text:
    No. 9812
    Orleans
    CALDWELL & CO. v. DESCHANEL INTERNATIONAL CORP. EAGLE ROLLER MILL CO., Intervenor
    (June 20, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Conflict of Laws— Par. 2.
    Where contract of purchase contains the stipulation that goods shall be delivered ,at shipside in New Orleans, the contract is a Louisiana contract and the vendor is entitled to a privilege on the proceeds of goods for the unpaid purchase price, although confirmation of sale was made in another state.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Caldwell & Company, Inc., against the Deschanel International Corporation. Eagler Roller Mill Company, Intervenor.
    There was judgment for defendant and plaintiff' appealed.
    Judgment affirmed.,
    Terriberry, Rice & Young, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
    Bernard Titche, for curator ad hoc.
   JONES, J.

In this suit plaintiff and intervenor, both attachment creditors, are claiming priority of privilege on the proceeds of certain flour, originally bought by the defendant from intervenor and sold by the civil sheriff here under an agreement between the parties, pending a decision on the merits of the controversy.

On December 8, 1920, plaintiff, a New York corporation, doing business in this city as forwarding agents, sued defendant for one thousand sixty-eight and 43-100 ($1068.43) dollars, amount due for forwarding a prior shipment and attached two carloads of flour then in the hands of the I. C. Railroad Co., the carrier which had brought the flour here from intervenor’s mill in Minnesota. A writ of attachment was issued on the ground of non-residence and a local attorney was appointed to represent the defendant. On January 4, 1920, this representative filed an answer denying the allegations of plaintiff’s petition on information and belief.

On April 18, 1921, intervenor, a Minnesota corporation, intervened in the suit for four thousand, eight hundred and fifty ($4850.00) dollars, the unpaid pur. chase price of the two carloads of flour and attached the same flour then in the hands of the sheriff. It prayed that its vendor’s lien and privilege be recognized or, in the alternative, if the court should hold that it had no vendor’s lien and privilege on the flour, then that its right of stoppage in transit be recognized and the sheriff be ordered to turn over to it the flour, or', as second alternative, if the court should deny both the vendor’s lien and the right of stoppage in transit, then it prayed that the contract he rescinded for non-payment of purchase price. To this petition it attached a copy of confirmation of sale of each car and copies of the drafts for purchase price of each car, which it had drawn on defendant.

In this intervention it was further alleged as follows:

(1) That defendant had not paid the purchase price and that it had notified intervenor that it was unable to do so.
(2) That said flour was sold for delivery at shipside in New Orleans and therefore the contract was governed by the laws of Louisiana.
(3) That defendant was at the time of the sale and is now insolvent.

The same curator was appointed, and on July 11, on joint motion of all parties interested, the court ordered the flour sold at public auction after five days’ advertisement. On March 15, 1924, an agreed statement of fact was filed hy plaintiff and intervenor, but defendant offered no evidence.

On April 8 plaintiff which had been served with a copy of the intervention filed an answer thereto, but defendant did not answer it. In its answer plaintiff admitted that the flour had been purchased for export and drafts drawn with bills of lading attached, as alleged, and that intervenor had obligated itself to ship and deliver said flour to the Deschanel International Corporation, P.A.S. New Orleans, a term meaning delivery on wharf in that city, hut denied either vendor’s lien, right to stoppage in transit or right to rescission of contract.

The trial judge decided that intervenor had a vendor’s privilege on the flour, because title did not pass and was not intended to pass until the flour was delivered .at New Orleans. He accordingly gave judgment for both plaintiff and intervenor for amounts claimed and ordered intervenor to be paid first. He did not pass either on the right of stoppage in transitu or the right to rescission of contract, but distinctly reserved those issues for the appellate court, if that tribunal should hold differently on the vendor’s privilege.

Prom that decision the plaintiff has appealed to this court.

The agreed facts are as follows:

On November 6, 1920, The Deschanel International Corporation of New York, hereinafter called “Deschanel”, wired to the Eagle Roller Mills of Minnesota, a flour manufacturer, hereinafter called the “Intervenor”, offering to purchase five hundred (500) hags of flour, marked “Camuri”, for shipment to New Orleans in accordance with telegram, reading:

“Enter additional order one thousand bags candeal five hundred hags Camuri one hundred ninety-six pounds immediate shipment New Orleans. Wire whether possibility shading prices.”

On November 8, this offer was replied to hy the intervenor by wire as follows:

“Telegram received, market easier today, therefore have entered additional thousand candeal at ten eighty and five hundred Camuri at nine ninety-five. Thank you.”

On November 15, Deschanel Company forwarded to intervenor a confirmation in accordance with this telegram, stating thereon:

“Confirming our wire of 11/6/20”, setting forth the terms of the sale, and providing thereon, among other stipulations, the following:
“PAS NEW ORLEANS,”
“Routing and shipping instructions will reach you directly from our shippers at New Orleans,
“Terms of payment — Acceptance draft— 60 D/D.”

On November 10 Deschanel wired intervenor, asking for prices on additional 1000 bags of Camuri, as follows:

“Wire lowest prices best delivery additional thousand bags each Candeal Camuri hundred ninety-six pound bags, shade prices utmost to enable us to confirm orders.”

Intervenor answered this wire by wire as follows:

“Subject confirmation offer additional thousand bags each Candeal ten thirty Camuri nine forty-five FOB New Orleans shipment your option within ninety days.”

The offer therein contained was accepted by the Deschanel Company, who wired intervenor as follows:

“Confirm sale thanks wire lowest after market closes today.”

Thereafter Deschanel forwarded confirmation to intervenor of sale of the 1000 bags, stating thereon:

“Confirming our wire of November 11, 1920.”
“Immediate shipment to New Orleans. Goods booked per. SS COLUMBIA, sailing from New Orleans 11/30.”
“F.A.S. New Orleans.”
“Routing and shipping instructions will reach you direct from our shippers at New Orleans.”

Also:

“Acceptance Draft 60 D/D.”

On November 8, 1920, under the contract confirmed on that date, intervenor loaded 250 bags of flour taking therefor a bill of lading to its own order, notify Caldwell & Company, who were agents of Deschanel Company of New Orleans, and that again on November 24, 1920, under the contract confirmed November 18, the intervenor loaded 250 bags of flour, taking the same kind of bill of lading. Both of these cars were shipped to New Orleans, and all (freight was paid by intervenor at the time of shipment. Intervenor after shipment of each car of goods drew a draft upon Deschanel International Corporation for the purchase price thereof, which draft read: “60 days after arrival of goods, pay to the order of Eagle Roller Mills,” and notation thereon, “Bill of lading attachde covering car.” These drafts with bills of lading attached were forwarded to Deschanel Company at New York and were accepted in accordance with their provisions, the first being accepted December 1, 1920, payable February 1, 1921, and the second December 2, 1920, payable February 2, 1921. These drafts appear in the record as Exhibits “C” and “D” respectively. Intervenor received no payment on these drafts and has never been paid the purchase price. On acceptance of the drafts, the bills of lading were surrendered to Deschanel, who forwarded them to its agent, Caldwell & Co., at New Orleans.

The flour was transported by the Illinois Central Railroad to New Orleans and Caldwell & Co., instead of obtaining possession of it on behalf of its principal, Deschanel, caused a writ of attachment to be issued against the flour on a debt due by Deschanel to Caldwell & Co. arising out of another transaction, surrendered the bills of lading to the sheriff and seized the flour in the hands of the railroad company. The bills of lading were not offered in evidence, because they had been delivered to the sheriff, but the flour was sold by consent of all parties -and the proceeds are to be distributed.

Plaintiff’s able attorney argues that the contract of sale was completed and title passed when the bills of lading, endorsed in blank, were delivered and drafts accepted by defendant in New York, on December 1, 1920, to be paid February 1, 1921, and the other on December 2, 1920, to be paid February 2, 1921, that delivery in New Orleans was merely incidental and had no legal effect«on the contract which had already been completed in New York.

In support of this contention he cites the following four Louisiana cases:

Whiston vs. Stodder, 8 Mart. (68) 95;
Bren & Son vs. Shouse, 16 La. Ann. 158;
Colt vs. O’Callaghan, 2 La. Ann. 984;
Show vs. Oakey, 3 Rob. 31.

In the first of these cases the contract was executed and completed in London, England, and the carrier became the agent of the purchaser. In the course of the opinion the court uses the following language:

“It appears by the evidence contained in the record that the insolvents were in the habit of ordering .goods to be sent them in New Orleans by their correspondents, the appellees, merchants of the city of London in the kingdom of Great Britain, who executed such orders and received payment by remittances in the usual course of trade between said places, and that at the time of the failure of the appellees, certain parcels of the goods transmitted to them, as above stated, were found unaltered in «their possession and passed into the hands of the syndics on which plaintiffs claim a privilege.”

In the brief of defendant, quoted in the report, we find the following statement of fact, which we must take as true as it is not controverted by plaintiff in his reply brief and is sustained by the above quoted extract from the opinion: •

“The goods were ordered by the insolvents; the plaintiffs accepted the order, purchased the goods, and shipped them, to the address, and upon the account and risk’ of the insolvents; and payment was to be made in England by bills of produce. It is well known that a bill remitted is not payment, unless paid or agreed to be received as payment; and produce is not payment until sold, when the proceeds are applied to the extinguishment of the debt. In every part of this business, therefore, it was an English transaction. The order from the insolvents gave to the plaintiff no right, until that order was accepted and executed in England. Their rights then became perfect.
“The reception of the goods in New Orleans was not necessary to entitle them to demand payment; for when goods are consigned under an order, the delivery to the carrier is a delivery to the consignee; the property immediately vests in him, and the goods are at his risk. In purchasing the goods from the manufacturer the plaintiffs acted in the capacity of mandataries, and in that capacity they acted in England, and the payment was also to be made in England.”

