text:
    No. 8779.
    Orleans Appeal.
    AMERICAN PAINT WORKS, Appellant, v. METAIRIE RIDGE NURSERY CO.
    (January 5, 1925, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales — Par. 218.
    A manufacturer of paint warrants that it is fit for the purposes for which it is , sold.
    2. Louisiana Digesi, Sales — Par. 244; Damages — Par. 69, 74.
    The measure of damages suffered by an owner for defective materials furnished is the cost of doing the work with proper materials.
    (Civil Code, Art. 2769, Editor’s note.)
    Appeal from Civil District Court, Hon. Fred. D. King, Judge.
    This is a. suit for paints, oils, etc., sold by plaintiffs to defendant. Judgment against plaintiff in main demand and judgment in favor of defendant on reconventional demand. Plaintiff appealed.
    Judgment against plaintiff affirmed and in favor of defendant reversed.
    Hall, Monroe & Lemann, W. K. Leverich, attorneys for plaintiffs and appellant.
    , W. W. Wall, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a suit for $1,876.65 for paints, oils, etc., sold by plaintiffs to defendant, less a credit of $15.35.

Defendants denied any indebtedness, but averred that plaintiffs did sell to him the paints and oils represented as being a high grade paint composed- of white 'lead and linseed oil, whereas the article delivered was a worthless mixture containing practically no white lead or oil; that said paint was sold to him to paint the buildings Nos. 135-137-139 Carondelet Street for which the plaintiff charged the same price as for first quality lead paints; that the substance delivered to him, as paint, was an adulterated product of no value whatever; that, believing that plaintiff had delivered the paint he had agreed to sell and that plaintiff had agreed to buy, the plaintiff caused said building to be painted with said substance, that almost immediately after said buildings were painted, the alleged paint began to peel and scale from the walls and ceilings; that it will be necessary to have all said buildings scraped and repainted with real paint; that the scraping of the paint and repainting of the buildings will cost $5,000, which he claims in reconvention.

There was judgment rejecting plaintiff’s demand, and in favor of defendant against the plaintiff for $2,200.

There is no denial of the fact that the materials mentioned in plaintiffs’ itemized account were furnished to the defendant. The only defense is that the materials were inferior in quality and that within three months after their application upon the walls they peeled off. The only question in this case is whether the plaintiff delivered to the defendant a paint different from that which he had agreed to sell and whether it was the plaintiffá’ fault that the paint peeled off from some of the walls.

The facts of the case are that defendants, wishing to paint their building, inside and outside, bought their paint from the plaintiff. The plaintiff is a manufacturer in this city' of two brands of paint: One called “Climatic” and the other “Shellite”-,: the former for exterior, and the other for-ini teriór painting,’well known to the" deffendants.

The defendants employed one Allison, a boss painter, to do the painting and to furnish the labor and equipments. He was to receive the money from the defendants for his weekly pay rolls, and the compensation for his services was to be ten per cent of the cost.

The defendants were represented by a committee composed of its President, Harry Papworth; Schabmaier, Treasurer, and Lind, Secretary. There was no written contract between the plaintiff and the defendant. Papworth, and no one else, made the verbal negotiations for furnishing the paint. The plaintiffs were represented by Dr. G. A. Mac Diarmid, its President.

Papworth says that “the contract was to supply enough paint to paint the entire building outside and inside, and to use nothing but the best linseed oil and turps and St. Louis white lead, none but pure paint”, and that the Doctor told him that he would not give him anything but pure white lead.

Dr. Mac Diarmid testified that he made no “contract with Mr. Papworth; he was positive; and that he never mentioned to him that he would furnish him with pure St. Louis lead and linseed oil.”

The testimony of Papworth is evasive and entirely unreliable. He swears that he did not order the paint, that he wasn’t in town; in the next sentence he admits that he gave out the contract for it, to Dr. Mac Diarmid. He swears that he had no contract with Allison to do the painting; that he had nothing at all to do with him; yet he admits that he gave him the job. He swears there was no price mentioned with Allison; yet Lind testifies as to the terms and conditions mentioned above.

Papworth swears there was a written contract with the plaintiffs for the paint; but he does' not know what has become of it. Neither Schatmeier nor Lind know of any such writing.

It. is , true that Schatmeier says he was present when Papworth ordered the paint and that Papworth said “he wanted the best quality of paint and in light colors”, but Schatmeier says nothing about “St. Louis white lead”.

Papworth says he has been using paint nearly all his life, and knows pretty near as much as one-half of the painters in town, and that he can tell good paint from bad. Schatmeier also says that he has “done quite a little” painting in his life.

If these defendants had a contract for the best “St. Louis White Lead” it is strange that it should have escaped their attention as members of the Committee that no barrel, nor keg, nor can labelled “St. Louis White Lead” had been delivered to them. The conclusion is inevitable, that they had bought the product of plaintiffs’ plant, and that they knew that it was the article delivered to them.

The boss painter, Allison, supervised the material, and he must have known that no “St. Louis White Lead” was delivered on the job.

Paint was delivered from September 8 to November 28, 1919. Yet no complaint was registered against the quality or brand of the paint from Allison or the Committee for defendants.'

If defendants had protested against the quality or brand of paint, we must presume that the plaintiffs would have acquiesced and furnished any other brand, as they had no contract for any particular brand, quantity, or price, but the silence of defendants in receiving and using the paint was an acquiescence in the brand of paint delivered.

We are bound to conclude, therefore, that the plaintiffs did not agree to furnish St. Louis White Lead, and that the defendants were receiving what they expected, that is, the Climatic and Shellite paints manufactured by the plaintiffs. ..

But as manufacturers plaintiffs were obliged to warrant that the material they sold was paint with all the ordinary qualities of paint and if that material fell below standard that they would have no right to exact the price of good paint. Templeman Bros. Lumber Co. vs. Fairbanks, Morse and Co., 129 La. 983, 57 South. 309. The preponderance of the evidence is that all the paint upon some of the walls peeled and dropped off into flakes. The plaintiffs made no attempt to show that the paint sold and delivered by them was good. Neither Allison nor any one painter who had actually applied the paint was examined in their behalf. Several witnesses for the plaintiffs testified that the walls were damp and caused the paint to crack and peel off in flakes.

But their testimony is not conclusive and should have been corroborated by the painters themselves.

The painting was not. applied to the walls alone. We presume the Goors, and door frames, the windows and frames, and other woodwork in the building were also painted. Of these no complaint was made; on the contrary, it is admitted that it did not peel off from the Beaver Boards.

But the plaintiffs have not shown how much of the paint was applied to the woodwork and how much to the walls. We assume that the value of the paint used on the woodwork is offset by the .cost of repainting the walls, and that therefore the plaintiffs are not entitled to recover the value of the paint used upon the woodwork.

But the defendants are not entitled to recover upon their reconventional demand.

It is not made out with any degree of certainty. A witness testifies offhand without examination that it might cost five or six thousand dollars to scrape off all the plaintiffs’ paint and to apply good paint. But there is no evidence that it is necessary to scrape off all the paint everywhere. The evidence on that subject is confined to two offices and to the hall of the second floor and to the front wall. Schatmaier says that a few minutes after the paint was put upon the walls, it acted like mud and water. If with that knowledge they continued to apply the paint, they brought on their own loss.

But because the materials furnished were partially unfitted for use does not justify the defendants in refusing to pay for that part which has inured to their benefit. The remedy was to haye had the work done over in a proper manner and to have deducted the cost from the whole price due for the paint. 1 H. D. 807, No. 25 C. C. 2769; 2 H. D. 1025 No. 4; 2 Breaux Dig. 657, No. 15; 12 Ct. App. 126.

The defendants have made over only one or two rooms and there is no evidence of the cost; concerning the front wall a witness testifies that it is “as good as a job would be for a cheap paint with the exception of the cornices, which are scaling”.

This case was tried in April, 1922, nearly three years after plaintiffs’ paint had been applied, and there is no evidence that any new painting was done.

It would not be justice to deny plaintiffs a judgment for the price of paint sold by them, and to condemn them, besides, to pay defendants a sum of money which they have not disbursed, or to pay damages which it is not shown they have suffered.

It is therefore ordered that the judgment of the trial court rejecting the demand of plaintiff against the defendant be affirmed; and that the judgment of the trial court in favor of the plaintiff in reconvention, the Metairie Ridge Nursery Company, against the defendant in reconvention, the American Paint Works, Inc., be reversed and set aside, and that there now be judgment in favor of said American Paint Works, Inc., and against the Metairie Ridge Nursery Company rejecting their reconventional demand at their cost.

It is further ordered that the Metairie Ridge Nursery Company pay the costs of appeal.

Judgment against plaintiff affirmed and in favor of defendant reversed.


source: Caselaw Access Project

author:
WESTERFIELD, J. CLAIBORNE, J.
      PER CURIAM.

license: Public Domain

text:
    No. 8997.
    Orleans Appeal.
    WALTER E. TAYLOR, Appellant, v. JOHN E. DOSKEY.
    (January 5, 1925, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused with Reasons. [Claiborne. J., dissents.])

      (Syllabus by the Court.)

    1. Louisiana Digest, Parent and Child— Par. 3, 12.
    An unemancipated minor, whose father is living, and who has not been apprenticed or placed in the care of others, can have no legal residence other than that of his father.
    Appeal from the Civil District Court, Hon. Columbus Reid, Judge.
    This is a damage suit for personal injuries caused hy the negligent act of a minor. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    On a rehearing the amount of the judgment was reduced. '
    Judge Claiborne dissents for written reasons on file.
    A. D. Danziger, attorney for plaintiff and appellant.
    Wm. H. Byrnes, Jr., Harry McEnerny, Jr., attorneys for defendant and appellee.
   WESTERFIELD, J.

