text:
    No. --
    First Circuit
    HARGROVE v. O’BANION CLARK, Third Opponnt
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing refused.

      (Syllabus by the Editor.)
    1. Louisiana Digest — Mortgage—Par. 107, 115, 142.
    Every portion of the property mortgaged is liable for every portion of the debt. Therefore, the mortgagee can release any portion of the property from the operation of the mortgage.
    2. Louisiana Digest — Mortgage—Par. 109, 115, 141.
    Where a second mortgage is placed on the part of the land mortgaged to the first mortgagee, the holder of the second mortgage cannot object to the first mortgagee executing his mortgage against that part of the property on which there is a second mortgage and releasing the balance.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Hargrove against O’Banion, Ed L. Clark, intervenor and third opponent.
    There was judgment for intervenor and plaintiff appealed.
    Judgment reversed and rendered for plaintiff against defendant.
    Mark C. Pickerel, of O'akdale, attorney for plaintiff, appellant.
    S. W. Gardiner, of Ville Platte, attorney for intervenor, appellee.
   MOUTON, J.

J. D. O’Banion executed a special mortgage with the pact de non aliendo in favor of M. V. Hargrove on January 31, 1921, on the following described property to secure the payment of $400.00, represented by four promissory notes, viz.: All of the NE% of the NW% and the SE% of the. NW % of Section ,22, containing eighty acres of land. This mortgage was recorded on February 7, 1921. On March 26, 1921, O’Banion gave a second mortgage in favor of Ed L. Clark on 40 acres of the land above described, that is, on the NE% of the NW14 thereof. The mortgage in favor of Clark was- »e-corded on March 26, 1921, over a month after the registry of the mortgage he had given to M. V. Hargrove. W. R. Hargrove, as transferee of the-‘notes, first obtained the issuance of executory proceedings under which the whole tract of 80 acres were seized under his mortgage. He thereafter cancelled his mortgage on 40 acres of the land, and restricted the seizure to the NE% of the NW14 upon which Ed L. Clark had a junior mortgage, an herein-above stated.

Ed L. Clark came into the case by way of third opposition, claiming that the mortgage held by plaintiff, being indivisible, he should be compelled to sell the 80 acres for the satisfaction of mortgage: that he had no right to release 40 acres of the land from the operation of his mortgage and seizure, and restrict the sale to the other forty acres on which Clark, opponent, held a second mortgage. That in thus restricting the £lale to the 40 acres upon which Clark had a junior mortgage, plaintiff is attempting to “cheat and defeat him of his just rights”. The lower court took that view of the case and held that plaintiff had no right to make a partial cancellation of his mortgage, and restrict the sale to the 40 acres to which the mortgage had been confined. The court said this was a fraud on opponent’s rights.

Plaintiff appe'als.

When Clark took a mortgage on the 40-acre tract described an the NE% of the NW% of 80-acre tract, the public records showed that the mortgage of .the plaintiff covered that tract. He knew then that he had, by virtue of his mortgage, the rights of a second mortgagee only. He was not granted any rights whatsoever on the other forty acres upon which plaintiff’s mortgage also rested. Plaintiff said in his testimony that he thought the 40 acres to which he had restricted the enforcement of his mortgage were fully worth the amount of hisi note, and that he did not want defendant to lose his whole place. As intervenor, Clark had no rights whatsoever on the 40 acres upon which '-he release was made; plaintiff, instead' of releasing it, could have made a donation to Clark of his mortgage on that tract. In releasing it from the mortgage plaintiff in no way infringed on the rights of Clark as he had none on that tract by privity of contract with plaintiff or otherwise.

In Burgess vs. Gordy, 32 La. Ann. 1296, a special mortgage had been given on a plantation lying on both sides of Bayou Teche. The whole plantation was seized under the mortgage. That portion of the plantation lying on the east side of the Teche was released from the seizure and 'the execution of the writ was confined to the other portion of the plantation. A third possessor of a portion of the plantation in that case contended that, as the mortgage rested on the, whole property, plaintiff could not sell a portion to pay the entire mortgage debt', and that the whole property should contribute to' the payment of the debt. This is substantially the contention here, with the exception that here the intervenor alleges that by confining the execution of the writ to the 40 acres on which he has a second mortgage, plaintiff has cheated and defrauded him of his rights. The court in the case above cited, and also in Powell vs. Hayes, 31 La. Ann. 789, held that each and every portion of - the property mortgaged is liable for each and every portion of the debt. The court said that plaintiff had the perfect' right to release a portion of the property from the operation of the mortgage, and to have the other portion sold to satisfy the whole debt, and that the third possessor could not urge the plea of discussion against a creditor holding a special mortgage affected with the clause of non alienation. This is precisely the case here with the exception that intervenor is not a third possessor, and has injected into the case a charge of fraud bedause of the restriction of the Writ to the tract upon Which he is a junior mortgagee. The lower court, it seems, took that view of the case and held that intervenor had been defrauded of his rights.

It is clear from the doctrine recognized in the decisions above cited that plaintiff had the right to subject the portion of the land upon which intervenor had a mortgage to the payment of the entire mortgage. As intervenor had a second mortgage on that portion, it is manifest that his rights were subordinate to those of plaintiff, and that the only right he could claim was to be paid, if any proceeds were left frpm the tale of that part of the land after plaintiff’s mortgage had been satisfied. He had no rights whatsoever on the portion that had been released, and could not possibly be cheated or defrauded of his rights thereon, as was held below.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed; and it is further ordered, adjudged and decreed that plaintiff have jugment against defendant, ordering the sale of the NE% of NWÍ4, Section 22, T'ownship 3 South, Range 2 We:,t, La. Mer., to pay the sum of four hundred dollars, with eight per cent per annum interest from the maturity of each note representing said obligation, with ten per cent thereon as attorney’s fees; that plaintiff be paid from the proceeds of sale of said property by preference and priority over other claimants; that the defendant pay the cost of the main demand, and that intervenor, Ed L. Clark, pay all the cost of his intervention and third opposition.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 10,752
    Orleans
    JAMES v. COMMUNITY BURIAL SERVICE CORP., Appellant
    (March 14, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 106.
    Where a life insurance company, haying knowledge of factsi giving it a contractual right to avoid liability as insurer, accepts a, premium or assessment, it thereby waives the right to forfeiture.
    Appeal from Section “A”, First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Mrs. Hester James against Community Burial Service Corporation.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Norman & Schwartz, of New Orleans, attorneys for plaintiff, appellee.
    Van Burén Harris, of NeW Orleans, attorney for defendant, appellant.
   JONES, J.

Thici is a suit upon a burial insurance policy for two hundred and twenty-five ($225.00) dollars, consisting of two items, as follows:

Funeral benefit ___________________$175.00

Death benefit____________________________ 50.00

Defendant answered, denying liability, because the conditions' of the policy had not been complied with.

It is admitted by both parties that the only question before the court is whether the fact that the decedent died and was buried out of the parish of Orleans invalidates the policy, which contains the following pro virion:

“Should death of the insured occur outside the city of New Orleans, La., this company will not be responsible fot any expenses incurred.”

We agree with the lower judge in thinking that the above section of the policy was waived because the record contains the application card of the deceased for his policy, arid this shows plainly that the agent wrote his addrecs as Plaquemines Parish and the company made a notation thereon in typewriting of his address as Plaquemines Parish. On this point see Gitz Sash Factory vs. Union Insurance Co., Soc. of Canton, 160 La. 381, 107 South. 232, where the Supreme Court held acts of officers and agents of insurance company within apparent scope of their powers are binding on the company, and it may be estopped by their conduct and declaration.

Also Lawrence vs. Penn. Mutual Life Insurance Co., 113 La. 87, 36 South. 898:

“Where a life insurance company has knowledge of facts giving it a contractual right to avoid liability as insurer, under a policy duly issued, accepts a premium or assessment, it thereby waives the right to forfeitgure.”

For above reasons the judgment is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    DYER v. ALEXANDER
    (Dec. 7, 1926. Opinion and Decree.)
    (Jan. 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Roads, Bridges and Ferries — Par. 10, 17; Pleading — Par. 62.
    In view of Revised Statutes 3380, a petition which states that the defendant búilt a fence across the road which plaintiff uses along the bank of the river going to and from his property, states a cause of action.
    2. Louisiana Digest — Roads, Bridges and Ferries — Par. 10; Parties, Par. 11; Pleading — Par. 118.
    Where the proof shows that a road is closed by the action of the road board and the police jury and not by the defendants the right of action of a property owners to have the road opened is against them.
    Appeal from the Parish of Ascension. Hon. Sam LeBlanc, Judge.
    Action by T. Walter Dyer against Richard Alexander, et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    C. V. St. Amant, of Donaldsonville, attorney for plaintiff, appellant.
    C. G. Weber, of Donaldsonville, attorney for defendants, appellees. .
   MOUTON, J.

The farm of plaintiff is situated on the north side of New River, and the property of defendants on the south ' bank. This river is not navigable. Plaintiff alleges that a public road runs along the south side of the river, and that defendants have without authority built a fence across this road. He is suing for the removal of this fence. Under such allegations, which must be taken as true under the exception of no cause of action filed by defendants, plaintiff had a right of action. R. S. 3880, 563; Mayor of New Orleans vs. Gravier, 11 M. (O. S.) 620;, Shepherd vs. Third Mun. of City of New Orleans, 6 R. 349; Nicolopoule vs. His Creditors, 37 La. Ann. 475; Porche vs. Barrow, 134 La. 1090, 64 So. 918.

The first question presented for decision is as to whether or not there was a public road where plaintiff contends the fence was erected; and, second, was the obstruction placed there by defendants?

Plaintiff appeals from a judgment which resolves these questions adversely to his contention. The proof shows that for a number of years prior to the time the fence was built across the road, that this road was along the south side of the New River and had been generally used by the traveling public. This right of passage so enjoyed by the public was a mere discontinuous servitude, C. C. 727, and which could be established by title only, and could not be acquired by possession. C. C. 766. No dedication can be inferred by user alone, Beck vs. Flectas, 37 La. Ann. 497.

