text:
    No. 3116
    Second Circuit
    WISE v. VAN SNIDER
    (May 20, 1931. Opinion and Decree.)

      J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellant.
    Goff & Goff, of Arcadia, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for the sum of $746.43, alleging that at various times he had advanced to defendant sums of money to the amount of $103.03, and at various times had permitted defendant to check against his account on the First National Bank of Arcadia and the Bank of Bienville to the amount of $435.15; that said checks were signed with the names of plaintiff and defendant; and that he paid the board and lodging of defendant from July 1, 1925, to March 15, 1926, amounting to $208.25. The first of said money claimed to be due was advanced October 11, 1924, and the last on June 12, 1926. The claim is set up in detail, giving dates and amounts.

Defendant excepted to the capacity, legal authority, and right of plaintiff to sue, and to the jurisdiction of the court to hear the said cause, alleging in said exception the following reasons:

“(a) That she has recently become twenty-one years old; that the plaintiff, W. H. Wise, is her step-father and her co-tutor with her mother as tutrix; that they have had control of her person and property as such tutrix and co-tutor, have never filed any account of the tutorship, or otherwise settled with her, as their ward, and plaintiff has no right to sue her on any contract or obligation until he has so filed said account of the tutorship and made settlement with her.
“(b) That a tutor or co-tutor has no right to make any contract or agreement with his ward until after a final account is filed and full settlement made with the minor for whom he is tutor or co-tutor and the plaintiff has no right of action against her at this time, and his suit is premature until such settlement is made.
“(c) That the relationship of v.ard and tutor exists between plaintiff and defendant and all contracts and agreements made before the termination of the tutorship by final account and discharge of the tuior and co-tutor are null and void, and no suit can be maintained.
“(d) That all' suits and legal proceedings between a tutor and his ward, until after a final accounting is made and the tutcr discharged, must be brieught i.i the probate court in the tutorship proceedings, and the District Court has no jurisdiction to try an ordinary suit on contract between a tutor and his ward until after s-uch final accounting and discharge of the tutor from his trust.’’

The exception was sustained by the lower court, and plaintiff prosecutes this appeal.

The record discloses that defendant was born on June 20, 1904, and that plaintiff is her stepfather and her co-tutor. It is admitted that the tutrix and co-tutor or neither of them have ever filed any account of the tutorship or otherwise settled with their ward. The itemized statement shows that $215.20 of the money claimed t,o have been advanced by plaintiff was advanced at a time before the defendant became of age; that is, prior to June 20, 1925.

Article 361 of the Revised Civil Code makes it clear that every agreement which may take place between tutor and minor shall be null and void unless the same was entered into after the rendition of a full accounting and delivery of the vouchers, the whole being made to appear by the receipt of the person to whom the account was rendered ten days previous to the agreement. The jurisprudence is in accord with this wise provision. Rist v. Hartner, Tutor, 44 La. Ann. 430, 10 So. 759, and cases cited therein.

It is therefore clear that such an accounting is a condition precedent for the validity of any agreement between the tutor and his ward in whatever form it may be entered into, and that it is not until such accounting has been rendered and adjusted that the fiduciary relations between tutor and ward really cease. The tutor could have no contractual relations with his ward until after the settlement, as provided by articles 361, 1790 of the Revised Civil Code.

This being true, we come to the question in the case. Is the law applicable to the tutor or tutrix likewise applicable to the co-tutor? We think it is. Act No. 18 of 1882, which is now article 255 of the Revised Civil Code, reads as follows:

“When the family meeting shall retain the mother in the tutorship, her second husband becomes of necessity the co-tutor, who for the administration of the property subsequently, to his marriage, becomes bound in solido with his wife, and his estate shall be legally mortgaged as a security for that responsibility, from the day of his marriage; provided, the evidence of such mortgage against the said ec-tutor be recorded, according to the law now regulating the registry of mortgages-against tutors, before the proceedings of the family meeting can be homologated; and provided further, that if said registry is not .so made, then the tutrix and her husband shall come under the provisions of the preceding article.”

This article of the Code puts on the co-tutor the same responsibility and liability as the law places on the mother and natural tutrix. He is- bound in solido with his wife, and his property is legally mortgaged and is security for his responsibility, the same as that of his wife, the natural tutrix.

In the case of Manuel v. Deshotels et al., 160 La. 652, 107 So. 478, it was held that the co-tutor was a necessary party plaintiff in an action brought by his wife on behalf of her minor child. We are convinced that the law applicable to the natural tutrix is, likewise applicable to the co-tutor, and the exception was properly sustained, for the reason that no account had been filed by the co-tutor or his wife, the natural tutrix, as required by law and no settlement had in accordance with the law. The fiduciary capacity still existed between plaintiff and defendant at the time he alleges that he advanced her money and paid her bills, and the law will not permit a tutor or co-tutor to claim against his ward any amount paid out in excess of the revenues of such ward in the absence of judicial authorization. Any claim made against the ward in excess of her revenues will be considered as rejected. In re Duplechain’s Estate, 168 La. 428, 122 So. 280.

There is no allegation or claim that any of said money was advanced or paid out on judicial authorization: The judgment of the lower court is correct, and it is therefore ordered, adjudged, and decreed that the judgment be affirmed, with all costs.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4041
    Second Circuit
    KRIVOS v. SIMMONS ET AL.
    (May 20, 1931. Opinion and Decree.)
    George Wesley Smith, qf Rayville, attorney for plaintiff, appellant.
    W. D. Cotton, of Rayville, attorney for defendants, appellees.
   McGREGOR, J.

Smith Flour and Feed Company, engaged in a mercantile business at Delhi in Richland parish, secured a judgment against Roy - Simmons in Madison parish in the Sixth District Court. Mrs. Birdie Krivos, a resident of the state of Mississippi, is the holder and owner of a chattel mortgage note for $500, executed and granted by the said Roy Simmons on a Chevrolet coupe owned by him in Madison parish. This chattel mortgage is in perfect legal form and was duly .recorded in the chattel mortgage records of Madison parish. In ah effort to collect its judgment, Smith Flour and Feed Company secured a writ of fieri facias in Madison parish and had the sheriff to seize this automobile. After this seizure, and upon an investigation of the chattel mortgage records of Madison parish, it was discovered that plaintiff in this suit, Mrs. Birdie Krivos, held a duly recorded chattel mortgage against the Simmons automobile as above stated. There was nothing to do but to promptly release the car from seizure. Subsequently, Smith Flour & Feed Company had the clerk of the Sixth District Court in Madison parish issue an alias writ of fieri facias addressed and sent to the sheriff of Richland parish in the Fifth District Court. - After receiving this writ, the sheriff of Richland parish was informed that the defendant, Roy Simmons, was in the - town of Delhi with the automobile, and he promptly seized it under the writ in his hands-. The seizure is recognized as legal and valid by all parties concerned and no attack has been made on it. As soon as Mrs. Krivos, the holder of the chattel mortgage in Madison Parish, learned that the automobile had heen seized in Richland parish she employed counsel at once to take the necessary steps to protect her interest and to have her lien on the automobile recognized as superior to that of the Smith Flour & Feed Company. She had a certified copy of her chattel mortgage sent to Richland parish and recorded in the chattel mortgage records in the courthouse at Rayville in the Fifth District Court. A suit was then filed by her at Rayville in the Fifth District Court in which Smith Flour & Feed Company, Roy Simmons and the sheriff of Richland parish were made defendants.

. The chattel mortgage note was past due and unpaid at the time of the seizure.-of -the automobile in Richland parish. Plaintiff’s petition sets forth the facts of the chattel mortgage and the seizure of the automobile practically as we have stated them. It is alleged that the defendant, the Smith Flour & Feed Company, had actual knowledge of the existence of the chattel mortgage and of its recordation in Madison parish, and that because of this knowledge. it was bad faith on its part to seize the automobile in Richland parish where it had not been protected by the recordation of a copy of the chattel mortgage. The legality of the seizure is -not attacked. On the contrary it is recognized as being valid, for the object of the suit is to have plaintiff’s chattel mortgage lien recognized as being superior to defendant’s lien arising out of the seizure under the writ of fieri facias. Plaintiff prays that the sheriff be ordered to. retain in his possession out of the proceeds of the sale of the automobile under the writ of fieri facias issued out of the Sixth District Court of Madison parish, a sufficient amount >to pay and satisfy her debt of $500, with interest and attorney’s fees and costs of court. She prays further that upon final trial of the case in the Fifth District Court in Richland parish there be judgment in her favor, recognizing and decreeing her lien and privilege by virtue of her chattel mortgage to be superior in rank to any lien and privilege on the said automobile arising from the seizure under the writ of fi. fa. issued out of the Sixth District Court of Madison parish. The suit was brought in the form of a third opposition and an order was signed by the clerk of the Fifth District Court of Richland •parish allowing it -to be filed and served as such and directing the sheriff to' hold in his hands out of- the' proceeds of the sale of the automobile the sum of $500 with interest, attorney’s fees and costs. All the defendants waiye citation’ and acknowledge 1 service of the suit. An exception .of no cause or right of action was filed by Smith Flour & Feed Company. This exception was sustained by the lower court and from this judgment the plaintiff is prosecuting this appeal. [

