author: McGREGOR, j..

text:
    No. 3320
    Second Circuit
    VICTORY GRAVEL CO., INC., v. DYER
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Melvin F. Johnson,' of Shreveport, attorney for defendant, appellee. 1
   McGREGOR, j..

This is a suit brought by the plaintiff, Victory Gravel Company, Incorporated, against the defendant, F. L. Dyer, for the sum of $774 alleged to be due for building material consisting of washed gravel sold and delivered to the defendant, hnd by him actually used in the construction of certain houses which he was building in the city of Shreveport, between the dates' of September 18, 1923, and February 29, 1924. It is alleged that in the matter of the purchase of the said material by the said F. L. Dyer he was represented by his agent, one J. L. White, operating under the name of J. L. White, trustee. The contention of the plaintiff in this suit is that Jf L. White was building houses for Dyer, and that in all transactions relative to the said building operations during that particular period he styled himself J. L. White, trustee, and that all business, of every kind transacted in the name of J. L. White, trustee, was for the use and benefit of Dyer, and that all debts so contracted were Dyer’s debts and not White’s. In the alternative, the plaintiff alleged as follows:

“But if the court should find that the business conducted in the name of J. L. White, Trustee, was not owned and operated individually by defendant, then and in that event, in the alternative, petitioner shows that said business was a partnership composed of this defendant and J. L. White, and that the business of said partnership was to construct homes on lots owned by defendant and to sell the same, dividing the net profits equally between them.”

It was further alleged that, if the court should find that this business conducted as was alleged was a partnership, then the said J. L. White was in active charge of the construction of the homes for the partnership, purchasing for its account the material sued for. In his answer the defendant simply denied every allegation of the plaintiff’s petition, and asked that the demand be rejected. On these' issues, the case was tried,* and there was judgment in favor of the defendant, rejecting the plaintiff’s demand. Prom .that judgment the plaintiff is prosecuting this appeal.

J. L. White testified in effect that he and P. D. Dyer, during the winter of 1922 and 1923, entered into an agreement whereby they were to build a number of houses, that he (White) was to superintend the building operations and furnish one-fourth of the money required, and that Dyer was. to furnish three-fourths of the money, and, in addition thereto, all of the lots bn which ■the homes were to be built. He testifies that under this agreement, the houses were to be sold, and that out of the profits realized, if any, Dyer was to receive the first $750 of profit, that he, White, was to receive the next $750 of profit, if realized, and that, if there should be any profit in excess of $1,500, it was to be divided equally. Up to this point this part of White’s testimony is corroborated partly by Dyer, who says that there was such a building agreement, but that he was to receive a profit of $1,000 per house, and .that this agreement applied to only four houses. He agrees also with White’s statement that each one was to furnish a portion of the money required to carry on the business. They each then agreed that for some reason or other there was a change in their agreement during the fall of 1923. White says that he was no longer able to furnish any portion of the money for the building operations, and that it became necessary for Dyer to advance it all. He testifies further that, since Dyer was to furnish the money, he was to receive the first $1,000 of the profit made on each house instead of $750, as formerly. Dyer flatly denies this statement, and says that under the new agree■ment a fixed contract price was agreed upon for each house in advance, and that these prices ranged from $4,0u0 to $6,000 per house. He says no written contracts were executed to cover any of the houses, and he is unable to tell the price of any particular house. No bond was required in any case. It is admitted by both Dyer and White that, in the beginning of their operations, whatever money was furnished by Dyer was paid to White and disbursed by him.

White further testifies, that, after the new arrangement was made, Dyer never advanced him any money at all for operations, but that, he (White) bought and contracted for all materials in the name of J. L. White, trustee, with the understanding that he was acting for Dyer, who was. to pay all bills. Under the first arrangement, it seems that all materials used by him were charged to him personally, and he paid the bills out of funds furnished by both and deposited to his personal account. He testifies that at the beginning of the new arrangement he went in person to all the materialmen, including the plaintiff, Victory Gravel Company, Incorporated, and closed his personal accounts and opened up new ones in the name of J. L. White, trustee, for the benefit of Dyer. The account sued on is styled thus, and it is in evidence that the plaintiff sold the material with the understanding that it was being furnished to Dyer.

Mr. Dyer denies all this, and to corroborate his testimony offered in evidence checks amounting to $57,500 paid to White individually after the date of the so-called new agreement, but White testifies that all this money was paid to him to settle the outstanding bills that had been incurred under the first arrangement, and in this statement we think he is correct. He states positively that, after the new arrangement, Dyer furnished all the money, and, in order to satisfy himself that it went into the buildings, he paid all bills direct, furnished all pay roll money, and disbursed it weekly through his. own office by his own bookkeeper and employees. He says all bills for materials were mailed to him (J. L. White), and that he immediately approved them and passed them on to Dyer’s office and never heard of them afterwards. In this statement he is corroborated by the record. There is no doubt about White’s, operating from some time in the fall of 1923 up to February 22, 1924, under the name of J. L. White, trustee. This is substantiated by the record. It is also in evidence that there was never a bank account in the name of J. L. White, trustee, until after February 22, 1924, when, pursuant to an agreement of that date, such an account was opened by funds deposited by Dyer alone. If White had been paying the hills up to that time and during the period that he was operating and buying materials in the name of J. L. White, trustee, there would have been a bank account in this same name under which he was operating. If White had been operating under the name of J. L. White, trustee, as a contractor for a stipulated price per house, he most certainly would have kept books on each separate house in his own office. He would not have left all the bookkeeping on each house and on all the work to he taken care of by the owner for whom he was building. He swears positively that, after the new arrangement, he never received or disbursed a dime on the new work for labor or material, that Dyer took care of the pay roll each . week with his own office force, and that he presumed that he was taking care of the bills, for materials in the same. way. He testifies that, when he and Dyer came to make a compromise settlement, he had- no way of - knowing what bills were unpaid, except through the approved hills which he had sent to Dyer’s office. If any bill which he remembered had been incurred was not produced in this settlement by Dyer or his bookkeeper, he naturally presumed that it had been paid by Dyer under their agreement. He states further .that the said compromise agreement was based solely upon a list of bills and invoices found in Dyer’s office which had been sent in with his (White’s) approval.

This testimony of White’s is contradicted by Dyer in nearly every instance. It is a close question to decide as to which testimony is correct. It is evident that they were not in perfect agreement, for, if they had been, there could not be such a wide divergence between their respective testimony as to the plan under which they were conducting these building operations. But this failure on their part to be in perfect accord as to the plan of their operations does not necessarily defeat the claims of those who furnished the materials that went into the houses that were built. White did go to each furnisher of materials and impart the information that from that -time on he was buying materials in the name of J. L. White, trustee. Plaintiff’s new account with White was opened in the name of “J. L. White, Trustee,” and it is on that account that -this suit tá based.

All bills for materials were uniformly approved and passed on to Dyer’s office by White. No objection was ever raised tQ the procedure. So it is apparent that Dyer knew that the various furnishers of materials were selling their goods to J. L. White, trustee, for his buildings under the impression that he (Dyér) was responsible in some degree for them. If Dyer was aware of this line of conduct on the part of White, and did nothing to correct it, he cannot escape the liability that the law imposes.

The fact that Dyer disbursed all funds, and even had his own office force make up the pay roll and had them go to the scene of work each week and see, all the labor, shows that White had little, if anything, to do with the business management of the building operations. Dyer had come to the point where he wanted to know where his money was going, and he adopted this method of doing it. For all intents and purposes, Dyer, .through his office force, had the entire management of the business of the building operations. All that White did was to superintend the labor with the hope of getting a part of ■the profits for his compensation.

Under the testimony, White was operating either as a partner of Dyer or as a contractor. No satisfactory proof has been offered to show that he was a contractor, so he must have been a member of a partnership with Dyer, as his partner furnishing all the money and disbursing it. At the time that this suit was filed, this partnership had been dissolved, and its affairs, at least partially liquidated.

A case very similar to this one was before this court once before — Shreveport Long Leaf Lumber Company v. White et al., 10 La. App. 273, 120 So. 694. The same attorneys represented the plaintiff in that case that represent this plaintiff. The defendants, were J. L. White and F. L. Dyer, sued as commercial partners. The obligation on which the suit was based arose during the same period as the one in the present case arose. The lower court found the defendants, J. L. White and F. L. Dyer, to be an ordinary partnership, and rendered judgment against them jointly. The testimony in the case was confusing and conflicting, as it is in the present case. But this court approved the finding of the lower court, and affirmed the judgment. The entire record in that case was made a part of the case at bar. Reading the two records together, we have arrived at the conclusion that, after the termination of the first agreement, which evidently was a partnership, Dyer assumed full control of the business of the building operations, and White was reduced to the position of a partner furnishing his labor with his compensation dependent upon any profits .that he might make for the partnership.

