author: LeBLANC, J.

text:
    No. 727
    First Circuit
    McNEESE v. RISTON & PRIDGEN
    (March 3, 1931. Opinion and Decree.)

      M. R. Stewart, of Lake Charles, attorney for plaintiff, appellee.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendants, appellants.
   LeBLANC, J.

Plaintiff sues the defendants for the sum of $173.62 less a credit of $37, for hauling some 34,000 feet of logs during the month of June, 1929, at an alleged contract price of $5 per thousand feet.

The defense is one of full and complete settlement of all accounts between the plaintiff and defendants, arising out of a contract entered into on June 17, 1929. Two documents, one in the form of a sale of seven mules, a log-wagon and harness to the defendants, signed and executed by the plaintiff, for all amounts due by him, and the other, a receipt therefor signed and executed by the defendants, both dated June 17, 1929, are filed in evidence in the record.

On objection duly made, the trial judge at first, in the absence of any allegation of fraud or error, restricted the parties to the written contract of settlement, but thereafter, because, as he states, the case seemed to resolve itself into an issue, as presented by the answer, as to whether the hauling of certain logs had been included in the settlement, permitted the introduction of evidence on this' point. Out of a lot of conflicting testimony on this issue,, he came to the conclusion that the hauling of the logs by plaintiff after the time of the signing uf the agreement on June 17, 1929, had not been included in the terms of their settlement, and he was therefore entitled to recover for that part of his work less an amount paid by the defendants for labor. The judgment does not so state, but it appears that the district judge took an average day’s haul which amounted to $27.50 and deducted $10.50 which the defendants paid for the drivers, and rendered judgment based on these figures.

The defendants appealed and plaintiff answered, asking for an increase in the amount of the judgment to the sum he had originally prayed for.

Had we to rely entirely on the plaintiff’s own testimony, the confusion we find ourselves in after reading it, might lead us to a different conclusion than that reached by the lower court. A careful consideration of the whole record, however, satisfies us, as it did the district judge, that the hauling of the unsealed logs after the signing of the agreement was not intended to be included therein and that plaintiff is entitled to some relief.

We think that the manner in which the court arrived at the amount, in view of the difficulty in ascertaining it with any degree of exactitude, does substantial justice between these parties, and that the judgment should stand as it is.

For these reasons the judgment of the lower court is affirmed at the appellant’s cost.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,502
    Orleans
    SCHORR v. NOSACKA
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    Wm. J. Hopper, of New Orleans, attorney for plaintiff, appellee.
    Jos. J. Ritayik, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

In November, 1926, the plaintiff in this case, John M. Schorr, intending to bid upon a contract for the furnishing and installation of certain fixtures and interior work for the Algiers Bank & Trust Company, presented a plan of the proposed undertaking to the defendant, Joseph Nosacka, and obtained a verbal bid upon the grille work shown upon the plans. A few days thereafter plaintiff was awarded the contract by the bank and sublet the grille work to the defendant, obtaining confirmation of his verbal bid as appears by the following:

“Nov. 24, T926.
“Mr. J. M. Schorr,
“Algiers,
“Dear Sir:
“I propose to furnish and install and erect in position the grille work and grille cage for the Algiers Bank & Trust Co. according to plans and specifications. You are to furnish me full details and measurements of the work. All for the sum of $525.00 (five hundred and twenty-five dollars).
“Respectfully submitted, Jos. Nosacka.”

A discussion arose between Schorr and Nosacka as to the extent and character of the contract between them, with the resut that Nosacka did not execute his contract, and Schorr, after putting him in default, had the work done by the Michaels. Art Bronze Company of Covington, .Ky., at a cost of $2,137.16. He thereafter brought this suit against Nosacka for the difference between that sum and $525, the amount of his bid.

There was judgment in plaintiff’s favor as prayed for, and defendant has appealed.

We have given this case unusual consideration because of our conviction that the wide discrepancy between the cost of the work to the contractor, and the amount for which defendant had undertaken it, was due to a mistake or misunderstanding of some sort, which we had hoped might result in relieving defendant of responsibility in the premises; but after a thorough review of the record, we are forced to conclude that the judgment of the trial court was correct.

The defendant in this case undertook to “furnish and install and erect in position the grille work and grille cage for the Algiers Bank & Trust Co. according to plans and specifications.” He admits, having seen the plans before having presented his bid, but denies ever having seen the specifications. Why, under these circumstances, he should have worded his bid in this manner, we do not know, for the plan which he admits having seen has been offered in evidence and it plainly shows what was contemplated. Nosacka says that though the plan called for bronze grille, he explained to Mr. Schorr that he did not do bronze work but only iron work, and that though the plans called for square bronze wire he only fabricated flat iron wire. There is a certain symbol in the shape of a rectangle pierced by an arrow which appears on the plan near the outline of the grille work which several witnesses experienced in reading plans say plainly indicates square and not flat wire. But Nosacka says the symbol was confusing and meant nothing to him. He also says that when he examined the plans before making his bid he informed Schorr that he could not furnish bronze grille but would substitute iron grille instead. This is. denied by Schorr, the plaintiff; but whether the' statement was made by Nosacka or not, it is inconsistent with his subsequent written confirmation of his bid, which plainly obligates him to furnish grille work, and cages according to plans and specifications, which call for bronze work and not iron. Nosacka is shown to be a man of much experience in his line of work, having been “born into the business,” as he says. We cannot understand how he could have formulated a bid, such as the one presented in this ease, without qualifying it if he intended to except any part of the work called for by the plans and specifications. If, as he claims, he did not see the specifications, his action is the more remarkable on that account. His bid was given to Schorr prior to his having obtained the contract from the bank, and presumably Schorr’s bid to the bank was influenced by Nosacka’s estimate of the work which he undertook to do.

It appears, therefore, that if Nosacka made a mistake in his bid, it was the result of carelessness from the effect of which we can discover no legal relief.

The damages sustained by plaintiff as a result of defendant’s breach of his contract have been fully established; consequently, and for the reasons herein assigned, the judgment appealed from must be affirmed.

JANVIER, J., having been of counsel, takes no part.


text:
    No. 740
    First Circuit
    CITY OF HOUMA v. BERGER
    (January 26, 1931. Opinion and Decree.)

      Ellender & Ellender, of Houma, attorneys for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   LeBLANC, J.

The city of Houma, in the enforcement of a paving lien against Chas. W. Berger, obtained a judgment in the district court, on June 18, 1928, which operated only as a judgment in rem against his property. In satisfaction of such judgment, the property was seized and offered for sale, at public auction, during the month of October, 1928. Harold Daspit, being the last and highest bidder for the sum of $650, became the adjudicatee at that sale, but did not accept title, nor did he comply with His bid. Upon the refusal of the sheriff and the clerk of court to cancel a, minor’s mortgage resting on the property, Daspit, almost two years after, to-wit,- in June, 1930, brings this proceeding by rule to compel its cancellation by the clerk of court, claiming that the same was pre-empted and prescribed before he became the adjudicatee of the property. The district court issued a rule to show cause and appointed Claude Ellender, attorney at law, as curator ad hoc to represent the minor absentee, Martha Berger Smith, defendant in rule. The curator ad hoc and the clerk of court joined issue by answering the rule. The other defendants made no appearance.

On the day of sale at public auction, the certificate of mortgages bearing on the property which had been prepared by the clerk of court and ex-officio recorder of mortgages was read before the property was offered' for sale and Daspit’s bid was made with full knowledge of all recorded incumbrances and with reference thereto. The agreed statement of facts, on which the matter comes before us, bears a notation, interlined by the district judge, that he never tendered the amount of bis bid. Holding that the adjudicatee’s duty was to comply with his bid, and the matter of adjustment and cancellation of mortgages was one with which he was not concerned, the lower court recalled and dismissed Daspit’s rule, and he has appealed.

The issue presented is the one of the right of Daspit, the adjudicatee who has not complied with his bid, to compel the cancellation of the mortgage. To enjoy that right it strikes us that be must have more than a mere naked adjudication by the sheriff. He must have a complete adjudication which vested title in him. The question then resolves itself into one of ownership or title.

