text:
    No. 2011
    Second Circuit Appeal
    STANDARD MOTORS FINANCE COMPANY, INC., v. YELLOW BAYOU GIN AND PLANTING CO., INC., ET AL. MAYER BROTHERS, WARRANTORS
    (January 12, 1925, Opinion and Decree)
    (February 20, 1925, Rehearing Refused)

      (Syllabus by the. Editor..)

    1. Louisiana Digest — Chattel Mortgages— Par. 7.
    In a suit on notes for part payment of a farm tractor in which the plaintiff is the purchaser of the notes before maturity, defendant is the maker, and the seller is the endorser, the plaintiff can recover against the maker even though the' seller acted as agent of plaintiff in signing the chattel .mortgage.
    2. Louisiana Digest — Bills and Notes — Par. 130.
    In a suit on notes for part payment of a farm tractor in which the plaintiff is the bona fide purchaser of the notes before maturity,' defendant is the maker, and the seller is the endorser, the plaintiff can recover against the maker, even though the tractor proves to be so defective that it is wholly unsuited for the purposes for which it was bought.
    3. Louisiana. Digest — Mandate—Par. 96, 97.
    Knowing of the agent is knowledge of the principal, but where agent did not have knowledge of defects of tractor sold when it was. delivered, no knowledge of defects could be imputed to the principal.
    4. Louisiana'' Digest — Mandate—Par. 22.
    An authorization by a finance corporation to á dealer in tractors to sign .the chattel mortgage and act as its agent limits his authority to this sole function.
    (Civil Code, Art. 2997. Editor’s note.)
    5. Louisiana Digest — Appeal—Par. -588.
    The judgment. of the trial court as to .the warrantor who did not appeal can not be changed by the appellate court.
    6. Louisiana Digest — Appeal—Par. 587, 683.
    A judgment cannot be reversed or amended as between appellees.
    7. Louisiana Digest — Sales—Par. 1, 6.
    "Where it is stipulated in the contract between the manufacturer of farm tractors and the dealer that the dealer is in no way the representative or agent of the manufacturer, the transaction between dealer and manufacturer must be considered, in view of the evidence, as sales from manufacturer to dealer.
    8. Louisiana Digest — Sales—Par. 119.
    Where a planting company ordered a farm tractor from a dealer for future delivery and subject to inspection and test, • the farm tractor was the property of the dealer until the inspection and test was completed.
    9. Louisiana Digest — Sales—Par. 214, 218.
    In view of Art. 2520 of the Civil Code, a farm tractor which proves to be totally unfit for the purposes for which it was bought and utterly failed to come up to the representations made by the dealer who sold it; contains redhibitory vices which allow the avoidance of the sale by the buyer on that account.
    10. Louisiana Digest — Sales—Par. 214, 218, 227, 228.
    In view of Art. 2520 of the Civil Code, where the vital defect to a farm tractor was not known or discoverable on simple inspection but was not discovered, notwithstanding many inspections and efforts until long after the buyer accepted the machine, the sale can be avoided by the buyer for redhibitory vices.
    ON APPLICATION FOR REjHEARING.
    11. Louisiana Digest — Appeal—Par. 424.
    Where the minutes of the district court fail to show that a default has been taken, the court of appeal is without authority to act on an affidavit to that effect and render judgment against defendant warrantor.
    12. Louisiana Digest — Corporations—Par. 212, 303.
    A foreign corporation cannot be forced to come into the courts of Louisiana by an ordinary citation served at the domicile of the Illinois office by an Illinois . . officer.

      Appeal from the Fourteenth District Court, Parish of Avoyelles. Hon. S. Allen Bordelon, Judge.
    This is a suit brought by the purchaser ■ of chattel mortgage notes against the Yellow Bayou Gin & Planting Co., maker, and Mayer Brothers dealers, endorsers. The defense of the maker was lack of consideration due to redhibitory vices in a farm tractor sold to the maker by the endorser. There was judgment in the lower court for plaintiff against the defendant Yellow Bayou Gin & Planting Company, purchaser of the tractor and Mayer Bros., and its component partners, sellers of the tractor in solido. Defendant, Yellow Bayou Gin & Planting Company, appealed. Judgment amended and affirmed as between plaintiff and the Yellow Bayou Gin & Planting Company but reversed as between the Yellow Bayou Gin & Planting Company and Mayer Brothers, giving defendant Yellow Bayou Gin & Planting’Company judgment against the dealers Mayer Brothers, and their component members in solido.
    Samuel Moreau, of Marksville, attorney for plaintiff, appellee.
    W. E. Couvillon, of Marksville, attorney for defendant, appellant.
   CARVER, J.

The plaintiff sues Yellow Bayou Gin and Planting Co., Inc., as the maker, and Mayer Brothers and the two individual members composing that firm as endorsers, of two promissory notes secured by chattel mortgage on a tractor.

The Planting Company denied liability on the alleged ground that the notes were given not for money borrowed but in con.nection wi.th the purchase of the tractor from Mayer Brothers and as representing the credit portion of the price; that the tractor was so defective as to be useless; that the chattel mortgage was passed before one of the Mayers as a notary public and accepted by the other one as agent of the plaintiff; that the notes must be regarded as ordinary vendor’s lien notes, void for failure of consideration not only as to Mayer Brothers but also as to plaintiff, because through its agent, R. E. Mayer, it acted jointly with Mayer Brothers in the sale of the tractor and with full knowledge of the nature of the transaction. It calls Mayer Brothers in warranty.

As a defense to plaintiff’s demand, Mayer Brothers allege that their endorsement was made as an accommodation to plaintiff and that therefore they incurred no liability to, plaintiff but only to subse; quent holders.

As a defense to the Planting Company’s call in warranty they plead that they did not sell the tractor to the Planting Company for their own account but only as agents of the Gulf Farm Tractor Co. of New Orleans to the knowledge of the Planting Company.

They further plead that the tractor was accepted and pronounced satisfactory by the Planting Company after test, and though not charging specifically they inferentially charge and argue that the ' tractor was subjected to improper usage by the plaintiff company.

Alleging in the alternative that the tractor was inherently defective, they call in warranty the Gulf Farm Tractor Co., and also the Bates Machine and Tractor Company, the manufacturers of the tractor.

Service seems not to have been made on the latter company.

The Gulf Farm Tractor Company filed a plea to the jurisdiction. We find no disposition of this plea in the record; but none of the parties complain of this in this court.

The lower court rendered judgment in favor of plaintiff against the Planting Company, Mayer Brothers and its component partners in solido.

The Planting Company appealed. ’ The other defendants did not appeal, but have filed in this court an answer to rejoinder in the- Planting Company’s appeal in which they say:

“That the judgment of the lower court herein should be changed or modified as follows: Plaintiff’s claim should be rejected in full and no defendants held liable, on the' ground that the tractor sold and mortgaged was inherently defective and such a fact was impliedly known to plaintiff.”

1. We think the Planting Company liable .to plaintiff on the notes.

The loan for which they were given was made in plaintiff’s usual way. Being in the business of financing the purchase of automobiles and sometimes tractors, but no dealers therein, plaintiff supplies dealers with blank forms, consisting of notes, chattel mortgages and so called “Purchaser’s Statements.” This latter is an application beginning thus:

“To Standard Motors Finance Co., Inc., “New Orleans, U. S. A.
“For the purpose of securing a loan from you in order that I may purchase one tractor I make the following representations:”

Then follow blank spaces for details as to applicant’s address, value of his property, income, expenses, debts, and other data designed to give plaintiff such information as will enable it to determine as to the advisability of the loan applied for.

The dealer is given authority to sign the chattel mortgage as plaintiff’s agent, probably because the chattel mortgage law requires the mortgagee to sign the act, but his authority is limited to this sole function.

After being executed these instruments are forwarded to the home office of plaintiff in New Orleans and submitted to its executive committee which decided whether to make the loan applied for or not.

In' this case the instruments were executed on May 22, 1920, and forwarded to the plaintiff, which approved the loan on May 31, 1920, and creditéd the proceeds on its accounts against Mayer Brothers.

The chattel mortgage was passed before one of the Mayers as notary and was signed by the other as agent of the plaintiff.

Before finally approving the loan the plaintiff demanded the endorsement of the Planting Company’s officers, but instead of endeavoring to get such endorsement the Mayers gave their own, which plaintiff accepted.

.In support of its defense against plaintiff the Planting Company does not cite a single authority but relies on two reasons, viz: That one of the Mayers acted as agent of plaintiff in signing the mortgage and that the loan was an integral part of the purchase and, in effect, made the plaintiff joint vendor with Mayer Brothers.

Neither reason seems to us good.

The testimony of Troyer is uncontra•dicted to the effect that Mayers’ authority was restricted to signing the mortgage; the approval of the loan being reserved by plaintiff to itself; and this fact must be presumed to have been known by the Planting Company from the initial words of the Purchaser’s Statement above quoted, which was signed contemporaneously with the notes and mortgage.

The applicatian is not to buy a tractor on terms of credit but to secure a loan for the purpose of buying one. If the manager of the Planting Company had supposed that the transaction with plaintiff was closéd by his signing the notes and mortgage there would have been no reason to sign the application.

We think the relation between plaintiff and the Planting Company that of lender and borrower and in'no sense that of vendor and vendee. To hold that the plaintiff in making the loan to buy the tractor was the vendor of the tractor would be a reversal of the legal situation unwarranted by the facts or the law. The situation i,s not altered by the fact that the Planting Company- did not itself get the money. In effect it requested plaintiff to pay it to Mayer Brothers, which was virtually done by crediting it to their account.

Even if the authority of Mayer Brothers as the agent of plaintiff had not been restricted as above mentioned, we do not think the Planting Company could escape liability on the ground that the knowledge of the agent respecting defects in the machine should be imputed to the plaintiff.

