author: ODOM, J. WEBB, J.

text:
    No. 3944
    Second Circuit
    BERRY v. GARRETT
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Granted.)
    T. H. McGregor, of Rayville, attorney for plaintiff, appellee.
    C. J. Ellis, of Rayville, attorney for defendant, appellant.
   ODOM, J.

On ’May 16, 1929, plaintiff purchased from defendant a certain lot of ground in Richland parish .described in the deed as follows :

“One-half acre (Vz) in the Northeast corner of the NE^ of the NWy4, Section 35, Township 17 North, Range 9 East, bought at tax sale on September 5, 1927, from James Marshall as per deed recorded in Notarial Record Book 52, page 519.”

The consideration expressed in the deed is $300, one-half cash and the balance represented by one note which plaintiff signed and delivered to defendant and which has not been paid.

Plaintiff alleged in his petition that since purchasing said property he has learned that he acquired no valid title thereto, that the vendor, the defendant,' had no title and therefore could convey none and that the lot which defendant purported to convey to him was at the time of the sale and at the time this suit was filed owned by J. M. Munholland, who was in corporeal possession of the same. Plaintiff prayed that the act of sale purporting to convey said lot to him be declared null, void and of no effect and for restitution of that portion of the price which he paid in cash and for cancellation or return to him of the note which he gave for the balance of the purchase price.

Defendant, in answer admitted the transaction between him and plaintiff as alleged and set up the affirmative plea that he had acquired the property sold at tax sale on September 5, 1927, as per deed recorded September 19, 1927, in Notarial Record Book 52, page 519. He further denied that J. M. Munholland had any valid title to the said lot and further pleaded that if it be true as alleged that he had no valid title to the lot, plaintiff is not entitled to restitution of the purchase price for the reason that the sale was made without warranty and at the risk and peril of the purchaser. There was judgment in the district court for plaintiff as prayed for and defendant appealed.

OPINION

The record shows beyond question that the defendant, William J. Garrett, had no valid title to the lot of ground which the deed from him to plaintiff purported to convey.

Both Munholland and Garrett trace their titles back to Nancy Darrington, who, on December 7, 1923, owned all of the NE% of the NW%, section 35, township 17 north, range 9 east, except one lot sold off the same for school purposes and one lot sold to H. E. Baker as per records at Rayville, containing thirty-five and three-quarters acres, more or less. On that date she sold the above described property to A. B. Bates as per deed recorded December 29, 1923, in Notarial Record Book 42, page 211. The consideration expressed in the deed is $925, of which $275 was paid in cash, the balance to be paid in three installments represented by notes secured by vendor’s lien and special mortgage on the whole of the land sold. These notes were never paid by Bates and in 1926 Nancy Darrington, the vendor of the land and holder of the notes, obtained judgment against Bates for the amount due with interest, costs and attorney fees, with recognition of her vendor’s lien and special mortgage on the land sold. The land was seized, advertised and sold by the sheriff under this judgment and J. M. Munholland became the purchaser on February 21, 1927, as per deed recorded in Notarial Book 51, page 10, of the records of Richland parish. .Munholland went into immediate possession of the property and was in possession of it at the time this suit was filed and on the date of the trial. The proceedings under which he acquired the property seem to be regular and are not attacked. Referring now to the lot involved in this suit sold by defendant to plaintiff, we find that it is part of the Nancy Darrington tract sold by her to Bates and by Bates through foreclosure proceedings to Munholland.

Counsel for appellant says in brief that the record does not establish that this lot is part of the Nancy Darrington tract, but we find that it does. The lot was sold by A. B. Bates to James. Marshall on December 29, 1923, a few days after he acquired the tract from Nancy Darrington and the deed recites that it was “acquired by said vendor by purchase from Nancy Darrington.”

The same lot was sold by the tax collector as the property of James Marshall to W. J. Garrett, this defendant, for the taxes of 1926 due by the said Marshall as per deed dated September 5, 1927, and recorded September 19 in Conveyance Record Book 52, page 519. Garrett in turn sold to plaintiff on May 16, 1929, the deed reciting that it was “bought at tax sale on September 5, 1927, from James Marshall' as per deed recorded in Notarial Book 52, page 519.”

Defendant had no title to the lot conveyed except -that which he obtained at tax sale and if the tax sale was invalid, he acquired no title and, of course, conveyed none to the plaintiff.

The record shows that there was a dual assessment of this lot in the year 1926. The lot itself seems to have been assessed for that year to James Marshall. The Nancy Darrington tract which, as we have already said, included this lot, was assessed to A. B. Bates the same year and Munholland paid the taxes on the entire tract when he púrchased it on February 21, 1927. That was nearly seven months before the lot was sold to this defendant for taxes due by James Marshall. The taxes assessed to James Marshall were not paid prior to the tax sale, but as stated, the lot standing in his name and assessed to him was part of the larger tract assessed to Bates on which all taxes were paid prior to this tax sale, therefore no taxes were due the state or parish on the lot involved at the time it was sold and it follows. that the tax sale was null and void.

Kellogg v. McFatter; 111 La. 1037, 36 So. 112; Honor v. Fellman, 119 La. 1061, 44 So. 887; Charbonnet v. State Realty Co., 155 La. 1044, 99 So. 865; Pratt v. Dalgarn, 166 La. 35, 116 So. 585.

Defendant’s .last contention is that even if it be true that he had no valid title to the lot and conveyed none to plaintiff he is not bound to restore the purchase price for the reason that the property was sold without warranty. But a vendor of real estate must return the purchase price in case of eviction even though the property is sold without warranty. Article 2505 of the Civil Code reads as follows:

“Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.”

But counsel argues that the buyer in this case “was aware, at the time of the sale, of the danger of eviction, and purchased at his peril and risk.” But there is nothing- in the deed itself nor in the oral testimony to show that. The deed recites that the lot was sold under full warranty of title, but preceding the description of the lot there are written these words, “all of the said William J. Garrett’s interest in and to” the said lot.

It is contended that the purpose of inserting that clause was to show that the sale was made without warranty and that the printed portion of the deed which recites that the property was sold “with full and complete warranty and guaranty of title” should have been stricken therefrom. Mr. Wollank, the notary who wrote the deed and before whom it was passed, says that the warranty should have been stricken from the instrument as the sale was intended to be one without warranty. Upon the suggestion of counsel that the deed was ambiguous as to this particular point the court heard oral testimony to explain the intent of the parties as to warranty. The testimony. of Mr. Garrett shows that he did not intend to warrant the title. But even so he must restore the price he received “unless the buyer was aware at the time of the sale of the danger of eviction and purchased at his peril and risk.”

The oral testimony does not warrant the holding that the buyer, a colored man, was aware of the danger of eviction at the time he purchased. He at first insisted on a deed with warranty but was told by Mr. Garrett that he would get such title as he, Garrett, had. Plaintiff testified:

“I always knew that when property was sold at sheriff’s sale it was sold safe and that is the reason that I thought it was good, and I made a jump at it.”

He had no actual knowledge of the infirmities in defendant’s title, although he knew that vendor was not warranting it. On the contrary, he thought the title was good because it was sold at sheriff’s sale.

It is settled jurisprudence that even though the seller stipulates that the sale is made without warranty the purchaser may, if evicted, recover the price paid with interest from the date of eviction unless he had knowledge of the danger of eviction and assumed the risk.

Sewall v. Roach, 5 La. Ann. 683; Hall v. Nevill, 3 La. Ann. 326; Bach v. Syndic of Miller, 16 La. Ann. 44; New Orleans & C. R. Co. v. Jourdain’s Heirs, 34 La. Ann. 648; Citizen’s Bank of La. v. Freitag, 37 La. Ann. 271.

Finding no error in the judgment appealed from we affirm it with all costs.

ON REHEARING

WEBB, J.

Defendant,' Garrett, under a deed of date May 16, 1929, sold to plaintiff, Berry, certain real estate situated in the parish of Richland, the property being described as “all of the said William J. Garrett interest in and to one-half acre in the northeast corner of the NE% of NW%, section 35, township 17 north, range 9 east, bought at tax sale on September 5th, 1929, from James Marshall, as per deed recorded in Notarial Record Book 52, . page 519.”

Plaintiff brought the present suit to rescind the sale, and to obtain restitution of the purchase price; and in support of the right to recover, plaintiff alleges that defendant did not have any title to the property and that John M. Munholland was in possession of the property under a valid title. In answer to the suit, defendant alleged that he had acquired a valid title to the property under the tax sale from James Marshall, and that Munholland did not have any title thereto; and defendant further alleged that plaintiff had purchased the property at his risk and peril, and that he, defendant, was not in any event liable to restore the purchase price. On trial judgment was rendered in favor of plaintiff ordering defendant to restore the purchase price, and defendant • appeals.

The appeal was originally presented here and a decision, rendered affirming the judgment on December 23, 1930 (see Berry v. Garrett, 131 So. 475), in which we found that' there had been a dual, assessment of the property described and that taxes had been paid at the time of the tax sale to Garrett. On- application for a rehearing, both parties stated that-, the taxes had not been paid, and the appeal is now presented on rehearing on the original briefs filed, in which the parties confine their discussion, first, to the validity of the tax sale, under which Garrett acquired the property, and second, in event the tax sale was invalid, to the liability of defendant to restore the purchase price.

Relative to the validity of the tax sale, the record shows that the sale and deed to Garrett were made on September 5, 1927, under an assessment against the property for the year 1926, in the name of James Marshall, who acquired the property under deed of date January 2, 1924, from A. B. Bates, who acquired the NE% of NW14, section 35 (which included the property sold by him to Marshall), under deed of date December 17, 1923, from Nancy Darrington, who retained a vendor’s lien and mortgage on the property sold to secure the payment of notes given by Bates for the purchase price; and Nancy Darrington proceeded against the property under the mortgage and vendor’s lien, and the entire NE1/^ of NWy4 of section 35 was sold under such proceeding to John M. Munholland, who recorded his deed on April 5, 1927, and entered in possession of the property.