Daspit contends that the adjudication di itself conveyed to him a perfect title of which he cannot be divested because of his mere failure to pay the, purchase price. He relies upon article 690 of the Code of Practice and article 2608 of the Revised Civil Code. He also refers to article 689 of the Code of Practice which provides that “If the person to whom the property has been adjudged shall refuse to pay to the sheriff the price of the adjudication * * * the sheriff shall expose to sale anew the thing seized, and adjudge it to another person,” and contends that a failure to pay does not amount to a refusal as contemplated under that article. We are referred to a number of decisions which in effect support the proposition thát, where there has been only a passive violation of the obligation to pay the price of adjudication, it is necessary that a demand be first made on the adjudicatee, and that-he be placed in default before an action to divest him of his title can be maintained. Doll v. Kathman, 23 La. Ann. 486; McCall v. Irion, 41 La. Ann. 1126, 6 So. 845. Here, however, it must be remembered, that the demand by Daspit is one which is dependent on his ownership of and a title to the property, and in presenting it, he makes allegations in two different articles of his petition which would make of his failure to pay the price of adjudication an • active violation of his duty in that respect, and would render a demand on him therefor a vain and useless formality. In article 5 he alleges that he is “entitled to have the mortgage certificate cleared upon paying the purchase price,” and again, in article 8, he avers that “he can not safely comply .with the .adjudication, until the question of the rank of mortgages, resting upon the property as shown by the mortgage certificate is determined by the court.” These are judicial admissions on his part that he has not paid, and declarations which can hardly be construed in anything else than a refusal to pay the price of the adjudication. Moreover, the agreed statement of facts, signed by his counsel, recites specific-' ally that “Daspit refused to accept title and pay his bid, unless a first recorded mortgage, granted 18 years previously by defendant in favor of his mihor children, was cancelled.” That further admission Seems to us. to destroy all the. effect of the argument made by drawing a distinction between a failure to pay the bid and a refusal to do so. Under the record in this case there was clearly a refusal.

It is unnecessary to go into any lengthy discussion of the effect of a refusal to comply with one’s bid in an adjudication of property in judicial sales. It is. in the sense only that it is in the power of the adjudicatee to comply with the terms of his bid to become the owner by indefeasible title that the adjudication is “the completion of the sale” within the meaning of C. P. art. 690 and R. C. C. art. 2608. Upon his refusal to pay, title does .not pass. Washburn v. Green, 13 La. Ann. 332; Losee v. Sauton, 24 La. Ann. 370; Nichols v. Bryan et al., 143 La. 291, 78 So. 562. Indeed, that seems, to be the clear effect produced by the provision in article 689 of the Code of Practice which makes it mandatory on the sheriff, upon refusal of the adjudicatee to pay the price of adjudication to “expose to sale anew the thing seized and adjudge it to another person.” The most recent decision in which we find the matter here under consideration discussed is the case of Capital Building & Loan Association v. Northern Insurance Co., 166 La. 179, 116 So. 843, 845, from which the following excerpt is taken:

“Nor will it do to say in a judicial sale that the mere adjudication by the sheriff operates a transfer of the property from the seized debtor to the adjudicatee at such sale. Like the promise of sale, the adjudication is a sale in the sense that it gives the right to either the adjudicatee or the ■ seizing creditor to compel compliance with the terms of adjudication.
“The question here presented has been up frequently for consideration, and this court has invariably held that where the purchaser for cash refuses to comply with, the terms of sale by paying the price, he is considered as never having been owner.”

As we have found that, as a condition precedent to his maintaining the demand presented by this rule, Daspit must show ownership of, or title to, the property, and this, according to the authorities cited, he has not done, the judgment of the lower court recalling and dismissing the rule was correct, and it is therefore affirmed.


author: McGREGOR, j.

text:
    No. 3889
    Second Circuit
    DONLIN v. PIERCE ET AL.
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    S. B. Pressburg, of Alexandria, attorney for defendants, appellants.
   McGREGOR, j.

During the month of August, 1923, plaintiff, Walter Donlin, loaned the defendant, H. D. Pierce, the sum of $225. This loan was a matter of emergency and was a great accommodation to the defendant and his family. At the time of the loan the plaintiff was rooming with the defendant, paying for the room at ’ the rate of $15 per month. Plaintiff swears that he was paying this rent in advance at the time of the making of the said loan in the month of August, 1923, and that he paid for the month of September in advance in the same manner; that on the first of October, 1923, it was agreed that he would not pay rent in cash any more but that the amount of the room rent each month would be credited and the loan thereby reduced or paid to that extent: Plaintiff evidently was not in the city of Alexandria all the time but was absent from the city at varying intervals of time.

Defendant claims that plaintiff was in the city and occupied the ■ room some of each month beginning with the month of September, 1923, and ending with the month of June, 1924, and that no rent was paid in cash after the loan was made, and that therefore the month of September was credited on the loan and not paid in cash as contended by the plaintiff. The defendant testifies that the plaintiff took meals at his house on the average of six each month during that period and that these meals were worth at least fifty cents each. Plaintiff denies this contention and defendant’s 'testimony on the point is so general, vague and indefinite we find it impossible to allow defendant’s reconventional demand for this item of board except to the extent of $7.25, which plaintiff admits was due for coffee. The defendant also claims that quite a large sum was paid out by him for the plaintiff during a period of several months for plaintiff’s laundry. Absolutely no record was kept of this, either as to dates or amounts. This testimony is also so general, vague and indefinite that we cannot allow credit for same. Defendant claims credit also for the sum of $7 for long distance messages sent and received over his telephone by the plaintiff. This item is admitted by the plaintiff and credit is therefore given for same. Subsequent to the year 1924 the pláintiff apparently left the city of Alexandria, or at least never returned to the residence of the defendant any more and he at once began to demand the payment of the balance due him for the loan of $225 mentioned above. These demands appeared to have been frequent and insistent. No denials of the indebtedness were ever made by the defendant. On the contrary, in a number of letters he promised the plaintiff that he would pay as soon as he could. Finally, after having exhausted all his efforts to collect the balance due him on this claim, the plaintiff brought this suit. Credit was allowed in the suit for the sum of $100, without itemizing what this was for, and demand was therefore made in the said suit for the sum of $125 with legal interest from judicial demand.

On the trial of the case the defendant reconvened and set up the claim that the plaintiff was indebted to the defendant in the sum of $20.50, and asked judgment in reconvention for that amount. The claims of the. defendant against the plaintiff were made up of the following items:

Ten months’ room rent from September, 1923, to June, 1924, at $15 per month, or $150;
Long distance telephone messages, $7;
Laundry paid for, $58.50;
Meals served, $30, all of which totaled $245.50.

The plaintiff, in itemizing the credits to which he admits the defendant is entitled, shows the following:

Room rent, $57.50;
Long distance telephone, $7;
Coffee, $7.25; or a total of $71.75.

In arriving at the amount of credit due the defendant for room rent the plaintiff allowed for fractions of months, which we think he should not have done. If he was in the room for part of any month, he owed rent for the entire month. He admits being in the room during all or part of the months of September, October, November, December, April and May, and no others. He claims he paid for the month of September in cash, but the defendant’s wife is positive that that month was credited on the loan. This is a reasonable inference and we prefer to think that she is correct in her statement. But in her statement as to the large sum advanced for laundry and that charged for meals, we cannot but believe that she is in error. If these two items were being charged the defendant should have kept some kind of record and not trusted to memory and guess as to the amount due. If these two items were true the plaintiff would be in debt to defendant as is claimed, and he would have known it all along and would have had an effectual remedy and defense against the harassing letters and telegrams from the plaintiff demanding payment of the loan. Instead of claiming credit for these various sums he wrote a number of letters admitting some indebtedness and promising to pay unconditionally. We think the claim of having paid the loan and claiming a balance due him was an afterthought on the part of the defendant. To our minds the plaintiff has been extremely liberal with the defendant. Ordinarily the loan would have been represented by a note bearing eight per cent interest fron\ date, and possibly ten per cent attorney’s fees for collection, but the plaintiff required no note and his claim is for interest at five per cent only, from judicial demand.

We cannot tell how the judge of the lower court arrived at the amount of his judgment. Giving credit for six full months’ room rent, we find that defendant is entitled to a credit of $104.25, leaving the sum of $120.75 due the plaintiff.

For the foregoing reasons it is ordered, adjudged and decreed that the judgment of the lower court be amended so as to give judgment in favor of the plaintiff against the defendant for the sum of $120.75 with interest at the rate of five per cent per annum from November 19, 1928, the defendant to pay all costs of both courts, and the judgment as thus amended is affirmed.


author: McGREGOR, J.

text:
    No. 3905
    Second Circuit
    SOUTHERN GAS LINE, INC., v. DIXIE OIL CO. ET AL.
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)

      Polk & Robinson, of Alexandria, attorneys for plaintiff, appellant.
    Robert A. Hunter, of Shreveport, attorney for defendants, appellees.
   McGREGOR, J.

The Southern Gas Line, Incorporated, claims from I. R. Packard and Dixie Oil Company, Incorporated, the sum of $1,018.19, balance due on open account for gas sold and delivered by the plaintiff to defendants, which gas, it is alleged, was used by the defenuants in the drilling for and production of oil under a certain oil and gas lease owned by them in the parish of La Salle, this state. It is further claimed and alleged by plaintiff, the Southern Gas Line, Incorporated, that it has a lien and privilege on the said lease, together with all the machinery, apparatus, and accessories thereon or thereto appertaining or belonging, as a furnisher of necessary supplies and materials to and in the drilling operation of the said lease. Suit was brought by the plaintiff against the defendants in solido in order to enforce the lien and privilege claimed. The defendants filed an exception of no cause or right of action, which was sustained by the lower court. It is from this action that this a,ppeal. is. being prosecuted.