Many decisions are cited in support of the proposition that knowledge of the agent is knowledge of the principal. We fully admit the soundness of this legal principle, but it affords no ground of relief to the Planting Company because at the time of the loan the Mayers did not know of the fatal vice, namely, the defect in the oiling system, which vice had not then been discovered. The knowledge Mayer acquired after plaintiff had parted with value could not be imputed to it.

This view of the relation between the Planting Company and the plaintiff makes it unnecessary to resort to the principles governing negotiable instruments.

2. The plaintiff’s judgment against the Mayers cannot be disturbed because they did not appeal. Their answer to the Planting Company’s- appeal cannot avail for that purpose, it being well settled that as between appellees there can be no change.

See Lee vs. Powell Bros, et al., 122 La. 639, 48 South. 134, in which a long line of authorities is cited on the proposition that a judgment cannot be reversed or amended between appellees.

3. We think the judgment erroneous on the Planting Company’s call in warranty. The evidence satisfies us that in selling the tractor Mayer Brothers acted on their own account and not as agents.

They ordered it from the Gulf Tractor Company, which shipped it to its own order with bill of lading attached to sight draft on them.

The Planting Company was unable, of course, to get the machine from the carrier, and Mayer Brothers did so after getting the terms of the shipment modified to the extent of having their acceptance taken instead of cash.

While it is true they ordered the machine for the Planting Company; yet their purchase of it and their sale of it were separate transactions made at different times for different prices and on different terms.

Mayer' Brothers produced a contract between themselves and Gulf Farm Ttactor Company of date December 2, 1919. The first clause of this contract grants to Mayer Brothers the right to sell tractors. The second clause binds Mayer Brothers to arrange for the sale of them to. users at list prices plus freight. In the third clause Gulf Farm Tractor Company agrees to sell the tractors to Mayer Brothers’ “terms”; sight draft with bill of lading attached (with collection charges) f. o. b. factory, Joliet, Ill., hereinbefore described and more especially described in the manufacturer’s 1919 literature at the net prices indicated in the following table:

Clause 9 is as follows:
“It is hereby agreed and understood by and between the parties hereto that the second party is in no way the representative or agent of the first party and has no right to assume or grant any obligations of any kind, express or implied, on their behalf or that will bind them in any way whatsoever.”

Clause 15 provides that the agreement shall continue in force and govern all transactions between the parties thereto until August 15, 1920; the right being reserved to either party, though, to cancel the agreement on written notice.

Mr. G. L. Mayer testifies that at the time the tractor was sold to the Planting Company this contract was null and void, but he vouchsafes no explanation as to how it became so; nor does he produce any other contract or give the terms of such other contract, if ,any.

The tractor was shipped in strict accordance with the contract produced, and if that contract was null and void, as Mr. Mayer testifies, then whatever new one was made must be presumed, in the absence of proof to the contrary, to have been substantially similar to the contract produced in respect of the particular question with which we are dealing, 'namely: whether the contract constituted Mayer Brothers the agents of Gulf Farm Tractor Company or merely its dealers in accordance with the general custom of the automotive trade as well as according to the terms of the. contract produced.

Mr.' Collins, manager of the Planting Company, testifies that he dealt with the Mayers personally and not as agents and did not know from whom they were going to get the tractor.

It is not denied that the Planting Company ordered the tractor subject to inspection and test. Its title, therefore, vested only after inspection and test had been made, but that of Mayer Brothers had vested before that. If the machine had been destroyed on the way to the Planting Company’s mill or, perhaps, even in the hands of the carrier, the loss would have been that of Mayer Brothers.

The testimony also satisfies us that the tractor was totally unfit for the purpose for which it was bought; that it utterly failed, to come up to the representations made by Mayer Brothers; and that it was of no benefit or service to the Planting Company. Indeed, its inherent defectiveness is judicially alleged by Mayer Brothers themselves, as shown by their .pleading in this court above quoted.

These judicial admissions might have dispensed with the necessity of examining the testimony respecting the condition of the tractor. We have, however, examined this testimony carefully and are convinced by it that the defect falls squarely within the definition of redhibition as given in the Civil Code, 2520, which reads as follows :

“2520. Redhibition is the avoidance of a sale on account of some vice or defect in .the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.”

When the tractor arrived at the Planting Company’s station Mayer Brothers undertook to take it out of the car but could not do so. ' Believing this was due to trouble with the magneto, they procured a new one, with the aid of. which they got the tractor out of the car and ran it to the Planting Company’s mill. Trouble developed on the way, thought to be due to the governor. After some demonstration and Mayer’s assurance that the- magneto and governor trouble which had developed were minor defects, the Planting Company accepted the tractor, gave a check for ' the cash part of the price and signed security papers looking to borrowing the rest from the plaintiff.

On the next_ day further demonstrations were made by Mayer’s agent, Couvillon,during which the carburetor caught fire twice. Efforts to use the machine there-after made by the Planting Company and its employees were unsuccessful.

Mr. Collins testifies that if the supply of oil was abundant enough to splash the tractor would go; but when the oil supply got too low to splash the- tractor would heat and would have to be stopped until it cooled off. So great was the heat that it melted the bearings.

Complaints were made to Mayer Brothers who would send their expert mechanics to correct the trouble. The cause of the trouble was supposed to be different things, but after each effort the machine would still fail to work properly. Finally the real, or at least main, cause was found by Rufus Taylor to be the failure to in- • stall in the machine the check valve of the oiling, system, consisting of a steel ball held in place by a pin, the function of which was to prevent the oil from returning to the oil reservoir, permitting it to go into the trough where the piston rod would catch and throw it up to the cylinder bore or piston. Finally all parties seem to have abandoned further effort to put the machine in order.

Mr. Collins testifies that the tractor never made but seven or eight trips, four of which were made by or under supervision of Mr. Couvillon; Mayer Brothers’ mechanic. -

He further says that although the machine had been represented as capable of doing much more work than a mule team, it did not do one-fourth as. much.

Mayer Brothers do not deny his statement as to the representations made and seem to have recognized their obligation as vendors and warrantors by their numerous efforts to put the machine in order, and also by their letter of June 28, 1920, in which they say:

“We want you to know that we expect to stay with you on this sale and see you through. And we regret very much what has happened, and we want you to know that the fault was not ours.”

Counsel for Mayer Brothers cite several authorities on the principle that known defects or those discoverable by simple inspection do not afford ground for redhibition.

These authorities, though, are without application for the reason that the vital defect in this case was not known or discoverable on simple inspection, but, on the contrary, was not discovered, notwithstanding many inspections and efforts, until long after the Planting Company accepted the machine.

Counsel for Mayer Brothers also cite the following cases, namely:

Whitney vs. Reuss, 40 La. Ann. 112, 3 South. 500.

Dreyfous vs. Lourd, 111 La. 21, 35 South. 369.

Advance-Thresher Co. vs. Roger, 123 La. 1068, 49 South. 709.

Edwards & Kirk vs. Plaquemine, etc., Co., 46 La. Ann. 360, 15 South. 61.

McLain vs. His Creditors, 47 La. Ann. 139, 16 South. 764.

On examination of these cases we find the facts in all of them very different from those in the case at bar.

' In the Whitney case, the warranty was only as follows:

1. That all material and workmanship shall be first-class.

2. That the work is guaranteed for one year under fair usage.

' 3. That the liability of the vendor is limited to repairing any defective or broken parts in the shortest possible time.

The defendant had used the machinery to take off three crops of sugar.

The court found that the only defect in the machinery was that certain pinions which should have been of steel were of iron; that no serious injury had resulted to defendant therefrom; and that it was not satisfied that the mill and machinery had received fair usage at defendant’s hands during its erection or its operation during the crop seasons of three years.

Furthermore, the contract provided that the machinery was to he erected, as far as practicable, in the vendor’s shop that defendant might inspect same before delivery to the carrier and that it was so inspected by defendant’s engineer.

In the Dreyfous case the court found that the machinery was of the kind and quality called for by the contract. That it failed to do the desired work was due either to the insufficiency of the power of the engine and unsuitability of the gearing for transmitting the power from the engine to the pumps, or else to the insufficiency of the water supply in the wells. But that plaintiff was not responsible for the trouble, whichever was the case; having furnished articles of the kind and quality called for by this contract his warranty went no further.

In the Thresher case, the plaintiff’s agent made a contract with defendant to furnish and deliver certain machinery on terms and conditions contained in a printed order submitted to defendant and signed by him. This printed order contained limitations on the right of the agent to depart in any way from its terms. The defendant and plaintiff’s agent also signed another contract which was not submitted to plaintiff and which materially altered the terms of the contract sent. The altered terms were beyond the authority of the agent to make, which fact was known to the defendant because so advised by the printed order signed by him.

In the Edwards case, the court did not believe in the existence of the defect alleged by defendant who had used the machine a considerable time, making pay ments thereon from time to time.

The 47th Annual case was evidently cited by inadvertence, the question there involved' being one of vendor’s privilege

It is thus seen that the facts of this case differ from those of the cited cases which are at all pertinent, in that in those cases the defects were regarded by the court as rather silent; whereas in this case it was such as to render the tractor entirely useless, and also in that in those cases the defects were not within the terms of the warranty, whereas in this the defect is. The lower court erred in giving interest from July 2nd, 1920, on both notes. It should have been from July 22nd, 1920, on one, and August 22nd, 1920, on the other.

It is decreed:

1. That the judgment of the lower court as between plaintiff and the Yellow Bayou Gin and Planting Company, Inc., be amended by allowing interest only from July 22nd, 1920, on half the debt, and from August 22nd, 1920, on the other half, and as thus amended it be affirmed. .

2. That as between the plaintiff and Mayer Brothers and the individual members-of that firm the judgment of the lower court remain undisturbed.

