text:
    No. 3354
    Second Circuit
    BUELOW v. ABELL, SHERIFF, ET AL.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)

      Smith & McGregor of Rayville, attorneys for plaintiff, appellant.
    Ellis, Ellis & Hunt, of Rayville, attorneys for defendants, appellees.
   ODOM, J.

A tenant farmer, named R. E. Jordan, cultivated in the year 1927, land belonging to William P. Martin, under the share system, the agreement being that one-fourth of the cotton should go to the land-owner as rent. Jordan gathered the crop of twenty-one bales and carried it to the Delhi Compress Company, of Delhi, Louisiana, and had issued to him a negotiable warehouse receipt for each bale of' the cotton. He delivered to Martin, the landowner, seventeen of these warehouse receipts, but retained ¡possession of the other four. He sold the four bales of cotton, for which he had receipts, to E. A. Buelow & Company, cotton buyers, of Vicksburg, Mississippi, through Buelow’s agent and buyer, Stout, who lived at or near Delhi where the cotton was grown. In payment of the four bales of cotton, Stout drew a draft on Buelow & Company and attached thereto the four negotiable warehouse receipts. The draft, with receipts attached, was forwarded to Buelow & Company and was paid. The cotton remained in the warehouse at Delhi. The sale by Jordan to Buelow & Company took place on November 22, 1927. .

Subsequently, on December 20th, or about thirty days after the cotton had been sold and while it yet remained in the warehouse at Delhi and while the receipts were in the hands of the purchasers, Buelow & Company, Martin, the landowner, filed suit against his tenant, Jordan, alleging that he owned an undivided one-fourth interest in said cotton and that, as a furnisher of necessary supplies, he had a privilege on the other three-fourths interest alleged to belong to Jordan, under Article 3217 of the Civil Code. The cotton was sequestered in the hands of the warehouse company.

On February 13, 1928, judgment was rendered for Martin, the landowner, recognizing him as owner of an undivided one-fourth interest in the cotton and that “his lien and privilege as furnisher of necessary plantation supplies to the extent of $410.97 be recognized on and rendered executory against the remaining three-fourths undivided interest in the above described cotton owned by the said R. E. Jordan.”

As stated, this suit was filed and judgment rendered sometime after Buelow & Company had purchased the cotton from Jordan. Buelow & Company were not made parties to these proceedings and knew nothing about them until about March 10, 1928, when the Sheriff was about to sell the cotton at auction to satisfy Martin’s judgment.

Buelow & Company, plaintiffs in the present suit, then came into, court, asserting ownership of the entire interest in said cotton under their purchase from Jordan free from any lien for plantation supplies, and enjoined the sale of the cotton. Martin answered, reiterating his claim of ownership of one-fourth interest in the cotton and reasserting his privilege on the other three-fourths interest.

The District Court rendered judgment, recognizing Martin as the owner of one-fourth of the cotton, but rejected his demauds for a recognition of his privilege. Prom this judgment both parties appealed.

OPINION

Our conclusion is that the judgment appealed from is correct, insofar as it rejects Martin’s claim to a privilege on the cotton, and that it is erroneous insofar as it recognizes Martin as owner of one-fourth of the cotton.

Counsel for Martin, the landowner, who seeks to reverse the judgment of the lower court on the question of privilege, has filed no brief, but says, “the law, with respect to liens, and especially the kind contended for in the above case, is so well settled in our jurisprudence that attention need not be called to it.”

What counsel would have us hold is that as a matter of law the privilege for plantation supplies, under Article 3217 of the Civil Code, follows the crop under any and all conditions, and he contends that the jurisprudence is settled that it does. We think counsel is in error.

It is true that in the case of National Bank of Commerce vs. Sullivan (Union Oil Company, Intervenor), 117 La. 163, 41 So. 480, the Court held that such privilege is not confined to the growing crop, “but bears upon the products after they are severed from the soil and follows them into the hands of a purchaser who, buying directly from the planter, is presumed to know that such privilege may or actually does exist.” But that holding, as an unqualified proposition of law, was seriously questioned, if not altogether repudiated, in a later case, that of Union Seed & Fertilizer Company vs. J. Supple’s Sons Planting Company et al., 139 La. 692, 71 So. 949, where the organ of the Court, referring to the Sullivan case, supra, said:

“In fact, the decision cannot even be considered authority for the general proposition that the privilege of the furnisher of supplies follows the crop in the hands of third persons without registry of the claim; because, to ■ that extent, the then Chief Justice and one of the Associate Justices dissented from the opinion, and another of the Justices was absent, and did not take part in the decision.”

The Court at that time was composed of five justices, only four of whom took part, and, while all of the justices taking part in that case concurred in the decree under the facts there disclosed, yet two of them stated:

“We are not prepared to assent to the general proposition that the privilege of the furnisher of supplies follows the crop into the hands of third persons.”

Therefore, the principle there announced was concurred in by only two justices, not a majority of the court. We do not understand that the holding in the Sullivan case under the facts found by the court has been questioned; on the contrary, it has been affirmed. The criticism is that the rule was too broadly stated by the organ of the Court.

The facts in the Sullivan case were that in the month of September, while the cotton was still in the field and while the money advanced to the farmer to make the crop was being expended for that purpose, a third person bargained with the planter for a future delivery of the seed and advanced to him a certain sum in consideration of his obligation to make the delivery. The Court said:

“No one will pretend that such a transaction was a sale, and, no one will deny that the intervenor entered into it with full knowledge of the fact that the seed was probably, if not certainly, subject to privileges for labor and supplies.”

And the Court in commenting said that when the probability that there were privileges on the crop had become a certainty, insofar as the intervenor was concerned, it carried away from the plantation all the seed it could. The Court held that, under the circumstances, the seed in the hands of the intervenor were burdened with the furnisher’s privilege. But the intervenor was not an innocent purchaser; in fact, the Court said the transaction between the planter and the intervenor did not amount to a sale.

In a later case, that of Brooklyn Cooperage Company vs. Cora Planting Company, 137 La. 807, 69 So. 195, a broker bought sugar on the plantation where it was produced, and, while the sugar had been delivered by the planter, it had not been removed. The Court held that the sugar was subject to the furnisher’s lien. In that case, the Judge of the lower court held, it seems, that there had been no actual delivery of the sugar, and, Justice Land, the organ of the Court, said:

“There was no change in the physical possession of the sugar, and, if there was any delivery, it was merely constructive. A sale of movables without actual delivery does not affect third persons, and the property is liable in the hands of the vendor to seizure and attachment in behalf of his creditors.” (Citing Articles 1922 and 1923, Civil Code.)

But the Court went on:

“Even conceding that the sugar was delivered on the plantation, but not removed therefrom, It" was still subject to the privileges on the crops of the year.” (Sullivan case, supra.)

The Sullivan case and the Cooperage Company case are alike in that in each instance the sale was made on the plantation where the crop was grown and before it was removed therefrom. Under such circumstances, the purchser is charged with knowledge that the crop is, or may be, burdened with privileges. But in no case, insofar as we can find, has it been held that the (privilege follows the crop after it has been harvested, made ready for sale, removed from the plantation, carried to a public market, and there sold and physically delivered to an innocent purchaser.

On the contrary, it has been held that such privileges are lost when not asserted in time to prevent the products on which they rest from entering the channels of trade, the theory being that when such products are sold in open market and enter into commerce, they are no longer “crops,” but merchandise. (See Loeb vs. Collier, 131 La. 377, 59 So. 816; also Brooklyn Cooperage Company vs. Cora Planting Company, supra.)

Those are the very conditions we find in the case at bar. Jordan, the planter, picked the cotton, had it ginned and baled, carried it to Delhi, and there stored it in a public warehouse. For each bale of cotton, the warehouse issued and delivered to .him a negotiable warehouse receipt which recited on its face, “upon the return of this receipt and the payment of all charges and liabilities due the undersigned, as stated herein, this bale of cotton will be delivered to bearer, unless destroyed or damaged as herein provided.”

Jordan took these receipts to a merchant named Gunter, and left them with him. He went to Stout, Buelow & Company’s buyer, and offered to sell the cotton. Stout got the numbers of the bales from the receipts, went to the warehouse, took samples of the cotton and bought it. In payment for the cotton, he drew a draft on Buelow & Company, who have their office In Vicksburg, Mississippi, and attaclied the receipts to the draft. The draft, with receipts attached, was sent to Buelow & Company and was paid.

When these bales of cotton were removed from the plantation, put in a public warehouse and negotiable warehouse receipts of the kind described issued therefor, and, when the cotton was sold by Jordan, the owner, to Buelow & Company by assignment and delivery of the receipts, the cotton ceased to be a “crop,” but was merchandise, in the channels of trade, in commerce, and the privilege was lost.

Martin, who now asserts a privilege on the cotton, knew that Jordan was removing the cotton from the plantation and was placing it in the warehouse, and that there was being issued to him a negotiable warehouse receipt for every bale of it. These receipts, under the law, were muniments or documents of title. Title to and delivery of the bales were completed by the assignment and delivery of the receipts for value. There is no intimation or suggestion that Buelow & Company, through their agent and buyer, Stout, had any reason to suspect, much less knowledge, that Martin, or anyone else, claimed any privilege on the cotton.

Jordan had been a tenant on Martin’s plantation for six or seven years, and had always handled his cotton in the same way, to the knowledge of both Stout, the buyer, and Martin, the landowner. As to Buelow & Company, Martin’s lien was a “secret lien.”

