text:
    No. 11,503.
    State ex rel. Algiers Brewing Company vs. Fred. D. King, Judge of Division “B,” Civil District Court, Parish of Orleans.
    An order directing sale of tlie property of a corporation which is in the hands of a - receiver may be suspensively appealed from by the corporation, on a bond • sufficient to cover costs of appeal — the property beings custodia legisaxLó. under the control of an officer of court.
    Any additional bond which the presiding judge, may .require as security for such - damages as may accrue during the pendency of the appeal is not authorized by law, and can not be imposed as a condition precedent to the appellant’s right to exercise his appeal.
    /y^PPLICATION for Writs of Mandamus, Prohibition and Certiorari.,

      Frank E. Rainold Attorney for Relator:
    Two bonds can not be exacted of an applicant for an appeal.
    The conditions of an appeal bond being fixed by law the court has no power or authority to add other and more onerous conditions. A fortiori it can not require a special bond to cover damages not covered by the appeal bond.
    Where the judgment is not for a sum of money, nor for the delivery of property, movable or immovable, and the effect of appeal is merely to extend the administration of an officer of the court, a bond for costs is all that is required.

      H. E. Upton and Lazarus, Moore & Luee Attorneys for Respondent:
    On February 19, 1894, while the Algiers Brewing Company was in the hands of the receiver, the stockholders of the company held an alleged election and elected a new board of directors with new officers. This directory authorized and had taken a rule to rescind the appointment of the reciver, but that rule has never been tried or determined.
    On March 1, 1894, the president of the said company, elected on February 19, 1894, applied, through counsel, for a suspensive appeal from the judgment ordering the sale of the property, alleging that the order worked the corporation irreparable injury, and that the defendant has moved to set aside the order of court appointing a receiver. In order to enable the respondent judge to wisely and prudently exercise the discretion vested in him, in fixing the amount necessary for the suspensive appeal bond, it was ordered that evidence be taken on a day fixed, all parties having notice thereof and all parties appearing at the time. After hearing the evidence then adduced and considering the matter the respondent judge granted the Algiers Brewing Company a suspensive appeal on their giving bond in the sum of one thousand dollars to cover costs, and a separate bond of thirty thousand dollars to cover the damages and injury which might be caused the various creditors or the company by a suspensive appeal. The appeal is then a suspensive appeal from .the order of court decreeing that.the property in the hands of ... .the receiver appointed by the court, be sold.

      In this case the suspensive appeal sought will have the effect of restraining the sale which has ibeen ordered by the court. The relator has not enjoined nor given any injunction bond. Surely he does not have the right to arrest a sale ordered by the court, especially as the sale was ordered after hearing the parties and considering the evidence adduced contradictorily, without giving a bond to cover the damages which may be occasioned by the arrest of the sale. A bond merely for costs would not cover such damage or injury.
    There are authorities which sustain the position of the respondent judge that the bond which specially secures such damage is necessary and proper, and that, in his discretion, he has the right to require such a bond and fix its amount. The leading authority on the question is S. J. Hart vs. Judge, 34 An. 1210. In that ease the court, after commenting upon the authorities in injunction cases and upon the general rule that a bond which would cover costs and damages would be sufficient, held that in exceptional and special cases an additional and larger bond could be legally required by the court. This case has been affirmed in 40 An. 843.
    This same doctrine has been held by the court in injunction cases.
    In State ex rel. Vial vs. Judge, 36 An. 910, the Supreme Oourt held that: “In computing the amount of the bond to be furnished for a suspensive appeal from a judgment dissolving an injunction with costs, the proper expenses incurred by the sheriff, as consequence of the injunction, for the preservation and cultivation of a sugar plantation under seizure, may be taxed as costs occasioned by the injunction, and must be included in the amount of the bond furnished to be required for such appeal.”
    The following are the salient and prominent facts and issues:
    1. That considering the value -of the property and the amount of the debts, the corporation is hopelessly insolvent.
    2. That the testimony of the receiver and of all the witnesses discloses that it is impossible to secure any money with which to continue the operations of the brewery.
    3. That unless such money is secured, the brewery will have to be closed in less than ninety days.
    4i That if the brewery is closed and is no longer a going concern, a depreciation in its value of not less than thirty per cent, will be the result.

      6. That the secured and mortgage bondholders are demanding the sale, and not a single creditor is objecting.
    6. That the receivership indebtedness, by reason of the expenses exceeding the receipts, will increase.
    V. That no one is opposing the sale except the insolvent, a nominal corporation, under a directory elected since the property was placed in the hands of a receiver.

      E. Howard McOaléb, B. MoGloskey and H. P. Dart for Intervenors on same side.
   The opinion of the court was delivered by

Watkins, J.

This proceeding arises in the case entitled Lafayette Bank vs. Algiers Brewing Company, No. 39,952, in the Civil District Court, Division B, which court is presided over by the respondent judge, wherein several persons claiming to be bondholders of the defendant company intervened and procured rules on all parties to the suit, to show cause why the plant and all of the paraphernalia and property of said corporation should not be sold.

On the trial of said rules an order was made by the respondent to the effect that John H. O’Connor, receiver of the Algiers Brewing Company, should, after due advertisement, make sale at public auction of the entire property and effects of said corporation, for cash, for not less than two-thirds of its appraisement.

Erom this order of sale, the relator, acting through its president, moved the aforesaid court for a suspensive appeal, upon furnishing bond in the amount required by law, and the respondent fixed the amount of such bond at one thousand dollars, but at the same time requiring of the Brewing Company, as appellant, that it should furnish and file, before his appeal bond for costs, * * * his bond, with a good and solvent surety for thirty thousand dollars, conditioned for the payment of all such damages as shall be sustained by the receiver and creditors by the appeal from the order of sale in this ease, if it should-be decided that such appeal was wrongfully obtained and illegally kept in force by the appellant.”

In relator’s petition are stated the grounds of complaint against the sale-order thus, viz.:

“Now your relator says that the judgment from which an appeal is sought is not a moneyed judgment, nor a judgment for the delivery of movables or immovables, and (the respondent) had no authority or right to demand, besides the appeal bond, the special bond herein-before spoken of.”

He further shows that all the property and assets of the corporation are in the possession and under the control of the said receiver, an officer of the court, and if same suffer damage or deterioration, it will in nowise be his (relator’s) fault; and he represents that when property is in the hands of an officer of the court, and there remains pending the appeal, a bond for costs, is all that can be legally demanded of an appellant.

In the alternative, he denies that the proof discloses the likelihood of any loss being sustained during the pendency of an appeal. And finally the relator avers that the action and order of the judge in requiring a special bond of thirty thousand dollars, if maintained, will practically operate a denial of its constitutional right of appeal, they superadding to an appeal bond a.requirement that is illegal and contrary to law.

Hence his prayer is for certiorari to issue requiring the respondent to transmit to this court a certified copy of the record in said suit; for prohibition to restrain further proceedings in the matter of said sale; and mandamus to coerce a suspensive appeal on relator’s one thousand dollar bond, which has been already tendered.

The respondent has sent up the original records of his court, in lieu of certified copies thereof, because of the delay which the making of certified copies would engender.

He returns, substantially, that, in view of the fact that he was unable, at the moment, to fully and definitely determine what the amount of the' suspensive appeal bond should be — baking into consideration the injury which might possibly be wrought to all parties in interest by a suspension, for any length of time, of the order of sale, and, at the same time, be preservative of the relator’s right of appeal — he made an order for the taking of testimony on that question, regarding such to be a conservative and proper course to be pursued, under the circumstances.

He further returns that, in his opinion, the testimony taken in pursuance of said order established the fact that great loss and injury would be entailed upon the corporation and its property by the proposed appeal of the relator — a careful summary of the evidence adduced, and the reasons which influenced his judgment in the premises, being given at length.

He further returns that, considering all these facts and circumstances, he considered it in the plain line of his duty, and in the exercise of a just and reasonable discretion, warranted by the settled jurisprudence of this State, to demand a bond equal to the amount of damage likely to result from a suspension of the order from which an appeal was sought,” and hence he made the aforesaid order.

He insists that this was a proper case for the exercise of his discretion, and that such discretion was justly and reasonably exercised, and his action was warranted by the decisions of this court, and notably that in the case of State vs. Judge, 19 La. 167; State ex rel. Coons vs. Judge, 27 An. 334; and in Hart vs. Judge, 34 An. 1210.

The controversy is thus narrowed to one question, and that is whether the relator is entitled to appeal suspensively from the order of sale upon its furnishing bond in the sum of one thousand dollars as fixed by the respondent’s order; or was the right of appeal properly conditioned upon relator previously furnishing an additional bond for damages.

Relator furnished and caused to be filed the suspensive appeal bond of one thousand dollars, bub declined to furnish the additional bond of thirty thousand dollars to cover such damages as may result during the pendency of the appeal.

