text:
    No. -
    First Circuit Appeal
    THE GUARANTY FINANCE CORPORATION v. J. A. MIRE
    (Feb. 18, 1925, Opinion and Decree.)
    (May 5, 1925, Rehearing Opinion)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 116.
    One who' purchases' drafts or “trade ae- . ceptances” ■ before maturity is presumed to be a holder in due course.
    2. Louisiana Digest — Bills and Notes— Par. 120, 216, 220.
    The mere fact that lines had been drawn ■ across the drafts or “trade acceptances” • and had been erased so that they were ' no.t perceptible merely leaving a slight dent in the paper which could be perceived bn close inspection, will not destroy the presumption that the purchaser before maturity is a holder in due course.
    (ON REHEARING.)
    3. Louisiana Digest — Bills and Notes— Par. 120, 220.
    Apparent erasures on the drafts or “trade acceptances” all of which’ remain unexplained and unaccounted for by the plaintiff is sufficient evidence to destroy the presumption that plaintiff is the ■holder' in due course.
    Appeal from the parish of St; Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit to recover on three drafts or ‘“trade acceptances”. There was judgment for defendant which was reversed by the Court-
    of Appeal. The former judgment of the Court of Appeal is reversed and the judgment of the district court, affirmed on a rehearing.
    A. J. Finney, of Covington, attorney for plaintiff, appellant. . .
    S. W. Provensal, of New Orleans, attorney .for defendant, appellee..
   MOUTON, J.

Three trade acceptances, each for $202.00, were drawn in favor of the Lawrence Phonograph Corporation on July 25, 1922. They are signed by defendant, against whom this suit is brought, on these acceptances by plaintiff corporation as a holder thereof for a valuable consideration, before maturity. The defendant denies that plaintiff acquired these acceptances for value before maturity; admits his signature thereto, but avers that it was obtained through fraud and, artifice.

T. H. Ward, of St. Louis, examined under commission, says he was' secretary and treasurer to plaintiff corporation in the year 1922, and that these three drafts or acceptances were acquired by plaintiff before maturity for ah approximate discount of about ten per cent. It- is therefore clear from the testimony of this witness that these acceptances were acquired by plaintiff before maturity and for' value. These trade acceptances were made payable, respectively, thirty, sixty and ninety days after July 25, 1922; the' date of 'their execution, August 16, 1922, before the trade acceptance for the thirty-day period had, matured, plaintiff corporation wrote a letter to defendant, Mire, notifying him that it l^d acquired these trade • acceptances by pinchase from the Lawrence Phonograph Corporation in whose favor they had been originally issued. This letter, written át a time unsuspicious, has the effect of corroborating the testimony of Ward in reference to the acquisition of these acceptances by plaintiff corporation before maturity.

In support of his contention that his signature to these trade acceptances was obtained through fraud and artifice^ defendant claims first, that when the agent of the Lawrence Phonograph Company asked for his signature to the contract, he discovered it was in the form of a trade acceptance, that he refused to sign,' and afterwards affixed his signature thereto only after the agent had drawn a heavy line across the face of the draft, and had thus destroyed its character of negotiability. He says the agent left with him a piece of paper we find in the record, and which is doubtless a duplicate of the contract, including the trade acceptances.

The letter written by plaintiff corporation to defendant on August 16, 1922, reads as follows:

“Dear Mr. Mire:
“This will be your official information that the Guaranty Finance Corporation has, through purchase, become the owner of your three trade acceptances in the amount of $202.0.0 each and aggregating $606.00, dated July ’25, 1922, and maturing in 30, 60 and 90 days respectively, made payable to the Lawrence Phonograph Corporation. Kindly make. all remittances direct to this office or to any bank or trust company in whose hands this paper may be placed for collection.”

August 18, 1922, two or three days after the date of this letter, defendant wrote a letter in answer thereto to plaintiff corporation. In that letter defendant says the Lawrence Phonograph Corporation had sent the phonographs on consignment, and that they were to be paid as sold. He also stated the machines were too high-priced to sell in his locality. There is no reference whotsoéver in defendant’s letter that a cross mark had been drawn over the face of these trade acceptances upon which plaintiff corporation, as purchaser thereof was demanding payment from him. Appended to his letter we find the follow'; ing footnote in the same handwriting and in which defendant says:

“If this is a trade acceptance you and the Lawrence-representative misrepresented the agency to me.”

In this, the claim is that the salesman of the Lawrence Company had misrepresented his agency, but there is no statement, not even the slightest reference, to the erasure which defendant now claims had been made to nullify the negotiability of the instruments sued upon.

In this footnote it must also be observed that defendant writes as follows:

“If this is a trade acceptance, you, etc.”

In his testimony defendant says that when the agent wanted his signature he discovered the contract “was in the form of a trade acceptance and he hesitated to sign it”, until he was assured the acceptance would be made “void”. Again he says: “I know wkat an acceptance is, and I noticed that and refused to sign it.”. Further he says: “When the agent made it void (referring to the trade acceptance) by marking out that part, I signed it.” From such testimony as this there can be no question that defendant, whose own testimony shows had been in business twenty years, knew what these trade acceptances were. His own evidence and his experience in business life leave no doubt on this proposition. As he unquestionably had knowledge of the character of such paper, how is it possible to explain his statement in the footnote, above referred to, where he begins by saying, quoting: “If this is a trade acceptance, etc.” He knew what it was but probably had then in mind the idea he might escape liability by claiming he was ignorant of its meaning. As he well knew otherwise, if as defendant now contends, the acceptance had been erased, there can be no question he would have so stated to plaintiff corporation when written for payments and would have repudiated his liability on these trade acceptances in his letter of August 18, 1922.

A. D. Carr, assistant cashier of the Bank of Slidell, where these trade acceptances had been placed for collection, testified in the case in reference to the marks which defendant claims destroyed their negotiability. He says defendant came in the bank with his attorney after he was notified of the acceptances, and that after he had stated to the cashier they had been made “void” they “finally located two little marks that could be seen through the signature, which appeared to have been erased.” He says the impression of the pencil across the face of the paper had made a dent in it, and that -you could plainly see something had been rubbed off or out. At the time he testified he stated, however, that he could not then see any “marks”. These trade acceptances, after they had been examined at the bank, as before stated, had remained in its possession, and subsequently in the custody of the court up to •the trial of the case. If these marks were so heavy that they had made a dent in the paper, is it possible to believe that they had so mudh faded away when the case was tried that they could hardly then be detected by the cashier himself? It occurs to us they would have „still been there, and easily noticeable.

The fact is that we have carefully scrutinized these trade acceptances which are in this record, and we have been unable to find any traces of these “heavy” pencil marks which defendant claims were drawn for the purpose of destroying their commercial value. Defendant has, therefore, failed to prove that these trade acceptances had been obtained from him through fraud and artifice, unless we are to infer this from the fact that a letter was written by the Lawrence Phonograph Company to the defendant, in which it used the following language:

“Now, Mr. Mire, all that we want is to protect our interests in the trade acceptances of yours which we hold, and we must insist upon some payment being made at once.”

It must not be forgotten that the Lawrence Company had endorsed these drafts in favor of plaintiff, and was therefore responsible as an endorser thereon. It certainly had “interests” to protect, and such a letter as this cannot be taken as destructive of the rights of the plaintiff which is shown by uncontradicted evidence to have acquired the paper, before maturity and for value. The evidence shows that there is nothing in common , between the two corporations either as stockholders or by way of interlocking directorates. Under such a state of facts it is impossible to hold that the letter so written by the Lawrence Company should have the effect of depriving plaintiff from recovering on this commercial paper acquired in the usual course of trade. It was mainly on this letter that the trial court rejected the demand. This was an error, and the judgment must be reversed. Plaintiff must have judgment for the amount claimed with six per cent interest from maturity of the installments until paid, as provided for in the trade acceptances.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed; that plaintiff have judgment against defendant in the sum of six hundred and six ($606.00) dollars with interest at the rate of six per cent on $202.00 from August 25, 1922; on a like amount from September 25, 1922, and October 25, 1922, and all cost of court.

ON REHEARING.

LECHE, J.

The paramount issue involved in this case is whether the drafts or “trade acceptances” as they are called on their face, are negotiable instruments within the intendment of the law and whether the plaintiff is an innocent third holder for value or a holder in due course. There is no question here as to the liability of an acceptor of a bill of exchange for the face value of such bill, to the holder in due course. That is admittedly the law and that law is so well known, that it offers an easy method for the drawer of a bill affected with equities in favor of the acceptor or tainted with fraud, in order to evade the effect of such equities or to close the door to the introduction of evidence of such fraud, to transfer it before maturity to some third person. It therefore becomes the very essence of the enquiry, when such pleas are offered by the defense, to determine whether the instrument is negotiable and whether the holder is one in due course. The evident purpose of the law-maker is to protect innocent - persons who in ordinary commercial transactions, acquire negotiable instruments, relying upon the truth of the written engagement contained therein, duly signed by the maker or acceptor. It must also be kept in view that the holder always has the means to prove the facts necessary to show that he is a holder in due course, while the proof to contradict such fact is seldom within the reach of the maker or acceptor.

The evidence in this case shows that the contract between the Lawrence Phonograph Corporation and the defendant, and the three drafts or trade acceptances are printed on one solid sheet of paper, blank spaces being left for dates, signatures and addresses. The contract is at the top of the page, double dark lines entirely across the sheet then follow, and below these is printed a guarantee also followed by' double lines. Then come blank spaces for dates, addresses and shipping direction. Then below this, are printed the three drafts separated from the contract by dark lines not perforated but extending entirely across the same sheet of paper. Defendant testified that he at first objected to sign these acceptances, but that the salesman who represented the Lawrence Phonograph Corporation, drew pencil lines across the face of each of the drafts and pursuaded him to aflix his signature on the bottom line of each draft as evidence of the fact that he had agreed to take the phonographs in order to sell them on commission. A duplicate printed blank form, showing the contract, the drafts and the pencil lines across the drafts, is contained in the record.

