author: WESTERFIELD, J. JANVIER, J.

text:
    No. 10,594
    Orleans
    SALMEN BRICK & LUMBER CO., LTD., v. OWEN ET AL.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)

      Eugene Thorpe, of New Orleans, attorney for plaintiff, appellee.
    Denegre, Leovy and Chaffe, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

Plaintiff brings this suit against Cleveland Owens, a building contractor and his surety, The American Surety Company, for $1079.77, the alleged balance due for materials furnished the contractor and used in a building, which was erected by the contractor for account ■ of Alex Schulman, the owner.

The defendant, Owens, failed to answer, judgment being had against him by default, from which no appeal has been taken. The defendant surety company denied liability on the ground that the plaintiff corporation failed to record its lien in the mortgage office of the Parish of Orleans, within thirty days of the acceptance of the work by the owner, a prerequisite, it is claimed, to recovery as against the surety, under the terms of the bond itself. The further defense was made by the surety to the effect that plaintiff unduly delayed the prosecution of its claim against' the contractor without notice to the surety company.

The provision of the bond relied upon as defeating plaintiff’s claim reads as follows :

“Provided however and upon the following express conditions. That the surety shall not be liable for the payment of any liens for labor performed or materials furnished, unless such liens are recorded within thirty days after the owner shall have filed in the Mortgage Office of the Parish of Orleans, La., his acceptance of the work.”

It is conceded that plaintiff’s claim was not recorded in the mortgage office within the time mentioned in the bond', and it has been proven that the material for the price of which this suit is brought was delivered to Owens, the contractor and principal in the surety bond, and that it was used in the building which Owens was erecting for account of the owner.

Act 139 of 1922 is the last of a series of building contract laws, the purpose of which as declared by the Supreme Court was and is to protect “workmen, laborers, engineers, and materialmen by liens, privileges and surety.” This purpose, says the court, “shines forth in the title and body of the statute.” Shreveport Mutual Building Association vs. Whittington, 141 La. 44, 74 So. 591.

One of the requirements of the Act of 1922, and of the other acts which precede it, is that the owner who contracts for the erection of a building “shall require of his undertaker, contractor, etc., * * * a bond with good and solvent surety * * * and the conditions of the bond shall be the true and faithful performance of the contract and the payment of all sub-contractors, journey-men, cartmen, truckmen, workmen, laborers, mechanics and furnishers of material jointly as their interest may arise.”

It is further provided that the surety on the bond, when sued by the beneficiaries referred to, “shall be entitled to make only the same defenses that the contractor, for whom he signs the bond is authorized to make.” The law further declares that an owner who violates this provision with respect to requiring contractors to give a bond shall be personally liable for the debts of the contractor, a penalty so severe, being nothing less than a legal imposition in derogation of common right, as to indicate the determined policy of the law, to require the exaction of a contractor’s bond. See Merriweather Supply Co. vs. Baugh, 6 La. App. 733, and authorities therein cited.

The building law further provides that in addition to the contractor and his surety, the materialmen may hold the owner by recording his claim in the Mortgage Office, which shall operate as a lien against the property.

The language of the law in this respect is mandatory and it was thought at one time that the recording of the lien was a necessary condition to the recovery of a claim by a materialman, or other beneficiary, as against the contractor, and/or his surety. However, in the case of Shreveport Mutual Building Association vs. Whittington, 141 La. 44, where a surety company most vigorously defended itself on the ground, it was held that the failure of a materialman to record a statement of his account in the Mortgage Office within thirty days after the acceptance of the work by the owner was no bar to his recovery, as against the surety, because the surety could make only such defenses as the contractor, its principal, could make and this defense was not open to the contractor. We quote the following from the opinion:

“The mistake which the learned counsel for the surety company make is in not distinguishing between the owner, between whom and the materialman there is no contractual relation, on whose part there is no liability except that created by law against, or without, his consent, and the surety company who has voluntarily entered into a contract to pay the material-men in case the contractor does not, and have received a consideration for thus engaging itself.
““In not one decision of this court has it ever been held that the surety was released by nonservice of an account upon the owner; and this court could not possibly so hold unless prepared to hold that the contractor also is released, for the statute in express terms provides that:
“ ‘The surety herein shall be limited to such defenses only as the principal on the bond can make.’
“This express provision cannot be ignored; and, surely, no one would say that the contractor was released from paying the materialmen by the failure of the latter to serve an account upon the owner.”

Counsel recognizes the law to be as we have stated with respect to sureties who have furnished bonds in compliance with the building iaw or who have intended to comply with its provisions as is evident by the following which appear in his brief:

“If there were anything about the bond, the contract or the specifications which in any way indicated that the bond was intended as a compliance with the building statute, we would be bound to concede the force of our1 opponent’s position.”

But it is insisted that in this case the defendant surety company did not intend to furnish a bond in compliance with the statute and no such bond was in fact given; that the bond as furnished was simply the result of an agreement between the contractor and the surety company, accepted by the owner. In other words, a conventional or contractual bond and not a statutory bond.

To begin with it is difficult to believe that an owner, who requires his contractor to furnish a bond would agree to a limitation of the obligation of the surety in such a way as to bring himself without the protection of the building law, and voluntarily subject himself to the severe penalty as provided in that law for failure to furnish a bond in compliance with the statute. This difficulty is greatly increased by the fact that there is in the record an admission that Alex Schulman, the owner, who was absent, would, if present, have testified “that he entered into the written contract involved in this case and caused same to be recorded in the mortgage office, required a contractor’s bond and recorded the bond in the mortgage office and recorded a written acceptance in the mortgage office because he was advised that the building law required such things to be done in building contracts.” It is true that this admission was made subject to the objection that it is an effort to vary, alter, or explain a written contract. In regard to this objection it may be observed that the owner is not a party to the contractor’s bond, any more than the plaintiff in this case, who was a furnisher of materials, is a party, both plaintiff, and the owner, being' beneficiaries of a stipulation pour aueri, the bond being a contract between Owens, the contractor, and the surety company, defendant.

Moreover we know of no authority for the proposition that parol evidence may not be administered to explain ambiguous provisions in a written instrument.

To return to the proviso relied upon to the effect that the defendant, surety company, will not be liable for the payment of any liens, ■ etc., it will be observed that the word “lien” is used and not the word “claim.”

Referring to the building law we find that the materialmen and others shall record a sworn statement in the office of the Recorder of Mortgages for the Parish in which the work has been done, within thirty days after the registry of notice of the acceptance of the building by the owner.

The language of the present building law is the same in this respect as that which appears in other statutes which have preceded it, and the same as that interpreted in the Whittington case, which gave rise to so much contention.

Considering this language, without the light thrown upon it by the jurisprudence, as established by the Whittington case, and other cases which have followed, it would appear that the building law itself, in view of its mandatory provision requires the recording the lien as a condition precedent to recovery under the terms of the act, consequently, it might well be that the officer of the surety company, defendant herein, assuming that he had the act before him, and granting for the moment, that he intended to comply with the building law, might well have written this proviso in the building contract, in the belief that the law itself made this condition.

This is the most probable explanation for the appearance of the proviso in the bond, and one most complimentary to the surety, which has offered no explanation and gives no reason for limiting its liability under the bond in a manner not authorized by the statute. No official of the surety company has testified nor is there any evidence that the premium exacted for the bond was less than is customarily charged for a bond, the obligation of which is co-extensive with the statutory requirements.

That this bond was intended to comply with the statute is made overwhelmingly evident upon further consideration. In the first place the language of the bond is almost verbatim the same as that used in the statute. The law requires that the contractor’s bond shall guarantee “the true and faithful performance of the contract and payment of all sub-contractors * * *, jointly as their interest may arise." The bond guarantees that contractor shall “faithfully perform said contract * * *, and shall pay all sub-contractors, etc., named as beneficiaries in the bond, jointly and as their interest may appear.’’ The law provides that the contract shall be reduced to writing, and signed by the parties, and that the owner shall require the contractor to furnish a bond; that the contractor’s bond shall be recorded in the mortgage office, and that the owner shall record his acceptance of the work in the mortgage office. All of these requirements were complied with in this case.

It is true that there is in the contract no reference to the building law by number or by the year of its enactment, that is to say, it is not expressly stipulated that the bond is given in compliance with Act 139 of 1922, but that it was given in an effort to comply with that law is so plain as to require no explanation. Besides, contracts are presumed to have been entered into with relation to the law that governs them, Hill vs. Martin, 12 Mart. O. S. 1291. Statutory bonds must conform to the requirements of the statute, the obligation of the surety may not be enlarged or restricted.

Conditions required by the statute omitted in the bond, must be read into it, and conditions not required must be read out of it. Boswell vs. Lainhart, 2 La. 397; Corpus Juris, vol. 9, verbo “Bonds,” Sec. 40; Panama Sash & Door Company vs. DeLisle et ad. (No. 8592 Orl. App) unreported (see So. Rep. Dig); Carre vs. Stewart et al., 166 La. 317, 117 So. 238; U. S. P. & G. Co. vs. D’Angelo, 150 La. 190; Jeanerette Lumber & Supply Co. vs. Weir, 8 Orl. App. 87; Monroe Hardware Co. vs. Delatte, 4 La. App. 67; Interstate Grocery vs. Prutsman, 1 La. App. 73; State vs. Reed, 164 La. 315, 113 So. 860, 50 A. L. R. 383.

The law is not intended to benefit and should not be construed in the interest of the surety companies.

