author: STEPHENS, J. TALIAFERRO, J.

text:
    No. 4163
    Second Circuit (Second Division)
    SMITH (for the Use of Exchange Bank) v. TOLER
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Granted.)
    (May 4, 1932. Opinion and Decree on Rehearing.)

      Phanor Breazeale and Hughes, of Natchitoches, attorneys for plaintiff, appellant.
    - S. R. Thomas, of Natchitoches, attorney for defendant, appellee.
   STEPHENS, J.

This is a foreclosure proceeding, via ordinaria, instituted by G. P. Smith, for and on behalf of the Exchange Bank of Natchitoches, against T. B. Toler, wherein plaintiff seeks to recover the sum of $1,000, with interest and attorney’s fees, alleging such amount to be due on a note given in representation of a portion of the purchase price of certain property purchased by the defendant from plaintiff. The plaintiff’s petition with reference to said note reads as follows:

“The second note for the purchase price, to-wit: Fifteen Hundred ($1500) Dollars, was due and payable on January 1, 1928, with interest at eight per cent from its maturity until paid and ten per cent attorney’s fees, if placed in the hands of an attorney for collection. To secure the payment of the said note due January 1, 1928, a vendor’s lien and privilege and special mortgage was. retained by petitioner and granted by the vendee on the property sold, and said note is paraphed ‘Ne Varietur’ by .the Notary for identification with the act of sale.
“It was further agreed in such sale that there was a pending suit between the heirs of Dwyer and petitioner, that, should the plaintiffs in that suit be successful, then the sum of Five Hundred ($500) Dollars, was to be deducted from the note and said note for $1500 was so endorsed. It appeals that the decision in the Dwyer suit was against your petitioner and thus, under the .terms of the deed and the endorsement on the note, the same should be credited with $500, leaving a balance due Toler on the note, of One Thousand ($1000) Dollars.”

It is then alleged in the petition that pri- or to .the maturity of the note it was pledged by Smith to the Exchange Bank.

The defendant, in his answer, admitted the purchase of the property by him, and alleged that the consideration was the sum of $6400 of which $600 was paid in cash; a mortgage held by the Federal Land Bank of New Orleans for .the sum of $2700 was assumed by the vendee; and for the balance of the purchase price he executed two promissory notes, one for the sum of $1600, due and payable’January 1, 1927, and one for the sum of $1500 due and payable January 1, 1928, both conditioned to bear 8 per cent per annum interest from maturity. He alleged payment of the first note in full. He further alleged an agreement that the last-mentioned note should be reduced by the sum of $500 in the event his vendor lost a suit then in contest with one John Dwyer, and that the balance thereof might be paid on its due date by sufficient timber, if still on the land sold.

Defendant further answered, alleging that a short time after the execution of the deed he advised his vendor, G. P. Smith, plaintiff herein, that he desired that the note for $1500 be extinguished and paid by the timber on the land, none of which had been cut by defendant, in accordance with the agreement contained in the deed; and that the said Smith accepted said timber and cut and hauled, or caused to be cut and hauled, from said land, a certain portion thereof, which was so taken and received in compliance with the agreement contained in the deed above referred to. Defendant further alleged that the timber situated on the land belonged to G. P. Smith, who had exercised ownership thereof, and that said Smith had the right of ingress and egress at all times to cut and remove the same, and that such right was extended to the Exchange Bank if it were the holder or the pledgee of the note.

Defendant prayed in reconvention that the note sued on, having been extinguished, should be canceled, and that any evidence thereof should be erased from the mortgage record of Natchitoches parish.

A trial of the case resulted in a judgment rejecting plaintiff’s demands and ordering the mortgage given to secure the payment of the note sued on canceled and erased. From .the judgment so rendered, the plaintiff prosecutes this appeal.

On October 23, 1926, G. P. Smith sold to T. B. Toler certain property, real and personal, for the recited consideration of $6,-400, payable as follows: $600 cash; the assumption by the vendee of a $2,700 mortgage held by the Federal Land Bank of New Orleans; and two notes, one for the sum of $1,600 due January 1, 1927, and one for the sum of $1,500 due January 1, 1928.

It is conceded that the defendant has discharged his obligations arising from the transaction promptly as they matured, with the exception of the payment of the $1,000, representing the balance due on the $1,500 note; and his position as to that amoiint, as set up in his. answer, is that it has been extinguished by the transfer by him and the acceptance by the plaintiff of the timber on the land sold.

Pertinent facts developed during the trial of the case are as follows: Á few weeks after the sale was made, the defendant, Toler, advised the plaintiff, Smith, that he would expect him to take the timber on the land in payment of the note of $1,500; that, repeatedly thereafter, both before and after the maturity of the note on January 1, 1928, he requested the plaintiff to cut and remove the timber from the property. That this was the position of the defendant with reference to the exercise of his option to pay in timber or money was admitted by the plaintiff in his testimony: “He told me he wanted me to take the timber and I told him I couldn’t take it.’’ That, notwithstanding this attitude, as indicated by his attorney, the plaintiff, in recognition of defendant’s rights under the agreement, treated the timber as his own. He sold more than 12,000 feet of the timber to Mr. Breedlove at $3 per thousand, and made some effort to sell more of it to another person. The defendant has never cut any of the timber, but has maintained consistently that the timber belonged to plaintiff, and should be cut and removed by him in order that he, the defendant, might “clear” the land. On June 20, 1929, the defendant registered a letter to .the plaintiff in which he demanded the surrender of the note herein sued on. This suit was instituted on the note more than eighteen months thereafter.

The case must turn upon the construction and legal effect of the stipulation in the deed with reference to the payment of the note sued on, ito-wit: “This note may be paid on its due date by sufficient timber returned to vendor if still on the land and not cut off, if cut must be paid in cash.”

The counsel for the plaintiff contends that the stipulation is vague and ambiguous; that it contains a potestative condition, in that it imposes, no obligation on the vendor, and that its binding effect is optional as to the vendee; and that, if it grants an option to .the vendee, that option was not timely exercised.

It seems to us that the stipulation conveys a very definite meaning, and is free from ambiguity, and does not contain a potestative condition. The deed conveyed the land and. timber thereon. The stipulation granted the vendee the right to pay a portion of the purchase price, which was represented by a note, by re-transferring all of the timber on the land to the vendor, or to pay the note in cash at his option. The stipulation, which is clearly an integral part of the contract of sale, obligates the vendor to receive all of the timber, if not cut, in payment of the note, or cash at the option of the vendee. The question as to what is meant by “sufficient timber” does not arise, as all of the timber is. yet on the land except that cut by the vendor pursuant to his agreement to receive it in payment of the note. Mr. Dismukes, the attorney who drew the contract and wrote the stipulation under consideration, and who testified for the plaintiff, stated that Mr. Smith, .the vendor, particularly wanted the provision placed in the agreement in order that the note might be paid with .the timber that was on the property.

A note, of course, is ordinarily payable in money, but it is well recognized that the creditor may enter into a binding agreement to permit the debtor, at his option, and for his benefit, to extinguish an obligation by the transfer of something of value, or by payment in money.

Knowledge that the defendant would exercise his option to pay the note in timber was timely conveyed to the plaintiff, and the plaintiff, in acknowledgment thereof, actually exercised the rights of ownership by cutting and selling some of the timber and receiving the consideration therefor.

We find the following in Corpus Juris, Payment, p. 608, par. 39:

“While payment is ordinarily required to be made in money, it may, when so agreed, either expressly or by implication, or when the • creditor so consents, be made by furnishing, transferring, or delivering anything of value; and even in the absence of such agreement or consent, if payment in money actually results from .the medium transferred or delivered to the creditor, the debt is extinguished to the extent of such payment. Ordinarily, an agreement for payment other .than in money is presumed to be made in favor of the debtor, and he has the option of paying the debt either in the medium specified or in money of equal value; but after the time for payment has passed the debt is payable only in money, in the absence of the creditor’s consent to receive something else.
“Where it is agreed that payment may be made by assignment or transfer of property other than money, the debtor must do what is necessary to transfer such interest in the property as to enable the creditor to obtain the beneficial ownership thereof, and if he fails to do so he' remains liable on the debt.”

The plaintiff does not pray, in the alternative, to be recognized as the owner of the timber, but we think he is entitled to such judgment under the prayer for general and equitable relief.

Article 7 of defendant’s answer reads as follows:

“Further answering said petition your defendant shows that the .timber situated on the land referred to belongs to G. P. Smith, who has exercised ownership thereof, and that he has had the right of ingress and egress at all times to cut and remove the same; and that he now has the right of ingress and egress to cut and remove the same, and that the said Exchange Bank, if the holder or pledgee of said note, is hereby granted and conferred the right, to enter in and upon said property, and to cut and remove .therefrom the timber which was taken by the said plaintiff in payment and extinguishment on the note sued on.”

