text:
    No. 9545
    Orleans
    MARQUE, Appellant v. KOLWE
    (Jan. 3, 1927. Opinion and Decree.)
    (Jan. 31, 1927. Rehearing Refused.)

      (Syllabus by' the Court.)

    1. Louisiana Digest — Taxation—Par. 358, 361.
    Where A, the tax debtor, owns two lots-measuring each 30 feet front, the advertisement and sale of the Same for-taxes as two lots measuring 30 feet' front will convey the whole of the two'Ipts being identified as the same owned by the tax debtor.
    , 2. Louisiana Digest — Taxation—Par. 377.
    An action to annul a tax sale is prescribed by three years from the date of the - recordation of the tax deed, except in cases of dual assessment or of prior payment of the tax.
    3. Louisiana Digest — Taxation—Par. 377.
    Assessment in the name of one not the owner and want of notice to the owner are covered by this prescription of three years of an action to' annul a tax sale.
    4. Louisiana Digest — Taxation—Par. 377, 378.
    But the prescription of three years of an action to annul a tax sale does not run againsit a tax debtor in actual possession. :

      Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by A. L. Marque against A. J. Kolwe.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Feitel & Feitel, N. H. -Polmer, of New Orleans, attorneys for plaintiff, appellant.
    W. W. Wall, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit to set aside a tax sale.

The plaintiff alleged that he was the owner in full possession of two lots of ground situated in the second district of this city in the square No. 634 bounded by • Peach, Marks, Hamilton and Laurel Grove designated by the Nos. 23 and 24 on a sketch of H. C. Brown, surveyor, dated August 21, 1903, annexed to an act' of F. J. Dreyfous, dated July 17, 1908, measuring each 30 feet front on Peach street by a depth of 120 feet, lot No. 24 forming the corner of Peach and Hamilton streets; purchased by act of Felix J. Dreyfous, notary, dated August 19, 1909, Reg. C: O. 226-624, from Elias Pailet;

That since his acquisition he has been in the continuous, physical, and corporeal possession of said two lots, and was in such possession on July 15, 1918, and is nw enjoying such possession.

That on July 15, 1918, said property was adjudicated to A. J. Kolwe for $15.20 at a sale made for unpaid city taxes for the year 1915, registered in the • conveyance office on July. 29,'1918. in book 302, p. 119; that said sale is null and void for the following reasons:

1st. That, although plaintiff was the registered owner of the property at the time of the tax, said property was assessed in the name of the “Teutonia Loan and Building Company”, and was • adver-1 tised for sale in the above name;

2nd. That plaintiff was .never served with a notice of said sale as required by section 50 and 51 of Act 170 of 1898; but the notice of sale was served upon “the Teutonia Loan and Building, Company”; that plaintiff had no knowledge of the- intended sale and the city made no attempt to serve him with notice.

Plaintiff further alleged that he had paid all the taxes upon said property for the years 1916 to 1921, both inclusive.

Plaintiff prayed for judgment annulling the tax sale and recognizing him as owner of the property, and in default for judgment in his favor for the taxes paid by him.

The defendant admitted the tax sa.le to him, but denied all the other allegations of the petition.

Further answering, he alleged that the tax sale was valid and vested in him a valid title; that ever since said sale he has had the actual, physical, and corporeal possession of the property sold, and' that his “title is quieted and confirmed, and plaintiff’s action to annul the same is barred by the prescription or peremption of three years set forth in the. Constitution of the State of Louisiana, which constitutional provision is expressly pleaded here in bar of plaintiff’s action”.

By a supplemental petition plaintiff alleged “that the- advertisement under which the property was sold, recited said property as measuring 30 feet front on Peach .street by 120 feet in depth; that said measurements were not sufficient to identify the property as provided by Act 1770 of 1898”, as the whole appears by a copy of said advertisement and process verbal of sale annexed. Plaintiff prayed that in case the tax cale was maintained as vaild that it be restricted to one lot measuring 30 feet front on Peach street by 120 feet in depth.

Of this supplemental petition the defendant denied all its allegations.

There was judgment in favor of the plaintiff for all the taxes paid by him, and in favor of the defendant recognizing him ps the owner of the two lots claimed by plaintiff and as described by him in his petition.

The allegation in the supplemental petition, “that the advertisement under which the property was sold recited said prop*erty ac< measuring 30 feet front on Peach street' is not supported by the record.

The following is a copy of the advertisement which appears in the record:

“Teutonia Building and Loan Assn. City taxes for the year 1915, $6.60, No. 10,082: ‘Two certain lots of ground and improvements thereon situated in the Seventh District of the city of New Orleans, designated as loto Nos. 23 and 24, in square No. 634 hounded by Peach, Hamilton, Laurel Grove, and Maple streets and measures 30 feet front on Peach street by 120 feet in depth’.”

The description would have been more accurate had it said: .“Measures ‘each’ 30 feet”; but it is certain that “two certain lots” and not “one” were advertised.

Section 9 of Act 170 of 1898, p. 352, provides :

“That for the purpose of taxation and tax sales it shall be rmfficient to assess and describe all property according to such description as will reasonably identify the property assessed, etc., also Section 19.”

In our opinion the assessment and sale comprised all the land included in the two lots, 23 and 24. There is no doubt that the lots assessed and sold were the numbers 23 and 24, which carried with 'them all the lots contained. 43 A. 727 (730). It is sufficient if it is made clear that the property assessed and sold is that owned by the party assessed’ in a particular square.

In the case of Gouaux vs. Beaulien, 123 La. 684, the court reviews the jurisprudence on the question of description of property sold for taxes.

The syllabus reads as follows:

“It is not claimed in this case that there was a misdescription of the property assessed and sold or that defendants have taken possession of property not intended to be sold but that there was ‘uncertainty’ in the description of the property sold at tax sale and under the description of the tax deed it could not be identified. As a fact, the defendants have identified and taken possession of the land, it being the exact quantity of land and the only land owned by the person in whose name it was assessed in the section, township, and range mentioned according to the official maps.” Shelley vs. Friedrichs, 117 La. 684, 42 So. 218.

“The tax sale of one-half of a certain square of ground means the certain and determinate half square owned by the party assessed, and not an undivided one-half interest in the square.” Xeter vs. Dalgon, No. 7359 Orl. App. Alos No. 7619, 2 La. App. 196.

“Where A, the tax debtor, owns certain lots in a particular square, the municipal number and street boundaries of which are given, the property is sufficiently described for the purposes of its assessment and rale for taxes as ‘certain lots (in the square designated) assessed to A, such description including all the lots owned by A in the square described.” Webers’ Heirs vs. Martinez, 125 La. 663; 112 La. 797.

The exception of prescription is based upon Article 233 of the Constitution of 1898, which reads as follows (eliminating all parts not applicable):

“No rale of property for taxes shall be set aside for any cause except on proof of dual assessment or of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within three years from the date of recordation of the tax deed as to sales made hereafter.”

The suit in this, case was file.d on August 10, 1922, more than four years after the recordation of the tax deed.

Under the text of Article 233, the action to annul the sale was prescribed by three years, inasmuch as there was no allegation of dual assessment or of payment of the taxes for which the property was sold. Canter vs. William’s Heirs, 107 La. 77, 31 So. 627; Ashley Co. vs. Bradford, 109 La. 642, 33 So. 634; Simoneaux vs. White Castle Lumber & Shingle Co., 112 La. 221, 36 So. 328; Levy vs. Gause, 112 La. 797, 36 So. 684; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 So. 938; Prater vs. Craighead, 118 La. 628, 43 So. 258; Richards vs. Fuller, 122 La. 848, 48 So. 285; Holland’s Heirs vs. Southern States Land & Timber Co., 124 La. 406, 50 So. 436; Weber’s Heirs vs. Martinez, 125 La. 666, 667, 51 So. 679, In re. Realty Co., 127 La. 213, 53 So. 526; Hirst vs. Xeter Realty, 138 La. 402, 70 So. 339; Orl. App. Nos. 7774, 7861.

This prescription applies even as against minors. 124 La. 100.

It protects the want of notice. Weber’s Heirs vs. Martinez, 125 La. 666, 51 So. 679; In re. Realty Co., 127 La. 213, 53 So. 526; State vs. Celestin, 138 La. 409, 70 So. 342.

“Though property may have been assessed in the name of one not the owner, a sale for taxes, predicated on such assessment falls, nevertheless, within the meaning and operation of Article 233 of the Constitution, and will not be set aside, save in the case specially provided, unless the (proceeding to annul be instituted within the time prescribed by the article.” Crillen vs. N. O. Terminal Co., 117 La. 350, 41 So. 645; Bradley vs. City of New Orleans, 153 La. 282, 95 So. 718; Weber’s Heirs vs. Martinez, 125 La. 666, 667, 51 So. 679; Guillory vs. Elms, 126 La. 560, 52 So. 767; Richards vs. Fuller, 122 La. 849, 48 So. 285.

In the last case it was also held that the validity of the tax sale was not affected by the fact that the property, after the sale, was assessed in the name of the former owner and that taxes were received from him.

The presumption is that possession of the property sold for taxes followed the act of sale. C. C. 2479 (2455); Canter vs. William’s Heirs, 107 La. 78, 31 So. 627; Carey vs. Cagney, 109 La. 82, 33 So. 89; 9 Ashley Co. vs. Bradford, 109 La. 653, 33 So. 634; Ashley Co. vs. Bradford, 109 La. 642, 33 So. 634; Hirst vs. Xeter Realty, 38 La. 404, 70 So. 339.

“The prescription of three years is applicable even though the property is not in the actual possession of the purchaser and though it consists! of wild vacant lands.'” Ashley Co. vs. Bradford, 109 La. 642, 33 So. 634; Carey vs. Cagney, 109 La. 82, 33 So. 89; Hirst vs. Xeter Realty, Ltd., 138 La. 399, 70 So. 339; Hirst vs. Xeter Realty, Ltd., 138 La. 403, 70 So. 339; 7 Orl. App. 192.