“The learned counsel of the surety company seem to think that this statute was enacted in the interest of the surety on the contractor’s bond, whereas the statute expressly declares that the purpose has been simply to require that the bond be given.
“Why the law should be solicitous for the protection of surety companies, the learned counsel, would, we imagine, be embarrassed to suggest any reason.”

The secondary defense, to the effect that the plaintiff unduly delayed the collection of his claim against the contractor is sufficiently answered by saying that this defense is not) available to the contractor.

Act 225 of 1918 provides that sureties, who fail to make payment of their obligations within thirty days shall in the event that' judgment is granted against them for the full amount claimed, pay an additional sum of 10 percent. The application of this statute to this case is not disputed, and the judgment appealed from awarded plaintiff the additional ten per cent provided for therein.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J.

(dissenting). I find myself unable to agree that this court should rewrite the bond in question so as to make it include an obligation more onerous than the surety was willing to voluntarily undertake.

At the time the bond was written by the surety it had knowledge of the fact that under the decisions of our Supreme Court a surety on a statutory building bond given under the Act of 1922 could not set up as a defense the failure of the materialman to file his lien within the prescribed thirty days. Presumably, it had had experience with materialmen who had neglected to file their claims and who, months and sometimes years, after the completion and acceptance of a job had proceeded against the surety who, during all this time had been under the impression that the matter was closed. Having had such experience this surety was unwilling to sign a statutory bond and desired to stipulate that its liability must be established within a fixed time. To this end it inserted in the bond the provision that it would be liable to such material-men and laborers and only such as should file their liens within thirty days after the acceptance of the work.

If the act prohibited the execution of any building contract except such as were protected by a statutory bond then I can easily see how any bond given in connection with such a contract should be construed as a statutory bond regardless of its provisions. As I read the Act of 1922, however, it does not prohibit such a contract, nor does it require any bond at all. Reading it as a whole it seems to intend to give to the owner a method of limiting his liability by obtaining a statutory bond and by requiring that if he wishes to limit his liability he shall record the, contract and the bond in the mortgage office. That it did not intend to make it absolutely mandatory' that a bond be obtained is evidenced by the fact that the act provides that if the owner does not obtain such a bond or does not record it and the contract he shall be liable to the same extent as the surety would have been.

If then he is not forced to obtain a bond at all, who but himself can complain if the bond he does obtain, does not contain all the provisions the materialmen would like it to contain? If it is not a statutory bond the owner is liable and the property is liable to such claimants as do not sleep on their rights but file their liens seasonably.

There have been a great many cases in which bonds were shown to have differed from those required under the particular statutes under which they were thought to have been given and in all of these cases the courts have held that although they were not statutory bonds they were good as conventional obligations. If then there is such a thing as a conventional bond on a building contract, I fail to see why this is not one. To hold that this is a statutory bond is tantamount to holding that any bond given in connection with a building contract no matter what its terms is a statutory bond and that the surety thereon is liable not as he bound himself but as the statute would have bound him had he written a statutory bond.

Another thing that induces me to feel that we should not rewrite a bond of this kind is the fact that the very statute in question requires the bond to be recorded. Why, is this requirement contained in the act if all bonds given are to be construed as having been given in compliance with the act? The requirement that the bond be recorded is contained in the statute so that a person intending to sell material for a particular building may examine the records of the mortgage office and determine before he sells the goods whether ' the bond given is such a one as will protect him. If he is not satisfied with it he need not sell the goods.

The provision inserted in the bond in question, when recorded in the mortgage office, was notice to the world, including the claimant here that if recovery was to be had of the surety, the lien must be filed within thirty days of the acceptance of the work. Having furnished the material in the face of that stipulation in the bond, the claimant should be bound by it, and, having failed to bring himself within its terms should be held to have lost his rights against the surety.

For these reasons I respectfully dissent.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3326
    Second Circuit
    TUTTLE v. GILLESPIE
    (March 12, 1929. Opinion and Decree.)

      Goff and Barnette, of Arcadia, attorneys for plaintiff, appellant.
    R. L. Williams, J. Rush Wimberley, of Arcadia, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, M. H. Tuttle, brought this action against the defendant, Mrs. I. M. Gillespie, to enforce the payment of six promissory notes drawn on November 8, 1921, in favor of plaintiff, and to reform or correct the description of property mortgaged to secure the notes, praying for judgment for the amount of the notes with recognition of the mortgage on the property, and in answer to the action defendant, admitting that she had signed the note and mortgage, alleged that the notes were without consideration, and null and void, having been given in violation of law in payment of her husband’s debt or the debt of the community of acquets and gains, praying that plaintiff’s demands be rejected, and for general relief. ■

The cause having been tried and submitted, judgment was rendered rejecting plaintiff’s demands and ordering the cancellation of the mortgage, from which plaintiff appeals.

It is shown that plaintiff had acquired the right to purchase or a promise of sale of certain real estate from G. G. Nelson, on which there had been paid a part of' the price agreed upon, and that' in negotiations between plaintiff and defendant and, her husband some agreement was reached under which defendant, Mrs. Gillespie, gave the plaintiff the notes sued upon, secured by mortgage on her separate property, and following, G. G. Nelson, with the consent of plaintiff, transferred the property which he had agreed to sell to plaintiff, to V. E. Gillespie and I. M. Gillespie on terms of credit at a price equal to the balance remaining unpaid by plaintiff, Tuttle, under the promise of sale, and the plaintiff urges that these facts, considered with the allegations of defendant’s "answer, in which defendant set up that the mortgage was executed to plaintiff for his interest in property which her husband was buying for the benefit of the community, establishes that defendant had purchased his rights under the agreement for the purchase of the property from Nelson, and that such purchase was not in violation of the law, which at that time concededly prohibited the wife from binding herself or her property for the debts or obligations of the husband or community (Article 2398, C. C.; Lorio vs. Gladney, 153 La. 993, 97 So. 16), and plaintiff further urges that he having relinquished his rights under the agreement with Nelson in consideration of the obligation of defendant, as evidenced by the notes and mortgage given by her, she is estopped to contest the validity of the notes or mortgage.

In support of the first proposition it is apparently contended that under the provisions of Act No. 219 of 1920 defendant, Mrs. Gillespie, having separate property, could, have purchased from plaintiff his rights under the promise of sale, and could have obligated herself personally and hound her separate property for the payment of the price, and the evidence showing that she had given her obligation and bound her separate property to secure same, it must necessarily be assumed that she had purchased plaintiff’s rights under the agreement of sale, in default of affirmative proof that the purchase was by the husband for the benefit of the community.

The law presumes that all purchases made by either the husband or wife are for the benefit of the community (Article 2402, C. C.) and the mere fact that the wife may have given her notes or held herself out as obligated for the payment of the price of property, where the husband had knowledge of and consented to the transaction, as was the case in the present instance, would not necessarily affect the presumption, and whatever weight might be given to the circumstances that the wife had given her obligation for the payment of the price of property in determining whether or not the purchase was for the benefit of the community or the benefit of the wife, it is of little if any significance where the husband was a party to the negotiations which when consummated inured to the benefit of the community.

In the present instance, in default of evidence affirmatively establishing that the plaintiff transferred to the defendant his rights under the agreement to purchase, we may not assume that the parties in their negotiations had in view two separate transactions, one whereby the wife would acquire, for her separate benefit, plaintiff’s rights under the agreement to purchase, and the other hy which she would relinquish the rights acquired by her in favor of the husband or community, as the latter transaction would clearly be in violation of law, which forbids contracts between the husband and the wife (Articles 1790, 2446, C. C.; Act .No. 219 of 1920), but, on the other hand, the transactions between the parties should be considered as a whole, and. the evidence showing that the community of which the husband was the head and master had acquired the property in consummation of the negotiations between the plaintiff and defendant and her husband, it should be assumed that such was the purpose of the negotiations and transactions of the parties, and that any transfer or relinquishment of plaintiff’s rights under the agreement or promise to sell, was for the benefit of the husband of defendant or the community, and the obligation of defendant given in payment of or for the relinquishment of the right to the husband of defendant, was in violation of the law (Article 2398, C. C.) prohibiting her from binding herself or her property for the obligations of her husband or the community.

Our conclusion being that the notes were given in violation of a prohibitory law, the plea of estoppel cannot be sustained (Chaffe vs. Oliver, 33 La. Ann. 1009; Harang vs. Blanc, 34 La. Ann. 632), and was properly overruled by the court.

The judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,972
    Orleans
    SOUTHERN v. CITY OF NEW ORLEANS
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Andrew B. Booth, Jr., and M. C. Scharff, of New Orleans, attorneys for plaintiff, appellee.
    W. McL. Fayssoux, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a negro laborer, employed by the U. S. Government in connection with its Mississippi-Warrior Service, brings this suit against the City of New Orleans, for personal injuries alleged to have been sustained while in the course of his employment on the river front, in connection with unloading of sugar from certain box cars on the switching tracks of the Public Belt Railroad.

At the time of the accident, plaintiff was in one of the box cars engaged in the removal of the sugar, when for some reason, a switching operation was commenced, and ended with what is alleged to have been an improper and unnecessarily violent stop, causing a loaded trailer, or truck, containing 2500 pounds of sugar, to fall and strike and injure plaintiff.

The defendant challenges the right of plaintiff to be in the box car, and charges him with negligence in that he remained in the car during the switching operation. It is also claimed that the stop was neither unusual, nor violent, but such as is customarily made under similar circumstances.