In the case of Loeb vs. Collier, supra, the Court said:

“Privileges are in derogation of common rights, and secret liens hamper commerce, hence, privileges are strictly construed and secret liens are not favored.”

It is true that in that case the purchaser of the cotton had sold it to another. But the holding of the Court was based upon the proposition that when the furnisher of supplies stands by, without asserting his lien, and allows the product to enter the channels of trade, he loses his lien, for, said the Court, “if this were not true, it would be unsafe for anyone at any time to buy from anybody a bale of cotton, a sack of rice or a pound of sugar.”

Martin’s other point is that, as landowner, he owns an undivided one-fourth interest in each bale of cotton sold by Jordan to Buelow & Company, Jordan being his tenant under the share system. Our conclusion is, and we hold, that whatever interest he owned in said cotton was divested by the sale which Jordan made to Buelow & Company.

In the case of Commercial National Bank of New Orleans vs. Canal-Louisiana Bank & Trust Co., 239 U. S. 520, 36 S. Ct. 194, 60 L. Ed. 417, Ann. Cas. 1917E, 25, Supreme Court Reporter, Vol. 36, 194, the Court, through its organ, Justice Hughes, said:

“It is a familiar rule that one who has no title to chattels cannot transfer title unless he has the owner’s authority or the owner is estopped. See Civil Code (La.) Arts. 2452, 3142, 3145, 3146. It follows that, in the absence of circumstances creating an estoppel, one without title cannot transfer it by the simple device of warehousing the goods and indorsing the receipts. But if the owner of the goods has permitted another to be clothed with the apparent ownership through' the possession of warehouse receipts, negotiable in form, there is abundant ground for protecting a bona fide purchaser for value to whom the receipts have been negotiated. Pollard vs. Reardon, 13 C. C. A. 171, 21 U. S. App. 639, 65 Fed. 848, 852; Williston, Sales, 421. The effect of the negotiation of warehouse receipts is defined in the uniform warehouse receipts act, enacted in Louisiana by Act 221 of 1908. This Act provides:
“ ‘Sec. 40. Who may negotiate a receipt, —A negotiable receipt may be negotiated,
‘“(a) By the owner thereof; or
“‘(b) By any person to whom the possession or custody of the receipt has been intrusted by the owner, if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of the person to whom the possession or custody of the receipt has been intrusted, or if at the time of such intrusting the receipt is in such form that it may be negotiated by delivery.
“ ‘See. 41. Rights of person to whom a receipt has been negotiated, — A person to whom a negotiable receipt has been duly negotiated acquires thereby—
“‘(a) Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value; and
“‘(b) The direct obligation of the warehouseman to hold possession of the goods for him according to' the terms of the receipt as fully as if the warehouseman had contracted directly with him. ******
“ ‘Sec. 47. When negotiation not impaired by fraud,, mistake or duress, — The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part by the fact that the owner of the receipt of the person making the negotiation, or was induced by fraud, mistake or duress to intrust the possession or custody of the recipt to such person, if the person to whom the recipt was negotiated, or a person to whom the "receipt was subsequently negotiated, paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.’
“It will be observed that ‘one who takes by trespass or a finder is not included within the description of those who may negotiate.’ (Report of Commissioners on Uniform State Laws, January 1, 1910, p. 204.) Aside from this, the intention is plain to facilitate the use of warehouse receipts as documents of title. Under Sec. 40, the person who may negotiate the receipt is either the ‘owner thereof,’ or a ‘person to whom the possession or custody of the receipt has been intrusted by the owner’ if the receipt is in the form described. The warehouse receipt represents the goods, but the intrusting of the receipt,' as stated, is more than the mere delivery of the goods; it is a representation that the one to whom the possession of the receipt has been so intrusted has the title to the goods.”

Jordan had lived on Martin’s place, as a tenant, for six or seven years. During all these years, he had handled all the cotton he produced just as he handled the crop of 1927 — that is, by depositing it in the public warehouse and taking receipts therefor. In 1927, and in other years, the receipts were made out in the name of and delivered to Jordan. He usually, but not always, delivered them to Martin and they settled later. But Martin always intrusted the handling of the cotton to Jordan and permitted the warehouse receipts to be issued in his name and delivered to him, and this to the knowledge of the trade. These receipts, to the knowledge of Martin, provided on their face that the cotton would be delivered to the bearer thereof. As stated by Justice Hughes, “the intrusting of the receipts * * * is more than a mere delivery of the goods, it is a representation that the one to whom the possession of the receipt has been intrusted, has the title to the goods.”

Martin, having voluntarily intrusted Jordan with, not only the possession and handling of the cotton, but the receipts as well, it follows that Buelow & Company, who purchased the cotton under an assignment and delivery of the receipts, are protected in their title under the provisions of the statute. (Act 221 of 1908.)

Counsel for Buelow & Company ask for attorney’s fees in the sum of $100.00, "for obtaining the injunction restraining the Sheriff and Martin from proceeding further with the sale of the cotton in controversy. The judgment of the lower court makes no mention of this claim and we, therefore, assume that this item was rejected. We think, under the circumstances of this case and the following authorities,' that the amount claimed and proved should be allowed:

White vs. Givens, 29 La. Ann. 571; Gilkerson-Sloss Co. vs. Yale & Bowling, 47 La. Ann. 695, 17 So. 246; Ludeling vs. Garrett, Sheriff, 50 La. Ann. 120, 23 So. 94; Soniat vs. Whitmer, 141 La. 240, 74 So. 916.

As a general rule, attorney’s fees are not allowed in cases of this kind, but there are exceptions, as noted in the above decisions, and we think this case falls within these exceptions.

Martin, the defendant in this case, knew that Jordan had sold the cotton in dispute to Buelow & Company long before he asserted any claim or privilege thereon. He testified that when Jordan delivered to him the warehouse receipts for two of the last six hales of cotton, Jordan told him that he had sold the other four bales. Thirty days later, Martin brought suit against Jordan to have his claim recognized, but did not make Buelow & Company a party thereto.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from' be affirmed, insofar as it rejects Martin’s claim to a privilege on the cotton; and that it be and is hereby reversed insofar as it recognized Martin as the owner of an undivided one-fourth interest in said cotton; and it is now ordered and decreed that the injunction sued out he maintained and perpetuated, and that Buelow & Company be decreed the owners of the entire interest in said cotton; and it is further ordered and decreed that the defendant, Martin, pay all costs of this suit, including §100.00 attorney’s fees.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,989
    Orleans
    ANDRY & FEITEL v. SOUTHLAND DEVELOPMENT CO., INC., ET AL.
    (November 26, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    Thos. E. Furlow, of New Orleans, attorney for plaintiff, appellant.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellee.
    C. A. Latham, of New Orleans, attorney for Southland Development' Co., Inc., appellee.
   WESTERFIELD, J.

Plaintiff, an architectural firm, furnished plans and specifications and rendered professional services to a corporation styled, Mattison, Kalin & Winsberg, Inc. For their services, a note of the corporation was given endorsed by Mattison and Winsberg, officers and stockholders. The note was not paid and this suit followed. It was alleged that the Southland Development Company, Inc., had assumed all the obligations of the Mattison, Kahn & Winsberg Corporation and judgment was asked against that corporation and against the endorsers of the note, Mattison and Winsberg. Winsberg was not cited and the court below found that the alleged assumption of the obligation by the Southland Development Co., Inc., had not been established, and, accordingly, rendered judgment against the defendant, Edward Mattison, in the sum of '$1,200.00, with interest, etc., as prayed for in plaintiff’s petition. Mattison has appealed.

It is the contention of defendant, as presented to this court, that the failure of plaintiff to sue the Mattison, Kahn & Wins-berg, Inc., the original maker of the note, constituted an abandonment of its claim against that corporation, the principal obligor, which abandonment it is alleged, resulted in the discharge of the endorsers of the note as parties secondarily liable. In support of this defense we are referred to Section 120 of. Act 64 of 1904 (Negotiable Instrument Act), reading as follows:

“A person secondarily liable under the instrument is discharged by the release of the principal debtor unless the holders’ right to recover against the parties secondarily liable is expressly reserved.”

Answering this contention, plaintiff says:

(A) “That a discharge by novation or payment must be specially pleaded.

(B) “There cannot be release of the principal debtor by the acceptance of a new debtor unless the discharge of the old debtor is expressly agreed to, and

(C)“A release of the maker of a note will not discharge the endorser where the rights of holder against the endorser are expressly reserved.”

The answer of the defendant, Mattison, is in effect a general denial. We are of the opinion that th,e defense relied upon cannot be considered, for the reason that it is not specially pleaded.

“Every means of defense, such as payment, release, etc., which tends to the ex-tinguishment of an obligation admitted or proved to have once existed, must be specially pleaded and cannot be urged under the general issue.”

Templeman Bros. Lumber Co. vs. Sinnot, 9 Orl. App. 305.

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


text:
    No. 11,509
    Orleans
    GITZ & GEIER v. CARROLL ET AL.
    (November 13, 1928. Opinion and Decree.)

      Arthur Landry, of New Orleans, attorney for plaintiff, appellee.
    H. G. McCall, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a verbal contract for the sum of $232.15, for labor and materials furnished and used in the bulding, 2005 Magazine Street, City of New Orleans, for. defendant’s account. The defense consists of an exception to the jurisdiction of the Court ration® materias. On the merits, the only contention arises over an item of $55.00, charged for the trussing of the unsafe portion of the roof of the building referred to.