The defendant has done everything in his power to vest title and ownership of the timber in plaintiff except to tender him a formal deed. That such tender would have been in vain is unquestionable. As the plaintiff has exercised the rights of ownership and possession, and no innocent third person’s interest is affected, we feel justified, in view of the above statement of the defendant, and the evidence adduced on the trial, and in the interests of an equitable disposition of the case, in decreeing the plaintiff the owner of the timber.

As the note sued on is a mortgage note identified with the act of sale and mortgage, and also bears. the same stipulation with reference to the .timber upon the back thereof that appears in the deed, the Exchange Bank of Natchitoches, pledgee, is not a holder in due course, but accepted the note with full knowledge of the rights of the parties, and holds it subject to the equities existing between them, and cannot therefore be considered an innocent third person.

For which reasons we are of the opinion that the judgment should be amended so as to recognize the plaintiff as the owner of the timber ' on the land described in plaintiff’s petition, with the right of ingress and egress thereon for a reasonable time to effect its removal, and that the judgment, as amended, should be affirmed, and it is so ordered.

ON REHEARING

TALIAFERRO, J.

Plaintiff, as grounds for rehearing, assigns the following, which he claims were errors in .the court’s original opinion, 137 So. 620: (1) That the judgment is. not conclusive in that no time limit was provided for the removal of the timber by plaintiff from defendant’s land; (2) that the court failed to determine the meaning and significance of the word “sufficient” in the clause in the act of sale and mortgage; (3) that since the property, both land and timber, is incumbered with a prior first mortgage in favor of a third party, the Federal Land Bank, defendant could not give a clear title to the timber; that it would be useless for plaintiff to accept .the timber thus incumbered.

In our original opinion, plaintiff was decreed to be “the owner of the timber on the land described in plaintiff’s petition, with the right of ingress and egress thereon for a reasonable time .to effect its removal.” No time limit was fixed in which to remove the timber, and none was asked.

As to the meaning of the word “sufficient” in the act of sale, our former decree makes it plain that, by construing together the language used in the deed and that used on the note with testimony, unobjected to, of the witnesses, particularly that of plaintiff’s own witness, Mr. Dismukes, the notary who passed the deed, as well as defendant and even plaintiff himself, reference was had to the timber as. a whole so long as defendant did not remove any. The writing on the note does not embrace the word “sufficient” or words “sufficient timber.” It uses tbe expression: ‘‘See deed and mortgage for further stipulation that this note may be paid by return of timber if on the land at due date, if timber cut off before that time, note must be paid in cash when due.”

Mr. Dismukes stated the meaning, as he understood it, to be “* * * that the note might be paid with the timber that was on the property.”

Mr. Dismukes. was asked by plaintiff’s own counsel:

“Q. What is the meaning of the word sufficient?
“A. There may have been some portion of the .timber cut by Mr. Toler, and if he cut the timber of course he would have to pay the proportionate part of the note in cash for the timber cut. If he cut the timber there would no.t be any timber to pay the note. And if he did not — ■”

Here the witness was apparently interrupted by counsel asking the question:

. “Q. Then if it was only worth originally $100.00?
“A. Mr. Smith thought it was well worth $1500.00.”

We submit that nothing could be made plainer than was here shown that it was not only the intention of the parties .that it was the timber as a whole which was to be given in payment of the note, in event defendant so elected, and that plaintiff himself placed a value on it as being equal to the amount called for by the note.

Counsel complains that defendant was not bound; that the contract evinced by .the deed contained a potestative condition, and constituted a “nudum pactum.” We cannot agree with the learned counsel. Defendant was most solemnly bound to pay. If he did not pay in timber, he had to pay in cash. Counsel confuses defendant’s right to elect or choose as to the manner of payment with his obligation to pay.. There was no escape from paying; certainly. none within his power 'to command.

The questions of tender and of giving plaintiff a clear title to the .timber are more difficult ones. Defendant apparently did everything short of making a legal tender of title. Under all of the circumstances, both as to the actions of plaintiff and defendant, can it be said that defendant was relieved of making such tender? After reviewing the pleading and testimony and the law on the subject, we are inclined .to adhere to our original conclusion that he was. In the first place, plaintiff had signed the deed, thereby binding himself to each of its covenants. He was completely obligated to receive the timber back as defendant’s right was .to return it. Defendant informed plaintiff soon after the deed was. passed, and long before the note became due, of his decision to return the timber in settlement of the note, and .told plaintiff to take the timber. Soon thereafter plaintiff sold Mr. Breedlove some of the timber doubtless by reason of Toler’s communication, .thereby accepting the timber and acquiescing in the manner in which Toler had offered it. Plaintiff did not hesitate or refuse to accept; nor did he even intimate that he wanted a deed from defendant, or that he would require •the title cleared of the Federal Land Bank’s mortgage. He sold to Breedlove in the same manner as defendant had returned to him without any written deed, and, moreover, Breedlove cut and removed what he bought. He tried to sell the balance later, never did refuse the .timber for any reason whatever, gave defendant permission to cut and deaden a few trees, inclosed by fence, in order that defendant might do some clearing, and, in fact, exercised- complete ownership over the timber, whereas defendant discontinued the exercise of ownership. Moreover, plaintiff made no demand whatever for payment of the note until shortly before the suit was filed, which was over four years after he had been offered the timber and his exercise of ownership had begun, and over three years after the note fell due. Plaintiff, we think, cannot now be heard to complain at defendant’s failure to make a formal tender of .title, in view of these circumstances, and after he has lulled defendant into a state of security by accepting and exercising ownership of the timber. It is when the creditor refuses to receive his payment that the debtor may make him a legal .tender, under the codal article (Civ. Code, art. 2167), which provides for legal tender. Clearly no legal tender is contemplated under circumstances such as are presented in this case, and we therefore adhere to our former ruling on this point.

After further study, however, we now think that plaintiff should not be required to accept the timber back unless and until the title is freed from the $2,700' mortgage held by the Federal Land Bank against it. While there was no express stipulation by the parties in their covenant to this effect, we think that such was contemplated by them, and we so construe it. It is suggested by counsel for defendant that no difficulty would be experienced in securing from the Federal Land Bank a release of the timber. It is also suggested that defendant is perfectly willing for the court to specify a reasonable time limit up to as much as five years if plaintiff may be allowed to cut and remove the timber. The timber referred to, we take it, contemplated such on the land as was merchantable.

Our former decree is therefore amended by now decreeing that defendant shall within ninety days after this judgment becomes, final, tender to plaintiff a title to the merchantable timber growing, standing, or being upon the lands in question, which shall be free from the $2,700 mortgage resting against it in favor of the Federal Land Bank, either by securing a release from said bank or by defendant furnishing to plaintiff bond with good and valid surety indemnifying plaintiff from having to respond to or pay the amount of said mortgage debt or any part thereof by reason of said timber. It is further decreed that, upon defendant’s making said tender of title, within the period named, thus cleared or secured, the note herein sued on shall be deemed as fully paid and satisfied, and the defendant entitled to have the vendor’s lien and mortgage with which the note is identified canceled and erased from the mortgage records in so far as affected by said note, otherwise defendant shall pay the plaintiff for the use and benefit of the Exchange Bank of Natchitoches, in so far as its interest may appear,' the full amount prayed for on the note, viz., $1,000, with 8 per cent per annum interest thereon from January 1, 1928, until paid, and 10 per cent additional as attorney’s fees thereon, with full recognition and enforcement of plaintiff’s vendor’s lien and special mortgage upon the entire property, together with all costs of both courts. In event, however, defendant shall make the tender, clear the title, or secure plaintiff, as herein decreed, he shall be absolved from the payment of any costs, but plaintiff shall pay all of same in both courts.

It is further ordered and decreed that, looking to plaintiff’s right to the timber and its removal in event he becomes absolute owner under title, he shall be deemed as owner of all of the merchantable timber-growing, standing, and being upon said lands, and he shall have free ingress and egress upon and across same for his employees, teams, and vehicles for a period of three years from .the date this judgment becomes final, in which to cut and remove said timber.

It is further ordered that, as thus amended, our former decree be reinstated and reaffirmed.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    No. 4277
    Second Circuit
    HILL v. MAGUIRE
    (March 16, 1932. Opinion and. Decree.)
    (May 4, 1932, Rehearing Refused.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for plaintiff, appellant.

      Herold, Cousin & Herold, of Shreveport, attorneys for defendant, appellee.
   PALMER, J.

