text:
    No. 12,020.
    Isador Bush Wine and Liquor Company vs. Leopold Wolff et al.
    Two agreements o£ contemporaneous date, one of which is signed by creditor and debtor, and the other by the debtor and surety, and each malting reference to the other, must be construed together, and thus construed, what is doubtful in one may be made clear by what is found in the other.
    An agreement to extend a line of credit for a certain amount, coupled with a stipulation for the payment of all goods purchased, binds a surety for a general balance of account.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Thigpen & Foster for Plaintiff, Appellee.

      Wise & Herndon and Solomon Wolff for Holzman, Defendant, Ap pellant.
    Argued and submitted January 21, 1896.
    Opinion handed down February 10, 1896.
    Rehearing refused May 4, 1896.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to recover of Leopold Wolff as principal and Ben Holzman as surety the sum of three thousand four hundred and seventy-four dollars and ninety-seven cents, as the balance due upon a current account of 1894.

Various dilatory pleas were interposed and overruled, and, after answer filed, judgment was rendered against both defendants in solido, from which Holzman alone has appealed.

The question which is exclusively controverted in this court is the liability vel non of the surety.

The stipulation of the agreement which the counsel of the surety relies upon as controlling, and interpretation of which must necessarily be decisive, is: “The Isador Bush Wine and Liquor Company agrees to extend a line of credit to said Wolff of five thousand dollars,” and their contention is that he became liable thereunder for five thousand dollars and no more.

That five' thousand dollars was the limit of his obligation, and when that limit was reached by the advancement of that sum his responsibility was at an end.

On the other hand, the contention of the plaintiff’s counsel is, and the opinion of the judge a quo was, that the surety is liable for any balance of account up to five thousand dollars.

We subjoin the following statement of account between the parties, as fairly illustrative of the contentions of the respective parties, to-wit:

Mdse, sold to L. Wolff.....................................................................$8,890 62

Cash advanced.......................................................................:......... 150 00

$9,046 62

On this there has been paid........................................................... 5,649 31

Balance...................................................................................$3,397 31

To which add interest, deducted from the several payments....... 77 66‘

$3,474 97

On this showing, it appears that the plaintiff sold Wolff merchandise to the amount of eight thousand eight hundred and ninety-six dollars and sixty-two cents, and there has been paid thereon the sum of five thousand six hundred and forty-nine dollars and sixty-two cents by Wolff. If the surety’s contention be accepted as the correct one, Wolff has enjoyed the full benefit of his suretyship, and has discharged him by making the aforesaid payment, it being in excess of five thousand dollars. But if that of plaintiff be accepted, the surety is still bound, and must respond to the general balance of account.

There is no controversy as to the correctness of the debt.

There were two agreements, one of which was made by and between Isador Bush Wine and Liquor Company and L. Wolff, and the other between L. Wolff and Ben. Holzman — both of contemporaneous date.

In the former it was agreed that plaintiff had consented to “extend a line of credit to said second party to the amount of five thousand dollars,” provided Wolff should furnish Ben. Holzman “ as surety for the payment of all goods purchased by said Leopold Wolff from the Isador Bush Wine and Liquor Company under their agreement in the year 1894.”

In the latter, Wolff, as principal, and Holzman, as surety, bound themselves “in the sum of five thousand dollars, to be paid to said Isador Bush Wine and Liquor Company,” etc., the condition of which is “that whereas the said Isador Bush Wine and Liquor Company has entered into a contract with Leopold Wolff, of even date herewith, by which it agrees to extend to said Wolff a line of credit amounting to five thousand dollars; now if the said Leopold Wolf shall and will pay for the goods purchased from the said Isador Bush Wine and Liquor Company in accordance with the terms and conditions of the agreement herein referred to, then this obligation shall be ■void, otherwise it shall remain in full force and effect.”

By this phraseology it becomes apparent that Holzman, as surety, bound himself just as Wolff had bound himself. He bound himself to the performance of the stipulations of the contract between the wine and liquor company and Wolff'. It must be observed that their •engagement provided not only that the wine and liquor company should “extend a line of credit” to Wolff to the amount of five thousand dollars, but the latter bound himself to furnish a bond for five thousand dollars, executed by himself and Ben Holzman * * * .as surety, for the payment of all goods purchased by said Leopold Wolff from the said Isador Bush Wine and Liquor Company, etc., and that Ben. Holzman became a party to this engagement.

These agreements have the effect of law between all the parties thereto, and we must give to them the interpretation which their terms plainly import. The condition of Holzman’s contract was that Wolff should “ pay for the goods purchased” from the wine and liquor company; and the condition of Wolff’s engagement was “to furnish Ben Holzman as surety for the payment of all goods purchased” by him from the wine and liquor company.

We have carefully considered the argument of counsel with reference to the term “ line of credit ” which is employed in both oí the ■contracts and the authorities cited as bearing on the question.

Their contention is that that term had the .effect of placing a limitation upon the liability of the surety, and restricted same to the amount of five thousand dollars; and that he can not consequently be held bound for more.

In this connection we have examined the decision of the court, The American Button Hole, etc., Machine Company vs. Gurnee, 4 Wisconsin, 49, which has been pressed uppn our attention; but we find that the argument in that case was that the term “line of credit” had the effect of continuing and extending the limit of the surety’s obligation, and the court, while they discharged the surety on a different ground, seemed inclined to recognize the interpretation placed upon it by counsel.

We have also noticed the ease of Gerson vs. Hamilton, 30 An. 737, and Stewart vs. Levis Bros., 42 An. 37, but we are of opinion that they are consistent with the views herein expressed. The contract of Holzman is one of suretyship under the provisions of our Oode and not one of commercial guaranty. It was made by and between citizens of this State, and did not have any extra territorial effect. The surety bound himself absolutely for a certain sum, payable in any event.

The judge of the District Court entertained this view, and we are of his opinion.

Judgment affirmed.

On Application for Rehearing.

Our conclusion is that the principles of law upon which we rested our decision-are correct, and it must therefore stand.

But we are of opinion that the appellant, having bound himself for the payment of all “good spurchased” by the defendant Wolff didnot become liable to the plaintiff for “cash advanced,” and consequently he is entitled to a reduction on the judgment of one hundred and fifty dollars on that account.

It is therefore ordered and decreed that judgment appealed from be amended by giving the appellant, as surety for defendant, credit for the sum of one hundred and fifty dollars; and that, as thus amended, the same be affirmed — the plaintiff and appellee being taxed with the costs of appeal.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,942.
    George W. West vs. Domingo Negrotto, Sr.
    The effect oí a failure by a purchaser at a tax sale to pay ail taxes due at the time of purchase would be to leave such purchaser without title; but the State would still remain the owner under a prior adjudication to it which legally vested title in itself. So when the original owner of property adjudicated to the Stale proceeds by a petitory action against the purchaser at tax sale, in possession under a tax collector’s deed, his suit will be successfully met by the fact that his title has passed to the State and he can not recover, because of the weakness of title in the tax purchaser.
    Plaintiff in a petitory action, who declares upon a particularly specified title is confined to that title on the trial.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      F. L. Richardson and Kernan & Wall for Plaintiff, Appellee.

      J. Zach. Spearing for Defendant, Appellant.
    Argued and submitted March 14, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused May 4, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

The property in litigation in this suit was, while standing assessed in the name of George West, adjudicated to the State, first under Act No. 77 of 1880, for the unpaid taxes of 1881, and later, under Act 96 of 1882, for the unpaid taxes of 1882 and 1888.. While so situated it was offered for sale under Act 82 of 1884, and adjudicated to the defendant Negrotto on the 14th day of August, 1888,. for the unpaid State taxes for the years 1876, 1877 and 1878, assessed in the name of plaintiff West. The city taxes for all the years from 1870 to 1879 were also due. At the date of the adjudication additional State and city taxes from 1880 up to and inclusive of 1888 were also due. The property was adjudicated to Negrotto under a bid made by him for one dollar, which he paid. Notwithstanding he failed to pay the State and city taxes due for the period between 1880 and the date of his purchase, the tax collecter gave him a deed to the property. This he should not have done, as under the law under which the purchase was made it was Ne-grotto’s duty, in addition to the amount Of his bid, to have paid all the State and city taxes then due. Under the third section of Act 82 of 1884, it was the duty of the tax collector to execute to each adudicatee a deed of sale by notarial act, but only when the bid was complied with. The notary public was not authorized to pass the act until he had evidence before him of the payment of all taxes, city as well as State. The purchaser by virtue of his bid and the adjudication had come to have (just as an adjudieatee at execution or succession sale) certain rights entitling him to a specific performance of the contract of sale by compliance with his bid, and he was entitled to a reasonable delay to make payment to the city of the taxes due to her, but (as was determined by this court in Remick vs. Lang, 47 An. 914) he could take nothing by an illegal giving to him by the tax collector of a deed of sale when he failed to comply with his bid. He was really without title until he had done so. Had the original owner, West, while matters were in that situation, made payment to the State of the taxes due to it on the property, and had the State officers thereupon permitted him to redeem the same though he was out of time, the tax purchaser, Negrotto, would not have been in a condition to call such action in question, he being in default and having no rights himself. West, under such circumstances, would have occupied the position of Remick in the suit of' Remick vs. Lang, but he did not do so. On the contrary, Negrotto, who from 1888 to 1893 had paid none of these taxes himself, went forward, paid the taxes and obtained a certificate of redemption on the 29th day of March, 1893.

