text:
    No. 13,602.
    Mrs. Ursules Gagneaux vs. L. C. Desonier.
    Syllabus.
    1. It is essentially necessary for the existence of an appeal that there should bo a judicial order granting it. The existence of such an order is a jurisdictional fact. Neither direct consent of parties nor waiver can dispense with it. Courts will, e® officio, notice the want of such an order, and of their own motion dismiss the appeal.

      2. A motion oí counsel to fix the amount of bond to be furnished in a particular ease for a suspensive appeal is not equivalent to a motion for an appeal, nor is the action of the court fixing the amount on such application equivalent to “an order of appeal.”
    PPEAL from the Mary — Allen, J. Twenty-Third Judicial District, Parish of St.

      Foster, Milling & Sanders for Plaintiff, Appellee.

      Don Caffery & Son and J. Sully Martel for Defendant, Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

Appellant resists the motion made by the plaintiff to dismiss the appeal for the reason that no order of appeal had been granted in the case, and no bond furnished, claiming that if such grounds were ever well founded or available, they had been abandoned by failure of the appellee to raise the objections within three days.

In support of this position he refers the court to Murray vs. Bacon, 7 N. S. 271; Temple vs. Marshal, 11 Ann. 613; Kohn vs. Davidson, 23 Ann. 467; Francis vs. Lavine, 26 Ann. 312; Holbrook vs. Holbrook, 32 Ann. 14; Hall vs. Nevill, 32 Ann. 326; Succession of Chamburg, 34 Ann. 25; Webb vs. Keller, 39 Ann. 55; Long vs. Key, 44 Ann. 309; State vs. Callac, 45 Ann. 27; Naghten vs. Naghten, 48 Ann. 769; Mutual Life Insurance Company vs. Houchins, 52 Ann. 1139.

To these may be added O’Reilly vs. McLeod, 2nd Ann. 138, and Walker vs. Sauvinet, 27 Ann. 314.

The minutes of the court show the following entries:

Monday, May 28, 1900.
Court met in regular session; Hon A. O. Allen, judge, presiding.
No. 10,320, Mrs. Hrsulines Gagneaux vs. Louis O. Desonier.
In above case judgment read and signed, and in this case defendant’s counsel asked the court to fix the amount of bond for a suspensive appeal, which matter was taken under advisement by the court.
Monday, June 4,'1900.
Court met in regular session; Hon. A. C. Allen, judge, 'presiding.
No. 10,320, Mrs. Ursules Gagneaux vs. Louis O. Desonier.
In this case defendant’s counsel requested the court to fix the amount of the bond necessary for the suspensive appeal.
Tuesday, June 5, 1900.
Court met in regular session; Honorable A. C. Allen, judge, presid- • ing.
No. 10,320, Mrs. Ursules Gagneaux vs. Louis C. Desonier.
Above ease suspensive appeal bond fixed at one thousand dollars.
The following instrument was received and filed in the District Court on June 25, 1900.
Suspensive appeal bond.
State of Louisiana, Twenty-Third Judicial District Court, Parish of St. Mary.
Mrs. Ursules Gagneaux vs.
Louis C. Desonier.
Know all men by these presents:
That we, L. C. Desonier, as principal, and B. F. Hollman, T. J. Dumesnil and E. Provost, residing in the parish aforesaid, as surety, are held and firmly bound unto clerk of said court in the sum of one thousand dollars ($1,000.00) for the payment whereof well and truly to be made we bind ourselves in solido.
Subscribed and dated at Franklin, this 8th day of June, 1900.
Now the condition of the foregoing obligation is such that whereas the said principal has obtained an order for a suspensive appeal from the judgment rendered by said-District Court on the-day of-, 189 , to the Honorable-of the State of Louisiana, returnable according to law; now this bond is given as surety that said principal, as appellant, shall prosecute the said appeal, and that---shall satisfy whatever judgment may be rendered against -or that the same shall be satisfied by the proceeds of the sale of-estate real or personal, if-he be cast in said appeal otherwise that the said-shall be liable in his place.
(Signed) B. F. Hollman, John T. Dumesnil, Ernest Prevost.
Surety sworn says that over and above all his debts and legal exemption he is worth, in property liable to execution, the full amount of said bond.
Sworn to and subscribed before me this 8th day of June, 1900.
(Signed) L. A. Mendale, Justice of the Peace.
Received and filed June 25, 1900.
(Signed) J. H. Loret, Clerk.

We have examined the decisions referred to by appellant. Most of them declare that the defects in orders of appeal, or in bonds of appeal, which if not objected to within three days, are to be abandoned or waived, are irregularities or defects in orders of appeal actually granted or in bonds actually furnished. They do not declare that objections that “no order” of appeal was granted, or that no bond was furnished, have to be made within three days, and if not so made will be considered abandoned or waived. Murray vs. Bacon, 7 U. S. 271; O’Rielly vs. McLeod 2 Ann. 138; Temple vs. Marshal, 11 Ann. 613; Walker vs. Sauvinet, 27 Ann. 314; State vs. Callao, 45 Ann. 27, and Webb vs. Keller 39 Ann. 55, are, however, cases where expressions to that effect will be found. These eases all refer to Murray vs. Bacon as the original authority for such a declaration. All that the court said in that ease was that “the appellee had moved to dismiss the appeal for an irregularity in the manner of bringing it up. That this motion came too late. The Code of Practice excluded all the answers except those which pray for a confirmation of a judgment if not put in within three days after the record was filed in the Supreme Court.”

It will be noted that the court does not state what the objection was which was made, and that it refers to it as directed at an “irregularity in the manner of bringing the appeal up.” It does not pretend to exclude objections of a jurisdictional character which it would be the right or duty of the court to notice ex officio and to dismiss the appeal of its own motion.

The first ease on the subject following that of Murray vs. Bacon was that of O'Rielly vs. McLeod, 2 Ann. 138, where the objection urged was declared to be an “informality” in the order of appeal and the appeal bond. Ffot only was the objection one aimed at a mere irregularity, but the appellee was not simply silent. I-Ie had acted affirmatively in support of the appeal by having the case once “set for trial” and later on caused it to be continued; in other words, an element of estoppel or active acquiescence entered additionally as a factor in the determination of the question.

That the decisions in the two' cases cited did not go to the length claimed by appellant is made evident by the fact that in the same volume with O’Reilly vs. McLeod, Judge Slidell, who was the organ of the court in the case, announced as its organ also in Gibson vs. Selby (2 Ann. 629), that “consent of parties cannot dispense with the necessity of an order allowing an appeal; that the jurisdiction of the appellate court attaches alter a judicial order divesting, when its terms are complied with, the jurisdiction of the1 inferior tribunal.” The court declared in the same case that the jurisdiction of the Supreme Court attaches when the bond was filed.

This case was followed by a number of others:

In Bachelor vs. Creditors, 20 Ann. 193, it was said: “The Supreme Court will not take cognizance of an appeal when there is no order o£ the District Court granting the appeal. The court is bound to notice ex offcio the non-existence of such an order and dismiss the appeal. .Consent of parties that an appeal may be taken does not give the Supreme Court jurisdiction of a suit, as an agreement between parties is not an order of court. It cannot take cognizance of a case when there is no order of the lower court for an appeal.”

In Moore vs. Sims, 21 Ann. 649, a motion was made to dismiss the appeal because there was never an order of court entered on the minutes of the court and no appeal was granted on petition. The court said: “We find no order of appeal in the record,” and dismissed the appeal, notwithstanding the filing in court of an affidavit of the district judge stating that the appeal was granted on motion in open court and, if not entered on the minutes, it was an omission of the clerk.

In McKnight vs. Denouvion, 22 Ann. 373, the plaintiff moved the court for a suspensive appeal from the judgment rendered in the cause returnable to the Supreme Court on the second Monday of April, 1870. The motion did not contain an order of appeal. The Supreme Court said: “We find no order of appeal in the record. The mere filing of a motion with an appeal bond does not divest the court below of jurisdiction, and invest the same in this court. The order of apjjeal is essential; it matters not in what form the application is made, whether by motion or petition.” The appeal was dismissed.

In Norris vs. Warren, 22 Ann. 458, the following entry was made on the minutes of the court: “Plaintiff’s motion of appeal filed and defendant’s counsel takes cognizance, and appeal bond fixed at two hundred and fifty dollars.” In disposing of a motion to dismiss the appeal, the Supreme Court said:- “This is not a sufficient compliance with Article 574 C. P. and also 573 of the Code of Practice, and the amendment thereof which requires that the judge shall fix the amount of security and cause the same, with the order granting the appeal, to he entered on the minutes of the court. The entry that the motion for appeal was filed does not show that it was granted.” (Moore vs. Sims, 21 Ann. 649). The appeal was dismissed.

