author: ODOM, J.

text:
    No. 2095
    Second Circuit
    JOHNSON v. THOMAS
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus 6y the Editor)
    1. Louisiana Digest — Evidence—JPar. 266.
    The stipulation in an oil lease that' “the vendor and vendees each shall remain owners of a one-half interest of all the minerals and mineral rights and privileges in and to the said tract” is not ambiguous and parol testimony to explain is, therefore, not admissible.
    2. Louisiana Digest — Mineral Rights — Par. 4, 5.
    A reservation in the sale of land, of the mineral rights, is a reservation not of one-half of the minerals, but a one-half interest in the right to explore for them and reduce them to possession.
    3. Louisiana Digest — Mineral Rights — Par. 6, 9, 10.
    A stipulation in an oil lease that in case the lessee failed to begin operations within^ a certain time he should have . . a twelve months’ extension upon payment of $1000 is part of the consideration, of the lease and each of the lessors has the same interest in this payment as in the original sum paid.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Claiborne. Hon. J. E. Reynolds, Judge.
    Action by A. R. - Johnson against R. B. Thomas and F. S. Thomas.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Nash Johnson, of Shreveport; T. H. McEachern, of Homer, attorneys for plaintiff, appellee.
    L. K. Watkins, of .Minden, attorney for defendants, appellants.
   ODOM, J.

On December 3, 1918, A. R. Johnson, the plaintiff, sold to the defendants a tract of land situated in the parish of Claiborne.

The land was sold subject to a mineral lease which had been previously granted by Johnson to Á. E. Wilder. '

The deed from Johnson to the defendants expressly stipulated that all amounts due under said lease up to January 1, 1919, should be paid to Johnson, the vendor, and that in case said lease was continued under the recitals therein contained—

“all amounts coming due thereunder after January 1, 1919, shall be payable, one-half to the¡ vendor and one-half to the vendees herein; further still, that in the event said lease shall be annulled by limitation or otherwise, then the mineral rights on and in the said tract of land shall revert one-half to the vendor and one-half to the vendees herein. It being the intent of this act that outside of the amounts due on said lease up to January 1, 1919, that the vendor and vendees thereafter shall be and remain owners each of a one-half interest in and to all the minerals and mineral rights and privileges in and to the said tract of land.”

The lease from Johnson to Wilder seems to have expired by limitation after Johnson sold the land to the defendants.

At the expiration' of said lease, the mineral rights in said land, under the terms of the deed, reverted, one-half to Johnson and one-half to defendants.

Thereafter, on December 17, 1919, Johnson and the defendants executed a joint mineral lease on forty acres of the land to W. B. Beach for a cash consideration of $14,000.00, the lease covering a period of five years from its date, with the stipulation, however, that the drilling of a well thereon should be begun by March 17, 1920, otherwise the lease contract should terminate as to all parties, unless the lessee, on or before that date, should pay or tender to the lessors the sum of $1000.00—

“which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like (payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively.”

The lessee, it seems, did not begin the drilling of a well on said land by March 17, 1920. Previous to that date, however, he paid to defendants the sum of $1000.00 in order to continue the lease for an additional twelve months.

As stated, the lessee paid a cash consideration'of $14,000.00 for the lease, which amount was divided equally between Johnson, who received $7000.00, and the two defendants, who received $7000.00.

The $1000.00 which was paid by the lessee for the extension of the lease was paid to the two defendants.

Johnson, the plaintiff, made demand upon them for $500.00, one-half of said amount, and upon their refusal to pay him this amount he brought this suit.

Defendants, in answer, admitted the receipt of the $1000.00 paid by the lessee for an extension of the lease and admitted their refusal to pay one-half thereof to Johnson, and set up as their reason for such refusal that Johnson’s reservation of the minerals and mineral rights in said land—

"only reserved to the plaintiff an interest in the minerals without conveying any rights whatever to rents and rentals in future leases on the property.”

And they further alleged that it was the understanding between the parties that Johnson reserved a one-half interest in the minerals and not a one-half interest in the rents and rentals.

And, in reconvention, defendants alleged that the $7000.00, one-half the amount of the original consideration for the lease, whs (paid to Johnson through error, and they reconvene for that amount.

There was judgment in the District Court in favor of plaintiff for $500.00 and costs and rejecting defendants’ demands in reconvention; from, which judgment the defendants have appealed.

OPINION

Counsel for defendants argues that the reservation made by Johnson of the minerals and mineral rights in and under the land is ambiguous and that parol testimony was admissible to show the true intent of the parties.

Parol testimony on this point was admitted by the lower court over the objection of plaintiff.

We do not detect the slightest ambiguity in the reservation which Johnson made in the deed to defendants.

Said reservation is as follows:

“That in the event said lease (that is, the old lease from Johnson to Wilder which subsequently expired by limitation and which is not involved in this suit) shall be annulled by limitation or otherwise, then the mineral rights on and in the said tract of land shall revert one-half to the. vendor and one-half to the vendees herein. It being the intent of this act that outside of the amounts due on said lease (the old lease) up to January 1, 1919, that the vendor and vendees thereafter: shall be. and remain owners each of a one-half interest in and to all the minerals and mineral rights and privileges in and to. the said tract of land.”

The sum and substance of counsel’s contention is that the above reservation left Johnson the owner of a half interest in the minerals under the surface of the land, and that in case the lessee found oil or gas one-half of the amount brought to the surface would belong to him.

If counsel’s position be correct, then Johnson’s reservation amounted to nothing, for it is settled jurisprudence that the owner of land does not own the fugitive minerals under its surface separate and apart from the land and that all he owns is the right to explore for them and reduce them to possession and that ownership of them is acquired only when they are reduced to possession; and, further, that a sale of land with a reservation of the minerals gives the owner the right to explore for such minerals and that such right can be made the lawful subject of barter and sale.

In the recent case of Bodcaw Lumber Co. vs. Cox, et al., 159 La. 810 (106 South. 313), the court quoted the following from the case of Frost-Johnson Lumber Co. vs. Sailings Heirs, 150 La. 863, 91 South. 207, to-wit:

“We may hold, and we do hold, that, no matter what the intention of the parties be, the owner of lands cannot convey or reserve the ownership of the oils, gases, and waters therein apart from the land in which they lie; and we so hqld, because the owner himself has no absolute property in such oils, gases, and waters, but only the right to draw them through the soil and thereby become owner of them.”

And the following from the case of Lieber vs. Ouachita Natural Gas & Oil Co., 153 La. 160 (95 South. 538), to-wit:

“In older to ascertain its nature, it may be said that while it purports on its face to be a sale of the oii and gas in and under the land, and is expressly, by a stipulation in it, declared to be such, yet the law regards it as a mere conveyance or grant of the right to mine for those minerals, and to reduce them to possession and ownership, and not as a sale of them in their natural state, beneath the surface.”

After quoting from the Frost-Johnson case, supra, the court said:

“The doctrine thus stated had been announced in eight previous cases and has been reaffirmed in at least four cases since the Frost-Johnson case. * * * But it does not follow, because of the principle so firmly settled, tha* the right to mine for the minerals named and to reduce them to possession cannot be made the lawful subject of barter and sale. In all cases to which we have referred, and in which it was held that oil and gas beneath the surface is not subject to ownership, as corporeal property, it was plainly and distinctly held that the grant or reservation of the oils and gases carried with it the right to extract such minerals from the soil; that such right was an incorporeal right — a real right or servitude.”

And, after quoting from the Lieber case, supra, the court said, in the Bodcaw Lumber case:

“From which it follows that, when the plaintiff reserved the oil, gas and minerals under the land sold, it reserved the right to mine for such minerals and to reduce them to possession.”

In the case at bar, Johnson sold the land to defendants and reserved—

“one-half interest in all the minerals and mineral rights and privileges in and to said tract of land.”

In doing so, he reserved, according to the settled jurisprudence of this state, not one-half the minerals, as contended by counsel, but a one-half .interest in the right to explore for them and reduce them to possession; and. under -the jurisprudence, that right was a lawful subject for barter and sale.

Subsequently he, and the defendants sold this right to W. B. Beach for $14,000.00. As Johnson owned one-half interest in this right he was entitled to one-half the proceeds of the sale.

The sale of this right was made with the express stipulation that the lessee or vendee should have five years in which to reduce the minerals to possession, but in case he fajiled to begin operations by a certain time he should pay an additional consideration of $1000.00 for each twelve months’ extension. This $1000.00, when paid, was part qf the consideration for the lease. Johnson had the same interest in the payment as he had in the original sum paid. He was entitled to one-half of it.

The reservation made by Johnson being without ambiguity, parol testimony was inadmissible to show the intent of the parties.

However, the testimony was admitted subject to the objection and is in the record. But, even if this testimony be considered, defendants have not made out their case.

Mr. R. B. Thomas, one of the defendants, testified that he had always held the opinion that a reservation of the minerals carried with it no right to the rentals and that he had so stated to Mr. Johnson, but that the lawyers advised him to the contrary, and upon their advice he paid Mr. Johnson one-half of the $14,000.00. He did not say, however, that Mr. Johnson, at any time, agreed that the defendant and his co-defendant should have the rentals. His refusal now to pay the $500.00 claimed in this suit is based upon his opinion that plaintiff is not entitled to it, although he has been advised to, the contrary by attorneys.

Finding no error in the judgment, it is accordingly affirmed with costs.