This, is an action to recover damages in the sum of $375 for an alleged breach of contract to sell real estate. Plaintiff alleges that on December 13, 1928, she entered into a written contract with defendant for the purchase of lot 8 of Olive and Gilbert streets subdivision in the city of Shreveport for a consideration of $2,500; that the property in question was the separate property of defendant, and that she was purchasing with her separate and paraphernal funds; that $250 was paid defendant, through her duly authorized agent, H. S. Lonergan Realty Company, Incorporated, when the contract of sale was signed, and which amount has not been returned to her; and that the balance of the purchase price was to be paid when the transfer of the property was made.

Plaintiff alleges that she offered to accept title to said property and pay the balance due on the purchase price and demanded that the contract be carried into effect; that defendant refused to comply with her demands, but instead, on January 16, 1929, conveyed the lot in question .to another person. She alleges that, acting upon this contract, she had plans and specifications drawn for the building of a dwelling and improvements on this property at a cost of $100, and that these plans and specifications could only be used on this particular lot, and that they have been made useless by defendant’s refusal to transfer to her the title to said property. She further alleges that she paid the sum of $25 for an attorney’s examination of the title to this property.

Defendant denies owing the indebtedness sued on. She admits signing the document attached to plaintiff’s petition, but charges that the instrument does not contain the true agreement she entered into with plaintiff, and that she is not bound thereby. Defendant alleges that she was never put in legal default by plaintiff, and specifically pleads, as a bar .to plaintiff’s demands, want of legal tender of the cash price called for by the alleged contract, within the time specified.

In the alternative, defendant alleges that the real contract between her and plaintiff, and the circumstances under which it was executed, are as follows:

(a) That the same agent of the real estate company who presented plaintiff to her as a party desiring .to purchase this lot a short time before also' presented to her as a party desiring to purchase this same lot one Walter P. Hill; that, before she would enter upon negotiations with Hill, she required of him to know what character of improvements he contemplated erecting upon the property, and, upon being told that he intended to construct an apartment house thereon, she refused to sell him the property, although he offered her the price she was asking for it.

(b) That the following day this same real estate agent advised her he had another client, Mrs. Bessie Bryant Landrum, who wanted to purchase this same lot; that she was assured by both the said real estate agent and the said Mrs. Landrum that Mrs. Landrum wanted this lot for the purpose of erecting thereon a one-family residence; that she (defendant) informed both Mrs. Landrum and the said real estate agent that under no circumstances would she sell this lot unless .the purchaser agreed to use it for such purpose.

(c) That on the night of December 13, 1928, the said real estate agent brought out to her home the alleged contract of sale, and that, upon again being assured that the said Mrs. Landrum desired'said lot for the erection thereon of a one-family residence, and that the negotiations then being conducted were in no way connected with the prior negotiations with the said Walter F. Hill, after glancing over the contract, she signed it without noticing that the agreement, well understood by the said Mrs. Landrum, said real estate agent and defendant, that the lot in question was to be used for no other purpose than the erection of a one-family residence thereon, was not in fact included in the said draft of the agreement.

(d) That she subsequently learned that the said Mrs. Landrum and the said Walter F. Hill had. become married, and also learned that they were planning to erect an apartment house on this. lot.

(e) That plaintiff never put her in default, and never made her any legal tender of the purchase price of the property under the real agreement, as outlined by defendant, but, to the contrary, refused to accept the property under said true agreement.

She further alleges that, under the circumstances as outlined by her, she is entitled to have the alleged contract evidenced by the document attached to plaintiff’s petition reformed so as to conform to the true intention and agreement of both parties thereto, and including therein the restriction that the said lot could be used for no other purpose than the erection thereon of a one-family residence, and then hold that plaintiff has breached the contract as so reformed, and hence cannot recover herein.

Defendant then alleges that there was a conspiracy entered into by and between said real estate agent, said Walter F. Hill and plaintiff, for the purpose of securing from her, by subterfuge and deceit, as outlined by her, the said lot for the erection by the said Hill and/or his wife of an apartment house thereon; and that plaintiff, being a party thereto, has no right to recover by virtue thereof.

The lower court rendered judgment in favor of defendant, rejecting plaintiff’s demands at her cost. From that judgment,' plaintiff prosecutes this appeal.

Plaintiff rests her case upon proof and filing of the contract of sale attached to her petition, and upon proof of the cost of the plans and specifications, she had drawn for a building she expected to erect upon this lot, in the sum of $100 and upon proof of the attorney’s fees she paid for the examination of the title, in the sum of $25, and upon proof that she deposited with H. S. Lonergan Realty Company, Incorporated, the sum of $250, as per the terms of the contract, as part payment of the purchase price.

Plaintiff’s proof on the question of putting the defendant in default and of making a legal tender of the balance of the consideration consisted of her testimony alone to the effect that she and the real estate agent, with Mr. Hill and two other parties, went out to the home of defendant, but failed to find her, so Mr. Hill went back to the sanitarium, and she and the other parties went to the office of Mr. Maguire, husband of defendant; that she was. accompanied into the office by the said real estate agent, the other parties remaining on the outside; that she offered to pay Mr. Maguire the balance of the purchase price, and .that he refused to accept it; said he explained that he understood that plaintiff intended to erect an apartment house on the property and that he refused to execute deed to it.

Plaintiff does not claim that she ever tendered to defendant herself the balance of the purchase price, nor does she claim she ever tendered her a deed to sign, conveying title to the property, although she alleges that the property in question was the separate property of defendant. She appears to take the position that she was relieved of that obligation when defendant conveyed the property to another party, without first tendering a deed to her. Plaintiff did prove that on January 16, 1929, defendant transferred this lot to another party, and that she did not receive the opinion on the title from her attorney until January 9, 1929, and that, under the contract, she had fifteen days after the rendition of her attorney’s opinion in which to take title.

Ordinarily, an obligor must be put in moro, as a condition precedent to the recovery of damages for the passive violation of a contract. Civ. Code, art. 1912, and authorities there cited. We shall withhold any expression of opinion on this point at this .time. Defendant, after asking for a revision of the contract to conform to the true agreement, as she alleges it to be, again pleads this same defense; so, if the question is passed on at all, such should be done after we consider .the admissibility of the parol evidence and, if admitted, what bearing it has upon a final decision in the case.

This brings us to a consideration of the objection of plaintiff to the admissibility of the parol evidence offered by defendant. When .this testimony was offered, plaintiff objected to it on the grounds that parol evidence cannot be used to vary or contradict a written contract. The trial court admitted the evidence, subject to the objection. The objection and ruling of the court were made general to all such testimony throughout the trial.

True epough, the rule is well settled that parol evidence cannot be received to vary or contradict a written instrument, but it is also equally as well settled that under proper allegations of fraud and error such evidence may be introduced to show the true nature of the contract the parties thereto really intended to enter into.

“Where fraud or error is charged, parol evidence is admissible to contradict a written act.” Louisiana Digest, vol. 3, par. 252, and authorities cited.
“The admission of parol evidence .to defeat written contracts by proof of error or fraud is a rule of universal jurisprudence; they are susceptible of such proof only; and, under proper allegations, may be shown by the parties to an act, whether public or private, whose true stipulations may be established.” Louisiana Digest, vol. 3, Evidence, par. 252, and authorities cited.

In Atlas Oil Co. v. Logan et al., 166 La. 28, 116 So. 582, we find a case where plaintiff induced defendant to grant them an oil lease on certain property already under lease to other parties. Defendant first refused to grant the lease, but, upon assurances of plaintiff that they would take all the risk of annulling the other lease on the property, and that there would be no “come back” on defendant, .they granted plaintiff a lease on the property. Plaintiff’s efforts to annul the first lease were unsuccessful, so they sued defendant to recover the $4,500 paid for the lease defendant granted plaintiff. The,lease itself made no mention of the aforesaid agreement of plaintiff assuming all risk of annulling the first lease and that there would be no “come back” against defendant, so the Supreme Court held that parol evidence in that case was admissible to show that through inadvertence this stipulation was omitted from the contract. In passing upon the point, the court reaffirmed the settled principle covering the admissibility of parol evidence .to vary a written contract, under proper allegations of fraud or error, and quoted from Armstrong v. Armstrong, 36 Ann. 549; wherein this principle is stated as follows:

“It is a rule of universal jurisprudence that parol evidence will be heard to show error in a contract; it is susceptible of such proof only, and under proper allegations, parties will be heard to show that a valid existing instrument, from accident or error does not contain the real inten-» tion and meaning of the parties.
“The rule has been frequently considered by this Court, and has been invariably applied in that sense.”

The authorities sustaining this view are practically unanimous, and are certainly too numerous to even list here.