The drafts were severed from the sheet of paper and were sent to the Bank of Slidell for collection. The assistant cashier of that bank testifies that the drafts showed on their face that marks had been erased, that the impression of the pencil had made a dent in the paper and that it could plainly be seen that something had been rubbed out. He says that the mark could be distinguished, that it appeared faint but that the impression of the pencil down against it showed. The Lawrence Phonograph Corporation and the plaintiff are two concerns located in St. Louis, Missouri, and the defendant is a storekeeper at Slidell, Louisiana. The personnel of the two concerns is unknown,to defendant. After the maturity of the acceptances, the Lawrence Phonograph Corporation wrote defendant and that letter contains this very signficant language:

“Now Mr. Mire, all that we want is to protect our interests in the trade acceptances of yours which we hold and we must insist upon some payment being made at once.”

If the acceptances were held by the Lawrence Corporation at the time that letter was dated, then the plaintiff could only have acquired them after maturity. The letter is not for the purpose of protecting an endorsement but to protect the Lawrence Corporation as holder of the drafts.

It is true that plaintiff is not hound by the letter, but taken in connection with the apparent erasures on the drafts, all of which remains unexplained and unaccounted for by plaintiff, such evidence is sufficient to destroy the presumption that plaintiff is a holder in due course.

The district court so held and on reconsideration w'e believe the judgment appealed from should be affirmed.

It is therefore ordered that our former judgment be set aside and that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: ODOM, J. REYNOLDS, J.

license: Public Domain

text:
    No. 2337
    Second Circuit Appeal
    WILLIAM A. BLACK v. LOUISIANA CENTRAL LUMBER CO.
    (June 27, 1925, Opinion and Decree)
    (See Supreme Court Docket No. 27,743)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Pa,r. 159, 159 (a).
    Where the preponderance of evidence shows that the injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, as amended by Act 43 of 1922, can use his injured hand although the middle finger was badly injured, he is entitled to recover under Section 8, Subsection 1 (e) of the Employer’s Liability Act for one hundred weeks.
    (The recent amendment of Section 8 Act 20 of 1914 is Act No. 216 of 1924. Editor’s note.)
    2. Louisiana Digest — Master and Servant— Par. 159, 159 (a), 160 (I).
    Where the evidence is conflicting as to the effect of the injury sustained by an injured employee suing for compensation under Workmen’s Compensation Law, Act No. 20 of 1914, the finding of the trial judge, unless manifestly erroneous, will be affirmed.
    • Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E.. Jones, Judge.
    This is a suit by an injured employee for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914.
    There was judgment for plaintiff and both plaintiff and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, and appellant.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff was employed by defendant company in the capacity of conductor on its log train.

On January 24, 1924, while so employed and while at work in the course of his employment his right hand was caught between the drawheads of two cars and mashed, which, he alleges, resulted in partial permanent disability to do any work of a reasonable character, and that he cannot earn more than $10.00 per week, whereas, he alleges, he was at the time of the accident earning $42.00 per week. He asks to be allowed $18.00 per week for 300 weeks, less credit for certain amounts which have been paid to him.

Defendant, in answer, admits the employment, but says that plaintiff was receiving only $34.92 per week instead of $42.00 per week as alleged, and admits that plaintiff was injured while in the course of his employment by having his hand mashed, but avers that the only permanent injury received by him as a result thereof was partial disability of the middle finger of the right hand; and it avers that plaintiff has been paid all the compensation due him.

The lower court awarded plaintiff $18.00 per week for .100 weeks under Subsection (e) of Paragraph 1 of Section ■ 8 of Act No. 43 of 1922.

From which judgment both plaintiff and defendant have appealed.

The only question to be determined is the amount of compensation due plaintiff under the facts.

As usual, the' experts do not agree as to the condition of plaintiff’s hand.

Dr. Peters says that he examined plaintiff’s hand on October 30, 1924, and says that his examination disclosed that plaintiff had received injury to his right hand consisting of lacerations of the soft parts, indicated by several scars and a fracture of the middle finger near the proximal joint. He says there was slight deformity of the proximal phalanx, amounting to slight curvature and impairment of the extreme flexion. “He has good flexion down to the grasping point but not at the extreme flexion of the finger.”

He says that the examination disclosed and that an X-ray picture of the hand showed that there was no fracture of any of the bones of the hand, except those of the middle finger; and he was asked to state if there was any disability of the hand, except to the middle fingers and he said: “There is none — only to the middle finger of the right hand, and that only to a partial degree.”

He was further asked if he examined the other fingers of that hand, and he said that he did: “Looked very carefully into nature of the injuries. All of the scars were free. There were no adherent scars resulting from the lacerations, and there should be no disability whatever resulting from the injury. There .is no evidence of tenderness, anaesthesia, adherence, adhesions to the tendons or any other consequence of the injuries.”

He says he has as good use of the hand now as he ever had, except for the disability to the middle finger.

Dr. G. M. G. Stafford testified that he examined plaintiff’s hand in June and again on October 30, 1924.

He said he found that plaintiff had several scars on his right hand and showed evidence of a fracture of the middle finger near the palm of the hand; that this fracture considerably interfered with the motion of the finger and caused considerable disability of function;' that all of the wounds to the hand, had healed, and that there was very little, if any, injury to the hand, other than this broken finger.

He was asked if plaintiff could do work of a reasonable character, and he said:

“He could have done some work, yes, sir. I don’t know what kind of work you mean, but I believe that there is some work probably that he could not have done, but there are lots of jobs that he could have held at that time.”

And he was asked if there was any disability, so far as the hand is concerned, other than the disability to the middle finger, and he said:

“No, I don’t think so.”
“Otherwise no disability exists to the rest of the hand.”

As to the condition of this middle finger, he says plaintiff has complete extension of the finger but has not complete flexion; that he can flex it to within one-half of an inch of the palm of his hand.

Dr. P. K. Rand testified that he had examined plaintiff’s hand in April'and again about October 30, 1924, and said that he found evidences of an old injury to the right hand; that there were several scars which were entirely healed and in good condition. “There were no deformities of the hand except the, middle finger showed an old fracture with good union, but considerable deformity. He was unable to .use this finger for full function, there being limitation of flexion of the finger. The fist, or hand, when closed left this finger extending to some extent. The other digits apparently were in good condition. I would say that he had practically full function of the hand with the exception of the middle finger."

He says he saw him later in the summer and he showed some improvement, and that he was able to close the finger further and obtain more complete flexion of the finger and that he had seen him again later and his condition had further improved and that the function of his finger had greatly improved. “There can be no permanent injury to the hand as a result of the injury which I can detect, except that related to the middle finger. Its disability has grown less all the time.”

He says he had full use of all the other fingers.

On the other hand, we have the testimony of Dr. G. H. Cassity, of Shreveport, who says that he examined the plaintiff’s hand on January 9, 1925.

He says there were some scars to he noted about the knuckles of the hand and a long one down inside of the thumb. Also the first bone of the middle finger of the right hand was crooked, indicating that there had been a fracture of the bone, and “I found on further examination of this hand that he had very little grip in the hand, in fact, I would say the grip was not over one-tenth of the normal hand. He could not close the fingers down to the palm with any force; could almost touch the palm of his hand with the fingers, except the middle finger.”.

“I find the fingers have very little strength in the individual fingers.”
“I noted also that the hand sweated profusely, damp, moist, most nearly all the time.”

He says he tested the hand for strength with the ferradic current and was able to obtain slow flexion of the fingers but they did not react normally. And he says the wound to the hand caused “traumatic neuritis.” He says he could- straighten the fingers fairly well but could not bring them tight against the palm of the hand and that there was no stiffness to the fingers except the first joint of the middle finger where it articulates with the hand.

He says that there is no deformity of the hand, except to the middle finger, and that there is no noticeable inability to flex the other fingers. He explains' that the plaintiff could not pick up a load or grip anything strongly.

Dr. É. L. Sanderson testified that he had examined plaintiff on January 9, 1925, and says “the examination shows a hand that is somewhat flabby and temperature which is lower than the other hand and has a tendency to perspire. Also shows a scar on the side of the thumb and marked deformity in the phalanx of the second finger within a quarter or half an inch of where it articulates with the hand at the joint. This deformity is angular, bent forward into the palm surface of the hand. This finger is very limited in flexion; the distal phalanx has no flexion at all. There seems to be inability to flex completely any of the fingers, but the flexion of this particular finger is unquestionably limited more than the others, evidently due to the findings I made. There is apparently a marked decrease in the grip of the hand.”

And -on cross-examination he stated that insofar as the grip of the hand was con•eerned that he necessarily had to depend in a large measure upon what the patient said; and he was asked if he considered that the hand could be used for ordinary labor and he said:

“Well, I have observed this same injury-before; seen a number of cases in which this phalanx'of the finger'bulged forward as this does, and when they grip anything that angular projection .causes trouble, so that they cannot close the hand, where .that bone is set at an angle, and in closing the hand that knuckle joint hits any hard object it draws ..back, always very painful, the tendons working oyer that callous that has developed;' when you use it it causes pain; and is a serious handicap.”

And he also said with reference to the condition of the hand:

“The thumb appears to be perfectly normal, but there is apparent loss of function in the other, fingers in a marked degree, but of that I am not positive whether it is due to lack of use or whether they were injured at the time of the injury, but it is very apparent that their use is limited.”

And he says there is permanent weakness due to traumatic neuritis.

It will be seen that there are three physicians on the one side who say that there is very little if any injury at all to the hand except the middle finger and that his condition is growing better, while on the other hand there are two who say that the entire hand is injured with little hope of improvement.

