author: BELL, J.

text:
    No. 10,340
    Orleans
    GEDDES & MOSS UNDERTAKING AND EMBALMING CO., INC., v. SIMKINS
    (March 1, 1926, Opinion and Decree)
    (March 15, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 8; Evidence — Par. 42.
    Failure of defendant in a damage suit to produce as a witness the driver of the truck which, backing out of a building, collides with an automobile passing on a city street, raises the presumption that the evidence of such a witness would be against the defendant.
    2. Louisiana Digest — Appeal—Par. 625.
    Findings of fact by a trial judge will be approved on appeal unless plainly erroneous.
    Appeal from the First City Court, Division “A”. Hon. William Alexander Bahns, Judge.
    Action by Geddes & Moss Undertaking and Embalming Company, Inc., against Leo Simkins for damages.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eraste Vidrine, of New Orleans, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   OPINION

BELL, J.

This is a damage suit resulting from a collision of defendant’s truck with plaintiff’s automobile. The accident occurred at noon on Erato street, between Dryades and Baronne streets, in the city of New Orleans.

Plaintiff alleges that defendant’s driver, negligently and without warning of any kind, suddenly backed a truck out of the building belonging to the Harris Ice Cream Company, and thus droye the truck into Erato street, on the upper side of which plaintiff’s automobile was traveling in the direction of the river, from Dryades street toward Baronne street.

The damages to plaintiff’s car amounted to $114.28, as shown by receipted bill for repairs. There was judgment for this sum and defendant has appealed.

Defendant, answering the petition, avers that his truck had backed into Erato street and was about to go forward, When suddenly struck in the right rear by plaintiff’s automobile, which skidded on the wet street, thus causing damage to both cars. He further avers that the driver of the truck blew his horn and carefully looked in both directions before backing, and that he saw the street was clear. Defendant’s driver, who, above all other witnesses, should have been able to substantiate the above averments, was not called as a witness nor was his absence in any way accounted for. There is no reconventional demand for damages.

Plaintiff’s driver testified that he has been a chauffeur for thirteen years, and that he was driving twelve miles an hour in about the middle of Erato street, upon which there is a single car track, and that he had just passed Dryades street, going towards the river, when defendant’s truck started backing from inside of the building into Erato street with such force that two men on the sidewalk shouted; that witness blew his horn and swerved to his left to try and avoid collision with the truck, but that there was no chance at all; that the front wheels of the truck were on the sidewalk, and its rear wheels on the upper rail of the car track nearest the building when plaintiff’s automobile was struck. The fact that plaintiff’s car was damaged on the right rear side indicates that the truck backed into the automobile and struck the latter vehicle after it had partially passed the truck.

One of defendant’s witnesses confirms plaintiff’s driver in the statement that the driver did everything possible to avoid the accident. When asked by the court what the plaintiff’s driver did, if anything, to avoid the collision, this witness answered: “To avoid a head-on collision he swerved his wheels hard left and jammed down the brakes.” On the other hand, this witness accounts for the accident by testifying that plaintiff’s driver was not looking ahead of him but was trying to flirt with two girls who were walking , on the lower side of Erato street. Plaintiff’s driver denies that he saw any girls on the lower sidewalk.

Another witness for defendant makes similar account for the accident. But we find it difficult to believe that these witnesses could have been looking toward the lower side of Erato street so as to see the girls — if any they were — -for each of these witnesses state they were looking at plaintiff’s car before and up to the time of the collision. One of them swears that he was standing on the upper side of Erato street and on the river side of the truck, as it backed out, and that he, with a friend whose name he could not remember, were both facing Dryades street, that is, towards the direction from which plaintiff’s car was coming. The other witness for defendant' testifies that he was in the middle of Erato street, standing right behind the truck and directing its driver how to back out of the building. If this statement be true, he was bound to have had his back toward persons or objects on the lower side of Erato street. The same witness finally states that plaintiff’s driver was looking backward rather than forward or across Erato street. These and other inconsistent statements, made by both of defendant’s witnesses, cause us to agree with the trial judge who stated, in his written reasons for judgment, that little weight could be given to such testimony.

The evidence establishes conclusively I that defendant’s * truck was not operated with that degree of care and precaution which should be observed when a motor vehicle is backing into or against traffic on a public- thoroughfare. All witnesses agree that at the moment of the collision I the rear end of defendant’s truck was over-1 hanging the upper rail of the car track.! There is a conflict of testimony as to | whether the truck had come to a stop at I this point, just before the impact of thel vehicles. We conclude that it was in motion when it struck the automobile, for the reason that the latter vehicle would have collided with the truck if the truck had been standing still on the car track. The resulting damage as to the automobile, under such conditions, would have been, as we have already noted, to the front of the machine, rather than to its rear right side. If the street was wet, as defendant avers, and as he has attempted to prove, this fact required additional care on the part of the truck driver while backing into the street.

All the circumstances of this case call for some definite explanation on the part of the operator of the truck, especially when the evidence offered by defendant is strongly at variance with the averments set forth in his answer. Huddy, 7 Ed., page 300, Note 15; 140 N. Y. Supp. 379; Healy, Inc., vs. Burglass, 1 La. App. 741; 10 R. C. L., pp. 884, 902.

“The burden of proof lies with the party who is most cognizant with the facts necessary to decide the issue.” Underwood Typewriter Co. vs. Vatter, 14 Ct. of App. 410; Bank vs. Levy, 106 La. 586, 31 South. 164.
“Where there is a sharp conflict in the evidence as to the manner in which an automobile collision occurred, the testimony of witnesses who are corroborated by physical facts surrounding the accident will prevail.” Fetter vs. Torre, 1 La. App. 766.

In Foster vs. New Orleans Public Service, et al., 3 La. App. —, 8 Ad. Rpts. 520, this court has but recently held liable the owner of a motor truck whose driver backed a truck into the street and across a car track. We refused in that case, as we do now, to apply the doctrine of last clear chance. Draiss vs. Payne, 158 La. 652, 104 South. 487.

The judgment appealed from is correct and should be affirmed.


source: Caselaw Access Project

author: CLAIBORNE, - J.

license: Public Domain

text:
    No. 9052
    Orleans
    HOFFMAN v. SOUTHERN RAILROAD COMPANY, INC.
    (February 15, 1926, Opinion and Decree)
    (March 15, 1926, Rehearing Refused)
    (May 4, 1926, Writs of Certiorari and Review denied by the Supreme Court)

      (Syllabus by the Court.)

    1. Louisiana Digest — Railroads—Par. 54, 74; Negligence — Par. 22, 23.
    Whether it is negligence for any one to cross between two cars barring him from recovery for injury received is a question of fact and law depending upon time, place, and surrounding conditions.
    Appeal from the Civil District Court for the Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    Action by George Hoffman against Southern Railroad Company, Inc. An exception no cause of action was sustained and plaintiff appealed.
    Judgment reversed and case remanded for trial according to law.
    A. G. Williams and I. Williams, of New Orleans, attorneys for plaintiff, appellant.
    Monroe and Lemann, W. J. Suthon, of New Orleans, attorneys for defendant, appellee.
   OPINION

CLAIBORNE, - J.

Plaintiff attempted to pass betwen two coupled cars and was injured. Hence this suit. The defendant filed an exception of no cause of action which was sustained and plaintiff’s suit dismissed. He has appealed.

The plaintiff’s' allegations are as follows:

II. “That on or about the 8th day ' of January, 1921, your petitioner was employed along the river front between Marigny and Press Streets, in the City of New Orleans, and that in order to get to and from his work it was necessary that he cross the tracks of the said corporation and their connecting lines at the head of Spain Street and the river front.
III. “That contrary to law and the dictates of ordinary prudence the said defendant corporations, together with other railroad companies using the tracks in that vicinity were accustomed to park cars along said tracks, thus blocking the street crossing leading to and from the wharves situated along* the banks of the Mississippi River.
IV.“That under -circumstances it became necessary for pedestrians who desired to leave the said wharves to pass between the railroad cars so parked and that the only, other method by which passing between such ears could be avoided would be by making a detour either up or down the river front of five or six blocks in either direction, thus making it necessary for such individual to traverse a distance of ten or twelve blocks to get to a point which ordinarily, if he could have travelled in a straight line, would have meant over only a distance of about 40 feet.
V. “That at about 1:00 p. m., on January 8, 1921, your petitioner was returning from his lunch at home and in order to get to his work out on the levee front attempted to pass between two box cars, which were coupled together and formed part of a long line of cars extending up and down the river front for a distance of many blocks; and that just when he was in the act of crossing between these cars the said line or train of cars was backed into suddenly and violently struck by a locomotive belonging to, in charge of, and under the. management of the servants and agents of the said defendant corporations.
VI. “That as a result thereof your petitioner was thrown off his balance and his left foot fell between the couplings of the cars in question and was crushed and injured as hereinafter more fully set forth.
VII. “That before crossing between the cars your petitioner ■ exercised all due care and precaution to ascertain that the way was clear and safe; that there were no switchmen or flagmen at or near the point in question and no switchmen or flagmen visible either up or down the track on which said train of cars stood. That there was no whistle blown, no bell rung, and no warning of any kind given before the engine or locomotive kicked the said cars in the manner described and it was only after being dragged out on the other side of the track that your petitioner discovered that there were several switchmen and flagmen and other employees of the said defendant corporations situated along different points from which they could not be seen by any one when on the other side of the track.
VIII. “That it is the invariable custom and practice of railroad companies and their agents in the handling of trains along the river front that switchmen and flagmen and other employees be stationed at different parts of the road along which trains are to be laid up or cars switched, and that these employees are invariably or collectively to command a full view of both sides of the track from one end of the train to another.”

The plaintiff concludes by alleging that his left foot was crushed between the coupling of the said car, and that he suffered great pain, and was laid up for nine months and is crippled for the remainder of his life. He claims $10,000 damages.

The defendants excepted that the above petition disclosed no “cause or right of action.” The exceptions are based upon the theory that the plaintiff was guilty of contributory negligence.

The exceptions were maintained and the suit dismissed.