The contention is, substantially, that under an ex parte order of the respondent at the request of plaintiff in the aforesaid suit a receiver was appointed, who qualified, gave bond and entered into possession of all the property and assets of the corporation; and is now, and has been at all times since said order was made in the actual possession, management and control thereof for the account of the creditors of the corporation. That certain of the creditors of the corporation having intervened in said suit, but having obtained no judgment therein, applied to the respondent pendente ,lite for an order for the sale of all its assets and property, as a conservatory measure, in the interest of all parties concerned.

That believing a sale would be injurious and result in irreparable injury and loss to the corporation, relator applied to the respondent for an order of suspensive appeal, which he granted under the suspensive condition above stated.

Of the imposition of this condition, relator complains that it is illegal and unwarranted in law; that the only judgment which the appellate court could render adverse to the corporation would be one affirming the validity and legality of the sale-order, directing the sale to be proceeded with; and, inasmuch as the property is in the hands of the receiver, an officer of court, and being operated by him for account of creditors, any loss which might happen during the pendency of the appeal could not be attributed to it — no part of the revenue passing under its control, and no part of the property being under its administration.

That the judgment, or interlocutory decree which is appealed from, is not a moneyed judgment nor one for the delivery of property, movable or immovable, and, consequently, the only bond that can be required is one that will cover the costs of the appeal, and that any other, or different bond which may be required, as an incident of the appeal, is without any warrant in law, and has the effect of a denial of its exercise of the right of appeal, notwithstanding its right to a suspensive appeal is conceded.

It is, therefore, a fact well recognized that the only appeal bond which the corporation was required to furnish was only one that would cover costs — the corporation having been divested of possession by the appointment of a receiver, and by his investiture of possession it became a stranger to the litigation quoad the order of sale, and relegated to the rights of a third person.

This statement would seem to close the controversy but for the reasons assigned by the respondent, which are persuasive, though unsound.

The only thing the respondent was called upon to determine was the amount of bond necessary for a suspensive appeal from the order of sale; and, in order to do that, he was only charged, under the law, to ascertain what amount would cover costs of appeal.

This the respondent did. He ascertained and fixed the amount of the bond for suspensive appeal, and the relator gave it.

Our predecessors stated the rule comprehensively and accurately in State ex rel. Durand vs. Judge, 30 An. 282.

The right of appeal is a precious one,” says the court, and it should be favored and aided by the courts. There should be no difficulty in fixing the amount of the bond for an appeal in any case. When the judgment is for a specific sum, the party east must give bond for a suspensive appeal for a sum exceeding by one-half the amount for which the judgment was given. C. P., Art. 575.

“ If the judgment decree the delivery of movable property of a perishable nature, the security for a suspensive appeal must be for an amount exceeding by one-half the estimated value of such movable. Id. 576.

“ If the judgment decree the delivery of real estate not of a perishable nature, security shall only be required to an amount exceeding by one-half the estimative value of-the revenue to be derived from such realty pending suit, and for such further amount as the judge may determine, as surety for any injury or deterioration which may be caused to the estate by the appellant while in possession of the same. 'Id. 577.

“ In all eases not falling within the terms and provisions of these articles, no other security is necessary than such as will suffice to cover the costs."

The suit of State ex rel. Block vs. Judge, 44 An. 564, presents a case of an intervenor demanding the right to suspensively appeal from a large money judgment which was awarded the plaintiff, against the defendant, sustaining an attachment, on furnishing a bond sufficient to cover costs. The district judge required a bond for one-half above the amount of the judgment, and this court made peremptory a mandamus of the intervenor, saying:

“ The law fixes no standard for the amount of bond to be given by a party who wishes to take a suspensive appeal from a judgment refusing him a participation with others in a fund in the hands of the court. A bond for cost is sufficient,” citing authorites. “The bond could only be for the satisfaction by the surety of the judgment to be rendered on appeal, should the principal fail to pay it. In no court could the relators be condemned, on appeal, to pay more than the costs. Requiring a bond for more would be oppressive and an idle formality." (Our italics.) Succession of Edwards, 34 An. 216.

In Blanchin vs. Fashion, 10 An. 345, the principle is stated clearly.

“The expressions of the article (O. P. 575),” say the court, “imply Ghat the judgment to necessitate a bond in one-half exceeding its amount must be one which the appellant has been condemned to pay. This amount of bond does not, therefore, seem applicable to the case of a judgment when the party appellant is condemned to pay nothing. Accordingly a bond for costs only was held to be sufficient for a suspensive appeal in an action of partition when the fund to be divided was in the hands of the court.”

In the case of State ex rel. Eustis vs. Judge, 27 An. 685, the court said very tersely: “ As appellant is not in possession of the funds in controversy, he need only give bond for the amount of costs. 10 An. 345; 20 An. 108. As he did this within ten days, the appeal operated a supersedeas. C. P. 575.”

In State ex rel. Hickey vs. Judge, 20 An. 108, it was substantially held that where there is no standard specially fixed by law, as to the amount of the appeal bond required to operate a supersedeas, pending an appeal, the judge should allow a suspensive appeal on appellant giving bond in an amount sufficient to cover costs. State ex rel. Sharp vs. Judge, 22 An. 176; State ex rel. Garrison vs. Judge, 21 An. 43.

In Heath vs. Yaught, 16 La. 515, the court put the proposition thus:

The fund out of which all of the claims were to be paid was in court-, it is therefore only necessary to inquire what judgment the court can render to determine the sufficiency of the bond. If the appeal shall be successful, then Heath & Co. are not liable for anything; if they are unsuccessful, they are only liable for costs. The bond is very ample to cover them.”

In State ex rel. Picot vs. Judge, 27 An. 231, it was held that, inasmuch as the property belonged to a succession, and was in the custody of the court, a suspensive appeal could be taken on the appellant furnishing a bond for costs. State ex rel. Beebe vs. Judge, 23 An. 31.

To the foregoing authorities, others of like purport might be added ad infinitem, but others are not deemed necessary. The tenor and purport of them all is that when the matter, fund or property in dispute is not in possession of the appellant, and he is not the party condemned by the judgment that is appealed from, but the res is in the hands or custody of the court, appellant is entitled to suspend proceedings under such decree, on furnishing a bond that will cover costs.

The cases cited and relied upon by the respondent are not pertinent to the question before the court.

State ex rel. Coons vs. Judge, 27 An. 334, involved the case of a relator claiming the right to a suspensive appeal on a bond for costs in an injunction suit in which he sought to restrain the sale of a valuable steamboat, and in which he claimed a large money judgment against the defendant' — the effect of the appeal being to perpetuate his injunction. His mandamus was refused.

In Hart vs. Judge, 34 An. 1210, the relator was likewise a plaintiff in an injunction suit which had been dissolved, and he sought to obtain a suspensive appeal on a bond for costs, but this court required relator to file an additional injunction bond — not appeal bond —to cover such damages as “ shall have been sustained by the injunction heretofore obtained-,” not for the purpose of covering possible damages which might result from the appeal.

State vs. Judge, 19 La. 167, presents a somewhat similar question of injunction, and like decision.

In State ex rel. Cain vs. Judge, 40 An. 841, relator was plaintiff in an injunction suit restraining the defendant from exercising the functions of an office he claimed, and, from-an adverse judgment, he asserted the right to appeal, suspensively, on furnishing a bond for costs; and to this effect the mandamus was made peremptory.

In State ex rel. Vial vs. Judge, 36 An. 910, another case is stated of an injunction dissolved, the only controverted question being the quantum of costs, a question not involved in this case.

After having gone over this case very thoroughly and made a careful examination and analysis of authority on the question involved, we have arrived at a conclusion different from the one entertained by our learned brother of the District Court.

Waiving any expression of opinion as to the right of appeal in this class of cases — a question not presented for decision — our conclusion is that the relator can not be required to furnish bond to cover damages that may accrue during the pendency of ah appeal; and, thus concluding, it is ordered, adjudged and decreed that the writs prayed for be made peremptory.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,462.
    Martha A. Ashley vs. Elise Schmalinski et al.
    The law will not maintain a contract, the consent to which o£ one o£ the parties is the result of error as to the substance of the contract, the error being caused by artifices and fraudulent representations of the other party; or if the frauds, not his directly, have been participated in or made effective by him. Civil Code, Arts. 1847, 1848; 1 Story’s Equity, Sees. 189, 191, 192, 193, 195.

      When the party seeking relief on grounds of fraud against an all'eged unconscientious contract of exchange (has employed an agent on whose information respecting the property) the subject of the exchange the party depended, the fact of the employment of that agent, and that the contract has been executed on the faith of his information, will furnish no defence to the defendant, the other party to the contract, if by his acts and conduct he furnished the motive for the agent not to'give his principal information actually withheld by the agent, and which, if given, would have prevented the execution of the contract, and thus protected the principal.
    PPEAL from the Tenth District Oourt, Parish of Rapides. Andrews, J.

