text:
    No. 12,551.
    The State vs. Alexander Vance.
    1. Under the indictment for shooting with intent to murder, the jury may convict of shooting with intentto hill, wharton’s Crim. Law, See. 3S4; Acts Nos. 43 and 44 of 1890 ; 6 An. 289; 28 An. 434; 30 An. 1170.
    2. Under such an indictment the verdict “guilty with intent to hill” will be understoood as referring to that offence, though the indictment charges the crime of higher grade.
    PPEAL from the Fifteenth Judicial District Court for the Parish of East Baton Rouge. Brunot, J.

      M. J. Gunninghan, Attorney General, and B. N. Sherburne, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      L. D. Beale for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence of shooting with intentto kill.

The Legislature in 1890 amended the seven hundred and ninety - first section of the Revised Statutes, in reference to the crime of shooting with intent to murder. At the same time the act was passed making it an offence to shoot, stab or thrust with intent to kill. Acts Nos. 43 and 44 of 1890. The indictment charges shooting with intent to kill. The verdict is guilty with intent to kill. The objection to this verdict urged in arrest of judgment is that it is a special verdict, not certain, and hence insufficient to sustain the sentence, and does not respond to the indictment.

The verdict when special must, of course, contain the elements of an offence. 1 Bishop Crim. Law, 1006. Hence special verdicts not covering essentials of the crime have been set aside, and the argument for the defendant directs attention to the decisions of this character. State vs. Ritchie, 3 An. 512; State vs. Davis, 20 An. 354; State vs. Burdon, 38 An. 359; State vs. Hendricks, 38 An. 682. If we are to treat this as a special verdict, it seems to us that the reasonable interpretation of its terms is guilty of shooting and stabbing with a dangerous weapon the person named in the indictment, with intent to kill. Guilty refers to the shooting charged, but the other words qualify the intent. The verdict thus interpreted is of the offence specified in the Act No. 44, of 1890. Such a verdict was held insufficient in one of the cases cited, but the decision was prior to the act of 1890, and when shooting with intent to kill was not an offence.

The objection that the verdict is not responsive to the indictment is answered by the well-settled rule that the verdict is good when it convicts for the lesser included in the greater offence charged. Shooting with intent to kill is the inferior included in the offence charged: Shooting with intent to murder. Acts 43 and 44 of 1890. Wharton’s Crim. Law, Sec. 384; State vs. Stouderman, 6 An. 289; State vs. De Laney, 28 An. 434; State vs. Jessie, 30 An. 1170.

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


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,544.
    The State of Louisiana vs. William Grandison.
    In prosecutions for having committed the offence of ‘"wounding less than mayhem,” the statute has dispensed with the common law “ feloniously,” and has substituted the words “wilfully and maliciously.” State vs. Watson, 41 An. 598.
    The minutes were properly corrected and made to conform to facts.
    By the correction made, it was shown that proper leave had been given to file the information offered.
    A PPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Ringle, ./.

      M. J. Cunningham, Attorney General, and Albert Estopiml, District Attorney, for Plaintiff, Appellee.

      James Wilkinson for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Breaux, J.

An information was filed against the defendant for the crime of iuflicting a wound less than mayhem.

The section under which he was prosecuted was 794 of the Revised Statutes amended by Act 17 of 1888.

The accused was convicted and sentenced to the penitentiary. He relies on two bills of exceptions. The third not being referred-to in the brief, we judge, was abandoned.

We will take them up for decision in the order they are presented in the brief of counsel.

The first bill of exception was taken to the ruling of the court overruling a motion in arrest of judgment. The ground of the motion was, the information did not describe an offence known to the law; that the information was fatally defective, for the pleader did-not use the word “feloniously,” though it was necessary to designate the offence as a felony.

The language of the accusation is in the words of the statute that the defendant did “wilfully” and “maliciously” with and by means of a certain dangerous weapon, to-wit, a shotgun, inflict a wound less than mayhem. This is all that is required in an information charging one with having committed the. crinqe here charged. It was not a felony at common law.

In this State it is a statutory offence, not denounced as a felony by the statute, and not of such gravity and character as render it necessary to class it as a felony.

The statute has, in effect at least, dispensed with the use of the word “ feloniously ” in indictments and informations, and has substituted the words “wilfully ” and “ maliciously.” This, we think, is an answer to the argument of counsel that in the United States any offence which is or may be punishable by State prison is a felony, citing a number of decisions. It was within the power of the Legislature to substitute one term of description for another.

Inflicting a wound less than mayhem is punishable under the law when inflicted wilfully and maliciously. This was the offence charged in the indictment.

In the case of the State of Louisiana vs. Watson, 41 An. 598, the defendant was indicted for “feloniously” inflicting a wound less than mayhem and the words “wilfully” and “maliciously” were omitted from the indictment.

The court decided that not only “feloniously” was not an equivalent, but that it was meaningless. Here the essential words “wil-fully” and “ maliciously ” to a description of the offence were used and the information properly charged the offence.

The second bill of exception raised the question of authority on the part of the court to make corrections of the minutes.

The facts on this point are that the District Attorney asked leave to file an information against the accused for shooting and wounding.

This was manifestly an oversight.

The contention of defendant’s counsel is that inasmuch as leave to file an indictment is a condition precedent to its filing under the law, such condition precedent should be observed; that it was not observed when the District Attorney obtained leave to file an information for “ shooting and wounding,” a crime unknown to the laws of this State.

We understand from the record that leave to file the information was asked, but that an error was committed by the prosecuting officer in his statement of the offence described in the indictment. It remains that the court did order the clerk to file the information presented. The fact that the error found its way into the minutes did not preclude the court from ordering a proper correction of the minutes so as to make it appear of record that the information which had been filed after leave had been granted was the information read to the accused when he was arraigned and the information upon which he was tried.

The error of the prosecuting officer did not lessen the effect of the order which was given to file the information he presented to be filed.

We quote from State vs. Gates, 9 An. 94: “It is well settled that whenever errors or omissions in ministerial acts in criminal proceedings are satisfactorily shown, they may be amended at anytime.” Citing a number of decisions in support of the rule.

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


author: Miller, J.

text:
    No. 12,487.
    State ex rel. Adams vs. Rightor, Judge.
    Tlie power given to tlie District Courts bythe Act No. 129 of 1896, to disbar attor neys for professional misconduct, is not dependent upon or affected by the test of the pecuniary amount involved.
    The disbarment of the attorney for misconduct in his profession is of the class of inherent powers of courts, recognized by this act of 1896, and the penalty for such misconduct prescribed.
    If See. 120 of the Revised Statutes is to be deemed in force, and to require a criminal proceeding to disbar the attorney for misconduct, the Act No. 129 of 1896 is to be accepted as furnishing besides a civil proceeding in the District Courts for the disbarment of the attorney.
    It follows that the Civil District Court has jurisdiction under the act of 1896 of the proceeding against relator to disbar him for the alleged professional misconduct.
    ^~^N APPLICATION for Writs of Certiorari and Prohibition.

      Lionel Adams in propria persona (Lazarus, Moore & Luee of Counsel) for Relator.

      Saunders & Miller for Respondent.
    Argued and submitted April 14, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Miller, J.

The relator seeks the writs of certiorari and prohibition to restrain the Civil District Court from further proceeding in the suit brought under the Act No. 129 of 1896, to disbar the relator from the practice of his profession as attorney at law.

The suit in the Civil District Court was instituted by ten attorneys at law, charging the relator with professional misconduct. The statute on which the proceeding is based provides that if any attorney at law shall be convicted of felony, or shall be guilty of gross professional misconduct, he may be summoned to answer before the District Court of his residence on the petition of ten attorneys setting forth the felony of which he has been convicted, or the professional misconduct complained of, and if on the trial the charges are proven the court shall render judgment reprimanding him, suspending or disbarring him from the practice of his profession.

The defendant in the lower court, the relator here, excepted to the suit, on the grounds substantially, that for the cause stated in the petition he can be proceeded against only in the Criminal District Court, under Section 120 of the Revised Statutes, and on the further ground that the jurisdiction of the Civil District Court is confined by ,the Constitution to civil cases involving the pecuniary amount stated in the Constitution, and the exceptions having been overruled by the lower court the relator made the present application to this court.

The sections of the Revised Statutes relied on to support the relator’s contention cover several phases of professional misconduct of the attorney; fomenting quarrels or suits; neglect or refusal to pay over money collected for clients; fraudulent practices or betrayal of the interests of his clients. For fomenting suits the court having jurisdiction is authorized on motion and by summary proceeding, after notice and hearing of the accused if the charge is proven, to direct the erasure from the roll of attorneys of the name of the attorney; for refusal to pay over money, on conviction, the statute declares, the name of the attorney shall be taken from the list of attorneys and his license canceled, and for betrayal of the interests of his client or fraudulent practices, the statute says, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be stricken from the roll of attorneys and be forever incapable of appearing as such in the courts of this State.