While the question involved may not have been raised heretofore in the exact form in which it' is raised in this ease, there is ample authority in this state to decide it without having 'to resort to' the decisions of other state's. ' It is apparent that, If the 'plaintiff had any lien as claimed in its' petition, ‘ it is solely under Act 298 of 1926. There is no doubt as to this act applying to oil and gas wells, and, if the plaintiff has any lien, it is to be found in it. This is admitted by counsel for both sides, so the only question to be determined is whether gas furnished, for fuel in the drilling of a gas or oil well is “material” furnished “for the erection, construction, repair or improvement of immovable property” within the purview of this act. It is significant that in paragraph 6 of its petition the plaintiff asserts its lien “as a -furnisher of supplies and materials to and in the drilling operation of said lease.” (Italics ours.)

The law relied upon by plaintiff makes no mention of supplies but confines itself to materials.

Counsel for plaintiff in his brief says:

“The nearest approach to jurisprudence of this state upon the subject is found in the case of Red River Construction Company v. Pierce Petroleum Corporation, 165 La. page 565, 115 So. 752. That case is easily differentiated from the case at bar. In the first instance because it is a case relating to public works, and in connection therewith the Supreme Court uses the following language:
“ ‘In this state laws in derogation of common right must be strictly construed and cannot be extended beyond their precise terms of this Court or statutes of the kin4 under consideration here—Statutes lohieh are designed to hold public authority having the work done responsible under certain circumstances for the debts of the contractor'. * * *’ ”

Counsel then says:

“So from this we see that the Court draws a distinction between statutes relating to work done by public authorities and other statutes.”

We. cannot agree with this statement. Counsel has misquoted and misconstrued the citation. It not only does not draw the distinction contended for, but it practically •negatives any such distinction as claimed by counsel. The first sentence of the citation is as follows:

“In this state laws in derogation of common right must be strictly construed and cannot be extended beyond their precise terms.”

Then follows the statement:

“Of this character are statutes of the kind under consideration here—statutes which are designed to hold the public authority ha\ing the work done responsible under certain circumstances, for the debts of the contractor, and to hold the contractor responsible for the debts of the subcontractors, and to substitute the bond required for the security which is otherwise granted a claimant under their provisions.”

It is contended that, since the case from which the above citation is taken deals with the construction of public roads under public contract, the reasoning used, the interpretation placed on the words used in the statute, and the conclusion reached are different from what they should be in cases involving “the erection, construction, repair or improvement of immovable property” under private contract. It must be admitted that liens are in’ derogation of common right, and since they are, they must be strictly construed. That is the principal statement set forth in the citation made by counsel for plaintiff from the case named above. Then, after laying this down as a general proposition, the court proceeds to say, “Of this character are statutes of the kind under consideration here. * * *” We think that, if Justice Rogers had been deciding the case at bar, his words would have been as follows:

“In this state laws in derogation of common right must be strictly construed and cannot be extended beyond their precise • terms. Of this character are statutes of the kind under consideration here—statutes which are designed to hold the owner or party having the work done responsible, under certain circumstances, for the debts of the contractor and to hold the contractor responsible for the debts of the subcontractor and to grant a lien to a furnisher of material for the erection, construction, repair or improvement of any immovable property and to substitute the bond required for the security which is otherwise granted a claimant under their provisions.”

We argee with counsel for defendant when he says that the decision in the case from which the above citation is taken placed this issue beyond controversy, but counsel for plaintiff says:

“The second dissimilarity between the cited case and the case at bar is tnat the cited case relates to a statute reading in part as follows:
“ ‘Materials furnished in the construction, etc., * * * of such road.’
“Whereas, the statute - under consideration herein, as the Court will note, relates to materials furnished for improvements of immovable property, and the Supreme Court in its decision rested its edecision upon the theory that the statute contemplated, by the use of the word ‘in,’ that the material used should become a component part of the work done. Whereas, as- thé Court will note, in the case at bar, the statute upon which plaintiff relies refers to materials furnished for an improvement, and not in the construction.”

We think this is a distinction without a difference. What would be the difference in meaning between “material furnished in the construction of a road or building” and “material for the construction of a road or building”? None. In all cases the material furnished for any project must of necessity be used in the project. We therefore see nothing in the contention as to there being such a wide difference between the use and meaning of the word “in” in the statute construed by the court in the case cited and the word “for” in the statute relied upon herein.

But, to make our position clearer, that part of section 1 of Act 298 of 1926, which gives the lien in question, reads as follows :

“* * * shall have a lien for the payment in principal and interest of such work or labor performed, or materials, machinery or fixtures, furnished, and the cost of recording such liens, upon the land and improvements on which the work or labor has been done, or materials, machinery or fixtures furnished. * * *” (Italics ours.)

The use of the words “on which” as used in this statute in connection with the word “for” is certainly the same as the use of the word “in” in Act 224 of 1918. So we conclude that there is, no difference between materials furnished “in” the construction of a public road and materials furnished “for” the drilling of an oil well.

Counsel for plaintiff cites the case of John H. Murphy Iron Works v. United States Fidelity & Guaranty Co., 169 La. 163, 124 So. 768, and says that it “is analogous to the casa at bar.” We think he is correct in this, but in that case the court rejected a demand which we think is similar to the demand in the case at bar. In that case the court said:

“The question in dispute is whether a claimant, who furnishes or does labor and supplies material for the repair of a dredge-boat and the machinery thereon, and pays the freight and express charges on the material furnished, while the dredgeboat is being used to excavate the canal, has a right or cause of action against the surety on the contractor’s bond; the cause of action, if any, having arisen under Act No. 224 of 1918, prior to any amendment thereto.”

Then the court proceeds to say:

“The question presented is not a new one in this state. It has been, in effect, twice decided by this court—once in the case of Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752, and once in the case of State v. Smith, 167 La. 301, 119 So. 56. The theory upon which these cases were decided was that the work done or the material furnished must have entered directly into and must form part of the improvement constructed, to give the claimant a cause of action against the surety on the bond furnished. It is not sufficient that the work be done in repairing machinery used in constructing the improvement, or that the material furnished be used in such repairs, for in such case neither the work nor thp material enters directly into the improvement. As plaintiff’s claim does not consist of work done and material furnished, which entered directly into the improvement, plaintiff discloses no cause of action.
“Plaintiff seeks to differentiate this case from the two cases cited, on the theory that the work, in this instance, was of such a nature that ‘nothing went into it, but everything came out of it.’ Plaintiff is mistaken, even if this distinction could be deemed a differentiation. Doubtless no material entered into the construction of the canal, but it is impossible to conceive how any improvement can be constructed without something entering into it. In this in stance it is manifest that the work done in excavating the canal went directly into it. However, be that as it may, the differ', entiat'ion is no differentiation at all. It simply amounts to an effort to show that it is unnecessary that the work done, or the material furnished, entered into, or was incorporated in ,the body of the improvement constructed, which is in direct conflict with the two decisions which it is sought to differentiate. It is also urged by plaintiff that the construction placed by us on the act of 1918 in the Red Rivey Construction Company cáse, and followed in the Smith case, is too restricted, and is not in accord with the jurisprudence in other states. In our view, the construction placed on that act in those casgs is not unreasonable, or too restrictive, and should remain undisturbed. As to that construction being out of accord with the jurisprudence in other states, that position was fully considered by us in the Red River Construction Company case.”

So we see that this John H.- Murphy Iron Works case is analogous to the case at bar in practically every particular. In it the plaintiff sought to prove a lien for labor and supplies furnished for the repairs on a dredge boat and the machinery thereon used in the excavation of a canal. The court held that the furnisher of these items of labor and material had no lien and that they were not covered or guaranteed by the surety bond required by the statute. By the same process of reasoning we conclude that gas or gasoline or any other kind of fuel used to propel or run the machinery of the dredge boat would not be protected by any lien and would not be guaranteed by the surety bond provided for by the statute.