      W. JET. Jack, H. H. White and M. H. Carver Attorneys for Plaintiff and Appellant:
    Plaintiff sues to annul and set aside a certain act of conveyance and for damages.
    The gist of the complaint is that the defendants, Schmalinski, Strouss and Loomer, conspiring and colluding together for that purpose and to that end, did, by false and fraudulent representations and other artifices, mislead, deceive and defraud plaintiff as to the quantity, quality, character, situation and value of the property given in exchange for her property. That she actually received but four thousand and four and twenty-hundredths acres of these lands, when under the agreement she was to have received the entire body of lands owned by Mrs. Schmalinski on the south side of Red river, aggregating over five thousand acres, and that the diminished quantity so received by her is worthless and unsalable and wholly different in nature, quality, situation and value from what it was represented to be.
    In all cases (and more especially in sales) where the information which would have destroyed the error has been withheld by the other party to the contract, it comes under the head of fraud and vitiates the contract. C. 0., Arts. 1832, 1847.
    Fraud vitiates everything, and whatever protean shape it may assume justice is left free to meet and thwart it. Lazarus vs. McQuirk, 42 An. 201; McReady & Burke vs. Schencke, 43 An. 479. Fraud as applied to contracts is the cause of an error bearing on a material part of the contract created or continued by artifice with design to obtain some unjust advantage to the one party or to cause a loss or inconvenience to the other; the error must be on a material part of the contract, that is to' say such part as may be reasonably presumed to have influenced the party in making it, but it needs not to be on the principal cause of the contract, as it must be in case of simple error without artifice. 0. 0., Art. 1847.
    The word artifice, as here employed, means not only “an assertion of what is false or a suppression of what is true,” but is expressly extended to any and all means in themselves “ calculated to produce a belief of what is false or an ignorance or disbelief of what is true.” Silence on the part of one whose duty it is to speak is oftentimes the most unmistakable evidence of fraudulent intent, and is fully compassed by this definition of the code. O. C., Arts. 1847, 1832. Story’s Eq., pp. 201, 202; 13 Wall.379; 37 An. 553; 5 An. 491; 33 An. 1364; 5 M. 306; 6 An. 426; 43 An.'_964; 10 R. 5; 12 An. 369; 3 An. 379; 13 How. 230; 3 Or. 264.
    It confessedly appearing from the answer of defendant Schmalinski that she treated with defendant Strouss as special agent of the plaintiff in the negotiations culminating in the alleged act of exchange without any communication whatever with the plaintiff, and it further appearing by her act of sale to Strouss (made part of plaintiff’s petition) that she on the same day deeded to the latter one thousand and seventy and thirty-hundredths acres of the same lands in consideration “ of his services to her in effecting this exchange” with his own principal, it follows as a fact and in law that such an act was a corrupt circumvention of plaintiff and in effect bribery.
    Aside from the secrecy attending this transaction, the absence of all knowledge of it by the plaintiff, the conveyance to Strouss is so self-condemnatory as to leave no doubt as to the conspiracy and fraud.
    In the broad glare of such turpitude it would be equally idle to contend that any acts or representations made by this unfaithful agent would bind his principal or could in any way advance the cause of her who was paHioeps erimmis in the unlawful act. The betrayal of his trust for a reward, eo instanti, put an end to his agency, and nothing he may have said and nothing he may have done can bind anybody but himself and the beneficiary of his •traitorous act. The rales of agency bring no benefit to those who openly and flagrantly violate them for their own gain.

      White & Thornton Attorneys for Defendants and Appellees :
    There is absolutely no evidence tending to show that either the defendant or her husband was party to any fraud or conspiracy by which the plaintiff was induced to make the exchange complained of.
    Error as to the value of property purchased is not error of fact, but error of judgment; and the law furnishes no relief for an error of judgment. Citizens Bank of Louisiana vs. Clarence L. James, 26 An. 264.
    Even fraudulent misrepresentations are not sufficient to annul a contract where the complaining party investigated the matter, or failed to do so when it could have been done. Kent’s Commentaries, 7th Ed., Yol. II, p. 609; Ibid., p. 618, and note A at bottom of page; Ibid., pp. 622, 623; Ibid., p. 625; Story’s Eq. Jur., 3d Ed., Sec. 194; Ibid., Secs. 149, 148, 197, 200 A; Domat’s Civil Law, Cushing’s Ed., p. 240, Secs. 406, 407; Revised Civil Code, Art. 2521; Ibid., Art. 1847, pars. 3 and 9; 1 An. 389; 3 An. 4; 33 An. 1364; 13 Wall. 379.
    As contracts of exchange can not be rescinded on account of lesion (R. C. C. Art. 1863), it follows that without proof of fraudulent conspiracy on the part of the defendant and further proof that the property acquired by the plaintiff is less valuable than that which she gave, she can neither annul the exchange nor compel the defendant to pay any damages.
    The evidence fails to show that the property acquired by the plaintiff through the act of exchange is less valuable than the property which she parted with. She has therefore suffered no damages.
    Even if the plaintiff could prove conspiracy and lesion, the contract can not be annulled, because an innocent third person has acquired a mortgage on the property given by plaintiff, and the status quo can not be restored.
    As to this mortgage creditor, made defendant herein, the evidence utterly fails to prove fraudulent collusion.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, Martha A. Ashley, wife of W. H. Jack, brings this suit to set aside for fraud an exchange of her property in the town of Alexandria, for certain lands in the parish of Rapides, of Elise Schmalinski, wife of Samuel Schmalinski. Besides Sehmalinski and wife, the plaintiff joins as defendants Adolph Strouss and H. M. Loomer, charged to have been accomplices in the fraud, and B. Ehrstein, to whom Schmalinski and wife mortgaged the property conveyed to them in the exchange, the petition denying that Ehrstein is a bona fide holder, for value, of the mortgage note. The fraud alleged is, substantially, that the exchange of the plaintiff’s property was procured by false and fraudulent representations and artifices of Strouss and Loomer, as to the character and value of the lands of Schmalinski and wife; that these lands were practically of no value, and plaintiff’s dwelling was worth eight thousand dollars; that, beyond this, the plaintiff was de’frauded of a large portion of the lands by a corrupt agreement between Strouss and Schmalinski, and that the lands so acquired by Strouss were all that possessed any value; and plaintiff charges that Strouss and Loomer being instruments of Schmalinski and wife, they all participated in the alleged fraudulent representations and artifices. The relief asked is the annulling of the exchange; that the transfer of plaintiff’s property by Schmalinski and wife be enjoined; the mortgage to Ehrstein be set aside; that plaintiff recover certain taxes on the Schmalinski lands, and other expenses incident to the exchange, paid by plaintiff; and, finally, she asks for exemplary damages. Defendants answered, denying all allegations of fraud. The judgment of the lower court was against Strouss and Loomer for damages, and against plaintiff, maintaining the exchange and the mortgage. Plaintiff appeals.

The act sought to be set aside, of exchange of plaintiff’s property for the Schmalinski lands, is of date the 30th January, 1892, and recites that each party gives her property for the other. The valuation of plaintiff’s dwelling is fixed higher than the lands, the difference being adjusted by the stipulation that plaintiff should retain her dwelling for a few months after the date of the act.

The testimony shows that plaintiff, desirous of selling her dwelling in Alexandria, employed Strouss, one of the defendants, a real estate agent, to effect the sale. About the same time Loomer and the defendant were employed by Schmalinski and wife to sell their lands in the parish south of Red river. Of Loomer’s employment by Schmalinski and wife, plaintiff was ignorant. Strouss conceived the scheme of the exchange of the dwelling for the lands. He urged it on plaintiff, and represented the lands were heavily timbered and saleable, lay in a solid body, and were five or six thousand acres in extent. Strouss enforced his fascinating statement by suggesting the employment of Loomer to examine and report as to the lands.

Loomer, if not then, soon after became the partner of Strouss, and the commissions on the exchange thereafter effected of plaintiff ’s dwelling were shared between Loomer and Strouss. The plaintiff, entirely ignorant on the subject, stated she would have to rely on the information given her, and the result was, Loomer proceeded on his mission of examination. His account to plaintiff on his return was even more favorable than that of Strouss. Loomer’s report was in substance, that the lands were heavily timbered with white oak and other trees of value, lay convenient to the railroad in a solid body; that the timber could be readily sold at good prices: when cleared the lands were adapted to farming purposes— worth ten dollars per acre, could readily be disposed of, and he and Strouss concurred in the assurance that she should get all the lands. Loomer emphasized his account by the statement that the lands were high and free from overflow. True, the testimony of these representations comes from plaintiff. We have weighed the circumstance of her interest, and of the contradiction her testimony encounters from that of Strouss and Loomer. Her narration, clear, consistent and positive, finds corroboration, we think, in other parts of the record. As to the contradiction of Loomer and Strouss, their parts in the transactions connected with the litigation, we think, give little, if any, weight to their statements. Our conclusion is the representations were made as detailed by plaintiff. Our conclusion is, also, the representations were false, and designedly false. There is some testimony tending to show a speculative value of the lands, based on the hope of a perfect levee system and other possibilities of the future. On the other hand 'there is testimony far more persuasive, that under any conditions the cost of reclaiming the lands places that result beyond rational probability. As to the timber, it is put beyond dispute that there is practically, no growth on the lands of the kinds represented to plaintiff _ The lands are shown to be low, swampy and overflowed; of course, utterly unfit for cultivation, or capable of being fitted for cultivation, except at a cost none could incur. It is shown, too, that they do not lie in a solid body, nor, for the greater portion at least, convenient to the railroad. This testimony, falsifying in all material respects the representations on the faith of which plaintiff was induced to exchange her dwelling for the lands, comes from surveyors and others qualified to speak, and creates the absolute conviction of the error caused by the false representations under which plaintiff acted.

