author: MOUTO'N, J., (Judge Elliott)

text:
    No. -
    First Circuit
    HATHAWAY v. WINN
    (January 28, 1926. Opinion and Decree.)
    (March 2, 1926, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest — Judgment—Par. 159.
    After a judgment dissolving a, writ of attachment becomes final the illegality of its issuance is res adjudicata.
    2. Louisiana Digest — Attachment — Par. 162.
    Attorney’s fees of $400.00 allowed as damages for the dissolution for a writ of attachment illegally issued.
    3. — Loujsiailai Digest — Attachment— Par. 159.
    Damages are recoverable for mortification, annoyance and vexation caused by the illegal issuance of a writ of attachment.
    4. Louisiana Digest — Attachment—Par. 162.
    Attorney’s fees are not allowed as damages for the dissolution of an illegal attachment if the attorney also tried the case on its merits before the judgment.
    Appeal from the Parish of Jefferson Davis. Hon Thomas F. Porter, Judge.
    Action by George Hathaway against Hizekia Winn, et al. ' ■
    There was judgment for plaintiff and defendant appealed. '
    Judgment amended and affirmed.
    McCoy & Moss, of Lake Charles, attorneys for plaintiff, appellee.
    . Modisette & Adams, of - Jennings,- attorneys for defendant, appellant.

      ELLIOTT, J., dissents written reasons attached.
   MOUTO'N, J.,

Hizekia Winn, defendant herein, instituted a suit i,n the Parish of Jefferson Davis against Mrs. Dorothy Strickland and George Hathaway, plaintiffs in this ease, as a surety. His demand against them was for $17,799.21. Upon the allegation that they were both nonresidents of this state, he obtained the attachment of their property.

Plaintiff and Mrs. Dorothy Strickland each filed a motion to dissolve the writ of attachment on various grounds. The ■district judge in his written reasons held that the suit of Hizekia Winn was essentially one for an accounting and that on such a demand the writ could not be maintained, and that a decree would be rendered in conformity with those views. Later the court rendered judgment dissolving the writ for the reasons that had been previously assigned in writing. Mrs. Dor- . othy Strickland ■ and plaintiff herein had also urged an exception of no cause of action, among the various pleas which they had set up for the dissolution of the attachment. This exception was not, however maintained, as the judgment merely dissolved the attachment and did not dismiss the suit of Hizekia Winn against plaintiff and Mrs. Strickland which was subsequently tried on the merits, the court rendering judgment therein for $2787.42 in favor of Winn, who later took a devolutive appeal from this judgment to the Supreme Court of this state. See Winn vs. Strickland, 155 La. 129, 98 South. 865.

The Supreme Court in Winn vs. Strickland, 155 La. 129, 98 South. 865, held that Winn had abandoned his appeal and dismissed it. The court grounded its opinion on a'certain receipt which Winn had given Mrs. Strickland when she paid the judgment. In that opinion the Supréme Court said that a supplemental brief by counsel for Winn contended that the receipt which the court had held embodied a renunciation of the appeal was not intended to be an abandonment of his right of appeal from the previous judgment dissolving the writ of attachment. The court found otherwise and held it was clear from the language used in the receipt that appellant had waived his right of appeal from any of the judgments rendered in that cause. Counsel for Winn in that case asked if the court concluded to dismiss the appeal, that it should issue writs of prohibition to the District Court prohibiting further proceedings in the damage suit which had been filed by plaintiff and Mrs. Strickland in damages for the dissolution of the attachment. The court refused to issue writs of prohibition stating that if plaintiff and Mrs. Strickland had abandoned their claim for damages this question could be passed upon by the lower court in the ordinary course of procedure. The Supreme Court then dismissed the appeal. This dismissal, as appears from the reasoning of the court above referred to, has reference not only to the merits of the case but also to any of the judgments which had been rendered therein, and this included the judgment dissolving the writ of attachment. The judgment dissolving the writ being now final, the illegality of its issuance is res adjudicata. Chaffe & Sons vs. Elliott, 37 La. Ann. 183; Diboll vs. Aetna Life Insurance Co., 32 La. Ann. 183; Yeager Milling Co. vs. Lawler, 39 La. Ann. 572, 2 South. 398; McDaniel & Co. vs. Gardner & Co., 34 La. Ann. 343; Wall vs. Hardwood Mfg. Co., 127 La. 968, 54 South. 300. In the present suit plaintiff claims damages against Hizekia Winn, and Thomas Winn;' surety on the attachment bond for $753.69, for attorney’s fees for procuring the dissolution of the attachment, traveling éxpehses of his attorneys’ for mental anguish, trouble and annoyance. The court rendered judgment in his favor against Hizekia Winn and Thomas Winn, hon.dsman, for $253.69 with legal interest from judicial demand.

Defendant appeals and plaintiff asks for an increase in the judgment.

Counsel for defendant contends that damages are not recoverable for the dissolution of an attachment when it has been issued on the sole ground that the debtor resides out of the state.

He refers to several decisions which hold that an attachment so issued is itself the principal demand, the foundation of the suit, and stands in lieu of a citation required in ordinary proceedings. This is unquestionably the rule of law in attachments of that character. He says that in such cases the attachment is not a conservatory measure, and serves only as the basis or foundation for the suit so as to invest the court with jurisdiction. He thus assimilates the process of attachment against an absentee to an ordinary citation and concludes that when such an attachment is dissolved the debtor who has been attached is not entitled to any damages. Under an attachment a debtor’s property is seized before judgment is obtained, and it is certainly a harsh remedy whether directed against an absentee or a citizen domiciled here on allegations of intended fraud or concealment of his property. In either case, a party who wields this powerful weapon against his adversary must, on the dissolution of the attachment, respond in damages for the unwarrahted use of the writ.

Counsel for defendant refers us to the case of Tallahatch.ee Lumber Company vs. Marshall Lumber Company, decided by this court. In that case an exception of no cause of action had been filed and was maintained by the district judge. We held that the exception by its very nature had admitted as true the facts upon which the-suit was based, and that necessarily- the merits of the case had been presented for decision. We held that the maintaining of the exception, and the dismissal of the suit, was equivalent to a trial on the merits. In the instant case, as we have before stated, the attachment was dissolved because the demand was for an accounting. This appears from the record and from the briefs filed by counsel for defendant and for plaintiff. In the present case the attachment was dissolved but the suit was not dismissed, otherwise it would not have been prosecuted to final judgment and to subsequent settlement by payment. The case of the Tallahatchee Lumber Company vs. Marshall Lumber Company has no application.

Plaintiff swore that his attorneys had charged him $500.00 to procure the dissolution of the attachment in the District Court. Prominent attorneys of the Lake Charles bar placed an estimate much higher than $500.00 as a fair value for the services of an attorney to obtain the dissolution of an attachment in a suit of this character. They gave cogent reasons in support of this estimate. The property of plaintiff was attached upon a large claim and remained -under seizure for several months. For the dissolution of the writ in the District Court the fee charged was not excessive, but we think that the sum of $400.00 would be a fair allowance. Attorney’s fees, costs and other expense are recoverable in such cases. Chaffe & Sons vs. Elliott, 37 La. Ann. 183; Barrimore vs. McFeely, 32 La. Ann. 1180; State vs. Police Jury, 34 La. Ann. 43; Adler vs. Adler, 137 La. 968, 69 South. 761.

Plaintiff'also claims damages in the sum of $250.00 for mental anguish, .trouble and annoyance caused by the attachment. For the worry, annoyance and mental anguish lie suffered as the result of the attachment he estimates the sum of $250.00 as a small compensation. In his answer defendant alleges that a claim for damages of that character is too remote and ethereal for a court to value or appraise. The Supreme Court took a different view of this proposition in 33 La. Ann. 6, where it held that actual damages were recoverable on the dissolution of the writ for mortification, annoyance and vexation caused by the attachment. See also Graham vs. Western Union Telegraph Co., 109 La. 1074, 34 South. 91; Deslonde vs. O’Hern, 39 La. Ann. 18, 1 South. 286; M. L. Byrne & Co. vs. Gardner, 33 La. Ann. 8. We think plaintiff is entitled to $100.00 for the trouble, mortification and mental anguish which he swore he had suffered as the result of the attachment.

Plaintiff also asks for $250.00 for attorney’s fees for professional services rendered by his attorneys in the Supreme Court. The suit was dismissed in that court on the ground that the receipt which had been given by Winn to Mrs. Strickland showed that the former had renounced or abandoned his right of appeal. The dismissal on the principal demand in that case carried with it a dismissal of the appeal on the judgment dissolving the attachment. The dismissal on the merits was more or less involved with the dismissal on the judgment dissolving the writ, and under such circumustances we will not allow attorney’s fees for the services of counsel in the Supreme Court.

Plaintiff is, however, entitled to an increase in the judgment in the amount above stated.

It is therefore ordered, adjudged and decreed that the judgment be amended by increasing the amount allowed below to the sum of five hundred ($500.00) dollars, and as. thus amended the judgment bp affirmed with cost.

REASONS FOR DISSENT

(Judge Elliott)

The plaintiff, Hathaway, a resident at this time of the Parish of Jefferson Davis, signed a judicial bond whereby he became bound to defendant, Winn, and then left the State of Louisiana and became a resident of the State of California and an absentee from the State of Louisiana, and leaving no agent or representative in the Parish of Jefferson Davis upon .Whom citation and service could be made. Defendant Winn had recourse upon said bond and it was necessary under our law for him to attach defendant’s property in the Parish of Jefferson Davis. The writ was properly issued under the law and was legally executed but the sheriff failed to post the writ as'provided by Code of Practice, Art. 254, and the seizure was dismissed on said account and for no reason or fault that could be imparted to Winn. In such a case under the law Winn is not liable in damages on account of the execution of the writ. Succession of Hasley, 27 La. Ann. 592; Hatcock vs. Gray, 22 La. Ann. 472; Succession of Coughlin, 35 La. Ann. 345.