3. That as between Yellow Bayou Gin and Planting Company, Inc., and Mayer Brothers and the individual members thereof, the judgment of the lower court be reversed, and that said Yellow Bayou Gin and Planting Company, Inc., have and recover judgment against Mayer Brothers, George L.' Mayer and Reyam Mayer, in solido, for the amount of the judgment rendered in plaintiff’s favor against said Planting Company, to-wit: the sum of fourteen hundred and fifty-three and 32-100 dollars, together with interest thereon at the rate of eight per cent per annum from July 22nd, 1920, until paid, on half the debt, and like interest from August 22nd, 1920, till paid on the other half, and twenty-five per cent addition on said principal and interest for attorney’s fees and costs of both courts.

4. That the right of said Planting Company to recover from said Mayer Brothers and the component members thereof the cash part of the purchase price of the tractor, together with interest thereon, be, reserved.

That as between plainitff and the Planting Company the costs of appeal be taxed against plaintiff.

ON APPLICATION FOR REHEARING

Mayer Brothers ask for a rehearing herein and that they be given judgment on their call in warranty against Gulf Farm Tractor Company, Inc., and against the Bates Machine and Tractor Company of Joliet, Illinois.

The minutes of the District Court fail to show that a default Was' taken against Gulf Farm Tractor Company, Inc., and hence this court' is without authority to render judgment agáinst it.

If the minutes of the District Court were incorrect, they might be remanded to the lower court for correction; but they cannot be corrected so as to show that a default was taken against the party sought to be called in' warranty by mere affidavit.

The Bates Machine and Tractor Company is a foreign corporation and cannot be forced to come into the courts of Louisiana by an ordinary citation served at the domicile of the Illinois office by an Illinois officer.

This court, therefore, is without authority to grant the relief sought and made the basis of the application. for rehearing.

Rehearing refused.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2012
    Second Circuit Appeal
    HARRY BORROSKY vs. HILL, HARRIS & CO., INC.
    (January 12, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 160, 165.
    One who moves into a house built on his land does not necessarily thereby accept it, nor is he thereby estopped from showing in court that the house was not built according to contract nor that the workmanship is defective.
    2. Louisiana Digest — Appeal.—Par. 625.
    The finding of the trial judge on matters or fact concerning the performance of a building contract being clearly correct is affirmed.
    Appeal from the Twelfth Judicial District Court, Parish of Rapides. Hon. J. A. Williams, Judge.
    This is a suit to collect the cost of repairing a leaky roof improperly constructed by the contractor and for damages .caused thereby. There is a reconventional demand by defendant contractor for changes and alterations, which were not paid for.
    Judgment for plaintiff and defendant in reconvention.
    Plaintiff appealed.
    Judgment affirmed.
    White, Holloman & White, of Alexandria, attorneys for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff sues defendant for the sum of $315.00, alleged to be due on account of defendant’s failure to complete in a workmanlike manner a residence which defendant had contracted to build for him. He alleges that defendant was to erect the residence in a workmanlike manner and deliver the same to him in good condition, but, he says, the roof was bad and leaked and that it will cost $275.00 to repair it, and, in .addition, the paper in the house was damaged by water to the extent of $25.00, and that defendant failed to complete some bookcases and some papering, the estimated cost to complete them being $15.00.

Defendant in answer set up that it completed the building according to plans and specifications and denied that it is due plaintiff anything. And assuming the position of plaintiff in reconvention, it alleges that the plaintiff did, during the construction of the building, order and direct certain changes and alterations in the work and ordered some fixtures more expensive than originally contemplated, and that the total charge for extra work and extra fixtures amounted to the sum of $172.96, for which amount it reconvened and asked for judgment.

The trial judge found that defendant is due plaintiff the sum of $65.00, and that plaintiff is due defendant the sum of $164.05, and rendered judgment accordingly. Plaintiff has appealed.

Defendant, plaintiff in reconvention, answers the appeal asking that plaintiff’s demand be rejected in toto and that otherwise' the judgment be affirmed.

ON THE PLEA OF ESTOPPEL

Defendant sets up the plea of estoppel as against plaintiff’s demands based on the fact that plaintiff moved into the residence and used it long before any claim was made for damages on account of defective workmanship or materials.

We do not think the plaintiff estopped himself to claim damages on account of his moving into the house. There is nothing to show that he made formal acceptance of the work and specially approved the roof, which he now claims is bad.

Hé had a rigfit to go into the house. He .was already .in possession of it by virtue of the fact that it was built on his land. He who possesses lots or lands possesses also houses erected thereon. Furthermore, failure of the defendant, contractor, to do the work in a workmanlike manner and to construct the residence in accordance with the specifications was an active violation of his contract, and the moving into and using of the house by plaintiff cannot be considered a discharge of defendant’s liability to respond in damages in case it should develop that the work is defective.

If the point raised by counsel for defendant be well taken, an owner of real estate . could be deprived of taking possession of his own property, in ■ cases of this kind, until and unless he chose to waive his right to require a building contractor to repair defects in the building. Such is not the law.

See Edward Comoz vs. Nayes, 17 La. Ann. 201.

Levy vs. Schwartz, 34 La. Ann. 200.

Police Jury vs. Johnson, 111 La. 278, 284, 35 South. 550.

Where the court said: “We adhere to the decision cited by learned counsel (34 La. Ann. 214), in which it was held that a person who performs a contract unskillfully on the premises of a person who has contracted for a first-class outfit or a person who could not do otherwise than accept the situation, does not thereby waive damages.”

Defendant cites in support of his position the case of Clark vs. Kempter, 3 Rob. 10.

We do not think that case is authority for holding that the mere fact of moving into a building is such an acceptance of the work as to preclude the owner from claiming damages for defect in workmanship or material.

The facts in that case are quite different from those in this case. The other case, DeLambre vs. Williams, 36 La. Ann. 330, cited by counsel, is not in point, as in that case the owner had expressed satisfaction with the work and had paid for it.

In the case at bar, plaintiff did not express satisfaction with the work. And it appears that he paid for the work, the full price, before the work was ever begun. He mortgaged his property and delivered the notes to the contractor when the contract was entered into.

Not only was the house built on his lot, but he had paid the price, so that he was in a manner forced to accept the house, such as it was.

ON THE MERITS

We have carefully read the testimony; we find it conflicting, as is usual in such cases. Some of the witnesses called by plaintiff think the entire roof on one side of the building should be torn off and a new one put on. We can see no reason why it should be necessary to tear away this roof. There is no suggestion by anyone that any of the material is bad. Some of the witnesses think the whole trouble arose on account of there being two kinds of shingles. The builder started the roof on one side with a certain kind of shingle. There were not enough of this. kind to finish the ‘ roof ' and they had some conference with the plaintiff, and whether he agreed to the use of another kind to finish the roof is not clear. That really makes no difference. The facts are that another kind of shingle was used. It is contended that these did not join or combine well with the others; hence the leaks. If that be true, certainly there would be no necessity for tearing off the entire roof. The most that should be expected of the contractor, if he should be required to remove any of the roof and put on a. new one, would be to remove that part of it made of the kind of shingle not originally agreed upon, and complete the roof with the proper shingle. According to plaintiff’s contention, that would remove all defects.

But we are not informed as to what that would cost. Plaintiff witnesses say that the entire roof should be removed and replaced with a new one. We see no reason why that should be done.

Expert roof men testified that the roof can be repaired and made perfectly good at a nominal cost.

That was the view taken by the trial judge and in that view we concur.

We are satisfied also that defendant furnished material and did work for plaintiff not originally contemplated and that plaintiff should bear the expense.

As to the amount that should be allowed' on each side: We have carefully gone over the estimates and figures of the different witnesses and are convinced that our brother of the District Bench has meted out full justice to both litigants. There is no way to be exact in matters of this kind. We note that the District Judge interrogated some of the witnesses, thereby demonstrating his desire to get all the facts. He is doubtless personally acquainted with all of the witnesses. He at least saw them and heard them. We attach great weight to his findings.

For the reasons assigned the judgment of the lower court is affirmed.


author: CARVER, J.

text:
    No. 2033
    Second Circuit Appeal
    LUCKETT & HUNTER v. TEXAS & PACIFIC RAILWAY CO. AND THE DIRECTOR GENERAL OF RAILROADS
    (January 12, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Opened with Reservations)
    (October 21, 1925, Reversed and Dismissed on Rehearing. Sec. 2 La. App. 1554.)
    (March 30, 1925, Rehearing Granted)
    (March 1, 1926, Decision Supreme Court, judgment first rendered by Court of Appeal, which affirms judgment District Court, reinstated.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mandate—Par. 104.
    The authority of party signing bill of lading for the shipper is sufficiently shown by shipper’s evidence, thus making it possible to introduce the bill of lading in evidence.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 167.
    Under the “Live Stock Bill of Lading” the amount of recovery is limited to $150.00. The evidence shows more damage but the liability of the carrier is limited to $150.00, which is the amount of damages allowed.
    ON APPLICATION FOR REHEARING
    3. Louisiana Digest — Carriers of Passengers and Goods — Par. 125, 166.
    The evidence shows that shipper warned an employee of the railroad of the defective condition of the car and the employee promised to fix it but did not. Under these conditions the railroad or director general, whoever had charge of the railroad’s operation, is negligent and liable for damages resultant.
    4. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial judge that the defective condition of car was the cause of injuries to a mule shipped therein and that these injuries eventually caused the death of the mule, being clearly correct are affirmed.
    Appeal from the Thirteenth Judicial District Court, Parish of Rapides. Hon. J, A. Williams, Judge.
    REYNOLDS, J.
    Action by Luckett & Hunter against Texas & Pacific Ry. Co. for $400.00 damages for mule and $50.00 penalty for failure to settle claim in thirty days.
    Defendant denied liability on the ground that it received the shipment of mules from the Public Belt Railroad of New Orleans and that the damage did not occur on defendant’s line of railroad.
    In the alternative, defendant claimed that plaintiff’s damage was limited by the “Live Stock Bill of Lading” to $150.00.
    There was judgment for plaintiff for $150.00 and defendant appealed.
    Judgment affirmed.
    Provosty & West, of Alexandria, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   OPINION

This is a suit for $400.00 damages for the value of one mulé damaged in shipment from New Orleans, La., to'Alexandria, La., and for $50.00 penalty for failure to settle claim within thirty days.