In Dupre vs. Mouton, 23 Ann. 543, the Supreme Court dismissed the appeal ex officio. By agreement of counsel, made before judgment was rendered, an appeal to both plaintiffs was granted by simply filing the necessary bond and notifying the opposite counsel. The court said: “An appeal is a method of revising a definitive judgment (C. P. 556). It is to be taken after such definitive judgment is rendered. (C. P. 573, 574, 575, 578). An order of appeal, which is absolutely necessary, is the first step in the process by which the cause is brought within the jurisdiction of the Supreme Court (22 Ann. 458, Norris vs. Warren). If it be conceded that the minute granted above is anything more than a memorandum of a consent by the attorneys and amounts to an order of appeal, yet we know of no law which authorizes such orders in anticipation of the future rendition of a judgment. If a judge can grant an order of appeal to both parties, eleven days before judgment, he might go still further and at the moment the suit is instituted by anticipation grant general orders of appeal to all possible parties from all future judgments.”

In Louisiana State Bank vs. Barrow, 24 Ann. 276, an order of appeal was granted from one branch of the judgment, but no bond was given. In the other a bond was given, but no order of appeal was granted. The court said: “We find an agreement of counsel That one transcript shall be made for the two appeals taken in the case.’ As consent cannot give jurisdiction and as neither of the appeals has been perfected (one for want of an appeal bond, the other for want of an order of appeal), we are constrained to decline jurisdiction of the appeals.”

In Stehle vs. Millspaugh, 33 Ann. 649, an order of appeal was granted, returnable on the first Monday 'of November. A rule was taken in the lower court to have the order of appeal set aside for cause. Pending the rule, appellant filed the transcript in the Supreme Court before the return day. After this the rule was made absolute and the order of appeal set aside by the lower court. The Supreme Court dismissed the appeal. On rehearing the court said: “The appeal comes before us without an order of appeal, and we find no error in the decree dismissing the appeal.”

In Mrs. Weiser vs. Blaese, 34 Ann. 833, it was declared that no appeal will be recognized in the Supreme Court without an order of appeal upon which it is based.

In Philips vs. Creditors, 35 Ann. 935, the court said: “When the record contains no order granting the appeal, it must be dismissed.”

In State vs. Ventura, 48 Ann. 586, the court said: “The want of an order of appeal, when none has been applied for, is fatal to the appeal.” And in Oil Company vs. Matheson, 48 Ann. 1322, that “the order of court is the foundation of the appeal.”

In State vs. D’Aquin, 49 Ann. 1092, the court said: “We know of no case in which this court has taken jurisdiction of an appeal which had been brought up as this case has been, without either motion or order of appeal.”

It is quite usual for counsel, who consider “orders of appeal” “or appeal bonds,” so radically defective as to be absolute nullities, to refer to them as being no orders of appeal, and this was done by counsel of appellee in this very case; for there was unquestionably a paper filed in court purporting; to be an appeal bond, but counsel, in, their motion, declared it to be no bond at all.”

We think that the decisions upon whicH appellant relies were rendered in cases of this character. We are of the opinion that the granting by the lower court of an order of appeal is a jurisdictional fact, and that the absence of such an order should be noticed ex officio by the appellate court and acted upon of its own motion. The failure of the appellee to urge the objection, even if it had the effect of estopping him from filing a formal “motion to dismiss,” as appellant contends it does, would not preclude him from suggesting or bringing the matter to the knowledge of the court. Upon coming to such knowledge, it would be the duty of the court to dismiss the appeal of its own motion. If the decisions quoted by the appellant contain anything contrary to what we here declare to be the law, they must be considered to that extent overruled.

The párties have discussed the question from the assumed position that the motion to dismiss was filed so late as would cut off, generally, objections to this appeal. The judgment in the case was signed on the 28th day of May, 1900. Appeals from the parish of St. Mary were then (under Act No. 78 of 1898) returnable on the fourth Mondays of January, March, June and November, of each year. The regular return for this particular judgment was the 25th of June, 1900, but defendant obtained two extensions of time, one for ten days and tbe later one to the 10 th of July. The transcript was filed in the Supreme Court on that day. The court was then in vacation. It met again for the first time in regular session on the 5th of November, and upon that day the motion to dismiss was filed.

As the question submitted to us is an important one of practice, we have examined it from the standpoint from which it has been presented. The view which we take of the necessity as to jurisdiction of the existence of an order of appeal, upon which the appeal must rest, makes it useless to discuss at present whether appellate jurisdiction be dependent upon the existence of a bond of appeal of some kind, and to what extent an instrument claimed to be a bond could be characterized legally as such. We take occasion, however, to warn the profession upon the danger of giving too wide a scope to the decisions upon which the appellant in this case has relied. We have no alternative but to dismiss the appeal.

The appeal is hereby dismissed.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,594.
    Mrs. L. C. Colvin vs. D. A. Johnston, Sheriff et al.
    Syllabus.
    1. In case of disagreement in a pending cause, so. that there cannot be a concurrenee of two judges of the Court of Appeal in the decision thereof, the court may appoint a district judge, or a lawyer, having the qualifications of a judge of the court, to sit in the case.
    2. The essentials to the validity of a dation en paiement by the husband to the wife, in satisfaction of her paraphernal rights, are the just and honest claim of the wife against the husband, the just proportion of the value of the thing given to the amount of the wife’s claim, and the delivery to the wife of that which is the subject of the dation.

    3. Property encumbered by mortgage in favor of others may be the subject of a dation to the wife by the husband in satisfaction of her paraphernal claims, provided she does not assume or make herself responsible for the mortgage debts.
    4. And in determining the value of the property so transferred, it is competent for the appraisers to take into consideration the existing encumbrances, and appraise the property, for the purpose of the dation, at whatever it may be worth over and above the amount of the mortgages.

      5. tinder such circumstances, where the mortgages equal or exceed the value of the' property, a nominal valuation, over and above the encumbrances, put upon the property could hardly be denounced as a “vile” price.
    IN RE Joubert Bros, ei als., Applying for Certiorari or ’Writ of Review, to the Oourt of Appeals, Second Circuit, State of Louisiana.

      Andrew Augustus Gunby for Joubert Bros, and Thompson, Wilson & Co., Defendants, Applicants.

      Hudson, Potts & Bernstein for Plaintiff, Respondent. .
   The opinion of the court was delivered by

Blanchard, J.

This cause was decided by the District Court in favor of the plaintiff, whereupon an appeal was prosecuted to the Oourt of Appeals, Second Circuit.

The judges of the latter tribunal divided in opinion — Judge J. M. Kennedy holding the judgment appealed from to be erroneous, while Judge E. O. Montgomery considered the same to be correct.

In this condition of affairs, the judges decided on calling in a lawyer of the requisite qualifications to sit oi$ the case. They, accordingly, appointed Percy Sandel, Esq., of the Monroe bar, as judge ad hoc.

Argument was had before the three and on consideration Judges Montgomery and Sandel concurred in a decree affirming the judgment below.

Judge Kennedy dissented.

In the application made here by defendants for the writ of review, it is objected that the judges of the Court of Appeals,, being unable to agree, should have certified the case to this tribunal, and that it was error to call in a lawyer to sit in the case.

This objection is untenable.

Article 102 of the Constitution is direct authority for the appointment of a lawyer or a district judge to sit in a cause as to which the judges of the Court of Appeals have disagreed.

Plaintiff, in turn, objects to the consideration of the cause on the writ of review, for the reason that no application for a rehearing was filed in the Court of Appeals. In this connection, her counsel directs attention to the amendment to Rule 12 of this court, which reads as follows:—

“Hereafter no application for the writ of review in any case will be considered until it appears from the papers filed that an application for rehearing has been made in the Court of Appeals, considered and overruled.”

Zt not appearing from the papers of the case that an application for rehearing was filed and overruled, this would suffice to recall the writ as having inadvertently issued, but for the fact that the amendment to Rule 12, above quoted, was not adopted until June 18, 1900. This was after the judgment of the Court of Appeals herein was rendered, after notification had been given by the attorney of the applicants of intention to apply for the writ, and after, or on the very day, the application itself was mailed to the clerk of this court. We find the application was received here and filed June 19,1900.

So that when the attorney prepared and sent forward his application the amendment had not been adopted, or, at least, had not yet become ■operative.

With regard to the merits of the base, our review of the same lias led to the conclusion, both on the facts and law, that the controversy was properly determined by the Court of Appeals.

The opinion of the court, prepared by the judge ad hoc, is so clear in its statement and so accurate in its appreciation and application of the law governing the case that we adopt it as our own, as follows:—

“This is an injunction suit instituted by Mrs. L. C. Colvin, wife of J. B. Colvin, to restrain the sale of twenty-nine bales of cotton, alleged to be worth forty dollars per bale, and three thousand bushels of cotton seed, alleged to be worth four hundred dollars, seized by the sheriff of the Parish of Ouachita as the property of plaintiff’s husband under writ of ft. fa. issued in execution of judgments against him in suits Nos. 4188 and 4189, styled respectively Joubert Bros. vs. J. B. Colvin, and Thompson, Wilson & Co. vs. J. B. Colvin, on the docket of the Fifth District Court of the Parish of Ouachita.