All claim for damages on account of the execution of the writ should be refused.


source: Caselaw Access Project

author: MOUTON, J. ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit
    PAYNE v. SEIBERT
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 7 (a), 8.
    Where, ■ in an automobile accident, the proof fails to show that the driver of the 'automobile truck was at fault or negligent when he struck the child, there can be no recovery for damages under Article -2315 of the Civil Code.'
    Appeal from the Parish of Tangipahoa. Hon. Columbus • Reid, Judge.
    Action by Claude Payne against Charles Seibert. . ,
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Purser, & Magruder, of Amite, attorneys for plaintiff, appellant.
    W. W. Cornish, of Jennings, and A. S. Burns, of Ponchatoula, attorneys for defendant, appellee.
    ELLIOTT, J., dissents. Reasons attached.
   MOUTON, J.

Defendant, while driving a truck around the corner from Oak street into West Railroad avenue in the town of Amite struck Jesse Lee Payne, the minor child of plaintiff, then about seven years of age, causing serious injuries to the child, for which this suit is brought against defendant in the sum of $2264.00, $2000.00 for the benefit of the minor and $264.00 for expenses incurred in his behalf by plaintiff. The demand was rejected. Plaintiff appeals.

The proof shows plaintiff was walking with his boy, Jesse, and another of his boys, going from the railroad track westward towards Stern’s Department Store when the truck driven by defendant came around the corner and, as it approached Railroad avenue, struck the child about the middle of the street, inflicting the injuries of which plaintiff complains. Defendant was driving the truck which was loaded with a lot of wood upon which Powell, an employee, was sitting. Several-witnesses testified in. reference to the speed at which the truck was traveling at the time of the accident and as to whether defendant blew his horn when he turned the corner or prior thereto.

Three or four witnesses for plaintiff estimated the speed of the truck at the time at between fifteen and twenty miles an hour; one, however, fixed it at not more than fifteen. The witnesses for defendant estimated the speed from ten to twelve miles and not more than twelve. Some of the witnesses admitted they could not gauge the speed, but from their testimony the only inference to be deduced is that the truck was then moving at a low rate of speed. All of these witnesses were near the Stern’s corner or along the street and had about an equal opportunity in observing the rate of speed at which the truck was traveling. The defendant, who was driving, says he was going between seven and- twelve miles an hour. His employee, Powell, who was sitting on the top of the wood, says the truck was moving not much over twelve miles. It is possible that defendant, the driver, and Powell, who was sitting on the wood, were in a better position to-judge of the rate at which the truck was moving than were the bystanders on the street who had no interest whatsoever in the running of that truck. All of such testimony is, however, uncertain and cannot be taken as fixing with accuracy the rate of speed at which the truck might have been traveling. ' At best, only an approximate estimate may be accepted from evidence of that character, which in this case justifies the conclusion that the truck was not going over twelve miles, and most probably at a lessor speed, when the child was run over.

The evidence shows that after defendant applied the brakes his truck skidded about ten feet. This fact is shown by the imprint the wheels of the truck left on the roadway at the place where thé accident occurred. It seems to us that the character or weight of the vehicle would constitute an important factor, also the character of the roadway, in determining the speed of a motor vehicle by such imprints, if there be any possibility of rating the rapidity at which it might have been moving by the marks or imprints of the wheels. The only evidence we have on this subject is from the defendant, who says the truck ‘‘would have stopped a whole lot quicker without the load than with the load. The weight shoves it on”. This explanation appears reasonable to us as weight would very likely add> momentum to the movement of a truck and in the language of the defendant would “shove it on”. This testimony throws a little light on the subject but leaves us without any criterion by which we ■ could infer with any degree of certainty the rate at which a truck or auto would be traveling under such conditions. There is nothing in the record to assist us in fixing the speed at which the truck was then traveling by the imprints of its wheels which showed that it had gone some ten feet after the brakes had been put on. We do not think it was going at an excessive speed. In reference to the fact as to whether defendant blew his horn, Powell, who was riding on the wood, says defendant blew it as he was turning around the corner of the street Defendant also testifies to the same fact, and adds that he had blown it a little while before as he passed a wagon a negro was driving. In' this statement he is supported by his witness, Jenkins, who testifies he blew his horn at Stern’s corner, and also a short time before as he passed tbe negro. It therefore appears that defendant, in this particular, was alive to the ordinary rule which requires autoists to blow, their horns as they are rounding street corners, or when they undertake to negotiate crossings at the intersection of streets,

Louberta Temple, a colored woman, says she was near the place of the accident when it occurred. ' She testifies she was then going across the street from the east side to Stern’s corner, the west, side; that plaintiff, the injured child’s father, had crossed the street just ahead of her with another of his little boys. She says she understood plaintiff to have said: “Come on, Jesse”, or “run, Jesse”; that the child started across the street, got about halfway across right in front of the truck, and was struck, she thinks, on the right side of the ■ truck. The record shows that plaintiff ’had crossed the street with his other boy, ahead of Jesse, the child that was injured. He does not deny this, but he denies that he called upon him to come across. In this respect he is contradicted by Dr. Smith, who attended to the child after he was hurt, and who says that plaintiff said he was crossing ahead of the child, and that if he had not called him or rushed him across the street he would not have been hurt. Several witnesses for defendant say that when the truck rounded the corner and came at about ten feet from the child, he suddenly ran in front of the truck and was struck. The defendant testifies that when he was about five feet from the child he dashed right in front of the truck; he saw that there was no chance of not hitting him and that he let the truck roll over him, then applied the brakes and stopped the truck. Powell, who was also in the truck, confirms this statement of defendant with this difference only, that he says defendant was at about six feet from the boy when he started across ' the street and jumped in front of the truck.

Henry Lewis, a witness for plaintiff, says it was just a sudden notion the child took to cross the street, and that “when he did the truck was right on him'”. This witness says also that when the child got in front of the truck he stopped, and in referring to defendant, says: “But there wasn’t any way for that man to stop then.” Testimony of this character shows that the child was dangerously near the truck when he suddenly ran or dashed across the street and found' himself in front of the truck. He was evidently dazed by the position in which he found himself, as it is testified by most of the witnesses that he appeared as dancing or jumping in front of the truck before he was struck. Evidently the child, being called by his father, who had gone across the street ahead of him, was probably temporarily upset, and under the sudden emotion of the moment dashed or ran into the perilous position in front of the advancing truck in attempting to join his father on the 'other side. Tom Frazier, witness for defendant, says the child was looking at a signpost as his father ,was going across the street. The defendant says as he was coming along he saw this boy looking at a signpost, and that he dashed in front of his truck when he got a few feet from him. Powell also says he had stopped and was looking at this signpost on the side of the street, when he suddenly ran across in front of the truck. Obviously, childlike, this boy was fascinated by some picture on this signpost, and when unexpectedly' called by his father, made a rush to go across and meet him on the west side of the street which resulted in the unfortunate accident. The estimate of the rate of speed the truck was traveling does not,„ as hereinabove stated, give with any degree of accuracy the number of miles it was moving per hour. The position of the child near the signpost, the suddenness with which he 'started across, and the fact that several witnesses for defendant and one for plaintiff testified that defendant could n'ot have stopped his truck in time to avoid the collision, show that defendant’s truck must have been in very close proximity to the child when he ran or dashed in front of it.

Such being the situation existing at the time, even if the truck had been traveling at eight miles an hour, we are of the opinion that it could not have been stopped in time to avert striking the child, and that the accident would have been equally unavoidable. The proof therefore fails entirely to prove that defendant was at fault or negligent when he struck the child. This proof was essential to entitle plaintiff to recover under Article ,2315, Civil Code. In the absence of such proof recovery cannot be allowed.

This relieves us of the necessity of discussing the other very interesting questions presented in the brief of counsel for plaintiff.

The demand was properly denied.

DISSENTING OPINION OF

ELLIOTT, J.

According to my appreciation of the evidence, the injury suffered by plaintiff’s child was due to the fault, neglect and imprudence of the defendant. The street corner crossing where the injury occurred was in such steady use at the time in question that defendant, turning the corner with a motor truck loaded with a cord of wood should have taken precautions adequate to the situation. He had a clear view all around and he should have been looking and watching, not only ahead for other vehicles coming and going for his own safety, ' but he should have been watching both sides of the crossing for children and infirm people on foot about to, cross at the same time he was using the street. They had as much right, to cross as he had to use the street. It was established by the' defendant himself that he saw the child when it was in about five feet of his truck, that he made no effort to stop because he could not do it until he had run oyer the child. He then applied the. emergency brakes and his truck, after skidding about ten feet, was brought to a stop. A speed that requires skidding ten feet before it can be brought to a stop is reckless at such a time and place, because stops to save life or limb at such times and places are generally emergency stops that must be sudden and within a distance of four or five feet, else there is no use in stopping at all. The stop that defendant made was of no use at all; he might as well have kept going. A stop that is not worth while is not an adequate precaution. Defendant was not watching the side of the street, else he would have seen plaintiff’s child, stopped on the side, but in the act of starting across in his front. He heard the father call it and knew or should have known that it would do just as it did and should have stopped when the act would have saved running over it. A prudent man would have done that. It was imprudent not to do it. I am satisfied that the father called the child. It was an unsafe thing to do without first making sure that there was no motor vehicle coming that might strike him; but the thoughtless act of the father is not a bar to the action to recover in right of the child.

