author: Fenner, J. Levy, J.

text:
    No. 6714.
    Leon Godchaux vs. The Merchants’ Mutual Insurance Company of New Orleans.
    "Where a loss lias been adjusted between an Insurance Company and a policy holder, such adjustment is a new and independent agreement; and the action for the recovery of the adjusted loss is a suit, not upon the policy, but upon the new promise or contract. In such a suit, the Company cannot set up, in defense to the claim, breaches of warranties or stipulations in the original policy.
    The Company can escape the liability of the adjusted loss only in a clear case of fraud or error, in which the burden of proof lies upon them, and they must establish the charge with certainty.
    APPEAL from the Sixth District Court for the Parish of Orleans. Bightor, J.

      T. Gilmore & Sons, John K. New and F. Wooldridge, for Plaintiff and Appellee.

      F. II. Farrar, on the same side.

      W. S. Benedict, J. B. llornor, Albert Voorhies and T. U. Kennedy, for Defendant and Appellant.

      John A. Campbell, on application for rehearing, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

On May 15th, 1875, J. J. Martin took out a policy of insurance with the defendant Company, for the sum of $9,000, on sugar and molasses in a certain warehouse. On the 8th of June, 1875, the warehouse and contents wore destroyed by fire. Shortly thereafter, Martin made claim for the entire amount of the insurance, with preliminary proofs duly sworn to by him, in which he stated that, at the time of the fire, the warehouse contained, (besides molasses not belonging to him), 205 hhds of sugar, of which he was the owner of 124, and the remaining 81 belonged to P. N. Canton. The Company not being satisfied'with these proofs, it was agreed between itself and Martin, that each party should appoint two experts, who should make a survey of the premises and report thereon. It appears from a preliminary agreement signed by the experts, that the survey about to be held “ shall be binding on both parties, said survey being held to ascertain the possible contents of said premises.” The report itself, however, signed by all the experts, certifies as follows: “We find, according to the plan herewith submitted, that on the left-hand side of the shed there were 95 hhds. of sugar; we find that on the right-hand side of the shed there were * * * 11 hhds. and 12 hhds. of sugar, and in a space measuring 18& feet, we find the contents so much consumed that it is impossible to certify that there was anything there at all.” In the accompanying plan, the 95, 11 and 12 hhds. are duly credited to certain spaces, while over the 18-J feet space last referred to, is written the words: “ 35 hhds. claimed; no evidence of any such quantity.” The evidence satisfied us that this report meant what it says, that as to the 95, 11 and 12 hhds. it is not an estimate of possible contents, but a statement of amount of sugar actually in the warehouse, based upon the remnants of hhds. found in the debris of the fire.

Without further evidence upon this report of experts, showing instead of 205 hhds. sworn to by Martin, only 118 hhds., certain or extremely prob.able, and an additional 35 claimed and possible, after some debate and controversy between the parties, and distinctly as a compromise, an adjustment was agreed upon and was endorsed upon the policy as follows:

“ New Orleans, 15th June, 1875.
A partial loss on this, policy, amounting to $7,905.09, is hereby acknowledged and made payable to Mr. J. J. Martin, in sixty days after date. (Signed) P. Fourcht, President.”

We say that this adjustment was clearly a compromise, because it so appears from the evidence, and because Martin accepted less than the amount which he claimed and for which he was insured, and the Company allowed more than would have appeared to be due, according to the report of the experts.

Thereafter, Martin applied to plaintiff to discount the loss. Plaintiff, with due caution and to assure himself of safety in the transaction, called in person ujjon the president of the Company, and had an interview with him on the subject, and subsequently, plaintiff sent his clerk, Mr. Gauthier, who had another interview with the president. The accounts of these interviews, given by plaintiff and Gauthier, differ somewhat from that given by the president; but even from the statement of the latter alone, it appears the president gave very strong and positive assurances that he believed the adjustment to bo all right and that the money would certainly he paid at maturity, unless something should turn up to invalidate it, such as the discovery that Martin had himself burned the warehouse. Upon these assurances plaintiff discounted the loss at ten per cent, off the face, paid the amount in cash, and took an assignment, of which he immediately notified the Company in writing.

At maturity, defendant refused to pay, and plaintiff brings the present suit, setting forth in his petition the adjustment of the loss, the assurances. received by him from the president, his purchase made on the faith of such assurances, the assignment to Mm, and notice to the Company, and claiming judgment for the amount.

Defendant answers, denying generally, and averring specially, that the adjustment made is null and void, because “ obtained through fraudulent misrepresentations made in the preliminary proof submitted by Martin to them,” on June 11th, 1875, in which Martin swore “that the warehouse contained, at the time of the fire, 205 hhds. of sugar, of which 124 belonged to himself, and 81 belonged to P. N. Cantón;” that upon his said representations, “ the respondents made said adjustment;” that “subsequently, respondents ascertained that the total amount of the sugar contained in said warehouse, at the time of the fire, was only 52 hhds.” forty-nine of which belonged to P. N. Canton and three hhds. only to J. J. Martin; that by special stipulation in the policy, all fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on the Company; that by said fraudulent misrepresentations, the said policy has been vitiated, and is null and void.

It is perfectly apparent that the allegations of fact and legal conclusions drawn therefrom, on which the above special defense rests, are not sustained by the evidence and the law of this case.

1. It is manifestly untrue that the adjustment was made upon the faith of the representations made by Martin in his preliminary proofs. On the contrary, the report of the experts and the adjustment itself demonstrate that the latter was made with full knowledge or belief, on the part of the Company, that said proofs were false and presumably fraudulent, Martin had sworn to a loss of 124 hhds. valued by him at above $14,000. The report of the experts establishes a loss of not more than 77 hhds. of Martin’s sugar. The Company adjusts the loss at $7,905. How is it possible to contend that the adjustment was based upon the representations in the preliminary proofs? And how can it be claimed that the adjustment can he vitiated by a circumstance well known to the Company at the time it was made ?

2. The defense, in the terms in which it is set up, is evidently based upon a breach of one of the warranties of the policy ; and would only be appropriate as a defense to an action on the policy itself. But this is not an action on the policy; it is an action on the adjustment. The subject has been learnedly considered by the highest courts of Illinois and New York, and it is there settled that, where a loss has been adjusted between an Insurance Company and a policy bolder, such adjustment is a new and independent agreement; that the action for such adjusted loss is a suit, not upon the policy, but upon the new promise or contract, and may be prosecuted under tbe common count upon an account stated; and that the Company cannot set up in defense to such action, breadles of warranties or stipulations in the original policy. Farmers’ Ins. Co. vs. Chemut, 50 Ill. 112; Illinois Ins. Co. vs. Archdeacon, 82 id. 236; Smith vs. Glen’s Falls Ins. Co. 62 N. Y. 85.

We fully approve of the general doctrine of these cases (to which, however, there may be exceptions) and under its application to this case, the Company’s defense, so far as founded upon the provision of the policy vitiating it, in case of fraud or false swearing, falls to the ground.

Under the circumstances heretofore detailed, we think all consideration of false swearing in the preliminary proofs is equally eliminated from the case. There remains nothing hut the new and independent contract, partaking strongly, as we have shown, of the nature of a transaction or compromise, which must stand upon its own merits, and which must he enforced, unless the defendant can establish a clear defense of fraud or error. The burden of proof lies upon the defendant, and lie must establish it with clearness and certainty. Keogh vs. Forman, 33 A., not yet reported.

It is not sufficient to show that Martin claimed more than he was entitled to. That the defendant knew when it made the adjustment. It is not sufficient to show that Martin has failed to prove satisfactorily that he had sugar in the warehouse to the value of the amount adjusted. The adjustment dispensed plaintiff from any proof whatever oil that subject. In the language of the Illinois Supreme Court: “ The insurer and the insured, both being competent to contract, mutually adjusted the differences between them, agree upon a balance, which is endorsed upon the policy, and nothing further remains to be done by the insured under the policy, and nothing further is to be done on the part of the Company, except to pay over the balance which has been agreed upon and struck; * * after the adjustment, the rights of the parties became fixed. No affirmative act was required on the part of the insured to -protect their rights. The Insurance Company was indebted to them in a definite and fixed sum of money, which it was bound to pay.” 82 111. 236.

