text:
    No. 514
    First Circuit

    THERIOT v. CUTRER
    (December 3, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    James D. Womack, of Baton Rouge, attorney for plaintiff, appellee.
    Charles A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

This action sounding in damages is based on an alleged forcible and wrongful entry into a dwelling house on the part of the defendant, Bennie B. Cutrer, and the destruction or removal and loss to the plaintiff, Charles Theriot, of movable property belonging to said Theriot, situated therein at the time. The lot on which the house was situated, and of which it was part, had been previously delivered by Cutrer to Theriot under a contract of- sale. Theriot possessed and occupied it under the contract at the time.

The defendant denies that he broke the lock on the, door and forcibly entered. He avers that plaintiff had ' abandoned ’the house, and .that he arranged with a party to take possession- and to keep and watch the house at a nominal rental, in order to protect the insurance thereon. He denies that any property belonging to the plaintiff was destroyed or removed therefrom, and denies the alleged value thereof.

There is no question about plaintiff’s right to and possession of the property.

The question of defendant’s bad faith is put forward by the testimony, but we .do not see that it has any important bearing on the issue of the case. The forcible and wrongful entry by defendant is established. The back door through which he entered during plaintiff’s absence had not only been locked by the plaintiff, but he had, in addition, nailed a piece of wood against the door in such a way, that, although it might be unlocked, it could not be opened except by forcing. The defendant unlocked the back door with a key, but he does not claim to have received the key for the purpose from the plaintiff. And the evidence shows that he then forced it open, and in that way entered the house and delivered it to another person, in consideration of a nominal rent. And while it was thus open and in possession of the party whom the defendant had placed in charge of it, the property, to the value of $314.50 left there by plaintiff was taken out or destroyed, and was lost to the plaintiff.

The defendant attempts to excuse his act on the ground that the house had not been paid for and that it was insured, with the policy payable to himself, in order to secure the purchase price; that plaintiff’s absence therefrom had jeopardized the insurance on the house. The insurance policy was not produced nor offered in evidence, but the fact that it was issued and was payable to the .defendant was established. Without the policy we cannot say that plaintiff’s absence from the house had jeopardized same.

But, be that as it may, defendant had no right to break open and take forcible possession of the house, and rent it to another, as he did, without notice to the plaintiff, or some other authority for his act.

The defendant pleads and urges against plaintiff’s action the prescription of one year.

Defendant was cited in this suit on the 14th day of January, 1925. His entry took place on January 16, 1924, and plaintiff’s property was removed or destroyed the next day or a day or so thereafter.

The action is not prescribed.

Plaintiff’s delay in bringing suit is urged against him. We have considered plaintiff’s delay in filing suit, but the wrongful and forcible entry and the removal and destruction of plaintiff’s property in the house is, to our minds, clearly established. As for plaintiff’s delay to bring suit, it is sufficient to say that the action was not prescribed.

Defendant argues that plaintiff’s showing on the subject does not establish ■ that property worth $314.50 was destroyed or taken away.

Defendant did not go in the house to see what property was in it; he opened it and delivered it to another party.

The plaintiff says he had bills and receipts in the house at the time showing the price he paid for the articles destroyed; that his bills and receipts were all destroyed as a result of defendant’s entry. He produced and filed in evidence a copy of the list of the articles which he says he left in the house; the value of each item was set down. He says this list is correct, and that the values are true; that it was made by him previous to the time in question for the purpose of having the property insured. The list was therefore made at a time not suspicious. According to this list, plaintiff had property destroyed or taken away as the result of defendant’s conduct, worth the total sum claimed.

The district judge rendered judgment in favor of the plaintiff for that amount. The evidence supports the judgment of the lower court.

Judgment affirmed; defendant and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 605
    First Circuit
    VARNADO v. MEYER & NEUGASS CO.
    (March 5, 1930. Opinion and Decree.)
    Ott & Johnson, of Franklinton, attorneys for plaintiff, appellant.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff, alleging that he is the owner in indivisión, with Meyer and Neugass of a tract of land described in his petition, prays that the (property be sold to effect a partition by licitation.

An exception of no cause of action was filed by defendant and was referred to the merits. There is no merit in the exception which is hereby overruled.

Defendant also pleaded the prescription of ten years, claiming to be the owner of the land claimed by plaintiff, under a title translative of property.

The plea was maintained on the face of the papers, and the demand of' the plaintiff was rejected.

Counsel for defendant invokes article 3479, Civ. Code, in support of the judgment maintaining the prescription urged. That article of the Code prescribes, under 4 headings, the essentials required to establish that snecies of prescription.

The 3rd rule mentioned — among the other requisites pointed out in the article— reads, as follows;

“Possession during the time required by law, which possession must be accompanied by the incidents hereinafter required.”

The requisites referred to in article 3479 are set out in article 3487 in which it is stated, among other requirements, that the possessor must hold the thing in fact, and in right as owner, etc.; and that his possession shall have been continuous, peaceable, public, and unequivocal, etc.

Counsel for defendant says that the action of plaintiff being petitory, the possession of defendant is necessarily admitted. In a petitory action, plaintiff, it is true, admits that the defendant is in the actual possession of the immovable claimed, as is 'provided in article 2, C. P., which governs in such cases. This implied admission, however, does not include the recognition of the continuous, public, and unequivocal possession of defendant, in right, as owner, during the prescriptible period which must characterize the possession to constitute one of the essential requisites, under C. C., art. 3487.

There is nothing in the petition of the plaintiff, in the record or on the face of the papers to support the plea of prescription which defendant has tendered as a defense in support of his claim of title to the property claimed by plaintiff.

There are also other questions that are contested between the litigants in this ease but upon 'which we will not express any opinion one way or the other at this time. Those issues, and such as may arise hereafter, will remain open for future action should the case return to this court for adjudication.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided, annulled, and reversed; that this case be remanded for trial on the merits in accordance with law; that appellee pay the cost of this appeal, those below to abide the final decision of the case


text:
    No. 588
    First Circuit
    FOLSE v. HANNAGRIFF & EDMONDSON
    (March 5, 1930. Opinion and Decree.)
    Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    Milner & Porteus, of New Orleans, and Miller & Richardson, of Bogalusa, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff herein offered in evidence the record of proceedings for his emancipation which offering indicates resulted in a judgment rendered in favor of plaintiff in those proceedings.

No such record proceedings or judgment of emancipation were filed in this suit.

Under the motion to dismiss this suit urged by defendant, this court should have ■ the record of that emancipation suit to pass on the issue involved on the motion to dismiss.

It is therefore ordered that the Clerk of this court return the record in this suit to the Clerk of Court of the Parish of Washington for the filing of all the proceedings in the suit for emancipation filed by plaintiff herein; that the record of that suit be filed in the record of this suit by said Clerk and that he return same without delay to the Clerk of this court.

In the meanwhile judgment of this court will be suspended herein.


author: ELLIOTT, J.

text:
    No. 555
    First Circuit
    PELICAN WELL TOOL & SUPPLY CO. v. DICKSON
    (March 5, 1930. Opinion and Decree.)
    Moss & Seiss, of Lake Charles, attorneys for plaintiff, appellee.
    E. F. Gayle, of Lake Charles, attorney for defendant, appellant.
   ELLIOTT, J.

Pelican Well Tool & Supply Company sued John D. Dickson on a note confirming a judgment by default.

Dickson has appealed.

Defendant contends on appeal that the note is prescribed.

The record contains no plea of prescription filed by him in the lower court.

Such a plea could have been filed if he had wished to do so in this court. Code Prac., art. 902; Civ. Code, arts. 3464 and 3465. But none was filed. We therefore cannot consider his argument on the subject.

On its face the judgment appealed from appears to be correct and we see no reason for setting it aside.

Judgment affirmed. Defendant- to pay the costs in both courts.

LECHE, J., not participating.


author: WEBB, J.

text:
    No. 3520
    Second Circuit
    HUTCHENS v. MORGAN
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Hunter, Morgan & Hunter, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Brown, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

This is an action in damages for personal injuries sustained by plaintiff, P. D. Hutchens, when an automobile belonging to defendant, J. B. Morgan, in which plaintiff was riding, was, through the negligence of the driver of the car, W. R.' Gibbs, driven from the highway into a ditch, and plaintiff appeals from a judgment rejecting his demands.

Plaintiff alleged that at the time of the accident the automobile was operated and under the exclusive control of defendant’s agent and representative, W. R. Gibbs, and that plaintiff' was a guest and did not have control of the machine prior to or at the time of the accident, and the circumstances from which the alleged relationship arose, as well as the negligence of the driver of the car, are stated, in substance, to have been as follows:

That defendant's wife was very ill at Shreveport, where the parties resided, and that plaintiff, at defendant’s request, consented to go in defendant’s automobile to Natchitoches, where defendant’s daughter was attending school and return with her to Shreveport, and that W. R. Gibbs, who had been engaged by defendant to drive the car, had on the return trip driven the car from the roadway into a ditch at a point where the highway curved to cross a railroad track, and that the accident was due solely to the lack of attention and excessive speed at which the automobile was driven as it approached the curve, of which the driver had an unobstructed or clear view.

In answer, defendant admitted that plaintiff had undertaken to make the trip from Shreveport to Natchitoches and return, and that he had been injured on the return trip, and alleged the circumstances and purposes for which the trip had been made, -which materially differed with the allegations of plaintiff’s petition only insofar as to the relationship of plaintiff to the driver of the automobile and defendant, in that it was alleged that plaintiff had undertaken the trip as a guide and companion of W. R. Gibbs, and that he had control of the driver, and that the car had been driven in a reckless manner and at an excessive rate of speed.