The excavation of a canal and the drilling of an oil well are parallel cases under Act No. 298 of 1926. Both are constructed by machinery—the former by a dredge boat, and the latter by a drilling rig. Suppose that in each case the machinery with which the work is done is bought on a credit by the contractor. The furnisher of this machinery used in the construction or creation of this work contracted for would be protected by the vendor’s lien, but not by the lien created by the act relied on in the case at bar. Suppose in each case the contractor should rent the machines. It could not be said that the owners, of the machines would have the lien provided by this statute for the payment of the rent. Suppose the machinery in each case should be operated by mule power. It could not be said that the furnisher of food for the mules would have this lien. Neither would a merchant in the case at bar have a lien for the food supply furnished to the men who worked on the drilling rig that is operated by the energy produced by the consumption of the gas furnished by the plaintiff. Counsel resorts to a very ingenious- line of argument in saying that:

“It is patent that nothing goes into the drilling of a well, except the energy or labor required for the removal of the dirt therefrom, or the making of the excava-, tion. In the instant case, gas was a material which created the energy that dug the well. The work or labor was done or performed and the well dug oy means of energy created through the consumption of the gas supplied by the plaintiff. In other words, the gas itself entered directly into the well through and by means of the energy created by it. Its character was changed in the operation from a physical state to energy. The change in its character does not affect the nature of the opera-” tion.”

• If this line of reasoning were adopted in every case, there would be nothing used directly or indirectly in connection with the drilling of an oil well that 'did not have a lien and privilege under the act, and the result would be that the fact of a lien would give no advantage. It would serve but to emphasize the correctness of the legal principle that liens are stricti juris. The John H. Murphy Iron Works case is not authority for this line of reasoning. That case holds that all work or labor or material that goes into any construction or improvement on immovable property is protected by the lien urovided for in the act. It does not hold that the lien covers or guarantees the payment of the materials or tools or instrumentalities with which this work is performed, nor does it cover the food supply consumed by the laborers which is transformed in their bodies into muscle and energy with which they are enabled to perform the work, nor does it cover gas or any other kind of fuel that is burned in a boiler and gives power to the machinery to do the work.

Counsel is also wrong in presuming that nothing goes into the drilling or construction of an oil well that is protected by the lien provided for in the statute “except the energy or labor required for the removal of the dirt therefrom, or the making of the excavation.” All the easing, the derrick, the pumping apparatus, and all machinery of every kind that is necessary for the equipment of a completed oil well is covered and protected by this lien, for this is the plain letter of the statute. So counsel in his zeal to protect the gas that is consumed in the boiler of the drilling rig denies and destroys the lien that protects the material, machinery, or fixtures furnished for the completed oil well.

Counsel for plaintiff cites numerous common-law and text-book authorities. These can be multiplied on both sides ad infinitum. For instance, he cites 18 R. C. L. 918, sec. 48, in support of his contention that a lien should be allowed for “consumable supplies such as fuel.” This same section, in the preceding sentence, is authority for the statement that “coal furnished to generate steam in the boilers or engines used by the contractor” is not protected by a lien. We think all these arguments and authorities, are well answered and thoroughly discussed and disposed of in Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752. On page 567 et seq. of 165 La., 115 So. 752, 753, in discussing this matter the court said:

“It is contended on behalf of the relator that the language of the statute, liberally; construed, is * broad enough to embrace* within its scope materials which, though not forming a constituent or permanent part of the work, are incidental to the execution of the contract. Numerous cases from other jurisdictions are cited in support of the contention. In these cases, hpwever, the statute, contract, and bond interpreted are more extensive in their terms than our legislative act. In general, they cover material furnished * * * ‘in the prosecution of the work,’ ‘in the execution of the contract,’ or guarantee the payment of all claims against the principal ‘arising out of the performance’ of the contract. Even in the jurisdictions where the doctrine of liberal construction prevails, we do not find the rule to be as comprehensive as the one the relator would have us apply in construing the laguage of the statute in the case at bar. Thus, in Standard Oil Co. v. Detroit Fidelity & Surety Co. (1927) [24 Ohio App. 237] 157 N. E. 418, the issue was presented and determined under a statute reading, ‘for materials furnished in the construction of the highway.’ There the court said:
" ‘Proceeding to construe the language in question, and giving the assumed the benefit of a liberal construction thereof, we are first met with the proposition whether the gasoline and oil actually and physically enter into the composition of what is known as the construction of the highway improvement. Is the gasoline or oil an element or ingredient of the improvement? Are they elements of material, physically connected with the formation of the structure constituting the public 'improvement? The answer necessarily is in the negative. A disintegration of the elements composing the improvement would not reveal the presence of gasoline or oil, and consequently the gasoline and oil do not enter into the construction of the improvement, because they form no part thereof.’
“In the ease of Pierce Oil Co. v. Parker, 168 Ark. 400, 271 S. W. 24, which was also a suit for oil and gasoline furnished a contractor under a statute somewhat broader in its terms, the court used the following language, viz:
“ ‘Coal and oil while used as fuel for portable engines and machinery used in construction work, are merely an incident in the operation of the machinery, and partake of the same characteristic as it does. In other words, they are at least one step further removed from the actual work of construction, and do not have any immediate connection with the structure at any time * * * Courts must stop somewhere in the constiuction of these statutes. Otherwise repairs on the machinery used in the construction or the improvement, and the diminished value of the machinery and tools used in such construction, will be deemed to be lienable claims. If matters which are only remotely connected with the construction of the public improvement should be held to be lienable, the protection of the bond to the class intended by the statute would be greatly impaired. To the same effect, see City of Alpena v. Title Guaranty & Surety Co., 158 Mich. 678, 123 N. W. 536, City of Philadelphia v. Malone, 214 Pa. 90, 63 A. 539, and S. B. Luttrell & Co. v. Knoxville, L. & J. R. Co., 119 Tenn. 492, 105 S. W. 565.

“In the case of Gary Hay & Grain Co. v. Carlson F. & D. Co. (1927) [79 Mont. 111] 255 P. 722, involving a statute similar to the one under consideration here, the court refused to hold the surety liable for oil and gasoline. The court had occasion to distinguish between the terms ‘materials’ and ‘supplies’ and defined material to be ‘the substance matter of which a thing is made.’ It said, quoting from ample authority, that:

“ ‘Following these definitions, the general rule is that, when the bond mentions only material, the surety is liable only for the payment of that which has gone into and becomes a part of the completed work.’ ”

If the Legislature had intended that gas used in connection with the drilling of an oil well should be protected by the lien provided'for in the statute, it would have so declared in unmistakable terms. It has so declared in matters' involving the construction, erection, or repair of public buildings, public roads, or public works of any character. The act covering the Red River Construction Company case, as stated above, is Act No. 224 of 1918. Since that statute was enacted, the Legislature has passed Act No. 203 of 1924, which extended lien to the furnisher of food for use and consumption by mules or other live stock used and employed in the construction, erection, or repair of public roads and public works of any character. And Act 271 of 1926 extends this same lien still further so as to include all “material or supplies furnished for use in machines used in the construction, erection, alteration or repair” of “public buildings, public roads or public works of any character." The same Legislature that passed Act No. 271 of 1926, passed Act No. 298 of 1926, the one under which plaintiff is seeking to establish its lien, and the two acts were signed by the governor and promulgated on the same day. If it had been the intention of the Legislature to establish the lien contended for, it would have done so in Act No. 298 of 1928, in plain and unmistakable language, just as it did in Act No. 271 of 1926, dealing strictly with “public buildings, public roads or public works of any character.”

We therefore hold that, since the gas furnished by the plaintiff to the defendant is not material furnished which entered directly into the oil well, the furnisher thereof can have no lien as provided by Act No. 298 of 1926, or any other existing law or codal provision of this state.

For the reasons assigned, the judgment appealed from is affirmed; the costs of this court and of the lower court to be paid by the plaintiff.


author: WEBB, J.

text:
    No. 3886
    Second Circuit
    MOREAU v. WOMAN’S BENEFIT ASSOCIATION OF MACCABEES
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)
    T. A. Carter, of Alexandria, attorney for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

In this action, plaintiff, Louis Moreau, beneficiary under a certificate issued by defendant, Woman’s Benefit Association of Maccabees, a fraternal benefit society, on the life of plaintiff’s wife, Mrs. Lucia Moreau, who died on August 30, 1929, sought to obtain judgment for the amount stipulated to be ©aid, or one thousand dollars, with legal interest thereon from demand; and plaintiff appeals from a judgment rejecting his demands.

Plaintiff alleged the facts first stated, and further, that the insured had never been suspended; that remittances had been made in payments of rates, etc., of date March 1 and April 10, 1929, and that a receipt was sent her acknowledging full payment of all rates, etc., as shown by checks and receipts attached and made part of the record; that demand was made for payment, which was refused, and defendant had attempted to. return the amount remitted, as shown by post office money order attached which is of date September 3, 1929.

