author: Monroe J. Blanch-\rd, J.

text:
    No. 13,823.
    F. L. Maxwell vs. Susan Roach et als.
    Syllabus.
    1. Under the Constitution of 1879, it was incompetent for the owner of a homestead to convey the same to his creditor, either to secure, or to pay, an ante cedent debt. And where it appears that such a conveyance, of such property, in the form of a sale with a right of redemption, for cash, was mainly intended to secure, and, ultimately, and in case of forfeiture of such right, to pay, such debt, the transaction will be set aside.
    2. The provision of said Constitution, denouncing as invalid any renunciation or waiver of homestead rights or exemptions, was a rule of public order, and where it appears that, as to its principal consideration, a contract has been entered into in violation of such rule, the contract will not be saved by a valid consideration of minor importance.
    APPEAL from the Ninth Judicial District, Parish of Madison— Bansdellj J.

      William M. Murphy, for Plaintiff, Appellee.

      Wade B. Young, for Defendants, Appellants.
   The opinion of the court was delivered by

Monroe J.

On application for rehearing by

Blanchard, J.

Monroe, J. The case presented by this record is as follows, to-wit: In 1891, E. L. Maxwell & Co., composed of F. L. Maxwell and F. P. !M!oore, were doing business as merchants in the parish of Madison^ and there were, at that time, living in the parish, Snsan Roach and her four sons, Bradford, Bryant, Spencer and Walter, issue of her marriage with Spencer Roach, deceased. This family resided upon a small place, of-a little more than thirty acres, which had been acquired by the deceased husband and father as community property, and, after his death, had been registered by the widow and mother as a homestead. During the year 1891, Maxwell & Co. began making advances of supplies, etc., to Susan Roach, with the understanding that they were to be regarded as being made to her sons, as well. It is quite certain, however, that Spencer and Walter were then minors, and it is not unlikely that Bradford and Bryant were also minors in 1891, though they had attained their majority at the date of the transaction out of which this litigation has arisen. In the spring of 1894, the Roaches, who are defendants in this case, needed a mule, and applied to Maxwell & Co. for the money with which to purchase it. They were then indebted to that firm, however, to the extent of some hundreds of dollars, for advances made during the three preceding years, and they were told by Mr. Moore, “that Mr. Maxwell objected to furnish further money until this old balance was arranged.” And Mr. Moore, it seems, consulted the legal adviser of the firm, and, being informed that the homestead could not be mortgaged, and that it would be necessary, in order to utilize it for the purpose in contemplation, to make a sale, he explained the situation to Susan Roach, and told her that, in order to effect a sale, it would be necessary that the two minors, Spencer and Walter (the other two having by that time attained majority), should be emancipated; to which she consented, and the two minors were, accordingly, emancipated, by a judgment of the District Court, March 19, 1894. Thereafter, upon March 22, 1894, they, that is to say, Susan Roach and her four sons, executed an act of sale of their homestead to Maxwell & Co. for the stipulated price of $554.97, of which, although the act recites that the sale was made for cash, as we understand the testimony, probably, four-fifths, or more, represented the old account, the inference being a fair one, though there is no direct testimony to that effect, that there was a balance which was represented either by cash or by a mule. This act contains a stipulation to the effect that the vendors shall have the right, to redeem the nroperty, up to January 1st, 1897, upon refunding the price, as stated therein, with interest, at 8% per annum.

Thereafter, in 1895, Moore sold his interest in the property to Maxwell, and the latter, claiming as sole owner, is the plaintiff in this suit. During the same year, 1895, Susan. Roach, individually, and .as tutrix, filed suit, in which she was joined by her major sons, attacking the transaction into which they had thus entered upon the grounds, as alleged by them, that the emancipation of the minors and the execution of the act of sale by them and the others were the results of a fraudulent deception, practiced on them by Maxwell & Co. by whom, as the plaintiffs alleged, they have been induced to believe that the act in question was merely an act of mortgage to secure the debt due to said Maxwell & Go. The suit thus instituted had, however, not been tried when the present suit was instituted, and it has been cumulated herewith as part of the defense hereto. The date fixed, in the act of sale referred to, for the redemption of the property having long since passed, F. L. Maxwell, upon December 12, 1900, brought the present action, alleging, that no part of the price of said property had been refunded, and praying that he be decreed to be the owner thereof and put in possession, -and that he have judgment against defendants, for rent at the rate of $150 per annum from January 1, 1897; or, in the alternative, that he be recognized as having a mortgage on said property, and that the same be sold to satisfy his claim. For answer, the defendants make the same attack upon the deed sued on that they had made in 1895, in the action brought by them, in fact, they make the petition filed in that suit part of the. answer in this. And, upon the issues as thus made, the case was tried, with the result, that there was judgment for plaintiff decreeing him to be the owner of the property, and condemning the defendants, in solido, for rent, at the rate of $150 per annum, from January 1, 1897; from which judgment the defendants have appealed.

Neither of the sons of Susan Roach appeared upon the trial, to sustain, by their testimony, the charges of fraud which had been made by them, or on their behalf. In fact, the only witness who appeared for the defense was Susan Roach, who testified that she did not know when she was married, or when her children were bom, of anything about the emancipation of the two minors. She does not, however, utter a syllable concerning the act of sale iipon which the plaintiff sues, or intimate that there was any deception practiced upon her with regard to any portion of the transaction. It does appear that she is living on the place in controversy with her sons, and that the youngest son, with his wife, and a grandchild, live in the house with her. Upon the other hand, the record contains the testimony of several respectable witnesses to the effect that the whole matter was fully explained to them all; that there was no fraud or deception practiced on them, and that they understood that they were making a sale such as the act-signed by them witnesses, and we entertain no sort of doubt as to the truth of this testimony.

The question then is, was the transaction thus entered into legally possible? There can be no doubt that the property which was the subject thereof was a homestead, secured by the Constitution of the State to the defendant, Susan Roach, as the head of a family, even assuming that her adult sons were not to be considered for the purposes o-f that question, • since two of her sons were then minors living at home. Wood vs. Perkins, et als., 43 Ann. 347. But the organic law not only secures the homestead to the persons mentioned against attack from without, but is equally imperative and efficacious in securing it as against the acts of such persons themselves; the ordinances upon the subject being rules of public order which the beneficiaries are incompetent to waive. The language is:

“The homestead shall not be susceptible of mortgage, except for the purchase price, labor and material furnished for the building, repairing, or improving homestead; nor shall any renunciation or waiver of homestead rights or exemptions be valid. The right to sell any property which shall be recorded as a homestead shall be preserved, but no sale shall destroy or impair the rights of creditors therein.” Constitution of 1879, Art. 222.

The prohibition as to mortgage is absolute, and contains no exceptions. And if it was incompetent to mortgage the homestead for money received at the time, a fortiori was it incompetent to mortgage it to secure an antecedent debt. And if it was incompetent to mortgage the homestead to secure an antecedent debt, a multo fortiori was it incompetent to give it in payment of such debt, or validity to agree to do so. And yet, from the testimony of Moore, it is evident that the purpose of the deed was, for the time being, to secure the amount which was due to his firm, and, ultimately, to obtain its payment by the delivery of the property; and, in so far as the acts, agreements and transactions of the parties, whether considered singly, or collectively, were influenced by that purpose, they were absolutely and incurably void and of no legal effect.

That a homestead may be sold there is no doubt; and, as sales o£ other property may be made in different ways, so sales of homesteads may be made in different ways, but the transfer of property to a creditor to secure, or to pay, a pre-existing debt is not a sale, and no such disposition can be made of a homestead.

The only other question which the case presents, is, whether the instrument sued on should be maintained as a sale, by reason of the fact that there is said to be included in the nominal price the money necessary for the purchase of a mule? And this question, we think, must be answered in the negative. It has been shown that the amount stated in the act to be the price was not a price, but that the main consideration moving from the vendees to the vendors concerned a pre-existing debt due by the latter to the former. If, apart from that, there was a price for the property, it has not been disclosed by the evidence. And without a price there was no sale. And without a sale the plaintiffs could have acquired no right or title to the defendants’ homestead. Even, however, had the amount of the money advanced for the purchase of the mule been disclosed, and had it been made to appear that the deed was executed in order to secure, or pay, an antecedent debt of $400, and to obtain $154.07 with which to buy a mule, we should not be prepared to hold that the defendants were thereby divested of their homestead, since it would, even then, appear that the contract, as to the principal consideration, had been entered into in violation of a rule of public order embodied in the organic law. Erom the view which we have thus expressed, upon the main question, it is evident that nothing need be said upon the subject of rent. But, if our conclusion upon the main question had been other than it is, we should have been at a loss to understand how the defendants could be held liable, in solido, for $150 per annum as rent, since there is not a syllable of testimony in the record either as to any agreement to pay rent, or as to the value of the use and occupancy of the land.

For these reasons, it is ordered, adjudged, and decreed, that the judgment appealed from he annulled, avoided and reversed, and that the demands of the plaintiff be rejected at his cost, without prejudice, however, to any claim that he may have against the defendants, or either of them, individually.

