text:
    No. -
    First Circuit
    COLT COMPANY v. SEAL
    (June 26, 1926. Opinion and Decree.)

      {Syllabus by the Editor.)

    • 1. Louisiana Digest — Sales—Par. 238.
    If the article sold to the defendant is unsuited for the purpose for which it was sold, the defendant, upon being sued for the price by the plaintiff is given relief from the contract for redhibitory vices.
    2. Louisiana Digest — Sales—Par. 239.
    The prescription of one year for redhibitory action provided by Article 2534 of the Civil Code does not apply to the action of a defendant in his defense when he is sued for enforcement of the contract.
    Appeal from the City Court of Bogalusa, Louisiana. Hon. O. E. Ott, Judge.
    Action by. J. B. Colt Company against W. A. Seal.
    There was judgment for the defendant and plaintiff appealed.
    Judgment affirmed.
    B. D. Tally, of Bogalusa, attorney for plaintiff,, appellant.
    Carter '& Brock, of Franklinton, attorneys for defendant, appellee.
   ELLIOTT, J.

J. B. Colt Company sold and delivered to W. A. Seal an acetylene gas light machine for the price and sum of $274.75. The purchasing order bears date August 21, 1920, and the machine was installed September 4, 1920, defendant giving his note for the purchase, price and paying in addition for the installation. On October 1, 1921, defendant wrote the plaintiff that he could not pay more than $100.00 on his note and requested that the balance be extended for another year. This must have been agreeable to the plaintiff, because the defendant, on November 1, 1921, sent his check to the plaintiff for $100.00 and a new note for $174.47. On November 1, 1923, defendant paid plaintiff’s collector $50.00 and executed another note for $148.47, which is the note on which the plaintiff has brought suit. The defendant enumerates a number of defenses and contends substantially and in effect in his answer that he bought the acetylene gas light machine under a guarantee that it would be in first-class condition and would give perfect satisfaction. That relying on these statements of plaintiff’s agent be paid $100.00 cash and gave his note for $174.75. That when he tried to use the plant he found it to be worthless for the purpose 'for which it had been sold him. That when in use it emitted an odor of such nature and character that it was unbearable and leaked gas .all through the house. That, on account of the odor, he was forced to close it down. That he notified plaintiff of the situation, but plaintiff made no effort to. remedy the trouble until after the maturity of the note, when it sent an agent to examine and repair the • plant and collect the note. .That the agent pretended to repair the plant and guaranteed the plaintiff that it would then give satisfaction. That the agent then requested a payment and a new note; that relying on the promise and guaranty of the agent he paid $60.00 and executed the note for $148.47, but it did not do. any better. That he notified plaintiff from time to time of the situation but his letters were not answered. That the renewal notes were obtained by fraud and misrepresentation after he ceased using the plant. That he had repeatedly asked plaintiff to take the plant off his hands, and in his answer he tenders the plant to the plaintiff. The trial judge rendered judgment in favor of defendant, rejecting plaintiff’s demand and rescinding the sale. The plaintiff appealed.

On the trial of the case the court asked the defendant, referring to the letters declared on in plaintiff’s petition and others annexed in the testimony of Albert Port-man, if these were the only letters he had written the plaintiff. The defendant, over plaintiff’s objections, answered that he had written at least a dozen other letters complaining that he had been unable to use the plant. The plaintiff complains of this and contends that the court, acting on defendant’s answer, had presumed that these other letters were in the hands of the plaintiff. The plaintiff declared on ■ two letters and refers to the renewal of notes on part of defendant as admitting his liability, etc. The plaintiff had also offered in evidence the testimony of witness Port-man, with some other letters attached to his depositions which had been written the plaintiff by defendant, in which defendant did not complain of the machine. It was all right for the trial court to ask the defendant if he had written other letters and to receive his reply that he had written at least a dozen and that these letters contained complaints that the machine could not be used.for the purpose for which it had been sold him. And these other letters were presumably in plaintiff’s possession and if plaintiff did not receive these other letters complaining that the machine could not be used, it should have, while adducing the letters which it offered in evidence, to show no complaints, also adduced testimony, if such was the fact, that plaintiff had not received any qther letters to the contrary.

The plaintiff also offered in evidence the testimony of Peter Mayer that he had packed and shipped the generator to defendant and that it was in good condition when shipped. It was therefore admissible for defendants to prove that it was not in good condition after installation, due to the unbearable odor from leaking gas, etc. The witness Portman, testifying for plaintiff, had state.d that plaintiff did not install the plant. It was proper for the defendant to show that although he had paid for the installation that the work was done by a party sent to do it from the. plaintiff, and the evidence supports defendant’s contention in that respect. The witness Portman testified that plaintiff sent a collector to collect from defendant and that his authority extended to making necessary adjustments of the machine needed at the time he called. This party called in 1923 and defendant testifies that the generator was out .of use because of the odor it emitted when in use. Therefore it needed whatever was necessary to remove the trouble and that this agent undertook to remedy the matter and pretended that he had fixed it, and that, acting on his statement that it had been fixed, and would now give satisfaction, he paid $50.00 and executed a new note for $148.45, the note sued on. That the agent stated he would call back in a few days and see how the plant was working, but he did not return. Defendant testifies that he tried the plant the first night after the agent had pretended to fix it and that it was as bad if not worse than it had been from the first, and that it remains in that condition and has never been in condition to be used for the purpose for which it was sold him and there is no evidence to the contrary. In one of the letters adduced against defendant bearing date February 15, 1924, defendant suggests to plaintiff to come and get the plant and sell it to pay the balance due on account of it, because he could not get much service out of it. The printed order signed by defendant guarantees the generator to act automatically. According to the evidence its action was such that defendant and his family could not remain in the rooms which were lighted, that the odor was so unpleasant that they found it necessary to open up the room and retire to the gallery until it passed away. The evidence is, in effect, that defendant used the plant to light his house for a while and at times occasionally; but after each short period of time, despite efforts to remedy the trouble, the odor was such that it was found necessary to desist and return to lamps. The purchasing order contains a printed statement that no agent or representative of the company has made any statement or agreement, verbal or written, modifying or adding to the terms and conditions herein set forth, etc. But there was also contained in the order an implied warranty as a matter of law that the plant could be used for the purpose for which it was sold by the plaintiff and bought by the defendant and if it could not be used for that purpose, without the fault or neglect of defendant, the situation was equivalent to an eviction. Under the law the seller, in case of .eviction, is obliged to make restititution, even though there be stipulation to the contrary, unless the buyer is aware of the danger and buys at his peril and risk. C. C. Arts. 2505 and 2506. It is not contended that Seal was aware of the danger at the time of buying and we are satisfied that he was not. The fact that defendant made payments, gave renewing notes, wrote letters making no complaint about the odor, etc., and asked for further time weighs strongly against his present contentions, but giving all the evidential and presumptive force, proper to such facts, they do not absolutely prevent showing to the contrary, and when after the crucial fact is established beyond doubt that the plant has never at any time been useful for the purpose of lighting defendant’s house, that its use for the purpose was always, notwithstanding occasional use, so inconvenient that it must be supposed that defendant would not have bought it if he had known that it could not be used for the purpose; and no fault or neglect in the matter on part of defendant appears, then in such a situation it must be held that plaintiff has failed to discharge its undertaking in the sale and in reason defendant should not be compelled to discharge his undertaking in the same matter. The plaintiff in such a case coming into court to compel performance on part of defendant gives th^ defendant a right to invoke the law of defense. C. C. Arts. 1882, 2047; C. P. Art. 20. The court a qua evidently concluded that the testimony of the defendant and his witnesses was true and acted on same in rendering judgment. Our consideration of the facts and circumstances leads us to the same conviction, and we are further satisfied that the pleadings taken ,as a whole and’ the' evidence adduced justifies the redhibitory relief granted the defendant in the lower court. Blackner Rotary Pump vs. Rantz Engineering Co., 1 La. App. 290; Standard Motors Co., Inc., vs. Yellow Bayou Gin Co., 1 La. App. 424; Holcomb & Hoke Mfg. Co. vs. James Theodora, 1 La. App. 445; Crown Cork & Seal Co. vs. Grapico Bottling Works, 1 La. App. 638; Melancon vs. Robichaux, 17 La. 97; Farmer vs. Fisk, 9 Rob. 351; and Templeman Bros. Lumber Co. vs. Fairbanks, Morse & Co., 129 La. 983, 57 South. 309. In this last case the court on rehearing, pages 1004 and 1005, released a defendant from paying the balance of a note.

The prescription of one year pleaded by plaintiff under the law, C. C. Art. 2534, has no bearing to limit the action of a defendant acting in defense when- he is sued. 1 N. S. 468; Lastrapes vs. Rocquet, 23 La. Ann. 68, and Holcomb & Hoke Mfg. Co. vs. James Theodora, 1 La. App. 445. The judgment appealed from appears to us to do justice.

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


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit
    McCAHILL v. WOOD
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Surveyors and Surveys — Par. 4.

    When the old corners’ and lines made for a previous survey cannot be found, the lines must be re-established by a surveyor and Revised Statutes Article 3745 does not apply.
    2. Louisiana Digest — Prescription — Par. 13, 20, 22, 34, 42.
    When a party claims land by title and does not claim beyond his title, then his possession as owner is limited by his title and pleas of prescription of ten, twenty and thirty years are not applicable to that part erroneously possessed by him but- not covered by the title.
    Appeal from the Twenty-first Judicial District, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by William McCahill, et al., against Hayden Wood, et al.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed.
    A. Sidney Burns, of Ponchatoula, attorney for plaintiffs, appellees.
    Warren W. Cornish, A. L.’ Ponder, of Amite, attorneys for defendants, appellants.
   ELLIOTT, J.

The plaintiffs brought suit to establish the original line separating headright 40 from headright 41, T. 7 S., R. 7 E., alleging that the line had become obliterated and was the boundary between the estates of the plaintiffs and defendants. Defendants contend that there is an established line between them and the plaintiffs and they claim ownership up to the line which they allege exists and plead the prescriptions of ten, twenty and thirty years- in support o'f their ownership up to the existing' line.