The law, Code of Practice, art. 397, provides that third oppositions “must be made before the court which has granted the . order of seizure,”- but no objection was raised by any one on account of the suit being brought in the Fifth District Court of Richland parish instead of in the Sixth District Court of 'Madison parish. The exception of no cause or right of ac: tion is leveled at the fact that the seizure under the writ of fi. fa. was made prior to the - recordation of a 'copy of the chattel-mortgage in Richland parish, and that, therefore, -taking the petition as’ true, -the plaintiff’s - lien by virtue of hex chattel • mortgage is inferior to the lien arising from the prior seizure. Plaintiff and appellant cites us to no law or authorities to substantiate her position. It is her contention-that Smith Flour & Feed Company knew that she had a chattel "mortgage on the seized automobile in Madison parish, and - that because -of -that "knowledge it. was ’ precluded from seizing it anywhere outside of that parish. Counsel for plaintiff stresses the fact that section" 2 of Act No. 198 of 1918 (the chattel mortgage law) "provides that:"

“In order to affect third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof, shall be recorded in the office -of .the Recorder of . Mortgages in the parish in which the mortgagor, is a resi- ; dent.” (Boldface type ours.) '

—(Sounders-- position ’in--its- final •’analysis ’ is that, if a third person has information that a- chattel mortgage has been executed in a given parish, he is bound by it, even though it may not be a notarial act and may not have been recorded at all. Sec-' tion 2 of the act must be read and interpreted in connection with section 4 of the same act, and also with Act No. 215 of 1910 (the registry act). Section 4 of the chattel mortgage law plainly provides that in order for a chattel mortgage to have any effect whatever as a lien it must be filed -for recordation. So that the most that section 2 of the act can mean is that if, through error or inadvertence, the act which punports to be a chattel mortgage is not a notarial act but is recorded, a person ■ who had actual knowledge of the intent and effort to grant a chattel mortgage could not take advantage of the. fact that the act was. defective as a notarial act.. Anybody else could take advantage of- • this fact and defeat the lien. In addition to the provision of section 4 of the chattel mortgage act, Act No. 215. of. 1910 (the .registry act) provides that all acts or instruments- - -of writing which import mortgage -or privilege shall be - effective from the date of filing for record. In the case of Booth Motor Company, Inc., v, Gamburg, 9 La. App. 60, 118 So. 854, 855, this court said:

“The benefits to accrue under the chattel - mortgage law do not come -into existence unless and until the act of mortgage is .filed , for record.”

. It has been definitely held that Act .No. 215 of 1910 .(the. registry act), applies equally to chattel mortgages as to other acts. ' Where ' the recordation of any " act is necessary to give it life its existence before recordation can have no effect whatever, regardless of anyone’s - knowledge of it. A may sell his property to B,' and" if B is negligent about having his deed recorded, A may again sell it to C and C’s title will be perfect if he records it first, even though he may have known all aoout 'the transaction with B. The same thing is true of mortgages, both chattel and real. Failure to record is fatal in all cases. In the case of Soniat v. Whitmer, 141 La. 235, 74 So. 916, 917, the court said:

“* * * the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative— let us hope forever.”

It is admitted that the chattel mortgage in question was in full force and effect in Madison parish. We have discussed it as fully as we have with reference to its original execution and recordation in that parish because of plaintiffs dependence upon the expression in section 2 of the chattel mortgage act with reference to the effect of a chattel mortgage on third persons without notice. It is apparent that section 2 deals only with the mortgage and its effect in the parish where the property is situated at the time of its execution and in the parish in which the mortgagor is a resident. So that all reference to third persons without notice in section 2 must apply to third persons either in the parish in which the property is situated or in the parish in which the mortgagor is a resident. As to its effect in other parishes we must look to section 5 of the act, which provides:

“* * * and to .preserve such mortgage against third persons in such cases, it shall be the duty of the mortgagee to have a copy thereof recorded in the iparish or parishes to which said removal is permitted.”

In the case of Wilson v. Lowrie, 156 La. 1062, 101 So. 549, 550, the Supreme Court said:

“Section 5 provides that the mortgagor shall not move the property mortgaged from the parish where said mortgage is given without the written consent of the mortgagee designating the parish or parishes to which same may be taken, and to preserve such mortgage against third persons in such cases it shall be the duty of the mortgagee to have a copy thereof recorded in the parish or parishes to which said removal is permitted.
“It is thus as clear as language can make it that the mortgage does not follow the property when the- property is removed into a parish in which the mortgage has not been recorded.” (Boldface type ours.)

Now, it is conceded that plaintiff’s chattel mortgage was recorded in Richland parish, after the automobile had been seized and advertised for sale under the writ of fieri facias issued out of the Sixth .District Court of Madison parish. Under the wording of the • citation from the case of Wilson v. Lowrie, quoted above, her mortgage did not follow the automobile wherever it went from parish to parish. While it was in Richland parish it was free from the execution of a chattel mortgage in Madison parish. We have just seen that the mortgage could have no effect as a lien, even in Madison parish, before the recordation, regardless of anyone’s knowledge or notice, and since the recordation in Madison parish can have no extraterritorial effect, and since the mortgage does not follow the automobile out of a parish, it must be held that the mortgage, although recorded in Madison parish, can have no effect in Richland parish, regardless of anyone’s knowledge of the same. It might be that if the act failed in its notarial character, but was recorded in Richland parish before the seizure, the seizing creditor would fail if he had actual knowledge of the intent of the parties to execute a chattel mortgage.

Section 5 of the chattel mortgage act provides:

“It shall be unlawful for a resident of any parish to purchase the movable property described in Section 1 from any nonresident of such parish, without first obtaining an affidavit from- the non-resident that there is no mortgage on the property, nor any money due for the purchase price thereof; and the purchaser, who shall buy the above referred to movable property, without having obtained the said affidavit, shall be liable to the creditor for the debt secured by the property.”

The fact that the law provides this penalty is conclusive of the statement that the sale in such case would be good. This provision of the law would not be needed if the chattel mortgage followed the property without recordation.

If fraud had been alleged and proved in this case it might be good, for it has been said that fraud “cuts down everything.” If the seizing creditor had fraudulently and illegally taken this car across the line in order to seize it the seizure would be illegal. But in this case no fraud is alleged, though the expression “bad faith” is used. The seizure is considered valid and legal. No effort is made to set it aside. The only object of this suit is to rank plaintiff’s lien ahead of defendant’s, and in this action she recognizes defendant’s seizure as legal and valid and free from fraud.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is affirmed. It is further ordered that the plaintiff pay all costs of both courts.


author: WEBB, J.

text:
    No. 3325
    Second Circuit
    W. B. SMITH & CO. v. LOWE
    (May 20, 1931. Opinion and Decree.)
    P. E. Brown, of Arcadia, attorney for plaintiff, appellant.

      Goff & Goff, of Arcadia, attorneys for defendant, appellee.
   WEBB, J.

In'this action plaintiff, W. B. Smith & Company, a corporation, seeks to have a sheriff’s deed which purports to transfer to it an undivided pne-tenth interest of H. D. Lowe in and to all - of the property belonging to the estate and succession of Charles Lowe, deceased, and especially in the S% of the SW% of the SW^i, of NWy4, section 22, township 17 north, range 8 west, reformed so as to. substitute for the land described the Wyj of SW% and SWy4 of NW%, of section 28, township 17 north; range 8 west.

The sheriff’s deed was made in execution of a proceeding in rem, or attachment proceeding by plaintiff against H. D. Lowe, defendant, who was alleged to have been an absentee, in which the return on the writ shows that the property seized was the same as described in the sheriff’s deed, which was also' the same as described in the advertisement of t?he sale.

Plaintiff, alleged, however, that the estate or succession of Charles. Lowe did not own the land described in the deed, but that it did own the WYz of SWy4 an(! swy4 of NW% of section 28, and that the sale of the interest of H. D. Lowe in the estate and succession transferred the interest of H. D. Lowe in the land belonging to the estate and succession of Charles Lowe.

In answer to the action to reform the sheriff’s deed, defendant attacked the judgment rendered in the attachment proceedings on numerous grounds, as well as the sale made thereunder, and prayed that plaintiff’s demands be rejected; and on trial judgment being rendered in favor of, plaintiff, as demanded, defendant appeals.

The evidence does not indicate that the land in section 28 was actually seized or sold, and we gather that plaintiff bases the right to have the sheriff’s deed reformed on the proof that Charles Lowe, father of defendant, owned the land in section 28 and did- not own the land in section 22, and the record showing the seizure of the interest of defendant in the estáte or succession of his father.

It is conceded that the right of an heir in a succession, an incorporeal right, is subject to seizure and sale (Art. 647, Code Prac.; Noble v. Nettles, 3 Rob. 153; Mayo v. Stroud, 12 Rob. 109; Dearmond v. Courtney, 12 La. Ann. 251; Boisse v. Dickson, 31 La. Ann. 749), and assuming that the land in section 28 was an asset of the succession of Charles Lowe and that defendant had an interest in the succession which was properly seized and sold (which implies that the succession was not closed, Billeaudeaux v. Manuel, 159 La. 146, 105 So. 256; Medicis v. Medicis, 155 La. 171, 99 So. 27), we do not think that' the sheriff’s deed can be refoi’med, so as to include in the description of the property seized and sold, property of another character, such as the interest in lands which may have belonged to the succession of Charles Lowe, or defendant, H'. D. Lowe, which the record does not indicate was seized, advertised or sold.