On Application por Behearing.

Blanch-\rd, J.

In a very earnest application for rehearing counsel for plaintiff presents anew the cause he represents.

For the second time the case has had our most careful consideration, and we rise from its study with our convictions unshaken as to the correctness of the judgment of the court.

I. The contract of March 27, 1894, did not evidence a sale between the parties. It was, at most, a pignorative contract by which a debt was acknowledged and an attempt made to grant therefor security rights on land.

The apparent vendors remained in possession, not only during the period allowed for the redemption, but long afterwards, and this suit was not brought until more than three years after the redemptory right had expired. See Marbury vs. Colbert, 105 La. 467.

II. Under both Constitutions — that of 1879 and that of 1898 — the benefit of the homestead exemption is extended to the surviving spouse.

The fact that the surviving spouse, as widow in community, is owner of one-half of the property constituting the homestead, does not déstroy the homestead right. Ordinarily parties owning land in indivisión, or rather a party owning an undivided interest in land, cannot claim the homestead exemption on the land thus held in common with others. But, by special direction of the Constitution, this does not apply to the surviving spouse.

Under the Constitution of 1879 the homestead exemption was required to be registered. In this instance the surviving spouse, shortly after the adoption of that Constitution, registered her homestead right. She was then “the head of a family” within the meaning of the Constitution; she was the same when in 1894 the contract under which plaintiff claims was executed; and she was still “the head of a family” at the time this suit was instituted and decided in the court below.

She not only, as surviving spouse in community, owned the undivided half of the tract of land whereon she resided as “the head of a family,” but she enjoyed the usufruct of the other undivided half which belonged to her children, the issue of her marriage with her deceased husband, Spencer Roach.

The decisions cited by counsel for plaintiff, declaring the non-applicability of the homestead exemption to property held in indivisión, preceded, in point of time, the adoption of the Constitution of 1879, wherein it is expressly declared the benefit of the exemption descends to the surviving spouse.

III. Since the contract of 1894 between these parties litigant is to be viewed as granting' nothing beyond mortgage rights on the land, such mortgage was and is not exigible on the property, so long, at least, as the same remains the homestead of this surviving spouse and she continues to represent the conditions entitling her to the homestead exemption.

The homestead claim of the surviving spouse on community property, one-half of which she owns in indivisión and the other half of which she enjoys the usufruct of, cannot be defeated by a seizure, under a judgment against them, of the undivided half of the property belonging to her children.

IV. The point is made in the application for rehearing that the defendants took an order of appeal only from that part of the judgment decreeing the property to belong to the plaintiff and gave appeal bond accordingly only to that extent. It is, therefore, insisted that the moneyed judgment against defendants for rents of the land must stand as unappealed from.

While the order of appeal is awkwardly drawn, and the bond of appeal quite equally so, we are able to make out of the two that a suspensive appeal was taken from that part of the judgment, awarding plaintiff the ownership and possession of the land, and a devolutive appeal from the entire judgment.

V. Attention is called to the fact that the prayer of plaintiff’s petition is to the effect that if the contract made with him in 1894 be held not to evidence a sale, it be held to evidence, at least, a mortgage, and for judgment accordingly.

Considering it a mortgage, it yet cannot have effect against the homestead right herein claimed, and, therefore, there can be no recognition of mortgage rights.

Eliminating the mortgage feature of it and its bearings on the homestead, can the court do as plaintiff asks, to-wit: — award him an ordinary moneyed judgment for the amount the evidence in the record shows defendants owe as the result of the transactions between the parties out of which grew the contract of 1894, which amount is $554.07? No; for the reason that it is only the homestead feature of the case which gives this court jurisdiction. We may pass upon the issues presented only in so far as it is necessary to adjudge the homestead question raised.

With that out of the way and leaving only a moneyed demand asserted by plaintiff against defendant, this court cannot take jurisdk-tion, for the amount is below its minimum jurisdictional limit. The decree of the court, however, reserves to plaintiff all rights in respect to such demands he may have.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,880.
    Liquidating Commissioners of the New Orleans Warehouse Company vs. L. H. Marrero, Tax Collector, et als.
    Syllabus.
    1. Bach annual assessment of property for taxation is a separate entity, distinct from the assessment for the next, and subsequent years. What may be a proper valuation one year may not be the next year, and, thus, a judgment decreeing at what figure a piece of property should be assessed last year for purposes of taxation is not res judicata as against another valuation placed thereon by the proper authorities this year.
    2. The law contemplates that each year a tax-payer’s property is subjected to excessive assessment he should sue, and this is shown by the circumstance that he is not permitted to sue to reduce an assessment unless he shall have made his complaint seasonably before the Board of Reviewers and failed of relief there.
    3. And this bringing of the matter before the Board of Reviewers must be done each time his property is assessed — that is to say each year — and his action to test the correctness of his assessment, if he fail before the Board of Reviewers, must be instituted on or before the first day of November of the year in which the assessment is made.
    4. The commission of ten per cent, upon the amount of taxes to be collected, allowed by statute to the attorney representing the tax-collector, and to be paid by the unsuccessful tax resister, is regarded as costs.
    5. The right to costs as depending upon the nature of the suit, or upon other circumstances, has always been within the regulation and control of the legislature, exercising its discretionary power, not oppressively to either party, but as the best interests of the litigants and of the public may appear to it to demand.
    6. And the constitutionality of statutes allowing one party only to a litigation to recover an attorney’s fee, as part of the judgment, in particular classes of actions selected by the legislature, appears to have been upheld by the courts of most of the States, in which it has been challenged.
    7. The case of Ry. Company vs. Ellis, 165 U. S. 150, differentiated from the case at bar, and held not to be an authority in point.
    8. While the law recognizes and permits partial payments on taxes, it must he upon a reasonable showing made and some reasonable basis of calculation adopted. The tax-debtor may not arbitrarily select a given sum out of the total amount of taxes the rolls show he owes, and expect the tax-collector to receive it as a partial payment. No; the collector would do right t.o refuse such payment and proceed to enforce collection of the whole amount with penalties added.
    APPEAL from the Twenty-Eighth Judicial District, Parish of Jefferson — Qaudet, J.

      James B. Beguin, (Parkerson & Tobin, of Counsel), for Plaintiffs, Appellants.

      Robert J. Perkins, for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

This was a suit to enjoin the sale of plaintiffs’ property for taxes for the years 1898 and 1899. There had been a failure on part of plaintiffs to pay the taxes and the tax collector had advertised the property for sale in the effort to enforce payment.

The preliminary order of injunction issued and the sale of the property was temporarily stayed; but on trial of the merits the injunc1 tion was set aside and the tax collector was directed to proceed to sell the property for the taxes due thereon for 1898 and 1899, with the statutory interest, costs and penalties added.

Plaintiffs appeal.

The petition sets up that the taxes as assessed, levied and claimed are unconstitutional, illegal and void.

Many grounds for this assertion are averred. Among them the following are merely mentioned to be dismissed, since nothing appears of fact or law to give them any standing in the forum of discussion, to-wit: — improper and inadequate description of the • property on the assessment rolls; assessment not returned'in the name of the' true and actual owners; want of notice of delinquency prior to proceeding to sell the property; want of proper legal form and manner of advertisement of the property.

A ground which does merit discussion is: — over-assessment, or excessive assessment of the property, and, in this connection, the plea of res judicata tendered as to amount at which the assessment for the years ISOS and 1899 should be fixed.

And defendants claiming, in their answer, the legal penalties and costs incident to tax litigation, including 10 per cent, on the total amount to be collected as fees for the attorney representing • the tax-collector, plaintiffs urge as against the percentage claimed for the attorney that the same is a charge violative of certain Articles of Lhe State Constitution and of the 14th Amendment of the Constitution of the United States.

Thus narrowed down the action is found to be one seeking redress for what plaintiffs consider an over-assessment of their property for taxation for the years mentioned, and a defense on their part against the attorneys’ -fees asserted under the statute in favor of counsel appointed to assist the tax collector in his duties.

I.

In a former suit brought by plaintiffs against these same defendants for reduction of assessment on the same property for the year 1897, the District Court rendered judgment reducing -the assessment from $60,000 to $45,000, and it is this judgment which plaintiffs pleaded as a bar to any larger assessment against the property for 1898 and 1899.

The answer to this is (1) that the judgment in that suit has not yet become final, the cause having been appealed by defendants to the Court of Appeals and being still pending there; (2) but even if this appeal does not effect the right to plead the judgment as res judicata and estoppel, the judicial ascertainment and fixing of the proper amount of the assessment on the property in question for the year 1897 does not have the force and effect of the thing adjudged so far as assessments on the same property for subsequent years are concerned.

Assessments are made each year. Each annual assessment is a separate entity, distinct from the assessment for the next and subsequent years. What may be a proper valuation one year may not be the next year, ands thus, a judgment decreeing at what figure a piece of property should be assessed last year for purposes of taxation is not res judicata as against another valuation placed thereon by the proper authorities this year.