Fraudulent practice and betrayal of the interest of the client made a misdemeanor by Sec. 120 of the Revised Statutes and conviction required to authorize the disbursement of the attorney, would seem to imply a proceeding in a court of criminal jurisdiction. This construction was placed by our predecessors on that section, part of the statute from which Sec. 120 is derived, which authorizes disbarment proceedings against attorneys who neglect or refuse to pay over money collected for their clients. Chevalon vs. Schmidt, 11 Rob. 91; Turner vs. Walsh, 12 Rob. 383. Whether or not criminal proceedings were intended by the lawgiver, or held to be necessary by these decisions not very distinct on the point, there was no hesitancy of our predecessors in concluding that a jury trial and conviction was indispensable to authorize the penalty of the then statute, now Secs. 118, 119 and 120 of the Revised Statutes.

The argument of the relator is, that this section of the Revised Statutes covering the offence charged against him of betraying his client’s interest is not repealed by the act of 1896, and hence the conclusion sought to be supported, that the act of 1896, the basis of this proceeding, has no application to sustain it, but that See. 120 of the Revised Statutes governs the procedure against the relator for the misconduct alleged by petitioners in this case: or in other words, the argument is that See. 120 not repealed, the proceeding against relator, must be in the criminal court, and his further contention is, if we correctly appreciate the argument, that the betrayal of the client’s interest and fraudulent practices, made crimes by this section, the Civil District Court is without jurisdiction.

It is, of course, to be conceded, that repeals of previous laws by -subsequent statutes is not affected unless the repeal is expressed or clearly implied; Civil Code, Art. 23. Hence, thé argument pressed on us that with Sec. 120 in force, the relator is subject only to the method it provides in respect to the alleged offence. The manifest purpose of the act of 1896 is to clothe the District Courts with the jurisdiction to exclude from the profession, attorneys against whom professional misconduct is proved. The procedure directed by the act is by petition, as in ordinary cases. The Legislature, guided by the judicial interpretation that under existing legislation the attorney ■could be reached only by criminal proceedings for misconduct in his ■profession, it is clear to our minds, proposed to supply another ■method by civil proceedings. Without infringing on the principle ■of statutory construction invoked by the relator, full effect can be :given to the act of 1896, without interference with Sec. 120 of the Revised Statutes.» The Revised Statutes may be deemed to afford the basis for the criminal proceeding; the act as the warrant for the ■civil proceeding, and acquittal in one, or conviction or judgment in the other, would doubtless protect against any second proceeding for the same cause.

It is contended on behalf of the relator that the act is incompetent to give jurisdiction to the District Court of the controversy, ■there being, it is contended, no pecuniary amount involved. The ■amendment to the petition is that the right of relator to practise his profession is of value exceeding two thousand dollars. Irrespective ■of the test of amount, there is another view of this jurisdictional ■question. There are powers of courts auxiliary to the purpose of ■their creation, not dependent on the pecuniary test of jurisdiction! The efficiency and purity of the administration of justice rests, in a large degree, upon the integrity of their official conduct of the attorneys practising at the bar of the court. Hence, the power usually called inherent, of courts to guard against improper professional conduct. To punish for contempt is viewed as an incidental power, restricted as it is by legislation. In the early case of Dormenon, 1 Martin, 129, the Supreme Court of the Territory of Orleans of that day excluded an attorney from the bar because of misconduct, although not in the line of profession. No question was made of the power of the court. In Ex parte Robinson, 19 Wallace, 505, the Supreme Oourt of the United States observed the power to disbar was possessed by all courts with authority to admit the attorney to practice. Whether treated as an incident to admit the attorney to practice, or arising -from the establishment of the court with all the instrumentalities to attain the object of its creation, these incidental powers, including the disbarment of attorneys, for misconduct, has been of frequent recognition apparent from the authorities arrayed in the digests. With us there are the limitations as well as the recognition of the power in the sections of the Revised Statutes on the subject, and in this recent act of 1896. We think the conclusion entirely safe that the power to disbar the attorney under the act is not to be viewed as subordinated to the test of amount involved applicable to ordinary controversies, but as incidental to the court itself, and as such recognized by the act.

We deem the objection that the proceeding is criminal, and not civil, and hence not within the jurisdiction of the Civil District Court, answered by the views we have expressed, but it may be proper to add if, as we are of opinion, the power to disbar is a necessary power of all courts, civil or criminal, the penalty, however grave, does not strip the civil court of jurisdiction, and the procedure in the civil court is entirely different from that prescribed for the conviction for crime.

It is therefore ordered, adjudged and decreed that our previous orders on this application be set aside, and that the application be and it is hereby denied.


text:
    No. 12,313.
    Succession of M. P. Phillips; Opposition of S. P. Walmsley to Second Provisional Account.
    1. The dissolution of the sale for non-payment of the price will not affect the mortgages created hy the purchaser; except to subordinate the mortgages to the right of the unpaid vendor to dissolve the sale. Civil Code, Arts. 2012, 3301.
    2. Hence, if in dissolving the sale the vendor is condemned to restore the value of the improvements on the property, the fund arising from the improvements in excess of the price and revenues to which the vendor is entitled w'ill be subjected to the mortgage created by the purchaser during his ownership.
    3. The issue by the maker of the mortgage note carries the mortgage, although the note has been previously issued by him as a collateral and returned. 39 An. 712; 11 An. 881.
    A PPE AL from the Fourteenth Judicial District Court for the Parish of Pointe Coupée. Talbot, J.

      Olivier 0. Provosty for Administratrix of Succession of M. P. Phillips; Appellant.

      Yoist & Claiborne and W. B. Sommerville for Opponent, Appellee.
    Argued and submitted May 10, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the administratrix of the succession of the deceased from the judgment maintaining the opposition of the ordinary creditor to the amount proposed by the tableau of distribution to be awarded the mortgage creditor as the proceeds of the mortgaged property.

The sale of the Oakland plantation, purchased by the deceased, was dissolved, at the suit of the vendor, for non-payment of the price. The questions incident to that dissolution, i. e., the purchase price to be returned by the vendor and the improvements made by the purchaser to be reimbursed to him; and the amount of the revenues of the property during his possession to be returned to the vendor, were before us in 1895. Vincent vs. Phillips, 47 An. 1238. Our decree on this previous appeal corrected an error of the lower court in adjusting the accounts between the parties, and under our decree the vendor paid to the administratrix the excess he had been allowed by the lower court for the revenues of the property. This excess, the fund in the hands of the administratrix, is the subject of this controversy. On her account it is allotted to the payment of the mortgage debt created by the purchaser during his ownership, under the sale dissolved by the resolutory condition, and the opposing creditor insists that the mortgage creditor has no right of satisfaction from the fund.

The note held by the mortgage creditor was originally issued by the maker as a collateral, after serving that purpose was returned and reissued by him to the present creditor. The opponent, contends that the mortgage was extinguished by the return of the note.

On the first proposition urged on behalf of the opposing creditor, that the fund is -not subject to the mortgage, the origin of the fund is of controlling influence. It will not be controverted that though the sale may be dissolved for non-payment of the price, yet until dissolved the purchaser in the exercise of his ownership can mortgage the property. Civil Code, Arts. 2042, 3301. It follows that the mortgage thus created will attach to the property subject to the vendor’s right to dissolve the sale for non-payment of the price, and it is equally clear the mortgage will operate upon any residue derived from the property after the demand of the unpaid vendor is satisfied. In the adjustment of the accounts on the dissolution of this sale, the purchaser was allowed besides the price he had paid the value of the improvements he put on the property. The vendor was allowed the revenues during the ownership of the purchaser. The value of the improvements and the price exceeded the revenues, the improve - ments alone exceeding the price returned. Practically, it was the improvements on the property which made the excess over the revenues, which the administratrix of the deceased purchaser now has in her hands, and it seems to us as the improvements were part of the plantation, the fund, in effect derived on account of the improvements, must be deemed subject to the mortgage. It attaches to the improvements on the immovable mortgaged, and clings, we think, to the proceeds in the administratrix’ hands, representing the improvements.

The proposition that the mortgage was extinguished by the return of the note to the maker, and the mortgage could not be revived by the issue of the note, has been the subject of previons decisions of this court. When the mortgage is for a specific debt, payment extin-tinguishes debt and mortgage, and the subsequent issue of the note will not revive the mortgage. Hill vs. Hall, 4 Rob. 416; Civil Code, Art. 3285. But our jurisprudence may be deemed fixed that when the mortgage note is not for a specific debt, but for future use, and hence in favor of any future holder, that the use of the note as a collateral and its return to the maker will not cancel the mortgage in the event of the reissue of the note. Succession of Dolhonde, 21 An. 5; Insurance Co. vs. Jamison, 25 An. 364; Morris vs. Cain, 39 An. 712; Levy vs. Ford, 41 An. 881. The opponent in his brief places the asserted extinction of the note on the ground it was paid. But the testimony and admission is that the note was used only as a collateral. Thus the right of the creditor who holds it is placed, in respect to the mortgage, under the protection of our jurisprudence on the subject.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the opposition of the opponent be and it is hereby dismissed with costs.


text:
    No. 12,491.
    Mrs. M. A. D. Sentell, Executrix, et al. vs. John E. Hewitt et al.