The defense of “accident” is not to my mind established. An accidental injury to a child at the time and place in question can be said to be some act or movement of the child which the defendant, acting prudently and with, reasonable foresight, could not foresee and had no reason to expect. Defendant, acting prudently, was bound to know and foresee that the child standing on the side of the street, plainly within his view if he had been watching, was about to start across the street in his immediate front, and when he heard the father call it he should have stopped then, in time to avoid running over it. He should not have.been going at a speed that it was no use to try to check until after he had run over it, because that was no precaution and the result of it was a matter to be foreseen.

Negligence in a ease like the present can be said to be the failure on the, part of defendant, driving a’loaded motor truck, as he turned the corner and started across the passage used by people afoot, to observe this child and that it. was. about to start across the street in his, immediate front and he should have made ready then to stop to save running over it, and when he heard its father call it and saw it start, he should have stopped. He should have been going at a rate of speed that he could have checked in time to avoid running over the child. To not look and see if a child or infirm person is in the act of starting across, to not see anybody in plain view and to not be able to stop if the emergency demands it is imprudence and negligence and equivalent to no precaution at all at such a time and place for the purpose of saving life and limb.

I think the evidence establishes a case of negligence and want of care on the part of defendant. The judgment appealed from should, in my opinion, be reversed and judgment for a reasonable sum rendered in favor of the plaintiff for the use of his child.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    GARRISON v. NATALBANY LUMBER COMPANY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Petitory and Possessory Actions — Par. 11, 13.
    Plaintiffs who have not a patent under the purchase by their vendor, but a receipt for public land which the state had the power and authority to sell without a patent, is sufficient to maintain a petitory action.
    2. Louisiana Digest — Petitory and Possessory Actions — Par. 11, 13.
    A receipt for public land which was sold by the state, which . had power and authority to sell, accompanied by actual possession for more than thirty years is sufficient title in a' petitory action to defeat the adverse claimant.
    (Civil Code, Article 3437.)
    Appeal from the District Court, Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by Mrs. Anna Garrison, et al., against Natalbany Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. K. Strickland, of Baton Rouge, attorney for plaintiff, appellee.
    Kemp & Buck, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

Action of slander of title, defendant denying that the plaintiffs, have actual possession as owners, alleging that it is in actual possession as owner by title and setting out its title.

Prom a judgment in favor of the plaintiffs the defendant appealed.

Mrs. Anna Garrison, widow of Stephen A. Garrison, deceased, intestate; Lawrence Garrison, Clyde M. Garrison; Lillie Garrí-, son, wife of James Seymour; Edna Garrison, wife of Walter Comeaux; Alma Garrison, divorced wife of George U. LeBlanc; Margery Garrison, wife of Louis Bauer; .George S. Garrison; Anna Garrison, wife of William Kennard; Isetta Curtis, wife of E. A. Burke; Wallace Curtis, Maime Curtis; Rose Curtis, wife of Dunbar Martin, and Leon Curtis, heirs at law of Stephen A. Garrison, deceased, brought this action against Natalbany Lumber Co., Ltd., for slander of their title to the SE14 of the SW%, Section 32, T. 5 S., R. 3 E., situated in the Parish of Livingston. The parties to the suit have not raised any question of recusation, but we observe from the record the order signed by a member of this court, at the time the judge of the District Court in and for the Parish of Livingston, in the Succession of Charles W. Henry, dated June 9, 1906. The order appears, on page 12 of the abstract of title placed in the record by the parties. Natalbany Lumber Co., Ltd., is claiming under Charles W. Henry and this abstract shows that at the time said order was signed Stephen A. Garrison was also claiming title and possession to this land, as well as Charles W. Henry. The conflicting claims, however, were not involved in the matter acted on by the court in said order, and therefore it does not appear that any legal ground for recusation exists on part of the member of this court who signed the order mentioned.

Natalbany Lumber Co., Ltd., excepted to the demand of the plaintiffs on the ground that their petition sets forth no right or cause of action. That their petition does not state the date of the commeneement of their alleged possession nor any specific act of slander. Their petition alleges that the plaintiffs through their authors have had actual possession of the property in question by titles translative of property for more than thirty years and that their title has been slandered by defendant. This was a sufficient averment. The exception was properly overruled. Natalbany Lumber Co., Ltd., then answered, denying plaintiffs possession as owners and alleged that it was in actual possession as owner of the timber, except the oak, by title, and set out the chain of title of its authors as owners of the land, of which the timber was part, back to the government of the United States, called its vendor of the timber in warranty and prayed that plaintiffs’ demand be dismissed. Mrs. Garrison and her co-plaintiffs moved to strike out the call in warranty on the ground that the defendant by its answer had converted the action into a petitory action with itself as plaintiff, and that the plaintiff in a petitory action could not call his vendor in warranty. The plaintiff in a petitory action can not call his vendor in warranty. If only the question of possession is at issue there, can be no call in warranty. Simon vs. Reynaud, 10 La. Ann. 506; Foote vs. Pharr, 115 La. 35, 38 South. 885; Clapham vs. Clayton, 118 La. 419, 43 South. 36. T'he Natalbany Lumber Co., Ltd., can not, under its answer, be regarded as a defendant in a petitory action, consequently .defendant has no ground for complaint on account of the ruling striking out the call in warranty; we find the ruling to be correct.

Natalbany Lumber Co., Ltd., offered parol evidence for the purpose of showing its actual possession of the timber as owner and offered the chain of title of its authors back to the government of the United States for the purpose of showing its ownership by title. We will therefore consider the claim of the defendant first. On the question of actual possession, the evidence shows that defendant and its authors have cut a few trees, and some wood on the land at different times; but the plaintiffs have cut longer and more than the defendant and both sides have paid taxes. It seems plain that defendant can not depend on the acts of possession which itself and authors have exercised and it must fail unless it has adduced and made out a title which should be recognized against the plaintiffs. Defendant makes out a regular chain of title designing from the United States government through a patent issued to Caleb Cushing on November 3, 1877. The patent issued to Caleb Cushing states that it was issued pursuant to a judgment of the Supreme' Court of the United States in a suit entitled Caleb Cushing vs. United States, rendered in 1873 at the October term of that court, a copy of the opinion being on file in the land office at Washington, D. C. The patent further declares that Cushing was entitled, under the mandate of the court to 4122 and 22-100 acres of land and that the SE% of the SWÍ4, Section 32, T. 5 S., R. 3 E., former Greensburg Land District of Louisiana, was part of the land confirmed to him under said judgment. One could hardly ask for a better showing. We have endeavored to find the report of the decision in order to ascertain what bearing, if any, it has on the previous purchase of the same land from the State of Louisiana made by Joseph A. Minton, which will be. taken into account as having an important effect on this patent. A copy could be obtained from the land office at Washington, but we find none in the record.

On the trial Mrs. Garrison and her co-plaintiffs as legal heirs of Stephen A. Garrison offered evidence,, parol and written to establish their possession as owners by title translative of property as alleged in their petition. The evidence shows that Stephen A. Garrison acquired by title from W. J. Powers a tract of land containing 226 16-100 acres,' described by boundaries, ,in December, 1893. The boundaries included the land in question. Mr. Garrison moved on the land with his family, lived on it and cultivated about twenty or twenty-five acres for nearly twenty years. It had a residence on it when he bought it and the field that he cultivated was fenced and. he kept it fenced and continued cultivating the same field. The entire tract was not fenced, only the field was fenced, about an acre and a half of the SE% of the SW% of Section 32, T. 5 S., R. 3 E., being included in the field. The balance of the land involved in this suit was uninclosed and unimproved, as well as the balance of the tract outside the .inclosures of house and field. William J. Powers acquired the tract from John S. Powers in July, 1888. The title from John S. Powers to W. J. Powers is by boundaries which included the land in suit. W. J. Powers occupied the land and cultivated the field while owner of it. John S. Powers acquired the tract of land from the Succession of Addie C. Norwood in June, 1887, and had actual possession of the tract while he owned it. Addie C. Norwood acquired the tract by boundaries from Mrs. Louisa Allen in August, 1886. The boundaries included the land in suit. Mrs. Allen cultivated the field and had actual possession of the tract. Louisa Allen acquired the tract described by the government subdivisions from Joseph A. Minton in January, 1873. The sale includes the land involved in this suit. Joseph A. Minton purchased the land in question from J. B. McClendon, receiver of the land office at Greensburg, Louisiana, on May 14, 1862. We take historical notice of the fact that the land office of which J. B. McClendon was the receiver on May 14, 1862, was that of the State of Louisiana. That the state had, at that time, seceded from the United States and become a sovereign power, with an organized government of its own; that it became and was at that time as an incident of its sovereignty the owner of all the public land that previous to the secession had belonged to the United States. That the state had a land office at Greensburg for the purpose of selling the public land that it owned, with J. B. McClendon as receiver. That on May 14, 1862, the United States did not have, as such, any right, authority or jurisdiction over the land that had formerly belonged to. it in this state as part of its public domain and that all such land had become the property of the state for the time being. C. C. Art. 486. That the state as a sovereign power with authority over the. land in question for the time being had the power to sell the land. Vattel’s Law of Nations, Chap. XXI, p. 116.

Assuming, as above stated, it follows that the land in question belonged to the state on May 14, 1862, and the record shows that the right and title of the state to this land passed to Joseph A. Minton. And the right and title of the state having passed to Minton, no right or title to this land could result or reinvest in the United States, due to the readmission of the state into the United States in 1864. It seems to us that in such a situation this land could not become again a part of the public domain of the United States, because the state, while a sovereign power with power and authority to sell this land had sold same to Minton. The Constitution of 1868, Article 149, confirmed all laws and contracts that had been made by the state from January 26, 1861, to the time of the adoption of the Constitution of 1868.

