria in connection with a lease of said rooms, which lease had still twenty months to run but which plaintiff alleges, was broken by abandonment of the premises on the part of the lessee.

Plaintiff also sues Amet Guillot, E. N. Labord and S. DeKnux sureties on a Pond given by the lessees to secure performance of the lease contract.

The lessees had, with the consent of the plaintiff, sublet the premises to a Mrs. Posner, whom they called in warranty but who was dismissed on an exception of no cause of action, from the judgment of which defendants do not appeal.

Defendants seek to justify the admitted abandonment on the ground that a fire had partially destroyed the leased premises, necessitating reconstruction thereof and rendering the premises untenantable and unfit for use for a period of forty-five days.

The District Judge gave plaintiff judgment as prayed for, from which judgment defendants appeal.

I.

Defendants cite Civil Code, Article 2699, reading:

“If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls shall intercept the light of a house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity.”

And claim that inasmuch as the proof in this case shows that the leased premises for some time after the fire did cease to be fit for the purpose for which it was leased they have the right to annul the lease.

In our opinion the temporary unfitness shown in this case was not sufficient to entitle defendant to an annulment.

The . article in question must be taken in connection with Article 2700, which clearly contemplates that during a lease contract repairs may become necessary which shall continue for longer than a month and which may totally or partially deprive the lessee of the use of the leased premises.

That article reads as follows:

“If, during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs cannot be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience , he undergoes thereby, and though he be deprived either totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessened in proportion to the time during which the repairs have continued, and to the parts of the tenement of the use of which the lessee has thereby been deprived.
“And the whole of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house, or- the room and to take another house, while that which he had leased was repairing.”

In this case the defendants sought to prove that the premises were unfit during a period of between four and five weeks.

The plaintiff and his witnesses testify they were made ready in less than thirty days.

It is not necessary for us to determine the precise length of time during which defendants were deprived by reason of unfitness, of the use of the premises. Were it even longer than five weeks this would not entitle them to an annulment if there was not partial destruction as contemplated by Article 2697 but only necessity for repairs as covered by Article 2700 and Article 2717.

That deprivation of the use of the premises was more or less than a month did not affect the question of annulment but only the question whether the rent should or should not be lessened.

Article 2717 reads as follows:

“The expenses of repairs, which unforeseen events or decay may render necessary, must be supported by the lessor, though such repairs be of the nature of those which are usually done by the lessee.”

Defendants did not wait to see how long it would be before the premises could be restored. On July 22, only nine days after the fire, they had their attorney write to plaintiff formally demanding cancellation of the lease and referring to his, the attorney’s conversation with plaintiff on the same subject “several days ago”.

Defendants admit that they never requested plaintiff to hasten the repairs but stood upon their supposed right of annulment.

We are satisfied that the premises would have been made fit within a much shorter time than was actually consumed if defendants had wished. However, this is not a determining feature.

II.

Defendants also urge that they have a right to demand annulment under Article 2697, Civil Code, which reads as follows:

“If, during the lease, the thing be totally destroyed by an unforeseen event, or if it be taken for a purpose of public utility, the lease is at end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim for damages.”

Construing this article with Article 2700 and Article 2717, we think the case turns on the question whether the evidence in this case shows partial destruction and therefore falls under 2696, or only injury, and therefore -under Article 2700.

Article 2717 clearly contemplates that unforeseen events may injure the leased premises, thereby necessitating repairs, in which event the lessor must make them.

The imposition on the lessor of the obligation to make repairs necessitated by unforeseen events, implies that the lease is to continue, and is inconsistent with the idea that it either terminates itself or may be terminated at the option of the lessee.

We think, therefore, that if the damage in the instant case is merely an injury, it is not covered by Article 2697, which applies to cases of destruction, the first sentence, the total destruction, next the partial destruction.

The sublessee had removed one of the partitions thus converting the premises from three • rooms to two rooms.

A fire broke out July 13, 1924, in the room adjoining the sublessee’s rear room. The heat from the fire scorched and blistered the woodwork of the front room, necessitating scraping and repainting. New electric wiring was necessary for both rooms. .

The chief injury was in the back room, the woodwork of which was also scorched and blistered, requiring scraping and repainting. There was some slight damage to the floor of the back room. One window had the glass knocked out and the shutters were knocked or burned off, and the partition wall between this back room and the room where the fire broke out was considerably burned.

The fire burned clear through the wall in places but did not totally destroy it. The evidence is somewhat conflicting as to the amount of injury which this partition wall did suffer and also as to the amount of reparing or reconstruction that had been done on it. The proof convinces us, though, that some of the reconstruction was not necessitated by the fire but by the elimination of a door which had formerly been in this wall but which it was desired to close. The wall was 10 by 18 feet, made of standard construction, that, is 2 by 4 studding placed about two feet on centers, ceiled on both sides. Only two .or three new studs were put in. On the side of the wall where the fire originated the destruction was much greater than on the other side.

Hudson, who superintended the repairs to the building, stated that only about fifty-square feet needed replacing on the side of the sublessee and about one hundred and fifty square feet on the other side. Some of defendants’ witnesses testified the receiling on both sides of the wall was more extensive than this, but it is not claimed by any one that the wall was even as much as half destroyed.

It .may be difficult in some cases to determine what is destruction, necessitating reconstruction, and what mere injury, merely necessitating repairs. We have no difficulty, however, as apparently was the case with the District Judge, in concluding that the damage in this case was merely injury and not partial destruction covered by Article 2697.

Defendants refer us to Myers vs. Henderson, 49 La. Ann. 1549, 16 South. 729, and Rose vs. Smith, 139 La. 217, 71 South. 487.

In the Myers case, the leased property was a building on Canal street in New Orleans. Concerning the injury, the court says:

“It was a wreck, it was not' habitable, it was unfit for the storage of goods and ■merchandise. The necessary repairs to it required some months for completion.”

In the Rose case, the leased property was a three-story brick building fronting 70 feet on a street and extending 150 feet back to an alley; divided into a front part of 100 feet depth and a back part of 60 feet depth. The back part was evidently totally destroyed and the wall between the two parts was left in such an unsafe' condition that the Fire Marshall demanded its immediate demolition.

The damage in this case, though, is nothing like as serious as in the Myers or Rose case, nor is it anything like as serious as the injury in the case of Higgins vs. Wilner, 26 La. Ann. 544, about which the court speaks in Vincent vs. Frelich, 50 La. Ann. 378, 23 South. 373.

In the Vincent. case, the court says that it referred to the record of the Higgins case and found that one of the buildings leased had been entirely destroyed by the fire together with scaffolding necessary to the tenant’s business and that new constructions were necessary to restore the premises to the condition they were in prior to the fire.

