author: Nicholls, 0. J.

text:
    No. 13,038.
    State ex rel. David C. Klotter vs. Police Board of the City of New Orleans.
    Syllabus.
    1. Under Use powers granted to it by law, the Police Board of the City of New Orleans is vested with authority to grant new trials to parties convicted by it of infractions of its rules and regulations — the power being-exercised at its discretion if rules on that subject have not been adopted, and if rules have been adopted then to be exercised under the terms thereof.
    2. The order of the Board granting a new trial is generally final, and can not be set aside unless inadvertently given; certainly not in the absence of' legal cause, made ordinarily to appear contradictorily with the party interested.
    3. An order granting a new trial, as a general rule, vacates a former judgment without any special order to set it aside, and leaves the case as though no trial had been had.
    4. Where the Board, outside of its proper powers, revokes an order for a new trial which it had legally granted, mandamus will lie to it, commanding it to proceed to a new trial of the case. State ex rel. Klotter vs. Police Board, 747.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. A. O’Sullivan for Plaintiff, Appellee.
    Argued and submitted April 8, 1899.
    Opinion handed down April 17, 1899.
   The opinion ol the court was delivered by

Nicholls, 0. J.

The plaintiff in his petition represented that he .had been for several years a sergeant of police of the city of New Orleans, under the control and supervision of the Police Board of said city, under Act No. 68 of 1888.

That he was charged with oppression in office, conduct unbecoming- an officer and insult and abuse. That under the powers granted to said Police Board1 it acted in a judicial capacity and tried the ■ charges so brought against him and found him guilty of same, and therefore passed sentence on him, dismissing him from the police force.

That on the-'day of August, 1898, feeling aggrieved at the ver- • dict and sentence, he filed a petition in which he alleged that since his conviction he had discovered additional evidence of which he was ignorant at the time of his trial. That the charges against him were unfounded and that he could and would establish his innocence were .a rehearing granted him.

. That the Board being convinced of the error committed in discharging relator from the police force, after due deliberation, on the •28th of September, finally granted a rehearing of relator’s case, and fixed the hearing thereof for October 12th, 1898.

That on that day the prosecuting witness and those for the defence appeared before said Board, when on motion the Board without hearing plaintiff and against his will and consent, revoked the order granting a rehearing, and refused to proceed in the examination of the charges against him.

That said board is vested with judicial powers quoad the members ■of the police force; that their rulings and judgments are of as binding effect upon said board, as they are on those subject to them.

That the Board has discretionary powers either to grant or refuse rehearings, with which discretion the courts can not interfere. That it having granted petitioner a rehearing, he was by the granting ’thereof reinstated in his position on said force, subject to the charges pending against him. That the judgment of dismissal having been set aside, he, by said order, acquired the right of trial and investigation into the charges brought against him and he could not have been deprived of said right but by due process of law.

That the Board refused to try said charges; that it was a duty imposed on. it by law.

That the law had assigned no relief by ordinary means which he could invoke to protect his right other than the equitable writ of mandamus.

He prayed for an order directed to said Board, commanding it to-proceed with the trial of the charges brought against him, and determine the same; that the writ be made peremptory, and that the court grant such orders and decrees as plaintiff is entitled to under the law and in equity. ’

The defendant was ordered to show cause, if any it had, why the-relief prayed fox should not be granted.

The Police Board seems to have made no return.

The case was tried, and judgment rendered by the District Court commanding the Police Board of the city of New Orleans to proceed under the new trial granted to plaintiff with the trial of the charges brought against him, and to hear and determine the same.

The judgment recites that it was rendered after hearing, pleading, evidence and counsel, by reason of the law and the evidence in favor of the plaintiff, and against defendant.

The defendant appealed, but filed no brief, and made no appearance in the Supreme Court.

The transcript comes up without evidence, though the district clerk certifies that it contained all the proceedings had, documents filed and' adduced upon the trial of the cause.

Opinion.

It was stated by counsel of the plaintiff in his argument before the court that the order of the Board granting a new trial was set aside, not in the exercise of a supposed reserved discretionary right to do so, but because in the opinion of the city attorney, it was without power- or authority to have granted as it had, the order for the new trial' which was thus set aside.

By the 16th section of the Act creating the Board it was empow-ered in its discretion to enact, modify and repeal, from time to time, orders, rules and regulations of general descipline wherein, in addition to such general rules as might be deemed expedient by said Board, there might be particularly defined, enumerated and distributed, the powers and liabilities of the officers, clerks and members of the police force and wherein should be declared the mode of appointment to office, the maner of discipline, and procedure of trial and removal from office of the said officers, clerks and members of said force, provided that such laws, ordinances, orders, rules and regulations, forms and modes of procedure, should not conflict with any of the provisions of the same act.

We find no restriction or limitation placed upon the Board under the broad powers given to it by this section in respect to its authority to grant new tifiáis and fix the circumstances under which they should be allowed.

If such a limitation or restriction exists outside of the act itself, it has not been in any manner, brought to our attention. We have not been informed of the adoption by the Board of any rules on this subject which the granting of the new trial in this particular case contravened.

We have to deal with matters from the standpoint that the Board having power to grant new trials, had exercised the same in favor of the plaintiff in this particular case, and that having so exercised it, it had revoked its action, without notice or hearing for no assigned reason.

The District Court in reaching its conclusion evidently acted upon evidence before it of which evidence we have not the benefit.

Under the circumstances in which this matter reaches us, we are justified in either dismissing the appeal or in affirming the judgment appealed from, upon the presumption of correctness which attaches prima facie on appeal to the judgments of the District Court.

In view of the statement made by counsel that the Board of Police Commissioners is in doubt in respect to the extent of its power of control over matters of new trial and of that question being of a public character which should be set at rest, we think it best to say that they are within the power and control of the Board, to be exercised by it, in their discretion if rules on the subject have not been adopted, •but if such have been adopted, then to be granted or refused under the .terms of the rules. That if a rehearing is once granted its action is .generally final and not subject to revocation, certainly not in the absence of legal cause, shown contradictorily with the party interested.

The power to undo is not as great as the power to do.

In the Am. and Eng. Ency. of Law verbo “New Trial,” the rule as to the order for a new trial and its effect is announced as follows:

“The order of the court on a motion for a new trial is filial, and can not be set aside unless it was inadvertantly given.”

“An order granting a new trial, as a general rule vacates a former judgment, without any special order to set it aside and sweeps away the verdict and leaves the case as though no trial had been had.”'

This latter statement covers the position taken before us, by the appellee. He contends that the effect of the order granting a new trial, was to sweep away the order of dismissal, and leave his ease open for trial and decision. That the order of revocation was one beyond the power and authority of the Board to make and that he is entitled to require the Board to hear and dispose of the charges preferred against him. We think he is entitled to that relief apd we reach this conclusion the more readily because we feel satisfied that the revoking order was not due to any change of opinion, on the part of the Board in respect to the correctness or propriety of its order granting a new trial, but by reason of its (erroneously) supposed want of authority to have granted it.

Our judgment will have the effect of restoring the status as it existed prior to the order of revocation, leaving the order for a new trial standing, as one granted in the exercise of its discretionary powers by the Board and placing matters where the Board, when acting freely, placed them.

(See on this subject, 24 Amer. Law Reg., 531; 104 N. C., 742; 15 S. E. Rep., 99, 100, 103; 41 N. W., 743; 60 N. W., 1084; 67 N. W., 94.)

For the reasons assigned the judgment appealed from is hereby : affirmed.


source: Caselaw Access Project

author: Nictiolls, O. J.

license: Public Domain

text:
    No. 13,153.

      V. Schwan & Co., Ltd., vs. J. J. Forgey et als.
    Syllabus.
    Wnore the alleged error o£ the Court of Appeals Involves but a small amount, the complaining party should endeavor to have it rectified by motion for a new trial, or amendment of judgment, before applying to this court for a writ of review.
    IN RE V. Schwan & Go., Ltd., applying for certiorari or writ of review to the Court of Appeals, Third Circuit, State of Louisiana.

      Andrew Thorpe and T. H. Thorpe for Applicants.
    Submitted April 8, 1899.
    Opinion handed down April 11, 1899.
   The opinion of the court was delivered by

Nictiolls, O. J.

We do not think this case calls for the exercise of, the powers vested by Article 101 of the Constitution, in the Supreme Court, to have the judgment of the Court of Appeals reviewed. It. presents no exceptional features calling for action on our part.

The principal ground of complaint seems to be that portion of the judgment which dissolves plaintiffs injunction with damages. It is-claimed that there was no basis for damages, as the injunction was never made operative or enforced. Plaintiff made no attempt to have-this error (if error it was) rectified by an application for a new trial, or an amendment of judgment. This complaint involved only twenty-five dollars, and plaintiffs should, at least, have sought relief on rehearing.


author: Mr. Justice Blanchard.

text:
    No. 12,995.
    Charles A. Spencer et al. vs. F. M. Welch et als.
    Syllabus.
    A. sells certain landefl property to B. and takes B.’s promissory notes for part of the purchase price, secured by special mortgage, containing the non alienation clause, on the property sold.
    B, without paying the 'notes, sells the property to C (a corporation). Subsequently C, with its property and effects, passes into the hands of a receiver appointed by the United States Circuit Court.
    A purchaser of the notes from A, suing in a State Court on the notes, praying judgment against the maker with recognition of mortgage rights, is met by an exception that the property, upon which the mortgage securing the notes rests, is in the custody of a Federal Court, and, therefore, the State Court is without jurisdiction to proceed with the suit.
    Judgment sustaining this exception held to be error. A suit to recover judgment establishing plaintiffs’ claim against the maker of the notes and recognizing their mortgage rights brings about no conflict of interest so far as the receiver is concerned, and no conflict of jurisdiction so far as the Federal Court is concerned. When it comes to selling the property under the mortgage and judgment, another question arises not here presented.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Toorhies, J.