. She avers that all of said property and crops were raised by her during the current year on the plantations cultivated by her, and are her separate and paraphernal property and in no wise responsible for the debts of her said husband, J. B. Colvin, and that she is regularly and legally separated in property from her said husband by judgment of the Fifth District Court of the Parish of Ouachita, and is conducting, operating and administering' her own affairs entirely free from the administration' and control of her husband, and that the seizure and sale of her property for the debts of her husband is illegal and malicions, and will cause her irreparable injury, and that an injunction is necessary to protect her rights in the premises, and that she has been damaged one thousand dollars by said illegal seizure, etc.

Defendants answering, aver that they are judgment creditors of J. B. Colvin, and that writs of fi. fa. were regularly issued on their said judgments and were executed by the sheriff by seizing twenty-nine balo? of cotton and fifty tons of cotton seed, which constituted a part of the crop raised and produced by J. B. Colvin on his plantations during the year 1899, and that said property belongs to said J. B. Colvin, and was in his possession at the time of its seizure, and that J. B. Colvin is a practical farmer and owns two plantations in the Parish of Ouachita which are his individual property, and are cultivated and managed by him in person; but for the fraudulent purpose of screening said crops from the pursuit of his just creditors, he pretends to run said plantations in the name of his wife; that the pretended title of plaintiff is a pure fiction and an absolute nullity; that she could not and did not lease the plantations belonging to her husband; that she did not and could not employ his services; that the crops made were the product of the husband’s individual skill, industry and work, and of his separate property, and that the wife has no interest whatever in said property. Avers and prays for damages.

The testimony shows that on the 5th day of October, 1898, Mrs. L. O. Colvin instituted suit against her husband, J. B. Colvin, alleging his insolvency, and praying for judgment against him for certain of her paraphernal funds had, received and used by him in his own business and for his own account, and for a dissolution of the community and a separation of property between her and her said husband.

Judgment was rendered in her favor on November 25th, 1898, against her husband, J. 'B. Colvin, for fifteen hundred dollars and decreeing a dissolution of the community and a separation of the property between her and her said husband apd authorizing her to conduct and manage her own affairs.

On March 20th, 1899, J. B. Colvin, by a dation en paiement, transferred to his wife, Mrs. L. O. Colvin, in partial satisfaction of her paraphernal claims against him, the two plantations, together with fifteen mules attached thereto and immovable by destination, and all fanning implements thereon, on, which the crops herein seized were produced during the year 1899.

This act of dation en paiemeni was filed for record and duly recorded in the notarial records of the parish on the 4th day of April, 1899.

The seizure of the property described in plaintiff’s petition was made on the 21th day of November, 1899, and was a part and parcel of the crops produced on the plantations transferred by' J. B. Oolvin to his wife as aforesaid.

It is a well settled principle in our jurisprudence that the law favors restitution to the wife and looks with favor upon the efforts of the husband to secure her just and honest claims against him.

The fact that the husband is insolvent and embarrassed, that he is pursued by creditors by harsh remedies, cannot be invoked to destroy the validity of the transaction. The rules governing the revocatory action do not apply to the daiion en paiement by the husband to the wife in satisfaction of her just paraphernal claims.

This well settled doctrine dispenses with a discussion of the fraudulent intention of the parties to the daiion en paiement, and reduces the issues in this case to a determination of the validity and legality of the daiion itself.

If it be valid and legal the intention of the parties thereto is irrelevant and immaterial. It it be null and void, all- rights under and by virtue of it are without foundation and must fall.

The essentials to the validity of a dation en paiement by the husband to the wife are the just and honest claim of the wife against the husband, the just proportion of the value of the thing given to the amount of the wife’s claim, and the delivery to the wife of the thing given to her in satisfaction of her debt.

The contention of the defendants in this case is that' the price stipulated in the dation en paiement is vile, that it is a mere nominal price, that it is inadequate and out of proportion to the real valué of the property transferred.

The testimony in regard to the value of the property, as is that in regard to the amount of the special and judicial mortgages existing against the property, is very unsatisfactory. However, it is admitted that the property is not worth the amount of the special and judicial mortgages existing against it at the time of the transfer to Mrs. Colvin.

The only evidence in the record as to the value of the property is that of L. D. McLain, who says the property is worth from sixteen to twenty thousand dollars, and his testimony seems to refer exclusively to the value of the land.

Mrs. Colvin acquired the property subject to (but not assuming) all existing special and judicial mortgages, which are admitted to be more than the value of the entire property. The price stipulated in the dation en paiement is one hundred dollars.

The question is now reduced to this, is this price, under the circumstances and conditions of this case, vile, inadequate and out of proportion to the real value of the thing given ?

In order to determine this question, it will be necessary to decide just what was acquired by Mrs. Colvin. It is evident, that if she acquired anything, she acquired the legal title to the property subject to existing charges and encumbrances with which the property is burdened, and which amount to more than the real value of the property.

What, then, is the value of this encumbered legal title? What is it worth, and what is its market value ?

It would be worth substantially nothing were it not for the fact that it carries with it the right of its owner to occupy, possess, enjoy and cultivate said property for her own use, benefit and profit, which may, or may not, be valuable. The legal title and its accessory right 'of occupancy, possession and use is subject to be defeated at any time by any special or judicial mortgage creditor by foreclosure, or by hypothecary proceedings against the property.

If the various special and judicial mortgage creditors do not proceed against the property, and Mrs. Colvin were allowed to cultivate and use the property, her legal title is valuable. On the contrary, if these various mortgage creditors had taken proceedings against the property without delay, her legal title would have been absolutely worthless.

Considering all things and in the light of all the surrounding circumstances, Mrs. Colvin’s purchase was of very doubtful and uncertain value and subject to exceedingly precarious conditions. We are not, therefore, prepared to say that it was worth more than one hundred dollars, the price stipulated in the dation en paiement, or that said price is vile, inadequate and out of proportion to the value of the thing given, and especially are we unwilling to arrive at such a conclusion on considering the appraisement made at the time of the dation, and in the absence of proof to the contrary.

It will be assumed that the property transferred by the husband to the wife is fairly appraised in the act of transfer, until the contrary is shown by the party attacking the transfer. Lehman, Abraham & Co vs. Levy, 30 La. Ann. 746.

Defendants’ counsel urges the nullity of the dation en paiement for another reason, which is, that the wife cannot acquire by dation en paiement from the husband property which the latter has encumbered with mortgages because it' is, in effect, the wife assuming the debts of the husband, which is contrary to prohibitory law, citing Article 2398 of the O. C. That Article is as follows:—

“The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him for debts contracted by him before or during the marriage.”

Defendants’ counsel cites no authority to sustain his position, but relies on the general principles of the law.

It is settled beyond dispute by a long line of precedents that the wife is not in any case permitted to bind herself, or her property, either with or for her husband, for debts due by him before or after marriage. It is also well settled that a dation en paiement by the husband to the wife, whereby she agrees and assumes to pay debts or mortgages due by the husband as a part of the consideration and price stipulated in the dation en paiement, is a contract not authorized by law and does not pass the property from the husband to the wife; and that such a contract is null and void and of no effect.

But we know of no case in which it is held that the husband cannot transfer by dation en paiement to the wife encumbered property, if the wife does not assume or in any manner become responsible for the debts of her husband. On the contrary, in the case of Levy, Executrix, vs. Morgan et als., 33 La. Ann. 532, it was expressly held: — •

“There is no legal objection to the husband’s transferring to the wife in payment of her paraphernal rights, property encumbered with a mortgage, because she takes the property subject to the mortgage, without assuming the debt of her husband.”

That ease is very similar to the instant one and seems to decide all questions raised by defendants’ counsel adversely to his views.

It is said, however, that this case stands alone and is in conflict with the general and elementary principles of the law, and previous decisions on this subject, and should not be followed.

There does not appear to be a conflict. There is a wide distinction between the cases in which the wife acquires the property cum onere, though not making herself personally liable, and those cases, in which she assumes to pay, as her own, the debts of her husband.

The reason for this is evident. In the first, she takes the property with the privilege of surrendering it in the event of foreclosure, or hypothecary action, without incurring any personal liability should the property not realize sufficient to satisfy the encumbrances; in the second, not only is the property liable for the payment of the debt, but the wife undertakes to become personally liable, and in case the property does not realize sufficient to satisfy the debt, she stipulates that she and her separate estate would be bound for and subjected to the payment of the deficiency.

In the first, the wife does not bind herself or her property; in the second, she does; and it is the second case only which is contrary to and prohibited by law.