When the city of New Orleans found that the title of the property had passed from the State to Negrotto, and that its way was therefore free to pursue remedies in enforcement of payment of its past due taxes, it found among those taxes those which had stood on its books since 1880, under the assessment in the name of West, which it had been the duty of Negrotto to have paid under the adjudication to him. It therefore proceeded to offer the property for sale at auction, and at the sale it bid it in itself on July 12, 1893, but this was after Negrotto had (though tardily) paid the delayed State taxes and had received the certificate of redemption we have spoken of. West, after this, went forward and paid to the city its delayed city taxes, and thereupon the city authorities gave him a certificate of redemption.

He has brought a petitory action against defendant, setting up and establishing the title held by himself at the time the property was adjudicated to the State. Negrotto set up the adjudications to the State, the adjudication to himself from the State, and the deed held by him thereunder. Plaintiff then, over defendant’s objection, offered in evidence the adjudication made to the city of New Orleans, in its proceedings against the property for the unpaid taxes and the certificate of redemption granted to himself by the city. The District 0ourt. rendered judgment in favor of the plaintiff for the property and in favor of the defendant on his reconventionai demand for reimbursement in case of eviction. Defendant appealed.

Plaintiff’s theory is, that his original title remained unaffected by ¡the tax sales. We have examined the adjudications made to the State, and we discover in them no ground for complaint. His real attack is on Negrotto’s rights, under his own adjudication from the State, and the certificate of redemption, subsequently granted him toy the State authorities.

The present plaintiff, West, says now what Lang said in the other case — that the State authorities were without power to permit this to be done at the late day it was done; that Negrotto having failed to comply with his bid, he obtained no standing at all by the adjudication to him; that he was an absolute stranger to the title, and payment by him could not confer or confirm title; that he ha i no title to redeem. That may or may not be true. Grant it to be true that the State authorities should have declined to receive payment from his hands, and should have refused a certificate, does that fact advance plaintiff at all?

If the various acts of adjudication of this property to the State were, in all respects, regular and legal and vested the title to the .same in the State, in what way would a failure by Negrotto to have paid, as he should have done, all taxes due at the time of his purchase redound to the benefit of West? The only effect of this noncompliance wouldhe to leave Negrotto without a title, but to leave the State itself as the owner of the property under the adjudication ¡made to it.

Negrotto’s failure to pay would not invest title in West. If Ne-grotto is improperly in possession under the tax collector’s deed (let it be granted improperly in possession), is not West’s attack against Negrotto, through a petitory action, successfully met by the fact that, even if Negrotto has no title, West himself has none, as his title has passed to the State. There can be no question on that point. In order to get into position as a plaintiff in a petitory action (under his original title) West would have to appear before us reinvested (regularly or irregularly) with title by the State, as Remick did in Remiek vs. Land. This he has not done. The State authorities have placed it out of their power to enable West to get into such position as a plaintiff by granting a certificate of redemption, not to West, but to Negrotto.

So long as the adjudications to the State stand they are interposed as walls, effectually blocking West in his attempt to reach Negrotto by reason of the weakness of his title, under the adjudication made to him in 1888, and the certificate of redemption which he holds from the authorities. West, in order to succeed in this suit, under his original title, would have to make a successful attack, not only upon the adjudication to Negrotto, but upon the adjudications to the State. This hé has not done. But, says the plaintiff, when the city found the property in Negrotto’s possession and its taxes unpaid, it had the right to proceed to enforce the same. It did enforce those taxes and it became the owner of the property by adjudication to itself, and any title which Negrotto might have had ai that time was cut off. The city being then the owner of the property, at a tax sale made by it in enforcement of taxes in the name of George West, had the right to permit West to redeem the property, and it did so, and therefore he (West) appears before us in this suit as holding the city title, which cut off Negrotto’s (if he had one), to which are coupled the rights belonging to himself by virtue of the city’s having permitted him to redeem. The weakness of plaintiff’s position is just at this point. The title, if it be a good one, as against Negrotto, who is in possession of the land, is not the title on which this suit was brought. Plaintiff expressly declared upon his original title, and to that title he must be confined in the present suit, as defendant excepted to evidence going to show any title other than the one on which the action was brought. We think the judgment erroneous.

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the adjudications made of the property in litigation herein to the State in 1883 and 1884, in enforcement of the taxes of the years 1881, 1882 and 1883, assessed in the name of George W. West, the plaintiff herein, divested plaintiff’s ownership in said property and vested the same in the State of Louisiana, and said fact stands as a bar to plaintiff’s action on his original title, but plaintiff’s rights, if any he has, under the adjudication of said property to the city of New Orleans, are hereby expressly reserved to him, they not being considered or included in this decree. Plaintiff’s demand is rejected, at his costs in both courts, with the reservation stated.


text:
    No. 12,149.
    State of Louisiana ex rel. Mrs. H. C. Evans vs. Hon. George H. Theard, Judge of the Civil District Court for the Parish of Orleans.
    When the issue between the parties is the interpretation properly to be given to and the eifect properly to follow from one of its own opinions and the District Court refuses to decide, the Supreme Court, so as to set matters at rest, will consider on application for writ of mandamus the case as one properly referred to it for immediate action. JSx rel. Construction Co. vs. Tax Collector, ante, p. 28.
    QN APPLICATION for Writ of Mandamus.

      Bouse & Grant, for Relatrix.
    Respondent Judge in propria persona.

      W. W. Howe for Executor and Intervenors, Respondents.
    Submitted on briefs April 15, 1896.
    Opinion handed down May 18, 1896.
    Relatrix, the administratrix of the succession of Mrs. Kate Clark Steers, alleges that Mrs. Steers, who was the wife of Schuyler B. Steers, died on the 1st of June, 1888; that her husband died on the 13th December, 1889. That his succession was opened in the Ci’fil District Court for the parish of Orleans, and is now being administered therein, and also in the Surrogate’s Court in Otsego county, in the State of New York; that a community of acquets and gains existed between said Steers and his wife; that at the time of her death he was possessed of a large amount of movable and immovable property, and that the succession of Mrs. Steers is a creditor of Schuyler B. Steers for the net half of his estate as it existed at the time of her death; that the executor of said Steers refused to recognize the rights of said succession of Mrs. Steers as a creditor, and that she, in her capacity of administratrix, brought suit against said succession in said District Court for the establishment and recovery of the amount due her; that the heirs of Schuyler B. Steers intervened in said suit and were admitted as parties thereto; that after trial relatrix’ demand was rejected and her petition dismissed; that thereupon she appealed to the Supreme Court, which reversed the judgment and remanded the ■cause to the court below, to be further proceeded with in due course of law; that afterward said cause was placed upon the docket, and after due course, reached and called for trial, but that prior thereto the executor filed an exception, reciting the language of the Supreme Court in its opinion, that the residuary interest in the community of the heirs of Mrs. Steers could only be ascertained by a settlement of the succession in New York and in Louisiana, averring that there had been no settlement in either, and prayed that the question of the settlement of the residuum, claimed by relatrix be relegated to some new or further proceeding, or that further proceedings therein be stayed until the settlement of the succession in New York, and the cause being then on the trial docket and fixed for "trial, the executor took a rule upon relatrix to show cause why the cause, as fixed, should not be stricken from the docket; said exception and rule came on to be heard and were argued — in consideration whereof the court ordered that the exception be maintained — the rule to strike the case from the trial docket be made absolute, and that the trial of the petition of the intervention and opposition filed by relatrix be stayed until the settlement of the defendant’s succession in Louisiana and in New York. ■ In view of the premises, relatrix prayed that this court grant a writ of mandamus, directed to the said judge, commanding him to reinstate said cause on his docket and to proceed to the trial thereof, and to hear and determine the same in accordance with the rules and practice of said court.
    In deciding the case, Succession of Schuyler B. Steers, 47 An. 1551, the court used the following language: “The facts in the record do not enable us to issue any decree as the community interest of the opponents (the succession of Mrs. Steers). The partnership, in which the deceased was a member, has not been settled, and there are many outstanding claims against the succession. Nor are we able to issue a decree in relation to the paraphernal funds of Mrs. Steers, alleged to have been converted by her husband. It seems-that she received five thousand five hundred dollars from her father’s succession, but we find no evidence that it went into the husband’s hands. She owned some shares in compress companies, but as these shares were acquired during the community, we are unable to say how or in what manner they were acquired by Mrs. Steers; whether purchased by her with paraphernal funds or given to her by her husband, in paymentof paraphernal claims. The residuary interest in the community of the heirs of Mrs. Steers can only be ascertained by a settlement of the succession in New York and in Louisiana.”
    The decree of the court was as follows:
    “ It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is now ordered, adjudged and decreed that a community of acquets and gains existed-in Louisiana between Schuyler B. Steers and his wife, Mrs. Kate Steers, during, the period of their residence in Louisiana to June 1, 1888, and that the plaintiffs and appellants, heirs of Mrs. Steers, be recognized as entitled to the residuary interest in the community which would have gone to Mrs. Steers; it is further ordered that the rights of said heirs, opponents and plaintiffs, be reserved as to the paraphernal funds and separate property of Mrs. Steers, alleged-to have been converted by her husband- and the executor. It is further ordered that this case be remanded to be proceeded with in due course of law, appellee to pay costs of appeal.” It is this judgment of the court that is referred to by the parties to the present proceedings.
   The opinion of the court was delivered by

