author: TALIAFERRO, J.

text:
    No. 2913
    Second Circuit
    CASTLE GROCERY CO. v. SASSER (Sasser, Intervener)
    (April 9, 1931. Opinion and Decree.)
    Crow & Coleman and E. B. Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Galloway & Johnson, of Shreveport, attorneys for interveners, appellees.
   TALIAFERRO, J.

Plaintiff instituted suit in the city court of Shreveport against defendant,4 W. C. Sasser, on open account, for $123.61. No appearance being made nor answer filed by defendant, judgment on default was rendered against him for the amount sued for, with' 5 per cent interest from December 5, 1925, which was signed December 29, 1925. After the lapse of several months, execution issued on said júdgment, and the city marshal seized and took into his custody a Ford touring car, as the property of defendant, and proceeded to advertise same for sale.

On October 2, 1926, defendant, W. C. Sasser, representing his. minor daughter, Sybil Sasser, filed intervention and third opposition against plaintiff and said city marshal, asserting ownership of the seized automobile, and alleged that same was purchased by said minor “with her own separate property and funds” from Dickinson Motors, Inc., of Shreveport, February 12, 1926, for the price of $189, of which amount $75 was paid in cash and balance evidenced by eight promissory notes of said minor secured by mortgage on the car.

Third opponent prayed for judgment recognizing her ownership of the seized car, that same be restored to her, and that plaintiff, Castle Grocery Company, be condemned to pay damages to the extent of $30, as attorney’s fees, and costs.

Plaintiff interposed an exception of no cause or right of action, which was overruled, and then filed answer, denying that the car legally belonged to said minor, averring that the alleged sale to her was an absolute nullity on account of her minority; that she never paid the purchase price thereof from her own separate funds and property, but that same was paid by her father; that said alleged purchase of the car was also a nullity, and was void “because of the fraudulent practices of the said Sybil Sasser while so practicing in collusion and conspiracy with her father and mother.”

After trial of the issues presented by the intervention and third opposition and answer thereto, judgment was rendered by the city court recognizing Sybil Sasser as the owner of the car in question and ordering it restored to her. Plaintiff was condemned for attorney’s fees and costs.

A motion for new trial was filed, supported by affidavit, on following grounds, viz.:

“That it can prove by J. Theron Drown, a resident of the City of • Shreveport, Louisiana, an automobile salesman, that he sold the car to Mrs. Sybil Sasser, the wife of W. C. Sasser, after negotiating with W. C. Sasser for the purchase of the car and that to the best of his recollection, knowl-^ edge and belief he never knew Miss Sybil" Sasser in the transaction and knows of his own knowledge that he did not negotiate with her for the purchase of the car, nor sell it to her.”

It is alleged in the motion for new trial that this evidence is newly discovered, not within the knowledge of plaintiff before, after due diligence, and is material to the issues presented in the question of the ownership of the said car.

The motion for new trial was overruled and plaintiff appealed.

If the facts alleged in the motio’n for new trial can be established, it is likely such would have a material bearing upon the rights of the parties to this litigation. If the purchaser of the car in question was the wife of defendant, "W. C. Sasser, and not his daughter, for whom he intervened, this would present a situation, perhaps, quite different to that which confronted the lower court. A significant fact bearing upon this line of discussion is that to the act of sale of the car,, appearing in the record before us, the purchaser’s -signature appears thus: “Mrs. Sybil Sasser,” while the affidavit delivered to the city marshal for the purpose of securing release of the car, or requiring him to protect himself by bond of indemnity, is signed “Miss Sybil Sasser,” and the handwriting in each instance does not appear to be the same.

Attention is called in appellee’s brief to the fact that a line has, been drawn through that portion of the judgment appealed from allowing attorney’s fees. It is argued that such erasure has been done without authority. Plaintiff by supplemental brief urges that this situation is another reason why a new trial should be granted.

The evidence adduced on trial of the case in the city court does not appear in the record, and without it we are unable to satisfactorily discuss some matters apparently incompletely reflected by the record.

We are of the opinion the motion for new trial filed by plaintiff should have been sustained to the end that a full disclosure of all the facts surrounding the purchase and ownership of the ear in question might have been had. C. P. arts. 560, 561; Stone v. Rose, 2 La. Ann. 225; Robinson v. Howell, 22 La. Ann. 524; Auto Electric Co. v. Wilkinson, 1 La. App. 658.

For the reasons herein assigned, the judgment appealed from is reversed and set aside, and this case is remanded to the city court of Shreveport for new trial. Costs of appeal are to be paid by appellee; all other costs to await final determination of the case.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    No. 2930
    Second Circuit (Second Division)
    KRUEBBE CO., INC., v. KIDD-RUSS REALTY CO., INC.
    (April 9, 1931. Opinion and Decree.)
    D. C. Scarborough, Jr., of Shreveport, attorney for plaintiff, appellant.

      Edward Barnette, of Shreveport, attorney for defendant, appellee.
   STEPHENS, J.

The plaintiff, a corporation engaged in business of selling plumbers’ supplies and fixtures in New Orleans, La., brings this' suit against the defendant, Kidd-Russ Realty Company, a corporation of Shreveport, La., to recover the sum of $122.93, the alleged balance due on account for goods sold and delivered to the defendant on August 23, 1924.

The defendant answered denying generally the allegations of plaintiff’s petition, and for special defense set up that, while there were some goods ordered, and some shipped and delivered, there was an agreement between plaintiff and defendant by which said goods were turned over to one McCleery, Shreveport representative of the plaintiff, by virtue of which defendant was relieved from liability.

Prom a judgment rejecting its demands, the plaintiff appeals.

On August 15, 1924, the defendant wrote the Shreveport office of the plaintiff corporation as follows:

“Kruebbe Co., City
“Please del to Std Plbmg Co for use on ’ our job 3134 Judson—5 Room & bath cotteg material selected through Mr Troy— send invoice to us for payment. We will pay you direct. ,
“Yours Truly,
“Kidd Russ Realty Co.
“B. P. Kidd.”

• On ■ August 23, 1924, certain plumbing fixtures and supplies were delivered by the plaintiff to the Judson street job referred to, and other such fixtures and supplies to the shop of the Standard Plumbing Company, presumably at the direction of Mr. Troy, the owner of the j Standard Plumbing Company. Shortly thereafter Mr. Troy, for some reason in no way related to this transaction, was incarcerated in the parish jail. On learning that Mr. Troy’s activity was thus restricted, the defendant, through its secretary-treasurer, Mr. Trickett, requested Mr. McCleery, the local representative of the plaintiff, to permit it to return the goods which had been delivered. This Mr. Mc-Cleery agreed to, and pursuant to which agreement the plaintiff received certain articles of the goods and credited the defendant’s account with the purchase price thereof amounting to $67.45.'

This suit .is to recover the price, as shown by the account, of those articles alleged to have been delivered and never returned.

The defendant’s special defense set up in its pleadings, and further augmented by the evidence, is that it is relieved from liability because the plaintiff’s representative agreed, not only to accept the goods in return, but to accept the responsibility of securing their return from the Standard Plumbing Company, the sole owner of which company was’ in jail.

The general defense, which is urged earnestly in the argument of counsel, is that the plaintiff has failed to establish that the account s.ued on is true and correct, and that the items of which it is composed were delivered. *

The plaintiff rests its case upon the depositions of Mr. Albert H. De Pass, its secretary-treasurer, and Mr. D. N. McCleery, its Shreveport representative. The former, living in New Orleans, had no knowledge of the correctness of the account or of the delivery of the goods, other than that re-fleeted by the books of the plaintiff corporation. The order was received by the Shreveport office and delivery made from the stock in Shreveport. His only testimony of value to plaintiff is that he had a conversation with Mr. Russ, president of the defendant company, in Shreveport in November following the transaction, and that Mr. Russ acknowledged the correctness of the account. Mr. Russ denied that he acknowledged its correctness. He stated that he knew nothing about it, and could neither admit or deny its correctness. This seems reasonable, in view of the fact that the goods were never in the possession of the defendant, except through the Standard Plumbing Company.

Mr. McCleery did not testify to the correctness of the account. He stated that the goods were delivered, but he did not state the specific articles, nor the value thereof. He did not state in what sum the defendant is indebted to plaintiff. He testified that he was present when Mr. De Pass talked to Mr. Russ. His version of what was said on that occasion corroborates Mr. Russ rather than Mr. De Pass. He did not testify that Mr. Russ acknowledged the correctness of the account, but that Mr. Russ did not deny the correctness of the account.

We think it clear that the plaintiff has not shown the correctness of the account, nor the delivery of the goods, with- legal certainty.

We will not discuss the special defense, except to state that the burden of establishing it rests upon the defendant, and that, after a careful reading of the record, we find that that burden is not sustained by the evidence.

It appearing that the plaintiff did not present sufficient evidence to make out its case, a proper judgment would be one of nonsuit.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and set aside, and that there be judgment dismissing plaintiff’s demand as in case of nonsuit, the plaintiff to pay the costs of the lower court, and the defendant the costs of appeal.


author: CULPEPPER, J.

text:
    No. 2917
    Second Circuit (Second Division)
    GRIFFIN v. MOTOR TRANSIT CO. ET AL.
    (April 9, 1931. Opinion and Decree.)

      William C. Boone, of Homer, and Boone &■ Boone, of Many, attorneys for plaintiff, appellant.
    McClendon & Seals, of Homer, attorneys for defendants, appellees.
   CULPEPPER, J.

Prom a judgment sustaining an exception of lis' pendens and dismissing plaintiff’s suit, plaintiff has appealed.

However, the appeal has apparently been abandoned by appellant, as she has not made an appearance in this court or filed any brief.

The pleadings and testimony in this case show it to be the same parties plaintiff and defendants, the same cause of action, for the same object, and brought before the same court, as contained in the suit filed June 10, 1926, in the lower court, and numbered 7931 on the docket of that court.