It is contended, further, that the encumbrances should not have been considered by the appraisers in determining the value of the property. This question is also settled by the case of Levy, Ex. vs. Morgan el als., 33 La. Ann. 535, in which the court say:—

“Nor was it improper in the appraisers of the land to take into consideration the encumbrance on the land in making their valuation of it preparatory to its transfer by Morgan to his wife. The question was, what was the property worth to the wife, who proposed taking it in satisfaction of her debt. ' To ascertain its real worth to her, and what she could afford to allow for it, the encumbrance upon it should have been taken into consideration. It was quite certain that whatever encumbrance existed, it would not be discharged by the insolvent husband; and the actual value of the land was only what it was worth over and above the prior mortgage. Nor can it be said that this involved the question, raised by plaintiff’s counsel, of the right of the wife to assume the husband’s debt, for taking the land subject to the mortgage, even with the expectation of having it to pay, implied no assumption of the debt.”

This reasoning appears to be sound. There is no practical method of determining the value of encumbered property to an intended purchaser other than to deduct from the actual value of the property the amount of the encumbrances, and we know of no legal reason why a different rule should be used because the wife is, the purchaser.

Defendants contend that the dwtion en paiemenl is void because it is speculative and an aleatory contract between the husband and wife, which is contrary to the policy of the law, and that the law does not permit the wife to involve herself.

This is a well settled principle, but it has no application in this case. Mrs. Colvin has made no investment beyond her separate and paraphernal means, nor bound herself for anything over and above the purchase price stipulated in the dation en paiemenl, which she satisfied in full without exhausting her paraphernal means.

She bought certain property at a certain fixed and appraised value and paid the price at the time of purchase.

We know of no ease in which such a transaction has been declared

illegal or contrary to the policy of the law. On the contrary, it has always been held that the wife has the right to invest her paraphernal funds and to acquire property as the result of such investment, and such transactions have always been sustained, where' it is shown that the wife had sufficient paraphernal funds with which to make the purchase, and which are ample to enable her to make the new acquisition. See Miller vs. Hardy, Sheriff, et als., 33 La. Ann. 160, and authorities there cited.

Defendants contend that the property seized is the result of the work, skill, management and industry of J. B. Oolvin, the husband, and that it is, therefore, community property and liable to seizure and sale for the debts of the husband. It is well settled that the wife may administer her paraphernal property through the agency of the husband, and that she may avail herself of his assistance if he is willing to render it, provided he act under her authority and merely as her proclaimed agent. Such acts, though performed by the husband, are the acts of the wife. “Qu-i facit per alium, facit per se.”

She has all the power of a femme sole in regard to the management of her separate property, including- the power to employ agents.

See Barataria vs. Field, 17 L. 426; Jordan vs. Anderson, 29 La. Ann. 749; Miller vs. Hardy, Sheriff, et als., 33 La. Ann. 160.

The testimony establishes that the husband, J. B. Colvin, acted as the agent of his wife, that all contracts for supplies were made by Mrs. Colvin' and in her name, that she pledged the crop to secure same, that the business was conducted in her name, and that in all transactions by her husband, he acted as her proclaimed agent, and was dealt with as her agent.

The dation en paiement being valid, it transferred the property to Mrs. Colvin with all the rights of ownership, and having operated and cultivated the plantations for her own use and benefit, the fruits and. revenues thereof are her separate and paraphernal property, and in no was responsible for the debts of J. B. Colvin, her husband.”

For the reasons given it is ordered that the judgment of the District Court, affirmed by the decree of the Court of Appeals, do stand undisturbed — costs of all the courts to be borne by defendants.


author: Nici-iolls, O. J.

text:
    No. 13,516.
    Strahorn-Hutton-Evans Commission Company vs. Red River Oil Company, Limited.
    Syllabus.
    1. Under a contract by a party to furnish another with hulls and cotton seed meal for feeding cattle, wherein the quality of the articles to be furnished is not declared, the vendor’s obligation in respect thereto is governed by the provisions of Article 2156 of the Civil Code to the effect that “if the debt is of a thing which is determined only by its species, the debtor, in order to gain his discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst.”
    2. Complaints made on special occasions of the feed furnished on these dates, which objections were removed by the substitution immediately of other feed, did not rise to the seriousness of a putting in default. The fact that on all other occasions the feed furnished was not only received and used withouf objection, but paid for according to the terms of the contract without complaint, is evidence that there was no just cause for dissatisfac- . tion. (Giecke vs. Finlay & Brunswig, 45th Ann. 408.)
    3. The mere fact that a party who has contracted to furnish another with feed for his cattle, knows that the latter intends to ship them to market for sale when fattened, does not commit him to the fattening of the cattle by the feed, particularly when it is not pretended that the vendor was an expert in cattle feeding, or had any knowledge as to what particular quality of feed would bring about certain results, or had made any representations or stipulations on that subject. When it is shown that a number of contributing causes led up to the cattle’s not fattening as the purchaser had contemplated, the vendor of the feed would not be liable for loss to the purchaser, if the badness of the food had been one of such causes and the vendor was legally liable unless it could be shown what proportion of the loss was attributable to that fact.
    APPEAL from the Tenth Judicial District, Parish of Rapides— Hunter J.

      Robert P. Hunter and Munholland <& Munholland for Plaintiff, Appellant.

      M. G. Mosely for Defendant, Appellee.
   The opinion of the court was delivered by Nicholls, C. J.

Statement oj? the Case.

Nici-iolls, O. J.

The plaintiff seeks to obtain a judgment against the defendant for the sum of twenty-four thousand three hundred and sixty dollars, with legal interest.

Its demand is based upon allegations that, on the 9th of June, 1898, the defendant company made a written contract with Charles E. Greneaux, obligating themselves to furnish cotton seed hulls and meal of prime quality, sufficient to feed from fifteen hundred to two thousand head of beef cattle during the fall and winter of 1898 and 1899, at or near their mill in the Parish of Rapides, in order to fatten said cattle for the markets of St. Louis or Kansas City, to which the cattle,' when fattened, were to be shipped for sale, and at certain prices as stipulated in the said written contract.

That, acting on the faith of said written contract, they furnished to said Greneaux about fifty-four thousand ($54,000) dollars in ready cash, with which to purchase and with which he did purchase and ship to Alexandria^ Louisiana, eighteen hundred head of beef cattle to be fed with first-class cotton seed hulls and meal to be furnished by the said Red River Oil Company, Limited, for the purpose of fattening them for sale in the spring in the western beef markets, to the knowledge of the defendant company.

That, on or about the 10th day of January, 1899, they purchased from the said Greneaux the said eighteen hundred head of beef cattle, being eight hundred and forty-three head of three-year old steers, and nine hundred and fifty-seven four-year old and up steers; and with the full knowledge and consent of the said Red River Oil Company, Limited, they were substituted in the said contract for and instead of the said Greneaux, and were subrogated specially in and to all his rights and actions into and growing out of the said contract of June 9th, 1898.

That it was well known to and understood"by the Red River Oil Company that the said eighteen hundred head of beef cattle were to be fed for shipment, after they had been fattened, to St. Louis or some other of the western cattle markets, and that the defendants were also fully aware that the said cattle could not be fattened profitably unless thev were fed with the very best quality of cotton seed hulls and cotton seed meal, and notwithstanding this fact the hulls and meal furnished by it to the said Greneaux and to themselves, after they bought the cattle and assumed his contract, were of an inferior kind and quality and by no means first-class as they should have been, and that by reason of said inferior quality and bad condition of said hulls and meal, the said cattle failed to fatten as they would have done if they had been properly fed, and never did reach the weight which they” would have reached if the seed and hulls furnished by the said defendant company had been of the first grade in kind and quality, by reason of which fault, want of care, negligence and active violation of their said written contract by the defendant, plaintiff-suffered great loss, damage and injury, as follows, viz:

Loss by steers not weighing one thousand and fifty pounds, standard weight .........................-......... $3060 8S
Loss of price on steers sold by reason of not being in prime condition ...................................... 2260 89
Loss on ten sick which died in pen at Alexandria........ 424 35
Loss on 19 sold at Alexandria.......................... 616 26
Loss three drunken steers abandoned at Pine Bluff, Arkansas 127 29
Loss on 1027 head sold to Kennedy.................... 13,562 79
That they are entitled to deduction on the feed bill of O. E. Greneaux by reason of the inferior quality of meal and hulls furnished in the sum of.................. 1301 85
And on feed bill furnished to plaintiff.................. 3005 70
In all aggregating the sum of..........................$24,360 01

Twcnty-fo or thousand three hundred and sixty and one hundredths dollars.