The judgment of the lower court decrees that Strouss and Loomer pay damages, and thus condemns their conduct but holds there is no basis to disturb the exchange. We have given the most careful attention to the case exhibited with respect to Sehmalinski and wife, and reach a conclusion different from that of the lower court. It is in evidence that on Loomer’s visit of inspection of the lands he was accompanied by Baker, who gave his testimony as a witness. Baker was asked by Strouss to examine the lands, and at his instance went with Loomer. On Baker’s return he gave Strouss the true condition of these lands, and that conformed to the testimony produced by plaintiff. Bad as the lands were reported by Baker, Strouss testifies he “ colored ” it, and made it, as he expresses it, as “blue” aspossible. Thus the false report of the lands was given to plaintiff by Loomer to induce her to make the exchange, and the true report exhibiting the worthless character of the lands was placed before Sehmalinski. Srouss practically directed both reports. When Baker’s report was put before Sehmalinski it elicited from him the comment, “ he did not think the lands were as bad as that,” but he was stimulated to no action or forbearance with respect to the exchange into which the plaintiff was being led by the false report then before her. But the record shows that in this condition, the true report before Sehmalinski and the false report before plaintiff, at Strouss’ request Sehmalinski made him a gift of one thousand acres of the land, consummated by the conveyance a day or two after, the conveyance reciting Strouss’ services in effecting the exchange as the motive for the gift. The general rule, as claimed by counsel for defendant, is that the law requires the parties to the contract of sale, to inform themselves as to the property, and does not exact disclosures from one to the other (Story’s Equity, Sec. 200). This principle of law supposes equal opportunities of information, but is never applied to sustain unconscientious advantage. There was here no such equality of positions. The full knowledge of the character of ,the lands, if not possessed before, and at all times, was certainly imparted to Schmalinski by Baker’s report. It was given to Schmalinski and withheld from plaintiff by the treachery of the agent on whom she implicitly relied for information. If a line of that report had reached her the lands would have been utterly rejected as an exchange for her dwelling. With the full knowledge on the subject afforded Schmalinski by Baker’s report withheld from plaintiff, to whom it should have been furnished by Strouss, and if furnished would have protected her against the sacrifice of her property, in our opinion, it is unconscientious to permit Schmalinski to profit by the exchange. Then, too, he knew he was dealing with Strouss as an agent for the plaintiff. The gift to that agent, and the purpose and nature of his communications, was notice, we think, by necessary implication, of the violation of the duty of the agent to his principal. With notice of this treachery of the agent and with abundant reasons at least, for Schmalinski to suspect the fraud shown by the record practised on the plaintiff by the agent to bring about this exchange, we can not distinguish the position of Schmalinski from that of one who had actual knowledge of the fraud, and of course no one with this knowledge could profit by the exchange. In this view we think Schmalinski is affected with responsibility for the false representations and artifices of Strouss and Boomer, which led plaintiff to give her dwelling for the lands.

There is another view. In her conferences with Strouss, it was the plaintiff’s understanding she was to receive all the Schmalinski lands south of Red river, in all five thousand or six thousand acres. It was afterward falsely represented to her that there were only four thousand acres. This was in aid of the gift of the one thousand acres, Strouss proposed to secure for himself. A paper was prepared, reciting that Schmalinski bound himself to convey four thousand acres for the plaintiff’s dwelling. Schmalinski signed it, and, as we gather from Strouss’ testimony, in that condition was submitted to plaintiff and assented to by her. There is some dis - crepancy in the briefs whether plaintiff ever saw the paper; but the point is not of importance. It is quite certain, she acted on the belief in the representation that four thousand acres was the ■extent of Schmalinski’s ownership. But when Baker’s report was laid before Schmalinski, with the menace of the defeat of the exchange if the report became known to plaintiff, “ with some persuasion ” Strouss testifies Schmalinski was induced to agree to sell four thousand eight hundred acres, and four thousand in the paper was changed to four thousand eight hundred, and this change was without plaintiff’s knowledge or consent. If the paper had been submitted to plaintiff, and this alteration was after the .submission, that circumstance would certainly not put the transactions in a better light. Now, if Schmalinski was willing to part with four thousand eight hundred acres instead of four thousand for the plaintiff’s dwelling, the plaintiff should have been the recipient, not Strouss, who had assured her that she should get all the lands. The effect of the transaction was to deprive plaintiff of a large portion of that she had been assured she was to get. It was a fraud on the part of Strouss. Was not the transaction of a nature to suggest the fraud to any one? The alteration óf a paper affecting another’s interest without his knowledge, is out of the usual course. Strouss testifies, the altered paper was that signed by Schmalinski, but it appears it was shown to her. Another paper to same purport, Strouss testifies, was signed by her. Both read that four thousand acres of the land were to be •conveyed for her dwelling. And her assent bo either or both was procured on the faith of the false representation that Schmalinski owned only four thousand acres. Both papers, it is testified, recited the conveyance of the lands was to be to Strouss, but announced were •to be in exchange for plaintiff’s dwelling. The relation of plaintiff as principal, who was to receive the land, and Strouss as her agent, was plain and known to Schmalinski. Strouss again testifies when the ■deeds, one to plaintiff and the other to her agent, were prepared, and before her signature, Schmalinski stated he thought plaintiff was to get all the land. But Strouss answered it was all agreed with plaintiff and it made no difference if Schmalinski got her dwelling. We think Schmalinski’s remark in this connection indicated his appreciation all was not right, and he should have adhered to his thought .and not yielded to Strouss’ assurance. The result of Schmalinski’s acquiescence was to contribute to the fraud of plaintiff’s agent, and under circumstances from which the fraud should have been inferred. Then, too, the gift of the lands to Strouss, in direct connection with Baker’s report of their condition, implied Strouss was not to submit that report to his principal. It was his duty to give plaintiff the information of the true conditions of the lands. The-gift impliedly exacted the pledge that duty should not be fulfilled. Strouss conformed to the pledge and Schmalinski got the dwelling. The tendency and effect of the gift was to close the mouth of Stroussin respect to the communications duty required he should make to his principal. Schmalinski in this view can not urge that plaintiff has no claim to relief because she had an agent. The agent was in effect controlled by the gift of Schmalinski, and not by duty. In this view, too, we think Schmalinski is not free from responsibility for the success of the false representations under which plaintiff parted with her property.

The grounds we have announced dispose of the case, involving in the main questions of fact; we might have simply announced our conclusions, but that would not have been consistent with the right of the litigant to know the grounds of decision. There are-phases of the litigation on which we have not touched, because not necessary. The case is presented by defendants in this court without reference to any questions of the admissibility of the testimony. We have endeavored to give the requisite attention to all parts of the voluminous record, and to weigh with care the argument of the defence, and if there are points of that argument not discussed in the-opinion it is not because they have escaped our attention, but that the case is dominated by the views we have expressed. The controversy, in our opinion, does not at all involve the question of the value of plaintiff’s dwelling. Hence, we have excluded from consideration the testimony and discussion on that point. The issue is whether the lands were of the character represented. The effect of the alleged deficiency and non-warranty in respect to-property given in exchange, is a question not free from difficulty, but not necessary to be considered. There is a question raised whether the deed to Strouss of the one thousand acres is in issue, plaintiff contending she asked no relief on that ground. We think the issue is substantially made in plaintiff’s last supplemental petition; the general issue was enough in the answer on this, and, for that matter, perhaps, on all points. Besides, the evidence on that point is in the record. We take occasion to say that, in our opinion, the insertion of the non-warranty clause affords no room for any comment, with respect to counsel, if, indeed, any unfavorable comment was intended.

The law will not hold a party bound when his consent is the result of error bearing on the substance of the contract, caused by fraudulent representations of the other party to the contract, or if not made directly by the other party, yet, by his act and conduct, he has contributed to make effective the false representations. In our opinion, plaintiff, in respect to the wrong of which she complains and the relief she seeks, is within this principle of law and the articles of the code. C. C., Art. 1847, 1848; 1 Story’s Equity Jur., Rees. 189, 191, 192-195.