In Shaw vs. Oakey, 3 Rob. 361, defendants in New Orleans ordered goods from plaintiffs in New York to be paid for in six months. The order was received and executed and partial payments were made. The only point before the court was the allowance of interest.

In Colt vs. O’Callaghan, 2 La. Ann. 984, Colt, the plaintiff in New York, sold to O’Callaghan, the defendant in New Orleans, certain wire. O’Callaghan paid the freight and the court found that the wire was delivered in New York.

In the last case cited, Brent & Son vs. Shouse, 16 La. Ann. 157, all the parties interested resided in Kentucky and the sale was made- in that state. The court simply held that the fact that a portion of the goods were at the time of the sale in New Orleans made no difference, because movables had no sitéis.

The above analysis shows that these cases differ in the basic facts and are therefore not controlling here.

It will be noted that the offer and acceptance on each car was crystallized by a letter from buyer to seller confirming the contract and that each confirmation contained the following stipulation:

“F. A. S.- — New Orleans.
“Routing and shipping instructions will reach you directly from our shippers at New Orleans.
“Terms of payment, acceptance draft 60 D.D.”

The letters F.A.S. are explained in the Exporters’ Encyclopedia of 1922 as follows:

“The letters F.A.S. are used in making export quotations as an abbreviation of the phrase, ‘free alongside ship’. Under an ‘F.A.S.’ quotation the seller undertakes to transport the goods to main port or seaport; to store them in warehouse if necessary; to bring them alongside the carrying vessel, either in a lighter or along the dock, and to be responsible for loss or damage until such delivery is effected.”

The correctness of this definition is not disputed and it is admitted that the abbreviation “60 D/D” means sixty days from date of delivery.

The confirmation of the second order, in addition to containing the above provisions, stated:

“Goods booked per S/S Columbia, sailing from New Orleans 11-30.”

From the letter filed in evidence, marked “Intervenor 9,” written by Deschanel to intervenor, and intervenor’s reply thereto under date of November 15, marked “Intervenor 11,” it will be seen that the parties understood that all shipments were booked for sailing on the S/S Columbia leaving on November 30.

In the stipulation of counsel, it is admitted that the intervenor paid the freight on the shipments to New Orleans.

We think that all of the above provisions of the contract are conclusive that, in accordance with the terms thereof, the shipper, intervenor, was to remain responsible for the goods, was to retain control and dominion over the goods until they arrived and were delivered in New Orleans at ship side.

We are of the opinion that these contracts were Louisiana contracts, because the last steps in the completion thereof were to be performed in Louisiana. In other words, we hold that the law of the place of performance must control, although the letters of confirmation were written in New York.

In this holding we are following not only the Civil Code of Louisiana and the decisions of our Supreme Court, but also the conclusions of the best writers on “Conflict of Laws” and the decisions of the U. S. Supreme Court.

The first two paragraphs of Art. 10 of the Civil Code read as follows:

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.
“But the effect of acts passecl in one country to have effect in another country is regulated by the laws of the country where such acts are to have effect.”

Minor, in his Conflicts of Law, p. 295, Sec. 128, states this principle:

“The locus contractus of a sale is the place where the sale is finally completed. Until that time the contract is in juri. The tijle has not passed. It is not until the vendor has done everything in connection with the transfer necessary to pass title that the sale is completed. The place where the final act essential to this result is performed is the locus contractus. The place at which the order is given, or from which the order is sent to the vendor, however important to the determination of the locus contractus of an ex-ecutory contract, furnished no safe guide in fixing the place of an executed sale.”

Again, at page 296:

“It is to be observed, furthermore, in connection with conveyances and sales of personalty, that not only does the lex loci contractus govern the substantial validity of the transfer as between the parties, but it also determines the effects of the contract, and in general the interpretation to be placed upon the terms used, when an ambiguity arises touching the legal signification to be attached to them.”

And, again, at page 373, 157:

“By parity of reason, the question whether goods shipped in one state upon an order from another constitutes a sale in the former state depends upon the further question whether the parties have done every act necessary to make a binding-sale before the goods leave the former state. Thus if the consignor there delivers the goods to a carrier as the agent of the consignee, the sale is complete there; if the carrier is the agent of the consignor, the sale only becomes complete upon the delivery by the carrier to the consignee or his agent, and the place where that occurs is the locus celebrationis.”

One of the earliest cases on the question is that of Overend Gurney & Co. vs. Robinson and Olroyd, 10 La. Ann. 728, in which an executory agreement for sale was entered into in New York for shipment and delivery in New Orleans of certain goods. The court held that the sale being completed in New Orleans constituted it a Louisiana contract, and that the vendor’s privilege applied. The court stated as follows:

“But here it seems that there was only an executory contract made in New York. The goods which have been identified were not shipped by Houghwout from New York to Robinson & Olroyd, under an absolute contract of sale. They were shipped to an agent of the consignee, in New Orleans, with special instructions not to deliver them to Robinson & Olroyd, until the latter should have complied with certain specified conditions about furnishing security. The sale was therefore completed and delivery made in Louisiana, and by the law of Louisiana, the vendor’s privilege attached. There is no error then in this part of the judgment.”

In this Overend case it was incumbent upon the purchaser to give certain security in Louisiana, which was the fact which controlled the court in determining that it was the intention of the parties that this agreement should be completed in Louisiana; that title should not pass until the security was given.

In the case of McLlvain & Speigel vs. Mrs. M. C. Legare and Leon Godchaux, 36 La. Ann. 359, a contract was entered into by correspondence between the purchasers in Louisiana and the sellers in Cincinnati, under which certain boilers were to be sold and delivered to the purchaser and paid for in Cincinnati. Thereafter, the contract was modified so that the boilers were to be delivered in Louisiana, and paid for there. The court properly held that the contract, by its modifications, was an ex-ecutory contract for completion in Louisiana, and so governed by the law of Louisiana, and that except for the modifications of the terms of the agreement, it would have been a Cincinanti contract, for ■performance there, in accordance with its terms, and that the Louisiana law would not have applied.

The court said:

“Under the original stipulations, the boilers were to be delivered and paid for in Cincinnati, and would thus have become the property of Mrs. Legare before leaving that city. Under Godchaux’s stipulations they remained plaintiff’s property until delivered to and accepted by Mrs. Legare, or her agent on her plantation. Had the boilers on inspection been found not to be of the prescribed dimensions, or of the required quality of material and workmanship, the delivery and the contract would not have been completed, and the payment would have been withheld. Otherwise, if the boilers had been considered as delivered by shipment at Cincinnati, in accordance with the original stipulations.”

On this point see also Pritchard vs. Norton, 27 L. Ed. 104 U. S. Supreme Court, and Hall vs. Cordell, 1142 U. S. 116, 35 L. Ed. 956.

In this view of the case, as purchase price of the flour had not been paid, intervenor unquestionably had a vendor’s privilege on the flour and is therefore entitled to be paid first, although the bills of lading endorsed in blank by the shipper had been received in New York by the buyer and the sixty-day drafts had been accepted by him.

We do not find it necessary to pass on the fact whether title to the goods had passed to the buyer, when the goods were seized in New Orleans, because that fact is presumably admitted by intervenor when he sues the defendant as owner and only claims a privilege. See Adler et al. vs. Wolff et al., 36 La. Ann. 169.

As we have found with intervenor on his first contention, we do not find it necessary to consider either of his alternative prayers. ’ .

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 10,951
    Orleans
    CARON v. KOBER
    (July 5, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiama Digest — Courts—Par. 92.— Pleadings — Par. 8.
    The First City Court of New Orleans is a court of record and oral pleadings are not permitted therein.
    2. Louisiana Digest — Appeal—Par. 726, 727.
    When oral pleadings are permitted and testimony admitted thereunder, case will be remanded that the other litigant may have an opportunity to meet special oral defense after it is legally filed.
    Appeal from First City Court, Division “C”. Hon. W. Y. Seeber, Judge. .
    Action by Mrs. Edward Caron against Fred C. Kober.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and amended.
    P. E. Edrington, of New Orleans, attorney for plaintiff, appellant.
    Jos. Rosenberg, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This suit is brought on three checks for fifty ($50.00) dollars each, payable to cash and drawn on the City Bank Branch of the Whitney-Central Trust and Sayings Bank, made and signed by the defendant, Fred. C. Kober. Plaintiff alleges that she is the holder and owner of the checks and that the said checks were presented to the bank for payment; that payment was refused and they remained unpaid. She, therefore, prays for judgment in the sum of one hundred fifty ($150.00) dollars against the defendant.

The defendant filed an answer, unsworn •to, and written on the back of the citation consisting of the words, “General Denial’’. No exception was taken by plaintiff to this form of answer, although under the Pleading and Practice Act the answer should have been a formal one, duly sworn to. The case was then regularly fixed for trial on March 11th, 1927, the defendant being present in person and unrepresented by counsel.

The plaintiff testified that the checks were given to her as a manual gift by her father and that she presented them to the bank for payment and that payment was refused.

The defendant was then asked by the court if he had any defense other than the general denial, to which counsel for plaintiff objected; that no special defense could be urged and that no evidence could be introduced in support thereof.

Notwithstanding this timely objection, the lower judge permitted ■ the defendant to make an oral supplemental answer, take the witness stand and testify that the checks were given in a gambling game.

Thereupon the court rendered judgment in favor of the defendant, dismissing plaintiff’s suit.

