author: CULPEPPER, J.

text:
    No. 3400
    Second Circuit
    BOZEMAN ET AL. v. CRICHTON CO., LTD.
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)
    Mclnnis & Campbell, of Minden, attorneys for plaintiffs, appellants.
    A. C. Drew, of Minden, attorney for defendant, aippellee.
   CULPEPPER, J.

This is á petitory action instituted by plaintiffs to recover an undivided one-half interest in the following described tract of land and improvements, situated in the parish of Webster, alleged to be in defendant’s physical possession, to-wit: The NW% of SE% and N% of SW%, section 6, Tp. 18 N., R. 9 W., containing 120 acres, more or less, together with all the buildings and improvements thereon.

Prom a judgment rejecting plaintiffs’ demands, they have appealed.

Plaintiffs for cause of action allege that they are the sole heirs of Hattie Mitchell (born Lister), deceased wife of Balem Mitchell; that they are the sole issue of the marriage of said Hattie Lister and Balem Mitchell; that said above-described property was acquired by said Balem Mitchell, their father, in 1904, during the existence of the community between their said father and mother, and same fell into said community of acquets and gains; that their said mother died June 7, 1907, at which time the property still belonged to said community; and that the undivided one-half interest in said tract of land and improvements thereon as herein sued for Was thus acquired by plaintiffs from their mother.

There are five in number of plaintiffs, viz.: Mattie Bozeman, born Mitchell, wife of Prank Bozeman; Willie Mitchell; Jennie Ross, born Mitchell, wife of Tom Ross; Eva Henderson, born Mitchell, wife of Willie Henderson; and Arthur Mitchell— all of whom are of full age, except Willie Mitchell, who is a duly emancipated minor above the age of eighteen years. The death of Hattie Mitchell and the fact of plaintiffs’ heirship are fully proved by the testimony in the record. It is not shown by the record that there was ever any formal judgment of the court establishing the .death and heirship nor sending plaintiffs in possession of their mother’s succession. It will be noted that plaintiffs have prayed .for recognition and possession in connection with this suit.

Plaintiffs set up chain of title through mesne conveyance from the United States government down to the title deed from James M. Miller to Balem Mitchell, plaintiffs’ father, of date October 22, 1904, recorded in Conveyance Book 13, p. 497, Webster parish. They allege that defendant, Crichton Company, Limited, is in the actual physical possession of said property without any right or title whatever, and refuses to surrender possession without any good or legal cause.

Defendant answered, admitting its actual possession of the property, but denies ownership in plaintiffs, and allege ownership to be in defendant. Defendant alleges it purchased the property as a whole from Balem Mitchell under full warranty deed dated November 28, 1922, recorded in Conveyance Book 57, p. 200, Webster parish; also alleges its title runs back to the government from Balem Mitchell through the same chain of deeds as set up by plaintiffs.

On the day fixed for trial, January 4, 1928, one T. A. Glass filed an intervention and third opposition, claiming ownership of the property under a tax sale to him June 30, 1923, for unpaid taxes for 1922, assessed in the name of Balem Mitchell as owner.' It will be noted that the attorney who represented defendant in the main suit also represented the intervener and accepted service of the petition of intervention on behalf of the defendant the day the petition was filed. Intervener thereupon filed a plea of prescription of three years, over objections of plaintiffs’ counsel, interposing his alleged tax title as a bar to plaintiffs’ right to recover. The plea does not appear to have been passed upon by the court. On motion of counsel for defendant, who was also counsel for intervener, the case was continued to January 19, 1928. On that day the intervener, through his counsel, also counsel for defendant, the intervention was dismissed. On that same day defendant filed an amended answer, which is as follows:

“That paragraph 3 (of original answer) should be amended by adding the following —‘Answering further defendant shows that there is at this time, outstanding in the name of T. A: Glass, a tax title dated June 30, 1923, wherein the property herein in contest was conveyed to the said T. A. Glass for the unpaid taxes of the year 1922—which outstanding title is herein set up as a bar to the plaintiffs’ action.’ ”

Also on that same day, January 19, 1928, defendant filed, over objections by counsel for plaintiffs, a plea of prescription of three years in bar of plaintiffs’ right to recover, based upon the tax sale to Glass above referred to.

• Plaintiffs’ counsel calls the attention of the court, in his brief, stating that the court minutes show these filings (amended answer and plea of prescription) were made under objections of plaintiffs, but do not show the reasons for the objections, which were that the issues between plaintiffs and defendant were changed and that the allegations of the amended an-, swer contradicted the allegations of the original answer, and constitutes an attack on the title of defendant. Counsel argues that the objections should have been sustained, and, had they been sustained, it Would have practichlly put an end to the law suit. Prom the proof which followed upon the trial of the case, had the filing of the amended answer and tplea of prescription been disallowed by tha court, plaintiffs’ ' case would have been easily won. As a matter of fact, defendant in original answer did claim ownership of the property, and still maintains that position. To set up the tax' sale to Glass in the amended answer, and then interpose a plea of prescription based upon the sale, would, if the tax sale is valid, adversely affect defendant’s claim of ownership as well as that of its adversary. Under this state of pleadings defendant has undoubtedly (placed its alleged title in jeopardy. But it seems that defendant is not so much concerned about holding the property as it is to prevent plaintiffs from recovering it. Defendant’s position is that plaintiffs will have to stand upon the validity of their own title and not rest their ease upon the weakness of that of defendant’s. In this defendant is correct, and it is best that the case be proceeded with so as to determine the whole issue. While defendant has seen fit to inject into the suit the tax title in question, it gives plaintiffs the right and opportunity to attack it, and, if possible, brush it out of the way. In Telle v. Fish, 34 La. Ann. 1243, the court held:

“Plaintiff may meet title opposed to him by all means of attack, as if specially pleaded, even when such title is tax sale.”

The court further held:

“The well settled rule of law, that the validity of a tax sale cannot be attacked, collaterally, but only in a direct suit, does not apply to a petitory action, in which the defendant alleges the tax sale as his title. There, the plaintiff has the right to show the illegality of. the title oppose,d to him, though it be a tax sale prima facie valid.
“In such a case, all matters of defense set up in the answer must be considered as open tq every objection of law and fact, as if such objection had been specially pleaded”-—citing Hickman et al. v. Dawson et al., 33 La. Ann. 438.

Mr. F. A. Glass, who intervened in this case, claiming the (property under the tax sale in question, and who only at the last moment before the trial started dismissed his intervention, and who remained in court and was the principal witness fof. defendant, and who is the president and' manager of, and owner of nineteen-twentieths of all ,the capital stock in, defendant company, and used the same attorney (o represent him in his intervention, who. now represents his company, should have no cause to complain at the.. findings of the court as to the" validity, of his tax title, nor in any manner be prejudiced. thereby.

The question, therefore, for determination is the validity, vel noh, of the tax sale referred to above.

At the time the property was assessed in 1922, the title stood in the name of Balém Mitchell as record 'owner, and it was accordingly assessed in his name. On November 28, 1922, Mitchell conveyed it under warranty, deed to defendant, at which time defendant took over the actual physical possession of the property, and has since retained the possession, rented it out, and received the rents and revenues therefrom. These are the undisputed facts as disclosed from the pleadings and testimony of the witnesses. Defendant held this possession, of course, at the time the property was being advertised for 'sale and when the sale took place. Defendant continued its said possession after the tax sale, as owner, down to the present time, without any molestation • or demand for possession from T. A. Glass, the tax purchaser. Notice of tax delinquency was served upon Balem Mitchell, and not upon defendant. Under these conditions, the plea of three-year prescription interposed by defendant is untenable.

“Owner of record at time of advertisement and sale for taxes is to be regarded as a delinquent tax debtor within meaning of constitutional provision requiring notice to delinquent before selling, and, where notice of delinquency is not given such recorded owner, tax sale is null and void, even though property was assessed in another’s name.” Ryals v. Todd, 165 La. 952, 116 So. 395.

In Byrne v. Commercial Security Co., 7 La. App. 667, the court, in 'discussing article 233 of the Constitution of 1898, which corresponds to article 10, sec. 11, of the Constitution of 1921, the latter named article and section being the one relied on by defendant, has this to say:

“Jurisprudence has added two exceptions to the operation of prescription under article 233:
“1. When the nullities of the tax sale are radical or the description of the property insufficient.
“2. When the original owner or tax debtor at the time of the tax sale was in the real, natural, physical, or corporal possession of the property sold, C. C. 3427- • 3428-3429, and so remained until the filing of the suit against him. It is a badge of ownership and no prescription runs against the owner. His possession is a continuous protest against the tax title and interrupts-the prescription of three years.”

The court here cites a long list of decisions in support of its position. And the court further says:

“It is the absence of possession by the' former or original owner or tax debtor, which prescribes the .right of said tax debtor to question the validity of the sale.”