The jurisprudence is succinctly stated by Judge Rodgers in Pickens vs. Dellinger, 161 La. 694, 109 So. 391, as follows:

“Defendants (owners) argue that since plaintiff (purchaser at taxe sale) was never in possession he cannot successfully interpose the plea (of prescription). The argument is not sound. Under our jurisprudence; it is only when the tax debtor is in actual corporeal possession of the property, or in cases of dual assessment or prior payment of the taxes that' the prescription will not run in favor of the holder of the tax title, It is applicable in all other cases. Here the tax debtors were not in (possession of the property, and they are not before the court contesting the tax title.”

But in interpreting Article 233, the Suprme Court has said that the prescription of three years did n.ot run against a tax delinquent in actual, physical possession of the property at the time of the tax sale and as long as he remained in possession; in other words, that prescription was suspended during the actual possession of the tax debtor. Koen vs. Martin, 110 La. 242, 34 So. 429; In re. Seim, 111 La. 555 (562), 35 So. 744; Tieman vs. Johnston, 114 La. 112-115, 38 So. 75; Bartley vs. Sallier, 118 La. 969, 42 So. 657; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 So. 938; In re. Sheehy, 119 La. 609 (615-a), 44 So. 315; Hirst vs. Xeter Realty, 138 La. 399, 70 So. 339; Xeter Realty, Ltd., vs. Basler, 140 La. 891, 74 So. 185; Adsit vs. Park, 144 La. 937, 81 So. 430; Bradley vs. City of New Orleans, 153 La. 281, 95 So. 718.

“The burden of proof is upon the plaintiff (the (purchaser at tax sale) to show that his title has been quieted by the prescription of three years.” In re. Seim, 111 La. 562, 35 So. 744; Huntington vs. Westerfield, 119 La. 615, 44 So. 317.

The pivotal question to he decided therefore is, was plaintiff in the possession of these two lots at the moment of tax sale or for three years thereafter?

The plaintiff did not testify at the time of the trial, he was in Los Angeles since 1915.

The only witness in the question of possession is one Albert Armemann. He testified that he had been living for about seven years in the same block or square, which contains the two lots in question; about the year 1915, two gentlemen, he did not know, called on him and one of them told him he was the owner of the two corner lots; witness told him he was using these lots with the permission of Mr. Knight, the owner; the same gentleman told him to go ahead and use the lots; he cuts the weeds on them; he used them a short time; he was informed that Mr. Yeith was the man who bought the lots, and he leased them from him for two or three years; at the time he saw the gentlement there were two strands of barbed wire around the whole square, not only the two lots, but around the whole square; he saw Mr. Knight build it; the fence rotted down, and after he got permission from Mr. Veith, he repaired it with barbed wire which is still there; there was no division fence, only two strands of barbed wire around the square; the only two lota fenced off were those he occupied; about 30 feet from the two corner lots, his wife’s mother bought from Mr. Knight; Mr. Knight was using the whole place as a pasture with a fence around it; he said Mr. Knight had got permission to use them from the owner, and Knight told him he could use them; he used them about 6 or 8 months after that; they then remained vacant about a year; on August 1, 1918, he leased the lots from the defendant, he uqed them for two or three years after; he then told Mr. Veith he did not want them any more, but he continued using them to bring in a load of wood; he paid $6 a year rent up to 1920.

Philip J. Veith testified that' he handled defendant’s tax title properties; that on August 1, 1918, acting for defendant, he leased the two lots to Arneman; Arneman had occupied the two properties since that date; he stored wood and had a bee-hive upon it and kept horse and wagon upon it; there was a wire fence enclosing the property; he has a half interest in the property; prior to the tax sale there was a fence around the square, but at the time of the lease to Arneman it was understood he would fence in this property for the very purpose of acquiring (possession under the tax title.

We do not think that the plaintiff proved that he had possession of these lots at the time of the sale in July, 1918.

If any one had possession, it' was Arneman, and he had taken possession by permission of Knight whom he believed to be the owner. He never knew the plaintiff, Marque, and did not hold from him or for him.

It is true that two gentlemen, about the year 1915, called on Arneman and represented themselves as owners. But they did not give their names, and Arneman did not know them.

There is nothing to identify one of them as Marque.

But even if one of them was Marque, the testimony is that a few months after their conversation with Arneman, he, Arneman, abandoned the use of the lots and in July, 1918, the date of the tax sale, he was not in the enjoyment of it.

After July, 1918, Arnemnn rented from the defendant, represented by Mr. Yeith. There is no evidence to show that after the conversation of 1915, the plaintiff had possession of the lots, or any one for his account, or that he was heard of in connection with the lots.

The plaintiff having failed to show actual possesion of those lots by himself or by others for his account, has lost his right to contest the validity of the tax sale by the prescription of three years.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    Nos. 10,041 and 10,047
    (Consolidated)
    Orleans
    BROWN v. GULF REFINING CO. OF LA.
    (Feb. 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 715.
    An appellate court will remand • a case whenever the interests of justice require it.
    2. Louisiana Digest — Appeal—Par. 725; 737.
    In an appeal by a third party under C. P., 571, where the record fails to disclose the facts upon which the appeal is based, the cause will be remanded to permit such proof.
    Appeal from the Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.

      Action, by Evelyn Brown, et als., against Gulf Refining Company of Louisiana.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case remanded.
    Ford Dempsey & Morril, M. B. Williams, of New Orleans, attorneys for plaintiff, appellee.
    Denegre, Leove & Chaffe, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The facts in this ease are, as stated by counsel, .as follows:

“Robert Brown, a colored employee of the Gulf Refining Company of Louisiana, defendant and appellant, was fatally injured in an accident while at work on January 14, 1925.

“Evelyn Brown brought timely suit. in the Civil District Court for the Parish of Orleans, alleging that for over five years she had lived with Brown without benefit of clergy, and that she had two children as a result of this union and was, at the time of the accident and the time of suing, pregnant with another. It was alleged that Brown acknowledged these children as his, and that accordingly under section 8, subsection 2, paragraph (m) of the State Compensation Act (Act 20 of 1914, as amended), including under the term ‘children’, ‘acknowledged illegitimate children’, plaintiff should recover on behalf of her said children.

“The answer admitted Brown’s employment, the accident and his death as á result thereof, but for want of information denied the relationship of plaintiff or her children and their right to recover.”

There was judgment' in plaintiff’s favor and defendant appealed. A third person, Olivia Watson, alto appealed from the judgment, under C. P., 571. Olivia Watson in her petition for appeal alleges that she was married to Robert Brown on March 3, 1913, that a son was born of that union, now a minor of 12 years of age; that the children of Evelyn, granted compensation by the judgment are not entitled to the benefit of the provision of the compensation law, because they are adulterous bastards and incapable of acknowledgment. Attached to the petition are certificates of the recorder of births, marriages and deaths for the P.arish of Orlean&i attesting the recording of the marriage of Robert and Olivia and the birth of their son.

It is clear that Olivia as tutrix of her son has a material interest in this suit. It may be, as seems probable that her son, alone, is entitled to compensation for adulterous bastards are not recognized as defendants under the compensation statute. Gulling vs. Dalgarn Construction Co., No. 9523 Orl. App. But at any rate she is vitally interested in this suit, and clearly entitled to appeal from the judgment. It is obvious that both claimants can not recover. Evelyn’s children, in esse and in posse, and Olivia’s child cannot have judgment. In other words, if Olivia is correct in her contention, Evelyn’s judgment, in her favor as tutrix, must fall. We are referred to the case of Taylor vs. Allen, 151 La. 82, 91 So. 635, to the effect that third persons appealing from a judgment take the record as they find it and are not entitled to a remand for the purpose of introducing further testimony. Taylor vs. Allen, 151 La. 82, 91 So. 635; Ponchartrain Land Co. vs. Comer, 6 Orl. App. 358. However, that may be appellate courts may remand a cause whenever in their opinion the interest of justice requires it. In this case there can be no doubt of the right as well as the duty of the court to remand. The evidence in the record is insufficient to determine the case, as affecting’ the interest of the third party appealing. A very good reason for a remand. Succession of Allen, 43 La. Ann. 1071, 10 So. 304. See also Albinest vs. Y. & M. V. R. R. Co., 107 La. 133, 31 So. 675, a case very similar to the (present one.

For the reasons assigned the judgment appealed from is reversed and it is now-ordered that this cause be remanded for further proceedings not inconsistent with the views expressed.


text:
    No. 9539
    Orleans
    VETERS v. SWEENEY
    (Jan. 6, 1927. Opinion and Decree.)
    (Jan. 10, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Brokers—Par. 5, 15, 17, 18.
    An owner of property who employs a real estate agent as exclusive agent for a specified time owes the agent the agreed commission though the property be sold by another agent, if sold within the term mentioned in the contract.
    2. Louisiana Digest — Brokers—Par. 5, 15, 17, 18.
    The fact that the "agent belongs to an association of agents who co-operate in the sale of property under an agreement to divide the commission and the property is sold by another agent, a member of the association, who collects the cqmmisslion' from the owner, can not relieve the owner of his contractual obligation to pay the agent he employed.
    Ajppeal from Civil District Court, Divi-. sion “B”. Hon. Mark M. Boatner, Judge.
    Action by Miss Phene Veters against A. N. Sweeney.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Anna Judge Veters, S. Stanford Levy, of New Orleans, attorneys for plaintiff, appellee.
    Jno. R. Perez, H. G. McMahon, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a real estate agent, sues for a commission upon the sale of certain real estate belonging to defendant. Her claim is based upon the following contract:

“Miss Phene Veters, Agent: In consideration of your efforts to find a buyer for the property, 2217 Wirth Place, and your, listing of same with the Multiple Listing System, of the New Orleans Real Estate Agents’ Association, I employ you or your successors, exclucively, to sell same for $9500 cash, or for any other price or terms hereafter agreed upon, and I agree to pay you or your successors a commission at the regular rate of three per cent, as fixed by the New Orleans Real Estate Agents’ Association, on the gross amount of any agreement to sell or exchange bearing on said property made during the existence of this contract, or on the gross amount of any such agreement made within three months after the expiration or termination of this contract, with anyone to whom said property has been quoted, directly or indirectly during the term of this contract. I give you the exclusive authority to post signs on the property, to accept a non-interest bearing deposit of ten per cent of the sale price when catisfactory offer to purchase said property is made * * * out of which deposit you may deduct your commission as above. In case .of employment of counsel to enforce this contract, I will pay twenty-five per cent additional as attorney’s fees, also all costs. As you are to act upon the faith of this employment and contract', it is to remain in full force and effect for a period of six months. I agree to refer all applicants, to you and not to interfere in the sale of said property during the term of this contract. (Signed) A. N. Sweeney.

