text:
    No. 2445
    Second Circuit
    WHITE v. STRATTON, ET AL.
    (March 4, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 62, 91.
    Where the evidence shows that the seller tendered a valid title to the property sold, he has a right to recover from the buyer the earnest money put in escrow by him upon the buyer’s refusal to accept title.
    2. Louisiana Digest — Partnership—Par. 83.
    Under Articles 2872 and 2873 of the Civil Code law partners are ordinary partners, each partner being bound for his share of the debts.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by James L. White against W. H. Stratton, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Dimick and Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    Frank A. Blanchard, of Shreveport, attorney for defendants, appellants.
   ODOM, J.

This is a suit for $500.00 against W. H. Stratton and the law firm of Scheen & Blanchard, composed of W. H. Scheen and Frank A. Blanchard, and the individual members thereof, in solido.

There was judgment against Stratton and the firm of Scheen & Blanchard for $500.00 and against Frank A. Blanchard for $250.00

“* * * it being stipulated that in the event the said sum of five hundred dollars is satisfied by W. H. Stratton or the law firm of Scheen & Blanchard, the sum of two hundred and fifty dollars shall not be due by Frank A. Blanchard.”

W. H. Stratton and Frank A. Blanchard appealed.

Plaintiff moved in this court that said judgment be amended so as to bind Blanchard and Stratton in solido for the full amount sued for.

OPINION.

On June 5, 1924, a contract was entered into by and between the plaintiff, James L. White, and the defendant, W. H. Strat-. ton, by which White agreed to sell and Stratton agreed, to buy certain real property in the City of Shreveport owned by White provided White could deliver valid title to be approved by the law firm of Scheen & Blanchard who represented Stratton.

It was especially agreed and stipulated in a written contract found in the record that in case Stratton failed or refused to accept the property and to pay the agreed price upon White’s tendering a valid title as per the agreement, Stratton should forfeit and pay to White $500.00 liquidated damages, and, as earnest money, he should deposit that amount with Scheen & Blanchard to be held by them and to be paid over by them to White in case Stratton should default.

Stratton deposited in the hands of Scheen & Blanchard a check on the Commercial National Bank for that amount.

The testimony makes it perfectly clear that Stratton defaulted on his contract by refusing or failing to purchase the property.

White complied with his part of the contract by completing the buildings and clearing the property of all encumbrances. He tendered to Scheen &• Blanchard an abstract showing perfect title and a certificate of mortgages showing cancellation of all liens and encumbrances, all approved by Mr. Scheen, one of the attorneys.

. Stratton was therefore left without excuse for his failure to purchase the property and has no valid defence' to this suit.

Following Stratton’s default, White sought him to collect the forfeit but could not find him. He then called on Scheen & Blanchard to deliver the cashier’s check deposited with them by Stratton. They failed to produce and deliver it.

The testimony shows that in the meantime Frank A. Blanchard, one of the members of the firm,-had extracted it from the firm’s safe and had disposed of it. He says he gave it to Stratton and does not know what became of it.

The check was finally cashed by F. L. Dyer who, it seems, had some connection, with the deal between White and Stratton.

This suit is against Stratton, and against the firm of Scheen & Blanchard, and the individual members of that firm, W. H. Scheen and Prank A. Blanchard.

Stratton made answer through his attorney, Prank A. Blanchard. The firm of Scheen & Blanchard was cited. Citation was addressed to Scheen & Blanchard and was served by delivery to Blanchard. This was sufficient. See Act No. 179 of 1918, section 1, paragraph 4.

But the firm of Scheen & Blanchard did not answer, and the suit was not defaulted as to it. As no issue was joined as between the plaintiff and the firm as such, no judgment co.uld be rendered against the firm. Scheen made no appearance, but the other member of the firm, Prank A. Blanchard, did make answer to the suit as against him. As already stated, the suit was brought against Stratton, against the firm of Scheen & Blanchard, and against the individual members of that firm. Issue was properly joined, therefore, as between plaintiff and Stratton and Blanchard, individually.

The only defence made by. Stratton and Blanchard is that White did not tender the property under valid title. The defence falls, because the facts are to the contrary.

Blanchard does not deny that his firm having accepted the check as stakeholder for the interested parties, is liable therefor or its proceeds if converted by the firm or if not delivered in accordance with the receipt and escrow agreement which it signed. But he defended on the ground that the plaintiff failed to tender the property under valid, unencumbered title, which defence failed.

Counsel for plaintiff asks that the judgment be amended so as to make Blanchard liable for the full amount sued for. That cannot be done, for the reason that the obligation of Scheen & Blanchard to account for the check was a firm obligation and the debt which arose on account of its failure to respond is a firm debt.

Ordinary partners are not bound in solido for the debts of the partnership (C. C. 2872) but each partner is bound for his share (C. C. 2873).

Por the reasons assigned, the judgment appealed from is affirmed, except in so far as it condemns the firm of Scheen & Blanchard for the amount of the debt; appellants to (pay all costs.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3134
    Second Circuit
    EDWARDS v. CAPPEL MOTOR COMPANY, ET AL.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (a).
    Where two automobiles collide going in opposite directions the positions of the cars after the collision showing one of them to have been on the left side of the road proves negligence on his part.
    2. Louisiana Digest — Automobiles—Par. 4, 4 (a).
    Where a chauffeur drives an automobile handcuffed to the steering wheel for one hundre,d and forty hours without eating or sleeping, lie is guilty of the grossest negligence in an accident caused by these unusual circumstances which he imposed upon himself.
    3. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 103, 104, 105.
    Three thousand dollars considered adequate quantum of damages for punctured and lacerated wound on side of neck more than an inch long and an inch wide and about an inch deep causing intense suffering to the child and permanent scar on the neck causing him to hold his head to one side.
    Appeal from the Ninth Judicial District Coui’t, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Joe Edwards individually and for the use and benefit of his minor son against Cappel Motor Company, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    J. B. Nachman; Isaac Wahlder, of Alexandria, attorneys for plaintiff, appellee.
    P. B. Campbell; Hawthorn and Stafford, of Alexandria, attorneys for defendants, appellants.
   ODOM, J.

This is a suit for damages growing out of a collision on a public highway between the automobile owned and operated by plaintiff and one owned by defendants and operated by Carl Olson.

Plaintiff sues for damages to his automobile and for personal injuries to his five-year-old son resulting from the collision. He disclaims fault or negligence on his own part and alleges that the collision was the result of gross fault and negligence of Olson, the driver of defendants’ car.

Defendants, in answer, denied liability and set up as a defence that the collision between the two cars was due solely to the carelessness and negligence of plaintiff in the operation of his car.

The lower court found for plaintiff and gave him judgment against the Cappel Motor Company and the individual members of the commercial partnership, George Hollinshead and William Morros, and the Maryland Casualty Company, in solido, for $210.08 for damages to his car, and surgical bills, and the sum of $3,000.00 for personal injuries to and pain and suffering of the child.

Defendants appealed. Plaintiff answered the appeal, and asked that the judgment for $3,000.00 for the use and benefit of the child, be increased.

OPINION.

The collision between the''two cars took place in the daytime on the gravelled highway between Alexandria and Lecompte.

Plaintiff was driving his own car, and that of defendants was being driven by Carl Olsen.

Edwards, the' plaintiff, was travelling from Alexandria towards Lecompte, and the other car was going from Lecompte to Alexandria. The two cars met and the collision took place about 75 or 80 feet on the Lecompte side of a bridge over a culvert.

Near the bridge-and over on the extreme right hand side of the road going to Lecompte, there was a pile of sand and gravel in the road, which sand and gravel had been placed there by contractors employed to repair the road.

The road at that place is approximately thirty feet wide from shoulder to shoulder or from ditch to ditch.

The overwhelming preiponderaneé of the testimony shows that this pile of sand and gravel extended out into the road not more than four and a half feet and was on Edwards’ side. After he crossed the bridge he drove past the sand pile, the right wheels of his car going through the edge of it. The collision took place at the far end of the sand pile. His car was then within four feet of the edge of the road -or ditch bank on his side. When the cars collided they locked or “hung up” as some of the witnesses expressed it, and it was with considerable effort that they were detached.

The fact that the two cars collided over on plaintiff’s side of the road or the right hand side going towards Lecompte, is attested by every witness who took the stand, including Olson, the driver of defendant’s car, and Nash, who was with him in the car.

Other pertinent facts sworn to by the witnesses without a single exception are that the injury to plaintiff’s car was to the left front end and that the injury to the car driven by Olson was to the front and on the right side; that as the cars stood locked together in the road, plaintiff’s car was headed toward Lecompte and defendants’ car was standing across ■ the road with the front end toward the right side going towards Lecompte; and that as the cars thus stood there was room over on the other side, or Olson’s side of the road, for cars to pass, some three or four having passed while the two cars stood in the road.

The plaintiff testified that he was driving slowly over on the right hand side of the road and that just before the two cars met Olson seemed to lose control of his car; that he first swerved to the right and then turned across the road toward him at an angle of about forty-five degrees and ran into his car. The skid marks made by the Olson car show it did turn across the road and Olson admits that it did, but he says his car turned after the brakes were applied and that the brakes were applied after he saw that a collision was impending. Olson’s testimony is corroborated by that of Nash, who was in the car with him.

The fallacy of his theory is self evident. The cars collided over on plaintiff’s side of the road; Olson, Nash and all other witnesses say that and the physical facts demonstrate it.

Plaintiff’s car being on the right hand side of the road, there was no danger of a collision if Olson had been on his side of the road.