In the Myers case and the Higgins case there was clearly partial destruction entitling the lessee to annulment. In the Vincent ease, though, the court considered that the injury did not amount to such partial destruction as would entitle the lessee to annulment. The injury in this case, we think, was much less than that in the Vincent case. In that case the leased premises consisted of two four-story brick stores connected by open arches in the dividing wall. The roof on one of these buildings was destroyed and part of the building itself. There was injury also to the upper floors, stairways and water-closets in that building. The adjoining building was also damaged, though the report of the case does not show how much.

The repairs in Bonne case vs. Beer, 37 La. Ann. 531, were, perhaps, more extensive than were necessary in this' case. The leased premises were a double four-story brick building. The middle wall was sinking. This wall had been partially cut away on the ground floor and was supported on arches. It was necessary either to build props under the arches or to lighten the weight of the wall resting on same. It was decided to do the latter. Other things necessary were some kind of work, not stated, on the .upper portion of the wall, reflooring, galleries on the upper floor and insertion of girders into- the wall to support it.

We think the District Judge correctly decided the case and his decision is therefore affirmed..


author: CARVER, J. ODOM, J. REYNOLDS, J.

text:
    No. 2101
    Second Circuit Appeal
    JULIUS AARON & SON v. MRS. JOSEPHINE KEYSER, ET AL.
    (April 11, 1925, Opinion and Decree)
    (June 13, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 74, 76.
    Where the evidence clearly shows that a contractor who undertook to construct repairs to a building agreed to build it for a certain price including the labor and material, the contractor is liable for whatever unpaid balance that remains on the bill for the material furnished and used.
    2. Louisiana Digest — Mechanic’s Privileges —Par. 46.
    Where the owner of a house lets a contract for more than $500.00 without having it reduced to writing and without requiring the bond required by Act 262 of 1916, she is liable for the material used on her house, even though, she did not purchase it with her order or sanction.
    3. Louisiana Digest — Building and Loan Associations — Par. 3.
    The' sale of property to a Building and Loan Association, and its resale back to the owner, reserves a vendor’s privilege and special mortgage on the property sold as security which the. Building and Loan Association has for its loan. The title still remains in the' borrower, owner.
    4. Louisiana Digest — Pleading—Par. 114, 131.
    The fact that the act attached to the plaintiff’s petition does not contain the name of the contractor who ordered the material is of no importance where the testimony shows that he was the contractor and bought the material and used it in this work.
    5. Louisiana Digest — Privileges—Par. 2.
    Privileges are strictl juris and can be claimed only for those debts to which they are expressly granted by law.

      6. Louisiana Digest — Mechanic’s Privileges —Par. 18, 21.
    An account recorded by the furnisher of material headed “sold to A. M. Dearing, J. C. Keyser Building” does not give any privilege to the material man because it has not complied with the provisions of Act No. 229 of 1916, requiring that he shall file in the office of the Recorder of Mortgages a statement setting forth, first, the amount of the claim and the items thereof; second, the name of the owner; third, the name of the contractor; fourth, the name of the claimant, and fifth, the description of the property subject to the privilege.
    7. Louisiana Digest — Mechanic’s Privileges —Par. 18, 21.
    Construing Act 229 and Act 262 of 1916 together, the statement to be recorded should be ample enough to show at least the name or names of the debtors or the persons intended to be bound and such description of the property as will enable any one to identify it.
    ON APPLICATION FOR A REHEARING.
    8. Louisiana Digest — Mechanic’s Privileges —Par. 46; Laws — Par. 84, 85.
    Under Act 229 of 1916 the owner cannot by failing to take a bond deprive the . material men of the rights given them by Act No. 262 of 1916, for this would read out of Act 262 of 1916 the provision that if the owner fails to secure bond, the owner shall be in default and shall be liable to the same extent as the surety would have been.
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. tV. Jones, Jr., Judge.
    This is a suit against the owner of a building and the contractor who made repairs to it for judgment against them in solido for materials furnished and for recognition of material men’s lien. There was judgment, for plaintiffs and against the defendants in solido with recognition of plaintiffs’ lien and privilege on the property repaired. Both defendants appealed.
    Judgment affirmed for plaintiffs and against defendants in solido but reversed insofar as it recognizes a lien and privilege on the property.
    M. L. Dismukes, of Natchitoches, attorney for plaintiffs, appellees.
    J. O. Gunter, Rusca and Cunningham, of Natchitoches, attorneys for defendants, appellants.
   CARVER, J. ODOM, J.

Plaintiffs, Julius Aaron & Son, brought this suit against A. H. Dearing and Mrs. Josephine Keyser and asked for judgment against them in solido for $472.43, the alleged debt being for material furnished the defendants to be used and actually used in the repairing and rebuilding a residence belonging to said Mrs. Josephine Keyser in the parish of Natchitoches, Louisiana.

It is alleged that said A. M. Dearing had a contract with Mrs. ■ Keyser for the re-' pairing and remodeling of her residence, which contract was never reduced to writing and recorded as required by law; and that there was no bond required or given to secure proper performance of the contract and payment of the laborers and material men; and further alleged that plaintiffs recorded a sw'orn statement of their account and handed one to defendants on February 23, 1923 — within the delays specified by law; and further allege that no formal acceptance of the work was ever filed or recorded in the office of the recorder of mortgages of the parish of Natchitoches as required by law. And the petitioners ask for judgment for the amount of the account and that their lien and privilege allowed by law to furnishers of material be recognized and ordered enforced.

Defendant, Mrs. Josephine Keyser, answered, denying any indebtedness, and especially denied purchasing any material from plaintiffs, and alleges that the materials were purchased by said A. M. Dearing, as a contractor, to remodel a home owned by her; and she says that the money paid out was paid by the Natchitoches Building and Loan Association, and that she conveyed her property to said ■Building and Loan Association with the view of having it remodel her home, and that the contract for remodeling the same was entered into by said Dearing and said Building and Loan Association. She denied ■that a statement of the account was ever handed to her or properly recorded, and denied that the account sued on was correct; and she sets up that some of the material charged for on the account was not used on the building.

Dearing, the other defendant, answered, denying any indebtedness to plaintiff, and sets up that he agreed to repair the residence of Mrs. Keyser but that no price was agreed upon, but that:

“All materials were to be furnished and labor paid and your respondent was to receive ten per cent plus the cost of material and labor.”

He admits that the material charged for in plaintiffs’ bill was gotten by him and used in the repairing of the Keyser residence and that he approved the bill, but states that Mrs. Keyser instructed him to buy said material.

There was judgment in the lower court in favor of plaintiffs and against defendants in solido for the amount sued for with recognition of plaintiffs’ lien and privilege on the property repaired; from which judgment both defendants appeal.

OPINION

The defendant, A. M. Dearing, is a 'contractor in the city of Natchitoches. He entered into a contract — or an agreement as he calls it — to repair and remodel the residence of Mrs. Josephine Keyser, the other defendant, which residence is in the city of Natchitoches. He began the work about the 1st of August and, according to his testimony, was engaged thereon about three months. There is some controversy over the question as to whether he ever completed the work which he set out to do, but in the view Which we take of the facts and the law applicable in this case we do not think it is important whether he did or did not complete the work.