“I accept the above employment'.

“(Signed) Miss Phene Veters.”

Defendant admits the contract and the sale of the property. He denies any liability to plaintiff upon the ground that he paid the commission ($270) to one N. J. Clesi, a real estate agent, who sold the property. He defends his rights to pay Clesi upon the ground that Miss Veters listed the property with the Multiple Listing System of the New Orleans Real E’state Agents’ Association, as she was obliged to do under her contract, and that according to the rules of that system Clesi was entitled to receive the commission. Clesi, called in warranty by the defendant, filed a reconventional demand against defendant, which upon rule taken by plaintiff was stricken from the record and no appeal has been taken from that judgment, hence we can not consider the reconventional demand.

There was judgment in favor of plaintiff as prayed for, against' the defendant, Sweeney, and in defendant’s favor as prayed for against the defendant N. J. Clesi, called in warranty. Both defendants have appealed.

So far as the defendant Clesi is concerned, his defense, if any he has, is involved, and must stand or fall with the defence of Sweeney. We have considerable doubt as to the proposition advanced by the defendant to the effect that the rules of the Multiple Listing System are written into the contract because of the presence of the words “In consideration of your efforts to find a buyer' * * * and your listing the same (property) with the Multiple Listing System. * * * I employ you,” etc., and more doubt that any provision of that system, or the rules adopted for its operation, could override the positive provisions ■ of the contract employing plaintiff exclusively and agreeing to pay her the commission, however, defendant’s counsel has been unable to point to any provision of the Multiple Listing System rules, which are in evidence, which would authorize the selling agent to collect the money due as commission. In fact those rules seem to defer to what ia called the. listing agent, a term which would apply to plaintiff in this case, the apparent object being to protect the listing agent in his relation to his customer. It is true that the rules provide that property listed under the system shall be placed with all member agents for sale and that the commission shall be divided between the selling and listing agent, but s.uch an arrangement does not concern third persons and can not justify defendant in paying to Clesi, the selling agent, the whole nor any part of the commission. Defendant had agreed to pay plaintiff the commission, if the property was sold under the terms of the contract, and it was admittedly so sold. Defendant owes plaintiff her commission. We are not concerned with plaintiff's* obligation to Clesi, as that matter is not before us.

For the reasons assigned the judgment appealed from is affirmed.


author: JONES, J.

text:
    No. 10,706
    Orleans
    THIBERGE PRINTING CO v. DRUMM
    (Feb. 14, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 125.
    Evidence unobjected to takes the place of pleading.
    2. Louisiana Digest — Appeal—Par. 625.
    On questions of fact the judgment of the lower court will be affirmed unless clearly erroneous.
    Appeal from First City Court, Section “A”. Hon. W. A. Babns, Judge.
    Action by H. A. Thiberge Printing . Company against Ed. T. Drumm.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    O. S. Livaudais,. of New Orleans, attorney for plaintiff, appellee.
    ■ Puneky & Barrios, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for one hundred and forty and 00-100 ($140.00) dollars,, balance due for material and labor in printing fifteen hundred pamphlets.

The (petition alleges that the total bill was two hundred and 00-100 ($200.00) dollars, that fifty and 00-100 ($50.00) dollars had been paid thereon by defendant and that a credit of ten and 00-100 ($10.00) dollars had been allowed on defendant’s request.

The defendant after admitting the payment of fifty and 00-100 ($50.00) dollars, denying that he requested a credit of ten and 00-100 ($10.00) dollars, but admitting that he asked that the binding be left unfinished, avers that petitioner’s contract was made by him as agent for R. J. Williams of Missicteippi and that he (defendant) owes plaintiff nothing.

As the preponderance of evidence on the question of agency is clearly with plaintiff, defendant’s main argument is on a question of law, namely, that the suit was brought on a quantum meruit and that plaintiff can not recover on a contract although both parties testified that the contract price was two hundred and 00-100 dollars ($200.00) dollars.

Had defendant objected to the evidence of plaintiff tending to show the contract there might have been something in the argument, but the principle that evidence unobjected to takes the place of'pleading is so deeply grounded in our law that it is hardly necessary to cite authorities.

See Draper vs. Richards, 20 La. Ann. 306.

State vs. Mechanics Bank, 35 La. Ann. 562.

Defendant cites Nogan vs. Gibson, 12 La. 456, as authority for his (position.

In this case suit was brought on a quantum meruit for a balance of twenty-three hundred and eighty-four and 00-100 ($2,384.00) dollars for work on a building well worth forty-five hundred and 00-100 ($4,500.00) dollars. Defendant answered that the work was done under a contract for twenty-five hundred and 00-100 ($2,500.00) dollars, and that twenty-one hundred and 00-100 ($2,100.00) dollars had been paid thereon and balance was not due because work was never completed. The evidence showed there was a contract. In the course of the opinion the court said:

“The court further stated, that under the pleadings, if the jury wan satisfied there was a contract, as stated in the answer, they were bound to find a verdict for defendant, that plaintiff could not recover for extra work in the present action.”

In other words, the court holds that the price of the work had been fixed by contract and that plaintiff could not demand more than that price. Plainly that case has no application here.

For the above reasons the judgment is affirmed.


author: CLAIBORNE, J.

text:
    No. 9557
    Orleans
    FREED REALTY CO., Appellant, v. SINGER
    (Jan. 3, 1927. Opinion and Decree.)
    (Jan. 31, 1927. Rehearing Refused..)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 197, 333.
    Answers by one of the parties to interrogatories on facto and articles propounded by the other are equivalent to a counter letter and have the same force and effect.
    2. Louisiana Digest — Sales—Par. 8; Mortgages — Par. 4.
    The conveyance of property in the form of an act of sale does not vest ownership in the , apparent buyer if the act was really intended by both parties to be a mortgage or security.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Freed Realty Co., Inc., against Isidore Singer.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    E. M. Stafford, Daniel Wendling, of New Orleans, attorneys for plaintiff, appellant.
    A. D. Danziger, of New Orléans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit to be recognized as owner of immovable property.

The plaintiff alleged that 'it appeared by an act before E. M. Stafford, notary, dated September 20, 1922, that C. S. Thomas sold to Isidore Singer two lots of ground on Apricot street, more fully described in said act, for the price of $1300; but the truth was that the plaintiff was the purchaser of said property and paid the price of $1300, and it was agreed, verbally, between plaintiff and defendant that' whenever requested the defendant would transfer the title of said property to plaintiff by notarial act, but that the defendant has refused to transfer said property to plaintiff. Plaintiff prayed for judgment recognizing it as the owner of the property mentioned in said petition.

The .plaintiff annexed to its petition interrogatories on facts and articles to be answered by the defendant.

The interrogatories' were as follows:

1st. Ia it not a fact that the said property was transferred to you merely for the convenience of the plaintiff who requested you to appear before said notary and take title in your name, and is it not a fact that the consideration for the sale, $1300, was' paid by the plaintiff and that you have no title or interest in said real estate and that the plaintiff is the real owner of the property?

2nd. Was it not agreed with the plaintiff that you were to transfer said property to the plaintiff?

The defendant denied all the allegations except as hereafter set forth.

Answering the interrogarotiesi he admitted the sale of the property to him and averred:

“That at the time the act of sale was passed before E. M. Stafford, notary public, on September 20, 1922, as set forth in plaintiff’s petition, the plaintiff herein was and is justly and truly indebted unto your petitioner in the sum of $1309.74 for this, to-wit: First, that in December of 1920, respondent had sold and delivered to the plaintiff herein, the materials fully set forth in the annexed list and used in the premises belonging to the plaintiff herein, at 1035 Iberville street amounting to $271.09; second, that the said plaintiff was indebted to respondent for materials furnished to the premises 3805-07 Annunciation street in March and April of 1922, amounting to $388.65, as fully shown on the annexed list made part hereof; third, and plaintiff was further indebted unto respondent in the sum of $650, being ten per cent builder’s commission or profit on the house built by respondent for plaintiff at 2223 Peniston street in the latter part of 1920, and the early part of 1921, making a total as above set forth of $1309.74.

“That said items run respectively with interest as follows: On $271.09 from December 31, 1920, until paid; on $659 from April 1, 1921, until paid; and on $388.65 from April 30, 1922, until paid. Respondent avers that in order to secure respondent for the amount thus, due to him, the plaintiff herein caused the property described in plaintiff’s petition to be deeded over to respondent and the plaintiff did, as set forth in plaintiff’s petition, pay the purchase price thereof and respondent agreed that whenever the said property was sold, to transfer the property to any purchaser designated by the Freed Realty Co., provided that the entire amount due respondent should be paid out of the sale price of said property, and respondent avers: that he has always been ready and willing and is still ready and willing to transfer said property to whomsoever the plaintiff herein may designate, provided that respondent is paid the above mentioned amount with interest and costs, in accordance with the agreement entered into between plaintiff and defendant”.