On trial it was shown that plaintiff and defendant had married sisters, and that defendant’s • wife had been ill for several weeks, during which time her sister, plaintiff’s wife, had attended her constantly, and, on the afternoon preceding the accident, the physicians attending Mrs. Morgan advised defendant and Mrs. Hutchens that Mrs. Morgan was in a very critical condition, and defendant decided to have his daughter, who was at Natchitoches, which is about 75 miles from Shreveport, brought home to see her mother. And, when plaintiff called at defendant’s residence, which was apparently a short time thereafter, he was advised of the situation and offered to drive in his car to Natchitoches and bring defendant’s daughter to Shreveport, but it was decided that plaintiff’s car was not in condition, and defendant thought it best that his automobile should be used, and, W. R. Gibbs having volunteered to drive the car, defendant accepted his services, and plaintiff accompanied him on the trip.

They left Shreveport after dark, and it was shown that the car was driven at a rate of speed in excess of that fixed as the maximum rate by law, in going to Natchitoches, and that, due to the rate of speed, an accident had been narrowly averted on the trip to Natchitoches, and that on the return trip the same rate of speed was maintained, and it was shown that the accident which occurred on the return trip was due to the excessive rate of speed at which the car was being driven.

While it appears that, as the car approached bridges and curves, plaintiff would advise the driver, the evidence shows that plaintiff was fully aware of the excessive rate of speed at which the-car was being driven and of the danger, and it is admitted that he did not protest, the reason given by him for failing to protest being that he did not think it would have been of any use, which is not, we think, supported by the evidence.

Considering plaintiff’s case from the most favorable point of view, or that, under the arrangement made by defendant, plaintiff was merely a guest, the evidence shows that plaintiff knew Gibbs was operating the car at a speed in excess of the maximum rate fixed by the statute, and, it having been alleged and conceded that the accident was due to the excessive rate of speed at which Gibbs operated tb© car, and it being shown that plaintiff did not make any protest, we are of the opinion that he was guilty of negligence, even conceding that he was a mere guest. Berry, Automobiles (5th Ed.) 488; Blashfield, Automobiles, vol. 2, p. 1087; Harding vs. Jesse, 189 Wis. 659, 207 N.W. 708; Spring vs. McCabe, 53 Cal. App. 330, 200 P. 41.

The driver of the automobile was a much younger man than plaintiff, who was more familiar with the road, and Gibbs states that, if plaintiff had protested or requested him not to drive fast, he would have heeded the request, and no doubt that was true. It is not suggested that defendant had requested or instructed Gibbs to make all possible haste, or that he desired him to proceed without exercising ordinary care, and although it appears that the driver did not so proceed, it also appears that plaintiff, with full knowledge that the driver was not exercising care and of the danger, at least acquiesced in the course taken, and while it may be that, considering the emergency, neither the driver nor plaintiff could be censured, neither could hold the defendant liable for injury resulting from their voluntary actions or omissions.

The judgment is affirmed.


author: LEBLANC, J.

text:
    No. 537
    First Circuit
    HERNANDEZ v. LYONS ET AL.
    (March 5, 1930. Opinion and Decree.)

      P. L. Ferguson, of Leesville, attorney for plaintiff, appellant.
    S. I. Foster and A. B. Cavanaugh, of Leesville, attorneys for defendants, appellees.
   LEBLANC, J.

Plaintiff, Peter F. Hernandez, brought this suit for damages for physical injuries which he claims to have suffered by reason of having been run over by a Ford truck which was being driven by one of the defendants, Charnel Johnson.

Benson Lyons had also been made defendant on the theory that the truck belonged to him and Johnson jointly, and that it was being used for their joint business and interest on the morning of the alleged accident. On the day the case was tried, however, counsel for plaintiff moved for a dismissal of the suit as against Lyons, and Johnson remained as the sole defendant.

Plaintiff’s demand was for a judgment in the sum of $2,136.20, which the lower court rejected.

The evidence discloses the following facts: On the morning of December 24, 1927, the defendant Johnson had driven to the town of Leesville in the Ford truck, to meet his nephew, Thurston Johnson, who was waiting for him at a cafe. They seem not to have lost any time in leaving, and, as they did, drove out by way of West First street, which is paved. It was approximately 6:30 o’clock, not yet daylight, and there was frost on the pavement. At a point about thirty-two feet from the intersection of Texas avenue with West First street, the truck ran into the plaintiff. He was struck by the right front portion of the car, was dragged several feet, and, when it was brought to a stop, one of his legs was pinned under the right front wheel.

The plaintiff charges the defendant with negligence in driving the truck on the left-hand side of the street in violation of a city ordinance, in operating it without lights, and at a reckless and excessive rate of speed. The proof fails to sustain any of these charges.

There were only three eyewitnesses who testified. A fourth, referred to as “Uncle Bill” Maddox, had died before the trial. Of the three who testified, one was the plaintiff, and the two others the defendant and his nephew who was with him in the truck. These two testified that the truck was traveling at a rate of not more than fifteen miles an hour, with headlights burning; that, on arriving near the intersection of Texas avenue, they saw the plaintiff and Maddox about fifty feet ahead of them on their right, walking along side by side, one on the narrow footpath along the paved road and the other on the edge of the road itself; that, at a point about fifteen feet "from the corner at the intersection of Texas avenue, the plaintiff suddenly turned into the street and started to cross diagonally over to another path on the other side of the street which led to the Kansas City railroad shop where he was employed; that at the moment he started to cross over, the truck was within six or eight feet of him, and, though the defendant applied the brakes, swerved the car to the left, and did everything possible, he could not avert the accident.

We find nothing in the record which contradicts this evidence except the testimony of the plaintiff. His main contention seems to be that he was struck when he was within two feet of having reached the other side of the paved street, and that, to have run into him at that point, defendant necessarily had to be driving on the left side of the street. In support of this he produced a witness who testified that, about one hour after the accident, he picked up the plaintiff’s eyeglasses near the east or left edge of the street and saw evidence of something having been dragged along on that side for about thirty-two feet.

As against the positive testimony of the two occupants of the car that plaintiff was struck near the center of the street, a hit over the left of the center; the fact that he was struck by the front right-hand portion of the truck, which is seven feet wide, and his leg was pinned under the right front wheel when it was brought to a stop; and the fact also that the street was slippery from the frost that was on it and there must have been some skidding of the car on the application of the brakes, the testimony of this last witness has not much value as corroborative proof.

Plaintiff’s testimony of itself is not sufficient to sustain his claim.

We are inclined to believe that it was his own carelessness, as he seems to have admitted to other witnesses who testified, that was the cause of the accident and his injuries that resulted therefrom.

We are of the opinion that the district judge has correctly decided the issue of fact which was the only one presented in the case, and his judgment is accordingly affirmed.

LECHE, X, not participating.


author: HIGGINS, J.

text:
    No. 11,757
    Orleans
    DERBES, CABALLERO & MILLER v. CHECKER CAB CO.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Frymire & Ramos, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, an ordinary partnership composed of five partners, engaged in the business of general bookkeeping, auditing, and accounting in New Orleans, -sued the defendant on an alleged verbal contract for the sum of $200, representing the last installment due under the contract for general bookkeeping and accounting work performed for defendant during the month of March, 1925. Defendant filed a general denial, and on the day of the trial filed a plea of prescription of three years, which was referred to the merits by the lower court. There was judgment in favor of plaintiff for the full amount prayed for, and defendant has appealed.

The plea of prescription was not argued before this court, and counsel for the defendant has not cited any authority in support of it, except article 3538 of the Revised Civil Code. He does not point out why or what portion of the article is applicable here, but we assume that he refers to that part of it which reads as follows:

“3538. Three Years’ Prescription. The following actions are prescribed by three years: * * * Overseers, Clerks, Teachers by the Year or Quarter. That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences, who give lessons by the year or quarter.”

We fail to see where the above portion of the article of the Code is applicable, first, because this is a suit on a contract; and, second, because the kind of services rendered by plaintiff do not come within the provisions of the above article.

In the case of Union Title Guarantee Co. vs. Perkins,.5 La. App. 389, this court said:

“Prescription cannot be extended by analogy from one subject to another. Police Jury v. McDonogh, 10 La. Ann. 395; Cooper v. Harrison, 12 La. Ann. 632; Garland v. Estate of Scott, 15 La. Ann. 143; Flash, Hartwell & Co. v. N. O., J. & G. N. R. R. Co., 23 La. Ann. 353; Knoop, Hanneman & Co. v. Blaffer, 39 La. Ann. 23, 6 So. 9; John Chaffe & Sons v. Walker, 39 La. Ann. 39, 1 So. 290.

“The prescription pleaded must come clearly under one of the provisions of the law.”

The plea of prescription was therefore properly overruled.

On the merits, the record shows that the plaintiff and defendant entered into a verbal contract whereby plaintiff was to keep the defendant’s books in the regular course of its taxicab business for the remainder of the year 1924 and for January and February, 1925, and to render accounting services in connection therewith, at an agreed price of $200 per month.

The defendant paid plaintiff all of the installments due under the contract for the previous months, but refused to pay the installment due for the month of March, 1925, contending that plaintiff failed to comply with its contract in failing to balance the books and reconcile the bank statement therewith, and refusing to render services as a certified public accountant to audit the books of the defendant.

Plaintiff contended that all services contracted for were rendered in the same manner as they had been rendered during the previous months under the contract, and that it was impossible to balance the books with the bank statement, because the bank statement was not ready at the time plaintiff gave up its contract with defendant, and that the reconciliation of the bank statement with the books was only a matter of a half hour or an hour’s work, and that plaintiff was not obligated under its contract to render any services as a certified public accountant to audit the books of defendant.

