text:
    No. 13,173
    Orleans
    LAWRENCE v. WRIGHT ET AL.
    (November 18, 1929. Opinion and Decree.)
    S. S. Goldman, of New Orleans, attorney for plaintiff, appellee.
    James G. Schillin, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a contest over the proceeds of the sale of a piece of real estate. The property was sold under a writ of fieri facias by the sheriff at public sale to satisfy a judgment which plaintiff obtained against the owner of the property. The present issue arose out of a rule taken by plaintiff to clear the property of encumbrances and to refer them to the proceeds of the sale. Plaintiff in rule claims under a materialmen’s lien and defendant in rule claims under a conventional mortgage.

Each party contends that his claim should be recognized by preference and priority over the other.

The record shows that the plaintiff furnished material to the contractor and that it was used in the erection of a building on the property of the owner. The building contract was not recorded. Plaintiff’s claim for lien as a materialman was duly and properly recorded in the mortgage office, but a detailed sworn statement of his claim was not served upon the owner. The mortgage of the defendant was properly recorded before the lien of the plaintiff, but while the building, for which the material was furnished, was under construction.

The sole issue presented by this case is whether or not it is necessary under the provisions of Act 298 of 1926 for a materialman to serve a sworn itemized statement of.his claim upon the owner, in addition to the recordation of his claim in the mortgage office, in order to have a valid lien upon the property of the owner. The determination of this question depends upon the interpretation to be placed upon section 12 of Act 298 of 1926.

Counsel for the appellant contends that section 12 of Act 298 of 1926 should be construed together with the provisions of section 2 of the said act, which requires in addition to recordation, also notice to the owner of the claim and, therefore, the plaintiff having failed to give the owner notice of his claim, in accordance with section 2, that plaintiff has not a legal existing lien upon the property in question. That before plaintiff’s lien could have any legal effect it is indispensable that plaintiff comply with the provisions of the law that creates his lien and gives it legal existence.

Counsel for appellee contends that section 12 of Act 298 of 1926 should be construed independently of the other sections of the statute, because it deals specifically with the class of cases where a written contract is entered into between the owner and the contractor but is not recorded. That section 12 is self-operative and entirely independent of the other provisions of the statute. and as said section provides only for the recordation of the affidavit in the mortgage office, within sixty days after the date of last delivery, in order to create a valid lien in favor of the mate, rialman, that it was unnecessary for plaintiff to serve a detailed sworn statement of his claim upon the owner.

Act 298 of 1926 provides the method and manner of creating and preserving liens and privileges of materialmen, laborers, etc., and is exclusive of all other laws of the subject matter. Section 16 of the said act specifically repeals Act 230 of 1924, Act 139 of 1922, Act 262 of 1&16 and Act 229 of 1916, and all acts amendatory thereof, and all laws or parts of laws on the said subject matter including the provisions and articles of the Revised Civil Code of Louisiana, which may be inconsistent with the said act. It is, therefore, only necessary to look to the provisions of Act 298 of 1926 in determining this controversy.

A careful reading of the act- shows that the Legislature intended to classify cases arising under its provisions as follows:

First: Where the building contract and bond securing its faithful performance are both recorded in the mortgage office.
Second: Where the building contract has been recorded but an insufficient bond has been furnished or no bond has been recorded, and
Third: Where there is no contract or where the contract is unrecorded or where the owner or his authorized agent undertakes the work.

Section 2 of the act deals specifically with the case where the contract and bond are properly recorded. Section 6 deals exclusively with the case where the contract has been recorded but the bond is insufficient or the bond has not been recorded. Under the specific provisions of both of ■ these sections in order to create a valid lien the materialman or laborer must record his sworn detailed statement, and serve such a statement upon the owner either by registered mail or by personal service.

The instant case does not fall under the provisions of sections 2 and 6 because the contract in this case was not recorded and, therefore, falls under the provisions of section 12 of said act.

Section 12 of Act 298 of 1926 reads as follows:

“Section 12. When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the said owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required by this act, then any person furnishing service or material or performing any labor on said building or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the Parish in which said work is being done or has been done a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the' same by said furnisher of material or said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement, as his interest may appear. Said lien and privilege, recorded as aforesaid shall constitute a lien and privilege, against the said property for a period of one year from the date of its filing, unless interrupted by judicial proceeding, during which judicial proceeding said prescription shall not run. Any person furnishing service or material or performing any labor on said building or other work to or for a contractor or subcontractor, when a contract, oral or written has been entered into but no contract has been timely recorded, shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim, as provided in this Section, which right of action shall not prescribe during the pendency of judicial proceedings; provided, that this shall not interfere with the personal liability of the owner for material sold to or services or labor performed for him or his authorized agent. Said lien and privilege shall be superior to all other claims against the said land and improvements except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale or arising from a sale and resale to and from a regularly organized homestead or building and loan association, if said vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished; provided, however, that the wages of a laborer for work done by him on any building, shall, when presented and recorded by him in accordance with the provisions of the Act, create in his favor a lien and privilege on the land and improvements which will prime the rights of mortgagees or vendors.”

It is to be noted that under the provisions of this section it is only necessary to record the detailed sworn statement of the materialman in order to create a valid lien. Notice to the owner is entirely dispensed with under this section of the act. It is clear that if this section is to Be construed independently of the other provisions of the statute, particularly sections 2 and 6, that recordation is the sole requirement to the creation of a valid lien.

We shall now pass to a consideration of whether or not section 12 should be construed independently, and exclusive of the other provisions of the act with reference to the class of cases falling within its provisions. It is significant that in three places in section 12 the Legislature refers to the recordation of the claim in the mortgage office in order to create a valid lien which “recordation if done within sixty days after the date of last delivery of all material * * * shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated * * Again we find this language: “Said lien and privilege, recorded as aforesaid, shall constitute a lien and privilege against the said property * *

It is also to be noted that in section 12 the Legislature provides for the ranking of the lien and privilege with reference to taxes, assessments, vendor’s liens and mortgages. In section 1 of the act the Legislature, in almost identical language, likewise provided. for the ranking of the liens and. privileges created by the act. If it were not the intention of the Legislature that section 12 should be construed independently and exclusive of the other provisions of the act, it would not have been • necessary to have a repetition of the provision governing the ranking of the lien and privilege in section 12, as this was already provided in section 1 of the act.

In the case of Hortman-Salmen Company, Inc., vs. Smith et al., 4 La. App. 674, which was a case where the building was erected without any contract or bond, this court held that section 2 of Act 1922 had no application to a case where no contract had been entered into but that such cases were governed by section 11 of the said act.

In the case of Hortman-Salmen Co., Inc., vs. White, 168 La. 18, (123 So. Rep. 709, Adv. Sheet of September 4, 1929), the Supreme Court said:

“As the building was erected in 1927, the question presented as to which is entitled to payment by preference,- the mortgage or the lien, is governed by Act 298 of 1926. As the contract for the construction of the building was not recorded, the question presented is governed peculiarly by Section 12 of that Act.” (Page 710 of 123 So.)

Counsel for the defendant cited the following cases in support of his contention: Burke vs. Kennedy, 5 La. App. 338; Merriweather Supply Company vs. Baugh, 6 La. App. 730; Casey vs. Allain et al., 9 La. App. 5, 120 So. 420. We do not find these authorities in point.

In cases where there was a contract entered. into but not recorded the provisions of section 5 of Act 139 of 1922 governed. As section 5 of the said act specifically provides that recordation and notice to the owner shall be effected as provided in section 2 of the act, and as the said section 2 provides for the recordation of a sworn statement and service thereof on the owner, it was necessary in order to create a valid lien, to both record the claim and serve notice of the claim upon the owner. Section 11 of Act 139 of 1922 only applies to cases where there are no contracts at all or where the owner or his authorized agent undertakes the work. In cases falling under section 11 of the said act it was unnecessary to serve a sworn statement upon the owner.

A careful reading of the decisions cited by counsel for the defendant show that they are cases where contracts were entered into but not recorded. Such cases fall within the provisions of section 5 of Act 139 of 1922 and not within section 11 of said act. As the cited cases fall within the provisions of section 5 of the said act it was necessary to serve a copy of the sworn statement upon the owner because the provisions of the said section specifically provide for such service. We do not find that any of the cases cited by counsel fall within the provisions of section 11 of Act 139 of 1922. They are, therefore, not applicable to this case.

Counsel for defendant has also cited the following authorities: Gleissner vs. Hughes, 153 La. 133, 95 So. 529; Rose vs. Eunice Electric Theatre Co., 154 La. 81, 97 So. 322; Frank vs. Waters, 162 La. 255, 110 So. 413. While these cases deal with the subject matter of materialmen’s liens they are not in point because the Supreme Court has never passed upon an issue such as is presented in the instant case.

It is true that the jurisprudence of this state is uniform to the effect that materialmen’s liens are strieti juris, in derogation of a common right, and must he strictly construed against the lienor. It is also true that the provisions of section 12 of Act 298 of 1926 are drastic against the owner in that it makes the buildings and improvements, and the land upon which the buildings and improvements are situated, and the owner personally responsible for the lienor’s claim for a period of one year. We can see no good reason why the owner in the case where no contract is entered into or where a contract is entered into and not recorded should not likewise receive notice of the lienor’s claim as provided in the statute in the other cases, because the theory of notice to the owner is to give him an opportunity to protect himself against a defaulting contractor. It appears that the service of the notice by registered mail or personal service is a simple matter very easily effected and inexpensive insofar as the lienor is concerned. But we are driven to the conclusion that the Legislature intended that in cases where there were no contracts or where there were contracts and they were not recorded or where the owner or his authorized agent undertakes the work, that the owner is not entitled to receive such notice from the lienor. Whatever may have been the reason for the classification, the fact remains that the Legislature has made it, and clearly carried it out throughout the act. It is interesting to note that the class of cases where there was a written contract but unrecorded was classified under section 5 of Act 139 of 1922, and hence notice to the owner was necessary. In writing the act of 1926 the Legislature placed this class of cases under section 12 of the act and notice to the owner is unnecessary.