William McCahill and Winfield McCahill are the owners and possessors of land in headright 40, while Hayden Wood and Frederick W. Kanel own the land adjoining them on the south in headright 41, T. 7 S., R. 7 E. The line separating headright 40 from headright 41, established by R. C. Brent, government surveyor in 1846, has been obliterated for many years, except here and there marks of the old line still exist; but these marks are mostly west of the holdings of the plaintiffs and defendants. The true southwest corner of headright 40 has not been known for a long time. The physical marks showing it were destroyed many years ago. The line between the southwest corner of headright 40 and the southeast corner of the headright is straight, but the location of the corners not being known caused the line between them to be a matter of dispute. C. M. Moore, C. E., was appointed by the court to locate the line. The defendants contest his location as being incorrect. His survey was approved and homologated by the lower court and the defendants appealed.

It appears from the testimony of Mr. Moore that he did not encounter any serious difficulty except in the work of locating the southwest corner of head-right 40. In locating this comer of the headright he prolonged the west line of the headright beyond the length stated in the field notes of the’ governrifent surveyor for 60 feet or about one chain. He explains that it was necessary to do so and thinks that the chain carriers for the government surveyor failed to call out a chain, because all' the. nearby, accessible, recognized and accepted government corners and points of departure require the length as well as the courses and to place the corner at the distance from the northwest corner which the field notes require would be in conflict with the courses, proved comers and points of departure in the same headright as • well as the adjoining headrights in the same township and range. The findings of the surveyor appear to be prove.d by the usual tests resorted to in such matters, and there is no evidence which indicates that his work is incorrect. A previous survey made by the parish surveyor supports in a general way the Moore survey. The line run by the parish surveyor and that run by Moore are not together, still they are near enough together to corroborate each other in showing that the western line of the headright must be projected further south than as stated in the field notes of the government survey. The Moore survey was subjected to. tests explained by him while the survey made by the parish surveyor was not, so far as we know, subjected to any tests. The parish surveyor was not called as a witness, consequently it is likely that it was known that he would corroborate Mr. Moore in his findings. The Moore survey was ma.de by order of the court and for the purpose of relocating the line in question. The provisions of the Revised Statutes, Sec. 3745, must be followed when the old corners and lines can be found; but when, as in this case, they are gone and must be re-established without the aid of the old markings, then the work depends on the fidelity and capacity of the surveyor.

The testimony of another surveyor was taken, but he did not make a re-survey of the locality, nor attempt to re-establish the southwest corner of headright 40 by the tests which Moore applied; he rather sought to show that the line separating headrights 40 and 41, as re-established by Moore, conflicted with the claims of defendants, up to a certain fence, etc. Mr. Moore testifies that to the .best of his knowledge and ability he has re-located the line between the two headrights correctly and the • trial judge was satisfied with his return, and we are likewise satisfied that his survey should be approved. We .do not think that a new survey would be more satisfactory than the work done by Mr. Moore.

Defendants’ titles call for land in head-right 41. It is true, there is a call for a fence; and that fence was, in fact, on headright 40; but it was supposed to be in headright 41. The evidence shows that the parties all claim by titles and by virtue of titles, defendants’ pleas of prescription notwithstanding. The defendants vrere rot aware that the fences which they mention in their answers were in headright 40; they supposed that they were in headright 41 and nobody intended to claim beyond his title. In such a case the prescriptions of ten years, twenty years and thirty years pleaded by defendants have no application. In Williams vs. Bernstein, 51 La. Ann. 116, 25 South. 411, the Supreme Court said: “The mere fact that parties owning adjoining properties have cultivated land up to a certain line, or up to a certain fence, built by one or both or built by one and repaired by the other, does not per se evidence an adverse possession or an acquiescence in knowledge of or recognition of an adverse ownership or possession. Neighbors constantly run up fences within or beyond the boundary lines or join fences, doing so with the knowledge and understanding that such acts are merely temporary and done subsidiarily to and with reference to the right of both to ultimately ascertain and fix rights by an action of boundary or through a formal legal survey. Until this happens, such land is held in “occupancy” and not in “adverse possession” — certainly in the absence of a clear and direct claim advanced of adverse ownership and possession.

The cases, Banta vs. McSpadden, 147 La. 847, 86 South. 287; Administrators of Tulane Educational Fund vs. Stair, 148 La. 11, 86 South. 595; Houston Ice & Brewing Co. vs. Murray Oil Co., 149 La. 228, 88 South. 802, cited in plaintiffs’ brief, have been examined and are applicable to the present case. And when a party claims land by title and does not claim beyond his title, then his possession as owner ’ is limited by his title. See Laurent vs. Laurent, 146 La. 939, 84 South. 212, cited in plaintiff’s’ brief, and 1 N. S. 456; 3 N. S. 22; Gaude vs. Williams, 47 La. Ann. 1325, 17 South. 844; Vicksburg, S. & Pac. Ry. Co. vs. Le Rosen, 52 La. Ann. 192, 26 South. 854; Sibley vs. Pierson, 125 La. 478, 51 South. 502; Harang vs. Golden Ranch Land & Drainage Co., 143 La. 982, 79 South. 768; McHugh vs. Albert Hanson Lumber Co., 145 La. 421, 82 South. 392; Opdenwyer vs. Brown, 155 La. 617, 99 South. 482. The case, Opdenwyer vs. Brown, 155 La. 617, 99 South. 482, does not approve of a part of the opinion in the case, Vicksburg, S. & Pac. Ry. Co. vs. Le Rosen, 52 La. Ann. 192, 26 South. 854, but there is no objection to it when applied as above stated.

The judgment appealed from is correct.

Judgment affirmed.

Defendants and appellants to pay the cost of the appeal. The costs of the lower court and the fees taxed to be paid all as fixed in the lower court.


author: RIGHTOR, J.

text:
    No. 9285
    Orleans
    UNITED CHEMICAL COMPANY v. GULF STATES STEAMSHIP COMPANY, ET AL.
    (June 7, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Partnership—Par. 83, 85l
    A creditor of a partnership cannot make one who has been held out as a partner, and is not a partner, liable for partnership debts unless it is- shown that the creditor at least had knowledge of the holding out.
    Appeal from Civil District Court, Division “F”, 143,811. Hon. Percy Saint, Judge.
    Action by United Chemical Company against Gulf States Steamship Company, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dart, Kernan & Dart and L. C. Guidry, attorneys for plaintiff, appellant.
    M. M.‘ Boatner, M. H. Manion and H. W. Kaiser, attorneys for defendant, appellee.
   RIGHTOR, J.

Suit is brought for an undisputed indebtedness against a commercial partnership and three alleged members thereof. Against the firm and two of the alleged members, who did not deny their membership in the firm, judgment went by default. The third admits his employment by, but denies his membership in, the firm.

No proof is adduced of an agreement by this defendant, of such a character that would constitute defendant in law a partner of the firm. To the contrary, the defendant and one other member of the firm, both of whom took the stand, deny that defendant was ever considered as or agreed to become a member of the firm.

The only other why in law in which an individual can be held responsible for the debts of a partnership, as a member thereof, is when it is shown that such individual held himself out as a member of the firm. Estoppel then makes him liable for the firm’s debt to .anyone to whom the indebtedness was incurred by the firm due to such holding out.

Whilst there is conflicting testimony on the question of whether or not the defendant held himself out to others as a member of'the firm, the record does not disclose that defendant so held himself out as a partner to the plaintiff and the judgment for defendant is therefore affirmed.


author: CLAIBORNE, J.

text:
    No. 9311
    Orleans
    DEMOURELLE v. VASQUEZ
    (May 10, 1926. Opinion and Decree.)
    (May 24, 1926. Rehearing Refused.)
    (June 30, 1926. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Builders and Buildings — Par. 29; Mechanic’s Privileges— Par. 45.
    Parties who have not complied with Act 262 oü 1916 cannot claim the benefit of its provisions.
    2. Louisiana Digest — Builders and Buildings — Par. 5, 29; Mechanic’s Privileges —Par. 45.
    Act 229 of 1916 applies to building contracts where the owner has not complied with Act 262 of 1916.
    3. Louisiana Digest — Builders and Buildings — Par. 5, 19; Mechanic’s Privileges —Par. 19, 46.
    Owners who have not complied with Act 262 of 1916 by recording contract and furnishing bond are liable as sureties to materialmen and laborers.

      4. Louisiana Digest — Mechanic's Privileges —Par. 23.
    Under Sections 2 and 3 of Act 229 of 1916 material men who have recorded their claim within 45 days of acceptance of building have a privilege upon the building and land.
    Appeal from the Civil District Court, Division “E”. Hon. Wm. E. Byrnes, Judge.
    Action by James Demourelle against Emanuel B. Vasquez.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Emile Pomes, of New Orleans, attorney for plaintiff, appellee.
    Charles Louque, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a suit by a material man against the contractor and the owner.

The plaintiff alleged that on March 29, 1920, the defendant, Kate Wiehterick, owner, contracted with the defendant, Vasquez, contractor, to build a two-story residence at 135 Olympia street; that said contract was recorded on April 1, 1920, after the building had commenced; that on April 14, 1920, Kate Wiehterick recorded in the mortgage office the following bond:

“And here in these presents intervened George P. Platt, who declared that he has taken full cognizance of the foregoing contract between Emanuel B. Vasquez, contractor, and Miss Kate Wiehterick, owner, signed March 29, 1920, and he does hereby bind himself as surety for said contractor in the full sum of $4000.00 in favor of said owner, for the true and faithful performance of said contract.
(Signed) “E. B. VASQUEZ.
“MISS KATE WICHTERICK.
“This done and passed in my office in New Orleans, La., in the presence of Charles Louque and -, competent witnesses, who signed with appearers this 7th day of April, 1920.
(Signed) “E. B. VASQUEZ.
“MISS KATE WICHTERICK.
“CHARLES LOUQUE.
“GEORGE P. PLATT.”