. And it further said:

“It is not necessary for the tax purchaser to take possession; it suffices that the original owner or tax debtor be not in possession. It makes no difference who acted as owner of the lot or who was in possession of it, as long as it was not the former owner. The rights of the tax purchaser could be suspended only by the actual possession of the former owner himself, or of some one for his account”— citing Slattery v. Kellum, 114 La. 288, 38 So. 170.

In Ryals v. Todd, supra, the record owner at time of advertisement and sale is construed to mean the delinquent tax debtor within the meaning of constitutional provision requiring notice to delinquent before selling at tax sale. And in the Byrne case just quoted from it is held that prescription does not begin to run as long as the original owner or tax debtor is in the real, natural, physical or corporeal possession of the property.

Under these decisions, and the cases cited thereunder, defendant herein, the Crichton Company, Limited, was the tax debtor. It was the record owner at the time of the advertisement and sale. It is clear from the pleadings and testimony in the record, and not disputed, that said defendant company has, thus held possession since the sale down to the filing of this . suit, -without any molestation or demand for (possession from any one. Under such circumstances, prescription has not even commenced to run as to the tax sale. The plea of prescription filed is therefore untenable, and is overruled.

This places the tax sale in position subject to attack as to its validity. Defendant contends that the sale is valid; plain.tiffs insist it is invalid. Under the many decisions of the courts of this state, it is unmistakably true that notice of tax delinquency must be served upon the record owner at time of the advertisement and sale.. Such person is construed as the tax debtor to whom the notice must be given by the tax collector. In this case the notice was not served upon the record owner and tax debtor, Crichton Company, Limited. It is nowhere contended that it was. On the contrary, it is admitted that the only notice served was upon Balem Mitchell, the record owner at the time the property was assessed for taxes. Such a notice amounts to a radical defect in the sale that followed. And it necessarily followed that the sale was null and void. Ryals v. Todd et al., 165 La. 952, 116 So. 395.

Since it is clear that the tax sale in question was null, and prescription has not -run against the tax debtor’s right to attack the sale, and since we hold that plaintiffs have the right to attack this tax sale by whatever means at their command, we conclude that said tax sale was and still is null and void, and operates no bar to plaintiffs’ right of recovery.

Defendant’s contention that plaintiffs are not in position to seek relief herein by reason of the fact that. they have never been recognized as the heirs of their deceased mother and sent into possession of her succession is, we think, without merit. The only effect flowing from such action on, their part would be their acceptance of the succession pure and simple, and thus become liable for its debts, if any. But, so far as their right to sue for the recovery of property belonging to the succession is concerned, they have that undoubted right. The proof is ample' that plaintiffs are in fact the sole heirs of the deceased wife of Balem Mitchell, and that the property sought to be recovered is the deceased’s community interest in the land and improvements thereon described in the petition.

The sale, or purported sale, by Balem Mitchell to defendant of the property described in the petition was undoubtedly null and of no effect in so far as it affected the one-half community interest of Balem Mitchell’s said deceased wife. The sale was made long after her death, without any legal authority and without being joined therein by • her heirs or legal representatives. Mr. Glass, who acted for defendant at the time, admits on the stand that he was aware that the title as to the half interest in the property belonging to Mitchell’s deceased wife’s succession was not good when he accepted the deed.

Plaintiffs have prayed that they may be recognized as the sole heirs of Hattie Mitchell, their deceased mother.

It is accordingly ordered that plaintiffs Mattie Bozeman, Willie Mitchell, Jennie Ross, Eva Henderson, and Arthur Mitchell be, and they are hereby, recognized and decreed to be the sole heirs at law to their deceased mother, Hattie Mitchell, born Lister; and as such entitled to the possession, in the proportion of an undivided one-fifth interest each, of the property belonging to the succession of the deceased, and especially thq .one-half interest in the property hereinabove described.

For the reasons assigned herein,' it is hereby ordered and decreed that the judgment of the lower court be reversed; and it is' now ordered that plaintiffs do have judgment against defendant decreeing plaintiffs to be the owners, and, as such, entitled to the possession, of an undivided one-half interest in and to the herein-above described property and improvements thereon. Defendant to pay costs of both courts.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3250
    Second Circuit
    GENERAL MOTORS ACCEPT. CORP. v. HAND (JAMES A. DENNY, Intervener)
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    Crow & Coleman, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for intervener, appellant.
   DREW, J.

Plaintiff filed foreclosure proceedings against defendant on a promissory note of $531, secured by a chattel mortgage on a Pontiac sedan automobile, 1927 model, bearing motor number 79505, and secured an order for a writ of sequestration for the seizure of said automobile, and prayed that its chattel mortgage, vendor’s lien and privilege be recognized and ordered enforced on the said automobile to the extent of the aforesaid note, interest and attorney’s fees. Under this writ of sequestration, the automobile was seized on September 10, 1927, and on September 21, 1927, James' A. Denny filed Ms intervention herein, claiming that the defendant was indebted to him for rent, and that the automobile was placed on the leased premises prior to the recordation of plaintiff’s chattel mortgage, and that intervener had not lost his lessor’s lien and privilege upon the car; and prayed that he, as lessor, be paid out of the proceeds of the sale of said car in preference and priority to the plaintiff.

Plaintiff filed an exception of no cause of action based on the proposition that the intervener had not prayed for a writ of provisional seizure, nor had he secured an order of court commanding and ordering the sheriff to retain in his hands and under his control the proceeds to be realized from the sale of the car. He also filed a plea of vagueness. The exception of no cause of action was overruled and the plea of vagueness sustained in.' part, and intervener ordered to amend his petition.

In response to 'said order, an amended petition was. filed by intervener. The trial judge rejected the demands of intervener and gave judgment for plaintiff, as prayed for. From this judgment the intervener has appealed.

The .plaintiff has neither appealed nor answered the appeal in this court. Therefore, his exception of no cause of action is not before this court for review.

The record in the case shows that the automobile was sold on February 22, 1927, and that plaintiff’s chattel mortgage was recorded on February 24, 1927. That the car was seized under plaintiff’s writ of. sequestration on September 10,- 1927, while the car was stored with Currie-Langford, Inc., automobile dealers in Shreveport, and after the car had been removed from the leased premises, James A. Denny filed his intervention on September 21, 1927. The testimony also shows that the defendant’s indebtedness to plaintiff was $531, with interest and attorney’s fees, and that he was delinquent in his payments at the time of the seizure.

The automobile was in the possession of the lessee and on the lessor’s premises before the filing for recordation of the chattel mortgage of plaintiff; therefore, it is clear that the lessor’s lien and privilege attached to said automobile on the day it was placed on the lessor’s premises, on February 23, 1927, and that at that time the lessor’s lien and privilege outranked plaintiff’s lien and privilege as vendor and holder of the chattel mortgage. The car was .taken to Texas, and off lessor’s premises in the early part of August or last of July, 1927, and remained off lessor’s premises for about five weeks, or more than fifteen days. It was returned to lessor’s premises on September 3d, and remained there until September 6, 1927, at which time it was stored by lessee with Currie-Langford, Inc. On September 21st, intervener filed his intervention, claiming the proceeds from the sale under said seizure.

It can be seen, therefore, that the intervention was filed on the 15th day after the car was removed from the leased premises and within the period fixed by article 2709 of the Civil Code.. The case therefore evolves itself into one question-—did the fact of the automobile being taken off the premises of lessor and remaining off for more than fifteen days during the month of August, 1927, cause intervener to lose his lien and privilege on the car, and when the car was again placed on the premises by lessee on September 3d, did the lessor’s lien and privilege again attach so as to prime the vendor’s lien and chattel mortgage of plaintiff?

The privilege and right of pledge given to the lessor by the articles of the Code must be strictly construed, and under the plain letter of article' 2709 of the Civil Code, the right of pledge exists as long as the property remains on the leased premises and it may continue for fifteen days after removal; but if it has been removed and the fifteen days have elapsed, the right of the lessor is gone and he has no higher or different claim upon the property than any other ordinary creditor.

Conrad v. Patzelt, 29 La. Ann. 465; Langsdorf v. Legardeur, 27 La. Ann. 363; Farnet et al. v. Creditors, 8 La. Ann. 373.

It therefore follows that after -the car had been removed from the leased premises in the early part of August and remained off the leased premises for more than fifteen days, the lessor’s privilege was lost. When the car was returned to the premises on September 3d, the lessor’s privilege and pledge again attached, but not so as to renew the privilege that had been lost, but attached as of date September 3, 1927. Therefore, the lien and privilege now held by intervener is one arising subsequent to the chattel mortgage and vendor’s privilege of the plaintiff. Plaintiff’s chattel mortgage and vendor’s privilege was in effect the latter part of August, 1927, by duly recorded act of chattel mortgage, at a time when intervener had lost his lessor’s privilege and events happening subsequent thereto could not displace plaintiff as ranking lienholder.

The judgment of the lower court was in favor of plaintiff and rejected the demands of intervener claiming the proceeds of the sale of the car in preference and priority to plaintiff. The judgment of the lower court is correct, and it is therefore ordered, adjudged and decreed that it be affirmed, with all costs. !


author: WEBB, J.

text:
    No. 3657
    Second Circuit
    CARLILE v. KIMBROUGH ET AL.
    (May 20, 1931. Opinion and Decree.)