There is a large transcript in the case and many interesting questions have been presented for decision, and they have been ably argued, but we find it unnecessary to review most of them for the reason that the entire case may well be disposed of on the “Live Stock Bill of Lading,” introduced in evidence by the defendant, over plaintiff’s objections. Plaintiff at the time this evidence was offered made several objections to its being allowed, but he has only urged one in his brief', -to-wit:‘ That the “Live Stock Bill of Lading” had not been identified, that is, that the party signing the bill of lading had not been shown to have ha(l authority to sign same. The bill of lading was signed by M. Glaser, H. M. Sheppe. The objection that there is no evidence showing that Mr. Glaser had the authority to bind the plaintiffs is disposed of by Mr. Luckett, one of the plaintiffs, who testified (Trs. p. 16), “I will tell you how we ship." Anyone who happens to be around the office then was authorized to sign the contract.

“Q. So that Glaser, he was the shipper?

“A. I don’t know whether he signed that or not, couldn’t say.

“Q. But you have just 'stated what the custom is — he had authority to sign it?

“A. Yes, sir.”

Under this evidence of defendant, we think the bill of lading was admissible in evidence and especially so since it is the basis of plaintiff’s suit, and without it there existed no contractional relations between plaintiff and defendant.-

Under the bill of lading the plaintiff is entitled to collect for any damage suffered by the mule in shipment from New Orleans, La., to Alexandria, La., for the reason the T. & P. R. R. Co., under the very terms of its bill of lading contracted with the plaintiffs to ship a car of mules and horses for the plaintiff from New Orleans, La., to Alexandria, La., and there is no contractional relation between plaintiff and any one other than the T. & P. R. R. Co.

The shipment originated in New Orleans, La., and was to be shipped to Alexandria, La., by the T. & P. R. R. Co., and under this condition there cannot arise a question as to the liability of connecting carrier. Plaintiff entered into a contract with the T. & P. R. R. Co. in New Orleans by which the T. & P. R. R. Co. bound itself to receive a shipment for plaintiff in New Orleans and ship same to plaintiff in Alexandria, La. We hold, therefore, that the defendant is liable to the plaintiff in damages.

As to the amount of damages, we think there is abundant evidence to establish that plaintiff sustained damages, at the very-least, to the amount of $150.00. The invoice price of the mule was $275.00. Dr. S. B. Staples, a veterinary surgeon, testified (T. p. 31) that the mule died from the bruises received. The contract under which the shipment was made limited defendant’s liability to $150.00, for which amount there was judgment for plaintiff in the lower court.

For the above reasons the judgment appealed from is affirmed at defendant’s cost.

ON APPLICATION FOR REHEARING

CARVER, J.

This suit was brought against the Director General of Railroads and the Texas & Pacific Railway Company. Notwithstanding the fact that the railway company was dismissed from the suit on its exception that at the time of the alleged injury its railway was being operated by the federal government, the case seems to have been tried as though the railway company and not the director general was the defendant and as though the main question was whether the railway company was or was not negligent, although when the decision was rendered it was, of course, rendered not against the railway company but the director general. Even in this court the case has been argued as' though it turned on the question of the railway company’s negligence, and the original opinion herein discussed the case as though between the plaintiffs and the railway company. Really, though, the case is between the plaintiffs and the Director General of Railroads and the question is whether he was or was not guilty of negligence.

We do not mean to hold against the ruling in McHenry Horse Exchange vs. Illinois Central R. R. Co., 148 La. 49, 86 South. 649, that a railroad company is liable for the death of an animal in transit because it fails to show the cause of death where it is carried under a bill of lading providing that the railroad company should not be liable unless its negligence caused the injury.

We think, though, that the director general was negligent in loading the mule on a car which was defective.

The proof shows that this mule, together with a number of other animals, was loaded on February 25, 1920, on a car at the Press street stockpen of the New Orleans & Northeastern Railroad Company in New Orleans to be switched to its connection with the- Texas- & Pacific Railway for shipment to Alexandria. It was carried over the lines of the New Orleans & Northeastern, Public Belt, and Trans-Mississippi Terminal Railroad Companies and delivered to the Texas & Pacific Railway Company.

This car was defective, having the clip or hasp on the bottom of the door broken, állowing too much play between the door and the floor of the car. According to the testimony of Barchy, the door ought to fit tight. The condition of the car was observed by Glaser, the shipper and dealer from whom plaintiffs bought the animal, and also by Luckett, one of the plaintiffs, himself, who was present when the car was loaded.

' Both of these witnesses state that they cdlled the attention of Slim, an employee of the New Orleans & Northeastern Railroad Company,. to this condition, and he promised to fix it. Luckett says, further, that he asked Slim to furnish another car or fix that one and that Slim replied they did not have any other car but that he would fix it.

While in transit from the stockpen where it was loaded to the Texas & Pacific Railway the mule got its foot and leg between the car door and the floor of the car, and on arrival at the Texas & Pacific Railway its leg was caught between the door and floor so firmly that the door had to be opened to free the leg and a platform placed under the mule to' enable it to get up.

It is clear that the condition of the car was the proximate cause of the injury, and that it was negligence to place the mule in the car.

We think the court warranted in taking judicial notice of the fact that the director general was operating the New Orleans & Northeastern Railroad and that hid transportation of the mule began' not at the time he issued the bill of lading but at the time it was loaded at the New Orleans & Northeastern stockpen.

In view of the fact that Slim, with whom Gla,ser and Luckett seem to have dealt in the matter of the loading, promised to fix the.car, we hardly think Luckett guilty of contributory negligence in permitting the loading in the defective car.

The testimony convinces us that injury to the mule by reason of her leg being caught, as stated, was considerable. It is questionable whether it ultimately caused the death of the animal, but certainly the injury Was quite extensive according to the testimony even of defendant’s witnesses, and as shown by the fact that it was kept for about nine days before defendants considered it fit to continue its journey.

The testimony of Luckett shows that on arrival at Alexandria it was in such bad condition that in carrying it to" his barn the mule got down on the ground after going about 100- yards and had to be helped up, and that on the way to the barn they had to let it rest for ten minutes after each 100 yards or so. He further testifies that he placed her in the care of a ' veterinarian who treated her about a month; that the feed, extra attention and care of the mule cost about $40 or' $50, and the veterinarian’s charge $25. He also states that he did not use the mule at all because it was sick, and finally sold her at a loss and with a guarantee that if not all right he would make it good, which he did by refunding the purchase price.

Counsel for defendants question the truth of this testimony, claiming it was an afterthought; but we do not feel warranted in rejecting it as untrue. The mule seems to have been sold some time in April and no account is given if its condition or the care and treatment to which it was subjected between that time and August 4th, when it died.

Dr. Stiples, the veterinarian, testified that he treated the mule while in Luekett & Hunter’s possession for about thirty days; that he saw her every day and gave her medicine; and that he performed an autopsy, finding that the mule had an extremely enlarged heart, distended- to such an extent that the walls were about the thickness of a sheet of paper, and that the liver and kidneys were also enlarged, the lungs congested and the right chest wall showing an old clot.

He further says that the direct cause of death was the hypertrophied condition of the heart. He also says that excessive and continued fever would cause the condition that he found in the mule, and that the heart failure of which the mule died' could have been caused by the bruising and mashing received in transportation. Also that in his opinion it was caused by those bruises. On cross-examination he said that in his opinion the animal did not die from the wounded hind leg. In reply to questions by the court he stated that the postmortem showed there had been a tremendous blow on the right side because of the clot; that the pain and continued fever would cause the condition mentioned. That with a hypertrophied heart a mule might last for months, probably years, but with hypertrophied condition of liver and kidneys the extreme limit would be ninety days. That at the time he treated her he knew the heart was hypertrophied to a certain extent, but could not determine as to hypertrophy of liver and kidneys, and called that a state of depression; that he knew she was pretty sick, and that something was wrong with the liver but could not tell exactly what it was. He further stated that when he first saw the mule her right hind leg was wrapped up to the stifle joint with absorbent cotton and the bandage applied over it; that the wound showed that some antiseptic powder or' dry powder had been applied to the lacerated places, and that she was skinned all over at various places. Also that she was in bad shape; sore all over; and that after the external wounds healed up and especially that on the right hind leg, which was very sore and stiff, she moved around much better than when he had first seen her. Also that when he discharged her there was nothing radically wrong that he could put his fingers on; only general depression. That she ate' all right and seemed to .move around all right, but seemed depressed. He also said that at the time he discharged her the swelling was., not completely gone and that she moved her leg with a perceptible stiffness in it.

Luekett and Glaser both testify that the' mule, when originally shipped, was in good condition.

Even if the death of the mule was not due to the injury received in transit, we are satisfied that these injuries were considerable and that the judgment of the lower court allowing $150.00 does substantial justice between the parties.

Rehearing refused; but right reserved to the director general to apply for a sec-, ond rehearing if he claims that at the time the mule was loaded at the stockpen of the New Orleans & Northeastern Railroad he was not operating that railroad.


author: REYNOLDS, J.

text:
    No. 1911
    Second Circuit Appeal
    SAM CHARROTTE v. LOUISIANA COLLEGE
    (Jan. 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Fraud—Par. 3, 10.
    He who alleges a fraud must prove fully. It does not suffice that he introduced evidence that rendered it probable.
    2. Louisiana Digest — Fraud—Par. 3.
    Fraud will not be inferred from slight presumptions.
    3. Louisiana Digest — .Obligations—Par. 101, 104 Builders and Buildings — Par. 19.
    Under a contract whereby the contractor was to furnish all the shingles necessary to complete a contract of roofing, it necessarily follows that the shingles left over after the job was completed belonged to the contractor.
    Appeal from the Parish of Rapides, Hon. L. L. Hooe, Judge.
    Action by Sam' Charrotte against Louisiana College for $217.60 for balance due on contract and for 3 squares of shingles.
    Judgment rendered for plaintiff. Defendant appealed, affirmed.
    J. B. Nachman, of Alexandria, attorney for plaintiff, appellee.
    Hawthorne and Stafford, of Alexandria,, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit of Sam Charrotte 'against the Louisiana College for the sum of $217.60, made up of two items.

