text:
    No. 10,195
    Orleans
    SOUTHERN SECURITIES CO v. IRWIN LANDAU, ET AL.
    (May 6, 1928. Opinion and Decree.)
    (June 4, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes — Par. 127, 138, 139.
    The obligation assumed by the purchaser and mortgagor to insure the property mortgaged in favor of the vendor or of the holder of the notes does not •make it the duty of the holder of the notes to insure as a se'curity for the maker of the notes and the endorsers thereon unless specially and clearly made his duty.
    2. Louisiana Digest — Bills and Notes — Par. 194; Mortgages — Par. 141.
    But if the holder of the notes does insure and a loss occurs which the insurance company refuses to pay, the holder is not bound to sue the insurance company before having recourse against the maker and endorsers.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Southern Securities Co. against Irwin Landau et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    John C. Hollingsworth, of New Orleans, attorney for plaintiff, appellant.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit on four promissory notes.

The plaintiff alleged that by act of F. A. Miller, notary, dated July 14, 1923, the Southern Motor Car Company sold to Irwin Landau an automobile for the price of $1647.78, of which $495 was paid cash, and for the balance the said purchaser, Irwin Landau, made twelve promissory notes of $50 each, six of which were payable on the 13th day of each of August, September, October, November and December, 1923, and January 13, 1924, and six of $142.13 were -payable on the 13th day of each of February, March, April, May, June and July, 1924, each made payable to the order of and endorsed by the maker with eight per cent per annum interest from maturity until paid and paraphed “Ne Varietur” by the Notary for identification with the act of sale; that in order to secure the payment of said notes the purchaser mortgaged the above .automobile in favor of any future holder of said notes; that the plaintiff is the holder and owner of four of said notes, acquired before maturity for a valuable consideration, maturing on the 13th of April, May, June and July, 1923; that Dr. George F. Roeling, F. R. Gomilla and the Southern Motor Car Company are endorsers of said notes. Plaintiff prayed for judgment against the maker and endorser of said notes in solido for $568.52, with interest and attorney’s fees; and vendor’s privilege upon the automobile.

All four defendants answered. They admitted that plaintiff was the owner of the notes sued on and that it had acquired them before maturity; but they averred that the consideration of said notes had failed; that the plaintiff was engaged in the business of financing the purchase of automobiles and discounting automobile paper; that at the time said Irwin Landau bought the automobile above mentioned from the Southern Motor Car Co., the plaintiff discounted the notes sued upon; that in the calculation of the amount and the consideration paid for the said notes by plaintiff there was included a charge for fire and theft insurance which was to be taken out by the plaintiff herein, and in the event of loss occasioned by fire or theft, the plaintiff agreed that in case of damage or loss by fire or theft, the sum recovered from the insurance company was to be first applied against the purchaser’s obligation and the balance forwarded to him at once; that in the pamphlet circulated by plaintiff covering the method of financing automobiles, the clause quoted covering insurance against fire and theft, is specifically included, and the further statement is made that the “rates include the cost of fire and theft insurance for 75 per cent of the cash selling price for the period of one year”; that the amount of insurance taken out by plaintiff was $1196, and “that this insurance was in full force and effect on the day that this automobile financed by the plaintiff was destroyed by fire”; that on March 8, 1924, the automobile herein was destroyed by fire, and that notice of such destruction was given to plaintiff and demand made for reimbursement by plaintiff to defendants of the amounts paid by them; defendants further averred that having paid to plaintiff the notes maturing prior to those sued on, it was the duty and obligation of plaintiff to effect a proper insurance and to collect the insurance and to apply it to the amount due to plaintiff on the unpaid notes and to th'e amount of the notes already paid by defendants; that it was not in their power to. collect said insurance as all the papers relating thereto were in the possession of the plaintiff; “that. it was the duty of the plaintiff herein, under its agreement as shown above, to have effected such insurance and to have collected the insurance so effected upon having been informed of the loss by fire of this particular automobile.”

Assuming the character of plaintiff in reconvention the defendants alleged that the series of notes furnished by Landau and “endorsed by your other respondents” amounted to $1152.78; that Landau paid the first note of $50 and the other defendants, Gomilla and Roeling, paid the others to the amount of $534.26; that by reason of the failure on the part of plaintiff to effect the proper insurance for which payment was made by defendants, and which was a part of the consideration for which the notes were given, the four notes herein sued on have become extinguished and defendants are entitled to recover from the plaintiff the amount paid by them, say $584.26.

The defendants prayed for judgment annulling the four notes sued on, and fox-judgment in their favor for $584.26.

There was judgment in favor of the defendants rejecting plaintiff’s demand, and in favor of the defendants except Landau, on their reconventional demand against the plaintiff for $534.26.

The plaintiff has appealed.

The defense to this suit is based upon the following proposition contained in the last paragraph of defendants’ answer, viz: “that it was the duty of the plaintiff herein under its agreement as shown above to have effected such insurance and to have collected the insurance so effected upon having been infox-med of the loss by fire of this particular automobile” and to have distributed the proceeds in the manner set forth in the answer”.

The plaintiff was not a party to the act of sale and mortgage, therefore, all references to insurance in that document do not bind it. All obligations, however, concerning the duty of insurance of every kind were imposed upon the purchaser and mortgagor, Landau, and not upon the holder of the notes, plaintiff herein, who was not a party to said act of sale. This remark applies to the following words contained in the act of sale:

“This sale is made for and in consideration of the following terms and conditions:
List price ______________________________________________ $1495.00
Southern charge, cash price ____________ 152.78
This charge includes fire, theft and transportation insurance for 1 year
$1647.78

The automobile was sold to Landau by the Southern Motor Car Company, a partnership composed of Drs. Roeling and Gomilla, two of the defendants herein, and the notes furnished by Landau were endorsed by them and purchased from them by the plaintiff.

The obligation to insure contained in the act of sale and mortgage was the usual stipulation by the purchaser and mortgagor as contained in all acts of mortgage as follows:

“The said ‘mortgagor’ hereby agrees and binds himself to keep the said property above described constantly insured against risk of loss by fire and theft, with acceptable insurance companies, to an amount not less than the sum of the notes herein described until the full and final payment of said promissory notes and the satisfaction of all obligations herein undertaken, the policies of insurance to contain a clause that in the event of loss, if any, payment shall be made to the mortgagee or to its endorsers, as its or their interest may appear, and to transfer and deliver unto the said mortgagee the policy or policies of such insurance, the mortgagor consenting and agreeing that the said mortgagee shall have the right to transfer said policy or policies to any future holder or holders of said notes and that in case of failure of said ‘mortgagor’ to effect such insurance within five days of the date hereof, all of the notes remaining unpaid shall at once become due and exigible. The mortgagee, however, reserves the right at its own option, in case of the failure of said .‘mortgagor’ to effect such insurance, to itself have the policy herein mortgaged insured and the reimbursement of all sums paid for that purpose to an extent not exceeding the sum loaned and at a premium rate of not more than five dollars per hundred shall he secured by the privilege and mortgage aforesaid.”

But the defendants contend that the consideration of their endorsement was the obligation .to insure assumed by the plaintiff in accordance with a circular issued by it. The following is the clause upon which the defendants rely:

“The rates include the cost of fire and theft insurance for 75 per cent of the cash selling price for the period of one year. In case of damage or loss by fire or theft, the sum recovered from the insurance company is first applied against the purchaser’s obligation and the balance forwarded to him at once.”

But as a matter of fact although not bound to do so the plaintiff did insure the automobile as alleged by defendants in the name of the owner, “Irwin Landau, loss if any payable to Southern Securities Company as their interest may appear,” and after the automobile was destroyed by fire, in March, 1924, the plaintiff did exert itself to collect the loss, demanded payment from the insurance company which refused to pay on the ground that Landau had ceased to be the owner of the automobile and had transferred it to the Southern Motor Car Company, the defendants in this case. In support of his defense there is in the record an affidavit of Plenry Weis'er, who declared that he is the . duly authorized representative of the Southern Motor Car Co., that his company sold to Landau a motor car for $1495; that he receives the said motor in full acquittance and discharge of all debts and obligations arising out of the purchase of said car and particularly the outstanding notes, eleven in number, amounting to the sum of $1102.78, and that in the event said car is sold by either party to this affidavit in excess of $1152 that the surplus shall be given to said Landau who returned the said car. This affidavit is signed by Landau and by Southern Motor Car Co., by H. Weiser.

The authority of Weiser to sign that document was denied by Dr. Roeling.

Weiser was only the general manager of the sales department and was their salesman.