Without considering the questions raised relative to the validity of the judgment and sale, and under the assumptions, as stated, we are of the opinion that plaintiff would have the right to have the succession administered and take the residuary-interest of H. D. Lowe in the succession (Boisse v. Dickson, supra); and any rights which plaintiff may have under the sale will be reserved to him, as' well as the right of defendant to interpose any defenses to the action which may be brought by plaintiff to determine its rights under the sheriff’s deed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and plaintiff’s demands rejected at its cost, reserving to the parties the rights referred to above.


text:
    No. 4019
    Second Circuit
    BROWN PAPER MILL CO., INC., v. FISHER, TAX ASSESSOR, ET AL.
    (May 20, 1931. Opinion and Decree.)
    (See also, 171 La. 206, 130 So. 44.)
    Shotwell & Brown, of Monroe, attorneys for plaintiff, appellee.
    Harry Fuller, of Winnfield, Percy Saint and R. A. Viosca, of New Orleans, and V. M. Mouser, of Columbia, attorneys for defendants, appellants.
   McGREGOR, J.

Plaintiff brings this suit for the reduction of its tax assessment for the year 1929, in the parish of ■Caldwell. On • April 1, 1929, it was the owner of several thousand acres cut-over, denuded pine land which it valued at $5 per acre for assessment purposes. Some time prior to April 1, 1929, it made a regular return of its property to the assessor in due form and properly sworn to. Between the date of this return and April 2, 1929, it acquired 880 acres more of the same kind of land, and on April 2, 1929, wrote a letter to the tax assessoro and apprised him of the fact, giving a detailed description of the land and asked that it be added to its assessment at $5 per acre. This, letter, however, was not sworn to. Instead of assessing plaintiff’s land at $5 per acre, as they were returned by it, the tax assessor listed the land at $6, and in addition thereto undertook to assess the standing timber on the land separately at the sum of $15,690.

Within the time and in the manner provided by law, plaintiff appealed to the Louisiana tax commission and to the board of equalization of Caldwell parish for relief, with the result that the land was reduced to $5.50 per acre. When it could not secure all the relief sought, plaintiff brought this suit to compel the reduction of the assessment to the figure named in its original return made to the assessor.

On trial in the lower court, there was judgment in favor of plaintiff, fixing the asssessment at $5.25 per acre on 66,556 acres, or $349,419. The defendants have appealed from this judgment, and plaintiff has answered the appeal and prayed that it be amended by reducing it to the figure prayed for in its original petition in the suit.

The only question really presented in this case is the fair valuation of plaintiff’s lands for purposes of taxation. It is true that in their brief counsel for defendants stressed the fact that the letter of April 2, 1929, which adds 880 acres of land to the list included in the regular return, was not sworn to, and that the assessment on that land cannot be reduced by any judgment rendered in this case. This is not important. If the letter is disregarded entirely, 880 acres would have to be deducted from plaintiff’s assessment, for there is no evidence whatever in the record as to the description of plaintiff’s land to be assessed or as. to the acreage, except what is found in plaintiff’s petition and the list of lands attached to its returns and this letter of April 2, 1929. The defendants offer no testimony whatever in regard to the assessment, except certain deeds to portions of plaintiff’s lands for the purpose of showing the prices paid, and extracts from the assessment rolls of 1927 and 1928, showing that the plaintiff’s cut-over lands were assessed at $6 per acre. They never offered the assessment roll of 1929, however, to show the description, acreage, or assessment. Plaintiff offered this assessment roll of 1929, covering its lands, but it was never placed in the record, so that the only way the court could arrive at the assessment is to take it from plaintiff’s petition and its returns made to the assessor, and to include therein the lands described in the letter objected to.

While defendants objected strenuously to the admission of this letter, no possible harm can be done by its admission. The only possible effect of its absolute exclusion would be the elimination of this 880 acres from plaintiff’s assessment. There is no evidence anywhere that this land is assessed at all to plaintiff, even though it is willing to pay the taxes on it. On the contrary, in the absence of the assessment covering plaintiff’s property, the presumption would be that it is not assessed. Plaintiff in its petition admits that it should pay taxes, for 1929 on 66,556 acres, but in its recital of what the assessment roll contained, it enumerates only 65,886 acres. It requires this additional land to bring the acreage up to what plaintiff admits it should be assessed with. But aside from all this, the minutes of the court show the following entry on January 15, 1931:

“Defendants withdraw objection set out in paragraph No. 2 of its answer to the failure of plaintiff to timely file a sworn rendition by April 1, 1929, of the property described in said paragraph No. 2, in so far as said objection applies to the assessed valuation of said property.”

The said paragraph 2 of defendants’ answer particularly describes the lands described in plaintiff’s letter of April 2, 1929, so it would seem that defendants pressing this objection in their brief is superfluous, as they appear to have withdrawn the entire paragraph in so far as it affects this suit. In their brief, counsel for defendants in referring to the 880 acres, say:

“It is, therefore, respectfully submitted that the lower court erred in reducing the assessment of the property herein-above described to any extent whatever; that plaintiff should be condemned to pay all taxes levied against said described property together with interest, penalties, attorney’s fees and costs.”

In view of the admission found in the minutes of the court, we do not see how the defendants can further urge this objection. The lower court appears to have ignored it and we do the same. So that, as we have already said, the only point at issue in the case is the fair valuation of the 66,556 acres of plaintiff’s lands for assessment purposes.

During the years 1927 and 1928, plaintiff owned practically all of the land involved in this suit and it made its return to the assessor showing its value at $5 per acre, but each time the assessor raised it to $6, and plaintiff paid the taxes on that basis. In 1929, plaintiff protested against this raise and succeeded in getting it reduced to $5.50; and it was not satisfied even with this reduction and brought this suit to have the value fixed at $5.

The bulk of the land assessed to plaintiff in 1929 was bought by it from the Louisiana Central Lumber Company in 1926 for $6.12% per acre. The same lands were offered to it about a year before for $5, and it refused to buy them. But in 1926, it had a special reason for increasing its acreage at once, so, in order to buy the land without delay, it agreed to the increased price. Even though it paid this price not- only for this large tract, but for other similar adjacent tracts, during the same period, it insists in this suit that the actual fair value of the land is not over $5 per acre. To substantiate its claim, it produced a number of witnesses, some of whom were officers and employees of the plaintiff company, and some were disinterested parties. They all testified uniformly that the land in question was not worth over $5 per acre. One of these witnesses was J. E. Hanna, assessor of Ouachita parish. He testified that plaintiff’s lands in Ouachita parish were assessed as follows:

14,562 acres at $5 per acre.
17,912 acres at $4 per acre.

Mr. W. N. Reynolds an independent dealer in pulp wood, who was reared in Caldwell parish and is thoroughly 'familiar with plaintiff’s holdings in Ouachita and Caldwell parishes, testified that the Caldwell parish lands should not be valued at over $5, and that the lands in Ouachita parish were more valuable than that in Caldwell.

The evidence in the case is voluminous. The plaintiff called eight witnesses, but it would be useless to enumerate all of them or to discuss the testimony of each. They uniformly agreed that $5 per acre was a fair valuation for the land, taken as a whole.

Defendants called only one witness, the assessor, one of the defendants. In addition to his testimony, there were offered numerous. deeds to show that plaintiff had paid more than $6 per acre for practically all of its lands. Based on these deeds, the assessor contended that he was justified in the first instance in assessing the land at $6, and that the value of $5.50 fixed by the Louisiana tax commission should not be disturbed by the court.

The fact that land sells for a certain price at one time is not conclusive proof that it will sell for that price again. It is a matter of common knowledge that assessments of real estate are not regulated entirely by the purchase price paid at any one sale, and particularly is this, true when the sale took place three years before, as is true in the present (case. The fact that plaintiff, under peculiar circumstances in 1926, paid more for the bulk of their land in Caldwell parish than they are willing to admit that they are now worth, and that since that time they have bought a few isolated tracts at about the same price, is not sufficient proof of the fact that the land would have sold for that price in 1929. The real test laid down by the courts for the actual cash value is. “the price in cash for which the property could be sold, free of all encumbrances, otherwise than at forced sale.”

Sometimes the courts prefer to brush aside opinion evidence in matters of land values and rely solely on acts of sale covering the land in controversy, as well as adjacent lands. But in all cases, it is profitable to know the circumstances surrounding the sale. It is evident that plaintiff was willing to pay an inflated price for this land for business purposes.

It is fundamental in our system of taxation that assessments must be uniform to the greatest possible degree. One of the best ways to' determine values of land is to find the value of similar lands in the same community. In nineteen separate assessments, picked at random and covering 19,138 acres of cut-over land in Caldwell parish for the year 1929, the assessment was exactly $5 per acre. Six of these, cohering 13,566 acres, were tracts of land belonging to the Louisiana Central Lumber Company, the company from whom plaintiff bought the bulk of its holdings for $6.12%. It is neither fair nor just to assess the plaintiff more than the rest of thé owners of similar lands in the same parish. The record discloses that there are a number of instances in which landowners sold only a part of their cut-over land to plaintiff. That which they retained was assessed at $5, while that which they sold to plaintiff w,as assessed at $6, and reduced by the Louisiana tax commission to only $5.50.

In his testimony the assessor stated that if he could have done so, he would have assessed the small landowner at only $3 per acre on cut-over lands, and at .the same time would have assessed the plaintiff at $6, because of.the fact that in the future plaintiff’s lands would become more valuable for paper mill purposes. The law does not sanction such discrimination. In assessing every other landowner in Caldwell parish, except plaintiff, at $5 per acre on cut-over land, the assessor demonstrated absolutely that he thought that that was a fair value for that character of land. His action with reference' to those landowners speaks louder than words. Plaintiff’s ownership of these lands does not enhance their value. The Constitution of 1921, in article 10, sec. 1, says:

“* * * All taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax. * * * ”

In view of the overwhelming testimony in favor of the plaintiff and in view of the fact that all other owners of cut-over, denuded pine land in Caldwell parish are assessed at only $5 per acre, plaintiff’s lands should be assessed for the same.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, amended by reducing plaintiff’s assessment to $5 per acre on 66,556 acres of land, and, as thus amended, it is affirmed. The cost of appeal to be paid by the defendants.


text:
    No. 3046
    Second Circuit
    J. B. COLT CO. v. ROBINSON
    (May 20, 1931. Opinion and Decree.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendant, appellant.
   WEBB, J.

