author: LECHE, J.

text:
    No. 336
    First Circuit
    GOODMAN & MACKIE v. FAITHORN
    (December 4, 1928. Rehearing Refused.)
    (November 10, 1928. Opinion and Decree.)
    E. S. Muse, of St. Francisville, attorney for plaintiffs, appellants.
    Joseph L. Golson, of St. Francisville, attorney for defendant, appellee.
   LECHE, J.

Plaintiffs are architects and they sue defendant for three hundred sixty dollars, for a commission which they allege themselves entitled to, under a contract with the defendánt.

The defense in substance, is that defendant’s wife, Mrs. Faithorn, entered into a written contract with the plaintiffs, to draw up a plan with specifications of a country home which she intended to build with her own separate funds and that she paid plaintiffs the, sum of thirty dollars in advance. That no plan was ever agreed to or approved by her, that she subsequently abandoned the idea of erecting such building and that in any event, defendant had nothing to do with such contract and negotiation and is in no manner liable to plaintiffs for the claim upon which they ■ -brought. the present suit.

Defendant further represents and- he testifies that at the time the alleged contract is said-to have been entered into, he was suffering from an affection of the eyes and was in St. Louis, Missouri, and in Oklahoma. ' That he was aware that his wife wished to build a home with the proceeds of a legacy which she was to receive from the succession of a deceased relative. That he discussed the matter with, her and on his return, once had an interview with one of the plaintiffs in the City of Baton Rouge with regard to certain specifications in the plan of the building. That he acted as an adviser to his wife, but never by promise or otherwise, bound himself in favor of plaintiffs.

The District Court dismissed plaintiffs’ demand and. they have appealed.

Mrs. Paithorn says as a witness, that there was a written contract signed by her and Miss Paithorn, her daughter, testifies to the same effect. Mackie, one of the plaintiffs, who negotiated the business, positively denies that there ever was a written contract. Mrs. Paithorn, of course, is not a party to this suit. She says that no copy or duplicate of the contract was handed to her, that she saw the tentative plan, but never accepted the same. She further says that she had intended to invest $5500.00 in a home, and no more.

Plaintiffs’ demand is for the value of the plan and specifications which they drew up, and for a commission of 6 per cent on the estimated cost of the building. They have offered and filed in evidence several letters written by Mrs. Paithorn and her daughter, to themselves, in which may be found expressions indicating that the writers were acting at the behest and on behalf of defendant. But these expressions may be explained without implying any liability on the part of defendant towards plaintiffs.

The evidence is very conflicting and leaves the mind almost bewildered as to what in reality, are the facts. One thing is certain and that is, that appellants have not made a showing in this Court, to justify us in destroying the presumption of correctness which attaches to' a judgment on appeal, where only questions of fact are involved. The trial Judge thought that plaintiffs had failed to prove their claim by a preponderance of evidence and we agree with hirq.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: LECHE, J. LECHE, J.

license: Public Domain

text:
    No. 350
    First Circuit
    DUPRE v. ENGELHART
    (November 10, 1928. Opinion and Decree.)
    (December 4, 1928. Rehearing Refused.)
    J. R. Fridge, of Baton Rouge, and J. P. Wallace, of Baton Rouge, attorneys for plaintiff, appellee.

      Victor A. Sachse, of Baton Rouge, attorney for intervenor, appellant.
   LECHE, J.

Plaintiff sues defendant for rent and in order to secure the collection of his claim, provisionally seized certain property upon which he claims a lessor’s lien and privilege. The claim for rent is not contested by Engelhart and the only matter in dispute in this case, is whether plaintiff has a privilege! for rent upon the property which he 'provisionally seized.

The Louisiana Bread Company intervened in the suit and it opposes the seizure on the ground that the seizure was made of its property and not of that of Engelhart and that the property at the time of seizure, was not upon the leased premises and was in its possession upon its own premises. It is an admitted fact that the property had at one time been on the leased premises, but had been removed less than fifteen days before the seizure. It seems further to be conceded as a matter of law that the property of third persons which sometimes is affected with a lessor’s privilege under C. C. Art. 2707, is freed of such privilege after the property is removed from the leased premises. Merrick, Race & Foster vs. LaHache, 27 La. Ann. 87. So that the only question to be decided in this court is whether the seized property belonged to Engelhart or to the intervenor and third opponent.

The District Court found that the seized property belonged to Engelhart and maintained the provisional seizure. Intervenor and third opponent has appealed from that judgment.

Our. analysis of the evidence convinces us that the property did belong to Engelhart. It seems that originally it belonged to one Kelly who conducted a bakery business, that at a public sale it was adjudicated to the Paille Bakery Company, that the Paille Bakery Company was merged into the Louisiana Bakery Company, and that the property thus came into the ownership of the intervenor and third opponent. This is not controverted.

Shortly thereafter Engelhart wished to engage in the bakery business, and with the assistance and co-operation of the president of the Louisiana Bakery Company, obtained the property in contest together with a lease of a bakery shop belonging to plaintiff. The negotiations for the lease were conducted by the president of the Louisiana Bakery Company and his name appears as a witness to the written contract of lease. A significant clause in the lease is that the premises are to be used and occupied for a “bakery owned by the lessee,” Engelhart. And there is another clause warranting that the property which consists of a bakery outfit, is free of any chattel mortgages of record. These clauses corroborate the statements in plaintiff’s testimony to the effect that he made careful inquiry into the financial responsibility of Engelhart before consenting to the lease. Intervenor and third opponent was present through Its president, heard the inquiries made by plaintiff, signed the lease as a witness, and yet made no claim of ownership to the property contained on the leased premises, thus. leading the plaintiff to believe that it belonged to Engelhart.

Our .opinion is that the seized property did belong to Engelhart and that intervenor and third opponent is equitably estopped from denying the fact.

Among the articles seized are two showcases, which belonged to intervenor, and which were not on the leased premises. They should be released from seizure and returned to intervenor. As thus amended the judgment should be affirmed, and it is so ordered.

ON REHEARING

LECHE, J.

Intervenor now claims that we should have recognized the seized property in this case, subject to its vendor’s privilege. Such a judgment would not be responsive to the pleadings and would conflict with the statements made by the president and manager of intervenor company at the time the lease was entered into.

Rehearing is refused.


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

text:
    No. 281
    First Circuit
    DOUGHERTY ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
    (May 8, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Granted.)
    (November 10, 1928. Opinion and Decree on Rehearing.)
    (January 2, 1929. Writ of Review deniéd by Supreme' Court.)
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiffs, appellants.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

Carl B. Luikart leased during the year 1915, from the plaintiffs herein, certain agricultural lands constituting a plantation, situated just north of the City of Baton Rouge. About the 1st of November of that year, the crops grown by Luikart on the leased plantation, were almost entirely destroyed by fire, caused by sparks emitted from a locomotive of the defendant company. The crops had been harvested and were partly gathered, and together with a lot of agricultural implements, were mostly stored in a barn built by Luikart and situated on the premises near the defendant’s tracks. It appears that the siparks first set afire a lot of hay that had been stacked in the field near the barn in which it was to be stored, that in this manner the fire most likely was communicated to the barn. The barn and all of its contents were destroyed.

Luikart had obtained insurance on his crops and for some unexplainable reason, plaintiffs had obtained in their name a policy of fire insurance on the barn. It is admitted that the insurance companies paid up such part of the losses as were covered by the policies which they had issued.

Luikart then brought suit against the defendant railroad company for the loss of his crops and in his petition, asked that the insurance companies which had already paid him, be recognized as beneficiaries of so much of his demand as had been satisfied by them under their policies.

A similar suit, which is now on appeal before us, was brought by (plaintiffs against defendant railroad company, for the value of the barn (building) and they ask as did Luikart, that the insurance company which issued to them the policy on the barn, be recognized as beneficiary of such part of the judgment which they might secure from the court, as will reimburse that insurance company for the loss which it has paid to them under the policy.

The two suits involving the same principal issue, that is, whether the fire had been caused by the fault of the defendant ■company, were tried together in the District Court, and by agreement of counsel, the same note of evidence was' used in both cases.

The District Court rendered judgment in favor of Luikart for $4786.22 and the defendant appealed to the Supreme Court. In the case of the plaintiffs herein, the demand which was for $758.00 was rejected and they have appealed to this court. By consent of all parties, the record in this case was shelved, and no action was taken until lately or after the Supreme Court had finally decided the appeal of Luikart.

It seems that during the consolidated trial of the two cases in the District Court, it developed that the plaintiffs in (this case were unable to show ownership of the barn, the value of which they were claiming from the railroad company. Luikart, as a witness, testified that he built the barn and when asked whether he had built it for the plaintiff, Dougherty, he said that he had built it for himself. He seemed to believe that as a matter of law, he would not have the right to remove it at the expiration of the lease. In this conclusion, he, of course, erred as to the law. He permitted, however, that the policy of insurance on the barn be taken out in the name of Dougherty, but he, Luikart, paid the premium on the policy. It is not disputed that Dougherty as landlord, had an insurable interest in the barn to secure his right of pledge for the rent of the place. There is no question that the barn was built by Luikart for his own use and that the plaintiff, Dougherty, had no title to it at the time it was destroyed by fire.

After the note of evidence had been closed, defendant filed the following motion:

“In this matter now comes defendant, the Yazoo and Mississippi Valley Railroad Company and moves your Honorable Court in view of the testimony developed herein since the trial of this case has begun, to dismiss the said suit' as the said evidence shows that plaintiffs have no right to maintain this action for lack of ownership.”

