text:
    No. 11,679
    Orleans
    ANTOINE v. SAXTON HARDWARE CO., INC.
    (April 1, 1929. Opinion and Decree.)

      M. C. Scharff, and Chas. W. Kehl, of New Orleans, attorneys for plaintiff, appellant.
    Henry and Cooper and A. M. Suthon, of New Orleans, attorneys for Peerless Weighing Machine Company.
    Milner and Porteous, of New Orleans, attorneys for Saxton Hardware Company, Inc., defendant, appellee.
   JANVIER, J.

Plaintiff alleges that she was injured as a result of stumbling over the platform portion of a penny-in-the-slot weighing machine. She claims that, because of a crowd which had assembled to watch a demonstration that was going on in the show-case of one of the defendant corporations, she was prevented from seeing the machine and that, in walking along the sidewalk, she tripped over it.

The machine was owned by the Peerless Weighing Machine Company and had been placed on the sidewalk in front of the 'store of Saxton Hardware Company, under an arrangement by which the earnings were to be divided between the two corporations on a basis agreed upon between them.

Plaintiff claims that the placing of the machine on the sidewalk was negligence, as it constituted an obstruction such as is prohibited by city ordinance. Our attention is not directed to the particular ordinance which it is alleged prohibits the practice of placing such weighing machines on the streets, hut we are told in oral argument that the ordinance refers in general terms to obstructions, and does not specifically mention weighing machines or things of that kind.

Defendants contend that it is not negligence to maintain on the sidewalk a weighing machine of the type of the one in question, but that, even if it is negligence to do so, the proximate cause of the accident was not the presence of the weighing machine, but was the absence of care on the part of plaintiff herself in not looking where she was walking.

The trial court rendered judgment in favor of the defendant.

The machine consists of a platform and an upright portion. The upright was set close against the building and the platform, which projects about five inches above the ground and which is about sixteen or eighteen inches wide, extends out from the upright portion about two feet. The whole machine is painted with white enamel paint and is quite conspicuous.

It was shown that a permit for the location and maintenance of the machine had been obtained from the city authorities. From this it would appear that the ordinance referred to as prohibiting in general terms obstructions on sidewalks did not apply to devices of this kind; because the same authority which, by general ordinance, prohibited obstructions, by special permit allowed the machine in question and, in fact, allowed innumerable other similar machines to be placed in various localities all over the business section of the city.

The evidence as to how the accident happened is conflicting, but seems to preponderate against plaintiff’s theory that she tripped or stumbled over the platform portion of the machine. We are of the opinion, after a reading of the testimony, that the true fact is that plaintiff was attempting to weigh herself on the scale, when one of the bundles she was carrying slipped from her arms, and that, in attempting to reach for this bundle, she fell. She was a very stout person and could not control her balance as well as a younger or more slender woman could have done. Since, on this point only a question of fact is involved, and since the trial court determined that question in favor of defendants, and since we believe that that decision was not only not clearly erroneous, but, on the contrary, was well justified by the evidence, we will follow the well-known rule and not reverse the trial court.

Even if we felt, however, that plaintiff’s theory as to the facts is the correct one, we could not award her a judgment, since, to walk over such a machine as the one in question, even admitting that the placing of it on the sidewalk was negligence, constituted contributory negligence and bars recovery. Such an accident could not happen to a person using the sense of sight, as a pedestrian is always bound to do.

In Burke vs. Tricalli, 124 La. 774, 50 So. 710, the Supreme Court was dealing with a case of a person injured by stumbling over a small, wooden gutter, or drain, placed by the property owner across the sidewalk. The court held drains of that character, although they did constitute, to a certain extent, obstructions in the sidewalk, were usually found in many places in the city and that, as they could be seen by persons using the sense of sight, no recovery could be had by a person stumbling over one of them.

It is a well-known fact that weighing machines such as the one in question are found on almost every block in the business section of New Orleans, and it is also manifest that they can be easily seen by any person in possession of the sense of sight. It seems to us, therefore, that the doctrine announced in the Burke case, to which we have referred, is authority for us to hold that a person stumbling over such a machine in broad daylight cannot recover for any injuries which may be sustained.

Plaintiff’s explanation that she could not see the machine on account of the crowd is not convincing, because if there was a crowd which prevented her seeing it, the same crowd would have prevented her coming into contact with it.

Under either state of facts; whether she fell while standing on the scale, or tripped over it while walking, no recovery is authorized by law.

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


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2657
    Second Circuit
    DEVEREAUX & ASHBY v. ROCHESTER
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Charles M. Roberts, of Minden, attorney for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   WEBB, J.

This is an action to recover a broker’s commission.

Plaintiffs, Devereaux & Ashby, allege that defendant, Marshall Rochester, had employed them to find a purchaser for certain real estate, owned by defendant, at the price of sixty-five hundred dollars, with the understanding that plaintiffs would receive five per cent of the price as their commission, and th.at they had introduced a prospective purchaser who had agreed to pay the price, and that the offer had been accepted by Rochester, who however, subsequently refused to consummate the sale.

Defendant answered pleading the general denial, and, on trial, judgment being rendered in favor of plaintiff, defendant appealed.

Pending the appeal, Devereaux died, and his heirs having been made parties plaintiff, filed a motion to dismiss the appeal, on the ground that the transcript had not been filed in this court on or before the return day; and we first consider the motion to dismiss the appeal.

Plaintiffs have not filed any brief in support of the motion to dismiss, and it not appearing that the failure to file the transcript was due to the fault of the appellant, but to the fault of the cleric of the District Court, whose duty it was to file the transcript, the motion to dismiss the appeal is refused. Stockbridge vs. Martin, 162 La. 601, 110 So. 828.

On the merits, while the evidence is conflicting as to whether or not defendant had agreed to pay plaintiffs a commission, we find that the preponderance of the evidence established that defendant had listed the property with plaintiffs under the agreement as alleged and that plaintiffs had introduced to defendant J. 'B. Lee as a prospective (purchaser, who was shown the property by Rochester, and who offered to take the property at the price above stated, which was accepted by Rochester, and that each of the parties deposited with plaintiff, Devereaux & Ash-by, a check of one hundred dollars to bind the trade, but that on the day the sale was agreed to be consummated, Rochester refused to transfer the property as his wife would not consent, and that Rochester asked for time to attempt to persuade his wife, which was acceded to by Lee, the prospective purchaser, and Rochester, having obtained the consent of his wife, offered to make the transfer, but that Lee, having in the meantime purchased other property, refused to take a deed to the property, and that Rochester and Lee withdrew the checks which had been deposited by them, and the defendant contends that the failure to make the transfer was due to the fault of the prospective purchaser introduced by plaintiffs, and that they cannot recover any commission.

While it is well recognized that a broker who produces a prospective purchaser who is ready, able and willing to take the property at the price and on the terms offered by the principal, is entitled to recover his commission, where the principal refuses to accept the offer or consummate the sale. R. C. L., Brokers, vol. 4, page 307; Gurley & Parkerson vs. Loeffler, 14 Orl. App. 424; Jordy vs. Salmen Brick Co., 121 La. 458, 46 So. 572; nevertheless the contract for commission contemplates that a sale will be made, and where the prospective purchaser merely enters into a contract or promise of sale, with a deposit to bind the contract, and the prospective purchaser thereafter refuses to take title, the broker cannot recover any commission under the contract.

In the present instance there is some conflict in the evidence as to whether or not Lee agreed to give Rochester further time to obtain his wife’s consent, but it is conceded that the earnest money was not withdrawn until after Rochester had obtained his wife’s consent to the sale, and we are of the opinion that the failure to consummate the sale was due to the fault of Lee, and not to Rochester.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiffs’ demands be rejected at their cost.


text:
    No. 2595
    Second Circuit
    SHEPPARD GROCERY CO. v. COLE
    (April 5, 1929. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark and Van Hook, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, J. W. Sheppard, doing business under the name of the Sheppard Grocery Company, brought this action against defendant, J. L. Cole, to recover judgment for an alleged balance due on an open account which had been carried on plaintiff’s books for several years under the name of J. G. ■ Cole, it being alleged that the account had been opened and credit extended to defendant who had stated that his name was J. G. Cole.

In answer, defendant pleaded, in substance a general denial, and on trial judgment being rendered rejecting plaintiff’s demands, he appeals and urges that the evidence established that defendant had opened the account as alleged, and that the judgment should be reversed.

The evidence established that the merchandise shown on the account had been furnished to and used by the family of defendant’s father, J. G. Cole, which, at the time the account was opened, consisted of the father and mother, three minor children (including defendant who was at that time eighteen years of age), and two major children, and the evidence is directly conflicting as to whether the account was opened by J. G. Cole, the father, or by defendant, J. L. Cole, relative to which J. W. Sheppard and one of his sons states that the account was opened by defendant, while defendant testified that he did not open the account, and J. G. Cole testified that the account had been opened by him.

There is not anything in the record that reflects upon the credibility of the defendant or his father, and while it is shown that defendant, although a minor at the time, was the principal contributor to the support of the family, it is not shown that J. G. Cole was irresponsible, and the fact that plaintiff, after he ascertained that defendant and his major sister were the principal contributors to the support of the family, looked to defendant to pay the account, adds little, if any, weight to plaintiff’s evidence that the account had been opened by and credit extended to him.

The trial court heard the witnesses, and from the evidence presented we do not think that his finding could be said to be manifestly erroneous, and the judgment is therefore affirmed.


author: PER CURIAM.

text:
    No. 2440
    Second Circuit
    MEYER-KISER CORP. v. ARMSTRONG
    (April 5, 1929. Opinion and Decree.)
    Crow & Coleman, of Shreveport, attorneys for plaintiff, appellee.
    T. C. Armstrong, of Pleasant Hill, attorney for defendant, appellant.
   PER CURIAM.