That said bond was recorded in the mortgage office on April 14, 1920; that plaintiff sold and delivered to Emanuel Vasquez materials which were used in the construction of the building, No. 136 Olympia street, to the amount of $651.94; that said building has been delivered to Kate Wiehterick, who is occupying the same, though no acceptance of it has been recorded in the mortgage office; that on August 26, 1920, plaintiff recorded his claim in the mortgage office and served on Vasquez and Kate Wiehterick a copy of said claim; that the bond is made in favor of the owner only, and not in favor of the furnisher of materials and is not such a bond as the law requires; that the bond was given on April 7 and recorded on April 14, 1920, while the work on the building had commenced on April 5 or 6; that the failure of the owner to record the contract before the work was commenced, and to obtain a bond such as the law requires and to file the same before the work is commenced makes the owner, Kate Wiehterick, liable to plaintiff for the amount of the materials furnished by plaintiff.

Plaintiff prayed for judgment against the contractor and the owner in solido with privilege on the building and land.

For answer, the defendant admitted that the building contract was made on March 29, 1920; that it was recorded April 1 and the bond was recorded on April 14, 1920, both within the thirty days provided by the Act of 1916; that the bond was in favor of- the owner; that there was no time fixed for the completion of the building; that there was no recordation in the mortgage office of any acceptance of the building; that by the terms of the Act of 1916 the bill of the furnishers of materials became due within' ninety days of the execution of the contract; that plaintiff’s bill thus became due on July 1, 1920, and plaintiff was allowed an additional forty-five days to record his privilege; that thus the time within which plaintiff could exercise his rights expired on August 15, 1920; that plaintiff registered his claim only on August 29, which was fourteen days too late; and defendant pleaded the prescription of forty-five days against plaintiff’s claim for a privilege; defendant further denied the correctness of plaintiff’s bill and that the prices charged were exorbitant; she admitted that she occupied the property by agreement with Vasquez, but that no acceptance had been made because the building was never completed according to contract; defendant denied all the other allegations of the petition.

There was judgment in favor of plaintiff against both defendants in solido for the amount claimed, $651.94.

Defendant, Kate Wichterick, has appealed.

The opinion of this court in Clark vs. Petivan, No. 9257, decided March 15, 1926, controls this case.

In that case we decided that the parties who had not complied with the requirements of Act 229 of 1916 could not avail themselves of its provisions but were relegated to Act 229 of 1916.

By the second last paragraph of Act 262 of 1916, p. 538, it is provided .that “if' the owner fails to. exact bond, or. if he fails, to cause same .to be recorded in the office of the recorder of mortgages in the manner or in the time ’ hereinabove provided, the owner shall be in default and shall be liable to the same extent as the surety would have been”. In other words, the owner by failing to require security of the contractor, himself assumes the responsibilities of a surety.

The evidence in the casé shows that the contract was recorded after the work had commenced and so was the alleged bond.

The bond itself was deficient in being made in favor of the owner alone and not in favor of the materialmen and others as required by' law. It was therefore tantamount to no bond at all. Such were the decisions of the Supreme Court in Salmen vs. Lesassier, 106 La. 389, 31 South. 7; Hughes vs. Smith, 114 La. 298, 38 South. 175; affirmed in Lhote vs. Dugue, 115 La. 669, 39 South. 803.

We must therefore decide that ' there was no bond in this case, and that none of the other formalities required by Act 262 were complied with, and that, therefore, the defendant owner is liable as a surety.

The plaintiff is also entitled to a privilege upon the building and upon the land. He recorded his claim in the mortgage office in the manner required by Act 229 of 1916, Sec. 2 and 3; prior to the acceptance of the building by the owner. The answer alleges and the testimony establishes that the building was neither completed nor accepted. Plaintiff therefore recorded his claim in time.

The correctness of the bill as to materials delivered and the price of same is fully established.

The judgment is therefore affirmed.


text:
    No. -
    First Circuit
    BALDWIN v. McCAIN
    (June 5, 1926. Opinion and Decree.)
    (June 26, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Chattel Mortgages— Par. 4; Sales — Par. 311.
    The vendor’s privilege on an engine secured by a chattel mortgage recorded in another parish becomes extinct when the property to which this engine had been attached and become an immovable by destination was sold to a third person.
    Appeal from the Thirteenth Judicial District,' Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by A. Baldwin & Company, Ltd., against Walton McCain. Opelousas-St. Landry Bank & Trust Company, intervenor.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Sandoz & Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellee.
   ELLIOTT, J.

Action by the vendor of an engine, against the present owner of the engine, to have the vendor’s privilege recognized for the balance due on the purchase price. The present owner of the engine purchased the plantation from the original purchaser of the engine after the engine had been made immovable thereon by destination. He then sold the plantation. He then afterwards assumed the balance due on the engine and then afterwards re-acquired the plantation with the engine thereon as part of the immovable.

A. Baldwin & Co., Ltd., brought suit against Walton McCain on a note for $3514.61 and to have recognized the vendor’s privilege on an engine, to the extent of the balance due thereon amounting to $1167.29.

The plaintiff alleges that it sold the engine to one W. R. Tilton. That the balance due on the engine by Tilton was included in the note sued on. That said McCain by assuming the balance due on the purchase price kept the. vendor’s privilege on the engine in existence and that when said McCain reacquired the ownership of the same the privilege attached. The prayer is that the vendor’s privilege on the engine be recognized and enforced in the manner and form prescribed by law.

Defendant’s answer admits that the note sued on includes the sum of $1167.29 left unpaid on the engine by Tilton, but alleges that Tilton, after buying the engine, installed it in the (irrigation plant on his rice plantation, making it immovable by destination. That Tilton then sold and delivered the plantation to defendant with .the engine thereon as part of the immovable. That under the law, when Til-ton parted with his possession of the engine the privilege which then existed on the engine in favor of the plaintiff ceased to exist. Defendant denies that a privilege exists on the engine in plaintiff’s favor.

Opelousas-St. Landry Bank & Trust Co., intervenors, join defendant in resisting plaintiff’s demand for privilege. Intervenor alleges that it is the owner and holder of a certain promissory note secured by special mortgage on said plantation amounting to $16,960.00. That its security will be impaired and diminished by the recognition of the privilege claimed by the plaintiff. That its said mortgage bears on said engine as part of the immovable. That Tilton sold and delivered the plantation to McCain. That McCain sold and delivered same to O. L. & H. B. Redlich and Gus A. Baillio and they retroceded same to McCain, who then granted thereon said mortgage of which intervenor is the owner and holder. That the vendor’s privilege which existed on the engine while it belonged to Tilton ceased to exist when Tilton sold and delivered the property to McCain. That the assumption of the balance due on the engine by McCain, after he had sold and delivered the property to Redlich, etc., did not keep the privilege in existence; that no privilege exists on the engine in favor of the plaintiff. The district judge, for written reasons, refused to recognize plaintiff’s demand for privilege. Plaintiff appealed.

On April 17, 1918, Walter McCain and W. V. Norman sold and delivered to W. R. Tilton a rice plantation situated in the Parish of Acadia. On or about July 15, 1918, A. Baldwin & Co., Ltd., sold and delivered to W. R. Tilton an 85 H. P. Muncie left-hand crude oil engine with fittings, fixtures, air starter, air tank and air compressor complete. Tilton executed his note for $3185.27 secured by a chattel mortgage on the engine and its equipment to cover the credit part of the price, but the act of mortgage was never recorded in the Parish of Acadia. Tilton installed the engine in the irrigation plant on his rice plantation for its service and improvement. It can be unscrewed from its foundation, but we are satisfied that the engine was made immovable on the plantation by destination. Tilton made payment on the engine reducing the amount to $1167.29, which is still due and has never been paid. On October 18, 1919, Tilton sold the plantation to Walton McCain. The engine is not mentioned in the act of sale, but the general description, “the following described tract of land, together with all the buildings and improvements thereon and appurtenances thereunto belonging”, followed by a description of the land, covers the engine, made immovable thereon by destination. On December 12, 1919, McCain sold and delivered the plantation to O. L. & H. B. Redlich and G. A. Baillio, and on April 9, 1921, they re-troeeded the plantation to McCain and McCain on the same day granted a mortgage on it in favor of St. Landry Bank & Trust Co. for $16,960.00, now held by intervenor, all as alleged in the pleadings. Plaintiff moved on the trial to have the privilege which it claims taken as confessed by defendant and intervenor, but the lower court refused to grant the motion and we think the ruling was correct. The existence of the privilege claimed by plaintiff does not follow as a legal consequence of the facts admitted by defendant and intervenor. According to their averments plaintiff has no privilege. Plaintiff subsequently urged an estoppel by record against defendant and an exception of no cause of action against intervenor based substantially on the same admissions. These exceptions were also overruled and we think properly for the same reason that the privilege was not confessed.

The plaintiff in its answer to the intervention urged an estoppel in pais against intervenor, based on statements which an officer of the intervening bank is alleged to have made to plaintiff to the effect that the bank did not claim to have an interest in the engihe. The lower court does not merition this plea in the reasons for judgment. .The plaintiff urges this plea in its brief, but it does not seem possible that intervenor’s mortgage rights could be defeated by such a statement, even if it had been made, unless it was in fact true. Plaintiff does not aver that its privilege was impaired by the statement, or that it was thereby induced to pursue a course to the detriment of its rights, which it would not have pursued if the statement had not been made. Therefore, if the statement was made, there would be no estoppel in pais. In such a situation there was no question before the court except as to the existence of the privilege. The court properly heard plaintiff and defendant concerning the matter alleged, not that intervenor was estopped, but whether or not the vendor’s privilege claimed by plaintiff existed.