      Goff & Goff, of Arcadia, attorneys for plaintiff, appellee.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellants.
   WEBB, J.

This suit was instituted by plaintiff against an alleged partnership composed of C. A. Kimbrough and J. T. Huckaby, and the individual members, to recover judgment against them for the sum of $1,230, with interest and costs.

Plaintiff alleged that the partnership was a commercial partnership engaged in the business of buying and selling oil and gas leases, and in drilling a well on one of the leases; that he had furnished wood for fuel used in drilling the well, and that J. M. Bogan, Bob Cooper, Jim Cooper, and R. -W. Driggers ', had been employed in drilling the well;-that there was due plaintiff, for wood furnished, $554.50, and to the respective workmen named, for services rendered, amounts aggregating $675.50, who had assigned their claims to plaintiff. ,

Plaintiff further alleged that J. T. Huckaby had guaranteed the payment of the respective amounts, and prayed for judgment against the partnership and the individual members in solido, and against J. T. Huckaby individually, for the aggregate amount of the claims.

Service of process was not had on Kimbrough, but service was made on the alleged partnership through J. T. Huckaby, and on J. T. Huckaby individually, who filed a motion praying that plaintiff be ordered to elect whether he- would proceed against the partnership and the individual members, or whether he would proceed against him individually, which motion was overruled, and Huckaby answered, under reservation of his rights in the motion, especially denying that there had been any partnership between him and Kimbrough, and otherwise pleaded, in substance, a general denial.

On trial judgment was -rendered against the partnership, as prayed for, and against Huckaby individually for one-half of the amount of the judgment rendered against the partnership, and rejecting plaintiff’s demand for judgment against Huckaby individually for the full amount of the claim.

Both plaintiff and defendant Huckaby appealed, but Huckaby has not made any appearance' here, and counsel for plaintiff has confined his discussion of the cause principally to-the failure of the court to award him judgment against Huckaby for the. full amount claimed.

The statement of the pleading shows that plaintiff cumulated two distinct causes of action, one against the alleged partnership and the individual members, and the other against one of the members, Huckaby, as a guarantor of the partnership debts. Under plaintiff’s allegation, the alleged partnership was an ordinary or particular partnership (American National Bank v. Reclamation Oil Ass’n, 156 La. 652, 101 So. 10; Phillips v. Ray, 1 La. App. 584), and it is not suggested that the members of a partnership, which is a distinct entity (Townsend v. Payne, 42 La. Ann. 909, 8 So. 626), may not guarantee the payment of the partnership debts; and it is, we think, apparent that neither of the alleged causes of action was contrary to or exclusive of the other, and, as to Huckaby, the actions were not improperly cumulated (articles 148, 149, Code Prac.). The motion to elect was therefore properly overruled.

Viewing the causes of action as against Huckaby distinctively, we find that the evidence adduced at least established that Huckaby had been held out and had represented to plaintiff and his assignors that he was a partner of Kimbrough in drilling the well, and, without regard to whether or not the evidence established that Kimbrough and Huckaby were in fact partners, the evidence supports the judgment holding Huckaby liable as a partner of Kimbrough (“Partnership,” R. C. L., vol. 20, p. 1067, et seq.; Robertson v. De Lizardi, 4 Rob. 300; Houston Canal Co. v. Kopke, 106 La. 609, 31 So. 156); and the only remaining question is whether or not. Huckaby was bound otherwise than as a partner of- Kimbrough for the debts incurred in drilling the ■well.'- -

Plaintiff alleged that Huckaby had personally, guaranteed the payment of his. claim and the claims of his assignors, and on trial parol evidence was introduced, over the objection of defendant, tending to show that Huckaby had bound himself with the partnership for the payment of the claims, rather than as a guarantor of the partnership debts.

Considering plaintiff’s allegation most favorably to him, and that the w.ord “guaranteed” was not used in the sense that Huckaby had bound himself to answer for the debt of another, and that parol evidence would be admissible under the pleadings to show that the promise or agree- . ment of Huckaby was not collateral, yet we do not find that the evidence established that Huckaby bound himself with the partnership. There was some conflict in the evidence relative to what was said by Huckaby, relative to payment of the claims sued upon. However, it clearly appears from the version of plaintiff that the promise or agreement of Huckaby was to be responsible for the debts of another, or to stand as surety for the payment of the debts. incurred in drilling the - well; and clearly parol evidence was not a.dmissible to prove the promise of 1 Huckaby to pay the debt of another, or to stand as security for the payment of such debt, and, although admitted, the evidence cannot be considered. Article 2278, Civ. Code; Graves v. Scott, 23 La. Ann. 690.

We are of the opinion that the judgment appealed from is correct, and it is affirmed . at defendant’s cost.


author: McGREGOR, J.

text:
    No. 4029
    Second Circuit
    PARISH OF OUACHITA v. F. STRAUSS & SON
    (May 20, 1931. Opinion and Decree.)
    ■ Hugh T. Layne, of Monroe, attorney for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys, for defendant, appellant.
   McGREGOR, J.

This is a suit for $100 additional wholesaler’s license and $60 “near-beer” license alleged to be due the state of Louisiana. The suit was erroneously brought in the name of the parish of Ouachita, but it was agreed that it should be prosecuted in the name of the state of Louisiana. In the trial the following statement of facts were submitted:

“Now into court comes F. 'Strauss & Son, Inc., and the state of Louisiana, through its attorney, H. S. Lang, and agree that the extra One Hundred ($100.00) Dollars wholesale dealers’ license assessed for 1930 is occasioned on account of, at various times during the year 1930 Swift & Company and other merchants of Monroe would join with Strauss in purchasing carloads of eggs or potatoes or other merchandise; that the entire amount would be carried on the books of F. Strauss & Son, Inc., but that upon receipt of said merchandise Swift So Company, and other merchants would accept delivery of their one-half of said products and pay their proportionate one-half of sariie; that this transaction was handled as a matter of convenience and necessity, due to the fact that neither Swift So Company nor Strauss & Son, Inc., would need an entire car of eggs at one time and the seller of the eggs would not sell in less than carload lots; that F. Strauss & Son, Inc., are now charged with the entire amount of each car in question and that this extra charge makes the difference in the amount of license paid, namely, $300.00, and the amount of license assessed, namely, $400.00.
“With reference to the amount of license assessed for 1930, namely, $60.00, it is admitted that same is assessed .under Section 22 of Act 205 of 1924 and that the attempted assessment is levied at the sale of near beer by F. Strauss So Son, Inc.
“It is further admitted that if a license is due, for the sale of near beer, that the amount of the assessment is correct.”

The $1 claimed in the suit as additional wholesaler’s license is explained in the above statement. The additional $60 claimed was a “near beer” license based on the sale of a drink known as “Pabst’s Blue Ribbon.” On trial it was shown that this drink has no alcoholic content, and that therefore no “near beer” license should be levied on account of its sale.

The lower court rejected the demand for the $60 for the “near beer” license, but gave judgment for the additional wholesaler’s license. The defendant has appealed, while the plaintiff has- not appealed or answered the defendant’s appeal.

Under the agreed statement of facts on which the case was tried, it appears that defendant received no benefit whatever from the alleged receipts on which the ad-’ ditional $100 license is claimed. As a matter of convenience, defendant permitted others to ship goods with it in the same car in order to make carload lots. While the entire shipments were billed to defendant, as a matter of fact the real purchasers received the goods belonging to them and paid their pro rata share without any profit to the defendant. These other wholesalers handled and sold the goods in question, and on the basis of their receipts for these additional goods paid the required wholesaler’s license. If defendant is required to pay this license, the state would be collecting license twice on the sale of the same' goods, while the defendant received no profit. The judgment is wrong, and must be reversed.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled and reversed, and that the plaintiff’s demand be rejected, with costs in both courts.


text:
    No. 3930
    Second Circuit
    HOLLOWAY v. A. J. INGERSOLL CO., INC.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    (May 25, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Wilson & Abramson, of Shreveport, attorneys, for plaintiff, appellee..
    . Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff alleges that on or about the 28th day of September, 1929, he owned and possessed four bales, of cotton, giving the numbers and weights of said bales, and that, on or about the above date, he was induced by one W. P. Cobb, a merchant in Shreveport, to store the four bales of cotton with him, and that he delivered the cotton to a place which -the said Cobb designated as his warehouse, but which plaintiff has since found to be untrue. That the said Cobb fraudulently represented to plaintiff that the place where the cotton • was delivered was his warehouse, whereas, as a matter of fact, it was not. That shortly thereafter, the said Cobb sold petitioner’s cotton to A. J. Ingersoll Company, Incorporated, who bought and accepted same and who exercised dominion and control over the said cotton. That Cobb had no authority or right whatsoever to transfer or sell the cotton to defendant or to any one else, and that the sale by Cobb of property belonging to plaintiff was therefore null and void. He alleges that he had made demand for the restoration of the cotton or the value thereof from the said defendant, A. J. Ingersoll Company, Incorporated, and they have specially refused and failed to comply with his demands. That lie is therefore entitled to have the said defendant restore the cotton to him or to pay him the value of same at the time it was purchased, alleging said value to be $473, with 5 per cent interest thereon. He prays that the defendant be ordered to restore to him the four bales of cotton, and, in the alternative, should they be unable to return the said cotton, that there be judgment in his favor against defendant in the sum of $473, with 5 per cent interest thereon from September 28, 1929, and for costs.