Nicholls, C. J.

An examination of the decree of this court will1 show that the relatrix had resorted in the District Oourt to a double-proceeding, both inside of the succession proceedings. Saville, the executor, had filed a provisional account of his administration, ■showing certain amounts received and certain amounts disbursed by him. To this account, relatrix filed an opposition, alleging that the executor had failed to account for rents and revenues derived from real estate belonging to said succession and for the share of Schuyler B. Steers in the partnership of which he was a member; she also claimed for paraphernal property of the wife converted to his own use by the husband. The prayer of the opposition was in accordance with its averments.

After filing the opposition, Mrs. Evans brought a separate suit against the executor, alleging the domicile of Schuyler B. Steers and wife to have been in New Orleans at the time of the death of Mrs. Steers. Mrs. Martha Perry and others alleging themselves to be the heirs of Schuyler B. Steers intervened in these proceedings and joined the executor in resisting the claims of Mrs. Evans in her petition and in her opposition,- pleading the general issue, but specially admitting some of her allegations and specially denying others. They prayed that her demand be rejected. Mrs. Evans put this intervention at issue by answer. The parties seem to have dealt with the opposition and the direct proceeding as one and the same.

In the body of tbe decision of this court, in the case, we said: “ The most important fact — the only one at issue — that can be determined, is the domicile of Schuyler B. Steers at the time of the death of his wife. Comparing and analyzing the testimony in the record, we are of the opinion that on the 1st day of June, 1888, Schuyler B. Steers had his domicile in the city of New Orleans.”

Our decree was predicated upon this finding of fact.

The first question which suggested itself to us, in the present proceeding, was, as to whether relatrix had had recourse to the proper remedy, whether this was not rather a case for an appeal than one for a writ of mandamus. (St. Louis National Bank vs. Bloch, 44 An. 895.) We have resolved the doubt existing in our mind on that subject by the consideration that the matter, substantially at issue between the parties, is the interpretation properly to be given to and the effect to properly follow from one of our own decisions.

Relatrix claims that the District Court has given to our decree a construction which hampers and impedes the trial of the issues which she seeks to have presently disposed, of to a degree not warranted nor justified by the terms. The District Court admits that in adopting the course it has, it has not attempted to assert or exercise judicial discretion, but that it has acted exclusively upon the hypothesis that all discretion and control over the subject matter had been withdrawn from it, and under an obligation imperatively imposed upon it by our judgment to take no further action. Under the circumstances we think a decision of this matter can be properly referred to us for immediate decision, so as to set matters at rest at once should the court below have misconceived the scope of the judgment. (See State ex rel. Reynolds and Henry Construction Company vs. O’Kelly, Tax Collector, 48 An. 28.) We are unwilling to forestall and decide by anticipation any issue between the parties which would legitimately go to the District Court for determination, upon the remanding of the cause. Our decree recognized that a community of acquets and gains existed in Louisiana between Schuyler B. Steers and his wife, Mrs. Kate Clark Steers, during the period of their residence in Louisiana to June 1, 1888, and that the heirs of Mrs. Steers are entitled to the residuary interest in the community which would have gone to Mrs. Steers.

This court has repeatedly held that one who has no legal interest in a succession can not interfere in the administration. (Succession of DeArmas, 1 Rob. 461; King vs. Lastrappes, 13 An. 582; Field vs. Mathison, 3 Rob. 38; Succession of Floyd, 12 Rob. 197.) Our decree established as a fact that the heirs of Mrs. Steers had a legal interest in the settlement of the succession of Schuyler B. Steers, and through it the executor has been notified of the existence of such interest. In the administration of the succession he will, even for self-protection, have to act in reference to that fact. (Succession of Troxler, 46 An. 738; Succession of Gaines, 45 An. 1258.) We were informed through the mortuaria brought to this court that it had been opened in the State of New York, as well as in Louisiana, and that the succession had property in both States. We did not decide which was the main or which the ancillary succession. We do not think a decision of that question involved in this litigation is presently before us. ' There is, unquestionably, a succession opened here with a succession representative and property under his charge. His precise duty is pointed out by law. We have, in general terms, referred to it in the succession of Von Hoven, 46 An. 920 and 921, and Succession of Gaines, 45 An. 1238; 46 An. 252. The local interest which the heirs of Mrs. Steers have in the succession of the husband give them an unquestionable right to call upon the executor from time to time to account, to protect their interests from any action taken in the administration by which those interests would be prejudiced, to insist upon a reasonably speedy closing of the succession and to question the correct - ness of that account when rendered in so far as it might illegally and injuriously affect them. To what extent relief or opposition could go; over what ground it could legitimately extend, in what form, and in what proceeding it should be presented, would depend upon the facts of the particular case, and the circumstances under which it was made. A final account, under and through which the executor should propose to turn over the property and funds left in his hands after a full and complete administration, to the heirs or parties in interest, or an account in which he would propose to make a partial distribution to such parties, would, as we said in the Succession of Conrad, 45 An. 921; Succession of Gaines, 45 An. 1238, and in the Succession of Von Hoven, present a much broader scope for opposition than a provisional account or an ordinary administrator’s account, involving a mere payment of certain funds to specified creditors. (See, also, Succession of Thomas, 12 Rob. 217; Wood vs. Stokes, 13 An. 144.) It might well be, however, as the settlement of the community is affected through the administration of the husband’s succession, that a surviving wife in community or the heirs of a wife in community have a direct interest in the payments to be made and the funds out of which they were to be taken. Áli such questions have to be primarily passed upon, in view of existing conditions.

Whether or not the administratrix of the succession of Mrs. Fannie Steers was or was not justified in seeking to have determined the particular issues she was raising on an opposition to an executor’s provisional account such as was the one in the matter of which her opposition was filed; whether a partition of the community could be effected through an execútor’s account, either provisional or final, or whether there should be a direct action instituted between the parties in interest holding matters in abeyance inside of the succession, until the partition was effected; whether the administratrix of the succession of Mrs. Steers was or was not the proper person to stand in judgment for a proceeding of 'that character; whether the institution of the second or direct proceeding by the administratrix, which we have herein referred to, against the executor of Steers, taken in connection with the intervention of the heirs of Schuyler B. Steers in that proceeding and the issue joined on that intervention by the administratrix of Mrs. Steers, constituted or did not constitute a quasi partition suit, are questions (as are all similar questions) left open by our judgment to be passed upon, as presented to the District Court in the exercise of judicial power in original actions.