Plaintiff says of his injury: “The main thing my middle finger is broken and disfigured and the rest of my hand is weak so that I can’t grip anything with it. When I do anything out of the ordinary it hurts in my hand and the pain runs up in my arm. I haven’t been able to do anything hardly, although I have used it all the time since the injury healed up on the outside.”

And he was asked:

“What have you been doing for the past few months?”

And he answered:

“I have been hauling wood from the stave mill.”

The testimony as -to plaintiff’s condition is conflicting. It is agreed by all, however, that he can open his hand and straighten his fingers, but there is disagreement as to whether he can flex perfectly the fingers other than the middle finger.

The testimony of Doctors Sanderson and Cassity is to the effect that he can flex his middle finger to within one inch of the palm of the hand. The testimony of the other doctors is that he-can flex it to within half an inch of the palm of the hand. All of the experts agree that there is no deformity of the hand, except of the middle finger. The wounds have all healed; the tendons are in good condition and move freely and easily; there are no adhesions.

Doctors Sanderson and Cassity say that the nerves were injured by the wound, and no doubt they were, but they are not dead; otherwise the patient could not use the fingers at all. The bone, muscle and tendon are uninjured. The nerves are sufficiently alive to control the muscles.

Dr. Sanderson says that plaintiff has but little grip in that hand, but he says he must depend largely upon what the patient says for his information about that.

Dr. Cassity says that he has no more grip in that hand than a five-year-old child;

In view of the testimony of the other doctors and in view of plaintiff’s own testimony, that he used the hand all the time since it healed on the outside, and that he has been hauling wood for the past few months, that statement, by Dr. Cassity sounds a little extravagant.

Plaintiff says he has no grip but he also says: “When I do anything out of the ordinary it hurts in my hand and the pain runs up my arm.”

That would not indicate that he had so little use of the hand.

The fact that defendant offered- to put plaintiff back to work in the same position and he refused to accept it cannot be overlooked. He says he offered to take a fireman’s place, provided they used oil, but he did not explain just why he would not work as a conductor, except to say: “A man has his life in his hands when he has two hands on that job and I know I. was not going to try it with one.”

He did not have to try it with one; according to his own testimony he could use the right hand to some extent, and he does not explain just why it is that he could not do the work required of a conductor .on a train of that kind.

During the progress of the trial the plaintiff was caused to exhibit his hand to the trial judge and to demonstrate what use he .could make of it. After seeing plaintiff’s hand and seeing him use it, and after considering the testimony of the physicians, he reached the concluson that plaintiff should recover under Subsection (e) of Paragraph 1 of Section 8 of the Employers’ Liability Act and was entitled to compensation for one hundred weeks.

We cannot say that our brother of the District Bench has erred.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

ON REHEARING.

REYNOLDS, J.

A rehearing was granted in this case on the application of both plaintiff and defendant.

On the rehearing plaintiff presented no additional authorities and offered no reasons other than those presented on the first hearing.

Defendant, with great zeal and earnestness, urges- that the case be remanded for additional evidence as to plaintiff’s ability at this time to do work of a reasonable character and supports its application by a number of documents, sworn to and attached to its application.

Defendant’s application would commend itself to us with much force if our decision had been grounded on the proposition that plaintiff’s injury produced partial disability to do Work of any reasonable character; but our judgment was based on the ground that the usefulness of a member or physical function of plaintiff had been seriously permanently injured, and we gave him judgment under Subsection (e) of Paragraph 1 of Section 8 of the Workmen’s Compensation Law; and having based our judgment on this ground, we do not think defendant’s allegation that plaintiff is now able to do work of a reasonable character would warrant us in remanding the case for a new trial.

The Workmen’s Compensation Law of Louisiana contemplates that judgments shall have stability and finality.

Daniels vs. Shreveport P. & R. Corp., 151 La. 800, 92 South. 341.

The judgment heretofore rendered, under all the evidence, we' think, has done substantial justice between the parties, and it is now reinstated and made the judgment of the court.


author: ELLIOTT, J.,

text:
    No. 5583
    First Circuit Appeal
    MRS. JOSEPH GALJOUR v. SUCCESSION OF LIBERAL GALJOUR
    (Opinion and Decree may be found in 1 La. App. 734.)
   ELLIOTT, J.,

DISSENTING OPINION

Mrs. Joseph Galjour alleges in her petition of opposition filed in October, 1923, that she:

“* * * from January, 1912, to August, 1913, at the special instance and request of Liberal Galjour, she boarded him, attended to his house, kept it clean and in order, washed and ironed his clothes, took care of him when sick and otherwise cared for him and his household, etc.; that like board and service was rendered him from January, 1916, to January, 1920, etc. That she understood as conveyed by him to her, that in default of payment during his life, she would be fully provided for in his will; therefore she remained satisfied awaiting his will and convenience to compensate her. That Liberal Galjour departed this life intestate in June, 1923, leaving property, a surviving wife and a large number of collateral heirs, etc.”

It is my opinion that the action is barred by the prescription of one year, C. C. Art. 3534, pleaded by the administrator against the suit. The authorities cited in his brief support his contention that the action is prescribed.

I not only think the action prescribed but, in my opinion, the claim is not proved with the certainty required by law.

The claim is for a quantum meruit which admits that no agreement existed fixing the amount of the claim. But it is for more than five hundred dollars. The law, C. C. Art. 2277, has reference to agreements; but certainly a quantum meruit claim for more than five hundred dollars cannot be proved, by evidence that is not. sufficient to establish a contract or agreement to pay more than that amount.

Not a witness, unless such can. be said for the evidence of the plaintiff-opponent, testified to anything which can be said .to directly show that Liberal Galjour owed the plaintiff for board and service as alleged. The fact that he obtained meals there, frequently stayed there at night, etc., does not show that he owed on that account when he left there greater than the offsetting presumption that when he left off taking his meals with plaintiff, ceased to require her services, contracted a second marriage and resumed housekeeping, opponent making no known claim that he owed her anything, that he had paid her all just dues on said account.

And she contends that after the death of his second wife, she recommenced boarding, rendering him services as before, and continued to do so until 1920, when he contracted his third marriage and again resumed housekeeping, owing her not only for his board and her service from the death of his first to that of his second marriage, but from the death of his second wife to his third marriage, and she remained silent, depending for payment on his will. Such silence in such a case is not natural. The evidence of opponent as to the liability left owing on said account should be corroborated. When the decedent contracted a third marriage he was nearly seventy years of age, and opponent must be held to have known, what everybody knew, that he had taken on a duty to a wife and, ordinarily speaking, had put out of his mind previous ideas about providing in his will for friends, etc. A-nd as a claim due opponent on account of boarding and services such as she claims, recoverable at law, she would have spoken out to Mr. Galjour on that subject and would not have been satisfied with a promise and admission; etc., such as she claims he made her.

Under headings: “Of-the Sufficiency of Evidehee”, “Proof of Obligations of Over Five Hundred Dollars”, “Stale Demands”, “Admissions of Dead Men”, etc., expressions of the Supreme Court such as: “To recover one must make his claim certain; to make it only probable is not sufficient”; and “Extra judicial admissions of a dead man are the weakest of all evidence since they cannot be contradicted and no fear of detection of false swearing impends over the witness”, will show the kind of proof required in cases of this kind. Hennen, pp. 524-525; Loque, pp. 245-246; Taylor, pp. 342-343; Breaux, pp. 366-367; Roehl, pp. 599 to 602; Louisiana Digest, Vol. Ill, pp. 254, 255, 256, etc.

A debt or liability, left owing, recoverable at law, is not sufficiently established in my opinion. I think opponent’s demand should be refused and rejected in toto.


text:
    No. 22,956
    First Circuit Appeal
    DARIUS M. FONTENOT v. R. L. BAILEY
    (Opinion and Decree may be found at p. 568 herein.)
   ELLIOTT, J.,

DISSENTING OPINION

I dissent from the above opinion and decree to the extent that the judgment appealed from is not affirmed.

The evidence shows that the defendant knew the location of the Anchor Sawmill tract of land. ' ■

The lines separating it from the Whitman tract are well marked and defined. He sent his men to deaden on the Whitman tract with such indefinite information that he must be supposed to have expected them to deaden without careful regard for the limits and boundary of the Whitman tract. Thy deadened about sixty acres of timber on the Anchor Sawmill tract next to the canal. Defendant knew where they had deadened and afterwards set them to cutting the deadened timber without carefully showing them the limits and bounds of the Whitman tract of land, thus leaving the way open for them to cut the timber they had deadened on the Anchor Sawmill tract.

The caution to keep off other people’s land which he gave them was not accompanied by proper and practicable steps to keep them off the Anchor Sawmill tract, the timber on which he did not own, and to keep them on the Whitman tract, on which the timber belonged to him.

The evidence shows that the defendant settled with the owners of the Whitman tract of land for the timber cut from that tract.

The timber cut from the-Whitman tract and that cut from the Anchor ■ Sawmill tract was mixed by defendant’s haulers and piled on the banks of the canal for the purpose of being rolled.into the canal and towed away.

Defendant settled with the owners of the Whitman tract for the exact number of feet that he had cut from their lands within the week after it was cut, which shows that he knew each week the number of feet that had come off the Whitman tract as well as that which had been cut on the Anchor Sawmill tract.

If plaintiff had not sequestered the logs when he did they would have been rolled into the canal and towed away. His fears were justified and he did right to sequester in the protection of his rights as owner.

Plaintiff cannot identify the particular logs belonging to him as they were mixed with logs belonging to defendant, but defendant cannot urge this to dissolve the sequestration made necessary by his own wrongful acts.

The sequestration should be maintained. The facts and circumstances do not show that the timber oh the Anchor Sawmill tract was deadened and cut inadvertently. Therefore, plaintiff should receive the value of his logs.

Defendant in bad faith is not entitled to plaintiff’s logs at the stumpage price of standing timber as if he had bought. the timber from the owner of it.