The plaintiff has appealed.

The defendant’s argument amounts to the following syllogism:

It is negligence per se, under any and all conditions and circumstances, for any one to cross between two cars coupled together, and any one so doing is guilty of contributory negligence barring him from recovery; plaintiff did so, ergo he cannot recover”. Defendants’ major premise is too general and sweeping; we cannot agree to it.

We are of the opinion that the correct doctrine is that when one who crosses between two cars coupled together in such a place and under such conditions and circumstances as would lead a prudent man to forsee or anticipate danger is alone guilty of contributory negligence.

Defendants quote many cases in support of their proposition. But none of them was dismissed on an exception of no cause of action. Every one was tried upon the merits, and the facts of each case with the place, time and surrounding conditions of the accident were brought out, showing negligence on the part of the plaintiff dehors the, mere act of crossing between the two cars-

In the Platt case, Platt vs. Vicksburg, S. & P. R. R. Co., 134 La. 444, 64 South. 282, the two cars were a part of a freight train, with locomotive attached, at a regular station waiting for the passing of a passenger train.

To the same effect is • Reno vs. Yazoo & M. V. R. Co., 138 La. 76, 70 South. 43. The syllabus is that one who attempts to pass between the coupled cars of a freight train attached to a locomotive with steam up moving back and forth, to plaintiff’s knowledge, is guilty of contributory negligence. In that case the court said on page 80:

“The decisions cited (by the plaintiff) rest upon the facts and circumstances of each case, as for example, the length of time the train had been standing still before the pedestrian attempted to pass between the cars, whether the engine was coupled to the cars when the pedestrian went between them, etc.” Also Bollinger vs. Texas & P. Ry. Co., 47 La. Ann. 721, 17 South. 253.

For the same reasons stated in the Louisiana cases above quoted have the courts in other states, quoted by defendants, decided in their favor. In summing up the jurisprudence upon this point Elliott on Railroads, cited by defendants, says on S. 1565:

“But where no space is left between the cars, and an engine is' attached to them which is liable to move them at any moment, one who attempts to pass under or between them may be declared guilty of contributory negligence as matter of law.” See also Thompson in Corporations S. 2991.

3 Am. and Eng. Enc. Law, p. 764, C. C.:

"To pass between tjie cars of a train which one knows, or ought to know, is liable to move at any moment is an act of gross negligence, etc.”

There is no allegation in plaintiff’s petition that the cars formed part of a train nor that they were about to be moved, or that a locomotive was attached to them. On the contrary the allegation is that the cars were parked there, meaning to remain there for some time.

In the case of Brown vs. Rrd., 8 R. 45, the Supreme Court awarded damages to a plaintiff who had crossed the tracks of the defendant company at night knowing that the locomotive did not run after dark, and was injured by cars left standing and put in motion by a strong wind.

We conclude from these authorities and from reason that it is a question of fact whether the plaintiff was guilty of negligence in passing between two cars. We can conceive of cases where it would not be negligence to cross between the cars.

The defendant also invokes the principle that where there are two roads, “one absolutely free from risk of any kind; the other full of danger” and the plaintiff chooses the latter, he must assume the risks of it. Johnson vs. Canal & Claiborne R. R. Co., 27 La. Ann. 53; Settoon vs. T. & P. Ry. Co., 48 La. Ann. 807, 19 South. 759; Duvernet vs. Morgan’s Louisiana & T. R. R. & S. S. Co., 49 La. Ann. 484, 21 South. 644; 5 La. Dig., 522 S. 23 Wharton on Negligence S. 361.

To sustain this principle would assume that the road selected by the plaintiff was dangerous, which is the very question at issue.

' It is therefore ordered that the judgment herein be reversed and set aside; that the exception of no right or cause of action be overruled, and that this case be remanded to the district court for further procedings according to law; the defendants to pay the costs of appeal, and the costs of the district court to await the final determination of the case.


text:
    No. 9016
    Orleans
    LYONS MILLING COMPANY v. CUSIMANO
    (November 16, 1925, Opinion and Decree)
    (December 14, 1925, Rehearing Refused)
    (May 4, 1926, Decree by the Supreme Court. Reversed.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 58.
    In a contract of sale, the term “F.O.B.” used in connection with the point of shipment simply means that the transportation charges are to be paid by the buyer from that point. Such a term can in no manner be construed as a guarantee that the thing sold is to be milled or manufactured at that point
    2. Louisiana Digest — Evidence—Par. 58, 60. *
    The burden of proof is upon the buyer to establish the defects of which he complains. in the absence of such proof he must fail.
    Appeal from the Civil District Court, Parish of Orleans, Division “C”, Hon. E. K. Skinner, Judge.
    Action by Lyons Milling Company against J. Cusimano.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Hall, Monroe &. Lemann and Nicholas Callan, of New Orleans, attorneys for plaintiff, appellant.
    U. Marinoni, Jr., of New Orleans, attorney for defendant, appellee.
   BELL, J.

This is a suit for damages ex contractu. The claim is for $460.56, representing the loss in the market value on a carload of “Telegram” flour, sold to defendant through plaintiff’s agent, J. S. Waterman & Company, of New Orleans. The contract, in confirmation form, is dated “Lyons, Kansas, August 4, 1920”, and is addressed by the plaintiff to defendant, in New Orleans, and reads, partly, as follows:

“We confirm sale to you by wire from J. S. Waterman & Company and have entered order for shipment of 310 barrels Telegram flour @ $11.10 basis 98-lb. Cottons per barrel F.O.B. Lyons, freight allowed, basis rate effective above date.
“Terms arrival draft.
“Time of shipment — Immediate.
sfc sjc %
“It is understood that there are no conditions, representations or warranties, verbal or otherwise, and there shall be no assignment or cancellation of this contract, except as herein stated, and no agent or représentative has authority to modify the printed terms of this contract.”

The petition sets up the contract and alleges that upon arrival of the flour at New Orleans defendant refused, without lawful cause or justification, to accept the same, thus compelling plaintiff to sell the flour on the open market, with resulting damages in the amount claimed.

The defendant answers by admitting the contract, and his purchase of the brand described. Denying that he breached the' contract, he avers that the flour was not up to grade or suitable to his particular use in the manufacture of macaroni; that the shipment was not in accordance with the terms of the written contract, which called for flour to be milled at plaintiff’s mill situated at' Lyons, Kansas, whereas the flour was shipped, as shown by the waybill, from plaintiff’s mill at Hudson, Kansas, a mill producing a different and inferior grade of flour, wholly unsuitable to defendant’s purposes; that in this respect plaintiff violated the contract, and therefore defendant was justified in rejecting the flour. It is further alleged in the answer that after defendant had discovered, upon arrival of the flour, that it had not been shipped from the Lyons mill, plaintiff was immediately notified that if it would ship defendant a car of flour from Lyons up to the grade of the “Telegram” brand, defendant would accept the same, irrespective of the market. Defendant flatly denies that he violated the contract in any manner whatsoever.

There was judgment for defendant rejecting plaintiff’s claim upon the following written reasons assigned by the trial court:

“Defendant purchased of plaintiff’s agent 310 barrels of flour known as Telegram flour, from a mill of plaintiff, shipped from Lyons, Kansas. The defendant had used this kind of flour so shipped and found it satisfactory for the manufacturing of Italian paste. The 310 barrels arrived here shipped from Hudson, Kansas, and branded Telegram Flour. Defendant declined to receive the shipment not knowing the quality of the flour made in Hudson, though he was willing to try a sample to see if it w"as suitable for Italian pastes. This was refused and the flour sold; causing the loss complained of. This suit is for that amount. I do not think defendant liable. He did what was proper when the flour arrived and his proffer was rejected. It subsequently developed that the flour shipped was inferior quality and unsuited to defendant’s purpose.”

The judge a quo seems to have predicated his judgment firstly upon a conclusion of law that defendant’s offer to accept another shipment from Lyons instead of that from Hudson, Kansas, relieved him of all liability, if any there was, under the contract; secondly, upon a question of fact, that the flour shipped, that is, the “Telegram” brand, was subsequently shown to be of inferior quality and unsuited to defendant’s purpose. Our appreciation of the law and the facts presented in this case leads us to a contrary opinion. There is no proof whatever in the record before us which shows that the “Telegram” flour involved in the contract sued upon was ever tested by defendant or anyone for him, or that it was found through any other source or method of investigation to be of an inferior grade than that bargained for. On the contrary, it appears that, after deferfllant had rejected the shipment, he made two distinct efforts to obtain from plaintiff permission to inspect and sample the flour. No such permission, however, was granted. As a proposition of law, we find that the plaintiff was, under the terms of the contract, entirely within its legal rights in withholding such permission. No such issue as to the right of inspection was made by the pleadings, and hence no evidence bearing on any attempt to inspect the shipment should have been admitted. The consignment was made to defendant upon the plain and customary provisions, “Terms arrival draft”. These words could have meant nothing else than that delivery by the carrier to the consignee of the shipment, or any part of it, could not be made for purpose of inspection or otherwise, until payment of the draft attached to the bill of lading. In the absence of specific agreement granting a right of inspection prior to acceptance of the shipment, defendant must be held to the uniform law applicable to contracts such as the one now under consideration. Acme Burlap Bag Co. vs. Hardin Bag Co., 1 La. App. 379.

“Under a contract providing for payment by sight draft against bill of lading, buyer is not entitled to inspection of the goods before payment; and such is true where, by agreement of the parties, the goods are placed in the hands of a bailee, to be held until the buyer makes payment in accordance with the contract.” Broeck Tyre Co. vs. Rubber Trading Co., 217 S. W. 345, quoting;

5 Elliot on Contracts, par. 5058, p. 1204;

Williston on Sales, par. 479, p. 839;

Thick vs. Detroit, 137 Mich 708, 101 N. W. 64, 66;

Sawyer vs. Dean, 114 N. Y. 469, 21 N. E 1012;

Trenton Rubber Co. vs. Small, 3 Pa. Sup. Ct. 8;

Plum vs. Hollaner & Sons Co., 130 N. Y. S., 147;

Southwestern Milling Co. vs. Niemeir, 131 N. Y. 830.

