text:
    No. 3194
    Second Circuit
    LAWN v. CITY OF MONROE
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Municipalities—Par. 258.
    It is negligence for a municipality operating an electric light plant to allow an electric light wire strung across a public thoroughfare to sag so low as to obstruct ordinary vehicular traffic on the street.
    Williams vs. Louisiana E. P. Co., 43 La. Ann. 295, 8 So. 938.
    2. Louisiana Digest — Municipalities—Par. 258, 263; Negligence — Par. 21, 22.
    A boy 16 years old, without warning or other knowledge of the presence of an electric light wire twelve or thirteen feet above the ground on a public thoroughfare, and who, while lying on top of a truck-load of cotton, the top of which was ten and a half feet above the surface of the street, moving through the street, came in contact with the wire and was by it pulled from the truck and thrown to the ground, was not guilty of negligence in failing to anticipate the presence of the wire at the place and guard against the danger of coming in contact with it.
    Weber vs. Union Company, 118 La. La. 77, 42 So. 652.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by Pat Lawn against City of Monroe.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellee.
    R. H. Russell, of Monroe, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, Pat Lawn, for the use and benefit of his minor son, George Lawn, sues the defendant, City of Monroe, for $15,000.00, damages alleged to have been sustained by his son in being pulled from the top of a truck-load of cotton on which he was riding on a public street of the City of Monroe by coming in contact with an electric light wire strung across the street by defendant as part of an electric light system owned and operated by it.

The defendant denied liability and alleged contributory negligence on the part of the injured boy.

During the trial defendant filed an exception to the capacity of plaintiff to stand in judgment for the use and benefit of bis minor son, alleging that tbe son bad, by judgment of tbe Juvenile Court of tbe Parish of Ouachita, been sentenced to confinement for an indefinite term in tbe Louisiana Training Institute at Monroe, Louisiana, and was actually confined in said institute under tbe judgment, in consequence of wbicb plaintiff was not tbe legal guardian of and bad not tbe care, custody or control of bis son, but that sucb guardianship, care, custody and control was in tbe said institute.

On these issues tbe case was tried and there was judgment in favor of tbe plaintiff for tbe use and benefit of bis minor son for $2,000.00, less a credit of $420.50 on account of expenses connected with the injuries received by the boy and paid by tbe City of Monroe, with legal interest on tbe balance from judcial demand.

Tbe defendant appealed, and plaintiff has answered tbe appeal and asks that tbe judgment be increased to $5,000.00.

OPINION

Tbe evidence shows that the City of Monroe was engaged in operating an electric light plant for profit and bad an electric light wire strung across south Grand street in that city and bad permitted it to sag to a point between eleven and a half and twelve and a half feet above tbe surface of tbe street and that plaintiff’s son was lying on top of a truck-load of cotton, tbe top of wbicb was ten and a half feet above the ground moving southerly on South Grand street. As to tbe manner in which be was injured, tbe boy testified:

"Q. You say you didn’t see the wires before you struck one of them?
“A. No, sir.
“Q. How were you lying?
“A. On my stomach, my face facing south.
“Q. Pacing tbe way tbe truck was going?
“A. Yes, sir.
“Q. Pacing ahead, with your bead and shoulders propped up on your arms?
“A. My bead thrown back.
“Q. Looking straight ahead?
“A. Looking over to tbe parish school.
“Q. Weren’t you looking the way you were going?
“A. No, sir.
“Q. Were you passing tbe parish school?
“A. Yes, sir.
“Q. Or very near it at tbe time this happened, and that’s what you were doing, looking that way instead of looking aheau?
“A. Yes, sir.
“Q. Tbe first you knew, tbe wire caught you under tbe chin?
“A. Yes, sir.
“Q. Knocked you off?
“A. Yes, sir.
"‘Q. That’s tbe last you know?
“A. Yes, sir.
“Q. You know about bow fast tbe truck was going?
“A. About fifteen miles an hour.”

Tbe evidence shows that tbe top of tbe load of cotton on the truck on which plaintiff’s son was lying and riding was ten and a half feet from tbe ground and therefore tbe wire that caught tbe boy under the chin and knocked him off the truck must have been from eleven and a half to twelve and a half feet above the ground.

In Williams vs. Louisiana E. P. Co., 43 Ann. 295, it was held to be actionable negligence for the operator of an electric light system to allow its service wires to bang so low above a public street as to interfere with ordinary traffic thereon, and that the wire in question was low enough above the street to interfere with ordinary traffic is proved by the fact that on two occasions it had been pulled down by vehicles attempting to pass under it, one of them a truck-load of hay and the other a truck-load of furniture; and notwithstanding this the defendant took no action looking to raising the elevation of the wire.

This was negligence on the part of defendant, making it liable in damages for the injuries suffered by plaintiff’s son.

Defendant insists that the boy was guilty of negligence and that his negligence contributed to the accident. We do not think the evidence shows this. It does not appear that the boy was aware of the presence of the wire or that he should have been aware of it, and but for the presence of the wire no harm would have resulted to him in consequence of his riding on the load of cotton.

Defendant’s negligence was the proximate cause of the accident and plaintiff’s son was not guilty of negligence and the defendant must respond in damages for the injuries suffered by the boy.

Defendant has not pressed, either in oral argument or in brief, its exception to the right 'of plaintiff to stand in judgment for the use and benefit of his son, and we assume that the exception is abandoned.

Plaintiff cites numerous authorities in support of his application for an increase in the amount of damages awarded his son, but considering the nature and extent of the injuries suffered by the boy we think the amount allowed ample. The injuries consisted of a slight fracture of the “outer table” of the skull above the left eye, from which the boy has entirely recovered, and the only disability remaining is a slight drooping of the left eye, lid which does not prevent the eye from being entirely closed, but does not enable him to lift the eye lid entirely over the eye. He was confined to the hospital for twenty-four days. His vision is not at ail affected in consequence of the drooping eye lid, nor is he at all. disfigured thereby. The boy testified that when his head gets warm it aches.

The District Judge, who heard and saw the witnesses testify and saw the boy as he appeared at the trial, gave plaintiff judgment for $2,000.00, less medical and hospital expenses, amounting to $420.50, paid by defendant, and the evidence does not enable us to say that this award was either too high or too low.

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


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3267
    Second Circuit
    GEORGE E. BREECE LUMBER CO v. EDWARDS
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Timber—Par. 1, 3.
    One who exchanges standing pine timber for pine logs delivered at its mill is entitled to sound logs and is.not liable in damages for refusing to accept worm eaten logs.
    C. C., 2156.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.

      Action by George E. Breece Lumber Company against R. L. Edwards.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendant, appellant.
   STATEMENT OP THE CASE.

REYNOLDS, J.

The O. S. Hawes Lumber Company and defendant R. L. Edwards, both owners and operators of sawmills and of tracts of merchantable pine timber of approximately 3,000,000 feet each, on September 24, 1923, entered into a written contract for an exchange of pine timber by the terms of which each was to take from the land of the other an equal quantity of timber to be determined on stumpage basis, thousand feet for thousand feet, and defendant R. L. Edwards agreed to cut, log and deliver his timber to the mill of the O. S. Hawes Lumber Company and was to be paid by it therefor $7.50 per thousand feet. The deliveries were to be made during the years 1923 and 1924 but by verbal agreement of the parties was extended to include the years 1925 and 1926.

At the conclusion of the deliveries under the contract it appeared that defendant R. L. Edwards had cut and appropriated from the timber of the other party 143,846 in excess of what'had been received by the other party from defendant R. L. Edward’s timber.

Alleging that by transfer on December 12, 1924, it succeeded to the rights of the O. S. Hawes Lumber Company under the contract with the consent, both express and implied of defendant R. L. Edwards, plaintiff George E. Breece Lumber Company brought this action to recover from defendant the sum of $511.44, as and for 143,846 feet of timber at $4.50 per thousand feet, amounting to $647.31, less $135.77 severance tax paid by defendant.

Defendant excepted to the petition on the ground that it disclosed no cause of action and by agreement of parties the exception was referred to the merits.

Defendant then answered denying that plaintiff was legally subrogated to the rights of the O. S. Hawes Lumber Company and alleging that the transfer from the O. S. Hawes. Lumber Company to plaintiff was void because it affected realty and was not in writing.

Defendant further alleged that acting under the contract it cut, in addition to the number of feet alleged by plaintiff to have been received by it, 841,740 feet of timber and was moving it out of the swamp, preparatory to sending it to plaintiff’s mill when plaintiff stopped him from making further deliveries and that in consequence said timber, which plaintiff was obligated to take, remained on the ground for two years and plaintiff refused to accept it and defendant, in order to minimize his loss, hauled it to his own sawmill and manufactured it into lumber and suffered a loss thereon of $4.00 per thousand feet or $3,366.96, and he reconvened against plaintiff for that amount.

