text:
    No. 9466
    Orleans
    DAVIDSON v. McGRATH
    (Nov. 2, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Buildings — Par. 13.
    A substantial performance of a building contract is all that the law requires.
    2. Louisiana Digest — Builders and Buildings — Par. 17, 20, 29.
    The contractor may recover the value of the work which has inured to the benefit of the owner although the work be defective or unfinished; if a price has been agreed on, the remedy of the owner is a reduction thereof by an amount necessary to perfect or to complete the work according to contract.
    Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by John Davidson against Lillian A. McGrath.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wm. C. McLeod, of New Orleans, attorney for plaintiff, appellee.
    Henry G. M’Call, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit- upon a building contract.

The plaintiff alleged that he made a contract with the defendant to do certain work upon the roof and other, portions of defendant’s property 1136 Second Street; that he did the work and tendered it to the defendant; that she employed an architect to inspect the work; that the architect reported that some slates upon the roof were cracked and that some flashing was necessary; that plaintiff sent a force of men to do the above work when the defendant refused to allow them to do the work claiming that there were other defects and that the whole roof .would have to be taken off; that according to the contract plaintiff is entitled upon the coihpletion of the work to a payment of $1250 and 60 days thereafter to the balance of $500, and that the 60 days have elapsed. Plaintiff prayed for judgment of $1750.

The defendant admitted the contract sued on but denied all other allegations; she alleged that plaintiff had not completed said work according to the contract, nor had the said work been done in a first-class and workmanlike manner; that as a result of said defective work, there were numerous leaks in the roof, which had caused damage to the plastered ceiling in said building, some of which are badly water stained and cracked.

With elaborate written reasons, judgment was rendered in favor of plaintiff as prayed for. Defendant has appealed.

The trial judge found that the plaintiff had substantially complied with his contract, and that was all the law required. Pratt vs. McCoy, 128 La. 572-619, 54 South. 1012. See also Dugue vs. Levy, 114 La. 21, 37 South. 995; Hebert vs. Weil, 115 La. 425, 39 South. 389. Tessier dig., 36, No. 8285-9164 Orl. App.; 8 Elliot on Contracts; S. 1606-3693-9 C. J. 739-744, Sec: 79. Peterson vs. Peralta, 3 La. App. 516.

He also found, and the defendant admitted it, that since the delivery of the work by the plaintiff defendant had made no repairs to the roof.

But the defendant has mistaken Ker remedy.

In the case of Carry vs. Randolph, 6 A. 202, the court said: “One may sue on a building contract, though the work be defective or unfinished.” Defendant’s remedy is a reduction of the price to the extent of his damages from the defective performance.

This opinion was followed by this court in Berns vs. Reiss, 12 Orl. App. 126.

In the case of Babst vs. Peritz, No. 7548 Orl. App. this court said:

“The jurisprudence of this State is that a contractor who has delivered his work to the owner may sue him when he has received it and is in the enjoyment of it;. and that the contractor may recover the value of the work which has inured to the benefit of the owner although the work be defective or unfinished; if a price has been agreed upon, the remedy of the owner is a reduction thereof to an amount necessary to perfect or to complete the work according to contract.”

Also Peterson vs. Peralta, 3 La. App. 516:

“In commutative contracts a partial performance authorizes a recovery to the amount to which the other party is benefited, after deducting the damages sustained by a failure to perform the other parts of the agreement.” W. 2 H. D. 1025, No. 4; Taylor vs. Almanda, 50 La. Ann. 351, 23 South. 365; 2 Breaux Dig., p. 657, No. 15 Civil Code 1965 (1960).


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9193
    Orleans
    TAYLOR v. HARRIS
    (Nov. 2, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Marriage—Par. 5.
    Evidence of cohabitation and living together is insufficient to establish a slave marriage, where no proof is made of the consent of the master and nothing upon which the conclusion could bé reached that there was a bona fide intention to assume the marital relation.
    Appeal from the Twenty-eighth Judicial District Court for the Parish of St. Charles, No. 1001, the late H. M. Gautier, Judge.
    Action by Nelson Taylor et al., against Euphrosine Harris et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Prentiss E. Edrington, Jr., of New Orleans, attorney for plaintiffs, appellants.
    L. H. Gosser and F. A. Middleton, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

On November 27, 1916, Euphrosine Antoine, the widow of Isham Harris, who died March 20, 1908, caused herself to. be recognized and put in possession of his succession as widow in community and sole heir, by a judgment of the Twenty-eighth Judicial District Court for the Parish of St. Charles rendered ex parte. The succession consisted entirely of real estate situated in the Parish of St. Charles. On June 7, 1921, plaintiffs herein brought this action against Euphrosine Antoine Harris and some fourteen other individuals to whom Euphrosine Harris had sold portions of the Harris real estate in the meantime, claiming to be the sole and only legal heirs of Isham Harris and praying for a decree, declaring the judgment of November 27, 1916, and all subsequent alienations of the Harris property by Euphrosine Harris a nullity and approving and recognizing the plaintiffs as the lawful ownérs of the property. Defendants admitted possession of the property but denied all the other allegations of plaintiffs. There was judgment for defendants, dismissing plaintiffs’ suit, and plaintiffs have appealed.

Isham Harris, whose property is in dispute, left surviving him, two sisters, Fannie and Harriet Harris, both of whom have since died. The plaintiffs here are claiming as legitimate children of the deceased sisters. Defendants contend that neither sister was married, and could therefore have no legal descendants and also that the parents of all the Harrises, Nelson and Margaret Harris, were unmarried and that Fannie, Harriet and Isham Harris were natural children, who under the law are incapable of inheriting from each other to the prejudice of a surviving wife. R. C. C. 924, reads as follows: -

“If a married man has left no lawful descendants nor ascendants, nor any collateral relations, but a surviving wife, not separated from bed and board from him, the wife shall inherit from him, to the exclusion of any natural child or children duly acknowledged.”

By collateral relations we understand the Code to mean lawful collaterals, Montegut vs. Bacas, 42 La. Ann. 159, 7 South. 449. In this connection see also Succession of Ducroslange, 2 La. Ann. 98. It follows that the wife, Euphrosine Harris, was entitled to Isham’s succession unless his collateral relations were lawful col-laterals. In other words, were Isham’s parents, Nelson and Margaret, married? All parties to this litigation are negroes and, if there was a marriage between Nelson and Margaret, it was a slave marriage, for both of them were slaves at the time of the alleged marriage. The rule with respect to the proof of slave marriages is thus stated by Justice Dawkins in the Succession of Blackburn, 154 La. 619, 98 South. 43:

“The true solution and underlying basis for recognition of a slave marriage is that there should have been a bona fide intention of the parties to assume, with the consent of their masters, the relation of husband and wife, and that this intention should have been carried out by the living together as such thereafter, in good faith, both before and subsequent to emancipation.”

Succession of Blackburn, 154 La. 619, 98 South. 43.

The. proof concerning the alleged marriage of Nelson and Margaret Harris is most unsatisfactory. So much so that we are unable to conclude that there was any sort of marriage between the two. We realize the difficulty in obtaining as well as administering such proof, but we can not, because of the difficulties involved give legal effect to evidence which does not amount to the beginning of proof. Nelson and Margaret lived as slaves on the Pecan Grove. plantation in the Parish of St. Charles. All the witnesses tendered to prove, or disprove the marriage, are very old negroes. Few of them know their age, which in every case is far advanced. The only point upon which all are agreed is that Margaret had four or five children. Some witnesses imputa Hie paternity of the children to Nelson and others to an individual called “Pete”. Honors are no better than even in that respect. There is no evidence of the consent of their master and nothing which would justify us .in holding that there was any intention to assume the marital relation. The best that could be said of the evidence is that it establishes the fact that Nelson and Margaret lived together. This fact of itself can not constitute proof of a marriage, even a slave marriage. Besides there was an interregnum caused by “Pete”.

Plaintiffs bring this suit 13 'years after the death of Isham Harris and 8 years after his widow was placed in possession and had disposed of most of his property. This circumstance adds nothing to the strength of plaintiff’s case which is otherwise very weak.

For the reasons assigned the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9430
    Orleans
    PRENDERGAST v. PARCEL TRANSFER CO., Appellant
    (July 19, 1926. Opinion and Decree.)
    (August 16, 1926. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    The keeper of a garage may be liable for any damage to an automobile in his custody; but deteriorations, not effected by any act of his, are the loss of the owner.
    Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by George Prendergast against Parcel Transfer Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. Vidrine, and W. R. Kinsella, of New Orleans, attorneys for plaintiff, appellee.
    C. I. Denechaud and Claude L. Johnson, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for alleged injury done to an automobile.

The plaintiff alleged that on March 26, 1921, he purchased an automobile for $600; that on June 8, 1921, while his automobile was garaged with the defendant, the motor thereof was operated without oil or water by an employee of said defendant and thereby much injured; that the cost of necessary repairs would be $170; that the defendant company admitted its liability and retained possession of the car for making the repairs which it has not made; that while retaining possession of said car the defendant failed to take proper care of the car, which by reason thereof has suffered a ‘"further damage as follows:

Replacing battery __________________________________$ 30.00

Replacing tires and tubes____________________ 119.40

Repairs to top and body______________________ 40.00

Making a total of________________________$189.40

That after the above repairs are made the car will not be worth more than $300, causing plaintiff a further loss of $300 owing to defendant’s delay and refusal to make the necessary repairs.