Clearly this was error in the court below, because the First City Court is a court of record and oral pleadings are not permitted by law. Louisiana Constitution of 1921, Article YII, Section 92. This fact alone requires remanding of the case that plaintiff may have an opportunity to meet this special defense. For above reasons the case is remanded.


author: REYNOLDS, J.

text:
    No. 2924
    Second Circuit
    WOODS v. MELLER AND UNION INDEMNITY CO.
    (June 28, 1927. Opinion and Decree.)
    (July 15, 1927. Application for Rehearing.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant —Par. 159, 159a.
    Where an employee, in an accident growing out of and in the course of his employment, has the nail and flesh on the ends of his first and second fingers torn off and a joipt of his first finger widened so as slightly to crook the end of the finger, which temporarily totally disables him to do work of any reasonable character; and where after the termination of the temporary total disability the employee is able to perform similar work to that he was doing when injured and at a higher daily wage than he had been receiving, he will be entitled to compensation under clause (a) of subsection 1 of section 8 of the Workmen’s Compensation Law (Act No. 20 of 1914 and amendments) as for an injury producing temporary total disability to do work of any reasonable character, but not also under clause (e) of said subsection.
    Landwehr vs. American Can Co., 5 La. App. 350; Morrison vs.. U. S. Fidelity & G. Co., 5 La. App. 427; Parker vs. Letón Gin Co., 15 La. App. 727; Alexander vs. Magnolia Pipe Line Co., 5, La. App. 672; Fuller vs. Robinson Const. Co., 5 La. App. 241; Bell vs. Merchants Cotton Oil Co., 2 La. App. 564; Black vs. La. Central Lumber Co., 161 La. 889, 109 South. 538.
    2. Louisiana Digest — Master and Servant —Par. 160e, 160 i. — Insurance—Par. 170.
    Where a contract of ‘ indemnity between an insurer and an employer provides that the former “will pay promptly tp any person entitled - thereto, under the Workmen’s Compensation Law, and in the manner therein (provided, the entire amount of any sum due and all installments thereof as they became due,” that such obligations are direct promises of the insurer to the employees, that the contract is made for the benefit of and is enforceable against the company by any such employee in his own name in a proceeding against the insurer alone or jointly with the employer, an injured employee may maintain an action for compensation against his employer and the insurer in solido.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s Note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Jhdge.
    Action by G. B. Woods against A. Meller and Union Indemnity Company.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    Herndon & Herndon; Barnette & Roberts, of Shreveport, attorneys for defendants, appellants.
   STATEMENT' OF THE CASE

REYNOLDS, J.

Plaintiff sued defendant Meller under the Workmen’s Compensation Law for $8.00 a week for four hundred week,s beginning October 28, 1925, or, in the alternative, for $4,000.00, with legal interest thereon from that date, under the general law of master’s liability for injury to his servant by reason of the master’s negligence.

He alleged that while engaged in drilling for water for defendant Meller in the State of Texas on October 28, 1925, at a daily wage of $8.00 under a contract of employment between them entered into in the State of Louisiana his left hand was caught in a revolving chain, while he was in the act of pulling out a clutch lever and the first phalanx of the third finger of the hand torn or severed from the hand, the second finger badly bent and made crooked and weak, and the entire hand injured to such extent as to render it unfit and unsuited for the duties of his occupation of well driller.

He further alleged that the accident and consequent injury were the direct result of the absence from the rig with which he was doing the work of a bracket and that the absence of the bracket rendered the rig defective; that he had frequently called the attention of the defendant Meller to the absence of the bracket and that he omitted to have the bracket replaced and that he even refused to permit plaintiff to replace it.

Defendant Meller filed an exception to the jurisdiction of the court ratione materia* insofar as the action was pitched upon the Workmen’s Compensation Law, alleging that both the contract of employment and the accident to plaintiff took place in the State of Texas and that the laws of the State of Louisiana have no application to the alleged cause of action.

The exception was overruled.

Defendant Meller also filed an exception of no right and no cause of action to plaintiff’s alternative alleged cause of action.

This exception also was overruled.

, Plaintiff filed a motion for judgment under the Workmen’s Compensation Law on the face of his petition on the ground that the legal delays had expired without an answer being filed.

This motion was denied.

Defendant Meller, reserving his rights under the exception to the jurisdiction of the court ratione materiae, answered denying liability and alleging that plaintiff was intoxicated at the time of the accident and that he wilfully and intentionally injured himself.

Plaintiff then filed a supplemental petion in which, after reiterating and adopting all of the allegations and prayer of his original petition, in which he alleged that under a contract of indemnity between defendant Meller and the Union Indemnity Company the latter had agreed to indemnify the former for whatever compensation he might be liable to pay his employees; that this contract-inured to the benefit of plaintiff and that he was entitled to judgment against ' both defendant Meller and the Union Indemnity Company in solido for the compensation sued for.

He further alleged that defendant had paid to him $84.00 on account of compensation and also furnished medical aid to the value of $29.00 and that in consequence he was estopped to deny his liability to plaintiff under the Workmen’s Compensation Law.

He further alleged that the injury to him occurred in the State of Texas and that the rights and liabilities of himself and defendant Meller are governed by the laws of that State; that under the laws of the State of Texas an employer of three or more workmen in any occupation other than those of domestic servant, farm laborer or ranch laborer, is compelled to elect whether he will be governed by the Employers’ Liability Law of that State or not and that defendant Meller had failed to elect whether he would come under the operation of the law or not.

That under the laws of the State of Texas an emplqyer who does not come under the operation of the Workmen’s Compensation Law is deprived of the defenses of contributory negligence, negligence of a fellow servant, and assumption of the risks of the employment in an action against him by his employee.

And he prayed for judgment against the defendant Meller and the Union Indemnity Company in solido as prayed for in his original petition.

Defendant Meller, reserving his rights under his exception of no right and no cause of action to plaintiff’s alternative demand, answered that plaintiff was estopped to prosecute his suit under his alternative demand because he had obtained from the court judgment that he was entitled to prosecute his suit under the Workmen’s Compensation Law of Louisiana.

of Louisiana.

Further answering, he denied that plaintiff was injured as claimed and denied that a bracket was missing from the drilling rig or that the rig was defective, and alleged that plaintiff was experienced in the use of the drilling rig and that if it was defective he assumed the risks incident to operating it in such condition.

Defendant Union Indemnity Company filed an exception of no right of action to the petition.

This exception was overruled.

Thereupon the Union Indemnity Company answered admitting the existence of the contract of indemnity between defendant Meller and it but denying liability to plaintiff thereunder for the reason that it only covered liability for injuries happening to defendant Meller’s employees in the State of Louisiana.

On these issues the case was tried and judgment was rendered in favor of plaintiff and against both Meller and the Union Indemnity Company in solido for compensation, apparently under the Workmen’s Compensation Law of Louisiana, for $20.00 a week for eight weeks with legal interest on each installment from its maturity until paid, and also for $3.00 a week for an additional one hundred weeks, with legal interest on each installment from its maturity until paid; less a credit of $84.00 already paid.

From this judgment both defendants have appealed.

Plaintiff answered their appeals , and asked that as to the judgment for $20.00 a week for eight weeks that it be affirmed and that as to the judgment for $3.00 a week for one hundred • weeks that it be increased to $8.00 a week for one hundred weeks.

Counsel for defendant Meller, in brief, say:

“Defendant found no objection to that ©art of the judgment ■ allowing plaintiff eight weeks’ compensation at $20.00 "per week, but did object to the additional one hundred weeks at $3.00 per week”; and they urge no other • objection to the judgment. Therefore, quo ad him, the only question to be decided by the court is-whether the award of compensation for one hundred weeks at $3.00 a week in addition to the eight weeks at $20.00 a week was correct or not.

Doctor J.' C. Pau testified that he was the first physician that treated plaintiff’s injury and that he found — •

“a laceration of the first and third fingers; the nail was jerked off the first finger and the third of the left hand. That was the extent of the injuries, as I remember.”
“Q. Explain, doctor, just the condition of his hand when . you first saw him?
“A. Well, it was lacerated and torn; that is, those three fingers; and the nail was torn off the forefinger, and the soft tissues were cut off the end.
“Q. How far up in the hand did that injury extend ?
“A. Well, it was just those fingers, and I expect the whole length of the finger? was bi’uised and' lacerated.”
“Q. Doctor, in examining the injury, could you tell whether or not the tissues and muscles were injured by the accident?
“A. Well, yes, they were.
“Q. Well, what about the bones?
“A. Well, at the time I did not think there was any injury to the bone, and I told him that at the time.
“Q. What about your opinion at the present time?
“A. Well, he has, I think, the second joint of the second finger, that was on one side at the time, but I didn’t think the finger was injured.
“Q. Now, that widening of the joint or bone there shows up when you look at the hand?
“A. No, it don’t; still, the finger there is -crooked in the joint.
“Q. Could you tell whether or not, of your own knowledge, this crookedness of the finger was caused by the accident?
“A. I could not say that it was.
“Q. It is nothing unusual for a man to have a crooked finger?
“A. Well, I expect the most of us have crooked fingers.
“Q. Of course, with the ordinary experience with a wound of this kind, how long is it usually before a man is able to go back to work?
“A. With lacerations and contusions and bruises like that, as shown on Mr. Wood’s hand; it would probably be two months anyway. Of course, as to th$ nails, it would take time to grow the nails back.
“Q. You know of no reason why it should not be as good as it ever was, do you?
“A. Well, as far as my diagnosis of the case, absolutely none.
“Q. And he should have been able to go back to work at his regular occupation within six or eight weeks?
“A. Yes, sir; that was my idea at the time, as to the lacerations of the wound.
“Q. And the lacerated wounds did heal as you expected them to?
“A. Yes, sir; they healed.
“Q. Properly?
“A. Yes, sir.
“Q. Now, Mr. Woods claims in Article 6 of his petition that his finger or a portion of his finger is missing. That is, the third finger is severed from the hand. (Witness examined the hand of plaintiff.)
“A. No; it is there.
“Q. He has the end of his finger there?
“A. Yes, sir.
“Q. Examine the hand again and state whether or not you know of any reason why his hand should not be as good as it ever was?
(Witness examined plaintiff’s hand.)
“A. There perhaps will be a permanent deformity of the end of the first and third fingers or fourth finger and the ring finger, which ought not to hinder him from work. The second finger there is, I think, bone there — I did not notice that at the time I made the examination.
“Q. Now, that, of course, is merely a bend?
“A. Yes, a bend I mean — not a bone.
“Q. Now, from the nature of your examination and the injury, would you say that that was caused by the injury?
“A. I don’t know; I did not detect it at the time.
“Q. To what extent is that finger crooked?
"A. I don’t know; not very much.
“A. Yes, sir; it is hardly perceptible.
“A. Yes, sir; it is harly perceptible.
$ Hi *
“Q. Now, examine Mr. Woods’ right hand as well as his left hand, and see if there is any difference between the hands?
“A. Well, that finger is crooked on the left hand. That’s about the only thing I see. I think the ring finger is a little shorter than the other.
“Q. That is natural, is it not?
“A. Well, I expect so.”
The plaintiff, G. B. Woods, testified:
“Q. Mr. Woods, you state in your petition that the • first phalanx of your third finger, left hand, is torn and severed from your hand. Now, show the court your finger.
(Witness shows finger to court.)
“A. The tip of the finger is there.
“Q. The phalanx is still on the finger, is it not?
“A. None of the bone is torn off, but the fiesli and the whole nail was stripped back to here. The bone was not pulled off, if that is what the phalanx is.
“Q. The flesh and skin are on the end of the finger now?
“A. They have grown back.
“Q. The finger is intact at this time?
“A. I would not call it; it is shorter than the other and shorter than it previously was.
“Q. How much shorter?
“A. Probably a quarter of an inch, at least.”