The trial judge in his judgment says:

“For reasons orally assigned, the Court sustains the exception of ‘no cause of action’ filed herein on the trial and referred to the merits * * * it is therefore ordered * * * that there be judgment against plaintiffs dismissing this suit at plaintiffs’ costs.”

Much of the apparent confusion that arose in the argument of the case, springs from the fact that our learned brother in his judgment calls the motion filed by-defendant, an exception of no cause of aetion.

The motion which is above fully transcribed, and which was filed by defendant after the evidence had all been taken down, is akin to such motion as is prevalent under common law practice, by which one of the parties in a jury trial, moves the Court to take the case from the jury and to direct a verdict where the evidence leaves no doubt as to the judgment which should be rendered. Such practice is foreign to our civil law system and the motion merely amounts to a request for immediate relief without further formality. It might with equal propriety be filed by either party after trial on the merits in every case submitted to a Court of justice. It is certainly not an exception of “no cause of action,” a plea which under our practice, must be heard and considered on the face of the pleadings and not on the face of the evidence.

What the trial judge did actually do in this case, was to decide the case on its merits, and to reject plaintiffs’ demand, because plaintiffs did not own the barn for the value of which they were suing defendant. The evidence clearly shows that the barn was built by Luikart, a lessee, for his own benefit, that it could not form part of the realty, the land which belonged to plaintiffs, and that it was just like any other movable placed by the lessee for his own use and enjoyment, on the land of his lessor. The evidence clearly shows that the barn at the time it was destroyed by fire, belonged to Luikart.

For these reasons, plaintiffs’ demand is refused and rejected and the judgment appealed from is affirmed.

ON REHEARING

MOUTON, J.

Luikart leased a farm from plaintiffs and during the term of the lease built a barn on the land. The barn was destroyed by fire caused by sparks emitted from a train of defendant company. The barn was insured with the Springfield Fire and Marine Insurance Company in the name of plaintiffs, Luikart’s lessors. The barn belonged to Luikart who paid the premiums on the policy. Luikart, being under the mistaken idea that the barn was the property of his lessors, consented to the issuance of the policy in the name of the Estate of N. S. Dougherty. Plaintiffs, as lessors, had a lien on the barn but did not take the policy to safeguard their privilege, and did not pay the premium. Luikart was the assured.

The policy was for $600.00, which was adjusted with the insurance company for $568.00 by plaintiffs. Upon recovering that amount, plaintiffs as the agent of the Dougherty estate, by written contract, transferred all of the rights of the estate against defendant railroad company, and undertook to constitute the insurance company, their subrogee.

Plaintiffs claim $758.00, the alleged value of the barn, out of which it is asked that $568.50 be decreed to the insurance company, as subrogee.

Luikart testifies that when the insurance was collected it was turned over to plaintiffs for his rent. As hereinabove stated, the policy was for $600.00 and had been adjusted for $568.00 by plaintiffs. Plaintiffs were not owners of the barn, could not demand its value nor a claim therefor as Luikart had made no transfer of such a, claim to plaintiffs.

Luikart says he turned the insurance over to plaintiffs which the evidence shows was for $600.00, and had been adjusted for $568.00. If plaintiffs have any rights, they must be limited to $568.00 demanded for the benefit of the subrogee. Luikart' was the owner of the barn and could not possibly have any lien or mortgage against it. The barn was destroyed by fire and went into smoke, leaving to Luikart a mere claim for its value. If he had had a lien against the property destroyed, upon receiving payment by way of rent from Dougherty, it could be contended that the insurance company would have been legally subrogated to the rights of Luikart. As he had a bare claim only, against defendant company, a conventional subrogation from Luikart to the insurancé company would have been essential to constitute the latter, his subrogee. The record shows no such subrogation, and none to Dougherty, who, if any had been made in his favor, it might possibly be said he had conveyed his subrogated rights to the insurance company.

If plaintiffs had been the assured, and had paid the premium on the policy, there would be ground for contention that as they had a lien or lessor’s privilege, the payment of the insurance money which they were permitted to retain for the rent, had effected a legal subrogation in favor of the company to the sum of $568.00, for which the policy had been adjusted. Such were, however, not the facts. Luikart, owned the barn, paid the premium, and was the assured. That he was the assured appears also from the fact that when the money was collected for the rent, he turned over to plaintiffs’ the insurance policy. If they had been the assured such “turning over” would have been entirely unnecessary.

As plaintiffs were not the assured they could not make the insurance company a subrogee. They' had no authority whatsoever from Luikart to confer any such rights on the insuranoe company, which is neither a legal nor conventional subrogee. No being subrogated to Luikart, the assured, the insurance company had no right to sue for itself, and consequently could not empower plaintiffs as their agent to institute this suit for the amount paid by it on the policy. This involves a question of the right to sue on the part of plaintiffs, and not one of capacity which would? have required an exception in limine. The exception filed by defendant was timely and was properly maintained.

Our original decree is therefore reinstated, and the judgment below is affirmed.

LECHE, J.

(concurring). The facts in this case were stated in the original opinion but it is not amiss to restate some of them, insofar as they have a pertinent bearing upon the issues involved. It is also proper that the pleadings be likewise adverted to for the same reason.

Plaintiffs in their petition, do not allege that they were the owners of the barn when it was destroyed by fire, but they do pray for judgment against the Y. & M. V. R. R. Co., for the full value of the barn, for themselves in part, and for the insurance company for the balance, as beneficiary and subrogee.

The only reasonable theory applicable to their petition, is that they sue as owners. That was the position which they assumed when the case was first argued before this Court, both in oral argument and in their brief. This Court held in its original opinion, that the barn was the property of Luikart and that it did not belong to plaintiffs. In their application for a rehearing, no complaint is made of the finding of this Court upon that point. In fact in their brief for a rehearing they frankly admit that they are mere nominal parties.

So that we have here a case where a suit is brought' by plaintiffs in their own name and for their own benefit, in which they seek to recover the value of property which did not belong to them. They do not allege that they are agents of the owner, neither do they attempt to offer proof of agency. They now claim that they are suing for the benefit of the insurance company, that they are mere nominal parties and that the real party in interest is the insurance company. Then where do they derive the right to sue for the benefit of the insurance company? The insurance company is not a party to this suit, nor is there any allegation or proof in the record that the insurance company has authorized plaintiffs to institute this suit for its benefit. It is elementary that the capacity and interest of one who brings an action must be alleged, to enable him to recover. St. Patrick’s Church vs. Ice Co., 44 La. Ann. 1021, 11 So. 682; C. P. Art. 15. No one, unless interested, may sue to champion the rights of others. Ingram vs. Heintz, 112 La. 497, 36 So. 507; West vs. Negrotto, 52 La. Ann. 391, 27 So. 75; Succession of Keppel, 113 La. 261, 36 So. 955; Barrow vs. Grant’s Estate, 113 La. 297, 36 So. 970; Conery vs. His Creditors, 118 La. 168, 42 So. 760.

So that we have before us a suit in which the plaintiff has no interest directly or indirectly, and where he contends in argument that he is suing for the benefit of a third person, who is a stranger in the case, without any alleged or accredited authority, and this alone is enough to justify a judgment dismissing his demand.

It is suggested that want of capacity must be attacked by exception in limine. This undoubtedly would have been done if plaintiffs had sued in a representative capacity, but they sued as owners. It was only when the evidence showed that they were not owners, that their want of capacity became an issue in the case and it was then too late to except in limine to their want of capacity. There would have been no ground or reason to object to their right to sue for the benefit of the insurance company if they had been owners of the barn. Houton vs. N. O. & C. R. Light and Power Co. et al., 124 La. 562, 50 So. 544; Reisz vs. Kansas City Southern R. Co., 148 La. 929, 88 So. 120.

The Court in these cases and others, announces that an owner may sue a tortfeaser for his own damage, and that he may in the same suit, sue for the benefit of his insurer and subrogee in order to avoid a multiplicity of suits and in order to avoid splitting an indivisible cause of action. To decide otherwise in this case would. be in direct conflict with these decisions.

I therefore concur in the decree.

ELLIOTT, J.

Dissenting:

I have concluded that the judgment appealed from is erroneous to the extent of $568.50 and should be reversed, and judgment rendered to that extent' in favor of the plaintiff. That the Springfield Fire & Marine Insurance Company should be decreed to be the beneficiary and subrogee of said judgment, as prayed for. That our former opinion as well as the one presently handed down, is erroneous.

The facts are stated in our original opinion and again in the opinion on rehearing.

The barn having been destroyed during the life of the lease, Luikart’s right to it existed at that time under the law, Civil Code 2726. But Luikart did not look on the barn as insurable in his name, so he obtained tbe insurance on it in tbe name of “Estate of N. S. Dougherty,” owners of the plantation, but he paid the premiums. The policy states that the barn is situated on the premises of the assured, and there is nothing in it that indicates that the assured was not the owner.

The insurance company paid the loss to “Estate of N. S. Dougherty” and received from them an assignment of all their rights of action against the railroad company on account of the burning of the barn, subrogating the insurance company to their rights of every kind on that account.

The “Estate of N. S. Dougherty” alleges to the Court that the barn was worth $758.50 and claims the amount as due them, but that $565.50 of this amount' is for the use and benefit of the Springfield Pire and Marine Insurance Company, subro'gee to said amount. They pray for judgment in their favor for $758.00 but that the Springfield Eire and Marine Insurance Company be decreed to be the beneficiary and subrogee of the said judgment to the extent of $565.50.

The petitioner does not expressly allege ownership of the barn in the plaintiffs, but alleges ownership of the land and the burning of the barn situated thereon, which may be understood as meaning that the barn belonged to them as part of the plantation.

