text:
    No. 5556.
    City of New Orleans v. Bank of Lafayette.
    The bank of Lafayette was organized since the adoption of the constitution of 1868. Article 118 of that instrument declares what property may be exempted from taxation. Any law which is in conflict with that article, whether passed before or after the adoption of the constitution is stricken with nullity thereby, unless the law created a contract with the other party, whose property is exempted before the adoption of the constitution.
    APPEAL from the Superior District Court, parish of Orleans. HawIcins, J.

      Samuel P. Plane, assistant city attorney, for plaintiff and appellee. Breaux, Fenner <& Hall, for defendant and appellant.
   Ludeling, C. J.

The defendant has appealed from a judgment condemning it to pay a tax on its capital stock. The bank claims exemption from the payment of municipal taxes, under the act of 1857, No. 192, which, it is contended, is not repealed by the Revised Statutes of 1870.

The bank was organized since the adoption of the constitution of 1868. Article 118' of that constitution declares what property the General Assembly may exempt from taxation; and the property of banks is not included in any of the classes enumerated. Any law which is in conflict with that article, whether passed before or after the adoption of the constitution, is stricken with nullity thereby, unless the law created a contract with the party whose property is exempted before the adoption of the constitution.

It is therefore ordered that the judgment be affirmed with costs of appeal.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 4354.
    Laurent Julien v. Captain and Owners of Steamer Wade Hampton.
    Passengers have the right to require to be set on shore safely while disembarking, and they are not subjected to the hard lot of encountering dangers gotten up by those whose business it is to provide for their safety in leaving the boat. There should be no necessity existing for them to look out, or to jump from one stage to another in order to save life or limb.
    Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and skill in the performance of these duties, and, of course, they are responsible for any even the slightest neglect. ‘
    The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent.
    APPEAL from the Sixth District Court, parish, of Orleans. Oooley, J.

      JSdward Phillips, for plaintiff and appellee. li. M. Marr, for defendant and appellant.
   Taliaferro, J.

This action is based upon a claim against the defendants for twelve thousand dollars damages, resulting from gross negligence and recklessness on the part of defendants’ employes on board the said boat, while in the act of discharging a quantity of freight, whereby the plaintiff, a passenger on the boat at' the time, received severe bodily injuries, one of his legs being crushed and broken in several places rendering him a cripple for life.

The defendants deny that the accident and injury complained of by the plaintiff were caused by want of care on the part of the defendant’s agents or employes.

Judgment was rendered in favor of the plaintiff for $1540 and costs.

The defendants have appealed.

The plaintiff took passage on board the steamer Wade Hampton in April, 1872, to return from New Orleans to Points Coupee, the place of his residence. When the steamer came to at Cook’s Landing, two stages were launched for the discharge of freight and for the egress of passengers. The water in the river was on a level with the land, and, consequently, the stages presented a very considerable declivity from the boat to the shore. The evidence seems to establish that while the plaintiff was on the stage going ashore and when within about four feet of the land, a barrel of flour, under the guidance of one of the deck hands, and at that moment, about midway the stage, got loose from his hold, or was purposely let go, and rolled down with great rapidity, striking the plaintiff with such force that he was knocked down to the end of the stage, by which one of his legs was broken and badly crushed, from the effects of which he was for a length of time confined to his bed and rendered permanently lame. The Wade Hampton was at that period a regular packet between New Orleans and Natchez, and it appears that on her arrival at Cook’s Landing that trip she was considerably behind her timej and from the drift of the testimony we conclude that perhaps more than the usual. bustle and hurry were used in getting on shore the freight for that landing, and that a proper regard for the safety of the passengers while getting ashore from the boat was not observed. There is,- as usual, in all cases of this sort, a confliction of testimony, but the evidence is satisfactory that the serious injury received by the plaintiff was the result of a reckless disregard of his safety as a passenger, while he was disembarking from the boat and without contributory negligence on his part. A witness states tha^ after the barrel was let loose some one bawled out: “ Look out!” and another witness was sure the plaintiff had time to have jumped from one stage to the other and escape injury. But passengers have the right to require to be set on shore safely, and while disembarking they are not subjected to the hard lot of encountering dangers gotten up by those whose business it is to provide for their safety in leaving the boat. There should be no necessity existing for them to “ look out,” or to jump from one stage to another in order to save life or limb.

Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and skill in the performance of their duties.” Angelí on Carriers, p. 568. “And, of course, they are responsible for any, even the slightest, neglect.” 2 G-reenleaf Ev. 221. The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent.” Angelí on Com. Carriers. The captain and owners are responsible for the acts of their employes. 15 An. 321; 18 La. 490; 2 An. 654; 11 An. 396; 14 How. N. S. 468.

The case is fully made out. We are, however, not inclined to enlarge the judgment as prayed for on the part of the plaintiff. We do not regard it as excessive. It is shown that when the accident occurred the captain procured surgical aid promptly and paid fifty dollars for the services.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.

Rehearing refused.


author: Howell, J.

text:
    No. 3947.
    George E. Wilkinson and Frank Behan v. Joseph Dalferes and Joshua M. Johnston et als.
    The charterer when he has complete control of the vessel, as in this case, is pro hac vice owner, as to parties dealing with him in such capacity, "but he is not such in a contest with the actual owners for the value of the vessel and on the terms of the charter party In such contest the burden is on the owners to prove the negligence of the charterer.
    The authorities relied on in this instance by plaintiffs refer to the responsibility of owners as common carriers, and most of them are based on the act of Congress declaring the fact of explosión to be full prima facie evidence of negligence on the part of the defendant; while this is an action by the owners against their lessee for the value of the property hired by them to the latter. The evidence on this occasion does not show .that the defendant as lessee violated the obligations imposed upon him by article 2710 !R. C. O.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Bentine 1c Egan, Randolph, Singleton <& Browne, for plaintiffs and appellees. James H. Grover, for J. M. Johnston, defendant and' appellee. R. M. Marr, for Dalferes et als., defendants and appellants.
   Howell, J.

On the twentieth day of May, 1870, the defendant Dalferes, with J. M. Johnston as his surety, chartered the steamboat Right Way from the plaintiffs, to be used by him in the Lafourche trade for the term of four months, at the rate of $800 per month, payable in advance. In the charter party it was expressly agreed that the said boat was tight, staunch and strong and well and .sufficiently tackled and appareled, with all things necessary for such a vessel and the business and trade in which she was to be engaged; that the charterer was to have full control of her, and at the expiration of the charter, to return her and her appurtenances to the. plaintiffs at New Orleans in like good order and condition as when first delivered to him, the usual damage, wear and tear, consequent upon navigation and acts of God, fire and dangers of navigation excepted.

About the eighteenth or twentieth of July following one of the boilers exploded and the boat sank at a landing in the Bayou Lafourche, a few miles above Thibodaux-. This suit was instituted on twenty-first September same year for the value of the boat and a balance of the second month’s rent or hire. Dalferes averred that nothing was due the plaintiffs, that by the explosion and the sinking of the boat the contract was terminated, that in hiring the boat he acted to the knowledge of plaintiffs for the Coast and Lafourche Packet Company, for whose account she was run ; that he was not master and not on board; that she was in charge of competent and skillful officers as required by the law; that there was no negligence or fault on the part of himself or those in charge; that the explosion was attributable either to the defective condition of the boilers and machinery at the date of the charter, and which required repairs immediately thereafter, or some other cause beyond the power and control of himself or those for whom he is answerable, and he called the Coast and Lafourche Packet Company in warranty. This companyand Johnston, the suretyj adopted substantially the defendants’ answer, the latter averring that the charter had been transferred without his knowledge or consent. The defendants and warrantors have appealed from a judgment against them, and the plaintiffs from a judgment in favor of Johnston the surety.

The plaintiffs’ counsel say “ the first question to be determined is whether the words, ‘acts of Grou, fire and dangers of navigation’ whieh were excepted in the charter party, would cover a loss by explosion ?” and they cite 14 An. 501 ; 5 E. 138; 23 Law Rep. 277; 16 Howard 472; 24 How. 386; 1 Sprague 477; 1 Clifford 322 ; 8 Wallace 160 and 162; 1 Parsons on Ship, and Adm. 257, as authority in the negative. These authorities refer to the responsibility of owners as common carriers and most of them are based on the act of Congress declaring the fact of explosion to be full prima facie evidence of negligence on the part of the defendant; while this is an action by the owners against their lessee for the value of the property hired by them to the latter. “The lessee is bound, first, to enjoy the thing leased as a good administrator according to the use for which it was intended by the lease; second, to pay the rent at the terms agreed on.” E. C. C. 2710.

The evidence in this case does not show that the defendant violated this obligation ; and we think it unnecessary to go into an analysis of the conflicting testimony in order to ascertain and definitively settle upon the cause of the explosion on scientific principles.

The charterer, when he has complete control of the vessel, as in this case, is pro hac vice owner as to parties dealing with him in such capacity, but he is not such in a contest with the actual owners for the value of the vessel under the terms of the charter party. In such contest the burden is on the owners to prove the negligence of the charterer.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of defendant and warrantors with costs.

