author: MOÜTON, J. ELLIOT, J.

text:
    No. -
    First Circuit Appeal
    Consolidated Cases
    B. ZENERO AND BETTY ZENERO v. C. A. PRESSEY C. V. HOCUM v. C. A. PRESSEY SAM HORROW v. C. A. PRESSEY NORFOLK TENT AND AWNING COMPANY AND M. B. PRESSEY, Intervenors
    (December 2, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Garnishment — Par. 21, 22.
    Where money is on deposit in a bank in the name of an organization subject to check by A, the executive officer of the organization, and B, a suit filed making B the defendant and attachment issued thereunder, making A as executive officer of the organization answer the interrogatories as garnishee; the garnishment is null and void, because the money was in the possession of the bank which made it necessary for the bank to be served with interrogatories.
    (Code of Practice Articles 246 and 264.)
    2. Louisiana Digest — Garnishment — Par. 60.
    Where money is on deposit in a bank in the name of an organization subject to check by A, the executive officer of the organization, and B, a suit filed making B. the defendant and attachment issued thereunder making A as executive officer of the organization answer the interrogatories as garnishee; the garnishment is null and void, because garnishees can not be bound by the answers of their agents, unless the latter are authorized to that effect. In this case there is no proof that A, the executive officer of the organization, had any authority to bind the organization by his answers to the interrogatories.
    3. Louisiana Digest — Ownership—Par. 7, 9.
    An intervenor in an attachment and garnishment proceeding can not be declared the owner of funds deposited in a bank subject to a check by A, executive officer of an organization, and B, where the intervenor claims the debt due by B for certain articles which were leased to him.
    Appeal from’’ the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    •'This is a consolidation of three suits to collect money due on open account coupled with attachment and garnishment, proceedings. There was' also an intervention.
    There was judgment sustaining the garnishment of Sam Harrow but dismissing the others. There was also judgment dismissing the intervention. Plaintiffs Hoeum and Zenero and’the intervenor appealed.
    Judgment affirmed.
   CONSOLIDATED.

MOÜTON, J.

Feb. 28th, 1924, B. and Betty Zenero filed suit against C. A. Pressey, a non-resident of the State for $484.00 and asked for • the • issuance- o4--a writ of attachment. In their petition Grotto Circus, a voluntary- associatipp. of Baton Rouge, was indebted to C. A. Pressey» defendant, or had property in its possession or under its control belonging to said Pressey; that they desired to have the Shrine Club and Grotto Circus made Garnishees and prayed for citation on the Shrine Club and Circus with A. J. Thomas, executive officer, and that they be ordered to answer the interrogatories annexed to their petition.

A suit for $1,647.33, was filed on the same date against C. A. Pressey, defendant, by E. Y. Hocum, in • which , upon similar allegations as those made in' the case of B. and Betty Zenero, he asks for the issuance of an attachment and garnishment process against the Shrine Club and Grotto Circus, a voluntary' association, and that with A. J. Thomas, executive officer thereof, they be ordered to answer the interrogatories annexed' to his demand.

Later, March 4th, 1924, Sam Horr'ow filed suit against Pressey for $2,200.00, asking for the issuance of attachment and garnishment process. In his petition Sorrow alleged that this special association, the Shrine-Grotto Circus and the Abmar Grotto Club of Baton Rouge, had through their joint executive committee, composed of O. O. Ogden, W. G. Gay, A. C. Mudinger, John G. Adams, W. O. Blair and A. J. Thomas, all residents of Baton Rouge, money rights or other property in their possession belonging to Pressey, representing his share of the receipts derived from a certain carnival enterprise. Horrow asked under the attachment that the Shrine-Grotto Circus, through its joint executive committee, and the individual members thereof, in their individual, and official capacities, be made garnishees,, and required to answer interrogatories annexed to his petition. Service of the petition with accompanying interrogatories was made on the Shrine-Grotto circus and Abmar Grotto of Baton Rouge, through A. J. Thomas, its executive officer, and also on the members composing this committtee, hereinabové named, individually, and in their official capacity as members thereof.

In the suit of B. Zenero and Betty Zenero, A.. J. Thomas in his capacity of executive officer of the Shrine Club and Grotto Circus, filed his answer to the interrogatories therein propounded, saying that under the contract of the Shrine Club with Pressey, defendant, all the expenses incurred .were to be paid out of the gross receipts from the circus, and the balance remaining after such payments representing the net profit, if any, should be divided, fifty per cent for defendant, and fifty for the Shrine Club; that under the contract all monies received from all sources connected with the circus were deposited in a local bank and checked out on the joint signatures of Pressey, defendant, and A. J. Thomas, respondent,- acting under the direction of the Shrine Club and Grotto —that at the time of the service of the interrogatories on respondent the circus was still in operation, all expenses had not been paid, the books had not been audited, so that it was impossible for respondent to say whether or not he had any funds or property belonging to defendant in writ in his custody at that time that after the circus had ended, and the books were audited, it was found that the net profit realized amounted to the sum of $1,555:78; defendant being entitled therein to $767.80, less $206.00 for advances made to him, leaving in his favor $561.89 which respondent was holding subject to the further orders of the court — that respondent had also in his possession $500.00 for rental due the Norfolk Tent and Awning Company arid which he was holding subject to the orders of the court. A similar answer was filed by A. J. Thomas, in his said capacity, to the interrogatories propounded to' him, in the suits of E. Y. Hocum, the Zeneros and Sam Horrow against N. C. Pressey, hereinabove referred to.

Interventions or third oppositions' were also filed by M. B. Pressey, and the Norfolk Tent and Awning Company which were dismissed on exceptions of no cause of action. The Tent and Awning Company has appealed, M. B. Pressey has not, and is therefore eliminated from this obligation.

It the suit B. Zenero and Betty Zenero, the court in confirmation of a default rendered judgment in favor of plaintiffs and against C. A. Pressey, defendant, for $484.00, the amount claimed in their demand; it was in the judgment further decreed that the writ of attachment therein issued be maintained; and that the garnishment, based therein, be also maintained. A similar judgment was rendered in favor of E. V. Hocum vs. A. C. Pressey for the sum of ' $1,647.33, claimed against him by plaintiff, with maintenance of the writ of attachment and garnishment process. Sam Horrow also received judgment for $2,200.00, claimed by him on his main demand against C. A. Pressey defendant, in which it was also decreed that the writ of attachment obtained by him therein be maintained and enforced against defendant.

April 4, 1924, after the rendition of the judgments aforesaid, B. Zenero and Betty Zenero and E. V. Hocum upon moving and suggesting to the court, through their attorney, that the answer of the Shrine Club and Grotto Circus field March 17, 1924, hereinabove referred' to, was evasive, and legally incorrect the court ordered the Shrine Club and Grotto Circus to show cause on the 9th of April, 1924, why these answers to said interrogatories should not be set aside and why judgment should not be rendered against it in the amount it had in its hands, to wit, $1,161.89.

It' will be' noticed that this order of the court which was based on the motion of Counsel for plaintiffs in two suits mentioned, was to have the previous answers nullified, and that judgment be rendered against the Shrine Club and Grotto Circus. The motion and the order thus granted by" the court show clearly that according to the averments of the plaintiff above named, the judgments on the main demands heretofore mentioned were directed exclusively against A. C. Pressey, defendant, and had no connection whatsoever with the Shrine Club and Grotto Circus, and its executive officer, A. J. Thomas as garnishees. The judgment rendered in favor of Sam Horrow on its main demand against C. A. Pressey must also be similarly regarded.

