text:
    No. 11,420
    Orleans
    MALONEY v. GOELZ
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Prowell, McBride & Ray, by Stanley W. Ray, of New Orleans, attorneys for plaintiff, appellant.
    Walter S. Lewis, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is engaged in the sale of automobiles. He sold to New Orleans Rent-A-Car Company a new Hudson car. The sale was made for part cash and, for the balance a note was given, which note was secured by a chattel mortgage. The Rent-A-Car Company rented the aur tomobile to Albert Goelz, minor son of defendant. Through the negligence of Goelz the car was demolished. It is sought to hold defendant liable under R. C. C. 2318, which provides that:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.

“The same responsibility attaches to the tutors of minors.”

Liability is denied on several grounds:

First, that at the time of the renting of the car and of the accident defendant and his minor son were not residing together.

Second, that the loss resulted from a breach of contract, rather than from a simple tort and that, therefore, the codal provision above quoted has no application.

Third, that the damage to the car was not the proximate cause of the loss sustained by the mortgagee, 'the proximate cause being the inability of the mortgagor to pay the debt.

Fourth, that at the time of the renting of the car a charge of twenty-five cents was made, in consideration for which liability for such loss was released.

Fifth, that the holder of a mortgage has no right to proceed directly against a tort-feasor who injures or destroys the property mortgaged.

In support of the first ground of defense, it has been conclusively shown that about three months before the catastrophe defendant had been locked out of his family domicile and had resided elsewhere until about three months after the accident, or for about six months in all.

It will be noted that the Codal provision is to the effect that liability of the father depends upon the residence of the minor. In Mullins vs. Blaise, 37 La. Ann. 92, a father sought to escape liability for the tort of a minor by showing that he (the father) was momentarily absent at the time of the accident. The Supreme Court held that momentary absence was not sufficient to relieve the father from liability, and in that case stated that our Code differed from the French Code in that under the French Code “parental responsibility attaches only in case the father ‘shall not prove that- he was unable to prevent the act which gave rise to the damage’.” It would thus appear that the Supreme Court in the Mullins case intended to distinguish the French Codal provision from ours and to state that, whether or not the parent had it within his power to prevent the act is of no importance under our Code.

This Court, in Taylor vs. Doskey, 1 La. App. 399, said:

“An unemancipated minor, whose father is living, and who has not been apprenticed or placed in care of others, can have no legal residence other than that of his father.”

This holding is directly in line with the provisions of Article 39, R.C.C., to the effect that “the domicile of a minor not emancipated is that of his father, mother or tutor * *

The question of the liability of the father who is not present has been many times discussed by our courts, which have always held that the Codal provision, making the parent liable for the torts of the minor, is in derogation of common right, and therefore should be strictly construed. Miller vs. Meche, 111 La. 143, 35 So. 491; Magavero vs. Centano, 6 Orleans App. 394. But the Supreme Court of this State, in Toca vs. Rojas, 152 La. 317, 93 So. 108, 111, seems to have settled once and for all the question of whether or not a parent who is not residing with the minor, though not separated from the other parent by some act of the law is thus relieved of liability under the Codal provision. That case involved a question of pleading. The plaintiff, who sought to hold the father liable, did not allege that the child resided with the father. The Supreme Court on first hearing held that it was necessary to make such an allegation. However, a rehearing was granted, and on rehearing it was held that no such allegation was necessary, the court saying:

“It, therefore, being the law of the case that the minor, John Rojas, could have no other residence than that of his father that residence continued until changed in some manner provided by law. If, as a matter of fact, there had been any change in the legal requirement and in the legal status as to residence, or if for any reason the parental authority and control of the father over his son had been suspended, interrupted, or destroyed, that fact certainly was peculiarly within the knowledge of the defendant, and was clearly a matter to be urged in defense of the action.”

' It would seem from this language that a father, as a matter of defense, could show that the son was not residing with him, but it appears, from the dissenting opinion rendered by Mr. Chief Justice Provosty, that the majority opinion intended to hold that the father could not relieve himself from this liability except upon showing a legal separation from the mother, and that the fact that he and the child did not reside together resulted from some act of the law. The dissenting opinion of Judge Provosty seems to interpret the majority opinion as so holding, and such a holding seems to us to be most reasonable. Otherwise a person attempting to hold the father liable under the Codal provision would find himself under the necessity of investigating and determining whether or not the father was within his rights in leaving the family domicile. In other words, in such a suit as this the courts would have to determine the question of whether or not the father should have been at home before they could decide whether or not he was liable. We think the better reasoning requires us to hold that a father is liable unless he can produce evidence to show that, by some act of the law, the residence of the minor has been made different from his own.

However, upon considering the second ground of defense urged, we believe that no liability exists in the father. It is true that, under the Codal provision, the parent is responsible for the torts of a minor, but it seems to us that there is a distinction between a simple tort and a tort which occurs as a result of or which may be the cause of a breach of contract. When the Rent-A-Car Company allowed young Goelz to take out a car it entered into a contract which required him to safely return it. His failure to do so constituted a breach of that contract. Conceding that his negligent act in driving the car was the cause of the breach, still the contractual obligation and the tort liability are so inseparably connected that, if we could hold that the father is liable in this case, we would in effect be holding the father liable for the breach of the contract of the minor. In Doumeing vs. Haydel, Tutor, 9 La. 446, we find a case which we think is complete authority for the position of defendant on this point. There it was sought to hold the tutor of a minor liable under the following facts: The plaintiff had made a contract with the minor under which plaintiff furnished to the minor a cart and horses and a stock of goods. The minor was to act as peddler and to sell the stock of goods and to make returns to the plaintiff. The goods were .sold, but the minor, instead of making proper return, gave to plaintiff only a small portion of the purchase price of the goods and embezzled the balance, and sold the cart and horses and embezzled the sale price thereof. The court disposed of the question in a very few words, as follows:

“The counsel for. the appellant relies on a provision in the Louisiana Code, article 2297, which renders the mother (after the death of the father) responsible for the damage occasioned by her minor children, residing with her, &c.

“This article is found in the code under the head of quasi offenses, and it would be absurd to extend its interpretation and application to the contracts of minors.”

If, instead of neligently wrecking the automobile, the plaintiff in the case before us had sqld it and embezzled the proceeds, it is manifest that the Doumeing case would be complete authority for us to hold the father free from liability. Suppose, in the Doumeing case, that, instead of selling the horses and wagon and embezzling the proceeds, the minor had wrecked the wagon and killed the horses, would we not be equally justified in saying that the loss was the result of the breach of contract, though the breach was caused by a tort?

For these reasons we feel that there is no liability in the father, and we find it unnecessary to consider the other questions presented. Counsel have asked us to pass on the question of the rights of the holder of a mortgage to claim damage from him who destroys or damages the property mortgaged. We do not feel that we are at liberty to do so, as we cannot pass upon moot questions, which this question has become in view of our decision above announced.

The trial court held that the father was not liable, and for the reasons above given.

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


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,300
    Orleans
    DEL BUONO v. ILL. CENT. R. R. CO. ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    H. W. Kaiser and J. H. Hammel, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff sues for injuries sustained on May 2, 1926, while he was riding in an automobile which was in collision with a train of defendant railroad company at a road crossing in Jefferson Parish. Defendant, Gustave Adolph, was the owner of the automobile, which had been hired by employers of plaintiff to take plaintiff and certain other persons to view land which was for sale. Alleging that the collision was caused by the joint negligence of the railroad employees and the driver of the automobile, plaintiff sues both the railroad company and the owner and lessor of the automobile.

The case was tried by a jury, which rendered a verdict in favor of defendant railroad company, but which was not able to agree as to the liability, vel non, of the defendant Adolph, and reported a mistrial as to that defendant. So far as the record shows, the case against Adolph was never again tried, and since no judgment was rendered, there was no appeal, and that matter is not now before us, the sole question involved here being whether or not there is any liability in the defendant railroad company.

Plaintiff was an employee of Johness Realty Company. He had interested a prospect in certain land in Jefferson Parish and on the Sunday afternoon in question he and another employee of the realty company, one Jackson, desired to take the prospect to view the land. The realty company had an arrangement with defendant Adolph under which Adolph furnished on request automobiles and drivers whenever called on to do so. The party visited the land, but did not get out of the automobile, as a heavy i'ain had come up. After standing near the lots which the salesmen were trying to sell to the prospect, it became apparent that the rain was going to continue and the party decided to return to New ’Orleans. In doing so they chose a route which crossed two tracks of defendant railroad company. The first track was crossed in safety. About one hundred feet beyond was the second track. On the second track the collision occurred. The train had approached from the right side of the automobile. There is considerable dispute as to whether the train struck the automobile or the automobile ran into the side of the locomotive. We are of opinion that a determination of this dispute is not necessary.

Plaintiff was in the rear of the automobile on the left side. All of the windows on the right side, from which the train approached, were closed. The downpour was terrific. It was about four o’clock in the afternoon and ordinarily no lights would have been required, but, as a result of the extraordinarily heavy rain, it was more or less dark.

The record convinces us beyond the shadow of a doubt of the following facts:

First. The electric locomotive headlight was burning.

Second. The automatic locomotive bell was ringing.