It is certain, however, that no formal acceptance of the work has ever been made by the owner and recorded as is re quired by Acts 229 and 262 of 1916.

These points, that is, as to the completion of the work and acceptance thereof by the "owner, are raised in the pleadings and discussed in the briefs, but they are not issues in the case under the view that we take of it.

The testimony of Dearing is not clear as to what kind of a- contract he had with Mrs. Keyser; but J. C. Keyser, Jr., a son of Mrs. Keyser,. says there was a plan for the remodeling of the house made by his brother and that contractors were invited to make bids according to those plans and that they received two bids — one from Perini & Prudhomme and one from A. M. Dearing, and that Dearing’s bid was $400.00 under the other one.

And he says that under the Dearing bid, which was accepted, Dearing was to furnish all the material and labor that is, was to fix the 'house, for the sum of $1,836.45. His testimony on this point is corroborated by T. T. Hodges, who was in partnership with Dearing at the time the bids were called for, who says that Dearing brought to him a sketch from the Keysers and asked him what it would .cost to do the work, and that he did the figuring, and he says—

“Mr. Dearing was to supervise the work, I put down on the estimate everything that we agreed to do with the estimated prices. I copied in prices with the prices of material at that time as I do now, and what we agreed to do it for, and this looks like the estimate I gave Mr. Dearing on the Keyser house.”

He does not state the amount of the estimate.

Mr. Paul A. Ducournau, the secretary of the Natchitoches Building & Loan Association, says that his Association had a plan of the contemplated improvements and the contractor’s figures as to the cost, when Mrs. Keyser was granted a loan in order to enable her to make the repairs to her residence which she contemplated. He says that after the work wa§ agreed upon the Keysers wanted a sleeping porch added the cost of which was $300.00 making a total of $2,136.00.

Dearing says that the Keysers added the sleeping porch which he agreed to build for $300.00. This corresponds with J. C. Keyser, Junior’s, testimony that Dearing was to do the work, originally, for $1,836.45.

Counsel for Dearing contends that his client 'did not have the work under a specific contract to furnish the material and do the work at a stipulated price but that he was to purchase the material and do the work and that the Building & Loan Association was to pay for the material and labor as the work progressed and that Dearing was to receive, as compensation for his services ten per cent of the cost of the labor and material. In other words, that Dearing was to act as the agent' of Mrs. Keyser in the purchase of all material and in the employment of laborers and that he was simply to supervise the work and was to receive as his compensation therefor ten per cent of the cost thereof.

Of course if the agreement was that Dearing was to do no more than supervise the work, purchase the material and employ the labor for Mrs. Keyser, he acted as her agent in all he did and is not liable for the debt due the furnishers of material.

But, on the contrary, if he was to furnish all the labor and material and do the work for a stipulated price, he is bound.

But, as stated, the testimony of Dearing does not make it clear to us that his contract was, as his counsel states it was although in his testimony he speaks about his furnishing the material, etc. (page 29). He says:

“I furnished á lot more lumber than was specified and paid for it. I paid $408.00 more at Campti than I figured on, The amount I paid at Campti was $770.85.”

And he says:

“They asked me how much it would-cost to put a sleeping porch on the house, and I said four hundred dollars, and I agreed to do it for three hundred dollars, and they agreed to pay for it. They agreed to pay for the extras themselves and I went ahead and done it.”

This testimony is not at all consistent with his contention now that this was to be a “cost plus” job. The sleeping porch was extra and he agreed to build that for $300.00. If the contract was originally for a cost plus job, it seems but reasonable to assume that the extras would have been contracted for on the same basis. And then the fact he bought the lumber from Frost-Johnson Lumber Co., at Campti and had it charged to himself personally and that he purchased other material from the plaintiffs and had it charged to “A. M. Dearing, J. C. Keyser residence” is not consistent with the idea that he was acting solely as Mrs. Keyser’s agent. If he had been acting as Mrs. Keysfer’s agent and had agreed to supervise the work for her and receive as his compensation ten per cent of the cost of the labor and material, it would not have made any difference to him how much the- sleeping porch cost and there would háve' been no necessity for his making any specific bid on any of the work.

And yet we find, according to his own testimony, that he agreed to build the sleeping porch for the stipulated price of $300.00. Besides, as stated, there is positive testimony • in the record that he agreed to make the repairs at a /stipulated price.

We hold, therefore, that defendant Dearing . is liable for whatever unpaid balance there remains on the bill for material furnished and used in the repairing of this house.

As to the liability of Mrs. Keyser for the price of these materials, it is contended that there were no contractual relations between her and the plaintiff. In other wolds, that she did not authorize the purchase of these materials.

This was a contract for more than $500.00 entered into for the repair and reconstruction of her residence. The contract was not reduced to writing and, of course, not recorded ■ in the office of the Recorder of Mortgages, of the parish in which the building is situated. Nor did Mrs. Keyser, the owner, require of the undertaker a bond with good and solvent surety and have it recorded to secure the payment of all furnishers of material for the repair and reconstruction of said house, as required by Act 262 of 1916, page 536.

The purpose of that act, according to its specific terms is to require owners to procure bond with solvent and sufficient surety from the undertaker, contractor, master-mechanic, or. engineer for the protection of all parties interested in the contract.

Not having required such contract and bond, she is in default, and is • liable as a defaulting contractor.

This act specifically provides that—

“In default of surety the owner is to stand in the place of a defaulting undertaker, contractor, master-mechanic or engineer.”

Therefore, Mrs. Keyser, the owner, not having had the contract for the repairing of her residence reduced to writing and recorded and not having required bond with good and solvent surety from the contractor, under the plain and unambiguous terms, of the act, is liable for the unpaid balance due 'for all material furnished for and used in the repair and reconstruction of her house. She stands in the place and stead of a defaulting contractor. Mrs. Keyser failed to do what the law required that she should do for the pro- ■ tection not only of herself but of all laborers, materialmen and others interested in the contract.

We hold, therefore, that Mrs. Keyser is equally bound with A. M. Dearing for this debt under the letter of law. Furthermore, we see no reason why she should not be required to pay this debt as a matter of equity pure and simple. On the merits of the case, there is no dispute about the corrections of the account sued on. Plaintiff sold the material to Dearing for the Keyser house. Their original bill amounted to $722.45, on which there has been paid $250.00, leaving a balance of $472.45 yet due. The testimony is conclusive that all the material furnished by plaintiff was used in repairing Mrs. Keyser’s house. The bills were approved by the defendant, Dearing, and J. C. Keyser, Junior, says that Dearing bought the material from plaintiffs. The testimony makes it clear to us that the material furnished by the plaintiff in this case was used in the repair of this residence and that Mrs. Keyser knew that' the material, or a portion of it at least, was coming from plaintiffs. .And furthermore the testimony makes it perfectly clear that no more than $1,500.00 of the contract price for the repair of this house has been paid. Mrs. Keyser borrowed a sum of money from the Natchitoches Building & Loan Association with which to pay for the repairing of her house. The exact amount which she borrowed is not stated but we find in the record two deeds one from Mrs. Keyser to the Natchitoches Building & Loan Association for a stipulated consideration ■ of $2000.00 and the other by said Association to Mrs. Keyser, conveying the same property, stipulating a consideration of $2000.00 and reserving a vendor’s privilege and special mortgage on the property sold, which, as we understand it, is in accordance with the rules of such associations in making loans.