      Not an Illegal Act. — Under a revocatory action a transfer by an insolvent debtor to one creditor will not be annulled or rescinded unless it is shown that it was to the prejudice of other creditors; and that to the knowledge of the transferee, the debtor was insolvent.

      A Return of Notes to a Creditor. — The evidence established that the notes delivered were the notes of the corporation or partnership, which the debtor in his capacity of president had entered on the books as transferred to him by the corporation or partnership after an order had been issued by the board of directors to bring the business of the corporation or partnership to a close. The question here involved was decided in Sentell & Oo. vs. Rives, 4S An. 1214.

      Not Estopped. — The allegations, in so far as relaces to third persons in the suits referred to as estopping the defendant^from retaining the notes claimed by plaintiff as having been illegally transferred, were open to explanation Estoppel must be certain.

      Reconventional Demand. — Legal interest due, properly allowed, although claimed in the body of the reconventional demand and not in the prayer.

      Credits. — It not having been established that all the notes claimed to have been returned had been returned or transferred to the co-defendant of the debtor, the judgment was amended by reducing the amount allowed, reserving to the debtor the right he may have to claim further credit.

      A PPEAL from the Ninth Judicial District Oourt for the Parish of •i*- De Soto. Land, J. First District, presiding, vice Hall, J., recused.

      Leonard & Randolph for Plaintiffs, Appellants.

      Mam & Hagan and Lee & Liverman for Defendants, Appellees.
    Argued and submitted May 11, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action to recover a judgment upon a claim due by the defendant, Hewitt, to the plaintiff, and to set aside a transfer of property made by the defendant Hewitt on the 28th May, L895, to the special trustee for the Traders Bank of Mansfield. The property transferred by the act assailed was “all of Hewitt’s “ right, title and interest in suit 5157, entitled Hewitt vs. Williams “ et al., with two certain notes, one for one thousand and fifty “ dollars and the other for three thousand seven hundred dollars, and other rights claimed by Hewitt in a third opposition in suit “ 1440.” Out of the property thus transferred the sum of four thousand six hundred and thirty-six dollars and ninety-seven cents was collected by the commissioners for the bank, and is the amount in controversy.

Plaintiff in replication to defendants’ answer, claiming the property as its own, invoked the plea of estoppel.

Plaintiff made, in her petition, the usual averment required to sustain a revocatory action. The defendant bank, on the other hand, claimed that the property was its property, from the first, and that the transfer by Hewitt was only an acknowledgment of the fact that it was the owner prior, to the transfer.

In the alternative, if the act of transfer is set'aside, the bank claimed a vendor’s privilege on the property transferred on the ground that it had not been paid for the property.

Defendant, for an amount it charges as due it, reconvened.

The facts relating to the insolvency charged by the plaintiff, one of the important issues of the case, are that at the time that he, Hewitt, signed the act of transfer in question, he was insolvent. This we are led to believe was not known to the commissioners who represented the bank, the transferee of the property, nor do we think that it was generally known, or known at all, in the community in which the debtor resided and had his business.

The facts, relating to the indebtedness the defendant claims was due by Hewitt to it at the date of the transfer, are,'that on January 1, Hewitt, who was the president of the Bank of Mansfield, drew from the bank on a note, signed by Oarruth & Co., of which firm he was the managing partner, the sum of four thousand dollars, and on May 29, following, he drew on his own note four thousand dollars more.

On June 2, 1893, he returned something on the amount he had borrowed from the bank, and had entries of such returns made on what he chose to designate his special account with the bank. The amount placed to his credit on this special account was three thousand three hundred and forty-eight dollars and éighty-three cents. It was to his credit on this special account on the day that the board of directors entered an order upon the minutes of the board, closing the bank and directing a discontinuance of its business. A few days previous to that day the paper of the bank had gone to protest. The December following, after the bank had been closed, Hewitt charged himself on the special account with the note of thirty-seven hundred dollars, property of the bank at that time, signed by T. J. Williams as maker, upon which he subsequently instituted suit against the maker for his own account, without, at the time, knowledge of the directors.

The defendant bank also claimed that the president owed an additional amount which made him the debtor of the bank for a balance remaining after ocher assets of the bank had been placed to his order.

The facts in regard to the reconventional demand are, that in another case it was decided that the bank was not plaintiff’s debtor. It followed from the decision that instead of the bank, Hewitt & Oo. were the debtors, and, in consequence, they were debited, and the former, the bank, was given proper credit against plaintiffs, Sentell et al. In that manner the plaintiffs became - indebted to the bank in an amount claimed by the defendant commissioners of the bank.

As relates to closing the bank it was charged by the defendant bank that the president passed over the order unnoticed and kept the bank open, and that plaintiffs gave their approval in open disregard of the order of the directors. The bank was insolvent. Sentell vs. Rives, 48 An. 1214.

Upon these issues the court rejected plaintiffs’ demand, to the extent that the action was revocatory, and allowed the reconven - tional demand with five per cent, interest.

Plaintiffs are the appellants from the judgment.

THE GOOD FAITH OF THE COMMISSIONERS.

In considering the issues before us for determination our attention was, in the first place, directed to the disclaimer of the commission - ers (by whom Hewitt’s return of certain assets to the bank was accepted) of any knowledge of the disorder of his affairs.

The disclaimer is sustained by the evidence.

Tlie notes returned were held by the president at the date of the return under an entry in the books of the bank, unauthorized, it is contended, and of which it is asserted the board of directors had no notice until about the date the return was made.

It was not alleged that the commissioners participated in any fraud, or that they had any notice of the insolvency of Hewitt at the date of the transfer. They appear here as having acted in entire good faith in obtaining, as they alleged, the return of certain values. We have seen that with the view of putting an end to the operations of the bank the board of directors had an order entered upon their minutes.

We are not concerned in this case with the rights of shareholders complaining that the business of a corporation was, without notifying them, brought to a close; the question of authority arises between the president of the bank and the board of directors, by whom he had been elected president, and whose mandatory he was.

He, in any case, could not, after the order to close had been issued, negotiate paper transferred to his personal account and benefit, particularly in presence of the fact that he was at the time a debtor of the bank in a sum larger than the notes he held after the entry before mentioned had been made. There is evidence before the court that part of the notes and other claims were entered on the books of the bank, in order to enable him, Hewitt, to bring suit in his own name, to be followed by an accounting by him for any amount collected. But it remains that the change on the face of the books was entirely ex parte and unauthorized by the board of directors.

The want of authority of this officer, Hewitt, to violate the order of his board of directors was considered by us in another case, in which this court held that he was without authority to have a claim of plaintiff, due by himself, carried on the books of the bank of which he was the president, as an indebtedness of the bank. Sentell & Co. vs. Rives, 48 An. 1214.

In view of this cited case, it is not possible for us, with any degree of certainty, to decide that 'he had greater authority in matter of notes and claims here involved; that is, he did not have the authority to have them transferred on the books of the bank to his credit.

But grant'ed, for the present, that he acquired the values despite the fact that he was contravening the order of the board of directors, although he was, at the time, indebted to the bank in a large amount already, the commissioners for the bank, who sought no advantage over other creditors, committed no wrong, and only, it appears to us, sought to secure their principal. They did not, in our judgment, act improperly in accepting the contract of transfer under the circumstances of this case. Bank vs. Cotton Press Company et als., 39 An. 834.

It was, as to them, a business transaction in which it appears that they had no cause to suspect the insolvency of the debtor. In principle one participates in fraud when he knows of the insolvency of the debtor, and he is, in consequence, aware that the act to which he becomes a party will cause loss to creditors. Here there is nothing of the sort. If they knew that he was indebted, they show by testimony that they did not know of the amount.

One may be indebted without wishing to defraud his creditors. Laurent, Droit Civil Francais, Vol. 16, p. 517.

ISSUE AS RELATES TO ESTOPPEL.

The plaintiffs urge that the defendant bank was estopped by entries in its books, and by its pleadings in a suit brought against Hewitt, their common debtor.

We have seen that the entries in the books were made after the directors’ order to close the bank had been issued.

While ifc is true that one may be estopped by the act of his agent within the scope of the latter’s authority, he is not, on the other hand, estopped unless his authority, either express or implied, is shown. Here the president was acting in violation ofthe order of his principal and increasing his indebtedness to it, the bank, in opposition to an order of the board of directors, of which he was well aware. Estoppel is commonly defined as an indisputable admission arising from the circumstances that the one claiming the benefit of it, has in good faith on his part, induced by the voluntary, intelligent action of the one against whom it is averred, to change his position.

