text:
    No. 476
    First Circuit
    HOGGATT v. LAMPTON
    (June 10, 1929. Opinion and Decree.)
    Ott and Johnson, of Franklinton, attorneys for plaintiff, appellee.
    Harry Sellers and Edward Rightor, of New Orleans, attorneys for defendant, appellant.
   LECHE, J.

The present demand is for damages arising out of an automobile collision.

Plaintiff’s son was driving an automobile on a public highway, going away from Franldinton, in the Parish of Washington, and defendant was driving on the same highway towards Franldinton. The two oars were a little over a mile from that town when they collided. It was then about dusk or getting dark. Neither automobile had on its headlights. It was on the 9 th of September, when the sun sets about 6:20 o’clock.

The law, Act 232, page 390 of 1926, requires that headlights should be put in operation one-half hour after sunset. But it is impossible from the vagueness of the testimony, to say whether the time fixed by law when headlights must be used, had yet arrived, so that we cannot say with certainty whether or not both parties were negligent in that respect.

Plaintiff’s automobile was struck on the 'left side about the rear end of the left front fender or about the left front door, and defendant’s automobile was struck about the left end of his bumper, or near the left head lamp. This shows rather conclusively that defendant ran his car into that of plaintiff. Plaintiff’s car is claimed by the son to have been near his right side of the road and was toppled over into the ditch, that of defendant was by the glancing blow, swerved in its movement, towards the ditch on defendant’s right side of the road where it stopped with one wheel in the ditch. Plaintiff’s son testified that when he saw defendant’s car it was coming on the wrong side of the road, that he steered to the right and attempted to get on the incline towards the ditch to avoid being struck by a'lieadon or front end collision, hut that defendant got on him just as he was on the brink of the ditch and capsized him into the ditch. The positions of the two cars after the collision, seem to corroborate the testimony of plaintiff’s son. Plaintiff’s version as to the manner in which the collision took place was accepted by the trial judge and we helieve his finding is borne out by all the surrounding circumstances, notwithstanding the conflict in the testimony.

Plaintiff was awarded two hundred dollars for the injury to his son, for his son’s benefit, and a further sum of two hundred and twenty dollars for injury to his automobile, altogether $420. We believe this estimate is conservative and fair.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 489
    First Circuit
    BUTLER ET AL. v. BICKHAM ET AL.
    (June 10, 1929. Opinion and Decree.)

      Amos L. Ponder, of Amite, attorney for plaintiffs, appellants.
    Purser and Magruder, of Amite, attorneys for defendants, appellees.
   LECHE, J.

This proceeding is by rule to eject defendant, Isaiah Bickham, from the occupancy of premises,’ of which according to the allegations of plaintiff’s petition, he had taken possession nine months before the filing of this suit. Another purpose of the rule is to correct the description of property of which the premises in question form part. It is also alleged that Isaiah Bickham has sold his interest in the property tó Mary and Will Tuckerson, and that he, Isaiah Bickham, has no longer any interest in the property.

We frankly confess that we do not understand the petition, owing to the apparently contradictory allegations which it contains. However, construing the nature of the petition by its prayer, the logical, and we may say, the only guide, it is evident that plaintiffs have mistaken their remedy.

Summary process may only be resorted to where specially authorized by law. C. P. 754. This is not a proceeding to eject a tenant, nor an ancillary proceeding in aid of pending litigation, and we know of no law sanctioning the summary ejectment of a person who, without right or title takes possession of property, and none is pointed out by plaintiff.

The district judge dismissed plaintiffs’ petition as in case of non-suit, reserving to them the right to set up title in a petitory action. We believe that he has properly disposed of the ease, and it is therefore ordered that his judgment be affirmed.


text:
    No. 479
    First Circuit
    SOUTHERN HARDWARE & WOODSTOCK CO., LTD., v. SMITH
    (June 10, 1929. Opinion and Decree.)
    George Ginsberg, of Alexandria, and Carroll Buck, of Amite, attorneys for plaintiff, appellee.
    Adrien Schwartz, of Covington, attorney for defendant, appellant.
   LECHE, J.

This appeal is from an order of executory process.

Plaintiff alleges itself to be the holder and owner of four certain promissory notes secured by chattel mortgage upon some automobile building or repairing machinery. It prays for citation and ordinary process upon defendant and for judgment after legal delays. It further prays for executory process, which latter process was ordered by the clerk of court to issue as prayed for. It is to this order of executory process that the present appeal was taken. It does not appear whether ordinary process has issued or. not, but that is foreign to the questions involved in this appeal.

Appellant complains that executory process issued without sufficient or proper authentic evidence.

Plaintiff styles itself the Southern Hardware & Woodstock Co., Limited. The notes are payable to the order of the Southern Hardware and Woodstock Company, and there is no authentic evidence of the transfer of the notes from the payee to the plaintiff.

The act of chattel mortgage, annexed to the petition, says the notes are dated this day, March 30, 1928, the date of the act, but the notes also annexed, are dated March 28, 1928.

These variances are fatal to the order. Hackemuller vs. Figueroa, 125 La. 307, 51 So. 207; Kreher vs. Theisman’s Estate, 125 La. 600, 51 So. 656.

For these reasons it is now ordered that the order of executory process herein issued, January 18, 1929, and signed W. E. Blossman, clerk of court, be annulled and set aside at plaintiff’s costs.


author: ELLIOTT, J.

text:
    No. 495
    First Circuit
    NEWSOM v. I. C. R. R. CO.
    (June 10, 1929. Opinion and Decree.)

      Robert S. Ellis, of Amite, attorney for plaintiff, appellant.
    Carroll Buck, of Amite, attorney for defendant, appellee.
   ELLIOTT, J.

Joseph Newsom claims of the Illinois Central Railroad Company' damages amounting in the aggregate to $1400. The items claimed are: $350 on account of the destruction of plaintiff’s automobile; $1000 on account of pain, mental anguish and bodily injuries, and $50 for loss of time from work.

The defendant excepted to plaintiff’s demand on the ground that his petition did not disclose a right or cause of action.' The exception was sustained and the suit dismissed.

The plaintiff has appealed.

The petition alleges in substance and effect that the Illinois Central Railroad Company is a common carrier, engaged in hauling freight and passengers over tracks, switches, sidings and spurs owned by it, and other persons and corporations.

That one of the spurs connecting with said railroad is owned by the National Sand & Gravel Co., Inc., and is being used to transport sand and gravel from its pit on Tangipahoa River in a westerly direction, to the main line of the railroad at a point about one-half mile north of the depot in the town of Amite, La., said spur crossing two streets, Duncan Avenue and Laurel Street, to said point.

That permission was granted by the town of Amite City to the National Sand & Gravel Company, or its predecessors, to build said switch or spur track across Duncan Avenue and Laurel Street, with the proviso that no train should be run over said spur or switch, on Laurel Street, between the hours of 7 p. m. and 7 a. m.

That on April 12, 1927, at about the hour of 8 o’clock p. m., accompanied by a couple of friends, he got into his automobile near Hayden’s market, and started for a ride. Going up Laurel Street at a reasonable and lawful speed, to the point where said switch or spur track crosses same, he suddenly noticed that flat cars loaded with gravel and sand were blocking the crossing, but too late to stop his car.

That as said switch or spur is built up about 2y2 or 3 feet higher than the street, his automobile ran into and wedged itself under one of said flat cars, near the east of same. That his view ahead was obstructed by a street light 15 or 20 feet south of the crossing. That in entering on the crossing he relied on and had the right so to do, upon the clause in the franchise of the said sand and gravel company’s predecessors, under which it was prohibited in using said street, to operate trains across it between the hours mentioned. That said accident was caused solely by the gross negligence, carelessness and illegal acts of said Illinois Central Railroad Company, its agents and employees in the way stated.

The acts and failure to act enumerated as constituting faults on the part of said railroad company, entitling him to damages against it on account of pain, mental anguish, bodily injuries, bruises, shock and loss of time are as follows: First, switching its freight cars across said street between the hours prohibited by said ordinance. Second, placing its cars across said street, so elevated above the level of the street and just north of said street lights in a way that same can not be seen at night from an automobile going north on said, street. Third, its failure to place a watchman on the south side of said crossing to flag approaching autoists.

It was evidently the opinion of the judge a quo, and it is also the opinion of this court that plaintiff admits negligence Tn himself in running into cars that he saw ahead of him on a railroad crossing in his immediate front.

According to, his averments the cars were out open to his view, blocking a railroad crossing, which he knew existed on said street, at the time he started on his journey. He does not claim to have stopped, looked nor listened, nor to have taken any precautions, until he was so close to the railroad that he could not stop. If he was blinded by the street lights as he claims to have been and could not see the railroad and the flat cars thereon in the way he was going he should have stopped until he could see that the railroad crossing was safe. Lopez vs. Sahuque, 114 La. 1005, 38 So. 810; Adams vs. Arkansas L. & G. Ry. Co., 127 La. 567, 53 So. 865; Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367.

The exception of no cause of action as regards his demand on account of pain, mental anguish, bodily injuries, bruises, shock and loss of time, was properly sustained.

But in connection with the above the plaintiff further alleges that: “When the employee of the said railroad company in charge of said train, came to the scene of the accident, he gave the signal to the engineer to pull up, thus dragging his automobile along with said car under which it was wedged, until it came into contact with a telephone pole, just south of said, street and north of said spur, entirely demolishing it, causing him the total loss thereof.” That said accident was caused, etc., “by ordering its engineer to pull up, while the automobile was wedged under said flat cars, causing it to be dragged against said telephone pole, which totally destroyed and demolished it.”