Subsequent to the date of which the transcript in this case was lodged in this Court, the defendant, T. C. Armstrong, appellant, was interdicted, and Mrs. Amelie Ford was appointed curatrix to take charge of his person and estate.

The case was at one time set for hearing in this Court and, it appearing that the' curatrix had not made herself a party to the appeal, the case was continued in order that she might have time to do so. The said Mrs. Amelie Ford, curatrix, being a resident of this State, this Court on February 15, 1929, issued an order directing that she be summoned to appear within 25 days, as required by the rules of this Court. Personal service was made •upon her by the sheriff and, after the lapse of 25 days, counsel for appellee moved that the appeal be dismissed.

The Court refused to dismiss the appeal, but, on the contrary, ruled the curatrix to show cause why the appeal should not be dismissed and ordered her to make her return into this Court by March 26, 1929. The delays for answering the rule having expired without any appearance on the part of the curatrix, it is now ordered and decreed that the appeal be dismissed.


text:
    No. 2590
    Second Circuit
    BANK OF BERNICE v. TANNER ET AL.
    (April 5, 1929. Opinion and Decree.)

      Atkins and Meadors, of Homer, attorneys for plaintiff, appellee.
    McClendon and Seals, of Homer, attorneys for defendants, appellants.
   WEBB, J.

Plaintiff, Bank of Bernice, brought this action against P. J. Tanner and L. D. Parley to recover judgment against them on a note which was drawn by Tanner payable to the order of Parley and endorsed by him and transferred to plaintiff.

Tanner did not make any defense, but Parley alleged, in substance, that his endorsement had been obtained by fraud, in that the note had been transferred to plaintiff with the understanding and agreement that plaintiff would rely solely upon the responsibility of the drawer, and that the endorsement was under the agreement of the parties for the restricted purpose of transferring the title.

On trial judgment was rendered in favor of plaintiff against both defendants as prayed for, and Parley appeals, and urges that the preponderance of the evidence established that the endorsement was made for the restricted purpose as alleged by him.

There had been some prior transactions between the parties, as to which, however, the evidence is not sufficient to enable us to state the exact details, but it is conceded that Parley, at the conclusion of the transactions, was indebted to plaintiff in the sum of eight hundred seventy dollars, and that in payment of the indebtedness he gave the note here sued upon, the face value of which is seven hundred dollars, and in support of the defense Parley and his son testified that at the time the note was transferred to plaintiff, which was represented by its president, Y. S. Puller, it was agreed that the endorsement was made solely for the purpose of transferring the note and with the understanding that Parley should not be liable, while Puller testified that there was not any such agreement.

It is clear that the delivery of the note with the endorsement, as made, evidenced a written contract as between the plaintiff and Parley.

“The contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not, in any proper sense, a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing, some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less, on that account, perfectly understood. All its terms are certain, fixed and definite,- and, when ' necessary, supplied by that common knowledge, based on universal custom, which has made it both safe and convenient to rest the rights and obligations of parties to such instruments upon an abbreviation. So that the mere name of the indorser, signed upon the back of a negotiable instrument, conveys and expresses his meaning and intention as fully and completely as if he had written out the customary obligation of his contract in full.” Martin vs. Cole, 104 U. S. 30, 26 Law Ed. 647. Also Connelly vs. Bourg, 16 La. Ann. 108, 79 Am. Dec. 568.

The evidence shows that Farley was fully aware of the contract resulting from his transfer of the note with the endorsement as made, and that the note was given in payment at its face value, and the evidence strongly indicates that the drawer of the note was not in as good financial circumstances as the indorser, who, as stated, gave the note to plaintiff in payment of his debt, and these circumstances are to be considered in weighing the directly conflicting testimony of defendant Farley and his son as against the testimony of the president of the bank as to whether or not the agreement of the parties was different from that evidenced by the written instrument; and thus weighing the evidence, we are of the opinion that defendant failed to establish his defense.

The judgment appealed from is therefore affirmed.


author: ODOM, J.

text:
    No. 2631
    Second Circuit
    ROBINSON v. ENLOE
    (April 5, 1929. Opinion and Decree.)
    R. L. Williams, of Arcadia, attorney for plaintiff, appellee.

      J. Rush Wimberly, of Arcadia, attorney for defendant, appellant.
   ODOM, J.

In the suit styled Harry E. Enloe vs. Dewitt T. Robinson, there was judgment for plaintiff against defendant by default. The plaintiff alleged that defendant was 'a resident of Bienville Parish, Louisiana, and citation was addressed to him accordingly. The Sheriff made domiciliary service, his returns reading as follows:

“DOMICILIARY SERVICE
“Received on the 8th day of June in the year 1925, and on the 9th day of June in the year 1925, I served a copy of the tvithin Citation and of the petition accompanying the same by personal service on Dewitt T. Robinson, the defendant herein named, by leaving the same at his domicile, at the place where he has always lived, his old home place, he being a single man, in the Parish of Bienville, State of Louisiana, in the hands of Homer Robinson, a person apparently over the age of 14 years, living and residing in said domicile, whose name and the other facts connected with this service I learned by interrogating the said -------------------------------- ________________________________________ the said Dewitt T. Robinson being temporarily absent from his domicile at the time of said service.
(Signed) N. C. Hall, Deputy Sheriff.”

The defendant, Dewitt T. Robinson, brought his suit to annul said judgment on the ground, among others, that he had been condemned by default without having been legally cited. The District Judge annulled and set aside the judgment; and Enloe appealed.

OPINION

The judgment is correct; Robinson was not legally cited. The Sheriff’s returns show that.

Paragraph 9, Sec. 1 of Act 179 of 1918, page 334, provides that process addressed to an individual may be made at the domicile of such person, even though said ■person should be absent or conceal himself, “by leaving the same in the hands of any person above the age of sixteen years residing on the premises, and the Sheriff or Constable before making such domicile service shall ascertain these facts from the person upon whom the service is made.”

The Sheriff’s returns show that the citation and copy of the petition were left in the hands of Homer Robinson, “over the age of fourteen years.” That was not a compliance with the statute which provides that the Sheriff, in case the defendant be absent, shall make service “by leaving same in the hands of any person above the age of sixteen years.” Not only that, but the Act further provides that “the Sheriff or Constable before making such domicile service shall ascertain these facts (that is that defendant resides on the premises and is temporarily absent, etc.) from the person upon whom the service is made.” The Sheriff, according to his returns, made the service on Homer Robinson, but the returns do not show that he ascertained the essential facts from him.

The defendant in the suit of Enloe vs. Robinson did not appear and answer, but was condemned by default.

When a defendant fails to appear and suffers default to be entered against him, issue is joined tacitly. (C. P., Art. 360.)

“The joining of issue is in fact the foundation of the suit, as citation is that of the action.”

C. P. Art. 359.

There can be no issue joined without citation. No valid judgment can be rendered against a person until he has been legally cited.

Cole vs. Hocha, 21 La. Ann. 613; Conery vs. Rotckford, Brown & Co., 30 La. Ann. 692.

The return of the Sheriff on a citation served at the domicile of the defendant must show that the citation and copy of the petition were served on a person of lawful age.

Cole vs. Hocha, supra; See Lehmann, Stern & Co. vs. Broussard et al., 45 La. Ann. 346, 12 So. 504.

Where a Sheriff’s returns on a citation are irregular and void, the judgment rendered to confirm a default is a nullity.

Adams & Co. vs. Basile, 35 La. Ann. 101; Hobson et al. vs. Peake, 44 La. Ann. 383, 10 So. 762.

Where issue has not been joined by answer or legal default, the judgment rendered is null.

Chopin vs. Freeman, Tax Collector, 145 La. 972, 83 So. 210; C. P., Art. 606;; Walworth vs. Stevenson, 24 La. Ann. 251; Morris vs. Bailey, 15 La. Ann. 2; Jacobs et al. vs. Frere, Executor, 28 La. Ann. 625.

The judgment sought to be annulled was rendered on default in a case where the citation, according to the Sheriff’s returns, was illegal. It was properly set aside by the lower court.

For the reasons assigned, the judgment of the District Court is affirmed, with costs in both courts.


text:
    No. 2606
    Second Circuit
    SHREVEPORT GROCERY CO., INC., v. JOHNSON ET AL.
    (April 5, 1929. Opinion and Decree.)

      Lyons and Prentiss, of Shreveport, attorneys for plaintiff, appellant.
    Harry V. Booth, of Shreveport, attorney for defendants, appellees.
   ODOM, J.

Plaintiff brought this suit against defendants on an open account, and obtained judgment against them by default, they having failed to appear; and on the same day the judgment was read, signed and filed. After the judgment was signed, on the same day, defendants, through counsel, appeared in open court and filed written motion for a new trial on the grounds that the judgment rendered was contrary to the law and the evidence and that no appearance or defense was made by them through oversight and inadvertence on the part of their attorney, who had been employed to represent them in the suit. In their motion for a new trial, they alleged that they had placed plaintiff’s petition in the hands of their attorney four days previous to the day on which judgment was rendered by default, with instructions to him to file answer and defend the suit, and that they had a valid defense.

The court took the motion for a new trial under advisement and subsequently granted it, but more than three days after the judgment by default had been rendered and signed. After granting a new trial, the case went to trial on its merits, all parties being present. Whereupon the court, after hearing the parties, rendered judgment for the defendants, rejecting plaintiff’s demands. The plaintiff appealed.

OPINION.

The case is not before us on its merits. Plaintiff does not complain that the court erred in rejecting its demands when the case was heard on its merits after the new trial was granted, but it does contend that the court erred in granting a new trial, and we are asked to review its ruling on that point alone.