Not only did the first partnership fail, but the new arrangement was evidently unsatisfactory. So, in the latter part of February, 1924, White and Dyer endeavored to compromise their differences and signed a written settlement of all their affairs. In that settlement, it was agreed that there were outstanding bills due on account of the building operations amounting to about $26,000. To liquidate .these bills, Dyer agreed to deposit $16,000 cash to the credit of J. L. White, trustee, checks on which were to be issued from, and controlled by, Dyer’s office. To pay the remaining $10,000 or more, a certain piece of property was to be sold, and, if there was anything left over, it was to belong to White, and, if this cash and property proved to be sufficient to pay off the indebtedness, White was to receive a deed to another piece of property in addition to what he may have received from the purchase price of the first piece of property. Attached to this compromise agreement was a list of claims said to be due by ‘ J. L. White amounting to $26,057.03, and including the claim of the plaintiff. It is contended that this document shows that White owes the plaintiff, instead of the defendant owing him. This might be true as between White and Dyer after the signing of the document, but creditors who had furnished materials for Dyer’s buildings under the justifiable belief that Dyer and White were partners, and that Dyer at least as a partner was responsible, cannot be prejudiced by a technical construction of any subsequent compromise agreement signed by Dyer and White. lit is significant that Dyer’s bookkeeper issued all checks against this fund of J. L.' White, trustee. Among the checks so issued was one payable to plaintiff for $500, as a part payment of the account sued on. Dyer lacked $1,800 of depositing the $16,000 agreed upon, and, as a result of his failure to so deposit the amount agreed . upon, this $500 check was never paid.

Counsel for defendant earnestly'argues that, even though Dyer might be responsible in some degree for all debts contracted in the name of J. L. White, trustee, the amount sued on, being over $500, Has not been proved in accordance with the provisions of article 2277, Civil Code. We take it that the testimony of J. E. Morgan, agent of the plaintiff, and of J. L. White, taken together, is ample proof of the correctness of the account. Counsel also urges three years’ prescription against all items on the said account that were three years old at the time of the filing of this suit. This. plea would be' good against those items, if the $500 check had not been drawn and issued by Dyer’s office on March 11, 1924, pursuant to the compromise agreement between Dyer and White. Whether or not the issuing of this check in this manner can be construed to be an acknowledgment that Dyer himself owes the plaintiff, it certainly was a written acknowledgment on Dyer’s part of the correctness of the bill at that time, and therefore interrupted prescription on the account.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled and reversed, and that there now be judgment herein in favor of the plaintiff, Victory Gravel Company, Incorporated, against the defendant, F. L. Dyer, for the sum- of $387, with 5 per cent interest from February 29; 1924, until paid, the defendant to pay all the costs of both courts.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3572
    Second Circuit
    WHITLEY v. BOATNER
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)

      F. R. Taylor and Goff & Goff, of Arcadia, attorneys for plaintiff, appellant.
    R. L. Williams, of Arcadia, attorney for defendant, appellee.
   WEBB, J.

In this action plaintiff, T. J. Whitley, seeks to recover a balance alleged to be due on two certain notes which were indorsed and transferred to him by defendant, James M. Boatner, payee, after maturity. Defendant pleaded the prescription of five years, under article 3540, Civil Code, which was sustained, and judgment rendered dismissing plaintiff’s suit, from which he appeals.

The notes were drawn by J. N. Jones on November 23, 1920, payable to the order of defendant on December 1, 1921 and 1922, respectively, and the payment of the notes was secured by vendor’s lien and mortgage on certain property belonging to the drawer, who by an indorsement written on the back of the notes, of date February 21, 1923, acknowledged that the notes were due and unpaid, and on or about that date the payee, James M. Boatner, indorsed and transferred the notes to plaintiff, Whitley.

J. N. Jones, was adjudicated a bankrupt on March 15, 1927, and the property mortgaged to secure the payment of the notes was sold in the proceedings in bankruptcy, and the proceeds delivered to Whitley, the holder of the notes. On November 21, 1927, plaintiff, after crediting the amount received from the sale of the property, filed suit against defendant to recover the balance due on the notes, which suit was dismissed as of non-suit on an exception filed by defendant, and the present action was filed on April 14 and service of process had on April 18, 1928.

In presenting the cause here, counsel in their brief devote some space to discussing matters which relate to the question of the necessity of presentment for payment and notice of dishonor, but such questions are not raised by the plea of prescription, and, considering the plea of prescription alone, the sole question presented is whether or not prescription had accrued on November 21, 1927,. when the first suit was filed, and, if not, whether the suit brought on that date interrupted prescription?

The drawer of the note having acknowledged same by the indorsement of date February 21, 1923, while the note was in the hands of the payee, there cannot be any doubt that prescription was interrupted on that date (article 3520, Civil Code), and that the note was not prescribed on November 21, 1927, which appears to be conceded by defendant. Defendant being liable on the note at that .time, prescription was interrupted by the suit filed on that date (article 3518, Civil Code), and we are therefore of the opinion that the plea of prescription should have been overruled.

It is therefore ordered that the judgment appealed from be avoided and set' aside; that the plea of prescription be overruled, and the cause remanded for further proceedings, according to law. It is further ordered that defendant pay all cost of appeal.

McGREGOR, J., dissents.


author: STEPHENS, J.

text:
    No. 3593
    Second Circuit (Second Division)
    WEIL v. O’NEAL
    (June 11, 1931. Opinion and Decree.)
    Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellant.
    John P. Phillips, of Shreveport, attorney for defendant, appellee.
   STEPHENS, J.

This is. a suit by H. M. Weil, wholesale produce dealer of Shreveport, La., against Mrs.. Edith C. O’Neal, a retail dealer in general merchandise, in Bossier City, La., on an account showing a balance due of $180.81.

The defendant answered, denying each ■ of the allegations of the petition, except demand for payment, which was admitted.

Trial was had and judgment rendered in favor of defendant rejecting plaintiff’s demands. The plaintiff appeals.

The undisputed facts are that the defendant was operating a store in Bossier City, La.; and on the opposite side of the street, in the next block, a grocery store business was being conducted, .to all outward appearances, solely by her stepson, J. B. O’Neal, The defendant’s credit was very good and the son’s credit very bad. The defendant wrote the following memorandum to Elston, Prince & McDade, wholesale grocers:

“Gentlemen:
“Please let J. B. O’Neal have whatever merchandise he wants, and I guarantee the account paid.”

She bound herself in like manner for J. B. O’Neal, to Armour & Company, Ardis & Company, and Kalmback, Burkett & Co. The concerns named would not sell J. B. O’Neal without the guaranty. It was the practice of the defendant to pay all of the bills made by J. B. O’Neal in the conduct of the business of which he was in charge. She paid such bills to the extent of some $8,000, which includes’ $236.29 paid the plaintiff.

The evidence relied on by the plaintiff, which is disputed, is. that plaintiff, acting through M. H. Weil, arranged with the defendant to deliver goods to the J. B. O’Neal store on her account; that pursuant to that arrangement Weil would obtain an order from J. B. O’Neal, take it to the defendant, and secure her approval thereof, prior to each delivery, made to said store; that the account was kept in the name of the defendant, and monthly statements were rendered to her over the entire period that it was open, which was about seven months.

The defendant’s testimony is to the effect that she had no interest in the store operated by her son, and that she did not make any arrangement to purchase' goods for him on her account; that she' never bought anything from the plaintiff, and did not know of the existence of the account until her son went out of business in Bossier City.

As above stated, it is undisputed that •the payments made on the account sued on which reduced it from $417.10 to $3 80.81, were made by the defendant. She attempted to explain this fact by stating that J. B. O’Neal would come over to her store, bring some money and some bills that were due; that he would give her a postdated check for the difference between the amount of money, and the' amount of the bills; and that she would then pay the bills with her personal check.

We are of the opinion that the weight of evidence fairly preponderates in favor of plaintiff- The defendant’s testimony in her own behalf stands alone, and is unsupported, even by her own admitted conduct. The testimony of M. H. Weil for the plaintiff is corroborated by the testimony of Harry 'Baumgardner, witness for the defendant. The latter testified that he had seen M. H. Weil on numerous occasions at the store operated by Mrs. O’Neal. This evidence corroborates Weil in his statement that he was selling the merchandise, which was delivered to the store conducted by J. B. O’Neal, directly to the defendant, and that he went to her place of business frequently for that purpose; and it .tends to refute the defendant’s statement that she never had any business transaction with, plaintiff. The testimony of M. H. Weil is further corroborated, in some particulars by his father H. M. Weil, and in all particulars by every fact and circumstance arising in the case, except the testimony of the defendant. J. B. O’Neal owed the plaintiff an old account long past due, at the time .the account here in question was opened; his credit was known generally to. be bad. The defendant executed guaranties for the benefit of J. B. O’Neal to all, it appears, who desired them. She paid with her personal checks the amounts credited on the account sued on, which not only suggests primary liability for the obligation; but renders her testimony incredible that she did not know the account existed or that it was carried on the books of plaintiff in ■ her name. When the business conducted by J. B. O’Neal was closed, the defendant took over the assets, and though he was available as a witness, she failed to produce his testimony. J. B. O’Neal must have had knowledge of every pertinent fact pertaining to the transaction. In the light of the circumstances existing, the plaintiff could not be expected to produce his testimony. It was the duty of the defendant to produce it, and her failure to do so raises a strong presumption that his testimony would not have seen of benefit to her.

The judgment herein rendered is annulled, avoided, and reversed, and there is now judgment in favor of plaintiff H. M. Weil and against the defendant Mrs. Edith O’Neal in the sum of $180.81, with legal interest on $170.06 from January 1, 1928, until paid, and like interest on $10.75 from February 1, 1928, until paid, and all costs.


author: McGREGOR, J.

text:
    No. 3814
    Second Circuit
    McCAIN v. FOSTER
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    P. E. Brown, of Arcadia, attorney for plaintiff, appellee.
    Goff & Goff, of Arcadia, attorneys for defendant, appellant.
   McGREGOR, J.