The law contemplates that each year a taxpayer’s property is subjected to excessive assessment he should sue, and this is shown by the circumstance that he is not permitted to sue to reduce an assessment unless he shall have made his complaint seasonably before the Board of Reviewers and failed of relief there.

And this bringing of the matter before the Board of Reviewers must be done each time his property is assessed — that is to say each year— and his action to test the correctness of his assessment, if he fail before the Board of Eeviewers, must be instituted on or before the first day of November of the year in which the assessment is made. Secs. 24, 25, 26 of Act No. 170 of 1898, pp.359, 360, 361.

The present suit, which is held to be one having for its object the reduction of the assessment on their property for 1898 and 1899, was not instituted by plaintiffs until October 1900, when, as to the assessment for 1898, it should have been brought on or before November 1st of that year, and, as to the assessment for 1899, on or before the same date of that year.

But more than this. No effort, either in 1898 or 1899, was made by plaintiffs before the Board of Eeviewers to obtain relief from alleged over-assessments, and this being so, no basis has been laid for the suit. State ex rel. Johnson vs. Tax Collector, 39 La. Ann. 538; Oil Co. vs. Assessor, 48 La. Ann. 1358; Brewing Co. vs. Assessors, 41 La. Ann. 565; Hoffman vs. City, 39 La. Ann. 206; Red River Line vs. Parker, 41 La. Ann. 1046.

Again, the judgment of the District Court, in the cause instituted in 1897, reducing the assessment on plaintiffs’ property for that year, which judgment is pleaded as res judicata, was not rendered until May 1900, long after the assessment on the property for 1898 and 1899 had been returned, and long after the expiration of the time in each year when plaintiffs should have sought relief from the Board of Eeviewers.

Was the assessor to wait the determination of that suit before making his assessments on the property in question for 1898 and 1899? No; for had he done so he would have been omitting from the rolls property subject to taxation and which it was his duty to assess.

After the 1897 suit was decided by the District Court in May 1900, and a reduction decreed on plaintiffs’ property from $60,000 to $45,000 for the year 1897, was the assessor and tax-collector to revise the rolls of 1898 and 1899 by striking therefrom the assessment on the property of $60,000 for each of those years and making it $45,000? No; for the reason that the 1897 case had been taken by appeal to a higher court, and for the further reason that after the tax rolls are finally completed and filed the tax assessor is without authority to revise them (50 La. Ann. 1059), and after the same have reached the tax-collector’s hands that official is equally powerless to either revise or reduce the assessments.

Could the Board of Reviewers, after the decision of the 1897 suit, reconvene and reduce the assessment on the property for 1898 and 1899 ? No; because the Board had sat at the appointed time and for the appointed time on the assessments for those years, had exhausted their powers in regard thereto, the rolls had passed from their hands into those of the tax-collector, and there was no power in the Police Jury to recall them in 1900, and, resolving again into a Board of Reviewers, revise assessments for 1898 and 1899.

We conclude, on this branch of the case, that plaintiffs are without standing herein to contest the assessment of $60,000 on their property for each of the years 1898 and 1899.

If they have, by their inaction, permitted the door of relief to be dosed on them, they alone are to blame. 41 La. Ann. 567 (Brewing Co. vs. Assessors).

II.

The second paragraph of See. 56 of Act 170 of 1898 provides that the attorney at law, who represents the tax-collector in an injunction proceeding wherein the tax-collector is sought to be restrained from collecting taxes, shall receive a commission of ten per cent, on the amount to be collected, to be paid by the plaintiff who is cast in the injunction. This commission is regarded by the statute as costs and is directed to be collected by the tax-collector at the time the taxes and other penalties are collected.

This commission is claimed herein by the tax-collector for his attorney. ■ Plaintiffs resist it, alleging it to be repugnant to certain Articles of the State Constitution and Sec. 1 of the 14th Amendment of the Constitution of the United States.

The Articles of the State Constitution to which the provision of law is asserted to be obnoxious are Nos. 6 and 225. The first declares that:—

“All courts shall be open, and every person for injury done to him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.”

In the second (Art. 225) is embodied the declaration that “taxpayers shall have the right of testing the correctness of their assessments before the courts of justice.”

It suffices to say that the force of the argument, which deduces from either of these provisions of the organic law anything militating against the power of the Legislature to enact the second paragraph of Sec. 56 of-the Act of 1898, is lost upon us.

It is now, and has been for years, of the administrative policy of the State to appoint (it is done by the Governor) attorneys to aid the collectors of taxes in the work of collecting the public revenues. These attorneys have no compensation except that which the law permits to be taxed as costs against the unsuccessful tax resister. It applies to all, whether corporations or individuals. There is no discrimination.

The right to costs as depending upon the nature of the suit, or upon other circumstances, has always been within the regulation and control of the Legislature, exercising its discretionary power, not oppressively to either party, but as the best interests of the litigants and of the public may appear to it to demand. Lowe vs. Kansas, 163 U. S. 81; Green vs. Liter, 8 Cranch, 229, 242; Kneass vs. Schuylkill Bank, 4 Wash. C. C. 106.

And the constitutionality of statutes allowing one party only to a litigation to recover an attorney’s fee as part of the judgment, in particular classes of actions selected by the Legislature, appears to have been upheld by the courts of most of the States in which it has been challenged.

16 Kansas, 573, 582; 109 Ill. 537; 157 Ill. 339; 49 Ark. 455; 16 Kansas, 583; 103 Missouri, 52; 82 Iowa, 312, 340; 12 Montana, 316; 87 Texas, 19; 63 Minn. 384.

But as supporting the contention that the provision of the statute under discussion is obnoxious to the equality clause of the 14th Amendment of the Federal Constitution, the court is cited to Ry. Co. vs. Ellis, 165 U. S. 150.

In that case the Federal Supreme Court had occasion to construe the effect of Sec. 1 of the 14th Amendment upon a statute of the State of Texas imposing attorneys’ fees not exceeding $10 upon railroad corporations in suits where the amount involved did not exceed fifty dollars, and where there had been refusal or failure on part of the railway company to pay the claim within a certain specified time after presentation and verification by oath, and the claimant had been driven to sue and had recovered the full amount claimed. It was held that the statute operated to deprive the railroad companies of property without due process of law, and denied to them the equal protection of the law, in that it singled them out of all citizens and corporations and required them to pay in certain cases attorneys5 fees to the parties suecessfully suing, while it gave to them no like or corresponding benefit.

It will be observed that only against railroad companies was the exaction made. A penalty was imposed upon them, and upon them alone, for a failure to pay certain debts. No individuals were to be thus punished, and no other corporations. The Act singled out a certain class of debtors and punished them, when for like delin' quincies it punished no others. They were not treated as other debtors, or equally with other debtors. They could not appeal to the courts as other litigants under like conditions and with like protection. They were discriminated against. The rule of -equality was ignored.

And it was said that:—

“Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency, this statute cannot stand.”

The Texas statute would have stood the test of the equality clause of the 14th Amendment had it been made to apply to all alike — to other corporations and individuals, as well as to railway corporations. So, too, it would have stood the test, notwithstanding it related to suits in which only railway corporations were parties defendant, had it given to the latter a like or corresponding benefit to that bestowed upon the plaintiffs in such cases. That is to say, if the statute, while stipulating that if the litigation terminated adversely to the railway it was to be mulcted in the attorney’s fees of the successful plaintiff, it had gone' further and stipulated that if the litigation terminated in Us favor it should be entitled to recover from the plaintiff the same amount in attorney’s fees.

But where it was not made to apply to all corporations and individuals alike, or where, while made to apply to only railway companies, it denied to the latter a benefit corresponding to that bestowed upon the other party litigant, it violated the principle of the equal protection of the laws.

Such is our reading and interpretation of the Ellis case in the 165th U. S.

It, thus, plainly appears that the point raised in that case' was essentially different in character from that here at issue.

The Texas law was unconstitutional because it failed to put all debtors in that class of cases upon the same footing as to the penalties prescribed. The Louisiana statute makes no distinction or difference between delinquent tax payers who. are litigants. All are treated alike by the law in its operation, whether they be citizens of this State or not; whether the delinquent be a railroad corporation or any other kind of a corporation, or an individual. No matter who it is, if he or it sued inadvisedly, without good grounds, in obstructing the due and orderly collection of the public revenues, and is cast, he is mulcted in the penalties prescribed. Hence, there is here no denial of the equal protection of the law.

HI.

When plaintiffs filed their suit they made a tender to the tax collector of $2262.20 as the amount they were due for taxes on the property for both years, 1898 and 1899. This was $1131.10 for each year. It was arrived at by calculating the tax rate, 25 mills, on an assessment of $45,000 for each year, plus $6.10 each year as acreage tax.

The tender was made October 31st, 1900. The sheriff having declined it, plaintiffs deposited it in court.

They now ask that should the judgment herein be against them, they he not mulcted for the penalty of two per cent, per month and the 10 per cent, commissions as attorney’s fees on the amount so deposited. They urge that that amount he looked upon as a partial payment on their taxes, and that the penalties and commissions of counsel be limited to the balance due.