Appellant can find no relief in this court from the lower court’s ruling on the motion for a new trial for several reasons, the first of which is that it made no objection to the filing or the trial of the motion for a new trial on the ground that it came too late or that the motion was not in proper form, and did- not object to the order of the court granting the new trial and reserved no bill of exceptions to the court’s ruling; but, on the contrary, went into the trial of the case on its merits without reservations. Under such circumstances, the court’s ruling on the motion for the new trial passed out of the case because appellant submitted without objection to the ruling. The holding of the court in the case of Stovall & Sons vs. Hubier, 143 La. 1028, 79 So. 830, is significant on 'this point. In Stewart vs. Harper, 16 La. Ann. 181, it was held that objections to the ruling of the court can not be made on appeal if not made in the lower court and excepted to there.

But aside from that, the court’s order granting a new trial was interlocutory and not final. Prom such orders an appellate court will grant no relief unless from them there does or may flow irreparable injury, and none such can result from an order granting a new trial.

In the case of McWillie vs. Perkins, Jr., 20 La. Ann. 168, the court said:

“A judgment granting a new trial is interlocutory and not final, operating only as a postponement or continuance; it does not cause an irreparable injury; therefore, no appeal lies in this case.” Citing C. P. art. 566; Rider vs. His Creditors, 9 La. 161; State vs. Judge of Parish Court, 15 La. 521; Succession of White, 2 La. Ann. 964; Bailey vs. Sims, 3 La. Ann. 217; City of N. O. vs. Imley, 12 La. Ann. 87.

In Wheeler vs. Joseph Maillot & Co., 15 La. Ann. 659, the court said:

“The plaintiff’s counsel have filed a motion to dismiss the appeal on the grounds that no appeal lies from an order granting a new trial—that such an order is within the discretion of the District Judge, is interlocutory, and does not work an irreparable injury. These grounds are well taken and are sufficient to dismiss the appeal.”

In Joyce vs. Nona Mills Company, Ltd., 142 La. 934, 72 So. 854, the court said:

“By setting aside the judgment, the Judge in effect merely granted a new trial. This he could do within the three days allowed for application for a new trial. C. P. Articles 560-547; Shreveport Cotton Oil Company vs. Blackman, Judge, 110 La. 266, 34 So. 438. The granting of a new trial within the legal delays for new trial is simply an interlocutory order, not appealable from. McWillie vs. Perkins, 20 La. Ann. 168; Wheeler vs. Maillot, 15 La. Ann. 659.”

Counsel for appellant concedes that no appeal lies from an order granting a new trial. He says, in supplemental brief:

“Furthermore, plaintiff could not have legally taken an appeal from the decree granting a new trial because it was interlocutory, and if an appeal had been taken it would have been dismissed on motion.”

He quotes the following excerpt from the case of State of Louisiana vs. Cole, 39 La. Ann. 938, 3 So. 84:

“It has been repeatedly held that an appeal does not lie from an order granting a new trial.”

But contends, however, that an appeal from the final judgment in any case brings up for review all previous interlocutory judgments, and he cites Succession of Williams, 153 La. 210, 95 So. 607; Vance vs. Noel, 143 La. 478, 78 So. 741; Demarest vs. Beirne, 36 La. Ann. 751.-

Be it so, hut if the interlocutory order or ruling is one which works no irreparable injury, this court can grant no relief therefrom whether such ruling be brought up on direct appeal or brought up by appeal from the last judgment. It is not a question as to how the point gets before the court. The question is whether the court can or should grant the relief sought. An appellate court will grant no relief from an interlocutory decree granting a new trial wheré the lower court has acted within its rights in granting the order under the articles of the Code of Practice.

Paragraph 3 of Article 547 of the Code of Practice provides that Judges “may ex-officio direct a new trial in order to revise their judgments,” and it has been repeatedly held that the granting or refusal of a new trial is a matter left within the sound discretion of the trial court and that his ruling in that respect will not be disturbed, except in cases where that discretion is abused.

Nessans vs. Colomes, 130 La. 375, 57 So. 1010, and authorities.

The trial judge cannot ex-officio grant a new trial, after the lapse of three days from the rendition of the judgment, unless a motion has been filed within that delay, except for the causes set out in Article 560 of the Code of Practice.

Culverhouse vs. Marx, 38 La. Ann. 667;

State ex rel. Shreveport Cotton Oil Co. vs. Blackman, Judge, 110 La. 266, 34 So. 438.

But the judgment in the case at bar did not become final because defendants filed their motion for a new trial on the day the judgment was rendered. It is true that the new trial was granted more than three days after the judgment was rendered and signed, and counsel for appellant contends that the judgment had become final because it had been read and signed. The signing of the judgment, however, was premature. Article 546 of the Code of Practice provides that,

• “The Judge must sign all definitive or final judgments rendered by him, but he shall not do so until three judicial days have elapsed.”

Within three days, the party cast may move for a new trial, and the signing of the judgment previous to the expiration of the delays does not cut off that right.

In McWillie vs. Perkins, supra, the court said:

“It is well settled that -a judgment is inchoate until the expiration of the delay allowed to apply for a new trial, and it is but then that the signature of the Judge can make it final.”

In the case at bar, defendant moved for a new trial on the day the judgment was rendered. The court took the motion under advisement. Under Act 94 of 1898, the court had seven days in which to pass on the motion. The act reads in part:

“All motions, exceptions or applications for new trial shall be passed upon by the Judges of the District Courts and the Judges of the City Courts within seven days from the time such motions, exceptions or applications for new trial are submitted to them for their decision.”

While the motion, which was timely filed, was pending, the judgment could not become final. Whether the court granted the new trial ex-officio or upon the application of appellee, we think does not matter under the circumstances of this case. The court was within its rights in either event.

In our opinion, the new trial should have been granted as a matter of justice. Defendants appeared in court on the day they were called. Under Act 28 of 1921, fixing the status and civil jurisdiction of the City Court of Shreveport, prior defaults are not necessary to final judgment in any case. That rule is radically different from that which prevails in the District Courts of the State where preliminary defaults are required to be entered two clear judicial days prior to confirmation. The Judge was no doubt convinced that an injustice had been committed and, in order to right the wrong, he granted the new trial. Plaintiff has suffered no injury. It has had its day in court, and counsel does not now urge that the judgment rejecting its demands was erroneous.

Counsel cites the ease of Stout vs. Henderson, 157 La. 169, 102 So. 193. In that case, a preliminary judgment by default was confirmed after two judicial days, and immediately counsel for defendant appeared in coui't and filed a motion for a new trial, which motion was overruled and that ruling was sustained. But in that case the grounds for the motion for a new trial were that the judgment was proved up on default when plaintiff’s counsel knew and had been advised that- an answer would be filed in the case, and that the ease would be regularly set for trial, and' that counsel for plaintiff had acted contrary to the custom of the court in proving up defaults after they had been requested not to proceed until defendant’s counsel got into the court room. But defendant made no effort to prove any such custom.

We think the trial court was clearly within its rights in ordering a new trial, and we shall not disturb the judgment. It is accordingly affirmed.


text:
    No. 2659
    Second Circuit
    TULLIS FURNITURE CO. v. POPE
    (April 5, 1929. Opinion and Decree.)
    Cal. D. Hicks, of Shreveport, attorney for plaintiff, appellee.
    Pugh and Boatner, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is an action to recover judgment on an open account for merchandise alleged to have been sold by plaintiff to defendant, amounting to one hundred eighty-four and 70-100 dollars, and defendant appeals from a judgment rendered against him, in favor of plaintiff as prayed for.

The judgment was rendered on confirmation of a default, and defendant and appellant has not made any appearance in this court, and from our review of the record the proceedings had appeared to have been in all respects regular and due proof to have been made of the correctness of the account sued upon; and the judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 2640
    Second Circuit
    HICKS v. GRIFFITH ET AL.
    (April 5, 1929. Opinion and Decree.)
    William M. Pollock, of Mansfield, attorney for plaintiff, appellant.
    Craig, Bolin and Magee, of Mansfield, attorneys for defendants, appellees.
   REYNOLDS, J.

Plaintiff, Charles B. Hicks, appeals from a judgment rejecting as in case of non-suit, his demand against defendants, W. J. Griffith and J. C. Griffith, for $326.81 with legal interest thereon from December 1, 1924, as the value of his undivided interest in certain timber belonging to himself and W. G. Glover equally and indivisión and alleged to have been cut by defendants.

By act passed before William M. Pollock, notary, on August 13, 1923, plaintiff, C. B. Hicks, and the Hicks-Richardson Company, Limited, sold’ to defendants, W. J. Griffith and J. C. Griffith, certain timber owned by them in indivisión on certain described lands.

The consideration of the sale was $4,-000.00, part of which was paid in cash at the making of the sale and the balance was represented by promissory notes of the purchaser.

