text:
    No. -.
    First Circuit
    BRENARD MANUFACTURING COMPANY v. LEVY, INC.
    (January 21, 1925, Opinion and Decree)
    (May 5, 1926, Rehearing Granted)
    (January 28, 1926, Opinion and Decree on Rehearing)
    (Original Opinion, 2 La. App. 577)

      (Syllabus by the Editor.)

    ON REHEARING
    1. Louisiana Digest — Obligations—Par. 76, 100.
    A contract which required one to furnish a bond to protect the other’s commission made in selling phonographs will not be required where the agency was relinquished before the necessity for the bond arose.
    2. Louisiana Digest — Evidence—Par. 216, 262.
    Under Articles 2276, 2242 and 2236 of the Civil Code, parol evidence to establish an independent or contemporaneous contract in conflict with the provisions of the written agreement is not admissible.
    (See 2 La. App. 577)
    Howell and Wortham, of Convent, attorneys for plaintiff.
    Geo. S. Guión, of Convent, attorney for defendant.
   ELLIOTT, J.

A rehearing was granted in this case in order that the questions urged in the petition of M. Levy, Inc., defendant, for rehearing, might be further considered. Defendant, M. Levy Inc., complains that our first opinion and decree is erroneous, in holding that the bond provided for in the contract had been eliminated from the case. The written contract bound plaintiff, the Brenard Manufacturing Co., to send defendant a bond, for the purpose of protecting the commissions which defendant might earn as plaintiff’s agent, in selling phonographs, other than the three bought at the time. Subsequently, on December 7, 1920, defendant relinquished the agency stipulated in the contract, without having sold any phonographs. Consequently, there could be no no commission due the defendant under the contract. As there was no commission to protect, there was no need for a bond. The question of bond under the contract was eliminated, when defendant relinquished the agency to sell phonographs for the plaintiff.

Defendant also contends that parol evidence was admissible for the purpose of showing that at the time the written contract and the notes sued on were signed, that plaintiff, through their agent, by verbal collateral and contemporaneous agreement, bound themselves to deliver the phonographs, at least two weeks before Christmas and send a man to Napoleonville to assist in disposing of them during the holidays. That our opinion and decree holding that parol evidence for such a purpose was not admissible and erroneous.

Defendant alleges in its answer that these representations were believed and acted on by defendant in signing the contract and notes. That said representations were false and fraudulent and made to induce defendant to sign the contract and notes, etc. Defendant argues that parol •evidence is admissible to prove fraud, etc.

The written act signed by defendant and accepted by plaintiff, was with the notes annexed to defendant’s answer as part thereof and was before the court at the time of the trial as part of the pleadings.

This written contract is complete, as to every matter provided for and defendant’s answer does not claim that the written contract was incomplete. Therefore the case Davies vs. Bieros, 114 La. 663, 38 South. 488, cited by defendant as controlling, is not controlling. It is not alleged in defendant’s answer that anything was written in the contract and should not have been placed in it; nor that anything was left out of it that should be in it.

Fraud is not alleged to have been perpetrated as to any matter or thing provided for in the written contract. Consequently the question of fraud, does not enter into the written contract. The Articles of the Civil Code, 1819, 1847, 2547, have no bearing and cases like Great Eastern Oil Co. vs. Bulloch, 151 La. 209, 91 South. 680, and Thomas vs. Kennedy, 24 La. Ann. 209, are not applicable to the question in hand.

The alleged collateral contemporaneous verbal agreement is not admissible in this case, because it contains a condition inconsistent with the written contract and would supersede it, leaving it without effect.

The written contract provides that plaintiff can deliver the phonographs at their “earliest convenience” and “unusual delays from strike, fire§, accident and other causes beyond our control, shall extend the agreement for a like period”. It also provides as follows: “In order to protect you in your special methods and plans and in your expenditures, this order can not be countermanded”.

The alleged parol contract, requires delivery at least two weeks before Christmas and that a man be sent to Napoleonville to assist in selling the phonographs during the holidays. The written contract does not oblige plaintiffs to deliver the phonographs before Christmas. The alleged verbal undertaking to send a man to Napoleonville to assist in selling the phonographs during the holidays, is not only inconsistent with the written contract but is something “beyond what was contained in the written act” and therefore is not admissible under the law, C. C., Arts. 2276, 2242, 2286. No definite rule appears to exist, whereby courts can always agree whether an alleged collateral contemporaneous verbal agreement entered into at the same time as a written one can be proved or not in every case. As will be seen by reference to writers on the subject of evidence. Greenleaf, Vol. 1, section 275; Whigmore, Vol. 4, section 2425 et seq; Jones, section 434; Best Principles of Evidence by Chamberlayne, sections 226 et seq. The particular facts in every case must govern the guestion. In this instance the notes which support the written contract, are relied on as the sole support for the alleged verbal .one; but according to the verbal contract, their payment is dependent on compliance on the part of the plaintiff with the verbal agreement and not with the written one and therefore as stated the alleged verbal contract, would* supersede the written one. The case Hafer Mfg. Co. vs. Lieber Lumber & Shingle Co., 127 La. 348, 53 South. 646, pp. 355-6-7, etc., supports our ruling and is cited in our former opinion.

In Goodloe vs. Hart. 2 La. 446, the plaintiff sold and delivered to defendant certain slaves by written act, taking notes in part payment of the purchase price. The vendor brought suit against the vendee to compel payment of one of the notes. The vendee resisted, alleging in his answer that the notes had been given on the express condition, stipulated verbally at the time the act of sale was passed, that the slaves should not run away for twelve months. That two of them had run away within that time and had not returned; therefore defendant should not he compelled to pay the note.

The act of sale did not contain a contingency in the matter of payment of that kind. The defendant offered to prove the alleged verbal agreement, contending that it was distinct separate agreement from the written act; but the plaintiff objected, urging the law C. C., Art. 2276. The evidence was held inadmissible.

In Arguibauve vs. Insurance Co., 106 La. 139, (149), 30 South. 148, the plaintiff alleged that a certain clause in the insurance policy sued on was not ■ to be taken into account by virtue of a verbal agreement entered into with the agent of the insurance company at the time the policy was written. The plaintiff offered to prove a contemporaneous verbal agreement to that effect; but the. defendant objected and the court acting on the objection said:

“The plaintiffs do not allege that there was any misunderstanding or mistake as •to what the contract upon which they sued was to contain; nor do they allege that anything was left out, that they expected would be put in; or was in, that they expected would be left out. Their whole case lies in the proposition that there was a contemporaneous verbal contract which not only varied, but which practically superseded the written contract upon which they sued. This however they are not entitled to prove over defendant’s objection.”

Barthet vs. Estebene, 5 La. Ann. 315; Jackson Brewing Co. vs. Wagner, 117 La. 876, 42 South. 356; Peoples Bank of Donaldsonville vs. National Fire Insurance Co., 130 La. 951, 58 South. 826, are to the same effect. Our reconsideration has confirmed us in our former opinion. Our former opinion and decree is therefore reinstated and made the final judgment of this court herein.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2315
    Second Circuit
    NOBLE v. SOUTHLAND LUMBER COMPANY, INC.
    (April 24, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana . Digest — Estoppel—Par. 1, 31.
    A plaintiff who thinks himself an employee of .the defendant and so testifies, under a statement of facts that clearly shows he Is not, does not bar himself from the right to sue for damages under Article 2315 of the Civil Code.
    Appalachian Corporation vs. Brooklyn Cooperage Company, 151 La. 41, 91 South. 539.
    2. Louisiana Digest — Master and Servant —Par. 153, 154.
    Before a plaintiff can be barred from recovering damages under Article 2315 of the Civil Code, he must not only think he is an employee of the defendant but must actually be such under circumstances that would make the defendant liable to respond to plaintiff in a suit under the Workmen’s Compensation Act. All persons not included in the Workmen’s Compensation Act are excluded therefrom and free to sue for damages under the general law.
    3. Louisiana Digest — Negligence—Par. 11.
    A carpenter who applies for work on a building in course of construction and is told by the foreman to wait until he can see if he needs his services, becomes an invitee during the time he is waiting on the foreman to make his investigation.
    Bell vs. Southern R. R. Company, 132 La. 88, 60 South. 1029.
    4. Louisiana Digest — Negligence—Par. 11.
    A corporation having a building constructed under the supervision of its own foreman is responsible in damages to . one injured by a ■ plank falling from the building onto his head while he is thus waiting as an invitee.
    5. Louisiana Digest — Master and Servant —Par. 105, 144.
    Where the cause of an accident resulting in damage to plaintiff is more properly within the knowledge of defendant, proof of the accident itself makes out a prima facie case of negligence on the part of defendant under the doctrine of res ipsa loquitur and the burden is on defendant to show absence of negligence on its part.
    Dodson vs. La. Central Lumber Co., 144 La. 78, 80 South. 205.
    Lykiardopolilos vs. N. O. Light and P. Co., 127 La. 309, 53 South 575.
    White vs. Maison Blanche Co., 142 Lo. 265, 76 South. 708.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. R. Stephens, Judge.
    Action by Eliot M. Noble against South-land Lumber Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. W. McDonald, of Shreveport, attorney for plaintiff, appellee.
    E. W. & P. N. Browne, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, a carpenter, applied to defendant’s foreman for employment on a building of defendant’s in course of construction and was told to wait a minute until he, the foreman, could ascertain if he needed plaintiff’s services; and while ,so waiting a piece of plank fell from the building on to plaintiff’s head, causing a severe injury.