If the railroad company, after knowing that his automobile was wedged under its stationary car, gave orders which resulted in its total destruction, it may be liable to the plaintiff for the value of the car, at the time the order to pull up was given. The alleged liability of the railroad company on this account, is entirely independent of plaintiff’s claim against it on account of his pain, mental anguish, bodily injuries, bruises, shock and loss of time.

The exception as regards this alleged liability, should therefore in our opinion have been overruled.

The judgment appealed from, to the extent that same sustains the exception of no cause or right of action to plaintiff’s demand for pain, mental anguish, bodily injuries, bruises, shock and loss of time was correct and is now affirmed. But in so far as same sustains the exception to his demand against the railroad company for having destroyed his automobile after seeing it wedged under its cars, it is erroneous and will be to that extent annulled, avoided and set aside.

And it is now ordered that the judgment appealed from to the extent that same sustained the exception of no cause or right of action to plaintiff’s demand on account of the destruction of his automobile, after it was seen wedged under said flat cars, be annulled, avoided and set aside and the said exception is to that extent overruled and the case remanded to the lower court for further proceedings and as the law requires.

Defendant and appellee to -pay the cost of appeal. The other cost to abide the final result of the case.


author: JANVIER, J.

text:
    No. 10,561
    Orleans
    ALLEN DOUGLASS & CO. v. MARINE BANK & TRUST COMPANY
    (May 27, 1929. Opinion and Decree.)
    Jas. N. Brittingham, Jr., Russell J. St. Paul, of New Orleans, attorneys for plaintiff, appellant.
    Terriherry, Young, Rault and Carroll, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

J. H. Pugh owed Marine Bank & Trust Company $2,000, represented by a note for that amount, which note was secured by another note for $3,000 made by a third person and bearing the indorsement of still another person. Allen Douglass & Company, plaintiffs, had, or claimed to have, an interest to the extent of $1,000 in the collateral note. An arrangement was made by which Marine Bank & Trust Company agreed to increase the loan to Pugh to $3,000, with the understanding that $1,000, the proceeds of the additional loan, should be deposited with Marine Bank & Trust Company in the name of Allen Douglass & Company, and with the further understanding that a certificate of deposit in the name of Allen Douglass & Company should be issued by the bank and should be pledged by Allen Douglass & Company to the bank as security for the additional loan. In transmitting the certificate of deposit, Allen Douglass & Company, the owners thereof, addressed to Marine Bank & Trust Company a letter in the following words and figures, to-wit:

“New Orleans, Louisiana, August 21, 1920.
“Marine Bank & Trust Company,
“New Orleans, Louisiana.
“Gentlemen:
“We enclose herewith Certificate of Deposit, No. 121, dated this date, for $1,000.00, payable on demand, which Certificate we hereby hypothecate and pledge to you as collateral to a note' of J. H. Pugh, for $3,-000.00, dated today and payable November 4th, 1920.
“When this note is paid by Mr. Pugh, it is understood that you are to return the Certificate of Deposit to us.
“In the event that Mr. Pugh does not pay the note, you are authorized to cash the Certificate, at any time, at your option, and apply it on the note in question.
“Very truly yours,
“(SGD) Allen Douglass & Co.”

Pugh paid on account of the $3,000 loan and the interest thereon a sum sufficient to reduce the balance to exactly $1,000.

Thereafter Marine Bank & Trust Company, having come to the conclusion that it could not collect the balance of the loan in any other way, in accordance with the letter of August 21st of Allen Douglass & Company quoted above, appropriated the amount covered by the certificate of deposit and thus paid to itself the balance due on the Pugh loan.

As the certificate of deposit had earned interest at 3 per cent for three years, there was a credit on the books of the bank of $105 and the bank sent to Allen Douglass & Company a letter on September 19, 1D23, enclosing its check for $105, representing the said interest.

Allen Douglass & Company returned the said check, claiming that, in addition thereto, the bank should turn over to them the collateral note to which we have- above referred, taking the position that the bank knew that they were interested in the said note to the extent of $1,000 and that, since they had paid the debt of Pugh, they were entitled to be subrogated to the bank’s rights against Pugh and to Pugh’s rights in and to the said collateral note. Our attention is directed to Article 2161 R. C. C., which provides that legal subrogation in certain instances takes place as a matter of right. Plaintiffs contend that they were sureties for Pugh and that since, as sureties, they paid the debt of Pugh, as a matter of right they were subrogated to the bank’s claim against Pugh and to Pugh’s rights in the collateral note, which latter note, they contend, the bank should have turned over to them. Our attention is directed to several cases, notably:

Brown vs. Staples, 138 La. 602, 70 So. 529;

Guarantee Bank vs. Canal Land, 161 La. 253, 108 So. 472;

Serra Hijo vs. Hoffman & Co., 30 La. Ann. 67;

Gay & Co. vs. Blanchard, 32 La. Ann. 503;

Scott vs. Featherston, 5 La. Ann. 306;

Connely vs. Bourg, 16 La. Ann. 109.

It seems to us, however, that none of these cases is in point here, because, whatever, as a matter of law, may have been the rights of the parties, plaintiff, as a matter of contract, by giving to defendant written instructions, in effect said to defendant that the carrying out of those instructions would discharge in full the duties and obligations of defendant to plaintiff. If plaintiff claimed any interest in the collateral note, and if plaintiff desired to call this interest to the attention of the bank and to require the bank to protect that interest, it should have included in the letter of August 21st some statement to that effect. As we read that letter it is nothing more than a direction to the hank to the effect that plaintiff had on deposit with the bank $1,000 and that, in the event Pugh did not pay his loan) the bank should have the right to use the $1,000 towards the payment for account of Pugh. Surely, if plaintiff claimed any rights to any other collateral, they should have been asserted in that letter.

As to the $105, there is no doubt that this is due to Allen Douglass & Company.

The trial court awarded this to plaintiff and decided, that defendant should pay the costs of court, because it had not made formal tender of this amount to Douglass & Company.

Although no formal tender was made, check representing the amount was sent to Douglass & Company, and the amount was deposited in the registry of the court. Had plaintiff withdrawn the amount from the registry of the court and dismissed its suit as to the balance, we can readily see how defendant should be required to pay costs, but the mere omission of the empty formality of making tender of an amount which plaintiff had already refused to accept, and which it again refused to accept when the amount was deposited in court, seems to us to be of no importance.

It is therefore ordereu, adjudged and decreed that the judgment appealed from be and it is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Allen Douglass & Company, against the defendant, Marine Bank & Trust Company, in the full sum of one hundred five dollars ($105), and it is further ordered that there be judgment in favor of defendant, Marine Bank & Trust. Company, against plaintiff, Allen Douglass & Company, dismissing plaintiff’s suit as to all other demands, all costs to be paid by plaintiff.


author: HIGGINS, J.

text:
    Nos. 10,679, 10680
    Orleans
    JOHN BONURA & CO., INC., v. N. O. & N. E. R. R. CO. ET AL.
    (June 10, 1229. Opinion and Decree.)

      Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellant.
    Monroe & Lemann and Watts K. Leverich, of New Orleans, attorneys for defendant N. 0. & N. E. R.. R. Co., appellee.
    W. MoL. Fayssoux, of New Orleans, attorney for defendant Public Belt R R., appellee.
   HIGGINS, J.

This is a suit in which the plaintiff claims the value of two cars of watermelons alleged to have been lost under circumstances involving the responsibility of defendants. Originally, two suits were instituted, which were consolidated in the District Court, and on appeal to this court were argued together. There was judgment dismissing plaintiff’s demand and it has appealed.

The evidence shows that on August 14, 1920, Louis Guenard shipped from Bonaire, Georgia, to plaintiff at New Orleans, Louisiana, two cars of watermelons. The melons were delivered to Georgia Southern & Florida Railway as the initial carrier under a through bill of lading. The defendants, New Orleans & Northeastern Railroad Company and the New Orleans Public Belt Railroad were, respectively, the connecting and ultimate carriers. The cars arrived in New Orleans August 18, 1920, and on the same day plaintiff, as the consignee, was notified, whereupon it issued written instructions to have the cars placed on what is known as Gravier Street Team Track No. 1 of the New Orleans Public Belt Railroad.

It is plaintiff’s contention that these instructions were not followed, but we are convinced that the cars were placed in the locality mentioned at eight o’clock a. m., August 20, 1920, where they remained until August 23, 1920. About four-thirty p.m. of the afternoon of that day the cars were broken open by a number of negroes, who stole the melons.

It is argued that defendants are responsible as carriers and, in the alternative, as warehouseman.