We therefore conclude that the loan which the association made to Mrs. Keyser was $2000.00. All this money remained in the hands of the Building & Loan Association to be used in repairing her house. Not all of this money has b'een withdrawn for that purpose, for according to the testimony of Mr. Ducournau there remains in the hands of said Association a little more than $300.00 belonging to Mrs. Keyser. All of which shows that Mrs. Keyser has not yet paid for the work done and material used in the repair of her house. It seems that the Building. & Loan Association is holding up payment of the balance in its hands subject to the orders of the court. .

The defendant, Dearing, now stresses the fact that his name does not appear on the account attached to plaintiff’s petition. We attach no importance to that fact. The testimony shows that he was the contractor and bought the material and used it in this work. That makes him liable for the debt. It is not the form used in making up a statement of an account which controls but the facts and circumstances surrounding the transaction.

Mrs. Keyser pleads that she did not purchase the material nor was it purchased with her order or sanction. We do not find that she purchased the goods and do not hold her bound for the debt on that ground; but she owes the debt because she let a contract for more than $500.00 without having it reduced to writing and without requiring the bond required by Act 262 of 1916, and because the testimony shows that the material was furnished by plaintiffs and was used in the repair and reconstruction of her house and neither she nor any one else has paid for this material.

ON THE QUESTION OF PRIVILEGE.

Plaintiffs contend that they have a first lien and privilege on the property repaired and ask the court to recognize the same and order the property sold to satisfy their debt.

There were no contractual relations between plaintiffs and defendant, Mrs. Keyser. Privileges are stricti juris and can be claimed only for those debts to which it is expressly granted by law. If plaintiffs have a privilege, it arises under some law specifically granting it. We do not find that plaintiffs have complied with any law on the subject. True, they did have recorded in the office of the Recorder of Mortgages their account within the time prescribed by law, as no formal acceptance of the work has been recorded by the owner and the delays for filing liens does not begin until such acceptance has been recorded; but they have not complied with the law in other respects. There is nothing in the statement recorded to show that Mrs. Josephine Keyser is the debtor of the debt nor is there any description of the property or the name of the contractor. The account which plaintiff had recorded is headed: “Sold to A. M. Dearing, J. C. Keyser building”. J. C. Keyser was the husband of the defendant Mrs. Josephine Keyser but did not own the property which. was repaired. The building is not even described as a residence. J. C. Keyser may own other property. If the recordation of that statement created a privilege at all that privilege operated some specific property. The law which gives to the furnisher of material for the erection or repairing of buildings does not grant a general privilege but a privilege only in the structure erected or repaired. There is nothing in the recorded statement indicating that the material was sold to Mrs. Keyser or was used in the repair of her house. ' The proof in this casé shows that the material sold by plaintiffs to Dearing was for the repair of her residence, and it is even ádmitted that it was used for that purpose and that the residence is correctly described in the petition. But the court does not and cannot create privileges. The court can do no more than recognize privileges which already exist. If plaintiffs have a privilege it exists by virtue of some law and not by virtue of any proof adduced on the trial of the case or any ruling of the court.

Act 229 of 1916, on the subject of building contracts and privileges, provides that any person claiming a privilege as a laborer or furnisher of material shall file in the office of the Recorder of Mortgages of the parish where the property is situated a statement setting forth, first, the amount of the claim and the items thereof; second, the name of the owner; third, the name of the contractor; fourth, the name of the claimant; and fifth, a description of the property subject to the privilege; verified by affidavit.

Act 262 of the same year on the same subject matter provides that all persons having claims against an undertaker, etc., shall file a sworn statement thereof with the owner and record a sworn statement thereof in the office of the Recorder of Mortgages, etc.

This latter act does not specifically set out that the name of the contractor, the name of the owner, and a description of the property shall be included in the recorded statement, but the act contemplates that the statement shall be full enough to identify it with some contract, some contractor, some property. It would be a vain and idle thing to record a statement of the account if there was nothing in the account to show who was the debtor.

Construing Act 229 and Act 262 of 1916 together, we think it is clear that the statement to be recorded should be ample enough to show at least the name or names of the debtors or the persons intended to be bound and such a description of the property as will enable any one to identify it.

In this case the statement does not name the contractor, does not state the name of the debtor, nor does it contain any description of the property. The only reference to any' property that it contains is “J. C. Keyser, Sr., Building”, and, as a matter of fact, J. C. Keyser, Sr., is not the owner of the property.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed insofar as it condemns the defendants, A. M. Dearing and Mrs. Josephine Keyser, in solido to pay the debt sued on. It is reversed insofar as it recognizes a lien and privilege on. the property of Mrs. Josephine Keyser. The costs of the lower court are to be paid by defendants; those of this court to be paid by plaintiffs.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

In an able brief filed in

support of her application for rehearing, counsel for Mrs. Josephine Keyser earnestly contend that our original decision herein is erroneous in holding her liable under Act 262 of 1916, and that Act 229 .of that year is the sole measure of her liability.

They confidently urge ■ that the question was determined favorably, to their contention in the cases of—

Rose vs. Eunice Theatre Co., 154 La. 97, 97 South. 322; McKinney vs. Eunice Theatre Co., 154 La. 94, 97 South. 327.

McNaspy vs. Eunice Theatre Co., 154 La. 96, 97 South. 327.

They quote the following from the Rose case.

‘‘If the owner complies with these conditions the Act (No. 282) is put into operation and works to his benefit by enabling him under certain conditions to rid his property of the privileges recorded against it before their payment and to throw the claimants on the bond.”
“If he elects not to come under it, or fails to comply with the conditions imposed upon him, or does the work in such manner as not to come within its provisions, those with whom the owner has contracted, verbally or in writing, and those with whom the contractor has contracted, may resort to Apt 229. So viewed the two acts are not conflicting. Each operates within its own sphere.”

They also cite Musey vs. Prater, 147 La. 71, 84 South. 498, and quote therefrom as follows:

“We are of the opinion that Act 229 refers to all building contracts, regardless of amount, whether verbal or in writing, where no bond is given by the contractor, and the contract and bond are not recorded in the manner provided for in Act 262, and as none of these things were done by plaintiff .in this' cause, the material men, defendants, have the right to assert their lien and privileges given under Act 229"

They conclude by saying that our opinion overrides both the Act 229 and the interpretations placed on it by the Supreme Court.