The evidence makes clear that plaintiff was temporarily totally disabled by his injury and that he was entitled to compensation during such temporary total disability.

The trial court fixed the duration of his temporary total disability at eight weeks and in our opinion this fixing was correct.

The plaintiff testified:

“Q. What is the highest wages that you have been getting since the accident, Mr. Woods?
“A. I was paid $10.00 a day for fifteen days.
“Q. How long did that last?
“A. Fifteen days.
“Q. What have you been paid since?
“A. That is the last work that I did.”

From which it appears that since the termination of his temporary total disability plaintiff has been able to earn more than he was earning before he was injured notwithstanding the injury.

Plaintiff, therefore, is • not entitled to compensation under clause (e) of subsection 1 of section 8 of the Workmen’s Compensation Law as for a serious permanent impairment of a physical function, and the allowance by the. District Court of compensation for one hundred weeks at $3.00 a week under this clause as for a serious permanent impairment of a physical function was erroneous.

This brings us to the defenses set up by the defendant Union Indemnity Company, namely:

That the petition does not state facts sufficient to make the laws of the State of Louisiana applicable, but on the contrary show that the contract of employment was entered into and the injury occurred ip the State of Texas, and that there was neither allegation nor proof that the defendant Meller was insolvent or that an execution upon a judgment against him for compensation had been returned unsatisfied.

The first contention cannot be sustained for the reason that the policy of indemnity provides in paragraph 6 thereof that—

“This agreement shall apply to such injuries so sustained by reason of the business operations described in said declaration which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with, or in relation to, such work places.”

And, in paragraph 1(b) that the insurer will indemnity defendant Meller.

“against loss by reason of the liability imposed upon .him by law for damages on account of such injuries to such of his said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America * * * ”

Nor can the second contention be sustained, for the reason that it is also provided in the policy of indemnity, paragraph D, that—

“The. obligations of paragraph 1(a) foregoing are hereby declared to be the direct obligations and promises of the company to any injured employee covered hereby * * * and to each such employee * * * the company is hereby made directly and primarily liable under said obligations and [promises. This contract is made for the benefit of such employees * * * and is enforceable against the company by any such employee * * * in his name* * * at any time and in any manner permitted by law, whether claims or proceedings are brought against the company alone or jointly with his employer * * * ”

The obligations of paragraph 1(a) are — • “To pay promptly to. any person entitled thereto, under the Workmen’s Compensation Law, and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due.”

Under these provisions of the policy of indemnity the Union Indemnity Company is hound in solido with defendant Meller for compensation to plaintiff for his injuries to the same extent that the defendant Meller is and this though the accident occurred in the State of T'exas and not in the State of Louisiana.

The Workmen’s Compensation Law of the State of Texas was not introduced in evidence bút will be presumed to be the same as that of the State of Louisiana and under the Workmen’s Compensation Law of the State of Louisiana the drilling of a, well for water js a hazardous occupation and plaintiff received his injury in an accident growing out of and incidental to his employment.

For these reasons it is ordered, adjudged and decreed that so much of the judgment appealed from as awards (plaintiff compensation for eight weeks at $20.00 per week with legal interest on each installment from its maturity until paid, subject to a credit of eighty-four dollars already paid, be affirmed, and that so much of said judgment as awards plaintiff further compensation for one hundred weeks at $3.00 (per week with legal interest on each installment from its maturity until paid, be annulled, avoided and reversed. The cqsts of this appeal to be paid by plaintiff.


text:
    No. 10,084
    Orleans
    M. & M. MFG. CO. v. LAURICELLA
    (April 11, 1927. Opinion and Decree.)

      (jSyllabus by the Court)

      1. Louisiana Digest — Pleading—Par. 57.
    An exception of vagueness on the ground that petition does not show whether contract was oral or written was properly overruled where the sworn itemized account annexed to petition shows amounts and kinds of articles purchased on open account and also the various dates.
    Appeal from the 24th Judicial District Court, Parish of Jefferson.
    Action by The M. & M. Manufacturing Comphny against Joseph Lauricella.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Huddleston Kenner, of New Orleans, attorney for plaintiff, appellee.
    F. A. Middleton, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff filed suit against the defendant on an open account showing

a balance due of $245.82 in accordance with the sworn itemized invoices annexed tq the petition.

The defendant thereupon excepted to the petition as follows:

“And now into court comes defendant and excepts to the petition of plaintiff for the reason that the same is too vague and indefinite to ¡permit defendant safely to answer thereto in this: That the petition of plaintiff does not setforth whether or not the contract between the plaintiff and defendant was a verbal or written contract.”

This exception was fixed for trial and after hearing argument the court overruled same, giving the defendant ten days in which to file his answer. This delay having expired and no answer having been filed on motion of plaintiff’s counsel a default was duly entered on March 11, 1925.

On April 3, 1925, more than two days after the entry of the default, no answer having been filed by the defendant, the court confirmed same and rendered a judgment in favor of the plaintiff.

By reason of a clerical error the amount awarded the plaintiff in this judgment was fixed at two hundred twenty and 82-100 ($220.82) dollars instead of the sum of two hundred forty-five and 82-100 ($245.82) dollars named in the petition and prayed thereof, and shown by the sworn itemized account offered in evidence. Plaintiff has filed an answer to this appeal and prayed that this error be corrected and the judgment appealed £rom be amended by inserting the figures “$245.82” in place of the figures “$220.82” in accordance with the prayer of plaintiff’s petition and the itemized account annexed thereto and offered in evidence on the trial of the case.

Defendant, who did not appear when case came up for hearing has filed no brief in this court.

In the case of Bruce & Co. vs. Lambour, 123 La. 977, 49 South. 659, the Supreme Court said:

“That the plea of ‘vagueness’ was directed primarily to the failure of the petitioner to allege whether the principal contract between plaintiff and Lambour (to which it is said Godchaux was a stranger) was oral or written.
“The plea of ‘vagueness’ does not, in our opinion call upon a plaintiff to declare whether he sues upon an oral or written contract.”

As the sworn itemized account attached to plaintiff’s petition shows the number and kind of articles purchased, defendant knew full well whether the contract of purchase was oral or written and the exception was properly overruled.

As this was plainly a clerical error in the judgment, it will be corrected and affirmed.

It is ordered, adjudged and decreed that that said plaintiff, The M. & M. Manufacturing Company have judgment in its favor and against the said defendant, Joseph Lauricella, for the full sum of two hundred forty-five and 82-100 ($245.82) dollars, with legal interest thereon from the 24th day of October, 1923, until paid, together with all costs in both courts.


text:
    No. 11,041-11,055
    Orleans
    ZION v. BODIE
    (July 5, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Execution—Par. 201.
    Only actual damages are recoverable where writ was wrongfully issued, but no malice is shown.
    2. Louisiana Digest — Appeal—Rar. 625.— Execution — Par. 200.
    Where the right to proceed separately for actual damages is reserved by the lower court and the issues of fact have been solved correctly, the judgment will be affirmed.
    Appeal from First City Court, Division “C”. Hon. W.- Y. Seeber, Judge.
    Action by Leon Zion against John Bodie.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    Jules A. Grasser, of New Orleans, attorney for defendant, appellee.
   OPINION

JONES, J.

In case No. 11041, plaintiff sued and obtained judgment by default, on January 18th, 1927, against defendant for two hundred thirty ($230.00) dollars, balance due for goods and merchandise alleged to have been sold and delivered to defendant on August 17th, 1923, and February 12th, 1925.

The' return of the citation, made by the deputy constable, reads in part as follows:

“Service of the citation was made by leaving same at defendant’s domicile, 4126 Constance Street, on instructions of attorney, at feet of lady who refused service, a person over the age of fourteen years residing there at the time of service, defendant being absent; all these facts I learned by interrogating said person.”

Constable’s return on notice of judgment reads that it was served on January 19th on his wife at 4121 Constance Street.

On April 22nd, fifa was issued and Lane Cotton Mills, Inc., was served with interrogatories as garnishee.

On April 26th they answered all interrogatories “No”.

On April 29th, ¡a new citation issued to Lane Cotton Mills, Inc., and interrogatories were served asking if it was indebted to John Bodie, alias Bolster Bodie, in the sum of three hundred fifty ($350.00) dollars.

On April 29th, it answered that it had no one in its employ by the name of John Bodie, but they were indebted to an employee, Bolster Bodie, whom they had always known under that name, in the sum of twenty-six and 83-100 ($26.83) dollars.