The main reliance of defendant is upon the exception. In overruling this exception the trial judge gave the follownig written reasons, which we approve:

“The defendants filed an exception to the jurisdiction of the Court, ration® materi®, alleging in substance that the contract was for $777.15, less a credit of $300.00, which was paid on account. That the said contract was one indivisible obligation for more than $300.00. That in this suit and in the suit No. 148,503 (Section) of this Court, the plaintiffs have divided the amount claimed to be due them into two separate claims, each for less than $300.00.
“The Code of Practice, Art. 91,. as amended by Act 293 of 1926, approved November 2, 1926, gives this Court concurrent jurisdiction with the Civil District Court of all suits above $100.00, and not exceeding $300.00, exclusive of interest.
“C. P. 91. ‘When the jurisdiction of the Judge before whom a suit is brought, is limited to a certain sum, the question of jurisdiction must be decided by the amount claimed, and not by the sum actually due * * * but if one, in order to give jurisdiction to a Judge, demand a sum below that which is really due to him, he shall be presumed to have remitted the over-plus and after having obtained judgment for the Sum claimed, he shall lose all right of action for that overplus.’
“C. P. 158. ‘If one demands less than is due him and does not amend his petition in order to augment his demand, he shall lose the overplus.’
“ ‘A suit brought in the First City Court to recover the sum of $80.00, alleged to have been paid under a contract declared to have been abandoned by them discloses on its face a cause falling within the jurisdiction of that court. * * * The issues stated are matters of defense, and what is set up by defendants in defense does not oust the Court’s jurisdiction over a claim by plaintiff, which as stated, falls legally within the jurisdiction of that Court.’ Schick vs. Corbett, 52 La. Ann. 180, 26 So. 862.
“While it is true that the law abhors a multiplicity of suits, and aims at protecting parties against the annoyance of repeated law suits in regard to the same subject matter (Stafford vs. Stafford, 25 La. Ann. 223; Reynolds vs. Mayor, etc., 47 La. Ann. 1289, 17 So. 802, and State ex rel. Dobson vs. Newman, 49 La. Ann. 52), the evidence taken in this matter to determine whether or not the Court has jurisdiction (State ex rel. Rothang vs. Judge, 34 La. Ann. 1142, and Elster vs. Picou, 144 La. 1052, 81 So. 710), shows that the work done herein was the repairing of a building at a fixed price for each portion or part of work to be done; the parties practically agree as to the cost of each portion and the character of work to be performed, but disagree as to whether it was a single contract.”

Counsel, in their briefs in this Court, called our attention to the case State ex rel. Henry G. Dodson vs. E. F. Newman, Justice of the Peace, 49 La. Ann. 52, 21 So. 189, from which the following is quoted:

“One single cause of action cannot be split up and divided into a multiplicity of suits for the purpose of defeating the jurisdiction of the Court to which the action jurisdictionally belongs;” and “if it be thus divided and multiplicity of suits be consecutively filed in a Court not constitutionally endowed with jurisdiction of the whole sum, or entire cause of action, the same will be treated as one single suit, and our writ of prohibition will go to the judge of the court entertaining the suits, and arrest their further progress.”

If the suit before us, could be 'treated as a part- of the other suit, referred to by counsel as pending in the First City Court, and considered as one suit, and if the judge of that court should be prohibited from entertaining the suits, and, their future progress arrested by a writ of prohibition, as was done in the cited case, by the Supreme Court, counsel should have invoked the supervisory jurisdiction of the Supreme Court, for it alone has the authority and capacity to afford the relief which he seeks. The several Courts of Appeal of this State have no supervisory jurisdiction and may issue writs of mandamus, certiorari, prohibition, etc., only in aid of their appellate jurisdiction. State ex rel. Louis A. Majendie vs. Constable of First City Court et al., 1 La. App. 139.

On the merits, the defense does not appear to be serious, in fact, was not argued in this Court at all.

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


author: LECHE, J.

text:
    No. 385
    First Circuit
    VINCENT ET AL. v. ELEAZAR ET AL.
    (January 21, 1929. Opinion and Decree.)
    J. E. Kibbe, of Abbeville, attorney for plaintiff, appellant.
    Broussard and Samson, of Abbeville, attorneys for defendant, appellee.
   LECHE, J.

Paul E. Eleazar held a note for two hundred twenty-four and 20-100 dollars ($224.20) made and subscribed by Willie Vincent and endorsed by Gerasin Vincent, Euphemon Vincent and Duplessis Vincent. The maker and endorsers having failed to pay the note at maturity, Paul E. Eleazar recovered judgment for the full amount of the note, $224.20, together with 8% interest, 10% additional as attorney’s fees and costs of court, on May 21, 1927, against Willie Vincent, maker, and Gerasin Vincent, Eupliemon Vincent and Duplessis Vincent, endorsers, in solido. On the day the judgment was rendered, it was recorded in the mortgage records of the Parish of Vermilion and thereafter affected as a judicial mortgage all the immovable property of Willie Vincent and his co-defendants, situated within the Parish of Vermilion.

On October 28, 1927, Willie Vincent sold to Meaux Brothers a tract of land situated in the Parish of Vermilion, containing twenty-four (24) acres, as well as any other property, though not specifically described in the act of sale, which he, Willie Vincent, might own in the Parish of Vermilion. This sale was made in consideration of four thousand five hundred sixty-four and 82-100 dollars, represented by past due notes of Willie Vincent held by Meaux Brothers, ■ which notes were surrendered as “paid in full,” by the vendees to the vendor.

On the day the sale was made by Willie Vincent to Meaux Brothers, Paul E. Eleazar signed the following document, which was presented to the Clerk and Recorder of Vermilion Parish:

“Abbeville, Louisiana.
“October 28, 1927.
“To P. L. Broussard, Clerk of Court and ex-officio Recorder of Mortgages of the Parish of Vermilion, Louisiana.
“You are hereby authorized and empowered to release from the effects of the judicial mortgage recorded in Vol. 86, at folio 167, under entry No. 43,407, of the mortgage records - of your office, and resulting from the inscription of the judgment in my favor and against Willie Vincent et als., the following described property, to wit:
“In the Parish of Vermilion, Louisiana, one certain tract of land containing twenty-four acres, more or less, and being located partly in the west half of the southwest quarter of the southwest quarter of Section fourteen and partly in the west half of the northwest quarter of the northwest quarter of Section twenty-three (23) Tp 12 S. R 1 East, together with all and singular the buildings and improvements thereon situated and thereunto belonging. The property ordered released from the effects of the above mentioned judicial mortgage being the same which was this day purchased by Desiré and Leonard Meaux from Willie Vincent.
“(Signed) Paul E. Eleazar
“Broussard & Samson (Attys.)”

Plaintiffs in this suit are Gerasin, Euphemon and Duplessis Vincent who originally were endorsers on Willie Vincent’s note and who were condemned in solido with,. Willie Vincent for the full amount of said note in the judgment obtained by Paul E. Eleazar. Their demand is to have themselves released of all responsibility for the amount of the judgment, on the ground that they are merely sureties for Willie Vincent and that by cancelling and annulling the inscription of the judgment in so far as it affected the property of Willie Vincent, principal debtor, Eleazar has released them from all responsibility as sureties. The suit is summary and by way of rule against Eleazar and the Clerk and Recorder of the Parish of Vermilion.

The District Court refused the demand of plaintiffs and they have appealed.

Additional facts which may have some bearing upon the question presented for decision in this case, are, that Paul E. Eleazar received seventy-five dollars as a consideration for issuing and signing the authorization to cancel the judicial mortgage, and that he did so without the knowledge and consent of the plaintiffs Gerasin, Euphemon and Duplessis Vincent. It does not appear, however, whether he released Willie Vincent from all liability under the judgment which he had obtained, but tbe presumption is that he did not release him. The judgment in point of fact has never been credited in any sum whatever by Paul E. Eleazar. Nor is it questioned that Paul E. Eleazar knew that Willie Vincent was his principal debtor and that plaintiffs although condemned unconditionally and in solido in the judgment, were only secondarily liable as sureties.

Plaintiffs’ main reliance is upon C. C. Art. 3061, which provides that the surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety. Commenting on this article of the Code, the Supreme Court held in the case of New England Mutual Life Insurance Company vs. Randall et al., 42 La. Ann. 260, 7 So. 679, that the right of subrogation to the rights of the creditor is an essential part of the contract of suretyship and therefore, that if the creditor does any act without the surety’s consent, which impairs his rights of subrogation or the means of enforcing his claim against the principal in case he should pay the debt, the surety will be discharged. Article 3062 of the Civil Code further provides that the voluntary acceptance on the part of the creditor of an immovable or any other property in payment of the principal debt, is a full discharge of the surety, even in ease the creditor should be afterwards evicted from the property so accepted. In the case of the New Eng. Mut. Life Ins. Co. vs. Randall, already cited, it is held that when the creditor intends to look to the surety for payment, he is compelled to preserve unimpaired all his rights against the principal debtor.

The law as above stated, seems to be clear and unequivocal, but in the case of Interstate Trust & Banking Co. vs. Young, 135 La. 470, 65 So. 611, is to be found the enunciation of a principle which seems t-o restrict the rights of a surety, where the security for the debt is impaired. This restriction no doubt is founded upon equity, but appears to qualify the articles of the Code. It is there said that if the holder (the creditor) impair these securities (for the principal debt) he, to that extent loses his recourse against the endorser (the surety). The words “to that extent” imply that the surety is only released in part, up to the amount lost by the impairment. No doubt the defendant Eleazar will claim that the impairment in this case, the release of the judicial mortgage upon the property of the principal debtor, Willie Vincent, only amounts to $75.00, and that the sureties’ rights are only impaired up to that amount, and for that amount, he, Eleazar, is willing to release them.

