author: Waticins, J.

text:
    No. 10,857.
    E. G. Schleider vs. P. W. Dielman et al.
    1. An option is notan existing and complete agreement which contains a condition, but it is the supplement of an agreement, to theperformancc of which the assent of another is of the essence.
    2. It is a mere pollicitation, not yet ripened into aperfeet commutative contract. It belongs to that class of conditional covenants which obliges the party in whose favor.such a stipulation is made to give notice to the one granting it of his intention to exercise it, before it becomes obligatory on the other.
    3. A private corporation is a person in law quite as responsible for its contracts as natural persons are.
    Notwithstanding such corporations possess the inherentpower of dissolution at will, that right does not carry with it the authority of impairing the obligation of their contracts; but the liquidation, whilst it deprives the creditor of the power to compel specific performance, leaves his equitable remedy for the recovery of damages unimpaired.

      L As a general rule tho future profits of acontract can not be included in the injury suffered by its broach; mainly for the reason that they depend upon so many and various contingencies that it is impossible for a court or a jury to arrive at any definite determination of the. actual loss by any trustworthy method. They are open to the objection of remoteness, as well as of uncertainty.
    5. When the breach of a contract consists in preventing its performance without the fault of the other party, who is willing to perform it, the damages which the latter can recover will corisist of (1) what he has already expended toward performance, and (2) the profits which hewouldhave realized by performance. Profits can not always be recovered. They may be too remote and speculative in their character, and, therefore, incapable of that clear and definite proof which the law requires. When not fully proven, or they are too remote, the true measure is the Joss of outlay and expense.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      White, Parlange & Saunders and B. H. MeCaléb for Plaintiff and Appellee,
    cited: 20 An. 327; 2 La. 161; 10 N. Y. 489; 15 Pick. 351; Marcadé, Yol. VI, p. 176; 15 How. 304.

      Thos. J. Semmes and Buck, Dinkelspiel & Hart for Defendants and Appellants:
    1. The price of a sale must be fixed by the parties. There is no sale where the fixing of the price is left to one of the parties; or where it is left to a third person, who either will not, or can not, fix the price. C. C. 2034, 1764, 2439, 2464,2465; Troplong, vente No. 151, 156, 157; Laurent, Vol. 24, Nos. 73-6; Marcadé, Vol. 6, p. 179; Aubry & Rau,4Vol., p. 338, No. 349; Mourlon, Vol. 3, No. 490; Duranton, Vol. 1G, Nos. 105-117; Pothier, vente No. 29; C. Accarias, Précis de Droit Romain, Vol. 2, p. 453, No.604; Fort vs. Union Bank, 11 An. 708; 14 Ves., Jr., 405; 4 Drewry, 140; 26 Beavan, 426; 4 Pick. 189; 2 Sumner, 539.
    2. The sale to the association of business and good will transferred to it the right to use the name of the Louisiana Company. 10 Ch., Div. 437 ; 43 Oh., Div. 220; 14 Id. 598; 45 Id. 577; 113 Mass. 175; 36 Fed. R. 724.
    3. Plaintiff sitting as proxy at a board of directors is as much bound as if he were not clothed with such proxy, but sat on his own account. 35 An. 744; 2 An. 211.
    4. A party to a contract must endeavor to minimize his loss; failure of this duty will diminish his claim for damages to the extent to which he could have avoided the loss. 6 Wall. 99; 115 U. S. 229.
    .5, If a party assigns at the time a reason for his conduct, he can not afterward change his mind and assign a different reason. Railway Co. vs. McCarty, 96 U. S.267.
    6.Damages for loss of profits in a sub-sale can not be recovered unless'the existence of the contract for resale was at the time of making the original contract communicated to the vendor. Thol vs. Henderson, 8 Q. B., Div. 458.
   The opinion of the court was delivered by

Waticins, J.

This is an action for the recovery of purely prospective damages, alleged to have resulted from the loss of anticipated profits occasioned by the defendants’ non-fulfilment of its contract, whereby its full term was abbreviated by the period of six years and more.

Judgment is claimed against defendants, as liquidators of the Louisiana Brewing Company, for the sum of $97,209.18, on that score, alleging its dissolution and liquidation, and claiming the right to have that sum paid from the assets in their hands.

The plaintiff prayed for and obtained an injunction, restraining the defendants, and the New Orleans Brewing Association — a new corporation into which the Louisiana Brewing Company and other brewing companies had been consolidated — from disposing of said assets, and from surrendering them to the stockholders of the dissolved corporation, especially the stock and bonds which said liquidators had received from the Louisiana Brewing Association.

Stated in more precise terms, the claim of plaintiff is, that he had a contract with the Louisiana Brewing Company, whereby the latter agreed to furnish him with all the beer he required for bottling purposes, and to furnish bottling beer to no one else, for and during a term of five years, consenting that he should have the option to continue the contract in force for an additional period of live years. That, prior to the expiration of the term of five years, the corporation was, by a vote of its stockholders, voluntarily dissolved and its affairs placed in the hands of the defendants as liquidators, leaving said contract in force.

There is no fraud, tort or wrong charged in the act of dissolution,, or any attempt to thereby avoid or evade the force and effect of their engagement; but the plaintiff’s averment is that the obligation of the contract remained unbroken, notwithstanding the dissolution of the corporation.

The judge a quo perpetuated plaintiff’s injunction and gave him judgment for the sum of $43,482.88, allowing as the value of the bottling plant $10,378.16, and as the amount of future profits $33,-104.22.

It is from that judgment that the defendants have appealed.

Originally, the Louisiana Brewing Company was engaged in the' manufacture and sale of beer in the city of New Orleans, and in connection therewith it operated a bottling department for bottling beer, likewise for sale, the two plants being conducted co-operatively.

As bottled beer was principally marketed in localities distantly Temoved from the place of its manufacture, its introduction inte new business communities necessitated the employment of traveling salesmen, and at heavy outlay and expense, to maintain its established trade relations. On this account, mainly, the brewing company disposed of its bottling plant and leased the buildings wherein it was located and was in full operation as “a going concern.”

By this means the beer manufactory and the bottling department became separated, and each one passed under a separate administration.

Contemporaneously with the sale of the bottling plant to Daniels & Schleider — the predecessors of the plaintiff, whose rights he acquired — on the 1st of July, 1886, the contract sought to be enforced was executed.

The principal stipulations of their agreement may be thus summarized, viz.:

1. The Louisiana Brewing Company contracted to sell Daniels & Schleider the beer of its manufacture, and to no other persons or bottling establishment for bottling purposes, and to continue to thus furnish them beer for a period of five years.

2. Daniels & Schleider agreed to purchase all the beer they required from said brewing company, and to tafee and use no other beer than that of its manufacture, and to continue their purchases for a period of five years.

The present controversy involves an interpretation of the contract of the brewing company to sell plaintiff beer, and the solitary issue tendered is the quantum of damages plaintiff is entitled to recover upon the score of his loss of the anticipated profits of his bottling establishment, because of the brewing company’s failure to carry its contract to its ultimate completion.

At date suit was instituted, there remained a little more than one year of the first period of five years unexpired; and there was, likewise, more than one year to elapse between date of suit and commencement of the further period of five years during which plaintiff had the option to keep the contract in force.