Defendant is sued for damages caused by the negligent act of his son, a minor of 20 years of age. It is alleged that defendant’s son entered a pool room where the plaintiff was playing pool and drawing a revolver from his pocket for the purpose of exhibiting it to a friend caused its discharge in some manner so as to wound plaintiff in his left foot.

The defendant contends that his son was not living or residing with him at the time of the accident and that consequently he cannot be liable under Art. 2318 of the Code.

The case was tried by a jury and resulted in a verdict for defendant upon which a judgment was entered, from which plaintiff appeals.

The judge in charging the jury instructed them that in order to hold a parent in damages for the negligent act of his minor child “the child must reside at the time of the accident with the parent whom it is sought to hold responsible.” This part of the charge was excepted to by plaintiff’s counsel who argues that the verdict of the jury upon which the judgment appealed from was based was entirely due to this alleged erroneous statement of the law by the trial judge.

The evidence convinces us that at the time of the accident the defendant’s son was' not actually residing with his father and mother, who at that time were living together, though the father has since died and his heirs have been made parties to this suit. On the contrary, we find as a fact that the son was living apart from his parents with a woman whom he called his wife, thought in fact they were unmarried. The son, a boy of bad habits, had been remonstrated with by his, father, who either ordered him away or by continual reproaches and rebukes caused him to leave the parental home.

Under such circumstances the learned counsel for defendant insists that upon the plain letter of code the parent cannot be liable for the tortuous acts of his son because he (the son) was not residing with his parent. We are referred to Art. 2318, reading as follows:

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

and to Baudry-Lacontinerie (3rd Ed., Vol. 15), pp. 595, 597, 599, commenting upon a similar article of the Code Napoleon, holding that “The 'law subordinates to two conditions the responsibility in question. It required (1) That the author of the wrong be a minor; (2) that he reside with his parents.”

Our answer to this argument is that the question in our judgment has been foreclosed by the decision of the Supreme Court on Rehearing in Toca vs. Rojas, 152 La. 318; 93 South. 108.

It is true that in the Rojas case the court was only passing upon an exception of no cause of action directed to a petition which failed to allege that .the minor resided with his parent at the time of the action of the minor for which it was sought to hold the father responsible, and it is also true that the court expressly stated that

“Whether or not the parental respdnsibility ceases when the minor quits the paternal roof without the consent of: his parents or whether the parents can put an end to parental authority and .respo’nsíbility by'sending the minor away from the parental home, without placing such minor in the care of others is not necessary here to determine and we do not decide.”

In other words, the court simply held that the plaintiff need not make such allegation in his petition because the law presumes thé child resides with his parents. The distinction which the court makes is in the humble opinion of the writer difficult to grasp since it would seem that if the i liability of a -parent for his son’s torts' de-¡ pended upon the fact of residence with him, . that/ ' under familiar principles : .of j pleading, the plaintiff should be required i to allege such residence as a material fact essential to the statement of a cause of action, and that he could only be relieved from such necessity by the immateriality of such allegation. However that may be, •in holding that the presumption is juris et do jure that the unemancipated child resides with its parent the court leaves no room for doubt as to ■ what it would hold when the question is presented on its merits as witness the following excerpts from the opinion:

“The fundamental error upon which the exception of no cause of action is founded, in our opinion, is in assuming that an unemancipated minor, whose father is living, and who has not been apprenticed or placed in the care of others, can have a legal or an actual residence other, than that of his father.”
.“Birth gives rise,to paternal control and authority over the child, and, as was tersely stated in Coats vs. Roberts, 35 La. Ann. 891:
“Paternal responsibility is the consequence and offspring of the paternal authority.”
“The father may delégate a part of his authority over his minor children to teachers, schoolmasters and others to whom he may intrust them for their education — such as the power of restraint and correction— but he cannot permanently divest himself of any portion of the paternal authority, by contract or otherwise. C. C. 220; Gates vs. Renfroe, 3 La. Ann. 569. He cannot send his minor children away from the paternal home unless he places them in the care of others, in which event he remains responsible for their acts'.”
“It, therefore, being the law of the case that the minor, John Rojas, could have no other residence than that of his father, that residence continued until changed in some manner provided by law.”

If, therefore, a minor can have no other residence than that of his father until the law itself decrees otherwise which, as the court points out in its opinion, occurs when .a child is taken away'from its parent by judgment of court, military service or as a ,member'of a posse commitatus or ex propria vogore, the. presumption is juris et de jure that in all other cases the unemancipated minor resides with. his parent and proof to the contrary cannot be received. The suggestion that much that was said in the Rojas case was ohiter cannot be entertained, for the entire reasoning of the case as; well as the sharp dissent by the minority of the court establish the principle which we here apply. It follows, therefore, the father’s liability in this case is not affected by the fact that his son was not actually residing with him at the time he committed the acts for which the defendant is' sought to be held responsible.

To handle. a loaded revolver in a public place and raise the trigger or hammer, as was done by the defendant’s son, was negligence per se, consequently there remains only the question of the quantum of damages.

The proof in this respect is not very satisfactory. The bullet is shown to have entered the plaintiff’s foot and to have been allowed to remain there by attending physicians, who for some reason do not testify. No bones were broken, however, and no claim is made of permanent injury. Plaintiff states that his injury caused him to lose considerable income as an operator and owner of an automobile for hire, which he puts at $250.00 per month. Defendant’s son, who was also in that business, challenges this statement and says that such earnings are not possible. It appears to us to be much exaggerated. The defendants are shown to be in poor financial circumstances and their liability in this case is in derogation of common right since they are held to responsibility without fault.

Under the circumstances we think an award of five hundred dollars to plaintiff would meet the proprieties of the case.

It is therefore ordered that the judgment appealed from be reversed and it is now ordered that there be judgment in plaintiff’s favor and against the defendants in the sum of Five Hundred Dollars, with costs of both courts.

DISSENTING OPINION.

CLAIBORNE, J.

My colleagues are of the opinion that in the case of Toca vs. Rojas, 152 La. 317; 93 South. 108, the Supreme Court, interpreting Art. C. C. 2318 (2297), decided that the father was responsible for the torts of his minor children, whether his children resided with him or not; and so believing, my colleagues, impelled. by that decision have reversed the verdict and judgment of the District Court and have decided this case in favor of the plaintiff. I do not inter pret the decision of the Supreme Court as they do, on the contrary, the. court said on page 326:

“Whether or not the paternal responsibility ceases when the minor quits the paternal roof without the consent of his parents is not necessary here to determine, and we do not decide.”

With my construction of the decision of the Supreme Court, and in the absence of any decision of the Supreme Court on the question other than the Toca case and the case of Coats vs. Roberts, 35 La. Am. 892, I am left free to decide the case as I see it, guided by the Civil Code, and by the lights usually resorted to by Louisiana courts. • ,

Article C. C. 2318 (2297) is copied almost iterally from Article 1384 of the Code Napoleon. Having embodied this Article 1384 in our Code the presumption is that the compilers of the Code adopted with it the meaning attached to it by the framers of the Code Napoleon and by the commentators of that Code.

Prom our Civil Code and from the latter source I gather that residence with the father is of the essence .of his responsibility.

Dumoulin, Yol. Ill, p. 454, No. 6, says:

“The father is hound only m so far as the child resides with him.”
“Fathers will only answer the acts of their minor children residing with them.” Report of counsellor Freilhard on Motives of the Law, Session of Pluviose (January), year 12; 39 Dalloz Rep. Leg., p. 296, Notes 5, 7.
“This responsibility ceases if the children do not reside in the paternal home.” Report of Bertrand de Grenille, 16 Pluviose, year 12 id.
“Two circumstances arS required in order that the civil responsibility of the parents be incurred; the child must be a minor and he must reside with them.” 39 Dalloz, id. p. 414, S. 562; 15 id. Supp., p. 599, No. 723.

To the same effect are: 13 Locre, p. 31, S. 11, p. 59, S. 21; 13 Bandry Lac., p. 1131, S. 2904; 4 Boileux, p. 763; 31 Demolombe, p. 498, S. 573-579; 13 Duranton, S. 715; 5 Larombiere, p. 738, S. 2; 2 Sourdat, p. 65, S. 815.

The question of the residence of the minor' with his father, the defendant, has been settled adversely to the plaintiff by the verdict of the jury and the judgment of the' trial judge who saw and heard the witnesses.

I therefore respectfully dissent.

ON APPLICATION FOR REHEARING.

PER CURIAM.

The majority of the court were convinced that the legal principle upon which the question of liability depended was determined adversely to defendants by the Supreme- Court in the- case of Toca vs. Rojas, 152 La. 318. A reconsideration of that case has confirmed our original opinion. Because of the - unusual conditions obtaining, particularly the- inability of defendants to respond, we have concluded to reduce the quantum’of damages from five hundred to three hundred- dollars. In all other respects, our original opinion and decree is undisturbed and the application for a rehearing is denied.


author: BELL, J.

text:
    No. 8785.
    Orleans Appeal.
    SUCCESSION OF LOUIS MULLER AND HIS WIFE, MRS. HELENA KERNER. (Opposition of William Holland.)
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 715, 729; Executors and Administrators— Par. 378.
    While absence of counsel at the original trial of a suit (except undes conditions prescribed by Act 196 of 1912) furnishes no peremptory cause for. continuance on behalf of counsel’s client, but is rather a matter within the discretion of the trial judge, nevertheless, where it appears on appeal that appellant has, by no fault of his own, been deprived of a fair opportunity to have his cause properly presented and tried, the Appellate Court, in order that the ends of justice might be subserved, will set aside the judgment appealed from and will remand the case for furthér trial.
    (Code of Practice, Art. -1042, 906. Editor’s Note.)
    Appeal from the Civil District Court for the Parish of Orleans, Div. “E”; Hon. Fred D. King, Judge.
    This is an opposition to the final account of the administratrix.
    There was judgment homologating the account but omitting judgment on opponent’s (William Holland’s) account.
    Judgment reversed and case remanded.
    J. J. Wingrave, R. B. Otero, attorneys for accountant and appellee.
    Harold A. Moise, A. B. Hammond, Legier & Gleason, D. V. Doussan, attorneys for opponents and appellants.
   BELL, J.