The plaintiff has the right to cut his own timber and all the profit resulted from his ownership belongs to him, and he should not be deprived from this profit.

The judgment appealed from is correct and should be affirmed.


author: ELLIOTT, J.

text:
    No. 3318
    First Circuit Appeal
    MRS. LUCILLE COUSIN REY, ET AL., v. C. HENRY CULBERTSON
    (-, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Succession—Par. 32, 36.
    Under Article 2239 of the Civil Code, as amended by Act No. 5 of 1884, forced heirs who have accepted and received an estate are not prevented from bringing suit to annul absolutely by parol evidence the simulated contracts of those from whom they have inherited.
    2. Louisiana Digest — Sales—Par. 63, 64; Evidence — Par. 27.
    Under Article 2479 of the Civil Code the presumption is that delivery of immovables accompanied the passing of the authentic act of sale.
    3. Louisiana Digest — Evidence—Par. 53.
    Where simulation is alleged by the plaintiff in order to annul an act of sale, if the evidence adduced to prove the payment of price is about evenly balanced with that adduced to support the alleged simulation, the burden of proof being on the plaintiff, the alleged simulation must be considered not proven.
    Appeal from the Twenty-Sixth Judicial District Court, Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    This is a suit to have declared as simulation an act of sale passed August 29, 1879.
    Defendant filed exception of non-joinder of proper parties defendant, no cause of action, prescription of ten and thirty years,res adjudicata' and other estoppels. The lower court at first sustained an exception no cause of action, but on appeal the judgment was reversed and case remanded, The prescription pleaded was then sustained by the lower court but on -appeal' the judgment was again reversed and the case again remanded. The lowér court after trial on the merits rendered judgment in favor of the defendant.
    Plaintiffs appealed.
    Judgment affirmed.
    (Attorneys names not available.)
   ELLIOTT, J.

This is an appeal from the Twenty-Sixth Judicial District Court, Parish of St. Tammany.

Mrs. Lucille Cousin, wife of Albert Rey; Miss Amanda Cousin; Mrs, Modeste Cousin, wife of Robert Bosarge; Allard Cousin, Guy Cousin and Ellis J. Cousin, the sole and forced heirs of their father, Armand Joseph Cousin, allege that by title before John J. Mortee, notary public, dated J-25, 1868, he acquired by purchase from Adolph Dubourg the tract of land described in their petition containing 220 arpents more or less, with the buildings and improvements thereon,. situated in the parish of St. Tammany, and that they are the owners of said property by inheritance from him as his forced heirs and as such entitled to the possession of the same.

That by .title dated August 29, 1879, he apparently sold and delivered said property to Mrs. Alice Culbertson, nee 'Cousin, widow of Henry Culbertson, deceased, for $1100.00 cash.

That for more than a year previous- to the execution of said act and at the time thereof, Armand Joseph Cousin; their, father, and the said Mrs. Culbertson were living, together in open adultery; that, said purported sate from him to her comprised his entire estate and was a pure simulation.

That Mrs. Culbertson departed this life in 1890 and their father in 1917; that C. Henry Culbertson was in .possession of . said property and disputed their right and title thereto. ’ They brought a petitory action against defendant, C. Henry Culbert-' 'son, and prayed for judgment against him, recognizing tliem as the sole and forced heirs of their father, Armand Joseph Consin, and as such the owners of said property by inheritance from him and entitled to-the possession of the same.

Defendant filed exceptions of non-joinder of proper .parties defendant, no ^cause of action, prescription of ten and thirty years, ■ res adjudicata and other estoppels, and this is the third time the case has been before us.-

On the first occasion the lower court sustained the exception of no cause of action; but on appeal the judgment was reversed and the case remanded; the prescriptions pleaded were then sustained, but on appeal the judgment was reversed and the case again remanded. The defendant, Culbertson, then filed an answer in ■ which he urges the exception of nonjoinder, res' adjudicata and other estoppels; denied that his .mother, Mrs. Alice Cousin Culbertson, had lived with plaintiff’s father in adultery as alleged by them; averred that the act from plaintiff’s father to his mother was a good and valid act, that the consideration stipulated in the act had been paid, that his sister, Alice Culbertson, and himself had always asserted ownership, of the property after the death of their mother; that plaintiff’s father had recognized their ownership as-her heirs during his lifetime;- that defendant was the owner- and possessor oían -undivided half of the property and- had no interest in the other half, and prayed for-judgment -recognizing him as the owner and maintaining him in possession of the same; that plaintiff’s demand be rejected.

The lower court, after trial on -the merits, rendered"' judgment on the merits in favor of defendant, recognizing him as the owner of an undivided half of the property, maintained him in possession, and rejected plaintiff’s demand without passing on any more of the exceptions, etc.

Plaintiffs have appealed and pray for the reversal of the judgment appealed from and for recognition as owners entitled to possession as prayed for in their petition.

Plaintiffs, previous to bringing the present suit, had brought a possessory action against C. Henry Culbertson and Francis Carriere for the property, but after trial their demand was refused on the ground that they had not had the requisite possession for that action.

We are urged in defendant’s brief in case the judgment appealed from is not affirmed on the merits to then consider his exceptions, etc. His request .waives the exceptions as far as they can be waived. The record shows that defendant’s mother, Alice Cousin Culbertson, vendee in the act attacked, left two children, to-wit, C. Henry Culbertson, the defendant, and his sister, Alice Culbertson, who became the wife of Seymour Cousin. This daughter, sister of defendant, is not before the court, and the record does not explain the situation as to her interest in the property as an heir of her mother. We notice in the transcript a paper which purports to be a minute entry of the late Sixteenth Judicial District Court -in and for the Parish of St. Tammany,' and to show -a judgment rendered in favor of Mr. and Mrs. Seymour Cousin agajnst A. J. Cousin and Henry Culbertson, “decreeing that' the ' transfer from Alice Culbertson to Henry Culbertson -of the undivided half of the property by ' act before Máxime Cousin, notary public, dated December 25, 1892, and the transfer of the whole property from Henry Culbertson to A. J. Cousin by act passed before Máxime Cousin, notary public, on December 29, 1892, to be a simulation as to said half and as such null and void, and that Alice Culbertson, wife of Seymour Cousin, was the true and legal owner of said undivided half of said property”. But the paper cannot have any effect. It bears some filing mark; but it cannot be of the date it purports to have been filed; it does not bear any suit number or certificate that it was copied from the minutes of said court; nothing indicates that a judgment corresponding thereto was signed; and note of testimony does not show that the paper was offered in evidence. It ought not have been placed in the transcript. On the trial defendant offered in evidence a suit entitled Mr. and Mrs. Seymour Cousin vs. A. J. Cousin and of Henry Culbertson vs. A. J. Cousin, which was objected to by plaintiffs on the ground that the records offered could not be found and were lost. In reply to plaintiff’s objection defendant stated that he had seen the suits among the old papers in the clerk’s office, but that it was difficult to find them and required patience and diligent search. The court ruled that if they could be found they would be admitted and filed. It does not appear that they were found; they are not in the transcript and can have no effect.

The act from Henry Culbertson to A. J. Cousin, dated December 29, 1892, contains conditions and clauses, and, considering the whole act, we conclude that it left vested in Henry Culbertson, defendant, as an heir of his mother, interest and standing under and by virtue of the act of August 28, 1879, to defend the same from the attack of simulation made on it by the plaintiffs in this suit, although it would have been better if all parties presently claiming under that act had been made parties to the suit.

The record of the succession, of A. -jL Cousin was offered in evidence by defendant, but it .is not in the transcript and, for all we know, it may have been left out of it on purpose pursuant to Act 265 of 1918.

In that connection we have before us nothing but the oral evidence in the note of testimony that plaintiffs accepted their father’s estate and received .certain property in their capacity of heirs and that they never intended to relinquish their right, if any they had, to the property involved in this suit.

Under the law, C. C. Art. 2239 (Amd. 1884 No. 5, p. 12), the estate accepted and received by plaintiffs does not prevent them bringing this suit. The cases, Stokes vs. Shackleford, 12 La. 170; Griffing vs. Taft, 151 La. 442, 91 South. 832; Berry vs. Wagner, 151 La. 456, 91 South. 837, do not apply to this action. Coming now to the merits of the' case, an authentic act executed and signed more than forty years before it was brought in question is alleged to be and to have been at the time it was passed a pure simulation. Mrs. Alice Culbertson, defendant’s mother, second wife of A. J. Cousin, died in 1890, about thirty years before this suit was filed, and A. J. Cousin in 1917, aboxjt three years before. The date of the title from Adolph Dubourg to A. J. Cousin, recitals in the act and the date of his first marriage, indicates that the property was an acquisition of the community which presumably existed between A. J. Cousin and plaintiffs’ mother. Therefore, if the title of August 29, 1879, was a simulation, and if A. J. Cousin was divorced from plaintiffs’ mother, she could, acting timely, have accepted the community and brought suit to have the simulation decreed, but she did not do it. She may have renounced the community. No judg-ment of' divorce was offered in evidence; , 'but Henry Culbertson testified that his mother-'ánd A. J.-Cousin were ■ married in. Covington in 1885. The marriage is not disputed; -consequently he must have been divorced from plaintiffs’ mother previous to his marriage to defendant’s mother.

According to plaintiffs’ witnesses for themselves,"Mrs. Culbertson was portress in a school building in New Orleans in 1878. Just when this employment terminated is no't established; except they testified that she afterwards lived- '-.Jh a room of a" house belonging to Mrs. Delanotte and took in sewing as a means of employment, and was ■ so engaged when she moved from New Orleans to the property on ' Bayou Lacombe.