He got possession of the car, and, to the knowledge of defendants, was attempting to sell it for account of the parties in interest and was to “credit Landau’s account” with the proceeds of sale. Dr. Roeling knew that if the car sold for less than what Landau owed on the notes that he and Dr. Gomilla would be liable for the difference; no one of the defendants ever attempted to bring suit against the Union Insurance Company.

David J. Maddox, member of the partnership of plaintiff company, testified that they had made efforts to collect the insurance, but that they had collected none, and failing to collect, filed this suit.

Harry J. Boyle was the adjuster for the Union Insurance Company, he investigated the claim of Irwin Landau concerning his car destroyed by fire; Landau told him that he turned the car over to Weiser in consideration of a full discharge of all indebtedness due on the car; he did not own the car"; after the statement made by Landau, the Union Insurance Society denied liability according to the following letter dated April 8, 1924:

“Mr. Irwin Landau and (or) Southern Securities Company.
“Gentlemen:
“This office has been instructed by the Company to deny any and all liability under the above policy because of material violations of the policy contract. Reserving all rights o'f the company under the policy contract, we are,
Yours very truly,
“Mr. Bryde, Bourne and Kennedy.”

The insurance company had paid nothing to anybody on account of this loss; witness discussed the matter with Maddox and advised him that they were going to deny liability of his claim; Maddox tried to collect the insurance, but witness • would not pay him anything; if at the time of the fire Landau was not the sole unconditional owner of the car it would avoid the policy. Landau said he was not, hence the denial of liability of the insurance company; the company is not liable even to the mortgagee with the loss payable clause; the mortgagee has to prove his loss; if the loss is secured then the insurance company does not pay until the mortgagee has exhausted his recourse against the endorsers; the insurance company under the mortgage clause is nothing but a purchaser of notes they might buy from Maddox; they don’t admit any liability; the Southern Securities Company made a claim on the insurance company which told them there was no liability.

Dr. Maddox testified that no one of the defendants ever called on him to deliver to them the insurance policy so that they might sue upon it; the insurance company told him that they were not liable on this claim.

Counsel for the defendants introduced in evidence two letters of the plaintiff to the Southern Motor Car Co. for the purpose of showing that the plaintiffs “actually made demands and sought to collect the insurance from the insurance company.”

The policy contained the following clause:

“This insurance, as to the interest of the mortgagee only therein shall not be invalidated by any change in the title or ownership of the property, provided that the mortgagee shall notify this Company of any change of ownership * * * which shall come to the knowledge of said mortgagee * * * otherwise this policy shall be null and void.”

But if the notes included a charge for fire insurance the defendants could not have acquired a right to an insurance from the plaintiff until they had paid the notes.

Even if the plaintiffs were obligated to insure the car, we have seen that they had complied with that obligation. After the loss they made reasonable amicable demands from the insurance company for payment.

The company denied liability and refused to pay. Plaintiffs could not be required to do more. They could not be required, as a condition precedent, to sue these defendants, and to involve themselves in a long and expensive litigation to determine the liability of the insurance company. The defendants were the sureties of Landau by their endorsement of his note. Union Nat’l Bank of N. O. vs. Grant, 48 La. Ann. 21, 18 So. 705.

It has been decided that the surety cannot require the creditor before resorting to him to sue the principal debtor; his remedy is to pay the debt and exercise the creditor’s rights against the debtor to which he is subrogated or to proceed under C. C. 3057 (3026), C. G. 3061 (3030), 2 H. D. 1536; No. 4 S. 2; No. 1, 3 La. Ann. 674; Elmore vs. Robinson et al., 18 La. Ann. 651; Hill & Co. vs. Vourcier et al., 29 La. Ann. 844.

The surety is not discharged by the lessor’s mere omission to enforce or preserve his privilege; it is enough if he do not act to impair it, or to prevent him at any moment from subrogating the surety to his rights, 2 H. D. 1540, No. 5; Pharr vs. McHugh, et al., 32 La. Ann. 1280.

Where the surety of a defaulting and absconding bank clerk required the bank to take legal steps against him the court denied that defense and stated, 3 La. Ann. 680:

“Under the Roman Law it seems that the refusal of the creditor to sue upon the request of the surety would not operate the surety’s discharge * * * it was .his (the surety’s) duty if he desired to avail himself of them, to pay and take the weapons of the law into his own hands.” Quoting Boutte vs. Martin, et al., 16 La. 136, and State vs. N. O. & Carrollton R. R. Co., 4 Rob. 420; also Parker vs. Alexander, et al., 2 La. Ann. 188.

In Boutte vs. Martin, 16 La. 133, the Court said:

“The defense of the appellant was that the plaintiff had neglected to sue the principal on the note, although earnestly urged to do so; and that he had indulged him with a prolongation of the day of payment. The first plea was correctly disregarded. It is an idle one. The creditor generally requires security to avoid suing the debtor, and the surety cannot require, before the creditor resorts to him for payment, that he should sue the principal. If he wished the principal to be sued, he must pay the debt, and then exercise the rights of the creditor to which payment subrogates him, or proceed according to the Article 3026 of the Louisiana Code, to be indemnified by the principal debtor.”

It is therefore ordered that the judgment herein rejecting plaintiffs’ demand and dismissing its suit be reversed and set aside; and it is now ordered that the defendants herein, Irwin Landau, ’the Southern Motor Car Company, Dr. George F. Roeling, and Dr. Frank R. Gomilla, be condemned, in solido, to pay to the plaintiff herein, the Southern Securities Company, the sum of Five hundred sixty-eight and 52-100 dollars with eight per cent per annum interest from April 13, 1924, until paid and fifteen per cent attorney’s fees upon said sum in principal and interest, and all costs of suit, with vendor’s privilege upon the automobile mentioned in the petition herein.

It is further ordered that the judgment in favor of said Dr. George F. Roeling and Frank R. Gomilla, plaintiffs in reconvention, be reversed and set aside, and their demands rejected at their costs.

It is further ordered that the reconventional demand of Irwin Landau be rejected and dismissed at his cost.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No.-
    First Circuit
    AMERICAN SNUFF CO., INC., v. VERNON GROCERY CO., INC., ET ALS.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Corporations—Par. 44, 46, 117.
    Under Act 267 of 1914 a creditor can not sue a stock subscriber for payment of an unpaid subscription until he first obtains a judgment against the corporation, and execution thereon is returned unsatisfied in whole or in part.
    Appeal from the Parish of Vernon, Hon. Hal A. Burgess, Judge.
    Action by American Snuff Company, Inc., against Vernon Grocery Company, Inc., et als.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    S. I. Foster, of Leesville, attorney for plaintiff, appellee.
    L. D. Woolsey, and Ferguson and Newman, of Leesville, attorneys for defendants, appellants.
   ELLIOTT, J.

American Snuff Co., Inc., advanced to Vernon Grocery Co., Inc., credit to the extent of $349.77. The Vernon Grocery Co., Inc., is a corporation with G. A. Terrell, W. L. Stanton, R. A. Dailey, Glenn Packer and C. J. Davis, as incorporators and subscribers for its stock. The plaintiff alleges that the Vernon Grocery Co., Inc., is totally insolvent; that none of its stock subscribers have paid their stock subscriptions except C. J. Davis; that its members are about to dissolve it without paying its debts. That its officers and directors have failed and refused and do not intend to compel the members to pay who have- not paid. That the said amount due the corporation by the subscribers for its stock is its sole asset, etc.

The plaintiff sues Vernon Grocery Co., Inc., and G. A. Terrell, W. L. Stanton, Glenn Packer and R. L. Dailey and prays for judgment against them in solido for the amount due it on said account.

The defendants Stanton, Dailey and Packer appeared and excepted to plaintiff’s petition on the ground that it did not set forth a right or cause of action against them.

The exception was by the Court referred to the merits without prejudice, the ex-ceptors objecting, etc.

Stanton, Dailey, Packer and Davis then appeared, and for answer denied the indebtedness alleged against them.

The defendant Packer further alleged that he was a minor at the time he signed the charter and urged his minority at that time as a reason why he should not be held.

Defendant Davis further alleged that he had paid his stock subscription and could not be made to pay any more under the law.

Testimony was’ taken. The record also contains a statement of facts. The testimony and the statement of facts show that the defendant Vernon Grocery Co., Inc., was duly incorporated and received a charter from the Secretary of State authorizing it to do business. Some of the defendants contend that they gave notice to G. A. Terrell, President, that they would not pay their stock subscription nor have further to do with the corporation, but that makes no difference as far as the plaintiff is concerned. Insurance Co. vs. Walle, 105 La. 89.