It is not sufficient to raise doubts, even strong and reasonable ones; as to whether Martin had sugar to the value of the adjustment. Defendant carries the burden of proof, and -must establish the fact by its evidence.

While it may be that, technically speaking, plaintiff only stands in the shoes of Martin, so far as his substantial rights are concerned, yet the circumstances under which he accepted the assignment, certainly entitle him equitably to claim a strict and rigid application of these legal principles, and free him from those adverse presumptions resulting from the inconsistencies of Martin’s testimony and from the disappearance of his books and the like, which might have had soine operation had Martin been himself the plaintiff.

Under these principles, it would be little less than rashness for even an advocate to assert, in view of the vast mass of uncertain, incomplete and contradictory evidence found in this record, that defendant has proved, with anything approaching legal certainty, that Martin did not have in the warehouse sugars belonging to himself equal in value' to the adjusted amount.

The defendant asserts in its answer, that “ subsequently to the adjustment, it ascertained that the total amount of the sugar contained in said warehouse, at the time of the fire, was only 52 hhds.,” of which only three belonged to J. J. Martin. This was certainly a bold assertion, in view of the report of the experts, and in view' of the fact that one of its own experts had unequivocally sworn, at a judicial inquest held before this suit was brought, that he had actually counted the remnants of about 95 hhds. in the debris of the fire.

The assertion rests alone upon the testimony of a single witness, a creditor of Martin, who connived at Martin’s claim, as long as he hoped to be paid out of the proceeds, and when that hope vanished, mischievously interfered and stirred up this litigation. His testimony is contradicted by a cloud of witnesses, and as inconsistent with every fact in the record.

It would be useless for us to analyze this evidence. So far as tin* direct evidence of parties who saw and estimated or counted the hhds. just before the fire, is concerned, the preponderance -is strongly in favor* of plaintiff, and opens a question of veracity of witnesses, which was solved in favor of plaintiff by the Judge a giio, who saw and heard them and had better opportunities of determining it than we can have.

So far as the indirect evidence touching" purchases and sales, removals and entries, goes, it is so confused, incomplete and contradictory, that opxrosing counsel present a variety of theories, about equally plausible, from which, on the one hand, it would follow that Martin had no sugar at all, and on the other, that he had even more than he claimed in his preliminary proof. In this sea of conjecture and uncertainty, our minds find no resting place except on the firm principle that the burden of proof rests on defendant, and that the judgment appealed from is not to be disturbed, except upon full conviction that it is erroneous.

Judgment affirmed at appellant’s cost.

Dissenting Opinion.

The opinion of the Court was delivered by

Levy, J.

The opinion and decree rendered by the majority of the Court in this case, does not meet with my concurrence, and I therefore respectfully dissent therefrom.

The defense is based upon an alleg-ed vitiation of the policy, growing out of fraud, false swearing and misrepresentations by the insurer, as to the loss sustained by Mm under the policy, the same being intentional and relating to material points.

Defendant urges, and I think properly, that an assignee of a policy, whether before or after an adjustment of loss, stands in no better position than his assignor, and that when the hooks of the assured become absolutely necessary in the course of an investigation, and are withheld or not produced by the assured, the Court will presume against the assured, unless a satisfactory explanation is given for their non-production. I do not think that in this case the explanation removes the suspicion of these books being purposely withheld, or, at least, most carelessly and indifferently kept.

Plaintiff contends, that defendant 'is estopped from setting up the forfeiture of the policy sued upon, by the adjustment of the loss thereunder, and because of the written and oral statements and representations made by its president to the plaintiff before the latter took an assignment thereof. Also, that when a debtor acknowledges that a debt about to be assigned is due, without any allegation of defense, he shall not be permitted to make a defense against the assignee; and this, -whether Ms silence proceed from ignorance or design; and where there is a statement of a single contingent ground of defense, the debtor is to be confined, as against the assignee, to the ground of defense stated, and cannot be permitted to urge any other. And, that a presumption of fraud cannot arise from a mere act, the effect of which was not and could not be injurious;

As stated, the defense is based upon an alleged vitiation of the policy, and error in the judgment, growing out of fraud, false swearing and misrepresentations by the insurer, as to the loss, as stipulated in the policy, the same being intentional and on material points.

Defendant urges, that an assignee of a policy, after an adjustment of loss, stands in no better position than his assignee.

I think the defendant was not estopped from pleading or availing himself of the defense, that the adjustment acknowledged was fraudulent, and therefore inoperative, and that he is not precluded by reason of his previous acknowledgment of the adjustment. This endorsement-in favor of Martin did not estop the Company from urging the forfeiture of the policy, on account of fraud and misrepresentation, a false swearing subsequently discovered, and I do not think that Martin’s transferree or assignee was in better condition in that regard than Martin himself.

“ When a claim has been adjusted and the amount of the loss agreed upon between the assured and insurers, or their agent, disputes may arise how far the adjustment is binding upon the insurers, before payment. This question has been the subject of numerous cases in marine insurance, in which it has been held, that the adjustment is nothing more than a promise to pay, which is only binding when founded on the consideration of a previous liability. ‘What,’ it is said, ‘ is an adjustment ? ’ ‘An admission, on the supposition of certain facts stated, that the assured are entitled to recover on the policy.’ An underwriter must make a strong case after admitting his liability, but until he has paid the money, he is at liberty to avail himself of any defense -which the facts or the law of the case will furnish,” Wood on Insurance, § 468,

■“ The fact that the loss has been adjusted by the insurers, does not necessarily entitle the assured to receive that amount. The adjustment of itself merely amounts to an admission, on the part of the insuree, that the sum fixed is due, if the insured is entitled to have anything under the policy, and does not estop the insured from setting up fraud upon the part of the assured, or a breach of any of the conditions of the policy, that operate to defeat any insurer’s liability.” Id,. § 456.

The policy and the adjustment thereon were not negotiable, and in view of the testimony, I cannot treat this endorsement as unconditionally binding the Company and cutting off its defenses; nor can its defense be confined to the single contingency contended for by plaintiff.

Indeed, I regard the mention of the contingency of tho assured setting iiro to the premises,” as being simx>ly an illustration, oías intimating one cause out of othors which would vitiate the policy, and which are set forth in the instrument itself on which the loss should be paid, and by which defendant’s responsibility was governed, and not binding him irrevocably, even if it should be afterwards discovered that the acknowledgment was induced by fraudulent representations.

This case, to my mind, is narrowed in its.consideration to the decision of the question, whether -or not there was on the part of Martin, the assured, in whose favor the adjustment was made, “fraud, or attempt at fraud, by false swearing or otherwise,” which if committed, under tho terms and stipulations of the policy, would cause a forfeiture of all olaims on the Company under said policy. Upon the solution of this question depends plaintiff’s claim and right of recovery.

The propriety, and even the necessity of-the insertion of stipulations, in plain words, the violation- of which operates-as a forfeiture of the policy, are in the interest of business and-'fair dealing, and intended as a protection to all parties interested, the insured as well as the insurer. .Perspicuous and unmistakable, they strike tho- attention and require observance under the clearly expressed penalty of forfeiture of any rights growing out of the policy or contract of insurance, Pure morals, commercial integrity, good faith and honest dealing, all inquire that in such matters, the terms of the agreement should be strictly complied with and all its requirements rigorously exacted. Truthfuln.ess. and good faith are of the essence of contracts of insurance.

To reach a proper and just conclusion, I -have-'given to the .voluminous transcript, much of which is taken up with the examinations and cross-examinations of an army of witnesses, a patient and careful, although tedious investigation.

It is a delicate task to analyze conflicting testimony and reach a just conclusion, where the statements of witnesses on the same points vary, and in some instances are entirely contradictory.

