author: JANVIER, J.

text:
    No. 10,700
    Orleans
    LIND v. SENTON ET AL.
    (February 25, 1929. Opinion and Decree.)
    Hopkins and Talbot, of New Orleans, attorneys for plaintiff, appellee.
    Fred G. Veith, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Plaintiff leased certain premises to “Metalizing Works, Inc.”

The act of incorporation of Metalizing Works, Inc., was executed before a notary public, but no other steps were taken to complete the incorporation,

The three signers of this act of incorporation, M. S. Sentón, Charles F. Helmecke and Frederick G. Veith, to some extent carried on the business which they had intended should be done by the corporation, which died “aborning.”

In doing so they made themselves liable as partners:

Provident Bank & Trust Co. vs. Saxon, 116 La. 408, 40 So. 778;

Louisiana National Bank vs. Henderson, 116 La. 413, 40 So. 779;

Campbell vs. J. I. Campbell Co., 117 La. 402, 41 So. 696;

Burdick on “Partnership,” page 45.

Sentón and Veith claim that they did not know that Helmecke was carrying on the business. We find it unnecessary to discuss the question of whether or not knowledge that business is being conducted is, as a general rule, necessary to hold incorporators, or, rather, intended incorporators, liable as partners, for the record convinces us that Sentón should have known from his association with the others and from his visits to the premises that business was being conducted and he, therefore, can be said to have had constructive knowledge, and we are well satisfied that Veith had actual and full knowledge. Veith’s memory seems to be unusually poor in this regard and we feel certain that he knew all,, or practically all that was being done in the name of the concern.

Defendants contend that, even if they are liable as partners, they should not be held solidarily, because such business as was done would not classify the partnership as a commercial one. The act of incorporation which was signed by the three defendants contained article 3, which set forth the objects and purposes for which the corporation “Metalizing Works,, Inc.” was to be formed. These objects and purposes, if carried out by a partnership, were such as, under Revised Civil Code, article 2825, would have constituted the partnership a commercial one. Plaintiff contracted with these defendants who were acting under the name “Metalizing Works, Inc.” The charter or act of incorporation of Metalizing Works, Inc., set forth the kind of business to be done and plaintiff should not be required to go be- • yond this to determine whether or not the partnership to which he leased his premises was a commercial one.

At the termination of the lease much movable property belonging to plaintiff had been either destroyed or removed by the tenants, and, in addition to the amount claimed as rent and as liquidated damages, plaintiff asks that he be awarded the value of these articles. The judge, a quo, heard all of the evidence with reference to these articles and seems to have fixed their value at $348.50. We have gone carefully over all of the evidence with regard to these items of movable property and are of the opinion that the trial court’s finding in regard thereto is correct.

The claim for rent and liquidated damages is made up as follows: Two months’ rent at $60.00 per month and liquidated damages at $5.00 per day from January 1, 1926, to and including May 31, 1926.

The lease provided that at the end of any six-months period the lessee should have the right to terminate the lease upon giving notice, and that, in' the event they gave such notice, but did not vacate, they should pay as liquidated damages $5.00 for each day the premises were retained. Notice was given, but the premises were not vacated and, in fact, were retained from January 1st to and including May 31st.

We do not believe that it was the intention of the parties that if the premises were retained for what amounted to practically a full new term that the stipulation with reference to liquidated damages should apply.

Inasmuch as the lessees had the right to renew the lease for another period, in which event they would have been called on to pay only at the rate of $60.00 per month, as provided for in the case of a renewal, it would seem inequitable to require them to pay on the much higher basis just because they gave a notice which, as a matter of fact, neither they nor the plaintiff acted upon. Plaintiff was not harmed by the notice and, as the premises were not vacated, it seems proper to hold that both parties, in effect, waived any rights which might have accrued under it. However, this view of the matter carries with it the conviction that, in spite of the notice to the contrary, the action of defendants in remaining in the premises constituted a renewal for another term of six months. They should, therefore, be required to pay on the monthly basis for the full six-month period instead of for only five months, as held by the judge a quo.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, and that there now be judgment in favor of plaintiff, William Lind, and against defendants, Moritz S. Sentón, Charles F. Helmecke and Frederick G. Yeith, jointly, severally and in solido, for the full sum of eight hundred and eighty and 50-100 dollars ($880.50), with legal interest on $60.00 thereof from November 1, 1925, until paid; like interest on like amount from December 1, 1925, until paid; like interest on like amount from January 1, 1926, until paid; like interest on like amount from February 1, 1926, until paid; like interest on like amount from March 1, 1926, until paid; like interest on like amount from April 1, 1926, until paid; like interest on like amount from May 1, 1926, until paid; like interest on like amount from June 1, 1926, until paid; like interest on like amount from July 1, 1926, until paid; and on $348.50 from judicial demand. All at the cost of appellant.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,532
    Orleans
    LEON GODCHAUX CLOTHING CO. v. DE BUYS
    (February 11, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)

      Deutsch and Kerrigan, and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Delvaille H. Theard, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This i's an attachment suit brought on January 5, 1928, against defendant, alleged to be a resident of. the city of Los Angeles, for the sum of $169.68, the unpaid purchase price of two dresses sold and delivered by plaintiff to defendant. The itemized account attached to plaintiff’s petition and made a part thereof reads as follows:

May 2/,27 1 Dress _............. 99.50

1 Dress ______________________69.50

Postage & Ins.............68 169.68

A curator ad hoc was appointed to represent the absent defendant and a writ pf attachment issued and interrogatories were duly served on Stafford, Derbes & Roy, Inc., a local real estate firm. It answered that it did not know the defendant, but that it had sold on the 15th day of January, 1926, to defendant, 104 lots of ground in the Parish of Jefferson for the sum of $8,112 and had received a cash payment of $1,100 with mortgage notes for the balance. Defendant had, since that time, made an additional payment of $1,500, leaving a balance due of $5,181, with interest.

The curator ad hoc filed an answer on January 14th,. denying the allegations on information and belief.

On March 1, 1928, the defendant filed exceptions to the citation and to the attachment, which exceptions were overruled, and later, on April 4, 1928, defendant answered denying the allegations of plaintiff’s petition specifically.

There was judgment for plaintiff as prayed, recognizing plaintiff’s lien, and ordering that the property held by the garnishee be sold and petitioner’s' claim be paid by preference out of the proceeds.

Defendant has appealed to this Court.

The evidence shows that on May 2,1927, defendant, after trying on several dresses at plaintiff’s store without satisfaction, ordered the two dresses the price of which is herein claimed, to be sent down from New York City. Though defendant was told at the time that it would take two or three weeks to make delivery of the dresses, she insisted on ordering them. Accordingly the order was at once telegraphed by plaintiff to the manufacturing firm with which it did business in New York, and shortly thereafter the order was confirmed by letter. In about three weeks the dresses were received by plaintiff in this city, and an unsuccessful attempt was made to deliver them at the residence which defendant had given in this city. On the next day the woman who had sold the dresses telephoned defendant’s alleged residence and was 'told that defendant had left for Los Angeles. Thereupon plaintiff secured defendant’s address in Los Angeles and sent the dresses to her in that city by parcel (post C.O.D. They were refused and were returned to New Orleans. After an exchange of letters between plaintiff and defendant, plaintiff sent the dresses parcel post C.O.D. again to defendant in Los Angeles, but they were again refused. After another unsuccessful attempt had been made to deliver them in this city, this suit was filed.

Plaintiff’s manager testifies that the dresses conformed in all respects to the order.

In this court defendant argues vehemently that plaintiff has not followed the right procedure. The dresses, she contends, should have been sold and defendant should then have been sued for the loss occasioned by her breach of the contract. In support of this contention he cites articles ft. C. C. 1934 and 2555, H. T. Cottam & Co. vs. Moises, 149 La. 305, 88 So. 916, and many other decisions of the appellate courts of this state.

It is thus seen that defendant contends that the sole remedy of a seller, where the buyer refuses to take delivery of movable goods, is a suit for damages after selling the goods. Such a contention is not sustained by the authorities. The case most relied on by defendant is that of' H. T. Cottam & Co. vs. Moises, supra, where merchandise had been sold by the grocery firm of Cottam Company to purchasers in South America, in which the Supreme court held that the seller may sell the goods at auction or at private sale, and then 'sue for the balance. All the other decisions are in cases where sales had been made and damages sued for, but not one of them sustains his contention that the sole remedy is a suit for damages after sale of the article. Such is not the law of Louisiana.