We are, therefore, of the opinion that section 12 of Act 298 of 1926 is to be construed independently and exclusively of the other sections of the act with reference to cases where there is a written contract and it is unrecorded. As this section does not require service of a sworn detailed statement upon the owner but only requires the recordation of the detailed sworn statement, in order to create a lien, the lien of the plaintiff is valid and under the provisions of section 12 of Act 298 of 1926, primes the mortgage of the defendant.

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 527
    First Circuit
    ROOT GLASS CO. v. GAGLIANO ET AL.
    (December 3, 1929. Opinion and Decree.)
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    John Fred Odom, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

In June, 1926, plaintiff company sold a lot of pop or soft drink bottles to defendants, designated as 9-ounce Ski-Hi crown bottles, and 8-ounce standard Orange Crush bottles, which carried a guarantee of 2 per cent against breakage on the first filling. The amount of the purchase was $1831.66 upon which a payment of $570.97'was made.

Three, notes were executed representing the balance due thereon. Subsequently there were renewal notes executed. Finally, in February, 1928, a note of $871.91 was made by the Orange Crush Bottlin'g Company, a partnership composed of respondents. This is the note sued upon.

In the defense there is no complaint as to the Standard Orange Crush Crown bottles, the contest being restricted to the Ski-Hi bottles which defendants aver were at least 75 gross defective and of no use to them. The record shows that the invoice price for these Ski-Hi bottles was $5.59 per gross, entitling respondents, according to their contention, to a credit on the note of $419.25 for the defective bottles.

The district judge found that there was a breakage of 45 per cent on these bottles, and recognized a credit in favor of defendants on that basis.

The sole question presented is as to whether there was a breakage of 45 per cent of these bottles, as was held by the district judge.

It is fully shown that a great number of these bottles broke at the bottom on the first filling. No doubt, they were defective when received. There is no contradictory testimony by defendants of that fact. The real defense being that plaintiff could not determine with any degree of certainty the exact breakage that had occurred.

Three witnesses for defendants testified that most of these, bottles broke on the first filling, but they did not give the exact proportion or percentage. That a large number broke at that time there can be no question.

Peter Gagliano, a co-defendant, says on August 27, 1926, which the record shows was about two months after the purchase, that he wrote plaintiff that they had lost between 50 and 75 per cent of the bottles which had bursted at the bottom after the first filling. To this letter he says he received no answer. Plaintiff denies that it received such a letter.

Smith, salesman of the bottles for plaintiff company, says the first notice he had of the complaint of defendants was by letter of - date September 13, 1926. It is shown that he came to Baton Rouge, October 16, 1926, and that defendants then claimed that the loss by breakage of these bottles, according to his testimony, was around fifty gross.

It is shown that the defendants, at the time of Smith’s visit, had a pile of these broken bottles which they had dumped in their back yard. Defendants admit that they kept no actual record of the bottles that had broken, the remnants of which were in that pile. Two or three witnesses for defendants testify that this accumulation of bottles was shown to Smith and that defendants then claimed a loss on the bottles of 50 to 75 gross. They say, and are positive in their statement, that Smith then promised to give defendants credit on the debt from 50 to 75 per cent gross. That Smith told defendants to haul these broken bottles away and that they followed his instructions, and for that reason, kept no record of the number broken. These statements are all denied by Smith who swears he entered into no such promise.

The evidence on this, the vital issue in the case, is clearly against plaintiff. The lower court, no doubt, believed defendants, and we find no evidence in the record that could lead us to a different conclusion.

We feel certain from the evidence adduced that plaintiff, through its agent or agents, promised that the amount claimed would be credited for these defective bottles, which justifies the judgment below for the credit allowed which was fair and conservative.


author: ELLIOTT, J.

text:
    No. 523
    First Circuit
    SUCCESSION OF DOWNEY
    (December 3, 1929. Opinion and Decree.)

      Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Leslie A. Fitch, of Baton Rouge, attorney for respondent, tax collector, appellant.
   ELLIOTT, J.

A motion to dismiss this appeal was filed on' the ground that the note of testimony- belonging in the suit had not been brought up in the record. The recor-d now contains the testimony. The motion to dismiss is overruled. The question presented in this case is whether on the trial of a rule instituted by the heirs of a decedent against a tax collector for the purpose of having the court decide on the estate’s liability for an inheritance tax, under the provisions of Act No. 109 of 1906, Sec. 4, and Act 127 of 1921 (Ex. Ses.) Secs. 4 and 7 (amd. Act 44 of 1922, Sec.l) parol evidence is admissible for the purpose of showing the debts of the estate — • the .purpose being to show that if the liabilities of the estate be deducted there is no inheritance tax due. The inheritance tax is due only on the net estate after the liabilities have been deducted.

Succession of Levy, 115 La. 378, 39 So. 37, 8 L.R.A. (N. S.) 1180, 5 Ann. Cas. 871;

Succession of May, 120 La. 692, 45 So. 551;

Phillips vs. Phillips, 160 La. 814, 107 So. 584.

It is only by parol evidence in this case that the liabilities can be shown, and the evidence was, in our opinion, properly received.

The defendant contends that the effect of the testimony is to change the title of real estate, but we find that the purpose and effect of the testimony is to show the net estate.

The district judge received and considered the evidence, and held that the estate owed no inheritance tax. The ruling was correct.

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


text:
    No. 531
    First Circuit
    FERRY v. HOLMES & BARNES, LTD., ET AL.
    (December 3, 1929. Opinion and Decree.)

      Breazeale and Sachse, of Baton Rouge, attorneys for plaintiff, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendants, appellees.
    Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for intervener, appellant.
   MOUTON, J.

Plaintiff, at the time a salesman for Waterman Company, was injured while the occupant of a car that Worthy B. Gallent was driving in the interest of Holmes & Barnes, his co-defendant. This suit is brought against these two defendants by plaintiff in damages for the injuries he alleges he suffered as the result of the accident.

His claim was rejected. He appeals.

The car, a Chevrolet, was the property of Gallent, who had bought it from the Mclnnes Chevrolet Company of Baton Rouge, January 5, 1928.

Gallent testified that in February, while driving his car near Baton Rouge with his family at about 15 miles an hour, the brakes became jammed, and by driving in low gear he succeeded in loosening the brakes. A few days thereafter the locking of the brakes occurred again. He then drove the car to the Mclnnes Chevrolet Company, where Paxton, a mechanic, fixed it. The car was returned to him the same afternoon in good shape. The next morning while going to his office the brakes hung up again. It was repaired at the same establishment and returned to him as being in perfect mechanical condition. Next morning on his way to Hammond, the brakes caught up again, but he managed to unlock them by throwing the car in lower gear. Two or three days thereafter while traveling around Baton Rouge the same trouble occurred. This happened on March 3, 1928. The car was taken by him to the Mclnnes garage, where it was again repaired and returned to him with the assurance that the trouble had been eliminated. This was on a Saturday; the next day, Sunday, he drove the car approximately 100 miles without experiencing the least trouble. The day after, on Monday, he took Ferry, the plaintiff, along with him in the car, drove it at the usual rate of speed, and without any trouble whatsoever. On Tuesday, he left in company with plaintiff, drove to Corben and Walker, and came back to Denham Spring. On this trip Gallent was selling wares for Holmes & Barnes, and plaintiff, the other salesman, was doing missionary work by introducing goods for the company he was representing. It does not appear that Gal-lent is a mechanic or has any knowledge concerning the mechanism of automobiles. No doubt, he had entire confidence in the skill of the workmen who had repaired his car, and felt certain, before leaving with plaintiff on their trip from Baton Rouge, that the cause of the trouble with his brakes had been entirely eliminated. On their way home to Baton Rouge, when they reached a place known as Lively Bottoms, the accident occurred from which resulted the injuries of which plaintiff complains.

Gallent says it had just begun to sprinkle when he got to Lively Bottoms. He said plaintiff asked him about that time if the roads “got very slick” when it rained. He answered no, says he wondered if plaintiff thought he was going too fast to suit him, and looked at his speedometer which registered under 40 — he would say-38 or 39 miles an hour. Gallent is certain he was not going faster than that. Gallent says it had just begun to sprinkle, and that the road was not “slick.” Plaintiff testifies to the contrary in this respect. In reference to the speed at which defendant was traveling at that time, plaintiff in his petition estimates it at about 40 miles an hour, while in his testimony he. fixes the speed, first, between 45 and 50 miles, and then says about 50 miles of which he says he is absolutely positive as he had looked/ at the speedometer. It would seem from these fluctuating estimates that plaintiff was inclined to a little exaggeration. However that may be, we-do not think, taking the facts of the case in connection with the contradictory testimony of these witnesses on this subject, that the turning over of the car was caused by excessive speed or to the slippery condition of the roadway.