It was stipulated in the act of sale, among other things, that:

“It is further agreed and understood by all parties to this act, that the consideration of $4,000.00 aforesaid is made upon the basis that the vendors have at least one million feet of cypress timber in and upon the aforesaid described property, regardless of whether or not the said vendors have the same thereupon; and it is further stipulated and understood that the said vendees or purchasers are to keep a correct tab or account of all timber as cut by them and render an accurate estimate of cut as made by them on or before the 10th of each month, of the preceding month’s cut from said premises; and the said purchasers or vendees further agree to pay the said vendors after the first one million feet is cut at the rate of $4.00 per M for such additional timber over one million feet, and 10c for all No. 3, and 12% c for No. 4, and 15c for all No. 5 ties that is cut and removed from the aforesaid premises, which is to be paid for on or before the 10th of each month for the preceding month’s cut from aforesaid premises, and statement of said cut to accompany the aforesaid payments for the timber or ties as cut by said vendees or purchasers.
“It is further agreed and stipulated that should the said vendees cut and remove sufficient amount of timber and ties aforesaid at the price aforesaid to exceed the purchase price of four thousand dollars, even before the full and final payment of the aforesaid purchase price of four thousand dollars is fully paid and liquidated, they agree to pay said vendors the aforesaid price for timber and the aforesaid price for ties on or before the 10th of each month for the preceding month’s cut from said premises.
“The aforesaid purchasers further agree to work up all dead and down timber as well as all tops, etc. that can possibly be made into ties, piling, etc. and to account to the said vendors for the stump-age thereon and pay the price aforesaid to the said vendors, so as to prevent waste or loss to vendors for their timber or stumpage, and to include in their log scale all swells or butts within two feet of the ground of all timber cut from said premises by said purchasers, whether cut or not cut by said purchasers.”

And on the very same day, by act before the same notary and the same witnesses, the plaintiff, Charles B. Hicks, and the defendants, W. J. Griffith and J. C. Griffith, entered into an agreement as follows:

“Whereas he (Charles B. Hicks) has this day, jointly with the Hicks-Richardson Company, Limited, executed unto W. J. Griffith and J. C. Griffith, a sale of certain cypress timber, etc. upon certain lands in DeSoto parish, La., which contract is. 'made a part hereof by reference; and,
“Whereas, in the aforesaid act of timber agreement aforesaid the appearer’s (Charles B. Hicks’) undivided one-half (%) interest in what is known as the W. G. Glover’s Lake Lands, described as lot five (5)' and lot eight (8), being fractional N% of SE% of Section 10 in Township 13 North of Range 12 West, containing 115.64 acres, more or less, was not embraced or included therein, when as a matter of fact, the same should have been included therein, as giving the said W. J. Griffith and J. C. Griffith the right to cut and remove the same, as provided for in the aforesaid timber contract;
“Now, therefore, the said appearer, C. B. Hicks, does hereby formally agree and obligate himself to permit and allow the said W. J. Griffith and J. C. Griffith to cut and remove the aforesaid timber on his undivided one-half interest in and to the aforesaid described lands, upon the same terms and conditions as provided for in the aforesaid timber agreement by said appearer and the Hicks-Richardson Company, Limited, with the said W. J. Griffith and J. C. Griffith, as aforesaid; and instead of being paid the full amount of the cut therefrom the said appearer (Charles B. Hicks) is to be paid one-half thereof, and the remaining one-half ’of the stumpage is to be paid to the co-owner of the said appearer, W. G. Glover.
“It is further understood that the said W. J. Griffith and J. C. Griffith have a timber or tie agreement with the said Glover to his one-half interest in and to the aforesaid lands, but should the said W. J. Griffith and J. C. Griffith’s agreement with W. G. Glover not permit or allow them to cut other than ties from the aforesaid lands, and they do not agree or make an agreement with said Glover on his half of the land aforesaid, then the said appearer, C. B. Hicks, shall he under no obligation to the said W. J. Griffith and J. C. Griffith for them to cut and remove his one-half interest in and to the timber on the aforesaid property.”

The defendants having acquired from W. G. Glover the right to cut and remove the timber from the land owned by him and plaintiff, so far as his undivided half interest in the timber was concerned, and having cut from the land timber of the value of $653.61, and having accounted to Glover for his half of this amount, and having refused to pay to-plaintiff an equal amount, plaintiff brought this suit.

The defense is that plaintiff’s undivided half of the timber was included in the contract between plaintiff and the Hicks-Richardson Company, Limited, and defendants, and its transfer to defendants formed part of the consideration paid and agreed to be paid by defendants by that contract; that by mutual error the contract failed to describe plaintiff’s undivided half interest in the timber owned by him and Glover and that the purpose of the contract between plaintiff and defendants was to reform the contract between plaintiff and the Hicks-Richardson Company, Limited, on the one side, and defendants on the other side, so as to include therein, as having been inadvertently omitted therefrom, plaintiff’s half of the timber owned by him and Glover.

It is further alleged that defendants have paid to plaintiff and the Hicks-Richardson Company, Limited, for all timber cut by defendants under the two contracts and that such payment included the value of plaintiff’s half of the Hicks-Glover timber.

Plaintiff contends that the contract between him and defendants was not an amendment to or part of the contract between defendants and C. B. Hicks and Hicks-Richardson Company, Limited, but an independent contract whereby defendants were given the right to cut the Hicks-Glover timber, paying therefor on the basis of $4.00 per thousand feet, board measure, stumpage, so far as plaintiff’s interest therein was concerned, provided defendants could acquire from Glover the right to cut the timber so far as his interest therein was concerned.

The question presented for our determination is whether the contract between plaintiff and defendants was independent of the contract between plaintiff and the Hicks-Richardson Company, Limited, and defendants, and for an additional consideration, as contended for by plaintiff, or was a mere amendment to or correction of the latter contract, and made for the purpose of including therein plaintiff’s half of the timber on the W. G. Glover land, as having been inadvertently omitted therefrom, and without additional consideration,. as contended for by defendants.

The evidence introduced in support of the respective contentions was conflicting and of approximately equal weight, and we must resort to the instruments themselves and the circumstances surrounding their execution to ascertain the intention of the parties.

“The seller is bound to explain himself clearly respecting the extent of his obligations: any obscure or ambiguous clause is construed against him.”

Civil Code, article 2474.

The evidence shows that all of the timber, that uncut as well as that cut, and plaintiff’s half of that on the W. G. Glover tract as well as that of plaintiff and the Hicks-Richardson Company, Limited, will not amount to one million feet; and it also shows that plaintiff, who represented the Hicks-Richardson Company, Limited, as well as himself, was willing to sell all of the timber that that company and he owned for $4.00 per thousand feet, stumpage, and that defendants were not willing to pay more than this for it. And the evidence further shows that plaintiff was convinced the timber owned by himself did not exceed one million feet. The facts corroborate, we think, defendant’s contention that plaintiff’s half of the timber on the W. G. Glover tract was intended to be included in the first contract and that the price of the first contract also included the price of this timber. We do not helieve defendants would have agreed to pay $4,000.00 in any event for the timber, even though the stumpage proved to be less than one million feet, unless plaintiff’s half of the timber on the W. G. Glover tract was also included.

As defendants were not willing to pay more than $4000.00 for all the timber, including plaintiff’s half of that on the W. G. Glover tract, and did not expect to get and -tfill not get more than one million feet from all of it, if plaintiff were allowed to recover in this action defendants would be paying more for . the timber than they agreed to pay and plaintiff would be receiving pay twice for his half of the timber on the W. G. Glover land.

The burden was on plaintiff to make out his case. This we think, as did the trial court, he failed to do.

The judgment appealed from is correct and accordingly it is affirmed.

WEBB, J., concurs.


text:
    No. 2651
    Second Circuit
    COVINGTON v. MATLOCK
    (April 5, 1929. Opinion and Decree.)

      Cook and Cook, of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, J. H. Covington, the holder and payee of a note drawn by H. C. Leete, secured by chattel mortgage on certain furniture, alleges that defendant, C. T. Matlock, had obtained possession of the property under a judicial sale made in execution of a judgment in favor of Matlock against Leete and thereafter had sold the property to persons unknown to plaintiff; that, at the time of executing the judgment, Matlock had actual as well as constructive knowledge that the property was mortgaged, and that Matlock had refused to disclose the names of the persons to whom he sold the property, and that his action was tantamount to a concealment of the mortgaged property, and constituted a fraud upon plaintiff, depriving him of his privilege and remedy against the property, which is alleged to have been worth more than the amount of the note, principal, interest and attorney’s fees, and he prayed for judgment against defendant for the amount of the note, principal, interest and attorney’s fees.

Defendant excepted that the petition failed to state a cause of action, which was overruled, and defendant answered denying plaintiff’s allegations as made, but admitting that he had acquired the property as alleged, and on trial judgment being rendered in favor of plaintiff for an amount equal to that which Matlock had received from the sale of the property, defendant appealed, and plaintiff has an-with legal interest from judicial demand, swered the appeal, asking that the judgment be amended and the amount increased to that originally demanded, or the amount of the note of four hundred fifty-eight dollars, with six per cent per annum interest from date of the note, and ten per cent as attorney’s fees.

The evidence established the material allegations of the petition, with the exception that it shows that defendant had not seized or come into possession of all of the property covered by the mortgage, and the evidence was conflicting as to the value of the property purchased by plaintiff, but there was not any evidence indicating that there was any collusion between defendant and Leete in furtherance of which the property had been sold in execution of the judgment held by defendant against Leete.

Defendant apparently urges two grounds for the reversal or amendment of the judgment: one, that, it not being shown that there was any collusion between defendant and Leete, the judicial sale made in execution of the judgment was valid, and defendant having purchased the property, had acquired title, and had the right to sell the property to whomsoever he pleased, and that there was not any duty imposed on him to disclose the names of the persons to whom he had sold the property, and therefore plaintiff should not be permitted to recover damages against him when he had no.t violated any obligation or duty owing or due by him to plaintiff; and the other: that the evidence failed to establish that Leete was indebted to plaintiff in an amount equal to the amount of the judgment rendered against defendant.

Considering the questions presented in an inverse order, we find that the evidence established that the mortgage was given to secure plaintiff for a loan made by plaintiff to Leete of two hundred eight dollars, and to secure plaintiff against liability on an accommodation endorsement of a note drawn by Leete for two hundred fifty dollars, and that plaintiff had, at the time of the present suit, paid one hundred twenty-five dollars under the liability resulting from his endorsement, making a total of three hundred thirty-three dollars due plaintiff by Leete, which is in excess of the amount of the judgment rendered against defendant.

