text:
    No. 2558.
    Second Circuit
    JOHN R. FUQUA v. C. P. COUVILLION, as Sheriff, and SAMUEL MOREAU.
    (February 8, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Continuance—Par. 14. When a cause is called, the party, who has not been able to procure the necessary evidence shall be entitled to a continuance, on proving either that he has not sufficient time to get his proof, or has been prevented from doing so by some unforeseen cause.
    (Code of Practice, Art 464. Editor’s note.)
    Appeal from the Twelfth Judicial District Court of Louisiana, parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    This is a suit by which a resident of the State of California claimed to be the owner of an automobile under seizure by the Sheriff and brought this suit, an injunction, against the Sheriff and the seizing creditor, who had seized the automobile under a judgment against another person, believing him to be the owner. On the trial of the case plaintiff’s attorney asked for a continuance because it had been impossible to have a commission to take testimony issued and returned by that day. There was judgment dissolving the temporary restraining order and refusing a preliminary injunction. The court refused to grant a suspensive trial. Plaintiff applied for a mandamus directed to the trial judge for the purpose of commanding him to grant a suspensive appeal to plaintiff.
    Judgment reversed and case remanded, to be proceeded with according to law, giving plaintiff fifteen days in which to obtain his evidence.
    Bordelon and Norman of Marksville, attorney for plaintiff, appellee.
    J. W. Joffrion of Marksville, attorney for defendants, appellants.
    STATEMENT OF THE CASE.
    Mrs. Florence A. Zimmer recovered a judgment against Robert Laborde as principal and Samuel Moreau as surety in the District Court of Avoyelles Parish.
    Samuel Moreau paid the judgment and took a transfer of it from Mrs. Zimmer and had an execution issued upon it in virtue of which the defendant, C. P. Couvillion, as sheriff of the parish of Avoyelles, seized and advertised for sale as the property of Laborde the property in controversy, one 1924 model Studebaker touring automobile, engine number 187,958, license number 1,156,763.
    Thereupon, on October 17, 1925, the plaintiff, John E. Fuqua, brought this suit against the sheriff and the seizing creditor.
    He alleged that he was the owner of the automobile. That on June 19, 1925, in the state of California, he had sold the automobile to Robert Laborde for the sum of $800.00, of which $50.00 was paid in cash, and that the balance of $750.00 with interest thereon was to have been paid in fifteen equal installments, but that no part of such balance had been paid.
    He further alleged that it was stipulated between himself and Laborde at the time of the sale that the title to the automobile should not pass from him to Laborde, and that he, Fuqua, should continue to be the owner thereof until the balance of purchase price was fully paid, and that this stipulation was legal and valid under the laws of the state of California.
    He further alleged that inasmuch as Laborde had failed to pay the balance of the purchase price, the title to the automobile had never passed from him to Laborde, and he was still the owner of it.
   REYNOLDS, J.

He prayed that he might be decreed to be the owner of the automobile and that the sheriff and seizing creditor be perpetually enjoined from proceeding with the seizure and sale thereof.

He further prayed that a temporary restraining order issue restraining the defendants from selling the property and that they be required to show cause on a day to be fixed by the court why the temporary restraining order should not be extended until final judgment in the case.

On the same day the court granted a temporary restraining on the plaintiff’s giving bond in the sum of $250.00 and ordered the defendants to show cause on October 21, 1925, why this order should not remain in force until final judgment.

The plaintiff gave the bond and the temporary restraining order issued.

On October 20, 1925, the plaintiff, with leave of court, filed an amended petition, in which he set forthe that the allegation in his original petition that he had sold the automobile to Laborde on June 19, 1925, for $800.00, of which $50.00 was paid in cash and $750.00 was on a credit, was erroneous; that, in fact, the

“* * * said automobile was sold in the first instance to said Robert Laborde by Paul Hoffman Company, Incorporated, whose domicile is in thp city of Los Angeles, state of California, and that on June 16th, 1925, petitioner was sold transfered and assigned the contract of sale and interest therein by said company; that on said June 16th, 1925, petitioner entred into a contract with said Robert Laborde, and it being the same contract of sale which existed between the said Paul G. Hoffman Company, Incorporated, with the exception of the terms of payment, wherein and whereby the said contract between petitioner and Laborde, the said Laborde promised and bounded himself to pay petitioner the sum of $86'0.00 as the purchase price of said automobile, of which the sum of forty dollars has been paid petitioner, ¿and leaving a balance of $760.00 still due and owing petitioner on the said automobile; that otherwise the said Laborde’s contract of sale with the said Paul G. Hoffman Company, Inc., was' to remain the same and continue to be the contract between the said Laborde and petitioner.”

He further alleged that by reason of the fact that the Paul G. Hoffman Company, Incorporated, retained the title to the automobile until it should be paid for, that “by reason of the assignment to him by said company of its contract of sale with Laborde he became vested with the title to the automobile until the purchase price should be paid.

And he readopted the prayers of his original petition.

On the same day, October 20, 1925, the plaintiff filed, with leave of court, a second amended petition, in which he reiterates the allegations and prayer for his first amended petition.

The defendants answered the petition and denied that plaintiff was the owner of the automobile and that he had sold it to Laborde and that a balance of purchase price was owing on it, and alleged, in the alternative, that if plaintiff did sell Laborde the automobile and if any part of the purchase price remained unpaid, then that plaintiff had no other rights in the premises than a vendor’s privilege, which did not entitle him to prevent a sale of the automobile.

They denied that the laws of the state of California permit a vendor of a chattel on credit to retain title to the property until the purchase price is paid, and aver, in the alternative, that if such be the law of the state of California, they are modified when contracts under them are sought to be enforced in Louisiana so as not to permit injustice to be done to creditors of such a purchaser, and that in such a case the vendor with reservation of title in himself should be relegated for his security to the vendor’s privilege allowed him by the laws of the state of Louisiana.

They prayed that the preliminary restraining order granted be recalled and annulled and that the injunction prayed for be denied.

Defendants also filed a supplemental answer setting up that plaintiff’s amended petition alleged a different condition of things regarding his title to the automobile from that alleged in his original petition and that his rights to the restraining order must be determined by the condition of things set forth in his original petition and not those alleged in his amended petition.

They prayed that the temporary restraining order granted be recalled, the injunction prayed for denied and plaintiff’s petition dismissed.

Thereupon plaintiff filed a motion asking that the date of the hearing on the application to show cause be reset so as to allow him time in which to procure the necessary evidence to support the allegations of his petition.

The motion, which is verified by plaintiff’s attorneys, sets out that plaintiff is a non-resident of the state of Louisiana and a resident of Los Angeles, California, and was then actually in Los Angeles, California; that his testimony is material and necessary on the hearing, and that he could not safely go to trial without it; that it is necessary to take his testimony by commission; and that it is impossible to have a commission for the purpose issued and returned by the day set for the hearing on the order to show cause.

The court overruled the motion for continuance and also denied allowance of leave to file the first and second amended petitions, and to these rulings the plaintiff reserved exceptions.

The trial of tie case was thereupon proceeded with, and on October 23, 1925, judgment was rendered dissolving the temporary restraining order, and refusing a preliminary injunction.

Thereupon the plaintiff requested the court to grant him an appeal, both suspensive and devolutive, returnable to this court according to law, and to fix the amount of the bond and the -return date for the appeal.

The court refused to grant a suspensive appeal, stating that it could not find any authority to do so under Act 29 of 1924. It granted a devolutive appeal, returnable to this court on November 25, 1925, and fixed a bond at $50.00.

On November 12, 1925, plaintiff obtained from this court an alternative writ of mandamus directed to the trial judge directing him to show cause on November 1, 1925, why an order directing him to grant the plaintiff the suspensive appeal asked for should not be issued, and directed to the defendants, commanding them to proceed no further toward the sale of the automobile under the execution until the further order of this court.

This order to show cause was argued and submitted to this court on its return day, but no judgment has heretofore been rendered in that matter.

OPINION.

The question presented for decision in this case is, should plaintiff’s application for a continuance of the rule to show cause long enough to enable him to procure his evidence from California have been granted?

The application for continuance is supported by the affidavit of, Mr. Wade Norman, one of plaintiff’s attorneys, and sets forth that the plaintiff is a non-resident of the state of Louisiana and a resident of the state of California, and that he was at the time of the application actually in the city of Los Angeles in said last named state; that plaintiff’s evidence is material, essential and necessary to his case; that it was necessary to take plaintiff’s testimony under commission, and that it was his intention to do so, and that it was physically impossible to have a commission for this purpose issued, executed and returned between the date plaintiff’s suit was filed and the return day of the order to show cause why a preliminary injunction should not issue. That plaintiff expects to prove by his testimony that he sold the .automobile in question to Robert Laborde for the price of $800.00 in the state of California, of which amount $40.00 was paid in cash and the balance was to be paid at later date; that no part of said balance has been paid'; that at the time of the sale it was stipulated that the title to said automobile should not pass from plaintiff to said Laborde until the purchase price was fully paid; and that the laws of the state of California authorized such contracts.

Plaintiff’s suit was filed October 17, 1925, and the preliminary restraining order was granted the same day.

The rule to show cause why this restraining order should not be made permanent pendente lite was made returnable October 20, 1925.

The motion for a continuance was filed and overruled on October 20, 1925, and final judgment was rendered in the case on October 23, 1925.

We do not think that from October 17, 1925, to October 20, 1925, sufficient time for plaintiff to come in person from Los Angeles, California, to court, to give his testimony, or to have a commission issued to an officer in that city to take his testimony to be executed and returned.

Plaintiff could not anticipate the defenses set up by the seizing creditor in his answer to plaintiff’s petition in the case; and Article 464 of the Code of Practice prescribes that a party to a cause shall have reasonable opportunity to procure his evidence before being forced to trial.

