author: CLAIBORNE, J.

text:
    No. 9656.
    Orleans Appeal.
    CELESTE CHISOLM v. L. ROPPOLO, Appellant.
    (May 11, 1925, Opinion and Decree.)
    (May 22, 1925, Petition for Rehearing.)
    (June 18, 1925, Rehearing Refused.)
    (July 13, 1925, Decree Supreme Court Writ Denied.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 630.
    This Court will set aside the verdict of a jury upon questions of fact when the verdict appears contrary to the' evidence and manifestly erroneous.
    Appeal from Civil District Court, Hon. Sam A. LeBlanc, Judge.
    This is a damage suit resulting from the falling of a smoke stack.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed.
    Frank S. Norman, attorney for plaintiff and appellee.
    Meyer S. Dreifus and H. S. Levy, MeLoughlin & West, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a damage suit resulting from the falling of a smoke stack.

The plaintiff alleged that on August 27, 1924, while she was in the back yard of her home, 2014 Fourth Street, taking in clothes from the line", she was struck by a falling smoke stack which was on the property 2715 S. Rampart Street, operated by the defendant as a bakery, and while the defendant and his employees were in the act of repairing said smoke stack; that she received severe injuries to her head, back, and right arm and was confined to her bed for four weeks suffering much pain, and was unable to circulate for two months and is still suffering and fears her injuries are permanent; that her injuries were caused by tbe negligence of tbe defendant and his employees; she claims $50 for doctor and drug bills, $2,000 for past suffering, and $3,000 for future suffering.

The defendant admitted that he was operating the bakery No. 2715 S. Rampart Street, and that he was in the possession and control of the property and that the smoke stack was under the control of persons repairing the roof of the property occupied and operated by him, but denied all the other allegations of the petition.

There was a verdict and judgment in favor of the plaintiff for $1,050 and the defendant has appealed.

The plaintiff’s case is supported by the testimony of herself and of 1st her father, George Chisolm, and of her mother, Celeste Chisolm.

The plaintiff testifies:

“I was standing in the yard in a stooping position taking up clothes. * * * A smoke stack fell into our yard and I was struck by it. * * * I heard a crash, and I found out afterwards what happened.”

All three testified that the accident happened between two and three o’clock in the afternoon.

Her father testified:

“I was doing some repairs to the fence, stripping and joining together the boards when I looked up and saw the stack falling. Celeste was stooping down to the ground, like she was picking up clothes from .the ground -and the stack hit her and knocked her over, towards the fence, and I called my wife and said: ‘Look here, Celeste is dead out here’, and me and my wife picked her up and give her first aid. * * * She was knocked out, speechless.”
“Q. And how long did she lie there before you picked her' up?
“A. Just as quick as my wife come we picked her up and took her in the house.”

Her mother testified that she was present when the accident occurred; she was in her kitchen door, she saw the stack fall; her daughter was standing in the center of the back yard, in a stooping position to pick up some clothes that fell on the grass; she heard the crash and saw the stack fall and hit the girl and knocked her unconscious; she and her husband came to the rescue and brought her inside and rendered her first aid.

After reading the testimony on behalf of defendant we come to the conclusion that he has successfully contradicted the testimony in behalf of the plaintiff, and that the preponderance of proof is absolutely and completely in favor of defendant.

The first witness for defendant is William Werling, a cabinet and screen maker and carpenter; on the date of the accident he was working for the defendant repairing the roof; he was in the yard at the time of the accident and saw the smoke stack fall.

The second witness was Clarence Brandon, manufacturer of screened doors; at the time of the accident he was working for defendant repairing his roof; he heard a noise and looked up and saw the stack going over; he hallowed: “Look out below”, and went to the edge of the roof and saw the stack fall in plaintiff’s yard.

The third witness was William Tank, an oven builder employed by defendant on the date of the accident to put up an oven for defendant; some one shouted “look out” and by the time he looked he saw the stack fall in the yard.

These three witnesses, entirely disinterested and worthy of belief, testify that at the time the stack fell there was no one in the yard except the plaintiff and her father, and that they were both standing near the kitchen door looking on, free from any injury; one of them testified: “I saw two people in the yard; this lady was in the yard (pointing to plaintiff) and a colored man she called father.” Werling and Brandon testify that the father said that the stack came near hitting the girl.

Tank testified:

“Q. And did you see anything in the yard at the time?
A. Yes, sir, two people.
Q. Who were they?
A. One was a man and the other was a woman, or a young girl.
■Q. White or colored?
A. Colored, both of them.
Q. Would you recognize her if you saw her?
A. I think I can; I think that is the lady right there.
Q. Where?
A. Right behind you (pointing to the plaintiff.”

The plaintiff and her- father and mother testify that the accident happened between two and three in the evening. The three witnesses above named unanimously swear that the accident happened between eleven and twelve in the morning.

They are certain of that hour because they had not yet taken their lunch.

The defendant testified himself that he was engaged wrapping bread in his bakery when the stack fell; that he immediately hurried to the plaintiff’s yard in company with the three witnesses above named and that when he got there the plaintiff and her father were standing up near the kitchen immune, and that the plaintiff’s father said to him that the stack nearly fell upon his daughter.

He 'also testified that the accident happened between 11 and 12 in the morning. He was wrapping bread for delivery, and bread is not delivered after 3 p. m.

But assuming that the plaintiff’s father did not say to the defendant that it was fortunate that the stack had not fallen upon his daughter, one- thing is certain, and that is, that immediately after the fall of the stack, defendant and his three witnesses proceeded from his bakery to the plaintiff’s yard and there saw the plaintiff and her father standing looking at the stack, and that neither one nor the .other said that the' plaintiff had been hurt, and that it was only at about 5 o’clock that the plaintiff’s father went over to Rappolo’s and asked him what he was going to do about the injury to his daughter.

We are aware of the jurisprudence that attaches such importance to the finding of a jury upon questions of fact, that appellate courts may not reverse their verdict unless manifestly erroneous. But this rule is not inflexible. We read in 1 H. D., p. 92, the following:

“As the Supreme Court possesses the right and is under the obligation of examining questions of fact as well as those of law, and as it is not provided with a jury, it is sometimes its duty, to pronounce upon a question of fact, in direct opposition to the-verdict of a jury; otherwise there might be cases in which suitors could not be relieved from erroneous decisions below. And where the Supreme Court entertains no doubt upon the evidence, which is sufficient to do justice between the parties, the case will not be remanded but be decided in direct opposition to the verdict or judgment in the Lower Court. So, where the damages assessed by the jury are excessive, they will be reduced.” Quoting numerous authorities. Dalferes vs. Maurin, 49 La. Ann. 335, 21 South. 517; 1 La. Dig. §630.

In the case of Von Eye vs. Byrnes, 124 La. 769, 50 South. 708, the court said, on p. 773:

“Our appellate jurisdiction over the facts of the case compels us to reverse verdicts and judgments, when they are clearly against the preponderance of the evidence. The same jurisdiction and the mandate of the Code of Practice compel us to render such judgment as should have been rendered below.” Louisiana Western R. Co. vs. Louisiana Cent. Land & I. Co., 119 La. 928, 44 South. 732; Opelousas Gulf & N. E. Ry. Co. vs. St. Landry Cotton Oil Co., 121 La. 796, 46 South. 810; Louisiana Ry. & Navigation Co. vs. Sarpy, 125 La. 388, 51 South. 433; Boon vs. O'Neal, 33 La. Ann. 1190; Johnston vs. Barrett, 36 La. Ann. 320; Western Assur. Co. vs. Uhlhorn, 41 La. Ann. 385, 6 South. 485; Griffin vs. Shreveport & A. R. Co., 41 La. Ann. 808, 6 South. 624; Hayden vs. Slaughter, 43 La. Ann. 388, 8 South. 919; Texas & P. Ry. Co. vs. Southern Development Co., 52 La. Ann. 538, 27 South. 101; 8 Orl. App. 157-346, 9 Orl App. 3, 2 N. S. 653; Sloo vs. Tarbe, 9 La. 522; Von Eye vs. Byrnes, 124 La. 769, 50 South. 708.