      Williams & Sugar for Plaintiffs and Appellants.

      Robert Martin, Curator ad hoc, for Defendants, Appellees.
    Argued and submitted January 12, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the Court was prepared in greater part by Mr. Justice Miller prior to his decease; acted on and adopted by the Court afterwards.

Completed and handed down by

Mr. Justice Blanchard.

The plaintiffs appeal from a judgment dismissing their suit on certain promissory notes, executed by defendants and secured by mortgage.

After the execution of the mortgage, the defendants appear to have sold the property. There is in the record the admission that when the suit was brought the mortgaged property was in the possession of the Receiver of the Teche Railroad & Sugar Co., Ltd., appointed by the United States Circuit Court, and held by such Receiver as part of the assets of the said company.

The defendants, through the curator ad hoc appointed to represent them, on the ground that the property was in the hands of the Receiver, excepted to the jurisdiction of the lower court, and the exception was sustained. Hence, this appeal.

Defendants are in no way connected with the Railroad and Sugar Co., nor is the Receiver a party to this suit. No conflict of either interest or jurisdiction arises.

The plaintiffs are prosecuting their suit against the makers of the notes and asking recognition of their mortgage rights arising under an act of mortgage containing the pact de non alienando.

The proceeding by which the Railroad & Sugar Company and its property were placed in the hands of the Receiver, could not affect plaintiffs’ rights against their debtors, nor the mortgage they granted, ■except only the obstacle to the seizure of the property arising from its possession by the receiver, an officer of the United States Circuit Court, whose possession the sheriff could not disturb.

The case here does not present the question of any disturbance of the receiver’s possession.

In so far as the petition seeks a judgment on the notes, with recognition of the mortgage, we can conceive of no reason to question the jurisdiction of the lower court.

With such a judgment liquidating plaintiffs’ debt and recognizing their mortgage, it will be for them to make the prop.er application to the United States Circuit Court for leave to subject the property to the paramount mortgage resting on it when the Railroad & Sugar Company acquired it and when the Receiver was appointed. High on Receivers, pp.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, the exception be overruled, the cause remanded and reinstated for trial, and that defendants pay costs of both courts.


author: Blanchard, J.

text:
    No. 12,939.
    Mr. and Mrs. James O’Rourke vs. New Orleans City and Lake Railroad Company and New Orleans Traction Company, Limited.
    Syllabus.
    1. A boy eleven years of age, standing at night on the off-side of the downtown track of defendant company’s street railway, waiting for a car on the up-town track, which was farthest from him, to pass, and that ear having passed, without looking up the track' nearest him to see whether or not it was safe to cross, steps on the track twelve or fifteen feet in front of an approaching down-town car, trips and falls, is run over and his feet crushed. Held: A ease of want of care on his part barring recovery of damages, it being shown that notwithstanding effort on part of motorneer to arrest car, it could not be done in that distance.
    2. The motorneer had a right to suppose the boy was waiting for his car to pass, and to expect he would remain where he was out of danger until it had passed.
    ON APPEAL from the Civil District Oourt for the Parish of Orleans. Bightor, J.

      E. Evariste Moise, Ouinio F. Socola and John Wagner for Plaintiff, Appellant.
    Denegre, Blair & Denegre for Defendants, Appellees.
    Argued and submitted February 21, 1899.
    Opinion handed down March 7, 1899.
    Rehearing refused March 20, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs are the parents of Walter O’Rourke.

They sue for twenty thousand dollars for his use and benefit, and for five thousand dollars on their own behalf as his parents.

The cause of action is that one of the street cars of defendants ran over the foot or lower part of the left leg of Walter O’Rourke and crushed it, in consequence of which the leg was amputated between ■the ankle and knee. The averment is that the injury to the boy was occasioned by the fault of defendants, through their employees.

The accident occurred about 7:30 o’clock on an evening in December, 1896.

It was a dark, cold, drizzly, winter night.

The car was running on the Prytania street line and going down town. It was an electrically propelled car, in charge of a motorneei- and conductor, and several passengers were aboard.

The place of accident was on Prytania street, between Amelia and Antonine streets, in the city of New Orleans. The block between these streets is only forty-eight feet wide, and one square away, going towards the rear of the city, the two streets merge into one.

This narrow block, on the river- side of Prytania street, is occupied by the barroom and grocery of P>artello Mancuso. Besides the front entrance to this bar and grocery, there are side entrances — one on Amelia street, another on Antonine street.

It was a Sunday night. In consequence the house was closed, but the side entrance on Amelia street permitted the ingress and egress of neighbors and friends visiting the Mancuso family.

Among those visiting there that Sunday afternoon and evening were Walter O’Rourke, a bright, active, intelligent lad, eleven years cf age, and his younger brother, Albert, seven years old.

They were friends of the Mancuso boys and had been playing with the latter during the afternoon in the yard on the Mancuso premises back of the bar and grocery store.

When it became dark the boys came into the house and sat around the bar and grocery with the Mancusos until 7:30 o’clock, when the two O’Rourke lads left to go home.

They went out by the side entrance on Amelia street. They lived on the lower side of Antonine street, between Prytania street and St. Charles avenue, or something over half a square from the Mancusos.

Antonine street is below Amelia street, and to reach their home it was necessary for the boys to walk a few steps from the Mancuso entrance on Amelia street to Prytania, thence down Prytania to Antonine street, then across Prytania and across Antonine to the lower side of the latter, thence to their father’s house.

There is evidence that when Walter O’Rourke left the Mancuso store he was chased out by Peter Mancuso, one of the boys with whom he had been playing.

Peter Mancuso so testified, and that the reason for his running" after the O’Rourke boy was that the latter “had called him names.”

■ "Walter O’Rourke denies this and insists that when he left the store _he did so leisurely.

This is a matter of some importance, since the evidence of the motorneer is to the effect that the boys came running from under the shed covering the sidewalk in front of the Mancuso store, and the one hurt, in his haste, jumped on the track immediately in front of the advancing ear. So that if Walter was- chased out of the store by Peter Mancuso, nothing was more natural than that, expecting Peter to follow, he continued his flight out across the banquette and into the .street, not noticing the car until too late.

In point of fact Peter did not follow him out on the street, but stopped at the exit door.

While the testimony, for what it is worth, of the little seven year-old brother is slightly corroborative of the elder brother on this point, we incline to think the weight of evidence favors the view that the boys came running out of the side entrance of the Mancuso store, and that Walter continued his running across the banquette and into the -street.

After reaching Prytania street, a few steps from the entrance on Amelia street through which he had mado his hasty exit from the store, Walter O’Rourke turned down towards Antonine street, going ■diagonally across the banquette towards the outer curb. He reached this about midway of the front of the Mancuso store and jumped across the gutter into the street. From the curb, ox outer edge of the banquette, at this point to the outer rail of the down town track of the street ear line is only about thirteen feet.

He says that, noticing a car coming up town on the track farthest from him, he stopped before reaching the near track to let it pass, and then proceeding to cross, his foot tripped on an unbevelled plank laid between the rails of the track, causing him to fall, and in a moment the ear was upon him.

He testiflos he neither saw nor heard this car until he fell, and then he heard the motorneer call out to hirrf to “look out,” and realizing his danger he lunged himself forward and succeeded in clearing the track -except as to his foot which was run over and crushed.

Continuing, he says at the time he tripped and fell the car was not over twelve feet from him. This is a damaging statement for him. Accepting his own version he, after leisurely waiting for an up town <car on the far away track to pass, deliberately, without looking or listening for a ear coming on the down town track, at a crossing which he admits was dangerous and about which he had been repeatedly cautioned, steps on to the track at a time when a rapidly approaching car is not more than twelve or fifteen feet from him.

He says the gong of the down town car was not ringing while that of the up town car was, and that the ringing of the gong on the latter ear is what attracted his attention to it.

The motorman of the down town ear swears the gong on his car was-ringing.

But whether it was or not, and if not ringing holding it to be negligence on part of defendants, will it be seriously contended that it was-not the duty of this boy, as a matter of care and prudence, to have had due regard to his surroundings and to to have looked up the down town track before venturing upon it that dark, drizzly night? Not doing this, and getting upon this track when the approaching car was-only from twelve to fifteen feet from him, must be held to be such contributory negligence on his part as bars his recovery.

When he came out of the Mancuso entrance an Amelia street he had, if he had exercised it, a view up Prytania street for a considerable distance and could easily have seen an approaching down town car several blocks off. This view of the street got better and better as he approached and came on to the banquette of Prytania street, and,, finally, when he passed off the banquette on to the street itself there was not only no reason why he should not have noticed and taken heed of the advancing car, even though it were not sounding a gong, but it was reprehensible want of care and negligence on his part not to have done so.

