author: WESTERFIELD, J.

text:
    No. 9112
    Orleans Appeal
    EMMA LATMORE, Appellant, v. NEW ORLEANS PUBLIC SERVICE INC.
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 30, 34.
    A street railway company is liable for injuries sustained by a passenger in the act of boarding one of its street cars when the evidence shows the injuries to have been caused by a fall due to the premature starting of the car.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Civil District Court, Parish of Orleans, No. 155, 534. Division “D”, Hon. Porter Parker, Judge.
    This is a suit for damages for personal injuries due to motorman negligently prematurely starting a street car.
    Judgment for defendant, plaintiff appealed.
    Judgment reversed.
    Woodville & Woodville, attorneys fot plaintiff and appellant.
    Dart, Kernan & Dart, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues the defendant street railway for $4,150.00 alleged to be due her for damages on account of physical injuries and loss of earnings, earning capacity, which she claims to be due to a fall caused by the sudden starting of a street car owned and operated by defendant, as she was in the act of boarding it. She itemizes her claim as follows:

For nervous and mental shock — $500.00

Physical pain and suffering____ 1,500.00

Loss of earnings________________________________ 150.00

Impairment of earnings capacity 2,000.00

$4,150.00

Defendant denies that the accident was caused in the manner alleged by plaintiff and avers that plaintiff fell in an effort to alight from the car just after she had boarded it and while the car was in motion, and that consequently, her injuries were due entirely to her own fault and carelessness.

There was judgment for defendant and plaintiff has appealed.

The accident happened on the Napoleon Avenue line in Washington Avenue at the point where the street railway tracks traverse the tracks of the.Y. and M. V. R. R. At this point conductors in charge of defendant’s street cars are required to cause the cars tp be stopped before crossing the railroad tracks and to get out and walk ahead and across the railroad tracks for the purpose of “throwing a switch” or derailer referred to in this record as a “Lizzie” and to signal to the motorman to proceed, the conductor boarding the car as it passes him, procedure wisely adopted to avoid crossing accidents.

According to plaintiff, she and her two sisters were standing near the crossing waiting for the street car. When the car stopped the conductor alighted and walked ahead to the “Lizzie” as usual, whereupon, the three sisters started to board the car. Two of them were safely on the platform and plaintiff in the act of getting on with one foot on the step, when the car started, throwing her to the ground and injuring her. She is supported by one of her sisters (the other being sick at the time of trial), her husband, who claims to have seen the accident from the front gate of his sister-in-law’s home, which was nearby, and by two other witnesses, who appear to be disinterested. All of plaintiff’s witnesses tell substantially the same story and it would serve no useful purpose to review their testimony separately.

Defendant produced four witnesses who were present when the accident occurred, the mortorman, conductor and two passengers. The conductor testified that he looked over the side of his platform toward the rear and saw all three women get safely on.before starting his car and shortly thereafter hearing. the- conductor holler to him, he stopped his car and saw plaintiff lying near the derailer (a distance of 40 or 50 feet from the point she boarded the car); that he . helped carry plaintiff into a house and heard her say that she jumped, off the car because she didn’t have any money to pay her fare because she had given all her money to .her husband.

The conductor testified that as he was throwing the derailer he saw three colored women running to catch the car and signaled to the motorman to stop; that the three women got on the car and as the car neared the track (Y. & M. Y. RR.), he saw plaintiff lying on Washington Avenue; that he saw plaintiff go out of the car as though she jumped. He says he helped carry her to the house but does not testify to any statement by plaintiff as to why she jumped off.

One of the passengers, the witness Thibeudaux says plaintiff jumped off the car while in motion going at a “pretty fair speed” and that after she fell, he heard her say in the presence of the conductor and others that her husband didn’t give her any money. This witness rather destroys the effect of his evidence by repeating a number of times the statement that the conductor was on the back plat-form with him all the time and didn’t get out of the car at all and by his statement that the car was going at a “pretty fair speed” when plaintiff jumped off, when, as a matter of fact, the car under any conditions had just started. The other passenger, Govar, testified that he saw both the conductor, who was on the side of the track near the front end of the car, and the plaintiff who was hoarding it in the rear at the same time. His testimony either because of confusion, embarrassment or for some reason is most unsatisfactory.

An employee of defendant, Edward Roullier, testified that he called on both sisters of plaintiff and obtained a verbal statement to the effect that plaintiff .jumped off the car while in motion and was heard to say “bring me my check or something to that effect”.

Our conclusions are that plaintiff should recover. We cannot accept the defendant’s theory of the accident presenting, as it does, such improbability and resting upon such unsatisfactory evidence. It would be extraordinary for plaintiff to board the car and ■ immediately leave it and particularly so for her, a middle aged negress, to jump off while the car was in motion. The explanation that she desired to get a check from her husband and that she had no car fare is not convincing. The fact that she was found after her fall some 40 or 50 feet from the point where she boarded the car which is stressed by counsel, does not establish that she jumped and did not fall in the act of alighting since she may have held on for a while with her hands struggling before falling.

The proof on the question of quantum is very meagre. Plaintiff claims to have been confined to her bed for three months with aches and pains, but she admits having had two surgical operations. No doctor has testified concerning her injuries. No bones were broken and no permanent injury has resulted. Under these circumstances, we will allow $350.00.

For the reasons asigned, it is ordered that the judgment appealed from be annulled and reversed and it is now ordered that there be judgment in favor of plaintiff, Emma Latmore, wife of Henry Lat-more, and against the defendant, the New Orleans Public Service, Inc., in the sum of $350.00 with legal interest thereon from judicial demand, and all costs.

Judgment reversed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9708
    Orleans Appeal
    SENA D. FURLOW v. MAISON BLANCHE CO., LTD., ET AL., Appellants
    (June 8, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 350, 351.
    In order to succeed plaintiff must make his case reasonably certain. To make it probable is not sufficient.
    2. Louisiana Digest — Judgment—Par. 64.
    It is a legal axiom that in case of doubt and difficulty the conclusion ought to be in favor of the party who strives to avoid a loss rather than in favor of the-party who seeks to secure a gain.
    (Cvil Code, Art. 2315. Editor's note.)
    Appeal from Civil District Court, Division “G-”, Hon. Sam A. LeBlanc, • Judge.
    This is a suit for damages for alleged personal injuries.
    There was judgment by jury for plaintiff and defendant appealed.
    Judgment reversed.
    Thomas E. Furlow, Donelson Caffery, attorneys for plaintiff and appellee.
    J. Zach Spearing, Gordon Boswell, E. R. Mabry, attorneys for defendants and appellants.
   CLAIBORNE, J.

The very large amount claimed in the petition and allowed by the verdict and judgment herein, and the prominence of counsel engaged, have given this case more than ordinary importance and have caused us to peruse with more than ordinary care the voluminous transcript and briefs in this case.

The plaintiff alleges that she was in-, jured through the fault of defendants’ employees. Of course, the burden of proof is upon her to' establish the injury she complains of with reasonable certainty and by a preponderance of evidence. Rose vs. Shaw, 144 La. 571, 80 South. 727; C. C. 2232.

The plaintiff swears that she went into defendants’ “Beauty Parlor” to have her hair shampooed; that in the process of rinsing a spray of hot water was turned upon the top of her head and burnt it; that it was very painful and caused her to cry out to the operator: “You are burning me”; that she suffered much pain and underwent a shock that affected her nervous system. She then recites all the consequences of this “burn,” which cover all the latent ills that flesh is heir to: Rigors, chills, headaches, nervousness, insomnia, pain in the head as if something was being wedged through the skull, clavus, pain in the arms, legs, sides, back, muscles, loss of power of locomotion, fainting spells, spasms, contractions of limbs, fingers, convulsions, .loss of sight, unable to read or concentrate her thoughts, or to play the piano, hissing of the ears, a smothering sensation and choking in the throat; disturbances of the ovarian functions and of the thyroid glands; loss of appetite; falling off;nausea and vomiting; constipation; physical exhaustion; loss of hair, and other ills dependent upon the above conditions.

Several doctors of medicine were consulted by the plaintiff and treated her at various times after the accident. Only one of them, Dr-. Sarah Mayo, saw any evidence of the burns. All gave their testimony based upon what the plaintiff told them.

Mrs. Mayo saw the plaintiff the second day after the accident. On the crown of her head there was a small area, a round spot with little blisters, v'ery painful; that was the only part that was not normal.

The doctors consulted by her were Dr. C. E. Perkins, an osteopath; Dr. Henry Daspit, specialist in nervous and mental diseases; Dr. Miss Aldea Maher, who has specialized as a pathologist and in basal metabolism; Dr. J. E. Landry, who has made a special study of endocrinology, or internal secretions or glands, and gave it as his opinion that the plaintiff was suffering from “insufficiency of internal gland secretions.”

Doctors Gerdine and Logan of the Still Hildreth Sanitarium of Macon, Missouri.

None of these doctors ever saw any evidence of a burn or a scar upon plaintiff’s head. Their testimony is based entirely upon what the plaintiff told them. They are examined and cross-examined with much ability, and answer with much erudition. As a necessary consequence, they indulge in much supposition, opinion, speculation, and theory based upon a burn, as described by plaintiff, and give it as their opinion that all the ills discovered and treated by their several systems might possibly result from boiling water being poured upon one’s head. But all these opinions are theories and based upon the assumption that boiling water was sprayed upon plaintiff’s head and scalded it.