In this proceeding the administratrix of the Successions of Louis Muller and his wife, filed her final account on the 20th of April, 1921. To this account, two oppositions were ‘ filed, one of them by appellant, William Holland, a creditor of said successions, who'prayed to be'placed upon the administratrix’s account in the sum of §230.40. .

On May 19, 1922, at the hearing of the account and two oppositions thereto, it appears from the record before us that neither opponent, William Holland, nor his attorney,, were present. The court, after hearing the other opposition and allowing it, rendered judgment approving and homologating the account as filed, subject to such amendment. There was no judgment rendered either maintaining or dismissing appellant’s opposition. This judgment was signed on May 26, 1922, and it appears from the record that a motion for a new trial on behalf' of opponent Holland was filed on the same, day, upon which the judgment was signed. This motion reads as follows:

“On motion of D. V. Doussan, attorney of William Holland, opponent to the account herein filed, by the administratrix of this succession, and on suggesting to the court that a judgment was rendered herein, Fri.day, May 19, 1922, homologating said account in spite of the opposition of said William Holland thereto; and on further suggesting to the court that a new trial should be granted herein, because said opposition was tried during the absence of .said-, mover, who eould not be present at the 'trial thereof because on said Friday, May 19, 1922, his father was buried; that mover had'the court notified on the morning. of. said Friday that he could not appear in court on said day for the reason above stated, and requested a continuance of this case before'this court; and bn further suggesting that this court agreed to continue sai.d. cases;
“It, is ordered by the court that the administratrix of .this succession .show cause, if any she had, on the_____1. day of________________, why a new trial should not be granted to .William Holland on his opposition to her account.
‘‘New Orleans, May 26, 1922.”

The record shows that the foregoing motion, and order was refused by the trial .judge an,d that,, accordingly, opponent, William Jlplland, applied for and obtained a suspensive appeal from the judgment homologating the'account.

There is nothing in the record, nor has any proof on behalf of appellee been submitted to this court by which the allegations set forth in the motion for a new trial are in any manner challenged or denied, and taking the record as we find it, the facts as set forth in the motion for a new trial, appear, to us to be such as to justify the exercise of this court’s discretion in remanding the case so that opponent and appellant may have his day in court.

While none of the reasons stated in the motion are legal reasons for our holding that the judgment, as rendered, was contrary to the law or the evidence before the court, and while neither the court practice nor the jurisprudence of this State, establishes as a peremptory cause for continuance by the trial court of a case because counsel representing a party interested, is absent from the trial, we are of the opinion that because of the circumstances of this case, the opponent and appellant has not, through any fault of his own, been given an opportunity to have his case presented and tried as justice and equity would demand.

Act 196 of 1912 presents the only peremptory cause known to our law- for the continuance of a trial of’ a case because -of absence of counsel.

After careful examination and research, we find in the following cases a judicial inference that in the absence of counsel, because of physical disability or similar reasons, the trial court would not be justi fied in denying a continuance when such conditions are presented and when timely application for such relief is submitted to the court. In Johnson vs. Dean, et al., 48 La. Ann. 100, 18 South. 902, the Supreme Court refused to set aside the judgment appealed from, in the following language:

“No legal showing was made for a continuance and we cannot disturb the judgment. No statement was made that the counsel were absent because (if physical disability.”

In Anderson vs. Arnett, et al., the Court refused to disturb the judgment appealed from on the grounds of absence of counsel, noting, however, that no good reason why counsel had been absent was presented to the court.

In Meyer vs. Pritchett, et al., 8 Ct. App., this Court refused similar relief upon grounds stated in the syllabus of the opinion as follows:

“Absence of counsel at the trial of a case not satisfactorily accounted for nor seasonably brought to the attention of the lower court, is insufficient ground for remanding the case for a new trial, particularly where it appears upon the face of the papers that the defenses set up in the answer could not, on technical grounds, be proved.”

Exercising the discretion vested in this court, and considering the record before us, which additionally discloses the fact that the account filed is not sworn to and that no proof whatever was made as to the correctness of the account homologated, such as is required by Article 1042, C. P., we are of the opinion that the ends of justice would be better subserved by setting aside the judgment appealed from and remanding this case for further trial, in conformity with this opinion. *

It has been held that where on the homologation of an account, opposed or not opposed, the evidence is not taken down, the case will be remanded. (See Garland’s Code of Practice, Art. 1042, p. 731, and authorities there cited.)

It is, therefore, ordered that the judgment appealed from be and the same is hereby set aside, and this case is now remanded to the District Court for further trial, in accordance with law.


author: WESTERFIELD, J.

text:
    No. 8787.
    Orleans Appeal.
    EVERETT G. LAWRENCE, Appellant, v. MOUNT ZION BAPTIST CHURCH.
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Error and Mistake— Par. 2, 15.
    Error as to the principle cause of a contract, no matter how or by whom induced, vitiates consent and invalidates the contract.
    (Civil Code, Arts. 1819, 1820, 1847, 1923, Editor’s note.)
    Appeal from Civil District Court, Parish of Orleans, Div. “D”, Hon. Porter Parker, Judge.
    This is a suit for alleged damages for breach of contract. There was a reconventional demand. Judgment for defendant on both main and reconventional demand.
    Judgment affirmed.
    Sanders, Brian & Sanders, attorneys for plaintiff and appellant.
    Eraste Vidrine, Wm. R. Kinsella, attorneys for defendant and appellee.
   WESTERFIELD, J.

This is a suit for damages alleged to be caused by the breach of a contract to purchase certain real estate belonging to plaintiff. The facts are as follows:

Plaintiff owned the property No. 221 S. Liberty Street, between Tulane Avenue and Gasquet Streets, and placed the same in the hands of the Fellman Real Estate Agency for sale. It happened that this agency also had another and a larger piece of property for sale situated on South Liberty Street, between Tulane Avenue and Gravier Street, and on the opposite side of the street from plaintiff’s property and distant about one city block. Next door to the larger piece, there lived one Dora Johnson, a member of the congregation of the Mount Zion Baptist Church. Dora noticed the Fellman sign on the property next to her indicating that it was íor sale and knowing that the Mount Zion Baptist Church desired to secure a building site which would permit of the erection of a larger church than its present house of worship, reported to the congregation that the property next to her was for sale. The next day the pastor of the church, W. M. Cosey, visited the property and was greatly impressed with its advantages as a site for the new church. Fearing that another negro organization, for the Mount Zion Baptist Church administered to the spiritual grace of the members of that race, Cosey immediately repaired to the Fellman office and without more ado agreed to buy “the two buildings known as 221 S. Liberty, between Tulane and Cleveland Avenues, block Howard Street” for the sum of $4,500, in the name of “Dr. W. M. Cosey, Chairman” and on the same day, deposited $450 on account of the purchase price. “Dr. Cosey”, however, stated that he was acting for his church and it would be necessary that his action be ratified. A few days thereafter, a meeting of the Board of Trustees of the Church was held and the following resolution was adopted:

“New Orleans, April 27, 1920.
Special Meeting.
Mt. Zion B. Church:
Meeting open at 8:30 o’clock p. m. with Rev. W. M. Cosey, pastor, presiding. Read Heb. 10th chapter, sing hymn, I love thy Kingdom Lord pray by bro Tom Tucker after which the paster stated the object of the call which was to consider the report of the committee on a site to build our church.
Committee Report
Mt. Zion Church paster and members, we submit this our report. We have three sits, two lots Boliver near Perdedo, and the old Grace Church lot Bienvil near Liberty. A place on Liberty between Gravier and Tulan.
On motion by bro Charley Hayse the report of the Committie be received and acted upon.
After some remarks the following resolution was adopted:
Between Gravier and Tulan that whereas the property on Liberty street seems large enough and very near our present Church and having a frame and brick building thereon. Resolve that the paster with the Bord of Trustees be hereby impowered to purchesard lot or lots with improvement on for the sum of $4,500.00.
On motion by bro. E. D. Shanon, the Sum of $450.00 will be paid as reported by the paster as part payment on same. .
Motion by bro James Rentrop we now adjoin.
Dismiss by
REV. W. M. COSE’Y, Chairman.
L. M. KING, Clerk.”

It will be observed that the meeting was opened by reading the 10th Chapter of Hebrews. In view of what subsequently transpired, the 1st verse of the 11th Chapter of that book would have been appropriate:

“Now faith is the substance of things hoped for and the evidence of things unseen.”

A committee of the Church visited the site for the purpose of cleaning it up and preparing it for rent until such time as building plans could be underway and found another committee representing the Lammany Club in possession, asserting title in a practical manner by driving the church committee off the premises.

The pastor, Rev. W. M. Cosey, then calls upon Mr. Rosenberg of the Fellman Agency and is reassured by that gentleman stating that if the Fellman sign is on the property, it is theirs, for Fellman has only one piece of property in that neighborhood for sale. The truth, however, is soon revealed to the Church and they discover that they have obligated themselves to buy plaintiff's property which is only 28 feet wide, whereas, their present church which they had hoped to enlarge, is 50 ft. wide, and moreover, the Everett property- is within 50 feet of another negro church and wholly undesirable for their purpose. The larger property next door to Dora Johnson which they had been looking at and which they thought they had purchased had been in Fellman’s hands for sale, but was sold by Fellman a few weeks before to the Tammany Club, though the title, had not been passed or the sign removed. Both properties had two buildings erected on them and both were on S. Liberty Street, though one was a block nearer Canal Street. The larger piece bore the sign of the Fellman Agency and it is not shown that the smaller piece belonging to plaintiff did. The receipt given Cosey and the agreement to purchase referred to the municipal numbers 321 So. Liberty Street, but the testimony'is that the numbers are not Visible from the sidewalk due to the fact that the buildings are on the rear of the lot.