North Hudson Street Ry. Co. vs. Flanagan, 32 At. Rep., 216; Sheets vs. Connolly St. Ry. Co., 24 At. Rep., 482 (Supreme Court of New Jersey); Costello vs. Third Avenue R. R. Co., 49 N. Y. Sup., 869; Mullen vs. Street Ry. Co., 41 N. E. Rep., 664; Masser vs. Chicago, etc., Ry. Co. (Iowa), 27 N. W. Rep., 776.

“Carelessness of child eight years old, who, with his view unobstructed, runs directly in front of an approaching car, which could be-plainly heard, prevents recovery for death.” Syllabus in Morey vs. Street Ry. Co., 50 N. E. Rep., 530.

While no one should be held to a degree of care and caution beyond' his years, a boy of eleven years and four months of age can not be relieved from the exercise of all care and prudence.” McLaughlin vs. N. O. & Carr. R. R. Co., 48 La. Ann., 23.

If Walter O’Rourke was standing on the off side of the down town track, as he says he was, waiting for the passage of the car on the up town track, the motorneer on the down town car not then over fifteen or twenty feet away had a right, if he saw him, to suppose he was waiting for his car to pass and to expect he would remain there out of danger until it had passed. He could not anticipate the boy would carelessly attempt to cross the track just ahead of the car, and the boy having done so, and having tripped and fallen upon the track and gotten hurt, he has no case for the recovery of damages.

In Fleishman vs. Railroad Co. (Pa.), 54 At. Rep., 119, it was said:

“Where a motorman saw a child standing in the street, away from the track, in time to stop the ear before reaching it, without anything in its attitude to indicate that it was about to cross the track, and the child, when the car was in ten feet of it, started to cross and was run over notwithstanding the effort of the motorman to stop the car as soon as he saw the child start towards the track, the company was not liable.”

See also 49 La. Ann., 7.

This car was going at about half speed, or about, five and a half miles an hour. The evidence shows that to stop a car, such as the one in this case, going at that rate of speed, requires about seventy feet. At full speed, or full allowable speed, eleven miles an hour, it would have required a hundred feet or more to have arrested its progress.

When the boy started to cross the track twelve to fifteen feet ahead of the car, and the mishap of tripping and falling overtook him, it was simply impossible for the motorman to have then arrested his ear in time to prevent the catastrophe.

But, with much insistance, it is urged, on behalf of the boy, that he would have gotten over safe had he not tripped and fallen, and that what caused his trip and fall was the unbeveled, projecting edge of a plank between the rails,' projecting above the rail nearest the boy.

It is contended that his foot striking this projection he fell upon the track and was run over; that if the projection had not been there he would not have fallen; that the railroad company was charged with the duty of laying the planks between the rails of their tracks and keeping the same in order; that the particular plank or planks over which the boy stumbled had been newly laid, and the edges thereof near the rail had been carelessly left unbevelled; and that these unbevelled plank edges constituted a dangerous obstruction for which the company must be held responsible.

It is shown, on part of the railroad, that the edges of the plank •covering of their tracks are bevelled only to prevent the planks from being torn up by the wheels of passing vehicles getting between the rail and the ends of the planks, and not as a precaution against foot passengers stumbling over the same in crossing.

Besides, if these planks were left unbevelled, which is not established, the projection above .the rail was only from a half inch to an inch, and this constitutes no such faulty construction or dangerous obstruction as would justify holding defendant company responsible in damages because of a person tripping over the same and falling.

It is a fact of universal recognition that the normal condition of the .streets of cities and towns is that of unevenness much greater than what is shown here, even taking plaintiffs’ view of the same.

The street and track where young O’Rourke crossed it was in a reasonably safe condition for a person exercising ordinary care and prudence. This is all that is required of municipal corporations, and the rule can hardly be extended further as to street 1‘ailways.

The case of Peats vs. St. Charles Street R. R. Co., 42 Ann., 541, directly negatives plaintiffs’ contention with regard to this plank over which it is claimed the boy stumbled. See also Weisse vs. City of Detroit, 63 N. W. Rep., 423; Waggener vs. Town, 26 S. E. Rep., 352; Cook vs. Milwaukee, 27 Wis., 191.

While it is not charged in plaintiffs’ petition that no head-light was burning on the cy in question at the time of the accident, it was argued at bar and in the brief of plaintiffs’ counsel and the claim set up that its absence constituted such negligence as justified recovery: Plaintiffs’ evidence fails to establish that the head-light was not burning, and the motorneer swears positively it was. Besides, all the probabilities point to its having been lighted and burning on the front of the car that night.

The judgment of the court a qua was against the pretensions of plaintiffs, and we find no ground for ’disturbing the same.

Judgment affirmed.


author: Nicholes, 0. J. Breaux, J.

text:
    No. 12,875.
    Goldman & Masur vs. L. H. Goldman. In re Goldman & Masur applying for certiorari, or writ of review, to the Court of Appeals, Second Circuit, State of Louisiana.
    Syllabus.
    T. A contract by a vendor of a' mercantile business and good will not to engage in a similar business in a specified place for three years, and stipulating for the payment by the obligor of a certain sum to the obligee, in the event of a violation of the agreement, provides for “liquidated damages” and not for a penalty.

      2. It will not do to apply to the results of a violation of an agreement “not to do” the rules applicable to a violation of an obligation “to do.” There is an entire breach of an obligation “not to do” the moment the obligor does what he has covenanted “not to do,” and the obligee is entitled to sue the obligor at once for the breach; he is not forced to wait until the end of the term fixed as that during which the obligor had covenanted not to engage in business, in order to ascertain (even if he could do so) the actual damage to result from the obligor's action.
    3. An amount stipulated to be paid by way of “liquidated damages” is sub ject to reduction, under certain circumstances, no less than is that stipulated to be paid as a “penalty.”
    In either class of eases when reduction is permissible, and the obligee sues for the whole amount upon the instrument evidencing the agreement, the onus is upon the party claiming a reduction to establish the extent of the same.
    The obligee is entitled to rest upon the amount primarily agreed upon as that due, and is not called on to make extrinsic affirmative proof of his damages.
    In the absence of counter proof, he is entitled to judgment upon establishing the contract and showing its violation.
    4. The mere length of time during which defendant may have observed, or may have violated his obligation not to engage in business for a certain period, furnishes no basis upon which to estimate a reduction either of a' penalty or of liquidated damages.
    On Rehearing.
    1. Questions open. Issues between parties in another suit had not been settled and were not a bar to review.

      2. Ruling heretofore. This ruling was not binding upon the Supreme Court.
    -3. Law and facts. Issues involved interpretation of a penal clause of contract.

      A. A. Gunby and B. T. Larrikin for Relators.

      Respondent Judges for themselves.
    Hudson, Potts & Bernstein (C. J. Boatner of Counsel) for L. H.. Goldman, Respondent.
    Submitted on briefs August 1, 1898.
    Opinion handed down March 7, 1899.
    Rehearing refused (reasons assigned) April 7, 1899.
   On application for rehearing by Breaux, J.

The opinion of the court was delivered by

Nicholes, 0. J.

It is represented in the petition, that on the 14th of January, 1894, Goldman & Masur, a commercial firm, composed of Simon Goldman and David Masur, both residents of the city of Monroe, parish of Ouachita, in this State, purchased from L. H. Goldman a stock of goods in the city of Monroe, and the good will of the business of selling goods, boots, shoes, notions, etc., carried on by L. EL Goldman in that city.

In order to protect and secure the good will so purchased, L. BL Goldman executed and filed a written obligation to pay the petitioner the sum of two thousand dollars, in the event that he should, within three years after the date of the sale, carry on, or assist any other person to carry on in person the business of selling or retailing dry goods, notions, shoes, etc.

That they filed suit in the Fifth District Court of the parish of Ouachita on the 5th day of August, 1895, alleging that L. H. Goldman had openly and continuously violated his contract; and, after answer filed and trial had in that court, the judge rendered judgment in favor of petitioners, for the sum of two thousand dollars, with 5% interest from judicial demand; from which an appeal was taken to the Second Circuit Court of Appeals.

That the Court of Appeals decided, that there had been a breach of the contract, according to its plain terms, but that petitioners could only i scover the amount of damages they could prove were caused by the open violation of the contract, holding that an obligation to pay a specified amount for breach of that contract did not liquidate or fix the amount to be paid._

That the Circuit Court reluctantly remanded the suit to the District Court, where it was again tried, and a large amount of evidence introduced to show the nature and extent of the damages caused by defendant’s breach of contract; but the judge a quo held, that the proof was not specific enough, and non-suited plaintiffs, which judgment was affirmed by the Circuit Court at Monroe, on the 19th day of May, 1898, and the rehearing refused on the 27th day of that month and year.

That, they are aggrieved by that decision, which is a practical denial of justice; that the amount of damages caused by the violation of the good will of a business, is not susceptible of proof by any known or satisfactory rule; that the clear intention of the parties to that written contract sued on was, to fix the amount of damages or penalty to be paid, in the event said good will was violated.

That such contracts have been held to be valid and binding by the decisions of this court, and effect and interpretation given to them, according to the clear intention of the parties.

That the judgment of non-suit completely and effectually destroys all right and interest of petitioners in the contract; for, it is manifestly impossible to comply with the rules of proving the damages laid down and required by the Court of Appeals.