Plaintiffs contend that her employments, appearance, -manner of dress and way and place of' living indicated and establishes that she did not have $1100.00 in cash in 1879 with which to pay for the property in Bayóü Lacombe. Plaintiffs further testify that, although their father placed the title in her name in 1879, that she did not leave New' Orleans to live on the property until 1882, and contend that under the law, C. C. Arts. 1921 and 2480, a presumption of simulation exists on tlr account. '

But the act whereby she. obtained title was passed before Edmund Augustus Peyrous, notary public, and is in authentic form, and the presumption is that delivery accompanied the authentic act. C. C. Art. 2479. She could have taken actual possession of the property and maintained it' without going to live on it and may have done so; the evidence does not show whether she did or not,

Henry Culbertson, defendant, testifies that his mother and A. J. Cousin did not live together until they were married in 1885;. that his mother had lived at Bayou Lacombe. -before she went to New Orleans and had owned a stock of, cattle branded C. A, C., inherited by her from, her father, Caesar Adplph Cousin, and that she could have paid $1100.00 cash for this property in 1879.

He further testified that his mother was the daughter of Caesair Adolph Cous'in and of Mary, or Marie, Anderson Cousin, and that his grandfather, Caesair Adolph Cousin, left money and property to Mary, or Marie, Anderson Cousin, defendant’s grandmother, in the name of Armand Cousin, and that after -the death of his mother he received about $7000.00 in money and property as one of the heirs of his grandmother, Mary, or Marie, Anderson- Cousin. His statement that Mary, or Marie, Anderson Cousin was pretty well fixed financially is corroborated to some extent by Mrs. Lucille Rey; see her testimony, pp. 23 to 37, and further corroborated by a title offered in evidence from Armand Cousin to Mary, or Marie, Anderson Cousin, passed before Anatole Bosque, recorder, for 640 races of land situated in the parish of St. Tammany, bearing date May 12, 1876; the act recites that Armand Cousin had acquired the property by inheritance from Caesair Adolph Cousin, and the price of the transfer is said in the act to have been $300.00 paid out of the presence of the recorder.

Defendant had a sister, Alice Culbertson, wife of Seymour Cousin, and the evidence show's that his mother had a sister, but does not show whether they received anything from the estate of Mary, or Marie, Anderson Cousin or not. But evidently, if defendant received approximately $7000.00 as his share of his grandmother’s estate, it would be unreasonable, even supposing his mother to have died before her mother, to conclude that the sum of $1100.00 could not have been paid to A. J. Cousin for the property in question in 1879.

All persons in position to know whether or not the act of August 29, 1879, was a simulation have passed away.

Mrs. Lucille Rey, wife of Albert Rey, witness for herself and the other plaintiffs, was about ten years old in 1879. Allard Cousin, another plaintiff and witness, was either a little older or younger than Mrs. Rey. Virginia Cousin, another, was evidently about ten years old at that time. Modeste, wife of Robert Bosarge, was about the same age.

Mrs. Eugenia Albrier, sister of Mrs. Virginia Cousin, was about fourteen years old at that time. Robert Bosarge was scarcely grown in 1879. It is evident from the testimony that these witnesses have stated their beliefs and facts as they understood, but they do not known and have not testified to any fact from which we can safely say that the $1100.00 said in the act from A. J. Cousin to Mrs. Culbertson to have been paid in cash was not in fact paid as stated in the act.

Henry Culbertson, defendant, was about ten years old at the time; being with his mother, he is likely better posted as to the fact of payment than the plaintiffs, who were not so well informed as to their father’s acts, etc. The record shows that as far back as 1882 taxes were paid on the property in the name of Mrs. Culbertson; how it was assessed from thence back to the time the act of sale in question was passed; the evidence does not show. A. J. Cousin recognized the title of August 29, 1879, in his dealings with defendant and his sister.

The act from A. J. Cousin to Francis Carriere has been noticed but we do not think it has bearing on the issue. A. J. Cousin could not transfer what he did not have.

The evidence in the case establishes in our mind but a suspicion against the act from him to Mrs. Culbertson, but does not satisfy us that it was a simulation.

In Carter vs. McManus, 15 La. Ann. 641, brought under C. C. Art. 2444, the Supreme Court said:

“These circumstances at most create but a suspicion against the payment of the price and make in favor of the plaintiff but a doubtful case. Such evidence is too uncertain to justify the courts in taking an estate from one man and declaring it to be the property of another.”

In Moore vs. Wartelle, 39 La. Ann. 1069, brought under C. C. Art. 2444, the Supreme Court said:

“The law does not favor actions of this character. It imposes on the plaintiff the burden of adducing convincing if not irresistible proof to undo the acts of their deceased parent, but it may not leave them without some remedy in proper cases of undue advantage.”

The above cases are cited with approval in the late case of Blackman vs. Brown, 155 La. —, May 24, 1924. All facts and circumstances considered, the evidence adduced in support of the payment of the price, weighed against that adduced to support the alleged simulation, leaves the question about evenly balanced, and the simulation is not established. The opinion of the lower court is, in our opinion, correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed; that the plaintiffs and appellants pay the cost of both courts.


author: WESTERFIELD, J.

text:
    No. 10,101.
    Orleans
    P. E. LEAKE v. A. PARSON, Appellant
    (September 28, 1925, Opinion and Decree)

      (Syllabus hy the Court.)

    1. Louisiana Digest—Sales—Par. 166, 168; Obligations—Par. 138.
    In the absence of fraud or other fatal objection, the parties to an agreement must be held to their contractual obligations.
    Appeal from the First City Court of the City of New Orleans, Section “A”. Hon. W. Alexander Bahns, Judge.
    This is a suit to collect the balance of wages sold to the plaintiff.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. A. Porteous, Jr., of New Orleans, attorney for plaintiff, appellee.
    Jas. B. Noell, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff alleges that he bought and defendant sold for ‘$100.00 wages earned by defendant and due him by his employer, the Illinois Central Railroad Company, amounting to $110.00. He sues for that amount, claiming that defendant collected the wages sold him without accounting to him therefor.

Defendant admits receiving $100.00 from plaintiff and the entire controversy is concerning the remainder of $10.00 claimed by defendant.

It is argued that the alleged sale of wages was in reality a loan at a usurious rate of interest. We find no support for this contention in the record. Moreover, the contract between the parties contains the following:

“This is an absolute and unconditional sale of said account and is not a loan or advance of money.”

It is admitted that at the time the $100.00 was paid, defendant there was due him as earned wages the sum of $110.00, hence Act 5 of 1906 prohibiting .the sale of unearned wages without the consent of the employer has no application. There is no denial of the claim that defendant collected the wages assigned and failed to deliver to plaintiff. We agree with the learned trial judge who found for plaintiff as prayed for.

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


author: CLAIBORNE, J.

text:
    No. 8975
    Orleans
    STATE EX REL. CHARLES FOURROUX v. BOARD OF DIRECTORS OF THE PUBLIC SCHOOLS FOR THE PARISH OF JEFFERSON AND J. C. ELLIS, SUPT., Appellants
    (Oct. 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 13.
    A court must notice ex officio its want of jurisdiction ratione materise; a judgment rendered in such a case is null.
    2. Louisiana Digest—Courts—Par. 115.
    The District Courts of this State have jurisdiction of all cases where civil rights are involved, and where no specific-amount is in contest.
    3. Louisiana Digest—Education—Par.' 7.
    The Parish Superintendent of Public Schools alone has the right to issue a permit authorizing a pupil to attend school in an adjoining parish.
    4. Louisiana Digest—Education—Par. 6.
    The Parish School Board has no right to order him to issue such a permit.
    5. Louisiana Digest—Education—Par. 6, 7.
    Such a permit can issue only in case adequate schools of suitable grade have not been provided in their home parish.
    6. Louisiana Digest—Courts—Par. 1.
    Courts cannot control officers in' the exercise of discretion conferred by law except in case that discretion is exercised in an arbitrary or illegal way.
    Appeal from Twenty-eighth Judicial District Court for the Parish of Jefferson, Hon. H. N. Gautier, Judge.
    This is a suit for a mandamus to order the Parish Superintendent of the Public Schools for the Parish of Jefferson to issue a permit to enable his son to attend a public school in the Parish of Orleans. There was judgment for plaintiff in the District Court.
    Plaintiff, relator’s petition dismissed.
    L. Robert Rivarde, of New Orleans, attorney for relator, appellee.
    John E. Fleury and A. T. Higgins, of New Orleans, attorneys for respondent, appellant.
   CLAIBORNE, J.

Plaintiff applies for a mandamus to order the Parish Superintendent of the Public Schools for the Parish of Jefferson to issue a permit to-enable his son to attend a public school in the Parish of Orleans.

Relator alleges that he is the father of Charles Fourroux, Jr., aged 14 years; that his son has been attending the public schools in Kenner, Parish of Jefferson, for several years; that on account of the advanced studies and desiring to complete the education of his son he has applied to the School Board for the Parish of Jefferson for a permit to enable his son to attend the Warren Easton High School of the City of New Orlans; that at a meeting said Board held November 3, 1922, a resolution was adopted granting said permit; that the Superintendent of Public Schools, J. C. Ellis, has refused to issue said permit; that it is the ministerial duty of the Superintendent to carry out the instructions of the School Board and for that purpose a mandamus is necessary and a mandamus is also necessary to order the School Board to compel the Superintendent to execute its orders.

The defendant, Ellis, pleaded that the court was without jurisdiction. This exception was not pressed in argument, but must be considered, as want of jurisdiction must be notieéd ex officio, and a judgment rendered by a court without jurisdiction, ratione materise, is null. 2 La. Dig. 425, S. 12. But the court had jurisdiction. Sec. 35, p. 48 of the Constitution grants District Courts, throughout the State, the Parish of Orleans excepted, “original jurisdiction in all Civil matters regardless of the amount in dispute * * * and in all cases where * * * Civil or political rights are involved, and in all cases where no specific amount is in contest”. Sec. 6, p. 2—Scott vs. President of the Police Jury, 46 La. Ann. 278, 14 South. 521; Sentell vs. Police Jury, 48 La. Ann. 96, 18 South. 910; Mouton State ex rel. vs. Judge, 49 La. Ann. 1535, 22 South. 761.

