author: MOUTON, J. LECHE, J.,

text:
    No. --
    First Circuit
    REIMERS v. HEBERT
    (May 3, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Evidence—Par. 254; Sales — Par. 23.
    An allegation of fraud may be employed to open the way for the annullment or rescission of a sale or contract affecting real estate, but, in view of Articles 2275 and 2276 of the Civil Code, it cannot have the virtue of investing itself with the power of proving title to immovables by parol.
    2. Louisiana Digest — Evidence—Par. 222, 251, 266.
    Although under Article 1900 of the Civil Code the true consideration of a contract can he shown by parol, nevertheless, under Article 2276 of the Civil Code this can only be shown to supplement necessary information omitted from the contract but not as a contradiction to the recitals of the act.
    3. Louisiana Digest — Possession—Par. 14.
    One who takes possession of real estate before he obtains title is a possessor in bad faith under Article 3451 and 3452 of the Civil Code.
    4. Louisiana Digest — Possession—Par. 19.
    Under Article 508 of the Civil Code a possessor in bad faith has no right to recover for improvements which he put on the land unless the owner keeps the works, in which event he is merely entitled to the value and price of workmanship.
    5. Louisiana Digest — Privilege—Par. 3; Mechanic’s Privileges — Par. 6.
    One who, in bad faith, places improvements on another’s land, has no lien . against the property for the improvements.
    6.Louisiana Digest — Damages—Par. 85.
    Where an alleged contract cannot be proven by legal evidence there can be no recovery for damages for its breach.
    Appeal from the Parish of Jefferson Davis. Hon. Thomas F. Porter, Judge.
    Action by Peter T. Reimers against A. Prudent Hebert.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed in part and reversed in part and case remanded.
    Modisette & Adams, of Jennings, attorneys for plaintiff, appellant.
    John B. Fournet, of Jennings, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff appeals from a judgment maintaining an exception of no cause or right of action.

In the second paragraph of his petition plaintiff alleges that on or about February 9th, 1926, he purchased a lot of ground situated in Lake Arthur, with improvements, from defendant, for the sum of $500.00. In the subsequent paragraph he alleges that on the same day, as part of the purchase price,. he handed to defendant a check of $100.00 which was collected by the latter at the Calcasieu National Bank of Southwest Louisiana. Thereafter, he alleges defendant was to furnish a complete merchantable title to the premises, and was to execute and deliver a good sufficient warranty deed, conveying the property to petitioner, for the price of $500.00 cash, and on delivery of the abstract and deed, the balance of the purchase price, $400.00, petitioner was to pay in cash; that the abstract was delivered to petitioner March 3rd, 1926, when he was informed by defendant that the latter would execute the deed, leave it at the Calcasieu National Bank where petitioner could get it on paying $400.00, balance of purchase price; that defendant, with fraudulent intent, executed a deed before John B. Pour-net, Notary Public, for the sum of $1500.00 which was deposited with said bank; that he tendered the bank $400.00 by check for the balance of the purchase price and demanded the delivery of the deed, which the bank declined to deliver, advising petitioner that the consideration recited in the deed was $1500.00, and that it was authorized to collect $1400.00 before delivering the deed.

Plaintiff further alleges that March 11, 1926, he received a letter from John P. Pournet, defendant’s attorney, demanding that plaintiff pay the $1400.00, in default of which defendant would no longer be bound by the oral agreement to sell the property to petitioner; that on March 17, 1926, the said attorney wrote plaintiff another letter, threatening that if plaintiff did not pay the $1400.00 by March 20, defendant would require plaintiff to tear down and remove at his own expense the improvements he had made on the property. Then follow averments showing the amount plaintiff alleged he incurred .for improvements on the property in labor and materials in addition to the $100.00 plaintiff alleges he paid defendant on the purchase price.

Petitioner further alleges “that while the sale and purchase were made on an oral understanding that the check, the deed and the letters of the defendant and his attorney, are such as to establish the existence of a contract of sale, etc.”

Petitioner further alleges he is entitled to have the deed reformed or corrected so as the consideration expressed will be the true consideration of $500.00 which was agreed upon; that defendant should be compelled to deliver petitioner such a deed and accept the balance of the purchase price, to-wit, $400.00.

In the alternative, plaintiff asks that he remain in possession of the property until he is paid by defendant for the former’s expenses in material, labor and for the $100.00 paid defendant, or until the enhanced value is paid plaintiff.

Plaintiff, in the alternative, again asks, if the above proposition be denied, that he have a privilege enforced against the property for the labor and materials expended thereon. Still in and only in the alternative, he pleads that because of the fraud, deception and chicanery of defendant, or for his breach of contract, he be condemned for the several sums set forth in the petition with legal interest from judicial demand.

Finally, plaintiff prays defendant be ordered to execute a deed upon plaintiff paying him $400.00, and, in default thereof, the judgment of the court operate as a transfer of title to the property, and he prays, in the alternative, for relief under his alternative demands hereinabove referred to.

The foregoing synopsis embodies the allegations of the petition which are pertinent to a proper solution of the issues presented for decision.

In the excerpt quoted above from the petition, plaintiff alleges that while the sale was made on an oral understanding, the deed, check and letters of defendant (which letters the record shows were Written by his attorney) are such as to establish the existence of a contract of sale.

The deed to which plaintiff refers was for $1500.00, and certainly shows no title to defendant for $500.00 which he alleges was the price for the property. The check was for $100.00 and carries no proof that it was in part payment of $500.00 the consideration alleged by plaintiff.

The letters of the attorney, even if they could be taken as binding on the defendant, show that the price claimed by defendant was $1500.00 and which at the same time carried a demand by defendant that the improvements made on the property should be removed, unless plaintiff accepted the sale at $1500.00. It is therefore clear that the check, deed* and letters taken separately or collectively make no proof of a sale for $500.00 for which plaintiff contends. The only way plaintiff could establish his title would be by showing that the real price which had been agreed upon was five hundred dollars. If the case went to trial on the merits, plaintiff would be compelled to prove by parol in accordance with the oral understanding which he alleges, and as against the testimony of defendant, that the true price was not for $1500.00, but was for $500.00. Obviously, to allow this, would be to permit the establishing of title, to real estate by parol. In order, we presume, to get around this difficulty plaintiff therefore alleged that defendant had by fraud, deception and to rob him of his rights, executed a deed for $1500.00, wjhich he deposited with the Calcasieu Bank but required before its delivery to plaintiff that the latter should pay $1400.00, being the amount defendant claimed from plaintiff. In referring to this allegation of fraud, plaintiff contends that fraud “cuts down everything”. In a sense this is true, as the allegation of fraud may be employed to open the way for the annullment or destruction of a sale or contract affecting real estate, but it has not the virtue of investing itself with the power of proving title to immovables by parol in spite of the law which requires such titles to be in writing. This can not be done as parol evidence is inadmissible under allegations of fraud or deception to establish title to real property. Baudus vs. Conrey, 10 Rob. 466. Plaintiff contends that the real or true consideration of a sale of real estate may always be shown upon proper allegations of error or fraud.

This contention is grounded on Article 1900, Civil Code, which reads as follows: “If the cause expressed in the consideration should be one that does not exist, yet the contract can not be invalidated if the party can show the existence of a true and sufficient consideration.”

