text:
    No. 8969
    Orleans
    C. E. COCKRELL, Appellant, v. CAPITAL CITY AUTO CO., INC., ET AL.
    (October 5, 1925, Opinion and Decree)
    (January 4, 1926, Writ of Certiorari and Review Denied by the Supreme Court)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 1, 79.
    Where misrepresentations fraudulently or erroneously made by the vendor causes the purchaser to buy that which is different from the thing he intended to acquire, he may sue for rescission of sale and recover the price, it being plain under such facts that consent, essential to a contract, is lacking.
    Appeal from the Civil District Court for the Parish of Orleans, División "E”, Hon. Wynne G. Rogers, Judge.

      Plaintiff sues the Capital City Auto Company, Inc., and Louis Becker, in solido, for rescission of contract of sale of an automobile, and, for the return of the purchase price, amounting to $500.00. The trial court rendered judgment as prayed for. against the auto company only and dismissed the suit as to Becker. The appeal involves liability vel non only as to the company, plaintiff not having appealed from the judgment as to Becker.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. D. Danziger, of New Orleans, attorney for plaintiff, appellee.
    Chas. Schneidau, of New Orleans, attorney for defendant, appellant.
   OPINION

BELL, J.

Plaintiff sues the Capital City Auto Company, Inc., and Louis Becker, in solido, for rescission of contract of sale of an automobile, and for the return of the purchase price, amounting to $500.00. The trial court rendered judgment as prayed for against the auto company only and dismissed the suit as to Becker. The appeal involves liability vel non only as to the company, plaintiff not having appealed from the judgment as to Becker.

The petition alleges that plaintiff was induced, through,-, fraud, deceit and misrepresentations of both Becker and the Capital City Auto Company, Inc., to purchase a second hand automobile, represented to plaintiff as a 1919 model; that the auto company, not having the car in its own name, secured Becker, in whose name as owner the car was licensed or registered, to transfer same by- notarial act, to plaintiff for $500.00; that this consideration was paid in full by plaintiff to the auto company; that plaintiff subsequently discovered the car to be a 1918 (not 1919) model, worth' fully $150.00 less in value than a 1919 model; that he at once notiifed both defendants of the discovery and tendered each of them the car and demanded return of his money, all to no avail.

Appellants’ defense is substantially a general denial.

The case has been submitted to this court only on briefs.

We find that the record abundantly establishes the fact that appellant, not Becker, was in truth the vendor of the automobile. The evidence shows that Becker had contracted with the auto company for the purchase of a new car and that the value of his old car (the one here involved) and for which he was given credit on the new car, was $500.00, this amount being paid by plaintiff in two checks, drawn by him to the order of the auto company, and not to Becker. The written agreement of purchase signed by plaintiff on a printed form furnished by the auto company, through its salesman, shows clearly that the auto company negotiated the entire sale, and alone derived the benefit of its ultimate consummation. The preponderance of testimony is also to this effect. The notarial act of sale signed by plaintiff and also by Becker as the ostensible vendor, is likewise signed by the auto company’s sales agent as a witness to the transfer. The car involved in this suit is described in the act of sale as “one used Oldsmobile, 1919 model”. The record before us develops an unbroken chain of evidence, most convincing, that this sales agent, to the knowledge of appellant and with its approval and authority, acted with Becker in consumating the sale of the car to plaintiff. There is no room for doubt that appellant’s agent, however deceived he may have been by Becker, did himself represent to plaintiff and undoubtedly led plaintiff to believe that the car .was of a 1919 model. Plaintiff’s knowledge, to the contrary, was only brought home to him when applying for insurance on the car shortly after its purchase. His intention to buy only a 1919 model, and the agent’s positive representations as to the model, is found in plaintiff’s unrebutted testimony, from which we partly quote, as follows:

“Q. Who said the price was $500.00?
“A. Mr. Swope.
“Q. Who was he?
“A. He was agent for the Capital City Auto Co.
“Q. What did he say as to what model the car was?
“A. He told me it was a 1919, the Oldsmobile.
“Q. Now, did you finally accept the automobile?
“A. Yes, sir, I told him I would take it. He said ‘give me a check for $50.00, as a binder’, which I did. We went into my dining room and he sat down and drew up an agreement, and he said ‘the transaction is through the Capital City Automobile and not Mr. Becker’.”

The insurance policies covering the car and issued in favor of its original owner, have been offered in evidence. They establish beyond dispute that the car was a 1918 model.

The facts of this case clearly vitiate plaintiff’s consent to purchase the car which he was induced to believe, through defendant’s agent, was a 1919 model.

It follows, within the provisions of Art. 1819 R. C. C., that the absence of consent invalidates the contract and entitles plaintiff to a rescission of the sale and return of the purchase price.

A false statement as to age or model of a car, made to induce a sale, and relied upon by the purchaser, is a false statement of a material fact, which furnishes ample ground for rescission. Pitcher vs. Weber, 103 Maine 101, 68 Atl. 593.

We find no error in the judgment of the trial court.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed at defendant’s costs in both courts.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9184
    First Circuit
    N. AND C. PHILIPS v. A. V. LORENZO; KATHERINE TYLER, Intervenor, Appellant
    (October 19, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)
    (December 4, 1925, Writ of Certiorari and Review Denied by Supreme Court)

      (Syllabus by the Court.)

    1, Louisiana Digest—Landlord and Tenant —Par. 102.
    A provisional seizure of the furniture of a sublessee illegally issues after the sublessee has deposited in court the total amount of the rent due and to become due subject to the claims of the original lessor and of the holder of the notes issued for rent by the sublessee.
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    In this suit the plaintiff issued a provisional seizure after defendant had deposited amount due on the rent in another suit on appeal.
    Judgment of provisional seizure reversed as having been illegally issued.
    Prowell and McBride, of New Orleans, attorneys for plaintiff, appellee.
    Chas. Louque, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a sequel to the case of Katherine Tyler vs. Mercantile Agency just decided.

This suit was filed September 19, 1922, two months after the Tyler case.

In this case the plaintiffs allege that they leased the premises 1404 Bordeaux Street to A. Y. Lorenzo for $40 per month and that he had not paid the rent for the four months June, July, August and September; that they have a privilege upon the effects contained in the leased premises; that “it lies in the power of defendant to remove or dispose of the aforesaid property during the pendency of this suit and thereby depriving the petitioners of their lien and privilege”. They prayed for a provisional seizure and for judgment against defendants for $160 and ten per cent attorney’s fees and interest on the notes and for recognition of their privilege upon the effects seized in premises No. 1404 Bordeaux Street.

An order for provisional seizure was signed and issued and the property of Katherine Tyler contained in the leased premises was seized.

Katherine Tyler intervened in this suit in the following proceedings:

“On motion of Charles Louque, attorney for Kate Tyler, and on suggesting to. the Court that your mover was the subtenant of A. V. Lorenzo, who sublet to your mover with the full consent of the plaintiffs; and on further suggesting that your mover paid her rent to the plaintiffs on March 20, 1922, and May 5th; that same was accepted, that she further deposited all the rent due or to become due to the end of her lease in the registry of this Honorable Court by a bill of interpleader under No. 143,194; that the plaintiffs had no right to issue a provisional seizure directed to your mover’s furniture;
“It is ordered by the court that Miss Norma and C. Philips do show cause on the 17th of October 1922, why the writ of provisional seizure herein issued should not be dissolved and this suit consolidated with 143,194 of this court.”

By judgment rendered November 22, 1922, the two suits were consolidated, but on November 28, 1922, “a new trial was granted and the motion for^ consolidation refused”. An appeal from said order was refused Kate Tyler.

The defendant, Lorenzo, made no defense to the suit and judgment was rendered against him for $160 “maintaining the writ of provisional seizure and recognizing plaintiffs’ lien and privilege on the furniture and effects in the premises No. 1404 Bordeaux Street and for costs”.

From this judgment “as regards the provisional seizure”, Kate Tyler took a suspensive appeal.

A motion to dismiss her appeal was made in this court, and was refused by this court.

It is evident that the provisional seizure was improvidently issued in this case. A provisional seizure under Article Code of Practice 287 issues not “when it lies in the power of defendant to remove or dispose” of the effects in the leased premises, but when plaintiff “has good reasons to believe that said lessee will remove the furniture or property on which he has a lien or privilege out of the premises and that he may be thereby deprived of his lien”.

Plaintiff mistook the affidavit required in a case of sequestration under Act 190 of 1912.

In this case it is true, plaintiff had a privilege upon Kate Tyler’s furniture contained in the leased premises, so far as she was indebted to Lorenzo upon the date of the issuance of the writ, September 19, 1922. But on that date she had deposited the whole amount due and become due by her $160, in the registry of the court. The plaintiffs in this suit had been made parties to that proceeding and had answered setting up their superior rights to the money so deposited. It results from that deposit so made by Kate Tyler that she was not indebted to Lorenzo at ¿he date of the seizure of her effects, because she had paid all her indebtedness to him, past and future, by making that deposit.

A deposit made under such circumstances is equivalent to a payment and entinguishes the debt.