Eehearing refused.


text:
    No. 4841.
    Alfred Hennen, Mrs. A. M. Hennen, Executrix and Universal Legatee, subrogated, v. Forget, Guillotet et al. Pike, Brother & Co., garnishees.
    On tlie day fixed for bearing on the rule taken by plaintiffs on the garnishees in this suit to show cause why their answers should not be taken for confessed, an exception to the motion made by the garnishees for leave to amend and explain said answers, was objected to by plaintiffs on the ground that it was too late, and overruled by the judge a quo. There was no error in this ruling.
    The garnishees evinced no disposition to refuse or negleot to answer, or prevaricate. Their original answers were not drawn as definitely as they might have been, but when read in reference to the manifest intent of the interrogatories which were addressed to them as banker.s, gave a negative response to all the questions.
    "When a depositor’s account with Ms banker is closed, the inference is clear and manifest that he has no funds in the hands of said hanker.
    APPEAL from the Sixth District Court, parish of Orleans. Sawder, J.

      B. B. Borman, for plaintiffs and appellants. Hays á New, for garnishees and appellees.
   Howell, J.

The plaintiff having judgment against Victor Gerodias issued garnishment process against Pike, Brother & Co., and to the usual interrogatories added a fourth and fifth, to wit: Fourth — Does not Victor Gerodias keep an account in your bank? Fifth — Has not Victor Gerodias a hank box or other special deposit in your hank vault or in your posession or. under yonr control, and what are the marks, numbers and value of the same and contents, and is not the same sufficient to satisfy this writ of execution ?

The day (twenty-fifth March, 1875) after the service of said interrogatories the following answers were filed.

Now come into court Pike, Brother & Co., bankers, through Paul Blanc, one of the firm, who, responding to the interrogatories propounded in this case, says : First, second and third interrogatories are answered under oaffi as follows: Victor Gerodias has kept an account with us but has made no deposit since the second day of January last, 1873. His account with us is closed. Interrogatory 5 — We have on special deposit a bank box in our vault, No. 1932, the property of Victor Gerodias; what may be the contents or value thereof, we know not.
Signed, PIKE, BROTHER & CO.,
By Paul Blanc.”

On seventeenth April the plaintiff moved to take the interrogatories for confessed and for judgment against the garnishees for the full amount of the writ against Gerodias, which the court refused, but suggested a rule to show cause, and the plaintiff, reserving a bill of exceptions to this ruling, took the rule on the garnishees to show cause why the interrogatories one, two, three and four should not be taken as confessed, on the ground that they have failed to answer the same.

On the day fixed for hearing, the garnishees asked leave to amend and explain their answers, which was allowed, and the plaintiff excepted, because the amendments came too late and because the original answers were not responsive to the first second and third interrogatories, and the failure to answer the second and the fourth amounted to a confession, and the garnishees can not explain or contradict such confession nor amend.

The amended answers are “that they intended, in saying the account of Gerodias was closed, that said Gerodias had no funds whatever in their hands or under their control, belonging to said Gerodias or in which he had any interest at the date of the service of said interrogatories. That they intended by that answer to negatively reply to interrogatories one, two, three and four, and to say that they had no funds of said Gerodias in their hands or under their control at said date.”

There was judgment for the garnishees and plaintiff appealed.

We are of opinion that there was no error in these rulings. The garnishees evinced no disposition to refuse or neglect to answer or to prevaricate. Their original answers were not drawn as definitely as they might have been, but when read in reference to the manifest intent of the interrogatories which were addressed to bankers, they show a negative response to all the questions. When a depositor’s account with his banker is dosed, the inference is clear and irresistible that he has no funds in the hands of the banker.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 5368.
    Ann Dalton, for the use of, etc. v. Succession of Patrick Halpin.
    A suit against an administrator of an estate for alimony by natural children can not be maintained.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Robert G. Rugué, for plaintiff and appellant. T. Gilmore & Sons, for defendant and appellee.
   Ludeling, C. J.

The plaintiff sues for alimony for her children from the succession of their natural father.

The administrator excepted on the ground, among others, that proper parties were not made. This exception was maintained; and the plaintiff appealed.

In the case of Drouet v. Succession of Drouet, it was held that a suit against an administrator of an estate for alimony by the natural children will not be maintained. C. C. 241, 919.

It is therefore ordered that the judgment of the lower court be-affirmed with costs of appeal.


author: Wyly, J.

text:
    No. 4345.
    Heirs of John Slidell v. J. Huppenbauer.

    The act of Congress, July 17,1862, to suppress-insurrection, etc., and tlie joint resolution of the same date explanatory of it, are to be construed together. Under the two thus construed, all that could be sold by virtue of a decree of condemnation and order of sale under the act was a right to the property seized, -terminating with the life of the person for whose offense it had been seized.
    The fact that such person owned the estate in fee simple, and that the libel was against all the right, title, interest and estate of such person, and that the sale and Marshal’s deed professed to convey as much, does not change the result.
    On revising the decree of confiscation by the tribunal of last resort, the rights of the parties and the questions at issue at the time of the libel and decree were the subjects of inquiry. The rights which the plaintiffs now assert were not those at issue. They could not have intervened in the confiscation proceedings against John Slidell, to assert rights which only accrued to them long afterwards, namely, on the death of their father, John Slidell.
    The litigation on the writ of error and the revision by the Supreme Court of the United States only involved the validity of the confiscation. In this instance, the question is, are the plaintiffs entitled, under act of July 17,1862, to the property in controversy, since the death of their father, notwithstanding there was a valid confiscation of it under said statute ? The question must be decided in the affirmative.
    APPEAL from the Fourth Distriet Court, parish of Orleans. Théard, J.

      Olarlce, Bayne <& Benshmo, for plaintiffs and appellees. L. Madison Bay, for defendant and appellant.

       Carriefl by writ of error to the Supreme Coart of tbe United States.

   Wyly, J.

The plaintiffs, the heirs of John Slidell, sue the defendant for two lots of ground and the buildings on Common street, which he acquired under a writ of venditioni exponas issued on the judgment condemning them, under act of Congress of July 17, 1862, as the property of John Slidell; they also claim the rents of said property since the death of Mr. Slidell, July 30, 1871. There was judgment for plaintiffs and defendant has appealed.

In Bigelow v. Forrest, 9 Wallace 339, the Supreme Court of the United States decided that the act of July 17, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” and the joint resolution of the same date explanatory of it, are to be construed together. Under the two thus construed all that could be sold by virtue of a decree of condemnation and order of sale under the act was a right to the property seized, terminating with the life of the person for whose offense it had been seized. The fact that such person owned the estate in fee simple, and that the libel was against all the right,, title, interest, and estate of such person, and that the sale and marshal’s deed professed to convey as much, does not change the result. In Micou v. Day, Heirs of John Slidell v. Brugere and the same v. Heath, this court followed the interpretation of the act of July 17, 1862, given by the Supreme Court of the United States in Bigelow v. Forrest and held that the confiscation did not reach beyond the life of the offender. These decisions were, on writ of error, affirmed by that court. We regard the question as settled and must decide this case as we did those of the same plaintiffs against Brugere and Heath. The defendant, however, contends that as the plaintiffs were-parties to the writ of error to the Circuit Court for the District of Louisiana and the cases known as the confiscation cases, 20 Wallace 104, they are concluded by said decision from claiming that the decree of condemnation only extended to the life estate of John Slidell, because by said judgment the decree of condemnation of the District Court was ordered to be affirmed, which declared the lots in question “ the property of John Slidell” etc., “be and the same is hereby condemned as forfeited to the United States.” This same judgment condemned also the lots involved in the suit of these same plaintiffs against Brugere and also against Heath — -all of Slidell’s property was confiscated in this same decree rendered in the case styled United States v. 844 lots and 16 squares of ground, the property of John Slidell on the docket of the district court — yet in the cases mentioned this court held that the condemnation and sale only extended to the life estate of Slidell. The confiscation in the case of Benjamin, under a similar decree, this court held in the case of Micou v. Benjamin, to extend only to the life estate of the offender. In Bigelow v. Forrest, all “ the real property mentioned and described in the libel” was condemned and sold, yet the Supreme Court of the United States decided that “under the act of Congress the district court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest. Had it done so it would have transcended its jurisdiction.”

How the title of the defendant, a purchaser under the same decree and order of sale as that under which Brugere and Heath purchased, could acquire a better title than they did, or than that received by him at the adjudication, because of a subsequent revision and affirmance of the said decree by the Supreme Court of the United States, it is difficult to imagine. And how the litigation of the writ of error to which plaintiffs were made parties, after the death of their father, John Slidell, and the decision maintaining the confiscation, can estop them from asserting rights which arose subsequent to the confiscation and which under act of July 17, 1862, were reserved to them notwithstanding the validity of the confiscation, it is likewise difficult to understand. In revising the decree of condemnation the rights of the parties and the questions at issue at the time of the libel and decree were the subjects of inquiry. The rights which the plaintiffs now assert were not then at issue. They could not have intervened in the confiscation proceedings against John Slidell to assert rights which only accrued to them long afterward, namely, on the death of their father John Slidell. The litigation on the writ of error and the revision by the Supreme Court of the United States only involved the validity of the confiscation. Jiere the question is, are the plaintiffs entitled under act of July 17, 1862, to the property since the death of their father, notwithstanding there wasí a valid confiscation of it under said statute. Under the decisions of this court and the Supreme Court of the United States in similar cases the question must be decided in the affirmative.