Plaintiff claims judgment for six hundred and fifty-nine 40-100 dollars, value of necessary repairs, or for $600 value of his car at the time he placed it in garage with defendant.

The defendant admitted that it held plaintiff’s car in garage, and that its employee, operated the motor of said car; and caused it some damage; that it made certain repairs to the car to'the amount of $244 which restored it to its former condition; that plaintiff could have withdrawn-the car from the garage at any time; that the car has been stored in defendant’s garage since June, 1921, at a charge of $5 per month or $55 which defendant claims in re-convention.

The defendant denied all the other allegations of the petition.

There was judgment for plaintiff for $600 subject to a credit of $40.

The reconventional demand was rejected.

A new trial was refused.

The defendant has appealed.

The evidence is that the plaintiff, who is a machinist, bought a secondhand car from E. P. Toups in the latter part of 1919, or the early part of 1920; it was then in running condition. Toups himself had bought it as a secondhand car from Sam Broussard; in the early part of 1921, plaintiff stored his car with the defendant and obtained permission to use a portion of the garage to make repairs to his car; one witness testifies that the car was a very old car and was in very bad condition; that on one occasion the plaintiff told him that “it was a bunch of junk”. Plaintiff admitted he said that; that some time in June, 1921, after making repairs to his car, the plaintiff drained the water from the radiator and the oil from the crank case and rested his car near the vulcanizing plant. The plaintiff testifies that he “told the garage man not to let anyone touch it because it was dry and had no lubricating oil in it”. No garage man was produced to corroborate that testimony. While the car was in that position, one of the workmen about the garage, James Barr, having use for the vulcanizing plant, got into the car and started the engine racing for the purpose of changing the position of the car which was in the way and ran it for four or five minutes; Barr swears that no one warned him that the water and the oil had been drained from the car; at that moment there was a great noise and the connecting rods came through the crank case and much damage was done.

The defendant company expressed its willingness to repair the damage done by the act of their employee. The defendant is not in the repair business, they are in the transfer business; they secured the services of a mechanic, George Bozant, to re-assemble the motor and put it in shape. The plaintiff objected to this mechanic stating that he did not think he was competent.

The defendant then resorted to another mechanic, Boehn. He did not please the plaintiff either. Then the defendant offered to employ James Jurgens an automobile engineer of 21 years’ experience, for 14 years operating an automobile repair shop for himself, and inspector and appraiser for eleven insurance companies.

The plaintiff accepted Mr. Jurgens and the car was left with him with instructions “that the work was to be done to the satisfaction of Mr. Prendergrast insofar as the damage done to the machine in our garage was concerned”.

The defendant spent, in repairs upon the car, $244.18. Still the plaintiff was not satsified. He wanted the cylinders rebored and new pistons, -which defendant refused to do as this necessity did not arise from the accident but from long usage of the car. Jurgens testified that he made the repairs and delivered the car to plaintiff in “running, satisfactory condition for a car of that value”. But the plaintiff was not satisfied. He returned the car to the defendant; he left it there and later filed this suit.

The defendant was the custodian of the car; it was on deposit with it, and in the language of Art. C.' C., 2937, they were “bound to use the same diligence in preserving the car that they used in preserving their own property.” By consent the car was sold for $40 which was paid to plaintiff.

If the car was injured or deteriorated in value for want of that diligence or care the defendant is liable. But it is only liable for damages caused by want of care on its part. It is not liable for deterioration caused by time.

G. G. 2945 (2916) “The depositary is only bound to restore the thing in the state in which it is at the moment of restitution. Deteriorations, not effected by any act of his, are the loss of the depositor.” '

It is doubtful in the first place whether defendant was liable at all.

The act of James Barr in starting the motor car to move the car from its place was in the usual course of - business and would not 'have been negligent had not the water and oil been drained from the car.

The plaintiff felt as much for he says that he “told the garage man not to let anyone touch it because it was dry and had no lubricating oil in it”.

He did not give the name of the garage man, and Barr, who moved the car, says that he was not warned by anyone.

But assuming that defendant is liable its liability is well- defined by Adam Lorch, their secretary-treasurer and manager; “so far as the damage done to the machine in our garage was concerned”.

The testimony of James Jurgens, a disinterested witness, and the bill for the repairs made by defendant, establish beyond a doubt that all the damages caused to the car was repaired as far as possible for a car of that age, and that much more was done.

The plaintiff showed the condition of the car by the testimony of R. F. Viosca, an automobile mechanic. He examined the car in April, 1922, ten months after the accident, and calculated the necessary repairs at $394. Included in those repairs are the cost of tires, dead battery and motor and rotten woodwork and paint, and rusty metal. None of these damages were caused by the accident. The car was in a shed, and plaintiff knew it, and it remained there without any protection on his part. The motor and battery were dead for laying up so long, and the tires had rotted from standing in the same position so long, “even brand -new tires left in a stock after a year and a half or two years, it won’t last any time at all” said plaintiff’s witness, Viosca. Viosca said:

“Q. What would you estimate the value of the car, after those repairs that you figured on would have been done; what would that automobile be worth on the market?

“A. I hardly think it would have brought the money that would be put into the thing by way of repairs.”

After describing the condition of the car when he undertook to repair it Jurgens, valued it at $200.

“Q. Now, Mr. Jurgens, from your experience as a mechanic and automobile engineer, if an engine such as this had been run for four or five minutes after the oil and water had heen drained out of it would it have caused the damage as you found in the. crank .case and connecting rods?

“A. Not unless the car was driven on a highway in high gear, the full strain of the car, in my opinion, takes an average of 30 minutes even after oil is drained from the crank case and water is removed, the motor would freeze, by that I mean the pistons would become so hot and expand so much that it would cause the motor to stick and stop, commonly known as freeze.

“Q. Would you say it would have been possible for the damage to be caused such as was caused, if this engine at the time it was run was in good mechanical condition?

“A. It would he impossible.

“Q. If all the connecting rods,, bearings, and bolts had heen tight and in good condition, would it have been possible they did if this motor was run say four or five minutes?

“A. It would be impossible.”

The speedometer on the car registered 23,000 miles.

If plaintiff was dissatisfied with the repairs ipade by the defendant, it was his duty to have had the repairs made himself, and to have charged the cost of them to the defendant. He could have taken the car at any time. He had no right to abandon the car as a total loss and then charge the defendant with what he had paid for it a year and a half previously. Silverman vs. St. Louis I. M. & S. Ry., 51 La. Ann. 1785, 26 South. 447.

We have arrived at the conclusion that the defendant was not liable for the act of one of defendant’s employees in racing the motor of the automobile under the circumstances of this case. But that even if defendant was liable, he caused to be made all repairs which had become necessary by the act of the employee; that all the damages that subsequently developed upon the car was brought about by the failure of the plaintiff to resume possession of his car and to make the repairs himself and thus to allow the car to remain idle, and in that manner to deteriorate.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment rejecting plaintiff’s demand at his cost in both courts.


text:
    No. 10,526
    Orleans
    ITTMAN, Appellant, v. KRACKE & FLANDERS CO. On Rule of WM. D. SEYMOUR COMPANY, INC., Against CANAL-COMMERCIAL TRUST & SAVINGS BANK, (NOW CANAL BANK & TRUST COMPANY), RECEIVER OF KRACKE & FLANDERS COMPANY.
    (October 18, 1926, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Judgment—Par. 187.
    . A plea of res judicata must he overruled when the nature of the case differs from the suit in which the judgment pleaded was rendered.
    2. Louisiana Digest — Judgment—Par. 172, 184, 185. •
    A judgment homologating a provisional account is res judicata only as the funds appearing on the account.

      3. Louisiana Digest — Judgment—Par. 172, 175, 177.
    Where a receiver collects money due one of the creditors of the receivership in the erroneous belief that it belongs to the receivership the creditor’s claim for the return of the money erroneously paid is not subject to a plea of res adjudicata based upon the creditor’s failure to oppose and the homologation of the receiver’s provisional account containing the creditor’s name as an ordinary creditor.
    Appeal from Civil District Court, Division “B”, Hon. Mark M. Boatner, Judge.
    Action by Alfred C. Ittman et al. against Kracke & Flanders Co. on rule of Wm. D. Seymour Company, Inc., against Canal-C.ommercial Trust and Savings Bank (now Canal Bank and Trust Company), receiver of Kracke & Flanders Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    H. L. Hammett, of New Orleans, attorney for plaintiff in rule, appellant.
    W. J. Suthon, of New Orleans, attorney for defendant in rule, appellee.
   WESTERFIELD, J.

Wm. D. Seymour Company, Inc., whom we shall hereafter refer to as plaintiff, prosecutes this appeal from a judgment dismissing a rule taken by it against the Canal-Commercial Trust and Savings Bank, as receiver of Kracke & Flanders Company, wherein plaintiff claimed $420.57, which amount, it was alleged, was collected by the Canal Bank, its receiver, in error, and, as partial payment of a note of the Cordes Ayrault & Company, Inc., of Tonawanda, New York, belonging to plaintiff.

The judgment, complained of, maintained a plea of res judicata based upon the homologation of the first provisional account of the receiver.