Third. The locomotive whistle had been blown several times while the locomotive was approaching the crossing.

Fourth. The engineer was on the lookout, but was prevented by the locomotive boiler from seeing the automobile which had approached from the other side.

Fifth. The engine fireman was not on the lookout, as he was engaged m firing the boiler.

Sixth. The train was traveling at a speed of between fifteen and twenty-five miles an hour.

The above facts are practically admitted. It is contended, however, that liability in the railroad company results from the fact that the range of the headlights was so obstructed by the terrific downpour that the engineer could see only a short distance ahead, and that the speed was such that the train could not be stopped within the distance illuminated by the headlight. In other words, it is contended that under all circumstances and in all localities a locomotive must be operated only at such speed as will permit of its being brought to a complete stop within the distance illuminated by its headlight. It is further contended that, even if the driver of the automobile was negligent, his negligence could not be imputed to Del Buono, riding-in the back of the car, and that therefore, if it was negligence to operate the locomotive at a, speed greater than would permit of its being stopped within the distance to which we have referred, defendant company would be liable for the resulting accident. As authority for the first proposition as to the speed at which the locomotive should have been operated under the circumstances, plaintiff cites Peart vs. The Orleans-Kenner Traction Company, No. 10,832 of the docket of this court, 11 La. App. 11; 123 So. 822, 824. As authority for the second proposition to the effect that the negligence of the driver of an automobile cannot be imputed to the persons riding with him, we assume that plaintiff relies on Churchill vs. T. & P. R. Co., 151 La. 726, 92 So. 314; Daull vs. N. O. Ry. & L. Co., 147 La. 1012, 86 So. 477, and other similar cases. Plaintiff’s entire contention, and his only specification of error in his brief, is to the effect that the lower court refused to give the following instruction to the jury:

“That it is the duty of a railroad when operating its trains in the day time when the vision is obscured by the density of the atmosphere or foggy on. account of rain to have the headlight of its train burning and that the train should not be operated so rapidly that it could not be stopped by the use of ordinary means within the distance in which an automobile could be seen or discovered approaching the track by the glare of the headlight.”

We believe that the doctrine of the Peart case is not applicable here, because it is apparent that, even if that doctrine does apply to the operation of' a steam railroad in the open country, under ordinary conditions, nevertheless, it is manifest that, under the facts of this case, the engineer would not have been able to see the automobile, even had it stopped only ten feet from the track, because his view toward the side of the track from which the automobile was approaching was obstructed for a space of about three hundred feet by the locomotive boiler. In other words, had the automobile reached a point ten feet from the track at any time after the locomotive reached a point three hundred feet from the crossing, the automobile would not have been within the range of vision of the engineer, due to the fact that the boiler would have entirely cut off his view. Assuming, then, that due to atmospheric or other conditions, the engineer’s vision was obstructed or obscured, or limited, and assuming that the doctrine of the Peart case is otherwise applicable, which the writer does not concede, it is evident that the failure of the headlight to illuminate a distance of three hundred feet or more was not the proximate cause of the accident, because, even had it been on a clear day, the engineer could not have seen the automobile approaching, as it did, from the other side. It is not contended that the automobile was standing near the track while the train was more than three hundred feet away, but simply that it arrived only an-instant before the train, and after stopping, crashed into the front end of the train. Even if we assume that the engineer could see only fifty or sixty feet on account of the dense atmospheric condition, the failure to see further was not a contributing cause to the accident. Unless, then, we are prepared to hold that the defendant was negligent in having its locomotive so designed, we are forced to the conclusion that the fact that the rain obstructed the vision of the engineer had no causal connection with the accident, so far as the operatives of the train are concerned.

It appears to the writer, however, that the doctrine of the Peart case, for other reasons, has no application here. The train was operated in the open country over its private right of way and the crossing on which the accident occurred was not a main or much-used thoroughfare. In Vincent vs. M. L. & T. R. R. & S. S. Co., 48 La. Ann. 933, 20 So. 207, 209, 55 Am. St. Rep. 287, the court said:

“It has been said in other jurisdictions that trains must be run with speed on dark nights and on misty days, and that doing so raises no inference of negligence in the absence of special facts, going to call for particular precaution.”

To require of trains in the open country that they shall at all times operate at such speed as will permit of their being stopped within the distance illuminated by their headlights would seriously interfere with train schedules, in which the general public is as much interested as are railroad companies. In Brown vs. R. R. Co., 42 La. Ann. 350, 7 So. 682, 683; 21 Am. St. Rep. 374, our Supreme Court cited with approval Continental Improvement Co. vs. Stead, 95 U. S. 161, 24 L. Ed. 403, in which the Supreme Court of the United States said:

“Prom the character and momentum of a railroad train and the requirements of public travel by means thereof, it can not be expected that it shall stop and give precedence to any approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train.”

It follows, then, that an engineer may approach a crossing with the full expectation that those who wish to cross the track will have due regard for the superior right of the train.

Further points of differentiation between this and the Peart case are that, in the Peart case, the court found that “this particular crossing was unusually dangerous,” and there the court said, with reference to the whistle, “the evidence creates a serious doubt as to when and how it was blown.”

Another feature which distinguishes this case is that in the Peart case the view was obstructed by a fog, which appears to have been impenetrable beyond ten or fifteen feet, while here it was only a very severe rain, -and it is impossible to believe that a rainstorm, no matter how severe, will prevent those in an automobile from seeing the headlight of an approaching train a sufficient distance away to permit of their stopping and allowing it to pass. The engineer knew that he could see by his headlight about sixty feet ahead of his locomotive, and he was justified in assuming that a person looking towards the headlight could see it, while it was several times that far away. It is a well-known fact that a person looking towards a light can see it much farther away than the space illuminated by its rays. This is true in a rainstorm, though it is true to a lesser degree in a fog.

We do not think it necessary to consider further the question of whether there was contributory negligence in plaintiff, in that he did not take independent precautions of his own, in view of our holding that the defendant company was guilty of no negligence.

Believing as we do, that the railroad company was entirely free from fault, it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


author: WESTERFIELD, J.

text:
    No. 11,456
    Orleans
    DENDINGER, INC., v. EMUY & EICHORN and GLOBE INDEMNITY CO.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    J. D. Dresner, of New Orleans, attorney for plaintiff, appellant.
    Monroe & Lemann, of New Orleans, attorneys for exceptor.
    Soloman S. Goldman, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

There is no dispute as to the facts in this case. Plaintiff sold and defendant bought certain lumber for the price of $1,775.38, the- contract of sale containing the following stipulation:

“7 per cent discount will be allowed if paid within 10 days from date of delivery; 5 per cent if paid by the 15th of the month following; net to the last day of the month following when, if not paid, 10 per cent will be added to the above price.”

The lumber was used by the purchasers in connection with the erection of a building under a building contract bonded by the Globe Indemnity Co. Emuy & Eichorn, defendants, failed to pay for the lumber, whereupon demand was made upon the surety, the Globe Indemnity Company, who paid plaintiff the principal amount of the contract, $1,775.38, but declined to pay the additional 10 per cent or $177.54. The payment was made without prejudice to the right of plaintiff to claim the additional amount. This suit is brought for $177.54, plus 10 per cent attorney’s fees under Act 225 of 1918.

The defense is that the stipulation upon which the suit is based is “usurious, illegal and unenforceable.” There -was judgment below in defendant’s favor and plaintiff has appealed.

The question • presented is whether a stipulation in a contract of sale to the effect that if the price is not paid by the end of the month following that in which the sale is made, 10 per cent will be added to the price, is valid and enforceable. The Civil Code provides:

Art. 2439:

“The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.

“Three circumstances concur to the perfection of the contract, to-wit: the thing sold, the price and the consent.”

Art. 2456:

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price .thereof, although the object has not yet been delivered, nor the price paid.”

Art. 2464:

“The price of the sale must be certain, that is to say, fixed and determined by the parties.

“It ought to consist of a sum of money, otherwise it would be considered as an exchange. * * *”

Art. 1935:

“The damages due for delay in the performance of an obligation to pay money are called, interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

Art. 1938:

“All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.”

Art. 2554:

• “When the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term.”

Plaintiff’s position is that the amount claimed in this suit is not a penalty but a part of the purchase price of the lumber which was sold on credit, subject to reduction “depending entirely upon the time of payment selected by the purchasers,” and we are referred to a number of authorities: 39 Cyc. 926, 927; Hogg vs. Ruffner, 1 Black (U. S.) 115, 119, 17 L. Ed. 38; Mills vs. Crocker, 9 La. Ann. 334; Robbins vs. W. W. Page & Son et al., 10 La. App. 207, 120 So. 683, 684; Gen. Motors Accept. Corp. vs. Taylor, 173 Ark. 1180, 294 S.W. 386, and many others, all to the effect that a vendor may charge an amount greater than the • highest conventional rate of interest, permitted by law, for an article sold on credit, above what would have been charged had the sale been for cash, without being guilty of usury, because, as was held in one of the cases cited, “A vendor may prefer $100.00 in hand to double the sum in expectancy and a purchaser may prefer the greater price with the longer credit.” Hogg vs. Ruffner, 1 Black 115, 17 Law Edition 38.