On these issues the case was tried and there was judgment in favor of plaintiff for $511.54 with legal interest from judicial demand, and defendant appealed.

OPINION.

EXCEPTION OP NO CAUSE OP ACTION.

Defendant did not set out in his exception wherein the petition was lacking in stating a cause of action, but in his answer he alleges that the petition shows no cause of action because the subject matter of the contract is realty and plaintiff could acquire an interest therein only by a writing and a written assignment is not alleged.

If the validity of the assignment of the contract could be raised by defendant we think he is estopped to question it by reason of his reconventional demand.

Besides, the contract only related to standing timber, and as to standing timber see—

Cleaton vs. Dowling, 164 La. —, 113 South. 759. No. 9 Southern Reporter, Advance Sheets, September 17, 1927.

There is no merit in the exception.

ON THE MERITS.

Defendant admits that he removed from plaintiff’s land 143,846 feet, board measure, of pine timber, more than plaintiff reoeived from defendant’s land, and the evidence shows and defendant does not dispute that such timber was worth $4.50 per thousand feet, board measure, amounting, after deduction of severance tax, to $511.54, but sets up by way of set-off and reconvention a claim' for $3366.96, damages he alleges he sustained by reason of the refusal of plaintiff to receive and pay for 841,740 feet of pine timber, board measure, his loss on which he alleges, was $4.00 per thousand feet.

So the only question for our determina-* tion is the set-off and reconventional demand of defendant.

The evidence makes it clear, we think, that ¡plaintiff did not refuse to accept any timber that by the contract it was under obligation to accept, and that the timber it refused was worthless.

Defendant, R. L. Edwards, testified that the 841,740 feet of timber lay in the swamp for two years before he removed it to his own mill and manufactured it into lumber, and:

“Q. At the time you carried them (logs) out to your mill, what condition was this timber in?
“A. Some in pretty bad condition; and some was not so bad.
* * *
“Q. Mr. Edwards, on what date did you receive a letter from the Breece Lumber Company refusing to take these logs?
“A. Some time in the summer of 1925. You can get it, I guess, from the time I made the last delivery of logs; I suppose along in 1925.-
“Q. The last delivery of logs was made in * * * July, 1925.
“A. That is about the time.
“Q. It is your testimony, then, that that is your first knowledge that you had that the Breece Lumber Company would not accept these logs?
“A. Yes, sir.
“Q. You were under the impression that they would accept them if you would make certain deductions?
“A. Yes, sir.
"Q. Did you ever tender them on that basis?
“A. No, sir.
“Q. From July, 1924, to July, 1925; did you ever tender them to them at a lesser price ?
‘.‘A. No, sir.
“Q. You permitted them to stay there in the woods waiting for the water? * * *
“A. Yes, sir.
“Q. You let them stay there a little over a year and made no tender of them to them ?
“A. I could not; we didn’t have any water.”

By the court:

“Q. Mr. Edwards, had there been any damage done to the logs at the time you say they were refused by the plaintiffs, the Breece Lumber Company?
“A. Yes, sir; that was something over two years from the time they were cut.
“Q. At the time they stopped you?
“A. Yes, sir.
“Q. Were the logs damaged any at the time they stopped you from hauling them?
“A. Yes, sir; but the question of damage was not considered; that is, he wanted us to leave the logs there and bring them in when the high water came, and take off the price for rehauling them when the water came the next winter, and the water didn’t get out of¡ the banks of the river.”

Emmett Crow, a witness for defendant, testified:

“Q. How much was this 841,740 feet of timber that was left in the swamp and finally salvaged by Mr. Edwards, damaged per thousand, when it was finally manufactured by him in 1925?
“A. I consider it was damaged to the amount it was worth at first. I would not have given anything at all for the timber the way it was, the condition it was in, in the summer of 1925.
“Q. How much would you say the damage per thousand to this timber was?
“A. Well, the minimum it was damaged $4.00 all right; it was damaged as much as $4.00 or more.
“Q. Please state, whether or not, from your timber experience, these logs were being damaged every day they stayed there ?
“A. Yes, sir; from 1924 until they were sawed up.
“Q. Do you know why Mr. Edwards permitted the logs to remain there from July, 1924, to July, 1925, when he saw there was no high water?
“A. I don’t know why he left them there other than awaiting for high water.”

Defendant’s 841,740 feet of logs were worm eaten and plaintiff was under no obligation to ac'cept them and incurred no liability to defendant in refusing to accept them.

The evidence makes it clear that defendant cut and removed from plaintiff’s land to his mill 2,887,552 feet of timber and cut from his own land and delivered at plaintiff’s mill an equal quantity of timber, and that in addition thereto defendant cut and removed to his mill from plaintiff’s land 143,846 feet of pine timber for which plaintiff has not received any consideration whatever. Defendant therefore owes plaintiff the value of this timber which, the evidence shows, was worth $4.50 per thousand feet.

Plaintiff was in no way responsible for defendant cutting 841,740 feet of timber from his own land and letting it lie in the swamp until it became worm eaten and worthless, and defendant’s only complaint against plaintiff is that it refused to accept worm eaten and worthless timber under their contract which entitled it to sound timber.

The judgment appealed from is correct and accordingly it is affirmed.


author: WEBB, J.

text:
    No. 2912
    Second Circuit
    SANDIFER v. STEPHENS
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes — Par. 116, 129.
    Under Sec. 14 of Act 64 of 1904, the Negotiable Instruments Law the fact that a note was signed in blank and that the agent of the drawer violated his instructions in filling out the blank, could not affect the holder who was without knowledge of such facts.

      2. Louisiana Digest — Bilis and Notes — Par. 116, 128.
    Under Sections 52 and 56' of Act 64 of 1904 the Negotiable Instruments Law the purchaser of a note in due course must have had actual knowledge of the infirmity or defect of title, or that his action in accepting a note amounted to bad faith, in order to defeat his recovery on it. Therefore, where there is no evidence of bad faith and note is paraphed to identify, it with mortgage, there being no alterations on the note, although note read for $600.00 and mortgage for $500.00, owner must be held purchaser in good faith.
    3. Louisiana Digest — Bills and Notes — Par. 204; Pleading — Par. 29.
    Where plaintiff, in suing on a promissory note, does not pray for interest or attorney’s fees, under Art. 553 of the Code of Practice is not entitled to judgment for either.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by J. E. Sandifer against Sandy Stephens.
    There was judgment for defendant and plaintiff appealed.
    . Judgment affirmed.
    Barnette and Roberts, of Shreveport, attorneys for plaintiff, appellant.
    Edward Barnette, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, Sandifer, alleges that defendant, Stephens, is indebted unto him in the sum of five hundred dollars with interest at the rate of eight per cent per annum from November 28, 1925, until paid, and ten per cent attorney’s fees on the principal sum and interest, for a certain promissory note annexed to the petition which, he alleges, he acquired in due course and before maturity.

The note attached to the petition purports to have been drawn by defendant on November 28, 1925, payable six months after date to his own order, and by him endorsed in blank, and stipulates for eight per cent per annum interest from date and for attorney’s fees of ten per cent, and on its face it bears marginal figures of ($500.00) while the writing calls for “six hundred dollars,” and plaintiff alleges that a mortgage (as appears by copy of same attached to the petition) for five hundred dollars had been given by defendant to secure the payment of the note, and that the note was in fact for five hundred dollars and should be corrected so as to correspond with the mortgage.

He alleges that the mortgage contained a waiver of the homestead right of defendant and his wife, and that it had been passed before a notary public, and he prays that the note be corrected to conform with the facts and that he have judgment against plaintiff in the sum of five hundred dollars as alleged, with recognition of the mortgage, and for all orders, etc., and for general relief.

The defendant admitted his signature to the note and mortgage, and otherwise denied plaintiff’s allegations, and alleged that the instruments had been signed by him in blank, that is, as to the amount, and that his wife had also signed the blank mortgage, which instruments had been entrusted to M. L. Clements with instructions to fill in the amount for four hundred dollars, and to negotiate the note and account to defendant for three hundred and seventy-five dollars, and that Clements had only delivered io defendant two hundred and fifty dollars in cash and given him a due bill for one hundred and twenty-five dollars.

Defendant further alleged that plaintiff had knowledge of the entire transaction, and that the note was defective, in that while the note stipulated for the payment of six hundred dollars plaintiff knew that defendant was not hound for that amount, and that plaintiff was not a holder in due course, etc., and that the note was not negotiable, and, further, that the homestead waiver was invalid, and he prayed that plaintiff’s demands be rejected.

On trial judgment was rendered in favor of plaintiff for two hundred and seventy-five dollars with interest at the rate of eight per cent per annum from the date of the note, and with recognition of the mortgage for the amount of the judgment, from which plaintiff appealed and defendant answered the appeal praying that the plaintiff’s demands be rejected, or in any event that the judgment be amended so as to strike therefrom the allowance for interest, urging there was no demand for interest.