There was no voluntary, intelligent action on the part of the bank, with the view of becoming the creditor of its president for an additional amount, and the action of the president could not bind the bank, as operating as an estoppel, in a matter well known to the plaintiff in all its details and which they approved.

With regard to the pleadings and the judgment operating it is argued by the plaintiffs, as an estoppel, the facts are that the suit of the liquidating commissioners was filed the same day that the act of transfer or return here assailed was passed.

The petitioners, who are the defendants here, claimed as due to them by the defendant, the sum of six thousand two hundred and twenty-eight dollars, with interest.

The defendant, Hewitt, pleaded the general denial, and. on the trial he testified, without any objection on the part of plaintiffs, that he had returned to the bank the notes of the bank with which, we have before seen, he had charged himself. No credit, in that ease, was claimed for these notes — that is, judgment was rendered for the amount claimed, and nothing was said in regard to crediting the defendant, Hewitt, with the amount of the notes in question.

The record does not inform us why no credit was given for them in the judgment. Evidently they were considered of little value at the time. They were involved in litigation. The suit on these notes was prosecuted to a successful termination and a sum collected in amount before stated. Immediately after the return of the notes the liquidating commissioners were made the parties plaintiffs, and during a considerable time they prosecuted the suit without objection from any one, on the ground that they had no right to stand in judgment.

The suit was not conclusive in its effect. The issue was open to correction and explanation. The plaintiffs were not parties, and in no way represented or interested in the result as presented by the pleadings in the said case of Bank vs. Hewitt. As it thoroughly explains the issue upon this point, though late in the ease to quote from the evidence, we reproduce the whole of defendant’s testimony in that case. It is not lengthy and contains the only reference made during the trial, to the returned notes. Neither in the pleadings nor in the judgment, or in anything else connected with the case, were these notes mentioned.

EVIDENCE ON PART OP DEPENDANT.”

The defendant admits his legal liability for the debt sued on to the amount of six thousand one hundred and twenty-eight dollars and forty-nine cents; that said debt was made under the following circumstances: that about nine thousand three hundred and fifty-three dollars was charged to me for notes and accounts which have been returned to the bank. One note for about three thousand seven hundred dollars against T. J. Williams; one note against the same party for two thousand and thirteen dollars, and two notes for one thousand and fifty dollars, each against same party. All these have been returned to the bank by notarial act by request of the attorneys of the liquidators.”

Thus, the evidence in the suit upon which it is sought to base an estoppel shows that the notes had been returned to the bank by the notarial act assailed in the case before us for decision. The bank, in the case, invoked as having operated as an estoppel, made no allegation about notes and assumed no position in regard to them. It neither asserted nor denied any right. Nemo presumitur donaré. *

And lastly, in reference to estoppel, plaintiffs assert that the defendants representing the bank on May 28, 1895, recognized Hewitt’s ownership of this property and took it from him to pay a debt of six thousand one hundred and twenty-eight dollars and forty-nine cents, then due by Hewitt to the bank, and that the debt was partly made up of charges against Hewitt on the books of the bank, of the notes and account in question upon which the judgment rendered in the case, pleaded as res judicata, was pronounced.

In our view, the defendant commissioners were not estopped by the acceptance of the notes and by the judgment obtained thereon from showing the true state of facts.

The act of transfer and return of the notes was, in effect, a col-ateral security. We quote from the act: “Whatever amount is realized under these said claims is to be credited on my indebtedness to the bank aforesaid,” i. e., on Hewitt’s indebtedness to the bank.

These conditions of the act protected the debtor; he could still claim credit as amounts were collected. The condition continued in full force after the judgment.

As Hewitt could not be denied the right of claiming due credit for amounts collected on these notes, the plaintiffs are without right to sustain the position that the bank has changed the nature of the debt, has merged it into the judgment, and that it thereby is estopped from showing that it continued to hold the notes for its protection as a creditor. The bank has not changed its position, it only continues to hold the notes, the proceeds of which it is bound to properly credit.

INTEREST allowed.

As to the reconventional demand by the defendants, the amount appears correct.

The objection-is that the District Judge rendered judgment as relates to legal interest, although no mention is made of interest in the prayer of the plea in reconvention.

Interest is claimed in the reconventional demand, but it is not expressly prayed for in the prayer.

The question here is whether interest was claimed. We think it was claimed, and that the prayer, in view of the allegations of the petition, included interest. Daquin vs. Coiron, 8 N. S. 623; Duke of Richmond et al. vs. Milne’s Executors et al., 17 La. 326.

Having considered the different grounds of plaintiff’s action, we are brought to the alleged error in the judgment between J. E. Hewitt and the liquidators of the bank. Hewitt claimed a large amount as a credit for notes returned. It was given in the judgment. The evidence has not satisfied us that he is entitled to a larger credit than the amount of the notes mentioned in the act of transfer; as to the remainder of credits claimed by him, we propose to reserve all of his rights to have it decreed correct hereafter if returned. It follows that the credit allowed will be reduced ‘from eight thousand four hundred and fifty-eight dollars and seventy-five cents to four thousand seven hundred and fifty dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed, save as to the credit of eight thousand four hundred and fifty-eight dollars and seventy-five cents, allowed to J. E. Hewitt, which is hereby reduced to four thousand seven hundred and fifty dollars, as between him and the defendant bank, reserving to Hewitt the right he may have to a larger amount, for notes and other property returned, or paid by him to the bank.

With this amendment, let the judgment remain affirmed at appel-lees’ costs, on appeal.


author: Blanchard, J.

text:
    No. 12,415.
    John H. Hinrichs vs. Tulane Educational Fund et als.
    Proposal made to sell certain immovable property, at stipulated price, was accepted, and party buying wrote letters referring- to the property, declaring his purchase, and exercised acts of control and dominion over the property But formal transfer of title was not made until some weeks later. During the interim acts were done by the purchaser in relation to the property, out of which grew a suit against him for damages by a lessee under recorded lease.

      lleW: 1. Under these circumstances defendant can not be heard to assert that he did not become owner until the day the formal title was passed.
    2. By the purchase defendant assumed the obligations of the lease and the character of lessor toward plaintiff.
    3. He is answerable for the damage and loss sustained by the interruption of the lease through his acts. O. O. 2636, 2608, 2692, 269Ü, 2733, 2011, 201.6.

      j\ PPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.

      W. 8. Benedict, Bobert O. Dugué and Omer Villeré for Plaintiff, Appellee.

      Harry H. Hall for Defendants, Appellants.
    Argued and submitted March 30, 1897.
    Opinion handed down May 10, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff’s action is one sounding in damages for violation of the obligations of a lease. He claims twenty-four thousand two hundred dollars, and from a judgment in his favor for thirteen thousand eight hundred and sixty-four dollars and twenty-four cents, defendant prosecutes this appeal.

As briefly summarized as possible the facts are these:

In December, 1891, Emile Bauman rented from E. I. Kursheedt, agent, the property No. 14 Magazine street (old number), corner of Common street, New Orleans, for two years and nine months from January 1, 1892, at a rental of one hundred and fifty dollars per month, with privilege of renewal for three years more.

On the 16th of February following the plaintiff acquired this lease by transfer from Bauman, and thereupon caused the same, with his transfer, to be inscribed in the conveyance office. His object was to establish a hotel and barroom in the premises, and to this end he entered into an agreement with Bauman, in which it was stipulated plaintiff should cause the necessary alterations and improvements in the building to be made at his expense so as to convert it into a hotel, and Bauman was to manage the hotel and receive one-half of the profits of the venture and $40 per month additional as compensation for his services.

The bu.ilding had originally been constructed for and long used as a store. It was four stories high. The three upper stories were subdivided, under plaintiff’s orders, into six rooms each, and on the lower floor a barroom was elaborately fitted up. The walls of the rooms were papered, staircases constructed, an elevator and other improvements put in, the rooms carpeted, and furniture, bedding, etc., supplied. The whole cost of the improvements and outfit is alleged in the petition to have been seven thousand five hundred dollars.

About the middle of March, 1892, the hotel opened with promise of a profitable business.

Defendant owned the adjoining property, known then as Nos. 10 and 12 Magazine street, and in February, 1892, by resolution”of its board of administrators, decided to erect thereon an eight-story building, which Dwyer Bros, had contracted to lease for five years for annual rents aggregating thirty-eight thousand dollars. Accordingly, the old structure was demolished and preparations made for beginning work on the new.

But before the work of demolition was completed, trouble arose in regard to No. 14 Magazine street.

This building was high and narrow, not exceeding twenty-two feet wide.

Unless care was taken by defendant in demolishing its adjoining building, it was evident No. 14 would be greatly injured, if not destroyed. Indeed, the latter result was imminent unless the outer wall of No. 14 was repaired and strengthened.