It appears that the plaintiff kept a competent bookkeeper regularly at defendant’s place of business for general bookkeeping purposes, and that his work was regularly checked by members of the partnership or experienced accountants who were in the employ of plaintiff. The work was done during the month of March in the same manner as it had been previously done, and the defendant made no complaint. The federal income tax return was prepared by plaintiff, and it is admitted that this work was done correctly. Plaintiff voluntarily gave up its contract with defendant on April 1, 1925, without defendant having requested plaintiff to do so. Defendant then engaged the same bookkeeper, who .had been previously in the employ of plaintiff and who had kept the defendant’s books, to continue in the same capacity. This party subsequently became a certified public accountant, and at the time of the trial was still in the employ of defendant.

We are convinced that the plaintiff has proven by a preponderance of the evidence that the services contracted for were properly and competently rendered.

The judgment appealed from is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 12,005
    Orleans
    DOWLING v. PEYROUX
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      George Piazza, of New Orleans, • attor ney for plaintiff, appellee.
    J. C. McGee, of New Orleans, attorney for- defendants, appellants.
   WESTERFIELD, J.

This is a suit by a lawyer for a fee. He claimed $300 in his petition and was awarded $200 by a judgment of the lower court, from which judgment the defendants prosecute this appeal.

Mr. and Mrs. Peyroux, defendants herein, reside at No. 1728 Cadiz street in the city of New Orleans. Mrs. Peyroux, who before her marriage was a music teacher, with the assistance and co-operation of her husband, organized some school children in her neighborhood into two orchestras, which she called “The King’s Own’’ and “The Kiddies”; “The Kiddies” being composed of the younger children. Mrs. Peyroux was in the habit of instructing the children at her residence three times a week, when various musical instruments were played and practiced on by the different members of the band. A neighbor of Mrs. Peyroux by the name of Smith objected upon the ground that the musical efforts of the children amounted to a disturbance of the peace and caused Mrs. Peyroux to be charged with that offense before the recorder. Mr. Dowling, the plaintiff in this case, signed Mrs. Peyroux’s bond and represented her before the recorder, with the result that the charge was dismissed. Thereafter Mr. Smith, being still unreconciled to the situation, employed counsel and instituted injunction proceedings against Mr. and Mrs. Peyroux in the civil district court, based upon the allegation that the bands, particularly “The Kiddies,” were a nuisance. Mr. Dowling again appeared for defendants and, after a hearing in the district court, during which, we are informed, “The Kiddies” Band appeared in the courtroom and performed before the learned judge of division E of that court, the injunction applied for was denied. At this point in the litigation Mr. Dowling rendered a bill for $300. No attention was paid to his bill, and at intervals of 30 days several other bills were sent, all of which were ignored by defendants, whereupon Mr. Dowling withdrew from the case and filed this suit for his fee. In the meantime the case was appealed to the Supreme Court.

The claim of plaintiff is resisted upon the ground that he had agreed that his services would be gratuitous. Mrs. Peyroux explains that the two orchestras were organized by- her as a gratuitous contribution to the civic welfare of the community and that Mr. Dowling was impressed with the value of her undertaking, and, in the same spirit of civic pride, contributed his professional services. In addition it is contended that the opportunity which this employment presented for favorable publicity, and the extension of Mr. Dowling’s acquaintance to include tbe fathers and mothers of the children who played in the bands, was the moving cause of Mr. Dowling’s otherwise apparently generous conduct. The further defense is made that the abandonment of the case by Mr, Dowling during the pendency of the appeal in the Supreme Court barred his recovery, citing Brown vs. Green, 132 La. 1090, 62 So. 154, and several other authorities.

As to the alleged agreement of Mr. Dowling to act without compensation, we, like the judge of the trial court, are of opinion that it is not sustained by the evidence. One who employs an attorney at law is presumed to contemplate the payment of a fee. Whether Mr. Dowling was influenced by the considerations mentioned by Mrs. Peyroux in her testimony, and pressed upon us in argument, to the effect that he was aiding an enterprise of great civic interest and making valuable acquaintances, is immaterial. His undertaking to do the work without pay has not been established.

As to the second point raised by the defendant, the alleged abandonment of a case during the pendency of an appeal, it does not appear that his withdrawal from the litigation caused the defendants any embarrassment whatever. On the contrary, Mrs. Peyroux testified that a number of lawyers were anxious to represent her. We know of no reason, in the absence of a written agreement, which would prevent an attorney retiring from a case he had undertaken, or, for that matter, prevent his client from terminating his services; and, in the case of an attorney who retires without injury to his client’s cause, after making several unsuccessful efforts to collect a fee, there is no reason why he should not be compensated upon the basis of a quantum meruit for the services which he has rendered. The authorities cited are not in point.

The allowance of $200i by the trial'court has been acquiesced in by plaintiff, who has filed no answer to the appeal. We cannot see that it is excessive, in view of the services rendered by plaintiff.

For the reasons assigned the judgment appealed from is affirmed.

HIGGINS, J., took no part.


text:
    No. 13,283
    Orleans
    MAUBERET v. MAUBERET
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Harry McEnerny, of New Orleans, attorney for plaintiff, appellee.
    Cahn & Cahn and William F. Conker-ton, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a promissory note in the sum of $1,583.34, in which no answer or other pleading was filed below by the defendant. A preliminary judgment was entered by default, and on October 21, 1929, was confirmed, and the judgment signed in due course. Within ten days thereafter, defendant appealed suspensively to this court, and plaintiff in answer to the appeal asks that the judgment be affirmed with 10 per cent, additional as damages for frivolous appeal, as authorized hy article 907 of the Code of Practice.

When the case was called for argument in this court, counsel for defendant and appellant frankly admitted that, the appeal was frivolous and stated that it had been taken solely for the purpose of delay, but contended that no damages for frivolous appeal should be allowed because:

“The judgment herein awards 10% attorney fees, running interest, costs and is secured by a suspensive appeal bond. The Article of the Code of Practice 907, only permits the allowance of damages for a frivolous appeal, if there is loss sustained by the delay consequent to the appeal. Necessarily here, there is no loss evident, because the appbllee gets more interest and the counsel gets a larger attorney fee in consequence, by the alleged delay consequent to the appeal; so that the plaintiff and appellee is confronted with no loss whatsoever.”

In support of the contention of appellant, we are referred to Hackley State Bank vs. Magee et al., 128 La. 1008, 55 So. 656, where damages for frivolous appeal were not allowed under the following circumstances. The appellee after claiming the damages moved to dismiss the appeal, and the court said, speaking of the motion to dismiss:

“Had this motion to dismiss been granted, it would have disposed of the previously made demand for damages.

“To return to this demand after it had been virtually abandoned presents an unusual feature.

“This court will not be hasty in allowing damages on the ground urged unless it be evident that the right was resorted to only for mere delay.”

It is quite obvious that the cited case is not authority for the proposition that where a judgment allows attorney’s fees and interest and a good and solvent surety is furnished on an appeal bond no damages may be allowed for frivolous appeal, even when admittedly taken solely for delay.

In view of the sixth section of the Bill of Rights of the Constitution of the State of Louisiana, guaranteeing to all persons “adequate remedy by due process of law,” and providing that justice shall not be denied nor administered with “partiality or unreasonable delay,” the contention of counsel for appellant in this case is most remarkable. Counsel says that the right of appeal is favored in o.ur law. It is only favored, however, when there is some question presented by the appeal involving the rights of the appellant as decided by the court below which may be reviewed by the appellate courts, but an appeal for the purpose of delay only is not only not favored in law, but is essentially reprobated as an impediment to the orderly and prompt administration of justice. The damages . prayed for will be allowed.

Por the reasons assigned, the judgment appealed from is affirmed, with 10 per cent, additional as damages for frivolous appeal.

JANVIER, J., takes no. part.


author: JANVIER, J.

text:
    No. 11,521
    Orleans
    GRAND ORIENT LODGE OF LOUISIANA v. JACKSON ET AL.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    J. Kenton Bailey, of New Orleans, attorney for plaintiff, appellee.
    R. A. Tichenor, Sr., of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Plaintiff is incorporated

under the laws of Louisiana as “Le Grand Orient de la Louisiane.” It seeks to enjoin defendants from operating an incorporated body or lodge under the name “Grand Orient Lodge.” The petition alleges that confusion results from the similarity of names, and that the purpose of defendants in adopting the name “Grand Orient Lodge” was to obtain as members of their organization persons who really intended joining the other, but who, through confusion, were lead to associate themselves with defendants.

Defendants resist the granting of the injunction on several grounds. They contend that they are not incorporated and that there is nothing in the laws of this state or of the United States to prevent an unincorporated group of individuals from adopting any name which might to them seem fit. They further contend that the name adopted by them is not confusingly similar to that of plaintiffs for the reason that plaintiff’s name is French, whereas the name of defendants is merely the English translation thereof.

And, lastly, they contend that the word “Orient” is descriptive or geographical, and that plaintiffs are not entitled to the exclusive use of a word merely descriptive or geographical.

In the first contention we can see no merit. Innumerable injunctions have been granted against individuals, as well as against corporations, to prevent the use of confusingly similar names. In Round Table Club vs. Bond et al., 163 La. 175, 111 So. 667, the defendants were not incorporated. An injunction was sought to ■prevent the use by defendants of a name confusingly similar to that of plaintiffs. Had there been any soundness in the contention which is now made that there is no prohibition in our laws against the use by individuals of a name similar to that of a corporation, it would not have been necessary for the Supreme Court to go beyond that point. As a matter of fact, the Supreme Court paid no attention to that point and discussed at great length the other contentions which were involved.

