author: WEBB, J.

text:
    No. 2981
    Second Circuit
    NOLAN v. CITY OF SHREVEPORT, ET ALS.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    EXCEPTION NO CAUSE OF ACTION
    1. — Louisiana Digest — Negligence—rPar. 38; Municipalities — Par. 227.
    An allegation in a petition that a gas pipe had been negligently constructed in the street is sufficient allegation under which to show negligence and states a cause of action.
    2. Louisiana Digest — Negligence—Par. 38; Municipalities — Par. 227.
    There being no law requiring plaintiff in a damage suit to allege that she was in the exercise of ordinary care, an allegation that an obstruction had been negligently placed in the street over which she fell is sufficient to state a cause of action.

      3.Louisiana Digest — Municipalities—Par. 227; Pleading — Par. 23, 62.
    The general rule is that one using the street of a city may presume that it is not obstructed and that she exercised ordinary care. Therefore, where plaintiff alleges that she became alarmed and hastened out of the house and across the street and in doing so tripped on an obstruction, she states a cause of action.
    ON THE MERITS
    4. Louisiana Digest — Municipalities—Par. 263'.
    Where a street is sufficiently lighted for one to see an obstruction, one is negligent in rushing over this obstruction while a child is in her arms without first observing the obstruction.
    5. Louisiana Digest — Municipalities — Par. 262, 263, 265.
    One is excused for the lack of ordinary care where the emergency was produced by the act of the defendant, but this excuse will not apply to the lack of ordinary care by one rushing across .the street because of a child and not because of any act of the city.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    . Action by Mrs. Lee Nolan against the City of Shreveport, et als.
    There was judgment for defendant and plaintiff appealed.
    'Judgment affirmed.
    ■ Galloway - & Johnson, Shreveport, attorneys for plaintiff, appellant. . -
    Hunter, Morgan & Hunter, Shreveport, attorneys for defendants, appellees.
   WEBB, J.

In this action plaintiff, Mrs. Lee Nolan, seeks to recover judgment against defendants, City of Shreveport and Southwestern Gas & Electric Company, for damages resulting from injuries alleged to have been sustained by plaintiff while crossing a street in the city of Shreveport as a consequence of plaintiff’s having fallen on a gas shut-off pipe constructed by the Gas Company and maintained by defendants in the street.

The defendants excepted that the petition failed to state a cause of action, which was overruled, and they answered denying any negligence and, in the alternative, alleged that plaintiff was guilty of contributory negligence; and the cause being tried on the issues presented, judgment was rendered rejecting her demands, ■ from which she appeals, and defendants, answering the appeal, pray that the exception filed by them be sustained, and, if not, that the judgment appealed from be affirmed."

EXCEPTION OF NO CAUSE OF ACTION

The exception is apparently urged upon the following grounds;

1.' That ' there' is ’ not "any wéll-pleaded' 'fact' of negligence on the part of defendants.

2.’ That plaintiff did not allege she exercised ordinary care in crossing the • street. • •

3. That the facts alleged show that plaintiff was guilty.of contributory negligence.

I.

The plaintiff alleged that the gas shutoff pipe on which she tripped and fell had been negligently constructed in the street by the Gas Company about three years prior to the date of the accident and that in installing the gas shut-off pipe it had been left standing approximately eight inches above the surface of the street, thereby rendering it a very dangerous obstruction to the life and limbs and safety of the public, and, further, the pipe was located in the street directly in front of plaintiff’s residence, thus rendering it especially dangerous to one attempting to cross the ^street from plaintiff’s residence; and further, that the pipe had been permitted to remain in the same condition and place since its construction to the date of the accident, to the knowledge of defendants. Plaintiff also alleged that the city of Shreveport had failed to properly light the street.

Ignoring the allegation as to the street not being properly lighted, in considering the exception, we are of the opinion that the allegation that the gas shut-off pipe was installed in the street in such manner as to leave it extending eight inches above the surface of the street, is one of fact and shows the street was obstructed, and while the extent of the obstruction may have been set forth with greater particularity as by stating the diameter of the pipe, yet we think that was a matter- of which the defendants may have availed themselves by an exception of vagueness (James vs. City, 151 La. 480, 91 So. 846), but that any obstruction of a street being unlawful the allegation was sufficient.

II.

While the plaintiff does not allege that she exercised ordinary care in crossing the street, counsel do not cite any authority holding that such an allegation was necessary, and in Buechner vs. City of New Orleans, 112 La. 599, 36 So. 603, a cause in which damages were awarded for an injury sustained through the negligence of the city to maintain the street in a safe condition, it was said:

“In order to make out a prima facie case, the plaintiff must allege and prove that he was injured by the fault or negligence of the defendant. * * * It is true, as a general rule, that if the evidence shows that plaintiff was also at fault, and that the concurring fault of both parties produced the injury, plaintiff cannot recover. But it does not follow that plaintiff must allege and prove that he was without fault.”

It is true that the rule of law is that the city is only bound to maintain its streets in a reasonably safe condition for persons exercising ordinary care, and while it may be that the plaintiff should allege facts showing that the street was not in such condition, in order to charge the city with negligence, yet we think that the allegations of fact showing that an obstruction had been placed in the street, is sufficient for that purpose, and in default of any law requiring plaintiff to allege that she was in the exercise of ordinary care, we think it may be assumed she was in the exercise of ordinary care.

III.

The contention that plaintiff alleged that she was guilty of contributory negligence-is based upon plaintiff’s allegations of the circumstances occurring just prior to and at the time she attempted to cross the street, which were in substance that: A neighbor’s child who lived across the street from plaintiff was visiting her at about 8 o’clock on the evening of the accident, was suddenly seized with violent chills and rigors, and that plaintiff became alarmed, and took tne child in her arms and hastened out of the house and across the street, and in so doing she tripped on the gas shut-off pipe and fell, sustaining the injuries of which she complains.

While the action of plaintiff may have been imprudent from some points of view, it does not necessarily follow from the pleadings that it was so; she did not allege that she knew of the obstruction in the street or that she proceeded heedlessly and without regard to the way, and we cannot presume the existence of such conditions; but, on the other hand, in view of the general rule that one using the streets of a city may presume that it is not obstructed, and that she exercised ordinary care, we are of the opinion the court properly held that plaintiff did not allege that she was negligent, and the exception was properly overruled.

MERITS

On trial the evidence established that the accident occurred in the sparsely settled portion of the city on an unimproved street in the center of which the city, had graded a roadway for vehicular traffic leaving on each side of the roadway in its natural condition a space of about nineteen feet. The gas shut-off pipe which was several inches in diameter was constructed and located by the Gas Company as alleged by plaintiff; it extended approximately eight inches above the surface of the ground and was located at a point near the roadway (within the nineteen feet above referred to) directly in front of and at a distance of about fifty feet from plaintiff’s residence.

The plaintiff knew of the condition and location of the gas shut-off pipe, having had occasion to observe it since its construction, and on the occasion of the accident plaintiff was proceeding from her residence to a neighbor’s residence directly across the street and carrying in her arms a child of about three years of age, and as she was crossing she tripped on the gas shut-off pipe and fell into the street.

The plaintiff was a frail woman, very nervous, having been in poor health for several years prior to the accident, and when the child who was visiting her showed some symptoms of being chilled, plaintiff became unnecessarily alarmed, and, in her haste to get the child home, she attempted to cross the street, oblivious of the way (although the evidence shows that the light was sufficient to have enabled plaintiff to have seen the obstruction and other unevenness in the roadway) and she fell with the child in her arms.

Conceding, without deciding, that the city was bound to maintain that portion of the street where the shut-off pipe was located in a reasonably safe condition for persons using the street in the exercise of ordinary care, it must be conceded that plaintiff cannot recover (Whalon vs. Sewerage & Water Board, 142 La. 735, 77 So. 530; Peetz vs. St. Charles Street R. R. Co., 42 La. Ann. 540, 7 So. 688; Burke vs. Tricalli, 124 La. 774, 50 So. 710), unless it can be said that the failure to exercise ordinary case was excusable by reason of her alarm occasioned by her anxiety at what she conceived to be the condition of the child.

The authorities which are cited by the plaintiff in support of her contention in that respect we do not think are in point.

In Mayronne vs. Keegan, 117 La. 661, 42 So. 212, in which the syllabus on original hearing reads:

“Where a boy ten years of age was walking at night on a public levee, and was frightened by dogs, and thereupon- ran down into a street and came into violent contact with certain pieces of machinery negligently left in the public thoroughfare by the employees of the defendant, and was thereby seriously injured, the defendant will be held responsible in damages.
“In such cases the unlawful obstruction of the street is the proximate cause of the injury, and it is no excuse that, defendant did not anticipate that any person would approach the street from the levee or would be frightened therefrom by the pursuit of dogs”—

is distinguishable from the present case in many respects, and especially in that the plaintiff in the case cited acted in an emergency where his safety was apparently imperilled, while in the present instance the assumed emergency or peril under which the plaintiff acted related to another, and in such situation it is generally conceded that in order for the person injured to be excused from exercising ordinary care, or negligence, the emergency must have been produced by the act of the defendant (R. C. L., Negligence, Yol.' 20, Sec. 108 et sect.; 29 Cyc. 524); and it is not, of course, contended that the emergency in which plaintiff acted was created by the defendants.