The same presumption of correctness as to law and facts applies to judgments of Courts unassisted by a jury, yet these judgments are reversed daily by the Appellate Courts on questions of fact. Boon vs. O’Neal, 33 La. Ann. 1190; Western Assur. Co. vs. Uhlhorn, 41 La. Ann. 385, 6 South. 485; 1 La. Dig., par. 634.

But in this case we cannot conceive'how the jury could have believed the testimony of the plaintiff and of her father and mother, all three eminently interested witnesses, and could have disregarded the evidence of defendant flowing from the lips of disinterested witnesses. There could have been but one conclusion and that was that the legal preponderance of testimony was with the defendant; Cofield vs. Black Lake Lumber Co., 123 La. 944, 49 South. 650; De St. Romes vs. Carondelet Canal & Navigation Co., 24 La. Ann. 332; Lykiardopoulo vs. New Orleans & C. R., Light & Power Co., 127 La. 316, 53 South. 575; Brown vs. Green, 132 La. 1089, 62 South. 154.

The jury was perhaps influenced by the Judge’s charge to the following effect:

“If a witness is absent whose testimony might be considered as having an important bearing on the case, unless his absence is explained to your satisfaction, the law creates a presumption that that witness would have sworn unfavorably to that party his testimony might be considered relating to. If proper explanation has been made on the witness stand of such absence then you are to disregard that presumption.”

It seems that the defendant at the suggestion of plaintiff’s father that his daughter had been injured by the falling stack had sent Dr. Watson to call on the plaintiff. The doctor called upon her but made no examination; merely stated that he would consult with Dr. Brazier who was treating her. On the trial of the case the defendant did not summon Dr. Watson. He called upon him in the morning to request his presence in court, when he was informed that the Doctor was absent from the city.

The plaintiff in his argument invoked the rule applied by the Judge. But while under peculiar circumstances the rule is good law, it has no application here. The worst that could have been said was that the Doctor saw the plaintiff sick in bed, suffering from all the ailments she complained of. But Dr. Brazier had already testified to these and they play no part in this opinion. Dr. Watson knew nothing of the fall of the stack nor that it had fallen upon plaintiff, and therefore there was nothing which the defendant could have concealed by the Doctor’s absence.

It is therefore ordered that the judgment herein be reversed and set aside and that there now be judgment in favor of defendant rejecting plaintiff’s demand at her cost in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 9871.
    Orleans Appeal.
    MRS. BERTHA KAUFMAN STERN v. YELLOW CAB COMPANY, INC., Appellant.
    (May 11, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par. 221, 225.
    Under Ordinance C. C. S. 7490 vehicles traveling upon a street upon which there are street car tracks have the right of way; and it is the duty of all vehicles approaching said street from intersecting streets before crossing the same to come to a full stop.
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a damage suit resulting from a collision of automobiles. There was judgment for plaintiff for $284.00 and against defendant dismissing its reconvention demand. Defendant appealed.
    Judgment affirmed.
    Gordon Boswell & Milo Williams, attorneys for Plaintiff and Appellee.
    John P. Sullivan, Dave Sessler, attorneys for Defendant and Appellant.
   CLAIBORNE, J.

This is a damage suit resulting from a collision of automobiles.

The plaintiff alleged that on December 7th, 1923, at about 7 o’clock P. M., her chauffeur was driving her automobile down Freret Street in the direction of Canal Street; that when she reached Robert Street, a taxi-cab driving towards the Lake struck the right side of her automobile and pushed it out of its course and caused it to run upon the sidewalk of down-town lake corner of Freret and Robert Streets and against the corner building; that as a result of said collision plaintiff’s car was damaged to the extent of $284, and she was deprived of the use of her car at an expense of $10; that there was a street car track upon said Freret Street; that by Ordinance 7490 of the City Council vehicles traveling upon said street had the right of way, and that it was made the duty of all vehicles approaching said street from intersecting streets before crossing the same to come to a full stop; that the defendant was traveling at a rapid rate and failed to stop before crossing the intersection and by reason thereof was negligent and caused the damage.

Defendant denied each allegation of plaintiff’s petition except the collision, but specifically averred that it occurred through the negligence of plaintiff’s chauffeur, who was driving at an excessive rate of speed.

And assuming the character of plaintiff in reconvention the defendant claimed $239.47 and alleged that when its taxicab reached the corner of Robert and Freret Streets, it was struck by the plaintiff’s car and damaged to the extent of $119.47 and was laid up for repairs for six days at a loss of $20 a day or $120.00.

There was judgment for plaintiff for $284.00 and against defendant dismissing its reconventional demand.

From this judgment the defendant has appealed.

The admitted facts are that the plaintiff’s car was driving down Freret Street in the direction of Canal Street; that there are two car tracks on that street and that plaintiff was driving down the track nearest the River; and that Ordinance 7490 gives vehicles traveling on such streets the right of way and makes it the duty of all • vehicles approaching said street to stop before crossing it.

It is also established that defendant’s cab was running down Robert Street in the direction of the Lake and that when it reached the intersection of Freret Street its cab collided with plaintiff’s car.

The mooted questions are: First, who ran into the other; and second, whose fault was it.

First. The evidence leaves no doubt in our minds that the defendant’s cab ran into the plaintiff’s car.

Plaintiff’s chauffeur swears to it.

John Williams, an eye .witness, swears to it.

Louis McLaughlin, a mechanic who repaired the car afjer the collision, testifies that the whole right side of the car was dented and had a hole in it in the back of the car and the right rear fender was bent, all smashed in, and the tire carrier in the back of the car; and the handle on the lock was broken.

It is true that two witnesses for the defense testify that the car' ran into the cab,— viz., Mrs. Delaossa and Dexter Williams. The testimony of the former is impossible to believe. She says that when the cab reached Freret Street it stopped within one foot of the car track, and that plaintiff’s car then swerved towards the cab on the right “and it was traveling in the car rails going downtown, and on swerving he hit the cab, and as it hit the cab, it ran the cab ten feet along the- car rails; it changed the direction of the cab. turning the cab down the Freret car tracks towards Canal Street, and etc.”

The manner of the accident as described by this witness is impossible, if the cab had stopped before it reached the track, it was impossible for the par which was running upon the track to have struck the cab, which was not upon the track, but ■ one foot away from it.

The next witness is Dexter Williams. His testimony shows that he is not certain of what he swears to. He cannot say whether the cab stopped ór not; ' all he knows is that he heard brakes squeak, ana he imagined by that that the cab stopped; he saw plaintiff’s car in the car track when it hit the defendant’s cah; he did not see plaintiff’s car turn to the right.

The weight of the evidence is that defendant’s cab hit plaintiff’s car.

Second. The plaintiff’s chauffeur swears that he did not see defendant’s cab until it ran into him. ■

Williams swears that the defendant did not stop.

Charles F. Fletchinger, a member of the bar, testified that the defendant’s chauffeur stated, immediately after the accident: “That he was going between 15 and 18 miles an hour when he reached Freret Street.”

P. J. Kelly, Jr., testified as follows: “We asked the chauffeur of the taxicab about what rate of speed he approached Freret Street. He said, he was going about 18 miles an hour,” and we also asked him if he knew there was a car line on Freret Street, and he said he did not.”

We consider it established, therefore, that the defendant did not stop.

The chauffeur of the taxi', Hill, did not testify. On the date of the trial he had left defendant’s employ and the defendant could not find him to summon him.

There had been a strike of .defendant’s chauffeurs.

A. The regularly employed taxicab drivers quit their jobs.
Q. And you filled their positions with other men?
A. Yes, sir.
Q. And Hill was one of those other men?
A. Yes, sir.

Second. Whose fault was it?

It would practically make no difference who ran into the other. The plaintiff had the right of way. She reached the intersection first, for the collision took place near the downtown corner of Robert Street and near the River side of Freret Street, just as the defendant was reaching the intersection.

But the evidence oí plaintiff’s own witness, Mrs. Delaossa, is that one standing on Robert Street 30 feet from Freret, can see one whole block' up Freret Street up to Soniat Street without obstruction. When defendant reached Freret Street, he should have stopped, looked and listened; if he had done so, he would have seen the plaintiff coming down. As the plaintiff had the right of way, she had a right to presume, even if she saw the defendant, that he would stop and grant her the right of way. The defendant violated the ordinance and, in accordance with the jurisprudence of this Court, it must stand the consequences. There is no evidence that the plaintiff could have avoided the accident.