We think that under the conditions disclosed by the record the motion for a continuance should have been granted and, the plaintiff not having had reasonable opportunity to present his evidence through no fault of his own, it follows that all proceedings had in the case subsequent to his application for a continuance are null and void.

This conclusion dispenses with the necessity of our proceeding to judgment on the application for writs of mandamus and prohibition.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, avoided and set aside, and the case is remanded to the District Court to be proceeded with according to law after giving to the plaintiff fifteen days time after the record in. the case shall have been returned to that court in which to obtain evidence in support of his application for a preliminary injunction.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2442.
    Second Circuit
    FRANK M. FRIEL v. HENRY D. MURCHISON, Administrator, Et Al.
    (February 8, 1926. Opinion and Decree.)
    (March 11, 1926. Rehearing Refused.)
    (May 4, 1926, Writs of Certiorari and Review Denied on Application of Both Appellant and Appellees.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Bills and Notes— Par. 217, 218.
    The execution of a note or a check raises the presumptions of a just and valid consideration, and when the debtor pleads want of such consideration the burden is upon him to establish that plea.
    2. Louisiana Digest—Bills and Notes— Par. 218.
    When the existence of the consideration is expressly put at issue and doubt or suspicion is cast upon its reality, the burden of proving the consideration is shifted to the payee.
    3. Louisiana Digest—Appeal—Par. 521.
    Where the plaintiff in a case erroneously thinks that the burden of proof was on the defendant failed to introduce evidence necessary to a proper decision, the case will be dismissed as a case of non-suit by the appellate court.
    Appeal from the Fourteenth Judicial District Court of Louisiana, parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    This is a suit for the collection of a check. The defense is the illegality of the consideration of the check.
    There was judgment for the plaintiff for the amount prayed for and the defendants appealed. Judgment reversed and one of non-suit entered.
    Hakenyos, Scott'and Provosty of Alexandria, attorneys for plaintiff, appellee.
    Hawthorn and Stafford of Alexandria, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit against the defendant's for $1,429.00. He alleges as a cause of action that he is the holder and owner in due course and for value and before maturity of a check for said amount dated April 17, 1924, made and signed by John M. Murchison, payable to plaintiff, and drawn on the Planters Bank at Cheneyville, Louisiana, which check was not paid on presentation.

It is alleged that John M. Murchison, who signed the check, is dead, and that the defendants are his heirs and legal representatives.

Defendants admit, in answer, that said check was signed and delivered to plaintiff by John M. Murchison; but their defense is that the check was given for a gambling debt, and is therefore without cause or consideration, and that defendants are not, for that reason, bound.

There was judgment in the District Court in favor of the plaintiff for the full amount sued for, and the defendants have appealed.

OPINION.

J. M. Murchison, the drawer of the check, died within five days after he had signed and delivered it to plaintiff. When it was presented for payment at the bank on which it was drawn payment was refused because the maker was dead. The defendants are the heirs and legal representatives of the maker, and it is admitted that if the check was given for a legal and valid consideration they are bound. But they defend the suit on the sole ground that the check was given for a gambling debt.

It is conceded, of course, that if the check was given for a gambling debt the plaintiff cannot recover.

In support of his case, the plaintiff offered in evidence the check sued on and testified that it was signed and delivered, to him by John M. Murchison, and that it was not paid when presented at the bank. He did not state what the nature of the transaction between him and the deceased, Murchison, which led up to the signing of the check, was.

Defendants, in answer, set out that plaintiff is a gambler, that he conducts gambling games in the city of Alexandria, Louisiana, and that the deceased was also a gambler and played in the games conducted by plaintiff in his place, and that the check had no valid consideration, but was given to cover Murchison’s losses in these gambling' games.

Counsel for defendants do not claim that they produced evidence establishing to a certainty that the consideration for the check was a gambling debt, but contend that the allegations of the answer and the proof which they submitted on the trial were such as to shift the burden to plaintiff, and that it Was his duty to make proof of a valid and legal consideration for the check.

The testimony shows that Prank M. Priel, the plaintiff, the payee of the check, lived at the Hotel Bentley in Alexandria, Louisiana; that he occupied room 503 of the hotel, where he sleeps; that he owns and operates a cigar and news stand in the lobby of the hotel.

It is also shown that he is the president of a chartered club known as the “Pleasure Club” or the “Hotel Bentley Club,” which operates and conducts gambling games, principally “stud poker.”

These games are played in room 503 of the Hotel Bentley, plaintiff’s private quarters. Plaintiff sometimes, but not always, plays in these poker games. The games are conducted and “banked” by a man named Ratcliff, who is a member of the board of directors of the club, and who is paid $15.00 per week by the club for his services. Some of the witnesses testified that they did not know it to be true, but that it was generally understood that it was Priel’s club. Priel testified that he was a member of the board of directors and president of the said club and that he played poker there at times, but said the games were conducted by Ratcliff and Campbell, the other directors, and this is not disputed by any of the Witnesses.

As already stated, Ratcliff testified that he operated and conducted the games for the club.

There is no testimony to show that Priel ever had any connection with the club except as a member of the board of directors and president thereof, and nothing to show that he had anything to do with the poker games conducted in his room except to participate therein as a player; but the fact that Priel is president of the club and that it is at his headquarters, in his private room, that the gambling is done, indicates that he is the moving spirit therein and at least responsible for what goes on in the club.

Defendants called and examined sixteen witnesses. Pour of these had played poker in this club, but only one of the four, W. H. Ratcliff, who conducts the games, had seen Murchison, the maker of the check, play therein. Ratcliff testified that he had known Murchison for five or six years, and had seen him play in only one game there, but he does not say when that was. He testified that he had seen him play at other places, but not more than three or four times during the time that he had known him.

Plaintiff testified that Murchison had played poker in his club, and he was asked how often, and he said:

“He played poker years ago, and then maybe a few times in the last twelve months or two years, but not often.”

The check is dated April 17, 1924, and Friel gave his testimony on March 16, 1925.

Friel’s testimony that Murchison had played a few times in the last twelve months or two years indicates that he had probably played there about the date of this check, although none of the witnesses say that he played on or about that date.

The testimony of all of the witnesses who played in the games conducted in Friel’s room is that the gambling games indulged in was that of “stud poker,” and that there was a chance of a player’s losing heavily therein, some of them having lost considerable sums. From their description of the games it is not improbable that Murchison or any other player could have lost the amount of this check at one sitting.

So far as the testimony shows, Friel had no business in Alexandria or elsewhere except the cigar and news stand in the lobby of the Hotel Bentley and this gambling club. It is therefore hard to conceive how Murchison could have become indebted to Friel in the amount of the check except through his connection with the gambling games. There is no suggestion nor intimation either in the pleadings of the testimony of any witness who was called to the stand that there was any business relation at any time prior to the signing of this check between the plaintiff and Murchison.. To say the least, it is highly probable, in view of the fact that there is nothing to indicate that Friel, the plaintiff, had ever had any business connection with Murchison, the maker of the check, and in view of the further fact that Murchison was a gambler and played in Friel’s gambling establishment, that the check was given for a gambling debt.

The execution of a note or a check raises the presumption of a just and valid consideration, and when the debtor pleads want of such consideration the burden is upon him to establish that plea.

. Pack vs. Chapman, 16 La. Ann. 367, and authorities there cited.

Irving vs. Edrington, 41 La. Ann. 671, 6 South. 177.

Gilbert vs. Siess, 40 La. Ann. 667, 4 South. 874.

But our courts long ago held that while that is true, yet when the existence of the consideration is expressly put at issue and doubt or suspicion is cast upon its reality, the burden of proving the consideration is shifted to the payee.

Martin vs. Donovan, 15 La. Ann. 41.

Wooton vs. Harrison, 9 La. Ann. 234.

Succession of Martin S. Coste, 43 La. Ann. 144 (156), 9 South. 62.

In Courtebray vs. Rils, 9 Rob. 511, the court held that the allegation in the answer

“* * * that the plaintiff’s claim is neither just nor well founded puts the justice of the claim at issue and indirectly denies the statements on which it is based, throwing on the plaintiff the burden of proving his allegations.”

Defendants, in answer, set up that the plaintiff is manager and proprietor of a gambling house in Alexandria; that prior to the death of Murchison he had frequented this gambling establishment and had indulged in gambling games therein; that Friel, the plaintiff, actually participated in these games.

The testimony adduced by defendants shows that plaintiff was proprietor of this gambling establishment, that he played therein, and that Murchison, the maker of the check, also gambled in this club. It also shows that plaintiff had no other business except the cigar and news stand.

These facts are admitted by plaintiff as witness in his own behalf.

The question naturally arises, if Murchison owed plaintiff $1,429.00, what was it for?

It is not probable that Murchison could have become indebted to plaintiff for goods sold him at the cigar stand. To say the least, the check was given out of the usual course of business.

All this causes doubt and suspicion to arise as to whether the check sued on was given for a valid and legal consideration.

We think and hold that under the circumstances of this case the burden was shifted back to plaintiff to prove the real consideration for which the check was given.

Plaintiff rested his case solely upon the legal presumption which flows from the issuance of the check. The consideration of the check was impugned on the answer of the defendants and in the testimony adduced by them. The legality of the consideration having been thus challenged and the testimony having cast suspicion on the transaction, it was plaintiff’s duty to speak and enlighten the court. Especially is this true in view of the fact that Murchison, the maker of the check, is dead and that plaintiff is the only one who is in possession of knowledge of the transaction. Under the circumstances plaintiff owed a duty to the court which he has not performed.