We did not say that the executor of the succession of Schuyler B. Steers should not, at some stage of his gestión, account for the fruits and revenues of the real estate, in Louisiana, nor that the administratrix of Mrs. Steers was without capacity or authority to insist that this should be done, nor did we undertake to interfere with the judgment of the District Court, as to the time at which, or the circumstances under which, this should be done. The sentence in our opinion, which the court below believes had the effect of paralyzing its discretionary action, in respect to all these matters, was a mere incidental remark in the body of the opinion going to show the dependence which the administration in one -State might have upon that in the other. It might, for instance, be, that community debts should have been presented to the New York executors, and .been, by them, paid out of the funds of the separate estate of Schuyler B. Steers in that jurisdiction. Such a fact would, necessarily, have effect upon the rights of parties in the settlement of the community here.

It was not our purpose to convey to the District Court the idea that that fact should control it, or the parties in bringing the succession of Steers in Louisiana to a prompt, full and complete liquidation and settlement, as far as this result could be reached here; that legal proceedings here should be stayed until the New York succession should be closed; or that the heirs of Mrs. Steers should be remitted to New York in order to have the affairs of the community ascertained and fixed in that jurisdiction.

We do not feel authorized, in the present proceeding, to issue a mandamus to the District Court, ordering and directing what particular course it should pursue in reference to the succession of Schuyler B. Steers and the community, as the position it has taken is one based exclusively upon supposed obedience to existing directions to it, under our judgment in the case. 15 S. E. Rep. 99-100-103; 41 N. W. Rep. 743; 104 N. C. 739-742; 24 Am. Law Reg. 531.

We have concluded to direct the District Oourt to replace the case upon the trial docket, reopen the questions raised upon the opposition and rule, referred to herein, and dispose of them, and the District Oourt is hereby so instructed and directed.


text:
    No. 12,121.
    Joseph Vincent, Tutor, vs. Morgan’s Louisiana & Texas Railroad and Steamship Company.
    Parties having occasion to crossa car track must hear in mind that inthemanagement and business of railroads special trains are liable to be sent forward at any moment, and that the rule that a person before attempting to cross a track must stop, look and listen to guard against danger, is not confined to certain hours of the day or night, nor limited to particular trains.
    APPEAL from the Nineteenth Judicial District Oourt for the Parish of Iberia. Voorhies,. J.

      G. H. Mouton and L. O. Hacker for Plaintiff, Appellee.
    D. Gaffery & Son for Defendant, Appellant.
    Argued and submitted April 23, 1896.
    Opinion handed down May 18, 1896.
    Action by the plaintiff in his capacity as natural tutor of the minor, issue of his marriage with his deceased wife, Rose Olivier, who was killed by one of defendant’s trains.
    The jury returned a verdict in favor of plaintiff for ten thousand dollars. Defendant appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 16th of March, 1893, the wife of Joseph Vincent, the plaintiff, was returning in a buggy to her home near Olivier Station, in the parish of Iberia. Accompanying her was her sister ana her sister’s child. The public road near Olivier (which is a flag station of defendant’s road) runs nearly parallel to the company’s tracks, but when almost opposite to the station it makes an abrupt turn at or near Veazey’s store, and crosses the main track to the other side. The day was cloudy and a strong wind was blowing. Mrs. Vincent was driving. Reaching the turning point in the road she drove directly to the point of intersection of the road with the track, without stopping, ■ and as the horse was crossing the track it was struck by the locomotive attached to a train of cars operated by employees of the defendant company. The horse was killed, the baggy was entirely demolished and Mrs. Vincent (mortally wounded) died a few moments after the accident. The sister and her child, after lingering a short time, also died. The train with which the buggy collided was not the regular passenger, but a special train on inspection duty. It was running just before it passed the intersection of the public road with the track at Olivier Station at about forty miles an hour. The whistle of the locomotive was blown at or near the whistling post, four times, according to custom, and again near the crossing. The bell seems to have been also rung. The appliances of the train were in good condition and the employees of the company at their respective posts. We have examined the record carefully, and the examination so made forces us to the conviction that the verdict of the jury and the judgment based upon it are contrary to the law and the evidence. We have found no fact, either of omission or commission on the part of the company’s employees which could give rise to an action of damages against the defendant. We find, on the contrary, that the unfortunate accident, by which the plaintiff’s wife came to her death, is directly traceable to heedlessness and want of care and proper caution on the part of the deceased.

Plaintiff’s pleadings refer to the train as being a special one, the speed at which it was running as being dangerous, particularly in view of the darkness of the day; to the speed not having been checked as the cars approached the crossing and to obstructions to the view along the line of road from Veazey’s store to the crossing. The evidence shows that along the bar fences, between which the public road ran, were a few scattering trees of small size and also some weeds between eighteen inches and two feet high, but that they left, none the less, in clear view, any train approaching npon plaintiff’s track, particularly to those sitting in an elevated buggy, and that the track itself was raised above the general level of the surrounding country. The approach to the main tiack from Veazey’s store being almost perpendicular, all that a person sitting in a buggy would have had to have done in order to ascertain the ■exact situation was to have looked to the right across the side of the buggy, if the curtain on that side were raised, or if it were down, to have leant forward a little and looked across. It so happened that the curtain on the right side (the very one which should have been up) had been lowered in consequence of a threatening rain and the persons inside of the buggy, in spite of that fact, drove forward without attempting in any way to guard against possible danger. Mrs. Vincent, the evidence shows, lived near the railroad, had often crossed this identical track, and was familiar with the surroundings. The distance between the store and the crossing was considerable, and furnished ample time and opportunity for examination and discovery, but no precautions, it seems,were taken. In order to reach the track it was necessary to move up an incline leading to the track, but no halt was made when almost the slightest touch upon the reins could have held the horse in check. We are satisfied the track was reached before a suspicion of danger entered the minds of any of the party. Did the simple fact that the hour for one of the regular trains had passed and that for the other had not been reached warrant the belief that no train was likely to pass? It has been held that it does not; that parties having occasion to cross a track must bear in mind that, in the management and business of railroads, special trains are liable to be sent forward at any moment, and that the rule that a person before attempting to cross a track must stop, look and listen to guard against danger is not confined to certain hours of the day or night, nor limited to particular trains. A railroad track of itself has been held to be a warning of danger. Hinken vs. Iowa Cent. Ry. Co., 66 N. W. 883.

Plaintiff, in respect to the obstruction alleged, overlooks the fact that if such obstructions really marked the view that they themselves were as much concealed from the view of the defendant’s employees as the latter were from the persons in the buggy, and that the very fact of the existence of the same imposed additional caution upon parties approaching the track. Beach on Contributory Negligence, p. 203, Sec. 65; Patterson’s Railway Accident Law, Sec. 177.

We do not understand plaintiff’s allegations as charging that the employees of the railroad saw the approaching buggy, or that by the exercise of such reasonable care as was consistent with their duties they might have seen them any sooner than they did. Their allegations as to the difficulty under which they themselves labored in seeing surrounding objects by reason of the misty cloudy weather and the intervening trees and weeds negative the idea of such a claim hiving been advanced on their part against the defendant as a cause of action. There is no attempt to show that defendant’s employees failed in their duty from the moment the danger was seen up to the time of the accident, nor is there any charge that the defendant was in fault in respect to any of the appliances connected with the train. Their real contentions are that the whistle was not sounded, the bell was not rung, the train was moving at a dangerously fast rate, and its speed was hot slackened as the cars approached the crossing. The' signals, as we have said, were properly given, but they were not heard — possibly because the wind was high; possibly because the ladies in the buggy had their hats on, covered with their veils; possibly because engaged in conversation and apprehending no danger they gave no heed to what was passing around them. We have no reason to suppose that the accident would have been avoided had the train been moving at a slower rate than it was — it is not so charged. It is referred to as having been dangerously fast. Plaintiff charges that the employees of the defendant had no right to move the train at as fast a rate as it was going on a misty and windy day, and knew, or must have known, of the danger of a collision. We do not find that the train was moving at a faster rate than that at which passenger trains frequently move between regular stations. Olivier was only a flag station, and this particular train had no reason to stop there, or to expect that it would be stopped at that point. The evidence does not show such a condition of things as the allegations charge — the day was dark and somewhat misty and a rain was threatening, but the hour was just after noonday, and all objects were visible. The evidence discloses the existence of no fact outside of the alleged fact itself that the wind was high and the day was not bright, tending to show that it was the engineer’s duty to slacken the speed at which the train was moving.