The plea of res judicata was, with another exception filed by the receiver, referred to the merits, and after a trial upon the merits maintained. We can only consider the ruling on the exception.- Gordon vs. Business Men’s Racing Assn., 140 La. 674, 73 South. 768. Counsel, in argument, and in their briefs, have made frequent allusion to the testimony developed on the trial on> the merits, and, at the same time, with a little inconsistency, we are admonished by counsel for the receiver to bear in mind our inability to determine the controversy on the merits. We shall limit our consideration to the rule of plaintiff as presenting his cause of action and to the provisional account of the receiver as the basis of the plea of res adjudicata.

The allegations of the rule are, in effect, that plaintiff owns a note which the maker partially paid to the receiver, in the mistaken belief that the note belonged to the receivership.

The provisional account shows total collections of $17,040.68. One item collected, amounting to $107.68, is described as “Cordes, Ayrault & Co., Inc. — Notes Receivable”.

It is proposed to disburse all of the money collected to .creditors except $961.04 which is retained by the receiver for the reason that “there are numerous other claims asserted on behalf of the receivership in litigation and this amount may be needed to meet the expenses incident to such litigation”. Among the creditors listed the name of plaintiff appears as an ordinary creditor in the sum of $5526.33. It is argued that because plaintiff’s name appears on the account as a creditor and because the name of the maker of the note, which plaintiff claims to own, appears as the source of a collection of $107.68, plaintiff’s present claim, must succumb to the plea of res judicata, no opposition having been filed in plaintiff’s behalf to the homologation of the provisional account.

We are referred to the Succession of Triche, 39 La. Ann. 289, 2 South. 52, where it was said:

“When in a contested provision account, the amount and rank of various charges and privileged claims have been settled by final decrees of court, the same claims cannot be again contested when presented in a final account of distribution.”

And to the Succession o'f Conrad, 45 La. Ann. 89, 11 South. 935, holding that:

“An account filed by an executor, which purports a partial distribution of the proceeds of sale and of rents collected among creditors of the succession he is administering, when duly homologated according to law, after due publication, is final and conclusive as to all the world — heirs as well as creditors — in respect to the amount and validity of the claims opposed; and, as to heirs as well as creditors, such judgment of homologation constitutes res adjudicata in respect to the amount and validity of said claims — thAigh they have not been personally cited.”

Succession of Triche, 39 La. 289, 2 South. 52:

In the case of Villere vs. New Orleans Pure Milk Co., 125 La. 719, 51 South. 699, it was held that a judgment homologating a provisional account is res judicata to the extent of the funds distributed in such account and no further and that consequently a creditor non-suited in his opposition to the provisional account may prove his claim on homologation of the final account in which other funds are to be distributed.

But, in the case at bar, plaintiff is mentioned with the other creditors of the receivership as the holder of a claim against the receivership. The rule to which the plea of res adjudicata is addressed, based on the provisional account, does not present a claim against the receivership but in a sense against the receiver, which is said to have collected money which did not belong to the receivership. In other words the receiver has some of plaintiff’s money which came into its possession, under circumstances beyond criticism, but nevertheless without any legal title thereto. The creditors of the receivership are not entitled to divide plaintiff’s money received by their representative in error.

It can not be said that this issue has been adjudged because plaintiff was recognized as an ordinary creditor in a different amount, a much larger amount, than is claimed in the rule, which amount so far as appears on the face of the papers is in no way connected with the note alleged to have been partially collected by the receiver.

. Nor does the fact that the account contains an item among the receiver’s collections described as “Cordes Ayrault & Co., Inc. — Notes Receivable, $107.68”, have the effect of estopping plaintiff from claiming $420.57 alleged to have been paid by the Cordes Ayrault Company to the receiver as partial payment on a note belonging to plaintiff in the erroneous belief that the note belonged to the receivership. It might well have been that the receivership also held a note of the Cordes Ayrault Company.

Finally, we find no merit in the argument that the provisional account proposes to distribute nearly all the money collected by the receiver, including plaintiff’s money, and that there is therefore no means of paying plaintiff’s claim should it be recognized. In the first • place there remains in the receiver’s hands under the distribution proposed by the account, a sum more than sufficient to pay plaintiff’s claim. It is true the receiver expects this money to be used as expense in defending or prosecuting litigation, in which it *is interested, but such expression by the receiver is not conclusive. Besides, little or none of the amount so withheld may be required and in addition further sums may be collected by the receiver as the provisional account intimates. In any event the plea of res adjudicata can not be maintained under the circumstances of this case.

It is therefore ordered that the judgment appealed from be reversed and it is now ordered that the plea of res adjudicata be overruled and this case remanded for trial upon its merits -and according to law.


text:
    No. 10,388
    CONAWAY AND CLARK v. MARINE OIL CO., LTD.
    (March 1, 1926, Opinion and Decree.)
    (March 15, 1926, Rehearing Refused.)
    (November 3, 1926, Affirmed by Supreme Court on Writs of Certiorari and Review.)

      (Syllabus by the Court)

    1. Louisiana, Digest — Master and Servant Par. 158.
    Under the compensation law of this state, an injured workman can only recover compensation for disability and his dependents for death due to injuries arising out of and in the course of his employment. It is not sufficient that such disability or death occur in the course of the employment.
    2. Louisiana Digest — Master and Servant —Par. 158.
    Where an employee of a gasoline and oil filling station is killed in the accidental discharge of a revolver in the hands of a fellow servant, his dependents cannot recover under the- compensation law of this state, particularly where it is not contended that the revolver accidentally discharged was the property of defendant and kept on the premises for protection and possible use in defense of defendant’s property.
    Appeal from Civil District Court for the Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    Action by John Conaway, individually and to aid, authorize and assist his wife, Mrs. Lilly Clark, against Marine Oil Company, Ltd.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    H. A. Moisef of New Orleans, attorney for plaintiffs, appellants.
    E. R. Mabry, of New Orleans, attorney for defendant, appellee.
   ' OPINION

WESTERFIELD, J.

Plaintiffs, the father and mother respectively of a deceased son, bring this action under the Employers’ Liability Act for compensation for the accidental death of their said son.

From a judgment maintaining an exception óf no cause of action, plaintiffs have appealed.

It is alleged that petitioner’s son was employed at a gasoline oil filling station conducted by defendant and that while engaged in “blowing up” a tire for a patron of said oil station he was killed by a shot from a revolver which was accidentally discharged by’ a fellow workman.

The contention of defendant is, first, that plaintiff’s son, whom we shall hereafter call Conaway, was not engaged in a hazardous occupation, and, secondly, that the fatal injury to the employee did not arise out of his employment.

As stated by this court and quoted with approval by the Supreme Court in the case of Benjamin vs. Standard Accident Ins. Co., 152 La. 878, 94 South. 428, “Under the Employers’ Liability Act”, there are two classes of occupations that are protected. They are those that are denominated as “hazardous” in Section 1, ' par. 2 (a) of the Act, and those that are made so by agreement of the parties or by judgment of a court in both cases prior to the accident, 14 Court of App. 230, Dejan vs. Ujiffy, and Anderson vs. Tharp, No. 7373 Ct. App. The law was never intended to protect employer of employee in an occupation not hazardous, because in the absence of danger they needed no protection.

There is no question here of any agreement of parties or judgment of court pronouncing Conaway’s occupation hazardous, consequently we turn to Sec. 1, par. 2 (a) of the Act to determine whether there is any occupation there enumerated which might embrace the employment we are considering here. We find the following among other descriptions of hazardous employment in the section referred to:

“Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gun powder, dynamite, nitro gylcerine, and other like dangerous explosives.”

It might well be doubted -whether gasoline can be classed with gun powder and nitro glycerine, as a “like explosive”, but in the spirit of liberal construction in the interest of the employee, which courts have always construed the compensation law, we are inclined to the opinion that Con-away’s occupation can be considered as embraced by the provision we have quoted.

Did the unfortunate 'accident “arise out of and in the course of” Conaway’s occupation is the next consideration?

There can be no question that it occurred “in the course of”, but it must also have arisen “out of” his occupation. Plaintiffs’ counsel frankly ■ states his position to be that all injuries received “in the course of” an employee’s occupation necessarily arise “out of” such occupation. • He argues that any other view of the compensation law restores the defenses of assumption of the risk of employment and negligence of a fellow servant expressly repudiated by the act, citing Ferguson vs. Kody-McFarland Gravel Company, 156 La. 874, 101 South. 248, where it was said:

. “The moment we begin to indulge in hair-splitting distinctions in cases of this kind, that moment we approach the danger line of reading into the statute the defenses that the employee assumes the risk of his employment, a defense which the employer is expressly prohibited from urging under the Employers’ Liability Act against a claim for compensation by a workman. Act 38 of 1918, Paragraph 4. Whether the employer, the employee or the fellow employee . is guilty of negligence or not is immaterial, so far as liability of the employer is concerned. Garcia vs. Salmerr Brick & Lumber Company, 151 La. 784, 92 South. 335.”

We are aware of the quasi parental attitude of the law towards injured workmen and have had occasion purselves to give expression to views in consonance with the curfent of authority to this effect, hut it must be remembered that there are limits to the most liberal construction beyond which courts cannot go without just criticism.