While we think the plaintiff has not made out his case, and that the judgment of the lower court must be reversed, yet we are not satisfied that it is proper to reject plaintiff’s demand outright; our conclusion is that a judgment of non-suit is proper.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that plaintiff’s suit be dismissed as in case of non-suit at his cost.


author: REYNOLDS, J.

text:
    No. 2338.
    Second Circuit.
    William M. McMullen v. LOUISIANA CENTRAL LUMBER COMPANY.
    (February 8, 1926. Opinion and Decree.)
    (March 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 154, 158.
    An inguinal hernia, the development of which is caused by over-exertion or a strain, is an “accidental injury” within the Workmen’s Compensation Act No. 20 of 1914, Section 2, Par. 1, and Section 38, Par. 1, as amended by Act 38 of 1918.
    Appeal from Eighth Judicial District Court of Louisiana, parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit for compensation under the Workmen’s Compensation Act No. 20 of 1914. There was judgment for plaintiff and defendant appealed. The case was remanded for the purpose .of admission of evidence on the question of plaintiff’s capacity to earn wages since the accident, but on defendant’s application the ease was remanded to the District Court ^or all purposes. A new trial was had and no additional evidence was introduced by defendant as to plaintiff’s capacity to earn wages since the accident, but plaintiff tendered himself as a witness.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    Huey P. Long of Shreveport, attorney for plaintiff, appellee.
    Thornton, Gist and Richie of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

In this case there was judgment in the District Court in favor of the plaintiff, and the „defendant appealed, and the judgment of the District Court was affirmed in so far as it held defendant liable to plaintiff for compensation in some amount and was remanded to the District Court solely for the purpose of the admission of evidence on the question of plaintiff’s capacity to earn wages since the accident to him, and on defendant’s application our judgment was modified so as to remand the case to the District Court for all purposes.

A new trial was had and no additional evidence was introduced by defendant as to plaintiff’s capacity to earn wages since the accident.

Plaintiff tendered himself as a witness and testified that he had not been able to earn any wages since he was injured. He admitted, however, that he and his wife and family had been operating a boarding house since the accident, but said that they had not been able to make expenses. His evidence shows, we think, that his Wife and children did the work and for all practical purposes operated the boarding house; because when his wife was sick for two months they had to close the boarding house.

On the new trial defendant devoted its efforts to attempting to show that hernia is a disease and hence not compensable under the workmen’s compensation act.

“Q. When a map has hernia in the course of development, regardless of whether or not he has any strain or lick on the abdomen, will it finally develop and the intestines finally protrude?
“A. It will finally descend, possibly into the sac, especially as age approaches.”

Page 17.

“Q. If a man was born in that condition, very likely wouldn’t it fully develop before he was sixty years of age?
“A. Not necessarily, no.
“Q. It would be a very rare case for him to grow to be sixty years, wouldn’t it?
“A. Very rare. Usually it would develop early in life.”

Page 18.

“Q. Do you think it likely that a man born in that condition would grow sixty years without ever having any pain from it, and without being examined by a doctor?
“A. If he has a hernia when he is born, he will never go sixty years without it being discovered, no.”

Doctor Peters testified, page 27:

“Q. Is manual labor conducive to development of an acquired hernia?
“A. I think so. Any -strain or lifting or any setting up exercise. The existence of the hernia is more frequent among that class of people. It is found more among the Rachelle or Italian types, who are more disposed than others. It may be because they do more heavy manual labor. Those people have a setting for hernia.”

Doctor Anthony testified, page 29:

“Q. In your opinion, doctor, would standing erect and pulling on a wrench cause the sudden development of a hernia?
“A. That would depend entirely on how hard the fellow pulled. It is entirely possible that it might cause a hernia to develop or aggravate one that was already developing. They are usually developed from some certain strain when the abdominal muscles or other muscles, that help protect those things are off their guard, and they get a strain, like lifting in a stooping position. Then you get a strain or have a weight dropped on you, or something like that.”

Page 30.

“Q. In this case, doctor, according to the testimony of the plaintiff, he never had any trouble with his abdomen before, that he knew of, while standing erect or straight up, and pulling on a wrench, he developed a severe pain in his side. He called a helper to tighten up the nut, and later went back to work and worked the balance of that day and the next day, and the second day. In other words, he worked more than two full days after he felt the pain. Several days' after that, he called at the office of a physician, and on examination the physician found that he was suffering with an inguinal hernia. Is it your opinion that that pull on that wrench could have caused that hernia?
“A. It is much more likely that the hernia already existed, and that the pull on the wrench caused some pinching of the intestines or the pushing of the contents that were in the hernia, or that more was pushed into it by the strain and overstretched the ring, and caused the pain.”

Page 31.

“Q. In your opinion, did that pull on the wrench have any more to do with the development of that hernia than any other physical exercise that he had undergone prior to that time, such as pulling wrenches, climbing the steps of his machine, etc. ?
“A. It might have. The effect on a developing hernia depends entirely upon the strength of the intra abdominal pressure.
“Q. Is there any great amount of abdominal pressure of pulling, when standing straight up?
“A. Ordinarily you would not think so, but it is possible that it would be increased. He might have been under a strain otherwise, standing erect; he might not have been comfortable. The hernia being progressive, might have developed to a certain point that very' little trauma or a trauma that ordinarily might not affect it, might at this time give him pain.
“Q. In your opinion, could that pull on that wrench be said to be the cause of that hernia, or a material aggravation of the hernia?
“A. I would not consider it the cause, but it might have aggravated it.

Doctor Rand testified, page 35.

“Q. In this case the plaintiff, while engaged in the scope of his employment with the defendant as loader, running a loading machine, while tightening a nut with a wrench, felt a sudden pain in his side. He quit pulling on the wrench at the time, and had somebody else tighten the nut. A little while after that he went back to his work, and continued loading logs that day, and worked for two days after that, and several days after that he was examined by a physician, who discovered that he had a small inguinal hernia, well developed. He testified that he had never had any pains in his abdomen, no trouble there, and as «far as he knew, never had a hernia.
“Q. Under these conditions, please state what, in your opinion, pulling on the wrench had to do with the development or cause of the hernia?
“A. I doubt exceedingly if it had anything to do with the cause of the hernia. The strain or pull that he had on the wrench, if severe enough, might enlarge it, or aggravate it, but I doubt if it could produce one.
“Q. In your opinion, doctor, state whether or not the hernia existed at that time?
“A. The hernia existed before he was ■injured.”

Page 37. .

“Q. Would you think this congenital?
“A. I think practically all hernias' are congenital.”

Page 39.

“Q. Was the kind of work he was doing likely to aid in the development of the hernia?
“A. Great strains will undoubtedly increase the intra abdominal pressure and cause the development of hernia in individuals quicker 'than one who lead a sedentary life. If this man has been a laborer all his life, doing the same type of work, I see no reason why at sixty years with the proper amount of exercise, a hernia should exist any sooner at sixty than it would at twenty.”

Defendant insists that this evidence proves that hernia is a disease and not compensable under the Workmen’s Compensation Law. We cannot concur in this view. The evidence, we think, clearly shows that a strain might produce hernia.

The Supreme Court in Behan vs. John B. Honor Co., 143 La. 358, 78 South. 589, held that the fact the injured employee was already affected with a dormant disease that might some day have produced physical disability is no reason why the employee should not be allowed compensation.

In our opinion the evidence establishes that hernia may result from a strain such as that complained of by plaintiff.

In our original opinion herein, on application for rehearing, we quoted from “Workmen’s Compensation Acts” a Corpus Juris treatise by Donald J. Kiser, issued by the American Law Book Company, the following statement of the law, on'page 68, as sustaining the proposition that the term accident, as used in the compensation act, is broad enough to include an injury from muscular strain or over-exertion.

“The term ‘accident’, as employed in the compensation acts, is broad enough to include an -injury from muscular strain or physical over exertion, (41) such as hernia or rupture, (42) or bursting of blood vessels, (45). This is true although the physical condition of the employee is such as to predispose him to the injury 144). But it has been held there must be a definite particular occurrence to which th« injury can be attributed.” (45).

Under Note 42, relating to hernia or rupture, are cited the folowing cases:

Bell vs. Haynes-Iona Co. (Mich.), 158 N. W. 179.

Robbins vs. Original Gas Engine Co. (Mich.), 157 N. W. 437.

Zappala vs. Industrial Ins. Comm., 82 Wash. 314, 144 Pac. 54, L. R. A. 1916A, 295.

Poccardi vs. Pub. Service Comm., 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299.

Fenton vs. Thorley (1903), A. C. 443, 5 W. C. C. 1.

Brown vs Kemp, 6 B. W. C. C. 725.

Fulford vs. Northfleet Coal Co., 1 B. W. C. C. 222.

Under Notes 41, 43, 44, 45, 46 and 47 are also cited:

“Acceleration of a diseased bodily condition may constitute a personal injury, (46) and an injury may be by ‘accident’, although it would not have been sustained by a perfectly healthy individual.”

In addition to these authorities we desire to quote the additional authority of Klika vs. Independent School District No. 79, a Minnesota case, reported in 202 N. W. 30, decided January 23, 1925, and the syllabus of which reads, as follows:

“An inguinal hernia, the development of which is caused by overexertion or strain, is, an ‘accidental injury’ within the Workmen’s Compensation Act and is compensable. It is unimportant in the administration of the law whether from a medical or scientific standpoint, hernia is classed as a disease or a malformation or is otherwise designated; nor is it important that the employee is predisposed thereto. The' law concerns itself only with the legal cause.”

From all the evidence in the case and the authorities above quoted, we are convinced that our original judgment herein was correct, and that the defendant is responsible for compensation.

This brings us to the question of the amount of the compensation. The evidence shows that at the time the plaintiff was injured he was earning $175.00 per month. He testifies that since the accident he has not been able to do any work. On page 4 he says:

“Q. During what period of time, if any, since that time have you been totally disabled to work?
“A. I haven’t worked any since that time.

Page 5:

“Q. Why haven’t you?
“A. Because I haven’t been able.