While there cannot be any doubt that the property sold by Garrett to plaintiff was properly assessed for the year 1926, in the name of James Marshall, who was the owner of record at that time, it is clear that the title of Marshall was divested by the sale made under the foreclosure proceedings referred to above, and that John M. Munholland was the record owner of the property at the time of the tax sale, and the evidence showing that Munholland, who was in possession of the property sold at tax sale, did not have knowledge that the taxes assessed against same had not been paid, and that he was not given notice of the non-payment of the taxes prior to the sale, we are of the opinion the tax sale was void for want of notice and did not divest Munholland of his title to the property (Ryals v. Todd et al., 165 La. 752, 116 So. 395; also Kivlen v. Horvath, 163 La. 901, 113 So. 140).

Considering the liability of defendant to restore the purchase price on the grounds that plaintiff purchased at his risk and peril within the meaning of article 2305, Civil Code, there is not anything on the face of the deed indicating that the parties understood that the sale was made at the risk and peril of the vendee, but on. the other hand, the contract contained an express stipulation of warranty. However, even though there had been an express stipulation that the sale was made without warranty, defendant would not be relieved of restoring the purchase price in the absence of a stipulation to that effect, or at least proof that plaintiff knew or was informed by defendant of the defects in the latter’s title. And the record failing to show that plaintiff knew of any defect in the title, defendant was bound to account to plaintiff for the purchase price (N. O. & Carrollton Railroad Co. v. Jourdain, 34 La. Ann. 648, and authorities cited).

The judgment appealed! from is therefore affirmed at appellanc’s cost.

McGREGOR, J., recused.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 4067
    Second Circuit
    RAPIDES PACKING CO. v. OLLA STATE BANK ET AL.
    (July 14, 1931. Opinion and Decree.)
    Polk & Robinson, of Alexandria, attorneys for plaintiff, appellant.
    P. S. Gaharan, Jr., of Jena, attorney for defendants, appellees.
   DREW, J.

Plaintiff alleged: That on and prior to March 16, 1929, it was and is. now a creditor of Ernest E. Cruse and C. C. Cruse, who conducted at and prior to that date, and are now conducting, a retail mercantile business in the town of OJla, La Salle parish, La. That on March 16, 1929, the said Cruses granted and executed unto and in favor of any future holder of the note secured thereby a mortgage in the sum of $3,000 against the following described property: “All store shelves and counters; two adding machines; four pairs of scales; one cash register; one meat counter; one cooler; one safe; one Victrola; one meat chopper; one meat slicer; all light fixtures, together with all minor furnishings and fixtures now used in connection with the operation of the place of business operated in the name of Jitney Jungle in the Town of Olla, Parish of La Salle, Louisiana.”

That the Olla State Bank is the holder and owner of said mortgage note. That the mortgage, in so far as it operates as an incumbrance against the said property above described, is null, void, and of no force, virtue, or effect, in fact or in law, for the reason that said, mortgage was given and granted out of the ordinary course of trade or in .the regular and Usual prosecution of the business and operates as an incumbrance and mortgage against and, under the terms of section 5, Act No. 270 of 1926, constitutes, a transfer of all, and if not all, substantially all, of the movable property, fixtures, or equipment, including movable store and office fixtures, used, or to be used, by the same mortgagors in the display, care, or delivery of the goods, wares, and merchandise sold by them in their business.

That, in effecting the act of mortgage, the Olla State Bank and the said mortgagors did not comply with .the provisions of Act No. 270 of 1926, and specifically did not, at least ten days before the completion of said mortgage, and/or of the payment of any consideration therefor, make a full and complete inventory showing the quantity and, in so far as possible, the cost price to the said mortgagors of each article included in said act of mortgage.

That the said Olla State Bank did not demand or receive from the mortgagors a written statement setting forth substantially names and addresses of each creditor of the mortgagors, together with the amount of indebtedness due and to become due, all as provided in paragraph (b) of section 2, Act No. 270 of 1926.

It further alleged in detail that the defendant did not comply with paragraph (c) of section, 2, Act No. 270 of 1926, and that the defendant did accept from the said mortgagors the mortgage herein sought ■ to be enforced by it, and did pay over to said mortgagors the amount as stipulated in said mortgage.

It further alleged that the said mortgage, in so far as it operates against the movable effects of the said mortgagors, is void, null, and of no effect, and particularly as it affects and operates against petitioner.

Plaintiff alleged that it had filed suit against the said mortgagors and had issued a writ of attachment and had the properly seized, and pleads in the alternative, should the court hold the act of mortgage not to be null and void, that its lien and privilege acquired by virtue of the writ of attachment be held superior in rank to any other lien and .privilege, and particularly as against the defendant, holder of said mortgage; that defendant has had execution issue under foreclosure proceedings of said mortgage, the property has been seized, and is not advertised for sale; and that a sale thereunder would be null and void for the -reasons above set forth. It alleged the indebtedness of mortgagors to it in the amount of $300, with 8 per cent per annum interest from December 21, 1928, until paid, with 10 per cent additional as attorney’s fees, less a credit of $8.70; said indebtedness being represented by a promissory note of said mortgagors.

It further alleged in the alternative that the Olla State Bank should be held as a receiver for said mortgagors and required to account to petitioner for the value of each and singular of the property above described, and prayed for relief accordingly.

Defendant filed an exception of no cause or right of action, which was sustained by the lower court, and from this judgment plaintiff has appealed. The exception is based on the following ground:

First, that there is no allegation in plaintiff’s petition that the indebtedness arose out of or in any manner in connection with the operation of the store known as Jitney Jungle in the town of Olla; and

Second, that the petition merely alleged a conclusion of law relative to the mortgage not having been given in the usual prosecution of mortgagors’ business.

We are informed by appellee’s brief that the lower court sustained the exception on the second ground urged and did not pass on the first contention of appellee. However, both contentions of defendant are urged here.

This action is brought under Act No. 270 of 1926, commonly known as the Bulk Sales Law; sections 1 and 5 of said act being applicable here. Section 1 reads as follows.:

“Be it enacted by the Legislature of Louisiana, That the .transfer in bulk, and otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the transferor, of any portion or the whole of a stock of merchandise, or merchandise and fixtures, or of all or of substantially all of the fixtures or equipment used or to be used in the display, manufacture, care or delivery of any goods, wares or-.merchandise including movable store and office fixtures, horses, wagons, automobile trucks and other vehicles or other goods or chattels of the business of the transferor shall be void as against the creditors of the transferor, unless made in conformity with the provisions of this Act.” '

It is. noted that this section reads, “shall be void as against the creditors of the transferor.” There is no restriction limiting it to any particular class of creditors. It therefore covers all creditors. It is true that the purpose of the act was to protect wholesalers against unscrupulous merchants who would fill .their storehouses with goods purchased on credit, and then sell same in bulk, leaving the wholesaler without recourse for collection. But the Legislature in its wise discretion saw fit to make the law cover all creditors, possibly having in view the danger of running into the ban on class legislation. The jurisprudence in practically all other jurisdictions holds, in interpreting like acts, that it covers all creditors, regardless of how the debt arose. McDaniels v. Connelly Shoe Co., 30 Wash. 549, 71 P. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889; Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A. L. R. 1514; Eklund v. Hopkins, 36 Wash. 179, 78 P. 787; 27 C. J. 879; Douglas Fir Lumber Co. v. Star Lumber Co., 27 N. M. 403, 201 P. 867, 41 A. L. R. 1476.

We therefore conclude there is no merit in the first contention.

Section 5 of Act No. 270 of 1926, reads as follows:

“That transfers under this Act shall include transfer in payment of debt, in whole or in part, pledges, mortgages, sales, exchanges, and assignments, whether for cash or on credit or in exchange for certificates of stock, bonds or other obligations of a corporation, otherwise than in the ordinary course of trade and in the regular and usual prosecution of thé business of the transr feror. * * * ”

. It is plain from the provisions of sections 1 and 5 of Act No. 270 of 1926, that the placing of a mortgage on the fixtures and out of the usual course of trade is void as. against a creditor of the mortgagor unless the provisions- of Act No. 270 of 1926 are complied with.

Plaintiff has alleged in detail the acts of the mortgagors in executing the mortgage, and that the provisions of Act No. 270 of 1926 were not complied with, and concludes by alleging that said acts were not in the ordinary course of business, and we hold the allegations are sufficient.

It is not necessary that plaintiff negative every act of mortgagors that would be in the ordinary course of business. It alleged that .the mortgagors were engaged in the business of a retail merchant. The ordinary course of business of a retail merchant is to buy goods and to sell them in lesser quantities than he buys, at retail, with a view to profit. 34 C. J. 1685. The ordinary course of business of the defendant bank was .to loan money and to take security for the same, but the ordinary course of business of the defendant bank is not of any concern in this case, only the ordinary course of business- of the mortgagors.

Plaintiff has alleged the ‘ act's of the mortgagors complained of, and has alleged that such acts were outside the ordinary course of business, of a retail merchant. The mortgagors may have used the money secured on the mortgage to pay debts or to buy goods to remain in business. That is a matter to be developed on trial of the case on its merits, if it is a defense to the act. We reserve our opinion on that question.