There was judgment for defendant and plaintiff has appealed.

Upon the trial of the case the plaintiff called Mr. Freed as a witness for the purpose of disproving and attacking and contradicting so much of the answer of the said Isidore Singer as relates to any indebtedness set ■ out in the answer of the said Isidore Singer and to offer other witnesses for the same purpose, and to have prove that those claims of $1309.74 are not due, and likewise that there was no understanding that this property was to be put in the name of the defendant as security for debt.

Upon objection of the defendant based on Articles 354, 356 of the Code of Practice and 2440, 2236, 2275, 2290 of the Civil Code', and the case of Lariede vs. Perkins, 132 La. 660, the court excluded the evidence.

Article C. P. 354, as amended by Act 243 of 1868, reads as follows.

“The answers of the party interrogated aree vidence, but do not exclude adverse testimony, and shall be weighed by the judge as other testimony.”

Article 2440 (2415) reads ■ as follows:

“All sales of immovable property shall be made by authentic act or under private signature. Except as provided in Article 2275 (2255), every verbal sale of immovables shall be null, as well for third persons as for the contracting parties. themselves, and the testimonial proof of it shall not be admitted.”

The jurisprudence interpreting these articles is as follows:

Answers to interrogatories cannot be contradicted by parole with a view of establishing title to immovables. 3 L. 119; 6 R. 439; 10 R. 472-473; Marionneaux vs. Edwards, 4 La. Ann. 103; Semere vs. Semere, 10 La. Ann. 704; Stocks vs. Furguson, 10 La. Ann. 132; Knox vs. Thompson, 12 La. Ann. 115; Barbin vs. Gaspard, 15 La. Ann. 540; Gusman vs. Mrs. Hearsy & Husband, 26 La. Ann. 252; Godwin vs. Frederick, 42 La. Ann. 738, 7 So. 744; State vs. Schlemmer, 42 La. Ann. 1166, 8 So. 307; Larido vs. Perkins, 132 La. 660, 61 So. 728.

Parole evidence to show that a purchaser bought property in, his name for account of another, or as agent or otherwise, is not admissible. State vs. Bank of La., 5 M. (N. S.) 354; Muggah vs. Greig, 2 La. 596; Badon vs. Badon, 4 La. 169; Liatuad vs. Baptiste, 3 R. 452; Stierle vs. Kaiser, 45 La. Ann. 580, 12 So. 839; Breed vs. Gua, 10 R. 35; Bauduc vs. Conrey, 10 R. 471; Seaton vs. Sharkey, 3 La. Ann. 333; Fuselier vs. Fuselier, 5 La. Ann. 132; Hoover vs. Miller, 6 La. Ann. 205; Heiss vs. Cronan, 12 La. Ann. 213; Douville vs. Sun Mutual Ins. Co., 12 La. Ann. 261; Wooters vs. Feeny, 12 La. Ann. 879; Wood vs. Harrell, 14 La. Ann. 62; to establish title in plaintiff or to contradict answers to interrogations. Smith vs. Lambeth’s Executors, 15 La. Ann. 567; Nouvet vs. Virty, 15 La. Ann. 653; Barbin vs. Gaspard, 15 La. Ann. 539; McKenzie vs. Bacon, 40 La. Ann. 162; Perrault vs. Perrault, 32 La. Ann. 636; Hackenburg vs. Gastskamp, 30 La. Ann. 898; Lord Cecil vs. Board of Liquidation, 30 La. Ann. 421; Hamlin vs. Board of Liquidators, 30 La. Ann. 449; Barkdull vs. Herwig, 30 La. Ann. 620; Buck & Beauchamp vs. Blair & Buck, 34 La. Ann. 767; Succession of Thomas, 12 R. 215; Barrow vs. Grant’s Estate, 116 La. 953, 41 So. 220; Hoffmann vs. Ackermann, 110 La. 1070, 35 So. 293; Succession of Lewis vs. Lewis, 129 La. 648, 56 So. 621; Succession of Block, 137 La. 307, 68 So. 618; Edenborn vs. Blacksher, 137 La. 898, 69 So. 737; Hanby vs. Texas. Co., 140 La. 189, 72 So. 933; Whelage vs. Lotz, 44 La. Ann. 600, 10 So. 933.

In all these cases and in the Larido case the single question was one of title; there was no money claim by defendant, nor question of security.

In his reasons for judgment the learned judge of the district court said:

“It is, however, well settled by the jurisprudence of thic* State, that where there has been a failure to exact a counter letter in a case like this and resort is had to interrogatories on facts and articles, the answers to the interrogatories stand in lieu of a counter-letter, and whatever is stated in the answers to the interrogatories on facts and articles must be taken ast rue. They cannot be divided, nor can they be contradicted in whole or in part by parol; they stand as a whole. But it is settled by the text of the Louisiana law, by an unbroken line of decisions, supporting the text, that title to real estate cannot be proven by parol, but can be proven only in writing, and it also provides that in questions of real estate, interrogatories on facts and articles can be propounded and the answers to such interrogatories are regarded as written evidence, but those answers stand or fall, just as a wrotten document would stand or fall. The .answers make it clear that this department holds title to this real estate, and is by right and title to continue to hold that title in his name until .the amount of the indebtedness claimed by him is paid to him.”

The learned judge is absolutely correct in his exposition of the law, but his attention was not called to another line of decisions which say that when the counter letter. or the answers to interrogatories disclose by themselves that the act purporting to be a sale was merely intended to serve as security for a debt due the apparent purchaser that' the act will not be treated am a sale but as a mortgage or pledge, or antichresis, conferring upon the transferee an innominate jus ad rem upon the property conveyed.

Parties may call their acts what they please, but courts will interpret them by the intention of the parties and give them the consequences resulting from the law.

If we must assume that the answers of the defendant to the interrogatories serve as a counter letter and are true as to the nature of the act translating some sort of right to him, then the act to him was; not translative of property but was only a security for the payment of the debt mentioned in his answers to the interrogatories and must be so interpreted and applied. Such was the jurisprudence since an early period. Phillips vs. Paxton, 3 M. (N. S.) 39; 1 N. S. 417-524; 2 N. S. 22; 3 N. S. 531; 6 N. S. 583; Hayden vs. Nutt, 4 La. 71; Gleiss vs. McHatton, 14 La. Ann. 560; Parmer vs. Mangham, 31 La. Ann. 350-355; Wang & Cottam vs. Finnerty, 32 La. Ann. 94; Herold vs. Stockwell, 32 La. Ann. 949; Crozier vs. Ragan, 38 La. Ann. 154; Henkel vs. Mix, 38 La. Ann. 272; Prude vs. Morris, 38 La. Ann. 768; Jackson vs. Lemle, 35 La. Ann. 855.

Far from contradicting the answers of defendant to the interrogatories, plaintiff was on the contrary attempting to enforce the contract set forth in those answers, namely, not a sale but a security, which he had the right to do under the answers and the law. The plaintiff was not attempting to disprove title in defendant who had already admitted he had no title, but to disprove so much of the answer as related to any indebtedness and to prove “that those claims were not due”.

In the case of Syndics of Bermudez vs. Ibanez, 3 M. 39, where the plaintiff transferred his property as in this case, the court said:

“It being ascertained that Ibanez was not the owner of the land in dispute, it remains, to inquire what kind of right he had on that land. His right was not that of a mortgagee, nor that of a purchaser under a claim of redemption, nor can it strictly be called an antichresis. The object of the contract was to vest him with as ample a security as could be given, and when the court further consider that in cases of antichresis, to which this may in some degree be assimilated, the debtor cannot before full payment of the debt, claim the enjoyment of the immovable estate which he has given in pledge, they feel disposed to secure to the defendant, Ibanez, the immediate payment of his debt', independent of any agreement of the other creditors of Bermudez.” 1 N. S. 522; 3 N. S. 529.

“A contract of pledge in the form of a sale will not protect the property of the pledgor in the hands of the pledgee from his creditors.” 1 N. S. 417; 2 N. S. 22; Gleiss vs. McHatton, 14 La. Ann. 560.

“A debtor may validly convey his immovable (property to his creditor in the form of a sale, in order to secure thé creditor, when the value of the property is not in excess of the debt due, reserving to himself the right to redeem within a certain period.

“In such a transaction the conveyance, although in the form of a sale does not vest the ownership of the property in the creditor, hut may give' him a right to be paid by priority out of its proceeds.” Parmer vs. Mangham, 31 La. Ann. 348; Wang & Cottam vs. Finnerty, 32 La. Ann. 94; State vs. Corcoran, 38 La. Ann. 949.

“The conveyance of property in the form of a sale does not vest the ownership in the apparent buyer if the deed was really intended by both parties to he a mortgage.” Crozier vs. Ragan, 38 La. Ann. 154.

"The answers of one of the parties to interrogatories on facts and articles propounded by the other are equivalent to a counter letter and have the same force and effect.” Succession of Brugier, 146 La. 31, 83 So. 366; Sherman vs. Nehlig, 154 La. 30, 97 So. 270.

“This court has held over and over again that when parties really intend to create a mortgage for the security of an existing or contemplated debt and adopt the form of a sale with counter letter, which taken together, exhibit such intention, the sale will be construed as a mortgage and effect be given to it accordingly. The whole subject with numerous decisions thereon was received in Parmer vs. Mangham, 31 A. 348, and very lately we applied the doctrine in Crozier vs. Ragan, 38 A. 154.”