Judgment affirmed.


author: Taliaferro, J. Howell, J.,

text:
    No. 5312.
    Mrs. Jane H. H. Todd v. John Bourke. Van Solingen & Carpenter, called in warranty.
    Prom the evidence in this case, the relations of the two defendants in warranty toward the plaintiff must be regarded as being something more than those of brokers. Their functions and obligations did not cease upon merely bringing together the parties that were to contract and leaving them to arrange their business as they saw best. They must be regarded in the light of mandatories and as having assumed themselves this character, in consequence of which they were bound to use the same diligence and precaution to prevent fraud being practiced upon the plaintiff, that a prudent man would use in regard to his own affairs. Their not having done so, makes them responsible for the consequences of the iraud which they could have detected and defeated by ordinary diligence.
    APPEAL from the Fourth District Court', parish of Orleans. Lynch, J.
    TV. B. Lancaster, for plaintiff and appellee. Bichard Shackle-ford, for defendant and appellee. Brauglm, Buck & Binkelspiel, and G. L. Hall, for warrantors and appellants.
   Taliaferro, J.

The plaintiff had twelve' hundred dollars, which she was willing to put out at interest on mortgage security, and entered into an arrangement of the sort, as she supposed, with the defendant, Bourke, through the agency and advice of Van Solingen & Carpenter, brokers engaged in real estate business, the negotiation of mortgages, and matters of that kind. These brokers found that one William McC. Jones, a notary public, had a mortgage note, purporting to he signed by Bourke, the defendant, by making a cross mark' for twelve hundred dollars, which they were informed Bourke desired to have discounted, McC. Jones representing to them that the property proposed to be mortgaged was worth five thousand dollars and the title good, and the acts prepared to be passed before him. The plaintiff was informed of these facts, and advised by the brokers to make an investment of her money in the manner proposed, which she accordingly did, after going to see the property proposed to he mortgaged and on further conference with the brokers and the title to the property being examined by an attorney. It turned out that the pretended note and mortgage were forgeries, gotten up by McC. Jones, the notary, who, some time after this operation, absconded with the money which he had pretendingly received for Bourke.

The plaintiff brought this suit against Bourke on the note she received, and, subsequently, in an amended petition, called Van Solingen & Carpenter in warranty. Judgment was rendered in favor of Bourke, but in favor of the plaintiff against Van Solingen & Carpenter, in sólido, for twelve hundred dollars, with interest, etc., and they prosecute this appeal.

A solution of this case depends mainly upon the conclusions to be drawn from the evidence, and that is conflicting. The plaintiff herself, her sister and father testify on her behalf, and the brokers in their own behalf.

The brokers say in their evidence that they knew nothing of their own knowledge of Bourke, whose note was to be discounted, nor of the property to be mortgaged, but derived their knowledge from McC. Jones, with whom they had frequent business transactions, and in whose integrity they had always implicitly confided. They both flatly deny that they ever told the plaintiff they were well acquainted with Bourke. The plaintiff is equally as positive in asserting that Carpenter was asked by her if he knew Bourke, and that he replied he did; that Bourke was a man of the highest reputation, a man he would trust with any amount of money. The plaintiff’s sister is equally positive in her statement that Van Solingen told her that he knew this man •Bourke Very well, but he said : “When you go to look at the house, you must not go in, because Mr. Bourke was a very proud man, and he did not want any person in the neighborhood to know he was borrowing money.” The plaintiff’s father is equally positive in his statement that he asked Carpenter if he knew Bourke, and that he answered he knew him perfectly, and that he knew the property.

If we attach credit to the statements of the plaintiff and those of her sister, we must infer that the brokers used persuasive means to induce the plaintiff to make the investment, and even a doubt might arise whether they did not take the initiative in the matter of making the investment. When placed upon the stand as a witness and being instructed by the attorney to tell all that transpired between herself and the brokers in regard to investing her money, the plaintiff said: “I was advised by them, who knew I had this money, to invest it — that it would be much better to put it out on a mortgage and to get interest. They advised me to do this in the capacity of friends, as they had known my family for years, as well as myself. I told Mr. Carpenter that I did not wish to invest the money in anything, and I would rather keep it and get no interest. He then stated that it was not perfectly safe to keep money in that manner. I told him we had had so much trouble that I would rather keep my money; that I had worked hard for it. He said no, that there would be no trouble, and that he would see that all was perfectly safe; that he would ’see to it as if it was for his own daughter, and that it would be perfectly right. He told me to go and look at the property, as it was very seldom that one could find an opportunity to loan out so small an amount on good mortgages. He cautioned me before going to look at the property not to enter the house, because the gentleman who wished to borrow did not want it known that he was borrowing money, and that he was a very proud man; that we could look at the house from the outside and see that it was fully worth that amount of money.” * * * “ So we went the next day to Van Solingen & Carpenter to pay the money .for the note. I then noticed that the man, John Bourke, signed his name with a mark. I thought it very strange that a proud man, as he was represented to be, was not able to sign his name, and I said to Mr. Carpenter: ‘This man signs his name with a mark.’ He said yes. I said it is very strange, being such a proud man, that he should sign his name with a mark.” * ***** “ I would like to see the man who made that mark; there is nothing to prove that it is his mark. I said: ‘ Did you see him sign the mark V and Mr. Carpenter said yes. Then I said: Very well; if you saw him make the mark it is all right. I rely on your word. I believe you are a friend of mine, and if anything was wrong you would tell me. The money was then paid. Mr. Van Solingen also advised me to do it.”

The plaintiff’s sister testifies in this manner: “I had a property, and at the time there was a note coming due on it. Messrs. Van Solingen & Carpenter were the agents to procure more money on it. I let the property I had go; it was sold by the sheriff, and this Messrs. Van Solingen & Carpenter knew, and that we had the money. Mr. Van Solingen came up to the house, and he said to me: I have a splendid piece of property for you to invest your money in. It was much safer to invest it than to keep it idle, afid also to keep it in the house.” * * * “ When the note became due, I told her (the sister) it was time to renew the insurance. She went down to Van Solingen & Carpenter to see about it. The moment I went in, Mr. Van Solingen said: ‘I never liked that Mr. McC. Jones, and,’ he says, ‘ he was put in the Louisiana Retreat for drinking.’ ”***** “ When I went to Messrs. Van Solingen & Carpenter they acted very strange; they did not wish to interest themselves in the case at all.”

Then there is the father’s testimony, corroborating in several important particulars the statements of the two daughters. He says that he dissuaded the plaintiff from making the investment; that he thought it a bad investment for a young lady to have anything to do with mortgages, and told her she had better not; but she held out that Mr. Carpenter had said this and that, and what great good we could do this man and Carpenter. The statement of this witness is that he went to the office of Yan Solingen & Carpenter for the purpose of asking a few business questions relative to the mortgage. The record shows that he made special inquiries of Carpenter as to the object and purport of the mortgage; whether he knew the party with whom they were to deal, and if he knew the property. He inquired of him if there was an abstract of the title; that after the thing was talked over, Carpenter said the deeds and everything were correct, and that he would attend to the insurance being made out in his daughter’s name. He then says he asked Carpenter if he was present and saw these deeds signed in the notary’s office, and he said he was. My daughter, he continues, had previously asked him as to the signature of Mr. Bourke being made with a cross or mark. Mr. Yan Solingen said that he was so well acquainted with the man that there was not the slightest or most remote danger. This witness, after much detail, says: The substance of the whole conversation was just simply this, that they vouched for the correctness and honesty, and uprightness of the mortgage; that they had known this man for years; that he was above reproach, and there would be no difficulty in getting the money when the mortgage fell due.”

Here then are three witnesses, two of whom have no direct interest in the case against two who have. In regard to the plaintiff we must bear in mind that she is a young woman obviously ignorant and unskilled in negotiations of the kind, evidently distrustful and hesitating, and at ñrst, unwilliug even, to make an investment, fearful of risking a loss of her money. That state of feeling and a disposition of that sort, it was- natural to expect in a female of her years, wholly inexperienced in making investments of money. All the particulars of the negotiations that occurred in making this instrument are detailed by the two sisters at considerable length, and the circumstances under which they were made are given with minuteness. This was to be expected. The lending out of $1200, all the plaintiff’s money, was to her a very important matter, and it is not to be wondered at that the circumstances attending the act created durable impressions upon her mind. More reliance, we should be inclined to think, might be placed on the memories of those two witnesses in regard to all that occurred during the transaction, than upon those of the brokers, who, in the midst of other business, perhaps of much greater magnitude and.' importance, were not so exclusively absorbed in thinking of this single subject.

There is no good reason why the statements of these three witnesses,involving no contradictions, betraying no want of consistency, and-' being plain, simple and natural, should be disregarded, because they are so curtly contradicted by the brokers testifying in their own behalf.We must, from the evidence, regard the relations of these two defendants toward the plaintiff as being something more than those of brokers. Their functions and obligations did not cease upon merely bringing together the parties that were to contract and leaving them to arrange their business as they saw best. We must regard them in the light of mandatories, and as having assumed the character themselves, that they were bound to use the same diligence and precaution to prevent fraud being practiced upon the plaintiff that a prudent person would use in regard to his own affairs.