There are other cases cited by plaintiff in which a pedestrian was held not to have been guilty of negligence in failing to observe an obstruction or defect in the street by reason of the fact that his attention was diverted from the street on account of it being necessary for him to observe the traffic, or in having his attention directed to other matters which the city should have reasonably apprehended would be the case; which, of course, are recognized to be distinguishable from the present case.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit
    WORTHY v. BAILEY
    (December 6, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Landlord and Tenant —Par. 83, 88.
    Rent, paid in settlement of suit, but not in error or under duress, cannot be recovered in suit for diminution of rent' ' on account of alleged failure of • land- • -. lord -to build cabin. - ,
    2. Louisiana Digest — Damages — Par. 1; Offenses and Quasi Offenses — Par. 1.
    Damages cannot be recovered for loss of labor in making crop where loss of labor was not due to defendant’s fault.'
    , Appeal. fr.om the District Court, Parish. of East Baton Rouge. Hon. Wm. Carruth Jones,- Judge.
    Action bjf Thomas B. Worthy against' Mrs. Fannie Conrad' Bailey.'

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Jos. A. Loret, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Thomas B. Worthy claims against Mrs. Fannie C. Bailey damages to the extent of $600.00, but an item of $53.00 for labor performed in building a wire fence and covering a barn, included in the amount, was settled amicably before the trial, and was in that way eliminated from the.case.

Another item of $55.86 for attorney’s fees, included in the amount, was also eliminated before the trial in the lower court, by an exception of res adjudicata, and is not now urged in the case.

It is claimed by plaintiff on this appeal that he rented from defendant 100 acres of a plantation with two cabins thereon, with the promise that defendant would also build thereon a new cabin.

The alleged price of the lease was $600.00 per annum. •

Petitioner urges that the delivery was short 20 acres, and that defendant failed to build a new cabin as promised. That the land was leased at the rate of $6.00 per acre. That plaintiff is therefore entitled to a diminution of the rent to the extent of $120.00.

The evidence shows that plaintiff had paid the full rent stipulated for in his contract with defendant previous to the institution of this suit: It was done .under protest, but in settlement of a suit against him by defendant on account of the rent in question.

The petition does not allege that the rent was paid in error nor under duress; the evidence shows that it was not paid in error or under duress; but intentionally, in settlement of a suit for the purpose of recovering it. This item was properly rejected by the lower court.

Another and more important claim is one for damages, on the ground that defendant interfered with John Wilson, plaintiff’s tenant, to whom he had leased twenty acres of land with a cabin thereon, which the plaintiff had leased from defendant, and caused him to move off the premises and take up his residence in another cabin situated on her plantation about a mile distant from the one he was occupying at the time, under his sub-lease from the plaintiff.

Plaintiff testified that this tenant agreed, as an undertaking in his contract of lease, to work by day labor for plaintiff some of the other land which the plaintiff had leased from defendant.

That due to defendant’s interference with his tenant, in the way stated, he was unable to get this tenant’s labor and help in gathering his crop, and as a result lost the greater part of it. That he was, for the same reason, unable to make and market a fall vegetable crop, and thereby sustained a loss on that account.

Mrs. Bailey asked the negro tenant to move into another cabin, distant about a mile from the one which he was occupying at the time under sublease from the plaintiff. She should not have done this, for the purpose explained by her, and would be liable in damages if plaintiff had been able to show that he had sustained damages as a result of his loss of labor; but it does not appear from the evidence that plaintiff lost his tenant’s labor on that account. The plaintiff himself testifies that John Wilson did not help him when called on, because he was engaged in gathering his own crop..

The evidence does not indicate that his tenant was under obligation to neglect his own crop in order to labor in that of the plaintiff. John Wilson, testifying on the subject himself, says that he could not help the plaintiff because he was engaged at the time in gathering his own crop, such being the case, there is nothing to show that even if John Wilson had not moved, the result would have been different.

Plaintiff cites Dixon vs. Dixon, 33 La. Ann. 1261, as a controling authority, but we find that the case in question does not govern the facts of the present case.

The judgment rejecting plaintiff’s demand appears to be correct.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No. -
    First Circuit
    PELAYO v. HIGGINBOTHAM
    (December 6, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 157.
    In view of Articles 1913 and 1914 of the Civil Code, where money on deposit was to be applied to the purchase of a new automobile chosen by purchaser, seller could not be put in default until purchaser had first offered to comply with contract.
    2. Louisiana Digest — Obligations—Par. 176, 178; Pleading — Par. 62.
    An allegation in a petition that amicable demand had been repeatedly made upon the defendant does not expressly nor by implication supply the lack of allegation that plaintiff had offered to perform his part of the agreement or that defendant had been placed in default. Exception of no cause of action is maintained.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by' Sidney M. Pelayo against C. or Arthur Higginbotham.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Moise Thibodeaux, of Baton Rouge, attorney for plaintiff, appellant.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

An exception of no cause of action was maintained by judgment herein rendered from which plaintiff prosecutes this appeal.

The suit of the plaintiff is founded on a contract which he entered into with defendant on November 5, 1924, who was then operating a business under the name of the Cadillac-Nash Sales Company, as appears from the allegations of the petition. The party of the first part named in the contract was the Cadillac-Nash Sales Company; that of the second part was S. M. Pelayo, plaintiff.

The contract reads as follows:

“Should the party of the first part sell or dispose of the Nash touring car owned by the party of the second part, the party of the first part will give to the party of the second part Seven Hundred ($700.00) Dollars in cash from the proceeds of said sale, and place to the credit of the party of the second part Two Hundred ($200.00) Dollars, which amount the said party of the second part must leave as a deposit to be credited on a new Nash car, to be purchased and delivered not later than six months from this date at the prevailing prices on the date said car is delivered.
• “It is optional with the party of the second part what model will be bought by said party, but car must be a model still being manufactured by the Nash Motor Company.”

Plaintiff alleges that the ear he had given for sale to defendant was sold by the Cadillae-Nash Sales Company for Eleven Hundred ($1100.00) Dollars through its agent, B. E. Norwood; that he received in accordance with the stipulations aforesaid, $700.00 from the proceeds realized therefrom, but that defendant has never restituted or returned to him from those proceeds the sum of $200.00 as required under the terms of said agreement, although more than six months had expired since the date of the contract which was executed November 5, 1924. The foregoing embodies the allegations of the petition, and the recitals of the contract which are pertinent to the issues presented, and necessary to a proper solution of the question involved.

' Plaintiff prays for judgment against defendant for the sum of $200.00 with legal interest thereon from the date of the contract.

It is clearly stated in the contract that the two hundred dollars which were expected or required to be realized from the sale of plaintiff’s car in addition to the $700.00, were to" be left as a deposit with the Cadillaq-Nash Sales Company to be credited or applied on a new Nash car that was to be purchased, not later than six months from the date of the agreement at prevailing prices; the right of option as to the model being reserved to plaintiff, with the understanding that the selection would be circumscribed to a car manufactured by the Nash Motor Company.

The $200.00 for which plaintiff sues, it will be noted under the terms of the contract, were to be applied to a new car which was to be purchased, it is true, not later, as the agreement reads, than six months after its date, but there is nothing to indicate, under its provisions, that the performance of that stipulation after the expiration of that period of time would have been impossible, or that the term so fixed was so essential to the contract that the mere expiratioii thereof had the effect of placing defendant in default. Erwin vs. Fenwick, 6 Mart. N. S. 236.

It also appears from the other essential features of the contract that plaintiff, under its terms, specially reserved the right to select the model of the new Nash car to the purchase of which the $200.00 were to be applied. It is therefore apparent that defendant had to keep this amount in deposit for application as stipulated, and of necessity,, had to await the selection which plaintiff would decide to make. There were under the agreement reciprocal obligations imposed upon plaintiff and defendant; on the part of defendant to keep the $200.00 on deposit, and on the part of plaintiff to' direct its application to the purchase of a new car of the model to be chosen by him. This was the part of the contract which plaintiff had to offer to perform, otherwise defendant, the opposite party, could not be put legally in default. C. C. 1913, 1914; Silverman vs. Caddo Gas & Oil Co., 127 La. 928, 54 So. 289; Stewart vs. Paulding, 6 La. 151; Cousin vs. Schmidt, 143 La. 848, 79 So. 427; Petit vs. Laville, 5 Rob. 118.

Plaintiff, in his petition, averred, it is true, that defendant had never complied with the stipulation of the contract in reference to the $200.00 under discussion, although amicable demand had been repeatedly made upon him, but such an averment does not carry with it, expressly or by implication, that plaintiff had offered to perform his part of the agreement or that defendant had been placed in default in the manner required by law. In the absence of allegations of fact of the character above outlined, the demand was fatally defective, thus entailing a dismissal-of the suit as properlyaheld below.


author: LECHE, J.

text:
    No. -
    First Circuit
    FISETTE v. MUTUAL LIFE INS. CO.
    (June 28, 1927. Opinion and Decree.)
    (October 6, 1927. Rehearing Refused.)
    (See 4 La. App. 430 and 162 La. 620, 110 So. 880.)