We have re-examined the question with great care and are constrained to adhere to our original opinion.

In the Eunice Theatre cases the contests were solely between furnishers of material and mortgagee whose mortgage was recorded prior to the registry of the instruments relied on to preserve the material-men’s, liens.

The question of the owner’s personal liability not being involved, whatever was said on that question was obiter dicta.

The questions were in favor of the materialmen.

In the Musey case, the owner had made a contract and taken a bond, but the contract was not recorded at all and the bond was not as it should have been, in favor of the furnishers of material and labor, nor was it recorded in the time required by the Act No. 262. For these reasons the court held that the owner was not entitled to the benefits of the Act No. 262- and the materialmen could claim the benefits of Act 229.

But this is far from holding that by failing to take a bond the owner can deprive the materialmen of the rights given them by Act No. 262 and free himself from the liability that Act places on him. To so construe the Act would read out of it one of its most important provisions, namely, that part of it which says:

“If the owner fails to secure bond * * * the owner shall be in default and shall be liable to the same extent as the surety would have been.”

The Supreme Court certainly did not’ mean that the Act would come into operation only when a bond was taken when this part of the Act makes express provision for cases where it is not taken.

In saying, in the Rose case:

“If he (meaning the owner) elects not to come under it or fails to comply with, the conditions imposed upon him, or does the work in such manner as not to come within its provisions, those with whom the owner has contracted, verbally or in writing, and those with whom the contractor has contracted, may resort to Act 229.”

The court meant no more than to say what it does, namely: That those with whom the owner or the contractor had contracted could resort to Act 229. The court did not mean and did not say that, that they could he confined to Act 229 as the sole measure of their rights and thus shut them out from any rights accorded to them by Act 262. Nor ' did the court mean or say that by. failing to comply with the conditions of that Act the owner could free himself from á liability imposed on him by the Act for the very reason that he did fail to comply with its provisions.

A party may waive his rights but he cannot waive his responsibilities.

In Louisiana Glass & Mirror Works vs. Irwin, 126 La. 555, 52 South. 765, the court, construing Act 134 of 1906, held that a materialman could not recover because no attested account was served on the owner within forty-five days after completion of the contract and no sworn account was recorded in the mortgage office. Such service and registry within that time were .necessary under that Act, but under Act 262 of 1916 such service and registry are only required to be made forty-five days “after the registry of notice with the recorder of mortgages by the owner of his acceptance of the work; until which time the delay to file privileges will not run”.

In this case this notice had not been recorded at the time of the trial.

There is no difference between the two Acts. Act 134 of 1906 says the purpose of this act is to require owners to secure bond with solvent and sufficient surety from the undertaker * * * for the protection of all parties interested in the contract as their interest may appear and which surety is to stand in place and stead of a defaulting contractor.

Act 262 of 1916 says “the purpose of this act is to require owners to secure bonds with solvent and sufficient security of the undertaker * * * for the protection of all parties interested in the contract and as their interest may appear, and said surety and in default of surety the owner is to stand in the place of the defaulting undertaker, contractor, master mechanic or engineer”.

Under Act 134 of 1906 if no claims were presented or recorded the owner could demand cancellation of the bond after forty-five days from completion of the contract.

Under Act 262 of 1916 the owner can demand this cancellation only after forty-five days from registry of his notice of acceptance.

In the Louisiana Glass & Mirror Works case the court said that under Act 134 of 1906 a materialman who had failed to file a sworn statement of his claim with the owner and to duly record same within the delay of forty-fiye days, has no right of action on the bond which may be summarily erased and cancelled on the demand of any party in interest.

We do not understand this to mean that he never had a cause of action but rather that his right had been extinguished.

But that cannot be said of a materialman who though he has not recorded his claim or served an attested account is yet in time to do so.

The most that can be said of a suit brought before such service or registry is that it is premature. But prematurity must be pleaded in limine litis, which was pot done in this case.

See 6 Louisiana Digest, verbo “Pleading”, paragraph 60.

If it had been, the proper course would have been to sustain the plea, but then the plaintiff could have made proper service and registry and then (unless in the meantime defendant had recorded notice of acceptance and forty-five days had elapsed) could have renewed his suit.

Contracts are not the only sources of obligations. The law itself is sometimes a course and we think it is in this case.

Section 1 of the Act clearly states that if the owner fails to secure bond he shall be in default and shall be liable to the same extent the surety would have been; and states, further, that the purpose of the act is to require owners to secure bonds for the protection of all parties in interest, which surety, and in default of surety the owner, is to stand in the place of the defaulting contractor.

Under this clear language Mrs. Keyser is to stand in the place of the 'defaulting ■contractor, Dearing, and as he is clearly responsible for the material bought from plaintiffs, Mrs. Keyser is likewise responsible.

Counsel complains also of our saying that the case is well founded in equity, and ask “why should defendant pay the contract price and then pay the unpaid bills of the contractors?”

It seems clear to us that no contract between defendant, Mrs. Keyser and defendant, Dearing, and no payments made under that contract could give Mrs. Keyser any equitable right to keep plaintiffs’ property without paying for it. It was once theirs. It is now hers. Presumably it was worth the price charged.. If plaintiffs fail to recover it is a dead loss to them. If they do recover, it is not necessarily a loss to her and it may be a mere disappointment. The entire work may be worth all it cost, including this claim. If, however, it is a loss, to Mrs. Keyser, it must be because she or those acting for her allowed Dearing to draw too' much on the contract price without seeing' that he paid for the the material which went to improve her property.

Rehearing refused.


text:
    No. 1920
    Second Circuit Appeal
    COMMERCIAL BANK OF ARCADIA v W. W. SIMMONDS J. M. BRYAN, Third Opponent
    (April 11, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Chattel Mortgages— Par. 3.
    Under Section 2 of the Chattel Mortgáge Law, Act No. 198 of 1918, a practical description in the mortgage taken in connection with the fact that the mortgagor is stated to be the owner of the property, is sufficient to enable the property to be identified.
    2. Louisiana Digest — Evidence-—Par. 224.
    Under Article 2276 of the Civil Code, parol testimony is admissible to prove that the animals mortgaged under the Chattel Mortgage Law, Act 198 of 1918, were the same as those seized in the suit.
    3. Louisiana Digest — Chattel Mortgages— Par. 3.
    Under Section 2 of the Chattel -Mortgage Law, Act 198 of 1918, it is- sufficient that the description contained . in the act is such as that the mortgaged property may be identified'by one who has read the act and made inquiries suggested by.it.
    4. Louisiana Digest — Evidence—Par. 224...
    Testimony that the animals mortgaged under the Chattel Mortgage Law, Act No. 198 of 1918, constituted all the animals owned by. the mortgagor at the time he gave the mortgage is a contradiction of the statement made in the act by the mortgagor that the property was in excess of that owned- by him and exempt from seizure .and, therefore, under Article 2276 .of the Civil Code, is inadmissible.
    5. Louisiana Digest — Chattel Mortgages— Par. 2.
    If the testimony fails to show that the owner of a chattel mortgage, under Act 198 of 1918, was aware of the insolvency of the maker of the mortgage when the mortgage was made, it cannot be, deemed a simulation under Article 1984 of the Civil Code.