In support of the first question, counsel does not discuss the right of plaintiff under the mortgage, nor the right acquired by defendant under the judicial sale, in the property, but rather assumes that the plaintiff acquired merely a lien on the property under the mortgage, and that defendant acquired the title under the judicial sale, and with this assumption counsel confine their discussion to the question of whether or not the action of defendant, and especially his refusal to disclose the names of the persons to whom he sold the propérty, was a fraudulent concealment of the property under the provisions of the chattel mortgage statute (Act 198 of 1918) which provides:

“That any owner or other person who shall dispose of property mortgaged under this act, with fraudulent intent to defeat said mortgage * * * shall be deemed guilty of a misdemeanor and on conviction shall be fined in a sum not exceeding five hundred dollars * * * If any creditor of movable property, or any person shall injure, destroy or conceal any property mortgaged under this act, or part thereof, with intent to defraud the mortgagee, * * * he shall be deemed guilty of a violation of this act,” etc., etc.

While we are of the opinion that in default of any allegation or proof that the judgment was obtained and execution thereon had by collusion between defendant and Leete, defendant acquired title to the property under the judicial sale, subject to the mortgage, and that the mortgage followed the property into the hands of the persons to whom defendant sold, and thus, as suggested by defendant, it might be said that the. mortgage was not affected, as plaintiff might have had recourse against the property, however, we do not think it necessarily follows that plaintiff could not recover either by reason of the fact that defendant acquired title to the property or that the mortgage followed the property, as the fact that defendant had knowledge that the property was burdened with a mortgage rendered it necessary that he should not deal with the property in such manner as to prevent plaintiff from having recourse against the property, and we are of the opinion that this is true even though it be conceded defendant could not have been subjected to the penalty for fraudulently concealing the property. See Roger vs. Milliken & Farwell, 14 Orl. App. 92; Hewett vs. Williams, 48 La. Ann. 686, 19 So. 604; Blanchard vs. Bank, 158 Ga. 780, 124 S. E. 695.

The evidence establishing that the action of defendant had rendered it impossible for plaintiff to proceed against the property under the mortgage, it must be assumed that he contemplated that such 'would be the effect of his action, and that he should be held liable.

, It is conceded that plaintiff cannot recover more than the value . of the property, and we do not think that plaintiff has any cause to complain of the judgment allowing him to recover the amount for which defendant sold the property, which was in excess of the value placed on the property by the majority of the witnesses who were shown to be conversant with the value of such property.

The judgment is affirmed.


text:
    No. 2612
    Second Circuit
    FIRST NATL. BANK OF SAN AUGUSTINE, TEX., v. HUTTO FIRST NATL. BANK OF HEMPHILL, TEX., INTERVENER
    (April 5, 1929. Opinion and Decree.)
    J. R. Bogard, of San Augustine, Texas, and Ponder and Ponder, of Many, attorneys for plaintiff, appellee.
    R. A. Fraser, of Many, and W. F. Goodrich, of Hemphill, Texas, attorneys for intervener, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

By act, executed in the County of San Augustine in the State of Texas, on February 12, 1924, and filed for record the next day, the defendant, J. H. Hutto, mortgaged to the plaintiff, First National Bank of San Augustine, Texas, certain chattels, the proceeds of the sale whereof constitute the subject matter of this litigation, to secure the payment of certain indebtedness owing by him to it.

And by act, executed in the County of Sabine in the State of Texas, on September 23, 1924, and filed for record on October 9, 1924, the defendant, Hutto, mortgaged the same chattels to the intervener, First National Bank of Hemphill, Texas, to secure the payment of certain indebtedness owing by him to it.

Shortly prior to October 1, 1924, the mortgaged property was removed to Sabine Parish in the State of Louisiana, and, on October 23, 1924, the plaintiff caused its mortgage to be filed in Sabine Parish, Louisiana, and instituted suit against Hut-to there to obtain judgment against him for its debt and for the foreclosure of its mortgage. And under proper averments and on giving bond a writ of sequestration was issued and the mortgaged property sequestered. Service was had on Hutto and judgment was rendered against him and in favor of the plaintiff for its debt and sustaining the writ of sequestration.

Thereafter the intervenor, First National Bank of Hemphill, Texas, filed its intervention in the action and set up its debt and mortgage. It made Hutto a party defendant thereto and asked for judgment against him for its debt and recognition of its mortgage. It alleged that the lien of its mortgage on the mortgaged chattels was superior to the lien of plaintiff’s mortgage and asked that its debt be paid out of the proceeds of the sale of the property by preference over plaintiff. The grounds of priority alleged are:

“* * * that the property covered by appearer’s mortgage * * * was at the time of the granting of said mortgage and had been for twelve months prior thereto situated within the county of Sabine, state of Texas, and had not been removed therefrom and were not removed therefrom until they were brought to the state of Louisiana.
“* * * that the property * * * covered by its special mortgage was removed to the parish of Sabine, Louisiana, by the said J. H. Hutto, with the knowledge and consent of your appearer, and that on October 8, 1924, the said Hutto executed a certain chattel mortgage covering said property, in the parish of Sabine, which said chattel mortgage specifically refers to and recognizes on its face appearer’s prior mortgage, and that said mortgage in favor of R. L. Travis containing stipulation recognizing appearer’s mortgage, was duly filed for record among the mortgage records of Sabine parish, Louisiana, on October 8, 1924, and was recorded in Book 4 of chattel mortgages at page 143 and operated from that date as a recognition of appearer’s mortgage and notice to third persons of the existence thereof.”

Plaintiff answered intervener’s petition and denied the allegations thereof.

On these issues the case was tried and there was judgment in. favor of the plaintiff ' and against the intervener and the intervener appealed.

OPINION.

Both Louisiana and Texas counsel for plaintiff and Louisiana and Texas counsel for intervener insist that the rank of the mortgages of their respective clients is to be determined by the laws of the state of Texas and to that end proof of the laws of that state on the subject was duly made.

Intervener contends that at the time plaintiff’s mortgage was given the mortgagor was not a resident of San Augustine county, Texas, and that the mortgaged property was not then in that parish, and that therefore plaintiff acquired no mortgage on the chattels by reason of the execution and recordation of its alleged mortgage.

Intervener, in brief, says:

“The District Court took the position that the question to be decided was the application of the Texas law to ■ the two alleged mortgages, and held that the San Augustine bank had the prior mortgage. This finding of the court was based upon an erroneous statement of the facts, the court holding that the time the San Augustine bank took its mortgage the property was in the county of San Augustine and that the defendant, Hutto, then resided in San Augustine county, and that the property was removed from San Augustine county into Sabine county, Texas, without the knowledge and consent of the San Augustine bank.
“We submit that the evidence clearly shows that the property and the defendant moved into Sabine county in September, 1923, some six months before the San Augustine bank took its mortgage.”

The first question to be determined, therefore, is, whether Hutto was a resident of San Augustine county and whether the property was in that county at the time the mortgage to plaintiff was given.

On this question our learned brother of the District Court held:

“The only, question to be decided in this case is whether the plaintiff, the First National Bank of San Augustine, has a superior lien and privilege upon the stock seized herein, or whether the lien of the First National Bank of Hemphill outranks plaintiff’s upon said stock. It is necessary to decide said issue according to the law of the state of Texas, as the contracts were executed according to the laws of that state. At the time the mortgage was executed in favor of the First National Bank of San Augustine, Hutto was living, with his family, on his farm about seven miles from the town of San Augustine, and the stock were also located in said county. There is no question about the stock not being located in said county when the note and mortgage were given. However, when the mortgage was executed in favor of intervener, the said Hutto was doing work in Sabine county, and had the stock in this county some time before the mortgage was given, and it seems that he had also done some work in Jasper county. As stated before, it is necessary to decide' this case according to the laws of Texas. The statute of said state, which has been filed in the record of this suit, contains certain provisions, and in order to cite the construction placed upon said statute by the courts of Texas, said statute is copied herein in part as follows:
“‘Art. 6841 (4651). Titles to chattels, where recorded. Every deed, mortgage or other writing respecting the title of personal property hereafter executed, which by law ought to be recorded, shall be recorded in the clerk’s office of the county court of that county in which the property shall remain; and if afterwards the person claiming title under such deed, mortgage or other writing, shall permit any other person in whose possession such property may be, to remove with the same or any part thereof out of the county in which the same shall be recorded, and shall not, within four months after such removal, cause the same to be recorded in the county to which such property shall be removed, such deed, mortgage or other writing, for so long as it shall not be recorded in such last mentioned county, and for so much of the property as shall have been removed, shall be voided as to all creditors and purchasers thereof for valuable consideration without notice.’
“It is the contention of the plaintiff that said property was located in the county of San Augustine and from the evidence said property was supposed to remain there. Mr. Sonders, as a witness for the First National Bank of San Augustine, stated that he learned that said property had been removed from said county, but that it was done without the consent or knowledge of the Bank of San Augustine. This being the case, it is the contention of the Bank of San Augustine that the four months’ provision which requires the mortgage to be recorded in the-county where the property is removed does not bind it as there was no permit granted.
“The First National Bank of Hemphill, intervener .herein, contends that the evidence shows that the property in question had been located in Sabine county, Texas, for more than four months, and that there were no mortgages of record in said county at the time it took its mortgage and that its evidence shows this; that its mortgage was taken in good faith and that its lien is superior to that of the First National Bank of San Augustine.
“This brings us to the question of what construction should be placed on the word ‘permit’ under the statute. Under the evidence, it has not been shown that plaintiff in this suit permitted the property to be removed into another county, and allowed same to remain there for a period of four months without recording its mortgage.
“However, on this point, it seems that plaintiff made an effort shortly after learning that said property had been removed, to protect its rights, and did follow the defendant and the property into Sabine parish, Louisiana, and there brought suit and had its mortgage recorded there, even though said recordation should not be considered in the light of a mortgage under the law of this state.
“It seems from the jurisprudence, as cited in this case, that the Supreme Court of Texas and the Civil Court of Appeals, have decided that where the property was removed without the consent of the mortgagee to another county, without his knowledge and consent, that the rights of the mortgagee were not lost by his failure to record his title or mortgage in the county where the property was removed, in four months. This was held in the cases hereinafter cited. Oxsheer vs. Watt, 91 Tex. 402, 44 S. W. 67; Guaranty State Bank of Tyler vs. Reeves et al., No. 2141, (213 S. W. 285) Court of Civil Appeals of Texas, June 12, 1919. In the last case there were cited the cases of Spikes vs. Brown, (Tex. Civ. App.) 49 S. W. 726; Hughes vs. Smith, 61 Texas Civ. Appeals, 443, 129 S. W. 1142; Goggan vs. Synnott, 63 Texas Civ. App. 530, 134 S. S. W. 1184; Triplett vs. Stone, (Tex. Civ. App.) 145 S. W. 660; Brinberry vs. White, (Tex. Civ. App.) 167 S. W. 205.
“In view of the above cited cases, it seems that under the law of Texas, which should be recognized in this suit, the First National Bank of San Augustine should be recognized as having the first lien and privilege upon the stock seized in this suit and that its lien is superior to that of the intervener, First National Bank of Hemphill. However, as the said Hutto was personally cited, the intervener should have personal judgment for the amount sued for against him.”