      (Syllabus by the Editor)

    •1. Louisiana Digest — Insurance—Par. 177; Evidence — Par. 230.
    Under Civil Code, Article 2276, parol evidence may be used to prove fradulent concealment on the part of the insured whose application stated policy not to take effect until first premium paid during continuance of good health, where insured was in bad health when first payment was made.
    2. Louisiana Digest — Insurance—Par. 80.
    Insurance policy is null and void for fraudulent concealment on part of insured when paying first premium while in poor health contrary to the terms of agreement in application for insurance. Premium is returned.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Marie S. Fisette against Mutual Life Ins. Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    R. Lee Garland, of Opelousas, attorney for plaintiff, appellée.
    Sandoz & Sandoz, of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

This appeal was heard at the spring session of this court, held in Opelousas in 1926, and was decided in June, 1926. A writ of review was. granted therein by the Supreme Court and our decision was reversed in November, 1926. See Fisette vs. Mutual Life, etc., 162 La. 620, 110 So. 880. Tlffi case is fully stated in the opinion of the Supreme Court, and in our own decision published in 4 La. App. 430.

Our former decision was based entirely on the defense that the application to re-establish the policy and the medical examination held thereunder, formed part of the contract of insurance and that the evidence showed fraudulent concealment in that medical examination, sufficient to avoid the whole contract.

• The Supreme Court, in its opinion, held that we were in error in considering the application to re-establish the policy and the medical examination thereunder, as forming part of the contract, and upon that ground reversed our finding of law. The Supreme Court then remanded the case to this court.

It is not conceivable that the case was remanded simply to enable us to perform the perfunctory duty of entering a decree. Mr. Justice Thompson’s dissent shows that the majority members of the court did not so intend. The court, in its opinion, says:

“Aside from the alleged false statements of the insured in his application for establishing or placing the policy in force, which we now hold could not be used in defense of this suit, the question of liability of the company was not decided •by the Court of Appeal.”

Wherefore, in order to pass finally on the question of the liability of the company, the case was again placed on the docket of this court, and was reargued.

The insurance company now urges the defense that when the premium was paid, August 7, 1924, insured was to his own knowledge not in good health, and under the clause in the original application, that the policy “shall not take effect unless and until the first premium shall have been paid during my continuance in good health”, the policy never did take effect.

Although this defense was not passed upon by this court in its former opinion, as it then appeared unnecessary for a decision of the case, it was nevertheless made in the answer, at page 3, where “defendant alleges on information and belief that Fisette was not in good health when the policy was delivered and the first premium paid as required by the application”.

The rule of law, Art. C. C. 2276, excluding parol evidence offered to contradict or vary written acts, supported by the numerous authorities cited in argument, presents no good reasons why this allegation, which on its face shows deception and fraudulent concealment on the part of the insured, may not be proved by parol evidence. It was a material condition in the original application for the policy, and though the written application itself may have been filed in good faith by the insured, the alleged defense charges an act of fraudulent concealment which was only subsequently committed. Indeed, it could not otherwise be proved. Such evidence in no manner contradicts or varies the terms of the written contract. The fact charged in this defense is proved by the testimony in the record. That testimony may not have been offered solely to establish this defense, but it was nevertheless admissible for the purpose and it is part of the record. When Dr. Pavy told insured in July, 1924, that he was a very sick man and unless he did something for himself he would die within the year, insured had not yet paid the premium on the policy, and it follows that when he did pay he knew, as a matter of fact, that he was not in the “continuance” of his good health.

This is fatal to plaintiff’s demand and that demand should therefore be refused.

For these reasons the judgment appealed from should be avoided and reversed and the premium deposited by defendant in the registry of the court recognized as belonging to plaintiff, and it is so ordered.


text:
    No. -
    First Circuit
    PLANTERS BANK & TRUST CO. v. MUTUAL LIFE INS. CO.
    (June 28, 1927. Opinion and Decree.)
    (October 6, 1927. Rehearing Refused.)

      '{Syllabus by the Editor)

    See Syllabus “Fisette vs.- Mutual Life Ins. Co.” on page 226.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Planters Bant & Trust Company against Mutual Life Ins. Co.
    There was judgment for plaintiff and defendant appealed. ■
    Judgment reversed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    Sandoz & Sandoz,' of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

This is a companion case to that of Mrs. Marie S. Fisette vs. the same defendant. The two cases were consolidated for trial and involve the same issue.

For the reasons stated in the case of Mrs. Marie S. Fisette vs. Mutual Life Insurance Company, this day decided, the judgment appealed from herein should be avoided and set aside at ■ the cost of plaintiff, and the premium paid by - the insured and deposited by defendant in the registry of the court should be recognized as belonging to plaintiff, and it is so ordered.


text:
    No. 3145
    Second Circuit
    HOWELL v. TITUS
    (November 10, 1927. Opinion and Decree.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Pleading—Par. 67.
    Where two cases appéaled from the justice of the peace court are consolidated •for the purpose of trial de novo in the district ■ court, a plea of lis pen-dens filed in the district court will be overruled.
    2. Louisiana Digest — Appeal—Par. 625.
    Where judgment of trial court on credibility of witnesses as to matters of fact is not manifestly erroneous, it will be affirmed by the appellate court.
    3. Louisiana Digest — Sequestration—Par. 7, 8.
    Under Paragraph 8 of Article 275 of the Code of Practice and Act 190 of 1912 a writ of sequestration is properly maintained where defendant denied ownership of plaintiff and evidence showed defendant had sold part of crop and attempted to sell another part of crop which belonged to plaintiff.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Mary F. Howell against Andrew Titus.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Foster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action the plaintiff, Mrs. Mary F. Howell, alleging that she had leased certain lands to defendant, Andrew Titus, under which plaintiff was to receive one-half of the crops raised on the premises, and that defendant had denied her ownership in one-half of the crops raised by him, and had attempted to sell same, and that plaintiff had reason to fear that defendant would conceal, part with or dispose of the crops during the pendency of the suit, prayed for and obtained a writ of sequestration under which the crops were seized, and plaintiff further prayed that after trial she have judgment recognizing her as the owner of one-half of the crops (cotton) and that the writ of sequestration be maintained, and that the property seized be sold and plaintiff be paid by preference and priority an undivided one-half of the proceeds of the sale.

The defendant moved to bond the property, which was granted on his giving bond in the sum of five hundred dollars, and the property seized was released to him on the execution of the bond as fixed by the court.

The defendant then filed a plea of lis pendens and asked that the suit be dismissed, which was overruled, and then defendant filed a motion to dissolve the writ of sequestration (on which it does not appear that any action was taken) and following, defendant filed an. answer in which the allegations of plaintiff’s petition were denied, and defendant alleged that his father had leased the property from plaintiff with the understanding that plaintiff was to receive one-fourth of the crop, and had delivered the premises to him under like conditions.

On trial, judgment was rendered in favor of plaintiff and against defendant, decreeing the plaintiff to be the owner of one-half of the cotton raised on the premises and maintaining the writ of sequestration, from which judgment defendant appeals.

OPINION

While it does not appear with certainty from the defendant’s brief, whether or not the plea of lis pendens is urged as a cause for reversing the judgment, but, assuming that it is, the defendant further urges that the plaintiff failed to show that she had leased the property to defendant, Andrew Titus, or that the consideration of the lease on behalf of plaintiff was one-half of the crops to be raised, on the premises, and he also urges that the writ of sequestration should have been dissolved.

Considering the record with relation to these grounds:

(1) The plea of lis pendens appears to have been based upon the claim that a suit had been filed by the plaintiff, Mrs. Mary P. Howell, against defendant, Andrew Titus, in the justice of the peace court in, .which the same issue was involved as in the suit filed in the district court and that in the justice of the peace court, judgment had been rendered recognizing the plaintiff as the owner of only one-fourth of the crops. '

The record does not show whether or not the plea of lis pendens was tried and evidence introduced thereon or on admissions of counsel, but it does not appear to have been passed upon by the court until after the trial of the cause on the merits.

It appears from the record that an appeal. was taken by Mrs. Mary E. Howell from the judgment rendered in the justice of the peace court and that the trial of the appeal from the justice of the peace court, which was to be de novo, was consolidated with the trial of the suit brought by Mrs. Howell in the district court.

The appeal taken from the judgment rendered in the justice of the peace court and the law being that the trial of the appeal should be de novo in the district court, necessarily the judgment .to be rendered and enforced would be the judgment of the district court. (R. C. L., Abatement and Revival, Yol. 1, No. 3). And when the order for consolidating the appeal with the suit instituted in the district court was rendered, and trial had under such order, we think that the logical effect was the same as if two suits between the same parties and involving the same issues are filed in the same court and the parties agree to the consolidation of such causes and that in such circumstances the plea of lis pendens could not lie as to one of the suits more than to the other, or if a plea of lis pendens had been filed in one of the suits that it would be waived by the causes being consolidated and trial had without objection being made, which seems to have been the ease in the present instance.

We therefore find that the plea of lis pendens. was properly overruled.

(2) On the merits the question is solely whether or not the plaintiff leased to Andrew Titus and the terms of the lease and it involves purely a question of fact, the determination of which depended entirely upon whether the court believed the witnesses for plaintiff or those for defendant; and as the trial court had the opportunity to observe the witnesses while they were testifying and the question relates solely to their credibility, we think that the judgment could well be affirmed on the general rule that a judgment based purely upon a question of fact will not be disturbed when there is not manifest error.