In this case the Record discloses that the sworn statement and affidavit of loss made by the insured, Martin, on lltli of June, 1875, do not truthfully set forth the quantity of sugar destroyed by fire, on the burnt premises. There Avere not 124 hogsheads of sugar in tho warehouse belonging to Martin at the time of Are. In the subsequent-statement made by Martin, he shows the total quantity of his sugar stored in tlie warehouse between the 15th of May and 8th June, both inclusive, to be 117 hogsheads and 20 barrels, from which deduct 34 hogsheads and 7 barrels, and there remained on the 8th of June, 83 hogsheads and 13 barrels, but Mr. Martin appends a note to this statement, as follows : Of the 83 hogsheads of sugar, 12 hogsheads were barrelled, making no change in my stock, except reducing the number of hogsheads to 71, and the difference, 12 hogsheads, being represented by ñfty-two barrels of brown sugar.”

The facts elicited in regard to the twelve hogsheads pledged to Mr. Matlié and withdrawn by Mr. Martin from the sugar shed some time after the 8th of June, show that Mr. Martin’s representations in regard to these twelve hogsheads being part of the sugar insured and consumed by lire, are not correct and truthful.

The testimony of P. R. Canton, before a Justice of the Peace, shows that between half-past one and two o’clock on the day of the 8th of June, he was at Mr. Martin’s warehouse, and that he then counted fifty-two hogsheads of sugar, all the hogsheads in the warehouse, of which Martin stated 49 hogsheads belonged to P. N. Canton, and the remaining three to himself, (Martin). Martin stated then, that the remainder of Canton’s sugar was in the sugar sheds, and that he would have it removed to the warehouse, and later in the day, at half-past five o’clock in the afternoon he told witness it had been thus removed. At that time there should have been 81 hogsheads of sugar in the warehouse belonging to Canton.

P. N. Canton also testified that Martin had in his hands 81 hogsheads of sugar belonging, to'him (Canton).

The testimony fails to satisfy me that there was hauled to the warehouse on the 8th of June, a quantity of sugar sufficient to make up the 81 hogsheads of Canton and the 83 hogsheads of Martin, which, in his last statement, Martin claims to have been in the warehouse. The witnesses on behalf of the plaintiff testify vaguely and indefinitely on that point and fail to convince me. The witness, Paul Lusey,' says that he thinks, about 3 o’clock in the afternoon of the 8th, there were about 100 hogsheads of sugar in the warehouse, but that he did not count it. The other witnesses for the plaintiff, so far as relates to the quantity of the sugar, are vague in their statements, and are mere estimates, without having made an actual count. The testimony of the clerk, Dussumier, and Francis Martin, is in direet conflict with that of Canton, and even if correct, conflicts with Martin’s own statement in his preliminary proofs of loss. Having definitely ascertained the exact quantity of sugar in the warehouse on the day when it was turned over by Fitz to Martin, and it being incumbent upon the assured to make proof of his loss with certainty, or at least with an approximation to certainty, it strikes rae that it was within the power of Martin to show, having on hand 79 hogsheads on the 15th of May, about which there seems to be no doubt, what additional sugars lie received, and what he sold or removed from the warehouse between the 15th of May and the 8th of June, and thus, with mathematical certainty, would have appeared the total quantity on hand, and to whom and in what proportions the total belonged. The representations and sworn statements of Martin are contradictory; thoy are not sustained by the facts, as elicited subsequent to the adjustment. Was there then such fraud, or attempt at fraud, by false swearing or otherwise,” as would cause a forfeiture of all claim under the policy?

The stipulations in this regard are precise, the reason therefore is sound, and strict compliance therewith, in all material points, essential to entitle the assured to avail himself of the benefits of the contract. Tho elements of the contract are good faith and strict truthfulness; tho observance whereof, in the very nature and character of the contract is material. It matters not whether the misrepresentations and 'false statements and affidavits were calculated to impose greater or less loss on the insurer, or to enure to the advantage or disadvantage of the assured, if made knowingly and with fraudulent intent, they operate, of themselves, as a forfeiture of the claim of the assured. All the facts and circumstances developed on the trial of this case in the lower court, as disclosed in the record, lead me to the conviction, that intentional misrepresentation and fraudulent designs were practiced by the assured, in the manner alleged by the defendant, and thus vitiated the policy of insurance, and the adjustment itself basod thereon, and plaintiff, as assignee hasno better rights as to recovery than hisassignor, the assured. Plaintiff relies very earnestly upon the endorsement of Mr. Fourchy, as binding the Company, and as constituting a strong if not controlling reason for his purchase of the claim from Martin. With such contradictory statements in regard to tho conversations had between Mr. Godchaux and his clerk, on the one hand, and Mr. Fourchy, the president, and the secretary of the Insurance Company, ou the other, with no impeachment or attempt at impeachment of the credibility of any of tliese witnesses, in order to arrive at a proper decision thereon, and to give weight to the one or the other, it is proper and. reasonable to consider all the circumstances attendant upon the transaction. Tt strikes me as strange and inconsistent, that in view of the reliance which the plaintiff contends he placed upon the statement of Mr. Fourchy, the faith which heroposed upon his alleged representations, and the controlling influence which they exercised upon him, and which led him, in view of his understanding of, and confidence in tho alleged assurances, to make a large investment of his moneys in this claim, lie should discount what he considered a valid claim against a corporation of undoubted solvency and high financial standing, having only about sixty days to run, before, as ho believed, it would be paid in full, at the enormous discount of about 56 per cent, per annum. This, to say the least of it, may, without any satisfactory explanation, be regarded as inconsistent with plaintiff’s declaration in his testimony : I discounted the policy and took all the pains to see that it was good, be sure that it was good.’’

But, even if Mr. Godehaux’s and Mr. Gauthier’s recollection is correct, and Mr. Fourchy’s is at fault, had Mr. Fourchy the right to bind the Company 1 To admit the right of the president to bind a corporation, without authority from the corporation itself, or its directory to whom, under its charter, such authority, with the right to delegate, is given, is a dangerous doctrine. To recognize this right in an agent or ministerial officer of a corporation, would be to place its stockholders and their capital at the mercy of an individual, who, without warrant or special authority, might, by a stroke of his pen, involve it in ruin. There is no proof to show that Mr. Fourchy was clothed with such authority, and it is not to be presumed. Greenleaf on Evidence, vol. i.; Paley on Evidence, Ch. 3, part 2; Parsons on Shipping, vol. i.; 17 Mass. 1; Green’s Brices Ultra Vires, p, 390,

I do not think that the acceptance by Mr. Fourchy of the adjustment, even if he had the authority to do so, was conclusive, and operated as an estoppel on the Company, but do think it -would be inoperative, if given in error and fraud, and would fall, if these or either were established. See Arnold on Insurance, 996, 999,1003 ; 9 A. 590; Phillips on Evidence, Ed. 1867, $§ 1815, 1816, 1817. I think that fraudulent and false statements were made by the assured, which induced the acknowledgment of the adjustment, and it, therefore, does not bind the company and cannot be treated as an estoppel.

Parsons on Contract, Vol. 2, p. 556, 6th Ed., says; - “Adjustments * * * may be avoided by a party defrauded, if they were made fraudulently, nor are they ¿nfbrced if founded upon a material misrepresentation or concealment, or a material mistake of fact, or, we think, of law. But the distinction of the common law between these two mistakes is still so far applied, that if money be actually paid under an adjustment, it may be recovered back, if paid through a mistake of fact, but not if paid through a mistake of law.”

In 9 A. 590, the Supreme Court held : “ A policy of insurance and the adjustments thereon, even if subscribed by the plaintiff to be right, is not negotiable, and if it is assigned, the assignee takes it subject to all equitable defenses against the assured. An adjustment signed by the insurance in ignorance of fraud, practiced by the assured, which would avoid the policy, must be set aside.”

Por these reasons, I feel constrained to dissentfrom my brethren constituting the majority of the Court.

Rehearing refused.

Justices Todd and Levy dissent, considering that a rehearing should be granted.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 7459.