All agreed that the plaintiff was suffering from neurosis, or hysteria, which is a mental disorder.

Counsel for the plaintiff have examined these medical experts with much learning and research and have presented the case in argument with remarkable ability. But they have dwelt rather upon the latent physical or mental troubles of which the plaintiff complained, and upon the opinions of- doctors concerning these troubles, than upon the cause of those troubles for which alone the defendants are liable.

After a patient and careful reading of the whole record, and more particularly upon that part of it, I have been unable to bring my mind to the conviction that the preponderance of the evidence establishes that the plaintiff suffered a burn of that sufficient intensity which plaintiff describes or sufficient enough to produce all those direful consequences which she so eloquently describes.

No one was present when the burn was alleged to have been inflicted except the operator, Miss Malone, and she denied it. The plaintiff made no complaint of any burn to the manager or to any one in the establishment except some three weeks thereafter; at that time she was laying the foundation for a damage suit, and upon the aclvice of her counsel, accompanied by a friend, she called at the Beauty Parlor and told, defendant’s manager of her injuries and asked him what he was going to do about it. But a year had nearly elapsed before she actually filed this suit.

The hands of defendant’s operator were not affected. It would seem to follow that if the water that fell upon plaintiff’s head was hot it would also have scalded the hands of the manipulator. It Was stranger that this boiling water should have scalded only a “small area” the size of a “silver dollar.” The water was not confined to that small area; it must have spread over all the head, and doing so, if it was hot, it must have burnt a large area, if not the whole head, which it did not do.

The spray was three inches in diameter, and yet the burn was only two and one-half inches.

The part of the scalp scalded was not one blister but “several small blisters” and the evidence is that plaintiff had blisters of a similar kind upon her back and that those were caused by “herpes” which is a cutaneous affection.

Defendant’s operator acquired her knowledge of her business at a school, and after she graduated she was employed at the St. Charles Hotel as manager for three years, and had been at work at the Maison Blanche for one year prior to the accident, and at the time she testified was in the service of the Holmes Company. She never burnt any customer, and such a thing never happened before.

While plaintiff’s medical experts say that the ills the plaintiff suffers from might originate from the burn, Dr. R. M. Van Wart, an authority on nervous and mental diseases, testifies that “there cannot be such a thing as traumatic hysteria where-the trauma is on the head, no more than there can be from trauma to the foot, the same mechanism takes place.” Scalding water upon a person’s head would produce local pain and disappearance in a few days’ time. “I don’t see any reason why a scald on the head should- be any worse than a scald on the hand.”

While the plaintiff testifies that her sight has been affected, Dr. Van Wart says that she told him “she had no glasses and that she never needed them.”

While plaintiff paints such a picture of her wretched health, she appears upon the witness stand in her own behalf for several hours and stands an examination of sixty-one pages, entertaining and answering abstruse questions with a clear mind and unerring precision.

In order to succeed plaintiff must make his case reasonably certain. 3 La. Dig., p. 261.

To make it probable is not sufficient. 13 Orl. App. 41, 1 H. D. 524, L. D. 245; Walton vs. Grant, 2 Martin N. S. 494; Foley vs. Harrison, 5 La. Ann. 91; Mummy L. & Co. vs. Haggerty, 15 La. Ann. 268; Kearney, Blois & Co. vs. Arthur Hauche, 18 La. Ann. 116; E. Carver & Co. vs. W. H. Harris, 19 La. Ann. 121; Jackson & Anderson vs. F. Beling, 22 La. Ann. 378; William J. Beirne vs. James Gill, 34 La. Ann. 7; Lazarus vs. Newman, 52 La. Ann. 1967, 2015, 28 South. 331; Rose vs. Shaw, 144 La. 571, 80 South. 727.

It is a legal axiom that in case of doubt and difficulty the conclusion ought to be in favor of the party who strives to avoid a loss (qui certat de damno vitando), rather than in favor of the party who seeks to secure a gain (qui certat de lucro captando). Bronough vs. Neal, 1 Rob. 23 (24); Therit vs. Chaudoir, 17 La. 445.

In appreciating the testimony in this case the language used in 2nd Evans Pothier on Obligations, p. 198, well expresses the condition of our mind:

“In questions therefore respecting the credit of a witness the want of assent is not founded upon an assurance that his testimony is false, but from the want of an adequate assurance that it is true.”

The law makes it the duty of appellate courts to reverse the verdict of juries as well as the judgments of courts when they believe that they are not supported by the law and the evidence.

Chisolm vs. Rappolo, No. 9656 of this court; 1 La. Dig., p. 894, 597, S. 630; Von Eye vs. Byrnes, 124 La. 769, 50 South. 708; 9 Orl. App. 3.

It is therefore ordered that the verdict of the jury and .the judgment herein be reversed and set aside, and it is now ordered that there be judgment in favor of the defendants rejecting plaintiff’s demand at her cost in both courts.


text:
    No. 9993
    Orleans Appeal
    HARRY S. KAUFMAN v. WM. MAHEN, Appellant
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Courts—Par. 89; Re-convention — Par. 18.
    The City Courts have no jurisdiction o£ a reconventional demand for money exceeding three hundred dollars.
    2. Louisiana Digest — Evidence—Par. 349.
    The testimony in this case establishes that a solicitor of insurance bringing his business to an insurance agent is liable personally to the agent .for the premiums.
    Appeal from the First City Court, Hon. Hy. Renshaw, Judge.
    This is a suit for an accounting.
    There was a reconventional demand.
    There was judgment for plaintiff dismissing the reconventional demand.
    The defendant appealed.
    Judgment affirmed.
    Merrick & Schwarz, M. B. Redmann, attorneys for plaintiff, appellee.
    J. C. Hollingsworth, Samuel J. Tenant, Jr., attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for an accounting.

The plaintiff alleged that the defendant was in its employ soliciting insurance; that he procured certain insurance for which outstanding premiums have not been collected and which are due and owing by the defendant to the plaintiff to th,e amount of $115 as appears by the detailed account annexed; that the defendant is also indebted unto the plaintiff in the sum of one hundred and fifty dollars for money advanced to him which he has failed to return.

The defense is somewhat clouded by exceptions of vagueness, no cause or right of action, and others, and by a seven-page typewritten answer. We extract from it however the following defense.

That the defendant is not indebted to the plaintiff; that on October 25th, 1920, he entered into a written contract with the plaintiff; .that he did write insurance for various parties, but he denies that the list annexed to the petition is a correct statement; that he was employed on a monthly salary and commission to solicit insurance on his own behalf, and to place it through the office of the plaintiff; and he was to be allowed for said business a certain commission, and that all of said business should be exclusively of the defendant or the renewal thereof and not the business of the plaintiff; that the agreement of October 20th, 1920, contains the contract between them, not controlled by custom or usage; that prior to employment by plaintiff, defendant had been engaged in the insurance business and had built up a large clientele of assured who were 'the sole clients of defendant and produced a commission to him irrespective of what'ever office he was connected with; that all of said insurance and the renewals of all policies were the sole property of this defendant who had agreed to solicit business and to place the same through the agency of the plaintiff who was to pay the defendant a salary of not less than $150 per month, and for any excess of business that exceeded in premiums produced the sum of $2,800 an additional amount, and that all of said business was the sole business of defendant; that during his employment he procured large quantities of business and produced in premiums more than the amount of $2,800; that during the course of defendant’s employment .the plaintiff refused to give defendant credit for business written by him and by the assured forming his clientele; that as soon as any insurance was solicited by defendant and the policies issued through plaintiff’s office, the plaintiff did personally charge up the premiums directly against the assured and not against .defendant and that the plaintiff prepared bills on their bill-heads .addressed to the assured, showing that the assured owed the money to the plaintiff and not to the defendant; that it was the consideration for the contract of employment .that the business of the plaintiff and the clientele of the defendant" should not be interfered with .by plaintiff or defendant and that no attempt should be made by either party to change the insurance from the plaintiff to the defendant or vice versa; that the plaintiff both during the contract and after its termination collected large amounts of premiums from parties whose policies had been solicited by the defendant, the collection of said premiums as premiums due by the said insured to the plaintiff, and not to the defendant; that notwithstanding a rule of insurance. that all business solicited by a solicitor and all renewals are exclusively the property of the party insuring, the plaintiff solicited from defendant’s clientele renewals of policies secured by defendant during and prior to his employment with plaintiff; that the áction of the plaintiff in failing to account to defendant for policies written of the clientele of defendant and the claims of the plaintiff to all the commission on the business written and renewed by defendant’s clientele breach the contract between the plaintiff and the defendant and made it necessary for defendant to remove from plaintiff’s office.

And assuming the character of plaintiff in reconvention defendant alleges that by the above acts and by solicitation of defendant’s business and by trying to convert it to himself, the plaintiff caused the defendant to'expend large amounts of time, labor and expense in getting back his business which was his personal property, which he estimates at $1,000.

Defendant prayed that plaintiff’s demand be rejected and for judgment in reconvention in his favor for $1,000.

There was judgment for plaintiff dismissing the reconventional demand. The defendant appealed; p. 9.