The court’s finding of fact is in accord with the testimony.

Mr. Sonders, president of the plaintiff hank, testified:

“Q. At the time the notes and mortgage were executed to the First National Bank, where was Hutto’s residence?
“A. About seven miles out of San Augustine.
“Q. That was in San Augustine county?
“A. Yes, sir.
“Q. You heard the statement about the mules, on which you had a mortgage, being moved from San Augustine county to Sabine and Jasper counties; was that property moved with your knowledge and consent?
“A. No, sir.
“Q. For the bank?
“A. Individually or officially, no sir.
“Q. And if it was ever taken out, it was without your knowledge or consent or knowledge and consent of the hank?
“A. I learned after that he had removed it out, after this mortgage was made.
“Q. You learned it was—?
“A. In Jasper county.
“Q. It was not taken there with your knowledge and consent?
“A. No, sir.”

That Hutto resided in San Augustine county when he gave the mortgage to the plaintiff and that at that time the property was in that country, intervener’s evidence in no way indicated the contrary.

R. C.. Travis testified:

“Q. Mr. Travis, did Hutto take the teams hack into San Augustine in the spring of 1924?
“A. If he did, I didn’t know it.
“Q. You were not keeping up with the teams?
“A. I can’t say.
“Q. He could have taken them back and you not know it?
“A. Yes, sir.
“Q. Then you are not telling the court he didn’t have them there in February and in April, 1924?
“A. No, I cannot.”

George Roberts testified:

“Q. You know J. H. Hutto?
“A. Yes, sir.
“Q. Have any dealings with him; work for him the last few years?
“A. Yes, sir.
“Q. During 1924?
“A. Yes, sir.
“Q. Where, in Sabine county?
“A. In Sabine county, Texas, yes, sir.
“Q. When you began to work in Sabine county, Texas, in 1924?
“A. Know the exact month hut not date; started some time in April on the job at Geneva and went to Brooklyn.”

In addition to this testimony, intervener relies on the judicial admission of plaintiff in the record by the attorneys for the plaintiff that:

“We admit that Mr. Hutto was camped and worked in Sabine County.”

Neither intervener’s evidence nor the admission quoted overcomes the testimony of plaintiff’s witnesses, who are unimpeached, to the effect that J. H. Hutto lived in San Augustine county, Texas, at •the time he mortgaged the property to plaintiff and that at the time he did so the mortgaged property was in that county.

Under all the evidence and the law of the state of Texas the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 2630
    Second Circuit
    JETER PAINT STORE v. SINGLUST ET AL.
    (April 5, 1929. Opinion and Decree.)
    James T. Jeter, of Shreveport, attorney for plaintiff, appellant.
    E. W. and P. N. Brown; Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff, John T. Jeter, doing business under the name of Jeter Paint Store, instituted this action against J. Lott and C. C. Hill, contractors, and Mrs. P. A. Singlust, to recover judgment against them in solido for material alleged to have been furnished to the contractors and used by them in painting a building owned by Mrs. Singlust, and for recognition of an alleged privilege on the building and lot, and plaintiff appeals from a judgment rejecting his demands as against Mrs. Sing-lust.

Appellant has not made any appearance in support of the appeal, and we assume that he has abandoned his appeal, as it appears from a review of the record that the plaintiff failed to established that the material was furnished to the contractors to be used in painting the building of Mrs. Singlust or that it was actually so used.

The judgment is affirmed. (Guy et al. vs. McDuffie, 123 La. 641, 49 So. 222; Quilter vs. Kearns, 135 La. 807, 66 So. 229; Bryceland Lumber Co. vs. Kerlin, 140 La. 867, 74 So. 177.)


text:
    No. 2667
    Second Circuit
    THE GADDIS CO., LTD., v. LITTON
    (April 5, 1929. Opinion and Decree.)

      Ponder and Ponder, of Many, attorneys for plaintiff, appellee.
    . R. A. Fraser, of Many, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, The Gaddis Company, Limited, a corporation, brought this action to recover judgment against defendant, Mrs. Jack Litton, on an account, one of the items of which was for an amount alleged to have been paid by plaintiff at the request of defendant to the Hardie & Glaspie Company for an account held by that company ágainst the deceased husband of defendant, in answer to which the defendant pleaded a general denial.

On trial judgment was rendered against-defendant as prayed for, and she appeals, and urges that the judgment should be amended and the demand of plaintiff rejected as to the amount alleged to have been paid by plaintiff to the Hardie & Glaspie Company for the account against defendant’s deceased husband, it being' urged that parol evidence was not admissible to prove the correctness of the account held by the Hardie & Glaspie Company against the deceased, and, further, that the evidence does not show payment of the amount alleged to have been paid by plaintiff to the Hardie & Glaspie Company.

The question as to the admissibility of parol testimony to prove the liability of the deceased husband is not involved in the suit, but the question is whether or not defendant had requested plaintiff to pay the amount alleged to have been paid by it to the Hardie & Glaspie Company, and whether the amount was paid; as it must be conceded that defendant, after the death of her husband, was at liberty to pay his debts or those of the community, and that she had, as any one else would have had, the right to request another to pay the account, and bind herself for the repayment of such amount.

While the evidence does not show that defendant instructed plaintiff to pay the Hardie & Glaspie Company any specific amount for the account, it is stated by the president of the plaintiff company that defendant had requested it to pay the account, and that plaintiff paid one hundred ninety-three and 77-100 dollars to the Hardie & Glaspie Company for the account, and that Mrs. Litton had promised to repay the amount.

There is not any evidence in conflict with the statement that the account had been paid at the request of Mrs. Litton, or with the statement that Mrs. Litton had, after the amount had been paid by plaintiff, promised to repay same, and although the evidence is not as definite as it might have been, there is not any indication that Mrs. Litton was under any duress or that any fraud had been practiced by which Mrs. Litton had been induced to request plaintiff to pay the account held by the Hardie & Glaspie Company or to obtain her promise to repay the amount or her ratification of the action of plaintiff company in paying the account, and we are of the opinion that the proof was at least sufficient to make a prima facie showing.

The defense that the amount was not paid by plaintiff is based upon the evidence showing that the payment was made by the president of plaintiff with his personal check. However, the evidence shows that the payment was made for the plaintiff company, and it is not suggested that the judgment will not be binding on or shut off any possible claim that the president of the plaintiff company could have against the defendant by reason of the payment having been made with his personal check.

The judgment appealed from is therefore affirmed.


author: ODOM,- J.

text:
    No. 3191
    Second Circuit
    KROUSE v. STEWART ET AL.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      L. K. Watkins, of Monroe, attorney for plaintiff, appellant.
    Mclnnis and Campbell, of Minden, attorneys for defendants, appellees.
   ODOM,- J.

Plaintiff and defendants are all children or descendants of Mrs. Rosaura Krouse who died in 1918. In July, 1911, the said Mrs. Krouse, who owned as her separate property some 390 acres of land near Minden, Louisiana, entered into a purported lease contract with one of her sons, C. P. Krouse, plaintiff here, whereby she leased to him all of said land for a period of 25 years. The consideration for the lease as expressed in the contract, which was signed by both parties and duly recorded, is “$1,000 heretofore received by lessor from the lessee, constituting 'a debt due by her to said lessee which debt is hereby cancelled; and the further consideration of the care and support given the lessor by said C. P. Krouse for the past 16 years; also the improvements put on the property of the value of $1,000 by said C. P. Krouse.”

The said contract contained the following stipulation: “Said C. P. Krouse shall and is hereby granted partly for the above consideration the right to purchase the property herein described at any time during the term of this lease for the price and sum of $3.00 per acre.”

Three years later, in 1914, C. P. Krouse exercised his option to purchase the land under the last quoted clause of the contract, and accordingly, Mrs. Krouse executed a deed transferring to him 310 acres of the land for the purported cash consideration of $3.00 per acre.

Mrs. Krouse died in 1918. Shortly after her death, her other forced heirs sued the vendee to set the sale aside on the ground that it was a fraudulent simulation. The District Court set the sale aside and that judgment was affirmed on appeal by this Court on January 27, 1920.