    Stanislas Plassan vs. The Louisiana Lottery Company.
    In a suit for damages for malicious prosecution, the presumption of want of probable cause following from the acquittal or discharge on preliminary examination, of ihe accused, can bo successfully rebutted by evidence showing that the party provoking the prosecution acted on information reasonably calculated to cause and lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion of the guilt of tho party accused.
    In such a- case, a corporation will be exonerated from damages for a charge or accusation made by one of its authorized officers.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      H. W. Hwntmgton and H. L. Dufour, for Plaintiff and Appellee :
    1. Malice and want of probable cause must concur to entitle plaintiff to recover; but malice need not be proved affirmatively; it may be inferred from want of probable cause. 9 E. 487, 318 ; 9 A. 219.
    2. The discharge of plaintiff by the examining magistrate, is presumptive evidence of want of probable cause. 2 Gr. on Ev. See. 455; 24 A. 330:
    3. Probable cause is such a state of facts as would lead a careful and conscientious man to believe the plaintiff was guilty. Gr. on Ev. Sec. 454, notes and cases; 2 Addison on Torts, p. 729.
    4. The principal is liable for the acts of his agent when done in the course of his employment, and for tbe principal's benefit, even though he has given no special instructions to do them. 2 Gr. on Ev. Sec. 449; 1 Addison on Torts, pp. 31-2.
    5. Where express malice is proved, slight evidence of want of probable cause is required, '-i Eob. 17; 9E. 387; 5 A. 714.
    6. Character, reputation, mental anguish and public disgrace of plaintiff, are elements to be considered in the estimation of damages 29 A. 172; Sedgwick on Damages, pp. 35, et seq.\ 2 Gr. on Ev. Sec. 267; Id. 456.
    7. Where the injury was wilful or malicious, exemplary and vindictive damages will be allowed. 2 Addison-on Torts, pp. 1192, et seq2 How. 210; Eield on Damages, p. 540.
    8. Common law authorities are applicable in tbis State in suits for malicious prosecution. 8 A. 11.
    9. Under the general issue no evidence will be received except in mitigation of damages. There must be judgment for plaintiff in this suit under the pleadiDgs. 5 E. 329.

      Phos. J. Semmes and Jos. P. Hornor, for Defendant and Appellant:
    Corporations are not to he punished for the negligence or carelessness of their agents, as a crime. 11 A. 294.

      An employer is not liable for the acts of bis servant which are not done in the discharge of his duties, for which such servant was employed. 13 An. 445; C. C. 2320.
    The principal is not liable for exemplary damages for the gross negligence or wilful wrongs of his agent or servant, unless lie lias consented to, or authorized, or ratified the servant’s acts. Pield on Damages, pp. 92, 100.
    In an action for d images for malicious prosecution, plaintiff must prove that defendant was the prosecutor, or instigated the proceeding. 24 Howard, 544.
   The opinion of the Court was delivered by

Poché, J.

The defendant, corporation has taken this appeal from a judgment allowing damages against it in favor of plaintiff for having maliciously caused his arrest under a criminal prosecution, instituted by one of the Company’s agents, and from which arrest plaintiff was discharged by the Becorder or Judge before whom the charge had been made.

The litigation grows out of the following facts, as disclosed by the Beeord :

In order to protect the defendant by the enforcement of Act No. 9 of 1874, making it a penal offense for any one to sell, barter or exchange, in New Orleans, any unlicensed lottery tickets, the Mayor of New Orleans, in November, 1877, commissioned one G-. I. Schrieber, as a special officer for and at the pay of the Lottery Company.

This officer, having received information some time in May, 1878, that the plaintiff, Plassan, was selling Havana lottery tickets, and desiring to ascertain the fact, sent one Frisbee to plaintiff’s office, with instructions to buy from him a Havana lottery ticket, and that said Frisbee, on return, stated that he had bought such a ticket from plaintiff, and delivered the same to the. officer, who, thereupon, and on such information, made the affidavit under which plaintiff was arrested and brought before the Becorder, who released Mm on an appearance bond.

Three days afterwards, he was examined by the Becorder, before whom Frisbee appeared as a witness and identified the plaintiff as the person who had sold him the lottery tickets, hereinabove referred to, After hearing witnesses on behalf of the accused, the Becorder, entertaining a doubt as to the guilt of the accused, gave him the benefit of that doubt and discharged him from the prosecution, which then and thus terminated, whereupon plaintiff brought this suit for ten thousand dollars, as damages for a malicious prosecution. For answer, the defendant filed a general denial.

The dominant questions presented under the pleadings and the evidence are:

1. Did the defendant, corporation prosecute or instigate the prosecution ?

2. Was such prosecution malicious and without probable cause ?

3. Has it caused any damages to plaintiff f

1-Iis counsel admit that his right of recovery depends upon positive and affirmative proof of each of these propositions, and they contend that such proof is to bo found in the record.

Wo are not clear that the evidence shows conclusively that the defendant corporation did instigate this prosecution, of which its officers Were ignorant until after the discharge of plaintiff, and that the act of Schrieber was, beyond a doubt, within the scope of his employment by the Lottery Company.

But, under the conclusion which is forced upon us by the evidence on another point, on which we shall rest our decision, we find it unnecessary to settle this doubtful issue.

For admitting, for the salce of argument, that the act of Schrieber in the premises was that of his principal, the defendant, and, therefore, that the Company did instigate the prosecution, we are satisfied from the evidence, tested under-the light of our jurisprudence, and of the authorities quoted by plaintiff himself, that the charge was not made maliciously or without probable cause.

Admitting with plaintiff, as laid down by Greenleaf, vol. ii. par. 455, “that the discharge of the plaintiff by the committing magistrate is jpri»i«/rtcie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary,” we find in the record abundant evidence to exclude malice from the defendant, and to show probable cause for the charge brought against the plaintiff under the provisions of Act No. 9 of 1874, for the enforcement of which Schrieber had been specially appointed by the city authorities.

Having received information inculpating plaintiff, he did not act hastily and prefer the charge on this rumor or reputation, but he instituted special and direct inquiry, and on the positive information thus received through Frisbec, who produced the ticket which he claimed to have purchased from plaintiff, he then made the affidavit which culminated in the arrest of plaintiff. His precaution in thus acting, coupled .with the fact that plaintiff was an utter stranger to him, excludes any and all elements of malice in his mind, and the information which ho received was such as “ to cause and lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion ” that plaintiff was actually engaged in selling unlicensed lottery tickets, in direct contravention of the law which it was his duty to enfoi ee. Greenleaf, vol. ii. par. 454.

We see from the testimony of the committing magistrate that such was the impression made on his mind hy the evidence in the preliminary examination, and that the discharge of the accused was due to a mere doubt as to 1ns guilt in the mind of the Judge.

Plaintiff contends that Frisbee, being unworthy of belief, his statement should not have been taken by Schrieber, and cannot be held as the. basis of a probable canse for the charge brought by him against plaintiff.

Tiie evidence in the record fails to satisfy us that Frisbee was proven to be a notoriously bad character, or unworthy of belief, and a fortiori to show that such alleged unwortliiness was known to Schrieber at the time that he received from Frisbee the information which prompted him to institute the prosecution.

Believing, as we do, that the evidence in the case is amply sufficient to rebut the presumption of want of probable cause resulting from the discharge of plaintiff by the committing magistrate, we conclude that plaintiff has failed to make out a case of malicious prosecution against the defendant, and that the judgment appealed from is therefore erroneous. Godfrey vs. Soniat, 33 A. 915.

It is therefore ordered, that the judgment of the lower court be annulled, avoided and reversed, audit is ordered, adjudged and decreed, that plaintiff’s demand be rejected and his action dismissed at his costs in both Courts.

Rehearing refused.


author: Poché, J,

text:
    No. 7453.
    Emile Tanneret vs. The Merchants’ Mutual Insurance Company.
    Tliia ia a suit on a policy of insurance, for the destruction of the insured building. The policy contained a clause under which the insurer was not responsible for losses occasioned by explosion. And the defense was that the losses wore due to that cause. By the explosion of the sugar house boilers, the building caught fire, which fire was apparently extinguished, but it broke out a second, and a third time, within forty eight hours after the explosiou.

      Held, that the existence of a fire as an effect of the explosion must be presumed to have continued as such an effect, unless the contrary be proven, and the insurer was released from liability for the destruction of the building.
    APPEAL from tlie Fifth District Court for the Parish of Orleans. Moyers, J.

      Henry Den is and Hiller, Finney di Hiller, for Plaintiff and Appellee,

      Albert Vborhics and Thos. JSemmes, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J,

Under the decree of our immediate predecessors, remanding this case, our inquiry must he restricted to an adjudication, “ as to the cause of what is termed the last fire,” which finally and completely destroyed the insured sugar house, one-third part of which had already been destroyed by fire, caused by the explosion which occurred on Friday morning, November 29th.