At the inception of the trial the plaintiff excepted to the jurisdiction of the City Courts to entertain the reconventional demand for $1,000 on the ground that it exceeded the jurisdiction of the City Court which is limited to money demands “not exceeding $300”, Const. 1921, p. 65. (Sec. 91, Art. VII — Editor’s note.)

The exception was maintained and we think properly. A reconventional demand does not follow the jurisdiction of the main demand in the courts of original jurisdiction; it is only “in all cases where there is an appeal from the judgment in a reconventional or other incidental demand, the appeal shall lie to the court having jurisdiction of the main demand”. Const, p. 35 Sec. 1 (Section 1 Art. VII Editor’s note.)

There are three issues presented in this case: 1st Is defendant liable for the premiums on policies obtained by him; and 2nd for the $150 advanced to him; and 3rd is the plaintiff liable for soliciting policies or renewals from assured who had previously done business with defendant.

The contract dated October 20, 1920, reads as follows:

“The agent (William Mahen) agrees to devote his entire time and attention to soliciting, developing, and promoting the Insurance business for the agency (Harry S. Kaufman, Ltd.) of which he is to receive a stipulated salary of $150 per month. The agent. is to receive a further consideration, to be figured as follows: At the expiration of every three months, should this contract be in full force and effect, and the premiums produced by the said agent, exceed $2,800, on all Fire business in excess of this amount said agent is to receive a further allowance of ten per cent and on all casualty business fifteen per cent and, etc.”

No part of the contract specifies that the solicitor shall be liable for the premiums.

The plaintiff testifies that the custom in relation to that liability in his office and elsewhere is as follows:

“We give a solicitor 60 days in which to pay the premiums. If he does not collect a premium within that time he may return the policy and cancel it flat; in other words, there is no charge. If he ' exceeds that time he is personally responsible for the premiums.”

He had that understanding with the defendant. He had two accounts with the defendant: one a commission account and one a premium account. These premiums are charged to the solicitor’s account.

Mrs. J. R. Strauss, solicitor for the plaintiff for the last .five or six years, testified to the same effect; that she is personally responsible for every amount she puts on the books; that she has 60 days to cancel the policy she writes up; but that after that she is responsible for •each charge she .puts on the books, and that she has paid many premiums which assured did not pay.

Maurice J. Hartson, President of the local insurance exchange, testifies to the same custom and that the solicitor is responsible for the premium.

“If it was the solicitor’s business he was liable and if it was the agent’s business he was not.”

R. S. Soniat testifies to the same effect.

George Hammer testifies as to the balance due by the defendant for premiums $118.64 and $150 advanced on commission to be earned and which were never earned.

There is no testimony to the contrary.

The defendant does not deny the custom testified to by the above witnesses. But he attempts to escape the force of it by making a distinction between one employed on a salary and a commission and a solicitor paid by commissions only. In the first c'ase the business belongs to the employer and the solicitor does not owe the premiums; in the second ease the business is the property of the solicitor and then he owes the premium. But the defendant has alleged and reiterated, ad nauseam, in his answer that all the business he solicited was his, and claimed damages from the plaintiff for attempting in interfere with it.

Defendant would shift the responsibility of the collection of the premiums upon the plaintiff because, after their separation, plaintiff in a conversation, told the defendant that he would attend to the collections of the premiums. But that was done with defendant’s consent and there is no intimation that the plaintiff was derelict in his efforts. But why should defendant, after he had parted from plaintiff worry about the collection of the premium, if he did not consider he was liable for them?

Plaintiff’s ledger shows that all the premiums were charged to defendant’s account, in an account kept in his name and that he had frequent occasion to see the account and did see it and never protested and that no account was kept in the name of the assured.

We think the testimony of the plaintiff establishes the correct relations between the parties and that the defendant owes the premiums.

We are also of the opinion that the plaintiff by his witnesses, has established the correctness of the account sued on.

The judgment was in favor of the plaintiff against the defendant and it is therefore affirmed.


text:
    No. 10012
    Orleans Appeal
    TIMES-PICAYUNE PUBLISHING CO. v. FRANKLIN MOTOR CO., Appellant
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 345, 351.
    Where two witnesses, each testifying in support of his interest in the litigation, give contradictory evidence, the Court will credit the witness whose evidence is supported by the ‘ surrounding circumstances.
    2. Louisiana DigestAppeal — Par. 715, 729.
    Where plaintiff, sues for an advertising account and establishes defendant’s liability therefore, but fails, through inadvertence of counsel, to prove the amount due, the case will be remanded to admit such proof.
    Appeal from First City Court of the City of New Orleans, Section “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit for the cost of advertising.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed and remanded.
    Lawrence M. Janin, attorney for plaintiff, appellee.
    Charles J. Rivet, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for the cost of advertising. The defendant admits the publication, but denies having, authorized the advertisements. There was judgment for plaintiff and defendant hás' appealed.

The case turns upon the effect to be given to the testimony of two witnesses, Edward R. Musso and Lee Mowe. Musso, one of the defendants, was the partner of Raoul Y. DeGruy, his co-defendant, in an automobile agency business, conducted under the name of the Franklin Motor Company for the purpose of selling Franklin automobiles manufactured by the Franklin Motor Car Company of New York. Musso managed the business and DeGruy financed it giving only casual attention to its affairs. Mowe was the advertising solicitor of the plaintiff and claims to have received the data for the advertisement from Musso. The claim of - plaintiff relates to three advertisements, two for which the sum of $8.84 is claimed, refer to the sale of a second hand Peerless car. We cannot allow these items.. Defendants dealt in Franklin care exclusively, except when other makes were taken in trade. There is nothing to corroborate Mowe’s statement that the copy was handed him by Musso, and Musso declares they never had a Peerless car in their place during the year and a half they were in business. It might well be, as suggested by Musso, that the advertisement was given Mowe by some other dealer and mistakenly attributed to defendants.

As to the other items, for which $150.00 is claimed, we are of opinion that it was properly charged to defendants. It is true that Musso denies having authorized its publication and that DeGruy testifies that he had instructed Musso to stop all advertisements because of the contemplated liquidation of the partnership, and that no witness corroborates Mowe’s testimony. Nevertheless, the surrounding circumstances sustain plaintiff’s contention. Mowe testifies that at the time the data for this advertisement was given him by Musso, two photographs, one of DeGruy and one of Musso, together with extensive biographical notes, was also handed him by Musso for use by plaintiff in the preparation of a “news story”. He further testifies that he drove with Musso to the home of a Mr. McCarthy in City Park, where a photograph of a Franklin car was taken which was also to be used in connection with the “news story”. When Musso was on the stand he makes no reference to the trip to City Park and when asked whether he gave Mowe the biographical data and photographs of himself and partner, he says, “not that I remember at that time”.

When the advertisement appeared, the biography and photographs of Musso and DeGruy also appeared in the same issue of the newspaper and on the opposite side of the page as did also the photograph of the Franklin car alleged to have been taken in City Park. Moreover, the Franklin Motor Company had advertised periodically in the plaintiff newspaper prior to the appearance of the advertisements, for the cost of which this suit is brought. Whether Musso had been instructed by DeGruy to discontinue all advertisements is material unless knowledge of that fact can be charged to plaintiff. Plaintiff’s agent was justified in relying on Musso’s authority to act for the partnersip since the advertisement related to partnership affairs and as a matter of fact, he was admitedly the managing partner. We conclude that defendants are liable to plaintiff for the value of the advertising. But there is nothing in the record to show what defendant should pay for the advertisement. $150.00 is claimed, but is not pretended that this price was agreed upon, nor is there any evidence that it is a fair charge. The affidavit of plaintiff’s credit manager attached to the petition, if admissible at all, was not offered in evidence and cannot be considered. We think that in the interest of justice, the ease should be remanded.

For the reasons assigned, the judgment appealed from is reversed and the case is remanded for further proceedings not inconsistent with the views herein expressed, plaintiff to pay the cost of this appeal and all other costs to await the final disposition of the case.


text:
    No. 10015
    Orleans Appeal
    HOFFMAN-SHIRO MOTOR CAR CO., INC., v. J. M. HUDSON, Appellant
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 209.
    An unsworn statement found in the record and not offered in evidence is not proof and cannot be considered whether attached to the petition or otherwise.
    Appeal from First City Court, Section “C”, Hon. W. V. Seeber, Judge.
    This is a suit for an alleged overdraft of employee’s account.
    Judgment for plaintiff.
    Defendant appealed.
    Judgment reversed and plaintiff non-suited.
    J. ,E. Uzzo, attorney for plaintiff, appellee.
    Woodville & Woodville, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, an automobile dealer employed defendant as a salesman and manager of its Used Car Department. It was agreed that defendant should have exclusive charge of this department of plaintiff’s business and his compensation was fixed at 10% of the selling price of all automobiles sold by his department. A controversy arose concerning a commission of fifty-five dollars claimed by defendant upon a sale of a used car by one of the employees in the department over which defendant presided to a man by the name of Truxillo. Failing to persuade plaintiff to allow him a commission on the car, defendant resigned his position. This suit is for an alleged overdraft of defendant’s account in the sum of $156.20. The trial court awarded judgment to plaintiff in the sum of $106.20 and defendant has appealed.