It is apparent that the melons were stolen more than forty-eight hours after the placement of the cars in accordance with instructions of plaintiff. Under the circumstances a reasonable opportunity was afforded plaintiff for the removal of the melons from the cars. Section 4(a). of the uniform bill of lading, 64 I.C.C. 357, as adopted by the Interstate Commerce Commission, reads as follows:

“Property not removed by the party entitled to receive it within the free time allowed by tariffs lawfully on file (such free time to be computed as therein provided), after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination has been made, may be kept in vessel, car, depot, warehouse or place of delivery of the carrier, subject to the tariff charge for storage and to carrier’s responsibility as warehouseman, only, or, at the option of the carrier, may be stored in a public or licensed warehouse, or other suitable place, at the place of delivery, at the cost of the owner and there held, subject to the carrier’s responsibility as warehouseman only, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”

The first paragraph of Section 5 of the Bill of Lading is as follows:

“Property not removed by the party entitled to receive it, within 48 hours exclusive of legal holidays, after notice of its arrival has been duly sent or given, may be kept in car, depot, or place of delivery of the carrier subject to a reasonable charge for storage and to carrier’s responsibility as -warehouseman only, or may be, at the option of the carrier', removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at owner’s risk and without liability on the part of the carrier and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”

In the case of Michigan Central R. R. Co. vs. Owens & Co., 256 U. S. 427 (65 L. Ed. 1032, et seq.), the Supreme Court of the United States said:

“By referring to Sec. 5 of the bill of lading, it will be seen that it supposes a contingency and provides for its occurrence. It supposes that property may not be removed when it has reached destination, and is available for delivery, and two periods of time are provided for. One of 48 hours after notice of the arrival of the property has been sent or given. During this time there is no declaration of the relation of the railroad company to the property. The other period commences at the expiration of the first 48-hour period, during which the provision is that the property is subject to ‘carrier’s responsibility as warehouseman only.’ The comparison has its significance and must be accounted for. Realizing this, the railroad company makes a distinction. Its contention is that where delivery has been made of the property, as, it insists, was true in the case at bar, the responsibility of the railroad company as carrier immediately ceases. If, however, it is neither delivered nor removed within 48 hours after notice of its arrival, the responsibility of the railroad company thereafter is that of ‘warehouseman only.’ ”

The shipment for the loss of which this suit was instituted is an interstate shipment, and governed by Federal authority and jurisprudence. See Hartness vs. Iberia & V. R. R. Co., 297 Fed. 622. Defendants are not liable as carriers, and if there be any responsibility, it is that of warehouseman:

“If defendant is liable at all, it is liable only as a warehouseman, and its liability as such depends upon whether the goods were destroyed by reason of its fault. In passing upon the liability of a warehouseman and the burden of proof in connection therewith, the Supreme Court of the United States said:
“ ‘The Railway Company was therefore liable only in case of negligence. The plaintiff, asserting neglect, had the burden of establishing it. This burden did not shift. As it is the duty of the warehouseman to deliver, upon proper demand, his failure to do so, without excuse has been regarded as making a prima facie case of negligence. If, however, it appears that the loss is due to fire, that fact in itself, in the absence of circumstances permitting the inference of lack of reasonable precautions, does not suffice to show neglect, and the plaintiff having the affirmative of the issue must go forward with the evidence. Southern Railway Co. v. Prescott, 240 U. S. 640, 36 S. Ct. 473, 60 L. Ed. 840.’”

Wood et al. vs. La. & A. Ry. Co., 158 La. 510, 104 So. 306.

It does not appear that defendants failed in any respect to exercise reasonable caution for the protection of the watermelons, and, being free from fault, are not responsible, as warehousemen, for the loss of the shipment.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 10,834
    Orleans
    SIDNEY KERN & CO. v. HARPER
    (June 10, 1929. Opinion and Decree.)

      Weiss, Yarrut and Stich, and Edward Dinkelspiel, of New Orleans, attorneys for plaintiff, appellee.
    Andrew B. Booth, Jr., of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues for $496.09, the balance claimed to be due for goods sold and delivered. Defendant contends that he did. not purchase the goods and that they were not delivered to him, but were secured by a friend of his, a Mr. Thomas R. Macy.

Defendant maintains that he accompan ied Macy to the Louisville & Nashville freight shed, where plaintiff conducts a part of its business and introduced Macy to Sidney Kern, one of the partners comprising the plaintiff firm.

He testifies that he went with Macy merely for the purpose of introducing Macy to Kern and for the purpose of asking Kern whether he thought Macy could make a living selling potatoes and onions.

Plaintiff contends that Harper, defendant herein, called on him with Macy and arranged for the purchase of goods to be delivered either to him or to Macy, the understanding being that Harper would pay the bills.

Mr. Boeckelmann, a salesman for Kern & Company, testifies that he called on Hanper several times with reference to payment and that Harper, at no time contended that he was not responsible for the debt, but at various times, promised to make payment, always asking for additional time.

It seems most peculiar that Harper should have found it necessary to accompany Macy to a conference with Kern for the purpose of asking Kern whether he thought Macy could make money selling onions and potatoes, and we are quite convinced that the real reason for that conference was to arrange for the purchase, on Harper’s credit, of merchandise to be delivered to him or to Macy, for his account.

The trial court believed that the credit had been extended to Harper at Harrper’s request and, therefore, rendered judgment against him. Even if the evidence left us in doubt on this point we would be inclined to follow the well-known rule that the opinion of the trial court on a question of fact should not be reversed except in a case of manifest error.

During the pendency of this trial, plaintiff has been adjudicated bankrupt, and, on motion duly filed, T. J. Bartlette, trustee in bankruptcy of Sidney Kern & Company, has been made party plaintiff herein.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be amended and made to read in favor of T. H. Bartlette, trustee in bankruptcy of Sidney Kern & Company, and, as thus amended, affirmed at the cost of appellant.


author: WESTERFIELD, J.

text:
    No. 11,088
    Orleans
    GREATER NEW ORLEANS HOMESTEAD ASSN. v. KORNER
    (May 27, 1929. Opinion and Decree.)
    J. D. Dresner and Monroe & Lemann, of New Orleans, attorneys for plaintiff, appellant.
    W. O. Hart, of New Orleans, attorney for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Appellee moves to dismiss this appeal upon the ground that the judgment appealed from has been consented to and acquiesced in, citing C. P. 567, and Furex vs. Judge, 33 La. Ann. 927.

The motion to dismiss was filed on the 11th day of May, 1929. The transcript of appeal was filed July 22, 1927, and the case fixed for trial December 15, 1928.

The motion must be denied since it was not filed within three days after the transcript was lodged in this court or the case fixed for trial. Saxon vs. Southwestern Brick Co., 113 La. 637, 37 So. 540.

The exception to the rule mentioned in Key vs. McCall, 122 La. 978, 48 So. 426, is without application here since the acquiescence relied upon in the motion to dismiss, is not alleged to have occurred after the lapse of the three-day period, in which ordinarily the motion should have been filed.

For the reasons assigned the motion to dismiss is denied.


text:
    No. 11,576
    Orleans
    FREEMAN & FREEMAN v. SEELING ET AL.
    (June 10, 1929 Opinion and Decree.)

      Weiss, Yarrut and Stich, of New Orleans, attorneys for plaintiff, appellant.
    Joseph Lautenschiaeger, of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiff and appellant, real estate brokers, filed an application to deposit money in the registry of the court, impleading the seller and purchaser, in a real estate contract, for the purpose of determining who was the owner of the deposit, on account of the purchase price.

The petition shows that Freeman & Freeman, real estate brokers, obtained from Mrs. Joseph Seeling a written agreement to. sell a piece of immovable property and that Miss Agnes McCaffery accepted the offer. The agreement provided that Mrs. Seeling was to pay 4 per cent commission to the real estate agent; the deposit was not to be considered as earnest money and both parties to the contract reserved the right to demand specific performance. Neither party to the agreement has sought specific performance.

Miss McCaffery, the purchaser, and one of the defendants, filed an exception of no cause of action, based upon the following grounds: First, that the entire deposit should have been deposited in the registry of the court, without deducting the real estate agent’s commission of 4 per cent; and second, that plaintiff, as depositor, could not compensate or set off their claim for commission against the deposit.

The exception was maintained and plaintiff’s suit dismissed.

The application to place the money in the registry of the court was made in accordance with the provisions of Act 123 of 1922. This act does not give the depositor the right to deduct its commission from the deposit, as plaintiff and appellant sought to do in this case. The act requires the money to be deposited and does not give the depositor the right to deduct any sum whatsoever from the deposit.

The depositary must restore the money deposited with him. C. C. 2924.

The depositary cannot plead compensation against a deposit. C. C. 2210. Derbes vs. Blache et al., 10 La. App. 424.

“The depositary must restore the thing deposited only to him who delivered it, or in whose name the deposit was made, or who was pointed out to receive it.” C. C. 2949. Gastauer vs. Gastauer, 152 La. Ann. 959, 94 So. 897.

“The percentage paid by a purchaser on his bid is a deposit to which compensation cannot be pleaded.” Succession of Cox, 32 La. Ann. 984.

“The depositary cannot withhold the thing deposited on a pretense of a debt due to him from the depositor on an account distinct from the deposit, or by way of offset.” C. C. 2956.

Thus, it will be seen that neither under the provisions of Act 123 of 1922 nor the articles of the Civil Code is a depositary entitled to deduct his ' commission, and deposit only a portion of the money in the registry of the court.

The contract places the obligation of paying the commission on Mrs. Seeling and not on Miss McCaffery. As the contract has not been carried out and neither party placed in default, to grant plaintiff and appellant relief sought, might be forcing Miss McCaffery to pay its commission, when she did not agree to do so.

For the reasons herein assigned the judgment appealed from is affirmed, at appellant’s cost.


text:
    No. 11,143
    Orleans
    MARX v. LANDE
    (June 10, 1929. Opinion and Decree.)
    Frederick Marx, of New Orleans, attorney for plaintiff, appellee.
    M. C. Scharff, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by an attorney for a fee. The lower court allowed him $150, which amount is said to be excessive.

The defense is, first, that the plaintiff had contracted to perform the services for a fee of 10 per cent of the amount involved, and secondly, that the amount allowed by the trial court is excessive.