      Appeal from Third Judicial District Court of. Louisiana, . Parish of Bienville. Hon. ■J...E. Reynolds, Judge.
    This is a suit in which the plaintiff executed a judgment against the defendant by; seizing mortgaged property under a chattel mortgage law owned by the third opponent.
    There w'as judgment for the third opponent and plaintiff appealed.
    Judgment affirmed.
    J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellant.
    R. L. Williams, of Arcadia, attorney for defendant, appellee.
    Goff & Barnett, of Arcadia, attorneys for third opponent, appellee.
   CARVER, J.

Plaintiff appeals from a judgment awarding the third opponent, J. M. Bryan, the proceeds of four mules and a mare sold under execution, in its suit against W. W. Simmonds, and claimed by third opponent under a chattel mortgage.

It alleges that the chattel mortgage is void because it insufficiently describes the property mortgaged.

In the 'alternative, it alleges that the mortgage, is a simulation or, if not, is a fraud.

I.

The description in the mortgage is as follows:

“Two mare mules of medium size weighing respectively about 900 & 1000 lbs. each about 5 years old the heavier mule being a dark bay and the lighter being a light bay .in color, and two mare mules about 6 years 'old weighing between 1000 and 1100 lbs. both black, one bay mare about 10 years old named Lieu weighing about 950 lbs. with white spots in her face.”

The mortgage contains the following statement:

“And- the said mortgagor specially declared .that he is the true and lawful owner of the movable property herein above described and mortgaged; that the same is in excess of the movable property owned by him and exempted from seizure under the constitution and laws of this state.
“And the said mortgagor does by these presents hereby bind and obligate himself, his heirs and assigns not to sell, alienate, deteriorate nor encumber the said property herein mortgaged to the prejudice of this mortgage; nor to remove said property out of the parish without the written consent of the mortgagee first obtained.”

The mortgage was passed before a Notary Public in Bienville parish and is signed by the mortgagee as well as the mortgagor.

The chattel mortgage law (Act 198 of 1918, page 372) provides, in section 2, as follows:

“That every such mortgage of property mentioned in Section 1 shall be in writing, setting out a full description of said property to be mortgaged, so that Same may be identified, and also stating definitely the time when the obligation shall mature. In order to affect third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof shall be recorded in the office of the recorder of mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor is a resident.”

Corpus Juris, volume 11, page 456, section 79, verbo “Chattel mortgages”, reads as follows:

“While the -courts recognize well established principles for determining the sufficiency of the description of the property, they also recognize the impossibility of fixing inflexible rules therefore. Further, the rules generally applicable to chattel mortgages as to prescription are less rigid than those applied to conveyances of realty.
“As against third persons, the description in the mortgage must point out its subject matter so that such persons may identify the. chattels covered, but it is not essential that the description be so specific that the property may be identified by it alone, if such description suggests inquiries or means of identification which, if pursued, will disclose the property conveyed. This rule is based on the maxim, that is certain which is capable of being made certain. So a description is sufficient if it be aided by parol proof and the property covered by the mortgage identified.”

The same volume, page 460, section 93, reads:

“Although the courts recognize certain general principles determining the sufficiency of the description of animals in a chattel mortgage, they are not uniform in the application of such principles when the rights of third persons become involved. In general a description is sufficient which suggests inquiries which, if pursued, would enable third persons to identify the mortgaged property. Many cases hold that animals are sufficiently described by merely stating their characteristics in respect to age, color, height, sex, and weight, or by indicating their marks and brands; while other cases have held such description, withput reference to location, ownership or possession, to be insufficient to enable third persons to identify the property. A reference to a herd book in which animals are registered has been held sufficient in connection with a statement of location.”

In support of these propostions, many cases are cited from various states. But none from Louisiana. Nor have we been cited to any by counsel. It seems to us that under the above mentioned authorities, the description in the mortgage in this case, taken in connection with the fact that the mortgagor is stated to be the owner of the property, is sufficient to enable the property to be identified, in the absence of any suggestion in the brief that the mortgagor owned other animals answering the description in the mortgage.

Parol testimony was received over plaintiff’s objection to prove that the animals mortgaged were the same as those seized in this suit and were all the animals owned by defendant.

We think the testimony was properly received at least as to the animals, seized being those mortgaged. The ground of the' objection was that the chattel mortgage as recorded could not be altered, amended or added to or the description added by parol testimony; that the chattel mortgage itself should show that it was the same property as that seized, that is, the description must be such that the property would be known by virtue of the description itself in the chattel mortgage.

At another place, the objection was stated thus:

“That is an indirect way of attempting to. describe the property as covered by the chattel mortgage if covered at all that parol testimony is not admissible to add to or take from it is not sufficiently described to identify the mortgage.”
“For the reason any testimony for the purpose of showing description adding to or taking from the purported chattel mortgage is inadmissible cannot be altered or amended by outside testimony.”

At another place:

“For the reason parol testimony is not admissible to add to or take from or * * * the description as purported to Ije in the chattel mortgage that the * * * requires a detailed description so that same ‘ may be identified which this purported chattel mortgage fails to do and the property attempted to be mortgaged cannot be identified and a further - description given by parol testimony.”

Our understanding of section 2, as copied above, is that it is not necessary that the chattel mortgage should contain such a description of the mortgaged .property as will itself identify it but it is sufficient if the description is such as that it 'may be identified; that is to say, any one read-, ing it may from the description contained in the act together with information derived from inquiries suggested' by it, be able to identify it.

This construction is evidently the one ‘placed on chattel mortgage acts in. other jurisdictions as shown by the citation from Corpus Juris above mentioned.

Evidently the law in the mind of the objector was Article 2276 of the Civil Code which reads as follows:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor what may have been said before, or at the time of making them, or since.”

The evidence offered, though, does not violate this prohibition, except in one respect, hereafter mentioned. It was not either against or beyond the act to show that the property seized was that mortgaged. Neither was any attempt made to show what the parties said before the act or at the time of making it or since. On the contrary, all the testimony, with exception mentioned, was for the purpose of sustaining it and therefore was for it instead of against it, and in line with it instead of beyond it.

The exception mentioned is the testimony that the animals mortgaged constituted all the animals owned by the mortgagor at the time he gave the mortgage. It must be admitted that this, if it is not a contradiction of the act itself, is at least, a contradiction of the statement made in the act by the mortgagor to the effect that the property mortgaged was in excess of that owned by him and exempt from seizure. Eliminating this testimony, though, the evidence of Bryan is positive and not disputed that the animals seized are the same as those mortgaged.

II.

The charge that third opponent’s debt is a simulation has been abandoned.

III.