We have carefully searched the record for proof of defendant’s indebtedness without discovering anything to support the judgment. There is an unsworn statement attached to the petition purporting to show a debit balance in the amount sued for, but this statement was not offered in evidence, nor has any witness testified to its correctness. When defendant quit plaintiff’s employ,, he testified that he asked the bookkeeper for a statement of his account and was told that he owed fifty dollars. Whereupon, defendant remarked that that fifty dollars would never be paid since uo credit has been given him for the Trux_ illo sale. It seems to us as it did to the trial court that defendant' was entitled to a commission on the Truxillo sale, consequently, there is no basis whatever to sustain a judgment in plaintiff’s favor.

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

Judgment reversed and plaintiff non-suited.


text:
    Nos. 10,016-10,018 Consolidated
    Orleans Appeal
    JULIUS MULLER v. DAVIS-WOOD LUMBER CO., ET AL., Appellants
    (June 8, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Parties—Par. 27.
    When in an action against two defendants they except that they are commercial partners and must be sued in the name of the partnership, they must give the name of the partnership.
    2. Louisiana Digest — Partnership—Par. 22, 98.
    Parties who carry on business under an assumed name other than their names must conform to Act 64 of 1918, p. 97, or else cannot demand that they shall be sued under the assumed name.
    3. Louisiana Digest — Partnership—Par. 163.
    After the dissolution of a commercial partnership each partner may be sued separately in-his individual name.
    4. Louisiana Digest — Partnership—Par. 129, 139; Action — Par. 81, 82.
    When a defendant dies prior to judgment, the judgment is a nullity and the case must be reopened for a new trial.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    This is a damage suit resulting from a collision of automobiles.
    Judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    John J. Darrieux, W. R. Kinsella, attorneys for plaintiff and appellee.
    Ernest J. Robin, Spearing, Miller & Mabry, John D. Schmidt, Jr., attorneys for defendants and appellants.
   CLAIBORNE, J.

The plaintiff alleged that while his touring car was parked on the downtown side of Toulouse street, between Salcedo and Gayoso, in front of the building No. 3007 Toulouse street, on September 21, 1923, at about 12 o’clock noon, an auto truck, going in the direction of the river (lake) on the downtown side of Toulouse street, owned by the Davis-Wood Lumber Co., and operated by its employee, at an excessive rate of speed, struck petitioner’s car in the rear and damaged it, under the following conditions: While the truck was going in the direction of the river (lake) a Ford coupe owned by Henry Nelson and' Mrs. J. B. Jacobs, proprietors of the Crescent Pottery Works, and operated by L. Nelson, their employee, going at an excessive rate of speed on the downtown side of Toulouse street in the direction of the river (lake) struck the truck in the rear just as it reached petitioner’s car, throwing the truck up against petitioner’s car and damaging it in the rear to the extent of $298.00.

Plaintiff prays for judgment against the Davis-Wood Lumber Company and against Henry Nelson and Mrs.- J. P. Jacobs, proprietors of the Crescent Pottery Works, in solido, for $298.00.

The Davis-Wood Lumber Co. admitted that plaintiff’s car was injured but denied any fault on its part. Further answering, it averred that its truck, heavily loaded with lumber, was proceeding out Toulouse street in the direction of the lake at a speed of ten or twelve miles an hour; that while its truck was about to pass the plaintiff’s car a Ford coupe coming from the rear and going out Toulouse street in the direction of the lake, at an excessive rate of speed, without any warning to defendant, attempted to pass defendant’s truck and in so doing collided with the hub on the left front wheel of defendant’s truck and swerved the front wheel of defendant’s truck, and thus caused it to collide with plaintiff’s car.

The defendants, “Henry Nelson and Mrs. J. B. Jacobs, proprietors of the Crescent Pottery Works,” excepted to plaintiff’s petition on three grounds: 1st, that it disclosed no cause of action against them; 2nd, that there was a misjoinder of parties; and 3rd, that the petition was too vague and indefinite.

The exceptions were overruled. The defendants, Nelson and Jacobs, then filed a general denial as an answer.

There was judgment for plaintiff as prayed for against all defendants.

An application for a new trial was made on the allegation that, anterior to the judgment, Mrs. Jacobs had died. The application was refused.

The Davis-Wood Lumber Co. and Henry Nelson appealed.

EXCEPTIONS

1st. The first exception was couched in mysterious and impenetrable language, for it failed to disclose why the petition set forth no cause of action, and for that reason was entitled to only little consideration. But upon the argument of the case the point was- urged that the defendants were commercial partners doing business under the -name of the “Crescent Steam Pottery Works,” and that they should have been sued in that partnership name.

The petition did not allege that the defendants were commercial partners nor that their partnership Was known by any partnership name.

The defendants rely upon the case of Wolf vs. N. O. Tailormade Pants Company, Limited, 52 La. Ann. 1357, 27 South. 893. But in that case the plaintiffs alleged themselves to be commercial partners dealing under a firm name. Besides, they were plaintiffs, and ex-ceptors in this case are defendants. The defendants here should have alleged that they were commercial partners and should have given the name under which they traded. But they excepted in the names in which they had been sued.

In an action against a‘commercial firm defendant who pleads that all the members are not made parties, must set forth who they are. David vs. Eloi, 4 La. 106.

“An exception that plaintiff is not suing under, his true name must state under what name he can sue.” John Gardiner vs. Benjamin Cross, 6 R. 454.

An exception by defendant who does not disclose his true name, that the one stated in the pleadings is erroneous, may be overruled when the case is tried on its merits, he not objecting nor applying for a continuance. W. D. McCoy vs. A. Sanson, Estate of Carasco, 14 La. Ann. 456.

A defendant who excepts that his Christian name- is not given, must state it. So partners who except that they are not sued in the name of the partnership must give it, for it is peculiarly within their knowledge. Elam Bowman vs. McElroy and Bradford, 15 La. Ann. 663; 31 Cyc. 182-B.

But defendants argue that they carry on business under the name of “The Crescent Pottery Works” and should have been recognized and cited as such. Act 64 of 1910, p. 97, provides: “That no person or persons shall hereafter carry on or conduct or transact any business in this state under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business unless and, etc.,” such person shall first file in the Register of Conveyances a certificate setting forth the name under which said business is conducted and the real names of the persons owning the business.

It is admitted that defendants have not complied With that statute, and they cannot take advantage of their violation of law to defeat plaintiff’s suit. Mahoney & Co. vs. Rector, Wardens and Vestry of St. Paul’s Church, 47 La. Ann. 1076, 17 South. 484.

2nd. But the rule of law invoked by the defendants is that during the existence of the partnership suit must be brought against the firm and not against the individual partners. State vs. Southern Steamship Co., 14 La. Ann. 497. This record shows that before the trial of the case one of the alleged partners, Mrs. Jacobs, died. No possible good could be subserved by remanding the case in order to cite the partnership which has long since been dissolved.

“Commercial partners after dissolution may be sued for a debt of the firm individually, or part of them only, without the rest.” Lambeth vs. Vawter, 6 R. 127 (131); Theard vs. Prieur, 1 La. Ann. 17, 138.

3rd. All persons concerned in an offense are liable in solido and may be joined as defendants. C. C. 2324; Kernan vs. Humble, 51 La. Ann. 389, 25 South. 431.

MERITS

A reproduction and criticism of the testimony of the nine witnesses who have testified in this case would serve no useful purpose. Suffice it to say that six witnesses testify that they saw the accident and that the Nelson-Jacobs Ford ran into the Davis-Wood Lumber Co. truck and shoved it against the plaintiff’s car. See Avegno vs. Hart, 25 La. Ann. 235; Lee vs. Foley, 113 La. 663, 37 South. 594.

They are Muller, Knauss, Dourroux, Faber, Wood and Cadrey. Two witnesses for the defendants, Nelson-Jacobs, namely Leonard Nelson, son of defendant and chauffeur of the Ford, and Joseph Schwem, swear that they saw the accident and that the Nelson-Jacobs Ford passed the Davis-Wood Lumber Co. truck without touching it.

The witnesses for the plaintiff outweigh in number those for the defendant and are of equal credibility.

The trial judge believed them and we believe with him that they spoke the truth.

The witness, R. H. Stansbury, testifies as to the amount of the damage.

It is therefore ordered that the judgment against the Davis-Wood Lumber Co. be reversed and set aside and that there now be judgment in its favor rejecting plaintiff’s demand against it.

It is further ordered that the judgment in favor of the plaintiff, Julius Muller, against the defendant, Henry Nelson, for two hundred and ninety-eight dollars with five per cent per annum interest from September 14, 1924, till paid and for all costs of suit be affirmed.

It is further ordered that the judgment against Widow J. P. Jacobs be reversed and set aside and that a new trial be granted to her and that for that purpose that this case be remanded for a new trial.

The costs of appeal to be paid by Henry ■ Nelson.

Judgment amended and affirmed.


text:
    No. 10050
    Orleans Appeal
    REGINA VALDOZ, Appellant, v. MR. AND MRS. JOHN O'KEEFE
    (June 8, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 59, 351.
    The plea of payment admits the debt and must be proven like any other fact by a preponderance of the evidence.
    Appeal from First City Court of the City of New Orleans, Section “A”, Hon. W. Alexander Bahiis, Judge.
    This is a suit to collect money deposited under a special agreement.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Albert B. Koorie, attorney for plaintiff and appellant.
    E. I. Mahoney, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff, an aged and ignorant negress, brings this suit against the defendants, husband and wife, alleging that the defendants induced her to withdraw her savings to the amount of $309.42 from the bank and deposit same ■with the defendant’s wife, with the understanding that if plaintiff recovered from an illness from which she was suffering at the time the money was to be returned, but in the event of her death, Mrs. O’Keefe, the defendant wife, was to keep the money.-

Defendants answered admitting having received $177.00 of the amount sued for and pleaded payment.