If the vendee refuses to accept delivery, the vendor becomes the “negotiorum gestor” of the vendee and must administer the thing sold like a good administrator. If the thing sold is of a perishable nature, he must sell it within a reasonable time and credit the vendee with the proceeds of sale and sue for the balance of the price. But if the thing sold is not perishable, he may pursue.one of two courses in order to minimize the loss on both sides; either sell it or hold it, and take reasonable care of it. Gilly et al. vs. Henry, 8 Mart. (O. S.) 416, 13 Am. Dec. 291; White vs. Kearney, 9 Rob. 495; Id., 2 La. Ann. 639; Benton vs. Bidault, 6 La. Ann. 30; Judd Oil Co. vs. Kennedy, 14 La. Ann. 352; Pothier’s “Contract of Sale,” Section 280. But the course above indicated fixes the amount of the vendor’s claim only when he chooses to sue for damages. He may elect between one of these actions. When the vendee .fails to accept delivery of the thing sold, the vendor, according to Louisiana law, may sue him for the price (R. C. C. 2549), or for the rescission of the sale (R. C. C. 2581), or for damages (R. C. C. 2555).

R. C. C. 1799. It is a presumption of law that in every contract each party has agreed-to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied.

R. C. C. 1926. On the breach of any obligation to do or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, ,or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.

R. C. C. 1927. In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.

R. C. C. 2046. A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution, with damages, or, if the circumstances of the case permit, demand a specific performance.

R. C. C. 2549. The obligations of the buyer are: 1. To pay the price of sale. 2'. To receive delivery of the thing and to remove it. If it be an object which requires removal, and to indemnify the seller for what he has expended in preserving it for him.

R. C. C. 2551. On failure of the buyer to pay the price, the seller may compel him to do it, by offering to deliver the thing to him, if that has not been already done.

It is only where the thing sold is perishable . that the law makes it the duty of the vendor to sell the thing, on the principle that the creditor must use every means to minimize his own loss and that of the debtor. In every other case, where the thing is not perishable, the right is optional with the creditor. In the present case the burden was on the defendant to prove that a sale for a reasonable price could have been effected by the plaintiff at private or at public sale, and within a reasonable time. The defense has offered no evidence on that point, and the presumption is it could not be done, since defendant’s dresses had to be sent from New York.

The articles of our Code are taken almost literally from the Code Napoleon. The authors say that the duty of the vendor to sell or sue for specific performance is optional with vendor.

See Vol. XVII, G. Baudry-Lacantinerie et L. Saignat, pp. 525 and 526:

“Then if the buyer neglects to take delivery of the thing within the delay fixed, the sale is dissolved of right and without demand for the benefit of the vendor. The latter may, therefore, without recourse to the courts, and without putting the buyer in default, consider the sale as not having taken place, and dispose of the thing, while preserving the right to demand, damages according to Article 1184 (R. C. C. 2046, 2047). But this is for him simply an option (a faculty), the sale is dissolved of right and to the advantage of the vendor, says Article 1657: the latter may, therefore, if he prefers it, require, by the rules of law, the execution of the contact which is perhaps advantageous to him.”

Such was the interpretation given to R. C. C. Art. 2551 by this Court on rehearing in the case of L’Hote vs. Dugue, 2 Orleans App., 808, where the plaintiff obtained judgment against the defendant for the price of lumber, delivery of which the defendant refused to accept, or to pay for.

The last expression of the Supreme Court on this point is found in the very-recent case of Mutual Rice Company of La. vs. Star Bottling Works, 163 La. 159, 111 So. 661. In the last paragraph of its decision, the Court uses the following words:

“It is argued on behalf of appellant that, according to articles 2551, 2556 and 2462 of the Civil Code, when a buyer breaches the contract of sale, the seller has the option either to resell the property and bring an action in damages for the difference between the contract price and the price actually received, or to demand specific performance by tendering the property at the stipulated time and place of delivery and suing for the contract price. The right to demand specific performance in such cases is not appropriate to a sale of merchantable goods, like sugar, which is quoted every day on the commercial exchanges throughout the world because in such case it is the duty of the seller to lighten his loss or avoid it altogether if possible—by selling the goods 'on the open market as soon as practicable after the contract has been breached.”

The Court here distinctly recognizes that the seller has the option either to re-sell the property and bring as action in damages for loss, or to demand specific performance. In this case the plaintiff has exercised the option of suing for specific performance after it had taken every possible step to comply with its contract, and defendant had prevented it from doing so.

For above reasons the judgment appealed from is affirmed.


text:
    No. 11,747
    Orleans
    McCLENDON, JR., v. CHRYSSOVERGES ET AL.
    (February 25, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)

      W. H. McClendon, Jr., of New Orleans, attorney for plaintiff, appellant.
    John F. Fisher, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is an attorney and brings this suit for his fee earned, and costs expended in representing defendants in the Supreme Court of Louisiana, in the matter entitled Chryssoverges et al. vs. General Cigar Company, Inc., 163 La. 365, 111 So. 787.

In that case the Chryssoverges Brothers had in the District Court been represented by Guy J. Ray, who died after the trial and before the hearing of the appeal in the Supreme Court.

Plaintiff claims $650 as fee and $12.50 as the cost of printing a brief which he paid for.

Defendants admit the employment of plaintiff and admit that he briefed, argued and won the case in the Supreme Court, but contend that it had been agreed that he was to receive $25 to cover his fee and costs.

They explain that although this would ordinarily seem a very small fee, plaintiff was a young man, out of law school only a few years and was anxious to appear before the Supreme Court, and that furthermore the appeal had not been seriously taken but was merely perfunctory, and that, therefore, plaintiff’s labors were neither arduous nor essential to the success of their case.

Plaintiff, in this case, had, during the trial of the other case in the District Court voluntarily assisted Mr. Ray to some extent and had become familiar with the case, and, on the death of Mr. Ray had called on the Chryssoverges brothers at their place of business, a hat cleaning and shoe shining establishment.

He states that this visit was made for the purpose of ascertaining whether or not they desired him to brief and argue the case in the Supreme Court. He further states that no mention was made of the amount of the fee to be charged either on that or any other visit, and that, if the words $25 were mentioned at all, they were used merely to express his estimate of what would be the extreme cost of printing the brief.

Defendants are corroborated to some' extent in their contention by the statement of a young woman employee, who claimed to have heard the conversation. One of the defendants speaks poor English but claims that he also heard the conversation between McClendon and his brother and that $25 was agreed upon as the total amount for fees and brief.

The defense made by the Chryssoverges brothers here, is in the nature of a special defense, and therefore, the burden of proving it by a preponderance of evidence is on them. In view of the fact that the brief actually cost $12.50, which McClendon paid, and in view of the fact that briefs in matters of the kind involved in this case might have cost considerably more. It is very hard for us to believe that McClendon would have undertaken the work on a basis which might have netted him nothing at all, and in view of the fact that there was probably considerable noise in the establishment of Chryssoverges at the time McClendon was employed we are of the opinion that all that the evidence proves conclusively is that McClendon was employed to go ahead with the case and that the minds of the parties at no time met on any contract as to the actual amount of the fee and costs. It may well be that the Chryssoverges brothers were of the opinion that a fee had been agreed upon, but we are quite certain that McClendon was of the other opinion.

In view of the fact, therefore, that the evidence does not preponderate in favor of the special defense made by the Chryssoverges brothers we are of the opinion that McClendon should be allowed to recover such sum as seems reasonable under all the circumstances.

On the question of what Is a reasonable fee, we are much impressed with the significant fact that Mr. Ray, the first attorney in the case, had agreed to handle the whole matter in the trial court and in the Supreme Court for $100, and had been paid this amount. Mr. McClendon had voluntarily assisted Mr. Ray and therefore, knew or ought to have known of the agreement which Ray had made.

Considering also the further fact that the case was won in the ■ lower court, we believe that a fee of $50 would be reasonable compensation. In addition to this fee, of course, he should be paid the amount expended by him for the benefit of his clients.

It is therefore ordered adjudged and decreed that the judgment appealed from be amended by increasing the amount thereof to $62.50, and as thus amended, affirmed. All costs to be paid by defendants.


text:
    No. 11,139
    Orleans
    GRENNON v. N. O. PUB. SERVICE, INC.
    (March 4, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)

      Milner and Porteous, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge and B. W. Kernan, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a most unusual case. Plaintiff’s left foot was cut off by a street car of defendant company on the night of December 15, 1925, but neither plaintiff, nor any of defendant’s witnesses, nor, in fact, anyone else knows anything about how the accident happened.

After the accident plaintiff was found in a dazed condition with his foot crushed practically to a pulp, not on the uptown track on which the accident must have taken place, but on the downtown track. He was found not by the crew of the car that injured him, but by the crew of another car, the motorman of which saw him in a semi-reclining position ahead of his car.

How he got on the track, and how the accident happened will probably never be known.

Plaintiff’s counsel attacks defendant as a “soulless corporation” and denounces what is termed as defendant’s change of front between the first and second trials. This case was tried twice before a jury and is now before us on appeal from a verdict and judgment for $13,500 rendered in favor of plaintiff by the second jury.