In Dickson vs. Ford, 38 La. Ann. 376, the court draws the distinction which exists between the rule that permits parol evidence to show the true consideration of a contract and the rule which excludes it if it be admitted against or beyond what is contained in the Acts, under 2276, Civil Code.

Parol evidence, as explained in that opinion, is allowed to show the cause or origin of the obligation, but not when it goes against or beyond the Act, as a contradiction to its recitals, but only when in effect it is offered to supplement necessary information omitted therefrom. Here-, plaintiff alleges that he is entitled to have the deed reformed and corrected so as the consideration expressed will be true consideration of $500.00 which he avers was agreed upon, and he prays that defendant be ordered to execute such a deed or else that the judgment of the court operate a transfer of title.

Evidently, if parol evidence were permitted to be introduced for that purpose it would go squarely against or beyond or contrary, to the recitals of the deed which say that the price or consideration. was $1500.00. If the foregoing allegation can be said not to refer to that deed, plaintiff would then be in a worse predicament as he would then have to rely entirely on parol evidence to establish his title which the law forbids, though allegations of fraud are used to circumvent its purpose.

We now pass to the consideration of the pleas in the alternative urged by plaintiff.

A possessor in good faith is he who has just reason to believe himself the master of the thing, as happens to him who buys a thing which he supposes to belong to the person selling to him, etc. It may be that the purchaser is mistaken, but he must, at least, have bought the thing. In this case, it is clear from the allegations of the petition that plaintiff had a mere oral understanding to buy, and made improvements on the property without having title thereto. He assumed the quality of owner without title and was therefore not a possessor in good faith, but was one in bad faith. C. C. Art. 3451, 3462. As it appears from the allegations of the petition that plaintiff was a possessor in bad faith he has no right to recover for the improvements or enhanced value of the land. Boagni vs. Stamen, 139 La. 851, 72 South. 417. Being a possessor in bad faith, he has no other claim than for improvements as stated in the first thre paragraphs of Article 508, Civil Code. Cannon vs. White, 16 La. Ann. 91. He has a cause of action against defendant to he reimbursed for their value and price of workmanship, under the provisions of that article, as declared in the paragraphs above referred to. Plaintiff, in his alternative plea, claims a privilege on the property for materials and labor expended by him. He undertook to do this work, as appears from his petition, as owner without title, and not for defendant, as owner, and has no lien to be enforced.

In his last alternative plea, he asks damages for the several amounts claimed in damages for the deception and fraud alleged to have been practiced on him by defendant or for the breach of the contract or oral agreement.

In Baudus vs. Conrey, 10 Rob. 466, the court said: “In order to show the breach, the contract must be proved, or, what is the same thing, not proved by legal evidence, there is no longer a breach of it.’’ In this instant case, taking the allegations of the petition as true for the purpose of the exception, no contract could be proved by legal evidence; there was, therefore, no contract, and no possibility of its breach. Patterson vs. Bloss, 4 La. 377, to the same effect. Plaintiff can therefore claim no damages for the breach of a contract which has no existence. Counsel for plaintiff says that the ’ law forbids the introduction of parol evidence to establish title to real estate to preserve inviolate the requirement of written evidence for the conveyance of title to property of that character. He contends that this rule of law should not he invoked to suppress the right to recover damages for breach of an oral contract to sell real estate. The whole gist of the contest here presented is as to whether plaintiff could prove his contract by verbal proof. We hold that he can not, and as a logical sequence it must also be held that he can not recover damages for the inexecution of a contract that never drew the breath of legal life; nor has plaintiff any right to recover damages for the deception and chicanery which were the alleged concomitant results of the alleged violation of the oral agreement.

Plaintiff has a cause of action for the recovery of the $100.00 which he alleges he has paid on his oral agreement with defendant; and for the improvements he placed on the property as hereinabove explained under Article 508, C. C.

It is therefore ordered, adjudged and decreed that the exception of no cause of action be maintained and the judgment be affirmed as to all the demands of the plaintiff, with the exception of the claim for the $100.00 and value of improvements as above restricted; that in that respect the exception be overruled, and the judgment below be reversed; and that this case be remanded to be proceeded with according to law on the two propositions above detailed and specified; defendant to pay cost of this appeal; those below to await the decision of this case.

LECHE, J.,

concurring.

In my opinion plaintiff seeks in this suit to establish a contract creating title to immovable property by parol evidence, and, in the alternative, if he is not permitted to do so, to obtain an award in damages for the violation of the contract. It is obvious that if he can not prove or establish the existence of the contract, neither can he prove that it was violated, for there would then be nothing to violate.

The law is that though title to immovable property may, for fraud, error, etc., be destroyed by parol, it can under no circumstances, not even under charges of fraud, be created by that kind of evidence. Hoffman vs. Ackerman, 110 La. 1076, 35 South. 293. O’Quin vs. Russell, 121 La. 57, 46 South. 100. Hanby vs. Texas Oil Co., 140 La. 195, 72 South. 933.

Where a contract cannot be proved by parol in a suit for its specific performance, neither can it be proved by parol in a suit in damages for its non-execution. Kaplan vs. Whitworth, 116 La. 338, 40 South. 723; Halsmith vs. Castav, 17 La. Ann. 140; Lyons vs. American Cigar Co., 121 La. 596, 46 South. 662; S. Arkansas L. Co. vs. Tremont L. Co., 146 La. 66, 83 South. 378.

ELLIOTT, J., dissents. No written reasons given.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    MAYOR, ETC., OF MORGAN CITY v. JOHN DALTON COMPANY, LTD.
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Municipalities — Par. 85, 90; Mandate — Par. 90, 93; Landlord and Tenant — Par. 10.
    Even though an executive officer of a, political corporation may not lease the property of the corporation without special authorization, nevertheless,' where an unauthorized lease has been made, the tenant has moved in and paid rent, it was validated by the conduct of the parties and neither party can question its validity.
    2. Louisiana Digest — Landlord and Tenant —Par. 102; Attorneys — Par. 70.
    Attorneys’ fees as damages for dissolution of writ of provisional seizure are not allowed if not proven as required by law.
    3. Louisiana Digest — Pleading—Par. 82.
    Typographical errors which are apparent and can neither mislead or deceive defendant can be properly corrected by an amended petition.

      Appeal from the Parish of St. Mary. James D. Simon, Judge.
    Action by Mayor, Etc., of Morgan City against John Dalton Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed..
    Chas. L. Wise, of Morgan City, attorney for plaintiff, appellee.
    C. A. Blanchard, of Morgan City, attorney for defendant, appellant.
   LECHE, J.

The town of Morgan City sues to recover three years’ rent of a batture lot fronting on Berwick Bay, from October 1, 1921, to September 30, 1924, at the rate of sixty dollars per annum. Plaintiff, at the same time obtained a writ of provisional seizure under which certain property of defendant was seized.

Defendant first moved to set aside the Writ of provisional seizure, and on the trial of that motion, the writ was dissolved, but, without damages.

Plaintiff then by supplemental pleadings, obtained another writ of provisional seizure. Defendant again moved to dissolve that writ, it excepted to plaintiff’s petition as not showing a cause of action, excepted to the supplemental and amended petition and finally answered to the merits of plaintiff’s demand.

Evidence on the motion to dissolve was taken and defendant’s exception heard, and on November 17, 1924, according to the minute entries, the exception and the motion to dissolve were all overruled.