The plaintiff is a creditor as alleged, and Glenn Packer was a minor at the time he signed the charter, and C. G. Davis has paid his stock subscription in full. The District Judge discharged Packer and Davis from the case. Vernon Grocery Co. and G. A. Terrell did not appear, and a judgment by default was confirmed against them. Judgment was rendered against Stanton and Dailey on answer filed and after hearing, condemning them in solidó with Vernon Grocery Co., Inc., and G. A. Terrell for the amount due the plaintiff.

Stanton and Dailey have appealed and urge on their appeal their exception of no right of action, contending that none exists, because plaintiff does not allege that it obtained judgment against Vernon Grocery Co., Inc., and that execution issued thereon was returned not satisfied in whole or in part, as provided by Sec. 13 of Act 207 of 1914.

Plaintiff’s action, previous to the enactment of Act 267 of 1914 could have been maintained, but since then, a creditor can not sue a stock subscriber on account of an unpaid subscription until he first obtains a judgment against the corporation, and execution thereon is returned unsatisfied in whole or in part. State ex rel. McWilliams vs. Atchafalaya Teche Vermilion Co., 155 La. 882, 99 So. 633; Bank of Kaplan vs. Richard, 185 La. —, 115 So. 815; Rapides Grocery Co. vs. Grant, 165 La. —, 115 So. 791.

The judgment appealed from is therefore erroneous and must be annulled, avoided and set aside as to W. L. Stanton and R. A. Dailey.

The judgment appealed from herein is annulled, avoided and set aside as to W. L. Stanton and R. A. Dailey. The exception of no right of action filed by them herein is sustained and the plaintiff’s suit is dismissed without prejudice to its right to bring another suit against said Stanton and said Dailey and claim judgment against them in solido for the amount of its said account, as soon as it has obtained judgment against Vernon Grocery Co., Inc., and execution has been returned thereon unsatisfied in whole or in part. Plaintiff and appellee to pay the costs in both courts.


author: CLAIBORNE, J.

text:
    No. 10,252
    Orleans
    GUZMAN v. LAMOTHE
    (June 4, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription—.Par. 78, 109; Landlord and Tenant — Par. 69.
    An action by a tenant against his landlord for damages resulting from a defective ceiling is prescribed by one year.
    2. Louisiana Digest — Attachment—Par. 15, 16.
    An attachment does not lie against a citizen who absents himself from the State temporarily on business or pleasure.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Carmelite Guzman against Frank Lamothe.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    M. C. Scharff, of New Orleans, attorney for plaintiff, appellant.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for a quasi-offense.

The plea of prescription of one year was maintained and plaintiff’s suit was dismissed. She has appealed.

The plaintiff alleged that her husband, Arthur Guzman, leased the premises No. 933 Burgundy Street from the defendant, Frank Lamothe, and that on July 8, 1924, and for nearly two years before she and her husband had been living on said premises; that on July 8, 1924, plaintiff was sitting on a chair, in the front room on the second floor of said premises when a large piece of plaster fell from the ceiling of the room and struck her on the head, neck and back; that as a result she sustained contusions of the head, neck and back and remained in bed for about seven -weeks, and was confined to her room for about three months, and still suffers from her injuries, and believes they will be permanent; that she spent $50 for a doctor and $25 for drugs; and that she is entitled to $5,000 for past and future sufferings. She alleged that Frank Lamothe was a resident of the City of New Orleans. She prayed for citation and for judgment.

This suit was filed July 3, 1925.

Citation issued July 8, 1925.

On the same day the following return on the citation was made by the Sheriff and filed in the Clerk’s office on July 10, 1925:

“After due and diligent search and inquiry I was unable to find Frank Lamothe, defendant herein, his domicile, or his whereabouts, or any one legally authorized to represent him in this Parish. I am credibly informed that he is a non-resident of this State. I therefore on 8th day of July, 1925, posted a copy of the within citation to the door of the room of Division B, where this Honorable Court holds its sittings, returned to Court same day.
(Signed) “George J. Marin,
“Deputy Sheriff.”

On July 8, 1925, the plaintiff filed a supplemental petition in which she alleged “that the last known address of the defendant herein was at No. 2221 Napoleon Avenue; that the Civil Sheriff for the Parish of Orleans attempted to serve the defendant at the aforesaid address; that said residence was entirely closed and no one was there, as will appear from the Sheriff’s return attached hereto; that she is informed that the defendant is a nonresident and is now in the State of Mississippi; that an attachment is necessary; that the .defendant owns property in the City of New Orleans and particularly 933 Burgundy Street. She prayed for an attachment and for the appointment of a curator ad hoc. ■

The order for the attachment issued and a curator ad hoc was appointed on same July 8, 1925.

On* the same day citation issued addressed to “Frank Lamothe, through Stanley W. Ray, Curator ad hoc.”

The Sheriff’s return on this citation is as follows:

“Received Wednesday, July 8, 1925; on the 10th day of July, 1925, served a copy of this citation and accompanying original and supplemental and amended petition on Frank Lamothe, defendant herein, by personal service on Stanley W. Ray, his Curator ad hoc.”

On July 14, 1925, the defendant filed a motion to set aside the attachment on the ground, among others, “that defendant was not a non-resident of this State.”

On July 18, 1925, the defendant filed the following exception:.

“Now into Court comes defendant and in bar to this action pleads the prescription of one year for this to-wit:
“The petition alleges that injury was suffered July 8, 1924, and no citation was ever served on Frank Lamothe, the defendant; but that on July 10, 1925, two days after the prescription accrued, citation and petition were served on Mr. Stanley Ray, who had been appointed curator; wherefore Frank Lamothe prays that this exception and plea of prescription be maintained and plaintiff’s suit be dismissed at his cost.”

A supplemental rule to dissolve the attachment was filed on the same ground on July 20, 1925.

On the trial of the rules and exceptions the plea of prescription was maintained and the suit was dismissed by judgment dated July 30, 1925.

From this judgment the plaintiff has appealed.

On the trial of the rule the defendant swore that he lived at No. 2221 Napoleon Avenue for the last three years, and in New Orleans for 53 years continuously; that he was a voter registered in the Fourth precinct of the Twelfth ward; that he had paid his poll taxes for the years 1922, 1923 and 1924; that he was not in the City on July 8th; that he was at Clermont Harbor at his son’s residence since June the 13th; that he comes to this City twice a week; he has a commuter hook to come and go; when he comes to town he goes to his home on Napoleon Avenue every day; his daughter attends to the renting of his houses; she has done so for the last 20 years; she lives at 4018 Burgundy Street; when he came to town from June 13th to July 8th, sometimes he slept on Napoleon Avenue, sometimes at his daughter’s; while he was at Clermont Harbor his house on Napoleon Avenue was not closed all the time; he went there twice a week and his son every day; this is the first summer he went to Clermont Harbor, his son rented a house there; his daughter has no procuration from him.

The plaintiff testified that she rented the house 933 Burgundy, where the accident occurred from the defendant’s daughter, Mrs. Christon, she had known her for three years; she paid the rent to her; Mrs. Christon came to collect the rent; witness sometimes went to Mrs. Christon’s house No. 4018 Burgundy Street; Mrs. Christon told her that her father stayed there with her and that she was attending to his business.

No other witness was examined by plaintiff and none by defendant.

It is conclusively shown that defendant was never cited either at his house on Napoleon Avenue, nor at the home of his daughter on Burgundy Street, nor anywhere else at any time.

It is also shown that the defendant had been a resident of Napoleon Avenue for three years and of this City for 53 years; that his daughter attended to his business of renting his houses, and that plaintiff rented from her and was acquainted with her and knew where she lived.

If the Sheriff himself could not find the defendant, he could easily have found him had he made an inquiry of the plaintiff herself and through her, of defendant’s daughter, or had he consulted the city directory. It does not appear that he did either. His return that he made diligent search is a mere empty statement, not showing what that diligent search consisted of, or that he called at defendant's home on Napoleon Avenue, or anywhere else. Defendant was only absent from his home for a time, to spend a few days at his son’s residence at a neighboring watering place. This absence did not justify the conclusion that he was a nonresident or an absentee and liable to attachment proceedings.

Attachment is a harsh proceeding; does not lie against a party only temporarily absent from the State on business or pleasure. 7 M. 414; 12 A. 200; 129 La. 1063; 9 Orl. App. 159.

The attachment being illegal, the citation through a curator ad hoe was unavailing.

But even if the citation was valid it was served only on the 10th of July, after the prescription had accrued.