The evidence justifies the conclusion that they evinced an unusual desire that the investment should be made; that they were persistent in their recommendations to the plaintiff to invest her money, assuring her of the safety and advantage to her of the operation. They moreover assumed the responsibility of giving their personal attention to the transaction, and seeing that everything should be fully and correctly done to render it safe and beyond all hazard. Upon these assurances alone, and looking to them for their fulfillment, we are satisfied, the plaintiff was induced to lend her money. True, it is shown that they advised that the title should be examined, and were instrumental in employing an attorney to do it; but no examination or scrutiny was made of the note, the mortgage, the transfer of the policy of insurance, nor of the mortgage certificate, if there were one. Four forgeries were necessary in the transaction to carry it out — Bourke’s signature to the note, his signature to the mortgage, his signature to the transfer of the policy of insurance, and the recorder’s signature to the certificate of mortgage. The forged act of mortgage contains a clause reciting that “ according to the annexed certificate of the recorder of mortgages in and for the city and parish, dated this day, it will appear that said property is free of all incumbrance in the name of the mortgageor.” Now, the brokers knew that the money to be advanced by the plaintiff was to pay off a mortgage then existing, made by Bourke. It is clear-that a circumspect examination of these papers would have developed the fraud intended, and have saved the plaintiff from being made the victim of it. Yet, these defendants chose to rely implicitly upon the integrity of the notary, of whom, after the fraud became known, one of them said he “never thought much of this McC. Jones.” The purpose of McC. Jones in having Bourke’s house and. premises examined without his knowledge or that of his tenants was sufficiently explained after the perpetration of the fraud. His solicitude that the equanimity of Bourke’s tenants should not be disturbed by persons interested in knowing the value of the property, instead of exciting suspicion in the minds of the brokers, was appreciated by one of them at least, for Yan Solingen, when interrogated as to whether or not he advised the plaintiff and her sister, when they went to look at the property, not to go inside of the house because Mr. Bourke was a very proud man and did not wish it known in the neighborhood that he was borrowing money, answered “that McC. Jones stated he did not wish the tenants disturbed any more than was necessary.” To the question: “ Did you tell them that 9” he answered : “ It is very' probable that I told them what Mr. Jones stated to me.”

We have attentively reviewed the evidence found in this suit, and think it sustains the judgment appealed from.

The case of Buddecke v. A. & A. Harris, 20 An. 563, presented on the part of the defendants as sustaining them, is not a parallel case with this one.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Howell, J.,

dissenting. On third November, 1873, plaintiff as holder of a note of $1200, dated twenty-third of August and due at one year from date, and mortgagee in the act of mortgage executed to secure its payment, sued the defendant as maker of said note, and asked that the mortgage be enforced. The defendant answered denying having executed or signed the note or act of mortgage, and denying any indebtedness to plaintiff, whereupon she filed an amended petition alleging that she received the note from Yan Solingen & Carpenter, a firm of brokers, composed of H. M. Yan Solingen and John C. Carpenter, who represented the note to be good .'and genuine, and received from her the full value thereof; that relying entirely upon their skill and correctness as brokers and paying them for their services, she made no personal effort to ascertain the genuineness of the note or mortgage; that they undertook to give her a perfectly good investment for her money, but they were guilty of gross neglect or incompetency; and that by virtue of their employment, and expressly or verbally, guaranteed the note as such, and are bound to her as warrantors, and she called them in warranty.

They filed a general denial, and after hearing evidence the court a qua rendered judgment dismissing the suit as to defendant Bourke, and against Yan Solingen & Carpenter as warrantors for the amount of the note, from which they appealed.

The material facts, according to my estimate of the testimony, are, that one William McC. Jones, a notary public, informed the appellants that Bourke wished to effect a loan of $1200 on a mortgage upon a certain piece of property worth $5000; they stated to him that they knew a party who wished to invest such an amount, but it must be a good and secure investment; the notary gave a description of the property, and the appellants saw and advised plaintiff to examine it, which she did, and expressed herself satisfied as to its value; the notary then left the papers prepared by him with appellants, who advised plaintiff to employ a lawyer to examine the titles, which was done, and the lawyer reported favorably, and the matter was closed at the office of the appellants by the delivery of the note to the plaintiff and the money to the notary. A few days before the maturity of the note plaintiff called on one of the appellants, who advised her, as the note was not in bank, to notify Bourke that it was about to mature. She called on him, never having seen him before, and he denied owing such a note. She informed appellants, and one of them went with her to see the notary; but learned from a Mr. T. S. Elder, with whom it seems the notary kept his office, that the notary had left, and he, Elder, feared it was a trick or fraud similar to those he had perpetrated against other parties, whom he named. Bourke testified that he did not execute the note or mortgage in suit. There is no proof that the appellants bound themselves personally for the debt. The statements of the plaintiff, her sister and father, as to what the brokers said about the defendant, Bourke, and the nature of his credit and the note, do not, in my opinion, make the brokers the guarantors of the notary, or the genuineness of the note and mortgage, as they are not shown to have had any knowledge or suspicion of the fraud; and the question is, are they liable as warrantors or guarantors, as charged 1

A broker or intermediary is he who is employed to negotiate a matter between two parties, and for that reason is considered the mandatory of both. His obligations are similar to those of an ordinary mandatory, with this difference, that his engagement is double, and requires that he should observe the same fidelity to all parties, and not favor one more than the other. He is not responsible for the events which arise in the affairs in which he is employed; he is only, as other agents, answerable for fraud or faults. Except in case of fraud, he is not an-’ swerable for the insolvency of those to whom he procures sales or loans, although he receives a reward for his agency and speaks in favor of him who buys or borrows. Commercial and money brokers, besides the obligations which they incur in common with other agents, have their duties prescribed by the laws regulating commerce. R. C. C., articles 3016, 3020.

In this case, I think the evidence does not establish fraud or fault on the part of the appellants. They with others had confidence in the notary, who up to about the maturity of the note in suit, bore a good reputation in the community, and the transaction was conducted as was usual in similar transactions. They acted with the fidelity of ordinary mandatories, and are not responsible to plaintiff, as charged.

For these reasons I dissent.

Mr. Justice Wyly concurs in this dissenting opinion.

Rehearing refused.


author: Morgan, J.

text:
    No. 3547.
    John S. and Louise Skinner v. William C. Siblet.
    Whether, in this instance, the tutrix was indebted or not to her minor children, is a matter of indifference, inasmuch as their mortgage was not recorded, as required, by the first of January, 1870, but only on the ninth of May of said year.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      Brecmx, Fenner <& Hall, for plaintiffs and appellees. Campbell, Spofford & Campbell, for defendant Sibley. Gustavus Schmidt, for Aglaé Gallier and Esterbrook, called in warranty, and appellants.
   Morgan, J.

Petitioners allege that their mother, their tutrix, owes them $669 22, according to her account filed in the Second District Court of New Orleans on the twenty-third of April, 1859; that on the twenty-sixth of September, their mother acquired a house and lot at the corner of Rampart and Customhouse streets, in this city, which is now in possession of the defendant. They claim a tacit mortgage upon this property to the extent of their mother’s indebtedness to them, and, after due notice, seek to have the same recognized, and ask that the defendant be ordered to pay them the amount due, or, in default thereof, that the property be sold to pay the same.

The defendant answered, calling Mrs. John Gauche, the representative of John Gauche’s estate, from whom he purchased, in warranty. Mrs. Gauche called in Gallier and Esterbrook, from whom John Gauche, purchased.

Mrs. Gallier, representing her husband deceased, denied that there existed at the time of the sale any mortgage on the property in favor of the plaintiffs, and that the mother’s acknowledgment of the same is false and fraudulent.

Esterbrook makes the same answer. There was a judgment in favor of the plaintiffs, and against the warrantors seriatim. Messrs. Gallier and Esterbrook appeal.

Whether the tutrix was or was not indebted to her minor children is a matter of indifference, inasmuch as their mortgage was not recorded by the first of January, 1870. It was only recorded on the ninth of May, 1870.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed as regards the appellants, and that there be judgment in their favor, with costs in both courts.

Behearing refused.


author: •Ludeling, C. J.

text:
    No. 5595.
    State of Louisiana v. Ned Taylor.
    The record shows the aocused was present during the trial, that he was arraigned and pleaded not guilty. Nothing more was necessary.
    The transcript, which is very badly made up, does not show that the accused was asked if he had anything to say why judgment should not be pronounced against him. It is not considered that this ceremony is necessary, though usual and perhaps prudent, in cases not capital.
    The regular venire drawn for the term was set aside on the objections urged by defendant, that it had been drawn under the act of 1873 instead of that of 1868, and the special vmiA'e shows that it was drawn under an order of the judge commanding the same. The defendant’s objection to the drawing oí the jury can not be maintained.
    The refusal oí the judge a quo to permit the aocused to contradict the official acts of the clerk by his parol evidence was proper.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Flagg, J. Criminal case.

      M. Marios, District Attorney, for the State, appellee. Nichols & Fugh, for defendant and appellant.
   •Ludeling, C. J.

The defendant and appellant in the above suit has been tried and convicted of horse stealing, and from a judgment sentencing him to two years’ imprisonment in the penitentiary, be has taken this appeal.

Defendant assigns for error :

First — That the record does not show that the defendant was present in court during the various stages of the trial.

Second — That the record does not show that the accused was asked, before sentence, if he had anything to say why sentence should not be-pronounced against him.

First — We think thé record does show that the accused was present during the trial. He was arraigned and pleaded not guilty. During the course of the trial several bills of exceptions were taken to the rulings of the judge, and after conviction he filed a motion for a new trial.

Second — The transcript, which is very badly made up, does not show that the accused was asked if he had anything to say why judgment should not be pronounced against him. But we do not consider this ceremony necessary, though usual and, perhaps, prudent, in cases not capital. 4 Black. 375; 2 Hale’s P. C. 401, 407, 408; 1 Chit. Cr. Law 720; West v. State, 2 Ala. 212, Archibald C. of Practice, p. 676.

Third — The regular venire drawn for the term was set aside on objections urged by defendant, that it had been drawn under the act of 1873 instead of that of 1868, and the special venire shows that it was drawn under an order of the judge commanding the same.