Page 9:

“Q. Did you go back to work?
“A. No, sir.
“Q. Why didn’t you?
“A. Because I didn’t think I could stand the work.

Page 11:

“Q. Have you tried to do any hard work since this happened?
“A. No, sir.
“Q. Why haven’t you?
“A. I haven’t been able to.”

On the new trial defendant did not introduce any additional evidence on this point.

Plaintiff tendered himself as a witness and swore that he had not been able to earn wages since his injury; that his wife and himself and his family had operated a boarding house since that time. The evidence, we think, shows that the injury complained "of has produced partial disability on the part of the plaintiff to do work of any reasonable character, .and there is no evidence showing that since the accident he has been able to do work at which he could earn wages.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 2519
    Second Circuit
    A. J. McCEARLEY v. A. B. LEARNED
    (December 1, 1925, Opinion, and Decree)
    (March 11, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on a matter of fact, namely, that the loss of plaintiff’s cattle was not due to negligence of defendant’s employees or agents, being clearly correct -is affirmed.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of Concordia, Hon. R. N. Taliaferro, Judge.
    This is a suit to recover the value of cattle which died from eating poison on defendant’s farm.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Philip Hough, of Yidalia, attorney (tor plaintiff, appellant.
    Dale, Young and Dale, of Vidalia, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit to recover the value of forty-four head of cattle which be alleges died from eating calcium arsenate and sodium nitrate on - defendant’s farm.

He alleges that these poisons were carelessly left exposed to his cattle on defendant’s farm and that defendant is liable to him for the damage caused thereby.

Defendant denied liability.

The case was tried in the District Court and resulted in a judgment in favor of defendant, rejecting plaintiff’s demands at his cost; from which judgment plaintiff has appealed.

We are indebted to our learned Brother of the District Bench for a well considered written opinion, which we think correctly states the case and the .facts adduced on the trial; and as we fully agree with his statement of the facts and his findings thereunder, we adopt his opinion and make it our own.

OPINION OP THE DISTRICT JUDGE..

“Plaintiff sues defendant, who is a nonresident, for the value of 44 head of cattle alleged to have been killed, or to have died, as a result qf eating sodium nitrate and calcium arsenate negligently stored and handled on defendant’s Black Hawk plantation in Concordia parish by the agents and representatives of defendant.
“Defendant denies all liability, denies all the essential allegations of the plaintiff’s petition, and denies negligence of such a character as would render him liable for the value of plaintiff’s cattle, if killed by eating the poisons named.
“The established facts appear to be these. That in the autumn of 1923 plaintiff had 65 head of good cattle which he pastured or allowed to graze on the Black Hawk plantation belonging to defendant after the crops had been gathered and the field opened up so as to allow cattle to enter therein, as was and had been the Custom; that quite^ a large number of cattle grazed upon this plantation at the time plaintiff’s did; that during the winter of 1923-1924 an unusual number of cattle died on this plantation, such a large number that attention was attracted thereto, but the cause was not determined, unless it be as claimed by plaintiff; that wild peas grow on the Black Hawk plantation in large quantities and that after very cold ■weather, or rains, cattle will die from eating these peas; that cold weather and rain cause a poison to form in the roots of these peas which will kill cattle after eating them; that calcium arsenate is a deadly poison to cattle and that as a rule one ounce is sufficient to kill; that sodium nitrate is also a poison and that it requires twelve ounces of this to kill a cow; that the former is used on cotton by dusting or powdering the cotton therewith to prevent boll-weevil depredation, and the latter is used as a fertilizer to crops; that plaintiff had the contents of the viscera of one steer analysed by a competent chemist, May 14, 1924, which he found dead near his place, and the chemist found sodium nitrate therein; though it was not testified in sufficient quantity to kill; a quantatitive analysis not having been made; that plaintiff saw three of his cattle dead on the plantation, or about, before he removed them in March, 1924, at which time he could only count or locate twenty-one head of his own; that after taking the cattle from the Black Hawk pasture he saw nine more head of them dead; that the employees and agents of defendant were not as careful as they should have been in storing, handling and distributing these poisons.

OPINION

“Two questions are presented in this ease, one of fact and the other of law. The first is, has the plaintiff established the loss of his cattle by eating these poisons on and about the plantation of defendant with that degree of certainty that would justify a court in granting him relief; and the other is, if he has discharged the burden of proof in this respect, by establishing his loss and the cause of same, is the negligence of defendant’s employees, agents, etc., of such a character ' as to render him liable for plaintiff’s loss.
“Plaintiff determines his own loss in cattle by a process of elimination and deduction. He had 65 head when they commenced to graze on the Black Hawk place about December 1, 1923, and he could only count 21 head of his own when they were taken out of this place about April 1, 1924; and, according to his own testimony, page 8, he lost 9 head after the fields, were closed to cattle, thus leaving him only some 12 head, which corresponds with his assessment for 1924. He only sues for the value of 44 head. Of this number the plaintiff only saw twelve head dead and of this number only one is shown to have actually eaten poison, viz: sodium nitrate, on or about May 13, 1924, near the home of Hezekiah Wilson. It was the contents of the stomach of this animal that the chemist analysed and found it to contain sodium nitrate. It will be observed that at this time the feed-house of defendant wherein the sodium nitrate had been stored had been fenced some thirty days. Testimony of witness Wales, page 65, and of plaintiff, page 7. It is a fair inference that this animal ate the poison from the sack on the gallery of the home of Hezekiah Wilson; but even assuming this to be true, it does not appear that defendant or his agents placed the poison there or were responsible to any extent for its being there.
“To. justify the court in awarding plaintiff judgment, even if defendant’s negligence is such that would render him liable for plaintiff’s loss, a proposition we entertain much doubt upon, it is necessary to conclude that the evidence establishes that the 32 head of cattle which were missing and which no one has seen dead, according to the evidence in this case, did die and that they died of eating one or the other of these poisons, on defendant’s plantation. We are unable to agree to this.
“It is probable some or all of the other 12 head (excluding the steer that died at Hezekiah Wilson’s house) died of eating some of these poisons, or that the eating of the poison contributed to the death of some or all, but does the evidence establish this with legal certainty? We do not think it does.
“It is established that the winter of 1923-1924 had some cold and rainy intervals; that eating wild peas during or after such weather conditions will kill cattle within a short time, and that there are many of such peas on Black Hawk; it is also shown by the evidence that herds of cattle are regularly subject to normal death rates which it is well known increase in winter, due to bad weather conditions.
“With these facts confronting us, it might not be improper to ask, how many of these eleven head might have died of normal cause, how many of eating wild peas, and how many of eating poison? Where can the line of separation be drawn ?
“Practically all of the witnesses who testified in the case agree that eating wild peas has killed many of their cattle, and plaintiff testified that at first he thought this was the cause of the death of his cattle, page 18. Mr. Gregory, in his testimony, page 55, states that he had the contents of the stomachs of some cattle examined in 1920 by Dr. Rank and that it was found that wild peas was the cause of their death.
“After a careful consideration of the testimony in this case, we are of the opinion that plaintiff has not discharged the burden of proof resting on him; that he- has not established with legal certainty that the loss of his cattle was due to eating these poisons on defendant’s plantation.
“It is, for said reasons, ordered, adjudged and decreed that the demand of plaintiff be rejected and his suit dismissed at his cost.”

Having found for the defendant on the question of fact, it is unnecessary to discuss the question of law raised by defendant.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be affirmed at the cost of plaintiff in both courts.


text:
    No. 2393
    Second Circuit
    NEELUS B. DeBELLEVUE ET AL. v. C. P. COUVILLION ET AL.
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 570.
    The appellate court will not pass upon the whole judgment of the lower court when the appeal has been asked for and granted only from a part of it.'
    2. Louisiana Digest—Pleading—Par. 29.
    A prayer for general relief authorizes all ordinary decrees which the pleadings and evidence may justify.
    3. Louisiana Digest—Possession—Par. 20.
    A possessor of real estate, even though in bad faith, when evicted is entitled to reimbursement for the sum which he paid for the preservation of the property.
    Appeal from the Twelfth. Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    This is a suit in which the plaintiffs alleging to be the owners and in possession of a certain tract of land asked that a tax sale be declared null and enjoined the defendant, the tax purchaser and the sheriff from taking possession of the land. In the alternative they asked for the value of improvements placed upon the land and attorney’s fees and expenses. There was judgment for defendant recognizing him as the owner of the property and in favor of plaintiff for the value of the improvements placed upon the property.
    Plaintiffs appealed.
    Judgment affirmed.
    Samuel Moreau, of Marksville, attorney for plaintiffs, appellees.
    Bordelon apd Norman, of Marksville, attorneys for. defendant, appellant.
   ODOM, J.

Plaintiffs allege that they are the owners and in posesssion of a certain tract of land in Avoyelles parish, Louisiana, and that, on August 5, 1922, the defendant, P. Emeric Guillot, purchased the said land, or a tract claimed to be the same, at tax sale, and that said defendant brought suit in the District Court to confirm and quiet his tax title and asked to be placed in possession of the land by order of court.

They further allege that upon his application the court ordered the sheriff to seize the said land and place the said tax purchaser in possession thereof, and that unless restrained from doing so the sheriff will execute the order of the court.

Plaintiffs attack the tax sale on several grounds, and ask that the court set aside the sale, and for an injunction restraining the defendant P. Emeric Guillot and the sheriff from taking possession of the land or in anywise disturbing or ejecting them.

In the alternative, and in the event the court should hold that defendant P. Emeric Guillot’s tax title is good and that he is entitled to possession of said property, one of the plaintiffs, Samuel Moreau, who is alleged to own an undivided half interest in said land, asks that the defendant P. Emeric Guillot be ordered to pay. him §125.00, the value of certain improvements which he alleges he placed thereon.