In the case of Lambert vs. Ins. Co., 50 La. Ann. 1037, 24 South. 16, where the defendant, the insurance company, had deposited in court the full amount due by it to satisfy the demands of two claimants to the fund, the Supreme Court said:

“We believe it a just principle to announce that an innocent stake holder, without interest in a pending litigation, depositing in court the full amount he owes, or in his hands, and which is the object of dispute between contesting claimants, the rightfulness of whose claims is the object of the litigation should be relieved of further liability and not held for interest and costs subsequently accruing.”

Neither interest nor attorney’s fees are due on a writ for executory process, when it does not appear that a suit was necessary. Abraham & Son vs. New Orleans Brewing Assn., 110 La. 1013, 35 South. 268; Succession of Howell, 121 La. 960, 46 South. 933; Succession of Burke, 107 La. 85, 31 South. 391.

It thus appearing that there was no necessity for the issuance of the provisional seizure to secure plaintiffs’ claim, we must conclude that it was improvidently issued.

It is therefore ordered1 that so much of the judgment herein as maintains the writ of provisional seizure herein as against Katherine Tyler and recognizes plaintiffs’ lien and privilege on her furniture and effects in the premises No. 1404 Bordeaux Street be reversed and set aside, and that the plaintiffs pay the costs of said provisional seizure and of this appeal.


author: REYNOLDS, J.

text:
    No. 2336
    Second Circuit
    ROBERT R. RHYMES v. A. A. ABELL, ET AL.
    (December 1, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Injunction—Par. 42, 50, 54.
    Act 29 of 1924 regarding injunctions contemplates that the rule nisi shall be tried in advance of the merits of the case, but the trial judge under Section 2 of Article VII of the Constitution of 1921 may hear testimony on the merits of the case at the same time that he tries the rule nisi, where plaintiff was not prejudiced thereby.
    2. Louisiana Digest—Appeal—Par. 521.
    Where it is clear that the plaintiff rested his case on what he considered to be an absolute right and therefore failed to offer evidence of all the facts alleged in his petition thereby doing himself an injustice, the case will be dismissed, as of non-suit.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    This is a suit in which plaintiff applied for injunction under Act 29 of 1924 and, under the emergency clause of the act, obtained a temporary restraining order. The case was tried on the rule nisi and on the merits at the same time.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended dismissing plaintiff’s suit as of non-suit.
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    Clyde R. Brown, attorney for defendant, appellee.
    STATEMENT OF THE CASE
    On January 23, 1925, plaintiff applied for an injunction under Act 29 of 1924, and, under the emergency clause of the Act, obtained a temporary restraining order.
    All parties were ordered to show cause on January 29, 1925, why a temporary injunction should not issue. On that day the defendants filed an answer both to the rule and on the merits.
    The minutes of the court for that day read as follows:
    “Jan. 29, 1925. Answer to rule filed.
    Rule heretofore filed herein taken up, tried in part and, for reasons orally assigned by the court, is continued and refixed for Monday, February 9, 1924.
   REYNOLDS, J.

“Feb. 10, 1925. In this case, the court ordered the minute recorded on page 311 of Minute Book H, dated Jan. 29, 1925, corrected and amended so as to read in accordance with the facts, as follows:

“The matter of the rule nisi as to the issuance of a preliminary injunction, after having been taken up for the purpose of trial on the face of the record and having heard the argument of the attorneys the court, in its discretion, concluded to have the case tried upon its merits at this time and so ordered. Plaintiff in the injunction objected to the proceedings upon the merits, contending that the merits could not be heard upon the trial of the rule nisi and further he was unprepared to go into the trial of the case and insisted upon the trial at this time as to whether or not a preliminary injunction should issue. The court took issue with him; however, concluding that he had a right to make further preparation in order to meet the issue of the case upon its merits, fixed the case for trial for February 10, 1925, and extended the preliminary restraining order until the 10th day of February for the reasons assigned in the application and for the further reason that the court thought he was justified in having the case continued. Plaintiff’s counsel continued in his insistence that the preliminary restraining order should be tried and it be ascertained whether or not the court should grant the writ of preliminary injunction and excepted to the ruling of the court ordering the case to trial on its merits and reserved a bill of exceptions to the ruling of the court, which was granted.”

On February 10, 1925, the case was tried on its merits on an agreed statement of facts.

OPINION

From the minutes of the court it appears that the District Judge deemed it advisable that the issues on the merits as well as those on the rule nisi should be tried at the same time and he accordingly so ordered, continuing the restraining' order in force until February 10, 1925, and set the case down for trial on that day both on the rule and on the merits.

Defendants’ counsel insists that the court erred.

We think Act 29 of 1924, clearly contemplates that the rule nisi shall be tried in advance of the merits of the case and that the language in it “or may take proof as in ordinary cases” refers to the taking of proof in support of the issuance or refusal to issue an injunction; but we also think that the trial judge, in the dispatch of the business of his court, has large discretion and, under Sec. 2 of Article VII of the Constitution of 1921, may, in aid of its jurisdiction, issue all needful writs, orders and process.

In our opinion, the order of the court of January 29, 1925, fixing the case for trial both on its .merits and on the rule for February 10, 1925, was within its discretion and was, in fact, equivalent to granting plaintiff a temporary injunction and setting the case down for trial on its merits. Plaintiff was in no way prejudiced thereby, for he was given twelve days thereafter in which to prepare for the trial on the merits, and when the case was called on February 10th he did not object to going to trial on the ground that he had not had sufficient time to prepare for it but, on the contrary, submitted his case on an agreed statement of facts.

Under these conditions we do not think there was any abuse of the discretion of the court in going into the trial of the case on its merits.

The only reason urged by plaintiff against the correctness of the judgment on the merits is that there was no evidence showing that the mortgage of the Central Savings Bank & Trust Company was recorded in Richland parish and hence it was without effect as to plaintiff in that parish.

Plaintiff’s counsel says that the Supreme Court of this state has so held in a case appealed from Ouachita parish. He has not furnished us with a copy of the decision nor referred us to the place where it can he found, and we rather think he is mistaken as to its existence.

Plaintiff bought the automobiles in controversy in Ouachita parish at a time a chattel mortgage resting on them duly recorded in that parish and he could not defeat the force and effect of that mortgage by removing the cars from the parish. If he could, a chattel mortgage would furnish very little security, indeed.

We are convinced that under the agreed statement of facts the judgment of the lower court was correct insofar as it covers the issues covered by the agreed statement of facts; but all the issues set up by the plaintiff in his pleadings are not covered by the agreed statement of facts. The injunction sought was one restraining the sheriff of Richland parish from selling under executory process two automobiles which plaintiff alleged he bought from Cleveland Motor Co. Inc. He further alleged that these automobiles with several others were covered by one mortgage to The Central Savings Bank & Trust Co.; that plaintiff had paid the full price of the automobiles he bought, out of which the bank had been paid $900.00 on its debt; that the bank had agreed to release these automobiles and had subsequently sued out executory process against two of the others included in the mortgage, whereupon Eason and Averatt, who had bought these two others from the Cleveland Motor Co. and only partly paid for same, paid the balance of the bank’s debt and, instead of cancelling the debt had conspired with the bank and one A. J. Criswell for the bank to assign its debt to said Criswell who thereupon had himself substituted as plaintiff in the executory proceedings instead of the bank and then proceededt to have a writ of seizure and sale issued to Richland parish and seized plaintiff’s automobiles in an effort to collect the entire balance due on the bank’s debt out of plaintiff’s automobiles.

We are of the opinion that plaintiff, relying upon what he considered an absolute right to have the rule nisi passed on separately and in advance of the merits of the case failed to indlude in the agreed statement of facts or offer in evidence proof of all the facts alleged in the pleadings.

Had this failure been due to oversight, we would have been inclined to remand the case for the submission of additional evidence; but as plaintiff rested his case on what he considered to be an absolute right and therefore failed to offer evidence of all facts alleged in his petition, we think his case should be dismissed as of non-suit.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to dismiss plaintiff’s demand as in case of non-suit. Plaintiff to pay all costs of the lower court; defendant to pay the costs of the Court of Appeal.


text:
    No. 2040
    Second Circuit
    JEFFERSON COTTON OIL COMPANY v. ARCHIBALD GIN COMPANY, ET AL.
    (December 10, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Obligations—Par. 79, 80.
    The word “prompt” in a contract construed with the balance of the contract and the physical conditions existing at the time the contract was made; held contemplated delivery within four or five days from the date of the contract.
    (See Civil Code, Art. 2057. Editor’s note.)

      2. Louisiana Digest—Obligations—Par. 156, 178.
    Putting in default in view of Articles 1911, 1912 and 1933 of the Civil Code is not necessary after unreasonable delay, in the face of an advancing market; such damages under the circumstances being speculative and not contemplated when the contract was made.
    3. Louisiana Digest—Damages—Par. 71.
    In a contract requiring “prompt” delivery the plaintiff’s right to recover damages is limited to the difference in the price stipulated in the contract and the market price a short time thereafter.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    This is a suit in which the plaintiff demanded damages for breach of contract?
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellant.
    G-. W. Smith, of Rayville, attorney for defendant, appellee.
   REYNOLDS, J.

Plaintiff sues defendant, a commercial partnership composed of A. B. Chapman, D. F. Chapman, L. B. Archibald, P. Archibald and A. Brooks, for $760.80 and legal interest thereon from judicial demand for breach of contract to deliver thirty-four tons and two hundred and ninety pounds of cotton seed sold by defendant to plaintiff.