When the tender was made the differences between plaintiffs and the tax collector were these:—

Plaintiffs claimed the assessment on their property for each of the years 1898 and 1899 should be $45,000. The tax collector pointed to the rolls showing their assessment for each of those years to he $60,000. Plaintiffs claimed the right to pay on the basis of $45,000 assessment, plus the acreage tax. The tax collector insisted his duty was to demand payment of the taxes upon the basis of the assessment as shown by the rolls. Plaintiffs tendered $2262.20 as the full amount due by them for the two years. The tax collector pointed out that this was not the amount they owed even upon the basis of a $45,000 assessment — that it included no interest.

The statutory interest due as penalty upon delinquent taxes is two per cent, per month. Section 40 of Act 170 of 1898.

The taxes of each year became delinquent on and after the 31st of December of the year. Ib.

Hence, plaintiffs were delinquent on their taxes for 1898 from and after January 1st, 1899, and on their taxes for 1899 on and after January 1st, 1900.

When, therefore, they made the tender to the sheriff, they owed as interest two per cent, per month for 22 months on their 1898 taxes, and the same for 10 months on their 1899 taxes.

Yet they failed entirely to include this interest in the amount tendered. They acknowledged to owe taxes on an amount of $45,000 for each of the years; that amount of assessment was not in contest; but refused to consider that to the principal of the taxes thus due must be added the accrued interest.

Honestly considering that they owed taxes on the basis of a $45,000 assessment, they should have tendered the full amount of taxes due, principal and interest, on such assessment. Had they done so, it would, we think, have been the sheriff’s duty to accept it as partial payment under the authority of the third paragraph of Section 56 of the Act of 1898, and we would now sustain its deposit in court as a partial payment, relieving them of the penalties- thereon.

But the amount they tendered the sheriff, and subsequently deposited in the trial court, was over seven hundred dollars less than what was due at the time on the assessment they, themselves, fixed. It was, therefore, a purely arbitrary amount, and was alike abortive as a tender or deposit.

While the law recognizes and permits partial payments on taxes, it must be upon a reasonable showing made and some reasonable basis "f calculation adopted. The tax-debtor may not arbitrarily select a given sum out of the total amount of taxes the rolls show he owes, and expect the tax collector to receive it as a partial payment. No; the collector would do right to refuse such payment and proceed to enforce collection for the whole amount, with penalties added.

Plaintiffs, to have relieved themselves of the interest penalty on the 1898 tax, on their basis of $45,000 assessment, should have made their tender of $1131.10 on December 31st of that year, and to have obtained like relief on the 1899 tax, the tender should have been made on the same date in the latter year.

Nevertheless, a majority of the court think, under all the circumstances of the case, plaintiffs should be relieved of the two per cent. per month interest on the amount they deposited in court, from and after the date of its deposit — this upon the theory that, following the deposit, the tax collector could, at once, have obtained from the court an order for the delivery to him of the amount deposited as so much admitted to be due. But, as far as the commissions due the tax collector’s attorney are concerned, they must be paid on the full amount to be collected, including the amount deposited, for the reason that the same is compensation earned by him for successfully defending an injunction suit brought by plaintiffs to prevent the sale of their property in enforcement of the taxes due thereon.

It is, therefore, ordered and decreed that the judgment appealed from be amended by relieving plaintiffs from the payment of interest at the rate of two per cent, per month on two thousand, two hundred and sixty-two and 20-100 dollars, deposited in the trial court, from and after the date of said deposit, to-wit: — October 31st, 1900, and that, as thus amended, the said judgment be and is hereby affirmed, costs of the lower court to be borne by plaintiffs, those of appeal by defendant.


author: Monroe, J.

text:
    No. 13,454.
    L. J. Arguimbau & Co. vs. Germania Insurance Company.
    Syllabus.
    1. Where suit is brought upon a policy of insurance which has a printed condition, or warranty, attached upon the face of it, and it is claimed by the plaintiff that such condition, or warranty, was eliminated when the contract was made, by reason of a verbal statement of the agent of the company to the effect that the company would give no trouble about ft; but the condition was, nevertheless, allowed to remain in the contract, to the knowledge of the assured, who fully understood its meaning and legitimate effect, testimony going to show such verbal statement should be excluded on the objection that it tends to vary and contradict a written instrument.
    2. It is not a question, in such a case, of the authority of the agent, but a question of the right of a party to a contract, which'has been reduced to writing, without attempting to reform such contract and without charging error or fraud, to substitute in place thereof a verbal agreement of which the written contract, with some of its provisions eliminated, is said to be a part.
    3. The secretary of an insurance company cannot bind the company for a loss which has occurred, but for which the company is not otherwise liable.
    PPEAL from the Civil District Court, Parish of Orleans— King, J.

      John C. Wicleliffe and lióse G. Falls, for Plaintiffs, Appellants.

      Bucle, Walshe & Bucle, (Edward M. Hudson, of Counsel,) for Defendant, Appellee.
   Statement oe the Case.

The opinion of the court was delivered by

Monroe, J.

Plaintiffs shipped certain cattle and hogs to Havana, and, by reason of stormy weather, many of them were lost, and others were injured, on the voyage. They bring this suit to recover, under a contract of insurance, the value of the stock so lost and injured, together with the freight paid, and certain damages alleged to have been sustained by- reason of the non-payment of the claim; and they allege: “That, on the 3rd day of December, 1898, they insured said hogs and cattle * * * in the Germania Insurance Company * * '* through B. W. Sewall, an agent of said company, as evidenced by the certificates of insurance of same hereto attached and made part hereof, marked fiB.’ That they paid, as premium for said insurance, the sum of forty-four dollars and sixty-eight cents, as evidenced by the receipt of said B. W. Sewall, agent of said company, therefor, hereto attached and made part hereof, marked ‘G.’ That after paying the said premium, and the departure of the messenger bringing said certificate, they read the certificate, and noticing the type written slip attached thereto, they immediately wrote, and mailed, to the said B. W. Sewall, agent, a letter, refusing to receive said certificate with the limitation imposed by said type-written slip, and demanded the usual, regular, marjnel policy, against thie dangers of the sea. * * * That, upon the morning of December 4th, 1898, Alfred Isaacson, one of your petitioners, met said B. W. Sewall, agent of the said company, and inquired whether he had received said letter, and renewed, verbally, the protest against the type-written clause, and the refusal of your petitioners to receive said certificate of insurance with the limitations therein contained, and again demanded a policy with the usual marine risk. That said B. W. Sewall, agent of the said company, speaking and acting for said company, then and there agreed to, and accepted, in behalf of said company, said protest, and assured your petitioners that.fit would be all right; that such a clause was usual — it meant nothing; and that there would never be raised any question about it, by said company, if there should be a loss,’ with other and like statements, which were calculated to lead your petitioners to believe, and were intended to make them believe, and did lead them to believe, that said type-written clause was a mere formality and was waived by said company; and that the certificate of insurance above referred to was one covering the ordinary and usual marine risks, and protected your petitioners as recited upon its face without said type-written clause.”

Then follow allegations concerning the value of the stock and the circumstances of the loss, etc.

The certificate of insurance upon which the suit is based, and which is annexed to, and made part of, the petition, is as follows, to-wit:

“Certificate of Insurance.
“This is to certify that the Germania Insurance Company, of New Orleans, La., hereby insures L. J. Arguimbau & Co., under and subject to all the conditions of policy No. —;- in the sum of $8000; on live stock, $6815.00; on freight, $1125.00, whilst contained in S. S. Miguel Jover, from New Orleans to Havana, for the term of voyage, from the 2nd day of December, 1898, to the-day of --, 189 — , at twelve o’clock, noon; loss, if any, payable to assured, or order, hereon, on return of this certificate. In testimony whereof, the company has caused these presents to be signed, this 3rd day of November, 1898.
(Signed) “O. T. Maier, Secretary.”
The “type-written slip,” referred to in the petition, is attached to the face of this certificate, and reads:
“Warranted by the assured that claims under this policy shall only be made for total loss; no claim will be allowed (sic) for animals killed or disabled by reason of storms or shipping of seas.
(Signed) “O. T. Maier, Secretary.”

The defendant admits the contract as set forth, but denies the alleged ^modification, and denies that B. W. Sewall was its agent, or that he was authorized to make any concession or waiver in its behalf. And it alleges that, on the contrary, he was an insurance broker, the extent and limitation of whose authority was .well known to the plaintiffs, etc. An exception of “no cause of action” was maintained by the lower court as to the claim for damages alleged to have been sustained by reason of the failure of the defendant to make prompt, settlement, and that part of the claim is abandoned.

The only witnesses examined in the case were Alfred Isaacson and L. J. Arguimbau, members of the plaintiff firm, and Otto Maier, the secretary of the defendant company. B. W. Sewall, through whom the insurance was effected, was not called or examined as a witness by either side.