.Plaintiff brought this suit to recover damages for the injuries so received.

Defendant denied liability, and, in the alternative, alleged that plaintiff was guilty of contributory negligence; that he was a trespasser on its premises; that he knowingly and voluntarily' unnecessarily exposed himself to danger; and that he was warned by its foreman to avoid the danger.

On these issues the case was tried by a jury and judgment was rendered in favor of plaintiff for $500.00.

Defendant appealed and plaintiff has answered the appeal and asked that the damages be increased to the amount claimed in the petition, $10,450.00.

OPINION

On the trial of this case plaintiff testified that he was employed by defendant’s foreman on the Saturday preceding the day the accident occurred. He testified, pages 3, 4, 5, 8, 17, 18 and 20:

“Q. Now, did you go back to the premises on the following Monday morning?
“A. Yes, sir, I did.
“Q. Did you see this gentleman there again?
“A. Yes, sir, this same man.
“Q. Did you have any conversation with him that morning about going to work?
“A. Nothing — only I walked up and asked him where he wanted to place me and he said: ‘Just a second’, and stepped away; two or three more were talking to him about some work, and he said: ‘Just a second’, when he stepped away, and that’s all I remember he said until I came to at the car. I don’t know what he done for me.
* * * *
“Q. Now, he said, ‘Wait a minute’, and then stepped aside. After that, did anything happen to you?
“A. Yes, sir, something hit me, I don’t know what it was that hit me, didn’t know at the time, and at the time that I come to myself I was at the car and was bleeding all over. I didn’t know what hit me. I couldn’t testify what hit me at the time. Of course, the man told me afterwards it was a piece of plank.
“Q. Mr. Noble, after you left the premises there on Saturday, why did you go back there on Monday morning?
“A. Because he employed me.
“Q. Who?
“A. The foreman.
“Q. Now just tell the jury what he told you?
“A. Well, I went there on Saturday and asked for a job and he said: ‘All right, I will hire you; you be back here on Monday morning with your tools to go to work, and we go to work at seven o’clock’. So on Monday morning I got in my car and with my tools drove out there and when I came to the job, I went to him and asked him about where he wanted me to work, and he said: ‘Wait a minute.’ That is all I remember. I felt the lick. That is all I remember.
* * * *
“Q. You say you saw the foreman on your first visit and applied .for a job there?
“A. I did.
“Q. Now I don’t know whether I remember you correctly or not, but did you say the foreman or superintendent told you he would give you a job?
“A. He told me to come back to work Monday.
“Q. He employed you then?
“A. Yes, sir.
“Q. He employed you then to work there?
“A. Yes, sir.
“Q. Now, you accepted that as a position of employment?
“A. Yes, sir.
“Q. You did?
“A. Yes, sir.
“Q. So you were actually employed by this company at the time you got hurt?
“A. Yes, sir, because he told me to come back.
“Q. And you accepted the position?
“A. Yes, sir.
“Q. Therefore you were in the employ of.the company at the time you got hurt?
“A. Yes, sir.
;’fi :Jí !H
“Q. On Saturday when you appeared there for work or applied for work, he told you to come back Monday. Did you all agree upon the pay you were to receive?
“A. No, sir, did not, he did not tell me how much he was going to pay me.
“Q. There was- no agreed amount?
“A. No, sir.”

Under this evidence defendant contended that plaintiff was barred from the right of recovery under Article 2315 of the Civil Code.

We do not think so.

If plaintiff had sued defendant for discharging him without cause, it is perfectly clear plaintiff could not have recovered, for there had been no completed contract of. employment.

Defendant’s foreman testified that he had never seen plaintiff before the day of the accident and emphatically denied that he had employed plaintiff. The testimony of the plaintiff that he was employed by defendant’s foreman on the Saturday before the accident is clearly a misconstruction of the facts, for there can be no employment until there is both an employee and an employer. It is clear there had' been no perfected agreement of employment entered into between plaintiff and defendant.

Plaintiff testified that defendant’s foreman said: “I will give you a job”; not that defendant’s foreman had employed him. It therefore follows that plaintiff was not in a position to compel defendant to respond in a suit under the Employers’ Liability Act. He was free, therefore, to proceed with a suit for damages under Article 2315 of the Civil Code, and plaintiff’s incorrect conclusion that the stated condition of facts constituted him an employee of defendant did not estop him from prosecuting this action.

Appalachian Corporation vs. Brooklyn Cooperage Co., 151 La. 41, 91 South. 539.

Defendant also contends that plaintiff was guilty of contributory negligence in placing' himself in a position of danger after being warned by defendant’s foreman not to do so.

This is a question of fact. Three witnesses for plaintiff testified that there was no danger zone at the place of employment, and a like number on the part of defendant testified that there was.

Also three witnesses on the part of defendant swore that plaintiff was warned to stand from under the place of danger, and a like number of witnesses on behalf of plaintiff swore that no such warning was given him.

Defendant’s foreman testified that at the time of the accident all of the workmen on the job had gone to the top of the building and were at work on the roof, but a number of defendant’s witnesses testified that they were at work on the ground floor.

In the last analysis the question to be decided here is one of fact, and the jury who saw and heard the witnesses testify decided this question in favor of the plaintiff, and we think the weight of the evidence sustains their finding.

Defendant further contends that there is no evidence of negligence on its part. The evidence shows that a piece of plank fell from the building upon plaintiff’s head, giving him a severe blow. This fact was sufficient to show negligence and to cast upon defendant the burden of showing that it was not responsible therefor. No explanation of why or how the plank came to fall was offered and the jury was warranted in inferring that it fell because of the negligence or lack of proper care on the part of defendant.

When a thing which causes an injury is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from want of care.

Sherman & Redfield on Negligence, 5th ed. 59.

The doctrine of res ipsa loquitur means that the jury, from their experience and observation as men, ire warranted in finding that an accident of this kind does not ordinarily happen except in consequence | of negligence.

Griffin vs. Boston & Albany Railroad Co.

148 Mass. 143; 19 New Eng. 166; 1 L. R. A. 698.

I It is fundamental that it is the duty of Ian employer to furnish an employee or [invitee a reasonably safe place to work [and to maintain the same in a reasonably [safe condition.

I Common observation and experience ■teaches that a piece of plank when properly handled does not fall of its own accord; and, if it does fall, it is a circumstance from which it may be inferred that the piece of board was carelessly handled or stacked.

There is no negligence on the part of plaintiff shown. While he waited at the building at the request of defendant’s foreman until the foreman could ascertain if he needed his services the plank fell on him and injured him. He did not assume the risk of the defendant failing to have the plank properly handled or stacked.

Graft vs. Vulcan Iron Works, — Pac. 1016.

This brings us to the question of damages.

Under the testimony of Doctors Prank Walke, J. C. Willis, Jr., and J. D Young as to the extent of the injury sustained by plaintiff, the award of the jury appears to us to be entirely inadequate; while under the testimony of Doctors Louis Abramson, W. P. Harmon and J. W. Murphy, the amount of damages awarded plaintiff appears to be excessive.

The jury that tried this case doubtless arrived at its verdict as to the amount of damages suffered by plaintiff from a consideration of the actual conditions that appeared to exist in plaintiff himself.

The evidence being conflicting, we do not see our way clear to change the finding of the jury on the question of damages suffered.

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


author: O'DOM, J.

text:
    No. 2600
    Second Circuit
    ODON v. ATLANTIC OIL & PRODUCING COMPANY
    (April 10, 1926. Opinion and Decree.)
    (June 2, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154, 159.
    Under the Workmen’s Compensation Act, Section 8, Subsection 1 (d), of Act No. 20 of 1914, as amended by Act 216 of 1924, there is no provision for the loss of any part less than two phalanges of any finger except the thumb.
    2; Louisiana Digest — Master and Servant —Par. 154, 159.
    One who loses one phalanx of a finger or one phalanx of several fingers cannot recover compensation under Section 8, Subsection 1 (d), or Section 8, Subsection 1 (e), of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act No. 216 of 1924.
    3. Louisiana Digest — Master and Servant —Par. 160 (d).
    The bill of the dentist incurred by plaintiff and paid by the defendant will be credited to part of the medical bills paid under Section 8, Subsection 5, of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act 216 of 1924.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Edgar A. Odon against Atlantic Oil & Producing Company.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment affirmed.
    Long & MeSween, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   O'DOM, J.

Plaintiff was employed by defendant as a laborer in the oil fields at a weekly wage of $31.50. On May 19, 1925, while at work on a derrick he was accidentally injured and he brings this suit for compensation at $20.00 per week for 400 weeks for total permanent disability under the Workmen’s Compensation Law.