In this case plaintiff sued the defendant for $220.17 for goods, wares and merchandise which were sold by the plaintiff to the defendant for the season of 1929, for the purpose of growing crops for that year, which supplies are alleged to have been used by the defendant in making the crops of 1929 on his farm in Bienville parish. The lien allowed by law to the furnisher of supplies is claimed by the plaintiff, and therefore, coupled with his petition, he prayed for and obtained a writ of sequestration and caused to be seized and sequestrated the crops of defendant grown on his farm during the year 1929.

The defendant filed a motion to dissolve the writ of sequestration on the ground that the allegation of the plaintiff relative to his fear of the defendant removing and disposing of his crops during the pendency of the suit was false and untrue. This motion was taken up and tried and sustained, and a judgment was read and signed in open court on October 29, 1929. On October 31, 1929, plaintiff filed an application for rehearing in the matter of the trial of the motion to dissolve the writ of sequestration.

On November 19, 1929, the defendant filed his answer to plaintiff’s demand and coupled therewith he filed his reconventional demand for damages growing out of the alleged illegal issuance of the writ of sequestration. On the same day it was agreed that plaintiff’s application for a new trial on defendant’s motion to dissolve the sequestration should he tried at the same time as the main demand.

On November 20, 1929, the case was taken up for trial and the introduction of testimony was proceeded with. Plaintiff undertook to prove the amount of his claim but was met with the objection that the only allegation in plaintiff’s petition relative to the amount claimed was in globo and that, therefore, no testimony could be introduced as to dates, items and amounts making up the account sued on. The court sustained this objection and under this ruling it was impossible for the plaintiff to proceed with his case. So at this point plaintiff immediately prepared and filed a motion for a continuance of the case to give him an opportunity to amend his petition so as to conform with the ruling of the court. Simultaneously with this motion the plaintiff prepared and offered to file an amended and supplemental petition, showing that the amount claimed in his original petition was “more fully shown by an itemized statement of the said account” attached to and made a part of the petition. This petition was disallowed and the taking of testimony to substantiate defendant’s demand for damages was proceeded with. The court then took the matter under advisement.

On November 22, 1929, while the court had the case under advisement, the plaintiff filed a motion to re-open on the ground that the court had erred in refusing him the right to introduce evidence in support of his claim against the defendant. He specially set out in effect that, since defendant had answered the suit without filing any plea of vagueness, any objection to the proof of the items making up the account came too late, and that this objection should have been made in limine litis by way of a plea of vagueness or a prayer for oyer.

The motion to re-open was allowed and after various fixing the case was taken up and tried again on February 17, 1930. At this trial the plaintiff was permitted to prove the various items making up his claim against the defendant and no testimony at all was offered by the defendant. On February 21, 1930, judgment was rendered in favor of the plaintiff sustaining the writ of sequestration, recognizing plaintiff’s lien on the crops as the furnisher of supplies and granting plaintiff judgment against the defendant for the amount prayed for, less the proceeds of one bale of cotton that had been applied to the account since the suit was filed. It is from this judgment that the defendant is prosecuting this appeal.

The plaintiff and appellee has filed a motion to dismiss the appeal on the allegation of irregularity contained in (1) the manner of bringing the appeal to this court; (2) appeal bond filed, and (3) the order for appeal. Counsel has given us no argument or authorities in support of the motion to dismiss and we presume he has abandoned it. It is therefore overruled.

OPINION

The first question to be determined is as to whether the plaintiff’s allegation and proof are sufficient to have issued and sustained a writ of sequestration. The allegation of the plaintiff’s petition on which the writ of sequestration was issued is as follows:

“* * * that he has a furnisher’s lien and privilege upon the growing crops of the said John W. Foster, upon his land and that the defendant is removing said crops from the land described and the petitioner fears that the defendant will dispose of his crops upon said land during the pendency of this suit; and that a writ of. sequestration is necessary to protect the rights of petitioner in. the premises.”

On trial of the case it was proved conclusively that. it lay in the power of the defendant to dispose of the said crops in the way in which the plaintiff alleged he feared he would do. Under the law the plaintiff’s allegation and proof are sufficient and the writ was properly sustained. (Act No. 190 of 1912; Max Barnett Furniture Co. v. Louis J. Martel. 3 La. App. 234; Gueydan v. T. P. Ranch Co., 156 La. 397, 100 So. 541.)

Whatever objection there may have been to the manner in which the plaintiff alleged the amount of his claim against the defendant in his original petition was remedied by the court exercising its discretion in allowing the amended and supplemental petition. It appears that the itemized statement of the account was attached to the original petition in the first instance and that through an oversight counsel omitted to refer to the fact in his allegations, But even though he failed to refer to the fact, the allegation with reference to the debt was sufficient to admit of proof of the items and dates in the absence of any exception or plea in limine. After alleging the amount of the indebtedness, the original petition contains the following allegation: • ....

“That petitioner furnished the defendant goods, wares and merchandise which was sold and delivered to the defendant for the season of 1929 for the purpose of growing crops for the present year, and that said goods were used in making the crops on the defendant’s farm in Bienville Parish for the crop season of 1929.”

In the absence of any plea of vagueness or prayer for oyer asking for an itemized statement of the account, the above- allegation was sufficient to admit of proof on the trial of the case on the merits.

On the trial of the case the defendant, though present and represented by counsel, did not take the stand- to deny any item of the account. In view of this fact the testimony of the plaintiff and his bookkeeper as to the correctness of the account was sufficient proof of the same. On trial of the motion to dissolve, the defendant admitted that he qwed the plaintiff an account and it is evident that he recognized the same by making payments on it.

For the reasons assigned the judgment appealed from is affirmed; the defendant and appellant to pay all the costs in both courts.


author: TALIAFERRO, J.

text:
    No. 3615
    Second Circuit (Second Division)
    COMMERCIAL BANK v. McCAIN
    (June 11, 1931. Opinion and Decree.)

      J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   TALIAFERRO, J.

On February 3, 1920, defendant Tom McCain and one M. W. Fields signed a note for $550 as makers, in favor of plaintiff bank, which was indorsed by J. E. Currie, then sheriff of Biénville parish, and by J. T. Reeves. This note matured October 1st following its execution. McCain was a resident of Natchitoches parish. The other parties to the note lived in the parish of Bienville.

In May, 1921, Fields proposed to plaintiff to take a second mortgage on his 140-acre farm, which the president of the bank at first declined, stating that he did not believe a second mortgage worth anything, but afterwards assented to the proposition. Fields made a note to himself for $637.50, due November 1, 1921, and executed the mortgage to secure its payment. This note was turned over to plaintiff. The Federal Land Bank held first mortgage against this farm and foreclosed thereon. The property did not bring enough at sheriff’s sale to pay the first mortgage debt. This occurred before the renewal note sued on was taken.

The note of $550 remaining unpaid, in February, 1922, ' plaintiff prepared a new note for $605 (principal of old note plus $55 interest), and sent it by mail to Fields with instructions that he sign same and have McCain sign it and return to the bank. This, renewal note was dated February 28, 1922, and matured October 1st after date. It is the note sued on and is signed by Fields and McCain as makers. Reeves, one of the indorsers on the $550 note, died soon after date of the note, and Currie’s name does not appear on the renewal note. The president of plaintiff bank testified that he did not consider either indorser’s signature added anything to the note’s security. Fields was not made a party to this suit, but plaintiff reserved its rights against him.

Defendant admits signing the note sued on and the original note of $550 also. He avers that he would not have signed the first note but .for Currie’s signature thereon as indorser; that they both signed the note as accommodation to Fields; that long after said original note was executed plaintiff wanted to have same renewed by the giving of a new note and Fields approached him about the matter, informing him that he did not know why the bank desired the new note as he had given a mortgage on his property to cancel said original note signed by Fields, McCain, Currie, and Reeves; that as he lives some distance from Arcadia in Bienville parish, where plaintiff is located and Currie lived, he did not have the time to go there and discuss the matter, he signed said renewal note with the express understanding that if the bank had agreed to release Currie and him on said original note in that event the renewal note was not to be delivered, and if no release had been given by the bank then said renewal note was not to be delivered to it unless signed by Currie; that this was the last information he had on the subject until sued.

Defendant further avers that he has been informed and believes that plaintiff did agree to and did release him. and Currie from the original note when Fields gave the mortgage to plaintiff on his farm; that the note sued o.n is incomplete because not signed by Currie and would not have been signed by respondent unless he believed Currie would also sign it; and was signed by respondent in error of the fact he had been released from the original debt. He pleads error, fraud, and misrepresentation in the procuring of his signature to the note sued on.

Judgment was rendered in favor of plaintiff for the amount of the note, attorney’s fees, and interest. Defendant appealed.

Fields, co-maker, testified as a witness on behalf of defendant. He states that it was. his understanding the mortgage note he gave the bank was to take care of the $550 note and release Currie and McCain. He admits that he voluntarily offered the mortgage to the bank and that Mr. Felts, president, at first declined it, stating that he did not think a second mortgage on the property would take care of the debt. He also admits that he signed the renewal note and carried it to McCain and had him sign it also, then mailed it back to the bank. He did not present it to Currie for his signature. He admits that at the time the original note was negotiated he was indebted to McCain and that the debt was settled from the proceeds of the note. He states that McCain was not willing to sign the renewal note unless Currie’s signature was on it and that he told McCain that Currie had agreed to sign it.