The only questions which could be considered on the issues established by the pleadings are:

First: Whether. the contract was breached by plaintiff’s shipment of “Telegram” flour from its Hudson rather than “Telegram” flour from its Lyons mill; and,

Second: Whether the flour, irrespective of its place of shipment, was up to the usual standard of flour sold by plaintiff and known to the trade, particularly to defendant, as “Telegram” flour.

That the carload lot consisted of “Telegram” flour and that the shipment was made from the Hudson mill are facts undisputed. There is no burden of proof on either litigant to establish these facts, nor could there be any justification in law for rejection of the flour, admittedly “Telegram” flour, simply because its shipment was from Hudson rather than Lyons, Kansas, shipment from either place not being shown as a fact affecting the contract price. It follows, therefore, that the quality or grade of the flour, that is, the second question for consideration, constitutes the principal issue here invQlved. The alleged defect or undergrade of the flour, having been pleaded as a defense, the burden to establish this fact is necessarily upon the defendant.

“The burden of proof is upon the buyer to establish the defects of which he complains. In the absence of such proof, he must fail.” Fairchild Auto Co. vs. Reed, 12 Ct. of App. 351.”

The evidence in this case, admitted over plaintiff’s objection and offered by defendant to prove the defects in the flour, consist only of testimony showing that a previous shipment made by the plaintiff of a carload lot of “Rosebud” flour and consigned to other parties than the defendant, was found, upon test duly made, to be a grade of flour much below that of the brand known as “Telegram” flour, which plaintiff had, on a previous occasion, bought from the defendant and found to be entirely satisfactory for the purpose of manufacturing macaroni. Considerable part of the record is made, up of defects found in the “Rosebud” brand. This evidence was entirely immaterial, to the issue involved in this case, and should have been excluded. Two witnesses who testified to the unsatisfactory grade of “Rosebud” flour were members of the John S. Waterman & Company, plaintiff’s former agent at New Orleans. Both of these witnesses admitted, on cross-examination, that neither of them inspected or tested the “Telegram” flour shipped under the contracts here involved. There being no other testimony or proof offered on this subject, it is plain that the defendant has entirely failed to establish this point in its defense.

It is argued, on behalf of defendant, that the words found in, the contract, reading “F.O.B. Lyons”, was a covenant on the part of the plaintiff to ship to defendant only such flour as was milled by plaintiff, Lyons Mill, at Lyons, Kansas; that this provision in the contract caused defendant to believe that he was buying and would receive no other flour under the “Telegram” brand than flour which had been milled at the point mentioned, and that the breach of this vital condition of the contract on the part of plaintiff was a full justification for defendant’s rejection of the shipment.

From our understanding of the common acceptation of the term “F.O.B.”, as well as from the better and preponderating evidence found in the record concerning the trade acceptation of this term, it is impossible for us to conclude that the defendant could have believed that the term “F.O.B. Lyons” meant that the “Telegram” flour involved in the shipment should have been milled- by and shipped only from the plaintiff’s mill at Lyons, Kansas. There is abundance of proof that the plaintiff had three mills in the State of Kansas; one at Lyons, one at Hudson, and one at Burton. The testimony of the president and general manager of the Lyons Milling Company is to the effect that “Telegram” brand of flour manufactured by this company was known among all millers as a ninety-five per cent grade of flour, and that it was made of dark, hard winter wheat, and made at all of the plaintiff’s mills during the year 1920; that the term “F.O.B.” used in respect to any given milling point merely had to do with the price-fixing of the flour, and in no manner related to its grade; that the flour furnished under the contract of August, 1920, and which was rejected by the defendant, was the same grade and brand as the grade sold the preceding season to the same defendant, except that it was manufactured from a later crop of wheat, being always, however, of the dark, hard winter wheat variety, and that all three of the mills manufactured and produced all the different grades and brands of flour that the Lyons Milling Company sold.

The head miller of the plaintiff company corroborates the testimony of the witness above mentioned, and further states that he was charged with the inspection and test of all flours made at all of the mills, and that the several brands manufactured by them was given to indicate a definite grade of flour for the brand mentioned, and that the “Telegram” brand was of a standard ninety-five per cent brand. This witness further swears that this brand of flour was sold to innumerable dealers, both bakers and manufacturers of macaroni, and found highly satisfactory, and that he is the only person who has ever superintended the making of “Telegram” flour, having been- in the employ of the company over seventeen years, since its organization, and that this particular brand has never been manufactured by anyone else, and that no shipments of this brand are ever made unless it meets the standard required for the particular case. He further states that the Lyons Milling Company does not manufacture a “Rosebud” brand of flour, and never has.

Fred A. Burns, general manager of the Consolidated Flour Mills Company, a competitor of the plaintiff company, called as a witness, testifies that his concern operates four mills at different places in the state of Kansas. Further testifying as to the custom observed in milling, selling and delivering flour from his several ' mills, this witness says:

“Q. Suppose a milling company accepts an order for the sale of its ‘Telegram’ brand of flour, which brand is manufactured both at Lyons and at Hudson, Kans., and the order contains the provision, ‘F.O.B. Lyons’, would it be in accordance with the custom of the trade to permit milling companies to make shipment of ‘Telegram’ brand from Hudson, where adjustment of freight is made on basis of shipment from Lyons, Kans.?
“A. Yes, sir. When a buyer buys a particular brand of flour, he does so for the purpose of getting the brand of flour which that brand stands for. It is of no consequence to the buyer where it comes from so long as he is furnished the article he agreed to purchase. ‘F.O.B.’ a given point is in the milling trade merely a price-fixing point, and is so understood by both the buyer and the seller so far as that has to do with any brand or grade of flour. For example, in my company we own and operate four different mills, one each located at Hutchinson, Newton, Win-field and Caldwell, Kans., and we sell a number of different brands of flour, all of the brands being registered and advertised by us exclusively. Each brand denotes a particular grade of flour. If we sell a given number of barrels of ‘United’ (one of our registered brands) flour F.O.B. Hutchinson, Kans., where we have a mill, we feel entirely free and often do fill such orders from one of our other mills, either at Newton, Winnfield or Caldwell, Kans., for each of the four mills makes all of the different grades and brands of flour we manufacture. It is not considered requisite, in the flour-milling trade, to furnish a particular brand of flour from a particular mill. As I stated before, the brand and grade of flour is what is sold, and not the place of manufacture.”

The above testimony is clearly corroborative of that already given by the operators of the Lyons mill.

R. D. Abrams, a local flour broker at New Orleans, but not a manufacturer, holds for defendant a view contrary to that above noted. This witness testifies in part as follows:

“Q. You are a competent railroad man?
“A. No, sir, I am a flour broker.
“Q. In the flour business, in making contracts for the sale of flour, what is the meaning of the initials F.O.B. on flour sales?
“A. When an intelligent flour buyer buys flour F.O'.B. certain mills, it is understood that the flour is to originate at that point and be milled by the particular mill at that point.”

A preponderance of evidence is against that of this local broker, as is also the weight of authority concerning the accepted meaning of the term “F.O.B.”, as used in practically all lines of business.

In R. C. L., verbo “Sales”, seq. 159, it is stated:

“The abbreviation ‘F.O.B.’ is frequently used in contracts of sale; some courts hold that evidence is admissible to show that the letters stand for the words, ‘free on hoard’; but, generally speaking, it is held that the courts will take judicial notice that such is the meaning, and it has been' held that the abbreviation has acquired such a plain meaning as to preclude the admission of evidence of a local usage or contemporaneous oral understanding of the parties to explain its meaning. This abbreviation is considered as referring to qualifying the delivery, and it is generally considered to mean that the subject of the sale is to be loaded by the seller on the vehicle or conveyance for shipment without any expense on the part of the buyer. Where the provision is for delivery P.O.B. the point of shipment, the duty to pay the transportation charges is upon the buyer, but it is otherwise where the provision is P.O.B. point of destination.”

We can find no justification for the rejection of the flour, the identical brand of which is shown to have been previously purchased and used by defendant with full satisfaction in his manufacture of macaroni. The J. S. Waterman Company, while formerly agents for the plaintiff company, expressed the opinion in a letter addressed to plaintiff, of date October 21, 1920, that defendant had taken a very arbitrary stand in rejecting the shipment here involved. We are inclined to the same view. The judgment should have gone for the plaintiff.

It is therefore ordered that the judgment herein appealed from be reversed and set aside.

It is. further ordered, adjudged and decreed that there be judgment for plaintiff, Lyons Milling Company, and against defendant, Jacob Cusimano, in the full sum of four hundred and sixty dollars and fifty-six cents ($460.56), with legal interest thereon from judicial demand, and for costs in both courts.


text:
    No. 10,039
    Orleans
    TOUPS v. MORGAN’S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY
    (March 15, 1926, Opinion and Decree)
    (April 12, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 8; Railroads — Par. 80.
    In a railroad crossing accident caused by collision of an automobile and a train, the burden is upon the plaintiff to affirmatively prove the allegations of negligence charged in the petition.
    2. Louisiana Digest — Railroads—Par. 63, 64.
    Where it is conclusively shown by a preponderance of evidence that a clear view of an approaching and carefully operated train could be had by both the driver of an automobile and his wife as an occupant thereof, for a distance of more than six hundred feet, while their car, traveling slowly and while under control, was within fifty feet of the track it is negligence barring recovery, for each of the occupants not to have seen and heard the approaching train in time to avoid the accident.
    3. Louisiana Digest — Automobiles—Par. 6.
    Though it be the general rulé of law that the negligence of the driver of an au-| tomobile cannot be attributed to one traveling with him, neither occupant of the vehicle can recover when it is shown that the proximate cause of the accident was the failure of both to have, seen what each of them should have seen.
    Appeal from Twenty-fourth Judicial District Court, Parish' of Jefferson, Hon. L. Robert Rivarde, Judge.
    Action by Mrs. Elda Duplantis Toups, wife of Thomas J. Toups, and Thomas J. Toups against Morgan’s Louisiana and Texas Railroad and Steamship Company, for damages. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    McCabe, Schneckenberger and Emile Pomes, of New' Orleans, attorneys for plaintiff, appellee.
    John E. Fleury, of New Orleans, attorney for defendant, appellant.
   BELL, J.