They further ask for attorney’s fees of $50.00 and expenses of suit, amounting to $25.00.

They pray for the issuance of an injunction, that said tax sale be declared a nullity and the tax deed erased from the records, and for judgment for $75.00 as damages.

Samuel Moreau does not specifically pray for judgment for the value of his improvements.

In answer, defendant P. Emeric Guillot admitted that he had instituted suit to quiet and confirm his tax title and to be placed in possession of said property, and especially set up the legality of his tax title and' asked that it be declared valid. He especially denied that any improvements had been placed on said property as alleged.

On these issues the case was tried and judgment was rendered in favor of the defendant, P. Emeric Guillot, recognizing him as the owner of the property 'and ordering him placed in possession thereof, and granting judgment in favor of Samuel Moreau and against defendant P. Emeric Guillot for $125.00 for improvements placed on the land, and rejecting the claims of both parties for attorney’s fees.

Prom this judgment the plaintiffs have not appealed.

The minutes show the following as to the appeal:

“On motion of defendant through his counsel in open court a devolutive and suspensive appeal was granted in this case returnable to the Second Circuit Court in the City of Shreveport, Louisiana, May 10, 1925, on that part of judgment decreeing judgment in favor of Samuel Moreau and against P. E. Guillot for the sum of $125.00, on defendant furnishing bond in the sum of $25.00 in the devolutive appeal and as the law directs in the suspensive appeal.”

OPINION

The main issue presented and. tried in the District Court was that of title to the land in controversy, the plaintiffs, except Samuel Moreau, claiming to own an undivided half interest thereof by inheritance, and the plaintiff, Samuel Moreau, claiming to own the other undivided half thereof by virtue of a succession sale.

The defendant, P. Emeric Guillot, on the contrary, claimed to own the whole property by virtue of a tax sale dated August 5, 1922.

On this issue the judgment of the lower court was against the plaintiffs. Prom it none of them have appealed. Therefore that issue is not before us for determination.

The defendant P. Emeric Guillot asked for and was granted a special appeal from that part only of the judgment which'condemned him to pay Samuel Moreau $125.00, the value of the improvements which he had placed on the property.

This court will not pass upon the whole judgment of the lower court when an appeal has been askfed for and granted only from a part of it.

Ikerd vs. Postlewhaite, 34 La. Ann. 1235.

Laloire vs. Wiltz, 31 La. Ann. 436.

White vs. Baptist Church, 31 La. Ann. 521.

New Orleans vs. Railroad Co., 41 La. Ann. 904, 6 South. 719.

Huntington vs. Bordeaux, 42 La. Ann. 346, 7 South. 553.

Plaintiffs filed in this court a motion asking:

“That the decision rendered by the lower court sustaining the tax sale made by the sheriff to P. Emeric Guillot, should be reversed, annulled and set aside, and with the amendment that the demand of the plaintiffs be recognized and as such af-' firmed by your honorable court.”

This prayer for amendment of the judgment could be considered by us if the judgment of which plaintiffs complain had been brought before us on appeal by the defendant; but the defendant did not appeal from that part of the judgment, for it was in hisi favor; he limited his appeal to only that part of the judgment which condemned him to pay to plaintiff, Samuel Moreau, $125.00, the alleged value of improvements placed upon the property by him.

Code of Practice, Article 888, provides:

“If the appellee has cause to complain of the judgment appealed from, he may, without appeal on his part, state in his answer the points on which he thinks he has sustained wrong, and may pray that the judgment be reversed with respect to them, and confirmed with costs on the rest.”

But the judgment in this case of which plaintiffs complain has not been appealed from and therefore we can neither amend or reverse it for the reason that it is not before us.

Defendant appealed from that part of the judgment of the lower court awarding Samuel Moreau $125.00 for improvements placed on the property by him. He urges that the court erred in its judgment in that respect, first, because the plaintiff, Samuel Moreau, did not pray for judgment for the value of his improvements, and, second, because the improvements were not placed thereon by him in good faith, and that being a possessor in bad faith he is not entitled under the law to recover anything.

Neither contention of defendant can be maintained.

In paragraph ten of plaintiffs’ petition it is specifically alleged:

“* * * that Samuel Moreau, one of your petitioners herein, an owner of the undivided one-half of said property, as alleged, has placed improvements on said property, consisting of repairs on dwelling house, building fences, amounting to the sum of one hundred twenty-five dollars, and that he 4s entitled to be reimbursed said amount from the said P. Emeric Guillot, and therefore claims the same from said Guillot in reconvention with legal interest from judicial demand.”

This claim is made in the alternative, in case the court should hold that plaintiffs’ title to the property was not good.

He did not specifically pray for judgment for this amount but ended his prayer thus:

“And petitioners pray for costs, and general and equitable relief in the premises.”

The following testimony was given by Moreau and received without objection:

“I wish to further state that as co-owner of said estate that I have remained in undisputed possession of this property; that since I have owned it as purchaser I have placed repairs on it, such as the maintenance of the dwelling, outhouses and considerable building of fences, which amounts to the sum of $125.00 in case of eviction.”

This testimony is not disputed.

Having specifically alleged upon this item and the testimony having been admitted without objection, plaintiff is entitled to judgment under his prajer for general relief.

The principle is thus stated in Legier vs. Braughn, 123 La. 463 (466) 49 South. 22:

“A prayer for general relief authorizes all ordinary decrees which the pleadings and evidence may justify.”

Leland vs. Rose, 11 La. Ann. 69.

Lochte vs. Lefebvre, 124 La. 244 (252) 50 South. 26.

Kinder vs. Scharff, 125 La. 594, 51 South. 654.

“Under a prayer for general relief suited to the nature and justice of the case, the court may render such judgment as would be given in a new suit, to avoid the circuity of action.”

See, Hennen’s Digest, vol, 1, page 734, and authorities there cited.

“Where plaintiff asked for relief less extensive than that to which he is entitled but also states the facts and prays for all the relief equity would sanction, a judgment according him the relief to which he is entitled will not be changed.”

Newton vs. Gray & Campbell, 10 La. Ann. 67.

Espinola vs. Blasco, 15 La. Ann. 426.

Renshaw vs. Richards, 30 La. Ann. 398.

Vincent vs. Phillips, 47 La. Ann. 1238, 17 South. 786.

Richardson vs. Weiner, 5 La. Ann. 646.

Hughes vs. Hughes, 14 La. Ann. 863.

The second objection urged by defendant, that is, whether plaintiff was in good faith or bad faith, need not be discussed or decided, as he is entitled to reimbursement for the amount he paid out in either event.

It was long since settled that a possessor of real estate, even though in bad' faith, when evicted is entitled to reimbursement for the sums which he paid for the preservation of the property.

According to the testimony in this case, the amount which plaintiff claims was paid out for repairing and maintaining the houses and fences on the property.

In the case of Voiers vs. Atkins, 113 La. 303 (342), 36 South. 974, it was specifically held that such items are properly elassible as expenses for the preservation of the property for which the defendant is entitled to absolute judgment.

In that ease the plaintiff contended that a possessor in bad faith can claim compensation only for such improvements as are susceptible of being removed and for such expenses as have been incurred in the preservation of the property, and the court said:

“This contention appears to us to be well founded.”

Mr. Justice Provosty, the organ of the court, on rehearing in that case reviewed at great length our Codal provisions, the jurisprudence of our state and the French, authorities on the subject, and held, as we have already stated.

A citation of authorities on this question would be altogether useless, for in the Voiers vs. Atkins case, supra, the authorities are cited and quoted.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from he affirmed with costs.


text:
    No. 2436
    Second Circuit
    CENTRAL HARDWARE COMPANY, INC., v. WILLIAM H. ELLIOTT
    (February 8, 1926, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Interest—Par. 31; Tender—Par. 1, 6.
    No one is required to do a vain thing. The peremptory refusal of a creditor to accept full payment of what is due him when actually tendered dispenses with the formality of actually producing the money in the presence of witnesses, as required by Code of Practice, Art. 407. Thereafter no interest will be allowed on the obligation.
    McStea & Value vs. Warren & Crawford, 26 La. Ann. 453.
    Alter vs. Shepherd, 27 La. Ann. 210.
    Zimmerman vs. Langle, 36 La. Ann. 68.
    Frey vs. Fitzpatrick, 108 La. 125, 32 South. 437.
    2. Louisiana Digest—Evidence—Par. 162.
    In cases of verbal contracts, the declarations of the parties or either of them made at the time of entering into the contract are direct proofs of the contract itself and therefore not hearsay evidence; and any complete statement so made heard by a third person is admissible in evidence.
    Gordon vs. Stubbs, 36 La. Ann. 625.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    This is a suit to recover a balance on an alleged verbal contract of lease.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment set aside and for plaintiff in smaller amount.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    ' Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    This is a suit by the Central Hardware Company, Inc., against William H. Elliott to recover $1500.00 balance claimed to be owing on a verbal contract of lease that plaintiff alleges was entered into by it with defendant for twenty months, from January 15, 1923, to September 14, 1924, at $100.00 per month, and under which lease defendant had paid $500.00.
    Defendant admitted he entered into a lease contract with plaintiff but denied that it was for twenty months or any fixed period and alleged that it was by the month and was to terminate at his pleasure.
    He further alleges that he occupied the leased premises for six months, or from January 15 to July 14, and that he paid plaintiff $500.00 for the first five months’ rent at the rate of $100.00 a month, and on July 14 mailed him 'a check for $100.00 as rent money, together with the keys to the building, but that the plaintiff refused to accept- the check tendered in full payment.
    There were other issues presented under thd pleadings and evidence, but under the view which we take of the case, these are the only issues that need be considered.
    The case went to trial and there was judgment in favor of plaintiff as prayed for and the defendant appealed.
   REYNOLDS, J.

OPINION.