On June 7, 1920, Walton McCain called on A. Baldwin & Co., Ltd., in New Orleans and asked the plaintiff to accept his note for the purpose of closing his account and to include in it the balance due by Tilton on the purchase price of this engine. The plaintiff consented and the note sued on was executed, the defendant thereby assuming said indebtedness on the engine and promising to pay it to the plaintiff. At that time the plantation with the engine on it was in the possession of Redlich, etc., by title from McCain. The plaintiff contends that although McCain was not in possession of the engine at the time of the said assumption, that as he had bought the engine from Tilton and then sold it to Redlich, etc., and that as he had then, after selling the property to Redlich, assumed the balance due on the engine by Tilton and obligated himself to pay it to the plaintiff, that when McCain subsequently reacquired the plantation with the engine on it from Redlich, etc., by act of retrocession, that the vendor’s privilege instantly attached to the engine just as if he had expressly assumed it in the act of purchase from Tilton. Plaintiff’s position in the matter is very strong for the reason that we are satisfied that McCain knew at the time he bought from Tilton that Tilton owed plaintiff on the engine. The act of sale does not say so, and makes no mention of the balance due plaintiff on the engine, but defendants voluntary assumption of the amount on June 7, 1920, indicates it so strongly that we think the presumption established; but in the absence of an express assumption of the privilege oh the part of defendant, the fact that he was aware at the time of buying that Tilton had not finished paying for the engine did not suffice to keep the privilege in existence.

The cases of Powers vs. Hubbell, 12 La. Ann. 403, and De l’Isle vs. Moss, 34 La. Ann. 164, support the existence of the privilege in such a situation, but these decisions are against the law on the subject and appear to have been overruled by later cases and to be inconsistent with an earlier case. According *to the law, C. C. Arts. 3217, No. 7; 3287 and 3263, the privilege ceased to exist when Tilton sold and delivered the property to McCain.

In Hays vs. Crockett, 7 La. Ann. 645, the court held:

“It is contended that the purchase was a fraud upon the vendor, having been made with knowledge of his rights out of the usual course of business, to the injury of plaintiff. It is evident that Maddox knew of the embarrassment of the firm of Crockett, Frost & Co. He perhaps knew that they were insolvent and it is not improbable that he knew that the plaintiffs were their creditors, but it is by no means certain that he was acquainted with the nature of their privilege.”

In Dreyfous vs. Cade, 138 La. 297, 70 South. 231, the court went further. The syllabus reads in part:

“The purchaser of movable property oh credit may sell it to a third party who knows that he has not paid the, price and the original vendor loses his privilege therefor when the property passes out of the possession of his purchaser and into the possession of a third person.”

In Pierson vs. Carmouche, Max Barnett, etc., Opponent, 146 La. 798, 84 South. 59, the court held:

“A purchaser on credit of movable property may Validly give .it in pledge to a third person who knows that he has hot paid the price, but is otherwise in good faith, so as to vest in the pledgee a right superior to that of the vendor whose privilege thereupon ceases by reason of the property having passed out of the possession of the vendee.”

In Boylans, etc., vs. Brown, etc., 157 La. 325, 102 South. 417, p. 332, the court says:

“No consideration of equity can enter into the determination of the right of privilege. If the law does not grant the privilege the court is powerless to do so. The rule is too familiar to need citation of authority that privileges are never allowed, except when, expressly granted and only by virtue of compliance, with legal requirements, essential to their creation and ex-, istence. They can not be extended by analogy or implication.
“The privileges and mortgages of the former credit are not transferred to that which is substituted for it unless the creditor has expressly reserved them. C. C. Art. 2195.
“When novation takes place by the substitution of a new debtor," the original privileges and mortgages of the credit can not be transferred to the property of the new debtor. C. C. Art. 2196.”

A privilege under the law does not remain in abeyance like a mortgage (C. C. Art. 3304) or pledge (C. C. Art. 3144) if the debtor is not the owner of the property at the time of the contract, but subsequently attaches if he becomes the owner, but ceases instantly and finally when the vendee parts with his possession as owner. The chattel mort'gáge reserved by A. Baldwin & Co., Ltd., and granted by Tilton, not having been recorded in the parish of Acadia, ‘and Walton McCain not having expressly assumed the existin'g privilege in plaintiff’s favor in buying the property from Tilton, it ceased to exist as a matter of law, the stipulations and agreements between Tilton and A. Baldwin & Co., Ltd., in the act Of chattel mortgage, notwithstanding plaintiff’s privilege was lost and had no existence after Tilton sold and delivered the property to McCain on October 18, 1919. When McCain sold and delivered the property to C. L. & H. B. Redlich and G. A. Baillio, December 12, 1919, the vendor’s privilege which had existed on it while it belonged to Tilton was extinct. It was therefore extinct and without existence as a matter of law on June 7, 1920, when McCain assumed the balance due on the engine by Tilton to A. Baldwin & Co., Ltd., and had no existence and could not attach, on April 9, 1921, when McCaih reacquired the property from Redllch, etc. Intervenor urges in its brief that when McCain assumed the balance due on the purchase price of the engine that Tilton’s debt was to that extent extinguished and that the privilege was extingúished with the debt. If the debt was extinguished then the privilege was extinguished as a matter of course. C. C. Art. 3277. But intervenor’s petition does no allege that Tilton’s debt on the engine was extinguished and the evidence does not satisfactorily establish such a novation. The opinion and decree of the lower court is not based on that ground. We, therefore; do not pass on this contention of the intervenor, but the judgment appealed from is correct and will be affirmed for the reasons assigned.

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


text:
    No. 4307
    First Circuit
    BARBER v. THOMAS
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 145.
    Under Article 2402 of the Civil Code, a purchase in which the wife authorized by her husband to purchase, states in the act that the purchase is for herself, her heirs and assigns is nevertheless a purchase for the community property.
    2. Louisiana Digest — Evidence—Par. 220.
    Under Article 2276 of the Civil Code, evidence is inadmissible to show a secret equity in property to the detriment of one who had purchased the property in good faith and had possessed it as owner.
    Appeal from the Twenty-second Judicial District Court of Washington, Hon. Prentiss B. Carter, Judge.
    Action by Josephine Barber against Samuel Thomas. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ott and Johnson, of Franklinton, attorneys for plaintiff, appellant.
    Brock and Carter, of Franklinton, attorneys for defendant, appellee.
   ELLIOTT, J.

Petitory action to recover 80 acres of land on the ground that the act, whereby the land was acquired, although in form a community purchase of a tract containing 240 acres more or less, was in fact a community purchase to the extent of 160 acres, while the other 80 acres, described in the petition, was in fact a donation to the plaintiff and was at the time of said acquisition her separate and paraphernal property.

The 80 acres claimed in the suit being in the possession of the defendant, as owner under chain of title duly recorded, acquired in good faith, based on the public records, without notice of plaintiff’s claim and more than ten years previous to the institution of her suit.

Mrs. Josephine Barber, widow of James Barber, sues to recover of Samuel Thomas 80 acres of land described in her petition in the possession of said Thomas as owner, by title chain, deraigned from C. A. Jenkins, duly recorded in the conveyance records on or about the day it was passed. The) plaintiff alleges that she acquired the land by title from her father, O. P. Thomas, on January 16, 1895, by title duly recorded at the time. That said property was at the date of her acquisition her own separate and paraphernal property and has remained so to the time of her suit.

The defendant pleads in bar of her action the prescription of ten years acquirendi causa, under the law, C. C., Art. 3478, etc., and under reserve of his exception, filed an answer setting up his title and possession, deraigned through mesne conveyance from C. A. Jenkins on November 30, 1910, and that of C. A. Jenkins acquired at sheriff’s sale in the execution of a judgment against James Barber, plaintiff’s husband, on the 18th of June, 1910, by title duly recorded 6n or about the time it was executed.

The district judge decided in favor of defendant sustaining his title and plaintiff appealed.

The title adduced by the plaintiff from O. P. Thomas is in authentic form and calls for a tract of land containing 240 acres more or less and is on its face a sale for the price and sum of $500.00 cash.

The title for the entire tract, is in the name of- the plaintiff, hut her husband, James Barber, was living at the time and was a party to the act, authorizing her to purchase, the act states that the purchase, is- for herself, her heirs and assigns, but under the law C. C., Art. 2402 the title was a community purchase.

The entire 240 acres was seized by the sheriff of Washington parish as the property of James Barber in the execution of a judgment against him rendered in a suit entitled Jenkins & Duncan, C. A. Jenkins, Subrogee vs. James Barber and on the 18th of June, 1910, was sold and delivered to C. A. Jenkins. The title to Jenkins was placed on record November 30, 1910, in the conveyance records of Washington parish. C. A. Jenkins sold the land to Spears, and from Spears through various sales it passed to the. defendant, all titles being duly recorded on or about the day they were passed. The plaintiff offered in evidence the title in her favor from O. P. Thomas and then offered parol evidence to establish against defendant, that although said title from O. P. Thomas to herself, purports to be a sale of 240 acres of land more or less for the price and sum of $500.00 dollars cash, that in fact only 160 acres of the tract was purchased and acquired by the legal community which existed at the time between her and her husband.

That the 80 acres described in her petition, was a donation to her • by her father O. P. Thomas and was not purchased and was in fact her separate and paraphernal prbperty under the title from her father.

The defendant objected to parol evidence offered for the purpose of showing the fact alleged, which would have the effect of changing and altering • the title executed by O. P. Thomas and was sustained by the court, C. C., Art. 2276. The defendant then offered, in evidence his title and the registry of the same deraigned from Jenkins and established that all these various transfers had been accompanied by actual .possession as owners in goqd faith and without knowledge of the secret equity set up by the plaintiff.

Plaintiff’s claim, no matter if it be in fact true, can not prevail against the rights of third persons buying on the faith of .the recorded title and without knowledge of the equity existing in the plaintiff. The ■evidence would change the act from O. P. Thomas from a sale of a tract of land for $500.00 to a sale of part of the tract for $500.00 and to a donation of the balance of the same tract, and make the donated part the separate and paraphernal property of the plaintiff. Such a thing can not be done, when the effect would be to deprive third persons buying on the fact of the recorded title of their property. Jenkins vs. Salmen Brick & Lumber Co., 120 La. 549, 45 South. 435; Bank of Napoleonville vs. Knobloch & Rainold, 144 La. 100, 80 South. 214; Succession of Rouse, 144 La. 143, 80 South. 229; South Arkansas Lumber Co. vs. Tremont Lumber Company, 146 La. 61, 83 South. 378; Lockwood Oil Co. vs. Atkins, 158 La. 610, 104 South. 386; cited in defendant’s brief, and others, the rule is too well settled to admit of doubt.