It is not contended that the bank was informed of McCain’s position with reference to Currie’s signature on the renewal note. That seems to have been discussed only by him and Fields. The renewal note reached the bank without Currie’s indorsement thereon and, the evidence satisfies us, was accepted in lieu of the original note and carried as an asset of the bank thereafter.

Mr. Felts, president, is positive that by accepting the mortgage collateral offered by Fields there was no agreement or understanding to release any one bound on the original note of $550. He stated in accepting the mortgage note as collateral he was trying to protect McCain.

The defense in this case is a special one. The burden of proof was on defendant to establish his release. We do not think he has done so. Schwartz Bros. v. Shaheen, 8 La. App. 68; Civ. Code, arts. 1848, 2232.

Defendant would have better grounds of complaint on account of absence of Currie’s indorsement of the renewal note if he (defendant) had been an indorser also; but as he is a maker, sustaining a primary obligation, while the indorser’s obligation is only secondary, we cannot see wherein his rights have been prejudiced by releasing the indorser.

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument •to a holder for value.” Section 29, Act No. 64 of 1904.
“The maker of a negotiable instrument by making it engages that he will pay it according to its tenor.” Id. sec. 60.

Slidell Sav. & Homestead Ass’n v. Seal, 2 La. App. 617.

Defendant having signed both the original and the renewal note as maker, his responsibility to the holder of .these notes is fixed thereby. Even if Currie had indorsed the renewal note, as he did the original note, the plaintiff could have proceeded against the makers, primarily liable, without involving the indorsers- in the suit.

The evidence makes it quite clear -that the bank did not accept the mortgage note of Fields for any other purpose than to be carried as collateral security against the original note of these parties. If it did not add to the safety of the loan, it could do no injury. Evidently the bank felt that the loan was secured through the personal responsibility of the makers, and it would be convicting its officers of very poor business judgment to conclude that they were willing to surrender a good piece of paper for one only secured by a second mortgage on a farm which very soon thereafter failed to bring enough at foreclosure sale to discharge the first incumbrance against it.

Fields’ evidence alone supports defendant’s plea that he has been released. If Fields was sincere in his pretensions on this score, it is passing strange that he would take the renewal note to McCain for his, signature and then sign it himself and send it to plaintiff.

Judgment appealed from is affirmed.


text:
    No. 3943
    Second Circuit
    RAINEY v. MIANO
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    M. C. Redmond and Dhu Thompson, of Monroe, attorneys for plaintiff, appellee.

      Joseph S. Guerriero and W. Decker Moore, of Monroe, attorneys for defendant, appellant.
   McGREGOR, J.

This is a suit for damages growing out of a personal encounter between plaintiff and defendant on November 3, 1929, wherein plaintiff was shot by the defendant. The defendant, Biaggio Miaño, is the owner of several rent houses in the city of Monroe. Plaintiff’s brother, Sol Cash, rents one side of one of defendant’s houses, and on the occasion of the encounter which forms the basis of this suit, .the defendant went, to the house to collect his rent. Sol Cash was not at home and naturally the defendant endeavored to collect the rent from his wife, Carrie Cash, who was inside the house in her front room. While the conversation had in connection -with this effort to collect the rent was taking place inside the house, the plaintiff, Clayton Rainey, a brother of Sol Cash, was sitting in a chair on the front porch and .called to the defendant and told him not to fuss at Carrie about the rent, but to wait until her husband should return. He assured him that Sol Cash would be there in a few minutes and that he would then pay the rent. The defendant then’ left the room,' went to .the front porch where plaintiff was sitting. Several words were passed by the two and a scuffle had just begun when the defendant, who was. armed, drew a pistol and shot the plaintiff and another man who was inside the house. Plaintiff ran away as soon as he was shot and had an acquaintance call an ambulance, and he was carried to a hospital for treatment. As the wound proved to be not so bad, he was dismissed in a day or two and permitted to go to his brother’s home to recover from his wound. He has brought this suit for damages in the sum of $5,180 for the injuries he received. The plaintiff has only - one leg and uses, an artificial limb, which he says cost him $150. In addition to the damages done him physically by the shot in his body, the plaintiff claims that in jumping from the gallery and running away after he was shot he injured his artificial limb to such an extent as to render it useless. On trial in .the lower court judgment was rendered in favor of the plaintiff for $300. The defendant has appealed, and the plaintiff has answered the appeal and asks that the judgment be raised to $500.

The evidence in the case is conflicting. It is the contention of the counsel for the defendant that the plaintiff was the aggressor in the difficulty, and that he cannot recover damages for the injury, even though the defendant may have gone too far in his self-defense in shooting him. Counsel are correct in their statement of the law. The case hinges entirely on the question as to whether the plaintiff provoked the difficulty and was the aggressor. There is, testimony in the record to substantiate the contentions of both plaintiff and defendant. The trial judge saw and heard all the witnesses and observed their’ demeanor on the stand, as well as their manner of testifying. We do not find that the evidence in the case justifies us in disturbing the judgment rendered. There is ample evidence to support it, and it should be affirmed.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and it is hereby, affirmed; the defendant to pay all costs of both courts.


author: DREW, J.

text:
    No. 3979
    Second Circuit
    ALLEN v. CAMPBELL ET AL.
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    See also, Stevenson v. Campbell, 134 So. 718, 17 La. App. 142.
    H. ,W. Ayres, of Jonesboro, attorney for plaintiff, appellee.
    "Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff alleged that his minor daughter, while driving his Chevrolet coúpe on the paved highway coming from Hodge, La., to Jonesboro, La., was run into by a large truck, belonging to L. T. Campbell and being driven by Grady Atkins; that his daughter was driving at a moderate rate of speed on the extreme right-hand side of the road, and, before being struck-by the truck, had brought her car almost to a stop; that the truck was being driven at an excessive rate of speed and, on its left-hand side of the road; and •that his car was nearly, if not entirely, demolished — all through the fault, negligence, and carelessness of said Atkins, who was in the employ of Campbell and engaged in the said Campbell’s business at the time. Plaintiff further alleged that the cost to repair his car was $409.48, and the value of the car was depreciated in an additional sum of $75. He prayed for judgment accordingly against Campbell and Atkins in solido. *

Plaintiff further alleged that the collision threw his car across the road into the path of a truck owned by W. C. Stevenson, whose truck also ran into plaintiff’s car, and made Stevenson a party defendant. However, before trial the case as to Stevenson was non-suited.

Defendants Campbell and Atkins filed exceptions to the citation which were lot passed upon by the lower court and are not urged here. They then answered, denying the main allegations of plaintiff’s petition, and alleged that Atkins was. operating the truck at k lawful and reasonable rate of speed, not in excess of twenty miles an hour and on the right-hand Side of the road; that plaintiff’s car was being driven at a careless and reckless rate of speed on the wrong side of the road, with utter disregard of, the rights, of others upon the highway, which was the sole and only ■ causé of the accident. Defendants further alleged that plaintiff’s car struck defendants’ truck at a point to the rear of the driver’s seat and deny liability; and in the alternative, pleaded contributory negligence by reason of the facts alleged.

On these issues the case was tried in the lower court, resulting in judgment for plaintiff, as prayed for. From this judgment defendants prosecute this appeal.

Appellee has filed in this court a motion to dismiss the appeal. The question presented in said motion has never been directly passed upon, and we prefer to overrule same and pass upon the merits, since our finding is that the judgment of the lower court is correct.

Plaintiff produced four eyewitnesses to the accident, all of whom testified that plaintiff’s car was on the extreme right-hand side of the road coming towards Jonesboro; that the truck-was in the middle and to the left of the road, going towards Hodge. The road consisted of eighteen feet of pavement, and the shoulders had not been completed; and to the right of plaintiff’s car, just off the pavement, was a ditch several feet deep, which prevented plaintiff’s car from leaving the pavement. The uncontradicted testimony of several witnesses is that plaintiff’s ear was brought almost to a stop at the time of the accident, with the right wheel within a few inches of the edge of the pavement, and while in this position that the heavy truck of defendant crashed into it, practically demolishing it.

The young lady driving the ear was knocked unconscious, and remained so until the next day. The truck was moving at a speed of twenty-five or thirty miles per hour, and, after the accident, continued on its way, without ever stopping, the driver of same being stopped at Ruston, about twenty miles, away, and returned to jail at Jonesboro.

Defendant offered only one witness, the claim agent of' the insurer of defendant Campbell, who viewed the scene two days later, and who testified that there was a shoulder on the road at tne place of the accident about two and one-half to three feet wide, and only about six inches lower than the pavement. The preponderance of the evidence, however, is - to the contrary. Atkins, the driver of the truck, was not ' only negligent and careless, but he was criminally negligent, and his action, after he had crashed into plaintiff’s car, in speeding away with utter disregard for the occupant of the car he had demolished, leaving an unconscious girl in the wreck, denotes a heart devoid of feeling of that human kindness, sympathy, and sorrow that must at some time penetrate the hearts of the most cruel savages.

Plaintiff has proved without contradiction the essential allegations of his petition. The young lady driving his car did all that any one could do to prevent being run into, and was in no way negligent. The damage to the car was proved without contradiction, and the judgment of the lower court is correct.