This action is for the recovery of damages ex contractu, resulting from the brewing company’s simple inexecution of its contract to supply the plaintiff with bottling beer, which was occasioned by the purely lawful act of liquidating the corporation.

The plaintiff’s counsel treat the contract as though the two five-year periods were instalments thereof, employing this expression, viz.:

His existing contract had more than one year to run, and he had the privilege of renewing for a period of five years more. This privilege was an integral part of his contract and the company was as much bound by it, and bound to respect it, as it was bound by any other provision in the contract.” Brief, p. 18.

On this theory counsel have formulated their demands, and the judge a quo accepted that theory and acted upon it in rendering judgment, taking as the initial point of his computation the sum of $5517.37, as the annual net profits of the bottling business, and multiplying that sum by six, thus giving to plaintiff an allowance of $33,104.22 on this score.

In our opinion the learned judge of the district court misapprehended the true import of the plaintiff’s option, and, so’doing, incorrectly held it to be an integral part of the absolute contract — his judgment resting upon the incorrect hypothesis that the plaintiff had “ exercised his privilege,” and continued the contract in force for an additional period of five years, whereas he had not, in point of fact, so elected to continue the contract in force, by giving due notice to the brewing company before its liquidation.

An option is not an actual, existing contract, but merely a right reserved in a subsisting agreement, to the obligee, to continue it in force for an additional term; but its preservation depends upon the obligee’s exercise of the faculty of renewal, and seasonable notice given to the obligor of his intention to exercise the same. Massy vs. Mead, 2 La. 157; Lieutrand vs. Jeuneaud, 20 An. 327.

In a certain sense an option is a mere pollicitation, a promise without mutuality, not yet ripened into a perfect agreement containing mutual stipulations, which either may enforce, and from which neither is at liberty to recede. It is an open proposition by one party to a contract, which must be accepted in precise terms by the other, in order that it may be binding upon both parties.

Without attempting any collation of authorities on this question, we make a single extract from a standard text writer on the subject, as aptly expressing our views upon the subject, viz.:

“ It may be,” says the author in treating of the conditions on which a sale of goods depends, “ the happening of some event, and then the question arises as to the duty of the obligee to give notice that the event has happened.

“As a general rule, a man who binds himself to do anything upon the happening of a particular event is bound to take notice, at his own peril, and to comply with his promise when the event happens. But there are cases in which, from the very nature of the transaction, the party bound on a contract of this sort is entitled to notice from the other, of the happening of the event on which the liability depends.”

The author then furnishes this illustration, to-wit:

“ But no notice is required where the particular person whose action is made a condition of the bargain is named, * * * and no option to be exercised by the vendor. And it seems that this is the true test, viz., that if the obligee has reserved any option to himself by which he can control the event on which the duty of the obligor depends, then he must give notice of his own act before he can call upon the obligor to comply with his engagement.”

Benjamin on Sales, pp. 561, 562, See. 577; see also Watson vs. Walker, 23 N. H. 471; De Mill vs. Hartford Insurance Company, 4 Allen, 341; Lent vs. Paddleford, 10 Mass. 230; Tasker vs. Bartlett, 5 Cush. 359.

In Huir & Loomis Ice Company vs. Heinze, 14 Southwestern Reporter, 756, the Missouri court said: The option given by the company was never exercised, hence that clause of the proposition never became applicable.”

Accepting this interpretation of an option in a contract, and applying thereto the evidence supplied by the record, and we have no hesitancy in reaching the conclusion that plaintiff never exercised his right, or gave any notice of his intention to exercise it.

While it is true that the plaintiff, in all of his relations of contractor with the brewing company, occupied the position of a third person, yet the fact is quite undeniable that he was both a director and stockholder of the corporation at the same time; and, that whilst negotiations were in progress, looking to a liquidation, the plaintiff actively participated therein, and gave them countenance and support; and they resulted in its virtual assignment to the New Orleans Brewing Association.

These negotiations occasioned several meetings of the stockholders, many of which were attended by the plaintiff; though it is contended by counsel that he did not participate therein, and they state in their brief, to-wit:

“ Schleider favored all the negotiations to sell to the English syndicate, but when the question of consolidation came up, although he was one of the largest stockholders in the Louisiana Brewing Company and attended the meeting at which the proposition to dissolve was voted upon, he refrained from voting, because he was apprehensive that the dissolution might affect his contract rights.” He was present “ at the meeting at which the dissolution was determined upon, * * ■ and did not vote. * * Some one remarked that the voting was about to close, and asked Schleider if he did not wish to vote. There is some discrepancy in the evidence, as to the reply that Schleider made. Schleider says positively that in declining to vote for the liquidation, he gave as his reason that by doing so he might imperil his rights as a contractor.” Brief, p. 7.

As a witness plaintiff states that he had been advised by counsel not to vote in the stockholders’ meeting; and that he was present at that meeting and publicly stated the reasons why he could not consent to vote for the liquidation nor sign any document to that effect.

It is in proof that the plaintiff made similar statements just before and just after the meeting to several of the stockholders.

But considering all the evidence on this question, and it is quite apparent that plaintiff acted and voted in such manner as to tacitly permit, so far as he was concerned, the liquidation to take place, and thus realize a share of the large profits of the adventure, and at the same time to protect his contract rights from impairment.

This is evident from his general course of conduct, after having taken the advice of a lawyer as to the nature and extent of his rights, and the best method of protecting them.

Openly and publicly plaintiff made no protest. He assigned to hisp associate stockholders no ground for his refusal to act. But just as soon as the dissolution of the corporation became an accomplished fact, he promptly instituted this suit against the liquidators appointed to adjust its affairs, and, by injunction, arrested in their hands, the entire avails of its liquidation, and from which he claims the right to receive a little less than one hundred thousand dollars, as damages resulting to his bottling business, because of the dissolution —in the meanwhile making no disavowal of his intention to accept his share of the immense profits realized by the liquidation.

Without commenting on plaintiff’s course of dealing with his associates, or making any application of them to the actual contract, in respect to its unexpired term, we may, with becoming propriety, state, and emphasize the statement, that there is not one scintilla of testimony which even tends to show that he ever asserted any intention to exercise his option; nor that he did any act, or uttered any word, that would, by any fair and reasonable interpretation, indicate such purpose on his part. And we are well satisfied that if he entertained such ah idea it was only a thought he harbored in his own mind, but never communicated to the stockholders or directors of the corporation, and who, in the absence of any such notification, had a perfect right to assume that he had abandoned it, and act accordingiy.

Inasmuch as the exercise of the option was exclusively under the plaintiff’s control, and.as he was not only aware of the proposed liquidation but was present and participated in all the proceedings that led up to the liquidation, though he declined to sign the final act — a clear and indisputable obligation was imposed on him, to have given notice to the stockholders’ meeting of his intention to exercise his option, and failing to do so he must be conclusively presumed to have abandoned such right.

This being our conclusion the option of the plaintiff to continue the contract in force for a new and additional term is eliminated from the controversy.

In respect to the immediate effects of the liquidation of the corporation on the plaintiff’s contract rights, there can be but little difficulty, as it can not be doubted that the liquidation of a corporation has the immediate effect of terminating all of its purely personal obligations and of relegating the beneficiaries thereunder to an action in damages in keeping with its covenants.

A corporation is quite as much bound as a natural person to the performance of its contracts.