The suit first brought was, never discontinued by the plaintiff. The record shows that it was dismissed by judgment of the lower court on September 18, 1926, on an exception of no cause or right of action filed by defendants, whereupon the plaintiff prayed for and was granted an order of appeal to this court immediately upon the judgment of dismissal. The records of this court show that the judgment of the lower court was affirmed on April 10, 1930. See Mrs. Ruby Griffin, v. Motor Transit Co. et al., 13 La. App. 151, 127 So. 438. The present suit was filed September 30, 1926.

Under the plain provisions of article 94 of the Code of Practice, as amended by Act No. 62 of 1918, the same cause of action cannot be brought before the same court except by discontinuing the suit first brought before the answer is filed. The article of the Code further provides that in such cases the defendant shall be entitled to have the second suit dismissed and to recover costs.

Prior to the amendment above referred to, an exception of lis pendens had no legal basis to rest on when predicated upon the pendency of a suit in the same court as that in which it is pleaded. Saint v. Martel, 126 La. 245, 52 So. 474.

Since the amendment of the Code, however, such an exception is well pleaded, as the article, as amended, is enlarged in its scope so as to prohibit the bringing of two suits on the same cause of action before the same court, unless the suit first brought shall have been discontinued by plaintiff before answer is filed. Weems, v. Moise, 3 La. App. 224.

This suit is clearly within the prohibitory provisions of the Code, and the lower court was correct in sustaining the exception and dismissing the suit. The judgment is affirmed; the plaintiff to pay costs cf both courts.


text:
    No. 2999
    Second Circuit
    MANDEL v. McANN
    (April 9, 1931. Opinion and Decree.)
    Chas. F. Crane, W. H. Sebeen and J. B. Herold, of Shreveport, attorneys for plaintiff, appellant.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

This is a petitory action in which the plaintiff seeks to. be decreed the owner, and as such entitled to the possession of, the SE% of SW% of section 14, township 15 north, range 11 west, Bossier parish, La.

The plaintiff alleges that the property in question was acquired by David I. Hooks under mesne conveyances out of the United States government on November 4, 1862. This is admitted by the defendant, and the titles pleaded by each show that David I. Hooks was the common author under which each party claims ownership; for each is. asserting title by mesne conveyances out of the said Hooks.

According to the allegations of plaintiff’s petition, the property in question was sold by the sheriff of Bossier parish under order of court, in the matter of the succession of David I. Hooks, on February 1, 1868, and was purchased by George A. F. Poole under deed duly recorded. Thereafter, the heirs of G. A. F. Poole, under date of November 12, 1909, had a partition of all the properties belonging to said Poole and his deceased wife in community, in which partition the said 40 acres together with the other lands, totaling 197 acres, more or less, were set aside to James R. Bryant, one of said heirs, the particular property set aside to the said James R. Bryant, including said 40 acres, being described as follows:

“SE% of SWÍ4, NW14 of SWK and that part of the S% of NW% lying south o£ Plat River in Section 14; that part of the SE% of NEÍ4 lying South of Plat River, and the SWy, of NEy3 and 26 acres off of the North part of N¥% of SE^ of Section 15, T. 15 N., R. 11 W., containing 197 acres, more or less."

The plaintiff further alleges that the said 197 acres acquired by the said Bryant under the partition proceedings referred to were incorporated by Bryant into one plantation and has since that time, as one plantation and under the identical description, passed by mesne conveyances out of the said Bryant into the plaintiff. Plaintiff further alleged that the defendant, D. J. McAnn, was in the illegal possession of the 40 acres referred to, and the prayer of his petition is that he be decreed the owner of the 40 acres referred to and entitled to the possession thereof.

The answer, as stated, admitted that the 40 acres was acquired by David I. Hooks by mesne conveyances out of the United States government on November 4, 1862, but alleged that the sale of said property on November 1, 1868, by the sheriff in the succession proceedings of David I. Hooks, deceased, w^s null and void for the reason that no order of court authorized said sale, nor was there any commission issued to make said sale, and that by said sale the said George A. P. Poole-acquired no title to said property. The answer further alleged that on October 27, 1869, the sheriff of Bossier parish, in the matter of the succession of David I. Hooks, acting pursuant to a commission to him directed of date August 10, 1869, issued in said succession under authority of an order of the parish court of Bossier parish, La., sold said properties to pay debts of the succession, and that the land in question was acquired by John R. Griffin under deed duly recorded on November 6, 1869, in Conveyance Book 7, page 555, Records of Bossier Parish, La., together with other properties, which said properties purchased by the said Griffin in said succession sale are set forth in said deed as follows:

“Ey2 of SE% of Section 15; S% of SW % of Section 14, T. 15 N., R. 11 W., containing 160 acres, more or less."

And that said 160 acres sold to the said Griffin in said succession sale formed one solid body of land, each of the governmental subdivisions composing the same being contiguous tracts,, and that said defendant held title to the said 160 acres purchased by the said Griffin in said succession sale under mesne conveyances out of the said Griffin, which said conveyances were set forth in detail in article 14 of defendant’s answer. Defendant further pleaded that the respective owners of said 160 acres, which includes the 40 acres in controversy, had, during their ownership, been in actual corporeal possession thereof, cultivating a part of said 160 acres yearly, and that said deed under which each of the authors in title of defendant acquired the said 160 acres were translative of ownership, and defendant pleaded the prescription of ten years, acquirendl causa, as vesting absolute title in him in case it were found that he did not have a legal title to all of said land by virtue of the deeds under which he claimed title thereto. He prayed that certain parties, as his authors in title, be called in warranty; that after due trial plaintiff’s demands be rejected and his suit dismissed, but, should judgment be rendered in favor of plaintiff, then that the defendant have judgment against the parties called in warranty for the amount paid by him for said land, as well as for all damages he might sustain by virtue of said suit.

Upon these issues the case went to trial and resulted in a judgment sustaining the plea of--prescription, and rejecting the. demands of the plaintiff, and from this judgment plaintiff prosecutes this appeal. Defendant has answered this appeal, praying that the judgment be amended so as to •decree him to have the legal as. well as the prescriptive title.

The plaintiff and defendant both hold title to the 40-aere tract by straight, unbroken chain out of the succession of David I. Hooks; the said David I. Hooks having acquired title by mesne conveyances from the United States government.

The defendant contends that the succession sale under which George A. F. Poole is alleged to have acquired title, and through whom plaintiff claims, is an absolute nullity for the reason that no order of court authorized said sale, nor was there "any commission issued to make such sale.

We are convinced of the correctness of defendant’s position. Defendant’s Exhibit 15 shows the entire proceedings, by which George A. F. Poole is alleged to have acquired title to the 40 acres in question. A petition was filed in the succession of •David I. Hooks by Anna J. Meriwether, as administratrix, in which she prayed thai a new and correct appraisement and inventory of all the property belonging to the succession be made, and that said property be sold for cash, subject to the benefit of appraisement by W. H. Hill, sheriff and ex-officio auctioneer.

The order which is attached to the petition in question authorizing the sale of properties to pay the debts, and directing that a new and correct inventory' and appraisement be made, was never signed, either by the parish judge or by the clerk of the district court. Thése proceedings further show that no writ of sale was ever issued to the sheriff to make said sale, and that there is no proces verbal attached to any writ executed by the sheriff showing said sale to be made. The instrument therefore, evidencing a transfer of title from the succession to plaintiff’s ancestor in title, which is in the form of a deed from W. H. Hill, sheriff, to G. A. F. Poole, is clearly a nullity. It was incumbent on the plaintiff in this case to show that the sale under which G. A. F. Poole acquired ■title from the succession of D. I. Hooks was based on an order of court and a commission directed to the sheriff in pursuance thereof. . The ■ plaintiff has not only failed to sustain this burden, but the succession records, introduced by the defendant show, as a matter of fact, that the sale under which Poole claims title to the property was never authorized by the court and no commission ever issued to the sheriff to make said sale.

The unsigned order for the sale of the property which was filed in evidence by the defendant bears date of August 28, 1867, which is. the identical date the petition above referred to of the administratrix of the succession to provoke the sale was filed. The deed made by W. H. Hill, sheriff, to G. A. F. Poole is dated February 1, 1868, and recites that the lands embraced . in said deed were first advertised for sale to take place on November 16, 1867, the sale to be for cash and without the benefit of appraisement; that on the 16th day of November, 1867, said properties were offered for cash without any bids being received, and thereupon said sheriff re-advertised for fifteen entire days rhat he would sell said properties "on twelve months credit on December 7, 1867; and that on December 7, 1867, said property was sold and adjudicated to George A. F. ■Poole. Undoubtedly, the sale under which Poole is alleged to have acquired title is based upon tbe petition filed August 18, 1867, and tbe unsigned order filed on said date, and the succession records showing no authority from the court to make the sale, the sale was an absolute nullity.

The Supreme Court held in the Succession of Landry, 128 La. 333, 54 So. 870, 876:

“A sale of succession property, without an order of court, is an absolute nullity, which is not cured by the prescription of five years (Robert v. Brown, 14 La. Ann. 597); and a sale, upon terms other than those prescribed by the order, is a sale without an order of court (Smelser v. Blanchard, 15 La. Ann. 254).”

In Hyman v. Bailey, 13 La. Ann. 450, the court said:

“A party claiming title under a Sheriff's sale made by virtue of a fi. fa. in support of his title, must produce not only the sale of the Sheriff, but also the writ of execution, the Sheriff’s return and the judgment.”

In Clarkston v. Vincent & Co., 32 La. Ann. 613, the court said:

‘‘It has been often held that, when a party relies on a title acquired by a sheriff’s sale, he must show, not only the sheriff’s deed, but the writ and judgment on which the sale is based.”