REYNOLDS, J„ recused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2589
    Second Circuit
    TURNER v. THE ITEM CO.
    (February 24, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

      1. Louisiana Digest — Pleading—Par. 66, 71.
    Where, on the trial of an exception to the jurisdiction of the court ratione personae, the evidence shows that ■ the defendant is not liable for damages as alleged in the plaintiff’s petition, the exception is properly sustained by the court.
    2. Louisiana Digest — Mandate—Par. 1.
    A corporation publishing a newspaper cannot be held liable in damages for the torts, while delivering papers, of one who buys its papers under contract, the- purchaser not being the agent of.the corporation.
    3. Louisiana Digest — Evidence — Par. 63, 74.
    The contractual relations between a newspaper corporation and the purchaser of its papers cannot be proved by similar relations with other purchasers, such evidence being irrelevant.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Samuel D. Turner against The Item Company, Limited.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George J. Ginsberg, of Alexandria, attorney for plaintiff, appellant.
    Louis Henry Gosserand, of New Orleans, attorney for defendant, appellee.
   ODOM, J.

The defendant, The Item Company, Limited, is a corporation organized under the law’s of this state and is domiciled in the city of New Orleans.

Plaintiff brought this suit against it in the parish of Rapides to recover damages for the killing of his son in Alexandria through the fault and negligence of one ! alleged to be a servant and employee of defendant.

Defendant excepted to the jurisdiction of the court ratione personae, which exception was sustained by the court, and plaintiff appealed.

OPINION

The suit is brought against defendant in Rapides parish upon the theory that the defendant at the time the alleged cause of action arose' was engaged in business in that parish, and Section 25 of Act 267 of 1914 and Clause 9 of Article 165 of the Code of Practice are relied upon by plaintiff to sustain the contention that the venue of this suit is properly laid in Rafpides parish.

The general rule is that one must be sued at his domicil. There are exceptions to the rule, and plaintiff contends that this case falls under one of the exceptions, to-wit:

“Where the corporation is engaged in business in more than one parish, the venue of the suit shall, at the otption of the plaintiff, be ip the parish where the cause of action arose, or at the domicil of the corporation, if the cause of action results from a trespass or an offense or quasi offense. * * *”

Section 25, Act 267 of 1914.

“In all cases where any corporation shall commit trespass, or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed.”

Code of Practice, Article 165, Clause 9.

It is contended by plaintiff that the defendant company was engaged in the business of selling and distributing its newspaipers in the city of Alexandria and, for that purpose, had as its agent and employee one Curtis K. Berlin, who had been employed to carry its newspapers, by truck, from the railroad station to news stands in Alexandria and Pineville; that his son, while riding on said Berlin’s truck, was thrown therefrom and killed through Berlin’s negligence.

Of course, if the defendant company was not engaged in business in Rapides parish, and if Berlin was not its servant, the venue is not properly laid.

The question raised by the exception is one of fact, on which the district judge heard testimony.

On the trial of the exception, plaintiff took the initiative and, by consent of the parties, or at least without objection, evidence was introduced tending to establish that Berlin, the. driver qf the automobile, was not the agent, servant or employee of defendant, and that defendant was not responsible for his acts, and while plaintiff does not contend that the evidence established that Berlin was the agent, servant or employee of defendant, or that defendant was responsible for the acts of Berlin, it is contended that the evidence does not affirmatively establish that defendant was not responsible for the acts of Berlin, and it is further contended that plaintiff offered evidence which was erroneously refused to be admitted, and that if the judgment should not be reversed, the cause should be remanded for the purpose of receiving the evidence erroneously rejected.

Considering the first position taken by plaintiff, and without discussing the allegations of the petition, Which are somewhat vague, we assume, for the purposes of the exception that the. ¡petition states a cause of action, and, if so, the right of action is based upon Articles 2315; et seq., of the Civil Code, or a quasi offense, and this being the case, then the petition on its face, shows, that the venue of the suit was properly in the parish of Rapides. (Clause 9, Article 165, Code of Practice; Castille vs. Caffery, etc., Co., Ltd., 48 Ann. 322, 19 South. 332; Culpepper vs. Arkansas Southern Ry. Co., 110 La. 745, 34 South. 761; also Paragraph (d), Section 25, Act 267 of 1914; and Paragraph (d), Section 5, Act 179 of 1918. However, in such an action, the plaintiff, in order to recover, would be bound to establish at least that Berlin was the agent, servant or employee of defendant and that the. negligence of Berlin was the cause of the death of plaintiff’s son.

The evidence introduced on the trial of the exception was directed to showing the relations existing between Berlin and the defendant, or one of the facts which it would be necessary for the plaintiff to establish in order to recover.

But it is contended that the burden of ¡proof was on the defendant on the trial of the exception.

Exceptions to the jurisdiction have been filed and considered prior to the merits in many cases bearing some analogy to the present. (Castille vs. Caffery, etc., Co., Ltd., and Culpepper vs. Arkansas Southern Ry. Co., 110 La. 145, 34 South. 761, supra; Jenkins vs. Salmen Brick & Lumber Co., 148 La. 29, 86 South. 601; Abadie vs. Natural Petroleum Co., 150 La. 1076, 91 South. 516; N. O. Great Northern R. R. Co. vs. S. T. Alcus & Co., 159 La. 36, 105 South. 91); but in all of these cases cited the exception appears to have been considered on the face of the pleadings; and while it was said in N. O. Gréat Northern R. R. Co. vs. S. T. Alcus & Co. that the defendant should have submitted evidence on the exception, yet in that case it appears that the fact to be established would not have affected the merits, while the issue of fact presented in the present instance goes directly to the merits and, if determined against plaintiff, he would not have a right of action against defendant in the parish of Rapides or elsewhere; and we are of the opinion the parties must be considered as having consented to the trial of the case by piecemeal, and if it be conceded that the evidence leaves in doubt a fact essential for plaintiff to recover, judgment dismissing his suit should follow.

The evidence offered tending to show the relations between Berlin and defendant consisted of the testimony of Harry Fox and the contract between Fox and defendant; the latter showing that defendant had agreed to furnish Fox with such copies of its papers as he should order, for which he agreed to pay two cents per copy for the Sunday ‘issue and one cent per copy for other issues, and that he, Fox, would act as dealer for defendant for a period of at least three months, and that he would settle for all papers on the tenth of the month following that in which the papers were ordered, and Fox testified that defendant had allowed him an amount for delivering the papers which would be deducted on settlement from the amount due by him, and that in making the delivery of the Sunday papers he had hired Berlin to haul the papers in an automobile transfer; and there was also offered some testimony showing that Berlin had also hauled papers for the person who handled defendant’s publications prior to Fox.

We are of the opiniqn this evidence shows that Fox was nothing more than a purchaser of copies qf the paper published by defendant and that he employed Berlin to deliver his papers, and that it does not indicate that Fox was the agent of defendant, or that Berlin was an employee of defendant; and while it may be that additional évidence could have been offered explaining more in detail the relations of Fox and defendant, we think the question of fact at issue is to be determined on the preponderance of the evidence offered, which clearly warranted the dismissal of plaintiff’s suit.

Now as to the evidence which was offered and not admitted. Plaintiff attempted to prove by a person who formerly handled defendant’s publication, a course of dealing between such person and defendant, which conflicted with the written contract between Fox and defendant, and to show that in the course of defendant’s dealing with such 'person that defendant had employed to haul the papers.

The written contract between Fox and defendant was, of course, not binding on third persons, and if the plaintiff could have established by any evidence which he may have produced that the contract and the relations between Fox and defendant were not as shown by the contract, and the testimony of Fox, but we do not think evidence as to what may have been the relations between other persons and defendant would be relevant, and that the-ruling of the court refusing to admit such evidence was correct.

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


author: ODOM,

text:
    No. 2643
    Second Circuit
    MARSTON v. PATTERSON
    (February 24, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Municipalities—Par. 144, .162, 210, 212.
    Under Sections 1, 4 and 5 of Act 27 of 1915, as amended by Act 107 of 1916, assessments and lien made to pay the costs of paving are not only made against the individuals who own the abutting property but against the property and the owners thereof.
    2. Louisiana Digest — Municipalities — Par. 144, 162, 210, 212.
    Where the sale of a lot abutting on a street to be paved is made during the progress of the work and before it was completed, the lien for the paving under Act 27 of 1915, as amended by Act 107 of 1916, applies against the property and both owners.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo.
    Action by J. G. Marston against W. G. Patterson.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Blanchard, Goldstein & Walker, of Shreveport, ■ attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   ODOM,

J. Plaintiff brings this suit against W. G. Patterson and John W.. Roby to enforce a paving lien.

Plaintiff is the holder and owner of three paving certificates each for the sum of $45.59, aggregating $136.77, dated August 6) 1920, due in two, three and four years from date, all executed by the defendant, W. G. Patterson, and' secured by a lien on certain property in the city of Shreveport.

Plaintiff acquired said certificates in due ■course and before maturity and for value.

This suit is to recover the amount of the certificates with interest and attorney’s fees and for recognition of the paving lien against the property, now owned by the defendant, John W. Roby, and to have said property seized and sold to satisfy said debt.

There was judgment for plaintiff as prayed for and defendants appealed.

OPINION

The defendant, W. G. Patterson, owned certain property in the city of Shreveport. The street in front of the property was paved under authority of the city in 1920 under Act 27 of 1915, as amended by Act 26 of 1916, and as amended also by Act 107 of 1916.