As to the mortgage of Ehrstein, in our opinion, there is no básis to disturb it. We shall endeavor to secure plaintiff against that mortgage.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it dismisses plaintiff’s demands against Elise Schmalinski and husband, be avoided and reversed; that the ■exchange of plaintiff’s property for the lands of said Elise Schmalinski, by act of date 30th January, 1892, before Hooe, notary, be and it is hereby annulled, and the parties to said act are hereby reinstated in the ownership, the plaintiff of her dwelling and said Elise Schmalinski of her land, as that ownership existed before said act; that plaintiff do have and recover from said Elise Schmalinski and husband two hundred dollars, taxes paid on said lands, with interest from date of payment; that Samuel Schmalinski and wife do surrender to plaintiff, within twenty days from the filing of the mandate in the lower court, the note made by them of date the 10th of May, 1892, and secured by mortgage on plaintiff’s dwelling, or, in default thereof, that plaintiff do have and recover from said Samuel Schmalinski and wife one thousand dollars, with interest from 1st ■of January, 1893, the amount due on said note; that, in other respects, the judgment of the lower court be affirmed and that defendants pay costs in both courts.


author: Watkins, J.

text:
    No. 11,483.
    L. L. Austin vs. T. J. Williams, Jr. J. E. Hewitt, Intervenor and Third Opponent.
    A third opponent, contesting the rank of "plaintiff’s privilege, as well as the bona Jides of his claim, must stand or fall by his allegations. Reserving the benefit of a suit against the defendant, ho had previously filed, prevents his taking anything, hy way of opposition, that he seeks advantage of in such pending suit. Third opposition in one court cannot he used or employed as an accessory of another suit in a different court.
    APPEAL from the Ninth District Court, Parish of Red River. J.

      J. F. Pierson and O. W. Elam Attorneys for Defendant and Appellant :
    To entitle a creditor to intervene in the suit of another creditor of the- ■ common debtor it is necessary that such intervenor have a direct interest in the result of the suit by such other creditor, and the intervenor must be confined to his own interest therein.
    Such a creditor can not intervene in the suit of another creditor-against the common debtor for the purpose of obtaining in his-own favor a separate judgment against the common debtor. Lincoln vs. New Orleans Express Oompany, 45 An. 729; 44 An. 843.
    Where such a creditor, prior to his intervention in the suit of another-creditor, has brought a separate suit against the common debtor, he will not be permitted, on intervening in the suit of another creditor against the common debtor, to disintegrate the issues involved in his own suit, and try such issues piecemeal in his-intervention.
    Where the cause of action is not stated in the petition with sufficient precision, and the effect has been to surprise the defendant and prevent him from setting up the proper defence, the case will be remanded with leave to amend. Gremillion vs. Bonaventure, 4 An. 60.
    The decision of questions which turn on the construction of the petition, on which the rights of a litigant depend, ought not to irrevocably conclude such litigant in cases where the party and his counsel may well be misled. Barrett vs. Zacharie, 2 An. 656-
    Where plaintiff demanded a jury trial, without putting up the jury fee, the case was placed on the jury docket, but not stricken from the non-jury docket; the defendant- attended court till the judge announced there would be no jury the following week. The defendant failed to attend that week, and the plaintiff took judgment against him on the non-jury docket, when defendant-had material testimony in his favor to offer. Held: The defendant is entitled to a new trial, though the case should not have been placed on the jury docket. Lanier vs. Shuler, 13 S. W. 614; 77 Tex. 24.
    From the adoption of our O. P. it has been the settled construction of Arts. 389, 390 that the interest required to authorize an intervention must be direct and closely connected with the object in dispute, founded on some right, claim or lien either conventional or legal, and that ordinary personal creditors of a defendant have no right to interfere with the administration of justice between him'and other individual creditors who are pursuing their claim in the ordinary mode of legal procedure. Brown vs. Saul, 4 N. S. 434; Pierre vs. Marr, 7 N. S. 196.
   The opinion of the court was delivered by

Watkins, J.

The original suit was instituted by plaintiff on a claim of six hundred dollars for services rendered the defendant as overseer on his Elmwood plantation in the parish of Red River for and during the year 1893, and falling due on the first of December of that year. Averring a special lien and privilege upon the crops grown on said plantation during that year, and his fear and belief that the defendant would part with or remove same, he obtained a sequestration thereof.

Soon after the aforesaid sequestration the intervenor appeared and filed opposition in the sequestration suit, the purport of which is that he had filed a suit on the 12th of December, 1893, against same defendant in the District Court of the parish of De Soto, wherein he claimed judgment for the sum of eight thousand six hundred and fifty-three dollars and forty-one cents, and in which he had procured the sequestration of certain property of the defendant, consisting of corn, cotton and cotton seed, which suit and seizure are referred to and made parts of his said.opposition.

That in said court he also obtained an attachment of the defendant’s property in said suit, situated in the parish of De,Soto, “and which your petitioner hereby affirms and in no way abandons.” The opponent further represents that said sum of money was advanced by him to the defendant to enable him to make and gather his crops on the aforesaid plantation in the parish of Red River during the year 1893, and to secure which he has a lien and privilege on said crops as the furnisher of necessary plantation supplies.

He further represents that the plaintiff’s suit was brought at the instance and through the procurement of the defendant, and that his property was sequestered with his consent, averring that the plaintiff was not indebted to the defendant, at the time, in any amount.

His prayer is for judgment against the defendant, enforcing his lien and privilege on the defendant’s crop of 1893, and rejecting the demands of the plaintiff altogether, and especially his demand for a lien and privilege.

The plaintiff excepted to the petition of intervention, on the ground that it disclosed no cause of action and no interest in the subject matter of his suit, which opponent seeks to protect or defend, and therefore his opposition should be dismissed.

In the alternative of said exceptions being overruled, the plaintiff ■answers and avers that third opponent has nob intervened in good faith, but that the purpose and object thereof is to hinder and delay him in recovering a judgment against the defendant with a recognition of privilege on his crops. He further avers that, by virtue of third opponent’s having judicially made claim to a priority of privilege on the crops of the defendant and respondent, he has estopped himself from disputing the debt and privilege he asserts against the defendant, and hence the opposition should be dismissed.

The defendant, in answer to the third opposition, denies all and singular the allegations therein contained, and especially denies the allegations of fraud and collusion therein charged.

His answer to plaintiff’s demand is a general denial. On these issues the case was tried and the following judgment rendered, to-wit:

First: In favor of the plaintiff against the defendant for the sum of five hundred and eighty-six dollars, recognizing and enforcing his lien and privilege as overseer on all the crops by the defendant produced on his Elmwood plantation, in the parish of Red River, in 1893, condemning same to be seized and sold.

Second: In favor of third opponent as against the defendant, “ recognizing and enforcing his lien and privilege as furnisher of necessary plantation supplies, to the extent of seven thousand one hundred and thirty-five dollars, on all the crops made and raised by (the defendant) during the year 1893.”

Third: That as between the plaintiff and the intervenor, the former is entitled to preference on the proceeds of sale.

From that judgment the defendant, alone, appealed, after making an unavailing effort to obtain a new trial. In this court neither the plaintiff nor the opponent has made any appearance, by counsel or brief, and neither has answered the appeal.

In this court defendant’s counsel makes complaint of the second paragraph of the judgment alone, thus acquiescing in other portions of the decree.

The question for decision is, whether third opponent was entitled to recover a judgment against the defendant, “ recognizing and enforcing his lien and privilege as fnrnisher of necessary plantation-supplies, to the extent of seven thousand one hundred and thirty-five dollars, on all the crops made and raised (by him) during the year 1893;” or should it have been restricted to the question of fraud on the part of the plaintiff and defendant in the institution of this suit, and that of the relative rank of the respective privileges-of the plaintiff and third opponent.

The defendant’s contention is, that third opponent’s right to judgment is confined to the last two propositions, and that the second paragraph of the judgment is ultra petitionem, and was a complete surprise to him, from the effect of which he is entitled to relief at our hands.

From the foregoing synopsis of the petition of third opposition, it appears that his complaint is, that at the time plaintiff filed suit, and sequestered the defendant’s crops on his plantation in Bed Biver parish, nothing was due him, and that the suit and sequestration were the result of a fraudulent combination between the plaintiff and defendant-.

It is apparent that the object to be attained thereby was the defeat-' of plaintiff’s seizure of defendant’s crops, on which opponent claimed a superior, or ranking lien and privilege, and against which he had obtained writs of sequestration and attachment in his suit in De Soto parish, though he had not, at the time, procured a seizure thereunder.

Third opponent’s effort was, undeniably, to forestall the plaintiff’s seizure, and secure control of the defendant’s crops, in such manner as to render his suit and writs in the parish of De Soto, effective.

The opening averment of his opposition proves this, for it makes specific reference to the De Soto suit, stating its date, amount claimed, the writs therein issued, and the relief prayed for, and is concluded by the statement, “ and which (suit) your petitioner hereby affirms, and in no way abandons.”

The further averment in reference to the lien and privilege is adjuvatory of the allegation previously quoted in regard to the De Soo suit, to which it must be held to refer. His prayer for judgment against the defendant for the recognition and enforcement of his lien on the crops of 1893 must be taken in connection with the immediately following request, that the demands of the plaintiff be rejected, and especially his demand for a lien and privilege — the two being correlative parts of the same relief — each having reference to the principal object to be attained by the suit, the control of defendant’s crops.