Our law, like that of most of the states, as well as the English law, makes compensation for disability or death resulting from accident to employees depend upon the condition that 'the accident shall have arisen, “out of and in the course of” the employment. Some of the states, for example, North Dakota, Ohio, Pennsylvania, Texas, Utah and West Virginia, as well as the Federal Act, provide only that the accident shall arise “in the course of employment”. Wyoming uses' the phrase, “injured in hazardous employment”, and Wisconsin, “growing out of and incidental to the employment”. See Scneider’s Workmen’s Compensation Law, Vol. I, p. 282.

In such jurisdictions, therefore, as have chosen to do so, it is provided that workmen may recover for all injuries received in the course of their employment, but in Louisiana it is otherwise, and the injury must “arise out of” as well as “in the course of” such employment. This mueh is clear and suffices to dispose of the broad contention of counsel, but the application of our law and the interpretation of the phrase, “out of and in the course of”, is not so clear. The principal difficulty is with the words “out of”, for it is comparatively easy to determine what injuries are received in, the course of an employee’s occupation. In a Massachusetts case, 102 N. E. 697, the Supreme Court of ■that state said:

“An injury may be said to arise out of ■ the employment when there is apparent to the rational mind upon consideration of all circumstances, a causal connection between the conditions under which the work is required to be performed and the re-, suiting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment; then it “arises out of” the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not to have been foreseen or expected, but after the event. it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

Our Supreme Court has said (Meyers vs. La. Ry. and Nav. Co., 140 La. 937, 74 South. 256):

“The 'test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the inr jury resulted was greater for the workman than for a person not engaged in the employment.”

In Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677, it was held that an engineer who was shot by an unknown party, while firing his engine at night, in a lonely spot in the woods, could recover because:

“We think that where a workman is exposed to some risk manifestly necessitated by his employment he is entitled to his compensation, unless it be also manifest that he would at the time of the occurrence have been qually exposed, to the same risk outside of his employment. And - we cannot assume that a man is exposed to the same danger of attack at his own home or in some frequented place, or in the daytime, as lie would be when called by his employment to some lonely spot and in the night time.”

In Ferguson vs. Kody-McFarlane Gravel Co., 156 La. 871, 101 South. 248, plaintiff, a track employee, was struck on the head with an iron instrument by a fellow employee. His injury was held to be compensable because:

“As the statute expressly makes the employer liable, even, when the injury occurs through the tort of a third person, for the stronger reasons the employer should be held liable when the injury results from the tort of a fellow employee, as the employer and his employees have contracted among themselves, to come under the terms of the Employers’ Liability Act, a statute essentially intended to provide insurance for the employee against ‘all the risks to which he may be exposed by his employment’.”

In the case at bar, Conaway was shot in the course of his employment by a careless fellow servant. There is no casual relation between the source of his injury and the character of his employment. Conaway’s duties did not expose him to the danger of accidental shooting, nor is there any allegation that the revolver from which the shot was fired belonged to Conaway’s employer and was kept on the premises for protection and possible use in defense of defendant’s property. We cannot say that there was any feature of Conaway’s employment which was a contributing or proximate cause of his injury. It was no more to be expected that Conaway would be shot while at work in the manner alleged and by a careless fellow servant than that he should be similarly injured at home by a member of his family. It happened that he was shot while at work. He was not more exposed to such injury while at work than otherwise and elsewhere. That it should so happen was providential. To look for a cause is to attempt to solve the riddle of the universe or fathom the inscrutable ways of Providence which are “past all finding out”. In any event, we are convinced that Conaway’s injury and resulting death did not arise “out of” his employment, ■ consequently, the judgment appealed from must be and it is 'hereby affirmed.


text:
    No. 9449
    Orleans
    STERN’S AUCTION EXCHANGE, Appellant, vs. FELDMAN
    (Nov. 2, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 111.
    A purchaser of movable property who allows the vendor to remain in possession of the property sold loses his title as regards subsequent purchasers from the same vendor without notice of the prior sale.
    2. Louisiana Digest — Evidence—Par. 59.
    The burden of proof to show, notice is upon the first purchaser.
    3. Louisiana Digest — Fraudulent Conveyances — Par. 43.
    The fact of relationship does not of itself constitute a badge of fraud.
    Appeal from the Civil District Court, Hon. H. C. Cage, Judge.
    Action by Stern’s Auction Exchange against Benjamin Feldman.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Eugene Hayford, of New Orleans, attorney for plaintiff, appellant.
    Arthur Landry, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the recovery of furniture.

The plaintiff alleged that on October 5, 1923, E. Thebner sold to him from his. store 630 St. Peter Street a lot of furniture described in the list annexed to the petition for the price of $260 payable $25 cash, and the balance after the sale of the furniture by plaintiff; that on October 7th, 8th and 9th plaintiff advertised said furniture for sale at auction on October 9th at 630 St. Peter Street; that on October 7th, Benjamin S. Feldman, uncle of defendant, well knowing that plaintiff had purchased said furniture, fraudulently arranged with said Thebner to remove said furniture from No. 630 St. Peter Street to the premises of his nephew, defendant herein, Benjamin Feldman, 731 St. Louis Street, who has refused to return the same to plaintiff; he prayed for a sequestration and for judgment condemning Benjamin Feldman to return said furniture to him.

The defendant filed an exception of no cause of action and a motion to dissolve the sequestration on the ground of the insufficiency of the- affidavit.

On November 19, 1923, judgment was rendered dissolving the sequestration.

A new trial was refused. Plaintiff has appealed.

The defendant admitted that he was in possessibn of the furniture and that he had refused to turn it over to the plaintiff, but denied all the other allegations of the petition.

Further answering he alleged: “That he purchased the furniture in good faith for the sum of $345 from Benjamin S. Feldman, auctioneer, on October 8, 1923, and with no knowledge of any claim on same through a sale or otherwise by plaintiff herein”.

This answer is certified by Benjamin S. Feldman. After a lenghty written opinion judgment was rendered in favor of defendant, Benjamin Feldman, dismissing plaintiff’s suit.

Plaintiff has appealed..

The defendant is Benjamin S. Feldman, “nephew of Benjamin Feldman, or sometimes the one and at other times the other. They are both known as Benny Feldman”; each of them calls himself Benny Feldman, and each is known in the circles in which they .move and in which they deal as “Benny Feldman”. So said the trial judge.

The first question is, did Thebner sell to plaintiff (Stern); the second, did Thebner sell to Feldman; third, if both these questions are answered in the affirmative, was the sale by Thebner to plaintiff (Stern) known to Feldman and binding on him?

The trial judge found that Thebner did sell previously to Stern, and that he also subsequently sold to Feldman. But it was not proven to his satisfaction, that at the time he purchased, the defendant, Benjamin S. Feldman, had knowledge of the previous sale by Thebner to Stern.

In view of our conclusions upon the merits of the case it is unnecessary to review the judgment dismissing the sequestration.

The law of the case is laid down in Article C. C. 1922 (1916):

“With respect to movable effects, although, by the rule referred to in the last two preceding articles, the consent to transfer vests the ownership of the property in the obligee, yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should, by a second contract, transfer the ownership of the property to another person, who gets the possession before the first obligee, the last transferee is considered as the owner, provided the contract be made on his part bona fide, and without notice of the former contract.”

C. C. 2247; C. N. 1141; C. C. 2247 (2243):

“Sales or exchanges of movable property are void against bona fide purchasers and creditors unless possession is given before such bona fide purchaser or creditor acquires his right by possess-'n-n p-1" ”

“Traditionibus et usucapionibus, non Nu-dis pactis, dominia rerum transferuntur. L. 20 C. de Pactis. Code 1808, p. 346, Art. 4; Durnford vs. Syndics, 3 Martin O. S. 225; Brooklyn Cooperage Co. vs. Cora Planting & Mfg. Co., 137 La. 807, 69 South. 195; 6 La. Dig., S. 111, p. 540; 2 Kent., S. 521.

The evidence satisfies us, as it did the trial judge, that Thebner promised to sell to Stern for $260, and that Stern paid Thebner $25 to hind the sale promising to pay the balance after he had himself sold it at auction. He left Thebner in possession of the furniture which was never delivered to him, and made no further payments.

We are also satisfied that subsequently, tempted by a larger price, Thebner sold the same furniture to one of the Feldman for $320. Whether it was to Benjamin the uncle, or 'to Benjamin S. the nephew the present defendant, or to both is immaterial.

The material fact is that the furniture was subsequently sold to another, and by him taken in his possession.

We are also satisfied that one of the Feldmans paid for the furniture and took possession of it. The sole question in doubt is: Did the Feldman’s buy “bona fide and without notice” of the former sale to Stern? The burden is upon the plaintiff to make that proof.

Benjamin and Benjamin S. Feldman, both swear that they had no knowledge of the prior sale by Therner to Stern. The only testimony to- contradict them is that of the plaintiff and of his employee, they testify that on some date prior to Feldman’s purchase one of the Feldmans held a communication by ’phone with Stern, in which sale by Thebner to Stern of this .furniture was the subject of conversation. Both the Feldmans deny this. The veracity of the Feldmans is somewhat affected by the fact that the defendant swears that he paid $345 to his uncle “in cash” while the uncle testifies that it was “by check”. Other differences also appear.

The Feldmans are also uncle and nephew. But the fact of relationship does not of itself constitute a badge of fraud. O. 9 M. 655; 1 N. S. 535; Maurin & Co. vs. Rouquer, 19 La. 600. But the burden of proof is upon the plaintiff to show notice.