Considering the answers of defendant to the interrogatories equivalent to a counter letter it follows clearly that the pretended act of sale was not intended as translative of the title to the property but only as a security for the debt, and must he so considered by the court. But the amount of the debt is not ascertained and is in dispute, and the plaintiff should he. given an opportunity to establish it with certainty.

It is therefore ordered that the judgment herein be reversed and set aside; and it i.4 now ordered that there be judgment recognizing the plaintiff as the owner of the property mentioned in the petition therein, this judgment to take effect only when and after full payment shall have been made to the defendant herein of the amount due to him by the plaintiff herein; and in order to ascertain the exact amount due by plaintiff to defendant " this cause is remanded to the district court for further proceedings according to law and this opinion.

Costs of appeal to be paid by defendant and appellee, costs of the lower court to await the final decree herein.


text:
    No. 10,612
    Orleans
    SEYMOUR & CO v. ARTZ
    (Dec. 13, 1926. Opinion and Decree.)
    (Jan. 3, 1927. Rehearing Refused.)
    (March 2, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Bills and Notes— Par. 116.
    The holder of a demand note, acquired a reasonable time after maturity, is a holder in good faith if otherwise within the statutory definition.
    2. Louisiana Digest — Bills and Notes— Par. 73, 78.
    A statement of the consideration for which a note is given and a clause giving the maker the right to discount at a fixed rate of 5 per cent does not, when written across the face of the note, destroy its negotiability.
    Appeal from First City Court, Section “C”. Hon. W. V. Seeber, Judge.
    Action by William D. Seymour & Company against Frank Artz, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    H. L. Hammett, of New Orleans, attorney for plaintiff, appellant.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellee.
   OPINION.

WESTERFIELD, J.

Plaintiff sued Frank Artz, doing business under the name of Galliber Cleaners and Dyers, H. J. Marcel, doing business under name of Marcel Welding Company, and C. J. Boudreaux, praying for judgment against the defendants, in solido, in the sum of one hundred, twenty-two and 50-100 ($122.50) dollars, the claim being founded upon a promistpry note for a like sum, signed by Galliber Cleaners and Dyers, Frank Artz, and endorsed by Marcel Welding Company and Boudreaux.

Boudreaux was never cited and Marcel, whose testimony is uncontradicted, declared that the endorsement', Marcel Welding Company, was made without his knowledge or consent. If plaintiff has a case, it is against Artz, only, that judgment can be given.

Plaintiff’s case depends upon the negotiability of the note sued on.

It is alleged, and not denied, that the note was signed by Artz and delivered to Boudreaux and acquired by plaintiff from Boudreaux fqr value, and before maturity, (if a demand note is susceptible of acquisition by a, third person before maturity). But, it is contended, that the note was not negotiable, and, that it was given originally to Boudreaux, as consideration for a certain boiler which was never delivered to Artz, evidence of which fact appears upon the face of the note, and that plaintiff, in acquiring the note from Boudreaux, did not thereby become a holder in due course, under the negotiable instrument law.

It is also contended, though with less resistance, that a demand note is due the moment it is signed, and, is therefore, not susceptible of acquisition by a third person before maturity.

On the last point, we observe that the negotiable instrument law reads as follows:

“Sec. 1. An instrument to be negotiable must conform to the following requirements:

“Sec. 2. Must contain an unconditional promise or order to pay a sum certain in money.

“Sec. 3. Must be payable on demand or at a fixed or determinable time.

“Sec. 4. Muct be payable to order or to bearer; and

“Sec. 5. Where the instrument is addressed to a drawee, he must be named, or otherwise indicated therein with reasonable certainty.”

We quote the following from Corpus Juris, vol. 8, p. 408, verbo bills and notes:

“In some cases it has been held that paper payable on demand is not overdue for the purpose of transfer, so as to make the transferee a purchaser after maturity, until after a demand has been made, and some have held that it is overdue immediately after it is issued. Most of the courts, however, hold that it is not overdue for the purpose of transfer until after the lapse of a reasonable time and that it is then overdue.”

We do not stop to ascertain whether, in the jurisdictions holding demand notes overdue immediately, the negotiable instrument law has been adopted, because we prefer to align ourselves with the majority holding that such notes are not overdue until the lapse of a reasonable time. Moreover, Section 53 of the Negotiable Instrument Law provides that “where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course”.

The holder of a demand note negotiated a rasonable length of time after issue is, therefore, a holder in due course. The note we are considering was negotiated two days after issue, obviously a reasonable time.

The argument that the note is not negotiable on its face is based upon the following inscription which appears in red ink written across the face of the note:

“The maker of this note reserves the right to an installment to cover said note at fifteen dollars per month until paid, and also reserves the right to discount same at any time less 5 per cent on remaining sum the amount being payment of boiler and note herewith cash.”

The writing is somewhat obtcure and illegible, but the meaning is fairly evident to the effect that the maker reserves the privilege of paying- in installments and to discount any amount remaining at any time and that the consideration of the note was a boiler.

Does this inscription render the note non-negotiable isi the final question?

It has often been held that a statement on the face of the note, reciting the consideration for which it is given, does not affect its negotiability, even after the adoption of Act 64 of 1904, the Negotiable Instrument Law. Bank vs. Holland, 5th Ann. 363; Maurin vs. Chambers, et al., 16 La. 207; Sadler vs. White, 14th Ann. 177; Bonart vs. Rabito, 141 La. 970, 76 So. 166; Tyler vs. Bank, 157 La. 249, 102 So. 325; Bank vs. Carpenter, 160 La. 1033, 107 So. 860.

•In Bank vs. Dresser, 132 La. 538, it was held that a stipulation authorizing the application or appropriation to the payment of the note at maturity of any money, stocks, bonds or other property on deposit, or to the credit of the maker in the books of the bank destroyed the negotiability of the note becaucte such a stipulation was an order to do an act in addition to the payment of money which, under the law, rendered the note non-negotiable. The Dresser case, however, was overruled in the case of Bonart vs. Rabito (supra), where the contrary was held. In Taylor vs. Bank (supra), it was held that a note bearing on its face this inscription “Value to be received in rent for store No. 443 Camp street, for month of April, 1920, as per lease this date,” was negotiable.

The discount provision in the note casts some doubt upon its negotiability.

“It has been held in Minnesota, Nebraska, Texas and Canada that a promise to pay a certain sum, with a provision that a fixed discount is to be allowed, if paid before maturity, or before a certain date is negotiable; and in Ohio the same is held as to provision for discount if paid at maturity. However, the contrary has been held in Michigan, Oklahoma, South Dakota and Tennestee. So in Iowa with the provision that the maker may pay a reduced amount and sell a certain amount ofgoo ds, as the payee’s agents, within a certain time is not negotiable. The distinction drawn by the Minnesota court, and which seems to be supported by the better reasoning is this: A (promise or order to pay a definite sum plus or minus a definite amount or discount is negotiable while a promise to pay a stated sum of money plus or minus an indefinite amount or discount is not negotiable.”

Corpus Juris, vol. 8, p. 146, verbo “Bills and Notes'”.

We are not aware of any ruling on this point by our own Supreme Court or by this court. We have concluded to place ourselves with those jurisdictions which favor the negotiability of the note under circumstances siich. as obtain in this case and we resolve the doubt in this way.

The judgment appealed from is reversed to the extent that it absolves the defendant Frank Artz and it is now ordered that there be judgment in favor of plaintiff, William D. Seymour and Company, Inc., and against Frank Artz in the sum of $122.50 with legal interest thereon from July 31, 1925, and ten per cent attorney’s fees on principal and interest and all costs.


author: WESTERFIELD, J. WESTERFIELD, J.

text:
    No. 9278
    Orleans
    NOBLE, Appellant, v. UNION INDEMNITY CO.
    (May 10, 1926. Opinion and Decree.)
    (Jan. 17, 1927. Opinion and Decree on Rehearing.)
    (Mar. 2, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 172, 174; Pleading — Par. 62, 81, 82.
    Where plaintiff alleges that a policy of insurance does not represent the terms of the contract of insurance, mutually agreed upon, and prays that the policy be reformed so as to conform to the contract, a cause of action is presented, notwithstanding the fact that such allegations appear only in a supplemental petition in a suit which was originally brought upon the (policy as written. Nor is it necessary to discover the allegations of the original petition.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by C. O. Noble against Union Indemnity Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed. Reinstated on rehearing.
    Monroe & Lemann, W. J. Suthon, Jr., of New Orleans, attorneys for plaintiff, appellant.
    J. C. Henriques, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is appeal from a judgment maintaining an exception of no cause of action.

The petition alleges that on January 20, 1920, the defendant issued a policy to the firm of Gardiner and Noble covering liability for workmen’s compensation for a period of one year; that at that time the only work in which the firm of Gar-diner and Noble was> engaged was that of oil-producing and oil-well drilling in conjunction with the Gulf Refining Company as a joint venture under an agreement whereby the refining company paid one-half the expenses and Gardiner and Noble the other half as was well known to dedenfant’s agents who issued the policy; that this arrangement contemplated the payment of all compensation due employees on a basis of one-half by each party to the agreement; that defendant construed the policy issued to Gardiner and Noble as aforesaid accordingly and collected a premium upon a basis of one-half the payroll of the joint venture and ¡paid claims upon such basis; that when the term of the- policy issued to Gardiner and Noble expired the firm had dissolved but the same business was being carried on under the same arrangement with the qualification that the Gardiner and Noble interest was divided, Gardiner assuming one-fourth and the plaintiff assuming one-fourth of the expenses of. operation and compensation due injured employees; that upon being advised of this change the agents of the defendant recommended separate policies for Gardiner and Noble and acting upon their suggestion, Noble received a separate policy; that' plaintiff understood this separate policy covered his liability in the joint adventure; that the premium or as much thereof as was due was paid and finally that on November 21, 1921, during the term of this separate policy one Alvin J. Akers, an employee of the,joint adventure or as counsel puts it, the partnership of the Gulf Refining Company, Gardiner and Noble, was killed in an accident within the scope of the Workmen’s Compensation Act, involving the liability of the Gulf Refining Co., Gardiner and plaintiff for medical and funeral expenses and for compensation to dependents' of the said Akers, which at the time of filing of this suit amounted to $260.25 so far as plaintiff t&is concerned. He asks for judgment for this amount with reservation of his right to sue for such further sums as he may be called upon to pay in this regard.