From an adverse judgment, plaintiff has appealed.

In argument in this court counsel for plaintiff admitted his failure to prove that more than $177.00 had been entrusted to defendants and conceded that the record showed that payment had been made to the extent of $93.00.

•There is, therefore, only $84.00 in dispute. As to this amount, we find no proof of payment. Mrs. O’Keefe testifies in a general way that she paid plaintiff all she owed her and a disinterested witness (Mrs. Burns) testifies that she was present when plaintiff received $63.00 from Mrs. O’Keefe and that plaintiff seemed “perfectly satisfied.” There is no written evidence of payment and the verbal testimony hardly amounts to a probability. A defendant pleading payment must prove it. The mere probability of payment will not suffice. Mary Eden vs. Florence Williams, 7611 Orl. App.; Bruno Mitchel vs. Dr. James R. Spears, 7878 Orl. App.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and it is now ordered that there be judgment in favor of plaintiff, Regina Yaldoz, and against the defendants, Mr. and Mrs. John O’Keefe, in the sum of $84.00, with costs of both courts.


text:
    No. 10,053
    Orleans Appeal
    JOHN L. EISWIRTH v. JAS. B. EATON, Appellant
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles — Par. 4 (d).
    When the failure of a defendant to comply with a traffic ordinance is the cause of a collision, he is liable for the damages caused thereby.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from First City Court, Hon. W. V. Seeber, Judge.
    This is a damage suit resulting from a collision of two automobiles.
    Judgment for plaintiff, defendant appealed.
    Judgment affirmed.
    Conrad Meyer, Jr., attorney for plaintiff, appellee.
    St. Clair Adams, Leslie. Moses, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit resulting from a collision of two automobiles.

The plaintiff avered that he was driving his Ford on January 5th, 1925, at about 6:15 p. m. on the lower side of Carrollton Avenue in the direction of the Lake; that on reaching the intersection of Jeannette street a Ford Coupe owned and operated by the defendant James B. Eaton traveling on the upper side of ' Carrollton Avenue, towards the river crossed from the other side of Carrollton Avenue swerved to his left and at about 15 or 20 feet from the intersection of Jeanette and Carrollton Avenue struck plaintiff’s Ford on the left rear fender and wheel with such force as to upset it, and making of it a total wreck beyond repairs; that plaintiff paid $273 for his Ford; that it cost him $5 to tow his car to the repair shop where it still remains at an expense of 25c a day for storage, that plaintiff needs an automobile in his business and he has expended $8 a week since said accident for the use of another auto. He prayed for judgment for $297.25.

The defendant filed an exception of “no right or cause of action” and a general denial.

There was judgment in favor of plaintiff and against defendant for $225.00.

The defendant' appealed. The plaintiff has not prayed for an amendment of the judgment.

The weight of testimony is decidedly in favor of the plaintiff. Four witnesses testify that the defendant ran into plaintiff’s car from the rear and upset it upon the down town sidewalk of Carrollton Avenue.

The defendant alone testified in his behalf. He says the plaintiff ran into him and turned over upon the neutral ground. Of course the trial judge considered the preponderance of testimony was upon the side of the plaintiff and we think he was right.

It also appears that the defendant violated the traffic ordinance. Sec. 7 of Ordinance 7490 gives the right of way to “all streets with street car tracks”.

Paragraph (d) of 'the same Section 7 gives vehicles crossing a neutral ground the right of way to complete the crossing under the following conditions:

“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway shall signal with horn and give opportunity for approaching vehicles in the roadway to come to a stop and c.”

There is no pretence that the defendant stopped his car on any part of the neutral ground or that he blew his horn.

His failure to comply with the ordinance was the cause of the accident, and defendant is therefore liable.

Judgment affirmed.


author: LECHE, J.

text:
    No.-
    First Circuit Appeal.
    SUCCESSION OF EMILE J. LEBLANC OPPOSITION OF A. J. FINNEY
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Attorney—Par. 22. Mandate — Par. 13.
    A contract for the services of members of the legal profession is not a hiring of labor, but a mandate which may be revoked at any time, compensation being due only for services already performed, when revocation takes place unless otherwise expressly agreed.
    Appeal from the Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is an opposition to the tableau of distribution filed by a Testamentary Executrix. The opponent is an attorney who wishes recognition on the account of his fee as attorney.
    There was judgment against opponent and opponent appealed.
    Judgment affirmed.
    Cappel & Planche, of Covington, attorneys for plaintiff, appellee.
    A. J. Finney, of Covington, attorney for defendant, appellant.
   LECHE, J.

The opponent in this case is an attorney at law, and his demand is, that he be adjudged entitled to a fee of three hundred dollars from the Succession of Emile J. LeBlanc, and that he be recognized as a creditor for said amount on the tableau of distribution filed by the Testamentary Executrix.

The fact is that a few days or some short time previous to his death, the deceased Emile J. LeBlanc while sick in bed, requested opponent to call on him. Opponent acceded to this request and called upon LeBlanc and that interview was held in the presence of Mrs. Youngblood, daughter of the deceased and testamentary executrix of his last will and testament. Opponent and Mrs. Youngblood, the only witnesses as to what transpired in the sick chamber of the deceased, are far apart in their testimony. Mrs. Youngblood says that LeBlanc wished to make a written donation entre-vifs, of an automobile to her three' boys and that opponent was called in to draw up the act and this was the sole purpose of opponent’s visit. Opponent admits that this subject was discussed, but claims in addition, that LeBlanc who expected momentarily to die, promised to have him, as attorney at law, to settle his succession.

It is likely if we understand properly the testimony of opponent, that the discussion about an act of donation entre-vifs of the automobile, incidentally brought in the subject of a donation mortis causa of the whole estate of the deceased. Opponent however in his pleadings, does not claim remuneration for passing an act of donation of an automobile nor does he allege that he performed any service in the settlement of the succession. The last' will and testament of the deceased had at the time of the interview, already been drawn up in olographic form, and after the death of LeBlanc, it was probated by other attorneys who were employed by the Executrix to settle the succession. Opponent pitches his cause of action entirely on the fact that he made a contract with LeBlanc to settle the latter’s succession, that the contract has been violated and that he is therefore entitled to remuneration or damages, in the sum of three hundred dollars.

The case might be disposed of by holding that the proof is not sufficiently certain to uphold the alleged contract, but even if it were admitted that Mrs. Youngblood is in error, and that LeBlanc .did on his death-bed, promise to have opponent settle the succession, opponent is nevertheless not entitled to the claim which he urges in the opposition. He is in error in construing the contract as one of hiring of labor. A contract for the services of members of the legal profession is not a hiring of labor but a mandate, which may be revoked at any time, compensation being due only for services already performed, when revocation takes place, unless otherwise expressly agreed. Gurley vs. New Orleans, 41 La. Ann. 75, 5 South. 659; Butchers Union Case, 41 La. Ann. 360, 6 South. 508; Louque vs. Dejon, 129 La. 520, 56 South. 427.

The district court rejected opponent’s claim and that ruling appears to us to be correct and should be affirmed, and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    W. D. HUGHES v. LYON LUMBER COMPANY
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 22, 25.
    One, who seeing a fire caused by the negligence of another makes no effort to protect his property from it although he could have saved it, is contributorily negligent and therefore cannot recover.
    2. Louisiana Digest — Damages—Par. 48.
    One must make every effort to minimize the damage to his property caused by the negligence of another.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit to recover damages due to burning of timber and other combustible property.

      There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    W. S. Rownd, of Hammond, attorney for plaintiff, appellee.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for the recovery of damages caused by fire to his timber, fences and other combustible property situated on his tract of land, situated in the Parish of Livingston. That the fire was set by sparks from a locomotive belonging to or under the control of defendant is not seriously disputed. It started at some distance from plaintiff’s premises, was fanned by the wind, and reached plaintiff’s place where the damage is alleged to have been suffered.

The plaintiff as a witness in the cause, admitted that he saw the fire some four or five hours before it reached his property, that he gave no alarm, went to visit his mother, and finally admits that he made no effort to keep the place from burning. He says, though, that on his way back from his mother, he tried to rake the grass and stuff from around his lumber, but could not do anything with it.

The case appears to us as one in which a person foreseeing a danger or threatened injury caused by the carelessness and negligence of another, makes little, if any effort to protect himself from that danger.

The rule that one must make every effort, to minimize the damage caused by the negligence of another, has become so axiomatic in this State, that it may be admitted without citation of authority.

In the brief filed by defendant, it is stated that a person acting in the ‘manner that defendant did, is guilty of contributory negligence, and may not recover. The reasoning of these decisions appears to be well grounded and we believe should be followed in adjudicating upon this case.