In that suit, C. P. Krouse, defendant, who is plaintiff here, made two alternative demands, one of which was that the lease from his mother to him be declared a valid obligation. For some reason, the District Court did not pass on that part of defendant’s alternative demand, and, while this Court said this should have been done, yet inasmuch as it was not, defendant’s demand in that respect was dismissed as in case of non-suit.

The present suit is by C. P. Krouse against the other heirs of Mrs. Krouse for specific performance of the contract above referred to, demanding that said heirs now execute in his favor a deed to said property at $3.00 per acre under the option given him to purchase.

There were exceptions, both dilatory and peremptory, filed by defendants, which were either overruled or referred to the merits. Defendants also filed pleas of estoppel and res actjudAcata which were referred to the merits. Reserving their rights under all exceptions and pleas, defendants answered setting up that the pretended option and contract entered into by Mrs. Krouse and C. P. Krouse in 1911, was null and void as having been given without consideration; that the price stipulated was vile and insignificant, the price named being less than one-fourth the value of the property; that the effect of the contract was to divest Mrs. Krouse of all her property; and that it was void for want of mutuality and was a ym&um pactum.

There was judgment in the lower court rejecting plaintiff’s demands, and . he has appealed.

OPINION.

Our learned brother of the District Court rejected plaintiff’s demands on the ground of estoppel. The lease contract with an option to purchase was entered into between Mrs. Krouse and C. P. Krouse, plaintiff in this case, in 1911. Three years later, C. P. Krouse exercised his option to purchase the land and caused his mother to deed 310 acres thereof to him, at $3.00 per acre. The deed was duly recorded in the notarial records and C. P. Krouse took possession and held as owner until 1918, when his mother died, and for some years thereafter. When his co-heirs sued him to set aside the sale, he answered, alleging that he had exercised his option to buy and had bought the property for a valuable consideration which he had paid in cash. As a witness in his own behalf, he swore to those facts.

The District Judge was of the opinion that, having exercised his option to purchase the land, the contract and option of 1911 was at an end, and that C. P. Krouse has no rights under it now, and, having-alleged and sworn in the former suit between the same, parties that he owned the land, he is now estopped to deny these allegations, and that he has no standing in Court now against his co-heirs to force them to make title to him under the contract.

That holding may be correct. We have given the point no consideration for the reason that the case is before us, not only on the exceptions and pleas filed by defendants, but upon the merits as raised by the answer as well, and we prefer to go directly to the merits and rest our decision there.

Defendants specifically challenged the validity of the so-called contract of 1911 on various grounds, one of which was that it was entered into by Mrs. Krouse without any consideration whatsoever and was the result of a fraudulent scheme practiced by this plaintiff upon his aged mother in order to get possession of all her property to the detriment of her other children and descendants.

The record in the former suit was filed in evidence in the present suit. Both records are voluminous, but we have laboriously read them both and arise from that reading thoroughly convinced that the contract which plaintiff now seeks to enforce was without any consideration whatsoever, and was therefore never binding on Mrs. Krouse, and is not binding upon her heirs; . and furthermore, that the price stipulated at which C. P. Krouse might purchase the land was inconsiderable as compared with the real value of the property, and was therefore vile.

The facts as disclosed by the record are. that Mrs. Krouse and her husband, Dr. Krouse, had eight children. Dr. Krouse died leaving no property. Mrs. Krouse, his wife, however, owned in her own name and right considerable real estate, including the 310 acres here involved, on which there was a farm in good state of cultivation. After her husband’s death, Mrs. Krouse turned her business, including the management of the farm, over to one of her sons, Otto, who looked after it and his mother until his death, about 1895. After Otto’s death, the plaintiff, who was single, took his place in the household of his mother, as well as the possession and management of the farm. All the other children, except possibly two, had left home and these two soon left. The plaintiff and his mother lived together- on the homestead from 1895 until her death in 1918. During all of that time, plaintiff had entire charge of the farm, as well as some live stock, all of which belonged to his mother. During a portion of the time, he leased some of the land on shares and at times hired labor to help make the crops. But, during the whole time, he paid his mother no rent and never accounted to her for any of the revenues from the property. Whatever he made, he claimed and kept as his own. His mother got nothing above the bare, and we think, scant necessities of life. We are not alone in our conclusion- that what little she got was doled out to her by her son with a miserly hand. The late Judge Porter, who was the organ of this Court in the former suit in which the present plaintiff was defendant, in discussing the conditions under which Mrs. Krouse lived with her son, said:

“And while we do not give full credit to a good deal of the testimony which is designed to prove that her life with the defendant was one of abject poverty, it is made clear that she either denied herself or was denied by her son of all the luxuries and many of the necessities of life. She led the life of a recluse, rarely if ever leaving home, even for the purpose of attending church.
“And now the son who has enjoyed the use of the place, and we judge that it is and has been a productive one,—for more than twenty years, claims that he is the owner of it.”

The testimony makes it clear, in fact the plaintiff himself says, that from the time he took charge in 1895 until 1911, the date on which he procured-from his mother the contract which he now attempts to enforce against his co-heirs, his mother was in good health and very active. She kept the house, did all of the cooking—not only for herself and the plaintiff, but for the hired hands as well. Plaintiff says that for some years prior to her death, she was feeble, and that he got colored women to do the milking and some of the housework. But that was after 1911—after the date on which this contract was entered into. Such were the conditions for sixteen years prior to the date of the contract which plaintiff now seeks to enforce.

Now what were the considerations of that contract? It recites that it is “the sum of $1,000, heretofore received by the lessor (Mrs. Krouse) from the lessee (plaintiff), and heretofore constituting a debt due by her to said lessee which debt is hereby cancelled, and the further consideration of the care and support given the lessor by the said C. P. Krouse for the past 16 years, also the improvements put on the property of the value of $1,000.”

Plaintiff says that the debt of $1,000 was for amounts which he paid for his mother. But he does not say that these debts were due when he took charge of the property in 1895, except possibly the funeral expenses of his brother, Otto, which he paid and seems to have charged to his mother. If it be conceded that plaintiff did pay out as much as $1,000 for her, which we doubt,, that amount would be more than offset by the value of the use of the property for 16 years. If he had allowed his mother only $62.50 per year for home, farm and live stock, he would have been due her $1,000. But, as stated, he allowed her nothing—accounted for nothing.

The next item is for “care and support for 16 years.” But she was living in her own house, on her own farm and was caring, not only for herself, but for plaintiff also. She gave him a house to live in, made his beds, cooked for him and his hired hands, to cultivate, not hi¿ farm, but hers. All she received for her/services as milkmaid, cook and housekeeper was what food she ate and enough cheap clothes to cover her body.

As to the improvements on the land, plaintiff says he cleared some land and built some cabins, but that was after 1911. He kept up the fences, but he had the use of the land under fence.

Therefore, taking plaintiff’s own theory of the situation, he took charge of his mother’s property, including a productive farm, lived in her house, got the benefit of her services, paid her nothing therefor, but charged her for everything, even for food, and sets out these charges as a consideration for the contract.

From the record, it is patent that plaintiff received from his mother vastly more than the amount which he claims to have paid out for her and the value of the improvements which he says he made on the farm. It follows, therefore, that at the time this contract was entered into in 1911, Mrs. Krouse was in no sense indebted to him, and, as the consideration ’ expressed in the contract is' her indebtedness to him, there was no consideration at all.

Defendants allege that the price of $3.00 per acre was vile, and the testimony shows that it was. Included in the tract which she agreed to sell was the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter of Section 20. On January 7, 1914, Mrs. Krouse and plaintiff sold that 80 acres of land at $10,00 per acre cash. A number of witnesses testified that the entire tract was worth from $10.00 to $12.00 per acre in 1911, and at least $20.00 per acre now. There was approximately one million feet of merchantable timber on the land in 1911, which at the then prevailing price of $1.00 per thousand was worth as much or more than the agreed price of the land, including the timber.

In the making of this contract, we think Mrs. Krouse was influenced and dominated by this plaintiff. We cannot otherwise account for her conduct in making a contract with her son which was wholly against her interest. By that contract, she divested herself of her home and all of her property for 25 years, without reserving even the right to occupy the house. She was to receive nothing in the future during the life of the lease. Under that contract, if valid, the son could have put her in the road at any time. Under that lease, her property was wholly worthless. It was tied up in the hands of plaintiff for a quarter of a century without any future consideration. When it was made, Mrs. Krouse had already lived out her allotted “three-score and ten” years, and, judging from her son’s conduct towards her in the past, she could not reasonably hope that he would do anything for her in the future. In addition to that, plaintiff was given an option to purchase the property at any time within 25 years at a vile price, and he assumed no obligation to purchase even at the end of that time.

The plaintiff’s pretensions of good faith were repudiated by both Courts in his former suit. In that suit, he reconvened for the $1,000 indebtedness which he claimed against his mother for advances and $800.00 for support. The District Court rejected his demands and this Court affirmed that decision.

For the reasons assigned, the judgment rejecting plaintiff’s demands and dismissing his suit, at his costs, is affirmed.


text:
    No. 2665
    Second Circuit
    BATES, TRUSTEE, v. S. & P. VULCANIZING CO.
    (April 5, 1929. Opinion and Decree.)
    Melvin F. Johnson and D. C. Scarborough, Jr., of Shreveport, attorneys for plaintiff, appellee.
    Robert Roberts, Jr., and Prank A. Blanchard, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, George D. Bates, Trustee of the Portage Tire & Rubber Company, bankrupt, brought this action against defendants, S. & P. Vulcanizing Company, a commercial partnership, and J. A. Porter and W. G. Gibbs, the individuals composing the partnership, to recover judgment against them in solido for an alleged balance of nineteen hundred eighty-eight and 37-100 dollars, with legal interest from judicial demand, for merchandise, automobile tires and tubes. alleged to have been sold to the partnership, as per statement of the account annexed to the petition, the payment of which it is alleged, the individual members of the partnership had guaranteed, as per written act of guarantee annexed to the petition.