Of course Eleazar could have ordered the cancellation of the judicial mortgage without receiving any consideration for so doing, in so far as his own rights and interest were concerned, but according to the articles of the Code, as construed in the New England Mutual Life Insurance case, he impaired and destroyed the right of subrogation which the plaintiffs were entitled to acquire in the event they paid to him the indebtedness of Willie Vincent, the principal debtor, and this he did without the consent of the plaintiffs, who are sureties. Obviously by signing the release or order to cancel the judicial mortgage, his act made it impossible to subrogate the sureties to the judicial mortgage.

The statement of law which is excerpted from the case of Interstate Trust & Banking Co. vs. Young, as already said, seems to add a qualification to the articles of the Code heretofore cited in this opinion, and seems to conflict with the principle enunciated in the case of Maguire vs. Woolridge, 6 Rob. 50, to the effect that “It is a well settled rule that the surety has the right to stand upon the very terms of his contract, even if he should be benefited by the change, and the creditor has no right to make any such change.” What is said in the Maguire case is quoted approvingly by the Court in Orleans & J. Ry. Co. vs. International Construction Company, 113 La. 413, 37 So. 11. See also Savings & Homestead Assn. vs. Frank, 146 La. 218, 83 So. 491.

In the case of Hill & Co. vs. Bourcier and Pond, 29 La. Ann. 844, the principle which restricts the right of the surety to a discharge proportioned in amount to the value of the security which the creditor has abandoned or given up, is announced in almost identical language with that used in the decision of Interstate Trust & Banking Co. vs. Young. That principle is now embedded in the jurisprudence of this State and this Court is bound to accept it without question. Now if we apply it in this case, it can be of little benefit to Eleazar, for the value -uof the security abandoned by Eleazar was a judicial mortgage equal in amount to the debt resting upon the sureties. The judicial mortgage was for two hundred and forty dollars with attorney’s fees, interest and costs, and it rested upon property which- sold for over four thousand five hundred dollars. It may be that Eleazar did not consider his judicial mortgage on account of its inferiority in rank, worth more than seventy-five dollars, but he had no right to compromise as to its value without the consent of the sureties, the plaintiffs in this case. He could make no change in the condition of his rights as mortgage holder nor abandon his mortgage without the consent of plaintiffs. 6 Rob. 50. He might with as much reason have given the principal debtor an extension of time to pay the debt, on the ground that such an extension would be to the advantage of the sureties.

It appears then that Eleazar having by his act, made it impossible to subrogate the plaintiffs, as sureties, to his right' of mortgage against the principal debtor, they are released entirely from all responsibility for the debt.

For these reasons, the judgment appealed from should be avoided and reversed, and plaintiffs should be recognized as released from all liability under the judgment rendered against them and in favor of Eleazar on May 21, 1927, and said judgment should be ordered to be cancelled and erased in so far as it affects them; and it is so ordered.


author: MOUTON, J. MOUTON, J.

text:
    No. 358
    First Circuit
    BANTA v. MORESI
    (December 4, 1928. Opinion and Decree.)
    (January 9, 1929. Rehearing Refused.)
    (February 11, 1929. Writ of Certiorari and Review Denied by Supreme Court.)

      Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellant.
    R. Lee Garland, of Opelousas, and John W. Lewis, of Opelousas, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff and his daughter, while at the home of defendant in Opelousas, left for a drive to Arnaudville, to see the flood during the high water in 1927.

Plaintiff was taken by defendant in his auto as his guest for the outing. He was driving a Packard. No untoward incident occurred going, but on returning from Arnaudville, the auto was overturned and plaintiff suffered injuries for which he brings this suit against defendant for twenty-one thousand seven hundred and forty-six dollars ($21,746.00).

The demand was rejected and plaintiff has appealed.

The accident happened on a curve about half-way between Arnaudville and Opelousas. On his way to Arnaudville, defendant passed on the right hand side of the curve, and coming back he passed on the left. The right side of the curve was practically free of gravel. There was, however, more gravel on the left hand side, and still a greater amount in the center of the roadway.

The defendant, as appears from the testimony, could have safely traveled in the auto he was driving, at a' speed of sixty or sixty-five miles an hour. Plaintiff claims he was traveling at forty-six or forty-eight miles an hour. In this respect he is contradicted by several witnesses who said that defendant’s speed while rounding the curve did not exceed forty miles an hour, and by defendant, whose testimony on this subject is, that he was not going over forty-five miles at the time which is clearly supported by the preponderance of the evidence.

It is shown by a storekeeper and his son who live in close proximity to this curve, that defendant was not traveling at a greater speed at the time of the accident than was usual with autoists that went at every hour of the day along this part of the highway. The fact is, that on the occasion in question, defendant as he entered the curve met W. F. Cain who was coming in his auto from Opelousas, in the opposite direction, and who testifies that defendant was not traveling at a greater speed than he was going, which he fixed at thirty-five miles. There was, therefore, nothing unusual as to the speed defendant was traveling and which certainly did not exceed forty-five miles an hour. This speed was not excessive, .considering the safe maximum speed of the auto defendant was driving.

Defendant passed the Cain car safely and immediately after negotiating it, swerved his auto to the left towards the center of the road when the front right wheel of his auto came in contact with large loose gravel which had been spread in the middle of the roadway, and as yet had not been packed or become embedded in the highway.

The proof shows that defendant’s car started “skidding” when the left front wheel struck the gravel while it was being swerved towards the center of the roadway. Defendant applied the brakes immediately but could not right his car which turned over, causing the damage. It was found after the happening of the accident, that the tire on the left front wheel of the auto was “deflated.”

In passing on this phase of the issue, the District Judge said:

“The Court’s appreciation of the evidence in this case has convinced it beyond any doubt that the cause of the accident was due to the deflated left front tire on that wheel and the driving in loose gravel at the same time.”

A careful examination of the record has likewise convinced us that such was the real cause of the accident, as it was not due to a dangerous, reckless or excessive speed of driving on the part of defendant. It must appear that the driver of an auto was at fault or guilty of imprudence or negligence at the time of the occurrence to entitle his invitee or guest to damages. C. C. 2315; Jacobs vs. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253.

In the instant case defendant could not have foreseen or anticipated the accident, and could not, as appears from the record, have prevented the overturning of the auto even with the most skilful driving. He was therefore neither at fault, negligent or imprudent, and .cannot be held liable.

Counsel for plaintiff endeavors to hold defendant responsible because as he contends, he knew at the time he invited plaintiff for the ride to Arnaudville, that the tires on his car were in bad condition. There is no proof that there were any apparent defects in the tires, or that defendant had any reason whatsoever to believe that there were any, latent or otherwise. It was his family car, and it cannot be justly supposed that he would have used it if the tires had been in a precarious condition, as he had ample means to replace them. It was shown, it is true, that the car had traveled 14,000 miles, but it appears from the evidence of experienced men in the automobile business that tires of the character in question, after being used over 25,000 miles are still in good running order. Because the tires on his car had gone over 14,000 miles, therefore, affords no ground for the contention that defendant knew, or even should have known that the tires might have been in bad condition, if in fact they were. The 'proof is, however, that a new tire may be deflated at any time, and without previously showing any defects in its make up or construction. This, it appears may likewise happen to an old tire.

Such being the proof on this question, we find no merit in the contention that defendant had any knowledge of any defect in the tires of his car. As a matter of fact, he could not have had such knowledge, if any existed, as the “deflating” of a tire may be the result of causes for which it is difficult if not impossible to account, as appears from the testimony.

We find no error in the judgment appealed from which is therefore affirmed.

ON APPLICATION FOR REHEARING.

MOUTON, J.

In our original opinion, we said that defendant on his way to Arnaudville had passed on the right side of the road which was practically free of gravel, and coming back to Opelousas, he passed on the left side where there was some accumulation of gravel, and still a greater amount in the center of the roadway. As the defendant had passed on the right side, going, he did not know there was more gravel on the left side, or that a larger accumulation was permitted to remain in the center of the roadway. Going, he had encountered no difficulty in making the curve, and returning, he had no reason to believe he would find more gravel on the left side, and much less to apprehend that there was more of it in the center of the road. He was, therefore, not chargeable with negligence or imprudence because of his traveling at about the same speed in going around the curve on his return trip.

In passing on the question of negligence, which is the vital issue presented, we said:

“The proof shows that defendant’s car started ‘skidding’ when the left front wheel struck the gravel while his car was being swerved toward the center of the road; that he immediately applied his brakes, but could not right his car, which turned over, causing the damage.”

In the case of Nicora vs. Cerveri, 49 Nev. 261, 244 Page 897, cited by plaintiff, it is therein said that defendant was traveling at an excessive rate of speed, “and in so doing left the traveled portion of the road and struck á pile of sand which had been placed there in connection with the fixing of the road, etc.”

In the instant case, considering the maximum rate of speed at which defendant’s car could travel, defendant was not, for the reasons stated in the opinion, going at an excessive rate of speed and there is also no proof to show that he had left the traveled portion of the roadway, which evidently were the important factors that led to the conclusion reached by the Court in the case relied upon by plaintiff, in his application for a rehearing.

The cause of the accident was ascribed by the District Judge to the deflated tire on the left front wheel, and the driving of the car in the loose gravel which had been allowed to accumulate in the center of the roadway and which we found could not have been anticipated or foreseen by the defendant, we therefore concluded that he had completely exonerated himself of the charge by plaintiff that the damage was the result of excessive speed in driving, or recklessness on his part.