The authorities by plaintiff would govern if plaintiff had brought suit against' Jenkins to rectify the error in her title; if such existed, before the property was sold by the sheriff and had made her father and husband parties to the suit, but they can not be recognized as authorizing the undoing of the title from O. P. Thomas, to the prejudice of defendant in the way attempted by the plaintiff.

The judgment appealed from is correct. Judgment affirmed.

Plaintiff and appellant - to pay the cost in both courts. " '


text:
    No. -
    First Circuit
    OTT v. DYKES
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 302, 325, 516.
    Under Act 112 of 1916 the Court of Appeal is not warranted in considering a case for which an appeal bond was made for an appeal to the Supreme Court.
    2. Louisiana Digest — Appeal—Par. 510,518.
    The appellate jurisdiction ratione materia should appear on the face of the record. Therefore an ejectment proceeding which does not show the amount in controversy will be dismissed by the appellate court for want of jurisdiction.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Magee W. Ott against A. M. Dykes.
    There was judgment for plaintiff and defendant appealed.
    Case dismissed for want of jurisdiction.
    Reid & Blache, of Amite, attorneys for plaintiff and appellee.
    Ellis & Ellis, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit in ejectment under Revised Statutes, Sec. 2155 (amended by Act 49 of 1918), defendant justifying his refusal to vacate under an option from plaintiff’s author as to 13-14th interest in the property, who had agreed' to-buy out ' all the interests in the property and then 'sell it to defendant, less the timber.

Magee W. Ott instituted an ejectment suit against A. M. Dykes under Revised Statutes, Section 2155 (amended by Act 49 of 1918). Defendant for answer to the rule admits that the plaintiff is the apparent title owner, but he alleges that he has possession and the right to retain it under and by virtue of an option executed by A. O. Ott. That A. O. Ott, the owner of some of the interests, bound himself to acquire all the interests and then sell the property to defendant. Other defensive matters are alleged but we do not think it worth while to enumerate them, because of the conclusion at which we have arrived on the question of jurisdiction. The defendant further alleges the pendency of another suit between Magee W. Ott and A. O. Ott on one .side, in which they are the defendant, and the present defendant on the other side as the plaintiff, involving the validity of the option in question and the rights of the parties in and to the land. That this other suit was dismissed in the lower court on an exception of no cause of action and is pending on appeal in the Supreme Court. This record is annexed to defendant’s answer .and was offered in evidence; • the record mentioned has no bearing on the question of our jurisdiction in the present appeal. Defendant prays that the rule issued herein be discharged, that plaintiff’s demand be referred to the other suit and prays for judgment in reconvention against the plaintiff for $250.00 on account of mental harassment, worry and attorney’s fees.

The district judge rendered judgment in the present suit making the rule absolute, giving defendant twenty-four hours in which to depart from the property and authorizing, in case of failure to do so, the issuance of a writ of ejectment aa prayed for by the plaintiff. Defendant moved for an appeal to this court and. the order was granted. The bond was fixed at $1500.00 for a suspensive appeal and at $100.00 for a devolutive appeal. Bond for $1500.00 was given and the appeal lodged in this court and has been argued and submitted; but it doe>s not appear that we have jurisdiction. The appeal bond is for an appeal to the Supreme Court. The Act 112 of 1916 goes far toward saving appeals and the remedy by appeal is favored and will rather be entertained than denied; but it does not seem possible that a bond for an appeal to the Supreme Court can operate to sustain an appeal to this court. It furthermore does not appear that we have jurisdiction ratione materia. The suit is based on the law of “Landlord and Tenant”, Revised Statutes, Sec. 2155 (amended by Act 49 of 1918); but there is no claim on account of rent. The only purpose of the suit on the part of the plaintiff is to eject the defendant. The possession which the plaintiff moves to recover is not valued in his petition. If there was a demand for rent, or if such was involved in the suit, then the amount due as provided in Revised Statutes, Sec. 2156, would fix the appellate jurisdiction. See Lauga vs. Baradet, 127 La. 542, 53 South. 856; but, as already stated, the question of rent is not involved in the case. The demand of the defendant for $250.00 for damages in reconvention on account of mental harassment, worry and attorney’s fees does not vest this court with jurisdiction. ' The demand in reconvention is governed in the matter of jurisdiction by the main demand. Constitution, Art. 7, Sec. 1. There is nothing in the record claimed by the plaintiff or by the defend-, ant from which we can do more than surmise concerning the value and worth of the possession in dispute. We have no jurisdiction in a situation like the present, except when the amount in dispute exceeds $100.00 in amount, exclusive of interest. Constitution, Art. 7, Secs. 29 and 35.

It is well settled that appellate jurisdiction ratione materia should appear on the face of the record. If it does not, then the court should, ex officio, dismiss the appeal. Shreveport Bridge & Terminal Co. vs. State Board of Appraisers, 125 La. 1005, 52 South. 129; Sennette vs. Police Jury of St. Mary Parish, 129 La. 728, 56 South. 653; Lafayette Realty Co. vs. Poer, 136 La. 472, 67 South. 335.

It is therefore ordered that this appeal be dismissed.

Appeal dismissed at the cost of the appellant.


author: MOUTON, J.

text:
    No. -
    First Circuit
    CHAPMAN v. ROSELAND VENEER AND PACKAGE COMPANY, LTD.
    (June 26, 1926, Opinion and Decree)

      (.Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 47.
    Under Article 529 of the Code of Practice no, replication or rejoinder is permitted under our practice.
    . 2. Louisiana Digest — Bills and Notes — Par. 201.
    Under Article 326 of the Code of Practice one who denies as a defense that the endorsement is genuine is barred from every other defense when that signature is proven genuine.
    Appeal from the parish of Tangipahoa, Hon. Columbus Reid, Judge.
    Action by Clarence A. Chapman against Roseland Veneer and Package Company, Ltd. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. S. Reid, of Amite, attorney for plaintiff, appellant.
    Purser and Magruder, of Amite, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff was in account with defendant company for the purchase of feedstuff, nails, etc., during several months. In his petition he alleges that defendant tendered him a check for $76.80 for an alleged balance due him on the account. He avers that he is charged by defendant with an account previously settled and with double charges for different items referred to in his petition. That by the addition of these improper charges to the amount, which he admits owing defendant, there results a total amount of $319.20 due petitioner by defendant.

The defendant filed an answer in which he avers that plaintiff had made payments on his account from time to time, and that on February 7, 1925, a balance was struck on the account, showing a balance of $76.80 in favor of plaintiff for which amount defendant gave a check to plaintiff, who cashed it; that it has paid plaintiff in full, and that defendant is in no way indebted to plaintiff in any amount. The court below rejected the demand. Plaintiff appeals.

When the settlement was made plaintiff first declined to accept the check for- $76.80, which defendant lad tendered him in payment for the balance which it admitted to owe him. McCraney, who drew the check for the defendant company, says plaintiff handed him back the check, claiming that there was some mistake in his account. McCraney says, he told plaintiff he would have to see Mr. Dyer; that he laid the check on Dyer’s desk, and plaintiff went out of the office. Dyer, it appears, had gone - to lunch and was then absent. Dyer says, when he came back, which he is inclined to believe was the same evening, he found the check where it was lying, that he handed it to plaintiff, and never saw it again until it came back in the statement from the bank. The plaintiff denies that he ever took the check back; that he ever endorsed it or cashed it. It is shown by the officers of the bank that the check was cashed. They could not, however, remember that it had been cashed by plaintiff. The check bears the name of C. A. Chapman as endorser. It is clearly shown by the officers of the bank that if the check had, endorsed as it was, been presented for collection by any other person, the person presenting it for payment would have had to also endorse it. The endorsement on the check shows that it bore only the endorsement of C. A. Chapman. It is shown by several witnesses that the signature on the back of the check was that: of Chapman, plaintiff. The check came back from the bank bearing the usual marks of cancellation. The court held that Chapman had endorsed the check and had collected it. The proof sustains this conclusion,; there is certainly no such error in this finding of fact by the court to justify us in interfering therewith.

The defendant in its answer ^alleges that in full payment of the balance due him, plaintiff had received the check and had cashed it. This was a new fact alleged on the part of defendant. Obviously, Chapman could not collect the check without endorsing or signing it. This fact stood denied by plaintiff as • no replication or rejoinder is permitted under our practice. C. P., Article 329. And it was found that the endorsement was the signature of plaintiff and as his signature had been denied by plaintiff, he was, by the law, barred from every other defense. C. P., 326. In Lumpkin vs. Reiser Machine Shops, 120 La. 598, 45 South. 518, the court said:

“The rule that a party who denies his signature to a document upon which he is being sued is cut off from every other defense applies equally in the case where the document is being urged by way of defense.”

Here the check was being used as a means of defense, the endorsement or signature to which was denied by plaintiff, having been proved to be his signature he was debarred from every other defense.

Judgment was therefore properly rendered against him rejecting his demand.


text:
    No. -
    First Circuit
    HENDERSON v. HAIK
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)'

    1. Louisiana Digest — Master and Servant —Par. 1, 2, 3.
    A contract of employment by which a stenographer agrees to work at a stipulated salary for a year and her em- , . ployer agrees to employ her during that time is a bilateral contract.
    2. Louisiana Digest — Master and Servant —Par. 20, 21; Obligations, Par. 4.
    The moment employee is discharged without cause his right to recover for salary for the unexpired term of his contract accrues immediately and this can be recovered regardless of what the employee has earned since then.
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.,
    Action by Della Henderson against A. Haik. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. J. Allen, of Amite, attorney for plaintiff, appellee.
    A. L. Ponder and L. L. Morgan, of Amite, and New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant for $705.00 for salary as clerk for a period of one year, beginning April 13, 1925, and ending April 13, 1926, with legal interest from date.