Wo must first dispose of some doubts suggested by the District Judge, and by plaintiff's counsel, as to the true import and effect of the opinion of our predecessors, and of their decree in remanding the cause.

It lias been intimated that the Supremo Court did not reverse its previous decree, or intend to annul and set aside the judgment, of the lower court then on appeal.

A careful reading of the opinion and decree on rehearing, dispels all doubts on both of those propositions. True, the 2>revions decree of the Court, and the judgment then on appeal are not reversed in so many words, hut the intention of tho Court to reverso both is manifest from the conclusions reached on rehearing, and by the decree rendered.

In the judgment ai>poalcd from, it had been adjudicated that the exiilosion was not the cause of either fire, or of the destruction of the building, and that judgment had been affirmed in the first decree of our 2>rcdecessors, who had therein found that the cx2)losion 'had not caused either the first, the second, or the third fire. In the remanding opinion, however, they concluded that the first two fires, as they are called, had been caused by the explosion, and they reserved their O2>inion as to the nature of tho third fire.

It is therefore clear that so much of the first o2>inion as decides that tho ex2>losion had not caused the first two fires, is reversed liy the subsequent opinion, which holds that it had, and that the other 2>art of the first opinion which announces that the third fire wasnot traceable to the explosion, is reversed by the subsequent deorec, reserving- an expression of, or giving no opinion on this identical 2>oint.

It is, therefore, an irresistible conclusion, that tho 2>revious decree of the Court was reversed by the latter, and that the judgment, of the lower court shared the fate of the 2>revious decree 2>roviously rendered in affirmance thereof.

Under the foregoing ex2>lanation, the status of the case, when it reached the District Court, was on an adjudication attributing the origin of the first two fires to the explosion, and directing the lower court to investigate and to ascertain the cause of the so-called third fire, and to that end, to receive and to consider additional evidence, if offered by both parties.

The ease now comes on appeal from a judgment in favor of plaintiff, for the Ml amount‘of his claim.

Considering the grave doubts left on the minds of our predecessors, after mature consideration of the issues involved, and of the evidence adduced in the controversy, we have bestowed more than usual labor on, and very serious attention to the evidence found in the very voluminous record in the case.

The evidence shows that the sugar house was a two-story building, 204 feet long, 42 feet wide, and 24 feet high, that the lower story was divided in two compartments by a partition wall, making one compartment, known as the purgery or cisterns, 171 feet in length, and a second compartment, 93 feet in length, which contained the juice boxes, in which tlic juice flowed through pipes from the mill, and from which it was pumped up as needed into the clarifiers, and that the latter, together with the mill and engine, the evaporators, the doctor engine, the strike-pan and the coolers, were all situated in the upper story, which was not divided Inj a partition wall, hut was a single and undivided compartment. The coolers, a portion of the evaporators, and the strike-pan, were in that part of the tipper story which was immediately above the purgery, and the other apparatus above described in the other portion, usually designated by the witnesses as the “ engine room.” Unlike other sugar houses, in which the juice is boiled or cooked in kettles, heated by a furnace with a large and intense fire, this sugar house contained a steam strain, or large pans, in which the juice was cooked l>y means of steam pipes, connected with boilers, four in number, situated outside of the main building, opposite to, and six feet from that part of the building known as the “ engine room.” Those boilers, which furnished steam for the engine, as well as for the boiling apparatus, and for other purposes, are the boilers which exploded on' Friday morning at about four o'clock.

As shown by tlie evidence, and as found by our predecessors, tills explosion was terrific and very disastrous; it killed two men and wounded others ; it demolished a part of the. sugar house, and set fire to the engine-room, where the fire was subdued, hut not extinguished, for it again broke out in the same part of the building, during the ensuing night at about .1.1-3, o’clock, and consumed all that part of the building up to within ten feet of the purgery.

To this extent, the continuity of the fire caused by the explosion is judicially ascertained, and the question now remaining for solution is whether the destruction of the remainder of the building was by a continuous fire, as thus originatiug, or whether the conflagration can he traced to another or intervening cause.

In our consideration of this point, we shall adopt and he guided by the rule laid down by Greenleaf, and by many other authorities which we have examined in this connection, and which was fully recognized by our learned predecessors in this case.

Under this rule, it ivas incumbent on plaintiff to rehut the presumption in favor of the continuity of the fire, and this he has failed to accomplish.

He relies upon the testimony of Glynn, the owner of the plantation, Villeré, his overseer, Lappington, his engineer, Grant, Ms assistant engineer, Wilson, his brother-in-law, Foreman and Porter, laborers on the place, who all testify that on Friday night after the destruction of one-third of the sugar house, the fire had been completely extinguished, and put out, and that there was no fire on Saturday, or on that night, until the next morning, within a short time before the final and destructive conflagration.

But Villeré, Lappington, Grant and Porter, all admit that during that same time, a window frame on the gable end of the building was continually on fire, and that it was too high to be reached by buckets with water.

It is also to be noted that all these witnesses testified with equal assurance that all fire had been completely put out after the first fire of Friday morning, notwithstanding which declarations, it has been judicially settled that the second fire, so called, was the same as, or a continuity of, the first fire.

We must conclude, as our predecessors had evidently done, that in testifying that thejftre had been put out, these witnesses meant that the conflagration had been subdued, checked, or put out, and that as far as their senses could assist them, the fire appeared to have ceased, and to liave disappeared, and hence their statements as to the fvre having been entirely put out, after the first conflagration, as well as after the secoud, were mere opinions — entitled to very little weight, when made by witnesses who have not been introduced as experts, but merely for the purpose of testifying on facts.

But, even as opinions, these statements are contradicted by the testimony of Glynn, who informs us that during all day Saturday he had guards who poured water on fire whenever they scnv any, and who relates that at lli o’clock,-in the night of Saturday, he had been warned in his sick bed of the existence of fire under the mill, that he had gone to the sugar house with men, and had caused water to be poured on it.

When pressed to explain the cause of the last fire, several of these witnesses charge it to the act of an incendiary, and base that opinion on the fact that the sugar house, being constantly guarded, the fire could not have made the rapid progress with which it devoured the building, without being discovered at its beginning. This theory is also adopted by plaintiff’s counsel, who submit it to our consideration. But it is not satisfactory to our minds. If the vigilant guard, which they claim had been constantly on the alert, so as to detect any or the first appearance of a fire, liad done its duty, tlie same vigilance would have frustrated the design of an incendiary.

If, on the other hand, the watchman had been careless enough to allow to an incendiary the chance and the time to set this building on fire near the place where Lappington and Grant were in bed, the same negligence would have escaped the bursting of a fire from the charred ruins of the engine room, which, under the effect of a strong wind blowing in the direction of the purgery, soon became a blaze beyond human power.

The truth is, that the guard was not vigilant, for Porter, who was placed on watch after midnight, admits that he absented himself from the premises, and was absent when the fire broke out, and that on his return he found the sugar house in full blaze.

We are borne out in our conclusion upon this point by the testimony of Blouin, a disinterested witness, who was on a business visit to Mr. Glynn, and who testifies that about 11 o’clock, on Saturday night, he saw fire in some timbers under the mill, with a strong wind blowing in the direction of the purgery, and that he saw no guard or watch in and around the building, of all of which facts he gave immediate information to Glynn.

We attach a great deal of importance to the testimony of this witness, which stands uncontradicted as to the main facts which it covers, and which goes a great way to show that the fire, called the third fire, was a continuation of the same fire which had been caused by, and is, in our opinion, fully traced to the explosion.

In considering the testimony of this witness, we omit to weigh any matter of opinion which he expresses, but restrict our consideration to the facts which he deposes, and which establish beyond a doubt, the existence, at 11 o’clock Saturday night, of fire in the ruins of the burned portion of the building, and the prevalence of a strong wind blowing in the direction of the remaining portion of the building. Hence, we find the testimony strengthening, instead of rebutting the presumption in favor of the continuity of the fire caused by the explosion.