The other exceptions have not been pressed, except that of no cause of action which will be considered on the merits.

For answer Ejlis denied that the Board of School Directors had any voice in the matter of the issuance of the permits demanded by relator; that relator attended the Public Schools in Kenner for several years and was regularly promoted from the seventh to the eighth grade where he became a pupil; that he refused to issue the permit for the reason that the School at Kenner, which relator’s son attended, was an adequate school of suitable grade and because he was authorized to issue said permits where such conditions did not exist; that the Board of School Directors passed a resolution granting said permit, but that the law did not vest in said Board any power to issue said permits or to order such permit to issue; that under the law the Superintendent is vested with exclusive power to issue said permit.

There was judgment for relator against both defendants and J. 0. Ellis the superintendent, alone has appealed.

in a well-considered written opinion the District Judge came to the conclusion that the School Board had authority to • review the action of thte School Superintendent in refusing to grant the permit, and if, in their judgment, the action of the Superintendent was error, that they could order him to issue the permit.

We cannot agree with him.

The law on the subject is contained in Act 100 of 1922, p. 204:

Sec. 17 creates a Parish School Board for each Parish, and makes it a body corporate; the subsequent sections provide for the election, and qualifications of the members of the Board, and define their duties and rights. Nowhere is any mention made of the right of the Board to issue permits, or to order permits to be issued, such as are demanded in these proceedings.

Section 19 provides that: “Each board shall elect or appoint a Parish Superintendent of Schools, having such qualifications as may be fixed by the State Board of Education for a period of four years.” Sec. 43 and others following prescribe the duties of the Parish Superintendent which appear to be quite numerous and different from the duties of the School Board; and section 47 creates him Secretary of the Board and section 51, its Treasurer, and defines his duties as such. Section 48 provides that if any teacher becomes incompetent, the superintendent shall report the fact to the Board for such action ' as the case might warrant. Sébtion 54 áuthórizes the principal of a school to suspend a pupil subject to the appeal of the Parish Superintendent whose decision shail tie final.

Section 59 applicable to the present controversy reads as follows:

“Children for whom adequate Schools of suitable grade have not been provided in their home parish may attend schools in an ádjoining parish. In such cásés permits shall he secíired from the Parish Superintendent of the children’s home parish, and after they have been approved by the Parish Superintendent of the Parish in ■which the schools that the, children desire-to attend are located they; shall be' pre-. sented to the principals ’ of the schools which the ■ children wish to attend,, who shall be required to - admit the', children and provide for their instruction the same as if they were residents of the Parish.”

. The same, provisions are repeated in the next paragraph relative to .children living, beyond the limits of a city which supports and' operates public schools sepafate and apuit from the system of schools under the ' jurisdiction of the Parish School Board. ‘ '

It will thus be seen that, the Parish School Board, and the Superintendent. of the Public Schools are treated as. separate and ‘ different persons and are vested with different rights and subjected to different' duties and obligations separate and distinct. The functions of each are -clearly defined.

‘ It is ■ not for us to inquire into the reasons for that difference. But- without going-far it might be that the legislature was of the opinion that the Superintendent, on áccount of the qualifications -required of him by Sec. 19 of the Act, was better able to decide whether “adequate schools of suitable grade” had been provided, than the members' of - the School Board whose only qualifications for the office were under Sec. Í7, to be abie to read and write and assessed for not'less than $500”.

‘ When the law prescribes, that “permits shall be' secured from the Parish Superintendent” we cannot substitute, in his place the Board of School Directors.

The law evidently confers upon /the; Superintendent the discretion .to decide lipón the presence of “adequate schools'of suitable grade”. When the law authorizes an officer to do or not- to. do. a certain act which in his -judgment should be done or riot done, the court cannot substitute its own judgment to thaf of the officer and take his place, unless the action of-the officer is manifestly illegal, or arbitrary. That question was ventilated by this - Court in the recent case- of State ex rel. vs. Ray.

" There is no evidence in this case that the action of the Superintendent was arbitráry or illegal. The evidence is that relator’s son’ had passed the elementary course of studies, or fhe seventh grade, and that he waá - entitled to enter a high school or'one teaching'the eighth grade.

The evidence'is that'there was in -the City of Kenner a high school, or a school' of the • eighth,-- ninth, tenth and eleventh grades, and that relator’s - son had actually entered the eighth grade thereof, but had discontinued his • attendárice because- he found fault with the teachers and with the administration -of the school.

There were 16 pupils in the eighth grade, 9 in the ninth, 3 in the tenth, and 5 in the eleventh grade. This testimony showed that there were “adequate schools of suitable grade” to meet relator’s demands.

But relator’s petition, disclosed no cause of action. He did not solicit the “permit’.’ for the want of “adequate schools of suitable grade”, which’ was the only reason recognized by ' the law' to permit him to enter the school of an adjoining parish.

He alleged .that it was on account “of the advance studies- and desiring to complete the education of his said, child”. This was not a. reason for the permit. It is evident that he wanted the permit because he preferred the Warren Easton School to the Kenner School,, and that the law will not permit.

It is therefore ordered that the judgment' herein against J, C. Ellis, ^Superintendent of. the Parish’ Public School be reversed and set aside - and that relator’s petition as- .against him -be. dismissed at relator’s cost in both, courts.


author: BELL, J.

text:
    No. 8979
    Orleans
    THE ROSS MILLING COMPANY v. LEONARDO GILIBERTI
    (October 5, 1925, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest—Obligations—Par. 74, 76; Sales—Par. 166, 167.
    In the absence of fraud or error, a clause in a written contract of sale stipulating against any verbal condition or warranty tending to modify the contract should be strictly enforced between the parties or their agents.
    2. Louisiana Digest—Evidence—Par. 58; Sales—Par. 285.
    Where the sole defense in suit upon a contract involving the sale of a commodity is that the seller warranted its fitness for manufacture of a specific product, the party so pleading must establish such special defense by a preponderance of evidence or else pay the damages suffered for his rejection of the shipment.
    (Civil Code, Arts. 1934, 2232, 2276. Editor’s note.)
    Appeal from the Civil District Court of the Parish of Orleans, Division “F”. Hon. Percy Saint, Judge.
    This is a suit upon a contract resulting in a loss suffered by the plaintiff,-the cause of defendant’s rejecting of a shipment of merchandise.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    P. E. Edrington, Warren V. Miller, of New Orleans, attorneys for plaintiff, appellee.
    Scott E. Beer, of New Orleans, attorney for defendant appellant.
   BELL, J.

This suit is upon a contract resulting in loss suffered by plaintiff because of defendant’s rejection of a certain shipment of “Magnolia” flour, sold defendant by plaintiff’s agent at New Orleans, under a written contract there executed, said contract having been subsequently confirmed by the president of the corporation at Ottawa, Kansas. Defendant admits the contract and that he rejected the shipment, and avers as his sole defense that the flour was unfit for the manufacture of macaroni, the purpose for which it was purchased; that plaintiff’s agent at New Orleans knew the-" purpose for which the flour had been ordered, and willfully misrepresented to defendant that it could be so used, thus inducing him to purchase the brand referred to.

There was judgment for plaintiff in the full sum claimed, to-wit, $1205.21. No contention has been made on behalf of defendant and appellant as to the quantum allowed. The case is, therefore, resolved into a simple question of fact as to whether the representation contended for by defendant was actually made by plaintiff’s agent, with intent to deceive the defendant, or fraudulently induce him to purchase the flour. The contract before us is in the form known as the “Millers’ National Federation Uniform Sales Contract”, the first and dominant printed clause of which reads as follows:

“The Ross Milling Company, of Ottawa, Kansas, sell (s) and L. Giliberti buy (s) the following commodities, subject to the terms and conditions stated herein and printed on the back hereof, which terms and conditions are binding on both parties to this contract and cannot be modified except by written consent of both parties, and no verbal conditions, warrants or modifications are valid.”

Timely objection was made at the incipiency of the trial of this case to the introduction of any verbal testimony tending to show warranties or guarantees not contained in the written contract. The case might have been greatly simplified by what we believe would have been a proper maintenance of this objection, there being no material allegations of fraud or error in defendant’s pleadings. (Oliver vs. Hedden, 4 Orl. App., 367; Succession of Welsh, 111 La. 801, 35 South. 913; Pease vs. Fitzgerald, 161 Pac. 506; Tockstein vs. Pacific Kissel Kar Branch, 164 Pac. 906). However, the learned judge of the District Court saw fit to admit all evidence as to the alleged warranty by the plaintiff’s agent, and has concluded, after considering the lengthy testimony taken in this case, that no such warranty was given. The burden of establishing such a defense was upon defendant. (R. C. C., Art. 2232; Palfrey vs. Stinson, 11 La. 77; Pagett vs. Curtis, 15 La. Ann. 451; Scovel vs. Gill, 30 La. Ann. 1207.) His own testimony is the only affirmative evidence to the effect that plaintiff’s agent verbally guaranteed the flour for use in manufacturing macaroni. The agent, on the other hand, swears that no such guarantee was ever made. No evidence was offered corroborative of defendant’s contention. In other parts of his testimony he swears that he was made to sign the contract, thus implying duress, which has not been pleaded, and also that he did not know its contents because he could not read or understand the English language. Such excuses are, of no avail. (Bagneris vs. Oddo, Orl. App. 7471; DeSoto Building Co., Ltd., vs. Kohstamm, Orl. App. 7627.)