The defendant avers that, there was error of fact vitiating the contract.

Art. 1819 R. C. C., provides that there is no consent when produced by error, fraud, violence or threats.

Art. 1820 R. C. C., provides that error as applied, to contracts is of two kinds: Error of fact and error of law.

Art. 1923 R. C. C„ provides that. error to invalidate a contract must be in some point which was a principal cause for making the contract “and it may be either as to the motive for making the contract, to the person with whom it is made, or to the' subject matter of the contract itself.”

In the case of H. C. Newman vs. Scarborough, 115 La. 864, 40 South. 248, it was held: “A consent given in error is no consent and without consent there is no contract,” and in Schmidt vs. Peterson, 113 La. 134, 38 South. 915, the Court said: “It is very certain that the minds of the parties never met upon the object or thing which was made to appear as the object contracted for.”

It is evident that the plaintiff’s agent thought he was selling one piece of property and the defendants thought they were buying another. There is no charge of fraud and we are convinced of the good-faith of both parties. The plaintiff insists-that he did not induce the error of defendant and therefore, the defendant must suffer the consequences of his own negligence. under the rule that when one of two innocent parties must suffer, the -one whose act causes the loss must bear the penalty. We are not sure, that plaintiff did not induce the error, though, of course, unintentionally. Plaintiff’s agent maintained -its sign on a piece of property which he had sold, and failed to prove that there was a similar sign on plaintiff’s property which he held for sale, thus deceiving the committee of negroes and other persons acting for the defendant church, who were all the time visiting property on which the sign appeared. Be that as it may, however, it was not necessary that plaintiff be the cause of error. If he had designedly induced error, he would be guilty of fraud and if the innocent cause of error, such fact would not be controlling, for as was said in Newman vs. Scarborough (supra) “Error is error. No matter by whom or what induced, it vitiates the consent; and without consent, there can be no contract.”

The District Court dismissed plaintiff’s suit and awarded judgment in reconvention to defendant, ordering the return of the deposit of Four Hundred and Fifty ($450.00) Dollars. We see no error in the judgment, and it is, therefore, affirmed.


author: CLAIBORNE, J.

text:
    No. 9832.
    Orleans Appeal.
    WM. J. RICHARD, Appellant, v. PRODUCERS’ DISTRIBUTING CORP., ETC.
    (January 5, 1925, Opinion and Decree.)
    (January 19, 1925, Rehearing Refused.) '

      '(Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 115.'
    Under a general denial, any evidence is admissible to show that defendant is not indebted to plaintiff.

      2. Louisiana Digest — Master and Servan —Par. 7, 8, 12, 17.
    A mere' warning to an employee that his services will be dispensed with unless his work produces better results does not amount to a discharge.
    3. Louisiana Digest — Master and Servan —Par. 20.
    A traveling agent will not recover salary or expenses incidental to his visits to cities not named in his ■ itinerary.
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    Plaintiff claims salary. Judgment for defendant. Plaintiff appealed.
    Judgment reversed.
    WESTERFIELD, J., dissents.
    Ernest J. Robin, attorney for plaintiff and appellant.
    Woodville & Woodville, attorneys for defendant and appellee.
   CLAIBORNE, J.

Plaintiff claims salary. He avers that on June 3, 1924, defendant employed him as a traveling salesman at a salary of $40 per week, plus traveling expenses; that the defendant owes him salary for the two weeks, ending June 21 and 28, 1924, plus traveling expenses for the week ending June 21st____________________________$44.75 and for the week ending June 28th______ 51.88

•making in all $176.63.

That his services ended June 28, 1924, when he returned to New Orleans.

The defendant admitted the employment as alleged, but denied all the other allegations of the petition. They averred that the plaintiff “was given a fixed territory and designated cities in writing, which, and which only in said contract of employment he was to visit as solicitor for respondent”; that his services were unsatisfactory; that on June 17 defendant notified plaintiff that unless he produced better results they would dispense with his services; that this notice operated as a dismissal from and after the week ending June 21, 1924;'that defendant paid plaintiff all salary up to said June 21st, and all the expenses for the week ending June 14, 1924; that the expense account for the week ending June 21st, say $44.75, was not paid for the following reasons:

'1. That’ the plaintiff was not entitled to salary for Monday and Tuesday, June 16 and 17, say $13.32, on his visit to Monroe, which was not included in his' itinerary, nor for his expenses during those two days, say $14.00, amounting to $27.32.

2. That defendant advanced the plaintiff $42.49.

That these two items amount to $69.81, or $25.06 in excess of plaintiff’s expense account for the week* ending June 21, 1924, for which he is indebted to defendant.

Defendants further aver that they owe nothing to plaintiff for salary for the week ending June 28th for the reason that he was discharged at the end of the week dated June 21st.

There was judgment in favor of defendant dismissing plaintiff’s suit and he has appealed.

The defendant first filed an answer in the following words: “I hereby deny the claim”. He afterwards filed the extended supplemental answer mentioned herein-above. To this suppleniental answer plaintiff objected. We see nothing in the supplemental answer that could not have been shown by evidence under the general denial. Under that plea any evidence is admissible to show that defendant is not indebted to plaintiff. Chase vs. New Orleans Gas Light Co., 45 La. Ann. 302, 12 South. 308; Barr vs. Henderson, 105 La. 693, 30 South. 158; Bonnabel vs. Bouligny, 1 Rob. 292.

The plaintiff did not object to the intro-' duction of evidence nor did he plead surprise. Young vs. Texas & P. Ry. Co., 51 La. Ann. 295, 25 South. 69.

It is admitted that plaintiff is entitled to Eighty Dollars, or to the salary of two weeks ending June 28th unless he was discharged on June 21st.

The defendant says that he was discharged on June 21st by the following letter addressed to him, dated June 17th:

“You can readily understand that we cannot keep you going at the present rate, and unless you show a substantial increase in results produced by the end of this week, we shall .be obliged to dispense with your services.”

We do not consider the language of this letter as a discharge. It is only a warning a threat, that if plaintiff did not do better that defendant '(¡wild discharge him.

That defendant himself so understood the letter is made evident by the fact that on June 24th he wired the plaintiff as follows;

“Regret necessary confirm letter Juné seventeenth impossible carry you further in face of deplorable results shown.”

Plaintiff is therefore entitled to salary for .two weeks, or $80.00. As a corollary he is entitled to his legitimate expenses during those two weeks. He sets them up to $96.63. But on account of these he admits having received $40 by check dated June 21st, thus reducing this claim to $56.63.

The defendants urge that they are entitled to a further credit of $27.32, amount of two days’ salary and expenses during plaintiff's unauthorized visit to Monroe. We think the defendant entitled to that reduction. The names of the cities. the plaintiff was instructed to visit were given to him in writing. He had no right to visit others and charge the cost to the defendant. The defendant testifies that plaintiff told her that he went to Monroe for the week-end, because he did not want to spend that time in a country town. This is not contradicted. Plaintiff’s claim of $56.63 for expenses is thereby reduced to $29.31.

Defendant claims that he is entitled to a further reduction of $42.49 advanced to the plaintiff. Plaintiff resists this demand for the reason that the money was advanced by defendant’s manager personally and not for account of defendant. That was true in the origin. But the defendant subsequently ratified the advance made by its manager and reimbursed her the sum. The plaintiff therefore owed the money to the defendant. Deducting this amount of $42.49 from the salary account of $80.00 and the expense acount of $29.31 due to plaintiff leaves a balance due to him of $66.82.

It is therefore ordered that the judgment herein be reversed and avoided; and it is now ordered that there be judgment condemning the defendant, the Producer’s Distributing Corporation, to pay to the plaintiff, William J. Richard, the sum of Sixty-six 82-100 Dollars with five per cent, per annum interest from August 8, 1924, and all costs.


author: CARVER, J.

text:
    No. 2036
    Second Circuit Appeal
    RAPIDES GROCERY CO., INC. v. M. GOLDING; HOLCOMB & HOKE MFG. CO., Third Opponents
    (January 12, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 300, 303, 304.
    No vendor’s privilege will arise under an absolute sale on the object of the sale' being brought into Louisiana, therefore, there being no law to the contrary, a vendor’s privilege could not arise under a conditional sale.
    Appeal from the Parish of Rapides, Hon. R. C. Culpepper, Judge.
    Plaintiff seized and sold under execution a pop corn machine. The third opponent claims the proceeds alleging a vendor’s privilege by virtue of a contract between it and defendant. There was judgment dismissing the third opponent’s claim and third opponent appealed.
    Judgment affirmed.
    Hawthorne & Stafford, of Alexandria, attorneys for plaintiff, appellee.
    George Ginsberg, of Alexandria, attorney for third opponent, appellant.
   CARVER, J.

Plaintiff having seized and sold under- execution a popcorn machine as the property of its judgment debtor, Golding, the third opponent claims the proceeds, alleging a vendor’s privilege by virtue of a contract between it and Golding, trading under the name of the Guaranty Fruit Co.

The contract declared on is in terms a lease, with an option to buy, but both parties admit that under the Louisiana law it is a sale and we so regard it.

Plaintiff admits the execution of the contract but denies that the third opponent is entitled to a vendor’s privilege thereunder and the lower court so decided.