Plaintiff’s counsel take the position that there was no fraud or error alleged by defendant, and hence the parol evidence is inadmissible and cannot be considered. We disagree with counsel in these conclusions. It is true the terms “fraud” and “error” are not specifically mentioned, but, even if they had been used, without alleging the facts which constitute such fraud or error, such allegations would have been mere conclusions of law and insufficient for the reception of proof in substantiation .thereof; but in her pleadings defendant sets out in detail and at length a statement of facts which, if true, undoubtedly discloses a case of fraud on the part of plaintiff in securing the execution of the contra'ci as written and a case of error on the part of defendant in signing the contract without the reservation as to the character of improvements that could be erected on the property in question. It is not necessary, in charging fraud or error, that these very words be employed. Oftentimes a pleader in charging fraud purposely avoids, the express use of such a harsh word.

“Fraud has been defined to be any cunning deception or artifice used to circumvent, cheat, or deceive another.” Words & Phrases, First Series, Vol. 3, p. 2943, and. other authorities there cited.
“It is not necessary that the pleading allege fraud in direct terms; the charge, may be sufficiently made by stating the facts, from which fraud is necessarily implied. The term ‘fraud’ need not be used in the pleadings if facts are averred which show fraud as a conclusion of law.” Corpus Juris, vol. 27, p. 30.

We can hardly conceive of a more perfect case of fraud being alleged than is set forth in defendant’s alternative demand, which we have already stated somewhat at length in summarizing defendant's pleadings; and then, after reciting at considerable length the alleged facts, which, if true, disclose a strong case of fraud on the part of plaintiff, defendant sums them up with the direct charge, “.that there was a conspiracy entered into between Waltman (real estate agent), said Walter F. Hill and said Mrs. Bessie Bryant Landrum, for the purpose of securing by subterfuge and deceit, as above outlined, the said lot from respondent for the erection by said Hill and/or his wife of an apartment house thereon; and that plaintiff, being a party thereto, has no right to recover by virtue thereof.”

We conclude that the parol evidence offered by defendant and admitted, subject to plaintiff’s objections, is clearly admissible, under the allegations of the answer, and must be weighed and considered in determining the issues in this case.

THE FACTS

There is very little dispute about the facts. Admittedly, defendant did not want an apartment house erected upon the lot in questiou. As we see it, she tried hard to make that fact known to any who sought to buy this property.

There is no dispute that W. L. Waltman, an agent of a real estate company in Shreveport, sought to buy this property for Walter E. Hill, who soon thereafter became the husband of the plaintiff in this case, and that defendant, after having ascertained that Mr. Hill wanted the property for the purpose of erecting thereon an apartment house, refused to sell it to him,' although Hill offered her the price she was asking for the property.

Plaintiff admits, that she was familiar with the facts whereby Mr. Hill had tried to buy this lot and defendant had refused to sell it to him, because Hill wanted the property for the purpose of building thereon an apartment house and defendant refused to sell it to him to be used for that purpose.

“Q. Now prior to the time that you came in contact with Mr. Waltman, Mr. Waltman and Mr. Hill had been figuring, over the sale of that property, had they not?
“A. Yes.
“Q. You were acquainted with the negotiations between Mr. Waltman and Mr. Hill with reference to the purchase of this same lot, were you not?
“A. Well, yes, I believe that Mr. Hill told me that Mr. Waltman had been trying to sell him the lot.
“Q. And Mr. Hill had been wanting to buy that lot?
“A. Yes.
“Q. And Mrs. Maguire refused to sell it to him because he would not agree that it would not be used for an apartment house. Is that not correct?
“A. Yes.”

Plaintiff admits she told the real estate man she wanted the lot for the purpose of erecting thereon a home.

“Q. Then Mr. Waltman came to you and what did he say to you? .
“A. He told me he understood I was going to build a home and he wanted to show me that lot, and he took me out there and showed it to me.
“Q. Did you tell him you were going to build a home on it?
“A. Yes, sir.
“Q. You bought it for the purpose of building a home on it?
“A. I did.”

Plaintiff admits she had a conversation over the phone with defendant while these negotiations were pending, and that defendant told her that she had refused to sell this, lot to a man who wanted it for the purpose of building thereon an apartment house.

“Q. You knew that Mrs. Maguire objected to having an apartment house on the property?
“A. She told me that day she refused to sell it.
“Q. Your idea was that if you built an apartment house and . lived in one of the apartments, that would satisfy the objection?
“A. Yes.”

Walter P. Hill admitted that, just before he and plaintiff were married, he tried to buy this lot for the purpose of building an apartment house thereon, and that defendant refused to sell it to him to be used for that purpose.

“Q. And the owner of that property refused to sell it to you because she did not want an apartment house on it, is. that correct?
“A. That is what Mr. Waltman told me.
‘‘Q. Mr. Waltman came back and reported that to you?
“A. Yes, sir.
“Q. Now at that time that was very shortly before you married Mrs. Hill, was. it not?
“A. Yes.
‘‘Q. When was it that Mrs. Maguire, or, whoever it was that owned the property, notified you through Mr. Waltman that , she would not sell the lot because she did not want it used for an apartment house?
‘‘A. I don’t know what date that was because Mr. Waltman and I were dealing on several different pieces of property in different parts of town. I don’t know what date that was.
“Q. Was it as much as two or three days before this trade with Mrs. Maguire?
“A. No, I think it was more than that.
“Q. You do not know though, do you?
“A. No, I don’t know bécause I was figuring with Mr. Waltman on a good deal of property.”

He admits that he took some part in his wife’s negotiations for the purchase of this lot, acting as her agent.

“Q. Did you have anything to do with the carrying out of the transaction?
‘‘A. Carrying out of it?
“Q. Yes. Did you act as agent in any way for your wife?
“A. Yes.
“Q. You are familiar with the transaction?
“A. Yes, sir.”

Thus we find that Walter P. Hill was unable to .buy this property to be used for the erection of an apartment, house thereon, and, within a few days, having married the plaintiff in the meantime, he assists- her in trying to buy it for the very same purpose and acts as her agent in what he does in her behalf. We also find plaintiff, from her own admissions, knew at that time — having gained her information from Mr. Hill himself — that defendant had refused to sell to Mr. 1-Iill this same lot for the purpose of erecting thereon an apartment house, and, furthermore, plaintiff knew defendant was still holding to the same views and had told her she would not sell it to any one who would erect such a structure thereon.

Mrs. Hill, formerly Mrs. Bessie Bryant Landrum, says she was to pay for these properties with her own separate funds which she obtained from her first husband’s estate. Mr. Hill testified that Mrs. Hill was financing this purchase with her own separate funds. We therefore have this situation:

Mr. Hill, just a few days before he marries Mrs. Landrum, tries to buy -this lot for the purpose of erecting thereon a rather costly apartment house, and, failing in his efforts, becomes interested in assisting Mrs. Landrum in buying the same property for the same purpose. Mrs. Hill knows all about Mr. Hill’s failure to acquire this property and the reasons therefor. Now, whose money was to be used in paying for this property and in building this apartment house, whether operating in the name of Mr. Hill or of Mrs. Laridrum? It is most likely they had agreed to be married at the time the negotiations were carried on in Mr. Hill’s name. Plaintiff is shown to have had money obtained from her first husband’s estate which she desired to invest in an apartment house, and, almost immediately after Mr. Hill fails to buy in his own name, ,the same real estate agent, apparently with Mr. Hill’s assistance, approaches defendant in behalf of Mrs. Landrum to buy the same property. This time the propective purchaser, although intending to build an apartment house upon the property, states she wants the lot for the purpose of erecting thereon a residence. Whether Mrs. Landrum, now Mrs. Hill, intended this- as a fraudulent representation is immaterial. What she said, nevertheless, was not according to her real program, for she knew at that time she intended to erect an apartment house on the lot. She may have felt that she was not deceiving defendant because she intended to live in one of the apartments, but it did deceive her. She accepted Mrs. Landrum’s word that she wanted the lot on which to build, a residence, and hence in good faith, having full confidence in that statement, entered upon these negotiations.

None can doubt that defendant was doing her very best not to sell this lot to any one who would build an apartment house thereon. In her own heart, she had determined that no one could purchase it for that purpose. Likewise, it can hardly be doubted that plaintiff thoroughly understood this to be defendant’s unalterable stand on that question. Certainly Messrs. Waltman and Hill also knew this to be her position.

In face of all these facts and circumstances, we find that the alleged contract was. drawn without including such restrictions. Certainly defendant had no part in drafting the document. It was carried to her at her home after night on the occasion defendant signed it. At that time defendant appears to have been quite ill and says she merely glanced over it. She appears to have trusted defendant and Waltman to treat her fairly.

This evidence, fairly analyzed, convinces us that the alleged contract was. incomplete or incorrect to the extent of omitting a stipulation containing this restriction; that the instrument as written is not the true agreement entered into between plaintiff and defendant, and should be considered as revised and reformed so as to include that restriction. When it is so considered, then it is clear that plaintiff never put defendant in default, nor did she offer the consideration for a deed with such a stipulation in it. In view of the manner in which defendant was treated, we think she was perfectly justifiable in totally disregarding these negotiations and in selling the property to another at her pleasure.