This is a damage suit, arising from a collision with plaintiff’s automobile with one of defendant’s eastbound freight trains at Marrero, Louisiana. The accident occurred at 4:30 p. m., September 1, 1922, where defendant’s tracks intersect or cross the Barataría Highway. At this point, running parallel to defendant’s main tracks, and to the north or river side of them, are two other tracks belonging to the Texas & Pacific Railroad Company, as well as a spur track of the latter company.

The only occupants of the automobile were the plaintiffs herein, (husband and wife), who respectively seek recovery for physical injuries, etc., in the amount of $11,615.00 and $50,200.00, or a total claim for damages in the sum of $61,815.00.

The petition sets forth that while the husband was driving his automobile in which his wife was a passenger, he was traveling the Barataría Highway, going south from the Napoleon Avenue ferry, at a speed of from ten to twelve'miles an hour; that having his ear under control, “he looked to his left for the approach • of trains and that upon looking to his right he could not see the approach of trains until he reached the first of the said railroad tracks, owing to the buildings and tank cars on the property of the Texas Oil Company”.

It is further alleged that defendant had full knowledge of the existence of the aforesaid buildings and tank cars which obstructed the view of its trains proceeding toward New Orleans. The acts of negligence finally charged against defendant are, first, that its train was running at an excessive rate of speed, between thirty and thirty-five miles an hour, and secondly, that no signal whatever by bell, whistle or otherwise was given to warn plaintiffs of the approaching train.

The defense was a general denial, coupled with an alternative plea of contributory negligence.

There was judgment in favor of the wife for $3,500.00, and in favor of the husband for $1,500.00. Defendant has appealed, and plaintiffs have answered the appeal, praying for an increase of the respective awards to the amounts originally claimed.

It appears from the evidence that the plaintiffs, who reside in Houma, Louisiana, had visited the City of New Orleans after driving from their home in a small Saxon automobile, which they had left on the west side of the river at the Napoleon Avenue ferry, landing. After attending to the various. ■ commissions which caused them to drive to the city, they returned to their automobile and proceeded from the ferry < ■ landing out Barataría road toward the several railroad tracks which intersect- the highway at Marrero, Louisiana. • The - husband was driving the car, but’his-wife-was seated on his right, as the automobile faced the woodside of the railroad tracks. The husband testifies that before reaching the first railroad track he came to a stop, and then slowly proceeded at about from three to four miles an hour across several tracks, and that as he' reached the defendant’s track, which was the last one to be crossed, the defendant’s freight train came suddenly upon him, but it was too late for him to do anything.- His testimony is, in part, as follows: ■

“Q. After you started to go across the track did you stop for anything else?
“A. No, sir, I • did not until I tried to stop . after seeing the train.
“Q. After you crossed the first track, how far could you see to your right?
“A. After I crossed the first track?
“Q. Yes.
“A. I really don’t know.
“Q. Was there anything to obstruct your view to prevent you from seeing up the track? .
“A, Not after I was on the track.
“Q, After you passed the first track?
“A.. After I got on the first track and could look around, I considered I had a clear" right of way.”

This witness had previously testified that when about one hundred and fifty feet from the first track, he had noticed to his right, that is to say, the direction from which the train was coming, that there was a building and some' tank cars, hut he admits, on cross-examination, that none of these obstructions prevented "his final view of the defendant’s track, which was the last one he had to cross, and that all' of- these obstructions were behind him and to the right of him, and he further testified:

“Q. After you crossed the track shown here in the picture, I say, then, that the house must have been behind you, of course; is that correct?
“A. It stands to reason, after I crossed that track; it would naturally throw the house behind me to my right, in the back of me.
“Q. So after you got to that point, was there anything to prevent you from looking up this track to your right?
“A. There was nothing, so far as I was concerned that I could see to stop me from looking; I looked and did not see anything.
“Q. There was no obstruction there, was there?
“A. No more than oil cars.
“Q. But you had crossed this track. I am talking about after you had crossed this track; there was nothing in addition to the oil cars that would prevent you from looking up on an angle toward the M. L. & T. tracks, was there?
“A. No, sir, there was nothing.
“Q. You could see on an angle, couldn’t you, in this direction?
“A. Well, I could see, I had eyes to see, I thought I had looked carefully. I don’t remember of any obstruction.
“Q. Could you tell us why you didn’t see the train?
“A. Because it must have been too far.
“Q. The train was too far away?
“A. It seemed so.
“Q. About how far away?
“A. I don’t know, because when I seen the train it was on me.
“Q. About how far could you see; you have nothing the matter with your eyesight, have you?
“A. Positively nothing that I ever knew of.
“Q. And you couldn’t say why you didn’t see it, except that you considered that the train was too far away?
“A. That is the only thing; I could consider nothing after the train was right on me and struck me.”

The wife testifies, in part, as follows:

“Q. You didn’t hear anything at all to indicate that a train was coming?
“A. No, sir, all I seen was a big train coming, and all at once it seemed to jump on us.
“Q. Do you remember that little building on your right, as you stopped at the first track?
“A. Yes, sir, we did stop.
‘‘Q. Did you stop after that?
“A. We were going about three to four miles an hour after that, over the first track.
“Q. You never stopped after that, did you?
“A. I don’t remember until the train hit us; I don’t remember after that.
“Q. After you proceeded to cross the track, did you look up and down the road to see if a train was coming?
“A. Certainly I did.
“Q. How many times did you look, Mrs. Toups?
“A. I am always watching my way ahead of me.
“Q. Did you see Mr. Toups look up and down, too?
“A. X didn’t look at Mr. Toups, I paid my own attention about looking where we were going.
“Q. In other words, you had the same opportunity to look and see as Mr. Toups had?
“A. Certainly.
“Q. And you did look and didn’t see any train coming?
“A. I never heard or seen anything at all.
“Q. And you didn’t say anything to Mr. Toups at all?
“A. No, sir.
“Q. Until the train and the machine were about to strike, is that right?
“A. Yes, sir.
“Q. When you first saw the train, what was the distance between you and that train?
“A. When I seen the train I seen we were gone.
“Q. The automobile must have been pretty close up to the rail, is that right?
“A. Sure we were, and when we seen it was too late when we seen the train.
“Q. You hadn’t seen this train at any time up to the time you hollered to your husband?
“A. The moment I seen it the train was on us, and it hit us at the moment I told him, ‘Oh! Look what is coming.’ That is all I remember.
“Q. Did you listen to hear if there was any train coming?
“A. Certainly I did.
“Q. When did you listen, Mrs. Toups?
“A. Every track we went over.
“Q. Every track you went over?
“A. Yes, sir.
“Q. To your left and to your right?
“A. Yes, sir.
“Q. You said nothing to your husband?
“A. Nothing whatever.
“Q. You had the same opportunity as Mr. Toups to see from the right or left; in other words, to look and listen; to look to see if a train was coming or to listen if one was coming, as he had, didn’t you?
“A. Yes, sir.
“Q. You didn’t see this train coming, he didn’t see it and you didn’t hear it?
“A. When we seen the train we seen it both at the same time.”

Taking the testimony of both plaintiffs as above noted to be true, it is conclusive that neither of them, though looking for the approaching train, saw it until the moment of the collision, when it was too late .to avoid the accident. Their negligence in this respect must bar recovery unless it can be established — as alleged by them —that their view of the train was obstructed, and that the negligent operation of the train was the direct and proximate cause. of the accident. However,: both, plaintiffs admit that all obstructions referred to in their petition were well behind them after they had crossed the first track of the Texas & Pacific Railroad. The accuracy of the blue-print prepared by defendant's Divisional Engineer and made by him mnly a- few days after the accident, has not been challenged in any- manner by plaintiffs. This document discloses in 'detail the exact Zooms in quo, as to tracks, buildings, etc., from the point of collision west of the section house, located some 2647 feet beyond. This plan, as well as the photographs offered by both litigants, establishes beyond controversy that from a point just beyond the intersection of the first Texas & Pacific track with the Barataría Highway, and within fifty feet north of the point of accident, a straightaway view for at least 637 feet could be had along defendant’s track in a westerly direction from whence the train was approaching.

We find nothing in the evidence to justify plaintiffs’ contention that surrounding buildings, tank cars or other obstructions prevented a view of the approaching train. A small “pagoda” station belonging to the Texas & Pacific railroad is shown to have been on the right or west side of the Barataría Highway, and about nine feet north of the first Texas & Pacific track. This building, as indicated by its name, was only partially enclosed, boards .on each side running from its foundation to within four or five feet of the roof. But even if the construction of this building, in any manner, tended to obscure the view of. trains approaching the highway from the west, it could not have obstructed the view of either plaintiffs in this case, for the reason that their automobile had passed beyond it in a southerly direction, causing it to be behind plaintiffs’ car when they had. gotten to within fifty feet of defendant’s tracks. The evidence shows that both plaintiffs were quite familiar with the surroundings, the tracks and buildings at the place of the accident.

■ Those witnesses for plaintiffs testify that they were seated in an automobile parked on the upper or right side of the Barataría road, about 150 feet from the railroad crossing and toward the ferry landing; that they noticed plaintiffs’ car as it was going toward the tracks, and that it was moving at a very slow rate of speed. All of those witnesses agree in their testimony as to the speed of the train, which they estimated to have been 30 or 35 miles an hour; each of them swear that they heard no whistle or bell, and for this reason are satisfied that no signal of the approaching train was given. One of the witnesses seated in the parked car was talking to the other two occupants, who were man and wife. He swears that he never 'saw plaintiffs’ car stop after it had passed him, and that the “switch” (?) engine striking the car was what attracted his attention. This same witness says he saw the fireman of the engine with his back turned to the crossing, and apparently talking to someone, and that the train came through without any warning. He is positive in his testimony that the fireman was not even looking at the crossing, and yet, in the next breath, he admits, on cross-examination, that he could not see the fireman until after he had passed the crossing and until after the accident. Again, this witness testifies, although engaged in business which daily kept him in close proximity to the scene of the accident, that he could not remember whether there was ever any cross-arm signs at the railroad crossing, but that he noticed them being painted the day after the accident. The Divisional Engineer, whose duty was to supervise and direct the upkeep of defendant’s property in this vicinity, positively swears that these signs were all up at the time of the accident, and that none were painted until late in the fall.