On May 3rd, Bolster Bodié filed a rule to set aside the garnishment and recovered damages in the sum of one hundred ($100.00) dollars for illegal seizure on two grounds:

(1) Because he was a laborer.
(2) Because plaintiff had inserted his name in these proceedings illegally, although he was not a party to the suit, and had told the clerk that he would assume the risk. He prayed that plaintfif pay him twenty-five ($25.00) dollars attorney’s fees and seventy-five ($75.00) dollars for inconvenience and humiliation.

On May 7th the rule was tried and, after several witnesses were heard, the garnishment was set aside with reservation of Bolster Bodie’s rights to sue in another proceeding for damages.

On May 9th a rule for new trial was filed for the reason that no stenographer had been present to take down the testimony, as required by Section 91 of Article 7 of the Constitution of Louisiana, but this was refused and an appeal was taken to this court and Bolster Bodie has answered the appeal asking for damages.

On the same day a rule was filed to revise the judgment in this cause to read: “John Bodie and or Bolster Bodie.” To this rule Bolster Bodie filed exception of vagueness and no cause of action and an answer denying the allegations of plaintiff. He averred that he was not the party sued; that he had had no dealings with plaintiff and that plaintiff could not change a final judgment by rule.

On May 16th this rule was tried and dismissed and appeal was again taken to this court under No. 11065.

It would serve no useful purpose to analyze the testimony of the six witnesses which was taken at the trial of the rule to revise the judgment. It suffices to say that we agree with the conclusion of the lower judge that plaintiff has failgd to prove that John Bodie and Bolster Bodie were one and the same person. In reaching this conclusion we have not considered the testimony of Bolster Bodie who was put on the stand under the act by plaintiff, because he contradicted himself flatly.

As to damages for wrongful issuance of writ, it has been repeatedly held by the Supreme Court that only actual damages are recoverable, where no malice is proved.

Kee vs. Smith, 35 La. Ann. 518;

McDaniel vs. Gardner, 34 La. Ann. 343; Byrne vs. Gardner, 33 La. Ann. 6;

Dickinson vs. Maynard, 20 La. Ann. 66;

Carter vs. Tufle, 15 La. Ann. 16.

As the judgment of the lower court reserves to Bolster Bodie the right to sue for these damages in another proceeding, we think substantial justice will be done by affirming the judgment of the lower court.


author: CLAIBORNE, J.

text:
    No. 10,849
    Orleans
    POLINSKY v. MICHEL LBR. AND BRICK CO., Appellant
    (June 6, 1927. Opinion and Decree.)
    (July 5, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations'—Par. 38, 182.
    When - there is a dispute between the owner of an automobile and a mechanic as to the quantity and price of the work agreed to be done and the value of the work done is four times the amount which the owner testifies the mechanic agreed to make it for, the value of the work will preponderate 'in favor of the mechanic.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by A. Pozinsky against Michel Lumber and Brick Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Scott E. Beer, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for repairs made to an automobile.

The plaintiff alleged that on September 1st, 1926, the defendant ordered him to do certain work on his Federal truck;

That on September 11th, 1926, defendant ordered him to do certain work on his wagon; and that on September 27th, 1926, plaintiff did general repairs to the body of plaintiff’s Amleder truck for the agreed price of $50; that thereafter the defendant requested plaintiff to overhaul the engine and machinery of said truck so as to put it in working condition, but no definite price Was agreed on, as it was not possible at the time to ascertain what work would be necessary; that plaintiff did all the necessary work and furnished all materials on the three trucks; that the repairs to the Amleder truck are worth $194.28; those to the Federal truck, $4.50; and those to the single wagon $5.85; making a total of $204.63; which plaintiff claims from defendant.

The defendant denied- having ordered the plaintiff to ovérhaul the engine and machinery of the Armleder truck; admits having ordered the repairs to the Federal truck and to the wagon, but denies that the work was properly done or that it is worth the price charged; it admits owing $50 for the Armleder truck, $4.50 for the Federal truck, and $5.85; for the wagon, and $4.38 for a cushion, oil and gasoline, making a total of $64.73; but that plaintiff is indebted to defendant for goods sold in the sum of $40, leaving a balance due by defendant of $24.75, which it presently deposits in the registry of the court.

There was judgment in favor of plaintiff for $204.63, subject to credits of $40 and $24.75.

The defendant has appealed.

There is no dispute about the repairs to the Federal truck, $4.50, or to the wagon, $5.85, or to the $50 agreed upon for repairs to the Armleder truck, nor for the cushion, $4.38. The only dispute is about the extra work done to the Armleder truck.

The bill sued on for the repairs done to that truck amounts to $189.90.

It is not denied that the work charged for was done. But the defendant testified that plaintiff contracted with .him to do all that work for $50 which he admits owing. Pozinsky, the plaintiff, denied that he did. He testified that he agreed to make repairs to the woodwork for $50, but made no .price for repairs to the motor and engine, and that the extra amount of $139.90 is all for work and materials in connection with these as the bill shows.

The plaintiff’s testimony is corroborated by the facts of the case. It is not probable that a mechanic like the plaintiff would have agreed to make $189.90 worth of repairs for $50.

In addition to the plaintiff, one Alexander, an employee of plaintiff, testified that he heard the defendant Michel ask Pozinsky the price for repairing the motor, and Pozinsky answered that he could not tell until he took down the motor which was broken, and Michel then told him: “Go ahead and fix it.”

In addition to this the trial judge saw and heard the witnesses • and rendered judgment in favor of plaintiff. We cannot say he erred.


text:
    No. 9816
    Orleans
    GARCIA-DAVIS-SCHEUERMAN, INC., v. AUDUBON CHEMICAL CO.
    (June 20, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes— Par. 152, 153, 154, 158.
    The maker of a rent note has the entire day of maturity to pay it and default thereon is not proved, where the evidence shows that the note was presented at lunch hour on the day it became due and the messenger was told to call for the check later in the afternoon, but failed to do so, although the attorneys for both parties had agreed that the check would be accepted later.
    2. Louisiana Digest — Landlord and Tenant —Par. 102.
    Under such circumstances, where debtor is not given notice or demand on daté of maturity, obtention the next morning of a writ of provisional seizure for the total amount of rent for unexpired term plus ten per cent attorney’s fees is illegally obtained, and a judgment dissolving the writ and granting attorney’s fees for its dissolution will be maintained.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Garcia Davis-Scheuerman, Inc., against Audubon Chemical Company.
    There was judgment for plaintiff in rule and defendant in rule appealed.
    Judgment affirmed.
    Jos. H. Brewer, W. A. Greer, of New Orleans, attorneys for defendant in rule, appellant.
    C. S. Hebert, Jewell A. Sperling, of New Orleans, attorneys for plaintiff in rule, appellee.
   JONES, J.

This is an appeal by plaintiff from a judgment making absolute a rule by defendant to show cause why a writ of provisional seizure should not be dissolved and damages awarded for wrongful issue of writ.

The sole issue is whether a certain rent note, due 'July 1st, 1924, was presented for payment on that day and whether default in said payment was proved.

The attorney for defendant in rule argues that this provisional seizure suit for three hundred forty and 00-100 ($340.00) dollars, plus ten per cent attorney’s fees, the total amount of rent for unexpired term, filed on July 2nd, 1924, is legally well founded, because he had sent the note to the office of the sub-lessee on the afternoon of July 1st, about 1 P. M., where the messenger had been told that the officers were then out for lunch and he must return later in the afternoon.

In support of this argument he quotes from Corpus Juris, Vol. 8, p. 547, Sec. 759, as follows:

“Although the maker of a ¿ote or acceptor of a bill has the entire day of maturity in which to pay the same, it is not neeessaray to wait until the last moment to present it and to demand payment, but it may be presented for payment at any reasonable hour of the day of maturity and, if payment is refused, it may be protested and notice of dishonor given at once: The hour at which the presentment is made must be, however, a reasonable hour.”

It is thus seen that the maker of the note has the entire day of maturity for payment and that the presentment must be made at a reasonable hour.

Even if the testimony to above facts was all that the record contained on presentment for payment and refusal, we doubt that justification for suit the next day would be proved, but the evidence shows that about 2 P. M. that day defendant went to the bank where the rent notes had hitherto been left for collection in order to pay it and found out that the notes were no longer there; that he then notified his attorney, who at once telephoned plaintiff’s attorney to send to defendant’s office for the check.

This gentleman testified and his testimony is uncontradicted, that plaintiff’s attorney said that his clerek was then out of the office, but that he would send him for the check at 4:30 P. M., would deposit it the next morning and would deliver the rent note as soon as the check went through the clearing house.

The evidence further shows that the check was not sent for that afternoon, although one of defendant’s officers waited at the agreed place until 5:15 P. M. in order to deliver it, and that on the morning of July 2nd the amount of the note was tendered in currency, but was refused, because an attorney’s fee of ten per cent was not included in the amount tendered.

Under the circumstances clearly established by the evidence, we agree with the trial judge in his conclusion that the writ of provisional seizure should be dissolved and plaintiff should pay a reasonable fee to defendant’s attorneys for their services in securing the dissolution thereof. The trial judge fixed this fee at seventy-five and 00-100 ($75.00) dollars, and we consider the amount reasonable in view of the amount claimed and the services rendered.

For above reasons the judgment is affirmed.


text:
    No. 2941
    Second Circuit
    CROOKS v. BROWN PAPER MILL CO.
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (jSyllabus by the Gourt)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on an issue of fact will not be reversed unless manifestly erroneous.
    Wood vs. K. C. S. Ry. Co., 4 La. App. 23.
    2. Louisiana Digest — Master and Servant —Par. 160j.
    Testimony of an injured employee suing for compensation under the Employers’ Liability Act corroborated by his co-laborers that since the removal of his spleen necessitated by his injuries he has been unable . to stand erect, bend over or lift anything heavy, is not overcome by the testimony of a surgeon that the removal of the spleen by a surgical operation which opens the abdomen and leaves a scar “like the gulf” should not produce permanent total disability to do work of a reasonable character; especially when there is a conflict in the testimony of the medical experts who testified as to the effects of removal of the spleen, and “doctors disagree and soundest casuaists doubt.”
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Earl Crooks against Brown Paper Mill Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hudson, Potts, -Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellee.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellant.
   STATEMENT OF T'HE CASE

REYNOLDS, J.