Judgment was rendered for plaintiff for the amount claimed. Defendant appeals.

Plaintiff contends she was employed by the year at $15.00 per week, that.she was discharged without cause, and claims the whole salary she would have been entitled to receive had she completed her full term of service.

Defendant admits plaintiff was employed at $15.00 per week; that she worked five weeks for which she was paid at the rate above stated, but denies that her employment was for a period of one year. This constitutes the sole contention between the parties, with the exception that defendant claims, in the alternative, that should the judgment go1 against him, he be credited, with the money plaintiff has earned in another employment in which she has been engaged since her discharge.

Plaintiff, when employed by defendant, was clerking for Pinkestein, another merchant. Miss Mae Henderson, sister of the plaintiff, was then working for defendant. She says that defendant called plaintiff in his store and told her, if she would quit Pinkestein and would come and work for him he would give her $15.00 a week for 12 months. She says plaintiff said “if you will do that, I will start to work for you next Monday morning”. Plaintiff testifies that defendant made her that offer, and that she promised to begin working for defendant on the following Monday. Miss Katherine Robertson, an aunt of the plaintiff, says that plaintiff being fearful that defendant would not keep to his promise, asked her to interview him in reference to the employment in question. She says that acting in compliance with the request of plaintiff she asked defendant if “he would stick to the'bargain you made with Della for twelve months’ work for fifteen dollars a week”; that he answered he would.

The proof shows that at the end of the fifth week defendant offered a check to plaintiff for $12.00, instead of fifteen, the weekly rate agreed upon; that plaintiff refused to accept the $12.00; that defendant ordered the issuance to her of a cheek of $15.00 which was accepted, and that defendant then discharged her from further service. Plaintiff testifies that she then told. defendant “you promised me a year’s work” and that he said “I know, but the crops failed”. Her sister, Miss Mae, says, she was present when plaintiff was. discharged; that she heard when her sister reminded defendant that he had employed her for a year’s work at $15.00 per week; that defendant admitted this . but; said, the crop has failed, and I can not afford to give you that any longer. . Two other witnesses testify practically to the same effect. There is some testimony conflicting with. the statements made by the witnesses above referred to, but the preponderance of. the evidence shows that plaintiff was employed by the year, and was discharged on account of the crop failure which was therefore without legal cause.

Counsel for defendant makes the point that the contract between the parties was unilateral, that under its terms plaintiff was not under any obligation to work for defendant during a period of one year, that she was a free lance enjoying the privilege of withdrawing from his service at any time, and that she can not therefore recover.

Counsel, in support of this contention, cites Article C. C., 1765, which reads as follows:

“To all contracts there must be at least two parties; one who does, or engage to do or not to do, another to whom an engagement is made. If the latter make no express agreement on his part, the contract is called unilateral, even in the cases when the law attaches certain obligations to his acceptance.”

The proof shows here that defendant said to plaintiff, if you will quit Pinkestein and come and work for me, I will give you $15.00 a week for twelve months, and that plaintiff replied, “if you will do that, I will start to work for you next Monday morning”. Clearly, when plaintiff said, “I will start to work next Monday morning”, she was making an express agree-ment to begin her services on that day as a clerk for defendant for a period of one year. ' It is impossible to construe her language otherwise when it' is considered, as, it must be, with the proposition of “defendant that he would pay her at the rate stated for that period. She was, on her part, making an express promise to serve defendant as a clerk for the salary offered her by him, and for twelve months. On the part of defendant there was also a reciprocal express agreement to remunerate plaintiff at the stipulated salary. The agreement therefore carried express mutual engagements, and was a bilateral and not a unilateral contract. It was actually carried into effect, as plaintiff entered into the services of defendant on the date agreed upon; worked as his clerk for five weeks, was paid at the stipulated weekly salary for that time and was finally discharged t without serious ground of complaint.

The proof shows that after her discharge plaintiff was employed in Bogalusa, as a clerk at $12.00 per month. The contention of defendant is if judgment is rendered against him, the earnings of plaintiff since her dismissal, should be applied to his credit. The moment an employee is discharged, without cause, his right to recover his salary for the unexpired term of his contract accrues immediately. The fact that he earned, or may have earned, money elsewhere during the unexpired term of his contract, has no bearing, under the textual provisions of our Code and the jurisprudence predicated thereon, upon the rights of the employee to recover. Camp vs. Baldwin-Melville Co., 123 La. 257, 48 South. 927; Shea vs. Schlatre, 1 Rob. 319; Sheets & Grover vs. Culver, 14 La. 449; Curtis vs. Lehmann & Co., 115 La. 40, 38 South. 887; Daspit vs. Holmes Co., 120 La. 86, 44 South. 993.

Defendant is therefore not entitled to any credit from any earnings of the plaintiff since she was dismissed from his service.


text:
    No. 3909
    First Circuit
    NEW ORLEANS & GREAT NORTHERN R. R. COMPANY v. LAWRENCE COUSIN
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1, Louisiana Digest — Carriers Of Passengers and Goods — Par. 113, 115.
    Act 120 of 1890 as amended by Act 172 of 1916 requires that notices given by a railroad company to consignee that a car shipped to him was held for demur-rage charges unless he paid the freight and received the shipment must be sent by registered mail.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 113, 115.
    If the railway company sells a consignment for the demurrage charges and freight but cannot prove the registered notice to consignee as required by Act 120 of 1890 as amended by Act 172 of 1916 the railway company will be liable for the damages sustained by the illegal sale and cannot recover for the demurrage charges.
    Appeal from the Twenty-sixth Judicial District, Parish of St. Tammany, Hon. P. B. Carter, Judge.
    Action by New Orleans & Great Northern Railroad Company against Lawrence Cousin. There was judgment for defendant and on defendant’s reconventional demand. Plaintiff appealed.
    Judgment for defendant reduced and affirmed.
    Miller and Miller, of Covington, attorneys for plaintiff, appellant.

      Middleton Kenner, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

Action to recover charges for freight carriage and demurrage.

New Orleans & Great Northern Railroad Company claims as charges for the carriage of a car of oak wood $27.19, shipped by Lawrence Cousin from Bayou Laeombe to New Orleans over the plaintiff railroad and $228.00 on account of demurrage.

The petition alleges that the car was refused by the consignee, the defendant duly notified that" it was held for demurrage and to call and pay the freight, etc. That defendant did not come and the wood was sold as the law provides in such matters and the proceeds applied to the freight, etc., after which there remains due $226.18 and for which the plaintiff claims judgment.

Defendant for answer admits that he received a telegram from the plaintiff, informing him that the consignee had declined to receive the shipment. He alleges that he went without delay to New Orleans and called at plaintiff’s freight office in order to pay the freight and get the wood, but that plaintiff’s clerks and representatives could not locate the car of wood nor deliver it to him. They pointed out a car which they said was the one in which defendant’s wood had been shipped but it was empty. He denies receiving notices, other than the telegram to which he responded; alleges that plaintiff had no right to sell the wood; that he owed nothing for demurrage. He claims that the wood was worth $120.00 and claims judgment for its value against the plaintiff.

The district judgei rejected plaintiff’s demand against the defendant and rendered judgment in favor of the defendant and against the plaintiff for $120.00 less the charges for transportation. The plaintiff appealed.

There is no dispute about the shipment, nor the receipt of the telegram notifying defendant that the consignee had declined to receive the car. It appears that defendant was physically unable to attend court and it was admitted that if he was present that he would testify that forthwith after the receipt of the telegram notifying him that the consignee had declined to accept the car, that he went to plaintiff’s freight office in New Orleans for the purpose of paying the freight and obtaining and disposing of the wood, but that plaintiff’s agents could not locate the car nor find the wood. That he was willing and anxious to pay the freight and went there for the purpose of paying whatever might be due on the shipment.

It was further admitted that another witness if sworn in would testify that he went with defendant to the depot and heard him ask plaintiff’s agents about the car, offer to pay the freight and that plaintiff’s clerks, etc., could not find the car, etc.

The plaintiff contends that defendant was notified that the car was held for demurrage and to come and pay the charges and produced and offered in evidence a number of copies of letters from the files of its office, which purport to have been written the defendant to that effect, but it does not appear that any of these letters were registered as required by the law Act 120 of 1890 (amd 172 of 1916) and defendant does not admit that he received the notices, etc. The notice required by law was not proved and in view of defendant’s denial we can not hold that it was given and there is no evidence indicating that defendant did not call at plaintiff’s .freight office for the purpose of paying the freight and would have paid it; but that plaintiff’s clerks and employees could not locate the car and de•liver the wood. As this was almost imme- ' diately following the arrival of the car in • New Orleans there was no demurrage due, and the plaintiff had no right under the law to sell the wood.

We agree with the district judge in his reasons for judgment, but the transportation charges was $25.15 and same deducted from the value of the wood ($120.00) leaves but $94.81. The judgment appealed from rejecting plaintiff’s demand against the defendant is affirmed. The judgment in favor of defendant in reconvention is reduced to $94.81 and as thus amended is affirmed.

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


text:
    No. -
    First Circuit
    HOOVER v. VINYARD
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Slander of Title-— Pard. 5.
    Those who fail to perform any act of possession for more than twenty years and permit the land to be sold for delinquent taxes, having acquiesced in the acts of others in having it assessed to them and offering no objection to their cutting the timber from the land, have not the requisite possession to enable them to maintain an action of slander of title.
    Appeal from, the Twenty-first Judicial District, Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    Action by Mrs. Lucy Hoover, nee Hano et al. against E. W. Vinyard. There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Rownd and Warner, of Hammond and H. P. McClendon, of Amite, attorneys for plaintiffs, appellants.
    W. W. Cornish, of Amite and A. S. Burns, of Ponchatoula, attorneys for defendant, appellant.
   ELLIOTT, J.

Action of slander and title in which the defendant alleges that he is the owner and possessor and denies that the plaintiffs have title and possession.