In answer, defendant admitted that the certificate had been issued, as alleged, but denied that the insured had not been suspended, and alleged that the insured had failed to pay her dues for the month of December,- 1923, and that she was automatically suspended on the 20th day of that month under the provisions of the certificate; defendant further alleged that .the remittances were made to one of the officers of the local review, who received the checks on March 5 and 12, 1929, as the agent of the insured, and not as the agent of defendant; defendant denied that such remittances and any action ' taken relative thereto by the local officer, constituted a payment of dues or had the effect of a waiver of the forfeiture, or of reinstating the insured, who had not been examined by a physician and reinstated, as required by the laws or rules of defendant, and that the insured was not in good health at the time the remittances were made and could not have been reinstated under the by-laws of the association.

The defendant association consists of a central lodge domiciled at Port Huron, Michigan, where the association was chartered, and local lodges, which are referred to as the “Supreme Review” and “Local Reviews.” Mrs. Moreau was a member of the local review domiciled at Alexandria, Louisiana, where she made application for the benefict certificate on January 29, 1915, which was issued on the same date, being signed by officers of the supreme review and an officer of the local review.

In the application for membership, the insured stipulated that she would be bound by all laws of the association in force at that time or thereafter adopted, and a lih;e provision is written in the certificate, and insured further stipulated that the neglect to pay the monthly premiums as provided by the laws of the association would vitiate the certificate. Among the provisions of the by-laws or rules of the’ association referred to, appellee cites section 353 which provides in substance that the premiums or stipulated rates shall be due on the first of each month, and must be paid to the financial secretary of the local review on or before the 20th day of the month; and section 360 provides that a benefit member failing to pay the premium or rate as provided, suspends herself, and shall stand suspended without notice' or action of any officer of all rights of benefit membership and benefits of her review and of the association. Appellee also refers to section 368, which provides for the reinstatement of benefit members under suspension for non-payment of rates for more than two months following the month in which the premium or rate was due.

The evidence conclusively established that the insured did not pay the monthly rate, premium or dues for the month of December, 1928, and appellant apparently concedes that, under the provisions of section 360 of the laws or rules of the association referred to above, the liability of defendant on the certificate, and the rights of the insured as a' member of the association were suspended.

The evidence also established that the remittances were made on the date alleged to' the "Financial Secretary” of the local review, and that a receipt, which was written in black ink by the financial secretary was issued, which reads as follows:

"When you see the receipt written in red ink you will know you have been delinquent.
WOMAN’S BENEFIT ASSOCIATION
No.....................
W.-B. A. No. 10
Alexandria, La., 4/10, 1929.
Received of Lucia Moreau
Certificate or Card Fee.........................$11.40
Monthly Rate No. One year.
Review Dues ............................................ 3.00
Total ........................................................$14.40
Next Payment Due
Date: Dec. 1, 1929.
Nettie Turrentine,
(Financial S ecretary) ”

On the other hand, the preponderance of the evidence shows that the financial secretary of the local review, some time prior to March 1, 1929, had advised the insured that she was suspended, and that after she received the first remittance she had sent the insured a "medical blank” to be filled out, -which w,as not returned, but the insured sent the secretary the second remittance, requesting a receipt, which was sent, as shown above; and appellant urges that under the provisions of section 368 of the by-laws of the association, which reads as follows:

“Reinstatement after Third Month.—A benefit member under suspension for nonpayment for more than two months following the month in which such monthly rate or other liability was due may be reinstated, by complying with the following requirements, within six months following the month in which such liability was due;
“(1) She shall deposit with the financial secretary the amount of money due at the time of. her suspension, together with the amount which has become due since that time, such amounts to be held by the financial secretary as a deposit to await the action of the supreme medical examiner.
“(2) She shall furnish at her own expense an application for reinstatement with medical examination from a qualified medical examiner, a full and detailed report of which shall be sent to the supreme medical examiner, and shall pay to the financial secretary a fee of twenty-five cents which shall be forwarded to the supreme secretary as the fee for the supreme medical examiner.
“(3) The supreme medical examiner shall notify the financial secretary of the review of her approval or rejection of such application for reinstatement .with medical examination. If the application for reinstatement is approved, the member shall be reinstated without action by the review, and the amount on deposit shall be turned into the proper funds. If the application for reinstatement is disapproved, the financial secretary shall return to the applicant all the money deposited by her, and the suspension shall be permanent. The applicant for reinstatement shall not be entitled to share in the benefit fund, or the privileges of the Association, before her application for. reinstatement with medical examination has been approved; provided, that such member may, if she prefer, reinstate by paying thereafter the rate at her attained age last birthday at date of reinstatement instead of paying arrears,”

and the evidence stated, there was not any intention to waive the medical examination or forfeiture.

Appellee urges that under the section of the by-law quoted, the financial secretary was compelled to accept and hold the funds remitted to her by the insurer, and that while she should not have issued the receipt, that she acted as the ordinary person would have done under the same circumstances; and appellee urges that the receipt was conditional and did not in any manner mislead the beneficiary or the insured, who both knew it was essential that the insured should' pass a medical examination and that they both knew that insured could not do so at the time the receipt was .issued.

As stated, plaintiff pleaded that the financial secretary was the agent of the insured, and in effect that defendant was not bound by any action of the financial secretary relative to the remittances made by the insured, or any action taken with reference thereto; and while there are several provisions in the by-laws which if literally construed, might be held to have relieved defendant of any action of the local review or their officers, unless ratified, the evidence shows that all of the transactions had by the insured with the supreme review were through her local review, and that the financial secretary of the local review was the only person authorized to collect or receive payment from the members; and as appellee has not referred to such special defense in his brief, we assume it has been abandoned. Wagner v. Supreme Lodge, 128 Mich. 660, 87 N. W. 903; Schlosser v. Grand Lodge, etc., 94 Md. 362, 50 A. 1048; Fraternal Aid Ass’n v. Powers, 67 Kan. 420, 73 P. 65; Supreme Tribe of Ben Hur v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 Am. St. Rep. 262; Supreme Lodge, K. of P., v. Withers, 177 U. S. 260, 20 S. Ct. 611, 44 L. Ed. 762; Pringle v. Modern Woodmen, 76 Neb. 384, 113 N. W. 231.

Relative to the contention that the action of the financial secretary did not in any manner mislead either the insured or plaintiff’s beneficiary, appellee urges that they both had knowledge that the insured had been suspended and could not be reinstated unless the insured passed a medical examination, as the section quoted so states; and as the evidence established that the financial secretary had sent the insured a form on which the medical examination should be made out, which was not returned to the financial secretary, and further, that the evidence established that the insured was ill and could not have passed the medical examination.

The evidence does not establish that the insured could not have passed a medical examination. The only evidence relative to that question, was a statement made by plaintiff to the financial secretary after the death of his wife, that his wife was ill when she was suspended, and when she received notice, which latter date is not shown; and conceding that the insured was ill on the 20th of December, 1928, when it is claimed the certificate was suspended, does not show that she was ill on the date the remittances were made; and assuming that the insured knew from the by-laws of the association, or should have inferred from the fact that the financial secretary had, prior to sending the receipt, sent her a form for a medical examination, it does not follow that the receipt was accepted as being .conditional or dependent on the insured passing a medical examination, or that the receipt was so intended.

There is not anything whatsoever in the receipt which indicates that it was conditional, but on the other hand, the receipt very clearly shows that the insured had paid all amounts due by her from the date of suspension to the date of the receipt, as well as ail amounts which would become due from that date to December 1, 1929.

There is not any suggestion that the supreme review was without power to waive either the medical examination, or suspension of the certificate, and considering the amount first remitted and accepted was greatly in excess of the amount the insured was in arrears, and the amount which became due while the certificate was suspended, and that the amount had been retained for some months and until after the death of the Insured by the financial secretary as the agent of defendant, we are of the opinion that the action of the financial secretary is sufficient to warrant it to be held that the suspension of the certificate was waived and that the insurer was estopped from urging the suspension of the certificate in defense of the demand. Trotter v. Grand Lodge, 132 Iowa 513, 109 N. W. 1099, 7 L. R. A. (N. S.) 569, 11 Ann. Cas. 533.

It is therefore ordered that the judgment appealed from be avoided and that plaintiff, Louis Moreau, have and recover judgment against defendant, Woman’s Benefit Association of Maccabees, in the sum of one thousand dollars, with legal interest from judicial demand, and all costs of suit.


text:
    No. 3946
    Second Circuit
    MATTHEWS v. KELLOGG LUMBER CO., INC.
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)
    J. B. Nachman, of Alexandria, attorney . for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

This action to recover compensation, under the Employers’ Liability Statute (Act No. 20 of 1914, as amended), for disability alleged to have resulted from an accidental injury sustained by plaintiff, Joseph Matthews, on August 14, 1929, while engaged in the service of defendant, Kellogg Lumber Company, Incorporated, was filed on May 30, 1930, and on trial, June 19, ¿930, judgment was rendered rejecting plaintiff’s demands, from which he appeals.