In the case of Robbins vs. W. W. Page & Son et al., supra, decided by the Court of Appeal for the Second Circuit, April 6, 1929, Page & Son sold to Robbins certain supplies with the understanding that the price would be fixed at 10 per cent above the cash price and in disposing of the charge that the contract was usurious the court said:

“It is well settled that usury cannot be predicated upon the fact that property is sold on credit at an advance in price over what would be charged in case of a cash sale, so long as it appears that the price charged is in fact fixed for the purchase of goods on credit with no intention or purpose of defeating the usury laws, although the difference between the cash price and the credit price if considered as interest amounts to more than the legal rate.”

In all of the cited cases the question presented involved an increase in the selling price of an article because of the credit extended. In the case before us the 10 per cent increase in the price is dependent upon the delay in payment and is independent of the fact that the lumber was sold on credit. It seems clearly to impose an additional penalty for failure to pay by the “last day of the month following” and in that sense comes within the Codal definition of “interest” (C. C. art. 1935) as damages due for the delay in the performance of an obligation to pay money. For example, if the purchase price had been met the day before the last day of the month following no penalty would have been due, but if paid one day later an additional sum of $177.54 would, under the terms of the contract, be payable. In fact, interest at the rate of- 10 per cent for one day would have been imposed. In Griffin vs. His Creditors, 6 Robinson 216, the court said:

“There is, in our law, a marked difference between the damages which may be stipulated for the breach of an obligation to pay money, and an obligation to give a thing or perform an act. Where the object of a contract is anything but the payment of money, the parties may determine the sum that shall be paid as damages for its breach, and courts of justice will not interfere, with such agreements; but, on the contrary, will lend their aid to carry them into effect. Civil Code, Art. 1928. But it is otherwise, when the contract is to pay a sum of money. The law has provided, that no damages exceeding ten per cent on the amount that was to be paid, can be stipulated. Article 1929 of the Civil Code declares, that ‘the damages due for delay in the performance of an obligation to pay money, are called interest. The creditor is entitled to these damages without proving any loss; and whatever loss he may have suffered, he can recover no more.’ Article 2895 of the same Code, provides, that ‘interest is legal or conventional; if conventional, it cannot exceed ten per cent (now eight per cent)’. Any contract, or agreement therefore, into whatever shape it may be thrown, which stipulates for more than ten per cent damages, or interest, for the delay to pay money, is illegal. I Pothier, Oblig. No. 170. 6 Toullier, No. 266 and No. 809."

See also Stone, Syndic vs. Tew, 9 Rob. 193, and Succession of Stafford, 12 Rob. 178.

For the reasons assigned the judgment appealed from will be affirmed.


author: HIGGINS, J.

text:
    No. 13,143
    Orleans
    LANGHOFF v. COHEN
    (December 16, 1929. Opinion and Decree.)

      Sanders, Baldwin, Viosca & Haspel, of New Orleans, attorneys for plaintiff, appellee.
    Frederick G. Veith, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff seeks to recover the sum of $245 with 8 per cent - interest from March 1, 1929, until paid and 10 per cent additional as attorney’s fees, alleged to be due by the defendant, under the provisions of a written lease and seven rent notes signed by the defendant, dated September 7, 1928. The lease was for a period of twelve moths, commencing October 1, 1928, and defendant paid five of the rent notes but vacated the premises and refused to pay the remaining notes.

Defendant denies liability on the ground that the property covered by the lease was rented for the purpose of carrying on a furniture business and that the front door was too small to permit furniture to be carried in and out, that it was agreed between plaintiff and defendant, before and after the lease was signed, that the front door would be made larger in order • to accommodate defendant’s business; that upon plaintiff’s failure to have this work done, defendant protested and plaintiff’s real estate agent, Mr. Richards, agreed to abrogate the lease upon defendant paying the rent for the month of February, 1929.

There was judgment in favor of plaintiff for the full amount prayed for and de- | fendant has appealed.

The defense urged in this case is a special one and, ■ therefore, defendant bore the burden of proving it by .a preponderance of the evidence. The sole testimony offered by defendant is his own statement to the effect that the lease was abrogated as hereinabove stated. ’Plaintiff, his real estate agent, Mr. Richards, and his secretary, Miss Genella, deny the statements of defendant and their testimony completely rebuts defendant’s statements.

The judgment of the lower court is manifestly correct and it is therefore affirmed.


text:
    No. 12,081
    Orleans
    STATE OF LOUISIANA EX REL. JONES ET AL. v. CARRADINE ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Á. J. Wyly, of Lake Providence, attorney for Monroe W. Newman.
    Martin H. Manion and H. W. Kaiser, of New Orleans, attorneys for respondents, appellees.
    Henry & Cooper and A. M. Suthon of New Orleans, attorneys for relators, appellants.
   JANVIER, J.

Relators sue to set aside the result of an election of directors of the Standard Industrial Life Insurance Company, on the ground that two stockholders, Herbert J. Williams and Elliott A. Stewart were permitted to cast only two votes each although there was, at the time, fifty shares standing in the name of each on the hooks of the corporation.

Respondents reply that each of the two named stockholders really owned only two shares and that H. L. Jones, one of the relators, had, for illegal purposes, placed in the name of each of the two named stockholders forty-eight additional shares, because Jones owned more stock than, under Section 4, Paragraph (b) of Act 105 of 1898, he could legally vote.

That statute, which governs the organization and management of insurance companies, such as the Standard Industrial Life Insurance Company, in the section mentioned, provides:

(b) In the choice of directors, and at all meetings of the company, each ■ stockholder shall be entitled to one (1) vote for each share that he holds not in excess of one-tenth (1/10) of the capital.

As there were outstanding only five hundred shares of capital stock no one stockholder could vote more than fifty shares. Jones owned a great deal more than fifty shares. If all his stock could be voted, he could control the election. If he could vote only fifty shares he could not control it.

Respondents contend that the transfers by H. L. Jones to Williams and to Stewart were not the result of real sales and, therefore, constituted fraud on the other stockholders and on the general public which is interested in preventing violation of State statutes.

Relators question respondents’ right to contest the validity of the transfers, contending that they were made on the books more than one year before and that respondents are now estopped to attack their validity.

Relators had charge of. the hooks of the concern and respondents did not and could not know of the transfers as soon as they were made. The many court records offered in evidence show a consistent and persistent effort by respondents to prevent the voting of the said stock- at the election which is now being investigated, as well as at the previous annual election.

Section 32 of Act 250 of 1928 and Section 4 of Act 122 of 1926 are called to our attention as authority for the claim that each shareholder is entitled to a vote for each share under the general corporation laws of this State, and that, therefore, Williams and Stewart are entitled to vote the stock _ standing in their respective names.

This statute in 1928 is a general law and must yield to the special provisions of paragraph (b) of Section 4 of Act 105 of 1898, which, as originally enacted, as well as amended by Act 122 of 1926, limits the vote of each stockholder in a corporation of this kind to 10 per cent of the total stock no matter how much stock he may own. Since no stockholder could vote more than 50 shares, it would be a violation of the statute to permit one to do indirectly and by subterfuge what he could not do openly and directly. The question then is solely whether or not the transfers to Williams and to Stewart were bona fide.

The evidence shows that neither Williams nor Stewart had any financial responsibility. It further shows that each gave in payment for the stock a document reading as follows:

“December 29th, 1927.

“Due H. L. Jones Two Thousand four hundred dollars ($2400.00) for 48 shares of the Standard Industrial Life Insurance Company, Inc., and I hereby pledge the full number of shares of the aforesaid stock to H. L. Jones as collateral security for this note and do deposit certificate No. 63 for 48 shares with him as security.”

This document shows no maturity and does not stipulate for interest. Both suspicious omissions.

It also appears that Williams made and subscribed to an oath before a notary public to the effect that the forty-eight shares had been placed in his name solely for voting purposes.

It also appears that just before the prior election Jones had attempted to transfer to various members of his family the same stock, which he later transferred to Williams and Stewart, and which latter transfers are now the subject of this controversy. Jones could not transfer the stock to the members of his family because he discovered that there was a charter provision which prevented the transfer of stock to persons not already stockholders until it had been first offered to the other stockholders.

It is conceded that the result of the election would not have been changed except by permitting both Williams and Stewart to cast votes for the full number of shares standing in their names. If we hold that either is disqualified then the addition of the votes of the other would not change the rfesult, but all of the circumstances leave us convinced that the purported transfers to both Williams and Stewart were not bona fide, and we feel that the trial judge was correct in refusing to set aside the election.

As to Monroe W. Newman the record shows that he was successful in the court below and, therefore, cannot now be heard to appeal from a judgment in his favor.

For the reasons assigned the judgment appealed from is affirmed, at the cost of relators.


text:
    No. 11,310
    Orleans
    PAIRQUE ET AL. v. LAKE EUGENIE LAND DEVELOPMENT, INC.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    Merrick, Schwarz, Guste, -Barnett & Redmann, of New Orleans, attorneys for plaintiffs, appellants.
    Marcus & Corkern, of New Orleans, attorneys 'for defendant, appellee.
   JANVIER, J.

This matters comes before us on appeal from a judgment maintaining an exception of no cause of action and dismissing plaintiffs’ suit.