We do not think the proof supports the charge that the chattel mortgage was executed in order to defraud defendant’s creditors. The plaintiff claims that Simmonds was insolvent to the knowledge of third opponent at the time the chattel mortgage was given and that therefore under Article 1984 of the Civil Code the chattel mortgage must be deemed to have been made in fraud of creditors.

That article reads as follows:

“Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be creditor, any advantage over other creditors of the obligor.”

But in our opinion the testimony fails to show that the third opponent was aware of Simmonds’ insolvency. The proof on that question consists solely of the admission made by Bryan himself as follows:

“Q. You and.Mr. Simmonds related by blood or marriage?
“A. He married my grand-daughter, yes, sir.
“Q. You knew that Mr. W. W. Simmonds was connected with Bryceland Mercantile Company, did you not?
“A. Yes, sir, I didn’t know much about it.
“Q. You knew Bryceland Mercantile Company had gone bursted?
“A. Not at the time I let him have money.
“Q. At the time you took the mortgage?
“A. Yes, sir.
“Q. You knew he had signed a whole lot of papers?
“A. No, I didn’t know he signed so many.
“Q. You knew it when you called on him for settlement?
“A. That’s the way he settled, by giving chattel mortgage.
“A. Yes, sir.
“Q. And the note you have sued on?
“A. Yes, sir.”

The admission that the third opponent Simmonds was connected with Bryceland Mercantile Company and that that company had failed falls far short of proof that he knew Simmonds was responsible for the debts of that concern and the admission that he knew Simmonds had signed a whole lot of papers falls equally short of proving 'he knew he had signed notes or other obligations.

In out opinion, the judgment of the lower court is correct and it is therefore affirmed.

Reynolds, Judge recused.


text:
    No. 1995.
    Second Circuit Appeal.
    WEST MONROE STATE BANK v. E. G CALVERT
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—-Par. 18 62.
    An exception no cause of action admits the well pleaded facts yet it does not admit mere conclusions in matters of evidence. A petition stating that the plaintiff bank loaned money to one who was not entitled to credit, due to the representation of its vice-president and claims damages from the vice-president, therefore, states matters of fact and not conclusions of law in matters of evidence, and therefore an exception no cause' of action will be overruled.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred. M. Odom, Judge.
    This is a suit to recover an amount which the .plaintiff bank lost by cashing a worthless check due to the alleged misrepresentation of its vice-president. There was an exception no cause of action filed which was sustained. Plaintiff appealed.
    Judgment reversed and case remanded for further proceedings according to law.
    Theus, (Irishman and Davis, of Monroe, and Sandel and Clark of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues defendant for $1400.00 lost by cashing a check purporting to be ’ the cashier’s check of an Oklahoma Bank, which check was presented by a party claiming to be Walter K. Johnson, the payee named therein.

The District .Judge sustained an exception of no cause of action in a written opinion reading as follows:

“Plaintiff sets up in its petition that defendant is indebted unto it in the sum of $1,400.00 and as a cause of action says, among other things:
“ ‘About the 18th day of June, 1921, the said E. G. Calvert come into the bank with one whom he introduced to its cashier F. G. Thatcher, * * * as Walter K. Johnson and that the purpose of the said E. G. Calvert in introducing him, said Walter K. Johnson, was for the purpose of identifying him and vouching for him and having him to do business with your petitioner; and he, the said E. G. Calvert, stated to the, said cashier, that the said Walter, K. Johnson had a check which he desired' the bank (your petitioner) to handle, and that he, the said E. G. Calvert, had a business transaction with him, the said Walter K. Johnson, who was to pay him $500.00. Whereupon the supposed Walter K. Johnson presented to said cashier a check which purported to be a “cashier’s check” * * * for * * * $2,500,000 payable to the order of Walter K. Johnson * * * which he endorsed and requested that he be paid $500.00 in cash and the balance placed to his credit. Whereupon he, the said cashier * * * relying wholly upon the statements and representations of the said E. G. Calvert who was then the vice president of said * * * bank, your petitioner, accepted said cashier’s check and paid $500.00 in cash and issued a deposit receipt -for the balance of $2,000.00; all of which was done in the presence of ■said E. G. Calvert, and that said * * * subsequently * * * drew $900.00 and * * * said E. G. Calvert presented a check .of Walter K. Johnson for $500.00 and was paid said amount * * * and that subsequently the said E. G. Calvert returned the $500.00 which had been paid to him.”
“And it is further alleged that said check was a forgery and its payment refused and that said purported and supposed Walter K. Johnson was a swindler and disappeared on the same day and has net since been found.
“And in paragraph 4 it is alleged that the said supposed Walter K. Johnson was a stranger to the petitioner and that the cashier would not have paid any. money to or given any credit to Johnson hut for the statements, representations and directions of the said Calvert who originated said transactions, and that the deal was consummated wholly on his representations and directions.”
“And in paragraph 6 it is alleged that said supposed Walter K. Johnson was a stranger to said ,E. G. Calvert and that he introduced him without knowing who he was or whether the said cashier’s check was ’ valid and without making any investigation as to the said supposed Johnson or as to the validity of said check, well knowing that the same would be accepted by the said cashier upon his recommendation and direction; and sets up that petitioner’s loss is due wholly to the carelessness and recklessness of said Calvert.”
“Defendant has tendered an exception of no cause of action and the only point to be decided by the court, of course, is whether plaintiff’s petition discloses a cause of action.”
“The pleader has been very specific in his allegations as to what was done and said by defendant, and of course for the purpose of the trial of the exception the allegations of the petition are accepted as true.”
“Plaintiff has lost $1,400.00 through its negotiations with the swindler Johnson and it is specifically alleged that ‘relying wholly upon the statements and representations of the said E. G. Calvert * * * your petitioner accepted said cashier’s check and paid * * * and that said cashiers would not have paid any money to * * * said Johnson * * * but for the statements, representations and directions of said * * * Calvert and that the loss is due wholly and entirely to the recklessness, gross fault, carelessness and negligence of the said E. G Calvert in securing your petitioner to cash said worthless check.”
“If the pleader, after setting up its loss on account of the handling of the worthless check, had said no more, about the transaction, than that its loss was caused by the representations and directions of the defendant, and that its conduct was influenced wholly by him, he would, in any opinon, have set out a cause of action. But his other allegations are fatal to his cause.”
“He says the cashier was influenced wuolly by what the defendant did and said, and he details what Calvert did and said so that the court knows that it was that influenced the cashier to act as he did. Now has Calvert bound himself in doing what plaintiff said he did?”
“Let’s see what he did and said. He went into the bank with one whom he introduced as Walter K. Johnson. So far as the court knows from reading the petition this man was in fact Walter K. Johnson. There is no allegation that defendant misrepresented the facts in this respect. And there is no allegation that plaintiff’s cashier accepted the check on the strength of the identity of Walter K. Johnson.”
“It does not appear that the name Walter K. Johnson meant anything to the cashier* so that it really < doesn’t matter whether the •man introduced was in fact Walter K-. Johnson or not, because plaintiff does not charge that its cashier handled the cashier’s check because he had faith in Johnson; and, as stated, for aught the petition discloses, the man introduced was Walter K. Johnson.”
“The pleader further says ‘that the purpose of said Calvert in introducing the supposed Walter K. Johnson was for the purpose of identifying him and vouching for him.”
“But how does the court know that, and how did the cashier know that that was defendant’s purpose? Let’s see what Calvert said. To quote: ‘and the said E. G. Calvert stated to the said cashier that the said Walter K. Johnson had a check or draft which he desired the bank to handle, and that he, the said Calvert, had a. business transaction with the Walter K. Johnson, who was to pay him $500.00.”
According to the petition, that is absolutely all that Calvert said. All of which was true. Johnson had the cheek and Calvert had a business transaction with him. Inasmuch as plaintiff has pretended to set out what defendant said, what his representations were, the court may assume, I think, that it has set out all he said. Manifestly, therefore, the allegation that ‘the purpose of the said E. G. Calvert in introducing the supposed Walter K. Johnson was for the purpose of identifying him and'vouching for him’ is a statement of the pleader not based upon any fact disclosed by the petition, except insofar as it may be assumed that inasmuch has he introduced him as Walter K. Johnson he intended to identify the man as Walter K. Johnson. And so far as the allegations show he was in fact Walter K. Johnson. But there is no fact alleged to support the allegation that he intended to vouch for him.”
“According to the petition, as soon as defendant introduced the stranger and said he had the check, the stranger presented the check, which was at once accepted by the cashier, without further investigation.”
“It does not appear that defendant intended to warrant the verity of the check presented by the stranger, and I do not think the cashier was warranted in thinking so.”
“It would seem that the cashier should have made some investigation in order to ascertain if -the check was genuine. He could have wired the bank 'in Oklahoma, which he afterwards did. But it was too late.”
“As a matter of law one is not liable to a bank in a case like this. Defendant did no more than introduce the stranger as Walter K. Johnson and told the cashier that Johnson had a check he wanted the bank to handle. He did not by doing that guarantee the payment of the check.”
“The court announced, substantially, the above conclusion from the Bench, at the time the exception was submitted. Counsel for plaintiff promised to submit a brief, which he has not done. I think the exception of no cause of action good and it is therefore sustained and it is ordered that plaintiff’s suit be dismissed at its costs. (Signed) Fred. M. Odom, Judge. Since the above was written the court has been furnished a brief of authorities and an argument by counsel for plaintiff. But the authorities and the argument do not convince me that the petition sets out a cause of action. Counsel says the suit is based on Article 2315 of the Civil Code which provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; and he states that ‘plaintiff’s complaint is not aimed at whether or not the party was Johnson or not, but rather that Walter K. Johnson was the swindler, and that Dr. Calvert assisted him in perpetrating a fraud on the bank by representing him to be responsible’.'’
“If the defendant represented the party whom he introduced ‘to be responsible’, most assuredly plaintiff has set out a cause of action. But in that case defendant would be liable, not under Article 2315 of the Code but as warrantor or guarantor.”
“But defendant did not represent him to be responsible. His failure to do so is precisely what the court has already said was fatal to plaintiff’s cause. He merely went into the bank with one whom he introduced as Walter K. Johnson. Let it be said that in doing' so he warranted and guaranteed that the stranger was Walter K. Johnson, it is not alleged in the petition nor is it suggested in argument or brief that as a matter of fact the stranger was not Walter K. Johnson. In fact plaintiff says in brief that the com- • plaint, is not leveled at that point at all, but that Walter K. Johnson was the swindler; and that Dr. Calvert assisted Jiim in perpetrating a fraud upon the bank by representing him to be responsible’.”
“But, as stated, Dr. Calvert did nothing of the kind. All he told the cashier was that the man introduced had a check which he wanted the bank to handle and that he, Dr. Calvert, had had a business transaction with him — all of which was true.”