That the decision of the Court of Appeals was rendered after the Constitution of 1898 was adopted and in force; and is subject to review by this court.

That the opinions and decrees of that court are at variance with the jurisprudence of the State of Louisiana, and in contravention of' the laws of the State of Louisiana, as to the rights of parties under-such contracts, and the proper effect and construction of the same, and they aver, that the ends of justice require, that that decision should be brought up for review by the Supreme Court of Louisiana.

They, accordingly, pray, that a certiorari and all proper orders issue, directing that the papers and proceedings in the suit above mentioned' be sent up for review by this court.

The respondent judges for answer to the writs of error and certiorari issued, annex copies of their opinions and decrees pronounced' and filed in the suit on the 15th of January, 1897, and May 19, 1898, stating that the opinions contained a full and succinct statement of all the questions of law determined by them in the cause, and of the facts bearing thereon, as shown by the record of that cause. They pray to be discharged for costs and general relief.

The following is an extract from the opinion and judgment rendered by them on the 15th of January, 1897:

“This suit is brought to enforce the penal clause in the following agreement, entered into between plaintiffs and defendant, to-wit.:—

“ ‘Know all men by these presents, whereas, on or about the 14th day of January, 1893, L. H. Goldman sold to Goldman & Masur, his mercantile business at Monroe, Louisiana, consisting of dry goods, notions, boots, shoes, hats, and gent’s furnishing goods, and, also, the good will of said business; and, whereas, since that time the said L. II. Goldman has purchased the interest of W. M. Ethridge in the mercantile business of E. & E. at Monroe, Louisiana; and, whereas, the said E. & E. stock is partly composed of dry goods, notions, shoes, .and gents’ furnishing goods, et cet.j now, therefore, it is mutually agreed and contracted by and between the parties hereto, that the said L.II. Goldman may sell the stock on hand of said E.& E., but that after this stock is closed out, the said L. H. G. hereby obligates and binds himself to, and in favor of Goldman & Masur, not to engage in the retail, mercantile business at Monroe, La., for three years from and .after this date, for the sale of dry goods, notions, shoes and gents’ furnishing goods, either in his own name, or in the name of another, •or of a company in which he is interested, nor assist another to do so.

“ ‘In event of a violation of this contract, the said L. H. G. agrees to forfeit and pay to the said G. & M. the sum of $2,000.00, to be re•coverod in any eo^irt of competent jurisdiction.

“ ‘February 24th, 1893.’ ”

“The plaintiffs aver, that in a short while after the execution of the above contract, the defendant openly and actively violated the obligations assumed by him therein; that, early in March thereafter, he organized a mercantile corporation for the purpose of conducting a gen•eral retail, mercantile business in the city of Monroe, of which he was the president and active business manager; and carried on said business in said city in active competition with them, and to their great detriment and damage; that the intent, purposes and object of the said contract, was to fix and liquidate the damages which defendant was to pay in case of a violation of the agreement by him; that they had been damaged more than. $2,000, but, as the amount had been fixed at that sum, they could not recover more; and, therefore, prayed lor judgment for that sum.

“The defendant plead a general denial, admitting the execution of the contract.

“He further specially averred, that, the contract was one with a penal clause; and, if it could be enforced at all, it could only be done to the extent of the actual damages inflicted upon plaintiffs by the alleged violation; and he specially denied that he had violated the agreement in any degree whatever; or that damages to any amount had been suffered by plaintiffs.'

“The lower court held, that there had been a breach of the contract; and, as the parties had determined the sum themselves to be fixed paid as damages, gave judgment for the full amount; from which judgment, defendant is appellant to this court.

“The main issue in the case turns upon the question whether the sum of $2,000 named in the contract as .the sum which defendant agreed to pay in case of its violation by him, is to be considered as a ponoMy in the sense of articles 2127 and par. 5 of Art. 1934 of the Civil Code, and can therefore be modified or reduced by the courts in case of a parlial execution of the principal obligation; or, is it to be considered as 'stipulated’ or 'liquidated’ damages, in the sense that it is the amount agreed on and fixed by the parties in advance as the damages that the plaintiffs would suffer on account of a breach by defendant; and thus having been fixed and liquidated by the parties themselves, they intended that the plaintiffs should recover that sum and no other; in which case the courts would be powerless to reduce the amount; and could only award the amount named in the contract. * * *

“In the instant case the parties to the contract have not expressly declared that the sum named should be considered as stipulated or liquidated damages; nor, have they used any terms which necessarily imply that the whole sum was to become due; even on the least or a partial breach of the agreement; nor is the contract one of that kind where the damages are not capable of being ascertained by any satisfactory or known rule. * * *

“In the present case, the primary object to be attained by the parties, the cause and object of their agreement in aid and to secure the performance of which this penalty was stipulated, was, that the defendants should not engage in the retail mercantile business in dry goods, boots, shoes, etc., for the space of three years, in the city of Monroe. It was not to recover the sum of $2,000. And plaintiffs, instead of suing for the penalty, might have enforced a specific performance.

“Otherwise, we would have a facultative obligation on the part of defendant, either to abstain from business, or to pay the money and engage therein — in other words, purchase the right from plaintiffs; in which case, he would have the option, and not plaintiffs, and the obligation to pay the money would be a distinctly primary obligation, with the agreement not to engage in business as only secondary to be enforced only in case of non-execution of the primary.

“But plaintiffs repudiate any such construction, and rightly maintain, that they had the option either to specifically enforce the principal obligation, or sue for the penalty.

“Such being the case, we can not presume that the intention of the parties was to make this secondary obligation of paying the money, ■extinguish the principal one of refraining from business, nor to base the principal one upon it. Poth. Obl. No. 341. * * *

“We conclude, that the intention of the parties was, to prevent the defendant from engaging in the business specified, for the entire term of the contract, and that the penal clause was stipulated for the purpose of accomplishing that end; and, inasmuch as the payment of the whole sum would novate or satisfy ihe original or primary agreement, thereby releasing him therefrom, we conclude that the amount named should be considered technically as a ‘penalty,’ and not as ‘liquidated ■damages.’

■» *- * «jn ^e cage bar, there is no such ‘contrary agreement,’ no express agreement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement.

“And the principal obligation having been ‘partly executed,’ and, there having been only a ‘partial breach’ of the contract, the other provisions of the articles mentioned apply also, viz.: the right of the court to modify the penalty, to reduce the damages agreed on to the loss suffered, and the gain of which' the obligee has been deprived. We do not conceive that any of the authorities cited by plaintiffs’ counsel on this point, militate against this proposition.

“They merely hold, that such contracts as the one before us, are not invalid, as being in restraint of trade, or contrary to public policy; and, therefore, the penalty may be enforced when incurred. But they nowhere touch upon the point whether there can be a modification of the penalty, where there is only a partial breach, or has been .a partial execution. In none of them was there any claim of a partial execution, or a partial breach only; and, consequently, no claim for a .modification or reduction of penalty.

“The case of Solomon vs. Diefenthal, 46th Ann. 897, cited and quoted by plaintiffs’ counsel, in no way conflicts with the foregoing .positions, but rather inferentially sustain them. * * *

“In the ease of the present defendant against the present plaintiffs, reported in the 47th Ann., p. 1463, this same demand for $2,000 penalty for violation of this contract was pleaded in compensation of the note for $6646.46, given by the vendees as part of the purchase ■price of the' goods and business which they had bought from the defendant.

“Objection was made to its consideration by the court, upon the . ground, that it was not ‘equally liquidated and dem'andable,’ as provided by Article 2209 of the Civil Code, notwithstanding the question of the breach of the contract and the resulting damages had been gone into fully without objection from the plaintiff in the ease, and the court had as much evidence before it as we have.

“Rut the court declined to consider the demand holding it not to be “equally liquidated’ and demandable ‘with the note sued, on.’

“The court say: ‘The defendant pleaded in compensation the amount of the penal obligation of the plaintiff, not to engage in business.’

“ ‘The penal obligation is, of course, conditional in its character, and, if susceptible of enforcement at all, the amount is modified in case of ■the partial execution of the principal obligation. • The plaintiff denies any violation of the agreement in aid of which the penalty was stipulated; ox, if any, insists it was but partial and inconsiderable. The demand in compensation must be fixed, ‘equally liquidated and de■mandable’ as the Code puts it.

“ ‘We think it clear, that the demand on a penal clause, unliquidated and undisputed, can not be pleaded in compensation against a promissory note.’ (Italics ours.)

“It will be seen that it is indirectly held, that the demand in the penal clause in this contract was ‘unliquidated.’

“If then ‘unliquidated’ why? Because it was subject to reduction, to modification in the case of a partial execution of the principal obligation, for, if it was liquidated damages’ it wras not subject to any ■sredudion or modification; and was ‘equally liquidated’ with the note. as was ably contended for by the counsel for the defendant there, now counsel for the plaintiffs here.

“It is true the demand in compensation was rejected upon the-double ground that it was not ‘equally liquidated’ and not ‘equally demandable’ with that of the plaintiff, as a breach had to be proven dehors the instrument; and that the decision might have been rested( upon the latter ground alone; but it is, nevertheless true, that the character of the demand as to its being fixed and liquidated damages, and not a penalty subject to reduction was distinctly put at issue by the pleadings; was fully argued by counsel, and directly passed upon by the court, and held to be unliquidated, and consequently, a penalty subject to modification and reduction.