The wife of the owner of the parked car testifies that she is sure there were no cross-arm signs, such as appear in photographs offered. She and her husband, though both were engaged in conversation with each other, and with the friend, say that no warning by bell or whistle was sounded. Each of them estimate the speed of the train at from 30 to 35 -miles an hour, though their testimony shows clearly that neither of them- saw the train until the moment of the impact, and then only as it crossed the highway immediately in front of them, the highway being from 35 to 40 feet wide.

The narrative of the accident, as gathered from the testimony of the entire crew operating defendant’s train, is given by the engineer, fireman, two brakemen, the conductor and the flagman. The train in question was a freight train, consisting of the engine, tender, caboose, and forty-four freight cars, all but eight of the cars being loaded. The train was running as an “extra”, local, that is, not on any designated schedule, and was traveling from Morgan City to Algiers, Louisiana. All of the crew testify that the train was not going over fifteen miles an hour at the time of the accident; that about a mile west of Marrero station, the engine blew a station signal, which is one long whistle, and that thereafter, until reaching the highway crossing, four other signals for intermediate crossings were also blown, the latter signals consisting of two long, followed immediately by two short whistles. That the last of the road crossing signals was given at about five hundred to eight hundred feet' west of the highway. AU of these signals were heard by all of the crew, and both the engineer and the fireman swear ,that the .automatic bell, operated from the cab of the engine, was continuously ringing from a point fully two thousand feet west of .the. highway and up to the moment of the collision. The fireman who was on that side of the engine from which plaintiffs approached the crossing testifies .that he first saw the automobile when his engine was about one hundred feet west of the Barataría Highway, and that the car was about one hundred feet from the track, moving apparently at a speed of from twelve to fifteen miles per hour; that the automobile at the next moment ran not onto the track but into the side of the engine, hitting the end of the engine bumper or crossbeam, and that he yelled to his engineer who applied all brakes and brought the train to a stop some five hundreet feet from the point of collision. Several of the crew testified that upon examining the engine after the accident they found the end of the bumper - scarred on the side from which the car had approached. From all the evidence before us, we are convinced that the automobile collided with or bumped into the engine, never getting beyond or upon the rails of the track, and that every .opportunity or chance to avoid the accident was with the plaintiffs rather than the defendant. All of the train crew, at the moment of the accident, appear to have been at their proper stations, observing due care in the operation of the train, which we find was not traveling at an excessive speed nor violating any local, municipal or company rule regarding speed.

We do not indorse the views of the trial judge, as expressed in his opinion or reasons for judgment, to the effect that little weight can be given to the uniform testimony of defendant’s employees; the evidence shows that all of the crew .had been employed by defendant for many years, none of them less than ten years, and several of them for twenty-five or thirty years. It cannot be assumed that employees doing service for such a period of time could be men willing to violate the sanctity of an oath. The speed of the train could not have been greater than what the crew stated it to be, for we find that the train was brought to a stop within five hundred feet after the collision. This would indicate, considering the average length of a freight car to be forty feet, as shown by the evidence, that the train was stopped in a distance less than a third of its length, which could hardly have been possible had the train been going at an excessive rate of speed. But had the employees of the company been in any manner at fault, as we are unable to conclude, it is evident beyond discussion that each of the plaintiffs — admittedly in possession of all their faculties — were fully warned ' of possible dangers incident to their crossing several railroad tracks prior to reaching the defendant’s track. We are convinced that they were also able to see while fifty feet from defendant’s track any train approaching thereon within six hundred or more feet from the point at which they were traveling.

The law applicable to circumstances and facts such as are presented in the instant case, has been fully noted by this court in Gibbons vs. New Orleans Terminal Company, et al., 1 La. App. 371. The Supreme Court, in affirming this decision, said:

“The jurisprudence of this State is uniform to the effect that a pedestrian or a driver of a vehicle upon approaching railway tracks and public railway crossings must, at his peril; stop, look and listen before proceeding on the track or to make the crossing, and if he does not do so he is guilty of contributing to any injury which he may suffer, and cannot recover therefor.” Gibbons vs. New Orleans Terminal Co., 159 La. 347, 105 South. 367.

It is contended on behalf of the wife, the other plaintiff in this case, that the husband’s negligence in operating the automobile cannot be attributed to her as an occupant of the vehicle. This doctrine, under facts justifying its application, has been frequently though not uniformly maintained. It was so held by the Supreme Court in Churchill vs. Texas & Pacific Railway Co., 151 La. 726, 92 South. 314. The facts in that case were, in many respects, similar to those now under consideration. In the cited case, however, the court applied the rule upon two findings of fact which are not present in the instant case. The car, in the Churchill case, was being driven at from twelve to fifteen miles an hour (not three or four teen miles an hour (not three to four plaintiffs); its 'speed was accelerated when the driver suddenly discovered the rapid approach of the train, which was traveling at twenty-five to thirty miles an. hour. The other uccupant of the car had little or no opportunity- to warn the driver. There were no series of tracks to be crossed, nor were the occupants of the car given the several and timely opportunities to look and listen for the approaching train, as were afforded plaintiffs in the present case. The court finally concluded — as we are unable to do in the present case — that the train in the Churchill case was negligently operated. On this point, the court said:

“However, as to the giving of the warning of its' approach, we conclude, without finding it necessary to review the voluminous record on the point, that the evidence clearly preponderates in favor» of .t^e contention of the plaintiff, that is, that4 ■the signals, ringing the bell and blowing the whistle, were not given, as required by the circumstances of this case, and that defendant was guilty-of negligence in this respect.”

Considering the record admissions of both plaintiffs, as shown by their own testimony heretofore quoted, we are compelled to conclude that each of them were recklessly disregardful of the approaching train, and that their negligence in, this respect precludes recovery as to either of them.

Nobel vs. Chicago, Milwaukee & St. Paul Railway Co., 298 Fed. 381.

Barksdale-Administrator, vs. Southern Railway Company of Kentucky, 261 S. W. 656.

Bradley vs. Mo. Pac. R. R. Co., 288 Fed. 484.

Anderson vs. Davis, Director General, 251 S. W. 86.

We are of the opinion, for the reasons and upon the authorities herein noted, that the judgment of the trial court is erroneous.

It is therefore ordered, that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment for defendant, the Morgan’s Louisiana and Texas Railway and Steamship Company, rejecting plaintiff’s demands, at their cost in both courts.


author: CLAIBORNE, J.

text:
    No. 10,295
    Orleans
    KITCHEN v. FERGUSON
    (April 26, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Bills and Notes— Par. 224, 226; Evidence — Par. 228.
    While the usual place for parties to sign a promissory note is well established by custom, and while it is proper to conform to the custom, the place is not made essential by law or jurisprudence; on the contrary, parties to a note may sign in any part of it on the front or on the back; the quality in which they sign being a matter of intent and proof.
    Appeal from Civil District Court, Division “E”, Hon. Wm. H. Byrnes, Jr., Judge.
    Action by J. C. Kitchen against Robert Ferguson. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. E. Torgusen and Daniel Wendling, of New Orleans, attorneys for plaintiff, appellee.
    Warren V. Miller, of New Orleans, attorney for • defendant, appellant.
    Eugene S. Hayford, of New Orleans, for exceptor.
   CLAIBORNE, J.

This is a suit on a promissory note of $2000 dated July 2, 1921, payable one year after date to the order of plaintiff with eight per cent per annum interest from date till paid upon which has been paid two sums on account, leaving a balance due of five hundred and thirty seven 97-100 dollars with interest.

The defendant filed an excepton “that said petition and exhibits attached thereto disclosed no right or cause of action, without stating the reasons why”.

The exceptions were overruled and properly so.

We are informed in argument that the exception was based upon the ground that the defendant did not affix his signature upon any particular part of the front portion of the note, but that he signed on the top part of the back of the note.

As a question of law, his signature there and nowhere else, was sufficient to bind him as a maker.

In 8 Corpus Juris, p. 108 S. 198, we read on p. 109:

“It (the signature) may be written across the face of the instrument, and one may even sign as maker on the back of the note.”

And on p. 108:

“Ordinarily the signature of parties to negotiable instruments have a well understood position on the paper, but so far as the nature of the liability is concerned, it is generally immaterial where a person signs, since the intent of the signer ordinarily governs the nature of his liability.”

Note 37 “and one 'may even sign as maker on the back of the note”, also 7 Cyc. p. 614.

Another reason is, that plaintiff having alleged that he is the holder of a note “made by the said Robert Ferguson and signed by him” might sustain that allegation by proof, if allowed the opportunity. Pineland Realty Co. vs. Clements, 149 La. 274, 88 South. 818.

In Nolan vs. Brown, 152 La. 333, 93 South. 113, the court said on p. 336:

“Whenever a negotiable bill or note is given for which one in reality is primarily bound, though by the manner in which his name is placed thereon he may appear to be bound in some other capacity, the true facts may always be shown as between the original parties.”

In “Defense to Commercial Paper” by Joyce, p. 114, (Ed. 1924) it is said:

“The place of signing a note is immaterial as regards its execution by the parties, the relation assumed by the signing being a matter of proof.”

See also 122 Ala. 5064 Conn. 389; 26 Ga. 223; 51 Ill. 435; 54 Ill. 675; 17 Ala. 630; 57 Ill. 216.

In Daniel on Negotiable instruments (6th Ed.) S. 74, p. 109 we read:

“It does not matter upon what portion of the instrument the maker or drawer affixed his name, so that. he signed as drawer or maker.”