Confronted by this complication, defendant corporation convoked a meeting of its real estate committee on March 20, to consider the situation. The chairman of the committee gave information as to the dangerous condition of No. 14, and stated that the city authorities had been called upon to condemn the building. By whom called upon was not stated. Presumably by defendant’s agents. It was further stated that the condemnation had not been ordered because the City Surveyor and an architect representing the owner had agreed that the danger to the building could be averted by repair of its walls.

But as this would cause delay and the property in question could be bought for twenty thousand dollars, the chairman recommended its purchase. Whereupon the committee then and there gave the necessary authorization to the chairman to purchase it. The reason assigned was the importance of having the new buildings on Nos. 10 and 12 Magazine street erected as soon as possible, to meet the rental engagement with Dwyer Bros., who were to have possession by October 1, and because the purchase of No. 14 would facilitate the more rapid construction of Nos. 10 and 12.

Notwithstanding this authorization to purchase No. 14, no immediate steps to that end were taken, and the effort to have the city authorities condemn the building continued. On the 4th of April defendant’s acting secretary addressed a letter to the Mayor, urging its examination and condemnation. Previous to that, however, the architect, Freret, employed by the owners, had, in view of the work of demolition of the adjacent building then going on, examined the structure at No. 14, and had reported that he considered it imprudent to remove the party wall between Nos. 12 and 14 without adequate precautions, or the correction of the defects in the Common street wall of No. 14.

This report was forthwith forwarded by the agent of the owners ' to defendant with a communication calling attention to it, and cautioning defendant to see that no unnecessary damage was done to No. 14 by the demolition of the old and the construction of the new building on Nos. 10 and 12 adjoining.

The city authorities had the building at No. 14 examined pursuant to the request of defendant, and on April 11, issued an order to the agent of the owners to correct the dangerous condition of the building within five days, but gave no order as yet of condemnation.

The owners did nothing. The reason is apparent. Defendant corporation had already authorized the purchase of the property, and negotiations to this end were in progress between the agent of the owners and the agents of defendant. The latter made an offer for the property on the 15th of April, or a few days before that date, as testified to by the agent of the owners, and the agent wired his principals on the 15th, to know if they would sell. They replied affirmatively, and on April 22 he accepted for them defendant’s proposition to purchase, and on same day notified his principals he had sold. The next day, April 23, this agent received a communication from the Secretary of the Mayor, complaining that nothing had been done toward improving the condition of No. 14 Magazine street, in compliance with the Mayor’s order of the 11th, and demanding the demolition of the building or its satisfactory repair. The agent immediately endorsed on this communication these words: “ The within letter is respectfully referred to Mr. Oartright Eustis, chairman Tulane Educational Fund — the building referred to having been' purchased by the administrators of said fund,” signed the endorsement and forwarded it to defendant. After this neither the owners nor their agent had anything to do with the property No. 14 Magazine street, and the same passed under the control and direction of defendant purchaser. This is conclusively shown by the evidence, and especially by a letter addressed to the plaintiff, lessee of the premises, on April 23, by the secretary and treasurer of defendant, wherein it is stated that the city authorities having condemned the building, he (plaintiff) was notified to remove therefrom within forty-eight hours, as the work of demolition would begin at the end of that time. “We give you this notice,” continues the letter, “ because we have purchased the property and are the virtual owners thereof, although the deed has not been passed.”

In his letter of April 22 to defendant, accepting the latter’s offer of nineteen thousand dollars for the property, the agent of the owners stated his acceptance to be upon the condition that defendant assumed all obligations to the lessee of the building. The agent testifies that on same day defendant, through its agent Finley, replied, announcing its acceptance of the proposal to sell for nineteen thousand dollars, the title being found good, and we find such a letter from Finley in the record.

But the owners of the property (there were several) were in distant States, and it required some time to procure the necessary mandates from them to the end of executing formal title to the property. So that it was not until June 17, 1892, that the deed of conveyance was actually signed. And when it was signed, the building No. 14 Magazine street had been entirely demolished and a new structure was either under way or about to be begun by defendant. This being the then condition, the notary, who had been chosen by defendant, inserted in the act of sale a clause to the effect that the property was subject to no incumbrance whatever, except a certain lease, which had been annulled by the destruction of the building rented, said building having been destroyed by order of the municipal authorities of the city.” With reference to this clause, the agent of the owner, who signed the act, testifies it was not inserted at his instance — he did not have it put in.

The same day that plaintiff received the notice from defendant’s secretary to remove from No. 14 Magazine street within forty-eight hours, as it was intended to demolish the building, he replied through his attorney that, while he was ready to confer with the board in regard to the matter, he must protect his rights against any attempted infringement', and the whole testimony shows his objections to, and protests against, the proposed demolition of the building, and his insistence that proper steps be taken to protect it against the consequences of the demolition of the adjacent building and to preserve it for his use and occupancy, under the terms of his lease.

He did not remove within the forty-eight hours, and the act of demolition did not begin at the end of that time.

The Tulane Board had first started out with the intention of repairing No. 14 Magazine street, and retaining it intact, while at the same time erecting their eight-story building on the adjoining property.

It is claimed, however, by defendant that the taking down of the buildings on Nos. 10 and 12 exposed such great weakness in No. 14 that it was found impracticable to repair and preserve it, and the intention toward this building was then changed, and it'was decided to demolish it and rebuild a modern structure on its site.

This was urged by Sully, architect and builder employed by defendant, in a letter to defendant dated April 29.

But the demolition of the building was not begun until after a peremptory order of condemnation had been obtained from the city authorities. This was not obtained until the 17th of May, and when issued was directed to the defendant “ or whom it may concern.” It set forth that the building corner of Magazine and Common streets (No. 14 Magazine), “owned by” defendant, “ owing to the repairs being made and the removal of the walls on both sides of the building places the same in a very precarious and dangerous condition, and that to avoid an accident must be demolished at once.”

It appears that the city authorities had refused to give an order, prior to this, for the demolition of the building, but always that it be repaired and made secure, or demolished, and had duly issued a permit for the necessary repairs to be made.

It also appears that when the order of outright condemnation was issued on May 17, it was based on the then unsafe condition of the building resulting from the taking down at once of both walls — the party wall between Nos. 12 and 14, and the Common street wall of No. 14.

When defendant received this order of condemnation, the next day, through its secretary, it addressed a communication to plaintiff, notifying him to remove all of his effects within twenty-four hours from the building, otherwise it would be done at his expense and risk.

Plaintiff replied in writing immediately, denying the right to demolish the building, that the necessity and order therefor were due solely to defendant’s action in taking down the walls, and protesting and reserving his rights. He stated he would store his furniture, etc., awaiting the re-erection of the building to continue his lease.

Defendant’s agents then entered the building, removed plaintiff’s effects therefrom, and demolished the structure entirely.

The first petition filed in this suit was then pending. It had been filed April 25, 1892. Injunction had been asked against defendant and the agent of the owners, restraining then from interfering with the possession of plaintiff and from tearing down the walls of the building, but had been denied by the court on the rule to show cause.

After the demolition of the building at No. 14 Magazine street, defendant erected on the site, in connection with its new buildings at Nos. 10 and 12 same street, a modern structure,eight stories high. This was completed in the summer of 1892, and advertised for rent. Whereupon plaintiff, on July 23, addressed a communication to defendant, calling attention to this advertisement, and claiming the right under his original lease of possession and occupancy of the premises.

On the 26th of July defendant replied, denying any right of plaintiff to the occupancy of the premises, or to indemnity of any kind. The board stated, however, that perhaps the real estate committee might agree to pay him a small sum “ as a solaeium,” and he was advised to make application for it.

To this plaintiff replied on the 28th, stating his position and rights, and declining the offer of compensation as being “too trivial to merit attention.”

The lease under which plaintiff occupied the premises recited that the building was in good condition, and the evidence shows it to have been in fairly good condition for an old building, with the exception that the rear part of the wall on Common street had sprung, or was bulged — an old defect which the agent of the owners had agreed to repair and caused specifications therefor to be made.

The testimony of Brown, City Engineer, shows that the city authorities had condemned the building and required its demolition only because both the side walls had been removed, and because the whole building was then held up by shoring. The removal of these walls at same time was the act of defendant.

The evidence, furthermore, abundantly shows that all the appeals made to the city authorities to condemn the building were made by defendant’s agents.

It also shows that defendant corporation knew of the agreement of the agent of the owners to repair the Common street wall, and that after the sale of the property to defendant had been agreed on the latter at first recognized its obligation to carry out this agreement.

The law governing the case is simple and of easy application

After its several letters asserting ownership of No. 14 Magazine street, and its various acts of dominion and control over the property long prior to the transfer of the actual title, defendant can not be heard now to insist that it did not become owner until June IV, 1892, the day of the formal execution of the act of sale.