The record is barren of any proof that this road was ever declared a public highway by the police jury of the Parish of Ascension by which title could have been acquired thereto by the prescription of ten years under the provisions of Act 25 of 1904. There is also no proof to show that it had been worked for a period of three years by authority of the police jury of Ascension so as to make it a public road under the Act No. 220, 1914. As it was not a public road even if defendants had built the fence complained of, plaintiff could not have had a cause of action against them. It is, however, clearly shown that the road in question. was ordered closed by the supervising board of the Fourth Road District of the Parish of Ascension; that the chairman of the board, acting in furtherance of this order, directed Ferris Gore to erect the fence across the road.

The proof shows that Gore built the fence in obedience to these instructions and expended about fourteen dollars which under his order was paid by the treasurer of the Police Jury of Ascension. It is true one of the defendants indicated to Gore the line where the fence should be built, but this did not make him responsible for thus obstructing the road. The closing of the road was the act of the road board and of the Police Jury against which plaintiff should bring his suit if these public bodies can be held legally responsible.


author: LECHE, J.

text:
    No. -
    First Circuit
    STANLEY ET AL. v. SNELL
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Taxation—Par. 381.
    A tax title pleaded as a defense in a petitory action, is open to all objections on the part of the plaintiff, such as defective description, just as if such objections had been specially pleaded in the petition.
    2. Louisiana Digest — Taxation—Par. 358, 367.
    The description in a tax deed must be sufficiently explicit to identify the property but if it does not identify it, it cannot serve as a basis of title.
    3. Louisiana Digest — Taxation—Par. 363, 382.
    Competent proof alliunde may be supplied to offset a defect in the description in a tax title provided the description reasonably identifies the property.
    Appeal from the Parish .of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Martha M. Stanley et al., against O. C. Snell.
    There was judgment for plaintiff and fendant, appellant.
    Judgment affirmed.
    A. W. Spiller, of Hammond, attorney for plaintiff, appellee.
    Ellis & Ellis, of Amite, attorneys for defendant, appellant.
   LECHE, J.

Ida Carter Prink, or Ida Prink, or Ida Prink Carter, conceded to be the same person, was the owner by title record, of the following described property, viz.: “A certain lot or parcel of land situated in the Parish of Tangipahoa, State of Louisiana, and described as follows: One lot 50x150 feet located in the southeast corner of the following described property: Beginning at the northeast corner of land of Myles Preeman, measuring north 36 deg. west to land of Green Scott’s 4 and 50/100 chains; thence west 5 and 12/100 chains; thence south 36 deg. east 5 and 96/100 chains; thence north 54 deg. east to the point of beginning, containing two and three quarters (2%) acres and is a portion of the southwest quarter of section 26, township six south of range seven east, as per survey made by Thos. Gahary, parish surveyor.”

The property as thus described was acquired by plaintiff through their author and ancestor from Ida Prink Carter, November 6, 1922.

On July 28, 1923, the tax collector of the City of Hammond, sold for unpaid city taxes for the year 1922, at public auction unto O. C. Snell, the defendant, property described as follows: “That certain parcel of land, half acre in the northwest quarter of southeast quarter of southwest quarter of section 26, township 6 south, range 7 east, with all improvements” seized for the payment of taxes due by Ida Carter.

Plaintiff in this suit, widow in community of W. G. Stanley and tutrix of her minor children born of her marriage with said Stanley, alleging the title of herself and her minor children to the property first herein described, charges that defendant O. C. Snell is in possession of the same through force and in bad faith; that Snell has rented the property to various tenants since the month of August, .1924. She then prays to be decreed and recognized as owner and for rent at the rate of eight dollars per month.

Defendant, in his answer, acknowledges possession and he pleads his ownership of the property as described in plaintiff’s petition, for having acquired the same at tax sale on July 28, 1923.

“Á tax title pleaded as a defense in a petitory action, is open to all objections on the part of the plaintiff, just as if such objections had been specially pleaded in the petition.” Willis vs. Ruddock Cypress Co., 108 La. 235, 32 So. 386.

Defendant’s tax deed seems on its face to conform to all legal requirements and the only objection thereto, urged by plaintiff, is that the description is fatally defective.

On the face of the titles of plaintiff and defendant, it is impossible to say whether they described the same property. The descriptions vary as to the quantity of land, the one says a lot-50x150 feet and the other says a half acre. A half acre according to our understanding, is half of a square of ground, all of whose sides measures 208 to 210 feet. It is then apparent that a half acre is more than twice the size of a lot measuring 50x150 feet. Although both of the descriptions say that the property is in section 26, township 6 south, range 7 east, plaintiff’s title says it is in the southeast corner of a certain tract described as being in the southwest quarter, and the tax deed says it is in the northwest quarter of the southeast quarter of the southwest quarter of that section.

C. M. Moore, a surveyor, testifying as an expert, says that the same property cannot be included in both of the descriptions. He further says that plaintiff’s title is described strictly in accordance with government surveys. He also says that the descriptions in the assessment roll and in the tax deed, do not correspond, but that the description in the tax roll and in plaintiff’s title may. cover the same property.

The jurisprudence in regard to this subject, is that a description in a tax deed, in order to constitute a title translative of property, must be sufficiently explicit to identify the property. Board of Com’rs, Fifth Louisiana Levee District vs. Concordia Land & Timber Co., 141 La. 247, 74 So. 921; Baldwin Lumber Co. vs. Dalferes, 138 La. 525, 70 So. 493; Schwartzenberg vs. Schwartzenberg, 138 La. 294, 70 So. 230. A description on the other hand, which does not identify, cannot serve as a basis of title in a tax sale. Amrhein vs. Nylka Land Co., 137 La. 570, 68 So. 957; Quaker Realty Co. vs. Guibilati, 136 La. 52, 66 So. 394.

It has also been held by the court that where a description is defective, competent proof aliunde may be supplied to offset the defect. Willis vs. Ruddock Cypress Co., 108. La. 255, 32 So. 386; Schwartzenberg vs. Schwartzenberg, 138 La. 284, 70 So. 230. But even in these cases, the description must be sufficient to reasonably identify the property.

We do not believe that the description in the tax deed of defendant is sufficient even to reasonably identify the property and therefore it cannot serve as a basis for his claim of ownership. Defendant showed that the only property which Ida Carter Frink owned in that neighborhood or community, was that which she acquired at tax sale, but that of itself is not sufficient to identify the property. The court has never gone so far as to hold that a tax sale of the property of a taxpayer, because he owns no other property in the neighborhood or community, would convey title, without containing any description, simply because such taxpayer only owned that single property.

The trial judge rendered judgment in favor of plaintiff, and that judgment is therefore affirmed.


text:
    No. --
    First Circuit
    REES v. BARRAS
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus hy the Editor.)
    1. Louisiana Digest — Libel and Slander— Par. 17, 41, 66.
    Uncomplimentary remarks made by parties to each other such as “coquine et pas bonne” and “un beau coco”, under stress of great excitement are not sufficient to cause any damages for slander.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of St. Martin. Hon. James D. Simon, Judge.
    Action by Mrs. Paul Rees against Ben Barras.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Emile Vuillemot, of New Iberia, attorney for plaintiff, appellant.
    Yoorheis & Labbe, of St. Martinville, attorneys for defendant, appellee.
   LECHE, J.

The present action is one to recover damages for slander. The District Court rejected plaintiff’s demand and she has appealed.

The plaintiff is the widow of Paul Rees and defendant is the husband of Paul Rees’ sister, so that plaintiff is the sister-in-law of defendant’s wife, and defendant is the brother-in-law of the late husband of plaintiff.

David Rees, late father of Paul Rees and of Mrs. Barras, had owned property in the village of Breaux Bridge, part of which was acquired by Paul Rees, consisting of a lot of ground upon which the plaintiff resided at the time the events which caused this litigation took place. There were some differences between the plaintiff and the defendant as to the boundary line of the property of the late Paul Rees and the proper location of a fence which separates that lot from the rest of the property which once belonged to the estate of the late David Rees and in which defendant is interested. Whilst it does not appear that there ever had been any open rupture or difficulty between the parties, it is evident notwithstanding their disclaimers as witnesses, that both sides had nursed resentment and bitter feeling on account of a wrong, whether fanciful or real it does not matter.

It was while the plaintiff and the defendant were in this frame of mind, on July 23, 1925, that according to the testimony of plaintiff,- Ben Barnes came to the side fence of her premises, called and beckoned to her while she was in her yard, and after engaging in some conversation which is not made clear or very intelligible, told her that she wanted to steal what she had and that she was nothing but a “coquine et pas bonne”.

Plaintiff further says that her daughter, Mrs. Eligie LeBlanc, who was present, then told defendant that he came there when the men were away, and that defendant then said: “The men who lives here are ‘beaux cocos’.” Defendant’s version of the occurrence, is that on the morning of that same day, his calf was in plaintiff’s yard and had been cruelly treated; he acknowledges going to the side fence of plaintiff’s premises, and engaging in conversation with her about the manner she had treated his calf. He says that approbrious epithets were applied to him, that both plaintiff and her daughter were exceedingly excited, that both women called him a thief and that he did tell them, when they said that George, a young man, the son of plaintiff, was away and could not defend them, that George himself was a “beau coco”.

The French word “coquine” means thief, and is often used in a jocular way in the sense of sly or cunning; “pas bonne” means not good and “coco” means a cocoanut, is mostly used as French slang, at least in the community where the writer of this opinion lives, to denote contempt.

“Un beau ' coco” in this part of the state means “a fine fellow” in a reproachful sense. The record is not clear as to what the parties meant in the use of these words.

One thing however, is perfectly evident, that the uncomplimentary remarks made by these parties to each other, were mutual, were made under the stress of great excitement and did not lower them in the esteem and consideration of the people of the community.

The plaintiff and defendant are conceded to be persons of good repute and it is overwhelmingly shown that their unfortunate quarrel has not hurt them in the least in the esteem of their neighbors and acquaintances.

Defendant had no right under the circumstances, knowing that an interview with plaintiff meant a quarrel, to go to plaintiff’s premises and engage in reproachful remarks to her. But this does not entitle plaintiff to punitory damages. If any punishment was due to him, the criminal proceeding instituted against him was designed for that purpose.