■The defense interposed is that the merchandise had been sold under consignment under an agreement in the nature of a sales agency in which the Portage Company, principal, had agreed to furnish the S. & P. Vulcanizing Company, agent with such tires as it ordered, which were to be paid for monthly as the merchandise was sold and with the right of returning such part of the merchandise unsold to be credited on the account, and that the principal had violated the agreement by refusing to ship, merchandise ordered by defendant, whereupon defendant had offered to return the stock of merchandise on hand, which was refused by plaintiff, and that the tires had been sold for the account of plaintiff, and defendant reconvened for judgment for damages for loss of profits, expenses incurred on the faith of the contract, and expenses of storing stock offered to be returned, and other claims incident to the contract, aggregating two thousand seventy-nine and 42-100 dollars, less the amount at which the merchandise offered to be returned had been sold, or eight hundred twenty-one and 35-100 dollars.

On trial judgment was rendered in favor of plaintiff for the full amount claimed, rejecting defendant’s reconventional demand, and defendant appealed.

The merchandise on which the balance is claimed to be due was on orders of defendant of date July 4, 1921, which were made out on blanks furnished by the Portage Company on which there was printed in red: “Positively no goods sold on consignment,” and although the representative of defendant who signed the order states that he was aware of the stipulation, he contends that the orders were given under a written contract which provided for the shipment to be made on consignment, as alleged in the defense, and that the Portage Company had kept the contract with the fraudulent intent of contending that the merchandise had been sold otherwise than as agreed upon.

There was a written contract filed by plaintiff which was signed by defendant on July 5, 1921, under which defendant was given the exclusive right to sell the products of the Portage Company, but that contract provides that,

“Second party (defendant) agrees to give first party reasonable notice for fulfillment of his orders and agrees to pay promptly on the tenth of the month for any tires or any tubes purchased during the preceding month, and if payment is so made a cash discount of five per cent (5%) will be allowed.” and further stipulates, that—
“This agreement when signed in triplicate and accepted by first party shall supersede all previous agreements and second party will not at any time assert or claim that any terms of this agreement can be or have been altered, waived or modified, except by a written endorsement thereon signed by an executive officer of the first party.”

and. the evidence on the part of plaintiff was to the effect that that instrument evidenced the only contract had with the defendant.

Defendant, under the allegations of fraud, offered evidence for the purpose of showing that at the time the contract filed in evidence by plaintiff had been signed, “riders” or written modifications were attached to the contract, which made provision for merchandise ordered to be shipped on consignment on the terms and conditions as set forth in the defense, but the evidence failed to establish the defense.

It appears from the evidence offered by defendant that the order for merchandise which was not shipped was given on October 12, 1921, and the agreement to which defendant refers was, made with salesmen representing the plaintiff at that time, with the understanding that the agreement would .be accepted by the Portage Company, as the representative of defendant who conducted the negotiations stated that the merchandise ordered under that agreement was not shipped, and his statement is confirmed by the statement of the bookkeeper of defendant as well as by the fact that the guaranty of the individual members was signed on July 16, 1921, which the representative of defendants says related to prior purchases and not to the inchoate agreement claimed to have been negotiated with the salesmen of the Portage Company, which was entirely in conflict with the instrument evidencing the agreement produced by plaintiff and the signed orders for merchandise given by defendant.

Defendant carried the burden of proof to establish that the inchoate agreement claimed to have been made with the Portage Company had been accepted or confirmed by the Portage Company, and the evidence does not show that the proposed agreement came into the hands of the Portage Company, or that any shipment was made by it after the time the evidence indicates that such an agreement had been submitted to the Portage Company.

The reconrentional demand, based upon the alleged violation of a contract of agency, fell with the failure to prove the contract, and the judgment is correct and is affirmed.


text:
    No. 3484
    Second Circuit
    SMITH v. TOOKE PRUDENTIAL INS. CO. OF AMERICA, GARNISHEE
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Cook and Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellant.
    Melvin P. Johnson, of Shreveport, attorney for garnishee, appellee.
   REYNOLDS, J.

In this case the plaintiff, Homer S. Smith, haying obtained judgment against the defendant, L. M. Tooke, caused a writ of fieri facias to issue thereon, and under a petition alleging that the Prudential Insurance Company of America was indebted to the defendant or had in its possession or under its control property belonging to him, a writ of garnishment was issued and served on the garnishee, which answered that it was not indebted to the defendant and did not have in its possession or under its control any property of his, and the plaintiff having traversed the answers of the garnishee, a trial was had, and there was judgment sustaining the answers of the garnishee and dismissing the garnishment proceeding, and the plaintiff appealed".

The defendant, L. M. Tooke, testified that from the second day of January, 1928, to the day of the trial (which took place on October 16, 1928), he had received from the garnishee $1612.47 as commissions on policies of insurance sold by him for it, and, that these commissions had been received by him before the issuance of the writ of garnishment.

“Q. Is it not a fact that the Prudential Insurance Company requires the cash paid before delivery of the policy?
“A. Yes, sir.
“Q. Is it not a fact that you always get your share of the commissions, or deduct it out of file payment, before the policy is ever, delivered?
“A. It is taken out.
“Q. Before the policy is delivered to the insured?
“A. When I settle.
$ $ * ‡ $
“Q. ■ Have you ever received a check or voucher -in payment from the Prudential Insurance Company?
“A. No.
“Q. This money you deducted; as I understand it, you received a certain amount; you received payment from a man whom you sold a policy to, on the premium, you deducted your share and sent the balance to the Prudential Insurance Company?
“A. Yes.
“Q. That is the money you referred to, this sixteen hundred dollars?
“A. Yes, sir; I have authority to deduct it, take it out, and then send balance to the company.
“Q. It was really payment to you from the Prudential Insurance Company for selling those policies?
“A. Yes.”

The plaintiff contends that this evidence shows that the garnishee was paying the defendant an average sum of $169.73 monthly and that under the provisions of Act No. 115 of 1928 he is entitled to judgment against the garnishee ordering it to pay him one-half of that amount, or $84.85 monthly on his judgment against the defendant until it is paid.

The act in question only authorizes the seizure of “wages or salaries” and in our opinion what defendant received for the services he rendered the garnishee was neither wages nor salary but a commission, which is defined to be the compensation of an agent.

In Theo. Brierre & Sons vs. Their Creditors, 43 La. Ann. 423, 9 So. 640, where the question was whether a traveling salesman of Theo. Brierre & Sons was entitled to the privilege granted by article 3191 of the Civil Code to the salaries due “clerks, secretaries, and other persons of fhat kind,” his work being to make sales of the goods dealt in by his employer and receive one-half of the profits and bear one-half of the losses of the business done, it was held that he was not a clerk nor his remuneration salary.

In Weems vs. Delta Moss Company, 33 La. Ann. 973, it was held that one employed as a salesman or agent to solicit sales of his employer’s wares, at a fixed monthly compensation and in addition a commission on all sales effected by him, was not a clerk within the meaning of article 3191 of the Civil Code according a privilege to clerks for their salaries.

We do not think the Legislature intended to make commissions subject to seizure, for the reason that their basis is too uncertain to predicate a judgment on. Where one is employed at a fixed salary by the day, week, month, or year, what may be due him at any future date, should he continue in the employment, is easily calculable, and might be used as a foundation for judgment against the garnishee, but earnings on a commission basis have no such certainty.

It is stated in 20 Cyc. 1007, that, as a general rule, debts that are uncertain or contingent and therefore may never become due or payable, are not the subject of garnishment; and that only debts in nature absolute and payable at some time, without contingency, can be reached by garnishment.

In Maduel vs. Mousseaux, Union Insurance Company garnishee, 29 La. Ann. 228, where it was sought to subject to garnishment process salary claimed to be owing to the judgment debtor for services in his capacity of president of the garnishee, and the garnishee having answered that it “does not at present, nor did it at the time of seizure and service of interrogatories, owe any money to the judgment debtor, and that it admitted that he was its president and received from it monthly wages in a stated sum “for his personal services rendered to the said company in his aforesaid capacity of president,” it was held that:

“It is only property in the possession of the garnishee, or a debt absolutely due by him, though not exigible, at the moment the interrogatories are served on him, that can be seized under a garnishment process. A prospective, contingent debt cannot be reached by such process.”

In Coleman vs. Fennimore, 16 La. Ann. 253, it was held that answers acknowledging no present indebtedness to defendant, nor any future indebtedness except contingent upon an uncertain event, will not bind garnishees.

It was laid down in Silverman vs. Grinnell, 165 La. 587, 115 So. 789, that:

“It is the well recognized rule that a garnishee owes only what is due the debt- or at the time the interrogatories are served upon him.”

In Cargill vs. Otwell, Ruston State Bank, garnishee, 3 La. App. 197, where it was sought to subject to garnishment process money on deposit- with the garnishee that had been loaned by it to the judgment debtor to enable him to plant, cultivate and gather agricultural products, on which it would have a privilege for the loan, it was held that the money on deposit constituted a trust fund, that it could not be diverted from the purposes to which it was dedicated by seizure at the instance of a third person, and that the judgment debtor’s interest in it could not be subjected to garnishment.

We are of the opinion that commissions that may become due the agent of a life insurance company for services rendered by him in selling life insurance are neither wages nor salary within the contemplation of Act No. 115 of 1928 and that they cannot be subjected to garnishment process.

Finding no error in the judgment appealed from, it is ordered, adjudged and decreed that it be affirmed.