The action was prescribed by one year under Article C. C. 3536, hence this judgment was correct and is affirmed.


author: REYNOLDS, J.

text:
    No. 2434
    Second Circuit
    DEMOSS v. WILSON
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 254, 256.
    Parol evidence, is admissible, under allegation of error, to prove that the description of the property in a deed is erroneous.
    Armstrong vs. Armstrong, 36 La. Ann. 551.
    Gaines vs. Tidwell, 2 La. App. 12.
    Rodgers vs. Bolinger, 149 La. 545, 89 So. 688.
    2. Louisiana Digest — Appeal—Par. 625, 636.
    When the evidence is conflicting as to whether or not defendant authorized plaintiff to procure a correction deed from their common vendor correctly describing the land sold by the common vendor to defendant so as to remove a cloud on plaintiff’s title caused by the deed to defendant describing plaintiff’s land instead of other land that the common vendor had sold to defendant and defendant had bought from him, the finding of the trial court will not be disturbed unless manifestly erroneous.
    Appeal from the Second Judicial District Court, Parish of Bossier. Hon. E. P. Mills, Judge.
    Action by C. L. Demoss against J. D. Wilson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Drew and Wallace, of Minden, attorneys for plaintiff, appellee.
    W. A. Mabry, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff, C. L. Demoss, alleging himself to be the owner and in the actual possession of the East half of the Northeast quarter of the Southwest quarter of Section two in Township twenty-two North of Range fourteen West, in Bossier parish, Louisiana, by virtue of an act of sale thereof from J. M. Bolding recorded in book No. 46 at page 293 of the conveyance records of said parish, seeks judgment against defendant, J. D. Wilson, decreeing him to be the rightful owner of the land in question and cancelling, as a cloud upon his title thereto, a deed from the said J. M. Bolding to the defendant of the same land recorded in book 41 at page 379 of said records.

Plaintiff alleges that what Bolding intended to sell and Wilson to buy was the west half of the Northeast quarter of the Southwest quarter of said section, township and range; that after the sale to and purchase by him from Bolding it was agreed between plaintiff and defendant that Bolding should execute a deed to defendant correcting the description in the deed from Bolding to him to the west half of the Northeast quarter of the Southwest quarter of said section, township and range and that thereupon defendant should relinquish 'his apparent title to the east half of the Northeast quarter of the Southwest quarter of said section, township and range, and that pursuant to such agreement Bolding did execute such correction deed on December 27, 1923, and is recorded in book No. 72 at page 377 of said records, and that defendant refuses to relinquish his apparent title to the east half of the Northeast quarter of the Southwest quarter and asserts ownership thereof under said deed from Bolding to him.

Defendant denied plaintff was in possession of the. east half of the Northeast quarter of the Southwest quarter and denied that there was error in describing said land, in the deed from Bolding to him and denied that it was Bolding’s intention to sell and his to buy the west half of the Northeast quarter of the Southwest quarter and denied that the correction deed was executed at his request and alleged that it was done, without his knowledge or consent.

On these issues the case was tried and there was judgment decreeing plaintiff to be the owner of the east half of the Northeast quarter of the Southwest quarter of Section two township twenty-two North Range. fourteen west, in Bossier parish, Louisiana, and, as such, entitled to the undisputed possession thereof, and ordering defendant to deliver the possession thereof to plaintiff.

Defendant appealed.

OPINION.

By act dated November 30, 1917, recorded December 1, 1917, in Book No. 41 at page 379, J. M. Bolding sold to J. D. Wilson the east half of the Northeast quarter of the Southwest quarter of Section 2 Township 22 North Range 14 West in Bossier parish, Louisiana.

By act dated July 2, 1919, recorded July 12, 1919, in Book No. 46 at page 293, the same J. M. Bolding sold the same land to C. L. Demoss.

Bolding was an honest man and it is not contended that he intended to sell the same tract of land twice.

After his purchase Wilson, under agreement with Bolding, took possession not only of the twenty acres that he purchased but also of the other half of the forty.

After the sale from Bolding to Demoss Wilson rented from Demoss the land he, purchased from. Bolding, namely, the east half of the Northeast quarter of the Southwest quarter, notwithstanding his own deed from Bolding described that land and his claim that that is what he intended to buy and Bolding to sell.

On discovery of the error in the description in the deed from Bolding to Wilson, Demoss called Wilson’s attention to it and Wilson acknowledged that what he had intended to buy and Bolding to sell was the west half of the Northeast quarter of the Southwest quarter and authorized Demoss to obtain from Bolding a deed correcting the error and -promised that when this was done he, Wilson, would disclaim title to the east half of the Northeast quarter of the Southwest quarter.

By act dated December 27, 1923, recorded November 14, 1924, Bolding conveyed to Wilson the west half of the Northeast quarter of the Southwest quarter of Section 2 Township 22 North Range 14 West, in Bossier parish, Louisiana, stating therein that its purpose was to correct the description of the land in the deed from Bolding to Wilson dated November 30, 1917, recorded in Book No. 41, page —, but Wilson refused to relinquish his apparent title to the east half of the forty, denying there was error in the description of the land in the sale from Bolding to him.

The only question to be decided is, whether it was Bolding’s intention to sell and Wilson’s to buy the east half of the forty.

Defendant objected to the admission of parol evidence to show the intention of the parties, but we think the evidence was admissible, under the authorities above cited.

W. C. Mears testified:

“Q. Do you remember Mr. Wilson coming into the office and we discussed this question of error i.n the deed and, he stated at that time that he had never claimed the east half (E%) of this forty acres of land and that if his deed read the east half (Ey2) it was in error?
“A. Yes, sir.
"Q. He made that statement?
“A. He made that statement — yes, sir.
“Q. Did he make the further statement that if he held a deed to the east half (E%) that he was willing to correct it and suggested, or requested that we go to a notary to prepare the deeds and get deeds of correction, stating that just as soon as Mr. Bolding executed the deed of correction that he would then sign a quitclaim to Mr. Demoss?
“A. Yes, sir; he. stated that he would sign a quitclaim deed; when they got it in- shape, that he would sign that quitclaim deed; that he did not know that he had a deed to that part of the land.
“Q. State, Mr. Mears, whether or not Mr. Wilson has ever paid any rent on this property in question to Mr. Demoss.
“A. Yes, sir; he paid the rent to me for Mr. Demoss.
“Q. What year was that?
“A. That was for 1923.
“Q. How came he to pay you that and what made you remember about that transaction?
“A. Well he came in there and told me that he wanted to pay a one-fourth interest in a bale of cotton and laid the money there for Mr'. Demoss. I thought at first that he wanted to pay an account, but he said no, that this was land rent. I asked him where he was renting land from Mr. Demoss and he told me that Bolding land. He said T will give him one-fourth (%) and I want you to figure out one-fourth of the cotton and I will leave the money with you,’ and he did.
“Q. Now in regard to the conversation that you had with Mr. Wilson, or that you state that Mr. Wilson had with Mr. Demoss and Mr. Wallace, in your presence out there at Plain Dealing, Louisiana, wherein you say that Mr. Wilson said that if there was an error in, the description of the property that he would correct it; did he at that time mention anything about whether he owned or claimed to own the east half (E%) or the west half (W%) of the forty acre tract in question?
“A. Yes, sir; that was the question at that time; the east half (Ey2) and the west half (Wy2) was in question at that time that he made that remark; because Mr. Wilson said he didn’t know that he had a deed to the east half (Ey2) and that if he had he was willing to make the correction.”

R. E. Wyche, Jr., testified:

“Q. State whether or not at that time Mr. Wilson did not state to you that he had never claimed the east half (E%) of this forty acres of land in question and that he always claimed the west half (W%) and that if there was an error in this deed and it read the east half (E'y2) that he was willing to correct it?
“A. That is right.”

J. L. Morgan testified:

“Q. Did Mr. Wilson ever state to you which part of the forty belonged to him?
“A. Well, he told me that he bought the west half (W%) and that old man Charlie Demoss got the other half.”

O. Q. Horton testified:

“Q. State whether or not you rented land from him?
‘‘A. Yes, sir, I rented.”
“Q. You rented and farmed?
“A. Yes, sir, and farmed in 1924.
“Q. Now, then, which part of this forty acres d’d you rent?
“A. Well, I rented it all together — is the way — me and my brother; he said it was his’n and Mr. Demoss.
“Q. Did he state to you at that time which part was Mr. Demoss’?
“A. Well, he told me that the east part was Mr. Demoss’ and the west part was his.”

R. C. Gilmer testified:

“Q. Did you ever hear Mr. Wilson make any claim to this east half (Ey2) of this forty prior to the time — prior to December, 1923?
“A. No, sir; he always told me that he owned the west half.
“Q. Once or more than once?
“A. No. At that time he was clearing this up. He told me I have bought the west half (Wy2) and I told him at that time that I thought he had bought the best half because it was two feet (2') higher than the east half (Ey2) and it was long ways the best piece of ground.
“Q. Do you know that he did not buy this land until November, 1917?
“A. I said that Mr. Bolding was trying to work this piece of ground over there in 1917, the spring part; then in the fall of 1917 Mr. Wilson was over there on the west half (Wy2) clearing it up, and he told me at that time that he had bought the west half (Wy2).
“Q. How came he to tell you that he had bought the west half (W%) ?
“A. Because I asked him the point blank question; which part he bought; I heard that he had bought some . of it; that is why.”