It is conceded that defendant was engaged in a hazardous business, within the meaning of the, statute, and that plaintiff was engaged in defendant’s service on the date of the alleged accident; that following the alleged accident, plaintiff worked until August 28th, and thereafter from September 2nd to September 5th, and that on September 9th, plaintiff Was referred to Drs. Simmons, Rand & Barber, who found that he had a disease of the kidneys, for which they treated him about two. weeks, when plaintiff was removed to a hospital where it was found that he had an abscess of the hip joint, for which an operation was performed by Drs. Simmons and Rand, on September 24, 1929, from which plaintiff had not fully recovered on February 28, 1930.

The theory on which plaintiff bases his right to recover is that on the date alleged, he sustained an accidental injury of the right hiip joint, which caused the development of the disease found to exist on September 24, 1929; that although the operation relieved plaintiff of the disease, the disease had progressed to such, a stage that he was permanently disabled to do work of any reasonable character; while defendant contends that the evidence failed to establish that plaintiff sustained any accident, or if so, any injury of the hip' joint, which had resulted in the disease, and defendant further contends that the evidence failed to establish that plaintiff was permanently disabled or the extent of his disability.

In support of his case, plaintiff testified that on the date alleged he, together with two other workmen, one of whom was J. T. Lane, were loading lumber under the supervision of L. L. Hardige, foreman; that he attempted to handle a plank of the dimensions 36 inches wide, 1% inches thick and 14 to 18 feet long, and weighing about 150 pounds; that the plank slipped and struck him on the leg and hip, causing him to experience pain in his hip, which gradually increased until he was forced to quit his work and undergo treatment, as hereinabove stated; plaintiff further testified that he continued to carry lumber of the dimensions stated until he quit work, and that he had informed the foreman of the accident about eight days thereafter, and W. Kellogg, the manager of the mill, and C. W. Coleman, an employee of defendant, who had on the instructions of the manager, referred plaintiff to Drs. Simmons, Rand and Barber, on the 9th of September, and that he had at that time informed the physicians of the accident.

Plaintiff called J. T. Lane, who stated that he had noticed that plaintiff limped for some time prior to the date he quit work, and also three physicians, who had examined plaintiff about the time of the trial, who expressed the opinion that the disease was caused by an injury of the hip bone and who also stated that at the time of the trial plaintiff was unable to perform manual labor which would require him to stand for long periods of time, and that plaintiff would be disabled to the extent of approximately seventy-five per cent.

The evidence on behalf of defendant established that none of the workmen who are engaged in the same work with plaintiff and who were within a very short distance of plaintiff at the time plaintiff claimed the accident occurred, had noticed any accident; that plaintiff had not handled any lumber of the dimensions stated on August 14th or since, and all of the parties whom plaintiff stated that he had notified of the accident denied that he did so. But on the other hand, Kellogg, Coleman and Drs. Simmons and Barber stated that plaintiff complained only of a pain in his back, and the physicians stated that tjtjiey had especially interrogated plaintiff relative to whether or not he had sustained any injury, and that he had informed them he had not. The physicians also stated that they had examined plaintiff when he was treated by them and did not find any indication of an external injury, but that they found his kidneys diseased, for which they treated him for two weeks, when plaintiff began to complain of pain in his hip, when he was removed to a hospital where it was found that plaintiff had an abscess of the hip joint, which they were of the opinion was not due to injury.

The record does not show the manner in which the accident was claimed to have occurred; although it appears that plaintiff when on the witness stand, Illustrated the manner in which he claimed the accident occurred, and indicated the places on his body where the plank struck him, which, two of the physicians, one called by plaintiff, and the other by defendant, stated could not have been correct.

Passing any question relative to whether or not the accident could have occurred in the manner illustrated by plaintiff, the record as presented here shows that the only evidence which tends to show that an accidental injury of the hip bone was sustained by plaintiff is the statement of plaintiff that at the time of the accident he experienced a pain in his hip, which had increased in intensity until some fourteen days thereafter, when he was disabled to work, and which finds some support in the testimony of Lane. But considering the evidence which shows that defendant had not handled any lumber of the approximate dimension or weight of that claimed to have been carried by plaintiff, and the evidence showing that he worked fourteen days after the alleged accident; that he had not advised any one of the five persons whom he testified he had notified of the accident; that he denied having sustained any injury and did not complain of any pain • in his hip until he had been under treatment of physicians for two weeks, who treated him for a pain in his back, which may have resulted from a disease of the kidneys, with which the physicians found he was suffering on September 9th and for which they treated him, affects plaintiff’s credibility, as well as to disprove the plaintiff’s statement that he sustained any accidental injury of his hip joint.

Appellant urges, however, that the physicians who treated plaintiff had made written reports in conflict with their testimony. The reports referred to were made after the operation, to the insurance company with whom plaintiff carried health insurance, and clearly refer to plaintiff’s condition existing at the time the reports were made, and we do not find any conflict in the testimony of the physicians with the reports; but aside from the fact, which is conceded, that the physicians treated plaintiff for a disease of the kidneys for two weeks, the evidence shows that after the physicians had examined plaintiff and before they began treating him, they informed Kellogg that plaintiff was not suffering from any injury, which supports their statements relative to the statement made to them by plaintiff, which is also supported by the history of the case as shown by the hospital records at the time plaintiff underwent the operation.

While it may be that plaintiff did sustain an accidental injury qf his hip joint on the date alleged, although he denied having sustained an injury as above stated, and did not complain of any pain in his hip until more than thirty days after the accident, it is conceded that he carried the burden of proof to establish that he received such an injury and to show that the injury received caused the disability for which he claims compensation.

Prom our review of the record, we are of the opinion plaintiff failed to establish either that he had sustained an accidental injury or that the disease with which he suffered resulted from an injury, and it is Unnecessary to determine the extent of plaintiff’s disability.

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


author: TALIAFERRO, J.

text:
    No. 2937
    Second Circuit (Second Division)
    J. W. FURRH MERCANTILE CO. v. JETER
    (April 9, 1931. Opinion and Decree.)
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff seeks to recover judgment against the defendant for $221 under the following alleged state of facts, to-wit:

(1)That plaintiff loaned a Bain Special wagon to one C. H. Hensly in the fall of 1925, of the value of $140, in order to enable said Hensly to move a crop of cotton to gin, and that said Hensly without legal right or justification delivered said wagon to defendant who is in possession of same.

(2) That plaintiff held a recorded crop lien and pledge against the corn produced by said Hensly during the year 1925, and that he delivered to defendant eighty-one barrels of the corn covered by said lien and pledge, of the value of $81, which has been consumed by the defendant; that at the time of delivery of said corn to defendant said crop lien was in full force and effect and attached thereto; that immediately following delivery of said corn and said wagon by said Hensly to defendant, petitioner’s agent notified him of petitioner’s ownership of said wagon and lien on said corn, but that defendant refused to recognize such rights, had consumed the corn and was using said wagon.

(3) In the alternative, plaintiff alleges that should the court hold that he is not entitled to recover the value of the wagon converted by defendant, but entitled to the wagon itself, in that event plaintiff should be awarded judgment for $90, being the amount of depreciation in value of said wagon while being used by said defendant.

Defendant denies practically all of the matters of fact alleged upon by plaintiff, and, further answering, says:

That plaintiff is engaged in a general mercantile business and handles wagons and farm implements; that said Hensly was a customer of plaintiff and owed him a large account; that said Hensly had rented certain property from defendant for the year 1925, but that he had been notified that he was no longer desired as a tenant, and, “as said Hensly was leaving he sold and delivered a wagon to defendant, which had been used for some time,” and at the same time defendant purchased some corn from Hensly which was stored in a building on defendant’s land, mixed and confused with other corn of like and similar nature.

Defendant admits that he ■ paid $115 for the wagon and $81 for the corn, and further alleges that he knew nothing of the claims or rights of plaintiff in and to said purchased property; and that he bought in good faith, the seller having apparent ownership.

Defendant specially pleaded that plaintiff was estopped from asserting that the said wagon was not sold and delivered to said Hensly by reason of the facts set forth' in the answer. Judgment was rendered by the district court in favor of plaintiff for $115, presumably the value of the wagon in controversy. Defendant has appealed. Plaintiff has not answered the appeal, but in brief asks that said judgment be affirmed.

We are satisfied the lower court rejected plaintiff’s demand for the value of the corn sued for and found defendant liable for the value of the wagon which he admits purchasing from Hensly for $115, and as no amendment of the judgment is prayed for by appellee-, but an affirmance thereof, we shall confine ourselves solely to a consideration of the controversy over the wagon.

The evidence is virtually uncontradicted that plaintiff loaned Hensly the wagon at the time and for the purpose alleged. One reason for doing so was to enable him to haul his cotton to the gin and another was that by so doing Hensly would gin the cotton at plaintiff’s gin.