This is a suit under the Eipiployers’ Liability Act by Earl Crooks against the Brown Paper Mill Company, Inc., to recover $12.75 per week for 400 weeks, the first payment to be declared due November 25, 1925, with legal interest on each payment from its maturity, as for permanent total disability to do any work of a reasonable character resulting from an injury sustained by plaintiff on November 15, 1925, while in the employment of defendant and in the course of and growing out of his employment.

Plaintiff was knocked into unconsciousness and his spleen ruptured by, being struck by an empty paper reel weighing approximately a thousand pounds that was being moved by the use of an electric crane.

And in order to save his life a surgical operation was performed and his spleen removed.

He alleges that since the removal of his spleen he has been unable to stand erect, to stoop over or to do manual labor of any kind that requires the lifting of anything having weight.

Defendant denied liability, and alleged that — ■

“while the plaintiff received a painful hurt and his spleen was removed, he now suffers no disability and can now work as well as he could before the injury.”

On these issues the case was tried and there was judgment in favor of the plaintiff as prayed for and the defendant appealed.

OPINION

The question to be determined in this case is one of fact, namely: Whether or not plaintiff has recovered from the effects of the surgical operation to such extent as to enable him to do work of a reasonable character.

Our learned brother of the District Court, who heard the witnesses and saw them testify, found for the plaintiff wfio testified:

(Record, page 6.)

“Q. Explain to the court the manner in which you were injured, and the nature of your injuries, as well as you can, at the time you were injured.
“A. Just how it was done and everything about it?
“Q. Yes, sir.
“A. Well, I was cleaning two big rolls of paper. I got the T beam on the crane, that weighed about seven hundred pounds; we were picking up the empty reel — another fellow swung the crane against me and mashed me against a big roll of paper, and mashed me in the side unconscious.
“Q. How long were you unconscious?
“A. About two,, hours. Until I got to the hospital.
“Q. Were you taken directly to the hospital?
“A. Yes, sir; I was taken to the office first and put on a cot.
“Q. Who attended you; what physician?
“A. Dr. Graves.
“Q. Dr. Grayes?
“A. Dr. J. Q. Graves.
“Q. What did he inform you?
“A. He said I had to be operated on.
“Q. Did he tell you what was the matter with you?
“A. No, sir.
“Q. Did he operate on you?
“A. Yes, sir.
“Q. What did he do when he operated on you?
“A. Removed my spleen.
“Q. Was anything injured besides your spleen?
“A. No, sir; just had a hemorrhage.
(T'estimony, ipage 4.)
“Q. What was the length of the incision that was necessary to remove your spleen?
“A. What was that?
“Q. What was the length of the scar?
“A. About nine inches one way and about four or five another.
“Q. Have you noticed since your operation in (any) effects or incapacity?
“A. Yes, sir; I sure have.
“Q. Describe to the court as well as
you can your present condition.
“A. Well, the first thing, I cannot straighten' up; and it pulls me every time I pull myself up, under the ribs here. Have a hurting in my side all the time. My stomach swells up on me once in a while.
“Q. What was that you said you had in your stomach?
“A. Hurting in my side, here.
“Q. Hurting in the side?
“A. Yes, sir.
“Q. And your stomach swells up?
“A.-Yes, sir, once in a while; and stay constipated all the time.
“Q. Are you able to lift the weight you could before you were injured?
“A. No, sir.”

E. J. Riles testified. (Testimony, page 15.)

“Q. (By the Court.) Just, tell what you know about it.
“A. He was not trying to work, for the simple reason he was complaining all the time. He informed me that he was constipated and went to see Dr. Graves and Dr. Graves said to eat plenty of vegetables and your constipation will cease. A man cannot eat mustard greens altogether. He was constipated and in bed two weeks ago and he couldn’t get Dr. Graves and he called Dr. Wolff in and Dr. Wolff treated him, and I asked Dr. Wolff what his trouble was^—
“Q. Just tell what you know and what you saw. You say he cannot work. How do you know?
“A. He complains — I do not know he cannot work — he complains that he can not work.
“Q. Mr. Crooks ever come to you and ask you to get a doctor for him?
“A. About ten days ago he come to my office late one evening and said I have a hurting in my side here and pulled his shirt tail up—
(By the Court: That’s not material.)
“Q. He cqme up and asked you to call a doctor?
“A. Yes, sir.”
Charlie Nobles testified, page 16 of testimony.
“Q. Were you working with Mr. Crooks several months ago at the pump station?
“A. Yes, sir.
“Q. For the Crusader Pipe Line Company?
“A. Yes, sir.
“Q. What was the condition of Mr. Crooks when he was working?
“A. Well, he was all the time complaining of being sore in the morning in his side, and couldn’t hardly straighten up, for one thing; two or three times at nights he was sick and couldn’t get out the next morning. Something the matter with his side and stomach. Some hard lifting would come up and some of us boys would take it off of him, myself or some other boy- — not to let him lift anything heavy — too many men hurt themselves after they are operated on.”
Dr. J. Q. Graves testified, testimony, page 60.
“Q. Doctor, could the removal of the spleen have anything to do with causing chronic constipation ?
“A. I cannot answer that question. That is such a disputed and moot question that the greatest authorities we have today are arguing on that. I cannot answer that personally.”

A careful reading of all the testimony in the case convinces us that the judgment of the District Court is correct and accordingly it is affirmed.


text:
    No. 2863
    Second Circuit
    CLOUD v. OHIO OIL CO.
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 159, 160e, 160j.
    In a suit under the Workmen’s Compensation Act (Act 20 of 1914 and amendments) for compensation for disability resulting from a broken finger, where the preponderance of the testimony of the medical experts testifying in the case is to the effect that in from six weeks to three months plaintiff’s finger will be normal again, the court should fix the period during which compensation shall be paid.
    Upshaw vs. Triangle Drilling Co., 5 La. App. 224;. Fuller vs. Robinson Constr. Co., 5 La. App. 241; Mays vs. Allison & Langston Supply Co., 5 La. App. 686.

      Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Martin Cloud against Ohio Oil Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    R. L. Benoit, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under the Workmen’s Compensation Law (Act 20 of 1914 and amendments) to recover compensation for • disability resulting from a broken finger.

Plaintiff alleged that he was earning $31.50 a week and that his injury had rendered him unable to perform any work of a reasonable character.

Pie prayed for judgment for $20.00 a week during disability, not exceeding four hundred weeks, less compensation for eight weeks already paid him by defendant.

Defendant denied liability and alleged that plaintiff had fully recovered from the disability resulting from the injury.

The case was tried on May 19, 1926.

On April 25, 1926, a motion to reopen the case was filed and later the motion was refused.

On May 12, 1926, a second motion to reppen the case was filed and this also was refused.

On May 26, 1926, a motion for a new trial was filed and allowed.

On July 22, 1926, the case was tried the second time.

On October 26, 1926, a motion to reopen the case was filed.

On November 3, 1926, the motion was overruled.

On November 3, 1926, judgment was rendered in favor of the plaintiff and against defendant for $20.00 a week for twenty-five weeks beginning December 31, 1925, with legal interest on each payment from its maturity until paid, less $160.00 already paid. The judgment also fixed the fees of the experts who testified at $25.00.

From this judgment both plaintiff and defendant appealed.

OPINION

The question for determination in this case is whether the trial court erred in fixing the period during which defendant should pay plaintiff compensation at twenty-five weeks instead of a longer period.

As to the extent of plaintiff’s injury, Doctor S. C. Barrow testified, page- 32:

“Q. Doctor, can you say whether or not the injury disclosed to his hand, the whole injury disclosed by your x-ray examination, will result in a "permanent loss of the use of the hand or could that injury be remedied and permit the .use of the hand?
“A. Well, our observation of fractures has been, or of fractures of that kind, that after the lapse of a reasonable length of time and proper use that they get good results.
“Q. Can you estimate that time doctor?
“A. I cannot estimate it accurately; but we would ordinarily think about two or three months it ought to clear up entirely. That is just an approximate estimate.”

Doctor J. M. Dennis testified on the second trial (pages 2 and 3):

“Q. When did you consider from your knowledge of Mr. Cloud, when did you consider that his disability terminated?
“A. April 1st.
“Q. Upon what do you base that conclusion, doctor?
“A. On the condition of his hand.”

Doctor A. P. Crain testified, on the first trial (page 18):

“Q. The condition Mr. Cloud’s right hand is in now, how long do you estimate is necessary by proper treatment to restore that hand so he could use it practically as well as he did before he was injured, that is, without any operation, just treating it, such treatment as a doctor would give it?
“A. I presume about two or three months.
“Q. Two or three months?
“A. Yes, sir.”