There was judgment for plaintiff in the sum of $1500.00, and defendant has appealed.

On the first point urged by defendant, to the effect that plaintiff was a trespasser, we find the evidence to be to the effect that it whs customary for employees of the Mississippi-Warrior Service, to remain in the box cars of defendant, during unloading and switching operations; that plaintiff had been in the employ of the Government for nearly two years; that it was his duty to remain in the cars. The foreman of the Mississippi-Warrior Service so testified. After the accident suffered by plaintiff, the defendant prohibited all persons from riding in its box cars during switching operations, but there was no objection to the practice before that time.

We are satisfied that plaintiff was not a trespasser, and that he was where he should have been, at the time of the accident, in the proper discharge of his duties, and that he was not negligent.

The cases cited by counsel for appellant, Bollinger vs. T. & P. Ry. Co., 47 La. Ann. Rep. 721, 17 So. 253, 49 Am. St. Rep. 379, 120 So. 34; Petrue vs. La. Western R. Co., 127 La. Rep. 722, 53 So. 969; Morris vs. Great Southern Lumber Co., 132 La. Rep. 307, 61 So. 883, are not apposite here. The plaintiff was a licensee and, according to the custom obtaining, was permitted to ride in the cars during the switching movement.

In Ingram vs. Kansas City S. & G. R. R. Co., 134 La. Ann. 377, 64 So. 146, 50 L. R. A. (N. S.) 688, it was held:

“Where, according to a general custom, newsboys are permitted to ride the street railway cars to sell and deliver papers, a boy is not a trespasser while on a car selling a paper unless the right to remain on the car has been terminated by reasonable notice.”

See also Lampkin vs. McCormick, 105 La. 418, 29 So. 952, 83 Am. St. Rep. 245.

As to whether the defendant was negligent in the operation of the train, the evidence is conflicting. All of the train crew testified that the stop was not unusual, not a “bad stop,” but a good one. though the engineer admits that it was a “sudden stop.”

ft is clear, however, that the stop must have been very sudden and violent, because two trucks laden with 2500 pounds of sugar were overthrown, one of which struck the plainitff in this case, and caused his injury. These trucks were so constructed that an ordinary jolt would only have the effect of moving them sidewise because the front- axle was on a sort of swivel permitting free movement in any direction, the rear axle being fixed. Consequently, in addition to the great weight of the sugar, which was on the truck, the mechanical construction was such as to require a very violent jolt, one wholly inconsistent with the careful operation of the train, in order to upset the truck and injure the plaintiff.

We are, therefore, of the opinion that the switching movement was carelessly ‘JBO 91R rpiq-M. o; UtB-t} 91R pun pg^nooxe in which plaintiff was riding, was attached, was negligently operated. This is the more evident when it is considered that a similar accident had never occurred, though the same conditions had often obtained.

Plaintiff’s injury consisted of a fracture of the elbow. He spent considerable time in the Marine Hospital and when finally discharged had not entirely recuperated. There is medical testimony to the effect that he will not be able to do laborious work. He was earning $4.50 per day and unable to work for considerable time. The amount awarded by the trial court, $1,-500.00, meets with our approval.

For the reasons assigned the judgment appealed from is affirmed.


author: GLEASON, J. ad hoc.

text:
    No. 11,107
    Orleans
    SCHMIDT v. LEDBETTER
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Herbert W. Kaiser, of New Orleans, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

GLEASON, J. ad hoc.

The plaintiff sues defendant to recover the sum of $1400.00, together with interest and attorney’s fees, growing out of a deposit for the (purchase of real estate made by the plaintiff with L. H. Jones, agent of defendant.

The defendant answered, denying the authority of the agent to accept the deposit, and alleging that the deposit was made not with him as the agent of defendant but as the agent of plaintiff.

There was judgment for the plaintiff for the amount of the deposit, together with interest from judicial demand, but denying the right of recovery for attorney’s fees. From this judgment, defendant appeals. Plaintiff answered the appeal and prayed that the judgment be amended by allowing attorney’s fees and by also allowing damages for a frivolous appeal.

OPINION

The transaction grows out of a document dated April 14, 1926, written on a real estate form containing the usual stipulations whereby William J. Schmidt offers to purchase the property 5900 Prytania Street for a consideration of $14,-000.00, and also offers to deposit with George Danziger, real estate agent, the sum of $1400.00 on account of the purchase price. The document also contained the further stipulation signed, by Jones and Schmidt that the deposit should be made with L. H. Jones instead of George Danziger, as originally provided. This agreement was accepted by L. H. Jones, agent acting for defendant herein.

The authority under which Jones acted is a written authority in the usual form employed by real estate agents, dated February 10, 1926, signed b^ Benjamin A. Ledbetter, and authorizing him to sell the said property for a consideration of $15,000.00, and also authorizing him to accept ten per cent deposit as a part of the purchase price, and further stipulating for the payment of commissions, etc., with the usual proviso that a lesser price should be approved by the defendant, Benjamin A. Ledbetter.

The offer of Schmidt was for a lesser amount, and this .offer,'therefore, required the signature of Ledbetter. This signature was had through the agency of Karl S. Ledbetter who signed for the defendant, as shown by the document dated April 15, 1926, and the agency of Karl S. Ledbetter to sign for the defendant herein is judicially admitted.

The point made and upon which the defense seems to hinge is that, notwithstanding the acceptance by L. H. Jones, as agent, of the offer of April 14th, that in the confirmation of said offer under date of April 15, 1926, whereby the lesser price was accepted by Karl S. Ledbetter, agent for defendant, L. H. Jones signed as agent for purchaser, and, therefore, that the deposit was made by him as the agent of the plaintiff and not as the agent of defendant.

We believe a reading of the documents, which must be taken as a whole, discloses conclusively that the document of April 15th was merely a confirmation by Karl S. Ledbetter, as agent for the defendant, of the acceptance by Jones of the lesser price, and that Jones was acting as the agent of the defendant by virtue of the authority vested in him by the document dated February 10, 1926.

The defendant was properly put in default by a tender to perform on the part of plaintiff.

The judgment, insofar as it holds defendant for the amount ■ of the deposit, together with interest from judicial demand, is correct and should be affirmed.

We are not advised as to the reasons why the lower court did not allow the attorney’s fees as prayed for, because the documents sued on contain express and reciprocal obligations in favor of both the promissor and promissee to pay such reasonable attorney’s fees as may be incurred for a breach of the contract. The attorney’s fees prayed for, to-wit, $280.00, are proven, are reasonable, and should be allowed.

We are not inclined to consider the appeal taken herein as frivolous within the intendment of the law. The defendant is represented by able counsel, and the confusion in the documents brought about by the fact that Jones seemingly signed the document of April 15th in the dual capacity was sufficient to relieve their defense from a charge of frivolity. The law is not intended to penalize those who take an appeal in good faith and without obvious intention to impose on the time of the Court. The prayer for damages for frivolous appeal is, therefore, disallowed.

The judgment of the lower court is amended by adding thereto the sum of $280.00 as attorney’s fees, with ‘ interest thereon from judicial demand, and, as thus amended, is otherwise affirmed, appellant to pay the costs of appeal.


author: JONES, J.

text:
    No. 11,435
    Orleans
    KELLY v. N. O. PUBLIC SERVICE, INC.
    (April 1, 1929. Opinion and Decree.)
    Dufour and St. Paul, Leonard B. Levy, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Miss Kelly sues for damages for personal injuries alleged to have been caused by the front right shoulder of a car of defendant negligently striking her sister, and throwing her with such violence against plaintiff that plaintiff was knocked down on the pavement at the corner of Tulane and South Rampart Streets, in this City. It is further alleged that, at the time, plaintiff and her sister were standing at the regular waiting place for passengers to board Tulane Belt cars at the downtown • wood side corner of Tulane and Rampart, with transfers from a Jackson car, from which they had just alighted; that the car, which was wider than cars usually are, projected six inches over the edge of the neutral ground into the street, where plaintiff and her sister were standing; that no gong was sounded and she had no notice of the approaching car, when the impact occurred, about 8:00 p. m., April 6, 1926.

The answer, while denying most of the allegations, admits that passengers from the Jackson cars alight at the corner of Common and South Rampart Streets to board Tulane Belt cars on South Rampart, on the downtown side of Tulane Avenue, where there is a narrow, slightly elevated neutral ground; it avers that Miss Kelly carelessly stepped too near the track, as the car was approaching with due care, and under control, and was struck by the front end thereof.

There was judgment for defendant, rejecting plaintiff’s demand at her cost, from which the latter prosecutes this appeal.

After reading the record carefully we. j find the facts as follows:

. Plaintiff and her sister were standing in the street near the neutral ground at the downtown lake corner of Tulane and Rampart Streets, waiting for an outbound Tulane car. They had just alighted from a Jackson Avenue car, on which they had been given transfers to board the second car. Standing near them, but a few feet farther up on the curve, were various other prospective passengers, all of whom boarded the Tulane car without difficulty, as the hang-over of the car was not sufficient to endanger any prospective passenger exercising due care. Although plaintiff and her sister were standing in a safe place on the asphalt, well out of the reach of the car, which they saw for some distance as it was approaching, when it was turning into the curve just before its regular stop, and going at not more than eight or ten miles per hour, plaintiff’s sister seems to have become suddenly excited and to have stepped back. Consequently, the sister was struck by the right shoulder of the car on her left temple and was thrown against plaintiff with such violence that plaintiff was knocked down and suffered a sacro-iliac sprain.