1. $160.00 claimed as balance due on contract to furnish material and labor for roofing the Administration Building, of Louisiana College.

2. $57.60 claimed for 3 squares of shingles used by the defendant, which plaintiff claimed was his property.

Defendant claims in its answer that the contract sued on was obtained through fraud a roof on the Administration Building of the Louisiana College was paid for by the College, and was the property of the College and that after the roof was com, pleted there was an excess of shingles and roofing material in an amount aggregating in value a gum much greater than the amount sued for, which plaintiff retained and now owes.

Defendant prays that demands of plaintiff be rejected and for judgment in reconvention in such sum as the court should find to be due. by the plaintiff to the defendant for shingles and other material belonging to the defendant and taken charge of by the plaintiff.

The, first question to be decided is whether the plaintiff was • guilty of fraud in obtaining the contract sued on, filed in evidence and marked “plaintiff 1” which contract is as follows:

Alexandria, La. 4-21-21.
Mr. C. Cottingham, President,
Louisiana College,
Pineville, Louisiana.
Dear sir:-
I propose to furnish all material and all labor necessary for the completion of the roof (no metal work included) to be applied on the Administration Building for Louisiana College, Pineville, La., using Gray Keasbey & Mattison asbestos slate, No. 16, 8" x 16", applied American method as per plans and specifications, for the sum of five thousand three and 50/100 dollars. Expense of hauling material needed from L. R. & N. Depot in Pineville, La. to be borne by La. College;
Terms: Roofing material net cash 10 days from date of invoice with shipping documents attached; pay roll for labor to be paid weekly, amount not to exceed $3.00 per square for roofing applied; balance of contract price to be paid on the completion of the contract and acceptance by the architect.
Respectfully submitted,
Sam Charrotte, Contr.
C. Cottingham, President La. College..
Accepted May 11, 1921.

And which defendant alleges was procured by fraud. We .have read the evidence carefully but have failed to find any evidence in any way connecting Sam Charrotte, the plaintiff, with fraud in the making or signing of this contract.

In Transcript, page 22, we find this evidence:

Q. The contract which was signed by Charrotte and Cottingham representing the Louisiana College, at whose solicitation was the contract drawn?
A. Mr. Cottingham’s.
(T. Page 23)
Q. Cottingham asked that the contract be drawn?
A. Yes sir.
Q. And by whom wa,s it drawn?
A. I drew it.
Q. And you presented it to Mr. Charrotte?
A. Yes sir. (T. page 15)
Q. The way you drew the contract the fact is, that the College is standing to lose all the shingles that were left there?
A. Yes sir, and if there were not sufficient, to cover the building, if the breakage was great, Sam Charrotte stood a chance to lose whatever amount was necessary to cover the college.
(Trs. page 6)
Q. Did Prof. Cottingham read over the contract?
A. Yes sir.
Q. Did he make any suggestion to you as to any changes?
A. Yes sir, he spoke of the amount in the contract and asked if we should state the number of squares to be furnished or should we let the contract cover it as a whole. I remarked that we could state the number of squares, but frequently there was a portion of the shingles broken in shipment and that if we did and any more shingles were required, the Louisiana College would have to pay the difference, and asked if he wanted to state the number of shingles or just wanted to state the complete roof.
Q. What was his answer?
A. That they wanted the complete roof.

This testimony is the testimony of C. S. Yearger, Architect of the defendant College who represented the college in drawing, the contract and presented same to Sam Charrotte for his signature.

Under this contract there is no doubt but that Sam Charrotte would have had to furnish all of the shingles necessary to complete the contract had the shingles ordered been insufficient to complete same.

It therefore follows that the shingles that were left over after the contract was completed belonged to the plaintiff Sam Charrótte.

It is a poor rule that “will not-work both ways”.

Marbury vs. Colbert, 105 La. 469, 29 South. 871.

As to the fraud defendant would have us believe Yearger guilty of, there is no direct evidence.

He who alleges a fraud must prove it fully. It does not suffice that he introduced evidence that rendered it probable.

Fort vs. Metayer, 10th Martin (O. S.) 436.

Fraud will not be inferred from slight presumptions.

Caldwell vs. Benestict, 8th Martin (N. S.) 454.

Defendant earnestly insists that the College paid for the 200 squares of shingles and other roofing material amounting to $4,243.50 and that the said material technically and legally belonged to the College and that therefore all of the material used on the roof belonged to the College.

The contention we think is not sound for the reason we find from defendant’s answer that the roofing material consisted of 200 squares of shingles together with the necessary ridge roll cost $4,118.50 and 200 squares roofing 'felt cost $125.00 making a total for the entire roofing furnished $4,243.50. This amount was - charged to Sam,Charrotte by the College as shown in one check filed in evidence and marked “Deft. 2" and was used by him in 'paying for all the roofing material bought — Thus .making all of said material belong to him (Charrotte).

Having reached the conclusion that the contract can not be set aside as fraudulent and that the over-run of the roofing material' belonged to plaintiff and he is entitled .to judgment for the balance ($160.00)

sued for on the contract and to the value of 3 squares of shingles which the defendant admits in its answer the College used. The evidence uncontradicted shows that they .were worth $19.20 per square — $57.60, thus making up the amount sued for $217.16.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at defendant’s cost.


text:
    No. 1950
    Second Circuit Appeal
    LOUISIANA RAILWAY AND NAVIGATION COMPANY v. R. C. LAWRENCE
    (Jan. 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 51.
    Plaintiff, who fails to establish his claim from insufficiency of evidence which he may afterwards be able to supply, will be non-suited and not concluded by final judgment.
    Appeal from Parish of Rapides, Hon, Levin L. Hooe, Judge.
    This is a suit to recover alleged undercharges on a shipment of ties.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended, making it one of non-suit.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Gus Voltz, of Alexandria, attorney for defendant, appellee.
   CARVER, J.

Plaintiff, a railroad Company, sues defendant to recover alleged under charges on seven shipments of ties— two on April 25th, 1919, and the rest

since that date, claiming that the rate paid was 2c per hundred, when it should have been 6%c.

The suit was filed April 25th, 1921 and citation served April 26th, 1921.

Defendant filed an exception of no cause of action which was properly overruled and which was not urged in this court. Against the claim as based on the two earliest shipments he pleads the prescription of two years which plea seems not to have been decided by the lower court. No law is cited in support of this plea and we know of none fixing two years on claims of the, kind sued on but in view of the conclusion we have arrived at on the merits we shall leave this question open.

Defendant in his answer pleads as a defense to the suit and alternatively as a reconventional demand, that plaintiff’s agent quoted him a rate of 2c per hundred and that he could have had the ties hauled by team at this rate. But there is no merit in this defence as was frankly admitted by defendant’s counsel in oral argument in this court.

On trial of the case on its merits plaintiff failed to prove its demand by legal evidence.

We cannot find in the record any proof of the amount of freight actually paid.

It is alleged by plaintiff and admitted by defendant that the rate was 2c per hundred but we find no proof or admission of the weight of the ties.

In order to prove the rate which should have been paid, plaintiff offered printed Tariff sheets issued by its. General Freight agent. Defendant’s • counsel objected on various grounds, amongst which were that they were not certified by the Railroad Commission (Now Public Service Commission) and that no approval by that Commission was shown. In effect, though not formally, this objection was sustained by the lower court, which in our opinion was correct.

But the mere failure of plaintiff to prove its demand did not warrant its final rejection. See White & Dart’s Louisiana Digest Yerbo Judgment Sec. 51 where many cases are cited in support of the following syllabus: “Plaintiff who fails to establish his claim' from insufficiency of evidence he may afterwards be able to supply, will be non-suited and not concluded by final judgment.”

Amongst the cases cited are Reynolds vs. Stille, 14 La. Ann. 599; Executors, etc. vs. Raoul, 14 La. Ann. 307; Succession of Hickman, 13 La. Ann. 364.

It is accordingly decreed that the judgment of the lower court be amended by rejecting plaintiff’s demand, not finally but only of non-suit, cost of appeal to be paid by defendant and those of the lower court by plaintiff.


text:
    No. 1961
    Second Circuit Appeal
    GRACE LEWIS v. POLICE JURY, RAPIDES PARISH
    (Jan. 12, 1925, Opinion and Decree.)
    (Feb. 20, 1925, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    '1. Louisiana Digest — Pleading—Par. 62.
    An exception of no cause of action should not be sustained because plaintiff closed case without introducing any evidence to show that the deceased at the time of the accident was working within the scope of his employment. It must be detei’mined by the .averments of plaintiff’s petition.
    2. Louisiana Digest — Pleading—Par. 7.
    It is inconsistent pleading to set up defenses to an action and afterwards plead no cause of action.
    3. Louisiana Digest — Appeal—Par. 562, 564.
    Questions not raised in the lower court cannot be passed on in the Court of Appeal.
    4. Louisiana Digest — Holidays—Par. 2.
    Act No. 6 of 1921 provides that it shall be lawful to take and execute all other legal proceedings on Saturday halfe holidays. The Saturday half-holiday in the city of Alexandria is a local half-holiday and as such does not apply to the District Court for the Parish of Rapides.
    5. Louisiana Digest — Master and Servant— Par. 160 (a).
    Where, in a suit for compensation under the Employers’ Liability Act No. 20 of 1914, the defense is that the de ceased willfully killed himself and there is no evidence to show that at the time of the explosion deceased was willfully trying to injure himself or to commit suicide, or that he failed to use a device or guard against accident provided by the employer, plaintiff is entitled to judgment.
    6. Louisiana Digest — Interest—Par. 22.
    In view of Article 2924 and Article 1838 of the Civil Code, judgments in cases for compensation under the Employers’ Liability Act No. 20 of 1914 should bear 5 per cent interest from the dates that the respective payments are due until paid.
    Appeal from the Parish of Rapides, Hon. Leven L. Hooe, Judge.
    REYNOLDS, J.
    Action by Grace Lewis, mother of McKinley Lewis, deceased, for damages for his death under the Workmen’s Compensation Law of Louisiana.
    Defendant denied liability on the ground that deceased wilfully intended to injure himself or commit suicide — or that he deliberately failed to use safe guards provided for him by the defendant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    Cleveland Dear, of Alexandria, attorney for defendant, appellant.
   In this case the defenant’s son was killed by the explosion of dynamite while deceased was performing services arising out of and incidental to his employment; and under the plain terms of the Workmen’s Compensation law, plaintiff is entitled to recover damages for his death unless the defendant can establish the defense set up by it; that deceased willfully wanted to injure himself, etc.