It was signed by Golding at Alexandria,Louisiana, but was never signed at all by. the third opponent or by any one for it. Therefore, it amounted at first only to an offer by Golding and became a contract only when accepted by third opponent, the acceptance being evidenced by its- shipment of the machine which occurred in Indiana. The record does not show whether the agent of third opponent, who took the offer from Golding, had authority .from third opponent to close a binding contract or not; but this is unimportant because he did not pretend to make such a contract but merely took the order or offer and forwarded it to the third opponent at Indianapolis, Indiana.

Counsel for third opponent admits in its brief that • the law of Indiana does not accord a privilege to the vendor of movable property and that a vendor’s privilege does not exist under Louisiana law when not given by the law of the place where the sale is made.

In the cases cited by third opponent’s counsel the court found that the sales were Louisiana contracts.

In McLane vs. His Creditors, 47 La. Ann. 134, 16 South 764, and Erman & Cahn vs. Lehman, 47 La. Ann. 1651, 18 South. 650, the contracts were made in Louisiana between the purchasers and agents of the vendors who had authority to make and did make binding contracts.

In De La Vergne & Co. vs. New Orleans and W. R. Co., 51 La. Ann. 1733, 26 South. 455, the contract, though made in New York, was to be executed and consummated in Louisiana and its completion was suspended by the condition that the object of it was to be accepted by the purchaser only after a test to be made in Louisiana.

In the Lehman case the court cited approvingly the following syllabus from Claflin vs. Mayer, 41 La. Ann. 1048, 7 South. 139:

“Where ' an agent in New Orleans for non-resident dealers has authority only to exhibit samples and receive orders which he communicates to -his principal for acceptance or rejection; held that an order so transmitted was similar in every respect to an order to purchase sent direct by the- buyer to the seller, and when so accepted and .filled and the goods delivered to the carrier and insured by the buyer, that it was a contract where said order was accepted and filled and the goods delivered.” .

Counsel argues that the contract in this case, being in Indiana a conditional sale, and becoming an absolute sale only when the machine arrived in Louisiana, a vendor’s privilege arose on such arrival.

No authority is cited to support this argument, and we do not think it sound. As no privilege would arise under an absolute sale on the object of the sale being brought into Louisiana, we do not think it could arise under a conditional sale.

The judgment of the lower court is affirmed.


text:
    No. 2052
    Second Circuit Appeal
    ISAAC POSNER v. MISSOURI PACIFIC R. R. COMPANY
    (January 12, 1925, Opinion and Decree.)

      (Syllabus by the JUditor.)

    1. Louisiana- Digest — Carriers of Passengers and Goods — Par. 132.
    In a suit by the consignor against the carrier to recover the loss caused by damage to the goods shipped where no exception has been filed in limine to the right of, such consignor to sue, and the consignee or person for whom the shipment was intended appears and testifies for the plaintiff on the merits the defense by the carrier that the consignor, not being the owner of the goods, has no cause of action, can not avail it, since the only object of the carrier in seeking to have the proper plaintiff is to avoid double payment for the damages claimed.
    2. Louisiana Digest — Appeal—Par.' 625.
    The finding of the trial court on matters of fact being clearly correct is affirmed.
    Appeal from the Parish of Rapides, Hon. A. V. Hundley, Judge.
    This is a suit brought by the consignor against the railway company for damages to a shipment of onions while in transit. The consignor or person for whom the shipment was intended intervened and asked that damages be awarded the plaintiff.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Mr. Hill, of Alexandria, attorney for plaintiff, appellee.
    Hawthorne & Stafford, of Alexandria, attorneys for defendant, appellant.
   CARVER, J.

Defendant appeals from a judgment against it, awarding plaintiff one hundred and twenty-two and 79-100 dollars damages to a carload of onions bought of one Schaffer and shipped from St. Mathew's, Kentucky, on a -route beginning with the Louisville and Nashville Railroad ,and ending with that of defendant.

Appellant’s counsel argues that inasmuch as the onions were shipped by Schafer to his own order they did not become the property of plaintiff until he had paid the draft to which the bill of lading was attached, which payment was made after the onions were damaged, and hence that the damages, if any, are not due to plaintiff but to Schafer.

This plea is met by the fact that Schafer intervened in the suit and asked that the damages be awarded to plaintiff.

As to defendant’s claim that Schafer had no interest; this could only be true in case the damages were due to plaintiff. But ; its counsel’s main argument is that Schafer was the one entitled to damages, if any. If this be true he had the right to sue for his own benefit or that of any other person, and his petition amounts substantially to suing for the benefit of plaintiff.

. Defendant does not claim to have a defense against Schafer not available in this suit. It only claims that it could more cbnvéniently defend a suit brought by him in Kentucky. But he had the right to sue here. Having done so and been dismissed on a ground that conceded plaintiff’s rights, defendant can hardly urge that it prefers to meet Schafer in a tribunal of its selection.

Schafer’s failure to appeal can not deprive plaintiff of his right to recover which, if doubtful originally, ceased to be so the instant Schafer intervened in his behalf and before judgment was rendered upon the intervention. Besides the judgment rendered in plaintiff’s favor was just what Schafer had asked for and he was not obliged to appeal from the judgment he had sought merely because the lower court rendered it upon plaintiff’s petition instead of his own.

2 La. Digest, verbo Carriers of Passengers, etc., Sec. 132, Werlein vs. Texas, etc., R. Co., 5 Orl. App. 216, as holding that:

“In a suit by the consignor against the carrier to recover the loss caused by damage to the goods shipped where no exception has been filed in limine to the right of such consignor to sue, and the consignee appears and testifies for the plaintiff on the merits the defense by the carrier that the consignor, not being the owner of the goods, has no cause of action, can not avail it, since the only object of the carrier in seeking to have the proper plaintiff is to avoid double payment for the damages claimed.”

We think the doctrine of this decision sound and if the mere fact that one of the parties to whom the damage' might be-due testified for the other could have' the effect of fixing that other’s right to recover, for the greater reason would a formal judicial admission and prayer do so.

, We do not overlook defendant’s argument that plaintiff was not the consignee but we can not" agree with it. Schafer did not consign to himself but to his order. The consignee, therefore, was not Schafer but the person to whom he might give the order; and from.the notation, “Notify Posner,” defendant was advised that Posner would probably be that person.

Our conclusion on this point makes it unnecessary to examine the question, so ably argued by defendant’s counsel, whether the damages, if any, were originally due to plaintiff or to the intervenor.

On 'the merits the proof shows that the onions were about three and a half days in transit and on arrival in Alexandria were to the extent of about twenty per cent soft and in a rotting condition. By memorandum on the way bill, made by defendant’s Alexandria agent, it appears that the upper end shutters of the refrigerator car containing the onions were closed at the time of inspection and the car was very hot. This agent adds that the damage whs “evidently due to the quality of onions and heat iü car.”

It was agreed that Schafer would swear that the onions were in first-class condition in every respect when • shipped.

We think this testimony sufficient to rebut the agent’s opinion as to the quality of the onions and hold that- the damages were due to negligence in permitting the Car to become heated.

Defendant complains that, although the damages to the onions were estimated at only 19 to 20 per cent, which, figured at cost price at point of shipment, $312.50, would amount to only $62.50, yet the court allowed $122.79, or say $60.79- more than 20 per cent.

The amount allowed was exactly the amount sued, for and testified to by the plaintiff.

The notation made by defendant’s agent on the way bill and the correspondence between defendant and plaintiff and the •Alexandria Chamber of Commerce, to which he turned over his claim for settlement, fully advised defendant that part of the claim was for reconditioning the onions.

We think his expenses in that regard a proper element of damages.

If defendant thought $60.00 too much on that score it could on cross-examination have required plaintiff to furnish a detailed statement. Failing to do this we do not think it incumbent on us either to give our own estimate of these expenses or to reject that part of the claim based thereon.

The judgment of the lower court is affirmed.


author: ROBERTS, J. ODOM, J. PORTER, J.

text:
    No. 1630
    Second Circuit Appeal
    MRS. ELIZA MAXWELL v. T. R. MAXWELL
    (Jan. 12, 1925, Opinion and Decree.)
    (Feb. 2, 1925, Rehearing Denied.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Marriage—Par. 43.
    In view of Article 2247 of Civil Code, a private agreement of separation of property between married persons is null.
    2. Louisiana Digest — Marriage—Par. 63.
    A private agreement of separation of property between spouses, although null, is susceptible of ratification making it binding on the party ratifying it.
    3. Louisiana Digest — Obligations—Par. 127, 128.
    There is a rule of law, to which we know of no exception, to the effect that a party cannot successfully attack a commutative contract while holding on to the benefits which he has received from it.
    4. Louisiana Digest — Estoppel—Par. 41, 45.
    Where a private settlement of community property which is null under the law had been made between the husband and wife and the widow, after the death of the husband, expressly acquiesces in the sale of property which should have been community property, by signing the act of sale, the widow has ratified the sale and is estopped from claiming the property sold.
    5. Louisiana Digest — Estoppel—Par. 12, 41, 45.
    Where a private settlement of community property, which is null under the law, had been made between the husband and wife, and the widow, after the death of the husband, expressly .acquiesces in the sale of property which should have been community property, by signing the act of sale, the widow has ratified the sale and is estopped from claiming error of law or fact.
    Appeal from the • Thirteenth District Court, Parish of Grant. Hon. Jno. A. Williams, Judge.
    This is a suit to have an apt of sale declared a nullity.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wiley Jones, of Colfax, attorney for plaintiff, appellant.
    Huey P. Long, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF CASE.

ROBERTS, J.