Gallent says he saw an auto about 250 yards ahead of him and a man flagging; that there was also another car parked on the side of the road with a stop light in the rear. He says he had all the space needed to stop his car, but that when he saw this stop light he placed his foot on the brakes “just to check the momentum of his car,” not because he thought he would run into the auto. He says he then released his foot from the brakes, the rear end of his car whipped around, and the front “held.” From his past experience with the car, he says, he then realized what the trouble was, he tried to hold his car sideways to keep the rear from going into the ditch, and then slammed the brakes in trying to break them loose, but all in vain. By that time the rear wheels had gotten in the ditch on the side of the roadway and the car turned over. He says the brakes being locked caused the running board to get on the gravel and the back wheels of the car into the ditch. He is positive that the brakes were locked and that this was the cause of the accident. He says when the car turned over he had slowed down to about 32 or 33 miles an hour.

The two mechanics who testified in the case say that brakes could lock on a car going at 16 or 18 miles an hour, but not at 25 or- 32. Paxton, one of the mechanics, would not say the locking of the brakes would be impossible at that rate of speed. The fact is that he said if a car was going 35 or 40 miles an hour, the putting on of the brakes would not cause it to turn over, but if one of “the brakes happened to lock on you going at that rate of speed it would throw you around,” although he says in reference to that statement that he never heard of one locking at that speed, and had never heard of it.

The mechanics admit that the brakes on that car had been repaired/ a couple of Vmes. No doubt, they make so many repairs on automobiles, that they cannot remember all the instances in which they may be called to do -work of that character. Gallent testified, however, of the frequent repair of these brakes that had so frequently locked while he was driving his car. Paxton, the mechanic, said at the speed Gallent was traveling if the brakes locked the car would turn around.

From the recital of the occurrence given by Gallent, the driver of the car, that is what happened and caused the car to turn over. It was a case of emergency in which Gallent did all that he could under the circumstances to keep his car from turning over- but without avail.

In Jacobs vs. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253, the court said the driver’s duty and responsibility to his guest in an automobile is merely to be careful and avoid committing any act of negligence or imprudence that might add to or increase the ordinary danger. It is demanded of him that he avoid the ordinary negligence or imprudence referred to in the Civil Code.

Gallent exercised the care required in such cases, was not guilty of imprudence or negligence. The turning over of the car,' causing the injury to plaintiff, was the result of a pure accident, and his demand was therefore properly rejected.


text:
    No. 521
    First Circuit
    BROWNING v. MAESTRI
    (December 3, 1929. Opinion and Decree.)
    R. F. Walker and J. D. Womack, of Baton Rouge, attorneys for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

North Boulevard is a street in the city of Baton Rouge running east and west, which is intersected by Twelfth Street, running north and south, and which ends with its intersection of North Boulevard.

On March 31, 1926, a collision occurred at the intersection of these two streets between a Buick sedan, which was being driven by Richard Maestri and a Ford car,driven by Floyd Browning, minor son of Frank Browning. Merrit Browning, an occupant of the Ford car, the son of Frank Browning, aged three years, was severely injured in the collision. His father, Frank Browning, brings this suit against Richard Maestri,, claiming $11,000 in damages with legal interest from judicial demand, which was rejected below. Plaintiff appeals.

Mrs. G. B. Rentin says she saw the collision between the two autos. She was, according to her testimony, sitting at the time in her car which was parked on the south side of North Boulevard, practically south of the corner of Twelfth Street, where it connects with North Boulevard. She says she saw Maestri coming southward on Twelfth. Street towards North Boulevard, and that he was traveling on the east side of Twelfth Street. She does not say that he was going at an excessive rate of speed, but that he was moving at a lively speed. Her testimony is, that on reaching the eastern corner of Twelfth Street where it connects with North Boulevard, that he abruptly turned to the east into North Boulevard, and a few feet along the north side of that street, ran into the Ford car which Floyd Browning was driving. According to her testimony, Floyd Browning was attempting to park his car, which was hardly moving at the time. If Maestri blew his horn she did not hear it.

Michael, Angrum and Williams, witnesses for plaintiff, say they saw the collision. They were all three, according to their testimony, not far from the corner of Twelfth Street, and in close proximity to where the accident happened. They say, in substance, that Maestri came down Twelfth Street and at its eastern corner did not stop there but suddenly turned around or swung his auto, as one puts it, and ran into the Ford Floyd Browning was driving along his right side, or the north side of North Boulevard. They all say that Browning was on the point of parking his car on the north side of North Boulevard, at the time and which was moving slowly, if at all, as one or two testify.

These witnesses say also that if Maestri blew his horn they did not hear it. It is shown by a city ordinance of Baton Rouge introduced in the case, that Floyd Browning had the right of way on North . Boulevard. It also appears, according to the testimony of these witnesses, that he was driving on the north side of North Boulevard or to his right side when the collision occurred.

If the district judge had believed these witnesses, undoubtedly he would have rendered judgment against Maestri, defendant. Maestri, however, gave a version of the occurrence quite different, and at variance with the testimony of the witnesses above referred to.

Maestri says he came down Twelfth Street driving about the middle of that street; that when he reached Boulevard he stopped his auto, blew his horn, “put his car” in first gear, and that when he got about the center of North Boulevard, Browning ran into his auto, hitting the left front door of his car,. the running board and denting his left front and rear fenders. i

T. C. Bourgeois, as far as the record discloses, a disinterested witness, did not see the collision, but on his way home stopped his car where it had occurred. He says Maestri’s car was standing diagonally across the car rails which' were yet on North Boulevard at that time; that the car track was in the middle of North Boulevard and that the front wheels of Maestri’s car were across the south rail, and the rear wheels were across the north rail. The Maestri car was, therefore, according to Bourgeois, in the center of North Boulevard, after the wreck. Bourgeois says he examined the Maestri car, and corroborates Maestri’s testimony in reference to the injury or damages to his car.

Two or three mechanics who had worked on Maestri’s car after the collision testified to the damaged condition of the car to its left door, running board, fenders (front and rear), and all in line with the injuries as described by Maestri and Bourgeois.

It was shown that the left door of the Maestri car, a Buick, was of metal. Marcliand, one of the mechanics, says that there was an imprint of a headlight on the door, in a circular form. This statement is confirmed by the testimony of A. B. Avery, another mechanic, who is engaged in the business of auto sheet metal work. P. J. LeBlanc, an automobile mechanic, also testified to the circular imprint of a headlight on the left door of the Maestri car. He said the door had been dented by the effect of the imprint, and had to be hammered out and filed to get the rough dents out. According to his testimony the blow to the Maestri car must have been severe. He was then asked on cross-examination if he thought that such a blow could have been given by the headlight of a Ford auto without breaking the glass in the headlight. His answer was that a very straight lick would not have broken the glass; “it is possible he says, it would not have.” This question was propounded, we presume, on cross-examination because plaintiff’s witnesses testified that the headlight of the Ford had not been broken by the collision. Even if it was not broken the testimony of LeBlanc shows that such could have been the case, though the imprint of the headlight had remained distinctly marked on the door of the Buick.

Obviously, the district judge accepted as correct the account of the occurrence as it was given by Maestri, corroborated as it is by the testimony of Bourgeois, and by the physical facts of the case which indicate that the Buick was run into by the Ford driven, at the time, by a boy of 13, who, very probably lost control of his car, as it also appeared that water was leaking from the radiator of his car immediately after the collision.

The judgment was grounded on pure questions of fact, and the credibility of the witnesses.

After a careful consideration of the evidence, we have been unable to find that there is any manifest error in the finding of the trial judge. Such being the situation, under the well settled rules of law, there is no legal ground to authorize or justify a reversal by this court.


author: LECHE, J.

text:
    No. 522
    First Circuit
    KINCHEN v. ROYAL EXCHANGE ASSURANCE ET AL.
    (December 3, 1929. Opinion and Decree.)

      R. F. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Hawthorn & Stafford, of Alexandria, attorneys for defendants, appellees.
   LECHE, J.

The present appeal was taken by plaintiff. Defendants, appellees, move to dismiss the appeal for various informalities and irregularities in the manner and form in which the appeal was taken. But appellees’ right to object to such in-formalities and irregularities was waived by it when it filed an answer to the appeal. Appellees’ answer to the appeal was filed in this court on October 7, 1929, and its motion to dismiss was filed the next day, October 8, 1929. One of the grounds urged to dismiss the appeal is the incompleteness of the transcript or record. Thereafter, but on the same day, October 8, 1929, appellant realizing that the transcript was incomplete filed a motion to remand the case in order to enable him to complete the record, and in that motion, he specifically declares that the incompleteness of the transcript, consisting of the absence of the testimony from the record, was not due to any fault or negligence on his part. By whose fault, if there is fault, the record is incomplete, is a conclusion which must be determined by the court and not by the appellant. But appellant in his motion does not state any facts from which such conclusion may be inferred.

According to Article 898 C. P. it is the duty of the appellant to see that the transcript is complete and that it is filed in due time in the appellate court. The cited article of the Code of Practice regulates appeals to the Supreme Court, but applies also to appeals in this court. Sec. 27, art. VII, of the Constitution of 1921.

It is obvious under these circumstances that the only ground of dismissal that this court is bound to consider is the Incompleteness of the transcript, a matter which it would have to consider even if no motion to dismiss had been urged.

It is therefore ordered that this case be remanded to the district court from which it was appealed in order that evidence might be taken within thirty days solely as to the cause of the incompleteness of the transcript or record, and that immediately thereafter said transcript of record be returned to this court to be disposed of in accordance with law.


text:
    No. 513
    First Circuit
    HOOPER v. MILLER
    (December 3, 1929. Opinion and Decree.)