Defendant, filed an exception of no cause or right of action, which was overruled by the lower court, and same is not pressed in this court. Defendant answered, denying in main the allegations of plaintiff’s petition, and alleged that A. J. Ingersoll, president of the defendant company and its predecessor in business, have engaged publicly in the business of buying cotton in the city of Shreveport for more than twenty-five years; that during-1929, W. P. Cobb kept a general merchandise store at 204 Texas street, in the city of Shreveport, where he publicly bought, sold, and exchanged merchandise, farm supplies, and farm produce; that beginning on or about September 23, 1928, and continuing from day to day, the said W. P. Cobb sold to defendant, and defendant bought from him in tne open market, in good faith, relying on his ownership and right to sell at current market prices, seventy-four bales of cotton, more or less, including the four bales claimed by plaintiff, giving the weights of the said four bales and the price at 17% cents per pound, all of which at the time of purchase was delivered, weighed, and received into defendant’s warehouse, at 704 Commerce street, and promptly paid for.

It is further alleged that all of said cotton was bought for resale, and in due course, before the filing of this suit and before any demand or notice of any interest claimed therein by plaintiff, defendant sold, shipped, delivered, and disposed of the four bales, bearing numbers as recited in plaintiff’s petition, for $371.22, and that, if plaintiff owned said cotton or any part of it, he had authorized the said Cobb to sell the same, or had voluntarily placed it in his. possession and control, with knowledge of the nature and character of his business and his intention to sell same in the open market, and that it is informed and believes that plaintiff assisted in the sale and delivery of the said cotton at defendant’s warehouse, with knowledge that it was being bought ' and paid for, and by his own acts and conduct he is. estopped to deny the sale or claim the proceeds or the value of the "cotton.

On the above issues the case was tried in the lower court, resulting in judgment for plaintiff in the sum of $376.25, with 5 per cent' interest thereon from September 28, 1930. Prom this judgment, the defendant 'has appealed, and plaintiff has not answered the appeal.

The evidence in the case clearly establishes ’ that the plaintiff was the owner of the four bales of cotton, and that he ginned game and stored it at Mr. Van Hoose’s gin in or near Shreveport. He became acquainted with the merchant by the name of “Cobb,” who was selling groceries in Shreveport at a low price. Cobb told plaintiff that a Mr. Bowman was coming to Shreveport* from New York on Thursday, and would buy cotton and pay 20 cents a pound for a fair grade. The market value of cotton at the time was 17% cents. Through this ruse, Cobb induced the plaintiff to bring his cotton to Shreveport and to store it with him until Mr. Bowman arrived. Plaintiff removed the cotton from Mr. Van Hoose’s gin and brought it to Shreveport to Cobb’s place of business. Cobb went with plaintiff to a warehouse which he told plaintiff was his warehouse, when, as a matter of fact, the warehouse did not belong to Cobb, but was owned and used by the defendant company as a warehouse for cotton and a place where it purchased and weighed its cotton. Plaintiff had never sold any cotton at this warehouse and did not know it was. the warehouse of any one other than Mr. Cobb. Cobb and plaintiff drove the wagon with the cotton on it up to defendant’s warehouse, and .defendant’s agent took the cotton off the wagon, weighed it, graded it, and gave Cobb a receipt for it. Plaintiff, an ordinary negro, trusting fully in Cobb, believed he was delivering his cotton to Cobb’s warehouse and paid little or no attention to the weighing and grading of the cotton or the receipt whicii was given to Cobb for the cotton. He left the cotton with Cobb, believing that he was storing it with him until Mr. Bowman could arrive from New York.

After unloading the cotton, plaintiff returned to Cobb’s store where Cobb gave to him the following receipt:

“This is to certify that Abe Holloway has stored in my warehouse four bales of cotton, numbers 3501—420; 1376—620; 842—528; 1247—552.
“[Signed] W. P. Cobb.”

On the next day plaintiff came back to Cobb’s .stpre to meat Mr. Bowman, fully expecting to sell his cotton to him for 20 cents a pound, at which time he learned that Cobb had' left the country, and that his cotton had been sold by Cobb to the defendant herein. Plaintiff at no time authorized or empowered Cobb to sell the cotton. The very fact that plaintiff accepted from Cobb the above-quoted receipt shows clearly .that he did not know that his cotton was being sold at the time it •was sold.

Plaintiff relies on article 2452 of the Civil Code:

“The sale of a thing belonging to another person is null; it may give rise to damages when the buyer knew not that the thing belonged to another person.”

In Campbell v. Nichols, 11 Rob. 16, the court, in construing this article, said:

“The evidence satisfactorily establishes the plaintiff’s ownership of the carriage. In May, 1840, an agent of his in Mississippi, consigned it to Hart, Butler & Co., commission merchants, at New Orleans, ito be shipped to Texas, at such time as the plaintiff should direct. Hart, Butler & Co., contrary to their instructions, put the carriage into the hands of Dubois and Kendig for sale. The latter sold it to the defendant for- $150, but did noi represent themselves as the agents of Hart, Butler & Co. It is clear the defendant acquired no right to the property in dispute, his. vendors having none themselves, nor any authority to convey any. Hart, Butler & Co. were entrusted with the carriage only for the purpose of keeping and forwarding it to Texas, whenever they should be ordered so to do. They were vested merely with the possession of the thing; no right of property in it ever passed to them; the sale, therefore, they made of the plaintiff’s carriage, was null. Civil Code, art.' 2427 (now 2452); and (Russell v. Faviel) 18 La. 518 (36 Am. Dec. 662).” Perryman v. Demaret, 11 La. 347.

In the case of Stern Brothers v. Germania National Bank, 34 La. Ann. 1119, the plaintiff intrusted to the firm of A. Eimar Bader & Co., for collection merely, certain detached coupons of the state of Louisiana, said bonds being unconditional-obligations of the state to pay to bearer certain sums of money at dates specified thereon. After their maturity 'A. Eimer Bader & Co. pledged them to defendant to secure a loan of $5,000 made to said firm. Plaintiff sued to recover said coupons, and •the court said:

“There is no controversy as to essential facts, viz.: that plaintiffs owned the coupons; that Bader & Co. had no authority from1 plaintiffs to. sell or pledge them, and no other authority except .to collect; that they were pledged by Bader & Co. for their personal debt, in which plaintiffs had no concern; and that said pledge was made long after the maturity of the coupons.
“The authorities are quite unanimous and entirely convincing, .that the purchaser or pledgee of negotiable instruments after maturity, whose rights are derived from one who is not the owner, and who is not authorized to sell or pledge, acquires no title or right thereto or thereupon, as against the true owner. C. C. 2452; Bird v. Cockrem, 28 La. Ann. 70; Henderson v. Case, 31 La. Ann. 215; Davis v. Bradley, 26 La. Ann. 555; Foley v. Smith, 6 Wall. 493, 18 L. Ed. 931.”

In this case, the defendant invoked the doctrine that, where one or two innocent persons must suffer, the loss should fall on the one who enabled the third person to commit the fraud, and the court said;

“This objection to the application of the principle now under discussion is not new. It has been made, considered and overruled, both by this Court and the Supreme Court of the United States. Foley v. Smith, supra; Bird v. Cockrem, supra.

Defendant finally urged that, by conferring upon Bader & Co. an apparent title or power of disposition, plaintiffs are estopped from asserting title against an innocent third person dealing with such apparent owner. The court said:

“It is evident that plaintiffs did nothing except put Bader & Co. in possession of the coupons for a legitimate purpose, which purpose could not have been effected without such possession. Like possession and like apparent' ownership necessarily existed in all the cases quoted by us, otherwise, the sale or pledge could not have been made.”

In conclusion, the court makes it plain that past-due negotiable instruments, are treated and considered as all other personal property. The court said:

“It must be' admitted that the principié invoked by us, in its application to transfers, not only of past due negotiable instruments but of all personal property, by the possessors and apparent owners, thereof, undoubtedly exposes innocent dealers to great danger of fraud and wrong; yet there are many equitable considerations which weigh equally in its favor; and the law, as it exists, has been established, after a full and fair consideration of the equities on both sides. Arguments! against its wisdom and propriety should be addressed to .the legislative, not to the judicial discretion.”

The principles involved in this case are sustained in> the cases of Frantz & Co. v. J. S. Winehill & Co., 124 La. 680, 50 So. 650; Russell v. Kunemann, 19 La. Ann. 517; and Moore v. Lambeth, 5 La. Ann. 66.