So far as the rights of the plaintiff are concerned, growing out of and as affected by the acts and doings of defendant in respect to this property, the Tulane Educational Fund must be held to have acquired the status of owner thereof on April 22, 1892, and plaintiff is entitled to have his claim for damages tested from that standpoint.

If the evidence m the record were not itself sufficient to justify this conclusion, recourse could be had to the judicial admission of ownership during this time found in defendant’s answer to the third supplemental petition filed by plaintiff in this suit.

Defendant purchased the property on the 22d of April, and the formal notarial act of June IV was but the carrying out of the contract made on the earlier date. When it purchased the property in April, not only was the building at No. 14 Magazine street standing, but plaintiff was occupying it under a recorded lease.

By its purchase defendant assumed the obligations of this lease and the character of lessor toward the plaintiff. C. C. 2733, 2011, 2015.

By the textual provisions of the law the lessor is bound to maintain the thing leased in a condition such as to serve for the use for which it is hired, and also to secure the lessee the peaceable possession of the leased premises during the continuance of the lease. C. 0. 2692.

Nor has the lessor the right to make any alteration in the thing during the continuance of the lease. C. C. 2698.

And in case any loss should result to the lessee from the vices and defects of the thing leased the lessor is bound to indemnify him for the same. C. C. 2695.

So, too, if the lessee be evicted the lessor is answerable for the damage and loss sustained by the interruption of the lease. ’ C. O. 2696.

Having purchased the property on April 22, 1892, with this lease upon it, all these obligations of a lessor devolved upon defendant.

Plaintiff thereafter was its tenant.

Defendant was bound to maintain him in possession of the leased premises, and equally bound to maintain the leased premises in such a condition as to admit of plaintiff’s continued occupancy of the same. If defendant failed in this regard it was answerable to plaintiff in damages.

The evidence not only shows it failed in these obligations to its lessee, but that it was actively instrumental in dispossessing him of the leased premises, and in rendering the leased premises impossible of continued occupancy by him.

Defendant’s contention that there was a necessity for taking down the building No. 14 Magazine street in order to erect its eight-story building on the adjacent site, and enable it to fulfil its contract with Dwyer Bros., even if a lessor can be heard to urge such a plea, the same is not sustained by the testimony. On the contrary, the preponderance and weight of the evidence establishes that with timely and proper repairs and strengthening of the walls of No. 14, the adjoining eight-story structure could have been erected on its pile foundation, leaving No. 14 intact.

It was the duty of defendant, as owner of both sites, to have done this, and its failure in this regard entails upon it the eonséquences the law attaches to a violation by a lessor of the obligations of his lease.

The view we have taken of the case renders it unnecessary to notice other points of attack and defence urged by counsel.

With regard to the amount of damages plaintiff is entitled to recover, we think there must be a reduction of the judgment given below. The judge a quo figured plaintiff’s actual loss at seven thousand one hundred and sixty-four dollars and twenty-four cents. He arrived at this by taking the entire cost of fitting up No. 14 Magazine street for hotel purposes, and then crediting this sum with eight hundred dollars — the amount for which part of the property removed from the building was afterward sold.

But it appears that on the 24th of May, 1892, after plaintiff had been forced out of the building, after the removal of his effects therefrom, and after the destruction of the building itself, he wrote to defendant enclosing a statement of the cost of the improvements under his lease, giving the losses sustained on the outfit, irrespective of loss of business and profits. He avers in the letter that the statement was carefully made by disinterested parties and shows the losses sustained by him. This statement shows the total cost of the outfitting of the building for hotel and bar purposes to have been five thousand nine hundred and thirteen dollars and fifty-one cents, and the actual loss three thousand eight hundred and thirty-five dollars and one cent.

Subsequently it appears that the bills, invoices, papers, etc., relating to the expense incurred in fitting up the establishment were destroyed by a fire that occurred at plaintiff’s place of business. We think the statement presented by plaintiff on May 24, as showing his losses, is the best criterion by which to judge those losses, and, therefore, on this item of damage, the judgment appealed from should be reduced from seven thousand one hundred and sixty-four dollars and twenty-four cents to three thousand eight hundred and tliirty-five dollars and one cent.'

With regard'to the other item of damage representing the value .of the lease for the unexpired term and the renewal privilege thereof, the judge a quo awarded the plaintiff six thousand seven hundred dollars. This is one hundred dollars a month profit for the time the lease was yet to run, counting in also the renewal privilege. The evidence* abundantly sustains the allowance of an hundred dollars a month profit. This item of damage is clearly proven and plaintiff is entitled to recover for same for the unexpired term of the lease. O. C. 1934, 2315, 2696.

When one party enters upon the performance of a contract and incurs expense therein, and being willing to perform, is, without fault of his own, prevented by the other from so doing, his loss will consist of two distinct items of damages: (1) his outlay and expenses, less the value of materials on hand; (2) the profits he might have realized by performance. The first item he may recover in all cases of losses shown. The second he may recover when the profits are the direct fruit of the contract, and are clearly proven. United States vs. Behan, 110 U. S. 338.

But to extend this allowance of $100 a month profit on the lease to the period covered by the renewal privilege, would be stretching the doctrine too far. It would be trenching too much upon damages of a character remote and speculative. We think, under the circumstances of the case at bar, this element of damages should be confined to the actual period of the lease, and denied for the time (three years) for which the lease might be extended by the exercise of the renewal privilege.

Plaintiff's right to recover should not be extended beyond what is commensurate with his obligation to pay. He was bound absolutely for the rent of the building only to the extent of the two years and nine months of the lease, and had he thrown up his contract, or abandoned the leased premises, the lessor could not have recovered for rent beyond that period.

The lease began January 1, 1892, and was for a period of thirty-three months. But plaintiff had possession of the building during the first four months of 1892. He was dispossessed about May 1, of that year.

Deducting the four months from the term of the lease, twenty-nine months are left for which plaintiff is entitled to recover two thousand nine hundred dollars, as against six thousand seven hundred dollars, allowed on this branch of the case by the court below.

These several reductions aggregate seven thousand one hundred and twenty-nine dollars and twenty-three cents, and taken from the sum total of the judgment below, thirteen thousand eight hundred and sixty-four dollars and twenty-four cents, leave six thousand seven hundred and thirty-five dollars and one cent as the true amount plaintiff is entitled to recover.

It is therefore ordered and decreed that the judgment appealed " from be amended by reducing its aggregate amount from thirteen thousand eight hundred and sixty-four dollars and twenty-four cents to six thousand seven hundred and thirty-five dollars and one cent, and that as thus amended the same is affirmed, costs of appeal to be borne by plaintiff and appellee.


text:
    No. 12,373.
    Taxpayers vs. W. A. O’Kelly, Tax Collector.
    Prior to the statute ot 1892, tile courts were without jurisdiction to entertain the case oí a contested election; the contesting of votes is a judicial function only so far as authorized by statute.
    After the statute of 1892, more than three months, the time allowed to contest after an election, had elapsed, and, in consequence the contest was not seasonably filed.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Stubbs & Russell for Plaintiffs, Appellants.

      G. J. Boatner, M. M. Boatner and E. T. Lamicin for Defendant, Appellee.
    Argued and submitted June 2, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Breaux, J.

A number of the taxpayers of the city of Monroe brought this action to enjoin the city tax collector from collecting a special tax levied in favor of the Houston, Central Arkansas & Northern Railroad Company.

The Reynolds & Henry Construction Company, assignees of the railroad company, are the parties in interest as defendants.

Plaintiffs in injunction alleged a number of grounds against the legality of the tax, such as that the petition for the election was not signed by the requisite number of taxpayers; that the commissioners of election did not make a list of the property taxpayers who voted at the election; that no return was made of the election and that no return has ever been announced or promulgated; that the election was not carried by a majority in amount and number; that the railroad company had not earned the tax; that the defendant had agreed to surrender all its rights to the tax, and that they are attempting to extort an amount under the guise of a claim for public work. The defendants excepted to plaintiff’s action, controverted each of the grounds set forth, and interposed the plea of res judicata as a complete bar to all complaints alleged by the plaintiffs.

The judge of the District Court sustained the exception and dismissed the suit.

The plaintiffs appeal.

All the questions here raised were expressly passed upon in the different cases in which the Mayor and City Council of Monroe were parties.

The contention of the plaintiffs is that the issues decided heretofore do not bind them, because they were not parties to the causes, and that they were not represented by the Mayor and City Council of Monroe. ♦

There was unquestionably an election held; a return of election was made and the result announced.

If there were irregularities committed in the election the remedy, in so far as relates to the election, is no longer within the jurisdiction of this court. It had been settled by repeated decisions that this court, in the absence of express law authorizing a contest, was without authority to examine into the validity of an election.