      Benton & Benton, and D. J. Sanchez, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, and C. A. Battle, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

This suit is founded upon a note of $1,000 made by Albert Rodriguez, and identified with an act of sale and chattel mortgage, for the balance of the purchase price of a stock of goods, wares and merchandise together with fixtures, shelving, scales, safes, cash register, ice boxes and other paraphernalia, as shown by an inventory annexed to an act of sale from Lester J. Hooper to Albert Rodriguez, passed before Dewey J. Sanchez, notary public, December 4, 1926. The suit is not against Rodriguez the maker of the note but against Arthur P. Miller, receiver of the Baton Rouge Stores Co., Inc., which is prayed to be held liable for the-amount of said note, on substantially the following allegations of fact.

Plaintiff claims that the sale of the stock of goods and fixtures although made in the name of Albert Rodrigdez, was in reality made to the Baton Rouge Stores Co., Inc., both to the knowledge of himself and of the said Albert Rodriguez. That Albert Rodriguez had full authority to act for said corporation, and that the sale was made for the benefit of said corporation which received and accepted the property, held it and enjoyed the full benefit of it.

Defendant relies upon the provisions of Article 2276 of the Civil Code as its main-defense in the case. It contends that under the terms of the cited article of the Code, parol evidence may not be admitted against or beyond was is contained in the written act of sale, nor on what may have been said before, or at the time of ihaking it, or since. That article refers more particularly to acts or writings by which immovable property is affected, and in reality defendant’s objection, if supported at all, must rest upon article 2236, which says that “the authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, etc.” But considering that the courts refer indiscriminately to the one article or to the other, in ruling upon the admissibility of testimonial proof, when offered to contradict, change or alter written proof, it would serve no useful purpose in the present case, to discuss the different conditions under which these articles find their proper application.

Where all the parties to a written contract, or all their heirs or assigns, agree that the written act does not contain or express their intentions, there is nothing immoral or against public policy when they all agree to rescind, deny or alter such act, unless such rescission, denial or alteration affect the rights of third persons who have acted upon the verity of such written act. Griffith vs. Alcocke, 113 La. 514, 37 So. 47. If the rights of third persons should thereby become affected, the parties are estopped from recalling what they have solemnly done. Eor the same reason any party to the contract may hold the other party or parties to the truth of what is said in such written act, unless fraud, error or deception is charged and proven. Such then is the moral reason upon which the rule of exclusion of parol evidence to affect written evidence, is founded.

The right of the defendant, the Baton Rouge Stores Co., Inc., to interpose any objection to the admissibility of parol evidence to change or modify a written sale from plaintiff to Albert Rodriguez, must rest either upon the ground that plaintiff and Albert Rodriguez have misled the Baton Rouge Stores Co., Inc., or upon the ground that the corporation is in reality, although it does not so appear upon the face of the written act, a party to the contract. No grounds of estoppel are alleged or shown. So that if the right to. object to the testimony were based upon the fact that defendant is a party to the contract, it would thereby confess that Rodriguez acted for it and in its behalf, and such admission would render it liable as claimed by plaintiff.

On the face of the record, as it must he viewed for the purpose of ruling upon defendant’s objection to the admissibility of testimony to contradict or vary the sale from plaintiff to Albert Rodriguez, defendant must be considered as a stranger to the contract, unaffected by its terms and without interest as to its truth or falsity.

Defendant cites in its brief, a case from the Supreme Court of New Hampshire, which is not presently accessible to the writer of this opinion, hut in answer thereto we quote as supporting our ruling, the case of Benton vs. Roberts, 1 Rob. (La.) p. 105, wherein the court says:

“It has been strongly insisted on by counsel for the defendants, that no rparol testimony should have been admitted on the part of the plaintiff, to explain or contradict the release from Elliott to the defendants; and the article 2256 (now 2276) of the Code is relied on to sustain the objection. That article generally applies to those who appear to be parties or privies on the face, of the act. A party may also be bound by what is contained in an act between third persons, if it be established that he had notice of it; yet as parol evidence is necessary and admissible to prove the notice, it follows that by the same kind of evidence, all that took place at the time of notice may be proved as part of the res gestae.’’

On the trial of the case Albert Rodriguez admitted, as claimed by (plaintiff, that the sale of the stock of goods and store fixtures and accessories from plaintiff to himself was in reality made to the Baton Rouge Stores Co., Inc., to the knowledge of all parties. It appears further that at that time Rodriguez and the members of his immediate family owned all the stock of the Baton Rouge Stores Co., Inc., that Rodriguez controlled the corporation as fully as he controlled his family, that he was in the habit of using indifferently his own name as well as he used that of the corporation in transacting his business. He treated the business of the corporation as his own business. He was president and with the consent of his family, the other stockholders, he managed all the affairs of the corporation. It would be idle under these circumstances, to deny that the corporation as a separate entity, did not have notice or did not know all the actions and doings of .Rodriguez.

In the act of sale from plaintiff to Rodriguez the parties also stipulated that the property sold should be mortgaged and was actually mortgaged to secure the payment of the note sued on in this case.

Defendant contends that the description of the property is insufficient for the purpose of identification, as req'uired by the Act 198 of 1918, which (provides for the creation of and manner of granting chattel mortgages. We do not believe that this defense is well founded. The property is not only described in general terms, but its location, especially as between the parties to the act, makes its identification absolutely certain.

The value of the property sold by plaintiff to defendant, and received by the Receiver, and by him sold in order to liquidate the affairs of the corporation, is established in the only manner in which it could be ascertained, and as there is no contest as to the correctness of that amount, it will remain undisturbed.

The district court found that defendant was indebted to plaintiff in the sum of $1,000 with interest and costs, recognized that the affected property sold by the Receiver had realized $435.62 and decreed this amount as secured by vendors’ lien and privilege and by chattel mortgage. Our conclusions fully sustain the correctness of these findings, and it is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 517
    First Circuit
    McGEHEE v. HINES
    (December 3, 1929. Opinion and Decree.)
    Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.
    J. Oliver Bouanehaud, of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

The Louisiana highway commission, engaged in grading the highway known as the Bayou Sarah road, 10 or -15 miles north of Baton Rouge, was using for the purpose a motor truck and two graders, one of which was being pulled by the truck behind the other. The road machinery was moving along the road southward toward Baton Rouge; the rear or hindmost grader operated by the plaintiff, Thaddis A. McGehee.

The defendant, driving his automobile on the road in the same direction, overtook the grading outfit and collided with it.

The plaintiff alleges: That defendant, driving negligently, carelessly, recklessly, and at a dangerous and rapid rate of speed, drove his automobile head on into the back end of the rear grader, which he was operating, striking it with such force and violence that plaintiff was thereby forced to change his position on the machine. That defendant did not cut off his motor at the time of the first collision, with the result that his automobile struck again, this time hitting plaintiff on the hip. That plaintiff suffered, as a result of the blow, the dislocation of a bone in his back and a strain of the ligaments. That he is required to wear a belt and brace in order to keep his injured members in proper place. That his injury is permanent and has incapacitated him from doing heavy manual labor. That he has suffered severe physical pain and lost wages, all on account of his injury received as above said.

Defendant, in his answer, admits that a collision between his automobile and the grader operated by plaintiff took place, but denies the fault, negligence, and recklessness alleged against him. He denies that plaintiff was injured, and, if injured, the extent of same.

'The evidence of the plaintiff and his witnesses and that of the defendant and his witness is conflicting in regard to the main facts of the case. The defendant, as a witness, denied that plaintiff was struck and injured as the result of the collision, but subsequently, on cross-examination, admitted having done so:

“Q. You .are positive, when your car struck that grading machine, Mr. McGehee was sitting down?

“A. Mr. McGehee was resting on something on that machine when I hit him.”

The testimony of the plaintiff, supported by his fellow workers, and the conflicting denial and admission of the defendant, leads to the conclusion that plaintiff was struck by defendant substantially as alleged in his petition.

Defendant contends, as a witness, that the grader which the plaintiff was operating was on the left-hand side of the road, and that isame obstructed his passage on both sides of the road. We are satisfied that this was not the case. Both sides of the road are not ordinarily graded at the same time.

The plaintiff and his fellow workers testify, and the facts and circumstances indicate, that the road machinery occupied at the time the western half of the road in the direction it was moving. Defendant was driving on right-hand side of the road, which was the proser side for him in the direction he was going. He had seen the grading outfit in the road ahead of him for nearly a mile before he came up to it; therefore he should have turned to the left before reaching it and passed it on that side. The road was about 20 feet wide and the left-hand side was open; there was ample space for him to pass it on that side.

It was defendant’s duty, when he saw this heavy, slow-moving road machinery on the right-hand side of the road ahead of him in the direction he was going, the plaintiff standing upon the rear end of the rear grader, to get his machine under control in ample time, and get over on the left-hand side of the road before he got to it. He testifies that he applied his brakes, and that his automobile skidded under them into the road machine. The fact is he was driving too fast, and did not get his car under control as he approached 'the road machinery in front of him.

The evidence justifies the conclusion that, although the necessity for such action was apparent, defendant took no precaution, but carelessly and negligently, driving too fast and without having his automobile under control, ran into the rear end of the rear grader, striking it a heavy blow. The blow knocked plaintiff from his position on the machine, and in falling he received the injury in the sacro-iliac region, of which he complains.