The petition alleges that plaintiffs had leased for trapping purposes certain lands of which defendants thought themselves to be the owners. The lease, which was made part of the petition, provided in paragraph ten:

“In the event Lessee should be legally ejected from any of the lands now leased due to the fact that the title of Lessor is defective, then Lessor shall compensate Lessee by payment to Lessee of the sum of fifty cents (50q) per acre for the lands from which Lessee is ejected, such payment to be as liquidated damages in full and complete settlement of all claims of any nature whatsoever which by any means may legally vest in Lessee by- virtue of such ejectment: Provided that the total amount to be paid by the party of the second part shall in no event exceed the sum of one thousand dollars.”

(The lease was typewritten, but the words in bold type above were written in in ink.)

The allegations in the petition at which the exception is particularly directed are contained in paragraphs VI, VII and VIII, the gist of which paragraphs is that, after petitioners, as lessees, had taken possession of the leased premises, certain other parties, claiming to be the owners of part of the leased land, notified lessees to vacate, and that lessees, after determining by title examination that the claim of these other parties was well founded, in order “to avert possibly dangerous results,” abandoned that part of the leased land which was claimed by the other parties, and “immediately notified the attorneys of the defendant herein of such dispossession and ejectment.” Exceptors contend that the rights of the lessees are controlled exclusively by R.O.C. art. 2704, which reads as follows:

“If the persons by whom those acts of disturbance have been committed, pretend to have a right to the thing leased, or if the lessee is cited to appear before a court of justice to answer to the complaint of the person thus claiming the whole or a part of the thing leased, or- claiming some servitude on the same, he shall call the lessor in warranty, and shall be dismissed from the suit if he wishes it, by naming the (person under whose rights he possesses.”

It is thus claimed that petitioners, not having alleged that they have been cited to appear before a court of justice, and not having alleged that they called defendants in warranty, have not set forth a cause of action.

The lease itself, at first reading, gives the impression that it was not intended by the parties that the lessees should have the right, on private or ex parte examination, to decide for themselves whether or not they would be justified in abandoning the premises. The insertion in the typewritten lease of the word "legally” in ink indicates that only ejectment by process of law should give rise to this right to the refund.

But if such was the intention, plaintiffs would be entirely without redress, and, assuming as we must, that their allegations are true, we would find them forced off the leased land because of defective title of their lessors, and yet powerless either to maintain their possession or to recover back their lease money. They have been ejected, if their petition is true, not as the result of legal proceedings into which, by a call in warranty, they might bring their lessors, but by force, and, in fact, we are told in the brief and in oral argument, at the point of a gun. Surely they were justified in leaving, and if they were justified in leaving, it is illogical to say that as a result of leaving they have lost their rights against exceptors, whose defective title, if the petition is ' true, is the cause of the ejectment.

But, say exceptors, plaintiffs are estopped to question the validity of the title of their lessors. The rule of estoppel contended for simply means that a lessee cannot, either to claim title himself, or to avoid the obligations of his lease, question his lessor’s title, but the rule does not go so far as to permit under pretense of its protection wrongs to be covered up and injustices to escape investigation. As the Supreme Court said in Harvin vs. Blackman, 108 La. 434, 32 So. 452, 456:

“It is very true that the courts have frequently recognized that a person who has entered into possession of property under lease from another will not generally be permitted during the continuance of the lease to impugn the lessor’s title, but this doctrine has numerous exceptions. Its application should be invoked in aid of working out equity, and not made to coyer wrong. Estoppels are not favored in the law, and, where there is reason even to suspect that they may be utilized for -purposes of oppression, the whole subject-matter from which they seek to exclude investigation should be thrown open to the light. It may be that plaintiff’s assertions are all wrong, and that defendant’s claim that he is estopped may be well grounded; but we feel that justice would be better subserved in this case by dealing with the question of estoppel at the end of a trial, after evidence adduced, than at the beginning of one, on unexplained papers. Succession of Francez, 49 La. Ann. 1740, 23 So. 254.”

Here the parties agreed that, in case of defective title and ejectment as a result thereof, a refund should be paid. If plaintiffs are estopped to show defective title, then that clause in the lease is meaningless.

Exceptors further contend that there is no proper allegation that notice of the claim of the third parties was communicated to them. They object to the allegation “that petitioners immediately notified the attorneys of the defendant,” contending that notice should have been given to the defendant or exceptor itself, and not to its attorneys. It appears that the attorneys-at-law of the exceptor are also its agents and attorneys in fact and have appeared for it throughout the negotiations. But even if the petition is defective by reason of insufficiency of allegation in Article VIII, from which we have above quoted, we find in Article IX of plaintiff’s petition the following; “that petitioners notified said defendant of this fact” (the ejectment). Surely this allegation is sufficient to permit of the introduction of evidence to show what notice was given.

We are of the opinion that the petition sets forth a cause of action, and therefore, it is ordered that the judgment appealed from be and it is annulled, avoided and reversed, and that this matter be remanded to the district court for further proceedings according to law.


text:
    No. 12,056
    Orleans
    WINTER GARDENS CANNERY, INC., v. HOFFMAN
    (December 16, 1929. Opinion and Decree.)

      Robert Hickerson, of New Orleans, attorney for plaintiff, appellant.
    John J. Kenney, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit for the sum of $215.55, based upon the following contract:

“April 1st, 1928.

“I, H. J. Hoffman hereby agree to accept 1200 pounds of Bean Seed from the Winter Gardens Cannery, Inc., at 17c per pound, and to use the said seed to plant 20 acres. I further agree to cultivate, harvest and deliver all of the beans produced on the above mentioned acreage to the Winter Gardens Cannery, Inc., when they are suitable for canning purposes. The time of harvesting and delivery to be specified by Winter Gardens Cannery, Inc.

“When above beans are delivered to Winter Gardens Cannery, Inc., they agree to pay me 2%c per pound, being first reimbursed for seed furnished me at 17c per pound.”

Defendant filed an exception of no cause of action, which was overruled, and thereafter filed an answer, which was in effect a general denial. After hearing the case upon the merits, judgment was rendered in favor of defendant, dismissing plaintiff’s demand. Plaintiff has appealed.

Ás we understand defendant’s position, it is that under the contract he was not obligated to pay for the bean seed unless and until he had made a crop of beans sufficient to pay for them. In other words, he was to plant the seed for account of plaintiff and if the result of his farming operations was ’successful the crop of beans raised from the seed was to be delivered to the plaintiff and the seed valued at $.17 a pound and the beans at $.02% a pound. A balance was to be struck and if in favor of defendant, was to be paid to him but if the crop of beans was not sufficient at a price of $.02% per pound to liquidate plaintiff’s account for seed at $.17 per pound, plaintiff was to suffer the resulting loss.

The Vice-President of the plaintiff company ’testified, without contradiction, that it was the intention of the parties that the bean seed should be paid for by defendant whether any crop of beans was raised or not, but that if a crop was raised plaintiff was to pay defendant $.02% per pound for all beans delivered under the contract.

The following articles of the Civil Code are of interest:

“* * * To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value * * * ” C. C. art. 1816.

“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.” C. C. art. 1950.

“When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.” C. C. art. 1951.

“Terms, that present two meanings, must be taken in the sense most congruous to the matter of the contract.” C. C. art. 1952.

“All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.” C. C. art. 1955.

“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.” C. C. art. 1956.

Our conclusion is that the contract sued on is susceptible of but one interpretation, that contended for by plaintiff, and that, consequently, the judgment appealed from is erroneous.

It is therefore ordered, adjudged and decree,d that the judgment appealed, from be and it is annulled, avoided and reversed, and that there now be judgment in favor of plaintiff, Winter Gardens Cannery, Inc., and against defendant, H. J. Hoffman, in the full sum of $215.55 with legal interest from judicial demand until paid and all costs.


text:
    No. 12,073
    Orleans
    DENNIS SHEEN TRANSFER CO., INC., v. MERTZWEILER
    (December 16, 1929. Opinion and Decree.)
    Beard & O’Keefe, and Alvin R. Christovich, of New Orleans, attorneys for plaintiff, appellee.
    R. W. Leche, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff is the owner of a truck and trailer which was in collision, at the corner of Laurel and Dufossat Streets, with a Ford Mbdel “T” touring car owned by the defendant and operated by his employee. The truck and trailer were on Dufossat Street going towards the river. The Ford car was going down Laurel Street, which, under the ordinance, is a right of way street.

The evidence convinces us that the truck and trailer, after having come to a stop before proceeding into the intersection, had started across and that the truck had entirely crossed the street, when the Ford car crashed into the rear end of the trailer when that end was at a point very near the center line of Laurel Street. The testimony of the driver of the Ford is very unsatisfactory and shows conclusively that the accident resulted from' his unwilling-ness to slow up his car or to stop when he saw the other vehicle crossing in front of him. It is very probable that he, in his hurry, did not notice there was a trailer' attached to the truck. The testimony convinces us that he was not carefully looking ahead, but was waving to someone in a barber shop on the side c*f the street. While he would have had the right of way had the two vehicles entered the intersection at approximately the same time, the other had not only entered the intersection, hut was almost across, when he ran into its rear end.