The Court holds that plaintiff was not the assured, and that not being subrogee to Luikart’s rights, they have no right to sue for the benefit of the insurance company. This holding, I now think, fails to give full effect and meaning to the law, Civil Code, Art. 15, which provides:

“An action can only be brought by one having a real and actual interest which he pursues; but as soon as that interest arises he may bring his action.”

I conclude after closer thought that to have “a real and actual interest,” within the meaning of the law, does not require that the interest be proprietary or financial in the sense that nobody but the one who brings the suit can profit by the recovery.”

In a suit on a note payable to bearer, the holder of it may sue and compel payment to himself, although he may not be the actual owner.

The right of action conferred by law on the father and mother of a minor by C. C. Art. 235, and whereby they are authorized to appear for their minor children in Court in every kind of civil action, is not based on the real and actual interest of the father and mother in the recovery or defense, but on that of the minor for whose benefit they appear in Court'. So, where the suit is based on the obligation of the party who commits an injury to compel him to make good the wrong, it makes no difference to the wrongdoer under C. C. Art. 2315, if the injured party has been insured against the injurious act and has received payment from the insurer on that account. The party injured still has his action against wrongdoer and the wrongdoer is not concerned in the payment.

The case of U. S. vs. N. O. P. Railroad Company, 248 U. S. 507, 39 S. Ct. 175, 63 L. Ed. 388, deals with a patent fraudulently obtained. The Court, seeking to set aside the fraudulent act, not to benefit any particular person but to prevent the fraud, says p. 518 of 248 U. S. (39 S. Ct. 178):

“The rights of the United States to maintain the suits is questioned on the ground that the enforcement of the asserted trust is a matter in which the United States is without interest or concern. Were the premises tenable, the conclusion would follow as of course. But the premise is not tenable. A pecuniary interest in the relief sought is not essential. It is enough if there be interest or concern arising out of an obligation to those for whose benefit the suits are brought.”

In this case Luikart having by means of the policy taken out on the barn in the name of “Estate of N. S. Dougherty” received the proceeds of the barn, he cannot say that the assignment and subrogation which the assured made in favor of the insurance company did not vest in the insurance company all his rights of action against the railroad on account of the burning of the barn.

To my mind, it does not follow, because of plaintiffs’ allegation to the Court, that the railroad company is indebted to them for the value of the barn but that the suit is to the extent stated for the use and benefit of an insurance company, prays for judgment for its value and further that the judgment up to an amount stated be decreed as against the pleader for the use and benefit of the . insurance company, together with proof on the trial that Luikart was the actual owner of the barn at the time it was burned, that the railroad company is thereby released from its obligation to make good to the plaintiffs the loss occasioned by its fault.

The suit does not alter the defense. Payment of the judgment will discharge the railroad company on account of the barn.

Defendant’s answer indicates' that in answering, it did not depend on a defense of that kind. The claim of the plaintiff for the use and benefit of the insurance company, is advanced in Article XII of their petition. In its answer to this averment defendant says: “That as to paragraph 12, it neither admits nor denies, having no information as to them,” which is tantamount to saying that it is -not concerned with plaintiff’s averment in Article XII.

The former latent, and as to the defendant, unknown rights of Luikart in the barn, and the fact that plaintiffs allege what they propose to do with the sum recovered and pray that .the right of such beneficiary be recognized as against themselves, does not concern' the defendant. The plaintiffs, occupying through the act of Luikart, the position of assured and owner of the barn as regards the insurer, entitles them to take the same position toward the railroad company with reference to recovering on account of its loss caused by the railroad company’s fault.

The situation is such, that plaintiffs may, in my opinion, be recognized as having the requisite interest under the law, Code of Practice, Art. 15, to maintain this action. The case, as I see it, is governed by Hanton vs. N. O. & C. R. Light Co., 124 La. 562, 50 So. 544; and Reisz vs. Kansas City Southern R. R. Co., 148 La. 929, 88 So. 120, cited in plaintiffs’ brief. In the present case as in the case last cited the question of the right to sue was not raised in limine litis, and the Supreme Court acting on it took occasion to say: “The practice of suing by one party for the use and benefit of another, has been recognized by this Court in a number of cases,” citing authorities.'

For these reasons I respectfully dissent.


author: WESTERFIELD, J.

text:
    No. 10,657
    Orleans
    THOMAS v. KING
    (October 29, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)

      Jos. Rosenberg & C. S. Hebert, of New Orleans, attorneys for plaintiff and appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit for damages for personal injuries growing out of an automobile collision. Plaintiff, was a passenger in an automobile driven by his brother. Defendant, the owner of an automobile operated for hire, and driven, at the time of the accident, by his employee. The judge, a quo, allowed damages in the sum of $250.00.

The record convinces us that the driver of the automobile, in which plaintiff was a passenger, was without fault. He was proceeding slowly on the right side of the road, where he should have been, and, was suddenly and violently struck by defendant’s automobile. There is evidence in the record to the effect that the driver of defendant’s car excused himself for his admitted carelessness, by saying that, he had been driving continuously for forty-eight hours. The driver denied this alleged statement on the witness stand, but admitted he had had but little rest during that period. However this may be, there is no doubt of defendant’s negligence, for he should have kept to the right of the road and avoided the collision.

The judgment appealed from awarded plaintiff $250.00. His injuries consisted of a cut on the left side of his face which produced a scar, described by the trial judge as being four inches in length. We do not regard this injury as trivial and it was certainly painful, however, we are not disposed to disturb the judgment.

For the reasons assigned the judgment appealed from is affirmed.


author: MOUTON, J.

text:
    No. 29,488
    First Circuit
    R. E. GEORGE MACHINERY CO. v. N. O., TEXAS, MEXICO R. R. ET ALS.
    (May 8, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (October 2, 1928. Writ of Review granted by Supreme Court.)
    (November 26, 1928. Reversed by Supreme Court.
    Docket No. 29,488.)

      Modisette & Adams, of Jennings, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

LeBlanc, and Bereaud, farmers, ordered a threshing machine from plaintiff company, which was shipped from its branch office at Crowley. It was shipped from Crowley in July, 1920, and was by the New Orleans, Texas and Mexico R. R. Co., initial carrier, turned over for transportation to the Texas and Pacific Railway Company, which it is alleged, delivered the machine in violation of its contract of affreightment. Judgment was asked against the two railroad companies in solido, but the issue has narrowed down to a demand against the Texas and Pacific Company which appeals from an adverse judgment.

The bill of lading shows that the machine was shipped from Crowley, July 27, 1920, by plaintiff company; “destination, Lafourche . Crossing, La. Notify Chas. J. LeBlanc, Donaldsonville;” and that it was consigned to the order of tahe shipper. Through an error of the Texas and Pacific Company the thresher was sent to Donaldsonville. LeBlanc, who had ordered the machine from Crowley had it re-billed or re-shipped from Donaldsonville to Thibodaux, its original point of destination as appears from the; bill of lading. In the meantime another similar machine had been shipped to LeBlanc and Bereaud as a substitute for the first machine, but the second thresher was returned to Crowley, and was receipted for by the Texas and Pacific R. R. Co. It seems that another bill of lading accompanied the second shipment. B. L. Fillingham was the representative of plaintiff, the George Machinery Co., at Crowley, and had attended to the shipment of both machines. He did not testify, and it is not shown where he was at the time of the trial which took place several years after these shipments were made.

Plaintiff introduced a letter in evidence purporting to have been written by Filling-ham, dated at Crowley, August 3, 1920, and addressed to the Commercial and Savings Bank at Donaldsonville. This letter says:

“Please find settlement papers for separator sold to Chas. LeBlanc and Mr. Bereaud of Lafourche Crossing, please collect the draft and have the notes made and the mortgages properly signed up and forward the money and papers to this office when completed. And then turn over the bill' of lading to them.”

Fillingham’s signature to this letter seems to be genuine as was testified to by witnesses in the case. At the time this letter was written, Sam M. Richard was the cashier of the Commercial and Savings Bank at Donaldsonville. He says he has no recollection of having received that letter. There is, however, the copy of a telegram sent from Crowley by plaintiff company, dated August 10, 1920, seven days later than the date of the letter. This telegram is addressed to the Commercial Bank at Donaldsonville and is in the wor'ds following:

“Transfer settlement papers on Bereaud and LeBlanc to Lafourche Bank at Thibodaux for their convenience.”

No doubt this telegram was sent by Fillingham as LeBlanc testifies that he rang up Fillingham and asked him to transfer the notes to the Thibodaux Bank. Sam Richard, cashier, says the bank received this telegram and at the time had in its possession the settlement papers referred to in the telegram. He could not, however, remember if the bank had the bill of lading. As the telegram was no doubt sent by Fillingham, and as his signature on the letter above referred to cannot but be considered genuine according to the evidence, we are convinced that the bank also received the bill of lading to which the letter refers. As the thresher had been reshipped to Lafourche Crossing, its point of destination, it is not possible to believe that the bill of lading was not sent with the papers for settlement to the Bank at Thihodaux.

P. F. Legendre, then cashier of the Bank' of Lafourche, to which the papers had been transmitted by the Donaldsonville Bank, could not at the time of the trial remember if he had received the bill of lading in question. When asked, however, if he was able to state whether or not he had presented to Bereaud or LeBlanc the settlement papers for execution, he says:

“They must have been presented to them for the reason that they refused to sign the note and draft as I at the time endorsed on the back of the draft.”