The law, in authorizing the creation of corporations, provides, at the same time, for their forced as well as lor their voluntary dissolution.

The law authorizes the stockholders of a business corporation, such as the Louisiana Brewing Company was, to dissolve at will, up - on a vote of three-fourths of its stockholders. Rev. Stats., Sec. 687. This privilege is incorporated in the- company’s charter, and no act of the board of directors could deprive the stockholders of such rights; and the contract the corporation had made with the plaintiff could have no such effect.

It has been repeatedly decided that “the laws of a State in this regard enter directly into the contract, and, as corporations have the power to dissolve themselves, or consent to a forfeiture of corporate franchise, all persons must be regarded as having contracted upon the hypothesis of the existence and possible exercise of this power.” State vs. New Orleans Gas Light Company, 2 R. 332; Hunter vs. Insurance Company, 3 An. 294; Palfrey vs. Paulding, 7 An. 363; Trisconi vs. Winship, 43 An. 49; Mumm vs. Potomac Company, 8 Peters, 152; Railroad Company vs. State, 29 Ala. 586; Tuft vs. Pittsford, 28 Vermont, 286: Given’s Ultra Vires, Secs. 138, 435.

But it is equally true that such dissolution does not destroy the obligation of the company’s contracts — the equitable rights of creditors surviving the act of dissolution, and attaching to the assets and property of the corporation in the hands of its liquidators. Morawitz on Corporations, Sec. 1035; Curran vs. Arkansas, 15 How. 304.

Whether, however, obligations in futuro of a corporation, such as plaintiff seeks to enforce, survive a dissolution, is a question of serious difficulty.

The right of dissolution being expressly granted by law, and the law being read into such a contract, it is not easily perceived how it could be enforced specifically, or damages for non-performance granted — non-performance being the necessary result of dissolution.

Lex neminem cogit ad impossibilia.

But, preliminary to this discussion, a question arises in reference to the plea of estoppel that is urged against the plaintiff, based on the ground that he was a stockholder and director in the corporation, and participated in the proceedings which culminated in its dissolution, and is, by such action, concluded from claiming damages resulting from such dissolution.

Quoad this transaction, plaintiff was an utter stranger to the corporation, and has a right to be dealt with as such, and to have his contract interpreted just as though he had no relations of trust with the corporation, for the principal and sufficient reason that his action was not controlling, and any resistance on his part, to dissolution, could not have prevented it; and equity does not require resort to a vain effort to accomplish an impossibility.

We are, therefore, of opinion that the estoppel urged is not good.

Whatever may be the correct view to be taken of the allowance and measure of damages, it is obvious that the rights of all parties became fixed and irrevocable at date of dissolution, and that which in the contract was potestative or conditional became absolute at time of liquidation.

In a recent and well-considered case the Florida court said:

“It has been held in England, as well as in this country, that when one party, before the time of performance of the contract has arrived, renounces it to the other party, the latter may act upon the renunciation, treat the contract as broken, and sue before the time for performance.” Sullivan vs. McMillan, 8 So. Rep. 450.

The purport of that opinion is that when there is an executory contract for the manufacture and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendors not to manufacture any more, the vendor being able and desirous to complete the contract he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for a breach of contract.

To the same effect are numerous other authorities, to-wit: Howard vs. Daly, 61 N. Y. 362; Dugan vs. Anderson, 36 Md. 567; Fish vs. Folley, 6 Hill. 54; Tinny vs. Ashley, 15 Pick. 574; Muttaly vs Austin, 97 Mass. 30; Smith vs. Lewis, 24 Conn. 624; Falls vs. Hemmingway, 64 Me. 373; Morrison vs. Loryoz, 9 Minn. 319; Town vs. Turnpike Co., 14 Vt. 311; Railroad Co. vs. Van Duson, 29 Mich. 431; George vs. Railroad Co., 8 Ala. 234; Friedlander vs. Pugh, 43 Miss. 111; Railroad Co. vs. Howard, 13 How. 307.

Considering plaintiff’s claim for damages we find it to be predicated on the principles of the code, and he makes claim to reimbursement exclusively upon the ground that the inexecution of the company’s agreement-to continue to supply him with beer of its manufacture for bottling purposes rendered his bottling plant absolutely useless to him, and caused the destruction of his business, and, hence, the measure of his damages is the loss of the profits anticipated to result from that enterprise, for the residue of the unexpired term.

The controlling article of the code on the subject “ of damages resulting from the unexeeution of obligations,” declares that “the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profitof which he has been deprived;” or in the further words of the article, “ when the debtor has been guilty of no fraud, or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” R. O. O. 1934.

In this connection the question to be determined is, whether the unearned profits of a transaction properly enter into a calculation of the loss which the creditor has sustained, and the profit of which he has been deprived, in the sense of that article.

The decisions based on that article have invariably placed a strict interpretation on its provisions, the court, generally, awarding only such damages as will fully indemnify the creditor, and, disallowing speculative profits, confining them to the immediate and direct consequences of the breach of contract.

Such is the purport of the following cases, viz.: Ryder vs. Thayer, 3 An. 150; Arrowsmith vs. Gordon, 3 An. 105; Porter vs. Barrow, 3 An. 140; Reading, Price & Co. vs. Donovan, 6 An. 491; Smith vs. Thirlew, 17 An. 239; Birge vs. Railroad Company, 37 An. 468; Vidalat & Co. vs. City of New Orleans, 43 An. 1121.

In Harrison vs. Railroad Company, 28 An. 777, quite a similar question arose to the one under consideration, and the court said: “ The question is, what damages had the plaintiff sustained up to the time this suit was instituted, and how are those damages to be ascertained.”

An examination has satisfied us that our jurisprudence is in accord with the opinions of text writers and the jurisprudence of other courts of the country in this regard.

One author announces the general rule to be that an allowance of damages should be restricted to “ the natural and proximate consequences of the breach.” Southerland on Damages, pp. 17, 74.

Another says: “ The future profits of a business, which has been interrupted, are open to the objection of remoteness as well as of uncertainty.” 3 Parsons on Contracts, p. 281.

Another says: “It is a rule that a catching bargain shall not be taken advantage of, so as to enable the plaintiff to put into his pocket a greater sum of money than form a fair and reasonable compensation for the injury he has sustained by the breach of a contract.” 2 Addison on Contracts, p. 1110.

The summary of opinion of the courts of the country, in respect to the allowance of future profits as an element of damages, seems to incline in its favor, with certain modifications, and they appear-rather to turn upon the question of the remote and speculative character of the damages claimed than upon their allowance vel non on the score of being future profits.

In United States vs. Behan, 110 U. S. 328, the Supreme Court, said:

“ When the .breach of a contract consists in preventing its performance without the fault of the other party who is willing to perform it, the damages which the latter can recover will consist, first, of what he has already expended toward performance, and, second, the profits which he would realize by performing the whole contract.

“The second item, profits, can not always be recovered. They may be too remote and speculative in their character and, therefore,, incapable of that clear and direct proof which the law requires.” Stating in conclusion, that “the prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby.”