The defendant claims title under a sale made by the sheriff in the succession of David I. Hooks on October 27, 1869, nearly two years after the alleged succession sale under which Poole claims to have acquired title. The record discloses that at this succession sale, John R. Griffin acquired the W/s of SE14 of section 15 and S% of SW% of section 14, township 15, range 11, and John C. Head the NE14 of NW% of section 23, township 15, range 11. The succession sale made by the sheriff under which John R. Griffin and John C. Head claim title shows that Anna J. Meriwether, as administratrix of the succession of David I. Hooks, petitioned the court to sell all the lands belonging to the succession to pay debts, and that an order was signed by L. W. Baker, parish judge of Bossier parish, La., directing that such a sale be made. This order is dated and filed August 10, 1869. Under the order, a writ of sale issued, directed to the sheriff of Bossier parish, authorizing him to make the sale. This commission issued on August 10, 1869. The proces verbal of the sheriff, annexed to the commission, reveals that in accordance with its provisions, he sold the succession properties on October 27, 1869, after due advertisement, and at said sale John R. Griffin bought the E% of SE 14 of said section 15 and S% of SW14 of said section 14, and John C. Head the NE % of NW14 of section 23.

The defendant holds the entire 200 acres just described under mesne conveyances out of John R. Griffin and John C. Head. The defendant, therefore, has produced legal evidence: that is, the petition for sale, the order of sale, the commission to sell, the proces verbal showing sale, and the sheriff’s deed evidencing the sale. Defendant, therefore, shows a perfect title, and it is evident that the reason for making this second sale in the' succession of David I. Ho^olcs on October 27, 1869, was due to the fact that it was discovered that no order of court authorized the sale made on December 7, 1868^ The title exhibited by the defendant appears to be perfect.

The map offered in evidence by the plaintiff shows that the 197 acres, to which plaintiff has a deed, is contiguous with the exception of the 40 acres in controversy. The 40 acres in controversy is the SE!4 of SW!4 of said section 14. This 40-acre tract attaches at a common point with the NW14 of SW1*! of said section 14, which NW14 of SW% of section 14 is contiguous to the rest ■ of the 197 acres claimed by the plaintiff. In other words, of the 197 acres covered and embraced in the deed held by the plaintiff, 157 acres is contiguous, but not so the 40 acres in controversy, for it only touches and is attached to the other 157 acres at a common point. The NW corner of the 40 acres in controversy is common to the SE corner of the NWy of SWy of said section 14, and the NWy of SWy is a part of the 157 acres that is contiguous. This 40 acres is all in the woods except a small part of the NE corner which the evidence shows has never been cultivated by the plaintiff but cultivated either by the owner of the NEy of SWy, that is, by a man by the name of Smith, or by the owner of the Wya of SE- % of section 14, that is, by a man by the name of Glover. The title of the defendant, as shown by his deed, covers the Ey of SEy of said section 15, S% of SWy of section 14, and NEy of NWy of section 23. A glance at the map will show all of said lands to be contiguous. This 200 acres has come down to defendant through a line of titles dating back to 1869. The undisputed oral evidence is to the effect that a portion of the. E% of SEy of section 15 was in cultivation as far back as 1889; that two negroes by the names of Turner and Bagley acquired the 200 acres described, in 1902, from the then owner, and that they moved on the E% of SEy at the time they acquired it and put in cultivation during the years immediately following, the greater portion of the SWy of SWy of section 14, and that about 120 acres, that is, all of- the E% of SEy of section 15 and SWy of SWy of section 14, has been in cultivation constantly since about 1902. The defendant, therefore, shows-not only a perfect legal title, but a perfect prescriptive title, since the 40 acres in controversy is not only embraced, together with the remaining 160 acres, making the 200 acres to which he claims title, but in every dee.d forming his chain of title, adjoins and is contiguous to the 120 acres of same which has been in cultivation since about 1902. Possession of part under title to the whole is possession of the whole.

In the case of Lee v. Giauque, 154 La. 491, 97 So. 669, 670, there were two tracts , of land conveyed in the same deed and these attached at a common corner. The Supreme Court, with reference to same, said:

“But that section does not form a continuous tract with any other part of the lands in controversy, being removed from all the other lands- mentioned in said reservation, except that the southwest point of said section 31 is common to the northeast point of the lands in section 1. * * *
“And to constitute a single tract of lan^, the lands must be so situated that one may pass from one part to the other without passing over the lands of another. But, as it is impossible to pass through a mere point, it follows that one cannot pass from said section 31 to section 1 without passing over other lands. See Anvil Hydraulic & Drainage Co. v. Code, 182 F. 205, 206, 105 C. C. A. 45, and authorities, there cited.”

In Anvil Hydraulic & Drainage Co. v. Code, 182 F. 205, at page 206, the United States Circuit Court of Appeals, Ninth Circuit,’ said:

“Two tracts of land which touch only at a common corner are not contiguous.”

We are of the opinion that the defendant is not only vested with a prescriptive title, as held by the district judge, but that he is also vested with .the legal title, to the 40 acres in controversy, and as such is entitled to the legal possession thereof. The judgment of the district court is therefore amended to conform to this opinion, and as amended is affirmed. "


text:
    No. 3040
    Second Circuit (Second Division)
    BRANDON v. SMITH
    (April 9, 1931. Opinion and Decree.)
    George Thurber, of Shreveport, attorney for plaintiff, appellant.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

This is a suit to recover $500 as liquidated damages for the alleged breach by the defendant of a contract for the exchange of certain real estate.

Plaintiff appeals from a judgment sustaining an exception of no cause of action and dismissing his suit.

The petition sets, forth: That on the 26th day of October, 1926, the plaintiff entered into a written contract with the defendant for the exchange of certain properties; and as a further consideration for the property conveyed to defendant by plaintiff, the said defendant agreed to pay the sum of $14,000, and that both parties agreed to have their titles in shape by November 1, 1926, and assumed other obligations, as shown by the contract attached to and made part of the petition. That the plaintiff and the defendant each deposited with I. A. Hill Realty Company a check for $500, drawn on banks in the city of Shreveport, as evidence of good faith; and it was so provided that if either failed to comply with his. contract, his check was to be forfeited to the other as liquidated damáges. That on or about October 29, 1926, the defendant wrote to the said I. A. Hill Realty Company, notifying it that he had stopped payment on his check, and further notifying said company that he would not comply with his part of the contract, which notification was communicated to the plaintiff on November 1, 1926.

That upon November 3, 1926, plaintiff called upon the defendant at his office and regular place of business in the city of Shreveport, La., and in the presence of two witnesses made demand on the defendant to comply with the terms of the aforesaid contract, and notifying him at the time that he (plaintiff) was ready to comply with his. part of the contract, and exhibited the said contract to- the defendant; whereupon the defendant, in the presence of the witnesses, refused to comply with the said contract, and that the defendant was thereby placed in default. That plaintiff has been damaged by loss of time and opportunities for the sale of his property, all as the result of the breach of the said contract on the part of the defendant.

The contract, properly executed and witnessed, which is attached to and made part of plaintiff’s petition, reads as follows:

“This contract made and entered into this the 26th day of October, 1926, by and between Dr. I. Henry Smith, a resident of Shreveport, Caddo Parish, Louisiana, and herein called first party and C. H. Brandon, a resident of Bossier Parish, Louisi; ana, and herein called second party on the following terms to-wit:
“For the consideration hereinafter mentioned the first party agrees to exchange unto the second party the following described property.
“One certain' plot of ground located on Fairfield Avenue in South Highlands, Louisiana, being One Hundred (100) Feet by Two Hundred and Seventy-six (276) Feet, the only plot owned by first party on Fair-field Avenue; also 51.37 acres of land located in Hidalgo County near Weslaco, Texas, Farm Tract #■— - Block #180, together with Fourteen Thousand ($14000.00) Dollars cash.
“In consideration for said conveyance second party agrees to pay or exchange to first party the following described property to-wit:
“To be delivered free from all incumbrance a certain block of houses owned by J. P. Towery located on Caperton Street, Shreveport, Louisiana and being the houses J. P. Towery is in contract with, C. H. Brandon.
“First party agrees to pay taxes on his above described property for the year 1926. Second party agrees to pay taxes on his said negro property.
“Each party agrees to furnish an abstract of title showing titles good and mer-) chantable to their respective places.
“This contract is to be closed as soon as titles have been examined by each party’s attorney and found good. Each agrees to have titles in shape by November 1, 1926.
“First party agrees to reimburse second party with an unearned insurance on property located on Caperton Street.
“We both herein agree to deposit with I., A. Hill Realty Company our checks for ,$500.00. This being a forfeit check in
event either should fail to comply with contract herein mentioned.
“Thus done and signed this 26th day of October, 1926.”

The exception of no cause of action is founded on the rule of law that one who is seeking damages for the violation of a contract must allege and prove that he has • faithfully discharged all of the obligations resting upon him, by virtue of said contract, before he can recover.

The counsel for the plaintiff finds no fault with this, well-recognized principle of law, nor does he contend that the plaintiff has alleged facts which show a compliance with his contract. But he takes the position that as facts are alleged in the petition which show an active, rather than a passive, violation of the agreement on the part of the defendant, the plaintiff is absolved from the necessity of alleging compliance.

The notice that payment had been stopped on defendant’s check, and that the defendant would not comply with the contract, is alleged to have been delivered to the I. A. Hill Realty Company, the common agent of the parties, on October 29, 1926. This allegation clearly charges defendant with an active breach of the contract, and. the legal effect of said breach was ■ to relieve the plaintiff of the necessity of formally putting the defendant in default. But it does not follow that because the defendant had breached the agreement, and was in default, that the plaintiff was relieved from the necessity of alleging that he had complied with the obligations iynposed upon him which should have been performed before he received notice of repudiation by the defendant, or of alleging facts which would show his ability to perform at the time of receiving the said notice. The information that the defendant" would not comply with his contract was. not communicated to the plaintiff, according to the allegations of the petition, until November 1st. Under the terms of the .contract it was the duty of- the plaintiff on that date to have his “title in shape.” That is, as explained by another paragraph of the contract, it was the plaintiff’s obligation on that date, November 1, 1926, to furnish to the defendant an abstract of fitle showing a good and merchantable title to the property which he was to convey.