After a thorough examination of all the evidence in the case, we find more circumstances showing the continuity of the fire after the second fire, than after the first, and we fail to discover any evidence supporting a rational conclusion that a new cause had intervened between the accomplished fact and the cause alleged by defendant. Insurance Company vs. Tweed, 7 Wallace, 52.

As it appears from the description which we have given of the sugar house, it contained a steam-train for the purpose of boiling the juice, instead of the old system of kettles, and hence that prolific source of sugar house fires must be eliminated as a possible cause of the fire in this case. •

A great deal of stress is laid by plaintiff on the statement made by the witness Lappingfcon, to the effect that the remaining portion of the building, or the purgery, and the portion ruined by the previous explosion and the preceding fires, were separated by a solid brick, wall. In this connection defendant introduced testimony- to show the existence of a door in the partition wall. While plaintiff strenuously denies the existence of such door, it is worthy of note that he, the former owner of that building which he himself had erected, did not offer his testimony or that of any other witness on this point, a true knowledge of which was so peculiarly under his control. We believe that such a door did exist, but it might have been closed, and hence, we attach no great importance to that part of the contention, for the reason that the evidence shows that the Avail in question extended only up to, but did not include the upper story of the sugar house, and that the roof of the building over the engine room had been completely destroyed by fire to within ten feet of purgery. Hence, it is apparent that the whole of the upper story Avas fully open at the end towards the engine room, wliich Avas in ruins, and Avhich is shoAvn to have been continuously under a smouldering fire.

None of the witnesses have been able to show the exact spot of the purgery Avhere the last fire caught. Laqjpington and Grant were asleep, and Avere awakened by the smoko, Villeré and Glynn Avere at their respective houses, Porter, the guard, had gone to a house Avhere lay the bodies of two victims of the explosion, and all five testify that when they reached the spot, so as to obtain an accurate aúcav of the state of things, the fireAvasabig blaze and beyond control. Porter, however, who first reached the place, states that the beginning Avas in the roof, near the partition between the two compartments.

If the necessities of the case requii’ed it, a clear demonstration could be reached under the evidence, to sIioav that the fire proved to exist under the mins of the engine room had been kindled by the violent AAÚnd then blowing, and had thereby been communicated to the rafters-of the purgery part of the building.

We have gone further in the analysis of the testimony than was required under the rule of evidence, which imposes on plaintiff the burden to rebut the legal presumption in favor of the continuity of the fire which is sTioaati to have originated from the explosion. As it is, the effect of the evidence on our minds, is to convince us that had not the explosion occurred on Friday morning, the sugar house would not have been destroyed by fire on the Sunday morning following, or, in other words, that the explosion was the direct and proximate cause of the destruction of the building.

Hence, we conclude that under the terms of the policy, the defendant is not liable for the loss sustained by plaintiff, and that the j udgment appealed from should not be maintained.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court ho annulled, avoided and reversed; and it is further ordered, that there he judgment in favor of defendant, rejecting plaintiff’s demand, and dismissing Ms action at his costs in both courts.

Rehearing refused.

The Chief Justice, having-boon of counsel in a suit on the same facts against another Insurance Company, whom be represented, takes no part in tills opinion and decree.


author: Bermudez, C. J.

text:
    No. 8503.
    Baton Rouge Oil Works, Praying for Monition. On Opposition of James Dundas et al.
    It is legitimate for parties claiming to be owners in an opposition to an application for a Monition to homologate a tax sale, to attack not only the sale, but the title of the party from whom the property is claimed to have been acquired.
    Where property has not been so described on the assessment roll as to be susceptible of easy identification, and has been assessed in the name of the heirs of a living person, the forfeiture thereof to the State for taxes is a nullity and title cannot be made to it by the State.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      (J. J). Favrot and John if. Lennon, for Plaintiffs and Appellants :
    The party opposing a motion assumes the character of plaintiff in petitory action;- he must show title.
    The onus proba/ndi is on the party alleging that title has been divested to show divestiture. A tax deed of .property sold by tax collectors in 1881, authentic in foim, or made by authentic act, can alone be received in evidence under Sections 45 and 46 of Act 77 of 1880, and Section 2d of Act 107, 1830. The tax collector could not sell on the 9th day of March, property advertised to be sold on the 5fch March. The tax collector cannot sell property on which no taxes are due.
    A sale of property by the tax collector, as belonging to the heirs of J. J. Dundas, conveys no title when J. J. Dundas is alive. A sale of property as belonging to heirs of Dundas is not a sale of property belonging to the State
    A sale of property to the State of Louisiana by the tax collector in June, 1875, is a trespass and a nullity 30 An. 871; 32 An. 228.
    A sale of property by the tax collector to the State does not convey title until the sale has been confirmed by the Auditor. Section 9, Act 47 of 1873.
    A sale by the tax collector of property belonging to J. J. Dundas, heirs of Dundas, or owners unknown, is too vague to convey title. Such a sale shows want of notice to the owner.

      A sale made without a previous seizure hy tax collector, is void under Act 1873. The want of advertisement, three times within ten days, is fatal.
    The property of an American citizen cannot he forfeited to a State There is a higher law in the Constitution of the "United States Forfeitures under Acts of I860 and 1871; Act of 1§69, unconstitutional; Act of 1871. prospective, not retroactive.
    Assessments in incorporated towns should designate the name of street on which lot fronts, otherwise the assessment is defective. Two-thirds lot 5, square 2, Grass Town, is too vague, and not descriptive of the property assessed. The State cannot forfeit without office found. Act of 1873 does away with forfeiture. The clause in Act 210 of Constitution, relative to tender of puichase price, applies to sales for faxes le.vied since 1879, not to sales for delinquent taxes. The recourse of a party purchasing propci ty from tax collectors under Act 107 of 1880, in case of eviction, is against the State.

      Bead & Goodale, for Defendants and Appellees.
   The opinion of the Court was delivered hy

Bermudez, C. J.

The questions raised in this litigation involve tin-validity of the title asserted by the applicants for a monition to the real estate mentioned in their petition.

The applicants substantially aver, that on the 9th of March, 1881, at a tax sale made by virtue of law, they purchased two-thirds of lot No. Five, squareNo. One, of Grass Town, City ofBaton Kouge,” assessed as the property and in the name of the heirs of J. J. Dundas; that they paid $1,365 for it. They exhibit the deed issued to them and pray for a monition, and after due course, for the confirmation of the sale.

An opposition was filed to the petition by J. J. Dundas and G. W. Buckner, who, under different titles, claim to he the joint owners of the property described in their opposition, and which is the same as is-claimed hy the applicants, under the description contained in their petition. They attack the purchase averred hy the petitioners, on thirteen different grounds, which might be condensed into two generic ones, which it is superfluous now to mention.

The petitioners first filed exceptions to the right of action of the opponents; one on the ground of want of interest, saying that the title under which they claim had long since been legally divested, and another, on the ground that they could not attack the purchase title collaterally. They next pleaded the general issue, complaining of the vagueness of the allegations of ownership. Foreseeing the possibility of an adverse judgment, they claimed the return of the purchase price ($1,365) and the value of improvements put on the property ($250). They subsequently pleaded that opponents could not engraft a petitory action on their opposition, as á reconventional demand.

From a judgment dismissing their opposition, Dundas and Buckner have appealed.

The record does not disclose what disposition was made of the first exceptions. They were not pressed in this Court, either in the oral or printed argument. The appellees have asked no amendment of the judgment brought up for review. We will, therefore, not notice those exceptions further than to observe that the first belongs to the merits, and that the second is untenable, as tbe opposition is a provoked suit, which the opponents were bound to bring, under penalty of exposing themselves to the grave consequences of a judgment homologating the sale mentioned in the monition proceeding. They could not opiiose without showing an interest. They could not a.ver that interest without claiming title of ownership in themselves to the property.

.In relation to the third exception, which was filed after issue joiued, and which objects to' .the engrafting of a petitory action, as a reconventional demand, in a monition proceeding, we do not feel authorized to consider it, notwithstanding the averment of a consent for the filing of it, which it mentions, and an entry on the minutes, on the day of its filing, as in their brief, counsel for the petitioners admit that it was filed too late, even quoting authority to justify the correctness of the admission.