Olson and Nash both swore, as did all the other witnesses, that the injury to defendants’ car was on the right hand side, which shows conclusively that the car was turned out of its course; otherwise the injury would have been to the other side, the two cars having met in the road.

Mr. Morros, the owner of the car, and Mr. Bailey, called by him, swore that they saw skid marks in the road about two feet from the edge over on Olson’s side, leaving the inference that the brakes were applied while the car was on its side. Crediting these witnesses with all sincerity, we think their testimony on this point is of no-weight, for the reason that according to all the testimony a number of cars had passed along the road on that side before these witnesses reached the scene, which would have obliterated the skid marks on that side. Not only that, other witnesses, contradict them.

Morros and Bailey both swore that the pile of sand and gravel extended out to the middle oí the road. But their testimony-on the point is emphatically contradicted by Mr. Bliss, Jeff Collins, Otto Sartin, and others, as well as by the physical facts.

Our conclusion is that Olson, the driver of defendants’ car, lost control, turned to the left across the road, and ran into plaintiff's car, and that he was guilty of the grossest kind of negligence, and our conclusion is further that plaintiff was guilty of no negligence at all. The testimony is conclusive on these points.

In passing, we state that, in our opinion, Carl Olson, the driver of defendants’ car, was, at the time of the accident, wholly incapacitated to operate an automobile.

The witnesses who detailed the circumstances and conditions under which Carl Olson was driving defendants’ car on the occasion, unfold a tale so remarkable and so astounding that we would be loath to believe it had it not been told under the sanctity of an oath in a judicial proceeding.

Two of the defendants, William Morros and George Hollinshead, operating as a commercial partnership under the name of Cappel Motor Company, have the agency for the sale of Overland-Whippet automobiles. Carl Olson is a youth, twenty years old, who hails from Chicago, and was transiently in Bunkie in December, 1926. About that time defendants had received the new 1927 model Whippet car. In order to exploit the good qualities of that car they contracted with Olson for a consideration of $25.00 to make an endurance test of the car. Olson was to drive the car one hundred and forty-four hours without stop. The agreement was that he should be handcuffed, chained and locked to the steering wheel and should drive the car over the public highways in the vicinity of Bunkie,' Lecompte and Alexandria for one hundred and forty-four consecutive hours without a stop, without sleep or food, except liquids, during the entire time.

Circulars were printed and distributed announcing:

“WHIPPET ENDURANCE RUN.
“144 HOURS NON-STOP DRIVE.
“ ‘DARE-DEVIL’ OLSEN WILL BE HAND-CUFFED TO STEERING WHEEL OF NEW 1927 MODEL WHIPPET COUPE. HE WILL LEAVE FROM CAPPEL MOTOR CO. IN BUNKIE, LOUISIANA, 3 P. M. SUNDAY, DECEMBER 12TH AND FINISH DRIVE 3 P. M., SATURDAY, DECEMBER 18th, AT THE STARTING POINT. HE DOES NOT EAT — HE DOES NOT SLEEP.”

The parties carried out the contract to the letter until the car driven by Olson collided with plaintiff’s on the highway. At that time Olson had driven one hundred and forty consecutive hours and was then and had been all the while hand cuffed, chained and locked to the steering wheel. He had not slept a moment, had not stopped, and had taken no food, except liquids. After the collision, the car which he was driving stood in the highway for about three hours, during which time he remained locked and bound to the wheel until Morros, one of defendants, came and released him. He was transferred to another car and drove the remaining four hours to complete his contract.

The conclusion is irresistible that Olson, bound and shackled as he was, without rest, sleep or food, for nearly six days and nights, was so weakened and emaciated that he was incapable, mentally and physically, of operating an automobile with safety to himself and others who might be in the road.

ON THE QUANTUM OF DAMAGES.

The lower court allowed plaintiff, individually, $42.63 for damages to his car, and $167.25 for medical and surgical feds incurred for treating the child.

It also gave plaintiff judgment for $3000.00 for the use and benefit of his five-year old child who was painfully injured as a result of the collision.

The record discloses that the child was in the car with its father when the collision took place. The child received a punctured and lacerated wound on the left side of the neck over the back border of the muscle that runs from the back to the ear down to the top of the chest.

The wound was more than an inch long long and an inch wide and about an inch deep. It bled profusely and the child would, according to Dr. Lett, have bled to death if the flow had not been checked promptly.

The accident hapened on the road, seven miles from Lecompte, where the child was carried for treatment. In order to stop the flow of blood, the child’s father first pressed upon the severed veins and arteries, but he found that would choke the child. He then inserted his finger in the wound to the bottom and held it there until he got to Lecompte. About the time he got to Lecompte the child fainted and the father thought it was dying. Dr. Lett revived the child, performed two operations and stopped the flow of blood. The next day he carried it to Alexandria where it was placed in charge of Dr. Packer who treated it over a considerable length of time and still has it under observation. There was some infection in the wound as evidenced by puss. The child’s suffering during a considerable time was intense, according to all the testimony. As a result of the wound the child has a visible scar and an enlargement or lump on the muscle about two inches from the scar, due to the formation of scar tissue.

All the witnesses testified that at the time of the trial the child carried its head turned slightly to the left as a result of the injury. Some said that was very pronounced — others that it was not very noticeable. Doctor Packer said the child’s left shoulder and arm were weakened and smaller than the right, .due, in his opinion, to the severing of certain nerves on that side. He was of the opinion that the child is permanently injured and deformed. Other reputable physicians expressed the opinion that the child is not permanently injured.

The district judge, who saw and heard all the witnesses and probably saw the child, awarded $3000.00 for its pain, suffering and injuries. We think that amount ample, but not excessive.

Judgment affirmed, with costs.


author: WEBB, J.

text:
    No. 2487
    Second Circuit
    DOWDEN v. ARTHUR
    (May 22, 1928. Opinion and Decree.)

      (Syllabus 5y the Editor)

    1. Louisiana Digest — Sales—Par. 239.
    Under Civil Code Art. 2535 “the redhibition of animals can only be sued for within two months, immediately following the sale.”
    2. Louisiana Digest — Sales—Par. 243; Evidence — Par. 58, 59.
    The burden of proof is on the defendant to show that the animals purchased by him were affected with a redhibitory vice which entitled him to rescind the sale.

      3. Louisiana Digest — Sales—Par. 243; Evi- | dence — Par. 58, 60.
    Where the testimony as to a redhibitory vice in an animal purchased is con flicting, the burden of proof being on the defendant, there must be judgment for plaintiff.
    Appeal from the Eleventh Judicial District Court, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by Clyde Dowden against T. C. Arthur.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Don E. SoRelle, of Many attorney for plaintiff, appellant.
    Boone and Boone, of Many, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Clyde Dowden, instituted this- action against defendant, T. C. Arthur, on January 19, 1925, to recover judgment on two promissory notes, one of which was dfawn by defendant on April 1, 1924, for the sum of one hundred seventy-five dollars, payable to the order of plaintiff sis months after date, bearing interest at the rate of eight per cent per annum from maturity and stipulating for attorney’s fees of ten per cent and the other was drawn by Bill Hollands on January 28, 1924, for the sum of fifty dollars, payable to the order of T. C. Arthur nine months after date, bearing eight per cent interest from maturity and stipulating for attorney’s fees of ten per cent and endorsed in blank by T. C. Arthur, which notes plaintiff alleges he acquired as the consideration of the sale of two mules and a set of harness sold by him to defendant.

The defendant answered on January 25, 1925, setting up as a defense to the action that the mules had been sold to him under a guarantee that they were sound and would work anywhere, and that one of the mules proved to be not as represented but was sickly and would not work to wagon or plow satisfactorily, and is practically useless, and rendering the pair practically worthless, and that defendant had tendered the mules to plaintiff and demanded the rescission of the sale, which was refused by plaintiff, and that defendant had been damaged in the sufn of two hundred fifty dollars in caring for and feeding the animals, and he prayed for judgment rejecting plaintiff’s demands and for judgment in reconvention for the damages alleged.

The plaintiff, apparently anticipating that defendant, under his answer, would attempt to show that the sale was null for redhibitory vices, in the animals, pleaded the prescription of two months under Article 2535 C. C., which was referred to the merits, and, on trial, evidence being admitted without objection tending to show that one of the animals was affected with the vice of balking, the plea of prescription was overruled and judgment rendered rescinding the sale and declaring plaintiff to be the owner of the mules and entitled to possession of the same, and declaring the defendant to be the owner of the notes sued on, from which judgment plaintiff appealed.

The evidence established that the sale was made on or prior to April 1, 1924, and that more than two months elapsed prior to any complaint being made by the defendant, and we assume that it is conceded that under the provisions of Article 2535, which declares that, “The redhibition of animals can only be sued for within two months immediately following the sale,” the plea of prescription would have been good as against a direct action of the defendant to rescind the sale, but it is contended that although the right to rescind the sale was prescribed, the defendant could set up the redhibitory vices of the animals to defeat the demand for the price, or to show that the consideration of the notes had failed.