The plaintiff, Mrs. Eliza Maxwell, was married to W. H. Maxwell something like fifty years ago, and after rearing a family of children, issue of the marriage, became estranged in their feelings toward each other, and as a result of such estrangement, voluntarily separated, and effected, or attempted to effect, an extra-judicial division of the community property accumulated during the marriage, by means of a notarial act made in the form of a “Dation En Paiement,” wherein a certain forty-acre tract of land therein described is appraised by two appraisers, at $150.00, and wherein W. H. Maxwell declares that he is indebted to his wife in the above named sum, and that the forty acres of land is given in payment of the debt then acknowledged to be due his wife.

The act of Dation En Paiement contains a further stipulation that the wife “hereby renounces her right to all her community rights”.

After having lived apart from plaintiff, his wife, since 1906, W. H. Maxwell died on June 10th, 1921.

In the meantime, he had sold that portion of the community not transferred to his wife, and had invested the proceeds in eighty acres of land situated in' Grant Parish, and described as the E% of NE% of Section 9, Township 9 N. Range 1 East.

Soon after W. H. Maxwell’s death, his five children all majors, and the surviving widow, plaintiff herein, executed a deed before S. M. Abel, Notary Public,- to the defendant, T. R. Maxwell, for a consideration of $1,500.00, covering the eighty acres of land in dispute.

When the deed was signed by the plaintiff and her five children, the Notary, to whom defendant had handed his check book, with the request that he draw checks in favor of the several vendors, asked plaintiff what part she was to get, and she told him that she had' no part, that she was always left out.

Thereupon, the Notary drew five checks for $200.00 each, which, together with five notes for $100.00 each, were delivered to the five children in payment of the agreed purchase price of $1,500.00.

It- appears that the price paid by defendant for the property exceeded, by $500.00, the next highest offer that had been made for the property.

About the same time the sale of the land in controversy was executed, the five heirs of W. H. Maxwell made a partition of eleven head of cattle left by their father, and according to the undisputed testimony, the plaintiff herein made no claims, and received no share in the division of the cattle.

The sale of the property in controversy was executed on June 25th, 1921, and on November 4th, following,' plaintiff filed this suit to set aside the sale, insofar as same affected her interest in the property, alleging that she was induced to sign the deed through the artifice of defendant; that the sale was made without price or consideration; that if it be construed to fix a consideration, then said deed recites an error, the true facts being that there was no price and no consideration ever agreed upon between petitioner and ‘ said T. R. Maxwell.

“That the only cause which induced petitioner to subscribe her name to said pretended deed and act of sale, was that petitioner was led into error of law, and induced to draw an erroneous conclusion of law relating to an undivided one-half interest in and to said land being invested in petitioner at the death of her. said husband, and that her erroneous conclusion of law was caused, created and continued by artifice on the part of said T. R. Maxwell, and with design on his part to obtain an unjust advantage for himself, and. to, cause a loss to petitioner.”
“That said T. R. Maxwell falsely asserted to petitioner: that she had not title or interest at all in and to said land by operátion of law or otherwise; and furthermore, the said T. R. Maxwell suppressed from petitioner what was and is true as to petitioner having title to an undivided one-half interest in and to' said land.”
“That these fálse assertions, and tbé suppression from petitioner of what was and is true on the part of said T. R. Maxwell, deceived petitioner,' and was the sole and only cause of her being led into said error.”

The defendant’s answer admits plaintiff signing the deed, but denies that she signed through any error, either of fact or of law. Defendant further denies the practice of artifice of deception in procuring plaintiff’s signature to the deed, and denies ever having had any conversation with her about the matter.

It is further averred by defendant that he purchased all rights of plaintiff and the heirs of her deceased husband, W¡ H-. Maxwell, in and to said property, having paid therefore the sum of $1,500.00, which was more than the property was worth; that he authorized S. M. Abel, the Notary Public who drew and prepared the said deed for signature, to draw checks for the signature of defendant, paying out the said $1,500.00 consideration then and . there agreed upon among the said vendors, and that the said plaintiff participated in said-proceedings and authorized and instructed the said S. M. Abel how to draw said checks, and that defendant, in this manner paid out the sum of $1,500.00 for a deed to said property; that said plaintiff having signed said deed, and authorized and instructed the manner of the distribution of the said consideration, is fully estopped from denying receipt of any amounts that may have been due her, and defendant now expressly pleads said estoppel.”

Defendant further averred that the real reason why -plaintiff did not claim any part of the proceeds of the sale, was that on March 26th, 1906, she and her husband had a division of property, and that as shown by said so called “Dation En Paiement” of said date, the deceased husband of plaintiff made her a deed to forty acres of land which she still owns and retains, and that she relinquished all her rights to all the remaining community property.

On the issues as above set forth, the case went' to trial, resulting in a judgment rejecting the plaintiff’s demands, from which she has appealed to this court.

OPINION.

Taken as a whole, the testimony shows that the plaintiff and her deceased husband had not lived together as man and wife during a period beginning in 1906, when they divided the community property, and ending with- the husband’s death in 1921; that neither their separation, nor the division of -the community, affected between them, had ever been effectuated by judicial decree of any Court; that plaintiff still retains the forty acres of land conveyed to her in 1906; and as between plaintiff and her five children, has acquiesced in and ratified the division of community made in 1906.

We quote below from the brief of defendant’s counsel, a number of extracts from the testimony of plaintiff’s witnesses:

Mrs. Eliza Maxwell testified in part: “Referring' to the sale and defendant, she said, ‘He never spoke to me about it”. When asked about her son, Ivy, working up the trade, she said, “he came over there * .* * and went to see Rich Maxwell about the place and sold the place- to him. The children all went off and didn’t ever talk to me about it, but when they got ready for selling, they wanted me to go to the Lumber Company office at Rochelle, and wanted me to go there and sign the deed, and I would not go, and they brought Morgan Abel to the house’ (tr. 27). Asked if she knew then that she owned an interest in the property she replied: ‘Yes, sir, I think I ought to, I didn’t know for certain that I did, but knew that I ought to have’, (tr. 27) She admitted that in 1906, she and her husband had a division of property in which she was given the forty, acres of land she now owns. (tr. 28 and 31) Also stated that T expect it will stay there until the children do just like they did this other”, (tr. 32). She stated out of the division to buy the land in controversy, (tr. 36) She said that she had made no demands upon any of her children for any part of the purchase price, and that she doés not want any of it from them. (tr. 61 and 62.)”

S. M. Abel, the Notary Public, a man of at least twenty years’ experience in important positions, such as Deputy Clerk of Court, testified in part:

“I obtained my confirmation as to the transaction and that sale from Ivy Maxwell, and with the additional information I had sought from T. R. Maxwell with reference to the consideration.” That deed was executed “in Mrs. Eliza Maxwell’s house * * * All parties that I considered interested were present. * * * I wrote out the notes and the checks for the purchase price * * * and prepared the deed, and carried it over to Mrs. Maxwell’s. * * * I had two witnesses to cover over * * * I read the deed * * * I heard no objection from any one, and I asked Mrs. Maxwell to sign first and she. came and signed by making her mark. * * * The other five heirs came around and signed the deed as their names had been given to me,' and when I went to write the checks and make payment, I asked Mrs¡ Maxwell where her interest came in, or words to that effect; she related to me that she didn’t consider .she had any interest in the property. * * * I wrote checks for $200.00 each to the heirs, and they agreed to accept Mr. Maxwell’s notes for $100.00 each, lieu of cash; the deed was signed, the checks for $200.00 each and the notes for $100.00 each was delivered to the heirs * * * the witnesses to the deed signed, the deed, and I considered the business closed.” (tr. 40) As to the purchase price. “He paid more for the place than I would have paid for it.” (tr. 41.)

Miss Eliza Maxwell, the single daughter living with plaintiff, testified in part:

When asked on cross examination about Ivy Maxwell working up trade and staying with them at night while at it, said, “He came and stayed, and we agreed to take $1,500.00. (tr. 75) * * * He stayed some, I don’t know how many nights”, (tr. 76) That they divided up the cattle without giving their mother any, or her contending for any. (tr. 77.)

J. L. Maxwell, son of plaintiff, testified in part:

.“We wrote him (Ivy) a letter and told him that whenever he came, we would try to dispose of the property. * * * My sister Ella did. Me and my youngest sister talked it over.” (tr. 84) That his mother knew that Ivy had been written to come sell the property, (tr. 85.)

There are other witnesses along same line, but we deem it of no value to mention what they had to say.

Plaintiff tried strenuously to make it appear that she and her deceased husband had lived together since they separated in the year 1906, but she utterly failed.

J. L. Maxwell testified that his mother had nothing to do with his father thereafter until he went to die, when she came about him a little, (tr. 84.)

Miss Ella Maxwell, who tried hard to make it appear they were living together, was forced to admit that they had never slept together, (tr. 74.)

Mrs. Fannie Long, her daughter, who lived near her, and at whose home her father died, testified in part:

“No sir, he (her father) has been at her house, but as for living together as man and Kvife, they have not.” (tr. 64.)

W. J. Long, who has lived near the plaintiff for over thirty years, said that if they had lived together since 1906, he had not heard of it, nor seen anything indicating such. (tr. 59.)

Tom Hodge, who lived within 200 yards of her for the last 27 years, testified that if she and her husband had lived or stayed together since 1906, he had seen nor heard nothing of it; that he had heard her say in the Court house at Winnfield about seven years ago that she never expected to live with him. (tr. 55.)

N. Parker, who lived near her for nine years before her husband’s death, testified that he had seen nothing indicating in any manner that plaintiff and her husband were living together.

We find nothing anywhere in the testimony to indicate that the defendant practiced any artifice or deception on the plaintiff in order to procure her signature to the deed. Neither is it shown that he endeavored to obtain any “unjust advantage” over her, nor that he caused or tried to cause‘the plaintiff any “inconvenience” or any “loss”. It is not shown that defendant prevented plaintiff from receiving her portion of the purchase price paid by him. It could make no difference with him whether the plaintiff received the money or whether the children received it. The plaintiff herself directed .the Notary' to make the checks payable to her children, although she states that she “thought” she owned interest in the property.