As to the second contention that the plaintiffs use the French name, whereas the defendants use the English, we can see no force in this, as the names, whether in French or in English, are strikingly similar and one is the translation of the other.

As to the third contention that the name is merely descriptive or geographical, we think that this is also without merit. A

contention similar to this was made in Trappey vs. McIlhenny Co. (C. C. A.) 281 F. 23, 25 (writ of certiorari refused by United States Supreme Court, 260 U. S. 733, 43 S. Ct. 94, 67 L. Ed. 487), but the court held there that, although the word “Tabasco” was geographical, when used in connection with the words “pepper-sauce” it had a distinctive meaning, and no other person, firm, or corporation could adopt it for use in connection with a similar article. It seems to us that the same reasoning applies here. The word “Orient” may be said to be geographical, but the words “Grand Orient,” when used in connection with a Masonic Lodge, are not used in a geographical sense, and it is plainly an infringement of the rights of the prior users for any one else to adopt similar words in connection with a Masonic or other fraternal organization. It is not necessary for us to determine whether, in fact, the name as used by defendant is “Grand Orient” or “Orient Grand,” as we think the similarity would exist either way. The record leads us to the opinion that plaintiff organization was using the name “Le Grand Orient de la Louisiane” or “Grand Orient Lodge of Louisiana” long prior‘to the attempt by defendants to organize the other concern with a similar name. Whether the plaintiffs had complied with the rules of -the Masonic Order is of no importance in the present controversy. Whether their incorporation was in proper form is also immaterial. They were using the name before defendants attempted to do so, and since it is apparent that injury to them will result if defendants are permitted to use a similar name, they are entitled to the injunction which was granted by the trial court. Trappey vs. McIlhenny Co., supra.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed.


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    No. 592
    First Circuit
    LUSCO ET AL. v. CORKERN ET AL.
    (March 5, 1930. Opinion and Decree.)
    Brock & Carter, of Franklinton, attorneys for plaintiffs, appellees.
    Ott & Rich, of Bogalusa, attorneys for defendants, appellants.
   MOUTON, J.

Plaintiff brought this suit against S. E. Corkern and N. S. Crow for $50 balance of rent on a store building leased to defendants; also. for. .$170 for estimated cost for replacement of a partition, shelvings, transom, - etc., in the condition they were at the time the contract of lease was entered into.

The demand against Crow has been abandoned by plaintiff, leaving Corkern as the only defendant.

The lease was verbal, and had no fixed period of duration. The rent per month was $50, payable on the 18th of each month, and in advance for the ensuing month. It was further agreed that it was at the option of either party to terminate the lease, provided he gave to the other thirty days’ notice prior to its termination. It is not disputed that defendant made his last payment of rent on November 18th, which was to cover the month beginning on the 19th of November, and ending December 18, 1928, when on that date, defendant removed from the premises. Plaintiff is claiming $50 for the rent from December 18, 1928, to January 18, 1929, contending that this rental is due her because of defendant’s failure to give her «thirty days’ notice prior to his removal on the 18th of December, 1928.

The property was leased to defendant by Prank Lusco, plaintiff’s husband, who had full authority to enter into the contract. Lusco testifies that, about fifteen days before defendant moved- from the store, he was told by some one that he intended to move, but he is positive that defendant never gave him such notice at any time. Mrs. Lusco testifies that defendant came to her at her home, where he gave his last check for the rent on November 18th or 19 th, and that he did not make any mention whatsoever of his intention to vacate. In the course of her testimony, she said defendant told her he was going to a larger place which he needed in his business, but said he would pay her for another month. This occurred, she testifies, before the 18th of December, about the 10th of that month. As he moved on the 18th of December, it is - evident, even if such could be construed as a. notice, that it was not communicated to plaintiff thirty days prior to defendant’s removal from the premises. Besides, Mrs. Lusco says that, when he spoke of getting a larger place, defendant said he would pay rent for another month, which would have been in keeping with his obligations under the lease.

Wallace Smith testifies that, after defendant had moved, he called on Prank Lusco to rent the store; that Lusco told him defendant had paid his rent to the 18th, and was to give him thirty days’ notice. He says he then saw defendant, who told him he might promise to let him have the place if he promised not to run a cash and carry store, as he intended to keep it locked up for another month because he did not want such a store there in the next month, and, that he said he was to give Lusco thirty days’ notice.

This statement from both Lusco and de: fendant to Smith confirms the evidence of plaintiff and her husband that they had not received the notice as had been stipulated in the agreement. It is also in keeping with Mrs. Lusco’s evidence, wherein she says that defendant said he intended moving to larger quarters, but would pay her for another month.

The version given by defendant of the transaction on the issue of notification is directly in conflict with that of plaintiff. His statement is that, when he paid Lusco his rent on November 19th, in advance for the ensuing month ending December 18th, at the same time he told Lusco • he would not want the building any more after the expiration of that month. He says Lusco replied he did not care a particle, as there were many others who wanted the store.

Creton Corkern, brother of defendant, says he was present when defendant paid the rent, and, as he gave plaintiff the cheek, said he did not want the building any longer. Defendant’s wife testifies to the same effect.

Two or three other witnesses say that Lusco had told them he had been notified by defendant of his intention to move on the 18th.

It is shown by the evidence that there were several applicants for that store. The fact is that defendant says in his testimony that, when he made the last payment for the rent, and told Lusco he was moving, the latter replied he did not care, as many others wanted to rent the store. It is therefore evident that Lusco could have immediately rented the building, but the proof is that, after defendant had removed, a new tenant took possession of the store on the 20th of January.

This fact indicates very strongly that plaintiff had not been notified as agreed, and that she expected her rental from defendant up to January 18, 1929.

Be that as it may, there is certainly a sharp conflict in the testimony of the witnesses for plaintiff and defendant in reference as to whether or not plaintiff was notified of the termination of the lease. It is true that, in point of number of witnesses, defendant has the advantage, but this does not constitute a criterion for the determination of the weight and probative value of evidence. The controlling factor in such cases depends frequently on the character of the witnesses, and in the manner in which they testify. The credence to be given their testimony rightfully falls within the province of the trial judge. His findings in such instances will not be disturbed by the appellate court, unless for manifest error apparent from the facts or circumstances of the case.

There are none of that character herein to warrant an interference on Our part.

The next contention is as to whether defendant was to replace the partition, shelving, etc., at his expense when his lease expired.

Plaintiff claims that defendant was to make a complete restoration. The claim of defendant, on the other hand, is that he was to use the materials in the partition to build a shed room back of the store, and, in case additional lumber was needed, he was to furnish that at his expense, but that, at the termination of the lease, the shed room or little warehouse was to remain the property of the plaintiff.

The testimony on this point is equally conflicting. It is shown ¿hat the lumber taken out of the partition had to be cut or sawed up for the construction of the warehouse, in which lumber No. 3 and of a very inferior quality was added at the expense of defendant in erecting it. There is nothing to indicate that the partition was not in good condition when defendant took possession, and that it was not a valuable, necessary, and permanent attachment to the store. It is not reasonable to believe that plaintiff would have permitted the demolition of this partition without requiring its restoration at the expiration of the contract, and to accept the shed room in lieu of it, of which defendant would have the use during the time he might keep the premises.

An estimate of $170 was made by a carpenter as being the amount required for the replacement of the partition, and to restore the building in the condition in which it was at the time of the lease.

The court allowed $100 for this item, which we find to be a fair allowance under the evidence.

The judgment is therefore affirmed.

LECHE, J., not participating.


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    No. 11,834
    Orleans
    HORTMAN-SALMEN CO., INC., v. HIGH-GRADE REALTY CO.
    (March 10, 1930. Opinion and Decree.)

      Edrington & Carmouche and D. Thomas Salsiccia, of New Orleans, attorneys for plaintiff, appellant.
    John E. Jackson and Baldwin J. Allen, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff sues defendant for the sum of $521.26 alleged to be the balance due on an open account for building material and supplies furnished. Defendant answered denying liability and averring that on October 26, 1926, defendant and plaintiff entered into an agreement whereby plaintiff agreed to sell and respondent agreed to buy certain building material to be used in the erection of a building; that the estimated cost of the material for the construction of the building was $2,469; that it was also agreed that any material ordered and not used would be credited in respondent’s favor; that the building was constructed, and, when it was completed, respondent sold the building and lots upon which it was situated to one J. Robin; that the plaintiff - was notified to present all of its bills covering material used in the construction of the building, in order that they might be paid at the passing of the act of sale; that on February 9, 1927, the act of sale was passed before a notary in authentic form; that the duly authorized representative of the plaintiff was present at the passing of the act of sale and presented claims against the building for material furnished, amounting to the aggregate sum of $2,125.61, which was then and there paid; that the said representative issued a receipt in full for the material furnished and granted a full acquittance and discharge from all responsibility whatsoever, releasing plaintiff’s materialmen’s lien against the property recorded in the mortgage office in the sum of $2,469.10.

On the day of the trial, respondent presented a supplemental and amended -answer setting up a plea of estoppel on the ground that, the representative of the plaintiff having presented a bill for $2,125.61 covering all material which went into the building, and having, accepted payment of that amount in full settlement of its claim, and having canceled the materialmen’s lien the plaintiff is estopped from claiming from the defendant the additional sum of $521.26, as respondent’s position has been changed to its prejudice through the negligence and carelessness of the plaintiff in permitting respondent to transfer the property to Robin free of all incumbrances, and that any loss sustained as a result of the negligence of the plaintiff should be borne by it.

On the merits, there was judgment in favor of the defendant dismissing the suit on the plea of estoppel, and plaintiff has appealed.