“Therefore, then, both upon reason and authority, and upon the construction which we think the Supreme Court has already placed upon this instrument, we consider the amount of $2,000 as ill the nature of a penalty, subject to modification and reduction upon a partial execution of the principal obligation.

“With this view of the legal construction of the clause of the contract which this suit is brought to enforce, we are brought to the consideration of the question of fact presented, to-wit: Was there a breach of the principal obligation; if so, to what extent, and in what sum were plaintiffs actually damaged by said breach; the maximum limit for which the court render a judgment being the said sum of $2,000?

“The evidence is voluminous, and that of the immediate parties very conflicting, as well as acrimonious.

“The extent to which this opinion has already progressed in arguing and determining the legal questions involved, forbids any extended statement or analysis thereof; and, we must content ourselves with stating only the conclusion we have drawn; referring to the able opinion of the judge ad hoc in the case of L. II. Goldman vs. Goldman & Masur, which is in evidence in this cause, for a more extended statement, and which contains a very fair resume of the facts.

“We think the evidence clearly proves that there was a breach by the defendant in the establishing and conducting of the business of the Parlor City Company, Limited; that he continued the business for two months, but, that, with the exception of these two months, and of the fact of the carrying on of this business, he has observed the obligations of the contract, and, therefore, that the contract has been executed by him in by far the greater part of the time.

“Therefore, the plaintiffs are entitled to recover the real and actual' damages suffered by them — that is, ‘the loss really suffered, and the gain of which ‘(they)’ have been deprived.

“This damage, the evidence fails to furnish us a basis to estimate. There is page on page of it, but it all seems to have been directed to the disputed point, whether there was a violation of the agreement by defendant. Around this point, the testimonial battle raged, and but little attention was paid to the matter o‘f actual damages.

“Especially was this so with plaintiffs, their counsel resting on the position, that when he had established a breach of the principal obligation, the instrument itself fixed the damages.

“But, when he apparently endeavored to'enter on a line of testimony tending to prove actual damages, he was met with an objection of irrelevancy which was sustained by the court, and he was cut off from the euquiry.

“Under the view of the law of the case taken by the judge a <iuo,. this ruling was correct, but, under the views expressed by us, it was erroneous.

. “What plaintiffs might have been able to prove on this line had they been allowed to do so, of course, we are unable to say, but it was very material evidence, as without evidence showing their actual damage, they could not recover.

“Plaintiffs have a cause of action. The contract has been violated,, and damages are due them, such as they have suffered. It is probable from the record, that they have suffered some.damage; and we think, that entire justice requires under the circumstances, that they should' be allowed another opportunity to show what that damage is. W& have concluded, therefore, to remand the ease.

“We do this with reluctance, as it is to the interest of both parties' that this litigation should cease; but, if we should attempt to estimate-the damages from the evidence before us, we would either have to proceed upon an illogical basis, or resort to mere guess work.

“It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court to be proceeded with in accordance with law and the views herein expressed; the plaintiffs and appellees to pay the costs of this appeal, those of the lower court to await the final decision of the cause.”

On the return of the cause, the District Court non-suited the plaintiffs, and they appealed.

On the second appeal, the Circuit Court handed down an opinion in which it said:

“This case was before us at the January term, 1897, and the issues involved, and the nature of the obligation sued on were fully set forth and discussed in our opinion rendered on January 15th, 1897.

“In our decree of that date, we remanded the case for a new trial, for the reason that the district judge had declined to receive evidence .to show how much plaintiffs had been damaged by defendant’s breach of the contract sued on.

“This contract had, in the suit of L. H. Goldman & Masur been plead in compensation, and a large amount of testimony taken in support of the plea, which, also was before us on the former appeal, (but with it we could not find sufficient evidence upon which we could ibase an estimate of the damages or loss suffered by those plaintiffs, so we then said: ‘If we should attempt to estimate the damages from the evidence before us, we would either have to proceed on an illogical basis, or resort to mere guess work.’

“The case was again tried in the District Court, and a judgment of non-suit rendered, and plaintiffs appealed.”

After reciting the evidence found in the record on the second trial, •the court said:

“The judge ad hoc who tried the case the last time felt unable or unwilling to fix upon any sum, and rendered a judgment of non-suit against plaintiffs, and we can not say that there was any error in the . judgment.

“It is therefore ordered, adjudged and decreed that the judgment ..appealed from be affirmed at appellant’s costs.”

The judgment of the Circuit Court was based upon the ground, that it had been shown that the defendant had violated, during only a short period, the obligation which he had assumed not to carry on or assist any .other person in carrying on at Monroe, Louisiana, the business of selling or retailing dry goods, notions, shoes, etc., during the term of three years. That having observed the same for the balance of the term, this observance was a partial execution of the contract, .entitling defendant to a reduction of the amount which had been fixed in the agreement, as that which was to be paid to the plaintiff. That under such circumstances, the burden was not thrown upon the defendant of showing the extent of the reduction to which he was entitled, but upon the plaintiff, of establishing affirmatively to what extent he had been damaged.

The court seems to have reached the conclusion, under the belief that plaintiffs would occupy a different position when they were suing for enforcement of a conventional penalty, from that which they would, if suing upon a demand for liquidated damages, when the defence set up was a partial execution by the defendant of his contract.

Article 2125 of the Civil Code declares the penal clause to be “the compensation for the damages which the creditor sustains by the non-execution of the principal demand” — that “the creditor can not demand the principal and the penalty together, unless the latter bo stipulated for the mere delay” — and article 2121 that the penalty may be modified by the judge when the principal obligation has been partly executed; while article 1934 (an article found in the Code under the heading of “damages resulting from the inexecution of obligations”) declares, that “when the parties by their contract have determined the sum that shall bo paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid even on a partial breach of the agreement.”

It will be seen, that the law provides for a reduction in ease of parlial execution, as well in a case where damages have been liquidated by agreement as one where a “penalty” has been provided for — the claim for reduction in the case of a penalty being cut off only “in case of a contrary agreement,” and in the other case only there is an express agreement that the sum fixed by the contract shall be paid even on a partial breach of agreement.

Article 2222 declares, that “he who claims the execution of an obligation, must prove it. On the other hand, he who contends that he is exonerated, must prove the payment, or the fact which has produced the extinction of the obligation.”

The plaintiffs in this ease have not attempted any judicial proceedings by injunction to force the defendant to comply with his obligation of not engaging in business, nor have they asked in this suit 'either for a specific performance of that obligation without damages, or for a specific performance with damages added.

They have abandoned all claims for a specific performance, and sue upon the instrument for the full amount of the damages expressly stipulated and fixed in the agreement which it evidences.

The agreement between the parties as to the amount which defendant would have to pay in the event of a breach of the contract under such circumstances, can not be ignored by the court, or by the parties,, and be made to count for nothing, whether the amount should have been agreed upon by way of “penalty” or by way of “liquidated damages.”

It would stand (even if the case were a proper one for reduction) asprima facie proof of the extent of defendant’s rights in either case, and to he accepted as the measure thereof, unless defendant could affirmatively establish not only his right to a reduction, but the extent of the reduction.

Plaintiffs, upon establishing the obligation and proving the breach, and exhibiting the contract between the parties as to what should be the amount to be due by the obligor in case of the breach of the contract, could safely rest upon the latter until a right to a reduction and the extent of the reduction should be shown. It may he, that had the plaintiffs brought suit claiming partial damages, and coupled with the same one for an injunction, they might as plaintiffs he held to proof of the special damages, but they did nothing of the kind.

The Circuit Court on the first appeal before it of this cause reversed' the judgment of the District Court, which was for plaintiffs, for the amount fixed by the parties in their agreement,and remanded the ease.

On the return of the case, plaintiffs attempted to prove up the specific amount of the damage received by them, and were met in their attempt to offer evidence to establish the same by objection on the part of the defendant, that such testimony was irrelevant.

The District Court overruled the objection, but, after consideration of the whole evidence, non-snited the plaintiffs.

They appealed, and the judgment of the District Court was affirmed.

We are of the opinion, that the court erred in forcing upon the plaintiff the obligation of establishing by proof the amount of the damage they had sustained, precisely as if the agreement between the parties as to the amount the defendant was to pay in case of a-breach by him of his obligation had not -been made.

In the ease at bar, the obligation for the violation of which damages are claimed, is not an obligation “to do,” but one “not to do,” and, in the very nature of things, as said in the ease of Stafford vs. Shortreed, 17 N. W. Rep. 756 (referred to in Solomon vs. Diefenthal, 46 Ann. 897), and, as recognized by the Court of Appeals itself, the .amount of the damages must be “the subject of mere conjecture, and could not be established by evidence even approximately.”

Plaintiffs would be in ignorance of the extent of the business conducted by the defendant to their detriment.

If the damage admitted of being gauged at all, ‘ defendant would .be in much better position for doing so, by reason of his knowledge of his own affairs, than plaintiffs would.

The mere length of time during which defendant may have ob■served, or may have violated his agreement not to engage in business for a certain period, would famish no basis whatever upon which to estimate a reduction either of a penalty or of liquidated damages, for the whole damage may have resulted from damage done upon one ■single day.