The receipt issued by J. B. McClendon, register, to Joseph A. Minton on May 14, 1862,. comes within the purview of Act 104 of 1871, Sec. 12, which reads:

“Be it further enacted, etc., that the sales and locations of public lands made by the state from the 1st of January, 1861, to the 14th of October, 1864, which are shown by the records of the registrar’s office, be and the same are hereby confirmed and patents shall on demand be issued in the name of the purchaser and be delivered to the party surrendering the proof of entry or location or on making to the satisfaction o.f the registrar proof of the loss.”

In State vs. Bozeman, 156 La. 638, 101 South. 4, the Supreme Court held that a patent issued by the United States for land which did not belong to the United States at the time was null and void.

The receipt issued to Minton indicates that the land called for by the receipt is high land. The Act 104 of 1871 applies alike to all the lands which had been sold by the state within the time indicated, whether high or low. The confirming power of Act 104 of 1871 fixed in Minton a vested and irrevocable right to this land. The efficacy of Act 104 of 1871 was recognized by the Supreme Court in Marks vs. Martin, 27 La. Ann. 527. In that case a purchaser from t'he state was sued in a petitory action by the holder of a patent from the United States and the court held that a subsequent purchaser from the United States had no right which could divest the previously acquired and vested right, acquired from the state. The case was taken on a writ of error to the Supreme Court of the United States, 97 U. S. 345, and the decision in Marks vs. Martin, 27 La. Ann. 527, was not disturbed. The public land situation in the State of Louisiana on May 14, 1862, was involved in the case, Cole vs. Thompson, 35 La. Ann. 1026, and Betz, etc., vs. I. C. R. R. Co., 52 La. Ann. 893, 900, etc., and 922, etc. A rehearing was granted in the case last mentioned and the decision due to a compromise never became final, but the case is generally regarded as an authority bearing on the subject of land sales at that time by the agents of the state. The cases cited uphold the rights of purchasers from the state in the sitution mentioned. The plaintiffs have not produced a patent under the purchase by Minton, but a receipt for public land, which the state had the power and authority to sell without a patent is sufficient to' maintain a petitory action. 4 N. S. 260; Newport vs. Cooper, 10 La. 155; Sarce vs. Dunoyer’s Executor, 11 La. 220; Guidry vs. Woods, 19 La. 334; McGill vs. McGill, 4 La. Ann. 262; Terry vs. Hennen, 4 La. Ann. 458; Dickason vs. Smith, 5 La. Ann. 196; Simier vs. Perrodin, 35 La. Ann. 931; Broussard vs. Broussard, 43 La. Ann. 931, 9 South. 910; Broussard vs. Pharr, 48 La. Ann. 230, 19 South. 272; Betz vs. Illinois Central R. R. Co., 52 La. Ann. 393, 24 South. 644. If such a receipt is sufficient to support a petitory action, it is reasonable to hold that such a receipt, accompanied by actual possession is sufficient to defeat an adverse claimant in a case like the present.

We conclude that the patent issued by the United States to Caleb Cushing in 1877 for the land in question is null and void because the Unitfed States was not the owner of the land at the time, a superior and vested right and title to the land having been acquired by Joseph A. Minton from the State of Louisiana by the purchase of May 14, 1862.

More than forty years has passed since Joseph A. Minton sold and delivered the land to the authors of the Garrison title. More than forty years has passed since the United States issued the patent to Caleb Cushing. And the evidence shows that for more, than thirty years the successors in title under Minton have had actual possession of a tract of land which included within the boundaries by which it was sold the land in dispute and with the intention of possessing as owners the entire tract called for by the boundaries.C. C. Art. 3437. The plaintiffs, Mrs. Anna-Garrison and her co-plaintiffs, have not only had actual possession of the land as owners under title translative of property for more than thirty years through their authors in title, but they adduce and exhibit the superior and true title to the land. The judgment appealed from is correct.

Judgment affirmed, the defendant and appellant to pay the cost in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit
    LEVY v. MAHER
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Brokers—Par. 1, 2, 17.
    Under Act 226 of 1920, one who is neither an employee, nor a representative of another who has real estate to sell, nor is he a licensed real estate broker, cannot recover for a commission for the sale of real estate.
    Appeal from the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.
    Action' by Leon Levy against John M. Maher..
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Geo. R. Blum, attorney for plaintiff, appellant.
    Howell & Wortham, of Donaldsonville, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff’s demand is based upon a claim for commission on the sale of defendant’s Hotel Donaldson, situated in the town of Donaldsonville.

Plaintiff alleges that he was employed by defendant to sell said hotel and all its appurtenances for the price and sum of forty-five thousand dollars in consideration of a commission of five hundred dollars. This statement is not entirely denied by defendant, but he qualifies it with the modification that he made this offer in the presence of several persons, among whom was the plaintiff, but to no one person in particular.

Plaintiff then alleges that defendant did sell the hotel to Joseph Stovicec for the price and sum of forty-two thousand two hundred and fifty- dollars and he alleges in substance that he was the procuring cause of the sale. He fails, however, to allege or prove that' he carried out the terms of the offer or of his alleged employment by procuring a purchaser for the stipulated price of forty-five thousand dollars. He nevertheless prays for judgment recognizing his right to the commission as stipulated in the alleged contract.

Prom an analysis of these allegations it appears as if the suit is first based upon the alleged contract, which is later partly abandoned, and is then pitched upon a quantum meruit.

Defendant, however, did not avail himself of this technical defense of compelling plaintiff to elect on which cause of action he desired to proceed, and the court is not authorized or justified in advancing such a plea on behalf of defendant, so that the case will be considered from the mixed standpoint in which it is presented.

Our appreciation of the facts as they appear from the evidence in the record are that plaintifff first directed the attention of the eventual purchaser, Joseph Stovicec, to the fact that defendant desired to sell his Hotel Donaldson, and induced said purchaser to make an offer to defendant to buy the place; that plaintiff however, was unable to induce Stovicec to make -an offer of more than thirty-five thousand dollars. That pending negotiations between Stovicec and defendant, which lasted about two or three months, defendant told plaintiff that owing to the fact that he was unable to secure his price of forty-five thousand dollars he should consider his offer which had not been complied with, as withdrawn, and that the deal was off. That plaintiff told defendant not to lose the sale on his account but to go ahead and sell. Stovicec and defendant thereafter came to an agreement under which the sale was made for forty-two thousand two hundred and fifty dollars.

Some time after the sale was completed defendant remitted fifty dollars to plaintiff as a gift or recompense for inducing Stovicec to. negotiate with him for .the sale of the hotel. This act of defendant, no doubt, induced plaintiff to believe that defendant owed him a greater recompense and this suit was then instituted. It is shown that although plaintiff claims to have acted as agent of defendant and sues for his services as such, he also received remuneration and compensation from ‘Stovieec, the purchaser. He does not pretend to have acted as broker, and the fact that he was getting paid by both sides leaves it in doubt whether he was acting as agent of the defendant or agent of the' purchaser.

Counsel for defendant calls our attention to Act 226, p. 446, of 1920, which seems to bar plaintiff’s right to recover. Plaintiff is neither an employee nor a representative of the defendant, nor is he a licensed real estate broker. The cited act was adopted to protect persons who engage in the purchase and sale of real estate and who pay a license to pursue that occupation. It is designed to prevent the very thing which plaintiff in this case attempted to do.

We do not. believe that there is any merit to plaintiff’s demand. The trial judge rejected it and, we think, properly.

Judgment affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    ABS v. SCOGGIN
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor) .
    1. Louisiana Digest — Landlord and Tenant —Par. 33.
    The leaving of an ice-box, saws, blocks, etc., in a building after it had been vacated by the tenant does not show a reconduction of the lease.
    2. Louisiana Digest — Damages—Par. 3.
    One cannot recover for damages tq an icebox, saws, blocks, etc., which, he left on the premises of another if he was repeatedly requested to remove them and refused to do so. The damages in this case are due to his negligence in refusing to remove them.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.

      . Action by Mike Abs against V. C. Scoggin.
    There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    Miller & Miller, of Bogalusa, attorneys for plaintiff, appellee.
    L. V. Cooley, Jr., attorney for defendant, appellant.
   MOUTON, J.

Plaintiff leased a building to defendant at $12.50 per month. Defendant, on March 2, 1923, executed his note in favor of plaintiff for $50.00 for four months rental. He sues defendant on this note; also for $50.00 more for - four. months rental and for an additional sum of $50.00 for damages alleged to have been caused by defendant to shelves and counters in the building.

The defendant admits the note is due, but claims $345.00 in reconvention for the destruction or injury to an ice-box, meat saws, blocks, ice hooks and linoleum, less the amount of the note.

Judgment was rendered against defendant for $98.00 and rejecting his reconventional demand. He appeals and plaintiff prays for an increase of $50.00 in the judgment.

The proof shows that when the note for $50.00 was made on March 2, 1923, that it was given plaintiff in full payment for the rent to that date; that the lease was then terminated and that the keys of the building were returned to plaintiff. The icebox, saws, blocks, etc., remained in the building: Pour months after defendant had left'the premises, the saws, blocks and ice-box were removed from the building by plaintiff, who is now claiming rent in the sum of $50.00, for the time these articles remained in the building before their removal. , If these, articles were in his way plaintiff was at perfect liberty to remove them immediately after defendant surrendered the building, or at such time that would have suited his convenience. This removal could have been made at defendant’s risk and expense. The fact that these articles were permitted to remain in the building did not effect a reconduction of the lease so as to give plaintiff the right to recover rent for the four months, dating from the termination of the lease to the time of their removal, nor for the value of the use- of the building, as it was optional with plaintiff either to remove the articles or to permit them to remain where defendant had left them after surrendering the lease. Plaintiff also claims damages in the sum of $50.00 for damages done to shelves and counters. As to the shelves, it seems they were made of boards nailed to the wall. As to the counters, it is doubtful if any existed when the building was leased. There is no proof to show injury to shelves or counters, and plaintiff has therefore no claim for damages for this item.