We find that the first contention of defendant has not been sustained by the evidence, and, as to the second defense, the evidence convinces us that the professional services involved were considerably prolonged and somewhat laborious. The business reputation and integrity of defendant, Lande, was involved, and therefore the amount claimed in the suit becomes immaterial in fixing the attorney’s fee. The record also shows that the attorney successfully defended the suit. Consequently the fee allowed was not excessive.

For the reasons assigned, the judgment appealed from is affirmed.


author: JONES, J. JANVIER, J.

text:
    No. 10,670
    Orleans
    CLIFFORD F. FAVROT SUPPLY CO., INC., v. BACHEMIN & UNITED STATES FIDELITY & GUARANTY CO.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    (April 23, 1929. Writ of Certiorari and Review Granted by Supreme Court.)
    (July 1, 1929. Opinion and Decree Supreme Court.)
    Sanders, Baldwin, Viosca and Haspel, of New Orleans, and Edward Dubuisson, of Opelousas, attorneys for plaintiff, appellant.
    Spearing and Mabry, of New Orleans, attorneys for defendants, appellees.
   JONES, J.

On June 18, 1923, the Sixth District Building and Loan Association, as owner, made' two separate contracts with Bachemin to build for $7,100 each, two houses on Roman Street between Cadiz and Jena, on adjoining lots, one lot described as being one hundred and twenty feet from Jena and the other one hundred and twenty feet from Cadiz Street. The U. S. Fidelity & Guaranty Company signed both contracts as surety under Act No. 139 of 1922. Plaintiff in this case, who furnished material for the “Roman Street job” in the sum of $369.15, sues the contractor and his surety on both bonds for this amount. Attached to petition are ten material bills for brick, sand, lime, etc., running from October 2, 1923, to November 2, 1923, eight of which are addressed to P. J. Bachemin, “Roman and Jena Streets” and the other to him on “Roman between Jena and Cadiz Streets.”

After filing an exception of vagueness, ■which was properly overruled, the contractor disappeared from the suit and there was judgment by default against him for the full amount.

The surety company, having obtained the contracts and bonds sued on by a prayer for oyer, then filed exceptions of vagueness and inconsistency of demand, which were properly overruled.

It then answered admitting that it had signed as surety the contracts which had been made by the Sixth District Building and Loan Association and Bachemin — one for the account of A. Picone and the other for account of Joseph Reyer, but it urged two special defenses:

First, that it had been released by plaintiff’s failure to record its claim in the mortgage office within thirty days from acceptance of contract.

Second, that its liability on each bond was limited to the materials used in' the building which that bond covered. It finally prayed for judgment in its favor against Bachemin if the court should find that it was liable under the .circumstances.

The trial judge correctly decided with plaintiff that there was nothing in the first defense, as it had been repeatedly held that the filing of claims in the mortgage office within thirty days was not necessary in order to hold the surety. On this point see:

Shreveport Mutual Bldg. Assn. vs. Whittington, 141 La. 41, 74 So. 591.
Audubon Homestead Assn. vs. A. Stef Lumber Co. et al., 158 La. 1054, 105 So. 62.
Fidelity Homestead Assn. vs. Kennedy & Anderson, 158 La. 1069, 105 So. 64.
Madison Lumber Co. vs. Bachemin, 166 La. 1066, vol. 118, No. 5, So. Rep., p. 141.
The trial judge maintained the second defense on the ground that plaintiff failed to show how much material went in each building; that such showing was essential to maintenance of this special right granted by a special law under the doctrine of “strictissimi juris.”

The evidence shows the lots were vacant and that they were located in the middle of the block, with no dividing line between them, that goods were ordered for the Roman Street job and were delivered' somewhere on one or the other of the two lots, but no separate account was kept for the materials. There is no proof as to how much material was used in each building and the sole question before us is the necessity vel non of such proof under all the existing circumstances.

In the case of Graphic Arts Building Company vs. Union Indemnity Company et al., 163 La. 1, 111 So. 470, the plaintiff entered into a building contract for the construction of a building in the City of Shreveport on which the Union Indemnity Company furnished a bond as surety. The Koerner Engineering Company furnished certain materials which it delivered for use in the building. Thereafter, a concursus was provoked and on the trial of the case it appeared that some of the materials furnished by the Koerner Engineering Company were not used in the building. The Court, in allowing the full claim of the materialman, said:

“In these circumstances we do not think it was required of the appellant to follow up the shipment of the materials furnished and to see that all of such materials actually went into the building being constructed. * * *
“The contractor is unquestionably liable for the material furnished and delivered by the appellant and used by him. He could not be heard to deny his liability under the evidence.
“The liability of the surety company in this instance is coequal with that of the contractor.”

Reasoning by analogy, as the materials were not ordered specially for either job but simply for the Roman Street job, it was not legally essential for the material-man to follow up the shipment of the materials furnished by him in order to see which of the materials went into one building and which went into the other. Had the plaintiff proceeded to sue the surety company and the contractor alleging that it had furnished the goods and materials on one of the jobs only, under the evidence presented and the holding in the case of Graphic Arts Building Company vs. Union Indemnity Company, supra, plaintiff would have been entitled to recover. Therefore, it makes no difference that the two contracts and bonds are sued on. Delivery and use having been shown and no plea having been made that the bonds were exhausted, the surety, who had bound and obligated itself to pay for the materials used in the buildings in the event that the contractor failed to do so, has certainly suffered no damages.

The fact that the plaintiff alleged in its petition and showed that two contracts were made by the same surety, does not in any way prejudice the rights of the surety company. Under the provisions of Act 139 of 1922 (the building contract law, which applies in this case), the surety is limited to such defenses as the contractor could make. The contractor apparently recognized that he could not make this defense and therefore, practically confessed judgment.

If the contention of the surety company be correct, that plaintiff must show amount of material delivered on each lot, then plaintiff, under the peculiar circumstances of this case, would have had to call on a surveyor to ascertain the dividing line between the two lots as there was nothing to show the boundaries. The surety company is in exactly the same position as if there had been only one contract and one bond and he certainly is not damaged as the contractor admittedly owes the indebtedness. The contractor could not possibly urge such a defense because he, of all men, knows what material was used in each house. The law was intended to protect the material furnisher and it specifically provides that the surety company can urge no defense which the contractor cannot urge. To permit the surety company to escape liability on such a narrow technicality would largely nullify the purpose and intent of the law and would be contrary to the spirit and purpose of the act as shown by many decisions of the Supreme Court and the other appellate courts of this State.

In Haynesville Lumber Co. vs. Casey et al., 165 La. 1067, vol. 116, So. Rep., No. 559, the court said, on page 560:

“It was not required of the plaintiff to show that every plan sold and delivered to the contractor for use in the school building was actually so used. If that were the rule in actions by materialmen against the contractor and surety, then the furnishing of a bond to secure materialmen would be an idle formality.”

And in Fidelity Homestead Association vs. Kennedy & Anderson, 158 La. 1059, 105 So. 64, the Court said this:

“* * * but the Legislature may well have found that sureties on bonds given in judicial proceedings or on building contracts, ‘or otherwise,’ often resist payment of just claims against them upon the flimsiest of pretexts; and by technical pleas and groundless defenses do often delay payments beyond all reasonable limits * *

The Supreme Court, in the case of Madison Lumber Co. vs. Bachemin et al., 166 La. 1066, decided July 2, 1928, Southern Reporter, vol. 118, page 141, in an exactly similar suit where a different material furnisher had sued the same contractor and same surety for material furnished for these very two houses, gave judgment for plaintiff. It is true that in that case the court said there was no doubt that the lumber sold and delivered for each job was actually used on that job, but the court found no irregularity in combining the two contracts and the two bonds in one suit.

Defendant cites the case of Silver vs. Harris et al., 165 La. 83-91, 115 So. 376. We do not think that case in point, as the plaintiff there was a labor foreman and only one contract was involved in that special suit.

For above reasons, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Clifford F. Favrot Supply Co., Inc., and against the defendants, Paul J. Bachemin and the United States Fidelity & Guaranty Company, jointly and in solido, in the full sum of three hundred sixty-nine and 15-100 dollars ($369.15), with legal interest from November 6, 1923, until paid, and all costs.

It is further ordered, adjudged and decreed that there be judgment in favor of defendant, United States Fidelity & Guaranty Company, over and against the defendant, Paul J. Bachemin, in the full sum of three hundred sixty-nine and 15-100 dollars ($369.15), with legal interest from November 6, 1923, until paid, and all costs.

JANVIER, J.

dissenting. I readily concede that due to the coincidence that the same surety signed both bonds involved in this matter, and that the contractor defaulted in both cases, substantial justice is done to all parties by the decree rendered by the majority of the court. I believe, however, that the holding of the majority is not in accord with the jurisprudence of the state, and establishes a principal which, in other cases, will produce results not contemplated nor desired.

I agree that it is not necessary for a materialman to follow his material and to show that every item furnished by him went into the building and that, under the jurisprudence, all that is required of him is to show that it was delivered “on the job.” I believe that the material for these two jobs should have been ordered and billed separately, and if it had been, all that the materialman would have been required to do would be to show that each order had been delivered at or on the property on which the respective building was being erected. Here, however, there are two separate contracts, two separate bonds and two separate pieces of real estate, and the material chargeable to each of the contracts should have been billed against that contract and not against all the work that was going on in that square.