The leading case upon the subject was the case of the State vs. Judge, 13 La. 89. The opinion was subsequently affirmed and reaffirmed.

In State ex rel. Woodruff vs. Police Jury, 41 An. 851, this court said: “The Legislature was charged with the function of ordering this election and regulating the mode in which the votes should be cast and returned, and the result ascertained and proclaimed. It has exercised this function, and it has not seen fit to authorize any appeal to the court.”

The rule of interpretation under which questions regarding the regularity of elections were excluded from the courts had become thoroughly known. It no longer admitted of any discussion. The courts exerted functions only to compel officers to discharge ministerial duties in election.” 41 An. 851.

In 1892 the subject was brought to the attention of the Legislature. It resulted in the adoption of Act 106 of the statutes enacted during the session of that year.

It was expressly provided, in order to invest the courts with authority, which they did not previously have, that an election to impose a tax may be contested before any court of competent jurisdiction on grounds of “fraud, illegality or irregularity, within three months after the promulgation of the result of the election contested.”

The election in this case was held in 1888; the tax was assessed; it was said at bar that it had been partly paid; the work has been performed; it is now, we think, no longer possible under the statute to assume jurisdiction to inquire into and determine whether an election has been legally held.

The denial on the part of the contestants that an election has been held and promulgated can not be given the effect of reopening issues of fact which must be considered closed in view of the several decisions upon that very issue. In other words, it is not possible to contest an election by denying a promulgation of the result made to appear by sufficient legal evidence.

The decree regarding the promulgation of the returns was rendered in 1894.

The court after having considered the Statute No. 84 of 1880, and the ordinance of tne City Council calling the election, came to the conclusion that the result might be announced, as it was announced. It is now too late, we think, to raise the question of want of promulgation, or rather of. irregularity, in announcing the result. The taxpayers are bound by the result announced.

This conclusion, in effect, disposes of all questions connected with or growing out of the election. The conclusion reached in regard to the validity of the election carries with it, in our view, a complete settlement and determination of all issues growing out of the facts prior to the promulgation of the return as well as of the promulgation itself.

We would not feel justifiable, after having held that the election was valid, were we now to decide that it was invalid for any cause preceding the date before stated. The popular verdict was in favor of the tax; that puts an end to controversies upon which the voters have passed and bound themselves by the submission made to the popular will of the city.

There are issues that arose after the election had been promulgated, which, in our opinion, are barred by the plea of res judicata. They are, that the grantees did not begin and prosecute the work in accordance with their contract; that they abandoned the work, and, besides, for a consideration expressed, it is alleged, gave up all claims to the tax in question; that the collection should not be made on the roll of 1894, but on the roll of 1889.

These issues can not be of any avail to the plaintiffs in this action. They have been heretofore expressly decided. The Mayor and City Council who were parties to the litigation were to an extent constituted the agents of the city of Monroe by the act of 1886.

There was a legal agency in matters relating to the contract; the Mayor and council were the parties primarily bound to see to payment for the work. In matter of prescription, for instance, suit against the town operated as an interruption as to all parties concerned. To avoid returning to the subject of prescription we will pass upon the plea of prescription at this time. We think it enough to say that the taxpayer is not entitled to the benefit of that plea, the claim not being prescribed between the parties.

Recurring to the plea of res judicata, there were no rights personal to the taxpayers which remained unaffected by the action brought against the city authorities and the decisions rendered in the actions. The jurisprudence of this State, it is true, has given to the taxpayers a right of action to defend themselves against an alleged wrong. But it must be timely urged. The taxpayers took no part in the proceedings conducted, we may say, in their presence; they failed to avail themselves of the opportunity offered to contest the tax, and permitted the issues to be decided without their intervention.

In Parker vs. Scogin, 11 An. 631, this [court held in a case similar on the point here involved, that “ the nature of municipal corporations is such that they of necessity represent all the citizens of the territory in a matter relating to taxation.” The principle is not without limit, save where as in this case there is much that is in character tacit acquiescence.

“There was a moral identity of parties.” Johnson vs. Weld, 8 An. 129.

In another case this court said: “The jury represents the parish, its property owners and taxpayers, and these latter must be bound by a judgment rendered by a court upon evidence and issue joined and without collusion.” Shields vs. Tax Collector, 32 An. 409.

We are referred to the two cases, State ex rel. Reynolds & Henry Construction Co. vs. Mayor, 46 An. 1276; State ex rel. Reynolds & Henry Construction Company vs. Mayor, 47 An. 1289.

Neither can have any applieation to the alleged invalidity of the election, and neither affords support to any position regarding the invalidity of an election when the action contesting the election has not been timely brought. The legal effect of the decree does not control the plea of res judicata.

With reference.to res judicata the facts and circumstances compel us to the conclusion reached in Vincent vs. Phillips, 48 An. 356.

The decisions heretofore rendered “ must be taken to have settled the law of the case and to have fixed the rights of all parties in respect to this suit whether it be strictly and technically res judicata or not,” citing a long list of applying decisions.

It is therefore ordered and adjudged that the judgment appealed from, decreeing that the election held to ascertain the sense of the property taxpayers of the city of Monroe was, in every respect, valid, also the return of the election and the promulgation of the result, is affirmed.

With reference to the remaining issues it is ordered and adjudged that the plea of res judicata applies.

The judgment is affirmed.


text:
    No. 12,474.
    Walburn-Swenson Company vs. C. B. Darrell.
    The privilege of the unpaid vendor on the movable is not lost because the purchaser places it on his plantation for its improvement. O. C., Art. 3227; Trop-long 1, No. 113; 1 Rob. 373; 28 An. 719; 32 An. 1285.
    TJnder the judgment for his debt, with recognition of his privilege, the privilege creditor may seize, remove and sell such movable for satisfaction of the debt, at least, when the movable can be detached without injury to the immovable. 28 An. 749 ; 32 An. 1285.
    ^PPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Lloyd Posey and D. Gaffery & Son for Plaintiffs, Appellants.

      Philip H. Mentz for Defendant, Appellee.
    Argued and submitted April 14, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused June 19, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs are the unpaid vendors of machinery attached by defendant, 0. B. Darrell, the purchaser, to his plantation, and plaintiffs have a judgment for their debt, with recognition of their privilege. Another creditor of the defendant, Darrell, with mortgage on the plantation, has caused it to be seized for the payment of the mortgaged debt. The plaintiffs applied to the lower court for the separate appraisement and sale of the machinery, subject to plaintiff’s privilege. The lower court refused the order for the separate sale. Thereupon the plaintiffs enjoined the sale of the machinery under the writ of the mortgage creditor, and from the judgment dissolving the injunction this appeal is taken by plaintiffs. It is urged on behalf of plaintiffs that they are not deprived of their privilege by the use defendant made of the property sold, and hence are entitled to sell it for payment of the privilege debt. Under the Code the movable placed by the owner on his plantation for its improvement becomes part of the immovable. Civil Code, Arts. 462, 468. But, notwithstanding, the unpaid vendor of the movable preserves his privilege. It is not lost by the act of the purchaser placing it on his property. Civil Code, Art. 3227, 1 Troplong Priv. et Hypothèque, No. 113; McDonough vs. LeRoy, 1 Rob. 173; Lapene & Jacks vs. McCan, 28 An. 749; Carlin vs. Gordy, 32 An. 1285.

It has been held that the privilege on the movable incorporated with the immovable can not be enforced by a separate sale of the movable. A separate appraisement and proportionate payment from the proceeds of the entirety would seem to be the appropriate remedy when the creditor seeks to enforce his privilege by third opposition. Cordeviolle & Lacroix vs. Hosmer, 16 La. 591; McDonough vs. LeRoy, 1 Rob. 173; Jamison vs. Barelli, 20 An. 402.

But it has also been held that the privilege creditor under his judgment for his debt with recognition of his privilege can seize, remove and sell the movable on which the privilege rests, although the movable has been added to the immovable. Lapene & Jacks vs. McCan, 28 An. 749; Carlin vs. Gordy, 32 An. 1285. The decisions qualify the right to cases in which the removal can be effected without injury to the immovable. We understand there is no contention on that point.

■ As well as we can gather from the brief statement of facts and the record, the application of the privilege creditor to the lower court was not made until the mortgage creditor had seized, and but an hour or two before the sale. Then the relief sought was a separate sale under plaintiffs’ writ. In that form of proceeding the application for the separate sale was properly refused. But when refused, the creditor stood on his Tight under his judgment. We do not understand he lost that right by the refusal of that other relief to which he conceived himself entitled. It is urged, too, by defendant, that after the mortgage creditor seized, the privilege creditor is restricted to a separate appraisement and his share in the proceeds of sale of the entirety. The authorities cited by defendant in this connection, McDonough vs. LeRoy, 1 Rob. 175; Cordeviolle & Lacroix vs. Hosmer, 16 La. 591; City of Baltimore vs. Parlange, 25 An. 337, do not, we think, sustain defendant’s contention on this point. If, under our law, the privilege creditor can assert his privilege under his judgment and execution on the movable added to the immovable, the right can not be defeated because the mortgage creditor has seized, nor because the period for the sale under his writ is close at hand.