In line with this and other testimony in the record our learned brother of the District Court, in well considered written reasons for judgment, said in part:

“The new trial was had July 22, 1926, four months after the first trial. At this time Dr. Dennis testified that he considered that plaintiff’s disability had ceased April 1st. However, he admits that when he examined the plaintiff on the 9th of April his grip was still weak. He attributed this to lack of co-operation on the part of the plaintiff. Attached to the deposition of Lewis L. Graham, chief adjuster, Business Men’s Assurance Co., of America, we find a preliminary statement signed by plaintiff but undated, in which, over his own signature, he asserts that he considers that his disability will continue for six weeks. As the physician’s preliminary statement, also attached, is dated January 2, 1926, we presume that is also the date of plaintiff’s statement. We also find that on the 9th day of April plaintiff made to the insurance company a sworn final statement that his disability ended April 1, 1926, and that he resumed his occupation April 1st. He claimed from the insurance company indemnity for ninety-six days. We can think of no reason why plaintiff should make false statements under oath to the insurance company as such statements were against his interest. Furthermore, plaintiff did not appear at the new trial to explain these statements or to offer his hand for examination. Thereafter defendant filed an application to reopen the case, attaching affidavits to show that plaintiff had been working at a ‘roughneck’ since the 31st day of August, 1926, receiving the same Wages as before the injury. Under our views of the case we do not feel it necessary to again reopen it. Though the hand was not fully restored to use April 9th according to Dr. Dennis, we feel that plaintiff’s sworn statement that his disability ceased April 1st together with his failure to appear at the new trial' more than four months after the first one, justifies the court in concluding that the estimate of the physicians that he would recover the use of his hand in three months at the outside, to be correct. These physicians were defendant’s witnesses. We therefore think plaintiff should recover for a period of three months after the date of the first trial. There is accordingly judgment in his favor and against defendant for twenty-five weeks at $20.00 per week, the first payment to be due December 31, 1925, each weekly payment to draw legal interest from the date it falls due until paid. The above amount is subject to a credit of $160.00 or eight weeks’ (payment already received by plaintiff. Respondent to pay all costs of this suit.”

After carefully reading the record we are satisfied that the judgment appealed from is correct and accordingly it is affirmed.


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    No. 9668
    Orleans
    BAIN v. GRILLOT
    (March 28, 1927. Opinion and Decree.)
    (April 25, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)
    . (Syllabus by the Court)

    1. Louisiana Digest-Obligations — Par. ' 50, 51.
    Betting on a horse race is not prohibited by law and money lost in such a bet may be recovered in the courts.

      Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Frank C. Bain against Jules Grillot.
    There was judgment for plaintiff and defendant appealed.
    'Judgment affirmed.
    J. A. Casey, of New Orleans, attorney for plaintiff, appellee.
    M. F. Hertz, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a suit for $800 based upon several bets made upon horse racing immediately before the running of the horses and within the enclosure of the Fair Grounds Race Track, a licensed race course.

The defense is that betting upon horse racing is in violation of law and therefore illegal.

There was judgment against defendant and he has appealed.

The defendant relies upon C. C. 1893-1895 and Act 57 of 1908 and State vs. Gardner, 151 La. 874, 92 South. 368. None of these support his position.

Article 2983 (2952) of the Civil Code reads as follows:

“The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing; as to such games, the judge may reject the demand, when the sum appears to him excessive.”

A bet on a horse race has been recognized as a lawful obligation in this state for more than a century. Vernot vs. Yocum, 3 Mart. (O. S.) 406; Henderson vs. Stone, 1 Mart. (N. S.) 639; Moore vs. Johnston, 8 La. Ann. 488; Grayson vs. Whatley, 15 La. Ann. 525; St. Ceran vs. Sherman, 18 La. Ann. 520; St. Ceran vs. Sherman, 19 La. Ann. 192; City of Shreveport vs. Maloney, 107 La. 193, 196, 31 South. 702; Greco vs. Oddo, Orl. App. No. —; Russo vs. Russo, Orl. App. No. 10672; Vitito vs. Shea, 16 La. 987.

In the case of Grayson vs. Whatley, 15 A. 525, the court said:

“A contract to run a horse is not prohibited by law and money lost in such a race may be recovered by action in the courts.”

In City of Shreveport vs. Maloney, 107 La. 193, 31 South. 702, the court said:

“Laws heretofore passed ' against gambling do not include betting on horse races in any form. Betting on hoi’se racing, in view of the bettors, within their means, is not unlawful, but, on the contrary, has the law’s special sanction.”

The following is Article 188 of the Constitution:

“Gambling is a vice, and the legislature shall pass laws to suppress it.” * * *

It cannot be held to come within the terms of the article cited above for the very plain reason that the article is not operative “proprio vigore”. The legislature has not deemed proper to carry out its mandate. Until it takes action the article cited must remain without effect.

Act 57 of 1908, p. 64, prohibits the “operation of a betting book or a French Mutual pooling device;” and Act 127 of 1920, p. 185, repeats the prohibition, “provided, however, that the provisions of this act shall not apply to betting or wagering within the track or other enclosure where the races actually take place”. State vs. Austin, 142 La. 384, 76 South. 809; State vs. Gardner, 151 La. 874, 92 South. 368; State vs. McBride, No. 24432 Supreme Court. Repeal by implication is not favored. N. O. Motor Co. vs. Kelt, 3 La. App. 336.


text:
    No. 3007
    Second Circuit
    FLASPOLLER CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS BURKE CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS LOUISIANA MOLASSES CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS WORMS CO. v. SIESS GOODBAR & CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS LEHMAN & CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS DWYER BROS. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS HARDTNER CO. v. SIESS RICH, ET ALS, THIRD OPPONENTS AND INTERVENORS
    CONSOLIDATED
    (June 28, 1927. Opinion and Decree.)
    (July 9, 1927. Application for Rehearing.)

      (Syllabus by the Court)

    1.Louisiana Digest — Intervention—Par. 5.
    Intervenors, third opponents, demanding to be paid by preference over seizing creditors, out of the proceeds of property sold under executions, enter the case as they find it and are without standing to question the regularity of the proceedings under which the property was sold, unless they allege fraud or collusion between the seizing creditors and the common debtor to their prejudice.
    First Nat. Bk. of Ft. Wayne vs. Ft. Wayne, etc., Co., 105 La. 133, 29 South. 379.
    2. Louisiana Digest — Minors—Par. 184. Four years after a minor attains his
    majority his right of action against his tutrix for an accounting of the tutorship becomes prescribed.
    Bedell vs. Calder, 37 La.. Ann. 805.
    Civil Code, Art. 362.
    3. Louisiana Digest — Minors—Par. 193, 195.
    A judgment obtained by a minor against his tutrix fixing the amount, of the indebtedness of the tutrix to him more than four years after he attained his majority is inferior in rank to a judgment obtained against the tutrix by third persons and recorded prior thereto.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by August H. Flaspoller Company, Inc., Nicholas Burke Company, Ltd., Louisiana Molasses Company, S. E. Worms Company, Ltd., Goodbar & Company, A. Lehman & Company, Dwyer Brothers Company, Ltd., Albert Hardtner Company, against Mrs. Mina Siess, widow of A. Rich. Mrs. Mary Rich, et als, third opponents and intervenors.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    J. C. Cappel; Porterie & Bordelon, of Marksville, attorneys for plaintiffs, appellants, in intervention and third opposition.
    W. E. Couvillon; J. W. Joffrion; A. V. & Philo Coco, of Marksville, attorneys for defendants, appellees, in intervention and third-opposition.
   STATEMENT OP THE CASE

REYNOLDS, J.

In the year 1907 the various plaintiffs obtained judgments against the defendant in the District Court of Avoyelles Parish and had them registered in the mortgage records of that parish.

And in the year 1917 by judgments of the said court the several judgments were renewed and revived and duly registered in said mortgage records.

On January 26, 1926, executions were issued upon the judgments and certain immovable property belonging to the defendant situated in Avoyelles Parish was seized thereunder and thereafter duly sold for the sum of $3900.00.

On June 12, 1926, Mrs. Mary Rich, wife of Robert Cone; Sadie Rich, wife of Jim Woodson; Rachel Rich, wife of Richard Coberly; Aaron Rich, and Ben Rich, filed. in each of the suits their joint petition of intervention and third-opposition in which they ask to be paid, by preference to the seizing creditors, out of the proceeds of sale of the property, the principal, interest and cost of a certain judgment recovered by them on May 1, 1926, in the District Court of Avoyelles parish against the common defendant for the sum of $7776.01 with legal interest thereon from that date until paid and which judgment recognizes a legal mortgage in their favor for its satisfaction on the property seized and sold under the several executions and was recorded on the day of its rendition in the mortgage records of said parish.

They allege that they, together with Lee Rich, who died on April 1, 1922, were the only children and sole heirs of Abe Rich, who died October 26, 1905, issue of his marriage with the defendant Mrs. Mina Siess.

That on June 25, 1907, their said mother was duly appointed and qualified as their natural tutrix, all of whom were minors at the time.

That an inventory, both descriptive and estimative, of the property belonging to the succession of their deceased father was duly made, showing a value of $24,494.02; and that on June 25, 1907, an abstract of said inventory was duly recorded in the mortgage records of said parish for the purpose of preserving the minors’ legal mortgage on the property of their tutrix, and that for the purpose of preserving their said legal mortgage the said abstract of inventory was re-inscribed in the mortgage records of said [parish on February 3, 1926.

They prayed that their judgment against their mother be decreed superior in rank to the several plaintiffs’ judgments against her and that their judgment be paid out of the proceeds of the sale of her property in preference to the executions of the seizing creditors. They further prayed that the sheriff be ordered to retain in his possession the proceeds of the sale until final judgment on their intervention.

The judge signed an order directing the sheriff to retain the proceeds of the sale in his possession until further order of the court.

Each of the defendants in intervention and third-opposition filed a separate answer.

They denied that intervenors and third-opponents’ judgment against their mother was a mortgage on her property prior in rank to their judgments, and denied that intervenors and third-opponents were entitled to be paid out of the proceeds of the sale of the property in preference to them; and they alleged:

That there was additional issue of the marriage between Mrs. Mina Siess and Abe Rich," namely, Lee or Leopold Rich, of whom she had qualified as natural tutrix and who had died unmarried, without issue and intestate.

That all of intervenors and third-opponents were over the age of twenty-eight years; that Aaron Rich was the youngest of them and was twenty-eight years of age on November 5, 1925, and was duly emancipated from all the disabilities of minority on May 15, 1917.

That at the time of the seizures under their respects executions more than nine years had elapsed since the emancipation of Aaron Rich and more than eight years since he and his co-intervenors and third-opponents had attained the age of twenty-one years without any judgment having been rendered in their favor against their tutrix or even any suit having been commenced by them against her for an accounting of her tutorship.