We have nothing to add to our opinion in reference to the charge by plaintiff that the defendant knew, when he invited him for the ride to Arnaudville, that the tires on his car were in bad condition, and that he was therefore responsible for the injuries caused by the accident. There is no merit in this contention, nor in the others urged in the application.

Rehearing refused.


text:
    No. 370
    First Circuit
    CLARK v. FOREST LUMBER CO.
    (December 4, 1928. Opinion and Decree.)
    (January 9, 1929. Rehearing Refused.)
    (February 11, 1929. Writ of Certiorari and Review Denied by Supreme Court.)

      Mark C. Pickrel and Williams and Black-shear, of Oakdale, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff was injured while in the service of defendant company and brings this suit against it under the Employers’ Liability Act (Act 20 of 1914 as amended).

He alleges that he fell from a skidder boom which resulted in his injuries, causing permanent total disability to do work of any reasonable character.

Plaintiff avers that he was injured April 11, 1927, and that he has been paid by defendant company eleven 37/100 dollars ($11.37) per week from April 18, 1927, up to the 5th of April, 1928, the date this suit was filed. He claims that he was getting in wages at the time of the accident, six 25/100 dollars ($6.25) per day, totaling a weekly wage of forty-three 75/100 dollars ($43.75), entitling him to sixty-five (65%) per cent thereof as his average weekly wages amounting to twenty dollars ($20.00) per week during four hundred (400) weeks, the maximum allowance under the compensation statute.

Alleging that he had received only eleven 37/100 dollars ($11.37) weekly, from defendant, since April 18, 1927, to April 5, 1928, as aforesaid, plaintiff claims that he is entitled during that period of time to eight 53/100 dollars ($8.53) more per week, being the difference between eleven 37/100 dollars ($11.37) which he received, and twenty dollars ($20.00) per week which should have been paid him by defendant company, or a total of four hundred and seventy-four 65/100 dollars ($474.65), the equivalent thereof. He asks that the Court recognize his claim for this alleged difference from April 18, 1927, to April 5, 1928, and that thereafter his compensation be at the total of twenty dollars ($20.00) per week.

The lower court found that plaintiff had suffered a total permanent disability, gave him judgment at the rate of twenty dollars ($20.00) per week, *not to exceed a period of four hundred (400) weeks, decreed that the compensation" due on the date of the judgment be paid in a lump sum, and thereafter, that compensation be paid in weekly installments of twenty dollars ($20.00), the judgment to be subject to a credit of five hundred and sixty-eight and 50/100 ($568.50) dollars, as though paid April 2, 1928. Defendant has appealed.

An exception of prematurity was filed by defendant, grounded on paragraph B of Section 18, Act 85 of 1926.

Plaintiff, in his petition, alleged that he had not been paid the maximum compensation to which he was entitled under the law, and that defendant had refused to pay it.

The foregoing allegations were denied by defendant prior to the time fixed for the trial of the case.

Paragraph (B) of Section 18 of Act 85 of 1926 provides that when the allegations above referred to are contained in the complaint of the plaintiff and are denied by the defendant at the time fixed for the hearing, as they were in this case, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, the complaint shall be dismissed, and that this question shall be determined by the Court before proceeding with the hearing of the other issues involved.

The sole issue presented under the exception of prematurity, is therefore, as to whether or not 'it appears from the evidence that the allegation of plaintiff, that plaintiff had refused to pay him the maximum percentage to which he was entitled, was founded on a reasonable cause, or had a reasonable foundation in fact.

The language of the statute which refers to these essential allegations required in the complaint, says: “If it be shown that such allegations are without reasonable cause or reasonable foundation in fact,” the complaint shall be dismissed. The burden of proof that there is no reasonable foundation for the required allegations rests upon the employer, as it could scarcely be expected that plaintiff would proffer evidence to destroy the averments which are indispensable to sustain his demand for recovery.

In passing on this question, we think it is proper to take into consideration where the statute places the burden of proof, and also the language used in reference to the alleged refusal of the employer to pay, which entails a dismissal of the complaint only when it is shown that it does not rest on a reasonable cause, or reasonable foundation in fact.

Even if we be in error as to which of the parties litigant carries the burden of proof, the verbiage of the statute above referred to indicates quite clearly that au exception of prematurity is one of these technical defenses not favored in compensation suits, and which have been practically brushed aside by the liberal construction given by our Courts to compensation statutes, and always in favor of the employee.

The proof shows that plaintiff was paid eleven 37/100 dollars ($11.37) weekly, during a period of almost twelve (12) months by the Southern Casualty Company in which defendant lumber company carried insurance policies for its employees. It is claimed by defendant company that plaintiff appeared satisfied with these payments he was receiving, never complained during that period of time, did not ask for a larger amount until demand for his maximum weekly average was made by his attorney, which was too late to permit an investigation by defendant for this increased allowance thus demanded by the attorney, and that, as a matter of fact, defendant never refused to pay the maximum amount urged in plaintiff’s complaint.

On March 29, 1928, attorney for plaintiff addressed a letter to the Forest Lumber Company, defendant, saying that plaintiff had been receiving eleven 37/100 dollars ($11.37) during the period hereinabove stated, and claiming the difference between that amount and twenty dollars ($20.00) per week, the maximum allowed by law, from April 11, 1927, and for the continuing of payments on the twenty-dollar ($20.00) basis during four hundred (400) weeks.

The Southern Casualty answered this letter the day following, stating that plaintiff had been receiving eleven 37/100 dollars ($11.37) per week, which was the full compensation to which he was entitled, hut saying, if the attorney for plaintiff arrived at a .different computation, the insurance company would be willing to take up the matter further.

In reply to this letter, plaintiff’s attorney, on April 3, 1928, stated to the insurance company that plaintiff’s earning with the Forest Lumber Company, defendant, was forty-three 40/100 dollars ($43.40) per week, and which therefore entitled him to the maximum weekly compensation of twenty dollars ($20.00).

On April 4, 1928, the insurance company answered this last letter by saying that according to its record, plaintiff was doing watchman’s duties for which he was receiving two 50/100 dollars ($2.50) per day, and that he was being paid compensation based in accordance therewith, and concluded by asking that plaintiff make affidavit showing the days and nights he had worked, etc., and that upon receipt of that information, “we can go into the matter further.” The concluding part of these two letters shows that the insurance company desired more time to consider the demand of the plaintiff.

It will be observed that the. first letter by plaintiff’s attorney was written to the defendant company, and on the next day, the reply came to him from the insurance company, which shows that communication between the two cpmpanies was immediate, and that the insurance company had practically taken charge of matters connected with plaintiff’s claim. It seems, therefore, that the insurance company could have, without any delay, obtained the required information from the defendant company t'o answer as to whether it would or would not pay the increased amount asked. The further delay asked for in the two letters before mentioned, was not justified under the circumstances as we read the record. The position of defendant on this feature of the case, in which it claims it should have had further delay, is based on the fact, as claimed by it, that its sawmill at Oakdale had been closed for some time, that all its records, pay rolls, etc., had been destroyed because of no further need for them, and that its employees at the sawmill had since beeu dispersed in various places, creating a condition o'f affairs which demanded further time for investigation so that it might be in a position to find out, if, in reality, the maximum claim of plaintiff was well founded. The result of an investigation under a condition of affairs thus depicted, would in all probabilities have proved fruitless or so lengthy, that a delay beyond all reasonable measures would have been required before it would have been possible to ascertain whether or not defendant would refuse to comply with the demand of the plaintiff who could not be expected to patiently await the result of such an investigation.

R. C. Bolton, the record shows, ■ is the adjuster of the insurance company which has its home office at Alexandria, La. Plaintiff was asked as a witness, if he had said to Bolton whether he was entitled to more money. He said Bolton asked him if he worked day and night when he was injured; he answered that he was on duty twenty-four (24) hours’ time when he was injured, and that he asked Bolton if he was not supposed to get more money, and that Bolton said he would see about it. This conversation, plaintiff testifies, took place three or four months before, in the office of the insurance company at Alexandria. This evidence of plaintiff shows that Bolton knew plaintiff was claiming a greater amount than he was receiving from the insurance company of which Bolton was an officer, and it further shows that Bolton promised to look further into the matter. As such were the official relations between the officers of the company on the subject in question, Bolton should have inquired into the merits of plaintiff’s claim for a greater amount, as he had impliedly promised to do, unless we accept the probability of a deriliction of duty on his part as an excuse for the failure of his company to begin an investigation for the additional claim of the plaintiff, which was presented more than three months prior to the institution of this suit. It is true that Bolton denies that plaintiff ever mentioned to him that he was also employed as night watchman and was entitled to more money. Evidently the District Judge believed , plaintiff, and from the facts of the case, we find nothing in the record that would justify us in disbelieving him.

Counsel for. defendant says that defendant never refused to pay the additional amount claimed. He says, "to refuse means to decline to do, permit, deny, to refuse to consent.” Standard Dictionary. The defendant did not refuse expressly or in so many words, either spoken or written, but the statute invoked by it nowhere requires an express refusal. As it is shown that the insurance company failed to see about the additional claim during a period of more than three months before the suit was filed, and after being asked for payments in two letters written before the institution of proceedings, it must be concluded that defendant by implication, declined to pay, or refused its consent to comply with the demand. This implied refusal meets the requirements of the statute and is sufficient.