We do not believe that plaintiff has suffered any damage.


text:
    No. -
    First Circuit
    AMERICAN COTTON OIL CO. v. BOQUET AND JACUZZO
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Agriculture—Par. 18, 19.
    The privilege granted by Article 3217 of the Civil Code given to the' lender for money advanced on the “crops of the year and the proceeds thereof” does not attach to money received by another lender from the purchaser of the crop in payment of the debt.
    Appeal from the Parish of Terrebonne. Hon. H. M. Wallis, Jr., Judge ad hoc.
    Action by American Cotton Oil Company against Adam Boquet and Jos. Jacuzzo.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Butler & Wurzlow, of Houma, and C. F. Fletchinger, of New Orleans, attorneys for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendants, appellees.
    ELLIOTT, J. Dissents.
   LECHE, J.

Adam Boquet in order to cultivate his Front Lawn plantation, situated in the Parish of Terrebonne, and to plant and grow thereon during the year 1922, crops of sugar cane and corn, obtained advances in money from Jos. Jacuzzo. He first borrowed in January, 1922, by written contract, eleven thousand, five hundred dollars, then about September, being in need of more funds to complete the cultivation and harvesting of his crops, he borrowed in the same manner from Jacuzzp, the further sum of five thousand dollars.

In the mean time, he bought from plaintiff, in the month of April, 1922, for the purpose also of growing the same crops, fertilizer, for the price of some $1719.00, of which amount he still owes plaintiff a little over twelve hundred dollars.

These three contracts, two in favor of Jacuzzo and one in favor of plaintiff, all recognized the lien and privilege and right of pledge accorded by law and were seasonably recorded.

When the crop was harvested, it was sold and delivered by Boquet to the Ash-land Planting and Manufacturing Company. The Ashland Company paid for the same by checks in favor of Boquet on the Terebonne Trust & Savings Bank of Houma. The bank upon the instruction of Boquet and Jacuzzo, credited the money to the account of Jacuzzo.

In the present suit, plaintiff prays for judgment for the balance due to it for fertilizer, against both Boquet and Jacuzzo. Boquet does not contest the claim, and the issue to be decided, is whether Jacuzzo is responsible to plaintiff and should be held personally liable for the claim.

The total amount agreed to be advanced by Jacuzzo was $16,500.00, but in point of fact, Jacuzzo advanced $20,000.00. The proceeds of the crop amounted to $19,965.00 and Jacuzzo testifies that Boquet still owes him a balance of $35.00.

Plaintiff in its petition, in substance alleges, as we understand the pleadings, that Jacuzzo is personally responsible for the amount of its claim, on two grounds: First, that he and Boquet fraudulently conspired to deprive it of the benefit of its privilege and pledge on the crop, and second, that the price paid for the crop was affected with its privilege when turned over to him by Boquet, and that by taking these funds, Jacuzzo became personally responsible for the payment of its claim.

The first charge, that Jacuzzo had committed a quasi offense, and is responsible as a wrong doer, is not supported by any proof and is not presently urged and insisted upon in this court, so that the sole question presented to us for decision, is whether Jacuzzo by accepting in payment of his advances to Boquet, the money which the Ashland Planting Company paid to Boquet as the purchase price of the crop, made himself personally responsible and liable to plaintiff for the amount due by Boquet on its fertilizer bill.

One of the difficulties that always presents itself in such cases as the present one,' arises from the construction or meaning of the word “proceeds” as used in Article • 3217 C. C. The Code of 1825 in Article 3184, speaks of the privilege on the crop and of the privilege on the “product” of the crop in language literally translated from the French word “produit” of the original text. But by the Act 195, p. 351, of 1867, that word is for the first time translated into English by the use of the word “proceeds”. Article 3217 of the Code of 1870 is only a reproduction of the language used in the Act of 1867. If the lawmaker intended by the word “produit” to designate the things into which the crop is manufactured, such as sugar and molasses, produced from sugar cane, or meal and grits produced from corn, there would be something corporeal and tangible on which the privilege would continue to rest, but when the word “produit” is construed to mean the price in money for which the crop was sold, it is difficult to conceive how a privilege can be held to attach to money, which has no identity and which is only a representative of value. Of course one may have a privilege on a bag of money, as for its preservation, but then the privilege is on the specie itself and not on the money as such.

In the case of Weil & Co. vs. Kent, 52 La. Ann. 2148, 28 So. 295, the Supreme Court seems to hold that the price of the crop in money, continues to be affected with the factor’s privilege and the case of Hewett vs. Williams, 48 La. Ann. 690, 19 So. 604, is cited as authority for this doctrine. So that we must accept this construction and meaning of the word “proceeds”. But even if we adopt that meaning of the word “proceeds”, there is certainly no authority to sustain the proposition that a crop privilege on the money proceeds derived from the sale of the crop, follows these proceeds after they have gone out of the hands of the seller of the crop. Privileges on movables do not follow the movable after it has gone out of the hands of the original debtor. We see nothing in the case of American Cotton Oil vs. Spiller Sugar Co., 161 La. 446, 108 So. 878, conflicting with this well recognized legal principle. The court held in Loeb vs. Collier et al., 131 La. 377, 59 So. 816, that agricultural products, when sold by the purchaser of the crop, enter the channels of trade and. become merchandise free from any crop lien.

It must be observed that in the present case, the sugar cane was sold by Boquet to the Ashland Planting and Manufacturing Company. That the Ashland Company paid Boquet and that Boquet then turned over these money proceeds to Jacuzzo in satisfatcion of the advances made to him by Jacuzzo. Jacuzzo did not handle the crop, he neither purchased it nor sold it, but received the proceeds from Boquet, his debtor. We can’t conceive how it can reasonably be held that the money which Boquet paid to Jacuzzo, admitting it was the same money which Boquet received from the Ashland Company, came into the hands of Jacuzzo affected with a privilege in favor of plaintiff, and this is the only theory upon which plaintiff could hold Jacuzzo personally liable.

There were no contractual relations between plaintiff and Jacuzzo, nor was Jacuzzo guilty of any quasi offense against plaintiff and we are therefore of the opinino that Jacuzzo cannot be held personally liable to plaintiff.

It was held otherwise in Weil vs. Kent, 107 La. 322, 31 So. 761, but that decision has been expressly overruled. See Roger vs. Milliken & Farwell, 150 La. 657; Duke vs. Crawford, Jenkins & Booth, 150 La. 1023, 91 So. 143; Union Seed & Fertilizer Co. vs. J. Supple’s Sons Planting Co., 139 La. 692, 71 So. 949.

For these reasons, the judgment appealed from is affirmed.


text:
    No. --
    First Circuit
    SWINDLER v. T. & P. R. R. CO.
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 155, 160.
    The shipper is charged with knowledge of the existence of the schedules of freight rates and will be held to have contracted with reference to the rates therein fixed even though he may have been otherwise informed of á lower rate by officers or agents of the railroad company.
    Appeal from Pointe Coupee parish. Hon. Wm. C. Carruth, District Judge.
    Action by J. A. Swindler against Texas & Pacific Railway Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Bouanchaud & Kearney, of New Roads, attorneys for plaintiff, appellant.
    Albín Provosty, of New Roads, attorney for defendant, appellee.
   MOUTON, J.

In his reasons for judgment the trial judge says;

“Plaintiff was engaged in the purchasing and selling of Irish potatoes in large quantities, and shipped same from points in Pointe Coupee Parish, La., and from Addis, La., in carload lots, to his vendees at points in Texas.

“Before engaging in this line of business plaintiff inquired of the officials of the Texas & Pacific Railway Company (defendant herein) as to the freight rates that would be charged on shipments over defendant's lines to the points above referred to, and was informed that the tariff or freight rate would be 52 cents per 100 pounds. Plaintiff then inquired whether the same rate would apply to shipments over defendant company’s line to Anchorage, and thence over the lines of the N. O. T. & M. Ry. Co., and was informed by said officials that the same rates would apply to such shipments. Plaintiff then made a number of shipments via defendant’s line to Anchorage, and thence over the lines of the N. O. T. & M. Ry. Co., and was charged and compelled to pay therefore rates in excess of 52 cents per 100 pounds, which excess over the rate quoted, amounted to the sum of $318.61.”

The foregoing statement by the district judge embodies the complaint upon which plaintiff bases this demand, missed on an exception of no cause of action filed by defendant company.

Plaintiff alleges in his petition that he was misled by the officials of defendant company by their statements made to him that he would be charged upon his various shipments to different points in Texas, a freight rate of fifty-two cents per one hundred pounds; that he was actually charged freight rates in excess of fifty-two cents per hundred pounds, which had he known before he purchased his potatoes for shipment, he would have based his prices for the potatoes on the actual charges which were paid by him on his shipments, and not on the fifty-two cents per hundred pounds which had been quoted‘to him as the freight he would have to pay; and by purchasing at lower prices he could have allowed himself a fair margin of profit.

It would seem from the foregoing contention that plaintiff is attempting to recover $318.61 from defendant for profits of which he has' been deprived by the incorrect quotation of freight rates by the officials of the defendant company. The demand of the plaintiff is, however, when properly analyzed, grounded on the allegation that he is entitled to the recovery of that amount because it was charged to him in excess of the freight rates which had been quoted to him by the company. This is his real cause of complaint. In an indirect way he takes the position that if he had been informed prior to ,his purchases of the charges for freight which he had to pay for subsequently, he would have protected himself by purchasing his potatoes at prices lower than he ..paid for them. He gives that as a reason why he did not buy at more advantageous prices, but what he is asking is for the recovery of $318.61 as being in excess of the freight which had been quoted to him.

It' will be observed that the shipments made by plaintiff were interstate and fell under the rates fixed by the Interstate Commerce Commission. It is not alleged by plaintiff nor is it contended by him, that the freight rates which were actually charged were in excess of the rates fixed by the Interstate Commerce Commission. It may be that the officials of the company quoted wrong rates. If that was the case, it was simply a mistake on their part, but this could not affect the right of the company to collect the prescribed rates. This was so held in L. R. & N. Co. v,s. Holly, 127 La. 615, 53 So. 882. In that case, the court quoted the following from 158 U. A. 98:

“Shippers are presumed to know the existence of the schedules and the necessity of complying therewith and will be held to have contracted with reference to the rates fixed by the schedule, regardless of the terms of the conti'act. The schedule rate is payable, although the contract fixed a lower rate.”