He was awarded compensation at $20.00 per week for ten weeks and the sum of $250.00 for medical, surgical and hospital ■ expenses. The defendant was given credit ■ for $200.00 already paid for compensation and for $198.50 paid for medical, surgical and hospital bills. The plaintiff appealed. The defendant does not complain of the judgment.

OPINION

The testimony shows that on the occasion of the accident the plaintiff received an injury to his lip, had three of his teeth knocked out, and also received a wound on the jaw and one on the nose. In addition thereto, his hand was injured and as a result he lost one phalanx of the index finger, the first phalanx and part of the second phalanx of the second finger, and a portion of the first phalanx of the third finger.

It appears that the wounds on his lip, his nose and his jaw were healed at the time of the trial. He makes no contention that he was seriously and permanently disfigured about the head or face and makes no claim for compensation on that account. His teeth were replaced by a dentist at an expense of $100.00 which was paid by the defendant.

With reference to his hand, he says his thumb is yet a little sore and that he cannot grip things; that when he does so his fingers cramp. He has not done any work since the accident because he says he is not able to work, although he says he has not tried to work. He drives a car and uses that hand* on the wheel to some extent. He says he is not entirely well, and was asked:

“In your opinion, will you ever get well?”

And he said:

“Why, certainly, I will get well, but I will never have any fingers. I will never be able to grow any more fingers.”

According to the testimony, the net and final result of plaintiff’s accident is that he has lost one phalanx of the index finger, the first phalanx and part of the second phalanx of the second finger and part of the first phalanx of the third finger. His hand is not otherwise injured, and all his other wounds have healed, and his.teeth have been replaced. There is no testimony in the record of any disability to labor, except that which results from the loss of those portions of his fingers as already described.

Clause (d) of Subsection 1 of Section 8 of Act 20 of 1914, as amended by Act 216 of 1924, provides compensation for the loss of the fingers and reads in part as follows:

“The loss of the first phalanx of the thumb, or two phalanges of any finger or toe shall be considered to be equal to the loss of one-half of such members, and the compensation shall be one-half of the amount above specified.”

The statute, therefore, does not provide compensation for the loss of any part less than two phalanges of any finger except the thumb. As plaintiff has not lost as much as two phalanges of any finger, he is not due any compensation for the injury to the hand, arid under the decision of the Supreme Court in the case of Fred Bell versus Merchants Cotton Oil Company, handed down very recently and not yet reported, but which became final on March 1 this year, he is not entitled to compensation under clause (e) of Subsection 1 of Section 8 of the statute. Therefore the only compensation which can be awarded plaintiff is for the time he was rendered unable to work on account of the accident.

The testimony shows that immediately following the accident he was sent to a sanitarium where he remained for twenty-six days. At the end of that time he went to his home where he was treated by a physician until July 4 or 5, when he was- discharged. He was, therefore, in the sanitarium and under the treatment of a physician for approximately seven weeks. The court awarded him compensation for total disability for ten weeks at $20.00 per week and gave credit for the amount paid, which was $200.00. Under the law that is as much as he was entitled to receive. He was alsb awarded $250.00 for medical expenses under Subsection 5 of Section 8 of the Act which provides that:

“The employer shall in every case coming under this Act furnish the employee reasonable medical, surgical and hospital services and medicines not to exceed two hundred and fifty dollars in value. * * *>» fc

It is admitted that defendant paid the sanitarium bill amounting to $98.00 and the bill of the dentist amounting to $100.00, a total of $198.50.

But it is in evidence that plaintiff incurred other medical expenses amounting to more than the difference between the amount paid by defendant and the sum due under the compensation- statute as awarded by the court. Therefore the defendant is due the plaintiff the balance of $51.50.

Counsel for defendant in oral argument before this court stated that defendant had sent plaintiff to a dentist of its own selection and had paid his bill amounting to $100.00 and for that reason it should not have credit for that amount paid but should pay that amount on other bills incurred by plaintiff, and suggested to the court that it would have been to plaintiff’s advantage to have the other medical bills paid rather than the fee of the dentist.

Plaintiff, however, is in no position to complain, for we find on page 12 of the testimony that he testified as follows:

“Q. Now, the other physicians that you went to, did they have you go to them?
“A. No, sir; I went to no one except Doctor Cowen and Doctor Crain; of course, they had me to go to the dentist.
“Q. They had you to go to the dentist?
“A. Yes, sir, that was agreed to between us, I suppose about the dental work.”

If it was to plaintiff’s interest to have other medical expense paid by the defendant and he so desired, he should not have agreed to have the dental work done at the expense of the defendant.

We see no error in the judgment of the District Court and it is therefore affirmed with costs.


author: MOT1TON, J.

text:
    No. -
    First Circuit
    BRADSHAW v. WILLIAMS
    (January 28, 1926. Opinion and Decree.)
    (March 2, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    7. Louisiana Digest — Evidence—Par. 333, 334; Sales — Par. 23.
    Although a verbal sale of movable property is good against the vendor or vendee who confesses it under oath, the confession of a third person who is neither the vendor nor vendee cannot possibly prove a verbal sale by admission of ownership.
    Appeal from Vernon Parish, Hon. Hal A. Burgess, Judge.
    Action by W. B. Bradshaw against J. L. Williams, et al.
    There was. judgment perpetuating injunction • to arrest the sale of property seized under a judgment.
    Dowden, one of the defendants, appealed.
    Judgment affirmed.
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   MOT1TON, J.

Plaintiff owned the timber on two tracts of land, known as the Tovery and Jenkins tracts, which he acquired by purchase. J. M. Cook cut 98 stick of pilings and 226 crossties from this timber. These pilings and ties were seized under a judgment Dowden had obtained against Cook in a justice of the ¡peace court.

Plaintiff herein brought suit in the district court of Vernon parish, claiming the ownership of these pilings and ties, and asking for an injunction to arrest the pale thereof. The lower court decreed him the owner and perpetuated the in[iunction.

Dowden appeals.

The crossties have dropped out of the case, thus restricting the issue to the pilings.

Most of the pilings, if not all, came from the Jenkins tract. However this may be, it is certain they were from timber which had been acquired by plaintiff, and which stood in his name when felled by Cook. There is no proof in the record that the title to this timber was ever transferred by plaintiff to Cook by any act of sale, exchange or by any other.

Plaintiff says he took care of the barber, laundry and board bills of Cook. It must therefore be inferred that their relations were very friendly and intimate. He says, prior to his purchase of the timber, Cook’s account with him was something near $380.00; that Cook came up to him and said: “I think I see a way I can pay you”; and said, if plaintiff would put up the money to buy the timber, he would go ahead, work it off and apply it to plaintiff’s account. The timber was then bought by plaintiff, and Cook was put to work in it.

The record shows plaintiff made all the advances for the exploitations of the timber by Cook. Plaintiff and Cook both say the profits realized therefrom were to be applied to Cook’s credit. The pilings as they were cut were all shipped in the name of plaintiff, and were sold by him. There is nothing here suggestive of any change of ownership in the timber from plaintiff to Cook. Plaintiff admits if Cook had made a success of the undertaking he would have paid his debt to him, and that he made the purchase to give Cook a chance to repay him. In the record it is repeatedly stated that the profits Cook was expected to make would be applied to his credit. These statements are a little confusing, but which arises from the way they are stated. Properly analyzed, however, they were intended to convey the meaning that the profits were to go to Cook with a view of paying his indebtedness. Instead of wiping off his debt from what he realized from the timber, Cook’s account continued to increase and had reached the amount of $800.00 or $1000.00 when the pilings were seized. The constable and justice in whose court Dowden obtained his judgment say 'that Cook, testifying in the case, stated Bradshaw was financing him in the pilings business and which, he said, he was operating in Bradshaw’s name on account of judgments which were hanging over him. Cook denies that he so testified. Counsel for Dowden, seizing creditor, says a verbal sale of immovable property is good against the vendor or vendee who confesses it under oath, citing Larido vs. Perkins, 132 La. 669, 61 South. 728. This is true. Whether the property be movable or immovable such a confession binds either vendor or vendee. If Cook had been the vendee or owner of the timber, if he made the confession ascribed to him, he would have been bound thereby. The trouble is he was not the vendee, and his admission could in no way bind, Bradshaw, the plaintiff herein. Bradshaw has made no such admission and stoutly asserts his ownership to the pilings. The admissions of Cook, even if accepted as true, cannot be given the effect of dispossessing Bradshaw of his title thereto. Such being the situation, the pilings were correctly decreed the property of Bradshaw and the injunction was properly perpetuated.


author: LECHE, J.

text:
    No. -.
    First Circuit
    PAN-AMERICAN LIFE INSURANCE CO. v. REYNAUD
    (January 28, 1926, Opinion and Decree)

      {Syllabus by the Editor.)
    1.Louisiana Digest — Fixtures—Par. 2, 4.
    Under Article 468 of the Civil Code a pumping plant which the owner of a tract of land placed upon it for its service and improvement is immovable . by destination.
    2.Louisiana Digest — Privilege—Par. 7.
    The holder of a privilege on a thing, a movable pumping plant which has become part of the realty, an immovable, loses his privilege if he permits the whole immovable to be sold in a foreclosure sale without provoking a separate appraisement on the thing onj which he claims a privilege.
    3.Louisiana Digest — Privilege—Par. 1.
    A privilege, once destroyed remains de-j stroyed and cannot be brought bads into existence.
    Appeal from the Parish of St. MartinJ Hon. James Simon, Judge.
    Action by Pan-American Life Insurance! Company against -L. L. Reynaud, Stauffer! Eshleman and Company, third opponent There was judgment maintaining the thircj opposition and plaintiff appealed.