Plaintiff testifies that during the day he fired the skidder, and was watchman on it at nighttime. His wages for this double work, he says, were three dollars and seventy-five cents ($3.75) for firing the skidder, and two dollars and fifty cents ($2.50) to watch it, totaling a daily wage in twenty-four (24) hours of six dollars and twenty-five cents ($6.25) per day.

Counsel for defendant seems to contend that it was a physical impossibility for plaintiff to be on duty day and night, during twenty-four (24) hours. The proof shows that in the day time, plaintiff fired the skidder, and at night had his bed on the skidder where he slept. The proof shows that the work around the skidder at night was extremely light, the fact being that he was required there as a watchman, principally.

T. M. Cooper, a witness for defendant, testified that plaintiff could do the work in the day time and also at night.

It is therefore shown that plaintiff was getting a weekly wage of forty-three 75/100 dollars ($43.75) contended for by him.

Counsel for defendant further contends that plaintiff, when hurt, was doing the service of night watchman at two 50/100 dollars ($2.50) per day, and that he must get compensation based on that account. In support of this contention he refers tot subsection 3 of Section 8 of Act 85 of 1926, wherein he quotes the definition of wages to be as follows:

“The total rate of pay at which service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury.”

The proof is that for several years before the accident plaintiff had been employed as night watchman at two 50/100 dollars per night, and that prior to the injury, some few months before, he had been engaged in the additional service of firing the engine during the hours of the day. The two services, counsel says, being distinct and separate, and the plaintiff having been hurt at night, his contract for hire for the day was not then in force, and cannot serve as a basis for the total wages claimed.

Under the portion of the statute quoted by defendant, it says in ■the concluding part:

“The injured employee is recompensed under the contract of hiring in force at the time of the injury.”

Here, dual service was required of the plaintiff, but there was one contract of hiring which was in force at the time of the injury, as far as is disclosed by the record.' Plaintiff had a contract with defendant to fire during the day, and to watch the skidder at night for which he received six dollars and -twenty-five cents for every twenty-four hours of service rendered by him in this dual capacity, totaling a weekly wage of forty-three dollars and seventy-five cents, which we find to be the proper basis for his maximum compensation.

It is also contended that plaintiff did not suffer a total permanent disability. The proof is that he was hurt in the neck and spine; that he is a small farmer owning about twenty-two acres of land; that he cannot plow, cannot hoe without pain and suffering, and cannot ride horseback. It is shown that time only may relieve him of his physical disabilities, if ever he is relieved. It is needless to go with particularity over this part of the record, showing the severe injuries which plaintiff has suffered as the result of his accident. Suffice it to say that it appears clearly that he cannot do work of any reasonable character, and is laboring under a total permanent disability, which supports the judgment rendered against defendant referred to in the beginning of the opinion, and which correctly recognizes payments by defendant to the time decreed in the judgment on account of failure on the part of defendant to show the true facts, if plaintiff’s allegations of payment were incorrect.

ON APPLICATION FOR REHEARING;

MOUTON, J.

Defendant company, in its application for a rehearing, complains of errors on our part on all the issues originally presented, with the exception of our finding on the question of total disability plaintiff claims to have resulted from the injury which' he suffered. The largest portion of the brief filed in support of the application, however, deals with the exception of prematurity.

The defendant company contends now, as it did originally, that it should have been given more time for investigation as to whether it would allow or refuse the increase of, compensation asked for by plaintiff. Our opinion deals fully with the facts bearing on that question in which we reached the conclusion that the investigation would, in all probabilities, have been prolonged beyond a reasonable time, and that plaintiff could not be forced to patiently wait for the result of such an investigation to ascertain whether defendant would grant or refuse to comply with his demand. We will not repeat here what we said on this subject in our original opinion, which fully meets the contention urged in the application on this point.

Counsel also refers us to what we said of the conversation that took place between Bolton, adjuster of the insurance c.ompany, and plaintiff. In that conference, plaintiff says he asked Bolton if he was not expected to get more money, and that Bolton answered he would see about it. This conversation, in which Bolton promised to look into the matter, it must be noted, took place in the office of the insurance company in Alexandria. Counsel for defendant, in the application, refers to Bolton as a mere adjuster for the company. Counsel forgets, however, to notice the testimony of J. M. Alexander, president of the company, who said that if. such a demand had been made on Bolton, and he had failed to tell him (J. M. Alexander) about it, he would have been derilict in his duties. It is therefore impossible to escape the conclusion that Bolton occupied a position in the company, by virtue of which he was required to see the president in reference to demands of that character. The president, in referring to Bolton and other officers, said also that they were in constant communication with him about such matters.

This matter was mentioned to Bolton by plaintiff three or four months before the suit was brought, and we cannot believe that Bolton was so derilict in his duties, that he never reported what had occurred, to his associates. Even if he did not, as the president admits that it was his duty to mention the matter to him, plaintiff cannot be charged with failure to notify the company that he was claiming the increase in question. This demand so made, and the letters which preceded the filing of the suit, gave the company all the time it could legally ask to determine whether it would refuse the increase. Its action was equivalent to an implied refusal to comply with plaintiff’s demand, as we said originally. This conclusion, we find, is supported by the terms of the compensation statute on the subject of what constitutes a refusal, and whether this plea of prematurity be considered as technical or not.

Counsel renews his contention to the effect that it was physically impossible for plaintiff to fulfill the double duty of fireman during the day, and of watchman of the skidder at night. Evidently, he forgets that T. M. Cooper, his own witness, testified that plaintiff could have attended to this dual service, to which we made reference in our opinion, and also to the fact that the work around the skidder, at night, was "necessarily extremely light, and that plaintiff could easily attend to the services in the two capacities.

The proof shows that plaintiff was hurt at night while rendering services as night watchman of the skidder. Counsel refers us to several citations, but principally to Wilson vs. La. Central Lbr. Co., 3 La. App. 425, in which the Court passed on the wages that the employee was entitled to receive. These wages, counsel contends, the Court held 'to be for the particular service for which the employee was employed at the time he was injured. Counsel quotes the definition of wages from paragraph 3 of Section 8 of the compensation act as follows:

“The daily rate of pay at which services rendered by the injured employee are recompensed under the contract of hiring in force at the time of the injury.”

The proof shows that plaintiff was paid three 75/100 dollars to fire the skidder in the day time, and two 50/100 dollars to watch it at night. The statute according to the foregoing excerpt says that the daily rate of pay for the services of the employee: “Are recompensed under the contract of hiring in force at the time of the injury.”

The contract of hiring in force at the time of the injury in the instant case required plaintiff to render services in the two-fold capacity of fireman on the skidder and of watchman at night. Pie was rendering dual services, but under a contract of “hiring” in force at the time of the “injury.” This brings this case under the very terms of the statute upon which counsel for applicant is asking for an adverse ruling. According to the contention of counsel, it would seem that if these services had been separated by the noon hour, instead of by the nighttime, and plaintiff had been injured in the morning while firing the skidder, he would have been restricted to that time as the basis for his compensation, and would have been precluded or debarred from any relief for wages of service rendered during the afternoon.

We do not think, that in framing the compensation statute, the Legislature was prompted by any such legal refinements, or that we should apply the doctrine for which counsel is contending, particularly as our Courts have uniformly given a liberal construction to such statutes, and invariably in favor of the employee.

The case in the 3rd La. Appeals, cited by counsel does not pass on the question at issue herein. In that case it was shown that the employee received a wage of three 30/100 dollars per day when he was engaged in hauling timber, and two 75/100 dollars per day, when swamping. It appeared that he had been shifted from one job to the other, ■ and was injured while swamping. His “hiring” at that time, was exclusively for swamping, and the Court fixed his compensation accordingly.

In this case there was no shifting from fireman to watchman, the hiring in force at the time of the injury, was for services in two capacities as hereinabove stated, which entitles plaintiff to the increase of compensation as we originally held.

Finally, counsel for defendant contends that defendant should have been credited with the payment of eleven 37/100 dollar’s per week to June 11th, when the case was tried, instead of April 2nd, allowed by the District Judge, which was up to the filing of the petition.

Plaintiff in his testimony admitted that he was being paid at the time of the trial, twenty-two 74/100 dollars • every two weeks, being the eleven 37/100 dollars weekly payments. Credit for these payments were allowed to April 2, 1928, the date the suit was filed, which should however, have been recognized to the 11th of June, when the case was tried. This entitled defendant to payments for nine additional weeks, amounting, at eleven 37/100 dollars per week, to one hundred and two 33/100 dollars, which added to the credit allowed below of five hundred and sixty-eight 50/100 dollars, foots up a total in credits of six hundred and seventy 83/100 dollars instead of five hundred and sixty-eight 50/100 dollars decreed by the District Judge.’ This correction can be made without the necessity of granting a rehearing.

It is therefore ordered and decreed that the judgment be amended by increasing the credit allowed from five hundred and sixty-eight 50/100 dollars to the sum of six hundred and seventy 83/100 dollars, and as thus amended, the judgment be affirmed, appellee to pay the costs of this appeal; and it is further ordered and decreed that the rehearing applied for be in all other respects hereby denied and refused.


author: WEBB, J.

text:
    No. 3235
    Second Circuit
    WEBB v. V. S. & P. RY. CO. ET AL.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    (February 25, 1929. Writs of Certiorari and Review denied by Supreme Court.)
    Thatcher, Browne, Porteous & Myers; Barnett & Roberts, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This action arises from an accident in which the plaintiff sustained serious injuries alleged to have resulted from the negligence of . defendants, and' they appeal from a judgment rendered against them in solido for ten thousand dollars.