We do not think that it was incumbent on plaintiff to perform any obligation on his - part, under the contract, after notice . of the actual breach by the defendant; but as the obligation to furnish an abstract of title showing a good and merchantable title matured the same day he received information of defendant’s breach of the agreement, clearly, in order to state a cause of action, the plaintiff should have alleged that he had such abstract prepared; that it was in his possession on November 1, 1926; that said abstract disclosed a good and .merchantable title to the property he had contracted to convey; and that he was ready and willing to convey said title to defendant on that date. It is only by alleging such facts that the plaintiff could have placed himself in a position to recover damages; that is, by alleging that prior to defendant’s breach of the agreemeiit, he had performed, and that at the time of said breach by the defendant he was able, ready, and willing to continue to perform.

Certainly, refusal to comply with the terms of a contract, or its repudiation by one party, cannot be held equivalent to performance, or a legal excuse for non-performance by the other party of obligations which matured prior to such refusal to comply, or repudiation.

“To recover damages the plaintiff must begin by showing that he has complied with the terms of the contract.” Silverman, v. Caddo Gas & Oil Co., 127 La. 928, 54 So. 289, 290; Southern Tie Co. v. G. W. Signor Tie Co., 164 La. 1066, 115 So. 270, 271; Murphy v. Southern Mineral & Land Improvement Co., 130 La. 914, 58 So. 766; Blodgett Const. Co. v. Board of Com’rs, 153 La. 623, 632, 96 So. 281; Van Denburgh v. Higginbotham, 168 La. 461, 122 So. 581.

We are of the opinion that the exception was properly sustained. It is therefore ordered that the judgment appealed from be affirmed, with costs.


text:
    No. 3051
    Second Circuit (Second Division)
    POLLOCK v. RIGGS
    (April 9, 1931. Opinion and Decree.)
    W. M. Pollock, of Mansfield, attorney for plaintiff, appellee.
    Craig, Bolin & Magee, of Mansfield, attorneys for .defendant, appellant.
   STEPHENS, J.

This is an action to establish the boundary between certain lands of the plaintiff and defendant alleged to be contiguous; to recover damages alleged to have been suffered by the plaintiff because of the destruction of a fence by the defendant; and for the value of the use and occupancy by- the defendant of some twenty acres of land alleged to be -owned by the plaintiff.

The plaintiff avers that, several years before the institution of this suit, the defendant, acting in bad faith, caused a fence to be erected, which was not erected on the boundary line between the contiguous properties of plaintiff and defendant, but which encroached upon and inclosed land of the plaintiff to the extent of twenty acres; and that the defendant unlawfully possessed and cultivated said twenty acres from the year 1923 to the year 1926, both inclusive, for which use and occupancy, in bad faith, plaintiff alleges- he is entitled to recover the sum of $400.

The plaintiff . further alleges that he erected a fence on the property in question at .an expense of $100, and that said fence was destroyed by the defendant; and that he is entitled to a judgment for said amount.

The defendant answered that he was the owner of the twenty acres inclosed by his fence, and that there .was no boundary to be established between the - plaintiff’s and defendant’s lands, as the said lands were not contiguous.

The district judge rendered judgment es-’ tablishing the boundary in accordance with the contentions of the plaintiff; and for the sum of $75 for damages against the defendant for the destruction of plaintiff’s fence; and further judgment non-suiting plaintiff’s claim for use and occupancy, or rents and revenues.

The defendant appealed, and the plaintiff answered the appeal, and prays for an amendment of the judgment of the district court by allowing plaintiff and appellee to recover the rents and revenues sued for, and that the judgment as thus amended be affirmed.

It will be noted that the sole defense urged to the action of boundary is that the defendant is the owner of the twenty acres of land inclosed by his alleged encroaching fence. In support of his contention the defendant has filed in evidence certain documents. The defendant relied on these identical documents to establish title in himself to adjacent lands of the same character, in the case of Elmo P. Lee v. J. Hearsey Riggs, 13 La. App. 34. This court held in that case that the defendant had no title to the land in dispute, but that, at the time of the purchase of the said land by defendant from H. T. Prudhomme and others, the title was in the state of Louisiana, and that the defendant had knowledge of the defects of his title.

The boundary as suggested by the survey, and established by the judgment of the district court is clearly correct.

We have examined the evidence bearing on the question of the destruction of plaintiff’s fence by the defendant. The judgment, we think, is justified, and the amount of the award, which is $75, while conservative, closely approximates the damage sustained.

The counsel for the defendant suggests that the district judge did not allow plaintiff’s claim for rents and revenues because he found that the defendant’s use and occupancy of the property was in good faith. We do not know why the claim was not allowed, but the reason suggested by the counsel is negatived by the fact that the claim was non-suited and not rejected.

During the years 1918, 1919, 1920, 1921, and 1922 the twenty acres in controversy were owned, possessed, and cultivated by one Jake Williams, with the full knowledge and acquiescence therein of the defendant. On May 7, 1923, the plaintiff acquired the property from Jake Williams at sheriff’s sale. It is for the period immediately following that sale, and until and including the year 1926, that plaintiff sues to recover rents and revenues from the defendant for the use and occupancy in bad faith of the twenty acres.

That $5 per acre is a fair rental value for the land, and- that it was occupied and cultivated by the defendant during , the years 1924, 1925, and 1926 is clearly established. It is not shown, however, with legal certainty, that the defendant took possession of the twenty-acre tract in 1923, which was the year the plaintiff acquired the title from Jake Williams.

The record strongly suggests, if it does not establish, that the defendant was a possessor in bad faith, but that question need not be determined from this record alone. As stated above, it was held as a fact in the case of Elmo P. Lee v. J. Hearsey Riggs that at the time of the defendant’s abortive o attempt to acquire title from H. T. Prudhomme and others, of the “Dried Lake Lands” which includes the land here claimed, he had knowledge that the title to said lands was in the state of Louisiana. The defendant was therefore a possessor in bad faith. McDade v. Bossier Levee Board, 109 La. 626, 33 So. 628; Lawrence v. Young, 144 La. 1, 80 So. 18; Lee v. Riggs, 13 La. App. 34.

It is ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against the defendant in the sum of $300 for rents and revenues for the years 1924, 1925, and 1926, and, further, that the judgment appealed from, as thus amended, be affirmed, with costs.


text:
    No. 3095
    Second Circuit (Second Division)
    WILLIS v. DECK ET AL.
    (April 9, 1931. Opinion and Decree.)
    Lee & Lindsey, of Minden, attorneys for plaintiff, appellant.
    J. D. Snell, of Shreveport, attorney for defendants, appellees.
   CULPEPPER, J.

This is. an action by P. C. Willis against Lee Deck and F. E. Deck.

An inspection of the record discloses that this appeal is from an unsigned final judgment rejecting the demands of plaintiff. The only showing in the record that a judgment was rendered is an extract from the minutes of the court of date February 5, 1927, which reads as follows:

“For reasons orally assigned, the demands of the plaintiff are rejected, and the suit is ordered dismissed.”

It was from that judgment plaintiff prayed for and was granted an order of appeal. The certificate of the clerk attached to the transcript recites that the transcript contains all the proceedings had in the case. No final judgment, however, shows to have been signed and filed.

It is well settled that no appeal lies from an unsigned final judgment. Hanchey v. St. L. I. M. & S. Ry. Co., 135 La. 354, 65 So. 487; Parks v. Burnside, 171 La. -, 132 So. 220.

In the above-cited cases, as in this case, the judgment was rendered orally, and an appeal granted and perfected from the judgment. In passing upon the motions to dismiss the appeals, motions having been filed in those cases to dismiss the appeals, the court said:

“This court is without appellate jurisdiction of a case until a final judgment is signed in the court below.”

No motion has been filed in this court to dismiss the appeal. In fact, defendants have made no appearance in this court, neither by counsel to argue the case nor b'y any brief filed.

However, as stated by the court in the Hanchey case, “this court will, of its own accord, take notice of the fact that it is without appellate jurisdiction, and must dismiss the appeal.” Executors of Bird v. Bird, 23 La. Ann. 262; Labatt v. Durruty, 20 La. Ann. 583.

For the reasons assigned, the appeal is dismissed, at appellant’s cost.


text:
    No. 3102
    Second Circuit (Second Division)
    HILLMAN v. WETHERBEE
    (April 9, 1931. Opinion and Decree.)
    J. Fair Hardin, of Shreveport, attorney for plaintiff, appellant.
    J. B. Files, of Shreveport, attorney for defendant, appellee.
   CULPEPPER, J.

This is a suit for compensation under the Louisiana Workmen’s Compensation Act (Act No. 20 of 1914, as amended). From a judgment rejecting plaintiff's demands, plaintiff has appealed.

Plaintiff, at the time of his alleged injury on the night of July 12, 1926, was in the employment of defendant, engaged in ’ drilling a well for defendant in the Tullos oil field, in La Salle parish. While so engaged, and in the course of his employment, a tong chain which he was using in the drilling operations broke, and a piece of the broken metal flew out and struck the left eye lens of plaintiff’s eyeglasses which he was wearing at the time, resulting in shattering the glass. A number of small particles of glass were thrown into the left eye. One .piece of glass became stuck in the cornea of the eye, just outside the pupillary area, but did not penetrate into the watery fluid. Other pieces of the glass lodged in between the eyelid and the ball of the eye. One piece became imbedded in the outside of the eyelid.

. Plaintiff left his work and went immediately to Dr. Barbour, at Selma, La., arriving there about an hour after the accident.

Dr. Barbour testified that when plaintiff came to him his left eye was closed and bloodshot; that there were about a dozen small shattered pieces of glass located in between the eyeball and the lid. One piece was found sticking in the white part, of the ball of the eye, but had not penetrated into the watery fluid. The lower lid of the eye showed to have a small laceration on the outer skin. Dr. Barbour states he removed the pieces of glass, bathed the eye with antiseptic solution, and placed a bandage over it. He says plaintiff came back to his office for treatment each day thereafter for two days, and did .not come any more.