The evidence establishes that the defendant had signed the note and mortgage in blank and entrusted same to M. L. Clements with instructions to fill the amounts to the extent of four hundred dollars, and to negotiate same and account to defendant for three hundred seventy-five dollars, and otherwise established the allegations of defendant’s answer, with the exception that it was not established that plaintiff knew of the manner in which the note came into the possession of Clements, but on the contrary it was shown that plaintiff had acquired the note from M. L. Clements after the blank had been filled, before maturity, for a valuable consideration, and on representations of Clements that he was the owner of the note, who represented, however, that it was for five hundred dollars instead of six hundred.

The position taken by the defendant in his answer and urged here, is that the plaintiff, having knowledge that the note was not for six hundred dollars as shown by the written amount called for on the face of the note, was not a holder in due course, citing sections 14 and 52 of the Negotiable Instruments Law (Act No. 64 of 1904).

Section 14 of the statute relates to the manner in which blank instruments may be filled, and provides that the blanks must be filled in accordance with the authority given, and the authorities cited by defendant would be applicable had the blank note come into the possession of the defendant and the amount been filled in by him; but the evidence, as stated, shows that the blank had been filled in by some one, we presume by Clements, before the note was negotiated to plaintiff, and comes within the provision of the section cited to the effect that “if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given,” (Stanley vs. Davis, 107 S. W. 773; Johnson vs. Knipe, 105 Atl. 705; Bank of Pittsburgh vs. Neal, 22 How. 107; 16 Law Ed. —; Davidson vs. Lanier, 4 Wall. 457, 18 Law Ed. — ; Angle vs. N. W. Ins. Co., 92 U. S. 330, 23 Law Ed. —), and the fact that the note was signed in blank and that the agent of the drawer violated his instructions in filling out the blank, could not affect the holder who was without knowledge of such facts.

Section 52 of the statute, which, in substance, declares that a holder in due course is one who has accepted the transfer of a note complete and regular upon its face before maturity, in good faith, for value, without knowledge of any infirmity in the instrument or defect in the title, of the person negotiating it, must be construed in connection with section 56 of the statute, which, in substance, provides that to constitute notice of the infirmity or defect of title, the purchaser must have had actual knowledge of the infirmity or defect, or that his action in accepting the note amounted to bad faith, and the evidence certainly does not show that plaintiff had such knowledge. (Randolph, Commercial Paper, No. 689), and unless the mere fact that the plaintiff accepted the note with knowledge that it was not for the amount stipulated, prevented him being held a holder in due course, we do not see any reason why he should not recover the amount.

In Theard vs. Gueringer, 115 La. 242, 38 South. 979, the holder of a note, with knowledge that it was for less than the amount stipulated, was held to be a holder in due course, and the same has been held where an endorsement was made on the note, reducing the amount of the note, with the knowledge of the transferee and without that of the drawer. (State Solicitors Co. vs. Savage (Miss.) 23 South. 413; Douglas vs. Wilkinson, 22 Wend. (N. Y.) 539; Bank vs. Evans, 9 W. Va. 373).

There was not any alteration in the note, and the fact of plaintiff having knowledge that it was for less than the amount stipulated was merely a circumstance to be considered, in determining the good faith of plaintiff, and it being the only circumstance to impugn it, and whatever weight may be given to the circumstance we think it was more than offset by the fact that the note also bore marginal figures showing it was for five hundred dollars, and was paraphed to identify it with an apparently authentic act of mortgage to secure the payment of the note, and fixing the amount at five hundred dollars, and we are of the opinion that the evidence established defendant’s good faith, and that he is entitled to the amount of five hundred dollars, with recognition o£ the mortgage.

Relative to interest and attorney’s fees, plaintiff did not specifically pray for judgment for either, but in argument it was urged that the note and mortgage being attached to the petition and the plaintiff, in the mortgage, waiving the benefit of appraisement and confessing judgment, that the interest and .attorney’s fees should be allowed under the prayer for general relief.

Article 553 of the Code of Practice declares that “interest shall not be allowed by the judgment, unless the same have been expressly claimed, and then only in cases in which the law permits such interest to be stipulated;” and the mere fact that plaintiff alleged the defendant was indebted to him for interest, was not sufficient for allowance of interest in the judgment, as the statute is to be construed as written in all cases where conventional interest is to be allowed (Alcolea vs. Smith, 150 La. 482, 90 South. 769; Duke of Richmond vs. Milne, 17 La. 328).

The mortgage was shown to have been signed in blank and was not an authentic act (C. C. Art. 2234, et seq.) and it being attached to the petition did not add anything to the prayer for general relief.

The note and the mortgage were offered in evidence, but they were admissible under the pleadings, and although the offering was not restricted by any objection, the evidence did not extend the pleadings, and the plaintiff cannot be allowed interest or attorney’s fees.

It is therefore ordered that the judgment appealed from be amended so as to increase the amount of the judgment to five hundred dollars, with recognition of the mortgage for that amount, and that the allowance for interest be stricken from the judgment, and as thus amended the judgment is affirmed.


author: ODOM, J.

text:
    No. 2579
    Second Circuit
    LEVY v. TELCIDE
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Bilis and Notes — Par. 192, 208; Pleading — Par. 62.
    Where two notes are given for the balances in the two previous years, the owner does not lose his right to sue on the larger note because of his having previously entered suit on the smaller one because each note represents a separate debt which the debtor agreed by his execution of the notes. Articles 91 and 15.6 of the Code of Practice therefore have no application.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by Leopold Levy against Charles Telcide.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    James W. Jones, Jr., of Natchitoches, attorney for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note. There was judgment in the lower court for plaintiff, and defendant appealed.

Plaintiff annexed to and made a part of his petition a promissory note alleged to have been signed by defendant for $144.38 dated December 31, 1919, and made due and payable on October 15, 1920, with interest at 8% from date and 10% attorney’s fees.

Before pleading to the merits, but reserving his rights to do so, defendant filed an “exception of no cause or right of action and a plea of res adjudicata” which was overruled by the court.

Defendant then answered, admitting his signature on the note, but denied that he was indebted unto plaintiff in any sum whatever.

He further alleged that on December 31, 1919, he was indebted to plaintiff in the sum of $188.38 on open account, and that on said date he executed his two promissory notes payable to the plaintiff, one for $44.38 and the other for $144.38 both due and payable on the same date, to-wit: October 15, 1920, and that on the — day of September, 1925 (should be'1924) the plaintiff filed suit on the $44.00 note in the Justice Court and obtained judgment thereon and that the same became final in due course.

And in paragraph 5 of his . answer he alleges—

“That the said Levy having sought to give the Fourth Justice Court jurisdiction of any demands against your defendant, by remitting any amount that your defendant might be owing or demanding less than was due him, has remitted any overplus that your defendant may have owed the plaintiff, and the plaintiff cannot now bring a demand for such overplus, having demanded less than was due him in his action in the said Justice Court and having brought suit for less than was due him, loses his right to recover any balance that may have been due.”

Defendant grounds bis defense, as set out above, upon Article 91 of tbe Code of Practice, wbicb reads, in part:

“But if one, in order to give jurisdiction to a judge, demand a sum below tbat wbicb is really due him, be shall be presumed to bave remitted tbe overplus.”

And Article 156, wbicb reads:

“If one demand less than is due him, and do not amend bis petition, in order to augment bis demand, be shall lose tbe overplus.”

Tbe facts disclosed by tbe record are tbat plaintiff is a merchant and during the year 1918 sold goods and supplies to tbe defendant on open account. At the end of tbe year, after receiving credits due him, defendant owed a balance on tbe account of that year amounting to $44.19.

He continued to buy goods from plaintiff through the year 1919 on open account as in tbe year 1918. At tbe end of tbe year 1919 be owed a balance for tbat year of $144.38, making a total indebtedness of $188.57. '

On December 31, 1919, both accounts were closed by notes, the defendant executing one note for $44.19 and one for $144.38. These notes were dated December 31, 1919, and were made due and payable on tbe same date, to-wit: October 15, 1920.

In September, 1924, nearly four years after tbe notes were due, plaintiff brought suit before a Magistrate to collect tbe smaller note and obtained judgment.

More than a year later be brought tbe present suit in tbe District Court.

Tbe sole defense is tbat plaintiff having brought suit on tbe notes for tbe less amount cannot now maintain an action on tbe other note.

We do not think tbe defense is good.