Suppose one of the jobs had been completed by the contractor without loss, and the loss on the other had fexeeeded the amount of the bond on that other contract. Would it be eq,uitable to hold the surety just because it happened to be the- same on both contracts, not only for the full amount of the bond on the contract on which the contractor had defaulted, but also for so much of the other bond as might be required to make good the deficiency resulting from the fact that the loss on the other job exceeded the amount of the bond?

Suppose, again, in the case before us, that there had been two different sureties, would it be equitable to allow the material-man who has furnished the material for both jobs, but who has not been sufficiently alert and, diligent in the protection of his interests to bill the orders separately, to require of the sureties to fight out between themselves how much of the bill each of them owes.

In the case before us it appears that there were two contracts and two bonds, and in each case both were recorded in the mortgage office. This recordation is required so that all furnishers of material may have full knowledge as to who is the surety and as to what are the conditions of the contract and the bond. If the materialman involved here had been diligent in the protection of his interests, he would have known that there were two jobs and that, in order to hold the surety on either of the jobs, he should furnish the material for that particular job, and he could not be allowed to claim that, just because he furnished material to the contractor for his general operations, he could select which bond he wanted to charge that .material against; or, better still, charge it all against both.

If he cannot trace his material into each building he must at least show that he furnished so much for one building and so much for the other.

Counsel for the materialman concedes that if the two buildings had been on different streets, there would have been a necessity for the materialman to bill each job separately — so much for the job on this street and so much for the job on that one. If, then, it is necessary to separate the bills under those circumstances, where the material must be physically separated, how much more necessary it is to bill it separately in a case like the one before us, where the material may so easily become confused.

We are told that it is not the custom for materialmen to bill supplies against a particular job, but that they bill them against a general open account of the contractor. My answer is that the fact is, on the contrary, that all careful material-men do bill the material sold against the particular job into which it is expected to go. Of course, the charge is made against the contractor, but the general custom is to enter on the books a separate account for each job. Thus one contractor may, and certainly should, on the books of one materialman, have several different accounts ■ — this one on that job, this one on the other job, etc.

By allowing the material to be furnished as it was here, the surety is in effect told: ‘‘You are liable in each case for the full amount of both bonds, and if either contract does not work out profitably, you may be held fur the aggregate amount of the bonds.”

For these reasons I respectfully dissent.


text:
    No. 11,312
    Orleans
    FUHRMANN ET AL. v. KEENAN
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (March 26, 1929. Writ of Certiorari and Review Granted by Supreme Court.)
    (June 4, 1929. Opinion and Decree Supreme Court.)

      A. R. Christovich, of New Orleans, attorney for plaintiffs, appellants.
    E. R. Mabry, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit under the Louisiana Workmen’s Compensation statutes. Defendant admits that, at the time of the death of decedent, he was employed by defendant, and that his weekly wages were $15.40. The defense is that the claimant, who is the father of the decedent, was not dependent upon decedent to any extent at the time of his death, and had not received any assistance, financial or otherwise, from the decedent for several years prior to his death.

The case is to some extent unique in that only one witness was placed on the stand and that witness was claimant himself. Defendant asks us to disbelieve claimant and to refuse him compensation. Claimant admits that for the year prior to the death of decedent he had received from him very little financial assistance, but his testimony is very plain that he did receive during that year at least $25, that is to say. $5 or $10 (claimant does not remember which) in January or February, 1927; $10 about July 4, 1926, and $10 during May, 1926, making a total of at least $25. It is true that claimant’s memory is not particularly good and that some of his statements seem improbable. They are, nevertheless, possibly true, and in the absence of any contradictory evidence we are not prepared to disregard them altogether.

How much, then, is claimant entitled to?

In Act No. 85 of 1926, Sec. 1 appears the following:

“For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent .upon his earnings for support at the time of the accident and death, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

Let us now apply this paragraph to the present situation.

Decedent at the time of his death was earning $15.40 per week. Sixty-five per cent of this is $10.01. This is the weekly amount to which claimant would have been entitled had he been wholly dependent. In order to determine the amount to which he would he entitled as partially dependent, we must ascertain what part of his earnings during the year previous to his death he sent to claimant. During the year previous to his death, he seems to have worked one-half the time at an average weekly wage of $15.40. He, therefore, during that year, earned $400.40. Of this amount he sent to claimant $25, or one-sixteenth. If the minimum set forth in the statutes were not applicable here, claimant would therefore be entitled to weekly compensation for three hundred weeks, amounting to one-sixteenth of $10.01, or 62y2 cents per week. Although under the original Act No. 20 of 1914, sub-paragraph (e) of paragraph 1 of section 8, the minimum did not seem to apply to partial dependents, there can be no doubt that under the act of 1926 the minimum does apply, and that therefore claimant is entitled to $3 a week for three hundred weeks, instead of 62y2 cents per week, which he would be entitled to except for the minimum fixed in the act. Counsel does not dispute this.

As to the amount expended by claimant for funeral and incidental expenses, we are again asked to disregard the testimony of claimant as being so highly improbable as to be impossible of belief. We readily admit that the testimony does seem improbable, but it is by no means impossible, and we do not feel justified in disregarding it and in rendering judgment contrary to it, in view of the fact that there is no evidence whatever to contradict it.

Our attention is called to the fact that on January 16, 1929, Mrs. Agnes Fuhrmann, mother of the decedent, died at her home in St. Tammany Parish, Louisiana. Inasmuch as we are of the opinion that the minimum compensation payable is $3 per week, her death will not affect the amount to be awarded, as claimant, although he is the only surviving parent, is entitled to the minimum award of $3 per week.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is 'annulled, avoided and reversed, Snd there is now judgment in favor of claimant and against defendant, condemning defendant to pay to claimant $3 a week for three hundred weeks, together with the further sum of $150 funeral and incidental expenses and all costs.


author: PER CURIAM.

text:
    No. 11,628
    Orleans
    AUTOMOBILE SECURITY CORP. v. McESTOW
    (June 24, 1929. Opinion and Decree.)

      George TJntereiner, of New Orleans, attorney for plaintiff, appellant.
    Cyril Dumaine, of New Orleans, attorney for defendant, appellee.
   PER CURIAM.

The issues of fact which alone are involved in this litigation seem to have been correctly determined by the trial court.

The judgment appealed from is, therefore affirmed.


author: WESTERFIE'LD, J.

text:
    No. 11,801
    Orleans
    M. L. & T. R. R. & S. S. CO. v. FRIEDMAN ET AL.
    (June 10, 1929. Opinion and Decree.)
    John E. Fleury, of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendants, appellees.
   WESTERFIE'LD, J.

This is a suit by a railroad company for the expropriation of certain property belonging to the defendants, situated in the 'Parish of St. Charles, for use as additional depot facilities at Boutte Station. An exception of no cause of action was maintained by the judge, a quo, and plaintiff has appealed.

The petition alleges that plaintiff was a common carrier, organized and chartered by Act 37 of 1877, as amended by Act 12 of 1879; that it operates a railroad from the City of New Orleans. to several parishes; that it desires to construct loading and unloading ¡platforms and other buildings, as are necessary to increase its railroad facilities at Boutte Station, and, that in order to do so, it is necessary that it acquire the certain tract of land described in its petition and belonging to defendants; that it has been unable to obtain the desired property by private sale for the reason that the defendants have steadfastly refused to accept a reasonable sum for the said property, which it desires to expropriate; that it desires to obtain an order of court appointing commissioners and appraisers in accordance with the provisions of the Acts of 1877 and 1879, referred to.

The exception of no cause of action is addressed to the form of the proceeding, it being contended that Act 37 of 1877 is in derogation of common right and must be strictly construed, and that it has been superseded by the general expropriation law, with the provisions of which, plaintiff’s petition does not comply.

It is stated that the Act of 1877 and the amendment of 1879 plainly show that the purpose of incorporating the plaintiff company was to authorize it “to construct, build and thereafter to own and maintain and use a railroad * * * to run from or near Morgan City, La., to such point on the Sabine River in Louisiana, south of the thirty-first parallel, to be selected by the Board of Directors” and “to own, maintain, and run the road now completed between New Orleans and Morgan City; together with all its franchises, immunities, privileges and rights”; that the railroad referred to, as completed, was the New Orleans, Opelousas and Great Western Railroad, chartered under Act 149 qf 1853, for the purpose of constructing a railroad from Algiers to Bayou Lafourche, to Berwick Bay, through the Parish of St. Landry near the town of Washington to the Sabine River to El Paso, in the State of Texas; that the charter of the New Orleans, Opelousas and Great Western Railroad Company made no particular mentiun of the right to expropriate private property, and that, therefore, since the plaintiff company was only authorized to purchase the then existing railroad, it can have no greater rights than the original company, consequently it must expropriate under, and in compliance with, the provisions of the general expropriation law.

The purpose of Act 37 of 1877 as declared in its title was “to incorporate the Morgan’s Louisiana and Texas Railroad and Steamship Company * * * to declare and to define the power and liability of said Company; to grant the right to authorize the expropriation of land; * * * and to vest in said company the right to exercise all powers incidental to and necessary for the building and maintenance of railroads to the State of Texas, and in Northern Louisiana and Arkansas.”

Section 5 of the Act describes the objects and purposes for which the corporation is organized, and for which power is granted for the accomplishment, to be quite varied, requiring thirteen separate paragraphs for statement. Paragraph 10 provides that one of the objects shall be “to purchase or lease from any railroad company or corporation, any railroad, charter, franchises, property and appurtenances' thereof, and maintain and use the same as a part of the property of this company.” ,

We find no basis for the argument that the powers conferred upon the Morgan’s Louisiana & Texas Railroad & Steamship Company are limited to those granted to the New Orleans, Opelousas and Great Western Railroad, under the Act of 1853.