The refusal the judge to permit the accused to contradict the official acts of the clerk by his parol evidence was proper.

It is therefore ordered that the judgment of the lower court be - affirmed with costs of appeal.

Rehearing refused.


text:
    No. 2804.
    James L. Lobdell v. Bushnell and Others.
    Compensation allowed to experts, auditors and judicial arbitrators is, by article 552 Code of Pratice, to be paid, as well as the taxed costs, by the party cast; and this implies a delay of payment until the termination of the suit.
    APPEAL from the Fourth District Court, parish of Orleans. Iheard, J.

      Elmore & King, for plaintiff and appellant. G. Schmidt, for defendant and appellee. J. H. Grover, for Henry Bezou, auditor of accounts, appointed by the court, and Henry Bezou, m propria persona.

   Ludeling, C. J.

During the progress of this suit the district judge appointed Henry Bezou, auditor, to examine the accounts between the parties. He charged seven hundred and fifty dollars, for which he asked the court to allow him a judgment against the plaintiff and defendants, in solido, in a rule taken in said case, and the court rendered a judgment in his favor for said sum against all the parties, in solido.

From this judgment the plaintiff has appealed. Judgment was rendered in favor of the plaintiff against the defendants, and although one of the defendants succeeded in getting the judgment reversed as to him, still there is a judgment in favor of plaintiff against the other defendants.

In the case of the city of New Orleans, claiming expropriation of property, etc., 19 An. 382, this court said: Compensation allowed to experts, auditors and judicial arbitrators is, by article 552 Code of Practice, to be paid, as well as the taxed costs, by the party cast; and. this implies a delay of payment until the termination of the suit.”

It is therefore ordered that the judgment against the plaintiff be annulled, and that the appellee pay costs of appeal.


text:
    No. 5610.
    The State of Louisiana v. Jerry Gustave et als.
    It sometimes happens that the prosecution, in order to exclude the evidence of a material witness for the defendant, prefers his indictment against both jointly. In such case, according to legal authority, if no evidence whatever he given to affect a person thus unjustly made a defendant, the judge in his discretion may direct the jury to acquit him in the first instance, so as to give an opportunity to the other defendant to avail himself of his testimony.
    !From this authority, as laid down, the inference would seem to he that, when the judge considers the evidence of sufficient weight to question the innocence of the parties sought to he made witnesses for the principal defendant, he should not order their acquittal. The ruling of the judge a quo in this case is in conformity with this doctrine, and must therefore he maintained.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Demng, J. Criminal trial.

      A. O. Bead, district attorney, A. P. Bield, attorney general, for plaintiff and appellee. A. S. Herron, for defendant and appellant.
   Taliaferro, J.

Jerry Gustave, as principal, and James Small, Henry Young and Henry Bowles, as accessories before the fact, were indicted for the murder of one George Connor. The three parties indicted as accessories were acquitted. Jerry Gustave was found guilty of manslaughter and sentenced to hard labor in the penitentiary for the term of ten years. He appeals from the judgment.

It appears from a bill of exceptions in the record that after the State had closed its testimony, the accused, by his counsel, moved the court, there being no evidence to convict Joseph Small, Henry Young and Henry Bowles, accused as accessories, to submit the case to the jury as to those parties, so that they might be acquitted and made competent witnesses for defendant, Jerry Gustave, to use on his trial. This application the court refused to grant.

Again, after the testimony was closed, the accused made a similar application to the court, which was again refused. The complaint is that the defendant was deprived of the benefit of the testimony of these persons and was compelled to submit his case to the jury without their testimony.

After the finding of the jury, acquitting the three parties indicted as accessories and convicting Jerry Gustave, he moved the court for a new trial. The judge of the lower court, in giving his reasons for refusing the application to submit the cases of the parties indicted as accessories to the jury before that of the principal, says he considered the evidence against the said three parties as of sufficient weight and importance to warrant him in overruling the application. The law as found in Archbold’s Criminal Pleading, vol. 1, p. 148, is that: “It sometimes happens that the prosecution, in order to exclude the evidence of a material witness for the defendant, prefers his indictment against both jointly. If, therefore, in such a case, no evidence whatever be given to affect a person thus unjustly made a defendant, the judge in his discretion may direct the jury to acquit him in the first instance, so as to give an opportunity to the other defendant to avail himself of his testimony.”

From' this authority the inference would seem to be that when the judge considers the evidence of sufficient weight to question the'innocence of the parties sought to be made witnesses for the principal defendant, he should not order their acquittal.

It is manifest from the reasons assigned by the judge in this case that his mind, from hearing the evidence, was not satisfied with the innocence of these parties.

We conclude the ruling of the court was correct.

Judgment affirmed.


text:
    No. 3955.
    Hyppolyte Galley v. Leopold Guichard, Tax Collector.
    The State has the power to establish, a police for the various municipal corporations which she has created and which she employs in the administration of government. As she could establish a police department in every parish of the State, no reason can be seen why she could not pass an act establishing a Metropolitan Police district composed of the municipal corporations (cities and parishes) mentioned in the act on the subject, and require the expenses thereof to be apportioned among them severally in proportion to the number of polioemen employed in each. This has been done in the acts of 1868 and 1869, establishing and regulating the Metropolitan Police district.
    It is not pretended that plaintiff is required to pay a greater tax than any other citizen in the parish of St. Bernard, nor is there any proof showing that the apportionments assessed by the polios commissioners for the years 1869 and 1870 are not just and in proportion to the number of officers and policemen assigned to police duty in said parish during said years. So that plaintiff, not being required to pay an unequal tax for the expenses of policemen aotually employed for the public welfare in the parish of St. Bernard, has no cause to complain; none of his constitutional rights have been violated.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J.

      Sambola & Dueros, for plaintiff and appellant. J. B. Beelcwith, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment dissolving the injunction sued by him to restrain the collection of the Metropolitan Police tax assessed to Mm by the police jury of the parish of St. Bernard for the years 1869 and 1870.

The most important objection to this tax set up by him, is that it is not equal and uniform throughout the Metropolitan Police district. That it is equal and uniform throughout the parish of St. Bernard is not doubted.

That the State has the power to establish a police for the various municipal corporations which she has created, and which she employs in the administration of government, can not be doubted. Indeed, she can pass any law, whether wise or. unwise, provided it is not repugnant to the constitution. As she could establish a police department in each parish, we see no reason why she could not pass an act establishing a Metropolitan Police district composed of the' municipal corporations (cities and parishes) mentioned in the act, and require the expenses thereof to be apportioned among them severally in proportion to the number of policemen employed in each. And this we understand has been done in the acts of 1868 and 1869 establishing and regulating the Metropolitan Police district. One clause of section 25 of act No. 92 of the acts of 1869 provides: “That such estimate (by the police commissioners) shall be accompanied by a written apportionment by said board of the proportion of expenses applicable to each of the cities and parishes in the Metropolitan Police district in ratio of the number of police officers and men assigned by said Metropolitan Police Board for police duty in said cities or parishes within the Metropolitan Police district.”

Another clause thereof provides that “ The said estimate and apportionment shall be submitted to the mayor of the cjjfcies and police juries of the parishes within the said Metropolitan Police district, to consider the same; and if the said mayor or police juries shall object in writing to such estimate and apportionment, or to any portion thereof, and so notify or cause to be notified the said board of commissioners, it shall be the duty of the latter to carefully revise the same and consider the said objections.” * * *

Now where is there any violation of that provision of the constitution requiring uniformity and equality in taxation ? It is not pretended that plaintiff is required to pay a greater tax than any other citizen of the parish of St. Bernard; nor is there any proof showing that the apportionments assessed by the police commissioners for the years 1869 and 1870 are not just, and in proportion to the number of officers and policemen assigned to police duty in said parish during said years. There is no proof that the parish of St. Bernard ever complained- of the apportionments and made a written application to the police commissioners for the revision of said apportionments. There being no proof on the subject, the presumption is the officers have done their duty; and the apportionments are just- and in proportion to the number of officers and men performing police duty in the parish of St. Bernard. Now if the people of St. Bernard are required to pay equally and uniformly for the expenses of the officers and men employed in police duty in said parish, what is the difference as to how the State has employed or authorized the employment of said policemen ?

Whether the State selected as her agent for the administration of police, the police jury, or created a special corporation, the board of Metropolitan Police, for the purpose of employing men and administering this part of government, is immaterial. It is a matter of legislative discretion. So plaintiff is not required to pay an unequal tax for the expenses of policemen actually employed for the public welfare in the parish of St. Bernard, he has no cause to complain; none of his constitutional rights have been violated.

The other questions raised by plaintiff are sufficiently answered in the written opinion of the judge a quo and nothing further need be said in regard to them.

Judgment affirmed.


text:
    No. 4373.
    Louis Dufilho v. Henry Mayer.
    The defendant being a possessor in good faith owes rent only irom the institution of this suit, and is entitled to his claim for the value of the improvements against the owner of the property from the time he made them, with legal interest.
    APPEAL from the Fifth District Court, parish of Orleans. Lemmont, J.

      J. JO. Tissot, for plaintiff and appellee. Budd & Grover, for defendant and appellant.
   Ludeling, C. J.

This is a petitory action for three lots of ground and the improvements thereon and rents or damages, against the defendant, who is alleged to be a possessor in bad faith.