The defendant carried the burden of proof to establish that the consideration had failed, or that the animals were affected with a redhibitory vice which would have entitled him to res'cind the sale, and passing the fact that the evidence tends to show that only one of the animals was affected with any redhibitory vice, and that it does not tend to show that such vice affected the other animal, or rendered it of-less value (see Andry vs. Foy, 6 Mar. (O. S.) 689), we do not think the preponderance of the evidence established the vice in the animal alleged to have been affected. The testimony as to such vice is conflicting, but the undisputed fact is that defendant worked the animal for more than two months without having made any complaint, and if the vice with which it is claimed the animal was affected existed prior to the sale and was not brought about by the manner in which defendant handled it, such vice should have been discovered long prior to the time plaintiff made any complaint, and considering these facts with the testimony of the witnesses who had worked the animal prior to the sale to the effect that it was not affected with such vice, we are of the opinion that the defense failed and that plaintiff should have had judgment as prayed for. '

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff, Clyde Dowden, have and recover judgment against defendant, T. C. Arthur, in the' sum of two hundred twenty-five dollars, with eight per cent per annum interest on one hundred seventy-five dollars thereof from October 11, 1924, until paid, and eight per cent per annum interest on fifty dollars thereof from October 28, 1924, until paid, with ten per cent as attorney’s fees on the amount of the judgment and interest, and with recognition of plaintiff’s vendor’s privilege on the mules and harness, and all costs of suit.


text:
    No. 3121
    Second Circuit
    PYLANT v. C. R. I. & P. RY. CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 5; Railroads — Par. 59, 63.
    Where driver of a motor truck was driving it very slowly so that it could have been stopped in much less distance than 35 feet the engineer of a train approaching the crossing had the right to assume that driver would stop before going upon rhe track.
    2. Louisiana Digest — Automobiles—Par. 4, 5; Railroads — Par. 59, 63.
    Where driver of a motor truck was driving very slowly approaching a railroad crossing he was negligent in driving upon the track directly in front of a train and this negligence continued down to the moment of the collision.

      3. Louisiana Digest — Automobiles—Par. 5; Railroads — Par. 59, 63.
    Where there is no evidence that the train-' man should have in the exercise of ordinary care, apprehended the purpose of the driver of a motor truck to cross slowly in front of the approaching train or that there was ample time for the train to have been stopped after the truck had been negligently placed in a position of danger, driver of truck cannot recover damages.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by John Pylant against Chicago, Rock Island & Pacific Railway Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Crow and Coleman, of Shreveport, and S. L. Digby, of Ruston, attorneys for plaintiff, appellant.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee.
   WEBB, J.

This suit was instituted by plaintiff, John Pylant, to recover judgment against defendant, Chicago, Rock Island and Pacific Railway Company, for damages for personal injuries sustained by plaintiff •as the result of a collision between a motor truck being driven 'by plaintiff and a train operated by defendant.

The collision occurred in the corporate limits of Bernice, in the Parish of Union, during the afternoon of December 5, 1925, on one of the streets of the municipality, which is crossed approximately at right angles by three tracks of defendant, and resulted in practically demolishing the motor truck, owned by J. E. Buckley, in whose employment plaintiff was engaged at the time, and in severely injuring plaintiff, and in the death of Charlie Ford, a boy thirteen years of age, who was in the motor truck being driven by plaintiff, Pylant, and there were three suits filed against the defendant, including the present, and the others by J. E. Buckley to recover for repairs to the motor truck, and by M. L. Ford, father of Charlie Ford, for the loss of affection, companionship and aid and comfort sustained by him in the death of his son.

The three cases were consolidated for the purpose of trial, and- judgment being rendered against all of the plaintiffs, each appealed and appear on the docket of this Court under the number and style above, and Nos. 3120, James E. Buckley versus Chicago, Rock Island & Pacific Railway Company, and 3119, Martin L. Ford versus Chicago, Rock Island & Pacific Railway Company, all this day decided. ■

The defendant’s line runs approximately north and south through Bernice, and on the street where the collision occurred, which runs east and west, three tracks, referred to in the evidence as the “main,” “house,” and “team” tracks, cross the street and are practically parallel at the point where they intersect the street, the “team” track being east of the “house” track about sixty feet, and the “house” track being east of the “main” track about fourteen feet.

At a point on the “main” track at an approximate distance of three hundred feet from the street crossing, is a switch stand from which point the “house” track diverges from the “main” track, and at a point on the “house” track, approximately sixty feet north of the switch stand on the “main” track, there is another switch stand from which the “team” track diverges from the “house” track, continuing until it reaches the street crossing, and thence across the street for some distance, north, where there is located a platform trom which cotton, or other articles to be shipped, may be loaded on cars placed at that point.

On the afternoon of the accident a north bound freight train stopped south of the switch stand on the “fhain” track, and the locomotive was cut loose and used in switching operations and with the object of placing empty cars at the platform on the “team” track north of the street intersection, and while the trainmen were engaged in switching the cars onto and over the “team” track, Pylant, driving the motor truck on the street, approached and came upon the “team” track from the east, where one of the cars which the trainmen were handling on the .“team” track collided with the truck, with the results stated.

The plaintiffs in each of the suits alleged that the collision was due to the negligence of the defendant, charging that in the switching operations a box car had been thrown onto the “team” track, where • it stopped at a point south of the street crossing and in such situation as to obscure and render it impossible for one approaching the “team” track to see a train on the “team” track approaching south of the box car, and further, that the cars being switched over the “team” track were driven at an excessive rate of speed, without a flagman being stationed at the street crossing, and without a lookout being maintained or any warning signals being given of the approach of the cars, and other charges of negligence which are not pressed here, with the exception that it is contended that, even though it be held the driver of the motor truck, Pylant, was negligent in failing to stop, look and listen before driving upon the track, the accident could have been avoided had the trainmen exercised ordinary care after the driver of the truck had placed the truck in a perilous position.

We find, as the trial court did, that the evidence established that there was not a flagman stationed at the street crossing and that there was not a proper lookout maintained by having a brakeman stationed on the front of the cars, although there was a brakeman running along the side of the train near the end nearest the crossing, and although the engineer, who had some view of the street from which Pylant approached the crossing, maintained a lookout, and although there was another brakeman riding on the cars who could transmit to the engineer the signals given by the brakeman running along the side of the train, and we also agree with the Coux’t in its finding that Pylant, the driver of the truck, did not stop the truck and look and listen before driving upon the track, and even if the box car was standing next to the street crossing, it did not obstruct the view of Pylant, who, had he looked, would have seen the approaching train, and we also concur in the finding of the Court that the evidence did not establish that the train of cars was being driven at an excessive rate ot speed, and that the bell-on the locomotive was ringing as the train approached the crossing; we differ, however, with the trial court as to its finding that a box car was standing on the “team” track, and that - it was struck by the train and thrown onto the crossing, striking the truck, but we find that the evidence establishes that the car which struck the truck was coupled to and a part of the train being shoved over the “team” track.

In view of our differing with the trial court as to the finding of fact in the respect stated, without quoting the evidence, we will state that all of the witnesses who claimed to have noticed the switching operations, with the exception, possibly, of J. E. Buckley, one of the plaintiffs, who was inside of his store during the switching operations,' stated that the “team” track had been cleared of all cars, and therb was not any one who claimed to have seen a box car thrown onto the “team” track by a “flying switch,” and although J. E. Buckley and Pylant, the prese'nt plaintiff, were positive -a box car was standing on the “team” track in the situation alleged by plaintiff, and their testimony is somewhat supported by other witnesses, the trainmen, who were the conductor, engineer and three brakemen, testified that the car which struck the truck was coupled to and a part of the train, and their testimony is supported by the station agent and by two disinterested witnesses.

It appears from the written opinion of the trial court, that he accepted the version of the witnesses for the plaintiff rather than that of the trainmen, for the reason that he found that a “flying switch” had been made during the switching operations, and under a misapprehension of the testimony of the trainmen that they had not mentioned the “flying switch” in their minute detail of the operations, he appears to have concluded that the trainmen had wilfully withheld something, and accepted the version of plaintiff’s witnesses as to the fact.

We find, however, that the trainmen did mention the “flying switch,” designating it as a “drop,” and testifying that the drop was made onto the “house” track, and their testimony is supported in that respect by at least one witness who was disinterested, and being of the opinion that the reason given by the Court for ignoring the testimony of the trainmen was erroneous, and that the trainmen were in a better position to have noted their actions, and the notes of théir testimony not indicating anything else than that they were thoroughly conversant with the facts as to which they testified; we are of the opinion that their testimony is of greater weight than that offered by plaintiffs, who carried the burden of proof.

Under the facts stated, conceding that the defendant was negligent in failing to maintain a proper lookout, and that Pylant was not negligent in failing to stop, assuming the speed at which he drove the truck as he approached the track was such as would have enabled him to exercise his senses of sight and hearing without stopping the truck, as apparently contended by plaintiff, plaintiff -must be held to have seen the approaching train.

“The presumption of law, juris et de jure, is that a plaintiff saw a thing he should have seen had he looked, and that he failed to look at the proper time and in the propér manner if he did not see the things he should have seen by looking.” (Gibbens vs. N. O. Terminal Co., 1 La. App. 371; also, same case, 159 La. 347, 105 South. 367; Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 South. 250; Burton vs. Ill. Cent R. R. Co., 3 La. App. 367.)

Considering the plaintiff’s conduct from the most favorable point of view, he was guilty of negligence which contributed to his injury. Murray vs. Pontchartrain R. R. Co., 31 La. Ann. 490; Barnhill vs. T. & P. Ry. Co., 109 La. 43, 33 South. 63; Callery vs. M. L. & T. R. R. & S. S. Co., 139 La. 763, 72 South. 222; Tucker vs. Ill. Cent. R. R. Co., 141 La. 1096, 76 South. 212; Young vs. La. West. Ry. Co., 153 La. 129, and unless it was shown that the trainmen could have, in the exercise of ordinary care, avoided the accident after the plaintiff had placed the truck in a perilous position.