It is true, as argued by counsel for defendant, wbicb argument is supported by numerous authorities wbicb be cites, that a creditor is not permitted to split up or divide one debt for tbe purpose of conferring jurisdiction upon a court of inferior jurisdiction and thereby bring on a multiplicity of lawsuits and harass and embarrass bis debtor. But tbat is not the case here. Tbe creditor did not divide tbe debt in order to give tbe Magistrate court jurisdiction. That’ is evident from tbe fact tbat be took one note for an amount within tbe jurisdiction of tbe^ Magistrate court and tbe other above tbat jurisdiction. If be bad taken two notes, each for one-balf of tbe total amount due, each would bave been within tbe Magistrate’s jurisdiction and it might be argued that bis purpose in taking two notes was to give tbe Magistrate jurisdiction.

But suppose it be conceded tbat plaintiff did intend by taking two notes to confer jurisdiction on tbe Magistrate in on'é case, tbe debtor cannot .complain because be consented thereto by executing two notes. The act of tbe debtor in giving two notes to close tbe account was purely voluntary. There is not even a suggestion tbat be was coerced or unduly influenced to give two notes instead of one. Tbe debtor himself divided tbe debt and gave two notes.

These notes were separate and distinct' entities. Each evidenced an obligation to pay tbe amount stipulated therein. Tbe owner of tbe notes bad two separate causes of action, one on each note, two separate and distinct demands.

Under Article 148 of tbe Code of Practice tbe creditor could have cumulated these actions in tbe same demand, but be was not compelled to do so. Tbe Code provides that “separate actions may he cumulated” not that they must be.

When a creditor has two separate demands or causes of action, as the plaintiff had in this case, he is not bound to include in one action all the claims he has against his debtor under the penalty of being held to have remitted those he has not included. If he holds several notes, he may sue on them separately.

But there is another angle to this case.

Counsel says that defendant owed but one debt when he signed the notes on December 31, 1919. It is admitted that defendant purchased goods from plaintiff .upon open account during the year 1918 and that at the end of that year he owed a balance on that account of $44.19. He likewise purchased goods on open account in the year 1919 and at the end of that year owed a balance on the account of 1919 of $144.38. The notes given correspond exactly with the amounts of these ¡balances. It is therefore evident, in fact Mr. Levy says that, these notes were given to close the balances. The small note was evidently given to close the account of 1918 and the larger one to close the account of 1919. These were separate debts. There were two balances.

Counsel says the balance for 1918 was carried over and merged into the account of 1919 so that at the end of 1919 there was one balance of $188.57.

But the record does not show that. On the contrary, it is evident that both plaintiff and defendant considered that there were two debts, one for the balance of 1918 and the other for the balance of 1919, and separate notes were given to close these balances.

We have read and considered the cases cited by counsel for defendant. None of them support the contention that under the facts in this case plaintiff lost his right to sue on the note here involved by virtue of his having brought suit on the smaller note in the Magistrate’s court.

Judgment affirmed with costs.


text:
    No. 2576
    Second Circuit
    BROWN v. ROBERSON, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.).
    1. Louisiana Digest — Marriage—Par. 192, 199, 202, 260, 262.
    “Creditors whose claims arose subsequent to a judgment of separation of property between husband and wife, cannot contest the correctness or validity of such judgment, except at least, for absolute nullities.”
    2. Louisiana Digest — Marriage—Par. 199, 202, 203, 260, 262.
    Failure to publish a decree of separation of property is not such a nullity as subsequent creditor can raise unless such failure to publish decree has injured creditor.
    Appeal from the Second Judicial District Court, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by D. E. Brown, Jr., against E. C. Roberson, et al.

      There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    P. E. Brown, of Arcadia, attorney for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellees.
   WEBB, J.

The plaintiff, D. E. Brown, Jr., owner of a judgment rendered in his favor against E. C. Roberson, on July 20, 1914, and revived in March, 1924, brings' this suit against E. C. Roberson and his wife, Mrs. P. J. Roberson, to have a judgment of separation of property rendered on March 6, 1903, in favor of Mrs. E. J. Roberson, against her husband, E. C. Roberson, annulled, and to subject to the payment of his judgment certain immovable property alleged to have been purchased by Mrs. Roberson on December 7, 1917, April 24, 1919, and. April 9, 1921, by having the said property declared to belong to the community.

The defendant filed an exception of no cause of action, which was referred to the merits, and then filed a plea of prescription of one year, which was tried and sustained, and judgment rendered dismissing plaintiff’s suit at his cost, from which he appeals.

In presenting the cause here, both parties have, in argument and in their briefs, considered the exception of no cause of action as well as the plea of prescription, and we assume that they desire that we should pass upon both of the exceptions.

While the objective of the plaintiff is to subject the immovable property alleged to have been acquired by Mrs. Roberson subsequent to the decree of separation to the payment of his judgment, it appears to be conceded that such objective cannot be attained in the present case, without having the decree of separation of property annulled, as it is argued that the separation being null and void the community was not dissolved by the decree of separation but continued to exist and the property purchased in the name of the wife fell into the community and became liable for the debts of the husband, the head and master of the community; and from this point of view we consider the exceptions.

The statement previously made indicates that the parties admit that plaintiff was not a creditor of the husband at the time the decree of separation of property was rendered, and the ground on which plaintiff attacks the decree are, in substance, that the judgment was rendered by collusion between Mrs. Roberson and her husband, E. C. Roberson, to. defraud and shield the property of the husband from pursuit of his creditors, and especially the plaintiff; that the husband, E. C. Roberson, was not indebted unto his wife before or at the time of the judgment, and that she had not owned separate property as shown by the judgment, nor as shown by a certain act of datien en paiement, which was a simulation and fraud; that the pretended judgment had not been recorded or published and was without effect, and, further, that the parties had disregarded the judgment, the. husband holding himself out as the head and master of the community.

Considering the allegations with reference to the exception of no cause of action, we are of the opinion that the allegation that the judgment was rendered by collusion between the husband and wife to defraud and shield the community property from the creditors of the. community, and especially the. plaintiff, should be ignored in view of the fact that plaintiff was not a creditor of the husband at the time, the judgment of separation was rendered.

In Hanney vs. Maxwell, 24 La. Ann. 49, in which the syllabus reads:

“To enable a judgment creditor to maintain a seizure of property held by the wife as her separate estate, under a judgment of separation, on the allegation that the judgment of separation was collusive, and rendered in fraud of the rights of the seizing creditor, the seizing creditor must show affirmatively that he was a creditor at the. time the judgment of separation was ■ rendered”

the court in substance said that the seizing creditor did not prove or even allege that he was a creditor at the time the judgment of separation was rendered, and it was therefore logically impossible for him to establish his allegation that it was rendered by collusion to defraud him, and consequently while there is a presumption that á community of acquets and gains exists between married persons residing in this state, it provides that the. wife may demand a separation of property or the dissolution of the community under certain circumstances (Arts. 2425, et seq. C. C.), and when such circumstances exist the wife may pursue her legal rights or course without any foundation for a charge of fraud against her by persons subsequently dealing with the husband, and this would be true although as to the husband, as well as the persons with whom he subsequently deals, it may have been better for the wife to have refrained from exercising her¡ legal right.'

The plaintiff being a creditor subsequent to the decree of separation could attack the decree only for absolute nullities.

“Creditors whose claims arose subsequent to a judgment of separation of property between husband and wife, cannot contest the correctness or validity of such judgment, except, at least, for absolute nullities.” (Brown vs. Smythe, 40 La. Ann. 325, 4 So. 872; also Lewis vs. Peterkin, 39 La. Ann. 780, 2 So. 577; Dinkgrave vs. Norwood, 10 La. Ann. 564; Morris vs. Williams, 6 La. Ann. 391).

The allegation that the husband was not indebted to the wife in any amount at the time the decree was rendered, if such an indebtedness was the sole ground of the suit and basis of the decree, would be such a nullity as could be urged by a subsequent creditor.

However, the law does not restrict the right of the wife to demand a separation of property from her husband when his affairs are in a disordered condition, to the case where he is indebted to her; but she may obtain such a decree on other grounds, as where she has separate property of which she desires the administration. (Chaffe vs. Porcheimer, 35 La. Ann. 505), and in plaintiff’s petition it is alleged that the wife did have some separate property and that her husband was insolvent, and we think it will be presumed that the decree was rendered on such grounds in default of any allegations that the decree of separation of property was based on the sole ground of an indebtedness due by the husband to the wife.

The law does not require that the decree of separation must be recorded, and in Brown vs. Smythe, supra, it was held that the failure to publish the decree was not such a nullity as a subsequent creditor could ra-ise, unless the failure to publish had injured the creditor, and as there is not any allegation that the failure to publish the decree injured the plaintiff, these specific grounds of attack do not show a cause of action.

We are therefore of the opinion that the petition failed to state a cause of action, and that the exception was good and should have been sustained; and this view of the cause renders it unnecessary to consider the plea of prescription.