It will be seen by the foregoing excerpt, that the shipper is charged with knowledge of-the existence of the schedules, and will be held to have contracted with reference to the rates therein fixed. It follows from that rule that plaintiff herein must be held to have so .contracted, and can not complain if he had to pay more than he had agreed to, as there is no contention on his part that the charges he paid were in excess of the rates established by the Interstate Commerce Commission. As plaintiff is not entitled to claim for the alleged excess in the charges for freight of which he complains, he can not recover on the theory--that had he known what the freight would actually be, he would have bought the potatoes at lower prices so as to have a safe margin for profits.

It is also very doubtful and problematical as to whether he could have made his purchases at prices that would have assured his profits to the' amount claimed. In addition, we may say, that a claim founded on such a contention, as was held by the trial judge is too remote, inconse-. quential and speculative to constitute a legal cause of action.


author: ELLIOTT, J.

text:
    No. 13,557
    First Circuit
    PITRE v. RELIABLE ELECTRIC CO.
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Evidence — Par. 343.
    The finding of facts by the trial court based on the credibility of the witnesses being clearly correct, is affirmed
    Appeal from the - District Court, Parish of Calcasieu. Hon. Thos. F. Porter, Jr., Judge.
    Action by Charles M. Pitre against Reliable Electric Company, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    M. R. Stewart, of Lake Charles, attorney for plaintiff, appellant.
    J. Sheldon Toomer, of Lake Charles, attorney for defendant, appellee.
   ELLIOTT, J.

Suit to recover wages claimed to be due under verbal contract.

Charles M. Pitre alleges that Reliable Electric Company is a commercial partnership composed of Frank Spengle'r, George W. Beaver and J. H. Rehmberg.

. That said firm and the members thereof are indebted unto him, in solido, in the sum of seven hundred and fifty dollars, with legal interest thereon from August 1, 1925, until paid, on account of work done for the firm under a verbal contract entered into on or about February 19, 1927, terminating August 1, 1925.

That his employment was for twenty-three weeks at fifty dollars per week; and said sum is the balance due him on account.

That the defendant firm was represented in said contract by J. H. Rehmberg, its manager.

The defendants deny the alleged indebtedness. They allege that their firm is an ordinary partnership. They admit that plaintiff was in the employ of their firm as an electrician, but allege that his employment was not by the week, but by the hour. That plaintiff has been paid for all his time, and that they owe him nothing.

The case depends on the credibility of the witnesses. The district judge placed his judgment rejecting plaintiff’s demand on that ground.

The plaintiff gives his testimony in a straightforward way, and is in like manner supported and corroborated by Mrs. Roessler, Lonnie Reese and Julien Lambert. The witness', Lambert, after giving his testimony in chief, was called in rebuttal, and corroborates plaintiff in that he was employed by the week. The testimony of Lambert and of Mrs. Roessler is strongly denied however, by Mr. Rehmberg.

Plaintiff’s allegations and testimony that he commenced work under his contract on February 1, 1925, and worked until August 1, 1925, á period of twenty-three weeks, at fifty dollars per week, is not in harmony with the method of receiving payment. He alleges that he was paid four hundred dollars on account, but from the start he was not paid by the week, but in small sums at irregular times. He alleges that was paid four hundred dollars, but the checks introduced in evidence showing payments made by him, total four hundred thirty-nine dollars thirty-nine cents. Only one of these checks is for fifty dollars. One of the defendants testified that this fifty-dollar check was not on account of his work, but was a loan to him which had not been returned.

If this fifty dollars, said by defendant to be a loan, be not taken into account, plaintiff has not received four hundred dollars on his time.

The record contains sixteen checks; one of them for fifty dollars, as above said. The other fifteen were payments made at irregular times and in sums ranging from five to forty-five dollars. The fifty-dollar check bears date July 11, 1925. Plaintiff’s explanation as to how this came to be done is not overlooked, and it may have been as he says it was; but all the same the showing does not indicate a weekly wage, but indicates instead payments for labor by the hour.

The plaintiff is shown to have no property. He was therefore dependent entirely on his labor for support. One of the witnesses speaks of plaintiff as having a family of children. It is seldom that a laborer with a family of children and no means but his labor, can afford to let his wages run behind to the extent of seven hundred fifty dolíais.

Plaintiff’s witnesses, three in number, apparently have no interest in the result. The defendants are interested in the result; they called some other witnesses, but the defense depends on the testimony of the defendants themselves.

We are unable to say with certianty, however, that the district judge reached a wrong conclusion. He had the witnesses before him and perhaps knew them.

Judgment affirmed. Plaintiff and appellant to pay the costs in both courts.


author: CLAIBORNE, J.

text:
    No. 10,601
    Orleans
    KAUFMAN v. GREGORY, Appellant
    (March 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Pleading—Par. 76, 81, 82.
    A plaintiff who claims insurance premiums from a solicitor without alleging the nature of the contract may after-wards file a supplemental petition setting forth a written contract.
    2. Louisiana Digest — Evidence—Par. 88, 347.
    Parol testimony to establish who the debtor is, is not testimony to prove the assumption of the debt of a third person.
    3. Louisiana Digest — Mandate—Par. 29, 31.
    The .solicitor of insurance policies in this case held personally liable for the payment of the premiums to the insurance agent.
    Appeal from First City Court. Hon. Yal. J. Stentz, Judge.
    Action by Harry Kaufman Co., Ltd., against R. J. Gregory.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Morris B. Redmond, of New Orleans, attorney for plaintiff, appellee.
    Harold A. Moise, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for the recovery of insurance premiums.

The plaintiff alleged that it was engaged in the insurance agency business in the City of New Orleans; that on various policies written by it in names and delivered to R. J. Gregory there are premiums due by him to plaintiff amounting to $204.61 for which plaintiff claims judgment against defendant.

Defendant denied the allegations of plaintiff’s petition.

Plaintiff filed a supplemental petition in which it set forth a written contract with the defendant under which he solicited insurance contract; that according to usage in the insurance business the defendant was personally liable for the premiums; that plaintiff paid to the insurance companies the premiums due in insurance contracts solicited by defendant, and then charged them to defendant’s personal account with his consent.

Defendant admitted the contract and admitted that in accordance • therewith he had placed insurance with the plaintiff but denied personal liability for the premiums; he averred that he merely acted as an agent to solicit business for the plaintiff at a fixed compensation, and that he was not a guarantor for the payment of the premiums.

There was judgment for the plaintiff, and the defendant has appealed.

The contract does not state who shall be personally liable for the premiums.

The defendant excepted to the supplemental petition upon the ground that it changed the substance of the demand by-alleging a written contract. The demand remained the same, namely, an amount of insurance premiums. The original petition did not mention the nature of the contract whether verbal or written. The allegation of a written contract did -not change the nature of the demand nor did it take defendant by surprise as the contract annexed to the supplemental petition was signed by the defendant, and admitted by him in his answer. Amendments in the interest of justice are favored by law. 6 La. Dig., p. 38.

The defendant also objected to parol testimony to prove the assumption by defendant of the debt of the assured. C. C. 2278.

Even had no objection been made the parol testimony could not have been considered if the debt was that of a third person. Article 2278 has been held to be a law of public order. Succession of Edwards, 34 La. Ann. 228, 232; Succession of Gaines, 45 La. Ann. 1426, 14 So. 251; Watson Bros. vs. Jones, 125 La. 251, 51 So. 187; Guillot vs. Guillot, 141 La. 81, 74 So. 702. As correctly ruled by the trial judge;

“Theer is no doubt that a debt of a third person must be in writing, but - we are now inquiring whether this is a debt of a third person.”

The sums sued for did not constitute the debt of a third person but was the original debt of the defendant himself. The plaintiff had no dealings with the assured and made no contract with him. It was the defendant’s business and not that of the plaintiff. We shall consider the parol evidence admitted to show whose debt it was, and not for the purpose of establishing the promise to pay the debt of another.

We have read" the contract sued on and all the testimony adduced on the trial' of the case. Nothing is said in the contract concerning the liability for the premiums sued on. But the plaintiff swears, and in that he is supported by the testimony of another solicitor in their employ for eight years, and by the testimony of their secretary since 1919, that in .their business and according to' the usage and custom of all other persons in the same business the solicitor is charged with, and is responsible for, the premiums after the expiration of sixty days from the date of the policy, within which time the solicitor may cancel the policy without liability on his part. ■ Defendant had been in plaintiff’s employ first as agent and subsequently as solicitor for four or five years, and had . been in the insurance business for 15 or 17 years and was presumed to know what the custom was, or to be able to establish by others what that custom was in the business. Although he denies that he was liable for the premiums or that the custom testified to by plaintiff prevailed, he. did not. produce a single witness to establish the custom or to contradict plaintiff’s testimony-or • that of his two witnesses concerning that custom.

. We must therefore hold that the custom was that testified to by plaintiff’s witnesses and that defendant was liable for the premiums individually insofar as the plaintiff was concerned, and that therefore the debt for the premiums, as regards the plaintiff, was an individual debt of the defendant to the plaintiff and not a debt of the assured.

This whole question was examined by us in the case of the same plaintiff vs. Mahen, 2 La. App. 354, and a second examination ' of the issues involved has satisfied us that our previous opinion was correct.


text:
    No. 10,771
    Orleans
    CUMMINGS v. COBB
    (March 14, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 98, 100.
    The vendor who is himself unable to convey title is in no position to resist the suit of the .purchaser for the return of a deposit made to bind the sale.
    , Appeal from the First City Court, Division “B". Hon. Val J. Stentz, Judge.
    Action by Neil A. Cummings against Albert H. Cobb.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. P. Dentsch, of New Orleans, attorney for plaintiff, appellee.
    P. E. Edrington, Jr., of New Orleans, attorney for defendant, appellant.
   OPINION

JONES, J.

This is a suit for a return of a cash deposit of two hundred and forty dollars ($240.00) made by plaintiff as prospective purchaser of certain real estate.