Under the evidence showing the conditions that existed at the time the dynamite exploded, it was impossible to show just what caused the explosion. There was no one looking at the deceased at the exact time of the explosion. The witness Webster Anderson was one of the last persons who saw him alive and says in answer to the question:

“Q. How long before the explosion was it that you saw him?
A. About two or three minutes before the explosion. I just had turned around to leave him.
Mr. W. E. White, the only other witness who testifies on this point, said: (Trans. P. 18 & 17).
Q. How long, before the explosion that killed him was it that you had been with him?
A. About two or three seconds I guess and I had turned around.
Q. What was he doing when you looked at him?
A. Standing stooping over his box of dynamite on a stump twenty-four inches high.

None of the evidence introduced shows the exact cause of the explosion, but there was an explosion of dynamite, and it killed plaintiff’s son while he was at work in the course of his employment.

There is no evidence to show that at the time of the explosion deceased was . wilfully trying to injure himself or to commit suicide, or that he failed to use a device or guard against accident provided by the employer.

Plaintiff is entitled to judgment.

Counsel for defendant, in his briefs insists that his exception of no cause of action should be passed on. That the judgment should be set aside for the reason it was signed on Saturday a half holiday.

Counsel insists that his exception of no cause of action should have been sustained for the reasons plaintiff closed her case without introducing any evidence to show that the deceased at the time of the accident was working within the scope of his employment, etc.

Be that as it may the exception of no cause of action must be determined by the averments of the plaintiff’s petition. In re. Scarborough, 43 La. Ann. 315, 8 South. 940.

It is inconsistent pleading to set np defenses to an action, and afterwards plead no cause of action. Yarborough vs. Blanks, Mannings Unreported cases 144.

Counsel insists that this court should hold the judgment absolutely null and void and to no effect, that the judgment is an absolute nullity.

If this contention is correct, then this appeal was unnecessary.

This question was not raised in the lower court, and cannot be passed on here.

Act No. 6 of 1921, cited by counsel for defendant does not appear to carry out counsel’s contentions for in its last paragraph it is provided that it should be lawful' to take and execute all other legal proceedings on Saturday half holidays.

The Saturday half holiday in the City of Alexandria is a local half .holiday and as such does not apply to the District Court tor the Parish of Rapides.

State vs. Westmoreland, 117 La. page 958, 42 South. 440.

For the reasons assigned the judgment appealed from is affirmed at defendant’s cost.

ON .APPLICATION FOR REHEARING. •

On this application for rehearing defendant has called our attention to the fact that eight per cent per annum interest is allowed in the judgment appealed from and affirmed herein.

The clause in the judgment providing “that the payments that have already become due bear interest at the rate of eight per cent per annum” is an error and must be corrected. This is an error, however, that we can correct without reopening the case, and we will, accordingly, make this correction.

Defendant insists that no interest is provided: by law and that no interest can be allowed,.

Civil Code, 2924, provides:

“Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit: At five per cent on all sums which are the object of a judicial demand. * * * ”

Civil Code, 1838, provides:

“All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.”

Under these articles of the Code we think the plaintiff is entitled to recover interest at five per cent per annum instead of eight per cent per annum as allowed in the judgment.

It is therefore ordered, adjudged and decreed that our decree heretofore rendered remain in full force and effect, except as to the items of interest and cost of appeal. As to these two items, it is ordered, adjudged and decreed that the plaintiff recover five per cent per annum interest on each payment that has already become due, from the date they became 'due -until paid, and five per cent per annum interest on each payment as it becomes due until paid.

It is further ordered, adjudged and decreed that the plaintiff, appellee, pay all costs of this appeal; all other costs in the case to be paid by defendant, appellant.


text:
    No. 1973
    Second Circuit Appeal
    M. L. DUCOTE v. TEXAS & PACIFIC RAILWAY COMPANY
    (Jan. 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 146, 149.
    Plaintiff, whose fault has made it dangerous for the defendant to comply with his order, will not be allowed to recover damages for defendant’s failure to do a dangerous thing.
    2. Louisiana Digest — Obligations—Par. 176.
    Defendant, sued in damages for a breach of contract, may plead that the loss was caused by plaintiff’s failure to fulfil another contract, on which the first depended for its performance.
    (Code of Practice, Articles 374, 375. Editor’s note.)
    Appeal from the Fourteenth Judicial District Court, Parish of Avoyelles, Hon. S. Allen Bordelon, Judge.
    This is a suit for damages for failure to furnish box cars with which to ship cottonseed.
    : There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Lester Bordelon, of Marksville, attorney for palintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit by M. L. Ducote for $286.00 against the T. & P. Ry. Co., for failure, to furnish to the plaintiff two empty box cars in which to ship cotton seed on Sept. 8, 1920.

Defendant denies liability; 1st — On the ground that its failure to deliver said ears was caused by plaintiff failing to furnish the necessary ties with which to repair plaintiff’s spur-track, in accordance with the agreement' of plaintiff and defendant.

2nd: That plaintiff failed to take reasonable steps to minimize the damages complained of.

Plaintiff’s fair and frank evidence furnishes to the defendant complete defense.

From plaintiff’s evidence from page 7 of Transcript, we quote:

Q. And it was understood that you were to furnish these ties?
A. Yes sir, and I would have furnished them if I could have gotten them.
Transcript Page 6.
Q. Is it a fact that you failed to furnish any cross ties?
A. I placed a set of switch ties there July 5 and notified the company that I could not have those ties made on account of bad weather. Everybody in 1920 knew-how bad the weather was and I could not furnish the ties. I furnished the switch ties on July 5.

From this evidence of plaintiff and other evidence in the record not disputed, it is apparent that plaintiff and defendant entered into an agreement by which the defendant was to keep plaintiff’s spur track in repair, upon plaintiff furnishing the necessary cross ties.

That in July 1920, defendant notified plaintiff to furnish the necessary cross ties to repair his spur track and that' he failed to do so on account of the bad weather.

That on September 7th, defendant spiked down plaintiff’s spur track on account of its dangerous condition..

Under the condition plaintiff is not in position to recover damages from defendant for protecting itself against the dangerous condition of plaintiff’s spur track, caused by plaintiff’s failure to furnish the necessary ties to repair same.

Plaintiff, whose fault has made it dangerous for the defendant to comply with his order will not be allowed to recover damages for defendant’s failure to do a dangerous thing.

Defendant, sued in damages for a breach of contract, may plead -that the loss was caused by plaintiff’s failure to fulfil another contract, on which the first depended for its performance. Langfitt vs. Clinton and R. Co. 2 Rob. 217-222.

Having reached this conclusion under the facts of this case it is unnecessary for us to pass upon defendant’s second defense; that plaintiff failed to take reasonable steps to minimize the damages complained of.

For these reasons, it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and the demands of plaintiff are hereby rejected at his cost in both courts.


text:
    No. 2034
    Second Circuit Appeal
    HOLCOMB & HOKE MFG. CO. v. JAMES THEODORA
    (Jan. 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 3, 4.
    Where a popcorn machine is sold on a supposed lease agreement the courts will interpret the purported lease agreement as a sale, which it in reality is.
    2. Louisiana Digest — Landlord and Tenant —Par. 99; Pleading — Par. 29.
    A provisional seizure is dissolved where the petition does not pray for the issuance of the writ.
    3. Louisiana Digest — Landlord and Tenant Par. 96.
    A provisional seizure is dissolved where there is in reality no lease or rental involved.
    4. Louisiana Digest — Landlord and Tenant Par. 102.
    Defendant in a writ of provisional seizure is not entitled to damages upon its dissolution in the absence of proof of malice.
    5. Louisiana Digest — Sales—Par/ 238, 239.
    Article 2534 of the Civil Code, treating of the redhibitory action and prescription of one year under it, has no application to this case in which the purchaser of property, when sued for the price, uses the redhibitory vices of the thing sold as a defense to further payments.
    6. Louisiana Digest — Tender—Par. 1, 6.
    Where, at the time that the defendant filed answer and instituted what plaintiff ■ terms ■ a ' redhibitory action, the property was not in defendant’s possession, having been seized by the sheriff under a writ gotten out by plaintiff, any other tender than the one made by defendant under the conditions was impossible, nor was . any other tender necessary.
    7.Louisiana Digest — Sales—Par. 218, 219. Where a popcorn machine did not do the
    work it was intended for and the seller’s agents promised to repair it, the fact that the purchaser made further payments does not debar him from claiming the machine unsuitable as a defense to a suit brought by the seller to collect the balance of the price.
    Appeal from the Thirteenth Judicial District Court, Paris of Rapides, Hon. J. A. Williams, Judge.
    This is a provisional seizure to collect alleged rent on a popcorn machine. The defense is that the machine was in reality sold but it is unsuited for the purpose for which it was sold.
    There was judgment for defendant and dissolution of writ with §50.00 damages.
    Plaintiff appealed.
    Judgment affirmed, except as to $50.00 damages reversed.
    White, Holoman & White and Geo. Ginsberg, of Alexandria, attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff alleges that on or about the 9th day of Sept. 1919, he leased to the defendant a pop-corn machine, which lease began, he says on that date, and ended 78 weeks after that date, during which time defendant bound and obligated himself to pay the sum of $16.80 every two weeks as rental, and that there is still a balance of $224.50 due him; that he has made demand on defendant for the payment of the balance due and that defendant has failed to make the payments, and he now .asks that he havte judgment for the balance due. He also alleges that he has a “lessor’s lien and privilege upon the above described pop-corn machine” to secure the balance of the purchase price and that he is entitled to have a writ of provisional seizure issue directing the sheriff to seize and to sell the said machine without appraisement.