The question to be decided is whether the lease contract entered into was for twenty months, as contended by plaintiff, or by the month, as claimed by defendant.

It is admitted by both plaintiff and defendant that a lease contract was entered into.

Mr. J. A. R. Peart and Mr. J. G. Bond, who represented the plaintiff in making the lease, swore positively that the lease was for the full remaining term of plaintiff’s own lease, or twenty months.

Defendant, William H. Elliott, swore positively that the lease was from month to month at $100.00 per month, and that he was at liberty to abandon the premises at any time he saw fit to do so, and that he had refused to enter into a contract of lease for any stipulated time.

Peart and Bond both testified, in effect, that defendant’s principal purpose in buying defendant’s stock of merchan-

dise in the store, which he did, was to obtain the use of the building.

Mr. Peart testified, page 17;

“Q. And Mr. Elliott took it just as it was on your inventory, after the examination to which you have testified?
“A. He accepted it as it was; he was after the building.”

Mr. Bond testified, page 26:

“Q. I asked you what was the moving consideration for the' sacrifice of the goods at 71c on the dollar? In other words, why did you sell it at so greatly reduced price?
“A. To get rid of the building, and that seemed to be Mr. Elliott’s prime purpose in buying the stock of merchandise, was to get the building.
“Q. What did he say as to that?
“A. He said that that was the only reason that he would pay us $100.00 a month and buy the stock of merchandise was to get a lease on the building.”

If defendant, a dry goods merchant was as anxious to secure a lease on the building as contended by plaintiff’s witnesses, and was so anxious to get a lease on the building that he, a dry goods merchant, was willing to buy a $5000.00 stock of hardware merchandise, we cannot understand why it was necessary for plaintiff to reduce the price of his lease from $123.00 a month to $100.00 a month in order to be able to close the lease contract.

Neither can we understand why an experienced business man like Mr. Peart or Mr. Bond failed to secure rent notes or a written lease if Mr. Elliott was as anxious to secure the lease as they say he was.

Nor can we understand why Mr. Elliott, if he was so anxious to secure the lease, failed to demand a written contract, since without one he was certainly at the mercy of the plaintiff.

The fact that neither plaintiff nor defendant demanded a written contract of lease corroborates, we think, Mr. Elliott’s contention that the contract was by the month.

And Mr. Elliott’s contention that the lease was from month to month is further corroborated by thé testimony of Mr. Strange, page 75.

“Q. I asked you what was it that you heard Mr. Elliott saying to these gentlemen?
“A. I heard Mr. Elliott, while we were in there, * * * speak to this gentleman here and say that he did not want a contract, a lease, but that he would pay $100.00 a month for the time that he used the building; ®

Plaintiff objected to this evidence on the ground that it was hearsay, and that the witness had not heard all of the conversation and therefore should not be permitted to testify to what he had heard.

We do not think the objection sound for the reason that the portion of the conversation that the witness heard was a complete statement of what one of the parties to a verbal contract said about it at the time it was entered into.

In cases of verbal contracts, the declarations of the parties to- them or of either of them, made at the time of entering into the contract, in respect of the contract, should be viewed as distinct proof of the contract itself.

Gordon vs. Stubbs, 36 La. Ann. 625, supra.

The statement of one of the contracting parties about the contract made at the time the contract is being entered into is not hearsay but forms part of the contract itself.

Ibid.

We think the evidence of Mr. Strange, above quoted, was admissible, and, accepting the same as true, it completely destroys the contention of plaintiff that the lease was one for twenty months.

Mr. Elliott’s version of the contract is further corroborated by the testimony of Prank Norfleet, who testified, pages 79 and 80:

“Q. Did Mr. Peart state to you in that conversation whether he had leased that building to Mr. Elliott for twenty-two months—I mean for twenty months, the unexpired term of your lease—or had leased to Mr. Elliott by the month?
“A. I understood him to say that he had leased it< by the month, as well as I can remember.
“Q. Did Mr. Peart say anything to you with' reference to changing it into a garage?
“A. No, sir, but he asked me to get a renter after Mr. Elliott moved out.”

Mr. Elliott is further corroborated by Mr. Noel A. Privatte, who testified, pages 104 and 108:

“Q. Did you hear Mr. Elliott ask Mr. Peart anything about what sort of a contract of lease he and Mr. Peart had entered into?
“A. I heard Mr. Elliott ask Mr. Peart if he ever agreed to take a lease on the building except from month to month, and Mr. Peart said no, you never have taken a lease.
“Q. Mr. Privette, did I understand you to say that you did hear Mr. Peart admit that Mr. Elliott had never agreed to take the building except from month to month?
“A. Yes, sir, I understood that distinctly.”

Mr. Elliott is further corroborated, we think, by the fact that on July 7, 1923, he wrote to plaintiff enclosing a check for $100.00 in full payment of all rent due by him and also enclosed the keys to the building and notified plaintiff that he would not use the building any more, and that a short time thereafter he defied Mr. Peart to interfere in any way with his moving his goods out of the store. We think that if plaintiff had been satisfied at that time that it had a claim against defendant for fourteen months additional rent at $100.00 a month it would not have allowed defendant to move his goods out of the building and thereby free the goods from its claim of a lessor’s privilege thereon but would rather have sequestered the goods for the balance alleged to be due for rent; and especially would plaintiff not have waited from July 14 to December 17 before ’ filing this suit.

We always give weight, to the findings of the lower court on questions of fact, especially when the reasons for judgment are given in writing; but when we are convinced, as we are from the evidence in this ease, that the judgment appealed from is erroneous, it becomes our duty to reverse it.

Defendant asks judgment against plaintiff in reconvention for $309.78 for goods alleged to have been broken or missing and not delivered according to agreement, and also for $114.00 interest paid and that should be refunded.

The weight of the evidence does not, we think, warrant us in allowing these demands.

Defendant owed plaintiff $100.00 for the last month’s rent of the store and mailed it a check for that amount, and plaintiff wrote defendant that it would not accept the amount in full settlement. Plaintiff’s refusal of the check relieved defendant from the necessity of making any further tender and also terminated the period during which interest could be allowed plaintiff.

Frey vs. Fitzpatrick, 108 La. 125, 32 South. 437.

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court be avoided and set aside and that plaintiff have judgment against defendant for the sum of one hundred dollars. Plaintiff to pay the costs of both courts.


text:
    No. 2457
    Second Circuit
    MRS. ANNA C. MOORE v. DAY BUILDERS SUPPLY COMPANY, INC., ET AL.
    (February 8, 1926, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)
    (April 10, 1926, Rehearing Refused. See 3 La. App. 648.)

      {Syllabus by the Court)

    1.Louisiana Digest—Master and Servant —Par. 164; Pleading—Par. 62.
    The master is not responsible for the tortious acts of his servant committed outside of the scope of the servant’s employment. It therefore follows that a petition that does not allege that the act of a servant complained of was committed while he was acting within the scope of his employment does not express a cause or right of action against the master.
    2. Louisiana Digest—Pleading—Par. 83, 85.
    When an amendment to a petition is one of substance it cannot be considered part of the petition until it has been put at issue by answer or default.
    3. Louisiana Digest—Appeal—Par. 727.
    Where no default has been taken or answer filed to an amended petition containing new matter of substance, proceedings taken subsequent to the filing of such amended petition will be set aside on appeal and the case remanded to be proceeded with according to law.
    Brown vs. Brown, 21 La. Ann. 461.
    Appeal from the City Court, Alexandria Ward, Rapides Parish, Louisiana. Hon. J. B. Nachman, Judge.
    This is a suit for damages to a truck caused by a collision between a truck and a street car.
    There was judgment for one defendant, the city of Alexandria, but judgment for plaintiff against the Day Builders Supply Company.
    The Day Builders Supply Company appealed.
    Judgment reversed and case remanded for the purpose of hearing both parties on the question as to whether or not the amended petition should be allowed.
    T. F. Hunter, of Alexandria, attorney for plaintiff, appellee.
    Hakenyos, Scott & Provosty, of Alexandria, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    Plaintiff sued defendants for damages to her truck in a collision between a street car belonging to and operated by the city of Alexandria and a truck belonging to the defendant, the Day Builders Supply Company, Inc.
    The fourth paragraph of her original petition is as follows:
    “That on November 16, 1923, in the city of Alexandria, a Dodge truck, owned and operated by your petitioner in the grocery business in said city, was being-driven by Charles K. White, employee and agent of the petitioner herein, and that said truck was coming down Lee street towards the river, between Ninth and Tenth streets, and that as said truck approached Ninth street a big lumber truck belonging to the Day Builders Supply Company, driven by a negro boy in the employment of said company, was coming into Lee street from Ninth street and went to cross Lee street, while being operated at a reckless rate of speed, and that coming from the river up Lee street the street car owned and operated by the city of Alexandria was approaching Ninth street at a very rapid rate of speed; that said truck of the Day Builders Supply Company and the street car of the city of Alexandria collided with such force that the truck of the Day Builders Supply Company was pushed and skidded into the truck of your petitioner, which, after seeing the danger of a collision has stopped still at the curb on Ninth street about fifteen feet from the corner.”
   REYNOLDS, J.

The city of Alexandria filed its answer on November 19, 1924.

On January 19, 1925, Day Builders Supply Company, Inc., filed an exception of no right or cause of action to plaintiff’s petition; and, on the same day, reserving its rights under its exception, it filed an answer to plaintiff’s petition denying liability.

On January 30, 1925, defendant, Day Builders Supply Company Inc.’s exception was argued and taken under advisement by the court.

On February 4, 1925, according to the minutes of the court, plaintiff filed a supplemental and amended petition.

This supplemental petition is endorsed: “Filed, February 5, 1925. J. B. Nachman, City Judge.”

The supplemental petition was served on the Day Builders Supply Company on February 6, 1925, as appears from the return of the city marshal, W. C. Nash.