On September 27, 1922, plaintiff and defendant entered into a contract whereby defendant sold to plaintiff “for shipment prompt” at $35.00 per ton f.o.b. cars Archibald, Louisiana, one hundred tons or four cars of cotton seed.

Plaintiff alleges that defendant delivered to it sixty-five tons and seven hundred and ten pounds of cotton seed but failed to deliver thirty-four tons and two hundred and ninety pounds of cotton seed and that it was compelled to buy that quantity of seed in the open market and pay therefor the market price which was then $55.00 per ton and that in consequence defendant owes it the difference of $20.00 per ton on the thirty-four tons and two hundred and ninety pounds, or $685.80.

Plaintiff further alleges that it has been compelled to employ an attorney at a cost of $75.00 to recover the loss defendant caused it by its breach of contract.

Defendant denied liability and alleged that plaintiff had agreed to provide it with railroad cars in which to load and ship .the seed and that it failed to do so and owing to a general car shortage it was unable to obtain cars on which to load and ship the seed.

Defendant further alleged that the market price of cotton seed at the time it failed to make delivery was $35.00 per ton and that plaintiff could have obtained the cotton seed in open market at the same price defendant had contracted to deliver it for and therefore plaintiff had suffered no loss.

Defendant denied liability for the attorney’s ' fees.

Defendant further alleged that the contract provided that a variation of ten per cent either way in performance of the contract should be deemed compliance and that being obliged to deliver over ninety tons under the contract in no event could it be held liable for more than the difference between that quantify and the quantity actually delivered or 24.29 tons.

On these issues the case was tried and there was judgment dismissing plaintiff’s suit and rejecting its demands and it has appealed. (

OPINION

The first question to be decided is, within what time did defendant contract to deliver the cotton seed? .

This must be determined from the contract itself and the physical conditions that existed at the time the contract was entered into.

The word “prompt” in the contract was written into a printed form and must be given full force in construing the contract, for it was doubtless written in for the purpose of showing the time within which the cotton seed was to be delivered to plaintiff.

Webster’s Dictionary defines “prompt” as “ready and quick to act”; “responding instantly”; “immediate”; “done or rendered readily or immediately”.

In “Words and Phrases” we find that “prompt” is synonymous with “at once" and in its ordinary accepted meaning, “at the same time”, “immediately”, “without delay”, “at one and the same time”, “simultaneously”.

In connection with the above definition of the word “prompt” the physical condition that existed at defendant’s gin on the date of the contract are relevant.

A. B. Chapman, who signed the contract for the defendant, testified, page 25:

“Q. At the time you signed this contract with Mr. Lyman, what, if anything, did he promise you relative to furnishing cars?
“A. Mr. Lyman had been there two or three dozen times trying to buy seed. I told him it would not be any use in selling them to him. We had sold the Monroe people and had not been able to get cars, and he said: ‘Well we have got four cars and we will ship them out to you; we have got them there at the mill and will unload them and ship them out to you. You can look for them tomorrow or the next day’.
“Q. Was that the inducement that he held out to you to get you to sign this contract?
“A. Yes, sir; and the next time he come why he told us to write to the Interstate Commerce Commission to try to get cars; said he was not able to get the cars and had tried everywhere.”

Page 27:

“Q. If Mr. Lyman had not made the promise to you to furnish you the cars, would you or would you not have gone into this contract?
“A. No, sir: I was hauling seed every day putting them in different houses. I had some at my house in a house; had some over at Rushings’; had his shop full.
“Q. About how many tons did you have on hand at the time you signed this contract?
“A. Well let me see—about a hundred and forty or fifty tons. I got about twenty tons burned.
“Q. The man, Mr. Lyman, was to furnish you these cars for the prompt shipment of the cotton seed?
“A. He told me he had the cars there and they would unload them and- they would ship them out and they would get there the next few days. He stayed there, all the evening and he was at my house while I was settling with the hands.”

From the above definition of the word “prompt” and the above quoted evidence showing the physical conditions that existed at the time the contract was made, we are of the opinion that the contract itself clearly contemplated that the cotton seed was to be delivered within four or five days from the date of the contract and that plaintiff can only hold defendant for the difference between the price of cotton seed on September 27, 1922, and a reasonably short time thereafter.

Civil Code, Art. 2057.

In Hafner Mfg. Co. vs. Lieber, etc. Co., 127 La. 348, 53 South. 646, the Supreme Court said:

“A seller of lumber for delivery within a specified time, has, under Civil Code Art. 2056, until the last day of the period to fulfill the contract, and where he does not make delivery on the last day the buyer may on the following day buy in the open market at the place of delivery, and charge the seller with the cost less what would have been the cost under the contract.
“The measure of the- buyer’s damages for the seller’s breach to deliver the goods bought according to the contract is the difference between the contract price and the market price.”

In Bonner vs. Simon Rice Milling Co., 111 La. 1094, the Supreme Court said:

“It has uniformly been held by this court that damages for the inexeciition of a contract of this kind, in the absence of bad faith, are those which were in the contemplation of the parties when the contract was made, and that such damages represent the difference between the contract price of the thing sold and the market value at the time and place at which it was to have been delivered.”

In Garrison vs. Sherrill Hardwood Lumber Co., 156 La. 147, 100 South. 253, the Supreme Court said:

• “Damages recoverable for breach of contract to deliver railroad ties sold where both parties are in default are those contemplated when the contract is made and is the difference between the contract price and the market value at the time and place of delivery.”

While putting in default is a condition precedent to the recovery of damages where the violation of the contract is passive, in view of Articles 1911, 1912 and 1933 of the Civil Code a creditor cannot be permitted to demand performance of a contract after unreasonable delay and in the face of- an advancing market; such damages being speculative and not contemplated when the contract was made.

Under the above authorities it is clear that plaintiff’s right to recover damages is limited to the difference in the price of' cotton seed on September 27, 1922, and a short time thereafter.

Mr. Chapman testified that Mr. Lyman told him:

“You can look for them (meaning the empty .cars in which to ship the cotton seed) tomorrow or next day.”

The District Judge evidently believed the testimony of Mr. Chapman and we so also, and for that reason hold that plaintiff’s right of recovery must be limited to the time in contemplation between the parties at the date of the contract, and the time contemplated by them, we think, was from three to seven days, .and during that time the price of cotton seed actually declined:

Plaintiff’s witness, Mr. E. B. Lyman, testified, page 49, as to the price of cotton seed:

“The price of September 27th, our price was $35.00 and from that time on up to October 1st it did not vary from that price, that in the first week in October my limits were reduced $2.00 per ton, which lasted three or four days, and then we had a gradual rise in market from day to day until November 10th* * * .”

He further testified, on page 19:

“Q. Well, you are on the witness stand and got your little book?
“A. That is a secret judge, but I will give it to you.
“October 4th three cars from Collinson at $33.00; same date one car from Howard Mickey, $33.00.”

Prom this testimony of defendant’s witness it is seen that the price of cotton seed on October 4th, seven days after defendant sold the cotton seed to plaintiff, the price of cotton seed had actually declined $2.00 per ton, and plaintiff was in position to protect and we think actually did protect itself fully against any loss by reason of defendant’s breach of contract.

Under the evidence in the case and the authorities above cited, we are convinced that the judgment appealed from is correct and it is accordingly affirmed.


author: ODOM, J.

text:
    No. 2422
    Second Circuit
    JOHN E. HARRELL v. JOSEPH D. KILLGORE
    (February 8, 1926, Opinion and Decree)

      (Syllabus hy the Editor.)

    1. Louisiana Digest—Animals—Par. 1.
    A father is warranted in killing a dog that was making a vicious attack upon his children, and cannót be held liable for the value of the dog.
    (Civil Code Arts. 2315 and 2321. Editor’s note.)
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. L. L. Hooe, Judge.
    This is a suit to recover the value of a pedigreed bird dog killed by the defendant. Defendant filed a reconventional demand. There was judgment rejecting the demands of both the plaintiff and the defendant.
    The plaintiff and defendant both appealed.
    Judgment affirmed.
    K. Hundley, of Alexandria, attorney for plaintiff, appellant.
    R. C. Bauer, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit to recover the sum of $100.00, the value of a pedigreed and registered bird dog, which, he alleges, the defendant killed on or about October 7, 1923, without justification or excuse.

He alleges that the dog was well worth the sum of $100.00.

Defendant, in answer, admitted that he killed plaintiff’s dog, but alleged that he did so on his own premises and within his enclosed pasture, and that he did so for the reason that plaintiff’s dog was, at the time he shot and killed him, making a vicious attack upon his two young children, one seven and the other eleven years of age.

He denies liability, and, alleging that his two children were very much frightened and injured by the attack made upon them by the dog, he reconvened for the sum of $125.00.

There was judgment in the District Court rejecting plaintiff’s demand at his cost, and also rejecting the demand of the defendant in reconvention.

From this judgment both the plaintiff and the defendant appealed.

OPINION

The defendant did not perfect his appeal and therefore his demand in reconvention cannot be considered in this court.