Plaintiff testified that he returned to his same work immediately after receiving treatment on the night of the injury, and continued to work at the same job until some time during the latter part of that month or the first of August, when he was discharged by Mr. Sailes, the foreman of the work. He states that his eye continued to pain and irritate him until some time during the following February and he went to Dr. Woolworth in Shreveport for treatment. Plaintiff did not have his eye bandaged when he went to Dr. Woolworth. He says Dr. Woolworth operated on his eye, removing a small piece of. glass, which relieved his pain, and that he did not suffer any more pain or irritation after that.

Dr. Woolworth was called as a witness for defendant, and testified that plaintiff first came *to him the latter part of July or the first of August, 1926; that upon an examination he found plaintiff had a small cut on the cornea of the left eye, located on the outside of the pupillary area; that the eye was a little bit red, and that was about all he found, no glass was in the eye. The doctor further testified that plaintiff came back again the following February. On that occasion he says there showed to be a email scar on the cornea as a result of the cut place above mentioned, which had healed up, leaving no inflammation nor apparent irritation. Dr. Woolworth states he also found a small piece of glass imbedded on the outside part of the left ‘eyelid. Being asked if he removed this piece of glass, Dr. Woolworth says:

“No, made an incision, tried to get it out, but decided it would do less harm than to gouge around to find the glass would do him, so I didn’t do any extensive operation, just made an incision and tried to get it, but it was hard to get and just' left it in there.”

Dr. Woolworth states that the only way to detect the piece of glass was to feel it. He says it would not cost more than $25 to remove it, as it would take only á minor operation.

Plaintiff testified that the vision in his left eye was good before the ■ accident occurred, but that it has since been poor. Dr. Woolworth testifies that the injury received by plaintiff could not possibly have caused any defect in vision of that eye. He is positive in his opinion, in that regard, that the injury did not affect the vision.

Plaintiff, as shown above, returned to his work immediately after receiving the first treatment from Dr. Barbour, doing the same kind of work he had been doing, and continued working until August 20th, at which time he was discharged. Since then he has done little work, but his. failure to get work is not shown to have been due to disability resulting from the injuries received. He states that after Dr. Woolworth operated and removed the piece of glass from his eye, he was relieved from any further suffering. It will be noted, however, that Dr. Woolworth did not remove the piece of glass, as plaintiff thought was done; so, there is no more reason why plaintiff’s eye should have pained him before February 17th, than afterward, other than his mere statement to that effect.

Plaintiff performed the same kind and character of work after the accident and injury as before. It cannot be said that his injuries were of such nature as to render him unable to do work of a reasonable character at any time. He was neither totally nor temporarily disabled from doing work of a reasonable character. Neither has plaintiff shown that he suffered any defect in his eye or lowered vision as a result of the accident and injury. Under the law, it is incumbent upon plaintiff to make out his case hy a preponderance of the testimony. This he has failed to do. The testimony also shows that plaintiff did not pay any of the expenses incidental to' the treatment which he received, and is, of course, not entitled to recover for anything' claimed by him on that account.

The judgment of the lower court is affirmed.


author: McGREGOR, J.

text:
    No. 3142
    Second Circuit
    LAWHON v. BOOTH & FLYNN, LTD.
    (April 9, 1931. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    W. M. Phillips, of Shreveport, attorney for defendant, appellant’
   McGREGOR, J.

This is a suit brought by the plaintiff against the defendant for the sum of $432 for the hire of -certain mules belonging to the plaintiff. It is admitted and proved that the mules belonged to the plaintiff, that they worked for the defendant, and that the work done by them amounted to $432, the sum sued for herein. It is also admitted and proved that the mules were in charge of one Homer Aiken, an employee of the plaintiff, that he represented to the defendant through its agents and representatives that the mules were his, and that, when they started to work, they were entered on the defendant’s books as belonging to ¡he said Aiken, and that all of defendant’s. dealings in the beginning with reference to the said mules were with the said Aiken.

One W. B. Wilbourne was the agent and representative of the plaintiff, and, just a few days after Aiken had made the deal in his own name, Wilbourne appeared on the scene and notified the defendant’s agents and representative that Aiken did not own the mules and was not entitled to receive pay for their work. Plaintiff is a planter and owns Willow Bend Plantation in Bossier parish, and also owns a large number of teams. Defendant is. a contractor, and at this time was putting down a pipe line in Bossier and Caddo parishes, and in the course of its business had occasion to hire many teams. From the record it appears that Homer Aiken, mentioned above, seized upon this opportunity to take some of plaintiff’s mules, and secure a contract with the defendant in his own name. As a matter of fact, when he took the mules from the premises of the plaintiff, he did so with the knowledge and consent of plaintiffs manager, W. B. Wilbourne. Wilbourne instructed him to take the mules and to put them to work just as he had done on previous occasions. He was not aware of the fact that, when Aiken took the mules to the site of the pipe line work, he represented himself as. the owner and made the contract in his own name.

Two or three days after Aiken had taken the mules and had gone to work, Wilbourne, the agent and representative of the plaintiff, took occasion to visit the scene of operations in order to see how the work was progressing. On the first trip that he made to the pipe line operations, he found out that Aiken had made the contract in his own name, and that he claimed to be the owner of the mules. He endeavored at once to correct this matter and have the proper agent of the defendant to enter the mules, either in his own name, W. B. Wilbourne, or in the name of Willow Bend Plantation. The testimony introduced by the defendant attempts to refute the testimony of Wilbourne along this line. On possibly two other occasions, Wilbourne made a special trip to the place where defendant was working on the pipe line, and on each occasion brought up the question with reference to the ownership of the mules and with reference to the right of Aiken to receive pay for them. On one occasion, the agent of the defendant agreed with Wilbourne that he would see to it that the check for the work performed by the mules would be held up so that he could secure it either for himself or the rightful owner. This agent testifies that he intended to make this arrangement with defendant’s office in Shreveport, but that the check came out sooner than he had expected, and that he did not have opportunity to keep it from reaching Aiken. There is considerable confusion and conflict in the testimony, but, taking it as a whole, it is evident from the record that defendant’s agents and representatives had enough notice, information, and warning to put them on their guard. Notwithstanding this, they proceeded to pay Aiken in full for the work done by the mules. They should at least have held the matter up until a full investigation could be made. If they had done so, they would have learned that Aiken was practicing a fraud on all of them, and they would have prevented this lawsuit and would also have saved themselves from paying twice for the work of the mules.

As was stated above, the testimony is conflicting, but the trial judge saw and heard all the witnesses and observed their demeanor in the witness chair, and had a better opportunity to discern the truth than we have. There appears no error to us in the conclusion he reached. He gave the defendant credit for $138; $34 of this was shown to have been advanced by the defendant to Aiken before their attention was called to the fact that he was not authorized to receive anything for the mules; $104 of this was allowed for the reason that the defendant showed that Aiken had paid that sum out for feed which is alleged to have been fed to the mules, and which, therefore, if the testimony is true, benefited the plaintiff. Wilbourne, the agent and representative of plaintiff, testifies positively that he bought and paid for all the feed that the mules consumed, and that he hired and paid all the • drivers for all the teams, and that he also paid Aiken the wages that were due him for this time. This being true, it appears to us that the trial judge was extremely liberal. He evidently desired to give the defendant all the relief that the law or equity could possibly justify. Aiken has defrauded both the plaintiff and the defendant. Defendant had an opportunity to save itself after two warnings, and failed to do so. The plaintiff has not appealed or answered the appeal. Judgment of the lower court cannot, therefore, be amended or changed in his favor.

For the reasons assigned, the judgment appealed from is affirmed, the defendant to pay all the costs of both courts.


author: WEBB, J.

text:
    No. 3304
    Second Circuit
    SPECIALTY CANDY CO., INC., v. DAVIS ET AL.
    (April 9, 1931. Opinion and Decree.)
    Wm. H. Cook, of Shreveport, attorney ' for plaintiff, appellant.
    C. B. Prothro, of Shreveport, attorney for defendants, appellees.
   WEBB, J.

In this action plaintiff sought to recover judgment against defendant as the guarantor of an open account due plaintiff by H. Oppenheimer, and plaintiff appealed from a ruling sustaining an exception of no cause of action and a judgment dismissing his suit.

Appellant has not made any appearance here. The written act evidencing the guarantee made the basis of the suit shows that the guarantee related to a specific lot of goods sold to Oppenheimer by plaintiff long prior to the date of the account for which defendant is sought to be held liable as guarantor. The guarantee was not a continuing guarantee and there could not be any recovery under the written instrument (Bloom v. Kern, 30 La. Ann. 1263), and parol evidence could not have been received to prove any promise or guarantee of defendant to pay the debt (article 2278, Civil Code).

The exception was properly sustained and plaintiff’s suit dismissed. The judgment is affirmed.


author: DREW, J.

text:
    No. 3309
    Second Circuit
    WALL v. GRAHAM ET AL.
    (April 9, 1931. Opinion and Decree.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for plaintiff, ap-. pellee.
    Jos. H. . Levy, of Shreveport, attorney ; for defendants, appellants.
   DREW, J.

Plaintiff sued on a promis- ' sory note made to plaintiff by R. D. Graham , and Mrs. R. D. Graham, for the sum of $933. It alleges that defendants are 1 both residents of Caddo parish, Louisiana. Citation addressed to each of them accordingly was issued and personal service had on Mrs. R. D. Graham in Caddo parish, Louisiana, and domiciliary service on R. D. Graham.

Defendants excepted to the jurisdiction ratione materiae and ratione personae, alleging that the domicile of said defendants is in the city of Refugio, in the state of Texas. The plea to the jurisdiction was regularly fixed for trial and trial had thereon, the lower court sustaining the plea as to R. D. Graham and overruling it as to Mrs. R. D. Graham. Whereupon she filed an answer admitting her signature to the note. A rule to take judgment on the petition and answer was filed, fixed and tried, and resulted in the rule being made absolute and judgment rendered in favor of plaintiff and against Mrs. R. D. Graham, as prayed for, reserving all rights to plaintiff as against R. D. Graham. From this judgment Mrs. R. D. Graham has appealed.