That the defendant well knew that Greneaux and themselves were entitled to prime quality of cotton seed hulls and meal, and -that only that qixality of meal and hulls would give satisfactory and profitable results in the feeding of the cattle, and that the defendant company also knew that the hulls and meal furnished by them were of an inferior quality, and were not suitable for feeding cattle, and would produce disease when fed to the cattle, and notwithstanding the numerous protests made to them from time to time by C. E. Greneaux and plaintiff as to the inferior quality of the hulls and meal furnished by i t, and notwithstanding that they could easily and readily have procured a prime quality of hulls and meal in sufficient quantities to have complied with their contract, they continued to furnish the inferior quality of hulls and meal, and failed to procure prime quality elsewhere, as they could have done and were obliged to do, thereby causing the loss and injury to plaintiffs above alleged.

Judgment was asked to conform to these averments.

Defendant answered, first pleading the general issue. It averred that if plaintiff ever sustained damage it was caused, or at least contributed to, by the plaintiff’s own negligence, mismanagement and misconduct, in either of which events there could be no recovery.

That plaintiff’s petition failed to allege no want of contributory negligence, which was a necessary averment, and the absence of which furnished ground for the dismissal of plaintiff’s suit; that this allegation could not, however, bé truthfully made, for the plaintiff and its agents well knew that in truth and reality, they were guilty of contributory negligence and that the real and true cause of not making more on the cattle, was due to bad weather, bad handling, mismanagement and negligence on their part, as would be fully shown on the trial.

That the plaintiff and its representatives well knew what kind of feed they were buying and getting, knowingly accepted it and voluntarily appropriated it to their own use; that they had the control and management of their cattle, and themselves selected and fed the feed to the cattle; and paid for same up to near the end of the feeding season, and for the balance of eight hundred and seventy-one 60-100 dollars, then due to defendant, the agent and managing representative of the plaintiff, recognizing and admitting same to be. due, gave a draft on his principal, the said Strahorn-TIutton-Evans Commission Company of St. Louis, Mo., thus leading the defendant and its representatives to believe that they were going to get the balance due for feed,' until the cattle had been taken away, and carried beyond the reach of defendant or the process of the court, thus by bad faith and deceitful practices misleading defendant’s representatives and depriving defendants of their lien and privilege upon the cattle to secure the money for the feed they had been eating, and depriving them of the opportunity to attach the cattle as property of absentees. That this draft when subsequently forwarded by defendant for payment was not paid, and went to protest for non-payment, necessitating the expense of protest, all of which would be more fully shown on the trial hereof.

That after having given credit to plaintiff for sacks returned and a wagon, as claimed by plaintiff, the plaintiff still owed defendant the full sum of seven hundred and ninety-two and 31-100 dollars, for feed furnished, for which sum ($792.31) defendant reconvened and asked judgment.

That the plaintiff had caused serious injury to defendant; that they unnecessarily called away defendant’s general manager to Natchitoches, by telegram, not only putting him to inconvenience, trouble and annoyance, but also depriving defendant of his care, attention, skill and services in having its mill properly and safely operated, and thus causing the breaking of costly' machinery, oil press cylinders, and thus forcing defendant to pay five hundred and ninety-five dollars to repair the broken machinery; and also producing a reduction of the capacity of the mill for at least three weeks, thus causing defendant a further loss of nine hundred dollars, and also at other times unnecessarily requiring and occupying attention and time of the general manager of the mill, when it should have been devoted to the business of the mill to his great annoyance, inconvenience and vexation and to the loss and injury of defendant in the sum of two thousand dollars; aggregating the sum of three thousand four hundred and ninety-five dollars.

That it had been further injured by the slander and defamations of the plaintiff seriously affecting its credit and the public confidence which it had always enjoyed, and depriving 'defendant of profitable patronage, and seriously damaging its business, by accusing defendant of breaking its contract and violating its obligations and by trying to impress the public with the idea that its products will kill or injure cattle, and besmearing its fair name and high standing for rair dealing, a matter of the highest importance to defendant, in obtaining loans from banks, which it is compelled to do during the cotton seed season, and also in the midst of strong competition with powerful rivals, in obtaining seed from planters and disposing of the products of its mill. For thus slandering and injuring defendant, the plaintiff owed it compensation in damages in the sum of twenty-five thousand dollars, which together with the other damages above set forth aggregates the sum of twenty-eight thousand four hundred and ninety-five dollars damages, in addition to the unpaid feed bill above set forth of seven hundred and ninety-two and 31-100 dollars, and for all of which defendant reconvened and asked for judgment.

Defendant prayed that the demands of the plaintiff be rejected, and that there be judgment, by way of reconvention, in its favor and against the plaintiff, for the sum of seven hundred and ninety-two and 31-100 dollars, together with legal five per cent, per annum interest thereon from the date of said draft, the 1st day of April, 1899, and for the additional sum of twenty-eight thousand four hundred and ninety-five dollars damages, together1 with legal interest thereon from judicial demand.

Plaintiff filed a plea of estoppel against the defendant, alleging that defendant had induced it to enter into the contract under date oí January 11th, 1899, between C. E. Greneaux, Red River Oil Mill, Limited, and plaintiff, under the stipulation, agreement and mutual understanding by and between all the parties that:

1st. Strahom-Hutton-Evans Commission Company should be and was made the transferrees of C. E. Greneaux, in the feed contract' of date June 9th, 1898, between Red River Oil Mill, Limited, and C. E. Greneaux, with the knowledge and consent of Red River Oil Mill, Limited, and as a condition, precedent, insisted upon and did actually receive from plaintiff the sum of three thousand nine hundred and twenty-six 66-100 dollars due Red River Oil Mill, Limited, by C. E. Greneaux, on said feed contract, for which amount plaintiff was in no manner liable, and which caused plaintiff to alter and change its position to its prejudice as is fully shown and set out in said contract bearing date of January 11th, 1899.

2nd. Shows that from completion of said contract to April 1, 1899, plaintiff received from defendant, cotton seed meal and hulls, as subrogee to the Greneaux contract of June 9, 1898, paying defendant therefor under protest against the quality of said meal and hulls, defendant receiving the price agreed upon in said contract of June, 1898.

3rd. That in defendant’s reconventional demand, set up in answer to this suit, defendant is judicially claiming and asserting that under said contract there is due an alleged balance of seven hundred and ninety-two 31-100 dollars, arrived at, determined and fixed under the terms and conditions of the Greneaux contract of June 9, 1898, and is still praying for judgment for said amount.

Plaintiff, therefore, shows that for the first and second reasons and causes herein stated, the defendant is estopped by its said act en pais, and by the third cause and reason defendant is judicially estopped from! claiming, contending or asserting or denying that plaintiff was and is not the transferree and subrogee of and fully subrogated to all the rights and privileges of said C. E. Greneaux, to the feed contract under date of June 9, 1898, marked “Defendant A,” and further that the defendant is judicially estopped from contending, asserting or claiming that the said Greneaux contract, under date of June 9, 1898, had been abrogated or eliminated, either by contract of January 11, 1899; or by any subsequent parol agreement between the parties to the said contracts.

Plaintiff, therefore, prays that this plea of estoppel en pais, and plea of judicial estoppel be allowed and filed and sustained, and the demand of defendant rejected at its cost in relation thereto.

The issues were tried by a jury, who returned a verdict rejecting plaintiff’s demands and allowing defendant’s claim for feed bill as claimed, and disallowing the reco^iventional demand for other damages.

Judgment was rendered in conformity to the verdict, and plaintiff appealed.

Defendant, in the Supreme Court, asked damages as for a frivolous appeal, and contingently prayed for an increase of judgment in its favor.

Opinion.

The plaintiff company sues the defendant for twenty-four thousand three hundred and sixty dollars damages, claiming that with the full knowledge and consent of the Red River Oil Company, Limited, it had been substituted, in lieu of Charles E. Greneaux, in a certain written contract, entered into by the latter on or about the 10th of June, 1898, with the Red River Oil Company, Limited, and specially subrogated in and to all his rights and actions to and growing out of said contract. The contract referred to was a written proposition .accepted by Greneaux in which the Oil Company declared that “it had agreed to furnish Greneaux hulls and meal to feed from 1500 to 2000 head of cattle, on the basis of 33 and 1-3 per cent, of cost of.the seed; that is (if) average cost' of the seed at the mill is seven 50-100 dollars per ton, price of hulls shall be two 50-100 dollars per ton at the mill. If price of seed declines to average cost of six dollars delivered at the mill (for) the season price of hulls shall be two dollars per ton at mill.

“If price of seed averages nine dollars per ton, price of hulls shall be three dollars per ton at mill. Price of meal shall be — basis $15.00 per ton at average cost of seven 50-100 dollars per ton for seed, and this price shall be declined or advanced one-half of what seed may decline or advance as the case may be.