Judgment affirmed.


author: BELL, J.

text:
    No. 9995.
    Orleans Appeal.
    MARY KILBOURNE v. LIFE & CASUALTY INSURANCE CO. OF TENNESSEE, Appellant.
    (May 11, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 80.
    Where the defense to a suit brought within one year from date of a life insurance policy, is that the policy has been forfeited, except as to right of recovering premiums paid thereon, because the assured “had, before the date of the policy, disease of the heart”, a plea of estoppel urged by plaintiff as beneficiary, is well founded and properly maintained, when it is shown that no misrepresentations were made by as- ■ sured, and that he was not even required by defendant’s authorized agent to make out or sign any application for the insurance covered by the policy; nor was he required to submit to medical examination. (Act 97 of 1908.)
    2. Louisiana Digest — Appeal—Par. 512.
    Where an appeal is plainly taken only for delays, motion for damages for frivolous appeal will be allowed.
    Appeal from the First City Court of New Orleans, Sec. “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit on a life insurance policy.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed, with damages for frivolous appeal.
    John J. Reilly, attorney for plaintiff and appellee.
    Frederick E. Querens, attorney for defendant and appellant.
   BELL, J.

The plaintiff, as named beneficiary under Policy No. U-3844262, issued August 27, 1923, by the Life and Casualty Insurance Company of Tennessee, upon the life of plaintiff’s brother, Albert Johnson, sues the defendant company, alleging that Johnson, the assured, died in Bogalusa on the 3rd day of May, 1924; that under the terms of the policy, she, as beneficiary, is entitled to recover the sum of $200.00, for which amount she has made amicable demand, after filing with defendant notice and proof of the assured’s death; that defendant has refused her claim on the ground that the assured was, at the date of the policy, afflicted with heart disease. Denying that the assured died under such conditions, plaintiff alleges and pleads that the defendant is estopped- from pleading forfeiture on such grounds, because of its action and conduct in issuing the policy, which plaintiff has annexed to and made part of the petition.

Defendant answers by admitting issuance of the policy sued upon and that all premiums due thereon up to date of assured’s death have been paid. It denies, however, any liability under the policy by alleging that the assured signed a written application, in which certain declarations were made, the reliance upon which caused defendant to issue the policy; that when said application was signed and delivered to defendant, the assured was then afflicted with, a chronic disease affecting the heart, and that of this fact the assured had full knowledge before applying for insurance, and that he fraudulently withheld such knowledge from the defendant; that defendant learned about this fact, and that it had been thus deceived and defrauded only after the death of the assured.. Admitting its liability for paid premiums, for which it offers restitution to plaintiff, defendant prays for judgment cancelling the policy and dismissing it from all other liability thereunder.

The evidence shows that the beneficiary under the policy, who is plaintiff in this suit, and who resides in New Orleans, was induced by defendant’s authorized solicitor and agent to take out the policy on the life of her brother, then living or working in Bogalusa, Louisiana. Plaintiff swears that no written application for this insurance, nor any statement, verbal or written, was ever required of either the plaintiff or the assured as to the condition of the latter’s health, and that on the simple payment- of fifty cents by plaintiff to the agent, the policy was issued. Defendant has failed to produce the written application referred to in its answer as having been signed and delivered to it by the assured. It. also failed at the trial to produce the agent who wrote the policy, and only offered to do this when applying for a new trial, which was properly refused, after judgment was pronounced against it. Due proof of death was shown to have been filed by plaintiff and received by defendant. No competent evidence has been offered by defendant to establish its reasons for refusing payment of the claim or that the assured did in fact die of heart disease, or that he was suffering from such disease before or at the date of issuing the policy.

A clause in the policy provides, in part, as follows:

“LIMITATION OP INSURANCE: Within one year from date of issuance of this policy, the liability of the company under same shall be limited under the following conditions to the return of the premium paid thereon; * * * (2) If the insured, before its date, .has been rejected for insurance by this or any other Company, Order or Association, or has been attended by a physician for any serious disease or complaint, or has had before its date any pulmonary disease or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys.”

We are of the opinion that even had evidence been offered to establish facts justifying forfeiture of the policy under the provisions of the clause just quoted, defendant would be estopped from pleading such forfeiture, because of its unqualified assumption of the risk, as shown by its contract, without requiring any information, medical or otherwise, which it could have reasonably obtained in respect to the health, habits, etc., of the assured.

We conclude that Act 97 of 1908 justifies the plea of estoppel here urged and has full application to the facts and conditions arising in the instant case. The Act in question provides that under certain conditions, all life, health and accident insurance companies which issue policies or contracts of insurance to the insured without medical examination by a physician, shall waive their rights to claim forfeiture ■for misrepresentation.

Appellee has answered the appeal, alleging that same is frivolous and has been taken only for delays.

While examination of defendant’s pleadings in this case, might justify the belief that a serious defense has been offered to plaintiff’s suit, the trial of this case, in respect to the defense there presented, and as shown by the record, leads us to a contrary conclusion. We are forced to believe that the appeal has been taken in this case solely for delays and is, therefore, frivolous, and we accordingly grant to appellee the motion made in this court for ten per cent damages on $200.00, the value of the amount in dispute, or the sum of $20.00.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed at defendant’s costs in both courts.

It is further ordered that there be judgment in favor of plaintiff against the defendant in the further sum of Twenty Dollars ($20.00), as damages for frivolous appeal.


text:
    No. 10,004.
    Orleans Appeal.
    E. M. REYNES, Appellant, v. VITO ASARO.
    (May 11, 1925 Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact being evidently correct is affirmed.
    Appeal from the First City Court of New Orleans, Sec, “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit to recover commission for services in supervising the erection of defendant’s building.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Theo. Cotonio, Attorney for Plaintiff and Appellant.
    W. Marinoni, Jr., Attorney for Defendant and Appellee.
   BELL, J.

Plaintiff sues defendant, under an alleged verbal contract, for • $138.50, as commission for services in supervising the erection of defendant’s building, No. 3700-3703 Dumaine Street, New Orleans. From a judgment of non-suit, he appeals.

It is averred in the petition that defendant and Nick Ascani, a contractor, having entered into a building contract, dated July 14, 1924, for erection of th,e above building, that plaintiff was named as expert, and that it was agreed and stipulated verbally between plaintiff and defendant, that the former was to receive one per cent of the contract price of the building ($13,850.00), or the amount now sued upon, $138.50; that the consideration for this commission or fee was that plaintiff should render service in seeing that the building was erected in accordance with plans and specifications and in issuing the usual certificates for payment when same were due and exigible to the contractor; that such services were rendered, and that payment, therefore, has been due since the completion of the building, towit: November 5, 1924, and that notwithstanding amicable demand, the amount here claimed remains unpaid.

Defendant answers by denying that any amount is now due plaintiff for commissions as claimed, either as expert or architect, but admits that he was named in the building contract as defendant's architect, and that he furnished plans and specifications. It is further alleged that by verbal agreement between plaintiff and defendant, the former was to receive three per cent of the contract price of the building, which price is admitted by defendant to have been the sum of $13,850.00.

It is further alleged in the answer that in accordance with the verbal agreement, there would have been due plaintiff $415.50, but that plaintiff having requested to be paid in advance, defendant offered him in full compromise the sum of $400.00, which amount was paid plaintiff by defendant’s check, dated July 11, 1924.