Defendant contends, very seriously, that plaintiff was not injured as' a result of the collision in question. We find that he was injured very badly, and that it was the result of the collision with plaintiff’s automobile, and that same was caused by the fault and negligence of the defendant.

There was judgment in favor of the plaintiff on account of his injuries for $1,200. The defendant contends that this amount is excessive.

The plaintiff has answered the appeal, and prays that the amount be increased to $2,544.

The district judge had the plaintiff before him. Under the evidence, we do not feel that we can safely interfere with the amount allowed. Our conclusion is that the judgment appealed from should remain as rendered in the lower court.

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


author: WEBB, J.

text:
    No. 3528
    Second Circuit
    LE ROSEN v. NORTH CENTRAL TEXAS OIL CO., INC.
    (July 1, 1929. Opinion and Decree.)
    (January 6, 1930. Affirmed by Supreme Court on Writ of Certiorari and Review.)
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiff, appellee. ■
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport,' attorneys for defendant, appellant.
   WEBB, J.

Defendant, North Central Texas Oil Company, Inc., appeals from a judgment in favor of plaintiff, Arthur A. Le Rosen, holding that a certain mineral lease granted by Le Rosen to A. D. Mading, and by the latter assigned to defendant, had expired and to be without further force and effect.

The facts and issues are admittedly as stated in the opinion of the trial court, which reads, in part, as follows:

“On December 21, 1925, plaintiff, whose wife’s name is Louise Le Doux, executed an oil' and gas lease in favor of A. D. Mading. This lease was assigned to the defendant herein. The lease, which, under our law, is plainly nothing more than an option, to explore for oil and gas, or what is termed in some states an ‘unless lease’, contains the following provisions.

‘If no well be commenced on said land on or before the 21st day of December, 1926, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the American National Bank at Shreveport, Louisiana, the sum of forty ($40.00) dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve (12) months from said date.’

“No well was drilled on said land prior to the one-year option period, but on November 27, 1926, the defendant deposited in the American National Bank of Shreveport the sum of forty ($40.00) dollars to the joint credit of plaintiff "and his wife, Louise Le Doux, and about November 23, 1926, the defendant mailed the plaintiff a notice to the effect that such .deposit had been made to the credit of plaintiff and his wife and the bank likewise .gave him such notice.

“On February 23, 1927, the plaintiff instituted the present action to cancel the said lease for non-payment of the rental.

“The defendant admits the facts, but alleges that the said lease contract was executed by plaintiff for and on behalf of the community, and that the stipulation for the payment of rental was an obligation in favor of the community, and that the said deposit was correctly made. They further make the defence that if the said deposit was not correctly made then the plaintiff had ample opportunity to inform the defendant, and the plaintiff is therefore estopped from claiming cancellation for non-payment.”

Appellant does not urge that the ruling of the court that the contract was nothing more than a mere option or an “unless lease,” as to extension of which plaintiff was not in a position to do anything nor prevent the doing of anything which would affect the extension of the option, and is to he construed strictly against .the lessee (Eastern Oil Co. vs. Smith, 80 Okl. 207, 195 P. 773; Rives vs. Gulf Refining Co., 133 La. 178, 62 So. 623; Braswell vs. Columbia County Development Co., 153 La. 691, 96 So. 534; Harter et al. vs. Edwards, 108 Kan. 346, 195 P. 607), and that it was essential that .the rental should be paid to the lessor or deposited to his credit on or before the date named to prevent the expiration of the option, but it urges only that the court erred in holding ■that the deposit as made, to the joint credit of plaintiff and his wife, was not a compliance with the stipulation for the extension of the option, and in refusing to sustain the plea of estoppel.

It is admitted that the land, which defendant had obtained the right to explore for oil and gas, was community property, and, in support of the position that the deposit made to the joint credit of the husband and wi|fe had extended the option, 'it is urged that the community was the lessor and that the deposit was properly made, that the husband was vested with the exclusive control of the deposit, and that the deposit was thus in strict and legal compliance with the stipulation.

It is not suggested that the husband and wife were joint lessors, or that the payment of the rental could have been made to the wife; and, in view of the law which vests the exclusive control of the community property in the husband (article 2404, Civil Code), the suggestion that the community was the lessor is not made with any idea that the payment of the rental could have been made to the wife, or that a deposit made to her credit alone would have been in compliance with the stipulation for the deposit to be made to the credit of the husband, but rather that the rental being community property, and the husband having exclusive control of the community property, the deposit of funds belonging to the community to the joint credit of the husband and wife vested the exclusive control in the husband.

Ordinarily, where a deposit is made by a third person to the joint credit of several persons, the depositary must account to each of them and cannot be relieved of the obligation by showing that he accounted to one of the persons in whose name the deposit was made (article 2949, Civil Code; article 1937, Code Napoleon; Hue. vol. 11, p. 314, sec. 244), and, conceding that defendant was attempting to comply with the stipulation and not to deal with the wife as a party to the contract, the question is whether or not the deposit to the joint credit of the husband and wife vested the exclusive control of the deposit in the husband.

The bank or depositary was not a party to the contract and could not have been advised of whether or not the property covered by the contract was community property, and we do not think the depositary could have presumed that the property leased was community property, and that the rental belonged to the community and was under the exclusive control of the husband, and, unless it can be said that the mere fact of the deposit having been made to the joint credit of the plaintiff, A. A. Le Rosen, and his wife, Louise Le Doux Le Rosen, vested the exclusive control of the deposit in the husband, we do not think the deposit could be said to have been in compliance with the stipulation.

The depositary having accepted the deposit from defendant for the joint account of the husband and wife, it could not be said to have been obligated to account to the husband alone, and we think it follows that the deposit was not under the exclusive control of the" husband, and that the deposit did not have the effect of extending the option.

As to the plea of estoppel, there was not anything in the written contract which could have led the defendant to believe that the deposit could be made other than as stipulated, and the evidence does not indicate that plaintiff did anything which could have suggested that a deposit to the joint credit of himself and wife would be acceptable, and the estoppel pleaded being based solely on plaintiff’s silence or inaction, and, there not being any legal duty imposed upon plaintiff to. advise defendant, who was well aware of the .conditions under which the option could be extended, we do not think plaintiff was es-topped by his silence or inaction, and the plea of estoppel was properly overruled.

The judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 3499
    Second Circuit
    GANDY ET AL. v. CALDWELL
    (July 1, 1929. Opinion and Decree.)
    (January 6, 1930. Affirmed by Supreme Court on Writ of Certiorari and Review.)
    Poster, Hall & Smith, of Shreveport, attorneys for plaintiffs, appellants.
    L. K. Watkins and A. S. Drew, of Min-den, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a petitory action by Annie May Gandy, and Hoke Gandy and Mrs. Glennye Gandy as natural tutrix of Guy Martin Gandy as the only heir of Guy Gandy, deceased. They seek judgment against Sidney C. Caldwell decreeing them to be the owners in indivisión of an undivided three-tenths of 183.00 acres of land, more or less, situated in Webster parish, Louisiana, described as S% of SE*4; NW‘/4 of SE%; SW% of NE%; and NE% of SEÜ of Section 30 in Township 19 North Range 8 West; less 17.00 acres on the east side of the last named forty acres, and putting them in possession of the land. They allege—

“That one, Sidney C. Caldwell, a resident of your said parish, ’and state, is in the actual, physical possession of said property, and has had said possession since about November 16, 1916, and refuses to recognize your petitioners as the owners of an undivided three-tenths interest in said property, although the said Sidney C. Caldwell has no title, or at least has no valid claim to said property.”

They allege that Annie May Gandy, Hoke Gandy and Guy Gandy purchased the share in the land from Mrs. Jessie A. Pulbright and husband J. C. Pulbright on November 14, 1904, by act recorded in volume 15 at page 285 of the conveyance records of Webster parish, and that Guy Gandy died intestate and left as his sole heir Guy Martin Gandy; and that Mrs. Jessie A. Pulbright acquired the property by purchase from Mrs. Martha C. Alamand, wife of William J. Alamand, on December 19, 1900, by ’act recorded in volume 10 at page 639 of said records.

It is further alleged that one C. A. Gandy, pretending to act as tutor of the plaintiffs Annie May Gandy and Hoke Gandy and of Guy Gandy,

“he having assumed certain qualities without having complied with the formalities and requirements of law, pretended to sell their interest in said property to one W. H. Bailey on November 25, 1913, as per act recorded in conveyance book 24 page 107 of the records of your said parish. That they were minors at the time of said pretended sale and that they did not receive anything whatsoever therefor and have never received anything therefor.”

The prayer is for judgment decreeing Annie May Gandy and Hoke Gandy and Guy Martin Gandy to be the owners of an undivided three-tenths of the property and as such putting them in possession thereof and for $150 a year as rent of their share until restored to possession of it.

The defense is that plaintiffs, Annie May Gandy and Hoke Gandy, and Guy Gandy, deceased, acting through said C. A. Gandy as their duly qualified tutor, purchased the undivided interest in question in the land along with Mrs. Edith Goodwill Gandy and others, who purchased the other seven-tenths interest therein, from Mrs. Jessie A. Fulbright and her husband, by act recorded in volume 15 at page 285 of said conveyance records; and that, having so acquired the property, they were estopped to question the authority of the said C. A. Gandy to act as their tutor in its subsequent sale to W. H. Bailey; that C. S. Gandy was the duly appointed, qualified and acting tutor of Annie May Gandy, Hoke Gandy and Guy Gandy, and that he was duly authorized to sell their share in the land to W. H. Bailey for the price paid by the purchaser and that he received the price and as their tutor accounted to them for it.