“Settlement shall be made during the season at two 50-100 dollars for hulls, and $15.00 for meal, and at end of season when average cost of seed delivered at the mill is ascertained, the adjustments shall be made by deducting or adding to above prices as the ease may be, as herein stated. These conditions are to be left over to Greneaux until the 2nd ■of August next, at which time lre is to notify us whether he is to take the' feed, .and feed the cattle. Mr. Greneaux agrees to take feed on these conditions and prices for fifteen hundred to two thousand head of cattle, and not to feed cattle at any other place (Natchitoches excepted) until he has placed in feed pens, with us, the fifteen hundred or two thousand head.”

Referring to this contract plaintiff, in its petition, averred that defendants had obligated themselves to furnish cotton seed hulls ánd meal of prime quality, and first-class as to quality, sufficient to feed from fifteen hundred to two thousand head of beef cattle, during the fall and winter of 1898 and 1899 at or near their mill in the Parish of Rapides, in order to fatten said cattle for the markets of St. Louis 'or Kansas City, to which the cattle, when fattened, were to be shipped for sale.

The contract in question was made by Greneaux, in view of a contemplated purchase of cattle which he proposed to take to the Parish of Rapides for feeding.

Greneaux did, in fact, make a purchase of cattle in Texas, 'of which some were shipped by rail and left at Natchitoches, while eighteen hundred were left in Alexandria, in Rapides Parish, in November, 1898.

The plaintiff company advanced Greneaux fifty-one thousand four hundred and eighty-eight dollars with which to make this purchase, and in representation of the loan Greneaux executed and delivered, on .November 22, 1898, his eight promissory notes for different amounts, payable at different dates, with eight per cent interest thereon from maturity; the first of these notes matured on March 5, 1899; the last on ■ April 28, 1899.

The yellow fever prevailed in Louisiana in 1898, and in consequence of the quarantine which had been established because of it, Greneaux did not accompany the cattle to Alexandria, but the landing and care of the same was entrusted to his employees.

The fall season of 1898 and the early winter of 1899 were exceedingly had in Louisiana, affecting very injuriously the cotton crop and cotton seed, and cattle exposed to the weather. Greneaux became satisfied that his venture would prove an unprofitable one, and in view of that fact and of his physical condition at that time, he proposed to the plaintiff company to sell to it all the cattle at Alexandria for and in consideration of a surrender by it of his notes. The plaintiff accepted the proposition and accordingly, on the 10th of January, 1899, a written act of sale of the eighteen hundred cattle at Alexandria was made from Greneaux to it for said price, the price being paid by the surrender of the notes referred to.

It appears that before this (to-wit on the 5th of November, 1898,) Greneaux had, by act before Randsell, clerk of Rapides Parish, secured payment of these notes in favor of the plaintiff by a pledge upon the eighteen hundred head of cattle then in Rapides.

In the act of sale of the cattle, of the 10th of January, 1899, this pledge is referred to and it was stated that that sale was to take the place of the act of pledge. It was also stated in the act of sale that Greneaux had that day given his order on the Red River Oil Company for the amount of fifteen hundred dollars worth of meal and hulls to be delivered to the plaintiff as per his contract with the Oil Company.

It appears that it was contemplated that the Oil Company should be secured for the seed it was to furnish, by pledge upon their cattle in Rapides, but this pledge was never, in fact, made out. On the 11th of November, 1898, the Oil Company wrote to the plaintiff that Greneaux had made satisfactory arrangements with it for the payment of feed for eighteen hundred head of cattle, and that their bill for feed was waived until the full and final payment to 'the plaintiff of twenty-seven dollars per head on the said steers. On the 5th of December, 1898, Greneaux, by act before notary, Charles V. Porter, notary for the Parish of Natchitoches, acknowledging that he was indebted to the Oil Company in the sum of twelve thousand dollars, evidenced in his note for that amount, and interest, secured the payment of said note in favor of the Oil' Company by pledge upon seven hundred head of beef cattle then in Natchitoches.

This note was evidently for the supposed sum which the feed contract would call for. On the 11th of January, 1899, an act was passed between Greneaux, the Strahorn-IIutton-Evans Commission Company and the Red River Oil Company, Limited, in which the Oil Company for and in consideration of the sum of thirty-nine hundred and twenty-six dollars and sixty-six cents transferred, without recourse, to the plaintiff company its right, title and interest in and to the contract of pledge made in its favor, before Porter, notary, of the seven hundred beeves referred to in that contract, to secure the payment of Greneaux’s twelve thousand dollars’ promissory note. It was declared that the amount of this note was, by consent of Greneaux, the Oil Company, and the Strahorn-IIutton-Evans Commission Company, reduced to the sum of five thousand four hundred and twenty-six 66-100 dollars. The note of twelve thousand was accordingly credited with the sum of six thousand five hundred and seventy-three 34-100 dollars, as was the pledge. The note so reduced was transferred to the present "plaintiff company “together with all the rights, privileges and actions growing out of said contract of pledge;” the Oil Company substituting the plaintiff company in its stead in said contract of pledge as holder of the note.

The Eed Biver Oil Company in said act “moreover bound and obligated itself to feed the fifteen hundred head of cattle then at Alexandria which had been surrendered by O. E. Greneaux to the Strahorn-ITuttonEvans Commission Company for an average period of seventy days from the date of the act, on the same terms and conditions and for the same price as agreed upon with O. E. Greneaux, except that the Strahorn-ITutton-Evans Commission Company, which had released C. E. Greneaux from his obligation to feed the said eighteen hundred head of beef cattle any further, had agreed also to pay to the Eed Biver Oil Company the sum of three thousand nine hundred and twenty-six 66-100 dollars, then due it by Greneaux, as a part consideration of the sum mentioned as the price it was to pay for the transfer of the pledge drawn and the promissory note recited, would pay cash tor all future feed furnished it from the Eed Biver Oil Company, Limited.

In the act of sale from Greneaux to the plaintiff company of the cattle at Alexandria, and in the act evidencing the payment of the three thousand nine hundred and twenty-six dollars, the transfer of Greneaux’ promissory note and the pledge securing the same as reduced, and the agreement of the Oil Company with the plaintiff company as to feeding the cattle which had then been transferred, the plaintiff company was represented by William Hunter, one of its stockholders, as its attorney in fact.

After the sale to it of the cattle, the plaintiff took active charge and ■ control of the same through its agents and employees. The only connection of the defendant with them was the furnishing of the feed with which they were provided. While the cattle were in the ownership of the plaintiff a number of them died, and some were abandoned while being shipped to market on account of their physical condition. The plaintiff disposed of the balance and then brought the present action for damages alleged to have been sustained by it from the character of the feed furnished by the defendant company.

The plaintiff’s claim of being transferee from Greneaux to his feed contract with the defendant company, with subrogation to all of his rights of action growing out of that contract rests, upon a writing without a date, signed by C. E. Greneaux alone, and written just below the act evidencing the sale of the Alexandria cattle to the plaintiff and which reads as follows:

“It being the intent to include a certain feed contract of O. E. Greneaux with Red River Oil Company, Limited, under date of June 9, 1898, in the foregoing act of sale and as mention of same was inadvertently left out when, in fact, it was transferred to Strahorn-HuttonEvans Commission Company in the same transaction and at the same date, I herewith expressly transfer said feed contract to StrahornHutton-Evans Commission Company for the consideration above expressed, with full and complete subrogation to them of all my rights, privileges, titles, interest and rights of action of whatever nature or character.”

The evidence shows that this paper was signed only a short time before the present action was brought.

The defendants deny that the feeding contract between Greneaux and itself was continued through the plaintiff company, and that the latter was subrogated to the rights of Greneaux under that eontiact. They contend that the first contract between themselves and Greneaux was abrogated and ended with both parties being mutually and reciprocally released from it at the time that the second contract (that which was made between the plaintiff and themselves) was entered into. That the first contract was not continued, but merely referred to, and that for the single purpose of fixing the price to he paid by the plaintiffs for food which was to be the same as had been fixed in the first contract, and should be regulated by the same sliding scale. That the second contract was a new one, and after it had been entered into the rights and obligations of parties had to be tested by it.

■ The conclusions which we have reached in the case make a discussion of this question unnecessary, for we think the verdict of the jury and the judgment of the court were correct, from whatever standpoint matters may be viewed. The defendants’ position on this subject is, however, correct, that the first contract was terminated and not continued through the plaintiff company under a transfer of it by Greneaux.

The first error of the plaintiff is in assuming and declaring that the defendant had, under its written contract with Greneaux, obligated itself to furnish cotton seed meal of prime quality and first-class as to quality. The quality of the seed and hulls to be furnished is not mentioned at all, and the price to be ultimately paid was on a fixed sliding scale on the basis of the average price of the seed furnished to the mill during the season. Under such circumstances! defendant’s obligation was governed by the provisions of Article 2156 of the Civil Code, which declares that if the debt be of a thing which is determined only by its species, the debtor, in order to gain his discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst.

(This same principle finds expression in Article 1640 of the Code).