      Judgment reversed dismissing the third opposition and granting judgment to the plaintiff.
    Eugene McGivney and Soloman Goldman, of New Orleans, attorneys for plaintiff, appellant.
    Yoorhies and Labbe, of Lafayette, attorneys for defendant, appellee.
   LECHE, J.

L. L. Reynaud, the defendant, owned lands in the Parish of St. Martin, which he cultivated in whole or in part, as a rice farm. On the 5th day of January, 1920, he bought from Stauffer-Eshleman & Co., third opponents, a pumping outfit which he installed on his rice farm for the purpose of irrigating the rice orops which he was raising and growing thereon.

On May 25, 1920, Reynaud granted a mortgage of some twenty-five thousand dollars, which was acquired by the Pan-American Life Insurance Company, plaintiff in this suit. The act of mortgage was recorded the same day.

At the same time, May 25, 1920, Reynaud gave another mortgage, inferior in rank however, to that held by plaintiff, for about eighteen thousand dollars, which was also recorded the same day, and which was acquired by the American Bank & Trust Company.

Both of these mortgages bore on the same land on which the pumping machinery bought from Stauffer-Eshleman & Co. had been installed.

It may be stated also, though that fact has no bearing in this controversy, that the Stauffer-Eshleman & Co.’s lien was only recorded on May 11, 1922.

On September 25, 1923, the American Bank & Trust Co., holders of the second mortgage, obtained executory process under which the land mortgaged by Reynaud, together with the buildings and improvements thereon, or to be erected, right, ways, privileges, and appurtenances thereunto belonging, was sold at public sale on December 1, 1923. That sale brought enough to cover the amount of the first mortgage, which was retained by the adjudicatee the American Bank & Trust Co., and enough to satisfy their second mortgage up to the sum of five hundred and forty-four 31-100 dollars.

Stauffer-Eshleman & Co. made no appearance in that foreclosure and did not intervene or oppose the distribution of the proceeds of sale. The whole property together with the buildings, improvements and appurtenances was adjudicated as aforesaid, to the seizing creditor, the American Bank & Trust Company.

Thereafter, on April 5, 1924, the Pan-American Life Insurance Company, holder of the first mortgage still unpaid, also obtained executory process under which the same property was advertised to be sold and was actually sold on September 3, 1924. In this proceeding St'auffer-E'shleman & Co. intervened, obtained a separate appraisement and sale of the pumping plant which they had sold to Reynaud, and the proceeds of sale of said pumping plant, viz: One thousand dollars was retained by the sheriff and is claimed by them by privilege, preference and priority over plaintiff, the Pan-American Life Insurance Company.

There is some discussion in argument of third opponent as to whether the pumping plant was so attached to the soil as not to be removable. . But that matter is of little importance under the issues in this case, for it is only necessary to pass upon that question in order to determine the kind of privilege, whether it is that of a vendor or that of a furnisher of material, by which the thing or object is secured and whether it can be sold separately and removed without harming the immovable to which it is attached. Such was the question passed upon and decided by the Supreme Court in the case of Walbun-Swanson vs. Darrell, 49 La. Ann. 1044, 22 South. 310. It may be conceded and in fact it is not disputed in this case, that the pumping outfit sold to defendant and installed by him on his land in order to irrigate the same, may be taken away and removed without injury to the land, the immovable upon which it is situated. It may further be conceded that the privilege of opponents if any they have is that of a vendor and that the pumping plant upon which such privilege at one time did exist, could be appraised and sold separately.

It is obvious that the fact that the pumping plant was not so imbedded in the soil as to be irremovable, does not make it a movable any more than a mule or a plow that is purchased and placed upon a farm for its service and improvement, retains its status as a movable because it is not imbedded into the soil. The immovable status of such property is fictitious in fact, but real in law, and that is the purpose of the Code in prescribing that certain movables ' become immovable by destination, C. C., Art. 468 says that “things which the owner of a tract of land has placed upon it for its service and' improvement, are immovable by destination”.

It cannot be nor is it contended that the pumping plant acquired by Reynaud was placed upon his land for any other purpose than its service and improvement.

'When, therefore the sale of December 1, 1923, took place the pumping plant, immovable as part of the realty, was acquired in full ownership by the American Bank & Trust Company. That sale was as valid as if it had been provoked by the first mortgage creditor, the price realized being more than sufficient to pay the outranking and prior mortgage of plaintiff in this proceeding.

The effect on the part of Stauffer-Eshelman & Co. in permitting the land to be sold without intervening and opposing the distribution of the proceeds of sale, was to cancel and annul their privilege, if any they had. The decision in Sundberry vs. Bertie Sugar Company, 145 La. 700, 82 South. 857, wherein the trial judge, in that case, the judges of this court and the writer of this opinion then sitting in the Supreme Court, were of a different opinion, clearly establishes the doctrine that the holder of a privilege on a thing, a movable, which has become part of the realty, an immovable, loses his privilege who permits the whole immovable to be sold in a foreclosure sale, without provoking a separate appraisement of the thing on which he claims a privilege. If then the inaction of Stauffer-Eshleman & Co. caused them to lose their privilege, if any they had, how can they claim that any subsequent conduct on the part of the American Bank & Trust Co., brought that privilege back into existence. The privilege, if any, once destroyed, remained destroyed. The transfer made by the American Bank & Trust Co., of the whole property on September 3, 1924, to the Pan-American Life Insurance Company could have no effect upon the status of third opponent’s claim and revive the privilege, if any, securing same which had been extinguished on December 1, 1923, when the foreclosure sale was made to the American Bank & Trust Co.

■ In discussing this case, no opinion is expressed as to whether third opponent’s privilege outranked the mortgages held by the plaintiff, the Pan-American Life Insurance Co. and the American Bank & Trust Co., for having been recorded over two years after its creation and’ long' after these mortgages were recorded. It is obviously not necessary to pass upon that question in deciding the present controversy.

For these reasons the judgment of the trial court, maintaining the third opposition of Stauffer-Eshleman & Co., should be reversed, the said opposition dismissed, and the funds held in the sheriff’s hands should be paid to plaintiff and it is so ordered.


text:
    No. -.
    First Circuit
    DOUCET v. WILFERT
    (January 28, 1926, Opinion and Decree)
    (March 1, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    It. Louisiana Digest — Obligations—Par. 157, 158.
    ft is not necessary to put one formally in I default who refuses to perform or who I acknowledges his inability to perform.
    2. Louisiana Digest — Obligations—Par. 177; Pleading — Par. 43. ■■
    One who when sued for damages for breach of contract to furnish water admits his failure to furnish' it, but pleads extenuating circumstances, thereby makes a confession that he has breached the contract.
    3. Louisiana Digest — Obligations — Par. 182; Damages — Par. 91, 92.
    The profits which one would have made on a crop of rice can be sufficiently determined to serve as a basis of judgment for damages against one who breached his contract by- failing to furnish water to grow the crop,
    4. Louisiana Digest — Appeal—Par. 759.
    Where the judgment fails to allow a credit which should have been allowed to the defendant it will be' amended.
    Appeal from the Parish of Acadia, Hon. W. W. Bailey, Judge.
    Action by C. Noah Doucet against Andrew Wilfert. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Gremillion and Smith, of Crowley, attorneys for plaintiff, appellee.
    P. S. Pugh, Medlenka and Bruner, of Crowley, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff entered into a contract with defendant whereby defendant obligated himself to furnish plaintiff a sufficient quantity of water to irrigate forty acres of rice, in consideration of one-quarter of the crop he might thereby raise and grow. Plaintiff alleges in his petition, that he properly prepared the land and planted it with good first-class seed rice and obtained a good stand. That owing to defendant’s failure to furnish him with water, • he only planted thirty acres on which he was barely able to raise and harvest twenty-three sacks of rice. That defendant failed and refused to furnish him water as he had agreed to do, under the pretext that it was too expensive and that plaintiff’s crop did not justify him in irrigating the same. Plaintiff then charges that through the failure and refusal of defendant to comply with the agreement, he had lost seven hundred and fifty dollars, for which amount he prays for • judgment.