By record admissions it is shown that defendant was placed in default several times after the timely arrival of the shipment at New Orleans and before its resale by plaintiff, who attempted to minimize the loss. It appears that defendant failed to respond to these notices or to honor the sight draft, with bill of lading attached, or to notify within reasonable time, plaintiff or its local agent, that the flour was rejected because not up to the alleged warranty. We finally note that without examination or inspection of the shipment defendant attempts to justify its rejection upon the assumption that it was unfit for the purpose intended, because another local dealer, with whom he formed a partnership several months afterwards, also purchased flour of the same brand from the plaintiff company and had found it unsatisfactory for the manufacture of macaroni.

There is nothing in the contract itself which discloses the purpose for which the flour was to be used. The evidence shows that, at the date of sale, defendant was not a manufacturer of macaroni, but sold flour in connection' with his retail grocery business, and also to those engaged in the bakery business. Both the president of the plaintiff corporation and its local agent testified that flour of the same brand as that sold to defendant had been sold and used in New Orleans and elsewhere for macaroni purposes, and it was of high gluten content, even higher than other brands shown by these witnesses to be satisfactory for manufacturing macaroni. There is abundance of proof that a sharp decline in the flour market occurred shortly after defendant’s purchase and continued beyond the date at which the shipment was resold. This fact may or may not have induced the defendant to reject the shipment. We are, however, unable to find any just or legal grounds for his action. There is nothing before us which satisfactorily supports the special defense pleaded in this case.

The judgment appealed from is correct and should be affirmed.


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    No. 9000
    Orleans
    SARAH WHITE JONES, Appellant v. CRESCENT CITY ICE MANFG. CO.
    (October 12, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)

      (Syllabus ~by the Court)

    1. Louisiana Digest—Master and Servant— Par. 160 (e), 160 (i).
    When the District Court is without jurisdiction of a case, ratione materise, the judgment rendered hy it is a nullity and may he attacked at any time and under all circumstances.
    2. Louisiana Digest—Master and Servant— Par. 154, 156.
    The state courts of Louisiana have no jurisdiction of an action brought under the Employers’ Liability Act No. 20 of 1914 when plaintiff sustained injuries while employed on a ship.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    This is a suit for compensation brought by an injured employee under the Workmen’s Compensation Law, Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed for the want of jurisdiction of the state court.
    J. A. Morales, of New Orleans, attorney for plaintiff, appellant.
    J. C. Henriques, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff alleges that Warren Beasley was employed by the defendant to drive motor trucks from its plants to various sections of the city, also to load and unload large blocks of ice; that on October 14, 1921, he was directed to carry a load of ice and to deliver same to the ship “Garry”, and that while so engaged upon the ship unloading the ice into the bunkers of said ship one of the blocks of ice fell upon him injuring him so severely that he died on December 3, 1921; that the said Beasley left as only heir his minor son, Eleek Beasley, to whom petitioner was appointed as tutrix; that under the law said minor is entitled to compensation for the death of his father.

Plaintiff prays for judgment for $1990.00. The • defendant excepted to plaintiff’s petition on the ground that the Civil District Court had no jurisdiction of this claim ratione materiae. It also filed an answer on the merits.

The case was tried upon the exception and merits, and judgment was rendered in favor of the defendant upon the ground that the accident did not happen to the deceased during the course of his employment.

In this court the defendant insists upon his exception of want of jurisdiction. We are bound to notice the exception, for if the District Court was without jurisdiction of the case then the judgment rendered by it was a nullity and could be attacked at any time and under all circumstances. Flanagan vs. Land Development Co., 145 La. 843, 849, 83 South. 39; No. 9802 Orl. App.

In the case of Messel vs.' Foundation Co., No. 8831 Orleans Appeal, this court decided on February 2, 1925, after a full review and citations of cases decided by this court and by the Supreme Court of this state and of the United States, which it would be a work of supererogation to repeat, that the state courts of Louisiana had no jurisdiction of an action brought under the Employers’ Liability Act of 1914 when plaintiff sustained injuries while employed on a ship. See Nos. 8772 and 9095 of this court.

Krerejinski vs. Great Lakes, 67 L. Ed. 756; Washington vs. Dawson, 68 L. Ed. 646.

We see no reason or authority to recede from these opinions.

The judgment of the District Court- upon the, merits is therefore a nullity and must he reversed.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it js now ordered that plaintiff’s suit be dismissed for want of jurisdiction, the costs of the District Court to be paid by the plaintiff and the costs of appeal to be paid by the defendant.

ON PETITION FOR REHEARING

The judgment herein is amended by condemning the plaintiff to pay costs of both courts, and as thus amended the rehearing is refused.


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    No. 9004
    Orleans
    DRS. YOUNG AND GERAGHTY, Appellants v. MRS. MARGARET E. BOWIE, WIDOW, GEORGE BOWIE
    (Oct. 5, 1925, Opinion and Decree.)

      (Syllabus by the Oourt.)

    1.. Louisiana Digest—Evidence—Par. 172.
    The published statutes of other states shall be received in the courts of this State as prima facie evidence of the statute laws of the states from which they purport to emanate.
    2. Louisiana Digest—Prescription—Par. 2, 64.
    Where a claim is prescribed by the laws of the state where a debtor is domiciled, it will be prescribed in this State when he removes here.
    Appeal from Civil District Court, Division “F”, Hon. Wynne Rogers, Judge.
    This is a suit for medical services. Defendant pleaded prescription under the law of Texas, which was sustained. Defendant appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellant.
    Legier and Gleason, D. V. Doussan, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for medical services.

The plaintiffs averred that they were domiciled in the City of Baltimore, Maryland, practicing medicine, that the defendant is domiciled in the City of New Orleans; that between November 16, 1917, and December 28, 1917, they rendered medical services in the City of Baltimore to George M. Bowie; he has since died leaving all his property to his widow from whom they now claim $500 as the value of said services.

The citation addressed to the defendant was served upon her on November 17, 1921, or more than three years after December 28, 1917, the date of the last service rendered by plaintiffs.

The defendant pleaded the prescription of two years under the law of Texas.

The trial judge considered the plea of prescription of two years under the laws of Texas well founded and sustained it, and dismissed plaintiffs’ suit. They have appealed.

' The facts of the case are that defendant’s husband, George M. Bowie, was domiciled in Texas; on November 16, 1917, he went to Baltimore to the Brady Institue, Johns Hopkins Hospital where he was treated by the plaintiffs, physicians; he left the hospital on December 28, 1917, and went to Florida where he spent a month, then returned to his home in Texas where he died in August, 1918, leaving his wife his sole heir; his wife continued to live at her home in Texas for two years and more after the services had been rendered, and then removed to New Orleans.

Section 5687 of Vol. 4 p. 3814 of Vernon Sayles Annotated Civil Statutes of the State of Texas reads as follows:

“(4) Actions for debt, where the indebtedness is not evidenced by a contract in writing, must be commenced in two years.”
“R. S. 1440. The published statutes and digests of other states shall be received in the courts of this State as prima facie evidence of the statute laws of the states from which they purport to emanate.” 9 Ct. App. 153; Martzette vs. Cronk, 141 La. 440, 75 South. 107.

It is evident therefore that at the time the defendant widow left Texas, plaintiffs’ claim was prescribed by two years.

In the case of Newman vs. Eldridge, 107 La. 315, 31 South. 688, the court said:

“The prescription to be applied, in any given case, is that established by the law of the forum. An exception to this rule is established by R. S. 2808 which provides that, where a judgment has been rendered in another state, between parties there residing and has become barred by the law of such state and the judgment debtor has therafter come to Louisiana, the prescription established by the law of the State a quo will be applied to such judgment in this State.”

In Walworth vs. Routh, 14 La. Ann 205, the court said, that the debtor was entitled to the benefits of Sec. 2808 only “where the defendant removes to the State of Louisiana after he has become entitled to the benefit of the plea of the statute of limitation of the place where the judgment was rendered”.

In the case of Osgood vs. Art (D. C.) 10 Federal 365, it was dedided:

“Where the laws of a state provide that when by the laws of another state or territory or foreign country, an action could not be maintained there by reason of lapse of time, it cannot be maintained in this State, ‘the removal of a debtor into this State, after residence in a foreign state sufficiently long to avail himself of the bar of the statute of limitations of that state .will not revive the cause of action in this State.’ ”

The judgment of the district court is therefore affirmed.


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    No. 9031.
    Orleans
    C. LEE McMILLAN AND CO., Appellant v. EDGAR J. MILLS
    (Oct. 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Obligations—Par. 124.
    The failure to perform an obligation within the time specified is a passive violation of the contract.
    2. Louisiana Digest—Obligations—Par. 178.
    In order to recover damages for the passive violation of a contract the debtor must be put in default.
    3. Louisiana Digest—Pleading—Par. 18, 62; Obligations—Par. 177, 178.
    Where plaintiff’s right of action depends upon the fact that the defendant was put in default he must allege the putting in default or his petition will disclose no cause of action.
    4. Louisiana Digest—Pleading—Par. 18.
    A document merely filed with a petition and at the same time, but not annexed thereto, as part thereof, forms no part of the petition.
    5. Louisiana Digest—Laws—Par. 68.
    5. 1 of Article 1933 Civil Code refers only to a thing which, by its nature, cannot be done after a certain time.
    6. Louisiana Digest—Appeal—Par. 726, 729.
    Where the plaintiff’s attorney filed a document with the petition but failed to allege that he annexed it as part thereof, or failed to allege its contents, it will be considered an oversight and the case will be remanded for a new trial.
    (Civil Code, Arts. 1912, 1932, 1933. Editor’s note.)
    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    This is a suit for damages for failure to execute a contract of sale of movables. An exception no cause or right of action was pleaded by the defendant. It was maintained and plaintiff’s suit was dismissed. Plaintiff appealed.
    Judgment reversed and case remanded for trial.
    John E. Jackson, and A. D. Danziger, of New Orleans, attorneys for plaintiff, appellant.
    A. D. Danziger, and P. H. Stern, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is an action for damages for failure to execute a contract of sale of movables.