We can readily understand the position in which defendant found itself when called on to defend a suit growing out of an accident about which it had no information whatever.

It knew that a man had been hurt—in all probability by one of its cars—but that was the full extent of its knowledge. It did its full duty when, in its first answer it admitted that a man who gave his name as Grennon had been found injured near its tracks. More it could not admit because more it did not know. At the first trial much information came to light, and in view of this new information defendant was justified in filing an amended answer, and in admitting in that answer what it then knew but had previously been ignorant of, and in suggesting that even under the facts then in its possession no legal liability existed. Our many years of personal acquaintance with the late Mr. B. W. Kernan, who was then counsel for defendant, and our extremely high opinion of him as a lawyer and as a man, convinces us beyond the shadow of a doubt that the position taken by him on behalf of defendant was entirely and in all respects legal, ethical and justified by the circumstances.

Plaintiff claims that he was not in the least under the influence of liquor when, at about midnight, he arrived at the corner of Claiborne Avenue and Josephine Street for the purpose of boarding an uptown bound street car of the Claiborne line of defendant.

On account of the close proximity of the track to the Claiborne Canal and because there was no level ground on which prospective passengers could stand between the track and the canal, defendant had erected a small, narrow platform overhanging the edge of the canal and protected, on all sides, except that facing the tracks, by a wooden rail. This platform was 59 feet 8 inches in length and 6 feet 4 inches in width from the nearest street car rail to the rear edge. It was level with the rails. Prom the outside edge of an open street car door to the rear edge of this platform there was a distance of 3 feet 11 inches.

Plaintiff claims that after waiting a few moments on this platform he signalled an approaching car, but that it did not stop for him, and that just after its front end had passed him, one of the doors opened and hit him and that this knocked him under the car, with the disastrous result set forth.

If we felt that the facts were as plaintiff sets them forth, we would be bound to dismiss this suit on account of his own contributory negligence, because the evidence shows that the door extends beyond the side of the car only 10 inches, and fdr a prospective passenger to stand that near to a car is negligence. In Murphy vs. N. O. Public Service, Inc., 7 La. App. 612, plaintiff claimed:

“that the car had nearly passed her when the rear doors were suddenly thrown open without any notice to plaintiff.”

There was some dispute as to whether the plaintiff in that case was struck by the ' door or by some other part of the car, but the court holding that in either event, the cause was the negligence of plaintiff in standing too close to the car, and that, therefore, the defendant was not liable, said:

“On the other hand seven witnesses testify that it was the front part of the car that struck the plaintiff, but it is immaterial, under the circumstances of this case, what part of the car struck her. It has been the jurisprudence of this State since Lesseps v. Pontchartrain R. R. Co., 17 La. 361 (1841), reported in Hennen Digest, 1054, that ‘a party can recover no damages for an injury to which he has himself contributed. Volenti non fit injuria,’ unless the defendant by due diligence could have avoided the accident.”

Plaintiff’s story does not impress us. If he was in the full possession of his fac-. ulties, his recollection of the details of his accident would be much clearer than it seems to be. His recital of his story is so parrot-like and is couched in such technical language as to leave us convinced that his testimony is the result rather of an accurate memorizing of the allegations of his petition, than of a clear recollection of the actual events. Then, too, the circumstances leading up to the unfortunate accident, the facts that plaintiff had spent several hours in a so-called soft drink establishment, that he had been paid off that day, that he had won a small amount on the races, convince us that plaintiff had imbibed freely of intoxicants and was, a.t the time of the catastrophe, oblivious of his surroundings and no longer had it within his power to exercise discretion. In this respect the testimony of several of the witnesses is corroborative, and the hospital report is quite significant. This report describes plaintiff as being “in an alcoholic state.”

Objection was raised to the admissibility of this report in evidence, because there was some question as to whether the doctor who testified verbally was the one who made the report. Whether it was properly admitted or not is immaterial, as, even without the illumination cast by it, we would be of the opinion that plaintiff was to say the least “in an alcoholic condition.”

In fact, it is this alcoholic condition which, in our judgment, entitles plaintiff to recover. If he had been in the possession of his faculties, he was manifestly guilty of contributory negligence in being hit by the car at all. If he was sober, as he says he was, and was hit by the open door of the car, his case is on all fours with the Murphy case and it should be dismissed.

If, prior to the accident, plaintiff had not been seen by any of defendant’s employees in a position of danger, and in a condition and attitude indicating helplessness, or if we could feel that his position was such that there was no duty in any of those employees to have seen him, then we would be forced to hold defendant free from fault..

However, acording to Smith, one of defendant’s conductors, and according to Pfefferle, a witness for defendant—and in passing we will remark that we find some remarkable inconsistencies in Pfefferle’s testimony—plaintiff was seen fifteen minutes or so before the accident on this platform, within four or five feet of the rails, in an intoxicated condition and slouched down into a crouching position. The drunker he was, the more dangerous his position, and the greater the duty on defendant’s employees to remove him to a ' place of safety. There he was, penned in by the rails of the 'platform in a helpless condition. Smith and Pfefferle remarked on his condition and then proceeded on their way, leaving him to his fate. A very interesting case; to our minds, very much in point here, is Kramer vs. N. O., City Lake & R. R. Co., 51 La. Ann. 1690, 26 So. 411. In the Kramer case plaintiff, while drunk, fell alongside the rails of the defendant company. He was partially hidden by grass, but:

“he was seen by the motorman of a passing car a short time before the accident, ‘asleep 4 feet from the track facing towards the Bayou St. John, his legs toward the track.’ ”

The crew of the car which saw Kramer did not stop, realizing that they were only three blocks from the barn, at which their run terminated, but, immediately on arriving at the barn, notified the foreman, who sent back to have the apparently helpless person removed before injury could befall him, but in the few intervening moments another car had passed and Kramer, having thrown one of his legs over the rail, was hurt.

It was argued that the defendant, on discovering the dangerous position of Kramer, should have done more, but the court held that the defendant company had complied with its duty in sending back within so short a time to investigate the situation and to remove Kramer from danger. On the question of the duty imposed upon the defendant company under these circumstances, the court in the Kramer case said:

“It is charged that defendant is liable, because when the foreman was apprised by the motorman of the car that passed the plaintiff, that he was lying asleep in dangerous proximity to the track, it is claimed the foreman did not take the precautions required to secure the plaintiff from danger. Passing over the question as to the duty or character of the diligence imposed on defendant by the communication of plaintiff's danger to their foreman, we can find no basis for the conclusion that the foreman did less than humanity suggested, or was required of him, by any test we can apply. His testimony is, that he at once instructed one of the conductors within his call, to proceed, but before the mission could be executed, the accident occurred. It is true the conductor to whom it is claimed the order was given, testifies he was sent on some other business. Assuming he was the same conductor to whom the foreman spoke, we have against any force of the conductor’s testimony, that of the foreman, confirmed by that of the conductor who communicated the plaintiff’s danger, that the communication was at once acted on by the foreman, and that the conductor charged to remove plaintiff from the position of danger at once, proceeded on his mission, but before he got a few feet away, the alarm came that the plaintiff had been run over, verified as soon as the foreman and conductor, with others, reached the scene of the accident. With the closest scrutiny and consideration of the testimony on this part of the case, we can perceive no basis to charge the company with liability for the injuries to which the plaintiff exposed himself.”

While the defendant in the Kramer case was held not liable, an application of the reasoning of that case makes it imperative, to our mind, in the instant case to hold that that defendant here did not discharge its full duty after discovering the dangerous position of plaintiff. In the instant case the plaintiff was on the platform erected for passengers by defendant. He could have been there for no other reason than to board a car. He could not get off the platform except by boarding a car or by crossing defendant’s track. Furthermore, in the Kramer case the plaintiff was lying between two streets and the operators of the car passed and discovered 'him while they were in motion, and at the same time realized that the barn was only three squares away, whereas in the instant case the car had stopped alongside of plaintiff and the crew not only did nothing at the time, hut did not report it to anyone else, as the crew in the Kramer case did.

However great may have been the negligence of Grennon in getting drunk and in going into a place which, in his condition, was dangerous, this negligence, as soon as he lost possession of his faculties, became passive 'and no longer functioned as the proximate cause of the subsequent accident, which proximate cause we believe was the negligence of Smith, the conductor who failed to take precautions for plaintiff’s safety. After Grennon, due to his condition, no longer had it within his power to guard himself against danger, Smith, by the exercise of ordinary care and common humanity, could have saved him. In Blackburn vs. Louisiana Ry. & Nav. Co., 144 La. 520, 80 So. 708, the coui’t said:

“As indicated heretofore, the active phases of his gross negligence were spent, and he was in such a position of apparent helplessness as to have been seen and his condition appreciated, had the proper precautions been observed.”