The contention of plaintiff in this respect appears to be based upon, the testimony of the engineer," who stated that he had seen the truck at a point which the evidence shows to have been- approximately twenty-five or thirty-five feet from the track, and that the train, at the speed it was running, could be stopped in a short distance, and on the assumption that the truck, after it had been struck by the train, had been pushed in front of the cars across the width of the street, which was said to have been forty or fifty feet wide.

While the evidence shows that the truck was in the position assumed, after the train was stopped, it does not show at what point on the street it was struck, neither does it establish the distance within which the train could have been stopped, and the only definite fact established was that the engineer on receiving a signal from the brakeman (who stated he had attempted to warn the plaintiff and had immediately signaled the engineer) had applied the means at his hand to stop the train.

The evidence shows plaintiff was driving the truck at a very slow rate of speed, and that it could be stopped in a much less distance than thirty-five feet, and the engineer having the right to assume that plaintiff would stop before going upon the track (Cook vs. L. & N. W. R. R. Co., 130 La. 917, 58 South. 767; Hurt vs. Southern Ry. Co., 205 Ala. 175; Basin vs. Ala. Great Sou. R. R. Co., 179 Ala. 299; Johnson vs. Director General (N. H.) 125 A. 147), we think under such conditions, the negligence of the plaintiff must be held to have continued down to the moment of the collision (Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 South. 602; Hammers vs. Col. S., N. O. & P. R. Co., 128 La. 648, 55 So. 4; Harrison vs. Louisiana West. R. Co., 132 La. 767, 61 So. 784), in default of proof that the trainmen should have, in the exercise of ordinary care, apprehended the purpose of Pylant to drive over the crossing in front of the approaching train, or that there was in fact ample time for the train to have been stopped after Pylant had placed himself in a position of danger, as to which the record does not furnish any proof, plaintiff could not recover.

The judgment appealed from is therefore affirmed.


text:
    No. 3012
    Second Circuit
    FRIEL v. MURCHISON
    (February 18, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (April 12, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Aleatory Contracts— Par. 11; Bills and Notes — Par. 197.
    Where the defense to the payment of a check is that it was given for a gambling debt is amply proven to the Court’s satisfaction by legal evidence there must be judgment for defendant.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Frank M. Friel against Henry D. Murchison, et al.

      There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    T. F. Hunter; Hakenyos, Provosty and Staples, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn and Stafford, of Alexandria, attorneys for defendants, appellees.
   ODOM, J.

The plaintiff brought this suit against the heirs and legal representatives of John M. Murchison, who died on April 22, 1924, to collect $1429.00.

He alleges, as a cause of action, that he is the holder and owner in due course and for value of a check for $1429.00 on the Planters Bank of Cheneyville, dated April 17, 1924, made payable to him and signed by said J. M. Murchison, which check was presented in due course and never paid.

The defense is that the check is void because given for a gambling debt, that is, to pay plaintiff for losses sustained by Murchison in a gambling game conducted by plaintiff.

The lower court rejected plaintiff’s demands and he has appealed.

OPINION

This case was before us in February, 1926. (See 3 La. App. 559.)

Originally there was judgment for plaintiff and defendants appealed. This Court reversed the judgment and dismissed the proceedings as in case of non-suit.

Plaintiff renewed his demands in the present suit, in which the lower court rejected his demands and he has appealed.

In support of his demands, the plaintiff offered in evidence a check made payable to him for $1429.00, dated April 17, 1924, and signed by J. M. Murchison, and made proof that the check was never paid because Murchison, the maker, died before it was presented for payment. He prosecutes this suit against the heirs and legal representatives of Murchison.

It is admitted that J. M. Murchison signed the check and delivered it to plaintiff.

In further support of his demands, the plaintiff testified that Murchison went to him at his cigar and news stand in the lobby of Hotel Bentley in Alexandria on Thursday afternoon between 3:30 and 5 o’clock and asked for a cash advance of $1425.00 which he handed him, and that at the same time Murchison purchased candy and cigars or cigarettes to the amount of $4.00 making the total indebtedness of $1429.00, for which amount Murchison gave the check. Whereupon plaintiff rested his case. We shall revert to and discuss plaintiff’s testimony later in this opinion.

In support of their defense that J. M. Murchison gave said check to plaintiff to cover his losses in a gambling game conducted by plaintiff in the Bentley Hotel defendants offered no direct, positive proof. But the chain of eircumstafrces which they established is so linked together and so strong that we are wholly convinced that .their defense is made out.

In so holding we have not, as in the former case (3 La. App. 559) cast the burden of proof upon plaintiff of showing that the check -sued on, a negotiable instrument, was in fact given for a lawful, valid consideration. What we do hold in the present case is that defendants have established their defense to our entire satisfaction by legal evidence which we believe.

Priel, tlie plaintiff, is a man of considerable means who owns and operates a cigar and newsstand in the lobby of Hotel Bentley in Alexandria. He lives in the hotel and occupies a large room on the fifth floor thereof In which are two beds, one of Which is occupied by himself.

In this room he conducts a regular gambling establishment where he and others play stud poker, table stakes, m the usual way, according to the testimony. His paraphernalia consists of a poker table and a dozen chairs. There is no limit to the amount which may be won or lost in the game during a sitting. The players, it seems, usually purchase chips to begin with, amounting to $10.00. If they are wagered and lost, they buy more. A regular dealer is employed. He cuts the game one dollar for each deal, which goes to the house, out of which the cards used are paid for and the dealer is paid $15.00 a week for his services. What goes with the balance is not explained, but the inference is strong that Friel gets it, although he says he does not. He pays rent for the room.

The players settle with the dealer at the end of the game, but if they lose more than the amount of their pocket change they draw checks in favor of Priel for the balance, and if a player is skilled or lucky enough to win more than the dealer can pay, Priel pays off with his check.

Priel says the game is conducted by a chartered club, and one witness says the charter is in the room, suspended over th'e table. But according to all the testimony, including the admissions of Priel himself, he is president and general manager. The club, it seems, was organized years ago. If there has ever been a meeting of the board of directors, if the club has ever made or lost any money, if the club ever paid any rent on the room, or if the club ever paid any of the players for their winnings, or if there is at the present time a board of directors, there is not a breath of testimony to indicate that fact.

On the contrary, the testimony shows beyond question that it is Friel’s club, Friel’s gambling establishment, conducted in his private quarters, on which he personally pays rent. The testimony shows further that he controls the game. He says that he would not permit a man to play while intoxicated, that if a player appeared to be intoxicated or was losing more than he should, he would be put out of the game by the players themselves, as they are all gentlemen; but on cross-examination he said that if a player was objectionable to him and he wanted to put him out he thought the players would yield to his wishes. Priel says he employed Rat-cliff and Campbell, the dealers, and fixed their compensation, but says the others were consulted and consented.

Of all those who were called as witnesses and who testified that they had participated in these games, each and every one said he understood it to be Priel’s game. In other words, the testimony shows that Priel was the “club.”

If anything additional is necessary to show that fact, documentary evidence, in the way of checks, supplies this proof. There was offered and admitted in evidence Priel’s personal check for $69.00, dated April 2, 1924, payable to Murchison, which Priel admits was for Murchison’s winnings in a game.

Now, as to J. M. Murchison’s participation in the gambling games conducted by Priel. Murchison was a gambler, somewhat convivial in his habits, and when under the influence of liquor was reckless. According to all the testimony, he gambled in Friel’s place. Friel himself says so. It is further established beyond question that he gambled and lost there at about the time, or just before the check sued on was given. Some of the witnesses called by defendants met him in the place and played with him, until 2 o’clock in the morning, on one occasion about two weeks before he died (Murchison died a day or two after giving the check sued on), and that Murchison was a reckless gambler and lost heavily in the game. One witness said he played in two games there with Murchison and that in one Murchison lost and in the other he won.

in addition to the check sued on, there were offered and filed in evidence three cnecks, one for $10.00, dated 3-29-24, signed by J. M. Murchison, and payable to Friel. Friel says he does not recall what it was for. As the players usually purchased chips to the amount of $10.00 when they entered a game, and as Friel cannot or did not explain, we think the inference that it was for poker chips is reasonable.

There is another check on the same bank dated two days later, 3-31-24, for $791.00, signed by Murchison and made payable to Friel. Friel says he does not know what that check was for, but says that the check is made out in Campbell’s handwriting and that Campbell or Ratcliff handed it to him. Campbell was one of the dealers in Friel’s poker game and made settlements with the players.

There is another check for $69.00 dated April 2, 1924, payable to J. M. Murchison and signed by F. M. Friel. Friel admits that it was given to pay Murchison for his winnings in the game, and that he, Friel, played in that game for a while. Friel admitted that he cashed another check for $200.00 representing money that Murchison lost in a poker game.

With reference to the check for $791.00 signed by Murchison and made payable to him, Friel says he cashed that check for Bill Ratcliff, and testified:

“I did not see Murchison. I said to Mr. Ratcliff, ‘What’s this for?’ And I said, ‘Crops and Women?’ and he kind of laughed and nodded his head.”

But Ratcliff was one of the dealers in the poker game at that time.