From the pleadings as noted, a simple question of fact is presented, that is, whether by verbal agreement in addition to that by which plaintiff was employed as architect to furnish plans and specificatións, he was also to receive extra compensation for services to be rendered in supervising the construction of the building. The only evidence in the record as to this extra agreement is the testimony of the parties themselves, and it has resulted in this as in all such cases, that each litigant by direct and rebuttal testimony, has vigorously denied what his opponent sayeth in regard to the transaction. The burden of proof, is, of course, on the plaintiff to establish such a contract. It cannot be denied, as shown by defendant’s cancelled check to plaintiffs order, and by plaintiff indorsed, that $400.00 was paid plaintiff in advance of any supervisory services which he may have been employed by verbal contract to perform. The check pre-dates the execution of the building contract by three days, and this is a fact which impels us to belief that defendant found it to his advantage to comply with plaintiff’s request that he settle with him in advance for the stipulated commissions of three per cent on valuation of $13,850.00, if he could save thereby the sum of $15.50. It is not denied in any part of plaintiff’s testimony that this was the original basis of fees to be paid. On the contrary, it appears in the record that plaintiff testified —over objections interposed by counsel for defendant — that the one per cent, commission- now sued for, arose from an additional and later verbal contract made subsequent to the original agreement regarding the three per cent, commissions. No witnesses are shown to have been present when either of the alleged contracts were made. Plaintiff has offered in evidence the building contract between defendant and Ascani, the contractor. This document appears to have been signed by plaintiff as a witness, and its recitals do not strengthen, but rather weaken, the contention of plaintiff that he was employed under an additional verbal 'contract as “expert”, to see that the building was erected in accordance with plans and specifications. It is our opinion that such service could involve no other than that of supervision. In the building contract we find that defendant has been repeatedly designated and referred to as “architect and supervisor”, and that it is stipulated in this document — “all work to be done under the supervision and to the satisfaction of E. M. Reynes.” It is further provided therein “that no payments shall be made at any time.unless upon a certificate of' the architect certifying that he has personally examined the work done; that the same has been performed in good condition and in good workmanlike manner, and that there are no claims against the building at the time which may be or might be recorded.”

We are satisfied from the record that plaintiff has failed to establish with any certainty the alleged verbal contract sued upon. The defendant has not answered the appeal taken from a judgment of non-suit.

It is, therefore, ordered that the judgment appealed from be and the same is hereby affirmed, at plaintiff’s costs in both courts.


text:
    No. 9905-9924.
    Orleans Appeal.
    THEODULE ROUSSEAU and ELIZABETH ROUSSEAU, HIS WIFE, v. THE TEXAS & PACIFIC RAILWAY CO. AND THE MISSOURI-PACIFIC RAILROAD CO., Appellants.
    (May 11, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 325.
    Under Act 112 of 1916, all motions to dismiss appeals because of insufficiency of appeal bond or incapacity of sureties thereon should be first determined in the trial court from which the appeal is taken.
    2. Louisiana Digest — Appeal—Par. 325.
    An appellate court will only consider such questions on appeal regularly taken from a judgment granting or dismissing such motions, unless by record disclosures, it is shown that appellant, after opportunity given him in the trial court, has failed to supplement the deficiency in amount of bond or to establish the capacity of sureties thereon.
    Appeal from 24th Judicial District Court, Parish of St. Charles, Hon. Prentice E. Edrington, Judge.
    Judgment for plaintiffs. Defendants appealed.
    There was motion by plaintiffs to dismiss the appeal because of alleged insufficiency of the appeal bonds.
    Motion to dismiss appeals denied.
    Robert J. Perkins, attorney for plaintiff and appellee.
    Hudson, Potts and Bernstein, of-Monroe, John E. Fleury, Spencer, Gidiere and Phelps, of New Orleans, attorneys for defendant and appellant.
   BELL, J.

Plaintiffs and appellees herein moved for dismissal of suspensive and devolutive appeals, which have been separately taken by defendants and appellants from a judgment rendered on the 24th day. of November, 1924, in the 28th Judicial District Court, said judgment reading as follows:

“JUDGMENT
“This case was argued in chambers, on Tuesday, November 11th, and submitted on briefs to be filed.
“The law and the evidence being in favor of the plaintiffs and against the defendants, and for reasons orally assigned:
“It is ordered, adjudged and decreed that there be judgment in favor of Theodule Rousseau and Elizabeth Rousseau, his wife, ' and against the Texas and Pacific Railway - Company and the Missouri Pacific Railway Company, in solido, in the full sum of $3,000.00 each, with legal interest from judicial demand.
“It is further ordered, adjudged and decreed that the defendants, the Texas and Pacific Company and the Missouri Pacific Railway Company, pay all costs of these proceedings.
“Judgment rendered, read and signed this 24th day of November, Parish of St. Charles, La., 1924.
“(Signed) • Prentice E. Edrington,
Judge.”

The suspensive appeal taken on the 1st day of December, 1924, from the foregoing judgment, bears the Docket No. 9905 of this court. The devolutive appeal taken on December 17, 1924, bears the Docket No. 9924. On motion and order, the appeals have been consolidated and the case is now before us on appellees’ motion to dismiss both appeals upon the grounds that the suspensive appeal bond is insufficient as to amount, and that both appeal .bonds, suspensive and devolutive, are irregular and of no effect, because of the incapacity of the sureties thereon. It is further urged as a ground for dismissal that no citation of appeal was made upon appellees.

The objection of want of citation is not well founded, for the reason that the record clearly discloses regular and timely citation of appeal made upon the appellees within the return day fixed for appeal. This particular ground for dismissal of appeal has not been urged at the hearing of these motions, and the record shows that same is without merit.

It is further shown by the record that similar motions for dismissal of these appeals were made by appellees in the District Court, and were taken in the form of a rule to show cause, rather than by notice, as prescribed by Act 112 of 1916. The trial judge designated a special day upon which the rule to dismiss the appeals should be heard, and the record indicates that the appellants, on the rule day as fixed, appeared and filed supplemental bond as to the suspensive appeal and likewise filed other documents for the purpose of establishing the capacity of the sureties on both bonds.

Act 112 of 1916 clearly indicates the procedure by which the insufficiency or incorrectness of bonds of appeal and other bonds shall be tested. It is plain from this statute that such procedure should in all cases arise in the first instance in the trial court.

The procedure to be observed in conforming with the provisions of Act 112 of 1916, as well as the purposes of this Act, have been clearly set forth in the case of Hurry vs. Hurry, 144 La. 877, 81 South. 378. It was there held, among other rulings made in that case, that unless the appellant has failed, after opportunity given in the manner prescribed by the Act, to supply and correct the errors and deficiencies in an appeal bond, that the appeal should not be dismissed because of such errors or insufficiencies, and it is there implied that no motion to dismiss an appeal on such grounds will be entertained in the appellate court, unless hy the record, appellant’s default in the respect noted, has been clearly established.

We are of the opinion that motions to dismiss appeals on such grounds as are now raised in the instant case should be first tried and considered in the trial court from which the appeal is taken, and that an appellate court should only consider such questions when same are presented on appeal regularly taken from a judgment granting or dismissing such motions, unless the exception pointed out in the Hurry case is made to appear by record disclosures.

It is to be noted that the appeals now before this Court are only from th.e judgment above quoted, and do not involve any matter of appeal relating to the ruling of the trial court regarding the motions to dismiss appeals, devolutive and suspensive, which have been taken from the aforesaid judgment.

We are, therefore, of the opinion that the motions to dismiss now presented are improvidently taken, and without considering the merits involved in such motions, they are accordingly denied.


text:
    No. 9968.
    Orleans Appeal.
    MRS. CATHERINE SCHIRO, WIDOW A. MONTELEONE, v. ANTHONY MONTELEONE, Appellant.
    (May 11, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 583; Continuance — Par. 1, 34.
    Trial courts have a discretionary power to refuse a continuance, and their discretion will not be reviewed unless clearly abused.
    (Code of Practice, Art. 468. Editor’s note.)
    2. Louisiana Digest — Continuance—Par. 12, 29.
    A firm composed of two lawyers is not entitled to a continuance of a case nor to a new trial on the ground that one of ■the members was engaged in another Court, when the trial of the case presented no difficulty; and when the party applying for a new trial suggests no evidence which would have produced a different judgment.

      Appeal from First City Court, Hon. Alex. W. Bahns, Judge.
    This is a suit for rent. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Punekey & Barrios, attorneys for plaintiff and appellee.
    Prowell & McBride, attorneys for defendant and, appellant.
   CLAIBORNE, J.

This is a suit for rent. The plaintiff alleged that by judgment of the District Court rendered in the succession of her husband on October 2, 1922, she was recognized as surviving spouse in community and as such went into possession of the property No. 3223 St. Claude Street, as owner and usufructuary; that at the time the above judgment was rendered the defendant, who is her son, was in the actual physical possession of said property; that plaintiff made a verbal lease with him for a rental of $15.50 per month from October 2, 1922; that prior to the judgment putting plaintiff in possession the defendant had been paying $16 per month; that defendant paid plaintiff rent until August 17, 1923, but has failed to pay any amount since that' date. Plaintiff prayed for a provisional seizure and for judgment for $232.