Lucy, Adeline and Katie Hoover nee Hano, Virginie Raiford nee Hano, Thomas, Alfred, James, Foster, Clifford, Marcus, J. M., Frank, B. and Howard Hano, children and heirs of John and Mary Hano, claim to have actual physical possession as owners in indivisión of the SE1^ of the SW% of Section 14, T. 7 S., R. 8. E., containing forty acres more or less, by inheritance from their father and mother.

That E-. W. Vinyard has cut timber from said land and slandered their title by having caused adverse titles to be placed on record and claiming to be the owner thereunder. The said plaintiffs brought an action of slander of title against him and pray that he be ordered to either disclaim title or assert his rights to the land if any he has.

The defendant for exception to plaintiffs' demand alleged that they did not have possession, that defendant himself had possession of the land as owner. Defendant further plead that prescription of one year against plaintiffs’ demand for timber cut and prayed that plaintiffs’ demand be rejected.- .

Defendants’ exception was considered as an answer and referred to the merits.

The demand of the plaintiffs was held barred by prescription as to the timber cut and their demand that defendant be required to either disclaim title or assert his rights, if any he has, was refused on the ground that plaintiffs did not have possession of the land as claimed in their petition. The plaintiffs appealed.

The evidence shows that John Hano, ancestor of the plaintiffs, was the owner and possessor of the S % of the SW1^ of Section 14, T. 7 S., R. 8 E., by title from Thomas Badeaux in 1869. Many years ago he sold the SWÍ4 of the SW% of Section 14, T. 7 S., R. 8 E. to William Hano; remaining the owner and possessor of the forty acres described in the petition of the plaintiffs. John Hano built a dwelling house which he supposed was on this remaining forty acres; but died about the time it was completed. Mrs. Mary Hano, his widow, and her. children, the plaintiffs, moved into the house, cleaned, fenced and cultivated a small field near the house which they believed was on the forty acres in questions. The house and improvements may be on the forty acres in question, some of the witnesses say that they are, while others think the improvements erected by John Hano was just across the line on the adjoining forty; but be that as it may, John Hano intended to build on the land that he owned after selling forty acres to William Hano and his widow and their children believed that they were living on it.

The limits of the forty acres in question do not appear to have been surveyed, therefore the intention of the owner and of his widow and heirs and their acts, amounted to a taking of actual possession of the forty acres remaining.

As the children grew up, they departed' from the mother’s roof and made homes for themselves. When the last child left; she visited them for indefinite periods but always returned to the place mentioned, claiming it as her home. While she was absent on a visit to' some of her children more than thirty years ago, the house burned and since then the place has not been occupied by anybody. Her children kept up the taxes it seems for a few years, but eventually neglected to pay the taxes and the property was- adjudicated to the state for delinquent taxes on the land assessed against Mrs. Mary Hano. The property was not redeemed from the state, and in October, 1889, property claimed by defendants to be the property in suit, based on an adjudication that had been made to the state, was sold by the state to Edgar St. Ceran whose title was duly -recorded on the day or about the time it was passed.

Defendant Vinyard by mesne and intervening sales, all acts duly recorded’, deraigns a claim to title from Edgar St. Ceran. The defendant and his authors have had the land which they claim is the same claimed by the plaintiffs assessed to them and have paid taxes thereon since 1889. Defendant has cut timber and. raked straw on the land, but has not occupied the land nor enclosed any part of it.

If the plaintiffs had continued to pay taxes and had exercised some act of actual possession every ten years as required by C. C., Art. 3444, then as held in Ellis vs. Prevost, 19 La. 251, their possession would have continued until this time, but they neglected to do that. It seems from the evidence that more than twenty years has elapsed since the plaintiffs or any of them has manifested any interest in the property, until the institution of this suit.

The facts and circumstances show that they lost their possession by their failure to perform, any act of possession for more than twenty years. They permitted the land to be sold for delinquent taxes; havé acquiesced in the acts of defendant and his authors in having it assessed to them, and in the payment of taxes on it by them, and offered no objection when defendant cut the timber and raked the. straw. In such a situation plaintiffs can not be regarded as possessors nor as having the rights which the law confers on possessors.

The case of Frost Johnson Lumber Co. vs. Sallings Heirs, 150 La. 756, 91 South. 207, cited by the plaintiffs involved a different situation and is not inconsistent with the conclusion at which we have arrived in this case. The same is true as to Guillaume vs. Guillaume, 132 La. 413, 61 South. 510; Slattery vs. Arkansas Natural Gas Co., 138 La. 793, 70 South. 806.

Plaintiffs have not the requisite possession,: to enable them to maintain an action of slander of title against the defendant.

If they had brought suit under Atchafalaya Land Co. vs. Brownell-Drew’s Lumber Co., 130 La. 657, 58 South. 500, or Act 38 of 1908, the legal situation would have been sufficient to call on the defendant for a test of title.

The judgment appealed from reserves this j-ight to either party.

The judgment appealed from is correct.

Judgment affirmed, the plaintiffs and appellants to pay the cost in both courts.


text:
    No. -
    First Circuit
    GOURNAY v. PRATHER
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 558,759.
    Correction of former judgment allowing claim of intervenor for labor employed in the cutting and harvesting of defendant’s crop.
    R.,L. Garland, of Opelousas, attorney for plaintiff.
    P. R. Sandoz, of Opelousas, attorney for defendant.
    H. G. Brunson, of Opelousas, attorney for intervenor.
   ON REHEARING

MOUTON, J.

A rehearing was granted in this case, but was restricted to the question of the rank of the privilege claimed by L. O. Wade, intervenor, who contends he is entitled to a privilege, priming all the other liens asserted herein, for the sum of $152.75 representing claims for labor employed in the gathering and harvesting of defendant’s crop. In his brief on rehearing counsel for intervenor refers to pages 179, 180, 181, 182, 183, 193, 194 and 195 of the record which he says show that he should recover in the amount above stated as subrogee to the privilege of laborers.

It appears from these pages of the record by documentary assignments that intervenor acquired a number of claims from laborers in small amounts aggregating a total of $23.25, and not $152.75 for which he contends.

We find in the record an assignment of a claim by Hundley to intervenor for $129.50 which if added to the total of $23.25 for the various items above referred to, would amount to the sum of $152.75 that intervenor contends is due him, and says should be classified as a privilege of the first rank. The record shows that this sum of $129.50 was loaned to defendant to assist him in harvesting his crop. Hundley merely advanced this sum to the defendant, and did not know if it was used to pay the wages of laborers to save the crop or not. The fact is that defendant did not testify that it had been used for that purpose. It is certain that there is no evidence to show that Hundley ever used the money to pay any laborers, or that any of these ever transferred to -him their claim for wages against defendant as was done by the other laborers for the various items constituting the aggregate amount of $23.25 hereinabove referred to. Intervenor is entitled for this amount to a first privilege in this case, but not for $152.75 as claimed by him.

Our original judgment and that of the district judge will have to be amended to conform with these views. Deducting the amount of $23.25 from the sum of $437.10 originally allowed intervenor on the basis of a concurrent privilege, leaves a balance of $413.85 thereof in his favor.

It is therefore ordered, adjudged and decreed, that our original decree and that of the district court be amended by decreeing in favor of L. O. Wade, intervenor, a first privilege in the sum of twenty-three and 25-100 ($23.25) dollars on the crop of defendant seized herein, and that he be paid said amount from the proceeds thereof in preference and priority to the other creditors in this case; and that a concurrent privilege be and is hereby recognized in his favor in the sum of four hundred and thirteen 85-100 dollars ($413.85) instead of $437.10 originally decreed; and as amended the judgment be affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    CUNNINGHAM v. MIDDLETON
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Landlord and Tenant —Par. 120.
    The test of jurisdiction in ejectment suits is fixed by Revised Statute Section 2156 making the monthly or yearly rent paid for the lease the test of the jurisdiction.
    (See Section 48 of Article VII of the Constitution of 1921. -Editor’s note.)
    2. Louisiana Digest — Landlord and Tenant —Par. 118, 121.
    Section 2157 of the Revised Statutes giving a right of appeal to the tenant does not apply to the -landlord who has been unsuccessful in his demand to eject the tenant.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact unless clearly erroneous will be affirmed.
    Appeal from the Parish of Washington, Hon. Prentiss B. Carter, Judge.
    Action by Horace V. Cunningham against Robert R. Middleton. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ott and Rich, of Bogalusa, attorneys for plaintiff, appellant.
    A. S. Frederick, of New Orleans and Covington, attorney for defendant, appellee.
   LECHE, J.

This is an ejectment proceeding brought under R. S., Section 2155, as amended by the Acts of 1900, page 84, 1908, page 479, and 1918, page 71. Defendant and appellee, moves to dismiss the appeal on the ground that it was not taken within 24 hours, and cites in support of that ground of his motion Act 49, p. 71, of 1918, and the case of State ex rel. Mallu vs. Judge, 128 La. 914, 55 South. 574. He urges as an additional ground to dismiss, that this court is without jurisdiction ratione materias et rationae personae.

The test of jurisdiction in ejectment suits is fixed by R. S., Section 2156. That statute provides that “whenever the monthly or yearly rent paid by the tenant, of the lease which he shall allege to hold, shall exceed the sum of one hundred dollars, the proceeding shall be carried on, etc.” Here the lease which ■ defendant holds, exceeds onp hundred dollars in value, and the proceeding was properly carried on in the district court and the appeal properly lodged in this court. The property is situated in Washington parish and the suit was brought at the proper domicile, in the parish where the property is situated. Again by Section 48 of Art. VII of the Constitution, justices of the peace are given jurisdiction in ejectment suits where the rent for the unexpired term of the lease does not exceed one hundred dollars; here the rent due is two hundred and forty dollars for the unexpired term of the .lease, therefore the action was properly brought before the district court, and is appealable to this court.

The first ground of the motion to dismiss is that the appeal was not taken within 24- hours. Section 2157 of the Revised Statutes gives the right of appeal under certain conditions, to the tenant when he has been condemned in the ejectment proceeding, but does not apply to the landlord who has been unsuccessful in his demand to eject the tenant. Here the landlord has appealed and the statute limiting the right of appeal to 24 hours, does not apply to him.