. Plaintiff alleges that he signed on October 19, 1925, the contract to purchase the property within forty-five days from date for twenty-four hundred dollars ($2400.00) and deposited on that day the amount claimed; that defendant failed to deliver or tender title within the time allowed..

Defendant filed exception of no cause of action and [prematurity, the latter on the ground that plaintiff could not sue for return of deposit because he had failed to tender the purchase price.

Both exceptions were properly overruled.

See Noe vs. Taylor, 11 La. 551.

Rucher vs. Liddell, 5 La. Ann. 577.

Defendant answered, admitting the contract and the deposit and averred that he delivered deeds to the property on October 21, 1925, to plaintiff’s agent; that he wrote this agent on November 22, otating that the sale should be passed before December 4, 1925; that after this time plaintiff stated to defendant that he was willing to forfeit the deposit because he did not have the money.

The only documents in the record are the contract of sale for the property, described in the petition, signed by both plaintiff and defendant, on October 19, 1925, and a bond for deed to the same iproperty, dated March 19, 1923, and signed by Mrs. Geo. A. Thomas and George Schleh, neither of whom are parties to thisi suit.

The evidence shows that defendant never had title to the property and that no legal tender was ever made.

Although there is testimony to the effect that plaintiff orally agreed to give up the deposit, plaintiff denies this emphatically, and we agree with the judge of the lower court in his ruling on this point, for this court said in the case of Stroudback vs. Seriger, Teissier, O. A. D. 153, No. 7396:

“Where the prorpective purchaser has neither permanently refused to accept delivery nor formally renounced his deposit, he must be regularly put in default before his deposit can be forfeited.”

Although defendant testifies that he was ready and willing to convey title before the forty-five days were up,- the evidence shows that the iproperty belonged to a third party on the date of the trial, October 6, 1926, almost a year after the contract was signed.

In Heffern vs. McWilliams, 13 Orl. App. 489, this court said:

“The vendor who ia himself unable to convey title is in no position to resist the suit of the purchaser for the return of the deposit.”

And in Conrad vs. Freed, 6 Orl. App. 253:

“The vendor, having failed to plead in the alternative, and the refusal of the purchaser to take title tendered at the time of the sale, not being arbitrary, the suit by the purchaser for the return of the deposit must 'prevail.”

For the above reasons the judgment is affirmed.


text:
    No. 10,744
    Orleans
    LLOPIS, Appellant, v. MILLS
    (March 14, 1927. Opinion and Decree.)

      {Syllabus by the Court)
    1. Louisiana Digest — Obligations — Par. 182, 183.
    A judgment ordering sp'ecific performance of a contract to do will not be rendered where the terms) of the agreement are not clearly proved.

      Appeal from the First City Court; Division “B”. Hon. Yal. J. Stentz, Judge.
    Action by Raoul J. Llopis against Sarah Mills.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    Harry McEnerny, of New Orleans, Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    Johnston Armstrong, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff alleges that defendant verbally agreed on June 28, 1926, to pay him for her ■ husband’s funeral one hundred and fifty dollars ($150.00) out of an insurance policy of which she was the beneficiary; that he performed the service tendered her one hundred dollars ($100.00) in cash, dmanded that she endorse a check for two hundred and fifty d liars ($250.00), the proceeds of the insurance policy, which had been turned over to him by the insurance company under her instructions.

After praying for a judgment of one hundred and fifty dollars ($150.00), plaintiff prays that defendant be ordered to endorse the draft, upon receiving from plaintiff one hundred dollars ($100.00)' in ca.'h, less court costs and also for all general and equitable relief.

Defendant, after denying the contract and all indebtedness, admits that plaintiff conducted her husband’s funeral; that the insurance company gave plaintiff the draft for two' hundred and fifty dollars ($250.00) and that she refused to endorse it. The answer is dworn to by defendant.

■ The judge of the lower court gave judgment for one hundred and thirty dollars ($130.00) and plaintiff appealed to this court. As defendant did not answer the appeal the only questions before us are plaintiff’s right to twenty dollars ($20.00) additional and to a judgment ordering plaintiff to endorse the check upon proper cash tender to her.

The judge of the lower court evidently deducted twenty dollars ($20.00) from amount claimed for price of coffin, because he thought that plaintiff had failed to credit defendant with that sum, which had been paid or was payable, on account by a benevolent association to which the deceat.ed belonged. Careful reading of the testimony convinces us that proper credit for this item had been allowed in' plaintiff’s bill and that the judgment should be amended by increasing the amount allowed to one hundred and fifty dollars ($150.00).

In his brief plaintiff suggests that this court, under her prayer for general relief, should' order defendant to endorse the draft, and if she fails to do so in a apecified time should authorize plaintiff to endorse her name when depositing the balance due her in the registry of the court. In support of this contention plaintiff refers us to City of New Orleans, et al., vs. N. O. & N. E. Railroad Co., 44 La. 64, 10 South. 401, and Pratt vs. McCoy, 128 La. 570, 54 South. 1012.

In the case first cited the court held that a decree of specific performance should not be granted unless the terms of the agreement are clearly proved and the duty qf defendant clear and unmistakable and readily executed.

Here the evidence as to the agreement is conflicting and the terms of the agreement are not clearly proved.

In the second case cited the court, after stating that specific performance was not favored in law, and that1 equity would not compel defendant to deliver paving certificates tq plaintiff before construction contracts were completed, even though strict terms of the contract so required, finally ordered the certificates deposited in a bank to be selected by both parties.

As plaintiff cites us to no authority going to the extent he asks, and as our research has proved equally futile, we are constrained to follow the judgment of the lower court. We take this step with less regret, because we do not agree with plaintiff in thinking that he has exhausted other possible methods of collecting his judgment.

For the reasons above assigned, it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Raoul Llopis, and against the defendant, Sarah Mills, in the full sum of one hundred and fifty ($150.00) dollars, with legal interest from judicial demand, and all costs of both courts.


text:
    No. 10,676
    Orleans
    JOHNSON v. HIBERNIA BANK & TRUST CO., Appellant
    (Feb. 14, 1927. Opinion and Decree.)
    (Feb. 28, 1927. Rehearing Refused.)

      (8ylldbu$ hy the Court)

    1. Louisiana Digest — Parties—Par. 12; Pleading — Par. 56.
    Where a suit is brought against four defendants charging each one with responsibility for the fall of a building and claiming judgment in solido against all four defendants, they have a common interest in defending the suit and an exception of misjoinder of parties defendants will be dismissed.
    2. Louisiana Digest — Death by Wrongful Act — Par. 22, 23, 26.
    Where the deceased was made unconscious by the accident from which he died thirty minutes after, and' there is no evidence that he suffered, and where he was 55 years of age and earned about $130 a month peddling soap and perfumes, and left two minor children, one 18 and the other 17, $5500 to the widow and $1500 to each child will be considered sufficient compensation.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Winnie Johnson, widow S. J. Leslie et al. against Hibernia Bank and Trust Company, et al.
    ' There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Norman Buckwaldt Schwartz, of New Orleans, attorney for plaintiff, appellee.
    Arthur B. Leopold, of New Orleans, attorney for Claude H. Smith.
    MeCloskey & Benedict; Henry, Cooper and Suthon, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages caused by the fall of a building.

The plaintiff alleged that she is the widow of Samuel J. Leslie and the mother and tutrix of her two minor children, Ruth, aged 18, and Glenn Leslie, aged 17; that the said Leslie stopped^ at the furniture store of Simon' Levy at the corner of S. Franklin and Tulane Ave. to price some merchandise which Levy was exhibiting for sale upon the sidewalk; that while so engaged a shed attached to the building No. 1300-2' Tulane Ave. together with the brick wall supporting the same collapsed and fell upon said Leslie and inflicted serious injuries upon him; that he suffered much pain and died shortly after being removed from the scene of the accident; plaintiff claims the following damages;

For the pain and suffering of the

deceased prior to his death______$ 5,000.00

For the loss of his support____________ 33,000.00

For the loss of his companionship

as a father and husband____________ 10,000.00

For plaintiff’s mental pain____________ 2,000.00

For funeral expenses________________________ 500.00

$50,500.00

Plaintiff further alleged that the buildings No. 1300-2 Tulane Ave. were owned by the late Daniel Moriarity, whose succession is administered by the Hibernia Bank and Trust Co. as executor and trustee; that the Hibernia Bank had leased said property to the said Simon Levy above mentioned who, under the terms of his lease, was responsible for all damages happening on the premises; that one John Yanakas occupied the premises 1302 Tulane Ave. under' the same conditions.

Plaintiff further averred that she was informed that the cause of the wall falling was its defective construction and the excessive weight placed upon it by Claude H. Smith, an employee of the defendant bank, in his attempt to erect an advertising sign.

The plaintiff prayed for judgment for $50,5000.00 against the Hibernia Bank, Simon Levy, John-Yanakas, and Claude H. Smith, in solido.

All the parties filed exceptions and answers.

There was judgment in favor of plaintiff, Winnie J. Leslie, individually, for $7500 for want of support, $500 for funeral and $500 for mental pain; and in favor of each child for $1500, against the Hibernia Bank, executors, and the suit was dismissed as against all the other defendants.

The defendant, the Hibernia Bank and Trust Co., executor, alone has appealed.

In this court the only exception insisted on is the one of “misjoinder of parties defendants”.

There is no law upon the subject, only jurisprudence. The test is common interest of the defendants. In the case of Morgan Rrd. vs. Godchaux, 3 La. App. 236, we said:

“There is no misjoinder of parties defendants where they have a common interest in the principal matter in controversy, notwithstanding some distinction in plaintiffs’ claim against each defendant.”

We see no injury to happen to the defendant bank by overruling its exception, nor any harm to it by dismissing it. It was the common interest of all parties to the suit to have the liability of the parties settled in one suit.

We believe the question of liability has been correctly settled by the judgment of the trial court except the amount thereof.

The evidence is that the deceased was 55 years of age and was earning $130 a month as a salesman of soap and perfumery. He was also a negro preacher. According to the tables of mortality he had a life expectancy of about 17 years. He lived 30 minutes after the accident with no apparent suffering. The trial judge was guided in his estimation of damages by the cases of Vincent vs. Rrd., 140 1027 and Kent vs. Rrd., 154 La. 142. But in neither case was the plaintiff a widow or a minor child. In the Vincent case the plaintiffs were “the parents of a boy” killed by the defendant’s employees. In the Kent case plaintiff was the father of a girl 17% years old.