Plaintiff swore to her petition.

The defendant denied each and every allegation in plaintiff’s petition contained.

The answer is signed by Prowell and McBride, attorneys.

There was judgment for plaintiff and defendant has appealed.

The defendant prayed for a new trial on the ground that when the case was fixed for trial on January 19th at 11 o’clock, his counsel, Jones T. Prowell, was engaged in the trial of Kennedy vs. Arctic Ice Company in Division “A” of the Civil District Court; that this case was then continued until- 2 o’clock of the same day; that at 2 o’clock the same day Jones T. Prowell and Richard T. McBride, of counsel for defendant, were both engaged in the trial of other cases in Division “B” of the samé* court; but that the Judge refused to continue the case, and proceeded to try it and to render judgment.

When the case was called for trial at 2 o’clock the defendant’s attorney, Mr. McBride, again moved for a continuance on the ground that Mr. Prowell and he were engaged in the trial of a case in another court. The court then offered to continue the case to the next morning at 9:30, but Mr. McBride did not agree, on the ground that he had “a criminal matter tomorrow.”

It appears that this case had been twice fixed prior -to January 19th; the first time for December 12th and the second time for January 2nd and was continued for the 19th.

It thus appears that the case had been fixed for four different times, and that the Judge saw no merit in the application for another continuance. There were no intricate questions of law involved and the only question of fact was whether the defendant occupied the premises under a lease. There was no reason why Mr. Prow-ell could not have tried that issue in the absence of Mr. McBride or vice versa. There is no evidence that either attempted to be excused in the District Court, to take up the City Court case at 2, nor that Mr. Prowell could not have tried the case the next day at 9:30 in the morning.

It does not appear that the defendant was in Court at any time, nor did he sign the application for a new trial.

Article 468 of the Code of Practice provides :

“The courts have, besides, a discretionary power to grant continuances whenever the cause alleged by the party applying for it appears sufficient to justify the same.”

It has uniformly been held that such a discretion used to refuse a continuance will never be interfered with by the appellate tribunal except in extreme cases ■ where it .appears that a glaring injustice has been done to the party applying for a continuance.

C. P. 468; John Rist vs. A. L. Abbott, 19 La. Ann. 268; State vs. Wilson, 23 La. Ann. 559; Powell vs. Jenkins & Walker, 24 La. Ann. 444; Naughton vs. Dingrave, 25 La. Ann. 543; Dillon vs. Dillon, 32 La. Ann. 643; State vs. Wilson, 33 La. Ann. 261; State vs. Hornsby, 33 La. Ann. 1110; State vs. Judge of Civil District Court, 34 La. Ann. 76; State vs. Kane, 36 La. Ann. 153; Cameron vs. Lane, 36 La. Ann. 716; The State of Louisiana vs. Joe Foster, 36 La. Ann. 878; State vs. Clark, 37 La. Ann. 129; The State of Louisiana vs. J. W. Redmond, 37 La. Ann. 775; State vs. Primeaux, 39 La. Ann. 673, 2 South. 423; State vs. Crawford, 41 La. Ann. 589, 6 South. 471; State vs. Spooner, 41 La. Ann. 783, 6 South. 879; Labouisse vs. Orleans Cotton Rope and Mfg. Co., 43 La. Ann. 584, 9 South. 492; State vs. McCarthy, 44 La. Ann. 323, 10 South. 673; The State of Louisiana vs. Christoval Hillstock, 45 La. Ann. 298, 12 South. 352; The State vs. Bevell, 47 La. Ann. 48, 16 South. 568; State vs. Gaubert, 49 La. Ann. 1692, 22 South. 930; Newell vs. Leathers, 50 La. Ann. 169, 23 South. 243; State vs. Keiner, 52 La. Ann. 1476, 27 South. 961; State vs. Mathis, 106 La. 263, 30 South. 834; Wetta vs. New Orleans & C. R. Co., 107 La. 383, 386, 31 South. 775; State vs. Dalcour, 145 La. 1008, 83 South. 223.

The voluntary absence in another court of a party’s counsel where other counsel is engaged and attending is no ground for a continuance. Ingraham vs. White, 2 La. 297; Mason vs. Mason, 12 La. 592; Soey’s Heirs vs. Soey’s Curator, 13 La. 424.

An affidavit of the indisposition of principal counsel will be disregarded where from circumstances, dela,y is probably the object. Hooper vs. Hyams, 1 R. 90.

The absence of counsel is not a ground of continuance, where a party has been assisted by other counsel and had no evidence which would have produced a different result if his counsel had been present. Gardner, Sager & Co. vs. O’Connell and Gould, 7 La. Ann. 453.

A continuance will not be granted on account of the inability of counsel to attend court. J. Kohn vs. R. H. Short, 18 La. Ann. 291.

A judgment refusing a new trial will be affirmed where it does not appear that the refusal has caused the applicant any injury. State vs. Wilson, 33 La. Ann. 262.

“It has been repeatedly held that a continuance will not be granted on account of the absence of counsel engaged in professional business elsewhere.” Johnson vs. Dean, 48 La. Ann. 100, 18 South. 902.

We are of the opinion that the Judge did not abuse his discretion in refusing a continuance. One or the other of counsel for defendant could have tried the case at 11, or at 2; but if not then, certainly the next morning at 9:30. The District Courts do not meet before 10:30.

Nor is there any evidence that the. refusal of a continuance worked any hardship upon the defendant. His answer is only a general denial. In his application for a new trial he alleges that there is a suit pending to annul the testament under which plaintiff holds as owner, and that he owns 1-18 interest in the property. The pending of that suit to annul the testament was no ground to suspend its execution and operation. The defendant may have owned 1-18, yet the record shows that the plaintiff was the usufructuary of the whole.

The evidence is that defendant occupies the premises 3223 St. Claude Street and that he has not paid rent since August 17, 1923.

The defendant did not testify.


author: WESTERFIELD, J.

text:
    No. 9972.
    Orleans Appeal.
    M. HEYMAN v. BENEDICT A. LACOMBE, Appellant.
    (May 11, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Landlord and Tenant Par. 84, 92.
    A landlord, who, despite persistent efforts to effect prompt payment of his rent, accepts partial and tardy payments thereof as the only means of collection, does not waive the right to insist upon prompt payment and is not estopped by such conduct.'
    2. Louisiana Digest — Landlord and Tenant —Par. 97.
    A lessor may obtain provisional seizure of the property found on the leased premises, whether the rent is due or not, if he swears to the amount he claims and that he has reason to believe the lessor intends to remove the property from the leased premises.
    (Code of Practice, Art. 287. Editor’s note.)
    Appeal from First City Court, Hon. Val. J.Stentz, Judge.
    This is a suit on rent notes coupled with a provisional seizure. The seizure was enjoined.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    K.V. Richard, attorney for plaintiff and appellee.
    B. W. Kernan, attorney for defendant and appellant.-
   WESTERFIELD, J.

On January 2, 1925, plaintiff caused a writ of provisional seizure to issue, seizing certain property in the leased premises belonging to plaintiff and occupied by defendant under a written lease dated July 29, 1924.

The allegations of plaintiff’s petition are that the rent note ,of plaintiff, due January 1st, 1925, was unpaid and that under the terms of his lease the remaining six rent notes are, by reason of defendant’s default, due and collectible; that the defendant is about to remove from the leased premises all of the property contained therein upon which plaintiff has a lien and privilege; that defendant has informed plaintiff that he did not intend to pay his rent and contemplated moving from the leased premises. The seizure was enjoined (a proceeding which seems to us unusual). ’Upon the ground that it was unlawfully issued in that the rent was not due and that plaintiff had given permission to move from the leased premises and upon ' the further ground “that due to said writ of provisional seizure he (petitioner) is unable to sell any groceries and is thereby deprived of all means to make a living for his family.”