Although the defendant urged other defenses in the lower court, in this court she has abandoned all defenses except her plea' to the jurisdiction. Appellant in brief says:

“Mrs. Graham made quite an elaborate defense in the lower Court, as shown by her brief filed in the record, but she now relies solely on her plea to the jurisdiction in this Court and abandons all other defenses.”

There is no doubt about Mrs. R. D. Graham’s legal domicile being in the state of Texas, although she was in Caddo parish, Louisiana, about nine months out of each year teaching school. She was in Caddo parish, Louisiana, at the time she was cited and served' in this suit.

Subdivision 5. of article 165 of the Code of Practice reads as1 follows:

“When the defendants are foreigners or have no known place of residence in the state, they may be cited wherever they are found.”

This principle of law has been applied in the following eases: Amiss v. Bank, 9 Rob. 348; Perkins & Billiu v. Morgan, 27 La. Ann. 229; Stewart v. Litchenberg, 148 La. 195, 86 So. 734.

Mrs. Graham was therefore subject to the jurisdiction of the court of Caddo parish, Louisiana, and the plea to the jurisdiction was properly overruled.

Counsel for defendant argues that the form of citation was defective, and that Mrs. Graham, a non-resident, temporarily sojourning within the parish of Caddo, could not be brought into court on a petition alleging that she was a resident of Caddo parish, Louisiana, but that the petition and citation should have recited that she was a non-resident temporarily sojourning in Caddo parish, Louisiana. While we think little of the point raised, we are convinced that the question of improper citation should have been raised by an exception to the citation, and in this case no exception of that kind has ever been filed. To the contrary, a plea to the jurisdiction was filed and tried, and then an answer to the petition filed by defendant.

Defendant in answer admitted signing and making the note to plaintiff, and as all other defenses, except the plea to the jurisdiction, have been abandoned, the judgment of the lower court overruling the plea to the jurisdiction and awarding judgment to plaintiff and against Mrs. R. D. Graham, as prayed for, is correct.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.


text:
    No. 3148
    Second Circuit (Second Division)
    BRYAN & BRYAN v. SHADOW
    (April 9, 1931. Opinion and Decree.)
    Coleman Lindsey, of Minden, attorney for plaintiff, appellant.
    Mclnnis & Campbell, of Minden, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff sued to recover of defendant the sum of $214.50, as an alleged balance due on account for services rendered and expenses incurred in connection with certain advertising matter which plaintiff alleges defendant had ordered performed. From a judgment rejecting plaintiff’s demands, plaintiff has appealed.

Plaintiff’s business consisted in preparing catalogues, pamphlets, etc., and conducting advertising campaigns for its clients, for which a charge was made for services and expenses in connection therewith. Its office was located in Shreveport, Louisiana.

Defendant was owner and proprietor 'of the Dixie Nursery Company, located at Dubberly, in Webster parish, Louisiana. On or about the first of September, 1926, Mr. Pore, agent for plaintiff, called upon defendant and received an order from him to prepare and have published in the Texas Farm & Ranch, and Holland’s Magazine, ads for defendant’s nursery; also to furnish defendant with a number of pamphlets or catalogues containing price lists, etc., of defendant’s nursery stock. It will be noted that the order was a verbal one. Mr. Pore returned to plaintiff’s office with a memorandum which plaintiff claimed to be what the verbal order called for. It was nothing more than just a notation in pencil indicating the months of September, October, November and December. Defendant’s name does not appear on the memorandum.

Plaintiff thereupon prepared and had inserted in each of the periodicals named the ads defendant ordered; also had the catalogues made .for defendant. On September 30th plaintiff mailed defendant a bill amounting to $120.67 for services rendered and expenses incurred. This bill was paid by defendant, by check, October 29th. On October 30th another bill, for $28 was mailed defendant, and he paid it November 26th.

On December 31st plaintiff mailed a third bill, for $158.50, covering balance due for November and expenses for December and January. Defendant refused to pay this bill, and wrote plaintiff a letter on January 6th advising that plaintiff had made a mistake and saying he did not owe plaintiff anything; that he gave Mr. Pore, the agent, an order for only one month’s advertising, as a trial order only, and that Mr. Pore told him the whole would not cost exceeding $70; that he had already paid more than that amount and would not pay any more.

Plaintiff made no reply to this letter, but sent defendant another bill on February 2, 1927, totaling $214.50, covering the former bill and additional expenses for January and February. Payment was refused and suit followed.

Mr. M. L. Bryan, a member of plaintiff firm, testified that he understood that the services were to run throughout the winter season, not for one month only. He admits, however, that his firm sometimes accepts trial orders for a short time only. He also admits that he knew nothing of the actual agreement between his salesman and defendant, any more than just what the salesman told him. The salesman, Mr. Pore, did not appear to testify. The only testimony offered by plaintiff was the testimony of Mr. Bryan and the letters and bills, etc., had in connection with the matter.

Defendant testified that he gave Mr. Pore an order for only one month’s service; that he gave it as a trial order only, and that Mr. Pore assured him that the whole cost, including everything, would not exceed seventy or eighty dollars. He says Mr. Pore called back to see him several times, later and urged him to extend the service for more than one month, but was refused by defendant. A Miss Klobe, defendant’s sister-in-law, testified that she was present when the order was given, and when Pore made these several calls; that she heard ail the conversations had between defendant and Mr. Pore. She corroborates defendant throughout regarding the agreement and conversations.

Defendant says he paid more than he agreed to pay, but says he did so because he did not wish to make any “kick” at the time, but that when the next bill came, he. wrote the January 6th letter refusing to make any further payments, and informed plaintiff the exact agreement he had entered into with the salesman.

The case involves purely questions of fact. They were passed on .by the lower court, after hearing all the testimony. That court was in much better position to determine the credibility of the witnesses than is this court. The judge of the lower court evidently did not think plaintiff submitted sufficient proof to make out a case by a preponderance of the evidence, as the law requires. In this we believe he was correct. The* judgment appealed from is therefore affirmed.


text:
    No. 3258
    Second Circuit
    MELLER v. UNION INDEMNITY CO.
    (April 9, 1931. Opinion and Decree.)

      (No Syllabus)
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

This suit is a sequel to the suit of .G. B. Woods v. A. Meller and Union Indemnity Company, No. 2924 on. the docket of this court, .reported in 6 La. App., page 809.

G. B. Woods, .an employee of A. Meller, was injured while' working in the state of Texas. He brought suit under the Workmen’s Compensation Laws of Louisiana against his employer, A. Meller, and the Union Indemnity Company and recovered judgment against both in solido. Woods executed the said judgment against A. Meller, the plaintiff herein, and he was forced to pay the judgment amounting to $290.60. • A. Meller then instituted this suit against the Union Indemnity Company, his insurer, for the amount he was forced to pay Woods.

Union Indemnity Company answered the suit, resisting the demand on the ground that its only liability to plaintiff is fixed in the policy of insurance which limited liability of defendant-to plaintiff to operations in the state of Texas.

The lower court rendered judgment in favor of plaintiff, as prayed for, and defendant has appealed to this court.

In the case of G. B. Woods v. A. Meller and Union Indemnity Company, referred to above, of which this case is a sequel, the defendant herein raised the same defense and this court rejected it and rendered judgment against it and A. Meller in solido, holding that the policy of insurance covered the injury of Woods received by him while at work in the state of Texas. We see no reason for disturbing the finding of this court in that case, and for the reasons assigned therein, the judgment of the lower court herein should be affirmed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


text:
    No. 3280
    Second Circuit
    PAGE v. PITTS ET AL.
    (April 9, 1931. Opinion and Decree.)
    J. G. Gibbs, of Shreveport, attorney for plaintiff, appellant.
    F. L. Hargrove, of Shreveport, attorney for defendants, appellees.
   McGREGOR, J.

This is a suit to set aside and to annul a tax sale of an undivided one-half interest in the W% of SW^ of NE!/4 of Section 18, Township 21 North, Range 15 West, situated in Caddo parish, Louisiana. The South Sulphur Drilling and Operating Company was from July 14, 1919, to July 7, 1924, the undisputed and recognized owner of the said interest which was at all times up to and including the year 1923 duly and properly assessed to it. The state and parish taxes for the year 1923 were not paid and at the regular tax sale conducted by the sheriff of Caddo parish in 1924 the property was sold for the payment of the delinquent taxes due the state, parish, etc., with interest and costs, as provided by law, and A. C. Pitts became the purchaser. On December 27, 1926, more than two years after the tax sale, the South Sulphur Drilling and Operating Company, in spite of said sale, undertook to sell this same property interest to Dr. James L. Page, plaintiff herein^ so that on and after December 27, 1926, there were two record owners of said interest—A. C. Pitts and Dr. James L. Page, A. C. Pitts subsequently died and the defendants herein are his widow and heirs. After the plaintiff had secured his deed he filed this suit to set aside and to annul the tax sale' whereby A. C. Pitts, the deceased husband and father of the defendants, had acquired title to the property on July 7, 1924. The nullity of the said tax sale is asserted upon the alleged ground of want of notice to the tax debt- or, South Sulphur Drilling & Operating Company, as required by law.

In the court below the case was tried and decided upon an agreed statement of facts. According to this stipulation the address of the South Sulphur Drilling & Operating Company was 409 Marine Bank Building, New Orleans, Louisiana, in care of E. P. Bray. It is admitted that the sheriff and ex officio tax collector of Caddo parish, Louisiana, within the time and in the manner provided by law, sent the usual notice to the tax debtor by registered mail to this address. It is further admitted that the said E. P. Brady, if present, would testify that this notice was not received by him and that so far as he knows it was not received by anyone connected in any way with the said South Sulphur Drilling & Operating Company. The judgment of the lower court was in favor of the defendants and therefore rejected the demands of thé plaintiff. From this judgment the plaintiff prosecuted this appeal.