When plaintiff became aware that Hensly had moved away and that defendant had purchased the corn and was in possession of the wagon, he sent his agent to defendant to notify him of his ownership of the wagon and lien against the corn. Defendant declined to pay for the corn or release the wagon.

Defendant contends that as plaintiff delivered the wagon to Hensly, and permitted him to retain possession of it with all the indicia of ownership, that he is estopped to gainsay that Hensly did own the wagon, or did have the right to deliver good title thereto to an innocent purchaser. In support of this position, the case of Norwalk Iron Works v. West (Manning’s Unreported Cases) is cited. Only the syllabus of this case appears in the book, page 171, and is as follows:

“However indisputable were the intentions of the owner not to surrender his ownership, when he has surrendered the possession and exhibited the person who has that possession to the world as one having the power to dispose of the property, he will not be heard against an honest buyer who had acted upon the confidence imprudently reposed by the owner.”

We have no criticism to make of the doctrine laid down in the foregoing, but the facts of that case, as reflected from the syllabus, are not the same as those of the case under consideration. There is no evidence in the record tending in the least to show that plaintiff told any one that the wagon belonged to Hensly, or held him out to the world as being such owner, or that he was invested with power to sell same.

Defendant also urges that where one of two innocent persons must suffer, the loss is placed on him whose negligence made it possible for the loss to occur. Citing Louisiana Digest, vol. Ill, p. 98, par. 34.

We assume the negligence defendant would impute to plaintiff lies in the fact that Hensly was permitted to retain possession of the wagon for some time after the harvesting season had ended. This, as subsequent developments proved, was imprudent from a business standpoint, but not negligence of such character to effect a change in ownership of the wagon, or invest Hensly with the power to transmit good title to a purchaser, however innocent; nor was it sufficient to estop plaintiff from asserting ownership to the property against a bona fide purchaser.

The judgment appealed from is atfirmed.


author: DREW, J.

text:
    No. 3141
    Second Circuit
    ALCOCK v. FUTRELL ET AL.
    (April 9, 1931. Opinion and Decree.)
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    D. C. Scarborough, of Natchitoches, attorney for defendants, appellants.
   ON MOTION TO DISMISS APPEAL

DREW, J.

This case was regularly fixed for trial and notice of fixing served upon counsel for both appellant and appellee. Counsel for appellee has filed a motion to dismiss the appeal for the reason that the record is not complete, there being no evidence or statement, of fact in the record and no assignment of error or other means by which the correctness of the judgment can be examined. The record contains some documentary evidence consisting of accounts and letters, etc., all of which are meaningless without the transcript of oral evidence explaining them. Therefore, this court has no way of passing upon the correctness of the judgment of the lower court.

If the evidence adduced on the trial of the lower court was not transcribed, it was then the duty of the appellant to secure a statement of facts from the court and file same in the record, which he has not done; and it is not shown that he has made any attempt to secure same. We have nothing on which to base an opinion and the appeal will have to be dismissed.

Burt v. Smisson, 2 La. App. 758; Fletcher v. Ward, 2 La. App. 1; U. S. Fidelity & Guaranty Co. v. Houlton, 11 La. App. 303, 123 So. 415.

The appellant has made no appearance in this case by brief or otherwise, and we presume he does not contest the application for dismissal and has abandoned his appeal.

It is therefore ordered, adjudged and decreed that the appeal taken herein be dismissed, at appellant’s cost.


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    No. 3087
    Second Circuit (Second Division)
    DEVOE & RAYNOLDS CO., INC., v. TURPIN AND McCAIN
    (April 9, 1931. Opinion and Decree.)
    Joe B. Hamiter, of Shreveport, attorney for plaintiff, appellee.
    Ernest L. McCain, of Shreveport, attorney for defendant, appellant, in propria personae.
   TALIAFERRO, J.

Plaintiff brought this suit in the city court of Shreveport against Guy E. Turpin and Ernest L. McCain, who formerly composed the Caddo Sign Company, a co-partnership, dissolved, to recover judgment in solido for $184.57, alleged to be due on open account for goods and building material sold said co-partnership before its dissolution.

Personal service of process was had on defendant McCain and domiciliary service was ha'd on defendant Turpin.

Turpin answered the suit admitting liability to the extent of $134.57, and reconvened against plaintiff asking for judgment for $50 for “balance due on an account for certain services performed, sign painting, etc., which work was done and performed by Caddo Sign Company for plaintiff shortly after said company purchased the goods and materials under the account sued on.” (Par. 7 of answer.)

Defendant McCain did not appear, nor answer, in the lower court, save to take appeal, and he has not made appearance, nor- has he filed brief, in this court.

Judgment was rendered by the lower court against McCain for $184.57. It is silent as to Turpin, save to reserve to plaintiff its rights against him, notwithstanding he admitted liability to the extent of $134.57.

MOTION TO DISMISS APPEAL

Plaintiff filed motion to dismiss the appeal taken by McCain on following grounds:

(a) There was neither a petition filed, nor a motion made in open court for an order of appeal.
(b) That no order was ever granted by the trial judge authorizing the appeal.

The allegations of the motion to dismiss are corroborated by an affidavit of the clerk of the city court attached to the motion, notwithstanding the record in the case, certified to by said city clerk, contains the following minute entry from the city court’s records, viz.:

“MAY 24, 1927.
“Motion for a devolutive and suspensive appeal to the Circuit Court of Appeal filed by defendant. Appeals granted and devolutive bond - fixed at $5.00 and suspensive bond according to law. Return date set for June 27, 1927.’’

After filing of the motion to dismiss, plaintiff, appellee, answered the appeal asking that same be decreed by this court to be frivolous and that appellant be condemned to pay statutory damages on that account; otherwise that the judgment appealed from be affirmed. This position is reaffirmed in plaintiff’s brief. It is clear the motion to dismiss has been abandoned and it is denied.

ON THE MERITS

The petition filed in the lower court does not disclose the nature of the partnership which was composed of the two defendants, operating under the firm style of “Caddo Sign Company”; that is, whether there was solidarity of obligation arising from the nature of the business the firm was engaged in, but it is alleged that the defendants were indebted in solido to plaintiff and the prayer follows the allegations.

There is no note of evidence in the record and in the absence of proof to the contrary we must assume that the city judge had sufficient evidence before him to warrant judgment condemning defendant McCain for the entire amount sued for.

As stated before, defendant McCain did not appear in the trial court nor file answer prior to rendition of judgment against him. He perfected appeal to this court by giving bond but beyond this has not identified himself with the case. We are satisfied this appeal was taken .primarily for delay and if so has served the purpose well. Appellant will be condemned therefor. Code Prac. art. 907; Vieron v. Knapp, 9 La. App. 12; La. Digest, vol. 1, page 512.

For the reasons herein assigned, the judgment in favor of plaintiff, appealed from, is affirmed; and it is further ordered, adjudged and decreed that plaintiff, appellee, recover further judgment against the defendant Ernest L. McCain in the sum of 10 per cent of the judgment appealed from, and-.hereby affirmed, for frivolous appeal.

It is further ordered that appellant pay costs of suit.


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    No. 3575
    Second Circuit
    PRATER v. PORTER ET AL.
    (February 26, 1931. Opinion and Decree.)
    Henry W. Bethard, Jr., of Coushatta, attorney for plaintiff, appellant.
    Nettles & Stephens, of Coushatta, attorneys for defendant, appellee.
   McGREGOR, J.

In this case the plaintiff,

Emma Hall Prater, alleges that she is the sole and only heir of the deceased Hardy Hall; that she “has been sent into possession, as the fee simple owner, of all of the property of whatsoever nature and kind and wherever situated, rights, titles, actions and credits of the said Hardy Hall, etc.” She alleges further that the said Hardy Hall, on July 9, 1924, twenty days prior to his death, when his death was momentarily expected, was induced fraudulently by the defendants Jane and Willie Hall, to sign a donation to them of all his property, said donation being disguised in the form of a sale; that this property consisted of 120 acres of land worth $2,100, and the crop thereon, worth $1,000. '

On February 4, 1928, Jane and Willie Hall conveyed 80 acres of this 120 acres to defendant A. T. B. Porter for a consideration of $1,300 cash, and on February 29, 1928, the said A. T. B. Porter mortgaged the same to the Bank of Coushatta for $500.

It is contended by the plaintiff that, since the transaction between the deceased Hardy Hall and the defendants Jane and Willie Hall, on July 9, 1924, is null because of fraud, the said Jane and Willie Hall had no title to the land, and having none, they could not and did not transfer a valid or legal title to defendant A. T. B. Porter on February 4, 1928; and that, therefore, the defendant Porter could not and did not grant a legal mortgage for any sum to the Bank of Coushatta.