The occurrences to which he refers had transpired several years before, and though he could not then remember if he had received the bill of lading, from the foregoing facts we are led to the conclusion that it was in the possession of the Bank of Lafourche with the other papers. It is made very clear by the .testimony of the cashiers of these two banks that they would never have delivered to Bereaud or LeBlanc the bill of lading, unless they had previously complied with the requirements of the settlement papers. No one can believe that either of them would have so flagrantly violated his instructions. Even if there had not been instructions in reference to the execution of the settlement papers, the cashiers would not have delivered the bill of lading without authorization from plaintiff company as the thresher had been consigned to. its own order.

The defendant claims that the machine was delivered at Thihodaux to Bereaud by Schyxnider, station agent of the Texas and Pacific R. R. Company. Schyxnider says he delivered it on a bill of lading presented by Bereaud, but is unable to say where Bereaud had gotten it. He admits that the bill under which the thresher had been sent according to the first shipment, was never delivered or surrendered to him, and that when such bills are surrendered the dates of their surrender are stamped on such bills as proof of satisfaction to railroad companies. No such surrender is shown, and the only conclusion is that the machine was delivered to Bereaud by Schyxnider on some other bill of lading, which possibly was the one that accompanied the shipment of the second thresher, which it is admitted, had been returned to defendant company. The bill of lading was certainly not given to Bereaud by plaintiff company, as the bill they had taken had been sent to the bank at Donaldsonville, and from there had been transmitted to the Bank of Lafourche from where it would not have been turned over to anyone without the order or consent of plaintiff company.

In the first bill of lading upon which this suit is grounded the destination of the machine was at Lafourche Crossing. Chas. J. LeBlanc, who had ordered if, was to be notified at Donaldsonville. By mistake the thresher was sent to Donaldsonville. It should have gone through to the point of destination, and LeBlaifc notified of its arrival there. The failure of sending the machine through as the bill of lading required, created the confusion which resulted and caused the issuance of the shipment of another machine, and the issuance of another bill of lading. In that regard defendant company was at fault as there was no justification for the stopping of the thresher at Donaldsonville.

It therefore follows that if the thresher was delivered to Bereaud on the second bill of lading, this was caused by the fault of defendant company. It should have been delivered under the original bill of lading, and would have been so delivered if the cómpany had carried out its contract of affreightment. If it had been turned over to LeBlanc or Bereaud under the proper bill of lading the settlement papers would, prior to the delivery of the bill by the Bank of Lafourche have been properly executed, and plaintiff company would have obtained the price of the machine. Its failure to recover that amount was due to the fault of defendant company for which it was properly held responsible. In any event, the defendant company had no authority to deliver the thresher to Bereaud without the authority of plaintiff to whose order it was consigned under the bill of lading. Its delivery to. Bereaud under the second bill of lading or any other which had been issued by defendant company, cannot absolve it from liability, unless it can escape through the plea of estoppel which it has filed as a defense in the case.

The record shows that plaintiff, in a former suit, asked for judgment against LeBlanc and Bereaud for the price of the machine with interest, attorney’s fees, etc.

The defendant company pleads that plaintiff by thus instituting and prosecuting a legal action for the purchase price of the machine has. thereby elected to hold the purchasers and made choice of a remedy to hold these purchasers responsible for the cause of action which is set up herein against defendant, and that by virtue of the choice and remedy so made, is estopped from pursuing the same demand against defendant.

Counsel for defendant refer us in support of their plea of estoppel to Gaudet vs. Gauthreaux, 40 La. Ann. 187, 3 So. 645; B. Lowenstein & Bros. vs. Glass et al., 48 La. Ann. 1422, 20 So. 890; Robb vs. Vos, 155 U. S. 13, 15 S. Ct. 4, 39 L. Ed. 52.

In the 40 Annual case, it appeared that plaintiff had sold a tract of land to two ladies in which their husbands had joined to authorize them to buy, and only for that purpose. In executory proceedings sued out by¡ plaintiff on the notes given for the property, plaintiff alleged that he had sold it to the two ladies, and that their husbands had appeared to authorize their wives to sign. Plaintiff in a subsequent suit, as is explained in that case, brought his demand against the husbands and their wives which was founded on the averment that the sale of the land was made by plaintiff to the husbands.

Obviously, no two actions could have been more contradictory, as plaintiff in the second suit was attempting to repudiate his prior judicial declaration that the wives had signed the notes as purchasers, and not their husbands who had appeared only to give their sanction to the transaction.

In B. Lowenstein & Bros. vs. Glass et al., 48 La. Ann. 1422, 20 So. 890, the subsequent demand filed was equally inconsistent and destructive of the prior action. In the case of Robb vs. Vos, 155 U. S. 13, 15 S. Ct. 4, 39 L. Ed. 52, the Court in passing on this question said:

“A party may not take contradictory positions; and where he has a right' to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge or means of knowledge of such facts as would authorize a resort' to each will preclude him thereafter, from gojng back and electing again.”

In this case plaintiff had the right to prosecute his demand against either LeBlanc and Bereaud, or the defendant railway company. They were both responisble to plaintiff which had the right to choose one of the two. modes of redress. There is nothing contradictory in the position it occupies in this suit from that which was taken by it in its demand filed against the purchasers of the machines. There is nothing so inconsistent between .the two actions that the assertion plaizztiff makes in this suit “involves the negation or repudiation of the other.” There was nothing done by plaintiff in its suit against LeBlanc and Bereaud that could have induced defendant company to have taken a position that it would not otherwise have assumed to its detriment on injury. On the contrary, if plaintiff had been successful in that suit the result would have enured to the benefit of defendant. Such are the considerations which usually govern in estoppels in pais, founded as they are on principles of justice and equity, and there is no reason why they should not be invoked in this case where an estoppel by record is relied upon by defendant railway company. The estoppel pleaded was properly overruled, and judgment was correctly rendered for the amount demanded.


author: ELLIOTT, J.

text:
    No. 348
    First Circuit
    AYER v. KIRKWOOD
    (November 10, 1928. Opinion and Decree.)
    (December 4, 1928. Rehearing Refused.)
    (January 2, 1929. Writ of Review denied by Supreme Court.)
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Leslie A. Pitch, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Mrs. Mittie E. Ayer, wife of Gilbert C. Ayer, is the owner of a tract of land containing 50 acres, situated within the incorporated limits of the town of Zachary. The defendant, S. D. Kirkwood, is the east boundary owner aloizg the upper part of her tract. D. S. Kirkwood is 'such immediately south of S. D. Kirkwood, and next after him, her eastern boundary owner is Morgan, as alleged in her petition.

S. D. Kirkwood erected a couple of feiz'ces across what was once a part of the Baker-Zachary public road, which formerly passed over the eastern side of plaintiff’s land, and the upper end of the land, which now belongs to the defendant.

The plaintiff alleges that the fences are on a public street of the town of Zachary, and that they prevent her use of said street. That defendant has no right to obstruct the street, etc. She prays that he be permanently enjoined from maintaining said obstructions, for a temporary injunction to prevent irreparable injury, and. for judgment ordering defendant to remove said obstruction.

The defendant first' opposed to her demand, exceptions of estoppel and res adjudicata. The lower court referred the estoppel to the merits, but no action was taken in regard to the plea of res adjudicata.

The court, after hearing, refused to grant the temporary injunction.

The defendant then answered and admits closing the strip of ground, but he alleges that he is the owner "of the land in question, and denies that it was, or ever had been a public road or street. He further alleges the establishment of a public graveled road in the place of the old Baker-Zachary road. That the road was straightened at the time it was graveled, and in the process of straightening it, that part of the old road which had passed over his land was cut out and discontinued.

That after the establishment of the graveled road, the plaintiff herself erected barriers across that part of it which formerly ran over his land.

The evidence shows that a public road has been running between the towns of Baker and Zachary, of the kind provided for by the Civil Code, Art. 705, and known as the Baker-Zachary road, for thirty or forty years. It' ran along the eastern side of plaintiff’s land, and at the northeastern corner of the same made a short and very sharp right angle turn to the east, for a distance of about 150 feet, over the upper part of what is now defendant’s land. At the northeast corner of defendant’s land it made a sharp turn 'north into the town of Zachary. This part, about 50 yards long, which passed over defendant’s land, is 'the part which plaintiff alleges is now a street. The former crooks and bends in the road, and the sharp turns above mentioned, being unfavorable to the improvement of the road, also to the new and faster method of travel, the people living on it, and the public road authorities got together five or six years ago and decided to straighten the road and gravel it. It was moved a little further east than where it had formerly run in front of plaintiff’s • property, and the short sharp right-hand turn from the northeast corner of plaintiff’s tract, across the upper part of defendant’s land was cut' off, and the road made to run straight along the eastern side of defendant’s land and on into Zachary.

The road as straightened still passes over the lower part of plaintiff’s land and still affords her an easy access to the road, from the lower part of her tract, as formerly. But instead of following up the. entire length of her eastern line, it leaves her land and passes along the eastern side of D. S. Kirkwood, and after him, that of S. D. Kirkwood.

The plaintiff’s residence is located toward the upper part of her tract, therefore the shortest' route from her residence to the gravel road is along the former route, over the upper end of defendant’s land.

The road in question along the northern side of defendant’s land never was a street of the town of Zachary, and never was so considered nor claimed to be such.

The evidence shows that' when that part of the old road, which .plaintiff claims to he a street, was cut off, it was abandoned as a public road and ceased to be used as such. The land over which it passed was part of defendant’s tract, and when it ceased to be part of the public road, he had the right to take possession and fence it as he did. Civil Code, 482, 783, 658. Hatch vs. Arnault, 3 La. Ann. 482. City of Shreveport vs. Simon, 132 La. 69, 60 So. 795; Act 151 of 1910.