Although there is no arbitrary amount of damages fixed by statute, and although in the amount thereof much discretion must be left to the judge or jury, C. C. 1934, the courts are not left without a guide, but are controlled by a sound legal discretion, established by the decisions of the Supreme Court in similar cases. ■

In Rice vs. Rrd., 51 La. Ann. 108, 24 So. ’ 791, the court said, p. 114:

“It has never been the intention to fix by rule specific sums for different classes of injuries, nor for varying grades and duration of anguish and suffering.

“In this respect, each case is considered independently on the merits and on the state of facts peculiar to it, a due regard, however, being always had to the proper observance of a reasonable uniformity of jurisprudence on general lines.” Williams vs. Pickering Lbr. Co., 125 La. 1087-99, 52 So. 167; McMahon vs. N. O. Ry. & L. Co., 127 La. 544, 53 So. 857; Feely vs. National Packing Co., 141 La. 910, 75 So. 837.

• The deceased was made unconscious by the accident and died thirty minutes after. There was no evidence that he suffered any. Hill vs. Big Creek Lbr. Co.2 108 La. 163, 32 So. 372; Kimbell vs. Homer Compress & Mfg. Co., 109 La. 963, 34 So. 39; Blackburn vs. L. R. & N. Co., 128 La. 319-333, 54 So. 865; Churchill vs. T. & P. Ry. Co., 151 La. 730, 92 So. 314.

1st. In the case of Blackburn vs. Ry., 144 La. 520, 80 So. 708, the court reduced a verdict and judgment in favor of a widow and two minor children from $30,000 to $5000 for the widow and $5000 for each of the children. The husband was 32 years of age and was earning $100 a month.

2nd. In Robichaux vs. Hebert, 118 La. 1089, 43 So. 887, the deceased was 50 years old, was earning $1.50 per day, and had a life expectancy of 21 years. The widow was allowed $1000 and two minors $3000.

3rd. In Moren vs. Ry., 125 La. 944 (962-963), 52 So. 106, the deceased was 36 years old and was earning $75 per month. His widow recovered $5000 and her minor child $5000.

4th. In Taylor vs. Rrd., 123 La. 768, 49 So. 518, the deceased was a farmer; he lived six days after the accident. His widow was awarded $2000 and $3000 for her eight minor children.

5th. In. Crisman vs. Rrd., 110 La. 640, 34 So. 718, the deceased was- 49 years old and earned $4 or $5 per day; his widow was 43 years old. The jury and court gave the widow $4500 and $300 to his minor son. 18 years old.

6th. In Potts vs. Rrd., 110 La. 1, 34 So. 103, the deceased was 27 years of age and foreman of a telephone line gang. The court and jury allowed his widow $50.00.

7th. In Hill vs. Big Creek Co., 108 La. 162, 32 So. 372, the deceased was a mill hand, his widow and minor child received $5000.

8th. In Downing vs. Rrd., 104 La. 508, 29 So. 207, the deceased was 54 years of age, an engineer by occupation, earning $1500 per annum. His widow recovered judgment for herself and minor children for $6500.

9th. In Dorsey vs. Rrd., 104 La. 478, 29 So. 177, the widow .was awarded $2500.

10th. In Helm vs. O’Rourke, 46 La. Ann. 178, 15 So. 400, the deceased was a laborer in a boiler shop; his widow obtained, judgment for $3000.

11th. In Cline vs. Rrd., 43 A. 327, 9 So. 122, the deceased was 62 years of age; he was a wagon driver and earned $1.50 or $2 a day.

The court said; •

“It is claimed that according to the life insurance time tables he would probably have lived 12 years more, and it is insisted that his earnings during that time would have amounted to a considerable sum, and that this amount at least should be recovered in this action. It may be, and it may not be, that the party would have lived that time. He might have died the next day, the next month, the next year, by disease or some accident, or some other unforeseen cause.”

The judgment was in favor of the widow and of her minor children for $1000.

12th. In Curley vs. Rrd., 40 La. Ann. 810, 6 So. 103, the deceased was the driver of a float. His widow and minor child were allowed $7000.

13th. In Clairain vs. Western Union Tel. Co., 40 La. Ann. 178, 3 So. 625, the deceased was a lineman. His widow sued in her own right and as tutrix of her minor children and claimed damages resulting from the sufferings of the deceased and from the loss of the husband and father. She claimed $5000 for herself and $5000 for her children. She obtained a judgment for herself and children of $3000.

14th. In Faren vs. Sellers, 39 La. Ann. 1011, 3 So. 363, the deceased was a laborer engaged in demolishing a' building. His widow and minor children recovered judgment for $5000.

15th. In Reed vs. Sievers, 146 La. 391, 83 So. 685, the court allowed the widow $1500, for the killing of her aged colored husband, a laborer by occupation.

16th. In the case of Eichhorn vs. Rrd., 112 La. 236, 36 So. 335, the deceased died two days after the accident; he earned from $200 to $250 a month; he was 39 years of age and had a life expectancy of 28 years. His widow .was allowed $10,000. State vs. City of O., 151 La. 24, 91 So. 533.

17th. In a' later case Eichorn vs. New Orleans & C. R.-Light & Power Co., 114 La. 712, 38 So. 526, his minor children got $7000.

18th. In Dobyns vs. Rrd., 119 La. 72, 43 So. 934, the widow of a freight train conductor, 32 years old, earning $1200 a year was allowed $10,000.

19th. In Cunningham vs. Penn, 131 La. 196, 59 So. .119, the widow of a construction iron worker, age not stated, obtained $7000 against each of the two defendants in solido.

20th. In Broussard vs. Rrd., 140 La. 517, 73 So. 606, the deceased was 36 years of age and was earning $65 a month; he survived the accident thirty minutes and suffered greatly. His widow recovered $5000 ,and $2000 to each of his minor children, 9, 5 and 2, respectively.

21st. In Wirth vs. Dussell Iron Works, 140 La. 1056, 74 So. 551, the deceased was a marine engineer, 45 years of age; he suffered 56 hours; he left three children. The widow was allowed $6000 and a like sum to the three children.

22nd. In Bourdier vs. La. Western Rrd., 131 La. 689, 60 So. 78, the deceased was section foreman on defendant’s road, 28 years of age; he died in about four hours. His widow was allowed $10,000.

24th. In Jones vs. Kansis City Rrd., 137 La. 178, 68 So. 401, the deceased was a locomotive engineer, 33 years of age, and was earning $175 a month. There was a verdict and judgment in favor of the wife for $5000 and $12,500 in favor of her three minor children aged 2, 6 and 7.

25th. In Feely vs. National Packing Co., 141 La. 903, 75 So. 837, the deceased was an engineer 54 years of age with an expectancy of 18 years of life and was earning $150 a month; he was severely burned by an explosion of gas and suffered eight days; his child was 13. Judgment of $10,000 in favor of the widow and $5000 for the child.

26th. In Rose vs. L’Engle, 148 La. 310, 86 So. 822, the deceased was 67 years of age and earned $30 a week; he suffered intensely for almost a week with little or no hope of recovery. Judgment in favor of widow $10,000.

27th. In Gray vs. Foundation Co., 151 La. 7, 91 So. 527, the deceased was a salesman for an oil company, 39 years of age, ■ and earned $200 or $250 a month. Judgment for $15,000 for the widow and her four minor children.

Considering the age, the occupation, and the earning capacity of plaintiff’s husband, we are of the opinion that a judgment in her favor for five thousand dollars for loss of support instead of seven thousand, five hundred allowed by the trial court would be substantial justice.

It is therefore ordered that a judgment herein be amended by reducing the amount allowed to the plaintiff Winnie Johnson, widow Samuel James Leslie, from eight thousand, five hundred dollars to six thousand dollars, that the judgment in favor of the two minors Ruth Leslie and Glem Leslie for fifteen hundred dollars each be affirmed.

That as thus amended the judgment be affirmed, the Hibernia Bank and Trust Co. to pay the costs of appeal.


author: WESTERFIELD, J.

text:
    No. 10,768
    Orleans
    ENGLERT v. PARACHINI
    (March 14, 1927. Opinion and Decree.)

      (Syllabus by the dourt.)

    1. Louisiana Digest — Appeal—Par. 572.
    An appellate court will not consider documents not offered in evidence.
    2. Louisiana Digest — Landlord and Tenant —Par. 67.
    A landlord is responsible for damages to piano of his tenant caused by falling plaster.
    Appeal from First City Court, Division “B”. Hon. Val. J. Stentz, Judge.
    Action by William J. Englert against Peter J. Parachini.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Harry E. McEnery, of New Orleans,, attorney for plaintiff, appellant.
    C. C. de Baroncelle, of________________, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit against his landlord for $150.00, the alleged amount of damage to his piano caused by falling plaster.

Defendant in his answer avers that plaintiff in a written lease had assumed all responsibility for repairs to the leased premises and that consequently if any plaster fell on plaintiff’s piano plaintiff alone is at fault. In the alternative defendant says the amount claimed is excessive.

A writ of attachment was sued out and defendant’s property seized upon the ground of non-residence. L. Walter Cock-field, being appointed curator ad hoc.

There was judgment for defendant and plaintiff has appealed.

The written lease, though relied on in the answer, and referred to in the testimony, was not introduced in evidence. We are urged to consider it because the answer was sworn to and both plaintiff and defendant admitted signing the lease which was exhibited to them. This we can not do because we can only consider documents which were offered in evidence below. O. K. Realty Co., Inc., vs. Juliani, 1 La. App. 1.

Anticipating our conclusion in this regard, counsel requests that the case be remanded in order to afford an opportunity to introduce the lease in evidence. We can see no useful purpose in remanding * the case on that account, since there is evidence in the record, not contradicted, to the effect that, by a subsequent agreement, the landlord agreed to and did actually repair the leased premises. We will consider the case from the standpoint of the legal obligations of landlord and tenant unaffected by convention. Viewed in this light there can be no doubt of the landlord’s responsibility for damages caused by falling plaster. Norman vs. Maestri, 3 La. App. 228.