Act 12 of 1879 amended Sections 6, 20 and 28 of Act 37 of 1877. Section 20 of the Act of 1877 amended by this act, dealt with the subject of expropriation, but the amendment is of no importance here.

In Hayes vs. M. L. & T. R. R. & S. S. Co., 117 La. 953, 42 So. 150, where it was contended that Section 12 of Act 37 of 1877, which provided that the plaintiff railroad could only be sued at New Orleans, the domicile fixed in said act, was repeale'd by Act 93 of 1898, providing that all public carriers might be sued for damages for failure to deliver freight, either at the point of delivery or at the domicile of plaintiff, at plaintiff’s option, the Supreme Court held that the special provisions of Section 12 of the Act of 1877 had not been repealed by the general provisions of the Act of 1898. See State vs. Capdeville, 140 La. 246, 72 So. 946.

We have not been referred to any act which repeals the provisions of Act 37 of 1877 or Act 12' of 1879, upon which this suit is based, consequently those provisions have still the force of law. The petition of plaintiff drawn in accordance with the provisions of the statute referred to, in our opinion, presents a cause of action, consequently we believe that the trial court has erred in maintaining the exception.

For the reasons assigned the judgment appealed from is reversed, the exception of no cause of action is overruled and this case is remanded for further proceedings according to law and consistent with the views herein expressed.


text:
    No. 11,515
    Orleans
    JAMES H. DEMOURELLE & SONS, INC., v. HORTMAN-SALMEN CO., INC.
    (June 24, 1929. Opinion and Decree.)
    Baldwin J. Allen, of New Orleans, attorney for plaintiff, appellee.
    H. Mayo, of New Orleans, attorney for • defendant, appellant.
   HIGGINS, J.

Plaintiff sued defendant for damages resulting from an automobile collision. Defendant denied liability and pleaded contributory negligence and doctrine of last clear chance. There was judgment in favor of plaintiff and defendant has appealed.

The evidence shows that plaintiff’s automobile was going in the direction of the lake on Lapeyrouse Street, which is a two-way street, and defendant’s truck was going in the direction of the river on Lapeyrouse Street. There was a truck parked on the uptown side of Lapeyrouse Street at a forty-five degree angle with its front extending towards the center of the street. The street is twenty-two feet wide, paved and sloping towards the gutter on each side of the street. Defendant’s truck had a trailer attached to it and was going between 10 and 15 miles per hour at the time of the accident. The parked truck was in the path of the defendant’s truck and, therefore, the driver of the defendant’s truck should have slowed down or stopped so as to permit plaintiff’s automobile to proceed on its way. Instead of slowing down or stopping the defendant’s truck proceeded to go around the parked truck and there not being room for plaintiff’s and defendant’s machines to pass simultaneously, plaintiff stopped his automobile on his extreme right hand side to allow, defendant’s truck to pass between the parked truck and plaintiff’s automobile. The defendant’s truck actually passed between the two machines but the trailer struck the left front wheel and side of plaintiff’s car, knocking the wheel completely off and breaking the axle in two.

The plaintiff had the right of way and the court does not find that defendant's truck had gained the right of way by reaching the parked truck first. The driver of each machine saw the other approaching. Plaintiff had a right to assume that the defendant’s truck would not continue to proceed when it was apparent to the driver thereof, that the right hand side of the road was blocked and that there was not room enough on his left hand side for both plaintiff’s and defendant’s machines to simultaneously pass.

We have reached the conclusion that defendant’s negligence was the sole proximate cause of the accident.

The diligent counsel for defendant has cited the case of Jefferson vs. Caddo Transfer Company, 4 La. App. 377, which was an automobile accident damage case and on page 380, the court said:

“The plaintiffs carried the burden of making out their case beyond a reasonable doubt. We cannot say from the evidence that they have discharged that burden.”

We must respectfully decline to follow such a rule because it has been the uniform jurisprudence in this State, that in a civil case the plaintiff carries the burden of proving the case by preponderance of evidence but not beyond a reasonable doubt, which is the rule only in criminal cases.

As to the quantum of damage, plaintiff’s automobile being a Hudson car, plaintiff took it to the Hudson agency for the purpose of having it repaired. The evidence shows that he paid the repair bill and the representative of the Hudson agency testified that the repairs were reasonable. These repairs were caused by the accident and plaintiff had a right to have all damages caused by the defendant’s fault, properly repaired.

The judge of the lower court gave judgment for plaintiff and we find nothing in the record which would justify us in disturbing his finding.

For- the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,835
    Orleans
    LUTCHER & MOORE CYPRESS CO., LTD., v. SCHEXNAYDRE
    (June 10, 1929. Opinion and Decree.)

      Henry L. Himel and H. Lemann, of New Orleans, attorneys for plaintiff, appellant.
    P. E. Edrington, Jr., of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff brought suit to enjoin defendant from further trespassing upon certain property owned by plaintiff, and for $500.00 damages alleged to have been caused by the acts of trespass already committed.

Defendant, on a plea of minority, obtained a dissolution of the injunction preliminarily issued.

He now claims as damages attorney’s fees, which he has been called upon to expend in obtaining the dissolution of the injunction.

It is not disputed that defendant is a minor and defendant contends that, being a minor, this action cannot be maintained against him.

We find ourselves unable to concur in the view that, since defendant is a minor, an action of this kind cannot be maintained against him, and we are of opinion that, had plaintiff adopted the method of procedure outlined in our laws, he would have had no difficulty, so far as the minority of the defendant is concerned, in maintaining this action. In view, however, of the admission in oral argument and the implied admission contained in defendant’s brief, and in view of the fact that plaintiff, on learning of defendant’s minority, took no action looking to his proper representation, we are forced to the conclusion that the action of the trial judge in dissolving the injunction was correct.

That a minor is responsible for the obligations resulting from his torts, cannot be seriously disputed. Article 1874 of our Civil Code provides: “He (the minor) is not relievable against obligations resulting from offenses or quasi-offenses.” Article 2227 of the Civil Code states: “He is not restituable against the obligations resulting from his offenses or quasi-offenses.” Article 1785 of the Civil Code, among other things, provides: “The obligation arising from an offense or quasi-offense is also binding on the minor.”

If, then, the minor is responsible for the results of his offenses and quasi-offenses, he can be sued therefor. The trouble here was not the minority of the defendant, but the failure of plaintiff, upon discovering the minority, to comply with the requirements of Articles 115 and 116 of the Code of Practice. Article 115 reads as follows: “Actions against interdicted persons or minors must be brought directly against the tutor of the minor or the curator of the interdicted, person.” The first paragraph of Article 116 states: “If the minor against whom one intends to institute a suit has no tutor, the plaintiff must demand that an attorney at law be appointed to defend the suit.’-’

The failure of plaintiff to comply with these articles was responsible for the dissolution of the injunction.

Since the injunction was dissolved on motion and not as a result of a trial on the merits, reasonable attorney’s fees are allowable as damages. Globe Realty Co., Ltd., vs. Mrs. Carolina Vix, 3 Orl. App. 270 (on rehearing).

But, argues counsel for plaintiff, conceding that attorney’s fees are allowable in a case such as this, a minor cannot stand in judgment, even for the purpose of recovering those attorney’s fees.

Since the minor may be held for the result of his trespass, it is manifest that the services of an attorney to defend him are necessary, and under Article 1785, Civil Code, he may contract for necessaries if his tutor neglects or fails to supply them. It is apparent here that an attorney to defend the minor has not been furnished by his parent or tutor. It therefore appears to us that the minor is entitled to recover reasonable attorney’s fees. One hundred dollars is asked for. Seventy-five dollars was allowed by the trial court. This seems to us rather large for the services rendered, but, in view’ of the fact that the services were performed under the eye of the trial judge, we deem it advisable to accept as correct his estimate of the value of the services, particularly in view of the fact that plaintiff itself, in its petition, fixed the value of the services of its own attorney at two hundred fifty dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


text:
    No. 11,030
    Orleans
    CARR v. GEOGHEGAN
    (June 10, 1929. Opinion and Decree.)

      Bond, Curtis, Hall & Foster, of New Orleans, attorneys for plaintiff, appellee.
    Dufour, Rosen & Hammer, and Terri-berry, Young, Rault & Carroll, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is an action in boundary. The line in dispute is that which forms or should form the rear line of most of the properties fronting on the upper side of Audubon Boulevard.

The old Foucher Plantation formerly comprised the property which is now occupied by Loyola University, Tulane University and the properties fronting on both sides of Audubon Boulevard.

Defendant owns five lots fronting on the upper side of Audubon Boulevard. Plaintiff’s property fronts on Green Street, and its side line is contiguous to the rear line of a part of defendant’s property. Audubon Street is parallel to Audubon Boulevard. Green Street runs at right angles to Audubon Street but does not extend through to Audubon Boulevard but only runs to the line which we are called on to fix.

Between Audubon Street and Audubon Boulevard, as they are actually laid out there is not sufficient property to accommodate the title measurements of the various owners, and for some time there has waged a more or less acrimonious dispute between the Audubon Boulevard owners and those on the other side of the line, as to which should suffer as a result of the shortage.

It is quite evident that the line, as laid out by Henry C. Brown, surveyor, is at the point in question in this case, some two feet, eleven inches, further uptown than it should be. If the line as fixed by Brown were correct, defendant would be entitled to a depth of two feet, eleven inches, more than the other surveyors agree to.