That defendant purchased the property in good faith from Thomas Crichton, husband of Kate Jackson Crichton, by act translative of title dated November 16, 1916, recorded in volume 18 at page 623 of the conveyance records of Webster parish, and has been in actual, physical possession of the property as owner ever since.

And he pleads the prescriptions of four, five and ten years.

There were various calls in warranty and answers by those called in warranty; but the view we take of the case renders it unnecessary for us to consider the question of warranty.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing her suit and she has appealed.

OPINION

Plaintiffs having alleged title in defendant under a deed executed by their coheirs of age and C. A. Gandy as their tutor could not attack that title without putting themselves in the position of a vendor attacking his own acts.

The allegations of the petition under which it was sought to introduce evidence as to the nullity or invalidity of the deed were the following:

“That one C. A. Gandy, pretending to act as their tutor, he having assumed certain qualities without having complied with the formalities and requirements of law, pretended to sell their interest in said property to one W. H. Bailey on November 25, 1913, ás per act recorded in conveyance book 24 page 107 of the records of your said parish.

“That they were minors at the time of said pretended sale and that they did not receive anything whatsoever therefor and have never received anything therefor.”

These allegations, in our opinion, cannot be construed to mean anything more than an attack on the acts of C. A. Gandy as their tutor on the ground that he pretended to act in that capacity without being legally authorized to do so.

It is well settled in the jurisprudence of Louisiana that the authority of a tutor cannot be attacked collaterally.

The first and law syllabi of Succession of Jacob Hawkins, 35 Ann. 591, read as follows:

“The capacity of a tutrix cannot be attacked collaterally; neither can that of an undertutor.

“Payment of the price to a specially authorized agent of the tutrix is payment to her and concludes the minors.”

In Robinson vs. Scharfenstein, 148 La. 364, 86 So. 915, it was said:

“Nothing is better settled than that the appointment of a tutor cannot be attacked-collaterally. Leckie vs. Fenner, 9 Rob. 189; Stewart’s Curator vs. Row, 10 La. 530; Succession of Garrison, 15 La. Ann. 27; Martin vs. Jones, 12 La. Ann. 168; Succession of Hawkins, 35 La. Ann. 591; Succession of Haley, 49 La. Ann. 713, 22 South. 257. In the first three of the cases cited, the ground of attack was that the appointment of the tutor had been made by a court other than that of the domicile o.f the minor and therefore by a court without jurisdiction — about as serious a ground of nullity a,s could well be thought of.”

In Wright vs. Calhoun, 151 La. 998, 92 South. 589, it was held that the appointment of the tutor having been made by a competent court and letters of tutorship issued to him, the appointment could not be attacked except in a direct action.

Under the allegations of the petition and the evidence offered in support thereof plaintiff acquired the property in controversy through a purchase made for them by C. A. Gandy acting as their tutor; and having accepted his authority to act for them as such in acquiring the property, they cannot collaterally attack his authority as such as they are seeking to do in this action.

Plaintiffs’ notarial act of transfer with warranty through their tutor stands as a perpetual bar between them and any judgment recognizing them as the owners of any interest in the land.

The petition does not allege any ground of nullity in the sale by C. A. Gandy as tutor to W. H. Bailey other than that C. A. Gandy was never legally appointed their tutor, and was therefore without authority to act for them as such.

On trial evidence was offered in support of an attack on the sale based on alleged defects in the family meeting proceedings leading up to the sale. This evidence was objected to by the defendant on the ground that it was not responsive to any allegation of the petition, and it was admitted subject to the objection. In our opinion the objection was well taken and should have been sustained.

Civil Code, Article 2624, provides:

“All warranties to which private sales are subject exist against the heir in judicial sales of the property of successions.”

Every sale implies warranty against any acts of the vendor and compels the vendor not only to refrain from doing anything tending to evict the vendee but requires him to defend any attack that may be made upon the title transferred by third persons.

Civil Code, Article 2501.

Louisiana Digest, vol. 6, page 613.

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


author: HIGGINS, J.

text:
    Nos. 13,226, 13,230, 13,235, 13,250
    Orleans
    SIMEON v. BOARD OF LEVEE COM’RS OF ORLEANS LEVEE DIST.
    AND TWENTY-ONE OTHER CASES
    (November 18, 1929. Opinion and Decree.)
    John B. Perez, St. John Perret, Hy. G. McMahon, and John H. Holmes, of New Orleans, attorneys for plaintiffs, appellants.
    , Monroe & Lemann, Arthur B. Hammond, Jas. G. Schillin and W. Brewer, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

These are a series of suits commonly called “reparations cases.” In some of these cases the same points of law are at issue, and for the convenience of the court they have been consolidated into groups for the purpose of decision.

Plaintiffs entered separate suits against the defendant under the provisions of a constitutional amendment embodied in Act No. 2 of the Extra Session of the Louisiana Legislature of September, 1927. The petition in each instance claims loss or damage, first, for trapping, and, second, for loss of revenue, such as labor, fishing, etc., on account of the artificial crevasse caused by the cutting of the Mississippi river levee, by the officials of the state of Louisiana, at Caernarvon, Plaquemines parish, in this state. Plaintiffs also seek to recover attorney’s fees for the filing of these suits under the provisions of the constitutional amendment.

The defendant in each case filed an exception of no cause of action against the claims for loss or damage for labor, fishing, etc., and a plea of prescription against the claims for attorney’s fees. These exceptions of no . cause of action and pleas of prescription were maintained in each case and a- judgment duly rendered and signed by the district court. This left only the item of trapping losses still pending before the trial court.

The plaintiffs in each case then sold, transferred, and assigned their trapping claims to one William A. Walsingham, agent, who compromised these claims, and motions were then filed to discontinue the suits in so far as the trapping items were concerned, and judgment was accordingly entered discontinuing the suits as to the trapping claims.

Plaintiffs in each case then appealed the judgments sustaining the exception of no cause of action, and dismissing the labor, fishing, etc., claims, and the pleas of prescription as to attorney’s fees. Upon the transcript being filed in this court, in due time, defendant filed motions in each case to dismiss the appeals upon grounds, which are common to the respective groups of cases classified as follows:

Class 1. In the following two cases, to-wit, No. 13240 Patrick Peat, No. 13249 James Purnell, defendant contends the only judgment appealed from was signed more than 30 days prior to the filing of the petition for the appeal, and there is still pending undisposed of, in the lower court, a claim for attorney’s fees.

Class 2. In the following five cases, to-wit, No. 13226 Joseph Simeon, No. 13227 James Williams, No. 13228 Tony Fernandez, No. 13229 Vincent Almoso, No. 13230 Manuel Perez, defendant contends the only judgment appealed from was signed more than 30 days prior to the filing of the petition for the appeal. The last judgment disposing of the last issue in the suit was signed within 30 days of the date of the filing of the petition for the appeal, but no appeal was taken from that judgment, and, moreover, the claim disposed of by the court in this last judgment had been assigned by the original plaintiff and present appellant and was dismissed voluntarily on the motion of the assignee.

Class 3. In the following fifteen cases, to-wit, No. 13235 Louis Blaise, No. 13236 Edward Daniel, No. 13237 Louis Encalade, No. 13238 Jordan Freeman, No. 1323-9 Bennie Gonzales, No. 13241A Sam Smith, Jr., No. 13241B Steven Steward, No. 13242 Toney Mones (for Mike Mones), No. 13243 Domingo Campo, No. 13244 Jacob Hamilton, No. 13245 Sam Hill, No. 13246 Paul Perez, No. 13247 John Joseph Ruiz, No. 13248 Edwin Richaux, No. 13250 Rufus B. Moran, defendant contends that the judgments appealed from were signed more than 30 days prior to the date of the filing of the petitions for appeals, and the final judgments disposing of the last issue in the cases were also signed more than 30 days prior to the filing of the petitions •for appeals.

We shall now dispose of these cases in the above order.

Class 1.' In these two cases plaintiffs and appellants agree and concede that, as there is still pending in the lower court a claim for attorney’s fees, the judgment sustaining the exception of no cause of action is still interlocutory, as all issues in the case have not been disposed of, and that the appeal is therefore premature. Bossier’s Heirs vs. Hollingsworth & Jackson, 117 La. 221, 41 So. 553.

The motion to dismiss the appeal in these two cases is therefore maintained and the appeals dismissed.

Class 2. In these cases the record shows that the judgments sustaining the exceptions of no cause of action and pleas of prescription in three of these cases were signed on May 29, 1929, and in two of them on July 11, 1929. The judgments dismissing the suits in so far as trapping claims are concerned, upon joint motion of the assignee and plaintiffs, were signed on August 1, 1929, and on August 27, 1929, plaintiffs filed- their petitions for appeals from the judgments sustaining the exceptions of no cause of action, and the pleas of prescription on May 29, 1929. Thus, it appears that the appeals were taken within 30 days from the last judgments disposing of the remaining issues in the cases, i. e., trapping claims, but more than 30 days after the judgments sustaining the exceptions of no cause of action and pleas of prescription on May 29, 1929, and July 11, 1929. 1

It is the contention of the defendant in each case under its motion to dismiss the appeal that, as the judgments from which the plaintiffs have appealed were signed more .than 30 days before the appeal was taken, plaintiff’s right of appeal was prescribed under the provisions of the constitutional amendment under which the suits were filed.