It has been urged by appellant that the doctrine advanced by appellee, which might be the law of other states of the Union, is not the law of Louisiana; that Louisiana law is founded on the Roman law and the Code Napoleon of France. He does mot, however, point out the distinction and :in what respect our law difiers. In France, ■.under article 2279, C. N., the possession .and- title of movable property go together {“possession vaut titre”). That doctrine has never prevailed in Louisiana. Holton & Winn v. Hubbard & Co., 49 La. Ann. 715, 22 So. 338.

In the case of Freeport & Tampico Fuel Oil Corporation v. Lange, 157 La. 217, 102 So. 313, 316, the Supreme Court of this •state reviewed the jurisprudence of this •state, as well as a number of other states of the Union, and affirmed the doctrine of ,the cases of Campbell v. Nichols, 11 Rob. 16; Moore v. Lambeth, 5 La. Ann. 66; and in effect, overruled the case of Conner v. Hill & Co., 6 La. Ann. 8, which latter «ase ia relied upon by defendant. In that lopinion, the court said:

“It is said, however, that plaintiff should not recover, because, by delivering the brass and scrap iron to Snider in the presence of one of defendant’s employees, this vested Snider with the appearance of ownership. But in our opinion the act— that is, the delivery—should not be given that effect, even viewing the employee as the representative of defendant. To give it that effect would be equivalent to holdT ing that if a person should deliver property to one, in the presence of another, witn no intention of transferring title to the one to whom delivery is made, as. for instance, where possession is delivered for purpose of storage, the person witnessing .the delivery, if ignorant of its purpose, would be protected in purchasing from the , ne receiving delivery. This, as we have seen, is clearly not the law.”

This, statement of the court completely covers the case before us. Defendant’s agent was present and saw plaintiff deliver to Cobb the four bales of cotton for the purpose of having same stored. Defendant was ignorant of the purpose of plaintiff in delivering possession to Cobb. He purchased the cotton from Cobb and asked to be protected in his purchase. Under the jurisprudence of this state and the authorities heretofore cited, he is not protected. It is clear that defendant acquired no right to the four bales of cotton, his vendor having none himself, nor any authority to convey any. Cobb was only intrusted with the cotton for the purpose of storing it. He was vested with mere possession of the cotton; no right of property ever passed to him. The sale, therefore, he made of plaintiff’s cotton was null. Civ. Code, art. 2452; Russell v. Favier, 18 La. 589, 36 Am. Dec. 662.

Defendant relies on the case of Loeb v. Collier, 131 La. 377, 59 So. 816. In that case, the court was dealing with the 'question of privilege on crops, as furnisher of supplies, and not with the ownership of crops. The. case is not applicable here.

Defendant also cites Weld v. Donlin, 13 La. 460. It is not in point. The court in that case only decided one question. Tankersley & Dench sold to plaintiff some cotton and later sold the same cotton .to defendant. The case was dec.ided on the question of delivery, and the court held that the cotton when sold to plaintiff was actually delivered .to him. Therefore, he had purchased from the rightful owner a movable and had taken actual possession of it, and that the sale by plaintiff’s vendor to defendant at a later date of the same property then in possession of plaintiff was a nullity, although defendant acquired actual possession of the property after purchasing it.

Counsel for defendant say in brief:

“Having shown that defendant purchased this cotton in good faith from a merchant, we now cite article 3507, C. C., which holds that even had a stolen article been bought from a dealer or one in the habit of selling such things, the owner of the thing could not obtain restitution of it without returning to the purchaser the price it cost him. Certainly the law does not intend to offer more protection to a negligent, careless individual, who deliberately places his property in the hands of a merchant and permits it to be sold, than it offers to .one whose goods have been stolen from him and then sold by a merchant. If in the latter case, the owner could not recover without returning to the pui chaser in good faith the amount it cost him, certainly in the former case he should not be allowed to do so. And yet that is what the judgment of the lower court in this case would do.”

Counsel are not correct in their interpretation of the articles of the Code. This question arose in the case of Campbell v. Nichols, supra, and the court said:

“But his counsel contends that, under the following article, 3473 (now 3507), he is entitled to claim of the plaintiff the price he paid for the carriage, having bought it from a person in the habit of selling such things. We think otherwise. In the first place, the article relied on speaks of things stolen or lost, which .form an exoeption to the rule laid down in .the preceding article, which gives title to the possessor of a chattel after a possession of three years; but even with regard to things stolen or lost, it results from the two articles. (3472 and 3473), which have a clear reference to each other, that it is only after a possession of three years that the purchaser can demand the price he paid of the rightful owner who claims his property. Such was the construction put by this, court upon those articles in the Code of 1808. Davis v. Hampton, 4 Mart. (N. S.) 288; Code 1808, p. 488, Arts. 75 and 76.”

Defendant finally contends that the plaintiff is- estopped by his actions. We do not think plaintiff’s actions justify the plea, for the reasons heretofore given.

The judgment of the lower court is ■ correct, and it is therefore ordered, adjudged, and decreed that it be affirmed, with costs.


text:
    No. 3570
    Second Circuit
    SULLIVAN v. BOND
    (May 20, 1931. Opinion and Decree.)

      J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    H. W. Ayres, of Jonesboro, attorney for defendant, appellant.
   DREW, J.

This suit arose out of an automobile accident. Plaintiff sued for damages to his car and defendant answered denying liability, and reconvened for damages to his car and for personal injuries received by him in the accident.

The lower court rendered judgment for plaintiff, as prayed for, and rejected defendant’s reconventional demand. Prom this judgment defendant has appealed to’ this court.

Plaintiff, appellee, filed in this court a motion to dismiss the appeal for the reason that appellant has paid in full the judgment of the lower court. The facts alleged in this motion are duly sworn to. Appellant has made no aippearance in this court to argue the case, neither has he filed' a brief. The rule of this court in such cases is to affirm the judgment of the lower court, unless there is error apparent upon the face of the record, or to bonsider the appeal as abandoned. However, on the motion to dismiss filed by appellee and the showing made thereon, the same not having been contested by appellant, we will dismiss the appeal. It is • therefore ordered, adjudged and-decreed that the appeal taken herein is dismissed, at appellant’s cost.


text:
    No. 3140
    Second Circuit (Second Division)
    SOUTHWESTERN GAS & ELECTRIC CO. v. LILES
    (April 9, 1931. Opinion and Decree.)
    (May 7, 1931. Rehearing Refused.)

      Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook and Foster, Hall & Smith, of Shreveport, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff, defendant and others, were joint owners of a certain tract of land in Caddo parish, on which is located an oil well. Plaintiff drilled the well and was operating it, producing oil therefrom in 1919, when defendant and others were decreed to be the owners of a one-fifth interest in the property. From that time on until the year 1925, approximately five years, the well was operated by plaintiff at a profit, defendant receiving her pro rata share of the proceeds, less operating expenses. In 1925 the well was operated at a total loss of $6,992.90, due to a considerable expense incurred in an effort to remove a part of the tubing which got into the liner in April of that year. Defendant was charged with her pro rata share of these expenses. She refused to pay same, and this suit followed.

Defendant filed an exception of no cause of action, contending that the allegation in plaintiff’s petition disclosed a partnership; that the partnership had not been dissolved; and that, under the law regulating. partnerships, neither partner can sue the other individually for a partnership debt so long as the partnership continues to exist; and that the debt sued on is a partnership debt. The court overruled the exception.

Defendant filed an answer of general denial, and the case went to trial upon the merits. There was judgment in favor of plaintiff and defendant appealed.

The petition sets forth a co-ownership by plaintiff and defendant of the property; that by a joint arrangement with defendant, plaintiff had been operating the property for gas and oil whereby the oil run from the property was divided between them, after deducting the expenses, each receiving a share in the net profits proportionate to their respective interests in the property. The evidence seems to bear out these allegations as going to show the manner in which the business was being carried on, and the relationship which existed between the parties, except that it does not show that there was a joint arrangement between them to carry on the business as thus alleged. The only thing defendant ever did was to employ counsel to represent her in recovering her interest in the property, .and when that was accomplished in the lawsuit that was had, she soon thereafter began to receive checks through Mr. W. P. Hall, her attorney, who had represented her in the lawsuit, covering her share of the output of the well, after Mr. Hall deducted what was coming to him on his fee. Mr. Hall testified he received the checks with statements of receipts and disbursements for expenses, and that he would always mail to Mrs. Liles, simply a check for . her part, without any explanation as to the contents of the statements he received. That being true, it can hardly be said that a joint arrangement between plaintiff and defendant was ever entered into. Plaintiff was operating the well when defendant became owner of her interest, and the operations continued uninterrupted as they .had been. Plaintiff began sending out checks to the newly recorded owners under the changed conditions of ownership resulting from the litigation without attempting to have any agreement with the joint owners as to the mode or manner of operating the well or sharing in profits and losses.