On July 27, 1920, the city council of the city of Shreveport by ordinance formally accepted the paving and ordained:

“That an assessment is thereby made and the same is hereby levied against the hereinafter described properties and the owners thereof, the same being proportionate amounts due by the said abutting properties and the owners thereof for the paving construction upon Dalzell street to Highland avenue, according td the following frontages abutting said street in the city of Shreveport.”

Then follow the names of the owners and the amount due by each.

The ordinance further ¡provides:

“That all of the above amounts shall be due and payable immediately upon the final passage of this ordinance, and if not paid within ten days thereafter that the city of Shreveport or its transferees shall have the power to proceed by suit against the assessed properties and the owners thereof to enforce collection of the amounts of said assessments. * * *”

The ordinance further provides, however, that the property owners shall have the privilege of paying 20% of said amounts within ten days and the balance in four equal annual installments, said installments to be evidenced by promissory notes payable to the order of the city of Shreveport maturing in one, two, three and four years from their date.

It was further provided. that the ordinance should be recorded in the office of the recorder of mortgages of Caddo parish, and:

“That the purpose of said recordation is to assert, publish and maintain the city’s and its transferee’s lien and privilege against said abutting property, owners as provided by law.” . . .

At the time the paving of the street was provided for by the city, Patterson was the owner of the ¡property affected by the lien now sought to be enforced, and from statements made by counsel in brief we infer that he signed a petition asking that the city have the paving done; but during the progress of' the work and before it was completed and accepted by the city he sold it. The property went into the hands of John W. Roby, who .now owns it and is a party to this suit.

When the paving was completed .and accepted by the city it was ascertained that the proportionate amount due for. the paving by the property formerly owned by Patterson, now owned by Roby, was a certain amount. Of this amount Patterson, or someone else, the evidence does. not show who, evidently paid 20% of the amount, for the mayor, on August 6, 1920, issued four certificates, each for the sum of $45.59, denominated:

“SPECIAL PAYING ASSESSMENT' CERTIFICATE.”

Which certificates recite that, in accordance with. Act 27 of 1915; as amended by Act 26' of 1916, and as amended by Act 107 of 1916 and an ordinance of the city of Shreveport of date July 27, 1920, the amounts set forth therein are due by W. G. Patterson on property owned by him fronting on Dalzell street in the city of Shreveport, which property is described, and recites:

“The amount herein certified is secured by lien and privilege on above described property, prior to all other charges except taxes.”

The certificates áre signed by the mayor;

Following each certificate and attached thereto is a promissory note in the following words and figures, to-wit: ■

“Shreveport, La., Aug. 6, 1920.
“On or before Aug. 6, (1921, 1922, 1923 and 1924), -1 promise to pay to ■. the order of the City of Shreveport. $45.59 ■ (Forty= five and 59-100 Dollars), with eight per cent interest per annum . (said interest payable annually as per coupons attached and on surrender of said coupons) from Aug. 6, 1920, and ten per cent on principal and interest if this note is placed in the hands of an attorney for collection after maturity, as per special paving assessment certificate hereto attached.”

(Signed) “W. G. PATTERSON.”

These notes were made and signed in accordance with Section 6 of Act 27 of 1915, which recites:

“As evidence of such deferred payments the property owner shall sign and execute four promissory' notes payable to the municipality, each for twenty per cent of the amount due by him, dated ten days after the (passage of the ordinance accepting the work.”

The notes were duly, paraphed by the secretary-treasurer of the city.

Plaintiff is the holder and owner for value and before maturity of three of said certificates, aggregating $136.77, all past due. He seeks to enforce payment thereof and to have the property subject to the lien sold in default of payment.

The mayor and the city council of the city of Shreveport seem to have followed the letter of the paving laws in all its proceedings.

Patterson, the maker of the notes, defends the suit on the ground that the certificates and notes are not valid for the reason he was not the record owner of the property at the time the paving was accepted and the certificates and notes issued; and Roby, while admitting that he is the present owner of the property, defends on the same ground and, in addition, sets up that his property is not subject to the lien because the assessment was made against the property in the name of Patterson as the owner.

In our opinion, the defense of neither Patterson nor Roby is well founded.

Under Section 1 of Act 27 of 1915, as amended by Act 107 of 1916, municipal authorities of cities, towns and villages are invested with power, under certain conditions, to pave streets—

“and shall have the power to levy and collect special taxes or local assessments on the real estate abutting the street or alley to be improved, for the purpose of defraying the entire cost of said work.”

Section i of Act 27 of 1915 provides that, upon final and satisfactory completion ' of the work, the municipal authorities shall accept the same by ordinance, and—

“provide fqr the assessment of all abutting real estate and railroad tracks and roadbeds in the amounts due by the owners thereof, according to the rule of apportionment stipulated in this act.”

And that—

“a certified copy of such ordinance containing. the assessment shall, within ten days after its passage, be filed for record in the office of the recorder of mortgages in thei parish in which said assessed property is located, and. the same when so filed and recorded shall operate as a lien and privilege in favor of said city or town, or its transferees, against the real estate and railroad tracks therein assessed.”

Section 5 of the act provides that in case the amounts assessed in the ordinance are not paid within ten days—

“the city or towh, or its transferees, shall have the power to proceed by suit against the assessed properties and the owners thereof, to enforce collection of the amounts of said assessments.”

In Section 6 of the act it is provided that:

“As evidence of such deferred payments the property owners shall sign and execute four promissory notes payable to the order of the municipality * * * which notes, when paraphed by the city clerk or secretary to identify them, with the ordinance levying the assessment, shall carry with them in the possession of any owner the lien and privilege above provided.”

(Boldface type ours.)

Such assessments are not made against individuals but against the property and the owners thereof. It does not matter, therefore, in whose name the assessment is made. The abutting property and the owners thereof are bound for the debt and the lien and privilege, follows the property into whatever hands it may pass if the ordinance accepting the paving, fixing the amounts due on the properties and assessing the lien is filed and recorded in the mortgage records of the parish in ten days, as Was done in this case.

At the time the assessment in this case was made Roby was the owner of the property, but the assessment was made in the name of Patterson who, as owner, petitioned for the pavement. It is of no moment who was named as the owner of the property in the ordinancé levying the assessment as the assessment was against the property and the owner thereof, whoever the owner may Have been at the time the assessment was made.

A similar question arose in the case of Pratt vs. Graham Company, Ltd., decided by the Orleans Court of Appeal on March 17, 1919, No. 7451.

In that case it was admitted that at the time the paving was laid and when the certificates were issued the defendant — (

“Was and still is the owner of the property described and the only defense herein set up is that the certificates sued upon are null and void because they were issued in the name of one who was not the owner of the property at the time the paving was done or the certificates issued, the fact being that the certificates in the form of a bill addressed to one A. B. Dennis, one-time owner qf the property but nq longer so.”

And the court held, through Judge St. Paul as its organ, that—

“under the circumstances it is quite immaterial who was described as the owner since it does not appear that anyone has been ^or will be misled or prejudiced by the error.”

In the case at bar it appears that at the time Roby purchased the property he procured the issuance of a certificate of mortgages by the recorder of mortgages which did not show the paving lien, and he contends that to subject his property to the payment thereof would work a hardship and injustice upon him.

But the court can give him no relief in this case on that account.

• The paving assessment was levied by ordinance of the''city and the ordinance was registered in the mortgage records of the parish, all . in strict compliance with the statute. .Whether the recorder’s certificate showed the lien or not the facts are that the pjaving was done, the cost thereof assessed against the property and the ordinance levying' the assessment duly registered.

Aside from this, Roby was- not misled. The certificate of the recorder referred to was made on November 12, 1924, in connection with a sale made by James M. Wiley to Roby on November 13, 1924, of ninety-two 'feet of lot 245 of the Pinehurst subdivision of the city of Shreveport. The. paving' aásessmeht in question was made-against all of lot’ 245 and the west 5. S' feet of lot -246 of that subdivision. More than three years prior- to that time, to-wit,'' May 18, 1921, The Vineyard Construction Company; Inc., sold to the said Roby, James M. Wiley arid Mrs. May C. Mazyck certain portions of the same lot 245 to be used as an alley, and the purchasers, Roby being one of them, as part consideration of .t}ie sale, assumed the payment of the identical • lien which he. now seeks to- defeat.' That -deed is notarial ■' in form’, is signed by Roby and the other purchasers, and reads, in part, as follows:.

“This sale is made for the considératiún ob the sum of one hundred and no-100- dollars, . cash in hand paid, receipt of which is hereby acknowledged, and the assumpsit by the said John W. Roby, and James M. Wiley, and Mrs. May C. Mazyck of an}) , and all paving liens for paving abutting lot 245 and the west half of the alley south of and adjoining same.”

(Boldface type ours.)

In the case of Rosetta Gravel P. & I. Co. vs. Jollisaint, 51 La. Ann. 804, 25 South. 477, the court held, to quote the syllabus:

“The lien and right of pledge resulting from á local assessment for street paving attaches to (property of the abutting proprietor, without reference to the person in whom title is actually vested; and pro-ceeding taken against same for the enforcement of such lien and pledge is one in • rem, notwithstanding the title holder be cited for the purpose of carrying same into effect.”

See Barber Asphalt Paving Co. vs. Watt, 51 La. Ann. 1346, 26 South. 70.

Under the plain letter of the paving statute .and under repeated decisions of the .Supreme Court, the property of Roby, against wliich the assessment was made, is subject to the lien, and if the, certificates and notes representing the same are not paid the property may be sold in satisfaction of the debt.