Defendant excepted to plaintiff’s petition on the ground that the same did not allege that he had been put in default. The trial judge overruled that exception and we believe that his ruling was correct. Plaintiff does allege that defendant refused to furnish him water on the ground that to do so was too expensive and that plaintiff’s crop did not justify him in watering the same. This clearly evidences a demand on the part of plaintiff, upon defendant to comply with the agreement, for defendant could not have refused and given the alleged reason for his refusal, unless such demand had been made upon him. Putting in default is not a mere vain formality, but is intended by the Code, to offer an opportunity to the obligor to comply and to warn him that in case he fails to comply, he will be held liable in damages. Besides this is not necessary to put one formally in default, who refuses to perform or who acknowledges his inability to perform. Watson vs. Feibel, 139 La. 382, 71 South. 585, and authorities therein cited.

Plaintiff bases his claim for damages upon loss of profits which he estimates as follows: He estimates that but for defendant’s failure to furnish him water, he would have made an average of ten sacks of rice on the forty acres of land, or 400 sacks, that deducting therefrom one-fifth for rent, and one-quarter for water he would have made for his part 220 sacks instead of 23 sacks, and that his actual loss was then 197 sacks, which at $5.00 per sack would have brought him $985.00, that it would have cost him $225.00 to raise, harvest and save said crop and that he was therefore deprived of a profit of seven hundred and fifty dollars.

The trial judge after hearing the testimony and weighing all the evidence, came to the conclusion that defendant had violated the agreement. In fact the defendant admits his failure to furnish water as agreed, pleading in extenuation, trouble with his pumping outfit and lack of fuel, and pleading also. plaintiff’s negligence in maintaining his levees thereby allowing the water to escape and further pleading that plaintiff’s crop was in such condition that it did not pay defendant to pump water on same.

These pleas are tantamount to a confession, as they neither excuse nor justify de-~ fendant in his failure to perform.

The evidence in our opinion also justifies the trial judge’s finding that considering the lateness when plaintiff planted his crop, and its condition at the time it should have begun to receive water, that plaintiff would with sufficient irrigation have made seven sacks of rice to the acre. This estimate is made from the testimony of some of defendant’s witnesses and appears to us to be fair, and conservative. Taking then, this estimate as a basis the trial judge after deducting one-fourth for the furnisher of water and one-fifth for the landlord and the usual expense for threshing and sacking, gave judgment in favor of plaintiff for $418.50. These findings by the learned judge seem to us to be amply supported by the testimony in the record. The value of rice per sack, and the cost of harvesting and sacking are not seriously' disputed. But we believe that defendant should be allowed another deduction which seems to have been omitted from the judgment. ^Plaintiff did actually and admittedly received the proceeds of 23 sacks of the crop of rice upon the value of which he predicates his claim and the value of the 23 sacks at $5.00 per sack, viz: $115.00 should be deducted from the amount awarded to him in the judgment under review.

Another defense in this case, which properly should have been passed upon before discussing the merits, is to the effect that according to the decision of Boudreaux vs. Thibodaux, 149 La. 400, 89 South. 250, the plaintiff is not entitled to recover for the reason that the damages claimed by him, are too remote and uncertain to serve as a basis for judgment.

The cited case went to the Supreme Codrt on a writ of review’ from a decision by this court, and therein a petition demanding damages for loss of profits on crops of cotton and corn, was held not to show a cause of action. Boudreaux had obtained the lease of a tract of land, but he was enjoined by Thibodaux from taking possession. The litigation was prolonged and finally the injunction was set aside, too late however, for Boudreaux to take possession and engage in his proposed agricultural venture. Boudreaux had expected to grow cotton and corn on the land, but was deprived of the benefit of his lease by the injunction so that he was not able even to plant his prospective crops. He sued Thibodaux solely for the recovery of the anticipated profits which he expected to make if he had been able to plant, grow and harvest crops of cotton and corn and all three courts, the District Court, the Court of Appeal and the Supreme Court, held that prospective profits on crops which had not been planted, were too speculative, remote and uncertain to serve as a basis for a judgment.

In the present case, Doucet sued for profits on a crop of 40 acres and his demand entertained on a crop of 30 acres. Ten acres had not been planted by him and the doctrine of the Boudreaux case was properly applied by refusing his demand so far as these ten acres were concerned. Thirty acres were planted and grown by him and became almost a total loss. All surrounding lands during the same season, and under similar circumstances, produced fair crops and it is beyond doubt that plaintiff would have produced a fair crop had it not been for the failure of defendant to provide him with the irrigation which he had agreed to furnish. The expense of growing the crop and its value when grown, are also matters which are fixed with certainty. There is here no question of tort or wilful destruction of a crop. The damages claimed are ex contractu and the case is easily distinguishable from that of Boudreaux vs. Thibodaux, 149 La. 400, 89 South. 250.

Our appreciation of the proof in the case satisfies us that the trial judge’s findings are correct but we also believe that he should have credited plaintiff’s demand with the value of the 23 sacks of rice which he received from the crop, viz: One hundred and fifteen dollars.

For these reasons, the judgment appealed in this case is amended by reducing the same to three hundred and three 50-100 dollars and as thus amended, it is affirmed.


author: ELLIOTT, J. ELLIOTT, J.

text:
    Nos. 12,337 and 12,352
    First Circuit
    POLICE JURY OF ST. MARTIN PARISH v. KIDDER AND MRS. JOSEPHINE KIDDER v. POLICE JURY OF ST. MARTIN PARISH (Consolidated Case)
    (December 22, 1925, Opinion, and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Expropriation—Par. 58.
    Under Revised Statutes 3369 and 3370 governing the opening of public roads the law requires that the owner must have timely notice of the expropriation proceedings.
    2. Louisiana Digest — Expropriation—Par. 3,61.
    The Constitution Article I, Sections 2 and 6 guarantees against any procedure, such as illegal expropriation proceedings; the effect of which would be to deprive the owner of his property; without opportunity to be heard in behalf of his rights.
    3. Louisiana Digest — Expropriation—Par. 75; Appeal — Par. 44, 91.
    It is not necessary for a property owner to appeal from a null and void judgment of expropriation to the proceedings of which he was not given notice.
    4.Louisiana Digest — Injunction—Par. 18, 22.
    Under Code of Practice Article 604 et seq., Article 298, Par. 6 and Revised Statutes Section 3370 a writ of injunction will issue to protect and maintain lawful possession of property, but will not issue to take it away arbitrarily and vest it in another.
    Appeal from the Sixteenth Judicial District, Parish of St. Martin, Hon. James Simon, Judge.
    Action by Police Jury of St. Martin Parish against Mrs. Adolph Kidder et al., and Mrs. Josephine Kidder, widow of Adolph Kidder, et al., against Police Jury of St. Martin Parish. There was judgment maintaining injunction of the Police Jury and dismissing the injunction of Mrs. Kidder, et al. Mrs. Kidder appealed.
    Judgment reversed, injunction of Police Jury dismissed and injunction of Mrs. Kidder maintained to abide the merits of the cause. Case remanded for further proceedings as the law directs.
    E. Yuillemot, of New Iberia, attorney for Police Jury.
    Voorhies- and Labbe, of Lafayette, attorneys for Mrs. Kidder.
   ELLIOTT, J.

The Police Jury of the Parish of St. Martin, alleges that pursuant to a resolution' by them duly adopted, they appointed a jury of freeholders to lay out a public road in the Parish of St. Martin, from the town of Arnaudville to a place called Crapeauville in said parish. That the jury of freeholders qualified by taking oath, then traced and laid out the road, passing through a tract of land belonging to Mrs. Adolph. Kidder and that they allowed her $175.00 as damages to her property on account of the road. That the report of the jury of freeholders had been duly approved and adopted and Mrs. Kidder tendered the sum of $175.00 but that she refused to accept it. That Mrs. Kidder interferes with and prevents the police jury, its agents and employees, from entering on her land for the purpose of opening and constructing the road. That a peremptory writ of injunction is necessary and should issue to her to protect the police jury in the matter.

A rule nisi was issued to Mrs. Kidder and in response, she appeared and alleged that as the widow in community of Adolph Kidder deceased, she was the owner and possessor of an undivided half of the tract of land, through which the road was wanted, and the usufructuary of the other half and answered only to the extent of her interest. That her children, the heirs of Adolph Kidder, were the owners of the other half. She urged that the petition of the police jury admitted her possession as owner and that an injunction should not be issued for the purpose of dispossessing her. That the petition of the police jury did not show that notice had been served on her, enabling her to be present and be heard before the jury of freeholders, or the police jury in behalf of her rights in the matter and that as a matter of fact, none had been given her. That the expropriation proceedings, without hearing, or opportunity to be heard, would be taking her property without due process of law. That the proceedings were therefore null and void. That if the Sections 3369 and 3370 of the Revised Statutes of Louisiana, under which the police jury claimed to be proceeding, does not require notice to the owner before taking, then they are unconstitutional. She prayed that the injunction be refused.