Plaintiff contends that the judge of the lower court erred in permitting the supplemental answer to be filed after issue was joined and thereby change the issue presented by the original answer, i. e., payment. It is argued that the original answer sets up a plea of paynjent, and 'the plea of estoppel is inconsistent and contrary to the plea of payment and therefore changes the issue.

The allegations contained in the original answer cannot be construed solely and only as a plea of payment. The allegations merely set up certain facts from which any legal conclusion can be drawn which they would justify, i. e., plea of payment or estoppel. While the allegations of the original answer were general and should have been more specific, nevertheless' we are of the opinion that they were sufficient to allow the introduction of evidence to show an estoppel. There is nothing inconsistent between the allegations of the supplemental answer and the original answer except that the words “specially pleas estoppel” are used. The supplemental answer simply clarifies the more general allegations which were contained in the original answer with reference to this defense. We do not find that the trial court abused its discretion in permitting the amendment. C. P. arts. 419, 420; Terrell vs. Boarman, 34 La. Ann. 303; Smith v. Harrell, 16 La. Ann. 190; Mader v. Fox, 15 La. 132.

On the merits, the record shows that the respondent was engaged in the development of a subdivision in Fairmount Drive. In order to gell two lots to Mr. Robin, it was agreed that respondent would erect a residence on the property suitable to the wishes of Mr. Robin. A bond for deed was drawn up and signed by the parties. An agreement was then entered into between the plaintiff and the defendant in which the plaintiff undertook to furnish the necessary building material and defendant obligated itself to purchase the material to be used in the erection of the building; the estimated cost of the material being $2,469.10. The plaintiff opened an account in the name of the High Grade Realty Company, Inc., defendant herein, and debited defendant's account in the sum of $521.26, the amount sued for. Plaintiff’s bookkeeper also opened a.n account in the name of the contractor, J. W. Fatzer, which was debited in the sum of $2,125.61. At intervals of sixty and thirty days before the passing of the act of sale, defendant notified plaintiff to get all of its bills for material ready in order that they might be presented before the notary so that all bills for material used in the construction of the building would be paid.

On February 9, 1927, Robin as purchaser, defendant as seller, and plaintiff’s representative as materialman, together with other parties who had claims, appeared before the notary in order that the bills would be paid and title passed. The plaintiff’s representative, believing that the bill of $2,125.61 represented the full amount of its claim, presented the bill and accepted payment and gave a receipt in full and granted a release of the materialman’s lien recorded in the mortgage office. The title was passed, giving Rohin title free of all incumbrances.

About four weeks later, the plaintiff discovered the error, and sent a bill for the sum of $521.26 to the defendant, which refused to pay it. This suit resulted. The record convinces us that the defendant made no profit out of the erection of the building, but simply handled the construction of the building in order to sell the lots to Robin. The evidence further convinces us that, at the time of the passing of the act of sale, the defendant did not notice that the representative of plaintiff had made an error, and that all parties were in good faith.

Under these circumstances, the result of plaintiff’^ error or careless and negligent act has placed the defendant in the position where it has lost the security which it had for its claim for the total cost of the construction of the building against Robin. Up to the time of the passing of the act of sale, defendant was the owner of the property, but, when the act of sale was passed giving Robin a free and unincumbered title, automatically defendant was divested of this security. Defendant has certainly, therefore, been prejudiced by the mistake of the plaintiff, and to permit the plaintiff at this time to recover against the defendant would be placing the loss upon the defendant ás a result of plaintiff’s negligent act.

The trial court, in the reason for judgment, said:

“The plea of estoppel, in my opinion, is good, because it was the laches, the carelessness or the negligence of the plaintiff, which caused the failure to have this $521.00 included in the purchase price, and therefore, I think they are estopped to claim it. But there is another maxim of law, which in my opinion, carries the case with the defendant and that is the maxim that where of two innocent parties, one must suffer a loss, he through whose fault the loss occurred must bear it. For these reasons let the plaintiff’s suit be dis: missed at its cost.”

We believe this is a correct statement of the law, and therefore the judgment is affirmed.


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    No. 11,785
    Orleans
    HANLEY ET AL. v. CHECKER CAB CO., INC., ET AL.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Hugh Wilkinson, Fred A. Oser and A. Miles Coe, of New Orleans, attorneys for plaintiffs, appellees.
    Paul L. Fourchy, of New Orleans, attorney for Checker Cab Co., defendant, appellant.
    A. R. Christovich, of New Orleans, attorney for Yellow Cab Co., defendant, appellant.
   HIGGINS, J.

Plaintiffs, as husband and wife, bring this suit against defendants in solido for damages for personal injuries sustained by the wife and for medical and hospital expenses, etc., claimed by the husband as head and master of the community of acquets and gains.

Defendants denied liability. There was judgment in favor of the wife for the sum of $2,500 and in favor of the husband for $537, with legal interest from judicial demand, against the defendants in solido, from which they have appealed.

The record shows that on February 23, 1925, at about 1:45 p. m. Mrs. Hanley, one of the plaintiffs, and Mrs. Lucille Reilly, were passengers in a Checker taxicab, owned and operated by the defendant Checker Cab Company, Inc. The taxicab was proceeding down Bourbon street in the direction of Esplanade avenue. A Yellow taxicab, owned and operated by Toye Brothers, the other defendant, was being driven on Esplanade avenue in the direction of the river. Bourbon street is a paved, narrow, one-way street in the direction of Esplanade avenue with single street car tracks in its center. Esplanade avenue has a neutral ground in the middle upon which there are double street car tracks, with paved streets on each side of the neutral ground. The paved side nearest Canal street is a one-way street in the direction of the river and the opposite side is a one-way street in the direction of the lake. There is a brick wall along Bourbon street about 6 feet in height, which comes up to the property line on the uptown lake corner of Bourbon street and Esplanade avenue. As both taxicabs approached this intersection, the front of the Yellow cab struck the left side of the Checker cab about where the door of the cab is located, turning the Checker cab over on its side on the river side of the neutral ground of Esplanade avenue against a telephone post. The Yellow cab proceeded on out Esplanade avenue in the direction of the river and was brought to a stop by the chauffeur some distance from the scene of the accident.

Mrs. Hanley was seated on the left side and Mrs. Reilly on the right side of the Checker cab, and they both testified that as the Checker cab went down Bourbon street, they admonished the driver not to drive so recklessly because they were alarmed for their safety; that he was operating the cab at an excessive rate of speed; and that he entered the avenue, at the^ point where the accident occurred, at an excessive rate of speed without stopping to ascertain if there was any traffic coming towards the river on Esplanade avenue.

The driver of the Checker cab was not produced as a witness, but the Checker Cab Company produced other witnesses who testified that the driver of the Checker cab stopped at the intersection of Bourbon street and Esplanade avenue and blew his horn before entering the intersection. Th'ey further testified that the Yellow cab was going at an excessive rate of speed and did not stop or blow its horn before coming to the intersection.

The chauffeur of the Yellow cab, as a witness for defendant Toye Brothers, testified that he was driving on Esplanade avenue in the direction of the river at about 15 miles per hour, and that as he approached the intersection of Bourbon street he slackened his speed to about 3 miles per hour and blew his horn; that he looked up Bourbon street for a distance of about 50 feet and did not see any traffic approaching, and then proceeded to cross, when suddenly the Checker cab at a great rate of speed dashed in front of his car and was struck on the left rear side about where the door is located, resulting in the Checker cab turning over as hereinabove described.

The plaintiffs' seek to hold the Checker Cab Company liable on the ground that Mrs. Hanley was a passenger in the Checker cab, which therefore bore the burden of proving that it was free from negligence or fault; and further contend that the defendant Toye Brothers is responsible because of the negligent, careless, and reckless manner in which its chauffeur operated the Yellow cab; and that the negligence of both chauffeurs was the proximate cause of the damage and injury for which plaintiffs seek to recover.

The Checker Cab Company contends that it discharged the burden of showing itself free from negligence as a carrier of passengers by the testimony of its witnesses to the effect that the Checker cab stopped at the intersection of the two streets and blew its horn before proceeding across, and further that its witnesses have established the fact that the Yellow cab was solely responsible for the accident because of the excessive speed at which it was being operated.

The defendant Toye Brothers contends that the Checker cab was solely responsible for the accident because it did not stop or blow its horn at the intersection but proceeded across the path of the Yellow cab at a reckless rate of speed; and that its evidence establishes the negligence of the driver of the Checker cab and shows that the driver of the Yellow cab was free from fault; that while the Checker cab had the right of way under the traffic ordinance of the city of New Orleans and the Yellow cab technically violated the provisions of the ordinance in failing to stop at the intersection before proceeding to cross, nevertheless the proximate cause of the accident was -the excessive rate of speed of the Checker cah which entered the intersection in a reckless and careless manner.

The plaintiff and Mrs. Reilly testified that the driver of the Checker cab entered the intersection at a rate of speed of approximately 30 miles per hour and that the driver did not stop or blow its horn before entering the intersection although his view of traffic coming from his left was obstructed by the brick wall along Bourbon street.

The witnesses for the Checker Cab Company and also Mrs. Reilly and Mrs. Hanley, as witnesses for plaintiffs, testified that the Yellow cab did not stop or blow its horn, but entered the intersection at a rate of speed of about 35 miles per hour, and that the driver of the taxicab was looking towards his left instead of towards his right just before the accident.

The driver of the Yellow cab testified that the Checker cab entered the intersection at an excessive rate of speed of about 30 or 35 miles per hour without stopping or blowing his horn before doing so. He is corroborated by Mrs. Reilly and Mrs. Hanley.