This rule, in the assessment of damages ex contraetu, has been followed by the State courts, in varying forms of expression, and in many cases. Vide Walworth vs. Wettskind, 26 Kan. 482; Cates vs. Sparkman, 11 S. W. Rep. 846; Bingham vs. City, 13 Pac. Rep. 408;. Griffin vs. Colar, 10 N. Y. 489; Snell vs. Cottingham, 72 Ill. 161; Ruff vs. Renaldo, 55 N. Y. 664; Hexter vs. Knox, 63 N. Y. 561; Hinckley vs. Beckwith, 13 Wis. 34; Shepherd vs. Gaslight Co., 16 Wis. 849; 1 Sedg. Dam. 77; Field Dam. 10; King vs. Colter, 8 S. E. Rep. 59; Hamilton vs. Schumaker, 15 S. W. Rep. 715; Railroad Co. vs. Hutchins, 48 N.W. Rep. 398; McHose vs. Fulmar, 73 Pa. St. 365; Masterton vs. Hill, 7 Hill, 61.

Without entering into a more critical analysis of authority in reference to the allowance of damages for further profits, we think it quite clear that the plaintiff has not stated a proper case for the allowance of such profits. For it appears from the evidence that the-plaintiff was a large stockholder in the Louisiana Brewing Company,, and, also, a director, and, as such, he participated in all the proceedings which led up to and resulted in the liquidation of that corporation. The evidence leaves no doubt that he favored and approved it, and desired its consummation. The liquidation produced large-pecuniary advantage to the stockholders, to a participation in which, plaintiff is entitled.

It is true that he declined to vote for or to sign the final act of liquidation, assigning as his reason that it might prejudice his contract, yet, even at that time, and with the idea of protecting his-contract uppermost in his mind, he failed to oppose or vote against it, but, on the contrary, signified his approval of the action that was-taken by his associates.

It is difficult to appreciate how his mere refraining from voting ■on the question of dissolution alters or improves his position in any respect.

The only importance attaching to the 'question of dissolution vel ■non arises from the fact that it placed the corporation in the impossibility of performing its personal obligation under its contract with plaintiff. But the final result was just as effectually brought about by the various measures to which he expressly gave his assent and approval, and which operated the sale of the plant of the corporation and the abandonment of the enterprise.

If evidence was needed to further substantiate plaintiff’s full knowledge of and acquiescence in the liquidation of the corporation, it is readily supplied by the letter his lawyer addressed to the New Orleans Brewing Association soon afterward, in which the desire is ■expressed “ that some arrangement be made with him, by (the) association, at an early day,” etc. Replyingtheretothebrewingassociation promised and agreed to carry out the contract of the Louisiana Brewing Company in all respects, but the only answer he made to this proposition was the institution of this suit.

The resolution of the brewing association tendered exact and specific performance of every obligation of the contract.

Plaintiff, it is true, suggests certain possible disadvantages to which 'he would be subjected by the change of proprietorship, but they are more seeming than real.

It is true that in effecting the consolidation of the breweries, the brewing association acquired the ownership of other bottling establishments attached to other breweries; but these existed prior to the liquidation of the Louisiana Brewing Company, and were in active operation and competition with the plaintiff.

The evidence further shows that there were on hand at date of liquidation over 5000 barrels of the Louisiana beer, which had been actually brewed by that company, and which were subject to plaintiff’s order, and were tendered to him by the brewing association; and which would have supplied him under his contract, for more than one year; and he refused to accept it.

On the contrary, plaintiff chose to abandon his business and bring this suit for damages.

Under the facts and circumstances related, we are of opinion that the plaintiff’s case must fail, under the maxim volenti non fit injuria.

With regard to that part of the judgment awarding the plaintiff $10,878.16 as the value of his bottling plant, our conclusion is that it is likewise erroneous, and must be reversed; because the terms of the act of sale of the bottling plant to Daniels and Schleider are that, in case of the discontinuance of the bottling business, the Louisiana Brewing Company was reserved the right to purchase the plant, at a price to be fixed by arbitrators. The liquidators invoke that stipulation, and they have an absolute contract right to have it enforced.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that there be judgment rejecting the plaintiff’s demands at his cost in both courts — the rights of all parties being fully reserved in reference to the bottling plant under the contract.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,977.
    Succession of Mrs. M. Sparrow. On Application to Homologate Final Account, and Opposition Thereto.
    1. Iii case a right lias been reserved to a succession representative, to claim reimbursement for sums by him already advanced to minor heirs having an interest in the property under administration; such representative, making further advances to said minors, in order to supply them with necessaries for their support and education, which the tutor did not possess adequate means to supply them with, occupies toward such minors quasi contract relations entitling him to reimbursement of such sums since furnished also.
    2. Settlement thereof is clearly contemplated to take place in due course of the administration of the ancestor’s estate, from which the advances were made. To such case Art. 350 of the Revised Civil Code does not apply.
    3. A final succession settlement having been postponed fora number of years, on account of numerous complications and unavoidable causes, for which the administrator is not responsible, and in the meantime the mules and working cattle attached to the succession plantations having been annually leased therewith, the loss sustained by the death of any of said animals is rather to be attributed to natural causes, such as work, over-age and ordinary use will bring about, than to dereliction of duty on the part of the administrator in failing to obtain a decree for their sale, or to damage resulting from his misconduct.

    4. Charges against a succession, of whatever character they may be, such as funeral charges, law charges, lawyer’s fees for settling the succession, and, generally, all claims against the succession, originating after the death of the person whose succession is under administration, are to be paid before the > debts contracted by the deceased.
    5. Among such succession charges may be included claims of the administrator against minors for moneys to their tutor advanced for their support and education, and before the shares of said minors have been segregated from the mass of the succession and reduced to dominion and control by their tutor.

      APPEAL from the Eighth District Oourt, Parish of East Oarroll., Montgomery, J.

      Jos. E. Ransdell for Administrator, Appellant:
    1. If a succession owes no debts and the heirs are present, there is no law requiring the administrator to sell the succession property.
    2. The administrator can not sell the work stock and farming implements of cultivated lands belonging to a succession separate and apart from the lands. Sue. of Myrick, 88 An. 611; Sue. Sparrow, 89 An. 703; O. O. 468; C. I\ 660.

      E. P. Poehe, contra,

    cited: O. O., Art. 350; 39 An. 706; 42 An., 506; O. 0., Arts. 1051, 1163; 2 An. 538; 38 An. 611; 38 An. 303; 39 An. 696; 40 An. 484; 42 An. 500; 40 An. 494; 25 An. 221; 32 An. 321; 33 An. 1107; 35 An. 675.
   The opinion of the court was delivered by

Watkins, J.

This record presents the fourth appeal to this court in this succession.

In obedience to a previous decree of this court, in April, 1890, as reported in 42 An. 500, the administrator prepared and caused to be filed a final account of his gestión of the succession of Mrs. Minerva Sparrow, and attempted to sell a sufficiency of succession property to pay its established debts, and a sufficiency of the property of the respective interests of the heirs to pay their respective indebtednesses to the administrator.

The account was opposed, and the sale was enjoined by all of the heirs on sundry grounds, the principal one being that the administrator had neglected to make sale of the perishable property Of the estate, and had allowed it to deteriorate and perish while in his hands under administration, and for the value of which property he became responsible.