There were substantial profits derived from the well each year from 1919 to 1925. It is true, as counsel contends, plaintiff and defendant were joint owners of the property and shared in the profits . and losses. It is true also that a sharing in profits and losses is characteristic of a partnership but it is also true that these are characteristics of a tenancy in common. The relationship which existed between plaintiff and defendant was similar to that where one joint owner of a plantation takes charge, operates it, and at the end of the crop season he deducts for expenses, pays over to his co-owner his share of the profits if there be any, and if the losses exceed the profits, he charges his co-owner with the latter’s ¡pro rata part of them.

The one is a business having to do with obtaining products from the surface of the soil while the other is that of obtaining products from underneath it. There are numerous decisions of the courts in this state holding the former business as coming under the rules of co-tenancy. In fact, the system of co-tenancy has its origin in that class of endeavor, that of joint ownership. Planting operations carried on upon lands owned by two or more jointly are sometimes referred to as planting partnerships. They may be under certain relationships which might exist between the co-partners, but these relationships must be as a partnership and not as co-tenants.

A partnership is a separate entity and is distinct from the persons who compose it. It is in that sense in which counsel for defendant would have the court view plaintiff and defendant in this case. In that case there should be a name under which the parties did business. None existed in this case. There must, under the Code, have been a synallagmatic or commutative contract entered into by and between the parties in order to have made it a partnership as contemplated by the law. Such was not the case here.

Article 2805 of the Civil Code provides:

“Partnerships must be created by the consent of the parties.”

This means that they must have entered into a mutual agreement, and the result of that. agreement be that some concrete entity be created which would be separate and distinct from the parties themselves, such as. to make the thing they created entirely separate and distinct from themselves. No such entity was ever created by plaintiff and ■ defendant .in this case. Under the above quoted article of the Code is cited City of New Orleans v. Gauthreaux, 32 La. Ann. 1126, wherein the court held that:

“As to third .persons, a partnership may be created by construction of law, though not intended nor existing between the parties themselves.”

It is on the principle that if parties hold themselves out to the public as partners, third persons have the right to -regard them and deal with them as such, but even in such cases, the parties remain as separate entities as to their dealings between themselves.

The case of Collom v. Bruning, 49 La. Ann. 1257, 22 So. 744, cited under the above articles of the Code, held:

“The mere fact that two persons may both be interested pecuniarily in the same business venture, and that each gives to it his time and attention does not carry with it as a matter of law, the conclusion, that they stand towards each other as partners.”

Also in the case of Chaffraix & Agan v. Lafitte & Company, 30 La. Ann. 631, cited under this same article 2805 of the Civil Code, the court held:

“When the parties do not intend to create a partnership and do not hold themselves out as partners, the mere fact that they divide the profits of a business does not make them partners.”

In the case of Smith v. Wilson, 10 La. Ann. 255, plaintiff and defendant were joint owners of a plantation; plaintiff took charge upon his acquiring his undivided interest, while defendant was an absentee and his whereabouts were unknown to plaintiff. Plaintiff incurred upon his own initiative, a very large expense in clearing up the land, building cabins, and securing a large number of hands to work the place. Having failed to make enough to pay expenses by the end of the year, he charged defendant with a part of the loss proportionate to defendant’s interest in the plantation; and in an effort to, collect same, attached the latter’s interest in the property. The court rejected plaintiff’s demands as being unreasonable, but in discussing the case, laid down certain principles of law applicable to the facts of-the case. The court said:

“If the expenditures made be such as it was lawful for one proprietor to make in the absence and without the knowledge of the other, then the liability of the latter is for an equal share of the expense, accompanied with an equal participation in the resulting .benefit. The .duty of the coiproprietor who is present and in actual possession is to take the same care of the property as 'if it was wholly his own. Smith and Wilson were owners in common of this land. From this relation, and in the absence of any express agreement, the law implied certain mutual rights and duties. Of these the most prominent are the right of partition when either desires it; the right of mutual participation of the, fruits and revenues, and the consequent duty to account to each other therefor; the duty of thq co-proprietor who is present and in actual possession to take the same care of the property as if it were wholly his own; the right of incurring expenses necessary for the preservation of the common property, and consequent obligations of reimbursing one another for such outlays. It is not, indeed, a partnership, as erroneously characterized by the District Judge, but it is controlled in some respects by analogous rules.”

We think the case at bar is one which-should be governed by -the same rules laid down in the above cited case. It is not-one of partnership, but is a case in which the plaintiff in actual possession of the whole and operating it for the joint benefits of its co-owners, was duty bound to take the same care of it as if it was wholly his own. And in doing this, there existed in plaintiff the right to incur such expenses as were necessary for- the preservation of the common property; and there also existed the consequent obligation on the part of defendant of reimbursing plaintiff for- her share of such expenses. It will be seen that the court in the Smith v. Wilson case, cited above, held specifically that no partnership existed between the parties, although it was a case governed by rules analogous. All of the rights and duties therein enumerated are such as are found in the law governing co-tenancy.

We think the testimony in this case clearly shows that the expense incurred in an effort to save the well were; in the honest opinion of plaintiff and its agents, wise and judicially made, in an honest effort to preserve the property. The well was at the time its flow became impeded, producing twenty barrels of oil daily. The amount spent to save it, compared to the value of that amount of oil daily, and the hope of thereby saving the well, should not be considered unreasonable nor excessive. Neither should the continued efforts throughout, a period of five months, necessitating a continued and increasing expense, be deemed as unwise, considering the fact that on some wells, according to the testimony, quite a long period of time is required to remove obstacles from them. It seems to be the experience among oil men that sometimes foreign objects can be removed from wells in a few days, and at other times it takes weeks, and even months. It is one of those conditions which arise where the operators have to use their best judgment. It cannot be said in this instance that plaintiff failed to use good judgment under the circumstances, nor that the well was handled otherwise than as if it belonged wholly to it.

Plaintiff owned a considerably greater interest in the well than defendant, hence its part of the expenses was greater, and it is not reasonable to suppose plaintiff would create a heavy expense upon itself unless it had good reason to believe the well could be saved. Had it been saved, it would soon have more than repaid all the expenses incurred.

The custom of plaintiff had been to make disbursements to' defendant periodically of the proceeds. No part of the profits had ever been retained and placed to any reserve account. In fact, there was no sort of what might be termed a partnership capital nor a reserve account to which profits were placed, nor against which a loss could be charged. Therefore, we see no reason why at this particular time defendant should not have been called upon to pay her share of the losses sustained during 1925.

"We have examined the cases cited by counsel for defendant on the point that one partner, before he can sue his co-partner for some specific sum growing out of a partnership transaction, must sue for liquidation of the partnership affairs. In all of these cases it appears plain that a partnership in fact existed; that it had been previously created by the parties under express contract, either in writing or verbal. Most of the cases involved commercial firms engaged in mercantile pursuits. The principle enunciated by counsel is perfectly good and applies to partnerships. But in the opinion of the court, the case now before the court does not involve that class of cases, but falls within the class of tenants in common. Under this latter class of cases, defendant is liable.

The amount sued for has been proven to be correct. In fact, the amount does not seem to have been seriously disputed. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: STEPHENS, J.

text:
    No. 3368
    Second Circuit (Second Division)
    WESSELL PLUMBING CO., INC., v. SCRIBER & CURTIS
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)

      C. B. Prothro, of Shreveport, attorney for plaintiff, appellant.
    L. K. Watkins and R. D. Watkins, of Minden, attorneys for defendant, appellee.
   STEPHENS, J.

On April 11, 1923, the plaintiff, Wessell Plumbing Company, Inc., agreed to sell and deliver to the defendant, Scriber & Curtis, certain refrigerating equipment. The defendant agreed to pay the plaintiff therefor the sum of $1,551.28, of which $232.72 was to be paid upon delivery of the refrigerating equipment at Sibley, Louisiana, and the balance in monthly installments of $97 each. The plaintiff shipped the equipment and drew a draft on the defendant for the sum of $232.72, in favor of the First National Bank of Shreveport, Louisiana, and attached tlje draft to a shipper’s order notify bill 4>f_ lading. The draft, with bill of lading attached, was forwarded by the First National Bank of Shreveport to the Sibley State Bank for collection. The defendant, on May 8th, having learned that the refrigerating equipment had arrived at Sibley, gave the cashier of the Sibley State Bank a check on its account, with said bank, for the amount of the draft, and received the draft and, .bill of .lading from the cashier. On presentation of the bill of lading to the railroad company the refrigeration plant was delivered to the defendant, and shortly thereafter was installed by the plaintiff in the defendant’s place of business. On May 15th, one' week after defendant had given his check to the bank and received the draft, the bank’s doors were closed. Sometime thereafter the liquidator of the bank, one Mr. Perritt, discovered the check in question in a pigeonhole in the bank. It was no.t marked “Paid,” but someone, presumably the cashier of the bank; who had received it, had placed a notation on it “Not used.” An examination of the books of the bank at that time disclosed that the amount of the check had never been charged to the defendant’s account, and that the defendant had a balance credited to his account of more than enough to. pay it at the time' the check was given. The amount of money for which the check was given was never transferred to the First National Bank for payment to the plaintiff. The liquidator of the bank returned the check to the defendant, and sometime thereafter sent him a dividend of 15 per cent, which was calculated on the amount of his deposits at the time the bank was closed.