Arguimbau testifies only as to the handling of the stock between here and Havana and the injury and loss sustained. Isaacson, alone, for the plaintiffs, testifies as to the contract. He states that B. W. Sewall, through whom his business with the defendant was transacted, is his nephew, and, whilst he does not tell us, specifically, how the particular contract in question was made, he makes the following general statement, which, we assume, applies to the instant case, to-wit: “We would do it in this way — my office is at the stock landing, some four or five miles from the city, and my nephew has an office up town, and when we found that we were going- to make a shipment, I would write a letter to him, asking him to place so much insurance with his company, telling how much on cattle, etc., and when the vessel would sail, and he would send down the certificate and his bill.”

It further appears, from the testimony of this witness, that the live stock in question was shipped on board the S. S. Miguel lover on December 2nd, and that on December 3rd, 1898, Mr. Ledbetter, a messenger from Mr. Sewall’s office, delivered to the witness the certificate of insurance here sued on, with Sewall’s bill for the premium; that the witness noticed the type-written slip attached upon the face of the certificate, and sent, by Ledbetter, a verbal message of objection concerning it to Sewall, and that he also and at the same time, sent, by Ledbetter, a cheek for the premium; but that he retained, and has continued to retain, the certificate, with the slip attached, in his possession. It also appears from his testimony that upon the same evening he wrote, and mailed, a letter to Sewell as follows, to-wit:

“December 3, 1898.
“B. W. Sewell, Agent, Germania Ins. Go.—
“Dear Sir — Your certificate received, and is not satisfactory. I want your policy to be a regular marine one, against the dangers of the sea, like any other freight. If the cattle die or hurt one another that is another thing, but if a storm should occur and cattle are killed, ■w lost, by same, we expect pay for it, so arrange shipment that way.”

.Upon the following day, which was Sunday, the witness casually met Sewell at the postoffice, and gives the following testimony as to what occurred, to-wit: “I met him by accident at the postoffice and attacked him about sending me another one of those slips on his certificate, and he said to me, ‘Tíñele Alf, they put those slips on all those kind of policies — and that no question would be raised in regard to it, do not bother about that’ — something to that effect; * * * he told me I would never have any trouble with the company.” After the loss, it appears that the witness and his partner went to the office of the company and had some conversation with Maier, the secretary, which was excluded on the objection of defendant’s counsel. We will, however, refer to this hereafter.

The evidence shows that Sewall was the agent of the defendant company in New Orleans, where it has, also, its main office and domicile, from the latter part of 1896 until May 31st, 1898, after which his relation was that of solicitor. As agent, he was furnished with forms of fire policies bearing the signature of the president and secretary of the company and he was authorized to receive proposals for insurance, “against loss or damage by fire;” to make insurance by means of said policies; to renew the same; to authorize the assignment thereof, and “to vary the risk according to the rules and instructions” received by him from the company. He-was not designated “general agent,” in the commission which was issued to him, and he was not authorized to effect marine insurance of any description.

The plaintiffs show that they obtained, through said Sewell, prior to May 31st, 1898, and whilst he actually held a commission as agent of said company, for themselves and others, considerable fire insurance, and they offered in evidence more than twenty policies which had been issued prior to said date, and some of which were in force upon December 3rd, 1898, when the certificate sued on was issued. The purpose of this offer being to show that they had known him to be the agent of the company, had dealt with him as such, and, at the time of the issuance of the certificate sued on, and of his alleged verbal stipulation with respect thereto, held contracts signed by him, in that capacity; and hence, not having been informed that his commission as agent had been withdrawn, that they were justified in believing that he still held such commission, and, holding it, that he was authorized to bind the company in the manner in which they claim that the company has been bound.

The policies thus offered are all signed by the president of the company and by the secretary, and are countersigned, “B. W. Sewell, general agent.” Upon the face of each of them, in bold type, is printed the following, among other conditions, to wit: “ * * * No officer, agent, or other representative of the company shall have power to waive any provision or condition of this policy except such as, by the terms of the policy, may be the subject of agreement indorsed hereon, or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have power, or be deemed, or held, to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the waiver unless so written or attached. * * * This policy shall not be valid unless countersigned by the duly authorized agent of the company at New Orleans.” Upon the back of each of them, in a space provided for that purpose, is a conspicuous “paster” bearing the legend:

“Insurance.”
“B. W. Sewell, Jr.”
“607 Hennen Bldg.”
“New Orleans.”

Several bills for premiums, which we find in the record, some bearing date before, and some after, May 31, 1898, aré made in the name of “B. W. Sewell, Jr., general insurance agency, 607 Hennen Building,” and we conclude that Mr. Sewell was doing a general insurance agency business, as well whilst he was the agent of the defendant as after-wards. At the date of the trial, however, in December, 1899, he had given up the insurance business entirely, and was otherwise employed. It is further shown that the plaintiffs had previously obtained from the defendant, through Mr. Sewell, at least four certificates of marine insurance on live stock and that they all, with the exception of the second one issued, had the type-written slips attached, and were otherwise identically the same as the certificates here sued on; said certificates, as also the certificate sued on, bearing the signature of the secretary of the company, but none of them bearing the signature r-f Mr. Sewell. It further appears from the record that, by reason of bad weather, a number of the cattle and hogs insured were killed, and others were crippled, on the voyage, but that the ship reached port and a considerable portion of the consignment was landed in Havana and sold, so that there was not a total loss.

Opinion.

It is not disputed that unless the plaintiffs can, in some way, eliminate the stipulation, or condition, upon the type-written slip from the contract upon which they sue they have no case. Upon the subject of their attitude with respect to the said slip there is a marked failure of correspondence between their probata and their allegata. They allege, in substance, that they did not notice the slip, did not read it, and were not apprised of its meaning, until after they had paid the premium to the messenger by whom the certificate was delivered, and he had taken his departure from their office. Upon the other hand, Mr. Isaacson, to whom the certificate, with the slip attached, was delivered, states in his testimony that he recognized the presence, and the significance, of the slip before the messenger who delivered the certificate left his office, and that, whilst he gave the messenger a check for the amount of the premium, he also charged him with a verbal message to Mr. Sewell in the nature of an objection to said slip. But, and here the averments of the petition and the proof offered to sustain them again fail to connect. Mr. Isaacson did not charge the messenger with the return of the certificate and of the objectionable slip. It is alleged in the petition, in substance, that the plaintiffs, by means of a letter to B. W. Sewell, agent, upon the evening of December 3rd, 1898, refused to receive the certificate with the limitation imposed by said type-written slip; but the fact is, the “certificate with the limitation imposed” had actually been received by Isaacson from the hands of Sewell’s messenger before the letter to Sewell was written, and Isaacson, knowing all that there was to be known concerning said certificate, and, nevertheless, retaining it in his possession, had given his film’s check for the premium called for by it. We find this course of conduct irreconcilable with the verbal and written protests upon which the plaintiffs rely, and we can readily sympathize with the error into which the plaintiffs’ counsel appear to have fallen in drawing their petition, since it is difficult to understand why a business man should retain a certificate of insurance and pay the premium thereon, and, at the same time, repudiate the contract represented by such certificate; and it is equally difficult to understand what is meant, when, after having received and paid for it, and whilst still holding it in his possession, and with no offer to return or surrender it, such person writes a letter “refusing to receive” such certificate.

Taking the situation as the plaintiffs have presented it, the question arises, whether they are to be held as having accepted the contract tendered them, by reason of their having paid the premium as called for, and their retention of the certificate; or, whether they should be considered to have rejected and declined such contract, by reason either of the verbal message sent through the collector of the insurance agent, or of the letter written to such agent. The live stock, it will be remembered, were shipped on December 2nd and the certificate was delivered during the afternoon of December 3rd, whilst the letter was not written until later in the evening. Let us suppose that in the meantime a loss had occurred within the meaning of the type-written slip, is it not likely that the plaintiffs would have claimed that, by retaining the certificate and paying the premium, they had entitled themselves to recovery % But, if plaintiffs’ present position be tenable, then there was no contract (notwithstanding their retention of the certificate and their payment of premium), up to Sunday morning, December 4th, when Isaacson accidentally met Sewell at the postoffice; and whatever contract there- is is the result of the conversation which took place between those two gentlemen at that time. The evidence shows, however, that the meeting was accidental and that Isaacson had not expected to see Sewell until the following day, Monday; so that, from Friday, the 2nd, until Monday, the 5th, according to the theory now propounded, Mr. Isaacson did not expect that there should have been any insurance, and the S. S. Miguel Jover, with the uninsured live stock on board was in the meantime expected to have been well on ifs way to Havana and might easily have been at rest, forever, beneath the waters of the Gulf of Mexico. But, taking it as we have it, and assuming that there was no contract whatever, Mr. Isaacson met Mr. Sewell, by accident, at the postoffice, on Sunday morning, and attacked him about sending him, “another one of those slips,” that is to say about sending him a written instrument purporting to insure valuable property for a consideration, to the conditions of which Mr. Isaacson objected, and thereupon Mr. Sewell said, in substance: Uncle Alf, they put those slips on all those kinds of policies; no question will be raised in regard to it; do not bother about that, you will never have any trouble with the company.” And the contract, theretofore dormant, or non-existent, is supposed to have been vitalized at this point and by this language, taken in connection with the apparently silent acquiescence of Isaacson. But it is evident that the language used is insufficient, by itself, to bind anyone, since neither insurance, nor live stock, nor premiums, nor obligations of any kind are mentioned, and still less specified. We must, therefore, in order that it should .subserve any useful purpose, 'hold that such language gives effect to certain provisions of the written instrument to which it refers, to the exclusion of the remaining, and equally important, provisions; and, the whole instrument being made the basis of this suit and being annexed to and made part of the petition herein filed, we must ascertain its meaning, not from the instrument itself, but from this conversation, which took place concerning it, and which is said to have given it whatever effect it may have. It is said that the conversation whilst giving the effect of a contract to one part of the instrument eliminates certain provisions affecting the character of the risk. But if we are to determine from the conversation, and not from the writing, whether the defendant insured against injury and partial loss as well as against total loss, we might also determine from the conversation whether there were two hundred head of cattle insured or two thousand; whether they were insured for a voyage to Havana on the steamship Miguel Jover, or for a voyage to Liverpool on the brigantine “White Wings;” and whether the premium was forty dollars or four hundred dollars; and we should find ourselves preferring the contemporaneous verbal version of a contract which the parties had seen fit, for greater certainty, to reduce to writing. It will be observed that this is not a case where the parties to a contract, after it had been made and reduced to writing, became dissatisfied with certain of its conditions and, by a new contract, agreed to abrogate or waive them. The proposition here is that there was a contract, but that the written instrument which was agreed upon as evidence thereof, and which is declared upon as expressing such contract, contains stipulations which the parties have always known were there, which they have always known did not express their meaning, but which, from the beginning, were allowed to remain conspicuously in such written instrument, with the verbal agreement that they should not be held to mean what the language used plainly imports.