The opposition, on the part of the two minors, representing one-third of the estate, makes the additional point that, by a decree of this court made in this succession, they had been put in possession of their inheritance, and that no claim could be enforced against it as succession property, nor otherwise than by proceedings had contradictorily with their tutor; and that no claim against them for moneys advanced to their tutor for their account can be engrafted on proceedings had in their grandmother’s mortuaria. 40 An. 497.

The opposition to the account and the injunction were, consolidated and tried together, resulting in a judgment which homologated the account, including the sum of $3287.50, claimed from the minors for moneys advanced to their tutor for their account; perpetuating the injunction against the probate sale; and holding the administrator liable to the minors for one-third of the value of personal property lost, or destroyed during the accountant’s administration, extending from the 20th of July, 1883, to the 25th of June, 1887, and fixing their interest in said valuation at $2419.37.

Prom that judgment all parties appealed, but in this court a statement was made to the effect that the major heirs had discontinued their claim, thus leaving the controversy to be decided between the administrator and the minors.

Counsel for the minors submits the following propositions, viz.:

“ Under its present status the case presents for discussion and decision three points, which are as follows:

“1. Can the administrator of the succession of Mrs. Minerva Sparrow obtain a judgment, through a final account of administration, against the minor heirs, Mary and Kate Decker, for moneys advanced by him to their tutor, for their account?

“2. Can the administrator be held legally liable for the loss of mules and other property of a perishable character, for having failed to sell the same immediately after his appointment?

“3. Can an administrator be allowed to sell succession property to pay debts, when the debts are shown to be claims which he propounds against the heirs individually, some being minors in possession of their share of the succession property under judicial authority?”

I,

The first item of opposition that presents itself is the debit of $3287.50, entered on the tableau of debts which accompanies the account against the minors, Mary and Kate Decker.

That sum is the aggregate of two separate and distinct items of indebtedness which are thereon separately stated thus, viz.:

Item one. “Balance due by minors, Kate and Mary Decker, as per judgment above mentioned, which decreed them to owe the administrator $4018.84, and ordered him to pro rate as above mentioned, thus making his collection from them $2531.34, and leaving a balance due by them of $1487.50.”

Item two. “ Amounts advanced to C. S. Wyley, tutor for minors, Mary and Kate Decker, since filing the fourth provisional account as per exhibit A and vouchers attached, numbered from 1 to 20 inclusive, $1800.”

The former is explained by referring to the first preceding item on the tableau, which specifically refers to the “judgment on fourth provisional account, which decreed, etc.,” and which evidently is “ the judgment above mentioned,” as therein referred to. This explanation is further supplemented at the foot of the tableau, thus:

“The items of $1660.87 due by Mrs. Foster, of $679.03 due by Mrs. Ashbridge, and of $1487.50 due by the minors, Mary and Kate Decker, were approved on the fourth provisional account, and are placed hereon for the sole purpose of showing the exact amount due by said persons after making the pro rata distribution ordered by the judgment on said account.”

Reference to the report of our decision in this succession, to be found in the 42d of Annuals, at pp. 500, et seq., will show that we dealt with and disposed of the administrator’s fourth provisional account, and three tableaux of debts, the second of which was made up “ of debts due by the heirs to the administrator of the succession,” and which was opposed by the tutor of the minors, Mary and Kate Decker, on various grounds.

That opinion further shows that upon that second tableau there appeared but three items, one of which was the “ amount advanced to the minors Decker, $4018.84,” which is the identical sum and the exact amount that is described and dealt with on the tableau under present consideration. 42 An. 505.

Our opinion thus states the controversy, to wit: “Neither of the major heirs opposed the amount charged to them respectively, and hence the only question is, with regard to- the charges against the two minors, Mary and Kate Decker.

“ The tutor insists that it is not competent for the settlement tobe made in the succession of their grandmother, on an administrator’s account, but that it should be referred to him as tutor for allowance or rejection, and settlement thereof, in the tutorship. He further contends that, as no debts can be made against minors in excess of their revenues without the authority of a family meeting (R. O. O. 350), there is no legal reason for the enforcement of the administrator’s demand against them.”

But we made reference to what had been said in our former opinion (39 An. 706) on the subject, to the effect that the administrator’s advances to the minors “were manifestly prompted by laudable feelings and considerations of fairness and humanity, for which (lie)should not be made to suffer, if by any legal means he can obtain reimbursement,” and that “ we therefore deem it our duty to reserve the right of the administrator to demand the reimbursement of all sums advanced by him to the two heirs aforesaid, as well as for similar advances made to the minors, Mary and Kate Decker” (42 An» 505); and said:

“ Hence it is clear that the whole question is remitted to this succession settlement, and that it is narrowed to the amount of money the administrator expended for their account.

“ We can perceive no objection to this mode of proceeding, as the account and two of the tableaux concern the minors, and their interests are still xvnited with those of the major heirs in the succession» And it is quite as much a matter of justice to the administrator that their liability to him for advance payments made on their inheritance should be adjusted in the succession as payments so made to the major heirs” (42 An. 506) ; and affirmed the judgment of the lower-court homologating those tableaux.

This citation is sufficient to show that, in so far as the allowance of the item supra, of §1487.50, is concerned, it is fully coveredby our judgment on last appeal, and that the present tableau can not be disturbed in that respect. It is, also, quite sufficient authority for the settlement and judicial determination in the succession of the amounts that the administrator has advanced to the tutor of the-minors, “ since filing of the fourth provisional account” of administration, and aggregating $1800. For to that theory this court stands: committed in two opinions rendered in this succession, and it was., doubtless, on the faith of them that the administrator acted — as he undoubtedly had a legal right to do — in furnishing the minors the means of subsistence from the funds in his hands subject to their demands under the exceptional circumstances stated.

It is, therefore, quite sufficient to state that it is our deliberate conviction that the judgment of the court,- homologating the tableau, was jurisdictionally well grounded in respect to the demands of the-administrator against the minors.

In respect to the amount of the claim of the administrator against the minors, being in excess of their revenues, those two opinions— 89 An. 706 and 42 An. 567 — appear to be quite as conclusive as they are on the previous question — because we said of the administrator’s claim, that while “all of these proceedings were irregular, and were carried on outside of the law * * (he) should not be made to suffer, if by any legal means he can obtain reimbursement. * * We therefore deem it our duty to reserve the rights of * * the present administrator to enforce their respective rights against the two heirs of age * * by proper proceedings in due course of administration, and we also reserve the rights of the administrator to demand reimbursement of all sums advanced by him to the two heirs aforesaid, as well as for similar advances made to the two minors, Mary and Kate Decker.” 39 An. 706.

When further litigation, in connection with the reserve in our previous decree, brought this succession before us a second time (40 An. 496) there was question made with reference to the right of the two minors to be put in possession of their interests in the succession, and it was objected on the part of the administrator, that it was a condition precedent to their entering into possession that the amounts they owed him should be first paid, but this view did not ■obtain, the court declaring:

Besides, even if the law did not provide adequate powers to enforce any claim the administrator might have against the minor heirs, it is evident that the administrator already has in his hands funds that can be applied to the satisfaction of any demands against them." 40 An. 496.

Thus we say in one opinion, that the administrator’s right to demand of the minors reimbursement of the sums paid is reserved “by proper proceedings indue course of administration" (39 An. 706); in another, that he “has in his hands funds that can be applied to the satisfaction of any demand against them,” (40 An. 496) ; and in another, “that the whole question is remitted to this succession settlement” (42 An. 506).