On March 17, 1925, the exception was referred to the merits and the case set for trial on April 17, 1925.

On April 17, 1925, the case was taken up and tried in part and, by consent of counsel, was continued until May 1, 1925, for the taking of further testimony.

On May 1, 1925, the trial of the case was resumed and concluded and the case was taken under advisement by the court.

On June 12, 1925, judgment was rendered rejecting plaintiff’s demands as against the city of Alexandria and in favor of the plaintiff and against Day Builders Supply Company, Inc., for $63.50.

From this judgment the Day Builders Supply Company, Inc., appealed. Plaintiff did not appeal from the judgment rejecting her demands as against the city of Alexandria.

OPINION.

It is not seriously contended that paragraph four of plaintiff’s original petition stated a cause of action against defendant, Day Builders Supply Company, Inc., and plaintiff to correct it by a supplemental petition which added thereto, in reference to the servant driving said company’s truck at the time of the accident, the words, “who was acting in the course of his employment and in the furtherance of the business of his employer”.

The Day Builders Supply Company, Inc., insists that the supplemental and amended petition should not be considered by us for the reason that there was no formal order of court permitting plaintiff to amend her petition.

Plaintiff, in argument, contended that the city judge, who acted as his own clerk of court, having in person marked the amended petition “filed” that this was equivalent to a formal order allowing the amendment.

This contention of plaintiff finds support in the fact that the judge referred defendant’s exception to the merits after plaintiff’s amended petition had been served on it.

Under the circumstances we thi'nk the amended petition cannot be totally disregarded.

But there was no default taken on the amended petition or answer filed thereto. It therefore follows that all the proceedings had in the case subsequent to the filing of the amended petition were highly irregular, null and void, and that the case must be remanded to the court below to be proceeded with according to law.

If it were to be conceded that marking “filed” on the amended petition by the city judge, who acted as his own clerk, was equivalent to allowing the amended petition, it would then follow that the amended petition had been allowed without the defendant having had an opportunity to be heard as to whether or not the amendment, such as it was, should have been allowed at the time and under the circumstances existing when the amendment was tendered to the court for filing.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and the case is remanded to the City Court, Alexandria District, Rapides Parish, Louisiana, with instructions to the judge to hear both parties on the question as to whether or not the amended petition should be allowed, and after that question is decided, without regard as to how it is decided, that the case then be proceeded with according to law.

Plaintiff to pay the costs of the appeal; all other costs to await the final result.


author: WEBB, J.

text:
    No. 2249
    Second Circuit
    ISAAC POSNER v. CHAS. DALE & SON, INC., AND CHAS. DALE
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest — Obligations — Par. 100.
    The stipulation in a written contract which provided that the creditor would select the cattle in the future was in its nature a suspensive condition or condition precedent to delivery under Article 2466 of the Civil Code.
    2. Louisiana Digest—Obligations — Par. 100, 149.
    Where a suspensive condition in a contract provided that the cattle were to be selected, and the plaintiff left the matter of selection open after he had been shown some of the cattle, the defendant was not in default.
    3. Louisiana Digest—Obligations—Par. 166, 169.
    Where the defendant is in default on a contract the plaintiff’s action is one in damages.
    (Civil Code, Arts. 1927 and 1934. Editor's note.)
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Grant. Hon. Leven L. Hooe, Judge.
    This is a suit by which the plaintiff seeks to recover judgment in solido against a corporation and individual for balance due for merchandise purchased by the corporation and alleged to have been guaranteed by the individual.
    There was judgment for plaintiff against the corporation, which was insolvent, and in favor of the defendant individual.
    Plaintiff appealed.
    Judgment affirmed.
    Blackman & Overton and H. W. Hill, of Alexandria, attorneys for plaintiff, appellant.
    W. R. Jones, of Alexandria, attorney for defendant, appellee.'
   WEBB, J.

In this action • plaintiff seeks to recover judgment in solido against Charles Dale & Son, Inc., a corporation, and Charles Dale in the sum of $433.23, balance alleged to be due for merchandise purchased by the corporation, payment of which is alleged to have been guaranteed by Charles Dale, as per written contract referred to, but not annexed to the petition.

The contract reads as follows:

“I hereby agreed to sell I. Posner grown cows at $50.00 each to settle the account of Charles Dale & Sons, due said Posner, amounting to the sum of about $550.00, said cattle to be selected from my herd by Mr. Posner’s agent or himself, and delivered to him about the middle of next week, should a cow be selected with a calf the price will be $60.00. These cattle being my own individual property, I am only binding and obligating myself as to this account and no other obligations of said firm.
“This done and signed this 21st day of May, 1920.
(Signed) “CHAS. DALE.”

The corporation answered admitting the indebtedness, and averred that the corporation had been placed in the hands of a receiver, by whom all of its property had been distributed, and that the debt was extinguished.

Charles Dale answered denying the indebtedness; especially pleaded that the written memorandum referred to by plaintiff as the basis of his claim against him, was not a guarantee of the debt of Charles Dale & Son, Inc.; that the same was wholly without consideration, gratuitous, and represented nothing more nor less than a gift to plaintiff had he seen fit to accept the favor.

He alleges that he had the cattle penned according to the arrangements made, but that plaintiff failed to avail himself of the gratuitous offer, and that after the cattle remained in the pasture for several days beyond the time allowed plaintiff to exercise his option, that the cattle were turned out on the open range where they still are, excepting several head that had died.

That plaintiff had not placed him in default, and that plaintiff, having allowed two years to pass without indicating whether or not he would select the cattle, had been guilty of laches and that the contract could not be equitably enforced, etc.

This action was brought February 17, 1922, and trial was had on June 2, 1924, and judgment was rendered against the corporation for the amount claimed, and in favor of Charles Dale rejecting plaintiff’s demands, and plaintiff appeals.

On the trial, the instrument quoted above was offered and filed in evidence; proof was made of the balance due on open account by the corporation, and it was admitted that the corporation had been in the hands of a receiver, and had no property.

The testimony further established that the herd from which plaintiff was to select the cattle consisted of seventy or eighty head, less some that had been sold to other parties; that it was agreed that plaintiff would call ht defendant’s farm on the following Tuesday and would select the cattle, which were to be shown by Clarence Dale, a son of defendant. It is further established that plaintiff called at defendant’s place to select the cattle on the date fixed.

As to what occurred at the time plaintiff called to select the cattle the testimony is conflicting, but we find that the preponderance of the evidence shows that plaintiff was not shown the entire herd by Clarence Dale, representing the defendant, but that plaintiff made no complaint, and that when he left without having selected the cattle he stated that he would wait and see the defendant.

The evidence fails to establish whether or not plaintiff ever called upon defendant with relation to the matter after his trip to defendant’s farm; and defendant admits that he did not take the question up with plaintiff; he states, however, that the cattle were kept in the pasture for some time for plaintiff’s inspection, and that later they were turned out on the range.

OPINION

The case is presented by plaintiff upon the theory that the instrument evidences an agreement analogous to a promise of payment of a debt in commodities, and when the commodities, not having been delivered on the date fixed, that defendant lost the right to pay in commodities and the obligation became one solvable only in money.

The agreement is unusual, and the parties have not cited any precedents, and we have not been able to find any case that could be said to be analogous.

Whatever may be the denomination of the agreement, whether the promise to pay the debt of another, which the evidence shows was not fixed at the time of the agreement, but which could be easily ascertained, or a guaranty, we , are of the opinion that the stipulation providing that the creditor would select the cattle, was in its nature a suspensive condition, or condition precedent to delivery, (Art. 2436, C. C.), and that, in view of the fact that plaintiff left the matter of selection open after he had been shown some of the cattle by defendant’s son, the defendant could not be said to be in default.

On the other hand, if the defendant was in default, we are of the opinion that the action of plaintiff should have been one in damages.

The judgment is affirmed.


text:
    No. 2536
    Second Circuit
    JOSEPH P. CLEVENGER v. SOLLIS B. MAYER
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Sales—Par. 79, 152, 214.
    In view of Articles 2520, 2521 and Par. 3 of Article 1847 of the Civil Code, one who, after discovering the defects in the mules completed the contract of purchase by executing and delivering the notes and carried the mules to his camp and put them to work, cannot resist the payment of the notes by claiming that he was deceived by the representation of the seller.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. Leven L. Hooe, Judge.
    This is a suit on six promissory notes executed and signed by defendant- made payable to his own order and by him endorsed in blank. The defense was want of consideration.
    There was judgment in favor of the plaintiff as prayed for and defendant has appealed.
    Judgment affirmed.
    K. Hundley, of Alexandria, attorney for plaintiff, appellee.
    Nachman and Wahlder, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This is a suit on six promissory notes each for the sum of ¡¡>50.00, bearing 8% per annum interest from their date until paid, all dated September 19, 1924, executed and signed by defendant and made payable to his own order and by him endorsed in blank.

Defendant, in answer, admitted the execution and delivery of the notes. He resists the action and defends the suit on the ground that the consideration of the notes failed.

There was judgment in the District Court in favor of the plaintiff for the full amount sued for and defendant has appealed.

OPINION

In the month of September, 1924, the defendant purchased two mules of plaintiff at the price of $350.00. The exact date of the sale is not shown, but we gather that the trade was made on Sunday, September 18th. The defendant paid $50.00 in cash at the time of the sale and on Monday, September 19th, he executed and delivered to plaintiff the six notes sued on, for the balance of the purchase price.

The defendant resists payment of these notes on the ground that the mules proved worthless and unfit for the use for which he purchased them and that therefore the consideration of the notes failed.