We do not believe the grounds upon which defendant relies, are supported by law and his motion to dismiss is therefore overruled.

Plaintiff bases his right to avoid the lease and to eject defendant from the property, on the grounds that defendant has failed to keep up the fences, gates and improvements, (which improvements are not specified or mentioned), that defendant has willfully and negligently ploughed and torn down the terraces on the land, and finally that defendant had failed to pay the rent when due.

The written lease annexed to plaintiff’s rule is not dated, but stipulates that the lease is of a farm or tract of land, to begin on October 1, 1924, and to continue for five years, in consideration of three hundred dollars, payable at the rate of sixty dollars per annum, due on October 1, 1925, and every year thereafter until expiration of the lease. It stipulates expressly that defendant is to keep, all fences and improvements in proper repair. Other stipulations are also contained in the lease, but are not the subject of any controversy in this proceeding.

The evidence shows that defendant made his first payment under the lease, due October 1, 1925, on the 9th of October, 1925, that plaintiff accepted payment without protest or objection. It fails to show that defendant has neglected to keep up the fences and gates in proper repair, and the only ground seriously contested is that the defendant has' wilfully and negligently ploughed and torn down the terraces on the land. Part of the land under lease is situated on the side of a hill, and it is terraced in order to keep water from washing the freshly ploughed earth down to the bottom of the hill, and to guide the drainage so as to do the least damage to the crops grown thereon. These terraces had been built a short time before the lease was entered into and it is but reasonable to conclude that in due time, they settled and packed and that it was inevitable they should gradually subside and be damaged by the rainfall, which just previous to the filing of this proceeding, was unusually heavy. Their condition at the time this proceeding was filed, is much disputed by the testimony and we cannot say that the trial judge erred when he concluded that their condition afforded no ground to dissolve the lease. There is as weighty evidence that the terraces were then in good condition, as there is that they were badly damaged.

The allegation of plaintiff’s complaint, that “defendant has wilfully and negligently ploughed and torn down the terraces” is unsupported by proof of any kind. We believe our learned brother had properly disposed of all the issues here involved and that his judgment should be affirmed, and

It is so ordered.


text:
    No. -
    First Circuit
    COCO v. MOSS COMPANY
    (May 4, 1926, Opinion and Decree)

      (Syllabus By the Editor.)

    1. Louisiana Digest — Estoppel—Par. 40, 41.
    A plea of estoppel is not good against a claim because the plaintiffs accepted a check for part payment on which was printed in red ink “for balance due”.
    2. Louisiana Digest — Transaction or Compromise — Par. 1, 3.
    A check used in part payment of an account on which was printed “for balance due” is not a transaction or a compromise under Article 3071 of the Civil Code.
    Appeal from the Parish of St. Landry, Hon. B. H. Ravy, Judge.
    Action by J. M. and L. W. Coco against Wilhelm Moss Company, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. E. Couvillon, of • Marksville, and Dubuisson, Perrault & Burleigh, attorneys for plaintiff, appellee.
    D. L. Guilbeau, of Opelousas, attorney for defendant, appellant.
   LECHE, J.

Defendant at various times, during a period covering several months, bought from plaintiffs, in carload lots, about ten in number, moss for which it settled by drafts drawn by its agent in Louisiana on itself at its office in Gowanda, New York. All the drafts were paid promptly and in due course, except one for the last carload' lot, and the present suit is to recover the amount of the invoice represented by that draft.

The amount of plaintiffs’ claim is based upon 140 bales of moss, weighing 22,604 pounds at an agreed price of 9% cents per pound, and is stated to be $2147.38, less a discount of 2%, or $42.94 if paid "cash. The draft, was therefore drawn for $2104.44 and as cash payment was not made, the claim in suit is for $2147.38.

Immediately after the suit was filed, and apparently before service was made, defendant remitted by mail its check to plaintiffs, for $1122.33 and accompanying the cheek was a memorandum of claims by defendant against plaintiffs, for discount, shortage of weights and other items amounting to $1025.05. Plaintiffs endorsed the check as being accepted on account, or as a partial .payment, and at once wrote to defendant, and denied any indebtedness on their part.

Upon receipt of the proceeds of the check, plaintiffs entered a remititur, thereby reducing their claim against defendant to the sum of one thousand and twenty-five ($1025.05) dollars and five cents, for which amount they recovered judgment in the district court. The present appeal was taken by defendant.

There can then, be no question of jurisdiction raised in this court as the matter in contest is restricted to $1025.05.

The main defense on appeal is a plea of estoppel. Defendant contends that because its check to plaintiffs was accompanied by a statement on which was printed in red ink, that the check was remitted to cover the balance due, as per that statement, that it was therefore in full settlement, and that as plaintiffs accepted and collected the check, they are estopped from making further claim against defendant, and are bound by the settlement.

In support of this plea, defendant cites several decisions from other states, most of which are not presently accessible to the writer of this opinion. It appears to us that this defense is similar to the Common Law plea of “Accord and Satisfaction” under which heading in most of the “Common Law” digests, numerous decisions are' collated. These decisions are by no means in harmony with one another, but there is one principle upon which the authors of these digests all agree, as being necessary to constitute an Accord and Satisfaction and it is that there must be some consideration, even if inadequate, for the validity of the contract. R. C. L., vol. 1, p. 183 Cyc. vol. 1, p. 311. The fact that upon part payment of a liquidated claim a written receipt in full is given by the creditor does not, according to the great weight of authority, take the case out of the rule.

We fail to see any consideration given by the defendant in this case. It paid what it acknowledged to owe to plaintiffs and after remitting to plaintiffs its check for $1122.33, it was in no worse position than it had been before such payment. It had yielded nothing and had given nothing to induce plaintiffs to abandon the rest of their claim of $1025.05. We may here also note that for the same reason there can be no estoppel against plaintiffs, as they did not by accepting the cheek and collecting it, induce defendant to part with anything of value or any right which it may not still exercise. Nor does the acceptance of the check and its collection, constitute a Transaction or Compromise under La. C. C., Art. 3071, for there was no agreement or adjustment of difference between the parties.

Defendant cites one decision of the Supreme Court of Louisiana in support of its plea, the case of King vs. New Orleans, 14 La. Ann. 389. Of course this court is bound by that decision and has no right to question its correctness but even that decision does not cover the present case, for here the check was expressly accepted as part payment while in the cited case, there was no protest made nor objection offered by the plaintiff, when he received a warrant for his salary and the court held that he had been paid in full.

Defendant as before stated, seems to rely, in this court, mainly on its plea of estoppel, and although it has not abandoned its other defense, we hold that the testimony fails in our opinion to support its counterclaims. There was no complaint on the part of defendant as to the manner in which plaintiffs had carried out their contract, until the month of May, 1925, although it had received and accepted many shipments previous to that date. Plaintiff testifies positively as to the quality of the moss, and the prices agreed upon between themselves and defendant, through its accredited agent, as well as to the weights. We believe the evidence largely preponderates in favor of plaintiffs and we also concur with the trial judge in his finding of facts.

Being then of the opinion that defendant’s plea of estoppel is not supported by law, and believing further that defendant has failed to sustain its counter-claims or set off by adequate proof, the judgment appealed from should be affirmed and

It is so ordered.


text:
    No. 4237
    First Circuit
    STRATTMAN v. STEPHENS
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 725.
    The court is bound to notice the want of necessary parties and will remand the case for trial de novo with proper parties litigant.
    Appeal from the Parish of Washington, Hon. Prentiss B. Carter, Judge.
    Action by W. P. Strattman against Percy W. Stephens. There was judgment for plaintiff and defendant appealed.
    Case remanded for trial de novo.
    Cappel and Plauche, of Covington, and W. B. Mixon, attorneys for plaintiff, appellee.
    Spearing, Miller and Mabry, of New Orleans, and Miller and Miller, of Bogalusa, attorneys for defendant, appellant.
   ELLIOTT, J.

Plaintiff charges in substance, that he sold his property to defendant, for $900.00, with right to redeem by refunding this amount in two payments. That the purpose of the sale, was to enable him to raise $900.00 to buy from defendant a patent accessory for usé on Ford automobiles. He charges that he was defrauded and deceived by defendant that the accessory was worthless and that defendant violated the contract by giving to one Murray at Slidell also the right to sell said accessory, which under the agreement defendant had made with plaintiff. Plaintiff was to have the exclusive right to sell in the parishes of Washington, St. Tammany, etc.

On the trial of the case It appeared beyond question that while plaintiff had borrowed the $900.00 from defendant in person, the contract for the exclusive sale of the Ford accessory was made with a duly organized and chartered corporation, called the “R. Stephens Sales Company” of Chicago, which is not a party to this suit.

The two contracts, that of the redemption and sale and that of the exclusive agency for the sale of the Ford accessory, are alleged by plaintiff, to constitute one single transaction. If defendant was guilty of fraud and deception, it was in the sale of the Ford accessory, the borrowing of the $900.00 under a redemption sale being merely an incident to the contract for the sale by defendant to plaintiff of the exclusive right to handlé the Ford accessory.

The redemption sale by itself, is not charged as being fraudulent. Plaintiff acknowledges that he received the $900.00, the real consideration mentioned in the act of sale, but the fraud and deception of which he complains, if true, was in the contract for the purchase and sale of “gas signals” the accessory in question.

But to avoid the contract for the purchase and sale of the “gas signáis” it is necessary that the “Stephens Sales Company” should he a party because it is shown by indisputable evidence that the contract was made with that corporation, and not with Stephens personally.

The court is bound to notice the want of necessary parties and the case will therefore be remanded that plaintiff may make the “R. Stephens Sales Company” a party to this suit, and the case tried de novo and in accordance with the law.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby set aside and this case is now remanded to the lower court in order that the plaintiff may make “R. Stephens Sales Company” a party to this suit, all to the end that the case may be properly decided on the merits with all parties in interest before the court.

The case to be tried de novo as the law provides.

The cost to abide the final decision of the case.