The defendant filed a general denial, and further alleged that he purchased the property from Henry Zander, by act passed before A. Dreyfous, notary of this city, in 1867; that Zander had bought from F. Lacroix in 1866, by act passed before A. E. Bienvenu; that Zander and Lacroix were in full possession of the property from the date of their respective purchases. That he has improved the buildings on said lots and made other repairs, and made a fence and other improvements, worth five hundred and ninety-eight dollars. He alleges that Zander is bound in warranty to him, and Lacroix to Zander; and that he is specially subrogated to the rights of Zander against Lacroix, and prays for judgment accordingly, in the event judgment should be rendered against him for the property. He further prayed that the plaintiff’s demands be rejected with costs.

There was judgment in favor of the plaintiff for the lots, and for $150 general damages, up to September, 1867, and ten dollars per month thereafter, until plaintiff be put in possession; and allowing Mayer three hundred dollars for the improvements.

Mayer has appealed.

It appears that in 1866 Lacroix sold the lots to Zander, who sold them to Mayer in 1867, by notarial acts in due form, and that both Zander and Mayer took actual possession of the property and exercised acts of ownership over the same.

It appears further that after the sale to Zander, and before his sale to Mayer, Lacroix told Zander he had sold the property to him in error, having previously sold the same property to another, and offered to return to him the money and notes executed, given for the property, but Zander refused to take it, and sometime after this Zander sold to Mayer. There is no evidence to show that Mayer knew of this. After Mayer bought he made useful improvements and necessary repairs on the property, which are proved to be worth three hundred dollars. It is also proved that after Mayer had bought he received a letter from the attorney of plaintiff stating that the property belonged to plaintiff, and that damages and rents would be claimed of him for the property. The plaintiff has proved his title to the property.

Both Zander and Mayer held under titles perfect in form, and there is nothing in the record to show that they did not believe they were the owners.

The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” C. C. 3451.

We think, therefore, that Mayer was a possessor in good faith, and owes rents only from the institution of the suit. C. C. article 503. And we think the evidence will not authorize more than eight dollars per month as rents. The defendant is clearly ehtitled to a judgment against his vendor in warranty for the price paid, and Zander is entitled to a judgment against Lacroix for the price he paid, with legal interest; and under the act specially subrogating Mayer to Zander’s rights against Lacroix there should be judgment in favor of Mayer against Lacroix for the price paid by Zander. And he is entitled to his claim for the value of the improvements against the owner of the property with legal interest from the time he made them.

It is therefore ordered that the plaintiff be declared the owner of the lots described in the petition with the improvements thereon, and that he have judgment against the defendant Mayer for rents at the rate of eight dollars per month from judicial demand and costs of the lower court. It is further ordered that the defendant Mayer have judgment against his vendor, Henry Zander, for six hundred and eight dollars, with five per cent, per annum interest from the twenty-eighth of February, 1867; and in default of said Zander returning to said Mayer his notes given for the credit portion of the price, within thirty days after this date, that he have judgment for the further sum of two hundred and two dollars, with six per cent, per annum till paid, and costs of suit.

It is further ordered that Henry Mayer, subrogated to the rights of Henry Zander, recover judgment against Francois Lacroix for forty-eight dollars, cash portion of the price, with five per cent, per annum interest till paid; and in the event the said Lacroix should fail to return the notes given Zander for the credit portions of the price, within thirty days after this judgment, that he recover judgment against Lacroix for two hundred and eight dollars, the amount of said notes, with six per cent, per annum interest from the date of the sale to Zander, and costs of suit. It is further ordered that appellees pay costs of appeal.


text:
    No. 5379.
    The State of Louisiana v. Henry Hamilton.
    The judge a quo was asked to charge the jury that “if the jury believed that the defendant Hamilton was handcuffed at the time he was presented to the deceased for recognition, then such recognition was not made in conformity to law and must be rejected.” The judge did not err in refusing the charge. The fact that the defendant may have been handcuffed, could have no effect upon the ability of the party wounded to recognize Mm.
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      A. P. Field, Attorney General, John McPhelan, district attorney, for the State, appellee. S. J. A. Smith, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to hard labor for life in the State penitentiary for the crime of murder. On the trial in the lower court, his counsel asked a juror, presented and sworn on his voire dire: “ Do you believe in a future state of rewards and punishments ? ” To which the State objected and the objection was sustained, but the ground of objection is not contained in the bill of exceptions, and besides the name of this juror does not appear among those by whom the defendant was tried. Under these circumstances the bill can not avail the defendant. But we are not aware that the question presents a legal cause for disqualifying a juror, and we have not been referred to any authority shown by defendant’s counsel.

The judge a quo was asked to charge the jury : ‘‘ That if the jury believed that the defendant! Hamilton was handcuffed at the time he was presented to the deceased for recognition, then such recognition was not made in conformity to law and must be rejected.”

We think the judge did not err in refusing the charge. There is no law, within our knowledge, that makes a recognition under such circumstances objectionable. The fact that the defendant may have been handcuffed, could have no effect upon the ability of the party wounded to recognize him. We can find no error in the proceedings below requiring our action.

Judgment affirmed.


author: Morgan, J. Morgan, J.

text:
    No. 3325.
    Mathilde Morrison v. Citizens’ Bank of Louisiana and Sam Smith & Co.
    The plaintiff’s claim is the result of a judgment which she obtained againt her father, which judgment gives to her a legal mortgage over all his immovable property, dating from the third of May, 1852. This judgment was inscribed on the sixteenth of April, 1868.
    A judgment which recognizes a minor’s claim and mortgage, and which is duly recorded prior to the year 1870, does not come under the 123d article of the constitution which declares “that tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first day of January, 1870, unless duly recorded,” and the act No. 95 of the Legislature of 1869, which provides for carrying out the provisions of the aforesaid article of the constitution.
    "When the article 123 of the constitution was adopted, the plaintiff’s rights were perfect. She had a tacit mortgage upon her father’s property, and the evidence was a duly recorded judgment of a competent court. There was no necessity for her to record it again. The article did not refer to her; she had complied with its requisites.
    The rendering and signing of the plaintiff’s judgment against her tutor, out of term time, did not, under the circumstances of the case, make it a nullity. It was agreed between the parties that the judge who tried the case should take it under advisement, render judgment, and sign it after the court should have adjourned. The parties were competent to make the agreement, and the judgment having been rendered in conformity to it, is good.
    The judgment of separation of property and dissolution of the community in a suit instituted by plaintiff’s mother against her father, having never been executed or sought to be executed, was nothing, and did not affect the community.
    The proceedings in which the plaintiff’s father obtained leave of the court to give a special mortgage in lieu of the tacit one existing in favor of the minor, did not become final, because the mortgage after it was executed was not approved by the judge, and because it was not recorded in the parish where the property mortgaged was situated until after this suit was instituted, some ten years after the moregage was given.
    The vendor’s privilege has no priority in this case over the plaintiff’s tacit mortgage. The mere filing of the act of sale, which was passed in New Orleans, and the recording of it among the notarial acts of his office hy the recorder of the parish of Pointe Coupee, was not the recording required by law in order to give it effect as a mortgage, or to preserve the privilege which it carried with it. Although subsequently recorded in the proper books of the recorder of mortgages, it was not done within the time required to keep in existence the vendor’s privilege, but operated only as a mortgage from the time it was recorded.
    Plaintiff's tacit mortgage attached to the property purchased by her father from the day he purchased. The vendor’s privilege was superior to the tacit mortgage so long as the privilege .existed; but when the privilege ceased to exist, then the tacit mortgage was in force against it, and it had its effect without being recorded. "When therefore the act of sale was recorded, it operated as a mortgage from that date, hut at that time the property was burdened with the plaintiff’s tacit mortgage, and the conventional mortgage was second to it in rank.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Charles F. Schmidt, for plaintiff and appellant. A. Pitot, Farrar and Montgomery, for the Citizens’ Bank of Louisiana, defendant and appellee. T. Himton, Cooley and F. Phillips, for Sam Smith & Co., defendants and appellees.
   Morgan, J.

The plaintiff alleges that she is a creditor of her father, Jacob EL Morrison, for sums amounting in the aggregate to $16,275 22, exclusive of interest; that said indebtedness is established by a judgment rendered on the first April, 1868, by the Seventh Judicial District Court, parish of Point© Coupee, in favor of petitioner and her sister Camille on their opposition to the account of tutorship rendered by their father; that by said judgment his aggregate indebtedness to herself and sister was fixed at $17,994 20, exclusive of interest, half of which was due to petitioner, and the other half to her said sister; that the latter having died since the rendition of said judgment, petitioner’s share thereof, owing to the portion by her inherited of her sister, amounts as aforesaid to $16,275 22, besides interest. That for the payment of the said sum, in capital and interest, the petitioner has a legal mortgage on all the immovable property of the said J. H. Morrison, dating and taking effect from the third day of May, 1852, as recognized and decreed in the judgment aforesaid, which was duly recorded in the books of the recorder of mortgages for the parish of Pointe Coupee, and stands inscribed thereon since the sixteenth April, 1868.

Subsequent to the year 1852, Morrison purchased several tracts of land in the parish of Pointe Coupee. In February and April, 1860, these lands were mortgaged to the Citizens’ Bank.

One of the tracts of land was purchased from G. P. Ware, on the seventh August, 1856. Part of the purchase price was represented by notes of which Smith & Co. held $24,170 66.

Plaintiff prays that the plantation referred to be decreed subject to her mortgage; that her mortgage be declared to be superior in rank to any and all the mortgages which the Citizens’ Bank and Smith may have, and that she be entitled to enforce her mortgage claims by the seizure and sale of the plantation in preference to, and with priority over, any claims held or set up by the bank and Smith & Co.