It has been said in other jurisdictions that trains must be run with speed on dark nights and on misty days, and that doing so raises no inference of negligence in the absence of special facts going to call for particular precaution. Omaha R. R. Co. vs. Wright, 66 N. W. 842. Trains are run by schedule, one train conforming itself to the movements of the others, and it would be a dangerous rule to establish that weather conditions in one particular neighborhood should control and regulate the speed of the trains in a special vicinity. It is not shown that the lane at Olivier crossing is a much frequented crossing, or that there were grounds for supposing that per- ' sons proposing to cross there would not be governed by ordinary rules of caution and prudence.

Appellee presses upon us that the fireman was firing up, as he reached the whistling post, and that he should not have been doing so, but should have desisted until the crossing was passed. That if he had been looking out on the left of the cab he would have seen the buggy approaching .the crossing sooner than he did. The fact that the fireman was engaged in putting in coal as the train approached the whistling post was a fact shown by his own testimony and was not looked to or assigned as furnishing any ground of complaint in the pleadings as we have said. There was no attempt to show that in firing up at the time he did, he was not at that time doing exactly what was necessary to be done in the line of his duty. If he had been looking out at that time there would have been nothing to indicate, so far as we see from the evidence, that the parties inside the buggy would attempt to cross over the track directly in front of a train rapidly approaching them and directly visible to them had they looked.

We are of the opinion that the deceased was guilty of such contributory negligence in this case as to cut off the claim for damages..

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment appealed from, based therein, be and the same are hereby annulled, avoided! and reversed; and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected with costs, in both courts.


author: Breaux, J.

text:
    No. 12,145.
    Gilbert Hebert vs. George L. Mayer and Sheriff.
    The protection of the family is the principal object of exemption laws.
    It secures a place of residence which the debtor may improve and make comfortable, and where the family may be sheltered beyond the reach of financial misfortune.
    Hence, the exempting statutes should not be too strictly construed.
    Prior to the debt for which he was seized and continuously since, the debtor was the head of a famiiy and contributed to their support.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Coco, J.

      W. Hall and E. J. Joffrion for Plaintiff, Appellee.

      A. J. Lafargue and H. O. Edwards for Defendants, Appellants.
    Submitted on briefs May 19, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by

Breaux, J.

The exemption claimed by the rplaintiff existed prior to the Constitution of 1879, under the law of 1865.

To retain the right of homestead (under the provisions of the latter) the former required dedication as a homestead by the owner, by a public notice in conformity with statutory direction.

The record shows that the plaintiff complied with the condition precedent, to the right to claim exemption, by recording his declaration.

The defendants challenge .the correctness of the declaration, to the extent only that the plaintiff claimed to have been the head of a family and that he had some one dependent upon him for support. This case has been twice before us on appeal. Hebert vs. Mayer, •47 An. 563. The question is now limited to whether there was any ■one dependent for support upon the plaintiff within the intendment •of the law securing exemption? The ownership and occupancy of the property by the debtor are not questioned. The claim is that ¡he, the debtor, was not the head of a family and had no one dependent upon him for support.

The relations between plaintiff and his wife, colored, date from the last days of slavery in this State. He is a negro. He testifies that children were born to them prior to their marriage in 1869, and several since. His first wife died many years ago. He reared the children. They stayed with him until their marriage, and they were •dependent upon him for support.

One of the offspring died, leaving a son. He was taken to the house of the plaintiff, his grandfather, and he also was reared to manhood on the property claimed as a homestead.

The plaintiff was married a second time, in 1892. To the date of this marriage there may have .been gaps in the dependence of the children and grandchild. The evidence upon this point is somewhat conflicting. Its weight sustains the claim of support, at all times. Granted, that there were short periods of time in the many intervening years during which the dependence of a member of the family was not shown to have .been direct, the exemption is not thereby lost. If, considered as a whole, the head of a family has reared a family who were dependent upon him for support, the exemption remains, if as in this case there were dependent members ■of the family on the day of the seizure of the property by the creditor and the dependence has every appearance of having been continuous from the first.

Here, at the time the debt was created, the plaintiff was a married man and the head of a dependent family.

Whil} it is true that the debtor must be the head of the family or have some one dependentuponhimfor support — one to whom he owes ■support as a moral duty, the law in its humanity does not seem to contemplate that the homestead exemption shall cease immediately after the death of the dependent member of the family, or shall cease because a dependent member of the family has become old enough to earn something toward the support of himself and the parent; by whom he hás been reared.

The exception of the homestead rests upon the theory that the obligation to support the person to whom support is due is a higher obligation on the part of the debtor than the payment of his debts. It is of such a high character that it must have a continuing effect for a short time, at least, after the head of the family no longer has some one to support.

The purpose, evidently, was to secure a “Home” beyond the reach of financial misfortune, around which gather the affections of the family; the greatest incentive to virtue, honor and industry.

Entertaining this view of the purpose of the statutes, if. the propositions advanced by the defendants were supported, as contended, by the evidence, the plaintiff would none the less have a right to the exemption he claims.

• The evidence supports the good faith of the plaintiff. We mean by good faith that nothing shows that members were brought within the household for the purpose of avoiding the payment of his debts. The design manifestly is that the debtor shall not obtain credit as owner of property subject to execution and afterward withdraw it by converting it into a homestead. This does not seem, at any time, to have been plaintiff’s purpose.

The judge who tried the facts in the first instance found that plaintiff was entitled to the exemption. We agree with his finding.

It is therefore ordered and decreed that the judgment appealed from is affirmed, at appellants’ costs.


author: Nicholas, C. J.

text:
    No. 12,100.
    Henry Otis vs. James Sweeney.
    A general allegation in a petition of a threatened injury,without any announcement as to what the supposed injury will result from or as to what it will result in, is totally insufficient to justify an injunction.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. S. Benedict and J. J. McLoughlin for Plaintiff, Appellant.

      T. M. Gill for Defendant, Appellee.
    Argued and submitted May 6, 1896.
    Opinion handed down June 1, 1896.
    In December, 1885, the plaintiff filed a suit in the District Court for the parish of Orleans, in which he alleged that he was the owner of twelve certain lots of ground in the city of New Orleans, which he described, together with all the buildings, improvements, rights, ways, privileges and appurtenances thereunto belonging, especially all right of alluvion or accretions of batture appertaining thereto; that he and the authors of his title, through whom he claims by subrogation and warranty, had been in continuous and uninterx’upted possession thereof for over one hundred years, and he was then in possession of the same; that by reason of his ownership of said property on the river bank and of the batture in front of said property he had the right to build wharves, cluster pilings, or any other constructions in front of said property and to ■use the same when so constructed; that he constructed a wharf in front of said property, as he had a legal right so to do; that defendant threatened to interfere with the lights of petitioner in the-property on the premises, under and by virtue of a contract claimed to have been made between him and the city of New Orleans; that said contract was illegal, null and void for various reasons.
    An injunction issued under an order of tie District Oourt, following the prayer of the.petition to a certain extent, but enjoining specifically the defendant, Sweeney, from interfering with the plaintiff, Otis, in the mooring of his rafts and other water ei'afts to the wharf he had built in front of his property. Defendant interposed an objection of res judicata, based upon the pleadings and judgment in the •ease of James Sweeney vs. Henry Otis, No. 7368 on the docket of the Civil District Oourt, and iurther excepted that the Oivil District •Oourt was without jurisdiction and wholly incapacitated to grant the injunctio nor in any manner to entertain the suit of the plaintiff; that the writ of injunction was in violation of Art. 11 of the State Constitution; that there was neither a cause of action nor a cause for an injunction set forth in the plaintiff’s petition.
    On the 25th of February, 1891, the District Court rendered a judgment sustaining the exception of res judicata and dismissing the •suit; on appeal to this court the cause was remanded. Otis vs. ■Sweeney, 43 An. 1073.
    The exceptions having been tided a second time and submitted, the District Oourt excluded the evidence offered by plaintiff, sus- ■ tained the exceptions, dissolved the injunction and dismissed the suit, and plaintiff again appealed.
   The opinion of the court was delivered by

Nicholas, C. J.

In the present case the District Oourt passed not •only upon the exception of res judicata, but also upon the other ex-eeptions filed by defendant. These exceptions refer not only to the demand proper, but to the injunction which accompanied it. A very considerable portion of defendant’s brief is taken up in discussing the proposition that the District Court was without power or authority to enjoin defendant from bringing suits against the plaintiff Otis, predicated upon the contract which he had with the city. This discussion assumes a broader scope to the injunction than its terms warrant. It is not to be supposed that the District Court would have attempted to restrain defendant from claiming judicially what he believed himself entitled to in view of the decisions of this court in Butchers’ Benevolent Association vs. Cutler, 26 An. 500; Brott vs. Eager, Ellerman & Co., 28 An. 262; State ex rel. Sweeney vs. Judge, 39 An. 621, and State ex rel. Sweeney vs. Voorhies, Judge, 40 An. 1. General as are the terms of the injunction they do not extend as far as defendant supposes them to do. In view of this fact it is unnecessary to consider the injunction from that standpoint.