It must be observed that the third opponent demanded no writ, and obtained no seizure under his opposition. The assertion of his rank and priority over the claim and privilege of the plaintiff, as well as his charge of fraud against the plaintiff and defendant, are admissions of plaintiff’s dominion and control of the res, rendering his opposition necessary.

We think third opponent’s demand, properly construed, restricts his right to judgment to the question of fraud and rank of privilege, and that he was entitled to no other judgment or relief. Reserving, as he does in his petition, all of his rights and claims in the De Soto suit against the defendant, the third opponent must resort to that jurisdiction for the ascertainment and determination of same.

His third opposition in the Red River court can not be employed as .an aid or auxiliary of his suit in the De Soto court against same defendant.

We are of opinion that the contention of the defendant is correct, and that the judgment appealed from should be amended and affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended as to eliminate therefrom that portion which recognizes the lien and privilege of third opponent for necessary plantation supplies furnished to the defendant to the extent of •seven thousand one hundred and thirty-five dollars on all the crops made and raised by him during the year 1893, and that as thus amended same be affirmed, costs of appeal to be taxed against third •opponent as appellee.


author: Breaux, J.

text:
    No. 11,456.
    R. B. Hollingsworth vs. Atkins Brothers.
    The unsworn declaration oí a partner reduced to writing some time after the transfer (the partner testified in the case and said nothing of additional interest included in the transfer) will not be admitted in evidence, to add to or to explain the terms and conditions of the contract of lease transferred.
    •On the dissolution of a provisional seizure for informality the plaintiff owes actual damages caused by the wrongful issue of the writ.
    'The citation was addressed to the defendant partnership.
    It was served on one of the partners, as if the partnership was a commercial partnership. It was not a commercial partnership quoad the lease to them of immovable property.
    •One of the partners bonded the property (provisionally seized) in the name of the partnership and received and disposed of the property in the name of the partnership.
    ’ 'The partnership is no longer in a position, legally, to invoke the want of citation of one of the partners.
    The real property leased to a commercial partnership c'reates quoad that property a joint and not an obligation in solido.

    The transfer of a lease without stipulation does not carry with it other rights than those stated in the contract.
    The testimony to prove tuenumber of acres leased is conflicting. The weight of the testimony supports the jury’s verdict.
    The lessor must bear the expense of extraordinary repairs rendered necessary by an overflow.
    ‘The inundation of the land was not unprecedented and gives no cause for reduction on rent account.
    Proof fails to establish an amount of assessment for taxes reduced, of which the defendant claims the benefit.
    APPEAL from the Ninth District Court, Parish of Red River. Hall, J.

      J, C. Egan for Plaintiff and Appellant:
    'The objection to citation in a suit commenced by conservatory pro- / cess is waived by bonding the property. Cross on Pleadings, p. 165, Sec. 170; Bush vs. Dewing, 24 An. 272.
    The bonding of property attached was giving an effect at least equal to an appearance curing a defective citation or absolute want of citation. Williams et al. vs. Gilkerson-Schloss Commission Company, 45 An. 1013.
    The map of a surveyor made from an ex parte survey may be received in evidence as a memorandum from which he can testify.
    The unsworn interpretation of a written transfer, made several years previous, which interpretation was made, written and signed several years after the transfer, is not admissible in evidence, when the party who signed it is present and sworn as a witness.
    Commercial partners are bound in solido for the debts of the partnership. O. C. 2873.
    They (particular partners), in order to entitle them to the protection, of this rule of law (that is, not to be bound by the acts of particular partners), must not do, or consent to nor suffer anything to be done, which may hold them out to the world as general . partners; and it would always be prudent and proper to give public notice to the community that the partnership is special and of the particular species or traffic to which it is confined. Smith on Mercantile Law, p. 73.
    If the partners are privy and silent and permit him to go on dealing in this way without giving notice, the question will be whether-subsequent approbation is not equivalent to previous consent. Story on Partnership, note p. 212.
    A debtor can not repudiate a contract of which he retains the fruits. 36 An. 259.
    Though a partnership engaged strictly and solely in the business of farming by raising the products of the farm has no occasion to draw bills of exchange, and one partner can not bind the rest by such bills, it is otherwise when the firm is engaged in conducting a saw-mill and buying and selling lumber. In such cases the firm is properly a trading partnership, and can bind each other by drawing bills of exchange. 22 Howard U. S. Rep. 265.
    Damages for the wrongful issuance of a writ of provisional seizure will not be allowed when the seizing creditors acted without, malice and when the circumstances are such as to give probable cause for the seizure. 6 An. 402.
    The substitution of the new lessee to the old one and the discharge of the latter is a novation. 14 An. 344; 0. 0. 2185, 2189.
    The tenant of a predial estate can not claim an abatement of the rent under the plea that during the lease either the whole or a part of-the crop has been destroyed by accident unless these accidents be of such an extraordinary nature that they could not be foreseen by either of the parties at the time of the contract, such as the ravages of war extending over a country then at peace and when no one entertained any apprehension of being exposed to invasion or the like. But in these cases the loss suffered must be equal to one-half the value of the crop at least to entitle the tenant to an abatement of the rent. C. C. 2743.
    An overflow on the Mississippi river is not an unforeseen event, and does not entitle the tenant to an abatement of the rent.
    The periodical overflow of a river is not an extraordinary accident, and if a party seeks to give to an inundation that character he must show that it was unusual, unforeseen, and one to which the country is not ordinarily subjected. Vinson vs. Graves, 16 An. 162.
    21 An. 535, in which it was decided where a plantation on Red river was overflowed that it was not an unforeseen accident, and affirms Vinson vs. Graves; also Jackson vs. Michael & Murdock, 33 An. 728.
    ■Overflows in the past history of this State have been frequent occurrences, and they are therefore not- of such an extraordinary nature that they could not have been foreseen. J. N. Payne, Jr., vs. James & Trager; 45 An. 381.

      Pugh & Wilkinson Attorneys for Defendant and Appellee:
    Citation is necessary to each member of an ordinary partnership. Process served on one member will not bring the partnership into court, and the judgment against the partner not cited is an absolute nullity. LeBlane et al. vs. Marsoudet, 25 An. 464.
    In a purchase of real estate by a commercial partnership, the same becomes the joint property of the partners, and, by parity of reasoning, in a lease of real estate by a commercial partnership, the same becomes the joint property of the partnership. Thomas vs. Scott, 3 R. 356; May ef al. vs. Railroad Co., 44 An. 444.
    When one member of an ordinary partnership appears and bonds the property provisionally seized, such does not cure the want of citation on the other partner not cited. Love vs. Dickson, 7 N. S. 161.
    A contract of lease for a term of five years is an entity, and any over-payment for one year inures to the benefit of subsequent years.
    If in the lease of a predial estate the premises have been stated to be of a greater extent than they in reality are, the lessee may claim an abatement of rent. C. 0., Art. 2701.

      When a loss deed is made the basis of a defence, its loss need not be-advertised before it is admissible to introduce parol proof of its contents. The same is true of an administrator’s bond, and for-the same reason the notes of a surveyor, shown to be Correct, need not be advertised as lost before introducing parol evidence-of contents. Gordon vs. Penn et al., 26 An. 367; Oox vs.. Bradley, 15 An. 529.
    On a plantation that had not overflowed as late as June since 1866,. an overflow at that season of the year must be considered as-unusual, unforeseen, and one to which the country was not ordinarily subjected. It is only the periodical overflow of the waters-of a river that is not an extraordinary event. C. 0., Art. 2743;. Vinson vs. Graves, 16 An. 162.
    Repairs and reconstructions rendered necessary by an overflow must, be borne by the lessor. 0.0. 2716-17-18, 2693-94; Payne vs. James et al., 45 An. 381.
    One who secures a reduction of his taxes on leased property of fifty per cent., on the condition that he will grant a reduction of rent-to his lessee to the same extent, can not, after obtaining and enjoying the reduction of his taxes, refuse to comply with the-condition on which it was granted. Kenner vs. Holliday, 19 La.. 154; O. P. 35; O. O. 1890, 1902.
    Attorney’s fees are allowable on the dissolution of a writ of provisional seizure, as well as other actual damages. Fernandez & Co. vs. Miller, 26 An. 120; Barrimon vs. McFeely, 32 An. 1179..
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims rent as lessor of a plantation on Redi river known as the Jordan Ferry ” plantation.

The defendants held as transferees of Smith Bros, for the years. 1891 to 1894.

For the year 1892, the defendants, after they had became transferees of the lease, executed two notes, one for the sum of two thousand and thirty-two dollars and sixty-six cents due November 1, 1892, and the other for five hundred and eighty-eight dollars due on the 30th of that month.

Prior to their maturity, the plaintiff instituted suit on these two notes and caused a writ of provisional seizure to issue.

The defendants moved to dissolve this writ of provisional seizure on two grounds.

1. That the writ issued without cause.

2. That the affidavit to the petition for the writ was made by the attorney when the plaintiff was present.

The first ground was overruled; the second was pronounced fatal to the writ; the provisional seizure was dissolved for the reason that it is only in the absence of the principal that the attorney can make the affidavit.