In the case of C. B. Norton Jewelry Co. v. Maddock, 115 Kan. 108, 222 P. 113, affirmed on re-argument in 1924 (115 Kan. 574, 223 P. 816) quoted in 57 A. L. R. 1053, the court said:

“The purpose of our statute is to prevent a person engaged in merchandising from disposing of any part of his stock, otherwise than in the ordinary course of his business, to the disadvantage of any of his. creditors. As was held in Linn County Bank v. Davis (103 Kan. 672, 175 P. 972, 9 A. L. R. 468) supra, giving a mortgage on a stock of goods is a ‘disposal’ thereof. Such a transaction is out of the ordinary course of trade or business. Pledging a part of a stock of goods is likewise a disposal of those goods out of the ordinary course of trade or business. It is. a complete disposition of the goods, so far as the creditors of a merchant are concerned. It puts those goods beyond the reach of all creditors, except those who may receive the benefit of the pledge, until .the pledgee’s claim has. been satisfied. So far as creditors are concerned, pledging all or a part of a stock of merchandise is as effective a disposition of the goods pledged as can be made by a sale thereof. To be valid, such a disposition must be made in conformity with the Bulk Sales. Law of this state.”

We conclude that the second contention of defendant is not good, and that the judgment of the lower court sustaining the exception of no cause of action is erroneous. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the case remanded for further procedure.


author: McGREGOR, J.

text:
    No. 4066
    Second Circuit.
    THOMPSON-RITCHIE GROCERY CO. v. CARY ET AL.
    (July 14, 1931. Opinion and Decree.)

      B. T. Dawkins, of Alexandria, attorney for plaintiff, appellee.
    S. R. Holstein, of Jena, attorney for defendant, J. M. Edwards.
    A. D. Flowers, of Jena, attorney for defendant, C. H. Cary, appellant.
   McGREGOR, J.

On June 30, 1923, plaintiff, Thompson-Ritchie Grocery Company, secured a judgment against Dave Shapiro in the Eighth district court in and for La Salle parish for the sum of $472.96, with 8 per cent interest from November 13, 1922, together with 10 per cent of the principal and interest as attorney’s fee for collection, and all the cost of. court. This judgment was recorded in the mortgage records of La Salle parish, and operated as a judicial mortgage on all the real property owned hy Shapiro at the time or subsequently- acquired by him. When the plaintiff obtained and recorded its said judgment, Shapiro was the owner of and in possession of the following describe.d property: A strip 40 feet wide off of the west ends of lots 7, 8 and 9, being 140 feet long, in block 5 in the town of Jena, La Salle parish, La., as per plat of said town on file in the recorder’s office of La Salle parish, La., together with all buildings and improvements situated thereon, or thereunto belonging.

On April 26, 1924, Shapiro sold this property to C. H. Cary, and on April 12, 1926, Cary sold an undivided half interest in it to John M. Edwards. Up to the time of the filing of this suit, there had been no further sales or transfers. On November 1, 1927, Shapiro went into voluntary bankruptcy by filing a petition for the purpose in the United States District Court for the Western District of Louisiana, and was adjudged a bankrupt in the early part of 1928. No discharge appears to have been asked for or granted, .though all the property owned by him was surrendered and sold, and the proceeds distributed among his creditors, by the bankrupt court. Plaintiff filed this claim in these proceedings and received $94.43 on March 22, 1929, after the filing of this suit. This suit was filed by the plaintiff against .the defendants in an effort to collect its judgment against Shapiro out of property which he owned at the time the judgment was-secured, but which is now owned by the defendants. The suit is brought in the form of a hypothecary action, and all the required preliminary demands and notices are admitted to have been made and given in accordance with law. An exception of prematurity was filed by the defendant Cary, and same was overruled by the court. This exception was based on the allegation that Shapiro had been adjudged a bankrupt; that the plaintiff had filed and proved its claim in the bankruptcy proceedings; that it would participate in the proceeds of the sale of its property; and that until the disbursement of the said proceeds it would be impossible to determine the amount of the liability that might exist by virtue of defendants’ ownership and possession of the property in question. He then answered and contended that the -bankruptcy proceedings operated as a cancellation of all judgments listed as liabilities by the said Shapiro and that, therefore, all legal mortgages created and existing against any property by virtue of the recordation of any judgments. were likewise canceled. He particularly alleged .that the plaintiff was estopped from pursuing the said property by the hypothecary action for’ the reason that it had filed its claim against Shapiro in the bankruptcy proceedings, and sought to participate in the bankrupt’s estate. The defendant Edwards, in his answer, alleged that in the suit in which plaintiff obtained its judgment against Shapiro there was no legal citation and that, therefore, the judgment was null and void. He further -contended that the suit was premature, in that bankruptcy proceedings were pending in the United States District Court. In addition, he attempts to have other property formerly owned by Shapiro subjected to .the payment of this, judgment under a plea of discussion, but complied with none of the requirements of the law relative to such a proceeding. He also called his co-defendant Cary in warranty. On March 22, 1929, after the suit was filed but before trial, plaintiff received the sum of $94.43 as a dividend from the bankrupt’s estate, which was applied as a credit on the debt sued on herein. On trial in the lower court, there was judgment in favor of the plaintiff against the defendants as prayed for, ordering them ¡to surrender the property described in plaintiff’s petition, in order that it might be sold to satisfy plaintiff’s hypothecary debt less the amount recovered from the bankrupt court, and, in default of their surrendering the said property as directed, the defendants were condemned to pay the amount of the said judgment. There was further judgment in favor of the defendant Edwards against the defendant Cary on his call in warranty in a sum equal to the purchase price paid by the said Edwards to the sgid Cary for an undivided one-half interest in the property, in the event that the said Edwards should be dispossessed of his interest, or should relinquish the same in accordance with the decree of the court. From that judgment, both defendants have appealed.

OPINION

The plea of prematurity urged by both defendants was properly overruled by the trial judge, for the reason that one holding security for a debt due by a bankrupt in the enforcement of his rights against the security is not required to await the distribution of the proceeds of the bankrupt’s property out of which the ordinary creditors are to be paid. If he chooses to do so, he may stay out of the bankruptcy proceedings entirely, and look to the security alone for the payment of his debt. In fact, in all cases where a creditor of a bankrupt is secured by a mortgage or other lien on property belonging to the bankrupt’s estate, he must look first to the security for the payment of his claim before being permitted to participate with the unsecured creditors in the proceeds of the mass of the bankrupt’s estate. Such a claim is “allowable” to share in dividends only to the extent of any deficit left after deduction of the value of the security from the debt. Remington on Bankruptcy, secs. 241 and 911; Bankruptcy Act, sec. 57e and sec. 57h, 11 USCA sec. 93 (e) and (h). On the other hand, if the creditor prefers, he may file his claim as an unsecured claim and renounce his security entirely. But if he prefers to look to his security alone and renounces any right to participate in the proceeds of the mass of the bankrupt’s estate, he may, with the consent of the bankrupt court, proceed at once in the state court to collect his debt out of the security. So that, not only is the suit to collect a debt due by a bankrupt out of property securing its payment not subject to an exception of prematurity, but the suit should be brought before the said secured creditor is allowed to share in the proceeds of the mass of the bankrupt’s estate. This is necessary in order to determine the balance due the secured creditor, if any, after the security has. been applied towards the payment of the debt. The only thing that the plaintiff „in this case did wrong, if any, was in filing and proving his claim as unsecured, before exercising his rights, on the security, or ascertaining its value in some of the ways provided by the bankrupt act.

But in this ease, we do not hold that plaintiff did not have a right to file his claim as he did. In all references to property securing a claim against a bankrupt both by the bankrupt act and the authorities, only property belonging to the bankrupt’s estate is included. We have engaged in the above discussion to show that, even in cases where the law designates the order in which a secured creditor should proceed, it directs that he either proceed first against the security, or ascertain its value before being allowed to share in the dividends, accruing from the rest of the property. To sustain the exceptions of prematurity would be to hold directly opposite to what the law provides. But in this case, the security out of which the plaintiff is endeavoring to collect its debt is no longer the property of the original debtor, nor is it a part of the bankrupt’s estate. For that reason, the bankrupt court does not govern plaintiff in its efforts to collect its debt out of the said property, nor is said property in any sense a part of the bankrupt’s' estate. Under the law, plaintiff had a perfect right to participate as an unsecured creditor in the bankruptcy proceedings, without reference to the security held, for the reason that the property held as security is not property of the bankrupt.

Defendant Edwards included in his answer what might be termed a plea of dis^ cussion, but this need not be examined on its merits, as he did not in any manner comply with the law on this subject, Code of Practice, art. 72, which required that specific property be designated for discussion, and that the necessary funds be provided.

Defendant Cary, in his answer, pleads estoppel based on the allegation that since Shapiro has gone .into bankruptcy, and plaintiff has filed its claim against him in the bankrupt court, it, plaintiff, is es-topped from asserting its right to the hypothecary action against the property owned and possessed by defendants. It musí; be conceded that plaintiff could have ignored the bankruptcy proceedings entirely. and depended solely upon the claim that it holds upon the property in question. Its effort to collect its debt out of the property of the bankrupt cannot injure the defendants. On the contrary, this action of the plaintiff was in the interest of the defendants. Whatever the plaintiff realizes out of the bankrupt’s, estate will reduce the amount of the indebtedness in question, to the payment of which the property involved is subject. In fact, the judgment in the case gives credit for the1 amount of $94.43, which plaintiff has received from the trustee of the bankrupt. To sustain this plea of estoppel would be equivalent to holding that one suing the principal debtor is estopped from suing those who had guaranteed the debt. It would have the effect of penalizing the plaintiff for doing the thing that would lessen the debt, and thereby benefit the defendants to that extent. This plea is without merit, and was properly overruled.

Defendant Edwards alleges in his answer that the judgment representing plaintiff’s claim is null and void for want of legal citation upon Shapiro, the judgment debtor. The only proof offered to substantiate this alleged defense was the fact that the defendant's attorney was unable to find the original citation in the clerk’s office. Shapiro was not called as a witness to testify on this point. The evidence is insufficient to support the allegation.