However, aside from the question of the credibility of the witnesses, we find that the version of the plaintiff as to whom she leased the property, is supported by the greater number of witnesses who were not any more interested in the matter than were the- witnesses of the defendant, and that the claim made by plaintiff for one-half of the crop rather than one-fourth is supported by the usual custom where the lessor furnishes the cropper with farming implements, seed or animals necessary in planting and cultivating the crop, which the evidence shows was the case in the present instance.

(3) As to the sequestration, plaintiff alleged that defendant denied her ownership of one-half interest in the crop and that he was attempting to sell the crops and that she feared that he would conceal, part with or dispose of the same during the pendency of the suit, and the defendant in his answer alleges that he denied her ownership, and the evidence on trial shows that he had disposed of a portion of the crop and that it was in his power to dispose of same, and we are of the opinion that under paragraph eight, Article 275, of the Code of Practice, and Act No. 190 of 1912, the writ of sequestration was properly maintained. (Gueydan vs. T. P. Ranch Co., 156 La. 399, 100 So. 541; Bomer-Ferguson Co. vs. Shapiro, 148 La. 736, 87 So. 729.)

The judgment appealed from is affirmed.


text:
    No. -
    First Circuit
    THOMAS CO. v. BATON ROUGE COAL & TOWING CO.
    (December 6, 1927. Opinion and Decree.)

      {Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 118, 129.
    Where the vendor of lumber erroneously ships black-gum instead of the lumber ordered he is denied the right to collect for it and is charged with all expenses necessary to properly care for the lumber during pendency of suit.
    2. Louisiana Digest — Pleading—Par. 80, 81, 82.
    The petition of defendant demanding reimbursement for storage on lumber to a certain date can be consistently amended, in the furtherance of justice, at any stage of the proceedings, to allow storage for additional time necessary.
    Appeal from the Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by C. H. A. Thomas Company against Baton Rouge Coal & Towing Go-
    There was judgment for defendant and! both plaintiff and defendant appealed.
    Judgment amended and affirmed.
    H. K. Strickland, of Baton Rouge, and M. C. Rownd, of Springfield, attorneys for plaintiff, appellant.
    A. B. Aldrich, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff sued defendant on a balance of account of $1333.91, for lumber purchased by defendant, cash advanced and protest fees on dishonored drafts.

Defendant denied its liability for two cars of lumber charged on the account and also asked for a deduction thereon for freight, unloading, labor, demurrage and storage charges.

The district judge found that the account should be reduced by the sum of $1139.05, and rendered judgment against defendant for a balance of $194.86, from which both parties appeal.

The main contention revolves around the claim for two cars of lumber which was rejected by the court. These two cars were shipped by plaintiff company from its lumber yard in Springfield, La., to defendant’s yard in Baton Rouge. It was bought from plaintiff through Charles Higgins, a representative of defendant. It appears from a preponderance of the evidence that, before it was shipped, the lumber was to be inspected by Higgins and Babin, the inspectors of defendant; and, in fact, the purchase was made subject to mutual inspection, which, it is explained, is a final inspection.

It is not reasonable to believe that defendant would have bought this lumber, unless he had the right to have it inspected before it was shipped, or after it was received at Baton Rouge.

It appears that before the lumber was shipped from Springfield that Higgins struck his knife in some pieces, looked at the pile, and gave it some sort of hasty examination. This was not the character of examination which was required for the shipment of lumber, and which had been observed for other cars shipped from the yard of the plaintiff at Springfield. When the two cars in question reached Baton Rouge, and before they were unloaded, it was discovered that they contained black gum, which defendant contends he never bought from plaintiff. It would serve no useful purpose to make an analysis of the facts by referring to them in detail, to show that, in fact, defendant had never contracted with plaintiff through Higgins, its agent, or otherwise, to purchase any black gum. The evidence sustains this contention of defendant, and is fully supported by the testimony of Werner, manager for defendant, and of other witnesses, who also testified that plaintiff, through its proper officers, had been notified by defendant that it refused to accept these two cars of lumber, which were, with the consent of plaintiff, left in the yard at Baton Rouge to be disposed -of to the best advantage for plaintiff, and from where they had not yet been -removed at the time of the trial. The item for this lumber was therefore correctly ' denied by the court, and was properly credited on the account of the plaintiff. The account was also credited for freight and demurrage on these two cars, which the proof shows defendant company had paid, on the amount recognized by the court; that it had also paid for unloading, inspecting and piling lumber in these cars, for labor furnished plaintiff in 1925, and for storage of these cars for four months, from January 23, 1926, to May 23, 1926. Obviously, these were legitimate charges and which were chargeable to plaintiff, as the lumber in these cars had not been bought by defendant, and was the property of the plaintiff company, which, either through negligence, error or other causes, brought on a situation requiring these expenditures.

It is also shown that the cash plaintiff advanced Higgins was without the consent or authority of defendant and which was also credited on the account, the deduction of that item not being disputed, as we understand, by counsel for plaintiff. We approve the finding of the court in its deduction of the account to the sum of $194.08 for which it rendered judgment for plaintiff.

In its original answer defendant claimed storage in the sum of $10.91 monthly from January 23, 1926, to May 23, 1926, being evidently under the impression, when this answer was filed, that the case would be tried at or about that time or soon thereafter. The case was gone into, and was then postponed to November 30, 1926, when its trial was resumed. On that date defendant filed an amended answer in which it asked for storage from May 23, 1926, the date at which it had limited its storage claim in the first answer, until such time as the case might finally be disposed of. The district court refused to allow the amendment, and ordered it stricken out. In this court defendant is asking to have its rights reserved to claim this additional amount of storage. Counsel for plaintiff assimilates this prayer for reservation to a special plea, which, he contends, can not be filed in this court. It is not of the nature of a plea as characterized by counsel. This demand for an additional amount was not in substance or nature different from, nor was it contrary or inconsistent with the original claim made in the first answer, for storage to the time therein stated. Such amendments have often been allowed during the trial of the case or at any stage of the proceedings in furtherance of justice. Debuys vs. Moliere, 2 M. N. S. 625; Tucker vs. Liles, 4 La. 297; Sevin & Gourdain vs. Caillouet, 30 La. Ann. 528. There is no complaint lodged here because of the refusal of the amendment, and we are not referring thereto with any view of passing over this question. The reference is made to it in support of our conclusion that, under the situation disclosed by the record, the appellate court, in furtherance of justice, has the authority to make the reservation prayed for. The right is therefore reserved defendant to claim such rights as it may have for the additional amount for storage urged in its amended answer. With this reservation the judgment appealed from is affirmed with costs.


text:
    No. -
    First Circuit
    SIMS v. WEST LAWSON, ET AL, Intervenors
    (December 6, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Parties—Par. 17.
    It is not necessary that the vendor of real property be made a party in a suit between his recorded vendee and other parties in order to prove title to the property.
    2. Louisiana Digest — Evidence—Par. 337, 340, 352.
    Two receipts and acknowledgments signed by the vendor in an oral agreement by which the ground is identified and receipt of all of purchase price acknowledged together with corroborating evidence is sufficient to prove sale of immovable property to the vendees and payment therefor.
    3. Louisiana Digest — ¡Evidence—Par. 208.
    Proof of signature is sufficient where the signer does not deny signature but merely contends that receipt was signed by his making his mark whereas his genuine signature was by mechanically writing his name.
    Appeal from the District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Aroe Sims against Robert Vest; A. J. Lawson et al., Intervenors.

      There was judgment for defendant and intervenors and plaintiff appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Clyde C. Ratcliff, of Baton Rouge, attorney for defendant and intervenors, appellee.
   ELLIOTT, J.

Aroe Sims brought a petitory action against Robert West, praying to be recognized as the owner, and as such placed in possession of the lot of ground described in his petition, with the buildings and improvements thereon. In the alternative, and in the event it was held by the court that he and the defendant were joint owners under the title which he adduced for the ground in question, he prayed in that event that a partition of the same be ordered between him and the defendant.

Robert West, for answer, denied that plaintiff had any interest in the property in question. He alleges that the ground had been purchased from R. A. Hart, and under and by virtue of an oral agreement between the plaintiff and defendant and William West and about thirty-five others. That under the agreement a Baptist church was to be organized, by name the Antioch Baptist Church, and when the title was obtained from Mr. Hart, they were to have him convey the ground direct to the church. That the title advanced by the plaintiff had been obtained by him in fraud of said agreement. He prays that the demand of the plaintiff be rejected.

A. J. Lawson and twenty-six others intervened in the suit. They allege themselves to be the members of the voluntary unincorporated association, by name Antioch Baptist Church. That they, as members of said association, are the owners and possessors of the property in question, and joined the defendant in his allegations and in resisting the plaintiffs’ demand. They aver that the property in question was purchased from Mr. Hart by plaintiff and defendant and William West under and by virtue of an agreement between them and intervenors whereby it was agreed that when title to the ground was obtained from Mr. Hart it was to be passed direct from him to the intervenors in behalf of the Antioch Baptist Church when organized.

That said church had been organized and the members thereof had refunded to plaintiff and defendant all that they had expended in buying said property. That they had erected a church building thereon and were in possession of the same as owners. That said Sims had ceased to be a member of the church and had obtained the title in his own name and that of Robert West in fraud of their said arrangement.

They prayed for recognition as owners of the property and permitting them to remain in possession of the same.