That the Brown line is not correct is not seriously disputed. Eustis, the survey- or appointed by the trial court, and Mr. Frank A. Waddill, another surveyor of great experience and reputation, found, that at the point mentioned, it is in error to the extent mentioned.

So far then as the question of the location of the correct line is concerned, we have no hesitancy in agreeing with the trial judge that plaintiff is correct.

The serious defenses, however, are a plea of prescription of ten years and a contention that there can be no boundary suit where there has been a visible separation of the properties by a hedge or fence, as there was here.

In support of his plea of prescription of ten years, defendant alleges that he and his authors in title, have had actual physical possession of the small strip of land in question for more than ten years and that this possession has been under color of title.

In support of the contention that there can be no action in boundary where there has been a visible separation of the property, defendant calls our attention to the case of Opdenwyer vs. Brown, 155 La. 617, 99 So. 482, in which the Supreme Court said:

“As long as there exist no physical bounds, whether because none have ever been placed or because those once placed have disappeared, the action to place or replace them cannot be prescribed against; for every one is entitled at all times to have his estate separated from that of his neighbor, R. C. C. art. 825. But if visible bounds actually exist, which have been placed there by consent, the action to rectify any alleged error in the location thereof must be brought within ten years, or it will be prescribed. R. C. C. Art. 853.”

That the Opdenwyer case can afford no comfort to defendant becomes evident when we focus our attention on the words “which have been placed there by consent.” We can well understand that if owners of contiguous estates agree that a boundary shall be along a certain line, and thereafter in conformity with that agreement, there is erected a fence or a hedge is planted, the right of either to bring an action in boundary is thereby cut off. Here, however, the evidence shows that there was no such agreement either expressed or implied or by acquiescence.

The testimony of Mr. E. A. Godehaux, who had owned the property previously to Geoghegan and had sold it to. him, shows very conclusively that plaintiff cannot be said to have acquiesced in the boundary or to have accepted it as correct. Mr. Godehaux said (Tr. page 6):

An. “I got a letter from Mr. Carr some time after he moved up there in regard to the survey, and he said that he had a Mr. Waddill, if I remember correctly — he must have copies of his letters — and I told him to get Waddill and Lewis together and have them both run the lines together, and, whatever they find, I will agree to. Mr. Carr, if I remember correctly, was to get hold of Mr. Lewis and have it done. I told him to go ahead and attend to it, because I didn’t have time, or something of the sort. I had a long talk with him over the phone — several talks —very friendly. I told him if I was wrong, I would move it.”

We think that the facts as to the fence and hedge in question, bring this case squarely within the doctrine announced in Williams vs. Bernstein, 51 La. Ann. 115, 25 So. 411, in which it was said:

“The mere fact that parties owning adjoining properties have cultivated land up to a certain line, or up to a certain fence built either by one or both, or built by one and repaired by the other, does not, per se, evidence an adverse possession, or an acquiescence in, knowledge of, or recognition of an adverse ownership or adverse possession. Neighbors constantly run up fences within or beyond the boundary lines, or join fences; doing so with the knowledge and understanding that such acts are merely temporary, and done subsidiarily to, and with reference to, the rights of both to ultimately ascertain and fix rights by an action of boundary, or through a formal, legal survey. Until this happens such land is held in (occupancy), and not in ‘adverse possession,’ certainly, in the absence of a clear and direct claim advanced of adverse ownership and possession.”

Since then there was no acquiescence in the dividing line as correct plaintiff is not estopped to maintain an action in boundary.

As to the plea of prescription of ten years, it is evident that the strip of land in question was not within the title limits of defendant since it is practically conceded that the rear line, as shown in the title, should be two feet, eleven inches, nearer the front line than it would be if the Brown survey were correct. Therefore. if defendant’s contention is well founded the result would be that he would by ten years occupancy and possession, prescribe beyond his title and this, as we stated in Capo vs. Blanchard, 1 La. App. 3, is not permissible.

“In order to acquire by the prescription of ten years beyond one’s title, it is necessary to show not only possession of ten years but possession based on a boundary fixed according to title by a surveyor in accordance with the fundamentals required by the Code on the subject of fixing boundaries.”

In Gray vs. Couvillon, 12 La. Ann. 730, we find the following:

“Parties are not bound by consent to boundaries which have not been fixed under an evident error unless perhaps by the prescription of thirty years.”

It, therefore, appears that conceding all the facts to be as defendant contends, ten years is not sufficient for his purpose.

But the insurmountable obstacle, which we find directly in the path of defendant’s counsel in his argument supporting the plea of prescription, whether of ten years or of thirty years, is R. C. C. 825, which provides “The action of boundary like that of partition, cannot be prescribed against * *

Furthermore even if the plea can be considered and even if all other facts sustained it, we are not certain that the fence was in existence on the line claimed, more than ten years before the filing of this suit and we are quite certain that the hedge was not.

Then again, neither the hedge nor the fence was on the line fixed by Brown as the correct one, but both seem to have been placed on arbitrary lines established by guess on the part of the owner, or the then owner, of the property.

For these reasons we are of the opinion that the judgment of the trial court approving and homologating the proces verbal of E. L. Eustis, surveyor, and fixing the boundary in accordance therewith and ordering the removal of the hedge in question was correct.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


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    No. 409
    First Circuit
    LAURANT v. DENDINGER, INC.
    (February 13, 1929. Opinion and Decree.)

      A. D. Schwartz and Harvey E. Ellis, of Covington, and R. D. Jones, of Franklin-ton, attorneys for plaintiff, appellee.
    Dresner & Dresner, of New Orleans, attorneys for defendant, appellant.
   LECHE, J.

The appeal in this case was filed within three days of the return day and was therefore filed in time. The motion to ' dismiss is overruled. C. P. arts. 589, 883.

Plaintiff alleges that she is the widow of William Laurant; that her husband was killed by accident while performing duties as a laborer for defendant, and during the course, of his employment; that she was entirely dependent .upon her said husband for a living; that her husband died on September 12, 1927, and left no other dependent hut herself. She prays for compensation at the rate of $4.87 per week, and for the costs of medical services and funeral expenses.

Defendant excepted to plaintiff’s demand on various grounds, among which we shall take cognizance of only one, as we believe that it disposes of the present controversy.

At the time plaintiff’s husband was killed, September 12, 1927, the law controlling the amount of compensation to which plaintiff would be entitled under the circumstances in this case, is contained in Act 85 of 1926, section 1, at page 116, amending section 8, sub-section 2, of Act 20 of 1914, and reads as follows:

“For injury . causing death within one year after the accident there shall he paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided.”

We have searched in vain for a provision fixing the time or number of weeks during which such compensation should be paid. In point of fact, the Legislature failed to insert in the act, the anticipated provision which was to be “hereinafter provided.”

The subsection or paragraph (j) at page 119 of the Act of 1926, in the same section 8, the pertinent part of which we have already quoted, provides that where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this section shall begin on the "date of the last of such payments and shall not continue for more than 300 weeks from the date of the accident. This clause only limits the time during which the payment of compensation may continue hut does not fix that time. The court could, with as much reason, fix the duration of the weekly payments at 10 weeks, 100 weeks, or 200 weeks, as it could at 300 weeks. Nowhere in the statute is any such discretion vested in the courts.

The Legislature has failed to fix the time during which weekly payments should continue, and the court is powerless to do so. The right to compensation is strictly statutory, and to supply a deficiency in the statute requires legislative power, which we do not possess.

Such is the construction placed upon the statute by the Legislature itself, for in 1928, by Act 242 at page 358, it re-enacted subsection 2 of section 8 of the Act of 1926 at page 116, and after the words, “as hereinafter provided,” added the words, “for a period of three hundred weeks.”

The same question was before us in the case of Missouri Cooley Bass et al. vs. Weber-King Mfg. Co., 11 La. App. 117, 119 So. 774, decided January 9, 1929, but not yet final, and we held, as we do here, that we do not believe the court is vested with authority to supply what seems to be a hiatus in the Act of 1926.

For these reasons, the judgment appealed from is avoided and reversed, defendant’s exception of no "cause of action is maintained, and plaintiff’s demand is rejected at her cost.


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    No. 10,546
    Orleans
    JARROW v. CITY OF NEW ORLEANS
    (January 21, 1929. Opinion and Decree.)
    Prentice E. Edrington, Jr., of New Orleans, attorney for plaintiff, appellant.
    McCloskey & Benedict, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff, a negro laborer, was run over by a locomotive and tender of the Public Belt Railroad of New Orleans at a, point just below Harmony street, on March 31, 1925. One of his legs was cut off by the wheels, and the other was so badly crushed that it was amputated by the surgeons at the hospital.

Such injuries. sustained by a laboring man, depending upon his daily manual toil for a livelihood, arouse our deepest sympathy.

The accident occurred about ten or fifteen minutes before the noon hour. In order to understand how and where the unfortunate accident happened, one must be given a full description of the tracks, buildings, street crossings, and other surroundings.

The Harmony street wharf, on its land side, has a concrete platform about level with the floor of freight cars. Immediately adjacent to this platform is a track commonly called the "house track.” Parallel to this house track, about 55 feet from it, there is another track. There is a crossover track which connects these two tracks. This crossover track joins the house track at a point a few feet on the upper side of Harmony street, and connects with the parallel track at a point approximately 75 feet on the lower side of Ninth street. This crossover track is straight from end to end. There are six or seven other tracks parallel to the first two mentioned, but except insofar as their existence tends to show that the whole locus is a network of tracks a.nd hence a point at which pedestrians should be extremely cautious, these other tracks have no bearing on this case. •

There was a string of freight cars on the house track immediately adjacent to the concrete platform. The upper end of this string of cars was some 40 or 50 feet below Harmony street. The evidence leaves us uncertain as to where the lower end of this string of box cars was, but it is certain that there were at least ten or twelve cars in the string.