Defendant cites, the case of Maritzky v. Chadick-Hayes Company, 12 La. App. 104, 124 So. 566, which he contends is authority for reversing the lower court in this case. We fully agree with that decision, but it has no application here. In that case plaintiff was clearly negligent under the facts found by the court, and had eight and one-half feet within which to pass defendant; while in this case plaintiff’s, car was within a few inches of a ditch and. could not go any farther to the right. The facts of the two cases are entirely different.

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


text:
    No. 3981
    Second Circuit
    WILLIAMSON v. RUSTON STEAM LAUNDRY, INC., ET AL.
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    J. W. Elder, of Ruston, attorney for plaintiff, appellee.
    Barksdale, Warren & Barksdale, of Ruston, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued for damages alleged to have been caused him by a collision with defendant’s car. He itemizes the damage as being $89.29 for repairing’ his car, and $25 for loss of use of the car while same was being repaired. He recovered judgment in the lower court for the repair " bill, amounting to $89.29, and defendants have appealed.

The only proof offered by plaintiff and his witnesses as to the amount of damage is that the repair bill on his car was $89.29, less $3.50 for a windshield that had been previously broken, and the loss of use of the car for two days. Plaintiff placed his loss on this account at from $4 to $5 per day. It is clear that the amount in dispute is less than $100, and this court has no jurisdiction of the case.

It has been repeatedly held that, whenever the matter in dispute appears to be really under the lower limit of the jurisdiction of this court, though from the averments. and prayer of petition it is represented as exceeding the same, the claim will be treated as not serious and as fictitious and garbed solely to bring it within appellate jurisdiction, and the appeal' will be dismissed ex proprio motu. Bright v. Thompson, 38 La. Ann. 801; Pinckney v. Wolf, 41 La. Ann. 306, 6 So. 27; and Lea v. C. A. Orleans, 46 La. Ann. 1444, 16 So. 456.

Nowhere in the record, other than in the petition, does the plaintiff claim damages in the amount of $100. This court clearly has no jurisdiction, and it is therefore ordered, adjudged, and decreed that the appeal be dismissed, with costs.


text:
    No. 3979
    Second Circuit
    STEVENSON v. CAMPBELL ET AL.
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellee.
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

This is a companion suit to the case bearing the same number decided this day, entitled I. J. Allen v. L. T. Campbell et al., 134 So. 717, 17 La. App. 139. The two were consolidated for trial only.

The plaintiff herein alleged that his delivery truck driven by his son, a minor, was traveling from Jonesboro to Hodge, just behind defendant’s truck, which ran into the Allen car and that the left front wheel of the Allen car was broken down by the collision with defendant’s truck and the car thrown across to the left side of the road into the ditch and against his truck, knocking it into the ditch and demolishing it. He alleged that the accident was caused by' the negligence and carelessness of tlie driver of defendant’s truck in driving on the-left-hand side of the road and at a reckless rate of speed. He prays for damages in the sum of $325, for damage done to his truck. He alleges that the driver of the truck was employed by the defendant, Campbell, and engaged in defendant’s business at the time of the accident.

Defendants, after filing exceptions to the citation, which were not passed on below and are not urged here, answered setting up the' same defense as that in the suit of I. J. Allen agaihst them; and in the alternative pléaded contributory negligence on the part of plaintiff in that his son, the driver of his truck, was operating it at an excessive rate of speed and without regard to the distance of said truck ahead of him, and in failing to maintain control of his said truck so as to be able to stop "within a reasonable distance in case of an emergency! There was judgment in the lower court for plaintiff, as prayed for, and from that judgment defendants prosecute this ‘ appeal.

The question of negligence on the part of defendant was fully gone into in the companion case heretofore referred to and the reasons given therein are herein adopted. Defendant was negligent in running into the Allen car and the evidence is conclusive that the Allen car was thrown by the truck across the road into the path of plaintiff’s truck, thereby causing the collision that knocked plaintiff’s truck into the ditch and damaged it to the extent claimed by him.

The only remaining question is the contributory negligence of plaintiff’s son. The testimony is that plaintiff’s son was driving behind defendant’s truck twenty-five to thirty yards at a rate of speed of from twenty-five to thirty miles per hour, and that he had slowed down to a stop when he was struck by the Allen car. His speed was not excessive and the distance he was from the truck was not such negligence that would bar him from recovery. It is not negligent to drive a car on a highway-such a distance behind another vehicle, and plaintiff was not called qn or required to be on guard for such an unexpected happening as occurred at that time — that is, for a truck to run into a car and throw it across the road into his path. The sole and proximate cause of the injury to plaintiff’s truck was the negligence of defendant in running into the Allen car, and the judgment of the lower court is correct.

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


text:
    No. 4022
    Second Circuit
    LEWIS v. METROPOLITAN LIFE INS. CO.
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    Barksdale, Warren & Barksdale, of Ruston, attorneys for plaintiff, appellee.

      Spencer, Gidiere, Phelps & Dunbar and Truett L. Scarborough, of New Orleans, attorneys for defendant, appellant.
   WEBB, J.

This is an action to recover an amount alleged to be due under an industrial life insurance policy issued by defendant, Metropolitan Life Insurance Company, on January 1, 1930, on the life of Arthe Lewis, who died on January 15, 1930.

The policy which is annexed and made part of the petition stipulates that the amount due shall be payable to the executor or administrator of the insured, and it also contains a provision that payment may be made to the wife or any relation by blood or connection by marriage, or any other person appearing to the insurer 'to be equitably entitled to same by reason of having incurred expense on behalf of the insured or for his burial. There is also a provision in the policy which reads that:

“If the insured has within two years before tlie date of the policy been attended by any physician for any serious disease or complaint, or before said date, has had any pulmonary disease or chronic bronchitis, or disease of the heart, liver or kidneys * * * unless such medical attention or previous disease is specifically recited in the space for endorsements and signed by the secretary, the liability of the insurer shall be limited to the return of the premiums paid, etc.”

This action is brought by Annie Bell Lewis, who alleges that she was the wife of Arthe Lewis, the insured; that due proof of death had been made, and that defendant, after having issued a check for the payment of the amount of the policy, of which plaintiff was given notice, had refused to deliver the check to plaintiff or to pay any amount under the policy; and she prays for judgment for the full amount of the policy.

In answer defendant admitted the issuance of the policy, payment of premium, death of the insured and due proo'f, demand for payment, and the circumstances alleged relative to the issuance of the check, otherwise denying plaintiff’s allegations, and defendant especially pleaded that the policy had been issued after a medical examination of the insured; that the insured had within two years before the. date of the issuance of the policy been attended by a physician for a serious disease or complaint, to wit, Bright’s disease and heart disease, etc., which disease was the cause of the death of the insured; and that the policy was void under the stipulation of the policy referred to above, and defendant was liable only for the return of the premium.

Plaintiff filed a rule on defendant to show cause why judgment should not be rendered against it on the face of the pleadings (see Act No. 27 of 1926), and on trial the rule was made absolute and judgment rendered accordingly, from which judgment defendant appeals.

Appellant urges that, the policy stipulating payment should be made to the executor or administrator of the insured, it was essential that plaintiff should have offered evidence showing that she appeared in such capacity, or that she became vested with the ownership of the rights acquired under the contract, and further that, under the conditions of the policy referred to above, the facts alleged by defendant constituted a complete defense to any liability under the policy.

Considering the first defense urged by appellant, while it is apparent that the contract contemplated that the payment of any amount due on the policy could be made to the succession of the insured, it is evident the insurer could not be prejudiced by a payment made to the heirs of the insured, hut the law does not declare that the wife is either the representative of the succession of her husband or his heir, only in exceptional cases, or that she has a vested interest in other than community property.

There is not any allegation that plaintiff was the executrix or administratrix of the succession, or heir of the husband, or that the” rights under the policy were community property, and even though defendant had admitted that plaintiff was "the wife of the insured, which as stated was denied, we do not think that she could recover on the policy in che absence of evidence showing that she was the representative of the succession, or heir of the insured, or that an interest in the policy vested in her on the death of the insured, and unless defendant should be held to be estopped from contesting plaintiff’s right to institute the suit, under the provision in the policy that payment could be made to the wife, or by having issued a check payable to her, we are of the opinion that the court erred in making the rule absolute and rendering judgment against defendant.

We do not think it can be said defendant by merely having a check issued admitted any liability to plaintiff, or that she was entitled to .receive any amount due under the contract, or that the stipulation that the payment of the amount due under the po.licy could be made by the insurer to the wife constituted plaintiff the beneficiary under the policy or estopped defendant from contesting the demand for payment.

We are therefore of the opinion that the rule should have been recalled and discharged, at plaintiff’s cost, and this view of the cause renders it unnecessary that we should determine whether or not the facts alleged by defendant would be a defense to the suit or whether evidence would be admissible under the pleadings to show, either that plaintiff was the representative of the succession of the insured or that she had a vested interest in the policy, or whether or not evidence should be admitted in support of the special defense.

It is therefore ordered that the rule be recalled and discharged, at plaintiff’s cost, and that the judgment rendered in favor of plaintiff be avoided and set aside. It is further ordered that the cause be remanded for further proceedings, according to law, and that all costs incident to the rule and cost of appeal be paid by plaintiff.


author: JANVIER, J.

text:
    No. 13,587
    Orleans
    NICHOLAS CAMARATA, INC., v. COOK
    (May 11, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)

      Walter M. Barnett, Jr., of New Orleans, attorney for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

The intersectional automobile accident which brings about this litigation occurred at the corner of Dumaine and North Galvez streets shortly after 2 o’clock in the afternoon.