The testimony shows that plaintiff was the owner of a pedigreed and registered bird dog which was assessed on the assessment rolls .of Rapides parish at the sum of $100.00 and that the dog was well worth that amount.

It seems that the dog was about a year old and had been owned by plaintiff from the time it was six weeks old. It had been raised on plaintiff’s premises as a pet, and, according to plaintiff’s testimony and that of other witnesses introduced by him, the dog was not of a vicious nature but, on the contrary, was inclined to be friendly, and had never made an attack upon any one.

Plaintiff testified that his five-year-old child had constantly played with the dog and that the dog had never at any time attacked or shown any disposition to attack his child or any other child.

About the time the dog was killed plaintiff had put it in charge of another party to be kept while plaintiff was away on his vacation. Mr. Barton, in whose care the dog was left, testified that he kept this dog and one other belonging to the plaintiff in a kennel but that on this occasion the two dogs escaped and that one of them returned but that the other did not. He does not know what became of the dog which did not return, except through hearsay.

Defendant, as a witness in his own behalf, admitted that he killed the dog with a shotgun, and his account of the affair is substantially as follows: He has an enclosed pasture adjacent to his house in which there is a swimming pool which was frequented by his two small children. On' this occasion he was gathering tomatoes in a patch or garden near his residence, when he heard his children screaming in such a manner as to convince him that something very much out of the ordinary ' had happened to them, and that their screams so alarmed him that he left his tomato patch and ran through his house, procuring a double-barrel shotgun as he went through, and started in the direction from which the children were screaming,' and that as he got out into the open he saw the children running towards him, still screaming; that he hurried to meet them, and as he go near them he saw plaintiff’s dog pursuing them. He testified that the dog was barking and presented the appearance of being mad. He testified that when he met his children the dog was within twelve or fifteen feet of them and that he was convinced, from the way the dog was acting, that it was mad (explaining that he thought the dog was afflicted with rabies). He said that the attack was such that he thought he could not afford to take any chances and therefore shot and killed it.

His 17-year-old son testified that when he heard the children screaming he ran to théir rescue and got to them about the time his father did and that the dog was making what he considered a very vicious attack upon the children and that he called to his father to shoot the dog.

He testified that at the time his father shot the dog he was some five or six steps from it!

One of the children who were attacked by the dog is a little girl about twelve years old, who testified that she and her brother were at the swimming pool near the fence and that when she first saw the dog it was on the outside of the fence running towards them barking and growling and that she and her brother became frightened and ran away from the swimming pool towards the house. She did not see the dog any more until about the time it was shot, but she says the dog was killed pursuing them and that she and her brother were so frightened that she did not look around to see the dog.

The testimony of the defendant and his two children is not contradicted. It seems that there was no one else in the pasture or near enough to see what happened.

As soon as defendant killed the dog he removed from its neck a collar on which there was a tag with the plaintiff’s name thereon and returned to his residence. About, that time some real estate men arrived at his residence for the purpose of leasing his land for oil and gas. He testified that he told these parties about his having killed the dog and showed them the tag and asked them if they knew the party whose name was on the tag and that he asked them to make inquiry as to who owned the dog. He said that his purpose in doing so was to ascertain if the owner of the dog had other dogs which he might confine in case they had been bitten by the dog which he had killed; he at the time being of the opinion that the dog was afflicted with rabies.

He further testified, and his testimony on that point is not disputed, that there was considerable talk in the community about “mad dogs”.

From this testimony we are perfectly satisfied that the defendant killed the dog thinking it was necessary in order to protect his children, and that he was in perfect good faith in doing so.

The dog at the time, according to the testimony, was making a vicious attack upon his children, and we think he was warranted in killing it. He and his son both testify that no attempt was made by either of them to prevent the dog from biting the children after they reached the scene; but the defendant explains that by saying that he thought the dog was mad and that he could not afford to take any chances on his children being bitten or on being bitten him self.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed at plaintiff’s cost.


text:
    No. 2398
    Second Circuit
    JAMES H. McCAIN v. GERTRUDE NENNETT, ET AL.
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Appeal—Par. 528, 532.
    After an appeal has been perfected, the lower court loses jurisdiction of the case and cannot hear testimony on the question whether there has been acquiescence in the judgment.
    2. Louisiana Digest—Appeal—Par. 528, 532.
    Under the Code of Practice Article 567 when the issue of execution or acquiescence vel non is raised in the appellate court, the case will be remanded for further evidence of execution or acquiescence.
    Appeal from Thirteen Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is an action to establish a boundary between adjacent proprietors. There was judgment for plaintiff fixing the boundary.
    Defendants appealed. Plaintiff claimed acquiescence in the judgment of the lower court by the defendant. Case remanded to the District Court to try the question of acquiescence in the judgment appealed from.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    T. F. Hunter, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

This is an action to establish boundary between adjacent proprietors. The case was tried in the District Court of Rapides parish on November 1, 1924, evidence adduced and the case submitted to and taken under advisement by the court.

On January 20, 1925, judgment was rendered in favor of the plaintiff, and on January 27, 1925, judgment was read and signed. The judgment ordered the boundary fixed and established as per a plat attached to and made a part thereof, and ordered the defendants to pay all costs of the proceeding.

No further action was taken in the District Court until April 3, 1925, when counsel for the defendants asked for a devolutive appeal to this court. Counsel for plaintiff being present, it seems, in open court, objected to the granting of the appeal, on the ground that the judgment had been acquiesced in by all of the defendants and that therefore they were not entitled to an appeal as a matter of law.

The order of appeal was granted by the court over counsel’s objection and he re-' served the right to file a formal motion to set aside the order of appeal and took a bill of exceptions to the ruling of the court granting same.

On April 11, 1925, plaintiff obtained a rule on defendants to show cause why the order of the court entered on April 3, 1925, granting them an appeal should not be set aside.

This rule was tried on April 24, 1925, and on April 27, 1925, the rule was dismissed and leave granted to plaintiff to apply for a rehearing, and on May 1, 1925, a rehearing was granted.

As already stated, the devolutive appeal was asked for and granted on April 3, 1925, and on the same day the defendants executed a bond for the appeal in the amount fixed by the court.

The appeal was made returnable in this court on May 4, 1925, and on that date the transcript was lodged here.

The judge of the District Court refused to hear evidence on the question of acquiescence in the judgment on the ground that he had lost jurisdiction of the case, the appeal having been perfected.

T'he plaintiff having failed to get relief in the District Court has filed in this court a motion to dismiss the • appeal on the ground that the defendants had, prior to the granting of the appeal, acquiesced in the. judgment, for which reason they were not entitled to an appeal, and he has attached to his motion in this court the sworn affidavit of the plaintiff setting forth that pursuant to the judgment of the District Court rendered on January 20, 1925, the surveyor appointed by the court had established the boundary between the properties and that immediately the defendants removed their improvements from the plaintiff’s property and rebuilt their fences on the new line established by the ofder of the court and fixed by the surveyor, and that they voluntarily paid the costs of the court and verbally stated that they were doing so in order to comply with the judgment of the court.

Code of Practice, Article 567, provides that a party against whom a judgment has been rendered cannot appeal

“* * sj if such judgment has been confessed by him or if he has acquiesced in the same by executing it voluntarily.”

If, as stated in the plaintiff’s motion made in this court, which is supported by affidavit, defendants voluntarily acquiesced in the judgment prior to the date on which the appeal was asked for and granted, they w'ere clearly not entitled to the appeal.

But the question whether they did so acquire is one of fact and this court can receive no original evidence on that point.

When the issue of execution or acquiescence vel non is raised in the appellate court, the case will be remanded.

(See numerous' cases cited under Article 567 of the Code of Practice.)

In this case the motion to dismiss is founded upon the legal right of the defendants to the appeal.

After an appeal has been granted and perfected, the lower court loses jurisdiction of the case and cannot hear testimony on the question whether there has been acquiescence in the judgment.

• “In such a case the appellate court being vested with jurisdiction of the appeal and the court a qua being divested of jurisdiction over the case, the motion to dismiss on the ground of acquiescence in the judgment must be made in the appellate court and if the facts of acquiescence do not appear in the record the case will be remanded with instructions to the judge a qua to take evidence on and try the question of acquiescence in the judgment appealed from.”

James vs. Fellowes & Co., 23 Da. Ann. 37.

State, ex rel. St. Martin vs. Police Jury, 28 La. Ann. 272.

Evans & Taylor vs. Succession of Ethride, 29 La. Ann. 576.

These cases are directly in point. Others might be cited, but it is not necessary to ao so.

For the reasons assigned, it is therefore ordered, adjudged and decreed that this case be remanded to the District Court and that said court try the question whether the appellants voluntarily acquiesced in the judgment appealed from, and that its findings and judgment upon that issue be sent up to this court in due course.