To this petition an exception of no cause of action was filed bated upon the fact that the policy which was attached to the petition covered liability for injuries to the employees of plaintiff only and not employees of a partnership or joint enterprise. This exception was maintained with leave to amend so as to convert the action into one to reform the contract of insurance. Thereupon a supplemental petition " was' filed in which plaintiff after reaffirming the allegations of his original petition and fully reserving the benefit thereof alleged that “it was the mutual and common intention of both parties to the contract which said policy evidences, that same should cover petitioner’s one-fourth pro rata of the liability of the employer, under the Workmen’s Compensation Act, for compensation * * * payable to * * * employees in the course of the joint oil-producing and oil-well operations then being conducted jointly by the Gulf Refining Company, James W. Gardiner and petitioner”. The supplemental petition concludes with a prayer in the alternative, relief being again prayed for under the original petition, for a reformation of the policy so as to correct “a mutual error and mistake” and conform to the “common intention and understanding” of the parties. T'o this rupplemental petition defendant also filed an exception of no cause of action which was sustained and plaintiff has appealed.

Plaintiff’s counsel, consistently and strenuously, contended in argument' that his original petition presented a cause of action, asserting that the rules' of construction and interpretation sustain his position in this reg$-d. He cites Art. 1958 R. C. C.:

“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other furnish a rule for its interpretation.”

And Art. 1949 R. C. C.:

“When there is anything doubtful in one contract, it may be explained by referring to other contract's or agreements made on the same subject between the same parties, before ■ or after the agreement in question.”

And Corpus Juris, vol. 13, p. 546:

“Where the parties to a contract have given it a practical construction by their conduct, as by acts in partial performance, such construction is entitled • to great if not controlling weight in determining its proper interpretation, particularly where such interpretation is agreed on before any controversy has arisen.”

We are referred alto to Commercial Bank of New Orleans vs. City of New Orleans, 17 La. 190, and to Bowers Hydraulic Dredging Company vs. U. S., 214 U. S. 176; 143 Fed. 757; 216 Mass. 323, and 129 N. E. 291.

The argument proceeds, in the words of counsel—

“Accordingly, when the defendant voluntarily and with the full facts in its possession concttrued the insurance policy issued to Gardiner and Noble as applying not exclusively ’to an enterprise conducted solely by that insured, but to the interest of that insured in an enterprise conducted by that insured jointly with the Gulf Refining Company, it gave to the words used in that policy the meaning and the significance necessary to make the language apply to such a risk. When the time for renewing that policy came, Noble and Gar-diner, having severed their partnership relation, but being still engaged as; individuals in the same joint enterprise with the Gulf Refining Company, received individual policies of the same character as the previous ¡policy, except for the change in the insured from a partnership to an individual. We submit that in such a situation, there is a sufficient identity of parties to permit the plaintiff to invoke the doctrine of practical construction. When Noble, an an individual, received the policy in suit, he had the right to believe that its terms afforded to him, as an individual, the same coverage as to joint operations with some third person, as .the defendant by its conduct had led him to believe, was afforded the prior policy issued to the partnership of Gardiner and Noble.”

On this point, we concede the force of counsel’s argument' but we are also aware of the difficulty in going as: far as he does by construction. However, there is no doubt in our minds of plaintiff’s. right to reform the policy and in the same proceeding. Darega & Co. vs. Crescent Mut. Ins. Co. of N. O.; 7 La. Ann. 228, Argiumbau vs. Germania Ins. Co., 106 La. 148, 30 So. 148; Gaudet v.s. North River Ins. Co., 156 La. 719, 101 So. 118. Counsel admits plaintiff’s right to sue to reform the policy, and by way of supplemental petition in the same suit, but claims he has not done so. The argument seems to be that because of plaintiff’s insistence upon his original petition, he has not sued to reform; that the suit to reform can not be brought in the alternative. See Phillips, et al., vs. W. T. Adams Mach. Co., 52 La. Ann. 442, 27 So. 65; Harrison, et al., vs. Soulabere, 52 La. Ann. 707, 27 So. 111. No authority is cited in support of this position and we know of none. ' We are of opinion that plaintiff by his supplemental petition has presented a cause of action for the reformation of the policy sued on, and are pleased to observe that there is so little difference between counsel for appellee and ourselves as appears by the following concluding words in his able brief:

“I do not think there is any question that plaintiff cannot recover under his original petition, and if this court' holds that his supplemental petition has converted his suit into one to reform a policy only, then we have no complaint, but the facts are that his supplemental petition is not one of that kind, and, therefore, the judge was correct when he held that the plaintiff had not complied with his order, and not having complied with his order and his judgment, the supplemental petition likewise did not disclose a cause of action.”

The judgment appealed from is reversed and it is now ordered that the exception of no cause of action directed to the supplemental petition filed herein be overruled and the cause remanded for further proceedings according to law.

ON REHEARING.

WESTERFIELD, J.

We have carefully reconsidered this case in the light of the able arguments of counsel on rehearing with the result that we are confirmed in our original views.

Th only difference between the trial judge and ourselves consists in the opinion we entertain in resipect to the supplemental petition. We think this petition sufficient to convert plaintiff’s action into one to reform the policy sued on, while our brother below thought otherwise. The policy as written cannot support plaintiff’s demand. It must be shown that the policy does not evidence the contract between the parties, or plaintiff cannot recover. Our original decree is therefore reinstated.

Original decree reinstated.


text:
    No. 9522
    Orleans
    SCHOBER, Appellant, v. LEIBE
    (Jan. 3, 1927. Opinion and Decree.)
    (Jan. 31, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Malicious Prosecution — Par. 99, 14, 18; Pleading — Par. 62.
    When, in an action for damages for malicious prosecution, the petition alleges facts» which show that the defendant acted with probable cause, an exception of no cause of action will, be maintained and [plaintiff’s suit dismissed.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.

      Action by Victor W. Schober against Wm. Leibe, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. D. Danziger, of New Orleans, attorney for plaintiff, appellant.
    Wm. J. Guste, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for malicious prosecution.

The plaintiff alleged that on July 8, 1921, while a member of the firm of Schober and Thorn, he purchased from the William Leibe Refrigerator Manufactory a refrigerator for the sum of $115, less 5 per cent or $109.25 on the same day he. gave said concern a check for $40, and on August 8, 1921, mailed another check in the name of Schober and Thorn for $35 to the same concern; and that on September 6, 1921, plaintiff mailed a third check for $3.4.25 in the |ame of Schober and Boudreaux t'o the same concern, making a total of $109.25.

That the check dated July 8, 1921, was returned to the defendants N. S. F.; that thereupon the defendants sent A. H. Leibe to plaintiff who exhibited to him his bank book and convinced him that “there was in the bank on the morning of the day when the check was first ¡presented the qum of $39.68; that on the afternoon of the same day an additional sum of $39.10 was deposited in said bank making a total in said bank on said day of $78.78; thereafter William Leibe called on petitioner and informed him that said check had been returned by the bank three times marked “N. S. F.”; that at no time was the plaintiff overdrawn, as he informed William Leibe and offered to prove to him, and that said check was perfectly good.

That plaintiff heard nothing more of said check until he was arrested under an affidavit sworn out by William Leibe on June 27, 1922, in the following words:

“Personally, before me, Paul J. Pizzo, deputy clerk, appeared William Leibe, who having been duly c.worn, doth depose and say: That on the ____ day of ......................., 19____, in the Parish of Orleans and within the jurisdiction of the Criminal District Court, one V. Schober, et als., did then and there wilfully and unlawfully give a certain check to one William Leibe Refrigerator Mfg. Co. for the amount of $40 on the Whitney Trust and Savings Bank without sufficient funds to cover same in violation of Act 209 of 1914, etc.”

Plaintiff further alleged that the case was tried on May 10, 1923, when he was acquitted; that the action of William Leibe in causing his arrest was illegal and constituted malicious prosecution without cause and with malice aforethought; that in consequence of said arrest he was discharged from D. H. Holmes Co. and also from John Boudreaux; that his reputation has been permanently damaged, and that he has suffered damage to the extent of $5000 which he claims from defendants.

The defendants filed an exception to the. petition on the ground that it failed to “disclose any right or cauqe of action against any of the defendants”.

There was judgment maintaining the exception, and plaintiff has appealed.

The exception of no right or cause of action is based upon the allegations of the petition which shows upon its face that the defendant acted “with probable cause”.

Act 209 of 1914, p. 399, mentioned in plaintiff’s petition, reads as follows:

“An act to punish the giving of checks, drafts, or orders on any bank or other depository -wherein the person so giving such check, draft' or order shall not have sufficient funds or a credit for the payment of the same.”

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That any person who with intent to defraud, shall obtain money, • credit, goods, ■wares or anything of value by means of the making or drawing or uttering or delivering of any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon its presentation, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1000 or imprisoned not more than one year or both, at the discretion of the court. The failure of the person drawing, uttering or delivering such check, draft or order to pay the same within ten days after the receipt by him of written notice of its non-payment upon presentation, shall be prima facie evidence of intent to defraud, within the meaning of this Act.”