The judgment appealed from is therefore affirmed,.


text:
    No. 3045
    Second Circuit
    TREMONT LUMBER CO. v. DAVIS BROS. LUMBER CO., LTD.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Surveyors and Surveys — Par. 4, 5, 24.
    The burden of 'proof placed on plaintiff to prove his case is discharged where the results obtained by his surveyor who correctly established the corners and section line are in his favor, al-. though another surveyor who could not prove his corner and section line correct testified to the contrary.
    2. Louisiana Digest — Timber—Par. 1, 15.
    One who cuts timber after first asking the one from whom he purchased it where the property line is, does not cut it in bad faith if he happens tQ have been misguided by the seller of the timber.
    3. Louisiana Digest — Timber—Par. 15.
    One who, in good faith, cuts timber that does not belong to him, is liable to the owner for the stumpage value of the timber.
    Appeal from the Eighth Judicial District Court, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by Tremont Lumber Company against Davis Brothers Lumber Company, Limited.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. W. Oglesby, of Winnfield, attorney for plaintiff, appellee. .
    Dhu Thompson, of Ruston, attorney for defendant, appellant.
   ODOM, J.

Plaintiff owns the NE% of NE% of Section 32 Township 12 North Range 3 West.

Defendant owns the forty acres adjoining it on the north, or SE% of SE% of Section 29, same township and range.

While cuttirig timber, on its forty acres in Section 29, the defendant crossed over the line into Section 32 and cut 13,858 feet of cypress and 40,635 feet of gum and oak from a strip running east and west on the north side of the NE% of NE% of Section 32 belonging to plaintiff.

Plaintiff brought this suit for $955.98, alleging that defendant cut the timber in bad faith and that it should pay for timber at $25.00 per thousand for the cypress and $15.00 per thousand for the gum and oak, this being the alleged manufac-' tured value.

Defendant denied that it had cut any timber across its line on plaintiff’s land.

The lower court found for plaintiff and awarded judgment for the stumpage value of the timber which it found was $8.00 per thousand, holding that defendant cut the timber in good faith.

Defendant appealed, and plaintiff answered the appeal asking that the judgment be increased to the amount prayed for.

This suit is the sequel to a dispute between these lumber companies over the correct location of a land line. If the line is located where plaintiff thinks it is, defendant is due the amount claimed, provided the timber was cut in bad faith. If it is located where defendant thinks it is, then nothing is due. So we must determine from the evidence which party is correct as to the location of the line.

We have read the voluminous record and conclude, as did the District Judge, that plaintiff’s contention as to the location of the line is correct. We also concur in his holding that the timber was cut by defendant in good faith and that it is due to pay only the stumpage value, and that a valuation of $8.00 per thousand, as found by him, does justice to both parties.

The main" controversy in this suit is over the location of the east and west line between the SEÍ4 of SE14 of Section 29, owned by defendant, and the NE14 of NE1^ of Section 32, owned by plaintiff.

Plaintiff contends that the correct line is the one established by Mr. W. F. Duffy, a civil engineer and licensed surveyor, while defendant relies on a line established by Mr. J. L. Dark, another surveyor.

This is not an action of boundary. Neither side asked the court to have the boundary line between their respective properties fixed according to the rules laid down in the Code, Articles 823, et seq. But they rely upon lines fixed by surveyors who were called as witnesses and who testified.

We must decide the case therefore upon the record as we find it.

The line relied upon by plaintiff was established by Mr. W. P. Duffy. Mr. Duffy is a graduate engineer from the University of Wisconsin and has had twenty-two years experience as a surveyor. In 1910 there was a suit between the Winn Parish Lumber Company and the Little River Lumber Company involving the location of certain lines and corners in the vicinity of this land and especially the location of the common corner of Sections 28, 29, 32 and 33.

In that suit the court appointed Mr. Duffy, Mr. Cookston and Mr. McCain, two other surveyors, to locate the lines and corners. They located the common corner of Sections 28, 29, 32 and 33, and made report to the court. Mr. Dark, whose line is now relied upon by defendant, was with the surveying party at the time, and while Duffy testified in the present suit that Mr. Dark agreed with him that the corners and lines then found and established were correct, yet Dark testified that he did not.

It seems that Mr. Cookston, now parish surveyor of Winn Parish, did not altogether agree with Duffy as to the location of the corners, but we find from Mr. Cookston’s testimony in the present suit that he did not seriously disagree with Mr. Duffy on any material point involved in the present suit.

After this suit was filed Mr. Duffy was employed by plaintiff to resurvey the land 'and especially to locate the line between the SE1^ of SE% of Section 29 and the NE% of NE% of Section 32.

In making the original survey in 1910 he had before him the original field notes and plat made by John Densmore who made the survey for the Government in 1813. The Densmore survey and field notes are referred to and apparently relied upon by all the surveyors. When Mr. Duffy made his resurvey in 1925, he had before him his survey and note's made in 1910, which he followed.

In making the survey of 1910, Duffy and the others could find no evidence of the establishment of the common corner between Sections 28, 29, 32 and 33. In order to establish that corner they began on the township line between townships 11 and 12, which is the south boundary line of Sections 32 and 33 and one mile south of the common corner of Sections 28, 29, 32' and 33. They found evidences of the town township line as established by Bensmore, but the corners of the sections on the township line were not easily located.

In order to get a starting point, they tried to locate the corner on that line between Sections 32 and 33. They found from the old field notes that this corner was marked by a holly tree in the bed of a creek. But the holly tree, which it seems they found, there, was not in the bed of the cregk, the inference being that the channel of the creek had changed.

In order to cheek this corner, they ran east on the township line. From the original field notes they found that the quarter section corner on the south line of Section 33 (on the township line) was marked by two pine trees. They did not find the pine trees but did find the stump of one of them and a stump hole indicating the location of the other. These corresponded with the field notes. All the surveyors, including Dark, agreed upon this fact.

Having definitely established, as they considered, the quarter section corner on the south line of Section 33, they took that as a starting point, and in order to locate definitely the corner between Sections 32 and 33, known and referred to as the “holly tree corner,” they ran back west on the township line one-half mile and established the section corner, or the southwest corner of Section 33 and the southeast corner of Section 32, or the “holly tree corner.”

From the corndr thus established they ran north one mile, establishing the section line between Sections 32 and 33 and established the common corner between Sections 28, 29, 32 and 33.

In running this line north between Sections 32 and 33, they found evidences for the first half mile of the old line, which old line corresponded with the one they ran; but for the second half mile, or on the north end, virgin timber had been cut and they found no evidences of the original line.

None of the surveyors, Mr. Dark included, question the fact that in running the north and south line between Sections 32 and 33 they started on the township line or on the south line of Sections 32 and 33, and the fact that they ran •exactly one mile north is not disputed.

Therefore, the common corner of Sections 28, 29, 32 and 33 as located by Duffy is unquestionably one mile north of the township line, and that is where it should be.

Mr. Duffy, in order to locate the line between the SE% of SE% of Section 29, owned by defendant, and the NE% of NE% of Section 32, owned by plaintiff, ran due west from the common corner of Sections 28, 29, 32 and 33, establishing the east and west line between Sections 29 and 32. This east and west line is parallel with and exactly one mile north of the township line between townships 11 and 12.

So it seems to us that Duffy’s east and west line between the properties is the correct line, unless the sections bordering on the township line are short. But according to the rules followed by the Government surveyors the sections in the south part of townships are all full. According to the rule, the township lines were first established, and in dividing the townships into sections the surveyors began on the south and ran north and if there was any shortage it was taken off the north tier of sections.

Coming now to the line between the properties as established by Mr. Dark, the one relied on by defendant, we find that as a starting point he took what he says was the established corner at the southwest corner of Section 16, two miles north of the common corner between Sections 28, 29, 32 and 33. He ran, he says, two miles south. If he had a correct starting point his two-mile line should have stopped on the east and west line between Sections 29 and 32 established by Duffy, for, as stated, Duffy’s line was one mile north of the township line.

But Dark’s line ran across Duffy’s line and ended over in Section 32. He established a corner at the end of his two-mile line, and in order to get the line between these properties he ran west from his corner, thereby making his east and west line run to the south of Duffy’s east and west line.

The timber between these two lines on the north edge of the NE% of NE% of Section 32 is that in dispute. When the defendant cut its timber on the- SE1^ of SE% of Section 29 it cut down to Dark’s line.

We think the Duffy east and west line is the correct one, because, as stated, he started on the township line and ran one mile north for a starting point. There is no question but that he started on the township line and that he ran one mile north. His survey was made with the assistance of Dark, Cookston and others.

However, the testimony does not satisfy us that Dark had an established corner to start with. He says he started from the southwest corner of Section 16, and while he says that was an established corner, yet he does not say he had anything to prove that, either from the field notes or otherwise. He says the field notes called for a post oak as a bearing tree at the southwest corner of Section 16, but he does not say that he found that tree or any stump or stump hole or anything else to indicate its location.