And in the last case we examined and approved the claims of the administrator against the minors, and adjudged “the shares or interests of the minors (to be) liable therefor." It is quite true that we also employed the expression “there being no proof in the record to show that the sums expended exceeded their revenues” (42 An. 507) ; yet, on careful reflection, we are of the opinion that, under the circumstances of this case, the provisions of Art. 350 of the Revised Civil Code are not controlling. That article is found in the particular section of the code which treats “of the administration of the tutor,” and it provides a. rule of action for the tutor. Butin this case it is apparent that, while the succession of Mrs. Sparrow has been judicially terminated quoad the minors interests, yet there has been no separation of their patrimony from the mass of the succession, or from the interests of their co-heirs, and it is from the funds and property thus bound up that advances to the minors have been made, antecedent to the commencement of the tutor’s actual administration of the minor’s property. Inasmuch as settlement is clearly contemplated to take place “in due course of administration” of the estate of Mrs. Minerva Sparrow, it seems to be indisputable that such settlement must be made in pursuance of the law governing successions, and not the law governing tutorships.

Indeed, the code puts upon the act of one who furnishes a minor with the necessaries of life, the stamp of a contract by which the latter is bound, because it says, “ When the minor has no tutor, or one who neglects to supply him with necessaries for his support or education, a contract or quasi contract for providing him with what is necessary for those purposes is valid.” R. O. O. 1785. The act of the administrator was in strict keeping with the provisions of that article.

As this is the sole ground of objection that is urged to the administrator’s claims against the minors, in our opinion they were correctly allowed.

II.

In respect to the complaint made by the opposing minors of the alleged maladminstration of the administrator, resulting in a loss of about seventy-five (75) mules out of a total of one hundred and six (106) that were included in the inventory of 1883, under which he went into possession, and which were appraised and listed thereon at one hundred dollars each, making an aggregate valuation of $10,600, it appears that the judge below regarded it as the basis of the administrator’s liability, and he gave.judgment accordingly.

It is on this theory that the argument of the minor’s counsel proceeds — insisting that, immediately upon his qualification in July of 1883, the administrator took charge and managed, operated and cultivated the succession plantations, upon his individual account, and continued so to do until the 1st of January, 1888. 39 An. 702.

That in the cultivation of said plantations the administrator used, and employed the mules in question.

Thereupon, the insistauce of counsel for the minors is that, as administrator, it was his plain, legal duty to have caused a sale to be made of the mules, within ten days after his qualification, in pursuance of the terms of R. O. O. 1051 and 1163.

To this claim the administrator’s counsel replies that it is a fact that has been ascertained by this court that the succession was not only perfectly solvent when opened, but owed no debts, and, consequently, there was no occasion for the sale of the mules.

The further answer is made that during the years since 1883 the mules were used and worked on the succession plantations, to which they were attached, and with which they were leased annually; and that Ohaffe was condemned personally to pay a rental of $4000 per annum therefor, from July, 1883, to January 1, 1888; and that the minors enjoyed their proportionate share of the revenues of the plantations and the mules, and are equitably estopped from urging any complaint of such use and enjoyment, or of the consequent loss sustained.

Referring to the first article cited (1051), it appears to point out the steps to be taken as a conservative measure, pending the acceptance or renunciation of a succession by the heirs, for it is prefaced by the declaration that “the administrator can not sell the immovables of the succession committed to his charge until the term for deliberation has expiredand then it directs that “ if there be any (movables) liable to be wasted or expensive to keep, he can sell them on the special authorization of the judge,” etc.

Surely, no such condition existed in this case. The mules were neither liable to be wasted nor expensive to keep, because they were attached to the plantations and leased and used therewith. And, besides, all the heirs, minors as well as majors, have, long since, accepted the succession; and the law imposed no duty on the administrator to sell, but gave him permission to do so, upon first securing the special authorization of the judge.

We fail to find in the other article mentioned (1163) any more definite duty imposed upon the administrator, though it is quite true it says, viz.:

“ The curator is bound, in ten days after his appointment, to demand that all the remaining movable effects * * be sold.”

But the word “remaining” connects that article with the one preceding it, which declares, viz.:

“ When there are, in a vacant succession in which the heirs, or a part of them, are absent from and not represented in the State, movable effects which are perishable or costly to keep, the judge can, * * before the succession is opened, order the sale of them,” etc. R. O. O. 1162.

By no means can those articles be extended to a solvent and accepted succession to which there are no absent heirs.

Even if they are to be taken as strictly applicable, they denounce against the curator or administrator failing to observe their requirements no penalty of any kind, and, in the absence óf such provisions» it is manifestly our province to' judge of the dereliction and of its consequences.

The rule of conduct which the code prescribes for a curator, or administrator, is that—

“ Every curator of a vacant succession, or of absent heirs, is bound to take care of the effects intrusted to him, as a prudent administrator, etc. * * He is responsible for all damages caused by his misconduct.'1’ R. C. O. 1147.

It is not alleged, proved or argued that the administrator did not take care of the property entrusted to him as a faithful administrator. It is not pretended that any damage happened to the mules through any misconduct of his. On the contrary, his administration has been admittedly clean, fair and faithful; and the loss of the mules seems rather to have been occasioned by natural causes, such as work, over-age and ordinary use will bring about. For such losses the administrator can not be made liable on the score of misconduct.

It is evident, to our minds, that the allowance made on this score was erroneous, and must be disallowed and rejected'.

III.

While, technically speaking, the debts and charges that are marshalled by the administrator upon the final account and accompanying tableau are not debts of the deceased, yet they are evidently debts of the succession, and, as such, they are debts of high privilege, for the code says:

“The charges against a succession, such as funeral charges, law charges, lawyer’s fees for settling the succession * * and all claims against the sueeession originating after the death of the person whose succession is under administration are to be paid before the debts contracted by the deceased,” etc. (R. O. O. 3276), and those in question are of that character.

It is therefore evident that the following argument of counsel fails to support the theory he has advanced, viz.:

“ Hence it follows that the debts for which the administrator seeks to sell the property of the succession, with the exception, possibly, of his commission, are not even charged as debts of the succession, inherent to it as acts of the deceased, but they are avowedly debts of the heirs individually, contracted by them since the death of their ancestor, since the opening of her succession, and growing out of causes and transactions entirely indépendent of, and foreign to, the succession.” (Our italics.) Brief of opponent’s counsel, p. 10.

IV.

In so far as the unmatured note for the sum of $4000, balance due on plantations rents, is concerned we see no occasion to prolong an administration already too greatly protracted. That note may be quite as well surrendered into the possession of the heirs as any other asset of the succession, and collected by them.

In our opinion the district judge erroneously sustained and perpetuated the injunction against the probate sale, and his judgment ought to be amended.

It is therefore ordered and decreed that- the judgment appealed from be so amended as to dissolve the opponent’s injunction against the sale proceedings at their cost; and so as to reject and disallow all of their demands.

And, as thus amended, it is ordered and decreed that the judgment homologating the administrator’s final account,, and the accompanying tableau of debts, be affirmed, and the administrator be authorized and directed to proceed with the sale to pay the debts and charges thereon placed.