It will not do to apply to the results of a violation of an agreement '“not to do,” the rules applicable to a violation of an obligation “to do.”

There is an entire breach of an obligation “not to do,” the moment the obligor does what he has covenanted “Pot to do,” and the obligee is entitled to sue the obligor at once for the breach; ho is not forced to wait until the end of the term fixed as that during which the obligor is not to engage in business, in order to ascertain (if he could do so), the actual extent of the injury to result from the obligor’s conduct.

There is no hardship in holding the latter to a strict observance of his duty, and the results of the same.

lie was well advised of the expressly stipulated consequences of his actions, and when he made an election as to his course, he should be •compelled to pay the money stipulated to be paid. (Bagley vs. Peddie, 16 N. Y. 469 S. C.; 69 Am. Dec. 713.)

In obligations “not to do,” the right of the obligee to enforce a “specific performance” by injunction is absolute, unless waived, while in obligations “to do” the right to a “specific performance” by "mandamus” or otherwise is dependent upon circumstances and to a considerable extent discretionary.

By interpreting defendant’s obligations to be those resulting from -an agreement providing for stipulated damages, instead of those re-suiting from an agreement stipulating a penalty, we would not decide that the agreement created a “facultative obligation” entitling defendant to recede from his obligation not to engage in business upon payment of two thousand dollars, thus depriving plaintiffs of any legal power of control over defendant’s actions in that respect.

Plaintiffs would themselves, in that event, determine what the situation would be.

The latter’s ability in the present case to do so would be broader by holding the agreement to be one calling for liquidated damages, than it would be by holding it one calling for a penalty.

The amount stipulated to be paid by defendant in the event he should violate his engagement not being for a mere delay in doing, something, plaintiffs would be restricted in their remedy, should the agreement be considered as evidencing a penal obligation, either to demanding a special performance of the obligation by means of an “'injunction” or to a demand for the penalty; they could not ask both.

On the other hand, if it should be held that the amount stipulated to be paid was simply fixed as liquidated damages to cover a breach for the whole term the plaintiffs might elect (should the situation permit) to claim a smaller amount at a given date and simultaneously exact specific performance for the future by injunction.

In the ease before us, the obligation “not to do” is not in aid of the enforcement of a primary obligation “to do’’ something.

There is no second obligation back of this obligation “not to do.’r The parties were stipulating as to this single obligation for its own breach, not of that of any other obligation.

They were contracting with direct reference to a fixed amount to be paid by defendant for violation of this particular obligation, not for the consequences of some other.

Agreements of the character of the one involved in this litigation by which a party bound himself “not to engage in business during a certain time” and stipulating for the payment by the obligor of a certain sum to the obligee in the event of a violation of the agreement, have been very generally held to provide for liquidated damages, and not for a penalty.

A number of decisions on this subject with comment upon them will' be found in the American and English Encyclopedia of Law under the head of “Liquidated Damages,” subdivision, “When a stipulation-will be treated as a liquidation of damages.” (1st Edition, page 854.)..

It is there stated that “it is now well settled that a sum (if it be at-all reasonable) stipulated to be paid as liquidated damages for the breach of a covenant, will be regarded as such, and not as a penalty, where, from the nature of the covenant, the damages arising from its breach are entirely uncertain, and can not be ascertained upon an-issue of fact.”

The following, among other cases, were cited as instances of this class of contracts. “An agreement not to engage in a business or occupation named within a specified time or at a certain place, or within certain boundaries or limits, such as a contract that obligor’s steamboats will not navigate certain waters for three years. (California Steam Nav. Co. vs. Wright, 6 Cal. 259 S. C.; 65 Am. Dec. 511.) An obligation to discontinue the operation of a laboratory near obligee’s real estate after the expiration of five years.(Grasselle vs. Loudon, 10th Ohio St. 349). A covenant to refrain from the manufacture of stearine or star candles in a specified county and State until a time named (Lange vs. Werk, 20 Ohio St. 520), or, from publishing, editing or printing any newspaper v 'thin a certain village, while obligee continues in,that business (Dal ln vs. Williams, 17 Wend., N. Y., 447), or from engaging in the express business in a certain town in competition with obligee (Cushing vs. Drew, 97 Mass. 445). An agreement by a physician, surgeon, or apothecary (Sainter vs. Ferguson, 1 Mac. & G., 286), or an attorney or solicitor, (Galsworthy vs. Strutt, 1 Exch. 658) not to engage in the practice of his profession within certain limits, or before the expiration of a given period — a covenant by a partner upon dissolution of partnership and sale to partner, not to engage in the business within twenty miles (Nobles vs. Bates, 7 Co. N. Y. 307) — a contract not to run a stage on a certain line in competition with obligee (Pierce vs. Fuller, 8 Mass. 222) — a contract by a vendor of a mercantile business and good will not to engage as proprietor, clerk or employee in the general mercantile business for seven years within certain specified townships (Stewart vs. Bedell, 79 Pa. St. 336). A covenant that obligor will not go into the-butchering business in a certain town, unless with obligee’s consent,, under a penalty of four hundred dollars (Streeter vs. Rush, 25 Cal. 67), or a marble shop under a forfeit of one thousand dollars.”

It is stated that in cases of this character where the intent of the1parties is so clear, the use of the word “forfeit” in the clause providing for damages in ease of a breach, is not regarded as of much weight. (Hall vs. Crowley, 87 Mass. 304.)

That where a stipulation in a contract of an amount to be paid by one party to the other for the breach of a covenant is held to be liquidated damages, there can be no controverted question of fact except as to breach of the agreement as the stipulation absolutely and alone controls the recovery and fixes its amount (Welsch vs. McDonald Va. 8 S. E., 711).

This latter proposition is too broadly stated to be thoroughly correct in Louisiana.

The opinion of the Circuit Court was based to a very considerable extent upon the decision of this court in Goldman vs. Goldman & Masur, 47 Ann. 1464, in which referring- to the very instrument involved in this litigation we stated it could not be urged in support of a plea of compensation filed by the defendants therein, in a suit brought by the present defendants as vendor on notes given by the latter for price of a stock of goods purchased by them.

The Circuit Court gave to that decision a much wider scope than we intended it to have.

We simply held that the instrument in question was not of that fixed absolute character as to justify its being iised at once by way of compensation.

That it was to a certain extent a conditional obligation as it would require extrinsic evidence — evidence de hors the instrument to establish not the extent of the liability of the plaintiffs, but the fact of the right of its present enforcement.

The Circuit Court having found that plaintiffs had showrt a breach by defendant of his obligation, it should have reversed the judgment of the District Court, and given plaintiffs a judgment as prayed for in their petition.

We are of the opinion, that the agreement between plaintiffs and the defendant fixed the sum of two thousand dollars as being liquidated damages to be paid to plaintiffs in the event of its violation.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed, that the judgment of the Court of Appeal of the Second Circuit in the matter of Goldman & Masur vs. L. H. Goldman, on appeal before it from the Fifth Judicial District Court for the parish of Ouachita, and the judgment of said District Court in said matter which was affirmed by the said Court of Appeal, be and they are hereby annulled, avoided and reversed, and it is now ordered, ad- . judged and decreed that the plaintiffs do have judgment against and recover from the defendant, the sum of two thousand dollars, with legal interest from judicial demand until paid, with costs in this court, in the Court of Appeals, and in the District Court.

On Application for Rehearing.

Breaux, J.

Plaintiffs, through their counsel, urge that this court has fallen into an error in its decision on the application for writ of certiorari in the issues involved as res nova, when instead, we should have considered them settled by the effect usually given to the thing already passed upon and finally adjudged with the force and effect always attending the res judicata.

The position taken renders it necessary to restate some of the facts.

In the ease of Goldman vs. Goldman and Masur filed in 1895, the court a quo decided that the defendants, Goldman and Masur, could not plead as an offset to a note, he (L. H. Goldman) held, the bond he had executed in their favor in which he had obligated himself, for a specific time, not to engage in the retail merchandize business in .Monroe, La.

■ Defendant’s demand, based on a contract not to engage in business under a penalty of two thousand dollars, if plaintiff violated it, was not allowed; but defendants were reserved all their legal rights to proceed against plaintiff for its violation.

On appeal to this court the judgment was affirmed; the court holding that the defendants pleaded in compensation the amount of the penal obligation of the plaintiff not to engage in business, and that this penal obligation was conditional in its character, and if susceptible of. enforcement at all, the amount is modified in case of the partial execution of the principal obligation; that the plaintiff denied any violation of the agreement, in aid of which the penalty was stipulated; if there was any, it was but partial and inconsiderable; that a demand in compensation must be equally as liquidated as the claim against which it is pleaded, and that demand in a penal clause, unliquidated and disputed, cannot be pleaded against a promissory note.

The judgment of the lower court, including the reservation made, •was affirmed. Goldman vs. Goldman & Masur, 47th Ann. 1463.

Afterward, Goldman and Masur brought suit on the contract, and on appeal to the Court of Appeals it was decided that the proof of the nature and extent of the damages caused by defendant’s breach of contract was not specific enough, and non-suited plaintiffs, as previously they had been non-suited in the District Court.