In our view, then, the plaintiff was entitled to sell under his judgment, and that right could be protected only by injunction to restrain the sale of the machinery under plaintiffs’ writ. The injunction should have been maintained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed that the injunction of plaintiffs be made perpetual, with costs.


author: Miller, J. Watkins, J.

text:
    No. 12,476.
    G. L. Hall et als. vs. R. B. Hawley & Co. et als.
    The mortgage creditor can not object to the order on the third opposition of a creditor asserting a privilege on the machinery part of the plantation mortgaged, and directing the separate appraisement and sale of the machinery, ■when the mortgage creditor, by bidding at the judicial sale on the land and buildings separately, has precluded the sale of the plantation in its entirety, with the right of a separate appraisement and proportionate payment from the proceeds to which, without a separate sale of the machinery, the privilege creditor was entitled. Civil Code, Arts. 3267, 3268; 16 La. 491; 1 Kob. 373; 28 An. 749; 32 An. 1285; 49 An. p.
    The court again affirms that payment of the mortgage debt by-the ordinary creditor subrogates him to the rights of the mortgage creditor, O. C., Art. 2161.. par. 1; 49 An , p.
    PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.-

      Walter J. Burke and Gilbert L. Hall for Plaintiffs, Appellants.

      Foster & Broussard, Andrew Thorpe and T. H. Thorpe for Defendants, Appellees.

      Argued and submitted April 14, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by plaintiffs from the judgment dissolving their injunction to prevent the removal of certain machinery from the sugar house of the plantation they purchased at a judicial sale.

The plantation was seized under the writ of the first mortgage creditor. The defendants, Hawley & Co., claiming to have purchased the debt for machinery sold to the owner and put by him in the sugar house, filed a third opposition in the suit of the mortgage creditor, asserting the debt of which they had become transferees, the vendor’s privilege on the machinery, and they obtained an order from the court for the separate appraisement and sale of the machinery, the proceeds to be held by the sheriff subject to the payment of their privileged debt. At the sheriff’s sale soon following the defendants became the purchasers of the machinery, and plaintiffs became purchasers of the plantation.

Thereafter the plaintiffs instituted the present suit, averring their purchase of the plantation; that defendants claimed to be creditors of the owner with the vendor’s privilege on the machinery, had obtained the order for the separate appraisement and sale of the machinery; that the sheriff had offered it for sale separately under the order, and had declared it adjudicated to defendants; the petition denied that defendants had the vendor’s lien on the machinery, averred they had acquired no title by their purchase; that, notwithstanding they have notified plaintiffs not to use the machinery, and the petition averring that the taking off of the crop then growing on the plantation absolutely required the use of machinery, and plaintiffs were exposed to irreparable injury by defendants’ pretensions of ownership, asked for an injunction to restrain defendants from any interference with the machinery and for judgment decreeing to be null and void the sale of it by the sheriff. The answer of the defendants averred their privileged debt, their purchase of the property at the sheriff’s sale, maintained their title thus acquired and prayed for the dissolution of the injunction with damages. There was judgment dissolving the injunction, with four hundred and fifty dollars damages. This appeal followed, and defendants answering the appeal ask for the affirmance of the judgment, with increased damages, as well as for those for a frivolous appeal.

That the vendor of the machinery had the privilege, notwithstanding the machinery had been put in the sugar house, and had the right to remove it under judgment and execution for sale, to satisfy his debt, can not be questioned. Civil Code, Arts. 3227, 3268; Lapene & Jacks vs. McCan, 28 An. 749; Carlin vs. Cordy, 32 An. 1285; Walburn-Swenson Co. vs. Darrell, ante p. 1044.

It is, however, insisted by plaintiffs that the alleged obligation under which defendants assert the privilege, was wholly ineffective, because given after the defendants paid the machinery debt. Civil Code, Art. 2160, par. 1. The privilege, it is true, was decreed by the lower court, but that judgment, though not appealed frorá, it is stated, is not final, nor pleaded by defendants as res judicata. Civil Code, Art. 31; Executrix vs. Daboval, 7 La. 579; Williams vs. Bethany, 1 La. 318; Dwight vs. Simon, 4 An. 491. But, as we understand, there is another ground for the subrogation, to which our attention is directed in the argument for defendants. They were creditors when they paid this machinery debt of their debtor. This payment operated a legal subrogation to that debt and privilege securing it. C. C., Art. 2161, par. 1; Ziegler vs. His Creditors, 49 An. 187. There is no pretence that the debtor ever reimbursed the defendants, nor any they ever relinquished it. The subrogation merely evidences the legal subrogation complete, without any writing. In this view we must hold that defendants were entitled to the privilege.

It is further urged by the plaintiffs that whether or not clothed with the privilege, defendants had no right to remove the machinery, and the order authorizing the separate sale and consequent right of removal under their purchase was illegal. There is great force in the proposition that when the privilege creditor asserts his right by third opposition.in the suit of the mortgage creditor, on the movable attached to the immovable, he is restricted to a separate appraisement and his proportionate share of the proceeds. C. C., Art. 3268: McDonough vs. LeRoy, 1 Rob. 175; Carrollton Bank vs. Tayleur, 16 La. 491; Jamison vs. Barelli, 20 An. 452; Walburn-Swenson Company vs. Darrell, 49 An. The plaintiffs were second mortgage creditors. If before the sale they had sought to arrest the separate sale of the machinery, part of the entirety on which their mortgage rested, their position would be different. But they permitted the separate sale not only of the machinery, but they purchased the other portions of the plantation. By their own action they have precluded the sale of the plantation in its entirety with the benefit of the separate appraisement and proportionate payment to which defendants, in any point of view, were entitled. On this ground, we think, plaintiffs can not by their injunction restrain defendants from the benefit of their purchase of the machinery.

There remains the question of damages for the dissolution of the injunction. The lower court fixed the damage for the two months’ use by plaintiff and consequent depreciation of the machinery at four hundred and fifty dollars. This, the plaintiffs allege, is excessive, and in this connection they urge they expended a large sum in improving the machinery. Still they used it, and they owe for that use and for any resulting depreciation. On the review of the testimony we can not reach the conclusion the amount allowed is excessive or find the basis to reduce it. The amount for which defendants purchased was twenty-three hundred dollars. The dissolution of the writ was the natural sequence of the order of the court on the opposition. Under the circumstances, we think a fee of one hundred and fifty dollars a reasonable fee for counsel in procuring the dissolution of the writ.

Courts are reluctant to give damages for a frivolous appeal. It is claimed the injunction was an abuse of the writ. The plaintiffs were second mortgage creditors and purchasers of the plantation. They conceived, with some reason, we think, that defendants had no right to remove machinery, part'of the sugar house when they purchased. Their counsel has made an elaborate argument to sustain his clients. This is not the case for damages for appealing. Under the judgment defendants are compensated for all damages, and fee for counsel is allowed. We think that is all the defendants can reasonably ask.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to allow defendants, Hawley & Co., one hundred and fifty dollars, which, in addition to the amount of the judgment, it is now ordered, adjudged and decreed, defendants recover from plaintiffs, and as thus amended the judgment of the lower court is affirmed at plaintiffs’ cost.

ON Application foe Reheaeing.

Watkins, J.

This is an injunction suit to restrain defendant from removing certain machinery from the sugar house on a plantation plaintiffs purchased at sheriff’s sale in the foreclosure of a mortgage —the defendants having purchased the machinery under a separate appraisement and sale thereof, as creditors with a vendor’s lien.

The plaintiff traversed the allegations of the defendants’ opposition asserting a vendor’s lien, and denied its validity; and on the other hand the opponents insisted on their privilege and prayed for the dissolution of the injunction with damages.

The injunction was dissolved with four hundred dollars damages.

The defendants claim privilege by virtue of a conventional subro-gation ; but plaintiffs insist that the instrument which imports a conventional subrogation is ineffectual for the purpose because it was given after the debt for the machinery had been paid.

But the point was made, and our opinion sustains the claim, that the defendants were creditors of the debtor for the machinery at the time they paid the debt, and that, consequently, they became legally subrogated to the right of vendor’s lien under the principles announced in Ziegler vs. His Creditors, ante p. 187.

Our re-examination of the case has reassured us of the correctness of that proposition, as the evidence shows, indisputably, that defendants were merchants of Mrs. Vignerie, making advances and holding a large balance against her at the time they acquired the vendor’s lien debt against the machinery.

We think, this fact being established, legal subrogation results from the transaction; it is, therefore, of no consequence that the conventional subrogation was insufficient.

Rehearing refused.

Nicholls, C. J., absent; ill.