This is an action to recover judgment against defendant for a purchase made by his wife, in which the defense interposed was that the purchase was made without the knowledge or consent of defendant, who appeals from a judgment in favor of plaintiff, as demanded.

There was some conflict in the evidence relative to whether or not defendant authorized the purchase by his wife, but the evidence conclusively established that the property was purchased for and inured to the benefit of the community, and that the husband with knowledge of the purchase had accepted the property and installed same in a building owned by the community and occupied by him and his wife as their residence.

It is apparent that if defendant did not authorize his wife to make the purchase, he ratified same, and we are of the opinion that the judginent holding him liable as head, and master of the community for the purchase price was correct (Standard Mfg. Co. v. Dupuis, 6 La. App. 476; Brook-Mays & Co. v. Riles et al., 12 La. App. 178, 125 So. 475; Denekamp v. Heisler et al., 12 La. App. 471, 126 So. 447), and the judgment' is affirmed, at appellant’s 'cost.


author: McGRE'GOR, J.

text:
    No. 3340
    Second Circuit
    SLEDGE v. LOUISIANA HIGHWAY COMMISSION ET AL.
    (May 20, 1931. Opinion and Decree.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellant.
    C. O. Dupont, of Baton Rouge, attorney for defendants, appellees.
   McGRE'GOR, J.

This is a suit by the plaintiff, C. H. Sledge, against the Louisiana Highway Commission and the Police Jury of Bienville parish for damages growing out of the taking of a right of way across a five-acre plot of land belonging to plaintiff in the town of Castor. The amount claimed is itemized as follows:

I. .95 acre of land appropriated and used as a right of way in building said road, at $250 per acre_______$237.50
2. 4 rolls net wire for rebuilding fence (at $10.50 per roll)---------------- 42.00
3. 2 spools barb wire for rebuilding fence (at $3.90 per spool)________ 7.80
4. 135 fence posts for rebuilding fence (at .15 each)....................... 20.25
5. Contract for labor in building fence ..................................................... 12.50
6. Damage due to shape, position, and size of the two pieces or parcels of land that the said tract of land was left in by constructing the said road across the said five and a half acre tract.......................— 228.50
Total ........................................................$548.55

A preliminary default „ was granted against the Louisiana Highway Commission on May 25, 1927, and was confirmed on May 30, 1927. On the next day, May 31, the Louisiana Highway Commission filed a motion for a new trial on the ground that its attorney had prepared and mailed to W. D. Goff, district attorney, an exception of no causé or right of action on May 10, 1927, and that it was not received by him until May 26, 1927, on account of the flood conditions prevailing at that time in this state; that the court was not open from that date until May 30, 1927, the day on which the plaintiff’s judgment by default was confirmed; that the said district attorney could not- be present on that day because he had to be in Shreveport in attendance on the Court of Appeal. The court took the motion under advisement and did not decide it until the next term of court on September 28, 1927. On that day the motion was sustained and a new trial was granted. Plaintiff objected to this ruling on the ground that under the provisions of the Code of Practice, article 558, the court had no authority to carry the motion over through the summer vacation. On this same day the answer of the Louisiana Highway Commission was filed. It denied any indebtedness to the plaintiff. In connection with its answer it filed an exception of no cause or right of action. The police jury filed an exception of no cause or right of action on May 23, 1927, and on March 7, 1928, it filed a plea of estoppel and its answer, which denied owing anything to the plaintiff. The answer of the Louisiana Highway Commission set out that under its arrangement with the police jury all rights of way were to be furnished to it free of charge by the police jury and that plaintiff was aware of this fact. The answer of the police jury set forth that the plaintiff had agreed orally to accept a deed to the abandoned right of way of the old road in lieu of the new right of way across his property and that, therefore, he was estopped from claiming compensation; that it could and would have secured a free right of way elsewhere but for this oral agreement with plaintiff.

The case was tried on March 7, 1928, and on April 3, following, judgment was rendered for plaintiff against the Louisiana Highway Commission for $82.55, the cost of fencing claimed by plaintiff. The exception of no cause or right of action filed by the police jury was sustained, but in spite of this ruling, the police jury, was ordered to execute a deed to the plaintiff for the right of way of the old road. Prom' this judgment both the plaintiff and the Louisiana Highway Commission have appealed.

OPINION

Counsel for plaintiff in his brief insists that the default judgment signed on May 30, 1927, should be sustained because of the fact that under the law, Code of Practice, article 558, the court should not have carried the motion for a new trial over through the summer vacation. The record does not disclose that either party mad'e any effort to have the motion passed on before the adjournment of the court for the summer vacation. This is a right that the Code of Practice, article 558, grants to all. parties to a suit. But when it is not exercised the court does not abuse its discretion in ruling on it at the beginning of the fall term. In view of the allegations set forth in the motion the court very properly sustained it and granted the new trial.

The right of way crossing the plaintiff’s land contained approximately .95 of an acre. The average value of this land was satisfactorily proved to be about $137.50 per acre. At this rate the right of way would be worth $130.63, and plaintiff is entitled to judgment for that amount. Under its agreement with the police jury the Louisiana Highway Commission was to receive the right of way free of charge and it, no doubt, will find a way to have the police jury reimburse it for whatever sum it may have to pay on account of this judgment. There was no obligation on the part of the Louisiana Highway Commission to 'build a fence on each side of the highway across the plaintiff’s land. The only right of action that the plaintiff would have against the commission ■ is provided by the following provision of section 27, Act No. 95 of 1921 (Ex. Sess.):

“If any improvement of the land owner, or any crops upon the land, are damaged or destroyed by the location of such highway, then such owner may recover additional compensation for the actual injury or destruction of such improvement or crops.”

No damage that comes within the provision of this act was proved and so none can be granted.

The exception of no cause or right of action filed by the police jury was properly sustained and, therefore, no judgment could be rendered ordering and directing it to sign a deed to the right of -way of the old road bed. It is doubtful whether the police jury would have the right to grant a deed to this property to anyone. The law makes the necessary disposition of this abandoned road.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled; and that there be judgment in favor of the (plaintiff against the Louisiana Highway Commission for the sum of $130.63, with legal interest thereon from judicial demand, and all costs of both courts..


author: ELLIOTT, J.

text:
    No. 620
    First Circuit
    LAWRASON v. RICHARD
    (June 9, 1930. Opinion and Decree.)
    (June 30, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Granted by Supreme Court.)
    (May 26, 1931. Judgment of the Court of Appeal Affirmed.)

      Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.
    Fred G. Benton, of Baton Rouge, C. W. Kernan, of- Baton Rouge, Bond, Curtis & Hall, of New Orleans, and Porterie & Bordelon, of Marksville, attorneys for defendant, appellant.
   ELLIOTT, J.

An automobile belonging to, and while being driven, by, Eugene Richard, Jr., and in which Sam Mathews Lawrason was riding, struck against the western end of the bridge which spans the Comite river on the Greenwell Springs road leading out of Baton Rouge, with the result that said Lawrason was badly injured. He claims of the defendant, Richard, the sum of $15,000 as damages on account of his said injuries. The plaintiff, Lawrason, alleges:

That he was riding in the car as the guest of said Richard. That the accident occurred at about 1 o’clock p. m. at night. That the night was dark and rainy, the road and bridge slippery.

That the collision was due to the excessive and reckless speed at which the defendant was driving under said conditions.

“That the crash of said automobile into the railing of said bridge and the resulting injuries to your petitioner were due to no fault, carelessness or negligence of your petitioner, but the same are and were due solely and entirely to the gross fault; carelessness and negligence of the defendant who was operating his car at a dangerous and excessive rate of speed, on a dark rainy night on a road with which he was not familiar.”
“That defendant was careless and negligent in driving at a dangerous and excessive rate of speed on a dark anct rainy night.”
“That defendant was careless and negligent in failing to keep his car under control and in failing to drive it at a moderate rate of speed, so as to enable him to stop the car in an emergency.”

There was judgment in the lower court in favor of plaintiff for $12,000. Defendant has appealed.

The judgment appealed from was. signed on January 6, 1930. This appeal was taken January 7, 1930. When the appeal was called in this court on March 3, 1930, it was represented to the court by J. Wilton Jeansonne, that on January 17, 1930, the defendant, Richard, had been adjudged a bankrupt, and that he, said Jeansonne; having been elected trustee of the said Richard in bankruptcy, had .qualified as such, and should be substituted as defendant and appellant in the place of said Richard.

The showing appearing to be sufficient, and, no opposition having been made thereto, said Jeansonne was recognized as trustee of the estate of said Richard, and as such substituted as defendant and appellant in his place. The defendant, Richard, who is now represented by said trustee, urged several defenses.

Defendant admits that plaintiff was riding in his car, but contends that it was as a self-invited guest or guest by sufferance; that defendant did not willfully injure him, and is therefore not liable in damages.

Our examination of the evidence on this subject leads us to the conclusion that plaintiff was riding in the car as the guest of said Richard and at said Richard’s invitation, tacitly or expressly given. And, having found that plaintiff was the guest of said Richard, the difference which exists on the subject of liability for negligence and recklessness in driving, when the party injured is- a guest of the driver, or a self-invited guest, or a guest by sufferance, is not a question which requires consideration. For the reason stated, the authorities cited by defendant on that subject are not applicable to the situation.