Costs to await the final decree.


text:
    No. 2459
    Second Circuit
    SUCCESSION OF JAMES McLAUGHLIN, DECEASED; SUCCESSION OF MISS C. A. McLAUGHLIN, DECEASED; ON OPPOSITIONS OF MRS. ETHEL McLAUGHLIN AND CANNON McLAUGHLIN Consodidated for the purposes of the introduction of evidence
    (December 10, 1925, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on matters of fact being clearly correct is affirmed.
    Appealed from Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    This suit is a consolidation of two oppositions to the final accounts of the administrators in two successions. The District Judge rejected Mrs. Ethel McLaughlin’s claim against the succession of Miss C. A. McLaughlin and gave her judgment against the succession of James McLaughlin for $84.00 and rejected Cannon McLaughlin’s demands in toto against both successions.
    The opponents, Mrs. Ethel McLaughlin and Cannon McLaughlin, appealed.
    Judgment affirmed.
    T. S. Pearce, of Ruston, attorney for opponents, appellants.
    Dhu Thompson, of Ruston, attorney for the successions.
    STATEMENT OF THE CASE
    The succession of James McLaughlin and Miss C. A. McLaughlin were duly opened in Lincoln parish and a final account duly filed in each.
    Mrs. Ethel McLaughlin and Cannon McLaughlin both filed oppositions in each of the successions to the homologation of the final accounts.
    Mrs. Ethel McLaughlin demanded. to be put on the final account in each succession as a creditor in the sum of $134.00 with legal interest from judicial demand, and Cannon McLaughlin demanded to be put on the final account in each succession as a creditor, in the James McLaughlin succession in the sum of $134.00, with legal interest from judicial demand, and in the Miss C. A. McLaughlin succession in the sum of $65.00, with like interest.
    The claim of each opponent is on a quantum meruit for personal services alleged to have been rendered by them to the decedents.
    The successions denied liability.
    There was judgment in the James McLaughlin succession in favor of Mrs. Ethel McLaughlin for $84.00 and rejecting the demand of Cannon McLaughlin; and in the Miss C. A. McLaughlin succession there was judgment dismissing the oppositions of both opponents.
    Cannon McLaughlin has appealed from the judgments in both successions rejecting his demands, and Mrs. Ethel McLaughlin has appealed from the judgment in the succession of Mrs. C. A. McLaughlin rejecting her demand.
    This leaves for consideration only the opposition of Cannon McLaughlin in the succession of James McLaughlin and the oppositions^ of both Mrs. Ethel McLaughlin and Cannon McLaughlin in the succession of Miss C. A. McLaughlin.
   REYNOLDS, J.

OPINION

The evidence as to the physical condition of Miss C. A. McLaughlin for a period of time prior to her death on January 7, 1925, which was prior to the death of her brother, James McLaughlin, who died on-January 22, 1925, is conflicting. All the witnesses concur in the opinion, that she was remarkably active for a person of her age. But opponents’ witnesses claim that her sight was very poor for some time before her death.

M. C. McLaughlin, the administrator of the successions, testified:

“Q. Mr. McLaughlin, what was Miss Celia McLaughlin’s condition during the year 1924?
“A. Well, she was able to be up and to do a part or most of her work until Monday before she died Wednesday.
“Q. You say she was taken ill suddenly or how? What was the matter with her?
‘‘A. It was my understanding she was taken sick suddenly Monday morning. I was over there Sunday evening before she was taken sick.
“Q. How was she Sunday when yoti were there?
“A. She was up and about and doing as well as usual.
“Q. When was that?
“A. That was on Sunday evening before she died Wednesday, the 7th.”

The District Judge who tried the case and heard the witnesses and observed their manner of testifying decided that the succession of Miss C. A. McLaughlin was not due either opponent any amount; that the succession of James McLaughlin owed Mrs. Ethel McLaughlin $84.00 but did not owe Cannon McLaughlin anything.

The evidence shows that Cannon McLaughlin did for both his aunt, Miss C. A. McLaughlin, and uncle, James McLaughlin, many kind and friendly acts of service, such as getting in wood, bringing water, carrying the meals that his Mother prepared to them, and so forth, but it is not contended that there was any understanding between him and his aunt or uncle that he was to receive compensation for such services.

His seryices to hi's old and feeble aunt and uncle were very beautiful and such as •to commend him to the other heirs as entitling him to an extra portion of the property left in each succession; but the law provides for the disposition of succession property according to fixed rules and leaves no discretion to the court to reward favorite heirs or those heirs who have been specially kind to the deceased.

The District Judge rejected Mrs. Ethel McLaughlin’s claim against the succession of Miss C. A. McLaughlin and gave her judgment against the succession of James McLaughlin for $84.00, and rejected Cannon McLaughlin’s demand in tofo against both successions.

From all the evidence in the case we cannot say that his judgment was manifestly wrong and it is accordingly affirmed.


author: CARVER, J.

text:
    No. 2483
    Second Circuit
    ALFRED J. SCHLOSS, DOING BUSINESS AS THE SCHLOSS TAILORING CO. v. T. C. HODGE, DOING BUSINESS AS BELL TAILORING COMPANY
    (December 1, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Pleading—Par. 59.
    Where the plaintiff does not prove that he has authority to stand in judgment an exception filed by the defendant to plaintiff’s capacity or authority to stand in judgment should be sustained but the suit should be dismissed as of non-suit.
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    This is a suit on a check. Defendant filed an exception no cause of action which was overruled. There was judgment for plaintiff and defendant appealed.
    Judgment reversed and one of non-suit entered.
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    Davenport and Walker, of attorneys for defendant, appellee.
   CARVER, J.

Plaintiff, Alfred J. Schloss, alleging that he is doing business as the “Schloss Tailoring Company” brings this suit against T. C. Rhodes, alleged to be doing business as the “Bell Tailoring' Company”.

Annexed to the petition is a check drawn in favor of “Schloss Tailoring Co.” signed “Bell Tailor, By T. C. Rhodes”.

The plaintiff claims that the suit is on the check. Defendant claims that it. is for goods which the plaintiff alleges in article II of his petition were sold at various times to defendant.

On the case being called for trial, plaintiff introduced the check and protest thereof, the citation and return, and rested his case.

Thereupon the defendant rested his.

The District Judge rendered judgment rejecting the demand of plaintiff, who prosecutes this appeal.

Before answering the suit, defendant filed an exception as follows:

“That petitioner does not disclose his capacity or authority to bring this suit or stand in judgment therein, in that it does not set forth that petitioner is the sole owner of the said Schloss Tailoring Company, or the names of any other parties interested in the said Schloss Tailoring Company.”

We think the lower court properly overruled this exception. The petition is in the name of Alfred J. Schloss and starts out by saying that he is doing business as the “Schloss Tailoring Company”. He alleges in article II “That your petitioner sold and delivered” goods to the defendant. In article III he alleges “Your petitioner alleges that T. C. Rhodes * ® * sent to your petitioner a check” etc. Fairly construed this means, we think, that “Schloss Tailpring Company” is a mere trade name used by Alfred J. Schloss and carries the inference that no one is interested in the business except himself.

The defense on the merits was that the check was given in error; that it was not for the proper amount; that the goods bought by defendant were shipped under consignment to be paid for six months after date of shipment; that the six months had not elapsed; and that the purchase price would not be due before August 6, 1925. The suit was filed May 16, 1925.

If the answer had contained an admission that Schloss was doing business as “Schloss Tailoring Company”, we think plaintiff would be entitled to judgment. We interpret the petition not as a suit for the value of the goods for which the check was given but as a suit on the check itself. The petition states in article III that the check was given in payment of the goods. We think this interpretation w'as also put on the petition by defendant’s answer itself; the answer alleging, in article V, “* * * that your respondent is not indebted unto the said Schloss Tailoring Company for the amount of the check as sued for”. Considered as a suit on the check, which imports a valuable consideration, we think the filing of the check in evidence would be sufficient proof of the debt if the check were made payable to plaintiff himself. Being made payable, though, to Schloss Tailoring Company and there being no admission by defendant of plaintiff’s allegation that that was a mere trade name for Schloss, the. .case stands thus: Schloss sues on a check payable to Schloss Tailoring Company, and there is no proof by plaintiff or admission by defendant that Schloss and Schloss Tailoring Company are one and the same person in law.

While the allegation in the petition that plaintiff was doing business under the name of Schloss Tailoring Company was sufficient to justify the court in overruling the exception of no cause of action, it did not entitle plaintiff to judgment on a check payable to Schloss Tailoring Company without proof of this allegation.

We think, though, that the court erred in giving final judgment against plaintiff. The judgment should have been one of non-suit.

While the plaintiff did not prove his case neither did defendant prove his defense. After defendant had rested his case, plaintiff offered a witness to prove that defendant was in court at the beginning of the trial but left before plaintiff rested. The judge refused this. If plaintiff had offered to prove that Schloss Tailoring Company was a mere trade name for Alfred J. Schloss we wojild remand the case for a new trial. But only having offered to prove that defendant was in court during the trial and this if proved not curing the effect in the proof, wte think the proper judgment one of non-suit.