At best, the argument of plaintiff’s able attorney is tenuous and inconclusive. He contends that the burden of proof was on the carrier to show how the accident happened, because plaintiff was a passenger, that defendant has failed to bear this burden, and, consequently, liability necessarily results. To support this contention as to burden of proof in passenger eases, the following decisions are quoted:

Hopkins vs. National Surety Co., 154 La. 64, 97 So. 297.

Julien vs. Wade Hampton, 27 La. Ann. 377.

LeBlane vs. Sweet, 107 La. 268, 31 So. 766.

In support of his contention that plaintiff was a passenger he quotes no Louisiana case, but various common law decisions, although there is one Louisiana case holding to the contrary, namely, Carey vs. N. O. Public Service Inc., 3 La. App. 217.

However, we do not find it necessary to pass upon these legal questions, as the question of fact .which forms the basis of the legal argument must be decided against plaintiff. Under the facts as found above, it is clear that the accident was caused by the carelessness of plaintiff’s sister, for which defendant was not responsible.

The judgment is affirmed.


author: WESTERPIELD, J.

text:
    No. 11,086
    Orleans
    HEBERT v. N. O. PUBLIC SERVICE, INC.
    (January 21, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused hy Supreme Court.)
    Clancy A. Latham, of New Orleans, attorney for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   WESTERPIELD, J.

Plaintiff brings this suit for damages resulting from physical injuries alleged to have been sustained by reason of a fall she suffered, due, it is claimed, to the premature starting of a street car operated by defendant company while she was in the act of alighting from the front step.

The defendant denies that the accident happened in the manner' claimed by plaintiff and imputes her fall to plaintiff’s carelessness, or weakness, in alighting from the car, which, it is insisted, remained stationary until after plaintiff had alighted and fallen.

There was judgment below for plaintiff in the sum of $4,800.00 and defendant has appealed.

The plaintiff’s testimony is not impressive. She first states that the car gave a violent jerk at a time when she had one foot on the platform and one on the step, and, subsequently, that the jerk occurred at a time when one of her feet was on the step and the other about to touch the ground. Several witnesses to the occurrence testified in behalf of plaintiff, but none of them saw the car stop or the plaintiff fall. On the other hand, three witnesses testified that the car did not start prematurely after stopping for the purpose of permitting plaintiff to alight. Two of these witnesses, the conductor, and a power house employee of the defendant, who happened to be in the street ear on his way to work, may be said to be witnesses whose testimony is to some extent affected by their employment; hut the third, a sea captain by the name of Jones, who was a passenger in the car at the time, corroborates the testimony of defendant’s employees. He says that, when the car reached the corner, plaintiff, who was carrying a large bundle, alighted, and that as she did so she appeared to turn her ankle and fall, dropping her package as she fell. He is quite positive that the oar stopped at the usual place and did. not start again until after the conductor had assisted plaintiff to her feet and helped her in crossing the street.

The case was tried by a jury, and, as previously stated, resulted in a verdict of $4,800.00 in plaintiff’s favor. It is evident that the jury adopted the plaintiff’s version of the accident.

We are very reluctant to disturb the jury’s finding and substitute therefor our own conclusions upon the facts as they appear in cold type in the record, without the opportunity of seeing and hearing the testimony from the living lips of the witnesses. We fully appreciate the advantage possessed by the jury in reaching their conclusions and are conscious of our own limitations in that regard. Nevertheless, under our peculiar (and to the mind of the writer, unfortunate) system of jury trials in civil cases, it is our duty to set aside a judgment based upon the verdict of a jury whenever it appears to us erroneous, and to substitute therefor such judgment as in our opinion should have been rendered, whether the case turn upon a question of fact or of law. Perhaps the system which prevails in our sister states is not more to be desired, but there, as we understand, the appellate court can only reverse and remand, and then only for errors of law. In such practice there is at least the merit of ultimate reliance upon the jury as a fact finding instrument in theory, whatever may be the practical effect. With us the jury’s findings are of such brief authority as to afford little justification for the loss of time and inconvenience to our citizens which compulsory jury service entails.

The judgment appealed from is, for the reasons assigned, reversed, and it is now ordered that, there be judgment in favor of defendant, dismissing plaintiff’s demand at her cost.


author: JANVIER, J. WESTERFIELD, J.,

text:
    No. 11,321
    Orleans
    SMITH v. I. C. R. R. CO.
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Emmet Alpha and Claude L. Johnson, of New Orleans, attorneys for plaintiff, appellant.
    Wm. A. Porteous, Jr., of New Orleans, attorney for Maryland Casualty Co., intervener.
    Arthur A. Moreno, of New Orleans, attorney for defendant, appellee.
    WESTERFIELD, J., dissents.
   JANVIER, J.

This suit is-the outgrowth of an accident in which Milton Smith was killed while driving a Ford tire repair truck across the tracks of defendant company at “Protection Levee,” just beyond the city limits of New Orleans, at about 2:00 p. m., on June 21, 1926.

Smith had been sent by his employer, Delta Service Station, to fix a tire for a Mr. Simon F. O’Dwyer, who lived a short distance farther from the City of New Orleans than the crossing where the accident occurred. After fixing the tire, he was returning to the city and was closely followed by O’Dwyer.

At the scene of the accident there were four parallel railroad tracks, two belonging to defendant and two to Louisiana Railway & Navigation Company. As Smith approached the tracks, the first was the Illinois Central inbound track, then its outbound track, then the two tracks of the Louisiana Railway & Nav. Co. Parallel to the road on which he was driving there was the so-called “Protection Levee.’’ This levee extended up to a point a few feet from the inbound track, but the end nearest the track was sloped, or graded, so that the toe was much nearer the track then the top.

As Smith neared the tracks, he saw a long freight train going towards the city on the first track. This train crossed the roadway from his right to his left. There is some conflict in the testimony as to whether he had to stop to allow this train to pass, or whether he approached the ■crossing just as the last car was passing over it and, therefore, only reduced his speed. Whichever he did, it is certain that as soon as the last car passed he put on speed and crossed the track on which the train had, but an instant before, crossed the roadway. As he reached the second track he was struck by a locomotive of defendant company, going away from the city, that is, in the direction opposite to that in which the other train had passed. His truck was found after-wards at a point estimated by plaintiff’s witnesses as thirty feet away from the track, practically demolished, and he, himself, was so badly injured that he died very soon after being struck.

Plaintiff makes all the usual charges of negligence; that the speed of the train was excessive; that the whistle was not blown; that there was no flagman at the crossing, and that a particularly dangerous situation existed because of the obstruction to the view which resulted from the location of the “Protection Levee,” and from the confusion resulting from the running of two trains so near together and in opposite directions.

Before discussing the actions of defendant’s employes, it seems to us advisable to determine whether Smith, himself, was free from fault, because, whatever may have been the negligence of- defendant’s employes, plaintiff cannot recover if Smith was guilty of any negligence which contributed proximately to the accident.

We are immediately impressed with three significant facts:

First: After the passing of the first train, Smith did not wait to see if the other track was clear. Plaintiff’s witness, O’Dwyer, says:

“A. He was stopped forty feet back and as soon as the caboose or last car passed, he started.
“Q. And he never did stop?
“A. No, sir.
“Q. And he started as soon as he could?
“A. He was back forty feet and as soon as he could he started.
“Q. And after he started he kept going?
“A. He never stopped any more.”

The second fact with which we are impressed is that Smith’s truck, according to plaintiff’s witnesses, was found thirty feet or more, not along the track in the direction in which the train was going, but away from the track in the direction in which it, itself had been traveling. This seems to us to indicate not necessarily speed on the part of the train, but certainly speed and momentum on the part of the automobile truck.

The third fact to which we refer is that Mr. George Schoenberger, a civil engineer of great reputation and a man in whom we, as well as all who knew him, had implicit confidence, made certain observations and measurements at the scene of the accident and testified that when the automobile reached a point twenty-eight feet from the track on which Smith was killed, its driver could see, into the direction from which the train came, a distance of 5,660 feet (Transcript p. 37).

It should be borne in mind that the tracks and the roadway do not cross at right angles, and that a person driving in the direction in which Smith was traveling was, to a considerable extent, facing towards the direction from which the train came. The slightest care on Smith’s part, the slightest glance up the track, the slightest delay after the other train had passed, would have averted the accident.

Plaintiff is faced with the overwhelming burden of distinguishing this case from the hundreds of similar crossing cases in which the courts have held:

“When one approaches a point upon the highway, where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards as ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption.
“In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively urp and down the track.
“Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railways crossings; but no failure on the part of the railroad company to do its duty will excuse anyone from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.”

Eyma Brown vs. Railroad Co., 42 La. Ann. 355, 7 So. 682.

If plaintiff can recover here, what becomes of the doctrine of Baltimore & Ohio R. R. vs. Goodman, 275 U. S. 66, in which the Supreme Court of the United States said:

“Goodman was driving an automobile truck in an easterly direction and was killed by a train running southwesterly across the road at a rate of not less than sixty miles an hour. The line was straight, but is said by the respondent that Goodman ‘had no practical view’ beyond a section house two hundred and forty feet north of the crossing, until he was about twenty feet from the first rail, or, as the respondent argues, twelve feet from danger, and that then the engine was still obscured by the section house. He had been driving at the rate of ten or twelve miles an hour, but had cut down his rate to five or six miles at about forty feet from the crossing. It is thought that there was an emergency in which, so far as appears, Goodman did all that he could.
“We do not go into further details as to Goodman’s precise situation beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train .stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency, it was his own fault that he did not reduce his speed earlier, or come to a stop.”