The case was then tried on its merits and judgment was rendered on January 18, 1927, as prayed for by the plaintiff. Defendant has appealed.

There is no doubt that defendant used and occupied the property described in plaintiff’s petition during the whole time for which rent thereof is claimed. A municipality generally can only act through its Mayor and Board of Aldermen or Councilmen and its proceedings ought of necessity to be in writing, but in this case the alleged lease was made verbally by the Mayor, without any apparent special authorization on the part of the Board of Aider-men. It is well recognized that a lease of immovable property need not' be made in writing, but an executive officer of a political corporation, as a rule, may not lease the property of the corporation without the special authorization of the body legally entrusted with the management and government of the corporation. Plaintiff on the trial of the case, was unable to show any such special authorization, but it did produce evidence ample and sufficient to justify the court in holding that the lease was validated by the conduct and actions of the parties. It is not questioned that the present demand in this suit is authorized by the Mayor and Councilmen of Morgan City. That of itself is an affirmance of the validity of the lease. It is shown that for some time previous to that for which rent is presently claimed, defendant paid the municipality of Morgan City rent for the use of this same property and this estops defendant from attacking the validity of the lease. So that conceding the fact that there was no special authority to justify the Mayor of Morgan City to enter originally into the contract of lease, the lease has now become a “fait accompli,” and neither party can question its validity.

We find no error in the rulings of the trial judge in refusing damages for attorney’s fees when the first writ was dissolved, for none were proved as required by law.

The amendments permitted by the judge were only as to matters of form and there was no change of the issues involved in the suit. Plaintiff’s petition in the second paragraph contained a. typographical error which was apparent and which could neither mislead nor deceive defendant and the correction of that error was properly allowed by an amended petition.

We believe the judgment of the District Court was correct and it is therefore affirmed.


text:
    No. -
    First Circuit
    SCIVICQUE v. LYON LUMBER COMPANY
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 359, 492, 493.
    An appearance which waives citation of appeal is an answer, a plea, or a motion of some kind on other matters and not the mere written brief of the attorney.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by L. S. Scivicque against Lyon Lumber Company.
    Motion to dismiss appeal sustained.
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellee.
   LECHE, J.

The judgment in this case was rendered in open court, March 4, 1926, and it was read and signed in open court, March 29, 1926, in the parish of Livingston. The order of appeal was signed in a written motion, in the parish of Tangipahoa, at chambers, on January 27, 1927. No citation of appeal was prayed for or ordered.

Defendant, who is appellee, moves to dismiss the appeal.

The term of court at which the judgment was rendered, expired July 16, 1926, and the subsequent term began on September 7, 1926.

The order of appeal was signed on January 27, 1927. It was not signed at the same term during which the judgment was rendered. It was signed at chambers in another parish, no citation of appeal was prayed for, none was ordered served, and none was served.

Since writing the foregoing, plaintiff, who is appellant, has filed a brief in which he claims that appellee has waived its right to have the appeal dismissed, because it has made an appearance in this court, urging other grounds of defense. The record fails to disclose any such appearance.

The case was submitted on brief by both parties. Defendant filed in time, in this court, its motion to dismiss, together with authorities to sustain the motion, and at the same time, filed a brief on the merits of the case, in which at its inception it mentions with reservation that it had already filed a motion to dismiss. It filed no answer to the appeal or other pleas of any kind, outside the motion to dismiss.

An appearance which waives citation is an answer, a plea, or a motion of some kind on other matters, and not the mere written brief of the attorney. Collier vs. M. L. & T. R. R. & S. S. Co., 41 La. Ann. 37, 5 South. 537. Motions to dismiss are always heard in an appellate court at the same time as argument on the merits, and where the case is submitted on brief, it necessarily follows that briefs on both questions may be filed at the same time.

The motion to dismiss must therefore prevail and it is ordered that the appeal herein be dismissed.


author: ELLIOTT, J.

text:
    No. 6522
    First Circuit
    BAGG v. PICKERING LUMBER COMPANY
    (May 3, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant— Par. 160 (g).
    Under Section 31 of the Workmen’s Compensation Act No. 20 of 1914, where an employee’s eye is injured, thereby causing him the loss of his sight at a later date, prescription does not begin to run until his sight is lost.
    „ Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by W. C. Bagg against W. R. Pickering Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Fern N. Wood, of Leesville, attorney for plaintiff and appellee.
    E. C. Hardin, of Lake Charles, attorney for defendant and appellant.
   ELLIOTT, J.

On or about August 3rd, 1922, the plaintiff, W. C. Bagg, was in the employ of W. R. Pickering Lumber Company, the defendant, as a blacksmith’s helper, and while engaged in defendant’s work, was struck in the left eye by a fleak of hot steel. He immediately went to another employee, who looked at the wound and then sent him to the physician in the employ of defendant for treatment. This physician treated plaintiff’s eye for a week or ten days and as it continued to hurt and give pain, at plaintiff’s request, he was taken to another physician, an eye specialist. This physician examined the eye and found it badly hurt. He appears to have done nothing and sent plaintiff back to be treated by the ¡physician in the employ of the defendant. Defendant’s physician continued to treat plaintiff’s eye for the injury re.ceived, as above stated; but it gradually grew worse, though at tim.es it was better. It finally gave plaintiff so much pain that he quit working for defendant and engaged in farming. After ceasing his work for defendant, he employed the service of another physician. This physician administered relief as he could and finally plaintiff returned to the eye specialist. His eyesight was then about gone and some time in June, 1926, he became blind in his left eye, resulting from the wound received as above stated.

Plaintiff then consulted an attorney and this suit soon afterwards followed. Defendant urges that plaintiff’s action is barred by the prohibitive provision of the Compensation Law, Act 20 of 1914, Section 31.

The cause of action did not arise until the sight of the eye was lost. The sight was badly impaired but was not lost until only a couple of months before the suit was filed. The action is not harred by the law-cited. Guderian vs. Sterling Sugar and R. R. Co., 151 La. 59, 91 South. 546.

The judgment appealed from is correct.

Judgment affirmed.

Defendant and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No. -
    First Circuit
    BANDELIN v. CLARK
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Servitudes—Par. 9, 20, 22.
    In selecting a right of passage over an inclosed estate, as provided by Article 700 of the Civil Code, the court will also have due regard for the “convenience” of the owner of the subservient estate.
    2. Louisiana Digest — Servitudes—Par. 9, 20, 22.
    Where the preponderance of testimony shows that the least injury will result and that the convenience of the subservient estate will not be materially affected by the selecting of a certain right of passage, it will be so adjudged.
    3. Louisiana Digest — Judgment—Par. 13.
    Judgment for plaintiff granting a right of passage fifteen feet wide along a section line interpreted with plaintiff’s petition is sufficiently definite.
    Appeal from T'angipahoa Parish. Hon. Columbus Reid, Judge.
    Action by Edmond Bandelin against George Clark.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Amos L. Ponder, of Amite, attorney for plaintiff, appellee.
    A. S. Burns, of Ponchatoula, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff is claiming in this case a right of passage on the estate of the defendant, his neighbor, to connect his estate with a public highway which lies north of plaintiff’s property. The land of the defendant adjoins that of Esterbrook on the east, these two estates being bounded by the line dividing sections 21 and 22. A lane has been used on the land of the defendant east of and along this section line to the highway fpr a period of about twenty years prior to the institution of this suit. Of late, for some reason or other, plaintiff and defendant have not been on friendly terms. A fence was erected across this land by defendant, hence this suit for its removal and for the fixing of the right of passage claimed by plaintiff.