It is decreed that the judgment of the lower court be amended by rejecting plaintiff’s demand, not finally but only as in case of non-suit, and that as thus amended it be affirmed.


text:
    No. 2423
    Second Circuit
    JESSIE NIX v. J. L. LANCASTER AND PEARL WIGHT AS RECEIVERS OF THE TEXAS & PACIFIC RAILWAY COMPANY
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor')

    1. Louisiana Digest—Prescription — Par. 200; Action—Par. 60.
    Article 3519 of the Civil Code, as amended by Act 107 of 1898, provides that whenever the plaintiff, having made his demand, shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.
    2. Louisiana Digest—Attorneys—Par. 22, 25.
    Act 124 of 1906 does not prohibit a plaintiff from prosecuting his suit by employing another attorney where the attorney whom he employed does not prosecute his suit.
    3.Louisiana Digest—Prescription — Par. 200; Constitutional Law—Par. 139.
    Article 3519 of the Civil Code, as amended by Act 107 of 1898, merely provides a period of prescription for suits which have been abandoned and does not deprive the plaintiff in a suit of his property without due process of law.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    This is a suit in which nearly eight years after it was filed the plaintiff ruled defendants to show cause why the case should not be revived. An exception and plea of prescription was filed by the defendants, which was sustained and suit dismissed.
    Plaintiff appealed.
    Judgment affirmed.
    Earl E. Kidd and George M. Wallace, of Winnfield, attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendants, appellees.
   ODOM, J.

This suit was filed in the District Court at Alexandria o'n April 2, 1917. The minutes of the court show that a preliminary default was entered on April 27 following and that the case was set for trial May 17; that the case was reset for July 17, and that on July 2 the assignment for July 17 was stricken out on motion of counsel, and that on July 13 counsel for plaintiff filed an amended and supplemental petition; that on October 2 the case was set for November 6, and on October 18 an answer to the supplemental petition was filed, and that on November 2 the assignment of November 16 was stricken out and the case reset for December 3.

All of the above minute entries were made in the year 1917.

On December 17, 1918, the case was, by order of the court, placed on the “dead” docket.

While the extract from the minutes of the court filed in evidence does not show it, counsel for plaintiff, in brief, say, and we accept their statement as true, that, on March 21, 1925, plaintiff ruled defendants to show cause why the case should not be revived and placed on the ordinary docket.

In answer to said rule the defendant filed an exception and plea of prescription, setting out that further prosecution of the suit is barred by the prescription of five years under the provisions of Article 3519 of the Civil Code, as amended by Act 107 of 1898.

The suit was brought by Robert F. Liebler, attorney representing the plaintiff, under a contract which provides that in case it should be necessary to bring suit the attorney should receive as compensation for his services rendered and to be rendered fifty per cent of whatever amount might be recovered; neither party having the right to settle the suit by compromise or otherwise without the consent of the other.

Robert F. Liebler, the attorney, died on November 21, 1919, leaving a widow and three minor children.

In answer to defendant’s plea of prescription and motion to dismiss the suit, plaintiff, who in the meantime had employed other counsel to prosecute the suit, and J. N. Shea, tutor of the mino» children of Robert F. Liebler, moved to dismiss the plea of prescription on the grounds, first, that the suit was brought under the provisions of Act 124 of 1906, and that:

“The obligations of said contract were and are heritable under the laws of this state, and devolved, with the interest of the said Liebler in said suit, upon the forced heirs of the said Robert F. Liebler.”

And that as to Jessie Nix, on account of the interest of the said minors in the suit, they having no tutor, he could not prosecute the suit or make any disposition thereof.

Second, and in the alternative only, in case the court should hold that said article of the Code does apply to him, then he:

“Alleges that said Article 3519 is unconstitutional, null and void in that it would deprive him of his property without due process of law.”

And third, that in case the court should hold:

“That the contract between the said Robert F. Liebler and Jessie Nix is a personal one, and not heritable, and therefore that said minors are without interest therein, then the said Shea, as tutor of said minors, alleges that Article 2000 of the Revised Civil Code of the State of Louisiana is unconstitutional, null and void, insofar as the same should be held by the court to defeat the interest of said minors.”

The plea of prescription was tried on May 1, 1925, and sustained.

From the judgment sustaining the plea and dismissing plaintiff’s suit, the plaintiff, Jessie Nix, appealed.

OPINION

It is undisputed that from Friday, November 2, 1917, the day on which counsel in open court had the case fixed for trial for December 3, 1917, until March 21, 1925, the day on which counsel moved in open court to have the case reinstated and placed on the ordinary docket—a period of seven years and four months—the plaintiff took no steps in the prosecution of the suit, nor was there any pleading filed or step taken by the defendant therein.

Article 3519 of the Civil Code, as amended by Act 107 of 1898, reads in part as follows:

“Whenever the plaintiff, having made his demand, shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

In the case of Lockhart vs. Lockhart, 113 La. 872, 37 South. 860, the syllabus, written by the eouyt, reads as follows:

“Under Act 107 of 1898, amending and re-enacting Article 3519 of the Civil Code, a suit is considered abandoned when, at any time before obtaining a final judgment, the plaintiff allows five years to elapse without taking any steps in its prosecution, and, at the suggestion of any party in interest it may properly be stricken from the docket or dismissed.”

In that ease the court said that the purpose of the amendment referred to was to substitute certainty for uncertainty, inasmuch as prior thereto the matter of abandonment of a suit was one of interpretation, depending upon circumstances and conduct and subject to no fixed rule. The amendment, however, declared under what circumstances a suit shall be considered abandoned.

Under the plain letter of the law and under the above cited decision and many others which might be cited, the plaintiff in this case abandoned his suit by his failure to take any steps in its prosecution for more than five years, and it was properly dismissed by the district judge.

But counsel for plaintiff urge that the rule does not apply in this case, for the reasons, first, that, previous to the filing of the suit the plaintiff entered into a contract with his attorney, Robert F. Liebler, by which said attorney, in consideration of services rendered and to be rendered by him, was to receive, as a fee, one-half of whatever might be recovered on final judgment, and stipulating that neither he nor his attorney could compromise or dismiss the suit without the consent of the other, and that his attorney having died, leaving minor children, without anyone to represent him, he, the plaintiff, could do nothing towards the prosecution of the suit.

This contract was entered into under the provisions of Act 124 of 1906, which provides that by written contract signed by the client, attorneys may acquire as their fee an interest in the proposed suit or claim, and that it shall be lawful to stipulate in such contract that neither party shall have the right to settle, compromise, release or discontinue or dispose of such suit or claim without the written consent of the other.

There is nothing in the law nor in the contract which plaintiff made with his attorney to prohibit plaintiff from prosecuting his suit in case the attorney died or neglected to continue his services. The law provides and the contract stipulated that neither the plaintiff nor the attorney could compromise, settle or dispose of the suit without the written consent of the other.

But it could not be reasonably inferred that in case the attorneys so employed should refus'e or decline for any reason to continue his services the plaintiff could not procure other counsel to represent him therein. It is true that under the contract the attorney acquired an interest in the suit, but that interest was purely contingent. He was employed, according to the wording of the contract, to “take all necessary legal steps in establishing the right or claim that the party of the second part (the plaintiff) may have against the Texas & Pacific Railway Company”; for which services plaintiff agreed to pay him “the amount hereinafter stipulated”. Then follows a sentence stipulating the conditions under which he is to receive compensation and the amount thereof, as follows:

“Should it become necessary for the party of the second part (the attorney) to file suit and contest the same through the courts, in this event the party of the first part (the plaintiff) agrees to pay to the party of the second part an amount equal to 50 per cent of whatever amount may be recovered.”

In the case of Roe vs. Caldwell, 145 La. 583, 83 South. 43, it was held that Act 124 of 1906 was intended as “a means of protection to the attorney with respect to his contingent fee”.

See Andirac vs. Richardson, 125 La. 883, 51 South. 1024.

It was never intended, we think, to deprive the plaintiff of the right to prosecute his suit in case the attorney so employed failed for any reason to continue to represent him.

In the case at bar, the attorney employed brought the suit. Whether he concluded to. discontinue his services is not clear, but we think the inference that he did is strong, for the record shows that the last step he took as attorney was on November 2, 1917, when the case was set for trial on December 3, following. On December 17, 1918, more than a year later, the case was, by order of the court, placed on the dead docket. There elapsed thereafter more than two years prior to his death in which he took no action. The inference, therefore, is strong that he had concluded to abandon the case.

But whether he did so conclude or not, the fact remains that it was plaintiff’s case and he was not prohibited under the law or the contract which he had entered into from prosecuting this suit. ' The attorney employed by him was not the plaintiff.

In the case of Rae vs. Caldwell, supra, the court held that Act 124 of 1906 was not intended:

“As a basis upon which a defendant can require a plaintiff to bring his attorney into a suit as co-plaintiff.”

The attorney employed was not the plaintiff nor was he a co-plaintiff.

In the cases of Loftin vs. Frost-Johnson Lumber Co., 133 La. 644, 63 South. 252, and Smith vs. Lyon Cypress Lumber Co., 140 La. 507, 73 South. 312, the court refused to consider an attorney employed on a contingent basis under the said act as a co-plaintiff and held that where it is shown that the plaintiff is not able to pay the costs he should be permitted to litigate without such payment even though the attorney with whom he had contracted might be able to advance the costs.

The Code provides in specific language that:

“Whenever the plaintiff, having made his demand, shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

The burden, therefore, of keeping the suit alive is laid upon the plaintiff and not upon the attorney he employs. If he allows five years to elapse without taking any steps, he is considered as having abandoned his case. If we should hold that a plaintiff is not responsible for such neglect on account of the death of his attorney we would read into the law something which is not there. Where the law is plain courts cannot deviate from it.