Another defense is that the defendant Richard, was not familiar with the road; that the occupants of the car riding with him were familiar with it; that he therefore looked to them to warn him of danger; that he received no warning, except from Eddie Carriere, who merely said to him, “You had better be careful, this is bad,” etc., which he took to have reference to a bad stretch of road.

Eddie Carriere testifies that he warned Richard that there was a bridge ahead, that he did not know where it was, but to slow down. ' He says that defendant did make an effort to slow down, but at that time the bridge was on them.

J. Y. Sims says:

“Q. Did any one ask him not to drive so fast or was he warned in any way about driving fast?
“A. Yes, I warned him two or three times and Carriere, I think, warned him.
“Q. What did you warn him about?
“A. I just told him that the road was slippery or something to that effect, I don’t remember the exact words,—that the road was slippery and he had better not go so fast; that it was dangerous.
“Q. You told him that?
' “A. Yes.”

Henry Rightor says:

“Q. Did you hear anybody warn him about driving too fast?
“A. Yes, I heard two people.
“Q. Who made that statement, Carriere and Sims? Do you know what Carriere said?
“A. I could noc quote him, but I remember his telling him not to drive so fast, and warning him about a bridge bsing ahead.
“Q. About a bridge?
“A. Yes.
“Q. What did Sims say, if you know, not the exact language, but what the import of. it was?
“A. He told him not to go so fast, that it was so wet that night.he was liable to skid. I could not quote his words.
“Q. And you heard him warn him net to drive so fast?
“A. Yes.”

Witness further says that he could not say at what point Carriere spoke of the bridge, but that the bridge was reached in a comparatively short time afterwards. Defendant, testifying on this subject, at one place says:

“Q. Do you know how far you were from the bridge when you started to slow down?
“A. Well, I should say probably 25 or 30 feet. That is my judgment, T don’t know positively.”

In another place he says:

“Q. It was testified by Mr. Carriere that he said that, and that you immediately made an effort to check the car. Is that correct?
“A. Yes.
“Q. Did you delay an instant after you received this warning, in making an attempt to bring your car to a stop?
“A. No.”

Carriere had not said that Richard, upon being warned by him that there was a bridge ahead and to slow down, made an immediate effort to check his car. His testimony was that Richard made an effort to slow down, but that at the time he did so the bridge was on them. Just how long it was after the warning before the effort was. made is a matter as to which the evidence does not say, but our inference from Carriere’s statement is that the effort to slow down did not follow immediately after the warning; that Richard acted on the warning rather leisurely; that his compliance was somewhat tardy; and that, when he did act, the bridge was on them, and it was too late.

Defendant was driving 40 or 45 miles an hour. At 40 miles an hour the car went a mile in 90 seconds. Ninety seconds is a short space of time. If Richard, after getting within 150 feet of the curve, had made proper effort to slow down, he could have gotten his car under control sufficient to make the turn and enter the bridge with safety. We are satisfied that he was requested more than once by Sims to drive slower, warned that it was dangerous to drive so fast, and that he did not heed the warning.

It is our understanding that the Green-well Springs road is a state highway. The Act 296 of 1928, sec. 4, prohibits driving upon a highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger any person or property, etc.

Section 5, paragraph (a), provides that:

“Any person driving a vehicle on a, highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.
“(b) . Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver' of a vehicle to drive at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.”

The following rates are then specified:

“Fifteen miles an hour in traversing or going around curves * * * when the driver’s view is. obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding. * * *
“Forty-five miles an hour under all oth:r conditions.”

The evidence shows that, when the Greenwell Springs road reaches the Comite river, it turns in a short sharp curve to the left into the bridge which spans the river at that place. The bridge is only about half as wide as the road. This fact increases, the danger; the sharp curve into the narrow bridge requiring automobiles approaching from Baton Rouge to slow down so as to make the c.urv.e , and enter the bridge safely. The evidence shows that it cannot he done in the daytime driving faster than 20 miles an' hour. A witness living near by the bridge, and familiar with the place, says that one not familiar "with the road cannot, in the nighttime, driving 20 miles an hour, make the curve and enter the bridge safely.

The speed would have been all right in the daytime under good weather conditions, provided Richard had slowed down and gotten his. car under control as he neared the curve which turned into the bridge, but Richard was driving on a dark, rainy night on a road on which he had never driven before. It was raining at the time, and had been since the parties started on the trip. It is reasonable to suppose that the night was very dark, and, from the fact that it was raining, his windshield ■ was likely dimmed, so that, though his headlights' might have been burning brightly, yet his. view ahead was obstructed so that it was not probable that he could see a sharp, abrupt curve, or any other low-lying object ahead,' at a distance within which he could bring his car under control before reaching the place.

Under such conditions Richard’s speed must be looked on as reckless and dangerous, to the extent that no man feeling or exercising any care for his own safety or that of the guests in his car would have driven that fast, in the absence of any reason requiring it. It was willfully rushing ahead. without the power to control the movement. At the speed defendant, Richard, was driving, and under the conditions under which it was being done, he was willfully taking the chance that each moment might precipitate a disaster for himself and his guest. A man may do as he. thinks proper with himself, but he has no right to thus deprive a guest in his power of the safety which reasonable caution and ordinary care 'ordinarily insures, and to which his’ guest is entitled. And such right is not lost because the guest remains in the car under the conditions in which the plaintiff was situated.

Another defense is that the defendant, Richard, was not familiar with the road and trusted to others, occupants of the car, who did know the road, to post him as to danger, etc.; that plaintiff was familiar with the road, hut did not warn him nor protest the speed, etc.; that, if defendant was negligent, the plaintiff was guilty of contributory negligence, in that he did not warn defendant and protest the speed, etc.

Urging this defense, defendant says in his brief:

“Any one traversing the road, even one time, can not fail to be struck with the marked risk which is presented by the Comite River bridge. The pictures offered in evidence show beyond dispute that a wide straight road, suddenly terminates with a narrow bridge, one-half the width of the road and running- at right angles, to it, reach out across the river to the left.'
“Knowing this trap, the plaintiff calmly permitted defendant, who knew nothing about it, to drive ahead at a speed easily suggestive of the very accident which followed. If this is not contributory negligence, then there1 is no such doctrine.”

The evidence does not show that plaintiff was familiar with the road. He had been over the road and presumably the bridge in question on two former occasions. We may possibly assume that one of the previous occasions was when he was initiated into his- fraternity about a year previous to the date of the present trip, but as to when the other one was made •we' have no idea. And the weather conditions at the time of the previous trips do not appear. Two previous trips made at some time over the road was. not enough to make plaintiff familiar with it, sufficiently to know when defendant’s car was nearing the curve and bridge on the occasion in question.

His seat in the rumble, with the curtain which separated his seat from that which was occupied by the defendant buttoned down, made any- communication between' him ' and the defendant very difficult. In order for the plaintiff to have made himself heard by defendant while the car was going, it would have been necessary for him to speak loudly and raise his voice above the ordinary tone. The plaintiff could not see ahead through the curtain and darkness in the direction the car was going, so remained in his seat and said nothing to anybody in the front part of the car.

The evidence shows that plaintiff was not consulted about the driving, the speed, nor anything that the defendant was doing in so far as concerned the driving of the car.

The plaintiff had no control or author-' ity over the car, nor over the defendant, nor as to defendant’s manner and method ■ of driving. The defendant, Richard, drove as he willed and saw proper. The fact that plaintiff made no request nor protest ' ■in such a situation cannot exonerate the j defendant from responsibility because of ; his reckless disregard for prudence and care. The defendant cites many authori- i ties in his. brief as to the liability of a 1 driver to his guest, engaged in making a j trip- of the kind, to which we have not access, except as read in his brief; but the Louisiana cases which he cites, Toups v. Morgan’s La. R. R. & S. S. Co., 4 La. App. 136; Roberts v. Eason, 6 La. App. 706; Ford v. Chicago, R. I. & P. R. Co., 8 La. App. 586, and Hutchens v. Morgan, 12 La. App. 545, 125 So. 309, are not based on situations, like that which existed in the present case, and are therefore not controlling. He cites and quotes at length from Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253. In that case the court said (we quote from the syllabus):

“As a general rule, it is the duty of the driver of an automobile to maintain a speed sufficiently slow and to have such control of his car1 that he can stop within the distance in which he can plainly see an obstruction or danger ahead. But that rule does not apply to a case where a dangerous situation which the driver of the automobile had no reason to expect suddenly appeared immediately in front of .the car. \
“A person driving on a public highway, especially in an incorporated city, has a right * * * to act upon the presumption that the way is safe for Ordinary travel, even at night, and he is not required to be on the lookout for extraordinary dangers, or obstructions to which his attention has not been called”—citing authorities.

Defendant argues that the open canal across the street, on which the defendant Jac9bs was driving, a peril which he could not foresee, and the sharp curve in the Greenwell . Springs road, turning into the narrow bridge which spans, the Comite river, present the same legal situation; that defendant is not liable in damages.for 'the same, reason that JacohSi was. held not liable. We find that the present, situation is not the same, that existed , in the Jacobs case. , , ■

Banks' street on which Jacobs was driving is stated in the'opinion to be "one of the prominent thoroughfares in New Orleans. Jacobs had made inquiry as to the condition of the street before taking it, and 'was informed that it was all right. There was a way in which, if Jacobs had been familiar with the condition of the street at the time in question, he could, by careful driving, have passed around the place where he came to an open canal, but he did not see the way around, and, not being aware of the situation he followed the street, ás he supposed he had a right to do. And he did have the right to suppose that a principal thoroughfare in New Orleans did not have an open canal across it into which he might precipitate himself before he could stop. The -canal had been covered by a bridge, but the bridge' had been taken up and the canal left open, without warning signs.