It. is evident that the sole issue in the case is as to whether proper and legal notice of the tax sale was given by the sheriff and tax collector. It is admitted that a legal notice was properly sent by registered mail to the right address. The failure of E. P. Brady or of “anyone connected in any way with the said South Sulphur Drilling & Operating Company,” so far as ,he, the said E. P: Brady, knows, to réceive the said notice, after it was ¡properly issued and sent by registered mail to the correct address furnished by the tax debtor, cannot affect the validity of the tax sale. Hoyle v. Southern Athletic Club, 48 La. Ann. 879, 19 So. 937; Baum v. Smith, 127 La. 1089, 54 So. 399; Adsit v. Park, 144 La. 934, 81 So. 430; Avery v. Mayo, 161 La. 699, 109 So. 393.

Counsel for the plaintiff and appellant has cited us to the following cases in support of his contention that the tax sale attacked is null for want of notice: Recker et al. v. Dupuy et al., 161 La. 392, 108 So. 782; Kivlen v. Horvath, 163 La. 901, 113 So. 140; Ryals v. Todd, 165 La. 952, 116 So. 395; Mattern v. Parqutt, 10 La. App. 769, 123 So. 189. In the case of Recker et al. v. Dupuy et al., at the time that the usual notices of the approaching sale of property for delinquent taxes were sent out, the plaintiffs, Recker, et al., were the owners of the ¡property and were, therefore, under the law the real tax debtors and were the ones entitled to receive the usual notices from the sheriff and ex officio tax collector. In spite of this fact the sheriff sent the notice to J. W. Murrell, who was the owner of the property at the time it was assessed, hut who had sold it before the said tax sale and before the said notice was sent by registered mail to him. The court held the sale null for want of notice to Recker et al., the real tax debtors. It was not a question as to whether a notice which had been legally issued and sent to the right address of the real tax debtor had been actually received, as is the case here, but it was a question as to whether the usual notice was issued and mailed to the right party, and it was found by the court that no notice had been mailed at all to the tax debtor who was the owner of the property at the time that the usual notices were mailed out. This identical situation was also presented in Kivlen v. Horvath, and in Ryals v. Todd. Therefore, these three cases do not support the contention of the plaintiff. In the case of Mattern v. Parqutt, it was shown that no legal notice of the tax sale was ever sent to the proper address of the tax debtor. In fact, it was shown that the notice was sent to the wrong address and that the tax debtor never received the same until after the tax sale. It is also shown that this failure to send the notice to the correct ad-' dress .of the- tax debtor was the fault of the sheriff and tax collector and in no way the fault of the tax debtor. Therefore, this case does not in any way support the contention of the plaintiff and appellant.

Granting that Mr. E. P. Brady never received the registered notice and that, so far as he knows, no one with authority received it, the fact remains that it was properly sent to the correct address furnished by the tax - debtor and that the sheriff and ex officio tax collector complied fully with the letter of the law. If the notice had not been delivered to someone at that address it would have been returned to the sheriff and that fact would have been easily proved. We do not think that the tax sale should be set aside “simply because the tax debtor is able or willing to testify that as a matter of fact he never received the delinquent notice,” when it is admitted that the notice was properly sent to the correct address and when there is no evidence of its having been returned to the sheriff and ex officio tax collector.

For the reasons assigned the judgment appealed from is affirmed, the ¡plaintiff to pay the costs of both courts.


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    No. 3284
    Second Circuit
    MANSFIELD MOTOR CO., INC., v. MORAN ET AL.
    (April 9, 1931. Opinion and Decree.)

      (No SyTHabus)

      Pegues & Pegues, of Mansfield, attorneys for plaintiff, appellee.
    Edwin Fraser, of Bastrop, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued T. J. Moran and E. B. Dyess on a promissory note made by both defendants for tbe balance due on said note, which was given as the purchase price of an automobile, and also sued for interest and attorney’s fees as stipulated on the face of the note. -

T. J. Moran made no appearance and judgment by default was entered against him. Dyess answered the suit by a general denial of the allegations of plaintiff’s petition, and alleged that he was merely an accommodation endorser for the said T. J. Moran and that at the time Moran defaulted in his payments of the note, the automobile was worth enough to satisfy the claim of plaintiff, and that he requested plaintiff to seize and sell the car, but that plaintiff refused so to do, and its failure to proceed at that time against Moran was a release of appearer from all responsibility on the note.

Judgment was rendered in the lower court in favor of plaintiff, as prayed for, and from that judgment defendant Dyess prosecutes this appeal.

Appellant has made no appearance in this court either by argument or brief, and we know not of what he complains. A careful reading of the record discloses no error in the judgment below, and we therefore assume that the appeal has been abandoned.

It is therefore ordered, adjudged and decreed that .the judgment of the lower court be affirmed, with all costs.


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    No. 3338
    Second Circuit
    STEWART BROS. COTTON CO., INC., v. DUFILHO
    (April 9, 1931. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.

      Albert P. Garland, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued for the sum of $1,781.10, with legal interest thereon from judicial demand, alleging that in the months of August and September, 1926, it bought from defendant 500 bales of cotton at prices #fixed at the time of purchase, defendant to be responsible in respect to the grade and staple of the said cotton according to its outturn in the city of New Orleans, Louisiana, indemnifying plaintiff against any difference in this respect between the said cotton as billed out by defendant, and plaintiff indemnifying and making good to defendant any excess due the said defendant in this respect, over the amount at which the said cotton was billed.

That in the months of September and October, 1926, the 500 bales of cotton were shipped by defendant to plaintiff and invoiced at the aggregate sum of $41,557.98, which sum was paid by plaintiff; but the New Orleans outturn of said cotton in respect to the grade and staple, amounted to the sum of $39,911.68, leaving a difference due plaintiff by the defendant of $1,646.30. It further alleged that under the direction of defendant, plaintiff incurred an . expense of $134.80 in having 337 bales of cotton classed by the New Orleans Cotton Exchange, which amount was due plaintiff by the defendant. It prays for judgment accordingly.

Defendant admits the contract, as alleged by plaintiff, but alleges that the staple of such cotton was to be based on types furnished him by plaintiff. He admits the shipment of 500 bales of cotton invoiced at the sum of $41,557.98, and affirmatively alleges that the purported New Orleans outturn on said cotton was not based on staple types of plaintiff, according to the agreement between him and plaintiff, but on government and New Orleans Cotton Exchange staple types, which are different from plaintiff’s types. That his invoices were based on staple types furnished him by plaintiff as a basis for the classification of said cotton under the contract entered into between them, and that the classification of the grade of the cotton made by him was correct, and that made for plaintiff was incorrect. He further denies that he is responsible for the charges made by the New Orleans Cotton Exchange for the classifying of said cotton and prays that plaintiff’s demands be rejected.

There was judgment in the lower court in favor of plaintiff for the amount of $1,646.30, the alleged difference between the sum paid defendant and the outturn of the cotton in New Orleans, and rejecting plaintiff's demands for the $134.80, paid by it to the New Orleans Cotton Exchange for classification of the said cotton. From this judgment defendant in open court asked for orders of suspensive appeal to this court, and same were granted upon defendant’s furnishing bond in accordance with the law and made returnable on May 21, 1928.

The judgment of the lower court was signed on April 18, 1928, and on the same day bond in the sum of $2500 was executed, with Mrs. Miriam Conway Dufilho as surety, and filed with the clerk of the district court. The case was returned into this court on May 21, 1928. On May 9, 1928, plaintiff served notice on defendant that it objected to the suspensive appeal bond filed by him for the reason that the amount of the bond was insufficient and the surety thereon pecuniarily insufficient and without capacity to bind herself as surety thereon for the obligation of her husband. That plaintiff would test the sufficiency of said bond as to tbe amount, and the solvency, sufficiency and capacity of said surety. Defendant failed to furnish another bond, and on May 22, 1928, one day after the- appeal had been returned into this court, plaintiff and appellee filed a motion to dismiss the appeal for the reasons set out in the notice served upon defendant, alleging service of said notice, and attaching copy of same, together with a certificate of the clerk of the district court that no additional or supplemental bond had been filed by defendant. The motion to dismiss was ordered by this court to be placed on the preference docket, but was never tried until the hearing herein on the merits.

On May 26, 1928, plaintiff filed in the lower court a rule to show cause why execution should not issue on the judgment, alleging the facts above set forth, attacked the bond, and prayed for the issuance of a fieri facias, and that the appeal' bond be declared invalid. The rule was made returnable on May 30th, at 2 p. m., at which time there was no appearance by defendant or his counsel, and the rule was duly tried and made absolute. The appeal bond was declared to be invalid and ineffective, and the clerk was ordered to issue a fieri facias on the judgment.

After execution issued, the defendant paid the judgment in full, and on June 16, 1928, had the judgment canceled on the mortgage records of Caddo parish, Louisiana.

On February 1, 1929, defendant petitioned for a devolutive appeal from the original judgment, which order was granted, fixing the appeal bond at $50, and making the return day February 25, 1929. The bond was filed on February 5, 1929, and on February 23, 1929, the defendant presented a motion to this court setting out that he had taken a devolutive appeal and was filing a supplemental transcript showing all proceedings had in the lower court since the record was lodged in this court under his suspensive appeal, and prayed for orders allowing him to prosecute his devolutive appeal on the original and supplemental transcript. The motion and supplemental transcript* were ordered filed under the number and as part of the original record.

On February 28, 1931, plaintiff, appellee, filed a motion to dismiss the devolutive appeal, setting out all the facts above stated, and alleging that defendant’s acts constituted an abandonment of the suspensive appeal, and that he no longer had a right to a devolutive appeal.

The motion to dismiss presents an interesting question and one on which the jurisprudence of this state is apparently greatly in conflict. However, since our finding on the merits is that the judgment of the lower court is correct, we prefer to base our decision on the merits alone.