It will be observed that the court in compliance with the motion of counsel to have the original answers of the Shrine-Grotto Club annulled ordered answers thereto be made on April 9, 1924. This order was entered on April 4th, 1924. Later, on April 7, the court on the application of Sam Horrow ordered', all the parties to the litigation, including intervenor, the Norfolk Tent and Awning Company, to answer a rule granted to said Sam Horrow in which he claimed preference and priority over the money garnished in the case. On March 31, 1924, prior to 'the issuance of this rule, by supplemental petition, Sam Horrow claiming that the Union Bank and Trust Company of Baton Rouge was indebted to defendant, Pressey, or had property, money or effects in its possession, as depository or otherwise, belonging to said defendant obtained the service of interrogatories on .said bank in accordance with the claim of Horrow as above stated. In answer to these interrogatories the bank said it had at the time of the' service of the interrogatories and had when it filed its answer, in deposit, the sum of $1,074.39, in the name of Shrine-Grotto Circus subject to check by A. J. Thomas and C. A. Pressey. The members of the committee of the Shrine and Grotto Circus in answer to the rule filed by Sam Horrow on the 7th of April, said that the two amounts $561.89 and $500.00, which together make a total of $1,061.89, was at the time of the service of the interrogatories accompanying said rule, on deposit in the Union Bank and Trust Company of Baton Rouge, in the name of the Shrine and Grotto Circus, subject to check by A. J. Thomas, acting for respondents, and C. A. Pressey, defendant in the writ. The respondents state that the $561.89 represented the share of C. A. Pressey of the net profits which were earned in the Circus enterprise under the contract of the Shrine Club and Grotto with Pressey. They further declared that the other sum of $500.00 was due as rent and for which they had given Pressey a check, but being apprized that this sum was subject to garnishment in the other suits, they, in consequence, notified the drawee bank to stop payment.

The contract between the Shrine-Grotto and Pressey, annexed to the pleadings in the suit of Hocum vs. Pressey, shows that after payment of all expenses the net profits were to be divided equally between these parties; also that the rent for tent was to be deducted from the gross receipts; and that Pressey guaranteed the Shrine-Grotto against any loss in any way. The terms of this contract, the answers of A. J. Thomas to the interrogatories- propounded by Hocum, by B. and Betty Zenero, and the answers of the bank, make it clear that the money deposited with the bank wa.s the property of C. A. Pressey. It appears clearly from this contract, and answers, that the Shrine-Grotto had'' no claim to the funds so deposited, nor had the bank.

Article C. P. 264, says that a creditor is [ entitled to a garnishment against a third person if he has in his possession property ' belonging to his debtor, or that he is indebted to such debtor. Clearly, the money here in possession of the bank, a third party, was the property of C. A. Pressey, the debtor of these common creditors, plaintiffs in these suits. The bank had actual possession of that money, and was a necessáry party to this suit.

Counsel for Hocum and the Zeneros claim that the Shrine-Grotto had possession thereof. It is certain from the answers to the interrogatories, and ' other evidence that this money was not under the exclusive control and possession of the Shrine-Grotto —or of *A. J. Thomas, its executive officer. This clearly appears from the answér of Thomas, himself, to the interrogatories in which he says that all checks against the deposit with the bank had to be signed by Thomas as the representative of the Grotto Club, and by C. A. Pressey, defendant. At most, Thomas, for his association, had only joint control with Pressey of the funds so deposited in bank. Such being the situation. the interrogatories which were served by Hocum and the Zeneros on Thomas or the Grotto Company, alone were not sufficient in law to affect a garnish-’ ment of the funds — even taking the view that their possession was joint with that of Pressey. The bank was an essential party, but no garnishment process was demanded against it by Hocum and the Zeneros. The bank was brought in as a garnishee by the proceedings instituted by Sam Horrow whose process meets with the requirements of the Code of Practice. Counsel for Hocum and the Zeneros contend that the judgment rendered in favor of his clients maintained the garnishment process which had been issued in their two suits; that the garnishment proceedings inaugurated by Sam Horrow were subsequent in date thereto, that their judgment so obtained could not thus be attacked collaterally for the benefit of Horrow.

These judgments so obtained on March 24, 1924, before mentioned, had reference exclusively to the main demands of Hocum and the Zeneros herein filed against C. A. Pressey, defendant, were not directed against any one as garnishee, as appears from the record, for the reasons herinabove given. The garnishee or garnishees not being affected by these judgments, the question of a collateral attack does not arise. In this case, as before stated, service of the interrogatories, was, in accordance with the demand of Hocum and the Zeneros, served on the Shrine Club and Grotto Circus, through A. J. Thomas, executive officer, the said Association is a voluntary association, as is shown by the pleadings. Personal service of interrogatories must be made on the garnishee, otherwise no seizure will bind money, property, rights or claims in his hands. C. P. 246. This rule is inexorable unless modified or changed by statute. O’Connor vs. Jones, 129 La. 411, 56 South. 350. Attorney for Hocum and the Zeneros contends that service of interrogatories, if made on the managing official of a voluntary association is sufficient to bind it as a garnishee under provisions of Act 170, 1918. This act declares that after its passage it shall be lawful to sue any voluntary association on an obligation incurred for its benefits, in its name, and that service on the managing official .of such association would be legal. It is obvious that there was no suit filed here against this association on any obligation incurred for its benefit or otherwise. On the contrary it is sought herein to make it respond for the obligations of others in which it has no interest or concern. Act 170 of 1918 does not in- any way affect the rule requiring personal service under Article 246, C. P. has no reference to garnishment proceedings and has no application to the issues herein involved.

Counsel for Hocum and the Zeneros contends also that the service made on A. J. Thomas, executive officer, was legal under Act 179, 1918. Section 2 of that Act directs the method of serving garnishment process upon a party in his own name or in his representative capacity. The provisions of this section has reference to members of partnerships, to the executive officer of domestic corporations, public boards or to the designated agents of foreign corporations. A. J. Thomas, the executive officer, of the Shrine and Grotto Club of Baton Rouge does not come within the purview of the section of the statutes above referred to. He was the mere agent of the' Shrine and Grotto Club. It is well settled that garnishees can not be bound by the answers of their agents, unless the latter are authorized to that effect, Lewis vs. Franks, 18 La. Ann. 561. It nowhere appears that A. J. Thomas, as executive officer of. the club, was clothed with any authority. Hence the Shrine-Grotto Club or its members could not be bound by the answers to the interrogatories.

Counsel for Hocum and the Zeneros says also that Act 179 of 1918, permits service of process on any “Executor, Administrator, Tutor, Curator, Liquidator, Receiver, Agent or other representative capacity”.» This provision of the Act is found in Section .1. No. 2 — and is not intended to cover the .requirements for the service of garnishment process which is specially provided for in section two of the statute hereinbefore mentioned. This section designates those upon whom such service may be made, which, for the reasons heretofore given, does not include the executive officer of a voluntary association.

INTERVENTION.

The Norfolk Tent and Awning Company, intervenor, claims in its' petition to have leased certain articles therein described, to C. A. Pressey, defendant, for .the sum of $500.00, payable weekly; that- $500.00 due for the rental of this property had been seized under attachment proceedings in the suits of the plaintiffs herein. Intervenor asserting its ownership of, these unds, prayed to be decreed the owner thereof, for the annulment of the attachment, and for the restoration of these $500.00 to its possession.

This intervention was dismissed on an exception of no cause of action: .We are not, however, restricted in the examination of the appeal from the intervention to the facts admitted under the exception, as other facts were proved and others appear from the pleading without any objections made thereto. The record shows that the tent for which intervenor claims its rental under its contract with C. A. Pressey, was rented by Pressey to the Shrine and Grotto Club of Baton Rouge under a written agreement. It is shown that the $500.00 under attachment claimed by intervenor had been deposited in bank' by the Shrine Club for Pressey for which the Club had given Pressey a check, but which was not collected by him, the bank having been notified to stop payment because of the garnishing of the funds in these proceedings. These funds had been deposited to the credit of Pressey by virtue of his contract with the Shrine Club, were his property when attached, and did not belong to intervenor.

The contractual relations which existed between intervenor and Pressey could not affect these funds deposited for Pressey by the Shrine Club in compliance with its agreement with him. There was no privity of contract between the Shrine Club and intervenor, which has no title to the $500.00 funds. claimed in its intervention. It was properly dismissed.

The judgments appealed from in these consolidated, cases are therefore affirmed.

ELLIOT, J.