We quote from Friel’s testimony as follows:

“Q. Were you responsible for Mr. Murchison’s winnings or losings?
“A. No, sir; he would give the dealer a check and would generally make it payable to me and I would cash it down stairs the next day.
“Q. And if he won any, you generally gave him your check?
“A. Yes, sir; or, if the cash was there, they paid him the cash.
“Q. And if the cash was not there, you gave him your personal check?
“A. Ratcliff would settle with me the next day. When Murchison was playing he had charge of it.
“Q. You will admit that along in the course of two or three weeks’ time there were' considerable dealings between you and Mr. Murchison, and you admit that some of them were poker dealings?
“A. That $69.00 was from the club.
“Q. It was the winnings of a poker game?
“A. Yes, sir.
“Q. And the $200.00, about which you have testified, represented the losings in a poker game?
“A. About that.
“Q. It was about that time, wasn’t it?
“A. It was possibly several weeks before that, I don’t remember.
“Q. In other words, it was generally in connection with the dealings running from about the first of April until about the seventeenth of April (the date of the check sued on) or the 25th of March?
“A. I would not be positive about it, because I don’t know.”

About the time or immediately following . these transactions, in all of which Bill Ratcliff and Campbell, the dealers in the game, and Friel, the operator, were connected, Murchison gave Friel the check which is the basis of this suit. The inference that this last check was also given for a gambling debt seems to us irresistible.

Now, going back to Friel’s testimony with reference to the check sued on. He says that Murchison went to him in the afternoon on Thursday, April 17, 1924, and told him he wanted $1425.00 in cash, that he wanted some of it for a woman in the restricted district and some of it to pay off down at home (Murchison lived in Avoyelles Parish); that he had some of the money at the cigar and newsstand but not that much, and that he got several hundred dollars, he does not' recall how much, from the clerk in the hotel; that he gave Murchison $1425.00 in cash and that Murchison purchased candy and cigarettes amounting to $4.00 and made his check for $1429.00 to cover all. He says Murchison told him he could not afford to write checks for his woman as that would expose him; that the next day was Good Friday when the banks would be closed and that he needed some money down at home.

It seems to us most strange that Murchison would load himself with that much cash and at once betake himself to a house of prostitution in order to give a woman part of it, as Friel said he intended to do, and strange that if Murchison wanted to pay bills down at his home in Avoyelles Parish, why he did not either go to his bank in Cheneyville, on which he drew all his checks, and get the cash, or else pay with checks, as is the almost invariable rule. It 'is hard to imagine that he had bills so pressing down at his home in Avoyelles Parish that they had to be paid in cash on Good Friday. Certain it is that Murchison could hSCve gotten the cash if he had wanted it from his banker in Cheneyville on Saturday — one day later. Why get a check on the Cheneyville bank cashed in Alexandria to pay bills down at his home in Avoyelles Parish when he could have gotten the cash down there as well?

But, aside from all this, Friel unquestionably could have produced witnesses to corroborate his testimony if the story is true. For instance, he says he obtained several hundred dollars of the cash which he let Murchison have, from the clerk of the hotel. If he did, surely some record was made of the transaction on the hotel books. Not only that, it is probable that the hotel clerk would recall the fact. But the clerk is not called as a witness, and the books are not called for.

Again, Friel says that Murchison was keeping a woman in the restricted district, but on cross-examination he admits that he does not know that of his personal knowledge, that he knows it only through hearsay, but he made no attempt to prove it.

Again, the fact that the check is for exactly $1429.00 is somewhat suspicious. Why the odd dollars? But Friel says Murchison wanted $1425.00 in cash and that he then bought merchandise to the amount of $4.00. That explanation has not helped his case.

Friel’s testimony is not corroborated by a single witness, notwithstanding there were some he could have called. Nor is it corroborated by any circumstance.

On the former trial of this -case, the record of which is now before us, Friel was asked:

“What connection have you with a gambling room conducted in Bentley Hotel?”

And he answered:

“I have none.”

And yet, in the present suit, he made admissions while on the stand which utterly belie that statement.

The defense is that the debt sued for is a gambling debt. The defendants made out a much stronger case on the last trial than they did on the first. Our conclusion is that they have made good their defense. They proved to our satisfaction that the check was given for a gambling debt and therefore plaintiff cannot recover. The District Judge was of the same opinion and rejected plaintiff’s demands.

Judgment affirmed with costs.


text:
    No. 3222
    Second Circuit
    AMOSS v. BURLESON
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Novation—Par. 7, 12.
    Under Art. 21S9 of the Civil Code “When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished,” novation takes place.
    2. Louisiana Digest — Novation—Par. 4.
    Although under Art. 2190 of the Civil Code novation is never presumed, nevertheless it is proven'where it is irresistibly inferred from the surrounding circumstances.
    3. Louisiana Digest — Bills and Notes — Par. 209.
    An answer to a petition alleging note made and signed by defendant denying same for lack of sufficient information is not an express denial of signature barring defendant from other defenses under Art. 326 of the Code of Practice, but amounts to a general denial.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by W. B. Amoss against W. J. Burleson.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Robert Roberts, Jr., of Shreveport, attorney for plaintiff, appellant.
    M. T. Monsour and I. Abramson, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a suit on a promissory note for $187.40, executed and signed by the defendant, Burleson. The note was given for an undivided one-half interest in a vulcanizing establishment located at municipal number 2026 Texas Avenue, in the City of Shreveport.

The defendant resists the action on the ground that .subsequent to the date on which he purchased the undivided half interest in said property, he and the plaintiff agreed to set aside the original sale, the consideration for which was $187.40, for which he gave the note sued on, and that plaintiff sold to him the entire interest in the property for $300.00, which amount he paid, and that the obligation evidenced by the note sued on was extinguished by novation.

Plaintiff’s demands were rejected in the lower court and he has appealed.

OPINION

We find in the record an instrument under private signature dated January 20, 1927, signed by plaintiff and defendant, which reads, in so far as it is necessary to quote the same, as follows:

“This is to certify that I, W. B. Amoss, have opened for business a tire and vulcanizing shop at No. 2026 Texas Avenue, for the purpose of building, selling and rebuilding tires and tubes for the general trade and have this day sold to Mr. W. J. Burleson, a one-half interest to consist of tools and machinery such as is used in this line of business, casings, tubes and all rebuilding materials * * * Mr. W. J. Burleson secures W. B. Amoss by note for the one-half interest in the shop, and will pay same out at his earliest convenience.”

While the consideration for the sale is not mentioned, it is conceded that it was $187.40, for which the note sued on was given.

We find also an instrument in notarial form signed by the same parties, dated June 29, 1927, which recites that — W. B. Amoss—

“* * * does by these presents grant, bargain, sell, convey, and deliver unto W. J. Burleson, a resident of the parish of Caddo, state of Louisiana, the following described movable property, to-wit:”

Then follows a description of the vulcanizing outfit.

“* * * in the premises designated by the municipal number 2026 Texas Avenue, city of Shreveport.”

This instrument conveys the entire interest in the property. The consideration expressed is $300.00, represented by one noté for said amount secured by chattel mortgage on the property. This act was duly recorded in the chattel mortgage records of the parish. The note described in the latter instrument was fully paid as is evidenced by the following notation written on the face of the record:

“Note for $300.00 secured by this chattel mortgage cancelled Sept. 26, 1927. D. B. Webster, Dy. Clerk.”

The defendant, Burleson, testified that he originally purchased a one-half interest in the property, for which he gave the note sued on, but that later another contract was entered into by which he acquired the entire- interest therein, as evidenced by the contract of date June 29, 1927. It is his contention, and he. interposed the special plea, that the new or second note for $300 given under the new or second contract, represented the consideration for the entire interest in the property, and that the original obligation for the one-half interest represented by the note sued on has been extinguished by novation. As a witness in his own behalf he gave the following testimony:

“Q. Was this subsequent contract, the one in question here, given for the same thing for which the other one was given?
“A. Yes, sir.
“Q. Given to cover the same thing?
“A. Yes, sir.
“Q. The merchandise and articles covered in this contract — were—comprised the entire stock?
“A. Yes.”

He was then asked if it was understood at the time the latter agreement was entered into, that the original note was to be destroyed, but testimony on that point was excluded by the court on objection of opposing counsel.

Obligations may be extinguished by novation.

O. C., Art. 2130.

Novation takes place—

“When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished.”

C. C., Art. 2189.

While novation is never presumed (C. C., Art. 2190) we think the intention oí the parties to novate the original debt in this case is irresistibly inferred from the surrounding circumstances. The documents found in the record and the testimony show that the original debt was for a one-half interest in certain personal property and that the new note for $300.00 was for the entire interest in the same property. The intention to novate, we think, evidently appears. The two sales involved the same property. The original note was for a one-half interest and the subsequent note for the entire interest. This is not disputed.

In the case of Smith vs. Brown, 12 La. Ann., 299, the court said:

“Novation will not be presumed. It can only be established by express declaration to that effect, by the creditor, or by acts which are tantamount to such declaration.”

Rachal vs. Rachal, 11 La. Ann. 687.

In Short vs. City of New Orleans, 12 La. Ann. 299, the court said:

“Courts are hound to weigh with exactness all the attending circumstances of transactions of this kind in order to ascertain whether the parties have really intended to make a novation of their debts and to release the original debtors by the substitution of others.”
“Novation is not presumed, but if the surrounding circumstances indicate that the intention of the parties was to novate a debt, it will be so held.”

Syllabus, Meyer, Weis & Co. vs. Atkins, 29 La. Ann. 586.