As her answer to the rule .disclosed that she . had co-owners, the police jury by supplemental petition' made Cydalise Kidder, wife of Jeff Weed, Lucie Kidder, wife of Philias Thomas, Ella Kidder, wife of Antoine Frederick and Adolph, Leenie, Meance, Elby, Gerard and Selvina Marks, children of Alice Kidder, deceased, parties defendant and prayed that an injunction also issue to them.

They in turn appeared in response to a rule nisi and joined Mrs. Josephine Kidder in resisting the issuance of the injunction prayed for by the police jury; urging that the petition of the police jury disclosed no cause of action, that no notice had been given them, etc.; that the proceedings were null and void; that a writ of injunction should not issue for the purpose of dispossessing them, etc.

Before any action was taken on the rule issued in suit No. 12,337, Mrs. Josephine Kidder, widow of Adolph Kidder, and Cydalise, Lucie and Ella Kidder brought suit against the police jury, entitled Mrs. Josephine Kidder widow of Adolph Kidder et al., vs. Police Jury of St. Martin Parish, No. 12,352; attacking the proceedings of the police jury in suit No. 12,337 as being null and void, on the ground that the police jury had acted ex parte and without giving them any chance to appear before the jury of freeholders, or the police jury and urge their rights. They allege in their petition against the police jury that the jury of freeholders appointed to lay out the road, were not an impartial and disinterested jury and that the jury of freeholders was therefore illegally constituted,. etc.; that the police jury could not, by means of an injunction, oust them from their possession as owners; that a writ of injunction was necessary and should issue to the police jury, staying the expropriation proceedings and prohibiting the police Jury, its agents and employees, from entering on their land for the purpose of opening and constructing a public road thereon. That if Sections 3369 and 3370 of the Revised Statutes permitted their property to be taken without a hearing and giving them a chance to protect their rights, then they are unconstitutional and prayed for judgment accordingly.

The police jury in response to a rule nisi issued to them, urged as exceptions to the petition of Mrs. Kidder and her co-owners that the period of time provided for by the law for appealing from the decision of the jury of freeholders had eiapsed, without any appeal being taken; that their petition disclosed no cause nor right of action and urged the pendency of the suit No. 12,337, etc.

The minutes do not show how the district court ruled on the exceptions, but the exceptions were followed by an answer in which the police jury admitted that Mrs. Kidder and her co-owners had not been notified to appear before the jury of freeholders or the police jury with reference to the establishment of the road and alleged that none was necessary under the law. That the jury of freeholders did visit plaintiffs’ property at the residence of Mrs. Kidder and that neither Mrs. Kidder or any of the other plaintiffs were present at the time. That they waited at her residence for fully an hour and nobody appearing, they proceeded to trace and lay out the road through their land and value the damage done thereby. That more than one term of the district court had been since held, without appeal therefrom, etc.

The district judge, acting on the two petitions, granted the injunction prayed for by the police jury; refused that prayed for by Mrs. Kidder and her co-owners, and granted Mrs. Kidder and her co-owners a suspensive appeal from each order. Mrs. Kidder and her co-owners have appealed. The two petitions growing out of the same facts are blended together and will be considered at the same time; our opinion to apply to each.

OPINION

The Revised Statutes of Louisiana, Sections Nos. 3369 and 3370 are still in force and govern the opening of public roads; such as was attempted by the police jury in this instance. Maginnis vs. Police Jury of Terrebonne, 106 La. 293, 30 South. 846; Fuselier vs. Police Jury of Parish of Iberia, 109 La. 551, 33 South. 597; Delahoussaye vs. Board of Trustes of City of New Iberia, 158 La. 572, 104 South. 370. But these sections of the Revised Statutes contemplate notice to the owner and opportunity for him to appear before the jury of freeholders concerning the course of the road and the damage to be paid on account of the same, before the right of way can be taken for the road. And as the police jury has power under the law to revise, correct or change the recommendations of the jury of freeholders, as to the course of the road also as to the amount of damages which should be allowed on said account, the owner must have notice and opportunity to also appear before them at the time the report of the jury of freeholders is being considered and before acting thereon.

If notice was not contemplated, then the owner’s wishes in regard to the course of the road and his rights in regard to the damage done thereby would not be provided for, and no appeal would be granted from the decision of the jury of freeholders and the police jury to the courts, because if the law contemplated the laying out and establishment of the road and the compensation if any, to be arbitrarily fixed, there would be no use for an appeal to the courts.

That the law on the subject intends that the owner must have timely notice is further shown by the provision authorizing an injunction and stay of proceedings.

The Constitution, Art. I, Sections 2 and 6 guarantees against any proceedure; the effect of which, would be to deprive the owner of his property without opportunity to be heard in behalf of his rights. In re Ross, 38 La. Ann. 523; Hurry vs. Hurry, 144 La. 883.6 The admission of the police jury that no notice issued to Mrs. Kidder and her co-owners, enabling them to appear before the jury of freeholders, while the course of the road and the amount of damage to be paid on account of same was being considered, and that none was given them enabling them to appear before the police jury and be heard at the time the police jury was considering the recommendation of the jury of freeholders in regard to the road, strikes their expropriation proceedings with absolute nullity. *As the expropriation procedings were null and void, it was not necessary for Mrs. Kidder and her co-owners to appeal; they had the right at any time that effort was made to open the road to resort to an injunction and action of nullity as they have done in suit No. 12,337. Code of Practice, Art. 604 et seq., and Art. 298, No. 6 and Eevised Statutes Section 3370.

It is well established that a writ of injunction will issue in such a case to protect and maintain lawful possession and will not issue to take it away arbitrarily and vest it in another. Knox vs. Police Jury of East Baton Rouge, 27 La. Ann. 204; State of Louisiana ex rel. Singer vs. Judge 19th Judicial District Court, 33 La. Ann. 133; Torres vs. Falgoust, 33 La. Ann. 560; New Orleans & N. E. R. Company vs. Mississippi T. A. B. & L. R. Company, 36 La. Ann. 561; Puckett vs Hicks, 39 La. Ann. 901, 2 South. 801; State vs. Judge of Civil District Court of New Orleans, 41 La. Ann. 951, 6 South. 721; State vs. Sommerville, 104 La. 74, 28 South. 977; Vicksburg, S. & P. Ry. Co. vs. Webster Sand, Gravel & Const. Company, 132 La. 1051, 62 South. 140; Pure Oil Operating Company vs. Gulf Refining Company, 143 La. 284, 78 South. 560.

The district judge therefore erred in authorizing the injunction to Mrs. Kidder and her co-owners and in refusing to authorize the one prayed for to the police jury.

For these reasons the order authorizing the injunction in suit No. 12,337 entitled Police Jury of St. Martin Parish vs. Mrs. Adolph Kidder et al., will be reversed and set aside, the order annulled and the 'suit dismissed at the cost of the police jury.

In the suit No. 12,352 entitled Mrs. Josephine Kidder widow of Adolph Kidder, et al., vs. Police Jury of St. Martin Parish, the order refusing the injunction is reversed and set aside and it is ordered that the injunction prayed for be issued to abide the merits of the cause. That this ease be remanded to the lower court for further proceedings in conformity with these views and as the law directs; that the cost of the appeal be paid by the police jury.

ELLIOTT, J.

In this case, for the reasons filed in suit No. 12,352 entitled Josephine Kidder, widow of Adolph Kidder, et al., vs. Police Jury of the Parish of St. Martin this day decided; it is ordered, adjudged and decreed : that the order appealed from ■ in this case, authorizing the issuance of an- injunction to Mrs. Josephine Kidder, Lucie Kidder, Ella Kidder, Adolph, Leonie, Meance, Elvy, Gerard Marks, be and the same is hereby annulled, avoided and reversed, and the suit dismissed..

The plaintiff and appellee to pay the cost in both courts.


author: ELLIOTT, J. ELLIOTT, J. ELLIOTT, J.

text:
    Nos. 23,400 and 23,401 and 23,402
    First Circuit
    COOK v. CITY OF OPELOUSAS and FENELON v. CITY OF OPELOUSAS and LEWIS v. CITY OF OPELOUSAS (Consolidated Cases)
    (December 22, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Dedication to .Public Use — Par. 1, 9, 10.
    No particular form of ceremony is necessary for the dedication of a street to public use. The dedication must be accepted, but it need not be by public act. If the street is used by the public as a street, the acceptance is coniplete, dating from the time such use commenced.
    2. Louisiana Digest — Dedication to Public Use — Par. 10, 14.
    Where a street has been accepted by public use as a street for the greater part of its length from time immemorial, this applies to the whole street, like corporeal possession of a tract of land, under title calling for an entire tract.
    3. Louisiana Digest — Petitory and Possessory Actions — Par. 48, 49.
    If a street is public, no individual by fencing and enclosing it can be regarded as having that possession requisite for a possessory action. See Civil Code, Article 454, 458 and 482.
    4. Louisiana Digest — Damages—Par. 13.
    One who after being notified to take, his fences off the street, plants vegetables thereon, has no right to damages because the city removed the fences and exposed the vegetables to destruction „ by traffic.
    Appeal from the Thirteenth Judicial District Court, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    Action by Mrs. Marie Cook, wife of Felix Taylor ^gainst City of Opelousas, and Frank Fenelon against City of Opelousas et al., and Cornelius Lewis against City of Opelousas. All cases consolidated. There was judgment for plaintiffs in all cases and defendants appealed.
    Judgments reversed.
    R. L. Garland and D. L. Guilbeau, of Opelousas, attorneys for plaintiff, appellee.