The court says in the course of the opinion:

“The preponderance of the eviuence is, in our opinion, not that the speed was excessive, but to the contrary, that it was moderate.”

The court also says, same opinion:

i.-* * * ^e evidence shows conclusively that the defendant could not have avoided running into the canal, although he was going at a moderate speed when he discovered the danger.”

The presumption which favored Jacobs in the matter of the open canal on the street on which he was driving should not be made to apply to this curve in the Greenwell Springs road. A man should not drive on a country highway with which he is not familiar so fast, on a dark, rainy night, under conditions of such poor visibility that he cannot get- his car under control so as to make a sharp curve. Danger from sharp curves on country highways must be kept in mind and guarded against by the driver, and it is inexcusable fault not to do so when there is a guest in the car whose safety is imperiled by it.

Then again in the Jacobs case it is inferable that the guest was- seated on the front seat with the driver and had a full view ahead, just as the driver did. He was in a position in which he could see ahead and speak of any danger that appeared to require it. That was not the case with Lawrason; he occupied a rumble seat, from which he could not see ahead, nor could he speak to the driver, except with difficulty. Jacobs was not warned by his guest that there was danger ahead, nor requested to drive slower. Richard was warned by one guest on the front seat that there was a bridge ahead and to slow down. Another guest on the front seat warned bim two. or three times not to drive so fast—that it was dangerous. These warnings from the front seat were bound to have been heard by Richard. Carriere says that, when Richard did slow down, the bridge was on them. It is our understanding that Richard did not promptly heed the warnings, and, when he did start to slow down, it was too late.

The Jacobs case is on several important questions a supporting authority for the plaintiff. In the cases Timberlake v. Cassidy, 1 La. App. 630, and Brock v. Friend, 4 La. App. 720, we had before us situations- similar to the present. In the two cases mentioned the guest had brought an action against the driver on account of injuries received by the guest due to the driver’s reckless driving. In. each case the court, by a majority opinion, held that the driving was reckless and that the driver was therefore responsible in damages to his guest.

In the case of Whipple v. Lirette, 11 La. App. 485, 124 So. 160, 164, we considered a question of speed at night, and said, in a majority opinion on that subject:

“The latest authors say that when the driver of an automobile is blinded and cannot see objects in the road ahead of him, the speed of the car must be so slow that he can stop almost immediately.”

Thus in Churchill v. R. Co., 151 La. 726, 92 So. 314, the action was by a guest, not against the party driving the car, as in the present case, but the court said in deciding:

•“Where the failure on the part of the guest to see and protest a danger was urged, where the guest had no authority nor control over the ear in which he was riding, he was not required to keep a lookout for danger, and could rely on the driver for the discharge of that duty.”

Also in Daull v. New Orleans R. & Light Co., 147 La. 1012, 86 So. 477, 478. In that case the action was by a guest, but not against the party driving. There was. contention that the guest did not keep a lookout, did not warn the driver of the danger, and was therefore negligent. The court said on rehearing:

“But- Mis~» Cuneo was a guest in the automobile, not charged with its management, and therefore not participating in the negligence of the driver.” Young v. Luria, 154 La. 919. 98 So. 419, is to the same effect.

The cases of Robinson v. Leonard, 100 Vt. 1, 134 A. 706; McAndrews v. Leonard, 99 Vt. 512, 134 A. 710; Munson v, Rupker, Ind. App. 148 N. E. 169; Id. (Ind. App.) 151 N. E. 101; Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996; Wilmes v. Fournier, 111 Misc. Rep. 9, 180, N. Y. 860, and Ryan v. Snyder, 29 Wyo. 146, 211 P. 482, furnished us by the plaintiff, in pamphlet form, supports his contention that a guest can recover from a negligent driver under facts similar in principle to the facts in the present case.

The defendant urges that he is not liable in this case because plaintiff and himself and the other parties with them were engaged at the time in a joint adventure, that all of the parties engaged in a joint adventure are agents and participants, in whatever is done, and that no liability on account of a negligent act exists in favor of one against another.

A joint adventure is a species of partnership. Both must be based on an agreement of the parties. The difference is that a partnership is entered into for the purpose of business of a certain kind, and is to endure for all business of that kind until the parties determine otherwise, or until it is terminated as provided by law.

A joint adventure , is an undertaking entered into for one purpose only.

In this case the parties who occupied the car in which plaintiff was riding and defendant was driving and a number of others had agreed to go on a trip for a certain purpose, and, in order to accomplish the journey from Baton Rouge to Magnolia, a place in the same parish, and return, they agreed to go in the cars of those who were present with cars. But, aside from this common purpose, none of the essentials of a joint adventure existed, as defined by the law.

In Jacobs v. Jacobs, heretofore cited, there must have been contention that the plaintiff and the defendant were engaged in a joint enterprise, because the court said in the course of the opinion, on page 286 of 141 La., 74 So. 992, 997:

“Nor do we hold that the plaintiff, by accepting the defendant’s invitation to ride in the car, thereby engaged in a common enterprise or joint adventure with him in which neither would be liable to the other for an act of negligence.”

The language of the court is in point.

Defendant cites us a large number of cases from other states, to which we have not access, save the statement in his brief. In a number of these cases it was apparently held that parties going on trips of business ^or pleasure could not recover damages from each other, on account of injuries received on, the trip, as the result of the negligent act of some member of the party, on the ground that the parties were all engaged in a joint enterprise.

The plaintiff has on his part, in the same way, cited us a number in which it was held that parties engaged in a trip, something like that in which the plaintiff and defendant and their friends were engaged, were not a joint adventure, and that such trips do not come within the meaning of the law on that subject.

We have found and submit the following from Keiswetter v. Rubenstein, 235 Mich. 36, 209 N. W. 154, 48 A. L. R. 1049, note pages 1078 and 1080:

“In r°cent years there have been many attempts to charge passengers riding in conveyances of others, particularly passengers riding as guests of an automobile owner or driver, with the negligence of the driver, on the theory of a joint enterprise, but the courts have uniformly held that one merely a passenger cannot be deemed to be engaged in a joint enterprise with the driver for the purpose of imputing to him the negligence of the latter. Thus, there is no joint adventure between the driver of an automobile and one who is merely his guest, which will prevent the guest from recovering damages for injuries due to the driver’s negligence. Jacobs v. Jacobs (1917) 141 La. 272, 74 So. 992, L. R. A. 1917F, 253; Loftus v. Pelletier (1916) 223 Mass. 63, 111 N. E. 712: Schwartz v. Johnson (1926) 152 Tenn. 586, 280 S. W. 32, 47 A. L. R. 323, 25 N. O. C. A. 692. See also Wilmes v. Fournier (1920) 111 Misc. Rep. 9, 180 N. Y. S. 860.
‘.‘So, a. trained nurse hired and paid by a civic organization to attend needy patients when called upon to do so by a doctor in charge of such patient, who,” in accordance with the common custom for the different doctors to take the nurse to the case .when making calls, was riding with a doctor, at his request, to attend an out-of-town patient, cannot as a matter of law be said, to be engaged in a common enterprise with the doctor so as to prevent recovery against him for an injury due to his negligent operation of the automobile. Loftus v. Pelletier (1916) 223 Mass. 63, 111 N. E. 712. * * *
“The doctrine of joint adventure as applied to the operation of a vehicle owned by one of its occupants ought to be restricted to cases where the common right to control its operation, as correlative with common responsibility for negligence for its operation, is either clearly apparent from the agreement of the parties, or is a logical conclusion from the facts. Coleman v. Bent (1924) 100 Conn. 527, 124 A. 224. * * *
“While it is somewhat difficult to state a comprehensive definition of what con'stitutes a joint enterprise, as applied to this class of cases, it is. sufficiently accurate to say that, to impute a driver’s negligence to an occupant of his vehicle, the relation must be shown to be something more than that of host and guest; the mere fact that they have both engaged in the drive because of mutual pleasure to be derived therefrom does not materially affect the situation. Withey v. Fowler Co. (1914) 164 Iowa, 377, 145 N. W. 923.
“It is not sufficient that the passenger indicates the route, or that both parties have certain plans in common, such as a ‘joy ride’; the community of interest must be such that the passenger is entitled to be heard in the control and management of the vehicle—such as practically to amount to joint or common possession thereof (Pope v. Hapbern [1924] 193 Cal. 168, 223 P. 470; Bryant v. Pacific Electric R. Co. [1917] 174 Cal. 737, 164 P. 385); the common purpose of riding together for pleasure does not alone establish a joint enterprise (Barry v. Harding [1923] 244 Mass. 588, 139 N. E. 298, supra); there must be something more to constitute a joint enterprise; the guest must he in a situation to assume the control of, or control in some manner, the. means of locomotion (Lawrence v. Sioux City [1915] 172 Iowa, 320, 154 N. W. 494).
“The joint enterprise which will impute the contributory negligence of the driver of an automobile to one riding with him must invest the passenger with some voice in the control and direction of the vehicle, for, as the rule is founded on the doctrine of principal and agent, the passenger must be so related to the driver that the maxim ‘qui facit per alium facit per se’ is applicable. Director Gen. v. Pence [1923] 135 Va. 329, 116 S. E. 351.
“It must be shown that the occupant and driver together had such control over the automobile as practically to be in joint or common possession of it. Bryant v. Pacific Electric R. Co. [174 Cal. 737, 164 P. 385], supra.
“There should exist between the occupants a joint interest or a community of interest in the object of the enterprise, and an . equal right to direct and control the conduct of each other with respect thereto. Cunningham v. Thief River Falls [1901] 84 Minn. 21, 86 N. W. 763, 10 Am. Neg. Rep. 106, followed in Adams v. Thief River Falls [1901] 84 Minn. 30, 86 N. W. 767, 10 Am. Neg. Rep. 113.”