Defendant argues that since plaintiff failed to produce as witnesses certain negro employees who were riding on the trailer, the ¡presumption follows that their testimony would he harmful to him.

Ordinarily such a presumption follows the failure to. produce witnesses, but in this case this would create a mere presumption which would not be suffipient, as the positive testimony convinces us of the gross carelessness of the driver of defendant’s car.

The amount allowed by the trial court was $138.50. The defendant objects that this is more than sufficient to compensate plaintiff for the damage actually sustained. We are quite convinced, however, that the trial court allowed the correct amount.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed.


text:
    No. 11,548
    Orleans
    FATJO v. BOULET TRANSPORTATION CO. ET AL.
    (December 16, 1929. Opinion and Decree.)
    Brittingham & Tycer and Robert O’Con-nor, of New Orleans, attorneys for plaintiff, appellee and appellant.
    Prank T. Doyle, of New Orleans, attorney for O. M. Gwin, defendant, appellant.
    A. R. Christovich, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for personal injuries against the defendants in solido. Both defendants denied liability and pleaded contributory negligence. There was judgment in favor of plaintiff against O. M. Gwin, one of the defendants, for the sum of $1,000 with legal interest from judicial demand, and dismissing plaintiff’s suit against the other defendant, Boulet Transportation Company, Inc. Prom this judgment plaintiff has appealed.

Plaintiff has compromised and settled the judgment in so far as the defendant O. M. Gwin is concerned for $750 cash, reserving his rights' against the other defendant herein.

The record shows that on October 28, 1927, at about 5 p. m., plaintiff was walking on the uptown sidewalk of Common street between Baronne and Carondelet streets in this city. The Canal Bank Building was under construction, and the sidewalk was being paved by the defendant Gwin, who had constructed a platform of boards across the pavement from the property line and extending into the street some 10 or 12 inches. This platform was used by ■ pedestrians who traversed the sidewalk. The boards of which the platform was built were very substantial but were ’loosely laid together. While plaintiff was walking across the platform, a truck owned by the defendant Boulet Transportation Company, Inc., and being driven by its negro chauffeur on Common street in the direction of Baronne street, struck the platform with the ■ left rear hub cap of the trailer which the truck was pulling. This caused the boards to be raised up and separated, with the result that plaintiff was precipitated to the sidewalk, and this caused him to receive the injuries of which he complains.

The downtown or south side of Common street was in process of being repaved and was not open to traffic. This condition of the street forced the driver of the truck to go to his extreme left-hand side, in the same manner as other traffic moving on Common street had done. The front part of the truck passed the platform, but the rear left huh cap of the trailer struck the platform as above stated.

The district judge held that the negligence of the defendant Gwin in building the platform so as to extend some 10 or 12 inches over the curbing into the street was the sole and proximate cause of the accident.

As the case has been fully compromised and settled in so far as Gwin is concerned, it is before us solely on the question as to whether or not the defendant Boulet Transportation Company, Inc., was at fault.

The plaintiff seeks to hold this company liable on the ground that the negro driver of its truck should have seen the protruding planks and driven further to his right so as to have avoided striking them, and that the driver of the truck was running at an excessive rate of speed at the time of the accident. The record shows that a special policeman was directing traffic at Common street near the scene of the accident. We are satisfied that the truck was being operated at a moderate rate of speed.

This leaves only the question of whether or not the driver, as a prudent person, should have seen the protruding hoards of the platform. The evidence shows that there was a lot of débris around the Canal Bank Building at the time of its construction, some of which was on the left-hand or uptown side of Common street near the platform in question tending to obscure the protruding boards. It is admitted that Common street is 26 feet, 6 inches wide; therefore, one-half of it would be 13 feet, 3 inches. The district judge in passing upon this phase of the case said:

“This negro driver, on that street,- onehálf of which was torn up and being paved, on the half that was remaining, was necessarily required to drive close to his left-hand curb, in order to avoid any injury to the work going on or the men working on the paving on the lower side of Common street.

“The projection of the planking ten or twelve inches from the curb was such an unusual, unheard of and unforeseeable thing, that no duty was imposed on this negro to look out for projecting planks.

“He was in charge of a large five ton truck and his first and foremost duty was to watch the traffic proceeding- and to avoid any injury to that, and he had no more reason to believe those planks were protruding there than he had to believe a bomb was placed ten inches from the curb of the gutter and he had to watch for that bomb.

“The fact that he did not see those planks does not constitute fault. I,'therefore, acquit the Boulet Transportation Company in the case.”

As this case involves solely a question of fact, and the .trial court having resolved the issue in favor of the defendant Boulet Transportation Company, Inc., and there being no manifest error, the judgment is affirmed.


author: WESTERPIELD, J.

text:
    No. 11,133
    Orleans
    HARDIE ET AL. v. WRIGHT ET AL.
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiffs, appellees.
    Dufour, Rosen & Hammer and Edith L. Dufour, of New Orleans, attorneys for defendants, appellants.
   WESTERPIELD, J.

This case involved the question of priority as between the lien of a chattel mortgagee and that of a lessor. The facts are not in dispute:

A Mrs. Mallon, some time prior to July 22, 1922, leased from the owner, the Community Realty Company, Inc., an appellee herein, a certain dwelling for a term ending September 30, 1922, and furnished and occupied the same as her residence. Mrs. Mallon, for one reason or another, concluded not to renew her lease at its expiration, and on July 22, 1922, a Mrs. Hickox leased the property from the owner for a term of five years beginning October 1, 1922. On August 19, 1922, Mrs. Hickox bought from Mrs. Mallon the household furniture located in the leased premises, and was permitted to take possession of the furniture and occupy the property on September 4, 1922, or some 26 days prior to the beginning of the term of her contract of lease. On September 5, 1922, Mrs. Hickox executed a chattel mortgage in favor of Walter C. Wright and H. Generes Dufour, appellants herein, which was duly recorded on the same day. Mrs. Hickox remained in possession of the premises and paid her rent until September 1, 1924, when she defaulted in further payments.

Both the landlord and the mortgagee asserted a lien upon Mrs. Hickox’s household furniture, which, under agreement of the interested parties, was sold, and the proceeds thereof, $905.34, deposited in the registry of the court, to await determination of the issue of priority raised by this litigation. Each claim exceeds in amount, the sum deposited. The lower court was ■ of opinion that the landlord’s lien primed the chattel mortgage, and rendered judgment accordingly. The mortgagees have' appealed.

The question presented is whether under the facts, of this case the landlord or the mortgagees are entitled to the fund in the ' registry of the court. Under the Chattel . Mortgage Act (No. 198 of 1918), a chattel mortgage becomes a lien on the property mortgaged from the time of its recordation, and “said lien shall be superior in rank to any privilege or lien arising subsequent thereto.” Section 4.

It will be recalled tha’t the chattel mortgage in this case was recorded September 5, 1922, at a time when the mortgagor, Mrs. Hickox, was in the leased premises by permission of Mrs. Mallon, who, at that time, was the lessee. Mrs. Hickox’s lease of the premises did not begin to run until October 1, 1922, though she had signed the lease on July 22, 1922. The furniture, the proceeds of which are in dispute, had been in the leased premises, as had been stated, continuously, having been originally placed there by Mrs. Mallon, the tenant, whom Mrs. Hickox succeeded, and from whom she bought the furniture.

The issue narrows itself to the question of when the landlord’s lien attaches. Is it at the time the agreement of lease was signed or at the time the term of the lease begins? If the former is true, the landlord must prevail, since the mortgage outranks only those liens arising subsequent to the recordation of this mortgage.

The following authorities are cited as supporting the landlord’s position: Schall vs. Kinsella, 117 La. 687, 42 So. 221; Trager Co. vs. Cavaroc Co., Ltd., 123 La. 319, 48 So. 949; Youree vs. Limerick, 157 La. 39, 101 So. 864, 37 A. L. R. 394; Bernhardt vs. Sandel, 3 La. App. 139; and article 2705, Rev. Civ. Code, which provides that the lessor has a right of pledge on movable effects in the leased property as security for the payment of his rent. In none of the - cited cases does it appear that the landlord claimed to have a lien before the beginning of the term of his lease, and they are therefore not apposite here. The quotation from Youree vs. Limerick, appearing in counsel’s brief, to the effect that “the/ property covered by the chattel mortgage was in the leased premises at the time of the execution of the chattel mortgage; the lessor’s lien, therefore, had attached and was. in existence when the chattel mortgage was given, * * * ” would appear to be in point. But an examination of the facts in that case will 'show that the term of the lease had begun 'to run, and the relation of landlord and tenant established, before the execution of the ' chattel mortgage. The same might be said of the language used in Schall vs. Kinsella, which is also quoted, to the effect that “a privilege dates from the time of the creation of the lease, and not from the date of a particular month,” wh’ich counsel construes to mean that 'the landlord’s privilege “is a lien granted as of the date of the lease by the law itself.”

' The article of the Code relied on, giving the lessor the right of pledge on the movable' effects of the lessee which are found on 'the leased premises, is not difficult of application, but is not helpful in the 'determination of this case, for the reason that we are chiefly concerned with the time of the beginning of the relationship of landlord and tenant, and not with the im terpretation of the right of the landlord after the establishment of that relation.