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


text:
    No. 2185
    Second Circuit
    GOODWIN v. WHEELER
    (February 24, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

      1. Louisiana Digest — Landlord and Tenant — Par. 96.
    The fact that the tenant was indebted to the landlord for rent and that he removed part of his furniture from the leased premises on an order from the landlord to-vacate afforded ground for the writ of provisional seizure under Article 287 of the Code of Practice.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by Miss Corinne Goodwin against Grady C. Wheeler.
    There was judgment for plaintiff and defendant appealed.
    Judgment jiffirmed.
    Joe B. Hamiter, of Shreveport, attorney for plaintiff, appellee.
    Foster, Looney, .Wilkinson & Smith, oi Shreveport, attorneys for. defendant, appellant;
   ODOM, J.

In February, 1922, defendant, Grady C. Wheeler, leased from plaintiff- four; rooms in á dwelling ■ house • in Shreveport at a monthly rental of $40.00. He with his family moved in, carrying with them certain furniture, including a piano. In addition to the monthly rental of $40.00 defendant was to pay for water, gas and electricity used by him. He did not pay promptly. He fell behind with his payments all along, so that on January 1, 1924, he owed $211.87.

Plaintiff brought suit for the amount due coupled with an application for a writ of provisional seizure, which was issued. Under the writ the city marshal seized three art squares, four straight chairs, two rockers, one cook stove, one ice box, one kitchen cabinet, one dining-room table, and one piano . and bench, all then in the leased premises.

Defendant filed a motion to dissolve the seizure on the ground that the property seized was exempt from seizure under any process whatever. Defendant also filed answer, in which he admitted that he owed plaintiff but claimed .that said indebtedness was not due.

The motion to dissolve was set down for trial and testimony adduced. The minutes of the court make no mention of the fact that the case was tried on its merits. However, we find at the close of the trial both plaintiff and defendant agreed that the testimony taken on the trial of the motion to dissolve should be offered in evidence on the main issue. The trial court considered all the evidence and passed on the motion to dissolve along with the merit's of the case, which was proper.

As already stated, the indebtedness is admitted, but defendant claims that the amount was not yet due. That contention arose on' account of an agreement ■ between defendant and Miss Goodwin in September, 1923, to the effect that defendant should pay the past due indebtedness at $20.00 per month; that is, he was -to pay $60.00 per month instead of $40.00-; - the $20.00 to apply on the amount already past due.

But that agreement was not carried out by defendant. He continued to fall behind. He gave checks which were not paid when presented. Plaintiff finally ordered him to vacate the premises, which he did on January 8, 1924, but, before doing so, he removed portions of his furniture.

The fact that he was indebted to plaintiff for rent and that he removed part of his furniture from the leased premises afforded ground for the writ of provisional seizure.

Code of Practice, Article 287.

Defendant's counsel, in brief, suggest that inasmuch as plaintiff ordered defendant to vacate the premises she had no right to seize the furniture when defendant obeyed her order to vacate.

Plaintiff wrote defendant on December 31, 1923, to vacate the premises by January 5, 1924, and stated in the letter that on that date he would be due her $211.87, and that’ if the amount was not paid- she would institute legal proceedings to collect the same. Defendant did not offer to pay the amount but, instead, began to remove his property from the leased premises.

We think plaintiff’s right to provisionally seize the property under the circumstances was fully warranted.

None of the articles seized are exempt under Article 2705 of the. Revised Civil Code, which applies to -cases.).of. .this .kind.

• The lower court gave plaintiff, judgment for the full amount' sued forjo,-and maintained the seizure to the extent, of- $203.23, the amount of rent due. The -,Judgment is in accordance with the ■ law. and the evidence, and is therefore affirmed, with .costs.


text:
    No. 2664.
    Second Circuit
    ARMOND v. T. & P. R. R. CO.
    (February 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)
    (May 23, 1927. Decree of Supreme Court on Application for Writ of Certiorari and Review, Refused Writ Because “Under the facts stated by the Court of Appeal we find no error in the judgment”.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Railroads—Par. 84,
    86.
    Where the engineer and fireman of a train see a mule upon a high embankment, almost on the track, and in dangerous proximity -to it when they were sufficient distance from the mule to avoid the accjdept, it is , clearly their duty to take siich precautions to avoid injuring the animal as were reasonable, with- due regard ■ -to the safety of the train apd.-.its,-passengers.
    Appeal from the Tenth-Judicial District Court of Louisiana, Parishmbf .Natchitoches. Hon. John F.. Stephens:,. Judge.
    Action by J. E. Armond against Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. C. Gunter, of Natchitoches; attorney for plaintiff, appellee.
    Peterman, Dear & Peterman-, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff’s mule was killed by one of defendant’s trains on August 30, 1925. This suit is to recover the value of the mule.

The District Court found that the animal was killed through the negligence of those in charge of the train, and gave plaintiff judgment for $200.00, the value of the mule, and costs. Defendant appealed.

OPINION

The killing of the mule by defendant’s train and its value as found by the District-Court are not disputed; but defendant contends that those in charge of its train at the time were guilty of no fault or negligence and that the railway company is therefore not liable.

The mule was killed at night and was found the next morning, its body lying on the dump about two or two and one-half feet from the track, according to the testimony of the section foreman.

This witness testified also that the dump at that place is about twelve feet wide on the top, that there is a space of about three and one-half feet on each side of the track, and that the dump is “somewhere about eight or nine feet, may be more”, high, at the ¡place where the mule was killed.

Mr. Troup, the engineer in charge of the train at the time, testified that at the time he first saw the mule he had blown the whistle for the crossing, had shut off the steam, and his train was drifting”; that the mule was killed before he reached the crossing; that it was killed something like a half or three-fourths of a mile from the crossing; that he saw the mule after he blew for the crossing; that he went around a curve just before reaching the place where the mule w.as killed and could not see the animal until he got on straight track; and that when he reached straight track so that he- could see, the mule was about two or three poles away, possibly two poles. And he was asked by the court:

“How far did you tell counsel you were away before you saw the mule, didn’t you say three or four poles?”

And he answered:

“I answered, when I got around the straight track I was three or four poles from the bridge, and- the mule was pretty close to the bridge; I can’t tell you how close he was. I just got through whistling when the mule showed up, when I saw him.”

The undisputed testimony is that the' mule was killed thirty feet from the bridge. The telegraph poles are one hun-dred and seventy-six feet apart, so that the engineer, according to one part of his testimony, saw the mule when the train was at least two poles, or three hundred and fifty-two feet from it, and, according to other portions of his testimony, -he was at least three poles, or five hundred and twenty-eight feet, less thirty feet, or four hundred and ninety-eight feet from it.

He says, again, that - the curve is about fifteen car lengths from where the mule was killed and that a car is thirty feet long, which would (place the curve four hundred and fifty feet from where the mule was killed.

He says that when he first saw the mule it was about eight or ten feet, as near as he could tell, from the track, and he does not recall whether it was standing still or not.

W. E. Waite, the fireman, says the mule' was on his side of the track when he saw it; that he was then about three hundred yards from it; that the mule—

“was standing with his front feet off over on the edge of the embankment, with his tail toward the track, and after the engine, or while the engine was passing, he became frightened, and started back in the direction from which the train was coming, and ran, I would judge, twenty-five or thirty feet, wheeled and turned, following us in the direction ,we was going; in wheeling he stuck his head in between the baggage car and the first day coach, and when he did that the vestibule or some other part of the car struck him in the side, knocking or running him against the other mule which in turn knocked him down.”

He says the mule’ stood still until after the engine had passed him and that the engine, . coal car, baggage and mail car had passed him before he was hit.

Accepting the testimony of the section foreman, the engineer and the fireman, all called as witnésses by defendant, as 'true, we are of the opinion that the company, through 'its employees, was negligent.

■As we have already noted, the railroad track at. the place : where the .animal was killed is on an embankment or dump some eight or nine feet high. Both the engineer and the fireman say that the mule, when he was first seen by them, was up on the embankment but not on the track. They both state that as best as they could see it was about eight feet from the track. But considering the undisputed testimony that the crown of the embankment is only twelve feet wide and that there is a space of' not more' than three and a half feet on each side of the track, we conclude that they are mistaken as to the distance the mule was from the rail.

The fireman says that the mule was standing with its front feet over the edge of the dump and with his' hind feet next to the rail. Its hind feet, therefore, must have been very near the rail, possibly at the end of the crossties.

•The nearness of- the animal to the track is also indicated by the testimony of the engineer ■ when- he says, in explanation as to how the mule got hurt, that the engine missed it; and by the testimony of the fireman, who says that when the engine passed the mule it became frightened and wheeled and ran back. ' He does not say that the mule ran uip on the embankment, but says that when it turned to run it stuck its head between two cars and was hit by the vestibule. It was, therefore, very close to the track all the time, and while never on the track it was 'in dangerous proximity thereto.

The mule was not merely on the company’s right of way; it was up on a high embankment, almost on the track. The animal was peen in tha¡t situation by. both the engineer and the fireman when the train was anywhere from three hundred and fifty to four hundred and fifty feét away, according to the engineer, and at approximately twice that distance, according to the testimony of the fireman.

Seeing the animal in dangerous proximity to the track, it was clearly the duty of those in charge of the train to take such precautions to avoid injuring it as were reasonable with due regard to the safety of the train and its passengers.