Counsel next contend that Act 107 of 1896, page 155, amending and re-enacting Article 3519 of the Civil Code, is unconstitutional in that it deprives plaintiff of his property without due process of law. As this point is merely referred to and not discussed in plaintiff’s brief, we conclude that it is not seriously urged. However, we can see no reason for holding that the statute is unconstitutional. If a plaintiff abandons his suit there is no reason why it should not be stricken from the docket. There was always a question as to what constitutes abandonment of a suit, and in order to make clear and certain that which was theretofore uncertain the Legislature specifically declared what should be construed as abandonment. That was the purpose of Act 107 of 1898, and that Act no more deprives plaintiff of his property without due process of law than do the laws fixing prescriptive periods for actions on debts.

Counsel’s last contention is that the minor children of the deceased attorney had an interest in the suit and that prescription did not run against them, is disposed of by the holding that their father was not a party to the suit and that under the law it devolves upon the plaintiff to prosecute the suit and keep it alive, and if he fails to do so the suit may be dismissed at the instance of any party interested.

The only question presented in this suit is whether, under the circumstances, the suit should be considered as abandoned.

For the reasons assigned it is therefore ordered, adjudged and decreed that the judgment appealed from, dismissing plaintiff’s suit as having prescribed and been abandoned, is affirmed with costs.


text:
    No. 2560
    Second Circuit
    BENJAMINE T. HARVILLE v. EICHER-WOODLAND LUMBER COMPANY, INC.
    (February 8, 1926, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant— Par. 156.
    Where all the evidence fails to show that the relationship of the employer and employee existed at the time of the injury, the injured workman suing for compensation under the Workmen’s Compensation Act No. 20 of 1914 cannot recover.
    (The recent amendment of Section 8 of Act 20 of 1914 is Act 216 of 1924. Editor’s note.)
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    This is a suit brought by an injured employee for compensation under Section 8, Subsection 1 (b), of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act 43 of 1922.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    D. W. Gibson; Thornton, Gist & Richie, of Alexandria, attorneys for plaintiff, appellant.
    Bruton T. Dawkins, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit under the Workmen’s Compensation Act (Act 20 of 1914 and the amendment thereof) to recover compensation for total disability during 400 weeks.

On the 9th day of June, 1925, the plaintiff was cutting logs in the woods, when a tree fell on him and seriously wounded him.

There is little, if any, dispute as to the extent of plaintiff’s injuries; but as this suit turns on another point, it is not necessaray to discuss the extent of plaintiff’s injuries; as we have reached the conclusion that defendant is not liable to him, because there did not exist, at the time of the injury, the relationship of employer and employee between him and the defendant company.

The defendant denies liability on the ground that plaintiff was not in its employ at the time of his injury, and the question as to whether or not he was in defendant’s employ is one-of fact.

Counsel for both plaintiff and defendant have quoted at length from the testimony, which they urge in support of their respective claims on this particular point. But we have carefully read all of the testimony, and the folowing is our summary thereof:

W. B. Clark an'd a man by the name of Atwood operated a small sawmill at Olla, Louisiana, during the year 1924 and possibly up to some time in the year 1925. It seems that they disposed of tjieir mill at Olla, and Clark purchased a sawmill located at Manifest, in Catahoula parish, at some time in the latter part of 1925 for the sum of $10,000.00. Fairbanks, a son of the party who previously owned the mill, testified that the mill was only leased to Clark with the privilege of purchasing the same at the sum of $10,000.00 at the end of six months. However that may be, it is not disputed that Clark and Atwood took charge of the mill at Manifest under the name of Clark-Atwood Lumber Company. Just what arrangement was made between Clark and Atwood with reference to the ownership and management of this mill is not very clear. However, we think that does not matter, as the facts are that they took charge of the sawmill and began to operate it at some time in the spring of 1925.

It seems that Clark and Atwood accepted an order from the defendant company for a bill of lumber in the month of May. They had no timber and they made arrangements with the defendant company to put up money to purchase a small tract of timber. It seems that the defendant company was willing to advance the money with which to purchase the timber in order that Clark and Atwood might fill the order which they had accepted for lumber. Later on it developed that Clark and Atwood did not have sufficient funds with which to make their payroll and Clark again sought the aid of the defendant company.

The testimony -clearly establishes that the defendant company agreed to advance the money with which to pay the labor employed in the operation of the mill, in order that Clark and Atwood might be enabled to fill the order for lumber which they had accepted.

It is the contention of the plaintiff that whereas Clark and Atwood began the-operation of the mill, the same was taken over and was being operated by the defendant company at the time the plaintiff was injured and that, therefore, the defendant is liable to him.

It is not contended by any one that Clark and Atwood either sold or leased this sawmill- to the defendant; the plaintiff merely claiming that after defendant began to advance money with which to operate the mill it took over the entire management thereof and was in charge of it at the time he was injured.

The testimony introduced by plaintiff on this point is summarized as follows:

The plaintiff himself testified that he was employed by a man named Smith on the 8th day of June, 1925. He says that this man Smith came to his house at night in company with Clark and that an agreement was reached that night. He says that Smith is the man who made the trade with him, and that Smith told him that Mr. Lewis, manager of the defendant company, was in charge of the mill and would see that the labor was paid. He says that Clark told him at the time that he had nothing to do with the mill but that the same had been taken oved by the EicherWoodland Lumber Company, Inc. He says that he has not seen this man Smith since that time. But it developed that Smith was nothing more than a common laborer and his absence was not accounted for at the trial by any of the witnesses.

Plaintiff was asked who he was. working for, and he said he did not know; that he was told by the man, Sniith, that he was to work for the defendant company.

John Leville, another witness called for plaintiff, testified that he was woods foreman on June 10, 1925, and was working for the Eieher-Woodland Lumber Company, Inc., and was hired by Mr. Lewis, its manager. He says that Harville was working under him and that the man, Smith, whom Harville claimed hired him, was only a common laborer in the woods. He said that a man named Simpson paid off under Lewis’ instructions and was supposed to be the mill foreman. He testified that Atwood and Simpson shipped the lumber and that Lewis brought money to the mill and that Simpson paid off, but that he turned in his time to Atwood. He says, furthermore, that at the time Harville was hurt Clark had quit and that the defendant company had taken over the management of the mill. He does not know this of his own personal knowledge, but says that all he knew about it was what Simpson told him. He says that Clark did not stay at the mill regularly but went and came.

He testified, further, that Lewis gave instructions as to the length of the logs to be cut.

W. B. Clark, who was called as a witness for plaintiff, says that Lewis, the manager of the defendant company, was running the mill when Harville was hurt. Inasmuch as there is a dispute as to who employed this man, Simpson, it is well here to state that Clark, in a portion of his testimony, states positively that he did not employ Simpson but that Simpson was brought to the mill and put in charge thereof by Lewis, the manager of the defendant company. However, on this particular point Clark, on cross-examination, virtually admits that he did employ Simpson as a sawyer and that he employed him for the reason that his partner, Atwood,. was sick and that while he, Clark, preferred to do his own sawing, yet there was nobody to take charge of the woods, and that he put Simpson in charge of the mill so that he, Clark, could take charge of the woods.

The testimony of Mr. Lewis on this point is that Simpson had been sawyer for a man named Moody but was out of employment at this particular time and that he took Simpson to Clark in order that Simpson mjght procure work, and that he personally was anxious to see Simpson get the work because he knew him to be a good sawyer and he was interested in seeing that Clark got out the lumber to fill his order.

Simpson himself says that he was employed by Clark to take charge of the mill and to do the sawing.

Atwood, Clark’s partner, testified that Clark told him that he had employed Simpson to do the sawing and take charge of the mill. He further testified that he kept the time, made out the payrolls, and that when the payrolls were submitted to the defendant company it furnished the money with which to make the payment, and that Simpson paid the hands.

We think there is no question but that the man, Simpson, was employed not by the defendant company but by Clark to take charge of the mill. Clark states positively that he was not in charge of the mill at the time the plaintiff was hurt, although there are some portions of his testimony which would indicate that he is mistaken about that.

A man by the name of Montpelier testified that he was working for John Deville in the woods; that he did not know for whom he was working but that Lewis paid him, and he says that Lewis told him to go to work and that he would be responsible for his pay. He says that Atwood, Clark’s partner, w'as the timekeeper and that Simpson was in charge of the mill, and that Clark was around the mill, but that he does not know what Clark was doing there.

A man by the name of Fairbanks, called as a witness for plaintiff, testified that Simpson was operating the mill in June and July, and that he talked with Simpson in the latter part of June and that Simpson told him that he was operating the mill for the defendant company, and told him, further, that they were charging the expenses of operating to the Clark-Atwood Lumber Company because they were afraid that the plaintiff would bring suit against them for his injuries.

Turning now to the testimony introduced by the defendant, John L. Lewis, manager of the defendant company, details the transaction which his company had with Clark and states that his company agreed to advance the money with which to buy the timber and to make the payrolls in order that Clark-Atwood Lumber Company might be enabled to fill the order for lumber which they had accepted. He states, positively, that his company at no time had charge of the mill; that it neither hired nor discharged anyone, and that while Simpson was in charge of the mill he had charge of it as an employee of Clark.

He testifed, further, that his company is not engaged in' the business of manufacturing lumber, but that it is a wholesale dealer in lumber and does not operate mills. He admits that his company did advance money with which to make the payrolls, but he says it took no part whatever in the management of the mill.