W. H. iStroud testified:

“Q. I will ask you whether or not on that question, whether or not Mr. Wilson did not state that he owned the west half of this certain forty acres of land in question and that there was an error — if his deed read the east half (Ey2) it was an error and he was willing to correct it?
“A. Well, he had Mr. Wyche there correcting some papers; now whether the east or what; there were, corrections made and he had Mr. Wyche make the corrections. * * *
“Q. Do you know whether or not he instructed Mr. *Wyche as to what he wanted done?
“A. Pie told Mr. Wyehe to fix the papers and correct the title, and Mr. Demoss was to bring them out; him and Mr. Demoss and Mr. Wyche were talking.”

The defendant, Wilson, flatly contradicts the testimony of these witnesses, but he admits that he rented for three years the twenty acres Demoss bought from Bolding, which was the east twenty acres, as shown by the deed from Bolding to Demoss.

He does not claim that he mistook the east half of the forty for the west half, and by renting the east half he confirmed his declarations, as testified to by the witnesses, that he was not aware the deed from Bolding to him described the east half and shows he intended to buy the west half; otherwise he would not have been renting what he thought he had bought.

The trial court accepted as true the testimony of plaintiff’s witnesses and we also accept it as true.

• The west half of the forty-acre tract is more valuable than the east naif and a judgment that defendant was the owner of the east half would give him a record title to the whole forty acres when he only claims to own half of it and would leave Demoss without a record title to any part of the land although defendant rented the east twenty acres from him for three years.

The evidence convinces us that what defendant intended to buy and Bolding to sell him was the west half of the Northeast quarter of the Southwest quarter and when the correction deed was executed by Bolding and put on record the error in the description of the land in the deed from Bolding to defendant was corrected. Plaintiff has been in possession of the east twenty acres of .the tract in the person of defendant as his tenant.

The judgment appealed from decrees that plaintiff is the owner and entitled to the east half of the Northwest quarter of the Soutlrwest quarter of Section two Township twenty-two North of Range fourteen West and entitled to the possession thereof and is correct and accordingly is affirmed.


author: JONES, J.

text:
    No. 11,343
    Orleans
    ST. BLANC v. SIMONE, ET AL.
    (June 18, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 218,243.
    Where plaintiff claims to have sold fish, he must prove they were merchantable in order to hold defendants, who made timely objection, before delivery was completed.
    Appeal from Section “A,” First City Court. Hon. W. A. Bahns, Judge.
    Action by Victor J. St. Blanc against Joseph P. Simone and Peter Piazza.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gerald Netter, of New Orleans, attorney for plaintiff, appellant.
    Loys Charbonnet, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sued Joseph P. Simone and Peter Piazza, a commercial co-partnership domiciled and doing business in this city, composed of Joseph P. Simone and Peter Piazza, for one hundred forty ($140.00) dollars, alleging that on or about June 30, 1927, plaintiff sold and delivered "^to said defendants, thirty-five hands of speckled trout, at four ($4.00) dollars per hand, making a total of one hundred forty ($140.00) dollars, on account of which said defendants have paid nothing.

Thq defendants themselves wrote on the back of the citation the words, "General Denial” and signed their names. On the day of trial through their attorney, they filed a supplemental answer admitting that they agreed to purchase fish from plaintiff, saying that the fish sought to he delivered hy plaintiff was spoiled, in process of decomposition and unfit for human consumption, and, therefore, unsalable, that immediately upon the discovery of the condition of the fish, defendants rejected the same, but plaintiff refused to permit return, whereupon, the fish were destroyed; further answering, defendants denied owing plaintiff anything.

Plaintiff objected to the filing of the second answer hy the defendants on the ground that it came too late and that it changed the issues and was inconsistent with the answer of a. general denial previously filed hy the defendants. The objection was properly overruled as the supplemental answer said that the fish “sought tq be delivered” were refused on account of bad condition.' It merely amplified defense.

There was a judgment dismissing plaintiff’s suit, whereupon he took an appeal.

Z' The record shows that Simone, who was temporarily in business with Piazza and knew nothing about fish, had agreed to buy the quantity stated at the price stated from plaintiff’s truck in the French Market and that while the fish were being delivered to defendant’s stand, Piazza, the experienced fish buyer, returned and at-once told plaintiff to stop delivering the fish as they were rotten and unfit for sale. Plaintiff, however, claimed sale had been made and refused to stop delivery.

Plaintiff and his employee, John Michel, swear fish was .good and they sold some from same on that day for the same or better prices to other men in the market, but these purported purchasers did not testify.

Each of the defendants testified that the fish were utterly unfit for sale and had to be destroyed.

Sorina and Marinella, both witnesses for defendants confirm the. testimony of defendants.

Jos. M. Dunn, deputy tax collector, swears he heard Simone tell plaintiff that fish were bad, he must take them back, but plaintiff said, “nothing doing.”

Plaintiff emphasizes certain minor discrepancies in the testimony of defendants’ witnesses as to time and exact words of a telephone conversation between plaintiff and Simone and also as to final disposition of the fish. Such discrepancies are always aipt to he found when there are several witnesses and they are not surprising here, where the witnesses were plainly ignorant laboring men accustomed to working around the French Market.

On rebuttal, plaintiff admitted that he was selling these fish on commission for another dealer and he did not know when they were caught.

We agree with the trial judge that plaintiff has failed to prove his fish merchantable and that defendants made timely objection, before delivery was completed.

For these, reasons, the judgment is affirmed.


text:
    No. 2504
    Second Circuit
    MAY v. YELLOW CAB CO., INC.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 4; 4(a); Master and Servant — Par. 166.
    Where a servant operating a motor truck belonging to his master and on his master’s business stops it on a much travelled city street and near the center thereof on a dark and rainy night without a tail light or other adequate signal of its presence there, and an automobile being carefully driven, whose operator was unaware of the presence of the truck, .though keeping as good a lookout ahead as night and weather permitted, collides therewith, the operator of the motor truck will be held negligent and his employer liable to the owner of the automobile for the damage done thereto by the collision.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. F. X. Ransdeli, Judge.
    Action by Lawrence L. May against Yellow Cab Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Foster, Hall and Smith, of Shreveport, attorneys for plaintiff, appellee.
    Pugh and Boatner; Byron A. Irwin, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sues defendant for $421.60 damages alleged to have been done to his automobile in a collision between it and a motor truck belonging to defendant. The motor truck was being operated by a servant of defendant and on its business and he stopped it on a much travelled street in the City of Shreveport and near the center of the street on a dark and rainy night without a tail-light or other adequate signal to indicate its presence there and an automobile owned and being driven by plaintiff in a careful manner with the plaintiff maintaining as keen a lookout as night and weather conditions permitted, collided with the motor truck and was damaged. Plaintiff alleges that in stopping the motor truck at the time and place and under the weather conditions mentioned without a tail light or other adequate signal of its presence there the operator of the truck was negligent.

Defendant denied liability and denied that the acts of the operator of the motor truck constituted negligence and alleged that plaintiff was operating his automobile at a speed prohibited by the ordinances of the City of Shreveport; that the motor truck was stopped on the right hand side of the street in which it had been moving and had a tail light, and that plaintiff drove his automobile into it, and that the collision was caused solely by plaintiff’s own gross fault, carelessness and negligence.

On these issues the case was tried and there was judgment in favor of plaintiff and against defendant for the sum of two hundred dollars, with legal interest thereon from judicial demand, and defendant appealed.

OPINION.