The defendant filed no answer, and judgment by default was confirmed against him. He appealed.

On confirmation of default C. E. Torgusen, attorney for plaintiff, testified as follows:

“On the date of this occurrence July 2, 1921, Captain Kitchen came into my office together with Captain Ferguson, and Captain Kitchen requested me to make out the note for $2000; that he was going to loan $2000 to Captain Ferguson, who was going to give him the note, with eight per cent interest. I wrote this note out myself on the typewriter and made this endorsement; Captain' Ferguson told me he owed Cowley, the steamship agent, $2000, and that Cowley had a $2000 Liberty Bond belonging to him and the money was given to Ferguson in my office; Captain Kitchen had to go to the bank to get the money. The note was not signed in my office, and I told Ferguson when he got the money to come back and see me; so he came back and told me that everything was all right, and he gave Captain Kitchen this $1000 Liberty Bond in my presence, and he (Captain Kitchen) told me he had given him this note * *

Witness talked to E. S. Hayford, attorney for defendant; together they checked up 'all the receipts that Ferguson received from plaintiff, and everything was agreed to be correct; Hayford agreed to give a ninety-day note if suit was not filed, that is Captain Ferguson’s signature on the note; the amount sued for is correct.

The judgment is correct and it is therefore affirmed.


text:
    No. 10,392
    Orleans
    SWORDS v. CORTINAS
    (April 26, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Litigious Rights— Par. 4.
    The prohibition of a sale of litigious rights to public officers connected with Courts of Justice mentioned in Article 2447 of the Civil Code is in the interest of the plaintiff and defendant in the suit the object of the sale and not of the transferee, and therefore the latter cannot urge the nullity of the sale, which is only relative and not absolute.
    Appeal from First City Court, Division “B”, Hon. Val. J. Stentz, Judge.
    Action by Alex W. Swords against J. M. Cortinas. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Louis E. Jung, of New Orleans, attorney for plaintiff, appellee.
    W. W. Wall, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff, as assignee for part of a claim sues, the defendant who promised to, pay it.

The facts are that Louis Yuacio contracted with Mrs. Massa to repair her property for the sum of $4425; that Yuacio complied with his contract; but that Mrs. Massa did not; that Yuacio sued Mrs. Massa for the payment of said $4425;

That on December 11, 1922, Yuacio transferred all his interest in said suit to the defendant Cortinas on certain conditions;

That on May 11, 1923, a further agreement was made by which Cortinas was to be responsible for ail bills contracted by Yuacio; that Cortinas was to prosecute the suit against Mrs. Massa and out of the sum recovered was to pay himself $3925 and Yuacio $500, and was not to compromise the suit for less than $4425 without being personally responsible to Yuacio for $500;

That Yuacio became suspicious that Cortinas was charging him with more bills than he, Yuacio, had contracted for the repairs of the building and for that reason, on April 23, 1923, he employed Alexander W. Swords, an attorney at law of this city, for the purpose of investigating these bills-

On May 7, 1924,-an agreement was made between these three parties by which Yuacio admitted being indebted unto Swords in the sum of $170 for the services rendered in the above matter, in full acquaintance and discharge of said indebtedness Yuacio transferred whatever interest up to $170, he might have under the agreement of May 11, 1923, to Swords who accepted the same in full payment of his services; and Cortinas agreed to carry out the original agreement of May 11, 1923, by substituting Swords ' in the place of Yuacio.

On September 20, 1924, Cortinas compromised the suit against Mrs: Massa for $2450 and refused to pay $170 to the plaintiff; hence this suit.

The - defense is that it was impossible for the plaintiff, an attorney at law, to purchase a litigious right, and that he acquired no- right of action by that purchase in violation of the law.

There was judgment for- plaintiff and defendant appealed.

Defendant relies upon Article C. C. 2447 (2422) which reads as follows:

“Public officers connected with Courts of Justice such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.”

That article being in restraint of individual right must be strictly interpreted and applied only to the parties intended to be reached. 6 C. J. 619; 11 C. J. 238.

A familiar rule of interpretation of statutes is to discover their object and the evil which it was their purpose to prevent. C. C. 18. Article 2447 was enacted for the purpose of protecting possessors of litigious rights against the influence of judicial officers who might take advantage of their position to induce these possessors to transfer their rights to them at a sacrifice on false representations as to their value, or chances of success, or recovery, or as to the justice they might expect from the courts; and also to prevent these officers after they had acquired these rights, from unjustly influencing the courts against the defendants or debtors. It will therefore he seen that the article was passed in the interest of the transferor and plaintiff creditor and of the defendant and debtor, and not of the transferee.

The law looked with suspicion upon the transferee, and threw the shield of its protection over both the plaintiff and defendant.

It feared that the transferee might take an undue advantage of his position, and in order to avoid the necessity and scandal of proof thereof it declared that as far as the transferee was concerned he could acquire no rights.

In this case the transfer by Yuacio to Cortinas has borne its fruits.

By virtue of it Cortinas, collected of the defendant $2450. By its provision, Cortinas agreed to pay Yuacio $500; subsequently he acknowledged a transfer of this sum from Yuacio to Swords the plaintiff up to the amount of $170 and agreed to carry out his original agreement by “substituting Swords to Yuacio”. Cortinas has reaped the advantage of his contract with Yuacio and it would be inequitable to permit him to repudiate his obligations under it. Qui sentit commodwm, defjet sen-tire et onus”-. Fortunately the law will not permit him to do so.

Accordingly the jurisprudence of our State has been that the nullity resulting from a purchase in violation of Article 2447 is only relative, in the sense that only one whose right is violated can invoke it. New Orleans Gas and Light Company vs. Webb, 7 La. Ann. 164; Lane vs. Cameron, 36 La. Ann. 778; Kuck vs. Johnson, 114 La. 783, 38 South. 559; Gilkeson Sloss Commission Company vs. Bond and Williams, 44 La. Ann. 841, 11 South. 220; Saint vs. Martel, 122 La. 93, 47 South. 413.

In this opinion our Supreme . Court is supported by the great majority of French commentators upon the similar Article 1597 of the Code Napoleon.

Baudry-Lac in Vol. 17, p. 214, S. 266 says:

“We think the nullity is of a private order and purely relative; it can be set up only by those whom the law has intended to protect, that is by the transferor, who is supposed to be the victim of the influence exercised over him by the transferee by reason of his quality, and by the debtor in order to allow him to escape from an unequal combat with unequal arms to which he did not expose himself willingly. But we cannot admit that the transferee can avail himself of the fact that he has violated the prohibition pronounced against him, in order to annul a transfer of which the other interested parties do not complain. It is not for his benefit, but against him, that the nullity is pronounced. How could he be permitted to take advantage of it?”

Cortinas has not been injured by the transfer from Yuacio to Swords. He has not been cut off from any defenses against Yuacio. The only effect of the transfer has been the substitution of one creditor for another. Even were the transfer annulled Yuacio would at once resume his quality of creditor of Cortinas.

See also 4 Aubry & Ray, p. 453, note 3 S. 359; 16 Duranton, p. 174 S. 145.

Laurent differs in opinion.

He thinks that the nullity is one -of public order, and that it is absolute. But he says in Vol. 24, p. 74 S. 63:

“The contrary opinion is generally admitted * * * authors agree only upon one point, that is that the transferee has no action in nullity, since it is against him that the prohibition is established.”

It is therefore ordered that the judgment be affirmed.


author: WESTERFIELD, J.

text:
    No. 9284
    Orleans
    WALTER AND WALZER v. HIBERNIA BANK AND TRUST COMPANY
    (April 12, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Banks and Banking —Par. 59; Pledges — Par. 33,
    A bank in transferring a warehouse receipt which it holds as pledgee, to a third person with the consent of the pledgor does not thereby warrant the genuineness of such receipt or the quantity or quality of the goods therein described.
    Appeal from Civil District Court, Division “C”, Hon. E. K. Skinner, Judge.
    Action by Walter and Walzer against Hibernia Bank and Trust Company. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dart, Kernan and Dart, of New Orleans, attorneys for plaintiff, appellant.
    McCloskey and . Benedict, Michael M. Irwin, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues the Hibernia Bank and Trust Company, hereinafter referred to as the bank, for $523.93, the alleged purchase price of a certain warehouse receipt plus $30.00, the expense alleged to have been incurred in an endeavor to get possession of the merchandise named in the warehouse receipt.

From a judgment in defendant’s favor dismissing the suit plaintiff has appealed.

The record presents the following facts:

The McPhonso Oil Refining Company to secure a loan it had obtained from the defendant bank pledged to the bank a warehouse receipt issued under date of October 13, 1921, by the Louisiana Oil Warehousing Company calling for 14,-371.56 gallons of kerosene. Susequently with the consent of the bank 400 gallons were withdrawn and that fact properly noted on the receipt. Thereafter, in April, 1922, Mr. E. W. Walter, a member of the plaintiff firm purchased from the Mc-Phonso Oil Company the kerosene represented by the warehouse receipt and by agreement' with the -bank the money was paid to the bank and the receipt delivered to plaintiff. Thereupon plaintiff sent several tank cars to the Louisiana Oil Warehousing Company for the purpose of getting the oil, but, discovered that there was no oil in the warehouse covered by the receipt.

The bank relies upon Sec. 46 of the Uniform Warehouse Receipt Act (No. 221 of 1908). This section reads as follows:

“A, mortgagee, pledgee, or holder for security of a receipt who in good faith demands' or receives payment of the debt for which such receipt is security, whether from a party to a draft drawn for such debt or from any other person, shall not by so doing be deemed to represent or to warrant the genuineness of s.uch receipt or the quantity or quality of the goods therein described.”

Plaintiff contends that it bought the warehouse receipt from the bank and urges the application of the general law of implied warranty in all sales. A letter written by the bank under date of April 6, 1922, is pointed to as evidence of the alleged sale by the bank. This letter reads as follows:

“April 6th, 1922.
“Messrs. Walter & Walzer,
“City.
“Dear Sirs:
“This is to acknowledge receipt of $523.93, in payment of Louisiana Oil Warehousing Company receipt Number 129, for 14,371.56 gallons of kerosene, which has been reduced by a release of four hundred (400) gallons, on April 3rd, to 13,971.56 gallons, and stored in tank number 14.
“Yours very truly,
“(Sgd) L. P. BANCHET,
“LPB:CS Assistant Cashier.”