An order for a writ of provisional seizure was signed by the Judge on April 20, 1922, and on the same the writ was issued, but whether the writ was ever executed and the property actually seized thereunder does not appear, as there are no returns in the record showing the actual seizure. However that point was not raised in argument or in brief. It seems to have been conceded that the property was actually seized.

On May 3rd, 1922, defendant moved that the writ be dissolved for two reasons, one that plaintiff did not pray for the issuance of the writ, and second that there was no ground for the issuance thereof as plaintiff has no privilege on the property. He asked for damages in the sum of $50.00. This rule was tried on Feb. 15, 1923, the motion sustained, the writ was dissolved and defendant was allowed $50.00 “as damages for the illegal issuance of said writ.”

On February 27, 1923, defendant filed answer setting up that he did not lease the machine from plaintiff, but that he had purchased the same and that while the vendor termed the contract a lease, and while the written contract entered into by the parties purported on its face to be a lease, yet it was in realty, a sale that he had received the machine from plaintiff had paid $150.00 cash and had made 27 bi-weekly payments of $16.80 each.

He admits that he refused to make the additional payments.

He especially alleges that the machine was guaranteed by the plaintiff, vendor, to give satisfaction, that it was designed and guaranteed to pop , pop-corn and parch peanuts. That, the machine failed to do so, that is was not satisfactory; that it could not be made to operate successfully on account of some defect unknown to him, and he prays that plaintiff’s demands be rejected, and that he have judgment in re-convention for the sum of . $603.60 the amount which he hád paid on the machine.

Plaintiff, defendant in reconvention has filed in this court, an exception of no right of action on the ground that defendant, plaintiff in reconvention, “did not tender back the pop-corn machine before instituting redhibitory action”, and in the alternative, if defendant, plaintiff in reconvention, has a right of action, it is barred by the prescription of one year.

On the issuance and dissolution of the writ of provisional seizure. This writ should not have issued and was properly dissolved by the District Court. But we. think the' court erred in granting $50.00 damages for the illegal issuance of the writ.

The motion to dissolve the writ does not set out that defendant actually suffered any damage on account of the writ. It reeites that the writ was illegally issued and asks that plaintiff be condemned “to pay the defendant the sum of fifty ($50.00) dollars as damages for the illegal issuance of the writ”.

Under the law, defendant is not entitled to damages upon the dissolution of a writ of this kind in the absence of proof of malice.

See Fox vs. McKee, 31 La. Ann. 67.

Cretin vs. Levy, 37 La. Ann. 183.

John Adams vs. Sheperd, 52 La. Ann. 1809, 28 South. 319.

There was no actual damage supiainedi The machine was not in use at the time it was seized, in fact the testimony shows that it could not he used. No proof was made that the mere seizure of it damaged defendant’s business. It may be said that the attorney’s fee in having the writ dissolved would be $50.00, but there is no proof that the attorney for the defendant charged that sum in addition to his services in defending the suit on its merits.

We think it was error to allow any sum as damages upon the dissolution of the writ.

ON THE PLEA OE PRESCRIPTION

Plaintiff interposes in this court, the plea of prescription of one year to the defendant’s reconventional demand which plaintiff says can be viewed only as- a redhibitory action. As' both parties seem to treat it as such, we shall so consider it and pass upon the plea of prescription.

Art. 2534 of the Civil Code provides: “The redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale”. This limitation' does not apply where the seller had knowledge of the vices of thing sold and failed to declare them to the purchaser, nor where the seller, not being domiciled in this state, shall have absented himself before the expiration of the year following the date of the sale. But the question to be decided does not hinge upon either of the noted exceptions, but upon the well recognized principle of law that a person may under certain conditions, use as a shield of defense that which he could not use as a weapon of attack. There can be no question but that a purchaser who institutes the redhibitory action must do so within one year from the date of the sale, or at least from the date on which the defects of the-thing become known to him. But where the purchaser has been sued for the balance of the purchase price and resists payment on the ground that there was in the thing purchased some redhibitory vice, he may set up such vice or defect even though moré than a year shall have elapsed since the date of the sale. The case of Thompson vs. W. H. Milburn, 1 Martin N. S. P. 468, is directly in point. The court said, “The article of our códe which directs that the action of redhibition must be brought in one year at farthest from the date of sale, can only receive an application in cases where the vendee is plaintiff and brings action. It leaves untouched the right to offer the want of consideration as a defense against paying the price agreed on.” And in the case of Lastropes vs. Rocquet, 23 La. Ann. 68, the syllabus reads as follows: “The rule quae temporalia sunt ad agendum, perpetua -sunt ad excipiendum may be used as a defense, but it cannqt be used as a weapon of attack. Therefore a purchaser of property, when sued for the price, may urge in defense the redhibitory defects the diminution in quantity, and the like, although his right to recover by direct action for such course be prescribed.”

And the opinion is in accord with the syllabus.

See Bushnell vs. Brown Heirs, 4 N. S., p. 499.

Otis vs. Texas Co. 153 La. 400, 96 South. 1.

Edwards & Kurz vs. Plaquemine Ice & Cold Storage Co., 46 La. Ann. 360, 15 South. 61.

The case at bar is not where the purchaser comes into court as plaintiff and asks that the sale be set aside on account of the defect thing sold, but he is resisting plaintiff claim for further payment on the price of the thing and sets up such defects as a defense; and he further asks for the return of that which he has already paid on the ground that the seller warranted the article sold which proved defective.

The plea of prescription is not good and' is overruled.

ON EXCEPTION OF NO RIGHT OF ACTION.

This exception was also filed in this court along with the.plea of prescription.

The exception is founded upon the proposition that defendant failed to tender to plaintiff, the pop-corn machine before instituting the redhibitory action as it is termed. Plaintiff in brief says “Under the above, defendant’s reconventional demand must fail as no tender was made until answer was filed”, and he cites the following cases:

Barret vs. Ballard, 19 La. 281.

Fazenda vs. Hogan, 9 Rob. 306.

Bach vs. Barret, 2 La. Ann. 955.

In each of the cited cases, the vendee brought suit to set aside the sale and to recover the amount paid on account of redhibitory vices found in the thing purchased. The court in each case held that he should have tendered the property before bringing the suit. The case at bar is not a parallel case. Defendant has not brought a redhibitory action to annul the sale, but is resisting the demands of plaintiff that he make further payments and asking a refund of the amount he has paid.

Besides, defendant has made a tender of the machine. He made the only kind of tender he could have made under the circumstances; he tendered the property in his answer. That, we think is sufficient, if indeed any tender at all be necessary in a case of, this kind.

Furthermore, at the time defendant filed answer and instituted what plaintiff terms a redhibitory action, the property was not in defendant’s possession, havbeen seized by the sheriff under a writ gotten out by plaintiff. Any other tender than the one made by defendant under the conditions was impossible.

The exception is therefore overruled.

ON THE MERITS.

Defendant purchased the machine under the following written guarantee. “We guarantee the Butter-Kist Pop-Corn machine to perform perfectly the work for which it is designed and sold, and we will gladly send new parts to replace any part or parts of it that prove defective through faulty workmanship of material”. We find the following in the printed circular gotten out by plaintiff.

“The capacity of the/ Butter-Kist machine may be varied from fifteen to about one hundred twenty, 5 cent bags of popped corn per hour.”.

Defendant testified' on the trial that the salesman for plaintiff guaranteed the machine to give perfect satisfaction.

When the machine arrived in Alexandria, it was set up by defendant with the help of Mr. Mandot, an electrician connected with the Evans Bros. Electric Company. They could not make it work. They then sent for the city electrician, Mr. Franks. He testified that He made an inspection and found that the machine, was properly connected, and that the city furnished an alternating current of one hundred ten to one hundred sixteen volts, sixty cycles. Mr. John E. Britterback an expert witness for plaintiff testified as follows:

“That is, this machine will operate satisfactorily on a voltage not varying more than 5% over or under the voltage, specified, which is a hundred ten volts alternating current, sixty cycles, in this instance. That is the machine will operate properly on a minimum of about a hundred and four volts, alternating current, sixty cycles, and it will operate properly upon a maximum of one hundred sixteen volts, alternating current, sixty clyces.” So that the testimony shows that the machine was properly set up, under proper conditions.

But it would not, it did not do the work it Was intended to do. that is pop pop-corn and parch peanuts.

The proof , is overwhelming on that point. For some reason his plates' would not heat. Plaintiff was notified of this fact. Representatives of plaintiff, some three or four, inspected the machine hut could not make it work. They promised, so defendant says, to have the machine fixed, but nothing was done. Just why it would not work no one seems to know, but the facts are that it would not.

Plaintiff’s expert witness, Mr. Brittenbach says that he gave the machine a thorough test before it was shipped and that it was in perfect condition. Whether it was or not, the facts are that when it reached Alexandria, it would not do the work it was guaranteed to do, and under plaintiff’s guarantee, it should have found the trouble and remedied it after being notified as •it • was, that the machine was not satisfactory.

Defendant made a number of payments on the machine after he received it and even after it proved unsatisfactory. Plaintiff says defendant’s conduct in making the payments 'lulled it into “non action” for three years.'