Plaintiff contends that the whistle was not blown. We believe that the negative testimony of plaintiff’s witnesses that they “did not hear any whistles,” is overcome by the positive testimony of the crew, who give reasons for being so certain that it was blown not once, but many times.

That the brakes vers not applied in emergency and only a service stop was made is explained by the engineer on the ground that the car shot out in front of him and was struck before he could do anything at all, and that, when he saw that the crash was so imminent, and that there was no possibility of averting it by any action of his, he instinctively realized an emergency stop might endanger the lives of the banana messengers on the train.

Of all the cases cited by plaintiff, only one seems to us to require explanation and differentiation, and that one only because the accident which gave rise to it took place at the same crossing at which Smith was killed. That case is Betz & Son vs. Illinois Central R. R. Co., 161 La. 929, 109 So. 766. In the Betz case the vehicle was going m the opposite direction from that in which Smith was traveling, so that in the first place the train came upon it from the rear instead of from the front, as is the case here. In the second place the court found in the Betz case that the view of the driver was obstructed, where as here the evidence is conclusive that he could have seen for nearly a mile had he looked. And last and most important of all, in the Betz case the vehicle had traversed three tracks, in full view of the engineer, who was running his engine at only about eight miles an hour. The court found that “at that speed the train could be stopped in twenty or twenty-five feet.” So that, in the Betz case, we find an engineer who sees a vehicle about to go over a track on which his engine is approaching at a slow speed: its driver manifestly oblivious of the approach. of the locomotive. An application of the brakes would have averted

the crash. The engineer, even at that late moment, had it within his power to save the situation; he had the “last clear chance.” Here, the vehicle dashed out from its position of obscurity immediately in front of the locomotive. The engineer not only did not have the “last clear chance” but he had no chance at all.

It would be of no benefit to analyze the conflicting testimony. Some of it is absurd; much of it is manifestly colored. The statement that Smith’s body was thrown forty feet into the air is plainly absurd. The statement of O’Dwyer that there was no “stop” sign at that crossing, but that one was put, there the next day, is proven to be absolutely untrue.

But all of these questions are of no importance. Such conflict as there was in the evidence was resolved by the jury in favor of defendant, and the trial judge, on motion for a new trial, stated:

* * the verdict of the jury meets with my absolute approval.”

One fact stands out. Smith could have seen had he looked. That fact bars recovery.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost of ap pellant.

WESTERFIELD, J.,

dissenting:

I believe the accident to have been caused by the negligence of the train crew alone and therefore respectfully dissent.


text:
    No. 11,331
    Orleans
    STOLTZ v. MICHEL
    (April 1, 1929. Opinion and Decree.)
    Alfred M. Guilbeau, of New Orleans, attorney for plaintiff, appellee.
    Brittingham and Tycer, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit on a promissory note for $200.00, with interest thereon at eight per cent from September 15, 1927, until paid.

The defense is want of consideration. The trial court gave judgment as prayed for and defendant has appealed.

The evidence shows that plaintiff had a sixty-day contract to sell certain real estate for defendant for $35,000.00 on a four per cent commission; that defendant, thinking another agent could sell the real estate in a shorter time and wishing to save the payment to plaintiff of $700.00, to which he would have been entitled if the second agent had made the sale, compromised with plaintiff by giving him this note. When the note was given plaintiff destroyed his contract for the sale of the real estate.

Clearly there was adequate consideration for the note.

The judgment is therefore affirmed.


text:
    No. 11,014
    Orleans
    REESE ET AL. v. BESHEL ET AL.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    R. ,A. Dowling and W. R. Kinsella, of New Orleans, attorneys for plaintiffs, appellants.
    Gordon Boswell, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Miss Stella May Reese sues for compensation under the workmen’s compensation law for the accidental killing, on December 31, 1926, of her brother, Martin Reese, who was employed as a laborer by the defendant.' The sole question for our- consideration is the dependency, vel non, of the plaintiff within the meaning of Act 85 of 1926, the latest amendment of the compensation statute.

Plaintiff testified that her deceased brother, whose earnings were admittedly $14.00 per week, and contributed $6.00 to her personal use, and contributed $6.00 to the maintenance of the household, which included, besides herself and her deceased brother, another brother, and a nephew. It appears that the plaintiff, Miss Stella Reese, was the housekeeper, her mother and father being dead, and her brothers residing with her, unmarried. She was thirty-five years of age at the time of the trial, and not otherwise occupied than as housekeeper. The main support of the household was the surviving brother, who was a teacher in the Warren Easton High School. A third brother, who resided in Abita Springs, La., testified in his sister’s behalf that the deceased occasionally gave her money, but that the mainstay of the household was his brother, Professor Reese, the teacher in the high school.

It is argued that a laborer earning but $14.00 a week 'could not have contributed $6.00 'to the common fund out of which the household was operated and $6.00 for the personal use of his sister, and that; consequently, the evidence of the plaintiff is unreliable and cannot be believed. It may well be that the amount contributed by the deceased has been exaggerated by the plaintiff, but that he was of financial assistance to her seems very clear to us. Both she and her brother testified to that effect, though the brother does not corroborate her in her statement as to the amount of money contributed. Nevertheless, it is evident that in an humble establishment, such as this family maintained, a very little money went a long way, and the deduction of any small amount was acutely felt by the survivors. It is also contended that the deceased, whatever he might have contributed, could not have made any payment in excess of what might be reasonably considered compensation for his board and lodging. It is very difficult to determine what board a person of such limited income should pay. His entire salary would be insufficient to pay the board demanded by many very modest boarding houses, but since everything is relative, it might well be, that the deceased could, and did, pay the equivalent of a very acceptable sum to his sister for board and have something left to contribute to her personal needs. At any rate there is ample testimony in the record to substantiate plaintiff’s claim, and there is nothing to the contrary.

We conclude, therefore, that plaintiff was dependent and may properly claim compensation as a beneficiary of the compensation law. The pertinent section of the act reads as follows:

“For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.’’

In discussing this section very recently in the case of Emile F. Fuhrmann et al. vs. Walter Cook Keenan (No. 11,302), decided February 11, 1929, (not yet reported), this Court held that in all cases of dependency where the fraction of weekly payments computed according to this section is below the minimum of $3.00 a week established by the law, that the minimum must be allowed. Without going into the detailed mathematics involved, we observe that plaintiff is entitled to the minimum for the time mentioned in the statute, or three hundred weeks.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from he reversed, and it is now ordered that there he judgment in favor of plaintiff, Stella May Reese, and against the defendant, W. A. Beshel, for the sum of three dollars ($3:00) a week for three hundred (300) weeks, beginning February 18, 1927, with interest thereon at 5% per annum from each due date, and all costs.


text:
    No. 10,662
    Orleans
    R. T. PENDER, INC., v. VAN HOLTEN ET AL.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    John J. Reilley, of New Orleans, attorney for plaintiff, appellee.
    William C. McLeod, of New Orleans, attorney for defendants, appellants.
   JONES, J.

Plaintiff, a material furnish-er, sues the owner, William J. Montgomery, and the contractor, Cornelius Van Holten, for a balance due of $440.90, with interest and costs, alleged to be due for materials furnished and used at Montgomery’s residence in this city. Suit is brought against the owner because he failed to exact a bond as the law requires.

Attached to the petition are itemized bills running fro'm July 6, 1925, up to August 28, 1925, totaling $453.17, and showing credits for merchandise returned of $12.20, leaving amount claimed as balance due.

The answer filed by the contractor admits that he purchased all the materials shown in the account and used them on the owner’s house, but he alleges that these materials were purchased by him as agent of the owner, and not on his own responsibility.

The owner admits the purchase of the materials and alleges that only a portion of them were used in his house. He also avers that he did not exact a bond because plaintiff recommended Van Holten to him as a reliable workman. He then avers that Van Holten had failed to complete the contract and that he had been obliged to employ another painter at additional cost to him.

There was judgment below against both parties in solido. Defendant Montgomery alone has appealed.

The record shows that there was a written contract between Montgomery and Van Holten to do the painting and papering at Montgomery’s residence for the price and sum of $791.00, that this contract was not recorded and no bond was exacted. Plaintiff filed an affidavit of his claim in the mortgage office on December 23, 1925, and on the same day served a sworn account on the owner. The work had not been accepted by the owner when suit was filed. In addition to the admission in the answer by the contractor that he had obtained, and used the material, there is in the record a letter from the contractor to plaintiff of April 1, 1926, in which the correctness of this account and the use of the materials in Montgomery’s home are both admitted by the' contractor. When this document was offered in evidence it was objected to by the attorney for Montgomery on the ground that it was not binding on him. The evidence shows that all the material was sold and delivered at Montgomery’s residence and Montgomery admits that the greater part of it was used there and he cannot state exactly how much was used elsewhere.

This defense is not sound. The controlling law in this case is the first sentence of Section 5 of Act 139 of 1922, which remains the same in Act 230 of 1924. That sentence reads as follows:

“If the bond is found to be insufficient in amount or not to have a proper and solvent surety, or if the owner fails to require a bond, or if he fail to record the contract and bond during the time herein provided, he shall be liable to sub-contractors, journeymen, cartmen, truckmen, workmen, laborers, and mechanics and furnishers of material to the same extent as the surety would have been.’’