It will be remembered that in the instant case, not only was Grennon seen, but his condition was appreciated.

For these reasons we are of the opinion that the proximate cause of Grennon’s unfortunate accident was the negligence of the defendant company.

We feel, however, that the award of the jury and the judgment based thereon is not in line with the amounts sanctioned by the jurisprudence of this State. We have carefully gone over various cases involving similar injuries and believe that fu.ll justice will be done by allowing plaintiff the sum of $7,500.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof to $7,500, and as thus amended, affirmed, the costs of appeal to he paid by appellee.


author: JCNES, J.

text:
    No. 10,933
    Orleans
    BORNE v. ROBERT P. HYAMS COAL CO., LTD.
    (April 15, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)
    Sidney P. Gautier, of New Orleans, attorney for plaintiff, appellant.
    Bond, Curtis, Hall and Poster, of New Orleans, attorneys for defendant, appellee.
   JCNES, J.

This is a suit for $380 damages for slander of title.

Plaintiff avers that he purchased from Fidelity Homestead Association on January 24, 1924, a certain lot of ground in this city, entirely clear of all liens against vendor, as shown by mortgage certificate attached to act of purchase; long after said purchase defendant, without any notice whatever, illegally caused, on July 3, 1925, the filing of an affidavit of a claim for $660.08, for material furnished to a party unknown to plaintiff, in the Mortgage Office of this city, thereby creating a cloud on plaintiff’s title; 'that during May petitioner agreed to sell the lot, but sale was prevented by this alleged lien, and upon defendant’s refusal to cancel, plaintiff filed mandamus proceedings to cancel on August 2, 1926, which were made peremptory on August 6th; that by reason of defendant’s illegal act in recording the claim and his failure to cancel, plaintiff was damaged as follows:

Interest which plaintiff had to pay to Homestead during 3 months, until Aug. 13, 1926, at .078 per cent on

the sum of $6,500 ________________________________$130

Attorney’s fee for filing mandamus,

and costs of court ________________________________ 100

Loss of time, mental worry and interference with business ________________________ 150

$380

To this petition defendant filed an exception of no cause of action, which was maintained by the trial court, and plaintiff has appealed.

The above analysis shows that plaintiff nowhere alleges that defendant’s affidavit was filed without probable cause or with malice. He simply avers that affidavit was illegally filed, which is a mere conclusion of law and not a sufficient averment to set forth a cause of action. State of La. vs. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772.

In the case of New Orleans Land Co. vs. Slattery, 145 La. 256, 82 So. 215, the Supreme Court held:

“An action for damages for slander of title, like a suit for damages for malicious prosecution, cannot be maintained if the act complained of was done without malice and was founded upon probable cause or was prompted by a reasonable belief in a just cause of action.”

This holding was a confirmation of the well-reasoned decision in the old case of Walden vs. Peters, 2 Rob. 331, 38 Am. Rep. 213, which was followed in Henry vs. Dufilho, 14 La. 48; Williams vs. Close, 12 La. Ann. 873; Clarkson vs. Vincent & Co., 32 La. Ann. 614, and Lange vs. Baranco, 32 La. Ann. 700.

The rule is the same in common law States. See 37 C. J., p. 131, Sec. 598 (subhead “Slander of Title”): '

“Malice is a necessary ingredient to entitle plaintiff to recover. Indeed it is said that malice is the gist of the action. The action cannot be maintained if the claim was asserted by defendant in good faith, and if the act complained of was founded upon probable cause or was prompted by a reasonable belief, although the statement may have been false.”

Furthermore, the damages charged are .patently irrecoverable.

The first item of $130 interest is charged for delay in bringing the mandamus suit, but there is no allegation that defendant caused this delay.

As- attorney fees must be allowed by statute, and as no reference is made to any statute permitting such recovery in cases of this kind, there is no cause of action for this item.

The third and last item of damage is evidently a general or omnibus charge without legal merit.

In view of the above conclusions, the petition would not be susceptible of amendment, even if permission to file a supplemental petition had been timely sought.

For above reasons the judgment is affirmed.


text:
    No. 10,848
    Orleans
    ZAERINGER REALTY CO., INC., v. NEW ORLEANS HOPS, MALT & EXTRACT CO., INC.
    (March 18, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    Legier, McEnerny and Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    Edgar M. Cahn, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant leased from plaintiff, the premises 714 Perdido Street, commencing November 15, 1924, and terminating September 30, 1925.

On its termination, the .lease was extended in writing for one year, from October 1, 1925, to and including September 30, 1926. Rent notes for $140 per month were executed by defendant.

On March 23, 192’6, by agreement, the lease was cancelled as of that date, but at that' time there was unpaid rent amounting to $540. It is for this sum and also for $199.63 damages, that plaintiff sues.

Defendant, or its sub-lessee, without authority, made certain structural changes in the premises leased and after the termination of the lease, plaintiff was required to spend $199.63 to put the property back into the condition in which it was before the changes were made.

Defendant refuses to pay and bases its refusal on two contentions:

1st. That with the knowledge and consent of plaintiff the building had been sub-let to one John Papalknomo, better known as “John the Greek,” and that this sub-lessee was accepted by plaintiff as lessee with the understanding that defendant was released.

2nd. That due to the vibrations and noise resulting during the construction of the Masonic Temple, across the street, the leased premises were made uninhabitable, and that the only changes made in the building were made for the purpose of preventing its collapse and were absolutely essential to the safety of the property and its use for the purpose intended and were made necessary by the construction work referred to.

As to the contention that the sub-lessee had been accepted as tenant, we find the proof entirely against defendant. Defendant claims that it itself had occupied the premises for only about two weeks, and that it had • sub-let it to another concern for a short time, and then to one “John the Greek,” and that after the first two weeks, during all the balance of the lease the rent had been paid by the sub-tenant.

We find nothing in the record to show any agreement by the plaintiff to the release of the defendant. On the contrary, when the first term expired, although at that time, according to defendant, there was a sub-lessee in the premises, defendant itself executed the new lease and new rent notes.

That the plaintiff accepted rent from the sub-lessee seems to us to have no bearing because the evidence shows that the rent notes were deposited in a bank for collection and that defendant, at no time, had knowledge as to who was paying the rent.

It would take very strong proof to sustain a defense of this character. Art. 2190, 2192 and 2194 of the Civil Code are clear and unambiguous. They read as follows:

Art. 2190. “NOT PRESUMED. Novation can be made only by persons capable of contracting; it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.”
Art. 2192. “Id. EXPRESS DISCHARGE OF FORMER DEBTOR. The delegation, by which the debtor gives to the creditor another debtor who obliges himself towards such creditor, does not operate a novation, unless, the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.”
Art. 2194. “INDICATION OF NEW DEBTOR OR CREDITOR. The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation. p The same is to be observed in the mere indication by the creditor ol a person who is to receive for him.”

In fact, we find that under the jurisprudence of this State, no novation takes place unless the specific consent to the novation itself is proven.

“The assumption of a debt by a new firm succeeding to the business of one that has been dissolved, the transfer of 'the debts to the books of the new firm and the assent of the creditor to the arrangement will not novate the debt, without an express agreement to discharge the original debtors.”

Carriere vs. Labiche et al., 14 La. Ann. 211, 74 Am. Dec. 428.

The second contention appears to us to be inconsistent with the first, and we do not believe that under the answer filed, the evidence should have been admitted in support thereof. However, we have gone carefully over the record and feel, as the trial judge did, that the evidence entirely fails to substantiate the contention of the defendant.

As to the interest allowed, the lease itself provides for the maturing of all the notes on the default o'f any one, therefore, interest on all, is due from the date of maturity of the first unpaid note.

As to attorney’s fees, this item is also provided for by the lease.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed. Costs to be paid by appellant.


text:
    No. 11,642
    Orleans
    SUCCESSION OF GEORGE MORRIS
    (April 1, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)
    Charles J. Mundy, of New Orleans, attorney for Luella Morris Brandon.
    Theodore Cotonio, of New Orleans, attorney for John Segretto.
    Arthur Landry, of New Orleans, attorney for John J. O’Neil, Clerk of Court.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys, for Metropolitan Life Insurance Company.
   JANVIER, J.

At the time of the death of decedent, George Morris, there were in the possession of John Segretto, three policies of insurance on the life of George Morris.

These policies had been issued by the Metropolitan Life Insurance Company, and were for the aggregate principal sum of $965 and were payable to the executor or administrator of decedent’s estate.

Segretto brought an independent suit directly against the insurance company, claiming to be the pledgee of the policies. The succession proceedings of George Morris were duly filed and the suit of Segretto, to which we have referred, was consolidated with the succession proceedings. In that suit, the Court held that Segretto could not maintain his action directly against the company. See Sue-cession of George Morris, No. 10897 of the docket of this Court, 7 La. App. 645.