I agree that the Intervenor, Norkfolk Tent and Awning Company, cannot prevail but dissent from the opinion of the majority that Samuel Horrow has preference over E. V. Hocum and B. B. Zenero. The parties E. V. Hocum and B. B. Zenero made the first attachment by serving writ of garnishment on Shrine Club and Grotto Circus represented by A. J. Thomas and C. A. Pressey the common debtor and the attachment of each was sustained. In my opinion Shrine Club and Grotto Circus represented by A. J. Thomas and C. A. Pressey had joint possession of the money in the bank. I think the bank was a mere holder and custodian for Shrine Club and Grotto Circus represented by Thomas and for Pressey. ■ The bank was therefore not a necessary party to the attachment in order to effectuate a seizure of the money; the service on Shrine Club and Grotto Circus represented by Thomas and service on Pressey was sufficient.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. --
    First Circuit Appeal
    C. H. WELCH v. N. O. T. & M. RY. CO.
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. .84.
    Where a mule walks on to a railroad track sixty feet in front of a train and is killed although the engineer did all that was possible to avoid the accident; the railroad is not liable.
    (See Act 70 of 1886 and Civil Code, Article 2315. Editor’s note.)
    Appeal from the Parish of Acadia, Hon. Wm. .Campbell, Judge.
    This is a suit for the recovery of the value of a mule. - There was judgment for plaintiff and .defendant appealed.
    Judgment affirmed.
    J. D. Canan, of Crowley, attorney for plaintiff, and appellee.
    Chappuis & Chappuis, of Crowley, attorneys for defendant and appellant.
   LECHE, J.

A mule belonging to plaintiff was killed about 9:30 o’clock the evening of April 26, 1923, by a teain of the defendant company and the present suit is to recover its value.

Clenen the engineer, first saw the mule attempting to cross the track from the left, about ten feet ahead of his engine. He used all the means at his command to avoid the accident, but if was too late. The mule was struck by the pilot of the engine and thrown off the track.

Allen, locomotive fireman, also saw the mule after it had emerged from the tall weeds on the left side of the track. It seemed to hesitate, then it suddenly started across the track about 15 feet ahead of the engine. He warned the engineer, who occupies the right side of the cab, but it was too late.

King, conductor of the train, was riding on the pilot of the engine. The mule came from the bushes. He only saw it when within six feet of the pilot. He was in a dangerous position and barely had time to get his feet out of the way before the pilot struck the mule.

Judd, assistant superintendent of the railroad, was riding in the cab, on the left of the fireman’s side. He does not think it was sixty feet away when he first saw the mule coming from the left side of the track. The engineer was at once informed, but it was then too late to avoid the collision.

All these witnesses who were the only eye witnesses to the accident, testify that the train was running about twelve miles an hour and that the accident was unavoidable.

It is true that .they, were all employees of the ■ defendant company, but that fact alone is not sufficient to discredit their testimony. There is no reason in law or equity why we should presume or assume without any apparent reason beyond their admission that they are employees of defendant, that these witnesses misrepresented or concealed the facts and that they perjured themselves.

"We believe the defendant has purged itself of the imputation of negligence and that plaintiff’s demand should be refused.

For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand is rejected at his costs.


text:
    No. -
    First Circuit Appeal
    SUCCESSION OF OSCAR JAMES
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 535.
    "Where appellants have not appeared, they are presumed to have. abandoned their appeal.
    (Code of Practice, Art. 594, Editor’s note.)
    . Appeal from the Parish of Acadia, Hon. W. W. Bailey, Judge.
    Appeal dismissed.
    W. J. Carmouche, of Crowley, attorney for plaintiff and appellant.
    Percy T. Ogden, of Crowley, attorney for defendant and appellee.
   LECHE, J.

This appeal was taken by the mother, and by the brothers and sisters of the deceased from a judgment dismissing their opposition to the application of the widow of Oscar James, who prays that the Crowley Trust & Savings Bank be appointed administrator of her deceased husband’s succession.

It appears that while the present appeal which, under Art. C. P. 1059, is not suspensive, was pending in this court, the succession was administered an account was rendered by the administrator, the account was homologated, the assets were distributed and the administrator discharged without opposition or protest on the part of the appellants. Wherefore appellee now moves to dismiss the appeal, on the ground that the succession is closed.

Whether the provisional effect of that judgment, the execution of which was not suspended under Art. 1059, C. P., extended so far as to authorize the administrator to carry on his gestión to its completion and to close the succession, is a question upon which we express no opinion. Appellants have not appeared in this court either by oral argument or by brief and we assume that they have abandoned their appeal.

Appeal dismissed.


text:
    No. -
    First Circuit Appeal
    ROBERT PRATHER v. A. MARX & SON
    (Dec. 30, 1924, Opinion and Decree.)
    (March 3, 1925, Rehearing Granted.)
    (May 15, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 215, 252.
    Parol evidence is not admissible to create though it is admissible under proper allegations to destroy a title.
    ""Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit to recover rent. The defense is that plaintiff’s title is a sham. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff and appellee.
    Gilbert L." Dupre, of Opelousas, attorney for defendant and appellant.
   LECHE, J.

Plaintiff in this action seeks to recover rent for the use and occupancy of a .building situated near tbe town or village Qf;¡ Washington in the parish of St. Landry,. frqm July 24, . 1920, to October 24, 19.23, at the rate of $25.00 per month. Defendants being residents of the City of New Orleans, he only prays for a judgment.! in ;rem.

Defendants do not dispute that they entered into a contract of lease, but in their answer, they allege in substance - that on March 18, 1920, the property was ostensibly transferred from their lessors, Dupre & Mou'ret, to plaintiff, when in reality the acquisition then made by plaintiff, was for J. Franklin Schell. That thereafter plaintiff conveyed said property to the real purchaser, J. Franklin Schell under date of March 27, 1920, and that Schell had agreed to let defendants have the use of said building free of rent up to July 1, 1922. That plaintiff’s title is a simulation and a sham and that he is therefore not entitled to the rent claimed in this suit.

The judgment appealed was in favor of plaintiff, as prayed for.

The lease under which defendants occupied the property was from Dupre & Mou■ret, who were owners at that time, and began on July 24, 1919. It was stipulated that in part consideration of a sale from defendants, they would be absolved from the payments of rent up to July 24, 1920, when the rent would be $25.00 per month. Prather bought the property on March 18, 1920, affected with the lease in favor of defendants and his claim for rent is based upon the contract as entered into between defendants, as lessees, and Dupre & Mouret, as lessors. Defendants remained in the occupancy of the property and their only defense against plaintiff is as before recited:

1. That plaintiff’s title is simulated and that he was merely an interposed party for J. Franklin Schell, the real purchaser, and

2. That plaintiff sold to Schell on March 27, 1920, and that Schell has released defendants from the payment of rent. Pretermitting the utter inconsistency between these two defendants, it appears that on the trial of the case, defendants offered parol evidence to show that the acquisition by plaintiff on March 18, 1920, was a sham and was for the benefit of Schell. That evidence should not have been admitted and plaintiff’s objection should have been maintained. Parol evidence is not admissible to create, though it is admissible under proper allegations, to destroy a title. This doctrine was lately affirmed in Walton vs. Walton, 156 La.' 611, 100 South. 786, on rehearing, where many authorities are cited.

The alleged sale from plaintiff to Schell is said to have been evidenced by an authentic act of sale before Gus. E. Dupre, Notary Public, on March' 27, 1920. The act was not offered or produced in evidence. An attempt was made to prove its loss, by hearsay testimony, but clearly such testimony was inadmissible and plaintiff’s objection thereto, should have been sustained. The testimony offered by defendants over the objection of plaintiff, to prove the contents of the alleged lost act of sale, and which we may say fails to show a completed sale, was therefore also inadmissible under the circumstances.

We believe that plaintiff has made out his case, that defendants have failed to establish a legal defense, and that the judgment of the District Court should be •affirmed and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    BREAUX & BONIN v. MELCHIOR CAMPBELL, ET AL.
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 218.
    The burden is on the defendant maker, • who pleads lack of consideration for promissory notes sued on, to prove this lack of consideration.
    2. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on question of fact, being manifestly correct is affirmed.
    Appeal from the Parish of Vermilion, Hon. W. W. Bailey, Judge.
    This is a suit to recover on a promissory note. The defense is that the plows were not those which plaintiff bound himself tó furnish. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John Nugier, of Abbeville, attorney for plaintiff and appellee.
    M. T. Gordy, Kitchell & Boudreaux, of Abbeville, attorneys for defendant and appellant.
   LECHE, J.

This suit is based upon a note of $1500.00, dated January 6, 1921, due 60 days after date, and reduced by a partial payment of $1200.00 made March 15, 1921.