The following propositions as rules governing the law of malicious prosecution are abundantly sustained by the authorities quoted in defendant’s brief in the case of Godfrey vs. Soniat, 33 A. 916:

“In order to succeed in an action for malicious prosecution the plaintiff must make and prove all of the following four allegations:

“1st. That the defendant was, the prosecutor or the cause of the prosecution;

“2nd. That the prosecution terminated in favor of the plaintiff;

“3rd. That there was no probable cause for the prosecution. Girot vs. Graham, 41 La. Ann. 513, 6 So. 471; Ivers vs. Ryan, 42 La. Ann. 34, 7 So. 61; Citizens’ Bank vs. Miller, 44 La. Ann. 199, 10 So. 779; Mallard vs. Dejan, 45 La. Ann. 1270, 14 So. 238; Town of Thibodaux vs. Constantin & Bragard, 48 La. Ann. 338, 19 So. 135;

“4th. That it wás actuatéd by malice.”

All these elements must exist and the proof is upon the plaintiff.

Probable cause is such a state of facts or circumstances as would create in the mind of a man of ordinary caution and prudence an honest and reasonable belief of the guilt' of the party charged. Banken vs. Locke, 136 La. 155, 66 So. 763; Glisson vs. Biggio, 139 La. 23, 71 So. 204.

Probable, cause does pot depend upon the actual state of the case in point of fact, but upon the honesj and reasonable belief of the prosecutor.

However innocent the plaintiff may have been of the crime charged, it is enough for the defendant to show that he had reasonable grounds of believing him guilty at the time the charge was made.

A judgment of acquittal is not proof of want of probable cause.

If defendant shows probable cause, there must' be judgment in his favor. Girot vs. Graham, 41 La. Ann. 513, 60 So. 471; Citizens’ Bank vs. Miller, 44 La. Ann. 199, 10 So. 779; Mallard vs. Dejan, 45 La. Ann. 1270, 14 So. 238; Town of Thibodaux vs. Constantin & Bragard, 48 La. Ann. 338, 19 So. 135; State vs. O’Hara, 36 La. Ann. 93.

No amount of. malice will render defendant liable if he had probable cause.

Actions in damages for malicious prosecutions are not favored in law and must be cautiously entertained. From motives of public policy the prosecutor must, be protected,. Coleman vs. Hibernia Ins. Co., 36 La. Ann. 92; Lackey vs. Tiffin, 12 La. Ann. 53; Dearmond vs. St. Amant, 40 La. Ann. 374, 4 So. 72; Brelet vs. Mullen, 44 La. Ann. 194, 10 So. 865; Girot vs. Graham, 41 La. Ann. 303, 6 So. 137; Ivers vs. Ryan, 42 La. Ann. 32, 7 So. 61; Grant vs. Deuel, 3 R. 17.

The whole question therefore is, whether the petition shows upon its face that the defendant acted with probable cause, as the district judge concluded? We think with him that it does, in the contemplation of the very Act 209 of 1914, to which he resorted. The plaintiff purchased from the defendant a refrigerator for the price of $109.25 and in part payment thereof, on July 8, 1921, gave the defendant a check for $40; upon that very day, according to plaintiff’s petition he had in bank to his credit $39.68 only; that check was returned “N. S. F.” It is true that that plaintiff alleges that on the afternoon of that day he deposited $39.10, but there is no allegation that he informed defendant that he had made that deposit. The petition further alleged that thereafter the defendant informed him that the check had been reurned by the bank three times marked “N. S: F.”; that information contradicted plaintiff’s allegation that on July 8th, in the, afternoon, he had made a deposit of $39.10. It also contradicts the following allegation: that at no time was the plaintiff overdrawn. It was clearly the duty of the plaintiff to have cleared up the difference of accounts, if any existed, between the bank and him and to make the check good within a reasonable time.

The bank’s “N. S. F.” is entitled to more credit than plaintiff’s allegation.

The defendant had no right to interfere with plaintiff’s accounts at the bank and had no power to settle them.

The check of July 8, 1921, remained in sufferance until June 27, 1922, when defendant made the affidavit'. There is no allegation that the plaintiff settled his differences concerning his account with the bank, nor that he made the check good after its dishonor, on three successive occasions. The defendant had presented the check for payment on three successive occasions without avail and he was uqder no obligation to present it a fourth .time. The fact that the plaintiff bought the refrigerator and uttered a check in payment of it, which was returned three times “N. S. F.”, and that the plaintiff remained eleven months without honoring the check or paying the bill raised the presumption that within the meaning of the Act of 1914, that his inaction resulted from his. “intent to defraud”. The plaintiff’s argument that the defendant had no right' to resort to the Act of 1914 until ten days after written notice to him of its non-payment is without force. That section of the Act creates that notice as one kind of prima facie evidence of intent to defraud but is not exclusive of others.

The plaintiff had verbal if not written notice.

Tlie defendant could- have made the affidavit at the moment of leaving the bank with his dishonored check, had he chosen to assume the burden of proving “the intent to defraud” at some other time and in another manner.

We are of opinion with the district judge, that' the plaintiff’s petition shows that defendant acted with probable cause and that therefore it discloses no cause of action against the defendant.


text:
    No. 10,734
    Orleans
    DAVIS Co., Appellant, v. CASSO
    (February 14, 1927. Opinion, and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — New Trial — Par. 26.
    An application for 'a new trial on tbe ground of newly discovered evidence is properly refused when the applicant could have obtained the evidence before the trial, had he used due diligence.
    2. Louisiana Digest — Sales—Par. 218.
    A' manufacturer of paint warrants that it is fit for painting.
    Appeal from First . City Court. Hon. W. V. Seeber, Judge.
    Action by H. B. Davis Company against Lawrence Casso.
    There was judgment for. plaintiff and defendant appealed. .
    Judgment affirmed.
    Feitel & Feitel, of New Orleans, attorneys for plaintiff, appellee.
    Chas. J. Conklin, Ernest J. Robin, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for $155.67 for the price of paint sold and delivered by the plaintiffs, who reside in Baltimore.

The defendant answered that the paint which plaintiffs sold him proved unsatisfactory and unusable in his business and caused him damage; that he had on hand twenty-one gallons of paint which he offered to return to the plaintiff; that he had to do the painting ovet again upon three jobs at an additional cost to him of $105.00, which he claimed in reconvention.

There was judgment__in,faygr_pf defendant dismissing plaintiff’s demand, and in favor of plaintiff dismissing the reconventional demand.

The plaintiff,. prayed for a new trial on the ground of newly discovered evidence. The new trial was refused, and the plaintiff has appealed. Defendant did not appeal.

The motion for a new trial was based upon the allegation that, since the trial of the case, plaintiff had occasion to speak to one Gus Pitard, who was the local agent of plaintiffs in New Orleans, and that Pitard “will testify that he sold the’ paint to Lawrence Casso, that he saw him several times after the paint had been sold; .that the defendant at no time complained to him of the quality of the paint; that the defendant did offer to return the paint to him, not on account of the quality of the paint, but on account of said defendant’s inability to meet his obligations. ■

The answer alleged that the paint was “unusable and unsatisfactory,” and the defendant, as a witness, testified -that he had purchased the paint from Gus Pitard as the local agent of plaintiff.

The Code of Practice authorizes the granting of a new trial for the purpose of introducing new evidence only when that evidence has been discovered since the judgment was rendere'd and which the party applying for the new trial did not know, “although he had used every effort and diligence in his power to procure the necessary testimony”. . C. P. 561; 5 La. Dig., p. 538, S. 26.

We think that the' plaintiff could have secured that 'testimony from Pitard before the trial. They were notified of the defense by the answer and Pitard was their agent. Succession of Coste, 43 La. Ann. 144, 9 South. 62; Baldwin vs. Bordelon, 49 La. Ann. 1090, 22 South. 196; Yarborough vs. Swift & Co., 119 La. 344, 44 South. 121; Doiron vs. Baker-Wakefield Cypress Co., 131 La. 618, 59 South. 1010.

The evidence satisfies us that the paint sold and delivered to the plaintiff was of an inferior quality and not fit for use, “that within a few months after it was applied it cracked and peeled off”. In the case of American Paint Works vs. Metairie, 1 La. App. 396, we said:

“A manufacturer of paint warrants that it is fit for the purposes for which it is sold.”

See also Mansell Hunt Catty Co. vs. Elmer Candy Co., No. 9507 Orleans Appeal.

The plaintiff offered no evidence of any kind.


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    No. 10,672
    Orleans
    RUSSO v. RUSSO
    (January 17, 1927. Opinion and Decree.)
    (January 31, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Bills and Notes— Par. 43, 214; Payment — Par. 19.
    The plea of payment is not inconsistent with the plea that the check was given for an illegal consideration, and where the evidence shows that the check was given in settlement of a bet on a horse race outside of an inclosed race track, the transaction is illegal, and suit to recover on the check will be dismissed, uhder Act 127 of 1920.
    Appeal from First City Court, Section “B”. Hon. Val Stentz, Judge.
    Action by Victor Russo against Anthony Russo.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellant.
    Frank S. Normann, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit by Victor Russo against his brother, Anthony Russo, for one hundred and forty-eight and 25-100 dollars ($148.25), the claim being based on check given by the defendant to Sidney Boudreaux for two hundred and fifteen dollars ($215.00), with notes on the check showing payments at different times amounting to sixty-six and 25-100 ($66.25) dollars.

The answer, while admitting the check, pleads payment and also illegal consideration.

The evidence shows that the two brothers were in the habit of making racing bets with Sidney Boudreaux, who was running a book outside of the race track, and that said bets were made through Victor Russo, as Boudreaux allowed him five per cent commission thereon.

Plaintiff swears that he paid the check to Boudreaux, because his brother did not have the money at the time the check was given, but defendant and his stenographer and Boudreaux himself, who held the check in his possession, and certainly should have first knowledge, swear that the amount was paid back to Victor Russo in installments.