With reference to the location of this corner he was asked:

“Q. You stated that you know the southwest corner of Section 16 is an established corner, who told you?
“A. Mr. Radescich is the man that carried me there.
“Q. What did the original field notes call for?
“A. Post oak — I could not tell you all, get the field notes, they will tell you.
“Q. You say somebody else told you that this was the correct corner?
“A. As far as the evidence goes it showed me the corner to start from.”

So far as any definite information 'is concerned, about all Mr. Dark had as to the corner from which he started was what Mr. Radescich told him. Mr. Radescich was eighty-two years old at the time of the trial and had lived in that community all his life and said he was familiar with all the land lines, and we have no doubt that he showed Dark what he understood to be the corner.

But the corner was not established with legal certainty. Mr. Dark did not attempt to check the corner by running either north, east or west in search of evidence. On the contrary, Mr. Duffy and those who assisted him did check the quarter section corner in Section 33 on the township line with the field notes, and found evidence of the bearing trees called for by the notes. In addition to that, they found other evidences of the township line as established by Densmore in 1813.

Counsel for defendant says that the “holly tree corner” was not correctly located by Duffy, that he placed it on the east bank of the creek and not in the creek.

Duffy himself said that his location of that corner was several steps from the bed of the creek as it ran in 1910, but accounts for that by saying that the channel may have changed during the ninety-seven years which elapsed between the original survey by Densmore and his survey in 1910.

But be that as it may, the outstanding and undisputed facts are as disclosed by the record, that Duffy started on the township line at the “holly tree corner” as he located it and ran one mile north in order to locate the east and west line between Sections 29 and 32. The pivotal point in this case is the correct location of the line between Sections 29 and 32, for that is the line in dispute. The fact that he may have located the “holly tree corner” a little too far to the east on the township line has but little, if any, relevancy. Thé main and relevant point is whether he stopped at the right place when he ran one mile north, for the point where he stopped determines the correct location of the east and west line between Sections 29 and 32, and that is the line in dispute.

The testimony convinces us that Duffy’s line is correct.

Through necessity, civil engineers and surveyors are, perhaps, the most technical of all professional men. This voluminous record teems with technical explanations of the different surveys, with copies of field notes, legend and history. But no useful purpose would be subserved, we think, in a further discussion of the evidence.

Plaintiff has discharged the burden laid upon him in eases of this kind of establishing its line.

We do not think the timber was cut in bad faith. When defendant cut it, it sought Mr. Weems, from whom it had purchased the land. Weems pointed out the line established by Mr. Dark, and defendant was guided by that.

Por the reasons assigned, the judgment appealed from is affirmed with costs.


text:
    No. 2543
    Second Circuit
    ALEXANDER HAMILTON INSTITUTE v. MADDEN
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 79, 84.
    The purchaser of books, where the seller is not guilty q£ any misrepresentation, fraud or deceit, cannot take advantage of his own wrong by refusing to read the books, returning them to the seller and refusing to pay for them.
    2. Louisiana Digest — Accord and Satisfaction — No. Par.; Obligations — Par. 9.
    Accord and satisfaction is something more than an undertaking by one party to do or perform something; the other party must accept, otherwise there is no contract.
    Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    Action hy Alexander Hamilton Institute against J. H. Madden.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    H. Y. Booth, of Shreveport, attorney for plaintiff, appellant.
    L. Percy Garrot, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

On January 5, 1923, the defendant, under written contract, agreed to enroll with plaintiff for a “Modern Business Course and Service” extending over a period of two years, the service to he rendered hy plaintiff to include twenty-four text hooks or hound volumes, modem business talks, directing the reading of the text, one to be issued every two weeks, modern business lectures, one every month, and modern business service, consisting of answers to all inquiries in connection with the course, these latter consisting of written or printed letters or answers to be mailed regularly to defendant by plaintiff during the entire course of two years.

For all the books and service to be rendered by plaintiff, defendant agreed to pay $136.00. He paid on the contract $26.00, leaving a balance due of $110.00. After some six weeks from the date on which the books were received and the plaintiff had begun to send out the instructions and circulars provided for in the written contract, defendant returned the books to plaintiff, at the same time writing plaintiff, he says, in substance, “I am returning the books and I wish you to accept them in full payment of my contract with you.”

When the books and the letter were received by plaintiff, it replied by letter dated April 19, 1923, that the books had been offered for delivery, but as no reason was given for their return and as the books were defendant’s property, plaintiff would hqld them “subject to your order and to be returned to you at your direction.”

Plaintiff brought the present suit to recover $110.00, the balance due under the contract.

The defense set up in the answer is that “plaintiff misrepresented the books, course, and service to him” and that he signed the contract sued on “under misrepresentation” and that “the books were not of the kind represented to him, and that the lectures, instructions, and service were inferior to the lectures, instructions and service plaintiff represented it would send and give to him.”

It is further alleged in the answer that defendant kept the books about six weeks and returned them in full “accord and satisfaction” of the claim against him, “surrendering at the same time his right to lectures, instructions and service.”

There was judgment in the lower court rejecting plaintiff's demands and it appealed.

The judgment appealed from is manifestly erroneous. There is no proof whatever that plaintiff was guilty of any misrepresentation, fraud or deceit. It agreed to render -the defendant certain services, which included the delivery of certain books, on business methods, together with printed matter in the way of lectures and instructions on business matters and methods, and answers to questions with reference to business problems, and the representation which it made was that a reading of the books and study of the course as outlined would improve defendant as an accountant and render him more efficient in his line of work.

There is no direct proof and nothing from which we may draw the inference that defendant would not have been improved and benefited by reading the books and following the course outlined by plaintiff, for all of which defendant bound and obligated himself to receive and follow.

Defendant received the twenty-four books, but did not read them. He says that he read only five of them and that the reading of the five was only partial or casual and by no' means thorough. The course was to continue over a period of two years, but he refused to read the books and returned them and surrendered at the same time, so he alleges in his answer, “his right to the lectures, instructions, and service” at the end of six weeks.

As a witness in his own behalf, defendant said:

“I could not find or did not learn any- ' thing from the books that would have been of any practical use to me.”

How could he learn anything from the books if he did not read them?

He, of course, could learn nothing from the course and could not be benefited by it unless he followed it, which, he says, he failed to do. His failure to receive the benefit was due to his own neglect and not to any misrepresentation by plaintiff.

Plaintiff’s representation that defendant would gain advantage from the course and defendant’s enrollment for the same necessarily implied acceptance of the instructions offered and some effort on defendant’s part.

At the time the case was tried, in May, 1925, defendant was note-teller in the City Savings Bank & Trust Company of Shreveport and he classified himself as a “bank clerk” and he said as the course was one in “accounting” he saw nothing in it which would benefit him in that capacity.

But we note that at the time he made and signed the contract, on January 5, 1923, he resided at Haynesville, Louisiana, and was then cashier of(the Home Trust & Savings Bank. When he made the contract he no doubt thought the course would help him in his capacity of cashier of the bank, which involves knowledge of accounting. Just when he changed positions and came to Shreveport is not stated, hut it is possible that when he made the change and became a bank clerk or note-teller he reached the conclusion that the course would not benefit him in that line, which may account for his refusal to carry out his contract.

But, be that as it may, the fact is that there is no proof that plaintiff misrepresented the facts or was guilty of any deception, and defendant has offered no good reason why he should have' defaulted on his contract to pay for what he ordered.

It is admitted that the books were all delivered as ordered, and while defendant says he received only part of the printed matter in the way of lectures and instructions, plaintiff’s witnesses testify that they were all mailed to him as per the contract.

By the terms of the written contract, signed by defendant, he obligated himself to pay for the books and the course. Plaintiff fulfilled its part of the contract, which specifically provides: “This contract is not subject to revocation. No reduction or allowance will be made on account of refusal or inability to enter upon o,r continue the course.”

Defendant breached the contract by refusing to continue the course. No one can take advantage of his own wrong.

State ex rel. Belden vs. Burgess, 23 La. Ann. 227.

Lloyd vs. Dickson, 116 La. 90, 40 So. 542.

Defendant pleads that he tendered to plaintiff the books which he had received “in full accord and satisfaction of the amount due under the contract.”

“An accord is an agreement whereby one of the parties undertakes to give or perform and the other accepts in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than what he is or considers himself entitled to, and a satisfaction is the execution of such agreement.”

1 C. J. 523.

Defendant returned the books to plaintiff and surrendered his right or claim to further instruction, and he calls that “accord and satisfaction.” Accord and satisfaction is something more than an undertaking by one party to do or perform something; the other party must accept, otherwise there is no contract. An accord is an “agreement,” and a “satisfaction” is the execution of such agreement. There was no agreement.