The contestants were a small Chevrolet coach operated by defendant and a large White truck owned by plaintiff and operated by one of its employees.

In spite of the greater size of the truck, it emerged from the encounter in a much damaged condition, and its. owner now seeks to hold defendant responsible because of the alleged speed at which he drove his Chevrolet coach as it entered the intersection and because he failed to comply with the city traffic ordinance, No. 7490 C. C. S., under article 1, section 1, of which the truck was entitled to the right of way, since it was proceeding on a street on which was located a street railway track.

It is also charged that, after, the danger of a collision became obvious, defendant could still have avoided crashing into the truck had he swerved his automobile to the left and passed around the rear of the truck, but that, instead of doing so, he turned to his right, and thus rendered certain a collision which, up to that time, had been only imminent.

Defendant admits that he was guilty of a technical violation of the ordinance, in that he failed to bring his car to a full stop before attempting to cross the other street, on which was a street car track, but. he contends that this violation was of little, if any, importance, and that the proximate cause of the accident was the negligence of the plaintiff’s, chauffeur in driving the truck, heavily loaded and carrying great momentum, at a speed too great to permit of its being stopped within a reasonable distance.

Defendant also charges that the collision between the two motor vehicles caused no serious injury to either, and that practically the entire damage to the truck was sustained when its driver, in attempting to avoid coming into contact with the Chevrolet, turned it to the left into a large telephone or electric light pole standing on the corner.

The trial court rendered judgment for plaintiff for $250. Petitioner had prayed for a judgment of. $282.17, and it is now contended, in answer to the appeal, that the amount of the judgment should have been $272.17 instead of $250. This contention we will discuss later.

That defendant was guilty of a technical violation of the ordinance is conceded, and that that violation had causal connection with the accident we are convinced, since it is. very evident that, had he stopped and looked, as he should have done, he would have seen the truck, at that- time only a short distance from him and approaching on a legally favored street. It is true that we said in Simpson v. Pardue et ah, 15 La. App. 341, 131 So. 854, 855, that in such a situation the driver of an automobile attempting to cross a right of way street “was not required to wait before attempting to cross until there was no vehicle in sight on the favored or right of way street, and it was only necessary that it should appear that there was a reasonably safe opportunity to proceed.” Here, however, it appears that a reasonably prudent driver would not have deemed it safe to attempt to negotiate the crossing, under the circumstances.

Nor do we feel that the truck driver was contributorily negligent, and our view in this regard is largely formed as a result of the testimony given by the only disinterested witness, a Mr. Coignet, who voluntarily came forward and offered to assist the negro driver when he was charged by defendant with being at fault. According1 to this, witness, the speed of the truck was moderate, and its chauffeur sounded his horn before he reached the intersection, whereas the Chevrolet, without warning of its approach and without stopping, came into the intersection so close to the truck that the collision could not be avoided.

That the major part of the damage resulted from the collision with the post instead of from the contact which took place between the two vehicles is of no importance, since, in turning the truck into the post, the driver thereof acted in an emergency, which was neither caused nor contributed to by himself. Buckner v. Powers, 12 La. App. 630, 125 So. 744; Kennedy v. Opdenweyer, 11 La. App. 532, 121 So. 636, 123 So. 906.

Defendant complains that the amount of the judgment is excessive, whereas plaintiff contends that it should be increased. Defendant’s contention is based on the fact that, instead of repairing the damaged truck, plaintiff found it advisable to purchase another second-hand chassis and to transfer the body from the damaged truck to that part which was newly purchased. The evidence shows that to repair the damaged truck would have cost more than to purchase the other. Plaintiff, then, in purchasing the other, did what was proper to minimize the damage. On the other hand, we see no reason for the refusal of the trial judge to award to plaintiff judgment for the full amount of the loss which it sustained. The evidence shows that an allowance of $10 would have been proper as the value of the wheels of the old chassis which were used on the newly purchased one, and we do not see that this allowance has been made. We therefore believe that, except for the credit of $10, which is shown to be the value of these wheels, plaintiff’s claim has been proven in accordance with its petition.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended' by increasing the amount thereof to $272.i7, with - interest from judicial demand; defendant to pay all costs.


text:
    No. 4001
    Second Circuit
    LARANCE ET AL. v. NORRIS
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    E. L. Walker, of Ruston, attorney for plaintiffs, appellees.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   WEBB, J.

This is an action for damages arising out of an automobile collision, in which each of the owners of the cars claims that the collision resulted from the negligence of the driver of the other ear, and each claims damages sustained by their respective machines from the collision.

The collision occurred after dark on a public highway which runs approximately north and south, at a place where the road curves; and at the time of the accident plaintiff’s car was moving south and defendant’s ear was moving north. Each of the-parties alleged that the cause of the collision was due to the negligence of the driver of the other car in driving on the wrong side of the road at an excessive rate of speed; and defendant alleged in the alternative, in event it should be held that the driver of his car was guilty of any negligence, that the driver of plaintiff’s car was guilty of contributory negligence in driving at an excessive rate of speed in going around the curve.

On trial, judgment was rendered in favor of plaintiff, and defendant appealed, urging here that the court erred in its finding that defendant’s- ear was being driven on the wrong side of the roadway; and, in the alternative, appellant urges that the evidence established that plaintiff’s car was being driven around the curve at a rate of speed in excess oi 15 miles per hour, in violation of the statute regulating traffic on the highways (Act No. 296 of 1928), and that the violation .of the statute contributed to the accident.

The evidence relative .to the position of the cars on the roadway at the time of the collision was, as the pleadings would indicate, conflicting. The drivers and occupants of the respective cars stated that the other car was on the wrong side of the roadway; yet the preponderance of the evidence relative to the physical facts shows that the collision occurred on the west side of the roadway, and supports, the statement of the driver and occupant of plaintiff’s car, and it cannot be said that the finding of the trial court relative to the position of the cars at the time of the accident was manifestly erroneous; and, unless the proof shows that the driver of .plaintiff's car was/ guilty of contributory negligence, the judgment holding defendant responsible for the damage resulting from the collision was correct.

Considering the contention that the driver of plaintiff’s car violated the statute, and that such violation contributed to the accident. While the evidence established that plaintiff’s ear was being driven at a rate of speed of 30 miles per hour around the curve, such rate of speed is not excessive, under the provision of the statute on which appellant relies (title 2, sec. 5, subsection (b), par. 4, Act No. 296 Of 1928), unless the driver’s view was obstructed within a distance of 100 feet along the highway in the direction in which he was proceeding, and the evidence does, not establish that the driver of plaintiff’s car did not have a view of the roadway for a distance of 100 feet in the direction in which he was proceeding. On the contrary, the driver of defendant’s car and defendaht, who was one of the occupants of the ear, stated that they had seen plaintiff’s car when it was at a distance of approximately 75 yards, which indicates, at least, that the driver of plaintiff’s, car had a view of the roadway for more than 100 feet. The evidence does not show that the driver of plaintiff’s car violated the statute or that the rate of” speed at which the car was driven contributed to the accident.

There was not any contest as to the amount awarded plaintiff, and, from our review of the evidence, we find that the judgment appealed from is correct, and it is affirmed, at appellant’s cost.


author: HIGGINS, J.

text:
    No. 13,522
    Orleans
    DAVIS v. FERGUSON
    (February 2, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review • Granted by Supreme Court.)
    (June 22, 1931. Opinion and Decree of Supreme Court.)

      Milling, Godehaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellant.
    Bond, Curtis, Hall & Foster, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is. a suit brought during December, 1922, by the Director ” General of Railroads, as Agent for the United States of America, against the defendant for the collection of1 the sum of $878.50 demurrage charges alleged to have accrued upon seven carload shipments of hay during the months of April, May, and June of 1918.

The defendant first entered a plea of prescription, which was sustained by the district court, and the suit dismissed. On appeal to this court, the judgment was reversed on April 30, 1925, and the plea of prescription overruled, and the case remanded to the lower court for further proceedings.

The defendant admits the shipments, but ' denies that there was any demurrage due by him, because: First, the tariffs on which the plaintiff brbught the suit does not provide for demurrage or storage on cars loaded with hay and consigned to dealers in New Orleans, unless and until the cars, are unloaded; second, that there is no allegation, evidence, or proof that notice of the arrival of the ears consigned to the defendant was given to him in writing; third, that there was no delivery of the cars to defendant, which was a condition precedent to the accrual of demurrage, because the cars were not unloaded in accordance with the universal custom and practice and also the standing instructions given to the railroad company by the .hay dealers of New Orleans.

The record shows that, after the suit was filed and before its trial, Andrew W. Mellon was appointed as Director General of Railroads of the Uniied States of America in place of James G. Davis; by appropriate motion and order entered in this cause, the name of Andrew W. Mellon was. substituted for that of James C. Davis as Director General of Railroads and Agent of the United States, and as plaintiff in this cause, all in accordance with the acts of Congress governing such substitution.

On the trial of the case on its merits, there was judgment dismissing plaintiff’s suit, and plaintiff has appealed.

It is conceded by the defendant that the demurrage charges on the respective cars have been correctly figured and would be due the plaintiff if the defenses interposed are not well founded.