Aside from the exceptions enumerated above and which were all overruled, the principal defense in the case is that the claim of plaintiff against Shapiro, represented by its judgment as recorded in the mortgage records, is not an obligation of the defendants; that they are neither guarantors nor sureties on the said obligation, and that the adjudication of Shapiro as a bankrupt had the effect of cancelling this judgment as- well as all other judgments against him and that, therefore, the plaintiff has no right to the hypothecary action against them, as the owners and possessors of the property involved. The answer to these defenses is: It is not contended that the judgment against Shapiro is a personal obligation of the defendants. It is not. It is not contended that the defendants are guarantors or sureties on the obligation. They are not. But it would be a new and startling declaration of the law to say that an adjudication and discharge in bankruptcy releases the security which a creditor may hold, whether this security be in the form of personal indorsements, or mortgages on real or personal property. In their brief, counsel for the defendants take the position that the adjudication and the discharge in bankruptcy cancel and satisfy all obligations of the bankrupt, and that it necessarily follows that all mortgages and judgments against the bankrupt would be canceled. The fallacy of the argument is found in the misconception of the effect of the discharge in bankruptcy. With reference to this judgment, the only effect of a discharge in bankruptcy would be to relieve Shapiro from all personal liability on account of it. At the time of the recordation of the judgment in the mortgage records of La Salle parish, plaintiff had a personal claim against Shapiro, and against any and all his property, and could have executed the judgment by direct seizure under a writ of fieri facias. When Shapiro sold the property involved in this suit, it was. sold subject to plaintiff’s right to seizure, but it could be seized only by the hypothecary action. Plaintiff was just as effectually secured by this judicial mortgage on this property after its sale as. it was before. The only difference lies in the remedy to enforce its right on the security. When Shapiro was adjudged a bankrupt and received his discharge, he was no longer liable personally for the payment of the judgment, but that fact does not deprive the plaintiff of its right to pursue this property on which it is conceded .he had a judicial mortgage down to the moment of the discharge. Suppose this judgment had been based on a note with personal indorsements for security. Gould it be contended for a moment that the release of a principal through bankruptcy would deprive plaintiff of its right to pursue the property of the indorsers? The law in such cases has been ably set forth in this state in two well-considered opinions: Schexnailder v. Fontenot et al., 147 La. 467, 85 So. 207, and Allen v. Boyett et al., 2 La. App. 643. The first case involves the right of a judgment creditor to enforce his judgment against property of a discharged bankrupt, which had been released to him as a homestead by the bankrupt court. The court held that the discharged bankrupt was relieved from all personal liability on account of the judgment, but that the judicial mortgage was as effective and as much in force after the discharge as it was before. In that case, the judgment creditor took steps to enforce his rights, under his judicial mortgage, while the discharged bankrupt still owned and possessed the property. Under defendant’s contention, if this judgment creditor had participated in the bankruptcy proceedings, the judgment would have been satisfied. Such a position is clearly untenable. If the judgment creditor had sat quietly by and let the bankrupt sell the property, it would have passed to the vendee subject to the judicial mortgage, and the hypothecary action would have been necessary instead of a direct action under a writ of fieri facias. The case of Allen v. Boyett involves the enforcement of a lessor’s lien under similar circumstances, but the reasoning of the case and the principal involved are the same.

Counsel for defendants say that it will be necessary for us to make jurisprudence in deciding this, case, for the reason that in their opinion there is none in Louisiana on the subject. But the case of Schexnailder v. Fontenot effectively answers every question or argument that has been raised in this case. Up to the time that Shapiro went into bankruptcy, plaintiff herein had a judicial mortgage on the property involved herein. If it had collected $94.43 from the bankrupt court, it cannot be said that its judicial mortgage and its. right to the hypothecary action were affected in the least. Receiving this amount as a credit on the indebtedness ' operated to the benefit of defendants, and they cannot claim the forfeiture of the right to the hypothecary action by the plaintiff.

Counsel appear to base their case upon equity, justice, and right. All the equities are with the plaintiff, as well as the law. What right did these defendants have to acquire this property free of this judgment to which it was subject? Plaintiff secured its judgment strictly in accordance with law and recorded it, and thus acquired a judicial mortgage. From that moment plaintiff had its mortgage rights, against the property, which the law declares follows it in'the hands of all future purchasers. What moral or equitable right did the defendants have to purchase the property free of this mortgage, and thus defeat plaintiff’s security granted to it by the law? The release of Shapiro from all liability left' plaintiff with the security alone. The principal reason for securing judgments, and having them recorded as judicial'mortgages on property, is to secure judgment creditors in the event that the judgment debtor may in the future take advantage of the bankruptcy act.

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


author: WEBB, J.

text:
    No. 3960
    Second Circuit
    TEFAS v. GATZOULAS ET AL.
    (July 14, 1931. Opinion and Decree.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    Lester & Madden, of Monroe, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff and defendants operate lunch stands in the city of Monroe, Louisiana, where they sell sandwiches and soft drinks; there is displayed a sign on the windows of each of the stands in which the words “Coney Island” are used, the respective signs reading as follows:

“CONEY ISLAND 5c
STAND
5c SWEET MILK 5c
HOT DOGS
5c CONEY ISLAND 5c
HOT DOGS 5c”

In the present action plaintiff alleged that the words “Coney Island” were used and adopted as a trade name under which' he had operated his lunchstand over a long period prior to the time defendants had opened their stand; and that he, plaintiff, had built up and established a lucrative business under that name; and he sought to have defendants restrained'from displaying the words “Coney Island” on their stand and to recover damages' alleged to have been sustained from the wrongful use of the alleged trade name of plaintiff by the defendants.

Defendants denied plaintiff’s allegations and pleaded that the words “Coney Isl- and,” as used, were descriptive of the food sold by each of the parties and could not be appropriated as a trade-name; and further, that, if plaintiff operated his lunchstand under the name of “Coney Island Stand,” he did so in violation of Act No. ,64 of 1918, and could not have acquired any proprietary right in said name. On trial judgment was rendered rejecting plaintiff’s demands, and he appeals.

As appears, the basis of plaintiff’s suit is that he had conducted his business under the trade-name of “Coney Island Stand,” under which name he had built up and established a lucrative business, and that he had acquired a proprietary, right in the name which he was entitled to protect as against defendants, who had subsequently opened a light lunchstand on which they had displayed a name similar to that adopted by plaintiff as his trade-name.

Passing any question as to the right of plaintiff to acquire a right of property in a trade-name without complying with the provisions of Act No. 64 of 1918, as amended by Act No. 303 of 1926, which prohibits anyone from conducting a business under any name other than the real name of the person owning the business, which was raised by the pleadings but not pressed here, we are of the opinion that the evidence shows that plaintiff could not appropriate the words “Coney Island” as a trade-name.

“Coney Island” is a geographical name, and it is generally held that such names cannot be appropriated as a trade-name. But aside from that, the evidence shows that the words “Coney Island” are commonly used by persons who operate lunch-stands, such as that operated by the parties, and their patrons, as descriptive of an article of food or sandwich, which the evidence shows was sold by both plaintiff and defendants; and that such stands are commonly referred to as “Coney Island Stands.”

We are therefore of the opinion that under the evidence, the words “Coney Island” should be considered as descriptive of the business in which plaintiff was engaged and of the class of food sold by him, and that such words could not be appropriated as a trade-name (R. C. L. vol. 26, p. 852, sec. 28), and that defendants, by displaying on their lunchstand the words “Coney Island,” which, as shown by the evidence, related to the class of food sold by them, did not infringe upon any right of plaintiff.

The judgment appealed from is affirmed, at appellant’s cost.


author: McGRÉGOR, ¶ J.

text:
    No. 4037
    Second Circuit
    ADAMS v. PICKEL ET AL.
    (July 14, 1931. Opinion and Decree.)
    J. W. Elder, of Ruston, attorney . for plaintiff, appellant.
    W. E. McBride, district attorney, of Ruston, and Edward Everett, Jr., of Farmerville, attorneys. for defendants, appellees.
   McGRÉGOR, ¶ J.

This is a suit by the plaintiff for a reduction in the assessment of his property in Union parish for purposes of taxation. The defendants are the Louisiana Tax Commission, the tax assessor, J. E. W. Pickel, the Union parish equalization board, the police jury of Union parish, acting as the parish board of reviewers, Z. C. Rabun, clerk of the court, and F. W. Murphy, sheriff and tax collector of Union parish. The plaintiff is the owner of 3,680 acres of land in Union parish, and on March 21, 1930, made due and timely return of the said land under oath to the tax assessor qf Union parish, and in the return he valued it at $4.25 per acre for all''local and state assessment and taxation purposes and listed it as cut-over pine land. When this return was thus made the tax assessor refused to accept it but raised it to $7 per acre and classified the land as woodland. Plaintiff took every legal step required of him within the delay allowed by law in protesting against the action of the' assessor in raising the said assessment. The Union parish board of equalization, the police jury of Union parish, sitting as the parish board of reviewers, and the Louisiana Tax Commission all refused to recommend the lower assessment and sustained the tax assessor in the $7 assessment and in the classification of the land as woodland. On December 21, 1930, the tax assessor filed the completed rolls in the offices of the sheriff and tax collector and the clerk of the court. These rolls contained plaintiff’s assessment at $7 per acre. In order to prevent the tax assessor from proceeding to collect taxes from him on the basis of the contested assessment, the plaintiff filed this suit, which, under the law, is a summary proceeding. A rule was issued directed to all of the defendants and ordering each of them to show cause on January 19, 1931, why the reduction of plaintiff’s assessment should not be granted and why a preliminary restraining order should not be issued. On January 19, 1931, the day set for the hearing on the rule, it was reset for January 26, 1931. On that day the defendants filed exceptions of misjoinder and of no cause or right of action and, with full reservation of all their rights under the exceptions, answered. The exception of misjoinder was sustained as to the clerk, the sheriff and the Union parish equalization board, and as to the other defendants this exception and that of no cause or right of action were referred to the merits.