He has not met it with any degree of certainty. The plaintiff will lose only $25 by a judgment against him, while the defendant will lose $345. The judgment of the trial court is not manifestly erroneous and it is therefore affirmed.


text:
    No. 10,554
    Orleans
    EMPOLYERS’ CASUALTY CO. v. HENRY MAECKLIN, JR.
    (November 2, 1926, Opinion and Decree.)

      (Syllabus by the Court)
    I. Louisiana Digest — Automobiles—Par. 4, 4 (d).
    The driver of an automobile, proceeding at a reckless speed with his car out of control through the city streets, will be held exclusively responsible to the owner of a building for damages caused by his sudden turning to the left and driving across the banquette ' and into the building, notwithstanding the fact that the turn to the left was occasioned by the negligence of the driver of a motor truck parked on the wrong side of the street and backing into traffic and across the path of the automobile, when it appears that, but for the reckless speed of the automobile, the accident could have been avoided.
    Appeal from First .City Court, Hon. Yal J. Stentz, Judge.
    Action by Employers’ Casualty Co. against Henry Maecklin, Jr.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee. '
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $228.00 brought by plaintiff, as subrogee of William Terry, against defendant, for damages, alleged to have been caused by defendant’s automobile.

From a judgment as prayed for defendant has appealed.

Defendant is the owner of the Swiss Confectionery, and his responsibility for the damages claimed is alleged to arise under the following circumstances:

A motor truck operated by the Swiss Confectionery was parked on the left-hand side of Chartres street, between Press and St. Ferdinand streets, in front of a building owned by William Terry. Walter M. Duffourc was driving his Dodge Sedan down Chartres street and as he approached the truck operated by the Swiss Confectionery, it began to back across the path of the Dodge Sedan. Duffourc, in order to avoid a collision with the truck, turned to the left, and, crossing the sidewalk, ran into the Terry Building, with the result that it was damaged in the sum claimed. Plaintiff company, which had issued its policy to Duffourc, covering property damage caused by his automobile, paid Terry and took a subrogation.

The question is whether the damages sued for were occasioned by the fault of the driver of defendant’s truck, or by Duffourc, the owner and driver of the Dodge Sedan. The fact that plaintiff is the subrogee of Terry, a third person, can not alter the situation because defendant can only be held for ’damages due to his fault, no matter who suffered the damage. Obligations arise from contracts and quasi contracts and from offenses and quasi offenses.

The driver of defendant’s truck was guilty of negligence. He violated the traffic ordinance in at least one important particular. He parked his truck on the left side of the street with the left side of his truck nearest the curb. Ord. 7490 C. C. S., Art. 3, Par. 3. He may have violated other sections of the ordinance by attempting to turn around and by failing to extend his arm in a horizontal position as a warning of his intention to drive out into a stream of traffic. See Art. 1, Par. 6, and Art. 1, Par. 2, of the Ordinance. However, the evidence conflicts in this regard. Suffice it to say that defendant was negligent. In the view we have of the case it is immaterial whether in one or more particulars.

We have next to inquire whether defendant’s negligence was the cause of the accident, for it is only in that event that defendant can be liable. Belocq vs. Hotel DeSoto Co., No. 8569 Orl. App.; Mitchel Bros., Inc., vs. Chas. Mallynn, 3 La. App. 69; Huddy on Automobiles,, 6th Edition, p. 468.

Duffourc’s car, the Dodge Sedan, according to the testimony of its driver, was coming down Chartres street at ten miles per hour and when within twenty or twenty-five feet of the defendant’s truck, the truck began to back out. The speed was exceptionally slow we are told because the street was covered with “stick tar”. If this testimony evidence is believable then Duffourc was alone to blame for the trouble because he had ample opportunity to stop his car and it was unnecessary to drive to the left and into Terry’s building. Huddy on Automobiles, 6th Edition, Sec. 411, p. 480. A mechanic testifying in plaintiff’s behalf said a car going ten miles per hour could be stopped in less than ten feet. But we can not believe this evidence, and we find Duffourc exclusively responsible for reasons yet more evident. He was driving at a reckless pace and his car was not under control. Some witnesses estimate his speed at 20 and others at 30 miles per hour. Such estimates are only guesses at best. The physical -facts in relation to the career of the Dodge car after discovering the truck was in its path and after turning to the left to avoid a collision with the truck are more convincing and are eloquent of great speed. An automobile, which, like the Dodge in this case, runs over an eleven-inch curb, across an eight-foot sidewalk and over another curbing ten inches high protecting a flower bed, and into Terry’s building, knocking off the weatherboarding and a sliding door, and bowls over a 12xl2-inch post before coming to rest, notwithstanding the effort of the driver to stop it, may fairly be charged with excessive speed and said to be out of control.

In Giardina vs. Massaro et al., 9648 Orl. App., a case strangely similar to the present one, we said:

“Where a Ford automobile collided with another Ford automobile at a street crossing and after the impact jumped the curbing, proceeded along the sidewalk, knocked down a door of a grocery store, injured a pedestrian and was finally brought to a stop by steps on the sidewalk, the circumstances are so persuasive of excessive speed as to require strong proof to establish the contrary.”

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


author: REYNOLDS, J.

text:
    No. 2668.
    Second Circuit
    McKINNEY GRAIN CO. v. BANK OF COTTON VALLEY
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Banks—Par. 71.
    Bank receiving draft for collection at distant point, in absence of instruction from depositor to send it to particular bank, is responsible for negligence of bank to 'which it intrusted draft; but in such case there is no privity of contract between depositor and bank to which draft was intrusted.
    Martin vs. Bank, 127 La. 301, 53 South. 572.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. J. S. Richardson, Judge.
    Action by the McKinney Grain Co. against the Bank of Cotton Valley.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. F. Mclnnis, of Minden, attorney for plaintiff, appellant.
    Lee and Lindsey, of Minden, attorneys for defendant, appellee.
   REYNOLDS, J.

This case was submitted for decision on an agreed statement of facts, from which it appears that plaintiff, a resident of McKinney, Texas, deposited in the Central State Bank of that place for collection two drafts, one for $850.38 and the other for $1,011.22, drawn by it on Cole Brothers of Cotton Valley, Louisiana.

To each of these drafts was attached a bill of lading for a carload of corn.

The bills of lading were issued to shipper’s order, and the bank was instructed by the forwarding bank not to surrender them unless and until the drafts were paid.

The Bank of Cotton Valley, in violation of the orders under which it received the drafts for collection, surrendered the bills of lading to Cole Brothers without payment of the drafts and that Cole Brothers thereby obtained possession of the corn from the carrier.

Thereafter the Bank of Cotton Valley transmitted to Central State Bank of McKinney two checks signed by Cole Brothers drawn on it in favor of Central State Bank in payment for the two cars of corn and that the checks were presented for payment by the Central State Bank but were not paid.

That the Bank of Cotton Valley closed its doors on April 13, 1925, and was taken charge of by the State Bank Examiner for liquidation about May 11, 1925.

Plaintiff seeks to hold the Bank of . Cotton Valley for the amount of the drafts because of its surrender of the. bills of lading without 'payment of the. drafts in violation of its instructions.

The defense is that there was no privity of contract between plaintiff and the Bank of Cotton Valley and therefore plaintiff cannot maintain the action.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing its suit and it has appealed.

OPINION

In an able and well-written brief counsel for plaintiff cite numerous common law authorities in support of their contention that there was a contractual relation between plaintiff and defendant. Their contention is forceful and if. the question were res nova in Louisiana we would find some difficulty in reaching a decision.

In Taylor & B. Co. vs. National Bank, 262 Fed. 170-172, the court said:

“Holding owner depositing commercial paper for collection cannot sue correspondent bank for negligence, his remedy being against bank with which he had contracted.”

In First National Bank, etc., vs. Quinby, 62 Tex. Civ. 418 (131 S. W. 432), it was held that a bank receiving a draft for collection at a distant point, in absence of instruction from depositor to send it to a particular bank, is responsible for sub-agents employed in collection.

And in Martin vs. Hibernia Bank & Trust Co., 127 La. 307, 53 South. 572, the Supreme Court of Louisiana said:

“A subagent employed by the agent' is not a substitute in the sense of the Civil Code. The case is therefore governed by the general principles of commercial law. If the check had been forwarded by the Areola State Bank as collecting agent, that institution would have been liable to the plaintiff for any loss occasioned by the conduct of its subagent, between whom and plaintiff no privity existed.”

Under this authority, the ruling of the learned district judge was correct. It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 2759
    Second Circuit
    GILL v. SHAW
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Brokers—Par. 23.
    In a suit for commission on the sale of real estate which was never consummated, the burden of proof is on the plaintiff' to show that a definite offer • to sell was made by the defendant and was accepted as made by the prospective purchaser and that the defendant subsequently, without just reason, refused to transfer the property.
    Hauch vs. Bonnabel, 134 La. 847, 64 South. 795.
    2. Louisiana Digest — Brokers—Par. 2, 15, 19, 21.
    Where a real estate broker calls on his client to execute a deed to property and there arises a dispute as to the terms on which the. property was to be sold and the broker accepts for sale a portion of said property on different terms, lie tacitly acquiesces in his client’s contention as to the original terms on which the first sale was to be made.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. J. W. Elder, Special Judge.
    Action by R. M. Gill against A. A. Shaw.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. L. Walker, of Ruston; attorney for - plaintiff, appellee.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by a licensed real estate broker to recover $300.00 commission on a sale of real estate that was never consummated. He alleges that the defendant listed with him nine acres of land situated in the town of Ruston, Louisiana, for sale at the price of $6000.00, provided the purchaser would buy his stock of merchandise at cost, and agreed to pay the plaintiff a commission on the sale of the real estate, and that he procured a customer who offered to purchase the property listed on the terms and conditions fixed by defendant and that' defendant without just reason refused to make the sale and that plaintiff was therefore entitled to his commission of $300.00.