Plaintiff and defendant are in full accord as to wbat the contract was in most respects—that is, that in the months of August and September, 1926, ' plaintiff bought from defendant 500 bales of cotton, at prices fixed at the time of purchase, the defendant to be responsible in respect to the grade and staple of said cotton, according to its outturn in the city of New Orleans, Louisiana, defendant indemnifying plaintiff against any difference in this respect between the said cotton as-billed out by defendant, and plaintiff indemnifying and making good to defendant any excess due said defendant in this respect over the amount at which the said cotton was billed. They are in full accord as ■ to the amount received by defendant for the cotton, tq-wit: $41,557.98, and there is no dispute as to the amount of the out-turn of the cotton at New Orleans, to-wit: $39,911.68. The one thing of which defendant complains is that the outturn in New Orleans was based upon government and New Orleans Cotton Exchange staple types and not upon staple types, of plaintiff. That he sold upon private staple types of plaintiff furnished him by plaintiff and not on government or New Orleans Cotton Exchange types. That the cotton he sold plaintiff was properly classed according to types furnished him by plaintiff; and that plaintiff has failed to prove its claim because it has failed to show that the outturn was based upon the types furnished him, defendant, by plaintiff as a basis for classification.

There is no dispute over the weights given the cotton in New Orleans, neither does there seem to be any discord over seven bales of cotton that were rejected in New Orleans and afterwards sold by plaintiff for defendant’s account at a much lower price and without complaint from defendant.

Defendant complains greatly of the ruling of the trial judge on the admissibility of certain documents offered by plaintiff and others offered by defendant. Without going into a detailed discussion of the lower court’s ruling, we find his ruling on the admissibility and non-admissibility of evidence correct. Plaintiff in proper form by deposition took the testimony of witnesses in New Orleans, and each and every document offered by it was verified by these witnesses and its correctness sworn to. On the other hand, defendant attempted to file in evidence certain documents that were not verified by any witnesses, and the testimony of the persons making the documents or having knowP edge of their correctness was not offered in open court, or any attempt made to take their testimony by deposition, and no opportunity given plaintiff to cross-examine the makers of the documents or the person having knowledge of the'ir correctness.

The record shows that the cotton was classed in New Orleans by the following classers:

By New Orleans Joint Southern Arbitration Board ............................................ 343
By U. S. Government Classers................ 133
By Plaintiff’s Classers ............................ 24
Total .......................................... 500

It is not contended by defendant that this classification is not correct, but he contends that he sold to be classed by plaintiff’s special types furnished him by plaintiff, which are different from the classification made by the above classers and that the classification given the cotton by the above classers is worthless as evidence in this case, because they did not use the types by which he sold in classing the cotton.

This is not a suit to enforce th'e decision of the arbitration board, but the classification made by it, together with the evidence of the classers, is used to show the true classification of the cotton and to show that the grade and staple, as fixed by these classers, was equally if not more favorable to defendant than the classification based on the types furnished him by plaintiff. Defendant does not complain of the grade given the cotton, and only complains of the staple. He contends the types were furnished as to staple. Plaintiff contends they were furnished only to give him ‘‘our idea of the length.” It is undisputed that in classing the cotton that grade as well as the staple would have to be considered.

The types furnished defendant by plaintiff were described as follows:

STEV 7/8ths
IBHE Full 7/8ths
FLAX 15/16ths
ANDA Inch
PHIL 1 l/32nd

Two of plaintiff’s employees, both experienced cotton classers, verified the types above given and testified that the same types as sent defendant were sent to the Joint Southern Arbitration Board to be classed and identify the classification certificate thereon. One of the committee of three of the said board making the classification of these types verifies the certificate. This certificate of classification of plaintiff’s types shows:

STEV 7/8
IBHE 15/16
FLAX Full 15/16
ANDA Inch
PHIL 1 1/32

The Joint Southern Arbitration Board’s classification of the types, defendant contends he sold by, agrees with plaintiff’s classification as to three types, namely; STEV, PHIL and ANDA, and as to the other two types, IBHE and FLAX, it is in favor of the defendant. IBHE was classed as to staple by plaintiff as 7/8ths and by the board as 15/16ths. FLAX was classed by plaintiff as to staple at 15/16ths, and by the board as 15/16th Full. It is plain to see that the higher classification placed on the two types by the board is in defendant’s favor.

Defendant used two local classers who testified to the staple of plaintiff's types, showing that three of his types were of a slightly lower classification than given them by plaintiff, but we think the preponderance of evidence is in favor of the classification given by plaintiff and the board of arbitration and that plaintiff was benefited instead of injured by the classification given his cotton in New Orleans by the arbitration board and the United States government, and regardless of whether he sold by plaintiff’s special types or not, his cotton was classed by a standard that gives his cotton a classification in part as high and partly higher than he would have received if classed by the types furnished by plaintiff.

Defendant contends that when he sold the cotton, it was in wet weather, and that cotton will pull longer in wet weather than in dry; and that when it was classed the weather was dry. We would think that the type used would likewise pull longer in wet weather than in dry and that the shrinkage of one would offset the other, and it is not reasonable to think that experienced cotton men would give a standard by which to buy, based on cotton pulled in wet weather, when it is common knowledge that cotton will pull longer in wet weather. Furthermore, the evidence shows that in wet weather allowance is always made for that condition. Furthermore, it is very significant that defendant requested that the arbitration board class his cotton in letters to plaintiff and the board, and now complains of their classification.

The testimony is convincing that plaintiff has m-ade out its case for the difference between the outturn in New Orleans and the amount paid defendant. The cost of classing the cotton, by the board was rejected in the lower court, and plaintiff acquiesced in the judgment by executing same and authorizing the cancellation of the judgment. Furthermore, it has not answered the appeal in this court. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.


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    No. 3488
    Second Circuit
    GALLASPY v. LA. RY. & NAV. CO.
    (February 26, 1931. Opinion and Decree.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued to recover the value of one mule alleged to have been killed by defendant’s train. Defendant denied liability and averred the mule was not worth the value claimed. There was judgment in the lower court for plaintiff in the sum of $125, with five per cent interest thereon from June 19, 1928, the date the mule was killed, until paid. The defendant had no record of the killing and no engineer or fireman on any train at or about the time the mule was killed had any knowledge of the alleged killing. However, the evidence is conclusive by witnesses who saw the mule at the time -it was struck by the train and others who saw it soon afterwards that the mule was killed by defendant’s train.

There is no attempt made by defendant to prove that, the killing was unavoidable or without negligence. Therefore, the liability of defendant for the death of the mule as found by the lower court is correct.

Defendant complains in this court of the value fixed for the mule, and also complains of the judgment of the lower court allowing interest from the date of the accident, instead of from judicial demand. The great preponderance of the testimony is that the mule had a value of $150, and the lower court’s finding of a value of $125, the amount sued for, is correct. We think, however, that the lower court was in error in allowing interest from the date of the. death of the mule and that interest should have been allowed from judicial demand. (Act No. 206 of 1916.) Therefore, the judgment will have to be amended in this respect.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by fixing the interest at the legal rate from judicial demand until paid, instead of from June 19, 1928, and, as amended, the judgment is affirmed. Cost of appeal to be paid by appellee.


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    No. 3209
    Second Circuit
    DERMOTT GROCERY & COMMISSION CO. v. BLACKMAN
    (April 9, 1931. Opinion and Decree.)
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued on open account for $4,835.16, less credits aggregating around $3,000. It alleged that the account consisted of certain goods and merchandise sold to defendant and delivered to J. B. Lee, a tenant of defendant; and in the alternative, if the court should find that the goods were sold to J. B. Lee, that the said defendant had unconditionally bound himself in writing to pay the same. He prays for judgment accordingly.

Defendant in answer admits his responsibility for the account of goods delivered to J. B. Lee up to and including August 7, 1926, alleging that on that date he notified plaintiff in writing not to sell and deliver to J. B. Lee on defendant’s account, unless on written order or telephone message from defendant. He denies the account in part after August 7, 1926, and demands strict proof of same. He alleged that J. B. Lee was a lessee of his,i and that all goods were purchased by Lee and charged to Lee.

By consent, judgment was taken on the petition and answer for the amount of the account up to and including August 7, 1926, leaving before the court the account from August 7, 1926, which amounted to $756.68.

Defendant agreed in writing before the purchases were made to pay for the goods delivered to J. B. Lee, his tenant, when same were delivered on written order or telephone order by defendant. He admits that he authorized delivery to Lee by plaintiff of $265.59 worth of said goods, leaving a difference of which he demanded strict proof. The lower court, after hearing the witnesses testify, rendered judgment for plaintiff in the amount of $660.-91, which was the amount prayed for, less items of interest amounting to $80.89 and $14.88, being the difference between an order for $50 worth of merchandise and $64.88, the amount delivered on said order. Defendant has appealed from this judgment, and prays that the judgment be reduced to the amount admitted by him. Plaintiff has not appealed or answered the appeal.

The uncontradicted testimony is that all items alleged to have been sold and delivered to J. B. Lee were actually delivered to him, and the only question for determination is whether or not the goods were delivered on written or telephone orders from defendant. Plaintiff’s bookkeeper and Mr. Lee both testified that all goods delivered to Lee by plaintiff were either on written order of defendant or orders given over the telephone by him. Defendant denies that he gave more than four orders over the telephone and one written order. He is not certain as to the amount he authorized by these orders, and in all his testimony is very vague and indefinite.

The lower court undoubtedly believed the testimony of plaintiff’s witnesses and considered defendant’s testimony as not a definite denial. It is purely a question of fact, and certainly the preponderance of the testimony is with plaintiff. The testimony of defendant is not sufficient for us to say that the judgment of the lower court is clearly erroneous, and, unless the testimony clearly shows the judgment of the lower court to be erroneous, we will not disturb its findings.

Since the judgment of the lower court was rendered, the defendant has departed this life, and Mrs. R. H. Blackman, widow of deceased, alleging that she has been appointed administratrix of her husband’s succession, has petitioned this court to be made a party to these proceedings as defendant and appellant, and an order to that effect has been rendered.

It- is. therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, and that Mrs. R. H. Blackman, administratrix of the succession of R. H. Blackman, be substituted as defendant; appellant to pay all costs.

McGREGOR, j., recused.