There remains the' question of quantum.

The only testimony in this record in this regard is by a piano repairer placed on the stand by plaintiff. He testifies that he repaired the piano, taking about one month to do it, and charged plaintiff $150.00. We see no reason to question this amount.

In some manner the curator ad hoc was overlooked by the court a qua. By consent of all counsel he files a motion in this court asking that his fee be fixed at $10.00, a modest sum.

For the reason assigned the judgment appealed from is reversed and it is now ordered that there be judgment for plaintiff, William J. Englert and against Peter J. Parachini, in the full sum of $150.00 with legal interest from judicial demand.

It is further ordered that that writ of attachment sued out herein be maintained and plaintiff’s lien and privilege upon the property seized be recognized; that the property seized be sold and plaintiff’s claim be paid with preference and priority out of the proceeds thereof.

It is further ordered that defendant pay all costs, including the sum of $10.00 as attorney’s fees, to L. Walter Cockfield, the duly appointed curator ad hoc herein.


text:
    No. 10,769
    Orleans
    TAYLOR v. CRESCENT CITY MFG. CO., Appellant
    (March 14, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 4, 4 (b).
    On turning corners chauffeurs should not only hold out their hand as required by the ordinance but make sure that by suddenly turning, they do not drive across the path of another oncoming automobile.
    (Civil Code, Rrt. 2315. Editor’s note.)
    Appeal from First City Court. Hon. W. Y. Seeber, Judge.
    Action by Sam W. Taylor against Crescent City Manufacturing Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. E. Kerrigan, of New Orleans, attorney for plaintiff, appellee.
    John Unsworth, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for $105 damages to plaintiff’s auto and $48 for 12 days deprivation of the use of said auto.

The plaintiff averred that at about 11 a. m., he was driving up South Claiborne street, when about 30 feet from Gravier street he drove next to the left hand neutral ground curb in order to pass a truck of defendant company running in the .center of the street a few feet ahead of plaintiff; he sounded his horn and proceeded to pass the truck on its left, there being ample room; that just as the front of plaintiff’s car had passed the left rear wheel of the truck, the chauffeur of the truck suddenly and without extending his arm as provided by Ordinance 7490 and without any warning whatever turned the, front of said truck to the left driving it directly in front of plaintiff’s car and striking the right running board of plaintiff’s car, causing it a damage of $105; that while the repairs were going on for '12- days plaintiff was deprived of the use of his car causing him a damage of $48.

The defendant denied all the allegations of plaintiff’s petition. He answered that he was driving up the left hand side of the street, and when he approached Gravier street he slowed down to about 15 miles an hour and extended his left hand out in a horizontal position as a signal that he intended to turn to the left into Gravier street in the direction of the river; that as his truck had nearly completed the turn into Gravier street he was run into in the rear by the car of plaintiff, who was running at an excessive rate of speed, thereby causing the damage to plaintiff’s car.

There was judgment for plaintiff for $115 and defendant has appealed.

There is conflict in the testimony, but after reading it we have come to the conclusion with the trial judge that plaintiff’s theory is correct.

It is not disputed that both cars were running up S. Claiborne street in close proximity to each other, and that on reaching Gravier street the defendant’s car swerved to the left to turn into the intersection. Plaintiff had reason to believe that the defendant’s car would continue in the same direction up the street. When the existence of a certain state of things is established, the law presumes that the state of things will continue to eixst as before. Greenleaf, Ev. S. 41; 16 Cyc. 1052.

The duty rested upon the defendant to 'inform the plaintiff that he was about to turn into Gravier street. This is made evident by the traffic ordinance which makes it the duty of the chauffeur to hold out his hand.

The defendant should not only give the signal but see that, by suddenly turning, he does not drive across the plaintiff’s path. This he evidently did not do, or he would have checked his course. Huddy, p. 300; S. 263, 264, 334, 386, 387, 390.

The trial judge was of the opinion that defendant brought on the collision, and we cannot say that he erred.


text:
    No. 10,743
    Orleans
    STEWART, Appellant, v. JOHNSON
    (Feb. 14, 1927. Opinion and Decree.)
    (Feb. 28, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, unless clearly erroneous, will be affirmed.
    Appeal from City Court, Section “C”. Hon. W. V. Seeber, Judge.
    Action by Samuel B. Stewart against Wm. F. Johnson.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.
    A. B. Booth, Jr., of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for one hundred, forty-five and 00-100 ($145.00) dollars, with eight per cent per annum interest from April 5, 1924, and twenty per cent additional attorney’s fees on a contract of lease of a washing machine.

The contract, which is attached to the petition, shows that plaintiff leased to defendant an airplane washer, motor No. 73518, serial No. 11018, for eleven and two-thirds months from April 1, 1924, for one hundred, seventy and 00-100 ($170.00) dollars, payable twenty-five and 00-100 ($25.00) dollars cash and balance at the rate of twelve and 00-100 ($12.00) dollars per month on the the 5th of each successive month.

The lessee agrees that he will keep machine at given address and will permit inspection of seller’s agents at all times, that in case of default in any one payment, whole shall become due at once with interest and attorneys’ fees; that in case of default lessor may take possession by force, if necessary, of machine; that if all payments are made when due, then defendant shall have the right on payment of one and 00-100 ($1.00) dollar to purchase said machine.

Defendant filed an exception of no cause of action, which w;as not decided.

Defendant then filed an answer admitting the lease and delivery of the' machine, but averring that the machine was not the new machine sold him under the contract, that it was worn and unfit for the purpose for which it was purchased, that he had written plaintiff on April 8, 1924, telling him machine was defective and demanding a new machine.

Plaintiff testified that defendant, who had first bought a Laundriette machine and made a cash payment of twenty-five and 00-100 ($25.00) dollars thereon, complained that machine was unsatisfactory and he agreed to give him the airplane in exchange; that defendant came to the store, examined the machine which was after-wards delivered to him; that defendant complained that this machine was secondhand and he then sent him a brand new machine by his salesman and had him sign the contract sued on; that he then lowered the price of machines and defendant complained that the wringer was bad and he sent a new wringer out to the house, but defendant refused to accept it.

Later on cross-examination he testified as follows:

“Q. You testified you delivered two airplanes to Johnson, is that correct?

“A. I don’t know.”

Mr. Brunet, salesman for plaintiff, testified that the contract sued on was signed by defendant in his presence the day the machine was delivered by him and that the cord was delivered later.

Defendant testified that he and his father had examined a worn airplane washer at plaintiff’s store; that plaintiff promised to deliver a new machine, but failed to do so and delivered the old one, which he had examined at the store; that he was certain - of this fact, because plaintiff had made an “X” on the machine at the store and he saw same mark on the machine when it was delivered; that cord was missing when machine was delivered and machine could not be tested until next day and that it then failed to work, because the gear shifts were rusty; that he at once notified plaintiff; that only one airplane machine had been delivered and that he had paid twenty-five and 00-100 ($25.00) dollars cash; that he was not worried about the machine being old and chipped, it was the gearing and he wanted a new machine.

The father of defendant swore he had not seen plaintiff at the shop and confirmed the defendant on other points. The mother of defendant swore that only one airplane machine had been delivered and that it would not work. They all agree that only one machine was delivered and that second-hand.

Brunet, when called to the stand in rebuttal, first stated that he got only one contract, although he delivered two airplanes and then he changed his testimony and said he got two contracts and that Mr. Stewart ought to have the contract on the first airplane in his office. If so it does not form a part of the record. There is,' however, a letter from defendant’s attorney written by request to the judge of the lower court on the day the case was tried (copy sent to plaintiff’s attorney) in which he states that defendant had examined the ■ numbers on the machine and that they correspond with the numbers on the contract.

It it thus seen' that the plaintiff has failed to make his case certain and for the above reasons the judgment is affirmed.


text:
    No. 10,745
    Orleans
    CLASP ENVELOPE CO. v. TRUSILK CO., Appellant
    (March 14, 1927. Opinion and Decree.)

      (Syllabus ly the Court)

    1. Louisiana Digest — Mandate—Par. 49, 61.
    A principal is liable to third persons for the act of his agent, admittedly acting within the scope of his employment. The fact that the agent violated secret instructions, inadvertently or otherwise, can not affect third persons.
    Appeal from First City ■ Court, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by Clasp Envelope Company, Inc., against Trusilk Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Weirs, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    E. M. Cahn, Leon S. Cahn, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $182.00, the price of certain envelopes, manufactured for and sold to defendant, by plaintiff. Defendant avers the envelopes were not as ordered and too large for the purpose for which they were purchased.

There was judgment for plaintiff and defendant has appealed.

Plaintiff corporation is domiciled in New York City, and defendant in New Orleans. The envelopes were purchased by Louis J. Blumenthal, who resides in New York, as the purchasing agent of defendant. Blumenthal, testifying by commission, said the envelopes were exactly as ordered by him after submission of sample to David Cohen, an officer of defendant corporation, and, his approval obtained. Cohen denies having received the sample and his alleged approval. Rut, be that as it may, Blumenthal’s agency is not denied. It is contended that plaintiff was put on inquiry as to Blumenthal’s authority by the mere fact of his agency and particularly so since he was a special agent. Mechen on Agency, 2nd Ed., sec. 742; Chaffe vs. Shibbs, et als., 37 La. Ann. 658; Nester vs. Craig, 69 Hun. 543, 23 N. Y. Sup. 948.

But there is here no question of Blumenthal’s authority to purchase the envelopes. It is admitted that he was defendant’s agent for that very purpose. If, as defendant contends, Blumenthal bought a larger envelope than he was instructed to buy, whose fault was it? Can it be said that plaintiff is presumed to know the private instructions given defendant’s representative? We believe it to be elementary that one who acts through another acts for himself. Qui facit per aliam facit per se. A party dealing with an agent, acting within the scope of his authority is regarded as dealing with the principal. .Third persons can not be bound by secret or private instructions to an agent. Corpus Juris, vol. 2, verbo “Agent”, p. 566.