Defendant admitted that Mr. Gill stopped him just as he was starting down the steps in the Price building and asked him what, he asked for his property and that he said: “I have been holding it for $6000.00, but if I should sell it at all the purchaser/would have to buy my business”. He denied, however, that he had listed his property with plaintiff for sale, and especially denied that he agreed to pay a commission.

Defendant also filed an. exception of no cause of action and a plea of prescription of one and two years.

On these issues the case was tried and there was judgment in favor of the plaintiff and defendant appealed.

EXCEPTION OP NO CAUSE OP ACTION

The exception of no cause of action does not' set forth in detail in what respect plaintiff’s petition fails to state a cause.of action and under all of the allegations of the petition, taken as true, we think it expresses a cause of action.

PLEA OP PRESCRIPTION

Defendant does not urge his plea of prescription in his brief. We therefore take it that he has abandoned same.

MERITS

This suit is brought by a licensed real estate broker to recover $300.00 eommissioif He alleges that defendant listed with him for sale nine acres of land and improvements for $6000.00 conditioned on the purchaser also buying his stock of merchandise at cost and that he agreed to pay a commission on the sale of the real estate.

Defendant denied that he listed his property with plaintiff and especially denied that he agreed to pay a commission.

A correct decision of this case we think depends on whether or not defendant listed his property with plaintiff and agreed to pay a commission as alleged by plaintiff. Plaintiff swore positively that defendant did list his property with him and agreed to pay -a commission. Defendant swore positively that he did not.

The burden of proof rested on plaintiff, and when two witnesses of unimpeached reputation swear directly oppositely the testimony of one offsets the testimony of the other and nothing has been proven.

The trial judge so held, but he further held: - .

“However plaintiff is largely borne out in his contention of the property to be sold by the witnesses, Moore, Holland and Brown. None of these witnesses have any interest. After the first agreement of these three witnesses to buy the property defendant then wanted to include his stock of goods. Plaintiff even got them to agree to take his stock of goods. Then defendant claimed they should take his notes; this they refused to do. It seems to us that if this was his (defendant’s) contenf'on he should have made this plain to all partibs while the negotiations were pending and not have Waited until the last to raise this contention.”

We have profound respect and appreciation for the opinion of our learned brother, the special judge in this case, but we have been unable to concur in the above holding.

The defendant Shaw and the three witnesses named in ■ the quotation from the opinion of the judge a qua, namely, Moore, Holland and Brown, never met in connection with the matter now in dispute; Mr. Holland and Mr. Brown had no conversation at all with Mr. Shaw on the subject, and Mr. Moore had but one. That was in the office of Mr. Gill, and it was then and there made plain that defendant would not sell his real estate unless he could also sell -his business, including his notes and accounts. At. this , time Mr. Moore had not been authorized, to buy. for Holland and Brown anything except the real estate. Therefore Mr. Gill, at that" particular time, had no authority to buy for Holland and Brown anything other than the real estate, and under plaintiff’s judicial allegation defendant was not willing to sell his real estate unless "the purchaser also bought his stock of merchandise.

In view of the faqt that Holland and Brown never had any conversation with Mr. Shaw on the. subject now in dispute and that in the only , conversation had on the subject between Moore and- Shaw, it was distinctly stated that Shaw would not sell unless he could sell his entine business, including his notes and accounts, we have been' unable to understand how the testimony of these three witnesses corroborate in any way Mr. Gill’s contention that defendant listed his property with him and agreed to pay a commission.

In our opinion this casé depends solely upon the question of whether or .not defendant listed his -property with plaintiff and agreed to pay him a commission. The only testimony on that point is the testimony of plaintiff, who swears positively that defendant did list his property with him, and defendant’s testimony, who swears just as positively that -he did not.

Plaintiff’s testimony, therefore, in our opinion, failed to discharge. the burden of . proof, which always, under the law, rests . upon the plaintiff.

•Defendant swore that he thought he was dealing with Mr: Gill as - the agent of the School Board, and the fact that .Mr. Gill submitted .through Mr...Moore to Holland and, Brown a ■■ proposition- to sell the real ; estate only, which,, he; does not now: contend lie had been authorized to submit, to some extent corroborates Mr. Shaw.

Under the evidence it is certain that in the conference in Mr. Gill’s office between (plaintiff, defendant and Mr. Moore it was definitely understood that Mr. Shaw would not sell his real estate without selling his business, including notes and accounts.

Mr. Gill, after being fully apprised of this fact, accepted a proposition from Mr. Shaw to sell seven acres .of the nine acres owned by Mr. Shaw for $4500.00, and attempted to complete the sale by submitting the proposition to. Holland and Brown through Mr. Moore.

This, in our opinion, was an acquiescence on the part of Mr. Gill in the contention of Mr. Shaw and corroborates Mr. Shaw’s contention.

The preponderance of the evidence, we think, fairly shows that defendant never intended to list his property with plaintiff or consent to pay him a commission.

Real estate brokers, as a rule, have on hand printed forms on which their customers list their property for sale, setting out fully the terms, conditions, commission, etc., and these forms should always be used as a protection to' both the broker and his customer. When a broker fails to use a written or printed form and depends upon a casual conversation, his claim for commission cannot be allowed except on clear and convincing proof fully discharging the burden of proof resting on the plaintiff.

For the above reasons, it is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and there is now judgment in favor of the defendant rejecting plaintiff’s demands and dismissing his suit at his cost.


text:
    No. 2777
    Second Circuit
    WEIKEL v. CADDO TRANSFER AND WAREHOUSE CO.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 8.
    In a' suit for damages, by a passenger injured in a collision while riding in a motor bus maintaining a regular schedule between Shreveport and Texarkana, proof by the plaintiff that the accident was caused by the bus being driven into a telephone pole on the left hand side of the road, at a speed of between 30 and 35 miles an hour, just after the motorman had exclaimed “look out”, constitutes a cause of action and renders it necessary for the defendant, in order to escape liability, to overcome the presumption arising from the accident under this state of facts.
    Stokes vs. Saltonstall, 13 Pet. 115. Sweeney vs. Erving, 228 U. S. 233.
    2. Louisiana Digest — Automobiles—Par. 8; Negligence — Par. 41.
    Suit by plaintiff, that while a passenger for hire on a motor bus, he was injured in an accident caused by the bus being driven into a telephone pole on the left hand side of the road, at a speed of between 30 and 35 miles an hour, after the motorman had exclaimed “look out”, warranted the application of the doctrine res ipsa loquitor to the extent of making it necessary for the defendant, in order to. escape liability, to overcome the presumption of negligence arising from the collision under the circumstances detailed.
    3. Louisiana Digest — Negligence—Par. 41.
    Defendant, who was in better position to know the cause of the accident than plaintiff, must, in order to overcome the prima facie case made for plaintiff by proof of the accident, show that the accident was not the result of any negligence on its part.
    Lykiardopoulas vs. N. 0. & C. R., L. & P. Co., 127 La. 309, 53 South. 575.
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo. Hon. E. P. Mills, Judge.
    Action by George R. Weikel against Caddo Transfer and Warehouse Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit to recover $5000.00 damages for injuries alleged to have been received by plaintiff in a motor bus belonging to defendant in which plaintiff was riding as a passenger for hire being driven into a telephone pole on the left hand side of the road at a rate of speed of between 30 and 35 miles an hour just after the motorman had exclaimed “look out”.

Plaintiff’s injuries consisted of a cut over the left eye which left a scar, and other cuts and bruises.

Defendant denied liability, and especially alleged that plaintiff did not undergo any unusual pain or suffering necessitating any continued medical treatment and that he was not seriously injured.

On these issues the case was tried and there was judgment in favor of the plaintiff for $350.00, and defendant appealed.

Plaintiff has answered the appeal and asks that the judgment be increased to $1,000.00.

OPINION.

The question for decision in this case is whether proof by the plaintiff that while he was a passenger for hire on a motor bus operated by defendant and maintaining a regular schedule between Shreveport and Texarkana he was injured in a wreck caused by the bus being driven into a telephone pole on the left hand side of the road at a speed of between 30 and 35 miles an hour just after the motorman had exclaimed “look out” is sufficient evidence of negligence on the part of defendant to warrant a judgment in favor of the plaintiff in the absence of any explanation by the defendant of' the cause of the accident tending to show that it was not the result of negligence on its part.

At the time of the accident the plaintiff was riding on a “jump” seat behind the seat on which the motorman was sitting. The motorman, therefore, was in better position to see the cause of the accident than the plaintiff and the motorman’s exclamation “look out” indicates that he did see the threatened cause of the accident before plaintiff or any other occupant of the bus did.

In ■ an ' able "and exhaustive brief defendant contends that the facts of this case do not warrant application of the doctrine of res ipsa loquitur; plaintiff claims that it is applicable and that it is decisive of this' case.