      P. R. Sandoz, of Opelousas, attorney for defendants, appellants.
   ELLIOTT, J.

These . cases depend on the same law and facts. We will therefore consider them together; our opinion to apply to each.

Mrs. Marie Cook, wife of Pelix Taylor, Prank Penelon and Cornelius Lewis, each claim possession as owner of the lot or parcel of ground, described in their petition; situated in the City of Opelousas.

They allege that the City of Opelousas has, within the year, entered on their respective properties and evicted them therefrom. They each brought a possessory action against the city, praying to be restored to and maintained in their possession, and to recover the damages sustained by the removal of their fences and the loss of vegetables, etc.

Their petition describes their respective lots or parcels of ground, by reference to streets and adjoining properties; and in the titles, their property is described, as a rule, in the same way. In some instances their title states the number of their lot.

The title of Mrs. Cook, wife of Pelix Taylor, describes her lot by its number; and in Prank Penelon’s chain of title his lot is some times described by number and by reference to the plan of Moore’s Addition to the City of Opelousas.

The city, in answering the petition of Marie Cook, wife of Pelix Taylor, admits per ownership and possession of a lot, as Mated in her petition, and alleges that it Is, in fact, lot No. 27 on the plan of Moore’s Addition to the town of Opelousas. Further alleges that her lot had been bought by said number and with reference to said plan. The disturbance and eviction alleged by her is denied; and the allegation made, that the western boundary of her lot has been arbitrarily and unlawfully extended for a distance of 35 feet into Cane street, obstructing said street.

In answer to the petition of Prank Penelon, the city admits his ownership and possession of a lot or parcel of ground, as stated in his petition; but alleges that his lot is not correctly described in his petition or title; that his parcel of ground is, in fact, lot No. 25, on the plan of Moore’s Addition to the town of Opelousas that his lot had been originally bought with reference to said plan. The disturbance and eviction alleged by him is denied; and the allegation made that the boundary of his lot had been arbitrarily and unlawfully extended for a distance of 20 feet into Cane street, obstructing said street.

In answer to the suit of Cornelius Lewis, the city admits his ownership and possession of a lot of ground, as stated in his petition, but alleged that his lot is not cor' rectly described in his petition or titles; that his property is, in fact, the eastern portion of lots Nos. 13 and 18 on the plan of Moore’s Addition to the town of Opelousas; that his lots had been originally bought with reference to said plan. The disturbance and eviction alleged by him is denied; and the allegation made that the eastern boundary of lot No. 18 has been arbitrarily and unlawfully extended for a distance of 20 feet into Cane street, obstructing same.

The city, in its answer to the suit of Marie Cook, wife of Pelix Tayior, and to that of Penelon and Lewis, alleges that they do not and have never had possession of Cane street. That the city had, by ordinance, decided to open said street, and had notified each of the plaintiffs to take off their fences enclosing the street; but that each of them had refused to do so, and planted vegetables, etc. That the city removed their obstructing fences and opened the street. That it had the right to open the street. That Cane street was a public street, dedicated to the town of Opelousas and the public, as a town street, by William Moore in an act of sale to Baptiste Brunet, dated June 10, 1822, and had been duly accepted as such by public use.

That the plaintiffs had each committed themselves to the street, by purchasing their respective properties with reference thereto; and were each estopped to deny the existence of the street. That plaintiffs having disregarded the notices to take their fences off the street, could not recover damages resulting from the removal of their fences, etc.

The district judge rendered judgment in favor of the plaintiffs as prayed for in their petition, and condemned the city to pay $150.00 damages in each case.

The city appealed.

OPINION

The record shows that on June 10, 1822, William Moore sold and delivered to Baptiste Brunet “the six lots Nos. 25, 26, 27, 28, 29 and 30, forming one body, between four streets, designated on a plan deposited in the office of the present notary, etc. And it is well understood that the vendor is only obligated to donate the said streets dividing and surrounding the said lots, according to the plan noted above”, etc.

This title has been on record for more than one hundred years.

The original plan of Moore’s Addition to the town of Opelousas, referred to in this act, has been lost and no certified copy is extant; but the fact that Moore’s Addition to the town of Opelousas was sold out by lots duly numbered, and with reference to streets bearing names and in conformity with this plan, is as certain, as it is, that there was an addition to the town, of that name.

The plan is referred to in so many old titles in the record, that its existence at that time can not be doubted. Lost 'ancient public documents of that kind, can be reconstructed from the conveyance records, by skillful abstractors.

Roy D. Edwards is shown to have mfide a careful abstract of the conveyance records of the Parish of St. Landry, for the purpose of identifying the property of the plaintiffs on said plan; and also the location of same with reference to Cane street. He established by his evidence the identity of the property of Marie Cook, wife of Felix Taylor, as lot No. 27; and that of Frank Fenelon, as lot No. 25; and that of Cornelius Lewis, as lot No. 18; and on said plan, the names of the four streets, whereby they were surrounded, and one of these streets is Cane street.

The lot claimed by Marie Cook, wife of | Felix Taylor, is identified with the plan, by her chain of title offered in evidence on the trial.

The testimony of Mr. Edwards is not I questioned by any witness, and is sup-1 ported by the titles in the record.

The plaintiffs refer to' a map made by L. E. Littell, as a map of the City of I Opelousas. Mr. Littell does not testify I concerning this map as found by the lower! court. He very carefully states in his evidence, that the may made by him does not show the unopened streets.

The evidence shows that there are unopened streets in the City of Opelousas. As the Littell map, according to Mr. Lit-tell, does not indicate streets that had not been opened at the time it was made, and, as Cane street had not been opened at the time it was made, from Laurent street to Madison street, it has no bearing, except that it shows Cane street as a public street of the city. It does not show lots Nos. 18, 25 and 27, but titles in the record and the testimony of Mr. Edwards shows that Cane street bounds lot 18 on the east; and lots Nos. 25 and 27 on the west; and that Cane street has the same length as Oak and Academy streets, and terminates at Madison street.

The evidence shows that the lot belonging to plaintiff Lewis forms the corner of Laurent and Cane streets. That lot No. 25, belonging to plaintiff Fenelon, forms the other corner of Laurent and Cane streets; and the lot No. 27, belonging to plaintiff, Mrs. Taylor, forms the corner of Cane and Madison streets. Cane street is bound to be one of the streets referred to in the title from Moore to Brunet; and it has been open and in public use as a town street, for the greater part of its length, as long as any of the other streets in Moore’s Addition to the town of Opelousas; but not between South and Madison streets.

The district judge, in his written opinion, speaking of this says:

“There is no evidence showing clearly that this street was ever dedicated at this point. On the contrary, the old sale by William Moore to Baptiste Brunet, shows that he sold lots of certain dimensions, and he gave to the purchaser, Brunet, the right to place streets at his will. This was not a dedication of Cane street, at that point. It has never been opened, never been used by the city, never been recognized as a street, and under these circumstances, the city had no right to take forcible possession of the plaintiffs’ property.”

It is shown by titles in the record, subsequent to the one from Moore to Brunet, that the Fenelon and Lewis lots have been generally sold by reference to contiguous properties, and without mentioning any streets; and that Cane street, between South and Madison streets, has been inclosed so long that nobody could remember when it was open at that place; but that fact does not destroy Cane street, from South to Madison street.

It is not claimed by plaintiffs that Cane street has been abandoned by ordinance of the City of Opelousas, between South and Madison streets. Their claim is that this part of Cane street was never dedicated to the public, and used as a public street.

The title from Moore to Brunet is a sufficient dedication of Cane street from Laurent to Madison street; which is that part of it, which the district judge holds has never been dedicated, used, opened or recognized as a street.

The title from Moore to Brunet, called for and has reference to four streets as a • boundary of lots 25 and 27 from Laurent to Madison streets; and the location of lots Nos. 25 and 27 clearly shows that one of these streets can be none other than Cane street.

As for the manner and form of the dedication it is well settled.

“That no particular form or ceremony is necessary for the dedication of a street to public use. The dedication must be accepted, but it need not be by public act. If the street is used by the public as a street, the acceptance is complete, dating from the time such use commenced.”