Without consulting plaintiff, defendant returned the books. Plaintiff refused to accept them in satisfaction of the claim and so notified defendant immediately.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and it is now ordered, adjudged and decreed that the plaintiff, Alexander Hamilton Institute, do have judgment against and recover from defendant J. H. Madden the full sum of one hundred and ten dollars ($110.00) with interest at 5% per annum from judicial demand and all costs.


text:
    No. 2538
    Second Circuit
    GOLDMAN v. SUGAR BROTHERS CO., LTD., ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Marriage—Par. 158, 159.
    Under Art. 2402 of the Civil Code property purchased during the existence of the community is presumed to be community property and the wife asserting the ownership as against the creditor bears the burden of pleading and proof to show that the property was purchased with her separate funds and that she had separate property to pay the credit portion of the purchase, price.
    2. Louisiana Digest — Marriage—Par. 158, 159.
    Where the evidence does not show that property purchased in the name of “Mrs. Goldman and husband, G. H. Goldman, who joins and authorizes his wife herein,” was purchased with separate funds of Mrs. Goldman, the property is community property.
    3. Louisiana Digest — Attorneys—Par. 70; Injunction — Par. 93, 97.
    Where there is no evidence of attorney’s fees nor of the amount of judgment, execution of which was enjoined, there is no basis for allowance of attorney’s fees or statutory damages.
    Appeal from the Second Judicial District Court, Parish of Bienville. Hon. John S. Richardson, Judge.

      Action by Mrs. Ida Goldman against Sugar Brothers Co., Ltd., et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Foster R. Taylor, of Arcadia, attorney for plaintiff, appellee.
    McHenry, Montgomery, Lamkin and Lam-kin, of Monroe, attorneys for defendants, appellants.
   WEBB, J.

The defendant, Sugar Brothers Company, Limited, having a judgment against G. H. Goldman, seized certain real estate and was advertising the same for sale to pay the judgment, when Mrs. Ida Goldman, plaintiff (wife of G. H. Goldman) filed the present suit, alleging that she had acquired the property seized under deeds from D.-M. Atkins and J. B. Bryant, respectively, with her separate paraphernal funds which had been donated to her by her father, J. B. Bryant, and that her husband, whose name appears in the deeds under which she had acquired the property, appeared solely for the purpose of authorizing her to purchase the property, and that he was not in any way interested in the purchase of said property, and that the said property was her separate paraphernal property, and not subject to the payment of her husband’s debts, and prayed for and obtained a temporary injunction restraining the defendant and the sheriff from selling the property, and for judgment sustaining and perpetuating the injunction, and decreeing her to be the owner of the property.

The defendant answered, pleading, in effect, a general denial and praying that plaintiff’s demands be rejected and her injunction dissolved, and on trial judgment was rendered in favor of plaintiff, maintaining and perpetuating the injunction, and decreeing the property seized to be the separate property of the plaintiff, and not liable for the debts of the husband, and ordering possession delivered to plaintiff, from which judgment defendant appeals.

OPINION

On trial, plaintiff offered in evidence two deeds conveying the property seized by defendant, in one of which D. M. Atkins declares that he sells to “Mrs. Ida Goldman and her husband, G. H. Goldman, who joins and authorizes his said wife herein,” and in the other J. B. Bryant declares that he sells to “Mrs. Ida Goldman and husband, G. H. Goldman, who joins and authorizes his said wife herein,” both instruments being under authentic act, and passed on the same date, and both being signed by all parties; the consideration stated in the first being one hundred and fifty dollars, represented by seventy-five dollars cash aqd one note for seventy-five dollars, and in the second the consideration being three hundred seventy-five dollars cash.

The plaintiff, Mrs. Goldman, was called as a witness and was asked to explain the deeds, that is, to show her husband was not one of the vendees, and an objection being made that parol evidence was inadmissible to show title to real estate, or to vary, change or alter the written instruments, and further, that the evidence was not admissible under the pleadings, it not being alleged that there was an error in the deeds showing the vendees, she was not permitted to explain the declaration as to the vendees, but over the same objection she was permitted to state that the purchase from D. M. Atkins was made with money she had made in Waco, Texas, and that the apparent purchase from J. B. Bryant was in fact a donation.

The plaintiff urges that the court erred in refusing to permit her to show that her husband appeared only for the purpose of authorizing her, and that he was not one of the vendees, and the defendant urges that the court erred in permitting plaintiff to show the manner the cash portion of the price of the property purchased from D. M. Atkins was paid, and to show that the apparent sale from J. B. Bryant was a donation; and, further, that the evidence was not sufficient to warrant the judgment declaririg plaintiff to be the owner of the property and that her demands should have been rejected and the injunction dissolved with attorney’s fees.

The theory of the plaintiff’s case appears from the pleadings and the course of the trial to have been, first, to show that the property was acquired by her alone, and then to show that it was acquired for her separate benefit.

Passing the question of the right of the wife to show by parol that the declarations in the acts of sale that the property was sold to “Mrs. Ida Goldman and husband, G. H. Goldman, who joins and authorizes his wife herein,” was erroneous and was intended to show a transfer to the wife alone, and conceding that she could have shown that the sales were made to her, yet the property having been purchased during the existence of the community, is presumed to be community property (Art. 2402, C. C.) and the wife asserting ownership as against the creditor bears the burden of pleading and of proof to show that the property was purchased with her separate funds, and where the act of sale, as in the case of the purchase from D. M. Atkins, shows that the price was partly on credit, she would also be bound to show that the property was ample security for the credit portion of the price or that her separate property was sufficient for the payment of same. (Fortier vs. Barry, 111 La. 776, 35 So. 900.)

The evidence does not show that the cash payment was with the separate funds of Mrs. Goldman, nor does it show the property was sufficient security for the payment of the credit portion of the price, nor that Mrs. Goldman had other property out of which the payment could be made, and we do not think the evidence warranted the judgment decreeing Mrs. Goldman the owner of the property acquired from D. H. Atkins.

As to the property acquired from J. B. Bryant, Mrs. Goldman was permitted, over defendant’s objection, as stated, to show that the transaction was a donation, and without considering the objection as to parol evidence, we think that the objection that plaintiff had not alleged that the transaction was a donation, should have been sustained, and thus there is not any evidence which would warrant the judgment decreeing Mrs. Goldman the owner of the property acquired from J. B. Bryant.

The judgment decreeing plaintiff the owner of the property will therefore have to be avoided, and the injunction dissolved, and this leads to the claims made in defendant’s brief for fifty dollars attorney’s fees.

The minutes show that a motion to dissolve the injunction was filed, tried and overruled, but the motion was not made a part of the record, and defendant in its answer does not claim either attorney’s fees or statutory damages, and there was not any proof of attorney’s fees, nor doe's the evidence" show the amount of the judgment execution of which was enjoined, and there is not any basis for allowance of the damages claimed.

It is therefore ordered that the judg ment appealed from be reversed and that defendant have judgment against plaintiff rejecting her demands and dissolving the writ of injunction, with costs.


text:
    No. 2566
    Second Circuit
    LUKENS STEEL CO. v. DYER
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Builders and Build-, ings — Par. 19; Mechanics’ Privileges— Par. 2, 12.
    Under Section 11 of Act No. 139 of 1922, a law regarding building contracts and liens, the seller of structural steel cannot hold the owner of the building liable where he sold same to another dealer who ■ thereafter resold to the owner of the building, the vendor not having furnished material for the owner or any contractor or sub-contractor.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Lukens Steel Company against F. L. Dyer.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for plaintiff, appellant.
    Cook and Cook, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff brings this suit to recover $2353.95, less a credit of $692.16, for a lot of structural steel which the defendant used in the erection of a building .in the City of Shreveport.

It is alleged that in May 1924, one P. H. Selser, proprietor of Selser Manufacturing & Sales Company of Shreveport, Louisiana, entered into a contract with F. L. Dyer, whereby “said Selser was to furnish 55,387 pounds of structural steel to be used.in the construction of the Dyer building” and that said Selser, in pursuance of said contract, ordered said steel from petitioner on May 22, 1924, and contracted and agreed to pay for same as per the itemized account attached to and made a part of the petition.

It is further alleged that—

“said Selser was by said contract the agent of defendant for the purchase of said steel and, in the alternative, if he was not the agent of defendant, said Selser occupied the position of a contractor with defendant in the construction of said building.”

Further alleging that said material was used in the erection of Dyer’s building, which was erected by him on his own account “without contract for the construction thereof or bond,” and that said material was not paid for, plaintiff claims that Dyer owes it for the material and that it has a lien and privilege on said' building and the lot on which the same is situated, for which it asks recognition.

It is alleged that the building was completed on or about July 31, 1924, and that on August 5, 1924, plaintiff filed in the mortgage office an affidavit setting forth its claim and served notice thereof upon the defendant.

The defendant, for answer, denied that he was due plaintiff anything, and alleged that he purchased said steel from the Selser Manufacturing & Sales Company through P. H. Selser, proprietor, and that he made payment for the same to the said Selser Manufacturing & Sales Company in accordance with his contract with it.