The plaintiffs cannot, and do not, pretend that they did not know the meaning and intended effect of the type-written slip. They had, on a former occasion, received a certificate with such a slip attached, and had objected to it. It is said that, as a consequence of this objection, they, on the next occasion, were furnished with a certificate without the slip. But it is conceded that, upon two still later occasions, they received certificates with the slips attached. Moreover, this particular case arises out of the fact that the plaintiffs knew what the language of the slip was and objected to it because they knew; and yet, notwithstanding this, and notwithstanding the fact that they do not, and cannot, allege either fraud or error with respect to its presence in the instrument upon which they sue, they ask this court to consider that language as unwritten or to hold that it has no meaning, upon the ground that it was verbally agreed between their Mr. Isaacson and the defendant’s agent, Mr. Sewell, when the contract was made, that it should be so considered, or held, and that the written instrument in which it was allowed to remain should be construed as though it had been eliminated therefrom. This position we think untenable, under the law and jurisprudence of this State. It is true that, in a proper case, it is unnecessary to resort to a separate action to reform a contract of insurance, the courts of this State having jurisdiction to reform such a contract, and to grant further relief in the same proceeding. Lippincott vs. Insurance Co., 3rd La. 546. But it is plainly a condition precedent to the further relief which the plaintiffs are seeking, that the contract upon which they sue should be reformed, since, upon their own showing, they are entitled to nothing under it, in its present shape. They are not, however, in a position to allege, and still less to prove, the facts which would be necessary to entitle them to reform the contract in question, and the parol evidence, offered for the purpose of establishing, in its place, a contemporaneous verbal contract, was open to the objection, which was made, and should have been sustained, that it varies and contradicts a written instrument.

“A policy of insurance may be reformed, where it is demonstrated, by legal and exact evidence, that there has been a mistake in filling it, which has violated the understanding of both parties.” Davega vs. Ins. Co., 7 Ann. 228.
“When a policy of insurance, as issued, does not conform to the contract which it purports to evidence, and the assured accepts the policy in the belief that it does conform to his contract, a court of equity will reform the written instrument.”
* * * . * * * * *
“The want of conformity must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a ground for rescinding, but not for reforming the contract. Where the minds of the parties have not met there is no contract, and hence none to be rectified.”
* * -x- -x- * * * *
“It is not sufficient that the plaintiff should prove this by a preponderance of evidence, but he must establish the fact by such evidence as to show conclusively that a mistake had been made, and to satisfy the court and the jury of such mistake beyond a reasonable doubt.”

A. & E. Ency. of Law, 2nd Ed., Vol. 16, pp. 869, 810.

The plaintiffs in this case do not allege that there was any misunderstanding or mistake as to what the contract upon which they sue was to contain, nor do they allege that anything was left out that they expected would be put in, or was put in, that they expected would be left out. Their whole case lies in the proposition that there was a contemporaneous verbal contract, which not only varied, but, practically, superseded, the written contract into which they entered, and upon which they sue. This, however, they are not entitled to prove over the defendant’s objection. “As, in case of other written contracts, parol evidence is inadmissible to vary or contradict a written policy or contract of insurance.”

A. & E. Ency. of Law, 2nd Ed., Vol. 16, p. 966.

Courtney et als. vs. Ins. Co., 12 La. 233

Bell vs. Ins. Co., 5 R. 423.

Woodruff vs. Ins. Co., 5 Ann. 691.

Trager vs. Ins. Co., 31 Ann. 235.

Gomilla vs. Ins. Co., 40 Ann. 553.

Weinberger vs. Ins. Co., 41 Ann. 31.

This view throws the question of the extent of Sewell’s authority into the background, as a matter of little consequence. We think, however, that the evidence which the plaintiffs themselves have offered, that is to say, the policies produced by them, shows that they knew, or were in a position to know, that Sewell was without authority to waive any of the provisions of a fire policy except by writing indorsed upon, or attached to, such policy. And there was nothing to have led them to believe that he had any greater authority in the matter of marine insurance. Upon the contrary, it must have been within their knowledge that, whilst he signed fire policies as general agent of the company, his name did not appear upon the certificates of marine insurance at all.

It is claimed that if certain testimony which plaintiffs endeavored to get before the judge bad not been improperly excluded, tbe plaintiffs would have shown that the defendant had knowledge of the fact that Sewell had agreed to the ignoring of the type-written slip, and that, after the loss, with knowledge of all the facts, the officers of the company were ready to settle.

The three bills of exception relied on in this connection show that the plaintiffs’ counsel excepted to the ruling of the trial court in excluding testimony to prove that Maier, the secretary of the company, after the loss, told plaintiffs “to go and see Noll, of the Teutonia, and see what they” (the Teutonia Insurance Co.) “would do; that they, the Germania, only had part of the risk, having re-insured most of it, but would only be too glad to pay their'part.”

Assuming that plaintiffs could have proved that Maier made, this statement, we do not think that it would make the company of which he is secretary liable for a loss which had already occurred, and for which it was not liable upon any other ground. To hold otherwise would be to hold that the money of an insurance company is at the disposal of the secretary, to be disbursed as he pleases, and without regard to whether claims presented are just or unjust.

Other exceptions which we find in the record it is unnecessary to pass upon.

Judgment affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,815.
    Wright-Blodgett Company, Limited, vs. Charles S. Elms.
    Syllabus.
    1. Where answers to interrogatories on facts and articles all taken together present a complete answer to all the interrogatories taken together, the court will not order one of the interrogatories to be taken for confessed on an objection that the answer to that particular interrogatory was evasive.
    2. A party in answering an interrogatory, on facts and articles may state some fact as to which he is not directly interrogated, if it tends to his defense and is closely linked to the fact on which he has been questioned.
    3. Answers of a party to interrogatories on facts and articles relative to a verbal sale alleged to have been made by him of immovable property, which negative such a sale, cannot be contradicted by parole evidence.
    4. A person in possession of writings received by him from another person which do not per se evidence a sale by the latter to him of the real estate referred to in the writings, cannot, in order to establish such sale, eke out the writings by parole evidence on the ground that he had furnished a beginning of proof.
    APPEAL from the Twelfth Judicial District, Parish of Calcasieu— Read, J.

      Pujo & Moss, for Plaintiff, Appellant.

      Bompayrac & Toomer, for Defendant, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff alleged that it had, on the 20th of December, 1899, purchased through its agent, from the, defendant, certain described property, situated in the Parish of Vernon, aggregating about 3064 acres more or less. That the agreed consideration for the purchase of said lands was $11,932.32, and that said consideration was to be paid cash to the said Elms upon execution of proper deed, and provided his title to said land was good and valid. That on December 21, 1899, the said Elms notified petitioner in writing, in said capacity, that he would not make title to the land and that he intended to sell to some one else.

That, thereupon, petitioner made due and legal demand on December 21, 1899, in writing, for transfer of the lands in accordance with the previous purchase, and, in reply thereto, petitioner received a letter from said Elms, refusing to make said transfer, said letters being annexed for reference.

That petitioner had plats checked by the said Elms showing a description of the property and other written memoranda as to the acreage, and various prices for different portions of the land and total aggregate of the purchase price, but through a superabundance of caution deemed it proper to address interrogatories on facts and articles to the said Elms, to be answered in the manner provided by law. That on the 23rd day of December, 1899, the said Elms informed the attorneys of petitioner that he would not deed the land to him, hence petitioner averred that no formal tender was necessary.