The proof shows that plaintiff was notified of the defects in the machine and promised to remedy them.

Defendant thought plaintiff would finally do that and for that reason he made his payments.

We are satisfied that the machine was utterly unfit for the use for which it was purchased, and that the District Judge made no error in rejecting plaintiff’s demands, and' awarding judgment for defendant on his reconventional demand for the amount sued for.

- For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be reversed in so far as it allowed defendant damages in the sum of $50.00 for the erroneous issuance of the writ of provisional seizure and in all other respects it is affirmed, all costs to be paid by the plaintiff in suit.


text:
    No. 2075
    Second Circuit Appeal
    JAMES C. BROWN v. JAMES ANDREWS, ET AL.
    (January 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Surveyors and Surveys — Par. 10.
    Where in an action of boundary an agreement between the plaintiff’s authors of title and the defendant’s authors of title is proven, in the absence of proof to the contrary it must be presumed to have been fixed according to this agreement, if fixed at all.
    2. Louisiana Digest — Surveyors and Surveys — Par. 16.
    'Where in an action of boundary the evidence does not show an actual fixing of boundary by judgment of court, agreement of parties or even by survey ex parte or otherwise, the proof is not sufficient to establish a claim that any line now shown on the ground has been recognized so as to render unnecessary a judicial fixing.
    3. Louisiana Digest — Surveyors and Surveys — Par. 17.
    Under Civil Code Article 825 an action of boundary pure and simple is not open to a plea of prescription. The action may be repelled by showing that the boundary line between the two properties has been settled by judicial decree or biy a survey made by a surveyor in conformity with the requirements of the Civil Code.
    4. Louisiana Digest — Surveyors and Surveys — Par. 11, 24.'
    •In this action of boundary there is not sufficient proof to show acquiescence in the ditch or the line of oak trees or the Brown fence as a boundary.
    5. Louisiana Digest — Surveyors and Surveys — Par. 22.
    Where the plaintiff in a boundary .suit fails to show that the defendants have the land of which he is short there must b.e judgment for the defendants: but plaintiff has the right to have the boundary fixed according to law.
    6. Louisiana Digest — Surveyors and Surveys — Par. 18.
    In an action of boundary in the absence of sufficient proof to show who gave a lane it is fair to presume that each of the adjoining proprietors gave half.
    7. Louisiana Digest — Surveyors and Surveys — Par. 3, 18.
    In an action of boundary no good reason being shown to suppose an offset from a point back but on the contrary the agreement between the authors of the respective litigants stipulating for a straight line all the way, the line beyond the lane should be an extension of the center line thereof.
    Appeal from the Thirteenth District court, Parish of Rapides,'Hon. John A. Williams, Judge.
    This is a suit to fix the boundary between two adjoining estates.
    The defendants filed an exception of no cause of action which was overruled. Then the defendants' answered setting up the defense that no necessity existed for a judicial fixing and subsequently they filed pleas of prescription and estoppel.
    There was judgment fixing the boundary line overruling the plea of prescription and of estoppel, each side to pay half of the cost.
    Defendant appealed, judgment affirmed, the cost of appeal to be paid by the appellant.
    Hawthorne & Stafford, of Alexandria, attorneys for plaintiff, appellee.
    T. P. Hunter, of Alexandria, attorney for defendant, appellant.
   CARVER, J.

The plaintiff alleges that

he and defendants own adjoining plantations fronting on Bayou Rapides; that as far back as defendants’ clearing extends there is a lane, the center of which has been for more than fifty years, the recognized boundary, but that if the boundary beyond the end of the lane has ever been fixed the marks have been effaced; that he has less land than his title calls fbr and the defendants more than theirs call for; and that a boundary should be established beyond the end of the land running from there eastward along the defendants’ back fence such a distance as that a line then run from there North to the back line of the properties will give him his full quantity.

He prays that the line so indicated be ordered run and established and further prays for general relief.

Defendants filed an exception of no cause of action, which we think was properly overruled. We agree with their counsel that the petition showed no legal reason for fixing the boundary where the plaintiff asked. The mere fact that he had too little land and the defendants too much did not entitle him to make up his deficiency out of their surplus. But his allegations that the boundary, if ever established, had been effaced, entitled him under his prayer for general relief to judgment fixing it wherever the proof might show that it should be fixed. To this extent he did show a cause of action — the right to fix a boundary never fixed or re-establish one fixed but effaced is absolute.

C. C. 832 provided:

“When two estates or lands contiguous, in cities or in the country, have never been separated, or have never had their boundaries determined, or if the bounds, which have been formerly fixed, aré no longer to be seen, each of the owners of the contiguous estates has a right to compel the other to fix the limits of their respective properties.”

The claim of defendants that no necessity existed for a- judicial fixing because a recognized boundary not effaced remained on the ground was, if true, available as a defense to the merits but not as an exception of no cause of action.

The defendants answered setting up the defense just mentioned and subsequently they filed pleas of prescription and estoppel.

The District Judge after trial fixed the center of the lane and an extension thereof to the back line as a true boundary line, virtually overruling the plea of prescription and estopped. He apportioned the cost half to each side.

Defendants appealed and by an answer to the appeal plaintiff asked that the judgment be amended so as to give him the relief originally asked for.

James Andrews, one of the defendants having died pending the suit, the heirs have been made parties.

Both sides virtually claim that the line was once fixed — defendants that it was fixed the entire distance and plaintiff that it was fixed to 'the end of the lane and perhaps beyond. The main dispute is as to where it was fixed.

(1)

We think it clear under the evidence, that the boundary beyond the end of the lane where plaintiff claimed in his petition it should be or the Faxley Road which he testified he “understood” it should be. From the front to the end of the lane it must be under the pleadings of both sides, either the center of the lane as claimed by plaintiff or the Brown fence on the West side of the lane as claimed by the defendants. Beyond the end of the lane it must be an extension of whichever of these lines is correct — one because in the petition made in 1868 between the heirs of .1. F. Brent (plaintiffs’ authors) and James R. Andrews and his children (defendants’ authors) it was agreed that a straight line from the rear to front should be the division line. In the absence of proof to the contrary it must be presumed to have been fixed according to this agreement, if fixed at all.

(2)

We do not think the proof sufficient to establish defendants claim that any line now shown on the ground has been so recognized as to render unnecessary a judicial fixing; no proof at all is introduced by either side to show an actual fixing by judgment of court, agreement of parties or even by survey exparte or otherwise. The evidence consists solely of the understanding of the witnesses based on statements of former owners of the respective properties. And such statements seem not to have been to the effect that any line had been fixed in any binding way, but merely that such a line had been recognized or claimed.

Brown and Crinkshank say they understood the line was the center of the lane for the front part and the Farley road (some distance east of an extension of that line) for the ' back part. Tom Taylor said the Brown fence was considered the line as far as it went and a ditch the line beyond that. Tom Andrews says the Brown fence and then a line of oak trees along the ditch.

This ditch extends into plaintiff’s field and is only about 2% to 8 feet from the Brown fence.

It is not disputed that Brown’s predecessors in title dug the ditch and Brown claims that it was dug to drain the Brown land.

(3)

We do think defendants’ plea of prescription good. In our opinon the case of Williams vs. Bernestein, 51 La. Ann. 115, is decisive of this question.

The syllabus reads:

“(An action of boundary, pure and simple is not open to a plea of prescription (C. C. 825). The action may be repelled by showing that the boundary line between the_ two properties has been settled by judicial decree or by a survey made by a surveyor in conformity with the requirements of the Civil Code.
“A line, however, even when established between the parties by such a survey yelds to a demand for the ratification of the same under an allegation of error unless the party resisting the ratification should allege and show an' adverse possession of ten years under the erroneous line.”

We do not think this suit one for ratification of one erroneously fixed but one for re-establishment of a boundary effaced.

(4)

Neither do we think defendants’ plea of estoppel good. It is based on the claim that “the plaintiff herein admits in his pleadings and has shown in the testimony that the parties herein have been in possession and have abided by the line or has been aequiesed in by both parties for more than forty years”.

If this plea is meant merely as an estoppel against plaintiff’s claim of the Parley road as a boundary it is not necessary to consider it because for other reasons we decide against that claim.

We think the proof falls short of showing acquiescence in the ditch or the line of oak trees or the Brown fence as a boundary.

(5)

Plaintiff’s claim to recover for his alleged shortage must fail for several reasons. If he is short it may be because some of his other three neighbors has some of his land. He does not show that defendants have it. Besides his suit is pitched on a theory that a boundary was established but having become effaced must be re-establishéd. He does .not claim the boundary so established was erroneous and ask ratification. If he had the plea of ten years’ prescription would be good against such a demand.

(6)

The above questions being determined it' remains only to decide which is the correct line between (1) Brown’s fence and then the- ditch or row of trees as claimed by defendants or (2) the center of the lane and then an extension thereof as decided by the lower court and alternatively claimed by plaintiff.

It is not claimed by defendants that the ditch inside of Brown’s held is the proper line and no sufficient reason is suggested why it should be regarded as the line beyond that. In fact the defendants’ witnesses testified that the row of trees and not the ditch was the line according to their understanding. Nor is there sufficien proof that the Brown fence is the correct line; It was so understood by defendants’ witnesses, but not by those of plaintiff.

In the absence of sufficient proof to show who gave a lane it is fair to presume that each of the adjoining proprietors gave half.

Considering therefore that the proof is not sufficient to show that Andrews gave all the lane (such proof being merely the declaration of defendants’ predecessor in title) we think the District Judge was correct in adopting the center of the lane as the boundary as far back as it • extends.

No good reason being shown to suppose an offset from' that point back but on the contrary the agreement between the authors of the respective litigants stipulating for a straight line all the way, we think the District Judge also correct in deciding that the line beyond the lane should be an extension of the center line thereof.

The judgment of the lower court is therefore affirmed. The cost of appeal to be paid by the appellant.