Turning to a consideration of the authorities presented on behalf of the chattel mortgagee, we find no Louisiana case cited; counsel explaining that he has been unable to find any.

In Re Southern Hardware & Supply Co. (D. C.) 210 F. 381, a bankruptcy case, it was held that the landlord’s lien did not attach to property in the leased premises before the beginning of the term of tho lease. The facts in that case were these; A tenant was in possession of leased premises under a lease expiring October 31, 1913. On September 26, 1911, a contract for a new lease, beginning at the expiration of the old one, October 31, 1913, was entered into. Between September 26, 1911, and October 31, 1913, the tenant went into bankruptcy. The court held that there was no lien under the lease beginning November 1, 1913, which would attach to the property on the leased premises. This case presents a close analogy to the case at bar. The other cases cited by counsel for appellant, viz: Upper Appomattox Co. vs. Hamilton, 83 Va. 319, 2 S. E. 195; Federal Reserve Bank vs. Wylie (Iowa) 221 N. W. 831, and Gasnik vs. Steffenson, 112 Iowa, 688, 84 N. W. 945, are also more or less in point. This is not a case of reconstruction as was considered in Comegys vs. Shreveport Kandy Kitchen, 162 La. 103, 110 So. 104, 52 A. L. R. 931. In fact, the lease to Mrs. Mallon, Mrs. Hickox’s predecessor, is, under the agreed statement of facts in this case, expressly put out of view. Were it otherwise, there could be no reconstruction, for the simple reason that the lessees were different individuals. A chattel mortgage recorded prior to renewal of lease takes precedence over landlord’s lien on movables in leased premises. Williams vs. Fed. Mch. Shop, 8 La. App. 281.

The existence of a landlord’s lien presupposes a landlord and a tenant. To construe that this relation existed between the owner of the property and Mrs. Hickox when the mortgage was granted is to argue that the owner sustained this relation to two individuals at the same time with reference to the same property, for Mrs. Mallon’s lease had not expired. Mrs. Hickox was certainly not a tenant of the owner. She was in the house by sufferance and could have been ejected at any time. The fact that she subsequently became a tenant could not have retroactive effect. It is true that when she granted the chattel mortgage she had contracted to occupy the place as a tenant, thus indicating her intention to create the relation of landlord and tenant. But the landlord’s lien is not created by intention, nor by contract, in tbe sense that tbe obligation-and privilege of landlord and tenant cannot be created by convention in advance of the actual establishment of the relation. In other words, it is not competent for individuals to stipulate that a lease shall begin at some time in the future and the landlord’s lien shall have effect immediately.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of Walter C. Wright and H. Generes Dufour, decreeing them to be entitled to the entire fund of $905.34, now on deposit in the registry of the civil district court, and all costs.


text:
    No. 11,519
    Orleans
    CLESI v. THACHER
    (December 16, 1929. Opinion and Decree.)
    Prowell, McBride & Ray, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous, of New .Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is a suit by Nicholas J. Clesi, a real estate broker, claiming a commission of $1,380 under the following agreement entered into between Harry Goldstein, represented by plaintiff, and Arthur W. Thacher, defendant herein, and represented by David C. Loker, as his agent. The agreement reads as follows:

“New Orleans, La., Dec. 13th, 1926.

“N. J. Clesi, Realtor, City: I hereby offer and agree to purchase through you the property 3521-21%-23-23%, Camp street, fourplex apartment building, together with all' permanent fixtures and improvements therein, the grounds measuring about 50'x 92' 7" with community drive of 8 ft. and yard in common and 4 garages, for the sum of Twenty Three Thousand and no/100 Dollars ($23,000.00) on terms of cash. Coincident with and upon acceptance of this offer vendor agrees to purchase from me the two double cottages Nos. 1660-62-64-66 N. White Street for the price of $11,500.00 cash, on which I agree to pay N. J. Clesi, Agent, 4% commission for services. Balance- years credit as per notes secured by mortgage :and vendor’s lien bearing--per cent, interest per annum payable - and all other usual and customary security clauses. The taxes of current year to be pro-rated. All proper and necessary certificates to be paid by vendor.

“Act of sale to be passed before purchaser’s Notary, within sixty days at expense of purchaser. Possession to be given at act of sale.

“If this offer is accepted we bind ourselves to deposit' with you immediately, as part of the purchase price, 10% represented by demand notes,- ($-) Dollars, this deposit to be noninterest bearing and is not to be considered as earnest-money, the parties hereto reserving the right to demand specific performance.

“Should we fail to comply with the terms of this offer if accepted we obligate ourselves to pay the commission, and all fees and costs incurred in enforcing collection. This offer is to remain binding and irrevocable through December 14th, 1926.

“(Signed) David C. Loker,

“Agent for the Purchaser.

“New Orleans, La., December —, 1926.

“I hereby accept the above offer, also terms and conditions, and agree to pay you for services rendered, 4% commission on full amount of sale, same being earned and payable when agreement to purchase is' Sighed and the offer is accepted. Commission on both sales to be divided between N. J. Clesi and David C. Loker equally.

“(Signed) Harry Goldstein.”

The authority of Loker to represent the defendant is admitted, but it is contended that no commission is due plaintiff because the contract relied on was inchoate, in that it was contemplated that a subsequent agreement would be entered into whereby Thacher was to agree to purchase Goldstein’s property, and this is said to be evidenced by the acceptance of Goldstein and the use of the words, referring to the payment of a commission, “payable when agreement to purchase is signed and the offer is accepted.”

The trial court found that no tender of title to the Goldstein property had been made within the 60 days mentioned in the contract, during which time Thacher’s offer was to be irrevocable, and held this circumstance fatal to plaintiff’s recovery.

We are unable to agree with our brother below. Clesi’s claim for his commission -was not affected by a failure of Goldstein to put Thacher in default. To begin with, Thacher admits that he refused to carry out the agreement and thus actively breached the contract making a putting in mora unnecessary. A real estate agent earns his commission when he procures a purchaser willing and able to buy the property he has for sale, whether the sale is consummated by the vendor or not. Gurley & Parkinson vs. Loeffler, 14 Orl. App. 424; Steppach vs. S. E. Worms & Co., Ltd., 7 Orl. App. 216; Dauterive vs. West India Transportation Corp., 3 La. App. 319.

The question for our determination is whether the instrument sued on is complete in itself or whether it was a preliminary engagement contemplating some .further action of one or the other of the parties. In this connection we observe from the record that both parties immediately following the signing of the agreement deposited 10 per cent of the purchase price of their respective properties with Clesi as the agreement obligated them to do. It appears therefore that both Gold-stein and Thacher considered the contract complete at that time and that both began the execution of it. Their construction of the agreement then is most important in determining its meaning now. Moreover, the contract on its face seems to contemplate no supplement. It is unusual, as counsel points out, but we are of opinion that the document evidences an agreement between the parties whereby Thacher, through his agent, agreed to purchase from Goldstein the property described therein for $23,000, conditioned upon Goldstein purchasing Thacher’s property, described therein, for $11,500. It was, in effect, a mutual offer to" buy and to sell and, in our judgment, the words relied on by defendant to the effect that a 4 per cent commission would be paid to Clesi by Goldstein “when agreement to purchase is signed and the offer is accepted” are of no importance.

Plaintiff based his claim upon the aggregate price of both Thacher’s and Gold-stein’s properties, which were to be mutually conveyed under the agreement. He is only entitled to a commission upon the purchase price of Thacher’s property, $11,-500, because Thacher only agreed to pay Clesi commission on his property. Plaintiff should recover 4 per cent of $11,500.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there plaintiff, and against Arthur W. Thacher, defendant, in the full sum of $460 with legal interest from judicial demand and be judgment in favor of Nicholas J. Clesi, all costs. • ,. ¡ .


text:
    No. 11,506
    Orleans
    FERGUSON v. PHILLIPPI
    (December 6, 1929. Opinion and Decree.)
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    John May, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for personal injuries and property damage resulting from an automobile collision between the automobiles of plaintiff and defendant on September 10, 1927, at 2 o’clock p. m„ on the Metairie road in Jefferson parish. Defendant denied liability and specially pleaded contributory negligence. There was judgment in favor of defendant, and plaintiff has appealed.

The evidence shows that plaintiff was driving his Dodge coupé automobile on the Metairie road in the direction of Shrews-bury, and that the defendant was driving his Studebaker touring car on the same road in the direction of New Orleans, so that the automobiles were going in opposite directions. When the plaintiff reached a point on the Metairie road where Duplessis and Stella streets intersect the Metairie road, he attempted to turn to his left into Duplessis street to go1 to the Metairie Golf Club. There was another automobile in front of plaintiff, proceeding in the same direction at the time. The defendant, seeing the plaintiff’s car, which had crossed in front of him, attempted to avoid the accident by turning into Duplessis street, with the result that the front part of defendant’s car struck the right rear part of plaintiff’s. Both machines traveled several feet off the Metairie road before coming to a stop.