The defense is that the note was originally issued in representation of .part of the purchase price of a tractor and four plows, that the plows were not such as plaintiffs had bound themselves to furnish, that though frequently requested to change said plows in accordance with their agreement, plaintiffs have failed to do so, and, alleging that plaintiffs have already been overpaid by some seventy-eight dollars for the price of the tractori' defendant then prays in the alternatives ’ that he recover judgment against plaintiffs for' seventy-eight dollars, or, that plaintiff’s suit be dismissed as premature, for the reason that plaintiffs cán have no right of action until- ’they have delivered the proper plows, in accordance with their agreement.

The District Court rendered judgment in favor .of plaintiff as prayed for, and defendants have appealed. .

Plaintiffs ar.e doing business in the Parish of Vermilion and the defendant bought from them or through their • intervention, a Twin City tractor and .four plows in consideration of some twenty-eight hundred and twenty-five dollars. The agency .for the sale of this machinery and accompanying implements, is located at Crowley in the parish of Arcadia. The written order for the purchase of the tractor was drawn up and signed in Crowley. It was • not produced on the trial of the case, :but it appears that a member of the plaintiffs’ firm as well as. the defendant were- present at the time the order was given. The evidence does not show the date of the order, whether it included the plows, nor by whom it was signed.

Plaintiffs on the other hand, claim that they sold the tractor to defendant. This is not denied by defendant. But they also claim that the plows were ordered by defendant directly from the agency in Crowley and that they made no representations or promise to defendant in regard to the same. They further claim that defendant has made a separate payment for the plows, the price of the same, $400.00, not being included in the note given. They further claim that they are not responsible for any promises made to defendant by the Crowley agency in regard to the plows.

All the surrounding circumstances seem to confirm the position of plaintiffs in regard to this transaction, and the recon-' veritiOnal deiriand 'of' defendant shows that he paid more than the value of the tractor, the cost price of which is admitted to have been $2425.00. In other words defendant has paid $2525.00 or $100.00 more than the cost of the tractor. It was encumbent upon defendant to show with certainty the failure of consideration which he pleads in his answer and this he has failed to show.

From an equitable standpoint, defendant loses nothing, for the price of the plows which he claims should have been delivered to him, is lower than the price of the plows with which he was actually provided and he is the gainer for the difference in their values.

We believe the judgment of the District Court is .sustained by the law and the evidence and should be affirmed and,

It is so ordered.


text:
    No. -
    First Circuit Appeal
    DUDLEY L. GUILBEAU v. MARGET BROTHERS COMPANY
    (December 30, 1924, Opinion and Decree)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Attorneys—Par. 63.
    When an attorney-at-law is consulted about a claim, and subsequently the claim, represented by a mortgage note in which the mortgagor has agreed to pay the fees of the attorney, if the “nóte” is sued upon, or placed in the hands of an attorney or collector for collection, is brought to the attorney for either the purpose of bringing suit upon or collecting the note and nothing is said by claimant to the attorney in regard to his fee, the agreement is necessarily implied that the attorney will he paid the fee stipulated in the note.
    2. "Louisiana ' Digest— Estoppel — Par; 26.
    Where attorney obtained judgment on a promissory nóte containing a clause granting 10% for attorney’s fees, and sends a bill to his client for $25.00, he is not thereby estopped from obtaining his 10% if the note is collected, because defendant is not misled or has not lost anything by paying the $25.00 bill.
    Appeal from. the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    This is a suit for attorney’s fee for suit and collection of a note. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    G. L. Dupre, of Opelousas, attorney for plaintiff and appellee.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant and appellant.
   LECHE, J.

The case is so well stated and the reasons for judgment so convincing, as written by^the judge ad hoc who presided over the trial in the District Court, that we here insert them, viz.:

Plaintiff, an attorney-at-law, brings this suit to recover from defendants the sum of seven hundred and thirty-nine dollars and thirty-nine cents alleged to be due him as attorney’s fees under a judgment obtained by him against one Armand L. Dejean, a resident of the city of Opelousas.

The undisputed facts are that defendants were the holders of a certain mortgage note of Dejean’s, and that they were trying to collect the same; that Dejean was temporarily without funds and that the property upon which the mortgage rested was also burdened with a mortgage higher in rank than the one held by defendants, and in such amount as rendered the second mortgage practically valueless.

Defendant’s representatives called on plaintiff, who had several months previous advised them as to the status of defendant company’s claim, and told Mm that they wished to- close up the Dejean matter. Dejean was engaged in the cotton-buying business in this territory. Plaintiff suggested, to them that if they released their practically valueless mortgage and granted a stay of execution of the judgment. to be obtained on the note to some date in the approaching cotton-buying season, Dejean might confess judgment. This suggestion appealed to them. They left plaintiff’s office to see Dejean and returned a short while thereafter and instructed plaintiff to proceed with a suit on the lines suggested by him. Plaintiff brought the suit, record of which forms part of his petition and is in evidence here.

The petition in the suit against- Dejean as well as the confession of judgment and the judgment itself were read to defendant company’s representatives. One of them, Mr. Durio, signed as a witness to the confession of judgment. The stipulation of the note providing for 10% attorney’s fees on principal and interest unpaid if sued upon or placed in the hands of an attorney or collector for collection was embodied in the petition, the confession and in the judgment. The stay of execution was fixed at November 15, 1923.

Nothing was said about the attorney’s fees. Plaintiff rendered a preliminary bill for twenty-five 'dollars, which was paid. A few days before November 15, 1923, plaintiff called on defendant .company’s local representative, Mr. Durio, and suggested to him as the stay of execution was about to expire that he was ready to take any steps as might be necessary to collect the judgment against Dejean. He was informed that the same had been collected, and upon requesting the payment of the attorney’s fees was advised that none were due him. He rendered a bill covering the attorney’s fees, less a credit of twenty-five and 00-100 dollars, which defendant company refused to pay.

Defendant’s first defense is that plaintiff is without any cause or right of action for the reason that there is no allegation in the petition to the effect that defendants had either expressly or impliedly promised to pay Mm the sum of 10% of the amount to be collected as attorney’s fees.

This proposition is untenable. The terms of plaintiff’s employment were fully set in the petition by reference to the suit on the note against Dejean, which was made part of plaintiff’s petition and offered in evidence in the case, and which said suit contained a prayer for attorney’s fees, provision for which was also made in the judgment, the note and the confession, all to the knowledge of defendants.

Defendant’s defense of the merits is that plaintiff has been paid the sum of twenty-five dollars and that he is entitled to no more and that defendants and Dejean had made an agreement that he was not to pay the entire amount of attorney’s fees stipulated.

It is inconceivable that plaintiff, whose reputation as a lawyer and a citizen is without blemish, would have undertaken the collection of the note aforesaid for the mere pittance of twenty-five dollars; his bill for this amount w’as simply in the nature of a retainer in case the judgment was never paid. It is customary for attorneys to make such nominal charges upon obtaining judgments, but it would be an insult to the profession to hold that such a nominal charge precludes an attorney from recovering his fee in case the judgment was paid. If the judgment had never been paid then plaintiff would have never attempted to hold defendants, as he knew that his fee was contingent; that it depended on the collection of the judgment; and defendants knew or should have known that when, the judgment was collected plaintiff, ipso facto, became entitled to the attorney’s fees.

Whatever agreement defendants made with Dejean as to the fee to be paid the attorney can have no bearing on the case for the simple reason that Guilbeau was not a party to such an agreement and knew nothing at all about it. Safford vs. Carrol, 23 An. 28. One of defendant’s witnesses, Mr. Durio, testified that Guilbeau had told Mr. McConnel, also a representative of defendant company, that his fee would be “reasonable and moderate,” but in this Durio is not corroborated by McConnel, who, on the contrary, positively testified that nothing at all was said about attorney’s fees; and this is conclusively shown by the rest of the testimony, and the court thinks that plaintiff is clearly entitled to the amount claimed by him less the sum of twenty-five dollars paid as aforesaid.