Put in condensed form, the answer admitted that plaintiff classified his land as cut-over pine land and returned it at $4.25 per acre and that the assessment was raised to $7 per acre and that the land was classified by the assessor as woodland, but alleged that the raise in rate and change in classification were justified by the character and' value of plaintiff’s land. With the issues as thus made up and joined the case was tried on January 26, 1931, and on February 20,. 1931, judgment was rendered rejecting the demands of the plaintiff and allowing 10 per cent of the amount of taxes, involved to be paid to the attorney for the defendants. From this judgment the plaintiff is prosecuting this appeal.

OPINION

The only question to be determined in this case is as to whether the plaintiff’s land shall be assessed at $4.25, the value fixed by the plaintiff, or at $7, the value fixed by the defendants. Under the law the assessment as fixed by the defendants is presumed to be correct unless and until the plaintiff introduces satisfactory proof to the contrary, so that the assessment of plaintiff’s property as it appears on the tax rolls that were filed in the clerk’s office is prima facie proof of its correctness. As a part of the taxation machinery of the state there has been constituted what is known as the Louisiana Tax Commission. This body has the right under the law, subject to the supervision of the courts, to direct and control the tax assessor in the matter of fixing the assessment valuations on all property in the respective parishes. This commission has divided the land of the state into different classifications for assessment purposes — two of which are woodland and cut-over pine. For the year 1930 the commission has decreed that woodland shall be assessed at $7 per acre, in Union parish particularly, and that cut-over pine land shall be assessed at valuations ranging from $4.25 to $5 per acre in the state generally. These values have no reference whatever to any added or speculative value that any land may have on account of being located in or near oil and gas territory. Under the express provision of section 21 Of article 10 of the Constitution of 1921, nothing can be added to the valuations placed on lands for assessment purposes by reason of the peculiar conditions that arise when it is suspected or believed that oil or gas lies beneath the land in any particular territory. The constitution authorizes and the legislature has provided for a severance tax on oil and gas. This is the only way that the state is permitted to tax these minerals and they are taxed only as they are produced. It is not permitted to add to the assessed valuation of land anything “by reason of the presence of oil or gas therein or their production therefrom.” To illustrate: Certain land may be worth $5 'per acre and assessed at that price. If a new oil and gas field is discovered in the adjacent territory the mineral rights of said land might suddenly become very valuable and might sell for $50 or more per acre. Under the express provision of the constitution nothing could be added to the assessed valuation of the property on this account. There might never be any oil or gas produced from the land in question and this added value. might prove to be purely speculative. So that, in the case under consideration if the defendants have added anything to the assessed valuation of plaintiff’s land by reason of its proximity to known gas and oil fields the increase is not justified. The defendants do not contend that anything has been add•ed to the assessed valuation on account of the value of the mineral rights, but on the contrary say that the value placed on the land is correct without taking into consideration any mineral rights. This question has been injected into the case by the plaintiff. He does not say at what price the mineral rights are valued by him. He merely testifies that he will take $4.25 per acre for all his land if he is permitted to reserve the mineral rights, and that, therefore, the land should be assessed at not more than that amount. This is not a fair criterion. There may not be an available purchaser for all these separate tracts of land at any price at all and in that event the plaintiff would be safe in saying that he would take $3 per acre for all of it and that, therefore, it should be assessed for that amount.

The real controversy in the case is as to whether the land has been properly classified by the defendants as “woodland.” If it has been, then the assessment at $7 per acre fixed by the Louisiana Tax Commission for that class of land must stand, unless it is proved by the plaintiff that the land, independent of how it may be classified, is not worth that amount.

Practically all the land involved was bought by the plaintiff in 1919 for $5 per acre, with all merchantable timber of eight inches in diameter reserved. Since that time the timber lias been removed. The first witness for the plaintiff was W. C. Feazel, who had charge of the land before the plaintiff bought it and who looked after it for some time for the plaintiff, though he says he has not seen it for several years nor since the timber was cut and removed. He has no knowledge of the present condition of the land as to whether or not it has been properly classified as “woodland,” but he thinks that $4.25 per acre is a fair value for it, exclusive of the mineral rights. The plaintiff’s personal testimony is that he would take $4.25 per acre for all the tracts, exclusive of the mineral rights, and that there is not a sufficient, growth of timber on the land to justify its classification as “woodland.” Mr. R. R. Coleman, witness for the plaintiff, did not testify as to the value of the land. B.is testimony was that during the course of several years he superintended the cutting of the merchantable timber on the land for those who owned it. He was not able to say whether there was a sufficient growth of timber on the land at the present time to justify its classification as “woodland.” He was fair and impartial and was as favorable to the defendants as to the plaintiff. In addition to this testimony the plaintiff offered the deeds by which he acquired the property for $5 per acre. He also offered the assessments of the Frost Lumber Industries, Incorporated, and of Dubach Lumber Company. The Frost Lumber Industries’ assessment is as follows: 31,739 acres of woodland at $6 per acre; 49,260 acres of cut-over pine land at about $4 per acre; and 49,260 acres of cut-over swamp land at about $3 per acre. The Dubach Lumber Company’s “woodland” was assessed at $7 per acre and its swamp land at $5 per acre. Plaintiff calls particular attention to the assessment of the Frost Lumber Industries as being lower than his and lower than the rates fixed by the Louisiana Tax Commission. This is satisfactorily explained by the assessor who states that this company had secured a reduction in its assessment by virtue of maintaining a system of reforestation and fire prevention in accordance with Act No. 90 of 1922, as amended by Act No. 71 of 1924. This being true, this assessment cannot serve as a criterion for the assessment of plaintiff’s land. The assessment of Dubach Lumber Company corroborates defendants’ position absolutely in that all of its lands that are classified as “woodland” are assessed at $7 per acre, the rate fixed by the Louisiana Tax Commission.

In its discussion of what constitutes “woodland” the Louisiana Tax Commission says:

“In this classification should be placed all tracts of brush woods that cannot be classed as open land and cannot be classed as timber land, as well as all cut-over lands that have reforested to an extent that renders them susceptible to this classification. Nearly every farm has a small tract of brush woods that is usually unfit for cultivation and has no value as timber. This classification was made in order to describe that kind of property and reforested cut-over not properly classifiable as timber lands.”

To offset the testimony of the plaintiff as to the character and value of his land the defendants produced eleven witnesses. G. R. Hicks was acquainted with five or six hundred acres of the land and judging from sales of similar and adjacent tracts he was of the opinion that it was worth from $10 to $12.50 per acre. He also testified that there was a considerable amount of timber left and growing on the land, sufficient to classify it as “woodland.” L. L. Pardue testified that he was well acquainted with one tract containing one hundred twenty acres that is “woodland” and worth $10 per acre. W. Boyd Wilhite testified that he was acquainted with two hundred acres that is “woodland” and worth $10 per acre. Luther Allen was acquainted with five hundred acres and considered it “woodland” and worth from $12 to $15 per acre. W. H. Harris, another witness for the defendants, did not know any of the land and had never been on any of it. His general idea was that all except the swamp land would be worth about' $6 per acre. T. A. Skains is familiar with several hundred acres and considered it “woodland” and cheap at $ltf per acre. A. T. McMoy is familiar with several hundred acres and considers it “woodland” and worth $10 to $12 per acre. J. E. W. Pickel, the tax assessor, has been over all the land, has examined it personally with a view to assessing it and considers it all “woodland” and well worth $7 on the average for assessment, purposes. He says it is better land than that assessed to the Frost. Lumber Industries. His testimony is that he assessed it at the same price as he did all similar land in the parish; that to lower this assessment would be a discrimination against all other land owners in the parish; and that, basing his statement on his actual, knowledge of recent sales all over the parish, plaintiff’s land as a whole is worth from $10 to $15 ¡per acre on the market. 'Joe Hicks knows about five or six hundred acres of the land and considers it worth $10 per acre, but does not think much of the timber. Frank Pardue is familiar with about one thousand acres of the land and considers it “woodland” and worth from $7.50 to $10 per acre. Cooper Templeton knows about one hundred acres but does not know much about its value.

It is objected that the character of testimony produced by the defendants is not admissible in a casé of this kind; that it is not proper to introduce testimony as to what isolated tracts are worth or would sell for, but that the only kind of testimony that is admissible and proper is testimony as to what all of the land is worth and would bring at a cash sale. In support of this position the plaintiff relies on the case of Lyon Lumber Company v. Louisiana Tax Commission, 158 La. 990, 105 So. 39. The rule laid down in that case and relied upon by the plaintiff is recognized as sound and correct, but it is not applicable here. Plaintiff’s land is not one continuous tract. It consists of about twenty-five separate and distinct tracts, not in any sense continuous or contiguous. Nine of these tracts are forty acres each; five or more of them are eighty acres each. The land is situated in two different townships and three different ranges. In the recent case of Peavy-Byrnes Lumber Company v. Louisiana Tax Commission, 132 So. 507, 509, the Supreme Court, in passing on a similar situation, said:

“It is clear that the Lyon Lumber Company case has no application to the facts of this case, and we do not think that the ‘unit system’ can be successfully contended for here, for the reason that the lands of the respective plaintiffs consist of tracts separated by intervening lands, some of the tracts being miles apart.”

A plat of all of plaintiff’s land does not even suggest one continuous tract. On the contrary, it shows twenty-five tracts widely separated. If plaintiff had so de-, sired it is probable that he could have rendered an assessment in two or three classifications and that some of it might have been listed as “cut-over pine land,” but he chose to list it all under this classification as an average. Since he chose to classify it all together, the assessor did the same thing, but he listed it all as “woodland” on the average rather than as “cut-over pine land.” Not only has the plaintiff failed to show by a preponderance of evidence that his land should be classified as “cut-over pine land” and that it is worth less than . $7 per acre on the average, but the defendants have proved by a preponderance of evidence that it is properly classified as “woodland” and that it is worth more than $7 per acre on che average and that it has been properly assessed at $7 per acre.