The Supreme Court refused to grant a writ of certiorari, stating the action of this Court was correct.

The insurance company was brought into the succession proceedings, and, after various technical skirmishes between the two claimants to the fund, to-wit: John Segretto, to whom we have referred, and Luella Morris Brandon, claiming to be the child and heir of decedent, the company deposited the proceeds of the policies in the registry of the Court, and in doing so attempted to implead the claimants, so that they might fight out between themselves the question of the right to the fund. Segretto resisted the effort to implead him, and, on account of the fact that certain of the pleadings were not served on Segretto, his exceptions to the petition of interpleader were maintained. He, thereupon, intervened in the succession proceedings and opposed the claim of Luella Morris Brandon to the proceeds of the policies, on the ground that she is not a legitimate child of decedent, and on the further ground that Segretto is a creditor of the estate of Morris and that the policies were given him to secure this indebtedness, and that, he, Segretto, had, out of his own funds, paid certain of the premiums on the policies.

As we • construe his intervention, he claims to be a creditor of the estate, and, that even if it be conceded that Luella Morris Brandon is the heir, she, by accepting the succession makes herself liable for the debts, and, in fact, cannot take possession of the assets until the debts are paid.

It seems, then, that while he reiterated his first contention, to the effect that he is the pledgee of the policies, he really bases his intervention on his claim that he is a general creditor of the estate. On this intervention an order was entered requiring the Clerk of the Court to hold, until further orders, the funds deposited with him.

To this intervention, exceptions were filed by Luella Morris Brandon, in which it was contended that even if Segretto is, as he claims, a creditor of the estate of Morris, his debts cannot be paid out of the proceeds of life insurance policies, because of Act 189 of 1914 of Louisiana, in which it is provided:

“The proceeds or avails of all life, including fraternal and co-operative, health and accident insurance shall be exempt from all liability for any debt, except for a debt secured by a pledge of such policies, or any rights under such policies, that may have been assigned, or any advance payments made on or against such policies.”

Exceptor also contends that the former decision of this Court, to which we have referred, constitutes res adjudicata, and as an additional ground of exception, pleads the prescription of one year and the prescription of three years.

The record does not show, except by inference, what ruling was made on these exceptions, but we notice that a few days after the exceptions were filed, intervener, Segretto, presented for filing, a supplemental petition of intervention, and on this supplemental petition is the following order, written and signed by the trial judge:

“The permission to file is denied for the reason that the delay granted to file had elapsed when this order was presented to me.”

It seems, then, that the exception referred to, was sustained but that intervener was given the right to supplement and amend within a certain time.

After the dismissal of Segretto’s intervention, because of his failure to amend within the time allowed, judgment was rendered, ordering the clerk of the court to turn over to Luella Morris Brandon the funds on deposit.

From this order Segretto appeals.

The sole question before us is whether or not the trial judge was correct in his dismissal of the intervention of Segretto.

The exceptions which were sustained were based directly on the plea of res adjudicata and on Act 189 of 1914, to which we have referred.

The plea of res adjudicata, we believe, is not well founded, because the decree of this Court, which exceptor claims constitutes res adjudicata, shows plainly that the question of the right of Segretto as a general creditor of the estate was, in no way, considered or passed on. All that was before the Court was whether or not Segretto had any right directly against the insurance company.

Exceptor’s contention that Act 189 of 1914 deprives Segretto of the right of action in this' matter seems to be an insurmountable obstacle in the path of Segretto. He argues that the statute to which we have referred has been declared by the Supreme Court of the United States to be unconstitutional. Bank of Minden et al. vs. Clement, administratrix, 256 U. S. 126, 41 S. Ct. 408, 65 L. Ed. 857.

It is quite true that in that case the Supreme Court held that the statute in question was invalid if applied to the facts of that particular case. But the reason given was that the debt sought to be collected out of the proceeds of the policy antedated the statute and that Court held that, since at the time the debt was contracted, the creditor had the right to look to future acquisitions of the debt- or, and, that among those possible future acquisitions was life insurance. So that when the debt already exists, no State statute can impair the obligation already in existence.

The Court said:

“So far as the statute of 1914 undertook to exempt the policies and their proceeds from antecedent debts it came into conflict with the Federal Constitution.”

No such reasoning applies to a debt created after the enactment of the statute in question. At the time of its creation, the creditor is presumed to know that the proceeds of life insurance policies, such as are contemplated by the statute, cannot be applied to the payment of the debts. He becomes creditor with at least constructive knowledge of the law, and since, at the time he entered into the contract, he had no rights against such policies, it in no way impairs the obligation of his contract.

It appears, then, that even as a general creditor of the estate of decedent, intervener has no rights against the proceeds of the life insurance.

Intervener argues that the action of the trial court in refusing to allow him to amend his petition of intervention was improper. W'e find it unnecessary to discuss this contention because no amendment could have eliminated the fatal fact that the statute of 1914 is applicable to the proceeds of the policies involved here.

Nor is it necessary, in view of our decision on the application of the statute, for us to determine whether the various pleas of prescription are well founded.

The insurance company was merely the stake holder, and had no interest in the matter, and it earnestly urges us to render judgment to the effect that it has complied with its full duty and responsibility and relieving it from further liability. We are well convinced that the company had done everything which any claimant could require of it. All persons claiming an interest in the fund are actually before the Court, and it is conceded by all that the full amount due under the policies has been deposited in the registry of the Court.

It is therefore ■ ordered, adjudged and decreed that there be judgment in favor of the Metropolitan Life Insurance Company, relieving and releasing it from all further liability and responsibility in the matter, and it is further ordered, adjudged and decreed, that the judgment appealed from be and it is affirmed at the cost of intervener.


text:
    No. 10,725
    Orleans
    WATERALL v. W. I. SWAIN SHOW CO., INC., ET AL.
    (May 18, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)

      Buck, Walshe and Buck, and Walter M. Barnett, Jr., of New Orleans, attorneys for plaintiff, appellee.
    W. O. Kart, of New Orleans, attorney for J. H. LaBesque, defendant, appellant.
   JONES, J.

Plaintiff, an itinerant actor, temporarily in this city, sued defendant on March 7, 1925, for two trunks valued at $1,000. The trunks were sequestered upon plaintiff’s furnishing bond in the sum of $1,500.

On the 18th day of March defendant answered, denying the allegations of plaintiff, and, as plaintiff in reconvention, averred that plaintiff was indebted to it in the sum of $129.86 for money advanced and that it had a lien on the trunks to secure this indebtedness.

On the same day, under order of court, a release bond for $500 was furnished by plaintiff to sheriff, and the trunks were delivered to plaintiff.

On March 5, 1928, judgment was rendered in favor of defendant, plaintiff in reconvention, in the amount claimed, $129.86, with interest and costs, and with recognition of lien on the property sequestered.

On May 7, 1926, a writ of fieri facias was issued and on May 13 said writ was returned by the sheriff endorsed “nulla bona.”

On June 4 a motion was filed by defendant, plaintiff in reconvention, setting forth above facts and averring that sheriff had never properly transferred the bond, and asking that the present sheriff and his predecessor in office, LaBesque, show cause why they should not turn over to plaintiff in reconvention the property sequestered, or the security represented by the release bond in the sum of $129.86.

LaBesque excepted to the rule on the ground thap the proceeding had been improperly brought, as he was no longer in office and that, if defendant had any claim against him, it must be brought by direct action; then, in the event this exception was overruled, he further excepted on the ground that the motion showed no cause of action against him; in the event that both objections were overruled, he filed a general denial.

On the trial of the rule, it was shown that the surety on release bond was also an itinerant actor who had been here only temporarily, and the judge made the rule absolute ' against both defendants, Hartson and LaBesque, directing them to turn over the trunks to plaintiff, and, in the event of their failure to do so, he gave judgment in favor of plaintiff in rule against LaBesque in the full sum of $129.83, with legal interest from March 17, 1925, until paid.

From this judgment LaBesque has appealed suspensively to this court, and he has filed here a plea of prescription of one year.

The record contains the release bond, which shows the following indorsement, made on June 26, 1926:

“TRANSFER
“STATE OF LOUISIANA, “OFFICE CIVIL SHERIFF, “PARISH OF ORLEANS.
“New Orleans, June 26, 1926.
“I do hereby transfer, assign and set over to Defendant herein, all my right, title and interest in and to the within bond.
“(Signed) J. H. LaBesque, “Late Civil Sheriff for the Parish of Orleans.”

It is thus seen that this transfer was made three and one-half months after judgment was obtained.

Under Articles Nos. 225, 227, 229 and 279 of the Code of Practice, and under Civil Code, Article No. 3042, the sheriff may-release property sequestered by plaintiff upon his furnishing a forthcoming bond with a surety possessing property sufficient to cover the obligation, whose domicile must be in the jurisdiction of the court.