There is a distinction between authority given an agent and instructions;

“It is proper to receive evidence to establish the former or to show the knowledge of third persons as to the authority of the agent, and any limitations thereon, but the agent’s apparent authority being proved, it is not proper to admit evidence of instructions unknown to third persons and not intended to be communicated by tbe agent.” C. J., vol. 2, p. 566.

Our conclusion is that the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 10,757
    Orleans
    FREEMAN & FREEMAN, Appellant, v. ROBERT
    (March 14, 1927. Opinion and Decree.)

      (Syllabtts by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact,* being clearly correct, is affirmed.
    Appeal from First City Court, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by Freeman & Freeman against Hillary B. Robert.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Weirs, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    Louis C. Guidry and Dart & Dart, of New Orleanrj attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a firm of real estate agents, sues defendant, its former employee, for an overdraft in the sum of $158.50. Defendant admits the overdraft, but claims it is due to the failure of plaintiff to credit his account with a commission due him on a certain sale in the sum of $295.00. He reconvenes, claiming the difference in his favor.

There was judgment for plaintiff as prayed for and for defendant on the re-conventional demand in the sum asked, resulting in a net judgment for defendant in the sum of $100.50. Plaintiff has appealed.

The only question before us is whether defendant’s reconventional demand should be allowed. Defendant was a salesman in plaintiff’s office. The disputed commission, which is the basis of the reconventional demand, is based upon the sale of certain property belonging to a party by the name of Lekow, and listed with plaintiff’s agency for sale. Pardo, another salesman employed by plaintiff, also claimed the commission, and, plaintiff decided in Pardo’s favor, paying him the commission. The act of sale of the property runs from Lekow to Perkonski. Perkonski is Pardo’s customer, and Pardo’s claim rests upon that fact. The record, however, shows that H. S. Verlander, a customer of Roberts, the defendant, was the first purchaser, that is to say, Verlander agreed to buy the property, put up the deposit of 10 per cent required, and signed the customary agreement to buy and sell.

Before the act of sale was passed Verlander agreed with Perkonski to sell him the property for a profit of $500.00. The act of sale was accordingly made direct to Perkonski who borrowed some money from a homestead on first mortgage and from Verlander $3000.00, giving him a note secured by second mortgage on the property for $3500.00.

Verlander testifies that Roberts, alone, sold him the property. Perkonski gives credit to Pardo and claims that Verlander only financed the deal. But he does not deny that Verlander made the deposit, signed the agreement of sale, and made a profit of $500.00 on the transaction.

The trial judge resolved the conflicting testimony in defendant’s favor and we can not say he manifestly erred.

The judgment appealed from is affirmed.


text:
    No. 9574
    Orleans
    MAURIN, JR., v. ALLTMONT & BRO., Appellants
    (Jan. 31, 1927. Opinion and Decree.)
    (Feb. 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes— Par. 238; Payment — Par. 24.
    Where a creditor is in the habit of retaining checks given as evidence of a debt after payment by his debtor, the fact that he holds a check of the debtor will not be accepted as conclusive of the debtor’s failure to pay the debt, and, when other circumstances tend to discredit the creditor, the debtor’s statement that the debt has been paid will be accepted.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Fortune Maurin, Jr., against C. Alltmont & Brother, et al.
    There was judgment for plaintiff and defendant appealed.
    • Judgment affirmed.
    P. E. Edrington, Jr., of New Orleans, attorney for plaintiff, appellee.
    H. H. Weiner, J. A. Woodville, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

Plaintiff, Maurin, was a partner of one Fred Ress. The firm of Ress & Maurin operated a soft drink and restaurant business in Reserve, St. John the Baptist parish. Ress was in the habit of borrowing $1000.00 for account of his firm from Lazare Weil, a storekeeper in Reserve, and a partner of Charles and Alfred Alltmont, of New Orleans. Weil’s store was owned and operated by the partnership of which he was a member, but since his partners lived in New Orleans, Weil managed the business as though he owned it. When Ress got the money from Weil he would give him a check dated one month ahead for $1065.00, the $65.00 being for interest. When Ress paid Weil, usually by check having a current date, it would be cashed by Weil at once. This transaction was repeated from time to time until the firm of Ress & Maurin dissolved. Whereupon Alltmont demanded that Maurin pay one of these past dated checks for $1065.00, which Maurin did by giving $200.00 in cash and notes of $100.00 each for the balance, the notes maturing at monthly intervals. After paying four notes, or $600.00 in all, Maurin, alleging that he had paid the Alltmont partnership in error because the check had been .previously paid, brought this suit for the return of the cash and the notes given in error.

The district judge first decided in defendant’s favor, dismissing plaintiff’s suit. Thereafter, a new trial being granted, gave judgment for plaintiff.

The case is not free from difficulty, but we believe, as did the judge a quo, in his final disposition of the case, that plaintiff is entitled to judgment. Certainly we can not say that the judgment was manifestly erroneous as, under familiar rules of appellate procedure, we should be obliged to do in order to reverse the judgment in; a case like this which involves only a question of fact.

The evidence shows that very unbusinesslike methods were employed by the lender and the borrower. Payments were made and in some instances no receipts given and the checks given as evidence of the indebtedness were not returned. Checks, given by the borrower, which were not intended to be presented, were used in lieu of notes. Other checks which were intended to be cashed were given in payment of the loans. Weil, on several occasions, would retain the note checks after the loan had been paid by a real check, and when the last settlement was made with Alltmont by Maurin, paying cash and giving notes, the note check was not returned. In fact it was only returned shortly before this suit was filed, on demand of plaintiff’s counsel, nearly, if not quite, six months after the settlement.

It will be seen, that, with such methods of transacting business, plaintiff’s contention that the note check was paid and not returned is at least plausible. Ress claims to have paid Weil $1000.00 in cash on one occasion, which Weil denies receiving. Cambre, a by-stander, testified that he saw Ress counting out currency to Weil, following a conversation, overheard by Cambre, in which Weil demanded, and Ress agreed to pay a debt, though Cambre cannot say how much was demanded or how much actually paid. Finally, Weil’s testimony is most unsatisfactory. He first denied, emphatically, getting any cash from Ress and afterwards qualified by saying he didn’t think so. He told Ress that one of these note checks which Ress had paid and was seeking to have returned to him was in New Orleans when, as a matter of fact it was in his, Weil’s, possession in Reserve.

We think the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 10,735
    Orleans
    O’REILLY ENG. CO., INC., Appellant, v. BUCKNER
    (Dec. 13, 1926. Opinion and Decree.)
    (Jan. 3, 1927. Rehearing Refused.)
    (March 28, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Court)

    ON MOTION TO DISMISS
    1. Louisiana Digest — Appeal—Par. 480.
    An extension of the return day does not carry with it days of grace.
    2. Louisiana Digest — Appeal—Par. 478.
    A second or subsequent application for an extension must be made on or before the day to which the extension is made.
    3. Louisiana Digest — Appeal—Par. 479.
    Certificates for an extension of time to file a transcript are obtained from the clerk of the court from which the appeal is taken, and not upon the affidavit of the stenographer.

      4. Louisiana Digest — Holidays—Par. 3.
    It is lawful to take all legal proceedings on Saturday half holidays.
    -5. Louisiana Digest — Appeal—Par. 483, 518.
    A motion to dismiss the appeal for failure to file the transcript in time may be made at any time.
    Appeal from First City Court, Section “C”. Hon. Wm. V. Seeber, Judge.
    Action by O’Reilly Engineering Company, Inc., against William A. Buckner.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    F. Rivers Richardson, of New Orleans, attorney for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

The plaintiff obtained a judgment against the defendant for $87.86, and ordering the cancellation of an inscription in the mortgage office.

From this judgment the defendant obtained an appeal “returnable to the Court of Appeal on the 13th day of September, 1926”.

On September 15, 1926, by an order of this court, the return day was extended to September 23, 1926.

On September 23rd the return day was again extended to October 2nd.

On October 4th the return day was once more extended to October 12th.

The transcript was filed in this court on October 11, 1926.

The plaintiff and appellee moves to dismiss the appeal on the ground that the appeal herein taken was filed too late, * * * that instead of filing said appeal on the second day of October, 1926, appellant did, on October 4, 1926, apply for a further extension within which to file said appeal, which was inadvertently granted by this court on October 4th, extending the time within which to file said appeal to the 12th day of October, 1926.

The motion to dismiss must prevail.

“Applications for extension of time to bring up the transcript are granted without prejudice to the appellee’s right to move to dismiss, or show that the extension should not have been granted.” Manning Unr. cases, 23-38 A. 905.

“An order granting to an appellant additional delay for filing the transcript after return day inadvertently, in contravention of the rule of Code of Practice, Art. 883, will be rescinded by the Supreme Court on its own motion. Hence, such an order cannot save the appeal.” 1 La. Dig., S. 477, p. 511 (1888); S. 485, p. 517 (1885).

“An extension of the return day does not carry with it the days of grace added to the original return day, and a second or subsequent application for an extension must be made on or before the day to which the extension is made. This has been repeatedly held.” State vs. Courtney, 28 La. Ann. 790; Sampite vs. Deslouche, 135 La. 330, 65 So. 479; Brown vs. Hart, 11 Adv. sh. Ct. App. 383; 1 Ct. App. 152.

Counsel for appellant would excuse his failure to file the transcript in time by alleging “that the stenographer was out of the city on October 2nd, and counsel for appellant was unable to get the transcript on that date, nor wa)s he able to get an affidavit from the stenographer so he could annex same to his motion for a further extension”.

The extensions are granted upon the certificate of the clerk of the court from which the appeal is taken, and not upon an affidavit of the stenographer.

Appellant also contends that October 2nd “was a Saturday and a half holiday, and nothing could be done until Monday, which was the 4th. This is an error. Sec. I of Art. 249 of 1926, p. 427, provides:

“That it shall be lawful to issue and serve citation and to take and execute all other legal proceedings on Saturday half holidays.”

There is no allegation that the clerk’s office was closed.

Appellant lastly asserts that the motion to dismiss comes too Igte after three days after the filing of the transcript.

But the law and the jurisprudence have been constant, that the failure to file a transcript carries with it an abandonment of the appeal C. P. 594, and that a motion to dismiss an appeal on that ground may be made at any time. I La. Dig. S. 326, •p. 544 (1838).