In short, the testimony of the Checker Cab Company’s witnesses corroborates the plaintiffs’ evidence that the driver of the Yellow cab was at’fault, and the witnesses for Toye Brothers corroborate the plaintiffs’ evidence that the driver of the Checker cab was at fault in causing the accident. The defendants blame each other with having caused the accident.

We have reached the conclusion. that the proximate cause of the accident was the negligence, carelessness, and recklessness of the drivers of both taxicabs in entering the intersection at an excessive rate of speed, without due precaution and care. This is especially true in view of the fact that the vision of both drivers, as to traffic coming into the intersection, was obstructed by the 6-foot brick wall situated on the uptown* lake corner of Bourbon street. Therefore plaintiffs are entitled to recover.

Both defendants contend the quantum of damages allowed is excessive. It appears that Mrs. Hanley was seated on the left-hand side of the Checker cab and Mrs. Reilly on the right-hand side. Both cabs were traveling at a rapid rate of speed when they collided. When the Yellow cab struck the Checker cab, it was turned over on its side, causing Mrs. Hanley to fall over on Mrs. Reilly and the rear seat of the taxicab to fall on Mrs. Hanley. The ladies were rescued through the window of the cab and were removed from the scene of the accident to a residence in the neighborhood and then in a Yellow cab to their hotel, where they were treated by two young doctors who were sent by Dr. Batchelor, who had been summoned -but was unable to come. The next morning Dr. Hoefeld, the physician for the Checker Cab Company, saw the ladies at the hotel and advised them to go to a hospital. The same day they went to the Hotel Dieu and engaged the services of Dr. Gelpi, who treated Mrs. Hanley for eight days. While in the hospital, due to severe nervous shock to Mrs. Hanley, Dr. Gelpi called in Dr. Otis, a specialist, in neuropsychiatry, who treated her for a period of three days. At the end of eight days plaintiff was discharged from the hospital but was compelled to remain in the city of New Orleans for several days before being able to take a train to go to her home in New York.

It appears that Mrs. Hanley suffered an injury to her nose which bled profusely; that she received a blow on the head and a bad cut on her right knee and an injury to the same leg. She testified that bruises developed almost over her entire body and that she was blue across her stomach and chest and suffered considerable 'pain. In this statement she is corroborated by-Mrs. Reilly.

Both Drs. Otis and Gelpi testified for the plaintiffs, but the plaintiffs complain that they were disappointed and surprised intheYTocfors’ testimony, because they described Mrs. Hanley’s injuries as minor injuries and not permanent injuries as plaintiffs claim. Dr. Otis, who saw Mrs. Hanley several days after the accident, testified as to her nervous condition and described “the psychic neurosis mild.” Dr. Gelpi, who treated Mrs. Hanley, corroborates her, except that the injuries were not permanent. He testified that the injuries were of a minor nature, but stated:

“Q. Just how badly hurt does a person have to be to call it a minor case in your estimation?

“A. Do I have to answer that?

“The Court: I think so, yes.

“A. (Continued) Well, it is hard to say exactly. The point I tried to carry in my answer was that the likelihood was that those injuries were not severe enough to produce permanent lasting injury.”

Mrs. Hanley further testified that she was permanently injured and as a result of the accident she was anemic and still nervous; that she had been treated in New York for a considerable period by Dr. Prank Adair, whose testimony was not taken.

However, taking the testimony of plaintiffs, Mrs. Reilly and the Drs. Gelpi and Otis, we are convinced that Mrs. Hanley suffered serious and painful injuries from which she suffered for a considerable period, but which were not permanent injuries.

The jury awarded her $2,500, but we feel that an award of $1,500 would be sufficient to compensate her for the injuries which she sustained.

Both counsel for defendants complain that the amount of' $537 awarded to Mr. Hanley, for the amount of clothing ruined, $150, remounting of ring $12, and expense in New Orleans for ten days at $20 per day, or $200, are excessive, and that the jury failed to take into consideration the fact that the doctors’ bills of $135 had been paid by the Checker Cab Company. We are of opinion that $135 should be deducted from the amount of $537 and that $10 per day is sufficient allowance for expenses, or $100.

'Since the preparation of this opinion, it is made to appear in this court by the joint motion of plaintiffs and the defendant Toye Bros. Auto & Taxicab Company that the case has been compromised and settled between these parties, and they ask that the suit be dismissed insofar as the defendant Toye Bros. Auto & Taxicab Company is concerned and with full reservation of plaintiffs’ rights against the defendant Checker Cab Company.

In view of the above-mentioned joint motion, it is ordered, adjudged, and decreed that the appeal be dismissed as to the defendant Toye Bros. Auto & Taxicab Company upon payment of costs of court in accordance with the said joint motion.

It is further ordered, adjudged, and decreed that the judgment of the district court be amended by reducing thie judgment in favor of Mrs. Scholl Hanley, plaintiff, to the sum of $1,500 with legal interest from judicial demand until paid, and the judgment in favor of plaintiff Arthur J. Hanley, to the sum of $302 with legal interest from judicial demand until paid; and as thus amended is affirmed, appellant to pay all costs.


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    No. 12,074
    Orleans
    CHOPIN v. LEVY ET AL.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor and Solomon S. Goldman, of New Orleans, attorneys for defendant Berna'rd C. Levy.
    Milner & Porteous, of New Orleans, attorneys for Hugh J. De La Vergne.
   JANVIER, J.

Plaintiff, Miss Chopin, was a guest in the automobile owned and operated by defendant De La Vergne, when at about 9:30 o’clock on the night of December 29, 1925, it was in collision at the corner of Carondelet and Bordeaux streets, with an automobile owned and operated by the other defendant, Levy.

The De La Vergne car was proceeding down Carondelet street in the direction of Canal street, and the Levy car was being driven out Bordeaux street towards the lake. The night was dark and misty, and there had been a light rain falling during the late afternoon and early evening, with the result that both streets, which were paved, were wet and slippery.

On the upper riverside corner, which was the corner across which each driver, but for the obstruction,. might by looking have seen the other, there was a board fence some 5 or 6 feet high, which obstructed the view.

Plaintiff charges that both drivers were negligent; Ue La Vergne in that he failed to reduce his speed as he approached the corner, and Levy in that he failed to stop his car and failed to blow his horn, and in that he attempted to cross Carondelet street at an unreasonable speed.

Since Miss Chopin was a guest in the De La Vergne car, and had nothing to do with its operation, and had no authority over its driver, she cannot as a matter of law, by the negligence of De La Vergne, be deprived of her right to recover from Levy, unless the circumstances were such that she could be charged with independent negligence on her own part. Churchill vs. Texas & Pacific Railroad Company, 151 La. 726, 92 So. 314; Daull vs. New Orleans Railway & Light Company, 147 La. 1012, 86 So. 477.

Of course, had the automobile been proceeding at' a grossly excessive rate of speed, or had the driver been manifestly negligent, and had she as á guest on the front seat not (protested under those circumstances, it is possible that her own negligence could be said to have contributed to the accident. Leopold vs. Texas & Pacific Ry. Co., 144 La. 1000, 81 So. 602. But such was not the case, as we can find in the record no evidence which would indicate that there was anything she could have done which would have avoided the accident.

So far as Levy is concerned, his counsel, in oral argument, admits that he is liable, contenting himself with the attempt to persuade us that his liability was not the sole cause of the accident, but that De La Vergne, the driver of the other car, was jointly negligent with him, and therefore should be held solidarily liable. As a matter of fact, the physical facts show that Levy’s car, after the accident, was found so great a distance from the point where the two cars collided that there results the inevitable conclusion that his car, up to the moment of the collision, was being driven at an excessive rate of speed.

Since the negligence of De La Vergne, j! in fact he was negligent, cannot be imputed to Miss Chopin, and since she was not guilty of independent negligence of her own, and since Levy’s counsel admits that he was to some extent at fault, the sole remaining question for determination is the negligence vel non of De La Vergne.

As a result of this same accident, De La Vergne sued Levy for damages to his car, and, when that case came before us, we held that De La Vergne could not recover, because he himself was not free from negligence, in that he failed to accord to Levy the right of way to which Levy was entitled under article 1, section 7, paragraph (c) of Ordinance 7490 C. C. Series. De La Vergne vs. Levy, 10 La. App. 768, 123 So. 182.

Counsel for De La Vergne argues that the ordinance was not introduced in evidence in this case so far as his client is concerned, nor was the violation of it pleaded as one of the acts of negligence of his client. In this he is correct. We find, in the petition, no charge that De La Vergne violated the right of way feature of the ordinance, nor do we find the ordinance in evidence so far as the controversy between plaintiff, Miss Chopin, and defendant De La Vergne is concerned.

Counsel for De La Vergne also objects to the attempt to introduce in evidence the. record in the other case to which we have referred. We think that counsel was correct in this objection, as other issues were plainly involved in tlie other case. For instance, the question of the violation of the ordinance was pleaded in the other case, whereas it was not pleaded here. This in itself would be sufficient to prevent the introduction of that other record in evidence, so far as Be La Vergne is concerned.

But we find in this record made up on the trial of this case evidence of physical facts which lead us to the conclusion that Be La Vergne was to some extent at fault, and that this fault had causal connection with the resulting accident.

That Be La Vergne had not pre-empted the crossing appears probable as a result of the fact that after the impact his car came to rest on the uptown curb of Bordeaux street. If his car had pre-empted the crossing, it must have been at least near the center thereof at the time of the impact, and, if so, in all probability, it would not have completely reversed itself, so as to come to rest on the uptown curb, since, prior to the accident, it had been proceeding in a downtown direction.