Defendant’s exception that plaintiff’s petition discloses no cause for an injunction and that it should be dissolved is substantially a motion to dissolve on the face of the papers. We find no allegation in the petition which, in our opinion, would call for an injunction. Plaintiff alleges that “the defendant threatens to deprive petitioner of the use of his property, disturb him in the actual and real possession which he has had for more than one year, and of his rights of possession, ownership and enjoyment thereof, and thus deprive petitioner and impair the rights granted to him under the laws and Constitution of the United States and of the State of Louisiana, “ but there is not one single word in the whole petition going to explain or to specify what the threats-of the defendant were, to which he alludes, or what they cover. He says that the defendants threaten to interfere with his rights in the property described in his petition, under a contract with the city of New Orleans, which he declares to be inoperative, null and void as to him, but in what manner this interference is to be made or in respect to what particular right this interference is expected to take-place, we are left completely in the dark. ' A general allegation of a threatened injury without any announcement as to what the supposed injury will result from, or as to what it will result in, is totally insufficient to justify an injunction. No issue is raised by plaintiff’s petition. Defendant does not know either what he is expected to assert or what he is expected to resist. Plaintiff asks that Sweeney be enjoined from doing a great many things without alleging that he has ever advanced any claim to do the things which he seeks to have him prohibited from doing. We find a prayer for a judgment for twenty-five hundred dollars damages, wi hout any direct allegation that he has been injured or damaged, and without any attempt to explain what the facts were from which injury or damage arose, nor what the injury or damage complained of is. The claim for injury and damages, as it appears in the pleadings, is without any basis on. which to rest. The injunction, in our opinion, was properly dissolved. The objections to the pleadings, which we have considered above from the standpoint of an injunction, apply also to the demand proper which plaintiff has filed. It is impossible for us to ascertain from the petition the subject matter or the ground of his complaint. The only affirmative act set forth as having been done by the defendant, from which we could imagine damages could arise, is the institution by him against the plaintiff of thirty-two suits. Assuming that the bringing of a multiplicity of suits by a plaintiff against the same defendant could give rise to a claim for damages against the plaintiff bringing them, neither malice nor want of probable cause, nor want of legal right to bring the suits has been charged in this instance against the defendant. We do not regard the claim for damages as a real claim. Plaintiff has no interest in attacking defendant’s contract with the city of New Orleans, unless he can connect himself legally with the right of attack and trace some injury to himself from the contract. If we throw out of consideration plaintiff’s claim for twenty-five hundred dollars we find no allegation of injury in the petition to support the present suit.

This conclusion having been reached, the exception of res judicata passes out of the case. We are not called on to say whether the judgment of the District Court in the case of Sweeney vs. Otis determined not only for the purposes of that particular demand and that particular court the right of Sweeney to collect wharfage against Otis as against the particular defences set up by the latter,, or whether it would only serve in that court as a precedent for other cases of a similar character which might be brought. The District Oourt has no superior limit to its jurisdiction, and it had power and authority to pass upon the question of the nullity of Sweeney’s contract, or the scope of that contract, had such questions been before it by direct action. In the particular case referred to the question was presented purely as a defence, and was passed upon incidentally and collaterally, in order to reach a conclusion and decision upon the liability of Otis to Sweeney for an amount of two hundred and fifty-six dollars for wharfage dues predicated upon a right claimed by Sweeney under a contract with the city of'New Orleans.

The appeal to the Court of Appeals was dismissed, as we have already slated.

A discussion of this subject will be found in Wells on Bes Judicata, Chapter XVI, subdivision “Directness of the Issue in the First Action,” and alluded to in Succession of Winn, 30 An. 702; State exrel. Pugh vs. Judge of the Twentieth Judicial District, 33 An. 1385, and Succession of Winn, 33 An. 1396; Vinet, Executor, vs. Bres & Richardson, recently decided.

The judgment appealed from is hereby affirmed^


author: Watkins, J.

text:
    No. 12,136.
    The Texas & Pacific Railway Company vs. P. B. Compton et al.
    The plaintiff having by injunction sought to restrain the parochial authorities from so altering the route of a public road as to cross its tráete and right of way against its will, without making any demand for damages or other compensation, this court is without jurisdiction ratione material, and the appeal must be dismissed on the motion of the appellees.
    A PPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      M. C. Moseley, for Plaintiff, Appellant.

      Phanor Breazeale, District Attorney, and L. J. Hakenyos for Defendants, Appellees.
    Argued and submitted May 18, 1896.
    Opinion handed down June 1, 1896.
   On Motion to Dismiss Appeal.

.The opinion of the court was delivered by

Watkins, J.

This is a suit by the railroad company to restrain^ by injunction, the parochial authorities of Rapides parish from interfering -with its roadbed, track and right of way, which form part of its property and franchises, by crossing and traversing same by a public road or thoroughfare to its great inconvenience and in violation of its rights and against its expressed wishes.

Its declaration is that there is at present, and has for a great while existed, an adequate and sufficient public thoroughfare, in use by the public, which runs parallel with its roadbed and track, at the point designated, and that no other is necessary for any purpose. That on account of said highway having been permitted to fall into a bad condition and to become unsuited for a public thoroughfare, through the failure of the parochial authorities to keep it in repair, the defendants have conceived the idea, and undertaken to carry same into effect, of so changing the route of said public road as to make it traverse or cross its track at two different points,- in close proximity to each other, and that same are unnecessary, will be expensive to the company and an impediment to the free use of its tracks, and will increase the chances of accidents and consequent injuries to the passers by the thoroughfare.

After answer filed and trial, there was a judgment rendered in favor of defendants, and the plaintiff has appealed.

Notwithstanding great elaboration of detail, there is no moneyed demand in the way of damages, either present or prospective, contained in either of plaintiff’s petitions, and no property right of any kind for which a judgment is requested. The suit presents a controversy as to the right of the defendant, in reconstructing and changing the route of a public road, to pass same over its right of way. In the nature of things, the value to the plaintiff, of this right of servitude of way, is of inconsiderable value in dollars and cents.

It is apparent that a judgment of this court, in favor of either plaintiff or the defendant, would not involve anything or right of the value of two thousand dollars; and it is therefore evident that this court has no jurisdictionVaficme materias of the matter in dispute, and, consequently, plaintiff’s appeal is dismissed.


author: Miller, J.

text:
    No. 12,135.
    W. N. Villavaso et al. vs. Their Creditors.
    The purchase by the lessors at the syndic’s sale of the right of occupancy of the leased premises, subject only to their claim for unpaid rent, does not cancel the lease with respect to rentpaid by the application of the proceeds of movables subject to the lessor’s privilege, and brought by them at the sale. The case is discriminated from Bartels vs. Creditors, 11 An. 433. See also 14 An. 213; 17 An. 174; 37 An. 587; 39 An. 743; 40 An. 267.
    Such a purchase binds the lessor only for the amounts bid for the right of occupancy and cancels the lease so far as respects the unpaid rent. C. C., Art. 2217 et seq. Ibid.

    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Frank L. Richardson for Syndic, Appellant.

      Frank N. Butler and Frank N. Butler, Jr., for Daniel Breen and others, Opponents, Appellees.

      Horace E. Upton and Anatole A. Ker for Briede and Ditmar, Opponents, Appellees.

      H. G. Dupré, Attorney for absent creditors, Appellee.
    Argued and submitted May 9, 1896.
    Opinion handed down May 18, 1896.
   The! opinion of the court was delivered by

Miller, J.

This controversy is before us on the appeals of the syndic and of creditors of the insolvents from the judgment of the lower court on the opposition to the syndic’s account.