Under Act 6 of 1894 the sheriff had the right, before accepting the surety, to have his solvency and his qualifications passed upon by the court and thus relieve himself of responsibility.

Under Section 2 of Act 109 of 1880, it was the duty of the sheriff, upon his depositing the forthcoming bond in the clerk’s office, to give notice in writing to the parties in the proceedings or their attorneys, so that either party might test the sufficiency of the surety within twenty days from date.

Upon the trial of the rule the burden was on the sheriff to show that he had complied with the law and given the proper notice. Instead of bearing the burden he proved that he had violated the law by taking as surety on a forthcoming bond an itinerant actor who was not domiciled in the parish.

As no notice was given by sheriff of the deposit of the bond, and as the bond was not assigned until the rule had been taken against him, after fi. fa. was returned “nulla bona,” the sheriff made himself liable for the property released. See Articles 279 and 280, Code of Practice.

The sheriff, by failing to give notice and assign the bond, omitted to perform an obligation imposed on him by law. Such an obligation is not prescribed by one year, but two years. See:

Board School Directors, Union Parish v. Trimble, 32 La. Ann. 793;

Howell vs. Cronan, 31 La. Ann. 247;

Crane vs. Lewis, 4 La. Ann. 320.

La. Digest, Yol. YI, p. 718:

“The prescription in favor of sheriffs against their acts of misfeasance, nonfeasance, etc., * * * is two years from the day of the omission or commission complained of.—Rev. Statutes, Sec. 3546; Mulhollan vs. Henderson, 3 Rob. 297; Kohler vs. Walden, 23 La. Ann. 299, 300; Hugh vs. Hernandez, 25 La. Ann. 360; Succ. of McCloskey, 32 La. Ann. 146.”

Section 3580, Revised Statutes, quoted by appellant, applies to inden^nifying bonds given by third parties to the sheriff, where their property is illegally seized. It has no application to forthcoming bonds.

The only proof of value of the trunks is the affidavit of plaintiff that they were worth $1,000, but there is no countervailing proof, and as the act of the sheriff in surrendering the trunks without notice to plaintiff’s attorney rendered further proof impossible at the time, the record justifies the conclusion that their value was sufficient to sustain the judgment herein.

For above reasons the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,731
    Orleans
    TRANCHINA v. WILLIAMS
    (March 8, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Dart and Dart, Louis C. Guidry, of New Orleans, attorneys for plaintiff, appellant.
    I. F. Williams, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that he purchased from his brother, John Tranchina, sometimes known as John E. Tranchina, by act of sale before Henry P. Dart, Jr., Notary Public, September 6, 1923, certain real estate, situated in the city of New Orleans;

That prior to the passage of the act of sale and in compliance with Article 3364 R. C. C., the said Henry P. Dart, Jr., applied for a research certificate from the defendant, recorder of mortgages, in the name of John Tranchina;

That on September 6, 1923, the day of the sale, a preliminary certificate was obtained indicating that there was no encumbrances against the property which he had intended to purchase, and, that thereafter, on September 7, 1923, the day after his purchase, a mortgage certificate, duly signed and dated was had, which also purported to certify that the property which petitioner had purchased was free of all liens and mortgages;

That it subsequently developed that the property purchased by petitioner was subject to a conventional mortgage, recorded in the name of John E. Tranchina, at the time petitioner purchased same, believing it to be unencumbered, and that in order to protect petitioner’s ownership, he was obliged to pay the said mortgage, with interest and costs, amounting in all to the sum of $681.92, for which sum he asks judgment against the recorder and his surety.

That John Tranchina and John E. Tran-china are one and the same person and a careful examination of the records of defendant’s office would have revealed the inscription of the mortgage in the name of John E. Tranchina, which should have been reported, notwithstanding the fact that the name mentioned in the application for the certificate omitted the middle initial “E,” being in the name of John Tranchina;

That plaintiff’s loss was, consequently, due to defendant’s negligence.

It will be noted that at the time plaintiff purchased the property, September 6, 1923, no certificate had issued in proper form from the office of the recorder of mortgages. The “preliminary research” referred to, the evidence shows, was in no sense, a certificate, since it was neither dated nor signed. It is true that the certificate when properly issued and signed by the defendant, recorder, contained no reference to any conventional mortgage in the name of John E. Tranchina, but, it will be remembered that the certificate was called for the ■ name of John Tran-china, and it was in the name of John Tranchina, that the recorder issued a clear certificate. He is said to have been negligent in failing to report the mortgage inscribed in the name of John E. Tranchina.

Admitting arguendo that defendant 'was negligent in this regard, it is clear that plaintiff’s loss cannot be attributed to defendant, because at the time his certificate was issued, the plaintiff had already purchased the property and parted with the purchase price, and was, therefore, not injured by the negligence of the defend-’ ant. To hold otherwise would be to extend the responsibility of the recorder of mortgages beyond all reasonable limits. The mere fact that a paper coming from a clerk in his employ, without any date or signature, fails to reveal the liens recorded against the property described therein, is not sufficient evidence of official error to charge the recorder and his surety with responsibility for loss sustained by reliance thereon, and certainly cannot be regarded as a certificate from the recorder of mortgages within the intent of Article 3364, R. C. C.

In the case of Eureka Homestead vs. Dunn, Recorder of Mortgages, reported in 14 Orl. App. page 248, where this same question was considered, the court held:

“The question arises, whether the Recorder is liable for damages resulting from an omission in an unfinished certificate upon the faith of which a party has acted. We think not; a certificate is manifestly incomplete as long as it is neither dated or signed. It shows on its face that the officer issuing it has not yet finally acted upon it, and until he has so acted upon it he has always the right to revise and recheck it to make certain that it is correct. And the best proof that such certificates are not considered final is that the parties themselves eventually insist upon having them dated and signed. Hence, those who act upon a certificate thus incomplete do so at their own risk and peril. For they have not acted upon the faith of any official act, since an act unfinished is an act undone.”

There was judgment below in favor of defendant, dismissing plaintiff’s suit.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,606
    Orleans
    JOFFRION-WOODS, INC., v. ST. JAMES BANK & TRUST CO.
    (April 1, 1929. Opinion, and Decree.)
    (April 29, 1929. Rehearing Refused.)
    Chas. T. Wortham and Martin, Woods and Woods, of New Orleans, attorneys for plaintiff, appellee.
    P. M. Lambremont, Guión and Upton, of New Orleans, attorneys for defendant, appellant. .
   WESTERFIELD, J.

This is an appeal from a judgment for plaintiff, rendered on a rule taken for a judgment upon the face of the petition and answer.

The petition alleges that plaintiff deposited a check drawn to its order by L. B. Babin, of Whitecastle, Louisiana, in the sum of $1,740.32, upon the Bank of White-castle, with- the defendant, the St. James Bank & Trust Company, and that the amount of said check was immediately credited to plaintiff’s account in the defendant bank; that defendant endorsed the cheek and forwarded it to the Hibernia Bank & Trust Company of New Orleans for collection; that the Hibernia Bank & Trust Company endorsed it in blank and forwarded it to the Bank of Whitecastle for collection and payment; that the Bank of Whitecastle charged Babin’s account with the check, marked it paid, and returned it to Babin and forwarded to the Hibernia Bank & Trust Company its draft on the Hibernia Bank & Trust Company for the amount of the check; that about two days after the draft was sent to the Hibernia Bank, the Bank of Whitecastle was ordered closed by the order of the State Bank Examiner, and the Hibernia Bank thereupon refused to honor the draft on itself and charged back the amount to the St. James Bank, which, in turn, charged it back to plaintiff.

The defense as set up in the answer admitted that the check was deposited with defendant and credited to plaintiff’s account, but without guarantee of collection; in other words “as a deposit for collection.” As .set forth in Paragraph 8 of the answer:

“Further answering the allegations of said' petition respondent avers that said check of Seventeen hundred and forty and 32/100 ($1740.32) Dollars, was received by it for deposit on the 26th day of January, 1927, and on the same day was credited to-the account of plaintiff as a deposit for collection and that, after indorsing the same in blank, it immediately forwarded the same to the Hibernia Bank & Trust Co. of New Orleans, La., its correspondent and collecting Bank, for collection on the 26th day of January, 1927; that said Hibernia Bank & Trust Co. after receiving the same and indorsing the same in blank, immediately forwarded the same to said Bank of White Castle, White Castle, La., for collection and credit and said Bank of White Castle, thereafter forwarded to said Hibernia Bank • & Trust Co., in payment, thereof, its draft on said Hibernia Bank & Trust Co., but that said Hibernia Bank & Trust Co. was unable to effect collection of said draft because said Bank of White Castle failed and closed its doors for business before the same could be collected; that said Hibernia Bank & Trust Co., therefore, having charged respondent’s account with the amount of said check, resppndent in turn, debited the amount to the account of said plaintiffs.”