As previously stated, Atwood, Clark’s partner, was called as a witness for defendant and testified substantially that Clark told him that he had employed Simpson to take charge of the mill and that he and Simpson paid the men when Lewis furnished the money on behalf of the defendant company.

He states, further, that Clark told him that the defendant company was to furnish the money with which to pay off the hands, and he states, further, that the defendant company had absolutely nothing to do with the management of the mill at any time and that all the supplies for the mill were purchased in the name of Clark-Atwood Lumber Company.

Clark testified that at one time he posted a notice at the mill to the effect that he had nothing further to do with it and that he would not be responsible for -any of the debts of the mill. Clark was asked whether or not this notice was posted prior or subsequent to the date on which the plaintiff was hurt, and he testified that he was not positive on that point. Atwood, on the contrary, testified positively that this notice was posted by Clark some ten days or two weeks subsequent to the date on which plaintiff was injured.

As already stated, Simpson declared positively that he was employed by Clark and that all he did in connection with the operation of the mill was as an employee of the Clark-Atwood Lumber Company.

Mr. J. H. Ei'cher testified that at no time did his company take over the operation of the mill but0 that it merely advanced the .money with which to purchase the timber and make the payrolls; and, further, that his company had never at any time operated a sawmill.

Mr. N. J. Woodland, secretary of the defendant company, knew nothing about the transaction, but stated that the company was a wholesale dealer in and not a manufacturer of lumber.

Gus Deville, another witness called by defendant, says that he was employed by Clark and that Clark had charge of the woods for some time after plaintiff was hurt. He says that Lewis or Simpson told him that they would see that he got his pay.

A man hy the name of Prudhomme testified that Lewis told him that he was hacking the payroll.

To summarize, our conclusion of the testimony is: ' That the defendant company did not at any time take over the management of the sawmill concern and that all it did was to furnish the money to purchase the timber and make the payrolls, which amounts were furnished in order that Clark-Atwood Lumber Company might be enabled to fill the order. Our conclusion further is that if it may be said that the defendant company did take charge of and operate the mill, it did so after the plaintiff was hurt. That being true, even conceding plaintiff’s contention that defendant was virtually the owner and operator of the mill, there was no contractual relations between the plaintiff and defendant.

Plaintiff does not contend that he made his contract with the defendant company, but, on the contrary, says that he was employed by a man named Smith, and it is not shown that Smith was anything more than a common laborer in the woods with the plaintiff or that he had any authority whatever to make the contract.

Counsel for plaintiff makes the point that the defendant did not account to the Clark-Atwood Lumber Company for the expenses of operating the mill or for the proceeds of the sale of the lumber, thus showing that the defendant company practically took over the entire mill outfit and the management thereof and recognized no responsibility to plaintiff. However, on this point Clark was asked if the defendant made any statement to him and he replied that he had not received a statement personally but that he thought one had been made to Mr. Atwood.

We think the testimony clearly establishes that there was no contract, either express or implied, between plaintiff and the defendat company, on the day he was hurt, and that he cannot, for that reason, recover. This was the conclusion reached by the judge of the lower court and we think he did not err.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 2458
    Second Circuit
    BONNET-BROWN SALES SERVICE v. THE BUNKIE RECORD, ET AL.
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Depositions—Par. 16.
    The return day for taking testimony fixed in the commission having expired, testimony thereafter taken under the commission was taken without authority and cannot be received in evidence. Wiggins vs. Guior, 12 La. Ann. 177.
    2. Louisiana Digest—‘Obligations—Par. 26, 37.
    There can be no recovery under a contract the consideration for which has failed. Phillips vs. Adams, 52 La. Ann. 444, 27 South. 65.
    3. Louisiana Digest—Obligations—Par. 145; Sales—Par. 120.
    Where a note is given for a special equipment for the purpose of getting out a Christmas edition of a newspaper under an agreement that the note and accompanying contract will be null if the equipment is not delivered by December 15, 1923, time is of the essence of the contract and the note and contract cannot be enforced if delivery of the equipment is not tendered until January 21st of the following year.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    STATEMENT OP THE CASE
    Plaintiff sues on a promissory note forming part of a written agreement. Defendants denied' liability on the ground that the consideration for which the note was given had failed, for the reason that the note was given for an equipment to get out a Christmas edition of the Bunkie Record under an agreement that it would deliver in Bunkie on December 15, 1923, or the note and contract should be null and that the equipment was not tendered until January 21st of the nest year, when it was refused.
    On these issues the case was tried and there was judgment rejecting plaintiff’s demand and plaintiff has appealed.
    Judgment affirmed.
    William A. Morrow, of Marksville, attorney for plaintiff, appellant.
    J. W. Joffrión, of Marksville, attorney for defendants, appellees.
   REYNOLDS, J.

OPINION

The decision in this case depends upon the contract between plaintiff and defendants.

C. K. Michael, one of the defendants, testified, without objection, page 1:

“Q. Will you state to the court when you entered into this agreement and gave this note to the Bonnet-Brown Sales Service Company?
“A. It was on the 5th or 6th of December, 1923. It was the service they have that provides the printers stereotype without (____________________________). That is mats prepared already for stereotype, and when they sold me their service it was understood that I was to receive it in time to get out the Christmas edition of the Bunkie Record. It was necessary that I should have it by the 14th or 15th of December in order to do that. I had gone around and arranged with the advertisers for increased advertising for that time. Their salesman sold me that with the understanding that he was to deliver it by the 15th and not the last of December. He said he would leave the office at once and telegraph to the house to be sure that it would reach me at that time, because he knew that I would not have it and it was understood between us that it would have to be delivered to me the 15th to be used for the Christmas edition.

Page 2:

“Q. When did you receive that service if you received it at all?
“A. I did not receive it. I received the mats. That was not the complete service.
“Q. What do you mean by that?
“A. It is mats that are intended for the purpose of placing in a stereotype outfit. The service, as they call it, is the complete thing, the machine and other things. That is the stereotype service. Those were to come to me once a month. My recollection is that the first bunch of mats came prior to the 15th of December, but the machine to use them on didn’t come until the 20th or 21st of January following, so that the mats were useless. They could not be used on any other machine. The mats for the following month were never received nor any subsequent service throughout the year ever came. I refused to accept the machine.
“Q. I understood that you had never received it?
“A. I did not receive it. I refused to accept it. I refused to accept it when it arrived because it had not reached rme in time to be of any service to me.
“Q. Was that outfit to be used for the Christmas holidays?
“A. That was the agreement between me and the agent that they would reach me by that time, and I had prepared everything for a larger Christmas edition.”

Page 3:

“Q. What were the conditions of this agreement?
“A. I agreed to buy the machine. I told him that the price of the machine did not justify me in buying it for general use in the office. It would only be useful to me in getting out special editions of the paper, because the ordinary paper machines were, good enough for ordinary uses week by week, but for special occasions like Christmas a machine of that kind I could use and would buy the machine with the understanding that it would be delivered to me within the week from the time of purchase, and that if he could do that I would go ahead contracting for ads sufficient to help me in getting out a large edition. He said there was no question about the delivery; that it would reach me by .the 15th of December in Bunkie in time to get the edition out, and in time to contract for ads. He told me that I could go ahead and make my contracts; that he would leave the office at once and telegraph to his firm to ship the machine and service so that it, would reach me not later than the 15th of December.

Page 4:

“Q. Was time made one of the essential elements of that contract?
“A. The time was an essential element; otherwise it would not have been of any use to me. The agent so understood it.”

Jim Norman testified, page 7:

“Q. Did you hear any part of the agreement between the plaintiff company and Mr. Michael?
“A. Yes, sir.
“Q. Where were they talking?
“A. In the back' part.
“Q. 'What portion or what part of the agreement did you hear Mr. Normand?
“A. You want me to tell it all?
“Q. Yes.
“A. When I came in the back, the salesman said that he was going to send this machine by the 15th of December for the holiday: for the Christmas edition at least.
“Q. Did Mr. Michael say anything about the time that he was to send it?
“A. He said if it did not get there on that time, the 15th or 16th, it would be of no use for him.
“Q. Did you hear Mr. Michael tell him that?
“A. Yes, sir.
“Q. What did he say?
“A. He said I will see that it will be here by the 15th of December.
“Q. Did you all make preparations for a special edition for that Christmas?
“A. Yes, sir.
“Q. Was this stereotype machine and mats to be used in this special edition for that Christmas?
“A. Yes, sir.
“Q. Did you receive that machine Mr. Normand?
“A. No, sir.
“Q. Were you all able to get out that special edition of the Bunkie Record for that Christmas?
“A. Yes, sir, if it came in time.
“Q. Did you get it out as extensively and elaborately as you had planned to get it out?
“A. No, sir.”

Plaintiff did not offer any testimony contradicting that of either of these two witnesses. It tendered testimony taken under commission, of its president and shipping clerk; but the testimony • was taken after the time named in the commission for taking it had expired and it was therefore inadmissible under the authority of Wiggins vs. Guier, 12 La. Ann. 177. The trial judge properly refused to allow the admission of this evidence.

Under all the evidence in the case we are convinced that the consideration for which the note was given had failed.

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