Between the two parallel tracks, at a point about 100 feet or so below Ninth street, there is a building known as “the garbage dump,” and in this building there was a toilet which, while probably not intended for public use, was, as a matter of fact, apparently used by the general public.

Plaintiff, just prior to the accident, was engaged with other longshoremen in unloading the first car on the upper end of the string of cars to which we have referred.

He testifies that it became necessary for him to seek a toilet, and that he stepped from the car in which he was working to the platform, but that instead of turning to the left in a down-river direction, he turned to the right and walked to the up-river or Harmony street end of the car in which he was working; that he then got to the ground and walked over to the crossover track, and, on reaching it, turned to his right and walked along the center of this crossover track in a down-river direction to go to the toilet in the garbage dump. If he did take this route, he had been walking some 200 or 250 feet when he was run down from the rear by the tender of a switch engine going in the direction in which he was walking. Defendant suggests, though no witness so testifies, that he had not taken the route he describes,, but had in fact walked a short distance along the concrete platform in a down-river direction and had then crossed between two of the box cars in the string and had jumped to the ground, and that this jump occurred just as the tender and locomotive reached the point at which he landed; or, in other words, that he jumped to the ground 'just in front of the on-coming tender. This is suggested as the only way in which he could have gotten in front of the locomotive without being seen. It is indeed strange that he was hot seen, if in truth he had been walking on the track for some 200 or more feet, because not less than four members of the crew of the locomotive claim to have looked in the direction in which he would have been and . none of them saw him. Conceding that some of these employees may not have been looking, it seems hardly probable that all four were mistaken in this regard. To look in the direction in which one is going is instinctive, and, as this locomotive and tender were proceeding down this track, and as four members of the crew were interested in the safe operation of the locomotive, it seems highly probable that at least one of them was actually looking in the direction towards which instinct would ofdinarily have turned his view.

Plaintiff concedes that the facts of this case are strikingly similar to those set forth in the case of Harrison vs. Louisiana Western Railway, 132 La. 761, 61 So. 782, and Mrs. Abbie Castile vs. J. D. O’Keefe, 138 La. 479, 70 So. 481, but strenuously urges a clear differentiation, in that here the accident happened within the limits of a large city and in a place in which a member of the general public had a right to be, to-wit: the bank of the Mississippi river. He cites Civil Code, art. 455: “The use of the banks of navigable rivers or streams is public. * * *” He contends, in effect, that this article gave to him the right to be where he was, and that this right was co-extensive with the right of the locomotive, and that, as the accidents in the two cases cited happened on the private rights of way of the respective defendants, the plaintiffs were trespassers, and that those cases are thus distinguishable from this. We do not see this distinction.

It is true that here, possibly, defendant did not have the right to exclude plaintiff or any member of the general public, but the trouble here is not that plaintiff had no right to be where he was, but that, even if he had that right, in the exercise of it, he did not display due care for his own safety. The two cases mentioned held that a person remaining on a railroad track is guilty of continuing negligence so long as he remains there. If, then, it is negligence to remain on a railroad track, we cannot see any difference between the city and the country, nor between a private right of way which the railroad owns and a public right of way which the railroad has a right to use. The fact that the location was more or less used by the public may, it is true, place a greater duty on the train crew; this was true also in both the cases cited. But surely the fact that trains were constantly switching over this track likewise placed a greater duty on plaintiff, and the absence of right in plaintiff to recover is based, not on the fact that defendant was not negligent, but on the fact that his own negligence contributed proximately to the accident. That this track was in constant use by switch engines is testified to by all of plaintiff’s witnesses. For instance, Joe Henry says: “They are always switching at that hour of the day.”

That there is no distinction in principle between accidents of this kind happening in the open country and happening in the city limits is shown by the decision of the Supreme Court in Nolan vs. Illinois Central Railroad Co., 145 La. 483, 82 So. 590. The accident in the Nolan case occurred in the city of New Orleans near Washington street. In the syllabus appears, this language:

“Railroad cannot be held liable for injuries to one on the track upon doctrine of last clear chance, where its negligence and that of person injured were concurrent and continued up to the moment of the accident.”

The law, in our judgment, seems to be plain that, regardless of the negligence of the crew of the locomotive, a person having the full use of his senses, and remaining on a railroad track, is guilty of continuing negligence, and that this negligence extends to the very moment of the accident and prevents the application of the doctrine of the last clear chance.

Since we are of the opinion that, even accepting plaintiff’s statement as true, his own negligence bars recovery, we deem It unnecessary to analyze at length the various conflicting statements of the witnesses, nor would it serve any good purpose to discuss the law applicable to one who chooses a dangerous route when a safe one is available. In passing, let us remark that it seems there was a much safer route along the concrete platform to Ninth street, and then at right angles across one track, and that there was also a safer route, had plaintiff desired to walk in the direction which he did, between the tracks of two of the lines of railway instead of between the rails of one.

Let us concede that the train crew were not looking out. Is plaintiff’s case bettered by this concession? We think not. As the court said in the Harrison case:

“This failure on the part of the .engineer to look ahead was culpable negligence. Especially that this place was much used by pedestrians, there being no other way along there, and he must have known this, and the defendant company was also culpably negligent in the excessive speed of the train which was going at some 30 or more miles an hour, although by ordinance of the city the speed of trains within the city limits was restricted to 15 miles an hour.”

For these reasons, the judgment appealed from is affirmed, at the cost of appellant.


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    No. 411
    First Circuit
    HEBERT ET AL. v. CRUSEL
    (February 13, 1929. Opinion and Decree.)
    For opinion on rehearing, see 11 La. App. 205.
    Rownd & Warner, of Hammond, attorneys for plaintiffs, appellants.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   ELLIOTT, J.

Joseph S. Hebert, J. P. Salassi, Mrs. Julia d’Aquin, nee Salassi, John R. Salassi, Mrs. Alice St. Amant, nee Salassi, and Miss Dinah M. Salassi are plaintiffs in a suit against J. E. Crusel for having, without any right to do so, according to their petition, entered on the S. W. % of section 33, T. 8 S., R. 4 E., situated in the parish of Livmgston, and cut and removed therefrom 182,737 feet of timber, and other timber and logs, other than túpelo gum and cypress, in addition to the quantity first mentioned. They claimed the total sum of $4,737.47 against him in damages on said account, but, before the case was submitted .to the court, all claim above $2,000 was remitted.

The defendant owned the túpelo gum and cypress on the land by purchase from the plaintiffs, but not the other timber thereon.

The defense is that the defendant bought from the plaintiffs all the cypress and túpelo gum on the land in question, and that he and the plaintiffs supposed that the sale included all of the other timber thereon; that he cut and removed, in good faith, all the timber with the cypress and túpelo gum, in the belief that his title called for all the timber; that the plaintiffs’ demand includes the timber cut and removed by him from headrights 40 and 50, adjoining the S. W. % of section 33, and that all of the timber on these two headrights belonged to him; that the price claimed by the plaintiffs is excessive, and that the value of the timber on the S. W. % of section 33, other than the cypress and túpelo gum, did not exceed $4 per M.

There was judgment against defendant for $465.30, with interest, and the plaintiffs have appealed.

The defendant answering the appeal prays that it be held that he cut the timber in good faith, and that the amount allowed against him in the lower court be reduced.

Plaintiffs’ demand is excessive, because it is based on timber cut from sections 33, 40 and 50, and defendant is the owner of the timber on sections 40 and 50. Plaintiffs’ claim is for the timber, other • than the túpelo and cypress, cut from the S. W. % of section 33 only.

The only question involved in the case is whether the defendant cut and removed the timber, other than the cypress and túpelo gum, from the S. W. % of section 33, in moral good faith.

The evidence shows that plaintiff sold the cypress and túpelo gum on this piece of land to the defendant in June, 1924; consequently, defendant could hardly so soon have forgotten that he had not bought the other timber. In view of the evidence of the plaintiff on the subject, we are of the opinion that defendant had not forgotten it at the time of the cutting.

At the same time the record does not enable us to change the judgment appealed from for the reason that the only actual count and computation showing the quantity of timber cut and removed by Crusel was that made by J. G. Anderson. His testimony on the subject is shown by an admission in the back of the note of testimony which reads as follows: “And that witness testified that this statement showed all the timber, cypress excepted, which had been cut from Section 33 in T. 8, S. R. 4 E., and that the testimony of this witness is uncontradicted.” This admission as to his testimony is exactly in line with the estimate which he made, and which we find offered in evidence and filed in the record, marked exhibit “D 6.” This statement is not limited to the S. W. % of section 33, but refers to timber cut and removed from the entire section, and, in addition, it includes the túpelo gum. Defendant had the right to cut and remove the túpelo gum; consequently we are entirely without evidence or estimate, on which we can safely act as to the quantity of timber cut and removed by Crusel from the S. W. % of section 33, that he did not buy from the plaintiffs.

In such a situation we cannot fix any amount for which the defendant should be condemned, and the only course we can pursue, under'the showing made, is to affirm the judgment appealed from.

Judgment affirmed; appellants to pay the costs of appeal.