It is the contention of plaintiff that the act of the defendant bank in placing the check to the credit of plaintiff was the acceptance of a deposit, involving the bank with responsibility for the amount of the credit, without regard to the collection of the check; that there is a distinction between a check received for deposit and one received for collection, the check in this instance, it is insisted, being one received for deposit. We are referred to Douglas vs. Federal Reserve Bank, 271 U. S. 493, 46 S. Ct. 554, 70 L. Ed. 1053; Bank of Popular Bluff vs. Millspaugh, 313 Mo. 412, 281 S. W. 733, 47 A. L. R. 754, 756; Cleve vs. Craven Chemical Co., (C. C. A.) 18 F. (2d) 711, 52 A. L. R. 980; Berg vs. Federal Reserve Bank of Minneapolis, 55 N. D. 406, 213 N. W. 963, 52 A. L. R. 988.

Defendant, on the other hand, contends that the check was received by it “as a deposit for collection,” as is customary, the understanding being that, if the defendant does not realize from the deposit the amount credited to plaintiff, a corresponding debit shall be charged to plaintiff’s account. Our attention is directed to Act 85 of 1916, which reads:

“That any Banking Association, Savings Bank or Trust Company, receiving for collection or deposit any check, note, draft, or other similar instrument, may send such item for collection directly to the Bank on which it is drawn, or at which it is made payable, and the failure of the Bank, either because of its insolvency or otherwise, to which such item is sent for collection, to account for the proceeds thereof, shall not render the forwarding Bank liable therefor.”

and to Act 86 of 1926, reading:

“That no State or National Bank, located in this State, which shall receive for collection or deposit negotiable or non-negotiable paper or securities, payable elsewhere than at the place of its domicile and by it forwarded for collection shall ever be liable for any loss resulting from the fault or negligence of any Bank, State or National, or other person, acting in a fiduciary capacity, through whose hands such paper or securities may pass while in transit.”

It is argued that neither of these acts applies to the present situation, because, in the case of the Act of 1916, it is necessary that the check be forwarded directly for collection to the bank on which it is drawn, which was not done in this case, and with reference to the Act of 1926, it' is necessary, in order for this act to have application, that the loss should result “from the fault or negligence” of a bank. It is said that in this case there was no negligence, no tort, and therefore this latter statute has no application.

This view would limit the scope of the statute to cases in which collection had failed, because of some negligence on the part of an employee of a bank in whose hands the check might be during the process leading to finale liquidation. We do not agree with this narrow construction and are of opinion that Act 86 of 1926 is pertinent, whatever may be said of Act 85 of 1916. The financial failure of the bank in this instance, it seems to us, may be regarded as a fault within the meaning of the statute which would relieve the initial bank from responsibility. At any rate, we are unable to agree with our learned brother below in his holding, that the case should be dismissed on the face of the pleadings, as we believe the answer sets up a serious defense, which, upon the trial of the case, may be fortified, or weakened, by introduction of evidence.

For the reasons assigned the judgment appealed from is reversed and it is how ordered that this case be remanded to the Twenty-third Judicial District Court for the Parish of St. James for further proceedings according to law, and consistent with the views herein expressed.


author: LECHE, J.

text:
    Nos. 413, 414, 415
    First Circuit
    KENTWOOD BANK v. CAPLES KENTWOOD BANK v. WALLER KENTWOOD BANK v. RICKS
    (March 6, 1929. Opinion and Decree.)
    Purser and Magruder, of Amite, attorneys for plaintiff, appellee.
    Ellis, Ellis and Ellis, of Amite, attorneys for defendants, appellants.
   LECHE, J.

The plaintiff, as its name indicates, is engaged in the banking business at Kentwood in the northern part of the Parish of Tangipahoa. It holds and owns a note amounting to $5,000, made and subscribed by the Louisiana-Mississippi Cooperative Creamery Company, in representation of a loan made to the company for that amount. It also holds as collateral security to guarantee the payment of said note of $5,000, one lot of several individual notes made and subscribed by stockholders and directors of the creamery company in various sums, three of said notes being made and subscribed by the defendants in the present consolidated cases. The defenses in the three cases being similar, the cases were consolidated for trial and argument.

The District Court rendered judgment in each case in favor of the plaintiff, and defendants have each appealed.

At the time the plaintiff, the Kentwood Bank, made the loan to the creamery company, Richard A. Kemp was president of the Kentwood Bank and was also a director in the creamery company. It seems that the notes held by the bank as collateral security were made and subscribed by stockholders and officers of the creamery company, with the view of guaranteeing tlie loan which the bank was making to the creamery company in order to enable the creamery company to carry on its business. The proceeds of the loan were used by the creamery company for its own benefit and indirectly for the benefit of its stockholders who were the real parties in interest.

The defense as contained in the answer, is as follows:

Defendants admit making and signing the notes but allege that said notes have been paid in the following manner, to-wit:

That before making the notes declared upon, by agreement between the Kent-wood Bank, represented by R. A. Kent and E. P. Miller, president of the Louisiana-Mississippi Cooperative Creamery Company and their agents, and your defendants, said creamery company was to deduct two per cent out of the price of every gallon of milk shipped to it by defendants as well as two per cent from the price of every gallon of milk shipped to it by other persons, and ipay same to Kentwood Bank as collected until said note was paid in full. The defendants then charge that the two per cent on the price of the milk received by the creamery company was collected by it, and amounted to a sum. more than sufficient to pay the loan and the notes which they had signed as collateral security. They do not specially charge that the bank received the proceeds of the two per cent of the price per gallon, collected by the creamery company, but they charge that the creamery company in making such collection was acting as agent of the bank and that they, as makers of said notes, were thereby discharged from liability.

Defendants further charge that R. A. Kent was president of the Kentwood Bank at the time of making said notes and was a director or executive officer of the creamery company and through him said bank had full knowledge of all the facts set forth, and by reason thereof, said bank is guilty of laches and negligence towards defendants, and is now estopped from attempting to collect from defendants, a debt which they have already paid according to agreement.

It appears from this statement of the case that the defense of payment is a special one, excludes every other defense, and that the burden of proof rests entirely upon the defendants.

The testimony fails to disclose any express promise on the part of the Kent-wood Bank to carry out or to be bound by the alleged agreement to the effect that the bank would rely entirely and solely for the reimbursement of its loan to the creamery company upon the deduction fund of two per cent on the price of every gallon of milk, which was to be retained by the creamery company when it paid for the milk delivered to it by defendants and others. Nor is there any direct testimony to the effect that the bank had agreed to constitute the creamery company as its agent to collect from its stockholders, directors or others, the money due for its loan to the creamery company. These are mere deductions and conclusions which the defendants were, in good faith, led to believe probably by the managers of the creamery company and not by the authorized managers of the bank.

Even if it were conceded that R. A. Kent permitted or encouraged such a belief to be entertained by the defendants, his conduct and actions would not be binding upon the bank, for it was to the knowledge of the defendants that R. A. Kent’s interest as director and ■ stockholder of the creamery company was in direct conflict and antagonistic to the interest of the bank and its stockholders.

The rule that knowledge of an agent is knowledge of the principal has well defined limitations. Mr. Justice Provosty in the case of Langlois vs. Gragnon, 123 La. 453, 49 So. 18, 22 L.R.A. (N. S.) 414, summed up the jurisprudence on that subject, and said, that where from the circumstances of the particular business, the agent’s interest and that of his principal are necessarily in opposition, as in the present case, third persons are charged with notice of such want of authority.

It is unfortunate that at the time these cases were tried, R. A. Kent had departed this life, and his version of these transactions could not be obtained. But Walter K. Amacker, who was at the time cashier of the Kentwood Bank and who is now president of that bank, disclaims in most positive terms that the bank had ever agreed to bind itself by the agreement alleged in defendants’ answer. Ordinary reason appears to support him in his denial of any agreement on the part of the bank to look exclusively to the fund of two per cent collected by the creamery company from its furnishers of milk for the reimbursement of the loan, for if there had been such agreement the giving of the notes as collateral security would have been a senseless and a vain formality.

Defendants are the victims of their own failure to realize their responsibility when they signed and issued the notes sued on and we are powerless to relieve them.

The District Judge properly disposed of the cases and his judgment is affirmed.


text:
    No. 11,384
    Orleans
    PELLETIER v. SUTTER ET AL.
    (April 1, 1929. Opinion and Decree.)

      L. Walter Cockfield, of New Orleans, attorney for plaintiff, appellee.
    E. S. Lazarus, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant, Malcolm H. Sutter, leased from plaintiff an upper apartment. The lease was to terminate on September 30th, 1926, but on November 2nd, 1925, Sutter decided to move to Florida, and vacated the premises.