We axe satisfied from the evidence that defendant furnished as good articles of meal and hulls as it was required to do by its agreement. It is true that on several occasions complaint was made of the quality of some of the seed or the hulls, but the complaint never rose to the seriousness of putting- the defendant in default by reason of the same, nor would the occasions referred to have justified such a putting in default. The trouble on these occasions, if such it could be called, was occasioned not by the acts of the defendants, but by those of plaintiffs’ employees in their taking- of themselves from the storehouses to which they were given free access, the seed and hulls (of which there were several qualities) those which were most convenient to them at the time. Defendant’s employees did not deliver them, but permitted plaintiffs’ workmen to take them at liberty. The moment that objections were made on these occasions, the matter complained of was rectified. The fact that on all occasions other than these the feed was received and used without objection, is evidence that there was no cause- for dissatisfaction. Not only were the meal and hulls received and used, but payment for the same was regularly made without complaint, up to the time that the last cattle were shipped. Even then plaintiffs’ agent, on the spot, drew a draft of seven hundred and ninety-two 31-100 dollars representing the last instalment of the price of seed, and though the draft was returned dishonored, payment was not refused on account of any claimed defect in the quality of the feed, nor by reason of any assertion of claim for damages against the defendant.

At the time that Greneaux sold the cattle to the plaintiff company, he owed the defendant over thirty-nine hundred dollars for feed which the plaintiffs, his vendees, paid at his instance, and by consent of all parties, the note and pledge securing payment of that sum was transferred with subrogation, and the balance of the note of twelve thousand dollars, less fifteen hundred dollars, which represented the amount of Greneaux’ whole ultimate liability to the defendant, under his contract, was cancelled.

Each and every payment made for the feed was at once an admission and a partial settlement. (See Giecke vs. Finlay & Brunswig, 45 Ann. 408). Over and beyond this Hunter, one of the plaintiff’s stockholders, who acted for the plaintiffs in the matter, saw the condition of the cattle at the time of the sale to his company and the qualify of the feed being furnished, and while declaring that the latter was not of the best said, “before and at the time of making the new contract with the defendant, that he thought it would do.” It was a difficult matter in 1898, .by reason of the character of the weather, for the mills at that time to obtain the very best quality of seed. The'feed furnished by the defendant was not of the best quality, but it was fair. The allegation in the plaintiff’s petition that the defendants obligated themselves to furnish cotton seed meal and hulls first-class as to quality, in order to fatten the cattle for the markets of St. Louis or Kansas City, to which the cattle, when fattened, were shipped, is not borne out either by the contract or the evidence. Defendants unquestionably knew that the articles were intended for the feeding of the cattle, but they certainly did not undertake to fatten them, or to insure that the feed furnished would have that effect; they had not seen them, did not know what character of cattle they were; what their condition would be on arrival; how they would be handled; what amount of food they would be given, nor at what time it would be given; they, doubtless, knew that they were to be resold, but not when, nor at what markets; nor did they know at what extent of fattening Greneaux was aiming. It is not pretended that the defendants were experts in cattle feeding or had any knowledge as to what particular quality of meal or hulls would bring about certain results. If such a quality there was, plaintiffs should have! specially contracted for it. It would have been folly for the defendants to have assumed any such obligations as the plaintiffs charge them with having taken upon themselves, and it is utterly unreasonable to suppose that plaintiffs, in making the contract, contemplated that such obligations were in fact assumed as the result of a simple sale to them of feed.

Assuming as true that defendants would be liable to the plaintiffs, on the basis contended for by them, for the failure of the food which they furnished to fatten the cattle,, or to fatten them up to the point that plaintiffs expected them to be fattened, we do not see how plaintiffs could expect a claim for damages to be fixed. If cattle did not fatten, or if they did not fatten to the point expected, it would be impossible to ascertain to what extent this was due to the feed furnished by the defendants even if it should be granted that they had contributed to those results. They could be attributed to numerous other contributing causes as shown by the evidence. Defendants charge that the cattle were purchased at too high a price; that they were inferior in character; that they were taken by tail, after a long journey, to new places, away from their habitual surroundings, and subjected to the disquieting effects of noises and scenes to which they were not accustomed, which caused them to stampede and injure themselves; that food was placed before them of which they had no knowledge and which, for a time, they would not touch, That all cattle do not fatten alike, under precisely similar conditions; that these particular cattle were crowded together in too small a space on unsuitable ground, without a shelter in an exceptionally severe season both as to rain and cold; that they were forced to stand on their feet, unable to lie down and sleep, by reason of the depth of the mud in their pens; that coming to a new climate they had to pass through a process of acclimation; that a disease known as “staggers” was prevailing at the time all over Louisiana, attributable to no particular cause; that the handling and feeding of cattle over which defendants had no control was injudicious.

These various charges were unquestionably supported by evidence, disputed it is true, hut none the less produced from reputable witnesses. We are not prepared to say to what precise extent these alleged charges were shown to be well founded, but we are satisfied that each and every one was more or less sustained. This being the case, we do not see how the plaintiffs could expect to throw either the whole burden of the loss of the venture or any special portion of it upon the defendants, assuming that they had contributed to it and that they would have been legally liable for a share of it had such share been fixed. We do not see how the jury could have reached any other conclusion than that evidenced by their verdict rejecting plaintiffs’ demand.

Defendant has prayed for damages for a frivolous appeal.

These cannot he allowed. Appellant, as a plaintiff, lost his suit in the lower court. We do not think, under such circumstances, damages should he allowed even though the appellate court may think the appeal entirely without merit.

We are of opinion that the verdict of the jury and the judgment thereon, are correct.

The judgment appealed from is hereby affirmed.

Eehearing refused.


author: Breaux, J.

text:
    No. 13,580.
    Pierre Louis Carrierre vs. R. McWilliams, Limited.
    Syllabus.
    In an action for damages, the evidence showed that the machinery of the defendant company had not been entirely completed. The defendant was pres ent while it was being erected and took part in the work of erecting it. While one of the machines of which he had charge as the assistant of the foreman, was being operated, he failed to exercise the care and prudence which, ordinarily, an operative should observe.
    Tiaintiff had been employed sufficiently long to know how to adjust a set-screw on the collar of an horizontal shaft and to know the precaution necessary to be taken in returning it to its proper place when it had dropped out. The evidence shows that with ordinary care and prudence he might have escaped injury.
    One who chooses to perform this duty without applying the clutch or hand lever, who also fails to stop with his work when the substitute for a belt shifter .falls and who holds on to the set-screw after the shaft begins to turn in obedience to the friction of a belt which shifts from a slack to a fast pulley, is not in a situation to render his employer legally liable for the injury received.
    The employe, who is eighteen years of age, has not, on that account alone, a greater right to recover damages for an injury than one of age. I-Ie was old . enough, and had had experience enough, to judge of the danger for himself.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      Oharbonnei & Marrero and William, J. Waguespach for Plaintiff, Appellant.

      Harry H. Hall for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

This is an action for damages arising from an injury received by plaintiff in the year 1898, while at work for defendant in its paint factory.

The amount claimed by plaintiff is five thousand dollars for the loss of four fingers off his left hand and the consequent pain and suffering endured.

When the accident happened, plaintiff was about eighteen years of age. He was employed by the defendant corporation to work in its paint factory and especially in operating certain paint grinding machines and mills, and had been employed at this particular work for about two months. These paint grinders are described as being discs of stone, moved by cog-wheels fastened to a shaft made to revolve by a belt. This belt is shifted from a fast to a loose pulley and in that way the cog-wheels and grinders are stopped.

The following is a cut of the machine:

J1 is the loose pulley and J is the fast pulley. The belt, in order to stop the machine, is shifted from the fast to the loose pulley. When the belt is shifted, the grinder will not work. To shift the belt from the fast to the loose pulley and stop the machine, ordinarily, a belt shifter is used, Consisting of a wooden or iron frame with a slide with holes bored in it in order, after the belt has been shifted, to insert pins or fasteners to hold back the belt and prevent it from slipping back to the fast pulley. The bent of this belt is always to slip back to the fast pulley, and, for that reason, iron pins are used to hold it on the loose pulley, especially when something is being done in the way of repairs or anything else requiring those in charge of these machines to touch any part of the machine that is dangerous, if touched when the machine is being operated. A substitute for this shifter was being used by the defendant, and not the regular shifter.

On the day of the accident, and just before it happened, plaintiff avers, in substance, that he, as was his duty, was grinding paint (the grinder, it follows, was in motion) ; that he realized that there was something unusual in the running of the machine; that he shifted the belt with the appliance used for a shifter in order, as he conceived, to prevent some serious accident or breakage of the machine. It was then that he saw, as he thought, the cause of the jerking or irregular motion of the machine; the jerking and halting- was, he avers, owing to the fact that a set screw attached to the collar on the shaft had fallen out. He says, that the cogs did not join to one another, being loose on the shaft, and this was brought about by the fact that the set screw which held the collar under the small cog-wheel had slipped out. This set screw is fixed on to the collar on the shaft on the left and just below the cog-wheels.