St. Louis Southwestern Ry. Co. vs. Arey, 179 S. W. 860, Sherman & Redfield on Negligence, 6th. Ed. Vol. 3, p. 1770; Stewart vs. Quincy, 142 Mo. App., 232; Hunter vs. Pennsylvania R. C., 45 Penn., S. C. 476.

The district court awarded judgment to plaintiff in the sum of two hundred dollars. We believe that judgment is erroneous, and

It is therefore ordered that the judgment appealed from be avoided and reversed and plaintiff’s demand be refused at his costs.


author: REYNOLDS, J.

text:
    No. 2156
    Second Circuit Appeal.
    TRAVIS H. BEDSOLE v. HILL, HARRIS & COMPANY, INC.
    (June 13, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest' — Negligence—Par. 1, 2.
    Where the employees of defendant waved the driver of a mule team to pass a spot, near where a tree was being sawed, and this tree fell upon a mule of the team killing him, it was gross negligence of the employees, giving plaintiff owner of the mule the right to recover damages.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest — Timber—Par. 9, 14, 15.
    Where defendant manufactured timber wrongfully cut from another’s land into lumber, and, having received the price of the lumber, the defendant cannot be relieved from paying plaintiff for cutting and hauling the logs from which the lumber was made. Nor can defendant claim damages for wrongful cutting of timbers where it was done by plaintiff in good faith.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. L. L. Hooe, Judge.
    This is a suit to recover the value of a mule killed and also for a balance due.

      There was a reconventional demand. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaihtiff, appellee.
    Overton & Hill, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit by Travis H. Bedsole against Hill, Harris & Co., Inc., to recover $185.00, being the value of a mule killed that belonged to plaintiff. The mule was killed by the falling of a tree sawed by defendant’s employees. Plaintiff also sues for the further sum of $238.00, claimed as' a balance due for hauling timber to defendant’s mill at $10.00 per thousand feet under a contract providing that defendant might retain 50 cents per thousand feet of the contract price for the hauling to guarantee performance of plaintiff’s logging contract.

Defendant denied liability for the killing of the mule on the ground that its employees were without fault and that plaintiff’s contributory negligence was responsible for the accident. And it denied liability for the 50 cents per thousand feet of timber hauled reserved on the ground that plaintiff violated his contract by hauling and delivering to defendant 56,915 feet of logs from the land of J. W. Peak on Section 16. And defendant claimed judgment in reconvention against plaintiff for the sum of $569.50 damages therefor and for $20.00 for a check given by defendant to plaintiff that was not paid for lack of funds in the bank on which it was given.

On these issues the case went to trial and there was judgment in favor of plaintiff for $393.05.

Defendant appealed, and plaintiff answered the appeal, praying that the judgment be amended so as to allow him judgment for $423.00.

OPINION

The first question is as to the liability for the mule. The value of the mule is admitted to be $183.00. (Evidence, p.' 11.)

The mule was killed by a tree that defendant’s employees sawed and which fell across the road and on the mule, killing: him.

As to the conditions concerning the killing of the mule, the evidence showed:

J. W. Dorsey testified, page 6:

“Q. Where were you at the time the mule was killed?
“A. I was on my team, about thirty or forty steps ahead of the teams, to the best of my knowledge.
Page.7
“Q. Before you got to the tree, what did you do?
“A. I stopped. We had a hill to pull there and I stopped. I was on the level, and I seen him cutting the tree and I asked him if there was any danger, and he said ‘no.’
* * * *
“Q. What did you ask him?
“A. If there was any danger, and he said ‘no,’ and he flagged me on by.
* * * *
"Q. And you drove by?
“A. Yes, sir.
“Q. How far was Snead’s team behind you?
“A, Right behind me. I started on a little ahead of him, but he had come on up the hill and was right behind me.
* * * *
“Q. Did you see him giving any signal to Snead to stop?
“A. No, sir.
Page 10
“Q. Did you say anything to this man Moffett?
“A. Yes, sir; I asked him what in the world he meant by not stopping the team, and Moffett said he did not know that the tree was as near down as it was. It was cut plumb off and nothing to prevent it going any way it wanted to go.”

L. E. Dorsey testified, page 20:

“Q. What did he do after he stopped?
“A. Asked Mr. Moffett if there was any danger in the tree and Mr. Moffett said, ‘No, there wasn’t any danger, and to come on by,’ and flagged him to come on by.”

Jack Bedsole, page 24:

“Q. Did you see the .man at the tree do anything?
“A. Saw him wave his hand like that, telling him to go ahead; that is all I seen.”
(Witness demonstrates to the court.)
Page 25
“Q. How far was Snead’s team behind Dorsey’s?
“A. When Dorsey, started up, I would say about thirty (30) steps, to the best of my knowledge.
* * * *
“Q. And when Snead got there, the tree fell over?
“A. Yes, sir.
“Q. What did Snead do, if anything?
“A. Pulled his team out to the left and jumped off his saddle mule. If he hadn’t of done that it would have killed the saddle mule, too; it knocked her down and I got the harness and rolled the log back off the saddle mule so that she could get up.
Page 26
‘‘Q. What did you say Moffett done?
“A. Waved him by.
“Q. Did you see him when he waved?
“A. Yes, sir.

O. M. Moffett testified, page 49:

“Q. How many teams came up on that occasion that you all were sawing on that tree?
“A. There were three teams in all.
“Q. They passed by that tree?
“A. The head team passed; there were two teams that didn’t pass right then.
“Q. How far had you all gone with the work of sawing down that tree at the time- that the head team came along?
“A. We had the tree, I reckon, halfway down, or better than half-way down when the first team came by — over halfway down.
Page 50
“Q. Did the ‘Dorsey’ team stop before it reached the tree?
“A. Yes, sir, he just stopped long enough to ask if he could pass.
* * * *
“Q. What did Mr. Hatfield say to him?
“A. He told him to come on by and he quit work and he went on by.
“Q. Did you all work while he was passing by?
“A. No, sir.
* * * *
“Q. At the time that Dorsey’s team passed by, was the tree safe from falling?
“A. Yes, sir.
“Q. At the time that Dorsey’s team passed by, how near was the next, team?
“A. Something about fifty (50) yards • back behind, had just come up on top of the hill.
Page 51
“Q. What did you do after Dorsey’s team had passed on by?
“A. We sawed just a little and Hatfield said to me (interrupted).
“Q. You resumed sawing and sawed a little?
- “A. Yes, sir.
“Q. Please state why you sawed a little more?
“A. So that the tree would fall.
“Q. Then, after you all sawed a little, what did you all do?
“A. Wedged the tree — the other man wedged the tree.
“Q. Who did the wedging?
“A. Mr. Hatfield.
Page 52
“Q. Well, now, before this second team, the ‘Snead’ team, came up, did Mr. Hatfield say anything?
“A. Yes, sir, said: ‘Wait until the tree falls. I can’t tell which way it is going.’
“Q. Did he say anything else?
“A. No, sir.
“Q. To whom did he say that to?
“A. To one of Mr. Bedsole’s drivers, the one whom the mule got killed.
“Q. It was the driver of the second team?
“A. Yes, sir.
“Q. About how far was the driver of the second team from you all when Hatfield told him to wait?
“A. Something like forty (40) or fifty (50) yards, something like that.
* * * *
“Q. How did he tell him, did he talk in a low voice or holler it out to him?
“A. He just spoke it out, didn’t holler it out and didn’t talk in a low voice.
Page 53
“Q. After he told him to wait, that he was putting the wedge in, or whatever he told him, what did you and Hatfield then do?
“A. Hatfield, went to working with his wedges.
“Q. What were you doing?
“A. Standing there holding the saw.
“Q. Did you watch the team any further after that? •
“A. No, sir.
“Q. Did Mr. Hatfield?
“A. No, he had his back to them.
“Q. Did you all continue to work from then on until the tree fell, or did you stop working?
“A. Worked right on until ■ the tree fell.
“Q. On which side of the tree did you have the wedges, on the road side, or— (interrupted).
“A. On the road side.
“Q. Which way were you trying to make the tree fall?
“A. Out from the road.
Page 55
“Q. Did Mr. Hatfield have his face towards this second team or was his back towards it?
“A. His back was towards it.
* * * *
“Q. Then you didn’t notice the team after Hatfield hollered to the driver up until the time that the tree was falling?
“A. No, sir.
“Q. As I understand, you were busy with your work?
"A. Yes, sir.
“Q. Was Hatfield busy, too?
“A. Yes, sir.
Page 58
“Q. That tree was sawed clean off without any splinter being left?.
“A. Yes, sir.
“Q. You say you had sawed it a little better than half-way through when Dorsey called to you?
“A. Yes, sir, probably a little more.
“Q. Now you started to sawing again when Dorsey got by?
“A. Yes, sir.
“Q. You stopped when Dorsey called to you until he passed by?
“A. Yes, sir.
“Q. And the other team was coming on behind?
“A. Yes, sir, and we told him to wait until the tree fell.
“Q. You all went to sawing again?
“A. Yes, sir.
“Q. So when Snead’s team started coming towards the tree when you all went to work, you were not driving wedges?
“A. Yes, sir, I just hit a lick or two with the saw and then stopped and went to driving wedges.
“Q. You said you had sawed it a little over half-way through, you all had to finish sawing it?
“A. I said I may have sawed it a little over half-way through.
“Q. Did it break off or did you finish sawing it off?
“A. We finished sawing it off.
* * * *
“Q. Dorsey passed you?
“A. Yes, sir.
“Q. And you went back to work?
“A. Yes, sir.
“Q. To sawing?
“A. Yes, sir, but very little bit.
“Q. And Snead was coming up with his team?
“A. Yes, sir.
Page 60
“Q. You say Hatfield said — what did Hatfield say to Snead?
“A. Said: ‘Don’t drive under this tree until it falls, I can’t tell which way it is going.’
“Q. And Snead kept on going anyway?
“A. He told him that and then went to driving his wedges, and then turned around with his back to him.
. “Q. Snead was then something like forty (40) or fifty (50) steps away?
“A. Something like that — may have been closer.
“Q. And then Snead kept on coming after Hatfield had told him not to drive up there?
“A. Yes, sir — now he might not have heard him.
Page 61
“Q. He could hear what Hatfield said?
“A. I don’t . know whether he could or not for the' harness was rattling on the teams.
“Q. Didn’t the harness, etc., rattle on Snead’s teams also?
“A. Yes, sir, but the last wagon was farther back. I don’t know whether Snead heard him or not.
“Q. What was he, Hatfield, doing at the time that he hollered to Snead?
“A. Fixing to go to driving wedges.
“Q. And Snead kept on coming?
“A. I suppose he did — I had my back to him — I don’t know.
Page 63
“Q. Why did you all cut that one all the way through?
“A. Well, my corner was laying a little bit and he told me to cut my corner off a little, and his was nearer cut off than I thought it was, and there wasn’t anything • to hold the tree.
“Q. So Hatfield was the one that was responsible for that tree being cut all the way through?
“A. He had it cut more than he thought it was.
“Q. You couldn’t see that?
“A. No, sir.
“Q. Wasn’t the saw almost through the tree before you quit sawing?
“A. Yes, sir, but the men on the opposite side can’t tell anything about ■ that.
“Q. So it was Hatfield’s mistake and not yours?
“A. Well, he was boss of the saw and I was supposed to do what he told me to.
“Q. It was Hatfield that made you cut on through the tree?
• “A. He told me to cut my corner there —he was the one that made the mistake.
Page 64
“Q. Did you tell Mr. Bedsole here and' in the presence of Mr. Dorsey that you were to blame for that accident?
“A. If I did I don’t remember it. I told Bedsole that night that if the muie had to be paid for that I was willing to let .whatever I had in the office at that time go for the mule. I didn’t feel in any .way responsible, but- was willing to do that.
“Q. You felt that Hatfield was responsible for the mule getting killed, but were willing for Mr. Bedsole to take all you had in the office at that time to pay for the mule?
“A: If Mr. Hatfield, my partner, was willing to do it.”