But the testimony shows that they did absolutely nothing to avoid injuring the animal. When the. animal was seen the engineer had already cut off the steam and the train was “drifting” and going at something like twenty-five miles an hour; it was then not making the usual noise. No stock alarm was sounded, the whistle was not blown (it was blown for the crossing, some distance away), the lights were not flashed on and off as is customary to frighten stock off the track; the air cocks were not open; ■ no noise whatever was made to frighten the animal off the track. ' So noiselessly did the train approach the ■ animal that it did • not become frightened until the engine passed it. The brakes were never applied and no effort at all made to slacken the speed of the train or stop it. The train crew seem to have taken it for granted that the animal would see the approaching train and get out of the way; It is not contended that the train crew, after seeing the animal, could not have frightened it off the track or could not have stopped the train with all safety before reaching the animal.

.Counsel for defendant rely upon the rule which, ■ they, say, is settled in jurisprudence and settled by reason, that when an engineer sees -an animal not in danger standing safely outside the rails he need not stop his train to see what the animal will do.

Counsel have stated the rule too broadly.

They cite Elliott on Railroads, 3rd edition, volume 3, section 720. That work does not support the rule thus stated.

The rule, as we understand it, is that:

“Where animals are not on but merely in the vicinity of the track, it is not necessary to reduce speed if there are no circumstances making it probable that they will come upon the track or be injured, as when they are grazing quietly or manifesting no indication of coming upon the track.”

33 Cyc. 1225, 1226.

According to counsel’s understanding of the rule, if an animal is standing by the side of the track and far enough away so that if it stands still it will not be struck by a passing train, no obligation rests upon those in charge of the train to take any precautions for its safety.

The rule so broadly stated by counsel is sanctioned neither by jurisprudence nor reason.

• The duty of those in charge of a train When animals are seen in close proximity to the. track is stated as follows in 33 Cyc. 1222:

“Where animals are seen on or in dangerous proximity to a railroad track, it is the duty of those in charge of the train to exercise ordinary care to avoid injuring them, and a failure to do so will render the company liable for any injuries occasioned thereby.”

(Boldface type ours.)

And, according to the same work (page 1226), after stating it to be 'the rule that it is not the duty of the engineer to stop his train when animal^ are in the vicinity of the track, it is further stated:

“But such circumstances ' do not relieve those in charge of the train from the duty of maintaining a careful lookout as to their subsequent movements; and if it can safely be done the train should be slowed down or stopped whenever there is apparent danger of injtiry, as where the animal is in dangerous proximity to the tracks * * * or its. escape from the immediate vicinity of the tracks would be difficult or impossible because of the presence 'of fences, embankments or other circumstances, and in such cases the fact that the train could not be stopped after the animal actually got upon the track will not relieve the co'mpany of liability if reasonable care demanded that other precautions should have previously been taken.” ;

(Boldface type ours.)

As to the duty to sound the stock alarm, the same work, page 1227, sa.ys: '

“Ordinarily it is the duty of the engineer to use such precautions to frighten animals as soon as they are discovered on the track, of if' they are in dangerous proximity to the itraok, or the circumstances make it probable that they will come upon it; but if the animal is not on the track and there is no apparent danger, no alarm is necessary.” • . -

(Boldface type ours.)

In an elaborate case note found in 23 A. L. R. 150, 'the' general rule governing such cases is 'stated as follows:

“An engineer need not slacken the speed of his train upon discovering animals near the track, unless there is something to indicate that they may come upon the track, or are in such close proximity thereto that they are likely to be injured.”

(Boldface .type ours.).

In support of the above rule, there are cited cases from Arkansas, Florida, Colorado, Georgia, Idaho, Illinois, Iowa, Michigan, Mississippi, Missouri, Texas, Utah and West Virginia.

According to the above authorities, it may be stated that where an animal is seen by those in charge of the train in such close proximity to the railroad tracks that it is reasonable to apprehend that injury may result in case the animal becomes frightened, as where it is on a high dump or embankment and within three or four feet of the rail, it is their duty to sound the stock alarm to frighten it away and to check the speed of the train and stop it if such can be done without jeopardizing the safety of the train and its passengers in order to avoid injuring the animal. A failure to do so is such negligence as will make the company liable.

A railroad company is liable for injuries to stock due to the negligence of its servants, and the care to be exercised at particular places and on particular occasions must be commensurate with the danger reasonably to be expected.

The mule in this case was close beside the rail on a high dump or embankment; no attempt was made to frighten it; the steam was cut off and the train “flrifted” along the track until the engine passed it; it then became frightened and in its effort to escape it ran back along the edge of the dump and finally turned to go back. When it did so, according to the fireman, it stuck its head between two cars, the vestibule of one of the cars striking it and killing it.

Just such action on the part of the mule was reasonably to be apprehended by those in charge of the train. The train crew had ample opportunity after seeing the mule some three hundred and fifty or four hundred feet away to avoid striking it.

We have not seen fit to discuss the testimony of plaintiff’s witnesses nor to state his theory as to how the mule was killed. We think the testimony of defendant’s witnesses makes out the case against it.

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


text:
    No. 2901
    Second Circuit
    FROST LUMBER INDUSTRIES v. ARRANT & WOOD
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Timber—Par. 15.
    One who cuts timber through error will be made to pay the value of the timber at the stump and not its value in manufactured state.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial. court on matters of fact, namely, that the defendant cut plaintiff’s timber through error and that it was worth $5.00 per thousand at the stump, being clearly correct, is affirmed.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union.

      Action by Frost Lumber Industries, Inc., against Arrant & Wood.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edward Everett, Jr., H. G. Fields, of Farmerville, attorneys for ■ plaintiff, appellee.
    H. E. Dawkins, S. L. Digby; of Farmer-ville, attorneys for defendant, appellant.
   ODOM, J.

We find in the record the following written opinion of the district judge, which we quote in full:

“Plaintiff sues defendant for damages in the sum of twelve hundred and thirty-one dollars and ten cents with fi.ve per cent interest from judicial demand, alleged to have been caused by defendant having cut and removed a lot of timber belonging to plaintiff and standing on plaintiff’s land without plaintiff’s knowledge or consent and converting the same to defendant’s use, which timber is alleged to be of a value of seven hundred and thirty-one dollars and ten cents on the stump, and the further sum of five hundred dollars as damages resulting from defendant's trespassing upon plaintiff’s property.
“The timber alleged to have been cut and removed is estimated in plaintiff’s petition to approximately 47,740 feet, the alleged value of which is declared to be $15.00 per thousand feet; while the other item of damage is set forth in an unspecified and unitemized charge of $500.00 as damage done to land and growing timber.
“In its answer, defendant admits that it cut and removed some timber from plaintiff’s land and belonging to plaintiff, but denies cutting and removing the quantity alleged by plaintiff; and while admitting liability for the timber it did get, it denies any and all other'damage claimed by plaintiff.
“Defendant called Mrs. Carrie Tugwell, individually and as tutrix of the minor, W. T. Tugwell, in warranty as defendant’s vendor of the land defendant was the owner of adjacent to the timber cut by it on plaintiff’s land, and Mrs. Tugwell called in warranty her vendor, Lorenzo Ellis, both of the warrantors answering and denying liability. But as defendant was not being sued for cutting its own timber on its own land but for cutting plaintiff’s timber on plaintiff’s land, there was no ground for calling anyone in warranty. Hence the calls in warranty are annulled and set aside and the warrantors are discharged at the cost of defendant.
“Defendant also files a plea of prescription of one year in bar of plaintiff’s action for the recovery of damages for cutting the timber sued for by plaintiff, and pleads same in bar' of the rights of action of the plaintiff herein, which was referred to the merits.
“It is not alleged specifically in plaintiff’s petition how this damage occurred, but the evidence is to the effect that it occurred from the operations of cutting and logging the timber and a forest fire, but which propositions are not shown. Those operations, it appears from the evidence, occurred in the late summer or early fall of 1924, and this suit was filed November 19, 1925, and citation was served on defendant November 23, 1925. Not one of plaintiff’s witnesses testifies, even approximately, to the date this timber was cut and logged; hence we have only the testimony of defendant’s witnesses to depend upon for proof of that fact.
“Jukes Arrant, a member of defendant partnership, testifying as a witness for defendant, says that the timber was. cut in August or September, 1924. Witness Buck Bilberry testifies that the timber was cut in the month of September and that the forest fire occurred about the las.t of November. Mqnroe Taylor testifies that he was hauling this timber for defendant about November, 1924. He also testifies that the fire occurred the latter ■ part ■ of November, 1924. This evidence shows conclusively that the timber was cut and logged prior to the 19th day oí November) the date of the filing of this suit. Not so, however, as to the value of the timber cut, prescription against an action for the recovery of which only began to run from the date of the discovery of the act of trespass by plaintiff.
“The date of the discovery that the timber had been tut'appears'to be sufficiently proven to have been ■ in December, 1924.
“Witness T. .L. Holloway, agent of plaintiff, testifies that he. made • the discovery on the 19th day of December, 1924, when he went on the land where the timber had stood and noted the fact for the first time that some other than the owner had been cutting it. This witness was. positive as to the date and gave a sufficient reason for his knowing it to be true.' His testimony is opposed only by the old negro, Buck Bilberry, who went with witness Halloway onto the land the day of the discovery and who fixed the date along about the first of November, 1924. Holloway is corroborated while Bilberry is not. Besides, considering the relative' intelligence of the two witnessed, the court considers that Holloway’s statement is more believable than that of Bilberry. Hence the court concludes that plaintiff’s suit, insofar as the value of the timber is concerned, has been brought within the prescribed time and is not barred by the prescription of one year.
“No damage could be awarded on account of the' fire getting out in the timber for the reason that there is absolutely no evidence to show that the defendant or any of its agents, laborers or employees started or was responsible for the starting of the fire. Furthermore, even if the evidence did show that there was damage sustained on this score, it is so vague and indefinite and uncertain in manner and amount as to be wholly insufficient to sustain any intelligent judgment. This, then, reduces the issues to two questions, viz.:, the nurm her of feet of timber cut and carried off and the value of that timber to plaintiff in the form of stumpage.
“Defendant does not deny liability in toto, but does deny owing the amount claimed for the timber. In his testimony witness Jules Arrant, one of the defendant partnership, appears to admit that he cut more of plaintiff’s timber than plaintiff claims compensation for, as the court understands his testimony, whether he so intended or not. He states that he cut all of the timber that had been cut off the land or timber involved in this suit. (Page 65 of testimony.) When asked by plaintiff’s counsel how much timber had been cut from the eighty acres included in this suit, he answered 52,000 feet. (Testimony, page 57.) And in another place in his testimony (page 86) it appears that he estimates the' timber he cut at approximately four thousand feet only. No other witness of defendant testifies to the quantity of timber cut by defendant." And this, too, notwithstanding it was an easy matter to have run out the lines of defendant’s thirty acres and count the number of trees cut outside of these lines and estimate the stumpage, as appears to have been done by plaintiff.
“On the contrary, plaintiff put two witnesses on, the stand who testified to the quantum of the stumpage cut by defendant. T. L. Holloway testifies that he counted the trees and made an estimate of the number of feet cut, and the "whole amounted to forty-eight thousand feet. Witness W. F. Addison, when asked, ‘From your estimate, how much timber was cut and removed from all the land lying north and east of Meridian Creek?’ answered, ‘All the- timber lying east and north of Meridian Creek was a total of 22,500 feet.’ He • was then asked if this included the high hills and answered, ‘There was a total of 14,500 feet cut.’ These two stater ments or estimates make the matter about as obscure and uncertain as could well be stated. And strange as it may seem, counsel for plaintiff leave the matter' that way, and proceed to question the witness about the value of the timber. From the subsequent answers of this witness to questions propounded by counsel for defendant, it appears that the total estimate is"' 22,500 feet. These are the only witnesses' who testify to the quantity of timber cut by defendant, and from their testimony ' the coúrt considers the quantity proven to be twenty-two thousand five hundred feet.
“Now, as to its value at the stump. The testimony varies all the way from two dollars per thousand feet to eight dollars per thousand feet. The lower estimates are made by the defendant, while the higher estimates are made by witnesses for plaintiff. On the part of plaintiff witness Harrell testified that the timber at the stump was worth five or six dollars, per thousand and that medium virgin pine was worth four or five dollars per thousand; and witness Addison said it was worth-'five dollars at the stump and if sawed into logs and delivered on the train it would be Worth nine to ten dollars per thousand. Taking these estimates as a guide and adopting an average to go by, the court considers that five dollars per thousand feet is what defendant should pay plaintiff for the timber cut and converted to defendant’s own use.
“It is evident from the evidence in this case that defendant did not intentionally trespass on plaintiff’s property' and knowingly appropriate it to his own use, and if this be true defendant should not be penalized and made to pay a fancy price for the timber cut and removed. But at the same time plaintiff should have the full value of the timber as it stood on the land before it was cut. The price allowed I believe is the full value.
“It is therefore ordered that the plaintiff have judgment against defendant, Arrant & Wood, and J. Y. Arrant and George P. Wood in solido, for the sum of one hundred and twelve dollars and fifty cents, with five per cent interest thereon from judicial demand until paid and for all costs of this suit.”