The plaintiff was the tillerman on an aerial fire truck and was thrown therefrom by the truck being thrown against a telephone pole by the driver of the truck in avoiding colliding with a train operated by the Louisiana Railway & Navigation Company over the track of the Vicksburg, Shreveport & Pacific Railway Company at a crossing in the city of Shreveport.

The fire truck was wrecked in the accident and the City of Shreveport sued the defendants for damages, which case was decided by the Supreme Court, being No. 28867, City of Shreveport versus Vicksburg, Shreveport & Pacific Ry. Co. et al., 118 So. 872, on the docket of that court, holding that the defendants were guilty of negligence and liable for the damages to the truck, and in that case the same charges of negligence on the part of the defendants were made as in the present case, and the defenses were the same, and in reviewing .the evidence presented in the cited case, as to the proof of negligence, the Court said:

“The accident occurred about 11 o’clock at night at the intersection of Market street and the railroad tracks. An ordinance by the city requires that a flagman should be kept at this corner day and night. The complaint is that the flagman was not at his post as he should have been, and the defense is that the driver of the truck drove upon the track at a high rate of speed without stopping, looking or listening, and in the face of the flagmah’s signal to stop.
“There is, as usual, much conflict of testimony. The driver of the truck testifies that, whilst returning from a fire, he approached the crossing at a very moderate rate of speed; that there was no flagman on the crossing; that he saw no moving car until just as he reached the track, when it was too late to stop or back off with his heavy ladder-truck, 50 feet in length; .that he then speeded up and swerved aside to avoid the oncoming car, which he did avoid, but in doing so the rear end of the truck struck the telephone pole and was wrecked.
“The driver is corroborated by one disinterested witness, and also by the brakeman of defendant’s train, both of whom testified that the flagman was not at his post when the train and truck approached the crossing.
“On the other hand, the flagman testifies that he was at his post, and other witnesses testify to the same effect.
' “But there is one physical fact which tends to show that the flagman was not at his post, and thus throws the (preponderance of the evidence to plaintiff, and that fact is that when the driver of plaintiff’s truck attempted to go over the crossing he was not the only one who did so; for an automobile occupied by a gentleman and lady attempted the crossing at the same time, and were well nigh caught by the approaching train. Prom which we conclude that to the occupants of thaf automobile no flagman was visible when they started to cross the track.
“Our conclusion from this and from the evidence as a whole is that the flagman was not at his post, and that this and not any recklessness on the part of the driver of the truck was the direct cause of the accident.
“Por, since the city ordinance required that a flagman be at the crossing, the driver of the truck had a right to assume, when no flagman appeared, that no train was approaching, and if thereafter he perceived a train approaching, he was required to do no more than what then seemed to him best to avoid the collision. Roby vs. Kansas City Southern Railway Co., 130 La. 893, 58 So. 696, 41 L. R. A. (N. S.) 355; Taylor vs. Vicksburg, Shreveport & Pacific Ry. Co., 123 La. 768, 49 So. 518.
“Gibbens vs. New Orleans Terminal Co., 159 La. 347, 105 So. 367, has no application here, since in that case there was no ordinance requiring a gate or flagman at the crossing involved.”

The present case was not tried at the same time as the cited case. However, the evidence offered in that case and reviewed by the Supreme Court, was introduced in the present case, and the only additional evidence on behalf of plaintiff was the testimony of two witnesses who were near the scene of the accident, which supported the contention that the flagman was not at his post, and on-behalf of defendant the testimony of an engineer and plats made by him as well as photographs of the situation showing the view which the driver of the truck, as he approached the crossing, could have had of the track in the direction from which the train approached the crossing, which we do not think, however, added anything to the defense that the driver of the truck had not exercised ordinary caution in driving upon the track which was not developed under, the evidence considered by the Supreme Court, or which could affect the finding that the defendants were guilty of negligence, and certainly if the driver of the truck was not guilty of negligence, the plaintiff here could not have been, as his place on the truck, where his duty was to hold the rear of the truck in line with, the front, was about forty feet from the place where the driver was sitting, and plaintiff’s attention was required in handling the rear of the truck, and he could not have directed the manner in which the driver operated the truck, without neglecting his own duties.

Plaintiff, as well as defendant, complains of the amount of the judgment, the former having answered the appeal, praying that the amount of the judgment be increased to twenty-five thousand dollars, as originally demanded.

The evidence established that plaintiff had sustained a fracture of the skull which caused him to be confined in a hospital for about thirty days and had resulted in an impairment of his power to read and to speak to such an extent as to incapacitate him from returning to his employment, in which he received fifteen hundred' dollars per year, and the condition not having materially improved for more than two years, it appears that his disability will in all probability be permanent.

The injury and the disability resulting therefrom was similar to that of the plaintiff in the case of Knight vs. V. S. & P. Ry. Co., 142 La. 357, 76 So. 799, and while in that case the' Supreme Court reduced the judgment from fifteen thousand dollars to seventy-five hundred dollars, the evidence did not show that Knight was earning or capable of earning the wages which plaintiff here was receiving, and considering the difference in the earning capacity of the plaintiff here and that of the plaintiff in the cited case, we cannot say that the verdict of the jury was excessive, and the judgment appealed from is affirmed.

(See amended opinion on Application for Rehearing, 10 La. App. 234.)


text:
    No. 3451
    Second Circuit
    DAYTON SCALE CO. v. CAPPS
    (January 21, 1929. Opinion and Decree.)
    A. Leonard Allen, of Winnfield, attorney for plaintiff, appellant.
    C. H. McCain, of Colfax, attorney for defendant, appellee.
   WEBB, J.

Plaintiff, Dayton Scale Company, brought this action to recover judgment • against defendant, J. W. Capps, for a balance alleged to be due on the purchase price of merchandise ordered by an employee of defendant for the account of the latter. It alleged that the merchandise had been delivered and that defendant had admitted the purchase and had made payments on the purchase price.

Defendant excepted that the petition failed to state a right or cause of action,which being referred to the merits, defendant answered, pleading, a general denial, and the cause being tried and submitted and judgment rendered rejecting plaintiff’s demands, it appeals.

The defendant did not answer the appeal, but he urges that the exception should have been sustained on the ground that plaintiff failed to allege that the employee was authorized to make the purchase; however, defendant, having failed to object to the exception being referred to the merits, abandoned his right to have the exception passed upon, and the only questions presented here are whether or not the evidence tending to show the authority of the employee to make the purchase or ratification of the purchase was properly admitted over the objection of defendant, and, if so, whether the evidence established either the authority of the employee to make the purchase or ratification of the purchase by defendant.

The petition is not by any means definite as to the authority of the employee or the ratification of the defendant; however, the order which was signed by the employee as the representative of the detendant was alleged to have been attached and made a part of the petition, and was produced before the defendant answered, and defendant could not have been surprised by the' introduction of evidence to show the authority of the employee (Mason vs. Wilson, 9 La. Ann. 178), and plaintiff having alleged that the merchandise had been delivered and the purchase acknowledged and payments made by defendant, we think that evidence was admissible tending to show either that the employee was authorized to make the purchase or ratification.

The evidence shows that the defendant was the owner of a meat market and that the order for the merchandise (equipment for the meat market) was given at the market on January 31, 1927, to a salesman of plaintiff by John Baker, an employee in the market, who signed the order as thé representative of defendant, and who at the time drew a check against the bank account of defendant for the down payment on the merchandise; that the merchandise was delivered about a week after the order was signed, and placed in use in the market, and that when the next installment fell due, about the 28th of February, 1927, John Baker drew against the bank account of defendant for the amount and remitted same to plaintiff, and that both checks were paid, and that the market with its contents, including the equipment, was destroyed by fire on March 15, -1927, and no further payments being made plaintiff brought the present suit for the balance of the price.

Defendant states that Baker was not authorized to make the purchase, and while he admits that Baker was authorized to purchase anything needed in the market and to draw checks against his account in payment of articles purchased, he testified that he did not know that Baker had drawn any checks against his account for the payments on the equipment, and that when he noticed the equipment in the market about a week after it had been delivered that he protested to Baker and ordered him to return the equipment to plaintiff, and Baker also states that defendant had protested and had ordered him to return the equipment but that he thought defendant would withdraw his objections, and did not return the merchandise, which was destroyed by fire about March 15th, or three weeks after Baker had been authorized to return same, Baker in the meantime drawing against the funds of defendant and remitting to plaintiff for the installment due about February 28th.

Where one conducts a business to which the services of a manager are essential and he does not himself act as manager, there is a representation that the person or persons performing duties of manager are the agents of the owner, with power to bind him for acts necessary in conducting the business (Lochte vs. Gale, 1 McGloin 52; also Schmidt & Zeigler vs. Sandel, 30 La. Ann. 353; Redmond & Son vs. Wood, 6 La App. 389), and while defendant denies the authority of Baker, yet having admitted that Baker was authorized to make purchases and to draw against his bank account for the price, and it not appearing that the purchase made by Baker was not necessary in conducting the business, which appears to have been under the management of Baker, we are of the opinion that Baker had authority to make the purchase and that defendant should be held liable for the balance of price.