Then, again, the attention of Be La Vergne does not appear to have been devoted entirely to the operation of his car, as the evidence shows that his wife, who was in the rear of the car, saw the Levy car before he did and called his attention to it.

As to his speed, it is true that the various statements of his passengers fix it at about 20 miles per hour before he slowed up, and at about 12 or 15 miles per hour after he slowed up. This would place it within the statutory limitations, but we doubt if it would bring it within the limits required by safety, considering the unusual weather and atmospheric conditions.

Viewing as a whole that part of the record which is properly before us, we cannot escape the conviction that the negligence of both drivers contributed to the result, and therefore the legal result follows that the liability is solidary, and that the judgment of the trial court was correct.

Nor do we think that the trial court erred in fixing the amount of the damages at $2,000. The young lady’s medical bills' in themselves amounted to $380, which fact is indicative of rather serious injuries and protracted suffering. She sustained a fracture just above the right elbow, and 'the injuries to her sacroiliac region made it necessary for her to receive constant medical attention for about four months. Her physician testified that such an injury sometimes does not mend for years. She was unable to work, and sometimes, even up to the time of the trial, several years after the accident, still suffered pain.

The suggestion is made that, but for the fact that defendant Be La Vergne is protected by insurance, he, in all probability, would not have been sued by his guest. No doubt this is true, but we are powerless to remedy such a situation. A similar case was brought to our attention in Hamburger vs. Katz, 10 La. App. 215, 120 So. 391, in which case counsel for plaintiff frankly admitted that the suit was filed only because the host, who was the son-in-law of the deceased mother-in-law, was protected by insurance. We see only two remedies. Either the insurance companies must so write their policies as to exempt themselves from obligation to indemnify the car owner in cases of suits by gratuitous passengers, or, if this course would make their policies unattractive, they must prevail upon the lawmakers, as they have done in at least one of the states (Connecticut), to enact legislation relieving from liability, except for intentional injury, or for injury resulting from extreme recklessness, those who are kind enough to gratuitously transport others. Silver vs. Silver (No. 24, October Term, 1929) 50 S. Ct. 57, 74 L. Ed..........

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed.'


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    No. 11,863
    Orleans
    DOLL v. THOELE
    (February 17, 1930. Opinion and Decree.)
    Fred Zengel, Jr., of New Orleans, attorney for plaintiff, appellee.
    Marion G. Seeber, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $324 commission alleged to have been earned as a real estate broker under a written contract entered into with the defendant on August 8, 1927. In the contract the defendant appointed plaintiff as the exclusive agent to sell his property within a period of six months and agreed to pay commission upon any sale made to any one to whom the property had been quoted during the term of the contract or within forty-five days after the expiration or termination of the contract. The defendant also agreed to refer all applicants to the plaintiff and not to interfere with the sale of the property during the term of the contract.

The petition alleged that the plaintiff carried out his portion of the agreement, but that the defendant on November 14, 1927, during the life of the contract and without the knowledge and consent of the plaintiff, sold the property to one Oliver J. Buckingham, for the sum of $8,100; and that this sale divested the plaintiff of his authority to sell the property during the remaining term of the contract; and that therefore plaintiff’s commission of 4 per cent, of the purchase price of the property under the terms and provisions of the contract was earned.

Defendant filed an exception of no cause of action which was overruled. He then answered plaintiff’s petition denying liability. Allegations 3 and 5 of defendant’s answer reads as follows:

“No. 3. Defendant denies the allegations of Paragraph No. 3 of plaintiff’s petition, except to say that it was understood and agreed that the period of the contract which respondent signed was to be for three months and not six months. But if the contract states six months it was obtained by plaintiff’s agent (a Mr. Ryan), through fraud and misrepresentation.”

“No. 5. Defendant denies the allegations of Paragraph No. 5 of plaintiff’s ¡petition, except that he made a transfer of said property to Oliver J. Buckingham, for the purpose of obtaining a loan on same and merely placed the said property in the name of Oliver J. Buckingham, who is a brother-in-law of respondent for convenience only as will appear from the counter letter by Oliver J. Buckingham acknowledging Joseph G. Thoele as the owner of said property and said property being placed in his name for convenience only, dated November 14th, 1927. Said counter letter is annexed hereto, and made part hereof, which counter letter is marked Exhibit 'B’ for identification, the said plaintiff was informed of this.”

On the trial on the merits plaintiff as a witness testified that he had carried out his portion of the agreement and that the defendant had violated the terms and provisions of the contract by selling the property without his consent or knowledge for the sum of $8,100 on November 14, 1927. He further testified that the real estate salesman who handled the transaction with defendant died before the case was tried; that the defendant had previously purchased the property in question through the plaintiff for the sum of $14,700; and that Mr. Ryan, the real estate salesman, had been informed through a friend that the property had been sold, and when Ryan rang up defendant about the sale he denied that the property had been sold. The plaintiff offered the contract in evidence and rested his case.

The defendant then took the stand as a witness in his own behalf and attempted to show by parol evidence that it was agreed between Ryan, the salesman, and himself, that the contract was to be for three months and not six months. The witness then started to testify that he signed the regular printed card which was to contain the agreement, in blank, and agreed that Ryan was to fill it out so as to provide for the listing of the property for three months, and that Ryan filled it out for six months.

Counsel for the plaintiff then objected to the evidence on’the ground that a written contract merges all previous negotiations before the signing and that the contract itself is the best evidence. The court sustained the objection for the reason that the sanctity of a written contract would vanish if a party to it were permitted to say that he signed the contract in blank and the other party filled it out different from the actual agreement.

Counsel for the defendant then attempted to prove that the sale of November 14, 1927, while in the form of a notarial act of sale, whs as matter of fact not a sale, but that the title of the property had been transferred simply as a matter of convenience to the defendant for the purpose of obtaining a loan of $8,000, as evidenced by a counter letter dated the same day as the sale, which counsel for the defendant offered in evidence.

Counsel for plaintiff objected to this testimony and to the offer of the counter letter in evidence on the ground that the counter letter was only binding on the parties to it; that it had never been recorded; that defendant never notified plaintiff of the counter letter; and that the document was not offered to be filed until the trial of the case. The objections were sustained by the trial court.

Counsel for defendant then placed Oliver J. Buckingham on the stand and sought to elicit from him whether the sale of November 14, 1927, was a bona fide sale or a transfer of the title of the property for the convenience of the defendant as shown by the counter letter. The court again sustained counsel for plaintiff’s objection, ruling that this testimony was inadmissible.

There was judgment in favor of plaintiff for the amount (prayed for, plus 25 per cent, additional as attorney’s fees, and defendant has appealed.

We shall discuss the rulings of the court in the order above stated.

It is to be noted that paragraph 3 of the defendant’s answer admits signing a contract for a period of three months with the plaintiff, but alleges that, if the contract contained a provision that it wap to be effective for six months, such contract was obtained through fraud and misrepresentation. The district judge’s ruling prevented defendant from offering evidence in support of this allegation of his answer.

In the case of Davis Bros. Lumber Co., Ltd., vs. Franks, 146 La. 803, 84 So. 101, 103, Pranks executed a written timber deed in favor of the Davis Brothers Lumber Company which provided that the plaintiff would have a time limit of ten years within which to remove the timber. It appears that the deed was executed upon one of the lumber company’s regular forms and the evidence was conflicting as to whether Pranks read it before signing it. The defendant attacked the agreement upon the grounds of fraud and misrepresentation, alleging that he was induced-to sign the deed with a time limit of ten years, whereas it was agreed and understood that the time limit would be only two years. Parol evidence was offered in support of the defense of fraud and misrepresentation, and objection was made on the ground that-the deed was the best evidence of the agreement. The court admitted the evidence, and the Supreme Court held that, in its opinion, such objection was not sufficient to exclude the parol evidence under the circumstances, and, on the merits of the case, the court found:

“In the absence of a reasonably strong showing of fraud or error, the document which the parties signed will be presumed to constitute the agreement between them. Watson v. Planters’ Bank, 22 La. Ann. 14; Allen, West & Bush v. Whetstone, 35 La. Ann. 846.’’

In short, the court held, where a written instrument is alleged to be invalid for fraud or misrepresentation in its (procurement, oral testimony is admissible to show the circumstances of its execution, but the parol evidence to establish fraud or misrepresentation must be reasonably strong.

In the case of the Great Eastern Oil & Refining Co. vs. Bullock, 151 La. 210, 91 So. 680, 681, the court said:

“Of course parol evidence is'not admissible to vary the contents of the written deed so as to introduce therein any guaranty that the lease would continue to produce any particular quantity of oil; for the written instrument contains no such guaranty.

“On the other hand, parol evidence would be admissible to show any misrepresentation of conditions actually ' existing or which had existed before; for the vendor who misrepresents the thing sold is guilty of fraud. C. C. 2547.”

In the case of Greco vs. Catalano, No. 7281 of the docket of this court, unreported (see Louisiana and Southern Digest), La. Digest Supp. vol. 8, verbo “Evidence,” par. 252, this court held:

“Where a written instrument is alleged to be invalid for fraud in its procurement, or for any other reason, oral testimony is admissible to show the circumstances of its execution.”

We are therefore of the opinion that the evidence offered by the defendant, tending to prove fraud or misrepresentation in the procurement of the contract, was admissible.