Plaintiff testified that the collision occurred on Irving Place between 6:30 o’clock and 7:00 o’clock in the evening of January 8, 1925, that it was an exceedingly stormy night and the rain was falling heavily, and—

“I proceeded on Louisiana avenue to the head of Louisiana street where I was forced to. stop because of the traffic ahead of me. I then turned to my left into Jordan street, slowed down, because of the fact that it was very slippery, a very slippery night, I turned to the left there and then turned to the right into Irving Place, as that is a double turn there, and then I proceeded down the middle of Irving Place, just as I do every other night, was not in a hurry, was driving along with my wife by my side, and she suddenly called out, and at the instant that she called out I became aware of the. fact that there was a vehicle or something — I could not make it out — really thought it was a farm wagon with no lights on it, in front of me, and I attempted to apply my brakes but before I could do so I crashed into the back end of this obstruction, whatever it was, and the car just crumpled up. As soon as I had ascertained that my wife .was not seriously, hurt I got out of my car, which was directly in the middle of the street where it struck this obstruction, and looked ahead, and I saw there a baggage truck. I then asked the nigger — there were two niggers in it — I asked the nigger what he was doing parking in the middle of the street without light * * * stopping in the middle of the street, I may have said without any tail light. He looked at his light, which was not burning, and said that he thought it was.
“Q. He looked at the light and it was not burning?
“A. Yes, sir, it was not burning.
“Q. Did he make any further statements as to what he was doing with the truck parked out there?
“A. He said that he had just stopped for a moment under the arc light to read his instructions — to read the address of the house to which he was going.
“Q. I will ask you, when you got out of the car, after it was struck or after it struck the truck, what part of the street was it standing in?
“A. Practically in the center; middle-ways between the two curbs, and practically over the manhole, which was in the center of the street.”

On cross-examination he testified:

“Q. You were paying careful attention to the road?
“A. I was.
“Q. Why was it you did not see the truck parked there as quickly as your wife did?
“A. The reason I did not see it was, the light on the windshield; the windshield had become spotted with rain-drops, and the truck had no tail-light on it whatever. The lights were dimmed because there was a car approaching me about a block distant, and its lights were dimmed; and also because of the fact that upon entering the area of light, near which this truck was standing, still, the rays of my light were reflected on it, on the raindrops on the windshield, which had the effect of killing my lights.
“Q. In other words, the conditions were such that you could hardly see through the windshield at that particular time?
“A. Due to the rain, yes; I couldn’t hardly see anything, unless it had a light warning me.
“Q. Notwithstanding the fact that you could not see through your windshield, you continued to drive your car?
“A. Certainly I could see through the windshield, as well as on any other rainy night, and people drive cars on rainy nights.
“Q. You had no windshield wiper on your car?
“A. No, sir. I will state, if you will permit me, however, that. I observed the tail-lights on numerous other oars on the way out, through my windshield.
“Q. Now, is it not a fact that the truck of the Yellow Cab Company, Inc., was parked almost under a street arc light?
“A. Yes, sir.
“Q. On the opposite side of the street, the left hand side of the street, with reference to the truck and where you were travelling? (J
“A. It was ¡parked in the middle of the street.
“Q. But the arc light—
“A. It was on the left hand side.
“Q. It threw considerable volume of light out?
“A. Yes, sir; as much as they usually do — as much as an arc light will usually throw.”

Plaintiff’s wife, Mrs. Lawrence L. May, who was sitting alongside of him on the front seat of the automobile at the time of the collision, testified:

“Q. State, Mrs. May, what you observed •just before the collision.
“A. Well, we were driving from downtown and on the way out; I was on the front seat of the car and we were on the right hand side of the street, going out, and I observed cars going out, and as we turned into this street out there, Irving street I think it was, it was very dark; we were going slow; I didn’t see anything ahead of me until all of a sudden I seen something black and I hollered ‘lookout, Lawrence’ and we hit it at the same time.
“Q. Now, was there any red light about that car, that truck?
“A. I would have seen it, if there had been any.
“Q. Then, what would be your answer as to whether or not there was?
“A. There was not.”

Miss Pearl Draiss, who was in the automobile with plaintiff and his wife, riding on the rear seat, testified:

“Q. Now, did you see the truck before Mr. May came in contact with it, Miss Draiss?
“A. Just immediately before.
“Q. Now, did you hear any one call out?
“A. I did.
“Q. Who was that?
“A. Mrs. May.
“Q. Did you see it before or at the time or when as to that?
“A. No, sir, I did not.
“Q. Well, I mean did you see it after- | wards or at the same time, or how? i
“A. I saw it just at the time she called out; when she called out I was sitting in the center of the seat and I looked down then and saw it between them, saw the truck just ahead.
“Q. Was there any tail light on that truck?
“A. There was not any burning.
“Q. There was none burning?
“A. No, sir.
“Q. About what portion of the street was that truck, at the time that the collision occurred, with reference to the side or center o.f the street?
“A. It was almost in the center of the street.
“Q. Did you observe Mr. May speak to this boy who was in charge of the truck?
“A. Yes, sir; immediately after he got out of the car. I heard him ask him where was his tail-light.
“Q. What did they say?
“A. They said they thought it was burning.
“Q. He said that he thought the taillight was burning?
“A. Yes, sir.
“Q. Thought it was?
‘‘A. Yes, sir.
“Q. Now, that was the driver of the truck?
“A. Yes, sir.
* * *
“Q. Now, what would you say as to how Mr. May was driving?
“A. Mr. May was driving very careful. We came into the center of the street, and did not have time to pick up much speed in that distance.
“Q. Now, when you turned into Irving street, about how was he driving, fast or slow?
“A. He was going very slow, going into the street, and picked up just a little, I would nqt say over twelve miles an hour.
“Q. At the time of the contact?
“A. Yes, sir; at the time of the contact.
"Q. I will ask you whether or not you observed the lights, both headlights and tail-lights, of other cars, in going out?
“A. Yes, sir, going out Louisiana avenue.
“Q. No difficulty about distinguishing the tail-lights, in driving along there, through the windshield?
“A. No, sir; not a bit.
“Q. Even though it was raining?
“A. Even though it was raining, I saw the tail-lights of cars on the way out.
“Q. What kind of a night was it?,
“A. It was a dark, rainy night.”

Defendant made no effort to contradict the testimony of these witnesses as to the facts and circumstances that brought about the collision, other than by cross-examining them, for the reason, as stated in its brief, that plaintiff had not alleged in his petition nor legally proved on the trial that the driver of the truck was engaged in discharging any duty to it at the time of the collision, for which reason evidence in disproof of that of plaintiff on these points was unnecessary. However, the Supreme Court (May vs. Yellow Cab Co., Inc., 164 La. —, 114 Sou. Reporter, 836; advance sheets, No. 14, January 21, 1928) has held that the allegations of plaintiff’s petition were sufficient to entitle him to make proof that driver of the truck was acting within the scope of his employment, and we think the parking of the motor, truck without a tail-light at the time and place and weather conditions was negligence on the part of the servant for the consequences of which the master is liable.

But the defendant insists that the testimony of the plaintiff and his wife and Miss Draiss shows that plaintiff himself was negligent and that his negligence was the proximate cause of the collision, contending that had he been as careful as under the conditions prevailing at the time and place as the law required him to be he would have seen the motor truck in time to avoid colliding with it even though it had no tail-light.

The evidence shows that just before the collision another automobile was approaching that of plaintiff’s from the opposite direction and plaintiff put on the dimmers on his car and this shows that he was maintaining a lookout ahead.

The trial court was of the opinion that the absence of a tail-light from the motor truck was the proximate cause of the collision and we are unable to conclude that this was error.

This brings us to the question of the amount of damages done to plaintiff’s automobile, as to which there is much conflict of testimony.

Arthur Erwin testified that he was an automobile mechanic employed by WrayDickinson Company, and that he was the owner of plaintiff’s automobile, having purchased it from Wray-Dickinson Company, and—

“Q. Did you repair the car?
“A. Yes, sir.
“Q. What condition is it in now?
“A. Fine condition.
“Q. Did you put it in'as good condition as it was, first class condition as it was before?
“A. Well, I would think so.
* * it*
“Q. What did that car cost to put it in first class condition?
“A. You mean what I paid, or the work and all?
“A. No, just wha.t it cost; the work and what price the parts cost you?
“A. About — I don’t remember exactly, but something like $25.00.
“Q. Something like $25.00?
“A. Yes, sir.
‘‘Q. Was it over $30.00?
“A. No, sir; I don’t think so.
“Q. Can you positively say it was not over $35.00?
“A. Yes, sir.”

E. J. Fuller testified that he was manager of the service department of WrayDickinson and that on behalf of that company he inspected plaintiff’s automobile after the collision and gave plaintiff an estimate of $125.00 as the cost of putting the car back into condition.

The evidence shows that shortly before the collision plaintiff was offered for his automobile the equivalent of $350.00 and another car, and that he transferred the damaged car to Wray-Dickinson Company in part payment of another that he bought from that company and was allowed $50.00 for it.

A careful reading of the conflicting evidence as to the amount of damage done to plaintiff’s car does not enable us to say that the award of the lower court was excessive.