The evidence is conflicting as to how close defendant’s car was to plaintiff’s car at the time plaintiff attempted to turn into Duplessis street. Plaintiff contends that defendant’s car was 60 or 75 feet away, and that he had held out his left hand as a signal that he was about to cross, and that, after the accident, he agreed to pay for plaintiff’s damage. Defendant denies this, and contends that, when he was within 15 feet of plaintiff, plaintiff suddenly crossed in front of his car, and that this was the cause of the accident. Defendant also denies that, after the accident, he agreed to pay plaintiff the damages caused by the collision. Plaintiff and a traffic officer testified in his behalf, and defendant and his father, who was riding in his car at the time, testified in his behalf.

The trial court, after hearing the witnesses, reached the conclusion that plaintiff was at fault, and, in view of the conflicting testimony, we cannot say that the judge a quo was manifestly in error in his finding. In any event, the record convinces us that plaintiff was guilty of contributory negligence, which would bar his recovery.

For the reasons assigned, the judgment is affirmed.


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    No. 13,171
    Orleans
    BISHOP-WYATT CO. v. LATIN-AMERICAN LIFE AND CASUALTY INS. CO., INC.
    (December 16, 1929. Opinion and Decree.)

      R. R. Ramos, of New Orleans, attorney for plaintiff, appellee.
    Jules A. Grasser, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Appellee moves to dismiss this appeal upon the ground that the motion to appeal was not granted in open court but in chambers, and no citation of appeal was served upon appellee and none asked for in the motion of appeal.

The motion for appeal, which was from a judgment of the civil district court for the parish of Orleans (which is in continuous session) does not affirmatively show that it was granted either in open court or in chambers. The presumption is, however, that, since the appeal was asked for on motion, that it was granted in open court. Marsh vs. Avegno, 3 La. App. 294.

The case of Ducre vs. Succession of Ducre, 167 La. 133, 118 So. 864, is not in point, for the reasons given in the case of Wilson James vs. City of New Orleans (No. 11,883 of our docket) 125 So. —, decided October 21, 1929.

For the reasons assigned, the motion to dismiss the appeal must be denied.

Motion to dismiss appeal denied.

HIGGINS, J., takes no part.


text:
    No. 10,331
    Orleans
    ARONOWITZ v. DULITZ
    (December 16, 1929. Opinion and Decree.)
    Leon Levitan, of New Orleans, attorney for plaintiff, appellee.
    H. W. Kaiser & J. H. Hammel, Jr., of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $700, the alleged balance due under a written lease between plaintiff and defendant. The petition alleges that the lease was signed on February 9, 1924, and covered the premises No. 754 South Rampart street, this city; that it was for a term of 19 months, commencing March 1, 1924, and ending September 30, 1925, at a rental of $125 for the first seven months and $150 per month for the remainder of the term of the lease; that the defendant paid the rent through January, 1925, and was delinquent in the payment of the amount of $150 due for each of the months of February and March, 1925, and that therefore the balance of the rent notes became due under a provision in the lease to the effect that failure to pay any one installment matured the other installments; that in violation of the terms of the lease the defendant abandoned the premises during the early part of March, 1925; that with the consent of the defendant the premises were rented to a third party under a written lease commencing May 1, 1925, at a rental of $100 per month, to minimize the loss, and that there was therefore due plaintiff the sum of $1,200, less a credit of $500, the rent which was to be paid by said third party for the months of May, June, July, August, and September, leaving a balance due plaintiff of $700, and 10 per cent attorney’s fees as provided in the lease.

Defendant answered admitting the sign-' ing of the lease and rent notes, and that the property had been leased to a third party, but denying liability on the ground that on or about March 1, 1925, plaintiff, and defendant entered into a verbal agreement whereby plaintiff canceled the remainder of the lease and rent notes in consideration of the defendant surrendering certain furniture and fixtures in the premises, and permitting plaintiff to take possession of the premises and to rent them for plaintiff’s own account.

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The sole issue in this matter is one of fact.

It appears that defendant ^ left the premises in the early part of March, and that there were some negotiations between the plaintiff and defendant relative to the rent that was due plaintiff by the defendant. Defendant, after stating that he was unable to pay the rent, was notified by plaintiff’s attorney on March 11, 1925, that the premises would be rented to a third party for the sum of $75 per month in order to minimize the loss, and invited defendant to try to secure a tenant who would pay more than $75 a month for the property. Defendant did not secure a tenant, and plaintiff then located a tenant who agreed to pay the sum of $100 a month rental for the premises, and signed a lease on April 1, 1925. Plaintiff then stored the fixtures and effects of defendant and filed suit against the defendant on April 9, 1925, for the balance of the rent, as hereinabove stated.

The answer of the defendant pleads a special defense, and therefore the burden of proving this special defense by a preponderance of evidence was upon the defendant.

We have carefully read the record and are satisfied that there was never any meeting of the minds of the parties on the alleged oral agreement whereby the lease was to be canceled.

The record shows that the defendant attempted to have plaintiff accept a proposition to cancel the lease in consideration of the transfer of the fixtures and furniture in the building, but plaintiff never agreed to this.

The judge of the trial court rendered judgment in favor of plaintiff, and, as the record does not disclose any manifest errors, the judgment is affirmed.


author: MOUTON, J.

text:
    No. 575
    First Circuit
    COLLINS v. PERRIN
    (December 30, 1929. Opinion and Decree.)
    N. F. Montet & Harvey Pelletier, of Thibodaux, attorneys for plaintiff,' appellant.
    C. A. Morvant, of Thibodaux, attorney for defendant, appellee.
   MOUTON, J.

This is a suit in damages for $1,500 for a brutal assault and battery alleged to have been committed by defendant on plaintiff at Golden Meadows, parish of Lafourche in January, 1927.

Four witnesses testified on each side in support of the contentions of the two litigants. The difficulty took place in the shrimp-picking shed of the Berthoulde Cheramie Company. It seems to have originated between plaintiff and Athenas Perrin, a son of defendant.

The testimony of Mrs. Collins, plaintiff, and of her daughter, Germine Collins, is substantially to the effect that while Athenas Perrin was holding plaintiff by the arms, the defendant, his father, without provocation rushed in, shoved or pushed plaintiff down twice, kicking her on the leg as she fell to the floor the second time.

This is stoutly denied by defendant and Athenas, his son.

Adolphe Solomon, who was in the factory which is separated from the shed by a public highway about 12 feet wide, says he saw while standing in the door of the factory when plaintiff was shoved down and kicked by defendant. He saw her shoved down once, while plaintiff and her daughter say she was pushed down twice.

About all Miss Crosby, another witness for plaintiff, saw was that plaintiff had fallen to the floor while defendant was standing “in front of her.” The testimony of these witnesses is therefore extremely contradictory and conflicting.

Thomas Esponge, foreman of the shrimp shed,' was present when the scuffle occurred between Mrs. Collins and defendant. He says that defendant was holding the hands of the plaintiff, telling her to get away from there as he did not want any trouble, and that they, referring to himself and his son, did not deserve the accusations she was making against them. He says he did not see defendant shove or knock plaintiff to the floor, nor saw that he ever kicked her. He was in a position, he testifies, and so situated • that he could have seen if plaintiff had been either pushed down or kicked.

The court seems to have relied to a large extent on the version given by Espogne of the occurrence, as determinative of the preponderance of the evidence on the issue of fact presented and as being in favor of the contentions of the defendant which resulted in a judgment rejecting the demand.

We have carefully gone over the evidence and are unable to detect any error in the conclusions reached by the trial judge.

As this suit presents a pure question of fact, under the well-settled rules of law, there is no ground for a reversal.


text:
    No. 11,878
    Orleans
    STATE EX REL. RICHARDSON v. RECORDER OF MORTGAGES ET AL.
    (December 16, 1929. Opinion and Decree.)
    F. Rivers Richardson and William H. Talbot, of New Orleans, attorneys for plaintiff, appellee.

      I. P. Williams, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

This is a suit by the owner of real estate to have certain sidewalk paving liens erased from the mortgage records. The petition for the writ of mandamus alleges that more than ten years have expired since the inscription of said mortgages and that, under the provisions of Act No. 46 of 1918, he is entitled to have said inscriptions erased. The recorder of mortgages answered, pleading the unconstitutionality of the act for the reason that it violates section 15 of article 4 of the Constitution of Louisiana of 1921 and section 10 of article 1 of the Constitution of the United States. The curator ad hoc appointed to represent the other defendants, as absentees, filed a general denial.

There was judgment in favor of relator making the preliminary writ of mandamus peremptory and ordering the cancellation of the paving liens. From this judgment the recorder of mortgages has appealed.

The sole question presented to the court is whether or not Act No. 46 of the General Assembly of Louisiana of 1918 is unconstitutional and violative of section 15 of article 4 of the Constitution of Louisiana and section 10 of article 1 of the Constitution of the United States.

Section 15 of article 4 of the Constitution of Louisiana, adopted June 18, 1921, reads as follows:

"No ex-post facto law, nor any law impairing the obligation of contracts, shall be passed; nor shall vested rights be divested, unless for purposes of public utility, and for just and adequate compensation previously paid.”