Taking up these defenses in the above order, we observe that on December 26, 1917, the President of the United States, in accordance with the power vested in him under an Act of Congress of August 29, 1916 (39 Statutes 645 [10 USCA sec. 1361]), by a proclamation took possession and assumed control of the railroad transportation systems of the United States. By this proclamation a Director General of Railroads was appointed with full authority to take possession and control of the railroads and to operate them. Northern Pacific Railway Co. v. North Dakota, 250 U. S. 135, 39 S. Ct. 502, 63 L. Ed. 897; Krichman v. United States (C. C. A.) 263 F. 538.

It appears from the record that prior to February 10, Í918, the demurrage tariffs, which were enforced in New Orleans, did not require that demurrage be assessed on earload shipments of hay shipped into New Orleans, but provided that, where ears could not be unloaded on account of crowded warehouse conditions, they be held subject to storage charges and not demurrage charges. This provision of the tariff conformed to a further tariff rule where-under the railroads at New Orleans reserved to themselves the right to waive the requirement that carload shipments of freight be unloaded by consignees, and the right to unload such freight at the freight terminals of the railroads in the city of New Orleans for the purpose of expediting the release of equipment.

This tariff rule had been in existence for a considerable number of years prior to February, 1918, and New Orleans hay dealers had adopted the practice of giving the railroads standing orders to unload the hay in railroad warehouses, in accordance with the tariff, unless instructed to the contrary. Thus, under this tariff, cars containing hay were eliminated from the application of demurrage- charges, and storage rates were made applicable instead.

On December 29, 1917, the Director General of Railroads issued General Order No. 7 to be effective February 10, 1918, the pertinent portion of which reads as. follows:

“All carriers by railroads, subject to the jurisdiction of the undersigned, are hereby ordered and directed forthwith to publish and file, and to continue in effect until further order, tariffs in the form shown in the attached appendix, effective February 10, 1918, changed so as to provide:
“A (1) Forty-eight- hours (two days) free time for loading or unloading, on all commodities.
“(2) Twenty-four hours, (one day) free time on cars held for any other purpose permitted by tariff. * * *
“D. That the demurrage charge on all cars, after the expiration of the free time allowed, be $3.00 for each of the first four days, $6.00 for each of the next three days, and $10,000 for each succeeding day. * * *
“These charges will supersede all those named in any existing tariffs applicable to carload freight except (here follows a list of exceptions but car load shipments of hay were not included among same). * *

After providing for these exemptions, we find this language:

“And specifically contemplate the cancellation of all conflicting provisions of existing tariffs.”

Nowhere in the general order or the appendix thereto are carload shipments, of hay excepted from the operation of the demurrage tariff.

On February 7, 1918, the carriers issued Joint Demurrage and Storage Tariff No. 1-C, which was. “issued under special authority of the Railroad Commission of Louisiana, Order No. 2169, without formal hearing, in conformity with Order No. 7 of the Director-General of Railroads of the United States.”

The provisions of Tariff No. 1-C, conformed to the requirements of General Order No. 7 and the appendix thereto, and the cars to which the demurrage tariff was applicable are listed in item No. 1, Rule No. 1, of the Tariff, as follows:

“Cars held for or by consignors or consignees for loading, unloading, forwarding directions, or for any other purpose, are subject to these Demurrage Rules, except as follows. * * * ”

An examination of the exceptions provided shows that carload shipments of hay are not included in them.

We further find in this, tariff item No. 13, rule No. 1, dealing with freight subject to the rules, section B of which provides:

“Section B — Other carload freight held in cars for delivery and subsequently unloaded in or on railroad premises is subject to demurrage rules while in cars and to these storage rules after it is unloaded.”

After a careful examination of the record, we have reached the conclusion that Tariff No. 1-C conforms to the General Order No. 7, and eliminates those provisions of the earlier tariff, effective prior to February 10, 1918, whereunder carload shipments of hay arriving in New Orleans could be retained in ears subject to storage and not demurrage charges.

From the record it further appears, that all of the cars upon which demurrage is claimed arrived in New Orleans subsequent to February 10, 1918, and on April 30, 1918, were still in the possession of the railroad and still loaded.

On April 29 or 30, 1918, there was posted on the bulletin board of the Board of Trade, at New Orleans, a notice calling attention to the fact that demurrage would be charged on hay under the tariffs. The demurrage charges, here sought to be collected were in each case calculated from April 30, 1918, storage charges having already been collected, on the ears up until that date from the defendant.

The jurisprudence is clear on the law of carriers that they cannot collect any other transportation charges than those provided for by the tariffs in force. It is likewise true that carriers must collect the tariff charges, and no error in failing to collect the legal transportation charges at the time of shipment or delivery will excuse the carrier from collecting the deficiency, or relieve, the shipper from paying it, and any special contract between the carrier and the shipper which would seek to modify the obligation imposed by the tariff is illegal, as the tariff itself is the contract between the parties and is the only con-, tract that the law will regard. Atchison, Topeka & Santa Fe R. Co. v. Robinson, 233 U. S. 173, 34 S. Ct. 556, 58 L. Ed. 901; Vandalia Railroad Co. v. United States (C. C. A.) 226 F. 713.

As a further corollary to the principles above discussed, it is likewise the law that a carrier may not offer any special service -to any particular shipper or group of shippers which is not provided for by the tariffs. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 32 S. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501.

These principles apply with equal force to demurrage tariffs as to freight tariffs, because demurrage is as much a part of the transportation charge as is freight. Davis v. Timmonsville Oil Co. (C. C. A.) 285 F. 470.

In the light of the foregoing authorities and provisions of the tariff, we are of the opinion that the first defense is without merit.

The second defense is that the plaintiff failed to allege and prove that written notice of the arrival of the cars was given to the defendant. While it is true that the plaintiff failed to allege that written notice was given, nevertheless H. A. Hoffman and J. P. Chapron, plaintiff’s witnesses, testified that notice of the arrival of the various cars on which demurrage was charged .was given to the consignee. Hoffman Testified from the original records, compiled in the ordinary course of business.

The defendant, on cross-examination, admitted that he was actually aware of the arrival of the ears and paid storage charges for part of the time during1 which they remained in New Orleans, and that the company’s agent was every day insisting' that delivery of the cars be accepted and that they be unloaded.

It further appears that defendant’s sole objection to paying the demurrage charges was that the demurrage and not the storage rate was. charged. In his letter to the carrier, defendant did not register any objection to the demurrage bills on the grounds of lack of proper notice of the arrival of the cars. It therefore appears that the defendant had not only notice but actual knowledge of the arrival of the ears, and hence we believe the second defense is not well founded. ■■

Passing to the third defense that demurrage was not due because the cars were not delivered and unloaded in accordance with the universal custom and practice and standing instructions of the consignee that the cars be unloaded in the railroad’s warehouses, it appears to us that as a matter of fact such a custom did not exist.

The practice of the railroad company in unloading the carload shipments, of hay in its warehouses was authorized by the provisions of Tariff No. 1-B, section C of item No. 7, rule No. 7, which was a reissue of an earlier tariff in identical terms, and reads:

“Cars containing hay arriving at New Orleans, which on account of crowded condition of railroad warehouses cannot be unloaded, will be placed on team tracks, subject to the following charges based cn the weight of the contents, after expiration of free time.”

This practice was further carried out under the provision of Freight Tariff No. 5691-A item No. 125, reading as follows:

“Item No. 125.
“Absorption of Charges.
“Loading and Unloading Carload Freight at New Orleans, Louisiana.
“Owing to the peculiar and congested conditions, existing at New Orleans, La., the provisions of the classification with respect to owners being required to load and unload all freight in carloads may be waived, as follows, viz: Carload shipments consigned to parties at New Orleans, La., for delivery at Mo. Pac. R. R. depots or warehouses, and carload, shipments originating at New Orleans, La., to be loaded in cars on Mo. Pac. R. R. loading ■tracks, the Mo. Pac. R. R. in order to expedite the releasing and handling of its equipment, reserves the right to load and unload such carload freight at its freight terminals in the City of New Orleans, La.
“This does not apply to shipments loaded or unloaded at Industry tracks.”

While it is true that defendant clearly established by the testimony of several witnesses that it was the universal practice of the hay dealers in New Orleans to give the railroad companies standing orders to unload the hay in the railroad companies’ warehouses, it is likewise clear that this method followed by the railroad companies was not required because of any obligation imposed by custom, but was the method expressly provided by the unambiguous provision of the tariff in force. • The delivery of the cars and unloading of •the hay having been done in accordance with the provisions of the tariff, it cannot be said that this, is a case where a custom or usage has arisen that might be regarded as creating an implied obligation between the contracting parties, modifying the formal or express contract between them.

For these reasons we arg of the opinion that the third defense ■ must likewise fail.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that -there be judgment in favor of Andrew W. Mellon, Director General of Railroads and Agent of the United States of America, plaintiff herein, "and against Joseph V. Ferguson, defendant herein, in the full sum of $878.59, with interest at the rate of 5 per cent per annum on the following amounts from the following dates: .

$ 3.09 from April 18, 1918

61.80 from May 21, 1918

185.40 from May 25, 1918

30.90 from May 8, 1918

133.90 from May 18, 1918

185.40 from May 27, 1918

278.10 from June 5, 1918

Defendant to pay the costs of both courts.