There was judgment in favor of the intervenors as prayed for, and the plaintiff appealed.

The plaintiff contends that the intervenors can not be recognized as the owners of the property under the title executed by Mr. Hart, because Mr. Hart is not a party to the suit.

It is true that defendant and intervenors allege and contend as witnesses that under the agreement between plaintiff and defendant and intervenors the title was to be passed from Mr. Hart direct to intervenors, but they do not allege nor does it appear from the evidence that Mr. Hart was a party to that arrangement. An extract from his book showing the account he kept with Aroe Sims and Robert West in regard to the lot in question does not indicate that the church was interested in the matter. The account shows that the lot was paid for in March and April, 1921. It appears that Mr. Hart dealt only with Aroe Sims and Robert West and that he was not a party to any agreement whereby title was to pass from him to the church. Such being the case the title that he made cannot be changed, but nothing prevents Robert West and intervenors from showing by proper evidence that the intervenors are the owners and possessors of all the rights of Aroe Sims in the property in question.

Mr. Hart is not interested in that question and no reason exists why he should be made a party to the suit.

The evidence shows that plaintiff was not present when the title was signed by Mr. Hart, and did not request that it be made in favor of himself and Robert West, therefore he is not guilty of fraud in having it done; but he is guilty of fraud in his effort to take advantage of the fact that he was named as one of the vendees, when he well knew and knows that he has no real interest in the property and that same justly and equitably belongs to intervenors as alleged by them and the defendant.

Of course the ownership of the property by intervenors as members of the Antioch Baptist Church can not be established under the pleadings except by written evidence sufficient for the purpose, but the evidence appears.

It consists of two receipts and acknowledgments in writing signed by Aroe Sims in which he acknowledges that all 'sums expended by him in buying ground, identified by the evidence as the ground in question and the identical lot described in the title from Mr. Hart, had been refunded to him by the members of the Antioch Baptist Church. One of the receipts bears date July 5th, 1924. The other is not dated, but it is evidently earlier in point of execution than the other. These receipts show on their face sufficient identity with the property in question, the one bearing no date, more fully than the one dated, which, in connection with the other evidence received on the subject, shows clearly that plaintiff, a member of the church at the time, accepted the return of all the money he had expended in buying the ground from Mr. Hart for the reason that such was the intention of himself and the defendant and intervenors to get the (property for the church, at the time they entered into a contract with Mr. Hart for the purchase of the same. The ownership of the lot by the membership of Antioch Baptist Church is indicated by the receipts and the evidence explaining how they came to be signed, etc.

Plaintiff signed both the receipts by making his mark, and on the trial he did not deny signing the receipts, but nevertheless, contended that the mark adduced against him was not his genuine signature because he signed his name by writing it. He has learned to write his name mechanically, but the evidence shows that he signed these receipts by making his mark, and that his signature as thereto made and appearing is in both cases genuine and correct. As between plaintiff and defendant and intervenors, these written receipts and acknowledgments sufficiently constitute and establish that intervenors, as members of Antioch Baptist Church, have acquired all the rights, title and interest of Aroe Sims in the property in question. His action must therefore fail. The judgment appealed from is correct.

Judgment affirmed, plaintiff and appellant to pay the cost in both courts.


text:
    Second Circuit
    No. 3144
    HOWELL v. TITUS, ET AL.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Judgment—Par. 178.
    Where two cases on the same subject matter, tried in the justice of the peace court, were consolidated in the district court, a judgment rendered in one case and appeal dismissed in the other determines the rights of the parties regardless of what had been decided by the justice of the peace, the judgment of !the district court governing.
    2. Louisiana Digest — Sequestration — Par. 25, 28.
    In view of Article 280 of the Code of Practice, where property sequestered is bonded and afterward sold, it is not necessary to determine the value of the property at any certain time to determine amount due, but it is the duty of the one who bonded and disposed of the property to account to the owner for proceeds and interest.
    3.Louisiana Digest — Sequestration — Par. 25, 28.
    The surety on a release bond in a sequestration proceeding is liable in solido for the proceeds of the property sold and interest from the date of conversion where such amount is not in excess of the bond.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by Mary F. Howell against Andrew Titus, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Foster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This suit is the sequel to the cause of Mrs. Mary F. Howell versus Andrew Titus, No. 3145, this day decided, in that in this suit plaintiff seeks to recover against Andrew Titus and the surety, E. B. Herndon, Sr., on the bond referred to in the prior cause which was given by Andrew Titus for the release of the property which was sequestered in the former suit.

Plaintiff alleged that Andrew Titus took possession of the one-half interest in the cotton which belonged to plaintiff immediately on the release bond being" given, and that he sold it for seventeen cents per pound, and she prays for judgment in solido against Andrew Titus and E. B. Herndon, Sr., principal and surety.on the bond, in the sum of two hundred and ten and 14-100 dollars, the amount which it is alleged defendant obtained for the property.

The answer of defendant was, in effect, a general denial, followed by a plea of res adjudicata.

The plea of res adjudicata was referred to the merits, and on trial of the cause judgment was rendered in favor of plaintiff and against defendants in solido in the sum of one hundred and eighty-two dollars with legal interest from November 10, 1926, from which judgment defendants appeal.

OPINION

The defendants urge that the judgment should be reversed on the following grounds:

First: That the plea of res adjudicata should have been sustained.

Second: That there was not any evidence offered under which the court could have fixed the value of the property and the liability of defendants under the bond.

(1) The plea of res adjudicata is said to be based upon proceedings had in the district court relative to the judgment rendered in the justice of the peace court which is referred to in the cause of Mrs. Mary F. Howell versus Andrew Titus, being No. 3145 on the docket of this court and No. 41458 on the docket of the district court.

As appears from the opinion in No. 3145, Mrs. Mary F. Howell versus Andrew Titus, Mrs. Mary F. Howell instituted a suit against Andrew Titus in the justice of the peace court and after the trial in the justice of the peace court she took an appeal, suspensive and devolutive, from the judgment, which appeal was filed in the district court under the number 41,494, and on the succeeding day she filed suit against Andrew Titus in the district court, and when the two cases came on for trial they were consolidated under a motion made by counsel in No. 41,458 representing Mrs. Mary F. Howell in suit No. 41,458, which motion reads as follows:

“Now into court comes the plaintiff herein and shows to this honorable court that there is now pending before the First District Court in and for the Parish of Caddo a suit entitled Mrs. Frankie Howell versus Andrew Titus, No. 41,494; that on account of the nature of said suit which presents the same issue as the present Suit, being on the same contract of rent, and which will involve the taking of the same evidence, it should be consolidated with this case.
“Wherefore petitioner prays that suit No. 41,494 * * * be consolidated with this case and that both of said cases he tried together and decided by one single judgment.”

After trial and on December ‘22nd, two judgments were rendered. In the judgment in suit No. 41,458 plaintiff was decreed to be the owner of an undivided one-half interest in the cotton raised by defendant and the writ of sequestration was maintained; and in suit No. 41,494 judgment was rendered dismissing the appeal at appellant’s cost; and the position which appears to be taken by the defendants is that the dismissal of the appeal had the effect of reinstating the judgment of the justice of the peace court which decreed that plaintiff, Mrs. Howell, was entitled to only one-fourth of the crop raised by defendant.

The defendants appear to contend that they cannot be held liable for any greater amount than one-fourth of the value of the cotton, or at least such proportion must be considered as to that portion of the cotton which, was seized under the proceedings had before the justice of the peace.

We have in the opinion rendered in No. 3145 stated, in considering an exception of lis pendens, filed in that action, that the issue presented in the suit filed in the justice of the peace court and in the suit filed in the district court related solely to the question of the proportion of the crop which was to be received by the plaintiff, and such being the case and the causes having been consolidated and tried together, we are of the opinion there could have been but one judgment, and that although there was apparently a judgment in each of the causes the two judgments must be read as one, and the judgment of the court that the plaintiff was the owner of one-half of the cotton being decisive of the issue presented is the decree to which the court properly looked in determining the rights of the parties and the liability of the defendants.

(2) The only evidence offered as to the value of the cotton which was released on bond relates to the value at the time it was released, from which it appears that immediately after the cotton was released the defendant, Andrew Titus, sold it at seventeen cents per pound or a total of three hundred and sixty-four dollars, and one-half of the cotton being the property of the plaintiff, the trial court awarded her judgment for one-half of the amount for which the cotton sold, or one hundred and eighty-two dollars, with legal interest from the date of sale, which the evidence shows was November 10, 1926.

The defendants, and especially E. B. Herndon, Sr., the surety on the bond, contend that the only amount for which he could be held liable was the value' of the cotton on the date the judgment was rendered, that is, on December 22, 1926, without any interest, and that as. the evidence does not fix the value of the property on December 22, 1926, the demands of the plaintiff should have been rejected as of non-suit.

In support of their contention they cite Article 280 of the Code of Practice, which reads:

“The security thus given by the defendant where the property sequestered consists in movables, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore same to the plaintiff.”

And the decision in Segassie vs. Piernas, 26 La. Ann. 742; Baldwin vs. Black, 119 U. S. 643, 30 Law Ed. 530; and John M. Parker vs. E. Martin & Co., 148 La. 791, 88 So. 68.