These authorities, seem to be in line with the text-book writers on the subject. In this case there was no joint control of the car nor in its operation. Richard had absolute control, and drove it as he willed and ’ liked. The plaintiff had no voice in the matter. In the situation under which he occupied a seat in the car, the trip was not a joint adventure. But, suppose the trip to have been such. Under our' law,' Civil Code, arts. 2315-2317, the evidence showing that plaintiff was in no way at fault, that his. injury was due entirely to the fault, wrongful act, and imprudent. driving of the defendant, Richard, the law obliges him to repair it.

The judgment appealed from is in our opinion correct.

Judgment affirmed.

ON APPLICATION POR REHEARING

The petition for rehearing contains the following statement:

“Upon its own statement of facts, the court is in error in 'concluding that the warning which was given by Eddie Carriere about a 'bridge being ahead, was given some, time before the bridge was reached and under circumstances where defendant, if he had immediately heeded the warning, had an opportunity to avert the accident. Eddie Carriere, as stated by the court, clearly testified that he warned defendant and the defendant attempted to slOwi down, but that at the time the warning was. given, the bridge was upon them and it was too late to avoid the accident. In respect to this matter, Eddie Carriere testified on page 15 of the note of evidence as follows:
“Q. You sa-y just before you reached the bridge, you warned him, that at that time you were right on the bridge? “A. I did not say that. I said I warned him and as soon as I Warned him, he made efforts to slow down, but at that time the bridge was on us.”

The answer to the question referred to was. as follows' (note testimony,-pp. 10 and 11):

“Q. Just before the automobile reached the bridge, about how fast in your judgment was it going?
“A. Just before we reached the bridge I warned Mr. Richard that there was a bridge ahead, that I didn’t know where it was, but that there was a bridge ahead and to slow down. Mr. Richard did make an effort to slow down but at that time the bridge was on us.”

The ahswer previously given was that just before the bridge was reached Carriere warned Richard that there was a bridge ahead; that he (Carriere) did not know where it was, but that there was. one ahead and to slow down; that Mr. Richard did make an effort to slow down, but at that time the bridge was on them.

Mr. Carriere, after making the statement quoted by defendant, was further questioned (note testimony, pp. 15 and 16):

“Q. How much did he slow down, between that point and the point where he struck the bridge?
“A. I couldn’t tell. There wasn’t any speedometer. That would be pretty hard.
“Q. Right from the time you warned him did he make an effort to slow down?
“A. When I warned him, he made an effort to slow down.
“Q. tie did make an effort to slow down?
“A. I wasn’t watching him, but I imagine he must have taken his foot off the accelerator.”

On page 18 the witness further said:

‘‘Q. During the course of this trip, did you say anything about the speed?
“A. The only time I mentioned the speed was when, I told him to slow down, that I knew a.bridge was coming, but I did not know where it was.”

The statement, “I wasn’t watching him, I imagine he must have taken his foot off the accelerator,” together with the other expressions of the witness and his first answer which we have quoted, tends to indicate his meaning that the slowing down was tardy and not prompt as by applying the brakes. The impression that Richard took his foot off the • accelerator indicates that che car went on under its momentum without application of the brakes. At the speed it was going its momentum kept up a speed which from that ac which it was running commenced to slacken, but not sufficient for the'exigency of the sharp turn into the bridge on a dark and rainy night. Further consideration has not changed our views. Our conclusion was correct.


author: ELLIOTT, J. PER CURIAM.

text:
    No. 617
    First Circuit
    HART v. POLIZZOTTO
    (June 30, 1930. Opinion and Decree.)
    (October 31, 1930. Question Certified to Supreme Court.)
    (December 16, 1930. See Decision of Supreme Court, Docket No. 30,954.)
    (January 26, 1931. Judgment Rendered in Accordance with Supreme Court Instructions.)
    (March 3, 1931. Rehearing Refused.)

      A. D. Danziger, of New Orleans, and Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellee.
    Borron, Hebert & Owens, of Plaquemine, attorneys for defendant, appellant.
   ELLIOTT, J.

This controversy involves a question of cost. The above numbered and entitled case, Lewis B. Hart being the plaintiff, was appealed to the Supreme Court, Hart v. Polizzotto, 168 La. 356, 122 So. 64, 68, and decided, and upon the return of the case to the lower court the plaintiff-executrix substituted for Hart moved against the defendant Polizzotto to have fixed and taxed the cost which he owed in the case, to the end that be might be compelled to pay it.

The defendant, Polizzotto, for answer to the rule, alleged that the cost which he owed had been extinguished by compensation. The plea was based on a finding of the Supreme Court in deciding the case. Mrs. Lotz, executrix, filed a plea of prescription against the debt which the defendant urged in compensation, alleging that it was barred by the prescription of five years. This plea of prescription was not, acted on in the lower court; the minutes of the lower court do not show any, and, as the lower court did not act on it, and no bill of exception was reserved to the failure of the court to do so, the question is not before us on appeal.

The lower court, acting on defendant’s plea of compensation, for written reasons filed, held that the cost in question had not been extinguished in the way claimed by Polizzotto, and rendered judgment against him, as ■ prayed for by Mrs. Lotz. The defendant, Polizzotto, appealed the case to this court. The appellee has not requested that the case be sent to the Supreme Court nor otherwise questioned the jurisdiction of this court, but we are acting on the appeal hesitatingly for the reason that the question of compensation involves an interpretation and the proper enforcement of a decision of the Supreme Court.

The question of compensation, however, has been raised since the case was decided by the Supreme Court. It was brought forward by Polizzotto in the lower court on the return of the case, for the purpose of showing that the cost, which he admits was due, had been extinguished. He relies on the following language used in the Supreme Court decision, to establish the compensation pleaded. We quote from the opinion:

"It appears that plaintiff, without the knowledge of defendant, bound himself, in solido, with others, on a continuing guaranty for $160,000, in favor of the People’s Bank of Plaquemine, which later failed. Defendant endeavored to have plaintiff relieved, as far as possible, of this contingent liability, which, to plaintiff, was a very serious one. Through his efforts and the efforts of attorneys, the matter was finally compromised so as to relieve plaintiff, on his paying approximately $7,000. Plaintiff did not have the money on hand with which to make the payment. Arrangements were made with the Iberville Bank & Trust Company to lend the money for that purpose. A note was executed in favor of the bank by plaintiff as maker, and defendant as accommodation maker, for $7,000, the two binding themselves, in solido, for the amount of the note. The four mortgage notes under consideration were then executed and delivered to the bank. About a month later, defendant having in the meantime sold the liberty bonds given him in partial payment by plaintiff, paid the note, executed in favor of the bank, upon which he was bound .as accommodation maker, and the bank delivered to him the note that he had paid, together with four collateral notes. The effect of this payment, which was with defendant’s own money, was to subrogate defendant to the mortgage notes given as collateral,” etc.

The opinion of the Supreme Court terminated the finding of facts, however, with a decree affirming the judgment appealed from. We have examined the judgment which had been appealed from, and have also looked into the issues that were before the district court, and upon which the district judge acted. The ownership of this $7,000 note was not one of the issues in the case, but it figured in the trial and was a matter which the Supreme Court considered in acting on the case, to the extent quoted ‘from the opinion.

The district court in his reasons for judgment on the rule for cost, acting on the iplea urged by Polizzotto, has this to say:

“I cannot' agree with defendant that his title to the plain note for $7000.00 referred to in his,answer was set at rest by the Supreme Court’s decision.
“The decree of the Supreme Court simply affirmed the judgment of the District Court, and decreed that the costs of the appeal should be paid by the defendant and the plaintiff in the proportion of 2/3 and 1/3 respectively.
“The note referred to was not only not mentioned by the decree of the District Court, which has been affirmed, as aforesaid, but it was not even mentioned or referred to in the pleadings in this suit, and the question whether defendant Sam Polizzotto was the owner of said note was not at issue in the case.
“Although, as stated by counsel for defendant in their brief, it is well settled that pleadings may be broadened and supplemented by evidence admitted without objection, there are limitations to that rule. Defendant’s title to the note referred to was not set up in the alternative or otherwise, either by way of reconvention or in compensation of plaintiff’s demands.
“The plea of res adjudicata is stricti juris and must be established beyond question. All doubts enure to the benefit of the party against whom it is pleaded. It is elementary that in the decree rendered, and not in the opinion pronounced, will be found the thing adjudged.”

Assuming, however, that defendant is the owner of the note for $7,000, it appears from his own testimony that he acquired same March 30, 1922, which was long prior to the death of L. B. Hart, and long prior to the filing of this suit, and, as defendant did not plead said note in compensation as a defense against the demands of L. B. Hart in this suit, or even in the alternative, as against any costs that defendant might be condemned to pay herein, we are satisfied that it is not permissible for defendant to plead said note at this stage of the proceedings in compensation as against the judgment rendered against him for costs.