The District Judge rendered judgment, granting the right of way to plaintiff, from which defendant prosecutes this appeal.

The evidence shows that the estate of the plaintiff is inclosed, and that his only outlet to the public road, is either through the old lane on the eastern line of defendant’s property, or on its western line. The defendant contends that plaintiff’s right-of-way should be established on the western line of defendant’s property because along that line it would be less «injurious to his estate, and more convenient to him.

The evidence shows that the house of the plaintiff is situated at a longer distance from the highway along the western line of defendant’s land, than through the lane on the eastern limit of his property. It is shown, however, that the distance is the same, either way, from the “inclosed estate to the public road”, from which point the measurement to the highway must be computed, under Article 700, Civil Code. There is no issue arising in the case on the question of the shortest distance from the “inclosed estate” to the public road, where the passage miist generally be taken as (provided for in the article above cited. The discussion must therefore be restricted to the question involving the issue of the least injury or inconvenience to the defendant in the fixing of the place where the right-of-way should be established.

The Civil Code, Article 700 says: “The place the least injurious, etc.” T'oullier (Yol. 3, No. 548) thus expresses himself on this subject: “Mais le passage doit etre fixé dans I’endroit le moins dommageable a celui sur le fonds duquel il est accordé’’. (684.) Here, the French Commentator uses the words “moins dommageable,” that is, less damaging, or less injurious, which comes near “least injurious,” the precise term employed in the Code. It is testified to by one of the witnesses, and not contradicted, that the placing of the passage through the lane on the east side of defendant’s property, would give considerable additional value to it. Measured in cents and dollars — a prevalent criterion in our days — instead of an injury, a benefit would be conferred on the plaintiff.

In Littlejohn vs. Cox, 15 La. Ann. 67, the court, in passing on a case of this character, has not confined itself to the issue of “least injury” to the person on whose estate the passage is granted. In referring to such a person, the court said: “At the same time that due regard will be paid to his interests, gnd even to his convenience in the premises, the court will keep in view the rights which the law intends to secure to the opposite party”. In that case, the court departed from the strict letter of the Code, broadened its meaning so as to embrace within its terms, matters affecting the “convenience” of the owner of the subservient estate. In this case defendant complains that the right-of-way granted by the court is extremely inconvenient to him. Much testimony was taken on this point, but the preponderance shows that his convenience will not be materially affected by the selection of the way along the old lane which for so many years had been used by common consent, and without complaint.

In the case above cited, the court also said: “The defendants can not exact that an extremely circuitous, impracticable and expensive route should be taken by - the plaintiff, because it may happen to be less burdensome to the former”. The proof' does not show here, that the route, along the western line of defendant’s property would be more circuitous, but it does show, that it would be far more impracticable, and expensive, than through the lane where-it was fixed by the court. We findj as was found in the case cited, that the location as made by the District Judge meets the law and equity of the case.

Counsel for defendant contends that the judgment is not sufficiently explicit. It gives to plaintiff a fifteen feet strip of right-of-way on the east side of the tract of land of George Clark, as described in the petition, next to the property of Easter-brook, from a point on Bandelin’s property through the entire tract of the defendant, George Clark.

The petition asks that the passage be Jaken on the land of defendant along the line which divides or' separates sections 21 and 22. The judgment, as rendered, must be interpreted in connection with that allegation of tbe demand. It will be an easy matter to measure a strip of fifteen feet on defendant’s land, starting from this section line, running it upward to the highway from the corner of plaintiff’s land. The judgment, we think, is sufficiently definite to protect the rights of the parties concerned, and it is, for the foregoing reasons, affirmed, with costs.


text:
    No. --
    First Circuit
    LOUISIANA STATE RICE MILLING CO., INC. v. GAGE
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 164, ’ 165.
    In view of Articles 2108 and 2109 of the Civil Code, a contract to furnish water to raise a rice crop on one hundred and thirty acres is indivisible, and therefore, where water supplied is insufficient to cultivate all of the acreage, there can be no recovery for part of the contract price for the water to be furnished.
    2. Louisiana Digest — Obligations—Par. 147.
    One who is under contract to furnish water from a bayou which becomes salty due to dry weather, is not liable for damages to the contractee, because the condition is a fortuitous event contemplated by Par. 4 of Article 1993 of the Civil Code.
    Appeal from the' Parish of Jefferson Davis. Hon. Jerry Cline, Judge.
    Action by Louisiana State Rice Milling Company, Inc., against Bert Gage.
    There was judgment for defendant and dismissing defendant’s reconventional demand. Plaintiff appealed.
    Judgment affirmed.
    Modisette & Adams, of Jennings, attorneys for plaintiff, appellant.
    John B. Fournet, of Jennings, attorney for defendant, appellee.
   LECHE, J.

Plaintiff sues as the real obligor, under a written contract made by it under the name of the Industrial Development Co., to furnish water to defendant, for the irrigation of a crop of rice. Under the terms of the contract it' obligated itself to furnish defendant water from its canal or pumping plant for the irrigation of about 130 acres of rice on the Richart farm in the parish of Jefferson Davis, and in consideration thereof, defendant promised to pay to plaintiff one-fifth (1/5) of the total number of sacks of rice thus to be grown by him, cultivated and harvested from said crop.

Alleging that it performed its ©art of the contract, that defendant had harvested from said crop one thousand and forty-five (1045) bags of rice of which it was entitled to 209 bags, being one-fifth of the crop, and that defendant had refused to turn the same over in accordance with his agreement, it obtained a writ of sequestration, under which the 209 bags of rice were sequestered and' seized. Plaintiff then prayed accordingly for judgment.

The defense is in substance that plaintiff failed to perform its obligation under the contract, and defendant alleging that he owed nothing to plaintiff, reconvened and prayed for damages against plaintiff, resulting from its non-performance of the contract, in the sum of six thousand, nine hundred and thirty-two ($6932.00) dollars.

The rice sequestered by plaintiff was, by agreement of the parties, sold and the proceeds deposited in bank, to be disposed of in accordance with whatever judgment might be rendered in the case.

Our learned brother of the District Court, after due trial, entered up a well reasoned judgment in which he rejected the demand of plaintiff and also the reconventional demand of the defendant. Plaintiff has appealed and defendant has answered the appeal, and renews his demand for damages, which demand he has increased by an additional sum of Two hundred and fifty ($250.00) dollars.

This case is almost similar to that of the same plaintiff against Albert Baker, 5 La. App. 751, lately decided by this court, the contract in the present case, however, being written, while that in the Baker case was by parol agreement. The evidence in substance shows that plaintiff furnished pure water to defendant sufficient to wet the crop, but thereafter its water supply, which came from Bayou Nez Pique, became so salty, it could not be used without killing or destroying the rice. Employees of plaintiff then attempted to furnish water to defendant by operating a private well, but plaintiff’s manager issued instructions to these employees that it could not continue that kind of service under the rental stipulated in the contract. These facts are admitted by plaintiff’s witnesses. The evidence further shows that defendant made numerous demands upon plaintiff for pure water to irrigate his rice crop and that plaintiff’s agents and employees admitted their inability to comply with the obligations assumed by plaintiff in the contract. Defendant then as a last resort made arrangements elsewhere and was able to get enough pure water from other sources to irrigate and grow a fair crop of rice, the one-fifth part of which was sequestered by plaintiff in this proceeding.