That any liability their tutrix might have been under to intervenors and third-opponents in virtue of her tutorship became extinct and ceased to exist four years after Aaron Rich was emancipated quo ad him and four years after each of the intervenors and third-opponents attained the age of twenty-one years as to the others of them respectively.

That the legal mortgage in favor of the intervenors and third-opponents on the property of their mother resulting from the registry of the abstract of inventory in the tutorship proceedings ex-pride and ceased to exist contemporaneously with the expiration of liability of intervenors and third-opponents’ mother to them in virtue of the tutorship.

The cases were consolidated for purpose of trial. •

On these issues the case was tried and there was judgment rejecting the demands of intervenors and third-opponents and dismissing their interventions and third-oppositions and ordering the sheriff to pay over to the seizing creditors the proceeds of the sale in satisfaction of their executions.

Intervenors and third-opponents have appealed.

OPINION

According to the brief filed by inter venors and third-opponents the record presents for decision only two questions, namely:

1. Did the trial court err in refusing to allow intervenors and third-opponents to introduce evidence for the purpose of showing that the—

“seizing creditors were no longer in existence and that they had made no provision to appoint liquidators or successors to exercise rights and execute judgments.”

2. Had intervenors and third-opponents rights of action against their tutrix for an accounting of her tutorship and their legal mortgage on her property resulting from the recordation of the abstract of inventory expired and ceased to exist quo ad the seizing creditors at the time their executions were levied upon the property of Mrs. Mina Siess Rich.

I.

In our opinion the District Court correctly excluded the testimony offered to show that the seizing creditors had no legal existence.

A third .opponent claiming property under seizure has no standing to question the regularity of the proceedings, unless he charges fraud or collusion between the plaintiff and defendant to his prejudice. He is otherwise confined - to the establishment of his title to the property claimed by him.

First Nat. Bk. vs. Ft. Wayne etc. Co., 105 La. 133, 29 South. 379.

As said by the court in the case cited—

“But a claimant has surely no right to show any irregularity in the suit in which he intervenes for the sole purpose of rescuing the property. Whether the plaintiff, the court and the sheriff have been acting legally, or not, is none of his business.”

Intervenors and third-opponents cannot claim under and against the proceedings under which the property was seized and sold.

II.

The evidence convinces us that Aaron Rich, the youngest of the intervenors and third-opponents was more than twenty-eight years old as consequently also were his co-intervenors and co-third-opponents on January 28, 1926, the date on which the executions were levied.

Intervenors and third-opponents’ suit against the natural tutrix for an accounting of her tutorship was filed on May 1, 1926, and on the same day she accepted service of the petition, waived citation and confessed judgment in their favor.

On the same day judgment in favor of the intervenors and third-opponents and against Mrs. Mina Siess Rich as their natural tutrix was read and signed and recorded in the mortgage records of Avoyelles parish.

More than four years elapsed between the date on which the youngest of intervenors and third-opponents attained his majority and that on which intervenors and third-opponents instituted their action against their mother for ‘ an • accounting of her tutorship. Therefore quo ad the seizing creditors who had acquired rights on the tutrix’s’ property in the interim the cause of action of intervenors and third-opponents against their tutrix was prescribed and their legal mortgage on her property had ceased to exist when their suit was filed.

“The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority.”

Civil Code, Art. 362.

“Creditors and all other persons who may have an interest in the acquiring of an estate or the extinguishment of an obligation by prescription, shall have the right to plead it, even in ease the person claiming such estate, or bound by such obligation, should renounce such right of prescription.”

Civil Code, Art. 3466.

“The mortgage is accessory to a principal obligation which it is designed to strengthen, and of which it is to secure the execution.
“Consequently, it is essentially necessary to - the existence of a mortgage that there shall be a principal debt to serve as a foundation for it.
“Hence it happens, that in all cases where the principal debt is extinguished, the mortgage disappears with it.”

Civil Code, Arts. 3284, 3285.

“The prescription of four years is a bar to a minor’s action against his tutor.”
“After the expiration of four-years from her (the minor’s) majority no action would like in her (the minor’s) favor to compel the rendition of an account by her tutrix, or to change or alter in her (the minor’s) favor any account of the tutrix rendered — or, in short, to establish any indebtedness on the part of the tutrix ‘respecting the acts of the tutorship’ not already legally acknowledged or fixed. This we take to be the true intent and meaning of Art. 362 of the Civil Code.”

Bedell vs. Calder, 37 La. Ann. 805.

“The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by the lapse of four years to date from his majority, and the tacit mortgage given by law against the property of the tutor, is extinguished by the same lapse of time.”

Aillot vs. Aubert, 20 La. Ann. 509.

Intervenors and third-opponents insist that the recordation of the abstract of inventory in the mortgage book gave them a legal mortgage on the property of their tutrix that prescribed only after ten years; that prescription did not run against them on this mortgage during their minority; that the mortgage was reinscribed on February 3, 1926; that this was within ten years of their majority and that therefore -their legal mortgage was still subsisting; and they cite Lemelle vs. Thompson, 37 La. Ann. 1041.

In that case the claims of the minor against his tutor growing out of the tutorship had been merged in judgment within four years after the minor attained his majority.

We find no error in the judgment appealed from and it is therefore affirmed.


text:
    No. 10,842
    Orleans
    INTERNATIONAL ACCOUNTANTS' SOCIETY, INC., Appellant v. MONTREUIL
    (May 9, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied in Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Corporations—Par.-21.
    One who has constracted with a corporation and has received a benefit from it cannot deny its existence.
    2. Louisiana Digest — Builders and Buildings — Par. 21, 25. — Mechanic’s Privileges — Par. 2.
    Article C. C. 2765 (2736) refers to contracts for buildings and other works and for furnishing materials.
    3. Louisiana Digest — Builders and Buildings — Par. 21, 25. — Mechanic's Privi-
    leges- — Par. 2.
    Article 2765 of the Civil Code is an exceptional and novel provision of our law and must be strictly construed.
    4. Louisiana Digest — Depositions—:Par. 29, 39, 41.
    Depositions and answers may be introduced in evidence, although no rule was taken to admit, them.
    Appeal from First City Court, Division “A”. Hon. W. A. Bahns', 'Judge.
    Action by International Accountants •Society, Inc., against H. A. Montreuil.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    J. A. Morales, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

This is a suit on a promissory note.

The plaintiff alleged that it is the owner of a promissory note dated April 22nd, 1925, for $155 signed by defendant, payable $10 cash - and $8 on the last day of each month beginning June 1st, 1925, until paid; that $18 has been paid on account leaving a balance due of $137.

The defendant denied the capacity of plaintiff.

One who has contracted with a corporation and has received a benefit from it cannot deny its existence. Liverpool & London Fire & Life Ins. Co. vs. Hunt, 11 La. Ann. 623; East Pascagoula Hotel Co. vs. West, 13 La. Ann. 545; City Ins. Co. vs. S. S. Lizzie Simons, 19 La. Ann. 250; Latiolais vs. Citizens Bank, 33 La. Ann. 1445; American Homestead Co. vs. Linigan, 4 La. Ann. 1118; Lehman & Co. vs. Knapp, 48 La. Ann. 1154, 20 So. 674; Blanc vs. Germania Nat. Bk., 114 La. 741, 38 South. 537.

Por answer, the defendant pleaded that tb.e note had been given in payment of a set of books he purchased from plaintiff, but that the books were not as represented and could not be used for the purpose for which they were purchased; that the plaintiff admitted that the books were not as represented and agreed to ta¿e, them back and to return the note and the $18 paid on account thereof; that defendant returned the 'books to plaintiff which failed to return the note or the cash paid on account.

There was judgment in favor of defendant dismissing plaintiff’s suit as in case of non-suit, and it has appealed.

The defendant testified in his own behalf.

He failed to substantiate the allegations of his answer.

He testified that the books sent to him were not to his liking, but he did not testify that the plaintiff had agreed to take back the books or to return the $18 paid by defendant on account.

The judge below gave written reasons for judgment. He said:

“The defendant had a right to cancel at pleasure the bargain he had made even in the case where the contract had already been commenced by paying the plaintiff for the expenses and labor already incurred and such damages as the nature of the case may require. The plaintiff, having failed to show the amount of expense or labor or damages, the court renders a judgment of non-suit.”

The defendant’s attorney argued in line with that opinion and quoted Article 2765 of the Civil Code. But that article is under a section entitled, “Of constructing buildings according to plots and other works by the job, and of furnishing materials,” and refers exclusively to building contracts. Its provisions cannot be extended to other' contracts. It must be strictly construed. The attorney cites several cases, but they also treat of building contracts.

In the case of Monarch vs. Board, 49 La. Ann. 995, 22 South. 259, the court said:

“Moreover, under special Articles one may cancel the contract with a builder. It is an exceptional right applying to special cases, but it is clearly expressed.”
“It has been referred to as ‘novel in the provision of our law, thus giving a right to one of the parties to a contract to annul ad libitum’.”

The plaintiff introduced in evidence the contract and the note both signed by the defendant.

These documents establish its case. The only defense is that defendant, after signing them and receiving the books came to the conclusion that the books and lessons furnished by the plaintiff were “not to his liking”. This is no legal ground to refuse to perform a contract.

Depositions and answers may be introduced in evidence, although no rule was taken to admit them. C. P. 439; Tarleton vs. Bringier & Co., 15 La. Ann. 419; Verret vs. Bonvillain, 32 La. Ann. 33.

It is therefore ordered that the judgment be reversed and set aside, and it is now ordered that the defendant, Hamilton A. Montreuil he condemned to pay to the plaintiff, the International Accountants Society, Inc., the sum of one hundred and thirty-seven dollars, with five per cent per annum interest, from August 22nd till paid, and all costs of suit.