Instead of a belt shifter, the substitutes consisted of a hoard which was placed between two paint barrels (i. e., the end of the board was held between the barrels).

It appears that the machine had, in addition to other necessary appliances, a clutch or brake or hand-lever by which the two cog-wheels were disconnected and stopped. It also appears by the evidence that plaintiff knew how to use this clutch or brake to stop the grinder from running. He had been taug-ht how to throw it off, as before stated, by the foreman. The plaintiff had, at different times, used this clutch to throw the gearing off and on. There were no witnesseá present at the time of the accident. Plaintiff says that the set-screw on the before mentioned collar pulled his hand so that it was caught between the cog-wheels and in that way ho lost four of his fingers. As relates to the shifter, defendant’s counsel stated, in argument, that the-plant was not yet completed and that the shifters were put in about one week after the accident and resulting injury.

The case was tried before a jury. The verdict was found in favor of the defendant. Erom the verdict of the jury, and the judgment of the court, plaintiff prosecutes this appeal.

The work that plaintiff had in hand requires some precaution and care. The operative who is in charge of machinery, while it is in motion, is always more or less in danger of meeting with an accident. It behooves Mm always, within the hounds of reason, to minimize whatever risk of the occupation he has to encounter. If plaintiff was reasonably prudent and careful, the testimony does him great injustice. He had been at work in defendant’s factory a sufficient length of time for him to know enough about the machinery not to expose himself unnecessarily to an accident. The machinery was new, and, while it was being erected, plaintiff was present and assisted in the work. Tie helped to adjust the machine in question to the shaft.

The testimony of the witnesses lead to the unavoidable inference that he, as it were, ran into danger by undertaking, as he did, to adjust the set-screw to the cog-wheel on the shaft.

Plaintiff did not use the clutch which would have greatly lessened the risk of accident.

He says that it was out of repair or difficult to handle. He is not corroborated in this statement, and if it was as he stated he yet would not be relieved from the necessity of proving that he had not, in other respects, become indifferent to the danger in presence of the fact that the weight of the testimony proves the contrary. Plaintiff’s attempt at rebutting defendant’s testimony failed.

Plaintiff sought to show that after the belt slipped! from the loose pulley, as he contends it did, to the fast pulley, immediately the revolutions of the shaft were communicated and felt by all the parts of the machine and that, in consequence, his hand thereby became exposed to the injury he suffered.

An experienced millwright, familiar with machinery and with defendant’s factory, said, as a witness, that the shaft is not immediately placed in full motion. At first the movement is slow, not near its full speed, which is one hundred and twenty-five revolutions to the minute. He stated that there is nothing in the character of the set-screw, when the shaft starts, which prevents one who is attempting to adjust it from letting it go. This witness swore that he had often released his hold on parts of the machinery when put in motion without receiving the least injury.

In giving an account of the accident as a witness, plaintiff said, in substance, that he Sought -to adjust the set-screw with his left hand and while in the act of adjusting it, the board holding the belt on the loose pulley fell on the floor and immediately the shaft rapidly revolved and the set-screw, revolving with it, caught the fingers on his left hand and crushed them. The unfortunáte young man has not succeeded in making it clearly appear, in the eyes of other witnesses who testified upon the subject, why it was, in a work requiring precision, that he used his left hand instead of his right hand. It does seem that, after _ the board used to hold the belt in cheek had fallen to the floor, plaintiff had ample time to withdraw his hand.

The witnesses, except plaintiff, all testify, that if a set-serew falls out of the collar-set on the shaft, it has no such effect on the machine as described by plaintiff; that the machine would not stop, halt, and jerk, making a great noise. This testimony gives rise to the inference that plaintiff sought to adjust the set-screw on the upper cog-wheel, or just above it, and that in thus working, his left hand was caught by the cogs and injured as before mentioned.

One of the witnesses said that plaintiff told him some time after the date of the accident, after he, plaintiff, had recovered from his injuries, that he was screwing the screw on top of the large cog-wheel when his hand was caught, as before stated. The act of putting on and adjusting the screw on the upper cog-wheel presents an entirely different question; one, it seems, from which it cannot be inferred that-the defendant was liable in damages. To another witness, the plaintiff said that the accident was due to his own carelessness.

- But the plaintiff says that he only did, in attempting to adjust this set-screw, what he had seen the foreman and other employees do. We do not infer from the testimony that the foreman and other employees ever attempted to adjust the set-screw in the manner we judge the plaintiff attempted to do the work. This contntion of the plaintiff in this respect, is at variance with the weight of the testimony. An employee eighteen, years of age is not, on that account, entitled to damages, if the evidence shows that hé has not 'been ordinarily careful in handling- a machine in his charge. The duty was not one that a minor, ordinarily careful, was not a proper person to perform.

We have noted that this case was tried by a jury. In due time, after the verdict, an application was made for a new trial. In refusing this application, the judge of the District Court gave for reason that no objection was made, nor exception taken, to the charge; that the ease was submitted to a jury of intelligent men who appeared to act with due deliberation, and that their verdict was unanimous; and that he was not prepared to say that there was error in their finding.

We also have given this case our most careful consideration, and have not found that the defendant can be held in damages. It only remains for us to affirm the judgment.

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


author: Nicholls, C. J.

text:
    No. 13,862.
    State of Louisiana v. P. Pigot.
    Syllabus.
    The Court of Appeals properly declined to take jurisdiction of a case on appeal where the parties have agreed upon the facts and the only question left open for adjudication is whether the defendant, under that state of facts, be liable to a license.
    IN RE. P. Pigot, Applying- for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans.

      James O’Connor for Applicant.
   The opinion of the court was delivered by

Nicholls, C. J.

In his application to this court the defendant in the above cause alleges that he is engaged in the business of keeping a small restaurant at No. 522 Madison street; that he is not engaged in the liquor or bar business, but does serve claret wine with the dinner he serves, for which he charges thirty cents, whether the patron drinks the wine or not; that the attorney for the State Tax Collectors for the Parish of Orleans had obtained judgment against him for the State in the First City Court of New Orleans, for the sum of one hundred dollars on the basis of a bar license; that he had appealed to the Court-of Appeals in accordance with Article 143 of the Constitution of 1898, which makes the Court of Appeals the appellate court in all cases that originate in the First City Court; that the Court of Appeals dismissed his appeal on January 9th, 1901, on the ground that it had no jurisdiction, for the reason that the question involved was one of interpretation of a statute (Act No. 171 of 1898), and refused a rehearing on January 9th, 1901; that it was the duty of the Court of Appeals to have submitted the question of law and jurisdiction involved in accordance with Section 2 of Act No. 191 of 1898, for their instruction; that Article 85 of the Constitution of 1898 gives the Supreme Court exclusive appellate jurisdiction in cases originating in the First City Court, only when an ordinance of a municipal corporation -or a law of the State had been declared unconstitutional, and that Article 143 of the Constitution of 1898 makes the Court of Appeals the appellate court for the First City Court in all cases.

That the refusal of the Oourt of Appeals to exercise jurisdiction in the said cause had worked him a grievous injury, inasmuch as he was prevented from taking' a suspensive or devolutive appeal to the Supreme Oourt from the First City Oourt, more than ten days having elapsed from the rendition of the judgment to the dismissal of the appeal.

His prayer is that a writ of certiorari issue, commanding the sending up of the record in the said cause for review by the Supreme Oourt and for all and general relief.

The cause was submitted to the Court of Appeals for decision on an a greed statement of facts, which the petitioner in this court annexes to his petition. The facts of the case as set out in this statement are those which petitioner claims them to be in his petition herein. ■ The case on motion of the State attorney was dismissed in the Court of Appeals on the authority of State of Louisiana vs. Rosentream & Weis, 52 Ann. 2126.

The only question at issue in this case from its inception was whether the defendant was legally responsible for a license or not. Of course for the determination of that question all the circumstances connected with his business had to be exapiined and determined. The State insisted that up on the state of facts which it could establish, defendant was liable.

Defendant denied that proposition, (State vs. Zurick, 49 Ann. 457). The primary examination and decision was made in the First City Court. The defendant appealed, not to the Supreme Court, but to the Court of Appeals. In that court the parties made an agreement as to all the facts of the case; there was therefore no issue of fact left for that court to determine. The only question left open to it for decision was that of the liability of defendant for a license. That was one which it was incompetent to decide. The appellate tribunal for persons upon that issue is the Supreme Court.

The Court of Appeals correctly declined to act upon it, and dismissed the appeal. Its . action should properly have been tested under our supervisory, not our revisory power. This application, for the reasons assigned herein, and in State ex rel. Lyons vs. Court, 49 Ann. 1221; State vs. Rosenstream & Weis, and the decisions referred to in that case, is hereby refused.