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


text:
    No. 2438
    Second Circuit
    HARDEE & GLASPIE CO. v. KELLY B. F. MOORE & SON, Intervenor and Third Opponent
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Agriculture—Par. 21, 23.
    The recorded pledge of the furnisher of moneys and supplies primes all unrecorded and subsequently recorded privileges of such furnishers.
    Maxwell-Yerger Co. vs. Rogan, 125 La. 1, 51 So. 48.
    Levert vs. Berthelot, 127 La. 1004, 54 So. 329.
    Appeal from the Eleventh Judicial District Court, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by Hardee & G-laspie Co., Inc., against Plummer Kelly. B. F. Moore & Son/ intervenor and third opponent.
    There was judgment for plaintiff and intervenor appealed.
    Judgment reversed in part.
    T. C. Armstrong and Boone & Boone, of Many, attorneys for plaintiff, appellee.
    R. A. Fraser, of Many, attorney for intervenor, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This appeal presents a contest between O. F. Moore, doing business under the name of B. F. Moore & Son, and Hardee-Glaspie Co., Inc., as seizing creditors of their common debtor, Plummer Kelly, for priority in the distribution of the proceeds of the sale of the property seized.

The debts merged in judgment represent moneys or the price of necessary plantation supplies furnished the debtor by the seizing creditors to enable him to grow agricultural products during the year 1924, and the property seized was certain cotton grown by him during that year.

The debt of the plaintiff was evidenced by an open account and that of the third opponent by promissory notes.

The notes representing third opponent’s ' claim contained the following provision, to-wit:

“This note is given for money, goods, wares and merchandise furnished and to be furnished to me during the year 1924, and in order to secure the payment of same I especially pawn, pledge and hypothecate unto the holder hereof my entire crop of cotton, corn and other farm products for 'said year.”

On the back of each note appears the endorsement:

“Piled for record in Crop Lien Record of Sabine parish, Louisiana, Sep. 18, 1924, at 2:35 P. M. W. E. Curtis, Clerk of Court & Ex-Officio Recorder.”
“Recorded Sept. 19, 1924, in Book No. 4 Crop Lien, page 55 of Sabine Parish, La. Cliv Curtis, Dy. Clerk and Ex-officio Dy. Recorder.”

Plaintiff’s privilege was not recorded.

And third opponent asserted that his privilege primed that of plaintiff and he was entitled to have the proceeds of the sale of the defendant’s crop applied toward the satisfaction of his judgment in preference to plaintiff’s claim to have the proceeds first applied toward the satisfaction of his judgment by reason of the fact that his privilege was recorded pursuant to Act No. 23 of 1922, whereas plaintiff’s was not recorded.

On these issues the case was tried and judgment was rendered ordering the proceeds of the sale of the cotton applied concurrently toward the satisfaction of both judgments.

The plaintiff appealed and the third opponent has answered the appeal and asks that his privilege be decreed prior in rank to that of the plaintiff.

OPINION

Under the authority of the case of Flower & King vs. Skipwith, 45 Ann. 895, the judgment appealed from would be correct, but that case was expressly overruled in that of Maxwell-Yerger Co. vs. Rogan, 125 La. 1, 51 So. 48, where the Supreme Court said:

“The recorded pledge of the furnisher of money and supplies primes all unrecorded and all subsequently recorded privileges of such furnishers. It follows that, as plaintiff is the only furnisher of money and supplies before the court whose pledge is recorded, its claim must be given the first rank in that class.”

And in Levert vs. Berthelot, 127 La. 1017, the Court said:

“In Maxwell-Yerger Co. vs. Rogan, 125 La. 1, the question was again presented to this court and in accordance with the second decision cited, supra, it was reconsidered and treated as res novo, with the result that under the last cited decision intervenor’s pledge has priority over plaintiff’s privilege.”

Plaintiff contends' that the burden was on third opponent to prove that his claim represented the price of necessary plantation supplies furnished defendant to enable him to grow the cotton seized.

Conceding without deciding this contention, we find that the evidence clearly shows that one of the notes merged in third opponent’s judgment against defendant, namely, that for $123.31, was given to represent the price of agricultural fertilizer sold by third opponent to defendant and used by the latter in growing the cotton seized, and agricultural fertilizer has been held to be necessary plantation supplies.

American Cotton Oil Co. vs. Spiller Sugar Co., 161 La. 446, 108 So. 475.

It follows, therefore, that third opponent has a privilege on the cotton seized at least for the amount owing on the note for $123.31, and that as his pledge securing the payment thereof was recorded whereas the privilege securing the payment of plaintiff’s claim was not, third opponent’s privilege primes that of plaintiff.

It is therefore ordered, adjudged and decreed that so much of the judgment appealed from as fixes the relative rank of the privilege claimed by plaintiff and the pledgé claimed by third opponent be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment that the pledge of third opponent on the proceeds of the cotton seized is prior in rank to the privilege of the plaintiff thereon and that third opponent is entitled to have such proceeds applied in satisfaction of his judgment against defendant in preference to plaintiff’s judgment.

It is further ordered, adjudged and decreed that the costs incurred in the District Court be paid out of the proceeds of the sale of cotton, and that the costs of this court be paid by plaintiff.


text:
    No. 2564
    Second Circuit
    TAYLOR v. SNOW
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    A finding of fact by the trial court will not be revérsed unless manifestly erroneous.
    1 La. Dig. verbo “Appeal.”
    Appeal from the Eleventh Judicial District Court, Parish of - DeSoto. Hon. Hal A. Burgess, Judge.
    Action by R. L. Taylor against Henry Snow.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Parsons and Colvin, of Mansfield, attorneys for plaintiff, appellant.
    Lee and Williams, of Mansfield, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit on a promissory note. Defendant denied liability and alleged that plaintiff induced him to sign the note as maker when in fact he was only an accommodation endorser and that he had received no consideration for the note. And he also alleged that by agreement between himself and plaintiff and Grant Sudds and James Sudds, the other endorsers thereon the first cotton raised by James Sudd in the year 1923 should go to pay the note and that plaintiff had received from James Sudd of the crop of 1923 more than enough cotton to pay the note and that the plaintiff had in fact paid the note with the proceeds of such cotton to the bank which was then the owner and holder thereof and instead of having the note marked paid had it transferred to him without recourse, and that the note was in fact and in law paid.

On these issues the case was tried and there was judgment for defendant and plaintiff appealed.

OPINION

The evidence makes it clear that plaintiff is a capable business man and defendant an illiterate negro without any business experience. Through three of his negro customers plaintiff induced defendant to sign as maker a promissory note on which plaintiff received the cash for the benefit of one of plaintiff’s customers, James Suddy.

Plaintiff’s three customers, as witnesses for defendant, swore positively, in effect, that it was definitely a,greed between plaintiff and defendant and the endorsers of the note sued on that the note should be paid out of the first cotton of the crop of 1925 raised by the endorser, James Suddy.

Plaintiff denied knowledge of such an agreement but there was introduced in evidence a document signed by plaintiff reading as follows:

“Mansfield, Louisiana. This certifies that I will allow Jim Sudds (as far as I am concerned) to pay a certain note signed by himself, Hy Snow, Grant Sudds, ______________ Blow, out of the first cotton he makes in the year 1920 (3). R. L. TAYLOR.”

The evidence also shows- that plaintiff received from James Suddy out of the crop of 1923, of cotton raised by him, more than enough cotton to pay the note sued on and that plaintiff did pay the note to the bank that then owned and held it and had it transferred to him without recourse.

In our opinion the note was extinguished as between plaintiff and defendant when plaintiff paid the bank the amount owing on it and had it transferred to himself, and the fact that plaintiff made no effort to collect the amount from defendant until the filing of this suit, two years after the note was paid, indicates to us that he himself knew the note was extinguished as between himself and defendant.

The lower court, which heard the witnesses testify and observed their demeanor on the witness stand, was of the opinion that quo ad defendant the noté was extinguished and after reading the evidence we are convinced that the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 2516
    Second Circuit
    FAZIO v. DURHAM
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 53, 59, 337, 344; Mandate — Par. 8, 9.
    One claiming that the life of a mandate in writing was extended by verbal agreement between the principal and the mandatary has the burden of proof; and where the principal denies- and the mandatary asserts that there was such an agreement the burden has not been discharged.
    Spies vs. Caruso, 1 La. App. 544.
    2. Louisiana Digest — Appeal—Par. 625, 634, 635.
    A finding of fact by the trial court that the life of a power of attorney in writing had not been extended by verbal agreement between the principal and attorney will not be disturbed on appeal unless manifestly erroneous.
    Jahncke Service, Inc., vs. Hewson, 1 La. App. 22.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. B. P. Mills, Judge.
    Action by Domenico Fazio against J. M. Durham.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Murff and Perkins, of Shreveport, attorneys for plaintiff, appellant.