Defendánt is asking $295.00 in reconvention for the destruction or damage to an ice-box, meat saws, blocks, etc.' The record fails to show that these articles were either destroyed or seriously damaged when they were removed from the building by plaintiff. The proof shows that defendant was» requested repeatedly by plaintiff to take these articles away from the building and that defendant had failed to comply with the request. It was clearly the duty of defendant to remove them from the building, as he had been asked to do so on several occasions. He unquestionably had the right to remove these articles which' he permitted to remain in the premises regardless of his own duty and the solicitations of the plaintiff. If, under such circumstances, they were thereafter injured or damaged whilst being removed by plaintiff, defendant has but himself to blame, and can not recover damages therefor. The district judge, correctly rejected defendant’s reeonventional demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reduced to the sum of fifty ($50.00) dollars with legal interest from the 17th of April, 1923, and as thus amended it be and is hereby affirmed.


text:
    No. -
    First Circuit
    BABIN v. YOUNG
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Appeal—Par. 509.
    Where the plaintiff acquiesced in the judgment by voluntarily paying it, the appeal must be dismissed for want of contest.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by Oscar Babin against W. C. Young, et al.
    Motion to dismiss by defendant.
    Appeal dismissed.
    Leslie A. Pitch, of Baton Rouge, attorney for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, attorneys for defendant,' appellee.
   MOUTON, J.

Ronaldson-Puckett Company had a judicial mortgage against J. Wallace Long, from whom plaintiff bought a parcel of land with improvements. Plaintiff proceeded by rule against the clerk of - court of East Baton Rouge and Ronaldson-Puckett 'Company to have the judicial mortgage in favor of Ronaldson-Puckett Company resting on the property so purchased by plaintiff erased and cancelled from the public records. .

Prom a judgment dismissing his rule plaintiff has taken an appeal to this' court.

Defendant moves to dismiss the appeal, alleging that plaintiff has acquiesced in the judgment by voluntarily paying it; that the judicial mortgage has been cancelled, and that only a moot question is presented for decision.

Ronaldson-Puckett Company, through its president, has attached its affidavit to the motion to dismiss in which it acknowledges that its judgment bearing on the property bought by appellant has been paid, as alleged in the motion to dismiss filed by defendant an.d appellee. Attached to the motion is also the certificate of the clerk of court showing that the judicial mortgage has been cancelled under the authorization of Ronaldson-Puckett Company.

Plaintiff, appellant, through his attorney of record, has filed a counter affidavit disputing that he has acquiesced in the judgment, but does not deny that Puckett Company received payment of the judicial mortgage, authorized its cancellation, and that it was actually erased or cancelled as appears from the certificate of the clerk. In what he terms his counter affidavit counsel for plaintiff says that, acting in. compliance with a promise of sale, plaintiff sold the property on which the judicial mortgage rested to Philander Smith, who paid the mortgage with part of the purchase price, and that he gave the remainder thereof, $1082.90, to plaintiff. As the whole of the purchase price belonged to plaintiff, vendor, the part which was applied by Smith,' vendee;" to the extinguishment of the mortgage, was1 the moüéy of the plaintiff, who therefore paid the mortgage in question. The. foregoing admission Which appears in the affidavit of plaintiff’s counsel is in perfect harmony with the claim of defendant that the judgment or judicial mortgage had been paid ' by plaintiff and that the mortgage had been erased. . As the only issue between plaintiff. and defendant in the rule was as to whether or not the mortgage had been satisfied and cancelled, that issue has therefore disappeared from the case as appears from the record to which reference is hereinabove made. If a different state of facts were presented in the affidavit and counter-'affidavit or conflicting issues were involved, we would, in such a case, remand the case for a solution by the lower court and have its find-. .ings returned to us in due course, under Succession of Womack, 29 La. Ann. 577, and other authorities cited by counsel for plaintiff.

Such, however, is not the situation, as it appears by admissions and the documents attached to the record that the bone of contention between the parties has been eliminated by payment and which leaves only moot questions for decision.

The appeal is therefore dismissed at appellant’s cost.


text:
    No. -
    First Circuit
    VOORHIES v. MILLER, BURNS AND ROBERT
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    '1. Louisiana Digest — Appeal—Bar. 575.
    A certificate of the clerk of the district court of the death of a party to the case and the names, of his heirs will not be accepted as proof by the appellate court for the purpose of changing the parties to the appeal.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, judge.
    Action by G. Arthur Yoorhies against B. M. Miller, A. S. Burns and E. P. Robert on motion to vacate filed by plaintiff.
    Motion denied.
    B. M. Miller, of Bogalusa, and H. E. Ellis, of Covington, attorneys for plaintiff, appellant.
    Borah & Himel, of New Orleans, attorneys for defendant, appellee.
   MOUTON, J.

On motion of attorneys, B. M. Miller and Harvey Ellis, it is asked that this court vacate a judgment rendered by it in the above entitled case on June 9, 1924, against E. P. Robert,, one of the defendant herein, on the allegation that Robert died on May 16, 1924, and was therefore dead when this judgment was rendered. Appended to this motion is the certificate of the clerk of St. Tammany parish certifying to the death of Robert on that date, and to the names of the heirs he left, and in whose names movers desire to have this suit revived. This certificate of the clerk cannot be accepted as proof by this court of the death of E. P. Robert and the date thereof in the absence of the appearance or admission of the party in whose favor the judgment was rendered, and of the heirs he may have left at his demise.

The motion is therefore denied.


text:
    No. -
    First Circuit
    WATSON v. CENTRAL LOUISIANA POWER COMPANY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus ly the Editor.)

    1. Louisiana Digest — Damages—Par. 12, 13.
    Punitive damages are not recoverable under tbe civil law of Louisiana.
    2. Louisiana Digest — Appeal—Par. 637.
    The finding of the trial as to a matter of fact, the quantum of damages, being insufficient, is increased.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Celia Watson against Central Louisiana Power Company.
    There was judgment for plaintiff and both parties appealed.
    Judgment amended and affirmed.
    Ellis & Ellis, of Rayville, attorneys for plaintiff, appellant.
    Purser & Magruder, of Amite, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff had in front of her home property two large oak trees which were cut down by defendant, a company that furnishes electricity to the Parish of Tangipahoa. The trees were cut because they interfered with the transmission line of the company which was strung in close proximity to the trees.

Plaintiff sued defendant for $1000.00, the elements of the damages claimed being constituted as follows: $500.00 for the value of the trees, $50.00 for interference with free access to her property; for worry and grief over the loss of her trees $50.00, and $250.00 for punitory damages.

The claim for punitory damages was properly eliminated below as no such damages are recoverable under the civil law. Douglas, Burt & Buchanan Co. v. T. & P. R. R. Co., 150 La. 1038, 91. South. 503; Hanna vs. Otis, 151 La. 851, 92 South. 360. This is not disputed by counsel for plaintiff, who now claims the sum of $750.00 on his original demand. The trial court rendered judgment in favor of plaintiff for $200.00, from which both parties appeal.

The trees were cut by the company because it considered their removal essential to a proper operation of their plant, and their destruction was neither malicious nor wanton. The trees stood at some distance from the house where plaintiff lives, and were of small benefit to her home as shade trees, their real value consisting only as ornamental trees which were located on a small tract of nine acres worth about $400.00. The sum of $200.00 given to plaintiff by the district judge for the value of the trees, we think, is a fair allowance.

The proof shows that the trees were left by the company in a tangled mass on the property of the plaintiff after they were cut. They remained there for some time and seriously interfered with plaintiff’s free access and exit to and from her home. We find that plaintiff is entitled to $50.00 for this invasion of her property rights. The amount claimed for grief for the loss of her trees, we think, was properly denied, and also for punitory damages, as before stated.

It is therefore ordered and decreed that the judgment be increasd in the sum of fifty ($50.00) dollars, and as thus amended it be affirmed with cost.


text:
    No. -
    First Circuit
    CROWLEY LUMBER COMPANY, INC., v DR. H. C. PLAFFER, ET AL.
    (December 22, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Granted in Part)
    (December 22, 1925. Opinion and Decree.)
    (January 28, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bilis and Notes — Par. 226, 234.
    A promissory note does not necessarily have to be transferred by endorsement or in writing but parol evidence is admissible to prove such transfer subject to the rule (if over $500.00) in Civil Code, Article 2277.
    2. Louisiana Digest — Mechanic's Privileges — Par. 37.
    Where lumber was delivered to two buildings there is a material man’s lien on those two buildings which will be considered proven even though the percentage of the total lumber in each building is not definitely determined.
    ON REHEARING
    3. Louisiana Digest — Mechanic’s Privileges —Par. 28.
    The material men's privilege accorded by Article 3249 of the Civil Code cannot be in solido against two houses and lots. Therefore, if plaintiff does not prove which house the material went into he cannot have a .material men’s lien on that house and lot recognized by the court.
    Appeal from Acadia Parish. Hon. W. W. Bailey, Judge.
    Suit by Crowley Lumber Company, Inc., against Dr. H. C. Pláffer, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Medlenka & Bruner,' of Rayne, attorneys for plaintiff, appellant.
    P. S. Pugh, of Crowley, attorney for defendants, appellants.
   MOUTON, J.