We do not agree with the plaintiff that those parts of the old road which were cut off in the process of straightening continued to be public, and that the owners of the soil had no right to enter on the same. The Police Jury had the power to straighten the road. Revised Statutes, Secs. 2743 and 2750. Their consent to the straightening is deducible from their ordinance of July 12, 1921, whereby they agreed to furnish the gravel, provided the citizens interested, would have all the necessary work on said road done according to plans and specifications by Engineer J. J. Mundinger.

The Revised Statutes, Section 3385, which required the consent of contiguous property owners to a change in a public road, was repealed by Act 101 of 1880.

The evidence shows that plaintiff consented to the straightening, and after it had been done, she erected a barrier for a short time across that part of it cut off and of which defendant subsequently took possession as part of his estate.

The plaintiff contends that defendant does not own this strip; that the old road there, was the boundary of his estate.

The titles from R. M. Ahnison to N. H. DeBritton and from DeBritton and H. M. Young to T. L. Mills describes the land sold as bounded on the north by the BakerZaehary public road, but the acts also declare that the land sold, is a certain tract acquired from certain parties, and older titles show that the tract was not limited by the road.

The title from Mills to the defendant gives Wicker as his northern boundary, and makes no reference to the road, and the sale was not limited thereby, but includes the ground in question.

It is sufficient for this suit that the strip is not a part of the public road nor a street.

The judgment appealed from is correct.

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


text:
    No. 29,479
    First Circuit
    SHERIDAN v. NEW ORLEANS GREAT NORTHERN RAILROAD COMPANY
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (October 2, 1928. Writ of Review granted by Supreme Court.)
    (November 26, 1928. Reversed, by Supreme Court.
    Docket No. 29,479.)

      Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    B. M. Miller, of Covington, attorney for defendant, appellant.
   ELLIOTT, J.

J. Houston Sheridan claims of New Orleans Great Northern Railroad. Company, the value of a carload of cattle which the- railroad accepted from him at Slidell, La., for shipment, consigned to himself at Bogalusa, La.

The plaintiff alleges that the car of cattle was worth $1570.30. That the railroad company, after transporting the car to Bogalusa, refused to deliver it to him at the place agreed on and called for by the bill of lading and finally appropriated the cattle to. its own use.

The defendant denies that it owes the amount. It admits that its agent at Slidell accepted the cattle and delivered to plaintiff the bill of lading annexed to his petition, but alleges that same contemplated the delivery of the car at defendant’s regular cattle pen in the City of Bogalusa, and not as alleged by the plaintiff. It further alleges a contract of lease entered into between it and D. E. Sheridan, whereby it leased to D. E. Sheridan a portion of its right of way at Bogalusa as a location for a dipping vat and stock pen. ■ That D. E. Sheridan built a stock pen and constructed a dipping vat thereon. That by agreement between D. E. Sheridan and itself, the lease was brought to a close on July 15, 1927, after which time D. E. Sheridan promised and agreed not to ship any more cattle to be unloaded and reloaded at the stock pen which he had built. That at the time the bill of lading in question was issued, July 23, 1927, the cattle pen and dipping vat which D. E. Sheridan had built and constructed was net in operation. That same was not a public pen and dipping vat. That plaintiff had no right to have his cattle unloaded at the stock pen and dipping vat, which we will herein afterwards refer to as the Sheridan pen. That plaintiff’s cattle were unloaded at its regular stock pen at Bogalusa. That plaintiff refused to receive them there and pay the freight, thereby forcing defendant to sell them as unclaimed freight. That after the sale and all expenses had been paid, there remained $601.90. That said sum had been tendered to the plaintiff, but that he refused to receive the amount.

Defendant prays that plaintiff’s demand be rejected at his cost.

The evidence shows that the railroad company had its own stock pen at Bogalusa at which cattle could' have been unloaded, but the railroad did not maintain a dipping vat. Quarantine regulations had existed against the shipment of cattle from-,the Parishes of Washington, St. Tammany and Tangipahoa for several years on account' of tick infection. This quarantine prevented the shipment of cattle unless they had been dipped and inspected by certain officers, consequently there had been no cattle received at or shipped out of the railroad pen for several years. This ban had caused great loss to cattle owners in these parishes.

An arrangement between the New Orleans, Great Northern Railroad Company, and D. E. Sheridan was entered into, whereby D. E. Sheridan leased from the railroad company, a parcel of ground within the incorporated limits of the City of Bogalusa, and erected the cattle pen and constructed the dipping vat metnioned by the witnesses. The railroad company in order to facilitate the transportation to the Sheridan pen for dipping and reshipment of cattle from Bogalusa into the markets situated in tick free territory, constructed a switch track from its main line to the said Sheridan pen. The quarantine regulations permitted the shipment of cattle after they had been dipped and inspected.

The railroad company also arranged a special tariff for the benefit of cattle owners under which the shipment of cattle to Bogalusa for the purpose of having them dipped, inspected and re-shipped, could be made over said line for less than would otherwise have been the charge for said shipments.

The clause contained in the lease to the effect that the premises were not to be occupied by any other person than D. E. Sheridan without written consent of the lessor first obtained, was not observed. The evidence "shows that a number of cattle owners living in Washington Parish drove their cattle to the Sheridan pen, dipped and shipped them over defendant’s line to the markets, paying D. E. Sheridan a small fee sufficient to keep the vat charged and to defray the expenses of inspection. The number of cattle carried to the pen however, led to conditions which resulted in litigation between D. E. Sheridan and the railroad company on one side and certain citizens of Bogalusa living near the, pen, on the other, with the result that in May, 1927, a judgment was rendered in favor of certain citizens enjoining D. E. Sheridan and the railroad company from “operating or permitting to be operated near Bogalusa Terrace in the City of Bogalusa, a dipping vat, cattle pens and shipping pens, in such manner as to become a nuisance from odors, filth, flies or noises or from other factors which might cause or create a nuisance.” The City of Bogalusa also took a hand in the matter and objected to the pen and vat.

After the judgment, D. E. Sheridan entered into an agreement with the railroad company that no more cattle would be shipped by him to be unloaded, dipped and re-shipped from the Sheridan pen after July 15th, but the evidence shows that the railroad company permitted him to ship several cars of cattle into Bogalusa under the tariff in effect for that purpose on the next day,, July 16, 1927. The cars were transported to the Sheridan pen, unloaded, the cattle dipped and then re-shipped to market from that pen, but no more shipments were made by D. E. Sheridan after that time.

The railroad company, however, did not put the tariff aside which had been put into effect for the purpose stated until after July 23, 1927, when plaintiff shipped. The tariff was in force and effect at the time plaintiff’s shipment was received. At that time, defendant’s agent along its line had not received any notice that no more cattle were to be received under same for shipment to Bogalusa to be unloaded at the Sheridan pen, dipped and re-shipped from thence to market.

Plaintiff, a son of D. E. Sheridan, testifies that at the time of his shipment', July 23, 1927, he was not aware of the agreement that had been entered into between his father and, the defendant, that no more cattle were to be shipped into Bogalusa to be unloaded at the Sheridan pen, dipped and re-shipped from thence to market. He testifies that he bought the car of cattle, obtained from defendant at Slidell the bill of lading annexed to his petition, loaded the car and'had it transported to Bogalusa to be unloaded at the Sheridan pen the cattle dipped and thence re-shipped to market, in good faith, and there is no evidence to the contrary.

As for the defendant, its agent at Slidell not having received the notice also acted in good faith. The tariff being in fact still in effect, he received the shipment, issued to plaintiff a bill of lading that he had a right to issue, wrote across its face “to be dipped and re-shipped,” delivered it to plaintiff, and had the car transported to Bogalusa to be unloaded at the Sheridan pen, to the end that plaintiff might dip the cattle and immediately re-ship them to market. But when the car arrived at Bogalusa, other agents of ’defendant thought that if the cattle were unloaded at the Sheridan pen, or hauled out of Bogalusa after having been dipped there, defendant might get into trouble with the Court and the city authorities. The car was therefore stopped at its own pep, unloaded, and plaintiff called on to receive them there and pay the freight. The plaintiff declined to do so, and insisted that defendant transport the car to the Sheridan pen, to the end that it might be unloaded there, the cattle dipped and from thence re-shipped to market in conformity with the provisions of the bill of lading. Defendant refused to transport the car to the Sheridan pen. The plaintiff testifies, and we are satisfied that such was the case, that defendant not only declined to transport the car to the Sheridan pen but declined to haul any more cattle out of Bogalusa that had been dipped at- the Sheridan pen, and it so informed the " plaintiff by its agents.

The defendant offered evidence to the effect that plaintiff, if he wanted to, could have received the cattle at the railroad pen and have driven them to the Sheridan pen at an expense not exceeding ten dollars. We have considered that such could have been done and the cattle driven back to the railroad pen; that it was plaintiff’s duty to. minimize damage, etc. But in the face of the evidence that we have accepted that defendant would not transport away from Bogalusa any more cattle that had been dipped at the Sheridan pen, nothing would have been accomplished by driving the cattle from the railroad pen to the Sheridan pen, dipping them there, and driving them back to the railroad pen. The cattle would still have been on plaintiff’s hands, and he would have been powerless to get them to market in tick free territory. We have also considered that plaintiff might have driven the cattle to some other railroad', but if he had tried to reach a market in that way, the expense would have been such, that the cattle would have been as good as lost to him. The defendant was at fault for receiving the cattle and transporting them to Bogalusa under the contract in question. The act of the defendant reduced plaintiff to th.e necessity of selling his cattle at Bogalusa for what he could get, or else driving them away and going to some other railroad and shipping them over it to -market if he could, the expense -of • which, --would have left him practically nothing; or else he could have abandoned them at Bogalusa to defendant, as he did, and claim their value.