The plea of the defendant in rule, seems to us to come under the reasoning of the district court, according to which, under the facts of the case and the law applicable thereto, he is not entitled to a decree holding that the costs which he owes have been extinguished in the way claimed by him.

The indebtedness of L. B. Hart to Polizzotto for $7,000 on the note mentioned is not res adjudicata under the decision of the Supreme Court, but plaintiff’s demand for costs is res adjudicata, and the amount due by defendant is conceded. Therefore the costs due the plaintiff in rule are not compensated and extinguished by the alleged indebtedness opposed to . it in the answer of the defendant.

The lower court decided the case correctly.

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

TO THE HONORABLE, THE SUPREME COURT OP LOUISIANA:

Availing ourselves of the provisions of article 7, section 25, of the Constitution, and Act No. 191 of 1898, we desire the Supreme Court to instruct us as to the proper effect which the opinion and decree of the Supreme Court should receive . on the questions of res adjudicata and compensation raised by the defendant Samuel Polizzotto in answer to a rule against him to have the amount of costs which he owes under a decree of the Supreme Court fixed and taxed against him. The suit in question is that of Hart v. Polizzotto, No. 29,409 in the Supreme Court, 168 La. 356.

Upon the return of the case to the district court, the plaintiff, Mrs. Lotz, executrix, etc., caused a rule to issue to the defendant Polizzotto, the purpose of which was to have the amount of costs which he owed, fixed and taxed against him.

In answer to the rule, the defendant, Polizzotto, contends that the costs for which he had been liable under the decree, had been paid and extinguished by compensation, taking the position that such had resulted from the opinion and decree of the Supreme Court holding that Lewis. B. Hart was legally and justly indebted unto him in the sum of $7,000 on a note which he had paid for said Hart, using his own, Polizzotto’s, money for that purpose, and that he therefore owed no costs.

The district court held against him, and on appeal to this court, the judgment of the district court was affirmed, the said judgment being reported in the advance sheets of the Southern Reporter, July 31, 1930, at page 244.

Defendant Polizzotto has applied for a rehearing and contends in his application that this court has erred as a matter of law in not giving to the opinion and decree of the Supreme Court the effect of establishing said indebtedness qn the part of Hart to Polizzotto, and incidentally furnishing the foundation for the compensation, which he urges has taken place.

The case is now pending in this court on defendant’s said application for a rehearing, and this request for instructions is made to the end that if the opinion and decree of this court, in acting on said appeal, is in error as to the effect and result of the opinion and decree of the Supreme Court, in holding against the contentions of the defendant, we pray to be so instructed so that said rehearing can be acted upon in a way that will enable us to make our decree conform to the views of the Supreme Court in the matter.

To the end that the Supreme Court may have the question raised by the answer to the said rule before it, as it was before us, and to save the time if the Supreme Court requires the record, we are having the clerk of this court attach to this application the record in question, in so far as same applies to the rule to tax costs.

Respectfully submitted,

Judges.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing, after further consideration, we became doubtful of tbe correctness of tbe views in which we affirmed the judgment of the lower court.

Instead of granting the rehearing, however, we applied to the Supreme Court for instructions. On review, that court held that both the judgments of the district court and of this court were in error, and answered that the plea of compensation set up as the only defense, was well founded and should have been sustained.

It would be the doing of a vain thing to have the case re-submitted to us merely for tbe purpose of having this court comply with the instructions of the Supreme Court. We will, therefore, ex proprio motu, enter the following decree:

It is ordered that the judgment of the lower court, as well as the original judgment of this court are both now set aside, avoided and reversed, and it is further ordered that there be judgment against the plaintiff and in favor of the defendant sustaining the plea of compensation and dismissing the plaintiff’s suit at her cost.

ON APPLICATION FOR REHEARING

Plaintiff in rule applies for a rehearing on the ground principally that a plea of prescription filed herein has not been considered by the court.

In certifying the matter involved in this ease to the Supreme Court we transmitted the whole record with the application to that court. Whether the court considered the plea of prescription or not, it sustained the plea of compensation. In our opinion, by sustaining the latter plea, by implication, it passed on the plea of prescription.

For the foregoing reasons the application for rehearing is refused.


text:
    No. 3264
    Second Circuit
    ALEXANDER HAMILTON INSTITUTE v. HOLLIS
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    Melvin F. Jobnson, of Shreveport, attorney for plaintiff, appellee. .

      Thatcher, Browne, Porteous & Myers,' of Shreveport, attorneys for defendant, appellant.
   McGREGOR, J.

On January 2, 1923, the plaintiff and the defendant entered into a written contract wherein the defendant was enrolled for the modern business course and service to be furnished by the plaintiff and which was to extend over a period of two years. This course consisted of:

1. Modern Business Text—twenty-four bound volumes, containing a digest of present day business .principles and practice—■ forwarded immediately, express prepaid.

2. Modern Business Talks—directing reading of text—two every month.

3. Modern Business Lectures—the experience of prominent business men—one every month.

4. Modern Business Problems—actual business problems, solutions to which will be reviewed—one every month.

5. Modern Business Service—:

Monthly letter on Business Conditions.

Monthly Financial and Trade Review.

Four Modern Business Reports to be selected by subscriber.

Answers to all inquiries in connection with the course.

The contract was signed by the defendant in person, and he is presumed to have read it and must be bound by its terms. The plaintiff was represented by a traveling salesman who also signed the contract and forwarded it by mail to the office of plaintiff in New York, where it was accepted, approved, and signed by its bursar. At the bottom of the contract there is a note in which is found the following stipulation: “This contract is not subject to revocation.”

Immediately upon receipt of the contract in its office the plaintiff shipped by express the twenty-four bound volumes known as the Modern Business Text, and these were promptly received by the defendant and kept by him until the following August when he returned them to the plaintiff. In the meantime the plaintiff began and continued to send to defendant (1) Modern Business Talks, two each month for two years; (2) Modern Business Lectures, one each month for two years; '(3) Modem Business Problems, one each month for two years; (4) Modern Business Service, Monthly Letter on Business Conditions, and Monthly Financial and Trade Review, one each month for two years. The Four Modern Business Reports to be selected by subscriber and answers to all inquiries in connection with the course were not sent, for the reason that the defendant admits that he never called for the Business Reports and did not make any inquiries on any subject as he had a right to do under the terms of the contract. The twenty-four bound volumes of Modern Business Text which were returned by the defendant were received by the plaintiff and held by it for the benefit of the defendant and he was so notified. At the expiration of the period of two years over which the contract by its terms was to extend and upon the failure and refusal of the defendant to pay, the plaintiff instituted this suit for the collection of $126, the balance due under the terms of the contract.

In his answer the defendant admitted signing the contract' sued on and on the trial of the case he admitted the correctness of the copy of the contract attached to the plaintiff’s petition, but denied that it was binding. He specifically alleged that he executed the contract “through error of fact bearing on a material part” of the same “through fraudulent misrepresentations made by plaintiff’s agent, one P. A. Gregory, who induced him to sign same and make payment to him in behalf of said plaintiff of the sum of $10.00.” He further specifically alleged:

“That in inducing him to sign said contract and make said payment, as aforesaid, the said Gregory represented to respondent that the said business course and services referred to in said alleged contract was one entirely different from that which was actually furnished to respondent, in that the said Gregory represented to respondent that the Modern Business Text containing twenty-four bound volumes, contained the fundamental principles and complete digest of Commercial Law, including a treatise on Chattel Mortgages, Business Contracts, Bills of Sale, and other subjects pertaining to Commercial Law; also modern principles ana methods of conducting a retail mercantile business; also a treatise a.ud discussion of modern ideas of advertising in the retail mercantile business, including the furniture business; also the management and operation of retail mercantile establishments in all phases.”

There was judgment in the lower court for the plaintiff as prayed for, and the defendant has appealed.

The plaintiff’s testimony as to the delivery of the material called for in the contract was taken by deposition in New York and is convincing. The defendant attempts to deny the receipt of the various items, but it is evident that on account of his indifference in the matter and his unwillingness to go through with the course he ignored them when they came periodically and cast them aside and did not read or study them.

The contract in question is plain and unambiguous. The study course set out and described in plaintiff’s petition is built along broad lines, and it is necessary that each individual apply it in his own way to his particular line of work. No doubt the course did not exactly conform to what defendant had in mind when he bought it, but the contract is clear and concise and speaks for itself. It specifically stipulates that it is not subject to revocation. Defendant apparently thought that he would be able to find in the course certain matters of detail that would enable him to advance and to increase his knowledge of the retail furniture business, the line engaged in by him, but this is not practicable. Those details can be acquired and mastered only by actual experience in the business, and the only benefit that can be acquired from the study course is the broadening effects obtained from studying general principles, as described in the course furnished by the plaintiff. Without a doubt, if the defendant had studied carefully and mastered all the books and pamphlets sent to him by the plaintiff, he would have been better fitted for any position in any retail mercantile business. There is no short cut to knowledge or success in any line of business. In his zeal to make a sale it may be that the plaintiff’s salesman overdrew the picture somewhat as to the simplicity of the course of study and its direct application to defendant’s business, but we cannot say that in so doing he acted fraudulently, and that, consequently, the defendant had the right to recede from the contract seven months later. One of the fundamental principles of every business is that one is firmly bound by his written contracts. Defendant is an intelligent man, and a careful reading of the contract should have convinced him that the course he was entering into was a general one, and that the I benefit he expected to derive would’ be' through the application of general business principles to his particular lihe. He should have known that plaintiff could not be bound by any verbal representations of its salesman.

For reasons assigned, the judgment appealed from is affirmed, the defendant to pay the costs of both courts.