A careful reading of the testimony of the defendants’ witnesses fails to disclose that the proximity of the land to oil or gas territory has enhanced the selling price of the land. Practically all the testimony indicates that the valuations placed on the land are for farming purposes in small tracts. They are isolated and widely separated and well suited for small farm homes. The value put on the land by the defendants being considerably lower than what was proved to be its average market value in small tracts such as it consists of and being the regular schedule established by the Louisiana Tax Commission and the preponderance of testimony being in favor of the land being classified as “woodland” instead of “cut-over pine land,” the judgment of the lower court will have to be affirmed.

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


author: CULPEPPER, J.

text:
    No. 4000
    Second Circuit (Second Division)
    KEOUN v. GLEASON
    (July 16, 1931. Opinion and Decree.)
    R. H. Lee, of Benton, attorney for plaintiff, appellee.
    W. W. McDonald, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff leased his mercantile store building, located in the town of Plain Dealing, Bossier parish, to defendant, by verbal contract, in the fall of 1928, for the calendar year of 1929, at a monthly rental of $50. At the end of that year there was a balance unpaid on the year’s rents of $252.13. Defendant continued to occupy the leased premises up into the year 1930 apparently under the same agreement as for 1929, until July 12th, when plaintiff filed this suit to recover an alleged balance of $169.23 on rents for the year 1929, and for $600 additional to cover for the whole of the year 1930, which he claimed was due under the terms of his contract with defendant, and which amount he alleged was due and wholly unpaid. The total amount sued for was $769.23, with legal interest from judicial demand. In connection with the ■suit plaintiff prayed for and obtained a provisional seizure of defendant’s stock of merchandise on hand in the store building, also the furniture, fixtures and office equipment owned by defendant in said building.

There was judgment in the lower court in favor of plaintiff in the full amount prayed for, with recognition of plaintiff’s lessor’s lien and privilege upon the property provisionally seized and ordering same sold for the payment of the debt. Defendant has appealed.

Although plaintiff’s counsel has filed briefs in plaintiff’s behalf, .defendant has made no appearance in person nor by counsel, nor has any brief been filed in behalf of defendant. No argument was had before this court by either counsel. Apparently defendant has abandoned his appeal.

Plaintiff alleged on a verbal contract of lease with defendant, in which plaintiff claims it was agreed and understood that the rent was to be paid by the month in advance, or at the beginning of each month; and alleged that the failure by defendant to pay the monthly . rentals as they thus matured constituted a breach of the contract which rendered it optional with plaintiff 'to sue for the rents for the unexpired portion of the year for which the lease was to run. For this reason plaintiff has sued for rents up to the end of the year 19'30. Defendant, on the other hand, both in his answer and in his testimony, contends that the agreement and understanding was, that, while the lease was to run for a year, the rent was not to be paid by the’ month but was to be due and payable at the end of the year. There were no witnesses to the contract and agreement; the contract was verbal, and we have no means of telling which of the parties was right on this point, unless it be that the fact that defendant made partial cash payments on the rent at certain intervals would go to show that plaintiff’s version is correct, else defendant would hardly have made these payments before the end of the year. The trial judge was in much better position to. judge the veracity of these men than we are, and we therefore shall have to be governed by his findings in that particular.

The same is true as to the testimony of these gentlemen on other points raised in the case. One of these was the contention made by defendant that the understanding between him and plaintiff was that plaintiff would have his several colored tenants on plaintiff’s plantation nearby trade with defendant and defendant could charge their accounts to plaintiff and the amounts charged could be credited on defendant’s rent account with plaintiff. Plaintiff stoutly denies he ever had such an agreement with defendant. So again we have a vital point at issue here, which is impossible for us to determine, except by the circumstances. One of the controlling circumstantial facts bearing upon this point is, that plaintiff issued checks to his tenants monthly and let them go and buy their supplies wherever they might wish. After defendant had begun to fall behind with his rent, if plaintiff had had such an agreement as defendant contends, it seems as though he would not have paid his tenants off monthly with checks but would have sent them to defendant’s store, where they could have gotten their supplies without plaintiff’s having to pay ready cash from his own pocket and left his rent claim against defendant go uncollected. There are other facts also bearing upon that point, the particulars of which this court does not deem necessary to go into here, in view of the fact that the trial judge saw and heard the witnesses testify, could weigh the evidence and determine these questions of facts as testified to by the witnesses much more correctly than we can. We see no manifest error in the judgment of the lower court, therefore, the judgment is affirmed.


author: McGREGOR, j.

text:
    No. 4006
    Second Circuit
    FOX FILM CORP. v. BUCHANAN
    (July 14, 1931. Opinion and Decree.)
    Rosen, Hammer, Wolff & Farrar, of New Orleans, and John J. Peters, of Winnfield, attorneys for plaintiff, appellant.
    E. E. Kidd, of Winnfield, attorney for defendant, appellee.
   McGREGOR, j.

This is a suit brought by the plaintiff, Fox Film Corporation, against the defendant, C. Buchanan, based on defendant’s breach of three certain contracts entered into by the parties, by the terms of which defendant agreed tq exhibit certain talking moving pictures named therein, and at the prices agreed upon and set forth in the contracts. The plaintiff is engaged in the production and distribution of talking motion picture films throughout the United States for and to theater owners. On June 3, 1929, defendant, C. Buchanan, was the owner and operator of the „ Buck’s Theater in the town of Winnfield, and as such entered into the three said contracts with plaintiff, in which he obligated himself, among other things, to reproduce and exhibit in his theater thirty-five Fox Sound Entertainment prints, twelve Fox Movietone and Sound All-talking Production prints, and one Fox Movietone Follies print, at times to be agreed upon as set forth in the contracts and at prices stipulated therein. The aggregate sum which the defendant agreed to pay plaintiff for the pictures 'named in the said contracts amounted to $1,125. The defendant accepted one picture under the contract and paid the stipulated price therefor. He then sold his theater to his son, Fred Buchanan, without the latter assuming the three contracts which had been entered into as above set out. Both the defendant and his vendee refused to reproduce or exhibit any more of the pictures or features enumerated in the contracts.

In order to simplify their business and for their mutual protection, practically all of the motion picture producers and distributors of America have adopted a standard exhibit contract which is used by them all in their dealings with theater owners for the reproduction and exhibition of •pictures of any and all kinds. In this contract there are twenty-two separate provisions, one of which, the eighteenth, provides for compulsory arbitration without resort to any court to determine, enforce or protect the legal rights granted in the contracts. It specially provides that the parties will abide by and forthwith comply with any decision or award of the board of arbitration, and that such decision or award shall be enforceable in any competent court.

The contracts involved in this case were on this standard form, so when the defendant refused to reproduce or exhibit the rest of the pictures and features enumerated in the contracts, the plaintiff referred the entire matter to the board of arbitration at New Orleans. There was another difference between the parties which is not included in this suit, but which was referred to the board of arbitration at the same time. The plaintiff secured an award of $1,244 in its favor against the defendant. The defendant refused to pay any portion of this award and as a consequence the plaintiff has filed tins suit for the balance due it under the three contracts named. The suit is not based on the award as such, but upon the contracts themselves. The fact of the submission of the dispute to the board of arbitration is mentioned in the suit, not as a basis of the demand, but to show that the plaintiff has complied with all the conditions and provisions of the contracts.

The defendant filed an answer to the plaintiff’s suit which needs no statement or consideration at this time for the reason that subsequently he filed an exception of no cause or right of action, based on the theory that the three contracts sued 'on are violative of the acts of Congress concerning trusts and contracts made in restraint of trade. This exception was referred to the merits and the trial was proceeded with*. In the course of the trial plaintiff offered in evidence the three contracts sued on. These offerings were objected to by counsel for the defendant on the ground that the contracts in question are violative of the act of Congress known as the Sherman Anti-trust Bill (15 USCA, sections i-7, 15), and that they are contracts made in restraint of trade and, therefore, null and void and inadmissible. The court sustained the objection and excluded the contracts, and then sustained the exception of no cause of action and dismissed the suit at plaintiff’s cost, and a judgment to that effect was signed. From that judgment the plaintiff has appealed. The defendant and appellee has made no defense of the judgment in this court and has filed no brief.

OPINION

As stated above, the defendant’s exception of no cause of action is based on the theory that the three contracts sued on are violative of the act of Congress known as the Sherman Anti-trust Law and are, therefore, contracts in restraint of trade and that, if the contract contains any provision that is violative of the said law, the entire contract is null and void and of no effect, and a party to such contract has no standing in court to enforce any of its provisions. The uniform contract that has been adopted by the plaintiff and all other producers and distributors of motion pictures in the United States has been declared by the Supreme Coifrt of the United States to be illegal in one of its provisions, the eighteenth, for the reason that this provision is violative of the Sherman Antitrust Law in that it is to that extent a contract in restraint of trade. The case in which the question arose is styled United States v. Paramount Famous Lasky Corporation et al., and was brought by the United States in the District Court for the Southern District of New York. The opinion in the case, which is reported in 34 Fed. (2d) 984, was handed down by Judge Thacher and is a very able discussion of the matter. Subsequent to the rendition of this opinion, Judge Thacher issued a similar decree or judgment which specifically held that the eighteenth provision of the said uniform contract and all activities and agreements entered into for the purpose of enforcing it constitute a conspiracy in restraint of trade in violation of the Sherman Anti-trust Act, and that, therefore, the said provision is illegal and unenforceable. But he did not declare or decree that the entire contract was stricken with nullity because of the inclusion of this illegal provision. On the contrary^ article 3 of the decree specially provides:

“Nothing contained in this decree shall be construed as prohibiting any defendant or any member of any defendant Film Board of Trade from performing and/or continuing to perform, or enforcing and/or continuing to enforce, by any lawful means any contractual obligation the performance or enforcement of which is consistent with the provisions of this decree.”