The district judge after reviewing the case in a written opinion reachd the conclusion that the defendant was liable to the plaintiff for the value of the cattle, and we have come to the same conclusion.

Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.

The district judge value that cattle at $1440.00, allowing interest at five per cent on the amount from July 28, 1928, until paid.

We have considered the question of value and the evidence does not warrant a reduction of the amount.

The plaintiff in answering the appeal, prays that the amount be increased. We do not think this request should be granted.

The check for $601.90 contained in the record, and which represents the net proceeds of the cattle left after the expenses of their keeping and sale had been paid, should be turned over to the plaintiff, and when paid, the amount should be credited on the judgment herein, and it is ordered that it be done. Subject to said conditional credit, the judgment appealed from is correct and will be affirmed.

Judgment' affirmed. Defendant and appellant to pay the costs in both courts.


text:
    No. 10,375
    Orleans
    QUEEN v. MANHEIM ET AL.
    (November 26, 1928. Opinion and Decree.)
    Borah, Himel, Block & Borah, attorneys for plaintiff and appellee.
    Spearing, Miller & Mabry, attorneys for defendant and appellant.
   WESTERFIELD, J.

Plaintiff was struck and injured by an automobile. He sues for damages. Prom a judgment for plaintiff for $250.00, defendants have appealed.

In this court the defendant, Bernard Manheim, through his counsel, admitted liability, his co-defendant, J. K. D’Avricourt, persists in his denial of responsibility.

The plaintiff was standing, at the corner of St. Charles Avenue and Third Street, waiting for a street car, when the defendant, D’Avricourt, drove his heavy Cadillac car upon the neutral ground, striking and injuring him, in the manner set forth in his petition. D’Avricourt contends that he was forced to drive upon the neutral ground because any other course would have resulted in a collision with the Ford car, owned by the defendant Manheim, and, at the time of the accident, driven at a high rate of speed.

The Ford was proceeding across St. Charles Avenue from the lake to the woods, and the Cadillac going up St. Charles Avenue, from the direction of Canal Street' towards Carrollton Avenue. The evidence convinces us that the accident was due to the fact that the speed of the Ford car was excessive, and its driver failed to stop before entering the avenue, and, that the Cadillac, which had the right of way, was driven upon the neutral ground in an effort to avoid a collision with the Ford, which seemed imminent. Unlike the trial judge, we attribute the cause of the accident solely to the negligence of the driver of the Ford car and absolve the driver of the Cadillac car.

The nature of the injuries sustained by plaintiff is said by his physician to be “a sprained ankle and partial detachment of the ligaments tying the bones together in that ankle.” His foot was bandaged and he was confined to his room for fifteen days. He had been engaged as a janitor of a church on Napoleon Avenue and S. Robertson Street, at $50.00 per month, his employment to begin about nine days after the accident. This position he lost because of his injuries. He payed his doctor $50.00, in addition to $7.50 paid to a radiologist fo‘r an x-ray. Under the circumstances it seems to us that an award of $250.00 is inadequate. It should be increased to $350.00.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff to $350.00, and as thus amended, affirmed as against the defendant, Bernard Manheim.

It is further ordered that there he judgment in favor of J. K. D’Avricourt dismissing plaintiff’s suit.


text:
    No. 293,368
    First Circuit
    MILLER v. DOYAL
    (May 8, 1928. Opinion and Decree.)
    (June 12, 1928. Rehearing Granted.)
    (December 4, 1928. Opinion and Decree on Rehearing.)

      Williams & Blackshear, of Oakdale, attorneys for plaintiff, appellee.
    C. D. Reed, of Oakdale, attorney for defendant, appellant.
   LECHE, J.

The matter at issue in this case is the ownership and possession of a mule. Its identity is not questioned in this Court, and its description therefore • is unnecessary. It is not disputed that the mule at one time belonged to plaintiff, but defendant claims title by purchase from one Nick Parrino, who acquired by purchase at public sale, said to have been made in conformity with all the requirements of law.

The value of the mule is not stated in plaintiff’s petition nor in the answer of defendant, but defendant makes claim for $50.00 damages for the wrongful issuance of a writ of sequestration which was obtained by plaintiff.

It appears from the testimony that Nick Parrino bought the mule at public auction for twenty-four dollars and that he sold it to defendant for fifty dollars.

Question: Have we jurisdiction of this case on appeal?

Assuming the value of the mule to be fifty dollars and that the claim for damages is not inflated and that it is made in good faith, the whole amount in dispute does not exceed one hundred dollars, tin- ; der Section 48, Article VII, of the Constitution, where the amount in dispute does not exceed one hundred dollars, concurrent jurisdiction is vested in the District Court and the Justice of the Peace Court. The amount in dispute here does not exceed one hundred dollars and therefore is below our appellate jurisdiction as fixed by Section 29 of Article VII of the Constitution.

For these reasons, acting ex proprio motu, it is ordered that the present appeal be dismissed. Sennette vs. Police Jury, 129 La. 728, 56 So. 653.

ON REHEARING.

LECHE, J.

Plaintiff as owner, sues for the recovery of a mule alleged to De. in the illegal possession of defendant. The defendant answered that he bought the mule from one Nick Parrino, who bought it at a public sale made by the impounding officer of Cheneyville, in Rapides Parish. That said public sale was preceded by all the formalities required by law, and defendant then prayed that plaintiff’s demand be rejected.

The District Judge granted plaintiff’s demand and defendant has appealed.

After a former hearing, we held that the demand was not within our jurisdiction and dismissed this appeal. On application for rehearing, it was discovered tliat proof was offered and admitted without objection, that the mule at' the time this suit was filed, had become worth the sum of one hundred twenty-five dollars. It is therefore apparent that our ruling in dismissing the appeal was erroneous and our former decree is therefore set aside.

The salient facts are that the mule in question was an estray, was taken up while roaming at large and impounded by the impounding officer at Cheneyville in the Parish of Rapidés. Not knowing whose property the animal was, and no one appearing to claim it, the impounding officer then proceeded to dispose of the mule1 in accordance with the police regulations of the Parish of Rapides.

The main requirements of that ordinance are that upon taking up of any stock by the impounding officer he shall immediately notify the owners of said stock by publication in the official journal of the Parish of Rapides and by posting said notice in a conspicuous place in the towns of Lecompte and Cheneyville in the Parish of Rapides. That after the expiration of five days from the impounding of said stock, and five days after the publication of said notice, an<t the owner of said stock has not come forward and claimed same, it shall then be the duty of the impounding officer to advertise the stock for sale by inserting in one issue of the official journal of the Parish and by posting in a conspicuous place in the towns of Lecompte and Cheneyville, in the Parish of Rapides.

It is not disputed that the impounding officer failed to carry out the specific provisions of the police regulations of the Police Jury of the Parish of Rapides, which requires the posting of notices and which fixes the delays that should expire previous to the advertisement that should precede the sale. The trial Judge found that these formalities had not been complied with, and hence his judgment in favor of plaintiff. We find nothing in the record, nor does defendant in his argument, point out any evidence to discredit this conclusion of fact. The mere statement by one of the witnesses that the requirements had been complied with is not evidence of that fact, but is simply an expression of opinion on the part of the witness that such fact exists.

It is elementary that a police regulation which in its enforcement, divests a citizen of his property without ordinary citation and without a hearing in court, must be strictly complied with. The publication and posting of notices which must of necessity, be substituted for ordinary judicial process, must be observed to the letter in order to constitute due process of law. It is virtually conceded by defendant’s argument that there was no strict observance of these formalities. It therefore follows -that plaintiff was deprived of his property without due process of law. '

Defendant earnestly contends that plaintiff in this case, is attempting to collaterally attack the validity of the sale made by the impounding officer. Plaintiff is suing for the possession of a mule and recognition of his ownership thereof. It is not controverted that the mule did at one time belong to him, but defendant claims title as the result of a sale alleged to have been made by an impounding officer who was acting under the police regulations of the Parish of Rapides. It is encumbent on defendant to establish the validity of his title and to show that plaintiff’s title was legally divested. We do not' believe that plaintiff is collaterally attacking the validity of the sale, for that issue is the real basis of the defense- and the validity of the sale must' be shown by defendant, without the necessity of any attack on the part of plaintiff.

Defendant also contends that plaintiff is not in a position to argue the unconstitutionality of the ordinance under which the impounding officer was acting. He may be right in this contention, but we express no opinion thereon. We believe that defendant has failed to show a legal divestiture of plaintiff’s admitted past ownership of the mule, that conceding the ordinance to be legal and constitutional its requirements have not been complied with and that the mule still belongs to plaintiff.

For these reasons the judgment appealed from is affirmed.


author: MOUTON, J. MOUTON, J.

text:
    No. 205
    First Circuit
    UPPER CITY TIRE CO., INC., v. JONES
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing granted restricted to claim in reconvention.)
    (December 4, 1928. Opinion and Decree on Rehearing.)
    ‘Milling, Godchaux, Saal & Milling, of New Orleans, and Chappuis & Chappuis, of Crowley, attorneys for plaintiff, appellee.
    Philip S. Pugh, of Crowley, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant for the price of auto tires, tubes, etc., amounting to $213.30, with legal interest from judicial demand, for which he recovered judgment. Defendant appeals. These automobile accessories were bought by defendant through one Kirby, salesman for plaintiff company.

The defendant alleges that all these tires and tubes were defective, rotten and worthless. He avers that he returned six Batavia tires and fifty Exton tubes to plaintiff on or about July 21st or 22nd, 1926, and» eight tires on August 28, 1926; that he delivered twenty-one tires to Kirby who took them in an automobile, promising to ship to defendant in lieu thereof seven Phelps tires and fourteen Exton tires, but that they never were replaced by plaintiff. He also evers that he shipped eight tires to the Crescent Tire Company of New Orleans. These shipments, he alleges, were done under the advice or instructions of Kirby.