Confronted with this undeniable condition of facts, plaintiff now asks as a matter of equity that defendant be condemned to pay it such proportion of the rental stipulated in the contract, as the water which it furnished for the wetting bears to the water which defendant subsequently obtained from other sources to complete the irrigation of the crop. It also asks in the alternative, that it should otherwise be recognized as entitled to recover the whole rental, as stipulated in the contract, less the expense to which defendant was put in securing the water which he obtained from other sources.

Even if this were feasible, the insurmountable obstacle in plaintiff’s way, is that the contract is indivisible. A mere reading of the agreement shows that the contract was for one whole and entire purpose, that it never was contemplated by the parties that water was to be paid for in proportion to the quantity supplied, and it is clear, that plaintiff was to furnish water to irrigate the whole crop of one hundred and thirty acres regardless of the amount necessary for that purpose. C. C. 2108-2109. Barrow & LeBlanc vs. Penick & Ford, 110 La. 572, 34 South. 691.

For these reasons, we are of the opinion that plaintiff is not entitled to recover and that its demand should be rejected and the writ of sequestration should be dissolved and set aside.

Defendant on his part prays for damages in reconvention on account of plaintiff’s failure to comply with its contract, and he bases his claim on bad faith on the part of plaintiff. It must be observed that in stipulation No. 1 of the written contract, it is agreed that defendant shall not hold plaintiff liable for any damages by failure to get a sufficient supply of water from Bayou Nez Pique or accident to canal line or pumping plant or from any cause whatever over which it has no control. To our minds, it is obvious that the entire and sole cause why plaintiff failed to carry out its contract into complete execution, was one over which it had no control. There is nothing to indicate any bad faith on the part of plaintiff. The water in Bayou Nez Pique became so briny through the elemental forces of nature, that it was unfit to serve the purposes for which it was intended to be used. The cause of plaintiff’s inability to perform was such a fortuitous event or irresistible force as is contemplated by paragraph 4 of Article 1993 of the Civil Code. We are therefore of the opinion, that both under the cited stipulation of the contract and the cited provision of the Code, plaintiff is not liable for the damages claimed by defendant in reconvention.

For these reasons the judgment appealed from is affirmed.


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    No. 682
    First Circuit
    ANDERSON v. HOPE VENEER COMPANY, INC.
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 76.
    Where an agreement was made that a salary of twenty-five dollars a week was to be paid in cash and an additional fifteen dollars per week was to be paid after the debts of the business had been paid, if the business lost money the additional fifteen dollars per week cannot be recovered.
    2. Louisiana Digest — Evidence—Par. 58, 59.
    In a suit to recover a salary, the liability for which is denied by the defendant, under Article 2232 of the Civil Code, the burden of proof is on the defendant to show that he does not owe it.
    Appeal from the District Court, Parish of Tangipahoa. Columbus Reid, Judge.
    Action by F. O. Anderson against Hope Veneer Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. Sidney Burns, of Ponchatoula, attorney for plaintiff, appellant.
    A. W. Spiller, of Hammond, attorney for defendant, appellee.
   ELLIOTT, J.

Suit by former manager, superintendent and stockholder of a corporation, to recover a sum alleged to be due as back salary.

The plaintiff claims of defendant back salary amounting to $1922.42. He alleges that in a statement issued to him as of date, December 31st, 1924, defendant admitted owing him $1532.26 at that time and the statement is annexed to and made part of his petition. That since December 31st, 1924, and up until July 1st, 1925, the further sum of $390.00 became due him in the same way, making a total of $1922.42, which he claims with interest.

Defendant filed an answer, verified by Charles Lohmann, its president, denying the alleged indebtedness.

Charles Lohmann, then acting individually and as a stockholder of defendant, sought to intervene in the suit and join defendant in resisting plaintiff’s demand. The plaintiff objected to his intervention, on the ground that his petition disclosed no right which entitled him to intervene. Plaintiff’s objection was sustained and the intervention disallowed. Intervenor appealed.

Plaintiff objected to defendant’s answer on the ground that it contained inconsistent defenses and prayed that defendant be required to elect. This objection was overruled. The case then went to trial between the plaintiff and defendant and resulted in the rejection of plaintiff’s demand. The plaintiff appealed.

Charles Lohmann alleges an interest and under the law, Code Practice, Articles 390 and 391, “it is enough to have an interest in the success of either of the parties in the suit,” in order to have the right to intervene; but in this case, as the answer of the defendant, puts at issue every matter alleged by the plaintiff, which Lohmann sought to help defeat, and Mr. Lohmann himself appeared as defendant’s representative and every phase of the case was covered, we concluded that it is not worth while to remand the case in order that his intervention may be reinstated.

As for plaintiff’s exception that defendant’s answer contains inconsistent defenses; we do not think them inconsistent. The motion to elect was properly overruled.

Hope Veneer Company, Inc., was organized with Charles Lohmann, Lee W. Hollé, Charles L. Norman and F. O. .Anderson as incorporators, on August 4th, 1921. The capital stock was fixed in the charter at $40,000.00, divided into 400 shares of $100.00 each, but according to the testimony adduced on the trial, only 200 shares were issued and paid for.

When the time came to receive and pay for the stock, Lee W. Hollé did not take any. F. O. Anderson took only ten shares, but Charles Lohmann and Charles L. Norman each took and paid for 50 shares and also took in addition between them 50 shares which Hollé had agreed to take and 40 of the 50 which Anderson was to take.

The corporation did not commence business until about October, 1922, at which time Lee W. Hollé was not connected with it. Lohmann, Norman and Anderson owned all the stock and composed the board of directors, with Charles Lohmann as president, F. O. Anderson as vice-president, superintendent and general manager, and Charles L. Norman, so the plaintiff testified, was supposed to be the shipping clerk, treasurer and looked after the warehouses.

Soon after they commenced business the directors held a meeting and agreed that a salary of $50.00 a week should be charged against the corporation in favor of each of the three parties, but this amount was not to be paid in full; part of it was to be paid each week and the balance was to be left in the business to be used for the purpose of paying for the property equipment, machinery, etc. But after this had been done and money became available for the purpose, then the remainder of the salary was to be paid to the parties to whose credit it was carried on the books. The evidence shows that one of the reasons which induced the directors to charge up back salaries as a liability of the corporation was the effect it had on the Federal Income Tax due by corporations.

Pursuant to the agreement entered into with reference to salary, Anderson at first received $25.00 a week, but after a few months he received $35.00 per week and continued to receive this amount so long as he was connected with the business, and the balance remaining, say $15.00 per week, was charged on the books as a liability against defendant in his favor. This charge running for nearly three years makes up the amount which (plaintiff claims in this case. No partiality is claimed nor pretended to have been practiced, though amounts received were not always the same.