The relevant part of section 10 of article 1 of the Constitution of the United States reads as follows:

“No State shall enter into any Treaty, * * * pass any Bill of Attainder, ex post facto Law, * * * or Law impairing the Obligation of Contracts * *

Act No. 46 of the Louisiana Legislature of 1918 reads as follows:

“Be it enacted by the General Assembly of the State of Louisiana, that claims, liens and ¡privileges for paving streets, alleys and sidewalks shall prescribe by ten years from the date of the certificates or other evidences of such claims, liens and privileges; provided, that in all cases where the cost of the paving shall have been advanced by any Parish, City or Town, to be refunded in annual installments in accordance with existing laws, the claims, liens and privileges shall prescribe in the same manner as now provided by the Constitution and laws of this State for the prescription of taxes, tax liens, and privileges, provided that the provisions of this act shall not take effect until the first day of January, 1919.”

It is contended by the defendant the recorder of mortgages that Act No. 46 o.f 1918 is unconstitutional, first because it is an ex post facto law, and second, because it is a law impairing the obligations of contracts.

No brief was filed and no argument made in this court by counsel for defendant recorder of mortgages, the case being submitted upon the brief of relator. The Supreme Court of this state in the case of Cane vs. Herndon, 107 La. 600, 32 So. 33, 37, in speaking of prescription with reference to tax titles, said:

“As to the policy of such legislation and the power of the state, all writers and jurists are agreed. ‘The policy of such laws is unquestionable, and the power to enact them is undisputed.’ Cooley, Tax’n, 376. ‘Public policy demands the enactment o.f such laws, and they are universally sanctioned by the practice of nations and the consent of mankind.’ Blackw. Tax Titles, 643. Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall he barred has been, from a remote antiquity, fixed by every nation, in virtue .of that sovereignty by which it exercises its legislation over all persons and property within its jurisdiction. McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177.”

' In the case of Atchafalaya Land Co. vs. Williams Cypress Co., 146 La. 1064, 84 So. 351, 357, the court said:

“Counsel for the plaintiff and interveners cite Cooley’s Constitutional Limitations, Black’s Constitutional Law, and Watson on the Constitution, in support of the well-recognized doctrine that a statute cannot, under the guise of merely changing the remedy for asserting a right or for enforcing an obligation, immediately take away the right or materially impair the means of enforcing the obligation. The test of validity of a statute of limitation, under that doctrine, is whether it allows a reasonable time for the assertion of the right or the enforcement of the obligation; and the Legislature is primarily the judge of the reasonableness of the time allowed. Watson on the Constitution, vol. 1, p. 799, under the title, What Is an Impairment of the Obligation of a Contract, says: ‘So, a contract may be impaired by a change in the statute of limitations. The rule is that statutes affecting existing rights are not contrary to the Constitution when they give a reasonable time to begin an action before it is barred by the statute. The question in such a case always is whether the time is reasonable, and that is left to the judgment of the Legislature; and the courts will not determine it unless the error is a palpable one. It was held that nine months and seventeen days in which to sue on a cause of action which had already run nearly four years was not unreasonable.’ ”

In the case of Wheeler vs. Jackson, 137 U. S. 246, 11 S. Ct. 76, 34 L. Ed. 659, involving the unconstitutionality of a prescriptive statute, the court held (syllabus):

“(1) That this section is not repugnant to the clause of the Constitution of the United States forbidding a state to pass any law impairing the obligation of contracts, or to the clause declaring that no state shall deprive any person of property without due process of law.

“(2) That, consistently with those clauses, the legislature may prescribe a limitation for the bringing of suits where none previously existed, as well as shorten the time within which suits to enforce existing causes of action may be commenced, provided, in each case, a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of suit before the bar takes effect.”

An examination of the authorities on this question shows that, the Supreme Courts of this state and of the United States have uniformly held that the state has a right to pass a prescriptive statute, placing a limitation of time even upon the assertion of a right theretofore having no limitation upon its assertion, or a different limitation, and the legality of such a statute is unquestionable if it affords a reasonable time within which to assert the right. See U. S. vs. Morena, 245 U. S. 392, 38 S. Ct. 151, 62 L. Ed. 359; Blinn vs. Nelson, 222 U. S. 1, 32 S. Ct. 1, 56 L. Ed. 65, Ann. Cas. 1913B, 555; Soper vs. Lawrence Bros. Co., 201 U. S. 359, 26 S. Ct. 473, 50 L. Ed. 788; Wilson vs. Iseminger, 185 U. S. 55, 22 S. Ct. 573, 46 L. Ed. 804; Crow vs. Board of Supervisors of Road District, 141 La. 1017, 76 So. 182; Hurry vs. Hurry, 144 La. 877, 81 So. 378.

The next inquiry is whether or not Act No. 46 of 1918 allowed reasonable time within which the owner of liens and privileges for paving would have an opportunity to assert his right thereunder. It is to be noted that the prescriptive period is ten years and the provision of the statute is not to take effect until the 1st of January, 1919. The liens in question were recorded January 22, 1909, and we are therefore of the opinion that a reasonable time was provided by the statute for the commencing of such suits before the prescriptive period takes effect. We are therefore of the opinion that Act No. 46 of 1918 is constitutional, and not violative of section 15 of article 4 of the Constitution of Louisiana and section 10 of article 1 of the Constitution of the United States.

Under the 'plain provisions of Act No. 46 of 1918, relator was entitled to-the relief prayed for. See also State ex rel. Mattern vs. City of New Orleans et al., 9 La. App. 95, 119 So. 94.

For the reasons assigned the judgment is affirmed.


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    No. 569
    First Circuit
    CONSOLIDATED COMPANIES, INC., v. KING
    (December 30, 1929. Opinion and Decree.)
    Ellender & Ellender, of Houma, attorneys for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   MOUTON, J.

King, defendant, had two accounts with plaintiff company, one for the purchase of groceries and the other for rat traps. This suit is for a balance of $267.88, balance claimed on the rat trap account.

■ The defense is that the traps were bought by King from one Tabony, who, as King’s witness, testified he sold the traps for plaintiff company and not for himself. King swore that he bought from Tabony and is therefore placed in the unfortunate attitude of attacking the veracity of his own witness.

The record shows that King returned some of the traps through Poirson, a driver of the company. It was shown that King had been credited for the traps so returned by Poirson. It was also shown that King made a cash payment on the trap account, thus admitting that he had bought from plaintiff. It is therefore evident that Ta-bony’s statement is fully corroborated and puts him in a better light than King would have him appear, and clearly fixes the liability of King for the balance claimed, as there is nothing to question the -correctness of the credits allowed King.

We find no merit in this appeal.


text:
    No. 566
    First Circuit
    SUCCESSION OF ELODIE BURGIERRES
    (December 30, 1929. Opinion and Decree.)
    L. C. Bryant, of Jeanerette, attorney for opponent, appellant.
    L. O. Pecot and S. O. Landry, of New Iberia, attorneys for administrator, appellee.
   MOUTON, J.

The deceased, Mrs. (widow) Elodie Burgierres, died in New Iberia in July, 1928, leaving a small estate which was sold to pay debts. A final tableau was filed upon which Mrs. Buteaud is carried as an ordinary creditor for $690, this amount being constituted of two items, $90 for board and lodging for the months of April, May and June and $600 for nursing during eight months at $2.50 per day. Several of the collaterals of the deceased filed an opposition to these charges.

The district judge in rendering judgment recognizing Mrs. Buteaud’s claims refers to the well-established rule which holds that a mandate is not necessarily gratuitous, and that an agreement may be inferred to pay from the nature of the services rendered, and the relations of the parties. Suc. of Krekeler, 44 La. Ann. 726, 11 So. 35; Suc. of Fowler, 7 La. App. 207; Gaines vs. Suc. of Del Campo, 30 La. Ann. 245.

The learned counsel for opponents, as we understand the opposition, does not dispute the correctness of that doctrine so recognized in many decisions.

The ground of the opposition is that the charges for board and lodging are not due, are excessive and should be rejected or reduced.

The proof is that the deceased in the latter part of her life could not live alone in her little home in New Iberia, had no one to attend to her, and found a refuge in Mrs. Buteaud’s home where she was taken in, about four years before her demise. It was shown that out of a pension she was receiving, presumably as the widow of a Confederate veteran, deceased was paying $30 a month for board and lodging. The proof is, and to which there is no contradiction, that she paid all she owed Mrs. Buteaud for board and lodging, with the exception of the three months for which her estate is charged in favor of Mrs. Buteaud. There is no testimony to show, and no fact of record to suggest that the claim for that item is excessive or has ever been paid. It was therefore ¡properly recognized by the court.

The main contention of the opponents is levelled against the claim for nursing at $2.50 per day. The proof shows clearly that during the last year of her life the deceased was old and practically an invalid. It is shown by Mrs. Buteaud that the deceased was most all of the time in bed during the eight months prior to her death. She says, and there is no evidence to contradict her, that she had to dress and undress Mrs. Burgierres, and had to be with her most of the time, night and day, to give her those little personal attentions which are usually required by the. old and infirm.

Two ladies, neighbors of Mrs. Buteaud, testified that she took good and faithful care of the deceased, who they say, was an invalid for one year before her death. They both testified that the charge of $2.50 for these daily services to Mrs. Burgierres was unquestionably fair and reasonable, one of the ladies being a practical nurse. Hence, there is no ground for the rejection of these charges or for their reduction.

We find that the judgment dismissing the opposition, and decreeing the payment of Mrs. Buteaud’s claim, is correct, and therefore affirmed.