■ In the first two cases cited, Segassie vs. Piernas and Baldwin vs. Black, the question at issue related to the right to claim as against the principal and surety on the bond for the use of rent of movables during the period such property was held by the principal under the release bond, and in John M. Parker vs. E. Martin & Co. the same question was presented, relating, however, to the right of plaintiff to demand interest from the person who had secured the release of - the property on bond.

In all of the cases cited the writ of sequestration appears to have been issued in order to conserve a privilege asserted against the property sequestered and not to protect a right of property as in the present instance, and while it appears from some expressions in the last cited eas( that the liability of the surety under the bond does not extend further than to restore the property after definitive judgment is rendered ordering the restoration, or to pay the market value of the property at that time, yet in that case the party bonding the property was in fact the owner of the property subject to a privilege in favor of the plaintiff which was granted by law to secure the indebtedness due plaintiff by a third person, which presents an entirely different ‘ situation from that presented in the present instance where the person bonding the property was the owner.

While the law gives to the defendant the right to bond property which has been sequestered in his hands, it does not give him the right to dispose of such property when it belongs to another.

“Where property sequestered is bonded, the delivery of it to the party bonding does not make him the owner and enable him to dispose of it at his pleasure.”

Pagett vs. Curtis, 15 La. Ann. 451.

And when the defendant disposed of property belonging to another he did so at his peril and he cannot claim he was justified in placing himself in a position where he could not comply with the condition of the bond under which he was bound to restore the property after a judgment had been rendered against him decreeing the plaintiff to be the owner of the property.

In some cases it may be material to determine the exact time when the value of the property released should be fixed in order to determine the extent of liability under the bond, that is, whether the amount should be based upon the value of the property at the time of the seizure, the release on the bond, or the date of the definitive judgment, or the time intervening between such dates, but where it appears that the property belonged to the plaintiff and a claim is made only for the proceeds of the property, we do not think it necessary to determine the value of the property at any certain time but that it is sufficient to say that one who disposes of property of another is at least bound to account to the owner for the proceeds, and to pay interest thereon from the time the proceeds came into his hands.

The surety, when he signed the bond, was aware of the fact that the property which was to be released was claimed by another than his principal, and while the surety as well as the principal had the right under the bond to restore the property when the judgment was rendered, each was unable to do so by reason of the principal’s having converted the property to his own use in violation of the condition of the bond, and we think that the surety as well as the principal is liable at least for the proceeds of the property and for interest from the date of conversion, where such amount is not in excess of the amount of the bond. (Albert Pick & Co. vs. Dickinsons, Inc., 154 La. 1068, 98 So. 669; Perret vs. Coleman, 115 La. 814, 40 So. 176.)

We find that the amount of the judgment was properly fixed at one-half of the proceeds received from the sale of the property released under the bond, with interest from the date the proceeds came into the hands of the defendant.

The judgment appealed from is therefore affirmed.


author: MOUTON, J. LECHE, J. ELLIOTT, J. MOUTON, J.

text:
    No. -
    First Circuit
    ROVIRA v. MARTEL
    (June 28, 1927. Opinion and Decree)
    (October 6, 1927. Rehearing Refused)

      (Syllabus by the Editor)
    1. Louisiana Digest — Pleading—Par. 54, 60, 62.
    A plea together with answer of defendant to the right of plaintiff to sue on a past due collateral note which should have been held by- plaintiff until principal obligation matured is not a plea of prematurity but in the nature of exception no right of action filed in time.
    2. Louisiana Digest — Pledges—Par. 26, 29, 32.
    In view of Civil Code Article 1901, Civil Code Article 3170, granting the right to the (pledgee to collect the pledge has application to claims against third persons and does not give the pledgee the right to collect collateral note against pledgor in conflict with express agreement between pledgor and pledgee.
    ON REHEARING
    3. Louisiana Digest — Pledges—Par. 26, 29, 32.
    Under Articles 3136, 3137, 3133 and 3223, of the Civil Code, a pledge follows the condition of the contract it is given to enforce, thereby making it impossible for the pledgee to recover on a past due collateral note before the maturity of the contract of pledge.
    Appeal from the Parish of St. Mary. Hon. J. D. Simon, Judge.
    Action by Edwin J. Rovira against J. Sully Martel.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Borah, Himel, Bloch & Borah, of Franklin, attorneys for plaintiff, appellee.
    Donelson Caffery, of New Orleans, and J. Sully Martel, of Franklin, attorneys for defendant, appellant.
    Leche, J., concurs for written reasons given.
    Elliott, J., dissents for written reasons given.
   MOUTON, J.

Defendant executed his promissory note for $600.00 in favor of plaintiff, May 5, 192'6, made payable August 1st, 1926. For the purpose of securing the payment of that note he gave plaintiff, as collateral security, a mortgage note which matured on its face on May 14, 1926.

Plaintiff brought this suit against defendant on the collateral mortgage note in June, 1926, prior to August 1st, 1926, the date fixed for the maturity of the original obligation.

In his answer defendant raised the issue of prematurity against the enforcement of the demand, which plaintiff contends he waived, claiming that this plea should have been urged in limine. The debt which defendant obligated himself to (pay was represented by the note which became due August 1st, 1926. If -the suit had been brought on that debt the question of prematurity would have been presented, and plaintiff could have been required to bring his action in due time. C. P. 158. This rule does not, however, apply to the suit of the plaintiff which is to enforce a collateral security with which the demand complies as to the maturity of that obligation. The exception urged in the answer of defendant is really one of no right of action. In support of his contention that he could bring this suit on the collateral mortgage note prior to the maturity of the principal obligation, plaintiff relies mainly on Article 3170, Civil Code.

Article 3170 reads:

“Collection of claims pledged. If the credit which has been given in pledge becomes due before it is redeemed by the person pawning it, the creditor, by virtue of the transfer which has been made to him, shall be justified in receiving the amount, and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself, and restore the surplus, should there be any, to the person from whom he held it in pledge.”

The defendant in this case gave his note to plaintiff for $600.00, and made it payable. on August 1st, 1926. The date of payment was unquestionably an important consideration in the contract for defendant, the borrower, also for plaintiff, the lendor. For the borrower it is quite frequently the most important condition for the party who contracts the loan.

A written contract is presumed to express the intention of the parties, and it is the law of the case between them. Ker vs. Everhad, 4 La. Ann. 15, 6 South 566; Succession of Bellande, 42 La. Ann., 7 South. 535; C. C. 1945.

Article C. C. 1901 says: “Agreements legally entered into have the effect of laws on those who have formed them. They can not be revoked, unless by mutual consent or for causes, etc. They must be performed with good faith.” Not only does the Article say that they become a law between the parties, and can not be revoked, unless by mutual consent, but that they must be performed in good faith.

In the instant case the time for the payment of the note, which was fixed for August 1st, 1926, became a law between the parties for the enforcement of the obligation. The agreement as to this time limit could not be revoked except by the mutual consent of the parties. It could not be advanced or extended except in that way. In pledging the mortgage note there is not a single fact or circumstance to indicate that defendant had the slightest intention of changing or advancing the time of payment that had been fixed for August 1st, 1926, in the original note. Under the provisions of Article C. C. 1901, this term of payment could be changed or revoked only by the mutual consent of the parties. It is very evident that plaintiff was willing to a change in the contract which would effect an advancement in the time of payment but it is manifest that defendant never gave his consent to such a modification of the contract. Plaintiff contends that the pledging of the mortgage note gave him the right to proceed against defendant prior to the maturity of the principal note under Article 3170, Civil Code. We. do not believe that the Article was ever intended to provide for a case presenting the issue involved herein. The Article says, the pledgee shall be justified in receiving the amount of the pledged security, “and in taking measures to recover it.” Such measures referred to in that Article, we do not think, were ever intended to authorize the pledgee to enter suit on a collateral security for the enforcement of payment thereon in satisfaction of a debt or note of the pledgor payable at a date posterior to that of the collateral security. As to third parties, there can be no doubt, that the pledgee could sue at the maturity of the collateral security, but in such a case his demand would not come in conflict with the time of payment of the pledgor’s obligation. Let us say, however, that the rule embodied in Article 3170 was intended to apply to a pledgor situated as the present defendant, as well as to third parties. The record is barren of any proof, as we have before stated, to show that the defendant ever consented to change the date of payment of the original note. This time of payment remained the law between the parties under their contract. The mortgage note was undoubtedly handed over to plaintiff to secure the performance of the principal obligation, that is, the payment at the time stipulated. Can it be said, with any show of reason, that the simple delivery of the collateral security which was exigible at an earlier date, could confer on plaintiff the power under that Article of the Code to enforce the auxiliary obligation prior to the maturity of the principal obligation. Such a construction of the law would be investing the accessory with the virtue of modifying the principal contract it was merely intended to secure. In other words, a strained construction of Article 3170 as to pledged credits would be used to defeat a right, not only grounded in equity, but on law under the provisions of Article 1901, Civil Code.

We do not think that the provisions of Article 3170 can be invoked for the purpose stated, and that plaintiff can enforce payment on the collateral note prior to the maturity of the principal obligation.

The judgment appealed from is therefore avoided and reversed; the exception of defendant is maintained and the demand of the plaintiff is dismissed as in case of non-suit, and at his cost in both Courts.

LECHE, J.