In the case of Patterson vs. His Creditors 9 La. Ann. 228 (230) the court said, speaking of novation:

“In questions of this sort, the doctrine is well settled that novation is not presumed, the. intention to make it must be clearly deducible from the terms of the agreement or acts of the parties. In ascertaining the intention all the attending circumstances must be considered.”

In matters of this kind, the intention of the parties controls, and in the absence of any expression as to the intention of the parties all the circumstances must be considered. We think the facts and circumstances surrounding this case clearly speak the intention to novate.

Counsel for plaintiff contends that the defendant having denied his signature to the note in his answer, and having admitted, as a witness, that he signed it, is cut off from all other pleas.

Code of Practice, Article 326, declares that:

“The defendant whose signature shall have been proved after his having denied the same, shall be barred from every other defence, and judgment shall be given against him without further proceedings.”

Plaintiff in his petition' alleged that he was the holder and owner of the note “made and signed by said W. J. Burleson.”

In answer to that article defendant said:

“That the allegations of article 2 of plaintiff’s petition are denied for lack of sufficient information to justify a belief therein.”

In order to cut a defendant off from all other defences in a case like this, there must be an express -denial of signature.

There is none here. The answer amounts to a general denial, which admits the signature.

See Henderson vs. Alford, 1 La. App. 791.

Bennett vs. Allison, 2 La. App. 419.

Hyde vs. Brown, 5 La. 333.

Beach vs. Wagner, 19 La. 87.

Miller vs. Cohen, 1 La. 488.

Union Bank vs. Succession, 33 La. Ann. 301.

Tesson vs. Gusman, 27 La. Ann. 267.

The judgment appealed from is affirmed with costs.


text:
    No. 2539
    Second Circuit
    THOMAS v. DREW, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 381; Pleading — Par. 62.
    A petition attacking a tax sale upon the ground that the party to whom it was assessed, to whom notice of delinquency was given, and in whose name it was advertised and sold, was not the record owner thereof and that no notice was given to the record owner states a cause of action and exception no cause of action must he overruled.
    Appeal from the Second Judicial District Court, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by J. G. Thomas against H. C. Drew, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed, exception no cause of action overruled, and cause remanded to lower court.
    T. H. McGregor, of Rayville, attorney for plaintiff, appellant.
    A. S. Drew, of Minden, attorney for defendants, appellees.'
   ODOM, J.

The only question before this court is whether plaintiff’s original and two amended and supplemental petitions set out a cause and right of action.

The judge of the District Court did not think so, and on exception dismissed the suit, and plaintiff appealed.

In his original petition, plaintiff alleged that he is the owner of certain property in the town of Minden, having acquired the same from W. W. McDonald on May 1, 1922', and he traces his title by mesne conveyances back to J. W. Murrell.

In his original petition, he alleges that said property was sold on September 17, 1921, at tax sale by the sheriff and ex-officio tax collector for Webster parish fbr the taxes of 1920 to A. Glass, said property having been assessed to and sold in the name of J. W. Murrell, who was not, at the time of the advertisement and sale, the owner of the property, but that, on the contrary, the property was, at the time of the advertisement and sale, owned by Miss Eugenie McDonald, one of plaintiff’s authors in title.

He alleges also that said property was sold by the marshal and tax collector of the town of Minden on November 16, 1921, to the said A. Glass for the taxes of 1920, the same having been assessed to and sold in the name of J. W. Murrell, who was not the. owner thereof at the time of the sale.

He further alleges that notice of delinquency in e.ach case was served on J. W. Murrell, to wdiom the property was assessed, and that no notice was served on Miss Eugenie McDonald, who was the record owner thereof at the time the property was advertised and sold, and that said tax sales were each null, void and of no effect for that reason.

It is further alleged that the purchaser, A. Glass, sold said property on March 25, 1922, to Jules L. Dupuy, and that on April 24, 1923, said Dupuy sold an undivided one-half interest therein to. H. C. Drew and A. S. Drew; said Dupuy and H. C. Drew and A. S. Drew being the record owners and in possession under»A. Glass, the tax purchaser, at the time the suit was brought and against whom he brings this action.

Alleging that said parties have no legal title to said property and that they refuse to yield possession to him, he asked that he be decreed the owner of the property.

In an amended and supplemental petition, plaintiff reiterated all the allegations of his original petition and attached to and made a part thereof certified copies of the deeds showing his chain of title from J. W- Murrell to A. W. Reciter, from Reciter to W. W. McDonald, from McDonald to Miss Eugenie McDonald, from Miss McDonald back to W. W. McDonald, and from said McDonald to plaintiff.

He also annexed the two tax deeds above referred to and the deed from Glass, the tax purchaser, to Dupuy and from Dupuy to A. S. Drew and H. C. Drew.

He prayed that said tax deeds be declared null and void and of no effect and that he be decreed the owner of said property and that there be further judgment decreeing the deeds from Glass to Dupuy and from Dupuy to H. C. Drew and A. S. Drew likewise null and void as to him.

The defendants, Duipuy and R. C. Drew and A. S. Drew, asked, by way of exception, that plaintiff's suit be dismissed, because:

First, it set out no valid right of action; and,

Second, because it set out no valid cause of action.

Defendants then answered, setting up, among other things,

“* * * that the said tax deed and assessment and notice was regular and according to law and the property conveyed thereunder was a valid transfer.”

And, further, in paragraph 12:

“Admit that the said defendants herein are in the actual possession of said property at the time the said suit was filed but do not own said land at the time as said property has later been conveyed to____________ ________________on________________________- — by act of transfer as recorded in conveyance record vol_________ page____________, We.bster parish, La.”

Whereupon the plaintiff filed his second amended and supplemental petition, in which he alleged that since the filing of his original and amended petitions and before answer, the defendants Dupuy and H. C. Drew and A. S. Drew had sold said property to one C. M. Furlow on April 10, 1925, as shown by deed recorded in conveyance hook 68, page 237.

He attacked the said sale on various grounds, which need not he mentioned here.

Adopting and reiterating all the allegations of his original and first amended and supplemental petitions, he asked that C. M. Furlow, the last purchaser, he made a party to the suit and that service of the original and both amended petitions be' made on Furlow and that his second amended petition he served on Dupuy and H. C. Drew and A. S. Drew and that they all be cited according to law, which was ordered by the court.

Whereupon C. M. Furlow tendered the following exceptions:

“Now into court comes C. M. Furlow, made party defendant herein, solely for the purpose of this exception, and shows to the court that the plaintiff’s petition and amendment should be dismissed at his cost, for the following reasons, to-wit:
“First: That plaintiff’s petition and amendment does not djsclose a valid cause of action against your exceptor.
“Second: That the plaintiff’s petition and amendment does not disclose a valid right of action.”

Op the same day the defendants, Dupuy and H. C. Drew and A. S. Drew, filed the same exception, verbatim.

Four days later the court rendered judgment, reciting

“* * * the court being of the opinion that the law is in favor of defendants, Jules L. Dupuy, H. C. Drew, A. S. 'Drew, and C. M. Furlow, and against the plaintiff, J. C'. Thomas, and for reasons this day orally assigned, it is ordered, adjudged and decreed that the exceptions , of no cause of action and no right of action be sustained and the suit dismissed at cost of plaintiff.”

We are not informed as to what reasons the district judge gave for sustaining the exceptions, as he assigned none in writing and the appellee has neither argued the case orally nor filed any brief in this court.

Plaintiff alleges and his exhibits show that, he purchased the property involved on May 1, 1922. He traces "his title, by unbroken chain, back to J. W. Murrell; that J. W. Murrell sold the property on January 28, 1920; the tax deeds under which these defendants claim recite that the property was assessed to J. W. Murrell for the year 1920, that he failed to pay the taxes for that year, that he was given notice of delinquency, and that the property was advertised and sold in his name.

It is alleged and the exhibits show that when the property was advertised and sold in 1921, Murrell was not the owner thereof, having sold the same on January 28, 1920, and at| the time of the advertisement and sale the property was owned by Miss Eugenie McDonald, one of the plaintiff’s authors in title; and it is alleged, which allegation must be taken for true, that Miss McDonald, the) record owner, had no notice of delinquency or of the sale served on her.

' In a very recent case, decided by the Supreme Court on February 13, 1928, that of W. P. Ryalls vs. Mrs. Lottie Todd, et al., No. 28,713, not yet officially reported, the Court said:

“It is. well settled by repeated decisions of this court, that it matters not in whose name the property has been assessed, the owner of record at the time of the advertisement and sale for taxes is to be regarded as the delinquent tax debtor within the meaning of the constitutional provision requiring notice to be given to the delinquent before making the sale, and where the notice of delinquency was not given to such record owner, the tax sale is null and void. Kirlen vs. Howath, 163 La. 904, 113 So. 140, and authorities cited therein; and Pierson vs. Castell, etc., 159 La. 158, 105 So. 274.”

In the case at har, plaintiff attacks the tax sale involving his property upon the specific ground that the party to whom it was assessed, to whom notice of delinquency was given, and in whose name it was advertised and sold, was not the record owner thereof and that no notice was given to the record owner.

He alleges ownership in himself and that defendants claim to own and are in possession of the property and refuse to yield to his claim and asks that said tax title he decreed null and void.

We think plhintiff has set out a cause and right of action.

Regardless of any other question which may he involved and which may have been considered by the lower court, only one is before us on this appeal, and that is whether plaintiff, in his pleadings, has shown a cause and right of action. We think he has.