Grundy, president of plaintiff company, says that the tires and tubes defendant claims to have returned August 28, 1926, were never received by his company; nor the twenty-one, defendant says were loaded in Kirby’s auto, and eight he claims to have shipped to the Crescent Tire Company of New Orleans. There is nothing to show that the twenty-one tires turned over to Kirby were ever returned to plaintiff, or that Kirby, who was a mere salesman of plaintiff, had any authority to make such an adjustment. The proof offered by defendant also fails to sustain his contention that on August 2'8th, he returned the eight tires above referred to.

Defendant contends he should recover $81.00 which plaintiff received by draft from him for six Batavia tires that were defective and worthless. These tires are not charged to defendant and he is not entitled to any credit therefor.

LECHE, J., dissents, being of the opinion that the judgment of the District Court should be affirmed in whole.

ON REHEARING

MOUTON, J.

The rehearing was granted restricted to the claim by defendant for eighty-one dollars, in reconvention.

Defendant sent a check for that amount to plaintiff for six Batavia Tires. The check was collected by plaintiff.

It is shown by the testimony of defendant and Hartwell that the tires were rotten, and worthless, and that they were returned by defendant to plaintiff.

Plaintiff’s domicile is in New Orleans, and defendant resides in Acadia, in a Parish different from that of plaintiff which entitled him to urge his claim in reconvention against plaintiff for any catise, although not connected or incidental to the main demand. C. P. 375.

As the tires were rotten and without value, defendant is entitled to the recovery of the eighty-one dollars paid plaintiff therefor.

It is therefore ordered, adjudged and decreed that the judgment appealed from denying the reconventional demand of defendant for eighty-one dollars for said tires be avoided and reversed; and in that respect our original judgment affirming the judgment below be likewise avoided and annulled.

It is now further ordered and decreed that defendant have judgment against plaintiff on his reconventional demand for the sum of eighty-one dollars, with five per cent per annum interest thereon from October 1, 1926, until paid; that plaintiff paid the cost of the reconventional demand, the cost of the main demand be paid by defendant; and, as thus amended, the judgment below be affirmed, and the judgment of this Court be accordingly amended.


text:
    No. 10,466
    Orleans
    GARRETT v. VERLANDER
    (November 13, 1928. Opinion and Decree.)
    H. W. Robinson, of New Orleans, attorney for plaintiff and appellee.
    Cabajal Gaudet, of New Orleans, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit on a building contract. Plaintiff entered into a written contract with defendant to erect a building in Audubon Boulevard. There was included in the contract certain paving for which $450.00 was the price agreed on in the contract. The building was erected to the satisfaction of defendant, but a dispute arose concerning the paving, and the amount due for this work was withheld by the defendant and is sued for here. From the judgment for plaintiff as prayed for, the defendant has appealed.

The defendant, under the terms of the contract, designated Sam Stone, Jr., as his architect, who prepared the plans and specifications for the paving which was constructed under his supervision. The question presented is whether the paving complied with the plans and specifications.

It appears that, shortly after the paving was laid, due to subsidence of the soil, the building settled with the result that the paving cracked. The cracked portion was relaid by the contractor, approved by Mr. Stone, the customary certificate issued, and presented to Mr. Verlander, who refused payment.

There is reliable testimony to the effect that Mr. Verlander also approved the paving as relaid and agreed to pay for the work. This is denied by defendant, but his denial so qualified as to weaken its force. The specifications required the paving to be graded, drains installed and the finish to be with steel trowel and brought to a polish. The defendant complains that the paving was rough, sandy, and not graded in such manner as to cause water to flow into drains; that the drain was not properly placed, was inefficient, and that no expansion joint was originally provided for.

In support of defendant’s position, a witness by the name of Redmond testified that he had fifteen years’ experience in concrete work, and, was well informed as to the quality of paving, that he considered the paving to be “a very punk job”, and that he would not accept it if it were his. In addition to Mr. Redmond, Mr. Thomas testified that he considered the work improperly done, but he does not appear to be expert in paving work, his principal occupation being that of carpenter.

On the other hand, a very well known paving contractor, Mr. B. C. Grasser, testifying for plaintiff, declared the work to have been done in accordance with the plans and specifications, and found no fault with it. Mr. Sam Stone, Jr., defendant’s architect, testified that the paving had been laid under his direction as supervising architect, and that it substantially complied with the plans and specifications, and that he had issued his certificate to that effect; that the paving was properly graded, explaining that where the trowel finish is required, slight depressions caused by the trowel are inevitable,' and that the water would settle in these depressions; that as to the settling of the building, which had caused the cracking in the pavement, there was no way to prevent the settlement, and no fault could be imputed to the paver, since the settling could only be prevented by the driving of piles.

• The burden of proof rested upon defendant. Blodgett Construction Co. vs. Cheney Lumber Co., 129 La. 1057, 57 So. 369. He has entirely failed to sustain this burden. We are convinced that the contractor substantially complied with his contract. He was not obliged to do more. Peterson vs. Peralter, 3 La. App. 516; Stewart vs. Dixie Laundry Co., 6 La. App. 153. Moreover, where an owner employs an architect to supervise the construction of any work, the opinion of the architect approving the construction, and his certificate evidencing such approval, may not be lightly disregarded. Dugue vs. Levy, 114 La. 21, 37 So. 995.

For the reasons assigned, we consider the judgment appealed from correct, and it is hereby affirmed.


text:
    No. 11,712
    Orleans
    NEWLIN, PUBLIC ADMINISTRATOR, v. NEW ORLEANS PUBLIC SERVICE INC.
    (October 29, 1928. Opinion and Decree.)
    (November 13, 1928. Rehearing Refused.)
    (January 3, 1929. Decree Supreme Court, Writ Refused.)
    Ross E. Breazeale, of New Orleans, attorney for plaintiff and appellee.
    Dufour, Rosen & Hammer, of New Orleans, attorneys for defendant and appellant.
   WESTERFIELD, J.

The Public Administrator, proceeding by rule, seeks to obtain from the defendant, a public utility corporation, the exclusive dispenser of gas and electricity in this community and the successor of other public service corporations, variously styled, which formerly dispensed gas and electricity in this city, a list of deposits, unclaimed and uncalled for, for a period of ten years prior to September 1, 1928, made with defendant’s predecessors, and now in the possession of defendant, together with the. amounts thereof and the last known addresses of the owners thereof. It is alleged, that defendant has in its possession numerous deposits received by its predecessors, over a period of years, which have been abandoned by the depositors or the owners thereof; that under the provisions of Act 14 of 1926, the Public Administrator is directed to obtain from all depositories in the Parish of Orleans, a complete list of all persons, who have on deposit' with it, any funds which have been uncalled for or unclaimed for a period of ten years prior to August 15, 1926; that the act referred to required all depositories to furnish mover a list of all such funds, together with the last known residences or addresses. of. persons making the original deposit; that the State.,of Louisiana, by virtue of act referred to, as well as under tbe general provisions of tbe Civil Code affecting the administration of vacant estates, is entitled to the administration of all funds, the owners, of which are unknown or have not been heard from, for a period of ten years prior to the first day of September, 1928.

Defendant filed a general denial and by way of special defense, averred that the sums received by its predecessors, from time to time, were deposited as security for the payment of gas and electric bills, which might thereafter become due, as well as, for the safe return of the property installed in the premises to which gas or electric service had been furnished by its predecessors. It especially denied that it' is or that its predecessors were, depositories within the meaning of Act 14 of 1926.

Prom a judgment making the rule absolute defendant has appealed. No list of deposits made with the defendant company is asked for, for the reason, perhaps, that the defendant has not' enjoyed corporate existence for a period of ten years. However, the funds, a list of the owners of which, is asked for, are in possession of the defendant, and, if an accounting, such as is asked for in this proceeding, is to be made, it is admittedly due by the defendant.

The act under which plaintiff proceeds (No. 14 of 1926) provides:

“In all cases when it shall appear that bank boxes, safe deposit boxes or other receptacles, and the contents thereof, or property or funds or other things of value, deposited or left with or in any bank or trust company qr qther depositories or hands, in the City of New Orleans, otherwise than in the checking or savings department of such bank or trust company, stand in the names of persons who are absent, and not represented and have not been heard from for a period of ten years or more, the Public Administrator for the Parish of Orleans shall proceed to administer upon such bank boxes, safe deposit boxes or other receptacles, and the contents thereof or other things of value, in the same manner as is now or may hereafter be provided by law for the administration of vacant successions; and to that end, he shall have the right to demand of every bank and trust company or other depositories in the City of New Orleans, and each such bank or trust company or other depositories, are hereby required to furnish to him, on August 15, 1926, and annually thereafter, complete lists of all persons who have on deposit with or in its (otherwise than in its checking or savings department) bank boxes, safe deposit boxes, or other receptacle, and the contents thereof, or property or furids (or) other things of value, and have not called for or claimed same for a period of ten years or more next preceding August 15 of the year in which such lists are furnished, together with the last known residences or addresses of such persons and descriptions of the things so deposited.”