That petitioner purchased the above described property for the consideration of $11,932.32 to be paid cash, which he was ready and willing to do upon the execution of proper transfers of the property, with good and valid title, and he verily feared that the defendant, Elms, would take advantage of the fact that he had not executed acts of sale for said property to petitioner, and sell or dispose of it to some one else during the pendency of this suit, to the great and irreparable injury and damage of petitioner.

That petitioner was entitled to the issuance of a writ of injunction, prohibiting the said Elms from selling or disposing of the properly hereinbefore described during the pendency of this suit. That he was', also, entitled to have interrogatories on facts and articles annexed, answered on oath and categorically.

The premises considered, petitioner prayed that a writ of injunction issue, restraining and prohibiting the said Oharles S. Elms from selling or disposing of the property described during the pendency of the suit. That the interrogatories on facts and articles annexed should be answered on oath and categorically at such time as might be fixed, or upon his failure so to do, the facts concerning which he should have so refused and neglected to answer, should be taken as confessed.

That he might be duly cited; and after legal delays and due proceedings that petitioner do have and recover judgment maintaining the writ of injunction sued out and commanding and ordering the said Elms to execute and deliver to petitioner, within a reasonable time after the rendition of said judgment, good and valid title to the property hereinbefore diescyibed upon Ipayment off the purchase price thereof.

An injunction issued as prayed for, and the defendant was ordered to answer, in open court, the interrogatories on facts and articles propounded on the second day of the next session of court.

The interrogatories propounded were:

1st. — Whether he did not on the 20th of December, 1899, sell to the plaintiff through their agent, Michael Kelly, for cash, the land described in the petition ?
2nd. — Was not the aggregate of the purchase price thereof $11,-932.32?
3rd. — Were not 2919 30-100 acres sold to said company at $4 per acre, and 41 91-100 acres at $3.50, and 203 39-100 acres at $2.50 per acre?
4th. — Have you not refused to execute and deliver proper and sufficient title thereof to said company ?
5th. — Have you not attempted to sell this land to some one else, and for a greater sum to your profit, net ?

Plaintiff filed an amended petition, in which it alleged that the company was a partnership association, limited, organized under the laws of Michigan, and that Michael Kelly was at the time of the filing of the petition and was still, a partner in said association. That said Kelly was the agent of said partnership association at the time of the petition, and that at said time there was no other member of said association, or agent therefor, in the State of Louisiana.

That the defendant sold the property described in the original petition on the 20th day of December, 1899, by his written proposition to that effect, which was accepted by the plaintiff company as embodied in the eight plats, and the copy of the letter which it attached and made part of its amended petition. That the prices asked for the defendant properties by the defendant and agreed to by the plaintiff were a» given in the statement, embodied in this supplemental petition. That said plats, upon which were checked the description of the land sold to the plaintiff, together with the prices thereon, were delivered by the defendant to Michael Kelly as agent of the plaintiff on the 20th of December, 1899, and said checks and prices were in the handwriting of the defendant and contained a complete and full description together with the prices of the land purchased by the plaintiff. The plaintiff annexed to this petition interrogatories on facts and articles which it prayed the defendant might be ordered to answer in open court, or, in default thereof, that they be taken for confessed. Defendant was ordered to answer the interrogatories in open court.

The interrogatories propounded were: 1st. — Is not the checking in blue pencil, together with the prices appearing in the eight township maps attached to the supplemental petition, in your handwriting? 2nd. — Were not these checks and prices made by you? 3rd. — Did you not deliver said eight township maps to Michael Kelly in the presence of Chester Brown at about 6 o’clock P. M. December 20th? 4th.— Did you not receive a letter from Messrs. Pujo & Moss of date December 21st, a copy of which was annexed to the supplemental petition? 5th. — Did you not telegraph, on December 20th, 1899, to Mr. Ernest Wesche or J. D. Lacy, of New Orleans, that you had sold the land described in said plats to Wright-Blodgett & Co. or to Mr. Michael Kelly?' If you say you did not, attach original or copy of telegram ceut to said party concerning the lands in dispute. 6'th. — Did you not, when the plats wore delivered to Mr. Kelly, in presence of Mr. Chester Brown, say: “Here are the descriptions and the prices; the lands are yours”- — or words to that effect? 7th. — Did you not write or have written and signed the letter of date December 21st, 1899, addressed to Mr. M. Kelly, agent of the Wright-BIodgett Co., attached to the supplemental petition?

The plaintiff excepted to answering the interrogatories on facts and articles on the ground that plaintiffs “were not in possession nor pretend to have ever been in possession of the lands to which they advert.”

The court overruled the exception, and the plaintiff, under the reservation of the exception, answered as follows:

To the original inten'Ogatories.
Answer to 1st interrogatory. No.
Answer to 2nd interrogatory. As there was no definite sale between Mr. Kelly and myself, I did not aggregate his prices which I was consid< ring and which I expected to. accept' in the event of Mr. Underwood not accepting the land.
Answer to 3rd interrogatory. As’there was no definite sale between Mr. Kelly and myself, I did not aggregate the acreage sold at different prices.
Answer to 4th interrogatory. Tes.
Answer to 5th interrogatory. Tes; for I considered the lands sold to Mr. Underwood for a greater price than Mr. Kelly offered me.
Answers to supplemental inteiTOgatories.
To 1st interrogatory. Tes.
To 2nd interrogatory. Tes; they simply reduced to writing Mr. Kelly’s offer for the land.
To 3rd interrogatory. Tes.
To 4th interrogatory. I did.
To 5th interrogatory. I did not. (Here witness offered ten telegrams and answers.)
To 6th interrogatory. I did not.
To 7th interrogatory. I did.

Plaintiff suggesting that defendant’s answers to interrogatories 2 and 3, annexed to the original petition, had not been answered categorically; that the answers were evasive, insufficient and not responsive, prayed that they might be taken for confessed.

The court ordered the answers to be struck out, but refused to have the interrogatories taken for confessed.

The defendant answered, pleading first the general issue. He then alleged that the injunction which had issued was wrongfully, libelously and maliciously, sued out; that it was obtained without ground in law or equity, and it should be set aside. He prayed that it be dissolved, with damages, in the sum of nine thousand dollars, for which he asked judgment in reconvention. This claim in reconvention was subsequently discontinued under reservation of defendant’s right to sue for the same in another action.

The injunction was dissolved by judgment of court on the 14th of January, 1900.

J. Platt Underwood, whose name was mentioned in the interrogatories on facts, filed an intervention, joining the defendant in his prayer to have the injunction set aside; but he discontinued the same before the case went to trial. In his petition he claimed that on the 20th of November, 1899, the defendant had given authority until the 6th of December, 1899, to T. D. Lacy & Co., brokers, in New Orleans, to sell these lands. That the authority to sell had been extended to December 20, 1899. That on this last date, and before the expiration of the authority conferred upon them, Lacy & Co. agreed to sell the lands to him. That he had caused the evidence of this agreed sale to be properly and duly recorded, but the formal deeds of sale had not yet been executed by reason of defendant’s injunction; but he had demanded of the defendant that deeds should be executed. He denied that the defendant had ever sold the lands to the plaintiff company; but if he had, the sale would have no effect as against his recorded claims, as no evidence of said sale from the defendant to the plaintiff had been recorded. He prayed that the plaintiff’s demand be rejected.

The District Court dissolved the injunction, rejected plaintiff’s demand, and dismissed his suit with costs. The plaintiff appealed under an order of appeal granted by the clerk of court in the absence of the district judge.

The defendant moved to dismiss the appeal on the ground that no return day had been fixed by any officer authorized and empowered to £x the same. That the order of the clerk of court fixing the 14th day of January, 1901, for the return day of said appeal was null,, void and of no effect, because the right power and authority to fix the return day of an appeal from the District Court from the Parish of Calcasieu vas vested solely in the judge of the Fifteenth Judicial District Court. That it was at suggestion of counsel for plaintiff and appellant that the clerk fixed the day. In the' event this ground be deemed insufficient, defendant moved, as another ground for dismissal, that the appeal bond filed by. the appellant was not signed by a surety competent to sign the same; that it was patent on the record that W. J. Martin, who signed said bond as surety, was not in law a competent surety because he was surety on the injunction bond, and the injunction was dissolved.

Opinion.

On Motion to Dismiss.

The motion is denied. The second ground assigned has not been urged, and the first is not well grounded. The district clerk had authority to fix the return day.

On the Merits.

Plaintiff’s action was based upon the theory and allegation that a sale of certain lands had been made between themselves and the defendant on December 20, 1899, but that no formal act of sale had been executed between them; that, in consequence of that fact,-the situation was such as not to enable them to place of record the rights and obligations of the parties in Calcasieu Parish. That the defendant was not only in position to avail himself of that circumstance to dispose of the lands to third parties to their prejudice, but that he was in fact about to do so, and that an injunction was necessary for the protection of their vested right of ownership.