There is no real disagreement between plaintiff and the other two directors on this subject. Plaintiff, examined and cross-examined, repeated the agreement more than once, using different terms. The following is one of his statements in regard to it:

Q. After you finished for what?
A. The balance of the machinery, property and all equipment we had.
Q. Well, I would like to have you be specific about that if you can. According to your understanding, when were you to get this additional $15.00 per week?
A. There wasn’t any specific time mentioned.
Q. I don’t mean that; it had something to do. with the condition of the business. Wasn’t that the idea?
A. The idea was that, from my understanding, we were only to draw part of our salary and the other part was to go on paying the debts on the property and all the machinery which we bought. Then after that, we were supposed to get our back salary, which we had credit for.
Q. And was it specified what sort of debts would be paid before you got that $15.00 additional?
A. No, sir.
Q. It was not specified?
A. No, sir.
Q. Simply understood that it was to pay the debts and then you would get the $15.00?
A. Yes, sir.

Charles Lohmann and Charles L. Norman, testifying about the agreement, are more explicit; but their understanding was not different in any material manner from that of the plaintiff.

The evidence shows that plaintiff understood perfectly well that the $15.00 a week was only a conditional credit, subject to the exigencies and demands of the business in the matter of paying for the property, machinery and equipment'; after which, if funds for the (purpose became available, the back salary was to be paid.

Messrs. Lohmann and Norman testify that they discovered very soon after commencing business that the $50.00 a week salary could not be paid. That payment for the property, machinery and equipment made it necessary to leave this weekly amount in the business in order to meet demands on said account and use it for the purpose of paying same. That the net earning capacity of the defendant did not admit of paying more salary than was actually paid to the parties each week.

Plaintiff in his testimony (note testy, pp. 26 and 27), says that the property, machinery and equipment had been paid for at the time he sold his stock; but he does not maintain and nothing indicates that at that time, or before or since, that there has at any time been money available for the purpose of paying back salaries. He admits in his testimony that after selling his stock to Lohmann, he remained in defendants’ employment a couple of months, erecting machinery and equipment which Mr. Lohmann says had been ordered before Mr. Anderson sold his stock, but which had not been paid for. Mr. Lohmann is supported in the matter by Mr. Norman. The evidence of Lohmann and Norman further shows that at the time plaintiff sold his stock and retired from the business, all of his back salary as well as that credited to themselves, had been used and consumed, ¡pursuant to the agreement of the parties for the purpose of paying for the property, machinery and equipment. That other payments were due and for more than a month, previous to the sale of plaintiff’s stock, in fact the occasion for the sale, wás that the business had been losing money, falling behind and had become involved in serious financial straits and they are clear that there was no funds belonging to defendant available for the purpose of paying back salaries. This testimony was given in the presence of the plaintiff and he took the stand in rebuttal, but was not asked to and did not deny these statements of Lohmann and Norman.

The evidence shows that at a meeting of the plaintiff and the other directors on July 1st, 1925, for the purpose of discussing defendant’s financial condition, Mr. Lohmann proposed to sell out his interest for what he had put in the business; Mr. Norman stated that he was also willing to do that, and Mr. Anderson stated that he was also willing to do that, and the conference terminated in the agreement whereby Anderson sold his ten shares of stock to Lohmann for $1000.00 cash, their face value, and Lohmann gave his personal note to Norman covering the face value of his stock, upon which Norman and Anderson retired from the business, leaving it in the hands of Lohmann to. be worked out as best he could.

Lohmann testifies that when he bought Anderson’s and Norman’s stock, that it was understood with each of them, that the sum received covered all their interest in the business. Norman admits that such was his understanding, but Anderson denies that such was the understanding on his part. His denial, however, is countered by the fact that when he delivered his stock certificate to Lohmann and received his check for $1000.00 in payment, he thought of and reminded Lohmann that the defendant owed him $25.00 for a pump and about $33.00 for some lumber, and requested payment. He admits that Lohmann paid him these sums in addition to the sum paid him for his stock and that he said nothing to Lohman about back salary. If plaintiff had understood at that time that defendant owed him $1,922.46 on account of back salary, he would have almost certainly thought about it and said something about it. It is difficult to conclude that plaintiff would have remembered the amount due him for a pump and on account of some lumber and not thought about this back salary if he had considered that anything was due him by defendant on that account.

He accepted employment from defendant which had become vested in Mr. Lohmann and Mr. Lohmann’s wife and nephew, and worked about two months at fifty cents an hour, and still said nothing about any claim on account of back salary. After about two months he quit and as soon as he decided to quit he called on Mr. Lohmann with reference to back salary. He testifies that when he called on Mr. Lohmann in regard to the matter that Mr. Lohmann did not deny that defendant owed him the amount, but claimed that there was no money with which to pay it, that the money had been used to pay for property, machinery, etc. (note testy, pp. 23). Lohmann says that he informed plaintiff that there was nothing due him on that account and explained why.

Under the law Civil Code Article 2232, the burden of proof was upon defendant to prove the facts, showing that liability to plaintiff on account of this salary does not exist. We find that defendant has shown that the liability claimed by plaintiff does not exist.

The judgment appealed from is correct. Judgment affirmed.

Plaintiff and appellant to pay the cost in 'both courts.


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    No. -
    First Circuit
    BEESON v. SAYERS
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant— Par. 154.
    Act 85 of 1926, amending Act 20 of 1914, the Workmen’s Compensation Act, makes no distinction between single and double hernia, .and, therefore, the courts cannot make this distinction.
    2. Louisiana Digest — Master and Servant— Par. 154, 159, 159 (a).
    Under Act 85 of 1926, amending Act 20 of 1914, the Workmen’s Compensation Act, an injured employee suffering from total disability due to double hernia cannot recover as for total disability under the act but must recover under the provisions covering hernia.
    3. Louisiana Digest — Master and Servant— Par. 159.
    Under Act 20 of 1914, the Workmen’s Compensation Act, as amended by Act 85 of 1926, where an injured employee, suffering from hernia, refuses an operation and a truss or other appliances found necessary, he is entitled to compensation at the rate of sixty-five per cent of his daily wages for a period of twenty-six weeks.
    Appeal from the Parish of Yernon. Hon. Hal. A. Burgess, Judge.
    Action by Willie Beeson against O. B. Sayers.
    There was judgment for plaintiff in part and plaintiff appealed.
    Judgment affirmed.
    Fern M. Wood, o'f Leesville, 'attorney for plaintiff, appellant.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff sues for compensation for hernia. The undisputed facts are that plaintiff was injured while employed by defendant, during the course of, and as an incident to his employment. The injury brought on hernia and the sole issue in the case is the amount of compensation and the term or duration of the compensation.

The Legislature, by Act 85, p. 115, of the Acts of 1926, enacted special provisions on the subject of compensation for hernia and the question to be decided involves the proper interpretation of that statute.

The statute says: “Hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, compensation will be allowed. All other cases will be considered as of slow development, being a disease rather than an accidental injury: * * *.” This language makes it clear that only traumatic hernia, or hernia resulting from the application of force to. the abdominal wall, furnishes legal cause for compensation under the Employers’ Liability Act.

Plaintiff is suffering from traumatic hernia and, under the undisputed facts of the case, is, therefore, undoubtedly entitled to compensation. He contends, however, that he has a double hernia and, for that reason, urges that he is entitled to compensation regardless of the subsequent provisions of the statute on the subject of hernia, because he is suffering from total disability. The law as quoted defines hernia and the causes thereof which entitled the injured employee to compensation, and it makes no distinction between single or double hernia. Where the law makes no distinction, neither should the court make any distinction. “Ubi lex non distinguit, nec nos distinguere debemus,” is a well-recognized maxim of jurisprudence. To hold otherwise would be judicial legislation.