The property surrendered mainly consisted of the insolvent’s stock of goods, in leased premises, the leases having long periods to run, and the rents to become due under these leases exceeding the value of the stock. At the sale ordered by the court the lessors became the purchasers of the stock, retaining the amount of their bid on a'ccoünt of the rent due and to become due. Crediting these purchases there remained the liability for the unexpired portions of the lease; to Briede, one of the lessors, nine hundred and twenty-six dollars, and to the other lessor ten hundred and fifteen dollars. The leases stipulated that any default by the lessors should mature the amount of the rent’ for the full term, and this was doubtless, the reason the syndic permitted the lessors .to retain the proceeds of sale instead of receiving from the syndic the monthly rent as it became due. In this condition, under the order of the court the syndic offered for sale the right of occupancy of the premises for cash, the purchaser besides to assume the amounts to become due under the leases, that is, nine hundred and twenty-six dollars on the lease from Briede and ten hundred and fifteen dollars on the lease from Ditmar. At the sale, Briede bought the right of occupancy of the store he had leased, for the price of two hundred and ninety dollars, or six dollars and seventy-five cents for the forty-three months the lease had to run, and Ditmar bid one hundred and sixty-four dollars, or three dollars and fifty cents for the same number of months hi3 lease had to run. The syndic then filed his account. His theory seems .to have been that Briede by his bid became the debtor for two hundred and ninety dollars for the right of occupancy, and for the assumption of nine hundred and twenty-six dollars for the unexpired term of the lease, and that Ditmar became debtor for one hundred and sixty-four dollars for the right of occupancy and one thousand and fifteen dollars for the assumption of the rent for the unexpired portion of his lease. These so-called assumptions, it will be perceived, were of amounts which, if they became due, would have been demandable by the lessors, the purchasers. By charging the lessors with the proceeds of the property bought by them, and with the amount of their bids, and by credits for the rents, the syndic placed Briede on the tableau as a debtor for six hundred and thirty-two dollars, and Ditmar as a debtor for one thousand one hundred and seventy-nine dollars. This .brought oppositions from both, in effect insisting they could not be charged with the assumption of rent accruing to themselves, and maintaining all they owed was the bids for the right of occupancy. There was an opposition from creditors, claiming that the purchase of the right of occupancy by each lessor canceled his lease, and hence that the amounts derived from the sale of the stock in the leased premises and retained by the lessors should be placed on the tableau for distribution. The judgment of the lower court main-tamed the oppositions of the purchasers to charging them with liability for the assumption of rent, dismissed the opposition of the creditors, asserting that the proceeds returned by the lessors should be taken from them and distributed to the creditors, and directed some unimportant modifications in the account, and the controversy is, as already stated, here on the appeals of the creditors and syndic.

The leading proposition discussed is the effect of the purchase by the lessors of the right of occupancy of the leased premises. It will be readily understood that by the purchase of a lease by the lessor, he becomes lessor and lessee, and as he can not owe rent to himself, confusion takes place and the lease is extinguished. If the lessors in this case had bought the lease they could not have demanded rent from the syndic for the unexpired terms. Civil Code, Arts. 2217 et seq.; Bartels vs. Creditors, 11 An. 433. In this last case the lessor, ¡manifestly contemplating no such result as losing his rent of the premises leased to the insolvent, made an unqualified bid for the lease offered by the syndic for sale. The court held the purchase forfeited all claim of the lessor against the syndic of his lease for rent for the unexpired term, and the lessor owed his bid besides. This hard condition led to the dissent in that case, that the lessor did not lose the rent, because he had not by his purchase expressly assumed that rent. It is clear this decision has no application to this case, in which there has been no purchase of a lease, and no assumption of any rent, except to the extent to be noted further along, exerting no influence on the proposition of the opponents. Here, the purchase was simply and only of the right of occupancy subject to the rent unpaid, nine hundred and twenty-one dollars and one thousand and fifteen dollars. The Bartels case has been followed by other decisions, and these as well as other cases exhibiting phases of the question have had our attention. Thus it has been held that the lease is canceled when the premises are subsequently destroyed, or when by the act of the lessor the lessee is deprived of possession, and the effect of the purchase of the lease by the lessor has been considered and the same conclusion reached as in the earlier cases of Young and Bartels. Brinton vs. Bates, 17 An. 174; Lehman vs. Dreyfus, 37 An. 587; Schwartz vs. Saiter, 40 An. 267. But it seems to us that none of these decisions support the contention of the opponent, that the lessors by their purchase of the right of occupancy, subject only to unpaid rent, forfeited their right to rent practically paid to them, recognized by the account filed and impliedly by the order and advertisement under which the lessors bought and by which their obligations are to be measured. The difference between buying a lease and purchasing the right of occupancy merely was drawn in Walker and McVean vs. Dohan, 39 An. 743. We find no warrant to hold that the purchase of the privilege of occupancy offered, with no reference to liability under the lease, imports any obligation on the part of the purchaser except to pay his bid. In this case this view finds additional support in the order of sale, the advertisement and the circumstances under which the right of occupancy was offered. The rent for the full term of the leases, except the residue of one thousand and fifteen dollars and nine hundred and twenty-six dollars, had been provided for the sale of the stock subject to the lessors’ privilege, the proceeds retained by the lessors and carried on the account as applied on the rent. The right of occupancy, subject only to the remnant of rent to become due, was an asset of the insolvency. That asset it was proposed to realize. Hence, the petition, the order and advertisement for the sale of the right of occupancy for cash, free from all claims except the unpaid rent. The fair import of these terms was that the syndic offered the right subject to the encumbrance stated. If the lessors bought, they assumed or bought subject to the rent due themselves. If a third person bought., it was subject to the lessor’s unpaid rent, to be paid them when it became due. Nothing was to come to the syndic except the bid for the right of occupancy. Neither under the law without the terms, or under the terms, is there the basis to' hold the purchasers bound to restore the proceeds applied to pay the rent, and in view of the well-defined terms constituting their contract, to hold them liable for more than two hundred and nineiyfour dollars bid by one, and one hundred and sixty-four dollars bid by the other would be simply to create an obligation not arising under the law, never contemplated or resting on any consent express or implied. The opposition of the creditors seeking to charge the purchasers with the proceeds of sale of the stock was therefore properly sustained.

Undoubtedly, the purchase subject to their own claim for unpaid rent canceled that demand. That effect was wrought both by the law under the principle of the Bartels case and the express assumption, an element lacking in that case. Bartels vs. Creditors, 11 An. 436. After that purchase the syndic owed them nothing; they had been paid, except for the residue unsatisfied, but that was canceled by their purchase. Nor did they owe anything under their bid, except the amounts bid for the right of occupancy. We can therefore find no basis for the charge against them in the account of the unpaid rent due to themselves. Buying subject to their own claim for rent did not make them debtors to the syndic for the rent. The opposition to being charged in the account with amounts due themselves was properly sustained.

We have stated our conclusions; the lessors owe to the syndic the amounts bid for the right of occupancy, that is, two hundred and ninety dollars and one hundred and sixty-four dollars. With this modification charging them with these amounts the judgment of the lower court, which includes the direction for a new account on the lines of the decision of the lower court and of this opinion, is affirmed.


text:
    No. 12,098.
    Joseph Henry et al. vs. Brackenridge Lumber Company, Limited, et al.
    Indirect allegations that the officers of a corporation against whom suit has been brought “had failed in their duty in certain respects,” and ** had not taken due precautions to ascertain the fitness of an employee before placing him in charge of dangerous machinery,” are insufficient to charge such officers with liability, when it is not alleged what part, if any, said officers were called on to take in the premises within the scope of the duty imposed upon them by virtue of their office, and wherein they had failed in the performance of such duty.
    'The mere fact of an accident does not carry with it a presumption of negligence. The facts and circumstances connected with the accident must be shown so as to enable the court to trace results to definite causes.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      Benjamin Riee Forman for Plaintiffs, Appellants.

      Dart & Kernan for Defendants, Appellees.