The situation, as disclosed by the evidence, is that the defendant was a dealer and also a broker in real estate; that it was a customary method in Calcasieu Parish for parties desiring to sell lands, to give to parties engaged in the brokerage business what are termed “options” extending up to a certain period, and having obtained them, the brokers to grant themselves similar options to parties desiring to purchase from them these same lands or others. These dealers or brokers, with a view to their business, had supplied themselves with plats of the lands in different townships and ranges. It appeal's that the defendant had on, and prior to December 20, 1899, granted one of these “options” for the lands involved in this litigation to Lacy & Co., brokers in land in New Orleans, who were acting in this matter for and on behalf of one J. Platt Underwood. This option was to extend up to and include the 20th of December. The plaintiff company, it would appear, was desirous of purchasing these same lands, and the defendant was uncertain of the final action of Lacy & Co., or Underwood in the matter. Under these circumstances, the plaintiffs, through their agent, Kelly, and the defendant, at a meeting between them on December 20, 1899, entered into negotiations with each other looking lo a sale of these properties to the plaintiff. The lands were of different kinds and of different values. The defendant, being in possession of plats of the townships in which the lands were situated, exhibited them to Kelly, and in the course of the negotiations different sections and sub-divisions of townships were cheeked by the defendant with a blue pencil mark, and on some of these plats, either at the foot of the plat, or in the body of the same, are given in lead pencil the acreage of, and the price of, different tracts. When the parties parted, the plats were placed into the possession of Kelly. There is no written evidence of what occurred at the interview between the parties. The plaintiff relies upon Kelly’s possession of these plats with the check marks and the figures upon them, coupled with what they aver defendant said and did upon the occasion of the interview between himself and Kelly, as having given rise to a completed sale of the property by the defendant to the plaintiff. That these plats, with'the marks and figures upon them, did not per se evidence a sale of the properties, is evident.

When produced, we are left in the dark as to what the facts and the circumstances were under which these marks and figures were placed upon the plats, and those under which the plats themselves were delivered to Kelly. The plaintiffs themselves were aware when they instituted this action of the insufficiency of the evidence which they held to make their claim of title good, for they were forced to have recourse in order to supplement the presumptions which they thought might arise from their possession of the plats, to propounding interrogatories on facts and articles to the defendant as to what took place between them at the interview.

The defendant answered the interrogatories after unsuccessfully excepting to the right of the plaintiff to propound the samé to him. In support of the objections so urged by him, he relied upon the provisions of Articles 2440, 2275 and 2462 of the Civil Code.

These articles declare that every transfer of immovable property must be in writing; but if a verbal sale or other disposition of such property be made, it shall be good .against the vendor as well as the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the property thus sold. (Article 2275 O. C.) That all sales of immovable property shall be made by authentic act or under private signature. That except as provided in Article 2275, every verbal sale of immovables shall be null as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted (0. O. 2440) ; that a promise of sale amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price thereof, but to have its effect, cither between the contracting parties or with regard to other parties, the promise to sell must be vested with the same formalities as are prescribed in Articles 2439 and 2440, concerning sales in all eases where the law directs that the sale shall be committed to writing.

The defendant contended that the plaintiffs did not pretend that they were in possession of any of the lands which they claimed to have purchased.

The answers given by the defendant negative the pretentions of the plaintiff company. The latter moved to have the answers given by the defendant to the 2nd and 3rd interrogatories annexed to the original petition, struck out, and that the facts in respect to which the questions were asked should be taken for confessed, for the reasons that they were evasive. The court struck out the answers, but refused to have the interrogatories taken for confessed.

The precise relevancy and bearing of the answers given by the defendant do not appear on the face of the questions and answers themselves, but do appear when read by the light of the pleadings and the evidence taken on the trial. We think the court’s refusal to allow interrogatories Nos. 2 and 3 to be taken for confessed, was correct. In Bond vs. Bishop, 18 Ann. 547, it was held that “where the answers to interrogatories on facts and articles, all taken together, present a complete answer to all interrogatories taken together, the court will not order' one of the interrogatories to be taken for confessed, for the reason that the answer to that particular interrogatory appears evasive, it appearing that it has been fully answered in the answer to another interrogatory.”

We adhere to this ruling, which is applicable to that made in this case by the district judge. Under the view we take of the rights of parties, the action of the District Court in striking out the particular answers made by the defendant to interrogatories Nos. 2 and 3 does not affect the situation, but these answers state facts closely linked with the subject matter under investigation and to the questions asked, and defendant, in our opinion, was authorized to give the answers he did, under the terms of Article 353 of the Code of Practice. That article declares that “in answering a question the party must simply confess or deny the fact.” Nevertheless the party interrogated may state some other facts tending to his defense, provided they be closely linked to the fact on which he has been questioned and an appeal made to his conscience.”

His declaration in such a case shall have as much effect as his answer to the question itself.

On the trial of the cause the plaintiff attempted to contradict the answers given by the defendant to the interrogatories propounded by the testimony of Kelly and one Dickens, but was met by the objection of the plaintiff that answers of a party to interrogatories on facts and articles as to a verbal sale of immovable property could not be contradicted by parole evidence; that the provisions of Article 354 of the Code of Practice to the effect that “the answers of the party interrogated are evidence, but do not exclude adverse testimony, and that they may be destroyed by the oath of two witnesses or of one single witness corroborated by strong circumstantial evidence, or by a written evidence,” do not extend to answers touching verbal sale of real estate.

This court has frequently decided that the answers of a party interrogated as to a verbal contract to transfer real estate can not be contradicted by parole evidence (C. C. 2255-2415) ; that the law forbidding parole proof of such transfers could otherwise be evaded by putting interrogatories under a charge of fraud and contradicting the answers when in the negative. That Article 354 of the Code of Practice must be construed with other provisions of law, and authorizes oral evidence only when admissible. That when answers supply the place of written proof in' eases where such proof is necessary, they cannot be contradicted by parole.

(Bach vs. Hall, 3 La. 119; Haydell vs. Batts, 6 Rob. 438; Baudue vs. Conrey, 10 Rob. 473; Marionneaux vs. Edwards, 4 Ann. 103; Stocks vs. Ferguson, 10 Ann. 132; Semere vs. Semere, 10 Ann. 704; Knox vs. Thompson, 12 Ann. 114; Godwin vs. Neustadt, 42 Ann. 739.)

The testimony objected to was permitted to be introduced. Kelly, plaintiff’s agent, and one Dickens, testified in respect to the alleged sale.

'This testimony should not have been admitted, and having been received over defendant’s exceptions thereto, it can have no effect. Were we to. recognize plaintiff’s title to the lands in controversy, it would be the recognition of a title resting essentially upon parole evidence. The plats annexed to plaintiff’s, petition with the pencil’s marks and figures thereon prove nothing per se in regard to a sale of these lands. In order to give them any probative force it would be necessary that plaintiff’s connection therewith should be established.

If through answers by plaintiff to interrogatories on facts and articles, which are authorized under certain proper circumstances to be propounded, he had admitted that the marks and figures on the plats had been made by himself, and that the plats with such marks and figures upon them had been placed by him in the possession of the plaintiff, there would still be lacking proof essential to the establishment of a sale of immovable property. The evidence of an “aggregatio mentium ” as to the transfer of the ownership of the property of a consent to a sale would be lacking.

Consent is the essential basis of a contract of sale, and in the absence of consent, shown by legally authorized evidence, there could be no shifting of title. The mere receipt by plaintiff from the defendant of these plats with marks and figures placed upon them by the latter, would give rise to no presumption of a sale between the parties of the lands appearing therein. This could have well happened and been done for purposes entirely distinct from a sale. The evidence of a legal character furnished by the plaintiff herein falls short of the proof needed for the establishment of a sale. The proof furnished did not advance far enough for that purpose in the direction of written proof, and! the plaintiff was not authorized to eke out insufficient legal evidence by parole evidence on the ground of some “beginning of proof.”

In the case of Patterson vs. Blois, 4 La. 378, this court, referring to this subject, said: “The introduction of parole evidence has, however, been attempted to be claimed on the ground of some beginning of proof. Whatever may have been the law in regard to the faculty of introducing parole evidence after offering a beginning of proof in writing, our present Codes are absolutely silent in this regard; and the former part of our jurisprudence must share the fate of the legal provisions existing before the new Codes of which they make no mention.

The paiole testimony referred to having been illegally received and plaintiffs case being deprived without it of any basis to rest upon, it would serve no good purpose to discuss it. It is sufficient to say that it is wholly at variance with plaintiffs version of the situation.

After the court had permitted Kelly and Dickens to give testimony in the case, the defendant, under reservation and benefit of his exceptions thereto, was placed upon the stand in rebuttal. His testimony was simply an amplification of his answers to the interrogatories which had been propounded to him. He positively negatived the testimony of these two parties. We must not be understood as intimating that plaintiff would have made out its case had the testimony of Kelly and Dickens been legally admissible.

We are of the opinion that the judgment of the-District Court herein appealed from is correct and it is hereby affirmed.

Provosty, J., takes no part. .