It is further contended that the bank did not “demand payment of the note or receive payment of the debt from the plaintiff”, and that it did not immediately' apply the money received from plaintiff to the -loan. It is admitted however that the money was eventually so applied.' “Doubtless the proceeds of this payment did eventually apply against the note because the ledger sheet of the account ■ shows 'that on April 26, 1922, after accumulating - in the account (McPhonso Oil Refining Company account) a sum in excess of $900.00, the account was closed out and the balance applied to the note.” Counsel also says that if the bank was the pledgee of the receipt it should have told Walter at the time it delivered the receipt to him.

Our views are in accord with those of the trial judge as expressed in his reasons for judgment and we think with him that the case is controlled by Sec. 46 of the Uniform Warehouse Receipts Act and is with defendant.

One who obtains a warehouse receipt from a bank knows or in any event is- presumed to know that the bank is in the business of lending money and not that of buying and selling merchandise. Consequently, there is no necessity of informing such person that the bank holds the warehouse receipt as a pledge securing a loan, and in the absence of any special warranty or of fraud actual or constructive the bank can not be held to guarantee anything. The plaintiff in this case lost his money which he paid to the bank but the loss was in no sense due to the bank. The fact that the bank might have lost to the extent that its security was depreciated or worthless if plaintiff had not taken it over is not material. In the first place it does not appear that the McPhonso Oil Company was insolvent or unable to replace worthless collateral with other and better security. Nor is it anywhere shown that the disappearance of the kerosene was due to the fault or fraud of the McPhonso Oil Company. But in any case the law absolves the' pledgee, from responsibility for “the genuineness of such receipt or the quantity or quality of the goods therein described”. The fact that the assistant cashier of the defendant bank called the transaction in his letter a sale, does not add to the bank’s responsibility. Moreover the evidence shows that plaintiff bought from the McPhonso Oil Company with whom all negotiations leading to the agreement of sale were had. Nor can the fact that the money was first credited to the account of the bank’s debtor affect the situation. The note which is in evidence stipulates that all credits due the maker from any source was subject to immediate application by the bank to the payment of any indebtedness due the bank in the event of default in payment or decline in the value of securities pledged and a few days later this money and other credits were seized by the bank and applied to the payment of the loan. Plaintiff was in no way prejudiced by this transaction and we see no merit in the contention that the money should have been immediately applied to the loan.

The case of New Iberia National Bank vs. Teche Canning and Syrup Company, 159 La. 946, 106 S. 451, we do not think in point.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,304
    Orleans
    BOHANON v. STEWART
    (March 29, 1926, Opinion and Decree)
    (April 12, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 4.
    A contract by which one purports to lease to another a certain oil burner for the period of sixteen and one-half months in consideration of $495.00, payable at the rate of $30.00 monthly, with the privilege of buying for $1.00 at the end of the lease conditioned upon payment of all prior installments and other usual conditions of sale, will be construed as a sale and not as a lease.
    2. Louisiana Digest — Sales—Par. 216.
    A vendor, unless warranty is waived, warrants the thing sold as fit for the particular purpose for which it was bought.
    3.' Louisiana Digest — New Trial — Par. 3.
    A trial court may, ex-officio, order a new trial of the whole case, or may reopen it for the purpose of hearing additional evidence on a particular branch of the case.
    Appeal from First City Court, Hon. W. Alexander Balms, Judge.
    Action by W. C. Bohanon against Samuel B. Stewart.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    E. E. Talbot, of New Orleans, attorney for plaintiff, appellee.
    Chas. J. Rivet, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit to recover money paid under a contract which the plaintiff claims to be a sale and the defendant a lease.

Plaintiff alleged that on September 9, 1924, the defendant leased to him a combustion oil burner with the privilege of buying it at the end of sixteen and one-half months for the price of one dollar, in consideration of $495.00 payable in monthly installments; that said burner, as defendant well knew, was to be used by plaintiff in his cleaning and pressing plant; that the said contract, under the laws of this state, was a sale; that the said burner was guaranteed to keep the boiler in plaintiff’s place of business at a working pressure of sixty pounds of steam; that said burner never functioned as defendant represented it would; that at no time was it able to keep the sixty pounds of steam guaranteed and necessary to the operation of plaintiff’s plant; that immediately after the installation of the burner under the supervision of A. L. Develle, an employee of defendant, it became apparent that it was not giving satisfactory service and plaintiff so advised the defendant and requested him to take steps to have the burner Work properly or to take it out forthwith, and in the meantime plaintiff refused to make any further payments; that the defendant asked for delay until a factory representative from Milwaukee should come down and instruct Develle in the operation of the burner and adjust plaintiff’s burner so as to make it operate successfully; that the representative from Milwaukee did come down and suggested several changes, that a damper be put in the boiler and a change be made in the brickwork inside of the boiler; that changes were made under the supervision of Develle and the,factory representative; that after those changes were made the burner did produce sixty pounds of steam, but did not mainin this pressure during the operation of the presses, and the work of the burner was worse than before the changes; that Develle made seven or eight experiments without avail; that plaintiff paid one installment of $30.00 on the contract price of the burner prior to its delivery and $83.98 in installation and changes; that he has never been able to make the burner perform satisfactorily as represented to him; that after it became apparent that the burner could not work satisfactorily plaintiff requested defendant to remove it, it was then agreed that defendant should remove it without prejudice to either party; that in removing the oil tank from plaintiff’s yard the defendant used water from plaintiff’s hydrant of a value of $1.00; that defendant left the hole in the yard from which the oil tank had been removed, which cost plaintiff $25.00 to refill; that plaintiff was induced to sign the contract for buying the burner upon the representation made by defendant that his fuel bill would be reduced twenty per cent and that the burner would furnish sixty pounds of working steam for use in the plant; that the same machine was installed in the City Hall and in Randon’s Cleaning an'd Pressing Shop, both of which were giving satisfaction; but that while plaintiff’s coal bill was $32.00 per month, his bill for fuel oil for use in defendant’s burner ran as high.as $68.00 per month, and plaintiff learned since that defendant’s machines were not installed in either of the above places; that plaintiff’s, damage amounts to $239.94, which he claims from defendant.

The defendant admitted that execution of the contract .of lease and that the burner was removed from plaintiff’s premises without prejudice to either party, and in accordance with the contract which authorized him to resume possession on plaintiff’s failure to pay the installments of rent; that the burner was fit for the purposes intended by the lease; that if the plaintiff did not get results therefrom, it was due to his want of skill in the installation and use of the burner, and to defects in his own apparatus to which he connected the burner.

Further answering, defendant alleged that the plaintiff paid the first installment of $30.00 but failed to pay the next one maturing September 20, 1924; that defendant repossessed himself of the burner on January 21, 1925; that for the rental of said burner while it remained in the possession of plaintiff defendant is entitled to $132.00, subject to a credit of $30.00, with interest and attorney’s fees; that he is also entitled to recover the cost of taking back the burner amounting to $94.42.

He therefore claims in reconvention $94.42.

In order to adjudicate upon the rights of the parties it is necessary to determine the character of the contract declared upon by both the plaintiff and the defendant. The contract reads as follows:

“This agreement, made this -9th day of September, 1924, between Samuel,B. Stewart, of the city of New Orleans, party of the first part, and W. C. Bohanon, residing at 1806 St. Roch avenue, pressing shop 1805 Spain street, New Orleans, La., party of the second part, witnessetli:
"The said party of the first part hereby leases unto the said second party for the term of 16% months from the date hereof, upon the promises and conditions hereinafter set forth, the following described property, viz.:
“One combustion fuel oil burner with accessories, less automatic feature. Also one 1000-gal. tank for storage of fuel oil; also 20 feet 2-in. black pipe. No installing or connecting in this price; the entire apparatus is guaranteed to fire the present boiler to sixty pounds steam using fuel oil for fuel. In consideration thereof, said second party covenants and agrees to pay to said first party the sum of $495.00 as rent for the use of said property, during said term the same to be payable as follows: The first installment to be $30.00, due and payable on the delivery, and installment of $30.00 on the 20th of every month during the term. * * * It is further covenanted and agreed that in case of default in any of the payments of rental above provided for, the whole amount of rental above provided for shall at once become due and payable and suit may be brought thereon for same. Should this contract be placed in the hands of an attorney for collection, 20 per cent fees are to be paid. Any rental past due to bear 8 per cent interest until paid. It is further agreed that in case of any default in the payment of said rental, the said first party may enter upon the premises where said property may be and take away the same by forcible possession if necessary. * * * It is further expressly understood and agreed between the said first party and the said second party that should the said second party carry out all the covenants herein contained to be carried out by him and pay the said first party the full amount of the rent herein stipulated when the same falls due, the said second party shall have the right to purchase from the said first party all the property hereby leased for the sum • of one dollar ($1.00), upon receipt of which the said first party agrees to deliver a good bill of sale to the said second party for said property.
(Signed) “SAM B. STEWART',
“W. C. BOHANON.”

Similar contracts have been made by dealers in sewing machines and pianos. By Act 62 of 1877, extra session, p. 102, the Legislature enacted that such contracts should be considered contracts of sale.

It is not the name which the parties give to a contract which fixes its character. Their common intention must control rather than the literal sense of the terms. C. C., 1950. So, also, the construction put upon it by both or by one with the assent of the other. C. C. 1956.

The syllabus in Long vs. Sun Co., 132 La. 601, 61 South. 684, reads as follows:

“The law looks beyond the mere terms used to describe a transaction to the substance of the transaction. The designation of a contract as a ‘sale’ will not make it such, where it is apparent that the parties were making a lease.” 24 S. E. 147.

In this ease the defendant, in two le^te^i addressed to the plaintiff, spoke of the “burner which we sold you”.