From this evidence it appears that defendant’s employees, who were sawing a tree by the side of the road,, gave the drivers of plaintiff’s train of three or four teams assurance that it was safe for them to pass and waved them to drive by.

This assurance of safety and waving of the hand to the driver of the first team to pass by was, we think, fairly interpreted by the driver of the second team to include himself; for, under the testimony, the first team had been stopped and the second team was moving and was only from thirty to fifty steps behind the first team and never came to a halt; and under the moral of the tortoise and the hare, the second team must have been quite close to. the first at the time the tree fell. After waving the first team by and before the second team had time to pass, the defendant’s employees began sawing on the tree that they knew was likely to fall and that did fall across the - road and kill plaintiff’s mule.

This, we think, was gross negligence.

Defendant’s witness, Moffett, insists that his co-worker, Hatfield, told the driver of the second team to stop, but he says, on page 60:

“Q. And then Snead kept on coming after Hatfield told him not to drive up there?
“A. Yes, sir- — now, he might not have heard him.

And Tom Snead, driver of the second team, testified, in answer to interrogatory five:

“Question. If you state that you were present at this accident, please. state . what you saw and heard, and give in detail what you know of your own knowledge concerning this accident?
“Answer. Three of Mr. Bedsole’s teams were going to the camp with a load of logs. John Dorsey was driving the front team. I was driving the second and Jack Bedsole was driving the third. We were coming along the road and two men were sawing a tree near the road. Dorsey, who was in front of me, stopped his team and hollered if it was all right to come on. . One of the men at the tree, don’t know name, yelled to come on and waved his hand for us to drive on. Dorsey drove on by and I was following with my team] and when I got opposite the tree it started to fall and Moffett jumped out and hollered, but it was too late and the tree fell on the mule and killed it. I asked the man why he didn’t let me know the tree was about to fall and he said he didn’t know it was cut so far through. That’s about all I know.”

J. W. Dorsey testified, page 8:

“Q. How far was Snead’s team behind you?
“A. Right behind me; I started on a little ahead of him, but he had come on up the hill, and was right behind me.
Page 45
“Q. You didn’t hear whether they spoke to the other teamsters and didn’t hear what they said?
“A. If they spoke anything to the other teams I didn’t hear it.”

We are convinced from this evidence that defendant’s employees, without due and sufficient notice to the second team' not to approach, sawed off the tree that' fell across the road and killed plaintiff’s mule, and that the judgment of the District Court as to defendant’s liability oh this item of plaintiff’s demand is correct.

Plaintiff’s second demand is for fifty; cents per thousand feet for the logs hauled and delivered by him to defendant’s mill, under a contract by which defendant was to. pay plaintiff $10.00 per thousand feet for the hauling and was to retain fifty; cents per thousand feet as a guarantee that plaintiff would fulfill his contract

It is not claimed that plaintiff failed, to complete his contract. The evidence] shows that he did complete his contract and defendant is claiming damages against him on the ground that he had moré than completed it by hauling 59,910 feet of timber from Section 16.

As to the timber cut and hauled and delivered to defendant by plaintiff from Section 16, the evidence convinces us that the plaintiff cut and hauled same, believing it belonged to defendant.

He testified, page 67:

“Q. Do you know that it was not the Hill, Harris & Company land?
“A. No, I thought it was.
Page 68
“Q. Did he not tell you in that 'conversation not to undertake to cut any timber until the lines had been run and biased?
“A. He told me to cut this timber here and put it on the skidways, that this was the best timber they had and they wanted it on the skidways.
“Q. You are referring to the Peak timber?
“A. That was the timber that later on Mr. Sasser put up the "lines and showed that it was Peak’s timber.
“Q. You say that Mr. Hill told you to go ahead and cut the Peak timber?
“A. He didn’t- say ‘the Peak timber,’ but said: ‘Go ahead and cut this pine timber and put it on the skid, as it was the best timber that Hill-Harris had.’ It was the timber that proved out afterwards to be the Peak timber.
“Q. You deny that he told you not to cut that timber until the lines had been run?
“A. He never did tell me not to cut it.
“Q. Did he tell you anything about Mr. Sasser going to run the lines?
“A. He told me something about going to hire Mr. Sasser or something, but I don’t remember what it was for.”

J. J. Sasser testified, page 109:

“Q. Did you hear any conversation between . Bedsole and Hill relative to cutting the timber on the Peak property?
“A. I heard a conversation between Mr. Bedsole and Mr. Hill in regard to cutting the timber in that neighborhood. We were then on, or right on, the line -of the property when the conversation passed.
“Q. State what the conversation was?
“A. Mr. Hill and myself and the party I just named went down there and looked at the timber on the Peak property and on Section eleven (11), which was adjoining Peak’s property, and as we were coming back to the car that we went in, which was Mr. Hill’s car, we met Mr. Bedsole, and we sat down and were resting and talking, and the question was asked by John Hill: ‘How much timber do you think there is in here,’ and I answered the question: ‘There is about four hundred thousand’; Mr. Bedsole says: ‘If I knew there was four hundred thousand, there is a truck done bought to truck it out,’ and then I says: ‘It is here’; Hill says to Bedsole: ‘Cut it down and put it on the ramp, this is the kind of timber we need.’ Mr. Hill didn’t say on. which side of the line, whether this or that side, and we were sitting right close to the line on sixteen (16) and seventeen (17).
“Q. Did you hear Bedsole say anything about putting his saw in there in the morning?
“A. He said he would put his saw in there as quick as the ground would pack the timber out; the ground had just been under water, and Mr. Hill said that a man could haul it out by hauling light loads.”

The evidence shows that defendant knew within ten days of the cutting that this timber on Section 16 had been cut, and for more than two months thereafter it continued to receive the logs cut and hauled by plaintiff to it, and it settled with plaintiff for same every two weeks.

Defendant manufactured timber cut and delivered to him by plaintiff from Section 16 into lumber and sold the lumber after it discovered that the timber came off of Section 16, and having received the price of the lumber it cannot be relieved from paying plaintiff for cutting and hauling the logs from which the lumber was manufactured.

Cloud vs. Warner, 157 La. 14, 101 South 794.

The contract under which plaintiff claims being a completed contract, and defendant admittedly having retained under the contract fifty cents per thousand feet of the contract price for cutting and hauling the timber, or $238.00, defendant owes plaintiff this amount.

Ruling Case Law, volume 6, page 990 says:

“The strict performance of a contract may be waived. A person for whose benefit anything is to be done may, if he pleases, dispense with any part of it or circumstances in the mode of performance. Where he is present receiving performance, whatever is not executed is considered as waived, for if objection had been made on the ground of those matters in which the proposed performance was deficient this might have been supplied at the time, and therefore it is not proper to surprise the party who performed the act by an objection to the mode of performance after his vigilance has been disarmed by an apparent acquiescence, for that could be a fraud.”