All payments due under the agreement except the amount of the draft were subsequently received by the plaintiff.

; This suit is to recover the amount of the draft. The defendant answered and pleaded payment.

Judgment was rendered by the trial court rejecting plaintiff’s demands, and the plain- ; tiff appeals.

The question in the case is whether the transaction between the defendant and the : Sibley State Bank was a payment of the ■ draft.

The bank, no doubt, was the agent of the plaintiff for the purpose of collecting the draft, but an agent merely authorized to receive payment of a debt cannot bind ,his principal by any arrangement short of ' an actual collection and receipt of the money. It is well established that the power of a collecting agent is limited to receiving for the debt of his principal, that which the law declares to. be legal tender, or which is by common consent considered and treated as money. The only condition imposed on the principal, if the agent, acting beyond the scope of his general authority, receives something else in payment, is, that he repudiate the unauthorized transaction within a reasonable time after it is brought to his knowledge.

“It is a general rule that a bank which is acting as the collecting agent of the owner of a claim has no authority, unless specially conferred, to accept in payment anything but cash.” 3 R. C. L. p. 616, sec. 245.
“It is a rule prevailing in all but a few jurisdictions, that a check given by a debt- or to his creditor for the amount of the indebtedness does not amount to a payment, in the absence of an agreement, express or implied, that it shall amount to payment.” 21 R. C. L. 60, sec. 59.

Both of these rules militate against the receipt of a check operating as payment generally.

The latter rule was applied by the Iowa Supreme Court in Bellevue Bank v. Security National Bank, 168 Iowa 707, 150 N. W. 1076, in which case the check tendered in payment of the draft, as in the instant case, was drawn on the bank holding the draft for collection. It was held that the acceptance by a bank holding a claim for collection of a check drawn .upon itself by the debtor, operates as conditional payment only, and, upon the dishonor of the check the condition was held to fail, and the holder of the note entitled to maintain his original cause of action.

• The counsel for the defendant contends that the bank was guilty of negligence in not remitting' the money called for by the ( check, and that its laches in this respect is imputable to plaintiff. The assumption, in this contention, that the bank had any money to remit is not supported by the record. It is true that it was shown that the defendant had a paper balance to its credit at the time the check was given, but that fact does not even raise the presumption that the bank was solvent or that it had the money to pay the check. On the contrary it is indicated by the manner in which the check was handled, ,and the closing of the bank’s doors within a week, and the inability of the bank to (pay its depositors, that it was not only insolvent when the check was given, but did hot have sufficient funds to pay it. There is nothing in the record that suggests that the bank became insolvent within the week that it was closed.

Clearly, the bank could not, by exceeding its authority as agent for the purpose of collecting the draft,' enter into an arrangement by which it assumed the debt. That is precisely, in our opinion, what the bank attempted to do. The only reasonable explanation of' the conduct of the cashier is, that-, he, with full knowledge of the bank’s insolvent condition,, accepted plaintiff’s check, not with the intention of converting it into cash, and forwarding the cash to plaintiff, but for the purpose of hiding, temporarily, its insolvent condition by substituting the bank as debtor for its depositor.

The Michigan Supreme Court, in State Bank of Midland v. Byrne, 97 Mich. 178, 56 N. W. 355, 356, 21 L. R. A. page 753, 37 Am. St. Rep. 332, disposed of a case presenting the question under consideration here, as follows:

“The fact- that a debtor has a credit at ■a bank is not conclusive evidence that the bank has money with which to honor his checks. As in this case, the hank may be insolvent when it receives the check, and there is no good reason apparent for permitting the depositor of an insolvent bank to pay his debt with worthless paper, thereby making his creditor a loser.”

However, even if it be assumed that the bank was solvent and the money available to pay the check at the time it was given to the cashier, we are of the opinion that the draft was not (paid. There is no suggestion in the books of the bank nor the record of the case that the bank had collected the money (the only thing it was authorized to collect) and held possession of 'it for the account of the plaintiff. The check was not marked “Paid” and was pigeonholed, and no record made of the transaction, either as a charge against the defendant’s account or as a credit to plaintiff. The payment, if it can be so designated, was a conditional one. Tbe condition failed in that tbe check was never converted into cash or its equivalent.

As the bank never collected the money, it could not be negligent in not remitting it. The bank’s negligence consisted in accepting something in payment of the draft other than money; and as such negligent act was unauthorized by plaintiff it is not imputable to him.

The Iowa Supreme Court held that, even though there were sufficient funds to pay a check, and the check was received by the bank and marked “Paid,” if due to the bank's insolvency the check was never paid, tbe draft it held for collection, for which the check was given, was not paid.

“The tender to a bank to which a draft with bill of lading attached has been sent for collection, pf a check on itself, does not amount to payment, although the maker of the cheek had sufficient funds on deposit' to meet the check, and the check is marked ‘Paid,’ if the draft requires payment in cash or its equivalent, and the bank is insolvent,' so that the check is never paid.” Sanitary Can Co. v. National Pickle & Canning Co., 191 Iowa 1259, 184 N. W. 354, 18 A. L. R. 532.

The only distinction between the cited case and tbe instant case, other than noted above, is that in tbe former there was specific instruction to tbe collecting bank written on tbe face of tbe draft as follows: “This draft must be paid in cash or its equivalent, tbe bank named as payee acting only as agent to collect.”

In tbe instant case tbe bank was acting under tbe general authority of collecting agents, which as shown, supra, would permit only the collection of money or its equivalent in payment of the draft.

The defendant received the goods of the plaintiff and has not paid that portion of the purchase price represented by the draft. We feel that he is liable on his original obligation.

The amount of defendant’s loss, incident to the bank’s insolvency, no doubt had been sustained at the time the check was given, though he had no knowledge of it.

The decision of the trial judge is supported by a number of well considered cases, but we are of the opinion that the great weight of authority supports the view herein expressed.

For which reasons the judgment appealed from is annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff and against the defendant Scriber & Curtis, and the individual members of the partnership, T. S. Scriber and W. T. I Curtis, in solido, in the sum of $232.72, with legal interest thereon from May 8, 1923, until paid, and all costs.


author: HIGGINS, J.

text:
    No. 13,545
    Orleans
    FRANCIS v. BARBAZON
    (May 11, 1931. Opinion and Decree.)
    Raymond Gauche and A. A. Calongne, of New Orleans, attorneys for plaintiff, appellee.
    Hugh M. Wilkinson, A. Miles Coe, Fred W. Oser, Harry Nowalsky, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

The plaintiff brings this action claiming $140 property damage alleged to have resulted from the defendant’s employee deliberately causing a collision between the two automobile wrecking trucks of the plaintiff and defendant on Downman road, this city, on June 17, 1928, about 4 o’clock p. m.

The defenses are: First, that the man operating the defendant’s truck was an independent contractor; and, second, that the driver of the defendant’s truck, in deliberately and willfully running into the plaintiff’s truck, was. acting outside of the course and scope of his employment.

There was judgment in favor of the plaintiff by default, and defendant filed a motion for a new trial and an exception of no right or cause of action. The exception and motion for new trial were overruled in the lower court, and on appeal to this court the case was remanded for a new trial and the exception of no cause of action overruled. See Francis v. Barbazon, 10 La. App. 55, 120 So. 427. On the second trial there was judgment in favor of the plaintiff, and defendant has appealed.

The evidence ■ shows that the plaintiff and the defendant were engaged in the garage business and operated .wrecking trucks, for the purpose of salvaging and returning to their garages for repairs wrecked automobiles. On tbe day in question plaintiff received a telephone message -that an automobile had overturned and was requested to send his service truck. He and two of his employees started out to the scene, and, as they neared the place where the defendant’s truck was parked, the driver of it backed out into the road and started in the same direction as plaintiff. As the plaintiff approached the defendant’s truck from the rear, he sounded his horn, and the driver of defendant's truck pulled over to his right and then deliberately crossed back to -the left side of the road, causing a portion of his truck to strike the right front side of the plaintiff’s truck, resulting in the latter truck being overturned in the ditch beside the road. The driver of the defendant’s truck continued on his way and, incidentally, his testimony was not taken.

The first defense, that the defendant’s driver was an independent contractor, is clearly without merit, because that issue was not raised in defendant’s answer, and evidence tending to support it, having been timely and properly objected to, it was rejected on the trial of the merits. In fact, the defendant admits in his answer that the driver of the truck was his employee and was acting “within the scope of his employment.” May v. Yellow Cab Co., 164 La. 920, 114 So. 836.