      Argued and submitted April 21, 1896.
    Opinion handed down June 1 1896.
    Plaintiffs, the father and mother of George E. Henry, deceased, claim frorn the defendant corporation, and its officers and agents, Edward F. Braekenridge, its president; Charles E. Brack - enridge, its' treasurer; V. A. Longacre and James J. Green, its foreman and superintendent, the sum of twenty-five thousand dollars. That about April 17, 1895, their said son, a lad of about sixteen years of age, employed by defendants in their factory, was, by the carelessness and negligence of said defendants, horribly mangled, and after suffering great pain and agony of body and mind, he died from the injuries then and there received, and that the defendants were at fault and negligent at the time of the injury and killing of the son of petitioners, which fault and negligence caused his injury and death. (1) In having their factory where he was employed and at work constructed in a defective and dangerous and unskilful manner; there was not a sufficient space between the floor and the shaft, nor between the shaft and the roof; nor between the floor and the roof; the machinery and appliances defective and in bad order and repair; a gum belt in bad ■order and repair was used, when a leather belt in good order would have been safer; ordinary prudence and a proper construction would have required a support for the belt so as to lift it off the shaft when being repaired; proper prudence and care required that the shaft shonld have been stopped while the belt was being repaired and placed in position; dangerous machinery of this character should have been placed in charge of a competent mechanical engineer, but the defendants had failed in their duty in all of the respects above stated and had employed to have charge of said machinery said James Green, who was not a mechanical engineer and was grossly incompetent and unfit for his position, and the other •defendants were at fault in not taking due precautions to ascertain his fitness before placing him in charge of such dangerous machinery, ■and this they did out of parsimonious economy; .the said George E. Henry was without fault or negligence on his part at the time he was injured and ignorant of his danger and an inexperienced youth when he was ordered by said Green (his superior) to hold the belt while he (Green) laced it, when the shaft and other machinery was still in motion and revolving at a highly dangerous rate of speed, when by reason of the fault and negligence above detailed, the belt being of gum, and it and the machinery being then and there in bad order and repair and the space being too short, and all these things combined with the ignorance and carelessness of Green in placing an immature boy in so dangerous position when the shaft was rapidly revolving at a highly dangerous rate of speed, the gum belt caught on and was twisted on the rapidly revolving shaft, threw the said George E. Henry with great violence against the roof and mangled and crushed his body, so that suffering great agony, he died. In order to suppress and conceal the evidence of their carelessness, the defendants destroyed his shoes and clothing; they could have prevented the said injury and did not do so. The other named defendants were the vice principals of the corporation and by their fault and negligence as above described petitioners have been damaged in the said sum for which they prayed judgment in solido against the defendants.
    EdwardF. Brackenridge, president; CharlesE.Brackenridge, treasurer ; Y. A. Longaere, secretary, and James G. Green, secretary and superintendent of the Brackenridge Company, excepted to the petition on the ground that nothing therein said or averred showed any cause or reason for making them parties to the suit; that on the face of the papers, and, in fact, they are officers and agents of the corporation, and therefore, they are improperly made parties. They further excepted that the petition disclosed no cause of action against them.
    The defendant corporation answered, first pleading the general issue. Further answering they averred that it was true that George E. Henry was employed by respondent in its factory at and about the time set out in the petition and that he was accidentally killed, but said Henry was a boy of strength and of intelligence and able to perform the duties assigned to him; that he was not a child, nor an infant, and was well acquainted with the factory and its operation and that the unfortunate injury by which he lost his life was due entirely to his own carelessness and culpable contributory negligence on his part, and not in any manner to the fault, negligence and carelessness of respondent.
    On the trial of the exceptions they were sustained as to E. F. Brackenridge, Charles E. Brackenridge and Y. A. Longacre, and the suit as to them dismissed, but they were overruled as to James G. Green.
    Green then answered, pleading the general issue. The case was tried before a jury, which returned a verdict in favor of the defendants. Plaintiffs, after an unsuccessful attempt to obtain a new trial, appealed from the judgment of the court, sustaining the exceptions as to certain of the defendants, and also from the judgment on the merits.
   On the Judgment Sustaining Exceptions Filed on Behalf of the President, Treasurer and Superintendent of the Defendant Corporation.

The opinion of the court was delivered by

Nicholls, C. J.

Appellant has practically filed no brief on his appeal from the action of the court, sustaining the exceptions filed by the president, the treasurer and the superintentendent of the company, but have contented themselves with saying that the authorities cited by the District Judge should have led up to a ruling directly the reverse of that which was made. We think the ruling correct. The petition fails to show what part, if any, these officers were called on to take in determining the construction of the building or its accessories, in fixing the character of the appliances, or in controlling the appointment of Green, as foreman of the company. It is not alleged that these matters fall within the scope of the dnty of any one of them. Indirect allegations that “ they had failed in their duty in all of these respects,” that “they had not taken due precautions to ascertain Green’s fitness before placing him in charge of such dangerous machinery” are totally insufficient to charge them with any liability in respect to the matters complained of.

The charter of the company is not annexed to plaintiffs’ petition, and we know nothing of the duties assigned by it to these different officers. The judgment is affirmed.

On the Merits.

This ease comes to us on an appeal by plaintiffs from a judgment against them based on the verdict of a jury. We have examined the record and find no ground upon which we could reverse it.

Plaintiffs’ petition contains many allegations as to the defective construction of the building and its different parts, and as to the improper character of the appliances, and evidence was introduced endeavoring to sustain the same, but the conclusions we have reached do not call for any expression of opinion in respect to the same, for let their condition be what it might, such fact would not enter as a factor in the case, unless it should appear that the injury received was the result of the same. Nivette vs. New Orleans & Lake Shore Railroad Company, 42 An. 1153; Clements vs. Electric Light Company, 44 An. 694; Snider vs. Railroad Co., 48 An. 11. The mere fact of an accident does not carry with it a presumption of negligence or fault. The facts and circumstances connected with the accident must be shown so as to enable the court to trace results to definite causes. This has not been done in this case. We are unable to say how the accident occurred. The only person who seems really to have had any knowledge of it at all is the foreman Green. Though he was so excited and matters occurred so suddenly as to render his account not thoroughly reliable in all respects, yef it is clear and positive on certain points, and those negative the condition of things on which plaintiffs base their action. Plaintiffs’ contention is that the deceased, an inexperienced youth, was directed by his superior Green, the foreman of the establishnient, to hold a certain belt, as he, Green, laced it, while the shaft and other machinery was still in motion, revolving at a highly dangerous rate of speed — that the deceased, ignorant of the danger, obeyed; that the belt being of gum and in bad condition, it caught on the shaft and was twisted around it while rapidly revolving, throwing deceased, with great violence, against the roof, in consequence of the space between the shaft and the roof being so short as not to permit the passage of his body without striking. It is very evident, from the allegations of the petition itself, that the plaintiffs did not know themselves in what manner and under what circumstances the deceased became caught or entangled in the belt, for there was no attempt in the pleadings to set out the facts connected therewith, and they were left to be elicited, if possible, by the evidence. Green positively denies that he had either ordered the deceased to help him lace the belt or that he, in point of fact, did so; he says there was no need of his helping him, for if he had been holding it, witness could not have laced it; if he had been holding it he would have borne it down on the shaft, and he (witness), could not have laced it.” He says that the belt, needing to be laced, he sent the deceased for a piece of lacing, and on his handing it to him he ordered him to remove some shavings which had accumulated around the particular machine he was in the habit of feeding; that he himself hung the belt free from the shaft and laced it tight himself ; that he then reached over and put it on the side of the pulley to throw it on, when in some way Henry got his hand on it and the result followed.

He says the thing occurred so quickly that he could not account how in the world he got his hand in it; he must have grabbed it in some way. That Henry was standing on the opposite side where he feeds the machine at which he works. It is plain that the deceased got entangled in the belt and was carried up by it to the shaft and that his body was repeatedly struck as it passed between the shaft and the roof, but the weakness of the case consists in no one knowing how he came to be so entangled. His duty did not call him to the belt ornear it. Green’s statement is extremely indefinite, but such as it is it is the only direct testimony on the subject. Discrediting it, striking it out, we have nothing left (Ferguson vs. Tarbox, 44 Pacific, 905). We have no reason to believe that the building with its accessories was not suitable for carrying out the purposes for which it was designed. It could scarcely be expected that those who constructed it should have done so with reference to the possibility of a human body being carried up and around a revolving shaft and that they should have left a larger space between the roof and the shaft than they did for the purpose of enabling a body to pass without being struck,' nor have we reason to suppose that the belt, assuming it to have been precisely in the condition which plaintiffs claim it to have been in, conld not have been safely used for months in the work for which it was designed. As no one would anticipate that it would slip off from the upper pulley and that just as it did so a heavy weight should be suddenly thrown upon it, no one would guard against that special contingency. We think’ the testimony shows that plaintiffs’ claim that the machinery should be stopped in a factory while belt connections between some of the smaller, shafts in the establishment are being made, is unreasonable. We think that the question as to what appliances are best to be used to guard against accidents while belts are being laced does not affect this case, as the belt had already been laced and was being put on when the accident occurred.

It is not shown that any special scientific skill was needed in the discharge of the kind of work with which Green was entrusted. The evidence shows him to have been engaged about machinery for a number of years, with practical knowledge of his duty. He had been in the employ of this company for a long time and no accident of any kind prior to the one we are now called on to deal with is charged to have occurred during his administration — no failure of duty by him, either by way of omission or commission, has either been established or attempted to be established.

The accident was a deplorable one, but we do not think that defendants are responsible for it.

The judgment is affirmed.