In the case of Richardson vs. Dasaro, No. 10,550 (unreported) of the docket of this Court, it was said:

“Under Section 5 of Act 129 of 1922 as amended by Act 230 of 1924, if the owner fails to require a bond he becomes liable to material men, etc., to the same extent as the surety would have been.”

It has been repeatedly held by the appellate courts of this state and by the Supreme Court, that the owner who fails to require a bond for a building contract becomes liable to material-men. ,

The Supreme Court, in the case of Graphic Arts Bldg. Co. et al. vs. Union Indemnity Co. et al., 163 La., p. 1, 111 So. 470, says:

“Contractor and his surety are equally liable to materialmen for material specially manufactured and delivered to contractor in accordance with plans and specifications of building, though unidentified portion amounting to one-third of materials was not used in building, but used, by contractor in other building's.”

Here they held surety liable, although all the material was not used in the building on which bond was given. Under' the law an owner failing to exact bond stands in the place of the surety:

Shreveport Mutual Bldg. Assn. vs. Whittington, 141 La. 41, 74 So. 591.

Audubon Homestead Assn. vs. Stef Lumber Co., 158 La. 1054, 105 So. 62.

Fidelity Homestead Assn. vs. Kennedy & Anderson, 158 La. 1069, 105 So. 64.

Madison Lumber Co. vs. Bachemin, vol. 118, No. 5, So. Rep., p. 141.

Madison Lumber Co. vs. McGrath et al., Adv. Rep., La. Courts of Appeal, vol. 9, No. 27, p. 105.

Favrot Supply Co., Inc., vs. Paul J. Bachemin & U. S. Fidelity & Guaranty Co., — La. App. —, 120 So. 723.

For above reasons, the judgment is affirmed.


text:
    No. 10,692
    Orleans
    PACKARD NEW ORLEANS CO., INC., v. ROSENGARTEN
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Theo. McGiehan and C. Strauch, of New Orleans, attorneys for plaintiff, appellee.
    Geo. Sladovich, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on eight notes of $25.00 each. The notes represent the final monthly installments due on the purchase price of' a certain Cadillac automobile, sold by plaintiff to defendant, and are secured by a chattel mortgage on the automobile. Both the notes and the act of mortgage contain a clause maturing all of the series of notes upon the failure to punctually pay any one of them, and, stipulate for the payment of 25% attorney’s fees, in the event the notes are placed in the hands of an attorney for collection, together with 8% interest from date.

The petition alleges that two of the notes, due respectively April 15th and May 15th, 1926, were unpaid. Judgment was asked for $200.00 with 8% interest and 25% attorney’s fees, with recognition of plaintiff’s lien and privilege, resulting from the chattel mortgage.

The defense, so far as it can be understood, (it is by no means clear), consists of an exception to the jurisdiction, and a denial that the notes referred to, were past due and unpaid.

There was judgment ' for plaintiff as prayed for and defendant has appealed.

The exception to the jurisdiction is obviously without merit, since the suit is one for $200.00, an amount in excess of the minimum jurisdiction of the Civil District Court, where this suit was filed.

As to the question of fact, raised by the defendant, to the effect, that there were no unpaid notes matured at the time the petition was filed, the record is overwhelingly to the contrary. Plaintiff has not asked for damages for frivolous appeal, consequently none will be allowed.

The judgment appealed from is affirmed.


author: WESTE'RFIELD, J.

text:
    No. 11,771
    Orleans
    KAHLE v. MICHEL
    (April 1, 1929. Opinion, and Decree.)
    Lemle, Moreno and Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Warren M. Simon, of New Orleans, attorney for defendant, appellant.
   WESTE'RFIELD, J.

This is a suit by a doctor for his bill. Defendant claims that the doctor’s bookkeeping is at fault and that many debit items are erroneous. The court, a qua, allowed a credit of $67.00, giving the doctor a judgment for $163.00.

The services extended over a period of more than a year and consist of many office consultations and some house visits. It seems to us that the judgment made sufficient allowance for erroneous charges, which, in some instances, were proven to have been made.

In any event, this case is • one to which the familiar doctrine, that findings of fact by a trial court will not be disturbed on appeal unless manifestly erroneous, is particularly applicable.

For the reasons assigned the judgment appealed from is affirmed.


author: GLEASON, J., ad hoc.

text:
    No. 10,697
    Orleans
    SURETY CREDIT CO., INC., v. MONTELEONE
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      L. H. Gosserand, of New Orleans, attorney for plaintiff, appellee.
    A. D. Danziger, of New Orleans, attorney for defendant, appellant.
   STATEMENT OP THE CASE.

GLEASON, J., ad hoc.

The plaintiff herein, a credit loan corporation, loaned to Mrs. A. V. Monteleone, one of the defendants herein, the amount sued for, taking therefor her promissory notes. The loan was made at a time when the said Mrs. Monteleone was suing her husband for a separation, and it is alleged was made on her representation that the money was used to supply necessaries for her maintenance and support. The suit is against both the husband and the wife.

The defense of A. Y. Monteleone, the husband, is that whatever was furnished to Mrs. Monteleone was furnished on her own credit, and that he had himself offered to and was providing all of the necessaries required by her station in life, and that she had no authority to borrow money for him or in his name.

There was judgment for the plaintiff against the defendant, Mrs. A. V. Monteleone, in the full amount sued for, but against A. V. Monteleone in a lesser amount, representing what the district court conceived to be the amount which Mrs. Monteleone used for necessaries which the husband would have otherwise been obliged to furnish.

OPINION.

The facts in this case disclose that, just before the defendant, Mrs. A. V. Monteleone, borrowed this money, she was living at the Monteleone Hotel, where she was furnished with board and lodging and with all the attire she needed for her wants, so that there was no reason whatever for her lacking in any of the necessaries which the husband is required to provide. She was at liberty to remain there as long as she saw fit, and there is no pretense that there was any interference either with her personal conduct or with her free use of the facilities of the hotel. The only contention is that it might have been more or less embarrassing to her to live in the same hotel with the husband, because of the possibility of meeting him in her egress and ingress from the hotel. This argument does not recommend itself to us. People can live in the same hotel for an indefinite period without the necessity of personal contact, and, in the absence of a showing that the husband made it impossible or difficult for her to live in the same hotel, the Court believes that in affording her adequate room and board in a first-class hotel, the husband has at least completely fulfilled the measure of his obligations, if he has not exceeded same.

While the law permits the wife to purchase necessaries when they are not provided by the husband, it does so on the theory that she is the agent of the husband for that purpose. In fact, the Code so provides, Article 1786. This authority, however, to act as the agent of the husband is a conditional authority and only avails in those instances where the husband himself has failed to make provision or to offer to make provision. The law does not give the wife the right to refuse the necessaries offered by the husband when adequate, and herself incur obligations for same. To hold otherwise would be to ignore completely the condition written into the statute and would be indeed a dangerous precedent to establish.

Even more far-reaching would be a precedent which would permit the wife to borrow money, as she has done in this case, and then determine for herself the method and mode of expenditure. True, it is argued that the husband had, after the wife left the hotel, advertised that he would not be responsible for the wife’s debts, and that thereby her facilities for purchasing goods were cut off and she was thereby relegated to the only avenue open to her, to-wit, people such as the plaintiff' who are ■ engaged in the personal loan business. There may be some force in this argument, if the use of the funds were followed completely and shown, under extraordinary circumstances, to have been used for necessaries. However, we do not consider it necessary to express a conclusion on this proposition, for the reason that the husband, having provided adequate necessaries at the Monteleone Hotel, she was not authorized even to buy necessaries direct. We consider the case of Schaeffer vs. Trascher, 165 La. 315, con-; elusive on this point.

Additionally, it appears from the record that the Court in which the divorce proceeding was pending had allowed Mrs. Monteleone alimony at the rate of $166.00 per month, and later $200.00 per month, which she would have had a right to collect and utilize, but, instead of doing so, she took an appeal from this allowance. Were the amount inadequate, it was not necessary for her to take an appeal. She could have accepted what the Court allowed and filed a motion to increase it. It would be a rather dangerous doctrine to establish that, pending a suit for separation from bed and board, where the Court has supervision over the needs and requirements of the wife and can exercise its authority, after due proof, by fixation of alimony, the wife of her own initiation could ignore the court’s jurisdiction and go out and make contracts purely on her own volition and then charge same against the husband.

In so far as Mrs. Monteleone is concerned, she has conclusively bound herself. It is argued that, at the time these funds were borrowed, the amendment to the Code, permitting the wife to bind herself for or with her husband, had not been enacted and that, therefore, the wife cannot be bound because she could not bind herself for or with her husband.

It is true that, at the time the loans were made, the wife could not bind herself for or with the husband, and, if the husband was bound, she was not. However, as before stated, she was either the agent of the husband or not, and, as we have held that she was not the agent of her husband, she was acting solely for herself.

It is further urged that Act 219 of 1920 only permits the wife who has separate paraphernal property to contract debts which bind her, and that the act does not apply to a wife who is not shown to have such property.

A fair and reasonable construction of the act, in view of the purpose intended, is that the act means nothing more nor less than that the wife cannot bind the community, but that she could bind herself. While the act is inartistically drawn, we believe it to be readily understood to mean the foregoing.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to dismiss the suit in so far as defendant A. Y. Monteleone is concerned, and that it be otherwise affirmed, appellee to pay all costs of appeal.


text:
    No. 10,696
    Orleans
    BURGESS v. KATZ
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Benjamin Y. Wolf, of New Orleans, attorney for defendant, appellee1.
    Puneky and Barrios and James J. Landry, of New Orleans, attorneys for plaintiff, appellant.
   WESTERFIELD, J.