Had the plaintiff,.following her husband’s death, chosen to stand upon her legal rights, either by refusing to sign the deed, or by claiming half the purchase price, this lawsuit could not have arisen. The truth appears to be that neither at the time of the sale now attacked, nor even now, does the plaintiff wish to assert her community rights as against her children, but only in such manner as will bring a gain to her and inflict a loss on defendant— without disturbing the arrangement with the children, which had been acquiesced in, if not made a matter of express agreement between her and her children, following the death of her husband, W. H. Maxwell.

Article 1786 of the Civil Code, reads in part as follows:

“The unauthorized contracts made by married women, like the acts of minors, may be made valid after the marriage is dissolved, either by express or implied ratification.”

Plaintiff’s ratification of and acquiescence in the unauthorized and illegal contract entered into with her husband in 1906 — subsequent to the dissolution of the community by the death of her said husband and no doubt caused the defendant to pay over the whole purchase price of the property to plaintiff’s five children. While the contract was, no doubt, invalid at the time it was executed, and remained so up to the time of the dissolution of the community by W. H. Maxwell’s death, we are of the opinion- that said contract has been rendered valid — at least insofar as the defendant is concerned, by plaintiff’s ratification of it, and that she is now estopped from, urging her present demand.

“A married woman, living in community with her husband, may be held liable on contracts, made by her, which enure to her separate benefit, when to hold otherwise would be to enable her to perpetrate a fraud.” Ackerman vs. Larner, 116 La. 101, 40 South. 581. See also Kohlman vs. Cochrane, 123 La. 219, 48 South. 914.

“Where a woman, after the termination of her marriage, pays interest on her unauthorized debt, she thereby ratifies it.” O’Keefe vs. Handy, 31 La. Ann. 832.

“So she may ratify a debt contracted for her deceased husband’s benefit by acknowledging it in writing, and promising to pay it.” Lafitte vs. Delaney, 33 La. Ann. 659.

It is not deemed necessary to discuss the allegations of error further than to say there is no proof whatever to show that defendant procured plaintiff’s signature to the deed sought to be set aside, either by means of suggestions that were false, or by the suppression of what was true in relation to the contract.

For the reasons given, the judgment of the District Court is hereby affirmed.

ON A REHEARING

ODOM, J.

This case is before us on aplication for rehearing.

It was decided in the District Court on Jan. 4, 1922, and appealed to this Court where the judgment of the lower court was affirmed, Judge Roberts, being the organ of the court.

An application for rehearing was filed on Feb. 2nd, 1923.

We find in the record an opinion cm the application for rehearing, written by the late Judge Porter, then a member of this court. Just why the opinion wa¡3 not handed down we are not informed.

As that opinion is in accord with our views, we adopt it and make it our own.

PORTER, J.

In March, 1906, Henry Maxwell and his wife, the present plaintiff, who had lived together as husband and wife tor many years, entered into a notarial agreement, which had the effect of disolving the community of acquests and gains between them, and a division of the community property, This property consisted of two tracts of land, one of 40 acres and the other of 80 acres. The former was the home place "with the buildings and improvements thereon. The other tract was unimproved. Mrs. 'Maxwell was given the home place, while the 80 acres went to the husband.

Mrs. Maxwell has resided upon that part which fell to her ever since.

The husband and wife never lived together afterwards. There is no pretension that the division was unfair, or that Mrs. Maxwell did not receive all that would have been due her if a judicial separation of property had been regularly rendered and executed.

The husband sold the land which he received and, it appears, reinvested the price in the 80 acres in controversy.

The husband died on June 10, 1921.

Some 15 days after his death, the five children, all of age, sold the 80 acres to the defendant for $1,500.00, all of which was paid at the time or has been paid since. Mrs. Maxwell, the plaintiff, joined in that deed.

Of course the agreement of separation in 1906 was' a mere nullity. C. C. 2247. But it does not fall within the classes of nullities which are not susceptible of ratification, when the disability from which the nullity flows, ceases.

The question was fully discussed in Brownson vs. Weeks, et al., 47 La. Ann. 1042, 17 South. 489. It is a leading case and has been expressly affirmed in a number of cases since. Among them see Munholland vs. Fakes, 111 La. 932, 35 South. 983; Weathersby vs. Springfield Lumber Co. Ltd. et al., 141 La. 578, 75 South. 416; Cox vs. Lea’s Heirs, 110 La. 1036, 35 South. 275.

The question in the Brownson case was whether a note given by a married woman to secure the payment of a debt of her husband could be ratified after the dissolution of the marriage.

The court held, in substance, that the incapacity of the wife to contract the debt was due to her personal status, and hence that when the community was dissolved by the death of her husband, she could ratify it. A distinction was drawn between two kinds of absolute nullities, viz: “Those resulting from stipulations derogatory from the force of laws made for the preservation of public order of good morals, and those established in the interest of individuals”. It is clear, we think, that the nullity of the agreement of separation in this case falls within. the latter class. It will hardly be denied that this plaintiff, who possessed all of the rights and powers of an American Citizen, could, if she had seen fit to do so, have entered into a formal agreement with her children ratifying the contract.

The testimony shows that the negotations for the sale of the land to defendant extended over several days; that a number of conferences were held between the defendant and the heirs of plaintiff’s husband, and the plaintiff was present at one of them at least, and she made no protest, and claimed no part of the land. Neither did she make any objection at the time the deed was executed and when she signed it. It cannot be doubted that defendant would have refused to buy it if she had done so. It was her conduct and her express acquiescence, evidenced by her signature, which caused him to put out his money. Her conduct in that respect amounted to ratification, and she is, in all good conscience, estopped from attacking the sale now.

But she is estopped for a stronger reason. The contract of separation was an invisible one. She cannot repudiate a part of it and affirm a part of it. Her suit and her attitude before the court amounts to this. She is seeking to hold on to the perfect ownership of all of the forty acres which she got under the contract, when she was entitled to hut an undivided half interest in it, and at the same time to get hack either a half interest in the 80 acres, or else recover half of the price which defendant paid for it. She virtually affirms that part of the contract which benefits her and repudiates that part which does not.

By affirming a part of the contract, she affirms' the whole of it, and theréfore ratifies it as a whole.

Besides there is a rule of law, to which we know of no exception, to the effect that a party cannot successfully attack commutative contract while holding on to the benefits which he has received from it. See Lathan vs. Heckey, 21 La. Ann. 425, and numerous cases cited in La. Digest, Vol. 5, pages 638 and 639.

The rehearing ought to he denied.

For the reasons assigned, the application for rehearing is denied.


text:
    No. 1921
    Second Circuit Appeal
    McCASKEY REGISTER COMPANY v. W. E. WARD
    (Jan. 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 114.
    An allegation by defendant that a device, machine and safe is totally defective and insufficient is a sufficient allegation under which to prove that as a defense.
    2. Louisiana Digest — Pleading—Par. 114; Bills and Notes-^-Par. 225.
    An allegation that there is a failure in the consideration of a contract in which notes were given is sufficient to allow legal evidence to show failure of consideration of these notes sued on.
    3.Louisiana Digest — Judgment—Par. 51.
    Where the evidence shows that device, machine and safe sold was defective, a judgment of non-suit reserves the right to plaintiff to replace the defective machine and then again enter suit for the purchase price.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of LaSalle. H,on. F. E. Jones-, Judge.
    REYNOLDS, J.
    Action by McCaskey Register Company on promissory note.
    Defendant pleads failure of consideration.
    There was judgment rejecting plaintiff’s demand as of non-suit.
    Plaintiff has appealed.
    Judgment affirmed.
    Thornhill & Thornhill, Columbia, La., attorneys for plaintiff, appellant.
    Perrin & Perrin of Jena, La., attorneys for defendant, appellee.
   The plaintiff in the case earnestly insists that defendant, by his answer, has cut himself off from every defense other than that plaintiff had sold him a fireproof safe.

In this contention we cannot concur for we find in defendant’s answer the following allegations.

(Par. 1) That the note sued .on was given for device, machine and safe. That it is not as represented, hut on the contrary is totally defective and insufficient and does not fill the conditions of the warranty given your petitioner by the defendant at the time that it was sold.

(Par. 2) Defendant alleges that he owes the plaintiff nothing because of the failure of the consideration in the contract of sale upon which the said note is based.

These allegations in defendant’s answer, open the door, we think, for the admission of any legal evidence tending to show failure of consideration of the notes sued on.

The District Judge who tried this case has filed in the record a well considered written opinion in which he holds that plaintiff cannot recover on a note given for a machine or safe that was totally unfit for the purpose for which it was sold at the time it was delivered, and has so remained up to the time of trial of the case.

The evidence of the defendant (T. Page 1) is to the effect there was a serious defect in the machine at the time to was delivered. That plaintiff at defendant’s request sent a mechanic to repair sáme in accordance with the terms of the contract under which the machine or safe was sold. That said mechanic did not remedy said defect but actually made it worse.

The plaintiff introduced in evidence the printed contract, that shows the consideration for which the note sued on was given. This contract gives the defendant a guarantee that “All defects in manufacture will be made good for one year from date of invoice”. This truly, in view of the many iron clad obligations and waivers placed upon the defendant under the terms of said contract is a slender guarantee, but it is sufficient to shield defendant in this case, for the evidence shows conclusively that the machine sold to defendant came to him in a defective condition, rendering it wholly unfit for the use for which it was bought.

Prom defendant’s ' evidence (T. page 10) we quote:

Q. What, if any, defects had the machine at the time you received it?
A. Well there was a little nut that comes over the hook like this, so the bolts came out and the hook was not in there.
Q. The bolt was not in the machine?
A. No sir, there was none in there. It was not put in there, it could not have gotten out, and if it had it would have been there when we opened it.