Concurring: Plaintiff held two notes of defendant, one as the principal note, and the other as eollatera security for the payment of the principal note. Both notes are subscribed by defendant to his own order and are by him endorsed in blank. The principal note was only due August 1, 1926, while the collateral note became due May 14, 1926. Plaintiff instituted suit against defendant on the collateral note, on June 12, 1926, alleging himself to be the holder and owner-of the same. Afterwards plaintiff instituted another suit on another collateral note. The two suits were decided adversely to defendant and he has appealed. The notes sued on are not in the records of the two cases but such are the facts as we can gather them from the pleadings and briefs of the parties. The two cases were consolidated for argument in this Court, and were submitted at the same time.

The facts as above stated appear to be undisputed, and it seems to be conceded that the sole question involved, and to be decided by this Court, is whether a creditor who holds two notes of his debtor, the one as principal, due at a fixed date, and the other as collateral, due at an earlier date, may enforce payment by suit, of the collateral note before the principal note becomes due.

Plaintiff’s contention is that defendant could only have advanced that defense by a plea of prematurity, which must be filed in limine, and that it was too late when in his answer to the merits in the suit on the collateral note, defendant first pleaded that plaintiff was violating his promise and obligation evidenced by the principal note, wherein payment of the debt was only to be demanded and enforced on August 1, 1926.

The exception of prematurity is dilatory in its nature. Article 332 C. P. defines dilatory exceptions to be such as do not tend to defeat the action, but only to retard its progress. It is not disputed that dilatory exceptions must be filed in limine. C. P. Article 333. Nor is there any doubt that defendant in this case, failed to file such exception in limine. But is the defense offered in defendant’s answer, a plea of prematurity? Is the plea pregnant with the admission that it does not tend to defeat the action? Plaintiff in acquiring the principal note, agreed that he would not demand or enforce payment thereof until August 1, 1926, and in accepting the collateral note also made and subscribed by defendant, was bound to know that he had no right to compel defendant to pay the claim represented by the principal note before August 1, 1926. When defendant gave him the collateral note as security, it is apparent- that it was not for the purpose of hastening the payment of the principal obligation, but to additionally secure its ¡payment. Both notes were secured by mortgage, but on different properties, and plaintiff by accepting the collateral note, was given additional security for the payment of his claim in the shape of another mortgage on other property, and that was the purpose of the pledge of the collateral note. The giving of the collateral note in pledge had the effect of securing the payment of the principal note by another and additional mortgage, but it did not add another or change the original debtor, nor change the maturity of the principal obligation.

Reverting now to the question whether the plea filed by defendant tended to defeat the first action on the collateral note, it is evident that it did, and that it goes to the very foundation of the suit, and is not a plea of prematurity but a plea of estoppel or no right of action, which may be filed at any time, „ and which is preferably tried with the merits. The plea required the taking of evidence and such pleas should be referred to the merits. Succession of Francis, 49 La. Ann. 1740, 22 South. 943; Harvin vs. Blackman, 108 La. 427, 32 South. 452; Dalton vs. Wickliff, 35 La. Ann. 356, 35 South. 355. The trial judge therefore properly permitted the introduction of evidence to sustain this defense.

By Article 3167 of the Civil Code, the pledgee is bound to take the same care of the pledge as if it were his own property, and he is responsible for the loss of the pledge, which may happen through his fault. Where the pledge consists of a credit and that credit becomes due before the pledge is redeemed, Article 3170 says the pledgee shall be justified in receiving the amount and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself, and restore the surplus, should there be any, to the person from whom he held it in pledge.

The language used by the lawmaker in framing these Articles, clearly indicates that the credit mentioned is a claim against some person other than the pledgor, otherwise the last quoted article would be meaningless.

The jurisprudence of this State abounds with decisions holding that the pledgee may sue as owner upon the credit which he holds in pledge, but neither the Code .nor the jurisprudence make it obligatory upon the pledgee to do so. Plaintiff was not obliged to sue upon the collateral note, a,nd when he did sue thereon nearly two months before the maturity of the principal note, he violated the agreement evidenced by the terms of the principal note whereby defendant had the right to retain the amount called for therein, until August • 1, 1926, when it became due.

The defense tendered by defendant should have been sustained and plaintiff’s suit on the collateral note No. 16,381 of the dockets of the District Court, should have been dismissed without ¡prejudice as in case of non-suit,

For' these reasons, I hereby concur.

DISSENTING OPINION OF

ELLIOTT, J.

“Every negotiable instrument is payable at the time fixed therein, without grace.” Act 64 of 1904, Section 85 (Amd. 89 of 1926). Therefore, while it was not obligatory on the part of the plaintiff, as pledgee, under the law Civil Code Article 3170, to sue on the note received from the defendant as collateral security at its maturity, he had a legal right to do so. And if there had been loss due to his failure to do so in this case, the pledgor would have expected him to make good the loss.

A similar contention was considered and decided in Fidelity & Deposit Co. vs. Johnson, 117 La. 880, 42 South. 357. Clause 10 of the syllabus disposes of it as follows:

“In a suit the demand not being founded on the principal obligation; but on the pledged collateral, the fact that the principal obligation is immature or contingent is immaterial.” ' :

The pledgor’s conclusion in this case that the pledgee, by accepting a collateral, which matured before the principal obligation did, tacitly postponed the maturity of the collateral to meet the maturity of the principal note, can not take áway rights conferred by the law, when there was no agreement to wait and there was none. As there was no agreement to wait, there was nope violated.

It is, therefore, error in my opinion to dismiss plaintiff’s suit on the collateral; but defendant should be protected by reservations in the judgment rendered thereon.

ON APPLICATION FOR REHEARING

MOUTON, J.

Defendant _ executed his note in favor of plaintiff for $600.00, dated April 15th, 1926, payable on or before August 1st, 1926. To secure the payment of that note he delivered to plaintiff his collateral mortgage note dated May 14, 1925, due May 14, 1926.

Plaintiff sued defendant on the collateral security prior to the maturity of the principal or original obligation. Defendant, in his answer, contends, that plaintiff could not sue on the collateral before the first note had matured. We held, in the original opinion, that this defense raised the issue as to the right of action of plaintiff to sue, and was not a plea of prematurity.

When defendant executed his original note, the right of action of the plaintiff sprung immediately into existence, but the right to sue thereon was suspended until August 1st, 1926, when that note matured. If the suit had been brought on that note, which was the principal obligation of the defendant, an exception that it was instituted before the debt became due, would have been one of prematurity, entailing its dismissal under the ¡provisions of Article 158 C. P. The suit was not brought on the principal obligation, but was instituted on the mortgage note for the payment of the collateral mortgage, but prior to the maturity of Jhe principal obligation. Obviously this collateral mortgage was given by defendant as an auxiliary obligation for the enforcement of the principal obligation. C. C. 3136. It could not have the effect of changing the conditions of the main obligation. On the contrary, it must be held that it followed or conformed to those conditions. C. C. 3137. Such being the legal situation, the right to sue on the collateral could spring into existence only when the original became due. As it could not arise until then, the suit on thé collateral having been instituted prior thereto, at that time plaintiff had no right of action at all on the collateral security. Evidently as the collateral was due when suit was instituted no exception of prematurity could be filed against it. It is, therefore, apparent tuat the exception of defendant urged in his answer, was to the effect that ¡plaintiff had no right of action whatsoever to enforce collection on the collateral, independently of a demand on the original note. It seems to us that it is inconceivable that defendant in giving plaintiff the collateral mortgage in pledge intended to change the date of payment of the original note, thus to allow plaintiff to. sue on the collateral at its maturity, and if the proceeds realized were insufficient, to again permit plaintiff to sue on the original note for the payment of whatever balance might remain due thereunder.

In his brief accompanying his application for a rehearing, plaintiff says, and correctly, that: “A written contract is presumed to express the intention of the parties, and it is the law of the case between the parties;” “that the intention is to be , determined by the words of the contract when these are clear and explicit.” Further, counsel says: “When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision which the parties had no right to modify or renounce.” No one will dispute the correctness of the foregoing propositions of law stated by counsel for plaintiff. Let us apply those principles to the ease at bar. In the original note, which formed the contract between the parties defendant obligated himself to pay to plaintiff $600.00 on August 1st, 1926. This agreement embodied the obligation on the part of defendant, to pay said amount to plaintiff, but at the maturity of the note. The words of the contract are clear and explicit, and the agreement made the payment legally ex-igible at the time stipulated, and became the law between the parties.