The bank answers:

First — That the plaintiff’s judgment against her tutor is null, because it was rendered and signed in vacation.

Second — That if good between the parties, it was rendered by consent, against law and facts, and for the purpose of defeating the respondent’s mortgage claim, and that they are not bound by the same. Further answering, the bank avers the validity of its own mortgage, and denies the tacit mortgage claimed by the plaintiff.

Smith & Co. make- substantially the same defense, alleging further that the mortgage they hold results from the sale of the property by Ware to Morrison, which entitles them to the vendor’s privilege, which, they say, ranks the minors’ mortgage.

Subsequently both defendants filed a peremptory exception to the plaintiff’s demand, on the ground that she has no cause of action, the same having been destroyed by the nonrecording of her mortgage according to law.

First — As to the rendition and signature of the judgment out of term time: It was agreed that the judge who tried the case should take it under advisement and render judgment and sign it after the court should have adjourned.. The parties were competent to make the agreement, and the judgment having been rendered in conformity therewith is good. The cases of Simonds v. Leovy, 21 An. 306, and Hernandez v. James, 23 An. 483, are not authority for the defendants. In neither of them had the judgment been rendered and signed in vacation by consent.

Second — As between the parties, whether rendered by consent or not, the judgment was good. Collusion or fraud would destroy its effects as to third parties, but the collusion or fraud must be established by those who allege it. Of this there is no evidence. It is shown op the part of the defendants that the mother of the plaintiff sued her husband (plaintiff’s father) for a separation of property, and that she obtained judgment against him dissolving the community, and condemning him to pay her a sum which would make the plaintiff’s share in her estate a little over $2000. But this judgment was never executed, or sought to be executed. If not executed, or sought tó be executed, it was nothing, and did not affect the community. 23 An. 572; 1 An. 308; 11 La. 533; 1 R. 432; 4 An. 513; 12 An. 193.

Third — The next question is, has the plaintiff a tacit mortgage 1 It is claimed not, by the defendants, because, they say, her father gave a special mortgage in lieu thereof.

On twenty-ninth December, 1859, the plaintiff’s father applied to the court for permission to substitute a special -mortgage for the tacit mortgage which his children had to secure their rights, the property upon which he proposed to place the special mortgage being described in his petition. A family meeting was ordered to be convened for the purpose of advising whether or not the property offered to be specially mortgaged was sufficient to secure the minors’ rights in principal and interest.

On the same day the family meeting convened. They declared that the property offered was sufficient, and that they had no objection that the general mortgage should be changed into a special mortgage upon the property described in the tutor’s petition. These proceedings of the family meeting were duly homologated by the judge, and the tutor, by the judgment of homologation, was allowed to give the special mortgage on the property offered by him. This on the sixteenth January, 1860.

On the seventeenth January, 1860, the mortgage was duly executed, and it was recorded on the same day.

But here it is contended that the special mortgage, after it was drawn up, was never presented to the judge for his acceptance and sanction, and that, this is contemplated by the act of 1830 and by article 3309 of the Code of 1825.

The aet of 1830 declares that in all cases where special mortgages shall be given by curators or tutors in lieu of the legal mortgage existing in such cases, as recognized by law, it shall be the duty of the judge receiving such special mortgage to cause the property proposed to be mortgaged to be appraised by experts in the same manner as is provided when adjudications of the property of minors are made to the surviving father or mother,'and the said judge shall in no case accept the said mortgage unless the value of the property so appraised shall ‘exceed, exclusive of all prior liens, privileges or mortgages, the amount of the debts or rights of the minors intended to be secured by the said special mortgage, by at least twenty-five per cent, in addition to the amount of the said matter, and including- all interest which may probably accrue.”

Article 3309 of the Code of 1825 declares that “ the judge shall receive the special mortgage offered if he thinks it sufficient, and with the advice ofthe family meeting in the case of a minor or person under interdiction.”

It remains for us now to determine whether the requirements of the laws which we have quoted have been complied with in the present case. Counsel for appellant contends that they have not, because the special mortgage was never presented to the judge for his acceptance and sanction. His position is, that after the mortgage was given it should have been accepted. In support of his position he cites the case of Lesassier v. Dashiell, 17 La. 204. In that case “ no experts were appointed, no previous liquidation of the vendor’s rights was made, and the act of special mortgage was passed by a simple notarial act, which never was accepted by any one, not even by the under tutor; it was not received by the judge as required by article 3309 of the Louisiana Code, and never obtained the definitive sanction of the court of probates, so as to give it the effect contemplated by the decree of homologation.”

In the present instance the rights of the minors had, as it is recited in the petition of the tutor when he asked leave to grant a special mortgage, been ascertained by a judgment rendered on the thirtieth April, 1845, by the Fifth District Court of New Orleans, the then domicile of the parties. The property which the tutor desired to mortgage was described. A family meeting was convened for the purpose of deciding whether the interests of the minors would be protected. Experts were appointed to determine the value of the land proposed to be mortgaged. The family meeting assembled; the experts reported, and it was determined that the security offered was sufficient to protect the minors’ interest, and a mortgage thereon, to take the place of the-general one, was recommended. These proceedings of the family-meeting- were submitted to the judge, who approved them and ordered’ the mortgage to be executed and accepted. It was executed, and it was recorded. In point of fact, therefore, every essential of the law was complied with. The only matter for discussion is, whether after-all the proceedings above related liad taken place, it was still indispensably necessary that the mortgage, after having been executed,should have been presented to the judge, and been by him accepted before the general mortgage was thereby released. We think not. We think that when the judge, under the facts of this case, ordered the mortgage to be executed, he accepted it in the sense of the law, and that all the requirements of the statutes for the protection of minors were complied with. An inspection of the proceedings would, we think, justify any one who proposed to deal with plaintiff’s tutor, in believing that no general mortgage rested upon his property.

This view of the case renders it unnecessary that we should examine the other questions presented.

Judgment affirmed.

On Rehearing.

Morgan, J.

The issues presented by both plaintiff and defendants are sufficiently set forth in the opinion heretofore prepared by us.

In that opinion we stated that the plaintiff’s father was, on the sixteenth of January, 1860, allowed to give a special mortgage on the property offered by him; that on the seventeenth of January, 1860, the mortgage was executed and was recorded on the same day. In this there was error. The mortgage was executed - in the parish of Pointe Coupee, and was recorded in that parish on the same day. The property subjected to the mortgage was situated in the parish of West Feliciana. It was not registered in that parish until some ten years after its date, and subsequent to the institution of this suit.

The plaintiff’s claim is the result of a judgment which she obtained against her father, which judgment gives to her a legal mortgage on all his immovable property dating from the third of May, 1852. This judgment was inscribed on the sixteenth of April, 1868. Plaintiff contends that this is a recognition of her tacit mortgage; that it dates back to the year 1852, and that it takes precedence over the bank’s mortgage, acquired subsequent thereto. The bank contends that it was only a judicial mortgage, if, in reality, it has any existence at all, “because the recording of her judgment does not cover the default of inscription of her mortgage before the first of January, 1870.”

The question we are called upon, for the first time, to decide is whether a judgment which recognizes a minor’s claim and mortgage, and which is duly recorded prior to the year 1870, comes under the one hundred and twenty-third article of the constitution, which declares that tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first day of January, 1870, unless duly recorded,” and the act No. 95 of the Legislature of 1869, p. 115, which provides for carrying out the provisions of the article of the constitution quoted.

We think not. The object of the framers of the constitution in adopting that article is apparent. It was to do away with the effects of mortgages not recorded — those mortgages which rested upon property and which were out of sight, and against which protection was almost impossible. The convention therefore declared that no tacit mortgage should rest upon any property in the State after the year 1870, unless it had been duly recorded.

Now, when this article was adopted the plaintiff’s rights were perfect. She had a tacit mortgage upon her father’s property, and the evidence thereof was a judgment of a competent court, which judgment was duly recorded. There was no necessity for her to record over again the judgment which she had obtained. The constitution says that tacit mortgages shall have no effect after a certain date unless duly recorded. Here her mortgage was duly recorded, and this is all that it was necessary she should do. The article did not refer to her. She had complied with its requisites. It only applied to mortgages which had not been recorded.

Upon the two first points discussed in our former opinion our mind remains unchanged.

The next point to determine is whether the plaintiff had a tacit mortgage upon her father’s property. Defendants say she had not, because a special mortgage had been substituted therefor. The facts and circumstances under which the special mortgage was given are detailed' in our former opinion, and it is needless to restate them, except to remark that on the twenty-ninth of December, 1859, plaintiff’s father asked leave of the court to grant a special mortgage to take the place of the tacit one; that his petition was submitted to a family meeting, who recommended it; that the property sought to be mortgaged was designated, and that the proceedings of the family meeting which recommended the acceptance of the same and the sufficiency of the security were homologated. The mortgage was executed and it was recorded. It was executed in the parish of Pointe Coupee and recorded on the same day. But the property mortgaged was situate in the parish of West Feliciana, and it was not recorded there, as we have seen, until years after its execution.

Plaintiff contends that all the proceedings which resulted in this mortgage were worthless; that her tacit mortgage was never released, because the judge never accepted the same. In other words, she contends that after her father had prayed to be allowed to execute this mortgage; after a family meeting had recommended it; after the proceedings of the family meeting had been approved; after the judge had ordered the execution of the mortgage, it was still necessary that the judge should approve of its execution; and, in default thereof, that, the whole proceedings are null, and that her tacit mortgage remained undisturbed.