For these reasons and because the law and the evidence are in favor thereof, it is ordered, adjudged and decreed that there be judgment herein in favor of Dudley L. Guilbeau and against the defendant Marget Brothers Company, in the full sum of seven hundred and thirty-nine dollars and thirty-nine cents ($739.39), with legal interest thereon from judicial demand Until paid, less the sum of twenty-five dollars heretofore paid by defendant company. And it is further ordered, adjudged and decreed that defendant company be and it is. hereby condemned to pay all costs of this suit.

Judgment rendered, read and signed in open court this 19th day of June, 1924.

When an attorney-at-law is consulted about a claim, and subsequently the claim, represented by a- mortgage note in which the mortgagor has agreed to pay the fees of the attorney, if the note “is sued upon, or placed in the hands of an attorney or collector for collection,” is brought to the attorney for either the purpose of bringing suit upon or collecting the note, and. nothing is said by the claimant to the attorney in r.egard to his fee, the agreement is necessarily implied that the attorney will be paid the fee stipulated in the note. It is unusual and unnecessary that there should be a distinct and expressed agreement that the attorney should receive as his honorarium the fee which the mortgagor has obligated himself to pay to. the holder of the note. Indeed the converse of the proposition is equally true that whenever the holder 'of a note wishes to vary or change the terms of the stipulation by paying less, or the attorney will not consent to accept the stipulation as written because the amount- is insufficient, it is absolutely necessary that a special and express agreement be entered into by the parties. So that when defendant brought the note to plaintiff and made no mention of attorney’s fees, plaintiff was fully justified in assuming that,he was employed at the compensation fixed in the note. Such a condition on entering into the contract of employment is so evidently implied that to have expressly mentioned it would have been mere surplusage. The surrounding ciroumstanees speak louder than ■ words.

We do not believe there can be any doubt that as soon as plaintiff had sued Dejean and obtained a judgment in favor of the present defendant, he had earned and was entitled to recover from defendant the honorarium stipulated in the note. Dejean owed nothing to the present plaintiff and we fully agree with defendant’s counsel that plaintiff had no direct' monetary interest in the judgment which he obtained against Dejean. The - stipulation for attorney’s fees is- in favor of defendant and, in the contract of - employment, it merely served as the basis fixing the amount of the fee which plaintiff was to recover -from .defendant and which defendant was ■ to- recover from. Dejean as stipulated damages.

The defense that plaintiff cannot recover because he presented a bill to defendant immediately after obtaining judgment and collected tw’enty-five dollars for professional services in the- suit against Dejean seems to be based upon equitable estoppel. But there is nothing to show that defendant had been misled, its position made worse or has lost anything by the payment of that bill. Plaintiff explains in his testimony that he charged this amount as a minimum fee in case defendant was unable to collect its judgment, or, in other words, that .Ini was willing to lose the balance of the fee if defendant was unsuccessful in recovering its claim against Dejean. .

There is nothing immoral, wrong or reprehensible in this act of plaintiff.

We believe the judgment appealed from should be affirmed and it is so ordered.


author: ELLIOTT, J.

text:
    No. 5846
    First Circuit Appeal
    JOHN B. GARDNER v. LOUISIANA WESTERN RAILROAD COMPANY
    (December 30, 1924, Opinion and Decree)
    (February 18, 1925, Rehearing Refused)
    (In U. S. Supreme Court)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 131,149.
    Where, under Act No. 223 of 1914, two years had not elapsed from the day of delivery to the day that defendant was cited, prescription was interrupted, although there is .no evidence to show when notice in writing was given to plaintiff that his claim was disallowed.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 131, 149, 160.
    Under the law of offset and compensation, where the main demand for damages to a freight shipment has not prescribed, the demand of defendants in a reconvention demand for a balance due on freight charges on the same shipment of merchandise has not prescribed.
    (Civil Code Article 2754.. Editor’s note.)
    Appeal from the Eighteenth Judicial District, Parish of Acadia, Hon. Wm. Campbell, Judge.
    This is a suit for damages to a shipment of goods. There was a reconventional demand. There were pleas of res adjudicata and prescription. Judgment for plaintiff. Defendant appealed.
    Judgment amended and affirmed.
    Medlenka and Bruner, of Crowley, and Harry McCall, of New Orleans, attorneys for plaintiff and appellee.
    Levy & Chaffe, of New Orleans, and P. S. Pugh, of Crowley, attorneys for defendant and appellant.
   ELLIOTT, J.

On a previous appeal in this case from a judgment against plaintiff, John B. Gardner, sustaining the prescription of two years pleaded against this action by the defendant Louisiana Western Railroad Company under the law of this state, Act 223 of 1914, the judgment appealed from was reversed, the exception and plea of prescription overruled and the case remanded to the lowbr court for further proceedings as the law provides.

Plaintiff’s demand is for damages alleged to have been caused by the injury to various articles and the complete loss of others belonging to plaintiff in an interstate shipment of same by him as freight consigned, the initial carrier receiving the freight at Crowley in the parish of Acadia.

Defendant denies the injuries and losses alleged and in amended answer urges against plaintiff a demand in reeonvention for $100.00 as an undercharge on the freight and $3.00 as war tax, total $103.00.

Plaintiff in turn pleads and urges against defendant’s demand in reconvention the prescription of. two years under the law of this state, Act 223 of 1914. The lower court, after trial on the merits, maintained the prescription of two years urged hy plaintiff against defendant’s demand in re-convention and rend.ered judgment in favor of the plaintiff for $324.00 with legal interest from July 9, 1920, until paid.

Defendant has appealed.

A plea and exception of res adjudicata was filed in this court by the plaintiff and appellee, Gardner, as to the question of prescription which defendant had filed in the lower court based on Act 223 of 1914 and which the lower court had sustained but which this court overruled on appeal; presumably because of defendant's argument and brief in this court in which this plea and prescription of two years under Act 223 of 1914 is again urged by defendant, on the theory, we suppose, that the ruling of the lower court and of this court on the question of prescription was an interlocutory decree and therefore the ruling subject to review; because the record does not show any new exception and plea of prescription on part of the defendant.

In regard to the plea and exception of prescription of two years based on Act 223 of 1914 urged by defendant, and which was .before this court considered and decided on the previous appeal, we do not accept as correct defendant’s contention that the judgment of the lower court sustaining the prescription of two years pleaded and dismissing the suit; which judgment was appealed, from and on appeal reversed, the $lep. of prescription overruled and the case ■ remanded, was an interlocutory judgment, subject to further review; but as a final judgment, disposing of that question and closing' it against further review on appeal in the same case; but We have, for the purposes of this appeal, pretermitted that question and have re-examined it anew as if it had not been formerly considered at all.

The shipment in question Was inter state, therefore comes within the Act of Congress:

“Provided further, that it shall he unlawful for any such common carrier to provide hy rule, contract, regulation, or otherwise, a shorter period for giving notice of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for the institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof, specified in the notice.”

Plaintiff alleges that his claim was disallowed October 29, 1920, but the record shows that this suit was filed on April 12, 1922, and defendant cited on April 13, 1922. The plaintiff testifies without contradiction that the goods Were not delivered to him at Murray, Kentucky, until April 15, 1920. We conclude that it was impossible for plaintiff’s claim to be disallowed before the goods were delivered to him; consequently, although the record does not show when notice in writing was given to plaintiff that his claim had been disallowed, if given at all; yet as two years did not elapse between the day of delivery and the day defendant was cited, the prescription urged by defendant is not good and can not he sustained. We will not write in this opinion the views expressed by us in our former opinion, but will hold, adding thereto the above statement of fact, that our former opinion was correct .and properly disposes of the prescription pleaded under the law. .

In regard to the merits of the controversy, the preponderance of the evidence establishes the injuries and losses claimed by plaintiff. It is not easy to fix the proper sum which should be paid on account of injuries to and the loss of articles such as claimed by plaintiff, but we are satisfied that the sum allowed by the district judge is correct under the evidence and will not disturb his judgment in that respect. The shipment being inter state, the initial carrier is responsible under the law governing interstate shipments for the entire injury and loss sustained as far as the shipper is concerned.

Ah undercharge in freight $100.00 and war tax $3.00 is claimed by defendant and established by the evidence, total $103.00.