The relevant part of the constitutional amendment applicable to this controversy reads as follows:

“The suit which either the claimant or the Levee Board may bring to determine the right to and the amount of said compensation shall be filed by. or against said Levee Board by petition in the Civil District Court for- the Parish of Orleans and shall be tried without intervention of a jury. The judgment of said Civil District Court shall be final unless an appeal be taken within thirty days from the date of the signing of said judgment. * * *” (See Act No. 2 of Ex. Sess. 1927, sec. 4.)

Counsel for the defendant further contends that the appeal by the plaintiffs should have been from the ultimate decision rendered in the case dismissing the remaining issues involved in the cases, and not a direct appeal from the judgments sustaining the exceptions of no cause of action and the pleas of prescription. In support of this contention they cite the case of Bossier’s Heirs vs. Hollingsworth & Jackson, 117 La. 221, 41 So. 553, 555, in ■which the court, discussing the right of appeal from an interlocutory judgment, where there were other issues undisposed of, pending in the lower court, said:

“It can be reviewed, on the appeal from the judgment which may ultimately be rendered in the case (provided the plaintiffs take such appeal or answer it, as the case may be); but we do not think that it would conduce to an orderly .administration of justice to review it at this time. * * * ”

Therefore, says defendant, as the plaintiffs appealed direct from the judgments sustaining the exceptions of no cause of action, and the pleas of prescription, and more than 30 days elapsed between the signing of the judgments and the taking of the appeals, that plaintiffs’ right of appeal is prescribed; and that, as plaintiffs have not appealed from the final judgment dismissing the other issues in the case, as plaintiffs should have done and as was suggested in the cited decision, the appeal herein should be dismissed.

Thus it will be seen that defendant seeks to place plaintiffs in a dilemma, where they would be deprived entirely of the right to an appeal. Plaintiffs could not appeal the judgment dismissing the trapping claims, as they consented to it. The jurisprudence is clear that one cannot appeal a judgment acquiesced in by him. It is to be noted, with reference to the first class of cases herein, that the motion of defendant to dismiss the appeal was based upon the ground that, as there were other issues pending in the district court, the direct appeals from the judgments sustaining the pleas of prescription and no cause of action, were premature. It is unquestionably the law that there can be no direct appeal from an interlocutory judgment where there are other issues undisposed of pending in the district court. Hence- defendant takes the position that plaintiffs had no direct right of appeal from the interlocutory judgment sustaining the exceptions of no cause of action and pleas of prescription, because there were other issues undisposed of pending in the district court; but when these other issues are finally removed, so that the interlocutory judgment then becomes a final judgment, plaintiffs are then met with a plea of prescription of 30 days, which counsel for defendant contends should date or run from the time of the signing of the judgments sustaining the exceptions of no cause of action and the plea of prescription.

For the law to place a party litigant in such a position would be manifestly unfair and unjust. The fallacy in defendant’s contention lies in the fact that defendant assumes that the prescriptive period for taking the appeal would run against the interlocutory decree, from which the plaintiffs could not directly appeal until the other issues in the case are disposed of either amicably or by judgment of court, while these issues were still pending. The case of Bossier’s Heirs vs. Hollingsworth et al., relied upon by defendant, shows that the court, in using the language cited, was speaking of a contested case where the remaining issues were disposed of by the ultimate judgment of court that merged all the issues for purposes ofo appeal, and not a judgment by way of compromise or amicable settlement, because a judgment acquiesced in cannot be appealed. The case does not hold that an appeal from the ultimate decision is the only method by which an interlocutory judgment can be reviewed. It does not hold a direct appeal from an interlocutory judgment cannot be taken where the remaining issues are compromised. . The case is therefore not in point.

The identical issues presented here were disposed of by this court in an unreported ease which is in point, and as it is short, for convenience and reference, we quote it in its entirety:

“The defendant, appellee here, moves to dismiss this appeal under the following circumstances:

“On October 4th, 1917 plaintiff sued defendant for $1665 alleging that defendant had illegally collected certain rent, to wit, rent for the months of January 1914 to January 1917 both inclusive (say 25 months at $45 per month); same having been paid to defendant by one Henry Capus for the use of certain premises which plaintiff had caused to be seized for debt by the Civil Sheriff, and which were then under seizure as the property of the Succession of Joseph Franck; all of which rent plaintiff claims should have been paid to the sheriff and applied towards the discharge of its writ, upon which ,tbere still remains due an amount in excess of the claim herein made.

“Defendant filed a plea of prescription of one year.

“On January 24th 1918 the trial judge maintained the plea of prescription as to all the claim for' rents prior to the month of October 1916 and rejected plaintiff’s demand as to previous months, limiting plaintiff’s claim to the months of October, November and December 1916 and January 1917; and said judgment was signed on January 30th 1918.

“Thereafter defendant answered denying liability for the rent for October, November and December 1916 and January 1917; but he declined to answer as to the rent for the prior months on the ground that by the judgment aforesaid same had been eliminated from the case and was no longer an issue therein.

“There was no further action in the case until January 29th 1919. On that day plaintiff discontinued, waived and abandoned its claim for the months of October, November and December 1916 and January 1917, reserving however its right of appeal from the judgment aforesaid; which had been rendered on January 24th 1918 and signed on January 30th 1918.

“II. The motion to dismiss is based upon the ground that the judgment was not final; that being interlocutory it needed no signing; ■ and more than one year had elapsed since the rendition thereof when the appeal was taken.

“III. It must be conceded that under the jurisprudence the judgment appealed from was not final when rendered, because it did not then dispose of all the issues in the case. Harris v. Stockett, 35 La. Ann. 387; State ex rel. Pflug v. Judge, 35 La. Ann. 765; Bossier’s Heirs v. Hollingsworth & Jackson, 117 La. 221, 41 So. 553.

“But it is only in that respect that the judgment was not final, to wit, because it then left other issues still to be decided. Otherwise the judgment had the form and substance of a final judgment.

“Now it is manifest that the only reason why an appeal is not allowed from a judgment which though final in form and substance as far as it goes, yet does not dispose of all the issues in the case, is the inconvenience of having numerous appeals in the same case as well as the irregularity involved in splitting up a case so as to have some issues already pending on appeal whilst other issues are still pending in the trial court. See Bossier Heirs vs. Hollingsworth & Jackson, 117 La. 221, 226, 41 So. 553.

“But it must be borne in mind that the right to have a preliminary or interlocutory judgment reviewed on appeal at some time or other exists unimpaired and is only suspended until such judgment becomes final by being merged into the last judgment, the one which disposes of all the issues involved. Bossier Heirs vs. Hollingsworth & Jackson, 117 La. 221, 41 So. 553.

“Hence where all possibility of the inconvenience and irregularity aforesaid ceases, the rule founded thereon must also cease. Cessante ratione legis, cessat ipsa lex.

“The essential feature of the whole matter seems therefore to be whether or not, when the appeal is taken, the whole case has been finally disposed of in the court below; and it seems to us that it is quite immaterial under the circumstances, whether this be the result of a subsequent judgment, by the court, or he brought about by the act of the parties or either of them.

“For, turn it and twist it as you will, the fact remains that the case then stands with a judgment which effectively and forever disposes of certain controversies between the parties, and does so adversely to the interests of one of them.

“We are therefore of opinion that where a judgment has the form and substance of a final judgment and is unappealable only because it does not dispose of all the issues in the case, such judgment* becomes final and appealable whenever all the other issues are disposed of or eliminated from the case whether by action of the court or the parties.

“We think the judgment appealed from became final and appealable when plaintiff discontinued its demand for the bal'ance of its claim not previously rejected. By that fact the judgment then became the last and only judgment which could be rendered in the case and disposed of all the issues therein. Bossier Heirs vs. Hollingsworth & Jackson, 117 La. 221, 41 So. 553. The appeal was taken in time, having been taken within a year after the judgment was signed. Code Prac. art. 593.

“The motion to dismiss is therefore denied.”

Interstate Trust & Banking Co. vs. Gerlando Alfano, No. 7557, Court of Appeal, Parish of Orleans, decided April, 1919. (See So. Rep. Dig.)

The motion to dismiss the appeals in the second class of cases is therefore denied.

Class 3. In these cases the record shows that the judgments sustaining the exception of no cause of action and plea of prescription were signed on June 1, 1929. The judgments dismissing the trapping claims were signed on August 14, 1929, and based on the joint motion of plaintiffs and the assignee of the trapping claims. The appeals by plaintiffs from the judgments sustaining the exceptions of no cause of action and pleas of prescription on June 1, 19.29, were filed on September 14, 1929. Counsel for defendant therefore contends that the judgment disposing of the last issue in the case was signed more than 30 days prior to the filing of the petition for the appeal, and under the hereinabove cited portion of the constitutional amendment the right of appeal has been prescribed.

This contention is based upon the fact that the 30 days allowed by the constitutional amendment for the taking of the appeal includes the day upon which judgment is signed and the day upon which the appeal is taken.

Article 318 of the Code of Practice provides :

“In all cases where delay is given either to do something or to answer, neither the day of serving the notice, nor that on which the act is to be done or the answer filed, are included. The exceptions to this rule are specially provided by law.”

The jurisprudence of our state is settled that article 318 of the Code of Practice applies to appeals in such a way so as to exclude from the delay provided .by law for the taking of the appeal the day on which the judgment is signed, as well as the day on which the appeal is taken.