January 15, 1921, a promissory note was executed reading: “I promise to pay to the Toler Lumber Yard the sum of $648.92, the consideration thereof, as therein expressed, being for sundry building materials used in the construction of buildings on certain lots situated in the city of Crowley.” This note was signed by Dr. H. C. Plaffer and Mary E. Bonnette, defendants herein.

Plaintiff, as the successor of the Toler Lumber Yard, institutes this suit for $648.92 face value of the note, subject to a credit of $200.00; prays for recognition of the material man’s lien on the lots and buildings, for its enforcement by the sale of the property, and for payment from the proceeds in preference to all other creditors.

The district judge rendered judgment as prayed for by plaintiff with the exception that he allowed an additional credit in favor of defendants on the note.

Defendants appeal.

The first question presented is as to whether plaintiff has legally acquired the ownership of the note sued upon. Defendants contend • that the note was not endorsed by the Toler Lumber Yard, original payee, and for-that'reason there was no transfer of title thereto to plaintiff, present holder. When this note was executed in favor of the Toler'Lumber Yard, T. J. Toler was part owner thereof, and its manager. He testifies that the Crowley Lumber Company, plaintiff, took up the business of the Toler Lumber Yard, and that the note in question was transferred to it. It is not a sacramental requirement that a promissory note be transferred by endorsement or in writing. Parol evidence is admissible to prove such a transfer, subject, however, to the rule that if the contract for the payment of money exceeds $500.00,,it must be established by at least one witness and corroborating circumstances. C. C. 2277; Hugh vs. Harrison, 2 La. 89; Griffin & Dawson vs. Cowan, et al., 15 La. Ann. 487.

T. J. Toler, by affidavit, declared that the co-partnership formerly constituting the Toler Lumber Yard had been dissolved, and that all its accounts and notes, including the one in contest, had been absorbed by incorporation with the plaintiff company. The affidavit of Toler is fully concurred in by the president of the Krauss & Mangan Company, former co-partner of the Toler Lumber Yard; also by the Crowley Lumber Company, plaintiff, through an affidavit by its treasurer.

Counsel for defendants objected to the introduction of these affidavits, contending they were ex parte documents, and not legal evidence. These affidavits were offered, excepting plaintiff, merely for the purpose of disclaiming title and as corroborative facts and circumstances in support of the testimony of T. J. Toler that the note sued upon had been assigned to plaintiff company. The objection of defendants was properly overruled, as these affidavits were admissible in evidence for the purpose above stated.

Counsel for defendants next contends that plaintiff accepted a promissory note subscribed by L. E. -Carver in payment and extinguishment of the note sued upon'. Carver and Mrs. Bonnett, the other defendant, say that the Carver note was accepted . by T. J. Toler, then manager of the Toler Lumber Yard, in full satisfaction Of the noté in question. Toler denies this emphatically. He says the Carver note was given the Toler Lumber Yard as collateral security, and not in payment of the other.

Miss Ellis, a stenographer in the office of counsel for plaintiff, says that in a conversation over the phone with Plaffer, defendant, in reference to the note sued upon, he asked her if he was to pay it before it was collected on the collateral, which had been given as security. The not in contest was secured by a privilege on buildings and two lots in the city of Crowley, while the Carver note rested for its security on a building located in New Iberia, and not on lots or real estate. Besides, it was not- quite equal in amount with the present note. It is not reasonable to believe that Toler would have accepted such a note in payment of the note he held. These facts, coupled with the testimony of Toler and Miss Ellis, make it impossible to accept as true the contention that the Carver note was accepted in payment of the other. "Defendants have, therefore, failed to sustain their plea of payment. It is also contended by defendants that the value of the Carver note should be applied to plaintiff’s note, because of the negligence of plaintiff to enforce and collect it while Carver was solvent. The proof shows that the Carver note, as before stated, was secured by a privilege on a building, and not on any land or realty.

Mrs. Bonnett did not deny, when questioned, that this building could have been torn down, and that she could have lost her lien thereon as the holder of the Carver note. In answer to the question on this proposition she said her lawyers had told her she would still have a mortgage on the garage. The record shows that the attorneys for plaintiff company made demand on the Carver note without avail; that, through attorneys, in New Iberia, where the building securing the Carver note was located, they were informed that the mortgage securing its payment could not be found; that they were also informed that the house or building upon which the mortgage rested had been torn down and removed. Attorneys for plaintiff obtained judgment on the Carver note, but the evidence does not show that they could have realized any proceeds from this judgment, or could have collected any money on the Carver note when it was placed in their hands for collection. The proof fails to show that the Carver note was lost to defendants for the failure of the Toler Lumber Company or its attorneys to enforce its payment. Plaintiff company cannot be charged With its value for its failure to collect it on account of its inaction or negligence.

The record shows that the lumber for which the "note at issue was given was used in buildings located on two lots, one belonging to Dr. Plaffer, the other to Mrs. Bonnett. Counsel for defendants says the evidence does not show the proportion of lumber used on each lot and that he does not see how it was possible for the district judge to recognize the lien on both lots.

There is no doubt that the lumber was used in the buildings belonging to the two defendants, and which were erected on lots, their property. In signing the note they incurred a solidary obligation, which carried' a lien on the buildings and lots. Though it does not appear what was the exact amount of lumber furnished in each building, the lien certainly rested on the lots and buildings which the court properly ordered sold to pay the privilege of the plaintiff.

Judgment affirmed.

ELLIOTT, J.

This rehearing was re- ■ stricted when graded to the question of the correctness of our decree, affirming the judgment appealed from, recognizing a privilege in favor of Crowley Lumber Co., plaintiff, as successor of Toler Lumber Yard, as furnisher of building materials used by defendants, Dr. H. C. Plaffer and Mrs. Mary E. Bonnette, in the construction or repair of buildings situated on lots Nos. 3 and 4, Block 52, of the city of Crowley.

The record shows that defendants hound themselves in solido in the obligation sued on and admit the indebtedness evidenced by the obligation is for building material sold them by Toler Lumber Yard and used by them in constructing buildings on the lots stated, but on further examination of the law, C. C. Art. 3249, we are satisfied that defendants can not, by convention, consent or admission, create a special privilege in favor of a furnisher of materials as claimed by the plaintiff.

The plaintiff as assignee of Toler Lumber Yard, can have under the obligation sued on no greater rights in the matter of privilege than had its assignor. The evidence shows that Dr. Plaffer is the owner of one of the lots above mentioned with no interest in the other lot, and that Mrs. Bonnette is the owner of the other lot above mentioned, with no interest in the other lot, and that each owns the building on the lot belonging to them, but the evidence does not show which lot they respectively own. The evidence shows that part of the building material in question was used by Dr. Plaffer in the construction or repair of the building on his lot and that Mrs. Bonnette used the other part in the construction or repair of the building on her lot; but the evidence does not show how much of the building material went into Dr. Plaffer’s building, nor how much into Mrs. Bonnette’s building.

The ownership of the defendants being separate, the privilege provided by the law, C. C. Art. 3249, can not be in solido. It can exist against Dr. Plaffer’s lot and building thereon only for the building material used in its construction or repair and against Mrs. Bonnette’s lot and building thereon only for the building material used in its construction or repair. It therefore follows, from the failure to show which lot Dr. Pláffer owns and how much of the building material in question went into his house situated thereon, that no privilege can be recognized as existing against the lot and house belonging to him. And from the failure to show which lot Mrs. Bonnette owns and how much of the building material in question went into her house situated thereon, no privilege can be recognized as existing against the lot and house belonging to her and our first opinion and decree to the contrary must be set aside.

For these reasons the judgment appealed from herein and our first opinion and decree will be now amended as follows: The judgment appealed from and our former opinion and decree to the extent that same recognizes the special privilege claimed by plaintiff, Crowley Lumber Company, against Dr. H. C. Plaffer and Mrs. Mary E. Bonnette, and the lots Nos. 3 and 4 of Block 52, city of Crowley, is annulled, avoided and set aside and the demand of plaintiff, Crowley Lumber Company, for recognition of privilege on said' two lots is now refused and rejected as in case of non-suit. In all other respects our former opinion and decree is reinstated and, except as above otherwise provided, the judgment appealed from is affirmed.

Defendants and appellants to pay the cost in the lower court.

Plaintiff and appellee the cost of appeal.


text:
    No. -
    First Circuit
    PORTAL v. CLAUSE
    (May 4, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Petitory and Possessory Actions — Par. 48, 53.
    Under Article 46 et seq. of the Code of Practice it is sufficient for plaintiff to maintain a possessory action to prove that defendant set up an old fence, cut wood on the premises and posted signs forbidding any one to come on the premises.
    2.. Louisiana Digest — Petitory and Possessory Actions — Par. 69.
    Attorneys fees are not allowed as an element of damage in a possessory action.

      ■"'Appeal from the Parish'1 of St. Landry, Hon: .B. H. Pavy, Judge. '
    Action by Constance Portal against Nicholas Clause. There was judgment for plaintiff and defendant appealed.
    Judgment reduced.
    D. L. Guilbeau, of Opelousas, attorney for plaintiff, appellee.
    John L. Kennedy, of Lafayette, attorney for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment maintaining plaintiff’s possessory action and condemning him to pay damages in the sum of eighty-five dollars, composed of attorney’s fees of thirty-five dollars and compensating damages of fifty dollars.

The case was twice fixed for trial in the district court and although defendant had filed an answer, he failed to appear for either of the fixings, and judgment, after due trial, was rendered in accordance with plaintiff’s demand, as stated, and defendant has appealed.

In this court defendant complains of the vagueness of the description of the property, in the possession of which plaintiff claims to have been disturbed, and also of the insufficiency of the proof upon which the trial judge rendered judgment.