Plaintiff claims, she should recover the $250 deposited with the real estate 'company from defendant, on the theory that the real estate company was the defendant’s agent, and that payment to the agent was payment to the principal. The clause in the contract dealing with this deposit does not bear out this contention. It specified: “It is agreed to by parties, to this contract that the money herein acknowledged shall be held in trust by said H. S. Lonergan Realty Company, Inc., Agents, until after transfer of property is made.”

As holders of this money, H. S. Lonergan Realty Company, Incorporated, certainly acted as agents of both parties. Plaintiff was. unwilling for this money to be delivered to defendant until she received title to the lot, so it was thus deposited, and the holder became the agent of both parties in connection therewith. If title to the property never passed, defendant was not to get the money. It was thus held to protect plaintiff, so, as the condition on which defendant could take possession of the money never happened, she never became bound therefor. It is the real estate company, and not defendant, who is due to account to plaintiff for this deposit.

As to the items of $100 and $25 paid by plaintiff for the plans and specifications and the attorney’s opinion, respectively, defendant cannot be held liable therefor, because the whole fault for the failure of a successful termination of the negotiations between plaintiff and defendant is chargeable to plaintiff, due to her efforts to thwart the real intention of the parties in forcing a contract not representative of the true agreement between them.

We think .the judgment of the lower court is correct, and it is accordingly affirmed; plaintiff-appellant to pay all cost of appeal.


text:
    No. 4168
    Second Circuit (Second Division)
    DUPREE v. MYERS
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932¿ Rehearing Granted.)
    (May 4, 1932. Opinion and Decree on Rehearing.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for plaintiff, appellant.
    Craig, Bolin & Magee, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

The plaintiff sues to rescind a sale of real estate for error and fraud; or in the alternative, for lesion beyond moiety. The petition alleges that plaintiff, an aged negro, was induced, through fraud and misrepresentation, to sign a deed transferring an undivided one-half interest in 110 acres of land situated in DeSoto parish, Louisiana, to the defendant; and that the consideration of the purported sale was the vile sum of $100, which represents less than one-tenth of the value of the interest in the land.

The defendant answered generally denying the facts as alleged, and that the petitioner is entitled to the relief sought.

There was judgment in the district court rejecting plaintiff’s demands at his cost and he has appealed.

It appears to us that the district judge was in error in holding that the plaintiff was not entitled to relief in response to his alternative demand. That being true, we consider it unnecessary to discuss the charges of fraud and misrepresentation, upon which the main demand is founded.

The facts which are pertinent to the issue upon which we think the case should be determined are as follows:

Lewis DuBose while married to the sister of the plaintiff, J. H. Dupree, acquired 110 acres of land in DeSoto parish, Louisiana, in 1888. It is admitted that Dupree, the plaintiff herein, inherited through his sister, the wife of DuBose, and through his mother, an undivided one-half interest in the 110 acres. After the death of his wife, DuBose continued in possession of the whole of the property. Although DuBose testified that he knew Dupree had an interest in the land, and Dupree testified that he knew that he, Dupree, had an interest in the land, DuBose lived upon the land, cultivated it, and leased it for mineral purposes from time to time, without accounting to Dupree, for a period of more than thirty years after Dupree’s interest had attached and before the transaction herein attacked had occurred. Dupree explained his conduct in not exercising his right of ownership for such a long period by stating that he didn’t care to disturb his brother-in-law, who could barely make a living on the place and pay the taxes. DuBose stated that this attitude of Dupree was well known to him and that he had always acknowledged Dupree’s interest in the property.

On May 31, 1930, the plaintiff sold his undivided interest in the tract to the defendant, C. C. Myers, for the stated consideration of $100 cash. The deed recited that the property was conveyed with full guaranty of title, and with complete transfer and subrogation of all rights and actions of warranty. The price was paid by check, which said check the plaintiff never cashed, but tendered its return to the defendant, and upon the refusal of the tender, deposited it in the registry of the trial court. The property at the time transferred had a lease value for oil and gas purposes estimated to be from $10 to. $30 per acre. Adjoining lands of the same kind were assessed at $10 per acre.

The alternative demand of plaintiff is founded on article 2589 of the Civil Code:

“If the vendor has been aggrieved for more than half the value of an immovable estate by him sold, he has the right to demand the rescission of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave to the purchaser the surplus of the thing’s value.”

It has been frequently held, and is well settled, that the issue presented in an action of this character is the intrinsic value of the land at the time of the sale and the plaintiff’s pretension and the nature of his title. Copley v. Flint, 16 La. 380; Martin v. Delaney, 47 La. Ann. 719, 17 So. 264; Fleming v. Irion, 132 La. 163, 61 So. 151.

Excluding from consideration the mineral value as speculative and conjectural, the intrinsic value of the property is established by uncontradicted evidence to be not less than its assessed value of $10 per acre.

Clearly, therefore, if it is not shown that the deed evidenced the sale of a speculative or pretended interest in the title the transaction should be rescinded for lesion beyond moiety.

The defendant contends that his purchase was not of an undivided one-half interest in 110 acres of land, to which there was no dispute as to title, but simply the purchase of plaintiff’s interest, if any he had, in land which may have been lost by prescription and the possession of which could only be secured after litigation with DuBose.

There is no evidence in the record to show, or that even suggests, that the plaintiff had any doubt that he owned, an undivided one-half interest in the property, or that he believed DuBose would resist the assertion of his right thereto. It is shown that DuBose openly acknowledged the ownership of Dupree and that this was known to the defendant before the sale was made. DuBose having recognized Dupree as co-owner, could not prescribe against him, by thirty years’ possession of the property owned in indivisión. A valid title to the property sold, we think, existed in the plaintiff at the time of the sale.

It is the settled policy of this state, as frequently announced by the Supreme Court, that the action of rescission fqr lesion beyond moiety was intended for the protection of those who through necessitous circumstances, weakness qr improvidence, have suffered a loss as a result of the sale of land of more than one-half of its value; and that it was not intended to afford a means of speculating in real estate and on the title thereof. Copley v. Flint, 16 La. 380; Martin v. Delaney, 47 La. Ann. 719, 17 So. 264; Fernandez v. Wilkinson, 158 La. 137, 103 So. 537.

The plaintiff is an old ignorant negro. He knew that he owned an inherited interest in the land, but had only a vague idea of its value. At the time of the transaction much doubt was entertained by one of the witnesses and the notary that plaintiff understood the nature and effect of the instrument he was signing. The notary read the deed in full to him and then asked him if he understood it. He said he didn’t think he did. The notary then attempted to explain it to him. He finally stated that he understood it.

It is inconceivable that the plaintiff in this case was attempting to. speculate on a precarious title. At the earnest solicitation of his son and the defendant, and on being tempted by the offer of the check, he was persuaded to part with property the value of which he did not know.

The instrument itself is further evidence, and conclusive evidence, if the plaintiff understood its purport, that there was no intent on his part to speculate on the validity of his title, as it expressed full guaranty of title. If he had had any doubt as to the strength of his title or his ability to deliver possession of the property, he certainly would have sold his interest without warranty.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, and that there now be judgment in favor of plaintiff and against the defendant annulling and rescinding the sale of plaintiff’s undivided one-half interest in the 110 acres of land, described in plaintiff’s petition, for lesion beyond moiety and recognizing the defendant to be the owner and entitled to the possession of the check for $100 deposited, in the registry of the court; the defendant to pay all costs.

ON REHEARING

TALIAFERRO, J.

The rehearing ordered in this case, while without restriction, was primarily for the purpose of affording opportunity to amend our former decree so as to comply with the law which gives defendant the alternative of holding the property and supplementing the price, or of surrendering the property to plaintiff.

However, we have again studied the record and have given due consideration to the argument and earnest brief of defendant’s counsel, without experiencing any change of opinion on the two main questions passed on in our former decree, viz.: plaintiff’s ownership of the property when conveyed to defendant and its value being more than twice the amount of price paid him. Such value we find to be $550, or $10 per acre. No good purpose would be served by repetition of the facts of the case, nor of the reasons for our former decree.

For the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and same is hereby, reversed and set aside, and there is now jugment in favor of plaintiff decreeing the sale of said property by him to defendant, subject to be annulled and rescinded, on the ground of lesion beyond moiety, and such sale is hereby annulled and rescinded, for such reason, subject to the right of election by defendant, within 30 days after finality of this decree, of supplementing the price of such sale and paying plaintiff $450 in cash and holding the property; or surrender said property to plaintiff, free of mortgages and/or other encumbrances, within said time, and in this event the check of $100, now in the registry of the lower court, tendered on account of the price of sale, shall be delivered to defendant; and should defendant not elect to supplement the price of sale, as herein fixed, the property described therein shall become that of and belong to plaintiff in full ownership, free of any claim of defendant, which ownership, and his right of possession thereto, in that event, is hereby recognized.