Plaintiff, defendant and Boudreaux all testify check was given to. settle á bet on a horse race made with Boudreaux at his residence, where he operated a handbook.

Although the preponderance of evidence is • clearly in favor of payment, we prefer to base our decision on. the ground that the check was given to cover a bet on a horse race made outside the race track, and, therefore, prohibited by Act 127 of 1920.

Plaintiff’s attorney objected to all testimony tending to show that check was given to settle a bet on a horse race on the ground that plaintiff had pleaded inconsistently, but the lower court properly overruled this objection.

See Phillips et al. vs. W. T. Adams Mash Co., 52 La. Ann. 443, 27 South. 65.

See Bacher vs. Sheriff, 14 Orl. App. 367.

Sampson vs. Whitney, 27 La. Ann. 294.

State vs. Mustachia, 152 La. 821, 94 South. 408.

If, from plaintiff’s own statement, cause of action appears to arise from a transgression of a positive law of the state, the court will not lend aid. (Schmidt vs. Barker, 17 La. Ann. 261.)


text:
    No. 10.644
    Orleans
    PRINCE v. MRS. ST. AURIN, WIFE OF WILSON
    (January 17, 1927. Opinion and Decree.)

      {Syllabus by the Court)
    1. Louisiana Digest — Brokers—Par. 18,23.
    Where an owner arbitrarily refuses to execute an agreement to buy and sell real estate, he owes the real estate agent, employed by 'him to secure the pur- • chaser, his agreed commission, in the absence of proof that the buyer was irresponsible because unable or unwilling to • complete the sale.
    Appeal from First City Court, Section “C”. Hon. Wm. V. Seeber, Judge.
    Action by Meyer G. Prince, doing business under the name of Prince Realty Company, against Mrs. Louise St. Aurin, wife of H. Wilson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. Kohn, C. H. Willie, of New Orleans, attorneys for plaintiff, appellee.
    Anna C. McCay, of New Orleans, attorney for defendant, appellant.
   OPINION

WESTERFIELD, J.

This is a ¡¡suit by a real estate agent for a commission.

Plaintiff was given exclusive authority to sell defendant’s property, for a period of six months, and, if successful, was to receive a commission of $100.00. There is Also a claim for $25.00 for an abstract which plaintiff alleges he paid for account of the defendant. Defendant, in denying liability, avers that plaintiff did npt procure a bona fide purchaser, able and willing to take the property, and that, consequently, no commission is due.

Judgment was rendered in favor of plaintiff for $100.00 and defendant alone has appealed.

The position of defendant seems to be that plaintiff should show affirmatively the capacity an[d willingness of its buyer, notwithstanding the admitted refusal of defendant to execute the sale without stating any reason therefor. Of course, no com.mission is due, unless a buyer who will and can buy the property has been found by the agent for the very good reason that the object of employing and paying a real estate agent is to effect a sale, and not to obtain a signature to an agreement of sale of an individual without moral or financial responsibility. But where, as in this case, the agent obtains a signed offer to buy, which he presents! to the owner, who also signs an accepting offer, and thereafter declines, arbitrarily, to execute an act of sale, the burden of proving ,the irresponsible character of the buyer rests upon the defendant.

There is no proof, and no attempt to prove, that plaintiff’s buyer was not able and willing to buy defendant’s property.

The judgment appealed from is, for the reasons assigned, affirmed.


text:
    No. 10,129
    Orleans
    FISHER, Appellant, v. DUBROCA
    (March 29, 1926. Opinion and Decree.)
    (April 26, 1926. Rehearing Refused.)
    (March 2, 1927. Opinion and Decree of Supreme Court.)

      (Syllabus by the Court)

    1.Louisiana Digest — Office and Officer— Par. 50.
    The assessor’s salary fund of the Parish of St. Charles, composed of $2000.00 for his salary and an expense allowance of $2000.00, belongs to the assessor of the parish in the absence of any other claimant to it.
    2. Louisiana Digest — Office and Officer— Par. 50; Exemptions from Seizure— Par. 211.
    The provisions of Article 1992 of the Civil Code, and of Articles 644 and 647 of the Code of Practice, and of Act 79 of 1876, conflicting with, or contrary to, the provisions of Act 184 of 1918, p. 347, are repealed by said Act of 1918, and accordingly “money due for the salary of an officer” or “salaries of office” are liable to seizure.
    3. Louisiana ' Digest — Laws—Par. 2; Courts — Par. 1.
    The public policy of this state is dictated primarily by the legislature and not by the judiciary.
    Appeal from Twenty-eighth Judicial District Court, Parish of St. Charles. Hon. L. Robert Rivarde, Judge.
    Action by Judes G. Fisher against Ralph A. Dubroca.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Andrew H. Thalheim, of New Orleans, attorney for plaintiff, appellant.
    Robt. J. Perkins, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This case involves the application 'of Act 184 of 1918, p. 347, being an act defining exemptions from seizure.

The defendant is the “assessor of the parish of St. Charles”.

On October 23, 1924, the plaintiff obtained a judgment against him for $600.00 and interest.

Upon this judgment the plaintiff issued execution and garnisheed the treasurer of the police jury of the parish of St. Charles, who was served December 31, 1924.

The treasurer answered on January 9, 1925, that he had in his hands and under his control as parish treasurer of the police jury of the parish of St. Charles the sum of $333.33 due Ralph Dubroca as salary due him as assessor of the parish of St. Charles, out of the assessor’s salary fund for the month of Decemebr, 1924.

On February 23, 1925 the treasurer filed another answer to another garnishment, “that he has in his hands and under his control as parish treasurer of the police jury of the parish of St. Charles the sum of $333.33 due Ralph Dubroca or his office as assessor, $166.66 of which is for salary as assessor, and $166.66 is expenses due for the running of his office as assessor of the parish of St. Charles out of the assessor’s salary fund for the month of January 1925”.

On February 26, 1925, the plaintiff obtained an ex parte order commanding the police jury to deliver the above sums to the sheriff to be applied to the satisfaption of his writ of fieri facias.

In obedience to this order the police jury turned over its check for $666.66 to the sheriff, who held it subject to the further order of the court.

On ‘April 14, 1925, the defendant, Dubroca, filed a motion against the sheriff to show cause why the money paid to him by the police jury should not be refunded to the police jury on the following grounds:

1st. That the answers of the parish treasurer “were erroneous and that answers to said interrogations should have stated that any amount held by the police jury was, due to the fund established by law, known as the Assessor’s Salary Fund, and that no funds were held by the parish for defendant herein”.

2nd. That defendant is a state officer, that he is assessor of the parish of St. Charles, and that his salary is exempt from seizure under an express law.

3rd. That it is against public policy to allow the salary of a state or parish officer to be seized, thereby impairing the efficiency of the duties to be performed.

On May 29, 1925, judgment was rendered “for the reason that the court finds that the defendant, Ralph A. Dubroca, is a public officer. It is ordered that this rule be made absolute that the garnishment herein issued be set aside”; the court further ordered that the sheriff refund the money received by him from the parish treasurer to be placed into the assessor’s salary fund of the parish.

From this judgment the sheriff and the plaintiff, Jules G. Fisher, have appealed.

There is in the record no testimony nor note of evidence.

We shall take up in their order the three grounds for releasing the garnishment.

1st. The treasurer of the police jury has answered under oath to the garnishment first issued as follows:

“That the .defendant, Ralph A. Dubroca, is the assessor of the parish of St. Charles, and as such is entitled to receive a salary of $2000.00 per anuum and an expense allowance of $2000 per annum; that said sums are paid out of the assessor’s salary fund, which is formed by the payment of assessor’s commission received from the various taxing bodies levying taxes in the parish of St. Charles; that the police jury of the parish of St. ■ Charles advances each month to the defendant one-twelfth of said salary and expenses.”

T'o the two garnishments next issued the treasurer has answered, admitting owing the defendant the two months of December, 1924, and January,. 1925, amounting to $666.66.

There is nothing to contradict this answer.

If defendant says that the parish owes him nothing, then he has no interest to complain that it should admit owing him, and consent to pay a judgment against him. If any part of the $4000.00 appropriated to the assessor’s “expenses” belongs to anyone else, then the defendant has no right to champion vicariously the other’s interest. At any rate, no evidence has been offered to show that the “Expense” belongs to anyone else or that anyone else is interested in it.

2nd. In the case of Heyman vs. Creeheron, No. 8374 of this court, C. B. 59, after an exhaustive review of the law and authorities, we said:

“The provisions of Article 1992 of the Civil Code and of Articles: 644 and 647 of the Code of Practice and of Act 79 of 1876, exempting from seizure ‘money due for the salary of an officer’ or ‘salaries of office’ are repealed by Act 184 of 1918, p. 347, and such money or salaries are under said statute liable to seizure.”

Act 184 of 1918 is a textual reproduction “ipsissimis verbis” of Act 79 of 1876, leaving out only the words, “Nor money due for the salary of an officer”. This is a clear indication that it was the evident and only intention of the legislature to exclude “the salary of an officer” from the list of exemptions heretofore existing.

Á reconsideration of the opinion does not lead us to believe that we erred.

3rd. The public policy of this state upon that question has been settled by the legislature of this state by Act of 1918, over which we have no supervisory control. •

The judgment of the District Court, rendered May 29, 1925, is erroneous, and it is accordingly reversed and set aside; and It is now ordered that the order of the District Court rendered February 26, 1925, commanding the police jury of the parish of St. Charles, through William Lussan, parish treasurer, to deliver the sum of $666.66 to the sheriff of the parish of St. 'Charles to be applied to the satisfaction of the writs of fieri facias issued herein and in the hands of said sheriff be reinstated, the costs of these proceedings and of this appeal to be paid by the defendant herein.