We next pass to a consideration of the court’s ruling with reference to rejection of the evidence offered by the defendant with reference to the sale and counter letter of November ,14, 1927. The contract between plaintiff and defendant is a standard exclusive agency contract of the multiple listing system of the New Orleans Real Estate Association. Defendant employed the plaintiff for the purpose of selling the property for $14,750 “all cash.” The primary purpose of the contract, as far as defendant is concerned, was to sell the property and, as far as plaintiff is concerned, was to earn a commission of 4 per cent, on the purchase price. Plaintiff predicates his right of recovery against defendant on the ground that during the life of the contract defendant sold the property, and therefore violated a provision of the contract as follows:

“I agree to refer all applicants to you and not to interfere in the sale of said property, during the term of this contract.”

Plaintiff contends that defendant, by virtue of the sale of November 14, 1927, placed himself in a position where he was unable to comply with his agreement, and that plaintiff was under no further obligation to make any further effort to secure a purchaser for the property and was entitled to recover a commission of 4 per cent, on the selling price of $8,100.

Defendant contends that, while the transaction of November 14, 1927, whereby he transferred the title to the property to Oliver J. Buckingham, his brother-in-law, for the sum of $8,100 — $100 ■ cash and a note for $8,000 — was not a side, but in fact and truth simply a transfer of the property for the convenience of the defendant for the purpose ot obtaining a loan of $8,000 which his brother-in-law, Buckingham, was in a better position to obtain than himself, he had not breached his contract because Buckingham was not a purchaser of the property or the owner of it, and that he had not interfered with the sale of the property by the plaintiff during the term of the contract because he was, at all times, ready, willing, and able to carry out the contract if plaintiff obtained a purchaser for the property.

It is to be noted that in paragraph 5 of the answer, it is alleged that plaintiff was informed of the transaction of November 14, 1927, and of the counter letter in connection therewith. While the plaintiff was on the stand he denied that he had received any written notice of the transaction.

The ruling of the district court prevented defendant from making his defense alleged in article 5 of the answer, and from rebutting plaintiff’s evidence that he did not receive notice of the transaction from defendant. We are unable to agree with our learned brother, a quo, that the evidence tendered on this issue was inadmissible.

Defendant was entitled to prove, if he were able, that the transaction involving the sale and counter letter of November 14, 1927, was bona fide and simply done for the purpose of accommodating himself in securing a loan on the property, and was in fact and truth not a sale of the property. We are of the opinion that such a defense would be a bar to the right of plaintiff to recover under the terms and provisions of the contract sued upon. If Buckingham were not a bona fide purchaser of the pronerty, defendant did not owe plaintiff any obligation of referring Buckingham as an applicant to him ■ for the purchase of the property. If the transfer of the property of November 14, 1927, was not a sale, then defendant has neither interfered with plaintiff nor prevented him from carrying out the contract, and has not placed himself in a position, where he cannot comply with his contract, as he still had “jus disponendi” of the property and would be in a position to transfer the title to any purchaser that the plaintiff might produce.

In the case of Clesi vs. Cooney, 164 La. 658, 114 So. 584, the Supreme Court said:

“Whether making of contract for sale of property by owner, during term of broker’s authorization to sell, made owner liable for commission under contract providing for payment thereof, if property were sold by him during such term, held to depend on whether it took away from broker his authority to sell during term of his contract.”

See also O’Neal vs. Southland Lumber Co., 168 La. 235, 121 So. 755; Mathews Bros. vs. Bernius (No. 30341 of the docket of the Supreme Court) 126 So _, decided February 3, 1930.

Counsel for plaintiff has referred us to Freeman vs. Diboll, 11 Orl. App. 199, Kostmayer vs. Landry, 18 Orl. App. 385, holding that:

“Where the contract of a real estate broker confers upon him the exclusive agency to sell the property and negatives the right of the owner to sell or negotiate for its sale, the broker is entitled to his commission if, during the term of the contract, a sale is effected by the owner or by another broker on the latter’s behalf.”

We do not consider these cases controlling here unless the evidence would show that the transfer by defendant to Buckingham was a bona fide sale of the property.

The arguments advanced by counsel for the plaintiff may be cogent reasons for questioning the credibility and weight to be given defendant’s evidence on the issues raised by the answer, but do not affect the admissibility of the evidence tendered.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided, and reversed, and the case remanded to the lower court for further legal proceedings not inconsistent with the views herein expressed.


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    No. 13,117
    Orleans
    KINSELL & LOCKE, INC., v. KOHLMAN
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    Rosen, Kammer, Wolff & Farrar and Louis L. Rosen, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit for $284.93, damages for the alleged breach of a written contract entered into between plaintiff and defendant on October 16, 1926. Defendant denied liability, and, from a judgment in favor of defendant dismissing the suit, plaintiff has appealed.

Under the provisions of the contract plaintiff agreed to manufacture, and defendant agreed to buy, 1,000 dozen socks at the price of $1.75 per dozen, or a total of $1,750. The goods were sold f. o. b. Philadelphia, and on the face of the contract appears the following: “Shipping date February 15, 1927.” Shipment of the goods was made on March 2 and March 5, 1927. Defendant refused to accept delivery, on the ground that time was of the essence of the contract, and, as the goods did not arrive on or before February 15, 1927, as provided in the contract, plaintiff actively breached his contract, and defendant was not obligated to accept the goods. Plaintiff then sold the goods in Baltimore at $1.50 per dozen, and claims a loss of $250, the difference between the agreed price and the price for which the goods were sold, and also $34.93 freight charges.

Plaintiff contends that time was not of the essence of the contract as a matter of law, and that the evidence shows that such was not the intention of either party to it.

Defendant contends that this is a mercantile contract for seasonable merchandise, and that time was of the essence of the contract as a matter of law, and, in the alternative, that the evidence shows that time was of the essence of the agreement; that, as the ^merchandise was not delivered on or before February 15, 1927, plaintiff committed an active breach of the contract by tendering the merchandise on March 5, 1927, and therefore defendant'did not have to place plaintiff in default.

We do not deem it necessary to pass on the question of whether or not time was of the essence of the contract as a matter of law. Conceding plaintiff’s argument in this respect to be correct, we are convinced that the evidence shows that time was of the essence of the contract and such was the intention of the parties to it.

The record is conclusive that this is a mercantile contract covering a commodity where the market fluctuates. It appears that defendant is a jobber and had secured orders from various customers for the merchandise covered by the contract, and that, when defendant failed to get the merchandise within the period stipulated in the contract, i. e., February 15, 1927, that defendant’s customers revoked their orders. It further appears that this was seasonable merchandise that defendant intended to use for particular trade during the Mardi Gras season in New Orleans, when the price for such merchandise was better than at other times.

In the case of Shelby Mills, Inc., vs. Sheed Nami, 1 La. App. 116, which was a suit for damages by the seller against the purchaser for refusing to accept and pay for a shipment of merchandise, the defense was that the seller shipped the merchandise qn July 20, 1920, whereas the contract stipulated that it should be shipped on July 1 and July 15, 1920. The court held:

“When an obligation is to he performed within a specified time, and the -time expires without performance, default is not necessary.

“In a contract for the sale and delivery of goods on specified future dates, the rule is that time is of the essence of the contract, and that the purchas<& will not be ■bound to accept and pay for the goods if they are not delivered on the dates specified in the contract.”

A leading case on this subject is Norrington vs. Wright, 115 U. S. 188, 203, 6 S. Ct. 12, 14, 29 L. Ed. 366, in which Justice Gray held:

“In the contracts of merchants, time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty in the sense in which that term is used in insurance and maritime law, that is to say; a condition precedent upon the failure or non-performance of which the party aggrieved may repudiate the whole contract.”

Plaintiff contends that he was entitled to notice of default after expiration of the date specified in the contract, but this contention is fully answered by the court in the case of Shelby Mills, Inc., vs. Sheed Nami, supra, in which the court said:

“ ‘Our law enforces no such fanciful notion as that after a contractor has violated his contract by not performing it’ at the time stipulated, ‘the contractee who no longer desires to have the contract performed must call upon him to perform, and that if this is not done the time for the performance continues to run indefinitely.’ Jennings v. Houssiere, 119 La. 855, 44 So. 481; Murray v. Barnhart, 117 La. 1034, 42 So. 489.”

In this connection, see, also, articles 1931, 1932, and 1933 of the Revised Civil Code.

In the case of Lundy vs. S. Pfeifer & Co., 162 La. 355, 110 So. 556, 557, the court held:

“The learned trial judge held the contract to be the law between the parties and enforced it literally. His decision is correct. He found that plaintiff had sued upon a contract, the provisions of which he had not complied with, and he correctly held that plaintiff must first show a compliance with his obligation under the contract before he can appeal to the courts for the enforcement of the obligations assumed by the other party to it.”

Counsel for plaintiff contends that the letter of defendant to plaintiff on January 22, 1927, inquiring if plaintiff could arrange to have socks manufactured with “assorted stripe tops on colored grounds instead of only white stripes on peach ground,” delayed the shipment, and therefore defendant was obligated to accept the merchandise when it arrived. However, the letter specifically states: “Could you arrange with the mill to work this out for us without delaying delivery and advise us, so we can reassure our customers? Kindly advise us as soon as possible.”

In response to this letter, on February 1, 1927, plaintiff wrote defendant that the change could not be made, and in this letter there were suggestions as to the packing of the goods, with the request that the letter be answered. Defendant answered this letter on February 5, 1927, stating: “Inasmuch as we are needing our goods now, we would ask that you have the mill rush our order as originally entered, so that the stock will come out like the samples.”

Our interpretation of these letters is that the defendant intended at all times that the shipment be made in accordance with the contract, and in no way consented to a postponement of the date of delivery.

We are of the opinion that the evidence shows that time was of the essence of the contract, and that a breach by the seller in failing to ship the merchandise on or before the date provided by the .contract was an active breach, which renders a putting in default by the purchaser unnecessary.

The judgment appealed from is therefore affirmed.