The injunction was subsequently, upon motion, dissolved. A trial was had upon the merits and judgment rendered in plaintiff’s favor and against defendant in the sum of $245.00 plus 10% attorney’s fees and recognizing plaintiff’s lien and privilege upon the property provisionally seized. From this judgment defendant has appealed.

The judgment appealed from is said to be erroneous because:

1st. Plaintiff orally agreed with defendant to cancel the lease as of date February 1, 1925.

2nd. Plaintiff did not exact prompt payment of the rent and without notice of his intention to do so in this instance was estopped to demand it on the due date.

3rd. January 1, 1925, being a holiday the note due that day could be paid at any time the next day and the suit begun on January 2nd was premature.

The evidence does not sustain the contention that the plaintiff agreed to cancel its lease unconditionally, but only upon condition of another tenant, satisfactory to plaintiff being procured. It would be most unusual for a landlord to release a tenant in mid-term upon less onerous conditions and the evidence does not convince us that the landlord imposed no condition to the cancellation of defendant’s lease as claimed hy defendant.

As to the manner of payment of the rent and the landlord’s conduct in reference thereto, it appears that payments were made in a most irregular manner in cash and hy check. When checks were given they seem to have been universally dishonored when presented to the bank for payment. No single payment except by cheek was as much as $35.00, the amount of the monthly rent, and the landlord experienced the greatest difficulty in collecting even in this most unsatisfactory manner. No estoppel exists as against a landlord, who, despite persistent efforts to effect prompt collection of his rent, is forced to accept tardy and partial payments or none at all. Briede vs. Babst, 131 La. 160, 59 South. 106; Falco vs. Guilbert, 8871 Orl. App. Moreover, this lease contains a clause to the effect that no indulgence on plaintiff’s part will amount to a waiver of his right to insist upon prompt payment.

Whether the note being due on a holiday was not exigible until the second day thereafter is immaterial since in this petition, which is sworn to, it is alleged (and the allegation is sustained by the evidence) that defendant was about to part with or dispose of the property in the leased premises. C. P. Art. 287.

A tender was made of $35.00 on January 7, 1925. This tender was insufficient in amount because at that time suit had been instituted since January 2nd and court costs and 10% attorney’s fees, as stipulated in the lease, were not included. The tender is therefore without effect.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 9983.
    Orleans Appeal.
    THOS. McMAHON v. E. L. KUSSMAN, Appellant.
    (May 11, 1925, Opinion and Decree.)
    (Rehearing Refused June 8, 1925)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Buildings — ;Par. 25.
    In a building contract imperfectly executed the measure of damages is the increased price it has cost the owner to do it well.
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit for repairs made to a building.
    Judgment for plaintiff. Defendant appealed.
    Judgment amended and affirmed.
    Fred. G. Yeith, attorney for plaintiff and appellee.
    Theo. H. McGiehan, attorney for defendant and appellant.
   CLAIBORNE, J.

The plaintiff, a contractor, averred that he made two contracts in writing with the defendant, as follows:

“1. To put new 4x6 gutters and pipes on above properties for the sum of $140, the same to be Amico ingot iron, and a first-class job.
“2. To clean off, paint, calcimine and varnish the interior of -------- Tulane Ave., in colors to suit owner, for $85.00, etc.”

1st. That the plaintiff has completed the first contract for which defendant has paid $45.75 on account of the materials used for the gutters, leaving a balance due of $94.25.

2nd. That the plaintiff has- partly executed the second contract; that the work done by him is worth $35 — making a total due him, on both contracts, of $129.25, for which he prays for judgment.

In answer to the claim for the gutters the defendant avers that the new gutters were not properly put up; were not riveted; were not soldered; short lengths of pipe and guttering were used instead of long lengths; the gutters were not fastened to the house in a workmanlike manner, so that the rain drips between the exterior, of the house and gutters instead of dripping into the gutters.

In answer to the second contract for painting the defendant avers that the plaintiff proceeded to do the work in a very unworkmanlike manner; that part of the work to be done with enamel was being done with inferior material, which plaintiff refused to remedy upon defendant’s remonstrance and quit the job; that owing to plaintiff’s delay defendant could not rent the premises during one month and thereby lost $30 which he claims in reconvention.

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

The record contains 54 pages of the testimony of nine witnesses. A recital of their testimony would serve no useful purpose.

1st. Our conclusions are that the trouble with the gutter, which was not a hanging gutter but a square gutter 4x6, was that it was only nailed to the rafters instead of being flashed under the slates as it should have been to make a first-class job. But in order to do that it would have been necessary to remove two rows of slates on the eaves of the roof. The plaintiff testifies that he “pointed that out to the lady, and that it would cost more money”. But the trouble could have been remedied at slight cost by slipping pieces of tin under the slates. It does not appear that plaintiff attempted any remedy or spent any money on that account.

Plaintiff’ is therefore entitled to recover the balance due him ’ for the gutters, say the sum of $94.25.

2nd. But the plaintiff does not pretend that he fulfilled his painting contract. He says, however, that he did a part of it which he alleges is worth $35. In his testimony he values it at $31. Calcimining two rooms and varnishing two. But several witnesses testify that the work was so badly done that it had to be done over again. The plaintiff had not cleaned off the walls as he had contracted to do. A witness, a painter, who was employed to go over the work the plaintiff had contracted to do, says he went over it and that he charged the defendant $80. Therefore defendant owes the plaintiff the difference of $5. There is no evidence that the painting would have been concluded sooner had plaintiff performed his contract. Defendant is therefore not entitled to rent.

It is therefore ordered that the judgment in favor of the plaintiff be reduced from One Hundred and Twenty-four 25-100 Dollars to Ninety-nine 25-100 Dollars, and as thus amended, that it be affirmed. The costs of appeal to be paid by the plaintiff and appellee.


text:
    No. 8848.
    Orleans Appeal
    MRS. RAY LEVI, WIFE and C., Appellant, V. CRESCENT CITY SELTZER AND MINERAL WATER CO., INC.
    (May 25, 1925, Opinion and Decree.)

      (Syllabus by the Court.)
    1. Louisiana Digest — Landlord and Tenant —Par. 4; Pleading — Par. 115; Evidenc —Par. 53, 59.
    In order to recover under Article C. C. 670 plaintiff must prove that the defendant was the owner of the property.
    2. Louisiana Digest — Landlord and Tenant —Par. 4; • Pleading — Par. 115; Evidenc —Par. 53, 59.
    In order to recover under Article C. C. 2692 2695 plaintiff must prove that the defendant was his lessor.
    3. Louisiana Digest — 'Mandate—Par. 6, 8.
    Plaintiff suing a corporation as his lessor represented by an agent must prove that the agent was authorized by the corporation expressly or impliedly to lease the property to the plaintiff.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is-a damage suit caused by the fall of a set of steps.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Paul W. Maloney, attorney for plaintiff and appellant.
    Richard B. Otero, C. S. Hebert, attorneys for defendant and appellee.
   CLAIBORNE, J.

Plaintiff claims of the defendant Five Thousand Dollars damages for injuries suffered by her when certain steps of premises occupied by her fell.

She alleged that her husband, George W. Garic, leased from the defendant the Crescent City Seltzer and Mineral Water Company the premises No. 1015 N. Dupre Street; that as she was ascending the rear steps in order to get into her apartment the said steps broke with her weight, throwing her to the ground and injuring her severely; that the accident was caused by-the negligence of the defendant in allowing said steps to get into a dangerous condition.

The defendant denied all the allegations in plaintiff’s petition contained.

There was judgment in favor of defendant and plaintiff has appealed.

For reasons of judgment the learned District Judge found that “the defendant entered a general denial, and on the trial of the case, offered proof to show that it was not the owner of the premises on which plaintiff was injured, and was not the lessor thereof.”

An inspection of the transcript satisfies us that the judge did not err.

Plaintiff’s action is not ex delicto, under C. C. 670, for the title of the property shows that it was acquired in 1917- by Isabella Gillan, wife of Henry Silver, and sold by her in 1921 to Patrick W. Gillan. It follows that the plaintiff has no right of action against the defendant, as owner.

Nor has she any right of action under C. C. 2692-2695, because she was not the “lessee” of said premises, and that those articles extend their protection only to lessees. The learned counsel for plaintiff is in error in drguing that the plaintiff was a tenant of the defendant. She states in her petition that the premises had been “leased by her husband”.