As amended hereby, our former judgment and decree is reinstated and made final. Costs of both courts are decreed to be paid by defendant.


author: WESTERFIELD, J.

text:
    No. 13,412
    Orleans
    DYER v. BRIDGE HEIGHTS REALTY CO.
    (April 21, 1930. Opinion and Decree.)
    (July 2, 1930. Judgment amended by Supreme Court on Writs of Certiorari and Review.)

      Theo. Cotonio and Theo. Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellant.
    J. Studebaker Lucas and H. J. Agregaard, of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

The motion to dismiss in this case is based upon the contention that the amount involved is in excess of the sum of $2,000, the upper limit of our jurisdiction in monied demands.

The judgment from which plaintiff alone has appealed was one rendered by the Civil District Court for the parish of Orleans perpetuating a preliminary writ of mandamus and ordering the defendant corporation to issue to plaintiff a certificate or certificates of stock to the extent of 230 shares, “in lieu of a like amount issued to William R. Dodd under certificates 15, 18 and 19, upon relator furnishing bond of a surety company, authorized to do business in the state of Louisiana, in the amount of the par value of said stock, to secure said corporation from any loss, or liability which might accrue to holders or persons having an interest in the original certificates, and until the sun-ender and cancellation of said original shares.”

Plaintiff complains of that part of the judgment which orders a bond equal to the par value of the stock, his contention being that the actual value of the stock is far less than its par value. The petition does not fix either the par value or the actual value of the stock, nor does it appear directly from the evidence in the case. The motion for a new trial declares the par value to be $50 per share, or $11,500, but avers that the entire 230 shares had been purchased by plaintiff at sheriff’s sale for $115. The entire record in the matter of Dyer v. Dodge, No. 180,859 of the docket of the Civil District Court, was offered in evidence. This record we do not find in the transcript of appeal, but we must presume that it contained sufficient evidence of the value of the stock, or, at least, of its par value, to enable the court to fix the amount of the bond. Whether the action of the court in this respect was proper is a question we are not called upon at this time to decide. The amount involved is the value of the stock certificates, which plaintiff sought by mandamus to have issued to him. The trial court, for reasons which it deemed sufficient, reached the conclusion that the stock was worth $11,-500, for that is the amount of bond it required as a condition precedent to granting the relief sought by plaintiff. It follows that this court is without jurisdiction ratione materiae in the premises. We have concluded to transfer the case to the Supreme Court in accordance with the authority conferred upon us by Act No. 56 of 1904, as amended by Act No. 19 of 1912.

It is, therefore, ordered, adjudged, and decreed that this case be transferred to the Supreme Court of the state of Louisiana, provided that appellant shall file in the Supreme Court within thirty days from this date, a transcript of this case prepared in accordance with the rules prescribed by said court for transcripts of appeals from the district courts to said court, together with a copy of this order; otherwise that the appeal herein be dismissed. The costs of appeal to this court to be paid by appellant.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,500
    Orleans
    RABINOWITZ v. HURWITZ-MINTZ FURNITURE CO.
    (March 23, 1931. Opinion and Decree.)
    W. W. Heard, of New Orleans, attorney for plaintiff, appellee.
    Cahn & Cahn, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues for $300 alleged to be due him under a certain written agreement which he entered into with defendant from which we quote the following:

“This agreement made the thirtieth day of June in the year Nineteen Hundred and Twenty-eight, by and between Hurwitz-Mintz Furniture Co., hereinafter called the Owner, and Hyman Rabinowitz, Civil Engineer, hereinafter called the Architect, WITNESSETH, that where the Owner intends to make alterations and repairs to building #211-15 Royal Street.”

The contract was drawn on a printed form commonly used by architects. The words which are in bold type were inserted in handwriting.

Defendant resists plaintiff’s claim upon the ground that he was not qualified as an architect and, therefore, prohibited from practicing • that profession under the terms of Act No. 231 of 1910, and, in the alternative, should this defense not prevail, it is averred that plaintiff failed in the execution of his contract; that his plans were defective and that he was incompetent, with the result that defendant was put to an expense greater than the sum demanded in order to have the work properly executed.

There was judgment below in plaintiff’s favor as prayed for and defendant has appealed.

It is admitted that plaintiff was not qualified in accordance with the provisions of Act No. 231 of 1910 and, that if the services which plaintiff contracted to render under his agreement with defendant may be considered to be architectural services, he cannot succeed in this suit in view o£ the prohibition contained in section 1 of the act referred to, to the effect that:

“No person excepting those already engaged under existing laws in the practice of architecture shall practice the said calling or profession within the State of Louisiana, unless such person shall possess all the qualifications required by this Act. An architect under the terms of this Act shall be one who professes to practice his profession or who advertises and holds himself out as such.”

But, it is insisted that plaintiff in this case neither held himself out nor professed to practice architecture; that what he undertook to do was within the province of a civil engineer; that his use of an architectural form in the printed portion of which he is referred to as an architect is controlled and overcome by the written part of the contract wherein he expressly styles himself “civil engineer,” under a familiar rule of construction to the effect that in documents partly printed and partly written, the written portion prevails over the printed portion. Hagen v. Scottish Union & National Insurance Co., 186 U. S. 423, 22 S. Ct. 862, 864, 46 L. Ed. 1229; Alex F. Dreyfous Company, Inc., v. Breen (Wife of Friedman), 13 La. App. 479, 126 So. 264.

We are of the opinion that plaintiff’s use of the printed architectural form would not amount to a holding out as an architect or a professing to practice that occupation. The determining factor of the case on this point is whether, as a matter of fact, the work which the plaintiff undertook to do was within the sphere of the architect and without that of the engineer.

In the Encyclopedia Brittanica we find the following with respect to the profession of engineering:

“Specialization has brought about separate grouping of those interested in mechanical, electrical, mining, etc. engineering. Underlying all groups is the work of the civil engineer, whose field particularly is that of structures. Foundations, simple •or extremely complicated, are within his realm. He designs and supervises the construction of bridges and great buildings, tunnels, dams, reservoirs and aqueducts.”

From the same work we excerpt the following definition of an architect:

“One who, skilled in the art of architecture designs buildings, determining the disposition of both their interior spaces and exterior masses, together with the structural embellishments of each, and generally supervises their erection.”

The contract in this case involved the preparation of plans and specifications for the construction of certain structural steel I-beams in connection with the alteration and repair of a building owned by defendant. Plaintiff testified that that character of work was commonly undertaken by civil engineers and he is supported in that statement by a witness by the name of J. W. Montgomery, who, for thirty years, has been employed by the Lukens Steel Company which concern furnished the steel used in the alteration of defendant’s building. Plaintiff’s testimony in this regard is also supported by the fact that when a controversy arose between himself and defendant resulting in his being supplanted by someone else in the supervision of the work, the party chosen as his successor was a construction engineer by the name of Belden.

In view of the definitions which we have quoted and the testimony in the record it is not at all clear whether plaintiff’s undertaking under the contract was within the field of architecture or engineering or partook of both. It would appear that these two professions overlap and that in some instances particularly where structural work is contemplated it might as well be undertaken by an engineer as an architect.

Our conclusion is that the first point of the defense is not well taken.

In so far as the manner in which plaintiff executed his contract is concerned we, like the judge of the trial court, are of the opinion that there is no showing of inefficiency or incompetency which would justify the defendant in abrogating its contract. There is some testimony in the record to the effect that there was difficulty in locating plaintiff over the phone upon occasions when an officer of the defendant corporation desired to communicate with him concerning the progress of the work, but it is entirely overshadowed by the preponderance of testimony to thei effect that his plans were properly drawn, the work carefully supervised and the plaintiff almost constantly on the job. Without going into greater detail concerning the rather extensive evidence on this point we conclude that it is without merit.

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

JANVIER, J.

(dissenting). Plaintiff Rabinowitz admits that he is not a licensed architect. Thus he is prohibited by Act No. 231 of 1910 from undertaking architectural work.

That the work which he here undertook and for which he now seeks remuneration is architectural is best evidenced by the fact that the contract under which he obtained the employment was executed on a standard form of the American Institute of Architects, prepared for use where a contract is entered into between an owner and “an architect.”

I am well convinced that one who prepares plans for and supervises the remodeling of the entire front of a store building thus undertakes architectural work. That is what Rabinowitz did here.

The fact that the plans required certain structural steel work to be done did not deprive the whole work of its architectural character. In the organization of a corporation a notarial charter is necessary. Does this fact render the work of organizing and advising the corporation notarial rather than legal? Or does it give to one who is a notary and not an attorney the right to give legal advice to the corporation?