Passing to the second defense, that the driver of the defendant’s truck acted willfully and deliberately and, therefore, out of the scope of his employment, the evidence indicates that, while the plaintiff and his two witnesses felt that the driver of the defendant’s truck acted willfully and deliberately in causing .the collision, this was merely a conclusion they reached because of the fact that there was no occasion for defendant’s employee to have driven the truck to the left side of the road, after having pulled clear to the right. But, assuming that it was a willful and deliberate act, it appears that there had not been any previous personal difficulty or encounter between the plaintiff and -the defendant’s employee. There was no personal malice or hatred existing between them. Apparently the driver of the defendant’s truck was determined to reach the wrecked automobile before the plaintiff, because when he heard the • plaintiff sound his horn, he turned and looked, and seeing that it was the plaintiff’s wrecking truck, he then deliberately pulled over, as we have described, in order to prevent it from passing, or with a view of causing it to run into the ditch, so that it could not continue on its mission. What appeared to be uppermost in the defendant’s employee’s mind was that plaintiff was a business rival and that if he could get to the scene of the wrecked car first, he could thereby obtain the business. We have come to the conclusion that defendant’s driver acted within - the scope of his employment. See Bearman v. Southern Bell Telephone & Telegraph Co., 17 La. App. 89, 134 So. 787, decided this day (May 11, 1931), and the many cases therein cited.

The evidence shows that the damages sued for were the result of the accident and were properly proved and allowed.

■ Por - the reasons assigned the judgment is affirmed.


author: JANVIER, J.

text:
    No. 13,613
    Orleans
    MONTZ v. MANOS
    (May 11, 1931. Opinion and Deeree.)
    (May 25, 1931. Rehearing Refused.)
    (June 22, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      (No Syllabus)

    R. R. Ramos, of New Orleans, attorney for plaintiff, appellee.
    W. A. Porteous, Jr., of New. Orleans, attorney for defendant, appellant.
   JANVIER, J.

This case grows out of the same automobile accident which we have considered in the matter of Mr. & Mrs. Christos v. B. C. Manos, 16 La. App. 512, 134 So. 713, decided by us this day. The claim here is for the damage caused to the truck and for the loss resulting from being deprived of its use.

B. C. Manos, named as defendant in the other suit, is the same person as Wm. Ma-nos, defendant in this suit.

In Christos v. Manos, we came to the conclusion that the defendant, the driver of the automobile, was. at fault, and was liable for the resulting damage. For the reasons given in that case we are of the opinion that the judgment appealed from here, which was in favor of plaintiff, was correct.

Plaintiff prayed for judgment for $216.39 representing actual cost of repairs in the sum of $144.89; loss resulting from being deprived of the use of his truck for twelve days, $60; cost of towing the damaged truck to New Orleans for repairs, $11.50. It is. contended that a certain portion of the delay resulted from plaintiff’s failure to immediately take the necessary steps to have the repairs made.

The trial court seems to have come to .the conclusion that this was true, and it therefore apparently rendered judgment on this item for only $30; the total amount of the judgment ' being $186.39. We are not prepared to say that there was error in this.

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


text:
    No. 13,762
    Orleans
    CHRISTOS v. MANOS
    (May 11, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Michel Provosty and Oliver P. Carriere, of New Orleans, attorneys for plaintiffs, appellants.
    Milner & Porteous, Wm. A. Porteous, Jr., of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Mrs. Christos, one of the plaintiffs, was a guest passenger in the automobile owned and driven by defendant. She received injuries when that automobile ran into a truck which was proceeding along the road in the opposite direction.

It is conceded by all parties that .the truck was not at fault, since it was proceeding slowly-—probably at a speed of about ten miles per hour—an’d was on the proper side of the road.

It is charged that defendant is liable because of the speed at which his car was being driven, and primarily because, when it became apparent that something was wrong with the car, Be did not at once, according to the allegations of plaintiffs’ petition, do everything within his power .to bring it to a stop.

The trial court rendered judgment in favor of defendant, dismissing plaintiffs’ suit.

In the matter of speed we are convinced • that defendant was not at fault. The spot at -which the accident occurred- was in the open country, the road was comparatively straight, and there was no reason why the car should not have been driven at any speed permitted by law. The state statute permitted a speed of forty-five miles per hour, and no effort is made to prove that limit was exceeded. On the contrary, defendant fixed the speed at about forty miles per hour, and no witness attempts to contradict him on this point.

The attention of those in the ear was first directed to the fact that something was wrong by the sudden swerving from side to side.

It is claimed by plaintiffs that one of the rear tires of defendant’s car became slowly deflated, and that this, caused the swerving, and it is argued that defendant, immediately upon becoming aware of this condition, should have brought his car to a stop.

It is maintained, however, by defendant’s counsel that the deflation did not occur slowly, but was the result of a sudden “blow-out” of a tire, and that when this occurred the immediate result was the swerving, and that the crash occurred before there was time or opportunity to. avert it. In a statement made shortly after the accident and in his testimony on the witness stand, defendant said that he had noticed the swerving from one-half to one block before the spot at which the collision occurred, and, if his estimate of the distance is correct, it would seem that within that distance he should have been able to stop. But in both instances his statement was followed immediately by an explanation that he had at once applied .the brakes and had brought the car to a stop as soon as it was humanly possible to do so. Counsel for defendant contends that the estimate of the distance was merely a guess and that it should yield to the fact .that the brakes were immediately applied and yet the car could not-be stopped.

That the brakes were in good condition is not denied, and is evidenced by the condition of the deflated tire which we have examined and from which it is apparent .that the brakes were unusually effective, because in two places in the sidewall of the tire, opposite to each other, appear holes plainly caused by the dragging of the tire against an abrasive surface such as gravel.

It is also conceded that .the tire which seems to have been primarily responsible for the accident was of good make and apparently was in good condition. It had run only 1,500 miles, and there was. no reason to suppose that there was anything defective about it.

It is .true that one who invites, a friend to ride with him is not an insurer of the safety of the friend. He owes to the friend the duty of making reasonably certain that there is nothing defective in his automobile, and he also undertakes .to drive with reasonable safety under all circumstances, but, if he complies, with these duties, and injury nevertheless results, he is not liable. Sears v. Interurban Transportation Co., 14 La. App. 343, 125 So. 748; Hudson v. Jackson Brewing Co., 4 La. App. 549; Timberlake v. Cassidy, 1 La. App. 630; Banta v. Moresi, 9 La. App. 636, 119 So. 900. See, also, Dickerson v. Connecticut Co., 98 Conn. 87, 118 A. 518; Albers v. Shell, 104 Cal. App. 733, 286 P. 752; Cleary v. Eckart, 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576; Sommerfield v. Flury, 198 Wis. 163, 223 N. W. 408; O’Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008.

In Huddy on Automobiles (7th Ed.) sec. 803, we find:

“In some cases the rule seems to have been adopted that the driver of a motor vehicle is not liable for injuries received by his guest, when such injuries are the result of a defect in the vehicle not known to the driver. This view is sustained by the reasoning that the relation- between the parties is that of licensor and licensee; and, following the principle of defective buildings and premises, it is said that a licensee takes the vehicle as he finds it. Under such a rule, the driver is liable only for active negligence, which increases the hazard or creates a new one.”

Still, as driver of the car, it was defendant’s duty to operate it as a reasonably prudent person would have done, and we are of the opinion that a reasonably prudent person would have attempted to stop the car immediately upon becoming aware of the fact that it was swerving dangerously, and we do not believe that defendant did this. As we have already stated, his own testimony and his own written statement might have resulted merely from an inaccurate estimate of distance, but we cannot lose sight of the fact that the driver of the truck states that, when he noticed the car swerving, it was some three hundred or four hundred feet away from the truck. His estimate then as to the distance at which the automobile was from his truck when it first started careening and swerving is very near to that given by defendant himself in his statement, and the evidence of these two witnesses together convinces us that the swerving had continued for a sufficient time to have permitted of, the stopping of the car had defendant attempted to stop it. as soon as he became aware of the impending danger. His failure to do so renders him liable.

Let us now consider the question of the amount of the awards to which plaintiffs are respectively entitled. Mr. Christos, as head and master of the community, asks for $198.80, which he states is the amount of doctors’ bills, nurses’ bills, hospital expenses, and the value of clothing ruined. He seems to have proven without dispute items totaling $198.80, and judgment for this amount should be rendered in his favor.

The injuries to Mrs. Christos consisted, according to her doctor, of a small cut over one eye, a cut under the chin, injury to one ear, and considerable nervous shock. Apparently she also sustained a small linear fracture of the right frontal bone from which, however, no depression resulted. She asks for $5,000. The scars, according to the testimony of the doctor produced by the defendant and according to the photographs, are scarcely noticeable, and the nervousness which she claims to have resulted does not seem to be more than such as usually accompanies injuries of that character. We find it very difficult to determine just what will properly compensate Mrs. Christos for her injuries, and have concluded to award her the sum of $1,250.

It is therefore, ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff Stratos Christos and against defendant in the sum of $198.80, with legal interest from judicial demand and for all costs.

It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff Mrs. Stratos Christos and against defendant in the s.um of $1,250 with legal interest from judicial demand, and for all costs.