Municipality No. 2 vs. Orleans Cotton Press, 18 La. 122; City Council of Lafayette vs. Holland, 18 La. 286; Carrollton Railroad Co. vs. Municipality No. 2, 19 La. 62; Ross vs. Garlick, 10 Rob. 365; City of Lafayette vs. Preston, 3 La. Ann. 382; Municipality No. 3 vs. The Levee Steam Cotton Press Company, 7 La. Ann. 270; Sarpy vs. Municipality No. 2, 9 La. Ann. 597; Burthe vs. Fortier, 15 La. Ann. 9; Cane vs. Hart, 18 La. Ann. 560; Wainwright vs. Bridges, 19 La. Ann. 244; City of Baton Rouge vs. Bird, 21 La. Ann. 244; McNeil vs. Hicks and Howell, 34 La. Ann. 1090; Land vs. Smith, 44 La. Ann. 931, 11 South. 577; State vs. Burton, 105 La. 516, 29 South. 970; Flournoy (City of Monroe) vs. Breard, 116 La. 224, 40 South. 684; Handlin vs. City of New Orleans, 121 La. 565, 46 South. 652; to which we add City of Shreveport vs. Walpole, 22 La. Ann. 526; Sheen vs. Stothart, 29 La. 630; Iseringhausen vs. Larcade, 147 La. 515, 85 South. 224, cited by defendant.

The evidence shows that Cane street has been accepted by public use as a street for the greater part of its length from time immemorial. Its open public use for the greater part of its length, like a corporeal possession of a part of a tract of land, under title calling for an entire tract; c<?nstitutes acceptance for its entire length as indicated on the plan by which it was created. Therefore no part of Cane street, has been at any time susceptible of private ownership and plaintiffs and their authors, no matter if they have had it fenced and enclosed, can not be regarded as having that possession of it, requisite for a possessory action, Civil Code, Arts. 454, 458 and 482. Daublin vs. Mayor of New Orleans, 1 Mart. (O. S.) 185; City of Baton Rouge vs. Bird, 21 La. Ann 244; City of Shreveport vs. Walpole, 22 La. Ann. 526; Sheen vs. Stothart, 29 La. Ann. 630; Lafitte vs. City of New Orleans, 52 La. Ann. 2099, 28 South. 327.

They were notified to take their fences off the street, but they instead kept it under fence and planted vegetables; knowing that the city proposed to open the street. Therefore they have no right to any damage because the city in removing their fences to the extent that same obstructed the street, éxposed to loss the vegetables they had planted, after getting the notice.

The judgment of the district court in each case is therefore erroneous and must be reversed and judgment in favor of the city as prayed for in its answer.

For these reasons the judgment appealed from in the case entitled Mrs. Marie Cook wife of Felix Taylor vs. City of Opelousas et al., No. 23,400 on the docket of the district court is annulled, avoided and set aside. The damages claimed by plaintiff Marie Cook, wife of Felix Taylor, is refused and rejected. It is further adjudged and decreed, that Cane street is a public street of the City of Opelousas, its entire length as indicated on the plan of Moore’s! Addition to the town of Opelousas and from I North street to Madison street. That the I City of Opelousas had the right to remove I plaintiff’s fence from said street and open! the street to its proper width as provided! on said plan. That the plaintiff and ap-l pellee pay the cost in both courts. I

ELLIOTT, J.

In this case for the reasons stated in the suit No. 23,400 this day decided, the judgment appealed from herein is annulled, avoided and set aside! and the demand of the plaintiff Cornelius Lewis is refused and rejected.

It is further adjudged and decreed that Cane street is a public street its entire length and as indicated on the plan of Moore’s Addition to the town of Opelousas. It is further decreed that the City of Opelousas had the right to remove plaintiff’s fence from said street and open the street to its proper width as provided on said plan.

That plaintiff and appellee pay the cost in both courts.

ELLIOTT, J.

In this case for the reasons stated in the suit No. 23,400 this day decided, the judgment appealed from herein is annulled, avoided and set aside and the demand of the plaintiff, Frank Fenelon, is refused and rejected.

It is further adjudged and decreed that Cane street is a public street its entire length and as indicated on the plan of Moore’s Addition to the town of Opelousas. It is further decreed that the City of Opelousas had the right to remove plaintiff’s fence from said street and open the street to its proper width as provided by said plan.

That plaintiff and appellee pay the cost in both courts.


author: ODOM, J.

text:
    No. 2660
    Second Circuit
    SHUMAKE v. GREMILLION
    (June 2, 1926, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Brokers—Par. 17.
    A real estate agent is not entitled to a commission if the owner did not give him the exclusive right of sale, but merely listed it with him and other agents and the sale of the property was effected through the efforts of another agent, although he spoke to the purchaser in regard to the sale.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Edward M. Shumake against L. Blum Gremillion. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellant.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

The defendant, L. Blum Gremillion, owned certain property in the city of Alexandria located at the corner of Sixth and Desoto streets which he desired to sell and to that end he listed it with the plaintiff, Shumake, who was a real estate broker. The price fixed on the property by the owner was $9,000.00, and he agreed with the plaintiff that if he would find a purchaser for the property at that price he would allow him a commission of 5% for making the sale, with the understanding, however, that if the plaintiff procured an offer for the property at a less price he should submit whatever offer he got back to the defendant for his consideration.

Gremillion, the defendant, later on sold the property in question to Mrs. Maddox for the price of $8,500.00 through another ■real estate broker by the name of Chambers. The plaintiff now claims that Mrs. Maddox was his client and that she having purchased the property and the same having been listed with him he is entitled to the 5% commission, and he brings this suit to recover the sum of $425.00.

It is plaintiff’s contention that he found the purchaser and brought her and the owner of the property together and that it was through his efforts and instrumentality that the sale was made and that he is therefore entitled to his commission under the law and the prevailing custom in such matters, and he, quotes the case of Huger vs. Ransom, 134 La. 696, 64 South. 682, as authority and urges that that case is parallel to the one at bar.

In that case it was held that a broker is entitled to his commission where he shows that he was the procuring cause of the sale under a contract with the owner. There can be no question that where property is listed with a real estate broker and he finds a purchaser for it and brings the purchaser and seller together at an .agreed price the broker is entitled to his commission; but as a matter of fact the plaintiff in this case did not find the purchaser for the property and bring her and the seller together, so that under the facts of the case the plaintiff is not entitled to recover.

In the latter part of the year 1924, Mrs. Maddox, who owned some property situated in a rural section near Alexandria, listed it with plaintiff for sale. At the same time the defendant, Gremillion, had listed his property with the plaintiff and it seems that the plaintiff attempted to negotiate a trade between Mrs. Maddox and the defendant, but these negotiations failed and subsequently plaintiff procured a purchaser for the property of Mrs. Maddox.

After Mrs. Maddox sold her country property, it seems that she desired to purchase property in .the city of Alexandria and her husband, Robert G. Maddox, acting as her agent, went to see plaintiff and made some inquiry with reference to the property which the defendant owned. This was some sixty days, according to the testimony of Gremillion, after the negotiations between him and Mrs. Maddox had been broken off. After the sale of Mrs. Maddox’s country property the plaintiff said nothing further to the defendant with reference to the sale of defendant’s property. However, when Robert G. Maddox approached the plaintiff with reference to purchasing the city property which Gremillion then owned the plaintiff told Maddox that the property could be purchased for the sum of $10,000.00. At that time it was not known by either plaintiff or Maddox what Gremillion had paid for the property, and plaintiff suggested that they would find out, and it being understood that the recorder’s office ' closed at 12 o’clock on Saturday and for that reason they could not get the information from the records, the plaintiff suggested to Maddox that he see Mr. Chambers who had negotiated the trade for Gremillion when he bought the property. Maddox at once went to Chambers and asked him what Gremillion had paid for the property and was told by Chambers that he, Chambers, thought that the property could be purchased for $8,500.00, whereupon Maddox told Chambers that if he could buy the property at that price and on terms which he could meet he would probably purchase it. Thereupon Chambers went to Gremil-I lion and told him that he had a purchaser! who would probably take the property atl $8,500.00 provided the terms could be made! satisfactory. Chambers did not at that! time tell Gremillion who the prospective! purchaser was. I

Gremillion agreed to 1 accept the price! offered and authorized Chambers to close! the deal, whereupon Chambers informed! Gremillion that Maddox was the prospecl tive purchaser. I

Subsequently Chambers and Gremillion went to the residence of Maddox in the city of Alexandria where the deal for the sale of the property was closed.

The plaintiff admits that he made a price of $10,000.00 to Maddox, but says that he suggested to Maddox that the property might be obtained at a less price, and he admits that he did not advise Gremillion, the defendant, that he had a prospective purchaser for his property. When he found that Maddox was in the market for the property all that he did was to suggest to Maddox that he find out from Chambers what Gremillion had paid for the property. That was the last meeting between plaintiff and Maddox prior to the sale.

Gremillion, the defendant, had listed the property for sale not only with the plaintiff but with three other real estate brokers in the city of Alexandria, the terms given to each being the same. The plaintiff did not have an exclusive right of sale. The property having been listed with Chambers for sale, he began negotiations with Gremillion as soon as he found that Maddox was in the market for the property, and according to the testimony the sale was effected through the efforts of Chambers and not through those of the plaintiff. Under these conditions the plaintiff is not entitled to a. commission. These were the conclusions of the district judge who rejected plaintiff’s demand and dismissed his suit.

Finding no error in the judgment appealed from, it is accordingly affirmed.