"The District Court maintained plaintiff’s plea and exception of prescription of two years under the law, Act 223 of 1914, of this state against the demand. Without reference to any law except that of offset and compensation, it can be said that plaintiff owed this additional sum as freight and war tax at the time the goods were received by him. He had been injured while his goods were in transit in a sum and amount not determined until he filed this suit April 12, 1922, in which he fixes the total sum due him on that account. As the judgment allows plaintiff interest from July 9, 1920, we conclude that this sum due on account of freight and war tax should be imputed as a credit and offset against the sum allowed plaintiff as of date July 9, 1920, Such being our view, the prescription urged by plaintiff against this demand is not applicable to bar or cut off the same. The judgment appealed from will be amended in this respect so as to conform to our views. '

It is therefore ordered, adjudged and decreed that, there be judgment in favor of the plaintiff, John B. Gardner, and against the defendant, Louisiana Western Railroad Company, for $324.00 with legal interest thereon from July 9, 1920, until paid, less and subject to $103.00 as credit applied thereto July 9, 1920, and as thus amended that the judgment appealed from be affirmed, defendant and appellant to pay the cost of the lower court, the plaintiff and appellee the cost of appeal.


text:
    No. -
    First Circuit Appeal
    RENE VIATOR v. GASTON PATOUT
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Specific Performances — Par. 21.
    Where a written contract is so lacking in detailed specifications that the court can not determine the agreement of the parties thereto, the contract is not susceptible of being enforced by judgment of specific performance.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    This is a suit for specific performance of an alleged contract.
    Judgment for defendant in Court of Appeal.
    L. P. Bryant, of New Iberia, attorney for plaintiff.
    Weeks & Weeks, of New Iberia, attorneys for defendant.
   LECHE, J.

Plaintiff as beneficiary and transferee, sues for the specific performance of an agreement assumed by the defendant, wherein the latter obligated himself “to cut and extend a canal” to the property of plaintiff, etc. The obligation was originally entered into by Henry Pa-tout and Gaston Patout in favor of Dr. Albert G. Hemmer, plaintiff being the assignee of Dr. Hemmer and defendant the assignee of his co-purchaser, Henry Patout. The purpose of the stipulation was to afford Dr. Hemmer drainage facilities in favor of the land retained by himself, over the land • which he sold to Henry' and Gaston Patout. There are no specifications as to the location, the width and depth of the canal in the written contract sought to be enforced against the defendant, beyond the terms of the stipulation which in its entirety, is contained in the description of the property and reads as follows:

"Together with the above described property, t\hat certain canal and right of way located on the division line between lots 6 and 7 of the subdivision of the land of Ozone Segura, shown on the map hereto attached and belonging to L. Kling and Adolph Dugas. The vendees herein obligating themselves to cut and extend said canal to the property of vendor situated west of the property herein sold and the vendor herein reserving the right to drain his remaining property west of the tract herein sold, to the said canal.”

The important question presented for decision, is whether the obligation thus assumed by defendant, is such that the court may order its specific performance.

Whilst according to Art. 1926, C. C., the obligee' is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, specific performance has never been favored by our law. Pratt vs. McCoy, 128 La. 617, 54 South, 1012. Courts will not lightly order the specific performance of a contract; and, when damages will afford an adequate remedy, specific performance will be denied. N. O. Polo Club vs. N. O. Jockey Club, 128 La. 1044, 55 South. 668.

But beyond the aversation of the law to enforce specific performance,, the contract in this case is so lacking in detailed' specifications, that the court could not, in default of performance without substituting its judgment and discretion for that of the parties and reforming the contract by defining the location of the canal and designating its width and depth.

Our opinion then, is that the contract is not susceptible of being enforced by specific performance.

For these reasons, the plaintiff’s demand should be refused at his costs but without prejudice and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    BEREON CAMPBELL FURNITURE CO. v. C. PAUL LEACH
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Ligest — Mandate—Par. 90.
    Where a person knowingly and voluntarily accepts the benefits under a contract of agency and employment which was made in his behalf but without his authority, he thereby assumes its obligations. *
    Appeal from the Parish of Vernon, Hon. Hal A. Burgess, Judge.
    This is a suit to recover money alleged due on an open account. The defendant claims compensation for part of the claim by commission due him.
    There was judgment for plaintiff less the commissions and plaintiff appealed.
    Judgment affirmed.
    W. W. Thompson, of Leesville, attorney for plaintiff and appellant.
    C. E. Hardin, of Leesville, attorney for defendant and appellee.
   LECHE, J.

Plaintiff’s demand is founded upon an open account for a phonograph, household furniture, bedding, rugs, etc., totaling $908.85, subject to a credit of $697.22, and showing a balance due of $211.63, which amount it prays for judgment against defendant. Defendant admits an indébtédries§ of '$57.70, wliich' together with accrued costs, he tendered to plaintiff in full settlement, at the same time he filed his answer.

The District Court rendered judgment in accordance with defendant’s answer and plaintiff has appealed.

Defendant who resides at Leesville, in the Parish of Vernon, is regularly engaged in the business of selling and delivering sewing machines and in the pursuit of that business undertook as a side line, the sale and delivery of phonographs and other merchandise kept in stock by plaintiff whose establishment is located in Lake Charles. He went into the latter occupation at the solicitation of a Mr. Jencher, an agent and salesman of plaintiff, at a fixed compensation of ten per cent on the amount of the sales which he might make. It is not disputed that defendant made sales upon which he is entitled to commission which if credited to him, would reduce the claim of plaintiff to the amount tendered by him in his answer. But plaintiff contends that Jencher had no authority to make such contract in its behalf, with defendant, that, if any commissions are due to defendant, they are due by Jencher and not by itself. In argument plaintiff earnestly contends that there never was any contract entered into by defendant with any of its authorized officers and that ft 'is not liable for any commissions which may have been promised to defendant By Jencher.

It thus appears that the whole matter in controversy is whether plaintiff is liable to defendant for commission amounting approximately to $154.00, upon sales of its merchandise made and effected by defendant.

It is true that there never was any expressed verbal or written contract between plaintiff and defendant as to these commissions, but the evidence shows abundantly that ' plaintiff knew of' the agrée'nient entered into in its behalf by Jencher with the defendant, that it credited defendant with the stipulated ten per cent commission on sales which it made without the intervention of Jepcher, directly to defendant for his own account, that defendant sent orders to plaintiff for goods, that the goods were consigned to defendant to be by him delivered, and that a large amount of the credits appearing on the open account filed in the record, is for commissions earned by defendant under the contract made by Jencher. We believe that the evidence shows that the agreement made by Jencher with defendant, even if not authorized in the beginning, was subsequently approved, ratified and fully confirmed by plaintiff in its dealings with defendant, lasting over a period of two years.

Where a person knowingly and voluntarily accepts the benefits under a contract which was made in his behalf but without his authority, he thereby assumes its obligations. — Qui sentit commodum debet sentiré et onus.

The judgment appealed from is therefore affirmed.


author: LECHE, J. ELLIOTT.

text:
    No. -
    First Circuit Appeal
    GLOBE INDEMNITY COMPANY v. J. R. QUESENBERRY AND WIFE
    (Dec. 30, 1924, Opinion and Decree.)
    (Feb. 18, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 173.
    The husband, merely as such, is not responsible for the tortious acts of his wife.
    (Civil Code, Art. 2315, Editor’s note.)
    2. Louisiana Digest — Marriage—Par. 267, 268; Pleading — Par. 62.
    An exception no cause of action will be sustained to a suit against the husband for the tortious acts of his wife where it is not alleged that the wife was his employee, servant, or acting as agent for him.
    ON THE MERITS.
    3. Louisiana Digest — Automobiles—Par. 8; Negligence — Par. 42.
    Where an auto unoccupied left standing suddenly rolls down a hill causing a show-window glass to break, if no negligence of party leaving auto can be proven, no damages are allowed. (Civil Code, Article 2315. Editor’s note.)
    Appeal from the Parish of Iberia, Hon. James Simon, Judge.
    This is a suit for damages to a show-window glass by an auto against husband owner and wife driver. There was judgment for plaintiff against wife and she appealed!
    The judgment for husband is affirmed and against wife reversed.
    Provosty and Vuillemont, of New Iberia, attorneys for plaintiff and appellee.
    Burke & Smith, of New Iberia, attorneys for 'plaintiff and appellant.
   LECHE, J.