This question was discussed in the opinion heretofore delivered, to which we refer. We there came to the conclusion that the law had been complied with. Further examination and reflection has satisfied us that we erred. The proceedings did not become final because the mortgage, after it was executed, was not approved by the judge, and because it was not recorded in the parish where the property mortgaged was situate until after this suit was instituted, some ten years after the mortgage was given.

In so far, then, as the Citizens’ Bank is concerned, our former judgment was erroneous. Up to this point the same reasoning will apply as well to Smith & Co. as to the Bank. But Smith & Co. say they hold, notes due by the plaintiff’s father as part of the purchase price of the property now sought to be subjected to the minor’s mortgage, and that as the property was purchased by the father subsequent to the plaintiff’s mother’s death, the vendor’s privilege attaches, and that it is not affected by the tacit mortgage.

The sale from Ware to Morrison was made on the seventh August, 1856. The sale was made by public act, passed before a notary public in New Orleans. It was sent to the parish of Pointe Coupee, where the property sold is situate. The recorder certifies that it was recorded among the notarial acts of his office, but that he finds no inscription of the same in any of the books of mortgages.

The mere filing of the doeument and recording it among the notarial acts in his office was not the recording required by law in order to give it effect as a mortgage or to preserve the privilege which it carried with it.

The act was properly recorded in the books proper of the recorder of mortgages, on the twelfth of June, 1866.

“Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness as provided by law.” C. C. 3273 [3240.] At the time of these transactions the law was that privileges were valid against third persons from the date of the act, if it had been duly recorded, that is to say, within six days of the date, if the act has been passed in the place where the registry of mortgages is kept, or adding one day more for every two leagues from the place where the act was passed to that where the register’s office is kept. C. C. 3240.

Article 3241 provides that when the act on which the privilege is founded has not been recorded within the time required in the preceding article, it shall have no effect as a privilege,- that is to say, it shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage in the meantime, which they have recorded before it; it shall, however, still avail as a mortgage, and be good against third persons from the time of its being recorded. And the law now is (C. C. 3274) that no privilege shall have effect against third persons, unless recorded in the manner required by law, in the parish where the property to be affected is situated. It confers no preference on the creditor who holds it, over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was entered into.

The act of sale was not recorded within the time prescribed by the-law as above quoted. The vendor’s privilege, therefore, does not exist.

But the recording of the act operated as a mortgage from the time it was recorded. It was recorded on the twelfth June, 1866. Plaintiff’s judgment against her father was recorded in 1868. When did her mortgage attach? From the date of the recording of her judgment? or from the date when her father’s indebtedness attached ?'

Plaintiff’s tacit mortgage attached to the property purchased by her father from the day he purchased it. Lombas v. Collet, 20 An. 79. The vendor’s privilege was superior to the tacit mortgage, so long as the privilege existed; but when the privilege ceased to exist, then the tacit mortgage was in force against it, and it had its effect without being recorded. When, therefore, the act of sale was recorded, it operated as a mortgage from the date upon which it was recorded, but at that time thé property was burdened with the plaintiff’s tacit mortgage, and the conventional mortgage was second to it in rank.

It is therefore ordered, adjudged and decreed- that the judgment heretofore pronounced by us be set aside, and it is now ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed.

And it is further ordered, adjudged and decreed that the plaintiff, for the amount of her rights and claims against her father, Jacob H. Morrison, to wit:

Mrst — For the sum of $10,691 55, with five per cent, interest per annum on $4178 85 from the third of February, 1857, until paid! on $1350 51 from the eighteenth December, 1861, until paid; on $2138 30 from twenty-second of February, 1863, until paid; and on $3024 14 from the first of April, 1868, until paid ; for which sum of $10,691 55 she is entitled to enforce the payment by execution' upon the prop'erty described in her petition; and

Second — For the eventual payment to her of the sum of $5583 67, amount of which her father has inherited the usufruct, and that for all said sums and interest the legal mortgage of the plaintiff, and which is now recognized and adjudged to exist on the property of Jacob H. Morrison and which affects the property described in the petition, be decreed to be superior in rank to the mortgages which the Citizens’ Bank and Samuel Smith & Co. may have, and to any privilege they pretend to have on said property ; and it is further ordered, adjudged and decreed that plaintiff is entitled to enforce her said mortgage claims by the seizure and sale of said property in preference to and with priority over any claims held or set up by the said Citizens’ Bank and Samuel Smith & Co., and that defendants pay costs in both courts.


author: Taliaferro, J:

text:
    No. 4036.
    A. Roos & Co. v. Merchants’ Mutual Insurance Company of New Orleans.
    It is a settled question that in an action on a valued policy of insurance the plaintiff is not put on proof of his interest in the object insured by a plea of the general issue.
    In this case, however, the evidence shows that the plaintiffs had an insurable interest in the stock of goods belonging to Marks, on which they took a fire policy. They furnished Marks with goods, and upon their credit and responsibility enabled him to obtain goods from others and subsequently paid'for them. The plaintiffs’ sole reliance, it seems, for payment, rested upon the fidelity and success of Marks’ business. The danger of loss by the destruction of the store and Marks’ stock of goods on hand constitutes a sufficient interest in the plaintiffs to sustain the policy.
    The plea that the policy became void by the plaintiffs taking insurance on the same property in the New Orleans Mutual Insurance Association without notice to defendants is not tenable. The other insurance taken on the property was in the interest of a different party.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      JE. II. McOaleb, for plaintiffs and appellees. A. Voorhees, for defendant and appellant.
   Taliaferro, J:

The plaintiffs sue on a fire policy taken out by them on a stock of goods belonging to one J. Marks then keeping a store at Meridian, Mississippi, and selling such goods as are usually kept in country stores. This insurance was made subject to wbat is called “the three-fourths country clause.” The plaintiffs allege in their petition “ that at the time of effecting said insurance and taking out said policy on the stock of trade therein mentioned, your petitioners had an insurable interest in said property, and that they were also the agents of J. Marks, the party therein mentioned, and took out said policy for the purpose of covering their own interest as well as the interest of their said principal.”

The-defendants deny the allegations contained in the plaintiffs’ petition, except the execution of the policy of insurance, and specially aver that the policy is null and void by reason of the violation by the plaintiffs of the clause or warranty that “if the said insured or their assigns shall hereafter make any other insurance on the same property, and shall not within all reasonable diligence give notice thereof to this corporation and have the same indorsed on this instrument or otherwise acknowledged by them in writing, this policy shall cease and be of no effect.” The defendants aver that in violation of this clause in'the policy the plaintiffs did, on the twelfth of September, 1870, insure in the New Orleans Mutual Insurance Association the same property without having given notice thereof to the defendants, who did not cause any indorsement to be written on the said policy, and never made any acknowledgment of the same in any manner; that the policy issued by them became therefore null and without effect. The plaintiffs, had judgment in their favor for $3099 69 with legal interest from second September, 1871, until paid. The defendants appealed. Frank & Haas, another commercial firm, took out on the same day, twelfth September, 1870, a policy of insurance to the amount of four thousand dollars on the same stock of good3 from the New Orleans Mutual Insurance Association, the same being effected,' as it seems, through J. Marks as their agent. The policy recites that “the New Orleans Mutual Insurance Association * * * do insure Frank & Haas, account of J. Marks, agent.” After the ñre occurred and the loss was established, this company paid the amount of the insurance, and the receipt of the money written across the face of the policy is signed J. Marks, agent.

The defense in this case is placed solely on the ground that a double insurance was made by the plaintiffs without notice to the defendants. The counsel of the defendant objects that Roos & Company have not set out in their petition the value and amount of their interest in the property insured. This is answered by the plaintiffs that an insurable interest in them not being denied in their pleadings and not being put at issue, they were not required to set out the value and amount of that interest. In the case of Kathman v. The General Mutual Insurance Company, 12 An. 35, and in that of Kennedy v. New York Life Insurance Company, 10 An. 809, it was settled, after a very elaborate examination of the subject, that in an action on a valued policy of insurance the plaintiff is not put on proof of his interest in the object insured by a plea of the general issue.

However this may be, the evidence clearly shows an insurable interest in the plaintiffs. They furnished Marks with goods, and, upon their credit and responsibility enabled him to obtain goods from others and subsequently paid for them. The plaintiffs’ sole reliance as it seems, for payment, rested upon the fidelity and success of Marks in business. The danger of loss by the destruction of the store and Marks’ stock of goods on hand constituted in our opinion a sufficient interest in the plaintiffs to sustain the policy.

The plea that the policy became void by the plaintiffs’ taking insurance on the same property in the office of the New Orleans Mutual Insurance Association without notice to the defendants is not tenable. The plaintiffs took no insurance from that company. An insurance was taken from it on the same property, but in the interest of a different party. Roos & Co. had no interest in that insurance. Prank & Haas were the insured parties in that case.' The money paid on that policy was paid to them. Marks, it seems clear, had no interest or rights under either policy. In the case of Prank & Haas he acted as their agent. In the case of Roos & Co. the policy shows that they were the only parties insured. Therefore the objection that the interest of Marks in that policy was transferred to plaintiffs is without weight. Marks had no interest under that policy to transfer. The act of- transfer amounted to nothing. The loss was fully established, and we conclude from the entire evidence that the decree of the lower court was properly rendered.

Judgment affirmed.

Rehearing refused.

Justices Howell and Morgan dissent in this case.