      Cecil Morgan and J. M. Grimmet, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sues defendant for $600.00, alleged to be due him for finding a buyer for certain property belonging to defendant. He alleges that by written agreement dated October 9, 1924, defendant constituted him his exclusive agent for the period of fifteen days thereafter to sell his property at the price of $13,000.00, and that by verbal agreement between him and defendant the agency was indefinitely extended, and that he found and introduced a buyer for the property to defendant to whom the defendant sold the property for $12,000.

Defendant denied liability and denied that the procuration had been indefinitely extended and alleged that it was extended for one additional day only, and denied that plaintiff had introduced him to the person to whom he sold the property and alleged that he was in negotiation with him to sell him the property before he employed plaintiff and that after the expiration of plaintiff’s procuration he resumed negotiations with such person and sold him the property and that plaintiff’s previous efforts to that end in no way contributed to the consummation of the sale.

On these issues the case was tried and there was judgment rejecting plaintiff’á demands and dismissing his suit and he has appealed.

OPINION

Defendant gave plaintiff the" exclusive right for fifteen days to sell his property on terms and conditions specified in a written contract for a commission of five per cent. Plaintiff asserts that by verbal agreement between them this time was indefinitely extended and that he found a buyer for the property on the terms and conditions specified.

Thus the burden was on plaintiff to prove by a preponderance of evidence that he found a buyer for the property and that the life of the procuration had been extended.

The testimony of the plaintiff and defendant on these points is diametrically opposite and both witnesses being of equal credibility the plaintiff failed to discharge the burden of proof resting on him.

The exclusive agency to sell with its one-day extension of time admitted by defendant, expired on October 25, 1924. The property was sold by plaintiff on November 24, 1924, more than twenty days after the expiration of plaintiff’s agency as extended and for a thousand dollars less than the price plaintiff was employed to obtain for it and to a person with whom defendant had been in negotiations to sell the property prior to the time he gave plaintiff authority to sell it.

Plaintiff having failed to establish that the life of his procuration had been extended as alleged by him and that he had found a buyer on the terms and conditions prescribed by defendant and the property having been sold by defendant more than twenty days after the expiration of plaintiff’s procuration at less than the price he was authorized to obtain for it and to one with whom defendant was in negotiation to sell the property to before plaintiff appeared upon the scene, the plaintiff did not earn the commission claimed and the defendant is not liable to him therefor.

This was the view taken of the controversy by the District Judge and it is correct.

The judgment appealed from is affirmed.


text:
    No. 2539
    Second Circuit
    GARDNER v. ROBERTS
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 197,218; Pleading — Par. 68, 70.
    An exception of no cause of action not insisted on in the trial court by the ex-ceptor and not passed on by the District Court without objection on his part, will be deemed abandoned and not considered on appeal.
    Gordon vs. Business Men’s R. Assn., 140 La. 674, 73 So. 768.
    2. Louisiana Digest — Slander of Title — Par. 9, 10; Petitory and Possessory Actions — Par. 3.
    Where the defendant in a jactitation suit admits the slander and claims title, the suit is thereby converted into a petitory action, in which the defendant must recover on the strength of his own title.
    Garrett vs. Spratt, 131 La. 707, 60 So. 199.
    Clarkston vs. Vincent & Co., 32 La. Ann. 613.
    Appeal from the Second Judicial District Court, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by Lewis S. Gardner against Mrs. Olive Goodwill Roberts.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. P. Langston, of Minden, attorney for plaintiff, appellee.
    C. M. Roberts; L. K. Watkins, of Min-den, attorneys for defendant, appellant.
   STATEMENT OP THE CASE.

REYNOLDS, J.

Alleging himself to be the owner under recorded title translative of property and in actual possession for more than ten years next prior to the commencement of the action of certain immovable property situated in Webster parish, Louisiana, plaintiff, Lewis S. Gardner, brought this suit against defendant, Mrs. Olive Goodwill Roberts, to recover the sum of $2000.00 with legal interest thereon, from judicial demand, damages alleged to have been sustained by him by reason of the defendant having' caused to be recorded in the conveyance records of said parish an act purporting to convey to her the land so owned and (possessed by him and claiming title to and ownership of the land in virtue of such act.

In the alternative, should the court decree her title to the land superior to his, he alleges that he has put improvements on the land of a value of $500.00 and prays judgment against defendant for said amount.

Defendant filed an exception to the service of the citation and plaintiff was ordered to have service made anew and this was done.

Defendant filed an exception of no cause and no right of action, and she also filed an answer wherein after pleading the prescriptions of one, three, five and ten years she admitted the alleged slander and possession by plaintiff and set up title in herself in virtue of a sale thereof to her father, Alfred Goodwill, deceased, through whom she deraigns title, by the sheriff and ex-officio collector of taxes of Webster parish on September 7, 1901, for taxes assessed against the same for the year 1900 in the name of Webster Harris, who, she alleges, was the owner and in possession of the land at the time the sale was made and had failed to pay the taxes assessed thereon for the. year 1900.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant ordering the cancellation and erasure from the conveyance records of the title under which she asserted ownership of the land, and she appealed.

OPINION.

The exception to the service of the citation was cured by the service anew.

The defendant did not insist in the lower court that her exception of no right or cause of action, be passed on and made no objection to the trial judge not passing on it in advance of judgment on the merits and the exception must be deemed to have been waived and will not be considered on appeal.

Gordon vs. Business Men’s Racing Assn., 140 La. 674.

Defendant admitted the alleged slander of plaintiff’s title and in justification asserted a better title in herself. She thereby converted the action into a petitory one with herself as plaintiff and assumed the burden of succeeding on the strength of her own title rather than on the weakness of his.

She bases her title upon a sale of the property to her author in title, Alfred Goodwill, on September 7, 1901, by the sheriff and ex-officio tax collector of the parish of Webster, recorded in book 12 at page 7 of the conveyance records of said parish, for taxes assessed thereon for the year 1900 in the name of Webster Harris.

The record shows that the land was patented by the United States to. Boston Smith on December 16, 1887, who, by act dated December .6, 1898, recorded October 30, 1900, in conveyance record 10 at page 443, sold the land to J. M. Moore, who, by act dated November 2, 1900, recorded in book 1 at page 484 of said records, sold it to J. L. Allen, who, by act dated January 12, 1901, recorded in book 11 at page 76 of said records, sold it to Bodcaw Lumber Company, which, by act dated December 31, 1912, recorded in book -23 at page 250 of said records, sold it to plaintiff, Lewis S. Gardner.

Webster Harris, the person to whom the property was assessed for the year 1900 and for the taxes assessed to whom for that year it was sold, was never the owner of the property. On the first day of January, 1900, J. M. Moore was the record owner of it, and at .the time of the sale to Alfred Goodwill the Bodcaw Lumber Company was the record ownei.

Plaintiff testified that when he bought the land he immediately took possession of it and has been in possession of it ever since. That it was then not cleared but covered with scrubby timber and that he had cleared arid put in cultivation about twelve acres of it.

J. I. Allen testified that he bought the land in 1900 from J. M. Moore and' that he paid the taxes assessed on it for that year; that his regular taxes were paid on December 27, 1900, and that the taxes on the land in controversy were paid by him in another man’s name as the land was not assessed to him for that year. Asked in whose name it was assessed for 1900 and in whose name he paid the taxes, he answerd:

“In the name oí Webster Harris, or J. M. Moore. I was under the impression it was J. M. Moore’s name.
“Q. Have.you these tax receipts?
“A. No, sir; I turned them over to the other fellow. I was under the impression I turned them over to Mr. Moore, but I see from the records that it was in the name of Webster Harris.
“Q. Why was it not marked paid on the tax roll?
“A. It is marked paid on the tax rolls.
“Q. Paid by the Goodwill tax payer?
“A. It is marked paid there, and I notice from examining the records it is marked paid, then a cross mark across it later, and marked paid by the Goodwill tax-payer, but they did not have that there when I paid it. The word ‘paid’ was put on there when I paid the taxes, and I called the sheriff and tax collector’s attention to it at the time and he said ‘you are right.’
“Q. Who was that?
“A. Mr. Griffith. He says ‘I cannot tell you who marked the line across “paid”.’ He says T can’t tell you.’ And I says ‘would you have marked it paid if it had not been paid,’ and he says ‘I certainly would not’.”

The tax sale relied on by defendant in support of her claim of title to the land was void because of the payment previous to the sale of the taxes for which the sale was made. From January 12, 1900, until after the sale for taxes the Bodcaw Lumber Company was the record owner of the land and it does not appear that any -notice of tax delinquency was given to that company and in the absence of such notice no legal sale could be made.

Ryals vs. Todd, ____ La. ...., (decided October 31, 1927, and not yet reported.)

The judgment appealed from is correct and is therefore affirmed.