Reading the opinion and decree together it is clear that the court never intended to restrict the right of action to enforce the obligations lawfully assumed in the said uniform contract. The provision for compulsory arbitration is simply a means provided for the enforcement of the obligations of the contract and the fact that that provision has been declared to be illegal does not deprive the parties to the contract of the means provided by law for the enforcement of all the obligations legally assumed. The defendants are enjoined from enforcing the arbitration provision, but nothing in the decree would affect the prosecution of a claim such as the plaintiff herein is asserting against the defendant.

The defendants appealed from the decree in the above cited case to the Supreme Court of the United States, and with Justice McReynolds as the organ of the court, the decree as handed down by .the district court was affirmed. We have been referred to no other case in which the legality of the uniform contract has been attacked, nor has any suggestion been made that any provision of the contract other than the eighteenth is illegal.

In a recent case similar to this one in the Supreme Court of Erie county, New York, styled Fox Film Corporation vs. Aprile, the court said:

“The Federal Court has forbidden the enforcement of the arbitration agreement set forth in the contract entered into between the parties. That Court has determined the illegality of the trust and restrained its continuance. But nothing in its decree forbids or interferes with the prosecution of the claim of the plaintiff herein.”

The case of Paramount Famous Lasky Corporation v. National Theater Corporation (no opinion), brought in the United States District Court, for the Western District of Virginia, and appealed to the United States Circuit Court of Appeals, Fourth Circuit, is very similar to the one now under consideration. In this case, the plaintiff filed suit; alleging a breach of contract for the distribution of certain motion picture films which the plaintiff furnished and for which the defendant agreed to pay, but failed and refused to do so. The contract in that case was written on .the standard form, whicl included provision 18, being the same pro vision that was declared illegal by the Supreme Court of the United States in the case 'cited above. The defendant filed a demurrer, alleging that the plaintiff could not maintain the action because it had failed to comply with a condition precedent to suit, in that it had not submitted the matter in controversy to arbitration in accordance with the eighteenth provision of the contract. In answer to this demurrer the plaintiff contended that, since the said provision had been declared to be illegal and violative of the laws of the United Stat.es, since plaintiff had been enjoined from proceeding to act under it, and since, because of this decree of the court and the accompanying injunction, the board of arbitration had been dissolved and had ceased to function, the failure to submit the matter in controversy to arbitration was no. bar to the prosecution of its claim against defendant under the general provisions of the law. The lower court held with the defendant and sustained the demurrer and dismissed the suit. From this ruling of the court the ¡plaintiff appealed to the Circuit Court of Appeals, Fourth Circuit. In reversing the judgment of the lower court, Judge Northcott wrote an able and exhaustive opinion. 49 Fed. (2d) 64, 65. In referring to the decree in the case of U. S. v. Paramount Famous Lasky Corp., he said:

“In the decree, however, the court clearly shows that its action was directed at the arbitration clause alone, and was not intended to affect the rest of the contract, and, among .other things, the decree provided :
“ ‘Nothiríg contained in this decree shall be construed as prohibiting any defendant * * * from performing and/or continuing to perform, or enforcing and/or continuing to enforce, by any lawful means, and contractual obligation, the performance or enforcement of which is consistent with the provisions qf this decree.’ ”

In the case under consideration the defendant excepted because the plaintiff did comply with the provision relative to compulsory arbitration before that part of the contract had been declared illegal by the court, and. in the case referred to above the defendant demurred because the plaintiff did not comply with this same provision after it had been declared illegal. The reasoning in each case is identical, and since Judge Northcott has covered the subject so correctly, we quote extensively from his opinion:

“The judge below sustained the demurrer on the ground that the arbitration provision was a condition precedent to the bringing of any suit on the contract, notwithstanding the injunction, which prevented arbitration, and based his opinion upon a number of authorities holding' that, where the condition precedent to the bringing of suit was prevented from being carried out by some unlawful act of the parties seeking to set up the injunction as a reason for not carrying out the condition, the excuse or reason could not be availed of by the parties seeking to bring the action. An examination of the authorities relied upon by the court below shows that the act of the party making it impossible to carry out the condition precedent to suit was either a subsequent act or at least not the act itself of incorporating the unlawful condition in the contract sued upon. For instance, in 3 Williston on Contracts, sec. 1939, quoted by the judge below, the statement of the author unquestionably refers to the failure of the party to pay a debt, the thing happening after the contract was entered into. In Patton & Shaver v. Elk River Navigation Co., 13 W. Va. 259, the injunction was granted on account of the acts and default happening after the contract was entered into. In United States v. Van Fossen, 28 Fed. Cas. page 357, No. 16,607, and a line of similar cases cited by tbe judge below (Taylor v. Taintor, 16 Wall. 366, 370, 21 L. Ed. 287; United States v. Marrin (D. CO 170 F. 476), it was the voluntary act of the man enlarged on bail .in going into another jurisdiction where he was arrested, and his own fault, that prevented him from answering on his bond. These cases are easily to be distinguished from the instant case, where a clause of the very contract itself entered into by both parties has been declared unlawful and enjoined. Certainly, it cannot be said, especially in view of the clause in the decree above quoted, exempting the rest of the contract from the taint of unlawfulness, that the whole contract is void, and that in case of breach by either party no remedy could be had.
“The record also shows that, because of the injunction secured by the United States government, the machinery for arbitration set up in the contract ha'd ceased to exist, and the rule that an act of law, due to the act or default of one of the parties, cannot be relied upon as an excuse for his nonperformance of the contract, has no application to the facts in this case. People v. Globe Mutual Life Ins. Co., 91 N. Y. 174; Kansas Union Life Ins. Co. v. Burman (C. C. A.) 141 F. 835, 848; Moller v. Herring (C. C. A.) 255 F. 670, 3 A. L. R. 624. See, also, 3 Williston on Contracts, p. 3295.
“It would, therefore, seem, in view of the cases herein cited, that the proper rule of law is that, where the obligation itself is unlawful and cannot be performed, such performance should be excused, provided the contract is divisible and the remainder of the contract is lawful. It is certainly an anomalous situation in which this plaintiff finds itself under the ruling of the court below. It is enjoined from performing a condition precedent, but no relief is accorded it, because it does not perform the condition.
“Again we think that the learned judge below was in error for another reason, and that is that the contract, as far as it related to the lawful and unlawful parts, was divisible. That this was the opinion of Judge Thacher, in the case of United States v. Paramount Famous Lasky Corporation, supra, is shown by the excerpt from his decree. That such a provision as the one in question here, is separable from the rest of the contract, is borne out by a number of decisions. Western Union Telegraph Co. v. Pennsylvania Co. (C. C. A.) 129 F. 849, 68 L. R. A. 968; (Rederiaktiebolaget) Atlanten Case (D. C.) 232 Fed. 403; United States Asphalt Co. v. Trinidad Lake Petroleum Co. (D. C.) 222 F. 1006; The Eros Case (C. C. A.) 251 F. 45. As to the arbitration clause, see The Fredensbro (D. C.) 18 F. (2d) 983; Danielson v. Entre Rios Rys. Co. (D. C.) 22 F. (2d) 326.
“The authoritative rule as to separable or divisible contracts is laid down by Lord Mansfield, in Boone v. Eyrne, 6 Term Reports 573, as follows: ■ ‘Where mutual covenants go to the whole of the consideration on both sides, they are mutual covenants: but where the covenants go only to a part and where a recompense may be had in damages, it is a different thing.’
“It has been expressly held that, where agreements in ’ restraint of trade were unlawful in part, they were enforceable as to the parts that were not unlawful, and this holding runs back to the earliest authorities. Mallen et al. v. May, 11 M. & W. 653, 12 L. J. Ex. 376; Price v. Green, 16 M. & W. 346, 16 L. J. Ex. 108. See, also, Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187; Chicago, etc., Co. v. Pullman, etc., Co., 139 U. S. 79, 11 S. Ct. 490, 35 L. Ed. 97; McCullough v. Virginia, 172 U. S. 102, 19 S. Ct. 134, 43 L. Ed. 382.”

The judgment sustaining the • demurrer was reversed and the case was remanded to the lower court for trial.

In the case of Metro-Goldwyn-Mayer Dist. Corp. v. Bi-Metallic Inv. Co., in the District Court of the Second Judicial District of the State of Colorado (decision unreported), the court, referring to the decree of the United States District Court for the Southern District of New York in the case of United States of America v. Paramount Famous Lasky Corporation et al., supra, in which the Metro-Goldwyn-Mayer Dist. Corp. was one of the defendants, said:

“By the express terms of the injunction, the defendant therein (the plaintiff herein) was not deprived of its duty to perform or right to enforce, by any lawful means, any contractual obligation, consistent with the provisions of the decree.”

The doctrine- applied to this case is well expressed in Corpus Juris as follows:

“It is no defense to an action for goods sold and delivered that plaintiff was a member of an illegal trust or combination to interfere with the freedom of trade and commerce, since the illegality of the combination was collateral to the contract of sale, and could not taint it with illegality or make it contrary to public policy.” 13 Corpus Juris, 503.