Plaintiff in her testimony, says that she has been in the possession of the land so described, as owner, for many years; that in the month of April, 1923, she was disturbed in her possession of said property, by the defendant who cut wood and posted the premises with signs forbidding any one to come thereon and also by “setting up an old fence which had been put there under her permission”. The suit was filed on September 27,. 1923, within a year and a day of the alleged disturbance. Of course there is no evidence on the part of defendant to contradict this testimony or to cast, any doubt upon- its truth or correctness: This proof unassailed, is sufficient under Art. 46 et seq. of the Code of| Practice, to maintain plaintiff’s action. If on the other hand there- is no such property as that described in plaintiff’s petition, the defendant is not- injured, for the reason that the judgment cannot be executed and will be mere brutum fulmen.

As to the damages, plaintiff says that she had to pay a lawyer thirty-five dollars to file this suit, and that she suffered damages in the sum of fifty dollars.

We know of no law or any precedent in jurisprudence, sanctioning the imposition of attorney’s fees against a defendant in' a possessory action, where the action is not accompanied by the issuance of an anallary injunction. Counsel for plaintiff cites a decision of this court to that -effect. We have no access to that decision, but if applicable here, it should be overruled. As to actual and compensatory damages, we can well conceive that defendant’s acts in cutting wood on the land, posting the premises and erecting a fence thereon may have caused damage to plaintiff in the sum of fifty dollars. While plaintiff’s estimate does not rest upon given details and it may be merely her conclusions from the facts, we do not think it should be disturbed.

For these reasons, the judgment appealed from should be amended by striking out therefrom the item of damages for attorney’s fees fixed at thirty-five dollars, and that it should otherwise be affirmed at the cost of plaintiff and appellee, and it is so ordered.


author: WESTERFIELD, J.

text:
    No. 9314
    Orleans
    WICHITA MOTORS COMPANY, INC., v. HOMEFOLKS COMPANY, INC.
    (May 10, 1926, Opinion and Decree)
    (May 24, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Corporations—Par. 130, 140.
    Officers of a corporation charged with the duty and given the authority to sign checks of the corporation, disbursing its funds, are presumed to know the the consideration for which the money is paid.
    2. Louisiana Digest — Corporations — Par. 167, 178.
    A payment of the sixth note in a series of notes issued by a corporation as part of the purchase price of a motor bus by a check signed by its president and secretary will be considered a ratification of the purchase of the bus by the vice-president without proper authority, when the object and purpose of the corporation was the operation of motor busses for hire.
    Appeal from the Civil District Court, Division “F”, Hon. Percy Saint, Judge.
    Action by Wichita Motors Company, Inc., against Homefolks Company, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    N. W. Bond and E. C. Brodtman, of New Orleans, attorneys for plaintiff, appellee.
    Michel Provosty, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues upon six promissory notes each for the sum of $320.00 or a total of $1920.00, all secured by mortgage upon and representing the balance of the purchase, price of one “New Wichita Bus Truck No. R 3347, Motor No. 52878” which is alleged to have been sold to defendant.

Judgment is prayed for in personam with • recognition of the mortgage.

There was judgment as prayed for and defendant has appealed.

The defendant answers that the alleged act of sale and mortgage is illegal and invalid because unauthorized by any proper resolution of its board of directors.

The defendant corporation was organized, if organized at all, in any legal sense, concerning which there seems to be much doubt, for the purpose of conducting a bus line for the carriage of' passengers for hire. Its original conception was grandiose for a resolution of its board of directors is in evidence purporting to authorize the purchase of 100 motor busses at $6000.00 each and later, and more modestly, 50 busses are mentioned, and, finally one bus is purchased, from the plaintiff, a foreign corporation, represented in this city, by one George W. Stem, as its agent. Stem in addition to representing the plaintiff was also a- member of the board of directors of the defendant, and made one of the four, constituting a bare quorum, at the meeting which authorized the purchase of the plaintiff’s bus. The resolution authorizing the purchase also provided for the issuance of $1750.00 in stock to Mr. Stem.

The contention is that Stem was interested in the sale of the bus, the purchase of which the resolution attempted to authorize both as á representative of the plaintiff corporation because of a commission he was to receive on the sale and also because of the gratuitous issuance to him of $1750.00 of stock. It is argued that a director who is personally interested in the matter before the board cannot be counted for the purpose of' making up a quorum and we are referred to Fletcher on Corporations, vol. 3, p. 3175; Corpus Juris, vol. 14 a. 1854 Verbo Corporations; Cook on Corporations (7th Edition) vol. 3, p. 2464, and other authorities. The legal principle relied on by defendants cannot be gainsaid. Nor is there any doubt that Stem was interested in the transaction though we find no proof that he received a commission from plaintiff. But the fact that Stem was interested and therefore no quorum and therefore no resolution and no authority can not prevent the plaintiff in this case from recovering.

There is nothing to show that the plaintiff was improperly influenced in making the sale, nor is there any proof that it had any knowledge of Stem’s connection with the defendant company as director or beneficiary of a gratuity in stock. So far as the record discloses plaintiff simply sold a bus for which it received $750.00 in cash and 12 notes maturing one each month for $320.00 each. Six of these notes were paid and the remaining six are sued on here.

Without any express authorization given to its executive officer to buy this bus, its acceptance and possession for six months .as well as the payment of the six notes constitutes a ratification of the unauthorized sale. Five of the six notes were paid by checks signed by Stem and A. M. Savage, the vice-president who was the officer acting for the corporation in the purchase of the truck whose authority so to do was conferred by the resolution in which Stem participated which is alleged to be invalid. Counsel urges, and we think with propriety, that these payments cannot be considered as a ratification. But the sixth note was paid by a check signed by V. K. Irion, the president and countersigned by R. T. Leland, the secretary of defendant corporation.

As to this payment counsel contends that these last named officers did not have "full knowledge of the transaction” and the rule that a principal must have' knowledge of the material facts of a transaction consummated by an unauthorized act of an agent before he can be said to ratify the transaction is referred to.

We do not think this rule applicable here because it was the duty of these officers to know, before paying out the funds of the corporation, what occasion there was to do so. Particularly, is this true when paying for the first time one of a series of notes issued by the corporation. It will not do to say that these officers, ■the president and the secretary did not entirely understand what they were doing. It is not alleged that any fraud or deception was practiced consequently we must presume that these officials in disbursing the funds of the corporation knew what they were doing.

Judgment affirmed.


author: MOUTON, J. Elliott, J.

text:
    No. -
    First Circuit
    ELLFORS v. GLASSER
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of fact of the trial court that the defendant voluntarily abandoned his automobile which was Worth $350.00 at the time to the plaintiff, being clearly correct, is affirmed.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the trial court that the defendant's reeonventional demand for the value of movables was not proven, being clearly correct is affirmed.
    Appeal from the Parish of Pointe Coupee, Hon. Wm. Carruth, Judge.
    Action by Fred Ellfors against Thos. H. Glasser. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bouanchaud and Kearney, of New Roads, attorneys for plaintiff, appellee.
    Claiborne and Claiborne, of New Roads, attorneys for defendant, appellant.
    ELLIOTT, J. Dissents in part. Reasons attached.
   MOUTON, J.

Defendant bought an Essex touring car from the National Motor Company for which, in part payment, he executed his promissory note for $850.00 in favor of the company. Plaintiff endorsed this note, subsequently paid it, and brings this suit against defendant for its face value with eight per cent interest as therein stipulated. The purchase price of the auto was $1950.00. Defendant claims, in his answer, that plaintiff took illegal possession of the auto and sold it; that he is responsible for the difference between the amount of $850.00 which he paid as endorser of the note, and $1950.00, the purchase price of the auto, that is, for the sum of $1100.00.

Defendant also alleges that plaintiff took illegal possession of property belonging to him consisting of two horses, butcher carts, tools, etc., of the value of $480.00, and that he has converted same to his use against respondent’s Will. The district judge found that defendant had voluntarily abandoned the auto' to plaintiff which had been delivered to him as a credit on the note sued upon. The evidence, we find, fully sustains this conclusion of the trial court. There is therefore no merit in the contention of defendant that plaintiff had illegally taken possession of the auto. It is true the auto had been in use during only one year when it was transferred to plaintiff, but from the condition in which it was at that time, there can be no doubt it had been subjected to rough usage. It appears that before plaintiff got possession of it from defendant that the latter had sold it to Mr. Levee for $350.00. This sale, it is shown, was rescinded as Levee objected to the sale because the ear was encumbered with a chattel mortgage. The evidence shows that the car, at that time, was not worth over $350.00. Plaintiff, after obtaining it from defendant, had repairs made on the car amounting to $386.00, and which he paid. After it had been repaired plaintiff used the car for about eleven months. He then purchased a new car from Wilbert and Company, and got a credit of $400.00 for the old auto, on the purchase price of his new car. The district judge, thought under the circumstances of the case, that defendant should receive a credit of $350.00 on the note sued upon, as that was the price for which he had sold the old car to Mr. Levee. This is all the credit to which defendant was entitled as the evidence shows that $350.00 was the value of the auto at the time of its transfer to plaintiff.

The district judge denied the claim of defendant for $480.00 which, he contended he should recover from plaintiff for the movables he alleged plaintiff had taken from him illegally and against his will.

The proof shows clearly, that defendant, who had been a partner of plaintiff , in the butcher business, had voluntarily left these movables in the possession of plaintiff.

There is some testimony to the effect that these movables had been left by defendant in the possession of plaintiff as security for • a debt plaintiff had paid to the Bank of Lottie. There is some evidence to the contrary it is true, and this question is involved in some doubt. The proof shows that plaintiff and defendant had .been partners in the butcher business which had resulted in an unprofitable venture, the real cause that brought on the disagreement between them.