In Brodtman vs. Finerty, 116 La. 1103, 41 South. 329, and in Bianchi vs. Del Valle, 117 La. 590, 42 South. 148, it was held that the wife had no claim against the lessor when the husband had none as lessee. But these decisions were reversed in Ciaccio vs. Carbajal, 142 La. 127, 76 South 583; Breen vs. Walters, 150 La. 585, 91 South. 50; Ciaccio vs. Carbajal, 145 La. 870, 83 South. 73.

If the wife is not bound by the law and the contract against the husband, it would seem to follow that she cannot rest a case upon a law or a contract in favor of her husband alone.

But the plaintiff’s husband testifies that he rented the house from the defendant Company through its' representative, Pat . Gillen.

The plaintiff’s husband testifies as follows:

Q. What was the conversation between' you and Mr. Pat Gillin?
A. I said to him (Gillin): “I understand my wife rented this house from you; is it all right,” and he said: “All right.”
Q. That’s the whole transaction?
A. Yes, sir.
Q. Well, how did your receipts read?'
A. The receipts read: Crescent City Seltzer Water Works, per Miss Gillin, with a red stamp on the bottom.”

None of the receipts were ever produced, although called for. Nor is it shown that Miss Gillin acted for the defendant.

The plaintiff testifies: “I had receipts from Mr. Gillin, I had receipts from Mrs. Silver, and I had receipts from the Crescent City Seltzer Water Company, per Miss Gillin.”

Patrick Gillin says that he was the manager of the Crescent City Seltzer Water Company; the president was his sister, Mrs. Silver, the owner of the property at the time of the accident; the defendant Company never owned the property 1015 N. Dupre Street; the plaintiff rang him up by phone and asked to rent the property; he told her the property belonged to his sister, Mrs. Silver; no part of the rent ever passed into the treasury of the defendant.

Mrs. Silver testified .that she owned the house 1015 N. Dupre Street at the time of the accident; when she went to collect the rent the plaintiff would be out; so she told her that “there was no use for her to go out there for nothing, that she could send it to the factory; that either her brother or his book-keeper would be there, or his daughter could receive it, as long as she paid the rent,” she did not give any of the receipts, and never saw any of them, and did not know that they were given in the name of the defendant company.

Mrs. M. P. Abbott, Miss Catherine Gillin that was, testified that she was the daughter of Pat Gillin; that she lived next door to the plaintiff, who often paid her rent to her, and that she took it to the factory and gave it to her aunt, Mrs. Silver; she did not work for the defendant; she just went to the factory to help her father out.

The record shows affirmatively that the defendant never owned the property 1015 Dupre Street. ' Nor is there anything to show that the defendant held itself out as owner, or authorized Miss Gillin or any one else to sign rent receipts in its name.

The plaintiff relies upon the case of Johnson vs. La. R. & N. Co., 151 La. 1075, 92 South. 704. But in that case the defendant and the President of the Company owned numerous houses in the same neighborhood; the Company and its President employed the. same agent and collector; the tenants were not informed of the names of the respective owners and all rent receipts were alike, signed by the same agent, on receipts similar in form and language, and all bore at the top the name of the defendant; and all carried a serial number; the same kind of receipt was given to all tenants of both owners; the last bearing the number 48,-431; the same office of the defendant audited all those receipts. Thus the defendant held itself out to the plaintiff as owner and lesser. These features do not exist in this present case.

Judgment affirmed.


text:
    No. 8967.
    Orleans Appeal.
    STANLEY A. HARVEY, Appellant v. ELIE AARON.
    (May 25, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 222, 278.
    Where an offer to purchase real estate, irrevocable for a certain period of time is made in writing, iSarol evidence is admissable to show the rejection of the offer by the owner of the real estate prior to the expiration of the time mentioned.
    (Civil Code, Article 2276. Editor’s note.)
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    This is a suit to recover a commission as real estate broker. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville & Woodville, attorneys for plaintiff and appellant.
    Emile Pomes, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff, a real estate broker, sues defendant for a commission of $172.50 with interest and attorney fees of 25% of principal and interest under the following . circumstances: Defendant gave plaintiff a written offer to purchase a certain piece of property belonging to one Maestri for the sum of $5750.00. It was stipulated that the offer was irrevocable up to 6 p. m. Nov. 12th, 1918, and that in the event of its acceptance by the owner within that time and of defendant’s refusal to accept title and comply with the terms of the offer a commission of 3% was to be paid plaintiff by defendant together with interest and attorney’s fees fixed at 25% of the commission to be paid. At 5:45 p. m. on November 12th plaintiff called at defendant’s place and in the presence of two witnesses exhibited the signature of Maestri the owner of the property to an acceptance of the offer of defendant and demanded the customary deposit of 10% of the purchase price as stipulated in the terms of the offer. Defendant refused to make the deposit or to recognize his obligation to accept the title upon the ground that his offer had been definitely rejected by plaintiff the day previous wheD it was mutually agreed that the transaction was “all off”.

On the trial of the case plaintiff’s counsel objected to parol evidence to prove a rejection of defendant’s offer upon the ground that it tended to alter or contradict the written offer of defendant which had been accepted by the owner of the property. The objection was not sustained and we do not think it should have been since we fail to see how it contradicts the terms of the offer which was to be irrevocable before November 12th so far as defendant was concerned but subject to rejection by the owner of the property at any time.

The evidence when presented consisted of the testimony of defendant and two witnesses, a friend and a connection by marriage of defendant, to the effect that on November 11th, 1918, plaintiff called at defendant’s place of business and informed defendant that his offer of $5750.00 could not be accepted because'plaintiff had in his pocket -an offer of $6000.00, but if defendant would raise his bid to $6000.00 he would be given the preference and the property sold to him. Defendant thereupon refused to offer the additional $250.00 and with the consent of • plaintiff the transaction was then called off. Plaintiff admits calling upon defendant at the time and place mentioned but denies calling the deal off and says his only reference .to $6000.00 was a statement that if defendant would bid this sum he could get the property.

It is obvious that the case turns upon the question of veracity and that in number' the witnesses of defendant greatly preponderate since defendant is supported by two witnesses. and plaintiff can offer only his own testimony uncorroborated. . We are asked to consider the relation of defendant’s two witnesses and the improbability of their statements. One was connected by marriage, having married the sister of defendant’s wife and the other an old friend. The family tie was not particularly close and no reason other than friendship is suggested as reflecting upon the testimony of the friend. We do not find the evidence very improbable. A real estate agent might, in his desire to effect a sale, mislead a purchaser as was claimed to have been done in this case. The property was sold a day or two later to another party for $5500.00 and plaintiff was paid a commission on this sale. The owner has made no claim against defendant based upon his acceptance of defendant’s offer to purchase. The trial Judge, who was in a position to see and hear the witnesses, gave judgment for defendant. We are not convinced that he was manifestly mistaken.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 8978
    Orleans Appeal.
    OTTO SIZELER, Appellant v. MISS CATHERINE G. CLONEY AND EDWARD EGAN.
    (May 25, 1925. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Auctioneers—Par. 13.
    An adjudication at public auction completes the 'sale and vests in the adjudicatee the ownership of the property adjudicated.
    (Note case of Etta Contracting Co. vs. Bruning, 134 La. 48, 63 South. 619, not reported under this subdivision in the Louisiana Digest. Editor’s note.)
    2. Louisiana Digest — Auctioneers—Par. 4, 13; Sales — Par. 47.
    But where it dries not appear that written authority was given the auctioneer by the owner to offer the property as required by R. C. C. 2606, the sale cannot have the effect of an adjudication at public sale properly authorized and the owner and adjudicatee will be regarded as promisor and promisee under agreement to sell and buy conventionally made and a deposit of 10% given the auctioneer under the terms of sale will be considered as the giving of earnest.
    Appeal from Civil District Court, Hon. Percy Saint, Judge, acting for Hon. E. K. Skinner, Judge.
    This is a 'suit for specific performance of an adjudication at a public auction. There was judgment for plaintiff to the amount of his deposit only and plaintiff has appealed.
    Judgment- amended and affirmed.
    Howell Carter, Jr., Daniel Wendling, attorneys for plaintiff and appellant.
    A. J. Peters, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for specific performance and in the alternative for damages. Defendants caused a number of pieces of real estate owned by them to be sold at public auction and plaintiff as the highest bidder became the adjudicatee of one of the parcels known as 1526 Iberville Street for the sum of $1600.00 paying to the auctioneer the sum of $160.00 or 10% of the purchase price. The terms of sale applicable to all the items sold including the one adjudicated to plaintiff were as appears by the public advertisement as follows:

“One-half or more cash, balance in one and two years, 8% interest, 10% deposit at time of sale. * * * . Rents to be collected by purchasers from date of signing act of sale.”