C. C. Article 1901 says: “Agreements legally entered into have the effect of laws on those who have formed them. They can not be revoked unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed, in good faith.” It is not disputed that the agreement which is evidenced by the note was lawfully entered into, and had the effect of a law between plaintiff and defendant. Under the provisions of that Article ef the Code, it is indisputable that ithe agreement as to the date or time stipulated on the note for its payment could not be changed or revoked, except by the “mutual consent” of the parties thereto. It was clearly the intention of the parties that the note was to be paid at the time fixed for its maturity, when it would become exigible. There is nothing in our original opinion to suggest in the least that we attempted to resort to usage or equity for the purr pose of restraining or enlarging the intent of the parties expressed in the note, as seems to be indicated by counsel in his brief for a rehearing. We grounded ourselves in that opinion on the provisions of Article 1901 of the Civil Code, which pointedly declares that agreements legally entered into, as this one was, constitute the law between the parties, cannot be revoked except by their “mutual consent” and must be performed in good faith. The collateral mortgage note was given in pledge to plaintiff. C. C. Article 3136 reads as follows: “Every lawful obligation may be em forced by the auxiliary obligation of pledge.” Article 3137 reads: “If the principal condition be conditional, that of the pledge is conformed or extinguished with it.” It seems clear that the pledge follows the conditions of the contract it is given to enforce, and as said in Article 3133, it is a contract by which a debtor gives something to his creditor as a security for his debt. It appears quite clear to us that defendant gave the collateral mortgage note as an auxiliary obligation, to secure the debt, and to enforce the original note or principal obligation, as provided for in Articles C. C. 3136, 3223. If it was delivered to plaintiff as an auxiliary to. enforce the main note, as it doubtless was, it is manifest that defendant had no intention when the collateral was so pledged, to Change or revoke the date, that is August 1st-, 1926, at which time the original note matured according to its clear ‘and explicit terms. It is not believable that when' he pledged this collateral he intended to confer on plaintiff the right to sue thereon for a collection of his original debt prior to its maturity. It may be that it was acceptable to plaintiff to advance the collection on the collateral security, but the transaction repels the idea that by “mutual consent” defendant had the least desire to give the authority to plaintiff to sue on the collateral for the collection of his debt, prior to the maturity of the original note. As it is evident that defendant never intended to change the date of the payment of his debt as originally fixed, plaintiff had no right to sue on the collateral security before the maturity of the note the auxiliary obligation was given to enforce. To hold that he could, would be in violation of the plain provision of Article C. C. 1901, which in its concluding part says, that agreements between parties which is a law unto them, “must be performed in good faith”.

Counsel refers us confidently to Hollingsworth vs. Ratcliff, 162 La. 281; 110 South. 422, in - contending that if defendant intended, when he delivered the collateral to make its terms of payment conform to the date of payment of the. original note, that in endorsing it, he • should have extended the -payment' thereof to August 1st, 1926, the term of maturity of the original note. In the casé cited, the Court said that the extended payment entered on -the note by the maker had the effect of preserving its negotiability, although: the date of its maturity; had passed. . When defendant. delivered the collateral, there is ■ no proof to show that it was past due, and had to be endorsed to preserve its negotiability, and which defendant was not called upon to do in order to preserve the negotiability of the note as against himself. The principle announced in the case above cited does not apply to this case.

The term of payment in the original note was fixed by virtue of a contract which is founded on a natural right, and which is recognized by positive law under the provisions of Article 1901 Civil Code. The right given the pledgee creditor to sue on a collateral security is the result of an arbitrary enactment. If there arises any conflict on the application of these two Articles of the Civil Code in determining the rights of the parties in a case of this character, it seems to us the provisions of Article 3170, giving to the creditor the right to sue on the pledged note should yield to Article 1901, which is founded on equity and justice. As we have, however, stated originally, we are of the opinion, that the right to proceed on a collateral by the pledgee applies to cases where third (parties are affected, but not to a case like the one at bar, where the debtor has given to his creditor a collateral in pledge to secure his debt, which is an auxiliary to enforce the main obligation.

For the foregoing reasons the rehearing is refused.


text:
    No. 16,381
    First Circuit
    ROVIRA v. MARTEL
    (June 28, 1927. Opinion and Decree.)
    (October 6, 1927. Rehearing Refused)

      (Syllabus by the Editor)

    ■ (See "companion case of Rovira vs. J. Sully-Martel on page-240.)

      Appeal from the Parish of St. Mary. Hon. James E. Simon, Judge.
    Action by Edwin J. Rovira against J. Sully Martel.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Borah, Himel, Bloch & Borah, of Franklin, attorneys for plaintiff, appellee.
    Donelson Caffery, of New Orleans, and J. Sully Martel, of Franklin, attorneys for defendant, appellant.
   MOUTON, J.

In this case, for the

reasons assigned in the companion case •decided this date, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that it be dismissed at plaintiff’s cost as in case of non-suit.


author: REYNOLDS, J.

text:
    No. 3081
    Second Circuit
    MITCHELL MOTOR CO. v. MAXEY
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Citation and Appearance — Par. 6.
    Where the petition served on defendant described the plaintiff as “E. L. Mitchell, sole proprietor and owner of the Mitchell Motor Company,” the latter being a mere name under which the former conducted business, and the citation served on defendant described the plaintiff as “Mitchell Motor Company,” the petition supplements the citation and the omission from the latter of the words “E. L. Mitchell, sole proprietor and owner of the” immediately preceding the words “Mitchell Motor Company” will not render the citation invalid.
    Sentille vs. M. L. & T. R. R.' & S. S. Co., 9 Orleans App. 15.
    2. Louisiana Digest — Sales—Par. 10.
    One who buys a motor truck from a seller who was not the owner thereof and not authorized to sell it acquires no title thereto notwithstanding the seller had possession and represented himself to be the owner and the buyer acted in good faith.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Mitchell Motor Company against Forest Maxey.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. G. Fields, of Farmerville, attorney for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendant, appellant.
    STATEMENT OF THE CASE
    This is a suit to recover possession and be decreed owner of a motor truck. Under appropriate averments a writ of sequestration was issued and the truck sequestered.
    Defendant excepted to the sufficiency of the citation, alleging that the petition described the plaintiff as “E. L. Mitchell, sole proprietor and owner of the Mitchell Motor Company,” whereas the citation described the plaintiff as “Mitchell Motor Company” only.
    The exception was overruled. Whereupon, defendant, after reserving his rights under the exception, answered that he acquired possession and ownership of the truck from one Benton Anderson, giving him therefor another automobile and $35.00; that plaintiff had put the truck into the possession of Benton Anderson for the purpose of trading it to him or some other person; that he made the trade with Benton Anderson in good faith; and that plaintiff was estopped to repudiate the action of his agent. And he reconvened for damages as for an illegal sequestration.
   REYNOLDS, J.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant and sustaining the writ of sequestration and defendant appealed.

OPINION ON THE SUFFICIENCY OF CITATION

The alleged insufficiency of the citation is in the fact that whereas in the petition served on defendant along with the citation the plaintiff is described as “E. L. Mitchell, sole proprietor and owner of the Mitchell Motor Company” in the citation itself he is described only as “Mitchell Motor Company”.

Code of Practice, Article 179, Paragraph 1, prescribes that the citation must give the title of the cause but does not say what the title shall consist of. Obviously, where there are many plaintiffs or many defendants, all of them could not conveniently be included in the title; so that the title is usually what the plaintiff or clerk of court makes it, and any discrepancy between it and the petition is supplied by the latter which supplements it.

We think the exception was properly overruled.

Sentilles vs. M. L. & T. R. R. & S. S. Co., 9 Or. App. 15.

ON THE MERITS

Defendant alleges that he purchased the truck in good faith from one into whose possession plaintiff had put it with authority to sell, but his evidence is that he traded for the automobile in the belief that the person who had it owned it.

He was asked (Evidence, page 40):

“Did you have any notice or suspicion at the time you traded (for) the truck that it would ever be claimed by Mr. Mitchell or anybody else?”

And he answered:

“No, sir; I thought it was Benton’s truck.”

And, again, on page 42 of the evidence.

“Q. And as a matter of fact he told you that it was his car?
“A. He told me that all the time.
“Q. Didn’t you know that it was not his car?
“A. No, sir.”

Under this evidence, all other evidence in the case tending to show that Benton Anderson was plaintiff’s agent and authorized to sell the car, becomes irrelevant for the reason that defendant acquired the car not in the belief that he was dealing with an authorized agent of plaintiff but that Benton Anderson himself was the owner of it.

In addition to this, the evidence shows that Benton Anderson was a minor and lived in the neighborhood of defendant’s residence and was not a dealer in automobiles to the knowledge of defendant and this should have aroused.his suspicion as to Benton Anderson’s right to sell the truck; and that it was aroused appears from the testimony 'of several witnesses.

Plaintiff testified (Evidence, pages 11 and 12):

“Q. You don’t think for a minute that he would have traded for this truck if he had known that Mr. Anderson was not authorized to trade it? Would you?
“A. Well, I should not; I could not answer that question in any other way only as I think he would, because he admitted to my men that he suspected that this boy didn’t own the truck.
“Q. Did he do that in your presence?
“A. He admitted that he figured that there was something suspicious.”

Monroe White testified (Evidence, pages 30 and 31):

“Q. On that trip, did you hear Mr. Maxey say anything about his having suspected something wrong?
“A. Yes, Sir.
“Q. What did he say?
“A. He said he suspected something about the dealer license on it.”

Mr. Anderson, father of Benton Anderson, testified (Evidence, page 23);

“Q. Did Mr. Maxey tell you whether or not the boy told him that he had bought the car from Bernice Motor Company or any other motor company?
“A. He told me the boy traded a Chevrolet roadster for this truck to the Bernice Motor Company.
“Q. Did he tell you that he suspected that there was something wrong?
“A. Yes, sir; he said he suspected there was something wrong.”

It is clear from this testimony that defendant’s suspicion was aroused as to Benton Anderson’s right to dispose of the truck, and, therefore, his only right to the automobile is his purchase of it from one who did not own it, which purchase gave him no title or right to it.

The District Judge, who heard and saw the witnesses testify, gave the plaintiff judgment. We think the judgment is correct, and accordingly it is affirmed.