It cannot be denied that considerable difficulty was encountered in the carrying out of the work. It was to eliminate as far as possible just such difficulties that the statute of 1910 was enacted.

Architectural work should be done by architects and it is a plain violation of the statute for a civil engineer to undertake it. His styling himself a “civil engineer” does not change the character of the work.

.1 respectfully dissent.


author: MOUTON, J.

text:
    No. 710
    First Circuit
    DENHAM ET AL. v. TAYLOR ET AL.
    (January 26, 1931. Opinion, and Decree.)
    (March 2, 1931. Writ of Review Refused by Supreme Court.)
    (For former opinion, see 15 La. App. 545, 131 So. 614.)
    Barron & Johnson, of Baton Rouge, attorneys. for plaintiffs.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendant, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   ON APPLICATION FOR REHEARING

MOUTON, J.

In their application, counsel refer to the case of Sam Mathews Lawrason v. Eugene Richard, Jr., 132 So., recently decided by the Supreme Court on a writ of review, in which it was held that plaintiff was engaged in a joint adventure or common enterprise with the defendant when the accident occurred and therefore could not recover for the damages he had suffered.

In reviewing the facts in that case, the court said an interfraterni.ty initiation was to be held at Magnolia, a small settlement in the parish of East Baton Rouge, about fifteen miles from the city of Baton Rouge. Plaintiff and other students of the Louisiana State University, said the court, intended, on the night the accident occurred, to attend the initiation meeting of the fraternity at Magnolia. It was understood, as was explained to defendant who was a resident of Avoyelles 'parish, that the members of the fraternity would be taken there in a truck which was to leave at a designated point in Boyd avenue, city of Baton Rouge. The defendant at first declined the invitation, but at the earnest solicitation of plaintiff and others, subsequently yielded to the request.

The truck having failed to arrive at the designated spot on time and after abandoning all hopes for its arrival, all the members present mutually agreed to crowd into the several private cars, then at the place of the assembly, and ,to proceed to Magnolia by that method of transportation. Plaintiff and six members entered defendant’s car. On their way, the accident from which plaintiff suffered the injury happened at the Comite river bridge.

In passing on .the foregoing state of facts, the court referred to Corpus Juris, vol. 33, p. 841, where it is said that a joint venture is a legal concept of comparative recent origin, is purely the creature of the American courts, and may or may not apply to the relation of partners.

The court then quotes from Berry on Automobiles (2nd Ed.) par. 322, as follows:

“Where persons are associated together in the execution of a common purpose and undertaking, it has been held that each is the agent of the others in carrying out their plans, so that the negligence of one is attributable to the others.”

Thereafter, in the course of the opinion, the court makes this significant remark:

“In this case the gratuitous use of defendant’s car was sought by plaintiff and his interfraternity brothers for their own convenience and accommodation, for the purpose of proceeding to a fixed destination to participate in and consummate an, agreed and common purpose.”

In the present case, in referring to the material facts _ which are pertinent to the issue as to whether Miss Denham had engaged in a joint adventure with Millender, the co-defendant of Taylor, we said:

“There was a dance at .the community club in Baton Rouge on the night of November 27, which Miss Annie Denham had been invited to attend by Clarence W. David, a young man of the City of Baton Rouge. David not having a car to escort her to the dance, at his. request, Millender agreed .to call at her home to take her there in his ear. They proceeded to her home in Millender’s Ford coupe, when. David got down, and in company with Miss. Denham came up to the car, was introduced to Millender, who drove them to the community club.
“Millender danced once or twice with her and left to get a young lady he was* to escort to the dance. She was unable to attend, and Millender returned without her to the club.
“The dance having stopped for the usual midnight intermission, Millender again met David and Miss Denham and stated that he had failed to ‘get his date’ with the young lady he intended to take to the club. At David’s suggestion he said that he would be glad to take them for refreshments downtown, to which Miss Denham promptly agreed. They got in Millender’s car, David on the right side, Miss Denham in the middle, and Millender on the left driving. As the place where they intended to get the refreshments was closed, they did not stop there, and Millender was heading back to the dance hall when the accident occurred at the intersection of St. Napoleon Street with North Boulevard.”

Further in our opinion, in commenting on that issue in the case, we said:

“Here it appears that Miss Denham had been invited to the dance by David, and had made no arrangements whatsoever) for a. trip to the community club in the car of Millender, who was a stranger .to her when he appeared at her home to take her there with David.
“When the intermission occurred at the dance hall, she was again invited by David to go downtown for refreshments, and agreed to go in Millender’s car. At that time she certainly had been unexpectedly invited, and had made no preparation for a trip as. a joint venture with either David or Millender.”

It will be noted that in the first excerpt quoted from our opinion in this case, we said that Millender was a stranger .to Miss Denham when he took her at her home to go to the community club, and that he proceeded there for that purpose at the request of his friend, David, who had no auto. Evidently, she had not planned for this trip with Millender, knew nothing of it, and was certainly an invitee on the part of Millender through his friend David, for the ride which was afforded Miss Denham to the club. After the intermission at the dance hall, to which we referred in our decision, she was again invited by David to go downtown for refreshments. She was then again unexpectedly invited, and merely acceded to the proposition. There had not been in either instance any solicitation or even the slightest request on her part for the “purpose of proceeding to a fixed destination to participate in and to consummate an agreed and common purpose,” to bring' the case under the foregoing quotations from the decision of the Supreme Court in the recent case, above cited.

She was merely an invitee or guest of Millender through David, when she first went to the club, and thereafter to the proposed place for refreshments.

In the quotation by the Supreme Court in the case of Lawrason v. Richard, Jr., we find the following from Berry on Automobiles:

“Where two men engaged in the joint purpose of taking two ladies for an automobile ride, during which one of the men was. injured by the combined negligence of a town in maintaining a defective highway and his associate in the undertaking, it was held that he was charged with the negligence of his associate and could not recover from the town for his injuries.”

In the instant case the associate of Mil-lender in the joint adventure, if there were any, was Clarence W. David, and not Miss Denham. These two, Millender and David, were two men engaged in the joint purpose of taking “one” not “two ladies” for two “not one automobile ride,” first from her home to the club, and thereafter to a place for refreshments. The issue as to the responsibility as joint adventurers could possibly arise between Millender and David, but in no event as to Miss. Denham who had been taken for an automobile ride to the places hereinabove mentioned.

We hold that Miss Denham was not engaged at the time she was injured in a joint venture or common enterprise; that she was a mere guest, and for that reason there is no ground for a rehearing on that issue; nor on the other points raised in the two applications, for a rehearing, which are hereby refused and denied.


author: ELLIOTT, J.

text:
    No. 966
    First Circuit
    ARMSTRONG v. LAMAR LBR. CO., INC., ET AL.
    (May 3, 1932. Opinion and Decree.)

      Samuel J. Tennant, Jr., of New Orleans, attorney for plaintiff, appellee.
    Ott & Johnson, of Franklinton, attorneys for defendants, appellants.
   ELLIOTT, J.

Van Armstrong while performing service as tong hooker for Lamar Lumber Company, Inc., arising out of and incidental to his employment in the course of his employer’s business, received an accidental injury resulting in the loss of his right leg.

The accident occurred on March 9, 1931.

He claims compensation of Lamar Lumber Company, Inc., and that T. H. Mastin & Co., attorneys in fact for the Consolidated Underwriters’ Exchange, and Consolidated Underwriters’ Exchange are also liable unto him for the same. His claim as presented in his original and amended and supplemental petition calls, for 65 per cent of a daily wage of $2.46 for six days a week, making $14.76 per week, 65 per cent of which is $9.59, and same for 175 weeks makes $1,671.25. He prays that this sum be ordered paid to him in a lump sum, less a credit of $40, with legal interest from judicial demand.

Lamar Lumber Company, Inc., T. H. Mas-tin & Co., and Consolidated Underwriters’ Exchange answering his petition admit his employment and injury as alleged and that he is entitled to compensation, but they deny that he is entitled to the amount he claims.

They aver that the compensation to which he is entitled is 65 per cent of a daily wage of $2.05 and that same should be computed on a schedule of three days a week, the weekly amount of which is $6.15, and 65 per cent of same makes $4 per week for 175 weeks. That Lamar Lumber Company, Inc., is entitled to credit of $97.43. They refuse to agree to a lump-sum settlement.

There was judgment in favor of plaintiff and against defendants in solido fixing plaintiff’s compensation at 65 per cent of $12.30 per week for a period of 175 weeks, less a credit of $83.83. Defendants have appealed.

There is no dispute about the facts; the dispute is whether plaintiff’s, daily wage is to be computed on a twelve-hour or ten-hour day and on a schedule of three or six working days a week.