Counsel for appellant point out no error in this opinion, except as to the amount, allowed for the timber cut and removed. They argue that the defendant was in bad faith and should pay for the timber in its manufactured state. We have carefully read the testimony and conclude, as did the district judge, that defendant cut the timber through error. The record utterly fails to establish bad faith on 'the part of defendant.

As we find no error in the opinion rendered by the district judge, we adopt and make it our own.

Judgment affirmed; defendant to. pay all costs.


text:
    No. 2212
    Second Circuit
    ALLEN MANUFACTURING CO. v. PEOPLES STATE BANK
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Banks and Banking —Par. 35, 36, 39.
    The purchase of building material by the president of a bank without authority of the directors, for his personal use, was outside of his official sphere and did not bind the bank.
    2. Louisiana Digest — Banks and Banking —Par. 35, 36, 39.
    The fact that one is president of a bank does not give him any powers to bind the bank for the purchase of building material which Was used for his individual account.

      3. Louisiana Digest — Banks and Banking —Par. 39; Corporations — Par. 180.
    One who sells building material presumably to a bank through its president cannot claim that he relied on the authority of the president to bind the bank for the payment of the building material, because banks have no use for building material.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W1 Jones, Jr., Judge.
    Action by Allen Manufacturing Company, Ltd., against Peoples State Bank.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. M. Cagle, of Coushatta, attorney for plaintiff, appellant.
    S. R. Thomas, of Coushatta, attorney for defendant, appellee.
   ODOM, J.

This is a suit to recover $180.33 for goods and supplies alleged to have been sold and delivered to the defendant bank.

The defense is that the goods were not ordered by or for the bank but by its president for his own use and benefit and that the bank did not receive or use the goods.

There was judgment rejecting plaintiff's demand and it has appealed.

OPINION

The facts, a,s disclosed by the record, are that in May, 1923, someone called plaintiff over the telephone and ordered shipped to the defendant bank some building material, including plate-glass, beaver-'' board, three pairs of butts, three locks, and three cylinder garage door locks.

At the time the order was made plaintiff did not know who was talking over the telephone, but it is evident from subsequent correspondence that the goods were . ordered by I. .C. Cole, who was at that ' time president of the defendant bank.

The goods were shipped to the bank and received presumably by Cole. The testimony establishes beyond question that Cole took and used the material in building a garage for himself.

•Cole was not authorized by the board of-directors of the bank to purchase the goods. He had no authority under the general law, or under the charter or bylaws of the bank, to make such a purchase-for the bank. The bank had no use for the material, did not get it or use it, and none of the officers or directors of the bank knew anything of the purchase until several months later, after Cole ' had severed his connection with the bank. When ,the officers and directors of the bank learned of the transaction, they promptly repudiated it.

It is proved beyond question that Cole had no authority to make such purchase for the bank and that the purchase was. not ratified by the board of directors or other officers of the bank, and it is practically conceded by counsel for plaintiff that such a transaction is beyond the general authority conferred upon bank presidents.

But plaintiff sought to show that Cole, by acquiescence of the board of directors ! of the bank, was general manager thereof and was so held out to be by the board, and that the public generally was led to believe that any acts of his in the name of the bank would be approved by the board .of directors.

But plaintiff utterly failed to show this. There is not a syllable of testimony showing that Cole exercised any authority beyond that usually exercised by bank presidents.

A bank may become bound by the unlawful arid ultra vires acts of its president under certain circumstances, as, for instance, where it accepts the benefits of his acts, or has expressly or impliedly held out that the acts were within the scoipe of his authority; or where the directors have acquiesced in a particular course of conduct of which his acts are a part.

Such was not done by the bank or its directors in this case.

Counsel, in brief, quotes as follows from the case of Citizens Bank, etc., vs. Thornton, 174 Fed. 752:

“A bank which has intrusted the conduct of its affairs to its president, such conduct being within the range of the authority customarily given to such officer, is bound to one Who has parted with his money in good faith reliance on the authority so .exercised, whatever may be the limitations which the by-laws or resolutions of the board of directors in fact placed on it, of which he has no knowledge.”

No fault can be found in the rule thus laid down. But that rule is fatal to plaintiff’s contentions, for two reasons:

First, because the conduct of Cole in the purchase alleged, to have been for the use. of the bank, was not “within the range of the authority customarily given to such officer”, and

Second, because -the plaintiff did . not part with its goods “in reliance on the authority so exercised”.

Plaintiff knew, or should have known, that the purchase of building material is no part of the banking business. With such knowledge, plaintiff should have inquired into Cole’s authority to make the purchase, especially in view of the fact that there were three garage locks on the bill.

Even if it were true, and it is riot, that the public was led to believe that Cole was permitted to exercise authorities beyond those usually exercised by bank presidents, that would not avail (plaintiff, for the reason that plaintiff did not deal with Cole in reliance on such authority.

When the goods were sold, plaintiff did not know Cole, did not know the bank officials, did not even know who was talking over the telephone, and was therefore not misled.

A chartered bank is responsible for the acts of its officers within the scope of their apparent authority. To render a bank responsible for the acts of its officers, the act must be done for the bank, and if the officer goes beyond the range of his duties and does an unlawful act, the bank is not liable, unless the other party believed and had good reasons to believe that the officer was acting within the scope of his authority.

In this case, Cole did not act for the bank and there was nothing in the nature of the transaction to lead plaintiff. to believe that he was acting within the scope of his ’ authority. On the contrary, the very nature of the transaction was such as to put plaintiff on. guard. The party who ordered the goods did not disclose his name, his official capacity, or suggest his authority to bind the bank. The goods were not such as are ordinarily used in the course of banking.

Counsel for plaintiff cites in brief the following common law authorities:

Corpus Juris, volume 7, page 739.

5 Cyc., page 471.

Marshall on Corporations, page 281, and 790.

All these authorities, in view of the testimony in this record, are against plaintiff’s contention.