JANVIER, J., having been of counsel, takes no part.


text:
    No. 13,617
    Orleans
    INDEPENDENT OIL REFINING CO. v. LUEDERS
    (May 11, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)

      Henry -W. Robinson, Waverly A. Henning and Henry M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Julius Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

A Chevrolet coupe belonging to plaintiff partnership was damaged as the result of being run into by a truck owned and operated by defendant.

The Chevrolet was proceeding down North Prieur street towards Esplanade avenue and the truck was on its way in Esplanade avenue towards the Mississippi river. When the Chevrolet, which was proceeding to the right of the street on which it was being driven, had reached a point about 20 or 25 feet from Esplanade avenue, the truck dashed around the corner and crashed into it.

Defendant .contends that the accident, from his point of view, was unavoidable for the reason that, as he was proceeding in Esplanade avenue,- a sudden emergency was created 'by the negligent act of the driver of a third car, a Ford, which attempted, to cross Esplanade avenue directly in his path, and that, in order to avoid striking the Ford, he hurriedly swerved his car to the right, hoping to be able to turn into North Prieur street and aveyt a collision with the Ford.

It is quite true that it has often been held that one who acts in a sudden emergency may not be responsible for the results of his act and cannot be expected to exercise the discretion and judgment which would be exhibited by an ordinarily prudent person acting with deliberation. Buckner v. Powers, 12 La. App. 630, 125 So. 744; Kennedy v. Opdenweyer, 11 La. App. 532, 121 So. 636, 123 So. 906.

But it is also true that the doctrine to which we have just referred is not available to one who himself contributes, to the creation of the sudden emergency, nor can it be taken advantage of by one who, though he may not have contributed to the creation of the emergency, could have avoided the unfortunate result had he himself been acting carefully. Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194; Dill v. Colley, 3 La. App. 305; Berry (6th Ed.) sec. 229; Blashfield, page 277; Huddy (8th Ed.) see. 447; Anderson v. Davis, 151 Minn. 454, 187 N. W. 224; Simonson v. Huff, 124 Wash. 549, 215 P. 49.

Here, it is very apparent that the speed of defendant’s truck was excessive. The skid marks on the pavement and the distance the truck ran after the danger became apparent show conclusively that, had the car been operated at a reasonable speed, even after the emergency came into existence, it could have been stopped before striking plaintiff’s car.

The driver of plaintiff’s car was in no way at fault, and, therefore, whatever may have been the fault of the driver of the Ford which caused defendant to swerve from his course, he (defendant)” was negligent in operating his car at too high a speed. He certainly could, have avoided striking plaintiff’s car even in the emergency, had his speed been within legal and reasonable limits. He is, therefore, liable for the resulting damages.

The' amount claimed is $264, of which $88 represents the sum paid for the rental of another car used in the business of plaintiff partnership.- While there is some controversy over the question of whether or not all the repairs were necessitated by the collision, the evidence on this point preponderates in support of plaintiff’s contention. , . .

The item of $88 to which we have referred brings forth the contention on the part of defendant that a large part thereof should not be charged to him. He argues that there was undue delay in making the repairs to the car, and that had they been promptly made the amount paid for rental of another car would have been very much reduced. It appears that the agency to which the car was turned over for repairs was short of painters, and that a few days’ additional delay resulted from this fact. This is unfortunate, of course, but we do not believe that plaintiff should be required to suffer this loss. The initial damage was caused by defendant, and (plaintiff delivered his car to a reputable repairman for all necessary repairs. This is all that he could, do, particularly as it is shown that he was constantly calling upon the repairman to complete the work.

In another particular, defendant complains of delay. That is with regard to the fact that plaintiff did not send the car to the repairman immediately after the accident. Plaintiff’s explanation of this is that defendant was called upon to examine the car and convince himself as to the extent of the damage, and that for a few days the oar was held in its damaged condition to permit of that inspection. While there is " no requirement that an automobile damaged in an accident shall be held for the inspection of the other party, nevertheless, if it is held for a day or so, we believe that such delay is reasonable, and that the expense of obtaining another car for use during that time can be charged properly to defendant.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of plaintiff and against defendant in the full sum of $264, with legal interest from judicial demand and for all costs.


text:
    No. 13,637
    Orleans
    ROBERT HAYNE TARRANT, INC., v. MAX BARNETT FURNITURE CO., INC.
    (May 25, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellee.

      Merrick, Schwarz, Guste, Barnett & Redmann, of NewoOrleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff instituted this suit to recover the sum of $200 alleged to be due under a written contract for advertising. The defense is that the employee of the defendant was without authority to sign the contract and bind defendant.

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

The contract sued upon reads as follows:

“R. H. Tarrant. New Orleans, Nov. 15/29
“You are hereby authorized to insert advertisement of Max Barnett Furniture Co. in programs of Season 1929/1930 to occupy space of whole page for which we agree to pay the sum of Forty 00/100 Dollars, for each attraction payable immediately after each publication.
“(Signed) Barnett Furniture Co.
$ — -. Patterson.’’

It is conceded that defendant’s employee signed the agreement and that plaintiff inserted certain advertisements in programs covering certain musical concerts held in this city on the following dates: December 5, 1929; January 17, 1930; January 30, 1930; April 7, 1930; and April 20, 1930.

The sole witness for plaintiff was Robert Hayne Tarrant, who testified that he went to defendant’s place of business and saw Mr. Patterson, whom he considered and knew as advertising manager, and requested that. he sign the above contract, which he did; that after each insertion of the advertisement an invoice together with a copy of the program containing the advertisement was sent to defendant.

The evidence of defendant consisted of the testimony of the president, vice-president, bookkeeper, and other employees of defendant. This evidence shows that Barnett Furniture Company is a retail furniture dealer on a large scale in this city and advertises extensively. Mr. Patterson was employed by defendant in the capacity of an “ad writer and director of art work” or “ad man.” His duties consisted of writing copies of the advertisements and directing the art work. The several departments of Barnett Furniture Company furnished information with reference to advertisements of their respective departments, and, after the ads were written and the art work compiled by Patterson, the whole matter was submitted to Max Barnett, president, in order that it might be determined if the advertisement was desirable and how much it would cost, and, if found satisfactory, Max Barnett would sign a contract covering same. The evidence clearly establishes that Mr. Patterson was not directly or indirectly authorized to sign such contracts.

But counsel for plaintiff strenuously argues that defendant is estopped .to deny the authority of the agent who signed the contract because it knew or should have known that the contract had been signed and that the advertisements were being run in accordance therewith, and consequently, having accepted the benefit of plaintiff’s advertising, defendant ratified its agent’s! act.

On this issue we observe that Mr. Tar-rant testified that he left a copy of the contract with Mr. Patterson, and that he mailed a bill after each concert, together with a copy of the program, to defendant. Defendant’s bookkeeper testified that all mail coming into defendant’s place of "business is placed on his desk and assorted by a young lady, and that these bills were never received. Both the president and vice-president general manager testified that they had never heard of the contract and had. no knowledge whatsoever of the advertisements being run; that their first information as to the contract and ads was on April 21, 1931, when defendant received an invoice in the sum of $200 and copy of the last program of April 20. Max Barnett, president, immediately wrote plaintiff a letter denying that defendant had ordered such advertisements and declining to pay the bill. Defendant further showed that while “ad men’’ or “ad writers,” such as Patterson was, are regarded as advertising managers, newspaper advertising men do not regard such par Lies as authorized to sign contracts. The record also shows that on a former occasion Mr. Tarrant had spoken to Max Barnett about advertising “stunts,” but that Mr. Barnett had declined to enter into such a proposition. This would indicate to our mind that, while Mr. Tarrant regarded Mr. Patterson as the advertising manager, ar the same time he appreciated the fact that the company, in order to bind itself to a contract, would have to appear through one of its officers.

A- further significant fact is that the advertisement which was published in the programs was. for the sale of certain articles and instruments, the agency of which defendant had given up several • months prior to the date of the signing of the alleged contract. Therefore the advertising was worthless, because, even if some one were attracted by it and called to purchase the merchandise, defendant would not have been in a position to have sold it to them.

Mr. Patterson died after the suit was filed, but unfortunately his testimony was not taken. This circumstance, together with the -fact that he remained in the employ of defendant until his death, some time before the case wa» tried, does not in our opinion outweigh the positive testimony of defendant’s, witnesses that Mir. Patterson was not authorized expressly or impliedly to sign the company’s name to the contract, that Patterson was not held out as having such authority, and that they did not know that he had done so until after all the advertisements were run and the company had been billed for it.

The rule as to retention of benefits by the principal in order, to bind him for the unauthorized act of his. agent is announced in the case of Succession of Gilmore, 154 La. 105, 97 So. 330, 331, as follows:

“An unauthorized contract of an agent is ratified by the principal, who, when notified of such contract, does not immediately repudiate it, but accepts the benefit arising under such contract. Ward v. Warfield, 3 La. Ann. 468; Flower v. Downs, 6 La. Ann. 540; Szymanski v. Plassan, 20 La. Ann. 92, 96 Am. Dec. 382; Mangum v. Bell, 20 La. Ann. 215; R. C. C. art. 3010.”

In the instant ease, defendant, upon learning of Patterson’s action, immediately notified plaintiff that Patterson was without authority to sign the company’s name and bind it.

We are unable to agree with our learned brother below that defendant was estopped to deny that its employee was unauthorized to sign the contract or that it ratified and approved his action.

For the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s suit at its cost.