The property adjoining the lot adjudicated to plaintiff was bought in at this same public sale by Mrs. Catherine G. Cloney, one of the defendants herein. This property had been leased to a party by the name of Walker for a term of years and his lease was recorded prior to the public sale. After the sale and while plaintiffs counsel were examining the title Walker made affidavit to the effect that though his lease referred only to 1532 Iberville (the adjoining property purchased by Mrs Cloney) nevertheless the lease was in tended to and did embrace both properties 1532 and 1526 Iberville. When plaintiff discovered this inscription in the Convey anee office affecting the property adjudi cated to him, he demanded that defendants as his vendors at the public sale, cause its erasure. Defendants were unwilling to také any steps to have the inscription of the affidavit removed and took the position that no lease verbal or otherwise had been given Walker of 1536 Iberville and that the only lease Walker held was of the premises 1532 Iberville which was in writing and contained no reference • to 1526 Iberville. Title was tendered plaintiff cum onere and plaintiff declined to accept title unless the affidavit was removed or unless plaintiff would agree to an adjustment of rent as of the date of the act of sale in which event plaintiff was willing to recognize Walker’s alleged lease of the property adjudicated to him claiming that the terms of sale entitled him to rent from the date of the act of sale. Defendants would not divide the rent insisting that the property sold plaintiff was not rented to Walker They offered to return the deposit made by plaintiff and finally to return the double treating it as earnest money. Plaintiff declined all offers adhering to his original position.

The trial court awarded plaintiff judg ment for the amount of his deposit only and plaintiff has appealed.

The first question to be considered is whether the deposit in this case is earnest money or a payment on account of the purchase price. In other words was the transaction a sale or a promise to sell.

In Nosacka vs. McKenzie, 127 La. 1063, 54 South. 351, the court said:

“The question of whether the money paid by the defendants was earnest money, or was part of the purchase price, is a question of fact. It must be solved by ascertaining the intention of the parties, and this intention can be ascertained only by a consideration of all the facts in connection with the agreement of the parties.”

And in Sonneman vs. Cutter, 10 Orleans App. 158, this court said:

“Whether or not money deposited by a purchaser is ‘earnest money’, is a question of fact dependent upon the intention of the parties to be deduced from a consideration of all the facts surrounding their agreement.”

In Smith vs. Hussey, 119 La. 32, 43 South. 902, it was held:

“An agreement for the sale of real estate, which contemplates the passing of the property, not immediately and by virtue thereof, but by an act to be executed at a latter date and which in other respects, contain the elements essential to a sale, is a promise of sale, and, when ‘made with the giving of earnest, may be receded from by either of the parties who has given the earnest, by forfeiting it, and he who has received it, by returning the double.’ ” (Syllabus.)

In Legier vs. Braughn, 123 La. 463, 49 South. 22, the court held that in the absence of evidence to the contrary the deposit of a sum of money at the time of the contract was presumed to be earnest money, saying:

“Earnest, in the civil law is a sum of money which one of the contracting parties delivers to the other at the time of the contract and is presumed to he a forfeit, in the absence of evidence that the parties then and there intended to bind themselves by an irrevocable contract.”

Plaintiff contends that whatever may be the law as to earnest money under conventional agreements in public sales title passes immediately and there is no giving of earnest,, whatever deposit is made with the auctioneer being necessarily considered as part of the purchase price.

He cites the following articles of the Civil Code:

Art. 2601. The sale by auction is that which takes place when the thing is offered publicly to be sold to whoever will give the highest price.

Art. 2602. This sale is either voluntary or forced: voluntary when the owner himself offers his property for sale in this manner; forced, when the law prescribes this mode of sale for certain property, such as that of minors.

Art. 2604. The sale by auction, whether made at the will of the seller, or by direction of the law, is subjected to the rules hereafter mentioned.

Art. 2605. It cannot be made directly by the seller himself, but must be made through the ministry of a'public officer, appointed for that purpose.

Art. 2607. When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who made the offer, is publicly declared to be the purchaser, and the thing sold is adjudicated to him.

Art. 2608. This adjudication is the completion of the sale the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.

Art. 2609. If the adjudication be made on condition that the price shall be paid in cash, the auctioner may require the price immediately, before delivering possession of the thing sold.

Art. 2610. If the object adjudged is an immovable for which the law requires that the act of sale shall be passed in writing, the purchaser may retain the price, and the seller the possession of the thing, until the act is passed.

This act ought to be passed within twenty-four hours after the adjudication, if one of the parties require it; he who occasions a further delay is responsible to the other in damages.

Defendant replies that in Collins vs. Desmeret, 45 La. Ann. 114, 12 South. 121, it was held that an adjudication at public sale does not convey property but amounts only to a promise of sale, the parties thereto being in the same relation to each other as a “promisor and promisee in a promise of sale conventionally made.”

But Collins vs. Desmeret was overruled if not expressly, certainly in effect, by the Etta Construction Co. vs. Bruning, 134 La. 48, 63 South. 619, where Justice Monroe in the opinion declares:

“The law and jurisprudence of the state establish the general rule (to which there are certain exceptions) that the adjudication at public auction completes the sale and vests in the adjudicatee the ownership of the property adjudicated.”

However in order for public sales to have such effect it is necessary for the auctioneer to have written authority to offer the property as provided by R. C. C. 2606. If no such authority is given the auctioneer the title does not pass. Horang vs. Gheens Realty Co., 155 La. 87, 98 South. 760.

In the case before us there is no allegation nor proof to the effect that the auctioneer who adjudicated the property to plaintiff -had written authority so to 'do. We therefore conclude that in this case the title did not pass by adjudication and the case must be considered as similiar to the case of a promise to sell under conventional agreement. Viewed in this light we have no difficulty in reaching the conclusion that the defendants were privileged to withdraw from their agreement by tendering double the deposit which must be considered as earnest money.

Plaintiff admits tender of the double' of the deposit by defendant prior to the institution of this suit. The costs must therefore be borne by plaintiff.

For the reasons assigned the judgment appealed from is amended so as to reward plaintiff the sum of $320.00, all costs to be borne by plaintiff and as thus amended it is affirmed.


text:
    No. 9838.
    Orleans Appeal.
    FERNANDO ROSES, Appellant v. JOHN B. PATORNO, ET. AL.
    (May 25, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 218.
    Where an automobile is sold at public auction and guaranteed by the auctioneer to be in running order, the purchaser is under no obligation to pay the price if it can not be made to run without extensive repairs.
    (Civil Code, Article 2520. Editor’s note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a suit for the purchase price of an automobile. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Walter B. Hamlin, attorney for plaintiff and appellant.
    O. B. Smart, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for the purchase price of an automobile. Defendant as the highest bidder, was the adjudicatee at public sale of a Winton Automobile be longing to plaintiff. Defendant avers that ■the automobile would not run and was therefore unfit for the purpose for which it was intended. There was judgment for defendant and plaintiff has appealed.

The evidence clearly proves that the auctioneer guaranteed the automobile to be in running order and that when defendant attempted to drive it away it could not be made to run even with the assistance of an expert who had been summoned from a nearby garage for that purpose. The automobile was thereupon towed to á garage and upon examination was found to be in bad mechanical condition and in need of extensive repairs to put it in running order. Defendant thereupon stopped payment on his check which he had given the auction eer and refused to accept the car.

The vendor warrants the thing sold to be fit for the purpose for which it was intena ed unless warranty be expressly waived Crawford vs. Abbott Automobile Co., 157 La. 59, 101 South. 871.

We find no error in the judgment appealed from and it is therefore affirmed.