In answer defendant especially alleged that plaintiff sold him the mules under an express warranty and guarantee that they were sound and entirely free from hidden defects and without redhibitory vices; that they were in good condition and capable of doing the hardest kind of logging work; that both mules died within eight weeks of the time when he purchased them; and that the mules were crippled, patched up and afflicted with certain diseases and redhibitory vices which rendered them worthless; that while the mules were on their way to his logging camp all said defects and redhibitory vices made their appearance and that defendant notified the agent of plaintiff in Alexandria, Louisiana, of the bad condition of the mules and that he was told by said agent to keep them until 'plaintiff came; that when he found the mules could not do the work for which they were intended, he ceased trying to work them, took the best of care of them, notwithstanding which fact they died; that he did not tender the mules to plaintiff because plaintiff was absent from the state of Louisiana; and in paragraph twelve of his answer he says;

“Your respondent shows that by reason of the fact that plaintiff warranted the mules sold to your respondent to be good, sound and free from hidden defects, diseases or redhibitory vices before and at the time of the sale and a reasonable time in the future, and because the mules, to the knowledge of plaintiff, and in fact, were unsound and afflicted with hidden defects and redhibitory vices, which hidden defects and redhibitory vices made themselves apparent immediately after the sale, the notes herein sued upon * * * are void and invalid for want of consideration; that the consideration for that portion of the price herein sued for has failed, and that therefore nothing is due plaintiff.”

He specifically pleads that the mules were warranted and guaranteed to him to be entirely free from any hidden defects and without any redhibitory vices, and that because said mules were unsound and afflicted with hidden defe'cts and redhibitory vices the consideration of the notes has failed.

It will be .noted that defendant does not set out what the hidden defects or redhibitory vices the animals were afflicted with nor does he allege that they died as the result of such vices.

He does allege, however, that the hidden defects and vices rendered them unfit for his use.

Article 2521 of the Civil Code, under the general heading “Of the Vices of the Thing Sold”, reads as follows:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

So far as the testimony shows, the mules were not afflicted with any vice or defect which was not perfectly apparent to even the most casual observer; and while the plaintiff and his two witnesses, Mr. Rush and Mr. Head, all testify that the mules were sound and in good condition, we are convinced that they were crippled and in bad condition at the time the sale was made. However, we are not convinced that plaintiff or his witnesses knew that to be true.

Plaintiff testified that he told defendant that the mules were free from diseases or hidden defects and that they were sound. ■ The witnesses he called had worked the mules up to about July before the sale in September, and both testify that they were good logging mules and free from defects, except that one of them had been afflicted with “swinney” but was well. The mules, it seems, were worked up to June or J.uly and were put in a stable at Alexandria where they remained without exercise until the sale. Whether plaintiff made any careful inspection of the mules after that date or not does not appear; but from all the testimony we are convinced that he was not aware that they were in bad condition at that time.

It is clear that he practiced no intentional deception and that he concealed nothing from the purchaser. His representations were that the mules were sound and free from hidden defects and diseases and there is nothing to indicate that he was not honest in these representations.

Defendant’s place of business is some sixty miles from Alexandria where the mules were when the sale was made. They were taken from the stable on Sunday and an employee of defendant started with them, riding one and leading the other, to defendant’s camp; when the mules reached Willow Glen, which is a place about four or five miles from Alexandria, defendant was there; the mules were there inspected by him and a number of other people. The defendant himself says that when they got there one of the mules was crippled; that his foot had been split open and it looked like foot disease; that the other mule was “just loose all over and crippled in the hind legs; wobbly, loose in the back and stringy”; that the black mule was loose all over; that they could not work; that they both limped and that he discovered that “on the way down”.

The testimony shows that defendant made a critical examination of the mules at Willow Glen and that he borrowed a knife and made an examination of the mule’s foot; that there were a number of persons there and all of them saw and discussed the condition of the mules in the presence of defendant. Several witnesses testify that the crippled condition of the mules were perfectly apparent to even a casual observer.

This was on Sunday afternoon. The mules were then on their way to defendant’s camp. The defendant, seeing the condition of the mules, went back to Alexandria that night and saw plaintiff and told him of their condition. He says that plaintiff told him that it was all in his imagination and that if the mules were not all right to bring them back. Defendant had, at that time, paid $50.00 in cash on the price but had not signed the notes. He signed the notes and delivered them to plaintiff later on.

After inspection of the mules at Willow Glen on Sunday afternoon and discovery of the defects, the animals were sent on to defendant’s camp where they were put to work. All the witnesses testify that on account of this crippled condition they could not work. Some of them say that the mules could have done light work but they could not do heavy hauling, and defendant himself says that they could not work on account of this crippled condition.

At the time they were examined by defendant and found to be in bad condition, plaintiff was in Alexandria, five miles away; but defendant says he did not return the mules and demand rescission of the sale but merely informed plaintiff of their condition, and subsequently signed the notes.

The testimony shows that defendant is a man of mature years and for some eight or ten years at least he has been engaged in farming and logging, and this taken in connection with the fact that he personally inspected the mules for himself leads to the conclusion that he possesses some knowledge as to the fitness and value of mules. We must therefore assume that in purchasing these mules he was guided by and acted upon his own independent judgment and not upon plaintiff’s warranty.

Paragraph 3 of Article 1847 of the Civil Code reads as follows:

“A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary' attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other.”

The case of Forsman vs. Mace, 111 La. 28, 35 South. 372, involves the sale of a tract of timber and a logging outfit including some oxen which it was later claimed were in bad condition, and the court said:

“If the oxen are as bad off as plaintiffs and some of their witnesses depict them, plaintiffs have but themselves to blame for buying them. They were given a full opportunity to inspect them.”

As to inspection of goods purchased, see:

Forsman vs. Mace, supra.

Civil Code, 1847, par. 3.

Civil Code, 2520, 2521.

Richardson vs. Johnson, 1 La. Ann. 389.

“Thé vendor does not warrant against an apparent defect which might have been discovered by simple inspection unless it be shown that fraudulent means were used to conceal it at the time of the sale.”

Martin vs. Price, 3 La. Ann. 4.

“The general rule is that the vendor is bound to good faith and if he knows the article offered for sale to be defective he is bound to state the defects. The exception to -this rule is that when the article is susceptible of convenient inspection and examination, the purchaser is bound to make and abide by such an examination.”

Huntington vs. Lowe, 3 La. Ann. 777.

In the case of Szymanski vs. Urquhart, 5 La. Ann. 491, it was stated:

“Where the defect in .an article sold is apparent upon inspection, it affords no ground for an action in warranty.”

In the case of Hoosier Realty Co. vs. Caddo Cotton Oil Co., 136 La. 328, 67 South. 20, the court refused to recognize this doctrine for the reason that:

“The seed sold could not have been conveniently inspected at the tiihe of the sale as they were not segregated from other seed in the same house. The sale was of a thing indeterminate in itself.”

The same rule has been applied in cases of warranty' and courts have held that even in cases where there was no warranty the seller in case of eviction of the purchaser is liable to a restitution of the price. But after laying this rule down as a general principle it formally announces the exception that it shall not be the case where the buyer at the time of the sale was aware of the danger of- eviction and purchased at his peril and risk.

“In the application of this law this court has frequently announced that where the vendee was aware of the defects of his article and therefore purchased at all hazards he was entitled to no claim by reason or eviction.”

Citing, Civil Code, 2505.

Meyer vs. Farmer, 36 La. Ann. 785 (789).

In the case of Fee vs. Sentell, 52 La. Ann. 1957, (1964), 28 South. 279, the organ of the court in the body of the opinion said:

“The buyer in our judgment is without the right to a diminution of the price for any defect discoverable on simple inspection.”

In the case of Rochi vs. Schwabacher & Hirsh, 33 La. Ann. 1364, (1368) the court quoted approvingly and applied the following doctrine laid down by the Supreme Court of the United States in the case of Slaughter’s Administrator vs. Gerson, 13 Wall. 379:

“The misrepresentation which will vitiate the contract of sale, and prevent a court of equity from aiding its enforcement, must relate to a material matter, constituting an inducement to the contract, and respecting which the complaining party did not possess at hand the means of knowledge; and it must be a misrepresentation, upon which he relied, and by which he was actually misled to his injury.
“Where the means of knowledge are at hand, and equally5 available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s misrepresentations.”

And our court said:

“These considerations have also shaped our own jurisprudence on this subject, and have guided our Supreme Court in the conclusions reached in many cases involving similar issues, which cases we have i carefully examined, and by which we have been led to the disposition which we make of this controversy.”

Decuir vs. Packwood, 5 Mar. 306.

Clark vs. Lockhart, 10 Rob. 5.

Huntington vs. Lowe, 3 La. Ann. 379.

Szymanski vs. Urquhart, 5 La. Ann. 491.

Holland vs. Toole, 6 La. Ann. 426.

Mure vs. Donnell, 12 La. Ann. 369.

The case reported in 13 Wallace 379,. cited above, is followed in McClure vs. Glady Fork Lumber Co., 183 Fed. 76, and in King vs. Lamborn, 186 Fed. 21; Vanderbilt vs. Bailey, 188 Fed. 691; Guntley Mfg. Co. vs. Keller Mfg. Co., 173 Fed. 319.

See: 149 U. S. 27, and 192 U. S. 242.

In the case of Shapiro vs. Goldberg, 192 U. S. 232 (242), the court said:

“When the means of knowledge are open and at hand or furnished to the purchaser or his agent, and no effort is made to prevent the party from using them, and especially when the purchaser undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations of his vendor.”

In 35 Cyc. 376, the rule is thus stated:

“While as a general rule a general warranty will cover all defects it is also the rule, except in certain cases hereafter stated, a general warranty does not cover an obvious defect.”

According to defendant’s testimony the animals purchased by him were' carefully inspected and their defects discovered. After discovering the defects he completed the contract by executing and delivering the notes sued on and carried the mules to his camp and put them to work. He cannot now say that he has been deceived by the representations of the plaintiff.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.