In the case of Seelig vs. Dumas, 48 La. Ann. 1494, 21 South. 91, the court said, on p. 1499:

"In the opinion heretofore rendered by us we adopted defendant’s construction of the contract between plaintiff and Theresa Hamilton that it was one of sale. We reached that conclusion from the fact that possession had been given ' to Theresa Hamilton, from the large amount payable weekly, which, viewed from the standpoint of the contract, being a lease, would be out of proportion to the value of its use, and from the clause in the act by which, on default of any payment as agreed, the whole value of the furniture as mentioned in the annexed promise of sale ($5000.00) would be considered due.”

In the contract before us the value of the property is fixed at $495.00, payable in sixteen and a half monthly installments of $30.00 each, or $360.00 a' year, out of proportion to the value pf the property, and the failure .to pay one monthly installment to cause the maturity of all the others. By this clause the defendant could have sued the plaintiff for $460.00 rent on his failure to pay the first installment, could have seized and sold the burner to satisfy his judgment, although the plaintiff would not have enjoyed the possession and use of it. This can be done under the contract of sale but not under a lease.

In the case of Holcomb vs. Theodora, 1 La. App. 445, a contract very similar to the one before us was treated as a sale.

There is nothing in the Doulut-Rush case, 142 La. 443, opposed to these views.

The defendant testifies that the burner was “sold on a lease”.

The French ■ commentators throw no light upon the subject. They seem to conclude that every case depends upon its own facts. 18 Baudry-Lac., p. 15, S. 17.

We have, therefore, come to the conclusion that the contract under consideration is one of sale. Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 193.

In accordance- with the decision of the Supreme Court, this court' has repeatedly-passed upon the liability of vendors.

In Hirstus vs. Capital City Auto Co., No. 7420, this court said:

“Unless warranty be expressly waived, the vendor warrants the thing sold as fit for the purpose intended. Fee vs. Sentell, 52 La. Ann. 1957, 28 South. 279. It is not incumbent Upon the buyer in such case to seek out, allege and prove the particular and underlying cause of the defects which make the thing sold unfit for the purpose intended; particularly when that thing is a complicated piece of machinery; it is sufficient if he alleges and afterwards proves that as a fact such defects exist. On the contrary, it is for, the vendor in such cases to show that the defects were such as the buyer knew or might have discovered by simple inspection. Otherwise, we should have the quaint result that the buyer must give the thing an elaborate and thorough examination in order to show that the defect was not discoverable by a simple inspection, or start an expert investigation into the condition of the machine in order to establish the self-evident fact that it did not run.” Roses vs. Patorno, 2 La. App. 292; Blackner Rotary Pump Co. vs. Rantz Engineering and Machine Works, Inc., 1 La. App. 290; Hawley Down Draft Furnace Co. vs. Southern Chemical & Fertilizing Co., 51 La. Ann. 914, 25 South. 470.

A case very much like the one under consideration is Holcomb vs. Theodora, quoted supra.

The evidence is that the burner did not furnish sixty pounds of steam “with the machines working” and that in order to work plaintiff required sixty pounds; the burner would furnish the sixty pounds of steam only when the machine was idle; when at work it would drop to 40.

The contention of the defendant is that under his contract the entire apparatus is guaranteed to fire the present boiler to sixty pounds steam only when the machine was idle. That may be the letter of his contract, but not the spirit. If plaintiff’s business required a 60-pound pressure to do his work, a burner that would not produce that amount of steam at that time was worthless to him. He did not need the steam while at rest; it was then useless to him and defendant knew that.

Defendant contends that the burner was not properly installed. But it was installed under blueprints furnished by defendant and under the direction of an employee of defendant; plaintiff complained to the defendant who attempted to remedy the trouble; the factory sent an agent who also tried but failed, aftér suggesting and making several changes; the defendant knew how many machines the plaintiff was to operate with this burner; he inspected everything; the plaintiff was to operate six pressers with the boiler and the defendant knew it, and .he undertook to furnish a burner for that purpose; the defendant never went to plaintiffs’ shop after the installation of the burner.

After the case had been tried and submitted, the trial judge, on motion of plaintiff, ordered the case reopened to hear the testimony of a newly discovered witness, “reserving to the defendant to also offer additional testimony”.

The defendant objected to this proceeding.

We see no objection to the action of the judge. It has always been the jurisprudence that the granting of a new trial was within the discretion of the trial judge whenever the ends of justice would be subserved by so doing. He may do so on motion of parties in interest or even ex-officio. V. La. Dig., p. 533.

Act 247 of 1908, p. 388, has consecrated this jurisprudence.

If the court can order a new trial of the whole case, he may reopen it for the purpose of hearing additional evidence on a particular branch of the case. But we do not think that the plaintiff is entitled to the full amount he claimed. We shall allow him the following items:

Installation ......................................$ 18.75

Pipes ....... 7.64

Electricity ________________________________________ 18.73

Digging hole ......................... 30.00

Filling same .................................... 25.00

G. E. Meyer, 8 hrs. at 70c________ 5.60

Cash paid ................ 30.00

$135.72_

It is therefore ordered that the judgment herein be reduced from two hundred and thirty-nine and 94-100 dollars to one hundred and thirty-five and 72-100 dollars with five per cent per annum interest from April 2, 1925, till paid, and as thus amended that the judgment appealed from be affirmed, the plaintiff and appellee to pay the costs of appeal and the defendant and appellant the costs of the lower court.

Judgment amended and affirmed.


text:
    No. 9272
    Orleans
    JACOB FALLO, INC., v. DURR
    (April 12, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Obligations—Par. 78, 80, 87.
    “A contract should not be so construed as to render important expressions meaningless. If the ambiguity is attributable to one party, it should be dispelled in the sense most favorable to the other.”
    2. Louisiana Digest — Obligations—Par. 76, 83.
    Where conflicting clauses or sentences in a contract of agency compel the elimination of one as against the other, the contract should be given that construction which was most probably the intention of the parties.
    Appeal from Civil District Court, Parish of Orleans, No. 133,159, Division “E”. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Jacob Fallo, Inc., against Charles Durr..
    There was judgment, for plaintiff and defendant appealed.
    Judgment reversed.
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellee.

      W. W. Wright, -of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiff claims commission as a real estate broker for having procured, as he alleges, a purchaser for defendant’s property under a written contract reading in part as follows:

“New Orleans, June 15, 1920.
“I hereby grant you for the period of twenty days from above date, and thereafter unless this agreement is revoked by thirty days’ written notice' delivered to you personally, exclusive right to sell for me the following described property, etc.”

There was judgment for plaintiff awarding him commissions as. claimed. Defendant has appealed. .

The execution of the contract is admitted by defendant, but he alleges as a defense to the suit that the contract of the plaintiff had expired when defendant, through another agent, sold the property to the same party whom plaintiff claims to have secured as a purchaser of the property. It is further contended by defendant that the document when signed by him contained no provision regarding the extension of the contract beyond the twenty days therein stipulated; that he specifically refused to give the plaintiff authority to act as his agent for a longer period than twenty days fropi date of the contract and that in compliance with this particular understanding the document was altered by striking or erasing therefrom in pencil, the printed words reading: “And thereafter unless this agreement is revoked by thirty days’ written notice delivered to you personally.”

Defendant further avers that no copy of the document was given him’ and that after the original was- signed and sur? rendered to plaintiff that plaintiff rubbed out the pencilled-erasure referred to, thus causing the contract to read as first above quoted. Fraud in this respect is charged against the plaintiff. It is finally averred:

"That in any event the contract contained an impossible condition, as the life of the contract was for twenty days only and,' therefore, the plaintiff had notice of its termination at the time the agreement was executed.”

While the record contains- extensive and uncontradicted testimony regarding the drafting of the contract, as well as contemporaneous erasures claimed by defendant, and although the document itself presents to the naked eye some indications that the printed words, though probably erased in pencil, were subsequently restored to clear reading after defendant’s surrender of the documents, we are of the opinion that a correct determination of the issues arising in this case is not dependent upon the proof of fraud as alleged.

The first- sentence in the written contract, to-wit: “I hereby grant you for the period of twenty days from above date”, are patently inconsistent with the sentence immediately following, and which defendant claims was erased before he signed the contract. The two sentences or clauses are wholly incompatible. Had the period of agency, to-wit: “Twenty days”, granted by the defendant as indicated by the first sentence been more than thirty days, that is for two or more months, the clause supposed to have been erased would have had some significance and would have doubtlessly governed and fully expressed the limitation of agency about which the parties intended to contract.

Under the rule of construction indicated by this court in the case of Bahns vs. Carriere, 13 Ct. of App. 290, we are of the opinion that the contract under consideration and containing, the. ambiguity already noticed should be construed against the plaintiff, whom the evidence shows was the party framing the document under consideration.

It is plain that the life of the contract did not extend beyond twenty days from date. It follows, therefore, that the contract must be held to have expired on July 5, 1920. The evidence in this case shows that the plaintiff, through its predecessor. The firm known as “Fallo & Short”, did not receive an offer for the purchase of defendant’s property until July 7, 1920,- at which time the ultimate purchaser offered, in a letter written to Fallo & Short, to buy defendant’s property for $14,000.00, and that the writer limited the time for the acceptance of this offer to “July 12 at noon”. The contract of agency having expired at the time this offer was submitted to Fallo & Short and refused by the defendant, (the amount offered being $3000.00 less than stipulated in defendant’s contract with plaintiff), it cannot be said that there were any contractual relations whatever existing between the parties to this suit at the time that defendant ultimately sold the property through another agent on July 26, 1920. The purchaser of defendant’s property testifies that she had some dealings with the firm of Fallo & Short, but that long prior to her purchase made through another agency, she had refused to deal further with the plaintiff. Be that as it may, the fact that the contract sued upon had expired at the time of the ultimate sale on the date last noted defeats plaintiff’s claim to any commissions.

It is therefore ordered that the judgment appealed from be set' aside and reversed and that there now be judgment for defendant, Charles Durr, and against Jacob Fallo, Inc., dismissing its claim with costs in both courts.