A leading case, in which the doctrine is fully discussed, is that of Stokes vs. Saltonstall, supra, where the court said:

“In an action against the owner of a stage-coach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting of the coach, the owner is not liable, unless the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage, in which he and his wife were passengers; and the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was carelessness or negligence or want of skill on the part of the driver; and throws upon the defendant the burden of proving that the accident was not occasioned- by the driver’s fault.”

And in Sweeney vs. Erving, supra, the Supreme Court of the United States, in reviewing the above case, said:

“In Stokes vs. Saltonstall, 13 Pet. 181, 190, (10 L. ed. 115, 121), which was an action against a stage-coach owner to recover damages for an injury sustained by a passenger through the upsetting of the coach, the trial court instructed the jury that ‘the facts that the carriage was upset and the plaintiff’s wife injured are prima facie evidence that there was carelessness or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident . was not occasioned by the driver’s fault’; and also that it was incumbent on the defendant to prove that the driver was a person of competent skill and good habits and that he. acted on the occasion in question ‘with reasonable skill, and with, the utmost prudence and caution’. The judgment was sustained by this court against the contention that although the facts of the-' overturning of the coach and the injury sustained were prima facie evidence of negligence, they did not throw upon the defendant the burden of proving that the overturning and injury were not occasioned by the driver’s default but only that the coachman was a person of competent skill in his business, that the coach was properly made, the horses steady, etc. A reading of the report shows that the case turned upon the high degree of care owing by the carrier to passenger, and that the court did not rule that the circumstances of the occurrence shifted the burden of proof upon the main issue. Such is the effect that has uniformly been given to the decision.

And the court, after citing many cases, proceeds:

“In our opinion,- res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well considered judicial opinions.”

Agreeably to the above authorities, we are convinced that the accident happened because of defendant's bus being run into a telephone pole on the left hand side of the road immediately after the motorman had exclaimed “look out” at a speed of between 30 and 35 miles an hour, warranted the lower court in rendering judgment against the defendant, in the absence of any evidence on the part of the defendant tending to show that the accident happened without its fault.’ The driver of the bus was in a better position to know the cause of the accident than the plaintiff, and his exclamation “look out” indicates that he saw and understood the. causes leading up to the accident before any other occupant of the bus.

This brings us to the quantum of damages.

We have carefully read the evidence, and while there is no disputing that plaintiff was injured painfully and seriously, yet the injury and pain were only temporary. He remained in a sanitarium for treatment only about an hour, and the only effect of the accident remaining is a slight scar over the left eye. Under all the evidence as to the extent of the injury caused by the accident we think the amount allowed by the lower court is correct.

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


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    No. 2637
    Second Circuit
    DEVOE AND RAYNOLDS COMPANY INC., v. JONES’ PHARMACY ET AL.
    (Dec. 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Laws—Par. 68, 69, 70.
    The “bulk purchase” law (Act 114 of 1912) does not bind a purchaser in violation of that1 act in • solido ■ with the seller for the latter’s debts to the value of the goods.sold, but only binds him as a receiver of the goods that came into his possession by such sale 'for the benefit of the creditors of the seller. Sec. 6 Act 114 of 1912.
    Keiffer Bros. Co. vs. Weavér,’ Ni. 956,
    Court of Appeal, Second Circuit, Jan. 20, 1922. (Not reported.)
    Appeal from the Fifth Judicial District Court of Louisiana, parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Devoe and Raynolds Company, Inc., against Jones’ Pharmacy, and the Guenard-Lucas-Almond Drug Company, Inc.
    There was judgment for plaintiff and the Guenard-Lucas-Almond Drug Co., Inc., appealed.
    Judgment reversed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    Warren Hunt, of Rayville, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sued C. C. Jones, doing business under the trade name of Jones’ Pharmacy, and GuenardLucas-Almond Drug Company, Incorporated, and prayed for judgment against them in solido for $201.99 for goods .sold by the plaintiff to C. C. Jones.

It alleged that Guenard-Lucas-Almond Drug Company, Incorporated, was liable to it in solido with C. C. Jones for the amount because it had bought from its co-defendant his stock of merchandise in bulk without previously complying with the provisions of Act 114 of 1912.'

C. C. Jones filed an exception to the jurisdiction of the court rationae personae and it was sustained and no appeal has been taken from that ruling.

Guenard-Lucas-Almond Drug Company, Incorporated, filed an exception of no cause of action. This exception was overruled and judgment rendered against it in favor of plaintiff for the amount owing to plaintiff by C. C. Jones. From this judgment Guenard-Lucas-Almond Drug Company, Incorporated, appealed.

OPINION. .

The sole question presented for determination in this case is wheiher GuenardLucas-Almond Drug Company, Incorporated’s, exception of no cause of action should have been sustained.

Plaintiff alleged that that company is liable for the debt owing by C. C. Jones to it solely because it bought his stock of merchandise in bulk without having complied with the requirements of Act 114 of 1912.

That act does not make a purchaser of a stock of merchandise in bulk in violation of its provisions liable in solido with the seller to his creditors for his debts but only liable as receiver of the property and as such accountable to the creditors of the seller for the value of the goods so received.

In support of his position plaintiff’s counsel contends that—

"Some two or three years back the Court of Appeal in a case appealed from Caldwell parish held that the purchaser and the seller were liable in solido for the debts of the seller where the bulk sales law had not been complied with. T do not happen to have a copy of that decision nor the style of it at this time.”

We have examined the decision referred to, namely: Keiffer Bros, Co. vs. J. A. Weaver, No. 956, on the docket of this court, decided January 20, 1922, and not reported, and quote therefrom as follows:

“The Supreme Court has never passed upon the above Act so far as the point here presented is involved, and it becomes necessary for this court to interpret it for the first time. It is contended on behalf of the defendant that the purpose of the Act was, in addition to making the sale of goods under certain circumstances a criminal offense, to afford creditors an additional remedy by which they could pursue a certain designated class of property of a defaulting debtor into the hands of third persons, and subject that property to the payment of their claims.

“We think it was the purpose of the legislature to make the sale of a stock of merchandise in bulk, except upon the conditions stated in the act, dangerous and hence unpopular, and the means adopted were, first, to make such a sale a crime.' It was probably foreseen that in many instances it would be difficult to secure prosecutions against the seller, and, as an additional means to the end in view, it was provided that the purchaser should; in the event of his failure to comply with the provisions of the law applicable to him, become the. representative of the seller and liable to the creditors of his vendor to the extent of the value of the goods.

“If he is to be regarded as a receiver in the sense in which that word is used in regular insolvency proceedings (which we think was evidently' the purpose of the law maker) then there is no reason for requiring the debtor to be made a party to the action expressly given by the statute.

“No injury can be done to any one. The plaintiff, of course, would have to prove the account, just as if the suit was against his original debtor, and all of the defenses available to the original debtor can, and doubtless will, be made by the defendants here.

“We do not think that a personal judgment can be rendered against the defendant beyond the value of the goods, or in other words, beyond the plain provisions of the statute.”

In view of this decision and the plain terms of the act in question we do not ■ think Guenard-Lucas-Almond Drug Company, Incorporated, is liable in solido with C. C. Jones for the amount of the latter’s debt to plaintiff.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, that Guenard-Lucas-Almond Drug Company, Incorporated’s, exception of no cause of action be sustained and plaintiff’s suit as to it dismissed. Plaintiff to pay all costs.


text:
    No. 2809
    Second Circuit
    J. B. COLT CO. v. WILLHITE
    (Dec. 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Diges&wkey;Appeal — Par. 625.
    The finding of the District Judge on an issue of fact will not be disturbed on appeal unless manifestly erroneous. i La. App. (Index, verbo Appeal.)
    Appeal from the Fourth Judicial District Court of Louisiana,' Parish of Ouachita. Hon Percy Sandel, Judge.
    Action by J. B. Colt Co. against William W. Willhite.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed1.
    Robert Layton, W. F. Pipes, of Monroe, attorneys for plaintiff, appellant.
    Hugh T. Layne, of Monroe, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit on a promissory note alleged to have been lost.

Defendant admits signing the note and pleads payment.

On these issues the case was tried and there was judgment for defendant and plaintiff appealed.

OPINION..

In this case plaintiff sues upon a promissory note and claims to have lost it. Defendant swears postively that he paid the note in full and received it back from plaintiff through the United States mail marked “paid”. He is corroborated in this statement by his brother, John, who testifies that he was with defendant at the time he got his mail out of the mail box and that he remembers the entire transaction.

The trial judge who saw the witnesses and heard theih testify gave judgment in favor of the defendant. We think his judginent is ■ correct and it is - therefore affirmed.


text:
    No. 2109
    Second Circuit
    BANK OF WINNFIELD v. CITIZENS BANK OF CAMPTI
    (December 11, 1926. Opinion and Decree.)