Plaintiff sues for damages for the alleged unlawful entry of his home in his absence and the removal therefrom of his furniture, without his consent.

The defendant, who was the vendor of the furniture, admitted the entry of the premises and the removal of the furniture in the absence of plaintiff, but claims to have acted upon plaintiff’s instructions to that effect, and with his consent. He asks for judgment in reconvention in the sum of $386.00, the alleged balance due on the purchase price of the furniture. There was judgment for defendant, dismissing plaintiff’s suit on the main demand, and for plaintiff, dismissing the reconventional demand, as in the case of non-suit. Plaintiff has appealed.

Plaintiff purchased certain household furniture from defendant, on the installment plan for the sum of $593.00. He paid an aggregate of $207.00 on account in small weekly installments. He became involved in a personal difficulty with his brother-in-law, as a result of which the was charged with shooting with intent to kill, and in default of bail, was held for some three months in the Parish Prison, awaiting trial.

During plaintiff’s incarceration and while his home, where the furniture which he had purchased was located, was unoccupied, defendant’s employees in some manner effected an entrance, removed plaintiff’s clothing, placed it upon the floor, and caused the furniture to be loaded on a dray and brought to the defendant’s place of business. Upon plaintiff’s release from prison he endeavored to have the furniture restored to his possession, -without success. Whereupon, he consulted counsel who wrote defendant demanding that the property be returned. Samuel Katz, the son of defendant, who was associated with him in the furniture business replied as follows:

“We have yours of recent date, and in reply wish to state that this is the third letter of similar nature, each letter from different attorneys, demanding us to return to Transito Burgess some furniture which he claims we have removed from his premises without his .permission, while Burgess was confined in jail.
“We are again requested to inform Burgess thru you, the same as has been asked of us by his other attornies to which we have replied that, we nor any one of our employees have ever entered his premises or removed any furniture whatsoever, and that his contention that we removed or repossessed any furniture from his premises is utterly false and unfounded. Please inform Burgess to direct his search • for his furniture elsewhere, also inform Burgess that we have a claim of $416.00, against him for which we would immediately file suit against him, but in our opinion a judgment against Burgess would do us little or no good as he has no visible assets, therefore, we prefer to drop this matter and spend no more money suing Burgess. However, if he could furnish us with any information as to the whereabouts of the merchandise in question, we would be glad to take this matter up with him and see what could be done in connection with recovering this furniture.
“Trusting that you will inform your client accordingly we, are,
Tours truly,
Katz Furn. Co.
per—Sam’l. Katz.”

On the trial of the case, the defendant Katz attempted to repudiate the authority of his son to act for him in the matter and the son, the author of the letter, claimed that the letter referred to other furniture than that which had been removed from plaintiff’s home. But, when asked whether any other furniture had been bought by plaintiff, replied in the negative. The elder Katz, answered all questions concerning his son’s authority to write the letter, as well as other inquiries to which the answer was in no sense responsive, by denying that his son had such authority. He admitted that he did not answer letters addressed to him, and that his son attended to his correspondence, and the business of the store, as though it was his own, qualifying every answer, however, with an insistent denial of his authority to write the letter.

Insofar as Katz the younger is concerned, his testimony is wholly unworthy of belief, since his letter which incidentally is in his own handwriting, contains a circumstantial and detailed denial of the possession of plaintiff’s furniture, at a time when it was in his possession, as he thereafter admitted.

The testimony of Katz, the elder, though not so obviously false as that of his son, bears little resemblance to the truth. Since it is upon these witnesses that the defendant relies for proof of the alleged permission to enter plaintiff’s home, and remove his furniture, it is clear that no such permission has been established.'

We conclude, therefore, that the defendant was a trespasser, that he invaded plaintiff’s home, without authority and is liable in damage.

In the case of Perry vs. Junius Hart Piano House, Ltd., 10 Orl. App. 170, it was held that the vendor of a piano, under an agreement permitting him to repossess it and sell it in the event of failure of the purchaser to punctually pay the price, was not authorized to remove the property from the home of the vendee, during her temporary absence, without her consent and without notification. In that case the Court quoted from the opinion of the Supreme Court in Van Wren vs. Flynn, 34 La. Ann. 1158, as follows:

“No one appreciating the jealous care with which our law guards the sacredness of every man’s house and his lawful possession of property against invasion or disturbance, otherwise than by proceedings taken under the sanction and through the agency of the public justice, can question that, unless removed from its general principles by the effect of the agreement set up in defense, the acts which we have detailed constitued a gross outrage upon the rights and feelings of plaintiff, as a citizen and a man, for which courts of justice must either grant redress or sanction the personal exaction of satisfaction by violence.”

In Waller & Edmonds vs. Cockfield, 111 La. Reports 595, 35 So. 778, a case involving the lease of a cotton gin, which was repossessed by the lessor, without judicial procedure and without the consent of the lessees, upon the ground that the terms of the lease had not been adhered to, the Court said:

“The neglect of the lessee to fulfill his engagement may give cause for a dissolution of the lease * * * by suit in due form and not by arbitrary action of the lessor; that is, he can obtain a decree to dissolve the lease, but he is not authorized to take the law in his own hands and dissolve it himself.”

Lelonier vs. Welien Co., 13 Orl. App. 236; Perres vs. Munsch & Arnouldin, 6 La. 770; Thompson vs. Coupland, 6 Orl. App. 403.

In regard to the amount of damages, we think the sum of $250.00 a proper award.

As to the reconventional demand of defendant, the judgment below was one of non-suit and no appeal has been taken and no answer to the appeal filed in this court. The judgment in that respect has been acquiesced in by defendant.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from insofar as it dismisses plaintiff’s suit on the main demand, be reversed, and it is now ordered that there be judgment in favor of plaintiff, Transito Burgess, and against the defendant, Phineas Katz, in the sum of $250.00, with legal interest from judicial demand until paid and all costs. It is further ordered that in other respects the judgment appealed from is affirmed.


author: WESTERPIE'LD, J.

text:
    No. 11,273
    Orleans
    BESHEL v. N. O. THRIFT STORES, INC.
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      James B. Rosser, Jr., of New Orleans, attorney for plaintiff, appellee.
    William E. Westerman, of New Orleans, attorney for defendant, appellant.
   WESTERPIE'LD, J.

The Union Indemnity Company appeals from a judgment against it, as surety on the bond of J. D. LeBlanc, receiver of the New Orleans Thrift Stores, Inc.

The facts are not disputed. The Receiver, LeBlanc, filed an account, which was opposed and subsequently homologated with some modifications. The creditors whose claims had been recognized in the judgment of homologation attempted to collect from LeBlanc without success. LeBlanc was ruled into court and adjudged in contempt. Whereupon several creditors proceeded by rule against his surety, appellant herein.

A number of defenses were argued before us, one relating to procedure, which must first be considered. A surety, on a receiver’s bond, it is contended, cannot be proceeded against by summary process. This point is elaborately treated in the able briefs of both counsel, which have been of great assistance to the court. From the numerous authorities cited we have selected only a few for purposes of discussion and illustration.

It is first pointed out that express legislative authority is necessary to support a summary proceeding.

“Summary proceedings are to be used only when prescribed by law.” Suc. of Moore, 18 La. Ann. 512; Suc. of Irwin, 33 La. Ann. 68; Lbr. Co. vs. Houck, 138 La. 159, 70 So. 72; O. P. 754, 755.
“The right to summary process cannot be extended oeyond the cases expressly authorized by law.” Baker vs. Doane, 3 La. Ann. 434; Sumner & Co. vs. Dunbar, 12 La. Ann. 182; Mussina Bank vs. Alling, 12 La. Ann. 799; White vs. Commissioners, 4 Rob. 363; Ledda vs. Maumus, 17 La. Ann. 317; Suc. of Irwin, supra. Suc. of Jamison, 108 La. 279, 32 So. 381.
“The right to proceed by rule or motion implies the pendency of a suit between the parties, and is confined to incidental matters which may arise in the progress of r.he contestation, except in certain cases where the summary procedure is expressly allowed by law.” Thomas vs. Bourgeat, 6 Rob. 437; Copley vs. Conine, 3 La. Ann. 206; Baker vs. Doane, supra; Nolan’s Heirs vs. Taylor, 12 La. Ann. 201; Sharp vs. Bright, 14 La. Ann. 390; Hernandez vs. Hugh, 22 La. Ann. 245; Fischel vs. Mercier, 32 La. Ann. 707; Suc. of Jamison, supra; State vs. Jackson & Co., 145 La. 254, 82 So. 213.

Our Supreiñe Court in 1845 in Wright vs. Commissioners, 4 Rob. 365, indulges in the following interesting observation involving severe criticism of the loose practice of that day;

“Almost everything is attempted to be effected by a rule to show cause, in a summary manner. The regular rules of practice established by law, are disregarded, and a short hand system has crept into existence, which is a great abuse, and cannot be otherwise than injurious in its consequences. The causes for which the rule is taken, are generally very indefinitely stated; and it frequently happens that there are verbal answers given to them, so that it is often difficult, if not impossible, to ascertain what was the object of the parties, and what has been decided. We must express our disapprobation of so loose a system of practice and our determination to arrest it. There are cases in which rules on parties, and trials in a summary way, may be convenient, legal and promotive of the ends of justice; but we cannot any longer permit them to supplant, as they have in a great measure, the regular rules of practice.”