The case of Columbia Picture Corporation v. Bi-Metallic Investment Co. (D. C.) 42 F. (2d) 873, 874, is on all fours with the case at bar. A demurrer similar to the exception in this case was filed, and in overruling it Judge Symes said:

“Counsel for defendant, in support of the demurrer, argues that the contract is illegal, violates the Sherman Anti-Trust Act (15 USCA, sections 1-7, 15), having been used in furtherance of a conspiracy in restraint of trade, and that no cause of action can arise for the alleged breach of the same. * * *
“Counsel, in support of the demurrer, rely upon United States v. Paramount Famous Lasky Corp. (D. C.) 34 F. (2d) 984. In that case Judge Thacher held that section 18 providing, as it does, for compulsory arbitration, and fostered by an understanding between the distributors that any exhibitor, whether or not a party to the agreement adopting the form of contract, who should not abide by the terms of the same, would not receive films from other distributors, was evidence of a conspiracy in restraint of trade in violation of the Sherman Anti-Trust Act (15 USCA, sections 1-7, 15). The action was in equity, brought by the United States against the Paramount Famous Lasky Corporation and others to enjoin a conspiracy in restraint of trade. The court, for the reasons stated, held for the government.
“But Judge Thacher’s able discussion and the law of that case are not in point here. This is a suit at law on contract between private parties. Eliminating section 18, the contract is clearly one that the parties might lawfully enter into. This action, reduced to its simplest terms, is to recover the agreed price for goods sold and delivered. The arbitration clause is not invoked nor referred to in complaint, and unless brought to the attention of the court by pleadings not yet filed, is not necessary to a decision of the issues presented by the bill, which on demurrer are to be taken as true. As the pleadings stand now, the defendant owes the plaintiff an agreed amount as rent or license fees for pictures it refused to take and pay for, in violation of the contract. * * *
“The attack here is collateral. Granting that the arbitration clause is all that is claimed, the point is immaterial, unless it later appears that the plaintiff must rely upon it in order to prove his case.”

It is admitted that provision 18 of the contract is illegal and violative of the Sherman Anti-trust Act, and that the arbitration board provided for has ceased to function. The defendant takes the position that, since the contracts contained this illegal provision, the remaining portions cannot be enforced as valid. Under the express stipulations of the decree of the court in the case of United States v. Paramount Famous Lasky Corporation, the plaintiff is not enjoined or prohibited from enforcing any obligation of the contracts, the enforcement of which is not inconsistent with the said decree. Where the object and the consideration of a contract are good and the contract provides an unlawful means of enforcing it, the parties are not prohibited from enforcing it in the courts under the laws provided for the same. The elimination of the arbitration provision of this contract does not leave the plaintiff free to refuse to furnish the pictures called for, nor could the defendant refuse either to take or pay for the same. The essence of these contracts is that the plaintiff agreed to furnish certain pictures and the defendant promised to exhibit and pay for them. They both agreed that in case differences should arise these should be referred to a board of arbitration and that the award of this board would be binding and that any action brought in court could be based on this award. This provision for arbitration has been eliminated from the contract by the court, but this fact does not destroy the rights or obligation of either party, nor does it take from them the right to resort to the courts to enforce their respective rights under the contract. To hold otherwise would be tantamount to holding that a defendant could keep the goods or property of a plaintiff in all cases where the parties had agreed upon unlawful means for the enforcement of plaintiff’s rights, even though the object and consideration were both legal in all other respects. In this case the contracts aye complete in themselves after the elimination of the illegal provision for compulsory arbitration. Therefore, the partiés are as free to resort to the courts for the enforcement of their rights thereunder as if the said illegal povision had never been incorporated therein. The exception should have been overruled and the plaintiff should be allowed to introduce in evidence the contracts with the elimination of the illegal eighteenth provision.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby avoided, annulled and reversed, and the case is remanded to the lower court for further proceedings in accordance with the views hereinabove ex pressed; the defendant to pay the costs of this appeal and all other costs to await the final determination of the cause.


text:
    No. 4065
    Second Circuit
    DAVIS v. RANDALL
    (July 14, 1931. Opinion and Decree.)

      Thornton, Gist & Richey, of Alexandria, attorneys for plaintiff, appellee.
    A. D. Flowers, of Jena, and Polk & Robinson, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued for damages in the sum of $416.50 on his own behalf for expenses incurred by him in having his minor son, Wayne Davis, treated and operated on for injuries inflicted upon him by defendant, and for the sum of $10,000, for the use and benefit of his said minor son for damages sustained by him as the result of injuries, inflicted upon him by defendant on June 6, 1929, when he alleged that defendant struck said minor son of plaintiff about the head and body with a solid block of wood, one inch thick, four inches wide, and eighteen inches long, and otherwise beat and bruised the said minor, Wayne Davis. He alleged the assault was unprovoked, premeditated, and unwarranted, and set forth .the injuries received by the said minor, expense incurred in having him treated, and prayed for judgment accordingly.

The defendant in answer admitted the assault and set up as a defense both self-defense and mitigation of damages; alleged that Wayne Davis was a boy of indecent and immoral habits, and that, despite defendant’s protest and parental objection, he continued to associate with defendant’s young daughter, Juanita Randall, 'slipping her away clandestinely, taking her oh trips and otherwise improperly associating with her; that Wayne Davis, upon learning of defendant’s objection, procured and carried a pistol, with the avowed and communicated intention of using it on defendant; that, at the time of the assault, Wayne Davis advanced upon defendant with a threatening motion, and, in defense of what defendant thought to be an attempt to do him bodily harm, he assaulted the said Wayne Davis.

Upon these issues the case was tried in the lower court, resulting in judgment for plaintiff for the amount of expenses incurred by him in the sum of $416.50, and for the use and benefit of the minor, Wayne Davis, in the sum of $1,583.50. From, this judgment both plaintiff and defendant have perfected an appeal to this court.

The defendant is a man of forty-eight years and weighs approximately two hundred pounds. At the time of the assault, Wayne Davis weighed approximately one hundred eighteen pounds. Davis and two boys had entered a drug store for the purpose of securing cold drinks. All three were standing at the soda fountain, Davis with his elbow on the counter. Defendant approached from the back of Davis and struck him in the head with a piece of wood approximately one inch thick, four inches wide, and eighteen inches long, knocking him to the floor in a semi-conscious condition. Defendant then continued to strike him on the body and leg with his club and again struck him in the head,' when He was stopped by a deputy sheriff who had entered the building. Not a word was spoken by either before the assault and young Davis did not know defendant was on the premises. It was a most brutal, premeditated and malicious assault by defendant upon Wayne Davis, without any provocation at the time. The plea of self-defense is entirely without -merit.

Davis and defendant’s daughter were both attending .the same, high school. He was seventeen years old and she was fifteen. They were sweethearts and at least thought they were very much in love with one another. There is nothing unusual about such a condition. Ever since there have been boys and girls attending school, they have had .their sehoolday sweethearts, and, unless something not dreamed of will happen, they will always in the future continue to have their sweethearts. Defendant objected to his daughter going with Wayne Davis and punished her on one occasion for so doing. Without philosophizing on the correctness of his action and .the effect it had on preventing her from seeing Wayne Davis, it is unnecessary to say that she continued to see him and talk with him at school and, on a few occasions, slipped out and went for short rides with him. The evidence- discloses that on one occasion, some weeks’ time before the assault, she requested Davis to drive her to Standard, a few miles away, to see a friend. He did so and left her there. On returning to Olla, his home, he found the girl’s mother looking for her. He readily told her where her daughter was and, with another daughter, drove to the place where he had left the girl and brought her back to her mother. On another occasion, at night, Wayne and a girl friend of his picked up defendant’s daughter, Juanita, and took her for a short drive; and on still another occasion, Wayne and a boy friend picked her up at church about 7 o’clock in the evening and took her for a short ride, returning her to the church.

There is no attempt made to show anything immoral in any of .these acts or to show any immoral or indecent conduct on the part of Davis. All of these incidents occurred at least a week or more before the assault, and it is not shown that young Davis had been in the company of Juanita Randall for at least a week before the assault. There was an attempt to prove that his general reputation was bad, but the preponderance of the evidence is that he was a natural boy for his age; that he went with the best girls of the community, and there is no testimony to show him to be immoral or indecent, or bad company for any girl. This, we think, is due to be said in fairness to the boy and girl. However, we must also recognize the right of a parent to object to his daughter’s associates, however little he may accomplish by it.

We give little credence to the young man’s carrying a pistol to be used on defendant. He did not have a pistol when he was assaulted, and, if he had carried a pistol before this, it would not have justified the assault. The proof of threats made by Wayne Davis against defendant is not strong; however, if made, would not have justified the assault, and we are sure the defendant was not afraid of being injured by this stripling of a boy. At the time he so brutally assaulted him, he could just as easily have taken him with one hand, turned him across his lap, and paddled him with the other.

We think the evidence justifies us in holding that defendant’s act in assaulting Wayne Davis was done in revenge and for the purpose of preventing him from ever again seeing defendant’s daughter. It was clearly done without provocation, was deliberate and coolly executed, with most disastrous results to the young man, and without any mitigating circumstances in law, and defendant is liable for all damages caused thereby.

The record shows that plaintiff expended on his son for doctor’s, medical, and hospital bills, etc., the sum of $416.50, and the judgment in favor of plaintiff individually for that amount is correct. The amount of $1,583.50 awarded for the use and benefit of the minor, Wayne Davis, we think is entirely inadequate to cover the injuries received, the suffering and the humiliation. It is conclusively shown that Wayne Davis’ skull was fractured in two places, and that, after a period of some three months after the assault and beating were administered to him, he began having a form of epileptic fits every time he would get the slightest tap on the head, or become overheated, and the fits grew worse and more prolonged each time, until some time in August, over a year after the assault, he had to be operated, on and have a portion of his skull removed and the bloody water drained from his brain; and that, as a result of that operation, he has lost a year from college and will be unable to do anything for a period of from twelve to eighteen months following the operation.

It is also shown that he was beaten about the back and hips, and that he could not stand on one foot for several days immediately following the beating; and that this unmerciful, unprovoked, and malicious assault took place in the presence of some eight or ten of his friends and associates, naturally causing him great humiliation, as well as pain, suffering, and permanent injury. It is shown that, while the doctors are of the opinion that he will finally recover from the operation performed on him, he has a small unprotected hole in his skull, where an opening had to be drilled in connection with the operation, and that he will always have the fear of a possible recurrence of the epileptic fits, which the doctors say may happen.

We think a judgment for his use and benefit of $5,000 will be adequate. It is therefore ordered, adjudged, and decreed = that the judgment of the lower court be amended by increasing the amount awarded for the use and benefit of the minor, Wayne Davis, to the sum of $5,000, and, as amended, that the judgment be affirmed.