The litigants treat the opposition as a petitory action, which it no doubt is, hut it must he confessed that the issues are quite irregularly presented.

It is difficult to perceive distinctly on what precise grounds the applicants for the monition assert ownership of the property mentioned'in their petition. They say in that document, that they purchased it at a tax sale, as property assessed to the heirs of J.-J. Dundas, while in their answer to the opposition, they aver title from the State, through Bates, sheriff and tax collector. The answer is no doubt the better exponent of their claim.

Viewing the ease, and dealing with it as we would a petitory action, since the parties regard it in that light, we consider that the petitioners, whom we shall hereafter call defendants, as claiming title to the property, reconventionally, as derived from the State, at a sale made by the direction of the State, by a tax collector. We do so with the less hesitation, as it is .only upon the contingency, that the State had no title that the opponents, the real plaintiffs, can be heard to attack the adjudication relied upon by tbe defendants in the opposition.. In order, however, that these he permitted to recover, they should show not only title once in .the State, hut also a transfer by the State to them. We shall regard the defendants as claiming under an adjudication, not of the property of a delinquent taxpayer, but of the property of the State, acquired from an expropriated taxpayer.

The evidence shows, that J. J. Dundas acquired in 1855, for $6,000, the property described in the opposition, during the existence of the community between him and his wife, since deceased, leaving children. The latter sold their share to Buckner. So that, whatever may he the rights of Dundas and Buckner, inter se, they clearly represent the ownership of the property, and arc still such owners, unless the title was divested by the alleged forfeiture to the State.

In order to establish their title, the defendants offered to introduce the proees verbal of adjudication, or deed made to them by Bates, sheriff and tax collector, March 9, .1871. The objection made to the admission of this document, on account of informality, was overruled. The document was received and a hill was reserved, on which it is unnecessary to pass.

This proees verbal shows that, on the day of its date, Bates, sheriff and tax collector, claiming to act under authority of Act 107 of 1880, offered for sale the property therein described to pay the taxes, penalties, and charges due thereon for a series of years, from 1868 to 1880, both inclusive, aggregating $1,365, and that he adjudicated it for that sum to the Oil Company, who paid the amount. The proees verbal mentions the property as having been sold and forfeited to the State for the taxes due by the heirs of J. J. Dundas, as owners thereof, according to the assessment rolls for the years 1868 to Í880, inclusive, and gives of it the description which is found in the petition for a monition. To show that the property was forfeited to the State, the defendants offered and introduced in evidence, a deed dated July 16th, 1875, purporting to he a tax sale, or deed of forfeiture by Beauregard, tax collector, to the State. That document declares that the property mentioned in it, and which it takes nearly thirteen lines to describe, was seized for the payment of taxes due by J. J. Dundas, the heirs of J. J. Dundas, or owners unknown, as owner or owners thereof, according to the tableaux and assessment rolls for the years 1868 to 1874, both inclusive, at which sale there being no hid offered, by virtue of Act 47 of 1873, particularly of Section 9 thereof, the tax collector being- the. highest and last bidder, the property was adjudicated to him, for the State of Louisiana., for $348.25

Numerous extracts from recorded delinquent lists, for several years, were introduced to show that J. J. Dundas was not on those lists. Similar extracts for two other years were also produced, to show that the property was not returned as delinquent. A witness was heard to prove that the property was not placed on the assessment roll for certain years; that the taxes were paid for two years; that the rolls for certain years are not in the sheriff’s office, and that the property was assessed sometimes to J. J. Dundas, and at other times to the heirs of J. J. Dundas. There is also testimony showing that the $1,365 paid by the Oil Company was paid in part, in depreciated paper. The defendants offered extracts of lists for certain years, and their recordation for those years.

All these extracts describe the property as it is in the petition for a monition and in the beginning-of this opinion, and not at all as it is described in the act of purchase of Dundas, in 1865, or in the proses verbal of adjudication or deed of forfeiture by Beauregard, in 1875, which both contain an extended description, susceptible of being condensed for assessment purposes.

The record is absolutely silent as to tire fulfilment of any of the formalities prescribed by law prior to the alleged adjudication to the State, for the expropriation of property for the payment of taxes.

The variance between the description of the property as given in the assessment roll, and as found in' the Beauregard forfeiture deed, is most material and glaring. There was introduced no evidence to show that the property, as described in the deed, could have been identified with that on the roll, from which it does not in the least appear whether the two-thirds of the lot were to be taken from any particular portion of the square, the streets bounding which are not given. Neither the dimensions, nor the boundaries of .the lot are given. It was not made to appear that there exists any plan of Grass Town, to which reference might have been had, to identify the property. The existence of such a plan is not to be left to inference. The de'scription of urban property, required for assessment purposes, may be made by reference to the plan of the city, town or village, when there exists any, otherwise the property must be designated by the boundaries of the streets within which it is situated, giving in all cases the dimensions, and mentioning the name of the street on which it fronts. Acts of 1869, No. 114, Sec. 34, p. 154; Act of 1871, No. 42, Sec. 32, p. 122. The description should be on the face of the roll, as complete as reasonably possible, and such, that an adjudication of the property would be clearly translative of a title to the whole of. it. Doubt as to the correctness and fulness of the description must necessarily be fatal.

Neither is there any evidence showing fulfilment of the formalities for the expropriation. It does not apirear that there was made any demand for the payment of the taxes alleged to be due \ • that any notice of seizure was actually or constructively served ■, that any advertisement of the sale was published; that the forfeiture by the tax collector was ever confirmed by the State Auditor. Vide Act 47 of 1873, Section 9; 30 A. 871; Blackwell, Tax Sales, 534, 536.

When those exigencies of the law in these particulars have not been satisfied, an adjudication of the property does not expropriate. The ownership of the property continues to remain unconditionally in the delinquent tax payer. Blackwell, Tax Sales, pp. 66, 336, 121, 287, 114; 1 A. 20; 14 A. 709; 15 A. 15; 20 A. 560; 29 A. 416, 508, 112; 30 A. 871; 32 A. 228; 33 A. 525.

An appeal to Sections 76 of Act No. 114 of 1869, p. 161, and 68 of Act No. 42 of 1871, p. 122, cannot relieve the defendants. Those laws are to the effect, that the list of verification, when filed in the office of the Auditor, shall be entered by him in a record kept for that purpose, and shall vest, from the day of filing, a title to the lands and lots therein returned, to the State, which shall be impeachable only on pi'oof that taxes for the non-payment whereof the lands were returned forfeited had been, in fact, paid to the collector before the return of the list to the recorder.

Whatever the object and meaning of those laws be, and upon whomsoever the burden of proof may rest to justify or defeat a title said to have vested in the State, it is clear that in this case a forfeiture to the State cannot be held valid, unless the property said to have been forfeited was correctly assessed, by giving- its description by boundaries oi' measurement, and the names of its owner, or owners, when known.

The evidesice clearly establishes that the property was grossly misdescribed and likewise improperly assessed, by being put in the ríame of the heirs of a living person.

From whatever standpoint the matter may bo viewed, the forfeiture claimed cannot be recognized. The State having acquired no title, could transfer none. The adjudication or forfeiture by Beauregard, collector, being a nullity, the defendants could 3iot and did 3iot purchase. ISuMato fundamento, eadit opus.

This viow of the case l’elieves 3is from the necessity of passhig upon the validity of the adjudication by Bates, sheriff, and upon the ideas of prescription filed by tire defendants.

We will now proceed to consider the second branch of the case.

We are unable to allow presently the claim in reconventhui for the return of the purchase price and for the value of the improvements.

We recognize, however, the right of the defendants to be reimbursed the amount of the taxes paid, exclusive of the penalties, costs and charges, arid without interest. In the absence of evidence showing what proportion of that amount was satisfied in lawful mosioy, and which in depreciated paper asid the value thereof, and in default of proof of the fact of the putting up and value of the improvements, (if the defendants be entitled to recover the same) we can render no money judgment.

Our conclusions on these points are supported by the rulings in Stafford vs. Twitchell, 33 A. 525; and in Hopkins vs. Succession of Daunoy, lb. (not yet published) O. B. 55, Fol. 437, and authorities cited.