There is no law, the argument proceeds, expressly conferring any right to proceed by rule against a surety on a receiver’s bond.

After admitting his inability to discover any Louisiana case directly in point counsel cites several from our sister states.

In Thurman vs. Morgan, Receiver, 79 Va. 367, a rule to show cause under similar conditions was denounced in unmeasured terms as an improper proceeding.

“This decree is plainly erroneous. In no just sense were the sureties parties to the suit or officers of the court by reason of their suretyship. There was no fund in their hands, or which ought to have gone into their hands, subject to the order of the court, and they could not therefore, be summarily proceeded against by a rule to show cause. Their liability if any, grows out of their undertaking as sureties on the bond, and can be ascertained and enforced only by suit on the bond in a common law court, where full opportunity for making defense and the constitutional right of trial by' jury can be had. The circuit court was so plainly without jurisdiction to decree against them upon a rule to show cause as in the same proceedings to have condemned them to be hanged. Such a departure from the established mode of procedure renders the decree not only erroneous, but void.”

In High on Receivers, 4th Ed., Sec. 129, the law is as follows:

“While a court of equity has the undoubted power either by its decree or by rule of court, to provide that a receiver and his surety may be proceeded against in order to enforce the liability of the bond, in the original action, yet, where the court takes from the receiver an ordinary common law bond with surety, conditioned for the faithful performance of his duties -and a compliance with the orders of the court, the obligation of the surety is one which can be enforced only in a separate action at law upon the bond in which he may have his constitutional right of trial by jury. And the court has no power to proceed against him summarily by rule to show cause or by motion in the cause unless he has part of the trust fund in his hands and then only to the extent of such fund.”

In Soule vs. Worsham, 22 La. Ann. 79, it was held:

“The right to proceed against the sheriff or his successor, by rule, does not necessarily include the right to proceed in this summary manner against his sureties. In the absence of special provisions of law, permitting the summary process, the proceeding should be initiated by petition and citation.”

In Hernandez vs. Hugh, 22 La. Ann. 245, it was said:

“The law has not given this remedy against sureties on a sheriff’s bond. The want of citation is fatal, since they do not answer or otherwise waive citation.”

In Sharp vs. Bright, 14 La. Ann. 390, summary process was said to be improper in an action against a surety on a sequestration bond because:

“As this surety is not a party to the suit, in the progress of which the bond is taken, he cannot, in the absence of express legislation to that effect, be sued in the summary way.”

Baker vs. Doane, 3 La. Ann. 434, held such procedure improper as against the surety on a bond for the release of sequestration, because:

“The surety on a bond to release property sequestered, can in no sense be considered a party to the suit * * * In the absence of express legislation, the remedy of the judgment creditor against the sureties on such bonds would be by a new action in the ordinary form.”

Mussina vs. Alling, 12 La. Ann. 799, held a surety on a bond for costs must be sued on in an ordinary action, for:

“The law has not authorized the defendant in a suit to pursue a summary remedy against the security for costs, and, however judicious such a remedy might be, it cannot be deemed a legal mode of procedure, as long as another course is pointed out by law, and that is the ordinary action.”

The argument of opposing counsel is that the surety is bound in solido with his principal and not entitled to discussion. R. C. O. 3066; that appellant is a compensated surety to which the rule of strictissimi juris does not apply. Victoria Lumber Co. vs. Wells, 139 La. 500, 71 So. 781; that the bond was given to the judges of the Civil District Court and bound appellant to pay $1,000.00 upon failure of LeBlanc to faithfully perform his duties as receiver.

“Inasmuch, therefore, as upon the face of the papers, and according to his judicial admissions, the defendant bound himself in solido as a party of the contract sued on, and not as surety, it is immaterial whether the extension of time was granted to his co-obligor, as alleged by him.”

We are referred to Articles 3045, 2106 and 2091, R. C. C. To Rogers and Wood-all vs. Gibbs, 24 La. Ann. 468; Smith Bros. & Co. vs. New Orleans & N. E. R. R., 109 La. 782, 33 So. 769; Bonant vs. Rabito, 141 La. 986, 76 So. 166, and numerous others, not one of which is precisely in point, and, all of which, collectively falls short of establishing the proposition advanced.

Our conclusion is that a surety on a receiver’s bond cannot be condemned by summary ■ process. A rule to show cause, as has been pointed out, usually implies a pending suit, and, always requires specific legal authority. The judgment homologating the account is said to be res adjudicata. Borgeleon vs. Creditors, 4 Mart. N. S. 620; Lay et al. vs. Their Creditors, 14 La. Ann. 241; Succession of Wellmeyer, 34 La. Ann. 819. Conceding this to be true there are defenses open to the surety which it is entitled to present in the usual way.

In any event, we believe the view of our Supreme Court, as expressed in analogous cases, which we have freely quoted, is in accord with our conclusion in this case.

The other defenses need not be discussed.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the Union Indemnity Company, Inc., defendant in rule and against the plaintiff in rule, dismissing plaintiff’s demand.


text:
    No. 10,708
    Orleans
    DECUERS v. BOURDET
    (March 18, 1929. Opinion and Decree.)
    L. Walter Cockfield, of New Orleans, attorney for plaintiff, appellee.
    Warren O. Coleman and Gus Levy, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sued defendant on a $300.00 promissory note, and for the return of an alleged cash advance of $250.02.

Defendant admitted owing the note and reconvened for the return of two engagement presents, a diamond ring valued at $315.00, and a bureau set valued at $45.00.

The Judge of the District Court after dismissing the reconventional demand gave judgment for plaintiff for the amount of the ¡promissory note, dismissing as of non-suit the claim of $250.00. Defendant has appealed but there is no answer to the appeal.

Plaintiff argues that the trial judge erred in not dismissing the reconventional demand because it did not grow out of the same transaction as the main demand.

The record shows that the defendant borrowed the money evidenced by the note from his fiancee to prosecute his claim against the United States Government for injuries sustained while serving in the United States Navy, during the World War, that they might be married at an early date.

As the money would not have been advanced if there had been no marriage contract, and as the engagement presents were also given to crystallize and solemnize the same contract, the holding of the trial judge was correct on this point.

He dismissed the reconventional demand, because he found that defendant was primarily responsible for the breach of the engagement, but we do not find it necessary to pass on this doubtful point, as the law clearly sustains defendant’s contention, if the marriage does not take place, no matter by whom the breach is caused. Plaintiff’s remedy was a suit for damages for breach of promise, but she could not arbitrarily keep engagement presents as damages.

Johnson vs. Levy, 118 La. 447, 43 So. 46.

Art. 1897 of R. C. C. reads:

“The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage did not take place.”

Art. 1740 R. C. C. reads:

“Every donation made in favor of marriage falls, if the marriage does not take place.”

This is a literal translation of the Code Napoleon, Art. 1088, and the French commentators apparently agree that such gifts are revocable.

Laurent, Yol. 15, p. 208, Sec. 167, says:

“Une donation faite en faveur du marriage est une donation conditionelle; la donation n’ayant d’autre objet que de favoriser le marriage est par la meme faite sous la condition que le marriage en faveur duquelle elle a lieu s’accomplisse. Si la condition defaillit, il en resulte qu’il n’y a jamais eu de donation.”

Baudry-La Cantinierie, Vol. 11, p. 846, Art. 3939, says:

“Les causes de caducite de 1’institution contractuelle nous sont a peu pres connues d’apres les explications qui precedent; il suffira de les grouper ici.
“L’institution contractuelle devient caduque:
“1 Si le marriage, en vue duquel elle a ste faite ne se realise pas (Art. 1088).
“2 Si le donateur survit a 1’epoux donataire et a sa posterite. (Art. 1089).
“3 Enfin par la renonciation de 1’in-stitue et de tous ses descendants.
“Tous les auteurs s’accordent a reconnaitre l’existence de ces differentes causes de caducite de 1’instiution contractuelle.”

See also Fuzier-Hermann, Art. C. N. 1088.

Although these commentaries deal generally with gifts made in the marriage contract, the underlying theory which pervades the whole subject is that the consummation of the marriage is the end sought, and, therefore, the ultimate purpose of all such gifts. Necessarily, the failure of the essential condition, on which the gift is made, makes the gift nullable.

In Succession of Waldo, 156 La. 684, 101 So. 21, the Court held that the donation of real estate by husband to wife was revocable by the husband afteir the death of his wife.

For above reasons the judgment is 'amended to read as follows:

It is ordered, adjudged and decreed that there be judgment herein, in favor of the plaintiff, Miss Leonora Decuers, and against the defendant, John W. Bourdet, in the full sum of Three Hundred Dollars, with legal interest thereon from February 2, 1928, until paid, and for all costs.

It is further ordered, adjudged and decreed that there be judgment in favor of John W. Bourdet, plaintiff in reconvention, declaring him to be the owner of one diamond ring, valued at $315.00, and one bureau set, valued at $45.00, and ordering the plaintiff herein, Miss Leonora Decuers to return the said articles to John W. Bourdet, and in default of the return of the ring and dresser set, it is ordered that John W. Bourdet do have judgment against the plaintiff, Miss Leonora Decuers in the full sum of Three Hundred Sixty Dollars, with legal interest from judicial demand.

Costs of both courts to he paid by defendant, John W. Bourdet.