For instance, he cites 5 Cyc. 471, where the rule as to the cashier’s authority is thus stated:

“His conduct outside of his official sphere which is not criminal or contrary to public policy, if known and accepted by the bank, is binding thereon, and, even though contrary to law if done by authority of the directors it is maintained that the bank is bound.”

The facts disclose that the conduct of Cole, the president of the bank, was outside his official sphere, was not known or accepted by the bank, and his act was not done by authority of the directors.

Counsel for plaintiff also cites the case of Robert Gair Co. vs. Columbia Rice Packing Co., 124 La. 194, 50 South. 8.

That case is also against him. The third paragraph of the syllabus reads as follows:

“Persons dealing with the president of a corporation in the usual manner and within the scope of the powers which the president had been accustomed to exercise with the assent of the directors, though in ultra vires of the corporation, may assume that he had been actually invested with such powers.”

. The corporate powers of the bank were, by its charter, vested in a board of directors. The very fact that Cole was president did not imply that he had any greater powers to do. a special act than^ any other director.

Reed vs. Powell, 11 Rob. 98.

Taylor vs. Vossburg Mineral Springs Co., Ltd., 128 La. 364, 54 South. 907.

Brewing Co. vs. Canton, 118 La. 823, 43 South. 454.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.


text:
    No. 2946
    Second Circuit
    AVANT v. HODGE
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Mortgages—Par. 120; Bills and Notes — Par. 186.
    ' Payment by the maker of a note who borrows money from a third person operates as a discharge of the obligation and the mortgage securing the note is thereby extinguished under Article 3252 of the Civil Code.
    2. Louisiana Digest — Mortgages—Par. 120, 132.
    A mortgage which has been extinguished by the (payment of the obligation, although it has not been cancelled on the records, cannot be revived or reinstated by a holder who came into possession of the note after it was paid.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by J. L. Avant, et als., against Dr. Wess Hodge, et als.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed.
    H. G. Fields, of Farmerville, attorney for plaintiffs, appellees.
    H. E. Dawkins, of Farmerville, attorneys for defendants, appellants.
   ODOM, J.

This is a suit to cancel a vendor’s mortgage operating against the south half of the southeast quarter of Section thirty-two, T'ownship nineteen north, Range one east, in Union (parish, Louisiana, brought by R. J. Weems, the present owner of the land, and J. L. Avant, who sold the land to Weems under warranty.

Plaintiffs allege that the note for $300.00, given to represent part of the purchase price of the land, has been (paid by the maker but that the maker failed to have the mortgage cancelled.

The suit is against Doctor Wess Hodge, who claims to own the note, and against the clerk of the court and ex-officio recorder.

The clerk and ex-officio recorder answered that he had no interest in the matter, but could not cancel the mortgage without the production of the note or proof of its payment.

Hodge answered that J. A. Poston, the maker of the note, had at one time become indebted to the Ouachita National Bank or the Citizens National Bank of Monroe and that he, Hodge, had endorsed Poston’s note to the bank and that the note in question was pledged by Poston as collateral to the bank and that the bank called upon him, Hodge, 'to pay the debt; that he paid Poston’s debt to the bank, and avers:

“That he acquired the same (the mortgage note in question which he claims was pledged by Poston as collateral) from the Ouachita National Bank and the Citizens National Bank by reason of having paid the note of J. A. Poston upon which he was surety and endorser, and that he is the owner of the said note (the note in question) and has a right to the ownership of the same.”

He especially alleges that said note was never paid by Poston, Avant, Weems, or anyone else, and that he had possession of said note, but that the same was lost or mislaid by him and that he had advertised its loss as the law provides.

There was judgment ordering cancellation of the mortgage, and Hodge has appealed.

OPINION

On November 27, 1918, Forest Hendrix sold to J. A. Poston the south half of the southeast quarter of Section thirty-two, Township nineteen north, Range one east, in Union parish, Louisiana, for a consideration of $960.00, $60.00 of the amount being paid in cash and the balance of the price was represented by two notes, one for $300.00, due October 10, 1919, and One. for $600.00, due October 10, 1920, both secured by vendor’s lien on the property sold.

The note for $600.00 was presented for cancellation and the recorder of mortgages cancelled the mortgage to that extent; but the note for $300.00 was never presented for cancellation. This is the note in question. Plaintiffs allege that this note has been paid, and sue to have the mortgage cancelled in full.

As stated, the $300.00 mortgage note was given to represent a portion of the (purchase • price of the land which Poston purchased from Forest Hendrix. According to the recitals in the deed and mortgage, the note was made payable to Poston’s order and by him endorsed in blank, the mortgage running in favor of the vendor or any future holder of the note.

Just what disposition was made of the note when the sale was closed is not disclosed by . the record. Hendrix being the vendor of the land (is presumed to have gotten possession o'f the note, but the record is silent on that point. Poston is dead and Hendrix was not called as a witness. But the testimony discloses that on November 29, 1918, two days after the execution of the note, J. A. Poston, the maker thereof, carried it to the Citizens National Bank of Monroe, which bank cashed it for him. The note was then endorsed by Avant Brothers. Hendrix had nothing to do with this transaction. It is probable that Poston, then or later, paid the cash to Hendrix. At any rate, Hendrix dropped out of the transaction entirely.

The records of the bank show that on October 10, 1919, the day the note fell due, someone made a payment thereon of $155.00, and that on November 3 following the balance due on the note, $166.13, including accrued interest, was paid to the bank, and that thereupon the note was delivered by the bank by someone, the testimony not disclosing to whom. Mr. Morton, who handled the transaction for the bank, testified that the final payment was made after the maturity of the note, but he has no recollection whether the note was marked paid or not, but that the custom of the officers of the bank was to mark all notes paid unless especially requested not to do so. But he testified that the note, was ©aid and not transferred. He had no recollection as to who paid the' note, but he said that the bank held the note not as collateral but as a principal obligation. In other w'ords, that his bank cashed the note.

While there is some conflict in the testimony on that point, we think this mortgage note went into the hands of the defendant, Dr. Hodge, after it left the bank. The testimony does not, however, warrant the holding that the bank transferred or even delivered the note to him. The bank officials have no recollection that Dr. Hodge was present when the note was paid, although Dr. Hodge and one other witness say he was present. But whether he was present or not, the fact is that the note wá§ owned by the bank and was paid in full. The bank officials say that Poston, the debtor, paid it. Hodge says he paid it. But his testimony as a whole does not show that. On the contrary, it shows that Hodge lo.aned Poston the money with which to make the last payment and took Poston’s note for something over three hundred and seventy dollars to cover Poston’s indebtedness to him for the amount he advanced him on this transaction and a balance due on an open account. Dr. Hodge was asked:

“What, if anything, ‘ did you take from Mr. Poston for the amount he owed you and the one hundred and sixty ($160.00) dollars that you paid for this three-hundred-dollar ($300.00) note?”

And he said:

“Took a note from Mr. Poston for three hundred and seventy ($370. — ) some odd dollars; that was the whole thing that he owed me for the amount he owed me and what I paid the Ouachita National Bank.”

And, again, Dr. Hodge says:

“I took Mr. Poston’s note for the amount he owed me, for the amount I paid on the note, the land note, and for an additional amount that he owed me on an account.”

The amount, therefore, that was advanced by Dr. Hodge was either advanced to or for Poston in order that his debt to the bank might be paid in full, and it was paid in full. What happened, we think, is that Dr. Hodge loaned Poston the money to make the final payment on this mortgage note and that when it was paid the bank delivered the note to Poston, who later turned it over to Hodge to be held by him as collateral, for Dr. Hodge says:

“He gave me this chattel mortgage and three hundred ($300.00) dollars mortgage to take up that and to take up the balance that he owed me at the store.”

From this it is clear that the mortgage note when paid at the bank went into the hands of Poston, the obligor. When it was paid by Poston and delivered to him it became a dead piece of paper. The obligation evidenced thereby had been paid in full and was extinguished. The note was given by Poston as evidence of a particular debt, part of the purchase price of land. The bank cashed the note and became the owner of it. The note was never used by Poston nor held by the bank as collateral. The debt due by Poston, as evidenced by the note, was the property of the bank and payment by Poston to the bank satisfied the debt and the note and mortgage were extinguished.

“Hence it happens that in all cases where the principal debt is extinguished, the mortgage disappears with it.”

Civil Code, Art. 3252.

Poston could not, after paying the note, reissue. It.

When a mortgage note is not for a specific debt but for future use and • in favor of any future holder, the note may be reissued by the maker and used as collateral and the accessory right of mortgage preserved intact; but—

“the rule is well settled, at least in the jurisprudence of this state, that when a mortgage note is given for a specific debt to a particular creditor, payment qf the debt extinguishes the mortgage and a reissue of the note will not revive or reinstate the mortgage.”

Mente & Co. vs. Levy, 160 La. 496, 107 South. 318.

“When the mortgage is for a specific debt, payment extinguishes the debt and mortgage, and the subsequent issue of the note will not revive the mortgage.”

Succession of Phillips, 49 La. Ann. 1019, 22 South. 202.

In Pons vs. Yazoo & M. V. R. R. Co., 131 La. 313, 59 South. 721, it was. held that matured paper cannot be reissued after payment.

Of course, the bank could have transferred the note to Hodge, but that was not done. Hodge does not claim that the note was transferred to him.

Lastly, it is argued by counsel for Dr. Hodge that upon payment by him of the balance due on the note to the bank he became legally subrogated to the rights of the bank by virtue of such payment, the bank’s claim being preferred to his own under Article 2161 of the Civil Code.