1st. Defendants complain of the decree of this court rendered in the proceedings by the writ of certiorari, on the ground that it was too late to decree that the obligation involved made prima facie proof of the extent of defendants’ right to be accepted as the measure of damages, unless the defendants can affirmatively establish not only a right to a reduction, but its extent.

In our view, the decision before cited is not as far reaching in its effect as interpreted by the learned judges of the Court of Appeals. It held that both claims, the claim of plainriff on his note secured by mortgage, and the claim of defendants, were not “equally liquidated and demandable,” and that the demand in a penal clause cannot be pleaded in compensation against a promissory noté.

It does not follow from those views as expressed in the cited decree that the burden of proof was made thereby to shift from plaintiff to defendants, and that the prima facie presumption arising from such an obligation, was brought thereby to an end.

The claim presented in support of defendants’ (Goldman and Masur) plea, did not, as in case of the note, identified with the mortgage, make proof of itself. It would have been needful in case the proof had been admitted to prove the breach of contract and dispose of the questions which do not arise in a suit on a note and mortgage, and for that reason this court sustained the lower court’s ruling dismissing the demand as in case of non-suit.

2nd. Defendants set forth that this case was before the Court of Appeals for the Second Circuit at its January term, 1897, and that that court, following the decision before cited, construed the contract sued on, as an obligation with a penal clause, entitling plaintiff, on proof of its breach, to the recovery of such damages as he might prove growing out of the breach; that the character of the obligation had been determined, and with whom was the onus of proof, as between the parties, was finally decided and the cause remanded for the sole purpose of enabling plaintiff to show the quantity of damages which he suffered; that the decree was conclusive and final, and not subject to the revision of the court; that the Circuit Court on second appeal in the case, was limited to the sole question of determining, from the evidence, how much damages, if any, plaintiff had suffered by the alleged breach of contract; and that the certiorari jurisdiction of the Supreme Court having attached long subsequent to the rendition of the first decree rendered in January, 1897, it is without jurisdiction to review any legal question decided then, and is limited to the review of the cause, as presented to the Circuit Court at its last meeting, in which the judgment now under review was rendered.

We find as a fact, it is not disputed that the last judgment rendered during the current year is clearly within the jurisdiction of this court under Article 101 of the Constitution, and that all issues involved may be reviewed by this court.

The contention is that the ruling in the prior case has already disposed of the issues now raised, and that it is not within the range of possibility in law to modify them in a subsequent appeal.

There was nothing finally decided in the previous appeal. The evidence failed to furnish a basis to estimate damages. It appears, there was page after page taken, all directed to the question of violation of the contract vel non. We are informed that on this question a testimonial battle raged, and the matter of damages received little attention, particularly, from plaintiffs, who chose to rest their case, exclusively, on breach of the principal obligation and the consequent damages therefrom arising in any contingency, as fixed in the bond; and when, in the course of the trial, they did attempt to prove actual damages, they were met by the objection of irrelevancy, which was sustained by the court. This, under the view of the Court of Appeals, was erroneous. The court found that plaintiffs had a right of action, but they must prove their damages, and, to give the opportunity, the-case was remanded.

Thus, it appears that the decision which the defendant contends, fixed a right in his behalf, was one remanding the case to hear evidence under the court’s opinion as to the burden of proof.

We have examined the decisions cited by defendant’s counsel, and find that they sustain the rule, that whatever has been decided by the Supreme Court of the United States on one writ of error obviously cannot be re-examined on a subsequent writ brought in the same-suit. Clerk vs. Keith, 106 U. S. 464. Citing a number of decisions-of that court to the same effect.

Here the Supreme Court has not passed upon the point at all. The law of the case may be in full force and effect in the court a qua, and. should have been given due regard — as was given — on the trial in the District Court, but when it comes here, the ruling no longer controls. The defendant had acquired no vested right growing out of the court’s view.

The plea of res judicata was not pleaded; if it had been, it would have had nothing upon which to stand; there was only a ruling as to .the effect to be given to testimony, which ruling is binding upon the Court of Appeals and the District Court, but not upon this court, called upon; under the law, to review all issues not finally disposed of.

3rd. We take up defendant’s last objection in the order of his argument, that the questions involved being exclusively questions of fact, this court is without jurisdiction.

We have already given our reasons for entertaining jurisdiction, ■and from our standpoint it is manifest, after considering the reasons given, that the questions involved are not questions of fact. They involved throughout, the construction to be placed on an agreement containing a penal clause, and we held that the issues were not so ■settled as to render it no longer possible for the Supreme Court to correct an error it conceived had been committed.

We are constrained to differ from counsel, and hold that the court has jurisdiction.

Rehearing refused.

Mr. Justice Monboe not having been a member of the court when this case was submitted, takes no part in the opinion.


author: Nicholls, O. J.

text:
    No. 12,955.
    L’Hote & Co. vs. Wm. C. Fulham.
    Syllabus.
    'The purchaser of property sold at sheriff’s sale, In foreclosure of a mortgage, does not acquire under his purchase the chandeliers and brackets placed In the dwelling house thereon by the owner. They are movables, not immobilized by destination.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Howe, Spencer & Gocke for Plaintiffs and Appellees.

      E. Howard McCaleb for David G. Baldwin, Third Opponent, Appellant.
    Argued and submitted April 5, 1899.
    Opinion handed down April 17, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiffs having obtained judgment against the defendant, issued execution thereon and seized certain chandeliers, mantel ornaments and other articles alleged to belong to W. 0. Fulham, but which were in the possession of D. G. Baldwin.

The latter filed his intervention and third opposition alleging that he was the owner of the articles seized inasmuch as he had purchased' at foreclosure sales the buildings in which they were situated, and as they were immovable by destination, they were subject to the mortgage foreclosed and passed by the sheriff’s sale to the purchaser of the-real estate.

L’Hote & Co. answered, pleading the general issue. ■

The District Court rendered judgment in favor of L’Hote & Co.

The seizing creditors and third opponent appealed.

Appellant in his brief presents the following as the statement of his case:

“In June, 1895, the defendant mortgaged in favor of the estates of D. C. and H. C. McCan various lots of ground in New Orleans, with all the buildings, improvements, rights, privileges, advantages and servitudes thereon. Mrs. Stemple as tutrix of the minor heirs of McCan, owners of the mortgage notes, caused executory process to issue.

“After the writs of seizure and sale were in the sheriff’s hands, the parties agreed that ‘the property herein seized under executory process should be sold for cash, the defendant hereby waiving the prematurity of the principal mortgage note held by plaintiffs, and it is further agreed that the civil sheriff be authorized to cause plans of the property to be made so that each house embraced in the mortgage property may be sold separatelyThe properties sold under these-foreclosure proceedings were duly advertised by the sheriff:

“No. 1817 Napoleon avenue, was described as being ‘a handsome .two-story and attic frame residence, containing ten rooms, bath, pantry, etc., also four rooms in attic. All modern conveniences.’

“No. 1910 Berlin street was described in the advertisement as follows : ‘The buildings thereon, bearing the new municipal number 1910 Berlin street, being modern two-story frame residence, containing nine rooms, galleries, bath, and all modem conveniences.’

“No. 1888 Berlin street as being ‘modem handsome two-story and attic frame residence containing ten rooms, bath, pantries, and three rooms in attic; all conveniences.’

“No. 192Ó Berlin street as ‘containing reception hall, four bedrooms, closet, outhouse contains bedroom and wood shed and bath room; electric bells, speaking tubes, etc.’

“No. 1922 Berlin street, as ‘being modern two-story frame residence, nine rooms, halls, galleries, baths, pantries, etc.; walls handsomely papered, hardwood mantels, electric bells; etc.; banquette and yard paved with seriillinger; gas, waterworks, etc.’

“No. 1829 Napoleon avenue, as ‘being modern two-story frame residence containing twelve rooms, galleries, bath, all modern conveniences.’

“These properties together with all the improvements were leased by Eulham to different parties before the time of the seizure in these cases.

“Defendant Eulham was present at the sale and made no objection to the adjudication of the several properties to the opponent.

“The things seized in No. 1829 Napoleon avenue were contained in the property occupied by Thomas J. Duggan as tenant. He had been there five or six years. They were put in by W. C. Fulham. Those in No. 1929 Napoleon avenue, occupied by Mrs. Woeste, were put in there by the owner Fulham. Those in No. 1817 Napoleon avenue, occupied by Mrs. Rice, who had been living there as tenant for seven J ears, were in the house since she had lived there. Those in No. 1817 Berlin street, occupied by S. H. Kennedy, were all there when the tenant took possession, except the brass lights in the fourth bedroom, which had been there for three years.

“The third opponent as purchaser took possession of the properties as well as the things contained within, and remained in continuous possession until the articles were seized on October 17, 1896, following the sale.”

Opponent in his brief laid considerable stress upon the terms of the advertisement’ of the property, upon defendant’s consent that “the houses should be sold separately,” the presence of the owner at the sale, his making no opposition thereto, nor to the purchasers taking possession, and upon Art. 480 of the Civil Code which provides that “the sale or gift of a house with 'all that is in it does not include the money nor the credits nor other rights which may be in the house; all other movable effects are included.”

lie referred the court to Articles 468, 2489, 2490 of the Civil Code; to Merlin lieper Loire de Jurisprudence verbo “Accessoire” p. 109.; to Fink vs. Brigaldi, 4 Daly (N. Y.) 359; to Sewall vs. Angerstein, 18 Law Times N. S., 300; to Johnson’s Executor vs. Wisemans Exec., 4 Metcalf (Ky.) 357; to Marcade, Vol. II., p. 333, et seq., and to Mackie vs. Smith, 5 Ann. 717.