And it is finally ordered that, upon due compliance with the decree of the lower court in the premises, he be finally discharged.


author: McEnebv, J.

text:
    No. 10,846.
    Canal & Claiborne Railroad Company vs. Crescent City Railroad Company and Electric Traction & Manufacturing Company.
    The city government of New Orleans has the right to grant the privilege of the use of a part of the tracks of street railway to another company. It can continue the use of a different car, propelled by a different motor than the one in use on the track.
    The permission to use the electric motor is one of the means of-using the public streets, and is granted for the public convenience and is the exercise of the police power of the city over public places.
    A company desiring to use the road-bed and material in place of another company must first make compensation. But where an injunction is granted, without the prayer for compensation before using the track, but a prohibition for the use of the track for any and all cars, it will bo dissolved.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    J. R. Beckwith for Plaintiff and Appellant:
    1. Under the Constitution of 1879, private property can not be taken or damaged for any public use until full compensation is made. Act 110, Constitution 1868; Constitution 1879, Article 156; Griffen vs. R. R. Co., 41 An. 808; Cooley Const.' Lim. 680, 681 (note); Chicago vs. Taylor, 125 U. S. 161, 170; Railroad vs. Ayers
    2. When any individual or corporation is to he divested of property for any public use, against the will of the party tobe divested, a strict compliance with the law providing for expropriation, and the conditions precedent to taking the property, must be strictly complied with, or title and rights are not divested, and the party claiming to have divested any one of property and right, must affirmatively show full compliance. Cooley on Const. Lim. 528; Gillenwoter vs. R. R. Co., 113111.1; Stanford vs. Warn, 27 Cal 171; Nicholls vs. Bridgeport, 23 Conn. 189; Judson vs. Bridgeport, 25 Conn. 428; People vs Brighton, 20 Mich. 57.
    3. The grant of street railway franchise underwhich the plaintiff, the Canal & Claiborne Railroad Company, is now operating its road on Canal street contains no condition or limitation of the grant, by which the city of New Orleans can grant other railway companies lawful right to run their cars on that company’s tracks on Canal street, without the consent of the Oanal & Claiborne Railway Company first given and obtained.

      F. P. PooM on the same side:
    1. One of the essential requisites to sustain the plea of res adjudicata is that the thing demanded be the same in both actions. O. O. Art. 2286.
    2. The only power under which a municipal government can take the private property of a corporation for the use of another corporation is that of eminent domain. 41 An. 561.

      3. In granting a franchise to a corporation to use the tracks of another corporation by a previous grant, the municipal authorities can fix no limitation to the amount of compensation. Such an ordinance would be unconstitutional as being violative of the rights of private property. Sou. Reporter, Vol. 10, No. 16,'p. 389.
    4. An injunction will lie to restrain a town or city from taking theprivate property of a corporation without first having the same lawfully taken and condemned, and compensation paid therefor. American and Eng. ICncye , Vol. 10, p. 964.

      John M. Bonner and Farrar, Jonas & ICruttsehnitt for Defendants and Appellees:
    1. The issue restated and the inconsistencies of plaintiffs argument pointed out.
    2. There is no law in this State under which the property of a street railway can be expropriated. The existing law only applies to property in land. Rev. Stat., Sec. 1479.
    3. Under the Constitution and the laws of this State, thecity has complete control over her streets and the methods in which they are to be used.
    4. The city has the right to grant the use of tracks already laid in the streets to another company, on-terms of fair and equitable compensation for their use, without resorting to expropriation proceedings. 15 S. W. Rep. 1023; 16 S. W. Rep. 966; 19 Am. Law Reg. 765; Redfield, Law of Railways, Vol. 1, 318, Sec. 10, and 320, Sec. 16.
   The opinion of the court was delivered by

McEnebv, J.

The petition avers that the Oanal & Claiborne Railroad Company is a corporation; that in the year 1887 the Canal & Claiborne Streets Railroad Company, another corporation, acquired from the city of New Orleans, for itself and its assigns, in due form, a lawful grant to own and operate a street railway for the term of twenty-five years, on and over Oanal street and the other streets described in the petition and in a copy of the grant annexed to the petition. The term of the grant commenced to run from the 8tb of May, 1887. This grant was not only a legislative act of the city of New Orleans, but was in due form and by due authority embodied in a solemn contract by notarial act, made a part of the petition by copy. That during the month of July, 1888, for a valuable consideration, the plaintiff, by purchase, acquired an assignment of the grant, and from that date has been the full owner of all the rights and franchises contained in said grant, and still owns the same, having acquired all the rights of its vendor, the Canal & Claiborne Streets Railroad Company, the original grantee. Among other property so purchased and acquired is the track or railway on Canal street, running from the intersection of St. Oharles street with Canal to the terminus at Wells street near the river, and back by another track or railway on the lower side of Canal street to the intersection of Bourbon street with Canal street.

That the Crescent City Railroad Company is carrying on a street railway and operates two lines of railway, one commonly known as the Annunciation line, running through Tchoupitoulas, Annunciation and other streets, having its lower terminus on Canal street, in the middle ground, near the intersection of Camp with Canal streets, and another line which it claims to have acquired from some alleged grantee for a street railway, commencing at the junction of Camp and Prytania streets, running along the streets named in the petition but coming back for its final or lower terminus to the point of commencement, that is, to the intersection of Camp and Prytania streets; and defendants claim that this grant, originally made to one Seymour and his associates, was by some subsequent action of the city authorities expanded so as to give the grantee and his assigns a right to extend a line to Canal street. This line is known as the Coliseum line.

That after the Crescent City Railroad Company got possession of this supposed grant and its expansion, they commenced running cars on this Coliseum line over the line and tracks of plaintiff on Canal street, without its consent and unlawfully, from the intersection of St. Charles street with the upper side of Canal street to Wells street, and back on the lower side of Canal street on your petitioner’s track to the intersection of Bourbon street with Canal; that this act was unlawful, without the consent of plaintiff and without any right or warrant of law; the first invasion of the tracks and rights of plaintiffs was with mule or horse cars of the ordinary construction and weight.

That the right of action to demand indemnity or damages, arising from this first invasion of plaintiff’s rights by the use of said mule or horse -cars, is reserved in the petition. That not contented with the wrong done by running its Coliseum cars over the track of plaintiff, defendants now attempt a further outrage and invasion of plaintiff’s rights, and are engaged in constructing a new railway through Erato street, so planned as to connect the Annunciation street line, whose cars could not, without such junction, run over plaintiff’s tracks, with the Coliseum street line, of which line the cars had the unlawful use of plaintiff’s tracks, so that additional cars from the Annunciation line, that prior to said action could not reach plaintiff’s line or tracks on Canal street, can be diverted from the Annunciation street line, taken through the Erato connecting link, sent over the Coliseum line and thence on and over plaintiff’s tracks on Canal street; that they threaten and intend to run many, if not all, of their Annunciation street cars through said Erato street connection over the Coliseum line over the Canal street tracks of plaintiff, increasing the number of ears running on plaintiff’s track over the number formerly running from the Coliseum track ov&r the plaintiff’s line by at least fifteen additional cars, making trips over the lines at intervals not exceeding ten or fifteen minutes during the entire day.