It is therefore ordered, adjudged and decreed that the judgment appealed from sustaining exceptions of no cause and no right of action, be reversed and avoided; and it is now ordered that the case be remanded to the lower court and there reinstated on the docket to be proceeded with according to law and in due course; costs of the appeal to be paid by th'e appellee; all other costs to await the final result.


text:
    No. 3120
    Second Circuit
    BUCKLEY v. C. R. I. & P. RY. CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor)

    See Syllabus in case of Pylant vs. C. R. I. & P. Ry. Co., reported on page 350.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by James E. Buckley against Chicago, Rock Island & Pacific Railway Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Crow and Coleman, of Shreveport, and S. L. Digby, of Ruston, attorneys for plaintiff, appellant.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, J. E. Buckley, was the owner of the truck which was being driven by John Pylant, the plaintiff in suit No. 3121, John Pylant versus Chicago, Rock Island & Pacific Railway Company, this day decided, and the present plaintiff brought suit to recover damages to the truck and appeals from a judgment rejecting his demands.

John Pylant was the employee of the plaintiff, Buckley, and the collision resulting in damages to the truck occurred while Pylant was driving the truck in the course of and while engaged in the employment and business of Buckley, and the ruling in No. 3121, John Pylant versus Chicago, Rock Island & Pacific Railway Company, is in all respects applicable to J. E. Buckley’s demands, and for the reasons assigned in said suit the judgment herein appealed from is affirmed.


text:
    No. 2529
    Second Circuit
    BETTS, ET AL., v. ATTAWAY
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — New Trial — Par. 3.
    An application for a new trial or to re-open a case, is addressed to the sound legal discretion of the trial court. When that discretion has not been abused, an appellate court should not interfere. In this case, defendant’s failure to appear in court was due to wilful negligence.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Frank Betts and Son against J. F. Attaway.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pugh and Boatner; J. N. Marcantel, of Shreveport, attorneys for plaintiffs, appellees.
    James W. Jones, Jr, of Natchitoches, attorney for defendant, appellant.
   ODOM, J.

This is an appeal from the ruling of the District Judge refusing to re-open the case after the same had been tried and judgment rendered in favor of the plaintiffs as prayed for.

The ground upon which defendant seeks to have the case re-opened is that he was not in court at the time the case was called for trial and had no notice of the setting of the case.

The facts, as disclosed by the record and the testimony taken on the trial of the motion to re-open, are as follows:

The suit was filed on February 10, 1925, and service on defendant was made February 26, 1925. Answer was filed March 18th, on which date the case was fixed for trial for April 22nd.

On that date the case was called up, and counsel for plaintiffs announced that they were ready, whereupon James W. Jones, Jr., attorney for defendant, stated to the court that the defendant was not in court.

The court, at 11 o’clock a. m., stated to defendant’s attorney that he would recess the court until 1:00 o’clock p. m. in order that he might secure the presence of defendant in court.

At 1:00 o’clock p. m. court reconvened, at which time neither defendant nor his counsel was in court. The court waited until 1:40 p. m., and no appearance having being made by defendant or counsel, tbe court proceeded with the case, heard plaintiff’s testimony until 2:10 p. m., when the case was closed and judgment rendered for plaintiffs, up to which time no appearance was made by defendant or his counsel.

On April 24th defendant, through his attorney, filed a motion to re-open the 'case, on the alleged ground that he had not been notified of the setting of the case for trial for April 22nd, hence his failure to appear.

The motion to re-open was tried and testimony taken on May 6th. The testimony shows that defendant lives about seven or eight miles from Natchitoches, the parish seat, and that he left home at about 7:00 o’clock a. m. on May 22nd, the day the case was fixed for trial, and rode on horseback to Natchitoches and reached there not later then 10:00 o’clock a. m. He swore that he did not know the case was set for trial, but that he went in to see his attorney to find out when it would be set.

But the testimony convinced the District Judge and it convinces us that he did know it was s.et and that his failure to appear at the courthouse was deliberate.

When defendant reached Natchitoches on the morning of April 22nd he stopped at the store of Julius Aaron, Jr., on the outskirts of the town. Aaron testified—

“He came and asked me if he could hitch his horse to the rack, and I told him yes, and he said he had a case in court today and he wanted to see Judge Jones.”

Aaron says Attaway then left his store but he did not know where he went.

S. J. Procell, who lives within two hundred yards of the defendant, testified that defendant had worked for him on April 21st and he wanted him to work on the 22nd, but defendant said—

“* * * be had to come to town, he had a case in town.”

Procell further testified that on April 22nd Marion Weaver went to defendant’s residence and in the presence of witness and members of defendant’s family asked for defendant, and that Carl Attaway, defendant’s son, told Weaver—

“He would find Mr. Attaway, he supposed, at the courthouse; he left there to go to the trial he had in town.”

Under cross-examination by Attaway’s attorney Procell was asked if Attaway did not tell him on April 21st merely that he had a case in town, and Procell said:

“He didn’t say that; he said he had a case in town the next day; he said he had a case in town the next day.”

When Attaway did not appear in court for trial of his case, on April 22nd, the trial judge, over the vigorous protest of counsel for plaintiff, at 11:00 o’clock a. m., postponed the case until 1:00 o’clock p. m., and at once, of his own motion, ordered an instanta subpoena issued for him and ordered the sheriff to serve it.

M. J. Weaver, a deputy sheriff, went immediately to Attaway’s residence, seven miles away. Arriving at Attaway’s residence, he asked for the defendant and was told by defendant’s wife—

“He left early that morning at 7 o’clock coming to Natchitoches he had a case there.”

After that, Weaver talked to defendant’s son.

“I asked him did he know where his papa was; he said I ought to find him at the courthouse, he had a case.”

Weaver was asked by Attaway’s attorney if they, the boy and Attaway’s wife, told him defendant was going to town on account of the case, and Weaver said—

“I told her I had a summons for him to come to town for the case, and she said that was what he left for.”

Attaway reached Natchitoches not later than 10:00 a’clock a. m., but he did not go to the courthouse. He told Aaron that he had a case in court that day and wanted to see his attorney. He could not explain why he did not go to the courthouse to find him.

Defendant’s attorney testified that he was “under the impression” that the court recessed until 2:00 o’clock. He. met his client before that time but did not at once proceed with him to the courthouse, but says he left his client, telling him to wait and he would send for him when he wanted him. The attorney says he reached the courthouse at 2:00 o’clock and was told that the case had been tried and the court had adjourned.

His testimony that he went to the court house at 2:00 o’clock is disputed by Mr. Ford, a deputy sheriff, who said the attorney reached the courthouse at 2:40 o’clock by his time. This was forty to forty-five minutes after the attorney said he thought court would convene, and more than one hour after the attorney says he met his client on the street or at a store.

After meeting his client, he says he proceeded to the courthouse without him, notwithstanding he knew that court had recessed for the express purpose of getting defendant in court.

Counsel for defendant says he was “under the impression” that court recessed until 2:00 o’clock.

But the District Judge says, he told him from the bench that he would give him two hours from 11:00 o’clock to get defendant there, and the deputy sheriff testified that at 11:00 o’clock he announced, in a loud voice, that court had recessed' until 1:00 o’clock, and that the attorney was within ten feet of him when the announcement was made.

A deputy clerk testified that he heard that announcement and that any one in the courtroom could have heard it.

The District Judge dictated the following as his reasons for refusing to re-open the case:

“This case was. fixed for trial on the 2’2nd of April, and in the morning, after the completion of the roll call of attorneys and preliminary motions, the case was called for trial. The plaintiff announcing ready, the court notified counsel for defendant and inquired if counsel for defendant was ready, to which he replied he was not, and on inquiry as to why he was not ready, he promptly said his client was not in court. The. court told him he would give him fifteen minutes to get in touch with his client, and inquired of him where Attaway, the .defendant, lived; he replied that Mr. Attaway lived at Marthaville; and the clerk of the court was in the courtroom at the time and said that Mr. Attaway had moved from Marthaville and lived on the Scarborough & Carver place some distance out of the town of Natchitoches. I suggested to Judge Jones that he go down and see if he could get in touch with him, and in a few minutes he returned into court and said that he had put in a call for him at Powhattan. The court knew that he lived some distance from Powhattan and that a telephone call at that place would not be any benefit to him. The plaintiff and leading counsel for plaintiff being from Shreveport and were ready to try the case and insisted on a trial, the court said to Judge Jones that he would give him until 1:00 o’clock to get his client in court; that if he lived on the Scarborough & Carver place it was only six or seven miles out, and that there would be no trouble in getting him in court at 1:00 o’clock. I told the sheriff to announce that court would take recess until 1:00 o’clock. The sheriff did announce that court would be at recess until 1:00 o’clock. I then asked Judge Jones, counsel for defendant, to see Scriven Swett, the clerk, who had volunteered the information that the defendant lived on the Scarborough & Carver place, and ask him what he knew about it; he reported that the. defendant did live there and that he frequently saw him in town and knew that he did not live far from town, and I said there should be no trouble in getting your client by one o’clock. Judge Jones seemed to the court to be so indifferent about the matter that I went to Mr. Scarborough and inquired if he knew if he lived on his place, and he said he did, and on account of the indifference of Judge Jones about the matter and .the insistence of the plaintiff’s counsel for a trial, and the court suggested himself that a summons be issued for the defend.ant. I was in the sheriff’s office some time about 12:00 o’clock, and Mr. Weaver, the deputy sheriff, left with the summons. In the meantime, not more than 45 minutes, he returned and reported he was informed by the wife of the defendant that he had left home about 7:00 o’clock that morning to attend a case in court. At the hour of 1:00 o’clock I came upstairs. The plaintiffs and their attorneys were present. Neither Judge Jones nor the defendant were in court. I instructed Mr. Ford to ring the bell, which he did, and in a few minutes counsel for plaintiffs insisted that they were a long way from home and they desired that the case be called. I said to them that I would wait until 1:30. I noticed the time particularly, it was 1:40, when — In the meantime I had requested the sheriff to go to Judge Jones’ office and see if he could find him, and he reported he was not ip. his office. At 1:40 I notified counsel for plaintiffs that if they insisted, that they could proceed with the trial of the case. The pleadings were read, evidence was filed, and the court is sure H was not earlier than 2:00 o’clock when the case was completed. The court then went down stairs and was in the clerk’s office perhaps ten minutes, and then went out in town for a few minutes, and it could not have been earlier than 2:30 when the clerk and the court left the clerk’s office, before Judge Jones or his client had put in any appearance; they had not at that time. If the court felt that there was the slightest chance of this defendant not knowing his case was fixed for trial that day I would be glad to re-open it and give him the opportunity to be. heard; but the court is convinced beyond any shadow of doubt that this defendant did just what his people say he did, he left home that morning at 7:00 o’clock for the purpose of attending the trial. Why he did not attend it, is not necessary for the court to rule on. I am sure that he did not want to be present on that occasion; that he deliberately absented himself from the courthouse. I can’t understand how his counsel could have been mistaken about when the court was to reconvene in the afternoon. I stated to him, specially addressing him from the bench, that I will give you two hours to get your client. This over the protest of counsel for plaintiffs. Being convinced that an effort has been made to trifle with the court, it seems to be dangerously near contempt of court. That there is no reason why this case should be re-opened. Defendant has had every opportunity. He has, in my judgment, deliberately failed to avail himself of the opportunity to be heard. The court does not feel like he is entitled to have the case re-opened. For that reason the motion to re-open the case is overruled.”