Counsel’s position might be well taken if Hodge had in fact paid the bank and had taken up the note; but, as already stated, Hodge did not pay the bank but merely loaned Poston the money with which to make the payment, and instead of his taking up the note the note went back into the hands of Poston, the maker and obligor.

“Where the maker of a note borrows money from a third person with which he pays the note, it will operate as a payment unless there is a clear intent that it should operate as a purchase and not as a payment.”

8 Corpus Juris 590.

The lower court held that the note had been paid, the obligation discharged, and ordered the mortgage cancelled.

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


text:
    No. 2279
    Second Circuit
    HUTCHINSON BROS. v. JONES, JR.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — ¡Sequestration — Par. 30.
    The adverse party not having given notice that he claimed that the bond furnished to secure a writ of sequestration was insufficient as to form or substance, and the plaintiff having had no opportunity to cure the irregularities or file a new bond as provided in Act 112 of 1916, it was error for the trial judge to dissolve the writ on account of the irregularities in the bond.
    Appeal from the T'enth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. E'. St. Anne Prudhomme, Special Judge.
    Action by Hutchinson Brothers against James W. Jones, Jr.
    There was judgment for defendant and plaintiff appealed.
    Judgment dissolving writ of sequestration set aside and case remanded to be proceeded with According to law.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    J. W. Jones, Jr., of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit to recover an alleged balance due on the purchase price of a piano which it had sold to defendant, and alleging that it had a vendor’s lien on the said piano it asked for an order of sequestration. The order for the writ was signed by the clerk and the amount of the bond was fixed at $300.00. Plaintiff executed the bond and the writ issued. Defendant filed a motion to dissolve the writ on the 'grounds:

First: That the bond is made payable to defendant and not to the clerk as the law directs.
Second: That no amount is written into the bond.
Third: That there was no affidavit by either principal or surety as to. solvency as the law directs; and
Fourth: That no privilege existed and that the allegations made to secure the writ were false.

There was judgment in the lower court sustaining the motion to dissolve the writ, from which plaintiff has appealed.

OPINION

Conceding that the bond filed by plaintiff is open to the objections urged by defendant, it does not follow that the writ should have been dissolved under the circumstances disclosed by the record.

Section 2 of Act 112 of 1916 provides:

"That whenever any litigant in this state shall have furnished in connection with any judicial proceedings a bond and surety, and the said bond is insufficient in amount or incorrect by reason of errors or omissions therein, such litigant shall have the right to correct such insufficiency, error or omission in the court of original jurisdiction, and to furnish new, or additional bond and surety conditioned according to law; * * *”

Section 3 provides that this right shall be exercised as follows:

“The party desiring to furnish such new or such supplemental or additional bonds shall have the right so to do at any time prior to judgment; if the adverse party or any other party in interest shall cause to be served upon him through the proper officer for service a notice that such adverse party or the party in interest claims that a bond furnished in the proceedings to which he is a party or in which he has an interest is insufficient either as to form or substance or of the solvency, or because of the pecuniary insufficiency of the surety or sureties thereon, the said party who has furnished such bond shall have the right within two days, exclusive of Sundays, legal holidays and half holidays, to furnish a new bond, or supplemental bond, or additional bond, above referred to. * * *”

The provisions of the above act were not invoked by defendant, appellee, to have the errors and omissions of the bond corrected or a new bond given. Defendant served no notice in any manner upon the plaintiff that he claimed that the bond, filed was insufficient either as to form or substance or of the solvency of the surety thereon.

While the evidence taken on the motion to dissolve is not in the record, if any was taken, it was stated by counsel for plaintiff, appellant, in argument before this court and in brief, and his statement is not disputed, that he did not know that a motion to dissolve had been filed until the day on which the motion was set down for trial, when the special judge sent a deputy sheriff to his office to notify him to go to court for the trial of the motion. When he entered the courtroom he protested against an immediate trial of the motion on the ground that he had not. seen the record and had had no opportunity to inspect it; as' he was informed that it had up to that time been in ' the possession of the defendant. The trial judge postponed further proceedings until 2 o’clock of the same day, at which time the trial was proceeded with and judgment rendered dissolving the writ.

Counsel, in brief, state- that when the motion was called for trial he asked the ■court for time in which to cure the omission and irregularities complained of or to file another bond, which request was denied by the court.

The adverse party not having given notice that he claimed that the bond furnished to secure a writ of sequestration was insufficient as to form or substance, and the plaintiff having had no opportunity to -cure the irregularities or file a new bond as provided in Act 112 of 1916, it was error for the trial judge to dissolve the writ on account of the irregularities in the bond.'

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from, dissolving the writ of sequestration on account of irregularities in. the bond, be set aside; and it is further ordered that the case be remanded to the District Court and reinstated on the docket to be proceeded with according to law.

Costs of this appeal to be paid' by appellee.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    COLT CO. v. GARMAN
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 222, 236.
    When a written contract is silent as to what use will be made of the article sold, parol proof under the allegations may be introduced to show what use was to be made of the article sold.
    2. Louisiana Digest — Evidence—Par. 349; Sales — Par. 152, 160.
    Where the uncontradicted evidence shows that an acetylene gas generator sold for the purpose of cooking would not cook, the purchaser will not be required to pay for it.
    Appeal from the District Court, Parish of Jefferson Davis. Hon. Thomas F. Porter, Judge.
    Action by J. B. Colt Company against I. Y. Garman.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Miller & Miller, of Jennings, attorneys for plaintiff, appellant.
    John B. Fournet, of Jennings, attorney for defendant, appellee.
   ELLIOTT, J.

Appeal from the District Court, Parish of Jefferson- Davis; Thomas F. Porter, Judge-. Suit to. compel payment of the contract price of an acetylene' gas generator and fixtures, sold for the purpose of being used in cooking.

J. B. Colt Company sold an acetylene gas generator and fixtures to I. V. Garman for the price and sum of $350.00. The machine above referred to is spoken of by the plaintiff in a letter addressed to defendant, of date October 15, 1924, acknowledging receipt of his order as a Colt Carbide Lighting Plant. This suit is to compel Garman to pay the price stipulated in the order which he signed in which he agreed to buy it. Various defenses are urged by defendant, the principal one being that the machine was sold to him for the purpose of being used to cook with, like a stove or range, and that it would not serve the purpose for which it was sold. The trial judge, after hearing the evidence and stating reasons therefor, rendered judgment rejecting plaintiff’s demand. The plaintiff appealed. When defendant offered parol evidence for the purpose of showing that the machine had been sold him for the purpose of being used to cook with, plaintiff objected on the ground that parol evidence was not admissible for such a purpose, that such evidence was beyond, in addition to and contrary to the written order which defendant had signed and which the plaintiff had accepted. The district judge overruled the objection and heard the evidence and plaintiff urges that the ruling was erroneous. We think the ruling was correct. The contract sued on is silent as to the 'purpose for which the object was sold. In such a situation, when the written contract is silent and says nothing on the subject, then parol evidence may he introduced for the purpose of supporting an allegation that the thing was sold for the purpose of being used to cook with, etc.

The contract sued on does not expressly say what the thing is, what it is called or good for, nor what it was sold for the purpose of doing, but mention is made in the contract of carbide, generators, burners, stoves, globes; from which we assume that it must be an instrument or thing intended for cooking or lighting, or both. I. J. B. Colt Company vs. Seal, 4 La. App. 618, the machine sold was a lighting plant for use in lighting a dwelling. In this case, according to the evidence, the machine in question was sold for the purpose of being used to cook with as a stove or range is used. The uncontradicted evidence is that, after due trial in defendant’s restaurant, it would not cook. Such being the case, defendant should not be required to pay for it, as it will not serve the purpose for which it was sold. The judgment appealed from is correct. Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


text:
    No. -
    First Circuit
    SHIELDS v. LEESVILLE
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 724.
    Where the record is incomplete, not show, ing that citation of appeal or petition or order of appeal were served on the appellee, the case will be remanded for the record to be completed or citation made if not made before.
    Appeal from the District Court, Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by Belmont S. Shields against Town of Leesville.
    There was judgment for defendant and plaintiff appealed.
    Case remanded to complete record or make citation of appeal.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellant.
    A. B. Cavanaugh, of Leesville, attorney for defendant, appellee.
   ELLIOTT, J.

Suit contesting the election of a parish printer, on the ground that he was not elected within the time provided by the law. Act 141 of 1912, Section 22, (Amd. Act 134 of 1920).

The Town of Leesville, appellee, moves the dismissal of this appeal on the ground that no citation of appeal has issued and that no citation, petition or order of appeal has been served on appellee.

' Appellant by his counsel, answering the motion, alleges that he personally knows that there was a citation and that service of the petition and citation was made. That the omission of the documents from the record was unknown to him or his client for the reason that they had no opportunity to view the record before the morning on which the motion to dismiss was filed. That the missing documents can be secured if appellant be given an opportunity to do so and placed in the record. Appellant prays for permission and opportunity to complete the record.

The answer to the motion is not verified in any way, but it is signed by counsel. The record shows that an appeal was taken by the plaintiff and appellant and citation prayed for. There is an order granting the appeal, but it does not appear that any citation issued and, of course, there is no return showing service.

As plaintiff’s counsel alleges that he personally knows that there was a citation and service and as citation and service is prayed for, we will remand the case in order that the record if, in fact, incomplete, may be completed and the completed record returned into this court at Lake Charles on or before May *14, 1924. If citation was not, in fact, issued and served on appellee, as declared in the answer to the motion, the case is remanded in order that citation of appeal may be served or prayed for.