Atkins Bros., the defendants, obtained a release of a portion of the property seized, by executing a forthcoming bond on the 11th day of October, 1892.

A second forthcoming bond was executed on the 17th day of October and all the property under seizure was released.

Plaintiff amended his original petition and procured another writ of provisional seizure and caused the seizure of the property on which he claimed a privilege.

On the 10th day of January, 1893, the defendants executed a forthcoming bond and obtained its release from the second provisional seizure made.

Subsequently, one of the partners interposed an exception on the ground that he had not been cited.

The exception was overruled.

The defendants answered.

The case was tried by jury.

The verdict was for plaintiff against the defendants in solido for the sum of one thousand four hundred and seventy dollars.

After an ineffectual attempt to obtain a new trial, the plaintiff appeals.

Bill ok Exceptions.

The defendants on trial attempted to prove their right to any over-payment made of rent for the year 1890 by those from whom they leased.

To that end they offered to prove that in the transfer of the lease to them by Smith Bros, the latter intended to convey their right to claim any over-payment of rent on account of any deficiency of acreage in the year before stated.

The paper offered to prove intention was signed by a member of the firm of Smith Bros, some time after the suit at bar had been instituted.

This member of the firm had testified as a witness in the ease, and said nothing about this transfer.

The court a qua held that, if he was to give an interpretation to the transfer different from what it showed on its face, he should give it under oath, and not by written statement.

No rule sanctions the method adopted to prove the intention •of the contracting parties.

If the act needed interpretation in order to include all the rights transferred, the writing offered, being unsworn to and ex parte, was not admissible, for it could add nothing to the legal rights of the parties.

The ruling was correct and the document properly excluded.

The amended petition for a provisional seizure, and the second seizure mad'e, leaves but little to discuss in matter of the dissolution •of the original writ, save the damages claimed to be due because of ils illegality.

Alleged Want of Citation.

One of the defendants pleads and argues that he was not cited; that the partnership of which he was a member was not a commercial partnership, and that the service of the citation addressed to the partnership does not cure the want of citation on the partner not cited.

The defendants having, in the name of the partnership, applied to the court to bond the property, and having executed a forthcoming bond in favor of the sheriff and taken- possession of the property, have cured any defect of citation, or the absolute want of citation.

Be the partnership commercial or ordinary, the fact remains that the bond was executed in the name of the partnership, to whom the property seized was delivered.

A partnership can not repudiate a bond whereby it has obtained the possession of property.

The records do not disclose that it was the act of one of the partners, as argued, but that it was the act of the partnership.

There was an appearance made in the case, by the act of bonding. It was the condition precedent to obtaining release of the property on a forthcoming bond.

Such was the ruling in a number of cases of this court. The first •case being Rathbone & Co. vs. Ship London, 6 An. 439; Bush & Thompson vs. Darring, 24 An. 272; Williams vs. Gilkerson-Sloss Commission Company, 45 An. 1013.

An Ordinary Partnership.

The lease of real estate by a commercial partnership will not have the effect of binding the partners in solido.

The lease and the purchase of real estate are not different, in so far as relates to the extent of the ownership of the partners of an ordinary partnership. The real property bought by a commercial partnership is the joint property of the individual partners.

The same rule will apply to a lease.

The articles of the code limit commercial partnership to the purchase of any personal property and its sale; to carrying personal property for hire in ships or other vessels. 0. 0. 228.

In interpreting the provisions of the law relating to commercial partnerships this court has decided that the purchase of real estate is foreign to the purpose of a commercial partnership.

The reasoning which leads bo this conclusion and establishes its correctness applies with equal force to the contract of lease.

The immovable property leased by a commercial partnership is held by the partnership for the purposes of the firm under conditions similar to those attending the ownership of immovable property, and ordinarily the obligations of the partners are joint.

It occurs that in the case at bar the responsibility of the lessors is not materially lessened by this joint liability.

All the property provisionally siezed was subject to the lessor’s privilege.

The right is not limited by the joint responsibilty, for the lessor’s privilege covers the whole property.

Even the property of third person is subject to that privilege when it is found on the property leased.

A partner whose obligation is only joint and who has furnished a release bond, to pay the judgment should he be condemned, must be held bound, to an amount equal to his obligation on the bond.

Thus bound it must be of little moment to him whether the obligation is joint or in solido.

Moreover the judgment appealed from condemns the defendants in solido to pay the amount pronounced due.

The jury returned that the defendants were liable in solido.

Neither of the defendants has answered the appeal and prayed for the amendment of the judgment.

The judgment as to them must remain. O. P. 889.

To the amount of the judgment the question of solidarity is finally determined.

In reference to the balance due it is secured to the limit of the obligation on the bond of release.

Acres op Land Leased.

The defendants claim in their reeonventional demand a deduction for twenty-eight and three-fourths acres, alleged shortage in the-number of acres for the years 1890, 1891 and 1892,atfour dollars and fifty cents an acre, and a deduction for a shortage of thirty-one-acres for the year 1890 at five dollars an acre.

The jury, in making up their verdict, erroneously included over-payments by Smith Brothers, transferrors of the lease to the defendants, though the court had excluded testimony offered to prove that-claim.

A lease transferred will not include a right to amounts overpaid by the transferrors at the date of the transfer, unless it is expressly-declared that the right is transferred with the lease.

It is a right distinct from those under the lease and not carried with the transfer of the lease without some statement to that-effect.

The defendants not having been subrogated to the right, it remained with those who paid the amount without having received consideration therefor.

The right of a purchaser of a lease (without qualification), for its unexpired term, commences from the date of purchase. Walker &. McVean vs. Dohan, 89 An. 745.

The over-payments made by the defendants themselves were for-lease of lands for 1891 and 1892, and we are now to determine whether they should be deducted as claimed.

Regarding this area, it is proved that in February, 1892, the plaintiff and one of the defendants, for the purpose of fixing the amount of the rent notes that were executed by the defendants to-the order of plaintiff, the lessor, agreed that there were four hundred and twenty-eight and three-fourths acres of land contained in the tracts leased.

Subsequently, the defendants had the lands surveyed, in order to-establish the number of acres they had leased from the plaintiff.

The land was leased subject to measurement.

The surveyor, after his survey, fixed the number of acres at four hundred and seven acres and informed the defendants that that was the entire area of the leased lands. The plaintiff was not notified Of the survey.

After the suit had been instituted, the plaintiff employed the same surveyor as the one that defendant had previously employed; the survey was made ex parte. No notice whatever was given to the defendant.

The last survey shows an increased area of twenty-eight and three-fourths acres.

We gather from the conflict of testimony that in the last survey a less number of acres was deducted as .uncultivable than was deducted in the first survey.

There aré sloughs and other places not cultivable in the fields, also skirt lands not cleared for cultivation.

The jury determined that the first survey was correct.

The difference is not great. It is a question purely of fact. The evidence is conflicting. The principle is laid down and generally received as correct, that'where there is no decided preponderance of evidence on either side, the case depending mainly upon the conflicting testimony of the parties themselves who are equally respectable and unimpeached, the jury are the proper persons to decide between them as to whose testimony is entitled to the greatest credit and the verdict ought not for this cause to be disturbed. Proffat on Jury Trials.

There is in the case at bar a preponderance of testimony in support of the verdict. The surveyor himself does not depose that his first survey, considered correct by the jury, was incorrect. A verdict is entitled to the regard of an appellate court on questions of fact.

The overflow. The next item claimed in defendants’ reconvention is for repairs and reconstructions on the land leased.

The testimony shows that more than two hundred and fifty dollars were expended.

During more than a month in 1892 the place was covered by water several feet in depth.

The fences, the houses and cisterns were greatly damaged and partly destroyed. Extraordinary repairs were necessary.

Subsequently these expenses were incurred by the defendant.

These improvements consisted of reconstructions and repairs not in the line of the ordinary.

They were permanent and added value to the place. The plaintiff must bear the expense of extraordinary repairs rendered necessary by an overflow.

Alleged unprecedented overflow. The defendants claim that in consequence of an unusual, extraordinary and unforeseen overflow they were able to grow only about twenty-five or thirty per cent, of a crop after the waters subsided and to that per cent, he asks that .the rent price be reduced.

The testimony does not support defendants’ contention.

Inundations of these lands were not unprecedented. Witnesses deposed that they were entirely under water during several floods in preceding years. The intervals between the overflows were not of such number of years as to afford reasons to exclude all apprehension upon the subject. The accident was not of such an extraordinary nature that it could not be foreseen, and therefore it would not justify a reduction of the rent.

The lands are on a navigable stream,’which periodically overflows its banks in that section of the State.

It has never been decided by this court that the lease of lands thus exposed is subject, in effect, to the “high water clause” without stipulating that condition.

The following decisions control the case on this point: Vinson vs. Graves, 16 An. 162; Massur vs. Murray, 21 An. 535; Jackson vs. Michael & Murdock, 33 An. 728; Payne vs. James & Trager, 45 An. 381, and Art. 2743 of the Civil Code.