Plaintiff was in Europe at the time, and his father, noticing that the furniture was being moved out of the apartment, notified plaintiff’s attorney, who immediately called upon defendant either to desist from removing the furniture or to furnish security for the payment of the rent to become due for the remaining months of the lease. After some discussion, defendant, Malcolm Sutter, produced as surety, his father, Samuel Sutter, the other defendant, and, this being satisfactory to plaintiff’s attorney, the furniture remaining, was removed.

Finding conditions in Florida not what he anticipated, defendant decided to return to New Orleans, but, before he, himself, came back, his wife did so, reaching here during May, 1926.

Shortly after her return, probably during the early part of June, 1926, Mrs. Sutter, visited the apartment formerly occupied by her husband and herself and was much surprised to find that the electric meter, which her husband says had been ordered disconnected by him, was again connected, and that lights were burning, and that the woodwork and walls of the entire apartment had been painted and done over.

She, thereupon, wrote her husband, advising him of what she had discovered, and thereafter he refused to pay any more rent, contending that the landlord, plaintiff here, had cancelled the lease by entering. and taking possession of the premises.

Thereupon, plaintiff brought this suit for the collection of his rent for the five remaining months of the lease. He, of course, sued both his lessee and his lessee’s father, who had signed as surety to guarantee the payment of the rent. The notes state, on their face, that they are for the sum of Ninety dollars ($90.00) each, but each bears a credit endorsement of Fifteen dollars ($15.00), so that in truth, each is for the sum of only Seventy-five dollars ($75.00).

Defendants answered the suit by alleging that the lease had been terminated by the unlawful entry to which we have referred, and, that as a result, of such entry, the lessee had the alternative right either to concur in the cancellation, or to insist on retaining the premises and to sue the landlord for damages.

Defendant, lessee, sent back to plaintiff the keys to the apartment and notified him of his acquiescence in the cancellation.

We are of the opinion that when plaintiff admitted, as he did when placed on the witness stand hy defendants, that he had entered the premises, the burden was immediately placed upon him to justify his action.

C. C. 2692 provides that the lessor is obliged, among other things: “To cause the lessee to be in peaceable possession of the thing during the continuance of the lease.”

Under C. C. 2698: “The lessor has not the right to make any alteration in the thing, during the continuance of the lease.”

Plaintiff sought to justify his entry into the premises by attempting to show that the apartment was severely damaged by a violent rainstorm and that he had entered it and made repairs only because they had been made necessary as a result of this storm. The proof offered with regard to this alleged storm is not at all satisfactory, and such witnesses as testify, fail to fix with any degree of definiteness, the time at which it occurred. In fact, they give themselves a margin of several months in their approximation of the time it happened. Furthermore, their exaggerations of the result of this storm are quite patent and glaring.

Plaintiff admits that in addition to the repairs which he claims were made necessary by the storm he also did over the entire apartment. That he did this with the intention of benefiting Sutter is very doubtful, because, so far as he knew, Sutter had gone to Florida, never to return, and because it is most unusual for a landlord who already has a tenant, without even a request from the tenant, to paint and “do over” the premises.

It is quite certain then that the real purpose of the landlord, in doing what he did, was that he might have the work all completed, and the place in nice condition before the approaching rental season. This he had no right to do. Even though his then tenant was not actually occupying the apartment, it was his right to occupy it, or to close it up and leave it vacant, and no one on earth had the right to enter and take possession of it, for any purpose, except to make absolutely necessary repairs, and this right did not include the right to refurbish the place, even though refurbishing and doing over made of it a better place than it was before.

In Wood vs. Monteleone, 118 La. 1005, 43 So. 657, the Supreme Court discussed this very question. Mrs. Wood attempted to cancel the lease, because the landlord, Monteleone, had entered the place for the purpose of making repairs and alterations. Monteleone set up in defense the claim that Mrs. Wood would be benefited by the repairs, and that the property would be more desirable after their completion.

The Supreme Court said:

“Defendant is not the proper party to decide whether the alterations made by himself were beneficial to the plaintiff, or were deemed by her desirable. It is for the plaintiff herself to deal with that question. Even advantageous changes cannot be forced upon her without her consent.”

We are very loath to enforce the very harsh remedy which the law provides in such a situation as is presented here, because it is manifest that the tenant has suffered no harm whatever, and has not been actually interfered with in the possession of the premises leased. But, there is, in our opinion, no alternative, as there has certainly been a technical legal interference with the occupancy of the premises, and we see nothing to do but enforce the result to which, the tenant is entitled, and which the landlord, in his desire to get his property ready for the next season, has brought upon himself.

The trial judge rendered judgment for plaintiff, as prayed for. Feeling as we do, we must reverse that judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be, and it is annulled, avoided and reversed, and that there now be judgment in favor of defendant and against plaintiff, dismissing the suit and cancelling the lease, and ordering the return to Malcolm H. Sutter of the rent notes herein sued on.

All costs to be paid by plaintiff.


text:
    No. 11,436
    Orleans
    MUSIC BOX, INC., v. HENRY MILLS AND MILWAUKEE SOCIAL CLUB
    (March 18, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellee.
    John J. Wingrave, of New Orleans, attorney for Henry Mills, defendant, appellant.
   JANVIER, J.

The Music Box, Inc., a corporation, brings suit against Milwaukee Social Club, an alleged non-trading corporation, and also against Henry Mills, as surety, claiming rent due for the use of certain premises in this ■ city. Payment is resisted by the surety on the ground that the lessor and the lessee conspired together, or at least agreed, without the knowledge and consent of the surety, to violate the prohibition laws of the United States and that, as a result of this violation, the occupancy of the premises was terminated suddenly and effectively by the arrest and conviction of tile lessee, Milwaukee Social Club.

It will at once be wondered how it is possible to arrest a club. Defendant’s answer is that Milwaukee Social Club is merely a trade name for one Gober, who, masquerading behind this name, carried on the business of furnishing refreshments to the patrons of the Music Box, Inc., which occupied adjoining quarters.

We hardly think it lies in the mouth of Mills, who signed as surety for his principal, Milwaukee Social Club, to question the legal status of his principal. But, even if he be allowed the right to question such status, it seems to us that it is not the question of the existence “vel non” of the Milwaukee Social Club as a corporation which determines the validity of the defense set up by Mills. He contends that the conspiracy was entered by Music Box, Inc., through one Brennan, its managing head. In his answer, however, he admits that Music Box, Inc., is a legally incorporated concern and, having admitted this, he cannot now be heard to argue that Brennan, the managing head of the corporation, (if, in fact, he did enter into such conspiracy or agreement) was acting within the scope of his authority, because an officer of a corporation, no matter what his position, no matter what his authority, cannot, within the scope of his authority, agree to violate the laws of the State or of the United States. C. C. 443:

“A corporation- can not commit the crime of treason, or any other crime or offense, in its corporate capacity, although its members may be guilty of those crimes in their individual and respective capacities.”

If, acting within the scope of his authority and as the representative of the corporation, an officer could agree to violate the law, then that agreement would be an agreement of the corporation, and, since a corporation cannot commit a crime, it follows that it cannot conspire or agree to commit one.

. As a matter of fact, we find it very hard to believe that either of the corporations in question was legally organized, or that either has maintained its legal status as a corporation, but it does not appear to us proper to allow the collateral attack made by the surety in this case. In a case very much in point, involving the right of' a private citizen to collaterally attack the legal status of a Louisiana Corporation, the U. S. Circuit Court of Appeals for the Fifth Circuit said:

“We are of opinion that, under these statutory provisions, as construed by the Supreme Court of Louisiana, plaintiff was a defacto corporation, and that the legality of its existence as such cannot be questioned by private parties in a collateral proceeding, but could only be attacked by the state in direct proceedings to oust it from the exercise of its corporate powers.
Weil vs. Leopold, etc., Co., 126 La. 938, 53 So. 56; John Lucas & Co. vs. Bernhardt’s Estate, 156 La. 207, 100 So. 399; Leader Realty Co. vs. Lakeview Land Co., 127 La. 1059, 54 So. 350; Bond vs. Scott Lumber Co., 128 La. 818, 55 So. 468. The above cited cases from Louisiana are in accord with the general rule. Douglas County vs. Bolles, 94 U. S. 104, 24 La. Ed. 46; 7 R. C. L. 63, 65, 68; I Fletcher on Corporations, par. 273, 274.”

Dillard et al. vs. Hal Brown & Co., Inc., 22 Fed. 2d Series, 677.

The evidence leaves little doubt that in the premises occupied by both of the corporations, illegal acts were frequently committed, but there is certainly enough in the evidence to show that they were committed neither by the corporations themselves nor by any person acting for either corporation within the scope of his or her authority. Such illegal acts as were committed by tbe officers of the corporations were committed while such officers were acting in their private capacities and, therefore, can have no legal, binding effect upon the corporations themselves.

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