It is the contention of defendant that only banks, trust companies or other depositories are contemplated by Act of 1926 and that defendant is neither a bank nor a trust company, nor a depository within the meaning of the act. A number of receipts covering the deposits were offered in evidence, all' of which referred to the sum, the payment of which the receipt acknowledged, as a deposit, some of these receipts stipulate that the deposit will be repaid upon discontinuing the service with 5% per annum interest, others with 4% per annum, and others with 6% per annum, all of them stipulate that all indebtedness must first have been discharged before repayment and some that interest shall be reckened only up to the date when service has been discontinued. Notwithstanding the use of the word deposit in the receipts, the defendant contends that, as a" matter of law, such funds cannot he so regarded, because, there are only two kinds of deposits recognized under the Civil Code (sequestration excepted). That is to say, a regular deposit, where a person receives the property of another with the obligation to return it in kind and an irregular deposit, where the obligation is to return a thing of like value, or weight, and not necessarily in kind, as where a deposit of money is made. R. C. C. 2948 and 2955.

It is argued, that the deposits held by the defendant cannot be classified as either regular or irregular deposits, but that the relation between the recipient of the deposits and the depositors was that of pledgor and pledgee under Article 3133 R. C. C.; that the transaction with respondent’s predecessors differed from irregular deposits in that interest was stipulated to be paid upon certain conditions, whereas the depository owed interest from the date of his default, and only then.

Without attempting an intricate analysis of the transaction, it is obvious that, if there are in the possession of the defendant company any abandoned funds belonging to persons unknown, or who cannot be found, the defendant cannot assert any claim of ownership, and that if the act referred to is susceptible of the construction which would permit the recovery of the possession of such funds by the Public Administrator, it should be so construed. In other words the Act should be liberally construed, in favor of the plaintiff in rule.

Turning now to the Act, itself, we find that “in all cases when it shall appear that bank boxes, safe deposit boxes or other receptacles, and the contents thereof, or property or funds or other things of value, deposited or left with or in any bank or trust company, or other depositories or hands * * * stand in the names of persons who are absent or represented * * * the Public Admiinstrator for the Parish of Orleans shall proceed to administer * * * and to that end it shall have the right to demand of every bank or trust company or other depositories.”

It will be observed that the plain intendment of the act is that the Public Administrator should receive possession of abandoned property in banks, trust companies, depositories “or hands” in the City of New Orleans. It' is- true that in authorizing the Public Administrator to demand a list of the names of owners of abandoned property, the words “or hands” are not repeated, but we deduce the meaning of the act, by consideration of it in its entirety and viewed in that light, there cannot be any question but that it was intended to embrace a -situation like the present, and to authorize the Public Administrator to demand the list asked for in this proceeding.

We might add, that whatever may have been the original conditions surrounding the payment of this money, to the predecessors of defendant, it is now held.by the defendant company unconditionally, since, whatever charges may have been due, under the terms of the original receipts, as against the sums deposited, in the ten-year period of inactivity, must have been adjusted long ago.

Our conclusion is that the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 10,922
    Orleans
    BENEDICT v. NEW ORLEANS PUBLIC SERVICE INC.
    (October 29, 1928. Opinion and Decree.)
    (November 13, 1928. Rehearing Refused.)
    (January 3, 1929. Writ Refused by Decree of Supreme Court.)
    Geo. Sladovich, of New Orleans, attorney for plaintiff and appellant.
    Benj. W. Kernan, of New Orleans, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues the local street railway company claiming ?1,725.00 as damages for personal injuries, alleged to have been sustained while a passenger in one of defendant’s cars as a result of a collision between the car and an automobile, at the intersection of Louisiana Avenue and Saratoga Street.

It is' alleged that the accident was due to the “reckless” speed of the street car, and, to the fact, that the car was not under control as it approached the crossing at the intersection of Louisiana Avenue and Saratoga Street.

The case was tried by a jury in Division “A” of the Civil District Court and a verdict returned for defendant.

Plaintiff’s alleged injuries are said to consist of a compound fracture of the ribs of his right side, which, it is alleged, was caused by his .being thrown violently against the back of the seat in front of him, due to the sudden and violent stopping of the street car.

The record establishes, that the accident was due to the attempt of a woman, whose name is not given, who was driving an automobile across Louisiana Avenue, to “beat” the car across the intersection. She failed because the engine stopped suddenly or “stalled”, when the rear end of the automobile was crossing the street car tracks. It is difficult to understand, how plaintiff could have been as seriously injured as he claimed, because, according to the evidence, the automobile was only slightly damaged, nothing more than a bent fender, which could not have caused a very violent jolt. After the accident the motorman and conductor inquired of all the passengers whether anyone had been hurt and according to their testimony, no one claimed to have received any injuries. A policeman, hy the name of Berry, in addition to the motorman and conductor, testified that the impact' was very slight and the injury to the automobile negligible.

Assuming, however, that plaintiff was injured ' in the manner claimed, there is absolutely no proof of negligence on the part of the street' railway company, and the accident is shown to have been caused by the negligence of the driver of the automobile. Counsel seems to be under the impression that street cars are obliged, by reason of some rule which he does not mention, or some ordinance which he does not cite, to stop at every intersection before crossing, and proceeding on its way. We are aware of no such obligation resting upon street railways, we know of no law and we would not deem it expedient. If street cars were compelled to stop at all intersecting streets, or even to slow down to such an extent as to permit of prompt stopping, it would be but little more convenient and not much faster for passengers than walking.

The evidence in this case shows that the street car was running at the rate of fifteen miles per hour, and, that proper steps were taken to check its speed when the motorman observed that the automobile was stalled. It seems to us, that all proper precautions to avoid contact with the automobile were taken, and that the emergency was created entirely by the fault of the crossing automobile. Whatever jolt there was, whether slight or severe, was unavoidable. See Basey vs. Louisiana Railway and Navigation Co., 137 La. 452, 68 So. 824, L. R. A. 1915E, 964.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,355
    Orleans
    THE FRANKELITE COMPANY v. WINTELER ELECTRIC CO., INC., ET ALS.
    (October 29, 1928. Opinion and Decree.)
    Weiss, Yarrut & Stich, of. New Orleans, attorneys for plaintiff and appellee.
    H. W. Robinson & F. B. Freeland of New Orleans, attorneys for defendants and appellants.
   WESTERFIELD, J.

This is a suit on an open account in which plaintiff sues the Winteler Electric Company, Inc., A. P. Winteler and Paul P. Ebeyer, in solido, claiming $167.08. There was judgment as prayed for and the defendants, Winteler and Ebeyer, have appealed.

The defendants, A. P. Winteler and Paul P. Ebeyer, formed the partnership of Ebeyer and Winteler Company. Subsequently Ebeyer withdrew from the partnership and Winteler acquired his interest. Later, January 18, 1926, the Winteler Electric Company, a Louisiana corporation,-was organized. The merchandise making up this account was purchased on November 23, 1925, approximately two months before the corporation was organized and about five months after Ebeyer had Sold his interest to Winteler, that transaction having occurred in June, 1925. At the time of the sale, therefore, Winteler was in full possession of the business on his own account. He admits having bought the goods and there can be no question of his liability. As to Ebeyer it is contended that having sold his interest in the partnership to Winteler he is not liable for Winteler’s obligation incurred at a time subsequent to the dissolution of the partnership. In reply to this contention plaintiff points to the fact, as established by the evidence, that notwithstanding the sale 'of Ebeyer’s interest to Winteler, Winteler with the permission of Ebeyer conducted the business in- the name of the partnership and that consequently in thus lending his name to the business he is responsible to third persons, who may have been induced to extend credit by reason of the presence of his name which they would not otherwise do.

In support of this proposition we are referred to Johnson vs. Marx & Levy, 109 La. 1036, 34 So. 68, where it was held:

“If one lends his name as a partner, or suffers his name to be used in the business, he is responsible to third persons as a partner, for he may induce third- persons .to give credit to the concern which otherwise it would not enjoy.”

And again—

“Jacques Levy, by permitting his name to remain in the partnership, imparted to it a credit it might not otherwise have obtained. He permitted Armand Levy to do business as though the old firm were still a going concern. He thus consented to the holding of himself out to the community as still a partner, and as parties hold themselves out to a community so will they be bound on their contracts. Perez vs. Ry. Co., 47 La. Ann. 1392, 17 So. 869.”

We are also referred on this point to the case of McDaniel & Porter vs. Feitel Weil Company, 5 Orl. App. 195.

Defendant concedes the correctness of the principle invoked, as announced in the cited cases, but argues that it has no application here, for the reason that Ebeyer in severing his relation with his partnership notified plaintiff that he was no longer connected with the business. Without discussing the effect of such notice, we observe, that, from our appreciation of the evidence, it was not proven. The testimony relied upon as establishing the fact of notice is given by Winteler, who states, that, at the time he took over the assets and liabilities of the partnership of Ebeyer and Winteler Company (June, 1925), he notified plaintiff’s salesmen, and also sent the plaintiff company a letter “in 1926 and sent them a check on account.” At another point in his testimony he says that he mailed the plaintiff a corporation check for $50.00, meaning a check of the Winteler Electric Company, and, the statement attached to plaintiff’s petition shows a credit of $50.00 under date of Juné 21, 1926.

It is apparent, therefore, that the letter referred to by Winteler, as giving notice of the sale of Ebeyer’s interest in the partnership, was a letter written subsequent to January 18, 1926, the date of the organization of the corporation, and, long after June, 1925, the date on which Ebeyer sold to Winteler. There is no evidence in the record to show that any letter was written to the plaintiff company concerning Ebeyer’s sale to Winteler prior to November 23, 1925, the date on which the merchandise, for the price of which this suit is entered, was sold to Winteler, doing business, at that time, under the name of Ebeyer and Winteler Company.

We conclude, therefore, that this case falls within the principle of the authorities cited to the effect that one who permits his name to be used as a partner so as to induce third persons to extend credit, which otherwise they would not do, is liable as a partner.

For the reasons assigned the judgment appealed from is affirmed.