Plaintiff as subrogee and transferee of Prank Beaullieu,' sues the defendants, husband and wife, as jointly and severally liable to it, for damages alleged to have been caused by the fault and negligence of the wife.

Mrs. Quesenberry drove an automobile into Beaullieu’s filling station, stepped out of the machine and went away. After she had left, the automobile rolled against a show-window glass which was broken by the impact. Plaintiff indemnified Beaullieu and sues in its capacity aforesaid to recover the value of the glass.

An exception of no cause of action as to the defendant husband was filed and maintained, but another judgment was subsequently rendered which condemns the wife, only, for the damages. Both judgments have been appealed.

1. The automobile was the property of the husband but was under the sole and entire control of 'the' wife when the accident occurred. Thé' husband was not present. It is not alleged that the wife was using the machine under the direction of her husband or that she was acting as agent of her husband. It is not contended that she was an employee or servant of her husband. 'The question of law then raised by the excéption of no cause of action, is whether under these facts, the husband by the mere fact of occupying the relationship of husband, is liable for the negligence of the wife, granting that there was negligence.

The only Article of the Civil Code, that we have been able to find, bearing upon this situation, is Art. 2317, which expressly imposes on us responsibility for the acts of persons for whom we are answerable. Subsequent Articles, with a view of defining the modifications under which we are responsible for the acts committed by persons for whom we are answerable, speak of minors, insane persons, servants and overseers, scholars and apprentices. Nowhere does the Code prescribe in so many words, that husbands are answerable for the tortious acts of their wives. Indeed the tendency of late legislation is to liberate the wife from the yoke of the husband and to bestow upon her many rights heretofore withheld from her. It follows as a corollary that to grant her additional personal rights is to burden her with a corresponding increase of personal responsibility.

Several decisions of our Supreme Court are cited in brief of counsel, but we do not consider them appropriate to the facts of this case. We are also asked to adopt what counsel call the “Family Purpose Doctrine” of other States, under which the husband and father is held responsible for all damages caused by any member of the family in the operation of an automobile which is intended for the benefit of the members of such family. In this state, liability for damages must be clearly expressed or implied from the terms of the statute, Art. 2315 of the Code, and as we find no such provision either in that article or those following, establishing such liability on the part of the husband, we do not believe that plaintiff has any cause of action against the defendant husband.

2. On the trial of the merits, it was of course encumbent upon plaintiff to show negligence on the part of Mrs. Quesenberry. The circumstances under which the show-window glass was broken are shown to be, that in accordance with her custom and habit, she drove the Dodge automobile into Beaullieu’s filling station and to quote her own language which is not disputed: “I was teaching school and I would leave the car at the garage and go on to School, and I had driven in to leave the car. I was driving very slow because I saw the car, the other car. I got out of the car before it went into the glass'at all. I had stopped my car like I always do. Put on the brakes and had it on neutral. It seems to have coasted a little. I was about a yard away from the car.” She further states that the car did not move until she was out of it. She is sure it was in neutral and that she had taken her key. These are the only relevant facts to which she testifies. No other witness saw the car ■ move, though they heard the crash .when the glass was broken. No one can positively state what caused the car to roll after Mrs. Quesenberry got out of it. It is not pretended that the engine was running and the only accountable force that could have moved it, is gravitation. We understand from Mr. Beaullieu’s testimony that the floor of his station is not level, that it slants towards the street and it may be that the weight of the car started it diagonally down the incline and thus brought it in contact with the glass. Again it may be that some other outside force, unseen by those who testified, may have driven that car against the show window. But these are only surmises.

The facts in the record do not present a case coming under the doctrine of “Res ipsa loquitur” and we do not feel justified in finding Mrs. Quesenberry guilty of negligence under the condition- of the proof as presented to this court.

For these reasons the demand of plaintiff against each of the defendants is re; jected and the judgment in favor of Mr. Quesenberry is affirmed and that against Mrs. Quesenberry is reversed, plaintiff to pay all costs.

DISSENTING OPINION OF JUDGE

ELLIOTT.

I dissent from the opinion and judgment of the majority of the court in the above case.

I think Mrs. Quesenberry should have applied brakes to her automobile in a way sufficient to hold it and that her failure to do so was a negligent act and that the glass window was broken as a result of her negligent act and that plaintiff should' recover the amount of damage thereby sustained.

But I contend that the wife is not liable under our law on account of what was done, I take no notice of the “Family Purpose Doctrine” of other states and believe that our Civil Code should only be applied to for authority.

Under the Civil Code the damage done by Mrs. Quesenberry was a community debt due by the community which presumably exists and of which Mr. Quesenberry is the head and master and responsible party.

I think judgment should be rendered against him for the damage and that no judgment should be rendered against his wife.


text:
    No. -
    First Circuit Appeal
    COLUMBUS PITRE v. C. R. SHORT LUMBER CO.
    (Dec. 30, 1924, Opinion and Decree.)
    (Feb. 18, 1925, Rehearing Refused.)

      (Syllabus Vy the Editor.)

    1. Louisiana Digest — Timber—Par. 10.
    The equitable method to measure saw logs is to use the mean diameter.
    2. Louisiana Digest — Evidence—Par. 53. •
    Where there is no evidence to show whether, in measuring logs, an allow- ' anee was made for bark, the doubt is resolved against plaintiff who must prove his case.
    Appeal from the Parish of Vernon, Hon. Hal A. Burgess, Judge.
    This is a suit to recover the cost of timber cut through error and for which an agreement has been made but there is a disagreement as to method of' computation. There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    W; W. Thompson, of Leesville, attorney for plaintiff and • appellee. .
    S. I. Foster, of Leesville, attorney for defendant and appellant.
   LECHE, J.

The only question involved in this case is the proper manner of computing the measurement of saw logs. Certain timber belonged to plaintiff but through error, was cut and taken by defendant. Defendant has agreed to pay and plaintiff has agreed to accept twelve dollars per M for the timber thus cut and taken.

The cause of action in this case is very similar to that of Peter et al. vs. Owl Bayou Cypress Co., according to the statement of facts recited in that decision as reported in 137 La. 1067, 69 South. 840. It was held in that case that in the absence of any express agreement to the contrary, it is fair to both parties to take the mean diameter of the. log and that it is not fair to the seller to measure the diameter only at the small end. The mean diameter is obtained by measuring the diameter at the large end and the diameter at small end by adding the two diameters together and by dividing the total by two.

That was the method pursued by plaintiff in obtaining his measurements in' the present suit. It is equitable to both parties and it is sanctioned by the cited decision. The method adopted by defendant, which is said to be in accordance with the custom of many timber buyers, was to measure the diameter at the small end and to increase that diameter by 2 inches every 16 feet. regardless of the actual size of the increasing diameter in the direction of the lower or larger end . of the tree.

The latter method rests more or less upon mere estimates, while the first is based upon real and actual measurements.

The District Judge waS of the opinion that plaintiff’s computation was more in consonance with fairness and in that view we fully concur.

Appellant calls our attention to the fact that the measurements taken by plaintiff include the bark and that according to the system of measurements upon which plaintiff relies, it is conceded as “usual to allow, on account of the bark, for oak l-10th or l-12th part of the circumference; for beech, ash, etc., less should be allowed”.

The actual measurements of the ends of the logs were made in person by Winfree on behalf of plaintiff, and Funderburk on behalf of defendant. The other two witnesses Welsh and Short merely wrote the figures as they were called by Winfree and Funderburk. But Winfree and Funderburk disagree as to whether the bark was included in taking the measurements, and we have no other me'ans of ascertaining whether it was or not. It was encumbent upon plaintiff to prove the correctness of his claim and to show with certainty that the measurements were taken inside the bark and as he has failed to do so, the doubt must be resolved against him. A deduction of l-12th, in, the absence of evidence as to the kind of trees measured should be a fair compliance with the rule.

Wé believe that a deduction of l-12th should be made from plaintiff’s measurements and that the amount of plaintiff’s claim should accordingly be reduced from three hundred and fifty-two 17/100 dollars to two hundred and twenty-seven 56/100 dollars.