Further, the evidence shows that defendant was advised of the purchase having been made for his account, and he was bound to repudiate the action of Baker within a reasonable time after knowledge of the purchase (Pitts vs. Shubert, 11 La. Ann. 288, 30 Am. Dec. 718; Bauman vs. Poydras, 2 Rob. 1; Guimbillot vs. Abat, 6 Rob. 284; Morgan vs. Brown, 12 La. Ann. 159; R. C. L., Principal and Agent, volume 21, page 930, No. 109), and defendant admittedly having failed to give such notice he should be held to have ratified the action of his employee, and although defendant may have intended to repudiate the action of Baker, or that he did in fact instruct Baker to repudiate the purchase, and that Baker wilfully neglected to comply with the instruction but instead made another payment on . the merchandise by cheek drawn against defendant’s funds, this did not relieve defendant of the consequence of the failure to notify plaintiff of his disavowal of the action of Baker.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiff, Dayton Scale Company, have and recover judgment against defendant, J. W. Capps, in the full sum of four hundred three dollars, with ‘five per cent per annum interest from date of judicial demand, and all costs of suit.


author: ELLIOTT, J. LECHE, J.,

text:
    No. 256
    First Circuit
    SECURITY SALES CO. OF LA., INC., v. BLACKWELL
    (March 7, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review affirmed by Supreme Court.)

      Deutsch and Kerrigan, of New Orleans, and Miller & Heintz, of Covington, attorneys for plaintiff, appellant.
    L. Y. Cooley, J.r., of ’Slidell, attorney for defendant, appellee.
    LECHE, J. Dissents for written reasons stated..
   ELLIOTT, J.

Security Sales Co. of La., Inc., alleges that it is the owner and as such entitled to the possession of a Ford automobile truck, 1926, model, motor number 13,161,042 by purchase on March 9, 1927, of the right title and interest of Poplarville Garage Co., Inc., in and to the same.

That Poplarville Garage Company, Inc., sold and delivered the machine on March 9, 1926, to Joseph Namie by a conditional sales act executed and signed at Poplar-ville in the State of Mississippi.

That the price in said act of sale was $468.00 of which $175.00 was, paid in cash at the time of the sale; the balance was to have been paid in monthly installments of $29.30 each month, commencing one month after date of sale. The title to the machine to remain in vendor until all the credit installments were paid in full.

The machine was delivered to said Namie under said contract at Poplarville in the State of Mississippi. That said Namie never paid the full purchase price due by him on said machine. That he brought it into the State of Louisiana and sold it. That Rob Blackwell has possession of it, etc.

The defendant Blackwell alleges ownership and possession by purchase made in the State of Louisiana from the Slidell Motor Company on July 26, 1926, in good faith without notice of plaintiff’s claim or that of its author. C. H. Larrabee was called in warranty by defendant.

The case was submitted to the Court on an .agreed statement of facts.

Defendant admits that the allegations of fact contained in the petition of the plaintiff are true.

Plaintiff admits that the allegations of fact contained in the answer of said Blackwell and of said Larrabee called in warranty, are true.

The question of ownership was decided in favor of the defendant and the plaintiff appealed.

We could take judicial cognizance of the fact that the common law prevails in Mississippi, to the extent not modified nor changed by statutes. The statute law of a sister state must be proved as a matter of fact. The agreement of the parties admits as a fact the averment in Article 7 of plaintiff’s petition, “that by the Laws of the State of Mississippi, which laws govern the validity and construction of the aforesaid conditional sale agreement, it having been executed in said State as aforesaid, such a conditional sales agreement as set forth hereinabove, does not convey title.”

The agreement also admits plaintiff’s further averment: “That under the terms of said conditional sales agreement, should any default be made in the payment of any installment, petitioner has the right to retake possession of said Ford truck automobile and retain the amount paid up to the time of taking as rental of said automobile.”

The admission also covers plaintiff’s averment that the sale from Poplarville Garage Company, Inc., to Joseph Namie was a Mississippi contract. That the truck in question was delivered to said Namie under said contract in Mississippi on March 9, 1926, and said Namie never paid the purchase price in full.

It follows from these admissions that the rights which said Namie acquired and had to said machine, were fixed and governed by the law of Mississippi, and that under the law of Mississippi, the purchase price not having been paid by said Namie in full, the ownership of the machine remained in Poplarvili-o Garage Co., Inc., and belonged thereto at the time the machine was brought into Louisiana.

The agreement admits that Blackwell purchased the truck from Slidell Motor Company in the State of Louisiana, on July 26, 1926. The price was $197.00, part of which was paid in cash, the balance was to he paid in installments, and same have been met until only the amount of $13.90 remains unpaid. Defendant purchased in good faith, not being aware of the claim of the Poplarville Garage Co., Inc.

The answer of C. H. Larrabee contains averments similar to those of the defendant, and is covered by the same admissions.

There is no claim by defendant and warrantor, resulting from the operation of the law, such as prescription, etc.

Therefore, the question is, did the purchaser of the machine in Louisiana, buying and paying for it in good faith and without knowledge of the title of the Poplarville Garage Co., Inc., become the owner of it as against Poplarville Garage Co!, Inc.? We hold not.

There cannot be two ownerships of the same thing at the same time. C. C. Arts. 488 and 494. Then again, a man cannot acquire the ownership of property by contract from one who is not the owner.

“Contracts are governed by the law of the place where they were entered into.” C. P. Art. 13.
“The effect of public and private written instruments are governed by the laws and usages of the place where they were passed or executed.”' C. C. Art. 10.
“No one can transfer a better title to another, than that which he himself had.” C. P. Art. 23; C. C. Arts. 822, 2015 and 2452.

The question at issue under the same legal situation was decided in Theuret vs. Jenkins, 7 Martin 318. In that case speaking of the sale of a ship, the Court said, p. 353:

“In the present case, the ship, the subject of the sale, was at sea, it was a New York ship, and the vendors and vendee residents of New York. If therefore according to the lex loci contractus, that of the domicile of both parties, the sale transfers the property without a delivery, it did so eo instanti, or not at all. In transferring it, it did not work any injury to the rights of the people of another country; it did not transfer the property of a thing within the jurisdiction of another government.”

The Court continuing on pages 356 and 357 said in conclusion:

“If the ship had been within the State at the time of the sale the rule in Norris vs. Mumford would have regulated the decision of this Court, but as at that time, she was not within the State, the sale ought not be tested by our laws. It must be by the loci contractus, against which those of no other country ought to prevail.”

See also United States Bank vs. Bank of United States, 8 Rob. 262, pp. 405 and 406; Southern Bank vs. Wood and Camplin, 14 La. Ann. 554; Fell vs. Darden, 17 La. Ann. 236; Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138; Hinton Co. vs. Rouse, C. C. A. Reports, Vol. 4. p. 471; Ruling Case Law, vol. 24, p. 452, Secs. 747 and 748; 35 L. R. A. (N. S.) 388; Cyc., Vol. 35, Subject Sales (What law governs) pp. 666 and 667.

The Slidell Motor Company did not own the truck. Therefore the contractual good faith of defendant in Louisiana, in buying from it, could not divest the vested ownership of Poplarville Garage Company, Inc., and plaintiff holds its rights.

The judgment appealed from is erroneous and must be reversed and judgment rendered in favor of plaintiff as prayed for.

The judgment appealed from is therefore annulled, avoided and reversed and it is now ordered, adjudged and decreed that the sequestration made by the Security Sales Co. of La., Inc., of Ford automobile truck, 1926 model, motor number 13,161,-042, be maintained.

It is further decreed that said machine belongs to Security Sales Co. of La., Inc., and that same be delivered to it, and that said Blackwell pay the cost in both courts.

It is further ordered, adjudged and decreed that Rob Blackwell, defendant, have judgment against C. H. Larrabee in warranty herein, for one hundred and eighty-three dollars and ten cents, and also for all costs that the said Blackwell may be called upon to pay herein.

LECHE, J.,

dissenting.

The plaintiff as holder of notes amounting to $146.50, brought the present suit against defendant, coupling therewith a sequestration, and praying to be put in possession of a Ford truck. There is no moneyed demand against defendant, nolis there any demand for the ownership of the truck; the prayer of the petition is for the possession of the truck and no other relief is expressly demanded or prayed for.

The facts as admitted on the trial of the case are that the Poplarville Garage Company of Mississippi, entered into a conditional sale contract within the State of Mississippi, with one Joseph Namie, also of that State whereby the garage company sold to Namie, on the condition that the ownership would remain in the vendor until payment should be made in full, one Ford truck of the value of $468.00. That Namie had paid up to the institution of this suit, all of the purchase price except $146.50. That this contract was entered into on March 9, 1926, that Namie removed the truck into the State of Louisiana, that he sold it, that it passed into the hands and under control of several persons, that the last purchaser was defendant who acquired it as an innocent purchaser, and that it was sequestered in the hands of defendant in the present suit filed on April 25, 1927, in the Parish of St. Tammany.

Plaintiff claims as assignee of the contract of March 9, 1926, as appears by an endorsement signed by the Poplarville Gar.age Company, written on the back of said conditional sale contract.

Defendant acquired the truck from Slidell Motor Company, a concern located in Slidell, and engaged in the automobile business. The truck had already gone into the ordinary channels of trade and commerce. See C. C. Art. 3507.

Plaintiff relies upon the case of Overland Texarkana Company vs. Bickley, as authority to sustain his demand.

The facts in the cited case show fraud, deceit and misrepresentation on the part of the purchaser; the auto had been stolen or obtained under false pretense and there liad been due diligence on the part of the seller. Besides this, the Act 193, p. 321 of 1920, of this State was in force and effect at the time the purchaser swindled the Overland Texarkana Company and Bickley, while at the present time that Act is no longer in force, having been repealed by Act 92, p. 172 of 1922.

If the majority opinion in this case prevails, then no one is safe in buying a movable in this State, as the seller’s title may in the remote past, depend upon a conditional sale made in some other State.

I therefore dissent.