The plaintiff, of New Orleans, alleged that on July 5, 1921, the defendant, E. J. Mills, of New York, agreed to sell to Mm 5000 bundles of cotton ties at $1.37 per bundle to be delivered 2000 in August, 2000 in September and 1000 in October, 1921; that the said ties were not delivered during August or September; that plaintiff had to buy the ties in August in open market at an advanced price of $240; and that he lost the opportunity of selling the ties in, September at an advanced price of $200, making a total of $440 which he claims from the defendant.

The plaintiff enlarged his pleadings with two supplemental petitions.

To all of which the defendant pleaded no right or cause of action.

The exception is based upon the absence of an allegation in either the original or supplemental petitions that the defendant had been put in default.

■ The exception was maintained and plaintiff’s suit was dismissed. He has appealed.

Article 1912 (1906) of the Civil Code is as follows:

“The effects of being put in default are not only that, in contracts to give the thing which is the object of the stipulation, is at the risk of the person in default; but in the cases hereinafter provided for it is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of the contract.”

C. C. 1932 (1926):

“When there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the creditor in default, in order to entitle him to his action.”

Art. 1933 (1927):

“When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.”

The putting in default is therefore a condition precedent for recovery of damages in this case. Cousin vs. Schmidt, 143 La. 848, 79 South. 427, and authorities there quoted. 5 La. Dig. p. 665 S. 178 Vo. Obligations.

What must be proved must be alleged.

When plaintiff’s right of action depends upon the fact that the defendant was put in default, he must allege it, or an exception of no cause of action will be sustained.

Erwin vs. Fenwick, 6 Mart. N. S. 235; Stewart vs. Pauling, 6 La. 151; Petit vs. Laville, 5 Rob. 118; Bailey vs. Stetson, 1 La. Ann. 332; Faisano vs. Moore, 11 La. Ann. 741; Howes vs. Steamer Red Chief, 16 La. Ann. 322; Provosty vs. Putnam, 19 La. Ann. 84; Beck vs. Flutas, 37 La. Ann. 492; Defee vs. Covington, 37 La. Ann. 659; Livingston vs. Scully, 38 La. Ann. 781; No. 3 C. N. 1146, 24 Demol. 514.

But the plaintiff argues that there are two reasons why a default was not necessary in this case.

The burden of proof is upon them to establish that defense Bailey vs. Stetson, 1 La. Ann. 332.

First, because there was an acknowledgment on the part of the defendant of his inability to make delivery under the contract, set out in the telegram attached to the original petition and filed with the pleadings in this case.

It is true that such a telegram appears in the record filed on the same day that the petition was. But no mention of it is made in the petition or in the supplemental petition.

It is not alleged that it is annexed to the petition in that it" forms part thereof. Therefore it cannot be considered.

In Tremont Lumber Co. vs. May, 143 La. 394, 79 South. 650, the court said:

“In our system of pleading, form is not sacramental, so that a petition may be composed in part of documents annexed to it and alleged to be made part of it. Recitals contained in documents incorporated into a petition in that manner are considered as made in the petition. But this is and can be true only when the- documents are actually made part of, or incorporated into, the petition and they are evidently not thus incorporated when they are merely referred to; or as the petition in this case expresses it, are merely ‘made part for reference’.
“Their contents are not then communicated to the court and to the pleader’s adversary.”

The second reason is that the necessity for a default does not exist in obligations to be performed within a specified time, according to S. 1 of Article C. C. 1933 which reads as follows:

“When the thing given or done by the contract was of such a nature that it could only be given or done within a certain time which has elapsed or under certain circumstances which no longer exist the debtor need not be put in legal delay to entitle the creditor to damages.”

But this clause refers to a thing which by its nature can be done only in a certain time. Demolombe gives for examples the obligations to renew a mortgage inscription or to exercise the right of redemption which expires within fifteen days. Pothier Obligations No. 147. We might add, the obligation to oppose an account rendered by an Administrator, or to file an answer to a citation. In other words where time is of the essence.

It is evident that the exception does not refer to the obligation of delivering goods within a certain time which may be done after that time under certain conditions.

Failure to perform an obligation within the time specified is only a passive violation and the debtor must be put in default, in order to make him liable in damages. Gobet vs. Municipality, No. 1, and City of New Orleans, 11 La. Ann. 300.

“Where the contract has been violated by not doing what was covenanted to be done within the time stipulated a putting in default is not a prerequisite to a suit in rescission. Such putting in default is a prerequisite only to the recovery of future damages.” Jennings vs. Houssiere, 119 La. 795, (831), 44 South. 481.

But if the plaintiff had annexed to his petition as part therof, the telegram in which Mills admitted his inability to comply with his contract, or if he had made the allegation to that effect in his petition, it is evident that his petition would have disclosed a cause of action.

The failure to annex the telegram or the omission to make the allegation was evidently an oversight and must not defeat plaintiff’s suit.

He must be given the opportunity to annex the document or to make the necessary allegation. Lind vs. Kracke, 8564 Ct. App.

It is therefore ordered that the judgment appealed from be reversed and set aside, and that the case be remanded to allow the plaintiff to annex the document or amend his petition in accordance with the views hereinabove expressed, and for a new trial.

The plaintiff to pay the cost of appeal ; the costs of the trial court to await the final judgment of the case.


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    No. 9078.
    Orleans
    MRS. MAGDALENA HOLZER v. WHISTLE BOTTLING COMPANY OF NEW ORLEANS; CIVIL SHERIFF OF PARISH OF ORLEANS, Appellant
    (October 19, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 40.
    No call in warranty is allowed when - no privity of contract exists between plaintiff and proposed warrantor.
    2. Louisiana Digest—Execution—Par. 169.
    There is no error in a judgment which compels the sheriff, after due proceedings taken, to pay to the seizing creditor a surplus remaining in his hands after costs approved by the court have been satisfied. »
    Appeal from the Civil District Court, Division “B”, 141824. Hon. M. M. Boatner, Judge.
    This is a suit in which the sheriff erroneously paid money to a garage for storage. The sheriff called the storage garage in warranty.
    There was judgment condemning the sheriff to pay the assignee of the seizing creditor the amount which he had erroneously paid the storage garage and also dismissing his call in warranty.
    The sheriff has appealed.
    Judgment affirmed.
    A. M. Buchmann and Louis Yarrut, of New Orleans, attorneys for plaintiff, appellee.
    Geo. Montgomery and W. 0. Hart, of New Orleans, attorneys for plaintiff, appellee.
   BELL, J.

The civil sheriff for the parish of Orleans, appellant herein, con-, tracted with the Sutter Motor Company of New Orleans for storage of certain auto trucks, etc., belonging to the Whistle Bottling Company, defendants in the above entitled suit, for provisional seizure.

James A. Demarest appears from the record to have become the assignee and subrogee of the seizing creditor, Mrs. Magdalena Holzer, and as such obtained judgment in the sum of $2000.00, with interest, attorney’s fees and costs. The property on the leased premises, as well as that in storage with the Sutter Company, having been sold in satisfaction of the writ, the sheriff took a rule against Demarest to tax, as part of the costs, the bill of the Sutter Company for storage, which amounted to $160.00. There was judgment against Demarest, and in favor of the sheriff, for only $100.00 of this amount. Demarest in turn, ruled the sheriff to show cause why the sum of $60.00 in the sheriff’s hands, over and above the $100.00 allowed by the court for storage, should not be paid to Demarest toward the satisfaction of the judgment, interest, costs, etc., obtained by him as plaintiff and assignee in the main action. To this latter proceeding the Sutter Company appeared by way of intervention, alleging that it had never been made a party to the sheriff’s original rule to tax its bill of costs against Demarest, and that it was entitled by priority to this fund of $60.00 as the unpaid portion of its storage bill contracted by the sheriff. It accordingly prayed that the Demarest rule be dismissed, and that the sheriff be directed to pay intervenor the balance in his hands, to-wit, the $60.00. The sheriff thereupon filed additional pleadings in the matter of the rule by Demarest against him. These pleadings he styled “Supplemental Answer and Call in Warranty”. It was therein alleged as follows:

“That, through error, he paid to the Sutter Motor Company, as costs herein, one hundred and sixty dollars, when the court had fixed its claim at one hundred dollars, but to the rule so fixing it, the said Sutter' Motor Company was not a party; therefore, is a necessary party to the rule of plaintiff as a warrantor of this appearer in the event the court should order this appearer to pay to the plaintiff sixty dollars as claimed.”

To the call in warranty, the Sutter Company filed exceptions of no cause of action* and at the same time and before hearing of the Demarest rule, the Sutter Company, by written motion and order, withdrew its previous petition of intervention. After due hearing of the Demarest rule the court rendered judgment making said rule absolute, and condemning the sheriff to pay the $60.00 in dispute to Demarest, and also dismissing the call in warranty at the sheriff’s cost. From this judgment the sheriff has appealed.

From the facts, as above stated, it is plain that there was no privity of contract whatever between Demarest and the Sutter Company, and it therefore follows that the exception of no cause of action filed to the sheriff’s call in warranty was well founded and properly maintained. C. P. 378.

The Sutter Company is not a party to the appeal now before this court, nor could it be. Inasmuch as its petition of intervention has been withdrawn and the call in warranty filed by the sheriff has been properly dismissed, it results that said company is not a litigant in these proceedings. We are not concerned with what rights it may have, if any, against the civil sheriff.

We find no error in the judgment appealed from.

There is no dispute but that there was a surplus in the hands of the sheriff to the extent of $60.00, and that under the main judgment rendered in favor of Demarest, in the provisional seizure suit here involved, the trial court had nothing else to do but to direct the payment of this surplus to the seizing creditor.

. It is ordered that the judgment appealed from be and the same is hereby affirmed at appellant’s cost in both courts.