For these reasons the judgment appealed from is amended by reducing the amount thereof from three hundred and fifty-two 17/100 dollars to two hundred and twenty-seven 56/100 dollars and as thus amended it is ordered that said judgment be affirmed appellee to pay costs of appeal.


text:
    No. -
    First Circuit Appeal
    LESTER FOOTE, ET AL., v. ST. JOHN GRAND LODGE, A. F. & A. M. ALINE FOOTE, Intervenor
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Association—Par. 21.
    Where a benefit certificate of fraternal insurance is made to the insured’s “four children” the placing of thé name of the wife as beneficiary on an affidavit required by a subsequent by-law of the order requiring the names of beneficiaries does not make the wife the beneficiary but the “four children” remain such, especially where such was the express wish of the insured.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit brought by the children of the deceased to recover fraternal insurance. The wife intervened. There was judgment for plaintiffs and intervenor appealed.
    Judgment affirmed.
    Robt. Harry, of Opelousas, attorney for plaintiff and appellee.
    C. M. Robinson, W. A. Robinson, of Opelousas, attorneys for defendant and appellant.
   LECHE, J.

W. H. Foote obtained from the defendant an insurance benefit certificate on May 28, 1921, payable to his four children, and died in the month of September, 1922. Defendant has no direct interest in the present suit by the four children of Foote, except to the extent that the fund of five hundred dollars for which it virtually admits its liability, he paid to the proper person or persons. The contest is between plaintiffs and Aline Foote, widow of W. H. Foote by his second marriage.

It seems that after the benefit certificate was issued to Foote, in May 1921, there was held the latter part of June, 1921, a convocation of the defendant Grand Lodge, at which it was decided that benefit certificates should bear the names of beneficiaries. In conformity with this action of the Grand Lodge, all subordinate Lodges were accordingly notified and the members were ordered to give the names of their beneficiaries by affidavits sworn to in the presence of a notary public, and to pay fifty cents to the grand secretary for a rider to be attached to each certificate in which the names were to be written, W. W. Solite, Secretary of the subordinate lodge located in Opelousas, of which W. H. Foote was a member, took it upon himself to forward to the grand lodge in Shreveport, the name of Aline Foote who was then the wife. of W. H. Foote, as beneficiary of Foote’s certificate. The evidence leaves no dqubt that Foote never designated his wife as his beneficiary and that as soon as - he discovered the error made by Solite, local secretary, he wrote the latter and gave him a list of the names of his four children. Pending the correspondence between Solite and the secretary of the grand lodge and before a rider drawn up in conformity with the wishes of Foote could be issued by the grand secretary in compliance with the new regulation of the grand lodge, Foote departed this life.

It must be observed that the question involved does not relate to a change of beneficiary nor to the manner and form in which such change should be demanded and effected. Foote never contemplated a change in the beneficiary of his insurance. Wliat he was requested to do and what he was willing to do, was to specify the names, of the beneficiaries whom he had then ■ already designated as his “four children”. At the time he first made such designation .as his “four children”, it is not disputed that this was sufficient. It was the defendant grand lodge which required by a by-law subsequently adopted, that the names of these four children should be specifieially mentioned. Therefore the jurisprudence in regard .to a change of beneficiary, which has not been regularly and legally executed, has no bearing Upon this case.

The error in carrying out the by-laws adopted by the grand lodge in June .1921, was made by Solite who was acting as agent of the grand lodge and not as agent of Foote', "and it would be unconscionable, to hold Foote responsible, for such error..

We believe the judgment appealed from which is in favor of plaintiff should be affirmed and

It is so ordered.


text:
    No..-
    First Circuit Appeal
    CLAUDE B. ELLIS v. FRANK COLLETA BERNICE ELLIS v. FRANK COLLETA
    (Consolidated)
    (Dec. 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4.
    Where, in an automobile collision, the party driving on the wrong or left side of the road is negligent and the party driving on the right side of the road is not negligent, damages will be allowed against the party negligent and in favor of the party on the right side of the road.
    2. Louisiana Digest — Appeal—Par. 625; Automobiles — Par. 4 (a).
    The opinion of the trial judge on a question of who was negligent in an automobile collision, • being manifestly correct, is affirmed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Calcasieu, Hon. Jerry Cline, Judge.
    This is a suit for damages to ah automobile and for physical suffering. There was judgment for plaintiff and defendant appealed. .
    Judgment affirmed.
    Cline & Plauche, of Lake Charles, attor.neys for plaintiff and appellee.
    E. F. Gayle, of Lake Charles, attorney for defendant and appellant. .
   LECHE, J.

The plaintiffs in the "two above entitled causes are husband and 'wiife and they sue for damages resulting from a collision, between the automobile in which they were riding and another automobile driven by and under the control of defendants’ minor son. The plaintiffs filed separate suits which were consolidated for -trial and argument. A judgment was rendered in favor of each of the plaintiffs and defendant has appealed.

The accident happened on a public highway some three or four miles out of Lake Charles, between eight and nine o’clock in the evening of August 5, 1923. Plaintiffs were coming towards Lake Charles and defendant was going in the opposite direction. The left front wheels of the two cars came in violent contact, then both machines swerved towards the south side of the road, that is to plaintiffs’ right and to defendant’s left, that of plaintiffs’ careened over on its -side and that- of defendant’s remained upright on three wheels, near the edge of the ditch.

The parties mutually charge each other with reckless driving, each one claiming that the collision resulted from the fault and negligence of the other.

A preponderance of the evidence shows that plaintiffs were driving in conformity with the well-known rule of the road, on the extreme right, at a distance varying from one to five feet from the edge of the ditch and that on the contrary, defendant wás pursuing a course near the center of the road and that when within a few feet of each other, defendant swerved to his left bringing his left front wheel in contact with the left front wheel of plaintiffs’ machine.

Immediately after the collision, plaintiffs had several disinterested Witnesses to trace on the ground, the tracks made by the two automobile's and the investigation . of these witnesses bears out this finding of facts.

The highway upon which the collisioh took place is gravelled and is used for automobile traffic. Defendant questions in argument, the reliability of the testimony which describes the wheel tracks of the two automobiles previous to the collision, on account of the difficulty of distinguishing them from numerous other tracks made by other automobiles. This difficulty no doubt, was very apparent to the persons who made the investigation and there is nothing in the testimony itself to weaken the positive assertions of these witnesses. The fact that plaintiffs at once had these tracks examined by disinterested witnesses, is a circumstance in 'our opinion, which confirms the correctness of the version by the plaintiffs as to the course they were . following along the road, for if that course had not really been in conformity with the rule of the road, such an investigation eouid only have discredited their testimony.

The trial judge was of the opinion that defendant was at fault. The evidence seems to bear out that finding and we concur therein.

Plaintiffs’ automobile was almost a complete wreck and plaintiffs themselves suffered physical pains from the shock. The judgment allows the husband $350.00 for his automobile and'$168.00 for loss of time and physical suffering. It further allows the wife $100.00 for the destruction of the contents of a suit case and $150.00 for physical and mental suffering.- These amounts appear to be fair and not excessive.

The judgment appealed from is therefore affirmed.


text:
    No. -
    First Circuit Appeal
    ESTATE OF REO CHAPMAN
    (Dec. 30, 1924, Opinion and Decree.)
    (Feb. 18, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 126.
    Where there is no “contestatio litis” in the lower court, the case cannot be appealed because the Court of Appeal has no original jurisdiction.
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    Appeal dismissed.
    J. C. Fr'uge, of Ville Platte, attorney for plaintiff and appellant.
   LECHE, J.

In the above matter, which could be more properly styled “Tutorship of the minors Chapman,” the undertutor appeals from two judgments, one, which appoints and confirms the surviving mother, of the minors as their tutrix and the other which adjudicates the share of the minors in the community property, to their mother and tutrix. The appealing under-tutor approvéd the deliberations of the family meeting, the account of the tutrix and made no objection whatever in the trial court, to any part or portion of the proceedings which appear in the record. He • justifies his action in appealing on the ground that he is illiterate and that his approval to the proceedings was given without a proper understanding thereof. He pleads irregularities and defects in the proceedings and prays that this court annul and set them aside.

Appellant has evidently mistaken his remedy. ' There was no constestatio litis in the lower court and we are virtually asked to exercise original jurisdiction in this matter. Non constat but that the District Court would grant that relief, if the issue was properly presented to it.

The appeal is dismissed at the cost of appellant.