The evidence shows that plaintiff’s pay was 20% cents per^ hour. The first week he was employed -he worked ten hours a day and six days a week; the next week he worked but four days and the next two weeks, three days each week, ten hours a day. The plaintiff was injured on the first day of the next week, and the evidence is that the crew of which he was a member worked three days of that week and ten hours a day, and if plaintiff had not been hurt he would no doubt have worked the same.

But the day preceding his injury, as well as on the day he was injured, he was credited with twelve hours’ time.

The evidence shows that on these two days, he was instructed by his foreman to go out earlier .than his regular work commenced and help the firemen, and for doing so he was allowed two hours’ extra time.

For this extra time, plaintiff was allowed wages at the same rate as for his regular time. His daily wage as tong hooker amounted to $2.05, but for these two days on which he was allowed twelve hours, his wages amounted to $2.46. Having been credited with twelve hours the day preceding and for the day he was injured, plaintiff claims that his ■ compensation should be fixed on a twelve-hour a day basis and on a schedule of six days a week.

Defendants resist and claim that as his regular time was but ten hours a day and as he had worked for the last two weeks only three days a week and would have worked but three days the week he was injured, his compensation should be based on a day of ten hours and a schedule of three days a week.

In this connection we are cited to the case of Clark v. Forest Lumber Company, 9 La. App. 639, 120 So. 88. In that case Clark was shown to have been regularly employed as fireman on a skidder during the day and as watchman on it at night. He slept in a room on the skidder. He was paid a regular sum of $3.75 as fireman and $2.50 as watchman, making $6.25, which amount he received each day of the week, a total of $43.75 per week. But Clark’s work during the day and at night was his regular contract. He was able to perform both services and he was hired and paid accordingly. There was a dispute about the amount of his compensation because he was injured while performing the service of a watchman and for which he was receiving only $2.50 per night. But the court acting on the case held that his compensation was to be fixed on the amount he was paid pursuant to his employment for each day and each week, the weekly amount earned being $43.75.

In this case Armstrong was not regularly employed to help the fireman. The Clark case is therefore different.

The case Wilson v. La. Central Lumber Co., 3 La. App. 425, is also cited. In that case Wilson was injured while hired and working as swamper, for which he was receiving $2.75 per day. He had been previously hired and had worked as a log hauler for which he had received $3.30 per day. The court in fixing his compensation held that it should be based on the amount he was receiving for the work he was hired to perform and performing at the time of his injury, which was that of swamper, and declined to fix his compensation on the basis of what he had previously received at the time he was hired and was. working for as a log hauler. The Wilson case is therefore different from the one presently in hand. •

In Danzy v. Crowell & Spencer Lumber Co., Ltd., 16 La. App. 300, 134 So. 267, the parties were working only three days a week, but the plaintiff Danzy was not employed by the hour nor by the day and was not paid in that way; he was cutting logs and paid according to the number of feet cut; and the court estimated his daily and weekly earnings.

In Colquette v. La. Central Lumber Co., 11 La. App. 140, 119 So. 714, the plaintiff was employee! and worked regularly seven days a week and his compensation was based on his regular daily and weekly wages.

In the case 9 La. App. 639, 120 So. 88, the party had worked seven days during the week.

In the case Boyett v. Urania Lumber Co., 8 La. App. 132, the work was cutting logs and payment was according to the number of feet cut..

In the present case Armstrong had helped the fireman during the early morning of the preceding day and had done so during the early morning of the day he was injured, but that was not part of his regular employment. He was injured during his regular employment and while working as tong hooker. As tong hooker his work was ten hours a day, and we therefore think his daily wages upon which his compensation is to be fixed should be ten hours a day at 20% cents per hour, or $2.05 per day, and as was held in the lower court.

We now come to the weekly schedule and to the difference of the parties on that subject. Mr. J. H. Grimmett, manager of the Lamar Lumber Company, Inc., was the only witness on this subject and his testimony is not questioned.

He testified that the' pay roll showed that in the week of February 11, 1931, plaintiff worked six days a week; the next week four days and ten hours a day; the next week three days and ten hours a day; the next three days and ten hours a day.

That plaintiff was injured on the first day of the next week. That the skidder ran that week three days and ten hours a day and continued three days a week Until it closed down in June.

“Q. Then will you state clearly so that there won’t be any doubt about it the schedule under which it ran and under which you ran and under which this plaintiff worked and tke number of hours per day and the number of days- per week, under his contract to hire at the time of the injury?
“A. We were running three days per week, ten hours per day, the operations were working on that basis.”

In another place:

“Q. It was possible for him to work the whole six days a week if he could get the employment?
“A. Yes, sir.”

In another place:

“Q. If I understood you it was the demand at the mill that governed the opera-, tions of the skidder?
“A. Yes.
“Q. As a matter of fact, after .there was no demand there, you cut the operations at the skidder as you did in June?
“A. Yes.
“Q. And if there was a great demand there you ran your skidder full time?
“A. "ies, if we ran the mill.”

Plaintiff was a member of the skidder crew, and we understand from Mr. Grimmett that the number of days during the week that he worked, depended on the demand for logs at the mill. If the demand so required, the skidder worked six days in the week. If three days a week was sufficient to log the mill, then the logging crew worked the number of days in the week necessary to keep .the mill in logs and no longer. Our understanding is that the logging crew were recognized by the defendant lumber company as its employees. They could quit any day, but as long as they chose to remain in its service they were given work as logs were needed. They could be called to work six days of the week or four days or three days, as the exigencies of the mill required.

The Employers’ Liability Act, sec. 8 (amended Act No. 242 of 1928), fixes compensation on a weekly basis and the week which it has in mind is a full week, containing seven days, of which six are days of work and one a day of rest.

The same section (sec. 8, subsection 3, of the amended act) provides, however, that: “The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury.”

We understand this to mean that compensation is to be fixed according to the daily rate of pay, but the length of time it runs is by the week and the aggregate of his daily wages during a week is the basis for determining the amount he is to receive per week. If there is an agreement in the contract of hiring fixing the number of days in the week that the workman engages to work, or if he works by the piece, lot, or job, then the week earnings are to be estimated as seems fair and equitable. But in a case like the present where the service which the party was performing at the time of his' injury was under the same hiring which was enforced and governed the agreement at the time the party was first employed, and which contemplated we think by reasonable inference from the testimony of Mr. Grimmett, the operation of the skidder for six days a week, in such a situation we think the compensation of the party injured should be based on a weekly schedule of six days per week.

The cases of Gousoulin v. Lake Charles Stevedores, 19 La. App. 96, 139 So. 747, and Williams v. Lake Charles Stevedores, 19 La. App. 185, 139 So. 748, recently decided, are based on a different situation in the matter of hiring. In those cases, the stevedores Gousoulin and Williams were hired by the hour and could be called on and had to hold themselves ready under their contract to work at the docks for such number of hours and only on such days as their services were needed. That was their contract. Their hours as well as days of work were uncertain. If they had not remained subject to such service in the employment in which they were engaged, they would have forfeited their employment. They could not engage in any other work because the nature of their work required them to be constantly in readiness to respond to a summons to come to the dock. To that extent the situation was the same with the plaintiff Armstrong. When the defendant Lamar Lumber Company needed logs, the skidder work had to start and keep working until enough logs necessary to keep- the mill going for a week had been supplied. Armstrong had to hold himself in the employment of the defendant, ready when notified to work six days any week that such operation of the skidder would require to keep the mill going for a week. He would have forfeited his employment if he had not done so. The difference between him, and the plaintiffs in the two suits mentioned, was that the stevedores were hired to work by the hour and to remain at it as many hours as the work of loading or unloading of the ship required, but Armstrong was hired by the day, and we conclude from the testimony of Mr. Grimmett that the operation of the mill at the time of the hiring was giving employment to the skidder crew six days a week, and nothing indicates that at the time of the employment in question, the parties contemplated a less number of days work than six during the week.

Such being the facts of .the case, we think the reason and intent of the statute is put into effect by fixing plaintiff’s weekly compensation on a schedule of six days a week for the one hundred and seventy-five weeks during which the statute provides he must be paid on account of his injury. This holding places the. present case in line with our recent decision in the case of Boudreaux v. Rossen, 19 La. App. 188, 139 So. 706, in which the facts as to the hiring and the number of days worked during the week, during the subsequent weeks of the hiring, was similar to what took place in the present case, and requires, we think, a similar decision.

As for the credits to which the defendant is entitled we think the amount was properly fixed by the court at $83.83.

The appellee has filed an answer to the appeal praying that his compensation be increased. We have considered his application. The increase prayed for is refused.

Por these reasons, the judgment appealed from is affirmed. Defendant and appellant to pay the costs in both courts.