There was judgment in the District Court rejecting plaintiff’s demands and it prosecutes this appeal.

OPINION

F. L. Dyer, the defendant, owned certain lots in the City of Shreveport on which he erected a building on his own account, without letting a contract therefor.

For the construction of the building he needed some structural steel. P. H. Selser, who lived in Shreveport, sought the order for the steel in the name of Selser Manufacturing & Sales Cpmpany. He made the following proposal on a printed letterhead:

“Phone 6665 ‘We Sell It’ 217 Ardis Building SEL-SER MANUFACTURER’S SALES CO.
“F. L. Dyer Shreveport, La.
“F. L. Dyer,
“City.
RE: F. L. Dyer Building.
“We propose to furnish the following materials under the terms and conditions stipulated below, free on cars:
“All structural steel as shown on sheets Nos. 9, 7 & 8 including all H. Columns, I Beams, and connections, awning angles, angle lintels, awning rods, transom cast iron bases and bearing plates complete f. o. b. New Orleans, La. with full freight allowed to Shreveport, La-----------------$2485.00
“We are in a position to make immediately delivery of this material as we have same in stock and can start fabrication immediately.”
(Signed)
“SELSER MANUFACTURER’S SALES
By P. H. Selser.
“Accepted:
(Signed) “F. L. Dyer.”

This order was promptly filled, it seems, and, on June 18, 1924, a bill for the material was presented to Mr. Dyer on a letter-head similar to the above, except the phone number, is given as 6059, and the address is “104 Ardis Building,” Shreveport, La., and revites “Sold to F. L. Dyer, City.” Then follows a description of the material and amount, as above se.t out in fhe proposal. After crediting the amount for freight, a balance is brought down of $2201.64.

On the same day, June 18, 1924, Mr. Dyer made his check on the Continental Bank & TrusT Company of Shreveport as follows:

“Pay to the order of SelSer Mfg. Co.
$2201.64
Signed, F. L. Dyer.”

The check is endorsed as follows:

“SelSer Mfg. Co. Credit P. H. Selser account.”

The check was paid by the bank on the following day.

The Selser Manufacturer’s Sales Co. ordered the steel from the plaintiff which has its office and place of business in New Orleans. We find in the record a sales-sheet made out on plaintiff’s letterhead, reading, in part:

“Sold to P. H. Selser, Proprietor,
“Selser Manufacturer’s Sales Co.
“Shreveport, La.
“Order No________________ Date May 22nd, 1924. (With terms written in)
“1959-B. Structural Steel for Dyer Bldg,
“shipped to F. L. Dyer, Shreveport, La.
“55,387 lbs at $4.25________________________$2,353.95
“Less credit, by cash, 7-7-24________ 692.16

$1,661.79

By reference to the freight bill filed in the record, we note that the steel was shipped by the plaintiff to “Selser Mfg. Co.” at Shreveport. A witness for plaintiff testified that the steel was ordered shipped to F. L. Dyer but that through mistake it was shipped to Selser Mfg. Co.

Mr. Dyer testified that he knew no one in the transaction except the Selser Mfg. Co., represented by P. H. Selser, with whom he had all his dealings.

Mr. S. W. Gilbert, credit manager for the plaintiff company, was asked if F. L. Dyer, either verbally or in writing, had any dealings of any character with the plaintiff company with reference to the steel covered by the bill against Selser, and he answered:

“F. L. Dyer personally did not have any dealings with the Lukens Steel Company with reference to the steel covered by its bill annexed to the direct interrogatories.”

In answer to the following direct interrogatory propounded to him:

“The Lukens Steel Company filed a lien and privilege in the mortgage records of Caddo parish, Louisiana, against the F. L. Dyer building on August 5, 1924. Do you know anything about the filing of this lien and privilege and if so, state whether or not this lien and privilege was filed on the advice of your attorneys?”

Mr. Gilbert said:

“When it became evident that we were not to receive payment of our account from the Selser Sales Company, we placed the account in the hands of our attorney at New Orleans, Mr. Justin Y. Wolff, for his attention.”

As already noted, the plaintiff alleged that Selser was the agent of Dyer in the purchase of the steel and in the alternative, if he was • not the agent of Dyer, he “occupied the position of a contractor in the construction of the building.”

Plaintiff failed to establish by proof either the main or alternative allegation.

On the contrary, it is proved beyond question that the Selser Mfg. Co., through P. H. Selser, made a direct sale of the material to Dyer. The Selser Mfg. Co. proposed to sell the material, stipulating the kind, quantity and price, and this proposal was accepted by Dyer. Following this proposal and acceptance, the material was delivered and promptly paid for by Dyer.

It is also shown that Selser had nothing to do with the erection of the building, but, on the contrary, that Dyer himself purchased the material and erected it.

But counsel for plaintiff argue that inasmuch as the said material went into Dyer’s building and it, the plaintiff, has not been paid, it has a lien and privilege on the building and grounds as furnisher of materials, and it relies upon Section 11 of Act No. 139 of 1922 as granting such lien.

That section of the Act reads, insofar as it is necessary to quote the same, as follows:

“Whenever the owner * * * undertakes the repair, reconstruction, erection or construction of a building or any other work for .his own account or for which no contract has been entered into, then any person furnishing services or material or performing any labor on said building or other structure, may record in the mortgage office * * * a certified copy of the building permit or affidavit of claim or any other writing evidencing the same, which recordation shall create a lien and privilege upon the building * * * in favw of said contractor, * * * and furnishers of material, as their interests may arise, for a period of one year from the completion or acceptance of the building.”

Counsel for the plaintiff say in brief:

“We call the court’s attention to the fact that the section of the act just quoted (Section 11 of Act No. 139 of 1922) does not require any contract between the owner or builder and the furnisher of the material. The mere fact that the material is furnished for the building is all that the act requires.”

Counsel’s statement of the law is correct, because the law creates a lien upon buildings in favor of laborers who work in the erection of and those who furnish material for the construction of buildings.

But counsel’s conclusion that the defendant in this case is liable to plaintiff, is based upon the false premises that the plaintiff furnished material for the building. The premises upon which the conclusion is based being false, the conclusion is necessarily unsound.

The material which went into the building was not furnished by the plaintiff but by the Selser Mfg. Co. If the latter concern had not been paid for the material it would, of course, have a lien upon the building; but it was paid in full for the material as per the contract;

In bringing the suit, plaintiff proceeded upon the theory, as set out in the petition, that Selser was the agent of Dyer in the purchase of the material, and if not agent, then, in the alternative, that Selser was a contractor under Dyer.

Under those conditions or either of them Dyer would be liable for the unpaid balance due plaintiff.

But Selser was not the agent of defendant nor was he the contractor. He had nothing whatever to do with the erection of the building. Selser represented that his company was a dealer in building material and the record shows that Selser sought the order for the material by written proposal which was accepted by Dyer.

The transaction between the Selser Mfg. Co. and the defendant was a complete sale. There was the thing, the price and consent. The material was delivered by Selser and the price was paid by defendant. The Selser Mfg. Co. owned the material, which it had purchased from the plaintiff.

The transaction between the plaintiff and Selser constituted a complete sale of the material. The goods were ordered by Selser in the. name of his company, segregated from plaintiff’s common stock, billed out as sold to him, shipped and charged to him, and plaintiff finally received from him a partial payment on the bill.

There is nothing to indicate that plaintiff intended originally to look to Dyer for the bill. Mr. Gilbert, sales manager for plaintiff, testified:

“When it became evident that we were not to receive payment of our account from the Selser Sales Company, we placed the account in the hands of our attorney at New Orleans.”

The attorney, it seems, advised that plaintiff could hold Dyer for the bill.

Here is a case where a wholesale dealer in building material sold and delivered goods to another dealer and its vendee sold and delivered the .same material to a builder who paid the owner the price. All these transactions took place in the usual course and in the open market. The fact that plaintiff’s vendee failed to pay the price gives it no right to pursue the ultimate consumer of the goods under the building contract laws of the State, where the purchaser was himself an independent dealer and had no connection with the erection of the building as contractor or sub-contractor.

Counsel say that Dyer should have required Selser to produce a receipted bill for the material. We do not think so. Plaintiff sold its goods .to Selser and took chances on collecting from him. When he failed, it pursued defendant, who used them.

It is argued that Dyer knew or should have known that the Selser Mfg. Co. had no material of its own to sell and that he knew or should have known that the material was being ordered from another. There is nothing in the record to show that. But conceding that Dyer did know that Selser was to order the material from another, that would not destroy the fact, as disclosed by the record, that the Selser Mfg. Co. became the owner of it and sold it to him.

Plaintiff not having furnished the material for Dyer or any contractor or subcontractor, but having sold same to another who, in turn, sold it to defendant, has no claim against defendant or his property.

The judgment appealed from is correct, and is accordingly affirmed with costs in both courts.