That this is not the only wrong that is contemplated by the defendants ; but that the Orescent City Railroad Company has entered into a combination with the other defendant, the Electric Traction & Manufacturing Company, by which the said Electric Traction & Manufacturing Company is to operate or provide the rolling stock for the Crescent City Railroad Company on its lines, to be propelled over plaintiff’s track on Canal street. The new rolling stock to involve a change of motive power from car or mule propulsion to some form of electric propulsion by electric motor and storage batteries, with a construction giving the cars a weight of at least eight thousand pounds independent of any passenger load. That the Electric Traction Company intend to stock the road with these heavy cars and join the defendant railroad company in its assault upon the plaintiff’s rights and property. That the railway of plaintiff on Canal street was constructed and designed in accordance with the specifications and obligations contained in its contract with the city for the use of cars propelled by mules or horses of not over thirty-eight hundred pounds in weight, and is not constructed to bear the heavy rolling stock threatened to be put upon the structure, and is not adequate to bear and sustain a traffic carried on in cars of a character that without load weigh over four tons.

That the additional cars thrown on plaintiff’s tracks by the Erato street connection from the Annunciation line will crowd petitioner’s tracks on Canal street so that in the event that they do endure the additional cars and additional traffic without destruction, there will be practical eviction of plaintiff from the use of its own property in its tracks for its own legitimate use in the management and operation of its own lines for its own business.

The relief demanded is an injunction prohibiting the defendants from running any cars coming through the new roadway on Erato street, connecting the Annunciation street line with the Coliseum line, and from any unlawful use, meddling or interference with the plaintiff’s line on Canal street by any additional cars running through Erato street from Annunciation street over the Coliseum line and over plaintiff’s tracks, and from running any electric motor of heavy weight, and from meddling and interfering in any manner with plaintiff’s rights in the complete dominion, control and use of its street railway line and property on Canal street.

The Crescent City Railroad Company, after pleading the general issue, averred that all the matters and things set up in the petition relative to the rights of the plaintiff to that part of the track on Canal street, and relative to the right of the Crescent City Railroad Company to use the same, were in issue between said Canal & Claiborne Streets Railroad Company and this defendant, in suit Claiborne Railroad Company vs. Crescent City Railroad Company, and that a final judgment has been rendered therein in favor of the Crescent City Railroad Company, and which final judgment was affirmed on appeal to the Supreme Court, and this defendant pleads said record and said judgment as res adjudicata, and makes the record of said suit a part of this answer for reference and proof,

That all that portion of the track on Canal street claimed as being the exclusive property of the plaintiff was originally constructed for a common trunk line, which all the railroads running cars on Canal street had the right to use under the conditions of the city ordinance providing for the construction of said trunk line, that the pretended new grant of 1887, set up by the plaintiff, was necessarily obtained subject to the conditions of the old grant, and subject to the rights acquired under the provisions of the old grant by che Crescent City Railroad Company in pursuance of certain ordinances from the city of New Orleans, and that under the provisions of said old grant and the right acquired from the city of New Orleans, the Crescent City Railroad Company is as much the owner of said line and has as great a right to run cars upon said line as the Canal & Claiborne Railroad Company has, the only obligation upon the Crescent City Railroad Company, or the city of New Orleans, being to reimburse to the plaintiff a fair and reasonable proportion of the value of the portion or portions of the road to be so used.

That the grant of 1887 was obtained from the city of New Orleans under the present charter, which provides that the Council shall have power to compel all railways on any one street to run on and use one and the same track;, that the defendant has been lawfully •and peaceably running its cars, over the trunk tracks on Canal street since 1881, and that its right so to run its cars has been adjudged in the suit above set forth; that this defendant has obtained permission from the city of New'Orleans to use electricity in propelling its cars, and that the plaintiff has no right to say what kind of cars, or what number of cars, or what weight of cars this defendant, under authority from the city of New Orleans shall run in the streets, over its own tracks, in accordance with its franchises.

That for more than a year it has operated one of said motor cars over the said common track, without injury of any kind thereto; that the ordinance No. 4848, approved March 17, 1890, is not a new grant to this defendant, but is simply a modification of a grant made in the year 1880, and not a substantial change thereof; that even if it were a new grant it is clearly within the police power of the city of New Orleans over its streets; that the defendant has constructed tracks through Erato street in accordance with the provisions of the ordinance approved March 17, 1890, and that it intends to run a portion of its Coliseum cars through the said street and over the Annunciation street tracks, and that it intends to run some of the Annunciation street cars through said connection as the exigencies of travel and the requirements of business may demand, and defendant says it clearly has the right so to do under its various grants from the city of New Orleans.

Judgment was rendered in favor of the defendants in the lower court, and the plaintiff has brought the.case here on appeal.

The right of the defendant to run cars belonging to the Coliseum and Upper Magazine line has already been définitively settled in the decree in the case of the Canal & Claiborne Street Railroad Co. vs. Crescent City Railroad Company, 41 An. 561. It is claimed, however, that the Crescent City Railroad Company is operating two lines of railroad, one known as the Annunciation line, which was extended through certain streets so as to bring its cars over plaintiff’s tráck on Canal street, thus increasing the number of cars run by defendants over the track of plaintiff, which is recognized as a trunk line.

The defendants had the permission of the city government to run over this line and over plaintiff’s track. It is immaterial to consider the question raised whether this was anew franchise as the city had the undoubted authority to permit any company to use the track of plaintiff. 41 An. 561.

In the occupation and use of plaintiff’s track, there can be no interference with the right of the plaintiff to runs its cars on schedule time, in accordance with its contract with the city. To permit this would be to practically evict plaintiff from the use of its road-bed, and in the management and operation of its business. There is no evidence, however, that such an eviction has taken place.

It appears from the record that the co-defendant, the Electric Traction & Manufacturing Co., placed its cars on the track of plaintiff, under the franchise enjoyed by the defendant, and in accordance with a contract entered into between them. They were manufacturers of a certain description of car, which the defendants placed on their line and ran over plaintiff’s track. That the track was originally constructed for horse cars, and was not strong enough to bear the weight of electric cars, is no reason why they should not be placed on the track. There are constant improvements in the mode of travel. New and improved conveyances are daily coming into use. Public convenience and necessity require the adoption of the most improved methods. The streets belong to the public. Their use for the public cannotbe abridged. Hence when the municipal government in its discretion sees the necessity of permitting the use of the streets by improved cars, driven at greater speed by a new motor, no one can complain, as no franchise can be granted over a street exclusively to any one, for the continued use of any particular kind of conveyance.

The electric motor is but one means of using the streets, and the permission to use the electric car is established for the public convenience and'is the exercise of the police power of the city over its public places. It can not be questioned unless, as stated above, its use evicts the company which owns the road-bed and material in place from its property.

The principle has been announced by this court that before one company can avail itself of the use of the road-bed and material in place of another, the road so desiring to enter upon the part of the track of another must first make compensation. R. R. Co. vs. Orleans R. R. Co., 44 An. This question is not presented in, this case. The relief asked is an absolute prohibition to the putting of any and all cars on plaintiff’s track by the defendant. The defendant has used the track of the plaintiff. It has its cars of the Annunciation line now on plaintiff’s track. It is true the injunction was bonded, but there is no prayer in the petition that compensation be made to the plaintiff before use of its tracks. The relief is now one of damages.

Judgment affirmed, with reservation of the right of plaintiff to sue defendants for damages for use of its tracks.