The defendants, in the order of their defence, next claim that the police jury having passed an ordinance, by which they reduced the assessments on all overflowed lands fifty per cent., provided that in cases of lessors they allowed a corresponding reduction in the rental; they are entitled to the bounty offered to the unfortunate land owners and lessees who were the victims of the overflow of 1892.

The records disclose that there was a reduction of the assessment made of defendant’s property.

The amount of the whole assessment is not proved, nor is it -established, with sufficient particularity, that reduction was made which should enure to the benefit of plaintiff’s lessor.

There was an attempt made to complete the proof regarding this reduction.

Upon objection, the testimony was excluded and no bill was reserved.

Dissolution op the First Writ.

The plaintiffs are entitled to damages, in a limited amount, for the wrongful suing out of the first writ of provisional seizure.

The evidence satisfies us that one hundred and fifty dollars is a reasonable amount. This includes the fees of attorneys and other expenses incurred in a defence, on motion to dissolve, which resulted in a dissolution of the writ.

Though the lessor has the right to detain the property on the leased premises until the rent is paid, and the removal of it gives just cause for the writ, the law requires compliance with its terms, and if dissolved because of informality, the defendant is entitled to damages to which he has been subjected. Fleetwood vs. Dwight, 8 An. 482.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the principal of the judgment against defendants from one thousand four hundred and seventy dollars, principal, to two thousand six hundred and twenty and sixty-six-one-hundredths dollars, with five per cent, interest on two thousand and thirty-two and sixty-six-one-hundredths dollars from November 21, 1892, and five per cent, interest on five hundred and eighty-eight dollars from November 80, 1892, subject to the following credits, viz.: Thirty dollars, an admitted error of calculation ; one hundred and thirty dollars, over-payment on acreage of lands leased; two hundred and fifty dollars, for extraordinary repairs ; one hundred and fifty dollars, damages caused by the illegal provisional seizure; that the defendants are bound in solido to the amount of one thousand four hundred and seventy dollars, and interest thereon, and jointly for the remainder due; that plaintiff’s provisional seizure be sustained and his lessor’s lien and privilege recognized on all the property seized, until payment of the whole amount of the rent, and that same be enforced on the whole of the property seized to the whole amount of this judgment, interest and costs.

As amended, the judgment is affirmed at appellee’s costs.


author: McEnerv, J.

text:
    No. 11,378.
    The East Louisiana Railroad Company vs. The City of New Orleans.
    Seo. 34 of Art. 135 of 1888 applies to street railways operated within the corporate limits of the city of New Orleans.
    The City Council of New Orleans has the power to refuse the grant of a right of way through the streets of the city to a railroad operated beyond the city limits. It can also demand a price for the privilege, and it can also, if it deems the exercise of the power reasonable and proper, grant the right of way to a railroad operating their lines beyond the city into other territory, without compensation in money, but for other considerations.
    In such a case, if the grant is accepted, it is irrevocable, except for a violation of their terms.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.

      Farrar, Jonas & Kruttsohnitt Attorneys for Plaintiff and Appellee:
    The city of biew Orleans had ample legislative authority to grant the plaintiff the right of way in question. Section 8 of Act No. 20 of 1882, paragraph 13; Art. 243, Constitution of 1879; Sec. 689, Revised Statutes; Duplessis vs. Brown, 14 An. 842.
    The plaintiff does not operate a street railroad, and the grant does not cover such a franchise; hence, the Act 135 of 1888, requiring street railway franchises to be sold at auction, does not apply. Booth’s Street Railway Law, Sec. 1.
    The grant having been lawfully and unconditionally made, and thus accepted and acted upon, is an executed contract, and is protected from impairment by the Oonstitution of the United States. It can not be withdrawn or onerously modified without plaintiff’s assent. Booth’s Street Railway* Law, Sec. 40; Oity vs. Telephone Company, 40 An. 41; St. Louis vs. Telephone Company, 148 U. S. 103.

      E. A. O’ Sullivan, Oity Atttorney, for Defendant and Appellant:
    The plaintiff in this case was bound to know that under the laws in force when Ordinance 6139 was passed that street railroad franchises could not be granted except at public auction, and to the highest bidder.

      He was bound to know that he could not acquire this valuable franchise without paying the city for it, and he was bound to know that all laws which permit the transfer of these franchises without advertising for what consideration parties desire to give had been abrogated by the act of 1888, arid that, therefore, his title to the same was null and void.
    Act 135 of 1888, Sec. 4, provides: “That said council shall not have power to grant, renew or sell or to dispose of any street railroad franchise except after at least three months’ publication of the terms and specifications of said franchise, and after the same has been adjudicated to the highest bidder by the comptroller, as provided in See. 21 of the City Charter.”

      €has. Louque, Attorney at Law, as amicus curise, submitted a brief.
   The opinion of the court was delivered by

McEnerv, J.

The plaintiff company has its domicile in the parish of St. Tammany, and operates a railroad from Pearl River Station, on the line of the New Orleans & Northeastern Railroad Company, to Covington, in said parish, and a branch to Mandeville, and has thirty-six miles of road in active use.

The charter of the company confers the power upon the directors to extend the road to points in Mississippi and Louisiana.

By an arrangement with the Northeastern Railroad Company, it runs its trains over that road to the city of New Orleans, at its terminus on Press street.

To facilitate its business in the transportation of freight and passengers, and for the convenience of its patrons, it obtained from the City Council of New Orleans, by Ordinance 6139, the privilege to construct and operate a railroad with steam power from a point on the Northeastern Railroad, where it intersects Edinburg avenue, through said avenue to Bayou St. John, across said bayou to the road-bed of the Spanish Fort Railroad, and over saidroad-bed to the corner of Canal and Basin streets.

No price was paid for this grant, and the consideration alleged is the convenience of the citizens of New Orleans, in giving them better access to the trains of the plaintiff company, which at present are sorrie distance from the centre of the city.

The plaintiff company accepted the grant and proceeded to comply with it, and expended some three thousand dollars in work, and in anticipation of its benefits constructed the Mandeville branch.

No price having been paid for the grant, the Oity Oouncil, believing it to be null and void, repealed the ordinance granting it. Hence this suit, to have declared null and void the repealing ordinance.

The action of the City Oouncil was based on the provisions of Sec. 84 of Act 135 of 1888. This section of the act manifestly applies only to street railway franchises, granted for the purpose of operating a road exclusively within the city limits. It does not apply to railroads carrying the mails and transporting freight and passengers long distances beyond the limits of the city. The Legislature never intended, and in the nature of things such intention would be impractical in execution, to cause railroads coming into the city from a distance to have the franchises of the right of way sold at stated times to the highest bidder. The act is limited in its application, when it says that the City Council shall have no power * * * “to sell or dispose of any street railroad franchise except after, at least, three months’ publication of the terms and specifications of said franchise, and after the same has been adjudicated to the highest bidder by the comptroller, as provided in Section 21 of the city charter.” No latitude of construction could make the provisions of this section of the Act 135 of 1888 extend to other than roads which are operated exclusively within the corporate limits.

The fact that the plaintiff’s road reaches the city over another road does not change its character into a street railway. Its attempt to reach the road over which in part it runs its trains is a matter of convenience. Its destination is still beyond the city limits, and practically it is a continuous line of road from the city to its objective point — Covington. If it ran its trains only from its intersection with the Northeastern Railroad within city limits, and carried passengers and freight between these points, it would be classed as a street railway and come within the purview of Sec. 4 of Act 185 of 1888.

But this is not a fact. The object of the plaintiff company is to carry freight and passengers on its own cars beyond the city limits to Pear River Station, when they will reach their own road-bed. As the road of plaintiffs is not a street railway, the City Council had the power to grant the franchise without requiring a compliance with Act 135 of 1838. Art. 243 of the Constitution.

The consent of the city is only necessary to grant the privilege of a right of way to a railroad running beyond the city’s limits. See 689 R. S.

Having granted the franchise to plaintiffs and it having been accepted the contract was perfected. New Orleans vs. Telephone and Telegraph Co. 40 An. 41.

In the ease of City of New Orleans vs. Telephone and Telegraph Co., 40 An. 41, this court said:

“ Obviously upon the clearest consideration of law and justice, the grant of authority to defendant when accepted and acted upon became an irrevocable contract, and the city is powerless to set it aside or to interpolate new and more onerous considerations therein. Such has been the well recognized doctrine of the authorities since the Dartmouth College case. 4 Wheat. 518.”

The city of New Orleans can as a matter of right refuse to grant the authority for a passage through its streets of a railroad. IL can also demand a price for the privilege. But it can also, as a matter of right, if it deems the exercise of the power reasonable and proper, grant the right of way to a railroad extending its lines into other territory without a compensation in money, but for other considerations.

In the instant case the council has granted to a railroad company a right of way through certain streets for the purpose of operating its road beyond the limits of the city. The grant has been accepted, and except for a violation of its terms it is irrevocable.

Judgment affirmed.