An application for a new trial or to reopen a case, is addressed to the sound legal discretion of the trial court. When that discretion has not been abused, an appellate court should not interfere.

The trial judge in this case has not abused his discretion. On the contrary, we are convinced, as was the trial judge, that the defendant’s failure to appear in court was due to wilful negligence.

See authorities cited in Volume V, Louisiana Digest, “New Trial,” page 533.


text:
    No. 2526
    Second Circuit
    GERNER v. BRADFORD-HUTCHINSON LBR. CO., LTD.
    (May 22, 1928. Opinion and Decree.)

      (.Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 52 53.
    The burden of proof is on the plaintiff to make out his case.
    2. Louisiana Digest — Evidence—Par: 52, 53, 60.
    Where there is no evidence in the record that would form a basis on which to compute the alleged loss of crops of plaintiff, plaintiff has failed to make out his case.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of trial court on matters of fact, where clearly correct, is affirmed.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by Sidney Gerner against Bradford-Hutchison Lumber Company, Limited.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellant.
    Rusca and Cunningham, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

Plaintiff alleges that he owns a farm in Natchitoches parish through which the defendant’s tram or log road ran and that in the year 1924 the defendant, by operating a log loader on said tram, tore down and destroyed the cattle-guards or gates where said road entered his field, and that cattle and hogs got into his field and destroyed his cotton, corn and potatoes. He itemizes the damage as follows:

Value of cotton destroyed___________________$730.00
One hundred barrels of corn ___________ 125.00
One hundred and fifty bushels of potatoes ____________________________ 150.00

He also alleges that defendant’s employees permitted fire to destroy his timber to the extent of $250.00, but he has abandoned that claim.

Defendant denied any indebtedness to plaintiff, and alleged that whatever damage had been done to plaintiff’s crops by stock on account of the destruction of the cattle-guards by its log loader had been adjusted and paid.

The lower court found for defendant and dismissed plaintiff’s suit. He appealed.

OPINION.

Only questions of fact are involved, and we think the court’s finding for defendant was correct.

Plaintiff carried the burden of making out his case. He failed to discharge that burden.

Defendant’s tram road ran through plaintiff’s field and at three or four places where the road entered the field cattle-gaps or guards were built. These gaps were wide enough to accommodate an ordinary log car but not wide enough for a log loader. In carrying the log loader over the track the guards were torn down, and the evidence establishes that on account of the destruction of these guards, stock got into plaintiff’s field and did some damage to his crops. Garner, the plaintiff, made complaint' and defendant sent a man to look into the matter. He found that some damage had been done by the stock and offered to settle. The amount offered was not satisfactory to Garner. Whereupon it was agreed that two men should be selected, one by Garner and the other by defendant, to arbitrate and fix the amount of damage. The parties selected went to plaintiff’s field on July 5, 1924, and on investigation fixed the damage at $15.00. Defendant gave its check for the amount, which was accepted by Garner, although, he says, he thought at the time the. amount of the award was not sufficient, but he accepted it.

It is not disputed that the acceptance of this award cut plaintiff off from claiming any additional amount for damage occurring prior to the date of settlement, July 5, 1924, but plaintiff contends that later on, between July 20th and July 28th, 1924, his fence was again torn down by defendant and the stock got into his field and did further damage.

Arnold, the locomotive engineer, says the fence was torn down on or about June 20, 1924, and that the fence was not damaged after that. Frank Brown, the track foreman, says he took up the track through plaintiff’s field about June 27, 1924.

The testimony of these witnesses bears out defendant’s contention that whatever damage was done to plaintiff’s crops was done prior to July 5, 1924, when the settlement was made.

On the other hand, plaintiff called E. A. Powell, J. W. Ramsey and J. P. Barron, all of whom were asked to go to the plaintiff’s field and estimate the damage. Powell says he went on July 24th, and the other two say they went between July 20th and July 28th. They found that stock had depredated upon plaintiff’s crops, but they did not know when the fence was torn down nor when the stock first got into the field. It seems that there was cattle in the field when they were there but they could not say where they got in.

Plaintiff relies upon the testimony of these witnesses to show that the crops were damaged subsequent to the date on which the settlement was made.

There is testimony that after the fence was torn down first there was another entrance made into the field, but nothing to show that stock got in at that place.

Arnold and Brown are the only witnesses who were in position to state when the fence was torn down and they place the date prior to July 5th. Plaintiff says the fence was damaged by the loader, and it is shown to our satisfaction that the loader did not go through the field after June 20th. Stock got into the field and did some damage about that date, but that damage was paid.

Plaintiff objected to the introduction of any evidence except as to the quantum of damage, on the ground that defendant plead payment, which plea admitted the damage. Defendant did not, however, admit that any damage was done except that for which it had paid.

Plaintiff’s claim is for damage done subsequent to the settlement, and that claim was denied.

The court opened the door and let in all the evidence offered on both sides, and we have read and considered all of it, and our conclusion is that even if it be admitted that stock did get into plaintiff’s field after July 5th, when the settlement was made, plaintiff failed to make out his case.

It is not shown that the cattle which went into plaintiff’s field, at least after June 20th, went in through the cattle-gaps alleged to have been torn down by defendant. Plaintiff’s fence was old, down in places, and cattle and hogs could have gone into the field at almost any point and probably did so. One. of defendant’s witnesses was asked why stock did not go into the field prior to July if the fence was not sufficient to turn them, and he replied that it was a dry year, that the grass in the woods died and they then sought the fields for food.

In the second place, the testimony is so conflicting and unsatisfactory as to the question of damage done that the court is utterly unable to fix any amount. Some of the witnesses say that plaintiff did not cultivate his crops, and that under weather conditions that prevailed that season he would probably have made but little if any crop had the stock not bothered it. It did not rain in that section from June 2nd to August 7th and the crops “burned up,” especially where not properly cultivated. The majority of the witnesses thought plaintiff would have made something, but they could only guess as to the quantity of either cotton, corn or potatoes.

At the time the crops are alleged to have been destroyed, nothing had matured, there was nothing made. As to what would have been made that year, is a matter of speculation. No one can tell in July how much cotton an acre will produce. That depends on the land, the cultivation and the weather.

Plaintiff’s land is a fair average, for that section, but there is testimony that his crop was badly neglected. It did not rain there from June 2nd to August 7th and for that reason all crops were practically ruined. Under such conditions, it is impossible for the court to say what plaintiff would have realized from his crops.

Then, too, there is no testimony to show what additional labor and expense would have been necessary to finish cultivation, gathering and marketing the crops, if any had been produced.

The measure of damage for the destruction of growing crops is the value thereof at the time destroyed. We so held in the case of Williams vs. Windham, 3 La. App. 127, in which case we cited authorities supporting that view. In that case we held that plaintiff did establish the' value of his crops at the time they were destroyed by showing that they had advanced to a certain stage and that others in the same community did that year obtain certain results from crops of the same kind on land of the same character as plaintiff’s and similarly cultivated. The plaintiff in that case had completed cultivation, his corn was in silk and tossel, and his melons •were formed. Weather conditions were good through the season. Others similarly situated made good crops, from which we concluded that plaintiff’s crops had a certain value when destroyed.

But, in the case at bar, we are unable to fix any value. None of the witnesses attempted to do so. Some of the witnesses are farmers and got certain results that year. But it is not shown that their land was of the same nature and fertility. The dates on which their crops were planted are not shown, nor is it ' shown that plaintiff had cultivated his crop properly up to the time he alleges it was destroyed.

There is nothing to serve as a basis for judgment.

Judgment affirmed with costs.