The next provision- of the statute says: “In the case of hernia, as above defined, the provisions of Clause A and Subdivision 5 of Section 8, Paragraph 1, shall apply, until such time as the employee is able to resume some kind of work with the aid of a truss or other mechanical appliance.” We cannot find “the provisions of Clause A” nor “Subdivision 5 of Section 8, Paragraph 1.” There are no such provisions in the statute and this language is therefore unintelligible. But, continuing further, the statute provides: “If the employee refuses to permit an operation, the employer shall meet the requirements above specified, pay reasonable cost of the truss or other appliance found necessary, and also pay compensation for twenty-six weeks after the accident

In the present case the employee refused to be operated upon and he also refused the tender of a truss from defendant. Under these conditions, the language of the statute is clear that the period of compensation is fixed at twenty-six weeks. The rate of compensation, however, is not so easy to determine. The trial judge found that plaintiff was entitled to compensation at 65 per cent of his daily wage of $2.75 for twenty-six weeks. The rate of compensation under the Section (8 of the Act) which contains the provisions relating to hernia is mostly fixed at 65 per cent, and we therefore cannot say that the judge erred in adopting that rate.

Finding no error in the judgment forming the subject of this appeal, it should be affirmed at the cost of plaintiff and appellant, and it is so ordered.


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    No. -
    First Circuit
    HICKS v. WHITE CRANDIN LUMBER CO.
    (May 3, 1927. Opinion and Decree.
    (October 6, 1927. Dismissed on Application for Rehearing by Consent of Parties.)

      (Syllabus hy the Editor.')

    1. Louisiana Digest — Mlaster and Servant —Par. 159, 160 (j).
    Where the preponderance of evidence shows that the injured employee suing for compensation under the Employers’ Liability Act, No. 20 of 1914, received an axe cut in his knee which caused a permanent total disability to his leg, he will recover sixty-five per cent of his daily wage for a period of one hundred- and seventy-five weeks.
    2. Louisiana Digest — Master and Servant Par. 160 (j).
    Where it was judicially admitted that payments of compensation were made on a basis of injured employee’s earning $4.50 per day and the evidence shows that he did earn $4.50 per day, judgment will be on that basis.
    Appeal from the Parish of Vernon. Hon. H. A. Burgess, Judge.
    Action by Josh Hicks against White Crandin Lumber Co.
    There was judgment for plaintiff and defendant appealed.

      Judgment affirmed.
    Pern M. Wood, of Leesville, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   MOUTON, J.

While performing services as an employee of defendant company, plaintiff, on August 11, 1926, received a severe cut on his left knee. He alleges that a serious permanent impairment to his leg resulted from the injury disabling him from performing work of any reasonable character, for which he sues defendant company in compensation -under the Employers’ Liability Act. He recovered judgment for 65 per centum of his daily wage of $4.50 for a period of 175 weeks, for the total permanent loss of the use of his leg. The defendant company appeals.

That plaintiff was injured on his left knee by an axe cut there is no question. The main difficulty to a proper solution of the case seems to arise from the difference in opinion of the physicians in reference to the nature, seriousness and effects of the wound.

They all agree that the patella ligaments were severed by the cut. They differ widely as to whether the lateral ligaments of the knee were stretched, lacerated or cut. T,hey differ also as to whether, since the injury, plaintiff could stand on his leg and could do the work to which he was accustomed. Plaintiff is positive that he can not stand on his leg on account of the condition of his knee, and that since the accident he can do only light work, and can not engage in heavy work of the character in which he was previously employed. The physicians do not agree as to this statement of the plaintiff, but the preponderance of the expert testimony supports the plajntiff in that respect. Plaintiff testifies that after he was injured he was laid on his back for eighteen days with ice bags from his knee to his side. Dr. Douglas, testifying for defendant company, says there was a pretty good incision on the knee, but that the cut did not reach the bone. The preponderance of the testimony, however, shows that the wound was of considerable severity. The fact is that the defendant company placed plaintiff on compensation for a period of a little less than three months, after which he was discharged. The payments made by the company in compensation are not at all referred to as a confession or acknowledgment of its liability, but as a fact, indicate that the company considered plaintiff severely injured or else it would not have continued the payments for that length of time. Dr. Douglas, witness for defendant, though not willing to admit that the injury was severe, said it was in a serious place. In answer to the question if he thought plaintiff would get well, he said, “as near well as he will ever be”. It is true he stated that plaintiff when discharged was able to go to work, as he was at the time of the trial, still, his answer remains that he was as well as he would ever be. The proof is, according to the preponderance of the evidence, that at the time of the trial, plaintiff could not stand on his left leg and that the injury had caused a permanent impairment or disability to that leg. Such being the proof, as he was then as well as he would ever be, according to the opinion of Dr. Douglas, we must conclude that this disability' from which plaintiff suffers is permanent.

Defendant contends that plaintiff can not, however, recover as by using a “brace” to his knee which it is contended is a very simple mechanical device that his leg could he restored to about its normal functions. Let us say that such a restoration could he effected by that simple contrivance, yet, it is evident, that the injury would still remain. There can be no cure for that. Plaintiff might obtain assistance or perhaps relief by the remedy suggested, but that should not deprive him from obtaining compensation for the permanent disability of which he justly complains.

Another defense is that the disability for which plaintiff sues in the instant case, had been caused in a prior accident to his knee which occurred in 1922, while he was an employee of the Lutcher-Moore Lumber Company. Plaintiff admits that a log fell on or struck his left knee at that time; that it had caused considerable swelling which continued for about three months. In that accident it does not appear, as it does here, that there had been any laceration or severance of the patella or lateral ligaments. Plaintiff says as soon as he was discharged, after the accident in 1922, he returned to his work and performed the same services he had rendered before. He is certain that he had recovered completely from the effects of that accident, and that he was not in the least handicapped from doing work of any character, light or heavy. If he had suffered an injury similar in its effects to the one for which he now sues, the disability resulting therefrom would have been permanent, and he would not have been employed by defendant in the heavy work he was doing when his knee was cut in August, 1926. No doubt, his trouble would have been detected, if in reality he could have performed such work, and his services would have been dispensed with.

Counsel for defendant contend that if plaintiff recovers, he should not have judgment on a wage basis of $4.50 per day. In its answer defendant judicially admitted that the daily wages of plaintiff were at that rate. Evidence was permitted to be introduced to contradict this judicial admission on the plea that it had been made in error by counsel. In addition to this plea, we find, it is admitted that the payments in compensation which were made by defendant to plaintiff from August to November, were all on the basis of wage earnings at $4.50 per day. It is not probable that a settlement of that character would have been effected with plaintiff, unless his daily wage was at that rate.

Under such a judicial admission coupled with payments in compensation in the amount above stated, we find no reason to disturb the judgment in reference thereto, nor in any other respect.