Appellee referred the court to Articles 468, 469 of the Civil Code; 5 Vol. Laurent, §434, pp. 539-540, 543; also 5 Vol., p. 547, par. 441, Cassation, 17 January, 1859; 5 Laurent, 578; Sacre vs. Klein, Sirey, 80, I. 409, Sirey, 59, I. 519, Id. 78, I. 353, Id. 80, 2, 332; Kerech vs. Philharmonic Society, 79 Penn. State 403. Vaugh vs. Halderman, 33 Penn. State 522. Rogers vs. Crow, 10th Missouri, 91. Towne vs. Fiske, 127 Mass. 125. Guthrie vs. Jones, 108 Mass. 191. Keage vs. Hanover Ins. Co. 81 N. Y. 38. Same vs. Same, 37 Anl. Rep. 471. Montegut vs. Lent, 10 Rich. S Car. Rep. 135. Fink vs. Brigaldi, 4 Daly (N. Y.) 359; Harper vs. Commercial, etc., 15 La. Anl. Reports, 136, and Lapeyre vs. McCann, 28th La. Anl. 749.

Opinion.

The third opponent’s claim to the ownership of the articles seized in ■this ease by the plaintiffs is, by virtue of having become the owner of certain real estate, sold at sheriff’s sale, under executory process, at the ■suit of holders of notes bearing mortgage upon the same. The properties sold belonged, some of them to W. O. Fulham, others to his son, ~W. F. Fulham. Some of the articles seized by L’Hote and Oo. were at the time of the sheriff’s sale, in the houses belonging to the son, 'but all of them belonged to the father.

The properties were at the time of the sheriff’s sale, under lease to ■different persons.

They are not before the court and the case is submitted to us freed from examination as to what their rights as lessees are or would be in the premises. The only parties before us are the third opponent and the seizing creditors, and the only issue raised and to be decided is one of ownership.

The rights of the third opponent are to be tested, by what he acquired at the sheriff’s sale, made in enforcement of the two sets of mortgages.

We find nothing in the record which would estop either W. 0. Fulham or his creditors from claiming the actual ownership to be in the former, if such was the actual fact.

The circumstance that the different'properties were by consent sold separately from the others covered by the same mortgage, does not broaden the mortgage and make it include more on each separate property, than would have been included in it had the property mortgaged been sold in entirety as mortgaged, nor does the presence of W. C. Fulham at the sale cause any difference in the rights and obligations of parties from what they would have been had he been absent. If the purchaser at the sale obtained everything that the mortgage legally called for, he can have no grounds of complaint. The ease is not one showing a sale of house “with all that is in it,” and therefore Art. 480 of the Civil Code has no bearing upon the rights of parties.

Third opponent relies upon the provisions of Articles 468 and 4G9 of the Civil Code.

The first, Article 468, declares that “things which the owner of a tract .of land has placed upon it for its services and improvement are immovable by destination. Thus, the following things are immovable by destination, when they have been placed by the owner for the service and improvement of a tract of land, to-wit: * * *

“All such movables as the owner has attached permanently to the tenement or the building are likewise immovable by destination.”

The second, Art. 469, declares that “the owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster or mortar, or such as can not be taken off without being broken or injured, or without breaking or injuring the part of the. building to which they are attached.” The cabinet mantel pieces seized are movable beyond question, not being attached to the building.

The chandeliers and brackets placed in the houses of W. F. Fulham are also moveables, not having been placed therein by the owner of the property itself. The only articles seized as to the ownership of which there can be any serious question are the chandeliers and the brass brackets in the houses which belonged to W. C. Fulham.

Opponent’s counsel refers us to the ease of Mackie vs. Smith, 5 Ann., 717, as holding that the eases specified in Article 480 of the present Code can not be construed, as limiting the general disposition of the law, but that the article “embraces all cases in which the movables have been placed by the owner ad inlegrandum domum.

The questions propounded by him to the different witnesses were directed to showing that there were gas pipes connected with the different buildings; that the chandeliers and brackets were attached to these pipes and gas could not be used in the buildings without them; that the chandeliers and brackets were placed in the buildings for their use and improvement and most of them were in the leased premises, before they were leased and placed there for the use of the tenants. The evidence showed that the chandeliers were screwed on to the gas pipes as usual and customary, but they wore capable of being-detached by unscrewing and taken away without breaking or taking-away the pipes or defacing the walls.

Two of the witnesses stated that the chandeliers were necessary for the use of the buildings in order to use gas, while another stated that drop lights might be substituted for them, that these particular chandeliers might be replaced by others.

Counsel for the seizing creditors insists that in order to immobilize-movables in a dwelling house by means of destination, it is necessary that there should be a permanent attachment of the same to the buildings; that the Code in Art. 460 had declared what was considered a permanent attachment. That it said in substance that things permanently attached are:

1st. Those which are affixed to the building with plaster or mortar..

2nd. Such as can not be taken off without being broken or injured.

3rd. Such as could not be taken off without breaking or injuring-the part of the building to which they are attached.

He contends that even if this law be not restricted (as contended by Laurent, and other commentators) to the exact kind of attachment, specifically declared by it, it could not be construed so as to cover any sort of attachment less durable or permanent than those it did specify.

The syllabus in the case of Mackie vs. Smith, referred to by opponent, is to the effect that “where mirrors have been set in the wall by making recesses therein, which recesses would bo left in their rough state if the mirrors were removed, they would be considered attached permanently to the building and are included in a sale of the building.”

The property in that case had been sold at a judicial sale for the purpose of making a partition among the heirs in the succession of Benjamin Story.

The report of the ease shows that after Mr. Story had purchased the mirrors, recesses four and a half inches deep were cut in the walls of the room to receive them; that they were placed in these recesses and secured in their places by means of architraves or large wooden frames, which were nailed to plugs of hard wood fastened to the wall.

The frames of the mirrors had grooves in them corresponding to a tongue in the architrave and nails were driven from one to the other to make the glass more secure. The recesses were left rough and unfinished; the glasses and architraves clearly intended as a permanent furnishing of the wall.

'The court in its opinion said it had only to enquire whether under , the Article 459 of the Code (new Art. 468) the mirrors had been attached permanently to the building by the deceased; that if they were, .the purchaser had acquired them.

That it was shown that they could be removed without being broken • or injured.

That it was contended that they might have been removed without .breaking or injuring the part of the building to- which they were attached and that as the case came under none of the provisions of Art. 460 of the Code (new Art. 469), the judgment of the District Court, adverse to the claimed rights of the purchaser should be affirmed.

The court said on this latter question of fact the testimony was .conflicting and that if the cases specified in Art. 460 could be con■strued as limiting the general disposition of the preceding .Article, it would have paid great deference to the opinion of the district judge, :but it did not think that interpretation could be sustained.

That Art. 459 provided that all such movables as the owner had at-tached permanently to the building are immovables by destination; •that it embraced all cases in which the movables had been placed by ,-the owner ad iniegrandum, domum, and when none of the presumptions established by Art. 460 exist, the fact might be shown by any competent evidence, citing Toullier, p. 8, No. 16; 4 Duranton, p. 63 No. 68.

The court said it was difficult to find a case more strictly falling within the letter and spirit of Art. 459 of the Code. That the Code of France provided that if a niche is made in a wall to receive a statue placed there, though in no manner attached to the building, it became immovable by destination; and such it thought was the Roman law.

That the case presented was a stronger one for the application of the rule.

Holding that the mirrors passed to the purchaser of the building the Supreme Court reversed the judgment below.

The facts of the cited ease were much stronger for the purchaser than are those of the present one.

The mirrors as placed in the rough recesses made in the wall were practically embodied in and formed part of the building itself, and the court not only reached that conclusion but also the conclusion that such had been the intention of Nr. Story, that he had not contemplated a removal of the mirrors from their assigned place, but fixed them there as a permanency. We do not think there is a fair parallelism between that case and the one at bar, either as to the intentions of the owner in placing the movables in the building, in the mode which they were attached thereto, or their situation after they were so attached.

Chandeliers and brackets, so far from being attached to gas pipes and to the walls of buildings, with reference to their remaining there permanently, are prepared with direct reference to facility of detachment, and removal. It is true that when there are gas pipes connected with a building and the occupants of the house desire to make use of the same, that some means have to be resorted to to make use thereof, but chandeliers are not the only means of doing so, and when they are used they are so arranged, as to be susceptible of easy change or alteration.

Neither the chandeliers themselves, the pipes with which they are connected, nor the walls through which the pipes are passed, are in the slightest degree injured by their removal. The only object for their attachment to the pipes to which they are joined, is to enable them to be utilized for the time being, just as fastenings of various kinds have to be resorted to, to hold different movable objects temporarily in position for present use.

We think that jurisprudence generally recognifes that chandeliers, placed, in a dwelling house by the owner thereof, are movables, though in order to he made use of they have to be connected with pipes which are themselves considered immovable by destination.

That is our own interpretation of the law.

Eor the reasons assigned the judgment appealed from is hereby affirmed.