      {Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 53, 351.
    The plaintiff carries the burden of establishing by a fair preponderance of the evidence the essential allegations of his petition.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge.
    ‘ Action by the Bank of Winnfield against the Citizens Bank of Campti.
    ■ There was judgment'.for defendant and plaintiff appealed.
    Plaintiff’s suit dismissed as of non-suit.
    Wallace, Lyons and Peters, of Winnfield, attorneys for plaintiff, appellant.
    Breazeale and Breazeale, of Natchitoches, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, a banking corporation domiciled in Winn parish, Louisiana, sues the defendant, a banking corporation domiciled in Natchitoches parish, Louisiana, alleging that, on August 27, 1920,' the ' Perfection Curing Company, Incorporated, requested it to cash a draft drawn by that company on the Citizens Bank of ’ Campti for $994.82, payable to plaintiff at sight, and dated August 27, 1920, and that it called defendant on the telephone and was, assured by its president that the draft would be paid on presentation and that it thereupon paid the amount to. the Perfection Curing Company, Incorporated, and, on August 29, 1920, forwarded the draft to the defendant who received it not later than September 2, 1920, and that it was the duty of the defendant to return the draft within twenty-four hours after its receipt and that it neglected to return it until September 9, 1920, the draft reaching plaintiff on September 11, 1920, and that by its conduct the defendant accepted the draft and is bound as an acceptor for the amount thereof.

\ It is also alleged that the neglect of defendant to return the draft promptly de- . prived plaintiff of any opportunity it might ; have had to collect the amount from the ; drawer.

; And it is further alleged that the draft [ in its progress from plaintiff to defendant J passed through the Federal Reserve Bank ! of Dallas, Texas, and thereby became a ; foreign bill, and that the defendant neg- [ leeted to have the draft protested and in j consequence the drawer and endorsers of the draft became discharged from liability thereunder and defendant became liable to plaintiff for the amount of the draft.

And plaintiff asks for judgment against defendant for $994.82 with legal interest thereon from September 2, 1920.

Defendant denied- the allegations of the petition and alleged “that it had no dealings with Perfection Curing Co.; carried no account for it or with it; had no deposit for it and there was no authority in its president or other ¡person to bind respondent and it, was. under no obligation to bind itself for the debt of said Curing Co.”

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and it has appealed.

OPINION

Defendant, through counsel, made the following judicial admission.

“In this case, it is admitted by the defendant that the draft described in paragraph 3 of the petition, was received by it on September 2, 1920; from the Commercial National Bank of Shreveport, Louisiana, and' that the said defendant returned said draft to the aforesaid bank on September 9, 1920, as. requested by its sender. This admission is merely to admit the fact of sending and returning the draft and shall not be considered as holding defendant' bank liable for the debt sued on nor as estopping defendant in any way in the defenses pleaded in the answer.”.

This admission placed liability on-defendant, under Sections 126 and 137 of the Negotiable . instruments Law, for failure to return the. draft within twenty-four hours after-receiving it, and, under proper allegations, defendant would be compelled to pay it, unless the testimony of E. C. ' Reidheimer overcome.s the effect. of. the admission, on-which question we express no opinion as we find it unnecessary to do so under the issues "before us. This testimony is as follows:

“Q. Please . examine document 2 . being the- check _ attached to the petition and state according ' to your best recollection, and' the figures endorsed thereon, 'if you promptly returned the check’ror not?

“Á. I never saw the check, and my records do not show that the check was handled through the Federal Bank of Texas. I am under the impression that it was immediately returned. -That is my handwriting .on the back, all my handwriting. 1

" . ’ * sjc *

“Q. Tour custom is to return checks immediately?

“A. Yes, sir, and especially when it comes in a letter with other checks, and that check undoubtedly came in a letter with a bunch of other checks, at that time, all checks were handled through the Federal Reserve Bank in 1920, a check on the Natchitoches Bank would go to the Dallas Bank and come back to me through the Dallas Bank.

“Q. And you feel sure from the indorsement in your handwriting the words ‘No Account’ on the- back of the draft, that it was returned immediately?

“A. Yes, sir.”

Plaintiff, . in Articles 5 and 10 of its petition, alleged:

"That thereupon the said Bank of Winnfield paid the said draft by delivering to the said Perfection Curing Company, Incor^ porated, ■ the sum of nine hundred ninety-four and 82-100 ($994.82) dollars and then remitted, on August 29, 1920, the said draft in due course, as a cash item, to the said Citizens Bank of Campti, Louisiana.

“That at the time the draft was received by the' Bank of Winnfield from said Citizens Bank, it made every reasonable and diligent effort to collect the draft from the said Perfection Curing Company, Incorporated, but was unable to do so.”

Proof of the correctness of these allegations, we think, is essential- in order for plaintiff to establish the fact that it had a real interest which it pursued, and such proof, we think, was essential to plaintiff’s right to recover. Plaintiff having failed to introduce any evidence on this point, its demand should have been dismissed as in case of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended, and that plaintiff’s demand be dismissed as in case of non-suit. The costs of the lower court to be paid by plaintiff; those of this court to be paid by defendant.


text:
    No. 2806
    Second Circuit
    GORDON v. GREER OSBORNE, Intervenor
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    YJhere the question involved is one of fact, the finding of the judge a qua will not be disturbed unless manifestly erroneous.
    Cunningham vs. Middleton, 4 La. App. 642.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Mrs. Annie Moore Gordon against Y. G. Greer. Clay Osborne, Intervenor.
    There was judgment in favor of plaintiff by default and recognizing intervenor’s claim in part.
    Plaintiff appealed.
    Judgment amended and affirmed.
    John M. Munholland, of Rayville, attorney for plaintiff, appellant.
    Warren Hunt, of Rayville, attorney for intervenor, appellee.
    George Wesley Smith, of Rayville, attorney for defendant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sued defendant on a rent note given by him to her for $500.00, dated January 1, 1925, payable to her order on September 15, 1925, bearing eight per cent per annum interest from its maturity until paid and stipulating payment of ten per cent attorney’s fees if placed in the hands .of an attorney for collection.

In aid of her suit she obtained the issuance of a writ of provisional seizure in virtue of which the sheriff seized certain growing crops and other movables.

Clay Osborne intervened in the suit and claimed ownership of one mule and two cows and two calves seized. He claimed to have purchased the cows and calves from defendant in good faith and to have paid him for them and also in good faith to have exchanged defendant a horse for the mule. He asked for judgment recognizing his ownership of the animals and for damages for their illegal seizure.

Plaintiff answered the intervention and denied intervenor’s claims and alleged, in the alternative, that if there had been a transfer of the animals from defendant to intervenor as alleged it was fraudulent and the result of a fraudulent conspiracy between defendant and intervenor to shield the animals from seizure and sale by plaintiff for her rent, and she prayed that the transfer be declared fraudulent and void. She also asked for damages against intervenor for fraudulent conspiracy.

. On these issues the case was tried and there was judgment against the defendant and in favor of the plaintiff by default for $500.00 with 8 per cent per annum interest thereon from September 15, 1925, less a credit of $218.24, as of date October 1, 1925, net proceeds of seized property sold, with recognition of plaintiff’s lessor’s privilege on all the property seized, except the mule claimed by intervenor.

On the intervention, there was judgment in favor of the intervenor for the mule, but rejecting his claim for the two cows and calves.

Prom this judgment plaintiff appealed. Intervenor did not appeal nor has he asked for an amendment of the judgment in this court.

OPINION

As the intervenor has not appealed nor asked for an amendment of the judgment by this court, th<j judgment, insofar as it is against him, must remain unchanged.

The evidence shows that about forty-five days before the seizure the defendant and the intervenor entered into a contract of exchange whereby the intervenor traded the defendant a horse for the mule claimed.

Transfer of possession of the animals was made at the time of the exchange, and the intervenor had worked the mule in his own field during the forty-five days preceding the seizure.

It is not contended by plaintiff that the horse given by defendant was of less value than the mule received by him, and a fair exchange having taken place the plaintiff • was not injured thereby and has no right to complain.

The trial judge who heard the witnesses testify and observed their demeanor on the witness stand decided that the mule belonged to intervenor. Under all the evidence we think that finding correct.

Both plaintiff and intervenor seem to have been in error as to their respective rights; the plaintiff in seizing intervenor’s mule, and the intervenor in attempting to deprive plaintiff of her lessor’s privilege on the two cows and two calves.

Their respective claims for damages mutually set each other off and were properly rejected.

Plaintiff complains that the judgment failed to allow her ten per cent attorney’s fees on her debt as stipulated for in the note. She is entitled to have the judgment corrected so as to allow these.

For the above reasons, it is ordered, adjudged and decreed that the judgment appealed from be amended, and it is now ordered, adjudged and decreed. that there be judgment in favor of the plaintiff, Mrs. Annie Moore Gordon, and against the defendant, Y. G. Greer, in the sum of five hundred dollars, with interest thereon at the rate of eight per cent per annum from September 15, 1925, until paid, and ten per cent on the amount of principal and interest as attorney’s fees, less a credit of two hundred and eighteen and 24-100 dollars as of date October. 1, 1925, with recognition of plaintiff’s lessor’s ■ lien and privilege on all the property seized under the writ of provisional seizure, except the mule, which is decreed to be the property of the intervenor, Clay Osborne, and not subject to seizure. That the writ of 'provisional seizure he sustained on all the property seized, except the mule, and that said property be sold by the sheriff for the satisfaction of this judgment and that out of the proceeds of sale the plaintiff be paid by preference and priority. .

It is further, ordered, adjudged and decreed that the intervention be sustained insofar as the mule therein claimed is concerned and that intervenor be decreed to be the owner and entitled to the possession of the mule, but that in all other respects intervenor’s 'demands be rejected. The defendant to pay all the costs of the suit.

And, as thus amended, the judgment appealed from is affirmed.