In the same volume, page 993, the following rule is announced:

“If a contract to furnish movable articles arises after work be done on such articles, the use or retention thereof without giving notice of any objection, is generally treated as an acceptance.
* * * *
“It is necessary to the proper protection of the vendor that the vendee, if he rejects the goods and thereby throws them back upon the vendor should act with reasonable promptness. It would be unjust to permit him to return the goods after inspection and subsequently claim that they were not according to contract. He is bound to express his dissent and thus- enable the vendor to protect his interest.”

We have found no evidence in the record as to defendant’s demand for $20 for a check alleged to have heen given it by plaintiff and not paid for lack of funds in the bank on which it was withdrawn to plaintiff’s credit. This demand of defendant must therefore be dismissed as in case of non suit.

For these reasons the judgment of the lower court is affirmed in part and amended in part.

And it is now ordered, adjudged and decreed that the plaintiff, Travis H. Bed-sole, do have and recover judgment against Hill-Harris & Co., Inc., for the full sum of $423.00 with 5 per cent per annum interest thereon from the date of this judgment.

It is further ordered, adjudged and decreed that defendant’s reconventional demand for $569.15 be rejected, and that-defendant’s reconventional demand for, $20.00 for the unpaid check be dismissed as in case of non suit.

It is further ordered that defendant pay the costs of both courts.


author: CARVER, J.

text:
    No. 2191.
    Second Circuit Appeal.
    CAPITAL LIFE INSURANCE COMPANY OF COLORADO v. JOSEPH R. DUCOTE ET AL.
    (June 13, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Suretyship—Par. 16 17, 18, 19.
    A bond given to secure a contract of agency and one which states was of even date with the bond does not hold the sureties for a debt which an agent incurred at a previous time and owed at the time of the making of the bond, even though the clause, “Including all moneys so received prior to the date; of this instrument (if any such there be), as well as those received thereafter.” The bond was executed with the contract of agency and consequently a debt incurred before coiild not have come under the contract or the bond.
    Appeal from Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. S. Allen Bordelon, Judge.
    ’ This is a suit to hold the sureties on a bond.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    S. W. Gardiner, of Ville Platte; Bordelon & Norman, of Marksville, attorneys for plaintiff, appellee.
    W. E,. Couvillion, of Marksville, attorney for defendants, appellants.
   CARVER, J.

Plaintiff sues Joseph R. Ducote, as principal, and Mrs. C. J. Du-cote and Louis A. Ducote, as sureties, on a bond alleged to have been given by the principal to. secure the faithful performance of his duties as plaintiffs agent.

Plaintiff alleges that he failed to account for $240.00 principal, covered by the bond, for which and for interest and attorney’s fees thereon, it asks judgment.

Annexed to the petition are a copy of the bond and an itemized account of the transactions between plaintiff and Joseph R. Ducote.

The sureties asked oyer of the contract referred to in the bond, in response to which plaintiff filed a contract dated March 29, 1915, and also a supplemental contract bearing the same date. On the back of the main contract was the following notation, namely:

“Cancelled, February 1, 1916.”

And Miss Glass, plaintiff’s bookkeeper, testifies that it was cancelled on that date.

Before answering, the sureties plead that the petition, taken in connection .with the exhibits furnished, disclosed no cause or right of action. On this exception being overruled, the sureties admitted signing the bond but plead that it was only for the faithful performance of the principal’s duties as agent under the contract alluded to in the bond, namely, bearing even date therewith, and denied that the contracts filed were those for which the bond was given.

The defense of the principal was a general denial.

.The district judge gave plaintiff judgment against all the defendants, and the sureties alone appeal.

The bond is dated March 1, 1916.

The itemized account begins April 4, 1915, with an item of cash advanced of $300.00. Thereafter in August, September, .October, November and December, 1915, and January, 1916, down to the 31st of that month, it debits Ducote with various items, most of them being premiums on policies.

On February 1, 1916, the day the contract was cancelled, the debits totaled nearly $1100.00, with no credits at all, except $1.00 itemized thus: “Bal. Snead — Overpaid”, and “Invoice Pioneer Tel. Co. Pd. by Ducote”, 75 cents, and except, also, a check, under date of December 27, 1915, which, though, was unpaid and charged back on January 13, 1916.

Between February 1, 1916, when the contract was cancelled, and March 1, 1916, when the bond was given, are debits amounting to $29.89, only two items of which, amounting to $16.65, were for premiums.

After March 1, 1916, are debits as follows :

March 11, C. Evans, new policy $ 9.97

March 31, J. H. Nicol, new policy 20.98

April 13, J. Detrick, new policy 19.81

November 14,- settlement R. S. Brough

retained 83.70

After this the only debits are recharging of unpaid checks and expenses in connection therewith.

The debit relating to the Brough matter was probably intended to be November 14, 1915, instead of 1916, the account showing transaction on November 11, 1915.

On the day the bond was given the account showed a debit against the principal of over $1103.00, on which nothing had been paid except the 75 cents above mentioned.

The main contract filed in evidence in clause 20 says:

“The agent agrees that he will remit with the application the premium due or to become due on account of the policy applied for.”

The pertinent parts of the conditional clause of the bond are as follows:

“The condition of this obligation is such, that whereas the above bounden Dr. Jos. R. Ducote, (hereinafter called the ‘Agent’), has been under an instrument of writing of even date herewith and hereby referred to, appointed by the company, as its agent, for the purpose of procuring applications- for life insurance, and performing such other duties in connection therewith as may be entrusted to him. Now, if the said agent shall pay or hand over all moneys payable in any event to the company which shall at any time be received by him, or for which he shall be accountable or liable”, * * * “including all moneys so received prior to the date of this instrument (if any such there be), as well as those received thereafter; as, also, all moneys which he now owes, or hereafter may owe, the company on account of advances made or to be made to him in cash or otherwise, and shall now, and at all times hereafter, well, truly and faithfully do and perform all the duties appertaining to his said agency * * * “and shall also on the first days of each month hereafter account for, remit and pay over to the company, or whenever otherwise required so to do by the company, at its office, all moneys due by or from him” * * * “then this obligation shall be void.”

OPINION.

We think the exception of no cause or right of action should have been sustained.

The bond was clearly given to secure a contract of agency and one which it states was of even date with the bond. It clearly contemplated that the principal was thereafter to sell insurance. In all probability the compensation he was to derive from this business was the leading motive which induced the sureties to sign. But at that time there was no contract of agency, the former agency having been terminated a month before and plaintiff not contemplating any renewal of it. There is no allegation or proof that the sureties were informed that Joseph R. Ducote was no longer the agent but had been discharged and probably for his failure to account, and the statement in the bond that he was. appointed that day gave them every right to presume that he was just entering upon the employment. It also gave them the right to presume that he was not indebted to plaintiff.

The clause—

“Including all moneys so received prior to the date of this instrument (if any such there be) as well as those received thereafter”

was no notice at all that the principal was then indebted to plaintiff. The words “moneys so received” in this clause clearly relate back to the words “moneys payable in any event to the company which shall at any time be received by him or for which he shall be accountable or liable”.

The phrase “moneys payable in any event to the company which shall at any time be received by him or for which he shall be accountable or liable” clearly mean, in view of the preamble, moneys received by him or accountable for by him under the contract with reference to which the bond states it was given.

Under such a contract, namely: One made the same day, how could there be any moneys so received or so accountable for?

Evidently the contracting parties had entirely different purposes in view in asking for and giving the bond. That of the sureties was to kelp a relative to obtain lucrative employment. They had no reason, so far as the record shows, to suppose there was any back debt. They contemplated only such liabilities as might arise from future transactions.

Plaintiff had no intention of permitting such liability to arise and its sole purpose was to get security for a back debt.

In candor and good faith it should have asked the sureties to sign, not a bond to secure a contract that day made, but a note to secure one made, broken and cancelled long before that.

It is likely that if the sureties had been asked to sign such an obligation and had been informed that no continuance of agency was intended, they would have refused to do so.

Under the situation presented in this case, that would be the effect of the bond if plaintiff’s contention were sustained.

Plaintiff’s counsel argue:

1. That there is no evidence that the bond was not that mentioned in the agency contract.

But that is not the point. The point is that the agency contracts are not those contemplated by the bond. The sureties signed the bond and it is the measure of their liability. They did not' sign the contracts.

2. That the reference in the bond to the date of the agency contract was a mere oversight due to using a printed form.

There is no allegation or proof of this, though, and no allegation or proof that the sureties had been informed that the agency contract previously made had been cancelled.

If the real date of the contract, March 29, 1915, had been put in the bond 'and the language of the bond made clear that the sureties were assuming obligations arising under that contract, the clause in the bond heretofore quoted reading:

“Including all moneys so received prior to the date of this instrument (if any such there be) ”

would have had an entirely different meaning from what it has when used in a bond referring to a contract made contemporaneously therewith.

We are constrained to -differ from our learned brother of the lower court, and it is decreed that the judgment of that court as relates to the sureties be set aside and that plaintiff’s demand against them be rejected and disallowed. Plaintiff to pay the costs of both courts.