It is therefore ordered and decreed, that the judgment of the lower court be reversed, and proceeding to render such judgment as should have been rendered,

It is ordered, adjudged and decreed, that the opponents, J. J. Dundas and G. W. Buckner, be recognized as the owners of the property described in their opposition and claimed by the Baton Rouge Oil Works, under the description in their petition for' a monition, their claim thereto being rejected, and that they, the opponents, be put in possession thereof.

It is further ordered, adjudged and decreed, that the case be remanded to the lower court, for the trial of the claim of the Baton Rouge Oil Works, for the return of the amount paid for the taxes assessed on the property, exclusive of penalties, costs and charges of sale and interest, and for the value of the improvements, without any restriction as to the scope of inquiry and decision on the right of recovery for such cause, the case to be further proceeded with in accordance with the views herein expressed and otherwise, according to law.

It is further ordered, that the appellees pay costs in both Courts.


author: Levy, J.

text:
    No. 8378.
    The State of Louisiana vs. Joseph George.
    Though the indictment in this case is not in the exact words of the statute under which it is framed, viz: Section .911 of the Revised Statutes, (providing for the punishment of persons keeping gambling houses) yet the said indictment charges the offense in equivalent words and is valid.
    Article 172 of the Constitution of 1879 did not repeal said Section 911 of the Revised Statutes.
    The grand jury is. presumed in this case to have been regularly organized.
    While, perhaps, the ownership of the house in which the gambling was going on, was not essential to establish the guilt of the accused, proof of such ownership, even if surplusage, did not vitiate the proceedings.
    APPEAL from the Fourteenth Judicial District Court, Parish of Calcasieu. Bead, J.

      A. J. Kearney, District Attorney, for the State, Appellee.

      F. A. Gallangher, for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.


text:
    No. 8498.
    C. L. Walmsley & Co. vs. Hattie H. Morse.
    Payment of a note given as collateral secuiity of an open account, which extinguishes such account, cannot be imputed on mortgage notes of the debtor, given as secuiity for another account duo by him: where such imputation is made on the notes, it will not interrupt prescription on them. The creditor will he debarred in a suit on them by that defense.
    APPEAL from the Eleventh Judicial District Court, Parish of Natchitoches. Breda, Judge ad hoe.

      J. M. B. Tucker, for Plaintiffs and Appellants.

      Wm. B. Jaelc, for Defendant and Appellee:
    A contract of pledge is a secondary and purely auxiliary obligation, and its character, eifcct and duration is controlled by the principal obligation; accordingly, should the principal obligation be null — should it be conditional; should it he non-exigible or extinguished, so pari passu would the pledge be affected; perpetually adhering ns it does to the principal obligation, it cannot be detached, dissevered or diverted from it without destroying the contract itself. C. C. 3136-7-8.
    Until the debtor be divested from bis property be remains tbe proprietor of the pledge, which is in the hands of his creditor only as a deposit to secure his privilege ou it. O. C. 3166.
    The creditor cannot, in case of failure of payment, dispose of the pledge. O. C. 3165.
    One person cannot pledge the property of another (a fortiori he cannot alienate it) except it he with the express or tacit consent of the owner; hut this tacit consent must be inferred from circumstances so strong as to leave no doubt of the owner’s intention, as if he was present at the making of the contract, or if he himself delivered the creditor the tiling' pawned. 0. 0. 3145-8; 8 JR. 10; 11 A. 223; 28 A. 70; 29 A. 329.
    The transferor assignment of a debt or of an incorporeal right is in all respects assimilated to-a sale, and is so-treated and demonstrated by the Articles of the Code on the subject. O. C. 2615-2616 and 2457.
    The sale of a thing belonging to another is null, (C. C. 2427) and so equally is a giving in payment, which differs only from a sale in this, that delivery is of its essence and a thing is substituted for a price in money. C. G. 2625.
    The rule that prescription is suspended on the principal debt so long as the pledge continues, applies solely to- the principal or primary obligation, and has no application to collaterals constituting the thing pledged. 21 A. 128; 22 A. 107-117; 23 A. 199 and 294. So likewise a partial or entire payment of one collateral does not interrupt prescription on the other collaterals.
    The onus is on plaintiff to show interruption where prima fació it has accrued. 26 A. 245 ; 21 A. 295 i 20 A. 565.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

This is a suit on two mortgage notes of the defendant, each for two thousand dollars, with eight per cent, interest from the 16th of July 1874, till paid, subject to an alleged credit of three thousand dollars, which are said to have been paid thereon by her, on the 15th of August, 1876, together with attorney’s fees, and costs of suit.

The defenses are prescription, and that plan tiffs are not th abona fide owners of the notes, having acquired possession thereof after maturity, with knowledge, from Bullard & Campbell, to whom defendant had delivered them, to secure the payment of a sum of $782.89, which she owed them as a balance on an open account.

The first maturing note fell due on the first of March, 1875, the second on the first of March, 1876.

Tile petition in this suit was filed on June 22d, 1881. Citation was subsequently issued and was served on a curator ad hoe, appointed to represent the absent defendant.

After trial, there was judgment for the defendant and the plaintiffs appealed.

It is manifest that the suit was brought more than five years after the maturity of both notes, and that unless the plaintiffs have established an interruption, 26 A. 245; 21 A. 295; 20 A. 565, the plea of prescription is well founded, and the judgment sustaining it should be affirmed.

The plaintiffs claim, that on the 15th of August, 1876, the defendant has paid $3,000 on account of said notes, extinguishing themjpro tanto, and that defendant has thereby acknowledged her liability for tbe balance remaining.

The evidence establishes that the defendant had two separate accounts with Bullard & Campbell, her merchants, both beginning on August 14th, 1873, and running, tbe one to September 2d, 1874, closing with a balance of $782.S9 against her, tbe other running to July 30th, 1877, elosiug with a balance of $3,110.89 against her; that on September 2d, 1874, in order to secure the payment of the balance of $782.89 due on the first account, defendant delivered to Bullard & Campbell tbe notes sued on; that on tbe lltli October, 1875, in order to secure the payment of the balance of $3,110.89, due on the second account, she delivered to the same parties a mortgage note of $4,120, drawn by a third party, which was paid in full by taking $3,000 in payment, on the 15th of August, 1876, this amount being credited by Bullard & Campbell to the defendant on the second account, leaving a balance of $98.50 in her favor.

Prom this statement, it is quite clear that tbe credit of $3,000 made ■on the notes sued on, by Bullard & Campbell, while they still held them, was wholly unauthorized, and that prescription was not thereby interrupted. The payment was made on the second account, which it completely extinguished.

This suit is not for the payment of the balance of $782.89, to tbe debit of defendant, on the first account. It is an action to enforce payment of what is claimed to be due ou her two mortgage notes.

Had suit been brought by Bullard & Campbell, they could not have recovered on them against the defendant. The evidence shows, that Bullard & Campbell, who held them by a precarious title, at best as pledgees, parted with them in a business settlement, in favor of the plaintiffs, after their maturity, therefore subject to all the rights and equities between the defendant and them.

But, conceding arguendo that the plaintiffs purchased the notes before maturity, with the credit endorsed on them, on the 25th of August, 1876, in good faith, and for valuable consideration, they surely acquired no greater rights to them and to the mortgage than Bullard & Campbell themselves possessed quoad the plea of prescription. As in a suit by the latter, prescription could have been successfully opposed, so in an action by the former, who are the plaintiffs herein, the same defense must prevail.

The claim on the notes against the defendant has as effectually died away, as if the notes had been signed by another party, an utter stranger to the transaction.

This view of the case dispenses us from passing upon the other defenses set up by the defendant.

There is no error in the judgment appealed from.

It is affirmed with costs.

Mr. Justice Levy recuses himself.


text:
    No. 7495.
    E. Leon Levasseur vs. L. H. Gardner & Co.
    A suit for damages for an illegal attachment, brought on the bond, though the latter, under the law, was made payable to the Clerk of Court, and the plaintiff in the action for damages was only an intervenor in the attachment case, is a claim ex contractu and, therefore, not prescribed in one year.
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.

      Albert Voorldes, for Plaintiff and Appellant.

      Kennard, Howe & Prentiss, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.