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    No. 8709
    First Circuit
    CULLOTA v. WASHINGTON
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus T)y the Editor)

    1. Louisiana Digest — Bills and Notes — Par. 195, 216; Prescription — Par. 221.
    In a suit on a promissory note prescribed on its face the burden of proof is on the plaintiff to show that prescription had been interrupted at the time alleged.
    2. Louisiana Digest — Bills and Notes — Par. 195, 231.
    A mere notation of a credit on the back of a note not signed by the maker or makers not shown to have been made by them nor by their authority, does not establish an interruption of prescription.
    3. Louisiana Digest — Pleading—Par. 25, 42.
    Under the Pleading and Practice Act No. 300 of 1914, Section 1, as amended by Act 228 of 1924, where plaintiff does not in a separate paragraph allege payment on a note, the denial of indebtedness by the defendant will have the effect of denying the payment which would have the effect of interrupting (prescription.
    4. Louisiana Digest — Appeal—Par. 730.
    Where evidence of a payment which would have interrupted prescription of a promissory note was not taken because, under the pleading, the trial- court thought it not at issue, the case will he remanded to the lower court for evidence on that point.
    Appeal from the District Court, Parish of Iberia. Hon. James D. Simon, Judge.
    Action by Mrs. Dominica Barranco Cullota, widow of Anthony Cullota, against James Washington-et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case remanded for new trial on question of payment.
    Porteous R. Burke, of New Iberia, attorney for plaintiff, appellee.
    Louis B. Bryant, of New Iberia, attorney for defendants and appellants.
   ELLIOTT, J.

Suit on note, prescribed on its face at the time of suit, but which purports to have received a credit, before prescription had accrued.

Mrs. Dominica Barranco Cullota, widow of Anthony Cullota, owner and holder of a promissory note for $1808.28, with interest and attorney’s fees, dated March 20th, 1919, payable ten months after date, signed by James Washington and Sylvania White, wife of Ernest White, and Sarah Butler, wife of Sherman Butler, secured by vendor’s privilege and special mortgage on a tract of land described in plaintiff’s petition, brought suit against James Washington, Sylvania White and Sarah Butler to compel payment, alleging a credit on the note of $71.57, paid January 2nd, 1925. The plaintiff also prayed that a vendor’s privilege and special mortgage be reoognized and enforced, for the purpose of securing the payment of the note.

Suit was filed March 10th, 1926. Sarah Butler accepted service on March 11th, 1926, and James Washington and Sylvania White were each cited on that day. They all appeared and answering plaintiff’s demand, denied being indebted unto her as alleged in her petition. They admitted executing the note sued on and the act of sale with vendor’s privilege and special mortgage granted and retained on the land described in plaintiff’s petition; but declared in their answer that the note sued on was prescribed; more than five years having elapsed since it became due, before suit was filed and their prayer is that plaintiffs demand be rejected. The district -judge, for written reasons filed, rendered judgment in favor of the plaintiff as prayed for. The defendants appealed.

The plaintiff offered in evidence on the trial, the note sued on, with the alleged credit endorsed thereon. Defendants objected to the credit endorsement' offered, on the ground that it had not been signed by defendants; nor by any one authorized by them, etc. The court referred the objection to the effect. Plaintiff then offered a certified copy of the act of sale, containing vendor’s privilege and special mortgage granted and retained on the land described in her petition. The case was then submitted to the court hy the plaintiff and the defendants without further evidence.

The note was prescribed on its face, at the time suit was filed and it was barred by prescription, unless prescription was interrupted by a payment made by defendants or some of them or by their authority on January 2nd, 1925. The burden of proof was upon the plaintiff to show that the current of prescription had been interrupted at the time alleged. The mere endorsement of a credit on the back of the note, presumably in plaintiff's hand, not signed by defendants, nor shown to have been made by them, or some of them, nor by their authority, at the time it purports to have been made; does not establish against defendants an interruption of the current of prescription. Splane vs. Daniel, 11 Rob. 449; McMaster vs. Mather, 4 La. Ann. 418; Union Bank vs. Dosson, 7 La. Ann. 548; Adam Beaty Syndic vs. Rose Clement, widow, 12 La. Ann. 82; Maskel vs. Pooley, 12 La. Ann. 661; Munson vs. Robertson, 19 La. Ann. 170; Gordon Syndic vs. Widow Mariah Schmidt, 20 La. Ann. 427; Widow of Charles Dumonchel vs. Lemerick, 21 La. Ann. 30; Widow Alline Boulie vs. James Rainey, 21 La. Ann. 335; Arieux vs. Mayeaux, 23 La. Ann. 172; Brierly vs. John & Tanner, 28 La. Ann. 245. In this case there was no interruption proved, but the plaintiff contends and the trial judge so held, that such proof on plaintiff’s part was not necessary in this case for the reason that defendants, by failing to expressly deny in their answer that they made a payment in the amount and at the time stated in plaintiff’s petition, must be deemed under the Pleading Act 300 of 1914, Section 1 (Amdd. Act 228 of 1924), to have admitted that they did. The amending law quoted, in force at the time the suit was filed, provides that a plaintiff shall state his cause of action articulately, that is to say, he shall state each material fact upon which he bases his claim for relief, in a separate paragraph, separately numbered. That the defendant in his answer shall either admit or deny specifically, each material allegation of fact contained in plaintiff’s petition and that all material allegations of fact, not denied in the answer shall be deemed to have been admitted.

Plaintiff’s petition, Article 1, alleges that defendants are indebted unto her in solido in the sum of $1808.28, with interest and attorney’s fees, less a credit of $71.57 paid January 2nd, 1925. She alleges in Article 2, that said indebtedness is due on a note for said amount, subject to a credit of $71.57, made as of date January 2nd, 1925. A payment interrupting prescription was a material averment at the time the suit was filed. Therefore, such fact, under the Pleading Act, should have been alleged accordingly, and in a separate paragraph, separately numbered. Plaintiff did not do that, but alleged the existence of the debt and the amount, less the credit mentioned in averments 1 and 2 as stated. Therefore, defendants had the right to deny the existence of the alleged indebtedness in Articles 1 and 2 in the manner and form as made and as they did so. They were not called on to deny statements made by plaintiff in her averments Nos. 1 and 2; not alleged as material fact, articulately, in a separate paragraph, separately numbered. Their denial is as specific as the averments. Newspaper Feature Service, Inc., vs. Southern Publishing Co., 140 La. 703, 73 South. 777, cited by defendants.

Every fact stated in plaintiffs averments Nos, 1 and 2 are put at issue by the denial, and plaintiff put on the proof thereof in connection with defendants’ plea of prescription. It was, therefore, error on the part of the trial court, to hold that defendants failure, to expressly deny, that they had made a payment on the note and at the time stated by plaintiff, must be deemed under the Pleading Act, to be an admission that they had done so, thereby giving life to the note and the alleged indebtedness, the existence of which was denied by them, when payment was not alleged by plaintiff as a material fact, in the manner and form prescribed by law.

But we do not think plaintiff’s demand should be finally rejected; we think that she should have another opportunity to prove the interruption of prescription if she can.

For these reasons, the judgment appealed from is annulled, avoided and set aside. The case is remanded to the lower court for a new trial. The plaintiff to have on the new trial, opportunity to show, if she can, by evidence written or parol, that defendants, or some of them, or somebody acting for them and by their authority, made the payment stated by plaintiff to have been made and at the time mentioned. Defendants to have equal opportunity and right to show otherwise.

The cost of this appeal is to be paid by the appellee. That in the lower court is to abide the final result of the case.