Counsel in brief says:

“All the courts are in harmony that the only essentials to be inquired into are as follows: (1) Were the fraudulent representations made either by words, actions, or conduct? (2) Were such false representations knowingly or negligently or carelessly made, when the party making the representations knew or had reasonable grounds to believe that such representaions made by word or conduct would be relied upon? (3) Did the injured party rely upon such representations made either by word or conduct and did damages result? According to my understanding of the law the above sets out the principles involved in an action like the one here sought to be brought. But everything hinges on the answer to the first query; ‘Were fraudulent representations made either by words, actions or conduct?’ If there were, then the other two questions must be answered; otherwise: there need be no discussion of the other two. As shown already, no fraudulent representations were made. Therefore according to plaintiff’s own argument, there is no liability.”
“Plaintiff’s counsel/ in brief, says in substance that if there is a relation of trust or confidence between parties a greater degree of care and prudence is required than if such relationship did not exist. He no doubt intended to imply that Dr. Calvert holds some office of trust in the bank, in the absence of an allegation in the petition to that effect. Counsel insists that inasmuch as he alleged that the loss to the bank was due to the fault and negligence of defendant, he has set up a cause ■ of action. But he overlooks the fact that the court must construe .that allegation and the other allegations of the petition where it is set out just what representations were made by defendant.”
“The court holds that defendant made no representations to plaintiff’s cashier which are sufficient to hold him liable especially in view of the absence of any allegation that such representations were false.”
“The exception is good and it is sus-. tained and plaintiff’s suit is dismissed.
(Signed) Fred. M. Odom,
Judge.”

In stating, though, that the court could not assume, in the absense of an allegation to that effect, that defendant holds some office of trust in the bank, our learned brother of the lower court evidently overlooked the allegation in paragraph 2 of the petition stating that defendant was, at the time the check was cashed,’ vice president of the plaintiff bank. This, is an office of trust and confidence. It seems to us, too, that although the District Judge did not overlook the allegations about directions in the petition, yet that he did not give sufficient weight to these allegations. It no doubt would have been better pleading for the plaintiff to allege squarely that the check was cashed by the direction of defendant, if such was the fact. In stating, though, as the petition does, that the cashier would not have paid any money to or given said supposed Walter Johnson a deposit receipt but for the statements, representations and direction of the said E. G. Calvert, we think the cashing was done by direction of defendant. The same may be said of allegations elsewhere in the petition where it is interventially stated that Calvert gave directions.

Giving sufficient weight to these allegations, namely, that defendant was vice-president of the bank, especially if he was an active vice-president, we think the petition states a cause of action.

Counsel for defendant argues that while an exception of no cause of action admits the well pleaded facts yet it does not admit mere conclusions of law in matters of evidence and cite many decisions supporting this proposition.

But we think that the allegations to which attention is called are allegations of fact and not mere conclusions of law or matters of evidence.

It is decreed that the judgment of the lower court be reversed and the exception of no cause of action overruled, and the case is remanded for further proceedings according to law.