It is further contended that, since the two above named deeds were invalid and illegal and since no titles were therefore legally conveyed, the defendants Jane and Willie Hall are indebted to the plaintiff not only to return the 120 acres of land to her but also are indebted to her in the sum of $1,000 for the crop on the said land and in the sum of $800 as rent on the said land while it was in their possession; and that the defendant A. T. B. Porter is indebted to her in the sum of $160 for rent on the 80 acres for the time that it was in his possession.

This suit was brought to annul the two alleged sales together with the conventional mortgage, and to secure moneyed judgments against the defendants, and judgment was prayed for (1) to declare plaintiff the owner of the 120 acres of land, valued at $2,100; (2) to annul and declare void the sale from Hardy Hall to Jane and Willie Hall; (3) to declare null and void the sale from Jane and Willie Hall to A. T. B. Porter; (4) to declare null and void the mortgage from A. T. B. Porter to the Bank of Coushatta; (5) for $1,800 against Jane and Willie Hall and for $160 against A. T. B. Porter.

From the foregoing it will be seen that the ■ aggregate amount involved in this suit is as follows:

1. Value of land.._____________________________________$2100
2. Value of crop_____________________________________ 1000
3. Value of rent...................................... 960
Total .........................................................$4060

An exception of no cause of action was filed by the defendants A. T. B. Porter and the Bank of Coushatta, which exception was tried and sustained, and the suit as to them was dismissed. A preliminary default was asked for and granted as to the defendants Jane and Willie Hall, but no further action was taken.

From the judgment of the court sustaining the exception of no cause of action filed by defendants A. T. B. Porter and the Bank of Coushatta, the plaintiff prosecutes this appeal.

From the foregoing it will be seen that the amount involved in this suit is the sum of $4,060. It may be contended that the issue between the plaintiff and the defendants A. T. B. Porter and the Bank of Coushatta involves less than $2,000 and that, therefore, the appeal has been properly lodged in this court. No issue as to the jurisdiction of this court has. been raised by any of the parties, but under the authority of and by virtue of the discretion granted to us by Act No. 19 of 1912 we find that this appeal should have been to the Supreme Court.

It is clear that primarily the matter in dispute in this suit is the title to 120 acres of land, valued by the plaintiff at $2,100, and a moneyed judgment for $1,960 additional. If we were to decide this case our judgment would adjudicate upon a matter in dispute over a value exceeding $2,000. State v. Judges, 42 La. Ann. 589, 7 So. 632.

For the reasons assigned it is ordered that, upon the appellant paying the cost incurred as the result of the present appeal having been brought to this court instead of the court having jurisdiction ratione materiae, the case be transferred to the Supreme Court, under the provisions of Act No. 19 of 1912, within thirty days.


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    No. 3608
    Second Circuit
    CITY OF SHREVEPORT v. VIRGINIA-CAROLINA CHEMICAL CO.
    (February 26, 1931. Opinion and Decree.)
    B. F. Roberts, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

This action was brought by the City of Shreveport against the Virginia-Carolina Chemical Corporation to recover judgment for the cost of laying a sidewalk on Claiborne avenue, on which defendant’s property fronts, together with the recognition of a lien and privilege on the property. There was not any question raised as to the validity of the proceedings under which the sidewalk was ordered to be laid, or relative to the correctness of the cost of same. But a portion of the street on which the sidewalk was laid had been transferred to the City of Shreveport hy the Virginia-Carolina Chemical Corporation, under a written instrument which contains the following stipulations:

“That said property is dedicated to the said City for the benefit of the public, to be used for a street and for street purposes, and its dedication is made to the said City for such purposes under the following express terms and conditions, to-wit:
“The said street is to be opened up, graded, paved, curbed, and otherwise completed by the City of Shreveport, or others in conjunction with it, without any cost, charge, or expense, directly or indirectly, whether by assessment or otherwise, against the Virginia-Carolina Chemical Corporation, which is to be held entirely harmless against any cost, expense, or damage in connection with the opening up, paving, grading, and curbing of said street, which is to be done wholly at the cost and expense of said City,”

under which defendant urged it was not liable for the cost of laying the sidewalk, and that its property was not subject to the lien and privilege asserted, praying for judgment rejecting plaintiff’s demands, and ordering the lien which had been recorded against the property canceled and erased. On trial judgment was rendered in favor of defendant, as prayed for, and plaintiff appeals.

There was not any attack made on the validity of the contract in the pleadings, and in presenting the cause here, there is not any suggestion by either of the parties that any such question should be considered; but each of the parties states that the sole question presented relates to the construction of the contract. Appellant stating in its brief that the sole question is whether the clause, “graded, paved, curbed, and otherwise completed,” includes laying the sidewalk, which also appears to be the position of appellee, who, however, contends that parol evidence should have been admitted to show that the officers of the city understood that, under the stipulation, the sidewalk would he constructed at the expense of •the city.

Confining our decision to the question presented by counsel, thus assuming that the contract was valid, and that plaintiff was obligated to open up, grade, pave, and otherwise complete the improvement of the street without cost to defendant, the only reason suggested why its obligation did not include laying the sidewalk is that the usual course of improving the streets was to open, grade, and pave the roadway, and construct the curbing, prior to laying the sidewalks, and that plaintiff having done such work prior to ordering the sidewalk to be laid, had complied with its obligations.

The sidewalk is a part of the street and the improvements of the sidewalk, as well as the roadway of the street, is under the control of the municipality. We are therefore of the opinion that the obligation of plaintiff to open up, grade, pave, and otherwise complete the street, included the sidewalks as well as the roadway .of the street, and that the city did not comply with the condition by merely improving the roadway. There is not anything in the record which indicates that defendant waived any of the conditions under which the dedication was made or that it had accepted the work done by the city in improving the roadway as fulfilling the conditions under which the dedication was made, or as relieving plaintiff of paying the other cost incident to completing the street or laying the sidewalk.

It is therefore not necessary that we should consider whether or not defendant should have been permitted to introduce parol evidence over the objection of plaintiff to explain the written act of dedication.

The judgment is affirmed, at appellant’s cost.


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    No. 3723
    Second Circuit
    BURNS v. MOSAIC TEMPLARS OF AMERICA
    (February 26, 1931. Opinion and Decree.)

      T. H. McEachern, of Homer, attorney for plaintiff, appellee.
    H. S. Davis, Jr., of Houston, Texas, attorney for defendant, appellant.
   ON THE MOTION TO DISMISS

McGREGOR, J.

The basis of this motion to dismiss the appeal is the failure of the defendant and appellant to file the transcript within the time prescribed by law. The return day fixed by the court was October 8, 1929, whereas the transcript was filed on October 12, 1929, or one day more than three calendar days after the return day. The law in such cases is so well settled that it is unnecessary to discuss it. One of the latest decisions on the point is Hotard v. Consolidated Companies, Inc., 14 La. App. 670, 130 So. 662.

" The transcript, not having been lodged and filed in this court within three days after the return day, but on the fourth day, came too late and the appeal should, therefore, be dismissed.

For the reasons assigned the appeal herein is ordered dismissed at the cost of the appellant.


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    No. 3697
    Second Circuit
    DARNELL v. HERRIN OLDSMOBILE CO.
    (February 26, 1931. Opinion and Decree.)
    R. D. Fuller, of Shreveport, attorney for plaintiff, appellant.
    Robert L. Garrett, of Shreveport, attorney for defendant, appellee.
   DREW, J.

On June 19, 1929, judgment was rendered in the lower court dismissing plaintiff’s suit as of non-suit; on June 22nd the judgment was read, signed and filed; and on June 29tli oral motion was made by plaintiff for orders of devolutive appeal to this court. The appeal was granted and made returnable here on August 12, 1929, the devolutive bond being fixed at $50. On July 24th, the appeal bond was filed, and the transcript delivered to the clerk of this court by the clerk of the district court on August 9, 1929, but same was not filed in this court until August 30, 1929, for the reason that the filing fee to cover the cost of appeal was not deposited with the clerk of this court by appellant until that day.

Appellee has filed a motion to dismiss the appeal, based on the failure of appellant to return the transcript into this court on the return day, or within' the three days of grace allowed thereafter. The clerk of the district court fully complied with his duties by delivering the transcript to the clerk of this court on or before the return day, and the failure to file the transcript is due entirely to the fault of appellant in not depositing with the clerk of the district court or the clerk of this court the filing fee to cover cost of appeal.

This court in the case of Nelms v. Hankins Brothers, 5 La. App. 733, and in the case of Webb Johnson v. Oil City Bank, 14 La. App. 698, 130 So. 854, in which latter case opinion was rendered on November 7, 1930, has passed directly on this point.

It is therefore ordered, adjudged and decreed that the motion to dismiss the appeal be sustained and that the appeal be dismissed at appellant’s cost.