In this suit defendant is not asking for the restoration of these movables, but restricts his demand to a claim for their value. The court found that partnership rights might be involved in reference to the contentions of the parties as to these movables. The court dismissed the reconyentional demand of defendant for the movables, as in case of non-suit, reserving him the right of claiming their ownership or value in proper proceedings.

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

Dissenting opinion of

Elliott, J.

I' concur in all that part of the opinion and decree, which deals with the Essex touring ear claimed by plaintiff and the cattle, as they belonged to the partnership; ■but dissent1 from that part which rejects plaintiff’s demand, as in case of non-suit, concerning the horses, carts, saddle, harness and tools; because these things did not belong to the partnership. Defendant admits that they are plaintiff’s individual property. Defendant testifies that the partnership owed a debt to the bank of Lottie and that he paid the debt and took plaintiff’s individual property and has held it about two years, as security for the amount due by the. partnership which he has paid. Defendant should not be made the judge of the rights of the plaintiff.

The plaintiff testifies just as firmly that the partnership did not owe the bank of Lottie and that there are no partnership debts.

If the partnership owes debts, defendant should have had it liquidated, the partnership property applied thereto and if any debts were left unpaid, should have had the share of each partner allotted as the law provides in such matters. He took plaintiff’s • individual property, without plaintiff’s consent and converted it to his own use in disregard of plaintiff’s rights and wishes in the matter. After two years the property is not worth as much as it was at the time. Defendant has tried to sell some of it and may have sold part and should be required to pay the value it had at the time he took it.

The evidence as to its value at that time is not satisfactory; but it was valuable and for want of' more satisfactory evidence on the subject of the value of the property at the time it was taken, the case should be remanded for more definite valuation. This would be better than to require the plaintiff to bring a new suit. There is a delay and expense which is unnecessary. The present suit should finish the case and do justice without requiring a new suit.


text:
    No. —
    First Circuit
    NESON v. WATTS
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 8, 58.
    A business that was to be run for the joint profit of two partners on a fifty-fifty basis after one of the partners had recouped himself for his advances in money is a commercial partnership . under Article 2811 of the Civil Code.
    2. Louisiana Digest — Partnership—Par. 58, 82, 83.
    Commercial partners are each liable in solido for the debts of the partnership.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    Action by Prank A. Neson against Pearlie Watts. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dewey J. Sanchez, of Baton Rouge, attorney for plaintiff, appellee.
    Warren O. Watson, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff sold groceries to the Blue Bird Tea Room a restaurant business . in the City. of Baton Rouge. He claims that Pear lie Watts, defendant, was. a partner in the business with Robert R... Bridges. As the Blue Bird Tea Ro.om .has no assets, he brings this suit for a balance of $192.72 against Pearlie Watts claiming he.. is responsible for that amount . as a commercial partner.

Judgment was rendered for that sum against Watts who appeals.

Bridges testifies that he was a partner of- Watts in the restaurant. ■ He says defendant was to furnish the money to run the business, the exact amount he does not remember; that the amount so furnished was to be paid from the profits, after that the firm was to pay him his salary, and that the profits above the operating expenses-were to be divided equally between them. The salary, -it -appears, was not fixed, but it- was understood it was to be paid Bridges to -operate the Blue Bird restaurant which, however, did not prove a profitable venture.- The- defendant gives a - different version of the contract. He says, he loaned defendant $200.00 which were to be repaid him in monthly instalments by defendant, but that there was no partnership.

Neson, plaintiff, says before the restaurant was opened defendant inquired -of him as to whether Bridges could be trusted with money, and as to his fitness to operate a business of the character in question. His answer was that he thought he was well qualified to run a restaurant successfully. Schienuk, owner of the building where the restaurant was operated, says he rented it to Watts and Bridges. On the other hand, Stephenson, a witness for defendant, says -he sold furniture for the Blue Bird restaurant to Bridges, and carried the account against Bridges, individually.

The district judge evidently believed - that the contract had been made by the parties as was testified to by Bridges. The inquiry by defendant of plaintiff as to the trustworthiness of Bridges and as to his qualifications to run a restaurant coupled with the proof that the building had been leased to defendant and Bridges, naturally leads to the conclusion that those parties had entered into a partnership as was testified to by Bridges who has no apparent interest in the outcome of this case, and as testified by him, appeared reluctantly as a witness and only at the request of the plaintiff.

With corroborating facts of .that character it is not for us to say that the trial judge should have taken the denial of the defendant as true. We believe that the district judge properly accepted the version of the agreement as sworn to by Bridges. According to his version of the contract, no doubt, the business was to be run for the joint profit of defendant and Bridges on a fifty-fifty basis after defendant had recouped himself for his advances in money. This agreement constituted a partnership. C. C. 2811; Robertson vs. De Lizardi, 4 Rob. 300; Chaffraix & Agar vs. Price, Hine & Tupper, 29 La. Ann. 176.

It is true it does not appear that the parties, in their agreement, made any stipulation as to the proportion of the expenses and losses that might be incurred in the management of the business, but this was immaterial because the law provides therefor in the absence of such a regulation by the parties. C. C. 2813.

Counsel for defendant cites the case of Shushan Bros. and Co. vs. Drennan and Hillcoat, 158 La. 480, 104 South. 214. That case is essentially different from the present case which is governed by the articles of the code, and decisions above cited.

Defendant was correctly held responsible for the debt as a commercial partner.


text:
    No. -
    First Circuit
    COMMERCIAL LOAN COMPANY, INC., v. CHARLES JEFFERSON
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial court on questions of fact being clearly correct are affirmed.
    Appeal from the Eighteenth Judicial District, Parish of Pointe Coupee, Hon. Wm. C. Carruth, Judge.
    Action by Commercial Loan Company, Inc., against Charles Jefferson. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. H. Morrison, of New Roads, attorney for plaintiff, appellee.
    M. T. Hewes, of New Roads, attorney for defendant, appellant.
   ELLIOTT, J.

Suit to recover price of a motor truck. Defendant contending that the debt, is that of a third person. That the truck was worn out and is no account; that the debt was extinguished, that defendantdid not incur any personal responsibility, etc. Judgment was rendered in favor of the plaintiff and defendant appealed.

Pointe Coupee Motor Go., Inc., sold a motor truck to Floyd E. Majors, on the installment plan, the purchaser granting and the seller retaining a special mortgage on the truck to secure the purchase price. Commercial Loan Co., Inc., became the owner and the holder of the note representing the purchase price in due course before maturity. After making a number of payments, Majors sold and delivered the truck to Charles Jefferson; but before making the sale he- consulted Commercial Loan Co., Inc., and this company consented to the sale, agreed to take Jefferson as its debtor in place of Majors and to release Majors from all further liability on the note. Jefferson also consulted Commercial Loan Co. Inc., before buying and agreed with this company to receive the truck from Majors, take the place of Majors as its debtor on account of the truck and to pay to Commercial Loan Co., Inc., that part of the original price which remained unpaid.

In buying out Majors, Jefferson executed and delivered to him his note for $75.00 and when the note became due he paid it without complaint and further gave his check to Commercial Loan Co., Inc., paying the next installment due this company on account of the truck; and took possession of the truck as owner. He afterwards declined to pay any more, not because he had not bound himself to do so, but on the ground that the truck was not worth anything.

In a letter bearing date August 10, 1925, written by defendant in response to a letter from - plaintiff’s attorney requesting payment of past due installments of the note, and threatening to seize the truck if the sums due were not paid; defendant practically admits liability to plaintiff for the truck under the agreement stated and states his willingness to relinquish it to plaintiff without a seizure. In addition to this letter, defendant in his answer practically admits the agreement above stated and that he had made a payment on the note which Majors had executed at the time of buying the truck and which is the obligation sued -on.. And as a witness on the trial, he admits executing a note in favor of Majors for $75.00 in extinguishment of Majors’ interest in the -truck and gave his check to the plaintiff, paying to the plaintiff the next installment on the truck, -carrying out in his own name and behalf the agreement he had taken over from Majors, with the consent of the plaintiff.

Now, in such a situation, is the debt now sued for, still the debt of Majors, within the sense and meaning of the law, C. C., Art. 2278: and is Jefferson merely in the position of a verbal surety for Majors? Or is it the debt of Jefferson, based on his own promise and undertaking to pay? * * It can not be the debt of Majors, because Majors acting with the consent of plaintiff, sold and delivered all his right, title and interest in and to the truck to Jefferson and has been released from all liability on account of the truck under the obligation sued on.

Under the -evidence, Majors was discharged from all liability on the obligation sued on; therefore it can not be his debt. As he was discharged, then Jefferson can not be held as occupying a surety-like. position under the obligation sued on, but as having taken over the obligation to pay for the truck and as having received the truck in consideration of the same. The situation is very much like that acted on by the Supreme Court in Watson Bros. vs. Jones, 125 La. 249, 51 South. 187.

It is our conclusion that Jefferson is sued for his own debt; that Majors is no longer a debtor on account of the truck. This appears to be the only serious question in the case. Defendant’s further contention to the effect that the truck was of no value tends to confirm our conclualón. that he is the debtor. The .evidence on that subject does not support the contention .that the truck was not in good condition- at the time defendant acquired it. The facts do not establish that the plaintiff to.ok the truck in extinguishment of the balance due on it. The truck must be sold as the law provides and defendant credited accordingly from the proceeds. We think the defendant did personally bind himself to pay for the truck.

The judgment appealed from is correct. Judgment affirmed.

Defendant and appellant to pay the cost in both courts.