In the case of Garland vs. Holmes, 12 Rob. 421, the suspensive appeal was taken on the eleventh day after the judgment was signed. The court, after holding that the tenth day was a dies non, and for that reason was not to be included in the 10 days, said:

“The course pursued by the Judge, was moreover justified by article 318 of the same Code” (of Practice).

The following cases are also worthy of note:

“The law and the courts do not favor the dismissing Of appeals. Omitting from the count in this case the day the judgment was signed, the intervening Sunday, and the day the bond was filed, it is in time.” Tupery vs. Edmondson, 29 La. Ann. 850.

“But we are not without judicial precedents in our present investigation, as we find several decisions of this court which * * * It has been held that in computing these 10 days the day on which the judgment was signed and the day on which the appeal was taken should not be included.” State ex rel. Solari vs. T. C. W. Ellis, Judge, 40 La. Ann. 793, 5 So. 63, 64.

See, also, State ex rel. Mercier vs. Judge of the Superior District Court, 29 La. Ann. 223; Rennyson vs. Davis, 6 Orleans App. 251; Daniel vs. Vasquez, 9 Orleans App. 300; State vs. Vicknair, 118 La. 963, 43 So. 635.

It therefore follows that the appeals were taken within the delay allowed by the constitutional amendment of 30 days, because the day upon which the judgment was signed and the day on which the appeal was taken are not counted.

The motion to dismiss the appeals with reference to the third class of cases is also denied..

It is therefore ordered, adjudged, and decreed that, in the following cases, the motions to dismiss the appeals be and they are hereby sustained and the appeals dismissed:

No. Title

13240. Patrick Peat vs. Board of Levee Commissioners of the Orleans Levee District.

13249. James Purnell vs. Board of Levee Commissioners of the Orleans Levee District.

It is further ordered, adjudged, and decreed that, in the following cases, the motions to dismiss the appeals be and they are hereby denied:

No. Title

13226. Joseph Simeon vs. Board of Levee Commissioners of the Orleans Levee District.

13227. James Williams vs. Board of Levee Commissioners of the Orleans Levee District.

No. Title

13228. Tony Fernandez vs. Board of Levee Commissioners of the Orleans Levee District.

13229. Vincent Almoso vs. Board of Levee Commissioners of the Orleans Levee District.

13230. Manuel Perez vs. Board of Levee Commissioners of the Orleans Levee District.

13235. Louis Blaise vs. Board of Levee Commissioners of the Orleans Levee District.

13236. Edward Daniel vs. Board of Levee Commissioners of the Orleans Levee District.

13237. Louis Encalade vs. Board of Levee Commissioners of the Orleans Levee District.

13238. Jordan Freeman vs. Board of Levee Commissioners of the Orleans Levee District.

13239. Benny Gonzales vs. Board of Levee Commissioners of the Orleans Levee District.

13241A. Sam Smith, Jr., vs. Board of Levee Commissioners of the Orleans Levee District.

13241B. Steven Steward vs. Board of Levee Commissioners of the Orleans Levee District.

13242. Tony Mones (for use and benefit of minor child, Mike Mones) v. Board of Levee Commissioners of the Orleans Levee District.

13243. Domingo Campo vs. Board of Levee Commissioners of the Orleans Levee District.

13244. Jacob Hamilton vs. Board of Levee Commissioners of the Orleans Levee District.

13245. Sam Hill vs. Board of Levee Commissioners of the Orleans Levee District.

13246. Paul Perez vs. Board of Levee Commissioners of the Orleans Levee District.

13247. John Joseph Ruiz vs. Board of Levee Commissioners of the Orleans Levee District.

13248. Edwin Richaux vs. Board of Levee Commissioners of the Orleans Levee District.

13250. Rufus B. Moran vs. Board of Levee Commissioners of the Orleans Levee District.


author: WESTERFIELD, J.

text:
    No. 11,874
    Orleans
    LUDERBACH v. CRISTINA & LAURICELLA, INC.
    (December 16, 1929. Opinion and Decree.)
    Dart & Dart, of New Orleans, attorneys for plaintiffs, appellees.
    Joseph M. Jones, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, Mrs. Louis F. Luderbach, joined in this proceeding by her husband, sues Cristina & Lauri-. celia, Inc., and Hecker Brothers, Inc., for the return of a deposit of $200, which she made with Cristina & Lauricella, Inc., as agent, on account of the purchase price of a certain piece of property belonging to Hecker Brothers, Inc., which she had agreed to purchase. Cristina & Lauricella, Inc., admit the possession of the deposit, but assert the right to retain it until the court should decide which of the parties to the agreement of sale owes it a commission as real estate agent. It does not claim that plaintiff owes the commission and asks no judgment against her, but “reconvenes” and prays for judgment against its co-defendant in the event that it should be required to return the deposit to plaintiff.

Hecker Brothers, Inc., answer, admitting that plaintiff made the deposit, as claimed, and assert that it should be returned, but resist the claim of its co-defendant for a commission.

The contract for the sale of property, under the terms of which the deposit was made and the commission claimed, stipulates that plaintiff shall pay $4,000, of which $733 was to be made up partly in cash and partly by the transfer of an equity she possessed in other property, and the balance, $3,267, “subject to homestead loan” of that amount.

Plaintiff made an unsuccessful attempt to get a homestead loan on the property and for that reason declined to go forward with her agreement.

It is argued that the agreement of sale contained the suspensive condition, the failure of which relieved plaintiff of her obligation to purchase the property, and that, in any event, the contract contained a potestative condition which rendered it invalid.

Without discussing the unusual character of defendant’s pleading, it is sufficient to say that we have repeatedly held that an agreement to purchase property, by the terms of which all or a ¡part of the purchase price was conditioned upon the purchaser obtaining a homestead loan, or, as it is usually phrased, “subject to homestead loan,” was potestative, unenforceable, null and void. East Bank Land Co., Inc., vs. Mrs. Lillian Hoffstetter (La. App.) 125 So. 160, this day decided; Mathews Bros. vs. Schoenberger, 11 La. App. 155, 123 So. 133; Decker vs. Renaudin, 10 La. App. 725, 122 So. 600; Parks vs. Cilluffa, 7 La. App. 749; Titus vs. Jackson, et al., 7 La. App. 37.

A real estate agent- is not entitled to a commission for procuring a purchaser who qualifies his offer to purchase with illegal conditions.

The judge a quo held that the deposit should be returned to plaintiff and that no commission was due. His conclusions are correct and, for the reasons herein assigned, the judgment appealed from is affirmed.


text:
    No. 11,141
    Orleans
    BASHA v. ALES
    (October 21, 1929. Opinion and Decree.)
    (November 18, 1929. Rehearing Refused.)
    Walter B. Hamlin, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlord against a tenant for damages to leased premises. The court below awarded $196.90. After reviewing the evidence in the record we are of opinion that with the exception of the removal of a plank in the floor of one of the rooms and the removal of several shelves, plaintiff has failed to establish the alleged damages claimed by a preponderance of the evidence.

We believe that $50 will be a proper allowance under the circumstances.

For the reasons assigned the judgment appealed from is ■ amended by reducing the amount awarded from $196.90 to $50, and as thus amended affirmed.


author: JANVIER, J.

text:
    No. 11,889
    Orleans
    PROBST & PICHELOUP v. DANE
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    Stanley McDermott, of New Orleans, attorney for plaintiffs, appellees.
    Edrington & Carmouche, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiffs sue for a (portion of the real estate broker’s commission resulting from the sale of certain property which was listed with them. Defendant is also a real estate broker, in connection with whom the sale was effected. Defendant contends that there was never any agreement to divide the commission and that under the circumstances surrounding the sale there was no obligation on his part to make a division.

Only a question of fact is involved and a reading of the evidence convinces us that the trial court was correct in finding that plaintiff’s contention was correct and that a division of the commission had been agreed upon.

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


text:
    No. 11,543
    Orleans
    VICTORY HOMESTEAD ASSN. v. HUGHES
    (December 16, 1929. Opinion and Decree.)
    E. F. Henriques, of New Orleans, attorney for (plaintiff, appellee.
    John C. Foster, of New Orleans, attorney for Robt. P. Hyams Coal Co.

      W. 0. Hart, of New Orleans, attorney for Civil Sheriff.
    Delville H. Theard, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a foreclosure proceeding into which certain lienholders were impleaded by the Civil Sheriff on rule to distribute the proceeds. The trial court recognized the claim of Robt. P. Hyams Coal Company, Ltd., in the sum of $341.45. From the judgment on the rule to distribute the proceeds, an appeal was taken by the defendant in execution, Elliott Hughes, only to the extent that the judgment recognized the claim of Robert P. Hyams Coal Company, Ltd. The plaintiff in execution, Victory Homestead Association, did not appeal.

The appellant, Hughes, did not oppose the claim of the Robert P. Hyams Coal Company, Ltd., in the trial court and in this court no appearance was made in his behalf and no brief filed or oral argument presented. We are, therefore, not advised as to the grounds upon which the judgment is attacked.

The appellee, Robert P. Hyams Coal Company, Ltd., has answered the appeal and asked for the assessment of 10 per cent damages for frivolous appeal under Art. 907 of the Code of Practice. Under the circumstances the damages prayed for will be allowed.

For the reasons assigned, the judgment appealed from is affirmed and the ■ appellant, Elliott Hughes, is condemned to pay to the appellee, Robert P. Hyams Coal Company, Ltd., a sum equal to 10 per cent of $341.45, the amount of the- judgment appealed from.