This evidence is not disputed and under this evidence it is clear that there was a “defect in the manufacture” from which defendant is fully protected under the very letter of plaintiff’s founded contract.

The evidence fully shows that this defect still exists.

' The District Court dismissed the plaintiff’s' suit as of non-suit, stating in his opinion that when plaintiff replaced the defective machine with complete one, or made good the defect in the old one, he in a position to collect the note sued on, would be in, but not otherwise.

The decision of non-suit in effect, reserves to the plaintiff all his right, and the defendant has not moved for an amendment; and this court is without authority to change the judgment as- to defendant; it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at plaintiff’s cost.


author: ODOM, J.

text:
    No. 1979
    Second Circuit Appeal
    MARIE DERIVAS v. LEONTINE GASPARD, WIFE OF A. DOUZAT
    (January 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Libel and Slander— Par. 1, 4, 6.
    The elements essential to support an. action of slander are that the charges made are false, and made maliciously, and that the party against whom they are made shall have suffered injury:.
    2. Louisiana Digest — Libel and Slander— Par. 36.
    Where the alleged slanderous assertions are proven true there can be n.o recovery of damages, there being' no slander.

      Appeal from the Fourteenth Judicial District Court, Parish of Avoyelles. Hon. S. Allen Bordelon, Judge.
    This is a suit for -damages for slander. There was reconventional demand.
    Judgment rejecting demands of plaintiff and reconventional demand.
    Plaintiff appealed.
    Judgment affirmed.
    . Mr. Riddle, of Marksville, attorney for plaintiff, appellant.
    Samuel Moreau, of Marksville, attorney for defendant, appellee.
   ODOM, J.

This is a süit to recover the sum of $1150.00 damages for alleged slander and defamation of plaintiff by defendant.

“Plaintiff alleges that defendant charged, asserted, declared and ' circulated reports among the neighbors to the effect, when your petitioner was living in Hickory Hill in Avoyelles parish, about fourteen years ago, did associate with the Ethiopian race, or negro men, and more particularly one Victor Jacobs, and intimidated that petitioner was having illicit relation with them, and more especially one Victor Jacobs that your petitioner was as low as a dog and a sow and also she has made known and repeated all the above allegations on several occasions from time to time, all of which tendered to injure petitioner’s character”. And she alleges that all such assertions are untrue, malicious and were circulated to injure her, and that said slanderous reports has caused her great embarrassment and injured her feelings and pride of family and she considers and avers that she has been damaged:

Five hundred dollars ($500.00) fop humiliation, embarrassment, injury to her feelings and to her family; and five hundred ($500.00) dollars punitive damages for slander upon her name, character and reputation and one hundred ($100.00) for attorney’s fees.

Defendant, in her answer, - denied partically all the allegations of plaintiff’s petition; and further answering, alleged that the plaintiff is living in open concubinage with respondent’s father and that of such illicit union several children have been born; that long before plaintiff began to live in open adultery with defendant’s father, plaintiff had the reputation of’ being a common prostitute, and that her living in open concubinage with defendant’s father is and has been for. a long time a menace to society in that community, -and she especially alleges that she at no time made statements which were untrue or false, but. she admits that on one occasion her father, accompanied by a witness came to her and asked her “Is it - true you accuse Marie Derivas of coming at night with a negro man to your house and store to purchase syrup” and that her answer to that question was “yes” and that she was asked by her father if she meant to accuse Marie Derivas of “Committing a wrong” with the negro man, Victor Jacobs, and that her answer was "That she could not answer the question because they left her place in the dark of night and she did not attempt to keep track of them”.

The case was tried in the lower court and resulted in a judgment in favor of defendant, rejecting plaintiff’s demands at her costs.

OPINION.

The facts, as disclosed by the record, are that Marie Derivas, now about 37 years old, was born in the town of Marksville of an illicit union between A. D. Derivas and Azeline Dupius.

She was adopted and reared by a respectable family, and when about 16 or 17 years old, she left the home provided for' her by her foster parents and soon thereafter gave birth to a child, the result of an illicit union between herself ' and one Dallas Dupius. That child is now nineteen years old. Some time after the hirth of the first child, just how long is not disclosed, she began to live in open adultery with Emile Gaspard, the father of Mrs, Leontine Gaspard Douzat, the defendant. . Of this illicit union three children have been born, the younge'st being now fourteen years old.

At the time Emile Gaspard began to live in open adultery with plaintiff, he was married and he and his wife had reared several children, one of whom is defendant.

Emile Gaspard and plaintiff have lived in open adultery in the vicinity where Gaspard’s lawful wife and all his legitimate children reside for a great many years, and it seems that it was a source of great annoyance and humilitation to his wife and his legitimate children. Defendant is a woman of good character, is married, and she and her husband are rearing a family of children.

They also reside in .the vicinity where defendant’s father and plaintiff are living together in open concubinage.

We have no doubt that defendant was very much humiliated by shame and disgrace which her father had brought upon her and all the members of the family, and that she resented the ’ treatment her father had accorded her mother by leaving her practically without means, and throwing upon her the burden of supporting a large family of children, and bestowing his affections and the fruits of his labor upon Marie Derivas and the offspring of his adulterous union with her. The record shows that she remonstrated with her father almost every time she met him and tried to prevail upon him to leave the plaintiff and to cease a course of conduct which was a constant source of humiliation and shame to defendant, her children, her mother and her brothers and sisters, and tried to get him to return to his lawful wife.

The following testimony by defendant’s father Emile Gaspard, shows the attitude of defendant.

“Q. Did not your other children offer to support you and all contribute to your support if you wanted to live with them or return to your legal wife?
“A. No, she (meaning defendant) is the only one. She did not like to see me in that position, and she could not take me as she was poor and she had others to provide for,” and he was asked (page 17) “Is she the only daughter that talked of the woman you lived with?”
“A. They all talked about her, but the others did not talk bad about her, and put her, as Mrs. .Abelus Douzat did, with negroes.”

The feeling of all the legitimate children, especially the daughters, of Emile Gaspard, may well be imagined, and that they talked on (about) their father’s concubine, under the circumstances, it is not unnatural or suprising. It seems that defendant was more intense in her feelings and desire to see her father cast off his adulterous relations with plaintiff, and we have no doubt that she was active in. her effort to that end and made remarks about plaintiff’s character. But whether she ever called her a “bitch” or a “sow” is doubtful. Defendant says she did not. The witnesses are not agreed as to that. Defendant did, however, say on numerous occasions that she had seen plaintiff in company with a negro. She says she saw her in the field talking to a negro in the turn row, and we have no doubt that it is true. It is evident that plaintiff had on different' occasions done manual labor in the fields of others and that there were probably negroes working in the same field at the, same time. Defendant said also that plaintiff come to her store one night about . 10 or 11 o’clock in company with one Victor Jacob, a negro man to buy syrup. She says that is true and the testimony on that point is corroborated by that of her husband and of Napoleon Gaspard, a kinsman. We think it is true that plaintiff did go to the store with this colored man, at night, to get syrup. That is all defendant ever said she did. She did not say that plaintiff was guilty of any immoral conduct with this negro, but she did say she thought such conduct was wrong and she commented upon it. She says her father was at that time living with plaintiff. She was asked:

“Q. It made you angry to think about this?
“A. Yes, sir, it did.
“Q. But it made you angry seeing the woman your father was living with in company with the negro?
“A. Yes sir, after seeing and knowing what I knew and my father living with her.
“Q. The opinion which you had and still have by seeing this woman with this negro caused this anger, did it not?
“A. Not only that but seeing she took my father away from my mother, and I remembered these things, that it was unfortunate.”

Further comment upon the facts of this case and the law applicable is necessary.

We will say, however, that in our opinion, all that the defendant ever did or said was done and said with the view and in the hope of breaking up the unholy and shameful alliance between Emile Gaspard, her father, and Marie Derivas, and that she was not actuated by a desire to injure the feelings of plaintiff.

The elements essential to support an action of slander are that the charges made are false, and made maliciously and that the party against whom they are made shall have suffered injury.

No citation of authority is necessary on this point. We do not find that defendant made any false statement about the plaintiff. She did say that plaintiff went to the store in the night time in company with a negro man. We think that it is true. She did not, however, state that plaintiff was guilty of cohabiting with this negro; although it may be said that she meant to convey that idea when she mentioned the fact of her keeping company with this negro man, but she did not say so. To say of a white woman that she keeps company with’ a negro man is not actionable slander if it is true, and we think it is true that plaintiff did on the occasion referred to go to the store of defendant, at night with the negro man, Victor Jacob; and we think it is also true that plaintiff was also seen in the field on the turn row with this same negro man. It may be that no wrong was intended by plaintiff on either occasion, for it may well be imagined that a woman who had lead- the life she had lead and was then leading, would be rather loose and careless in her conduct. It may be that viewed from her standpoint, such conduct meant nothing. But what of the impression such conduct would naturally '- create in the minds of other people? We think comment was altogether natural, and especially by one who was so vitally interested as defendant was.

Plaintiff alleges that she has Peen damaged on account of the slander upon her name, character and reputation, and that her feelings have been wounded. Without comment, in detail, we state it as our opinion that nothing that the record shows that was said about her by Leontine Gaspard should have wounded the feelings, or could have injured the standing, character or reputation of a woman who so far forgot herself as go through the country at night accompanied only by a negro man, and who conf esses in open court that she is now living and has been for many years living in open concubinage, and that she is the mother of four adulterous bastards.

This ease affords no grounds for relief. We think the lower court made no error in rejecting plaintiff’s demands and the demands of defendant in reconvention.

The judgment appealed from is therefore affirmed.

Plaintiff-appellant to pay all costs.